And in

tion of the legacy given him by the will of his great aunt. Dagley v. Tolferry,(p) when it appeared that the father had been paid his child's legacy, an acquiescence by the child for fifteen years did not extinguish his right to call upon the executors for repayment. When the direction to the executor is not to pay the legacy to the child, but the bequest is made to a trustee for him, the executor will be justified in delivering the money to the person so appointed. Hence, if the testator order the sum to be paid to the father, he will be a trustee for his child, and entitled to receive the money, and his receipt will be a good discharge to the executors.

Thus in Cooper v. Thornton, (q) the bequest was of 100l. "to Thomas Cooper, to be equally divided between himself and his family." The legacy was paid to Thomas by one of the executors, and the only question was, whether the payment was good against the claims of the infant children? and Lord Alvanley decreed in the affirmative, on the principle, that the bequest was to the father, in trust, to be divided by him between himself and family. And his Lordship put these cases, "if a man give a legacy to the senior Six Clerk, to be divided among himself and the other six clerks, I think it should be paid to the senior, and the executors not to be put to inquire who were the other six clerks. And that, if this had been a bequest of goods to A. to be divided between himself and family, A. with the assent of the executor, might bring trover for the goods."

So in Robinson v. Tickell,(r) the testatrix bequeathed to her niece Mrs. Robinson 2000l. reduced annuities in these words, "to M. Robinson for her and her children's use." The suit was instituted by Mrs. Robinson and her husband, for a transfer of the fund, which Sir W. Grant, M. R. ordered, referring to the last case.

We proceed to consider in the next place,

B.-To whom are to be paid legacies given to married woman. When bequests are made to the separate use of married women, they alone can give a good discharge for them. Their husbands have no interest in the funds, therefore their concurrence is unnecessary. But when the gifts are to married women generally, the money ought to be paid to their husbands; for the law will not allow a married woman either to receive or pay money, without the concurrence of her husband; so that unless she act as his agent with due authority,(s) and the legacy is paid to her in that character, payment of it to her alone is void against him, and he may recover it against the executors :(t) notwithstanding she is divorced a mensâ et thoro.(u)

But if the husband have not made any provision for his wife, the executors may decline to pay the legacy, until he consent to make a suitable provision for her, as the Court of Chancery, upon the bill of the husband for the money would refuse to order payment to him, unless he consented to a reasonable settlement out of it upon the

h) Ante, p. 590.

(9) 3 Bro. C. C. 96. affirmed on appeal by Lord Thurlow, ibid. 186.

(r) 8 Ves. 142.

(t) Palmer v. Trevor, 2 Vern. 261. u) Stephens v. Totty, Cro. Eliz, 908. title Legacies (K.)

(8) Palm. 206. 2 Freem. 178.

1 Roll. Abr. 343. 2 Ib. 301. Bac. Abr.

legatee. The Court is in the constant habit of acting in this manner; therefore one authority upon the subject shall suffice.

In Brown v. Elton, (x) the plaintiff married a young lady who was entitled to a legacy payable on her marriage. The plaintiff demanded the money, which the executor refused to pay, unless the husband would make some settlement or provision upon his wife. The plaintiff refused to do so, and commenced the suit to recover the legacy. The Master of the Rolls decreed, that the plaintiff should lay proposals before a Master for a settlement, and pay the costs of the suit: from this decree he appealed to Lord King, C., who confirmed the decree, except as to costs, which he thought ought not to be paid by a man, merely because he insisted upon a right which the law gave him.

His Lordship's sentiments upon Courts of Equity abridging that right, were expressed to the following effect: "I found it to be the practice at my coming into this Court, to enforce the husband, before he recovers his wife's portion by the aid of equity, to make a settlement; and as such practice has so long obtained, I shall not at this time take upon me to alter it, although it seems to break in upon the legal title, which the husband has to his wife's personal estate. This method, however, intended originally as a cautionary provision in favour of the wife, has sometimes proved inconvenient; yet custom and long usage have sufficiently established it."

But when the wife has eloped from her husband, and cohabits with another man, the executor may refuse payment of her legacy to her husband, without the direction of a Court of Equity. First, because, in such a case the Court will not make any provision for such a woman, while she continues in that state of life; for the effect of the provision would be to enable her to continue the same criminal intercourse. And secondly, it will not order any part of the money to be paid to her husband, as he neither supports her, nor can claim any portion of the fund until he make provision for her, which the Court will not direct in this instance. It seems, that all it could do would be, to order the legacy to be paid into Court.(y)

Yet where not any criminality attaches to the wife, but, while she is living apart from her husband under a deed of separation, a legacy is given to her, as the Court will interpose in her behalf for a provision, and the husband is entitled to the money upon making it,(z) the executor may insist upon a settlement on the wife, as a condition preceding his paying the legacy to the husband.

It seems, that if the feme-legatee be the subject of a foreign state, by the law of which her husband would be entitled to receive the whole of her property, without making any provision for her, the Court will order the fund to be paid to her husband, without requiring him to make any settlement, (a)

The Court, in making a provision for the wife, always includes the children of the marriage. But whether the husband shall make (x) 3P. Will. 202.

(y) See Ball v. Montgomery, 4 Bro. C. C. 339. 2 Ves. jun. 191. S. C. Carr v. Eastabrooke, 4 Ves. 146. Law of Husband and Wife, 1 vol. c. 7. where the subject is more particularly considered.

(z) March v. Head, 3 Atk. 720. and Law of Husband and Wife, 2. vol. ch. 22. (a) Vid. Campbell v. French, 3 Ves. 323. 1 Anstr. 63.

any such provision, before he receives the legacy, solely depends upon the wife. For if she, at any time before the business is completed, appear in Court, and consent that her husband shall have the whole of the legacy, it will be so altered that, although the children be thereby disappointed, (b) yet, if after an order made for the husband to lay proposals before a Master for a settlement, the wife die without waiving it, her children will be entitled to prosecute the order, and obtain a provision.(c)

The equity of the wife to oblige her husband to make a suitable provision for herself and children, in consideration of her fortune, in instances where he cannot obtain the whole or part of it without the assistance of a Court of Equity, is obligatory upon all persons claiming generally from or under him, as executors, assignees in bankruptcy, or insolvency, or assignees by deed in trust to pay debts. So that, if the husband become a bankrupt or take advantage of the insolvent acts, or assign his property to trustees for the benefit of his creditors, including the interest of his wife, they will be obliged to make provision for her and children, before they be permitted to receive it, whether the legacy be absolute or for life only.(d)

Whether a particular assignee by purchase from the husband, of the wife's legacy be liable to her equity for a settlement, has been a question of considerable doubt, and great men have entertained contrary opinions on the subject. It seems however to be the better opinion that such an assignee will not be allowed to take the wife's equitable property, without making a provision for her, as a contrary adjudication would enable the husband to defeat at all times the care and caution of the Court, by his taking up money of a third person and assigning the legacy in payment. (e)

It has been generally understood that this rule of the Court extended to cases, as well where the wife was only entitled to a life estate in the fund, as where the bequest to her was absolute. But there is a recent determination marking a distinction between the two instances. It was decided that if the dividends of stock be bequeathed to a married woman for life, her husband may sell it, and the purchaser is under no obligation to make a provision out of it for the wife and children.

The case alluded to is Elliott v. Cordell, (f) in which the testator bequeathed to his niece Mrs. Elliott the dividends of certain imperial annuities for life. She had infant children unprovided for, and the dividends of the imperial annuities were sold by her husband to the defendant, and were assigned by her and her husband to a trustee for the defendant. The question was, whether Mrs Elliott was entitled to a provision by the purchaser out of the dividends? And Sir John Leach, V. C. determined in the negative.

As the last may be considered an important decision, it becomes necessary to ascertain with precision the weight of the principal

(b) See Law of Husband and Wife, ch. 7. for further particulars.

(c) Ibid. where the wife's consent will and will not be effectual, see Law of Husband and Wife, 1 vol. ch. 6. p. 243. to 255. and vol. 2 ch. 20. p. 210, &c.

(d) 5 Madd. 156. and see Husband and Wife, 1 vol. ch. 7. p. 266. Pryor v. Hill, 4 Bro. C. C. 139. and Burdon v. Dean, 2 Ves. jun. 607.

(e) Husband and Wife, ch. 7. p. 266, &c. and Salisbury v. Newton, 1 Eden. 370. (ƒ) 5 Madd. 149.

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4 G

reason assigned in support of the judgment, in order to discover the necessity for distinguishing between an interest for life, and a gross sum of money bequeathed to a married woman, in regard to her title to a provision against the vendee of the husband: for it was admitted that, as against the husband his assignees in bankruptcy, or under the insolvent debtors act, the wife is entitled to a settlement.

The Vice Chancellor said, that, where the equitable interest given to the wife was absolute, all persons claiming under the husband took his interest, subject to the same equity with which it was affected in his possession; but where that interest was for life only, the husband was entitled to enjoy it without making any provision for his wife. But it is presumed that the latter proposition must be received with limitation. For if the husband can procure payment of the annual produce of the fund, he has the same right to enjoy it without recal, as if it had been a gross sum absolutely given to his wife, the receipt of which he had procured without suit. But if he be obliged to resort to a Court of Equity for payment of either, then it is considered that the Court will not assist him, previously to submission, to make a settlement on his wife. That this would be the case, if the interest of the wife was only for life is not destitute of authority, as was supposed by his Honour, so that his apprehensions that in determining in favour of the wife, he should not be administering the law of the Court, but be making a new law, (a jurisdiction he disclaimed), do not seem to have been well founded. We have the authority of Lord Rosslyn for the proposition, that, whether the interest of the wife be only for life, or be absolute, in the property, the husband cannot enforce in equity the payment of it, without first consenting to make a settlement; and if such be the rule as considered by his Lordship, then upon the principle admitted by his Honour in the present case, the husband's particular assignee must take the assignment of the chose in action, subject to the same equity.

In Ball v. Montgomery,(g) 5000l., three per cent annuities (the wife's property) were settled upon her marriage, but no provision was made by the settlement for the payment of the dividends during the overture; which, on the ground of mistake, the husband sought to rectify by the aid of a Court of Equity, and he prayed that the dividends might be declared to belong to him during the marriage in opposition to his wife, who had eloped from him and was living in adultery, she claiming such dividends to her separate use under an alleged prior agreement. Lord Rosslyn refused to correct the settlement, as, without an express provision, the dividends were payable to the husband during the coverture. The question then was, whether, as the husband, who would in an ordinary case be entitled to the dividends, was so in the present instance? and if entitled, whether he ought to make a provision for his wife; and it was admitted by counsel on both sides, that where there was not any contract for the husband to receive the dividends of property belonging to the wife during the coverture, the husband, if he were obliged to resort to equity to compel their payment, must submit to

(g) 4 Bro. C. C. 339. 2 Ves. jun. 196. S. C.

make a provision for his wife, (h) but the counsel for the husband contended that there was such a contract in this instance, which was denied by the Court. And Lord Rosslyn said, "I can make no distinction between this case and that of a sum of money so given, that the husband could not obtain it, but by coming to this Court, which is the case, wherever a woman is entitled without an appropriation.(i) The delinquency of the woman is in this case a reason for not giving it to her, and I cannot give the whole to the husband, on account of her interest. I must secure a part for her, or reduce her to beggary. This will lead to an agreement to make a provision for her. Probably, had the last case been cited in argument, or occurred to the Vice Chancellor, his decision would have been otherwise than what it was. Therefore the case of Elliott v. Cordell wants confirmation.

An executor or trustee may pay the wife's legacy to her husband, which will defeat her right to a settlement; but if there be a suit pending, the executor or trustee cannot make the payment, because his office is suspended, and the Court of Chancery has become the trustee.(k) (1)

The recent case of Adams v. Lavender,(m) determined that the wife was entitled by survivorship to a legacy which devolved upon her during the coverture; and for recovering which a suit had been instituted by her husband in their joint names, and a decree had been obtained during his life, for an account merely, and not for the actual payment of the money due. Alexander, C. B. observed, that no case he could find went the length of showing, that if the husband and wife sued in their joint names, a decree for payment would have the effect of barring her under such circumstances, a Court of Equity would follow the rule, at law. But in this instance, the decree had not gone so far, but only to the extent of an account before the Deputy Remembrancer.

C. With respect to the payment of a legacy to a lunatic.

A lunatic is legally incapable of contracting, yet as he may have lucid intervals, acts done by him during such interval of sanity are binding ;(n) but otherwise his acts (except by matter of record,)(0) are void at law, and after office found may be avoided by the King, by virtue of the statute de prerogativâ regis.(p) The King is absolutely entitled to the profits of an idiot's estate, subject to the maintenance of the idiot;(q) but with respect, to lunatics, he is merely a trustee, and, by special warrant, usually entrusts the Chancellor, as Keeper of the Great Seal, with the care of lunatics. The Chancellor, after office found, appoints a committee of the person and estate of the lunatic; and, thus appointed by and under the control of the Chancellor, the committee is invested with all powers necessary to the discharge of his office, as bailiff and receiver of the

(h) 2 Ves. jun. 196. 197.

(i) Or as in Vesey, "and it is not specifically given to the husband."

(k) Murray v. Elibank, 10 Ves. 90. Macaulay v. Philips, 4 Ves. 18. Doswell v. Earle, 12 Ves. 473.

() As the rights of the wife and children to a settlement are fully detailed in 1 vol. of Roper's Husband and Wife, c. 7. it is thought unnecessary to enter further into the subject in this place. (m) M'Clel. & Young. R. Exch. 41. (n) 9 Ves. 610. (0) Beverlay's case, 4 Coke, 127. (p) 17 Edw. 2. c. 10. (9) Ibid. c. 9, 2 Schó. & Leaf. 153. In re Fitzgerald, 435.