This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
2 Dugan v. Gittings, 3 Gill 138. But see Brown v. Conger, 8 Hun (N. Y.) 625.
3 Greene v. Cramer, 2 Con. & L. 54. 4 Luders v. Anstey, 4 Ves. 501.
Ayliffe v. Tracy, a father had written a letter to his daughter, agreeing to give her £3,000 portion, but this letter was not shown to the plaintiff, who became her husband, and afterwards brought his bill to have the promise enforced. Lord Chancellor Macclesfield dismissed the bill, remarking that there was here no ingredient of equity, and that the husband could not be supposed to have married in confidence of the letter.1 In point of fact the letter, as another report of the same case2 shows, referred to a previous verbal promise as having been made to the husband; so that it would seem the case did not necessarily present the point which was determined, and that the decree should rather have been the other way, the verbal promise to the husband being ratified and perfected by the subsequent written acknowledgment to the daughter. But there can hardly be a doubt of the accuracy of the principle indicated by his Lordship, as applied in a court of equity, and it is difficult to see why it should not equally prevail in an action at law.
§ 218. It is said by an eminent writer, that a promise by letter (or in writing generally) will be specifically enforced, although the person making it afterward dissent from the marriage and declare he will give the parties nothing.3 Such a rule broadly stated, seems to be not altogether reasonable, there being nothing in the language of the statute, nor in the nature of such contracts themselves, to prevent them from being revocable at any time before they have been acted on. In the case cited by the writer in question, Wanchford v. Fotherley, the treaty for the settlement, upon the basis of a letter of the lady's father, depended long, and meanwhile the young couple married. The father, before they went to church, revoked his promise, and said he would give them nothing; but this the Lord Keeper Somers said he looked upon as nothing "after the young people's affections were engaged;" regarding such a tardy revocation, apparently, in the light of a fraud upon those who, reposing upon the promise, had permitted their relations to each other to suffer an entire and irrevocable change.1
1 Ayliffe v. Tracy, 2 P. Wms. 65.
2 In 9 Mod. 3. See Atherley on Marriage Settlements, 82.
3 Atherley, Marr. Sett. 84.
§ 219. It is hardly necessary, nor, if it were necessary, would it be altogether practicable, to show with much precision what will in point of substance be deemed to amount to contracts to bestow a portion in consideration of marriage; the ordinary rules of interpretation of contracts applying to them as to any others. The promise must of course be absolute in its terms, in order to be binding; even though it be reduced to writing. This is illustrated in the case of Randall v. Morgan, where the lady's father, in a letter to the intended husband, says: "The addition of £1,000 3 per cent stock is not sufficient to induce me to enter into a deed of settlement. Whether Mary [the daughter] remains single or marries, I shall allow her the interest of £2,000 at four percent; if the latter, 1 may bind myself to do it, and to pay the principal at her decease to her and her heirs." Sir William Grant, Master of the Rolls, said there were passages in the letter which, if they were detached from it, and could be considered by themselves, would amount to an agreement; but that there was no agreement whatever upon the whole letter taken together; that it was clear that the father meant to reserve it entirely in his own power to bind himself or not after the marriage had taken place, and that the expressions used showed clearly that he did not intend to bind himself then.l
1 Wanchford v. Fotherley, Freem. Ch. 201. The Reporter adds in a note that this decree was affirmed on appeal in the House of Lords. In D'Aguilar v. Drinkwater, 2 Ves. & B. 234, the question was whether a marriage had taken place with consent of trustees. Sir William Grant's language illustrates the position of the court in the case just cited. He says that after a mutual attachment had been suffered to grow up under the sanction of the trustees, it would be somewhat late to state terms and conditions on which a marriage between the parties should take place, as they must either have done violence to their affections, or have submitted to any terms however arbitrary and unreasonable, that the trustees might choose to dictate.
§ 220. It seems to have been considered in an early case, that satisfaction with the proposed marriage on the part of the person promising to give the portion, was in some degree essential to such contracts. An uncle, by a letter to his niece, promised her £1,000 as a portion, but dissuaded her from the match; and, though he was afterwards present at the ceremony and gave her away, the court refused to decree the payment, but left the husband to his action at law.2 The soundness of such a doctrine is doubted by Mr. Atherley,3 and perhaps, as the report does not show the grounds of the decision, the case may be regarded as not determining it. Where the promise is made upon condition that the particular marriage in question should not take place, very clearly no relief either at law or in equity could be had upon it on consideration of the marriage. In Montgomery v. Reilly, finally decided in the House of Lords, there was a letter by the father, upon which the husband and wife relied, and in which he says, "I can never be reconciled to the marriage," etc.; then he proceeds to speak of the arrangement between himself and the family, stating what he intended to give to each of his children, and says: "This, I think, is an abstract of the agreement, and when put into the form of a deed, if assented to by them, I am ready to execute at any time," but adds, "1 will not entangle myself with Mr. J. R." [the husband]. "If this match goes on, I will neither meddle nor make with [make nor meddle with] it or their settlements." Lord Eldon advised their Lordships that there would be a difficulty not easy to be overcome in enforcing the alleged settlement, if the question had to be determined alone upon the letter, considering what the law of the land required to give effect to a marriage agreement. But in view of the other circumstances in the case, he advised them that the agreement was one which in equity ought to be enforced.1