1 Randall v. Morgan, 12 Ves. 67.

2 Douglas v. Vincent, 2 Vern. 202. But compare Wanchford v. Foth-erley, Freem. Ch. 201. 3 Marr. Sett. 84.

§ 221. In a case in Virginia, the question arose as to the time for performance of a contract for a marriage settlement, which was in that respect indefinite. The promise was, that if the plaintiff married the defendant's daughter, the defendant would endeavor to do her equal justice with the rest of his daughters, as fast as it was in his power with convenience; and it was held that he had not his lifetime to perform the promise in, but, in a reasonable time after the marriage (taking into consideration his property and other circumstances), was bound to make an advancement to the plaintiff and his wife equal to the largest made to any of his daughters.2

§ 222. In what form the written contract which shall satisfy the statute is to be, as, for instance, whether a letter or other informal writing is sufficient, and when such writing is to be deemed properly executed, as also the general rule as to what should be contained in the writing, and to what extent parol evidence may be admitted to explain or assist it, are matters which can probably be discussed to more advantage when we come to the consideration of the memorandum in writing which the fourth section of the statute requires to be produced in all cases of contracts falling within its provisions.3 And in like manner, and for the sake of obtaining a more systematic view of the subject, it is proposed to defer to the same time all questions as to the effect which any acts of part-performance, or other equitable considerations, may have with courts of equity, in inducing them to direct specific execution of a verbal contract made upon consideration of marriage, notwithstanding the absence of the writing required by the statute.4 There will remain, therefore, only the Question how far a writing or settlement made after marriage, upon the basis of an antenuptial verbal promise, will be binding and valid; and the discussion of it will conclude this chapter.

1 Montgomery v. Reilly, 1 Bligh, 364. 2 Chichester v. Vass, 1 Munf. 98. 3 See post, Chapters XVII. and XVIII. 4 See post, Chapter XIX (Verbal Contracts Enforced In Equity).

§ 223. The case of Dundas v. Dutens is commonly cited as having determined that a postnuptial settlement, reciting the antenuptial verbal contract, was good against intervening creditors. Lord Thurlow there strongly expressed his opinion that it was, and dismissed the creditors' bill to set such a settlement aside. It also appears, however, that he regarded the suit as part of a combination between the husband, the creditors, and the solicitor, to defraud the children: a circumstance which certainly takes from the weight of the case as a decision upon the legal question of the validity of the settlement.1 Lord Thurlow's opinion was referred to by Lord Ellenborough with apparent approbation, in the subsequent case of Shaw v. Jakeman,2 but he did not find it necessary to apply it decisively. Afterwards in Randall v. Morgan, Sir William Grant, M. R., also referred to it, but as a dictum only, and said that he was not aware that the point had ever been decided; and at the same time he expressed a strong doubt whether a writing after marriage would set up an antenuptial verbal promise, even as between parties; but it was not necessary to decide, nor did he decide, either question.3 Still later, in the case of Battersbee v. Farrington. Sir Thomas Plumer, M. R., remarked that it would be difficult to maintain that a recital in a settlement after marriage was evidence, as against creditors, of articles made before marriage. "Such a doctrine," he said, "would give to every trader a power of excluding his creditors by a recital in a deed to which they are not parties."4 But even here the point was claims not directly raised, as there were in fact no intervening of creditors in the case, and no decision was made upon it. The tendency, however, of the English Courts appears, from the course of these cases, to be against upholding the validity of a settlement after marriage, although it recite an antenuptial verbal agreement in consideration of marriage, when intermediate creditors are to be cut off by it.1 In our own country there is less uncertainty upon the point. Chancellor Kent, in the case of Reade v. Livingston, reviews all the authorities which favor or appear to favor the validity of such a settlement, and doubts much whether it can be upheld by the mere force of a recital of the antenuptial verbal contract, and he inclines to think that the weight of authority, as well as the reason and policy of the case, is against it. This opinion has been much respected in our courts, and subsequent American decisions in various States have established the doctrine, that as against creditors, such a settlement has no force.2

1 Dundas v. Dutens, 1 Ves. Jr. 196; s. c. 2 Cox, Ch. 235.

2 Shaw v. Jakeman, 4 East 201.

3 Randall v. Morgan, 12 Ves. 67.

4 Battersbee v. Farrington, 1 Swanst. 113.

§ 224. The principle upon which this doctrine is sustained requires to be carefully noticed. In Randall v. Morgan, as has been seen, it was intimated that, even as between parties, a writing made subsequently to the marriage would be of no effect to set up an antenuptial verbal promise of a settlement; and the reason given is, that otherwise the construction of the fourth section of the statute would be just the same as the seventh, which requires only, in the case of a trust of lands, that it be manifested or proved by writing; that upon that clause, it is not necessary that a trust be constituted by writing, but that it is sufficient to show by written evidence the existence of the trust.1 The weight of authority, however, seems decidedly to establish that a settlement or other writing made after marriage and recognizing an antenuptial verbal contract, is binding upon the parties.2 Nor does it appear that any violence is thereby done to the spirit of the fourth section. The memorandum required by that section need not be contemporaneous with the making of the contract; it is only necessary that the evidence of the contract be put in that form, before any action can be maintained upon it.3 Then, it becomes a binding agreement; and it seems to be no reason for holding otherwise in cases of marriage contracts, that the marriage has intervened; for that is, so to speak, but the payment of the consideration. No relief is sought or claim founded upon the contract, until after it is perfected by being put in writing. But when the rights of creditors accruing in the meantime are concerned, the case is different. The writing made after marriage, or the recital of the antenuptial contract in the postnuptial settlement, can have no relation back to the verbal contract so as to make it effective as of that date, if the rights of third parties have meantime intervened;4 and consequently the settlement upon the basis of that verbal contract must be regarded as purely voluntary, and cannot affect pre-existing rights against the property conveyed.1

1 The question may now be considered definitely settled by the case of Warden v. Jones, 2 De G. & J. 76 (affirming the decision of Sir John Romilly, M. EL, reported in 23 Beavan 487), where Lord Cranworth said that the settlement in the case, even if it had contained a statement that it was made in pursuance of a previous parol antenuptial agreement, would be void against creditors. See also Spicer v. Spicer, 24 Beav. 367, and the early cases of Lavender v. Blakstone, 2 Lev. 147, and Sir Ralph Bovy's case, 1 Vent. 193. Both Mr. Atherley (Marr. Sett. 149) and Judge Story (Eq. Jur. § 374) express their assent to the doctrine that such a settlement is invalid.

2 Reade v. Livingston, 3 Johns. (N. Y.) Ch. 481; Winn v. Albert, 2 Md. Ch. Dec. 169, affirmed on appeal, 5 Md. 66; Izard v. Izard, Bailey (S. C.) Eq. 228; Andrews v. Jones, 10 Ala. 400; Blow v. Maynard, and Lawrence v. Blow, 2 Leigh (Va.) 29; Smith v. Greer, 3 Humph. (Tenn.) 118; Wood v. Savage, 2 Doug. (Mich.) 316; Davidson v. Graves, Riley (S. C.) Eq. 219; Borst v. Corey, 16 Barb. (N. Y.) 136; Story Eq. Jur. ed. 1861, § 374. The Court of Chancery in New Jersey, however, have said that where an antenuptial settlement was fairly shown, they would be inclined to give validity to the settlement in pursuance of it, even against creditors; but they did not consider a recital in a postnuptial deed of settlement, nor declarations of a husband made during coverture and shortly before the conveyance by the wife and himself to his son. as satisfactory proof. Satterthwaite v. Emley, 3 Green, Ch. 489, per Haines, C; Carter v. Worthington, 82 Ala. 334.

1 Randall v. Morgan, 12 Ves. 67.

2 Montacute v. Maxwell, 1 P. Wms. 618; Stra. 236; Hammersly v. De Biel, 12 Clark & P. 45; Argenbright v. Campbell, 3 Hen. & M. (Va.) 144.

3 See post, § 348. 4 See supra, § 233.

§ 224 a. In the case of Cooper v. Wormald, one S. C. by her father's will had a life estate in the real and personal estate left by her father, held by trustees, with a remainder to his son, the plaintiff. S. C, being about to marry the defendant, agreed by parol with him to transfer a certain sum, standing in her own name, in the bank, to the same trustees in trust for herself for life, and in default of appointment, for the defendant for life, with remainder to her children. The deed of trust was, by mistake, not executed till after the marriage, though the transfer of the property, which was in the shape of securities, was made before. The bill was brought, after S. C. 's death, against her husband to have him declared trustee of the property in favor of the plaintiff, executor of the father. It alleged that the money was part of the testator's estate, and subject to the trusts of the will. The defendant insisted that the settlement, being made in good faith and for value, should prevail, and this was the view taken by Romilly, M. R., who held that although the trustees might be guilty of and liable for a breach of trust, yet that in respect of the money itself, there were other persons who had become entitled for valuable consideration, and whose rights were not to be set aside.2 He took pains, however, to point out that his decision was not at all intended to question the rule just stated and discussed.

1 A very able discussion of this point will be found in the opinion of the Maryland Court of Appeals, in Albert v. Winn, 5 Md. 66.

2 Cooper v. Wormald, 27 Beav. 266.