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.
§ 215. This section of the statute has been most frequently applied to what are commonly known as marriage settlements; and it is settled that any promise, made since the enactment of the statute, to give a portion to or settle property upon, either of the parties to an intended marriage, as an inducement to and consideration for entering into it, is incapable of supporting an action at law for damages for non-performance, or a suit in equity for specific execution, unless there be a memorandum thereof in writing signed by the party to be charged upon the promise.1
§ 215 a. It appears to have been once considered that the statute applied only to these cases of marriage settlements properly so called,2 but it is now settled, at least by American authority, that it is not so limited, but extends to any agreement to undertake any duty or office in consideration of another's contracting a marriage, whether with the promisor or with a third person.3 The sole exception found to this general rule is that mutual promises to marry are not covered by the statute.1
1 Harrison v. Cage, 1 Ld. Raym. 386; Salkeld 24; 5 Mod. 411; Cork p. Baker, Stra. 34; Clark v. Pendleton, 20 Conn. 495; Dunn v. Tharp, 4 Ired. (N. C.) Eq. 7; Wilbur v. Johnson, 58 Mo. 600. In South Carolina, where the English statute has been literally re-enacted, it has been said in chancery (Hatcher v. Robertson, 4 Strob. Eq. 179) that an antenuptial agreement founded on the consideration of marriage, though resting on parol merely, would be enforced, provided it was satisfactorily established by proof; but the case did not require the remark, and would seem to have been incorrectly reported.
2 Harrison v. Cage, 1 Ld. Raym. 386.
3 Brenner v Brenner, 48 Ind. 262; Henry v. Henry, 27 Ohio St. 121; In re Willonghby, 11 Paige (N Y.) Ch. 257; Dygert v. Remerschnider, 32 N. Y. 629; Brown v. Conger, 8 Hun (N. Y.) 625; and see Jorden v.
§ 215 b. The distinction should be carefully noted between agreements in consideration of marriage, and agreements, which are merely in expectation or contemplation of marriage. In order that the contract shall be within the statute, marriage or the promise of marriage must have been its consideration or inducement. In a case where an intestate, about seven years before his marriage, borrowed money from the person who afterward became his wife, and in an interview with her shortly before their marriage, promised her that if she would not enforce payment of the notes, they should remain good and collectible against his estate, and she retained the notes during the coverture and after his death, it was held that, although the promise of the husband was made in contemplation of marriage, it was made in consideration of forbearance to collect the notes, and that after his death a claim for their amount by his wife was properly allowed against his estate, and that his agreement was not within the Statute of Frauds, and could be proved without writing.2
§ 216. The marriage is the consideration, a legal and sufficient consideration, for the defendant's promise, and one which, it is said, courts regard with especial favor, as of a most meritorious character.1 In a case in Maryland, where it was held that an agreement made by a father with his daughter, in consideration of her marriage, by way of advancement, and as a marriage endowment, and followed by her marriage as then contemplated, could not be revoked by the father, Martin, J., delivering the judgment of the Court of Appeals, said that the daughter was regarded as a purchaser, as much so as if she had paid for the property an adequate pecuniary consideration, and that the consummation of the marriage was to be considered as the payment of the purchase-money.2
Money 5 H. L., C. 207, per Cranworth, L. C; Adams v. Adams, 17 Oregon 247; Chase v. Fitz, 132 Mass. 359. In Mallory v. Mallory, 92 Ky. 316, an antenuptial contract stipulating that neither party should have any interest in the property of the other by reason of the marriage, was covered by the Statute of Frauds. The court say, "An antenuptial contract is one by which the parties agree to anticipate the general law controlling the marital relations, and make a law in that regard to suit themselves, the consideration of the contract being the agreement to marry each other." And see White v. Bigelow, 154 Mass. 593.
1 It was held otherwise shortly after the enactment of the statute. Philpot v. Walcot, Skinner 24; Freeman 541; 3 Lev. 65. But the rule was reversed in the later English cases, cited in the note to the preceding section. See also Short v. Stotts, 58 Ind. 29; Ullman v Meyer, 10 Fed. Rep. 241. That all promises in consideration of marriage are required to be in writing, if by their terms not to be performed within one year, see § 272, post.
2 Riley v. Riley, 25 Conn. 154. And see Child v. Pearl, 43 Vt. 224; Rainbolt v. East, 56 Ind. 538.
§ 216 a. The marriage is also an acceptance of the promise. In a case in the Irish Chancery, a promise was made to give a marriage portion to a young lady, and upon its being communicated by letter from the promisor's agent to the intended husband, he expressed his desire to have the promisor's bond to the same effect, but it was not given, and nothing further took place until the celebration of the marriage. It was urged that the promise had not been accepted, but Lord Chancellor Sugden said that "no acceptance could be more solemn than the fact of marrying the lady."3 Where marriage follows upon the agreement, a distinct and positive dissent from the proposition of settlement would be required to be shown, in order to avert a decree of specific execution according to its terms.4
§ 217. The marriage must, however, have been celebrated upon the strength of the promise as any other consideration must be connected with the engagement it is to support. In
1 See the remark of Lord Chancellor Sugrlen, in Greene v. Cramer, 2 Con. & L. 54; 8. c. nom Saunders v. Cramer, 3 Dru & W. 87; also Dugan v. Gittings, 3 Gill (Md.) 138.