WIFE'S EQUITY - By this phrase
is understood the equitable right of a wife to have
settled upon her and her children a suitable provision
out of her estate whenever the husband cannot obtain
it, without the aid of a court of equity.
By the marriage the husband acquires an interest
in the property of his wife in consideration of the
obligation which he contracts by the marriage, of
maintaining her and their children. The common law
enforces this duty thus voluntarily assumed by him,
and he can alien the property to which he is thus
entitled jure mariti, or in case of his bankruptcy
or insolvency it would vest in his assignee for the
benefit of his creditors, and the wife would be left
with her children, entirely destitute, notwithstanding
her fortune may have been great. To remedy this evil,
courts of equity, in certain cases, give a provision
to the wife, which is called the wife's equity.
The principle upon which courts of equity act is,
that he who seeks the aid of equity must do equity,
and that will be withheld until an adequate settlement
has been made.
It will be proper to consider, 1. Out of what property
the wife has a right to claim her equity to a settlement.
2. Against whom she may make such a claim. 3. Her
rights. 4. The rights of her children. 5. When her
rights to a settlement will be barred.
Where the property is equitable and not recoverable
at law, it cannot be obtained without making a settlement
upon a wife and children, if one be required by her
and where, though the property be legal in its nature,
it becomes, from collateral circumstances, the subject
of a suit in equity, the wife's right to a settlement
will attach.
The wife's equity to a settlement is binding not
only upon the husband, but upon his assignee under
the bankrupt or insolvent laws. And even where the
husband assigned the wife's equitable right for a
valuable consideration, the assignee was considered
liable.
As to the amount of the rights of the wife, the general
rule is that one half of the wife's property shall
be settled upon her. But it is in the discretion of
the court to give her, an adequate settlement for
herself and children.
Whenever the wife insists upon her equity, the right
will be exten-ded to her children, but the right is
strictly personal to the wife, and her children cannot
insist upon it after her death.
The wife's equity will be barred, first, by an adequate
settlement having been made upon her when she lives
in adultery apart from her husband but a female ward
of court, married without its consent, will not be
barred, although she should be living in adultery.
