1840.-England v. Downs.

proved that in August he was "the intended husband:" Held, that the evidence was insufficient to impeach the deed.

Assignment of all and every the household goods, &c., the particulars whereof were stated to be more fully set forth in an inventory signed by the grantor, and annexed thereto. There was no such inventory: Held, nevertheless, that the assignment was effectual, it appearing from the answer of the party resisting its validity, that the particulars could be ascertained.

THE question in this cause was, whether a settlement made by Mrs. Joan Mason, since deceased, shortly before her marriage with the defendant Mr. Broad, without his concurrence, was or not a fraud on his marital rights.

William Mason, by his will, gave all his real and personal estate to his widow Joan Mason. The testator died in 1816, leaving his widow and three daughters, one of whom was plaintiff in this suit, surviving him. The widow proved the will, entered into possession, and continued to carry on the testator's business of victualler.

By indentures of the 5th of August, 1818, in consideration of na[*523] tural love and affection, Mrs. Joan *Mason conveyed her freehold and leasehold property to trustees, upon trust as to part near the Magdalen Chapel, Bristol, for such uses as she, whether covert or sole should appoint; and in default for her separate use for life, with remainder to her heirs ; and as to the other part of the property for her separate use for life, with remainder to her three daughters and their children. She also assigned to trustees, "all and every the household goods, furniture, plate, linen, china, books, stock in trade, brewing utensils, and all other the effects of her Joan Mason," the particulars whereof were stated" to be more fully set forth and expressed in an inventory thereof signed by the said Joan Mason, and thereunto annexed," upon trust for herself for her separate use for life, and after her death, to sell the household goods, &c., and thereout to pay off a mortgage on part of the freehold property situate in Bath Street, and to divide the surplus between her three daughters.

There was in fact no inventory of the household goods, &c., signed by Mrs. Joan Mason, or annexed to the deed. The execution of the deed was not accompanied or followed by any change or alteration in the apparent ownership or possession of the property comprised in it; and until her second marriage, which afterwards took place, Mrs. Mason acted as owner of the property in the same manner as she had previously done.

On the 26th of October, 1818, Mrs. Joan Mason married the defendant Mr. Broad, who entered into the receipt of the rents of the freehold and leasehold property comprised in the settlement, and took possession of, and apparently

dealt with the personal chattels as his own; he thenceforward car[*524] ried on the business in "his own name until August, 1832, when he sold the business, stock, and effects for 8717., and applied 150l. part thereof in satisfaction of trade debts, and paid 2007. in discharge of the mortgage of the Bath street property, upon which the title deeds of that property were delivered over to Mr. Broad.

Mrs. Joan Broad died in 1833, and this bill was filed in 1836, by one of

1840.-England v. Downs.

the three daughters by her former marriage, against Mr. Broad and the trustees, for the purpose of having the trusts of the deed of the 5th of August, 1818, carried into execution for their benefit.

It appeared from the statements in the answer, that in 1829, Mrs. Broad, without her husband's consent, mortgaged, a part of the freehold property, over which under the settlement she had a power of appointment, for 1607., of which 1501. being the balance after payment of costs, was given to the plaintiff by Mrs. Broad, her mother; it also appeared that in the year 1831, Mrs. Broad sold the same piece of land for 3647., or thereabouts, and thereout paid the mortgage for 1601. and interest, and applied the remainder to her own private purposes, and principally in making presents to the plaintiff and her children. The defendant Mr. Broad, however, said that he had been made a party to the conveyance, but that he had never executed it, and that it had not been tendered to him.

Mr. Broad, by his answer, insisted that the settlement had been made pending the time he was paying his addresses to Mrs. Mason, and wholly without his concurrence or knowledge; that Mrs. Mason was the ostensible owner of the property on her marriage, and that the settlement was a fraud on his marital rights.

*The execution of the settlement was proved by Mr. Davies, a so- [*525] licitor, who, in cross-examination, amongst other things stated, that Mrs. Joan Mason having about the middle of 1818, stated that she was about to be married, he had advised a settlement to be made, and that it was his strong belief that in the course of the preparation of the settlement, he advised the joining therein of her intended husband, for the purpose of barring him; that "he did not think the settlement had been prepared or executed with the privity or assent of her then intended husband, and that its existence was not, to his knowledge, communicated to him before the marriage. That in his communications with John Broad, she desired that the said deed should be prepared and executed without the privity of her then intended husband." No evidence was read by the defendants at the hearing, to show who was the person described by this witness as "her then intended husband."

Mr. C. P. Cooper and Mr. Dixon (in the absence of Mr. Pemberton) for the plaintiff, assumed that at the time of the execution of the settlement, Mr. Broad was paying his addresses to the settlor, but they argued that there was no proof of misrepresentation or concealment up to the time of the marriage, and that concealment alone was not sufficient to invalidate the deed. That it did not appear that the marriage took place on the faith of Mrs. Joan Mason being the absolute owner of this property; nor did it appear that the husband had made any inquiries respecting it, and that therefore, there could be no disappointment on his part. That the husband must have had notice of the settlement before or soon after the marriage, and had *ac- [*526] quiesced in it by paying off the mortgage, and permitting his wife to

sell a portion of the property. That the onus of proof lies on the defendant,

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who had failed in making out any case, and had himself taken no proceedings to set aside the settlement. They cited St. George v. Wake,(a) and the cases there referred to.

Mr. Kindersley and Mr. James Russell, for Mr. Broad, read no part of their evidence showing that Mr. Broad was the person with whom Mrs. Joan Mason.contemplated marriage at the date of the settlement; but they argued, that the circumstances of the case showed clearly that a fraud was intended that the deed was voluntary, and, by her express desire, had been prepared without the privity of her intended husband, while she remained the ostensible owner to the day of her marriage. They also argued that Broad, after the marriage, had dealt with the property as his own; and that, as to the leasehold furniture, &c., the deed was void for want of a schedule or inventory defining what was intended to pass; Weeks v. Maillardet.(b)

Mr. Tinney and Mr. Simons for trustees; Mr. Spurrier and Mr. Elderton for the other claimants; and Mr. J. Taylor for the plaintiff's hnsband.

Mr. Pemberton, in reply, insisted that there was no evidence of any marriage being in contemplation between Mrs. Mason and Mr. Broad at the time of the settlement, or even that they were acquainted; that it must be assumed, that marriage in general, was in her contemplation, and not a marriage

with this particular person; and that the case was like that of Lady [*527] Strathmore v. Bowes,(c) where a settlement was made by "Lady

Strathmore with the concurrence of Mr. Grey, the then intended husband, and a few days after the execution she determined to marry Mr. Bowes; the marriage took place the following day, and the settlement was held valid against Mr. Bowes, for a marriage with him was not then in contemplation. That the rule could not apply to real estate, the inheritance of which a husband would not take by marriage, and as to which he would only become tenant by the courtesy; he drew a distinction between courtship and engagement in cases of this description, contending that though a concealed settlement might be invalid pending an engagement, yet the same result did not follow if made pending courtship.

June 8.-THE MASTER OF THE ROLLS:-The bill in this cause prays that a settlement, which was made for the benefit of the plaintiff and her two sisters, the defendants Jane Barton and Eliza Davis, by their late mother, Joan Mason, who became the wife of John Thiery Broad, may be carried into execution.

Joan Mason was a widow with three children, and, under the will of her first husband, she was entitled to some freehold and leasehold property, to some furniture, and to the stock in trade, with which she carried on business as a victualler.

(a) 1 Myl. & K. 610.

(b) 14 East, 568.

(c) 1 Ves. jun. 22, and 6 B. P. C. 427.

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Contemplating a second marriage, she considered that she ought to make a provision for her children by the first, and being informed that a will which she had made, would upon her marriage become ineffectual, she made a settlement and thereby provided that a portion of her freehold property should be subjected to "her own power of appointment, but that sub- [*528] ject to such power of appointment, that part of her estate over which

the power extended, together with all the rest of her property, should be limited to her own separate use for her life, with remainder for her three daughters in the manner therein mentioned.

In the execution of this settlement, so far as it made provision for her children, she was performing a moral duty: in the circumstances in which she was placed it was clearly her duty, before she placed herself and her property in the power of her second husband, to secure a provision for her children by her first husband, from whom her property was derived; but in performing a duty towards her children, she had no right to act fraudulently towards her second husband.

If a woman, entitled to property, enters into a treaty for marriage, and during the treaty represents to her intended husband that she is so entitled, that upon the marriage, he will become entitled jure mariti, and if, during the same treaty she clandestinely conveys away the property, in such manner as to defeat his marital right, and secure to herself the separate use of it, and the concealment continues till the marriage takes place, there can be no doubt but that a fraud is thus practised on the husband, and he is entitled to relief.

The equity which arises in cases of this nature depends upon the peculiar circumstances of each case, as bearing upon the question, whether the facts proved do or do not amount to sufficient evidence of fraud practised on the husband. It is not doubted that proof of direct misrepresentations, or of wilful concealment with intent to deceive the husband, would entitle him to relief; but it is said that mere concealment is not, in *such a case, any evi- [*529] dence of fraud, and that if a man without making any inquiry as to

a woman's affairs and property, thinks fit to marry her, he must take her and her property as he finds them, and has no right to complain, if, in the absence of any care on his part, she has taken care of herself and her children without his knowledge.

This proposition, however, cannot be admitted as stated; and clearly a woman, in such circumstances, can only reconcile all her moral duties by making a proper settlement on herself and her children, with the knowledge of her intended husband.

If both the property and the mode of its conveyance, pending the marriage. treaty, were concealed from the intended husband, as was the case in Goddard v. Snow, there is still a fraud practised on the husband. The non-acquisition of property, of which he had no notice, is no disappointment, but still his legal right to property actually existing is defeated, and the vesting and continuance of a separate power in his wife over property which ought

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to have been his, and which is, without his consent, made independent of his control, is a surprise upon him, and might, if previously known, have induced him to abstain from the marriage.

Nevertheless, cases have occurred in which concealment, or rather the nonexistence of communication to the husband, has not been held fraudulent, and whether fraud is made out must depend on the circumstances of each case, as an unmarried woman has a right to dispose of her property as she pleases, and as a conveyance made immediately before her marriage is prima facie good, it is to be impeached only by the proof of fraud. [*530] *In the present case the plaintiff alleges that no fraud is proved, and that any circumstances which tend to create doubt, ought to have no weight, in a case where no regular proceeding has been adopted to set aside the settlement.

The defendant Broad insists that fraud is proved; that during the treaty, and at the time of the marriage, Mrs. Mason was in the receipt of the rents of the freehold and leasehold property, and in the possession as apparent owner of the personal chattels; that the settlement was entirely concealed from him till after the marriage, and that he never acquiesced in it.

The settlement was executed on the 5th of August, 1818: the marriage did not take place till the 14th of October, 1818, being more than two months afterwards.

The settlement being proved by William Davies, the defendant Broad has cross-examined that witness, to prove that when it was prepared, a fraud upon him was intended; and Davies says that Mrs. Mason told him she was about to be married, and instructed him to prepare the settlement; he does not think it was prepared or executed with the privity or assent of her then intended husband; its existence was not, to the witness' knowledge, communicated to him (the then intended husband) before the marriage; and that in his communications with Mrs. Broad, she desired that the deed should be prepared and executed without the privity of her then intended husband. It was observed upon this evidence, that the defendant, John Thiery Broad, is not stated by the witness to have been the then intended husband. The observation is true, and is the more remarkable, upon its appearing that in

one of the interrogatories upon which this evidence is given, the [*531] *witness was distinctly asked, "Whether the settlement was prepared

or executed with the knowledge, privity, or assent of the defendant John Thiery Broad; was its existence communicated to him before the marriage?" The answer, without naming Broad, or speaking of the knowledge which the intended husband might have, is, that the witness "did not think the deed was prepared with the privity or assent of her then intended husband."

However probable it may be that John Thiery Broad was then the intended husband of Mrs. Mason-and in the opening of this case the fact was assumed to be so-the observation cannot be otherwise than material. In Lady