Sec 90

A contract for the future separation of husband and wife, being against the policy of the law, is invalid.5 It is otherwise as to agreements for immediate separation, which, when there is sufficient consideration, and when the provisions are fair and equitable, will, according to the opinion now prevalent, be sustained.6 And a husband will be enjoined from molesting his wife in contravention of provisions of articles of separation ;7 and may be enjoined from suing for restitution of conjugal rights, in violation of a deed of separation.8

Sec 91

In both law and equity, agreements between husband and wife are void, so far as concerns the marital estate, they being in this respect regarded as one person.9 But a contract between husband and wife with regard to the wife's separate property is valid, even as regards subsequent purchasers without notice.1 And in all matters relating to present separation, such contracts, as has been seen, may be valid. But in England contracts as to property between husband and wife should be through the intervention of a trustee.2-A voluntary settlement by a husband on his wife is not invalid when not interfering with the rights of creditors; and the common law rule requiring the intervention of a trustee no longer holds in this country.3 It is otherwise when the rights of creditors intervene.4 The burden is on the wife, when setting up a conveyance from the husband as against creditors, to show the fairness of the transaction.1 Gross inadequacy of consideration in such cases is an index of fraud.2 A projected marriage, it should be added, is a sufficient consideration, and a settlement based on such a consideration holds unless there be a conspiracy between the parties to cheat creditors.3-Post-nuptial settlements between husband and wife, when founded on a sufficient consideration, will be sustained in equity between themselves when executed in whole or in part.4 But, even under the enabling statutes, settlements by a wife on her husband will be closely scrutinized, and unless they were her voluntary act, and not unduly Contracts for future separation invalid.

Agreements between husband and wife void.

1 Knight v. Thayer, 125 Mass. 25.

2 Lush m re, L. R. 4 Ch. Ap. 591; Vaughan v. Vanderstegen, 2 Drew. 363.

3 See Patterson v. Lawrence and other cases cited supra.

4 Bigelow, ut supra, 513.

5 Infra, sec 395 ; Westmeath v. West-meath, 1 Dow. & C. 519 ; Bispham's Eq. sec 115, citing Stapilton v. Stapilton, 2 Lead. Cas. Eq. 855.

6 Infra, sec 395 ; Wilson v. Wilson, 1 H. L. Cas. 538 ; 5 H. L. Cas. 40 ; Gibbs v. Harding, L. R. 5 Ch. 336 ; Charles-worth v. Holt, L. R. 9 Ex. 38 ; Fox v. Davis, 113 Mass. 255 ; Beech v. Beech, 2 Hill, 260 ; Griffin v. Banks, 37 N. Y. 623; Hitner's Appeal, 54 Penn. St. 117 ; Thomas v. Brown, 10 Oh. St. 250 ; Switzer v. Switzer, 26 Grat. 574; Dut-ton v. Dutton, 30 Ind. 455. But for cases in which specific performance of separation agreements has been refused, see Rogers v. Rogers, 4 Paige, 518 ; Champlin v. Champlin, 1 Hoff. Ch. 55 ; Simpson v. Simpson, 4 Dana, 140; McCrocklin v. McCrocklin, 2 B. Mon. 370 ; Carter v. Carter, 14 Sm. & M. 59 ; Collins v. Collins, Phill. Eq. 153 ; Hill on Trustees, 669 (4th Am. ed.), cited Bispham's Eq. sec 115.

7 Saunders v. Rodway, 16 Beav. 207.

8 Wilson v. Wilson, 1 H. L. C. 538 ; Williams v. Bailey, L. R. 2 Eq. 731 ; Leake, 2d ed. 567.

9 So by statute in Alabama, Haynie v. Miller, 61 Ala. 62. Aliter in Illinois, Hamilton v. Hamilton, 89 111. 349. That a note by a husband to his wife to induce her to return to him is void, see Copeland v. Boaz, 9 Baxt. 223 ; contra, Phillips v. Meyers, 82 111. 67.

1 Teasdale v. Braithwaite, L. R. 4 Ch. D. 85; Kelly v. Case, 18 Hun, 472. See Hall v. Hall, 52 Tex. 294, where it was held that a note executed by husband to wife for the separate moneys of the wife lent to the husband is valid.

2 Gibbs v. Harding, L. R. 5 Ch. 336.

3 Jones v. Clifton, 101 U. S. 225; Linker v. Linker, 32 N. J. Eq. 174; Fowler v. Butterly, 78 N. Y. 68; Majors v. Everton, 89 111. 56; Horder v. Horder, 23 Kan. 391; Helmetag v. Frank, 61 Ala. 67 ; Myers v. James, 2 Lea, 159; see Cahill v. Marten, 7 L. R. Ir. 361; infra, sec 376, 497.

In Sanders v. Miller, Court of App. Ky. 1881, the evidence was that the parties to an intended marriage entered in Feb. 1878 into the following agreement: An article of agreement entered into between J. B. Sanders of the first part and Orra A. Davis of the second part. The said J. B. Sanders agrees to give Orra A. Davis (provided she marries him) as good a house, to have and to hold forever, as her sister, Helen M. Stout, had, or a sum of money equivalent to the same, five thousand dollars ; -and were shortly married. Sanders sold his land in July, 1878, having obtained his wife's relinquishment of her contingent right of dower by executing and delivering to her a paper reciting the substance and purpose of the antenuptial contract, and agreeing to pay to her $5000 as soon as he should collect " the money" for the sale.

Hargis, J., in delivering the opinion of the court (the issue being the validity of this settlement), said: "While contracts made between husband and wife as a general rule are void, still, if a husband voluntarily enter into a contract to make, or he does make, a settlement upon his wife in discharge of an obligation arising out of the reception of her property, under an agreement made before its receipt or reduction to possession, such as the chancellor would on her application make upon her, neither the contract nor the settlement would be regarded as fraudulent against creditors. And with much greater reason it can be said that such a contract is possessed of vital force when preceded by a bona fide ante-nuptial contract, and supported by a valuable consideration (relinquishment of dower), moving from her to him at the instant of its execution. Latimer v. Glenn, 2 Bush, 535 ; Campbell v. Campbell's Trustee, MS. Op. 1881 ; Miller v. Edwards, 7 Bush, 397; Lyne v. Bank, 5 J. J. Marsh. 550."

4 Infra, sec 376 ; Clark v. Rosencrans, 31 N. J. Eq. 665.

1 Wilson v. Silkman, cited supra, sec 79.

In Fisher v. Shelver, Sup. Ct. of Wis. Nov. 1881, the question is thus discussed by Orton, J. :influenced by him, will be set aside.1-The statutes enabling married women to hold separate estates, while they permit married women to receive gifts from their husbands, impart to such gifts no quality that would make them good against creditors when without consideration. The burden is in such cases on the wife to show consideration.2 Nor does the fact that a judgment is entered to secure an alleged debt from husband to wife make the case any stronger for the wife.3

"It is said by Mr. Justice Taylor, in Horton v. Dewey: 'This court has repeatedly held, in a contest between the creditors of a husband and the wife, if the wife claims ownership of the property by a purchase, the burden of the proof is upon her to prove, by clear and satisfactory evidence, such purchase, and that the purchase was for a valuable consideration paid by her out of her separate estate, or some other person for her;' citing Stanton c. Kirsch, 6 Wis. 338; Hor-neffer v. Duress, 13 lb. 603; Weymouth v. R. Co., 17 lb. 550 ; Duress v. Horneffer, 15 lb. 195 ; Beard V. Dedolph, 29 lb. 136; Stimson v. White, 20 lb. 562; Elliott v. Bently, 17 lb. 591 : Putnam v. Bicknell, 18 lb. 333; Han-nan v. Oxley, 23 lb. 519 ; Fenelon v. Hogoboom, 31 lb. 172; Hoxie v. Price, lb. 82 ; Carpenter v. Tatro, 36 lb. 297. And it is further said in that opinion : 'In all such cases the burden of proof showing the bona fides of the purchase is upon her, and she must show by clear and satisfactory evidence that the purchase was made in good faith, with her separate estate, or for a consideration moving from some person other than her husband.....

The evidence in this case certainly does not fulfil the requirements of the above rules, but, perhaps, the preponderance of the evidence against the verdict is not so clear as to justify the court in reversing the judgment solely on that ground.....Considering the weakness of the plaintiff's case, on the evidence, we cannot but think that several of the instructions of the court bore much too strongly in her favor, and tended to supply a want of testimony, and, in application to the facts of the case, were erroneous in law, and were calculated to mislead, and probably did mislead, the jury to the prejudice of the appellant."

2 Infra, sec 518. 3 Infra, sec 537.

4 Kesner v. U. S., 98 U. S. 50 ; Grain v. Shipman, 45 Conn. 572; Crooks v. Crooks, 34 N. J. Eq. 610; Bedell's App., 87 Penn. St. 570 ; Fargo v. Good-speed, 87 111. 290; Darnly v. Darnly, 14 Bush, 485.