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.