HELMS v. FRANCISCUS.—2 BLAM). 549

natural justice; it resembles the paternal care winch a Court of
Chancery exercises for the benefit of orphans; and assuming the
place of a parent, the Court requires a settlement upon the wife,
upon the presumption that it demands no more than would have
been insisted on by a prudent father. But the Court uses no active
means of enforcing- such a settlement; it only proposes to him who
asks equity, that he should do equity; and therefore, the husband
cannot be obliged to make a settlement upon his wife. If he does
not require the possession of his wife's fortune, he must be allowed
to receive the interest of it so long as he maintains her; and to
have the chance of taking the whole by survivorship. The wife's
equity is, in general, a provision made for her children of the mar-
riage, to take effect after the death of the husband: but if the
husband be insolvent, then the maintenance provided for her, is
always a present owe, and made to commence immediately; be-
cause the husband being under an obligation to maintain his
wife, and his doing so, being the condition upon which the law
gives him her property; therefore, his incapacity to maintain her,
owing to his insolvent condition, gives her an equitable right to
claim an immediate provision for her own support. And where
the incapacity of the husband to maintain his wife, arises from
bankruptcy or legal insolvency, the Court fastens that obligation
upon the property itself. Aquilar v. Aquilar, 5 Mad. 414. This
settlement is commonly made under the direct authority of the
Court; but that is not indispensably necessary; for if it be
voluntarily made under circumstances in which it would have
been ordered by the Court it will be sustained. And all such
* settlements are deemed valid even against the creditors 577
of the husband. Moore; v. Rycault, Prec. Cha. 22; Nicholas
v. Nicholas, Prec. Cha. 546; Brown v. Elton, 3 P. Will. 202; Sleech
v. Thorington, 2 Ves. 561; Jewson v. Moulson, 2 Atk. 419; Middle-
come v. Marlow, 2 Atk. 520; Bond v. Simmom, 3 Atk. 20; Salisbury
v. Newton, 1 Eden, 370; Pryor v. Hill, 4 Bro. C. C. 139; Burdon v.
Dean, 2 Ves. Jim. 607; Langham v. Nenny, 3 Ves. 469; Macawlay
v. Philips, 4 Ves. 15; Franco v. Franco, 4 Yen. 528; Blount v. Best-
land, 5 Ves. 514; Elibank v. Montolieu. 5 Ves. 737; Glaister v.
Hewer, 8 Ves. 206; Murray v. Elibank, 10 Ves. 84; Elworthy v.
Wickstead, I Jac. & Walk. 69; Elliott v. Cordell, 5 Mad. 150;
Beams' Orders, 464; Decks v. Strutt, 5 T. R. 690.

Here the wife claims the whole of this residuary legacy, to be
settled upon her to her own exclusive use. There can be no doubt
that she must have a provision made for her to take effect imme-
diately; and that upon the two last mentioned grounds of equity.
First, because it is admitted that this legacy was given to her; aad
it appears that her husband has treated her ill, has taken up his
residence in another State, and has left her entirely destitute of
any aid from him. And secondly, even supposing no separation