576 HELMS v. FRANCISCUS.

been made, to direct a settlement not upon the wife only, but
upon the children also. (e)

To obtain the benefit of this equity the wife may come in and
make her claim in any suit instituted by her husband; or she may
by her next friend file a bill against him or his legal assignees
in bankruptcy or insolvency; for neither the husband, nor any
person standing in his place can have her fortune, without making
a provision for her. The wife's equity is a mere creature of this
court; and is therefore never allowed, as between citizens of other
states, according to the laws of which the wife is allowed no such
equity.(y) It is a claim founded upon natural justice; it re-
sembles the paternal care which 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 and her children of the marriage,
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 one, and made to commence immediately; because 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 imme-
diate 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, (g) 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

(i) Murray v. Elibank, 13 Ves. 1.—(f) Dues v. Smith, 4 Cond. Chan. Rep.
tit.—(g) Aquilar v. Aquilar, 5 Mad. 414.