Reuben Hyde Walworth to MVB, 27 January 1829
R[euben] Hyde Walworth to MVB, 27 January 1829
Jan. 27th, 1829.
I have examined the bill to allow the wife of Wait Albro, to receive certain legacies: and if the facts are as represented in her petition, there is no legal objection to her receiving a support for herself and her children, out of the legacy and distributive share of the estate of her grandfather, left her by his will.- It was for a long time doubted whether the court of chancery would interfere on a direct application of the wife against the husband, to restrain him from obtaining her separate property without making a suitable provision for her support; although it was the ordinary practice of the court to require such provision, when the husband applied for the aid of chancery to obtain her separate property. At length, in the case of Gardner vs. Walker and wife, (1 Strange 503) Lord Macclesfield decided that the wife’s equity was to be protected, whoever might be the plaintiff in chancery.- This subject is treated of at large in the 2d chap. of the 5th book of Clancy’s rights of women, where all the English cases on the subject are collected. The English cases were reviewed by the court of errors in this state in the case of Udall and Kinney vs. Kinney, (3 Cowen’s Reports, 590) and the right of the wife to a support for herself and children out of her equitable property, in opposition to the claims of the husband, was fully sustained.
The only question which can arise on this bill, is as to the propriety of legislating on the subject, without giving the husband the right to be heard, which he would have if the wife filed her bill in equity. That, however, is a question on which it cannot be necessary that I should express any opinion in this particular case, as I presume there is no doubt as to the facts alledged in the petition on which this law is founded.- But cases might occur in which injustice might be done by settling the right of husband and wife by ex parte legislation.
I am, with great respect, yours, &c.
R HYDE WALWORTH.