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MARRIAGE SETTLEMENTS BY INFANTS.

18 & 19 VICTORIÆ, c. 43.

An Act to enable Infants, with the Approbation of the Court
of Chancery, to make binding Settlements of their Real
and Personal Estate on Marriage (a).

[2nd July, 1855.]
18 & 19 Vict. WHEREAS great inconveniences and disadvantages arise in con-
c. 43, s. 1.
sequence of persons who marry during minority being incapable
of making binding settlements of their property: for remedy
whereof it is enacted, as follows:

Infants may,

with the approbation of the Court of Chancery, make valid settlements or contracts for settlements of their

estate upon marriage.

1. From and after the passing of this act it shall be lawful for every infant upon or in contemplation of his or her marriage, with the sanction of the Court of Chancery, to make a valid and binding settlement or contract for a settlement of all or any part of his or her property, or property over which he or real and personal she has any power of appointment, whether real or personal, and whether in possession, reversion, remainder, or expectancy; and every conveyance, appointment, and assignment of such real or personal estate, or contract to make a conveyance, appointment, or assignment thereof, executed by such infant, with the approbation of the said court, for the purpose of giving effect to such settlement, shall be as valid and effectual as if the person executing the same were of the full age of twenty-one years: provided always, that this enactment shall not extend to powers of which it is expressly declared that they shall not be exercised by an infant.

The words

"Court of Chancery," in the

above act, to include Court of Chancery in Ireland.

Jurisdiction under this act.

The act does not alter the legal

(a) By 23 & 24 Vict. c. 83, in the interpretation of the act 18 & 19 Vict. c. 43, and for all the objects and purposes thereof, the words "the Court of Chancery" shall include and be taken to include the Court of Chancery in Ireland, and all orders made and approbations already given by the Court of Chancery in Ireland in cases provided for and contemplated by the said act shall be as valid and binding in law as if the words "the Court of Chancery in Ireland" had been expressly contained in the said act in all the places where the words "the Court of Chancery" are mentioned therein.

The Court of Chancery has no jurisdiction under this act to approve a settlement of an infant's property originally made without its concurrence (per Stuart, V.-C., Re Fuller's Settlement, 10 Feb. 1860; Morgan's Ch. Acts, 234, 4th ed.); nor to settle the property of an infant, not being a ward of court, who marries after attaining the age at which she is capable of contracting marriage (Re Potter, L. R., 7 Eq. 484); but the court may, under this act, sanction a post-nuptial settlement of the property of a ward of court, which has been made with its approbation. (Powell v. Oakley, 34 Beav. 575; see Re Hoare, 11 W. R. 181.)

This act does not alter the legal status of an infant in respect of the alienation of property. Therefore, where, on the marriage of an infant, she status of an infant in respect of the executed a settlement of her personal property, with the sanction of the alienation of pro- Court of Chancery in England, limiting funds in the Court of Chancery

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in Ireland upon such trusts as the infant, notwithstanding her coverture, should either before or after attaining twenty-one, appoint; the latter court refused to transfer the funds to her appointee under a deed poll executed by her while still under the age of twenty-one. (Re Armit's Trusts, I. R., 5 Eq. 352.)

As to the powers of infants previously to this act to make valid settlements on their marriage, see 3 Davidson, Conv. 728, note (a), 2nd ed.

2. Provided always, that in case any appointment under a power of appointment, or any disentailing assurance, shall have been executed by any infant tenant in tail under the provisions of this act, and such infant shall afterwards die under age, such appointment or disentailing assurance shall thereupon become absolutely void.

18 & 19 Vict.

c. 43, s. 1.

In case infant die
under age, ap-
be void.

pointment, &c. to

the Court of

given upon peti

tion.

3. The sanction of the Court of Chancery to any such settle- The sanction of ment or contract for a settlement may be given, upon petition Chancery to be presented by the infant or his or her guardian in a summary way, without the institution of a suit (b); and if there be no guardian, the court may require a guardian to be appointed or not, as it shall think fit (c); and the court also may, if it shall think fit, require that any persons interested or appearing to be interested in the property should be served with notice of such petition.

(b) A form of petition under this act is given, Dan. Ch. Forms, 1501. A petition is necessary although a suit has been instituted. (Peareth v. Marriott, W. N. 1866, p. 48.)

The ordinary course upon a petition is for the court, after hearing counsel, Practice under to adjourn the petition into chambers. (See Re Olive, 11 W. R. 819.) the act. This proceeding does not make the infant a ward of court, and the court is not therefore called upon to sanction the marriage but only the settlement. (Judge's Regul. by Bloxam, p. 43; see Re Strong, 26 L. J., Ch. 64.) No order is drawn up, but a note signed by the registrar is left at chambers with the petition, and a summons to proceed on the petition is usually issued. Upon the return of this summons, or at an adjourned meeting, evidence is produced in conformity with the regulation. (1 Smith's Ch. Pr. 1149, 7th ed.; Dan. Ch. Pr. 1212.)

Upon applications to obtain the sanction of the court to infants making settlements on marriage under the act of 18 & 19 Vict. c. 43, evidence is to be produced to show -1. The age of the infant; 2. Whether the infant has any parents or guardians; 3. With whom or under whose care the infant is living, and if the infant has no parents or guardians, what near relations the infant has; 4. The rank and position in life of the infant and parents; 5. What the infant's property and fortune consist of; 6. The age, rank and position in life of the person to whom the infant is about to be married; 7. What property, fortune and income such person has; 8. The fitness of the proposed trustees and their consent to act. proposals for the settlement of the property of the infant and of the person to whom such infant is proposed to be married are to be submitted to the judge. (20th Regulation as to business, August 8, 1857; Morgan's Ch. Acts and Orders, Appendix lv. 4th ed.)

The

On a petition by a female infant under this act, praying a reference to approve of a proper settlement, and stating that the intended marriage had the sanction and approbation of the infant's father, the Lord Chancellor made the order without directing any inquiry as to the propriety of the marriage. (Re Dalton, 6 De G., Mac. & G. 201; 2 Jur., N. S. 1077; 25 Law J., Chan. 75.) He considered that the provisions of the act do not impose on the court any other duty than that of looking to the propriety of the settlement, though what in each particular case might be a proper settlement must sometimes lead to an inquiry as to all the circumstances connected

Whether court will inquire into propriety of mar

riage.

18 & 19 Vict. c. 43, s. 3.

The settlement.

Not to apply to males under

with the marriage. (Ib.) It is still undecided, notwithstanding the above case, whether on the petition of an infant under this act, praying a reference to approve of a proper settlement of the infant's property, this statute has relieved the court from inquiring into the propriety of the proposed marriage. But the court will make the reference where there is proper evidence of the propriety of the proposed marriage. (Re Strong, 26 Law J., Ch. 64; 5 W. R. 107.)

The draft of the settlement, when not drawn by one of the conveyancing counsel, will be directed to be taken into chambers to be perused by the chief clerk and approved by the judge. (Re Williams, 8 W. R. 678; 6 Jur., N. S. 1064.) The court refused to sanction the insertion of a clause in a settlement to be made by a female infant on her marriage, providing that no person professing the Roman Catholic religion should take any interest under the settlement. The court, however, sanctioned the insertion of a clause making it compulsory on the successive owners, or their husbands, to assume the name and arms of the ancestor from whom the settlor derived the estates. (Ib.) In a settlement under this act there ought not to be any limitation to collaterals, or any benefit conferred upon the guardian of the minor whose property is put in settlement. (Re M'Clintock, 10 Ir. Ch. R., N. S. 469.) Forms of settlements sanctioned by the court under this act are given in 3 Davidson, Conv. 747, 754, 1062, 2nd ed.

The draft of such settlement is settled at chambers and then engrossed, and an affidavit verifying such engrossment is made and filed, and an office copy produced at chambers. The chief clerk thereupon signs the usual memorandum in the margin of the engrossment, and indorses on the original petition a minute of the order made, and from such minute a formal order is drawn up by the registrar, which is passed and entered in the usual way. The settlement is then executed by the necessary parties, and the marriage takes place. (1 Smith's Ch. Pr. 1149, 1150, 7th ed.)

(c) As to the appointment of guardians, see Dan. Ch. Pr. 1189 et seq. 4. Provided always, that nothing in this act contained shall twenty or females apply to any male infant under the age of twenty years, or to any female infant under the age of seventeen years.

under seventeen

years of age.

MARRIED WOMEN'S PROPERTY.

33 & 34 VICT. C. 93.

c. 93, 8. 1.

An Act to amend the Law relating to the Property of Married 33 & 34 Vict. Women. [9th August, 1870.] WHEREAS it is desirable to amend the law of property and contract with respect to married women:

Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows:

married women

perty.

1. The wages and earnings of any married woman acquired Earnings of or gained by her after the passing of this act in any employ- to be deemed ment, occupation, or trade in which she is engaged or which their own proshe carries on separately from her husband, and also any money or property so acquired by her through the exercise of any literary, artistic, or scientific skill, and all investments of such wages, earnings, money, or property, shall be deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good discharge for such wages, earnings, money, and property (a).

(a) Under the old law a husband might in his own name recover his wife's wages (Dengate v. Gardiner, 4 M. & W. 7), or the profits of a business carried on by her. (Savile v. Sweeny, 4 B. & Ad. 524.) And payment to her of her own earnings was not good, unless she had her husband's authority to receive them. (Öfley v. Clay, 2 M. & Gr. 172.)

As to a married woman's separate trading before this act under her husband's agreement, see 2 Bright's Husband and Wife, 292; and under the custom of the city of London, see 2 Bright, 76.

The question whether a trade is carried on by a married woman separately from her husband, becomes of importance under this section. The question is one of fact, to be determined on the circumstances of the case. (Petty v. Anderson, 3 Bing. 170; Smallpiece v. Dawes, 7 C. & P. 40.) No power is given by this act of making a married woman a bankrupt. As to a married woman's bankruptcy, see Regina v. Robinson, L. R., 1 C. C. 80. By 20 & 21 Vict. c. 85, s. 21, a wife deserted by her husband may apply to a police magistrate or justices in petty sessions for an order to protect any money or property she may acquire by her own lawful industry; and by virtue of the order such earnings and property will belong to her as if she were a feme sole.

As to a married woman's power of disposing of her separate property, see the note to 3 & 4 Will. 4, c. 74, s. 78, ante, p. 378. As to the nature of her separate estate generally, see 1 White & Tudor, L. C., Eq. 488 et seq.; and as to the relation of this act to the doctrine of separate use, see Griffith's Married Women's Property Act, 1870.

2. Notwithstanding any provision to the contrary in the act of the tenth year of George the Fourth, chapter twenty-four, enabling the Commissioners for the Reduction of the National

Deposits in married woman to be deemed her

savings banks by

a

separate property.

33 & 34 Vict. c. 93, s. 2.

Proviso.

As to a married woman's property in the funds.

Debt to grant life annuities and annuities for terms of years, or in the acts relating to savings banks and post office savings banks, any deposit hereafter made and any annuity granted by the said commissioners under any of the said acts in the name of a married woman, or in the name of a woman who may marry after such deposit or grant, shall be deemed to be the separate property of such woman, and the same shall be accounted for and paid to her as if she were an unmarried woman; provided that if any such deposit is made by, or such annuity granted to, a married woman by means of moneys of her husband without his consent, the court may, upon an application under section nine of this act, order such deposit or annuity or any part thereof to be paid to the husband (b).

(b) The principal statutes relating to savings banks and the purchase of government annuities through the medium of savings banks are collected, 4 Chitty's Statutes, 117 et seq. By 26 & 27 Vict. c. 87, s. 31, the trustees and managers of any savings bank were empowered to pay any sum of money in respect of any deposit made by married women, or by women who might marry after such deposit, to any such woman, unless the husband of such woman should give to such trustee or managers notice in writing of his marriage with such woman, and require payment accordingly.

3. Any married woman, or any woman about to be married, may apply to the Governor and Company of the Bank of England, or to the Governor and Company of the Bank of Ireland, by a form to be provided by the governor of each of the said banks and company for that purpose, that any sum forming part of the public stocks and funds, and not being less than twenty pounds, to which the woman so applying is entitled, or which she is about to acquire, may be transferred to or made to stand in the books of the governor and company to whom such application is made in the name or intended name of the woman as a married woman entitled to her separate use, and on such sum being entered in the books of the said governor and company accordingly, the same shall be deemed to be the separate property of such woman, and shall be transferred and the dividends paid as if she were an unmarried woman; provided that if any such investment in the funds is made by a married woman by means of moneys of her husband without his consent, the court may, upon an application under section nine of this act, order such investment and the dividends thereof, or any part thereof, to be transferred and paid to the husband (c).

(c) A fund in court was subject, during the life of a married woman, to the trusts of her settlement (under which she had a general power of appointment over her life interest), and belonged in remainder to her daughter. Upon a petition presented by the mother, the daughter, and the husband of the mother, the court under this section ordered a transfer into her name as a married woman entitled to her separate use. (Re Bartholomew's Estate, 23 L. T., N. S. 433.) A similar order was made where a married woman was entitled absolutely to a fund in court, the husband joining in the petition. (Re Butlin's Trusts, 23 L. T., N. S. 523.)

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