In the case of a fund of personalty given to a married woman with a restraint upon anticipation, a distinction has been drawn between a fund invested so as to produce income, and a gift of a share of proceeds of sale or cash not producing income, the restraint upon anticipation being held effectual in the former case, and ineffectual in the latter. See In re Ellis' Trusts, 17 Eq. 409; In re Croughton's Trusts, 8 Ch. D. 460; In re Benton; Smith v. Smith, 19 Ch. D. 277; In re Clarke's Trusts, 21 Ch. D. 748; In re Taber; Arnold v. Kayess, 46 L. T. 805; 51 L. J. Ch. 721; 30 W. R. 883; In re Coombes; Coombes v. Parfitt, W. N. 1883, 169; see, too, Re Sarel, 4 N. R. 321; 10 Jur. N. S. 876; Re Gaskell's Trusts, 11 Jur. N. S. 780; Re Sykes' Trusts, 2 J. & H. 415. This distinction is now overruled. The true test is, does the testator intend the fund to be paid to the married woman, or does he intend her to enjoy it only in the shape of income. In re Bown; O'Halloran v. King, 27 Ch. D. 411. Chap. XXXVII. Restraint pay. a. Where a fund is given immediately to a legatee with Direction to a direction to pay it to her, the direction to pay overrides a restraint on anticipation. In re Grey's Settlements; Acason v. Greenwood, 34 Ch. D. 85, 712 (as to the 1,500l., which was not, however, before the Court); In re Fearon; Hotchkin v. Mayor, 45 W. R. 232. À fortiori is this the case, if the fund is directed to be paid over after a life interest, as force can then be given to the restraint on anticipation by applying it to the reversionary interest. In re Bown, supra. held by trustees. b. But where a fund is given on trust for a legatee, a Fund to be restraint on anticipation will be effectual; and the fact that the fund is given after a life interest or a period of accumulation, does not of itself show that the restraint on anticipation was meant to cease when the fund fell into possession. In re Grey's Settlements, supra ; In re Tippetts & Newbould's Contract, 37 Ch. D. 444; Re Holmes; Hallows v. Holmes, 67 L. T. 335. A restraint may be effectually confined to a reversionary interest. In re Bown, supra. Where there was a direction to accumulate the income of a Chap. XXXVII. Determines with coverture. What words create a fund and the rents of realty during the life of an annuitant and after her death to stand possessed of the fund and realty with the accumulations in trust for a married woman, whom the testator restrained from anticipation during the annuitant's life, it was held that the restraint was effectual, and the married woman could not stop the accumulations. In re Spencer; Thomas v. Spencer, 30 Ch. D. 183. The restraint upon anticipation attaches only to the separate estate, and therefore determines with coverture. Barton v. Briscoe, Jac. 603; Jones v. Salter, 2 R. & M. 208; Woodmeston v. Walker, 2 R. & M. 197; see In re Wheeler; Briggs v. Ryan, (1899) 2 Ch. 717. If nothing is done with the property in the meantime it revives on future coverture. Tullett v. Armstrong, 1 B. 1; 4 M. & Cr. 390; Scarborough v. Borman, 1 B. 34; 4 M. & Cr. 378; Re Gaffee, 1 Mac. & G. 541; see Hamilton v. Hamilton, (1892) 1 Ch. 396. The restraint may be confined to marriage with a particular husband by name. Morris v. Morris, 4 Dr. 33; Hawkes v. Hubbuck, 11 Eq. 5; see In re Molyneux's Estate, I. R. 6 Eq. 411. A sale or conversion of the property destroys the separate use. Difficulties have sometimes arisen as to what words are restraint upon necessary to create a restraint on anticipation. anticipation. A direction that there is to be no sale or mortgage of the estate devised or the rents arising from it during the life of the devisee, amounts to a restraint on anticipation. Baggett v. Meux, 1 Coll. 138; 1 Ph. 627; Goulder v. Camm, 1 D. F. & J. 146; Steedman v. Poole, 6 Ha. 193; see, however, Re Hutchings to Burt, 59 L. T. 490. The same has been held of a direction that the receipts of the devisee alone, after the payment of the rents devised shall have become due, should be sufficient discharges. Field v. Evans, 15 Sim. 375; Baker v. Bradley, 7 D. M. & G. 597; White v. Herrick, 21 W. R. 454; In re Smith; Chapman v. Wood, 51 L. T. 501. But a direction to pay to the legatee personally, or on her receipt alone, will not restrain anticipation. Re Ross's Trust, 1 Sim. N. S. 196; Wagstaff v. Smith, 9 Ves. 520, 524; Acton v. White, 1 S. & St. 429. When the legatee has a power to appoint the accruing rents, but not by way of anticipation, and in default of appointment there is a gift to her for her separate use, the restraint upon anticipation applies only to the exercise of the power. Barrymore v. Ellis, 8 Sim. 1; Medley v. Horton, 14 Sim. 222. But if the gift in default of appointment is followed by a receipt clause applied to the same rents as those she has power to appoint, the restraint upon anticipation will extend to the whole gift. Moore v. Moore, 1 Coll. 54; Brown v. Bamford, 1 Ph. 620. Chap. XXXVII. ceases as income due. A restraint upon anticipation does not affect income which Restraint has accrued due though not paid. Hood Barrs v. Heriot, (1896) regards A. C. 174; overruling Cox v. Bennett, (1891) 1 Ch. 617; Hood Barrs v. Cathcart, (1894) 2 Q. B. 559; Pillers v. Edwards, 71 L. T. 788, so far as contra. A judgment against a married woman restrained from anticipation can therefore be enforced against income due at the date of the judgment, but not against income afterwards becoming due. In re Lumley, (1896) 2 Ch. 690; Whiteley v. Edwards, (1896) 2 Q. B. 48. part not But a married woman restrained from anticipation cannot Apportioned assign an apportioned part of the income accruing at the assignable. date of the assignment. She can only assign what has actually become payable according to the instrument under which it is payable. In re Brettle; Jollands v. Burdett, 2 D. J. & S. 79. Sect. 2 of the Married Women's Property Act, 1893 (56 & 57 Vict. c. 63), provides that in any proceeding by a woman or by a next friend on her behalf, the Court may order payment of the costs of the opposite party out of property subject to a restraint upon anticipation. See Hood Barrs v. Cathcart, (1894) 3 Ch. 376; In re Godfrey; Thorne-George v. Godfrey, W. N. 1895, 12. CHAPTER XXXVIII. Chap. XXXVIII. Remainder in chattels. Consumable articles cannot be given over. LIMITATIONS BY WAY OF REMAINDER-DIVESTING. I. WHAT CANNOT BE GIVEN OVER. IN some things nothing less than an absolute interest can be given. There can be no remainder in the strict sense of the word of chattels. At law a grant of chattels for life vests the whole legal interest in the tenant for life. This rule, however, does not apply to gifts by will. It has long been settled that under a gift by will of a term to A. for life, and after his death to B., or to the children of A., the legal interest passes by way of executory devise to the person entitled under the will on the death of the tenant for life. Manning's Case, 8 Rep. 94b; Lampet's Case, 10 Rep. 46b; Stevenson v. Mayor of Liverpool, L. R. 10 Q. B. 81. In some cases the nature of the property is such as not to allow of successive limitations; thus: Things que ipso usu consumuntur cannot be given over, unless they form part of a stock-in-trade. Randall v. Russell, 3 Mer. 190; Andrew v. Andrew, 1 Coll. 690; Groves v. Wright, 2 K. & J. 347; Bryant v. Easterson, 7 W. R. 298; 5 Jur. N. S. 166; Phillips v. Beal, 32 B. 25; Cockayne v. Harrison, 13 Eq. 432; see Re Hall's Will, 19 Jur. 974; Re Colyer, 55 L. T. 344; Connolly v. Connolly, 56 L. T. 304. Even in the case of stock-in-trade if the tenant for life is not to be liable for depreciation he takes absolutely. Breton v. Mockett, 9 Ch. D. 95. But a gift of so much of the testator's wine as the legatee can consume in the house is effectual, and does not make the legatee absolute owner of the wine. Re Colyer; Millikin v. Snelling, 55 L. T. 344. Chap. XXXVIII. There can be no remainder Absolute interests can of course not be limited over by way of remainder; thus a devise, if A. dies without heirs, after a after an absoprior devise to A. in fee, is void. Tilbury v. Tarbut, 3 Atk. 617; 1 Ves. Sen. 88. And in the same way absolute interests in personalty cannot be given to several persons in succession. Byng v. Lord Strafford, 5 B. 558; see In re Percy; Percy v. Percy, 24 Ch. D. 616. lute interest. after abso lute gift which lapses But if personalty is given to A. and the heirs of his body Gift of with remainder to B. and the heirs of his body, and A. dies personalty before the testator, B. takes, though he could have taken nothing if A. had survived. In re Lowman; Devenish v. Pester, (1895) 2 Ch. 348; overruling dicta in Harris v. Daris, 1 Coll. 416, and Hughes v. Ellis, 20 B. 193; Greated v. Greated, 26 B. 621, so far as contra. It would seem that a gift of consumable articles to A. for life, remainder to B., would not lapse by A.'s death in the testator's lifetime, notwithstanding Andrew v. Andrew, 1 Coll. 690. There can be no gift over of so much as a legatee does not dispose of where an absolute interest has been given to the legatee. Watkins v. Williams, 3 Mac. & G. 622; Henderson v. Cross, 29 B. 216; Bower v. Goslett, 27 L. J. Ch. 249; 6 W. R. 8; In re Jones; Richards v. Jones, (1898) 1 Ch. 438; In re Walker; Lloyd v. Tweedy, (1898) 1 Ir. 5. Such a limitation is, however, valid in a settlement. Turner v. Caulfield, 7 L. R. Ir. 347. Nor can there be a gift over of what remains after payment of the debts of a legatee to whom an absolute interest is given. Perry v. Merritt, 18 Eq. 152. Gift over of so much as a legatee does not dispose of is void. with power to appoint. The case is, of course, different if the true construction is Life interest, that the legatee takes a life interest only (see ante, p. 455), and if a fund is given to a person expressly for life, with a power of disposing of it during life or by will, a gift of it after the death of the donee of the power is good, so far as the power is not exercised. Surman v. Surman, 5 Mad. 123; Pennock v. |