2271. Futility of Husband's Will.—A husband cannot convey by will any of his wife's real property, or interests therein.

WIFE'S INCAPACITY.

2272. Temporary or Permanent.—If a wife is labouring under mental incapacity for business, either temporary or permanent, it is impossible to alienate, mortgage, or sell any of her freehold estate; but,

2273. Lucid Intervals.—A lucid interval of insanity, will enable a wife to acknowledge effectually her consent to the disposal of her property.

WIFE'S POWER OF SALE.

2274. Settled Estate.-A wife who has an estate settled upon. her alone, can sell or dispose of the same without the sanction or knowledge of her husband; but,

2275. Unsettled Estate.-Real property, of whatever nature (not settled), brought by the wife at the time of marriage or afterwards, cannot be sold, mortgaged, or otherwise legally disposed of by the wife without the sanction and co-operation of her husband.

2276. Caution to Purchasers.—Purchasers of property from a wife should be cautious, and assure themselves that the property is really in her own right to sell, as part of her settlement. Otherwise, how

ever,

HUSBAND'S INCAPACITY.

2277. Provision is made under the 3 and 4 Will. IV. c. 74, s. 91, as follows:

"Provided always, and be it further enacted, that if a husband shall, in consequence of being a lunatic, idiot, or of unsound mind (and whether he shall have been found such by inquisition or not), or shall, from any other cause, be incapable of executing a deed, or of making a surrender of lands held by copy of court-roll, or if his residence shall not be known, or he shall be in prison, or shall be living apart from his wife (either by mutual consent, or by sentence of divorce, or in consequence of his being transported beyond the seas, or from any other cause whatsoever), it shall be lawful for the Court of Common Pleas, by an order to be made in a summary way upon the application of the wife, and upon such evidence as to the said Court shall seem meet, to dispense with the concurrence of the husband in any case in which his concurrence is required by this Act or otherwise; and all acts, deeds, or surrenders to be done, executed, or made by the wife, in pursuance of such order, in regard to lands of any tenure, or in regard to money subject to be invested in the purchase of lands, shall be done, executed, or made by her in the same manner as if she were a femme-sole; and when done, executed, or made by her, shall be as

good and valid as if the husband had concurred; but without prejudice to his rights as then existing independently of this Act;" therefore,

2278. Wife's Affidavit.—In case of a conveyance or mortgage by a wife whose husband is mentally incapable, the affidavit of the wife of her husband's incapacity must be made in open court (2244).

DECISIONS.

2279. Several decisions in reference to conveyances by wives of husbands labouring under mental incapacity, serve to illustrate the essentials of business of that kind; thus,

2280. Case of Separation.—Where the parties had for many years lived separately, and the husband had latterly become deranged, the wife moved that she might sell certain lands in which she was respectively tenant-in-tail in possession (216), and tenant-in-fee-simple in possession, and she got a rule permitting the sale accordingly.

2281. Sanction of Court.—In all cases where a wife effects a conveyance or disposal of her unsettled property without her husband's concurrence, the sanction of the Court is necessary to the validity of the proceedings.

HUSBAND'S PROLONGED ABSENCE.

2282. When a husband has been living apart from his wife for any length of time, his concurrence in his wife's deeds may sometimes be dispensed with.

2283. Ignorance of Residence.-Where the parties had not seen each other for several years, and the wife was ignorant of the residence of the husband, and had received no information of him for a long time, she was authorized to sell copyhold premises to prevent the foreclosing of a mortgage upon them.

2284. Husband's Unjustifiable Refusal.—Where the parties had lived together for eight weeks only, and then separated, the husband afterwards living at Hinckley and the wife at Coventry, application was made to the husband to concur in the sale of a small property settied upon her by will after the marriage. The husband refused to concur, unless he received half the purchase money. It was decided that "the husband's refusal to concur in the conveyance, except upon the terms stated, is a sufficient reason for granting the application."

"NERVOUSNESS" NO DISQUALIFICATION.

2285. Refusal of the Court is recorded in a case where the wife was heir of a surviving trustee; and her husband not only lived

apart from her, but was in a nervous and excitable state, so as to render it difficult to procure the execution by him of any legal instrument. The Court refused to dispense with his concurrence until an application had been made to him to concur.

WIFE'S PORTION.

2286. A "portion " may be simply what the wife brings with her in marriage, or it may be secured by marriage settlement (2521), or it may be a sum of money or other property secured to her by a will or other document.

2287. Parties Liable.-Trustees, or the party who executed the marriage settlement, are the parties liable for a payment of a “portion," and against them, if not already paid, the husband is empowered to proceed as for and instead of his wife, where the portion is not in the nature of a settlement, as it rarely is.

2288. When Payable.-Portions are generally payable at the age of twenty-one, or on marriage, if that take place during minority ; but the time when the portion may be due sometimes depends upon considerations concerning survivorship of younger children, and other circumstances (2298).

2289. Possession Essential.-It is illegal to pay portions out of, or on the security of, property only in anticipation. The property must be in possession before the parties are liable to make the payment ; but.

2290. Mortgage.—Special powers are secured to trustees to provide a portion when due, by means of mortgage upon property in possession; yet,

2291. Limitation to Specific Amount.-Mortgages effected for the purpose of providing a wife's portion must be strictly limited to the amount of the portion.

CONDITIONAL PORTIONS.

2292. Sometimes the payment of a wife's portion is conditional upon the child surviving both parents; or,

2293. There may be a proviso prohibiting the payment of a portion in parent's lifetime.

2294. Consols.-Investment in consols has been decided to be equivalent to payment.

2295. Interest.—Interest at the rate of four per cent. is payable, in addition to a wife's portion, for the interval between the date when due, and date when paid.

2296. No Limitation of Time.-Claims for portions remain good

for any number of years, as they are expressly exempted from the Statute of Limitations (2).

2297. Costs.-Costs, if any, have been decided to be payable out of the estate, and not out of the portion.

2298. Divisible Portions.-Sums set aside as portions in anticipation of a family of an indefinite number of children are payable in equal amounts to each child; or,

2299. Priority of Elder Children.-If the sum for each child is named, then each child has an equal claim to that sum until the estate liable to the payments shall be exhausted; consequently,

2300. Sacrifice of Younger Children.-The interests of younger children who are concerned in their mother's portions may be sacrificed by payments previously made to their elder brothers or sisters.

2301. Exclusion of Eldest Sons.—In some cases, however, and generally if the estate, upon the whole, descends to the eldest son, he can have no claim upon nor interest in any sum or sums reserved as portions. The like rule does not apply if the heir be a daughter with younger sisters; and

2302. Advanced Sons.-If a younger son, by the death of his elder brother or brothers, becomes the eldest son, then his claim to his portion, or to the share of the portion money, remains good.

2303. Father's Stipulation Fraudulent.-When the father of children is their trustee in respect of their portions, whether secured by will or settlement, a stipulation made by him for his own benefit has been decided to be a fraud; and

2304. Acceptance by One not All.-A stipulation, though accepted by one child, is not therefore binding on any of the other children. 2305. Unborn Children.—A child born after the death of its father is entitled to its portion, though not contemplated by the will of the father.

ALIMONY.

UNSETTLED FORTUNE.

2306. When a wife has brought to her husband an unsettled fortune, and he fails to provide for her adequately, she is entitled to a pecuniary allowance which is called "alimony;" but,

SETTLED FORTUNE.

2307. As a general rule, a wife with a settled fortune cannot successfully claim alimony; though,

(a) See "Limitations."

2308. Rule not Universal.—Settled property does not necessarily bar alimony, if the husband has the advantage of any other of his wife's property which has not been settled upon her.

USUAL PLEA.

2309. A claim for alimony is usually upon the plea of desertion by the husband; and

2310. Matrimonial Delinquency.—A claim for alimony is especially strong when accompanied by proof of the husband's matrimonial delinquency; notwithstanding,

2311. No Fortune. It must be distinctly borne in mind, with regard to alimony, that a wife who brought her husband no unsettled property whatever, cannot legally claim alimony.

MAINTENANCE,

2312. Alimony usually assumes the form of a claim for maintenance; and

WIFE'S INHERENT RIGHT.

2313. If a wife possessed property absolutely in her own right before marriage, and no settlement has been effected, she is entitled of right to an allowance for maintenance; though,

2314. Squandered Property.-When a wife's property has been squandered by her husband, and he has none of his own, there is no remedy; but,

2315. Tangible Remainder.-If a wife's property remains in any tangible or available form, she may secure a share of it by prompt proceedings; thus,

PROCEEDINGS.

2316. A wife who has brought unsettled property to her husband, and is not adequately provided for, is empowered to proceed before a Master in Chancery for an order upon her husband to provide her with suitable maintenance in proportion to the amount of her property.

2317. Conditional Decision.—The decision in one case was, “As it appears to the Court that the husband has gone out of the kingdom, without leaving a provision or maintenance for his wife, I decree that the interests arising from the trust money shall be paid to her till he thinks proper to return and maintain her as he ought."

2318. Return of Husband.—It will be seen, therefore, that on the husband returning to his wife, or on her restoration to conjugal rights, the separate provision above contemplated ceases.