mortgage, charge, or otherwise in the way of anticipation, with remainder as she should appoint by will, and in default of appointment to A., the court after the death of the husband ordered the fund to be transferred upon the consent of the widow and her daughter, the latter being entitled in default of appointment. So a clause against anticipation, annexed to a life interest in a trust fund bequeathed to a female infant, does not prevent her, after she comes of age and before marriage, from effectually assigning her whole interest in the legacy. (Brown v. Pocock, 2 Russ. & Mylne, 210; 2 Mylne & Keen, 189. See Massey v. Parker, Id. 174.)

The clause against anticipation may be confined to a particular coverture. (Knight v. Knight, 6 Sim. 121; Bradley v. Hughes, 8 Sim. 149.)

Real estate was devised to A., the wife of B., her heirs and assigns for ever, for her use and benefit, with power to appoint, and in default, remainder over. Personal estate was given to A. for her sole and separate use, independent of her husband B., and her receipts alone to be sufficient discharges: it was held, that the limitations to the separate use of A. did not extend beyond the husband specifically named. (Moore v. Morris, 4 Drew. 33; 3 Jur., N. S. 552.)

It is now settled that a gift to the separate use without power of anticipation will operate upon all the covertures of a woman, unless the provisions are destroyed while she is discovert; whether or not the provisions for separate use and against anticipation are applicable to the whole of the life estate given, or only to a particular coverture, must depend upon the construction of the words of the gift. By a post-nuptial settlement a sum of money, the property of the wife, was vested in trustees upon trusts which were construed to operate as a direction to pay the dividends to the wife for life, or to her appointees, without anticipation: it was held, that the restraint against anticipation operated during the whole life of the wife, and was not restricted to an existing coverture by the introduction of additional words, which obviously applied only to such existing coverture. If the restriction forms part of the only sentence which gives any estate, and is in words made part of the gift, then the estate and the restriction must be commensurate. (In re Gaffee, 1 Mac. & G. 541; 1 Hall & T. 635; 7 Hare, 101.)

A court of equity will give effect during coverture to a clause in restraint of alienation annexed to a gift to a married woman for her separate use, whether the subject of the gift be real or personal estate, or whether it be in fee or only for life. Lord Lyndhurst, C., said, "After the case of Tullett v. Armstrong, (4 My. & Cr. 377,) there can be no doubt about the doctrine of this court respecting the property given to the separate use of a married woman; and it is clear that that doctrine applies as much to an estate in fee as to a life estate. The object of the doctrine was to give a married woman the enjoyment of property independent of her husband; but to secure that object it was absolutely necessary to restrain her during coverture from alienation. The reasoning evidently applies to a fee as much as to a life estate, to real property as much as to personal. The power of a married woman, independent of the trust for separate use, may be different in real estate from what it is in personal; but a court of equity having created in both a new species of estate may in both cases modify the incidents of that estate." (Baggett v. Meux, 1 Phill. C. C. 627.)

Lands were devised to trustees "for the use and benefit of T., the rents and profits of which estate she should receive from the tenants herself while she lives, whether married or single." In a later part of the will, which did not contain anything authorizing a sale or mortgage, the testatrix directed that no sale or mortgage of the estate or its rents should take place during the life of T., who was unmarried when the will was made, but who had married after the death of the testatrix: it was held, that she took an estate for life for her separate use, without power of anticipation, and that a mortgage made by her and her husband was therefore invalid. (Goulder v. Camm, 1 De G., F. & G. 146.)

A testator bequeathed personal estate in trust for the use of a feme covert, and without power of anticipation. The legatee was, at the date of the will, domiciled abroad, and had continued so ever since. By the law of her

3 & 4 Will. 4,

c. 74, s. 78.

3 & 4 Will. 4, c. 74, s. 78.

Power of disposition over

separate estate.

domicile the restraint against anticipation was disregarded, but the court, nevertheless, refused to give effect to a beneficial arrangement made by her anticipating her income. (Peillon v. Brooking, 25 Beav. 218.)

By lease and release, by way of marriage settlement, lands, the inheritance of the wife, were conveyed by her to trustees and their heirs, to the use of the wife and her assigns, until the marriage; and from the solemnization of the marriage in trust for the wife and her assigns during her life, for her own sole and separate use, independent of the debts, control, or engagements of the husband; and from her decease to the use of the husband, his heirs and assigns: it was held, that the trustees did not take the legal estate during the life of the wife, but that the use was executed in her, notwithstanding the words "to her own sole and separate use," &c. Parke, B., observed, "Although no doubt it is highly probable that these parties intended to give the trustees the legal estate during the life of the wife, they have not used apt words for that purpose. We cannot collect clearly from the words of the deed, that they intended to give the trustees an active trust, to exclude the husband from control, by giving the estate to the trustees in order to pay over the rents and profits to the wife. The limita- . tion to her sole and separate use is therefore void at law, and the use is executed in the wife, although the husband is a trustee for her in equity." (Williams v. Waters, 14 Mees. & W. 166; see p. 173.)

Although the law acknowledges no separate estate in the wife, it is otherwise in a court of equity, where the wife in the absence of any clause against anticipation is permitted to deal with such property as if she were a feme sole, not only as to strangers, but as to her husband. Therefore, where in a deed executed, upon a separation between husband and wife, by them and by the trustees of their marriage settlement, the wife charged her separate property comprised in the settlement with the payment of an annuity to the husband, and the husband released his marital rights in respect of all future property acquired by the wife: it was held, that the release by the husband was a good consideration for the grant of the annuity by the wife, and that the payment of it would be enforced by the court. (Logan v. Birkett, 1 Mylne & Keen, 220.)

Where a testator devised a freehold estate to trustees, in trust to pay the rents as the same should become due and payable into the hands of his wife, and not otherwise, for her life for her separate use, and directed that the receipts of his wife alone for what was actually paid into her own proper hands should be good discharges to his trustees, it was held that the wife had power to alienate her life estate; Sir J. Leach, V. C., observing, that it was too late to contend that a lady is restrained from the power of alienating her life interest, because it is given to her sole and separate use, and is to be paid into her own proper hands, and upon her receipt alone. The contrary having been settled by repeated authorities, the construction given to the expressions in question was, that they were intended only to exclude the marital claims of any present or after-taken husband, and not to control that right of disposition which is incident to property. (Acton v. White, 1 Sim. & Stu. 429; see Sugd. Pow. 118, 119, 5th ed.; Barrymore v. Ellis, 8 Sim. 1. See Cox v. Chamberlain, 4 Ves. 631; Roach v. Wadham, 6 East, 289; Wilde v. Fort, 4 Taunt. 334.) A mere direction to pay income to the wife's separate use from time to time will not restrain her from alienation. (Parkes v. White, 11 Ves. 222.)

In Alexander v. Young, (6 Hare, 393,) stock was bequeathed to the separate use of a married woman for life, and after her decease to her appointee by deed or will; with a direction that any appointment by deed should not come into operation until after her death. Wigram, V. C., held, an irrevocable appointment by deed might be made, and that the clause could not be read as amounting to a restraint against anticipation.

The intention to restrain anticipation must be clearly expressed, but it is not necessary in all cases that negative words should be introduced in the receipt clause to complete the restraint on alienation, for that clause must be construed to relate to the income, subject to such restraints as are imposed by the former part of the settlement. (Harrop v. Howard, 3 Hare, 624; Moore v. Moore, 1 Coll. 54; Medley v. Horton, 8 Jur. 853.)

No particular form of words is necessary to impose a restraint on anticipation in a limitation to the separate use of a married woman, the question being one of intention. (Baker v. Bradley, 2 Jur., N. S. 98; 25 Law J., Chanc. 7.) By an instrument giving property in trust for a married woman and her assigns for her life for her separate use, it was declared that the receipts of the married woman alone, or of some person or persons authorized by her to receive any payment of the rents and income after such payment should have become due, should alone be good discharges: it was held, that she was restrained from anticipation. (Ib.) The case of Field v. Evans, 15 Sim. 375, was approved of. (lb.)

A testator bequeathed leasehold and other personal estates to trustees in trust to pay the rents, &c., to such person or persons as a married woman should, by writing under her hand from time to time, but not by way of anticipation, appoint, and in default of such appointment, or so far as the same should not extend, into her proper hands for her sole and separate use, with a direction that her receipts, notwithstanding coverture, should be good discharges, and after her death in trust for her children. It was held, upon the particular terms of the gift, that the restraint on anticipation applied to an assignment, by the married woman, of her separate estate as well as to an appointment in execution of her power, notwithstanding the will did not provide that her receipts alone should be good discharges. (Brown v. Bamford, 1 Phill. C. C. 620; 11 Sim. 127. See Moore v. Moore, 1 Coll. C. C. 54; Field v. Evans, 15 Sim. 375; Harnett v. Macdougall, 8 Beav. 187.) A gift of property to the separate use of a woman, "but not to be sold or mortgaged," was held to restrain anticipation. (Steedman v. Poole, 6 Hare, 193.)

It seems well established, that a settlement, gift, or limitation of personal property to the separate use of a woman, or in similar words, without any restraint on her alienation, enables her not only to receive and apply to her separate use the income, but to dispose of the capital or corpus, either by an act inter vivos, or by will. (Rich v. Cockell, 9 Ves. 369; Fettiplace v. Gorges, 1 Ves. jun. 46; 3 Br. C. C. 8; see also Peacock v. Monk, 2 Ves. sen. 191; Hearle v. Greenbank, 3 Atk. 696; 1 Ves. sen. 298.) Where an estate in fee simple is conveyed for the separate use of a married woman, without an express power of appointment reserved to her, she cannot during her coverture dispose of the fee simple, without the concurrence of her husband in such assurance as is required for passing her interest in lands. (See 1 Sand. Uses, 345, 4th ed.; Chance on Powers, pl. 545; Goodill v. Brigham, 1 Bos. & P. 192.) Thus where lands were devised to a trustee and his heirs, in trust for the separate use of a married woman, and to convey the same to her, her heirs and assigns, free from the control of her present or any future husband, and to permit her to take the rents and profits: it was held, that she had no power of devising the premises, for the legal estate was vested in the trustee for securing her against her husband's rights, with the beneficial interest in fee in her, without the incidental power of devising, and upon her death the trustee became seised for the heir at law, notwithstanding she had executed a will in favour of another person. (Doe d. Stevens v. Scott, 1 Moore & P. 317; 4 Bing. 505.) A married woman having real property settled to her separate use, with a testamentary power over it, may dispose of leaseholds and other chattels purchased with the produce of it, but not of real estate so purchased. (Churchill v. Dublin, 9 Sim. 447.)

A husband and wife cannot effectually dispose of the life interest of the wife in a fund not settled to her separate use, beyond the duration of the coverture. (Stiffe v. Everitt, 1 M. & Craig, 37.) The Court of Chancery will not supply the want of an acknowledgment of a deed by a married woman, to do so would deprive married women of that protection which the law has thrown round them. (Lassence v. Tierney, 14 Jur. 182, 186; 1 Mac. & G. 551; see p. 572.) A feme covert, to whose sole and separate use a reversionary interest in personal property was given, may assign that interest as if she was a feme sole; and her assignment will bind her right in case she survive her husband. ( Keene v. Johnstone, 1 Jones & Carey, Ir. R. 255.) A married woman, to whom a rent-charge for life in reversion was

3 & 4 Will. 4,

c. 74, s. 78.

devised to her separate use without the intervention of trustees, joined with her husband in assigning it for valuable consideration; such assignment was held to bind her after her husband's decease, although no fine had been levied. (Major v. Lansley, 2 Russ. & M. 355.)

A fund in court was subject to a trust for a husband for life, remainder to his wife for life, remainder to their son absolutely. The husband and son, by deed, surrendered and released their respective interests to the wife, for the express purpose of giving her a present absolute interest in the fund, and thereby enabling her to assign it at once to the son. But a petition by the three for the payment of the fund to the son was refused, on the ground that the Court of Chancery will not establish an equitable merger by analogy to law, where the effect would be to defeat its own rules and practice in the protection of married women from the marital control. (Whittle v. Henning, 2 Phill. C. C. 731; 11 Beav. 222; 12 Jur. 1079; Story v. Tonge, 7 Beav. 91.) Shadwell, V. C., had, in several cases under similar circumstances, ordered the transfer of trust funds. (14 Sim. 592-599; see Bishop v. Colebrooke, 16 Sim. 39.)

Although the power to impose a restraint against anticipation in the case of a married woman is a creature of equity, still the imposition of the restraint is the act of the settlor, and the court will not assist in removing the restraint, although it would be for the benefit of the married woman. Therefore a legacy to a married woman, upon condition that she and her husband absolutely convey, or cause to be conveyed, their interests in an estate vested in trustees, upon trust for herself for life, without power of anticipation, with remainder to her children, cannot be paid to her, as she is unable to comply with the condition. (Robinson v. Wheelwright, 2 Jur., N. S. 554; 25 Law J., Chan. 385; 21 Beav. 214; 2 Jur., N. S. 32.)

Where purchase money paid into court by a railway company belongs to a married woman, the court will pay it out to her without deed acknowledged, but simply upon her examination. (Re Hayes, 9 W. R. 769.) The court will not order payment to a married woman on her separate receipt without examination. (Gibbons v. Kibbey, 7 Jur., N. S. 1298; 10 W. R. 55.)

Acknowledgment of Deeds.

79. Every deed to be executed by a married woman for any of the purposes of this act, except such as may be executed by her in the character of protector for the sole purpose of giving her consent to the disposition of a tenant in tail, shall, upon her executing the same, or afterwards, be produced and acknowledged by her as her act and deed before a judge of one of the superior courts at Westminster, or a master in chancery (c), or before two of the perpetual commissioners, or two special commissioners, to be respectively appointed as hereinafter provided (d).

(c) The office of Master in Chancery is now abolished. (15 & 16 Vict. c. 80, s. 1.)

Any acknowledgment to be made by any married woman under 3 & 4 Will. 4, c. 74, may be received by a judge of a county court, in the same manner as such acknowledgment may be received by a judge of a superior court. (19 & 20 Vict. c. 108, s. 73.)

By schedule C. to the latter act, the fee for taking the acknowledgment of a married woman is 17.

(d) Where any married woman shall be seised or possessed of or entitled to any estate or interest, manorial or otherwise, in land proposed to be conveyed for the purposes of the act affording facilities for the conveyance and endowment of sites for schools, she and her husband may convey the same for such purposes by deed, without any acknowledgment thereof. (4 & 5 Vict. c. 38, s. 5.)

An acknowledgment by a married woman before two commissioners, one of whom was interested, was held to be void. (Banks v. Ollerton, 10 Exch. 168; 23 Law J., Exch. 285; Re Ollerton, 15 C. B. 796.)

The statute 17 & 18 Vict. c. 75, intituled "An Act to remove Doubts concerning the due Acknowledgment of Deeds by Married Women in certain Cases," was passed on the 7th August, 1854. This act recites the above section.

And whereas it is apprehended that deeds executed by married women under the provisions of the said act may be liable to be invalidated by the circumstance that the judge, or master in chancery, or one or both of the commissioners, taking the acknowledgment, may be or may have been interested or concerned, either as a party or otherwise, in the transaction giving occasion for such acknowledgment, and it is not expedient that deeds executed in good faith under such circumstances should be invalidated: it is therefore enacted as follows:

3 & 4 Will. 4,

c. 74, s. 79.

of deed not im

party before

taken being

1. No deed which has been acknowledged or which shall Acknowledgment hereafter be acknowledged by a married woman before a judge peachable by of one of the superior courts of Westminster, or a master in reason only of chancery, or before two of the perpetual commissioners or two whom same was special commissioners appointed as by the said act is required, interested. shall be impeached or impeachable at any time after the certificate of such acknowledgment has been filed of record in the Court of Common Pleas at Westminster, by reason only that such judge or master in chancery, or such commissioners, or either of them, was or were interested or concerned, either as a party or parties, or as attorney or solicitor or clerk to the attorney or solicitor of one of the parties, or otherwise, in the transaction giving occasion for such acknowledgment.

ings for quashing

2. Provided, that if any proceeding instituted before the Staying proceedthirteenth day of July, one thousand eight hundred and fifty- certificate of acfour, in the said Court of Common Pleas, for the purpose of knowledgment. quashing or taking off the file of records of the said court any certificate of an acknowledgment of a deed by a married woman, on the ground that such judge or master in chancery, or either of such commissioners, was interested or concerned as aforesaid, shall be pending at the passing of this act, it shall be lawful for the said court to proceed with and dispose of the same as if this act had not passed, except that if the said court shall be satisfied that any person or persons acting bonâ fide has or have been induced by the terms of the orders made by the said court in Hilary Term, one thousand eight hundred and thirty-four, to acknowledge, or to accept a title depending on the acknowledgment of, any deed or deeds before commissioners, one of whom may have been interested or concerned as aforesaid, the said court may refuse to permit the certificate to be quashed or taken off the file on such terms as to the payment of costs and expenses as the said court shall think fit to make.

Pleas may make

3. The Court of Common Pleas may from time to time Court of Common make any rules which to them may seem fit for preventing rule for prevent

ing commission