thereinbefore expressed and declared concerning the said trust moneys therein bequeathed to them. The estate was insufficient to provide a fund producing £200 a year income. The House of Lords (Lord CHELMSFORD, C., Lords BROUGHAM, CRANWORTH, and WENSLEYDALE) reversing the judgment of Sir JOHN ROMILLY, M. R. (which had been formally affirmed by the Lords Justices TURNER and KNIGHT BRUCE, who differed in opinion), decided that the widow was not entitled to have the deficiency made good out of the corpus of the fund. Lord CHELMSFORD, C., cited the above-quoted observation of Lord CRANWORTH in Wright v. Callender, and considered that there was language to show that the testator did intend "the gift to be continued in its integrity during the life of the annuitant and in that state to go over." And all the learned lords concurred in this opinion.

In the case of Re Parry, Scott v. Leak (1889), 42 Ch. D. 570, where a testator gave a number of annuities, and left estate mainly consisting of two freehold theatres and two leasehold theatres, it was held by NORTH, J., that the annuitants were not, as against a proposal of the residuary legatees to secure the annuities by means of a first mortgage of the freehold theatres, entitled to have the leasehold theatres sold and the proceeds after payment of debts invested in investments in which cash under the control of the Court might be invested, and the whole income of the estate then applied in payment of the annuities. It was observed that if the latter proposal had been carried out, the presumable object of getting rid of the liability on the leasehold property would not have been entirely effected.

ANTICIPATION (RESTRAINT ON).

TULLETT v. ARMSTRONG.

(CH. 1838, 1840.)

RULE.

A RESTRAINT against anticipation is valid only as a modification of the separate estate conferred conferred upon a

married woman.

If a gift of income is made to a woman, who is unmarried, expressed to be for her separate use without

power

of

Tullett v. Armstrong, 1 Beav. 1.

anticipation; then, since the separate use cannot while she is unmarried have any effect, the restraint on anticipation is likewise suspended. But if she marries without having alienated the future payments; both the separate use and the restraint attach during the coverture. On becoming discovert she again becomes free to alienate.

Tullett v. Armstrong,

1 Beav. 1-33; 4 My. & Cr. 390-407; (s. c. 8 L. J. N. S. Ch. 19–22; 9 L. J. N. S. Ch. 41-48).

The plaintiff in the case claimed under certain securities created by William Armstrong and Mary, his wife, which purported to charge certain interests in property under the will of one Nathaniel Bradford.

Nathaniel Bradford's will gave all his property to trustees in trust for his wife for life, and at her death gave certain property between certain persons including his granddaughter Mary Augusta Tilt (who afterwards became Mrs. Armstrong) during their joint and several lives, with directions that they should not dispose of their several life estates by way of anticipation, and so that no husband should acquire any control over the life estate. And in the latter part of the will certain copyhold and leasehold property was given to the said Mary Augusta Tilt and her assigns during her life (with no mention of restraint against anticipation): and there was a further declaration in the will that the devises and bequests made to his granddaughters (Mary Augusta Tilt and another) were given to them free from the rights, control, contracts, or debts of any husband.

Mary Augusta Tilt was unmarried at the date of the will and of the testator's death. She afterwards married William Armstrong, and they together executed the securities purporting to charge the interests in question.

The securities also purported to include the interest which Mrs. Armstrong took under the will of Ann Bradford, dated 25th August, 1826. These interests were expressly given by this will to Mary Augusta Tilt with restraint on anticipation, and so that they should not be subject to the control of any husband. The marriage of Mary Augusta Tilt to William Armstrong

Tullett v. Armstrong, 1 Beav. 1-22.

took place after the making of Ann Bradford's will, but before her death.

At the time of the execution of the securities in question, the life interests had vested in possession, the widow of the testator, Nathaniel Bradford, having previously died.

The question as to the validity and effect of the securities having been argued,

[21]

The MASTER OF THE ROLLS (Lord LANGDALE), after stating the effect of the wills and the position of the title, laid down the principles of the law and their bearing on the case as follows:In this Court a married woman has, for more than a century, been considered as capable of possessing property to her own use, independently of her husband; such property is called her separate estate, and, in respect of it, she is considered as a feme sole, enjoying, and capable of exercising, her rights as such.

The property may be acquired, either by contract with [*22] the husband before the marriage, or by gift from him, or from any stranger wholly independent of such contract; so far as his legal rights as husband may interfere, the Court will treat him as a trustee; and property held by or for the wife to her separate use, if unaccompanied by any restraint, is subject to her power of alienation, and the other incidents of property held by men or single women.

The estate for separate use, as sanctioned by courts of equity, has its peculiar existence only in the married state. It operates as a protection to a married woman, against the legal power over the wife's property which is vested in her husband. It acts in contravention and control of the legal right of the husband, and as against his legal power it is a sufficient protection; but the power of alienation remaining in the wife, the separate estate, unfettered, is no protection against the moral influence of the husband, and many instances have occurred and daily occur in which the wife, under the persuasion or influence of her husband, has been and is induced to exercise her power of alienation in his favour or for his benefit, and thus defeat the protection intended for her.

But as the separate estate itself owed its origin and support to the courts of equity, it was understood, that the same courts might so modify it as to secure the protection which was

Tullett v. Armstrong, 1 Beav. 22-24.

intended; and accordingly it was intimated by Lord THURLOW, that if a gift clearly expressed, that the separate estate should be incapable of assignment in anticipation or of alienation, that intention would be carried into effect, and his Lordship, being of that opinion, himself set the example in a case in which he personally took an interest; and from that time, now nearly half a century ago, it has been usual to introduce into wills and settlements a clause giving to women real and personal estate for their separate use, independently of their husbands, [*23] without power of assignment, by way of anticipation or of alienation; and such clauses, though their operation has been considered to be, as undoubtedly it is, anomalous, and irreconcilable with the ordinary legal rules affecting the limitations of estates, and the legal incidents of property, have been repeatedly approved and carried into effect by this Court, and settlements and provisions for families to a very great extent have been framed in reliance upon them. And in Jackson v. Hobhouse, 2 Mer. 488, Lord ELDON emphatically declared, that it was too late to contend against the validity of a clause in restraint of anticipation.

I apprehend that the restrictive clause or fetter (as it has been called) has in this Court always been considered as effecting a modification of the separate estate, and consequently, to have its operation only in the married state. It is said, indeed, that before the case of Brandon v. Robinson, 18 Ves. 429; 1 Rose 197; 11 R. R. 226, there were some eminent lawyers, who considered that a similar fetter might be imposed by this Court, on property enjoyed by men and without relation to the married state; but Lord ELDON, in deciding that case, after referring to Lord THURLOW's reasoning, that this Court, having by its doctrine of separate estate enabled a woman, though married, to alien, might limit her power over it, thought it proper to state distinctly, that the case of a disposition to a man, who, if he has property, has the power of aliening, was quite different; and I conceive, that the validity of a clause in restraint of alienation, when clearly expressed, in connection with a clause giving the estate for the separate use of a married woman, also clearly expressed, has not till lately been doubted.

*As the clauses conferring the separate estate, and [*24] annexing the fetter, have both of them their effective.

operation, only in the state of marriage, and are intended for

the protection of married women, and not to restrain the incidents of property vested in persons under no legal incompetency, it has been determined, that neither of them has any practical operation whilst the donee is single; it has been considered that, as an unmarried woman is as capable of enjoying and exercising the rights of property as a man is, the property must in her, whilst unmarried, be accompanied by its ordinary incidents, and upon this principle would seem to be founded the several cases of Jones v. Salter, 2 Russ. & M. 208, Barton v. Briscoe, Jac. 603, Woodmeston v. Walker, 2 Russ. & M. 197, Brown v. Pocock, 2 Russ. & M. 210; 2 M. & K. 189; 5 Sim. 663.

In the three first of these cases, the alienation took place during widowhood, i. e., after the termination of a coverture. In the last the alienation took place before coverture. In the cases of Woodmeston v. Walker and Brown v. Pocock, the LORD CHANCELLOR reversed orders of Sir JOHN LEACH, who was of opinion, that an estate given to the separate use of a woman independent of any husband she might marry, and accompanied by the fetter, prevented her from alienation when single, the intention having been, to secure to her the enjoyment of separate property during coverture, and coverture having therefore been in the contemplation of the donor, and being possible on the part of the donee, Sir JOHN LEACH considered, that she was not at liberty to defeat that intention, by any act of her own when single; his opinion was overruled, and the point does not arise in any of the cases before me. Supposing it to be satisfactorily established, that a woman may, when single, dispose of property given to her for her separate use without power of alienation, none of these cases would be affected by it.

[* 25]

* But it has been argued, that if the gift of property for the separate use of a woman, whether intended to be thus fettered or not, becomes vested in the woman whilst single, she then possesses immediately the faculty of disposition or the power of alienation; and that, if she afterwards marries, she by the fact of marriage subjects this, like any other property, to the marital power of the husband, and in that way, loses all the protection she was intended to have; and in the arguments which have been used on this subject, a desultory or shifting privilege or fetter attaching on the marriage, and of no practical operation when the woman is discovert, has been treated as a sort of absurdity not to be endured.