Tullett v. Armstrong, 1 Beav. 25, 26.

I confess, however, that I see no absurdity, but considerable convenience, in a law affording peculiar protection to the property of married women; which affords to women protection, or imposes upon them restraint, for their protection, only when they want it; which enables a woman when single and adult, upon deliberation, to settle her property according to her convenience, or, if most to her advantage, to forego her protection altogether; and yet, guarding against infancy or improvidence, secures her the protection when married, if she has not deliberately and designedly renounced it before the marriage took effect. And it appears to me, that this Court has not considered, that the woman by the fact of marriage subjects an estate given to her for her separate use, to the marital power of her husband.

In Lady Strathmore v. Bowes, 1 Ves. jun. 27; 1 R. R. 77, Lord THURLOW puts this case: "Suppose a relation had given her £10,000 for *her sole and separate use; if she [*26] had represented it as her own absolutely, so that upon a marriage it would have gone to her husband, this Court would have compelled the trustees to give it to her husband, but not otherwise." It is therefore clear, that Lord THURLOW did not think, that the woman by her marriage gave her separate estate to the husband; for looking at her situation before marriage, he distinguished between property given to her sole and separate use, which the Court would protect from the marital power. Moreover, many cases have occurred, in which property has been given to women, for their sole use, independent of any husband, and in which the Court has had to declare the rights of such women to the property, when they were single, and, consequently, whilst they had the power of alienation; if in such circumstances, the separate estate meant nothing, all that would have been proper would have been, to declare the woman entitled to the property without more; but the declarations have been that the women though single at the time were entitled to their sole and separate use, see Clayton v. Gresham, 10 Ves. 287, and on the marriage of a ward, the Court has ordered the property to be settled for her separate use during life, which would have been useless, if a widowhood put an end to that species of estate. But the question came directly under the consideration of the Court in Anderson v. Anderson, 2 Myl. & K. 427. Leasehold property was given by will to a woman, then single, to her own

Tullett v. Armstrong, 1 Beav. 26-28.

sole use, free of the control of any present husband, or any husband to come. The woman was single at the testator's death, and for several years afterwards. Before she married, she desired to have this property settled to her separate use; the intended husband refused, and the marriage took place without a [*27] settlement. *After the marriage, the wife claimed the

same property for her separate use; and, although the husband insisted, not only, that a gift to the separate use of an unmarried woman was insensible, as an attempt to limit her power of disposition, but that in this case there was an agreement to waive her claim, it was determined, that she was entitled to the leasehold, for her sole and separate use. This was the decree of Sir JOHN LEACH, who had, in a previous stage of the cause, granted an injunction, to restrain the husband from receiving the rents, and his order, in that respect, was confirmed by Lord ELDON, before whom a motion to dissolve the injunction was made.

Unfortunately, this case was not reported till the orders upon which the questions now arise had been made; but up to November, 1822, when the decree in Anderson v. Anderson, was pronounced, it seems to have been considered as quite clear, that a gift to a woman for her sole and separate use, independent of any husband, conferred upon her a separate estate during her marriage, although she might be single when the gift vested in interest or in possession. The separate estate was considered simply as an estate vested in a woman, which this Court would protect against the marital power of her husband, and no question had been raised as to the validity of a restraint upon alienation affecting the separate estate. And according to the law, thus understood, has been the constant practice of the profession, and there are very many cases in which married women, and through them their families, owe their sole support to provisions made for them on this understanding.

If the gift were so limited as to confer a separate estate [*28] during a particular coverture only, this Court did not extend it further; and the case of Benson v. Benson, 6 Sim. 126, is in conformity with that principle.

The cases which have raised the question are Newton v. Reid, 4 Simons, 141, Massey v. Parker, 2 Myl. & K. 174, and Brown v. Pocock.

Tullett v. Armstrong, 1 Beav. 28, 29.

The orders in Newton v. Reid and Brown v. Pocock (which is the second case of the same name) were made by the VICE CHANCELLOR, as it would seem, without any argument. In each case, property was given to the woman for her separate use, without power of assignment by way of anticipation; and alienations were made during coverture. In the first case, the VICE CHANCELLOR is reported to have said, at the time, that the restrictions were void, because the annuity was not given over upon alienation; and subsequently, 6 Sim. 131, "that the restriction on alienation was rendered ineffectual by the context of the will." In the other case, no reason whatever is assigned by the judge, though the reporter has transferred an observation of counsel to his marginal note, 5 Sim. 663; but, on a subsequent occasion, 6 Sim. 423, the VICE CHANCELLOR is reported to have said the cases of Barton v. Briscoe and Newton v. Reid, proceeded on this, that the policy of the law being in favour of the power to assign, the Courts will not permit that power to be restrained by a fetter which is to take effect on a subsequent marriage." Upon this, it is necessary to observe that in Barton v. Briscoe, the alienation was made during widowhood, whilst in Newton v. Reid, the alienation was made during coverture.

In the case of Massey v. Parker, it was a question whether the property was given to the separate use of * the [* 29] wife; if it were so given, no fetter was imposed upon it, and in that respect it differs from this case; and the LORD CHANCELLOR, then MASTER OF THE ROLLS, having determined, that the estate was not given to the woman for her separate use, the case might there have ended, but his Lordship proceeded to declare his opinion, that if the property had been given to the woman's separate use, it would, upon the marriage, have become the property of the husband.

As the validity of the restraint upon alienation appears to me to depend upon the existence of the separate estate, it is not to be disguised that the case of Massey v. Parker, if considered as an established decision, whilst it negatived the existence of the separate estate in such a case as the present, would also put an end to the restraint on alienation; and it must be admitted, that the case of Newton v. Reid, though the order was made without argument or opposition, has been more than once referred to without any disapprobation.

Tullett v. Armstrong, 1 Beav. 29, 30.

In the subsequent case of Davies v. Thornycroft, 6 Sim. 420, the VICE CHANCELLOR has expressed himself to have always understood that property might be given to the separate use of a woman married or unmarried, and has stated, I conceive correctly, that the practice of the profession has been, according to that opinion, without any variation; and in the same case he has stated, also I conceive correctly, that the cases of Newton v. Reid, Barton v. Briscoe, Jones v. Salter, Woodmeston v. Walker, and Brown v. Pocock, were all cases in which the question was whether, if the Court admits property to be settled to the of her being restrained from disposing of it; but to this statement it is most important to add, that the cases of Jones v. Salter, Barton v. Briscoe, Woodmeston v. Walker, and the first case of Brown v. Pocock, only show, that the Court does not admit of such restraint whilst the woman is single; whilst the case of Newton v. Reid, and the second case of Brown v. Pocock, are the only reported cases, in which, notwithstanding the fetter annexed to the separate estate, the Court has permitted alienation during coverture.

[* 30] separate use of a woman, it will also admit

In the result of the cases to which I have last adverted, it appears to have been the opinion of the LORD CHANCELLOR, when MASTER OF THE ROLLS, that the separate estate could not arise upon coverture, if the subject of it vested in the woman when single; and it appears to be the opinion of the VICE CHANCELLOR, that the separate estate would arise upon coverture, although the subject of it vested in the woman when single, but that the Court would not sanction any restraint upon alienation annexed to such separate estate.

In this state of the authorities, I own that I have found myself greatly embarrassed, and I could have wished to have this case re-argued, before the LORD CHANCELLOR and in the presence of the VICE CHANCELLOR; not finding that course approved of, I have given the subject the best attention in my power, and though, after what has passed, I must hold my opinion with great distrust, yet as it does appear to me that the opinion expressed in Massey v. Parker is not consistent with the decision in Anderson v. Anderson, and that the orders in Newton v. Reid, and the second case of Brown v. Pocock, are not warranted by the former practice and doctrines of the Court, I cannot

Tullett v. Armstrong, 1 Beav. 30-32.

refuse to the parties the statement of my opinion, such [31] as it is.

I have considered all the cases which I have been able to find on the subject, and I am unable to find any authority prior to those which I have mentioned, or any satisfactory principle for the proposition, that a gift to a woman for her separate use is nugatory, if she chances to be single at the time when the subject of the gift becomes vested in her; or for the proposition, that the restraint upon alienation of separate estate is nugatory, if not accompanied by a gift over upon an attempt to alienate.

To sanction either of these propositions would, as it appears to me, defeat the object and purpose which were contemplated by this Court, when it applied its principles of equity to the support of the separate estate of married women.

As this subject has given occasion to considerable discussion, and as a decision pronounced here cannot settle the question, which is of very great importance, I am desirous that the case should be brought under the consideration of a higher tribunal, without any unnecessary delay, and to afford every facility in my power for the correction of any error into which I may have fallen.

I therefore think it right to state, that it appears to me, as the result of the authorities, and of the constant practice of conveyancers, which great and eminent judges have considered to be no mean evidence of the law:

*That property given to a woman for her separate use, [*32] independent of any husband, may, under the authority

of this Court, be enjoyed by her during her coverture as her separate estate, although the property originally, or at any subsequent period or periods of time, became vested in her when discovert.

That, in respect of such separate estate, she is by this Court considered as a feme sole, although covert. Her faculties as such, and the nature and extent of them, are to be collected from the terms in which the gift is made to her, and will be supported by this Court for her protection.

The words "independent of a husband," whether expressed or implied in the terms of the gift, mean no more than that this Court will not permit the marital power of the husband to be.