Tullett v. Armstrong, 1 Beav. 32, 33.

used in contravention of the enjoyment of the property, according to the terms of the gift.

If the gift be made for her sole and separate use, without more, she has, during the coverture, an alienable estate independent of her husband.

If the gift be made for her sole and separate use, without power to alienate, she has, during the coverture, the present enjoyment of an unalienable estate, independent of her husband.

In either of these cases she has when discovert a power of alienation: the restraint is annexed to the separate estate only, and the separate estate has its existence only during coverture;

whilst the woman is discovert, the separate estate, whether [* 33] modified by * restraint or not, is suspended, and has no operation, though it is capable of arising upon the happening of a marriage.

The restriction cannot be considered distinctly from the separate estate of which it is only a modification; to say that the restriction exists, is saying no more than that the separate estate is so modified; the donor, in giving the woman when married some of the faculties of a feme sole, has withheld the power of alienation; under the terms of the gift, and by the aid of this Court, the woman is a feme sole, as to the present enjoyment of the property, but no further; measuring her faculty by the terms of the gift, she is not a feme sole as to the disposition of her property in anticipation of her intended provision. If there be no separate estate, there can be no such restriction as that which is now under consideration. The separate estate may, and often does exist without the restriction, but the restriction has no independent existence; when found, it is as a modification of the separate estate, and inseparable from it.

And applying these principles to the present case, I am of opinion, that as to those estates, which by the wills of the testator, Nathaniel Bradford, and the testatrix, Ann Bradford, were given to the defendant, Mrs. Armstrong, for her separate use, without power of alienation, the plaintiff has acquired no right under his securities. As to the estates given by the will of Nathaniel Bradford to Mrs. Armstrong for her separate use, without any clause to restrain alienation, I think the plaintiff is entitled to the relief he prays, and the accounts and inquiries must be directed accordingly.

Tullett v. Armstrong, 1 Beav. 33, 4 My. & Cr. 392, 393.

The case having been argued on appeal before Lord COTTENHAM,

as LORD CHANCELLOR, he on 22d January, 1840, gave judgment as follows:

The LORD CHANCELLOR [4 My. & Cr. 392]:

--

The question raised in this case is as to the clause against anticipation; but I agree with the MASTER OF THE ROLLS in thinking, not only that it necessarily involves the question of separate estate, which has been the subject of much discussion in the profession, but that these two questions are identical as to the principle which must regulate the decision upon them; by which I mean, that if the case be of separate estate without power of anticipation, it must exist with that qualification or fetter, if it exist at all, and that there is no principle upon which it can be held that the separate estate operates during a coverture subsequent to the gift, but that the provision against anticipation, with which the gift was qualified, does not. It is obvious that such a rule would, *in practice, defeat the [* 393] intention of the donor, and in many cases render the provision which he had made for the protection of the object of his bounty the means and instrument of depriving her of it.

When once it was established that the separate estate of a married woman was to be so far enjoyed by her as a feme sole, as to bring with it all the incidents of property, and that she might therefore dispose of it as a feme sole might do, it was found that, to secure to her the desired protection against the marital rights, it was necessary to qualify and fetter the gift of the separate estate by prohibiting anticipation. The power to do this was established by authority, not now to be questioned, but which could only have been founded upon the power of this Court to model and qualify an interest in property which it had itself created, without regard to those rules which the law has established for regulating the enjoyment of property in other cases. If any rule, therefore, were now to be adopted, by which the separate estate should, in any cases, be divested of the protection of the clause against anticipation, it would, in such cases, defeat the object of the power so assumed.

A feme covert, with separate estate, not protected by a clause against anticipation, is, in most cases, in a less secure situation than if the property had been held for her simply upon trust. the latter case, this Court, with the assistance of her trustees, VOL. III. 15

In

Tullett v. Armstrong, 4 My. & Cr. 393–395.

can effectually protect her: in the other, her sole dependence must be upon her husband not exercising that influence or control, which, if exercised, would, in all probability, procure the destruction of her separate estate. In the case of a gift of

separate estate with a clause against anticipation, the [*394] * author of the gift supposes that he has effectually protected the wife against such influence or control. Upon what principle can it be that this Court should subject her to it, and by so doing defeat his purpose and completely alter the character and security of his gift? The separate estate and the prohibition of anticipation are equally creatures of equity, and equally inconsistent with the ordinary rules of property. The one is only a restriction and qualification of the other. The two must stand or fall together. Indeed, I do not find any allusion, in any case, to the possibility of the one surviving the other, until after the discussion as to the continuing of the separate estate through a subsequent coverture had commenced. In the consideration of the cases upon which I am about to enter, I shall assume that there is no ground whatever for the attempt which has been made in argument to separate the two. Every authority, therefore, which bears upon the one, will bear equally upon the other.

In a case of so much importance, and which has excited so much interest, I have thought it my duty not only to consider every case which has been referred to in argument, but to endeavour to obtain all other information which was within my reach. I will first examine the cases which are supposed to support the proposition, that the absolute interest of the woman which she unquestionably possesses in property given for her separate use, though with a prohibition against anticipation, up to the moment of her subsequent marriage, becomes subject to all the qualifications and restrictions of the gift, upon such marriage. If Sir Edward Turner's case be correctly stated in Tudor v. Samyne, 2 Vern. 270, which differs from the report in [* 395] *1 Vern. 7, and if Tudor v. Samyne, be itself accurately reported, they would be instances of property settled to the separate use of a woman being alienable by an after-taken husband. I do not, however, think that either is of any value upon the present question. They are of too early a date; the accuracy of the report upon this subject cannot be depended

Tullett v. Armstrong, 4 My. & Cr. 395, 396.

upon, and the point was not raised or argued, and cannot be said to have been decided.

Although no cases appear to have occurred until very late times in which the question was directly raised, yet decisions took place which necessarily led to the consideration of it. Brandon v. Robinson, 18 Ves. 429; 1 Rose, 197; 11 R. R. 226, and other cases having brought to view the rule that all restrictions inconsistent with the nature of the estate given are void in gifts to men, the case of similar gifts to females soon occurred. Sir WILLIAM GRANT, in Jones v. Salter, 2 R. & M. 208, and Sir THOMAS PLUMER, in Barton v. Briscoe, Jac. 603, held that property settled upon a married woman with a clause against anticipation, was, upon her becoming discovert by the death of her husband, absolutely disposable by her. Woodmeston v. Walker, 2 R. & M. 197, proceeded upon the same principle; but it has a more imperfect application to the present case, because Sir JOHN LEACH had refused to consider a single woman to whom an annuity had been given for her separate use, with a prohibition against anticipation, as having the dominion over the fund, because the provision contemplated a future marriage. Against this judgment, Sir EDWARD SUGDEN, upon an appeal to Lord BROUGHAM, argued, " that it might be said, that as the words of the proviso point to a future coverture, the restriction would attach upon the plaintiff the instant [* 396] she married, and that the Court looking to that contingency would protect the executors in their refusal to transfer the fund, but that for such a proposition no authority would be adduced that the language of the judgment in Barton v. Briscoe was directly opposed to it, and that the existence of a desultory and shifting fetter of that description was repugnant to legal principle, and would be attended with much practical inconvenience." Against this, the practice of conveyancers and the necessity of affording to parents the means of securing property for their daughters in the event of their subsequent marriage was urged in vain. Lord BROUGHAM declared the plaintiff entitled to an absolute interest in the property, after thus expressing himself: "It was said that the woman might have the property at her own disposal till she married, and that when that event happened, a sort of postponed fetter might attach, a fetter which would fall off upon her husband's death, and be again

*

Tullett v. Armstrong, 4 My. & Cr. 396, 397.

imposed should she enter into a second marriage. That would be a strange and anomalous species of estate; nor is it very easy to conceive by what process or contrivance it could be effectually created, unless perhaps by annexing to the gift a limitation over to trustees, to preserve it for the woman during the successive covertures." The decision in that case only confirmed the judgment of Sir THOMAS PLUMER in Barton v. Briscoe, because the party claiming the fund was discovert; but the observations of Lord BROUGHAM assume that a marriage would not bring what he calls the postponed fetter into operation, except possibly by the means he suggests. This case was decided in August, 1831. It does not appear from the report that Newton v. Reid, 4 Sim. 141, was cited, although it had been decided in December, [397] 1830, which may be accounted for by what is stated

in Brown v. Pocock, 2 Russ. & Mylne, 210; see p. 212, that Newton v. Reid had been then recently reported. In that case a father had directed his trustees to purchase an annuity for his daughter for her separate use, with a prohibition against anticipation. The daughter was unmarried at her father's death; but having afterwards married, she and her husband joined in assigning the fund to creditors of his, and both joined in a petition for the transfer of the fund according to the assignment; which the VICE CHANCELLOR ordered, saying, the annuity not being given over upon alienation, the restrictions are void. This order was made without argument; and it would not be reasonable, therefore, to consider it as an expression of the deliberate opinion of the Judge if it had not afterwards been recognized and approved.

In Brown v. Pocock, 2 Russ. & Mylne, 210; and 2 Mylne & Keen, 189, Sir JOHN LEACH and Lord BROUGHAM took the same view of the question they had respectively done in Woodmeston v. Walker, the case being the same; and Lord BROUGHAM commented upon Newton v. Reid, saying it was a stronger case than that before him, but did not express any disapprobation of it. The second case of Brown v. Pocock, 5 Sim. 663, was the same as Newton v. Reid, the assignment having been after the marriage.

I now come to the case of Massey v. Parker, 2 Mylne & Keen, 174, which excited an interest to which it was very little entitled, either from the authority of the Judge or any novelty in the doctrine. What was said upon this subject in that case