(E) Separate property acquired by desertion,

&c.

Introdn. E. By desertion, or a separation under a deed or otherwise. A married woman deserted by her husband holds her property acquired in business, with or without his acquiescence, to her separate use (n); and money is paid out of court to a deserted wife as if she were sole (o). The savings of a wife living apart by consent on an allowance voluntarily made by the husband are held to her separate use (p). And by 20 & 21 Vict. c. 85, ss. 21, 25 (q), a wife who has obtained a protection order or a judicial separation holds all property which she may acquire or which may come to or devolve upon her after the order or sentence as a feme sole. But, of course, no such order could include property accruing to her husband on marriage, though unclaimed by him (r). The savings of the wife of a lunatic living apart from him, out of an allowance made by an order in lunacy, are her separate property (s).

(F) Acquired

Married

F. The Married Women's Property Acts have under the created various new modes of acquiring separate Women's property. Any wages, earnings, money or property Property gained or acquired by any married woman in any employment, occupation or trade, in which she is

Acts.

(n) Cecil v. Juxon, 1 Atk. 278.

(0) Re Pope's Trusts, 21 W. R. 646; W. N. (73) 79.

(p) Brooke v. Brooke, 25 Bea. 342; Messenger v. Clarke,

5 Exch. 388.

(g) App. p. 153.

(r) Kingsman v. Kingsman, 6 Q. B. D. 122.

(s) In the goods of Tharp, 3 P. D. 76.

engaged or which she carries on separately from Introdn. her husband, or by the exercise of any literary, artistic or scientific skill, have been her separate property since the Act of 1870 (t), and a married woman can insure her own or her husband's life to her separate use under both Acts (u). Property coming during marriage to a woman married since the Act of 1870, and while that Act was in force, as the next of kin of an intestate, whatever its nature or value (x), and any sum of money not exceeding £200 given to such woman during the same period by any deed or will (y), and the rents and profits of any freehold, copyhold or customary-hold property, which descended upon such woman during the same period as heiress or co-heiress of an intestate, belong to her for her separate use (2). Property of whatever kind, the title to which accrued since the Act of 1882, to a woman married before the Act, is her separate property (a). The property of women married since the Act of 1882, whether belonging to them at the time of marriage, or ac

(t) Act of 1870, sec. 1, App. p. 141; Act of 1882, secs. 2, 5, and see notes to sec. 2, p. 66, and sec. 5, p. 73.

(u) Act of 1870, sec. 10, App. p. 147; Act of 1882, sec. 11, and see notes to sec. 11, p. 93.

(x) King v. Voss, 13 C. D. 504; Act of 1870, sec. 7, App.

Introdn. quired by or devolving upon them afterwards, is held by them as their separate property (6).

The legal

estate in separate real estate,

the Acts.

Act of

1870.

The separate property created by the Acts of 1870 and 1882 is held under the same rules of

created by equity as separate property created independently of those Acts, except where the rules of equity have been modified by the Acts themselves. It is a question which has not been decided, whether, Under the under the Act of 1870, the legal estate in real property could vest in the married woman for her separate use (c). If she invested savings in real estate under section 1, the real estate would be deemed and taken to be "property held and settled to her separate use," and it is submitted that she could only convey the legal fee by means of an acknowledgment under 3 & 4 Will. IV. c. 74 (d). It is conceivable, however, that a distinction might be drawn between the language of section 1 and that of section 8 of the Act of 1870 (e); and that a married woman might be held capable of disposing of the legal estate in property descending to her under section 8 as her separate property without acknowledgment. It is certain that, outside the Acts of

(b) Act of 1882, sec. 2; see note (a) p. 66.

(c) As to personal estate, see note (y), p. 18.

(d) Hall v. Waterhouse, 5 Giff. 64. The Fines and Re

coveries Act has now been amended by the Conveyancing Act, 1882; 45 & 46 Vict. c. 39, s. 7, see App. p. 158.

(e) Apr. pp. 141, 146.

Act of

1882.

1870 and 1882, the separate use only attaches to Introdn. the equitable estate, and the legal estate remains in some person as a trustee for the married woman. If there is no other trustee the legal ownership vests in her husband (ƒ). But it is submitted that under Under the the Act of 1882 (g), the legal estate vests directly in the married woman, and that the words "without the intervention of any trustee" in section 1 subsection (1), will prevent her husband taking any interest, at law or in equity, in the property coming to her under the Act. It will be a question open to some doubt whether he will, or will not, take the legal estate in real property, conveyed since the Act, to the separate use of a married woman without a trustee, and whether the married woman can in such a case dispose of the legal estate without acknowledgment (h). But the more reasonable construction would be to put all her separate property, of which the legal estate was not vested in trustees, upon the same basis, and to hold that she takes the legal estate or ownership to her separate use, whether the property belongs to her at the time of marriage or devolves upon her afterwards, under sections 2 or 5, or is conveyed to her absolutely, or to her separate use. In case it is

(f) Bennet v. Davis, 2P. Wms. 316; Rich v. Cockell, 9 Ves. 369, 375; Parker v. Brooke, 9 Ves. 583.

(y) Act of 1882, sec. 1, sub-s.

(1), secs. 2, 5, pp. 42, 66, 73.

(h) See further on this question, note (a) to sec. 1, sub-s. (1), p. 43, and note (a) to sec. 19, p. 126.

Introdn. so held, the married woman will be able to dispose of all her separate property without acknowledgment, and her husband will no longer have any interest in the property at law (i). As to the new species of property thus created by the Act, a married woman will be treated as a feme sole both at law and in equity; but it is presumed that the rules of equity as to separate property will be held to apply to it. The Act does not affect property held by trustees for the separate use of the married woman (k), nor property acquired before the commencement of the Act. So that there will be a large amount of separate property which by settlement or otherwise will remain outside the Act in this respect, and of which only the equitable estate will be vested in the married woman. Outside the Acts a married woman may in equity acquire, hold, and dispose of, by will or inter vivos, real estate if it is settled to her separate use (1). She cannot deal with the legal estate (m); but if there is no trustee, her husband or her heir, according as they take the legal interest, hold it in trust for her or her assigns, that is to say, her husband during

Real estate

held by a

married

woman in equity.

(i) Sec. 1, sub-s. (1), and secs. 2 and 5 of the Act of 1882; see notes to Act, pp. 66, 75.

(k) Act of 1882, sec. 19, note (a), p. 126.

(1) Taylor v. Meads, 4 D. J. & S. 597; Hall v. Waterhouse, 5 Gif. 64; Pride v. Bubb, 7 Ch.

64; Troutbeck v. Boughey, L. R. 2 Eq. 534; Cooper v. Macdonald, 7 C. D. 288.

(m) Wright v. Ld. Cadogan, 2 Ed. 239; Churchill v. Dibbey, 9 Sim. 447 n.; George v. Jew, Amb. 627.