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It now becomes desirable to advert to the manner in which the common law rules relating to husband and wife were modified by the principles of equity, even before any of the statutes above referred to were made. Contracts between husband and wife, and grants by either party to the other, being sufficiently evidenced, were effectual in equity (d); trusts also in favour of the wife, whether created by the husband or by a stranger, were sustained in equity. And though by the old common law her property (with the qualifications already stated) vested in her husband in such manner that she could have no separate property, yet in contemplation of equity she had always a separate and independent estate in whatever property was secured to her through the medium of a trustee, provided the intention in that behalf of the grantor was distinctly declared (e). As it is a rule in equity that a trust shall never fail for want of a trustee, it followed that where the intention to give a married woman property for her separate use was sufficiently declared, such gift would be effectual, and the property would be her separate estate, even though the donor should have omitted to appoint any trustee. Consequently, if no trustee was appointed, the property vested at law in the husband ; and the court of equity, in such in a case, considered the husband himself as her trustee ($). It was this equitable principle of the wife's separate estate which formed the model of the legal separate estate created by the Married Women's Property Acts, 1870 and 1882.
As regards the property of a married woman which was not settled to her separate use, although the courts of equity followed the common law, so far as to allow the husband to claim it as his own ; yet these courts would not assist the husband's claim, where such assistance was
(d) Stanning v. Style (1734), 3 P. Wms. 334.
(e) Fonb. Tr. Eq. 94 ; In re' Tarsey's Trust (1866), L. R. 1 Eq.
Ca. 561 ; Massy v. Rowen (1869),
(f) Bennet v. Daris (1725), 2 P. Wms. 316.
necessary, except upon the condition of his making an adequate provision for her and her children out of the fund. Later, the woman herself was permitted to take proceedings as plaintiff in order to have this provision made out of any property over which a court of equity had jurisdiction (9). The wife's right to this provision was known as her equity to a settlement.
Equity would also allow the separate estate of a married woman to be conveyed or charged by her at her pleasure, and that either inter vivos or by will ; and such property was also subject in equity to her debts contracted on the faith of her separate estate (h). Gifts of property, however, to the separate use of a married woman, are often accompanied with a clause in restraint of anticipation, that is, a proviso against her making any assignment of her interest, by way of anticipation of the income during the coverture ; and such a proviso (notwithstanding the general rule invalidating restrictions on alienation) is held effectual in courts of equity (i). To such an extent is this so, that for her debts contracted on the faith of her separate estate, nay, even for her own active frauds (k), the property so restrained cannot apart from statute be made liable. The restraint continues only during coverture, though it will, unless put an end to by the woman while discovert, revive on a subsequent marriage (1). But property subject to a restraint on anticipation, will not, even if the woman becomes discovert, become liable to payment of debts contracted by her while covert (m). Apart from statute, the court had no power to lift off the restraint on anticipation,
(g) Elibank v. Montolieu (1799), 5 Ves. 737 ; 1 W. & T. L. C. 621; Re Briant (1888), 39 Ch. D. 471.
(h) Bac. Ab. Bar. & F. 507; Taylor v. Meads (1865), 34 L. J. Ch. 203 ; Pike v. Fitzgibbon (1881), 17 Ch. D. 454.
(i) Woodmeston v. Walker(1831), 2 Russ. & M. 197; Broun v.
Pocock (1831), ib. 210; Harnett v.
(X) Jackson v. Hobhouse (1817), 2 Mer. 483 ; Elis v. Johnson (1886), 31 Ch. D. 537.
(1) Tullett v. Armstrong (1839), 1 Beav. 1.
(m) Barnett v. Houard (1900), 2 Q. B. 784.
even when it was for the woman's own clear benefit to do so (n); but by the Conveyancing Act, 1881, s. 39, the court is now enabled, with her consent, to remove the restraint when it is for the wife's benefit that it should be removed (o). By sect. 45 of the Trustee Act, 1893 (p), re-enacting a similar provision of the Trustee Act, 1888 (9), the court may now impound the interest of a married woman restrained from anticipation in a trust fund by way of indemnity to a trustee who has committed a breach of trust at her instigation or request, or with her consent in writing. By the Married Women's Property Act, 1893, s. 2, the costs of litigation instituted by her or on her behalf may now also be ordered to be paid out of such property (r).
Before concluding the subject of married women's property, it will be desirable in this place) to consider, although briefly, the subject of marriage settlements, and the subject of separation deeds between husband and wife.
1.–With respect to MARRIAGE SETTLEMENTS.—When a marriage is contemplated, it is a common practice for the intended husband to make a settlement for the benefit of the intended wife. Where the husband is entitled to real estate, this provision usually takes the form of a small rentcharge, called pin money, which is to be paid to the wife during her husband's life, and is intended for her private purposes, such as dress, and a larger rentcharge called a jointure, which is to be paid to her after his death, in the event of her surviving him. A jointure is usually expressed to be in lieu of dower and freebench. These rentcharges were formerly secured by limitations of the husband's real estates to special trustees for long terms of years ; but since the Conveyancing Act, 1881 (s), this has become unnecessary. If there is hereditary rank or a title to be supported, or if it is in contemplation to found a family, the settlement generally contains also provisions for entailing the bulk of the landed estate on the issue of the marriage, by limiting it to the husband for life, and after his death, to the first and other sons successively in tail male, and then to the daughters in tail. On the intended wife's part, if she possesses property of her own, and the amount is large, a settlement thereof is frequently made, providing sufficiently for the wife, and conferring beneficial interests therein on the husband, and providing for the younger children of the marriage, and (in the case of the failure of issue) providing for the return of the property in whole or in part to the wife herself or to her relations, subject always to the estates or interests which may have taken effect.
in) Robinson v. Wheelwright (1856), 6 D. M. & G. 535.
(0) See Harrison v. Harrison (1889), 40 Ch. D. 418.
(p) 56 & 57 Vict. c. 53.
(r) Hood Burrs v. Cathcart, [1894) 3 Ch. 376; Hood Barrs v. Cathcart,  1 Q. B. 873, and see Hood Barre v. Heriot,  A. C. 177.
A marriage settlement may be made, either in contemplation of the marriage, or after the marriage has taken place. An ante-nuptial settlement is made on what the law deems a valuable consideration, viz., the future marriage, so that such a settlement cannot, in the absence of fraud, be impeached even by those to whom the husband is indebted at the time he makes it (t), but is binding and valid against all the world (u). A post-nuptial settlement, on the other hand, is in general considered voluntary, that is, for no valuable consideration ; and, if it relate to lands or tenements, it used to be void, by the effect of the statute 27 Eliz. (1584) c. 4, as against subsequent purchasers of the same lands for valuable consideration, whether they purchased with notice of the settlement or not, the husband being allowed to defeat in this way his own previous
(8) 44 & 45 Vict. c. 41, s. 44. See Elphinstone, Introductim to Conreyancing, pp. 364, 373.
(0) Spirett v. Willours (1868),
L. R. 4 Ch. 407; Kent v. Riley (1872), 14 Eq. 190.
(u) Broun 1. Jones (1744),
Atk. 190; Campion v. Cotton (1810), 17 Ves. 272.
gift (x) ; and a mortgagee and a lessee (y) were esteemed purchasers within the meaning of this Act. But now, by the Voluntary Conveyances Act, 1893 (z), a voluntary settlement of lands will not be impeachable, merely on the ground of its voluntary character.
A post-nuptial settlement, whether relating to real or personal property, still is, however, by the effect of the statute 13 Eliz. c. 5, void as against all creditors to whom the husband was indebted at the time of the settlement, without possessing adequate means of payment : and also as against his subsequent creditors, if he made it with the fraudulent view of defeating their future claims (a); but, subject to the provisions of the Bankruptcy Act, 1883 (6), as against all other persons, such a settlement, though voluntary in its nature, is effectual. There are instances, however, in which even a post-nuptial settlement is deemed to be not voluntary, but valid as against all the world ; as in the case where it is executed either in pursuance of a written agreement to that effect entered into before the marriage (c), or as the condition of the husband's obtaining possession of the property to which the wife is equitably entitled (d), or in consideration of an additional portion paid to him by her friends after the marriage (e).
2. With respect to SEPARATION DEEDS.-Although the law looks with the greatest disfavour on any agreement, the object of which is to relieve the parties from the duties of the conjugal relation, yet where the husband and wife have actually come to a resolution to live apart, the courts
(x) Dor d. Otley V. Manning (6) 46 & 47 Vict. c. 52; see (1807), 9 East, 59; Doe d. New supra, bk. ii. pt. ii. ch. vi. man v. Rushum (1852), 17 Q. B. (c) Doe v. Rowe (1838), 4 Bing. 724.
N. C. 737; Brown v. Jones (1744), (y) Cracknall v. Janson (1879), 1 Atk. 190. 11 Ch. Div. 1 ; In re Walhampton (d) Wheeler v. Caryl (1751), Estate (1884), 26 Ch. Div. 391. Amb. 121. (3) 56 & 57 Vict. c. 21.
(e) Russell v. Hammond (1738), (a) Stileman v. Ashdown (1742), 1 Atk. 13. 2 Atk. 481; Freeman v. Pope (1870), L. R. 5 Ch. 5:38.