her separate use under the Acts hereby repealed or otherwise, if this Act had not been passed." 1

Liability of Husband to be placed on List of Contributories in respect of Wife's Shares. It would appear that the Act does away with the liability of a husband to be himself placed on the list of contributories of a company in which his wife holds shares, if she was married after the Act.2 The English statute, like the Scottish, is not well drawn, and leaves in doubt many questions of great importance. It would appear that the married woman is not personally liable, not being subject to bankruptcy, except when carrying on a trade separately from her husband, and then only in respect of her separate estate.3 A married woman having separate estate, and an unsatisfied judgment against her, but not trading separately, is not subject to the bankruptcy laws.1 This being so, it would probably follow that property acquired by her after the dissolution of the marriage, is not liable for her contracts or torts entered into, or committed during the marriage.5 For this property never had the quality of "separate property," which always refers to property held by a married woman during coverture.

Liability of Husband and Wife respectively for the Wife's Contracts, Torts, or Breaches of Trust during the Marriage.

The husband's liability for the contracts of the wife as praeposita negotiis domesticis is the same in England as in Scotland.

Wife's liability in contract.-A wife may now render herself liable on any contract, a term which includes acceptance of a trust or of the office of executrix or administratrix. And "every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to,

1 § 13.

2 Ex parte Hatcher, 1879, 12 Ch.D. 284 (see Lindley on Company Law, 5th Ed., p. 809, and p. 42).

3 § 1 (5). See remarks of Jessel, M.R., in Robinson v. Pickering, 1881,

16 Ch.D., at p. 662.

4 Re Gardiner, ex parte Coulson, 1887, 20 Q.B.D. 249.

5 See Pike v. Fitzgibbon (C.A.), 1881, 17 Ch.D. 454.

6 45 & 46 Vict. c. 75, § 24.

ENGLISH WIFE'S CONTRACTS.

335

and to bind her separate property, unless the contrary be shown.1

A wife purchasing necessaries for the household is still presumed to do so as her husband's agent, and such contracts do not affect her separate estate unless it is proved that it was to her that credit was given.

But in contracts in which the presumption that she is her husband's agent does not arise, she is now taken to be contracting in respect of her separate estate, unless she can prove the contrary.

She is not personally bound, and she is not liable to imprisonment under the Debtors Act, 1869, § 5, for default in payment of a sum due under a judgment. But her capacity hinges on the question whether she had separate estate at the date of the contract.3

And it must be separate estate of such nature and amount as she might reasonably be supposed to have intended to bind. Every married woman possesses some separate estate. But if it is merely her wedding ring or her personal clothing, she will not be presumed to have contracted on the faith of these assets.1 There must not be an unreasonable disproportion between the value of the separate estate and the sum due on the contract. Thus where a wife possessed only £3 or £4 in hand, the fruit of her separate estate which was subject to a restraint on anticipation, it was held that she was not liable for a mortgage of £400 executed by her and her husband.5

It would appear that a married woman entitled to an income subject to a restraint on anticipation is not capable of contracting on the faith of future income. The debtor must show that she had such a reasonable amount in hand at the

1 § 1, sub-section 3.

2 Scott v. Morley, 1887, 20 Q.B.D. 120.

3 Palliser v. Gurney, 1887, 19 Q.B.D. 519; Stogdon v. Lee [1891], 1 Q.B. 661.

4 Leak v. Driffield, 1889, 24 Q.B.D. 98; see also Harrison v. H., 1888, 13 P.D. 180. A bill has been introduced in the present session to remedy the injustice of the existing law in this matter. It provides

that the contracts of a married woman shall not be invalid because she had no separate estate at the date of the contract, and shall bind her separate property subsequently acquired. But this will not render available to satisfy the debt property subject to the restraint on anticipation.

5 Braunstein v. Lewis, June 2, 1891, 7 Times' L.R. 566.

date of the contract that she might be supposed to be contracting with respect to this sum.1 Jewellery and dresses and furs worth £200 may be separate property to the effect of validating a contract.2 But not alimony. If the married woman had no free alienable estate of a nature and amount which makes it not unreasonable to assume it was with the intention to bind this property that she made the contract, the contract is bad. The fact that at the date of the action she has separate estate acquired subsequently to the alleged contract is immaterial. If the contract was good ab initio, this subsequently acquired property is liable.1 But if she had no separate property in the meaning of the Act at the time of the alleged contract, she had no contractual capacity and cannot be made liable because she has at the date of action acquired capacity in virtue of estate which has subsequently accrued to her.5

Torts. A husband by the law of England was always liable for his wife's torts committed during marriage. In Scotland, on the contrary, his liability for her delicts is only when he himself participated in them or they may be presumed to have been done by his authority. The liability of an English husband in this respect was not changed by the Act of 1882.6

Wife's liability for her own Torts.-By the old law a wife's torts did not bind her separate estate, and she could not be sued for them during the coverture without her husband. Since the Act her torts bind her separate estate, and she may be sued alone or with her husband."

Liability for Wife's Devastavits or breaches of Trust. -At common law a wife might be an executrix, administratrix, or trustee, but only by her husband's consent. If she committed any breach of trust or wrongfully wasted the assets, and was guilty of a "devastavit," her husband was liable.

LIABILITY OF WIFE TO ALIMENT-WILLS.

337

By the Act of 1882 she is enabled to accept any of these offices without the consent of her husband, and he is not liable for her breaches of trust or devastavits unless he has himself acted or intermeddled in the trust or administration.1

A married woman, who is now executrix, administratrix, or trustee, is liable to the extent of her separate estate for her devastavits, and may sue and be sued, and deal without her husband's concurrence with the trust estate, in all respects as a feme sole.2

Liability of Wife for maintenance of Husband and Children. A married woman having separate property is bound to maintain her husband to the extent of preventing him becoming a pauper.3

She is also bound to maintain her children and grandchildren, "provided always that nothing in this Act shall relieve her husband from any liability imposed upon him by law to maintain her children and grandchildren."4 This probably means that she is only liable, secundo loco, and that as long as her husband is able, he must maintain the children and grandchildren, and can claim no relief from her.

Wills of Married Women.-A married woman had formerly no testamentary capacity to dispose by will, either of her real or her personal estate, except when it was settled to her separate use. As to realty the Statute of Wills excepted wives, and the exception was preserved in the Wills Act.

Her will, purporting to dispose of her estate which was not settled to her separate use, was only good if her husband assented to it, and survived her. And he could revoke his consent after her death, but before probate. By the Act of 1882 a woman married before 1st January, 1883, can dispose by will of any property belonging to her at marriage, and a woman married before that date can dispose by will of any property, her title to which accrued thereafter.8

The scope of the Act is limited to "separate property," and cannot be extended to property which she acquires after the

coverture. So a will made by a married woman will not, unless republished, carry property acquired by her during widowhood.1

Rights of Succession. It is perhaps the most important distinction between the law of England and that of Scotland, that in England the surviving spouse and the children of the marriage have no rights of succession which cannot be defeated by will. The only exception is the right to curtesy, enjoyed by a husband who was married before 1st January, 1883, over lands the title to which accrued to his wife before that date.2

A husband possessing a large estate may bequeath the whole of it to a missionary society, leaving his widow and children destitute. It is only on the husband's dying intestate that the widow has any right in his estate.

1. Husband's rights of succession in Wife's estate on intestacy.

(a.) In Wife's personal Estate.-The husband is entitled to his wife's whole personal estate not disposed of by will. His right is sometimes said to rest on his being his wife's next and most lawful friend, in the words of the statute 31 Edw. III. A more probable ground is that the quality of separate property ceases at her death. Her estate not held for her separate use passed to him at marriage. If held for her separate use the Court of Equity protected her in the enjoyment of it during her life, and allowed her to dispose of it by will. But if she did not choose to exercise this power, the wall which the Court of Chancery had built between the wife's separate estate and the husband fell at her death, and he took her estate jure mariti.

The Act of 1882 has not affected the devolution of a wife's estate. If she dies intestate her personalty, now separate estate by operation of law, falls, as under the old law, to her husband. As her legal personal representative the husband is subject to the same liabilities as she would have 3 William's Executors, 8th Ed. i.

1 Willock v. Noble, 1875, 7 E. and Ir. App. 580; in re Cuno, Mansfield v. M., 1889, 43 Ch.D. 12.

2 See next section.

p. 416.

4 In re Lambert's Estate, 1888, 39 Ch.D. 626.