3. Separate property, paraphernalia, and other rights of the widow.† 3. Personal chattels inanimate in possession from which the executor or administrator is excluded in favor of the widow.

By reason of the provisions of the Married Women's Property Act, 1882, all gifts made to a married woman on or after January 1, 1883, become her separate property as if she were a feme sole. But inasmuch as questions may arise as to gifts to the wife, and separate property accruing to her before that date, it seems convenient to preserve in this edition the statement of the law on this subject in the shape in which it appeared in the earlier editions.

Marriage was formerly an absolute gift to the husband, as well of all the chattels of which the wife was actually and beneficially possessed at the time he married her (u), as also *of such as came to her during marriage, whether she survived him or not (x). And consequently, though his wife outlived him, they went to his executor, if he made a will, or to his administrator if he died intestate.

+ See American note at end of this Sub-section, p. *680.

(u) Co. Lit. 351, b. And there was no distinction in this respect between property to which the wife was entitled at equity, and property to which she was entitled at law: Osborn v. Morgan, 9 Hare, 432.

(x) These rules of law, however, had been considerably modified by the Married Women's Property Act (33 & 34 Vict. c. 93), which came into operation on the 9th day of August, 1870. By that act (which, save in respect of accrued rights and liabilities, is repealed by the Married Women's Property Act, 1882), any married woman became absolutely entitled, independent of her husband, to

a. Her earnings, made separately from her husband, and investments thereof (s. 1).

b. Government annuities and deposits in savings banks in her own name, whether before or after marriage (s. 2).

c. Sums invested in certain securities,

companies, or societies (ss. 3, 4, 5), in respect of which the married woman had obtained the statutory order required by the act.

d. Policies of insurance, and all benefits.
thereof, effected by her on her own
life or her husband's for her separate
use, if so expressed on the face of the
policy (s. 10).

e. Any property hers before marriage,
which her husband, by writing under
his hand, had agreed with her should
be her separate property after mar-
riage (s. 11). And if married on or
after the 9th of August, 1870, to-
f. Any personal property to which a
woman shall become entitled during
her marriage as next of kin or one of
the next of kin of an intestate, or any
sum not exceeding £200 to which she
shall after her marriage become en-
titled by deed or will (sect. 7). Rents
and profits of real property descend-
ing on any woman married after the
passing of the act as heiress or
coheiress of an intestate (sect. 8).
In Johnson r. Johnson, 35 C. D, 345,

But by conveying her property to trustees before marriage, the wife might, independently of the Married Women's Separate propProperty Acts, preserve it, in cases clear of fraud, erty.

separate from her husband, and those claiming from or through him, both at law and in equity for wherever the trust can be supported in equity, the trustee will be entitled at law (y). So that if personal property was bequeathed to, or settled upon, a married woman for her separate use, even without the precaution of the intervention of trustees, the wife's separate interest was protected in equity by the conversion of her husband into a trustee for her (z); and consequently, upon his death, the property did not form a part of the beneficial estate of his executors or administrators (a).

Law since M. W.
P. Act, 1882.

These rules will still govern all those cases which do not *fall within the Married Women's Property Act, 1882. The Married Women's Property Act, 1882 (45 & 46 Vict. Stat. 45 & 46 Vict. c. 75), by section 1, sub-s. (1), enacts that, 66 a married woman shall in accordance with the provisions of this

c. 75, 8. 1.

it was decided that the 8th section of the act does not enable a woman to pass by an unacknowledged deed the fee-simple of real estate descended upon her. The words "shall become entitled" in these sections of this act apply to a reversion falling in after marriage. Lane v. Oakes, 30 L. T. N. S. 726. Howard v. Bank of England, L. R., 19 Eq. 295. It is otherwise under the words of section 5 of the act of 1882. Reid v. Reid, 31 C. D. 402. See post, p. *662 (b). All the act does is to create a statutory separate use. It does not give a legal separate property, nor give, excepting under the 11th section as between husband and wife, a remedy to the wife except through a court of equity. Her separate earnings, therefore, are under this act equitable assets, distributable amongst all her creditors, and not legal assets out of which her executor is entitled to retain his own debt. Re Poole's Estate, 6 C. D. 739. This act, it will be observed, contains no section like section 1 of the act of 1882 affecting the ca

pacity of a married woman to acquire, hold, and dispose by will or otherwise of all real or personal property as if she were a feme sole.

(y) By Lord Mansfield, in Haselinton v. Gill, 3 T. R. 620.

(2) Parker v. Brooke, 9 Ves. 583. Rich v. Cockell, ibid. 375, in Lord Eldon's judgment. Where there is sufficient evidence to show an intention on the part of the wife that the husband shall employ the money for his own use, or for the family expenditure, as he might think proper, the assent of the wife to such application of the money puts an end to the trust for her separate use Gardner v. Gardner, 1 Giff. 126.

(a) Thus, according to the equitable doctrine of separate use, if the husband survives and the wife dies in actual possession of her separate property without having expressed her right of disposing of it by deed or will, the quality of separate property ceases at her death, and the fund belongs to the husband in his marital right, so that he

Act be capable of acquiring, holding, and disposing by will or otherwise of any real or personal property as her separate property in the same manner as if she were a feme sole without the intervention of any trustee."

1 S. 2.

By section 2 it is enacted, that "every woman who marries after the commencement of this Act" [January 1, 1883], "shall be entitled to have and to hold, as her separate property, and to dispose of, in manner aforesaid, all real and personal property which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, including any wages, earnings, money and property gained or acquired by her in any employment, trade, or occupation in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill."

And by section 5 (b), it is enacted that "every woman married before the commencement of this Act shall be entitled

S. 5.

to have and to hold, and to dispose of, in manner aforesaid, as her separate property, all real and personal *property, her title to which, whether vested or contingent, and whether in possession, reversion, or remainder, shall accrue after the commencement of this Act, including any wages, earnings, money, and property so gained or acquired by her as aforesaid."

And further, by section 19, it is enacted, "that nothing in this Act contained shall interfere with, or affect, any settlement,

S. 19.

or agreement for a settlement, made or to be made, whether before or after marriage, respecting the property of any mar

need not become her administrator in order to entitle himself to it: Molony v. Kennedy, 10 Sim. 254. See also Carne v. Brice, 7 M. & W. 183. Messenger v. Clarke, 5 Exch. 388. Bird v. Peagrum, 13 C. B. 639. Bourne v. Fosbrook, 18 C. B., N. S. 515. The appointment by a married woman of executors is not a disposition by her of her separate estate so as to deprive her husband of separate estate undisposed of by her will. Re Lambert's Estate, 39 C. D. 626.

(b) It is to be observed that in Reid v. Reid, 31 C. D. 402, following Re Tucker, 54 L. J. Ch. 874, and Re Adames Trusts, 54 L. J. Ch. 878, and

overruling Re Dixon, 54 L. J. Ch. 964, Baynton v. Collins, 27 C. D. 604, Thompson v. Curzon, 29 C. D. 177, it was decided that if a woman married before the commencement of the Married Women's Property Act, 1882, has before the commencement of the act acquired a title whether vested or contingent, and whether in reversion or remainder, to any property, such property is not made her separate estate by sect. 5 (1) of the act though it fall into possession after the commencement of the act. On the other hand, sect. 7 of the act of 1870, in which the words are "to which she shall become entitled" was held to include property to which the

ried woman, or shall interfere with, or render inoperative, any restriction against anticipation at present attached, or to be hereafter attached, to the enjoyment of any property or income by a woman under any settlement, agreement for a settlement, will, or other instrument but no restriction against anticipation contained in any settlement, or agreement for a settlement, of a woman's own property to be made or entered into by herself, shall have any validity against debts contracted by her before marriage, and no settlement, or agreement for a settlement, shall have any greater force or validity against creditors of such woman than a like settlement, or agreement for a settlement, made, or entered into, by a man would have against his creditors” (c). The scope of section 1 seems to be to declare the status of a married Application of woman, and not to deal with the kinds of property affected by the act, which latter are dealt with by sec

sect. 1.

tions 2 and 5. For it can hardly be that the statute intended to make all *property possessed, or acquired by, a married woman in her own right her separate property, irrespective of the date of her marriage and the date of the acquisition of that property: otherwise section 2, sub-s. 1, and section 5 would be unnecessary. And there seems to be no property to which section 1 can apply besides the subject-matter of sections 2 and 5. It cannot apply to property which is separate property by marriage settlement, because this is excluded from the operation of the act by section 19, nor to choses in action not reduced into possession, because the Married Women's Property Act does not affect devolution, nor to property which has become the separate property of the wife by virtue of the act of 1870, because the interest given to the wife under that act is merely a beneficial interest, and the act of 1882 does not amend the act of 1870, but repeals it, and provides that such repeal shall not affect any act done or right acquired while the act of 1870 was in force (cc).

married woman had a reversionary title before marriage but which fell into possession afterward. Lane v. Oakes, 30 L. T., N. S. 726. Howard v. Bank of England, L. R. 19 Eq. 295, 300.

(c) It may be observed that section 19 excludes from the operation of section 5 and the other sections, property the subject of any settlement, which would have bound it if the act had not passed, even though such property may accrue

to the wife after the commencement of the act. Re Stonor's Trusts, 24 C. D. 195. Re Whitaker, 34 C. D. 227. Hancock v. Hancock, 38 C. D. 78. See also Re Queade's Trusts, 54 L. J. Ch. 788, which seems to have been disapproved of by the Court of Appeal in Hancock v. Hancock, ubi sup.

(cc) This seems to be the view also taken in Re Cuno, 43 C. D. 12.