Chap. XXXVII. Bankruptcy during prior life estate. Penal servitude Separate estate. 229; In re Parnham's Trusts, 46 L. J. Ch. 80; 13 Eq. 413; In the case of an immediate gift it appears the forfeiture will not take effect, where the bankruptcy is annulled within a year from the testator's death if there is no right to any payment till then. Lloyd v. Lloyd, L. R. 2 Eq. 722; Ancona v. Waddell, 10 Ch. D. 157. This principle would not apply if one of the terms of the annulment is that the dividends accruing up to that time should be paid to the assignee. In re Parnham's Trusts, 13 Eq. 413. In the case of an immediate specific bequest for life a clause of forfeiture does not operate if the bankruptcy is annulled before the day on which the first income is payable. White v. Chitty, L. R. 1 Eq. 372; see Metcalfe v. Metcalfe, 43 Ch. D. 633; (1891) 3 Ch. 1. These principles have no application where the freedom from bankruptcy is a condition precedent to the vesting. Cox v. Fonblanque, 6 Eq. 482; see Samuel v. Samuel, supra. Similarly, if the life interest given over on bankruptcy is subject to a prior life interest, the gift over takes effect on a bankruptcy during the life of the prior tenant for life. Sharp v. Cosserat, 20 B. 470; Muggeridge's Trust, Johns. 625. And a gift over upon bankruptcy will carry over an accrued share directed to go in the same manner as the original share, though not accruing till after bankruptcy. Dorsett v. Dorsett, 30 B. 250. A proviso for cesser if the beneficiary "should by his own act or by operation of law be deprived of the absolute personal enjoyment" of his interest does not take effect by the beneficiary being convicted of felony and sentenced to penal servitude. Re Dash; Darley v. King, 57 L. T. 219. 8. Under the Married Women's Property Act, 1882 (sect. 2), every woman married since the Act may hold as her separate property, and dispose of as if she were a feme sole, all real and personal property belonging to her at the time of her marriage or acquired or devolving upon her after marriage. And by sect. 5, every woman married before the Act may hold and dispose of in manner aforesaid, as her separate property, all real and personal property, the title to which accrues after the commencement of the Act. In the cases above mentioned a married woman may take and dispose of the legal estate in land, and a deed acknowledged is not necessary. In re Drummond and Davie's Contract, (1891) 1 Ch. 524. The Act does not affect the husband's right, on his wife's death, to her undisposed of personalty, nor destroy his tenancy by the curtesy in her undisposed of real estate. In re Lambert's Estate; Stanton v. Lambert, 39 Ch. D. 626; Surman v. Wharton, (1891) 1 Q. B. 491; Hope v. Hope, (1892) 2 Ch. 336. Chap. XXXVII. Before the Married Womeu's Property Act, 1882, it was Separate use. settled that the corpus as well as the income of real or personal estate might be given to the separate use of a married woman. Taylor v. Meads, 4 D. J. & S. 607; Cooper v. Macdonald, 7 · Ch. D. 288. The separate use may of course be so framed as to apply to the rents and profits only, and not to the corpus. Troutbeck v. Boughey, L. R. 2 Eq. 534. And in a limitation in a marriage settlement to A., “during her present coverture for her sole and separate use," it was held that the separate use only attached to income accruing during her then coverture. Shute v. Hogge, 58 L. T. 546. In cases not within the Married Women's Property Act, 1882, the effect of the separate use as regards the capital is to give the married woman a power of disposition. If the married woman does not exercise her power of disposition the separate use is exhausted, and upon her death the husband's rights revive. Therefore, in the case of land given to the separate use of a married woman who dies without making a disposition, the husband is entitled to an estate by the curtesy. Roberts v. Dixwell, 1 Atk. 607; Follett v. Tyrer, 14 Sim. 125; Appleton v. Rowley, 8 Eq. 139; Cooper v. Macdonald, 7 Ch. D. 288; Separate use before the Women's 1882. Effect of ente on curtesy. Chap. XXXVII. Chattels real to separate use. Chattels in possession. What words create a separate use. Disposal. Separate receipt. overruling Hearle v. Greenbank, 3 Atk. 675; and Moore v. Webster, 3 Eq. 267. The case of Bennett v. Davis, 2 P. W. 316, is sometimes cited as an authority, that an express declaration that curtsey is not to attach to lands given to the separate use of a married woman would be effectual where no disposition is made of the lands. The question did not arise in the case, as both husband and wife were alive. Chattels real belonging to the wife to her separate use vest in the husband, jure mariti, if she dies without disposing of them. Archer v. Lavender, I. R. 9 Eq. 220. And it seems chattels in possession belonging to the wife to her separate use, and not disposed of, belong to the husband without the necessity of taking out administration to the wife. Molony v. Kennedy, 10 Sim. 254; Bird v. Peagrum, 13 C. B. 639. In cases not within the Married Women's Property Act, 1882, the marital right will be held to be excluded only by a clear indication of intention to exclude it. The word "separate" is sufficient for this purpose, whether the legatee is married or not. Archer v. Rorke, 7 Ir. Eq. 478. On the other hand, such words as "own use," " absolute use,” or to pay to "her own proper hands," are not enough, whether the legatee is married or single, or whether trustees are interposed or not. Rycroft v. Christy, 3 B. 238; Tyler v. Luke, 2 R. & M. 183; Blacklow v. Laws, 2 Ha. 49; Taylor v. Stainton, 2 Jur. N. S. 634; Wills v. Sayer, 4 Mad. 409; Roberts v. Spicer, 5 Mad. 491; Beales v. Spencer, 2 Y. & C. C. 651. But if the legatee is married at the time and the legacy is directed to be at her own disposal, a separate use is created. Kirk v. Paulin, 7 Vin. Ab. 95, pl. 43; Prichard v. Ames, T. & R. 222; Bland v. Dawes, 17 Ch. D. 794. Directions that the receipt of a legatee, "notwithstanding coverture," and that her "sole and separate receipt" should be a good discharge, have been held to create a separate use. Cooper v. Wells, 11 Jur. N. S. 923; In re Molyneux's Estate, I. R. 6 Eq. 411. The same has been held where the legatee was married, and her receipt was declared to be a sufficient discharge. Lee v. Prieaux, 3 B. C. C. 381; Re Lorimer, 12 B. 521. And where a legacy was given, if husband and wife should not be living together, half to the husband and half to the wife absolutely, the wife took to her separate use. Shewell v. Dwarries, Johns. 172. So, too, a direction that the devisee is to receive the rents herself, whether married or single, creates a separate use. Goulder v. Camm, 1 D. F. & J. 146. Chap. XXXVII. Probably a gift for the maintenance and support of a woman Maintenance referred to by the testator as married would create a separate use. Darley v. Darley, 3 Atk. 399; Cape v. Cape, 2 Y. & C. Ex. 543; see Wardle v. Claxton, 9 Sim. 524. And a power given to trustees to apply income for the maintenance and support of a widow authorises payment of the income to her separate use. Austin v. Austin, 4 Ch. D. 233; see In re Peacock's Trusts, 10 Ch. D. 490. word "sole The word sole may in some cases be sufficient to create a Effect of the separate use, but prima facie it has no such technical meaning, in creating a and the burden of proof is upon those who assert it has. Lewis separate use. v. Mathews, L. R. 2 Eq. 177 ; Massey v. Rowen, I. R. 1 Eq. 110; L. R. 4 H. L. 288. In a marriage settlement where the whole object is to secure to the wife a separate estate, the word may have the force of separate. Ex parte Ray, 1 Mad. 199. But in a will where no such intention can be presumed, further indication is necessary. a. A gift to "A., the wife of B., for her sole use," creates a separate use. Inglefield v. Coghlan, 2 Coll. 247; Farrow v. Smith, W. N. 1877, 21; In re Amies' Estate; Milner v. Milner, W. N. 1880, 16; Bland v. Dawes, 17 Ch. D. 794. b. The same has been held where, though the legatee was not in the gift to her referred to as married, it appeared from other parts of the will that she was a married woman. Green v. Britten, 1 D. J. & S. 649; Hartford v. Power, I. R. 2 Eq. 204. But this is not the case if the legatee be the testator's own wife, so that she must be discovert when the will takes effect. T.W. L L Chap. XXXVII. Restraint upon anticipation. Gilbert v. Lewis, 1 D. J. & S. 38; Green v. Marsden, 1 Dr. 646. c. If the legatee is unmarried at the time, but the testator shows that he contemplates her marriage, and expressly wishes to guard against the claims of a future husband, the same effect will follow. Ex parte Killick, 3 M. D. & De G. 480; In re Tarsey's Trust, L. R. 1 Eq. 561; see Baker v. Ker, 11 L. R. Ir. 3. d. So, too, if a trust is created confined to the particular gift, and no other motive for it is discernible. Adamson v. Armitage, 19 Ves. 416. But the mere interposition of trustees will not give the word the force of separate if the trust is created for the general purposes of the will, and not confined to the particular gift. Massey v. Rowen, L. R. 4 H. L. 288. 9. A married woman may be restrained from anticipating the rents and profits of real estate and the income of personalty given to her separate use; a restraint upon anticipation may also be imposed upon corpus. A restraint upon anticipation imposed by the will of an English testator binds a legatee domiciled in a country where such a restraint is not recognised. Peillon v. Brooking, 25 B. 218. The restraint can only be imposed upon property belonging to the separate use. Baggett v. Meux, 1 Coll. 138; Stogdon v. Lee, (1891) 1 Q. B. 661. A restraint upon anticipation applicable to the rents of real estate devised to a married woman in tail does not prevent her from enlarging the estate tail to a fee with her husband's consent. Cooper v. Macdonald, 7 Ch. D. 289. The case would probably be the same if the restraint upon anticipation were expressly applied to the corpus. Cooper v. Macdonald, supra. A married woman entitled to real estate for life to her separate use without power of anticipation, with a testamentary power of disposition, may release her power under the Act for the abolition of fines and recoveries. Heath v. Wickham, 5 L. R. Ir. 285. |