duration of the coverture (k). And if the wife is entitled to stock in possession under a will, and the executors, by direction of the husband, transfer it to trustees to the separate use of the wife, and the husband afterwards becomes bankrupt, such transfer will not, in favour of the assignees, be held a reduction into possession by the husband (7). The wife is entitled by survivorship against the mortgagee, although the agreement for a loan was made before marriage, and although the mortgagee has obtained an order for payment out of the funds in Court between the order nisi and order absolute for dissolution of the marriage (m). Chap. XX. § 2 (iv). to settlement A mortgage by a husband of a chose in action belonging to Wife's equity his wife is not only liable to be defeated in the event of her in choses in survivorship, but is also subject to her equity to a settle- action. ment (n). reversionary By the statute, commonly called "Malins' Act," power has Future and been given to married women and their husbands to deal with interest in their future and reversionary interests in personal estate. By personalty. that statute (0) it is enacted that— interests in estate, and "After the 31st of December, 1857, it shall be lawful for every Married married woman by deed to dispose of every future or reversionary women may interest, whether vested or contingent, of such married woman, or dispose of her husband in her right, in any personal estate whatsoever, to reversionary which she shall be entitled under any instrument made after the personal 31st of December, 1857 (except such a settlement as thereafter estate, and mentioned), and also to release or extinguish any power which may release powers be vested in, or limited or reserved to, her in regard to any such over such personal estate, as fully and effectually as she could do if she also their were a feme sole, and also to release and extinguish her right or right to a equity to a settlement out of any personal estate, to which she, or settlement her husband in her right, may be entitled in possession, under out of such estate in possuch instrument as aforesaid; save and except that no such disposisession. tion, release, or extinguishment shall be valid, unless the husband concur in the deed by which the same shall be effected, nor unless the deed be acknowledged by her as thereinafter directed. Provided always that nothing in the Act contained shall extend to any reversionary interest, to which she shall become entitled by virtue of any deed, will, or instrument, by which she shall be restrained from alienating or affecting the same.” any By sect. 2, every deed under the Act must be acknowledged Deeds to be in månner required by 3 & 4 Will. IV. c. 74, as modified by the (k) Stiffe v. Everitt, 1 My. & Cr. 37. (1) Ryland v. Smith, 1 My. & Cr. 53. (m) Prole v. Soady, L. R. 3 Ch. 220. (n) See Reid v. Reid, 31 Ch. D. 402, C. A. at p. 407. (o) 20 & 21 Viot. c. 57, s. 1. acknow- § 2 (iv). Chap. XX. Conveyancing Act, 1882 (p), for disposing of interests in land in England or Wales, or by 4 & 5 Will. IV. c. 92, as to Ireland; and the provisions of the Acts of Will. IV. for dispensing with the concurrence of husbands, are applicable to dispositions of interests in personal estate under this Act (q). The powers of disposition given by this Act not to interfere with any other powers. Act not to extend to settlements Sect. 3. "The powers of disposition given to a married woman by this Act, shall not interfere with any power which, independently of this Act, may be vested in, or limited, or reserved to her, so as to prevent her from exercising such power in any case, except so far as by any disposition made by her under this Act, she may be prevented from doing so in consequence of such power having been suspended or extinguished by such disposition." Sect. 4. "The powers of disposition hereby given to a married woman shall not enable her to dispose of any interest in personal estate settled upon her by any settlement, or agreement for a on marriage. settlement, made on the occasion of her marriage." Effect of disposition. What property passes by the disposition. A disposition under this Act is that of the married woman, not of her husband, and accordingly the concurrence of the husband does not let in any claims against him. So, where a reversionary legacy was given to a married woman, whose husband was indebted to the testator, a deed, duly acknowledged under the Act, deprived the executors of any right of retainer of the debt (r). A married woman can, under this statute, dispose only of property coming to her under an "instrument," and therefore not of a reversionary interest derived under an intestacy. The instrument must not have been made on or before the 31st of December, 1857; so, where a married woman claimed under an appointment executed since the Act came into operation, in exercise of a power created before the Act, it was held that the instrument under which she was entitled, was the instrument creating the power, not the instrument executing it (s). And where a reversionary interest in personalty was given to a married woman by will made before the commencement of the Act, and an additional legacy was given to her by a codicil made after that date, it was held that the "instrument" under which she took the reversionary interest was the will (†). (p) 45 & 46 Vict. c. 39. (a) See Exp. Thompson, W. N. (1884) 28. (r) Re Batchelor, Sloper v. Oliver, L. R. 16 Eq. 481. See Re Jakeman's Trusts, 23 Ch. D. 344. (s) Re Butler's Trust, Ir. Rep. 3 Eq. 138. See Clarke v. Green, 2 H. & M. 474. (t) Re Elcom, Layborn v. Grover Wright, (1894) 1 Ch. 303, C. A. Chap. XX. § 2 (iv). The words "any personal estate whatsoever," in sect. 1 of the Act, include a legal chose in action, such as a policy of life assurance effected in a married woman's own name, and are not Policy of to be confined to equitable choses in action, such as a legacy or assurance. other money or securities held in trust for her (u). possession. The statutory power of disposition given by this Act applies Choses in only to future and reversionary interests in personalty, and does action in not enable a married woman absolutely to dispose of a chose in action to which she is entitled in possession, but the Act seems indirectly to enable a husband and wife together to deal with such property, by empowering her to release her equity to a settlement out of it, so as to entitle the husband to reduce it into possession by requiring it to be transferred to him, thus excluding the wife's claim by survivorship (a). under powers, The observance of the formalities prescribed by this Act is by Appointments sect. 3 rendered unnecessary in the case of a disposition by a and separate married woman in exercise of a power conferred on her by a property. settlement or will, or by a statute; and is manifestly unnecessary in the case of dispositions of property which is made the separate property of a married woman by statute (y), nor does the Act apparently apply to future and reversionary interests in personalty which, if in possession, could be assignable by her without the husband's concurrence. settlements. An agreement in contemplation of marriage dealing with a Exception of reversionary interest, is within the proviso in sect. 4; a contingent interest under the agreement was held not to be a resulting trust, but to be an interest which accrued under the settlement (*). domicile. Where a married woman is domiciled abroad, the efficacy of Foreign a disposition of her interest in personal property depends on the law of her domicile (a). the doctrine. v.-Wife's Equity to a Settlement. This rule though Statement of rendered almost obsolete by the Act of 1882, may be briefly noticed here. The husband's power to mortgage his wife's property and his interest therein is, as a general rule, subject to (u) Witherby v. Rackham, 39 W. R. 363. (x) See Lewin on Trusts (8th ed.), p. 23. (y) See 33 & 34 Vict. c. 93, and 45 & 46 Vict. c. 75, post, pp. 343 and (z) Clarke v. Green, 2 H. & M: 474. Chap. XX. her equity to a settlement. The rule is thus stated by a learned § 2 (v). writer:-"Wherever the husband is obliged to seek the aid of equity in order to get the benefit of his wife's property, the assistance of the Court is withheld until a provision for the wife is secured, if she requires it" (5). And the rule, of course, applies equally to assignees of the husband, who cannot stand in a better position than their assignor. This rule, however, will not apply where the husband or his assignees can render the property available without resorting to the aid of equity (c). With regard to this equity, the following propositions may be here stated: 1. As against a general assignee it attaches on the wife's equitable life interest, in real and personal estate (d), to the same extent as on her capital (e), but no settlement will be made of it, if the husband is living with and maintaining his wife out of it though he may be in embarrassed circumstances (ƒ). 2. It attaches on a legacy charged on land (g). 3. It attaches on an equitable interest in leaseholds (h). 4. The equity of a married woman attaches whether the property vests in her before or after marriage (i); and it is enforceable as soon as the property of which she claims the equity is actually in possession, although not actually distributable (k). 5. The wife may herself obtain this equity in a suit by her against her husband, or his assignees, and not merely when defendant (1). 6. The equity for a settlement is effectual against a mortgagee, as well as against the trustee in bankruptcy of the husband (m). 7. The equity does not attach where she is seised of the inheritance (n). (b) Macqueen, Husband and Wife, 2nd ed. p. 71, cited with approval by Jessel, M. R., in Ward v. Ward, 14 Ch. D. 506, at p. 508. And see Lady Elibank v. Montolieu, 5 Ves. 737; S. C., 1 White & Tudor, L. C. (7th ed.) 621. (c) Gleaves v. Paine, 1 De G. J. & S. 87, at p. 94. (d) Tidd v. Lister, 3 De G. M. & G. 857; Wilkinson v. Charlesworth, 10 Beav. 326; Barnes v. Robinson, 9 Jur. N. S. 245. (e) Taunton v. Morris, 11 Ch. D. 779, C. A. (f) Vaughan v. Buck, 13 Sim. 404. (g) Duncombe v. Greenacre, 2 De G. F. & J. 509. (h) Hanson v. Keating, 4 Ha. 1. (i) Barrow v. Barrow, 18 Beav. 529. (k) Re Robinson's Settled Estate, 12 Ch. D. 188. (1) Lady Elibank v. Montolieu, 5 Ves. 737; Gardner v. Marshall, 14 Sim. 475; Duncombe v. Greenacre, supra; Giacommetti v. Prodgers, L. R. 8 Ch. 338: Ruffles v. Alston, L. R. 19 Eq. 539. (m) Macaulay v. Philips, 4 Ves. 15; Scott v. Spashett, 3 Mac. & G. 599, at p. 603. (n) See cases cited, ante, p. 328, 8. But where the wife has a legal, and not an equitable, estate, an outstanding term gives her the same privilege, as to this right to a settlement, as if her estate were equitable (o). 9. Where a husband mortgages leaseholds which he possesses in right of his wife, and the mortgagee, having the legal interest, brings an action to foreclose, the wife has no equity to a settlement (p). 10. The equity does not attach against the assignee for value of her equitable life interest in real or personal estate, whether it be immediate or reversionary, where, at the time of the assignment, the husband was willing and able to maintain her; and her equity cannot be revived by the husband's subsequent refusal or neglect to do so (q). 11. Nor upon past income, over which the husband's mortgage will prevail (r). 12. Nor upon the property specifically excepted out of the settlement (s). 13. Nor upon property for the recovery of which the husband alone has a right to sue (†). 14. Nor upon property in which the husband and wife have an interest as joint tenants (u). 15. The wife is empowered, under 20 & 21 Vict. c. 57, to release her equity to a settlement out of such personal estate as falls within the Act, in manner therein mentioned (x). Chap. XX. § 2 (v). woman to vi.-Trusts for separate Use of Married Women.-Indepen- Power of dently of the statutory enactments which have been considered married whereby the difficulties which the common law imposed upon dispose of dispositions by married women were in some measure removed, limited to her property those difficulties were got over in two ways:-(1) By the crea- separate use. tion of a separate estate for her independent of the control and liabilities of her husband; (2) by appointments under powers. Trusts for the separate use of married women were recognized Nature of in early times by the Court of Chancery (y), and apparently trusts for note (q); see also Ward v. Ward, 14 Ch. D. 506; Re Bryan, 14 Ch. D. 516. (0) Newenham v. Pemberton, 17 L. J. Ch. 99. (p) Hill v. Edmonds, 5 De G. & S. 603. (a) Wright v. Morley, 11 Ves. 12; Elliott v. Cordell, 4 Madd. 149; Stanton v. Hall, 2 R. & My. 175; Tidd v. Lister, 3 De G. M. & G. 857. VOL. I.-C. (r) Newman v. Wilson, 31 Beav. 34; (s) Brooke v. Hickes, 12 W. R. 703. (u) Ward v. Ward, 14 Ch. D. 506; (x) Ante, p. 333. Ꮓ separate use. |