Chap. XX. § 2 (vi). What words will create a separate use. Mode of creating a separate use. Separate use generally attaches on any coverture. also, to some extent, by the Courts of Common Law (≈). The effect of such trusts is not only to secure to a wife the enjoyment of the property so settled free from the control of her husband, and without being liable to his debts and engagements, but also to enable her (unless restrained from anticipation) effectually to dispose of her interest therein without any necessity for his concurrence. The Questions have frequently arisen as to what words are sufficient to create a trust for the separate use of a married woman. word "separate" is the proper technical term for excluding the marital right; but it is sufficient if an intention to give property to the separate use of a married woman is clearly indicated by the instrument creating the trust (a). The proper mode of creating a separate use in favour of a married woman is to vest the property in trustees upon a trust for that purpose, but if the property is not so vested, the trust will not be allowed to fail for want of a trustee, but the property will vest in the husband during the continuance of the coverture as trustee for the separate use of his wife (b). It is now settled, that where property is limited to the separate use of a woman, whether married or unmarried, the separate use takes effect so long, and as often, as she is in the state of marriage; and therefore, during such time, she may charge and incumber it at her pleasure; and if a clause against anticipation is added, that equally operates whenever she is not sole, so as to give her the present enjoyment of an inalienable estate, independent of her husband; but in either case she has full power of disposition whilst she is single (c). Where an estate for separate use or separate use with restriction against anticipation is given generally, subsequent words which appear to point to a present or future coverture only, are treated as superfluous, and the separate use applies to all covertures (d). (2) Bush v. Allen, 5 Mod. 63. See Duncan v. Cashin, L. R. 10 C. P. 554. (a) As to what expressions are sufficient to create a separate use, see the note to Jarman on Wills, 5th ed. p. 880; Vaizey on Settlements, vol. i. pp. 753 et seq.; Lewin on Trusts (8th ed.), pp. 755 et seq.; Godefroi on Trusts (2nd ed.), pp. 552 et seq. (b) Bennet v. Davis, 2 P. Wms. 316; Rich v. Cockell, 9 Ves. 369, 375; Ashworth v. Outram, 5 Ch. D. 923, 941, C. A.; Fox v. Hawks, 13 Ch. D. 822. (c) Tullett v. Armstrong, 4 My. & Cr. 377. (d) Steedman v. Poole, 6 Ha. 193; Re Gaffee, 1 Mac. & G. 541; Hawkes v. Hubback, L. R. 11 Eq. 5; Re Molyneux's Estate, Ir. R. 6 Eq. 411. use. Where an estate for life (e) or in fee (ƒ) is limited to a married Chap. XX. woman for her separate use, she has a complete right of dis- § 2 (vi). position thereof, by deed or will; and, accordingly, she can Effect of trust alienate that estate, independently of the Fines and Recoveries for separate Act (g), without the concurrence of her husband, and without any acknowledgment. An instrument disposing of a wife's separate estate, real or personal, and executed by her, effectually conveys her equitable interest, and operates as a direction to the trustees to convey or hold the estate according to the new trust which is created by such direction, and the trustees are bound to convey accordingly (h); and when the trust thus created is clothed by the trustees with the legal estate, the alienation is complete both at law and in equity (). If the legal estate is vested in the wife, it can only be effectually conveyed by the wife with her husband's concurrence by deed acknowledged. The Married Women's Property Act, 1882 (k), does not alter the powers of a married woman over her separate estate, not being her separate property, by virtue of the Act (7). A married woman may create a valid charge upon her separate property without expressly charging it in terms (m), but the mere fact of her being a party to a deed by which her husband alone assigns property limited to her separate use, but without any disposition by her, or any recital or covenant on her part indicating an intention to charge her interest, will not bind such interest (n). interests. A married woman, unless restrained from anticipation, can Reversionary generally dispose of a reversionary interest settled to her separate use in realty (o), or personalty (p); but it seems doubtful whether she can do so if the reversionary interest is contingent (9), or an interest which cannot by any possibility arise (e) Parkes v. White, 11 Ves. 209; Acton v. White, 1 S. & St. 429; Glyn v. Baxter, 1 Y. & J. 329. (f) Taylor v. Meads, 4 De G. J. & S. 597; Atchison v. Le Mann, 23 L. T. 302; Hall v. Waterhouse, 11 Jur. N. S. 361; Blatchford v. Woolley, 2 Dr. & S. 204, 206; Pride v. Bubb, L. R. 7 Ch. 64. (g) 3 & 4 Will. IV. c. 74, ante, p. 327. (h) See Peters v. Lewes & East Grinstead Rail. Co., 18 Ch. D. 429, C. A. (i) See per Lord Westbury in Tay lor v. Meads, 4 De G. J. & S. 597, at (k) 45 & 46 Vict. c. 75, post, p. 344. (m) See Crosby v. Church, 3 Beav. 489. (n) Tullett v. Armstrong, 4 My. & Cr. 377. See also Callow v. Howle, 1 De G. & S. 531. (0) Major v. Lansley, 2 R. & My. 355. (p) Sturgis v. Corp, 13 Ves. 190. Chap. XX. § 2 (vi). Savings by married women. Bar of estate tail. Covenant to settle after acquired property. during the coverture (r). So, also, the trust for separate use may be so framed as not to attach to the interest of a married woman till the happening of a future event, in which case she cannot dispose of such interest until the event happen (s). Savings, during coverture, from separate estate, and investments thereof in stock or furniture, are separate estate (t), although the stock were purchased by the husband (u), but not savings during discoverture (x). Shares in a company purchased by a wife out of savings are separate estate, and the husband is not a contributory (y). Since the Judicature Act (), the decisions at common law, in respect of savings, and property purchased with them (a), will no longer apply. The rule in equity must be followed, as it was before the Act upon an interpleader rule (b). Where an estate tail is limited to the separate use of a married woman, she may bar the entail, and dispose of the estate, free from any curtesy of her husband, but his consent is required by the Fines and Recoveries Act (c), under which alone she can bar the entail, and is necessary, notwithstanding that the estate is limited to her separate use; and even if there is a clause against anticipation covering the entail, she may still bar the entail, although she cannot dispose of the estate, or its income (d). Separate property of a married woman has been held not to be subject to a covenant by the husband alone for the settlement of the wife's future property (e), nor is an estate tail (ƒ); but if a covenant to settle after-acquired property is entered into both by the intending husband and the intending wife, it will (r) Bestall v. Bunbury, 13 Ir. Ch. 318, 549. (8) King v. Lucas, 23 Ch. D. 712, C. A. (t) Newlands v. Paynter, 4 My. & Cr. 408; Brooks v. Brooks, 25 Beav. 342; Molony v. Kennedy, 10 Sim. 254, 255; Haddon v. Fladgate, 27 L. J. P. D. & A. 21; Barrack v. McCullock, 3 K. & J. 110; Darkin v. Darkin, 17 Beay. 578; Humphrey v. Richards, 2 Jur. N. S. 432; Haselinton v. Gill, 3 T. R. 620, n. (u) Lloyd v. Solicitors, &c. Life Assur- (x) Spicer v. Spicer, 24 Beav. 365. () 36 & 37 Vict. c. 66, s. 25, sub-s. 11. (a) Carne v. Brice, 7 M. & W. 183; Tugman v. Hopkins, 4 Man. & Gr. 401; Messenger v. Clark, 5 Exch. 388; Bird v. Pegrum, 13 C. B. 639. (b) Duncan v. Cashin, L. R. 10 C. P. 554; Engelback v. Nixon, L. R. 10 C. P. 645. (c) 3 & 4 Will. IV. c. 74. See post, p. 379. (d) Cooper v. Macdonald, 7 Ch. D. 288, C. A. (e) Dawes v. Tredwell, 18 Ch. D. 358, C. A. (f) Hilbers v. Parkinson, 25 Ch. D. 200. Chap. XX. § 2 (vi). bind her so as to compel her to settle it (g); and a declaration in a will that the property shall not be settled is disregarded (). By the Matrimonial Causes Act, 1857 (i), in case of judicial Effect of separation or desertion, all property which the wife may acquire ration, &c. judicial sepaor which may come to or devolve upon the wife belongs to her, as a feme sole (k), although there is a clause against anticipation (1); and although the property, which had been vested before, had not been reduced into possession until after the desertion (m); and the property of which she has so become possessed as a feme sole becomes, on resumption of cohabitation, her separate property (n). In case of desertion, and an order for protection of the earnings and property of the wife, her property, in remainder or reversion, at the date of the desertion, or decree for judicial separation, is included therein (0). The wife is entitled to reversionary personalty, which she and her husband had mortgaged, as soon as it falls into possession (p). Under a protection order, property of which the wife is trustee is not included (q). Nor does the statute apply so as to include property to which a married woman had become entitled previously to the separation or desertion. Thus, where a married woman, entitled to an equitable life interest in realty for her separate use without power of anticipation, was deserted by her husband and obtained a protection order; she subsequently mortgaged her life interest; it was held that as regarded the property in question, not being property acquired by her or which had come to or devolved upon her after the desertion, the restraint on anticipation prevailed notwithstanding the order (). vii.-Appointments under Powers.-A married woman can, Married independently of any statutory enactments, exercise a power of (9) Re Allnutt, Pott v. Brassey, 22 Ch. D. 275; Re Currey, Gibson v. Way, 36 Ch. D. 391. (h) Scholfield v. Spooner, 26 Ch. D. 94. (i) 20 & 21 Vict. c. 85, s. 25. (k) Re Ford, 32 Beav. 621; Bathe v. Bank of England, 4 K. & J. 564; Whittingham's Trusts, 10 Jur. N. S. 818; Insole's Trust, L. R. 1 Eq. 470; Johnson v. Lander, L. R. 7 Eq. 228, M. R. (1) Cooke v. Fuller, 26 Beav. 99; Munt v. Glynes, 41 L. J. Ch. 639. (m) Re Coward and Adams' Purchase, L. R. 20 Eq. 179; Nicholson v. Drury (p) Re Insole, L. R. 1 Eq. 470. See (a) Kingsman v. Kingsman, 6 Q. B. D. 122, C. A. (r) Hill v. Cooper, (1893) 2 Q. B. 85, C. A. Cf. Re Hughes, Brandon v. Hughes, (1898) 1 Ch. 529. woman may exercise power of appointment over realty by deed acknowledged. Chap. XX. appointment whether relating to land or simply collateral (s); § 2 (vii). her husband's concurrence is not necessary for this purpose (†), unless required by the terms of the power (u); and inasmuch as sect. 78 of the Fines and Recoveries Act. (a) expressly provides that the powers of disposition given to married women by that Act shall not interfere with any other powers which they had before the Act, it is obvious that the instrument whereby the power is exercised does not require acknowledgment. This rule applies to copy holds as well as freeholds (y). Copyholds. Legal estate. Misrepresentation as to power. Appointments of personalty. Payment of interest on void mortgage. Release of powers by married woman as regards land. The exercise by a married woman of a power of appointment over land in favour of a mortgagee or purchaser will pass the legal estate unless outstanding (≈). Where a married woman joined her husband in a mortgage of an estate by deed, which represented her to have a power of appointing the fee, though, in fact, the estate was settled to her separate use for life with remainder to the husband for life with remainder over, it was held that the mortgagee was not debarred from enforcing his security against her life estate (a). A married woman may also exercise a power of appointment over personalty whether in possession or reversionary (b), and an appointment of a future or reversionary interest will not require acknowledgment under Malins' Act (c). Where a mortgage is void by reason of the defective exercise of a power by a married woman, payment by her of interest for many years will not render the mortgage binding on her (d). A married woman might formerly have extinguished a power affecting land by fine or recovery (e); and by sect. 77 of the Fines and Recoveries Act (ƒ) a married woman is empowered to release, surrender, or extinguish any power which may be vested in, limited, or reserved to her in regard to lands of any tenure, or any money subject to be invested in the purchase of lands, provided her husband concur in the deed and that the deed be duly acknowledged. (s) Lady Travel's Case, cit. 3 Atk. 711; Peacock v. Monk, 2 Ves. Sen. 191. (t) Doe d. Blomfield v. Eyre, 5 C. B. 713. (u) Antrim v. Buckingham, 1 Ch. Ca. 17. (x) 3 & 4 Will. IV. c. 74. (y) Driver v. Thompson, 4 Taunt. 294. (2) Wright v. Lord Cadogan, 2 Ed. 239, 252. See Field v. Moore, 7 De G. M. & G. 691, 703. |