By sect. 1 (g) of Malins' Act, a married woman is empowered Chap. XX. in like manner to release or extinguish any power over a future § 2 (vii). or reversionary interest in personalty, unless she is restrained Release of from alienating the same.

be acknow

power over personalty. By sect. 52 of the Conveyancing and Law of Property Act, Whether 1881 (h), a person to whom a power, created either before or release must after the Act, whether coupled with an interest or not, is given, ledged. may by deed release or contract not to exercise the power. This section has been said to be merely declaratory (i), and though a married woman is no doubt a "person," yet it has been doubted whether she could release her power over land or reversionary personalty except with her husband's concurrence and by deed acknowledged (); but it has since been decided that she can release a power of appointment over personalty by deed unacknowledged (7).

Sect. 6 of the Conveyancing Act, 1882 (m), enables a person to whom a power, created before the Act, is given, whether coupled with an interest or not, by deed to disclaim such power, and the above remarks seem also to apply to this enactment (n).

The Married Women's Property Act, 1882 (0), does not seem to affect the question whether a release or disclaimer by a married woman under these sections must be by deed acknowledged, as, though it enables a married woman freely to dispose of property, it nowhere expressly enables her to release or disclaim a power as if she were a feme sole (p).

viii.—Mortgages under the Married Women's Property Act, 1870. Under the Married Women's Property Act, 1870, the power of a married woman to mortgage, or otherwise dispose of, property was extended. By it certain property—for instance, earnings, deposits in savings banks, policies on her life, &c.acquired by a woman after the Act, whenever married, was

(g) See section set out, ante, p. 333. (h) 44 & 45 Vict. c. 41.

(i) Per North in Re Radcliffe, Radcliffe v. Bewes, (1891) 2 Ch. 662, at p. 670.

(k) See Wolst. Conv. and S. L. Acts (8th ed.), p. 112; Mr. Farwell thinks differently, see Powers (2nd ed.), P. 117.

(1) Re Chisholm, Hemphill v. Hemphill, (1901) 2 Ch. 82.

Chap. XX. § 2 (viii).

Married

woman to be capable of holding pro perty as a feme sole.

declared to be her separate property. But this Act was repealed (except as to acts done, rights acquired, or liabilities incurred) by the Married Women's Property Act, 1882.

ix.-Mortgages under the Married Women's Property Act, 1882. Since the 1st January, 1883, the Married Women's Property Act, 1882 (q), has introduced important changes in the law in regard to the power of a married woman to dispose of her property (r) by way of mortgage, or otherwise; the effect of the Act in this respect is to introduce, instead of the old separate use in equity, a statutory separate property at law, as to which the married woman has all the powers of a feme sole. By sect. 1 (1) thereof it is enacted as follows:

"A married woman shall, in accordance with the provisions of this 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."

This enactment is to be construed along with sects. 2 and 5 of the Act (stated below), and does not give to a married woman power to dispose of property not falling within the two latter sections; her power of disposing of such property is still regulated by the old law (s).

The main object of this sub-section is "to introduce an entirely new right in married women to relieve them from the necessity of having a trustee, and to say that they shall, as provided in the subsequent part of the Act, have power to acquire, hold, and deal with real and personal property without the intervention of a trustee" (t).

Under a marriage settlement made in 1878, a widow was entitled for her life to the income of a fund, with power to appoint the property by deed or will while discovert, and in default the corpus was held in trust for her absolutely; she married again after the commencement of the Act; it was held that, inasmuch as, before her second marriage, she would have

(9) 45 & 46 Vict. c. 75.
(r)"Property" in this Act includes
a thing in action. See s. 24.

(s) Re Cuno, Mansfield v. Mansfield,

43 Ch. D. 12, C. A. See also Re Harris' Settled Estates, 28 Ch. D. 171.

(t) Per Cotton, L. J., ibid. at p. 16. See Hope v. Hope, (1892) 2 Ch. 336, 341.

been entitled to have the corpus of the fund transferred to her
absolutely, her interest therein became upon her second marriage
her"
separate property" by virtue of the Act, so that she was
notwithstanding her marriage entitled to an absolute transfer of
the fund without releasing her power (u).

Chap. XX.

§ 2 (ix).

a woman

Sect. 2. "Every woman who marries after the commencement of Property of this Act, shall be entitled to have and to hold as her separate pro- married after perty, and to dispose of in manner aforesaid, all real and personal the Act to be property which shall belong to her at the time of marriage, or shall held by her as be acquired by or devolve upon her after marriage, including any a feme sole. 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."

woman

Sect. 5. "Every woman married before the commencement of this Property Act shall be entitled to have and to hold and to dispose of in acquired after the Act by a manner aforesaid as her separate property all real and personal property, her title to which, whether vested or contingent, and married before whether in possession, reversion, or remainder, shall accrue after the Act to be the commencement of this Act, including any wages, earnings, held by her as money and property so gained or acquired by her as aforesaid." a feme sole.

From these enactments it is manifest that all women married after the 1st of January, 1883, have over all their property the same disposing powers, both at law and in equity, as femes sole. For the conveyance of real property, to which a married woman is beneficially entitled under the statute, neither the concurrence of the husband nor acknowledgment under the Fines and Recoveries Act, nor separate examination in Court, will be required (x). So it was held that a married woman married since 1882 might enlarge a base fee created by her before her marriage without the concurrence of her husband or acknowledgment (y). Similarly, the protection of Malins' Act (~) over reversionary interests in personalty is dispensed with, and such, unless protected by settlement, may be aliened at the married woman's sole discretion without deed acknowledged or separate examination.

Women married before the 1st of January, 1883, may similarly and without restriction deal with all property their title to which accrues after that date. The title to a reversionary interest, whether vested or contingent, is deemed to "accrue" when such

(u) Re Onslow, Plowden v. Gayford, 39 Ch. D. 622. See Re Davenport, Turner v. King, (1895) 1 Ch. 361.

(x) Riddell v. Errington, 26 Ch. D.

220.

(y) Re Drummond and Davie's Contract, (1891) 1 Ch. 524.

(z) 20 & 21 Vict. c. 57.

Chap. XX. § 2 (ix).

Married

woman

trustee or mortgagee.

As to stock,

a married

woman is entitled.

title was first acquired, not when it falls into possession (a); but a mere "spes successionis" is not a title to property (b).

It follows that the doctrine of an equity to a settlement, for the future, only applies in the case of property vested but not in possession of women married before the commencement of the Act.

But the Act does not empower a woman, though married since the 1st January, 1883, who is a trustee for sale of land, to convey to a purchaser, except by deed acknowledged, and with the concurrence of her husband (c). But a married woman mortgagee is in no sense a trustee for the mortgagor until the principal, interest and costs have been satisfied. Therefore, upon a sale of the property by the mortgagor with the concurrence of the mortgagee, it is not necessary that her husband should concur in the conveyance or that the deed should be acknowledged (d). Nor is it necessary where a married woman who as sole surviving trustee is mortgagee and reconveys the property (e).

By sect. 6, the principle of the Act is applied to all deposits &c. to which in post office and other savings banks, annuities, and sums forming part of the public or other stocks and funds, and all shares, stocks, debentures, debenture stocks, or other interest of or in any corporation or company, which, on the 1st of January, 1883, were standing in the name of a married woman so as to render such deposits, &c. presumably her separate property, unless the contrary is shown; sect. 7 has similar application to the like investments allotted or transferred to a married woman after that date. Sect. 8 extends the provisions of the two preceding sections to investments standing in the joint names of a married woman and any person or persons other than her husband; and by sect. 9, any such investments as aforesaid are transferable by the married woman alone, or by her jointly with such other person or persons aforesaid, as the case may be, without the concurrence of her husband.

These sections extend the Act of 1870 by including shares, &c. in which liability to further payment is incident; by not restricting the powers to sums not less than 207., and by extending

(a) Reid v. Reid, 31 Ch. D. 402, C. A.; Re Dixon, Dixon v. Smith, 35 Ch. D. 4, C. A.

(b) Re Parsons, Stockley v. Parsons, 45 Ch. D. 51.

(c) Re Harkness and Allsopp's Con

tract, (1896) 2 Ch. 358. See s. 18, inf.

(d) Re Brooke and Fremlin, (1898) 1 Ch. 647; Re West and Hardy, (1904) 1 Ch. 145.

(e) Re Howgate and Osborn, (1902) 1 Ch. 451.

the powers of investment to deposits in any banks (not savings Chap. XX. banks only), annuities granted by any person (not government § 2 (ix). annuities only), and to shares, &c. in any corporation or public

body, municipal or otherwise.

By sect. 10, it is further enacted that—

of husband.

"If any investment in any such deposit or annuity as aforesaid, Fraudulent or in any of the public stocks or funds, or in any other stocks or investments funds transferable as aforesaid, or in any share, stock, debenture, with money or debenture stock of any corporation, company, or public body, municipal, commercial, or otherwise, or in any share, debenture, benefit, right, or claim whatsoever in, to, or upon the funds of any industrial, provident, friendly, benefit, building, or loan society, shall have been made by a married woman by means of moneys of her husband, without his consent, the Court may, upon an application under sect. 17 of this Act (ƒ), order such investment, and the dividends thereof, or any part thereof, to be transferred and paid respectively to the husband; and nothing in this Act contained shall give validity as against creditors of the husband to any gift, by a husband to his wife, of any property, which, after such gift, shall continue to be in the order and disposition or reputed ownership of the husband, or to any deposit or other investment of moneys of the husband made by or in the name of his wife in fraud of his creditors; but any moneys so deposited or invested may be followed as if this Act had not passed."

By sect. 11, it is provided that a married woman may effect a policy upon her own life or the life of her husband for her separate use, and the same and all benefit thereof shall enure accordingly; and this section further enacts that

"A policy of insurance effected by a married man or woman on his or her own life, and expressed upon the face of it to be for the benefit of the other of them with or without the children, or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the insured, or be subject to his or her debts; provided, that if it shall be proved that the policy was effected or the premiums paid with intent to defraud the creditors of the insured, they shall be entitled to receive, out of the moneys payable under the policy, a sum equal to the premiums so paid."

Moneys pay

able under policy of assurance not to form part of estate of the insured.

trustee.

Sect. 18. A married woman who is an executrix or administratrix Married alone or jointly with any other person or persons of the estate of woman as an any deceased person, or a trustee alone or jointly as aforesaid of executrix or property subject to any trust, may sue or be sued, and may transfer or join in transferring any such annuity or deposit as aforesaid, or any sum forming part of the public stocks or funds, or of any other stocks or funds transferable as aforesaid, or any share, stock,

(f) I.e., summary application.