CHAPTER XX. Married woman as an Sect. 18. "A married woman who is an executrix or administratrix alone or jointly with any other person or persons of the estate of any deceased person, or a trustee alone or jointly as aforesaid of property subject to any trust, may sue or be sued, and may transfer executrix or or join in transferring any such annuity or deposit as aforesaid, or trustee. any sum forming part of the public stocks or funds, or of any other stocks or funds transferable as aforesaid, or any share, stock, debenture, debenture stock, or other benefit, right, claim, or other interest of or in any such corporation, company, public body, or society in that character, without her husband, as if she were a feme sole." As to mortgages of settled lands of which a married woman Settled Land is tenant for life, see Chapter XXII. (q). Acts. x.-Restraint on Anticipation.-A restraint on alienation or No restraint anticipation of income given to a married woman is inoperative, tion where no on anticipaunless the income is given to her for her separate use or is her separate use. separate property by statute, and a gift to her separate use will not be implied from the mere fact that this is restrained from anticipation (r). restraint. The clause against anticipation prevents any mortgage or Effect of charge by a married woman (s); but arrears, after they have fallen due, may, notwithstanding the clause against anticipation, be assigned or charged by her (t), and have been held to be liable under a sequestration for costs directed to be paid by her (u), and it is now settled that such arrears are available in execution upon a judgment against the married woman, whether accrued due before or after the date of the judgment (x). attaches. A Court of equity will give effect during coverture to a clause To what property restraint in restraint of alienation annexed to a gift to a married woman for her separate use, whether the subject of the gift be real or personal estate, and whether it be in fee or absolute, or only for life (y). With regard to personal estate, it was formerly considered that a clause restraining anticipation on an absolute gift (4) Post, p. 392. (r) Baggett v. Meux, 1 Ph. 627; Stogdon v. Lee, (1891) 1 Q. B. 661. As to what expressions will amount to a restriction on anticipation, see Harnett v. M'Dougall, 8 Beav. 187; Moore v. Moore, 1 Coll. 54; Medley v. Horton, 14 Sim. 222; Harrop v. Howard, 3 Ha. 624; Baker v. Bradley, 7 De G. M. & G. 597. (s) Re Vardon's Trusts, 31 Ch. D. 275, at p. 280. (t) Harman v. Richards, 10 Ha. 81; Re Brettle, Brettle v. Burdett, 2 De G. (u) Claydon v. Finch, L. R. 15 Eq. (x) Hood-Barrs v. Heriot, (1896) A. C. 174, reversing the decision of C. A., (1895) 2 Q. B. 212, and overruling on this point Hood-Barrs v. Catheart, (1894) 2 Q. B. 559, C. A. (y) Baggett v. Meux, 1 Ph. 627; Re Gaskell's Trusts, 11 Jur. N. S. 780; Re Ellis' Trusts, L. R. 17 Eq. 409. CHAPTER XX. of a fund, not producing income, is ineffectual to prevent the married woman from dealing with it; but it appears to be now settled that there is no distinction between alienation and anticipation, and that the restraining clause is effectual whether the fund produces income or not, as it is the duty of the trustees or the Court to invest it (z). Fraud. Power of appointment. Rule against perpetuities. Exercise of powers under Acts. Where a fund, subject to a particular estate, is given absolutely to a married woman with a restraint on anticipation, the restraint will not, unless such intention appears, be confined to the continuance of that particular estate (a). The clause against anticipation is such a protection against the acts of the wife that its effect is not nullified even by her fraud (b). Where a limited power of appointment is given to a married woman, and a clause against anticipation is attached to the power, and, in default of appointment, the estate is limited to her separate use generally, she may dispose of the estate without regard to the power (c). Where the clause against anticipation is obnoxious to the rule against perpetuities (d), the limitation to the separate use is good, and the clause against anticipation is void; and the married woman can mortgage or otherwise deal with the property as if no such clause existed (e). Where the limitation is to a class of daughters, some of whom are in existence at the date of the settlement or the death of the testator, the clause is valid as to them, though void as to those unborn (ƒ). The restraint does not prevent the exercise of the powers Settled Land conferred by the Settled Land Act, 1882, upon a tenant for life who is a married woman (g). But a restraint on anticipation attached to an estate in fee simple does not constitute a married woman a tenant for life within the meaning of the Act, or (2) Re Bown, O'Haloran v. King, 27 Ch. D. 411; Re Grey's Settlement, Acason v. Greenwood, 34 Ch. D. 712, C. A. See Gibson v. Way, 32 Ch. D. 361. (a) Re Tippett's and Newbould's Contract, 37 Ch. D. 444, C. A. (b) Jackson v. Hobhouse, 2 Mer. 483: Clive v. Carew, 1 J. & H. 199; Arnold v. Woodhams, L. R. 16 Eq. 29; Stanley v. Stanley, 7 Ch. D. 589. See Re Glanvill, Ellis v. Johnson, 31 Ch. D. 532, at p. 537. (c) Barrymore v. Ellis, 8 Sim. 1; Brown v. Bamford, 1 Ph. 626; Vaughan v. Vanderstegen, 2 Drew. 188. (d) See as to this, Re Ridley, Buckton v. Hay, 11 Ch. D. 645. (e) Fry v. Capper, Kay, 163; Re Teague's Settlement, L. R. 10 Eq. 564; Re Cunningham's Settlement, L. R. 11 Eq. 324; Re Ridley, Buckton v. Hay, 11 Ch. D. 645. And see Thornton v. Bright, 2 My. & Cr. 230; Re Errington, Bawtree v. Errington, W. N. (1887) 23. (f) Herbert v. Webster, 15 Ch. D. 610; Cooper v. Laroche, 17 Ch. D. 368. (g) 45 & 46 Vict. c. 38, s. 61 (6). enable her to exercise the statutory powers of a tenant for CHAPTER XX. life (h). restraint. By the Conveyancing Act, 1881, the Court is empowered, Removal of with the consent of the married woman, to bind her interest by way of mortgage, or otherwise, notwithstanding a clause against anticipation (i), if it is clearly for her benefit (k), as where she is harassed by debts (1), and living separate from her husband (m). Restraint on anticipation was removed so as to enable the income of a fund to which a wife was entitled for life to be applied in keeping down interest on a mortgage effected jointly by her and her husband, and in paying premiums on policies on his life forming part of the security, on the mortgagees undertaking to reduce the rate of interest, and not to call in the principal without the leave of the Court (n). But the Act does not enable the Court to remove the restraint for the purpose paying debts which are those of the husband alone (6). See, generally, as to the considerations which may influence the Court in the exercise of its power to remove the restraint, the cases cited in the note (p). of The consent of the woman should generally be obtained by separate examination (g). Women's The Married Women's Property Act, 1882 (r), makes no Restraint not affected by alteration in the law as to the validity and effect of restraints Married on anticipation. A married woman now, as before the Act, can only dispose of, or contract in relation to, her separate property 1882. which she is not restrained from anticipating. By sect. 19 of that Act, it is enacted that: "Nothing in this Act contained shall interfere with or affect any Saving of settlement or agreement for a settlement made or to be made, existing settlements whether before or after marriage, respecting the property of any and the power married woman, or shall interfere with or render inoperative any to make restriction against anticipation at present attached or to be here- future settle (0) Re S.'s Settlement, W. N. (1893) 127. (p) Re Jordan, W. N. (1886) 6; Re Currey, W. N. (1887) 28: Re Segrave's Trusts, 17 L. R. Ir. 373; Re Tippett and Newbould's Contract, 37 Ch. D. 444, C. A.; Re Little, 40 Ch. D. 418, C. A.; Re Tennant's Estate, 25 L. R. Ir. 522. (2) Hodges v. Hodges, 20 Ch. D. 749; Musgrave v. Sandeman, 48 L. T. 215. See Harris v. Harford, W. N. (1888) 190. (r) 45 & 46 Vict. c. 75, ments. 342 CHAPTER XX. after 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." Costs may be ordered to be paid out of property subject to Where by an existing settlement all future property of the wife to a specified amount (except interest settled to her separate use) was included, and after the Act of 1882 the wife became entitled to an absolute interest above the specified amount, which she claimed to be paid to her on her separate receipt under sect. 5, it was held that by sect. 19 the settlement was exempted from sect. 5, and the absolute interest was subject to the settlement (s). Where a judgment had been recovered against a married woman who subsequently obtained a dissolution of her marriage and married again, and on such second marriage settled her property to her separate use without power of anticipation, it was held that, the debt having been contracted before the second marriage within sect. 19, the restraint on anticipation was void as against it (t). By the Married Women's Property Act, 1893 (u), s. 2, it is enacted that: "In any action or proceeding now or hereafter to be instituted by a woman, or by a next friend on her behalf, the Court before which such action or proceeding is pending shall have jurisdiction, by judgment or order from time to time, to order payment of the restraint on costs of the opposite party out of property which is subject to a anticipation. restraint on anticipation, and may enforce such payment by the appointment of a receiver and a sale of the property or otherwise, as may be just." It is conceived that the words "or otherwise " empower the Court in a proper case to direct the costs to be raised by mortgage of property which a married woman is restrained from anticipating. It is to be observed that this section does not give (s) Re Stonor's Trusts, 24 Ch. D. 195; Re Whitaker, Christian v. Whitaker, 34 Ch. D 227; Hancock v. Hancock, 38 Ch. D. 78. (t) Jay v. Robinson, 25 Q. B. D. 467, C. A. (u) 56 & 57 Vict. c. 63. 343 the Court jurisdiction to order the costs of an action or proceeding CHAPTER XX. instituted against a married woman to be raised and paid notwithstanding the restraint (x). by married xi.-Liability of Married Women under Covenants for Payment Contracts of Mortgage Moneys.-The former doctrine, as to the liability of women under the separate estate of a married woman to her engagements, was, the old law. that she must show an intention, either express or by implication, to create a charge; and for this purpose a bond, or promissory note, or other general security in writing, was considered necessary; such writing could have no operation, except as against her separate estate (y). So in Murray v. Barlee (2), it was held that a written retainer by a married woman of her solicitor, or a written acknowledgment or adoption of his professional conduct, or instructions in writing to proceed, were sufficient to create an implied promise to pay all proper expenses incurred on her behalf, and thereby to charge her separate estate, although, in that case, there was a written promise to pay. But, according to more recent cases, such property is liable to her general engagements, though no written instrument is executed; not by way of execution of any power, as was once held (a), but upon the ground that, having a power to deal with the property, she has the other powers incident to property in general, viz., the power of contracting debts to be paid out of it, and, inasmuch as her creditors had not the means at law of compelling payment of those debts, a Court of equity took upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate estate as the only means by which they might be satisfied (b). Thus, independently of the statutory enactments to be presently considered, the separate estates of married women are bound by their debts, obligations, and engagements, contracted with reference to and upon faith or reference to those estates; and a married woman may render her separate property liable to a charge without having in the transaction made any direct charge on, or made any reference to, the property settled to her separate (x) Hood-Barrs v. Cathcart, (1894) 3 Ch. 376, C. A.; Hollington v. Dear, W. N. (1895) 35. For form of order, see Davies v. Treharris Brewery Co., W. N. (1884) 198. (y) Hulme v. Tenant, 1 Bro. C. C. 16; Stuart v. Lord Kirkwall, 3 Madd. 387; Greatley v. Noble, 3 Madd. 79; Bullpin v. Clarke, 17 Ves. 365. (z) 3 My. & K. 209, 225. See Bolden (a) Field v. Sowle, 4 Russ. 112. |