protection to a married woman against the legal power over the Chap. XXI. wife's property which is vested in the husband. "It acts in contravention and control of the legal right of the husband, and as against his legal power it is a sufficient protection; but, the power of alienation remaining in the wife, the separate estate, unfettered, is no protection against the moral influence of the husband; and many instances have occurred in which the wife, under the persuasion or influence of her husband, has been induced to exercise her power of alienation in his favour, or for his benefit, and thus defeat the protection intended for her. It has, there- Restraint on fore, become usual to introduce into wills and settlements a clause anticipation. directing that the separate estate shall be incapable of assignment in anticipation, or of alienation; and the validity of this restraint on anticipation" has long been allowed. But a restraint on anticipation can only be imposed in respect of separate estate; though it is sufficient if the separate use arises only by virtue of the Act.* Separate estate, as its name implies, has its existence only during a coverture, i.e., so long as the owner of it is a married woman; 5 but, unless the trust for separate use is limited to the duration of a specified marriage, the separate use will again arise on a subsequent marriage; and the restraint on anticipation, being only an incident of the separate estate, ceases with the determination of the coverture but attaches again on a subsequent marriage.7 Therefore, after the death of the husband or dissolution of the marriage, the wife (so long as she remains unmarried) can dispose of property which during the marriage was her equitable separate property subject to a restraint on anticipation.8 1 Per Ld. Langdale, M.R., Tullett v. Armstrong, 1 Beav. 22; 49 R. R. 280. As to gifts by wife to husband, see Vaizey on Settlements, 783 et seq. 2 Ib. See, further, as to separate estate, per Ld. Selborne, C., Cahill v. Cahill, 8 App. Cas. 426 (cited M. L. R. P. 115); Taylor v. Meads, 4 De G. J. & S. 597, 603 (cited M. L. R. P. 117) ; and as to restraint on anticipation, M. L. R. P. 128; Elph. N. & C. Interp. 301; Theobald on Wills, 556; Butler v. Butler, 16 Q. B. D. 377. As to the history of the "restraint on anticipation," see Haynes, Outlines of Equity (Lecture VII.), p. 227; Kenny on Married Women, 104. 3 Stogdon v. Lee, [1891] 1 Q. B. 661. 5 Tullett v. Armstrong, 1 Beav. 24; 6 lb. p. 27; Hawkes v. Hubback, 11 Eq. 5; Hamilton v. Hamilton, [1892] 1 Ch. 396; Stroud v. Edwards, 77 L. T. 280. 7 Tullett v. Armstrong, 1 Beav. 1; 4 My. & Cr. 390; 49 R. R. 280; Shafto v. Butler, 40 L. J. Ch. 308: Hamilton v. Hamilton, sup. ; Stroud v. Edwards, sup.; Re Wheeler, [1899] 2 Ch. 717. See Woodmeston v. Walker, 2 R. & My. 197. 8 Wright v. Wright, 2 J. & H. 647. Chap. XXI. Removal of restraint in certain cases. Devolution of separate estate. Separate use-how created. The restraint on anticipation does not apply to income which has accrued due to a married woman, though such income has not come to her hands, but is in the hands of her trustees.1 A married woman cannot by any estoppel from her acts, conduct, or admissions, or by her own fraud, be deprived of the protection afforded by a restraint on anticipation.2 The Conveyancing Act, 1881, provides that, where a married woman is restrained from anticipation, the Court may, with her consent, by judgment or order bind her interest in any property if it appears to the Court to be for her benefit to do so.3 The Married Women's Property Act, 1893, enables the Court, before which any action or proceeding instituted by a woman is pending, to order payment of the costs of the opposite party out of property which is subject to a restraint on anticipation, and to enforce such order by the appointment of a receiver and the sale of the property.* The quality of separate property ceases on the death of the married woman, and thereupon, in the absence of express provision to the contrary, her separate property (so far she has not disposed of it by will or otherwise) devolves, and the right of her husband surviving her accrues, just as if the separate use had never existed.5 No particular form of words is required to create the separate use. Any expression from which an intention to exclude the husband can be clearly inferred will be sufficient for that purpose; but the intention to give a separate estate must be clearly expressed. The words must show an intention to secure the property against the control of the husband and to give to the wife the sole and absolute disposition." The usual origin of separate estate is an ante-nuptial settlement, 1 Hood-Barrs v. Heriot, [1896] A. C. 174. 2 Bateman v. Faber, [1898] 1 Ch. 144. 344 & 45 Vict. c. 41, s. 39. Ke Pollard, [1896] 2 Ch. 552; Re Blundell, [1901] 2 Ch. 22. 4 56 & 57 Vict. c. 63, s. 2. HoodBarrs v. Heriot, [1897] A. C. 177; Hood-Barrs v. Cathcart (No. 4), [1895] 1 Q. B. 873; Nunn v. Tyson, [1901] 2 K. B. 487. 5 Per Stirling, J., Re Lambert, 39 Ch. D. 633, citing Proudley v. Fielder, 2 My. & K. 57; 39 R. R. 135; Molony v. Kennedy, 10 Sim. 254; 51 R. R. 236; Cooper v. Macdonald, 7 Ch. D. 296. See ante, p. 374. 6 See Elph. N. & C. Interp., Rule 117, p. 296, and instances there cited, and in the notes to Hulme v. Tenant, 1 W. & T. L. C. 661; Theobald on Wills, 558: Vaizey on Settlements, p. 754. 7 Massy v. Rowen, L. R. 4 H. L. 288. See Surman v. Wharton, [1891] 1 Q. B. 491. or a gift or limitation to her separate use in some other written Chap. XXI. instrument inter vivos, or a bequest by will; but such separate estate may arise in other ways, as, for example, where her husband agrees after the marriage that she shall carry on a trade or business on her separate account; and such agreement may be express, or implied from conduct on the part of the husband showing that he had made himself a trustee for the wife.1 And separate property might arise where a wife was deserted by her husband,2 or judicially separated. 4 Lord Langdale, M.R., expressed the result of the authorities in the following propositions: 66 Property given to a woman for her separate use, independent of any husband, may be enjoyed by her during her coverture as her separate estate, although the property originally, or at any subsequent period or periods of time, became vested in her when discovert. In respect of such separate estate she is considered as a feme sole, although covert. Her faculties as such and the nature and extent of them are to be collected from the terms in which the gift is made to her and will be supported by the Court for her protection." "The words independent of a husband,' whether expressed, or implied in the terms of the gift, mean no more than that the Court will not permit the marital power of the husband to be used in contravention of the enjoyment of the property according to the terms of the gift." "If the gift be made for her sole and separate use, without more, she has during the coverture an alienable estate independent of her husband." "If the gift be made for her sole and separate use without power to alienate, she has during the coverture the present enjoyment of an unalienable estate, independent of her husband." "In either of these cases she has, when discovert, a power of alienation; the restraint is annexed to the separate estate only, and the separate estate has its existence only during coverture; while the woman is discovert, the separate estate, whether modified by restraint or not, is suspended and has no operation, though it is capable of arising on the happening of a marriage. The separate estate may and often does exist without the restriction, but the restriction has no independent existence; when found, it is as a modification of the separate estate and inseparable from it." 1 See the cases of Ashworth v. Outram, 5 Ch. D. 923; Lovell v. Newton, 4 C. P. D. 7; and Re Dearmer, 53 L. T. 905. 2 Cecil v. Juxon, 1 Atk. 278. 3 Rudge v. Weedon, 4 De G. & J. 216. See as to a protection order on desertion, 20 & 21 Vict. c. 85, s. 21, amended by 21 & 22 Vict. c. 108, s. 8; Mahoney v. G.P.P. M'Carthy, [1892] P. 21; Hill v. Cooper, + Tullett v. Armstrong, 1 Beav. 32: 49 26 (3.) Thirdly, we have to discuss the proprietary rights conferred on married women by statute. 3 The Married Women's Property Act, 1870,1 as amended by the Act of 1874,2 gave to every married woman (whenever married) as her separate property, when acquired after the 9th August, 1870, all separate earnings, deposits in savings banks made in her own name, and all government annuities, public stocks or funds, shares, debentures, or stock of any company or society entered in her own name; also (in cases of women married after 1870) all personal property devolving on her as next of kin of an intestate, and any sum not exceeding 2001. coming to her under any deed or will,* and the rents and profits of real estate descending to her as heiress. The Act also enabled a married woman to insure her own or her husband's life, for her separate use.5 The Acts of 1870 and 1874 were repealed by the Married Women's Property Act, 1882, which made very sweeping changes in the proprietary relations of husband and wife, and to a very large extent abrogated the old common law rules. It is to be especially observed that separate property to which a married woman is entitled under this Act is her property at law, and the legal interest is vested in her and not in trustees in trust for her, as is the case with the equitable separate estate which we discussed above. The provisions of the Act, it has been said, "seem to be intended to give her at law a right to any property acquired after the commencement of the Act, equivalent to the separate use, which was a creation of equity. In the creation of that separate use a trust was required; and, as a trust never fails for want of a trustee, where no other trustee was appointed, it was held that the husband should be considered as trustee for the wife. This new interest is to be without any trust, a legal interest."7 It will be seen that the Act gives proprietary rights, not only to all women married after 1882, but also to women married before 1883, so far as regards property acquired by them after 1882. By the Act of 1882, as amended by the Act of 1893, a married 1 33 & 34 Vict. c. 93. 237 & 38 Vict. c. 50. 3 See Ashworth v. Outram 5 Ch. D. 923. 4 Re Voss, 13 Ch. D. 504; Re Davies, [1897] 2 Ch. 204. 5 Johnson v. Johnson, 35 Ch. D. 345. 645 & 46 Vict. c. 75, s. 22. 7 Per Kay, J., Re Jupp, 39 Ch. D. 152 8 45 & 46 Vict. c. 75. 9 56 & 57 Vict. c. 63. woman is, in accordance with the provisions of the Act,1 capable Chap. XXI. of acquiring, holding, and disposing of, by will or otherwise, any and dispose real or personal property as her separate property in the same of property. manner as if she were a feme sole, without the intervention of any trustee.2 A woman married after the commencement of the Act is entitled to have, hold, and dispose of as her separate property, all real and personal property belonging to her at the time of marriage, or acquired by or devolving on her after marriage, including all earnings, money, and property gained or acquired by her in a separate trade or occupation.3 1883. A woman married before the commencement of the Act is entitled Women married before to have, hold, and dispose of as her separate property all real and personal property her title to which, whether vested or contingent, and whether in possession, reversion, or remainder, accrues after the commencement of the Act, including all earnings, money, and property gained or acquired by her separately from her husband. It was held that s. 1 did not give any disposing power as to property not falling within ss. 2 and 5, and that, therefore, the will of a married woman would not operate on property acquired by her before the Act or after coverture unless re-published; but this has been altered by the Act of 1893.6 title. If a woman married before the commencement of the Act has, Accrual of before that time, acquired a title, whether vested or contingent, in reversion or remainder, to any property, that property does not become her separate property by s. 5, though it falls into possession after the Act.7 or restraint on anticipation, not affected. The provisions of ss. 2 and 5 of the Act of 1882 must be read Settlements, in connection with those of s. 19, which provide that nothing in the Act shall interfere with or affect any settlement, whether antenuptial or post-nuptial, respecting the property of a married woman, or any restraint on anticipation. A restraint on anticipation in any settlement by a woman of her own property is not, however, valid against any debts contracted by her before 8 656 & 57 Vict. c. 63, s. 3. Ante, p. 373. 7 Reid v. Reid, 31 Ch. D. 402; R Parsons, 45 Ch. D. 51. 8 45 & 46 Vict. c. 75, s. 19. See Re Wheeler, [1899] 2 Ch. 717; Birmingham Soc. v. Lane, (1903) 1 K. B. 35. |