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the income goes to his assignees. Rippon v. Norton, tenance of
bankrupt 2 B. 63.
family. But if the trustees have a discretion as to the amount to be applied towards the maintenance of the bankrupt and his family respectively, an inquiry will be directed as to how much ought to be applied for each. Page v. Way, 3 B. 20; Kearsley v. Woodcock, 3 Ha. 185; Wallace v. Anderson, 16 B. 533.
If, however, the trustees have a discretion to apply the fund for the maintenance of the bankrupt or his family their discretion remains, though whatever they think fit to apply for the bankrupt belongs to his creditors. Lord v. Bunn, 2 Y. & C. C. 98; Holmes v. Penny, 3 K. & J. 90; Chambers v. Smith, 3 App. C. 795. It may be noticed that a gift over upon the bankruptcy Whether
bankof the tenant for life does not determine a power vested in him of appointing the property in question to his termines a
power of children, unless there are directions inconsistent with the appointing
to children. subsistence of the power, such as a direction to distribute the property at once among the children in the event of bankruptcy. Wickham v. Wing, 2 H. & M. 436; Haswell v. Haswell, 28 B. 26; 2 D. F. & J. 456 ; see Potts v. Britton, 11 Eq. 433; In re Stone's Estate, I. R. 3 Eq. 621.
Where the property is given over upon alienation the Meaning term has been held to include only voluntary alienation, alienation. and not a hostile bankruptcy. Lear v. Leggett, 1 R. & M. 690; Pym v. Lockyer, 12 Sim. 391; Graham v. Lee, 23 B. 388.
On the other hand, the presentation of a petition by the legatee under the Insolvent Debtors' Act, or under the arrangement clauses of the Bankruptcy Act, 1869, is a voluntary alienation. Rochford v. Hackman, 9 Ha. 475 ; In re Amherst's Trusts, 13 Eq. 464.
If there is a strong intention of personal benefit to the legatee, as if the gift is to him for life and not to his
of the term
assigns, a gift over upon alienation has been held to
include bankruptcy. Cooper v. Wyatt, 5 Mad. 482. “Do or
If the property is given over if the legatee should“ do sutfer."
or suffer,” or “ do or permit” anything whereby the property would be vested in another, this includes a hostile bankruptcy. Roffey v. Bent, 3 Eq. 739; Ex parte Eyston; In re Therockmorton, 7 Ch. D. 145.
Under similar words the issue of a writ of sequestration against the legatee has been held to work a forfeiture.
Dixon v. Rowe, 35 L. T. N. S. 549. Deed of The execution of a deed of inspectorship is not within inspectorship. a gift over in the event of the legatee taking the benefit
of any Act for the relief of insolvent debtors. Montefiore v. Enthoven, 5 Eq. 35.
As to the meaning of alienation, see Avison v. Holmes,
1 J. & H. 530, p. 540. Meaning of Insolvency has no technical meaning, but means ininsolvency.
ability to pay debts. Freeman v. Boven, 35 B. 17; Re Muggeridge, Joh. 625; 29 L. J. Ch. 288; see De Tastet v. Le Tavernicr, 1 Kee. 161; Billson v. Crofts, 15 Eq. 314.
A declaration of insolvency in S. Australia is insolvency within the meaning of a gift over upon insolvency. Ayl
win's Trusts, 16 Eq. 585. Marriage. A gift over of a life interest given to the testator's widow
a in the event of her doing anything whereby she would be deprived of the right to receive the rents takes effect upon the marriage of the widow without making any settlement.
Craven v. Brady, 4 Eq. 209; 4 Ch. 296. Power of
The execution of an irrevocable power of attorney to attorney. receive an annuity is within a clause of forfeiture in the
event of assignment or disposition by way of anticipation.
Oldham v. Oldham, 3 Eq. 404. Gift over
Where the property is given over upon bankruptcy, the ruptcy in gift over, primâ facie, includes a bankruptcy which takes
place after the date of the will and is subsisting at the cludes a
subsisting testator's death, notwithstanding strong words of futurity. bankYarnold v. Moorhouse, 2 R. & M. 364.
ruptcy. And it has been held to include a bankruptcy which took place before the date of the will, and was subsisting at the death. Manning v. Chambers, 1 De G. & S. 282; Seymour v. Lucas, 1 Dr. & Sm. 177; Trappes v. Meredith, 10 Eq. 604 ; 7 Ch. 248. But since the object of the gift over is merely to pre- A bank
ruptcy anserve the property from going to strangers, if the bank- nulled be
fore the ruptcy is annulled before the period of distribution the
period of forfeiture does not take effect. Lloyd v. Lloyd, 2 Eq. 722; distribili Trappes v. Meredith, 9 Eq. 229; In rc Parnham's Trusts, not work a 46 L. J. Ch. 80; Samuel v. Samuel, 12 Ch. D. 152; see Robins v. Rose, 43 L. J. Ch. 334.
In the case of an immediate gift it appears the forfeiture will not take effect, where the bankruptcy is annulled within a year from the testator's death if there is no right to any payment till then. Lloyd v. Lloyd, 2 Eq. 722; Ancona v. Waddell, 10 Ch. D. 157.
This principle would not apply if one of the terms of the annulment is that the dividends accruing up to that time should be paid to the assignee. In re Parnham's Trusts, 13 Eq. 413.
In the case of an immediate specific bequest for life it was held that a clause of forfeiture did not operate, as the bankruptcy had been annulled before the day on which the first income was payable. White v. Chitty, 1 Eq. 372. See, however, Samuel v. Samuel, 12 Ch. D. 152.
These principles have no application where the freedom from bankruptcy is a condition precedent to the vesting Cox v. Fonblanque, 6 Eq. 482; see Samuel v. Samuel, supra. Similarly, if the life interest given over on bankruptcy Bank
ruptcy is subject to a prior life interest, the gift over takes effect
on a bankruptcy during the life of the prior tenant for estate.
life. Sharp v. Cosserat, 20 B. 470; Muggeridge's Trust Johns. 625.
And a gift over upon bankruptcy will carry over an accrued share directed to go in the same manner as the original share, though not accruing till after bankruptcy.
Dorsett v. Dorsett, 30 B. 250. Separate 7. It is clearly settled that the corpus as well as the
income of real or personal estate may be given to the separate use of a married woman. Taylor v. Meads, 4 D.
v, J. & S. 607; Cooper v. Macdonald, 7 Ch. D. 288.
The separate use may of course be so framed as to apply to the rents and profits only, and not to the corpus.
Troutbeck v. Boughey, 2 Eq. 534. Separate The effect of the separate use as regards the capital is use gives
to give the married woman a power of disposition. power of disposition. If the married woman does not exercise her power of
disposition the separate use is exhausted, and upon her
death the husband's rights revive. Effect of Therefore, in the case of land given to the separate use separate
of a married woman who dies without making a disposiuse on curtesy. tion, the husband is entitled to an estate by the curtesy.
Roberts v. Dixwell, 1 Atk. 607; Follett v. Tyrer, 14 Sim. 125; Appleton v. Rowley, 8 Eq. 139; Cooper v. Macdonald, 7 Ch. D. 289; overruling Hearle v. Greenbank, 3 Atk. 673; and Moore v. Webster, 3 Eq. 267.
The case of Bennett v. Davis, 2 P. Wms. 316, is sometimes cited as an authority, that an express declaration that curtesy is not to attach to lands given to the separate use of a married woman would be effectual where no disposition is made of the lands. The question did not arise
in the case, as both husband and wife were alive. Chattels Chattels real belonging to the wife to her separate use real to separate vest in the husband, jure mariti, if she dies without dis
posing of them. Archer v. Lavender, I. R. 9 Eq. 220.
» « abso
And it seems chattels in possession belonging to the Chattels in
possession. wife to her separate use, and not disposed of, belong to the husband without the necessity of taking out administration to the wife. Molony v. Kennedy, 10 Sim. 254 ; Bird v. Peagrum, 13 C. B. 639.
In giving property to a woman the marital right will be held to be excluded only by a clear indication of intention to exclude it.
The word "separate" is sufficient for this purpose, What whether the legatee is married or not. Archer v. Rorke, create a 7 Ir. Eq. 478.
separate On the other hand, such words as “own use,' lute use," or to pay to "her own proper hands,” are not enough, whether the legatee is married or single, or whether trustees are interposed or not. Rycroft v. Christy, 3 B. 238; Tyler v. Luke, 2 R. & M. 183; Blacklow v. Laws, 2 Ha. 49; Taylor v. Stainton, 2 Jur. N. S. 634; Wills v. Sayer, 4 Mad. 409; Roberts v. Spicer, 5 Mad. 491; Beales v. Spencer, 2 Y. & C. C. 651.
But if the legatee is married at the time and the legacy is directed to be at her own disposal, a separate use is created. Kirk v. Paulin, 7 Vin. Ab. 95, pl. 43; Prichard V. Ames, T. & R. 222. Directions that the receipt of a legatee, "notwithstand- Separate
receipt. ing coverture, and that her “sole and separate receipt should be a good discharge, have been held to create a separate use. Cooper v. Wells, 11 Jur. N. S. 923; In re Molyneux's Estate, I. R. 6 Eq. 411.
The same has been held where the legatee was married, and her receipt was declared to be a sufficient discharge. Lee v. Prieaux, 3 B. C. C. 381; Re Lorimer', 12 B. 521.
And where a legacy was given, if husband and wife should not be living together, half to the husband and half to the wife absolutely, the wife took to her separate use. Shewell v. Dwarries, Johns. 172.