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So, too, a direction that the devisee is to receive the rents herself, whether married or single, creates a separate
Goulder v. Camm, 1 D. F. & J. 146. Probably a gift for the maintenance and support of a woman referred to by the testator as married would create a separate use. Darley v. Darley, 3 Atk. 399; Cape v. Cape, 2 Y. & C. Ex. 543; see Wardle v.Claxton, 9 Sim. 524,
And a power given to trustees to apply income for the maintenance and support of a widow authorises payment of the income to her separate use. Austin v. Austin, 4
Ch. D. 233; see In re Peacock's Trusts, 10 Ch. D. 490. Effect of The word sole may in some cases be sufficient to create the word “sole" a separate use, but primâ facie it has no such technical in creating meaning, and the burden of proof is upon those who assert separate
it has. Lewis v. Mathews, 2 Eq. 177; Massy v. Rowen, L. R. 1 Ir. Eq. 110; ib., 4 H. L. 288.
In a marriage settlement where the whole object is to secure to the wife a separate estate, the word may have the force of separate. Ex parte Ray, 1 Madd. 199.
But in a will where no such intention can be presumed, further indication is necessary.
a. A gift to "A., the wife of B., for her sole use," creates a separate use. Inglefield v. Coghlan, 2 Coll. 247; Farrow v. Smith, W. N. 1877, 21; In re Amies' Estate; Milner v. Milner, W. N. 1880, 16; Bland v. Dawes, 43 L. T. N. S. 751.
b. The same has been held where though the legatee was not in the gift to her referred to as married, it appeared from other parts of the will that she was a married woman. Green v. Britten, 1 D. J. & S. 649; Hartford v. Power, I. R. 2 Eq. 204.
But this is not the case if the legatee be the testator's own wife, so that she must be discovert when the will takes effect. Gilbert v. Lewis, 1 D. J. & S. 38; Green v. Marsden, 1 Dr. 646.
c. If the legatee is unmarried at the time, but the testator shows that he contemplates her marriage, and expressly wishes to guard against the claims of a future husband, the same effect will follow. Ex parte Killick, 3 M. D. & De G. 480; In re Tarsey's Trust, L. R. 1 Eq. 561.
d. So, too, if a trust is created confined to the particular gift, and no other motive for it is discernible. Adamson v. Armitage, 19 Ves. 416.
But the mere interposition of trustees will not give the word the force of separate if the trust is created for the general purposes of the will, and not confined to the particular gift. Massy v. Rowen, supra.
8. It is clearly settled that a married woman may be Restraint restrained from anticipating the rents and profits of real uipatianti
of estate and the income of personalty given to her separate
A restraint upon anticipation applicable to the rents of real estate devised to a married woman in tail does not prevent her from enlarging the estate tail to a fee with her husband's consent. Cooper v. Macdonald, 7 Ch. D. 289.
The case would probably be the same if the restraint upon anticipation were expressly applied to the corpus. Cooper v. Macdonald, supra.
A married woman entitled to real estate for life to her separate use without power of anticipation, with a testamentary power of disposition, may release her power under the Act for the abolition of fines and recoveries. Heath v. Wickham, 5 L. R. Ir. 285. In the case of a restraint upon anticipation applied to Restraint
applied to the corpus of real estate, the effect appears to be to restrain
corpus of the married woman from disposing either of the income or
producing the corpus during coverture except by will. Baggett v. incoine. Meux, 1 Coll. 138; 1 Ph. 627.
The same rule applies to a fund of personalty producing
income given to a married woman for her separate use without power of anticipation. In re Ellis's Trusts, 17
Eq. 409. Restraint In the case of a fund not producing income, such as a upon anticipation of pecuniary legacy, or a share of residue directed to be conproperty verted, given to a married woman for her separate use not producing without power of anticipation, the restraint upon anticipaincome.
tion has recently been held to be of no effect. In re Croughton's Trusts, 8 Ch. D. 460; see Re Sykes's Trusts, 2 J. & H. 415.
This decision appears to be conflicting with Re Sarel, 4 N. R. 321; 10 Jur. N. S. 876; Re Gaskell's Trusts, 11 Jur.
N. S. 780. Deter- The restraint upon anticipation attaches only to the mines with coverture, separate estate, and therefore determines with coverture.
Barton v. Briscoe, Jac. 603; Jones v. Salter, 2 R. & M. 208;
But if nothing is done with the property in the meantime it revives on future coverture: Tullett v. Armstrong, 1 B. 1; 4 M. & Cr. 390; Scarborough v. Borman, 1 B. 34; 4 M. & Cr. 378; Re Gaffee, 1 Mac. & G. 541 ; unless the restraint is confined to marriage with a particular husband by name. Morris v. Morris, 4 Dr. 33; Hawkes v. Hub
. buck, 11 Eq. 5; see In re Molyneux's Estate, I. R. 6 Eq. 411.
But a sale or conversion of the property destroys the
separate use. Wright v. Wright, 2 J. & H. 647. What Difficulties have sometimes arisen as to what words are words create a necessary to create a restraint on anticipation. restraint
A direction that there is to be no sale or mortgage of upon anticipation.
the estate devised or the rents arising from it during the life of the devisee, amounts to a restraint on anticipation. Baggett v. Meux, 1 Coll. 138; 1 Ph. 627; Goulder v. Camm, 1 D. F. & J. 146; Steedman v. Poole, 6 Ha. 193.
The same has been held of a direction that the receipts
of the devisee alone, after the payment of the rents devised shall have become due, should be sufficient discharges. Field v. Erans, 15 Sim. 375; Baker v. Bradley, 7 D. M. & G. 597; White v. Herrick, 21 W. R. 454.
But a direction to pay to the legatee personally, or on her receipt alone, will not restrain anticipation. Re Ross's Trust, 1 Sim. N. S. 196; Wagstaf v. Smith, 9 Ves. 520, 524 ; Acton v. White, 1 S. & St. 429.
When the legatee has a power to appoint the accruing rents, but not by way of anticipation, and in default of appointment there is a gift to her for her separate use, the restraint upon anticipation applies only to the exercise of the power. Barrymore v. Ellis, 8 Sim. 1 ; Medley v. Horton, 14 Sim. 222.
But if the gift in default of appointment is followed by a receipt clause applied to the same rents as those she has power to appoint, the restraint upon anticipation will extend to the whole gift. Moore v. Moore, 1 Coll. 54; Brown v. Bamford, 1 Ph. 620.
LIMITATIONS BY WAY OF REMAINDER--DIVESTING.
WHAT CANNOT BE GIVEN OVER.
In some things nothing less than an absolute interest
can be given. Remainder There can be no remainder in the strict sense of the in chattels.
word of chattels. At law a grant of chattels for life vests the whole legal interest in the tenant for life.
This rule, however, does not apply to gifts by will. It has long been settled that under a gift by will of a term to A. for life, and after his death to B., or to the children of A., the legal interest passes by way of executory devise to the person entitled under the will on the death of the tenant for life. Manning's Case, 8 Rep. 94 b; Lampet's Case, 10 Rep. 46 b; Stevenson v. Mayor of Liverpool, L. R. 10 Q. B. 81.
In some cases the nature of the property is such as not
to allow of successive limitations; thus : Consum
Things quæ ipso usu consumuntur cannot be given over, articles unless they form part of a stock-in-trade. Randall v. cannot be given over.
Russell, 3 Mer. 190"; Andrew v. Andrew, 1 Coll. 690 ;
Even in the case of stock-in-trade if the tenant for life is not to be liable for depreciation he takes absolutely. Breton v. Mockett, 9 Ch. D. 95.