Restraint upon anti

not pro

income given to a married woman for her separate use without power of anticipation. In re Ellis's Trusts, 17 Eq. 409.

In the case of a fund not producing income, such as a cipation of pecuniary legacy, or a share of residue directed to be conproperty verted, given to a married woman for her separate use without power of anticipation, the restraint upon anticipation 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.

ducing income.

Deter

mines with

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.

The restraint upon anticipation attaches only to the coverture. separate estate, and therefore determines with coverture. Barton v. Briscoe, Jac. 603; Jones v. Salter, 2 R. & M. 208; Woodmeston v. Walker, 2 R. & M. 197.

What words

create a restraint

upon anti

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. Hubbuck, 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.

Difficulties have sometimes arisen as to what words are necessary to create a restraint on anticipation.

A direction that there is to be no sale or mortgage of cipation. 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. Evans, 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; Wagstaff 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.

Remainder in chattels.

Consumable articles cannot be given over.

CHAPTER XXXVI.

LIMITATIONS BY WAY OF REMAINDER-DIVESTING.

WHAT CANNOT BE GIVEN OVER.

IN some things nothing less than an absolute interest can be given.

There can be no remainder in the strict sense of the 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:

Things quae ipso usu consumuntur cannot be given over, unless they form part of a stock-in-trade. Randall v. Russell, 3 Mer. 190; Andrew v. Andrew, 1 Coll. 690; Groves v. Wright, 2 K. & J. 347; Bryant v. Easterson, 7 W. R. 298; 5 Jur. N. S. 166; Phillips v. Beal, 32 B. 25 ; Cockayne v. Harrison, 13 Eq. 432; see Re Hall's Will, 19 Jur. 974.

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.

be no re

Absolute interests can of course not be limited over by There can way of remainder; thus a devise, if A. dies without heirs, mainder after a prior devise to A. in fee, is void. Tilbury v. Tar- absolute but, 3 Atk. 617; 1 Ves. sen. 88.

And in the same way absolute interests in personalty cannot be given to several persons in succession. Byng v. Lord Strafford, 5 B. 558.

after an

interest.

invalid in

A gift over, which would be invalid supposing the prior A gift over legatee survives the testator, does not become valid by his itself does death in the testator's lifetime.

not become valid by

of the death of the prior

fore the

Therefore, a gift of personalty to A. and the heirs his body, remainder to B., lapses by A.'s death in the legatee betestator's lifetime. Harris v. Davis, 1 Coll. 416; see testator. however, In re Stringer's Estate; Shaw v. Jones-Ford, 6 Ch. D. 1.

So, too, a gift of consumable articles to A. for life, remainder to B., lapses by A.'s death before the testator. Andrews v. Andrews, 1 Coll. 690.

so much as

There can be no gift over of so much as a legatee does Giftover of not dispose of where an absolute interest has been given a legatee to the legatee. Watkins v. Williams, 3 Mac. & G. 622; does not dispose of Henderson v. Cross, 29 B. 216; Bower v. Goslett, 27 L. J. is void. Ch. 249; 6 W. R. 8.

Nor can there be a gift over of what remains after payment of the debts of a legatee to whom an absolute. interest is given. Perry v. Merritt, 18 Eq. 152.

However, a gift at the legatee's death of whatever remains after a gift to the legatee indefinitely may be construed as a disposition of the residue at the legatee's death, so as to cut him down to a life estate. Constable v. Bull, 3 De G. & Sm. 411; Adams' Trust, 14 W. R. 18; Bibbens v. Potter, 10 Ch. D. 733.

after a life

And if a fund is given to a person expressly for life, Gift over with a power of disposing of it during her life or by will, interest, a gift of it after the death of the donee of the power

with power

tion,

of disposi is good, so far as she does not exercise the power Pennock v. Pennock, 13 Eq. 144; In re Thomson's Estate; Herring v. Barrow, 13 Ch. D. 144; 14 ib. 263; In re Stringer's Estate; Shaw v. Jones-Ford, 6 Ch. D. 1; see Re Brook's Will, 2 Dr. & S. 362.

Legal remainder and executory interests.

Incidents of re

LIMITATIONS DISTINGUISHED.

Limitations (excluding immediate limitations of particular estates) fall most naturally into limitations disposing of property in which partial or contingent interests have been previously given, and limitations varying and rearranging previous dispositions.

A legal remainder of freehold must be supported by a previous estate of freehold, otherwise it can only be supported as an executory devise.

And as no limitation can be a remainder following upon an estate less than an estate for life, so no limitation can be a remainder following upon a determinable fee, or any greater estate. Fearne, C. R. 225; Seymor's Case, 10 Co. 95, b.

But where an estate can take effect as a remainder, it will never be construed an executory devise or springing use: Carwardine v. Carwardine, 1 Ed. 27; Goodtitle v. Billington, Dougl. 725; Fearne, C. R. 386; the reason given being that "executory interests, not by way of remainder, unless engrafted on an estate tail, cannot be barred, and consequently there is a tendency in such interests to a perpetuity, which is contrary to the policy of the law." Smith's Ex. Dev. 71.

Contingent remainders can no longer fail by forfeiture, mainders. surrender, or merger, but (except in cases within 40 & 41 Vict. c. 33) they will fail by the failure of the particular estate of freehold, before the remainder is ready to come into possession. Rhodes v. Whitehead, 2 Dr. & Sm. 532;