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Whether deeds in exercise of statutory powers
Vict. c. 38.
Acknowledg. s. 46 (c), leases can be made by acknowledged deed. by Married Where the lease was not acknowledged, and did not
comply with the Settled Estates Act, but the wife had acquiesced in it after the husband's death, her executors were bound: Toler v. Slater, 3 Q. B. 42. The Settled Estates Act, 1877, gives no power to married women except under the supervision of the Court; but her husband has power under that Act to lease his wife's estates settled or otherwise. See sect. 46 of that Act.
It seems doubtful whether, under sect. 61 of the Settled Land Act (vide post, sub tit. SETTLEMENTS),
a married woman, tenant for life, not entitled require to her separate use, can exercise the powers conacknowledg. ferred upon her by the Act without acknowledgment. . Stat. 45 & 46 This is a very important question for the purchaser.
It may be said that, in the absence of any statutory exception from the general rule, a married woman and her husband cannot convey except by acknowledgment. But it should be considered that the powers conferred upon the married woman are entirely statutory and artificial; that no protection from her husband is required for the purchase-money, which must be invested under the Act; that married women can exercise powers of appointment without acknowledgment when the power does not forbid it; and, finally, that the 5th sub-section gives her power to execute, make, and do all deeds, instruments and things necessary or proper for giving effect to the provisions of the section. Mr. Wolstenholme is of opinion (Settled Land Act, p. 68) that acknowledg. ment is unnecessary under the section; but, with all deference to his great authority, it is conceived that, until there is a judicial decision on the point, a pur; chaser could not safely accept an unacknowledged deed from the married woman vendor and her husband.
The wife's chattels real do not either at law or in equity vest in the husband absolutely, but on his death, her chattels real, if undisposed of by him during the coverture, survive to her. The husband cannot therefore dispose of them by his will, but during
(c) The question of leases under statutory powers will be fully considered in a subsequent volume of this work, sub-tit. LEASES.
coverture he is entitled to the rents and profits, and Acknowledg. can surrender them in deed or in law, and other. by Married wise dispose of them inter vivos, and they are liable to execution for his debts: Co. Lit. 46 b, 351 a, n. 1; Bac. Abr. tit. Baron and Feme (C.), 2; Donne v. Hart, 2 Russ. & My. 360. But the husband is only entitled to deal with such chattels real as could by possibility vest during the coverture, including contingent interests : Duberly v. Day, 16 Bea. 33; Donne v. Hart, 2 Russ. & My. 360. On the death of the wife in his lifetime, the husband becomes entitled to her chattels real, whether settled to her separate use or not. If they were vested in him during marriage, he is entitled to them in his marital right, otherwise as administrator to his wife : Wms. on Esors., 8th ed., p. 701.
At common law all the chattels personal of the Rights of the wife belonging to her at the time of her marriage, or the wife's falling into possession during the coverture, became personal
property. absolutely the property of the husband : Co Litt. 300 a; Bac. Abr. tit
. Baron and Feme (C.) 3. He might dispose of them by deed or otherwise in his lifetime, or by his will. "They were subject to his debts, and in case of his intestacy, they would form part of his general personal estate out of which his widow would merely be entitled to a distributive share, as she would be out of property which had originally been her husband's.
The husband was also entitled to all the wife's Choses in choses in action whether legal, e.g., debts secured by bonds or promissory notes; or equitable, such as legacies and residuary interests under settlements : provided he would reduce them into possession during the coverture. Otherwise, if he survived her, he or his legal personal representatives after his death, on taking out administration of the wife's estate, were entitled to possession of them absolutely after payment of her debts: Stat. 29 Car. 2, c. 3, s. 25. But if she survived him, and the choses in action had not been reduced into possession, she was entitled to them : Co. Litt. 351 b. And therefore, before Malins' Act (20 & 21 Vict. c. 57), set out below, p. 249, neither the husband, the wife, nor the
Acknowledg. husband and wife together, could dispose of the by Married wife’s reversionary personal property: Purdew v.
Jackson, 1 Russ. 1; Honner v. Morton, 3 Russ. 65. It seems doubtful whether the wife can bind her reversionary personal property by election: compare Wall v. Wall, 15 Sim. 513, with Williams v. Mayne, I. R., 1 Eq. 519; and Smith v. Lucas, 18 Ch. D. 531. Where the wife had a life estate not settled to her separate use, it could only be disposed of under the Act: Stiffe v. Everitt, 1 M. & C. 37; Harley v. Harley, 10 Hare, 325; In re Godfrey's Trusts, L. R., 1 Eq. 531 ; but see Fitzgerald v. Fitzgerald, L. R., 2 P. C. 83, where Hore v. Becker, 12 Sim. 465, was disapproved. A married woman cannot, by obtaining the assignment of all other interests in the property, gain a disposing power over it, for equity will not allow it to merge for the purpose of defeating the object of the restriction : Whittle v. Henning (on appeal), 2 Ph. 731. The scope of the 20 & 21 Vict. c. 57 (Malins' Act), is very limited. No disposition can be made under it unless the reversionary property is held under an instrument made after the 31st December, 1857, so that reversionary property coming to a married woman on intestacy is not within the Act. No disposition can be made of property to which the married woman is entitled under her marriage settlement; nor if the married woman is restrained from alienating such interest by the instrument creating it (a).
But the husband's rights in his wife's equitable choses in action are subject to her equity to a settlement, as to which see below, p. 217.
(d) The report of the case of Clarke v. Green (2 H. & M. 474), is unsatisfactory. It does not appear that V.-C. Wood's attention was called to the words of the Act. In that case a married woman, being entitled to a reversion under the will of a testator who died in 1835, made a settlement of it on herself, with a proviso that the husband, if he survived, should become absolutely entitled. The question appears to have been raised whether the married woman could dispose of her right of survivorship. But it is submitted that whether such right accrued to her under the marriage settlement, or under the will, she could not dispose of it under the Act; for the will was an instrument made before the date of the Act.
But the difficulties which the common law placed Acknowledgin the way of a married woman's power of disposition by Married were got over in two ways :-(1) By means of powers;
; (2) by the creation of a separate estate for her, independent of her husband's debts, control, and engagements.
1. A married woman, unless forbidden by the Powers. terms of the power, may exercise a power without the concurrence of her husband : Sugd. Powers, 8th ed. 153. A married woman infant may exercise a power of appointment by deed: Re D'Angibau, Andrews v. Andrews (C. A.), 15 Ch. D. 228. Where a power was given to a feme sole followed by trusts for the benefit of herself and any future husband, it was held that she might validly exercise the power during marriage: Wood v. Wood, L. R., 10 Eq. 220. The creation and exercise of powers will be treated of below, under tit. POWERS. A married woman may release or extinguish any power which may be vested in, or limited or reserved to her in regard to any lands of any tenure, or money subject to be invested in the purchase of lands, see stat. 3 & 4 Will. 4, c. 74, s. 77, and also of any reversionary personal estate, stat. 20 & 21 Vict. c. 57, s. 1, as effectually as if she were a feme sole. Before the Conveyancing Act, 1881, s. 52, a collateral power could not be extinguished or released, nor before the Conveyancing Act, 1882, s. 6, could a power be disclaimed. It is submitted that the Acts give a married woman no power to do either except by acknowledged deed. See Rex v. Harrold, L. R., 7 Q. B. 361; Chorley v. Lings, L. R., 4 C. P. 374.
2. The wife may acquire separate property in the wife may various ways :-(1) By declaration of trust." A trust acquire sepa
rate property: for the “ sole and separate use,” or “ solely for her (1)By declaraown use," or "solely and entirely for her own use tion of trust. and benefit,” or “ for her own benefit independent of any other person,” are sufficient to create such a trust." The best form is upon trust for C. (or simply to C.)
" for her separate use" (e). Whether the trust (e) For other forms held good and otherwise, see Lewin on Trusts, 7th ed., p. 644 et seq. `In instruments (other than settlements, infra, p. 226), made since the Act, see below, p. 226 n. (1),
Acknowledg. be created in favour of a feme sole or of a feme covert by Married it will take effect on every subsequent marriage
(Tullett v. Armstrong, 4 M. & C. 390; 1 Bea. 1);
H. 647. (2) By deal.
(2) By dealings with her husband after marriage. ings with
The wife can contract with her husband in respect of her separate estate, and in respect of any
interest in property in which she has any interest independent of him, such as her reversionary, real, and personal property, or her dower(s). But in the case of real property and reversionary personal property not given to her separate use the wife cannot contract without acknowledgment: Pride v. Bubb, L. R., 7 Ch. 64; Cahill v. Cahill
, 8 App. Cas. 420. It was, until lately, very generally supposed that, in certain cases where the husband and wife were at arm's length,” she could bind such property by contract with him without acknowledged deed. But this was held to be bad law in the recent case of Cahill v. Cahill, ubi supra, where the whole question is fully
discussed. Conveyance By the Conveyancing Act, 1881, s. 50, it is husband and enacted that:
(1) "Freehold land, or a thing in action, may be conveyed by a person to himself jointly with another person, by the like means by which it might be conveyed by him to another person; and may, in like manner, be conveyed by a husband to his wife, property given to a married woman will become her separate property without the use of any such words.
f) See Married Women's Property Act, 1882, ss. 2 and 5, set out below, p. 225.