Gambar halaman
PDF
ePub

son."

and by a wife to her husband, alone or jointly with another per- Acknowledg

ment

by Married (2) “This section applies only to conveyances made after the Women. commencement of this Act” (Jan. 1st, 1882).

trade.

a settlement.

[ocr errors][ocr errors]

A husband can before or after marriage acquiesce Separate in his wife's carrying on a separate business, in which case she has complete disposing power over the business and stock in trade, subject to the rights of the husband's creditors in case there was no valuable consideration given for the husband's acquiescence: Ashworth v. Outram (C. A.), 5 Ch. D. 923 ; see also Rop. Hus. and W. vol. 2, p. 165.

(3) By her equity to a settlement. This right (3) Equity to
arose from the rule that he who seeks equity must
do equity, and on this principle the Court of
Chancery stipulated as a price for its assistance, that
the husband seeking to recover his wife's equitable
choses in action should, out of the property recovered,
make a provision for his wife and children : 1 Rop.
H. and W. 257. See also Milner v. Colmer, 2 P. Wms.
639; Sturgis v. Champneys, 5 My. & Cr. 197. This
right of the wife originally seems to have extended
only to cases in which the husband, or persons
claiming under him, were plaintiffs. See Bosvil v.
Brander, 1 P. Wms. 458. But the leading case of
Lady Elibank v. Montolieu (5 Ves. 737) established
the rule that a wife might come into court to
assert her right to a settlement of property re-
duced into possession during the coverture by her
husband. See also Duncombe v. Greenacre, 2 De G.,
F. & J. 509; S. C., 9 Jur., N. S. 175; Giacometti v.
Prodgers, L. R., 8 Ch. 338; Ruffles v. Alston, L. R.,
19 Eq. 539. The right extends so as to bind
the husband's assigns for valuable consideration,
Macaulay

v. Philips, 4 Ves. 15; and is enforceable
even in case of his insolvency or bankruptcy :
Burdon v. Dean, 2 Ves. jun. 607; Oswell v. Propert,
ibid. 680; Sturgis v. Champneys, 5 My. & Cr. 97.
The right, however, will not prevail against an
assignee for value of the wife's equitable life interest,
Tidd v. Lister, 3 De G., M. & G. 857; Durham
v. Crackles, 8 Jur., N. S. 1174; nor against her

1

Women.

.

Acknowledg. creditors in respect of debts incurred before marby Married riage: Barnard v. Ford, L. R., 4 Ch. 247.

This doctrine of the equity to a settlement was To what pro- applied by the Court of Chancery to all kinds of right attaches. Property which by any means became subject to its

jurisdiction. The right has consequently been held
to attach, not only to personal property vested in
trustees for the benefit of a married woman, but also
to her equitable interest in real estate: Wortham v.
Pemberton, 1 De G. & S. 644; Barnes v. Robinson,
11 W. R. 276; S. C., 9 Jur., N. S. 245; and chattels
real: Hanson v. Keating, 4 Ha. 1. In Sturgis v. Champ-
neys (ubi supra), the assignee of an insolvent debtor,
whose wife was entitled for life to real property,
being obliged to come into equity to enforce his
title to the rents and profits during the joint lives of
the husband and wife, in consequence of the legal
estate being outstanding in mortgagees, it was held
that the assignee was bound to make a provision for
the wife out of the rents and profits. In the case of
Gleaves v. Paine, 1 De G., J. & S. at p. 93, Lord West-
bury, C., remarked, that although the decision in
Sturgis v. Champneys, being a decision of a Lord
Chancellor, must be followed, having been established
so long, he was not disposed to extend it any fur-
ther than the actual decision went, and that, as in
that case the assignees were plaintiffs, it would
extend the rule very much to recognise the doc-
trine that a wife might come into court asking a
settlement of real estate belonging to the husband
against the husband's assignee, which the assignee
could render available without resorting to a court
of equity. A married woman has the same equity
to a settlement in respect to a life interest as in
respect of property to which she is absolutely en-
titled: Wilkinson v. Charlesworth, 10 Beav. 324 ;

Taunton v. Morris (C. A.), 11 Ch. D. 779; but the
right will not attach to arrears of past income of real
or leasehold property which the husband has as-
signed to a particular assignee: Re Carr, L. R., 12
Eq. 609; nor to property for the recovery of which
the husband alone has the right to sue : Brooke v.
Hickes, 12 W. R. 703 ; nor to property in which the

ment

Women.

amount of the

settled.

husband and wife have a joint interest: Ward v. AcknowledgWard, 14 Ch. D. 506; Re Bryan, Godfrey v. Bryan, by Married 14 Ch. D. 516.

The right of a married woman to a settlement includes all property to which she becomes entitled, whether it vest in her before or after marriage: Barrow v. Barrow, 18 Beav. 529; and is enforceable as soon as the property in respect of which she claims the right is actually in possession, although not actually distributable: Re Robinson's Settled Estate, 12 Ch. D. 188.

The court will not generally require the whole of As to the the wife's fortune to be settled, but only a reason- wife's proable portion thereof: Beresford v. Hobson, 1 Madd. perty to be 362. The ordinary rule is that one-half of the fund will be ordered to be settled, and the other half will be allowed to go to the husband or his assigns : Jewson v. Moulson, 2 Atk. 417; Brown v. Clark, 3 Ves. 166; Spirett v. Willows, L. R., 1 Ch. 520. But the court will take into account the special circumstances of each particular case, and having regard to any settlement previously made, as to the amount of property of the wife already received by the husband, or to his conduct and position in life, will order such proportion as may seem proper to be settled : Green v. Otte, 1 Sim. & St. 250 ; Conington v. Gilliatt, 25 W. R. 69; Re Suggitt's Trusts, L. R., 3 Ch. 215. So where a husband had separated from his wife without sufficient cause and without having made adequate provision for her and her children, three-fourths of property bequeathed to the wife was ordered to be settled for their benefit, and the remaining fourth to be paid to the husband : Coster v. Coster, 9 Sim. 597. See also Walker v. Drury, 17 Beav. 482. And the Court has ordered the whole fund to be settled where it was very small: Re Kincaid's Trusts, 16 Jur. 106; S. C., 1 Dr. 326; Re Hooper's Trusts, 6 W. R. 824. Where the husband was insolvent, and there was no previous settlement: Francis v. Brooking, 19 Beav. 347; Re Cordwell's Estate, L. R., 20 Eq. 644; Taunton v. Morris (C. A.), 11 Ch. D. 779. See also Duncombe v. Greenacre, 29 Beav. 578. And where the husband has

ment

Women.

Form of settlement.

Acknowledg. been guilty of gross misconduct: Dunkley v. Dunkley, by Married 2 De G., M. & G. 390; Barrow v. Barrow, 5 De G.,

M. & G. 782; Re Ford, 32 Beav. 621.

The form of settlement proper to be adopted where the wife claims her equity was very fully discussed in Spirett v. Willows, L. R., 4 Ch. 407. In that case the trusts were declared to be for the wife for life, for her separate use, with a restraint on anticipation, with remainder for her issue as she should appoint (Oliver v. Oliver, 10 Ch. D.

( 765); and in default of appointment for all her children, or any her child, who, being sons or a son, should attain the age of twenty-one years, or being daughters or a daughter should attain that age or marry (Gent v. Harris, 10 Ha. 383; Francis v. Brooking, 19 Beav. 347); if any child should die in the wife's lifetime, having issue, such issue were to take, per stirpes, the share of the deceased child; the settlement contained the usual hotchpot, advancement, maintenance, and accumulation clauses, the power of advancement to be exercisable during the lifetime of the wife, with her consent in writing; the ultimate trust was in favour of the plaintiff, as assignee in bankruptcy of the husband. See also Croxton v. May, L. R., 9 Eq. 404; and Walsh v. Wason, L. R., 8 Ch. 482, where it was distinctly laid down that the ultimate trust will be in favour of the husband whether he survives the wife or not. See further, on the subject of the equity of married women to a settlement, Seton, Vol. II., Part I., pp. 672—680; 1 Dan. Ch. Pr. 121-137; and the notes to Murray v. Lord Elibank, 1 Wh. & Tud. L. C., Eq.

[ocr errors]

471 et seq.

Waiver of equity.

But the wife may wave her equity to a settlement by examination in court : Beaumont v. Carter, 32 Beav. 586; or by commission issuing from the Court: Tasburgh's Case, 1 V. & B. 507; and if the property has been made over to the husband before the action brought, the wife's equity is gone: Murray v. Lord Elibank, ubi supra. And under 20 & 21 Vict. c. 57, s. 1 (set out below, p. 249), the wife may at any time, whether before or after the property has fallen into possession, release or extinguish her equity by acknowledged deed.

ment by Married Women.

(4.) The savings which a married woman makes Acknowledgout of her separate property, and the investments of them, including land, belong to her for her separate use : Gore v. Knight, 2 Vern. 535; Muggeridge v. Savings.

. Stanton, 1 D., F. & J. 107; Duncan v. Cashin, L. R., 10 C. P. 554; Engelback v. Nixon, ib. 645 : Hughes 5. Wells, 9 Hare, 749.

(5.) Separate property conferred on the married woman by statute.

By 20 & 21 Vict. c. 85 (the Divorce Act, 1857), Stat. 20 & 21 a wife deserted by her husband, and obtaining a protection order under sect. 21, is, as from the date of and during such desertion, placed in the like position in all respects with regard to property and contracts, and suing and being sued,” as she would be under that Act if she had obtained a decree of judicial separation. By sects. 25 and 26 it is enacted that

Vict. c. 85.

Sect. 25. “In every case of a judicial separation, the wife shall, In case of from the date of the sentence and whilst the separation shall

judicial

separation the continue, be considered as a feme sole with respect to property of wife to be every description which she may acquire or which

considered a may come to or

feme sole with devolve upon her; and such property may be disposed of by her in respect to all respects as a feme sole, and on her decease the same shall

, in property she

may acquire, case she shall die intestate, go as the same would have gone if her &c. husband had then been dead : provided, that if any such wife should again cohabit with her husband, all such property as she may be entitled to when such cohabitation shall take place shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband while separate."

Sect. 26. "In every case of a judicial separation, the wife Also for shall, whilst so separated, be considered as a feme sole for the purposes of purposes of contract, and wrongs and injuries, and suing and suing. being sued in any civil proceeding; and her husband shall not be liable in respect of any engagement or contract she may have entered into, or for any wrongful act or omission by her, or for any costs she may incur as plaintiff or defendant: provided that where upon any such judicial separation alimony has been decreed or ordered to be paid to the wife, and the same shall not be duly paid by the husband, he shall be liable for necessaries supplied for her use : provided also, that nothing shall prevent the wife from joining, at any time during such separation, in the exercise of any joint power given to herself and her husband."

« SebelumnyaLanjutkan »