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under sect. 5.
and to introduce instead of the old equitable use Acknowledg.
The interpretation of the 5th section is much Reversions
(1) It has been held that, as a result of this Act, that when there is a bequest to a husband and wife and to a third person, the husband and wife, instead of taking only a moiety as one person in law, now take each one-third share; the wife's share being her separate property under the Act: Re Marsh, Mander v. Harris
, 24 Ch. D. 222. Another important result of this Act appears to be that a married woman, as regards property to which she is entitled as a feme sole, will be on the same footing as if she had no husband'living; and consequently, in case of her death intestate, her husband will take no interest in her realty as tenant by the curtesy, but her heir-at-law will tako directly, and immediately after her death. It must be borne in mind, as bearing on this question, that the title of the husband as tenant of the curtesy accrues, if at all
, during his wife's life upon the birth alive of issue of the marriage, and only becomes complete on her death. See Co. Litt. 29 b., and Hargreave's Notes. It has further been suggested that her personalty will go among her next of kin to the exclusion of the husband (see Wolst. Conv. Acts, p. 9); but it is difficult to believe that this can have been the intention of the legislature. Both questions must, however, before long, be settled by judicial decision.
Acknowledg• marriage, and died before it fell into possession, by Married James, V.-C., held that no title had accrued during
the marriage (k). If this is correct, one curious effect of the wording of the section is that a woman entitled in expectancy to a reversion in personalty, under sect. 7 of the Act of 1870 (which would not be her separate property until it fell into possession, Lane v. Oakes, 22 W. R. 709; 30 L. T. 726) will not be entitled to it under the 5th section of this Act, because the title accrued before the passing of the Act.
Another effect will be that if a woman married before the Act, was, at the time of marriage, possessed of a vested remainder liable to be divested by the exercise of a power, but which in default of appointment fell into possession after January 1st, 1883, such remainder will be outside the Act and will not be separate property : Re Jackson's Will, 13 Ch. D. 189. But if in the same case the power was exercised after the commencement of the Act the married woman would take under a new title, though she took the same interest, and in this case the property will
be her separate property: Sweetapple v. Horlock,
11 Ch. D. 745 (Jesseł, M. R.). Restraint on Where a restraint on anticipation is attached to auticipation, the separate property, there was, independently of
the recent statute, no means of disposing of the property. Neither by applying to the court, Robinson
Wheelwright, 6 De G., M. & G. 535, nor by means of the Fines and Recoveries Act, Baggett v. Meux, 1 Phill. C. C. 628, could the restraint be got rid of. The restraint on anticipation can be created by various forms of words; “ without power of anticipation” is the most simple, but a direction to pay 'to such persons as she shall after it has become due appoint,” or for her “sole, separate and inalienable use " is sufficient (1). Like the separate
(k) The other decisions, which may appear to have some bearing on the point, are Archer v. Kelly, 1 Dr. & Sm. 300; Brooks v. Keith, ibid. 462; Re Clinton's Trust, L. R., 13 Eq. 295; Re Michell's Trusts, 9 Ch. D. 5.
(1) See Lewin on Trusts, p. 663.
c. 18, s. 6.
use it will arise on every subsequent marriage of Acknowledgthe woman to whom it is applied, Tullett v. Arm- by Married strong (on appeal), 4 M. & C. 390 ; 1 Beav. 1, unless confined to some particular marriage: King v. Lucas (C. A.), 23 Ch. D. 712. It will not prevent a married woman from enlarging her estate tail where the restraint is on the life estate: Cooper v. Macdonald (C. A.), 7 Ch. D. 288, 300. It seems doubtful whether it prevents her being put to her election : Smith v. Lucas, 18 Ch. D. 531. By no ingenuity can property subject to such a restraint be disposed of during the coverture : Pike v. Fitzgibbon (C. A.), 17 Ch. D. 454, per James, L. J., at p. 459. And see the 19th section of the Married Women's Property Act, 1882, set out above p. 226.
The Settled Estates Act, 1877, sect. 50, enacts 40 & 41 Vict. (inter alia), that “no clause or provision in any settlement restraining anticipation shall prevent the court from exercising, if it shall think fit, any of the powers given by this Act.”
And by the Conveyancing Act, 1881, sect. 39: " (1) Notwithstanding that a married woman is restrained Power for from anticipation, the court may, if it thinks fit, where it appears interests of to the court to be for her benefit, by judgment or order, with her married consent, bind her interest in any property."
" (2) This section applies only to judgments or orders made after the commencement of this Act.”
There have already been several decisions on this section. In Hodges v. Hodges (20 Ch. D. 719),
. ) Fry, J., dissolved the restraint in order to pay the debts of a married woman past childbearing. In Tamplin v. Miller, W. N. (1882), 44; 30 W. R. 422, V.-C. Hall lays great stress on the fact that the power of the court is to be exercised only for the benefit of the married woman. But he allowed her to compromise a claim in an administration suit in spite of a restraint. However, in Re Warren's Settlement, W. N. (1883), 125, the Court of Appeal held that the court would not presume a woman to be past child-bearing, at any rate without security being given for the repayment of the money in case of issue. In this case the wife was fifty, and the
44 & 45 Vict. c. 41, s. 39.
court to bind
Acknowledg- husband fifty-four
age, and they had never by Married had any children.
Where there was no restraint on anticipation the married woman could in equity, independently of statute, dispose of her separate estate of every description inter vivos without the concurrence of her husband, and without acknowledgment, exactly as if she were a feme sole : Taylor v. Meads, 4 De G., J. & S. 597; 34 L. J., Ch. 203; Fettiplace v. Gorges, 1 Ves. jun. 46; 3 Bro. C. C. 8; Carington v. Parker, L. R., 4 Eq. 116. And now, under the Married Women's Property Act of 1882, she can dispose of her separate property created by the Act both at
law and equity. The legal A question arises which, if somewhat a narrow
one, is of great importance to the conveyancer,
amely, whether the married woman can dispose of the legal estate in separate property in existence before the Act without acknowledgment. Where the legal estate is vested in trustees no difficulty can arise. They must convey it according to the wishes of their cestui que trust, whether she is married or single. “ There is no distinction, in my mind,” said Jessel, M. R., in Peters v. Lewes Rail
. Co. (C. A.), 18 Ch. D. 429, “between a trustee for a married woman, absolutely entitled to her separate use and not restrained from anticipation, and a trustee for a man, p. 437. And where a woman has, during the marriage and since the Act, property given her by deed or will to her separate use, without any trustee being appointed, it is presumed that it will be within both sects. 2 and 5, and that her husband will no longer take the legal estate in her right. This view is confirmed by the . case of In re March, Mander v. Harris, 24 Ch. D. 222, stated above, p. 227. But it may be said that though sect. 1 (1) of the Act (ante, p. 225), applies to property coming within the Act, it does not alter the powers of a married woman over such part of her separate estate as was in existence before its commencement. Thus, suppose a married woman to have acquired property to her separate use before the Act passed, and that no trustees have been interposed, or that for some reason the legal estate
is not in the trustees (see Lewin, 7th ed., p. 193 Acknowledget seq.); clearly, until the Act passed, the legal estate by Married would be in the husband in right of his wife, and to pass it an acknowledged deed would be necessary. Then what is the effect of the passing of the Act ? Does it give the wife a new power of disposition ? Does it apply to separate property already in existence? It is submitted that it does. For the only intelligible and consistent construction of the Act is to put all married women having separate property on a level. And, on comparison with other sections of the Act, it appears that many (l) of them clearly
1 apply to separate property already in existence. Take, for instance, sect. I (3), which shifts the
i onus probandi as to contracting on the faith of separate property, and which must apply to separate property acquired before the Act, as well as to that acquired since. It is submitted, then, that where a married woman has real property which is held separately from her husband, however the separate property was created, she will, at any time after the Act, be able to dispose of the legal estate in it without his concurrence, and without acknowledgment; the effect of sect. 1 (1) being to enable the wife to dispose of the legal estate, before in the husband, as soon as the Act passed. But the purchaser who wishes for absolute security should insist on an acknowledgment, in such a case, until there is a decision on the point. This effect of the Act would also apply to personal property. Thus, suppose a testator bequeathed personalty to his widow for life, and after her death to his son and daughter as tenants in common, with a proviso that every female taking an interest under his will should take such interest to her separate use, and died, and the daughter married before the Act. Here the reversion would not be within sect. 5, and would, therefore, independently of sect. 1 (1), if it fell in during the marriage, belong to the husband at law, and he would hold it upon trust for his wife's separate use. But if before the death of the widow
(1) See sects. 1 (2), (3), (5), 10, 18, 20, 21, 23, 24.