206, case which gave rise to these observations, Lord Leigh being seised in possession of estates in several counties, devised them to trustees, for various purposes, for a term of years, for payment of his debts, and other purposes, which had been all satisfied; and subject to the term he gave those estates to certain individuals for their lives, and to their issue male after their deaths; and on failure of those limitations, to the person who should answer the description of the nearest of his kindred, being male, and of his name and blood. The plaintiff alleged that all the former limitations were spent, and that he was the person who answered this description, and was therefore now entitled to the estates; and the relief he asked by his bill was, that he might not be prevented, by any use which might be made of that term, from asserting his title at law. The defendant pleaded what was in substance a plea of fine and non-claim; and Sir Anthony Hart held, that in such a case this particular species of defence could not be made, and overruled the plea, on the ground that the validity of the fine could not be finally determined in a court of equity. In point of fact, the question involved by the plea was, whether the legal title was in the plaintiff or defendant, and consequently the termor was a mere stake-holder for the party who might succeed in establishing his title at law. Where the right to the inheritance has been lost, as, for instance, by fine and non-claim, equity follows the law, and does not consider the person who has lost the inheritance to be entitled in equity to claim the term, which is attendant upon it. Thus, 12 Sim. & Stu. in Reynolds v. Jones1, a trustee, of a term for the payment of debts, having purchased the inheritance from the tenant for life, and had it conveyed to him by fine and feoffment, and had the term assigned to a trustee to attend, and the remainder-man having neglected to claim for five years, it was held, that his right to the inheritance being gone, he could not claim the benefit of the term; and the fact of the purchaser being trustee made no difference. The same principle applies where a party has lost his title to the property by adverse possession; and in such a case equity will not interfere to restrain the party who has acquired a title under the Statute of Limitations from setting up an outstanding term to Jermy v. Best, defeat an ejectment brought by the other party 2. 1 Sim. 373. It has been observed, that equity will not interfere to restrain a purchaser for consideration without notice from using an out standing term of which he has possessed himself. This observation may be illustrated by the following case: In Goleborn v. Alcock1, a testator devised an estate to several persons for their 12 Sim. 552. lives successively, with power to grant leases under certain restrictions. The first tenant for life granted a lease to a person, who had no notice of the power, or that the lessor was tenant for life only. A subsequent tenant for life brought an ejectment against the lessee, on the ground that the lease was not according to the power. On a bill filed by the plaintiff at law, the court refused to restrain the lessee from setting up an old outstanding term created by the testator. Trusts for the separate use of married women.]—Husband and wife being at law one person, or rather the legal rights and capacities of the wife to sue for, and enjoy, property being entirely merged in those of the husband, she is incapable of any separate dominion over property. All her real estate belongs to her husband during the marriage, and, in certain cases, in the event of his being the survivor, for the further period of his life, and also all her personal property, on condition of his reducing it into possession during the coverture. In times comparatively recent, the court of Chancery succeeded in establishing a different doctrine, and, after a considerable struggle2, held, that, in equity, property might be so given as to vest in her alone, to the entire exclusion of her husband. The way in which this is ordinarily effected is by giving her a separate estate for life, with a power, by deed or will, to appoint the corpus. It is not necessary that any particular mode of disposing of the corpus of the estate or fund should be prescribed; and, consequently, where it is given to her separate use in general terms, as, in the instances presently to be noticed, she will take an estate for her life for her separate use, and may dispose of the corpus estate or fund in any manner she pleases. 2 Harvey v. Harvey, 1 P.W. 125. In order to create a separate estate in the wife, no particular form of words is necessary. It is sufficient if it appear, that it was the intention to exclude the husband, and give the wife a separate interest. A simple gift to the wife will not effect this purpose,a gift to the wife being a gift to the husband, as well in equity as at law. So, also, is a gift to the wife for "her use, "or for "her own use," or for "her use and benefit," or for "her own use and Tyler v. Lake, benefit 3." In none of these cases are there any words clearly im 4 Sim. 144; S. C. 2 Russ. porting an intention to exclude the husband. To have that effect, & Myl. 183. 1 1 Kensington v. Dollond, 2 Myl & Kee. 184. * Adamson v. Armitage, 19 Ves. 416. 3 Pritchard v. Ames, 1 Turn. 222. 4 Wagstaff v. Smith, 9 Ves. 520. 5 Margetts v. Barringer, 7 Sim. 482. • Johnes v. Lockhart, 3 Bro. C. C. 383. Woodman v. Horsley, cited Bennett v. 8 Graham v. 125; Bennett v. Davis, 2 P. W. 316. 10 Willats v. Cay, 2 Atk. 67. "Francis v. Wigzell, 1 Madd. 261. the intention must be unequivocally expressed1; as, where the gift was to a married woman "for her own sole use and benefit 2; ' "for her own use and at her own disposal3;" " for her own use, independent of her husband4," "for her own use and benefit, independent of any other person5;" to the husband and wife, "so as that the husband shall not dispose of it without the wife's consent 6;" that "the wife's receipt shall be a sufficient discharge notwithstanding her coverture 7." Jewels and trinkets given to the wife by the husband's father on her marriage with his son, are ipso facto considered as a gift to the separate use of the wife. So also if they be given to her by a stranger during the coverture, or even by the husband, unless he expressly give them to be worn as ornaments of her person only, in which case they are merely paraphernalia 8. It was formerly doubted whether property could be given to the separate use of a married woman without vesting it in trustees; but it is now clearly settled, that where there are no trustees, the husband shall be deemed a trustee for his wife9. The way in which the settlement is usually made is by a gift to trustees upon trust, to pay the dividends and interest to the wife for her separate use during her life, and after her death, upon trust for such person or persons as she shall by deed or will appoint; so that she has a vested interest absolutely during her life, with a power to dispose of the capital fund subject to her life estate. A married woman being, quoad her separate estate, considered as a feme sole 10, it is competent for her, like any other owner of property, to sell or charge her life interest in the same manner as if she were single; and if she have a power of appointing the capital fund by deed or will, she may also during her lifetime absolutely dispose of or incumber it at her discretion; if she have only a power of appointing by will, she cannot of course make an effectual disposition of it in her lifetime. Where the instrument under which a married woman acquires separate property enables her to dispose of the corpus in her lifetime, but prescribes the mode of disposition, as by deed signed and attested, it was formerly thought, that she could only part with, or charge it in the mode and form prescribed 11; but it is now established, that any security given by a married woman, having separate property, will charge that property, although no reference be made to it. In Murray v. Barlee1, Sir L. Shadwell observes, "that a court of equity, by securing to a married woman property that is settled to her separate use, gives her benefits by subjecting it to her general disposition, and by freeing it from her husband's control; but at the same time it does not place her in a worse situation in any respect than she would be otherwise in at law. It leaves her unaffected by every contract and liability, except when she does any act affecting her separate property, in which case the court holds her property to be bound, but leaves her person free." It being clear, therefore, that a married woman can alien or charge her separate estate, much of the benefit intended to be derived from this separate provision was defeated. The design of such a provision is of course principally to protect her against the extravagance or improvidence of her husband, and to insure a provision for herself and family in the event of the husband becoming bankrupt, insolvent, or otherwise unable to provide for them. However, as soon as it was established that she could alien her separate estate, it became obvious that she would be liable to be influenced by her husband to dispose of or charge it, to relieve him from any embarrassments into which he might fall; and that thus, in the very contingency in which it was designed that her separate estate should be a provision for herself and family, it would be disposed of to meet the extravagance or misfortunes of her husband. To meet this difficulty, Lord Thurlow, in the case of Miss Watson's settlement, of which he was a trustee, introduced into the clause, directing the interest, &c., of the settled estate to be paid to her separate use for life, a proviso, expressly restraining her from anticipating her life estate, or any way disposing of or charging it; upon this sort of reasoning, that a feme covert, having a power to alien, is a mere creature of equity, to the extent to which the settlement constitutes her a feme sole, and no further, and therefore he thought that the court might modify the power of alienation by such a clause as that now under consideration2. Lord Alvanley subsequently concurred in thinking it a valid clause3; and in a late case, Lord Eldon4, after observing, that, "for many years after he entered the profession, no such thing was known as a clause of restraint upon the alienation of a wife's separate property by way of anticipation," and Mer. 487. 2 Parkes v. White, 11 Ves. 221. 3 Sockett v. Wray, 4 Bro. C. C. 483. Jackson v. Hobhouse, 2 1 And see Jones v. Harris, 9 Ves 486; Brandon v. Robinson, 18 Ves. 434. adverting to the facts above stated, adds, "it is too late now to contend against the validity of such a clause1." On the faith of these authorities, it is to be presumed, rather than on the strength of Lord Thurlow's reasoning, it became the general impression of lawyers, that, under a trust for the separate use of a woman, with a proviso against anticipation, the income was inalienable during her life, whether married or sole, at the time of the gift taking effect, and, if then married, whether she continued so during her life or not; and settlements both by deed and will were for many years universally drawn upon this supposition. Till within a very recent period, it was considered that a settlement of property upon a woman, made in this form, secured to her an estate inalienable for her life; and that the settlement was equally effectual for this purpose, whether she was or was not married at the time it was made; and whether, being then married, she did or did not afterwards become discovert; in short, that, whether married or single, she could not anticipate her income. The effect of the recent decisions, however, shews that this opinion was not tenable; and the result of them may be shortly stated as amounting to this, that such a clause is inoperative to prevent alienation if the woman be unmarried at the time of the settlement taking effect, which, in the case of a will, would be at the testator's death; or, if being then married, she should afterwards become single; and that the only case in which such a settlement is available, is where a woman is married at the time of its taking effect; and even in this case it remains operative only so long as she continues married. Upon the clause under consideration, the recent cases have raised two points: 1st, That the proviso against anticipation is void, if the woman be unmarried at the time of the gift taking effect, or, if she be then married, that it ceases to operate upon her becoming single; and 2nd, That a trust for the separate use of a woman is wholly inoperative, unless created in favour of a woman married at the time, or in contemplation of an immediate marriage. The first of these propositions may be considered as settled; the latter is still the subject of much controversy. The latter would appear, indeed, to be a necessary deduction from the former; but, as they have been generally treated as distinct and independent points, they will be here so considered. Before |