has settled the whole fund (e). And in other cases, where ample provision has been already made for the wife and children, the Court has declined to order any settlement (ƒ).

equity to a

The wife is able, however, to waive her right to a Release of settlement on examination in Court at any time before settlement. a settlement (although it may have been previously claimed by her (g)) is actually executed, but not so as to affect any interest which the children may have previously acquired under agreement (h). And now, under 20 & 21 Vict. c. 57, she is able by deed acknowledged under the Fines and Recoveries Act, with the concurrence of her husband, to release or extinguish her right or equity to a settlement out of any personal estate to which she, or her husband in her right, may be entitled in possession under any instrument made after the 31st of December, 1857. It will be remarked that the Act makes no provision for enabling the wife to release her equity to a settlement out of personal estate derived under an intestacy.

Except in cases coming within the operation of the last-mentioned Act, the wife cannot deprive herself of her equity to a settlement otherwise than by examination in Court. Hence, a trustee having in his hands money belonging absolutely to a married woman, although he may safely pay it to the husband, is not bound to do so even at the wife's request, but may pay it into Court under the Trustee Relief Act, so as to enable the wife to assert her equity to a settlement (i). The wife's equity to a settlement is an obligation Equity to a fastened by the Court not upon the property, but on does not the right to receive it, and it is only when the property reversionary

See

(e) In re Cutler, 14 Beav. 220; In re Kincaid, 1 Drew. 326; Gent v. Harris, 10 Hare, 383; Duncombe v. Greenacre, 29 Beav. 578. also Coster v. Coster, 9 Sim. 602; Green v. Otte, 1 S. & St. 250; Gardner v. Marshall, 14 Sim. 575; Bagshaw v. Winter, 5 De G. & Sm. 466; Scott v. Spashett, 21 L. J. Ch. 349; Re Erskine's Trust, 1 K. & J. 302; Ward v. Yates, 1 D. & S.

80; Chapman v. Lamport, 8 W. R.
466; Smith v. Smith, 3 Giff. 121.

(f) Aguilar v. Aguilar, 5 Madd.
414; Spicer v. Spicer, 24 Beav. 365;
Re Erskine's Trust, 1 K. & J. 302.
(g) Baldwin v. Baldwin, 5 De G.
& Sm. 319.

(h) Ex parte Gardner, 2 Ves. sen.

671.

(i) Re Swan, 2 H. & M. 34.

settlement

attach to a

interest.

Wife's right to a settlement notwith

comes to be payable or transferable, that the obligation will be enforced. A settlement, therefore, cannot be claimed in respect of a reversionary interest so long as it remains reversionary (k).

The wife is entitled to this equity to a settlement, although she may be living separate from her husstanding she band (7).

may be living separate.

Again, this equity to a settlement exists as against her husband's assignees for a valuable consideration, and all other assignees, and also as against his creditors (m).

The wife has also an equity to a settlement in respect of a life interest in real or personal property, as against the trustee in bankruptcy of the husband (n), or as against the husband himself, in the event of her being deserted by him (0), but not as against a particular assignee for value of such life interest (p).

If, previously to marriage, the husband makes a settlement on his wife in consideration of her fortune, he would be entitled to the absolute possession of the equitable personalty of which she was then possessed (2). And if the settlement is made in consideration of the future as well as the present fortune of the wife, the title of the husband in respect of all her property would be good as against the wife's right to a settlement (). It is to be observed, however, that although such a purchase by the husband may entitle him to call for the whole of his wife's property, he must do so during the coverture, for if he should die in the lifetime of his wife without having reduced it into possession, it will survive to the wife (s).

If the wife dies before the husband, her children

cannot enforce an equity for a settlement after her death, unless a decree for this purpose has been made in her lifetime (t). And this is the case even if the wife commences an action in her lifetime, but dies before a decree (u).

The proper form of a settlement is for the wife for life with remainder to such of her children, by her present or any future husband, as shall attain twentyone, or being daughters marry, with usual clauses, and if no child, for the husband (x).

III. Trusts for the separate use of a married woman, either with or without a restraint on anticipation.

before recent

stitute a trust

estate.

Independently of the Married Women's Property Acts, what was equity has always recognised the right of a married necessary woman to the separate enjoyment of property, where it Act to conhas been given upon a trust for her separate use, or for separate where the language of the instrument of gift has shown use. the intention of the donor to be that she shall enjoy it independently of her husband. Thus, a bequest of Cases where stock to trustees in trust to permit a married woman to held to confer receive the income "independent of her husband" (y); separate" a bequest of residue to a married woman and her unmarried daughter in equal shares for their own use and benefit, "independently of any other person "(z); a gift of a legacy to a married woman "for her own use and at her own disposal " (a); a bequest to trustees in trust to pay the income to a married woman, for life, "her receipt to be a sufficient discharge" (b); a bequest of bonds and mortgages to a married woman, with a direction that they should be delivered up to her "whenever she should demand or require the

(t) Scriven v. Tapley, 2 Ed. 337; Murray v. Lord Elibank, 10 Ves. 84; De la Garde v. Lempriere, 6 Beav. 344.

(u) Wallace v. Auldjo, 2 Drew. & Sm. 216; 1 De G. J. & S. 643. (x) Spirett v. Willows, L. R. 1 Ch. 520; Suggitt's Trust, ib. 3 Ch. 215; Croxton v. May, ib. 9 Eq.

404; Walsh v. Wason, ib. 8 Ch.
482.

(y) Wagstaff v. Smith, 9 Ves.

520.

(z) Margetts v. Barringer, 7 Sim.

482.

(a) Prichard v. Ames, T. & R.

222.

(b) Lee v. Prieaux, 3 B. C. C.

Cases where the contrary

same" (c); and a bequest to a husband "for the livelihood of his wife" (d), have been held to confer a sepa

rate estate.

But a direction to pay the capital or income to a has been held. Wife" into her own proper hands for her own use and benefit "(e), or "to her own use and benefit" (f), or to her absolute use (g), or the words, "to be under her sole control" (h), or a bequest to a female and her assigns for her life for her and their own absolute use and benefit (i), have been held insufficient to create a trust for a wife's separate use. And in a case where a testator devised lands to his wife "for her sole use and benefit" without the intervention of a trustee, it was held that she did not take a separate estate (k). This case has been followed by the House of Lords (1), and it now be considered settled that the word "sole" may has not acquired a technical meaning, and will not be construed as equivalent to "separate," unless the context shows such to have been the intention (m).

Where a legacy was bequeathed to trustees for the support and maintenance of the wife of A., and for the support and education of A.'s children, and there were no children of A. at the testator's death, it was held that the wife took the legacy for her separate use (n). And where a legacy was by will directed to be applied to the separate use of a wife, a further annuity, which was given to her by codicil in addition, was held to be for her separate use (o).

A direction by will to purchase an annuity for the wife in her name, and to pay the same to her and her

judgment, referred to Adamson v. Armitage as a case of doubtful authority, and to Cox v. Lyne as very erroneously reported. See also Lewis v. Matthews, 2 L. R. Eq. 177.

(1) Massy v. Room, L. R. 4 H. L. 288.

(m) Re Tarsey's Trust, L. R. 1 Eq. 561.

(n) Cape v. Cape, 2 Y. & C. Eq. Exch. 543.

(0) Day v. Croft, 4 Beay. 561.

assigns, does not, except under the recent Act, confer upon her a separate estate in the annuity (p).

So also a settlement of personalty on the wife for life for her separate use, with remainders over, with the ultimate remainder to her executors, administrators, and assigns, does not, except under the recent Act, create a trust for her separate use as to the ultimate remainder (q).

be dis

Independently of the Married Women's Property Separate estate Act, 1882, all property, whether real or personal, held posed of by in trust for the separate use of a married woman, wife. whether for an estate in fee simple (r), or for any other estate or interest (s), can be disposed of by her independently of her husband, in all respects as if she were a feme sole, and the deed of disposition need not be acknowledged.

If in a case not within the Act of 1882, land has been given to a married woman in fee simple for her separate use so that she has the legal estate as well as the equitable separate estate, it is apprehended that upon a sale or mortgage she will be able, under sect. 6 of the Vendor and Purchaser Act, 1874, to convey the legal estate to the purchaser or mortgagee by an unacknowledged deed. The contract and payment of the consideration money will constitute her a bare trustee for the purchaser or mortgagee, and thus bring her within the operation of the section (t).

If

in land given

legal estate to separate use vested in her, she can conVendor and semble.

of wife is

vey under

Purchaser Act,

A trust of the rents or income of real or personal Restraint on property for the separate use of a married woman, has anticipation. been usually accompanied by a clause in the nature of a restraint on anticipation, in which case her power is restricted to that of receiving the income as it becomes due, and she is absolutely incompetent to make any disposition of the rents or income before they accrue due, and until lately she could not give a valid power of attorney to receive them (u), nor could the Court