abandonment or transportation, and until his actual return, the wife may contract, pay, and receive money, or sue and be sued as a single woman (i).

husband for

judicial separation.

may have effect

By the Matrimonial Causes Act, 1878 (k), it is pro- Conviction of vided that if a husband shall be convicted summarily assault on wife or otherwise of an aggravated assault upon his wife, of the Court or magistrate may, if satisfied that her future safety is in peril, order that the wife shall be no longer bound to cohabit with her husband, and such order is to have the force and effect of a decree of judicial separation on the ground of cruelty. (k) 41 Vict. c. 19, s. 4.

(i) 2 Bright's H. & W. 70.

236

SETTLEMENTS.

Division of subject.

Trusts for payment of

lives of husband and wife.

IN this Dissertation it is proposed to considerI. Settlements generally. II. Voluntary dispositions, how far they are valid as against (1) subsequent purchasers, (2) creditors, and (3) the settlor himself and his representatives; and III. Stamps on Settlements.

I. Settlements generally (a).

In settlements of personal estate made upon marriage, income during the first trusts (after providing for the investment of the trust funds) generally relate to the destination of the income during the lives of the husband and wife. When the property settled comes from the husband, the first life interest is, except under special circumstances, given to him. When, on the other hand, the wife makes the settlement, it is usual to give her the income during the coverture for her separate use, without power of anticipation, but the husband is sometimes permitted to receive the income of his wife's as well as of his own property, charged with the payment to the wife of an annual sum during the coverture, or even without such charge (b).

* Observations on the question whether the wife or husband should

life interest in the wife's property.

(a) It is considered that the practice as to marriage settlements has not been materially affected by the passing of the Married Women's have the first Property Act, 1882. That Act prevents the husband from taking possession of, or pledging, his wife's property without her consent, but does not fulfil the main object of a settlement, viz., the securing of a certain provision for the issue of the marriage, which will be safe against the engagements of the husband, and now of the wife also.

(b) When the property settled by the wife is of moderate amount and the husband has means of his own, or is in a trade or profession, the arrangement by which the wife takes the whole income during the joint lives is a reasonable and convenient one, as it secures an inalienable provision for the family free from the husband's obligations. But if the wife's property is large the case is different, particularly if the husband has little or nothing. and is in no business or profession.

alienation or

Sometimes it is desired, particularly if the husband Gifts over on is improvident, or is in embarrassed circumstances, or bankruptcy, is engaged in a hazardous business, to make his life &c. interest determinable on his bankruptcy, or on his attempting to alien or charge it. With regard to clauses of this description, the following points may be considered as settled:

such gifts over

are valid.

1. That where the property settled comes from the Cases in which wife, or from any other source than the husband himself, a gift over on the husband's bankruptcy or alienation is valid (c). And this is the case where the wife becomes entitled to money after the marriage, and she and her husband join in so settling it (d). 2. That where the property settled comes from the husband himself, such a gift over is invalid as against his trustee in bankruptcy (e), but good against his alienees (f). 3. That where the husband receives part of his wife's fortune on marriage and settles property of his own upon himself for life with a gift over on bankruptcy, &c., the wife will be considered as a purchaser of the property so settled to the extent of her fortune received by the husband, and consequently the gift over will to that extent be valid against the husband's trustee in bankruptcy (g). 4. That a mere condition annexed to the gift of a life interest that the donee shall not alien, unless followed by a gift over, or unless the destination of the income

It is not desirable, in the interest of either party, that the husband, on whom the law throws the burden of maintaining the family, should be entirely dependent on his wife for the means of doing so; and this is more especially the case where the property is a landed estate.

(c) Dommett v. Bedford, 3 Ves. 149; Lockyer v. Savage, 2 Stra. 947; Ex parte Hinton, 14 Ves. 598.

() Montefiore v. Behrens, 1 L. R. Eq. 171.

(e) Higinbotham v. Holme, 19 Ves. 88.

(f) Brooke v. Pearson, 27 Beav. 181; Knight v. Browne, 30 L. J. Ch. 649. In Phipps v. Lord Ennismore, 4 Russ. 131, a life estate was given to A. by marriage settlement,

and by a separate deed executed at
the same time he covenanted with
the trustees that he would not alien
or encumber his life estate, and that
if he did, then the trustees should
apply the rents for the benefit of A.
and his wife and children, or any of
them at their discretion. A. after-
wards charged his life estate for
valuable consideration in favour of
persons who had no notice of the
second deed, and it was held that
the second deed was fraudulent and
void as against them. The ground
of this decision was, it is conceived,
the covenant being contained in a
separate and, as it were, secret deed.

(g) Lester v. Garland, 5 Sim. 205.
See also Ex parte Cooke, 8 Ves. 353;
Ex parte Hodgson, 19 Ves. 206.

Trusts for issue after decease of husband and wife.

during the rest of the life of the donee is in some way provided for by the instrument, will be inoperative (h). 5. That a clause forfeiting a life interest on the bankruptcy of the donee, though in terms referring to a future bankruptcy, takes effect, where the donee is an uncertificated bankrupt, at the date of the instrument of gift (i). 6. That if the bankruptcy is annulled before the life interest falls into possession, or before any payment has become due in respect thereof, there is no forfeiture (j), and this rule has been applied to an immediate life interest given by a will, where the annulment took place nine months after the testator's death, but before the assets were realised (k). But where there is a realised fund on which income has accrued while the bankruptcy was in force, the fact that it is not actually paid over to the trustee in bankruptcy, or claimed by him before the annulment, does not, it is apprehended, prevent a forfeiture (1).

A life interest, subject to a gift over in case the donee shall assign, mortgage, or in any manner anticipate the income, is not forfeited by an involuntary alienation, e.g., bankruptcy (m); but it is otherwise if the gift over is in case the donee shall "do or suffer," or shall "do or permit" anything whereby the property shall be assigned or charged, &c. (n).

After the decease of both husband and wife, the ordinary trusts of a marriage settlement are for the children, or remoter issue of the marriage, as the husband and wife or the survivor shall appoint; and

(h) Brandon v. Robinson, 18 Ves. 429. A proviso annexed to a trust to pay an annuity that the annuity shall cease upon alienation, &c., is valid and operative. In such a case there is in effect a gift over, as the annuity sinks into the property charged therewith, or out of which it is payable for the benefit of the persons entitled to such property. Dommett v. Bedford, 3 Ves. 149; Rochford v. Hackman, 9 Hare, 475, 481; Joel v. Mills, 3 K. & J. 458.

(i) Manning v. Chambers, 1 De G. & Sm. 282; Seymour v. Lucas, 1 Drew. & Sm. 177; Re Mug

geridge's Trust, Johns. 625; Trappes v. Meredith, L. R. 7 Ch. App. 248.

(j) White v. Chitty, L. R. 1 Eq. 372; Trappes v. Meredith, ib. 9 Eq. 229.

(k) Lloyd v. Lloyd, 2 Eq. 722. See also Ancona v. Waddell, 10 Ch. D. 157.

(1) In re Parnham's Trust, 13 Eq. 413; Samuel v. Samuel, 12 Ch. D. 52.

(m) Whitfield v. Prickett, 2 Keen, 608; Graham v. Lee, 23 Beav. 388. (n) Roffey v. Bent, 3 Eq. 759; Ex parte Eyston, 7 Ch. D. 145.

in default of appointment for the children equally, the
shares of sons to vest at twenty-one, and the shares of
daughters to vest at twenty-one or marriage, with a
provision that
any appointed share should be brought

into hotchpot.

The advantage of extending the power to remoter issue is, that if a son to whom no share has been appointed, should die, leaving issue, the donces of the power are enabled to provide for such issue; and other cases may happen in which it may be desirable that grandchildren should be provided for, either by way of executory limitation after a life interest given to their father or mother, or without any such intermediate interest.

clause may

now be

The maintenance clause which used to be inserted Maintenance as a common form in settlements, may now be safely omitted, having regard to sect. 43 of the Conveyancing omitted. Act, 1881, which is as follows:

recent Act as

(1.) Where any property is held by trustees in trust for an Provisions in infant, either for life or for any greater interest, and to maintenwhether absolutely, or contingently on his attaining the ance, age of twenty-one years or on the occurrence of any event before his attaining that age, the trustees may, at their sole discretion, pay to the infant's parent or guardian, if any, or otherwise apply for or towards the infant's maintenance, education or benefit, the income of that property, or any part thereof, whether there is any other fund applicable to the same purpose, or any person bound by law to provide for the infant's maintenance or education, or not. (2.) The trustees shall accumulate all the residue of that and accumuincome in the way of compound interest by investing the plus income. same and the resulting income thereof from time to time on securities on which they are by the settlement, if any, or by law, authorized to invest trust money, and shall hold those accumulations for the benefit of the person who ultimately becomes entitled to the property from which the same arise; but so that the trustees may at any time, if they think fit, apply those accumulations, or any part thereof, as if the same were income arising in the then current year.

lation of sur