1838.-Tullett v. Armstrong.

sion of disapprobation by the Lord Chancellor in Brown v. Pocock. I must therefore consider the point as settled."

In Stiffe v. Everett the limitation was to the separate use of an unmarried daughter, without power of anticipation. The husband and wife petitioned for the transfer of the fund, the wife offering to execute any appointment. The anticipation clause was there clearly invalid; and if the property had been effectually settled to the separate use of the wife, her appointment would have passed it whether reversionary or not. The Lord Chancellor, therefore, by deciding on the ground of the property being reversionary, and on the authority of Purdew v. Jackson,(a) assumed the invalidity of the separate use clause.

A gift to an unmarried woman for her separate use is a gift to her absolutely, and without restriction of any kind. Has the court any authority to

alter the nature of that property on her subsequent marriage, and limit [*10] *the gift so as to exclude the legal rights of the husband?

The sepa

rate use and anticipation clauses, as applied to unmarried woman, are supported upon the same principle, namely, the practice of conveyancers; but the anticipation clause having been decided to be invalid, the authority is no better in respect of the separate use clause. In Davies v. Thornycroft, (b) it was argued that the separate use clause was not a restriction or fetter, but a guard: this is a mere play upon words; both the separate use and the anticipation clauses are fetters upon the legal rights of the husband. Mr. Moore and Mr. Duppa, for trustees.

Mr. Wray, for Mr. and Mrs. Armstrong:-The case before the court is, on principle, one of extreme importance, as scarcely a settlement or will has been executed in modern times, in which the question now before the court does not arise. All wills and settlements have been framed by conveyancers on the assumption of the validity of this clause, without reference to a lady being married or unmarried; and, until the decision of Newton v. Reid, no doubt existed as to the validity of a gift to the separate use of an unmarried woman, without power of anticipation. The only question has been, whether such was, in reality, the intention. In Pybus v. Smith,(c) Lord Thurlow said, "If it was the intention of a parent to give a provision to a child in such a way that she cannot alienate it, he saw no objection to its being done; but such intention must be expressed in clear terms."

This view of the subject was adopted by the Master of the Rolls in [*11] Sockett v. Wray,(d) and he almost *assumed the validity of a restraint in the case of a future coverture; for he says, in p. 487, "There is something remarkable in this case that the restraint is only during her present coverture. If she survived her present husband, the restriction was thought unnecessary; therefore, during the life of her present husband, she (a) 1 Russ. 1. (b) 6 Sim. 420.

(c) 3 B. C. C. 347.

(d) 4 B. C. C. 485.

1858. Tullett v. Armstrong

can only dispose of it by will." Sir W. Grant, in Wagstaff v. Smith,(a) observes, "there are many cases in which the question has been whether the absolutely property, including a power of disposition, was intended to be given, or whether it was a personal gift without a power of disposition, and where the court has seen from the words an intention to limit her to a personal gift, without a power of disposition, the court has said, that condition might be imposed, and an interest inconsistent with it would not be effectual."

The judges in all these cases refer only to the intention, and whether it was sufficiently expressed; and they do not appear to doubt the validity of the clauses. It is erroneous to apply the same mode of reasoning to an estate given to a woman as that limited to a man. In Beable v. Dood,(b) A. devised lands in trust to pay the rents and profits to his daughter (whose husband was ten living) for her life, notwithstanding her coverture, and not to be subject to any control, &c., of her husband, nor liable to any debts which he had or should contract: afterwards the devisor made a codicil, taking notice of the death of his daughter's husband, wherein he ratified and confirmed his said will. The daughter was held entitled under this devise to the rents and profits, &c., free from the control of any future husband. In that case, the doubt, as stated by Willes, J., was, whether the restriction applied to her then present or to any future husband; and the judgment in that case affirmed *the proposition, that a gift to a woman, [*12] independent of any future husband, was valid and in fact the invalidity of such a gift was never once suggested. Mr. Justice Willes, in p. 202, says "On the whole of the will, I am of opinion that the testator meant that both his daughters should take the estate, independent not only of their present, but of their future husbands;" and Mr. Justice Ashurst said. -"Taking this on the construction of the will alone, it is very clear that the testator meant that this restriction should not be confined to the present husband, because he has expressly excluded the husbands of both his daughters from any control over their respective estates; which shows a general jealousy of any husbands, and not any particular jealousy with regard to Fowler alone: and he does not even mention either of their names." Mr. Justice Buller added, "Whatever might be the construction upon the will alone, yet, taking both the will and the codicil together, it is clear that this restriction applies to any future as well as a present husband. The names of the husbands are not mentioned. The limitation to trustees is during the life of the wife; this therefore, must extend to any husband she may ever have;" and judgment was accordingly given for the plaintiff. In the case of Anderson v. Anderson,(c) the validity of a gift to the separate use of an unmarried woman came distinctly in question; and Sir John Leach granted an injunction to restrain the husband from receiving the rents of the pro(a) 9 Ves. 524. (b) 1 Term Rep. 193. (c) 2 Myl. & K. 427.

1838.--Tullett v. Armstrong.

perty given before marriage to the separate use of the wife, and from interfering with her separate estate; and this order was afterwards affirmed by Lord Eldon. At the hearing of the cause, a decree was made against the husband, for the conveyance of the property to a trustee for the wife, and for an account of the rents and profits received by him. This was an ex[*13] press decision both of Lord Eldon and Sir John Leach on *the point. Knight v. Knight, (a) and Benson v. Benson,(b) were decided on the ground that the restriction was, by the terms of the instruments, confined to the first coverture only; and the Vice-Chancellor, who decided these cases, admitted, in Davies v. Thornycroft,(c) the validity of a trust for the separate use of a woman, married or unmarried. In Massey v. Parker there were two questions raised; first, whether the terms of the will were sufficiently express and unequivocal to create a gift to the separate use of the grand-daughter; and if they did, then a second question arose, whether such a trust was valid against an after taken husband and his assignees. Sir C. C. Pepys having decided against the defendant on the first point, and having determined that the property was not given to the separate use at all; the second question, namely, the validity of the limitation to the separate use, did not arise. What was said on the second point must, therefore, be regarded as a dictum. In Stiffe v. Everett, which was decided soon after Massey v. Parker, and in which the point arose, the Lord Chancellor preferred resting his decision on the reversionary nature of the property, rather than on the doctrines propounded in Massey v. Parker.

Mr. Pemberton in reply.-Whatever doubt may exist as to the case of Massey v. Parker, or on the validity of a gift to the separate use of an unmarried woman, yet on the validity of a general restriction against alienation there is no conflict of opinion, except the judgment of Sir John Leach, which was solemmly overruled by the Lord Chancellor.

If the separate use clause as applied to an unmarried woman, be [*14] effectual on her subsequent marriage, it must be on the principle that

a new estate arises on that contingency. It is a new estate to arise on an event contemplated by the testator; but the question here is, whether a gift for life, with a direction against alienation wholly unconnected with any contingency of marriage, is good or bad. Now every one of the cases concur in establishing the proposition that such a limitation to an unmarried woman is totally null and void. Can there be a doubt that it is as inconsistent with her estate, as if the same estate were given to a man? Now, in Brandon v. Robinson, it was expressly decided that such a limitation cannot be attached to the property of a man, because you cannot separate from property its incidents. It is clear, as Lord Eldon said in that case, if you give property for life, you cannot take away the incidents of the estate; the observation applies equally with regard to a married woman. It was not without a conflict that the validity of the clause against anticipation was es

(a) 6 Sim. 121.

(b) 6 Sim. 126.

(c) 6 Sim. 420.

1838.-Tullett v. Armstrong.

tablished in the case of a married woman; there is no authority for extending it.

I assume, for the sake of argument, that the doctrine stated in Massey v. Parker, was erroneous, and that you can create a future separate estate. Has the same rule in any one case been applied to the clause against anticipation? There may be modes by which such a condition might be annexed to the estate of a woman on her becoming covert; but it is a very different thing to say that a general clause against alienation, made without reference to an existing or future marriage, has at any time the effect of preventing a woman from disposing of her property. The whole doctrine of separate estate rests on what the court has thought proper to ingraft on the common law; a strange equitable doctrine, which takes every thing from the husband, and gives him nothing in return: it is founded on the pure arbitrary *doctrine of this court, sanctioned by long practice. The doctrine is [*15] not to be extended; and it is incumbent on those who seek to take away the legal rights of the husband to show some express warrant for it from former decisions.

It is not necessary, to consider, whether if the limitations were so framed as to take effect on a future marriage, the clause would be good or not; here is a restriction not so framed; but a general restriction, inconsistent with the absolute estate. There can be no distinction between its validity before and after marriage; for if it be invalid before the marriage, the mere accident of marriage cannot affect it and make it good. Can the restriction shift and vary so as to be invalid before marriage, but be rendered valid by a coverture; become suspended after the first marriage; and again come into operation on a second? Another reason against it is, that as a general restriction against alienation, it would be nugatory; for it has been decided, and is now admitted, that the hour before marriage the donee might alienate. It is clear then that it would be no protection to a woman, as she could not be prevented alienating the property. Sir John Leach's doctrine was much more consistent; namely, that you may annexed a clause against anticipation to the estate of an unmarried woman altogether; and that marriage being a circumstance which the court would contemplate, it would place a feme sole in a different position from that of a man, and would not permit her, either when covert or discovert, to do any act to defeat that which was intended for her permanent provision. This doctrine, has however been overruled, and is not now the law of the court; and it has been decided, by a series of authorities, that you cannot annex to the estate of an unmarried woman a condition against "alienation, without a gift over: [*16] the authorities concur in this. Jones v. Salter(a,) decided by Sir W. Grant in 1815, was a gift to a woman for her separate use, without power of anticipation: the lady having become discovert, a petition was presented by

1838.-Tullett v. Armstrong.

her for payment of the fund, and the order was made: now this was expressly against the principle of Sir John Leach. Again, Newton v. Reid, was a case of property limited to the separate use of an unmarried woman, with a clause prohibiting assignment: she married, and did assign, and the assignment was held good. In Woodmeston v. Walker, Sir John Leach's doctrine was, that a clause of this description, attached to a gift to an unmarried woman, would on a future marriage be valid; and that it prevented any alienation, even while the lady was discovert; but on appeal, Lord Brougham was of opinion that there was no foundation for the doctrine. In Brown v. Pocock there was a gift to the separate use of an unmarried woman, and a clause against anticipation: she made an assignment to secure an annuity, and afterwards married: on the petition of the assignee, an order for payment of the annuity was made: she subsequently, during coverture, made a second charge on the property, and a second order for payment was made by another judge. It is said, that in Massey v. Parker, no distinction was made between a clause against anticipation and a clause for the separate use, and that the authorities referred to by Sir C. C. Pepys do not apply to the clause for the separate use, but to the anticipation clause. Be that as it may, he concurred in the authorities which hold that the clause against anticipation cannot be attached to the estate of an unmarried woman. Sir L. Shadwell, who decided Newton v. Reid and Brown v. Pocock, held, in Davies v. Thornycroft, that a gift to the separate use of an unmar[*17] ried *woman, might take effect on a subsequent marriage; but, in

the very same case in which he refers to Massey v. Parker, he refers to and does not disapprove of the decisions determining the invalidity of the clause against anticipation. As to the anticipation clause, the law has been settled by Sir W. Grant, Lord Brougham, Lord Cottenham, and Sir L. Shadwell, and this court cannot now reverse the many decisions which have determined the law at least on this point.

November 3.-THE MASTER OF THE ROLLS.-The plaintiff claiming to be entitled to two annuities, granted to him by the defendants William Armstrong and Mary Augusta his wife, by his bill, prays that an account may be taken of what is due to him for the arrears of his annuities; and that the same and the future payments thereof, may be paid to him, by and out of the rents and profits of the freehold, copyhold, and leasehold estates, comprised in certain indentures, dated on the 16th of March, and on the 22d day of September in the year 1832, or if necessary by the due execution of the trusts. and powers of such indentures for the sale or mortgage of the same estates. The bill also prays for an inquiry, respecting an annuity alleged to have been granted by Armstrong and wife to one James Izod; and that such annuity may be either declared to be invalid, or that if a valid incumbrance on the estates, an account may be taken of what is due in respect thereof and for further relief.