1838.-Tullett v. Armstrong. The case is, that Nathaniel Bradford by his will, dated the 27th day of March, 1820, gave to his daughter Ann Bradford and the defendant William Gates, all his freehold, copyhold, and leasehold estates, and all his *residuary personal estate, on trust for his wife Ann Bradford for her [*18] life, and after her death upon trust, and he gave the particular property therein for that purpose described, to his daughter Ann Bradford. And after the death of his wife, upon trust, and he gave unto and equally between his daughter Ann Bradford, and his grand-daughters Georgiana Pierpoint and Mary Augusta Tilt, a copyhold, messuage, and appurtenances in the possession of Collier, to hold unto and equally between his said daughter Ann Bradford, and his grand-daughters Georgiana and Mary Augusta, during their joint and several lives, as tenants in common, so and in such manner that neither of his said daughter and grand-daughters might anticipate, charge, sell, assign, or dispose of their several and respective lives, or life, estates or estate so devised to them, of or in the aforesaid copyhold premises, and the rents and produce thereof; and so and in such manner, that neither any husband or husbands of his said daughter or grand-daughters might have or acquire any right of or in, or control over, the life estates or interests of his said grand-daughters respectively, nor should the same be liable to the debts, contracts, forfeitures, or engagements of any such husband: and he declared and directed that the receipt and receipts of his said daughter Ann Bradford, and grand-daughters Georgiana and Mary Augusta, should from time to time be good and effectual discharges for the money therein expressed to be received; and after the decease of the survivior of his daughter and granddaughters, he gave over the property so devised to them for life; and after devising a moiety of a copyhold tenement on the east side of East Street, in Brighton, he gave after the death of his wife, unto his grand-daughter Mary Augusta, the other moiety thereof; and also the entirety of certain leasehold premises in his will particularly described, to hold *to Mary [*19] Tilt for her life, with remainder to her children; and he gave the residue of his personal estate unto and equally between his daughter Ann Bradford and Henry Tilt, Georgiana Pierpoint, and Mary A. Tilt, absolutely as tenants in common, and he declared, that all or any of the bequests and devises before made to his grand-daughters Georgiana and Mary A., not before bequeathed and devised to them, exclusive of any husband, were so given and devised to them free, clear, and exonerated from, and not subject to, any husband's rights, control, interference, debts, contracts, and engagements, and were to be taken and received by them respectively, as if they were sole and unmarried, and so held and enjoyed by them, that their several receipts should be good and effectual discharges; and he appointed his daughter and William Gates executrix and executor of his will. The testator died in October, 1820, leaving his wife Ann Bradford, and his grand-daughter Mary Augusta Tilt, in his will called Mary Tilt, surviving him. 1838.-Tullett v. Armstrong. The whole of his property became vested in his wife for her life; subject to that life interest, the testator gave a portion of it to his grand-daughter Mary Augusta for her life, for her separate use, and he intended that the interest. which he gave to her in a copyhold messuage, constituting part of the property, should be vested in her without power of anticipation. When the testator died, the grand-daughter Mary Augusta was unmarried ; and it has been argued, that as she was not married at the time of the testator's death, when the gift became vested in her, the limitation to her separate use is not effectual; and secondly, that if that limitation can be sus[*20] tained, the restraint upon it, *forbidding her to dispose of it in anticipation, is void, because it is not accompanied by a gift over in the event of an attempt to alienate. On the 25th of August, 1826, Ann Bradford, the daughter of the first testator, made her will, and she thereby inter alia, and subject to her mother's life interest, gave to her trustees, Nathaniel Bradford and Nenyon Masters Bradford, a certain messuage in Church Street, Brighton, upon trust to receive the rents and pay the same to her niece Mary Augusta Tilt for her life, "so and in such manner as the said Mary Augusta Tilt should not sell or dispose of her life interest therein, or any part thereof, nor raise or borrow money thereon by anticipation, mortgage, or otherwise, and so and in such manner that the rents, issues, and profits thereof, should not be subject to, but exclusive of, any husband's (which the said Mary Augusta Tilt should marry) right, control, or interference, nor should the same be liable to his debts, contracts, forfeiture, or engagements; and she declared that the receipt or receipts of her said niece only should be a good and sufficient discharge and discharges to her trustee or trustees, &c.; and that any sale or disposition for raising money by mortgage or otherwise, of and from her said niece's life-interest, should be from time to time null and void." And after her death the said testatrix gave the same premises to the children of Mary Augusta Tilt, and she appointed her trustees executors of her will. After the date of this will, and in April, 1827, the legatee Mary Augusta Tilt married the defendant William Armstrong, and two days afterwards, viz. on the 25th of April, the testatrix made a codicil, and thereby [*21] varied one devise in her will; but in other respects *confirmed the same, and she died in the month of October following. Mary Augusta Armstrong, the legatee, being married at the death of the testatrix, when the gift under her will became vested, it is not denied that the gift to her separate use might take effect, but it is argued that the restraint. upon alienation is inoperative, because there is no gift over upon the attempt to alienate. In January, 1830, the widow of Nathaniel Bradford, the first testator, died, and then the gifts under the two wills took effect in possession. In March, 1832, Armstrong and wife having sold an annuity of 317. 17s. to plaintiff for 3001, executed a conveyance and assignment of Mrs. Arm 1838.-Tullett v. Armstrong. strong's life interest to the plaintiff to secure payment of the annuity; and a like deed was executed in the following month of September, to secure to the plaintiff an annuity of equal amount. The annuities were paid up to some time in the year 1834; but in January, 1836, Armstrong took the benefit of the insolvent debtor's act, and thereupon the plaintiff filed this bill to enforce payment of the annuities. In this court a married woman has, for more than a century, been considered as capable of possessing property to her own use, independently of her husband; such property is called her separate estate, and, in respect of it, she is considered as a feme sole, enjoying, and capable of exercising, her rights as such. The property may be acquired, either by contract with the husband before the marriage, or by gift from *him, or from any stranger wholly [*22] independent of such contract; so far as his legal rights as husband may interfere, the court will treat him as a trustee; and property held by or for the wife to her separate use, if unaccompanied by any restraint, is subject to her power of alienation, and the other incidents of property held by men or single women.[1] The estate for separate use, as sanctioned by courts of equity, has its peculiar existence only in the married state. It operates as a protection to a married woman, against the legal power over the wife's property which is vested in her husband. It acts in contravention and control of the legal right of the husband, and as against his legal power it is a sufficient protection; but the power of alienation remaining in the wife, the separate estate, unfettered, is no protection against the moral influence of the husband, and many instances have occurred and daily occur in which the wife, under the persuasion or influence of her husband, has been and is induced to exercise her power of alienation in his favor or for his benefit, and thus defeat the protection intended for her. But as the separate estate itself, owed its origin and support to the courts of equity, it was understood, that the same courts might so modify it, as to secure the protection which was intended; and accordingly it was intimated by Lord Thurlow, that if a gift clearly expressed, that the separate estate should be incapable of assignment in anticipation or of alienation, that intention would be carried into effect, and his Lordship being of that opinion, himself set the example in a case in which he personally took an interest ; and from that time, now nearly half a century ago, it has been usual to introduce into wills and settlements a clause giving to women real and personal estate for their separate use, *independently of their hus- [*23] bands, without power of assignment, by way of anticipation or of alienation; and such clauses, though their operation has been considered to be, as undoubtedly it is, anomalous and irreconcileable with the ordinary [1] Vide Simons v. Horwood, 1 Keen, 7; Tawney v. Ward, post, 568; Shirley v. Shirley, 9 Paige, 363; Scott v. Davis, 4 Myl. & Cr. 89 ; Amer. Ch. Dig., Husband and Wife, VIII. 1838.-Tullett v. Armstrong. legal rules, affecting the limitations of estates, and the legal incidents of property, have been repeatedly approved and carried into effect by this court, and settlements and provisions for families to a very great extent have been framed in reliance upon them. And in Jackson v. Hobhouse,(a) Lord Eldon emphatically declared, that it was too late to contend against the validity of a clause in restraint of anticipation.[1] I apprehend that the restrictive clause or fetter, (as it has been called,) has in this court, always been considered, as affecting a modification of the separate estate, and consequently, to have its operation only in the married state. It is said, indeed, that before the case of Brandon v. Robinson there were some eminent lawyers, who considered that a similar fetter might be imposed by this court, on property enjoyed by men and without relation to the married state; but, Lord Eldon, in deciding that case, after referring to Lord Thurlow's reasoning, that this court, having by its doctrine of separate estate enabled a woman, though married, to alien, might limit her power over it, thought it proper to state distinctly, that the case of a disposition to a man, who, if he has property, has the power of aliening, was quite different; and I conceive, that the validity of a clause in restraint of alienation, when clearly expressed, in connection with a clause giving the estate for the separate use of a married woman, also clearly expressed, has not till lately been doubted. [*24] *As the clauses conferring the separate estate, and annexing the fetter, have both of them their effective operation, only in the state of marriage, and are intended for the protection of married women, and not to restrain the incidents of property vested in persons under no legal incompetency, it has been determined, that neither of them has any practical operation whilst the donee is single; it has been considered that, as an unmarried woman is as capable of enjoying and exercising the rights of property as a man is, the property must in her, whilst unmarried, be accompanied by its ordinary incidents, and upon this principle would seem to be founded the several cases of Jones v. Salter, Barton v. Briscoe, Woodmeston v. Walker, Brown v. Pocock. In the three first of these cases, the alienation took place during widow. hood, i. e. after the termination of a coverture. In the last, the alienation took place before coverture. In the cases of Woodmeston v. Walker and Brown v. Pocock, the Lord Chancellor reversed orders of Sir John Leach, who was of opinion, that an estate given to the separate use of a woman (a) 2 Mer. 488. [1] That an unconditional gift of a chattel or a chattel interest to a feme covert is subject to the marital right of the husband, see Hewitt v. Lord Dacre, 2 Keen, 622, 630. Shirley v. Shirley, 9 Paige, 363. If a feme covert who has a separate estate, purchases articles of furniture with the rents and profits of such estate, and puts them into the possession of her husband, without any agreement or understanding with him that he shall hold them as her trustee, or that the title shall be vested in any other person for her separate use, the articles thus purchased become the property of her husband, and are liable to be sold for his debts. Shirley v. Shirley, ubi sup. 1838.-Tullett v. Armstrong. independent of any husband she might marry, and accompanied by the fetter, prevented her from alienation when single, the intention having been, to secure to her the enjoyment of separate property during coverture, and coverture having therefore been in the contemplation of the donor, and being possible on the part of the donee, Sir John Leach considered, that she was not at liberty to defeat that intention, by any act of her own when single; his opinion was overruled, and the point does not arise in any of the cases before me. Supposing it to be satisfactorily established, that a woman may, when single, dispose of property given to her for her separate use without power of alienation, none of these cases would be affected by it. *But it has been argued, that if the gift of property for the separate [*25] use of a woman, whether intended to be thus fettered or not, becomes vested in the woman whilst single, she then possesses immediately the faculty of disposition or the power of alienation; and that, if she afterwards marries, she by the fact of marriage subjects this, like any other property, to the marital power of the husband, and in that way, loses all the protection she was intended to have; and in the arguments which have been used on this subject, a desultory or shifting privilege or fetter attaching on the marriage, and of no practical operation when the woman is discovert, has been treated as a sort of absurdity not to be endured. I confess, however, that I see no absurdity, but considerable convenience, in a law affording peculiar protection to the property of married women; which affords to women protection, or imposes upon them restraint, for their protection, only when they want it; which enables a woman when single and adult, upon deliberation, to settle her property according to her convenience, or, if most to her advantage, to forego her protection altogether; and yet, guarding against infancy or improvidence, secures her the protection when married, if she has not deliberately and designedly renounced it before the marriage took effect. And it appears to me, that this court has not considered, that the woman by the fact of marriage, subjects an estate given to her for her separate use, to the marital power of her husband. In Lady Strathmore v. Bowes, (a) Lord Thurlow puts this case: "Suppose a relation had given her 10,000l. for *her sole and separate [*26] use; if she had represented it as her own absolutely, so that upon a marriage it would have gone to her husband, this court would have compelled the trustees to give it to her husband, but not otherwise." It is therefore clear, that Lord Thurlow did not think, that the woman by her marriage gave her separate estate to the husband; for looking at her situation before marriage, he distinguished between property given to her sole and separate use, which the court would protect from the marital power. Moreover, many cases have occurred, in which property has been given to women, for their sole use, independent of any husband; and in which the court has had (a) 1 Ves jun. 27. |