1858.--Scarborough v. Borman.

1838; July 9, November 3.

*SCARBOROUGH v. BORMAN.

[*34]

A testator bequeathed a sum in trust, far his daughter, then and at his death a widow, for her separate use. After the death of the testator she married: Held, that her husband acquired no interest in the fund.

THIS bill was filed by James Scarborough against William Borman, (a trustee,) and against the plaintiff's wife and her three children by a former marriage.

The bill stated that Thomas Smith; by his will, dated on or about the 2d of June, 1820, amongst other things gave and bequeathed unto Thomas Marris and William Borman, their executors, administrators and assigns, the sum of 1500l. to be paid to them within six months after his, the testator's decease, by his executor thereinafter named, upon and for the trusts, intents and purposes thereinafter expressed and declared, of and concerning the same (that is to say) upon trust, that they, the said Thomas Marris and William Borman, or the survivor of them, or the executors, administrators or assigns of such survivor should forthwith, upon the receipt thereof, put and place out the same at interest upon government or real security, and should, from time to time, alter and vary the same at their or his discretion; and also during the life of his daugther, Frances Brown, then the widow of George Brown, late of Thorganby, in the city of Lincoln, tanner, pay the interest, dividends and produce thereof, when and as the same should be paid, into her own hands for her sole, separate and exclusive use and benefit, and exclusive of, and without being in any wise subject, or liable to the debts, intermeddling, or control of any future husband. And the testator declared it to be his will, that the receipt and receipts in writing of his said daughter should, notwithstanding any future coverture, be a good and sufficient discharge, and good and sufficient discharges for the said [*35] interest and dividends, or so much thereof as in such receipt or receipts respectively, should be expressed or mentioned to be received; and from and after the decease of his said daughter, Frances Brown, then upon this further trust, that they, his said trustees, or the survivor of them, or the executors, administrators or assigns of such survivor, should call in the said sum of 15007., and pay and divide the same to and amongst all and every the children of his said daughter, Frances Brown, then, or thereafter lawfully to be begotten, when and as they should severally attain their respective ages of twenty-one years.

That the testator departed this life on the 5th of June, 1820, and shortly after his death, his executor transferred the sum of 1500l. to Marris (since deceased,) and Borman upon the trust aforesaid.

In 1832, Frances Brown who, up to that time, had continued a widow, intermarried with and became and was the wife of the plaintiff.

The bill suggested certain breaches of trust as to the trust fund, and

1838-Clark v. Jaques.

prayed, that the plaintiff might be declared entitled, in right of his wife Frances Scarborough, under the will of the said testator, to the interest of the sum of 15001. during the lifetime of his wife, and all arrears thereof; and it prayed for an account thereof, for consequential directions.

To this bill the defendants filed a general demurrer.

Mr. Kindersley and Mr. Jemmett, in support of the bill. [*36] *Mr. Pemberton aud Mr. Sidebottom, for the demurrer.

November 3.-THE MASTER OF THE ROLLS, after stating the circumstances of the case:-This case was not argued, but both parties concurred in desiring the case to be decided upon the argument in Tullett v. Armstrong, and in representing that the only question was, whether the woman was entitled to separate estate, when the subject became vested in her when single. I am of opinion that she is so entitled, and on that ground allow the demurrer, unless the counsel for the plaintiff should think that, notwithstanding that opinion, the bill can be sustained, as seeking to secure the fund for the benefit of any children of the present marriage.[1]

1838; August, September 5.

CLARK V. JAQUES.

An annuity was bequeathed to a lady, who was unmarried at the death of the testator, for her separate use, independent of any husband with whom she might at any time marry, and without power of anticipation. After the death of the testator, the legatee married, became a widow, and contracted a second marriage. No disposition having been made by her while discovert: Held, that the separate use and anticipation clauses attached to the annuity during the second marriage.

THIS case came before the court upon a petition presented by Richard Hitchcock and Sarah Grace his wife, which stated that William Clark, by his will, dated the 25th of October, 1822, among other things, gave and bequeathed the residue and remainder of his personal estate and effects unto Thomas Williams and John Jaques, upon trust, from and out of the yearly dividends and annual profits thereof, to pay and apply to and for the [*37] use of the said Sarah Grace Hitchcock, (*therein called Sarah Grace Brown, spinster, daughter of Mr. George Brown,) for her own use and benefit, for and during the term of her natural life, the yearly sum of 50%. sterling and the testator declared it to be his will, that the said annuity should be for the separate use of the said annuitant, and not subject to the debts or control of any husband, with whom she might happen to be married, at the time of the said testator's decease, or at any time afterwards; and that the receipt, or receipts of the said Sarah Grace Hitchcock, should be

[1] Affirmed by Lord Cottenham, Jan. 22, 1840. 4 Myl. & Cr. 377, 407.

1838. Clark v. Jaques.

good discharges to his said trustees. And he declared it to be his will, that the said annuitant should not sell, or dispose of, or in any manner incumber, or anticipate her said annuity, or any part thereof, or the future or growing payments of the same in anywise howsoever. That the testator died without having altered his will, which was proved on the 20th of February, 1823.

The petition then stated that the petitioner, Sarah Grace Hitchcock, was born on the 17th day of August, 1804, and was a spinster at the time of the death of the said testator; and on or about the 14th day of May, 1823, she intermarried with Thomas Jaques, who afterwards departed this life; and in January, 1836, she intermarried with Richard Hitchcock, who was born on the 8th day of May, 1792; that during the time the petitioner, Sarah Grace Hitchcock, was so a spinster, and during her marriage with the said Thomas Jaques, also during her widowhood, and since her marriage with the petitioner Richard Hitchcock, down to the 30th day of July then last past, she had been in the receipt and enjoyment of the said annuity.

The petition then stated certain orders of the court, dated the 10th of February, 1927, the 10th of August, 1831, and the 20th of February, 1836, by which, the *annuity had been directed to be paid to the se- [*38] parate use of Mrs. Hitchcock.

The petition then stated, that the petitioners, by certain articles of agreement, made and entered into on the 2d day of August instant, had contracted and agreed to sell unto Ireneus Mayhew, and the said Ireneus Mayhew had agreed to purchase, at or for the sum of 4407. (subject as in the said contract or agreement was mentioned,) all that the said annuity or yearly sum of 507. so given and bequeathed to the petitioner, Sarah Grace Hitchcock, by the will of William Clark deceased, for and during the joint lives of the petitioners, Richard Hitchcock and Sarah Grace, his wife, on a good title being shown to the said annuity, and on Ireneus Mayhew, the purchaser, being put in the receipt of the same annuity, under the order of this honorable court, and it prayed that the agreement or contract of August, 1838, might be confirmed, and the sale thereby intended to be made; that the said Ireneus Mayhew might be entitled, and directed to receive, all future payments of the said annuity of 50%. thereafter to accrue due during the joint lives of the petitioners, Richard Hitchcock and Sarah Grace Hitchcock, and for a certain consequential directions.

Mr. Bilton, in support of the petition.

Mr. Wilcox, for the trustees.

November 5.-THE MASTER OF THE ROLLS:-The testator, by his will, dated the 25th of October, 1822, bequeathed, out of the interest of the residue of his estate, an annuity of 50l. to Sarah Grace Brown, spinster, for *her separate use, not subject to the debts or control of any husband, [*39]

1838.-Dixon v. Dixon.

at the time of the testator's death, or afterwards, and she was not to have power to alienate.

The testator died leaving the annuitant a spinster.

On the 14th of May, 1823, the annuitant married Thomas Jaques, who some time afterwards died.

And on the 22d of January, 1836, the annuitant, then the widow of Jaques, married Richard Hitchcock.

In August, 1838, Hitchcock and wife agreed to sell the annuity to Ireneus Mayhew, and the fund out of which the annuity is payable, being in court, this petition prays that the annuity may be paid to the purchaser.

I do not think fit to grant the prayer of this petition, because I think, that the interest was effectually given to the woman for her separate use, and with restraint upon alienation during her life ;[1] and that the fact of her having been single at the testator's death, and a widow during the period which elapsed from her first husband's death till her second marriage, do not vary the nature of her estate and interest.

No order made upon the petition.

[*40]

1838; November 7.

*DIXON v. DIXON.

A lady being entitled, subject to a prior life estate, to certain freehold and funded property, she settled the same, on her first marriage, for her separate use, independent of her intended. or any other husband Her first husband died, and she married a second time: Held, that the property still belonged to her as her separate estate.

THIS bill was filed by Ann Maria Dixon, the wife of the defendant, John Dixon, by her next friend, against her husband and a trustee, claiming to be entitled to certain property, as being her separate estate, under the following circumstances:

At the time of the marriage of the plaintiff, Ann Maria Dixon, then Ann Maria Shields, with her first husband, Samuel Simpson, she was entitled, in remainder, to a certain portion of two freehold houses, her mother having a previous life estate therein she was also entitled, in remainder, to a share in two sums of money invested in the funds, in which also her mother had a previous life estate. In August, 1821, the plaintiff (her mother being then living) married Samuel Simpson, on which occasion a settlement was executed, whereby her interest in these freeholds was conveyed to trustees, in trust, for sale, and she assigned to trustees all her interest in the stocks and

[1] While discovert, the restraint upon alienation is void, as inconsistent with the nature of the gift but when the donee becomes covert, then the restraint upon alienation applies. Tullett v. Armstrong, ante, 22. Lord Cottenham, S. C. 4 Myl. & Cr. 394, 406.

1838.-Dixon v. Dixon.

funds; and it was declared, that the trustees should stand possessed of the produce of the real estate and of the funds, upon the trusts following:Upon trust and to the intent that, during the natural life of the plaintiff, the interest, dividends, or annual proceeds of the said trust moneys, stocks, funds, and securities, might be for the sole and separate use and disposal of the plaintiff, exclusive of the said Samuel Simpson, or any other husband with whom she might intermarry, and free from his debts, engagements, dominion and control; and to that end, upon trust, to pay such interests, dividends, or annual proceeds from time to time as the same [*41] should be due, and be received either into the proper hands of the plaintiff, and for which her receipt, notwithstanding her coverture, should be a good discharge, or to such person or persons, and for such use and purpose as she, by writing under her hand, should, notwithstanding her coverture, from time to time, as the interest, dividends, or annual proceeds should arise, but not in any way by anticipation, direct. And it was by the said indenture further declared and agreed by and between the parties thereto subject, and without prejudice, to such powers of appointment and provision, for advancement for the children of the marriage, as were therein mentioned; that in case there should not be any child or children of the intended marriage, or if there should not be any child who should become entitled to a vested interest in the trust moneys, stocks, funds, or securities, the trustees and the survivor of them, and the executors or administrators of such survivor, should stand possessed and interested of and in the same, in trust, for the plaintiff, her executors, administrators and assigns, in case she should happen to survive the said S. Simpson.

Samuel Simpson died in October, 1827, without having had any children by the plaintiff. The plaintiff afterwards married the defendant, John Dixon, on which occasion no settlement was executed; and, in February, 1838, the plaintiff's mother died, whereby the plaintiff became entitled, in possession, to her proportion of the freeholds and of the funds in question: she filed this bill in February, 1838, stating these circumstances, and that she had not, for some time past, been supported by John Dixon, and that she was therefore wholly without the means of subsistence: the bill also stated that, on the second marriage, her husband had notice of the settlement. The defendant, the husband, by his *answer, admitted that, prior to [*42] his marriage with the plaintiff, he had heard that a settlement had been executed on the occasion of the plaintiff's previous marriage with Samuel Simpson; but the defendant said he was never made acquainted with, or informed of the contents of that settlement, and that he never saw the same;[1] he submitted, whether the settlement made on the first marriage of the plaintiff was binding on him, and he claimed to be absolutely entitled,

[1] As to the equity of the husband to set aside a settlement of the property of his wife executed by her during the treaty of marriage, see Taylor v. Pugh, 1 Hare, 608.