1839. Stead v. Nelson.

Mr. Pemberton and Mr. K. Parker, for the plaintiff, contended that the agreement was binding on the wife, for that the property being settled to her separate use she was to all intents and purposes to be considered with respect to it as a feme sole; in that view the agreement was binding on her, and on her separate property, over which she had not been deprived of the power of anticipation; that even if the instrument were defective in form, this court would aid it in favor of a purchaser for valuable consideration.

That this case was like Witts v. Dawkins,(a) where property had been settled during the joint lives of the husband and wife, upon trust for such persons as the wife should appoint, and in default to the separate use of the wife, and an agreement for sale entered into by the husband and wife was established against the purchaser.

Mr. Kindersley and Mr. Metcalfe, contra :-The estate was conveyed to trustees to the use of Mrs. Waterworth for life for her separate use, a legal estate for life became therefore vested in her, which could only be parted with by the due execution of the appointment under seal, or by the usual legal modes of conveyance of a feme covert's estate. of a feme covert's estate. Neither of these have been done, and the instrument, not being under seal, is invalid as an execution under the power.

Again, if the interest for her separate use be of an equitable nature; [*248] that equitable estate lasted only during "the life of her husband, so that in this view of the case she had an equitable interest during the joint lives of herself and husband, with a legal remainder during her own life; and this reversionary interest could not, according to the case of Stisse v. Everitt,(b) be conveyed during the coverture.

The contract of a married woman is void, and so far as the agreement rested in contract it is wholly invalid against Mrs. Nelson.

The case of Witts v. Dawkins does not apply. There the husband and wife offered to make a good title by fine or otherwise, which it is plain they might do by the execution of the power of appointment, which was vested in the wife.

THE MASTER OF THE ROLLS:-This estate was vested in Mrs. Waterworth for her life for her separate use. Now supposing a legal estate to have been vested in her, a court of law would take no notice of the words “for her separate use," but in this court those words would give her during coverture the same right over the estate as she would have had if she had been a feme sole.[1] Having that right, she enters into a contract, whereby, in con

(a) 12 Ves 501.

(b) 1 Myl. & Cr. 37. [1] Vide Tullett v. Armstrong, 1 Beav. 1. S. C. 1 Keen, 430, 435, n. 1. 4 Myl. & Cr. 377. Johnson v. Johnson, 1 Keen, 648. Newlands v Paynter, 4 Myl. & Cr. 408. Scott v. Davis, id. 89. Simons v. Horwood, 1 Keen, 7. Acton v. White, 1 Sim, & Stu. 429, 432, n. 1. Vizoneau v. Pegram, 2 Leigh's (Virg.) Rep. 183. A feme covert, with respect to her separate estate, is to be regarded in a court of equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate. Jaques v. Methodist Ep. Church, 17 Johns. Rep. 548. S. c. 1

1840. Martin v. Swannell.

sideration of a sum of 1201., she agrees to execute a mortgage of this estate. That which was vested in her and over which her power extended was her life estate. It is true that her life might be prolonged beyond the life of her husband, if so, the consequence would be, that she would then have, both in equity as well as at law, an absolute power of disposition over that life estate, and I cannot say that I think that the analogy of a reversionary interest in a *chose en action in any way applies to this case. It ap- [*249] pears to me that she had a power to enter into this agreement, which must be specifically performed with costs, and it must be declared that the plaintiff's mortgage is entitled to priority over that of Mr. Tolson.[2]

1840 March 11, 12, 19.

MARTIN v. SWANNELL.

A testator gave his real and personal estate to his wife for life, and after her decease "unto and amongst his three children, P., E. and T., and their lawful issue, in such proportions, manner and form, and subject to such charges, &c., as his wife should appoint:" Held that in default of appointment, the children took estates tail, and that an appointment to a deceased child and the heirs of her body was invalid.

THE testator having given his real and personal estate to his wife for life. proceeded to make a distinct gift as follows:-" And from and after the decease of my said wife, I give, devise and bequeath all my aforesaid real and personal estate, unto and among my three children, Phæbe, Elizabeth and Tryce, and their lawful issue, in such propertions, manner and form, and subject to such restrictions, charges and declarations, as she my said wife by &c., &c., shall appoint." There was no gift over in default of appoint

ment.

The testator died in 1831, leaving his wife and three children surviving. In 1833 the testator's daughter Phoebe died, leaving a son and two daughters; and subsequently in 1835, the widow, by deed reciting the death of Phoebe leaving children, appointed the real and personal estate (except one acre and 1007.) "to her daughters Phœbe and Elizabeth, and to her son Tryce, and the heirs of their respective bodies, in equal shares, as tenants in common ;" and she appointed the one acre and the 1007. to all the persons

And though a particular mode of settlement, it will not prenegative words restraining her Therefore if the wife enters her separate property, a court

Johns. Ch. Rep. 450. 2 Johns. Ch. Rep. 543. 3 Johns. Ch. Rep. 77. of disposition be specifically pointed out in the instrument or deed clude her adopting another mode of disposition; unless there are power of disposition, except in the very mode so pointed out. Ib into any agreement, clearly indicating her intention to affect by it of equity, if there be no fraud, or unfair advantage taken of her, will apply her separate property to satisfy such engagement. Ib.

[2] Vide Knowles v. McCamley, 10 Paige, 342, 346.

1840. Martin v. Swannell.

objects of her power as joint tenants, and to their heirs, executors, [*250] *administrators and assigns, and if need be to the heirs of their bodies for the largest estate which she had the power to appoint; and the shares of Phoebe she declared was to be subject and charged with the payment to her daughter Elizabeth of 600l. and she appointed the same to Elizabeth accordingly.

The widow died in 1835, and a bill having been filed to ascertain the rights of the parties, the cause now came on for hearing.

Mr. Kindersley and Mr. P. S. Follett, for Tryce Martin the heir-at-law of the testator, contended that the appointment of a share to Phoebe and the heirs of her body was invalid, Phoebe being dead at the time; and there being no gift over, that this share in the real estates was therefore undisposed of, and belonged to the heir-at-law of the testator. Boyle v. The Bishop of Peterborough,(a) Butcher v. Butcher.(b)

Mr. Pemberton and Mr. Webster, for the testator's daughter Elizabeth and her husband, admitted the invalidity of the appointment to Phœbe, and contended that there was a gift to the children of the testator in tail, subject to a power of appointment vested in the widow. They cited Brown v. Higgs,(c) The Duke of Marlborough v. Godolphin,(d) Harding v. Glyn,(e) Casterton v. Sutherland,(g) Lyon v. Mitchell, (h) Jesson v. Wright.(i)

Mr. Koe, for the son and heir of Phoebe, contended, that she took [*251] an estate tail, either under or in default "of appointment, and that this share had therefore descended to her heir.

Mr. Tinney, for the younger children of Phoebe, admitted the appointment to her to be void, but contended, that under the word issue, the children took by purchase distributively. Hockley v. Hockley v. Mawbey.(k)

Mr. Kindersley in reply.

THE MASTER OF THE ROLLS-I must consider the appointment to Phœbe and the heirs of her body as invalid, but that the 600l. were well appointed. The only remaining question is, whether an appointment to the children of Phoebe would have been a good appointment, if so all the rest will follow.

March 19.-THE MASTER OF THE ROLLS :-In this case the widow of the testator, Robert Martin, has not duly exercised her power of appointment, as to an undivided part of the estate devised by his will, and the question is, to whom the unappointed share belongs. [His Lordship stated the devise.] There is no gift in default of appointment, so that the right to the unappointed share depends entirely on the effect of the words just stated.

A devise unto and amongst the three children and their lawful issue would entitle the three children to the real estate as tenants in common in tail. To

(a) 1 Ves. jun. 299. (d) 2 Ves. 61.

(h) 1 Mad. 467.

(b) 9 Ves. 382.

(e) 8 Ves. 570.

(i) 5 Maule & S. 95. 2 Bli. 1.

(e) 8 Ves. 561. 5 Ves. 506.

(g) 9 Ves. 445. Sug. Pow. 6th edit 176. (k) 1 Ves. jun. 142.

1839.-Warburton v. The London and Blackwall Railway Company.

the words which give the estate are immediately subjoined words creating the power by which the wife is enabled to nominate and [*252] determine the proportions, manner and form, in which the shares are

to be taken, and the restrictions, charges and declarations, to which they are to be subjected; and it is argued, that the words creating this power clearly show an intention that the issue of the children were to take distributively in concurrence with their parents; that all persons comprised within the meaning of the word "issue," must be deemed to be distinct objects of the power; and that as the word "issue" denotes the object of the power, it must also be taken to denote distinct objects of the devise, and cannot be construed as a word of limitation.

The case of Hockley v. Mawbey,(a) was cited as an authority for this argument; but in that case the devise was to the testator's son Richard, and his issue lawfully begotten, to be divided among them as he should think fit. The issue were objects of the power to be exercised by the father; and it is plain, that as amongst themselves, they were to take distributively. In the present case it does not appear that the testator has employed words from which it is necessary to be inferred, that the children and all their issue who might come into esse in time, were to take concurrently and distributively.

Supposing the estates given to be estates tail in the children, the issue would take by way of limitation; and the parents, having estates tail, might do the things to which the power extended; and the power not being exercised by the widow, I think that the words giving the estate must be construed in the ordinary way, and that the effect of them is to give the estates tail in the real estate to the children of the testator.

*Warburton v. THE LONDON AND BLACKWALL RAILWAY COM- [*253].

1839: December 5, 6.

PANY.

The plaintiff obtained a special injunction, and the defendants subsequently filed a general demurrer, after which, and before the demurrer had been set down, the plaintiff obtained an order of course to amend," without pr judice to the injunction :" Held regular.

After a demurrer, the plaintiff may, before it has been argued, obtain an order of course to amend; the only question is, what costs he is to pay, and that depends upon whether the demurrer has been set down or not.

On the 16th of November this bill was filed, and on the 18th the plaintiffs obtained ex parte a special injunction restraining the defendants from proceeding in their excavations near the plaintiff's houses.

On the 25th of November the defendants moved before the Vice-Chancellor to dissolve the injunction, which motion was standing for judgment.

(a) 1 Ves. jun. 142.

1839.-Warburton v. The London and Blackwall Railway Company.

On the 26th of November the defendants filed a general demurrer to the whole bill, and on the following day, (the 27th of November,) and before the demurrer could be set down, the plaintiff, upon petition, obtained as of course at the Rolls an order "to amend their bill as they should be advised, without prejudice to the injunction issued in this cause, upon payment of 20s. costs," and undertaking to amend within three weeks.

It was now moved on behalf of the defendants that this order to amend should be varied by omitting the words "without prejudice to the injunction issued in this cause."

Mr. Pemberton and Mr. Bigg, in support of the motion, contended, that by obtaining an order to amend after the demurrer had been filed, the plaintiff had submitted to the demurrer and admitted that there was no equity to sustain the bill, and that consequently there could be no equity to support

the injunction; that if the demurrer had been allowed on argu[*254] ment, the cause *would have been out of court, and the injunction

would have gone, unless the court upon an examination of the merits thought fit to order otherwise; that consequently an order of this description was not an order of course, but ought, if at all, to have been obtained on a special application showing the merits; that the plaintiff by his amendments might possibly strike out the very facts on which his right to the injunction was founded.

Mr. Kindersley and Mr. G. Russell, contra :-When an injunction has been granted on the merits a motion to amend without prejudice to it is a motion of course that was decided in Pratt v. Archer. a) The case of a common injunction is different; so far, then, the order is regular, and it cannot be affected by the demurrer which has never been set down for argument. The court will never suppose that the plaintiff will, in amending the bill, strike out the very merits which sustain his injunction.

The defendants are irregular in asking to vary the order: the proper application would have been to discharge it altogether.

Mr. Pemberton, in reply :-The defendants could not discharge the order altogether, for so far as it seeks liberty to amend, it is regular.

THE MASTER OF THE ROLLS :-An order to amend will not prejudice either the special or common injunction,(a) and it would be so whether [*255] the words "without prejudice" were inserted or not; the usual course, however, is to insert these words.

In this case a general demurrer has been interposed between the order for the injunction and the order to amend; and the question is, whether that makes any difference. It is said that the order to amend after demurrer admits that there are no merits; that may be so for some purposes, but is not so in a practical sense.

I have nothing to do with the amendments which the plaintiff may make;

(a) 1 S. & S. 433; and see 2 Sim. 488, and the Second Ger.eral Order of 9th May, 1839, 1 Beavan,x.