ently of the debts, contracts, engagements, control, interference or intermeddling of her intended or any future husband.

The marriage was celebrated shortly after the date of this deed. On the 6th of August, 1858, T. C. Knight being in custody for debt, the detaining creditor obtained a compulsory vesting order of the Insolvent Debtors' Court, under the 30th section of the 1 & 2 Vict. c. 110, vesting all the real and personal estate and effects of the prisoner in the provisional assignee. This order was discharged on the 30th of September, with the consent of the creditor, the prisoner having been discharged from custody without taking the benefit of the Act. The plaintiff at first claimed that her husband's interest in the settled property became forfeited on the vesting order being made, and notwithstanding the subsequent order discharging it; but the husband having afterwards, on the 20th of October, 1858, mortgaged his life estate and interest to the defendant J. Clark, the plaintiff contended that, at all events, by this dealing with the property, her husband's interest was forfeited from the date of the mortgage.

Subsequently to the mortgage, several judgments were obtained and registered against T. C. Knight, and it was principally for the purpose of protecting the property against these judgments that the suit was instituted.

Mr. Rolt and Mr. Hislop Clarke, for the plaintiff.

9

Mr. Giffard, Mr. R. W. E. Forster, Mr. Caldecott, and Mr. J. J. Smale, for the various defendants.

WOOD, V. C. It has been settled ever since the case of Lockyer v. Savage, 2 Str. 947, that where a person attempts to limit his own property to himself for life, with a provision that it shall go over on bankruptcy, such a provision is void as against the bankrupt's assignees; and in Ireland the same rule has been applied in cases of insolvency. Mr. Swanston, in his learned note to Wilson v. Greenwood, 1 Swanst. 471, 481, says, "The general distinction seems to be, that the owner of property may, on alienation, qualify the interest of his alienee by a condition to take effect on bankruptcy; but cannot, by contract or otherwise, qualify his own interest by a like condition determining or controlling it in the event of his own bankruptcy, to the disappointment or delay of his creditors; the jus disponendi which for the first purpose is absolute, being in the latter instance subject to the disposition previously prescribed by law." The rule, as I said before, has been extended

In the report of Knight v. Browne, which appears in 4 L. T. R. N. S. 206, the following report of Mr. Caldecott's argument is given:

"Caldecott, for Clarke, the mortgagee, contended that at all events the interest which the plaintiff took under the deed before the marriage-settlement could not be upheld, as being a voluntary settlement without consideration and within the statute of Elizabeth; that the mortgagee must prevail so far (Brandon v. Robson, 18 Ves. 429); that the limitation in settlement was bad as against public policy, and a fraud upon the general creditors whether under a bankruptcy or insolvency. Rochford v. Hackman, 9 Hare, 475." See, also, report of the same case, 9 W. R. 515, 516.

in Ireland to cases of insolvency; but it has never before been attempted to apply it to a case of voluntary alienation. What fraud is there on anybody in a person settling his property on himself until he shall make some attempt to hand it over to another-in consideration of marriage, it may be, or for any other consideration? That anybody can be deceived by it, is out of the question. The clause of forfeiture is contained in the very deed by which the life interest is created; and the case is very different from Phipps v. Lord Ennismore, 4 Russ. 131, where the trusts to take effect upon alienation were contained in a separate deed, by which the trustees had an option to apply the income for the benefit of the settlor himself, or his wife or children. Lord Lyndhurst there held, that the transaction was in its very nature fraudulent, and the deed could not be supported. But the very point in this case has been decided by the Master of the Rolls in Brooke v. Pearson, 5 Jur. N. S. 781, where the husband's property was settled in trust for the husband, during the joint lives of himself and his wife, until he should sell, mortgage, assign, charge or in any way encumber all or any part of the income before the same should become due, &c.; and then upon trust to retain £300 a year, and pay the same to the wife to her separate use, without power of anticipation. The husband afterwards. mortgaged his interest, and the Master of the Rolls held, that the title of the wife vested on the execution of the mortgage. There will be a declaration that the plaintiff, upon the mortgage to Clark, became entitled for her separate use to the income of all the property included in the settlement from the date of the mortgage; with an account of the rents from the date of the mortgage, the trustees retaining thereout their costs of the suit; and the costs of the suit, including the costs retained by the trustees, must be paid to the plaintiff by the defend

ants.

In re DETMOLD.

(Chancery Division, 1889. 40 Ch. Div. 585.)

Originating summons to determine whether a forfeiture clause in a settlement was valid.

By a marriage settlement dated the 24th of August, 1881, it was declared that a sum of stock already transferred by the husband to the trustees of the deed should be held by them upon trust to pay the income to the husband “during his life, or till he shall become a bankrupt, or shall assign, charge, or encumber the said income, or shall do or suffer something whereby the same, or some part thereof, would through his act, default, or by operation or process of law, if belonging absolutely to him, become vested in or payable to some other person or persons;" and from and after the determination of the aforesaid trust in favor of the husband the trustees were to pay the income to the wife during her life, for her separate use. On the 8th of June,

1888, a creditor recovered a judgment for debt against the husband, and on the 13th of July he obtained an order in the action, restraining the trustees from paying the income to the husband. On the 19th of July the creditor obtained an order in the action, appointing himself receiver of the income due or becoming due upon and arising from the stock comprised in the settlement. This order was made in the presence of the husband. On the 25th of September, 1888, a receiving order in bankruptcy was made against the husband, and he was afterwards adjudicated a bankrupt upon an act of bankruptcy committed on the 29th of July. The question was, whether the forfeiture had taken effect in favor of the wife, or whether the forfeiture clause was void as against the trustee in the bankruptcy.

Muir Mackenzie, for the trustee in the bankruptcy.

NORTH, J. The question is, whether the life interest given by the settlement to the wife is now subsisting, or whether it is invalid as against the trustee in the bankruptcy of the husband. In my opinion the wife's life interest is valid as against the receiver appointed by way of equitable execution by the order of the 19th of July, because he was merely a particular creditor. A settlement by a man of his. own property upon himself for life, with a clause forfeiting his interest in the event of alienation, or attempted alienation, has never, so far as I know, been defeated in favor of a particular alienee; it has only been defeated in favor of the settlor's creditors generally, on the ground that it would be a fraud on the bankrupt law. Under the trusts of this settlement the wife is now clearly entitled to the income, if the prior life interest given to the husband has legally come to an end. In my opinion the appointment of a receiver by the order of the 19th of July established that the husband had done or suffered something whereby the income of the trust fund, or some part thereof, "would through his act, default, or by operation of law, if belonging absolutely to him, become vested in or payable to some other person." It was a decision arrived at in the presence of the husband that, as between him and the judgment creditor, the income belonged to the latter. The trustee in the bankruptcy is also bound by that order, because the bankruptcy did not commence until the 29th of July. Before that date the husband had done an act, had suffered something, by which the right to receive the income had become vested in another person, and, therefore, the gift over in favor of the wife had taken effect. It is said that a gift over of a man's own property in the event of his bankruptcy is void, and no doubt that is so. But it has been held that a gift over in the event of a voluntary assignment by him is valid. This was established by Brooke v. Pearson, 27 Beav. 181, and Knight v. Browne, 9 W. R. 515, and I think the principle of those decisions applies to an involuntary alienation by operation of law in favor of a particular creditor. The distinction between those cases and a clause of forfeiture in the event of an alienation

in favor of creditors generally resulting from bankruptcy, was pointed out by Vice-Chancellor Bacon in Ex parte Stephens, 3 Ch. D. 807. In my opinion, those authorities show that the limitation of the life interest to the settlor was validly determined by the fact that, in consequence of the order appointing the receiver, he ceased to be entitled to receive the income. This took place before the commencement of the bankruptcy, and, therefore, the forfeiture is valid as against the trustee in the bankruptcy.

NOTE.-On annuities forfeitable on bankruptcy or alienation, see Gray, Restraints on Alienation, §§ 83-89.

CHAPTER XLV

RESTRAINTS ON THE ALIENATION OF ESTATES OF INHERITANCE

PIERCY v. ROBERTS.

(Court of Chancery, 1832. 1 Mylne & K. 4.)

Thomas Roberts, by his will dated the 18th of January, 1829, bequeathed to his executors the sum of £400 upon trust, to pay, apply, and dispose thereof, and of the interest and produce thereof, to and for the sole use and benefit of his son, Thomas Jortin Roberts, in such smaller or larger portions, at such time or times immediate or remote, and in such way or manner as they the said executors, or the survivor of them, or the executors or administrators of such survivor, should in their judgment and discretion think best: and, after bequeathing to his executors the further sum of £400 upon similar trusts, for the benefit of his son John Prowting Roberts, the testator proceeded as follows: "And, in case of the deaths of either or both of my said sons, Thomas Jortin and John Prowting, before the whole of the said. several sums of £400 and £400, and the interest thereof respectively, shall have been paid or applied for the purposes aforesaid, then I will and direct that the unapplied part or parts thereof respectively shall sink into and become part of my residuary personal estate, and go and be applied therewith as hereinafter mentioned:" and the testator thereby appointed his wife, Ann Roberts, his residuary legatee, and the said Ann Roberts and John Jortin executors of his said will.

The testator died in July 1829, and in May 1830 the testator's son Thomas Jortin Roberts took the benefit of the Insolvent Debtors' Act. Previously to May 1830, Thomas Jortin Roberts had received several sums from the executors, amounting in the whole to £156; and since that period, and before the filing of the bill, he had received several other sums, amounting together to £112. The bill was filed by the assignee of the insolvent's estate against the executors of the testator, to recover the legacy of £400 and the interest thereof, or so much. thereof as remained unpaid at the time of the discharge of the legatee under the Insolvent Debtors' Act.

THE MASTER OF THE ROLLS [SIR JOHN LEACH]. The question is, whether this legacy passed to the assignee of the insolvent upon the insolvency of the legatee; or whether it may remain in the hands of the executors, to be applied, at their discretion, for the benefit of the