Wife's separate estate.

Restraint on alienation.

(p) Stat. 8 & 9 Vict. c. 106, s. 7; see above, p. 816, n. (a).

(q) Pp. 816 sq.

(r) See Taylor v. Meads, 4 De G. J. & S. 597, 604, 605; Wms. Real Prop. 306, 19th ed.

(s) Taylor v. Meads, 4 De G. J. & S. 597; see Willock v. Noble, L. R. 7 H. L. 580; Wms. Real Prop. 306 sq., 316, n. (i), 19th ed.

(t) Johnson v. Gallagher, 3 De G. F. & J. 494; Pike v. Fitz-gibbon, 17 Ch. D. 454.

(u) Hall v. Waterhouse, 5 Giff. 64: see above, pp. 816 sq.

Wife's equitable estate tail being her separate estate.

Removal of a restraint on anticipation.

Originally, a trust of lands for the separate use of a married woman could only arise by act of parties; as by ante-nuptial contract between husband and wife, or by the express provision of those by whom the property was bestowed (e). The Married Women's Property Act, 1870 (f), provided that, subject and without prejudice to the trusts of any settlement affecting the same, the following property acquired during her marriage by any woman married after the passing of that Act should belong to her for her separate use; namely, any personal property (g) to which she might become entitled as next of kin or one of the next of kin of an intestate (h), and the rents and profits of any freehold, copyhold or customaryhold property which should descend upon her as heiress or co-heiress of an intestate (i). This Act did not confer upon married women, or enable them to dispose of, any separate legal estate in the property so secured to them, but only gave them the same equitable interest as they would have enjoyed under an express trust for their separate use, together with the power of alienation incident in equity thereto (k).

Married Women's Property Act, 1870.

(z) Tullett v. Armstrong, 1 Beav. 1, 4 My. & Cr. 390; Baggett v. Meux, 1 Ph. 627; Cooper v. Macdonald, 7 Ch. D. 288; Bateman v. Faber, 1898, 1 Ch. 144; see Wins. Real Prop. 307 - 309, 19th ed.; Wms. Pers. Prop. 482, loth ed.

(y) Pike v. Fitzgibbon, 17 Ch. D. 454.

(z) Stat. 3 & 4 Will. IV. c. 74, s. 40.

(a) Cooper v. Macdonald 7 Ch.

D. 288

(b) Robinson v. Wheelwright, 21 Beav. 214, 6 De G. M. & G. 535

(c) Stat. 44 & 45 Vict. c. 41, s. 39.

(d) The Court is exceedingly chary of exercising the jurisdiction so conferred; He Little, 40 Ch. D. 418; Re Pollard's Settlement, 1896, 1 Ch. 901, 2 Ch. 552; Re Blundell, 1901, 2 Ch. 221.

By the Divorce Acts of 1857 and 1858 (/), in every case of a judicial separation the wife shall, from the date of the sentence and whilst the separation shall continue, be considered as a feme sole with respect to (1) property of every description which she may acquire or which may come to or devolve upon her (m), (2) property to which she has become or shall become entitled as executrix, administratrix or trustee since the sentence of separation, and (3) property of or to which she is possessed or entitled for an estate in remainder or reversion (n) at the date of the decree; and all such property may be disposed of by her in all respects as a feme sole, and shall, if she shall die intestate, go as the same would have gone had her husband been then dead; provided that if she shall again cohabit with her husband, all such property as she may then be entitled to shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst separate. Under these enactments, the wife can during the separation dispose as a feme sole (without the necessity of her husband's concurrence or of acknowledgment) of all estates or interests in land, to which she may become entitled after the date of the decree (o), notwithstanding that the same were given to her without power of anticipation (p), and also of all estates in remainder or reversion (q), to which she is entitled at the time of the decree, whether the same have fallen into possession or not(r). But the Acts give her no power to dispose of any estates or interests to which she is entitled in possession, and not in reversion nor in action (s), at the time of the decree; so that if at that time she were entitled in possession to lands settled for her separate use without power of anticipation, the Acts do not remove the restraint, and she can no more alien the lands during the separation than she could whilst living with her husband (t). Under the same Acts (u), where a wife deserted by her husband has obtained a protection order, she is during the continuance of the order and as from the date of the desertion (x), in the like position in all respects with regard to property as if she had obtained a decree of judicial separation. By the Summary Jurisdiction (Married Women) Act, 1895 (y), a separation order made thereunder shall while in force have the effect in all respects of a decree for judicial separation on the ground of cruelty.

Judicial separation.

(e) Wms. Real Prop. 309, 19th ed.

(/) Stat. 33 & 34 Vict. c. 93, passed 9th Aug. 1870.

(g) Including, of course, chattels real.

(A) Sect. 7.

(i) Sect. 8, which only gives the rents and profits, and not the fee simple, of such property for her separate use; Johnson v. Johnson, 35 Ch. D. 345.

(k) Howard v. Hank of England, L. R. 19 Eq. 295, 300, 301; Johnson v. Johnson, 35 Ch. D.

345, 349; Wms. Conv. Stat. 377 - 382.

(/) Stats. 20 & 21 Vict. c. 85, s. 25; 21 & 22 Vict, c. 108, ss. 7, 8.

(m) It has been held that under these words the wife has the right to receive or recover any chose in action, to which she was entitled hut which had not been reduced into possession at the time of the decree; Johnson v. Lander, L. R. 7 Eq. 228; He Coward and Adam's Purchase, L. R. 20 Eq. 179; Nicholson v. Drury, etc. Co., 7 Ch. D. 48.

(«) These words appear to include a reversion expectant on a lease for years; see Wms. Real Prop. 324, 325, 19th ed.