Lake (a), where lands were settled in trust to sell and distribute amongst the settlor's children, after his death, and as to the shares of such as were married, to be paid into their hands" for their own proper use and benefit," it was held, that the shares did not vest in the wives as their separate estate. [The Chief Judge. The words in that case are not so strong as in the present one. The limitation to "their own proper use and benefit," means to their own use, and nothing more.] In that case, however, it was laid down as a clear rule, that Courts of equity will not deprive the husband of his right, unless there appears a clear intention manifested to exclude him. And that rule was acted upon by Lord Cottenham, when Master of the Rolls, in Massey v. Parker (b), where a testatrix gave the interest of her residuary property to her two grand-daughters, who were both unmarried at the date of the will, and directed that the interest should be for and under" their sole control," the principal to be equally divided for the use of their surviving issue, and that their mother should have no control whatever over it; one of the grand-daughters married after the death of the testatrix, and her husband became insolvent; and it was held, that the words of the will did not indicate an intention to exclude the marital control, and that the legacy to the grand-daughter passed to her insolvent husband's assignee. And it appeared, from the judgment pronounced in that case, that, even if the words had indicated an intention to give the interest of the property to the separate use of the granddaughter, the legacy would still have passed to the assignee of the insolvent husband; for a gift to the separate (a) 2 Russ. & M. 183; and see 4 Simons, 144. (b) 2 Mylne & Keen, 174. 1844. Ex parte 1844. Ex parte KILLICK. use of an unmarried woman will not restrict her right of disposing in any manner of the property given, and, consequently, of giving it, if she think fit, by the act of marriage, to her husband. Now we submit in the present case, that, when the testator bequeathed the furniture to his daughter "for her own sole use and benefit," his meaning was, by those words, merely to exclude the interference of her brother with the property, and not to exclude the rights of any future husband. In Massey v. Parker, Lord Cottenham says, "it requires very distinct and unequivocal expressions to create a separate interest in the wife." The testator here could not mean by his will to give the furniture to the separate use of his daughter, free from the control of any husband she might marry; otherwise he would have expressed himself in the same terms as in the devise of the freehold property, in which he expressly declares, that the interest of his daughter in that property should "not be liable to the debts, control, or engagements of any husband she might thereafter marry." These words, therefore, cannot be treated as mere surplusage, but must be construed as manifesting a different intention in the limitation of the freehold property. All the authorities on this subject are collected in the case of Tullett v. Armstrong (a), where the question was, whether, where property is given to the separate use of an unmarried woman, she can be restrained from anticipating it after her subsequent marriage, by force of a prohibition to that effect in the instrument of gift. Mr. Lewin was not heard in reply. (a) 4 Mylne & Cr. 377. VICE-CHANCELLOR KNIGHT BRUCE, C. J.-I apprehend it is clear, that, when property is given to a woman, whether married or unmarried, " for her own sole use and benefit," it is vested in her for her separate use, free from the control of the marital right. And the only question in this case is, whether, from anything to be collected from the contents of this will, a different meaning is to be given to those words. It has been argued, that a different construction must be given to those words in this case, because the testator has expressly declared that the freehold houses, without noticing the furniture, shall not be liable to the control of the husband, and that, therefore, where he devised and bequeathed the houses, with the furniture in one of them, " for the sole use and benefit" of his daughter, that expression must be taken to apply to the house, and not to the furniture. It appears to me, however, that those words do refer to the furniture, as well as to the house. The last observation in the argument, that those words, if applicable to the furniture, might only declare the testator's intention that his daughter should have the furniture for her sole use, separate from any claim of her brother, is ingenious, but not, to my mind, convincing, and does not induce me to depart from the opinion I entertain, that the testator intended to give the furniture to this woman, as well as the houses, for her sole and separate use. Mr. Swanston then stated, that a considerable portion of the furniture was, shortly before the bankruptcy, clandestinely removed by the husband from Brixton to Peckham. That removal, therefore, being inconsistent with the trusts of the will, it must be considered as being in 1844. Ex parte 1844. Ex parte the order and disposition of the bankrupt, and to belong to the assignees. The VICE-CHANCELLOR.-I do not think that any case of order and disposition is made. The Order of the Court, therefore, will be to declare that the petitioner was entitled, at the time of the issuing of the fiat, to such furniture and effects as her father left to her sole use by his will, including that portion of the furniture which was sold under the distress. Westminster, Where the fore he presented his petition. Ex parte HARRY PHIPPS.-In the matter of JUKES THIS was the petition of one of the bankrupts, to annul the fiat. Mr. J. Russell, for the petitioning creditor, took a preliminary objection to the hearing of the petition, ou the ground that the bankrupt had not presented it within twenty-one days after the advertisement of the bankruptcy in the Gazette, as limited by the 5 & 6 Vict. c. 122. s. 24 (a). Mr. Swanston, in support of the petition, said that he admitted all the requisites to support the fiat, namely, the petitioning creditor's debt, the trading, and the act of bankruptcy; but that, the petition to annul not being presented for the defect of any of those requisites, but on (a) See Appendix, p. x. quite a different ground, the provisions of the twentyfourth section did not apply. VICE-CHANCELLOR KNIGHT BRUCE, C. J.-I think it my duty, certainly, with unaffected deference, to bow to the recent decision of the Lord Chancellor (a), on the construction to be put on the restrictions imposed in the twenty-fourth section; but I feel as strongly as ever how dangerous to innocent parties a strict construction of that section might possibly become, and that individuals, not regularly liable to the bankrupt law, and withal perfectly solvent, might become irretrievably subject to the operation of a fiat. Still, I am prepared to adopt the view which has been taken, and to act upon the opinion which has been expressed by higher authority (in every sense) than my own, not only in its letter, but in its spirit. But, inasmuch as the present petitioner disavows, through his counsel, any intention of disputing the legal requisites of the present fiat, I do not think that he is precluded from petitioning this Court to annul it on other and distinct grounds, presuming, as I do, that the Lord Chancellor's decision only extended to prevent the bankrupt, after the twenty-one days, from raising any question as to the debt, trading, or act of bankruptcy. I shall be happy, however, to aid the respondents, if they deem it advisable, in bringing this matter before the Court above. Mr. Russell said, that he preferred going into the case on the merits. (a) See Ex parte Thorold, ante, p. 285. 1844. Ex parte PHIPPS. |