Having thus considered those propositions, we shall now proceed to consider the manner of bequeathing to married women and infants, and of appointing guardians: conditions not to trouble executors, and for preventing indiscreet marriages.

When any estate or effects is intended for a married woman, it is generally devised or bequeathed to some person in trust for her, or to be for her sole and separate use, with directions that her receipt alone shall be a sufficient discharge for the same; as thereby to prevent what is given being subject to the husband's control. If any real estate is devised to her in fee-simple, and without any restriction, it immediately vests in her on the testator's death, and will

in ventre sa mere, is so described as to ascertain the object intended to be pointed out, it may take under that description; as in the case of a bequest to the natural child with which a woman is now enseint, without reference to any person as the father; nor would such a bequest be invalidated by the testator giving as a reason for the legacy, that he believed he was the father of such child. Gordon v. Gordon, 1 Meriv. 141. But if the bequest is to an illegitimate child with which a woman is pregnant by a particular man, the testator for instance, the bequest altogether fails. Eart v. Wilson, 17 Ves. 528. The reason of the distinction is, that in the latter case, the foundation of the bequest is the fact of the child being the child of the testator, and as the truth of that fact cannot, on grounds of public policy, be suffered to be sustained by evidence, the rule applies, that a man cannot give to an illegitimate child, as his own, until it is known to be, or has acquired a reputation of being his. But, in the former case, where the bequest is to the child with which a woman is pregnant generally, describing it merely as the future offspring of the mother, no uncertainty prevails, and there is no fact to be tried which can possibly lead to indecent evidence. When the intention in favour of illegitimate children is clear, they may, if they have obtained a name by reputation, take either by a description amounting to a designatio personarum, or, without being named, they may take under the general description of children, as a class. Metham v. The Duke of Devon, 1 P. Wms. 529.; Wilkinson v. Adam, and Beachcroft v. Beachcroft, supra.

have the same effect as to the husband's curtesy as heretofore shewn. x And if any legacy or personal estate is given to a married woman absolutely without any restriction, it will be as if the same were given to the husband, as we shall see under a subsequent head, where further mention will be made concerning bequests to married women (25). When any real estate is intended for an infant, it is usual to devise it to

* Page 119-122. The husband being entitled to the rents and profits of the wife's real estate during her life, and to hold the same as tenant by curtesy after her death, in case

he becomes a bankrupt, such interest as he had in the estate will be assignable by the commissioners to the assignees for his creditors.

(25) In equity, as at law, a gift to the wife is a gift to the husband, who, being bound to maintain the wife, is entitled to her property. A court of equity will, however, execute a trust for the sole and separate use of the wife, where the intention of the donor to that effect is unequivocally declared. The doctrine as to what expressions will be holden sufficient to constitute a trust of property for the separate use of a femecovert, is well collected and arranged by Mr. Clancey, in his Treatise on the Rights of married Women, p. 41. A bequest of bonds to a married woman, "whenever she should demand or "require the same," Dixon v. Olmius, 2 Cox, 414. ; a bequest in trust, "to pay the annual produce into her proper hands," Hartley v. Hurle, 5 Ves. 545.; a legacy to be vested in trustees "the income arising therefrom to be for her sole use "and benefit," Adamson v. Armitage, 19 Ves. 416. S.C. Coop. 283.; a bequest "for her sole and separate use and benefit, " and her receipts to be a sufficient discharge;" Wells v. Sayers, 4 Madd. 409.; a bequest "to be at her disposal," Kirk v. Paulin, 7 Vin. Abr. 95. pl. 43.; and a bequest" to her own use, independent of her husband," Wagstaff v. Smith, 9 Ves., 623., have all been considered gifts to her separate use. But a legacy to a married woman" to and for her own 66 use and benefit" does not, it seems, give a separate estate, Roberts v. Spicer, 5 Madd. 491. But see Ex parte Ray, 1 Madd. 199.; and it clearly does not, if the testator shews on the face of his will, that he knew the technical form of excluding the husband. Wells v. Sayers, 4 Madd. 409. So a mere bequest to her for life will not have that effect. Brown v. Clark, 3 Ves. 166. Lamb v. Milnes, 5 Ves. 517. Jacobs v. Amyatt, 1 Madd. 376. n.

some person or persons in trust for him till he attain twentyone years of age, with directions to the trustees how to manage the same in the interim. So, with respect to any legacy or personal estate that may be bequeathed to an infant; for the law will not trust an infant with any real estate; and as to legacies or personal estate, where the testator has not taken necessary care to preserve it for an infant, the courts wherein legacies are to be sued for, when applied to, are not negligent in taking the utmost care for the benefit of infants; the expense of which application may be saved by due care being taken in making the will. Trustees named in the will may also be appointed guardians by any father, who, we have seen, hath power to dispose of the custody of his children y; and the same, or such others as the testator shall choose, may be made executors.

There is no decided case that guardians can be appointed for a child by a stranger, during the life of the parent. If such be so appointed, and it be laid before the court of chancery how the child is disposed of, the court will take care that the child shall be educated according to his expectations (26). But where a father by his will named guardians for his natural child; on petition that the same might be appointed by the court, and they appearing in court and consenting to accept such guardianship, the master of the rolls thought there was no necessity to refer it to the master, to approve of proper persons to be guardians, the father having named them by his will, though, strictly speaking, he could not appoint testamentary guardians to his natural child. And his honour made the order accordingly a. And the

y Page 130.

a Ward v. St. Paul, 2 Bro, Cha.

Z Powel v. Cleaver, 2 Bro. Cha. Rep. 583. Rep. 500, 510.

(26) In a late case where a legacy was given to a father, on condition that he did not interfere with the education of his daughter, the court, on a bill by the father for the legacy, required from him security to that effect, to be approved by the master, Colston v. Morris, 6 Madd. 89.

same had been done by the lord chancellor in the year 1788b (27).

In default of the father's appointing a guardian, infants at fourteen years of whether male or female, may age, choose their own guardian (28); and for the personal estate, the ordinary usually assigns him; but for the real estate, it is the province of the lord chancellor to assign a guardian. The power and reciprocal duty of guardian and infant, who is termed in law the ward, during the continuance of the guardianship, are the same as that of father and child; and the infant cannot be sued but under the protection and joining the name of his guardian, he being to defend him against all attacks, as well by law as otherwise; and when the infant comes of age, must give him an account of all that he hath transacted on his behalf, and answer for all losses occasioned by his wilful delay or negligence. But an infant is allowed to sue either by his guardian or prochein amy, that is, his next friend, who may be any person that will

b Peckham v. Peckham, 2 Bro. Cha. Rep. 584.

(27) See Chatteris v. Young, 1 Jac. & Walk. 106.; where Sir Thomas Plumer, on the authority of these cases and without a reference, appointed, as guardians, persons who had been nominated by a testator to be guardians of his natural children, and who consented to undertake the guardianship.

(28) The only authority I can discover in support of this proposition is a passage in Co. Lit. 87. b., where it is laid down, that if a man die seised of an hereditament, which does not lie in tenure, the heir being within the age of fourteen years, and having no guardian assigned, may choose one for himself. But this passage is at variance with a late case, in which an infant of the age of seventeen, having appointed a guardian by deed, it was nevertheless held, that such an appointment did not supersede the duty and authority of the court of chancery, and it was accordingly referred to the master to consider of a proper person to act as guardian. Curtis v. Rippon, 4 Madd. 462.

undertake his cause; and it frequently happens that an infant institutes a suit in equity against a fraudulent guardian, who, if he hath abused his trust, the court will check and punish, and sometimes proceed to the removal of him, and appoint another in his stead. To prevent disagreeable contests with young gentlemen, it has become a practice with many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under its direction, and accounting annually before the officers of that court d.

As to conditions not to trouble executors, if a legacy is given on condition not to dispute the will, and the legatee commences a suit whereby he disputes the validity of the will, this is no forfeiture of the legacy, if there was justifiable cause of contesting it. And even though there is no probable cause, yet where a legatee, or other person interested, hath a right to see the will proved in solemn form, his making use of the right cannot, as it seems, be deemed a disturbance. The testator gives to B a legacy, on pain of forfeiture of it, in case he should give his wife, whom he made executrix, any trouble in relation to his estate; B brings his bill against the wife, for which there was very little colour, and amongst other things demands his legacy. The chancellor was of opinion that the suit was very frivolous, but would not declare the legacy forfeited. But in a case where a person by his will gave a legacy to his daughter, provided that if she or her husband refused to give a release, or should put the executor to any trouble, the same should go over to her sister's children. The daughter and her husband, being within the city of London, sue for her orphanage part. It was decreed that the legacy was forfeited; for however it might have been construed to be only in terrorem, yet being devised over, and by that means a right to this legacy being vested in a third person,

c Co. Litt. 135. n. 1. 13th edit. d 1 Black. Com. 463.

e 3 New. Abr. 479.

f Cha. Ca. 1.