CHAPTER V. tenure; ing with his concurrence under certain special circumstances of incapacity, separation, &c. (s); and the deed of a married woman, in every case, except that of her merely consenting as protector, must, in order to be operative under the act, be acknowledged (ss. 79, 45). -of copyhold With respect to legal estates in copyholds, the above provision, enabling married women to dispose of lands by deed, is confined to cases in which the disposition could not, before the passing of the act, have been effected by surrender (s. 77). The difficulty already stated to have existed before the act, in regard to the passing of the equitable interests of married women in copyholds, is wholly removed by the act, which not only enables married women to pass such interests by deed acknowledged (s. 77), but directs, that, on their surrender of such interests, they shall be separately examined in the same manner as if the estate had been legal, declaring such surrenders, as well as all surrenders antecedently to the act and similarly circumstanced, (the separate examination having been taken), to be valid (s. 90). -extends to money to arise land. The seventy-seventh section enables a married woman from the sale of to dispose of, release, or extinguish, by deed acknowledged, any estate in land; and the first section extends the meaning of the word estate to an estate in equity, as well as at law, and also to any interest, charge, lien, or incumbrance in, upon, or affecting lands, either at law or in equity. The word "estate," thus explained, seems comprehensive enough to embrace every kind of interest savouring of or connected with realty. Thus, to put a case of not infrequent occurrence in practice, where an in (8) Ex parte Mary Gill, 1 Bing. N. C. 168. As to copyholds, see Ex parte Ann Shirley, 5 Bing. N. C. 226; 7 Dowl. P. C. 258. terest, either in possession or reversion, and either vested or contingent, in money to arise from real estate directed to be sold, belongs to a married woman, it is conceived that she may release or extinguish such interest by a deed perfected with the ceremonies required by the act, especially as she might have bound it by a fine (t); and consequently that she may, with her husband's concurrence, elect, or join with the other interested parties in electing, to take the property in its unconverted state. It should seem, indeed, that she may even transfer her interest, as being, though pecuniary, connected with land, to a stranger, by a deed so perfected, and that, therefore, the reversionary and contingent interests of married women in money, to arise from the sale of real estate, may be effectually aliened (u); while, as to such interests in pure personalty, the wife's right by survivorship cannot be bound by any form of assurance, or by any judicial proceeding (x). With respect to the interests of a married woman, at law or in equity, and whether in possession, reversion, or contingency, in chattels real, such interests appear to be assignable by the husband in his marital right (y). We are informed, indeed, that where a term of years was vested in a trustee, in trust to pay the rents to B. for life, and from and after his death, to assign the term to the wife of B., Mr. Booth (in 1785) held, that B. and his wife could, by fine, make a good title to the purchaser, (t) May v. Roper, 4 Sim. 360; Ex parte Ellison, 2 Yo. & C. 528. (u) May v. Roper, supra. (x) Richards v. Chambers, 10 Ves. 580; Woollands v. Crowcher, 12 Ves. 174; Wade v. Saunders, 1 Turn. & R. 306; Hornsby v. VOL. I. Р Lee, 2 Mad. 16; Purdew v. Jack- (y) Donne v. Hart, 2 Russ. & CHAPTER V. As to the interwomen in chat ests of married tels real. and thought also that the title might be made good by the wife's consenting on a decree being made; an opinion which is pronounced (2) right as to the former point, but wrong as to the latter. As to both points, however, it should seem that the opinion was wrong, if it went to assert that either a fine or consent in court was necessary to pass the wife's reversion, which the husband alone was competent to alien (a). But a fine (i. e. sur concessit) might have been levied to pass leaseholds for years, so that if there be any case which requires the wife's concurrence in order to bind her interest in a chattel real, the substituted deed would be effectual; and where the interest cannot be reached without the aid of a court of equity, it should be considered, on behalf of purchasers and others, dealing with the husband or his assignees, whether, as against the wife, that aid would, under all circumstances, be unconditionally extended (b). With respect to interests settled to the wife's separate use, and to powers of appointment vested in her, the act neither disables a married woman from dealing with her separate property, or from exercising her powers, by other forms than those which it has prescribed, nor enables her, by such forms, to effect those objects. The legislature expressly disclaims (s. 78) all interference with powers vested in married women. The substitution of a conveyance by deed inrolled for matter of record has improved the state of the law, (2) Per Sir Lancelot Shadwell, V. C., in May v. Roper, 4 Sim. 360. (a) Donne v. Hart, 2 Russ. & M. 360. (b) See Sturges v. Champneys, 3 Jurist, 840; Sweet on Sep. Est. 63. The argument, that, as the devise was of a legal estate, the subject was not properly equitable, might have been answered in Lord Eldon's words:-"all the estates, to a certain extent, that is, during the continuance of the term, would be equitable estates." 3 Sugd. V. & P. 10th ed. 64. with respect to persons labouring under incapacity. The fine or recovery of a lunatic (c), of an infant (d), (unless impeached during the infancy), and of a married woman (e), appearing on the record as a feme sole, (unless avoided by the husband), were valid and irreversible at law, (the lunatic's or infant's recovery not being suffered by attorney), and their declarations of the use were also valid at law (f). In such cases, how gross and fraudulent soever, a court of equity alone was competent to relieve, by decreeing a re-conveyance (g). But the legal, as well as the equitable validity of the assurances of tenants in tail, and of married women, made according to the act, must depend, like all other assurances, on personal competency to make an ordinary deed; though, as to married women, the legislature has thought fit to require (s. 84) the facts of majority and soundness of mind to be certified (h). The new real-property acts, and, indeed, most of the modern acts, commence by defining the terms to be afterwards employed; not unfrequently attributing several meanings to the same term. This practice renders it necessary for the expositor either to look out every word as he proceeds, or to carry the glossary in his head. Will it not sometimes be a question, whether a term is employed in one of several given senses exclusively, or in which, and how many, of several given senses it is employed, and sometimes happen that the term cannot be (c) Beverley's case, 4 Co. Rep. 123 b; Mansfield's case, 12 Co. Rep. 124; Murley v. Sherren, 8 Ad. & Ell. 754. (d) Hungate's case, 12 Co. Rep. 122. (e) Shep. Touch. by Prest. 7; Stead v. Izard, Bos. & P. New Pr. 312. (f) Mansfield's case, 12 Co. Rep. 124. (g) Addison v. Dawson, 2 Vern. 678; Clerk v. Clerk, Id. 412. (h) See In re Sarah Luke, 1 Bing. N. C. 265. CHAPTER V. understood in any of the given senses? No care or skill can ensure the correct and consistent application of a new vocabulary, even when applied by the inventor himself, while the mere expounder cannot safely confide in the interpretation of any clause without recurring again and again to the definitions, by which the terms are often extended beyond, or diverted from, their natural import (¿). Thus, according to the definitions furnished by the act -"base fee;" under consideration, (s. 1), "base fee" is "exclusively that estate in fee-simple, into which an estate tail is converted, where the issue are barred, but persons claiming by way of remainder or otherwise are not barred;" as, where A., tenant in tail in remainder expectant on a life estate in B., with remainder over, makes a disentailing assurance, without B.'s consent as protector, and acquires to himself and his heirs (general), or conveys to a stranger and his heirs, an estate to endure so long as there shall be issue in tail, which estate is descendible, alienable, and -"estate tail;" devisable like an estate in fee-simple. An "estate tail" means, not only the thing it properly imports, but likewise "a base fee into which an estate tail shall have been converted," though a base fee has just been classed with a fee-simple, because it has not the limited qualities of an -"actual ten- estate tail. An "actual tenant in tail" is "exclusively the tenant of an estate tail which shall not have been barred," notwithstanding that "the estate tail may have been divested or turned to a right." Thus, if an estate tail had been discontinued (k) before the act, the person ant in tail;" (i) In the Tithe Commutation Act, 6 & 7 Will. 4, c. 71, s. 12, the word "land" is defined to include (inter alia) "hereditaments," though tithes are indisputably in cluded under the latter term, and are intended by the act to be excluded. (k) Ante, 134. |