On what reasoning such ported. sale, or at least sustain their actual exercise within certain limits (p), seem to stand more upon convenience than principle. Of the reasons commonly adduced in support of indefinite powers are sup- powers of sale, none is entirely satisfactory. 1. It is said that where the estate is regularly entailed, the power is good, be cause, like any springing use lying behind an estate tail, it is barrable (q). To this it may be answered, that the appointee would be in under the settlement, as the first cestui que use, and that the power, therefore, overrides the estate tail, instead of lying behind it; though it may be rejoined that such reasoning, however agreeable to abstract principles, impugns the dominion ascribed by the authorities to a tenant in tail over springing uses (r). 2. The power may be exercised within due limits, and therefore is not void in its creation (s). But it is a fatal objection to a springing use that it may not arise within due limits; and to apply a different rule to powers seems hardly consistent with principle. 3. When the proceeds are to be laid out in land, to be settled to the old uses, the power does not defeat the estate tail, but transfers it to other property; there is merely a change of title, and not a destruction of interest (t). This is, at most, an equitable answer to a legal objection. When Blackacre, entailed upon A., is sold under a power paramount, his estate tail is defeated, his interest is destroyed, as to Blackacre, both at law and in equity; and to say that other land (possibly leasehold, not capable of an entail) may be bought and substituted, under trusts declared of the money, cannot be a valid argument in support of the legal power over the land. 4. The power enables alienation. But a power of sale to A. and his heirs, suspended indefinitely over the fee, is open to the very same objection as an executory devise, to take effect whenever A. or his heirs shall do a given act, and such a devise is admitted to be bad (u). (p) Boyce v. Hanning, 2 Cro. & J. 334; Biddle v. Perkins, 4 Sim. 135; Powis v. Capron, Id. 138, n.; Waring v. Coventry, Id. 140, n.; 1 Myl. & K. 249; Wood v. White, 3 Jur. 117; see Doe v. Harris, 2 Dowl. & Ryl. 76. (2) 2 Sugd. Pow. 494. (r) Ante, 135; post, Vol.2, n.(156). (u) Fearn. Ex. Dev. c. 2, s. 6. : V. Separate Estate and Restraint upon Anticipation. SINCE the following observations were published, the im- Introductory portant case of Tullett v. Armstrong (u) has been heard and de- remarks. cided, first at the Rolls, and afterwards by the Lord Chancellor, on appeal. This decision has set at rest the controverted points. But the design of the dissertation now submitted again to the profession was not merely controversial; and as the judgment of the Master of the Rolls, proceeding, for the most part, on reasoning similar to that employed by the writer, sanctions the doctrine for which he had ventured to contend, in its whole extent, and as that judgment has been affirmed, on the maturest deliberation, by the Lord Chancellor, the text is retained without alteration, and, at the foot of the page, are placed those passages of their Lordships' judgments which support or illustrate the principal positions. A short statement of the case itself, and of the points ruled, is subjoined. Thus the student may, it is hoped, obtain a satisfactory view of, at once, the rise, progress, and actual state, of this interesting branch of equity-interesting, not only from its extensive practical influence, its moral bearing, and its anomalous nature, but from the ordeal which it has so recently and triumphantly passed through, and which, as teaching a great judicial lesson, has raised it to permanent, though fortuitous, distinction. No doctrine, perhaps, was thought to be more perfectly settled than the doctrine of separate estate and restraint upon anticipation, till some recent cases, more especially Newton v. Reid (v) and Massey v. Parker (w), involved the whole subject in confusion. Settled state of to a recent date; the doctrine up and scope; The doctrine was this:-a gift of the income of real or per- its nature sonal property, whether by deed or by will, in favour of a wo (u) Post, 538. -its origin and progress; Early recognition, and nature, of separate estate. man for life for her separate use, exempt from the control of Equity was the inventress of the whole doctrine. The policy of protecting women, in the state of coverture, induced the Court of Chancery to confer upon them the capacity of sole enjoy ment; an anomaly, which was established, though not without a struggle (y), at an early period (1.). In this instance, Equity contravened, openly and professedly, the principles of law;— the very object of the doctrine was to correct and control the legal consequences of marriage. The usual method was to vest the property in trustees, for the separate use of the woman, free from marital interference; but the intervention of trustees is not essential (2). Thus, a married woman acquired a distinct and independent provision, wholly unaffected by the coverture (a). Equity, having created this species of property, conformed to the law, by ascribing to it the incidents of property, so that the privilege was not confined to personal enjoyment, (x) See 2 Russ. & M. 205, 206. (z) Major v. Lansley, 2 Russ. & M. 355. See also Stead v. Nelson, 3 Jurist, 1046. (a) See Owden v. Campbell, 8 Sim. 551. (1.) "In this court a married woman has, for more than a century, been considered as capable of possessing property to her own use, independ ently of her husband; such property is called her separate estate; and, in respect of it, she is considered as a feme sole, enjoying, and capable of exercising, her rights as such."-Per Lord Langdale, in Tullett v. Armstrong*. * 1 Beav. 1. but included the full disposing power of sole ownership (b). This concession, however, rendered the protection inadequate; for, though the legal right of the husband was taken away, his moral authority and influence were not excluded (2.). For some time the court struggled, without effect, against its own doctrine. At length, recollecting that separate estate was purely the creature of equity, it drew the natural inference that equity must possess the right of imposing such laws as would render this peculiar modification of property most conducive to the purposes of its creation; and, so reasoning (c), determined that a gift to the separate use of a woman might be rendered a continuing personal provision, by expressly interdicting anticipation. This was merely a supplemental expedient, devised in the spirit of the original doctrine;—another acknowledged infraction of the rules of law (3.). Thus Equity completed what Equity (b) Hulmev. Tennant, 1 B. C. C. 15. (c) 11 Ves. 221, 223; 2 Mer. 487, 488; 18 Ves. 435; Jac. 605, 606; without restraint on alien ation, futile band's moral against the husinfluence. (2.) "The separate estate, unfettered, is no protection against the mo- Separate estate, ral influence of the husband; and many instances have occurred, and daily occur, in which the wife, under the persuasion or influence of her husband, has been, and is, induced to exercise her power of alienation in his favour, or for his benefit, and thus defeat the protection intended for her."-Per Lord Langdale, Ib. "A feme covert, with separate estate, not protected by a clause against anticipation, is, in most cases, in a less secure situation than if the property had been held simply upon trust for her. In the latter case, this court, with the assistance of the trustees, can effectually protect her; in the other, her sole dependence must be upon the husband's not exercising that influence or control which, if exercised, would, in all probability, procure the destruction. of her separate estate."-Per Lord Cottenham, Ib.*. (3.) "But as the separate estate itself owed its origin to the courts of equity, it was understood that the same courts might so modify it as to secure the protection intended, and accordingly it was intimated by Lord Thurlow, that, if a gift expressed that the separate estate should be incapable of assignment in anticipation, that intention would be carried into effect, and his Lordship himself set the example, in a case * (On appeal), 4 Jurist, 34; Sweet on Sep. Est. 28. Origin, and the clause principle, of against anticipation. -confined to married women. had begun. The professed object of the court was to secure a convenient provision for married women. We are not now to inquire into the soundness of the policy which dictated these deviations from the general law. It is enough, for our present purpose, to shew how, and why, they were established; and that, whether politically wise or not, they were at least practically acceptable to the people. But since Equity, consistently with the common law, held, as a general rule, that property carried with it the incidents of property, one of which incidents was the ability to alien, not even a life interest could, upon ordinary principles, be the subject of inalienable enjoyment; so that if real or personal estate was vested in trustees, upon trust to pay the income to a man for life, for his personal maintenance, with the strongest prohibition against alienation, the prohibition went for nothing (d). Of course, the same rule must apply to a woman in her single state; for no distinction could arise from the difference of (d) Brandon v. Robinson, 18 Ves. 429; sed vide ante, 438. in which he personally took an interest; and from that time, now nearly half a century ago, it has been usual to introduce into wills and settlements, a clause, giving to women real and personal estate for their separate use, without power of assignment by way of anticipation. And such clauses, though their operation has been considered to be, as undoubtedly it is, anomalous and irreconcilable with the ordinary legal rules, have been repeatedly carried into effect by this court, and provisions for families, to a very great extent, have been framed in reliance upon them."-Per Lord Langdale, Ib. "When this court first established separate estate, it violated the laws of property as between husband and wife; but it was thought beneficial, and it prevailed. It being once settled that a wife might enjoy separate estate as a feme sole, the laws of property attached to this new estate; and it was found, as part of such laws, that the power of alienation belonged to the wife, and was destructive of the security intended for her. Equity again interfered, and, by another violation of the law of property, supported the validity of the prohibition against alienation." -Per Lord Cottenham, Ib. |