Jones

V.

Salter,

(25 May, 1815).

(Similar case.)

argument raised. Indeed, the same point, if point it may be called, had been decided in the earlier case of JONES v. SALTER (y), not reported till lately. There the income of a money fund was bequeathed to A., the wife of B., for her life, for her separate use, so that the same should not be subject to the debts, dues, or demands, and should be free from the control or interference of B., or of any other husband with whom she might at any time thereafter intermarry, and without any power to charge, incumber, anticipate, or assign the growing payments thereof. B., the husband, died, and A. the widow, as tenant for life, and the reversioner, petitioned for a transfer of the fund. Sir Wm. Grant, M. R., after some consideration, (of which we are only told the fact), made the order. Here, it will be observed, that not only the existing, but every future coverture, was expressly contemplated: and it may be thought that this is consequently a stronger case than Barton v. Briscoe. But the state of facts was the same in both cases. In both, the woman was sole at the time of the application, and the restriction was, therefore, not in force. As the doctrine of equity grounds itself on the disability of coverture, it neither advances nor retrogrades by the effect of decisions upon acts done when that disability did not exist. As a timely report of Jones v. Salter would probably have prevented Barton v. Briscoe, so it might have relieved us from WOODMESTON v. WALKER (2). That case arose upon the bequest of part of a residue, to be laid out in the purchase of a life annuity for A., for her own sole and separate use and benefit, and independent of any husband she might happen to marry, with a direction, that her receipts, notwithstanding her coverture, should be good and sufficient discharges for the same, and to be for her personal benefit and maintenance, and without power for her to assign or sell the same by way of anticipation or otherwise. A. was a widow at the date of the will, and not having married again, applied for payment of the fund. Sir John Leach, M. R., held, that A. Judgment of was not entitled to the absolute interest, inasmuch as the gift was subject to the contingency of a future marriage, when the

Woodmeston

V.

Walker,

(15 Aug. 1831). (Similar case.)

Sir John Leach.

(y) See 2 Russ. & M. 208.

(*) 2 Russ. & M. 197.

VOL. I.

L L

restriction would be operative. He observed, that, at law, a wife could have no separate estate, and it was only by the principles of a court of equity that such an estate was permitted for protection against the legal rights of the husband; that to give full effect to such protection, Equity permitted a restraint upon the power of disposition, which would be invalid in any other case; and he could not satisfy himself that there was any substantive distinction between a present coverture and a future coverture; it was a familiar case, (he added), that, where the interest of a legacy was given to an unmarried female for life, to her separate use in case of coverture, and the power of sale or anticipation was restrained, then, in case of a future marriage and a sale or anticipation of the interest during the coverture, the court held that sale or anticipation void, although, by the terms of the will, the life interest was not limited over upon the event. Now, this is a clear and correct exposition of the equitable doctrine; but the court may be thought to have failed in the application of its own principles to the facts of the particular case, where there was no separate property to be protected, and where the right of absolute ownership was not asserted during the coverture. The decree at the Rolls was reLord Brougham. versed by Lord Brougham, C., on the authority expressly of Barton v. Briscoe. After repeating the doctrine, again and again laid down, that Equity allows a restriction to be imposed on the dominion over separate estate, as a thing of its own creation, the better to secure it for the benefit of the object, his Lordship justly observed, that the operation of the clause against anticipation, where there was no limitation over, rested entirely on its connexion with the coverture, and on its being applied to a species of interest which was itself the creature of Equity; but that here there was a possibility only of coverture, and that the authorities did not sanction an inalienable interest in a feme sole, (which interest, till her marriage or after the husband's decease, she might otherwise deal with at discretion), because she might possibly marry and as to the argument, that the woman might have the property at her own disposal till she married, and that when that event happened, a sort of postponed fetter might attach, which would fall off upon her husband's death, and be again imposed should she contract a

Reversal by

Remarks on the grounds of that reversal;

second marriage, he observed, that this would be a strange and anomalous species of estate, and that it was not easy to conceive by what process or contrivance it could be effectually created, unless, perhaps, by annexing to the gift a limitation over to the trustees, to preserve it for the woman during the successive covertures (a). Now, so far as regards the point actually decided, this case carries the capacity of alienation no further than Barton v. Briscoe, and Jones v. Salter, and the judgment professedly founds itself upon the former case; and as to any dicta thrown out in the course of the judgment, there is nothing to warrant an inference that the court considered the gift, in respect of the separate enjoyment and restraint on alienation, as void in its creation. On the contrary, the inference rather is, that his Lordship considered the restriction, not as incapable, from the first, of taking effect under any circumstances, but only as inoperative under the actual circumstances; and, that, if the circumstances had been different, if marriage had supplied the occasion and reason of the protection, and the restriction had existed in connexion with coverture, the same judgment would not have been pronounced (6.). The argument that the interest was not absolutely disposable, because it was subject to the contingency of future coverture, seemed to forget that the restriction is a personal disability, designed to guard against an act of alienation extorted by coercion, or yielded to undue persuasion; and that the contingent personal disability of coverture could no more impair the capacity of the legatee to dispose of whatever interest was bequeathed to her, than contingent liability to attainder for felony can prevent a man from making a good title to his estate. And with respect to the device of a on Lord direction, that, when she became covert, it should vest toties quoties in trustees for her separate use, without power to anticipate, the answer is, that, although the gift were made wholly dependent on the contingency of marriage; as, if the fund were given, in case A., a feme sole, shall marry, to trustees for her

(a) But see Brown v. Pocock, 5 Sim. 663; 2 Russ. & M. 210.

(6.) Ante, 503, n. (4.).

on the argu

ment that the

gift was presently affected by the contingent restriction.

Brougham's

suggestion of a

gift over to

trustees during

every future co

verture;

- on the weak

ness of technical expedients,

separate use, without power of anticipation; still, the benefit of this contingent gift would be a present interest in her, and of course disposable by her, being sole. The difference would be formal, not substantial. By a gift over, or clause of cesser on when opposed alienation, the immediate taker is prevented from making an to general principles. absolute disposition, because he cannot dispose of an interest not his; but to hold that a woman, in her single state, is incompetent to dispose of her interest under a gift to herself in the married state, would be to contradict the principle of Brandon v. Robinson, which annexes the jus disponendi to property, in its most extensive sense, and as one of its inseparable incidents. Technical difficulties may be overcome by technical devices, but from the effect of general principles no artifice can escape.

We are still without any hint of the notion, that, unless coverture exist at the time when the gift is made, or takes effect, separate property, and restraint upon anticipation, are things impossible. But we now proceed to the consideration of some recent cases, in which the notion has either formed the ground of decision, or received countenance from the judicature.

The first defection from the received doctrine occurred in the case of NEWTON v. REID (6), which was adjudged before Woodmeston v. Walker, though not reported till after that case, nor cited in it. The question arose upon the bequest of a money fund, to be laid out in purchasing an annuity, to be held by trustees, from time to time, during the life of A., a single woman, and to pay and apply the same half-yearly into the proper hands of A., whose receipt alone, from time to time, notwithstanding any husband she might thereafter have, should be a sufficient discharge, it being the testator's express desire that the annuity should not be subject to the debts, management, control, will, or engagements of any husband she might have; but that she should not be at liberty, in any way whatsoever, to sell, assign, or any way dispose of the annuity, or if she did so, he declared such sale void and of no effect; his intention being, if any accident in life should unfortunately happen to her, that she should be kept from want. A. being married, (whether the marriage took place before or after the (6) 4 Sim. 141.

testator's death does not clearly appear, but it is presumed after), joined her husband in assigning the annuity for securing a debt, and afterwards petitioned to have the fund applied in payment of the debt, and the residue paid to the husband. The only case appearing to have been cited was Barton v. Briscoe. Sir Launcelot Shadwell, V. C., held, that, the annuity not having been given over upon alienation, the restrictions were void. The report is ex relatione-very short and unsatisfactory. We collect, however, from expressions of the same learned judge in subsequent cases, that whatever may be thought of Newton v. Reid, it is supported by the decision of the Lord Chancellor in Woodmeston v. Walker (c); that Newton v. Reid only went to this, that the restriction on alienation was rendered ineffectual by the context of the will (d); that, the policy of the law being in favour of the power to assign, the courts will not permit that power to be restrained by a fetter which is to take effect on a subsequent marriage; and that Newton v. Reid, as well as Barton v. Briscoe, proceeded on this principle (e). How the context of the will rendered the restriction ineffectual is not very apparent; and what Barton v. Briscoe and Woodmeston v. Walker really decided, was, not that the fetter was void in its creation, but that it was defeated in event (the woman not being married when the jus disponendi was exercised); and that present capacity to assign could not be impaired by a clause importing possible future incapacity. But in Newton v. Reid, the woman was married when the jus disponendi was sought to be exercised. The cases were, therefore, different in the very point which constitutes distinction (7.); the difference, indeed, would seem to (c) In Knight v. Knight, 6 Sim.

121.

(d) In Benson v. Benson, 6 Sim.

126..

(e) In Davies v. Thornycroft, 6 Sim. 423; stated post, 525.

the doctrine was set afloat.

(7.) "The cases which have raised the question are Newton v. Reid, By what cases Massey v. Parker, and Brown v. Pocock *. The orders in Newton v. Reid, and Brown v. Pocock, (the second case of the same name), were made by the Vice-Chancellor, as it would seem, without any argument. In each case property was given to the woman for her

* Vide ante, 516; post, 520.