Such has ever been the result of a contest between the rules of law and the reasonable desires of mankind. Re-establish trine. -And such has been the result in the present instance. ment of the doc- We are not a little indebted for the fortunate issue about to be noticed to the judicial qualities displayed on the occasion. Tullett V. Armstrong, (Rolls, Nov. 3, 1838; on appeal, Jan. 22, 1840). Separate use without power of anticipation -subsequent marriage covert. The case of Tullett v. Armstrong (a) arose upon two wills. The material facts (as stated in the judgment of Lord Langdale, M. R.) were these:-N. B., by his will, devised a share of certain copyhold property to his granddaughter M. A. for life, so that she might not anticipate her life estate, and that no husband might acquire any control over it; the testator also devised to her a moiety of other copyhold property, and the entirety of certain alienation while leasehold property, for life, and bequeathed to her a share of his residuary personal estate absolutely, and declared that those devises and bequests were to be free from any husband's control; but without imposing any restriction upon alienation; M. A. was unmarried at the testator's death :-A. B., by her will, gave to trustees a certain freehold messuage, upon trust to pay the rents to her niece M. A. for life, so that she should not sell her life interest, or raise money thereon by anticipation, and that the rents should not be subject to any husband's control. M. A. was unmarried at the date of the will, but married at the death of the testatrix. M. A., and her husband, executed deeds, purporting to charge her interests, under both wills, with annuities; and the bill was filed by the annuitant to enforce payment. Lord Langdale, M. R., held, that, as to those estates which, by the above wills, were given to M. A. for her separate use, without power of alienation, the annuitant had acquired no right under his securities; but that, as to the estates given by the first will to M. A. for her separate use, without any clause to restrain anticipation, the annuitant was entitled to the relief (a) 1 Beav. 1; (and see Clark v. Jacques, 1 Beav. 36). which he prayed. That decision was affirmed, as to both points, by Lord Cottenham, C., on appeal (b). It will be observed, that the facts of this case were favourable to the final settlement of the doctrine. First, there was a direct legal devise of real estate to the feme, for her separate use, without the intervention of a trustee (c); secondly, the property was given to her, for her separate use, with, as to part, a restraint upon anticipation, but, as to other part, without any such restraint; thirdly, she was discovert at the death of N. B., the testator, but covert at the death of A. B., the testatrix. Points present- Propositions ex doctrine. The doctrine of separate estate, as now settled, may be embodied in the following propositions:-1. That a gift to a wo- a state of the hibiting the acman, for her separate use generally, secures to her the sole enjoyment, and the sole dominion, during coverture, when and so often as coverture exists. 2. That such a gift, if accompanied by an express restriction on alienation, secures to her the sole enjoyment during coverture, when and so often as coverture exists, but such enjoyment will be strictly personal and inalienable. 3. But that, since the restriction is of no force, except in connexion with, and as a modification of, separate property, which ex vi termini supposes coverture, alienation, taking place during discoverture, will be effectual, notwithstanding the restriction. 4. That, as the effect of such alienation will not be defeated by a subsequent marriage, (the doctrine, as it stood before the late controversy, having been, to this extent, affirmed, or rather not disturbed), the only check, of which alienation admits, during discoverture, is a gift over, or a clause of cesser, (either of which may, it is conceived, be confined to the particular interest attempted to be aliened), or a power enabling trustees or others to revoke and resettle ;-the principle of the check being either deprivation, or a gift de novo, modified, and springing from the volition of a third party. 5. That, therefore, the date of the marriage is, with reference to the act of alienation, material, but is, in every other respect, immaterial. These propositions will be found, it is believed, to harmonise with the conclusions deduced, in the preceding essay, from the (b) 4 Jurist, 34; Sweet on Sep. Est. 36; and see Scarborough v. Borman, Id. 17. (c) And see Newlands v. Holmes, 4 Jurist, 282. Of the course recently pursued by the authorities, as they stood before the career of innovation began, and as they now once more stand. There still remain the unprotected periods of spinstership and widowhood, to call forth parental anxiety and professional ingenuity (d). Thus, then, the question which, during a period of more than nine years, divided the judicature, rather than the profession, Equity Bench; has happily ended in the restoration of this equitable doctrine, uncurtailed, more definitely propounded, and more authoritatively recognised. An apparently inadvertent adjudication (e), and too ready a disposition to adopt and carry out its principle, produced a sharp, but, in the result, a wholesome conflict. The parts taken by the three Equity Judges may, perhaps, be thus recorded:-first, the Vice-Chancellor judicially broached and maintained what the event has shewn to be an untenable distinction; next, the Lord Chancellor (then Master of the Rolls) appears to have erred, though rather in dicta than adjudication, chiefly, too, from assuming the Vice-Chancellor to be right; then, the Vice-Chancellor, having, somewhat unadvisedly, as it would seem, deprived separate estate of its practical value, expressed surprise that the Lord Chancellor should attempt to remove the worthless anomaly ;-at this juncture, the Master of the Rolls, having fortunately no theory to maintain, and feeling no repugnance at receiving the law from a source which the House of Lords had not disdained (f), interposed with a clear, firm, and comprehensive judgment, which the Lord Chancellor, withdrawing his own opinion, and, at the same time, necessarily (to give value and consistency to that withdrawal) overruling the Observations of (d) "In tracing the fluctuations Lord Cottenham, of opinion which have existed upon C., on the inefficiency of the questions relating to the separate restriction durestate of married women, it cannot ing discoverture. but be observed, that, so late as the cases of Woodmeston v. Walker, and Brown v. Pocock, (ante, 513, 518), Sir John Leach was of opinion, that, in order to preserve to a woman the benefit of a gift for her separate use, without anticipation, she ought not to be enabled to dispose of the pro perty while single or discovert; the contrary is now clearly established, but the power of providing for daughters, and against the chance of future want, is thereby greatly impaired." -Per Lord Cottenham, in Tullett v. Armstrong, ante, 439, n. (b). (e) Newton v. Reid, (decided in Dec. 1830); ante, 516. (f) See Lady Radnor v. Vendebendy, Butl. Co. Lit. 208. a., n (1). Vice-Chancellor's distinction, has, on a full review of all the authorities, solemnly ratified. To permit the discussion to continue was impossible; to establish a capricious distinction between the trust, and the restriction, seemed the worst possible conclusion; and it is never wise to call upon the legislature to remove a difficulty, from which the judicature, by a little address, by promptly exerting that adaptive faculty, which it is bound (g), as one of its highest, though most delicate, duties to cultivate, can effectually relieve itself. The Lord Chancellor adopted the bold, but the only consistent and useful course, of confirming that popular, though anomalous, doctrine, which the Master of the Rolls had reconstructed. This result should satisfy the profession; these eminent judges have restored this branch of Equity, so far as it had been impaired by recent decisions, but have wisely abstained from importing into our law, a principle, which, however convenient and reasonable (h), the greatest of their predecessors had rejected (i), as inconsistent with its genius and policy. If an attempt had been made to impeach the authority of Brandon v. Robinson, Barton v. Briscoe, Jones v. Salter, and Woodmeston v. Walker (k), and to establish the doctrine of the late Master of the Rolls, Sir John Leach, on the ruins of those cases, it might not only have miscarried, but have left Newton v. Reid, the second case of Brown v. Pocock, and, their natural fruit, Massey v. Parker, in full operation, or even, perhaps, have ended, yet more unsatisfactorily, in permitting the doctrine of the two former cases (Newton v. Reid, and the second case of Brown v. Pocock) to stand, uncorrected by the latter (Massey V. Parker)-uncorrected, because it is obvious that a married woman, who has life income settled to her separate use, without any restriction on alienation, is in a much worse position than if the income were not so settled, and were, therefore, (unless to arise from real estate (1)), not alienable beyond the period of the coverture (m), nor, indeed, for that period, as against her equity to have a provision (n). n. * (g) Ante, 537, (k) All the cases here cited are stated ante, 508, et seq. (m) See Stiffe v. Everett, ante, 530. Sumpson 33 d.). Ch. 641.1.C. Stridersley. 542 2 RULE IN SHELLEY'S CASE. arman xim 364. /.6.1.218 on RULE IN I. The general VI. Rule in Shelley's Case.—General and Particular Intention.— 1. Rule in Shelley's case stated and explained. THE rule in Shelley's case (a) says, in substance, that if an estate of freehold be limited to A., with remainder to his heirs, general or special, the remainder, although importing an independent gift to the heirs, as original takers, shall confer the inheritance on A., the ancestor. An attempt will now be made to develope the leading principles of this rule, than which, when divested of all extraneous matter, no rule of law is more simple or certain. I. If the rule in question had not been adopted, land might particular rule. have been limited for a particular estate of freehold, (as to one in tail, for life, pur auter vie, &c.), with remainder to the heirs of the body, or heirs general, of the freeholder, which remainder, since nemo est hæres viventis, must have been contingent during his life, but, if not defeated by the determination, in his lifetime, of his particular estate, would have vested, on his death, in the person or persons then answering the description of his heir or co-heirs special or general. Thus the law would have stood. If not, why was the rule instituted? II. Premises of II. The rule assumes and founds itself upon two pre-existing circumstances-a freehold in the ancestor, and a remainder to the heirs. The absence of either of these ingredients repels the application of the rule; their concurrence irresistibly invites it. When the rule supposes the second limitation to be a REMAINDER (6), it plainly excludes-1, the case of limitations differing in quality, the one being legal and the other equitable; 2, the case of limitations arising under distinct assurances; and, 3, the case of an executory limitation, by way of devise or use; and, consequently, upon principle, the case of a |