Frechold estates were conveyed to such uses as H B and W B should jointly appoint, and in default to the use of H B for life, remainder to W B for life, remainder to his first and other sons successively in tail crcumstances under which he should not consider trustees to have committed a breach of trust in appointing as schoolmaster a person not a member of the Church of England. As regarded the qualifications of the trustees, The Attorney-General v. The Earl of | male, remainder to G B for life, remainder to his first Stamford had established a difference between appointing trustees in the first instance and removing trustees who had been previously appointed. In the present case one of the trustees was a dissenter, another had never resided in the parish; he thought that these ought not to have been appointed. If any of the others had removed to such a distance as to be unable to attend the meetings of the trustees, he should have considered that they had thereby brought themselves within the provision for filling up vacancies "if the trustees should grow old or few in number," but this not being the case, the two he had mentioned were the only ones as to whom the question of removal arose. The trustees had been charged with neglecting their duties, but he found from their minute-book that there had never been less than three trustees in attendance at any meeting, sometimes four, and occasionally five; and, altogether, they seem to have done their duty as and other sons successively in tail male, with remainders over. In consideration of marriage between G B and G N, the estates were by H B and W B appointed to the use that G N should, in case she should survive G B, receive a yearly rent-charge during her life for her jointure, and in lieu of dower, thirds, and freebench; powers of entry and distress were given, and a term of years was vested in trustees for securing payment of the rent-charge; and subject thereto the estates were ap pointed to the above-mentioned uses :— trustees, except with regard to the late schoolmaster. Master of the Rolls. FLOYER v. BANKES (2). Held, that this was a "contract made by a person for valuable consideration in money or money's worth for the payment of money or money's worth after the death of another person" within the meaning of the 17th sect. of the Succession Duty Act (16 & 17 Vict. c. 51); and, consequently, that succession duty was not payable in respect of the jointure. The petition now came on for argument of the question as to the liability to succession-duty in respect of the jointure rent-charges created by the indenture of the 7th June, 1822, in favour of Georgina Bankes. The facts of this case are stated ante, 2 N. R. 7. The Solicitor-General, and Hanson, for the Crown. Attorney-General v. Floyer, 9 H. of L. Ca. 477; 10 was that, for the purpose of succession duty, George 2nd. At any rate, the decision of the House of Lords was conclusive as to the 7007. rent-charge, which could not take effect unless and until George Bankes' life estate had fallen into possession; but as to the 8007. rent-charge, which might have (but in the event had not) taken effect in derogation of the estates of both Henry Bankes and William Bankes, it might be that there was a divided succession, and that the duty would be payable on one moiety as derived from Henry, and on the other moiety as from William. 3rd. It would be argued that no duty at all was payable, as this was a purchase for valuable consideration; the Act made no distinction between settlements for valuable consideration and settlements without such consideration. The 2nd and the 10th were the principal sections of the Act; the 2nd defining what shall confer a succession," and the 10th fixing the rate of 66 duty payable; the remaining sections were merely regulative. The appointment of the 7th of June, 1822, was a disposition creating a succession within sect. 2: it was not "a bond or contract for valuable consideration in money, or money's worth, for the payment of money or money's worth," within sect. 17. The 17th was the only section of this Act which created any exemption on the ground of valuable consideration; such exemption, being expressly made in certain cases, could not be implied in others. The jointure rentcharge was a hereditament, an estate in land, and when the charge became payable the matter no longer remained in contract. A distinction must be made between money which was, and real estate which was not, the subject of payment; a settlement of real estate was not within sect. 17, there being no money to pay, but a mere succession of estates. To come within sect. 17 the case must be one in which the relation of debtor and creditor existed; the question was not, whether there was valuable consideration, but whether there was any contract for the payment of money or money's worth; the governing words of the section were "bond or contract;" here there was no such thing, but merely a series of uses, one of which was that Georgina Bankes should receive a jointure rentcharge of so much per annum ; a marriage settlement of real estate executed was not within the words of the section, for there was nothing resting in contract, and the words "contract for payment of money" could not by any latitude of construction be held to include an executed estate in land. They referred to the following cases;-on the Succession Duty Act, Lord Braybrooke v. Attorney-General, 9 H. L. C. 150; Attorney-General v. Yelverton, 7 H. & N. 306; Re Ramsay's Settlement, 30 Beav. 75; and, on the Legacy Duty Acts, Pickard v. Attorney-General, 6 M. & W. 348; Hobhouse, Q.C., and Freeling, for the jointress. The intention of the Legislature was to impose a tax in all cases where one person, by mere bounty, or by devolution of law, takes a benefit on the death of another person; but purchasers for value were not within the purview of the Act. This was illustrated, not only by the 17th sect., and by the exception in the 7th sect. of " a bona fide sale," but also by the principle upon which the rate of duty leviable was fixed; the nearer the relationship, the lower was the rate of duty; in other words, the greater the windfall, the higher the tax-a principle which was not applicable to the case of contracts for value. The element of bounty was necessary to attract the operation of the Act. In the case of a contract for value, there was no "predecessor" within the meaning of the Act; or if there were, the purchaser was the predecessor; in either event, no duty was payable. The present was clearly a contract for value, for not only was there the consideration of marriage, but the rent-charges were in lieu of dower, freebench, and thirds. They admitted that for the purpose of determining the rate of duty, the Court would consider, not in whom the estate was vested, but from whom the bounty pro ceeded, or the interest was derived; and thus it was that, in The Attorney-General v. Floyer, William Bankes was held to be the sole predecessor; lut in that case, there was clearly a succession, and clearly a person taxable, and the only question was as to the rate of duty; whilst here, the objection was, that there was no succession, and no person taxable at all. They referred to, Re Jenkinson, ubi suprà; Attorney-General v. Yelverton, ubi suprà; In order to tax the subject, the Legislature must speak clearly; the statute must be read strictly against the Crown, and the subject was entitled to the benefit of any ambiguity. Selwyn, Q. C., and Lovell, for the tenant for life of the charged estates, supported the same view, and argued, that this was a contract for value for the pay ment of money or money's worth. The thing purchased was an annuity for life; it was true it was charged on the real estate, and was secured by a term of years, and by powers of entry and distress, but it was none the less money to be paid, within the meaning of the 17th sect. The cases cited on the Legacy Duty Acts were inapplicable; for, though there were conditions attached to the legacies, the gifts were nevertheless voluntary, and to be treated as bounty. Baggallay, Q.C., and C. Hall, for the trustees, took no part in the argument. The Solicitor-General, in reply. HIS HONOUR reserved judgment. 23 MAY, 1863. THE MASTER OF THE ROLLS, after stating the facts, and referring to the 2nd and 12th sects. of the Succession Duty Act, said that the question was, whether duty was payable in respect of the jointure rent-charges, or whether the 17th sect. was applicable to the case. The general effect of that section was, to provide that a contract made by any person bond fide for valuable consideration, for the payment of money or money's worth after the death of another person, should not create a liability to the duty. The present was a case of contract for value, and prima facie was not liable to the duty; it was a purchase of an annuity which became payable for the first time on the death of the husband of the annuitant, and came strictly within the the defendants George Packer, Weaver, and Watson, words of the 17th sect. l was a general rule that where the public was to be charged with a burden, the intention of the Legislature to impose that burden must be explicitly and distinctly shown; and if there were any ambiguity in the language employed in a statute which imposed a tax upon the subject, the Act must be read strictly against the Crown. If there had been no marriage, but a sum of 10,000. had been paid by the lady as the purchase money of a rent-charge, to be paid to her during her life from and after the death of another person, the case would clearly have been within the 17th sect. If the consideration of marriage were superadded, of course the section would still be applicable. And if sum of money were paid, but the consideration were that of marriage alone, the result would not be different; marriage was of itself a most valuable consideration, and the words "money or money's worth" included the consideration of marriage. In aldition to which, the statute was to be construed liberally for the subject; and the consideration in the present case was not that of marriage alone, for the lady had released her right to dower, freebench, and thirds. The authorities which had been cited on the construction of the Act did not throw much light on the question before the Court; the case appeared to be untouched by decision. His Honour would decide the question solely on the construction of the 17th sect., confirmed by the general scope of the Act, but without expressing any opinion on other sections. His unqualified opinion was, that the words of the 17th sect. exactly covered this case, and he accordingly held that succession duty was not payable in respect of the jointure rent-charges. RIDGE. Master of the Rolls. LECHMERE . BROTHE- A married woman can, by deed unacknowledged, dispose of personalty bequeathed to her separate use, and of her life estate in realty devised in trust for her separate use for life; but she cannot, without a deed acknowledged under 3 & 4 Will. 4, c. 74, s. 77, dispose of the fee-simple of freeholds devised in trust for her separate use. Adams v. Gamble (12 Ir. Ch. Rep. 102), not followed. The plaintiffs were bankers at Tewkesbury, and instituted this suit to enforce a security for the balance of the banking account of the defendant Ambrose Brotheridge, which had been given to them by Ambrose Brotheridge and his wife. John Packer, by his will dated the 30th September, 1854, devised a certain freehold estate at Ashchurch to their heirs and assigns, in trust to permit and suffer the defendant Ann Brotheridge to occupy and enjoy the same, or receive the rents and profits thereof, during her life, for her sole and separate use and benefit, free from and independent of the debts, control, and engagements of her husband; and after her decease upon trust to permit and suffer the defendant Ambrose Brotheridge to receive the rents and profits thereof during his life; and after the decease of the survivor, to stand seised and possessed of the said hereditaments upon trust for the children of the said defendants who should be living at the decease of such survivor, and the issue of any of them who should be then dead leaving issue, as tenants in common in fee per stirpes. The testator also devised and bequeathed the residue of his real and personal estate unto and to the use of the defendants George Packer, Weaver, and Watson, their heirs, executors, administrators, and assigns, upon trust to pay certain annuities (one of which was of 107. per annum to the defendant Ann Brotheridge) during the lives of the defendant George Packer and his wife, and the life of the survivor; and after the decease of such survivor, upon trust for Thomas Packer, Charles Packer, and the defendant Ann Brotheridge, their heirs, executors, administrators, and assigns, absolutely in equal shares: if any one of the said three persons should die without issue before the period of division, his or her share was to go to the survivors or survivor, but if the one who died left issue, then the issue were to take their parent's share. And the testator directed that the share of the defendant Ann Brotheridge should be for her sole and separate use. The will did not contain any clause in restraint of anticipation. testator died shortly after the date of his will. The By an indenture, dated the 17th of December, 1856, and made between the defendants Ambrose Brotheridge and Ann his wife of the one part, and the plaintiffs of the other part, Brotheridge and his wife granted and assigned to the plaintiffs, their heirs, executors, administrators, and assigns :— 1st. All those the hereditaments in the parish of Ashchurch, devised by the will of John Packer for the benefit of Ann and Ambrose Brotheridge successively for life; 2ndly, All that annuity of 107. to which Ann Brotheridge was entitled under the said will; and 3rdly, All the undivided third part, and all other the share, whether vested or contingent, of Ann Brotheridge, or of Ambrose Brotheridge in her right, in the residuary real and personal estate of the said testator-in trust to sell, and out of the proceeds to pay the debt due to the plaintiffs on the balance of Ambrose Brotheridge's account, with a proviso that the principal sum to be recoverable on that security should not exceed 1000Z. This deed was not acknowledged by the defendant Ann Brotheridge. The plaintiffs were desirous of realising their security; but the trustees of John Packer's will, in whom the legal estate was vested, declined to take any step in the matter, except under the direction of the Court. Selwyn, Q.C., and Wickens, for the plaintiffs. The principal defence would be, that real estate settled to the separate use of a married woman, could only be charged or effectually dealt with by her, by means of a deed acknowledged. But whatever may have been the former state of the law, it is now clear that a married woman having separate property is to be treated as a feme sole with respect to it, if she be not restrained from anticipation by the instrument which creates her separate estate. The 77th sect. of the Fines and Recoveries Abolition Act (3 & 4 Will. 4, c. 74) was not applicable to property settled to the separate use of a married woman; the object of the acknowledgment was to protect the wife against her husband; but separate estate is the creature of the Court, and of itself protects against the husband: moreover, if an acknowledgment were necessary, the concurrence of the husband would be necessary; and thus effect would be given to that very marital influence which it was the sole object of the doctrine of separate use to exclude. It would be admitted that the indenture of 1856 had effectually charged the personalty, and also the life estate of the defendant Ann Brotheridge, which were settled to her separate use. There was no reason why that which confessedly held good as to the life estate, should not equally hold good as to the estate in fee simple, which was equally settled to her separate use. It being settled that an estate in fee may be limited to the separate use of a married woman, thus giving her an absolute ownership, she must have all the rights which are incident to such ownership, including the power of disposition by will or deed, in the same way as a feme sole could dispose of the same estate. To that effect was the clear dictum of the Lord Justice Turner, in Atchison v. Le Mann, 23 L. T. 302; whilst the decision of Sir John Leach in Minot v. Eaton, 4 L. J. (o. s.) 134, was that a married woman could, before the Fines and Recoveries Act, well dispose of her equitable estate in fee without a fine; and the recent decision of the Court of Appeal in Ireland, Adams v. Gamble, 12 Ir. Ch. Rep. 102, to real estate, but the doctrine has never yet bea carried to such an extent as to make the feme coverte, as to her separate real estate, a feme sole in all respets. The object of the doctrine of separate estate was to protect the married woman from marital influence and control; but if she could dispose of her separate property without an acknowledged deed, she was, in fact, at the mercy of her husband, and was in aworse position than a married woman whose real estae was not settled to her separate use, since she was deprived of even that slight protection against marital prissure which was afforded by examination and acknowledg ment apart from her husband. If the law is to entirely defeat the object for which the separate us: separate use were as the plaintiffs contended, it would doctrine was created. To charge the fee simple separate estate of the wife a fine would, before the Fines and Recoveries Abolition Act, have been necessary: the Act merely substitutel the deed acknowledged for the fine. The 77th sect married woman; the words "any estate which she of the Act was applicable to the separate estate of alone, or she and her husband in her right, may have cially to separate estate; it was true that this conin any lands of any tenure," seemed to point espe struction so far interfered with the notion of separate estate that it gave the husband a veto on the wife's power of disposal, but this was not properly an interference with her separate estate; the Act empowered her, by deed acknowledged, to deal with the property as a feme sole, and as such she did deal with it, but the Act at the same time rendered the concurrence of her husband necessary. The word "estate "in the Act included an equitable estate; and as equity followed the law, and held fires and recoveries of equitable estates to be necessary as well as of legal estates, so an acknowledged deed was now requisite to effectually convey or charge an equit. able fee settled to the separate use of a married woman. The Court had no power to bind the real estate of a married woman, except by those formalities which were required by law. without acknowledgment convey or charge her life estate He admitted that a married woman could by deed in realty settled to her separate use; but contended that, the object of the separate use being merely to exclude the husband, the deed must be acknowledged on the precise point now before the Court, was in when the interests of other parties were interfered favour of the contention of the plaintiffs. with; and the principle of the distinction between the married woman's power of disposition over her separate life estate and her separate estate in fee was, that in the latter case the heir would be affected. By means of a power, the married woman could dis pose of her separate fee simple estate by deed without acknowledgment, since the 78th sect. of the Fines and Recoveries Act enacted, that the powers of dispo sition by that Act given should not interfere with any power which, independently of the Act, might be vested in or reserved to her. The Act distinguished between estates and powers; and in the case of estates, including equitable estates, the words of the statute were clear, and required that a disposition by the married woman, inter vivos, to be effectual, should be by deed acknowledged. The decision in Adams v. Gamble was not binding in this Court; and, moreover, the Lord Chancellor of Ireland in that case dissented from the rest of the Court. He referred to Peacock v. Monk, 2 Ves. sen. 190; Anonymous Case, cited 2 Ves. sen. 192; Churchill v. Dibben, 9 Sim. 447, n. ; Harris v. Mott, 14 Beav. 169; dent of such an estate that she should possess the capacity of dealing therewith in the same manner in every respect as a feme sole could deal with an estate of which she was seised in fee. The Master of the Rolls reserved judgment. 27 MAY, 1863. THE MASTER OF THE ROLLS said that, as to the defence that the deed was executed by Mrs. Brotheridge under compulsion or pressure, and without proper explanation of its contents and effect, the evidence showed that proper explanation had been given to her; and although she stated that the deed was executed under pressure put upon her by her husband, yet, as no part Field v. Moore, 19 Beav. 176; 7 D. M. & G. 691; of that pressure proceeded from the plaintiffs, and as 1 Sand. Uses, 380-384 (5th ed.); 2 Roper, Husb. and Wife, 182 (2nd ed.). [The Master of the Rolls referred to Wright v. Cadogan, 1 Br. P. C. 486.] It had been admitted in argument, and it was so stated by te xt-writers, that the separate life estate of the married woman could be disposed of by deed without acknowledgment; but if so, it was only because the Fines and Recoveries Act did not apply to separate property at all. If the Act applied to such property at all, its terms were express (sect. 79) that every deed e xecuted by a married woman for any of the purposes of the Act, except as protector, should be acknowledged; in fact the contention of the other side, if allowed to prevail, would entirely abolish the doctrine of separate estate as applied to realty, for the married woman would be unable to dispose of any real estate settled to her separate use without the concurrence of her husband. The Fines and Recoveries Act was an enabling and facilitating statute; and the 78th section preserved all the powers of disposition which married women previously possessed; the word "power" in that section was employed, not in a legal sense in contradistinction to estate, but in the popular sense of a capability of disposing. It might be true that the doctrine of separate use (unless a restraint on anticipation were superadded) had removed from a married woman that protection which she would otherwise have had thrown around her, and left her more liable to the pressure and control of her husband than before; but no argument could be drawn from the effect of the rule, if that rule were shown clearly to exist; and he submitted that at the present day it was established law that a married woman, as to real as well as personal estate settled to her separate use without any restraint on anticipation, was to be considered as a feme sole for all purposes; that an estate in fee simple could be settled to the separate use of a married woman, and when that was done, it was an inseparable inci no suit was instituted to cancel or correct the deed, it was impossible that that defence could be sustained in this suit as against the plaintiffs. As to the other defence, that the deed was not acknowledged by the wife, his Honour, after reading the 77th sect. of the Fines and Recoveries Act, said it was argued, on the one side, that the words of the section must extend to all the property of the wife, including her separate estate; that this section was intended merely to substitute the acknowledgment of a married woman for a fine; and that before the Act a fine would have been necessary : and on the other side, that this estate for the separate use of a married woman, which, though a mere creation of equity, was a recognised and admitted estate, constituted the woman a feme sole as regarded that property to all intents and purposes, and that the right of alienation was necessarily incidental to that estate. The cases of Adams v. Gamble and Atchison v. Le Mann were cited for the purpose of establishing that the statute did not relate or apply to the separate property of the wife. And it was undoubtedly true that Courts of Equity, which required the consent of a married woman, in order to enable a sum of money belonging to her, to be paid out of Court to her husband, did not require her consent to be given when the money was settled to her separate use, although it was obvious that, morally speaking, the consent was, in fact, as necessary in one case as in the other. Some obscurity was produced by assuming, that if the principle applied to one species of property of the wife, it applied to all. It was necessary to distinguish between the different species of property, and to consider how the principles to be gathered from the reported decisions affected each of them. His Honour was of opinion, on all the authorities, and upon the principle on which the estate for the separate use of the wife rested, that, where the wife has an estate for life for her separate use in freehold hereditaments, she could alienate that life estate with. out any acknowledgment under the statute, and no fine was necessary for that purpose previously to the passing of that Act. Both the decided cases, and the opinions of text-writers, concurred in this, and his |