Honour therefore held that the defendants, the trustees, would be bound to account for the rents of the Ashchurch estate to any person who might become the purchaser thereof under a sale to be made by the plaintiffs. The legal estate was in the trustees, and although it was not their duty to convey the legal estate to a purchaser, it was their duty to give to the purchaser of such life estate of Mrs. Brotheridge exactly the same facilities for taking and receiving the rents of the Ashchurch property, as they would have given to her; the purchaser, in fact, would be exactly in her place, entitled to the same rights, and subject to the same liabilities. The next property assigned was the annuity of 107. per annum given during the joint lives of Mrs. Brotheridge and the survivor of the defendant George Packer and his wife. This annuity was not given to the separate use of Mrs. Brotheridge; the deed, therefore, did not bind her reversionary interest in the annuity in the event of her surviving her husband; and the trustees were bound to pay the annuity to a purchaser thereof under the deed of 1856, during the joint lives of Mr. and Mrs. Brotheridge only; liable, however, to its wholly ceasing on the death of the survivor of Mr. and Mrs. George Packer before that period. The third property assigned was the one-third of the testator's residuary real and personal estate, subject to a contingent accruer by the death, without issue, of either or both of the other residuary devisees before the decease of the survivor of Mr. and Mrs. George Packer. This was given to the separate use of Mrs. Brotheridge, and required to be considered, first, as regarded the real estate, and next, as regarded the personal estate. First, as regarded the real estate which was given to Mrs. Brotheridge in fee for her separate use. It did not appear that, for the present purpose, it was a matter of much, or indeed of any, moment, that the interest of Mrs. Brotheridge was reversionary. The question was, whether the words "separate use," as applied to a devise of freehold hereditaments to a married woman in fee simple, had such an effect as to give her a different quality of estate in the contemplation of Equity, as to the manner in which she might alienate the same, from what she would have taken in the same lands if the words "separate use had been omitted from the devise. His Honour was of opinion that, in such a devise, the words " separate use" had, as regarded the alienation of the inheritance of the property, no such practical effect; that, if a married woman had attempted before the statute to dispose of such lands, she must have levied a fine; and that, since the statute, an acknowledgment under the 77th section was equally necessary. He found difficulty in attaching a meaning to the words "separate use," as applicable to the fee simple estate of a married woman, if it were intended to go further than to bar the interest in the real estate of the wife, which, without such words, the husband would have taken. The words in other cases were meant to bar the interests of the husband. In the case of the fee simple estate of a married woman that interest of her husband consisted in the receipt by him of the rents of the property during their joint lives, and also during his widowerhood, if they had a child. It seemed to be decided by the case of Baggett v. Meux (1 Coll. 138; 1 Ph. 627), that the addition of the words, "without power of anticipation" (which, as applied to the life estate of a married woman in lands, were intelligible and pertinent), could be also applied to the absolute interest of a married woman in land, so as to prevent her from selling or mortgaging the property. If this were correct, then it was obvious that a grant of lands in fee simple to a married woman for her separate use, with a restraint against anticipation, was merely another way of giving her a life estate for her sepa rate use without power of anticipating the rents; for if she could not alienate, her interest would be confined to this-except that the words "separate use," according to Atchison v. Le Mann, left the wife at liberty to dispose of the land by will in any way she might think proper, without the concurrence of her husband. It was strange, however, if the power to devise was included, that the power to alienate by deed was not also included: nor was it easy to understand how the restraint upon anticipation could be properly applicable to such an estate, except that the whole doctrine of separate estate and its union with a restraint against anticipation was altogether anomalous. It was also laid down by the Lord Justice Turner, in Atchison v. Le Mann, that a married woman might dispose of lands given to her by will for her separate use during coverture, although the devise or grant to her contained no power for that purpose. This was, undoubtedly, an important deci sion, and if it were settled law-that where property was given absolutely to a married woman the mere addition of the words "for her separate use," would necessarily imply a power to dispose of it by will-it had a strong bearing upon, although by no means decisive of, the case before the Court. It was not, however, necessary to decide that point in Atchison v. Le Mann; but, assuming it to have been so decided, the contention here advanced went far beyond that; for the contention here was not only that she might dispose of the land by will, but that she might do so by sale or grant, not only with out the concurrence of her husband, but without the forms expressly imposed by the statute: in other words, the contention was, that the words "separate use," as regarded alienation inter vivos, had the following and no other meaning, viz., "I give my estate to A and her heirs for ever, for her separate use; that is, I do so in order to enable her to dispose of it without any acknowledgment under the statute." His Honour was of opinion that it was not in the power of any testator to avoid the statute by the introduction of such words, any more than he could have done if he had expressed his meaning distinctly thus :-"I leave White Acre to A and her heirs for ever; and I declare that my intention is that she may dispose of the same without acknowledgment under the statute of 3 & 4 Will. 4, c. 74." The Common Law, independently of Equity, treated the wife as the separate owner of the land, so far as the inheritance in it was concerned. That did not pass to her husband; and the Common Law provided a mode by which she might dispose of that which was her separate interest in her land in the lifetime of her husband, namely by fine or recovery, and not other wise. For this Common Law conveyance, the statute substituted a deed acknowledged before a constituted officer. How could a testator or grantor repeal this Act and also stay the operation of the Common Law by the introduction of the words "separate use ?" | The effect of those words was confined to this-they applied to, and barred the husband from receiving, what without such words he would have received, viz., the rents of the property during the life of the wife, and during his te nancy by courtesy in case he had a child; but how could the words "separate use" add anything to what was her own, separately and distinct from her husband? or how could they add anything in the way of enabling her to dispose of what was her separate property without such words-viz., the inheritance in the land-and to do this in a different way from what she could have done before? In other words, his Honour could not understand how those words could have the magical effect of repealing the express words in the clause of the statute. took an estate in fee-simple; the Vice-Chancellor Wood and the Court of Appeal both held that she took an estate for life with a testamentary power, and that she had exercised that power in favour of her son through whom the defendant claimed. The question at present before the Court did not, and could not arise in Atchison v. Le Mann, which was in fact principally cited for the dictum of the Lord Justice Turner, to which reference had already been made, but respecting which, as the point did not arise in and could not influence the decision of the present case, his Honour would abstain from expressing any further opinion. In Adams v. Gamble, it was held that a married woman could dispose of freeholds settled to her separate use as if she were a feme sole, without an acknowledgment under the statute. His Honour had carefully read and considered that case, but was unable to concur with the two learned Judges who dissented from and overruled the decision of the Lord Chancellor of Ireland. If the decision had been unanimous, his Honour would not have ventured to differ from it, but as the Lord Chancellor on reflection adhered to his previous opinion, the case had not that weight which it otherwise would have possessed. The distinction that the words "separate use" applied only to what the husband would have taken if those words had not been used, did not appear to have been sufficiently present to the minds of the learned Judges who dissented from the Lord Chancellor. The case of Baggett v. Meux was there relied upon; but, as had been already stated, that case seemed merely to decide, that the restraint against anticipation, or rather a proTo state it again in a different way.-A devise of hibition against parting with or disposing of her lands to a married woman in fee without any additional estate, might be applied to the fee-simple estate words gave a portion of the usufruct of that land to of the married woman given to her for her sepaher husband, and left the rest in her. What was the rate use. The other case relied upon was an inhusband's, he could dispose of without her consent-stance of the alienation of the life estate of a married he could sell the rents during the joint lives of both, and also during his own estate by courtesy. But to touch anything beyond that, a conveyance from the wife always had been and still was necessary-it was her separate property by Common Law, and the mode by which she conveyed it was by fine or recovery before the Act, and since the Act by deed acknowledged. Then take the next step, and suppose a devise of the same lands made to the married woman in fee, with the words "for her separate use" superadded. Those words were confined to barring the husband's interest in the lands, and giving that interest to the wife; but how could those words alter the estate of the wife in that portion of the property which never went to the husband at any time, and over which he could never have had any control? The case of Atchison v. Le Mann did not govern this question-the only question in that case was whether the wife had an estate for life with a power of isposing of the inheritance by will, or whether she woman. The question was certainly one of considerable difficulty; but looking to the authorities which treated of this matter, beginning with Peacock v. Monk (although not bearing upon the exact point before the Court), his Honour was compelled to choose between conflicting decisions, and he was of opinion that, on principle and by the preponderance of authority, it was established that before the 3 & 4 Will. 4, c. 74, a fine was necessary to pass the interest of a married woman in that part of her fee-simple estate which did not belong to her husband; and that since that statute an acknowledgment under the 77th sect. was necessary for that purpose, notwithstanding that the estate of the wife was given for her separate use. If the fact that the property was reversionary had any effect upon the case, it only increased the difficulty of giving to the words "separate use "the effect contended for by the plaintiffs. Except for the words "separate use " in the testator's will, the deed of 1856 would merely amount to a covenant by the husban His Honour was of opinion that the words of the 77th clause were applicable to an estate in fee simple of a married woman, though given for her separate use; and he, therefore, held that the deed of the 17th December, 1856, did not affect the reversionary fee simple of Mrs. Brotheridge. As to that portion of the residue given to Mrs. Brotheridge which consisted of personalty, the statute had no application; and it had been repeatedly held by the Court of Chancery, and was the constant practice, to allow a married woman to deal with a money legacy given to her absolutely for her separate use, as her own; her receipt alone was all that was necessary for the protection of the executors; and her application to the Court to have the money paid to her, or to any one she might direct, was always complied with, without any examination or ascertainment of her unbiassed wish. In respect of personal property, no distinction could be made between that which was immediately receivable and that which was reversionary; if the property were hers as a feme sole, she might deal with it as a feme sole, and sell or incumber it as she pleased. The words "separate use" in this case excluded the husband from any portion of the property whether he survived his wife or not; and, accordingly, as to all the residuary personalty coming to Mrs. Brotheridge, whether vested or contingent, his Honour held that it was bound by the deed, and would pass to any one who might buy it from the plaintiffs; and that the defendants, the trustees, would be trustees of that third for the benefit of such purchaser and his assigns when the same might fall in. Minute. Declare that under the indenture of the 17th of December, 1856, the plaintiffs are entitled to sell the life interest of the defendant Ann Brotheridge in the Ashchurch estate, and also her reversionary interest in the residuary personal estate of the testator, and also the annuity of 107. per annum given by the will of the testator to the defendant Ann Brotheridge during the joint lives of the defendants Ambrose and Ann Brotheridge and the survivor of the defendant George Packer and his wife. Declare that the deed of the 17th of December, 1856, does not affect or convey the interest of the defendant Ann Brotheridge in the residuary estate of the said testator, so far as the same consists of real estate. Election-Statute of Frauds-Demurrer. A certain estate was devised by will to one for life, remainder in tail male. By an unattested codicil, some annuities were directed to be paid by whoever inherited such estate. A general demurrer to a bill, which prayed payment of an annuity and arrears, was allowed, Mrs. Price by her will, dated July 26th, 1817, devised her Paginton estate to Walter Davenport, for life, remainder to his first and other sons in tail male. By a codicil, dated 11th August, 1821, she directed "That all her poor pensioners, not specified by codicil, should receive the same payments during their lives, from whoever inherited the Paginton estate after her decease." This codicil was unattested. Prior to 1816, the plaintiff had lived with the testatrix as companion. At that date she married, and the testatrix allowed her a pension of 10s. a week; and shortly before her death, told her she had well provided for her. On the testatrix's death, the pension was discontinued by the tenant for life, on the ground that the codicil only related to persons living on the Paginton estate. A reduced pension of 15l. per annum but then again discontinued. In 1862 the defendant, was, however, paid to the plaintiff from 1851 to 1862, the tenant in tail of the Paginton estate, offered to renew the 157. per annum, on condition that the plaintiff would sign a paper giving up all claim to a pension as a right. This she would not do, but filed a bill, praying that the defendant might be decreed to pay the pension and arrears accrued due, since the death of the tenant for life. And that the estate of the tenant for life might be declared liable to the arrears accrued due during his life. To this bill a general demurrer was put in. Glasse, Q.C., and F. O. Haynes, in support of the demurrer. It is not necessary to state the Statute of Frauds as a ground for demurrer; but a general demurrer is good, Wood v. Midgeley, 5 De G. M. & G. 41 ; Bailey, Q.C., and Swinborne, for the plaintiff. And the defendant must give effect to the codicil as creating not a charge upon the estate, but a personal obligation, Wilson v. Wilson, 1 De G. & Sm. 152. KINDERSLEY, V.-C., said, that the question was not raised, whether there was sufficient precision in the codicil to enable the plaintiff to claim; but whether the codicil, being unattested, imposed such a personal obligation on the defendant, as to put him to his election. Under the old law, which governed this case, the clear rule was, that an unattested codicil could not effect a devise in an attested will, so far as related to real estate. He was of opinion, therefore, that the defendant was not put to his election. As to the case of Wilson v. Wilson which was quoted in argument, he did not consider for a moment that in that case the Vice-Chancellor could have meant to decide that an unattested will would put an heir-atlaw to his election. As to the demurrer being general, he considered it settled by the cases that such a demurrer was right. The demurrer therefore must be allowed. Kindersley, V.-C. 26 MAY, 1863. The Earl of SHREWSBURY Practice Demurrer-Supplemental Bill. A demurrer will not lie merely to so much of a bill as seeks to have the suit taken as supplemental to a prior suit. This was a suit to compel the North Staffordshire Railway Company to pay to the plaintiff the sum of 20,000l. agreed to be paid by them to Earl John, on the occasion of the purchase of some of the settled estates of the earldom. Earl Bertram Arthur succeeded Earl John, and instituted a suit against the company for the same purpose as the present suit, but died before decree. The plaintiff succeeded Earl Bertram Arthur and instituted this suit. The defendants pleaded the Statute of Limitations. And the plaintiff thereupon amended his bill, introducing into the prayer the following clause : "That if necessary and proper, this suit may be taken as supplemental to, or in the nature of a suit supplemental to, the said suit of the said Bertram Arthur, Earl of Shrewsbury." The defendants then demurred to so much of such amended bill as sought to have this suit taken as supplemental, or as in the nature of a suit supplemental to the said suit of the said Earl Bertram Arthur. The Solicitor-General, Glasse, Q. C., and Bovill, for the demurrer, Lloyd v. Johncs, 9 Ves. 37; Baily, Q.C., and Wickens, for the bill were not called on. KINDERSLEY, V.-C., said, that this was a most inconvenient mode of raising the question. There was no contention that the plaintiff might not institute an original suit, and it would be impossible to decide how far this suit could be taken as supplemental to the former suit, without going into a great portion of the case, of which part was not covered by the demurrer. And, moreover, every advantage which the defendants might obtain by demurrer, could be obtained equally well at the hearing. The demurrer must be overruled without prejudice to any question at the hearing. Kindersley, V.-C. 20, 21 FEB. 26 MAY, 1863. Re THE BRITISH PROVIDENT Company-Transfer of Shares-Contributory— A transfer of shares in a company between the making of a call and the time when it becomes payable, is not invalid under the 7 & 8 Vict. c. 110, s. 54. A shareholder in a company who transfers his shares, but whose transfer is not returned to the Registrar of Joint Stock Companies in pursuance of the above Act, is not, under sect. 13, liable as a contributory upon the winding-up of the company. This was an adjourned summons from Chambers in the winding-up of the above-named company. The question was, whether the name of Daniel Orpen should be retained on the list of contributories in respect of 200 shares transferred by him to John Sheridan on the 30th May, 1857. Before the transfer-viz., on the 21st May, 1857-a call had been made upon the shares of 17, per share, payable on the 30th June following. The transfer was not returned to the Registrar of Joint-Stock Companies in pursuance of sects. 11 & 12 of the 7 & 8 Vict. c. 110, and the name of Orpen remained on the register in 1861, when the order was made for the winding-up of the company. The official manager sought to have Orpen's name placed upon the list of contributories on the following grounds, viz. : 1st. That the transfer was invalid under sect. 54 of the 7 & 8 Vict. c. 110, which provides, "that if at the time of such transfer the shareholder shall not have paid the full amount due and payable to the company on every share held by him, then he shall not be entitled to transfer any share, unless there be a provision to the contrary in the deed of settlement." 2nd. That Orpen remained liable as a shareholder under sect. 13 of the same Act, which provides that "until the return of the transfer of any share shall have been made pursuant to the provisions contained in the Act, the person whose share shall have been thereby transferred shall, so far as respects his liability to the debts and engagements of the company, and also as respects the reimbursement of any loss, damages, costs, or charges he may incur thereby, be deemed to continue a shareholder of such company." E. Karslake, for the official manager, cited on the first point, The North American Colonial Association of Ireland v. Bentley, 15 Jur. 187; Re Phoenix Life Assurance Company, Hatton's Case, 10 W. R. 313. Shebbeare, for the creditors' representative. Day and Phear, for Orpen. transfer. The facts of the case were shortly these :-The three sons of the original testator, John, Charles, and George Foster, became entitled under his will, in 1st. The call was not payable at the date of the equal shares, to certain property. Shortly after the testator's death, a bill was filed by the next friend of 2nd. The 13th sect. does not affect the liabilities of the three sons, for administration, and that suit has been shareholders inter se. Karslake, in reply. KINDERSLEY, V.-C., said, that the first question turned upon the meaning of the words due and payable, in sect. 54 of the 7 & 8 Vict. c. 110. These words clearly had reference to the time of the transfer being made, -otherwise there could never be a transfer of shares not fully paid up,-and in their primary sense would not apply to the case of a call already made, but not yet payable; nor was any other meaning required by the context, which spoke of the shareholder not having paid, evidently referring to something which at the time of the transfer ought to have been already paid. This construction was supported by the contrast between the section in question and the 16th section of the Companies' Clauses Act, 8 Vict. c. 16, which expressly precluded shareholders from transferring after a call had been made. The only cases bearing upon the question, viz., The Aylesbury Railway Company v. Mount (4 M. & G. 651), and The North American Colonial Association of Ireland v. Bentley (15 Jur. 187), arose upon clauses in local and personal Acts similar to, but not identical with, this section. In Hatton's Case the point was not decided. In the absence, therefore, of authority, he must hold upon the construction of the Act, that the transfer by Orpen was not void by reason of the call previously made but payable subsequently. As to the second question, the 13th sect. imposed upon a transferor of shares, whose transfer was not returned to the registrar, a continuing liability to the creditors of the company, but not as between himself and the shareholders so as to make him a contributory. For these reasons the name of Orpen must be removed from the list of contributories; the costs of all parties, including the creditors' representative, to come out of the estate. going on ever since. Certain sums, as the ascertained shares of the three sons had been paid into Court, viz., 6937. 16s. 6., to the account of John and his incumbrancers, and two like sums to the account of Charles, and George, and their incumbrancers respectively. By an indenture dated the 27th of February, 1837, John, in consideration of 2000l., granted to the petitioner Ford, an annuity of 2707., assigning his share, under the testator's will, to a trustee for Ford, to secure the payment thereof. Charles and George also assigned their shares as a further security, and became sureties for John. On the 9th of May, 1837, John was declared a bankrupt. The petition was for the payment to Ford of the three sums, in Court, in liquidation of the arrears of the annuity, granted by the deed of the 27th of February, 1837. Two points were taken in opposition to the petition:-(1st.) That the annuity was void, on the ground that 2007., part of the consideration money, had been returned, for costs of preparing the deed, which brought the transaction within the meaning of the Annuity Act, 53 Geo. 3, c. 14, s. 6. (2nd.) That no notice of the assignment had been given to the executors and trustees of the testator, and that, therefore, the share of John remained in his order and disposition, and the assignees were entitled to be free from Ford's claim. As to the facts on both points, there was a conflict of evidence. Southgate, Q.C., and C. Hall, for the petitioners, cited, Smith v. Smith, 2 Cr. & Mecs. 231; 1 Bythewood's Conveyancing, 335 l (2nd ed.); Pennell v. Smith, 5 De G. M. & G. 167. Baily, Q.C., and Jolliffe, for the assignees of John Foster, cited, 1 Bythewood's Conveyancing, loc. cit. Glasse, Q.C., and Rendall, for a mortgagee of the shares of Charles and George Foster, cited, Williamson v. Goold, 1 Bing. 235; F. O. Haynes, and G. Hastings, for other parties interested. |