MARRIED WOMEN'S PROPERTY. PAGE I. THE FINES AND RECOVERIES ACT, 1833, ss. 77-84, 90, 91 ... 313 329 ... III. THE MARRIED WOMEN'S REVERSIONARY INTERESTS ACT, 1857 333 IV. THE MARRIED WOMEN'S PROPERTY ACT, 1870, ss. 1, 7—10, 12, 15-17 336 V. THE MARRIED WOMEN'S PROPERTY ACT, 1870, AMENDMENT 340 VI. THE MARRIED WOMEN'S PROPERTY ACT, 1882 VII. THE MARRIED WOMEN'S PROPERTY ACT, 1884 342 360 VIII. THE MARRIED WOMEN'S PROPERTY ACT, 1893 360 IX. THE DOWER ACT, 1833, AND TENANT BY THE CURTESY 362 313 I. THE FINES AND RECOVERIES ACT, 1833, § 77. Married women enabled to dispose by acknowledged deed of § 78. Saving of other powers...317. Note on powers, separate use, and restraint on anticipation.....318. §§ 79–84. Provisions as to acknowledgment...322. § 90. Equitable interests in copyholds...325. $91. Dispensation with husband's concurrence...326. woman, with and of any 77. After the thirty-first day of December, one thousand A married eight hundred and thirty-three, it shall be lawful for every her husband's married woman, in every case except that of being tenant in concurrence, tail, for which provision is already made by this act (a), by deed to dispose of to dispose of lands of any tenure, and money subject to be lands and invested in the purchase of lands, and also to dispose of, to be invested money subject release (b), surrender or extinguish any estate which she alone, in the puror she and her husband in her right, may have in any lands of chase of lands any tenure, or in any such money as aforesaid, and also to estate therein; release or extinguish any power which may be vested in or and to release limited or reserved to her in regard to any lands of any tenure, guish powers such money as aforesaid, or in regard to any estate in any as a feme sole. lands of any tenure, or in any such money as aforesaid, as fully and effectually as she could do if she were a feme sole, save and except that no such disposition, release, surrender, or extinguishment shall be valid and effectual unless the husband concur in the deed by which the same shall be effected, nor unless the deed be acknowledged by her as hereinafter directed: provided Not to extend always, that this act shall not extend to lands held by a copy of to copyholds court roll of or to which a married woman, or she and her or any and extin in certain cases. 3 & 4 Will. 4, c. 74, s. 77. (1) Cases when acknowledg ment necessary. (2) Cases when acknowledg ment unnecessary. husband in her right, may be seised and entitled for an estate at law, in any case in which any of the objects to be effected by this clause could before the passing of this act have been effected by her, in concurrence with her husband, by surrender into the hands of the lord of the manor of which the lands may be parcel. (a) See sections 15 and 40, ante, pp. 274, 294. (b) The Irish stat. 4 & 5 Will. 4, c. 92, s. 68, contains the word "disclaim." (1) Cases when Acknowledgment necessary...314. (4) Confirmation of Voidable Settlements...315. (5) Disclaimer by Married Women, and generally...316. By Real Prop. Act, 1845, s. 6 (post, p. 519), contingent and other like interests, and also rights of entry, may be disposed of by a married woman conformably to the provisions of this act (see Crofts v. Middleton, 8 D. M. & G. 192). Under the present section, read in connection with the interpretation clause, a married woman may by deed acknowledged dispose of any interest in land either at law or in equity, or any charge, lien or incumbrance in or upon or affecting land either at law or in equity (Briggs v. Chamberlain, 11 Hare, 74); including a right to dower (Dent v. Clayton, 12 W. R. 903); but not of a mere spes successionis (Allcard v. Walker, 1896, 2 Ch. 369). This power of disposition includes (1) the married woman's equitable interest in a mortgage debt (Williams v. Cooke, 4 Giff. 343; Miller v. Collins, 1896, 1 Ch. 573; overruling Re Newton, 23 Ch. D. 181; secus, where the charge had been paid off: Re Algeo, I. R. 2 Eq. 485); (2) the married woman's interest whether in possession or reversion in proceeds of real estate devised on trust for sale, whether the sale be or be not made (Briggs v. Chamberlain, 11 Ha. 69; Tuer v. Turner, 20 Beav. 560; Re Jakeman, 23 Ch. D. 344). So where personalty in which the married woman had a reversionary interest under a settlement prior to M. W. Rev. Int. Act, 1857 (post, p. 333), had in breach of trust been invested in land, she could dispose of her interest under this section (Re Durrant and Stonor, 18 Ch. Div. 106). And a conveyance by cestui que trusts of land held on trust for sale to the trustee for sale who had purchased it, was held void as against a married woman c. q. t. who had not acknowledged the deed (Franks v. Bollans, 3 Ch. 717). The formalities prescribed by this section must be observed in dealings by the married woman with land of which she is trustee (Re Harkness and Allsopp, 1896, 2 Ch. 358). A declaration of trust whereby the married woman effectually parts with the entire equitable interest in property is a "disposition" within this section (Carter v. Carter, 1896, 1 Ch. 67). And where the property is copyhold the declaration binds her heir, the case not falling within the final proviso (Ib.). The fact that the husband is at the time an undischarged bankrupt does not invalidate a conveyance under this section (Re Jakeman, 23 Ch. Ď. 344). As to the effect of a lease by a husband and wife of the wife's land not acknowledged by her, see Toler v. Slater, L. R. 3 Q. B. 42. The formalities of this section are unnecessary in the following cases: (1) Generally in the case of separate estate whether independently of, or under, the M. W. P. Act, 1882 (see post, pp. 319, 343); including the case where a married woman is dealing as a mortgagee with land on the security whereof her separate money has been advanced (Re Brooke and c. 74, s. 77. Fremlin, 1898, 1 Ch. 647). (2) In cases within the proviso at the end of 3 & 4 Will. 4, the section; see Green v. Paterson, 32 Ch. Div. 95; Carter v. Carter, sup. (3) Where a married woman trustee is conveying land as bare trustee under sect. 16 of the Trustee Act, 1893 (post, p. 758; Re Howgate and Osborn, 1902, 1 Ch. 451; Re Docura, Docura v. Faith, 29 Ch. D. 693; and compare Re Harkness and Allsopp, 1896, 2 Ch. 358, sup.). (4) Where the provisions of an act of parliament substitute other proceedings (Ex p. Ellison, 2 Y. & Coll. 528). (5) Under sect. 52 of the Conv. Act, 1881 (post, p. 595), a married woman may now by deed unacknowledged release her power over any property, whether real or personal, and whether in possession or reversion and (where the power is coupled with an interest) whether in respect of such interest she is restrained from anticipation or not (Re Chisholm, Hemphill v. Hemphill, 1901, 2 Ch. 82). As to leases or sales of a married woman's property under S. E. Act, 1877 (post, p. 625), see sects. 12, 22, 50 and 51 of that act. In the case of conveyances by a married woman under the S. L. Act, 1882, sect. 61 of that act (post, p. 703) seems to render an acknowledgment unnecessary. Where her property is sold in a partition action, she can, without deed acknowledged, request a sale under sect. 6 of the Partition Act, 1876 (post, p. 740), and elect by examination in court to take the proceeds as personalty (Standering v. Hall, 11 Ch. D. 652; Wallace v. Greenwood, 16 Ch. D. 362). Purchase-money of real estate belonging to a married woman, which Purchasehas been paid into court, may be paid out to her upon her examination money in without a deed acknowledged (Re Hayes, 9 W. R. 769; see Re Trevylyan, court belong31 L. J. Ch. 560; Gibbons v. Kibbey, 10 W. R. 55; Clark v. Clark, 14 ing to married W. R. 449; White v. Herrick, 4 Ch. 345). Where the fund is small the woman. examination will be dispensed with (Re Clark, 13 W. R. 401; Knapping v. Tomlinson, 18 W. R. 684; Frith v. Lewis, 1881, W. N. 145). Where the married woman is a lunatic, her heir and her own beneficial, Lunacy. but not her legal, interest can be bound by an order of the court (Re Stables, 4 D. J. & S. 257). (3) By the present section a married woman was enabled, with the con- Contracts. currence of her husband, to contract by an acknowledged deed so as to bind her non-separate land, but not herself personally (Crofts v. Middleton, 8 D. M. & G. 192; Pride v. Bubb, 7 Ch. 64). A contract unacknowledged will not bind her so far as regards non-separate land (Castle v. Wilkinson, 5 Ch. 534; Cahill v. Cahill, 8 App. Cas. 420; Williams v. Walker, 9 Q. B. D. 576); even if she is a trustee for sale (Avery v. Griffin, 6 Eq. 606; sce Re Harkness and Allsopp, 1896, 2 Ch. 358). Nor will her husband's contract bind her (Barnes v. Wood, 8 Eq. 424; Nicholl v. Jones, 3 Eq. 696). Non-separate land is now less common having regard to M. W. P. Act, 1882. In cases falling within that act, see as to contracts, sect. 1, subsect. 2 (post, p. 342), and M. W. P. Act, 1893, s. 1, post, p. 360. As to the effect of fines under the old law, see May v. Roper, 4 Sim. 360; Forbes v. Adams, 9 Sim. 462. (4) In some cases a married woman could by election bind her non-separate Affirmation real estate without acknowledged deed. Thus where previous to the of voidable marriage of a female infant a settlement was executed of her real property settlements. the settlement was not void but voidable (Cooke v. Cooke, 38 Ch. D. 209); and on attaining her majority she could by her acts during coverture without any acknowledged deed affirm the settlement so as to bind the property (Barrow v. Barrow, 4 K. & J. 409; see Re Hodson, Williams v. Knight, 1894, 2 Ch. 421; Wilder v. Pigott, 22 Ch. D. 263, the case of a reversionary interest in personalty). A similar conclusion was arrived at in the case of a reversionary interest in personalty, where previous to the marriage of an adult female there was an agreement for settlement which did not comply with the Statute of Frauds (Greenhill v. North British Insurance Co., 1893, 3 Ch. 474). Where, however, a married 3 & 4 Will. 4, c. 74, s. 77. (5) Disclaimer by married women. Disclaimer generally. woman executed but did not acknowledge a separation deed purporting to deal with her real estate, she could not by acting upon it make the deed binding (Harle v. Jarman, 1895, 2 Ch. 419). Similarly in the case of a post-nuptial settlement purporting to deal with the married woman's reversionary interest in personalty (Seaton v. Seaton, 13 App. Cas. 61). As to the affirmation or repudiation of voidable settlement, see further the note to the Infant Settlements Act, 1855, post, p. 726. The Irish statute 4 & 5 Will. 4, c. 92, s. 68, contains the additional word disclaim, after the words "dispose of." By Real Prop. Act, 1845, s. 7, post, p. 520, a married woman may disclaim by deed made conformable to this act. As to the release and extinguishment of powers, see post, p. 318. An interest devised vests in the devisee by presumption of law before entry (Co. Litt. 111 a). The old doctrine was, that an estate of freehold could be disclaimed only by matter of record (Butler and Baker's case, 3 Rep. 26). But it is now established that a deed is sufficient for that purpose (Townson v. Tickell, 3 B. & Ald. 31). This case has been followed in a case where a deed of disclaimer by a devisee in trust of freehold and copyhold property was held to vest the entire legal estate in his co-trustees (Begbie v. Crook, 2 Bing. N. C. 70; and see observations on Townson v. Tickell, in 4 M. & R. 189). The disclaimer must be clear and unequivocal (Doe v. Smyth, 6 B. & C. 112). It is most prudent that a deed of disclaimer should be executed by a person named trustee, who refuses to accept the trust, but there may be conduct which amounts to a clear disclaimer (Re Birchall, Birchall v. Ashton, 40 Ch. Div. 436). As where a trustee under a will purchased a part of the real estate, and took the conveyance from the widow, who was tenant for life, and the heir, to whom the estate must have descended, upon the disclaimer of the trust (Stacey v. Elph, 1 M. & K. 195). A disclaimer by one of the three executors of a will, who were directed to sell copyholds, by a deed executed some time after the sale, reciting that he had from the testator's decease declined to act, and had never acted in the executorship or trusts of the will, was held to be a refusal ab initio, there being nothing to impeach the bona fides of the transaction (Peppercorn v. Wayman, 5 De G. & S. 230; see Harris v. Watkins, 2 K. & J. 473, as to presuming a disclaimer by a devisee). A disclaimer after the exercise of various acts of ownership is void (Bence v. Gilpin, L. R. 3 Ex. 76). A devise of copyholds may be disclaimed by word of mouth only before the devisee has been admitted (R. v. Wilson, 10 B. & C. 5; see Shepp. Touchs. 452). A gift of personal chattels or a term of years, may be waived and avoided by parol (1 Ventr. 128). On a disclaimer by a devisee the estate will descend to the heir, or pass to a remainderman (Ib. 116). And on the disclaimer of one of two assignees of a term, the whole interest will rest in the other (Smith v. Wheeler, 1 Vent. 128). The disclaimer of one of several trustees has the effect of vesting the estate in the other trustees exclusively (Small v. Marwood, 9 B. & C. 300; Browell v. Reed, 1 Hare, 435; see Re Birchall, Birchall v. Ashton, 40 Ch. Div. 436; Doe v. Harris, 16 M. & W. 517). A trustee cannot disclaim part of a trust, e.g., as to all property in England (Re Lord and Fullerton, 1896, 1 Ch. 228). The execution of a conveyance of trust premises has been held sufficient evidence of acceptance of the trust (Urch v. Walker, 3 M. & C. 702). In Crewe v. Dickin (4 Ves. 97), one of two trustees released and conveyed to his co-trustee; and it was held, that the trustee must be considered as having accepted the trust (see, however, Nicholson v. Wordsworth, 2 Swanst. 371). A trustee of real estate, who disclaimed all estate, powers, &c., in the estate devised, was held not to be a necessary party in a conveyance to a purchaser, nor in a receipt for the purchase-money (Adams v. Taunton, 5 Madd. 433. See, in addition to the cases cited, Litt. ss. 684, 685; stat. 21 Hen. 8, c. 4; Co. Litt. 113 a; Bonifant v. Greenfield, Cro. Eliz. 80; Godb. 77; Anon., 4 Leon. 207; Hawkins v. Kemp, 3 East, 410; Thomson v. Leach, 2 Vent. 198; Carth. 211, 230; 2 Salk. 616; Show. P. C. 151; 3 Lev. 284; 1 Show. 296; Rep. temp. Holt, 665). It was held, that a discretionary power given to two trustees to sell copyholds, 3 & 4 Will. 4, one of whom disclaimed, might be exercised by the other trustee (Affleck c. 74, s. 77. v. James, 13 Jur. 739). In Sharp v. Sharp (2 B. & Ald. 405), it was held that trustees had not acted, though they had conveyed the estate instead of disclaiming. A feme covert made a disposition of property, as to which it was doubtful whether it was settled to her separate use. The husband disclaimed: it was held, that, whether separate property or not, the husband's disclaimer gave effect to the disposition of the wife (Rycroft v. Christy, 3 Beav. 238). See, further, as to disclaimer, Lewin on Trusts, 209 et seq., 10th ed. given to a 78. Provided always, that the powers of disposition given to The powers married woman by this act shall not interfere with any power of disposition which, independently of this act, may be vested in or limited or married reserved to her, so as to prevent her from exercising such power woman by in any case, except so far as by any disposition made by her this act not to under this act she may be prevented from so doing in consequence any other of such power having been suspended or extinguished by such powers. disposition. interfere with In the corresponding clause in the Irish statute, 4 & 5 Will. 4, c. 92, Irish statute. s. 69, the following qualification is added, "but such powers of disposition Restraint on shall not enable a married woman to dispose of lands, or any estate anticipation. therein, where the settlement or other instrument under which she may be entitled to the same shall contain a valid restriction against the anticipation thereof by such married woman." This has been said to be an expression by the legislature of what was meant by the English act (Baggett v. Meux, 1 Phil. 628). As regards powers of appointment, it was held under the Irish statute, that a restraint imposed on a life interest would not prevent the release of a power (Heath v. Wickham, 5 L. R. Ir. 285; see as to England, Re Chisholm, Hemphill v. Hemphill, 1901, 2 Ch. 82, ante, p. 315). As to how far other statutory powers of disposing of a married woman's property are affected by a restraint on anticipation, see S. E. Act, 1877, s. 50, post, p. 645; S. L. Act, 1882, s. 61, post, p. 703. (1) Other Statutory Powers of Married Women...317. (2) Dominion of Married Women over Property by means of Powers ...317. (3) Different Kinds of Powers, their Release and Extinguishment...318. (4) Separate Use, and Restraint on Anticipation...319. (1) By the custom of London, confirmed by statute 34 & 35 Hen. 8, c. 22, Other statuand of several other cities and boroughs, as Norwich, &c., &c., a married tory powers. woman, on being privately examined before the mayor, may bind herself by a deed acknowledged and inrolled (Hob. 225; Com. Dig. London (N. 3); 2 Inst. 673; 1 Prest. Abst. 336; Roper on Husband and Wife, 531; 4 Cruise's Dig. tit. xxxii. ch. 2, pl. 33). By statute 32 Hen. 8, c. 28, the husband and wife were empowered to make leases of the wife's lands (see Doe v. Weller, 7 T. R. 478). This act has been repealed by S. E. Act, 1856, s. 35, and certain powers of leasing a married woman's lands are given by the S. E. Act, 1877, s. 46, post, p. 643; see also S. L. Act, 1882, s. 61, post, p. 703. By Infants' Prop. Act, 1830, s. 12, power was given to a married woman under an order of court to surrender leases and take new leases (extended to Ireland, 5 & 6 Will. 4, c. 17). (2) Prior to the M. W. P. Act, 1882, the disabilities of married women at Dominion of common law, independent of statute or particular customs, to alien their married |