benefit ;1 and so also in Florida.2 These States, too, have followed substantially the English rule upon the subject of the liability of the estates of femes covert to their separate engagements.3 The same general rule has also been approved in the federal courts.1 Those States which were mentioned as having followed the lead of the South Carolina case of Ewing v. Smith, in regard to the power of a married woman to convey her separate estate, have also generally refused to adopt the English rule upon the subject of the feme's power to bind it by contract. In South Carolina and Massachusetts, however, the separate estate is chargeable for debts contracted on its account and for its use, but not for the general engagements of the feme. 104. The English rule above stated, in reference to the powers of a feme covert over her separate estate, and the liability of that estate to her engagements, naturally led to some plan by which the operation of the rule could be avoided, and the will of the donor carried out by giving the married woman the property in such a way that it would be protected against herself (so to speak) and her creditors, as well as against her husband and his indebtedness. The plan adopted was the insertion, in the trust instrument, of the clause against anticipation which was first invented by Lord Thurlow, and used in drawing Miss Watson's settlement. This clause, viz., "not by way of anticipation," was held to be effective in imposing a restraint upon alienation, and became the usual language in settlements. No particular form 1 Frary v. Booth, 37 Verm. 78. 2 Lewis v. Yale, 4 Florida, 418. 3 Gunter v. Williams, 40 Alab. 572; Armstrong v. Ross, 5 C. E. Green, 109; Van Kirk v. Skillman, 5 Vroom, 109; Batchelder v. Sargent, 47 N. Hamp. 265; Imlay v. Huntington, 20 Conn. 175; Cook v. Husbands, 11 Maryl. 492; Penn v. Whitehead, 17 Grat. 503; Ozley v. Ikelheimer, 26 Alab. 382; Lillard v. Turner, 16 B. Mon. 374; Harris v. Harris, 7 Ired. Eq. 111; Whitesides v. Cannon, 23 Missouri, 457; Schafroth v. Ambs, 46 Id. 114; Lewis v. Yale, 4 Flor. 418; Robert v. West, 15 Ga. 123; Dallas v. Heard, 32 Id. 604. In New York, see Yale v. Dederer (supra), and Ballin v. Dillaye, 37 N. Y. 35. In Wisconsin, Todd v. Lee, 15 Wis. 365; 16 Id. 480. In Tennessee, see Hughes v. Peters, 1 Cold. 67. 4 Cheever v. Wilson, 9 Wall. 119. 5 Lancaster v. Dolan, 1 Rawle, 231; Metcalf v. Cook, 2 R. Island, 355; Litton v. Baldwin, 8 Hump. 159; Bailey v. Pearson, 9 Foster, 77; Perry on Trusts, & 661. 6 Magwood v. Johnston, 1 Hill, Eq. 228; Adams v. Mackay, 6 Rich. Eq. 75; Willard v. Eastham, 15 Gray, 328; Rogers v. Ward, 8 Allen, 388. 7 Lewin, p. 123. 8 Parkes v. White, 11 Ves. 221. of words is, however, necessary. It is enough if the intention to impose the restraint be clearly expressed.1 It will be observed that this restraint upon alienation is a violation of the ordinary rules of property, the general principle being that the power of alienation is a necessary and inseparable incident of ownership which cannot be taken away by any condition or stipulation in the grant. But it being once settled that a wife might enjoy a separate estate as a feme sole, the laws of property attached to this new estate; and it was found, as part of such laws, that the power of alienation belonged to the wife, and was destructive of the security intended for her estate. Equity again interfered, and by another violation of the laws of property, supported the validity of the prohibition against alienation.2 105. An important question which naturally presents itself in regard to these trusts is, "for whose benefit can they be created?" For it is obvious that the trust may either be created for the benefit of a woman coverte at the time, or may be created in contemplation (more or less immediate) of coverture, or may be created for a feme sole without any such contemplation. In other words, can a sole and separate use be limited to a feme sole which will come into operation whenever coverture takes place; or can the trust be called into being merely for the benefit of a woman actually married at the time of its creation? In England, this question was considered in the year 1834, in the case of Massey v. Parker. It was there decided that where a trust of this description was created for the benefit of a feme sole, it would upon her marriage be ineffectual to debar her husband from his marital rights. This decision, which was made by Lord Cottenham when Master of the Rolls, was, however, afterwards overruled by the same judge, as chancellor, in the subsequent case of Tullett v. Armstrong, where the rule was laid down that a valid separate trust could be created for the benefit of a woman, unmarried at the time, which would come. into active operation whenever a marriage took place; and which, moreover, would not cease entirely upon discoverture, 1 Notes to Hulme v. Tenant, 1 Lead. Cas. Eq. 394. 2 By Lord Cottenham, in Tullett v. Armstrong, 4 My. & Cr. 405. 3 2 M. & K. 174. 44 M. & Cr. 377. but would revive and again take effect upon a subsequent marriage. This rule has been adhered to in England, and is now firmly established by many decisions. But it must here be remarked that while a trust for the sole and separate use of a feme may be created when she is sole, yet, if she chooses to make any disposition of the property before coverture, she is at liberty to do so; and that no restraint upon her power of alienation will be tolerated, if she elects to exercise that power before she becomes coverte. In other words, a feme when discoverte has the same power over an estate limited to her sole and separate use, as any other person sui juris; she has the option of determining the trust when unmarried; if she does not choose so to determine it, it will attach upon the first or any subsequent coverture.' 106. The decision in Massey v. Parker has been followed in Pennsylvania, in Arkansas,3 and in North Carolina. In the first named State it must now be considered the settled law that a separate use trust cannot be created except for a married woman, or one in immediate contemplation of marriage.5 Whether "immediate contemplation of marriage" may or may not exist in any particular case, must, it is evident, be a question of fact not always easy to determine. The fact of the marriage taking place shortly after the creation of the trust, is said to be evidence that it was in immediate contemplation." But in other States of the Union the present English rule has been adopted." 107. The restraint upon alienation, of course, will not prevent the feme from disposing of the property settled to her separate use, if she chooses to do so before marriage, or in the interval between different covertures; but the restraint will attach whenever coverture takes place. This is the English rule. But in those States where the separate use can only be created for the See in this connection the case of Wright v. Wright, 2 Johns. & H. 647. 2 Hamersley v. Smith, 4 Wharton, 126; Smith v. Starr, 3 Id. 62. 3 Lindsay v. Harrison, 3 Eng. 311. Apple v. Allen, 3 Jones Eq. 120; though see Bridges v. Wilkins, Id. 342. 5 McBride v. Smyth, 4 P. F. Sm. 245. 6 Wells v. McCall, 14 P. F. Sm. 207; Springer v. Arundel, Id. 218; Ogden's 7 Beaufort v. Collier, 6 Hump. 487; benefit of women who are either actually married, or in immediate contemplation of matrimony, the clause in regard to anticipation is subject to the same rules, and it will be ineffectual except in the two specified cases. The law upon this subject may, perhaps, be summed up in the questions propounded by Lewin, and in the answers thereto-as follows: 1. Can property given to the separate use of a woman be disposed of by her before her marriage? This must be answered in the affirmative. 2. If the property is not so disposed of, does the separate use clause come into effective operation upon first and subsequent covertures? This must also be answered in the affirmative. 3. Is the clause against anticipation valid? It is. It may be added that under the most recent English authorities, the trust for the sole and separate use extends to the absolute interest in personalty, and to the corpus, as well as to the income of real estate.1 If a married woman dies without having disposed of her separate estate by will, her husband, except when controlled by statute, will take the same interest therein as he does in her legal or ordinary equitable estates.2 108. Akin to trusts for the separate use of married women, are what are known as "pin money" trusts. Pin money may be defined to be a yearly allowance settled by the husband upon the wife, for her clothes or other separate personal expenses; and its principal incident is that its purpose is expenditure, and not accumulation. Hence, if a married woman suffers this allowance to remain unpaid for several years, she will be unable to recover more than one year's arrears from her husband or his estate; for the reason that, as this allowance is designed to be appropriated for her personal expenses, it must be presumed that if she has not drawn upon this fund, she has been supplied by her husband from other sources, and that it would therefore be unjust, after he has once supplied her wants, from time to time, to hold him responsible for the accumulation of her allowance, and thus, in effect, compel him to pay it twice. 1 Taylor v. Meads, 34 L. J. Ch. 253. 229; Faries' Appeal, 11 Casey, 29; Perry on Trusts, 2 668; ante, p. 68. When, however, the wife's allowance has, in point of fact, been paid short, she may recover the accumulations. On the other hand, where it appears that the husband has actually paid for his wife's expenses, she cannot even recover the one year's arrears. Nor can the wife's executors recover from the husband or his estate even one year's arrears; because the allowance is entirely personal with the wife, and the reason for its payment ceases with her death. The leading case upon the subject is IIoward v. Digby, where the principles applicable to this species of trust will be found discussed. 109. It has been already mentioned, that the right of the husband to his wife's property is subject to this qualification, viz., that, if for the purpose of reaching her equitable property he is obliged to go into chancery, equity will compel him at her request to make a suitable provision for herself and her children. 110. It had been at first supposed that this right of the wife was of a passive rather than an active nature, and while capable of being enforced in a suit in which the husband was complainant, and which had been instituted by him for the purpose of getting in his wife's equitable choses in action, could not be actively asserted by the wife herself as plaintiff. This idea however was dissipated by the leading case of Elibank v. Montolieu.3 It was there held that the wife could come into chancery as complainant for the purpose of having a settlement made. And the better opinion is that the same rule exists in the United States.* Where, however, the property out of which a settlement is sought is real estate, the wife, it is said, cannot come in as plaintiff.5 In the United States, also, settlements have, in some cases, been 1 Ridout v. Lewis, 1 Atk. 269. 28 Bligh, N. R. 224. 3 5 Vesey, 737. Hill on Trustees, 632 (4th Am. ed.); Perry on Trusts, 629; Kenny v. Udall, 5 Johns. Ch. 464; 3 Cowen, 590; Dearin v. Fitzpatrick, Meigs, 550; Poindexter v. Jeffries, 15 Grat. 363; and the dicta in many cases cited in the American note to Murray v. Lord Elibank, 1 Lead. Cas. Eq. 497. See, however, Jackson v. Hill, 25 Ark. 223. 5 Gleaves v. Paine, 1 De G. J. & Sm. 87. |