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The general result of the cases may be briefly stated in these general terms:

I. An assignment by a married woman of a vested reversionary interest in chattels personal, if bequeathed or settled to her separate use, will be binding upon her even after the determination of the coverture.

II. A married woman cannot directly deprive herself or be deprived of a reversionary interest, as such, in personalty not given for her separate use, so effectually that she will be precluded from asserting a claim to it, if her husband dies before her without having reduced it into possession.

III. But (even setting aside the authority of Doswell v. Earle) a married woman may deprive herself or be deprived of chattels personal in which she has a vested reversionary interest, by means of the conversion of that reversionary interest into an interest in possession in herself, through the operation of merger consequent upon a surrender or assignment made to her of the prior life interest, where, at least, the party to whom that prior life interest is limited is some other person than her own husband; and by means of a subsequent reduction of the property into the possession of the husband.

IV. If, however, the reversionary interest of a married woman in personalty is contingent, and bequeathed or settled to her separate use, and, à fortiori, if it be contingent and not bequeathed or settled to her separate use, she cannot deprive herself or be deprived of it, so as to be bound after the determination of the

coverture.

pears from a passage in Viner's Abridgment, tit. "Disagreement," A., pl. 6, wherein it is said, that, where a feme covert is enfeoffed, and afterwards the baron disagrees to it, yet all things executed between the livery and disagreement remain good. In fact, disagreement and waiver can have no effect whatever in the case of a surrender of a limited interest, capable, in itself, of merging, and actually merging, in consequence of such surrender. For if merger would be consequent on such surrender in the case of a feme sole, by analogy to real estate, and because it would be absurd that a life interest and the absolute interest in quasi remainder should continue to subsist as distinct interests in the same person; merger would be equally consequent in the case of a feme covert, unless any obstruction arises from the principles of equity in favor of a feme covert; merger being the result of the union of the two estates or interests, irrespective of the legal character of the party in whom they are united. But, as we shall presently see, no such obstruction exists, so that merger does take place. And if merger once takes place, the prior interest is thereby absorbed or extinguished; and if once absorbed or extinguished, it must for ever cease to exist. If, indeed, a feme, on becoming discovert, disagrees to a conveyance to her in fee, or to an assignment of the absolute interest in personalty, she may disagree to that to some purpose; for the subject-matter of the conveyance must necessarily exist, and the subject-matter of an assignment of that kind of interest may exist. But if she disagrees to and waives a surrender or assignment of a limited interest after merger has taken place, she cannot thereby call into existence again that interest which has been absorbed or extinguished, and therefore is necessarily gone for ever.

2. But, secondly, it is said, that, although the feme may be unable to avoid the transaction by disagreeing to and waiving the surrender or assignment, yet the contrivance must be inefficient, because, even admitting her vested reversionary interest might be merged, yet her contingent right by survivorship cannot be merged. The reply to this objection is, that there is no such thing as a contingent right by survivorship, considered as in any way distinct from her vested reWith regard to the third of these propositions, we versionary interest. It is true that the term is used have seen that such is the doctrine of Lachton v. Adams, by Mr. Jacob in the opinion which led to the instituCreed v. Perry, and Wilson v. Oldham, and that such tion of the suit of Wilson v. Oldham; and it is in fact was the opinion of that very eminent lawyer, the late in common use, and is doubtless very convenient to exMr. Jacob. And the writer of these observations sub-press with brevity the right which a married woman mits, that this doctrine is perfectly sound in principle, although certain doubts would seem to be entertained upon this point by many learned members of the Profession.

1. One ground of doubt is, that a feme has a general right to disagree to and waive a purchase or gift on becoming discovert. Now, with regard to this, a married woman may even acquire real estate by purchase; and the conveyance thereof to her is good in the first instance, and continues good during the coverture, or until her husband disagrees to it. And although it is true that she may disagree to and waive the purchase after her husband's death, (2 Bl. Com. 292; Co. Litt. 3. a.; 1 Bac. Abr., tit. "Baron and Feme"), yet this does not amount to a disclaimer of it, and denial of the estate having ever vested in her, but simply to a disagreement as to retaining what had vested in her while covert, and a waiver of it from the time of such disagreement; for it may be observed, that, in the books, disclaimer and disagreement are mentioned as two distinct ways of avoiding a deed, (see 4 Vin. Abr., tit. "Disagreement and Disclaimer," and 4 Cru. Dig., c. 26); every disagreement not being a disclaimer, which is an act that must be evidenced by a deed, though every disclaimer may perhaps be said to be a disagreement. And the fact that disagreement has not the effect of replacing things in the same state in which they were before, ap

has to a reversionary interest in personal property, if her husband predecease her without having reduced the property into possession. But if it is supposed, that, on the death of the husband in the lifetime of the wife, there accrues to her any right or title to the property in which her reversionary interest subsists, distinct from that which she had during the coverture, such a notion is erroneous. The true state of the case is simply this: the very same kind of right to the property which constituted her reversionary interest in such property, and which she had at the moment of marriage, she continues to have during the coverture, unaltered by the marriage except in regard to the cessation of her disposing power; and the very same right, and nothing more, she still has after the coverture has ceased. She gains no new right to the property by surviving her husband: properly speaking, she has no right by survivorship; her right is quite independent of survivorship. If her interest is reduced into possession by the husband during the coverture or merged, she loses all right, whether she survives him or not. If, on the other hand, it is not reduced into possession by him or merged, her right continues in her during the coverture and after the coverture has ceased. The only difference in this last case between the right as existing during the coverture, and the right as existing after the coverture has ceased, is this; that, after the coverture has ceased, the right is

no longer liable to be defeated by the reduction of the property into possession by the husband, and it is alienable by the feme. A right by survivorship, therefore, as a distinct thing from the reversionary interest itself, has no existence. The reversionary interest itself is that which constitutes the right, and the only right, which the feme has, not only in her husband's lifetime, but also after his decease. If that reversionary interest has ceased to exist, by reason of merger or otherwise, no right remains to her at all, whether her husband be living or dead.

3. It is said that the above mode of barring the wife, by the acceleration of her reversionary interest, is repugnant to the course taken by courts of equity in regard to married women; and that an obstruction arises from the doctrines of equity to the adoption of that mode as an effectual means of attaining the desired end.

sonalty be given in trust for a married woman for life, with remainder over, it is no fraud in her husband to dispose of it at once; yet there can be little doubt, that, by so doing, he disappoints the intentions of the giver. Now, as regards the design of the giver of a reversionary interest to a married woman, there is no more manifestation of a design to secure a provision for the wife against the marital power in this case, than in the former case of an immediate interest; nor is there even any proof of a desire that she should not enjoy the property until the time fixed for the commencement of her enjoyment thereof, except so far as there is a desire to benefit the prior taker by the postponement of such enjoyment for his sake. The obvious and actual motive for the postponement is, to benefit the prior taker, not to secure a provision for the subsequent taker against the marital power, or to deprive her, for any reason personal to herself, of the enjoyment of that provision until the period actually fixed for the commencement of such

Secondly, the above-mentioned contrivance for barring a married woman is no fraud on the policy of the law or of the courts of equity. Where is the supposed especial favour with which a married woman is treated by a court of equity, as against her husband's power, independently of an express and unequivocal intention of the author of an instrument, except so far as the court enforces a settlement out of her own property, unless she waives it? The creation of a separate inalienable estate is a mere carrying out of the express and unequivocal intention of the giver of the property. If there were any such especial favour, why is it not shewn in regard to equitable reversionary interests in terms for years? Why is it not shewn in giving dower of a trust estate in cases not within the Dower Act?

If it be objected, that, by establishing and carrying out any such arrangement as that above alluded to, a court of equity is depriving a married woman, or assist-enjoyment. ing her to deprive herself, of rights which she would have at law, the answer to this objection is, that, when the prior life interest has been surrendered or assigned, in such a way that (but for any supposed obstruction from the doctrines of equity) it would merge in the reversionary interest, and such reversionary interest would thereby be converted into an interest in possession, the wife loses all right at law, if she ever had any, without the interference of a court of equity. If the reversionary interest is a legal interest, she loses it by the legal operation of the surrender or assignment, in creating a state of things in which the legal consequence of merger ensues, which accelerates the reversionary interest, and places the property in the power of the husband, without the interference of a court of equity. Equity, in this case, even if it be called upon to establish or sanction such an arrangement, does not deprive the married woman of her legal rights, or assist her in depriving herself of them; for the operation of law, consequent upon the legal acts of third persons, has already taken away those legal rights; and all that the court does is this: to declare that those legal rights have been taken away, and that the property is to be dealt with accordingly. And if the reversionary interest is an equitable interest, then, of course, it would be a contradiction in terms to speak of her having any right at law. Equity, in this case, only acts according to its well-known course of assimilating equitable and legal interests, in accordance with its maxim, "Equity follows the law;" allowing the same effect to the assigninent or surrender in equity, in the case of such an equitable interest, as it would possess at law in the case of a legal interest; just as it allows the husband's disposal of his wife's reversionary interest, and even contingent interest, in the trust of a term for years to bind the wife, by analogy to the effect of his assignment of her legal reversionary interest in a term. Donne v. Hart, 2 Russ. & My. 360.

If it be urged, that the plan in question is a fraudulent contrivance to deprive the feme of the provision which she would otherwise have, there does not appear to be any real foundation for the objection.

First, it is no fraud on the intention of the author of the instrument creating the reversionary interest, or not more so than other transactions which are allowed every day.

There is no doctrine to the effect, that, where the interest of a married woman happens to be circumstanced in such a way that it cannot be affected while it continues to be so circumstanced, no means shall be used to change the circumstances, so as to place the interest in a position to be affected. To act upon such a doctrine, would be in direct contravention of the fundamental maxim, that equity follows the law, and, after all, would, in many cases, as in Macarmic v. Buller, be the greatest pos sible unkindness to the wife herself. In a case in which the writer was instructed, a short time ago, to settle a deed to har the claim of a married woman to her reversionary interest, the prior taker, who was the widow of the author of that reversionary interest, was desirous of giving up her life interest in a small fund, in order to settle in business the husband of her daughter to whom such reversionary interest was limited. Can it be supposed, that, in a case of this kind, a court of equity would be doing a real kindness to the wife, or best satisfying the intentions of the author of the provision for her, if it rigidly secured that provision against all means to bring it within the marital power in the lifetime of the prior taker? And, besides these considerations, why should that provision be so carefully guarded against the marital power during the lifetime of the prior taker, when, at the instant of such prior taker's decease in the lifetime of the husband, it becomes at once subject to his disposing power?

4. But it is further objected, that it is a maxim, that what cannot be done directly, shall not be done indiHow can it be supposed that this contriv-rectly. This maxim, however, does not apply to the ance would be invalid on the ground of fraud, when a present subject; it only applies to an attempt to do that court of equity holds, that if a reversionary interest, which is contrary to some fundamental rule or principle and even a contingent interest, of a married woman in of policy. The attempt in question is not of that characthe trust of a term for years, is sold by her husband, ter; being only an attempt to bar the claim of a feme such sale will bind her, though the husband dies in her to an interest in personal property by taking away its lifetime, and while the interest still continues rever-reversionary character. The maxim above mentioned sionary and contingent? (Donne v. Hart, 2 Russ. & no more applies to this attempt, than it applies to the My. 360; 2 Story's Eq. Jurisp. 1410). But, even set-plan of barring her dower by means of the ordinary ing aside this argument, if an immediate interest in per- uses to bar dower, where prior to the late Dower Act, no

direct attempt, by means of a conveyance or express declaration, could have accomplished that purpose.

No case has yet been adjudged, where an attempt has been made to dispose of personal property in which a married woman has a reversionary interest, by the use of the preliminary means of merger and acceleration, where the prior interest has been limited to the husband himself. But the writer inclines to the opinion, that, even where the husband is the prior taker, the same means of surrender, merger, and acceleration of the wife's reversionary interest may be effectually employed, as a mode of placing that interest within the power of the husband. But, of course, in this case, in which the prior interest is limited to the husband, a preliminary assignment by the husband will be necessary: he must first assign his prior interest to a third person; and then the surrender may be made by such third person to the wife.

All the previous reasoning as to the cases where the husband himself is not the prior taker, except that which is directed against the objection, that the transaction in question is a fraud upon the intention of the author of the instrument, equally applies to cases where the husband is the first taker. But that objection is far more difficult to meet in cases of the kind last mentioned: yet, when the matter is closely considered, it is conceived that it may be completely disposed of, even as it applies to those cases.

her own.

Where an interest is limited to a married woman by way of remainder after a life interest given by the same instrument to her husband, a provision is made for her, after her husband's death, by the very terms of the instrument; and, at first sight, it does seem a fraud on the instrument to adopt a contrivance which has the effect of depriving her of the provision so made for her, and limited to commence at a time which is capable of being regarded as personal to herself at a time when the wife in general stands most in need of property of But, on closer consideration, there would seem to be but little weight in this objection. The time of enjoyment is not of the essence of the intention in this case. Even in this case, the primâ facie motive for the postponement of the enjoyment till the period of the husband's decease, is, to benefit the husband, as the prior taker. What the author of the instrument essentially intended was, to make a provision, generally, for the married woman; but, as there was a concurrent intention to make a provision for her husband also, the general intention for providing for the wife is accomplished by giving her a reversionary interest after a life interest in her husband. The primâ facie reason, then, why her interest was reversionary, and incapable, as such, of being reduced into the possession of the husband, is not a reason personal to herself, and not a reason affording any peculiar ground for supposing an exemption from marital power to have been particularly intended; and not a reason, therefore, which effectually distinguishes this case of a provision for the wife after her husband's death, or, in other words, this case of a reversionary interest expectant on the determination of a life interest in the husband, from the other cases where the prior life interest is limited to a third person. The benefit of the prior taker is the primâ facie reason of the postponement; or, at all events, that is a reason which fully accounts for the postponement, and to which such postponement may consequently be fairly attributed. And if this be so, there is no substantial reason, founded on the supposed intention of the author of the instrument, why legal means should not be used by the husband for reducing the interest of the wife into possession, by taking away the reversionary character of the interest which primâ facie was given to it, or may be fairly regarded as given to it, not for the benefit

of the wife, but in order to provide for him in the first instance; or, at least, no more reason why this should be considered as a fraud on the intention of the author of the instrument, than an absolute disposition by the husband of an immediate interest limited in trust for his wife for her life, (not for her separate use), with remainder over, or of her equitable reversionary interest in a term for years, or than the analogous case of a disposition by the husband and wife of her trust estate in real property expectant on a life estate in himself. But it will be said, that, as the state of the law must be presumed to have been known by the author of an instrument, and as the general impression of the Profession has been that such a reversionary interest could not be effectually dealt with; so, a reversionary provision may have been made for the feme, rather than an immediate one, for the very purpose of protecting it from the marital power. This, however, is purely conjecture. The desire of providing for the husband in the first instance, as we have seen, is a reason which may fairly be regarded as fully accounting for the reversionary character of the wife's provision. And, if the author of the instrument designed to secure a provision for the wife against her husband, we have seen that he could have effectually accomplished that design, by making it contingent on her survivorship. But, even if that was clearly and unequivocally his design, in the limitation in question, still the frustration of that design by the use of ordinary legal means would be no more objectionable, as a fraud on his intention, than the barring of an entail with the view of selling the entailed estate and spending the proceeds. Yet, in regard to entails of equitable interests, a court of equity has allowed them to be barred by the same means as legal interests, instead of refusing to sanction such transactions on the ground of fraud on the issue, who are entitled to the consideration of the court, and, in the case of an entail under a settlement, are purchasers for valuable consideration. And, as equity, in this instance, allows legal means to have an effect on equitable interests analogous to the effect which those means would have on legal interests; so, it ought to allow the same means which would be effectual in the disposition of a married woman's legal reversionary interest in personal estate, to be as effectual in the case of her equitable reversionary interest. For it is a fundamental maxim, that equity follows the law; the true meaning of which (as the writer has endeavoured to shew in his "Manual of Equity Jurisprudence," pp. 18-24) is, that equity is governed by legislative enactments and the rules of law in regard to legal estates, rights, and interests, and that it is regulated by the analogy of such legal estates, rights, and interests, and the legislative enactments and rules of law affecting the same, in regard to equitable estates, rights, and interests, where any such analogy plainly subsists, if, in each case, there are no peculiar circumstances rendering it absolutely necessary to deviate from this rule, or creating an equitable obligation in one of the litigant parties, and an equitable correlative right in favour of another litigant party, and requiring a different course to be taken in the particular case, without overturning or destroying the general application of any legislative enactments or rules of law that may, in terms or by analogy, apply to the case. In the case with which we are now concerned, we are speaking of the "general application" of certain rules or principles of law to the case of reversionary interests, where there are no "peculiar circumstances." Any real or supposed hardship that would result from the general application of the legal rules or principles of merger to such interests, would not constitute a sufficient ground for withholding the general application of those rules or principles. For, equity follows the law, even where, by so doing, great hardship is occasioned; as in the case of following the rules

of primogeniture in instances where all the younger children are wholly unprovided for.

Rolls Court.

Before the Right Hon. the MASTER OF THE Rolls, at

.... June 22
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If the contrivance for barring a married woman by merger and acceleration be allowed, no doubt great evil will result in many cases, by leaving a widow entirely destitute. But, on the other hand, as in Batt v. Cuthbertson, there are many cases where a reduction of the wife's interest into possession may rescue a whole family, the wife herself included, from abject and hopeless destitu- Saturday tion, or from difficulties of the most trying character; Monday where the preservation of that interest would be at- Tuesday.. tended with no other good than to provide for an event (that of the survivorship of the wife) which is as likely not to happen as to happen, and which the wife herself would of course rejoice to risk. The truth would seem to be, that it is impossible to determine this question on principles of expediency. And, as a question of legal and equitable principle, the writer conceives, that, looking to the analogies of equity jurisprudence, the preponderance of principle is in favour of the validity of the mode of disposition above pointed out, even where the husband himself has the prior life interest. For he submits, that, according to those analogies, equity ought to follow the law by sanctioning the acceleration of her equitable reversionary interest, and ought to confine its protective care to the enforcing of her equity to a settlement out of such interests, unless she consents to waive the same.

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the Rolls. Motions.

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24 Petitions in General Paper.

Short Causes, Consent Causes, and Consent Petitions every Saturday at the sitting of the court.

Notice.-Consent Petitions must be presented, and copies left with the Secretary, on or before the Thursday preceding

EQUITY SITTINGS AFTER TRINITY TERM, the Saturday on which it is intended they should be heard.

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