1834. MASSEY บ. PARKER. intention as the law will permit to be operative in the case of an unmarried woman. As to the first point, it is settled that a gift to a woman cannot take effect as a gift to her separate use, unless the will affords evidence of the clear unequivocal intention of the testator to exclude the marital right; Brown v. Clark (a), Rich v. Cockell (b), Wills v. Sayers (c), Roberts v. Spicer. (d) If there is any ambiguity on the face of the will as to the intention of the testator to exclude the marital control, the husband cannot be deprived of his legal right. Can it be pretended that there is no such ambiguity in this case? Looking to the language of the will, without reference to the circumstances of the testatrix's family, which, if they could be used for that purpose, would strongly support the argument, is not all the probability in favour of the inference, that the testatrix intended to exclude, not the marital control, but the influence of the mother? It is sufficient that the intention be doubtful, for the purpose of sustaining the claim of the Plaintiff; but, even if that intention were unequivocally expressed, this demurrer must be over-ruled. It may now be considered as settled upon principle and upon the authority of decided cases, that the law will no more permit a person to make a gift and impose restrictions upon the donee's power of disposing of the gift, where an unmarried woman is the donee, than in the case of a male. A single woman has exactly the same rights in this respect as a man; and a gift to her separate use is, to all legal intents and purposes, an absolute gift, the words "to her separate use" being wholly inoperative. (a) 3 Ves. 166. (c) 4 Mad. 409. Separate Separate property is the creature of a court of equity; it can exist only in a state of coverture; and in Barton v. Briscoe (a), it was determined that, when the married woman becomes discovert, she has the same power over her property as other persons. From that decision it followed as a necessary consequence, that when the fetter, which had once existed, was removed, it could not again attach; and that principle being admitted, the next subject of investigation naturally was, whether any restraint upon alienation, in case of future coverture, could be valid. If a married woman, upon becoming sui juris, were emancipated, why should a single woman, who was equally sui juris in respect of the property vested in her, ever be fettered? Restraints upon alienation, in case of future coverture, had long existed, and still continued to exist, in the forms of conveyances; but it was obvious that they could not bear investigation; and accordingly, in Woodmeston v. Walker (b), where this subject was, upon an appeal from a decision of the late Master of the Rolls, very fully discussed, it was decided by Lord Chancellor Brougham, that a gift to the separate use of a woman who was unmarried at the date of the will and at the death of the testator gave the legatee an absolute interest, and that a clause restraining her from disposing of the gift by anticipation was inoperative. Stanton v. Hall (c), Tyler v. Lake (d), Brown v. Pocock (e), Newton v. Reid (g), are all authorities illustrating and confirming this doctrine. As to the case of Adamson v. Armitage, it is by no means clear that Lydia Adamson was an unmarried 1834. MASSEY บ. PARKER. 1834. MASSEY v. PARKER. woman; she might, for any thing that appears to the contrary, have been a married woman, and her husband might have been a party to the suit. But supposing her to have been an unmarried woman, the Court was not, in that case, called upon to determine whether she took any interest under the will exclusive of the rights of any future husband, but whether the gift of the interest of the fund for her sole use and benefit cut down a previous absolute gift of the principal. The decree, moreover, in Adamson v. Armitage, declaring the plaintiff to be absolutely entitled to the fund, is inconsistent with the supposed exclusion of the control of any future husband. It was competent to her, undoubtedly, if she afterwards married, to withdraw her money by a settlement from the marital control; but it was also competent to her to give it, if she thought fit, to her husband; as it was, indeed, to exercise any other act of ownership over her property. The name of appear what But, whatever doubt there may be as to the donee being married or unmarried in the case of Adamson v. Armitage, inv. Lyne it is said the legatee must have been single; for there the gift was to the testator's widow. That is so short a note, that it cannot be relied upon as an authority against the cases in which this subject has been deliberately considered. the plaintiff is wanting; it does not character the parties filled, nor what was the object of the suit; there is no argument; and the case, in fact, amounts only to a dictum of Lord Lyndhurst, that some effect must, if possible, be given to words used by a testator,―a proposition too clear to be denied, but which is open to this observation, that if the only effect which can be given to words used by a testator, is inconsistent with a rule or principle of law, such words must be inoperative. Mr. Mr. Spence, in reply. The MASTER of the ROLLS.* Two questions are raised by this demurrer: first, whether the testatrix has by her will given the income of the fund in question to the separate use of her granddaughter Eliza; and, secondly, whether, if she interded so to do, such intention is now to be carried into effect. The bill, after setting out the will, states that the testatrix died in June 1829; and that in December 1829 the granddaughter Eliza married one Wood, whose assignee the Plaintiff is, and in whose right, as husband of Eliza the grand-daughter, he now claims the interest of the fund. The question is, whether such statement shews any interest in Wood the husband. It is not material to say much upon the first point, but I am of opinion that the will does not give the interest to Eliza separate from the husband. The cases require very distinct and unequivocal expressions, to create a separate interest in the wife. In Tyler v. Lake (a), the Lord Chancellor says that the husband is not to be excluded except by words which leave no doubt of the intention; and of the principle that case of Tyler v. Lake, which is also reported before the Vice-Chancellor (b), and the case of Stanton v. Hall (c), afford strong illustration. In neither of these cases did the claim of the wife prevail; although in Stanton v. Hall the whole machinery of the instrument proved that such must have been the intention, but the required words of exclusion were wanting; and in Tyler v. Lake the trustees were directed to pay the shares of the trust fund into the proper hands of the married women, to and 1834. MASSEY V. PARKER. Nov. 7. · Sir C. Pepys. (c) 2 Russ. & Mylne, 175. (a) 2 Russ. & Mylne, 183. (b) 4 Sim. 144. 1834. MASSEY บ. PARKER. and for their own use and benefit; and if they should be dead, to pay the same to their husbands. Such being the rule, is there in this case no doubt of the intention to exclude the husband? The true construction is quite the other way. There is no mention of the husbands, nor any direct allusion to marriage. There is, indeed, a gift to the children of her grandchildren, but there is nothing to shew that the testatrix had present to her mind the right which future husbands of her grandchildren would obtain in their property. It is immaterial to consider what effect the words might have had, if used with reference to future husbands of her grandchildren, because I am of opinion that they are in this case used with reference, not to any control of such future husbands of the grandchildren, but to the possible control of their mother. But the more important question is, whether the intention to give the income for the separate use of the grand-daughter Eliza, if sufficiently expressed, can, under the circumstances, have effect given to it so as to deprive the husband of his ordinary right to the property? The objection is that, the legatee being unmarried at the time of the testatrix's death, the intended restriction was inconsistent with the nature of the interest given, and therefore inoperative. That an attempt so to fetter the interest of a male legatee cannot succeed, was decided in Brandon v. Robinson (a); and that the same rule applies to an unmarried female legatee, is established by Woodmeston v. Walker (b), and Brown v. Pocock. (c) The only modern case, apparently inconsistent with these decisions, is that of v. Lyne (d); but it is (a) 18 Ves. 429. (b) 2 Russ. & Mylne, 197. (c) 2 Russ. & Mylne, 218. to |