vent had vexatiously defended an action brought Dec. 15, 16, 22, Feb. 23, April 25 and 21, and July 4. Mrs. Vaughan exercised the power of revocation against him by the opposing creditor.

V. C. KINDERSLEY'S COURT.

specialty and simple contract. The causes came on upon further directions, and the principal question for the determination of the court was whether the property appointed by the will of Lady Dunboyne, and over which she had a general power of appointment, was liable to the payment of her debts or engagements in the nature of debts in preference to her ap pointees upon the equitable doctrine that where a man having a general power of appointment over property exercises his power either by deed or will, the property so appointed forms part of his assets, so as to be subject to the demands of his creditors in preference to the claims of his legatees or appointees. Daniel, for the plaintiff, one of the children and the heir-at-law of Lady Dunboyne, contended that the exercise by Lady Dunboyne of her general power of appointment in favour of her children, did not render the property subject to it liable to her creditors; because, first, the equitable doctrine was not applicable to the case of an appointment by a married woman, and the property, therefore, was not made liable as her assets; and, secondly, this was an appointment in favour of children who would, in default, have taken under the original settlement, and such an exercise of a power could have no other effect than to distinguish between the objects who were to take.

ment of the money. As she was then a married of a general power unexercised, it ought not to apply woman, it was conceded, on the part of Mr. Gates, to the case of a general power when only exercisei that this deed could not be supported as a mortgage; to a limited extent," which it is said is the case here. but it is contended that, under the covenant for re- By the term "limited power," I presume is meant spepayment contained in the mortgage-deed, he is a cial power, that is, a power to appoint to special objects. creditor by specialty. Mr. Waugh also claims to be And by the term "exercised to a limited extent "must a creditor under a similar transaction, dated the be meant exercised in favour of special objects. If such 24th June 1813; and Mrs. Allaway also claims to be is not the sense in which it is intended to employ those a creditor of Lady Dunboyne's by virtue of a bond terms, I have failed to apprehend the argument. The dated the 13th Feb. 1836, under the hands and seals children then in whose favour the appointment is of Mr. and Mrs. Vaughan. These three persons made, are thus assumed to be special objects. Special claim to be creditors by specialty; other persons objects of what? Not special objects of the power; claim to be simple contract-creditors of Lady Dun- for if that were so, the power would not be a general, boyne, partly for money lent to her, partly for goods but a special power. The only sense in which they sold and delivered, and partly for work and labour can be called special objects is, that, as the settlement done. The dates of the transactions with these simple gives them an interest in default of appointment, they contract-creditors (calling them so) do not appear; are so far, and to the extent of that interest, special but I assume that they took place after the marriage in objects of the settlement, if the power be not exer August 1842. The particulars of these claims I have cised. But the settlement itself provides that the very taken from the schedule to the Master's report. There interest in respect of which alone they are to be is no doubt that by the 18th section of the Wills Act, regarded as special objects of the settlement will be the 1 Vict. c. 26, the will made by Mrs. Vaughan in destroyed, if the power be exercised; and they are not 1839 was revoked by her marriage with Lord Dun- special objects, quoad the appointment to be made in boyne, so far as related to the freehold estates com- exercising it, because the appointment may be made prised in the settlement of 1831, inasmuch as those in favour of any object whatever, without restriction estates would, by virtue of the limitations of the set- The fourth point insisted upon by the appointees is tlement, pass to her heir in default of appointment. this, that the equitable principle in favour of creditors Greene with him.-This was a power to appoint by With respect, however, to the leaseholds and other does not apply to the case where the appointer is a will only, and very different from a power under which personal estate, which by the limitation of the settle- married woman, because she cannot contract debts the donee could obtain the absolute enjoyment of the ment would not, in default of appointment, pass to and the appointed property does not, by the effect of property. Such a power as this latter one would be a her executor or administrator, or to the person en- the appointment, become settled to her separate use general power of appointment by deed or will, under titled as her next of kin, under the Statute of Distri- This argument renders it necessary that I should which the donee could in his lifetime make the pro-butions, the Master has found that the will was not consider the question, whether a married woman who perty absolutely his own; and, if he did so, he would revoked by that marriage. No one has impugned by the fixed general rule of law, is incapable of onmake it available for the benefit of his creditors. But that finding; and I do not see any reason to question tracting debts, is regarded by courts of equity as beig that was not the present case, which was one of a its correctness. The persons who claim to be cre- to any and what extent capable of so doing. Although feme covert, who could at law contract no debts, ditors of Lady Dunboyne insist that the court ought from an early period courts of equity had so far who had no estate except in this court, who could to apply to this case that principle of equity by which departed from the settled rules of law with respect to only bind herself by contract here, but even here only property which has been appointed to volunteers in a feme covert, as to admit of property being settled in so far as affected any separate property she might exercise of a general power of appointment is made trust for her separate use, and had established the possess. Separate property could only exist during available to the payment of the appointor's debts; principle that with respect to the property so settled coverture; therefore the exercise of this power did and they claim to be paid their debts out of the lease- she should be considered as a feme sole, quoad the capa not convert the property comprised in it into separate hold and other personal property comprised in the city of enjoying and the capacity of disposing of that estate; and therefore, quoad the appointed property, settlement of 1831, which has been appointed by the property, it is remarkable how long and steadily they she neither had nor could have any creditors: will of Mrs. Vaughan. The appointees resist this refused to grant to her the other capacity of a for (Holmes v. Coghill, 7 Ves. 498; Townsend v. Windham, claim on several grounds; first, they insist that the sole, that of contracting debts. It might very reasonVes. sen. 1; Bainton v. Ward, 2 Atk. 172; Tollet principle is not applicable, even in the case of a man; ably be considered that consistency required that sha v. Tollet, 2 P. Wms. 489; Jenney v. Andrews, 6 Mad. whereas in the present case, the power is only to be should have that capacity to the same limited extent 264; Evans v. Saunders, 22 L. T. Rep. 343; George v. exercised by will, and not by deed. No authority to which she was constituted a feme sole, although to Milbanke, 9 Ves. 190; Owens v. Dickenson, 1 Cr. & Ph. whatever is adduced in support of this proposition. have extended her capacity of contracting des 48; Hughes v. Wells, 9 Hare, 749; Greatley v. Noble, It is admitted that, if the power authorised its being beyond that limit would have been clearly a violation 3 Mad. 79; Hulme v. Tennant, 1 Bro. C. C. 16; Stuart executed by deed or will, and the donee exercises it of all principle. But so deeply were courts of equity v. Lord Kirkwall, 3 Mad. 387; Murray v. Barlee, by will, the principal will apply. Now it is not the impressed with the propriety of adhering to the rule 3 Myl. & K. 209.) mere possession of the power, but the exercise of the of law by which a married woman is incapable d power, which can ever give occasion for the application contracting a debt, that they would not recognise in of the principle. And if it will be applied at all her the capacity of doing so at all, not even to the where the power is exercised by will, I do not see same limited extent to which they have constituted what difference it can make whether the power did her a feme sole. After a time, however, being pressed or did not authorise its exercise by deed as well as by by the injustice of allowing her, after having delib will. In Jenney v. Andrews, the very case was pre- rately and solemnly entered into an engagement f sented of an appointment by will under a general the payment of money, to continue in the enjoyment power, which by the terms of its creation only autho- of her separate property without paying her creditors rises the donee to exercise it by will. It does not ap- the courts at first ventured so far as to hold that pear to have occurred to the learned counsel for the she made a contract for payment of money by appointees to argue the point now insisted upon. The written instrument, with a certain degree of formality only question argued was, whether among the credi- and solemnity, as by a bond under her hand a tors of the appointor, whose debts were to be paid seal, in that case the property settled to her se out of the appointed fund, creditors who were such parate use should be made liable to the payment at the time of the bankruptcy of the appointor (which it; and this principle (if principle it could be ca occurred some time previously, and under which he was subsequently extended to instruments of al obtained his certificate) should be included. Sir John formal character, as a bill of exchange or promissory Leach, then V. C., expressed himself in these terms: note, and ultimately to any written instrument. F "Where there is a general power of appointment by still the courts refused to extend it to a verbal agree will, and an appointment is made, the appointee is a ment or other common assumpsit, and even as to the trustee for creditors, but it is not for creditors at the more formal engagements which they did hold to be time of the execution of the will, but at the death of payable out of the separate estate, they strug the testator." This declaration of Sir John Leach's against the notion of their being regarded as debts, and opinion would be sufficient authority for me, even had for that purpose they invented reasons to justify the a I any doubt upon the point. The second ground upon plication of the separate estate to their payment, with which the appointees insist is this, that whereas the out recognising them as debts, or letting in verbal principle applies only when the appointment is made tracts. One suggestion was, that the act of disposing in favour of volunteers, in the present case the ap- or charging separate estate by a married woman was, pointees are not volunteers because they are not reality, the execution of a power of appointment, a strangers to the settlement, but the children who that a formal and solemn instrument in writing wo by its provisions are to take in default of appoint- operate as an execution of the power, which a c ment. It appears to me that this contention is alto-assumpsit would not do. The fallacy of this reass gether founded on a misconception of the term "volun- has been repeatedly exposed, and it has been tre teers," as used with reference to persons in whose observed, first, that it confounds two things, whi favour an appointment is made under a general power. are quite distinct in their nature-power and separat Every one in such a case is a volunteer to whom or use; secondly, that, even supposing the act of as in whose favour the appointor is under no obligation posing of separate estate by a married woman to b to appoint the property. The interest given by the set- regarded as the execution of a power, the reas tlement to the children in default of appointment is one assigned violated the principle long established wit thing, the interest which they take by virtue of the respect to power, that a power could not be exercise appointment is another and a very different interest; by an instrument which did not refer either to t and although it is true that they are not volunteers power itself, or to the property which was the sele with respect to the former, yet that interest is de-of it; and, thirdly, that, if there be several of Sa stroyed by the execution of the power, and the interest instruments, and they are to be regarded as success The VICE-CHANCELLOR, after stating the foregoing which they take under the appointment they owe to executions of a power, the appointees would rank facts, proceeded as follows:-In March 1843 Lady the voluntary act and bounty of the appointor. And the order of the dates of the appointment; wherea Dunboyne, acting under the name and description of in respect of this interest they are mere volunteers, it is held that, when the persons claiming under Mrs. Vaughan, widow, borrowed 4500l. of George just as much as any strangers would be, in whose instruments are let in upon the separate property Gates, the plaintiff in the second cause, and, to secure favour the donee of the power might have thought the party executing them, they must stand pari p the repayment thereof, she executed to him a mort- fit to exercise it. The third point taken by the ap- Another reason for letting in written instruments a gage, or what purported to be a mortgage, of some pointees is this: "That whereas the equitable princi- to the separate property of a married woman is th property. This deed bears date the 7th March 1843, ple in favour of creditors does not apply to the case that, as a married woman has the right and capi and contains the common covenant by her for repay-of a limited power though exercised nor to the case specifically to charge her separate estate, the execu

Wilcock, Q.C., and Faber, for Mrs. Harvey, the other child of Lady Dunboyne, cited the following cases:-Heatley v. Thomas, 15 Ves. 596; Flemming v. Buchanan, 22 L. J. 886; Aylett v. Ashton, 1 Myl. & Cr. 111; Kellaway v. Johnson, 5 Bea. 319; Mara v. Manning, 2 J. & La. T. 311; Callow v. Houle, 11 Jur. 984.

Bailey, Q.C., for Gates, the plaintiff in the second cause. The contention on the other side, that Lady Dunboyne, having only a power to appoint the property by will, could not, by exercising such a power, make it her own, so as to let in creditors, was wrong. "There was no such rule as that; or, if there was, the question did not depend upon it. When a person having a power to appoint by deed or will did not exercise the power by deed, the right to appoint by will existed, and the power so to appoint did not lose its efficacy. The rule of the court was that if a person having a general power exercised that power at all, such exercise made the property his own, and therefore assets for the purpose of paying his debts: (Thompson v. Towne, 2 Vern. 319; Heatley v. Thomas, 15 Ves. 596; Petre v. Petre, 14 Beav. 197; Jenney v. Andrews, 6 Madd. 264; Nail v. Punter, 5 Sim. 562; Hughes v. Wells, 9 Hare, 749.)

Smythe, with him, cited 3 & 4 Will. 4, c.104; Spence's Eq. Juris. 519; Spicer v. James, 2 Myl. & K. 387; Sugden on Powers, vol. 1, 208 (6th edit.); Derbyshire v. Home, 3 De G. M. & G. 80; Norton v. Turvill, 2 P. Wms. 144; Hulme v. Tennant, 1 Bro. C. C. 16; Sockett v. Wray, 4 Bro. C. C. 483; Whittle v. Henning, 2 Ph. 731; Greatley v. Noble, 3 Madd. 79; Murray v. Barlee, 3 Myl. & K. 209; Lord v. Whitwick, 2 Pl. 110; Cole v. Scott, 1 M. & G. 518; Doe v. Walker, 12 Mee. & W. 591.

Glasse, Q.C. (Nalder with him), for Waugh, another creditor.

Ellis, for the trustees of the settlement of 1831. Follett, Q.C. (P. M. Leonard with him), for the trustees of the settlement of 1842.

Ward, for the administrator ad litem.
Shapter, for other parties.
Greene, in reply, commented on the cases cited on
behalf of the creditors.

AUG. 26, 1854.]

V. C. KINDERSLEY'S COURT.

LAW TIMES REPORTS.

V. C. KINDERSLEY'S COURT.

settled to her separate use, yet her person and her tion by her of a formal written instrument must be held to indicate an intention to create such special general property remain as completely exempt as charge; because, otherwise, it could not have any before from all liability, and she could not be sued for it at law, notwithstanding her having become disoperation at all. To this it has been, as I think, couCovert. But in whatever sense the contracts or endnsively answered-first, that the same reason would apply with precisely equal force to any, even a verbal gagements for the payment of money entered into by sit or promise; secondly, that it was against a married woman having separate estate may be called all principle that a specific charge on any given pro- debts, or to whatever extent they possess the characperty should be created by an instrument which did teristics of proper debts, this, at least, appears to me Det contain the slightest reference to that property; perfectly clear, that, as her capacity to contract them and, thirdly, the last of the before-mentioned objec- exists only by reason of her being to a certain limited tions to a written contract by a feme covert applies extent clothed by courts of equity with the character qually to its being treated as a specific charge; for, of a feme sole, their efficacy as debts must be contined if it were a specific charge, the persons in whose within the same limits which circumscribe her character as a feme sole; that is, within the limits of the favour such charges were made must rank in the order of such successive charges, and not pari passu. particular property which is expressly settled in trust To give effect to them as debts The inconsistency of drawing this distinction between for her separate use. the different engagements of a married woman having to the extent of those limits, would be consistent with separate estate, with reference to the different forms the principle upon which she is constituted a feme in which they are contracted, together with the un- sole, and rendered capable of contracting them; to satisfactory character of the reasons assigned to justify give effect to them beyond those limits, would be a violation of all principle. The question that then such distinction, has forced itself more and more on the attention of successive judges, and a growing arises is this:-Is a married woman, in the view of tendency has been manifested to adopt a more con- courts of equity, a feme sole with respect to a general sistent view, by holding, first, that, to the same expower of appointment of which she is the donee; or, tent to which a married womau is by courts of equity to express the same question in different words, is a constituted a feme sole, with respect to the capacity of married woman held, even by courts of equity, to enjoying and the capacity of disposing of property, she possess the capacity of executing an express power ht also to be regarded as a feme sole with respect of appointment, on the ground that the property to the capacity of contracting debts, or engagements comprised in the power stands settled to her separate Clearly not. The capacity of a married the nature of debts; and, secondly, as a corollary use? of the former, that all such debts or engagements woman to execute a power of appointment, and to should stand on the same footing, in whatever form appoint the property which is the subject of the power, contracted. I refer to the observations of Sir Thomas is not the creation of courts of equity, but is equally Plamer, M.R., in Clinton v. Willy, mentioned in a recognised by courts of law, and was so before the rote to 1 Sug. on Powers, 206 (2nd edit), those of doctrine of separate use was established. Thus (to Lord Brougham in Murray v. Barlee, and particularly put the case of a legal power), if real estate be limited to those of Lord Cottenham in Owens v. Dickenson. In to the use of A. for life, with remainder to such uses the latter case Lord Cottenham, after showing that as B., a married woman, shall by deed or will apthe reasons formerly assigned for making the separate point (it is immaterial which) a court of law, which property of a married woman liable to her written knows nothing of separate estate, holds her capable engagements, namely, that they should be regarded (though a married woman) of executing this power, as an execution of a power or as specific charges, were and gives effect to the estates created by her execution "The view taken of it. And so it does if the estate be limited to the bot tenable, proceeds in these words. " of the matter by Lord Thurlow in Hulme v. Tenant use of trustees during the life of a married woman, is more correct; according to that view, the separate in trust for her separate use, with remainder to such uses as she shall by deed or will appoint; and it property of a married woman being a creation of saity, it follows that, if she has a power to deal with makes no difference whether the limitation in default 4, she has the power incident to property in general, of appointment is to herself or to a stranger. And so when the equitable interest in any property of which amely, the power of contracting debts to be paid out fit; and, inasmuch as her creditors have not the the legal estate is vested in trustees is limited to such reans at law of compelling payment of those debts, persons and for such purposes as a married woman court of equity takes upon itself to give effect to shall by deed or will, or by will only, appoint; ati, not as personal liabilities, but by laying hold of although a court of equity can alone take cognisance he separate property as the only means by which of it as being matter of trust, that court recognises they can be satisfied." And in a subsequent passage and maintains her capacity to exercise such power, and a the same judgment, he says:-"I observe that in gives effect to the estates and interests by her execution Clinton v. Willes, Sir Thomas Plumer suggested a of it, not by virtue of or with reference to the doctrine habt whether it was necessary they should be of separate use or any other doctrine peculiar to eared by writing; and it certainly seems strange equity, but simply because, in this respect, equity hat there should be any difference between a contract follows the law, and does, with respect to the equitable writing when no statute requires it to be in writing, estate, just what a court of law would do if the and a verbal promise to pay. It is an artificial dis- power were a legal one. Thus, if property be vested nction, not recognised in any other case; on that in trustees in trust, during the life of a married woman, to pay the income to her for her separate use, oint, however I give no opinion at present." His Lordship addresses himself to the two questions. It and, after her death, in trust for such persons and in may, therefore, I think, be now considered to be the such manner as she shall by will appoint, although a octrine of this court that the engagements and con- court of equity deals with the life-estate with reference to its own peculiar doctrine of separate use in a tracts of a married woman having property settled to her separate use, at least such of them as are in married woman, giving her the power and capacity to dispose of the life-interest as if she were a feme writing, are to be regarded as debts, or in the nature of debts, and that her property so settled is liable to sole, yet, with respect to the remainder from and the payment of them as such, and that this principle after her death, it does not deal with that on the footis entirely founded on the doctrine of courts of equity ing of any such doctrine; it does not regard the by which she is constituted a feme sole as to that power as a trust for her separate use, nor does it reeparate property. It has not yet, indeed, been made cognise her capacity to exercise it on the ground that the subject of positive decision, that the principle she is constituted a feme sole in respect of it, but it holds her to be capable of executing the power, and embraces her verbal engagements or cases of common Garapsit. And in the seventh edition of Lord St. gives effect to the estates and interests created by its Leonards' work on Powers, published in 1845, page 206 execution, upon the same grounds and principles as I believe the last edition), his Lordship (but without govern courts of law with respect to legal powers. In referring to Murray v. Barlee or Owens v. Dickenson), fact it treats the matter with respect to the remainder, observes that the prevailing opinion then was, that which is the subject of the power, exactly as it would her separate estate was not liable to general demands do if the trust or the life-estate, instead of being depoa her-the prevailing opinion. Considering how-clared to be for her separate use, was expressed to be for the married woman generally, without any mention of ver the opinions I have referred to, and the reason of the thing, I think it very probable that when that her separate use, or as it would do if the trust of the question arises for decision it will be decided in the life-estate was declared in favour of a third person. firmative. I must observe, however, that a contract It is true that a general power of appointment given to a married woman enables her to dispose of the for the payment of money made by a married woman having separate estate, though called a debt, is only property by her own sole and separate act, indepena debt sub modo: when compared with the debt of a dently of her husband, and in that one point it bears a resemblance to a trust for her separate use; but it fene sole or of a man, it lacks most of the qualities of debt; it cannot be enforced against her person is not, on that account, the same thing as a trust for either at law or in equity; even in a court of equity it her separate use. Indeed, how can it be the same thing cannot be enforced against property, real or personal, as a trust for her separate use, when a court of law, which is a perfect stranger to the doctrine of separate held generally in trust for her, not for her separate use. use in a married woman, recognises it if the power be And although she is, of course, a necessary party to a a legal one, and enables her to exercise it as fully sait to enforce it as against property held in trust for her In truth, the and effectually as a court of equity. separate use, the suit must be against the trustees in whom the property is vested; and the decree cannot go difference between a trust for the separate use of a against her to pay it, but only against the trustees, married woman, and a power of appointment given to a married woman, is neither more nor less than the to compel them to pay it out of the separate estate. well-established difference between property and If she should survive her husband, although the creditors may have the right in equity still to enforce power; the former is her property, with the incidents of property. It stands upon precisely the same footthe payment of the debts contracted during coverture out of any remaining estate or interest which was ing as the case of a feme sole having a life-estate,

V. C. KINDERSLEY'S COURT.

with general power of appointment over the reversion or remainder by her will. Now, the power which I have been considering all along is a power affecting the reversion or remainder, while this trust for separate use affects the life-interest only; but the disonly to that case-that is, not only to the case where tinction between power and property will apply not the power affects a different estate or interest from that which is the subject of a trust for separate usebut the same distinction applies even where the power of appointment, if it be an express power of appointment, affects the same estate and interest which, a married woman. And with regard to that point subject to the power, is settled to the separate use of (although not necessary to the present case, it illustrates the distinction between property and power), I would refer to two cases, both of which were decided by the late V. C. of England, and the latter of which came In that case Lady cases was Barrymore v. Ellis. on appeal before Lord Cottenham. The first of those Barrymore, who was then a widow, was entitled to an annuity of 300l. a year for her life; and she afterwards married a Mr. Williams, and upon that marriage a settlement was made by which this annuity, which was only to endure for her life, was vested in trustees during the joint lives of the intended husband and wife, in trust to pay the annuity as it should become due and payable to such person or persons, and for such intents and purposes as Lady Barrymore own handwriting, notwithstanding her said covershould by any writings signed with her name, in her ture, direct or appoint, but so as not to deprive herself of the benefit thereof by sale or anticipation; and for want of such direction or appointment to pay the same to Lady Barrymore for her own sole, separate, and peculiar use and benefit. Now, according to the in default of execution of that power a trust for her language, there was first a power of appointment, and separate use; she had only a life-interest altogether. When she married she had only the annuity for her of that recognised that the power, and the trust for her life. Now the view which the V. C. of England took separate use in default of execution of the power, were two distinct things-so much so that, inasmuch as the language prohibiting anticipation was only applied in terms to the execution of the power, he held that, though she could not execute the power by anticipause, to which he considered the clause against anticition, she might in respect of the trust for her separate pation did not apply-she might by anticipation, by virtue of her dominion over her own property, regarded as a feme sole, although a feme covert, exercise her power of disposition. The other case is the case of Brown v. Bamford. Now it will be observed that in the case of Barrymore v. Ellis the trust in In this case of Brown v. default of appointment was to pay it to Lady Barrymore for her separate use. Bamford the language of the clause in trust for the separate use, in default of appointment, was different. It was to pay it into her own hands. There was first a power of appointment with a clause against anticito her separate use for life, but not expressed in the pation, and then in default of appointment a limitation same terms generally for her separate use, but in trust to pay it into her own hands. The V. C. considered v. Ellis applied to this case also; and he said that in that the principle on which he had decided Barrymore order to prevent the married woman having the power of disposing of the property under the trust for her her receipts alone should have been good discharges; separate use, there ought to have been a direction that but it will be observed that it is clearly recognising the distinction between the power and the trust for the separate use, although they both apply to the same estate and interest. The latter case came before Lord Lyndhurst on appeal. It was contended that in the power, although expressed in the terms of a point of fact (and it was a very natural contention), power, was nothing more than stating the power of disposition, which as a married woman she could have, and that it was to be considered as the same That was not the view which the L. C. thing.

The L. C. does not

took of it, any more than it was the view which
the V. C. had taken of it.
dispute, on the contrary he recognises, the distinc-
tion on which the Vice-Chancellor of England in
had proceeded-that is, that a
both the cases
power, and, in default of the execution of the
power, a trust for the separate use, are two distinct
things; and that the language might be such that
the clause against anticipation might apply to the
But the ground on which he reversed the
power only, and not apply to the trust for the sepa-
rate use.
V. C.'s decision in the last case was that the principle
After adverting, first of all, to the
did not apply to the last case according to the lan-
"The right to appoint is not
guage of it.
power, he says:
to be exercised till the rents or other income be-
come due." Then he says: "In default of any such
appointment, the rents, as they become due, and
those only, or so much of them as shall not have
been appropriated by the appointment, are to be paid
into his own hands. All this is very clearly and pre-
cisely expressed." Then commenting on the language,
he proceeds thus: "The effect therefore of the prohi-
bition is to restrain Sophia Bamford (that is, the
married woman), from `assigning, charging, or in

V. C. KINDERSLEY'S COURT.

exclusively, her husband not in any way interfering with it, by the custom of London for that special reason a married woman can contract a debt. But, I have said, that exception, founded on a special reason, in fact establishes the general rule; and this general rule is not merely rule of law, it is a rule of quity. A court of equity regards that rule just as uch as a court of law does, subject to the exception of the special case of property settled to the separate use of a married woman, which I will consider in a moment. If the assets of a married woman are being administered in a court of equity, a person claiming as a creditor by reason of a contract she has made during her coverture for money lent or goods supplied, could never be allowed to stand as a creditor against her general assets. But a court of equity establishes this well-known principle, that property may be settd to the separate use of a married woman; that in respect of the property thus settled she is in fact bostituted a feme sole; in respect of that particular operty, but only to the extent of property so sold, she is regarded as a feme sole, having all those rights and incidents which a feme sole has in respect of her property-the right of enjoying the property, the right of disposing of the property as she pleases, and the right and capacity to contract debts in respect of such property; that is, payable out of such property. But of course her condition as a feme sole, or as being garded in the light of a feme sole, is limited entirely by the extent of the property which is thus settled to her separate use; and if property be settled to her separate use and she contracts debts, so far as the property settled to her separate use will extend it will be liable to pay her debts; but any other property she is owner of, whether real or personal, would not be able to pay those debts, no more than if she had no property at all settled to her separate use. Then comes the question which was in fact the point mainly aquid—the question whether property which is made subject to a power of appointment by a married woman, is property settled to her separate use. It was contended that if property is limited, subjet to a power of appointment by a married woman, that property is property standing settled to ber separate use; and the argument in support of it (I think I may say the only argument, but certainly the main arguiment in support of it) was this, that if she have a power of appointment she may, by the exercise of that power, dispose of the property without the intervention of her husband, and therefore it is property settled to her separate use. In fact, the argument stands thus: property settled to the separate Be of a married woman may be disposed of by her without the intervention of her husband; property which she has the power to appoint may be disposed by her without the intervention of her husband; therefore the one is the same thing as the other-that that there being two things which have one quality incident in common, therefore they are the same thing. Now that is reasoning which I confess I cannot ede fo. Let us consider the matter a little further. When it is contended that property which is subject to the power of appointment of a married woman, under power given to her, is property settled to her separate e, does the proposition mean this: that while the power exists, and before it has been exercised, it is property settled to her separate use? Suppose property is limited to a married woman for life with a imitation to her children, and in default of children living at her death, or in default of issue living at her death, then it is limited to such uses or upon such trusts or for the benefit of such persons as she shall by deed or will appoint, or as she shall by will appoint-does the proposition mean that in that state of things, when nothing has been done, the property then stands settled to her separate use? I suppose that must be the meaning of the proposition, because the argument is that she has power to dispose of it independently of her husband, and for that reason it is property settled to her separate use. Therefore, when he proposition is examined it must mean that, here property is subject to her appointment before she has exercised the power at all it stands limited to her separate use, because she may dispose of t by exercising the power without the intervention of er husband. Now let us consider that for a moment. In the first place, is it settled to her separate use at all? Take the case of a man. A man has a power of pointment; is that property limited to his use? learly not; and it signifies nothing whether the one of the power is a man or a married woman; a neither case is the property limited to the use of he donee of the power. If it is not limited to the use of be married woman at all, which, of course, it is not, ww can it be limited to her separate use? I confess appears to me a proposition which requires only a ittle consideration to show how entirely untenable it How can property stand settled to the separate se of a married woman, when it does not stand setled to her use at all? Now this may be placed in a nore obvious and perhaps in a more stringent light y just taking this very case of Lady Dunboyne, which is now before me. Here was property limited 6 the use or for the benefit of a married woman for er life, and after her death, in the event of there eing no children (it is no matter whether there be he intervention of children or not), after her death VOL. XXIIL-No. 596.

it is to go as she shall by will appoint. Now, how is her separate property, because a court of equity it possible to say that that reversion or remainder has nothing to do with it; a court of law alone expectant on her death stands limited to her separate has cognisance of it. Now instead of legal estates use? It is true that it has one of the incidents of and a legal power, suppose the estates and the power property limited to her separate use, namely, that she to be equitable, the case being in all other respects may dispose of it, but only by a particular act and the same; property stands limited to trustees in trust in a particular manner, without the intervention of for a feme sole for her life, or in trust for a stranger her husband. But has it the other incidents of pro- for his life, and after the death of the tenant for life, perty limited to separate use? Can she deal with it in trust for such uses as the feme sole by deed or will, as she likes? If property is limited to the separate or by will only, shall appoint. Well, before her use of a married woman, she may deal with it in any marriage, no one would contend that such reversion manner in which a jeme sole or a man may deal with it. is settled to her separate use. Then she marries. Upon But that is not the case here; she cannot enjoy it; what principle does the power become thereby proshe cannot dispose of it except by doing a particular perty settled to her separate use? It is not because act. In short, it is no more property settled to her it is an equitable power that it becomes property separate use than property which is her own fee settled to her separate use. The reason why a court simple estate. The mere incident of its being dis- of equity deals with the power and the estate which posable by a particular act, without the intervention may be created by its exercise, is not because it has of her husband, cannot make it property settled to any peculiar jurisdiction to enable a married woman her separate use. But look a little further. The to exercise a power of appointment; a court of law doctrine that property may be settled to the separate does that. That a married woman has the right and use of a married woman is a doctrine exclusively of a capacity to exercise a power of appointment, is as court of equity. It was created by a court of equity; much the doctrine of a court of law as it is of a court it is exclusively cognisable by a court of equity; a of equity; it is not necessary that she should be recourt of law knows no more about the doctrine of garded as a feme sole in order to do that. The only reaproperty settled to the separate use of a married son why in the latter case a court of equity deals with woman than it does of an equity of redemption, or of it is, that, the estate and the power being equitable, any other matter which is exclusively the creature, they are under the exclusive jurisdiction of a court of and within the jurisdiction, of a court of equity. Now, equity; but in exercising that jurisdiction, equity if that be so, take an ordinary case; I will take the follows law. A court of equity recognises and maincase of real estate, because that may stand limited to tains (just as a court of law does) the broad distincuses, so as to admit of the limitation of legal estates tion between property and power: what a court of law in remainder. Suppose real estate limited to the use regards as property or estate where the lin.itations of a married woman for life, and after her death to the are legal, à court of equity equally regards as use of such persons as she shall by deed or will appoint, property or estate where the limitations are or as she shall by will appoint, with a limitation in equitable, and what a court of law regards as default of appointment to the use of a stranger in fee. power where the limitations are legal, a court of These are legal estates, with a legal power. If she equity equally regards as power, where the limita exercises the power, the estates which she creates by tations are equitable; and a court of equity can no the exercise of the power are legal estates. The more regard a power of appointment vested in a marpower and the exercise of the power, and the estates ried woman as property settled to the separate use of created under it, are under the exclusive jurisdiction the donee of the power, than a court of law can reand cognisance of a court of law. But the proposi-gard a legal power vested in a man as propty settion is, that, because it is a power which she may iled to the use of the donee of the power. Does it exercise without the intervention of her husband, then make any difference in either of these supposed the remainder is settled to her separate use. If it be cases, either in the case where the estates are legal, or so, then the doctrine of separate use in a married in the case where they are equitable estates, whether woman, and of her being regarded as a feme sole the prior life-estate is or is not limited to the separate in respect of property so settled, so far from being use of the feme sole? Supposing that property stands the exclusive doctrine of a court of equity (as up to limited to trustees only, during the life of the feme this hour has been invariably asserted or assumed), sole, in trust for her, for her separate use, and after her is in fact equally recognised and acted upon by courts death to the use of such persons as she shall appoint, of law. Now really, when these matters are con- that is a legal power over the reversion or remainder exsidered, it appears to me that the proposition that a pectant on her own decease. The limitation of the lifepower of appointment in a married woman is pro- estate to her separate use, means that it shall be indeperty settled to her separate use, is a mere confusion pendently of any husband with whom she may afterof the boundaries between property and power-be- wards intermarry; but the remainder or reversion is tween estate and power-which now at least, after so limited to the use of such person as she shall appointmany years and centuries of discussion, I conceive to that is, not limited to her separate use. Suppose she afterbe clearly established; and if we introduce confusion wards marries, that does not alter the nature or conbetween property and power, we really unsettle all dition of the reversion or remainder, or make it an the principles of law applicable to property. An estate limited to her separate use; it remains just estate limited either to the use of a married woman what it was before the marriage. The life-estate is or in trust for a married woman, whether it be for indeed limited to her separate use, and so it was belife or in fee, is the married woman's property, just as fore the marriage; but that does not affect the conit is in case of a man or feme sole; but property dition of the remainder or reversion. So it is the limited to such uses or upon such trusts as she shall same thing if the remainder or reversion is merely appoint, whether it be by way of present interest or by equitable. Suppose the fee is limited to trustees in way of reversion or remainder, is not property in the trust for a feme sole for her life, for her separate use, married woman at all, but simply power. Now, as independently of any husband with whom she may this was the point on which the argument mainly afterwards intermarry, and, after her death, in trust turned, I would wish to suggest a few cases of the for such person as she shall by deed or will, or by will most ordinary occurrence, without searching for rare only, appoint, the life estate stands limited to her and uncommon cases, for the purpose of illustrating separate use; but no one will contend that the reverwhat I conceive to be the principle applicable to this sion is so. As I observed before, it is not settled to question. Let me take the case first of all where her use at all; she has merely a power to appoint it. property is limited to such uses or in such manner or If she marries, her marriage does not alter the nature upon such trusts as a married woman shall appoint, or condition either of the life-estate or of the reverwhere the power is created before the marriage. Let sion; each remains precisely what it was before. The me take the case of real estate standing limited to fact of the life-estate being already settled to her the use (and I take legal estates now in the first separate use cannot make her power over the reverinstance) of A. for life, with remainder to his sion become, by her marriage, property settled to her children, and, in default of A.'s children, with re- separate use. Now all these observations apply, not mainder to such uses as B., a feme sole, shall appoint. only to real estate, but the same doctrine applies preOr, which will be just the same thing, suppose the cisely with regard to personal property. Personal life-estate is limited to the use of B., a feme sole, with property may be settled to the separate use of a feme a limitation to her children, and, in default of sole-that is, with a view of its being independent of children, to such uses as she (the feme sole) shall any husband with whom she may afterwards interappoint, and she is still a feme sole-will anybody marry; or it may simply be settled to her use, without say that that remainder or reversion is limited to her any such expression of its being settled to her sepaseparate use? Nobody, I presume, will contend it is rate use, or it may be settled to such uses or purposes In that state of things the woman marries; no as she shall appoint. The life-estate may be settled new settlement of this property being made, does in one of these modes; and the reversion in another that marriage make this power suddenly to become and subsequent marriage does not make a new settleproperty settled to her separate use? By what con- ment of it, so as to make that which was not before trivance, by what process, is that done? Well, here settled to her separate use become property settled to then we have the case in which property in remainder her separate use. If, then, a power of appointment or reversion stands limited to such uses as a married vested in a married woman is not property settled to woman shall appoint; she having had the power be- her separate use where the power was created before fore she married, and then having married, is this her marriage, what possible difference can it make if property settled to her separate use? No; it has not the power be created after the marriage? If the been contended it is; and she may dispose of that father or other relation of a married woman devises independently of her husband. Therefore, it is not property to her for life, and after her death to such merely because it possesses the incident of being uses as she shall by deed or will appoint, so that the disposable by the wife, independently of the power is a legal power, that power is no more prohusband, that it is property settled to her separate perty settled to her separate use than it would have been if the devise had been made before the marriage,

So.

use.

And if it be a legal power, it cannot be