CHAPTER XI. Wife married and title accruing before 1883. Freeholds. MARRIAGE SETTLEMENTS. BEFORE we proceed to discuss settlements on marriage it will be convenient, at the risk of repetition, to state shortly how the wife's property can be dealt with, and what interest her husband takes in it in the absence of a settlement. First. Where the wife was married and her title accrued before 1883 (a). As to property not belonging to her as her separate estate, either expressly or under the M. W. P. A. 1870 (discussed ante, p. 136 et seq.). The husband becomes entitled on marriage to the rents and profits of her freeholds during the joint lives of himself and his wife (M. L. R. P. 122), whether her estate in the lands is legal or equitable; and he can convey his interest in the rents and profits without her concurrence. (Robertson v. Norris, 11 Q. B. 916.) On the birth of issue who may by any possibility inherit he becomes entitled, as tenant by the curtesy, to her freeholds of inheritance during his own life whether her interest is legal or equitable (M. L. R. P. 141; Cooper v. Macdonald, 7 Ch. D. 288); subject to the qualifications that, if the wife takes by descent, the husband must acquire seisin during her life (Co. Lit. 29 a); and that, as to gavelkind land, he becomes tenant by the curtesy of one moiety only, but that he is entitled to the curtesy estate whether issue capable of inheriting is born or not, (a) See M. W. P. A. 1882 (45 & 46 Vict. c. 75), s. 5. Re Harris' Settled Estates, 28 Ch. D. 171. Re Cuno, 43 Ch. D. 12; M. L. R. P. 121 et seq.; M. L. P. P. 384 et seq. FREEHOLDS. 301 and that his estate is subject to cesser on his marrying again (Co. Lit. 30 a, note). The husband and wife together can convey her freeholds, or any interest therein, whether legal or equitable, whether in possession or remainder, and whether vested or contingent, by deed acknowledged under the Fines and Recoveries Act, 1833 (3 & 4 Will. 4, c. 74, s. 77), as modified by the C. A. 1882, s. 7 (b). The interest of the husband in his wife's copy- Copyholds. holds depends upon the custom of the manor. Generally he takes an interest analogous to that which he takes in her freeholds. (See M. L. R. P. 327.) The husband and wife can together convey her legal or equitable interest in copyholds (3 & 4 Will. 4, c. 74, ss. 77, 90) by a surrender made by both and taken on the separate examination of the wife by the steward, subject in some manors to variations of the custom. The wife's equitable interest in copyholds can be conveyed also by the husband and wife together by deed acknowledged by the wife (s. 77). be laid out in and proceeds of estate. sale of real The wife's interest in money subject to an absolute trust Money to for investment in land (3 & 4 Will. 4, c. 74, s. 77), her reversionary interest in the proceeds of real estate subject to an absolute trust for sale (May v. Roper, 4 Sim. 360), and her equitable reversionary life interest in a sum of money properly invested upon a mortgage of land (Miller v. Collins (1896), 1 Ch. 573), can be conveyed by deed acknowledged. The wife's chattels real to which she is entitled in her Chattels real. own right (i.e., not as executrix or trustee), whether her interest is legal or equitable, vest in her husband sub modo. He can absolutely dispose of them; and that, even if her interest is reversionary (c), unless it be of such a nature that (b) See Shelford, R. P. Stat. 292, ante, p. 136. If the wife, on being examined by the Commissioners, states that she intends to give up her interest in the property without having any provision made for her, the purchase-money Chattels personal. Choses in action (e). it cannot by any possibility vest in her during the coverture (Duberley v. Day, 16 Beav. 33); but, if he charges them, the charge does not bind the wife if she survives him. He is entitled to the rents and profits of her chattels real during the joint lives of himself and his wife; but he cannot dispose of them by his will. If he survives his wife, they belong to him by survivorship without taking out administration to her (d), and if he dies in the wife's lifetime without having disposed of them by act inter vivos, they vest absolutely in the wife. (See M. L. P. P. 388; Co. Lit. 351 a; ante p. 138.) The wife's chattels personal to which she is entitled in her own right in possession vest absolutely in the husband on the marriage. (M. L. P. P. 384; Co. Lit. 351 b.) If the husband reduces her choses in action into possesssion (ante, p. 200) during the coverture, they belong to him; if he does not, and the wife survives, they remain her property. If the husband survives, they become his property on his taking out administration to her. (See Smart v. Tranter, 43 Ch. D. 587.) The Married Women's Reversionary Interests Act, 1857, commonly known as "Malins' Act" (20 & 21 Vict. c. 57; see ante, p. 203) provided that after 1857, a married woman might by deed acknowledged, with the concurrence of her husband, dispose of reversionary interests in personal estate to which she became entitled under any instrument made after 1857, unless by such instrument she was restrained from alienating or affecting the interest; but the Act (see s. 4) does not extend to interests in personal estate settled on her by her marriage settlement. Before this Act there was no means whereby a married woman could, either alone or with the But if her interest is equitable, his (d) Re Bellamy, 25 Ch. D. 620 ; 491. (e) See on a wife's choses in action the judgment of Sir T. Plumer, M. R., in Purdew v. Jackson, 1 Russ. at p. 66. CHOSES IN ACTION. concurrence of her husband, dispose of her reversionary choses in action; and, even after the Act, she could not dispose of a reversionary chose in action to which she was entitled under her marriage settlement, not for her separate use. 303 As to property which is her separate estate, either by Separate express declaration or the M. W. P. A. 1870 (ƒ). estate. entitled as feme sole. estate. The husband takes during the wife's lifetime no equitable Wife interest in property which is her separate estate; and she can dispose of her equitable interest in such property either by act inter vivos, or by will, exactly as if she were a feme sole; but, where a legal interest is vested in a trustee for Legal the wife, it must be conveyed by him; and where, by reason of there being no express trustee, it is vested in the husband, it must be conveyed by him, or by him and his wife, exactly in the same manner as if the property belonged to the wife, but did not form part of her separate estate (g). The interests of the husband after the wife's death in Interest of husband her separate estate as to which she dies intestate are surviving. the following, and they have not been affected by the M. W. P. A. 1882 (Re Lambert, 89 Ch. D. 626):-He is tenant by the curtesy of her freeholds of inheritance in those cases in which he would have been tenant by the curtesy if there had been no separate use (Cooper v. Macdonald, 7 Ch. D. 288; Eager v. Furnivall, 17 Ch. D. 115); he is entitled to her leaseholds by survivorship (Archer v. Lavender, 9 Ir. R. Eq. 220); to her personal chattels, jure mariti (Bird v. Peagrum, 13 C. B. 639; Molony v. Kennedy, 10 Sim. 254; Johnstone v. Lumb, 15 Sim. 308), and to her choses in action on taking out administration to her (Proudley v. Fielder, 2 Myl. & K. 57). Women's' Property constituted the wife's separate estate by the Married M. W. P. A. 1870 (which was repealed by the M. W. P. A. Property (f) Presents given to a married woman in contemplation of marriage are her separate property. Re Jamieson, 37 W. R. 464. Act, 1870. Wife married or title accruing after 1882. 1882, but so as not to affect any right acquired while the Act was in force), consisted (M. L. P. P. 392 et seq.) of her earnings in any occupation that she carried on separately from her husband or derived from the exercise of any literary, artistic, or scientific skill, and the investments thereof; investments made in a specified manner in the savings banks, public stocks or funds, joint stock companies, and friendly societies, all of which investments she was authorised to transfer as a feme sole; and also, if she was married after the 9th of August, 1870, personalty to which she became entitled during marriage as next of kin, or one of the next of kin, of an intestate (Re Voss, 13 Ch. D. 504), or any sum of money not exceeding £200 to which she became entitled during marriage under a deed or will, and also the rents and profits of freeholds, copyholds, or customary-hold property descending on her as the heiress or one of the co-heiresses of an intestate (see ante, p. 138). It will be observed that the Act only dealt with the equitable interest, and put the wife into the same position as if the property constituted her separate estate by the Act had been constituted her separate estate by contract (h). Secondly, where the wife was married after 1882; or was married before 1883, but her title accrued after 1882. By the M. W. P. A. 1882, the wife is, for the purpose "of acquiring, holding, and disposing by will or otherwise of" property, put into the position of a feme sole, so that the husband's common law rights are altogether excluded during the coverture, and the wife can deal with the legal as well as the equitable interests in property without his concurrence; but the Act does not deprive the husband after her death (subject to any disposition that she may make by will) of the same rights over her property as he would have had over property settled to her separate use if the marriage had taken place and the property had been acquired by her before 1883. (h) See Re Poole's Estate, 6 Ch. D. 739; Weldon v. De Bathe, 14 Q. B. D. at p. 344; Johnson v. |