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is privately examined, whether she acts freely; and without suck examination the act is invalid. But a covenant to convey is made without any examination; and to hold the wife bound by it would be contrary to first principles on this subject, for the wife is deemed incompetent to make a contract, unless it be in her character of trustee, and when she does not possess any beneficial interest in her own right. The chancery jurisdiction is applied to the cases

of property settled to the separate use of the wife by deed 169 or will, with a power of appointment, and rendered * sub

ject to her disposition. On the other hand, the husband has frequently been compelled, by decree, to fulfil his covenant, that his wife should levy a fine of her real estate, or else to suffer by imprisonment the penalty of his default. (a)

But Lord Cowper once refused to compel the husband to procure his wife to levy a fine, as being unreasonable coercion, since it was not in the power of the husband duly to compel his wife to alien her estate. (6) In other and later cases, the courts have declined to act upon such a doctrine ;(c) and Lord Ch. B. Gilbert questioned its soundness. (d) In Emery v. Wase, (e) Lord Eldon observed, that if the question was perfectly res integra, he should hesitate long before he undertook to compel the husband, by decree, to procure his wife's conveyance; for the policy of the law was, that the wife was not to part with her property, unless by her

(u) Griffin v. Taylor, Tothill, 106. Barrington v. Horn, 2 Eq. Cas. Abr. 17, pl. 7. Sir Joseph Jekyll, in Hall v. Hardy, 3 P. Wms. 187. Withers v. Pinchard, cited in 7 Vesey, 475. Morris v. Stephenson, 7 Vesey, 474.

(6) Ortread v. Round, 4 Viner's Abr. 203, pl. 4.
(c) Prec. in Ch. 76. Amb. 495.
(d) Gilbert's Lex Prætoria, 245.
(e) 8 Vesey, 505, 514.

same where the deed is a joint one of herself and her husband, of property he holds in her right. Carpenter v. Schermerhorn, 2 Barb. Ch. 314.

3 If the husband joins in an executory contract, though the deed is to be given to the wife, and the payment to be made by her property, he inay be compelled to a specific performance. Johnston v. Jones, 12 B. Mon. (Ky.) 326.

As a general rule, the court will not compel the husband, who has agreed to sell lands, to procure his wife's execution of the deed. Hulmes v. Thorpe, 1 Halst. Ch. (N. J.) 415.

Where an antenuptial contract gave the wife power to dispose of her real estate, it was held that she could make a binding contract to convey. Van Allen v. Humphrey, 15 Barb. (N. Y.) 555.

1 Hulmes v. Thorpe, 1 Halst. Ch. (N. J.) 415.

own spontaneous will. Lastly, in Martin v. Mitchell, (f) where the husband and wife had entered into an agreement to sell her estate, the master of the rolls held, that the agreement was void as to the wife, for a married woman had no disposing power, and a court of equity could not give any relief against her on such a contract. She could not bind herself by contract, except in the

. execution of a power, and in the mode prescribed ; nor would the court compel the husband to procure his wife to join in the conveyance. Such, said the master of the rolls, is not now the law.

* The English courts of equity have, until recently, * 170 thrown a further and very important protection over the property settled on the wife on her marriage, for her separate use, with a clause against a power to sell or assign by anticipation. It was declared in Ritchie v. Broadben, (a) that a bill would not be sustained, to transfer to the husband property so settled in trust, even though the wife was a party to the bill, and ready to consent, on examination, to part with the funds. The opinion of the Lord Ch. Baron was grounded on the effect to be given to the clause against anticipation, and does not apply to ordinary cases, or affect the general power of the wife, where no such check is inserted in the settlement. A clause in a gift or deed of settlement upon the wife, against anticipation, is held to be an obligatory and valid mode of preventing her from depriving herself, through marital or other influence, of the benefit of her property. But that restraint on anticipation ceases on the death of the husband, for the reason and expediency of the restraint have then also ceased.(6)

(f) 2 Jac. & Walk. 413. Sir James Mansfield, in Davis v. Jones, 4 Bos. & Pull. (1 N. S.) 269. Brick v. Whelley, cited in Howell v. George, 1 Mad. 7, note, S. P.

(a) 2 Jac. & Walk. 456.

(6) Barton v. Briscoe, 1 Jacob, 603. The history of the fluctuations of the English chancery decisions on this subject is curious. Thus, the English rule formerly was, that in cases of property in trust for a married woman, to be paid into her own hands, upon her own receipts, the wife might still dispose of that interest, and her assignee would take it. Hulme v. Tenant, 1 Bro. C. C. 16. Pybus v. Smith, 3 Id. 340. 1 Vesey. Jr., 189, S. C. But in Miss Watson's case, Lord Thurlow altered his opinion, and held that a proviso in a settlement that the wife should not dispose of her interest by any mode of anticipation, would restrain her; and Lord Alvanley, in Sockett v. Wray, 4 Bro. C. C. 483, held it to be a valid clause; and so it has been since considered. Lord Eldon, in Brandon v. Robinson, 18 Vesey, 434, and in Jackson v. Hobhouse, 2 Meriv. 487. Vice Ch. Shadwell said, that when he was in the habit of drawing convey

(4.) Power to appoint by will. A wife cannot devise her lands by will, for she is excepted out

v.

ances, the proviso that he inserted against the power of anticipation was, that the receipts of the lady under her own hand, to be given from time to time for accruing rents or dividends, should be, and that no other receipt should be, sufficient discharges to the trustees. Brown v. Bamford, 11 Sim. 127. This case was reversed on appeal, by Lord Lyndhurst, on the ground that a general limitation in default of appointment did not enable the wife to anticipate, and it did not depend on the form of the receipt clause. Now, again, such a clause against anticipation, inserted in a will in favor of an unmarried female, and without any connection with coverture, is held to be not valid. See Woodmeston v. Walker, 2 Russ. & My. 197. Jones r. Salter, Ibid. 208. Brown v. Pocock, Ibid. 210. Newton v. Reid, 4 Sim. 141; and see supra, p. 165, note a. The Supreme Court of North Carolina, sitting in equity, has followed the spirit of these latter decisions, and held that though real and personal property be conveyed in trust to apply the proceeds to A for life, with a clause against a sale or anticipation, but without any disposition over in the case of such sale or anticipation, yet if the cestui que trust be a male or single, the restraint on his alienation or assignment was inoperative and void. Dick v. Pitchford, 1 Dev. & Bat. Eq. 480. The disposition over would seem to be material in the construction of the instrument. Lord Eldon, in Brandon v. Robinson, 18 Vesey, 429, observed, that property might be limited to a man until he became a bankrupt, and then over. But that if property be given to a man for life, the donor cannot take away the incidents to a life estate, or add a valid clause that he should not alien it. It cannot be preserved from creditors, unless given to some one else in trust. But we have again, in the English courts of equity, a recurrence to the old and juster doctrine ; for it was held in Tullett v. Armstrong, 1 Beavan, 1, 21, that a devise and bequest in trust for an unmarried woman, to her separate use, and with an inability to alien, was effectual on any subsequent marriage, both as to the separate use and the restraint upon anticipation, though, if unaccompanied by any restraint, it was subject to her power of alienation. And afterwards, in Dixon v. Dixon, 1 Beavan, 40, it was held, that a settlement on the first marriage of a woman, in trust for her separate use, exclusive of any husband, the trust to her separate use attached upon a remarriage.

The New York Revised Statutes, vol. i. p. 728, sec. 55, (as amended in 1830,) and 730, sec. 63 and 65, have thrown an effectual protection over the interests of persons not well able to protect themselves, by declaring, (1.) that an express trust may be created to receive the rents and profits of land, and apply them to the use of any person, during the life of such person, or for any shorter term ; (2) by declaring, that no person beneficially interested in a trust for the receipt and profits of lands can assign, or in any manner dispose of such interest; and, (3.) that where the trust shall be expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees, in contravention of the trust, shall be absolutely void. Under these provisions, a father may create a trust in favor of a daughter, and the interest would be unalienable even with the consent of the husband. Nothing can impair such a trust during the life of the cestui que trust; and the recent English decisions on this subject are wholly inapplicable, and not law in New York.

1 See Ross's Trust, 2 E. L. & Eq. 148. Baker v. Bradley, 35 E. L. & Eq. 449.

3 See Leggett v. Leggett, 2 Comst. 297. L'Amoreux v. Van Rensselaer, 1 Barb. Ch. 34. Rogers v. Ludlow, 3 Sandf. Ch. 104. Noyes v. Blakeman, 3 Sandf. (N.Y.) 531. S. C. 2 Seld. 567. Cruger v. Jones, 18 Barb. (N. Y.) 467.

of the statute of wills; 3 nor can she make a testament of chattels, except it be of those which she holds en autre droit, or which are settled on her as her separate property, without the license of her husband. He may covenant to that effect, before or after marriage, and the court of chancery will enforce the performance of that covenant. It is not strictly a will, but in the nature of an appointment, which the husband is bound by his covenant to allow. (c) 4 The wife may dispose by will, or by act in her lifetime, of her separate personal estate, settled upon her, or held in trust for her, or the savings of her real estate given to her separate use; and this she may do without the intervention of trustees, for the * power is incident to such an ownership. (a) It * 171 has been held, even at law, in this country, (b) that the wife may, by the permission of her husband, make a disposition in the nature of a will, of personal property, placed in the hands of trustees, for her separate use, by her husband, or by a stranger, and either before or after marriage. If a feme sole makes a will, and afterwards marries, the subsequent marriage is a revocation in law of the will. The reason given is, that it is not in the nature of a will to be absolute, and the marriage is deemed equivalent to a countermand of the will, and especially as it is not in the power of the wife, after marriage, either to revoke or continue the will, inasmuch as she is presumed to be under the restraint of her husband. (c) But it is equally clear, that where an estate is limited to uses, and a power is given to a feme sole, before marriage, to declare those uses, such limitation of uses may take effect; and though a married woman cannot be said strictly to make a will, yet she may devise, by way of execution of a power,

(c) Pridgeon v. Pridgeon, 1 Ch. Cas. 117. Rex v. Bettesworth, Str. Rep. 891. Newlin v. Freeman, 1 Ired. (N. C.) 514.

(a) Peacock v. Monk, 2 Vesey, 190. Rich v. Cockell, 6 Vesey, 369. West v. West, 3 Rand. 373. Holman v. Perry, 4 Metcalf, 492.

(6) Emery v. Neighbour, 2 Halst. (N. J.) 142. (c) Forse & Hembling's case, 4 Co. 60, b. 2 P. Wms. 624. 2 Term, 695, S. P.

3 In New York, under the Act of April 11, 1849, a married woman may devise her lands by will. Van West v. Benedict, 1 Bradf. (N. Y.) 114.

- It has been held in New York, that statute provisions, fixing the age requisite to give validity to a will, do not affect the right of a feme covert to execute the power of appointment. Strong v. Wilkin, 1 Barb. Ch. 9.

1 Cutter v. Butler, 5 Foster, 343.

which is rather an appointment than a will; and whoever takes under the will, takes by virtue of the execution of the pow

er. (d) Thus, in the case of Bradish v. Gibbs, (e) it was * 172 * held that a feme covert might execute by will, in favor of

her husband, a power, given or reserved to her while sole, over her real estate. In that case, the wife before marriage entered into an agreement with her intended husband, that she should have power, during the coverture, to dispose of her real estate by will, and she afterwards, during coverture, devised the whole of her estate to her husband; and this was considered a valid disposition of her estate in equity, and binding on her heirs at law. The point in that case was, .whether a mere agreement entered into before marriage between the wife and her intended husband, that she should have power to dispose of her real estate during coverture, would enable her to do it, without previously to the marriage vesting the real estate in trustees, in trust for such persons as she should by deed or will appoint; and it was ruled not to be necessary; and the doctrine has received the approba

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(d) She may, under a power of appointment over personalty in a marriage settlement, appoint by deed in favor of her husband ; and if it appear that she did it freely and understandingly, equity will enforce it. Chesslyn v. Smith, 8 Vesey, 183. Whitall v. Clark, 2 Edw. Ch. 149.

(e) 3 Johns. Ch. 523. By the New York Revised Statutes, vol. i. pp. 732–737, sec. 80, 87, a general and beneficial power may be granted to a married woman, to dispose during the marriage, and without the concurrence of her husband, of lands conveyed or devised to her in fee; or a special power of the like kind, in respect to any estate less than a fee, belonging to her, in the lands to which the power relates. She may, under the power, execute a mortgage; and, generally, she may execute a power during coverture, by grant or devise, according to the terms of it; and if she executes a power by grant, the concurrence of her husband as a party is not requisite, but she must acknowledge, on a private examination, the execution of the power. And if a married woman be entitled to an estate in fee, she may, by virtue of a power, create any estate which she might create if unmarried; but she cannot exercise any power during her infancy, nor if, by the terms of the power, its execution by her during marriage may be expressly or impliedly prohibited. Ibid. sec. 90, 110, 111, 17, 130.8

? Such a power of appointment is well executed, though it be exercised by means of an instrument which purports to be a will; and though it also assume to dispose of property not embraced within the power. Heath v. Withington, 6 Cush. 497. In the matter of Stewart, 11 Paige, 398. In this case, the power was exercised by a resident of Ohio over lands situated in New York.

An ante nuptial contract, made in one country, may operate as a grant of real estate situatel in another. De Barante v. Gott, 6 Barb. (N. Y.) 492.

3 Wright v. Tallmadge, 15 N. Y. (1 Smith,) 307.

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