tracing back the title under s. 2 of the Act, we arrive at the fact that, about fifty years ago, the property was vested in three coparceners, but it is not known who their ancestor was. It might have been their father, or some other collateral relation, but it cannot be ascertained which. If we are to apply the provisions of sect. 2 of the Act, we must say that these three coparceners are to be deemed purchasers, although it is a clear rule of law that coparceners cannot be except by descent (Littleton, s. 254). This rule of law precludes us from applying the statute to such a case, and makes it plain that sect. 2 never was intended to embrace the case of a descent from or through coparceners. We have supposed that it is shown that the most remote ancestors in certain lands where three females taking as coparceners, and we will now apply the provisions of the statute to such a case with a view to test their applicability. In the first part of sec. 2, we find it provided that in every case the descent shall be traced from the purchaser, and we have seen that a coparcener cannot be such; the statute then proceeds: "to the intent that the pedigree may never be carried back further than the circumstances of the case and the nature of the title shall require, the person last entitled to the land shall, for the purposes of this Act, be considered to have been the purchaser thereof, unless it shall be proved that he inherited the same, in which case the person from whom he inherited the same shall be considered to have been the purchaser thereof, unless it shall be proved that he inherited the same; and in like manner the last [most remote] person from whom the land shall be proved to have been inherited, shall in every case be considered to have been the purchaser, unless it shall be proved that he inherited the same." We suppose, then, that the last [most remote] persons from whom the land is proved to have been inherited are coparceners; that we cannot ascertain from whom they inherited, though the fact that they took as coparceners, and consequently by descent, is clearly shown. And we say that it is impossible to apply the Act to such a case, and call these coparceners purchasers.

The statute says that a party shall be considered a purchaser unless it shall be proved that he inherited. But no proof can possibly be required that coparceners inherited: they must have done So. So that, where a party is shown to be a coparcener, it is quite unnecessary to prove that he inherited, for the law says he must have inherited from some one; and, in default of proving the particular ancestor, it cannot, for any purpose, be assumed that he is a purchaser. Again, it seems to be taken for granted in the Act, that wherever a person is shown to have inherited, it can also be shown from whom he inherited; and it is remarkable that this is so where, as the statute says, "it shall be PROVED;" for "proof" means, of course, by evidence of some fact, and not the result of a rule of law.

It is superfluous to prove that a coparcener inherited. A coparcener inheriting as the result of a rule of law, his immediate ancestor may be unknown (as we have supposed), but, within the proper meaning of sect. 2 of the Act, there cannot be an inheriting without the ancestor being known. We may add that, if the words of the statute are to be taken literally, we are also entitled to use them in a similar manner, and then we will rely upon the words which state (in effect) that a party shall not be considered a purchaser if it can be proved that he inherited the lands. Now A. is shown by a deed to have taken the lands by descent, without naming his ancestor, and it cannot be shown who he was: from whom is the descent to be traced? No doubt the spirit of the Act is, that the party from whom the descent took place should also be proved, but we are dealing with parties who rely on the literal construction of the clause.

We are aware that the statute contains the words "for the purposes of this Act," but we cannot see that it is the intention of the Legislature" for the purposes of the Act," to convert that which the law says must be a descent into an acquisition by purchase. However, we know that many have considered that great weight is due to these words, and that unless they can be cleared away consistently with the other provisions of the Act, the 2nd section must be applied without regard to circumstances to every descent. Without ourselves fully feeling the force of this observation, we think we may say safely that these words offer no insuperable objection to our reasoning, for we say that they apply to the early portion of the same section, where it is enacted that in every case descent shall be traced from the purchaser, i.e., such a purchaser as is to be ascertained in the manner thereafter stated, and such we show has no application to descents from or through coparceners.

We have supposed that the last persons, i.e., the most remote in point of time, from whom the land can be proved to have been inherited, are coparceners; but a similar objection, though perhaps not so conclusively, applies to the "person last entitled to the land," &c. Thus, if we suppose a person to die who was "entitled to the land" in question, and it was shown that she was a coparcener, how can we, even for the purposes of the Act, consider her to have been prima tacie, purchaser.

We do not go so far as to say that the framers of the Act intended expressly to except the case of coparceners, for the probability is that they never thought of the effect which a literal application of the 2nd section might have on descents from or through co-heiresses. But when it is evident that great injustice is the result of applying the new enactment to coparceners, we are justified in endeavouring to lay hold of the smallest matter to show that it has no necessary application to such parties. And we do consider that we have

adduced sufficient reasons for excluding coparceners from the provisions of sect. 2, and consequently that the mode of tracing descents from coparceners is the same now as it was formerly.

We have already taken up more space than we had intended, but we cannot avoid stating that some friends, competent to form an opinion on such a subject, have assured us that they considered the above reasons sufficient to demonstrate the inapplicability of the statute (sect. 2) to coparceners. It must at least be admitted by all that the other arguments put forth, whether pro or con, have failed to satisfy, and we do not see how otherwise than by some such reasoning as the above the question is to be satisfactorily settled, for we really cannot say that the Vice-Chancellor's reasons are such as to entitle them to be considered as putting an end to discussion on the subject.

A FEME COVERT'S SEPARATE ESTATE IN LAND.

WE have before (p. 147) noticed, in an answer to one of the Examination Questions, and therefore, necessarily, in a brief manner, the subject of the mode in which a married woman, who has real property settled to her separate use, can dispose of it, and we have also, in the "Studies" in the present number, mentioned the name of the case which we referred to at p. 147 as having been before the M. R., which case we may here add is Lechmere v. Brotheridge, reported not only in 11 Week. Rep. 814, but also in 9 Jurist, N.S.. 705. In pursuance of our promise we here notice the subject and decisions at length, as being of some importance and of considerable interest :-In Harris v. Mott (14 Beav. 169), a married woman and her husband contracted to sell an estate which had been devised to her in fee for her sole and separate use and benefit. The wife died before the contract was completed, having devised the estate to her husband. The Master of the Rolls, in the absence of authority, and being of opinion that the object of limiting the estate to the wife's separate use was to protect her from her husband, and not to extend her power of disposition, refused to compel the purchaser to take the title without the concurrence of the heir. In the case of Lechmere v. Brotheridge (supra), the same able Judge distinctly decided against the title of the wife's alienees. In that case a testator had devised the Ashchurch estate to trustees, upon trust to permit Mrs. B. to receive the rents and profits during her life for her separate use, and after her decease, upon trust to permit her husband to receive the rents and profits during his life; and he gave the residue of his real and personal cstate to trustees, upon trust for certain persons for their lives, and then upon trust for Mrs. B. and two other persons, in equal shares, and declared that

Mrs. B. and

the share of Mrs. B. should be for her separate use. her husband executed a mortgage of the Ashchurch estate, and of Mrs. B.'s reversionary share in the residuary real and personal estate. Upon a bill filed by the mortgagees for a sale, and to have the concurrence of the trustees in the conveyance of the Ashchurch property, the Master of the Rolls held, that the mortgagees were entitled to sell the life interest of Mrs. B. in the Ashchurch estate, and her reversionary interest in the personalty, and that the deed did not affect her interest in the residuary real estate. His Honour was of opinion, upon principle and on the authorities, that a married woman could, without acknowledgment, alienate a life interest in real estate settled to her separate use. But when the inheritance in real estate is given to a married woman for her separate use-the intention being, as in other cases, only to bar the interest of the husband, and not to extend the power of disposition-there is no power over the fee. His Honour said, "The contention is, that the words 'separate use,' as regards alienation inter vivos have the following, and no other, meaning, viz., 'I give my estate to A. and her heirs for ever, for her separate use; that is, I do so in order to enable her to dispose of it without any acknowledgment under the statute.' I am of opinion that it is not in the power of any testator to avoid the statute by the introduction of any such words, any more than he could have done if he had expressed his meaning distinctly thus:-'I leave Whiteacre to A. and her heirs for ever, and I declare that my intention is that she may dispose of the same without acknowledgment under the statute 3 & 4 Will. IV., c. 74.' The common law, independently of equity, treats the wife as the separate owner of the land, so far as the inheritance in it is concerned." His Honour distinguished Atcheson v. Le Mann (23 Law Tim. Rep. 302), on the ground that the wife there took a testamentary power; and he refused to be governed by Adams v. Gamble (12 Ir. Eq. 102), because the Judges of the court which reversed the decision of the Lord Chancellor were not unanimous. With respect to personalty, no distinction could be made between vested and reversionary interests, because the husband's right as survivor is to be excluded. It will be perceived that the decision in Lechmere v. Brotheridge was founded solely on these two considerations-first, that the only intention of a trust for separate use is to exclude the marital right; secondly, that a testator or settlor cannot, by a mere expression of intention, repeal the Act for the Abolition of Fines and Recoveries, or rather, dispense with it; for the Act is enabling and not restrictive, and cannot be said to be repealed by an authority to do in one way what it merely allows to be done in another way. So strongly did these considerations operate on the judgment of the Master of the Rolls, that he overruled the decision of the majority

S

of the Judges of the Court of Appeal in Ireland. It is, therefore, important to see whether they are well founded on authority or principle. Now, the second ground of decision is one which seems to be inconsistent, not only with the authorities, but with the decision in the very case under consideration; for his Honour there held that Mrs. B. took a life interest in the Ashchurch estate for her separate use, which her husband could not dispose of, and that it passed by her own deed, without the aid of the statute; although, but for the trust for her separate use, the husband would only have taken an interest for the joint lives, and the ulterior interest of the wife could not have been passed otherwise than by an acknowledged deed. In so deciding, the Court only followed the authority of Major v. Lansley (2 Russ. and M. 355), where it was held that a married woman could dispose of a rent charge, given to her in reversion for her life, for her separate use; and of Stead v. Nelson (2 Beav. 245). But it is sufficient to refer to the authorities, which decide that a power over real estate given to a married woman may be exercised without an acknowledged deed, and that in a will, or in a declaration of trust inter vivos, any words which show the intention are sufficient to confer such a power, and to "avoid" or "repeal" the statutory power. The words, "to be at her own disposal," are sometimes inserted and sometimes omitted from these trusts. Is the extent of the wife's power to depend on their presence or absence? Is the other ground of decision-that the sole object of a trust for separate use is to exclude the husband's interest-more tenable? Again, we may refer to the decree of the Master of the Rolls. If that be so, why did he give to the mortgagees the benefit of the interest in the Ashchurch estate which the wife would take if she survived her husband, and which could never have belonged to the husband? On the other hand, we may ask, if the object of a trust for separate use is to exclude the husband and not to protect the wife, is the husband's curtesy excluded by a trust of the inheritance for the wife's separate use, without an express declaration against curtesy as in Bennett v. Davis (2 P. Wms. 316)? But generally, seeing that a wife's disability at common law is absolute, and extends indifferently to realty and to personalty, so that, independently of powers and trusts, her interests in realty were only alienable by the anomalous contrivance of a fine, while her interests in personalty were absolutely inalienable at law and in equity, save so far as the law gave them to her husband, it would follow, if the doctrine of the Master of the Rolls were sound, that a wife's separate estate should be inalienable. It is not necessary, in order to exclude the husband, to confer a power of alienation on the wife; on the contrary, her protection is considered to be incomplete without an express restraint on alienation. But