When personal property, whether in possession or reversion, is settled to the separate use of a married, woman, she may dispose of it and the produce of it as a feme sole to the full extent of her interest, though no particular power be given by the instrument of settlement. But a mere limitation of real estate in fee to the sole and separate use of a married woman, though it enables the wife to dispose of the rents and profits as a feme sole, gives her no power of disposition over the estate beyond what she has by the common law. The gift to the separate use may be accompanied by an express power of appointment by deed or will. The rules of law relating to the formal execution of such powers, and the eases in which defective execution will be supplied, are the same as those which are applicable the execution of powers in general. [Uses.] It is not necessary in all cases of settlement of personal property to the separate use of a married woman, accompanied with a power of appointment, that she should appoiut in terms of the power. Upon this point the following distinctions are established :-1. When there is an express limitation of an estate for life in the fund to the wife, with a power to appoint the principal after her death, the wife can dispose of the capital only by an execution of the power, which may be immediate, if the power authorise an appointment by deed ; but if it require the appointment to be made by will only, then it cannot take effect till after her death. This is equally true whether the limitation in default of appointment be to a stranger, to the next of kin, or to the executors and administrators of the wife. 2. When the wife takes the absolute interest in the property, although it should be limited to her in the form of a power, she may dispose of it under her general power, and without regard to the ceremonies prescribed by the instru ment. Under the second head are included all the cases in which the trust for the wife appears to be of the principal and not of the interest only, and the effect of such a limitation will not be controlled by the introduction of any subsequent provisions as to the mode of payment of the interest or otherwise.
The foregoing observations with respect to the powers of disposition by a married woman of the capital of a fund given generally to her separate use, are equally applicable to the eases where the interest or rent of property only, or income of whatever kind, is the subject of the settlement. If no particular power to dispose be given, she may do so under that general power which, as before mentioned, a married woman possesses over her separate personal estate, and even where a particular mode of disposition is prescribed in the instrument of settle ment, she will not, it seems, be bound to follow it.
If the wife, having a general power of disposition of her separate property, permit her husband during his life to receive and apply her separate estate as his own, a gift from her will in general be presumed, and she will not be allowed at his death to charge his estate with the amount so received.
If the wife, having power to dispose absolutely of her separate pro perty, die without making any disposition of it, the quality of separate property, it seems, ceases at her death, and the surviving husband is entitled to the fund. If the property consist either of chattels real or personal in possession, he will be entitled to them without administra tion; hut if of chosen in action, he must take out administration to her estate.
In some cases where a married woman, having an absolute power of appointment over a fund, has executed it, a bill has been filed, in order that the consent in court of the wife to the disposition might be taken ; and this practice occasioned a doubt whether it was not necessary that the wife's consent in court should be obtained, especially in cases where the appointment was in favour of the husband. But unquestionably the appointment is valid without any such consent, and the presence of the wife in court, whether the appointment be to her husband or to strangers, is entirely unnecessary.
It was at one time doubted whether the wife a general power of alienation of her separate estate could be restrained by tLe expressed intention of the settler, such restraint being thought repugnant to the interest which she had in the property ; but the power of the settler to impose it is now established by undoubted authority. The intention
to impose this restraint will not however be inferred m the absence of express words to that effect. If the gift be to a woman unmarried at the time when it takes effect, a clause against anticipation, that is, a clause which prohibits or limits the power of alienation, though inserted expressly in contemplation of a future marriage, is inoperative, as it would be in the case of a man, to prevent alienation while she continues Role ; and if the gift be to a woman married at the time, the property becomes absolutely disposable by her upon the expiration of the coverture. It has also been much questioned whether, in the cases supposed, the property, if not alienated by the woman while discovert, would be subject to the settlement to her separate use and to the prohibition against anticipation during any future coverture or covertures. The question has been decided in the affirmative, and is well settled. (Tullet r. Armstrong, 4 M. & C., 390.) rs:t. has been stated that if a married woman has property settled to Lsr separate use, without any restraint on alienation, she may dispose of it as a feme sole, either with or without consideration ; but it seems to be now determined (though there are conflicting decisions on the point among the older authorities), that, in order to affect her separate estate, she must show an intention to charge it, and that it is not liable to answer generally the demands of creditors. It is not very clearly determined in what cases and from what circumstances the intention to charge the separate estate will be presumed. It seems to be established that the separate estate of a married woman is liable to debts for which she has given a written security or acknowledgment, such as a bond or promissory note. The extent to which a woman's separate property may be subjected to the demands of creditors claiming under parol agreements has not been determined. If tho separate property consists of land, it will of course not be liable ; because, by the Statute of Frauds (29 Car. II., § 3), no agreements can affect lands unless they are in writing and signed by the party to be charged ; but if of personalty, it is probable that an express pare' agreement that her separate property should be charged with the pay ment of a debt, or even perhaps a tacit agreement to be implied from the circumstances, as when the wife is living separate from her husband, would be held binding on the property.
It has sometimes been considered that upon the principle of the general liability of the separate property to debts, after the death of the wife, in the administration of it among creditors, all ought to come in pari passe, as in other eases of the administration of equitable assets; but the later authorities seem to show that the separate pro perty of a feme covert is not subject at her death to any such general liability, and from this it would appear to follow that the creditors whose debts are charged upon it ought, as specific incumbrancers, to be paid according to their priorities.
The wife, in equity, as at law, can incur no personal responsibility by her engagements as to her separate property, and is liable only to the extent of that property in the hands of her trustees; but in suits respecting her separate estate she is treated in all respects as a feme sole, and personally answerable for contempt in not obeying the orders of the court. In such suits, if she is a plaintiff, she must sue by her next friend, and not with her husband, who however should be made a defendant to the wife's bill : and if she is a defendant, she must be served personally with process in the cause. She must answer by her next friend separately from her husband, who ought however to be made a party to the bill.
The savings and earnings of a wife may become her separate property at law, and she may deal therewith as a feme sole, either where an order has been made to that effect under the statute 20 & 21 Vict. c. 85, or a judicial separation has been obtained by the wife.
(Bright, On Husband and Wife ; and Lord St. Leonards, On Powers.) SEPARATION A MENSA ET THOIIO. [DIVORCE.]