Wife's leaseholds.

Execution of powers by-married women.

Fines and Recoveries Act, 1833.

(i) Williams on Seisin, 128.

(k) 1 Scriv. Cop. 262, 3rd ed. An exception was admitted in the case of an equitable estate tail in copyholds which might be barred by a surrender, in cases where a legal estate tail might be so barred; Radford v. Wilson, 3 Atk. 815; 1 Scriv. Cop. 77; 1 Wat. Cop. 239, 4th ed.

(l) See 1 Prest. Conv. 160; 1 Scriv. Cop. 87, 3rd ed.; Wat. Cop. i. 64, n., 181, n., ii. 42, n., 4 th ed.

(m) Co. Litt. 46b, 351a; 1 Hop. Husb. & Wife, 173, 177, 2nd ed.; Wms. Real Prop. 510, 19th ed.

(n) Sug. Pow. 153 - 168, 8th ed.; Doe d. Blomfield v. Eyre, 3 C. B. 557, 578, 5 C. B. 713, 741, 748; Wood v. Wood, L. R. 10 Eq. 220; Wms. Real Prop. 302, 13th ed.; 377, 19th ed.

(o) Stat. 3 & 4 Will. IV. c 74, s. 2.

(p) Sect. 77.

(q) Before the year 1883, the acknowledgment was required to be made before a judge of the superior Courts at Westminster, or of any County Court, or a Master in Chancery or two commissioners; and a certificate of the taking of the acknowledgment was required to be duly signed and filed, or else it would have been of no effect. But deeds executed by married women after the year 1882 may be acknowledged before one commissioner only; and a certificate of the acknowledgment of such deeds is not required. This distinction must be borne in mind in investigating title. See above, pp. 126, 136; stats. 3 & 4 Will. IV. c. 74, s. 79; 51 & 52 Vict. c. 43, s. 184, replacing 19 & 20 Vict. c. 108, s. 73; 45 & 46 Vict. c. 39, s. 7; Jolly v. Handcock, 7 Ex. 820.

Wife's copyholds.

Including hereditaments of any tenure, whether corporeal or incorporeal, and any undivided share thereof; stat. 3 & 4 Will. IV. c. 74, s. 1.

(s) Including any interest, charge, lien, or incumbrance in, upon, or affecting any hereditaments, or any money subject to be invested in the purchase of hereditaments, either at law or in equity; ibid.

(t) Above, p. 816.

(u) Stat. 3 & 4 Will. IV. c. 74, s. 77.

(x) Williams on Seisin, 128; Wms. Real Prop. 479, 19th ed.

(y) Carter v. Carter, 1896, 1 Ch. 62.

Under the Fines and Recoveries Act(h), if a husband shall, in consequence of being a lunatic, idiot or of unsound mind, whether so found by inquisition or not, or shall from any other cause be incapable of executing a deed, or of making a surrender of copyholds, or if his residence shall not be known, or he shall be in prison, or shall be living apart from his wife (i), either by mutual consent or by sentence of divorce, or in consequence of his being transported beyond the seas, or from any other cause whatsoever, an order may be obtained, on the wife's application formerly to the Court of Common Pleas and now to the King's Bench Division (k) of the High Court, dispensing with the husband's concurrence in any case in which his concurrence is required by that Act or otherwise; and all acts, deeds or surrenders to be done, executed, or made by the wife, in pursuance of such order, in regard to lands (7) of any tenure, or in regard to money subject to be invested in the purchase of lands, shall be done, executed, or made by her in the same manner as if she were a feme sole, and when done, executed, or made by her shall (but without prejudice to the rights of the husband as then existing independently of the Act) be as good and valid as they would have been if the husband had concurred. It appears that, as a rule, such an order will only be made to give effect to some particular sale or other transaction agreed upon (m). Where a married woman has obtained an order of this kind, there is no necessity for her to acknowledge the deed as above provided (n): but her conveyance in pursuance of such order will not operate to assure her husband's interest in the lands during the continuance of the coverture, or, it seems, his estate by the curtesy; it will only pass her own interest therein (o).

Order dispensing with the husband's concurrence in case of his lunacy, etc.

(z) Above, p. 816.

(a) Williams on Seisin, 128; Wins. Real Prop. 478, 479, 19th ed.

(b) Stat. 3 & 4 Will. IV. c. 74, s. 90, also enacting that all such surrenders theretofore made should be valid; see above, p. 817.

(c) Briggs v. Chamberlain, 11 Hare, 69; Tuer v. Turner, 20 Beav. 560; Re Jakeman's Trusts, 23 Ch. D. 344. If, however, the lands so held had been actually sold, the wife no longer had an interest in land within the meaning of the Act, and could not avail herself of the disposing power thereby conferred; Be Algeo, I. R. 2 Eq. 485; Miller v. Collins, 1896, 1 Ch. 573, 577, 578.

(d) Williams v. Cooke, 4 Giff. 343.

(e) Re Durrant and Stoner, 18 Ch. D. 106; see above, p. 296.

(/) Miller v. Collins, 1896, 1 Ch. 573, diss. Kay, L. J., overruling Be Newton's Trusts, 23 Ch. D. 181.

(g) Above, p. 817.

(A) Stat. 3 & 4 Will. IV. c. 74, s. 91. See notes thereto in Carson's R. P. Statutes, 327.

(i) See Expte. Robinson, L. R. 4 C. P. 205; Re Caine, 10 Q. B. D. 284.

(k) Re Giles, 1894, W. N. 73, 70 L. T. 757.

(I) See above, p. 818, n. (r).

(m) Re Graham, 19 C. B. N. S.

370; see Re Hart, 1882, W. N. 36; above, n. (k).

(n) Goodchild v. Dougal, 3 Ch. D. G50.

(o) Fowke v. Draycott, 29 Ch. D. 996.

By the Real Property Act, 1845 (p), a married woman was enabled by deed executed with her husband's concurrence and acknowledged by her as aforesaid to disclaim any estate or interest in any hereditaments.

Disclaimer by married woman.

What is written above (q) concerning the alienation of married women's equitable estates or interests in land applies only to property not settled for their separate use (r). If any estate or interest in land were settled on trust for the separate use of a married woman, she could dispose of her equitable interest in such property as effectually as if she were a single woman, both by act inter vivos and by will (s), and not only by conveyance or contract dealing specifically therewith, but also in consequence of her general engagements entered into with respect to the same (t). Where any land so settled was not vested in trustees but was limited to the wife directly for her separate use, her husband would take such estate or interest therein as the common law allowed him, but in equity he would be a trustee thereof for his wife's benefit; and in such case, although the wife alone could dispose of her equitable interest in the property, the legal estate therein could only be effectually assured by deed executed with the husband's concurrence and duly acknowledged by her, or by other means appropriate at law to the nature of the estate settled (u). If, however, property were settled on trust for the separate use of a married woman, with a proviso that she should have no power to anticipate the income thereof, she was incapable of alienating her interest therein except by will, so long as she was under any coverture (x); and it could not be affected by her general engagements (y). If a married woman were entitled to an equitable estate tail in any lands as her separate estate, and desired to bar the entail, it was required by the Fines and Recoveries Act (z) that her husband should concur in the disentailing deed and that she should duly acknowledge the same. If she were so entitled subject to a restraint on anticipation, that did not prevent her from so barring the entail. It appears, however, that the restraint was not thereby defeated, but continued to affect the estate in fee simple, into which her estate tail was enlarged (a). Formerly, the Court had no power to interfere by its order with the effect of a restraint upon alienation attached to any property settled for the separate use of a married woman, however beneficial to her such an interference might have been (b). But by the Conveyancing Act of 1881 (c), notwithstanding that a married woman is restrained from anticipation, the Court may, if it thinks fit, where it appears to the Court to be for her benefit, by judgment or order, with her consent, bind her interest in any property (d).