Restraint on alienation.

Sale without notice of a restraint on anticipation.

The Act confers on married women a special, not a general, capacity to hold and dispose of property.

Effect of wives' wills made during coverture.

Entail in any lands to which she is entitled for an estate tail as her separate property, without her husband's concurrence in or her own acknowledgment of the disentailing deed; cf. above, p. 822.

(m) Bates v. Kesterton, 1896, 1 Ch. 159; Re Lumley, 1896, 2 Ch. 690; above, p. 821.

(n) See above, pp. 172, 173, 266, 427, 496.

(o) Re Price, 28 Ch. D. 709;

Re Cuno, 43 Ch. D. 12; following the law laid down in Willock v. Noble, L. R. 7 H. L. 580, with respect to dispositions by will of a married woman's equitable separate estate; and see Re Bowen, 1892, 2 Ch. 291.

(p) Stat. 56 & 57 Vict. c. 63, s. 3, passed 5th Dec. 1893.

(q) Re Wylie, 1895, 2 Ch. 116, deciding that the Act applies to wills made before its passing.

Rule, that husband and wife are one person not repealed.

Property-given to a wife on trust.

(r) See Wms. Real Prop. 299, 304, 19th ed.

(s) Re March, 27 Ch. D. 166; Re Jupp, 39 Ch. D. 148, 152. The husband and wife take the share so given to them, as they take any other property given to them since the Act without words of severance, as joint tenants and not, in the case of freeholds or copyholds, by entireties; Re March, ubi sup.; Thornley v. Thornley, 1893, 2 Ch. 229; see Wms. Real Prop. 305, 313, 19th ed.

(t) Re Harkness awl Allsopp's Contract, 1896, 2 Ch. 358.

(«) The disposition of any hereditaments, which were limited to or devolved upon a married woman in trust before the year 1883, is of course governed by the old law existing independently of that Act; see above, p. 829.

(x) By the Married Women's Property Act, 1882, stat. 45 & 46 Vict. c. 75, ss. 1 (2), 18, 24, a married woman is enabled to accept any trust or the office of executrix or administratrix without her husband's consent, and is empowered to transfer as if she were a feme sole any stock, shares or debentures, to which she is entitled as trustee, executrix or administratrix. But she is not thereby expressly authorised so to dispose of any other trust property.

(y) See above, p. 828.

Married woman mortgagee.

Wife trustee-mortgages.

(2) Above, p. 817.

(a) Above, pp. 818, 819.

(b) Above, pp. 817, 819.

(c) Re Brooke and Fremiti's Contract, 1898, 1 Ch. 647.

(d) He Howgate and Osborn's Contract, 1902, 1 Ch. 451; see above, p. 828.

(e) See above, pp. 828, 832, n. (x).

(/) Above, p. 828.

(g) Re West and Hardy's Con

Under the Married Women's Property Acts, 1882 and 1893 (i), married women now enjoy a special and very peculiar capacity of making legal contracts in respect of their separate property to which they are or may become entitled without restraint on anticipation; and any obligation so undertaken by them may be enforced after the determination of the coverture against any property to which they may then be entitled, except only that which belonged to them during coverture as their separate property subject to a restraint on alienation and the income thereof. But apart from this privilege they have no general power to make themselves liable upon any contract (k). The rule of the common law was that a married woman was incapable of binding herself by any act or agreement; so that any obligation which she purported to undertake by contract was absolutely void as against her (I). But although a wife could incur no liability, she might acquire a right in the nature of a chose in action under a contract made by her during coverture. She could not, however, sue in respect of any such contract during the coverture, except with the concurrence of her husband in joining her name with his own; whilst he could sue thereon in his own name without her, but she might sue alone to get the benefit of such a contract after the coverture had determined (m). Apart from the powers conferred by the Married Women's Property Acts, 1882 and 1893, the general incapacity of a married woman to bind herself by a contract is subject to certain exceptions; and it appears that a wife can enter into, or have entered into, a valid contract in the following instances: Married women's contracts tract, 1904, 1 Ch. 145; see above, pp. 250 sq.

(h) Above, pp. 250 sq., 496.

(i) Stats. 45 & 46 Vict. c. 75, ss. 1 (2), 19; 56 & 57 Vict. c. 63, 8. 1.

1. In the case of the wife of the king (n).

2. If her husband be civilly dead, or be undergoing sentence of transportation or penal servitude (o).

3. By the custom of the city of London, in respect of any trade carried on by her within the city separately from her husband (p).

At common law.

Exceptions to wives' incapacity to contract.

1. Wife of the king.

2. Husband civilly dead.

3. Trading

(k) Scott v. Morley, 20 Q. B. D. 120; Re Gardiner, ib. 249; Stog-don v. Lee, 1891, 1 Q. B. 661; Felton v. Harrison, 1891, 2 Q. B. 422; Re Hewett, 1895, 1 Q. B. 328; Softlaw v. Welch, 1899, 2 Q. B. 419; Burnett v. Howard, 1900, 2 Q. B. 784; Brown v. Dimbleby, 1904, 1 K. B. 28.

(/) 1 Black. Coram. 444; Emery v. Wase, 5 Ves. 846; Sug. V. & P. 206; Nicholl v. Jones, L. E. 3 Eq. 696; Cahill v. Cahill, 8 App. Cas. 420; and see Atwood v.

Chichester, 3 Q. B. D. 722; Expte. Jones, 12 Ch. D. 484.

(m) Philliskirk v. Flack well, 2 M. & S. 393; Wills v. Nurse, 1 A. & E. 65; Dalton v. Midland Ry. Co., 13 C. B. 474; Be Wahl v. Braune, 1 H. & N. 178; 1 Rop. Husb. & Wife, 213, 2nd ed.; Wms. Pers. Prop. 471, 472, 15th ed.

(n) Co. Litt. 133a.

(o) 1 Black. Comm. 431; Carrol v. Blencow, 4 Esp. 27; Expte. Franks, 7 Bing. 762.

4. If she be the wife of an alien, who has never been in England, and she purport to contract as a feme sole (q).

5. During the continuance of a judicial separation (r).