Baggett v Meux
| Jurisdiction | England & Wales |
| Judgment Date | 19 March 1846 |
| Date | 19 March 1846 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 771
HIGH COURT OF CHANCERY
S. C. 1 Coll. 138; 13 L. J. Ch. 228; 8 Jur. 391; 15 L. J. Ch. 262; 10 Jur. 213. See In re Ellis's Trusts, 1874, L. R. 17 Eq. 412; Thomas v. Price, 1877, 46 L. J. Ch. 762; In re Brown, 1884, 27 Ch. D. 415; In re Grey's Settlements, 1887, 34 Ch. D. 714; In re Hutchings to Burt, 1887, 58 L. T. 7. Approved, Stogden v. Lee [1891], 1 Q. B. 661.
baggett v. meux. March 19, 1846. [S. C. 1 Coll. 138 ; 13 L. J. Ch. 228 ; 8 Jur. 391 ; 15 L. J. Ch. 262 ; 10 Jur. 213. See In re Ellin's Trusts, 1874, L. R. 17 Eq. 412 ; Thotnas v. Price, 1877, 46 L. J. Ch. 762 ; In re Bown, 1884, 27 Ch. D. 415 ; In re Oreifs Settlements, 1887, 34 Ch. D. 714; In re Hutchings to Burt, 1887, 58 L. T. 7. Approved, Stogilen v. Lee [18911, 1 Q. B. 661.] A Court of Equity will give effect during coverture to a clause in restraint of alienation, annexed [to} a gift to a married woman for her separate use, whether the subject of the gift be real or personal estate, or whether it be in fee or only for life. On the hearing of an appeal in this case from the decree of Vice-Chancellor Knight Bruce (see 1 Coll. 138, where a detailed statement of the case will be found), the argument turned chiefly on the question, whether a clause in restraint of alienation, annexed to a legal devise, in fee, of real estate to a married woman for her separate use, was effectual during the coverture. Mr. Russell and Mr. Freeling, for the Appellant, in support of the negative, attempted to distinguish the case of real from that of personal estate, on the ground that both the property of a married woman in the latter, and her power of disposition over it, being creatures of equity, might, by the same jurisdiction, be modified and restricted to any extent; but that in the case of real estate, which a married woman had power to dispose of by the common law, that power could not be controlled [628] 772 FOSTER V. SMITH 1 PH. 829. by the terms of the gift, any more than in the case of a male. They also observed that the Irish Fines and Recoveries Act (4 & 5 W. 4, c. 92, s. 79) contained an express proviso that the clauses relating to conveyances by married women should not apply to cases in which there was, by the terms of the gift, a restraint on alienation ; whereas there was no such proviso in the English Act. In answer to which, the lord chancellor observed, that the Irish Act was subsequent in date to the other, and that he took .that clause to be an expression by the Legislature of what was meant by the former Act. Mr. Swanston and Mr. Busk, contra. the lord chancellor [Lyndhurst], after disposing of the other points of the case in a few words, said, with respect to this :-After the case of Tuliett v. Annstmny (4 My, & Cr. 377), there can be no doubt about the doctrine of this Court respecting the property given to the separate use of a married woman : and it is clear that that doctrine applies as much to an estate in fee as to a life estate. The object of the doctrine was to give a married woman the enjoyment of property independent of her husband ; but to secure that object it was absolutely necessary to restrain her during coverture from alienation. The reasoning evidently applies to a fee as much as to a, life estate, to real property as much as to personal. The power of a married woman, independent of the trust for separate use, may be different in real estate from what it is in personal: but a Court of Equity having created in both a new species of estate, may in both cases modify the incidents of that estate. Appeal dismissed, with costs.
English Reports Citation: 63 E.R. 355
HIGH COURT OF CHANCERY
S. C. affirmed, 1 Ph. 627; 41 E. R. 771 (with note, to which add Hood-Barrs v. Cathcart [1894], 2 Q. B. 570; In re Wheeler's Settlement Trusts [1899], 2 Ch. 721.
[138] baggett v. meux. March 19, 29, 1844. [S. C. affirmed, 1 Ph. 627; 41 E. R. 771 (with note, to which add Hood-Barrs v. Cathcart [1894], 2 Q. B. 570; In re Wheeler's Settlement Trusts [1899], 2 Ch.- 721).] A real estate may be devised to a married woman in fee-simple for her separate use, yet in such a manner as to disable her during the coverture from making any sale, mortgage, charge or incumbrance to take effect against it during her life or during her coverture. Hence, where A. devised a real estate to his daughter B., a married woman, in fee, but with a declaration that she should not sell, charge, mortgage or encumber it, followed by another declaration that she should take it for her own sole and separate use and benefit and disposal, and have the sole management thereof, independent of her husband and free from his debts, &c.: Held, that the prohibitory clause was not void, inasmuch as it must be taken in connexion as well with the succeeding as the preceding words; and therefore that a security, by way of equitable mortgage, executed by the husband and wife to a party who had notice of the wife's title under the will, was void as against the wife. 356. BAOGETT V. MEUX 1 COLL. 139, Feme covert is entitled under a will to an estate in fee-simple,"subject to an outstanding lease for thirty-one years from June 1816, at a rent of £60 per annum, and subject to a clause in the will prohibiting her from mortgaging or encumbering the property during coverture. In June 1840 the husband takes an assignment to himself of the lease of 1816, and the husband and wife execute a new lease to E,, as a trustee for the husband, for the term of thirty-one years, at the same rent as before. In this lease no notice is taken of the wife's separate estate, and E. enters into no covenants. In 1841 the property lets at £90 per annum. The new lease is an incumbrance within the meaning of the prohibitory clause contained in the will. John Warren, by his will, dated the 1st September 1828, after devising certain real estates and bequeathing certain legacies, devised as follows:-"I give and devise unto my daughter, Alice Baggett, the wife of William Baggett the younger, all that my freehold estate situate and being on the west side of Great Windmill Street, in the parish of St. James, Westminster, with the appurtenances, consisting of the premises called the Bull Yard, in the occupation of Mr. Robert Newman, and three houses in Great Windmill Street aforesaid, being No. 42, in the occupation of Brodie, Esq., No. 43, known by the name or sign of The Bull public-house, and No. 44, to hold the same unto my said daughter, Alice Baggett, and her heirs for ever." The testator then, after bequeathing several pecuniary legacies, gave all the residue and remainder of his estate and effects whatsoever and wheresoever to William Baggett the elder, and George Bather, their heirs, executors and administrators, upon trust to make sale and dispose of such parts thereof as should not consist of money, and after paying and discharging all his just debts and funeral and testamentary-expenses and legacies, should transfer, pay and divide the surplus of such residue unto and among his five children (including Alice Baggett) in equal shares, the shares of the daughters to be paid into [139] their own proper hands respectively, for their own sole and separate use respectively, their receipts to be sufficient discharges to his executors; provided that, if either of his said children should die in his lifetime, leaving a child or children, the share or shares of the parents so dying should go to their child or children. The testator then proceeded as follows:-" And I hereby declare, that neither of my said daughters shall sell, charge, mortgage or encumber the estates or property by me given, devised and bequeathed to them; and that my daughters shall have, receive and take such estates and...
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