Lechmere v Brotheridge
| Jurisdiction | England & Wales |
| Judgment Date | 29 May 1863 |
| Date | 29 May 1863 |
| Court | High Court of Chancery |
English Reports Citation: 55 E.R. 138
ROLLS COURT
S. C. 32 L. J. Ch. 577; 9 Jur. (N. S.) 705; 11 W. R. 814; 2 N. R. 219. Overruled, Taylor v. Mends, 1865, 13 W. R. 394.
[353] lechmere v. brotheridge. May 1, 27, 29, 1863. [S. C. 32 L. J. Ch. 577; 9 Jur. (N. S.) 705; 11 W. R. 814; 2 N. R. 219. Overruled, Taylor v. Meads, 1865, 13 W. R. 394.] Where a wife has an estate for life in freeholds for her separate use, she can alienate that estate without any acknowledgment under the Fines and Recoveries Act (3 & 4 Will. 4, c. 74). But a married woman cannot dispose of her fee-simple lands settled to her separate use, except by deed duly acknowledged under the Fines and Recoveries Act. With respect to personal property, whether vested or contingent, settled to the separate use of a feme coverte, she may deal with it as a feme sole, and either sell or encumber it. Money settled to the separate use of a married woman is paid out of Court without any personal examination. The question was, whether the real estate of a married woman, which was settled to her separate use, had been validly conveyed away by her by a deed executed by MBEAV. 3M. LECHMERE V. BEOTHEBIDGE 139 her, but which she had not acknowledged according to the formalties required by the Statute for the Abolition of Fines and Recoveries (3 & 4 Will. 4, c. 74). John Parker made his will in 1854, by which he devised his Ashchurch estate to three trustees, in trust for Mrs. Brotheridge for her separate use for life, and after her decease in trust for her husband for life, and after the decease of the survivor for their children as tenants in common in fee. There was no proviso preventing Mrs. Brotheridge from anticipating her income. In addition to this, the testator, by the same will, gave the residue of his real and personal estate to the same trustees and executors, upon trust to pay annuities of 10 each to Mrs. Brotheridge and certain other persons during the life of George Parker and Ann his wife and the life of the survivor, and after the decease of the survivor (with the exception of two messuages) upon trust for Mrs. Brotheridge and two other persons, their heirs, executors, &c., in equal shares, But if any one of them three died without leaving issue before the period of division, his or her share was to go to the survivors or survivor; and if the one died and left issue, then the issue were to take their parents' share. The testator directed that the share of Mrs. Brotheridge was to be for her sole and [354] separate use; but there was no clause against her anticipating the income. The testator died in 1855. In 1856 Mr. Brotheridge had become largely indebted to Messrs. Lechmere, his bankers, and be and his wife gave to them the following security. By an indenture dated the 17th of December 1856, and made between Mr. and Mrs. Brotheridge of the first part, and Messrs. Lechmere, of the second part, the former granted and assigned to the latter, their heirs, executors, administrators and assigns-first, the life interest in the Ashchurch estate; secondly, the annuity of 10 to which Mrs. Brotheridge was entitled under the will, and, thirdly, all the undivided one-third part and all other the share, whether vested or contingent, of Mrs. Brotheridge, or of the Defendant her husband in her right, in the residue of the real and personal estate of the testator, in trust to sell and pay the expenses, and, out of the remainder, to pay the debt due to the Plaintiffs on the balance of their account, with a proviso that the principal sum to be recoverable by the security should not exceed 1000. This deed had never been acknowledged by Mrs. Brotheridge under the Act for the Abolition of Finos and Recoveries (2 & 3 Will. 4, c. 74, ss. 77 to 91). Ann Parker was still living. This suit was instituted in 1862 by Messrs. Lechmere against Mr. and Mrs. Brotheridge and the three trustees, praying for a sale of the property and payment to them of the amount due on their security. [35B] Mrs. Brotheridge insisted, first, that the deed was invalid as against her, it not naving been acknowledged by her under the statute (3 & 4 Will. 4, c. 74), and, secondly, that it had been executed by her under undue influence and by compulsion. Mr. Selwyn and Mr. Wickens, for the Plaintiffs. That part of the Fines and Recoveries Act (3 & 4 Will. 4, c. 74, s. 77), which requires certain formalities in regard to married women, has no application to an estate settled to the separate use of a, feme covert, who can dispose of her separate real estate without any acknowledgment of the deed. This must follow from the doctrine that a feme covert is, as regards her separate estate, in the position of a, feme sole. She must, therefore, have all the incidents of an ownership as a feme sole, and amongst them the right of disposing of her separate estate in the same mode. If it be held that she is bound to acknowledge the deed under the 77th section, the concurrence of her husband in the deed would become necessary; so that the disposition by a wife of her separate estate would be dependent on his will, and thus property, over which the husband is to have no control, will be placed within his power. It was at one time doubted, whether a,feme covert could devise her separate real estate; but Lord Justice Turner, in Atchi&on v. Le Mann (23 L. T. 302), expressed his clear opinion that she could. Having, in that case, decided that the wife had a legal power to devise, he says (p. 303), " It is not, therefore, as I think, necessary for us to decide the point, which was so much argued at the Bar, whether Jane Embleton Watkins could, by will, have devised the estate under a limitation in fee to her for her separate use without any superadded power of appointment; but I am very [356] strongly inclined to think 140 LECHMERE V. BROTHERIDGE 38 BEAV. SB7. that she could have done so, and, as at present advised, I should so decide the point, if it were necessary to decide it. It being settled that an estate in fee may be limited to the separate use of a married woman, thus giving her an absolute ownership, she must, I think, have all the rights of disposition which are incident to the ownership. The agreement of a married woman cannot bind her personal, but can bind her real, estate settled to her separate use; according to the cases of Stead v. Clay (1 Sim. 294) and...
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