Stogden v Lee
| Jurisdiction | England & Wales |
| Year | 1891 |
| Date | 1891 |
| Court | Court of Appeal |
Husband and Wife - Separate Property of Wife - Restraint on Anticipation without Words creating Separate Use - Power to bind Separate Property - Separation Deed -
A married woman cannot contract so as to bind her separate property, unless she has some separate property existing at the date of the contract; but, if she has such property, her contract will bind it, and also her after-acquired separate property.
Palliser v. Gurney (19 Q. B. D. 519) approved and followed.
A restraint upon the alienation or anticipation of income given to a woman is of no avail unless the income is given to her for her separate use; a gift to her separate use will not be implied from the mere existence of a restraint on anticipation.
Baggett v. Meux (1 Coll. 138) approved.
By a separation deed between husband and wife, the husband covenanted with the trustees of the deed that he would, during the joint lives of himself and his wife, pay to the trustees an annuity of 500l. And it was declared that the trustees should stand possessed of the annuity, during the continuance thereof, upon trust to pay the same to the wife “for her separate use, without power of anticipation.” There was a proviso that, in case the husband should at any time thereafter obtain a decree absolute for a divorce against the wife in respect of any circumstances occurring after the date of the deed, or in case the wife should at any time thereafter be proved to be leading a notoriously unchaste life, the annuity should absolutely cease and determine:—
Held, that the separate use continued only during the joint lives of husband and wife, and that arrears of the annuity remaining unpaid at the date of the husband's death were not separate property of the wife.
APPEAL by the defendant against the judgment of Day, J., at the trial of the action without a jury.
The defendant was a widow. The action was brought to recover the balance of principal and interest due to the plaintiff by the defendant by virtue of a covenant contained in an indenture of charge, dated January 20, 1883, and made between the defendant and her late husband, Philip Lee, of the one part, and the plaintiff of the other part.
The defendant was formerly the wife of Charles L. Thorpe, who died in 1877. On November 20, 1875, a deed of separation was executed by Mr. and Mrs. Thorpe and two trustees, by which, after recitals that differences had arisen between the husband and wife, that they had agreed to live separate, and that the husband had agreed to allow the wife an annuity of 500l., “as and for her separate maintenance and support during the joint lives” of himself and the wife, but determinable as thereinafter mentioned, the husband covenanted with the trustees (inter alia) that it should be lawful for the wife to live separate from him, and that he would, during the joint lives of himself and the wife, pay to the trustees the annuity of 500l., by equal quarterly payments, and that the trustees should stand possessed of the annuity during the continuance thereof, upon trust, until the husband should have been made liable for and should have been compelled to pay some debt or debts contracted by the wife after the execution of the deed, to pay the annuity to the wife “for her separate use, without power of anticipation”; but, in case the husband should have been made liable for and should have been compelled to pay some debt or debts contracted by the wife after the execution of the deed, after notice of the proceedings to enforce the payment of such debt or debts, and a failure on the part of Soares, one of the trustees, to indemnify the husband against the same, then and upon trust out of the annuity then due, or from time to time to grow due, to pay the amount of such debt or debts and the costs incurred by the husband in respect thereof, and to pay the surplus (if any) of such current and growing and future payments of the annuity to the wife, for her separate use, without power of anticipation. Provided that, in case the husband should at any time thereafter obtain a decree or judgment absolute for a divorce against the wife in respect of any circumstances accruing after the date of the deed, or in case the wife should at any time thereafter be proved to be leading a notoriously unchaste life, then and in either of such cases and thenceforth the annuity should absolutely cease and determine. There followed a covenant by Soares to indemnify the husband against the wife's debts incurred since the date of the deed, the husband duly performing his covenants.
Charles L. Thorpe, by his will, devised and bequeathed all his real and personal estate unto and to the use of Jane Vipont and Walter Butler (whom he also appointed executrix and executor of his will) upon trust (inter alia) to invest 500l. in their names in Consols, and to pay the dividends to his Aunt Brown during her life; and also to invest 12,000l., and to pay the interest arising therefrom to the said Jane Vipont during her life; and to invest the further sum of 5000l., as therein mentioned, and to pay the income arising therefrom to Ann Radcliffe during her life; and to invest the further sum of 5000l., and to pay the income arising therefrom to his wife, Charlotte A. R. Thorpe, during her life. And the testator declared “that neither of them, my said Aunt Brown, the said Jane Vipont, Ann Radcliffe, and Charlotte A. R. Thorpe, shall have power to alienate, charge, or anticipate the income of the several legacies bequeathed for their benefit as aforesaid.” At the time of Thorpe's death a considerable sum was due from him in respect of the annuity of 500l. under the separation deed. In 1878 an action was brought in the Chancery Division for the administration of Thorpe's estate. On April 26, 1880, Mrs. Thorpe married Lee. On January 20...
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