A Practical Treatise of Assets, Debts and Incumbrances

if the grant becomes void through the negligence of the grantee to perfect the grant according to the provisions in the Annuity Act. () The following observations of Sir John Leach occur in Greatley v. Noble,"In this view of the case, it is not necessary to determine the general point, as to the liability of a feme covert's separate estate to answer general demands upon her. At law there can be no sepa[ *580 ] rate enjoyment of property by a feme covert; in equity there may; and, as incident to the power of enjoyment, she has a power of charging her separate property. Where a wife, as in Hulme v. Tenant, and other cases, joins with her husband in a security, it is implied to be an execution of her power to charge her separate property. If it were necessary now to decide the point, I think it would be difficult to find either principle or authority for reaching the separate estate of a feme covert, as if she were a feme sole, without any charge on her part, either express or to be implied."(y) And in Stuart v. Lord Kirkwall, the same learned judge repeated, "I had occasion to consider this doctrine fully in the case of Greatley v. Noble. I then was, and now am of opinion, that a feme covert being incapable of contract, this Court [Chancery] cannot subject her separate property to general demands.”(z) And in a later case, Sir John Leach, after observing that the cases had fully established, that there could be no lien on a married woman's separate estate for the consideration of an annuity granted out of it, proceeded,—“And the reason was plain; a feme covert could not, by the equitable possession of separate property, acquire a power of contract; she had a power of disposition, as incident to property, and her actual disposition or appointment of the property would bind her. This Court [Chancery] would apply her separate property in payment of an annuity which she had charged upon it, but it could not apply her separate property repayment of the consideration of that annuity, which she had not charged upon it. Being incapable of contract or general engagement, this Court could not fasten on her separate property those equities, which arise out of contract and general engagement."(a)

Besides the modes of disposition before mentioned, a married woman may also in the life-time of her husband, and independently of his consent, dispose of her separate personal estate by her will.(b) In a case [ *581 ] where a married woman had a power to *dispose by will of a sum of money, which, for want of appointment, was limited to her executors or administrators; and she made a will, and

Stuart v. Lord Kirkwall, ib. 387. It may be noticed, that in Lord Thurlow's observations in Hulme v. Tenant, 1 Bro. C. C. 16, his Lordship seems to include a bond in the term "general engagement," since that case arose on a bond of the wife. See also observations of counsel, Madd. 92, 93, on this expression of Lord Thurlow. But, that a bond, or promissory note, or bill of exchange, is not a general engagement in the modern meaning of the phrase general engagement, see Heatley v. Thomas, 15 Ves. 596, Bullpin v. Clarke, 17 Ves. 365, and Stuart v. Lord Kirkwall, 3 Madd. 387.

named an executor, but made no particular appointment of the money; such money was held not to devolve to her husband, who survived her, but to belong to her executor, and to be part of her assets. (c)

Out of a separate estate, which are the assets of a married woman deceased, a Court of Equity pays her debts by bond and by simple contract pari passu, or equally; "the bond, considered merely as a bond, being void."(d) But out of the same estate, a Court of Equity has, it seems, given her executor a preference before her other creditors, by permitting him to retain his own debt. (e)

Generally speaking, a husband is under a "strict legal necessity" of burying his wife. (ƒ) And probably, in general cases, this duty falls on him, notwithstanding the wife is possessed of an estate to her separate use; (g) although, in particular instances, he may have the right to throw her funeral expenses on that estate.(h) In Gregory v. Lockyer, the separate estate of a feme covert was by the decree directed to be applied in payment of her debts and funeral expenses. The husband, having actually paid them, claimed before the Master to have the money repaid by her executor. And Sir John Leach made the order, considering himself as bound by the decree; but expressed a doubt whether, generally, the husband has a right to throw the wife's funeral expenses upon her separate estate. (i)

In Norton v. Turvill, where the bond and other creditors [ *582 ] of a married woman were decreed to be paid out of her separate estate, the Court, with reference to the order, in which her assets should be taken, held, that to the purpose of paying the debts, "such part of the separate estate, as is undisposed of by the will, ought to be first applied; in the next place, if that be not sufficient, the creditors are to be paid out of any money legacies given by the feme covert; and lastly, supposing there is still a deficiency, all the specific legatees ought to contribute in proportion."(j)

(c) Churchill v. Dibben, 2 Kenyon, part 2, p. 68, 86, Sugd. Pow. 3rd ed. 284, n. (d) Anon., Mos. 328; Anon., 18 Ves. 258.

(e) Anon., Mos. 328. That generally speaking, however, an executor is not allowed to retain, out of equitable assets, his own debt, see the authorities referred to at p. 271 of the present Treatise.

(f) Jenkins v. Tucker, 1 H. Bl. 90.9 Mod. 32.

31.

(g) Bertie v. Lord Chesterfield, 9 Mod.

(h) Anon., Mos. 328; Poole v. Harrington, Toth. tit. Feme Covert, ed. 1820, p. 97. (i) 6 Madd. 90. (j) 2 P. W. 144.