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world of difference to them. Various devices are therefore resorted to for its protection against the risks of trade. Sometimes the husband, before the marriage, gives a sum of money to his intended wife or to trustees, and she or they purchase it in their own names. Such a gift is no doubt good in itself, but if, as must necessarily happen, the husband is let into possession, or joint possession, of the property, it would probably be claimed by his creditors, if he became bankrupt, on the ground of reputed ownership. But it is not easy to see why such a claim should be sustained. The case differs from the bare assignation of the furniture itself, as the intended gift there fails for want of delivery, while here there has been actual payment and valid delivery of the money before marriage. If so, the investment, that is the furniture, belongs not to the husband but to the wife. In England it would not pass to the creditors under the doctrine of reputed ownership.1

assigned to


§ 227. The furniture is often conveyed directly to trustees Furniture by ante-nuptial deed. If it is duly delivered and bona fide belongs to them, it will be protected, even although it is in the apparent possession of the husband at the time of his sequestration. If the husband has an unprotected liferent in the furniture, that interest passes to the trustee for his creditors; it is valued, and, failing payment from other

1 Robson, Law of Bankruptcy, p. 520 (6th ed.); Yate-Lee and Wace Law of Bankruptcy, p. 391 (2nd ed. 1884); Campbell, Law relating to the Sale of Goods, p. 98; Davidson's Precedents, vol. ii. pp. 817, 1263. The same applies in the case of a post-nuptial settlement, if made for valuable consideration. Ib., and also Ashton v. Blackshaw, L.R. 9 Eq. 510; Farrington v. Parker, L.R. 4 Eq. 116; Ex parte Cox, in re Reed, L.R. 1 Ch. D. 302.

2 See M'Donald or Young v. Loudoun, 26 June, 1855, 17 D. 998 ; Scott v. Horsburgh, 20 Feb. 1889, 26 S.L.R. 362; Grieve v. Herald, 1889, 5 Sh. Co. Rep. 250.

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sources, the trustee is entitled to have so much of the furniture sold as will satisfy the value of the liferent.

Where both house and furniture are the property of the wife, or where the furniture belongs to her, and she is tenant of the house, and pays the rent out of her own separate estate, it has been held in England that the furniture could not be seized for a debt of her husband,1 and the same rule would seem, on principle, to apply in Scotland.

§ 228. A disposition by a husband of his household furniture to his wife, in the event of her surviving him, confers no right upon her, in the event of his sequestration, to compete with his creditors, even although he has died subsequently to the sequestration.2

1 See Duncan v. Cashin, L.R. 10, C.P. 534; Jarman v. Woolloton, 3 T.R. 618; Haselinton v. Gill, 3 T.R. 620.

2 Darling v. Mein, 20 Dec. 1851, 1 Stuart, 233; S.C. 14 D. 296. See also per Lord Fullerton in Campbell v. Stewart, 13 June, 1848, 10 D. 1280.



of Great change years is that

of recent


wife's property remains

her own.

§ 229. I have thus attempted to state the position the property of married persons, the rights which they their children have in reference to it, and how far it can be affected by creditors. The one great change, which has been made in recent years, is that the wife's property remains her own after marriage, and does not go to pay her husband's debts, as heretofore, unless she is directly a party to this. Her whole moveable estate has, by statute, been Her whole converted into peculium, and is regulated by the law which peculium. applies to that kind of property. The husband's right of administration subsists, as of old, except in some small matters, and the wife must still act with her husband's consent, unless advantage is taken of the established practice and his right of administration is excluded by


moveable estate is now

has not


§ 230. Legislation has not interfered with provisions, ante- Legislation nuptial or post-nuptial, for wife and children. Much may no touched doubt be advanced against the policy of family settlement as developed in England, but that practice is unknown in Scotland, and with us the marriage contract is used for the legitimate purpose of protecting the wife's property, of securing contracts are a provision for the wife and the children of the marriage necessary.



Difficulty in ascertaining the law.

which will be safe against the engagements of the husband,
and of conferring upon the spouses more perfect freedom
in dealing with their own property than is possible at
common law. For these objects marriage contracts remain
as necessary as ever-and in some respects more so, con-
sidering the new rights which have been conferred upon
husbands and upon children, and the increased liability of
married women. Lord Blackburn, indeed, when commenting
upon the clause of the Married Women's Property Act which
reserves the power of settlement by ante-nuptial contract of
marriage, says, "it is pretty plain that it was meant to say—
'when you are marrying after 1881, that is after this Act
has come into force, it is your own fault if you do not, by
ante-nuptial contract, provide for what is expedient.'

§ 231. Provisions still remain the subject of contention
between trustees, beneficiaries, and creditors. On the one
hand, there is the natural and reasonable desire of man and
woman to set aside something to fall back upon in the day
of adversity, and for the maintenance of the weak and
unprotected after they themselves are gone; on the other
hand, there is the jealousy of creditors to secure that these
estimable ends be not abused and made an instrument of
fraud. The result depends upon the time when the obli-
gations have been undertaken, the nature of these
obligations, and the skill with which the deeds em-
bodying them have been prepared. It is not easy for
the trained lawyer to say what the law is, and mistakes
are often made. It is almost impossible for the parties in-
terested to ascertain, for themselves, what the law permits,
or how the ends they contemplate are to be effected.
It is almost equally impossible for creditors or for a

1 In Paterson v. Poe, L.R. 8 App. Ca. at p. 681; 10 R., H. of L. at p. 74.

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trustee for creditors


to ascertain, without professional assistance, whether the money which a bankrupt has set aside under marriage contract belongs to his family or to them. Questions between creditors and provisees are constantly being agitated as to which there should be no doubt.


§ 232. The Act of 1881 allows persons married prior to its Suggested date to take advantage of its provisions, by means of advertisement and registered deed. There seems to be no difficulty in framing a statute defining, and, if need be, amending the law relating to family provisions, and enabling all interested to adopt certain portions of it. The Married Women's Policies of Assurance Act is not a model of draftsmanship, but it allows a husband to do certain specific things in a defined manner, and creditors can judge for themselves whether the thing authorized has been done. An Act more general in its terms, and more carefully framed, would be of great benefit to the community, and would fitly supplement legislation upon the subject of the property of married persons.

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