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Income.

Liability to arrestment.

Bankruptcy.

Contracts of marriage.

acquired before or during the marriage, shall, by operation of law, be vested in the wife as her separate estate, and shall not be subject to the jus mariti."

1 Supra, § 88 et seqq.

2 Supra, p. 193.

3 Supra, §§ 89, 93.

4" Vested," cf. "vest," M. W. Policies of Assurance Act, §§ 1 and 2.

5 This does not exclude the wider protection afforded by marriage contract (subsec. 5 and sec. 8). The Act only makes that to be separate estate which is not so otherwise by contract or destination. Re Storror, 24 L. R. Ch. D. 195; Re Whitaker L. R. 34 Ch. D. 227; 31 Solicitors' Л. p. 376.

(2.) Any income of such estate shall be payable to the wife on her individual receipt or to her order, and to this extent the husband's right of administration shall be excluded; but the wife shall not be entitled to assign the prospective income thereof, or, unless with the husband's consent, to dispose of such estate.

(3.) Except as hereinafter provided, the wife's moveable estate shall not be subject to arrestment, or other diligence of the law, for the husband's debts, provided that the said estate (except such corporeal moveables as are usually possessed without a written or documentary title) is invested, placed, or secured in the name of the wife herself, or in such terms as shall clearly distinguish the same from the estate of the husband."

8

(4.) Any money, or other estate of the wife, lent or entrusted to the husband, or immixed with his funds, shall be treated as assets of the husband's estate in bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the value of such money or other estate after but not before the claims of the other creditors of the husband for valuable consideration 10 in money or money's worth have been satisfied.

(5.) Nothing herein contained shall exclude or abridge the power of settlement by ante-nuptial contract of marriage."

6

* Supra, §§ 89, 90. In England the word "dispose" is sometimes used as meaning an inter vivos as distinguished from a mortis causa deed. Here it is evidently used not in any technical or narrow or limiting sense, but as meaning disposition in any way and by any Act or deed and for or without consideration. Cf. The Conjugal Rights Amendment Act, § 6, supra, p. 185. Astley v. Manchester etc. Ry. Co. 2 De. G. and J. 453, a case upon the use of the word in the Lands Clauses Act. See also the Thellusson Act, § 1, infra, p. 202, note 2.

At common law a wife is entitled to make a testament or a will, and her husband's consent is not necessary to validate it. Ersk. 1. 6. 28; Miller v. Milne's Trustee, 3 Feb. 1859, 21 D. 377; Fraser, Husband and Wife, i. p. 564. Cf. 18 Vict. c. 23, § 6, supra, p. 181. According to

Regiam Majestatem a woman vestita viro could not make a testament without her husband's consent, ii. c. 29, ed. Innes, c. 36 (ed. Skene).

7 Supra, § 92.

8 Supra, §§ 92, 222. As to what is included under the term "corporeal moveables see Fraser, Husband and Wife, p. 690.

9 Supra, § 175.

10 I.e., real as distinguished from nominal or elusory consideration. Cf. supra, p. 18; and 1620, c. 18, supra, p. 138.

11 Supra, § 230. The Act is not to prevent any such settlement being made as could have been made before it was passed. The power of settlement by post-nuptial contract is reserved by sec. 8.

2. Where a marriage is contracted after the passing of this Act the rents and produce of heritable property in Scotland belonging to the wife shall no longer be subject to the jus mariti and right of administration of the husband.1

Rents of

heritable
property to
be separate
estate in wife.

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3. In the case of marriages which have taken place before the pass- How far Act ing of this Act:

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to apply to marriages contracted

passing.

(1.) The provisions of this Act shall not apply where the husband before its shall have, before the passing thereof, by irrevocable deed or deeds, made a reasonable provision for his wife in the event of her surviving him :1

1

(2.) In other cases the provisions of this Act shall not apply except that the jus mariti and right of administration shall be excluded to the extent respectively prescribed by the preceding sections from all estate, moveable or heritable, and income thereof, to which the wife may acquire right after the passing of the Act.2

1 Supra, § 94.

2 Supra, § 94. Nothing is said here as to vesting in the wife.

marriages

before Act parties may come under its provisions

4. It shall be competent to all persons married before the passing of In case of this Act to declare by mutual deed1 that the wife's whole estate, includ- contracted ing such as may have previously come to the husband in right of his wife, shall be regulated by this Act, and upon such deed being registered in the register of deeds at Edinburgh or in the Sheriff Court by deed. register of the county or counties in which the parties reside, and being advertised in terms of the schedule in the Edinburgh Gazette and three times in two local newspapers circulating in such county or counties, the said estate shall be vested in her as herein-before provided, and subject to the provisions of this Act; provided that the said estate (except such corporeal moveables as are usually possessed without a

Husband's consent dispensed with in certain cases.

Right given to husband in wife's moveable succession.

Children of

domiciled in Scotland to have right of A legitim, &c.

written or documentary title) is invested, placed, or secured, in the name of the wife herself, or in such terms as shall clearly distinguish the same from the estate of the husband; but no such deed shall be of any effect as against any debt or obligation contracted by the husband prior to the date of the deed being so advertised and registered.

1 Supra, §§ 95, 194.

5. Where a wife is deserted by her husband,1 or is living apart from him with his consent, a judge of the Court of Session or Sheriff Court, on petition addressed to the court, may dispense with the husband's consent to any deed relating to her estate.3

1Cf. the Conjugal Rights (Scotland) Amendment Act, 1861, § 1, supra, p. 183.

2 Supra, §§ 100, 106.

Or to a petition for her appointment as executor-dative. Currie, The Confirmation of Executors, p. 98 (ed. 1890).

6. After the passing of this Act the husband of any woman who may die domiciled in Scotland1 shall take by operation of law the same share and interest in her moveable estate which is taken by a widow in her deceased husband's moveable estate, according to the law and practice of Scotland, and subject always to the same rules of law in relation to the nature and amount of such share and interest, and the exclusion, discharge, or satisfaction thereof, as the case may be.3

1 This is in accordance with the common law rule. Nisbett v. Nisbett's Trustees, 24 Feb. 1835, 13 S. 517; Newlands v. Chalmers' Trustees, 22 Nov. 1832, 11 S. 65; supra, § 39.

2 Supra, §§ 96, 97, 98.

3 Since the passing of this Act the husband has been decerned executor qua husband in the same manner as the widow has been in use to be decerned qua relict, Currie, The Confirmation of Executors, pp. 86, 293 (ed. 1890); but in a competition for the office the husband will be postponed to the next of kin, seeing that at common law they are entitled to the office in preference to the relict. Stewart v. Kerr, 19 March, 1890, 17 R.

7. 1After the passing of this Act the children of any woman who may women dying die domiciled in Scotland shall have the same right of legitim in regard to her moveable estate which they have according to the law and practice of Scotland in regard to the moveable estate of their deceased father,2 subject always to the same rules of law in relation to the character and extent of the said right, and to the exclusion, discharge, or satisfaction thereof, as the case may be.

1 Supra, § 99.

2 This excludes heritable securities upon or affecting land within the meaning of the Titles to Land Consolidation Act, 1868, supra, p. 190.

contracts and

8. This Act shall not affect any contracts made or to be made be- Exempting tween married persons before or during marriage, or the law relating certain legal to such contracts, or the law relating to donations between married rights from persons, or to a wife's non-liability to diligence against her person, or Act. any of the rights of married women under the recited Act.3

2

1 Supra, §§ 95, 102, 174. Cf. Act 1681, c. 10, supra, p. 177, note 2. The present Act is not to affect any marriage or contract, ante-nuptial or post-nuptial (the power to make the former being reserved by sec. 1 sub-sec.5), or the rights of parties thereunder. The wife's estate may, notwithstanding sec. 1, be put sub jure mariti: the enactments as to jus relicti and legitim may be renounced or varied, and so on. Re Storror's Trust, L. R. 24 Ch. D. 195; Re Whitaker, L. R. 34 Ch. D. 227. But neither antenuptial nor post-nuptial contracts are to have more extensive privileges than before. The result of the English Act is that settled property may be exposed to liabilities it was not subject to before. Re Armstrong, L. R. 21 Q. B. D. 264. Cf. 31 and 32 Vict. c. 101, § 117, as to heritable securities, supra, p. 192, note 11.

2 Supra, §§ 14, 177.

3 Supra, § 102.

operation of

9. This Act may be cited as the Married Women's Property (Scot- Short title. land) Act, 1881.

SCHEDULE.

Form of Notice prescribed by Section 4.1

Notice is hereby given that on the

day of

a

deed by A.B. of C. [designation] and E.F. his wife has been registered

in the Register of

Property (Scotland) Act, 1881.

1 Supra, § 95, note 2.

in terms of the Married Women's

No. XII.

39 AND 40 GEO. III., c. 98.

An Act to restrain all Trusts and Directions in Deeds or Wills, whereby the Profits or Produce of Real or Personal Estate shall be accumulated, and the beneficial enjoyment thereof postponed beyond the time therein limited. 1

[28th July, 1800.]

WHEREAS, it is expedient that all dispositions of real or personal Preamble. estates, whereby the profits and produce thereof are directed to be accumulated, and the beneficial enjoyment thereof is postponed, should be made subject to the restrictions hereinafter contained. May it therefore please your Majesty that it may be enacted, and be it No person by deed or will, enacted by the King's most excellent Majesty by and with the advice &c., shall

settle or dispose of any real or per

sonal property

in such manner that the

rents or pro

accumulated

for a longer period than herein mentioned, and any other

persons who

and consent of the Lords, spiritual and temporal, and Commons, in Parliament assembled, and by the authority of the same, that no person or persons shall, after the passing of this Act, by any deed or deeds, surrender or surrenders, will, codicil or otherwise howsoever, settle or duce shall be dispose of any real or personal property so and in such manner that the rents, issues, profits, or produce thereof shall be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settlor or settlors, or the term of twenty-one years direction shall from the death of any such grantor, settlor, devisor, or testator, or be void, and the rents, &c., during the minority or respective minorities of any person or persons shall go to the who shall be living or in rentre sa mere at the time of the death of would other such grantor, devisor, or testator, or during the minority or respective titled thereto. minorities only of any person or persons who, under the uses or trusts of the deed, surrender, will, or other assurances directing such accumulations would, for the time being, if of full age, be entitled unto the rents, issues, and profits, or the interest, dividends, or annual produce so directed to be accumulated; and in every case where any accumulation shall be directed otherwise than as aforesaid, such direction 7 shall be null and void, and the rents, issues, profits and produce of such property so directed to be accumulated shall, so long as the same shall be directed to be accumulated contrary to the provisions of this Act, go to and be received by such person or persons as would have been entitled thereto, if such accumulation had not been directed.10

wise be en

1 Commonly called the Thellusson Act. The principal points which have arisen under the Act are discussed in the Law Times, Vol. Ixiv. p. 457; Vol. lxv. p. 31, et seqq. See also, Jarman, Treatise on Wills, i. p. 302, et seqq. (4th ed., 1881); M'Laren, Wills and Succession, i. p. 302, et seqq.; Bythewood and Jarman, Precedents in Conveyancing, vii. p. 448 (ed. 1889); Hargrave, Treatise on the Thellusson Act (London, 1842).

2 The word "dispositions" is a general term covering the particular deeds specified in the enacting clause. Per Lord Deas in Keith's Trustees v. Keith, 17 July, 1857, 19 D. at p. 1069.

3 This does not cover a beneficiary under a settlement. Accumulation by a beneficiary is not struck at. Griffiths v. Vere, 9 Ves. 127, 136; Tench

v. Cheese, 6 De. G. M. and G. 453.

It is different in the case of trustees on whom the deed imposes the duty of accumulation. Pursell v. Elder, 1865, 4 M'Q. 992; Lord v. Colvin, 7 Dec. 1860, 23 D. 111.

+ Supra, § 152.

The four different periods beyond which accumulation of income is unlawful are alternative not cumulative. Therefore when one period has been applied and exhausted, a second period cannot be resorted to and applied in order to extend the time for accumulation. None of the periods exceed twenty-one years from the death of the settlor. Jagger v. Jagger,

L. R. 25 Ch. D. 729.

5 Excluding the day of the testator's death. Lord v. Colvin, 7 Dec. 1860, 23 D. 111; Gorst v. Loundes, 11 Sim. 434; Lester v. Garland, 15 Ves. 248.

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