Adams v Gamble

• Jurisdiction: Ireland
• Judgment Date: 03 June 1861
• Date: 03 June 1861
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

ADAMS

and

GAMBLE.

Harris v. MottENR 14 Beav. 169.

Peacock v. Monck 2 Ves. 192.

Churchill v. DibbinENR 2 Ken., pt. 2, p. 85; S. C., 9 Sim. 447.

Moore v. MorrisENR 4 Drew. 38.

Newcomen v. Hassard 4 Ir. Chan. Rep. 268.

Wright v. Cadogan 1 B. P. C. 486; S. C., 2 Ed. 239.

on Powers 1 Sug. Pow. 206.

Lassence v. TierneyENR 1 M'N. & Gor. 551; S. C., 2 H. & Tw. 115.

Field v. MooreENR 10 Beav. 134; S. C., 2 Jur., N. S., 150.

Goodill v. BinghamENR 1 Bos. & P. 192.

Doe d. Stephens v. ScottENR 4 Bing. 506; S. C., 2 Nev. & P. 317.

Baggott v. MeuxENR 1 Phil. 624.

Wall v. ByrneUNK 7 Ir. Eq. Rep. 578.

Barrkon v. Barron 8 Ir. Chan. Rep. 366.

Hulme v. Tenant 1 W. & T. Lead. Cas. 402.

Johnston v. Geraghty 7 Jur., N. S., 273.

Tullett v. ArmstrongENR 1 Beav. 1; S. C., 4 M. & Cr. 377.

Pybus v. Smith 1 Ves. 193.

Wilcox v. Hannyngton 5 Ir. Chan. Rep. 38.

Power v. Bailey 1 B. & Bea. 49.

Major v. Lansley 2 R. & M. 355.

Rippon v. DowdingENR Amb. 565.

Wright v. Cadogan 1 B. P. C. 486.

Newckomen v. Hassard 4 Ir. Chan. Rep. 268.

Harris v. MottENR 14 Beav. 169.

Peacock v. Monk 2 Ves. 192.

Moore v. MorrisENR 4 Drew. 38.

Harris v. MottENR 14 Beav. 169.

Peacock v. Monk 2 Ves. 190.

Tullett v. ArmstrongENR 1 Beav. 1.

Tullett v. ArmstrongENR 1 Beav. 22.

Baggott v. MeuxENR 1 Col. 138; S. C, on appeal, 1 Phil. 627.

Major v. Lansley 2 R. & M. 255.

Fettiplace v. Gorges 1 Ves. jun. 49.

Atcheson v. Le Mann 9 Wick. R. 584.

Stead v. ClayENR 1 Sim. 294.

Wainwright v. HardestyENR 2 Beav. 365.

Churchill v. DibbenENR 9 Sim. 447 n.

102 CHANCERY REPORTS.. ADAMS ty. GAMBLE.* Tam case came before the Court on appeal from an order of the LORD CHANCELLOR, made under the following circumstances :-By an indenture of lease, dated the 10th of April 1791, James Leslie demised to one John Adams a farm, part of the lands of Anticor, in the county of Antrim, for three lives, with a covenant for the perpetual renewal of the said lease. John Adams, being seised of the said leasehold, made his will, dated the 25th of February 1799, and thereby devised the said leasehold to his daughter Isabella, in these words-" I also leave and bequeath unto my daughter Isabella Adams the lease of all my lands which I now possess, to her, to have and to hold, enjoy and possess, and to her heirs and assigns for ever, reserving it in her own power from any husband or husbands which she shall marry or be married to." The said testator died sometime after the date of his will, and his daughter and devisee Isabella entered into possession of the leasehold, and, in the year 1801, intermarried with James Gamble, the appellant's grand-uncle. On the 30th of April 1822, a renewal of the said lease of the 10th of April 1791 was duly executed by the then owner of the reversion, to the said James Gamble and Isabella his wife, whereby the premises were limited to the use of the said James Gamble for his life, and, after his death, to the use of such person or persons as the said Isabella Gamble should, whether covert or discovert, and, if covert, notwithstanding her coverture, by deed or will (executed as therein mentioned), direct, limit and appoint ; and, in default of such direction, limitation and appointment, to the use of the said Isabella Gamble, her heirs or assigns. By indenture, dated the 23rd of May• 1835, and made between * Ceram The LORD CHANCELLOR, The LORD JUSTICE OF APPEAL, and BARON HUGHES. CHANCERY REPORTS. 103 the said Isabella Gamble of the one part, and the said James 1861. Ch. Appeal. Gamble of the other part, after reciting the said renewal, it was ADAMS witnessed that, for the considerations therein mentioned, the said v. Isabella Gamble conveyed the said leasehold premises unto and to GAMBLE. the use of the said James Gamble, his heirs and assigns. This Statement. deed was not acknowledged by the said Isabella Gamble, under the Fines and Recoveries Abolition Act. Isabella Gamble, afterwards, also duly made her will, dated the 24th of August 1838, whereby, after reciting her said father's will, she devised the said leasehold to her husband, the said James Gamble, for his life, and, after his death, to his nephew William Gamble, the appellant's father, and to his heirs and assigns for ever. The said Isabella Gamble died in the year 1842, from which' time the said James Gamble continued in the possession of the said leasehold, until his own death in April 1859, when the appellant entered into possession of the same, as absolute devisee thereof under the will of the said James Gamble, dated the 29th of April 1858, and assignee, by deed of the 7th of May 1860, by which the said William Gamble conveyed to the appellant all his interest in and to the said lands, under the will of the said Isabella Gamble. James Adams, on the 11th of April 1860, filed his cause petition in the High Court of Chancery in Ireland, against the appellant, charging that she died without making any effectual disposition of the said lands, and that said James Adams, as her heir-at-law, was entitled thereto, and to a conveyance thereof from the appellant, who then was, and still is, in possession of the same, and praying for such declaration of right, and consequential relief accordingly. On this petition the Lox!) CHANCELLOR made a decree in favour of the petitioner, from which the present appeal was brought.-[Vide supra, vol. 11, p. 269.] 104 CHANCERY REPORTS. a deed under the Fines and Recoveries Act (a); and the deeds which she executed when she was a feme coverte cannot convey any interÂest against her heir, even though the property was settled to her separate use. The principle of giving to the wife a complete power of alienation over separate property has never been applied to her separate estates of inheritance or quasi inheritance. In many cases the Court has refused to recognise this power : Harris v. Mott (1); Peacock v. Monck(c); Churchill v. Dibbin (d). It is a mistake to say that a feme coverte is treated as afeme sole, as to her separate property ; to some extent and for some purposes, this is true, but not so far as it is required to support the respond ent's case. Separate use is only intended to exclude the jus mariti; and as against that, the wife has an absolute power of disposition ; but that only applies to her life interests, and to personalty : Moore v. Morris (e); Newcomen v. Hassard 09. All the cases in which there has been any decision as to the power of the married woman to alien her separate property have been either personalty or estates for her own life, or estates where she had a power of appointment, as in Wright v. Cadogan (g). The opinions of the text-writers is altogether in favour of the right of the wife's heir-at-law. The only considerable exception is Lord St. Leonards, who, in his work on Powers (h), appears to maintain the power to assign ; but on examination of the cases to which he refers, it is plain that the case of the wife's freehold was not in his contemplation, when writing this passage. The law will not dispense with the formalities which it imposes on a married woman's transfer of her property ; and in this respect Equity follows the law : Las sence v. Tierney (i); Field v. Moore (k); Goodill v. Bingham (1); Doe d. Stephens v. Scott (m). (a) 4 & 5 W. 4, e. 92. (b) 14 Beay. 169. (c) 2 Ves. 192. (d) 2 Ken., pt. 2, p. 85 ; S. C., 9 Sim. 447. (e) 4 Drew. 38. (f) 4 Ir. Chan. Rep. 268. (g) 1 B. P. C. 486 ; S. C., 2 Ed. 239. (h) 1 Sug. Pow. 206. (1) 1 151`N. & Gor. 551; S. C., 2 H. & Tw. 115. (h) 10 Beay. 134 ; S. C., 2 Jur., N. S., 150. (1) 1 Bos. & P.192. (m) 4 Bing. 506; S. C., 2 Nev. & P. 317. CHANCERY REPORTS. 105 Baggott v. Meux (a) does not determine anything as to the power of the feme coverte. They also referred to Wall v. Byrne (b); Barron v. Barron (c); Hulme v. Tenant (d); Johnston v. Geraghty (e). Mr. Hugh Law and Mr. May, contra, in...