Shephard, J.@mdashThis is an application with regard to certain funds held by the Official Trustee as trustee of the marriage settlement of Stella
Ernastine Dagmar Mantel. She and her husband have filed their petition in insolvency, and the question arises whether the said funds are affected
by the vesting order. According to Section 63 of the Act the vesting order operates on all property of a married woman ""over which she shall have
any beneficial power of disposition notwithstanding her coverture, to the extent of the benefit which she might acquire therein by the exercise of
such power.
2. It seems clear that the funds now in question are not Mrs. Mantel''s property in that sense, for the property is settled upon her for separate use
without power of anticipation. My attention, however, was called to the case of Hippolite v. Stuart ILR 12 Cal. 522 in which it was held by Sir R.
Garth and Wilson, J., that a creditor in respect of a debt incurred after marriage was entitled to proceed against the separate property of a married
woman, notwithstanding the restraint on anticipation. The judgment proceeds on the ground that as the provisions of Section 9 of the Married
Women''s Property Act (which are to the same effect as those of Section 12 of the English Married Women''s Property Act of 1870, and which
deal with ante-nuptial debts) have been held in England see Sanger v. Sanger L.R. 11 Eq. 470 to extend to such property, so Section 8 must
receive the same construction. The decision has been questioned in Bombay and, as it appears o me, with good reason see Cursctji v. Rstomji ILR
11 Bom. 348 I fully concur in the observations of Farran, J. in that case. To enact that a married woman may contract with reference to her
property settled to her separate use without power of anticipation, and bind it by the contract, is tantamount to saying that the restraint on the
power of anticipation is inoperative, and that cannot have been intended. Moreover, it is inconsistent with the provision of Section 10[1] of the
Transfer of Property Act, which provides that property may be so settled on a married woman as to prevent her from charging it. Full meaning can
be given to Section 8 of the Married Women''s Property Act without importing to the Legislature an intention to ignore conditions in restraint of
alienation which are distinctly recognized in the later Act. I cannot find in the English case anything to support the view which has been taken in
Calcutta. The authority is, as far as I can see, all the other way, unless I except the overruled judgment of Malins, V.C., in Pike v. Fitzgibbon L.R.
17 Ch. D. 454 See Chapman v. Biggs L.R. 11 Q.B.D. 27 and the judgment of Wills, J. in Bickett v. Tasker L.R. 19 Q.B.D. 7 In Pike v.
Fitzgibbon L.R. 17 Ch.D. 454 although no reference is made to the statute, the position of a married woman and her separate property as
considered in a Court of Equity, is explained by Cotton, L.J., in language which has equally application to the provision of the Act. The argument in
the case was that a Court of Equity would deal with a married woman who has separate estate as if she were a feme sole. On this Cotton, L.J.,
observes that this proposition is only correct if the distinction between a married woman and a feme sole with regard to the restraint upon
anticipation which may be imposed on the former but not on the latter is borne in mind. ""She is regarded as a feme sole only as regards property
which, under the trust, she is entitled to deal with as if she were a feme sole, but as regards property which she is restrained from anticipating, she
is not, as regards a person other than her husband, in the position of a, feme sole"" (page 464), He goes on to cite a passage from a judgment of
Turner, L.J., which concludes with the words ""She is considered in a Court of Equity as a feme sole in respect of property thus settled or secured
to her separate use."" Cotton, L.J., adds, ""that is to say as regards property which, under the trusts, she can dispose of and alienate, she is
considered as a, feme sole."" These observations, when applied to Section 8 of the Act of 1874, as they properly may be, make it to my mind
abundantly clear that the creditor''s right to be satisfied out of the separate property of a married woman is, in the case of post-nuptial debts,
restricted to the property as to which there is no restraint on anticipation, and that it was not intended to give married women the power of evading
such restraint as can be lawfully imposed on them. In the Consolidating Statute of 1882 I observe that Section 19 expressly saves property settled
on a married woman without power of anticipation, in so far as concerns post-nuptial debt.
3. For this reason, I am of opinion that the property comprised in the marriage settlement of Mrs. Mantel is not affected by the vesting order.
[1]
[Section 10: Where a property is transferred subject to a condition or limitation absolutely
restraining the transferee or any person claiming under him
Condition restraining from parting with or disposing of his interest in the property,
alienation. the condition or limitation is void, except in the case of a lease,
where the condition is for the benefit of the lessor or those
claiming under him: provided that that property may be transferred to or for the benefit of a
woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power
during nor marriage to transfer or charge the same or her beneficial interest therein.]
