Page:Harvard Law Review Volume 12.djvu/74

54 HARVARD LAW REVIEW. cestui is himself the settlor. Whether this rule should be relaxed in favor of a married woman was the question before the court. At one time, before any statutory alterations in the law of married women, the difficulty experienced in some jurisdictions was not in limiting the power of the wife to charge or to alien her separate estate, but in removing, in reference to such estate, her common law incapacity to bind herself by contract. Price v. Bigham, 7 Har. & J. 296, 317. The hus- band's control was expressly excluded by the terms of the settlement ; the wife was regarded as possessing no will of her own. Consequently, eifect was readily given to the clause against anticipation. If such re- straints are to be thus explained as a common-law disability of coveture which equity has not removed, it may well be urged, now that most of such incapacities have been abolished by statute, that the restraint on alienation should be enforced only when it would be effective if the cestui que trust were unmarried. Judged by this criterion, the clause prohibit- ing alienation, in the principal case, would as above stated be clearly inoperative. By this line of reasoning, it may, perhaps, be possible to support the decision, as well as similar adjudications in Massachusetts and Pennsylvania, yackson v. Van Zedlitz, 136 Mass. 342. In those States, apparently no distinction is taken between married women and persons sui Juris, so far as the validity of limitations on the power of alienation is concerned. If this view were adopted in jurisdictions in which spendthrift trusts have obtained no foothold, the clause against anticipation, even a settle- ment to the separate use of a married woman, would, of course, always be held invalid. This result has been avoided, and such restraints en- forced, on the ground that they are necessary to prevent the husband from obtaining the benefit of his wife's property by means of undue in- fluence. The historical development of the subject in England gave support to this theory. The doctrine of the separate use was established in that country long before the prohibition of anticipation was introduced by Lord Thurlow. Consequently, that restriction was looked upon as a further " violation of the laws of property," which could be justified only as necessary to protect the cestui from the threats or persuasion of her husband. TuUett v. Armstro?ig, 4 Myl. & C. 377, 405. This danger being equally great where the wife is herself a settlor, the question of the principal case has, without hesitation, been decided in favor of the restraint. Clive v. Carew, i Johns. & H. 199, 205. This English rule which allows a woman in contemplation of marriage to place her property in perfect security from the cupidity of her husband and from her own generosity, is more consonant with the spirit of our equity jurisprudence. It is remarkable that this protection which is granted in England, where restraints on alienation are viewed with hos- tihty, should be refused by those courts in this country which regard spendthrift trusts without disfavor. The result is an instance of the con- fusion which departures from settled principles of law usually occasion. Implied Reservation of Easements. — When a land-owner sells a portion of his estate by absolute conveyance, if no access remains to the part retained except through the part sold, all jurisdictions hold that a way is reserved or regranted by implication. This rule is based on the