J. J. Malsburg, being indebted to one Samuel Ollendorff, in the sum of $10,000, executed a mortgage of the said lands to the said Samuel Ollendorff, to secure the said sum; and the said M. P. Malsburg joined in the said mortgage for the purpose of barring her dower. The said mortgage contained absolute covenants for title, including one for further assurance.

On December 23, 1873, the said last mentioned mortgage, was by deed assigned by Samuel Ollendorff to Alexander Sanders, the present plaintiff, and default being made in the payment of the money thereby secured, the plaintiff instituted a suit for foreclosure against the said W. J. J. Malsburg and his wife, and obtained a final order of foreclosure sometime before the commencement of this action.

Default, moreover, was made by the said Marie P. Malsburg, in the payment of the above mentioned mortgages to the Colonial Securities Company, of June 13, 1872, and the same were paid in part by the said W. J. J. Malsburg, and the balance by the plaintiff.

Subsequently W. J. J. Malsburg and his said wife departed this life intestate, leaving the defendants to this action their heirs-at-law, them surviving.

Doubts having arisen as to whether the conveyance of December 26, 1872, operated as a transfer of the estate in the said lands vested in Marie P. Malsburg to her husband, the plaintiff instituted this action for the purpose of removing these doubts by obtaining a conveyance from the defendants, or a vesting order by way of confirmation of his title.

By his statement of claim the plaintiff set out the above facts, and claimed to have the cloud on his title removed, and a declaration that he was entitled to a specific performance as against the defendants of the covenants for further assurance contained in the conveyances of Dec. 26, 1872, and Nov. 28, 1873; or a declaration that the estate, if any, of the said M. P. Malsburg in the premises in question passed by the deed of Dec. 26, 1872, to her hushand; or that if any estate or interest passed to the defendants

on the death of their mother, they might be declared trustees thereof for the plaintiff.

By their statement of defence the defendants set out the above mentioned ante-nuptial settlement entered into between their father and mother; and, amongst other things, submitted that the conveyance of December 26, 1872, was inoperative and void in law, both in the province of Quebec and in this province. They further charged the facts to be that their mother at the time of the said conveyance was without independent legal or other advice, and wholly unaware of her rights; and that upon this, if upon no other ground, the transaction should be be declared a nullity.

The case came on for hearing at the sittings at Toronto, on Wednesday, May 3rd, 1882.

No evidence was given to shew any unfair dealing between the husband and wife in reference to the conveyance of December 26th, 1872.

G. Morphy, for the plaintiff, referred to R. S. O. ch. 109; Allan v. McTavish, 28 Gr. 539; Bishop on Law of Married Women, secs. 713, 716, 717; Shepard v. Shepard, 7 John, ch. 57; Putnam v. Bicknell, 18 Wise 351; Hannan v. Oxley, 23 Wisc. 519; Kerr on Fraud, 48, 53; Rawle on Covenants, 4th ed., p. 401; Sidmouth v. Sidmouth, 2 Bea. 447. T. S. Plumb, for the defendants. The infants are

entitled to the benefit of any doubt. The plaintiff was informed of his position by registration: Lloyd v. Spillet, 2 Atk. 150; Lavin v. Lavin, 27 Gr. 567. Advancement in favour of wife is presumed: Lewin on Trusts, 7th ed., p. 163; Ogden v. McArthur, 36 U. C. R. 246; Glaister v. Hewer, 8 Ves. 198; Grey v. Grey, 2 Sw. 594; Kingdon v. Bridges, 2 Vern. 67; Christ's Hospital v. Budgin, 2 Vern. 683; Back v. Andrew, 2 Vern, 120.

May 10, 1882. BOYD, C.-The agreement between the intending husband and wife was executed in Montreal, and in the absence of any evidence to the contrary I must

assume that its legal operation and effect is such as would be given to it if entered into in this Province. By it the parties mutually agree that each of them shall separately hold, use, and enjoy, the real and personal property which either may acquire during the marriage whether by donation, succession, legacy, bequest, or by any title or way whatever, as his or her own separate and respective property and estate in every respect, and each is to have the whole and sole absolute management, disposal and administration of his and her separate and respective property and estate without the let or hindrance of the other.

This instrument is more explicit than the one referred to in Adams v. Loomis, 24 Gr. 242, and its effect is to vest the land then and subsequently held or acquired by the wife in her as proper separate estate to all intents and purposes. When the company in this case made a conveyance of the land to Mrs. Malsburg it became by virtue of the ante-nuptial settlement her separate estate with all the right and incidents pertaining thereto. A mortgage being given back to the company, this left in her the equity of redemption, which she had power to deal with and alienate as a feme sole. This she had as of right, by virtue of the equitable quality of the estate, without the aid of the statutes relating to married women, and without the concurrence of her husband: Adams v. Loomis, 22 Gr. 99, 24 Gr 242; Place v. Spawn, 7 Gr. 406; Pride v. Bubb, L. R. 7 Ch. 64.

This characteristic distinguishes the present case from Ogden v. McArthur, 36 U. C. R. 246, where the wife's estate was no more than the modified separate estate which is the offspring of the statutory law. In Ogden v. McArthur, the wife had no power of alienation except that conferred by the statute, which prescribes that the husband must be a grantor with her. He could not therefore take as grantee. But in this case the wife could conwithout the joinder of the husband, and there is no incongruity in his being the grantee.

vey

The language of Wood, V. C., in Vansittart v. Vansittart,

estate.

4 K. & J. 70, is a distinct recognition of the power of the wife to contract with the husband in respect of the separate Here the transaction does not rest in executory contract, but is completed by the execution of a conveyance to the husband. Though the technical learning as to the legal unity of husband and wife may require at law the intervention of trustees in their dealings inter se, yet the course of the Court of equity is to give effect to such transactions by holding the one a trustee for the other.

The most recent cases declaring this where the husband conveyed directly to the wife are Baddeley v. Baddeley, L. R. 9 Ch. D. 113, and Fox v. Hawks, L. R. 13 Ch. D. 822. In both these the settlement was a voluntary one on the part of the husband. Here the conveyance purports to be for value and has the usual receipt acknowledging the payment of the consideration. I see no reason why this rule applied to the husband should not apply conversely to the wife when dealing with her separate estate so as to convert her into a trustee for her husband. Here there is not only the deed to the husband, but it is followed up afterwards by the husband and wife joining in a mortgage to Samuel Oldendorff, in which Mrs. M. bars dower.

The deed to the husband purports to be for value. I think upon further consideration of R. S. O. ch. 109, seet. 2, that it may apply to this case, although the transaction was in 1872, so as to cast the onus on the plaintiff of disproving the payment of the consideration. See also R. S. O. ch. 110, sect. 10, sub-sect. 2, also Allan v. McTavish, 28 Gr. 547; Regina v. Guthrie, 41 U. C. R. 148.

No evidence is given to shew any unfair dealing between husband and wife. It is said that she was inops consilii, but there is no rule requiring me to assume anything against a transaction such as this completed and acted on with all the formalities: Grigby v. Cox, 1 Ves. Sr. 517; Essex v. Atkins, 14 Ves. 542; Nedby v. Nedby, 5 De. G. & M. 377. Upon the whole case as now presented I am justified in declaring the infants to be trustees for the plaintiff, and vesting in him all their estate in this land. The plaintiff should pay the infants' costs.

[CHANCERY DIVISION.]

GAIRDNER V. GAIRDNER.

Will-Vesting-Gift over- - Contingency-Parties—R. S. O. ch. 49, sect. 9.

A testator by his will, gave his homestead and certain personality to his wife, while unmarried for the maintenance and support of the family surviving him, until the members of his said family should respectively attain twenty-one, and afterwards for the maintenance of his wife for life. He then proceeded to give and bequeath all his other real and personal estate, not thereinbefore mentioned, to his executors in trust to dispose of and invest, and "upon my son Thomas attaining the age of twenty-one years, should he be my only child, in trust to pay to him and put him in possession of the said residue," but if there were more children, he directed that it should be divided amongst all, in the proportion of one part to a daughter and two parts to a son, to be paid to them, when they should respectively attain twenty-one. He then proceeded to devise to his son Thomas the homestead together with the household goods, etc., on the decease or second marriage of his said wife, should he have attained his twenty-first year. And in case his son Thomas should not survive him, or attain the age of twenty-one, or in case he (the testator) should have no other surviving child who should attain the age of twenty-one, or in case he should have no grandchild, his real and personal estate was to be divided in certain proportions among his brothers and sisters.

Thomas, the only child surviving the testator, attained twenty-two, and died without issue, leaving him surviving his mother who had not married again.

Held, Thomas took a vested estate, for that it did not appear that the testator intended it to be contingent either on his attaining twenty-one, or surviving his mother.

Held, also, the testator's intention was that the gift over should not take effect unless Thomas died under twenty-one, without leaving a child.

THIS action was brought by certain persons claiming as beneficiaries under the will of one Thomas Gairdner, and by the surviving executors of the said will. The defendant, Christina Gairdner, was the widow of the testator who had taken possession of and claimed to be entitled to all the real and personal estate of the said testator under his will, and under the will of Thomas Gairdner, the younger, the only child of the testator, who survived him. The other defendant was a daughter of a deceased sister of the testator. The provisions of the will in question aud the circumstances of the case are stated in the judgment.

The plaintiffs, in their statement of claim, submitted that according to the intention of the testator and the true construction of the said will, his property was in the event