The court reports of the case were long, and framed in highly arcane legalease of almost 150 years ago. So I asked Perplexity AI to summarise the case; this is what it produced.
Here’s a contemporary‑language summary of the key parts of M’Creery v Searight (Ch D Ireland, 29 June 1880) based on the available report extract.
1. Elizabeth M’Creery’s complaint
- Jane Whiggam died in January 1879, leaving Elizabeth M’Creery (the plaintiff) a legacy of £200, payable one month after death.
- Elizabeth was married to William John M’Creery; he had deserted her before the will, lived apart from her, and did not support her.
- Administration with the will annexed was later granted to Marcus Searight, who had enough assets but refused to pay the £200.
- Elizabeth sued in the Chancery Division for administration of the estate and for the £200 to be paid or settled for her separate benefit (i.e. not controlled by her husband), invoking the wife’s traditional “equity to a settlement.”
2. The defendants’ arguments
- Searight and the other next‑of‑kin initially disputed the validity of the will (alleging lack of testamentary capacity and undue influence by Elizabeth), but decided not to litigate this because the estate would bear much of the cost.
- Instead, the next‑of‑kin paid £30 to William John M’Creery in return for a deed poll in which he:
- Released the next‑of‑kin, the executors, any future administrators, and the deceased’s goods and chattels from the £200 legacy and any other claims.
- Appointed Marcus Searight as his attorney to consent to the “condemnation” of the will and to oppose Elizabeth’s attempts to prove it.
- The defence relied on this deed poll as a complete defence to Elizabeth’s claim: the husband, as the person legally entitled to her legacy at law (marriage before the Married Women’s Property Act 1870), had released it for consideration, so nothing was now payable.
3. The legal issues the court addressed
From the headnote and extract, two main issues were framed:
- Whether a husband who is living apart from, and not maintaining, his wife can nonetheless extinguish her equity to a settlement over a legacy by releasing it while still married, where the legacy is presently payable.
- Whether, where there is at that moment no legal personal representative of the deceased, a deed poll by the husband can validly “release” the deceased’s personal estate from the legacy so as to bind any administrator subsequently appointed.
4. The court’s judgment (in substance)
The Chancery Division held:
- A husband, even though separated and not supporting his wife, can by releasing a legacy bequeathed to her during marriage and already payable, extinguish her equity to a settlement out of that legacy.
- The personal estate of a deceased person who has, at that time, no legal personal representative can nevertheless be effectively released from liability for a legacy by such a deed poll; that release will benefit the eventual legal personal representative and can be pleaded as a bar to any later action for the legacy.
In practical terms, this meant that Elizabeth’s claim to have the £200 settled for her benefit failed: the court treated her husband’s £30 deal and deed of release as binding and destructive of her equitable claim.
5. The judges’ reasoning, translated
The reasoning (as summarised in the headnote and context) can be put this way:
- Under pre‑1870 law, a husband had the legal right to his wife’s personal property in possession and to her legacies when they became payable, subject only to the wife’s “equity to a settlement” in equity.
- That equity to a settlement is not an independent property right of the wife, but an equitable condition the court attaches so long as the husband is coming to equity to get the money; if he has already effectively dealt with or released the legacy, there is nothing left on which to fasten a settlement.
- The fact that the husband was living apart from the wife and not supporting her did not, in the court’s view, strip him of his legal power to release the legacy once it was payable; therefore his deed poll could extinguish both his own legal claim and her equity to a settlement.
- Even though, at the date of the deed, there was no legal personal representative, the court treated the deed as a valid release of the estate’s liability for the legacy “in rem”: it attached to the assets themselves and would automatically enure to the benefit of any later administrator, who could rely on it as a complete defence.
So, translated into contemporary language: the court applied strict 19th‑century coverture rules and a formal view of releases to hold that a deserting husband could sell off his wife’s legacy for £30 and that this transaction was binding against her, the estate, and the later administrator, leaving her without an enforceable claim to settlement of the £200.