A PRACTICAL TREATISE OF P o E R S. BY EDWARD BURTENSHAW SUGDEN,Esg, OF Lincoln's inn,, barrister at law. LONDON: PRINTED FOR W. REED, BELL YARD, TEMPLE BAR ; R. PHfiNEY, INNER TEMPLE LANE ; AND FLEMING AND PHELAN, UPPER ORMOND QUAY, DUBLIN* 1808. <«• T Printed by R.Wilks, Chancery-lanc. I PREFACE. liiE subject of the following Work embraces a very large portion of the law of real property. It is a subject which demands and must attract the conveyancer's peculiar attention : the con- nection and symmetry of its parts, while they ex- cite the admiration of the student, will amply repay the labour which the study of it requiresc As a work upon Powers has already been written, which has arrived to a second edition, it may be expected that some reason should be given for presenting theprofession with a new one. It may be thought to be a sufficient reason that Mr. Powell's Essay embraces but a partial view of the subject. But had that been the only ob- jection to the performance, his deficiencies might have been supplied without retreading his steps. The execution, hov/ever, of what Mr. Powell did a 2 attempt "yRf^s^on. IV PRETACK. attempt is not such as to invite to a study of the subject, or to IX adcr liis work practically useful. It is comriioa to meet with statements of facts, occupying many pages, which serve only to con- found the attention, when the precise point deci- ded might have been expressed in the same num- ber of lines. The errors in law, as well as in tlie statement of facts, are wry numerous, and in few instances, is much labour of research exhibited. The aiithor of the present volume, however, wishes it never to be forgotten, that as far as Mr. Powell did treat of the subject, he was the fust who attempted it. The writer deprecates too severe an examina- tion of his work from the preceding observations. It is more easy to criticise the works of others, than to write a better on the same subject. His pretensions to notice are, that it has been his endeavour to exhaust the subject: an indepen- dent and original view has been taken of every part of it ; the report of every case has been anxiously consulted; and nmch labour has been bestowed in examining reported cases, with the Register's books, and searching for cases not in print. PREFACE. V print. Tho writer has also attempted to treat of this abstruse and intricate learning in a familiar and practical way, to avoid bordcnsome state- ments of cases, and to introduce tlie points decided with as uiLich brevity as appeared to be consistent with accuracy and perspicuit}^ In no instance has he shrunk from the consideration of the difficulties which presented themselves, although, following Bacon's example, he has directed his endeavours rather to open the law upon doubts, than doubts upon the law. How far he has succeeded in this arduous attempt, it is for the Profession of which he is a member to decide. He has in common with others to plead as an excuse for any inaccuracies in so long a work, that it was written in moments snatched from the labours of his profession, wdth fevv op- portunities of taking a continued and connected view of the subject. Stone-Br.'ilding, Lincoln'' s~Inn^ 12th March, 1808. I I CONTENTS. CHAPTER I. OF THE NATURE OF POWERS BEFORE AND SINCE THE STATUTE OF USES ; AND OF THE SUSPENSION, EXTIN- GUISHMENT, AND MERGER OF POWERS, DERIVING THEIR EFFECT FROM THE STATUTE. Page Sect. 1. Of Powers before the Statute - 1 Sect. 2. Of Powers since the Statute - 7 Sect. 3. Of the Scintilla Juris in Releasees to Uses to serve Estates created under Pozvers - - - 1*7 Sect. 4. Of the several Kinds of Powers deriving their Effect from the Statute - 49 I. I. Appendant or Appurtenant - 49 2. Collateral or in Gross - 50 II. Simply Collateral - 51 Sect. 5. Of the Modes hy which Powers may he suspended, extinguished and merged 53 I. Powers simply Collateral - ib. II. 1. Suspension of Powers Appendant 54 2. Suspension of Powers in Gross 57 III. Extinguishment of Powers Appen- dant - - - 58 IV. Extinguishment of Powers in Gross 62 V. Cases common to both Powers - 66 yi. Merger of Powers Appendant or 7ft in Gross * *^ ' ' ** ft 4 CHAP* Till CONTENTS. CHAP. II. OF THE CREATION OF POWERS. Pago Sect. 1. Of the fVords by ivhich Foicers may he created - - - 92 I. What is a Poicer and not an Interest 94 II. Where Executors are invested with a Power only - - 99 III. Where a Feme Covert has an absolute Poiuer of Disposition - 105 IV. No Soleninities need be required to the Execution of a Power - 108 Sect. 2. Of the Instruments by tvhich Powers may be created - - - ill I. Of the Distinction between Deeds oper- ating by Transmutation of Possession, and those ivhich do not - - ib. II. Of Powers in Common Law Convey- ances - - - 11«5 III. Whether Poicers in Wills operate under the Statute of Uses - 118 IV. IFIiat Seisin to serve Powers should be raised - - - 123 Sect. 3. Of the Objects for ivhich a Power may be created - - - 126 Sect. 4. Of the Effect oj the Creation of Powers on the Estates limited in the Instruments creating them - -128 CHAP. CONTENTS. IX CHAP. III. BY WHOM POWERS MAY CE EXECUTED. Page Sect. ], Of the Legal Capacity of the Donee - 132 I. Married JVomen - - ib. II. Infants - - - 136 Sect.- 2. Of the JVords of the Instrument creating the Poiver - - 140 CHAP. IV. OF THIi TRANSFER OF POTVERS, Sect. 1. Of the Transfer or Delegation hy the Act of the Donee - - •• 144 ISect, 2. Of the Transfer or Delegation hy Acts of T ai Uaraent and the Act of Law . 148 CHAP. V. OF THE EXECUTION OF POWERS, Sect, 1. Of the Execution of Powers, particularly tvith reference to the Statute of Uses - 155 Sect. 3. Of the Instrument hy ivhich a Poiver may he executed - - - 173 Sect. 3. Of the Compliance ivith Conditions annexed to a Poiver - - 176 I. Where a particular Instrument is re- quired - - - 180 |I. A particulnr Mode of Execution - 195 III. Con^ X CONTENTS. Page III. Conditions not relating to the Instru- W£nt - - . - 205 Sect. 4. Of the Time at which a Power may he executed^ and of partial Executions 2 1 5 I." At what Time - - ib. II. Where repeatedly . - 221 Sect. 5. Whut amounts to the Execution of a Power, where the Donee has not an Interest in the Estate, and the Power is not referred to 22.5 Sect. 6. What amounts to the Execution of a Power, where the Donee has an Interest in the Estate - - 231 I. Where the Estate is conveyed generally 231 II. Where the Power is exercised, and also the Estate is conveyed - 236 Sect. 7. Of the Qualif cations luhich may he annexed to the Execution of Powers hy the Donees thereof - - 243 Sect. 8. Of the Effect of the Execution of a Power 255 I. As to the Instrument - - ib. II. As to the Estates created - 260 III. As to the Estates in the Settlement - 265 1 . A Poiuer of Revocation - - ib., 2. A Power of Appointment, with remain- ders in default of Appointment - 266 3. Poivers of Leaung, &c. - 26S 1* With reference to the Estates in the Deed creating the Power - 268 S. In regard to each other » 270. CHAP. CONTENTS. XI CHAP. VI. OF EQUITABLE RELIEF IN FAVOUR OF DEFECTIVE EXECUTIONS OF POWERS. Page Sect. 1. Of this Relief, ivhere there is a meritorious consideration in the Appointee ^ - 272 I. In favour of whom - - 275 II. In respect of the Defect in the Appoint- ment ' . - - 285 III. In regard to the Object of the Poiuer 295 Sect. 3. Of this Belief, where there is no meriioj'ious. Consideration in the Appoijitee - 302 I. In Cases of Fraud, /Occident, or Disability ib. II. In Cases of Election and Satisfaction 305 Sect. 3. Of JSon-execution - - - 315 Distinction betiueen mere Poivers and Powersin the nature of Trusts - 316 CHAP. VII. OF RELIEF AGAINST THE ACTUAL EXECUTION OF POWERS. Sect, 1. Of void Executions by the general Rule of Law - - - - 321 Sect. % Of void Executions in Equity only - 326 eHip; Xll CONTENT?* CHAP. VIII. OF RELIEF AGAINST POWERS. Page Sect. 1. Of the Relief ajforded hij the 27. Eliz. c. 4. against Powers of Revocation - 335 Sect. 2. Of the Person who may claim the Relief 341 CHAP. IX. OF THE ESTATES WHICH MAYBECREATED UNDER POWERS OF APPOINTMENT ; AKD oF LIMITATIONS IN DEiATJLT OF APPOINTMENT. Sect, 1. What Estates may he created in point oj Perpetultij - - 346 I. Under original Instruments - 346 II. Under the Execution oj Powers - 350 Sect. % Of the Construction of Poiuers in general 355 I. What Estates may he created - ib. II. The Construction of Limitations in In- struments executing Powers - 383 III. What Acts Poivers in general autho- rise - - - 387 Sect. 3. Where an exclusive jippointment is autho- rised - _ - 395 I. Where it is not authorised - 395 II. Where it is authorised - 896 Sect. 4 What is deemed an illusory Appointment 403 Sect. 5. Of the Construction of a Poiver to appoint to Children - . 412 I. To whom an u4ppointment may he made - : - ib. II. U CONTENT =, Xill Page 11. Inwhat Manner the Fund may he settled A-2.4t Sect. 6. Oj the Cunsiruction of a Power to appoint to Relations. - - 429 I. The Extent of the IVords Relations^ Kin- d ed, &c. - - 429 II. To whoTii an ^appointment may he made - - - 433 Sect. 7* Of Poivers to Jointure - - 435 Sect. 8. Of the Efect of an excessive Execution 443 I. To Persons not Objects - ib. II. Excess in the Quantity of Interest 457 III. Excess in the Conditions imposed 463 Sect. 9. Hoiv Estates go in D fault of or ivhere there is a had yJppointmeiit - - 46 J I. Particular Cases on Limitations in De- Jault of .Appointment - ib. II. How Estates go ivhere the ^'Appointment is had - - 471 CHAP. X. OF POWERS TO LEASE. Sect. I. Of the General Rules of Construction appli- calle to this Poiver - - 473 Sect. 2. What may he Demised under different Powers - - 477 Sect, 3« What Term may he granted - 490 I. Leases in Possession only - ib, II. Leases in Reversion, - - 491 III. Concurrent Leases - - 501 IV. Leases for Lives, - - 509 Sect. XIV CONTEN TS. Page Sect. 4. Of the Ptcnt to he reserved - 511 I. Of the Qiianlum - - ib. II. Of the Form of the Reservation - 514 Sect. 5. Of the Covenants and Conditions to be ob- served - - » 527 APPENDIX OF MSS, CASES, &c. No. 1. Case in the Reign of Henry the 1 th. • - 535 No. 2. appointment and Release to Uses to bar Dower - . - 539 No. 3. Hele v. Bond - - ^ 543 No. 4. Daniel \, Goodivin - - 547 No. 5. Mamell y. Price - - 548 No. 6. Lord Alvanlefs Observations on Hills v. Down ton - - 550 No. 7. Leach \. Campbell - - - 551 No. 8. Lane v. Terry - - 554 No. 9. Aleyn v. Belchier - - 555 No. 10. Scroggs V. Scroggs - - 575 No. II. PAe/p V. //ay - - 558 No. 12. Roberts v. Dixivell - - 562 No. 1 3. NeiLport V. Savage - - 563 No. 14. jEar/ ^j/ Cardigan v. Montagu - 565 INDEX - - - - 575 INDEX INDEX TO CASES CITED OR INTRODUCED. iVote, " V." follows the name of the plaintifFj '* and/' the name of the defendant. The Cases printed in italics are either cited or stated from MSS.; or have been examined with the register's books, or searched for without suc- cess. A. Page Abbot v. Burton b6, 89 Abel V. Heathcote - 388 y4lrahall and Lloyd . 124 Aburrow and Bennet - 227, 228 Aclom and Vanderzee 131, 256, 403, 404, 409, 410, 4Q7 Acton and Brian - 280 Adams v. Adams 244, 253, 412, 450, 458 Addy V. Grix - 200, 201 Adncy v. Field - 234 Albany's case - 6Q, 67 Aldborough (Lord) and Strat- ford 280, 295, 299, 303 Alexander v. Alexander 145, 264, 396, 400, 404, 41 1, 424, 425, 427, 428, 451, 455, 471 Jleyn y. Belchier - 329, 330 Alford V. Alford - 285, 287 Allanson v. Clitherow 436 Allen's ease - 2O8 Alsop 7. Pin* , sog Page Alwaters v. Bird - 203 Ambyo v. Gower - 317 Ancaster (Duke of) and Earl Tyrconnel 366, 437, 439, 441, 442 Andrew and Maddison 229, 3g5, 403, 408, 411, 419, 425, 466 Andrew and Manning - 22 Andrews's case - 120 Andrews v. Emmott 277, 228 Andrews and Mallison - 418 Andrews v. Waller - 280, 283 Annandale (Marchioness of) V. Harris - 322 Annas and Danne - 203 Anonymous (Mo. 45. pi. 138) 11/ Anonymou* (Mo. 6O8) 17,92 Anonymous (Mo, 6l2) - 55 Anonymous (Dyer, 283, a. pi. 30) - 147 Anonymous (Dyer, 314, a. pi. 97) - 1S4 Anonymous (Dyer, 369, pi. 50) 14 Anonymous XVI INDEX TO CASiZSi Page Anonymous (Dyer, 2/1, b. pi. 3) - 142 Anonymous (Dall. 58, ij1. 5) g5 Anonymoas(2 Leon 17B,3Le. 252, and -J Leon. 2:;3) 31 Anonymous (2 Lion. 220, pL276) - 1-42, 217 Anonymous (3 Leon, yi, pi. ] ■-■8,4 Leon. 41, pi. ]iO)94, 96, 182 Anonynftous (1 Cha. Ca. 24 1 ■ 2 ' 1 , i'54 Anonymoui (2 Freem. 224) 2/5, 2 5, 297, ?74. 458 Anonymous [ 1 P. VV ill. 327) ^-9> 430 Anonymous (Gi'bEq. Rep. 15) 30(5,313 Adonymous (Bunb 53) - 303 Anonymous [2 Kd. C. C. 6) g5 Anonymous (1 Slran. 53 4) 126, 252, 254 Anonymous (Lofft. 71) - 02 Anonymous (Excheq. 1806) 218 AnscoT.be and Baker - 125 Anson and Tud<.r, 976, 277, 280 Antrim (Lord) v. Duke of Buckingham - 134, 401 Antrobus and Morrice - 513 Archer's case - 30 Ardesoifev. Benret - 305,312 Arnold v Bedford - 430 Arthur and Warren - 147 Arundel V. Phi! pot - 207,315 Arundel (Lord) v. Earl of Pemb: oke - 364 Ascot and Blockvill 179, 20O, 3C4 Ascough and Evans - 504, !-06 Ashdown and 3tiieman - 342 Pagd Ashe and Halter - 4y6 A.sliton and Smith - 2/7, 292 yhkew and Carey - 310 Asiley and Evans - 348 Astou ai)d Culpepper - 212 Astry V. Astry - - 403 Atkin.son and Ellis - 106 Atkinson and Grayson 17O n. 204 Attorney General and Barring- ton - 100 Attorney General v. Berryman 145 Attc rney General v. Buckland 43 1 Attorney General V. Burdet - 179 Attorney General and Doylcy 145, 431 Attorney General v. Gradyll 54, 144 Attorney General v. Countess of Portland - 496 Attorney General v. Piye . 1/9 Attorney General v. Scott - 145 Attorney General and Thrux- ton - - 17s Attorney General v. Vigor - 229 Attorney General v. Ward - 471 Atwaters v. Birt 208, 253, 254 Auby V, Doyl - -371 Audley V. Audlcy - 317 Audley and Gee - - 453 Austin V. Austin - SqS Awdley's (Lord) case - 184 Awsiter and Dyer - 173 B. Backs and Wilkes - 171 Bacon and Mac Leroth 227, 432 Bacon v. Waller - 4g6 Bagnal and Downing - 330 n. Bagot iX] X TO CASES. XVil 480 2(54 123 280, ^Sl 421 9^ 3 13 - 2Q6 4S1 120 430 392 276 393 198 37 E^got V. Ought on Bain ton v. Ward Baker v. Anscombe Baker v, I?3rr(.-tt Baker and Sr^ith Baldwin v. Carv. r Baldwin v. Pole Ball V. BamfurJ Baltingia^s and Temple Baltinglnss (Lady) a .d Tris tram Bampfield and Popham Banks v. Brown Banks and Mills Barker v. Hill Barnard and Sitwell Barnard and Sprange Barnes's case (Hob.) Barnes's case or Barnes and Howell - ioo, 142 Earnston and Stackhouse 270 Barrett and Baker - 395 Barriqgtonv. Aftorney General iCO Harrington (Lord) and Freke 126 Barrow and Crompe 412, 425, 451, 456 Bartlet v. Rarasden Barton and Buckland Barton's case Bassett and Upton Bassett's case Bate and Kenivorthy, 363, 365, 398 Bath V. Montague 1/8, 3S4-, 303 Eathurst and Pack - 264 Baugh V. Haynes 480, 510, 51 i' Baugh and "Ward 307,313 Bax V. Whilbread - - 403 Baxter v. Dy-er - - 224 259 227 36 341 514 Page Eaylcy and Har'cness - 224 Bsyley v, Warbnvion - 133, 134 Bayly and Earl of Uxbridgc 63, 218 B;iyne and Pocklington 395, 401', 471 Br.ynes V. E-rlson 112, AQ?. Beale v, Beale 263, 334, 420, 423 Becle and Jones - 430 Bsane and Ithell - 276 B?aufoy's (Lady) case .• 285 Beaulieu v. Lord Cardigan 3I3 Beaumont and Ned bam - 341 Beaumont and Rich - 134, 15/ Beckett's case 244, 248, 250, 253 Beckvvith and Ludlow - 520 Bedford and Arnold - 430 Bedford and Carr4ll,431, 432,43l< Belch:er and Aleyii - 329,330 Bell V. Hvde - - 105 Bell and Scott - 342 Belly and Snijlh . 31 Belson and Eaj-nes - 112,492 Bennet v. Aburrow - 227, 228 Bennct and Ardesoife - 305, 312 Bennet v. Davis - 61 Bennet v. Honywood - 434 Benson v. Hodson - -77 Berry v. Riche - 492, 508 Berryraan and Attorney Ge- neral - 145 Bessie and Harris - 191, 372 Best and Stratton - 308, 334 Beverley's case - - 324 Bevil V. Rich - . 393 Bibell V. Dringhouse - 234 Bickerstafi^e and Goring - 235 Biggot V. Smyth - 31 Biles and Spring - 396, 429 Billing V, Earl of Macclesfield 2gO b Billingsley \T1II INDEX TO CASES. rage Billingsley v. Wells - 423 Bird. See Birt Bird V: Christopher • 67 Birde v Stride - 1?^ Birt and Atw aters 208, 253, 2rA Bixby V. Eley - 276' Blacket and Savile 62, 64, 67, 73, 335 Blackmore and Langstone - 420 Blacksfon nnd Lavender 33/, 3-13 Blake v. Bunbury - 227 Blake and Clarke - 420 Blake v. Foster - - 12 Blakeman and Hovey - 107 Blamire and the Mayor, &c. of Carlisle - 60 Blandford (Marchioness of ) v. Duchess of Marlbo- rough - 268, 438, 439 Blanfrey (Lady) and Sarth 276, 287 Blantern and Collins 322, 326 B'lith'scase - - 133 Blockvill V. Ascot lyg, 200, 304 Blount and Foone - 142 Boddington and Witts - 320 Boen and Yates - 324 Bolls V. Smith - - 31 Bond and Hele - 93, 2l5, 253 Booth and W^ird - 302 Bosworth V. Farrand - 268 Bovey v. Smith - 222, 369 Bov'.es' (Sir Ralph) case - 342 Boughton V. Boughtou - 310 Bould V. Winston - 30 EouUon and Brcers or Briers ^71 Bowles V. Bowles - 421 Eowmanand Dobbins S6, 122, 235 Bowman V. Malhewa . 212 Boycot V. Cotton - 39^ Boyle V. Bishop of Peterbo- rough 362, 40D, 4-19, 4QQ Bradbury v. Hunter - 285 Bradbury v, Wright - 438 Bradley v. Bradley - 276, 283 Bradstreet and Shannon 286, 289, 290, 301, 303, 49s, 512, 517 Bramhall v. Hall - 135 Brand's case - - 231 Breers. See Briers Brent's case - - 1 S, 20 Brereton V. Brereton - 211 Brett and Stribblehill - 32f5 Brewer and King - 343 Brewster v. Kitchen - 438 Brian v. Acton - 280 Brice v. Smith - 202 Briers or Breers v. Boulton 37 1 Brigham and Gocdhill 80, IO9, ISO Bristow V. Warde 145, 208, 370'^ 409, 412,424,425,418,451,471 Broadhurst and Butricke - 3 12 Broadmead v. Wood - 421 Bromehill and Cooke - 53 Bromley and Henfree - 322 Broom and Longmore320,4lO,4C7 Broughton v. Langley - 121 Brown and Banks - 4rS0 Blown and Chapman - 447 Brown and Herring 64, 69, 192 Brown V. Higgs - 317,318,402 Brown v. Jones Brown and Langley Brown and Parry Lrown V. Tavlor Brown and Wareh^m £42 241, 246 458 231, 364 S92 Bruce JND£X TO CASES. XIX Page Bruce (Lady) and Countess of Oxford - 294 BrudcncU v. Elwes 244, 412, 417, 420, 447, 450, 451, 456 Brunsden v- Woolridge, 431, 434 Bnckeridge v. Ingram - 310 Cuckhnrst's (Lord) case - 184 Buckingham (Duke of) and Lord Antrim - 134,491 Buckland and Attorney Ge- neral - 431 Buckland v. Barton - 227 Buckley and Earl of Stafford 92 Bvickmaster v. Harrop - lQ3 Buckworth t. Thirkell - 26/ n Buikeley and Ren - 59 Bull v.Vardy - 31.5, 3 19 Bullas and Watts - 276, 277 Buller and Mortlock 89, 280, 285 Bullerv. Waterhouse - 337 Bullock V. Sadlier - 341 Bullock V. Thorne, 55, 65, 68,222, 339 Bumford and Ball - 243 Bunbury and Blake - 22/ Bunting v. Lepingwell - 262 Burchett r.nd Durdant - 120 Burdet and Attorney General 179 Burg's (Lady) case - 207 Buri;es V. Mawbey - 256,314 Burgess V. Whcate - 310 Burgoigue V. Fox - 2i3 Burland and Bushell - 70 Burleigh and Ho't - 218 Burleigh v. Pearson 40J, 426,427, 463 Bailington (Earl of) and Lady Clifford - '27Q, 288 Burnaby v. Griffin - 105 Page Burnet v. Helgrave - 256 Burnet V.Mann - 134,187 Burrell and Burrell - 399 Burrough's case - - 20/ Burton and Abbot - S6, 89 Bury and Peyton - 111 Bushell V. Burland - 70 BushcU V. Bushell - 181,244 Butcher v. Butcher 327, 405, 412 Butler and Falkner - 257, 428 Butler and Salter - 16I n. Butler V. Stratton - 433 Butricke V. Bruadhurst - 312 Cadogan (Lord; and Wright 135 Calvert and Doe .. 459, 5C0, 501 Camelford (Lord) and Smith 130, 3 J 4, 409, 412, 425,448, 451, 468, 471 Campbell w Leach 234, 286, 29O, 29T, 458, 484, 487, 488, 498, 500,512, 514, 515, 519,523, 525, 52S Campbell v. Sandys I6I n. 5/9 Campion v. Thorpe - 484 Cardigan (Lord) and Beaulieu 312 Cardigan (Earl) v. Montagu 4.'/6, 4SS, 501,513, 514,515, 519, 520, 521, 530,521, 552 Carey v. Jshcw - - 310 Carlisle (Mayor, ,&c. of) v. BlairJre - 60 Carr v. Bearord4lI, 431, 432, 434 Carr and Sniilii - 324 Carter V. Carter 195,232,286 Carter and Hall . V393 Ci'rverand Enldwin - 421 b 2 Garvill XX 1N!)£\ TO CASUS. Page Carvillv. Cavvill - - 31/ Casson V. Doric - lOO CastKitoiiv.Sutber!3nd:35«,3S3,466 Caswall ^Expaile) - 227y~22.0 Cator anil Goodright - 54,56 Cavan (Lady) and Doe 181, 500 Cavan (I.ady) v. Pulteney 313 Cave V. Holfoid - 2GT Cavendish (LordGeorge) and Duke of Dtvonshire 30/, ."54, 412, 42.'), 4A6 Cazfnovc and I-kll - 4g3 Chadwick v Doleman 332, 421 Chambcrkiin and Cox 81,213, 236 Champnnon v. Chnmpernon '138 Chapman v Brown - 4i2 Chapman v. Emery 342, 341' Chapn^an v. Gibson 2^5, 276, 280, 281, 282 Chapman and Peat - 333 Cl-appel '-. Whitlodc - TOG, 3(33 Chester (Bishop of) v. Free- man - 504 Christopher and Bird - 67 Chudleigh's case - 24 ChmxhilLw Diihen 133, 227 n. Churchman v. Iljrvey - 3fi7 Chute's (T;orolhy) case 1 12 Civil V. Rich - ■* 403 Chi.e and Crossly . 420 Clarke v. Blake 420 Clarke and Doe - - ib. Claike V. Teriam - 323 Clarke v. Philips - 64 Clark- V, Pistor - - lO;j Clarke V. Turner - 411 Clayton's case - 495, 496 Cltre's (Sir Edward) case 80, 225, 231, L'85 Clenc V. NetiKship - S43 Clerk v.Pvwt 11 - 64 Clevton andVv'hihkon - 0'4 CLilbrd (Lady) v. Eailof P.ur- lington - 276, 2S8 Clillbrd and Probert - 304 Clinton and Pr.lk - 393 Clinton v. Seymour - S8(> Clithevow and AUanson - AoQ Clough and Jones I89, ig*?, 317 Cocktll and Rich 105, 258, SO6 £0) Coghill and Holmes 2C6, 265, 277, 316 Coke and Earl of ranl;er\illc 60;, £61, Z77 Coke's (Sir Edward) case 153 Cole and Higham - 4Q5 Cole V.' Bobbins - 323 Cok-raan v. Seymour iSl, 403, 42^ 423 Collins V. Elantern - • 322, 326 Collins and Hinde - - £42 Collir.s and White - 444 n. Collyer and Fox - 501, 502 ii. Colman and Cr-uwys 318, 432, 434 Colston V. Gardner 251,254 C(-ltu:ian and Dolin - 343 CgUou v. Nos/d.-is - 137 Colviie V. Parker - 342, 344? Combes's case - 145, 147 Commons v. Marshall - 459 Compton and Paul - 3l8 Compton and Yates - 100 Conway and Lord Walpole 129 Conway's (Lord) case - 464- Cook V. Duckenfield - 94 Cook V. Parsons - - 204 Cooke V. Brorachill - 58 Cook* INDEX TO CASES. XXI Cooke an si O^k Cooper V. Denne Cooper V. Forbes Corker v Ennys Page 223 - 4 533 420 fO Coinwaiiis (Lorj) :^.r.J. I.DiJells 222, if J 4 Corp and Slnrgis - Aj.i. Gotten and Forrester 3(-7, 303 Colter V. L:iv'jr 250. 233, 2 )2 Cottle and Yiuing - 247 n. Cotton and E'>ycf!t - 393 Cotton and Garth - 38 Cotton and l.nus. - - 120 Coventry v.C.)vcntry(P.Wm=!.) 2/6, 2S5, 2-7, 292 Coventry v. Coventry (Com.) 402, 514- Coventry (Earl of) and Hay 348 Coulson V. Coulson - fSG Coussmaker v Kidney - 312 Cowper and Stiles - 2EQ, £03 Cox V. Chamberlain 81, 213, 22o Cox and Grigby - lOo Cox's (Lady) ca^e - 32'2 Cragrave V. Peirost - 403 Croft V. Paw let - 202 Croft V. Slee - - 22/ Crofts and Middle ton - 2S0 Crompe V. Barrow 412, 425, 451, 456 Cross V. Faustenditch 112.337,342 Cross V. Kudron 86, 122, 235 Crossly V. Clare - 429 Cruwys V. Colman 318,432, 434 Cullv. Sho'Acll - 307 Culpepper v, Aston - 212 Cumbcrford's case - 482j 485 punningham v. Moody - 120 Cnrtis and Hatcher Cartis v. Price D. D;^ Ca;ta v. Vii'areal D.ic.e's case Dicre (Lady) V. Hazel D.idq and Ca-son Dalainere v. Sermon 245, 250 125 439 149 • 112 20 DaizcU and Duff - l^O, ig7 Daniel v. Goohvln - 258 D:ir;iei v. Ubley _ (Jo, 133, 173 Dannev.Annas - - 208 Darlington (Earl of) v Pol- teney - 181,308 Dav'ies V. Kcmpe - 383 Davi.; and Bsnnet - Bl Davison v Gardner - lf^5 Davy V. Hooper - 318 Dawding nnd Piippon - 136' Dawkins a;.d Witts - I06 Deardon and Ket-ne - 103 De Brittaine's (\Vr;liam)caie 153 n. Defnez and Isaac - 431 Deg V. Deg - - 22(5 Deg V. th; Earl of ALacclesfield 22S Denn v. Fearnside - 4Qd Denne and Cooper - 533 Dennison and Druce - 30S, 314 Denny and Dr^e - 2ig, 3/8 Devercux v. Moor - 184 DeviL-;ne V. Meliish - 430 Devonshire (Duke of) v. Lord George Cavendish 354,412, 425, 446 Dey. See Dye Dillen and Ckurchill 133, 2i7 n. b 3 Digges XXII INDEX TO CASES. Digges' case 53, 0/, 1/2, 1/8, 205, 221, 243, 253, 265 Dighton and Tliomlinson 68, ^4, 94, 96, 133, 173, 182, 396, 46\ Dike V. Kicks - - 212 Dime V. Munday - 179 n. Dix ani Hore - J20 lAxull or Dlxivell and Rul-crts Si i-, 362, 42/, 451, 463 Dobbins V. Bowman 86, 122, 235 Doe V. C.ilveit - 460, 500, 501 Doe V. Lady Cavan - 181, 500 Doe V. Clarke Doe V. Deiiny Doe V. Halcumbe Doe V. Hicks Doe V. Jv)invi!Ie Doe V. Lawson Doe V. Lloyd Doc V. IJannina 420 219>378 488, 510 125 432 434 511 338 n. Doe V- Martin 118, 129, 312,33 / I Doe V. Milboiiie Doe V. Morgan Doe V. IVarscn Doe v- Roa'Jcdge Doe V. ■'Jandham Doe V. Sno'.vdeu Doe V. Staple Doe v- Ur)der\vood Doe V. Watson Doe V. Vwuts Doe V. Wellcr - Doe V. Wiiitilicad Doidge and Duks Doleman and Cliadwiok 332, 421 Dolin V. CoUman - 043 Dormer V, Fortescne - 167 Dormer :;nd Guy - 226 222,303 100, 381 \ 341 i 206, 531, 532 I 500 136,217 j 3S3 ! 496 i 475 i - 129, 301 - 193, 195 I 423 Page Dormer v. Thurlnnd 176, I89, 201 Dorril and Roulledge 127, 2B7, 3'18.» 354, 420, 416, 449. 451, 454, 455, 4i57,47l Douglas V. Wsad - 312 Dou-ning v.Bugnal or Townsrnd 330 n. Doumton and Hills 2/6, 280, 281 Doyl and Auby - 31/ Doyley v. Attorney General 155, 431 Drake v. Robinson - 283 Drewe and Wiliian)s - 120 Dringhouse and Bibell - 23 h Druce v. Dennison - 3C8, 31 !■ Drum.mo7}d and JVlaley - 182 Diickenfield and Cook - Q*f Dudlie's (Sir Robert) cast^ Duff V. Dalzell - ic}u ju/ Dnke v. Doidge > 423 Dnr.t and Roe - - 379 Dnrclant and Burchett - 120 Dye and Thwaytes IO9, 363. 424 l">yer v, Awiiter - 173 Dyer and Baxtef - 221- Dycr and Savery - l63 n. i"!,ke V. Sylvester - 407 E. Earl and Rogu i ~ 29 1- Earle and liungerford ~ 337 Earsfield and SheUey - 26O liatington(Inhabitantsor}and ^ Rex - 91,92 Eaion V. Jaqncs - 60 Edge V. Sa'i'.bury - -131,433 Edgctombc V. Ivodcl - 322 Edwards INDEX TO CASES. xxm Page i Edwards v. Slater 57, 62, 64, 6/, j 72, 75, 127, 502 Eley and Bixby - 2/6 Elliott and Plele - 287 Ellis V. Atkinson - 106 Ellis and Knight - 449 Ellis V.Smith - 1/0 0.201^204 Ellison V. Ellison - 205 Elvves and Brudenell 244, 344, 412, 417, 420, 447, 450, 451, 456 Emery and Chapman - 342 Emery v. England - 423 Emmott and Andrews 227, 228, England and Emery - 423 Englefield and V/right - 135 Englefield's case - 150,152 Ennys and Corker - 60 Ennys and Vincent - 59 Evan and Stone - 60 Evans v. Ascough 504^ 506 n. Evans v. Astley - C48 Evans and Smith - 178 n. Evelyn v. Evelyn - 288, 393 Evelyn v. Templar - 343, 344 Ewer and Ross - 19O, 258 E>Te and Longford 110, 1/4, 196 F. Falkland and Litton - 229 Falkner v, Butler - 257, -^28 Farquhar and Mac Queen 203, 331, 388 Farrand and Bos worth - 268 Fauconberge and Fitzgerald 9^, 188, 223, 225 226 Faustendltch and Cross 112/ ->37, 342 ^canisidc and Denn - 4g6 b4 Page Fellows and Jermyn - 333, 422 Ferrars and Shirley - 264 Fettiplace v. Gorges - 105 Fettis and Yeolan - 55 Ficlis and Yelland - 55, 27 1 Field and Adney - 234 Finch V. Finch - 308 Fisher and Godwin - 292 Fitz V. Smalbrook - 111 Fitzgerald V. Fauconberge 92, IBS, 223, 225, 226 Fletcher and Hurd - 193,259 Fletcher and Makepeace - 384 Folkes V. Western 3M, 381, 467 Foone V. Blount - 142 Foot V. Marriot - 478, 482, -186 Forbes and Cooper - 420 Forrester v. Gotten - 307, 303 Foster v Graham - 27IO, 47Q Fortescue r. Dormer - 167 Fortescue v. Gregor - 286 Foster and Blake - 12 Fotheigill V. FothergHl 275, 276, 284, 2S5 Fowkeand Countess of Ros- Cummnn 67, 1 86, 225, 226 Fowler V. North 250,251,254 Fowler and Keily - 449 Fox and Burgoigne - 213 Foxv. Collyer . 501, 502 n. Fox \'. Prick vood - 268, 493 n. F^ampton v. Frampton - 226 Freeland and Sayle - 20-4 Freeman and the Bishop of Chester _ 504 Freeman v. West - 4gQ Freestone v. Rant - 276 Freke v. Lord Barrington - 126 Freke and Lewis - 39S Frestoo XAIV INDLX TO tAS£S. Page Freston and Thomson . 1 26 Fugitives (TJie) Case - 153 n. Funucan and Goodtitlc 4b4, 4Qb, 508,514,630 Fursaker v. riobinson _ 276 G. Gamlingay (Inhabiiants of) and Rex Gardiner v. Coltscn Gardner and Davison Gardner v. Savill Garfoot V. Garfoot Garnet and Fierson Gurrard a7:d JFarwick Garrett and Wigson Gar^ V. Cotton Gardi snd Phillips Gaunt and Target - . Gee V. Audley Geary and Lord Kilmurry George V. Lousley Geoige V. Millbanke Geirard and Wigson Gibbons v. Moulton Gibson and Chapman -40/ 23 \, 254 10.5 209 217 420, 423 114, 128 OS 38 432,433 318 Page Goodright v. Cator - 54, 56 Goodright V. IVioses - 342,344 i Goodtiile V. Funuc>-;n 43 I, 408, 5r-S, 514,530 Goodtit^e V. Jones - 12 Goodiirle V. Otway - Q7 Goodtitle V. Stokes - 384 Goodtitie V. Pettoe 112, 1 1 4, 12H GGcdiiinancl^Dardcl - 258 Goodwyn V. Goodwyn Gordon v. Levi Gorges and Fettiplace Goring v. Bicker.-^taffe Goring V. Nash Govv-an and Marston Gower ind An:by Gower v, Mainwarins 453 393 226 265 68 133 275, 276, 2€0, 281, 282 Gibson v. Kinven 396, 403, 4 10 Gicr V. Osseter - 1^3 Glyn and Harding 3 17, 429, 434 Godolphin v. Godolphin 123, 353 Godolpkin (Lord) and Luke rf Marlhorou<^h I61 n. 256, 261,318,385 Godwin v. Kilsha or Fisher 277, 283, 292 Goodhill V- Brigham 80, 109^ 130 Goodinge V. Goodinge -431,433 Geodiich and Sheddon - 310 - 277 131 105 235 277 277 317 430,431, 432, 434 Gradyll and Attorney General 54, 144 Graham and Forster - 276, 476 Graham and PL'irris - 133, 2l6 Graham v. Lord Londonderry 423 Grayson v. Atkinson 179 n. 204 Green and liele - 374 Green v. Howard - 429, 433 Green and Prince - 112, 294 Green V. Proude - 184 Greenbank and Hearle 137, l-9> Greenvil and Pollard - 276 Greenwood v. Greenwood - 433 Gregor and Fortescue - 286 Gregson and Swift - 3d Burnaby - 105 Griffin v. &'>anhope 1 1] , 337, '^42 Griffith INDEX TO CASES. XXV Page 415, 4'ri5 105 20a. 201 226 317 Griffith r. Harrison Grigby v. Cox Grisand Addy Guy V. Dormer GwiJliams v. Rowel H. Haberghani V. Vincent 110, 184, 235 Halcombe and Doe - 488,510 Hales y. Margerum - 94, 227 Hales V. Risley - 30, 37 Hall and BramhaU - 1 35 Hall V, Carter - 3 93 Hall V, Cazenove - 4ij8 Kali V. Kail - - 437 Hall V, Hewsr - 423 Hallett and Pinnell - 43g Iiahey and IVoodtuard - 181 Hamilton (Duchess of) v, Mor- " daunt - - 519 Hammond and Hutcheson 50, 53, 211 Hammond. and Roach - 42y Hand3 v. Hands - 429 Hands v. James - 202 Karcourt v. Pole - 494 Hardcas tie and Robinson 347, 380, 44G, 455, 404 Hardie and Jennor - 96 Harding y. Glyn 317, 429, 434 Hardman and Omerod - 393 Hard win v, Warner 149, 152, 191 Hardy and Pawlyn - G Harkness and Bayley - 224 Harris and Marchioness of An- nandale - 322 Harris V. Bessie - - 191,372 Karris V. Graham - 133,210 Page Harris and Jones - 103 Harris and Whitcliorn - 430 Harrison and GriiSth - 415,44^ Harrison v. Harrison - 200 Karrop and Buchmaster - 108 Han/ey and Churchman - 3(37 Hasting's (Dame) case 1 73, 244 Hatcher v. Curtis - 245, 256 Hatt3r y. Ashe - 406 Hatton y. Jones - 3-i4 Hawkins y. Kemp 145, 1/7, J 78., 193, 203,205, 21Q Hawkins V. Leigh - 230, 2Si Hawkins and Shecomb or Slo- comb - 491 Haworth and Legard - 4Qy Hay y. Earl of Coyentry - 348 Hay and Phelp 124, 357, 369, 386, 445 Haynes and Baugh 430, 510, 514 ' Hayward and Page - yQ Hazel and Lady Dacre - 112 Hearley. Greenbank 137, 130, 3O9 Hearle and Randal - 97 Heath and Oke - 256, 257, 260 Heathcote and Abel - 388 Hele V. Bond - 93, 245, 253 Hele y. Green - - 374 Hele y. Hele or Elliott - 287 Helgraye and Burnet - 256 Hemlocke and Heneage - 423 He neage y. Hemlock - ib. Henfree y. Bromley - 322 Herring y. Brown - 64, 69, I92 Heryey v. HeiTey 66, 222, 276, 278, 285, 365, 366, 435, 436 Hesse y. Steyenson - 108 Hewer and Hall - 423 He^rit XXVI INDEX TO CASES. Pa^e Hewit V. Hewit - 209 Heyns v. Viliars - 29, 33 Hicks and Doe - 125 Higgsand Brown - SI/,' 318, 402 Higham v. Cole - 4y5 Hill and Barker - 2/6 Hill V. Spencer - 322, 223 Hills V. Doivnion 276, 280, 281 Hilton V. Kenworthy - 3l6 Hinchinbr )ke (Lord) v, Sey- mour - 215,3(51,377 Hirichliffe V, Hincliliffe - 314 Hinde v. Collins - 342 Hinton v. Toye - 264 Hixon V. Oliver - 3l6, Add. Hixon V. Wytham - 184 Hobert and Popham - 212 Hockley V. Mawbey - 354 Hodsden V. Lloyd - 136,217 Hodson and Benson - 77 .Hole and Thomas - 433 Kclford and Cave - 26/ Hollingshead V. Hollingshead 137 I-Iolmes V. Coghill 236, 265, 277, 316 Holmes and Wilkes 109, I96, 276, 292, 293 Koltv Burleigh - 218 Holt V. Ko!t - 289, 4-12 Honeywood and Bennett - 434 Hooper and Davy - - 318 Horde and Taylor - 476, 5^9 Hore V. Dix - 120 Kornsby and Simpson - 21)0 Kor'.on and Nannock 07, 227, 228 Hoskins and CoUon - 13/ Hotley V. Scot - J96, 525, 527 Hovey V. Blakeman - 107 Houeil and Barnes - 100, 142 Page How V. "Whitfield - 146, 520 Howard and Green - 429, 433 Hubbard's case - 186 Hudson and Cross 86, 122, 235 Hudson's case - 200 Hughes V. Hughes - 421 Huish and Morei - 105 n. 106 Hulme V. Tenant - 105 Humberston v. Huniberston 444 n. 446 Humphrey v. Taylour - 453 '- Hungerford v. Earie - 337 Hunter and Bradbury - 285 Huid V. Fletcher - 193, 25(> Hurst V. theEarlofWinchelsea 257 Hussey's case - 225. Hutchesonv Hammond50i53,21I Hutchinson and Moulton 227, 228 Hyde and Bell - 105 H3de V. Price - 107 Hyer V. Wordale - 317 Hylton and Pamsden - 343 I, Ilchester (Earl of) exparle - 310 Ingram and Baekeridge - 310 Ingram v. Ligram 145, 147, ^^7 fngram V. Parker - 1/5 John (Lord St.) v. L.idy St. John - 343 I-ar.c V. Defricz - 431 Ithell V. Beane - 276 Ivers V Ivcrs. ■» ^ 279' Jackson v. Jackson Jackson and Madoc 287 131 Jackson INDEX TO CASES. xxvn Page Jackson and Pitt 425, 445, 446, 468 Jackson and Sainderson - 200 Jackson and Trimmer 184, 201 James and Hands - 202 Jaques and Eaton - 60 Jekyll and Williams - l6l n. Jenkins v. Keymis 62, 337, 359, 365 Jenner (Sir Andrew) and "'.umpton - 222 Jennings and Lodge - 204 Jennings v. Moore - 2/6 Jcnnor v. Hardie - gQ Jcrmyn V. P"ellow3 - 333,422 Jevers v, Jevers - 279 Johnson v. Mason - 1^1 Joljnson V. Medlicot - 323 Joinviile and Doe - 432 Jones v.Beale - - 430 Jones and iirown - 342 Jones nj. Clougli - 180, 196,317 Jones and Goodtitle - 12 Jones V. Harris - 108 Jones and Hattoa - 344 Jones V. Lake - 204 Jones (Sir Samuel) v. the Coun- tess of Manchester 251 n. Jones V. Marsh - 342 Jones V. Verney 475, 527, 529, 531 Jones and Lady Vernon - 223 Judd V. Pratt - 308 K. Keene v. Deardon - 103 Keighley and Malim - 395 Keiley v. Fowler - 449 Jiellet and Bishop of London 147 Page Kemp and Hawkins 145, 177, 173, 193, 203, 205, 210 Kempe and Davies - 383 Kempe v. Kempe 396, 404, 408, 410 Kendrick and Wilmer - 294 Kenworthy v. Bote 363, 365, 398 Kenworthy and Hilton • 3l6 Kenyon (Lord) and Myddleton 344 Kenyon v. Sutton - 84 Kett and Parker - 232 Kettle V. Townsend - 276, 280 Keymis and Jenkins 62, 337, 359, 365 Kibbet V.Lee - 178,186,243 Kidby and Luther - 83 Kidney v, Coussmaker - 312 Kilmurry (Lord) v. Gaery - 893 Kilmurry (Lord) v. Grey - 13/ Kilsha V. Godwin or fisher 277» 283, 292 King (The) see Rex King V. Brewer - 343 King V. Meliing - 67, 72, 232 King and Rees - 523 Kinven and Gibson ogQ, 403, 410 Kitchen and Brewster - 438 Knight's case - 525 Knight V, Ellis - 44g L. Lake and Jones - 204 Lambe and the Earl of Salis bury - 256 Lane v. Cotton • 120 Lane v. Page - 329, 330 Langham v. Nenny - 22/ Langley and Brougliton - 121 Langley v. Brown - 241, 245 Langstono XXVIll INDtX TO CASES. Langstone v. Blackmoie - 420 Lassclls V. Lord Coinwallis 222, 264 I^ivenderv. Blackstone 33/, 3 J3 Laurence v. Wallis - 256 Lawson aud Doe - 434 Layer and Cotter - 256, 283, 292 Leach and Campbell 234, 286, 'iQO, 29;, -458, 484, 4^7, 488, 498, 500, 512, 5:4, 515, 519, 523, 515, 523 Leach and Thompson - 325 Leake v. Leake Leaper v. Wroth Lee and Kibbet Lee V. Libb Lee and Vincent Lee's (Sir Richard) case Leech V. Lf. ech - -^ 421 490 17s, 185.243 J/8n. 141 221 3i2 Leeds (Duke of) and Pugh 436,497 Ledger and Sands - 49 1 Legard v. tLiworth - 4'i7 Leicester's ^Earl of) case 68, 1 92, 233, 243 I-eigh and Hawkins - 280,231 Leigh V. Winter - 66, 33/ Leighton and the Bishop of Oxford - 92, 140. 166 Lemaine v. Staneley 178 n. 200 Lemaine's case - 385 Lenthal and Ward 179, 250, 254 Lepingwell and Bunting - 262 Lestrange V. Temple - I89 Lethbridge aud Somerviiie 444 n. Levi and Gordon - - 131 Lewis V. Freke - 393 Lewson v. Pigot - - 516 Libb and Lee - 17s n. Liefe v. Saltingstone 94, 355, 396 Limlery and Alason . 320 Lincoh) (Lady) V. Pelham - 421 Lineham and Thredneedle - 505 Lisle T. Lisle - - 2.':6 Litton V Falkland - 229 Loyd V. Ab ahall • 124 Lloyd and D.iC - 511 Lloyd aud Hodsden 136.217 Lnck V, Loggin - 142 Loc'.on V. Locton - 31/ Lcderv. Lc'der - 423 Lodge V. Jennings - 204 Logan and Mac Adam 140, 21 6, 283 Loggui and Lock - ^ 142 London {Bishop of) nndKellet 147 Luudcnderry (^Lord) and Gra- ham - 423 Loudonderry (Lady) v. Wayne 436, 438, 439, ^40 Long v. Long 307, 360, 365, 409 Longford V. Eyre 110, 1/4, IgS Longmorev. Broom 320, 410, 46?. Lousada and ?.Tocat!a - 4t.6, 40g Loveday and Winter 372, 484, 488, 494 Lovic's (Leonard) case 129, 356 Loasley and George - 226 lowson V. Lowson - 227,41/ Lowson and Supple - 434 Lowtherv. Troy - :600 Ludlow V. Beckwith - 520 Luther v. Kidby - 83 373 Lutwich V. Piggot M. Macdesfe'd (^-rl of J and Billing . 290 Macclesfield (Earl of) and Deg228 Macey v. .Shurmer - 396 Mac Adam v. Logan 140, 2l6, 283 Mac Cul- INDEX TO CAZE: XKIX Mac Culioughand Mac Genuis 323 MacGennii v. M-ic C-al!ougli 322 Mac Lean v. Rutter - 30/ J-.Iac Laroth v. Bacon - 227^ 432 r./acnab ana St.-u'iden - 228 Jilac Qu^en v. FarquJiar 203, 331, , 383 Maddiion v. An'rc-.o 22g, 3g5, 403, 403, 41 i, 419, -^25, 466 Madoc V. Jackson - 131,313 Mahonv. Savage 399, 429,43 1,1 34 Mainwaring and Gower 430, 431, 432. 43^ Makepeace v. Fletch-er - 384 Maliin V, Keigjiley - 395 Mnllison v. j-indreivs - 418 Manchester (the Counte s of) and Sir Samuel Jones 251 n, Mann and Burnet - 134,187 Manning v. Andrew - 22 Manning and D)e • 338, n. Mansell v. Manse'.l 1/8, 208, 209 Mansdl v. Price 26O Marbury and Tarback 265, 337 Margeram and Hales - QA., 227 Marlborough (Duchess of) and Ivlarchloness of Blandford 283, 438, 439 ilarllojough (Duke of J 'v. Lord Godolphin 161 n. 255, 261, 318, 3S5 Marlborough (Eukeo'") and Lord Spencer 127, 348,44(3 Marriot and Foot 478, 482, 4S6 Marsh and Jones - - 3i2 Marshall and Commons - ' 459 Marshall and Stroud - 324 Marston v. Gowan - 277 Martin ai)d Doe 118, 129, 212,337 Taga Marsha m or Mo:elie?.d and Te ers - 30(), 462 Mason and Johnson - 171 Mason v, Limhry ~ 320 Mathews and Bowman - 212 Mauiidrell v. Maundrell 73, 229, 234, 238, 267 Mawbey and Barges - 256,314 Mawbey and Hockley Mediicot and Jjhnson Mcdwm and Sandham MeLing and King - Mellish and Devisrae 354 323 67, 72, 232 430 Men;:e)' v. Walker 396, 403, 47 1 Merlott and Tapaer f.'iddleton v. Crofts Middieto?! and Pryor Milbanke and George Milborneaud Doe Mildmay's case - Mills V. Banks Mills and Parsons Milward v. Moore Mitfovd V. Llicford Mitcon snd Roe Mocaita v. Lousada Mohun and Orby Mordc and Peacock Montague and Bath 178, 284, 303 Montagu and Earl of Cardigan 476, 4S8, 501, 513, 514, 515, 519, 520, 521, 530, 531 Moody and Cunningham 129 Moor and Devereux Moore and Jennings Moore and Milward Mordant (Lord) v. Earl of Peterborough 55, 20Q Mordauntj 384 260 364 - 265 - 222. 393 112, 114, 377 393 112 142 - ^ 289 3 i3, 344 406, 409 144, 517, 522 82, 105, 135 184 276 142 XXX INDEX TO CASES. Page Mordaunt and Duchess of Ha- milton - 519 Mordaunt and Noys - 300 Morehcad or IMarshara and Peters 366, 462 Mores v. Huish 105, n. ]06 Morgan and Doe - ]90, 384 Morgan and Prolerl 230, 440,451 Morgan and Randall 342 Morrice v. Antrobus - 513 Morris V. Preston - 371,3/5 Morris and Venables 125, 263 Mortlock V. BuUer 89, 280, 2S6 Moselyv. Mosely - 411 Mosely and Yate - 312 Moses and Goodright 3'i2, 344 Mosley and Mosley ■: 269 Moulton and Gibbons . 133 Moulton V. Hutchinson 227,223 Mount and Wilson - 305 Mountjoy's (Lord) case 480,515 Mowbray and Rayner - 429 Monday and Dime 179, "• Myddleton v. Lord Kenyon 344 N. Nairn v. Prowse - S12 Nannock v. Horton 97, 227, 228 Nash and Goring - 227 Nashe and Read - 501,516 Nedham V. Beaumont - 341 Nenny and Langhani - 227 Nettleship and Clerk - 313 Newland and Reresby . 131,210 Newman and Thorne - 207 Newman v. Whistler - 106 Newport V. Savage . 368 Norfolk's (Duke of) esse 149 Pag.^ North and Fowler 250, 25 i, 254 Northampton's (Marquis of) case - - 491 Novthmore and Countess of Sutherland - 210 Notts V. Shirley - 84 Noys V. Mordaunt - 305 t O. Oflley and Scrope - 62, 333 Ogle V, Cooke - 223 Oke V, Heath - 2 16, 257, 260 Olive and Stephens - 343 Oliver and Hixon . 3l6, Add. Omerod v. Hardman - 393 Omly and Stamford - 290 Opy V. Thomasius - 49 1 Oiby V. Mohun - 144, 517, 522 Ord and Palliser - \4Q Ormond's (Earl of) case - 183 Osborn v. Rider . - 4Q(y Osseter and Gier - 178 Otvvay and Gondtitle - 97 Oughton and Bagot - 480 Outon V. Weeks - 111 Owen and Saunders - 173 Owen V.Thomas - 5]() Oxford (Countess of) v. Bruce 294 Oxford (Bishop of) V. I-eigh- ton - 92, 140, \Qij Pack V. Bathurst 26 1 Page V. Hay ward 7d Page and Lane 320, 330 Paget and Wads 292 Palk V. Clinton 393 Palliser v. Ord 146 Palmer's IJiDEX TO CASES* XXXI Page t^almer's (Sir Thomas) case 3b' Parker v. Sir Edward Clere 80, . ' . 225, 231, 285 Parker and Colville 342, 344 Pai4cer and Ingram - 175 Parker v. Kctt - 232 Parker v. Parker 292, 4ol Parker v. Sargeant - 344 Parkes v. White ' 6I, 106, 108 Parkhurst v. Smith - 38 Parrot and Priest ■» 322 Parry v. Browne - 458 Parsons and Cook • 234 Parsons v. Mills - 112 Partington and Pomeroy 482 Paulv. Compton - 318 Pawlet and Croft - 202 Pawlett ; see Pou'ett Pawlin V. Hardy - 6 Peach V. Philips - 224 . Peacock v. Monk 82, 105, 135 Peacock and Pena - 60 Pearson and Burleigh 400, 42G» 427, 463 Pearson and Doe - 95 Peat V. Chapman - 383 PeirceandTylley - 186 Pelhamand LaJy Lincoln 421 Pelham and Pitt - 3J7 Pembroke (Earl of) and Lord Arundel - 364 Penn v. Peacock - 60 Penrice and Piggot 1/6, 179, 277 302, 303, 304, 315 Periam and Clarice - 323 Perkins v. Walker - 222 Perrostand Cragiave - 403 Perrot's case - 35, 63 Perry v. Whitehead - 276 Page Peterborough (Bishop of) and Boyle 3S2, 408, 410, 466 Peterborough (Earl of) and Lord Mordant 55, 2O9 Peters v. Masham or More- head - 366, 462 Pettiward v. Prescot - 305 Petloc and Goodtitle 112, 114, 128 Peyton v. Bury - 141 Phelp V. Hay 124, 357, 369, 386, 445 Philips and Clarke - 64 Philips V. Garth - 432, 433 Philips and Peach - 224 'Ph'lpot and Arundel 207, 315 Phitton's case - - 62 Pierson v. Garnet - 420, 423 Pigot and Lewson » 5l6 Pigot's case - - 322 Piggot and Lutwich - 373 Piggot V. Penrice I76, I79, 277, 202,303,304,315 Piggot and Wilson 2S6^ 40i. 408, 47 i Pike V. White • 281 Pine and -^Isop - 509 Pine V. Pine - - 112 Pinnell v. Hallett - 43^ Pistor and Clarke - IO6 Pitt V. Jackson 425,445, 446, 468 Pitt V. Pelham - 317 Pocklington v. Bayne 395, 404, 47 1 Po'e and Bald-win - - 9*^ Pole and Harcourt - 49 1 Pole V. Lord Somers - 308 Pclhil and Ware - 127 Pollard V. Greenvil - 27G Pomery v. Partington - 482 Popham V. Bampficld - 120 Pophana xxxu INl.EX TO CASES. Pophtini V. Hobcrt - 2V1 Tophmn and Hattle - 30/ Portland (Couutcss of') and At- rcrney G. ntr.il 4Qo Fou 'etl V. Earl Pouldt 4 1 0, 427 Puulsoti V. Weiiingion - 195 Pratt and Jadd - - 308 . Prescotl and Petiiward - 305 Frfston and Morris - 3/1,37.5 Price and Curtis - 125 Price a: d Hyde - 107 Price and Aiansel! - 260 Priokvvood and Fox 2^"^, 4^3, n. Priest V. Parrot - - 322 Prince v. Green - 112, 2') !■ Prohert v. Morgan 230, 3Ul', InlO, 46 1 Prcude and Green - 1S4 Prowse and Nairn - 3rJ2 Prior and Middleton - 304 Pugb V. The Duke cf Leeds 4{}6, 4^)7 Pulteney and Lady Cavan 313 Pulteney aud Earl of Darling- ton - 181,306 Pybu> V. Smith - lOG Pywell and Clerk - 64 Q. Quincey and Scrafton - 259 R. Ramsden v. Bartlet - 2.39 Ramsden v. Ilyltoa - 3 12 Randal y. Hearle - - 97 Randall v. Morgan 242 Rant and Frc-rstor.e - 27^ Rattle V. Fophnm - 30/ ri:n ner v. Mowbray - . 42^ Rawlin.s find R.oe - ^11^ Rcadv. Nasb - 501, 5 iQ Reade v. Reade 131 , 320, 333, 466, Rees V. Kin^ - 528 Rcid V. Shcrgold 97, 1S2, 256, 276, 295 Ri^ignold and Wood - 36 Hen V. Buikeley - 59 Rcresby v. Newland 131,210 ReK V. Inhabitants of Eating- ton - 9I; 92 Rex V. Inhabitants of Gam- ling.iy - 4£;7 Rex V. Marquis of StaiTbrd 357 Rich V. Beaumont 134, 157 Rich and Bevil - 39S Rich and Civil - - 403 Rich V. Cockell 105, 258, 306, 309 Riche and Berry - 492, 508 Ricks and Dike - 212 Rider and Osborn - 4Qo Rigden V. Vallier - 384 Right V. Thomas 17S, 460, 513 Ripley V. Waterworth I6I, n, Rippon V. Dawding - 136 Risley and Hales - 30, 37 Roach V. Hammond - 429 Roach V. Wedham 86, 237, 261- Robbins and Cole , - 323 Roberts v. Dlxali 211', 362, 427, 451, 463 Robinson and Drake - 283 Robinson and Fursaker 276 Robinssn v. Hardcastle 347, 386, 446, 455, 464 Rochiort INDEX TO CASES. XXXiU Page Kiichfart 3nd SperVn^ - 30S ilodJ and EJ-ecorBbe - 322 Roe V. Divn - - 379 Roe.v. M'tton - 3-i3, 344 Rye V. Rawlins . - 51 1, n. Roe v. Archbishop cf York 235, 322,^00,511 PvOgers's case - - 233 Rogers v. Earl - 2Q4 Roscommon (Countess of) v. Fowke 67, 186,225,223 Rois V. Ewer - 190,259 Routledge and Doe - 341 Routlcdge V. Dorril 12/, 287, 343, 354, 420, 446, 449, ^Jl> ^^54, 455, 407,471 Rowel and Gwilliams - 317 Rumbold v. Rambold 30.5, 312, 313 Russell V, Stokes - 13 Russell and Strode - 277 Rutter V. Mac Lean 307, 308 Ratter and Wright ib, ib. Rye and x\ttorney General 179 Sadlier and BuUock - 3il Salisbury and Edge - 431,433 S.*lis.bury (Earl of) v. Lambe 250 Salter v. Butlei; - - iGl, n, Saltingstone and L-efe 94, 355, 396 Sammes' case - - 117 Sandham and Doe 29G, 531, 532 Sandham v. Medivln - 2Q6 Sands V. Ledger - 49 1 Sandys and Campbell 16 1, n. 381 Sandys and Tomkyn - 315 Page Sargfson v. Sealey 273, 277, 255, 292 Sarth '.'. Lady Blanfrey 275, 23/ Savage and iNIahon £99, 429, 431, 434 Savare and Neivpoit - 3J3 Savery v. Dyer - 163, n. Savil V. Sterling - 209 Savile t. Blacket Q2, Qi, Q7, 73, 235 Savill and Gardner - 209 Saunders v. Owen - 173 Saunders v. Stevens - I6 Saunderson v. Jackson - 20O Sayie v. Freeland - 20-i Scambler's cxse - 294 Sclater v. Travv^ll - 21(5 Scoti and Hotley 496, 525, 52/ Scott and Attorney General 145 Scott V. Bdl - 342 Scrafton v. Quincey - 259 Scro^'gs V. Scroggs - 330 Scropev. Offly - 62,332 Scrope's case - 220 Sealey and Sargeson 27O, 277j 235, 39'^ Seaward v. Willock 444, n. 44S Serjeant and Parker - 344 Sermon and Dalamere - 20 Sew eil and Wilson 476, 507, ^09 Seymour and Clinton - 386 Seymour and Coleman 131, 403, 420, 423 Seymour and Lord Hinchin- broke - 215, 36l, 37/ Seymour's case - 194 Shadwell's case - 2/8 Shannon v. Bradstreet 286, 289, 290, 301, 303, 493, 512, 51/ c Sharrington's xxxiv INDEX TO CASEc Pi«gC Sharrington's case - 112 Shecoirsb or Slocomb v. Haw- kins - ^91 Shedilon V. Goodrich - 310 Sh'llcy V. Earsficld ~ 2C0 Shepherd v. Spencer - J 83 Shergoid and Reid Q7, 1 82, 250, 2/6, 295 Shirley v. Ferrers ' - 264 Shirley and Notts - 84 Shoircl and Willis - 53 Sliowcil and Cull - 307 Shurmcr and Mason - 396 Simpson v Hornsby - 208 Sit well V. Barnard - 3Cj3 Slater and Edwards 5/, 62, 64, 67, 72, 75, 127, 502 Slee and Croft - 227 Slocomb or Shecomb v. Haw- kins - -191 Smalbrook V. Fitz - 111 Smith V. Ashton - 277, 293 Smith V, Baker - 280, 281 Smith and Bolls, or Belly 31 Smith and Bovey 222, 369 Smith and Brice - 202 Smith V. Lord Camelfoid 130, 314, 409, 412, 425, 448, 451, 468, 471 Smith V. Carr - 324 Smitli and EUis 179, n. 201, 204 Smith V.Evans - 1/8, n. Smith and Parkhurst - 38 Smith and Pybus - IO6 Smith V. Trinder - 515 Smith and Wagstaff 105, 107 Smith T. Wheeler 149, 251 Smitli and Wright - 512 Smyth and Biggot -^ 31 Tag* Snape «nd Turton 54, 63, 92, 192, 222, 226, 369 Snet/d or Sneed v, Sneed or Trevor - 27 Q, 29 1 Snowdrn and Doe - 500 Socket t V. Wray - 1^6 Somers (Lord) and Pole - 308 Somerville v. Lethbridge 4-44, n. Souch and Witchcot - 317 Soulhby v. Stonehouse 256,26], 3S6 Speake v. Speake - 439 Spencer and Hill - 322, 323 Spencer v. Duke of Marl- borough 127, 348, 446 Spencer and Shepherd - 183 Spencer v. Spencer 404, AOg Spelling v. Rochfort - IO6 Sprange v. Barnard - IQB Spring V. Biles - 396, 429 Stackhouse v. Barnston 270 Staftbrd (Earl of) v. Buckley 92 Stafford (Marquis of) and Rex 357 Stafford's (Lord) case - 65 Stamford v, Omly - 29O Stanley and Lemaine 17S, n. 200 Standen v. Staudeii or Mac- nab - - 227, n. 228 Stanhope and Griffin 1 1 1, 337, 342 Stanhope's (Sir John) case 212 Staple and Doe - 136, 217 Staplelon's case - lys Stephens v. Olive - 343 Sterling and Savil - 2O9 Stevens and Saunders - 16 Stevenson and Hesse - 108 Stilcman v, Ashdown - 342 Stile V. Tomson - 141 Stiles V. Cowpcr 289, 303 StekcK INDEX TO CASES, XXXV Paje Stokes and Goodtitle - 384 Stokes and Russell - 14< Stone V. Evans - - 60 Stonchouse and Soutbby 2,56, 2Gl, 386 Stratford V. Loid Aldborough 280> 2g5, igg, 3o3 Straiten v. Best - 308, 384 Stratton and Butler - 433 Streatfield v. Streatfield - 505 Stribblehill v. Brett - 323 Stride and Birde - ] /S Strode v. Russell - 2/7 Stroud V. Marshall - 324 Sturgis V. Corp - Add. Sumpton V. Sir Andrew Jen- ner - 222 Supple V. Lowson - 434 Sussex (Countess of) v. Wroth 4Q0 Sutherland and Casterton 358, 383, 46(5 Sutherland (Countess of) v, Nortbmore - 216 Sutton and Kenvon - 84 Svvectrnan v. Woolaston Swift V. Gfegion Sylvester and Dyke Symson v. Turner J 40 J 407 117 T. Talbot V. Ti])per 263, 3/4, 526 Tankerville (Earl of) v- Coke 6(5, 561, 377 Tanner and Wollen « SOS, 397 Tapner V. Merlott - 38 1 Tarback v. Marbury 26.^, 357 Target v. Gaunt - 5ig Taylor and Browne - 231^ 361 Page Taylor v- Horde • 4/6, 52g Taylor V. Wheeler - 276 Taylour and Humphreys - 453 Templar and Evelyn - 243, 344 Temple v. Biltinglass - 2g6 Temple and Lestrange - IS9 Temple and Webb - 83 n. Tenant and Hul me - lO.'J Teynham ^Lord) v. Webb 333, 421,423,424 Thayer v. Thayer - 17Q Thelliisson v. JVuodford 310, 311, 312, 3-50, 4^:0 Thirkell and Buck worth - 2Q7 n. Thomas v. Hole - 433 Thomas and Owen - 51^ Thomas and Right 1/3, 4S0, 513 Thomas v: Thomas - 39S TKoinasius and Opy - 49 1 Thomlinson v. Dighton 68, 74, 94, 96, 133, 173, 182, 396, 461 Thompson v. Leach - 325 Thcinpson v. Towne • - 264 Thompson and Watnford 92, 3l6 Thomson v Freston - 126 Throrne and Bullock o5, 65, 63, 222, 339 Thorne v. Newman - 207 Thorne v. Thorne - 222 Tiiorpe and Campion - 484 TlHcdneedle v. Lineham - 505 Thruxlon v. Attorney General 178 Thurborne and Wall 254, 403 Thurland and Dormer 1/8. I89, Thwaytes v. Dye orDey IO.9, 363, 424 Tickner v. Tickner - 82, 83 Tipper and T loot 268, 374, 526 Toilet V. Toilet « 291,316 Tomkya XXXVl INDTX TO CAS£S. Tomkyn V. Sa'.icljs - 315 TonJinson. See Thoivlinscn Tomson and Stilc - 14' Towne and Thompson - 204 Towncsf nd V. V/alley - 113,1/0 Townsc/id and Downing - 330 n. Townserd and Ket'Ie - 276, 2S0 Townshcnd (Ld.) r. Windham 2S4 Townshend (Lord John) and Wilson - 313 Toye and Hinton - 2a6 Travel V. Travel - I S3 Travel] and Sclater - 21 6 Trevor and Sneed or Sncyd - 29 1 Trimmer V. Jackson - 18*^201 Trinder and Smith - 515 Tristram v. Lady Baltinglass 481 Troughton v- Trough ton - 264 Troy and Lowther - 5C0 Tudor V. An^on - 2/6, 277. 280 Turner and Clarke - 411 Turner and Syn:son - 1 1 7 Turner v. Vaughan - 322 Turton and Snape 5A, 63, 92, xgi, 122, 226, 309 Tylley v. Pierce - iQQ Tyrconr.cl (Earl of ) v. Duke ofAncaster 366, 437,439, 441, 442 U. Ubley or ITply and Daniel Q5, 133, 173 Udal V. Udal - 225, 247 Underwood and Doe - 383 Upton V. Bassett - 341 Uvedalc v. Uvedale - 217 Uxbridge (Earl of") v. Bayley 66, 2-1 S V. Vallier and Rigdcn - 36 1 Vanderzec v. Aclcm 131,256 403, 404, 4C9; 410,467 Vaidy and Bull - 315, V>\g Vau_han and Turner - 322 Vennbles V. Morris - 125,263 Verney and Joi.es 4/5, 527, 529, 531 Vernon (Lady) v. Jones 223 Vernon v. Vernon - 256 Vernon's case - 120,265 Vigor and the Attorney General 229 Villnrtal and Da Costa - 436 Villcrsaiid Wegg or Heynes 29, 33 Vincent V. Ennys - 59 Vincent and Habergham 110, 184, 235 Vincent v. Lee - HI W. Waad and Douglas - 342 Wade V. Paget - - 292 Wadham and Roach 86, 237, 264 WagstafFv. Smith 105, 107 WagstafF v . WagstafF 1 74, 1 96, 232 Wake V. V\^ake - 312 Wakeman and Walker or Wa- ker - 483, 485 W^alker and Menzcy 396, 403, 471 Walker and Perkins 222, 322 Walker or Waker v. Wake- man - 483, 485, 486 Wall V. Thurborne - 254, 403 Waller and Andrews - 280, 283 Waller and Bacon - 496 Walley INDEX TO CASES. XXXVil Page Wallcj and Townesend 143, 1 /O Wallis and La\Trence - 256 Walpole V. Lord Con'.vay - I2g Warburton and Sayl?y 133, 134 Warburton V. Warburton - 411 Ward and Attorney General 471 Ward and Bainton - ' 2S4 Wardv. Baugh - 307,313 Ward V. Booth - - 302 Ward V. Leiithal 179, 250, 254, Warde xnd Bristow 145, 308, 37<5, 409,412, 424, 425, 448, 451, 471 Ware v." Polhill Warebam v. Brown Warneford v. Thompson Warnefordv. Warnelbrd W^arner and Hardvvin 1 127 392 92, 316 l/S, n, ■9, 152, iQi 147 114, 128 3S7 161, n. 496 276, 277 475 Warren v. Arthur JFaru'ick v. Garrard • Waterhouse and Buller W-Jterworth and Ripley Watson and Doe Watts V, Bullas Watts and Doe Wayne and Lady London- derry 436, 438, 439, 440 Webb V. Temple - 83, n Webb and Lord Teynham 333, 421, 423, 424 Webster and Wh'.itler 307, 308, 412 225 111 32 129,301 195 423 Webster and Worme Weeks and Outon Wegg V. Villers Weller and Doe Wellington and Poulson Wells and Billingsiley West and Freeman - 496 West and While - 77 Western and Folkes 314, 381, AQ7 Webtfiiing V. Westfaling 16I, n. JVliaiey v. Druvimond - 182 Wheate and Burgess - 3l6 Y/heeler and Smith - 149,251 Vv' heeler and Taylor - 276 Whdpdale's case - 322 Vv hi-.kon V. Cleyton - 94 Whistler and Newman - 106 Whistler v. Webster 307, 308, 412 V/hitbread and Sax - 406 White V. Collins - 444, n. White and Parkes 61, i06, 103 White and Pike - 281 Wliitev. West - '77 IP kite V. JVhiie - 30Q, 431 Wiiite and Wilkinson - 103 Whitfield and How - 146, 520 Whitehead and Doe - 193,195 Whitehead and Perry - 2/6 Whitehorne v. Harris - 430 Whitlock'scase 366, 36S, 494, 525 Widmore V. WoodrofFe 430, 431, 432 Wigson V. Garrett or Gerard 68 Wilkes V. Holmes IO9, 196, 276, 292, 293 Wilkinson v. White - 103 Wilks V. Packs - 17 1 Willis V. Shorral - 53 Williams v Drewe - 120 Williams V. Jekyll - I61, n. Willock and Seaward 444, n. 448 Wilmerv. Kendrick - 294 Wilson V, Mount - 305 Wilson V. Piggot 286, 404, 408, 471 "Wilsoii XXXVlll INDEX TO CASES. Pa-e Wilson V. Sewell 4/6, 507, 509 WUsuii V. L' rd John Town- shend - - 313 Winchelsca (Earl of) and Hurst - 257 Winchester's (Marquis of) case 1*^18 Windham and Ld. Tov/nshend 264 Windsor's (Lord) case - l6l, n- Winstandley's C3se - 2J4 Winston and Bould - 30 Winter and Lt-igh 66, 337 Winter v. Lovrday 3/2 > 484, 4S8, 494 Witchcot V. Souch - 3!7 Witts V. Boddington - 320 Witts V. Dawkins - 10<3 Wollen V. Tanner 308, 397 Wood and Broadmead - 421 Wood V. Reignold - 3d JFoodford and Thd'.usson 310, 312, 350, 420 Woodie's case - 344 WoodroiFc and Widraore 430,4^3, 432 Wbod'-ivard v. Hahey - 181 Woolaston and Sv/eetman 403 Woolridge and Biunsden 431, 434 Woolston and Zouch 66, 222, 273 Worcester's (Dean and Chap- ter of) case - 480 Wordale and Hyer - 317 Worme v. Webster - 225 Wray and Sockett, - ]06 Page- Wright and Bradbury - 438 Wright V, Lord Cadogan 135 "Wright V. Enrleficld - 135 Wright V. Puitter - 307, 308 Wright V, Smith - 512 Wioih and Countess of Sussex • or Leaper - 49O Wytham and Hixon - 164 Y. Yate V. Mosely - - 312 Y;);es V. Boc-n - - " 324 Ya;es v. Compton - lOO Yelland or Yeoland v. Ficlis or Feltis - 55, 27 \ York (Archbishop of) and Roe 235,322,500,511 Young V. Cotile ' - 247, YtAR-BoOKS. 3SE.3.pK3. 101 49 E. 3. 16 pi. 10. 95, 96, 102 9 H 6. 13. b. - 100 9 H. 6 24. b. 25 a. - 99 15 H. 7. 11. b. - 53. Zouch V. Woolston 66, 222, 273 TABLE TABLE OF STATUTES CITED. Richard III. I. c. 1. (Uies) Pa£e 7. 12. Henry VI I. 19. c 5. (Uses) - 13 Henry VIII. 21. c. 4. (Sales by Execulors) 140 27. c. 10. (Uses) - 7 — c. 16. (Inrolments) - 9 32. c. 1. (Wills) - 12U 32. c. 38. (Leases) - 478, 503 33. c. 20. (Treason) - l48 Elizabeth. 1. c. 19. (Leases) . 504 13.C. 7. s. 2. (Bankrupts) 154 13. c, 10. (Leases) - 502, 509 18. c. 11. (Leases) - 503,504 27. c 4. (Voluntary Con- veyances) - 335 25. c. 5. (Engleiield's For- (feiture) - 151 Page. 43. c. 4. (Charitable Uses) \jg James 1. 21. c. 19. s. I. (Bankrupts) 154 Charles II. 29. c. 3. s. 3. (Surrenders) 322 s. 5. (Wnis) - 178 s. 10. (Judgnaents) 13 Anne. 7. c. 21. (Treason) George II. 9. c. 36. (Charitable Uses) 1 7. c. 39. (Treason) - Geofffe III. 48, n. 179 48, n. 39 & 40. c. 41. (Leases) 515 c 93. (Trsason) 148, n. ADDENDA ET ERRATA. The Case of Webb v. Temple, 83, n. was cited in 3 Vcs. jun. 060. Add a Reference in Note {fj p. gi, to Hixon v. Oliver, 13 Vcs. los, since published. Add a Reference in note fpj, p. 108, to Sturgis v. Corp, 1-J Vcs. 190, since published. The Case of Doe v. Manning, mentioned itj the note to p. 308, has been since reported by Mr. East (vol. 0, p. sg). The most important Case on the Subject (Taylor v. Stile, Treat. Purch. 432, tid edit.) appears to have escaped the notice of the Court, although it was, I believe, cited in the Argument. A Case has been just decided, where the trust in a will was " to permit and suffer his niece to receive and take the interest, dividends, and proceeds, of the capital sum of ^2100, or so much thereof as should from time to time be vested in his ssid trustees for the purposes of his said will, during her natural life, for her own sole and separate use and benefit, notwithstanding any husband she might happen to marry, and should pay ^he same into her own proper hands, for her own separate use and benefit ; and that her receipt and receipts alone should from time to time be a good and sufiicient discharge and discharges for the same ; and that the same, or any part thereof, should not be subject cr liable to the debts or engagements, power or controul of any such husband." The question was, whether the niece could make a sweeping appoint- mtnt. The able Counsel for the defendant gave up the poir.; without argument, and it was according 'y decreed that an ab.so- hue sale by her was valid. — Brown v. Like. Rolls, ISth March. isuis. Sec ch. 2, s. l, div. iii. of this v;ork. A TREATISE OF POWERS. CHAPTER L OF THE ?iATURE OF POWERS BEFORE AND SINCE THE STATUTE OF USES ,* AND OF THE SUSPENSION, EXTiN- GUISHMENTj AND MERGEtl OF POWERS, DERIVING THEIR EFFECT FROM THE STATUTE. SECTION I. X owERs are either common law authorities ; declara- tions or directions operating only on the conscience ot* the persons in whom the legal interest is vested ; or de- clarations or directions deriving their efi'cct from the statute of uses. A power given by a will to A to sell an estate, (I) and a power given by an act of parlia- ment to sell estates, as in the instance of the land-tax redemption acts, are both common law authorities. The estate passes by force of the will, or act of parliament, and the person who executes the power, merely nomi- nates the party to take the estate. A power of attor- (I) This is doubted where a seisin is raised to feed the devise. The doctrine cannot be considered, till the student is made acquainted with the nature of this seisin. B nay 3 OF POWERS BEFORE ncv IS also a common law aulliority ; but tlic esfalc is not in this, as in theotlicr cascSj actually transferred by the instrument creating- the power. It is a mere au- thority to execute a convcy.ancc in the place of the prin- cipal ; and the estate, therefore^ must be conveyed by tlie altorncv, with the same solenmilies as >vould have been requisite upon a transfer executed by the principal him- self. A power to dispose of an estate, or sum of mo- ney, of which the legal interest is vested in another, is a power of the second sort. The legal interest is not divested by the execution of the power, but equity will compel the person seised of it, to clothe the estate cre- ated with the leg-al right. To understand correctly the nature of powers deriving tlseir etiect from the statute of uses, which it is the principal object of these sheets to elucidate, we must consider, 1st, The nature of trusts before the statute of uses ; and, 2d, The eflect of the statute. The simplicity of the connnon law was admirably adapted to times when transfers of property were not frequent. It was essential to their validity, that cor- poral possession of the land should be delivered to the purchaser in the presence of his neighbours; thus, €^very one's title was publicly known, and secret and fraudulent transfers of property never could take place. This mode of transfer was termed a feofl'ment, with livery of seisin, a conveyance which is still frequently used. And the like strictness required, that estates thus notoriously transferred, should not be defeated by the mere execution of a deed ; and, therefore, a power of revocation annexed to a feoftment, was void in its very creation. A condition, it is true, might at all times have been added to a feoffment ; but the strict rule THE STATUTE OF USES. S rule of the common law did not permit the breach of such condition to be taken advantage of by any but the feoffor or his heirs^ and this principaily with a view to prevent maintenance. These rules opposed an efiectual barrier to such modifications of estates as prevail at this day. When to this rigour we add, that except in some few places, by force of a custom, lands could not be devised, we shall 'iiot be surprised that the wants of succeeding' times should invent a mode to defeat the excessive rigour, and subvert the simplicity of the common law. This was effected bv the introduction of uses. It is not within the plan of this work, to con- sider the precise time when, or by whom uses were in- troduced. The nature of them only requires our atten- tion. An use, then, was a mere confidence in a person to whom an estate was conveyed, without consideration, to dispose of it as the person by whom it was conveyed should direct. The estate was regularly transferred to a friend, upon trusts designated at the time ; or upon such trusts as should be afterwards appointed by the real owner. But still the person to whom the estate was conveyed, was, to all intents and purposes, owner of the estate at law. It is observed, in Chudleigh's case, that he who hath an use, hath not jus neque in re neque ad rem, but only a confidence and trust, for which he had no remedy by the common law : and Serjeant Fro- wick, afterwards Chief Justice of the Common Pleas, re- marked, in the reign of Henry the 7th, that by'the course of the common law, cestui que use had no more to do with the land, than the meerest stranger in the world. To prevent, in some measure, the consequences of this doctrine, it became usual to have several joint feofi'ees ; so that, on the death of any, the estate might survive to B 2 the * OF I'OVVEUS BEt'ORK the others, and not be sii]>ject to the dower of the de- ceased's wife, &e. And it also became customary for the owner himself to be one of the feo flees ; nor did any inconvenience result from this practice ; the judges lield, that althoug'h in such cajfc the use was in part suspended, yet it mig-ht be disposed of in the same manner as if the entire legal estate was \estcd in others. This mode of conveyance became indeed so common, that in the statute of uses^, to which our at- tention will presently be calial, a;i express provision was inserted to meet this case Equity, after some tiuie^ and by degrees, assumed the jurisdiction which it now exercises, in enforcing- the performance of trusts and contracts, so that the person, who had conveyed his estate, or cestui que use, as he was then termed, answers almost precisely io cestui que frw.sM)f tlie present day. When uses were once esta- blished, and not noticed by the courts of law who ac- knowledged the legal tenant only, the complication of modern settlements was soon introduced. Thus, powers arose ; for although it was repugnant to a feoifment at common law, that a power should be reserved to revoke it, yet there wus no such repugnancy as to trusts, which were simple declarations, or directions to the person seised of the legal estate, in what manner, and to whom he should convey tlie estate. And, for the same reason, the owner might direct the trustee to convey as a stranger should appoint, aUhough a power of eniry for a condition broken, could not be reserved to a stranger on a common law conveyance. Equity, however, onlv lent its aid where there was a valual)le or good consideration. The first arose upon a real cculract, and was termed a bargain and sale. It was, ^ THE STATUTE OF ISES, D \vas, in fact, originally a mere contract bv A. to sell Iiis estate to B, although in process of time it became a mode of settlcaieiit, and equity did not enquire into the amount of the coDsidcralion ; the second was also a mere contract or agTcemcat, by a husband, parent, or kinsman, to settle his estate upon his wife, children, or relations. This was styled a covenant to stand seised — Money, rent, or services incident to tenure, were suffi- cient to sustain the former : the consideration of mar- riage, and natural love and affection to a legitimate child, brother, nephew, or cousin, the latter. In or- der to comprehend the doctrines we shall hereafter have occasion to discuss, it will here be necessary to observe, that a consideration was only required where the inheritance remained in the contracting farti/. Now a covenant to stand seised, or a bargain and sale, did not transfer the possession to the covenantee or bargainee : it was a mere contract, and was, there- fore, termed a conveyance, not operatii-g by transmu- tation of possession; the party with whom the con- tract was made was compelled to resort for relief to equity, and equity following the rule of the civil law, would not enforce a mere nudum pactum. But, where a conveyance did operate by transmutation of posses- sion, as a fine, recovery, feoffment, or release, which \est the legal estate in the ^Tmusce, recoveror, feoffee, or releasee, and vises were declared on such a convey- ance, there equity did not inquire into the considera- tion: the real owner having divested himself of the legal estate, it was not necessary to resort to equity, as against him ; and the person in whom it was vested being a mere naked trustee, was bound in conscience lo execute the directions of the donor. This is clearly b3 Jaid 6 OF POWERS BEFORE THE STATUTE OF ISES. laid down by St. German^ who says^ lliat when an use is in csf^e, he tliat hath the use may, of his mere mo- tion, j:;ivc it away if he will, without recompense, as he might the land if he had it in possession. But he took it for a ground, that he could not so begin an use without livery of seisin, or upon a recompense or grour.d ; and the Eoctrir.c is referred to its true prin- ciples. Tliis important distinction applies closely to the usual conveyance by lease and release. Where the lease for a year is intended to operate under the statute, a va- luable consideration is, according to the above rule, absolutely necessary ; but //valuable, it need not be pecuniary — a pepper-corn rent is sufficient. The release operates at common law ; and as the common law never requires a consideration upon a solemn conveyance by deed, none need be given, although it is usual to ex- press that a nominal consideration, as 10s. was paid; nor is a consideration essential, although uses are de- clared by the release, as they fall within the above principle. This distinction, which was never denied, was expressly taken in the case of Pawlyn v. Hardy, {a) where it was determined, that if he in reversion release to the tenant in possession, all his estate, right, title, &c. there need no consideration to be mentioned or proved, it is good without 5 otherwise, if by grant, &c. (a) Mich. 36 Car. II. B. R. MS. SECT. OF THE STATUTE OF USES. SECTION II OF THE STATUTE OF USES. IVlanifold frauds were the consequence of (lie intro- duction of uses ; heirs Avere unjust Iv disinherited; the King U)st his profits of the lands of attainted persoiis, aliens horn, and felons ; lords lost their wards, marriages, reliefs^ heriots, escheats^ aids ; married men lost then' tenancies^ hy the curtesy, and women their dower ; pur- chasers were defrauded ; no one knew against whom to bring his action^ and manifest perjuries were committed. Several statutes were passed to remedy these grievances, particularly a statute in the reign of Richard the Third, (bj whereby it was enacted that all estates, &c. created by cestui que use, should be good as against his feoffees. Modes were soon invented of evading these acts. At last, it was thought that all these wrongs would be a\ oid- ed by, as it is usually termed in conveyances, trans- ferring uses into possession, or, perhaps, to speak more correctly, by transferring or turning uses to posses- sions. With this view, the statute of 27 H. VIII. c. 10. commonly called the statute of uses, was passed, w hich enacted that, where any person or persons, stood, or were seised, or at any time thereafter, should happen to be seised of and in any honours, or other hereditaments, to the use, confidence, or trust of any other person or persons, or of any body politic, by any manner of means whatsoever it should be; that, in every such case, all (bJ 1 R. 3.C. 1. B 4 guch 8 OF THE STATUTE OF USES. such person and persons and bodies politic, that had, or thereafter should have any such use, confidence, or trust in fee simple, fee tail, for term of life, or for years or otherwise, or any use, confidence, or trust, in remainder or reverter,- should, from thenceforth, stand and be seised, deemed and adjudged in lawful seisin estate, and possession of and in the same hoBours and hereditaments, with their appurtenances, to all intents, constructions, and purposes in the law, of and in such like estates, as they had or should have in use, trust, or confidence, of or in the same; and that the estate, title, right, and possession, that was in such person or persons, that were, or there- after should be seised of any lauds, tenements, or here- ditaments, to the use, confidence or trust of any such person or persons, or of any body politic, should be from thenceforth clearly deemed and adjudged to be in him or them, that had or should have such use, confidence, or trust, afrer such quality, manner, form, and condition, as they had before in or to the use, confidence, or trust, that was in them. The statute then provides for the case of several per- sons being jointly seised to the use of any of them. And contains two savings, Jst, To all persons (other than those person or persons which were seised, or thereafter should be seised of any lands, tenements, or heredita- ments, to any use, confidence, or trust) all such right, title, entry, interest, possession, rents, and action, as they had, or might have had, before the making of the act ; And, 2d, To all persons seised to any use all such for- mer rights as they had to their own proper use, in or to any manors or hereditaments, whereof they should be seised, to any other use. It has been quaintly said, that uses were, by this act, with OF THE STATUTE OF USES. 9 with an indissoluble knot, coupled and married to the land, which, of all the elements, is the most ponderous and immovable. Whether the Legislature did, or did not, intend to crush uses, it is not material for us to inquire, as it was soon settled that uses might still, as formerly, be raised, upon whichhowever the statute woiftld instantly operate; but neither the Legislature nor the Judges admitted uses with all the latitude of construction with which they were adopted before the statute of uses: Previously to the statute, a mere contract uninroUed by A to sell his estate to B was sufficient, w ithout words of inheritance, to pass the equitable fee to the vendee, but the Legislature, by an act passed immediately after the statute of uses (c), required that to transfer the legal estate by force of that act, such contracts should be by deed inrolled. And the Judges resolved that words of inheritance were absolutely necessary to pass the fee at law. And, at this day, it is clear that a mere contract to sell for a valuable conside- ration paid, importing a future conveyance, would not raise an use in the purchaser, so as to attract the statute, although by deed duly inrolled, and containing words of inheritance, but still it would, in the view of modern (equity, convert the vendor into a mere trustee for the purchaser, and entitle him to call for a regular con- veyance. To the raising of an use which the statute will transfer ^o a possession, it is necessary that there should be, 1st, pn<3 person seised to the use of another, in esse ; and, 2dly, an use in esse, but whether it is limited in possession. (c) 27 H. Viri. c. 16. Note, this act did not extend to covenants to stand seised, and only to estates of freehold, or inheritance. remainder. 10 OF THE STATUTE OF USES." remainder^ or reversion, is immaterial. Thus, if a man, for a valuable consideration, should contract to sell an estate to another in fee, which contract is properly in- rolled, or, as we now term it, should convey his estate by bnrg-ain and sale inrolled, equity instantly fastens on the conscience of the vendor, and holds him to be a trustee for, or to be seised to the use of the vendee or bargainee : here then the requisites concur : there is a person seised to the use of another, to whom an use in possession is limited, immediately therefore, on the in- rolmcnt of the deed, the legal estate by force of the sta- tute of uses, vests in the bargainee as eftectually as it w ould have done at common law by a feotfment, accom- panied with livery of seisin or corporal delivery. And, had it not been for the statute of inrolments, the legal estate would have vested upon the execution of the deed. By an uimccountable construction of the courts of law, it was held that an use could not be limited on an use, that is, that the statute would operate on the first declaration of trust only ; thus, if by a bargain and sale, ,the use is limited to A, and it is then declared that he shall stand seised in trust, or to the use of B, the statute will vest the legal estate in A, and the law will not advert to the trust declared in favour of B, Perhaps there is not another instance in the books, in which the intention of an act of parliament has been so little attended to. It has frequently been observed by high authoritv, that there is no mag-ic in words. When therefore the act said that, where one person was seised to the use of another, the legal estate should be transferred to the cestui que use, it meant that the person to whom the es- tate belonged in conscience^ should be invested with the legal OF THE STATUTE OF USES. 11 leo-al riffht to it. Now, if an estate was conveyed to A to the use of B, in trust for C, C was the person enti- tled to the possession of the estate, and A was evidently seised to his use, as it appeared by the deed itself, that the possession was not intended to remain in B, and there is nothing in the act to prevent the possession vesting in C. And at least it might have originally been held with- out any violation of principle, that the statute first exe- cuted the possession in B, and thon again in C ; for, ad- mitting that it was necessary to first vest the possession in the use limited to B, it Avouldbe difficult to discover any thing in the act, which prevented the possession given by the statute, immediately transferring itself from Bto C. This could be effected by two deeds, and whv not bvone and the same deed ? Nor am I satisfied that the Judges intended to hold generally that an use upon an use was void. They determined indeed that, if A, in considera- tion of money paid by B, bargained and sold land to B, to hold to him and his heirs, to the use of the feoffor for life, in tail, or in fee, or to the use of a stranger, that the uses were void, and B should be seised in fee, be- cause the consideration and sale implied that the use should be solelij in him in fee. The limitation was deemed repugnant to the habendum. But, suppose it to have been expressed in the deed, that the money be- longed to C, and was paid by B on his behalf, and the habendum had been to B in fee to the use of C in fee, it does not appear to have been settled that the use to C would not have been executed by the statute, although clearly an use upon an use. The law must, however, at this day, be considered as embracing every case. The Court of Chancery soon seised upon this narrow con- struction as a pretext to revive uses under the name of trusts. 12 OF-THE STATUTE OF USES. trusts, and, accordingly^ it was determined that B was in conscience a trustee for C, and should be compelled to convey the estate to him. This equitable branch of ju- risdiction was extended by the resolution of the courts of law, Biat neither copyhold nor leasehold estates could be convejed to uses upon which the statute would operate. A term of years may of course be created out of a free- hold estate by way of use, but when it is once a subsist- ing interest, it cannot be conveyed to uses. Therefore if it were assigned to A to the use of 15, the legal inte- rest would remain in A, who however would in equity be deemed a mere trustee for B. It may not be irrelevant to observe, that it has been justly thought of real importance to show that the statute of Richard the Third, which is referred to in a preceding page, extends to seisins in fee only, lest it should be thought that the a^ssignmeni of cestui que trust of a term would at this day pass the legal interest (dj. And this is proved by the ancient cases, and the modern case of Good- title V. Jones (ej, is also cited as an authority that the statute is not applicable to such a case. But on the con- trary, in that case, the court took it for granted, that the statute did extend to cestui que use of a term for years, but they held that the statute only related to con- veyances made for the benefit of the then grantor ^ whereas in the case before them, the term (which was an old satisfied term attendant on the inheritance) was created, not for the benefit of the grantor, but of a mortgagee. Indeed in a subsequent case ffj, Lawrence, Justice, admitted that the statute was cited unexpectedly, {d) See 1 Sand, on uses, p. 41 — 49. (J) Blake v, Foster, 8 Term Rep, (e) 7 Term Rep. 47. 494. and OF THE STATUTE OF USES, 13 and the court were taken by surprise, but he added, that though it certainly did not apply to that case, on further consideration, the court zi^ere of opinion that it extended to other cases (^g). In the last case, however, the court held that a lease granted by the husband of ccstniquc trust for life, was not authorised by the statute. The court said, that a contrary construction would in a great measure destroy that system of trusts by which real pro- perty is secured to women during their covertures, free from the control of tlieir husbands : but still they consi- dered the statute of Richard the Third as in full force. This however is an opinion which we should not hastily adopt. For, 1st, as to grants made hy cestui que trust o{ the freehold, it is quite clear that in regard to them the statute is virtually repealed by the statute of uses. When the Legislature gave the possession to the cestui que use, the statute of Richard was functus officii, and the subsequent revival of uses under the name of trusts, can- not revive the statute, as it was not intended to applv k> modern trusts. This point has indeed received a legisla- tive adjudication. It appears to have been holden that execution might be sued out on any judgment entered up against cestui que use, by force of the statute of Richard the Third, but to prevent any doubt, this power was expressly given by tlie 19 lien. \ II. c. 15, Now it was deemed clear that this provision would not extend to trusts since the statute of users and therefore a similar provision was inserted in the 29 Car. IL cap. 3, commonly called the statute of fraudF, and under this act it is, that trust estates are at this day extended for the (^) And see Lord Loughborough's judgment in Russell i*. Stokes. 1 H. Blackst. 566. judgment 14 OF THE STATUTE OF USES. judg-moiif debts of ccstuis que truat. t^dl)-. As to grants by cestui que trust of a term, the statute certainly does not extend to them. This is very satisfactorily proved by Mr. Sanders ; indeed the very point appears to me to have been decided by the case in which it was resolved that the statute of uses did not embrace leaseholds; for the question sent to the.ludi;es l>y Lord Chancellor Bromle}-, was, not whether the grant hy cestui que trust of a term, was good to pass the legal estate, by reason of his taking the legal interest, under the statute of Henry the Eighth, but generally whether the grant was good to pass the legal estate ; and all the Judges and Chief Baron answered, that the grant of cestui que trust of a term was void, and out of the statutes of uses (/i), which was expressly deciding that they were not within the sta- tute of Richard; and at that period, no statute relating only to lands of which a man was seised, was extended to leasehold estates, as of them he had merely a 2'>ossession, and not a seisin (J). A very strong argument in favour of thisdoctrine,isthatoneobjectofthestatuteof Henry clear- ly was to crush the frauds which had sprung up under the act of Richard, and it may reasonably be presumed^ that had leasehold estates been within this act, thev would have been hoiden to be within the statute of uses also. One evil intended to be remedied by the act of Henry the Eighth, was frauds on purchasers, to which they were still obnoxious, if the legal estate in leaseholds was left in one, and the use, or equitable estate in another : (A) Dy. S69, pi. 50; see Poph. (i) See Mo.GU. 76; Jenk. 195j 1 Brovvnl. 40 ; 2 Kcb. 600. for OF THE STATUTE OF USE!=l. 15 for if the legal tenant could assign tlie estate by force of the common law, and the equitable tenant could als3 transfer it under the statute of Richard, each might make an assignment to different persons, and so entangle them both, notwithstanding the statute of uses. The decision therefore upon this statute, can only be accounted for on the ground that leasehold estates were not within the statute of Richard. This hypothesis derives great support from the opinion of Lord Chancellor Notting- ham, that the statute of uses was intended not to extend to all trusts and uses, but only to be coextensive with the statute of Richard the Third (Ji). Lord Chancellor Bacon indeed says, that the reason why the statute of uses does not embrace leasehold estates is, '' that the statute meant to remit the common law, and not but that the chattels might ever pass by testament, or parol, and therefore the use did not pervert them ;" or as we should now express it, the statute meant to remit the common law, and as chattels might at all times pass by will or parol, the use did not alter their nature, and therefore they were not within the scope of the statute. But it would not have been productive of any mischief to have considered chattels real within the act. It is no objec- tion that a testamentary power over them existed be- fore the statute, which the Legislature did not intend to take away : they might still, as formerly, have been bequeathed, although the legal interest was vested in the owner. It is a strong confirmation of the argument, that the act of Richard did not embrace leasehold estates, that (*) See Harrington on Stat. p. 327 who cites a manuscript ti-eatise of Lord N.'s. from 1§ OF THE STATUTE OF USES. from (he 22d of Eliz. to the year 179G, a period of twd centuries and a half, it was never once contended that a cestui que trust of a leasehold estate was within citlier the act of Richard the Third, ortheactof Henry the Seventh. And at this day there is no subject to which they can apply ; trusts of leases as now enforced by equity, were not within the meaning- of the statutes. Therefore^ quacunque via data it should seem that the statute of Richard the Third is now of no force whatever. It may be observed, that, as at this period, a perma- nent interest can bo g:ained in a leasehold estate, not subject to be defeated at the will of the freeholder, a modern act, similar to the statute of uses, would certainly receive a dilierent construction. Thus, in a case in the reign of Gedtge the First, it appeared that by an act of parliament, commissioners of the land-tax were required to be seised of lands, tenements, or heredita- ments, taxed for the value of 100/. per annum. The question was whether a commissioner was duly qualified who was |)«sse6serf merely of lands of 100/. per ann. fop the remainder of a short term. For the negative, the counsel relied on the construction of the word seised in the statute of uses, but the court gave judgment unani- mously that the commissioner had a suiiicient qualifica- tion (/). (/) Saunders v. Stevens, I Com 270. SECT. OF SCINTILLA JURIS. 17 SECTION III. OF SCINTILLA JURIS, A owERs before the statute of uses werv% as ^ye have seen, mere directions to the trustee of the legal estate how to convey the estate, in truth, thej were future Uses to be designated b-y the person to whom the power was given: these, when they arose, equity compelled the trustee to observe; and wlien conveyances under the statute of uses became established, it was still usual to reserve or limit such powers, as the exigencies of the case required : thus, powers to lease, to sell or exchange, to jointure, to charge with portions for younger children^ or to revoke the settlement itself, soon became usual. In the reign of Elizabeth, however, it was insisted, that a man having once limited the fee simple in use, could not reserve a power by a future act to defeat the uses, and to raise new ones b}' force of the same assurance; for as the Statute extinguished the use in the possession, it could no more be determined, and new estates created, without a new livery, than an estate in possession. But to this it was answered, that uses were not to be compared to the land itself, being mere accidents inherent to the posses- sion, and built thereon by civil equity : and that the statute only imbued the possession with the quality, forra^ and condition of the use, but did not effect any altera- tion in the mode of limiting and raising present and fu- ture uses, which remained as before (ni). And accord- {m) Anon. Mo. 608. The arguments in this case are deserYing of the Student's attentive perusal. Mr. Powell has made a considerable part of them serve as an introduction to his work on Powers, although the case is not referred to, c ingly IS or 5CINTILLA JURIS. ingly Manwood laid it down in Brent's case, that al- though the possession was executed to the use, yet the property and quality as abstracted from the possession> should not be drowned in the possession (71). Powers after the statute still remained as mere rights of designation which bound the conscience of the trus- tee, and the estates to be created b}- force of them were still clearly future or contingent uses. But when a power was executed, as the person in whose favour the appointment was made became invested with the use, he instantly gained the legal estate by force of the statute. Now to attract the legal estate under the statute, it is essential that there should be a use in esse ; whereas the uses to be raised under poSvers are not in esse, or defined, but until ascertained and limited under the power are merely tantamount to future or contingent uses. What operation the statute had upon contingent uses has been the subject of much judicial controversy, and demands our particular attention. Perhaps no question ever occurred on which the Judges were so divided in opinion; some held that the estate vested in the first cestui que use, but subject to the contingent uses which should be executed out of his seisin as they arose ; but this was soon over-ruled, and it was determined. That an use could not arise out of an use. It is observable, that most of the Judges who espoused the first opinion, also held that the contingent uses bound the land, and could not be barred by any act whatever ; others held that the seisin to serve them was, to use their own expressions, in nuhibus, in mare, in terra, or in custodia legis; they also seem to have been (») See 2 Leo. 16. of OF SCINTILLA JURIS. 19 of Opinion, that contingent uses could not be barred. Again some thought that the trustees were merely pipes tliTouffh whom the estate was conveyed to the uses as they arose, v/hile others thought that so much of the in- heritance as was limited to the contingent uses remained actually vested in the feoffees till the uses arose. But according to some of the books, the majority of the Judges held, that there remained not an actual estate, but a possibility of seisin, or a scintilla juris in the feoffees or releasees to uses to serve the contingent uses as they arose. And this is expressed to be the law in the mo- dern V. orks written upon uses. Before the statute of uses, the feoffees to uses were absolutely seised of the legal estate, and, therefore, if cestui que use levied a line, or executed a feoffment, the entry of the feoffees was requisite, because the wrong was done to them, and if such feoffees were disseised be- fore the statute, no use could be executed after the statute, except by their entry ; for the statute only executed those uses to which any person was seised, which they who were disseised of course could not be. Thus, where Robert Dalamere made a feoffment before the statute to several persons in fee, to the use of himself and his wife in special tail, remainder to himself in tail general, remainder to the use of Simon Dalamere his brother, in fee. Robert Dalamere before the statute infeoffed another in fee, who also before the statute in- feoffed another in fee, and he made a feoffment in fee over to Simon Dalamere after the statute, who again infeoffed another. After the death of Robert Dala- mere, and the first feoffees, the heir of the survivor of such feoffees entered to revive the use to the wife of e 3 Robert so OF SCINTILLA JLRIS. Robert DalamerCj and the entry was adjudged to tiC lawful (o). This case at first view does not appear to be relevant to tlie point in discussion^ but it certainly had consider- able influence over fuUive decisions; and cases where a clear seisin existed were confounded with this case where the statute could have no operation ) Dyer 340 a, 2 Leon, H, Dall. M6, 10 Elizabcih, 112. been,. OF SCINTILLA JURIS. 21 been, that future uses could not be barred. And Man- wood arg'ueil strongly in favour of uses, and held, that the wife was capable of the use accordmg to the will and direction of the donor. He seems to have thought that until the future uses were executed, the feoffees had a fee simple determinable, or that the estate in the mean time resulted to the feoffor. Harper, who was thoroughly acquainted with the reasons and intent of the makers of the act, said, that they intend- ed to pen the statute so precisely, that nothing should be left in the feoffees, but that the whole estate should be executed by the statute, so as the said statute did utterly take out all from the feoffees : and he agreed with Mounson and Mamvood. Dyer, Chief Jus- tice, said, that it was to be granted that the statute doth divest all out of the feoffees, yet it doth not di- vest it before that the use be vested in cestui que use ; the vesting of the use ought to precede the execution of the possession to it. And he was of opinion, that this future use limited to the second wife did remain in the feoffees at first, but that they had destroyed it by their feoffment. He, as well as Manwood, held, that the feoffees had a fee simple determinable until the future use arose. He expressly said, that the interest which the feoffees had in the interim, until the execution of all the uses, was a fee simple determinable, for the v/hole interest was not divested or driven out of the feoffees until the whole ^ trust were accomplished, that is, until all the uses limited upon the feoffment were executed, and had their full per- fection. This is according to Leonard's, which is by far the best report of the case. According to Dyer's own re- c 3 port;, 22 OF SCINTILLA JURIS. port,, Manwood and he held that it was necessary for the feoftces to enter to revive the use ; and although by the words of the statute the fieehold of the land and the fee simple also of the feoffees are vested in the cesttiis que use, yet, as it is expressed, adhuc remanet qucedam scintilla juris et tituli, quasi medium quid, inter utros- que status, scilicet ilia possibilitas futuri usus ewer- gentis, et sic iutcresse et titiilus et non tantum nuda auctoritas seu potestas remanet. Ultimately^ Moun- son and Harper were in favour of the second wife's claim^ and Manwood and Dyer against it; and there- upon the matter was adjourned into the Exchequer Chamber^ where the parties came to a compromise (I). Leonard's reports were always in high estimation, and from them it clearly appears, that Dyer was of opinion that a sufficient portion of the fee simple to serve the contingent uses remained actually vested in the feoffees ; and perhaps he meant the same thing by this doctrine of scintilla juris, for he defines it to be an in- terest and title, and not merely a naked authority or power. At all events, this opinion was not sanctioned by at least two of the Judges, In the next year ?»lanning and Andrew's case(^) was heard, which was a case nearly similar to Dalamere's case. Geoffries, Justice, was of opinion, that as to con- tingent uses, a suflicient estate was left in the feotlees, (7) 1 Leo. 256. (I) There were several other questions in the case, upon which the Judges were divided— the validity of the hmitation itself, the effect of the livery, which was by attorney, &;c. and OF SCINTILLA JURIS. 23 and they ought to enter. But Southcotej Justice, held that nothing remained in the feofFees to serve contingent uses, and that, therefore, they could not enter. Wray, Chief Justice, was of the same opinion -, he thought that the whole estate was settled in the cestui que use, yet subject to such contingent use, and he should render the same upon the contingency. The best construction of the statute, lie said, was, that it draws the whole estate of the land, and also the confidence out of the feoffees, and reposeth it upon the lands, the which, by the operation of the statute, shall render the use to every person in his time, according to the limitation of the par- ties ; and also, if any interest doth remain in the feoffees, then if they convey to any person upon consideration who hath not notice of the use, the use shall never rise, which is utterly against the meaning of the parties ; and, therefore, to construe the statute to leave nothing in tlie feoffees, will prevent all such mischiefs. And it is true, at the common law, the entry of the feoffees was requisite, because the wrong was done unto them by reason of the possession which they then had ,' but now by the statute all is drawn out of them, and then there is no reason that they meddle with the lands wherein they have now nothing to do, and the scope of the statute is utterly to disable the feoffees to do any thing in prejudice of the uses limited, so as the feoffees are not to any purpose, but as a pipe to convey the lands to others ; so they cannot, by their release or confirmation, &c. bind the uses which are to grow and arise by the limitation knit unto the feoffment made unto them. This case is very important. It appears clearly, that the doctrine of scintilla juris was not then received as law ; and, indeed, that no fixed or settled notions were c 4 formed Si OF SCINTILLA JURIS. formed respecting the operation of the statute on con- tingent uses; GcofFries thought with Manwood and Djer, (according to Leonard's report of Brent's case), that a sufficient actual estate remained in the feoffees to support the uses, while Southcote and Wray were of opinion that the feoffees were by the statute made mere conduit pipes, and were divested of all estate. About thirteen j^ears after Manning and Andrew's case, the famous case arose which is constantly referred to as having decided the doctrine of sc//zf ///a juris (r). I allude to Chudlcigli's case. The case was, that Sir Richard Chudleigh conveyed an estate to the use of trustees, and their heirs, during the life of his son Christopher, remainder to the use of the sons of Christopher successively in tail, remainders over. The feolfees afterwards infeoffed Christopher of the lands before he had a son. For the extinction of the use, the case was argued by analogy to cases before the statute, where the feoflees had the fee simple. Against tlie land being bound by the use, it was said to be absurd, that coniidence can be reposed in land which wants sense, and, against its being in the custod}-^ of the law, it was insisted, that it would be absurd for the law which, by its definition, is sanctio sancti.jubens honesta, and prohibcns contrarla to be the conservator or preser- ver of a thing impious and fraudulent, which an use is: The Judges who delivered their ophiions were, Pop- liam. Chief Justice of England ; Anderson, Chief Jus- tice Common Pleas; Periam, Chief Baron; Justice Clench, Baron Clark, Justice Gawdy, Justice Walmes- ley. Justice Fenner, Justice Beamond, Justice Owen, (r) 1 Rep. 120. and OP SCINTILLA JURIS. 25 and Bavon Ewens ( I ) . They delivered their opinions seriatim, which occupied six days. Periam and Wahiiesley argued that the use was not destroyed. They held, that it would be against the meaning and letter of the statute to say any estate,, or right, or scintilla juris should remain in the feoffees af- ter the statute of 27 Hen. VIII. for it appears by the preamble, that the makers of the act intended to eradi- cate the whole estate of the feoffees ; and by the letter of the body of the act the whole estate, right, title, and possession, is in the cestui que use. The Chief Ba- ron said, that Dyer's scintilla juris was like Sir Tho- mas Moore's Eutopia, nor did Walmesley treat it with more respect. They insisted that the seisin which the feoffees had at the beginning by the feoffment, would be sufficient within the act to serve all the uses, as well future when they come in esse, as present, for there needs not many seisins, nor a continued seisin, but a sei- sin at any time, so a seisin at one time would suffice ; for the statute says, seised at any time, and it would be hard, v/hen the statute requires but one seisin at one time only, that many seisins, and at several times against the intent and letter of the act, should be required. But then Walmesley insisted, that the future use not having been in esse, could not be suspended ; nothing re- mained in the feoffees, therefore they could not affect it ; the persons taking under the same seisin could not affect (I) It is observable, that not one of the several Judges whd had al- ready had occasion to consider this point, was then on the bench. They were Dyer, Manwood, Harper, aad Mounson ; Wray, Southcote, and Geoffries. , it. 26 OF SCINTILLA JURIS. it, as it did not derive its essence from their estate, but from the original seisin j and Periam aicreed with him, and held, that these uses were innuhihus, and in the pre- servation of the law : and he insisted that the statute did not require the cestui que use to be in esse. On the other hand, the remaining nine Judges, or at' least eight of them, agreed that the feoftVaent made by the feoffees who had an estate for life hy limitation of the use divested all the estates and the future uses also, for these uses ought to be subject to the rule of law, which in this respect is, that he in the remainder must take the land when the particular estate determines, or else the remainder shall be void ; and there is no difference when the estate of the tenant for life determines by his deatli, and when it determines in right by his forfeiture, for in both cases entry is given to him in the next remainder, and then if he cannot take the land when the particular estate determines the remainder is void. And they held, that the statute could not execute any uses that were not in esse ; and, after arguing that tho statute did not divest the feoffees of the estate, it was held by the two Chief Justices and Fenner, Beamond, Owen, and Ewens, that the, /eq^ees, since the statute , had a possibility to serve the future use when it came in esse:, and that, in the mean time, all the uses in esse shall be vested, and when the future use comes in esse, then the feoffees (if the possession be not disturbed by disseisin or other means) shall have sufficient estate and' seisin to serve the future use when it comes in esse, to be executed by force of the statute, arid that seisin and execution by force of the statute ought to concur at one and the same time. And they held, that if the possession was disturbed by disseisin or otherwise, the feoffees OF SCINTILLA JURIS. 27 feoffees ijcoulcl have power to enter to revive the future uses according to the trust reposed in them, unless they did hy any act bar themselves of their entry. But the resolution of the eight Judges was merely that contin- gent uses might be destroyed oi- discontinued before they came in esse, by all such means as uses might have been discontinued or destroyed by the common law j but Pc- riam and Walmesley did not agree to this. It appears (5) that Gawdy was for placing contingent uses on exactly the same footing as contingent remainders ; and Clench entirely agreed with him. Gawdy's opinion is worthy of observation ; he conceived that the use was executed by the intent, but not by the letter^, of the sta- tute, for the purpose was to remove all the estate from the feoffee, and to put it in cestui qtie use wholly, (to wit) in possession to the uses which were iji esse, and in abe} ance as to the uses which were to come and con- tingent, and now by the same statute the contingency of the possession shall go in lieu of the contingent use, and now an use limited to one for life, w4th remainder over to the heirs of the body of J. S. shall be in the same manner as if land at this day had been letten to one for life, with remainder over to the heirs of the body of J. S., for the quality which he had in the use, the same (by the very letter of the statute) he shall now have in the possession and estate of the land, and the statute i» not to undo any use, but to transfer an estate in the land to the use. But then he agreed that, by the feoffment, the contingent use was utterly destroyed, in the same manner as where a lease is made for life, the remainder to the heirs of the body of J. S., if the tenant for life (s) Poph. 70, 1 Rep, 135 a. dieaif 38 OF SCINTILLA JURIS. diesj or commits a forfeiture, and determines his esta,i6 in the life of J. S,, his heir shall never have the land by remainder^, because he was not in esse as an heir at the time when the estate ended. As to the principal doctrine, it is merely said in Popham's own arguw ment, '' And iiotaj that by a disseisin, the contingent use may be disturbed of his execution, but there by the regresse of the feoffee, or his heirs, when the contingent happens, it may be revived to be executed. But by the release of the feofi'ce, or his heirs, the contingent in such a case, bi/ Popliam/' (observe), " is barred of all possibility at any time to be executed." And accord- ing to his own report, he said plainly, that if the ex- position made on the other side shall take place, it wili bring in with it so many mischiefs and inconvenien- cies to the universal disquiet of the realm, that it will cast the whole commonwealth into a sea of troubles, And endanger it withutter confusion and drowning ! ! Lord Chief Justice Anderson's report of this case is indisputably the best(i), from which it appears clearly, first. That the Judges were of opinion, that not a mere scintilla remained in the feoft'ees, but a sufficient estate to support the uses ; and they argued by analogy to the statute of Richard the Third, which enabled cestuis que use to grant their estates as if they were seised of the freehold; and upon that statute it was holden, that where a man was seised to the use of one for life, the remainder to another in tail, the grant of the tenant for life did not affect the estate of which the feoffees were seised to the use of the tenant in tail ; and, (/) 1 And. 309. secondly. OP SCINTILLA JURIS. §9 secondly, that they went upon the intention of the sta- tute to extirpate uses, and the mischief which would ensue from supporting them. When Chudleigh's case is attentively considered, our surprise cannot fail to be excited at its ever having been considered as a decisive authority for the doctrine in question. The opinion of the six Judges on this point, as stated by Coke, was merely an obiter dictum ; and there even appears to be reason to doubt, whether any such opinion was ever delivered (I). In Lord Chief Justice Popham's report of the same case, this opinion is given as coming from himself only. And Lord Chief Justice Anderson, who is made by Coke to concur in this opinion, reports no such matter in his book, but states the opinion of the Judges very differently. Finch, in ar- guing the case of Heyns and Villars (w), said, that it is reported by the Lord Anderson in his private reports, that the Lord Coke ( at that time Attorney-General ) has greatly abused him and others of the Judges, in reporting such judgments and resolutions, in Shelley and Chudleiglis case, as they never delivered. Ander- son's severe censure of Coke's report of Shelley's case is in print, and well laiown, but I have not met with the observation alluded to on Chudleigh's case. It is (w) Infra. (I) Let not our just admiration of Sir Edward Coke's profound legai learning carry us too far. His system of turning every judgment into a string of general propositions or resolutions, has certainly a very im- posing appearance, but it is a system of all others the least calculated to transmit a faithful report. Is it not to be feared, that the bias of a man's own sentiments may involuntarily lead him to pervert the opinions oil' others, in order to support his own ? observable, so OF SCINTILLA JURIS. observable, that Finch speaks of the private reports of Anderson, and he must have seen the manuscripts of them, as his argument was deliverer in 1658, and the first edition of Anderson was not publislicd till 61 years after. The fact, therefore, cannot be doubted, although the censure is not in print. Finch also referred to Pop- ham's reports, p. 83, where it appears, that the opinion respecting the scintilla juris was delivered by Popham only. We may, therefore, safely conclude, that this opinion was merely an obiter dictum of Lord Chief Justice Pop- liam's. Indeed, had the whole Court delivered this opinion, yet it would not at this day he entitled to much attention. All the settlements in the kingdom are made by way of use, which is there styled impious ; and it is observable, that Coke calls, the case Chud- leigh's case, "^ commonly called the case of perpe- tuities.'' No settled notions then existed as to the time within which contingent uses might be raised ; and it is evident, that the Judges were alarmed lest they should introduce perpetuities. Pollexfen, in his able argument in Hales and Ris- jey(a?), against the necessity of the feoffees entering to vest contingent uses, says. That at the time Chud- leigh's case was adjudged, it was not taken for law, that the destruction of the particular estate by feoffment or conveyance, before the contingent remainder came in esse, was a destruction of the contingent remainder. And that though this was so adjudged in Archer's case, (Co. 66), and though that case was reported before Chudleigh's case, yet, that it appeared that Chudleigh's case was (x) Pollex. 389. first OF SCINTILLA JURIS. 31 first adjudged. Pollexfen was right as to the time the cases were adjudged. Chudleigh's case was decided ill the 37th, and Archer's in the 38th of Elizabeth, but the last case was first heard in the 36th of Elizabeth ; and the opinion of the Judges was, that the coiitingent remainder was destroyed by the destruction of the parti- cular estate. The decision in Chudleigh's case certain- ly, however, settled this doctrine, and was determined on that point simply ; and that decision has always been adhered to (7/). The argument upon the statute was merely to show, that contingent uses were not pro- tected against the eifect of the feoffment. The points decided, were, first, that the contingent uses were de- stroyed by the feofrmeiit of the tenants for life, by ana- logy to the rule of law ; and, secondly, that they were not saved by the letter or equity of the statute. We should never have heard of this fiction, had it then been settled as I apprehend ii now is, Ist. That where such a construction can be put upon a limitation, that it may take effect by way of remainder, it shall never take place as a springing use, (and it even seems to be law, that where a limitation was intended to take effect as a remainder, and cannot, it shall not be supported as a springing use ) . 2dly, That a contingent use, or re- manider, must take effect, if at all, eo instanti, that the preceding estate ceases ; and, 3diy, That springing uses must be so limited, as to take effect, if at all, within the period of a life or lives in being, and 21 years afterwards and a few months, allowing for gesta- tion. Perhaps it is not clear that the 21 years and a few (y) Bolls V. Smith, Mo. 54:5 ; 2 Ro. Abr. 794-, pi. 3. nom. Smith ▼. Belly ; and see Anon. 2 Leo: 178. 3 Leo. 252, and 4 Leo. 233; and Biggot V. Smyth, Cro. Car. 102. months 32- OF SCINTILLA JURIS. months can be taken independently of the biFth and in- fancy of the cestui que use. These rules leave no dan- ger to be apprehended from useS;, and they must now be supported as the common assurance of the realm. Hitherto we must admit that this doctrine of sciniilld juris was not settled. The case of Wegg and Villcrs, which first came oii in *24 Car. 1. is very important on this point, not, indeed^ in regard to the judgment^, but by reason of the dicta of the Judges. The case was^ that Sir Edward Coke covenanted to stand seised to the use of himself for life, remainder to the use of his wife for life, remainder to the use of his daughter for life, remainder to the use of her first and other sons snc~ cessively, in tail, reversion to the use of his own right heirs, and afterwards he granted the reversion without consideration, and the former settlement was recited in the deed, and then he made a feoft'ment of the lands, and the daughter had issue a son. Sir Edward died, the wife entered, then the daughter died, and then the wife, and it was resolved that the grant did not prevent the contingent uses arising, because it was without consi- deration, and the first uses were recited in the grant, so the grantee had notice, and therefore took the lands subject to the grantor's co\enantto stand seised, and the feoflment did not destroy the contingent estate, because the right of remainder for life in the daughter, upon which she might have entered, for the forfeiture sup- ported it; for the feoffment of Sir Edward was a for- feiture of his estate for life, and of the estate of his wife in remainder during the coverture, so that the daughter might have entered for the forfeiture during the coverture, and this right of entry was sufficient to sup- port OP SCINTILLA JURIS. ^ port the contingent remainder to the sons without ques- tion ; an,d when Sir Edward died_, and his wife entered, that reduced her estate for life, and the estate of her daughter for life, and so the contingent use was reduced also, and vested by force of the statute of uses in the first son of the daughter. But it was holden by Glyn, Chief Justice, that if in this case the feoffment had been made before any grant of the reversion, the con- tingent use would have been destroyed notwithstanding the right of entry in the daughter (2). Lord Chief Justice Roil states, tha:t in the debate of this case, he and his brothers Nicholas and Aske came to five resolutions. 1st, That the estate of a tenant for life in remainder, under a feoffment, would support contingent uses, by reason of his right of entry against the feoffment of the immediate tenant for life. 2dly, That the entry of such remainder man, whe- ther in the life-time, or after the decease, of the first tenant for life, would reduce the remainders. 3dly, That, if such an entry was not made, the con- tingent cestui que use coming in esse could not enter ; " but, in this case, the first feoffees may enter to revive this contingent use, and then, by their entry, the con- tingent use shall be settled and executed in the persons entitled to it by the statute of uses ; for there is a scin- tilla juris in the feoffees to enter in such cases of neces- sity to revive contingent uses, because, otherwise, the contingent use will be destroyed." 4thiy, That when a feoffment is made to certain uses (z)2 Ro. Ab. 796, pi. ll;2Sid. 6i, 98, 129, 157, nom. Heyiis v. Villers. D with 34 OF SCINTILLA JURIS. with renuiinder over in contingency, and no estate left in the feoffees^ and then the feoftees enter on the land and disseise the tenant in possession, and make a ieolKinent in fee, this does not destroy the contingent use, if the tenant in possession, or any one in remainder, in whom an estate certain was settled hefore the feoffaicnt re-en- ters, for his entry shall reduce all the coutingeiit remain- ders, and make them capable of execution by the sta- tute of uses ; bctause the feoffees are, as it were, con- duits to convey the estates, and have not any power left in them to destroy contingent uses. And, lastly, Thst when a feoliment is made to cer- tain uses, with divers remainders over in contingency, and no estate left in the feoifees ; yet if the estates in esse are divested before the events happen, and then tha contingenciv^s happen during the divestment, and then the estate in esse determine before any re-entry; if the feoffees release all their right in the land, or make a feoffment of the land, or bar their entry by any other means, in tliat case the contingent use can never be re- vived so as to be executed by the statute of uses, be- cause the feoffees who had srinlilla Juris in them, in case of necessity to revive the contingent uses, have barred their entry to revive the contingent uses, and no other can enter to revive them, so that they cannot be executed by the statute. "When the same case came before the King's Bench, Newdigate, Justice, thought, that rather than a con- tingent use should be destroyed, the covenantees might employ their scintilla juris to preserve them. And Glyn, Chief Justice, held, that the uses were executed by the covenant, but the contin^;ent uses were not; and where it is said by some that the estate that feeds them i* OF SCINTILLA JURIS. 35 is in nuhihus, and hy others in terra, and by some other in custodia legis, until the contingency happen ; yet he heldj that they are preserved by a scintilla juris, which term was first invented by my Lord Dyer. Now these resolutions, which are all in the books on this point that can be considered as of any authority, were probably founded on Chudleigh's case, as reported by Coke, and at most were mere dicta, not in any wise necessary to the decision of the court. The two last re- solutions it is impossible to reconcile. It is first holden, that a tenant for life may re-enter and revest the scintilla in the feoffees against their own feoffment, " because the feoffees are, as it were, conduits to convey the estates, and have not any power left in them to destroy contingent uses:" and, sacondly, that if the estates in esse are divested, the feoffees may then, by release, &c. destroy their right of entry, and so for ever destroy the rising of the contingent uses : that is, " although they have not any power left in them to destroy contingent uses," yet when their entry only will, according to this doctrine, revest the uses, then they may effectually over- throw the settlement. What is this '' scintilla juris et tituli ?" If it be an actual interest, it cannot be revested in the feoffees against their own feoffment. If it be not, why should it not be considered in the same light as a collateral power, which the donee cannot destroy. Wegg and Villers's case arose upon a covenant to stand seised. So did Perrot's case {a), which was decided on a point of pleading, or, at least, it was not decid- ed upon the doctrine under consideration (^fcj. It is observable, that in this case, Moore treated it as a (c) Mo. 368 ; 36 and 37 Eliz. (IJ See 2 Ro. Abr. 795, pi. 8. o 2 doubtful ^^ OF SCINTILLA JtRlS. xloubtful pointj whether at that daj a future use was a real interest, or thai a seisin was requisite at the instant of its rising as it was before the statute of uses. In AVood V. Reignold (cj, and Boutd and Winston (dj, the question was, how far uses under a covenant to stand seised could be destroyed, or how far they could be bound by a lease granted by the covenantor before the arising' of the use. The point underwent great conside- ration. But, in the first case, no judgment was given; in tlic second, the reporters differ as to the judgment. Sir Thomas Palmer's c'd.se(ej^ likewise, was a cove- nant to stand seised to the use of himself for life, remainder to Thomas Palmer, his nephew, for life, remainder to the first and other sons of Thomas Palmer in tail, remainder to the right heirs of himself. He was attainted and executed before the birth of any son of Thomas ; and it was resolved by Flemming, Chief Jus- tice ; Coke, Chief Justice; and Taiifield, Chief Baron; that by the attainder before the birth of the son, any after-born son was barred, and the crown had the fee simple discharged of all the remainders limited to the sons unborn. Bat note^ the reporter adds, that for sun- dry vehement presumptions of forgery of the deed of covenants it was censured and damned. And three years afterwards the sole question in a case was, whether an use arising by covenants to the right heirs of a daughter yet alive, should so far transfer the remainder in abey- mice, that it should not be as a reversion still in the covenantor, whereof livery should be sued after his death, becaiise there was no person in being (which (c) Cro. Ellz. 761', 854 ; ^l and 4-2 and see Barton's case, Mo. 742. £li2. (e) 9 Jac. Mo. 815. See Fearne, {d) Cro. Jac. 168, Nby 122 ; 4 Jac. 426. is OF SCINTILLA JURIS. 37 is the word of the statute of uses) in whom the land may \cst(f); and the decision in Hales p. Risley (g-) seems to be in favour of contingent uses under covenants to stand seised (I). Indeed, the author of the celebrated treatise of equity (/?) refers to this case, as having settled in opposition to the former authorities, that to the rais- ing of the future uses after the statute the regress of the feoffees is not requisite, and that they have no power to bar those future uses, for the statute has taken and trans- ferred all the estate out of them, and they are as mere instruments. So that contingent uses do now, like other contingent remainders, depend upon the particular estate. We have now gone through all the cases on this sub- ject. The positions which thev are generally thought to establish are, — 1. That a scintilla juris remains in the feoffees, releasees, or con usees to uses to support and feed the contingent uses as they arise -, — 2 That if a Gontinorent use be divested, an actual entry must be made to revest it, although a riglit of entry is suiiicient to support a contingent remainder at common law ; and, 3. That by force of this scintilla the feoffees, &c. may enter to revest the contingent uses, and by a parity of reason may, b}' release, feoffment, &c. destroy their scintilla, and so prevent the uses arising. We have seen that this doctrine has never received a judicial decision. There is not a single case in the books (/) Barnes's case, Hob. 7^. (A) Book ii. chap. 6. s. 2. (l) Poll. 369. (1) The profession has great reason to lament that Pollexfen did not preserve a note of the judgments of the court as well as of his own ar- guments. D 3 in 38 OF SCINTILLA JURIS. ill which it was iieccssarj to decide the point. The au- thorities have^ indeed, heen generally treated as decisive of the contrary doctrine, but independently of there being no decision on the point, it will appear from the foregoing cases, that the following eight Judges, viz. Wray, Chief Justice; Periam, Chief Baron; and Mounson, Harper, Southcote, Walmesley, Gawdy, and Clench, ailliough they differed in some respects, were all of opinion that no right or interest was left in the feoffees. Lord Hardwicke, in one of the ablest judg- ments ever delivered, said, that in order to determine Chudleigh's case, the Judges entered into very refined and speculative reasonings, some of which (he said he spoke it with reverence) were not very easy to compre- hend (z) : and Lord Chief Justice VVilles, in delivering judgment in Parkhurst Xh Smith (Ji), treated this doc- trine of scintilla as a great stretch in the court, and a commendable astutia to invent a method to prevent the statute of uses working a wrong, and overturning the intent of the parties. Therefore, had he seen that this invention itself overturned the intent of the parties, it is evident, that he would have discountenanced this great stretch, and not have considered it a commendable astutia. There are only two or three more Judges on the other side of the question, if we admit the authenticity of Coke's report of Chudleigh's case ; and even some of these judges thought that the feofi'ees took not a mere scintilla, but a fee simple determinable ; a doctrine which is now entirely exploded. But if we consider Coke's report as inaccurate, which in this re-: (i) Garth v. Cotton, 1 Dick. 18S ; (A) Willes^ 341. and see Haid. 417. gpect OF SCINTILLA JURIS. 39 ipect it evidently is^ then the preponderance of autho- rity is greatly against this fiction. Considering the point then as still open, we may shortly notice the inconveniencies of this doctrine, and how it relates to the subject before us, and then show by what construction these difficulties may be avoided, and the common law restored, so far as it can consistently with the doctrine of uses ; and this will involve the con- sideration of the real meaning of the statute. I shall first dismiss from my consideration tiie cases which have arisen on covenants to stand seised, nor shall I consider the nature of contingent uses limited on a bargain and sale. These conveyances do not operate by transmuta- tion of possession, but the estate remains in the cove- nantor or bargainor, and the uses are fed out of his sei- sin as they arise. In this respect, they are very distin- guishable from conveyances which do operate by trans- mutation of possession, as feoffments, releases, fines, and recoveries. These vest the fee simple in the feoffees, &c. and the uses arise out of their seisin. Now, cove- nants to stand seised are at this day w hollj' disused, any further, indeed, than a defective feoffment, bargain and Kale, or release, may, Avhere there is a suflicient consi- deration, in favour of the uitention, be construed a co- venant to stand seised. And as to bargains and sales, I apprehend, that contingent uses to persons not in esse frannot be raised upon them. The following observa- tions, therefore, are confined to uses raised by those conveyances only which do operate by transmutation of possession. First, then, as to the mischievous tendency of the doc- trine under discussion. Take a common marriage set- D 4 tlement 40 OF SCINTILLA JURIS. tlement to father for life, remainder to his wife for life, with proper limitations to preserve remainder, to the sons in tail. If, as Mr. Fearne remarks, the father should divest the estates, an actual entry must either be made by the mother, or the trustees to preserve, or the re- leasees, supposing them to be difl'erent persons, op the contingent uses to the unborn sons would be de- feated (/). This is a point never attended to in practice. And Lord Chief Justice PoUexfen has observed (m), that ^' it must not only be enquired vv hat acts the te- nants for life have done before the contingent uses came in esse, but it must also be known whether the feoffees or their heirs have done no act before those remainders came in esse, whereby these remainders should be de- stroyed." Besides, if we hold that the releasee to uses must have a seisin at the time the contingent use arises, •we are bound to enquire whether there is such a person in existence. There may be no such person, and thus half the settlements in the kingdom mav be defeated. The doctrine applies with equal force to powers, the estates to be created by them are as we have seen contingent uses, and may, under this doctrine, be ia like manner destroyed by the destruction of this scin- iilla juris. It would be impossible, perhaps, at the same time, to maintain, according to the fourth resolu- tion in AVegg and Villers, that if the releasees were to disseise the tenant for life, and make a feoflment, his en- try would revest the scintilla and so support the uses. We should be told more precisely the nature of this seii*{n. It is clearly descendible we learn, but is it srant- f^lsi,' and devisable ? Will it escheat ? These and many {^l) I ream.', 443. (w) Poll. 38 1-, more OF SCINTILLA JURIS. 41 more questions must be solved if this fiction is to be supported. But if limitations to uses can consistently with the statute be construed in like manner as limitations at com- mon law, no mischief will ensue. The law will then be uniform and simple. An use limited to A for life, remainder to trustees to |)reserve remainder to his first, and other unborn sons in tail, would stand in the same condition as a feoffment at common law to the same uses ; the use to A would be nested, and the uses to the sons would be contingent remainders or uses depending on the particular estate, and in case of a feoliment, &c. hy the tenant for life would be supported by the right of entry in the trustees, if there were any powers in the deed, the estates to be created under them would, in like manner, be preserved. The releasees to uses as such could neither destroy nor support the contingent uses : and now that uses are in most cases subject to the same rules as contingent remainders, such a power is wholly unnecessary. Lord Chief Justice Wray's construction of the sta- tute is the best, viz. that it draws the whole estate of the land, and also the confidence, out of the feoffees ; the whicli by the operation of the statute shall render the use to every person in his time, according to the limita- tion of the parties, or, in other words, the true con- struction is this, that upon a conveyance to uses operat- ing by transmutation of possession, immediately after the first estate executed, the releasees to uses are divested of their whole estate ; the estates limited previously to the contingtnt uses take effect as legal estates ; the contin- gent uses take effect as they arise, by force of, and rela- tion to, the seisin of the releasees under the deed ; and any 48 OF SCINTILLA JURIi. any vested remainders over take effect according to the deed, subject to open and let in tlie contingent uses. This, if established, would at once overthrow the fic- tion of scintilla juris, and with it the necessity of an actual entry to revive contingent uses ; and would in every other respect place contingent uses on the footing of contingent remainders, which Gawdy thought wa» the real intent of tlic act. To ascertain v.hether this was the intention of the legislature, it will be necessary to keep in view the provi- sions of the statute, which are — 1. That the cestui que use shall be deemed in the possession of the land for the like estate as he had in the use ; — 2. Tliat the estate of the feoffee, &c. to uses shall be deemed to be in cestui que use ; and, 3. After providing for the case of joint feoffees to the use of one of them, there are two savings, the one of the rights of all persons " other than those persons which be seised, or hereafter shall be seised of any lands, &c. to any use, confiJence, or trust;" and the other of the estates of the feofi'ees to uses in their own right. Mr. Fearne, who combats this doctrine ofscintillaju- ris, so far as it is supposed to render an actual entry neces- sary to revest contingent uses divested, argues from the words of the act, which are, that where any person is seised to the use of others, such other persons shall be deemed and adjudged in lawful estate and possession, &c. to all intents, constructions, and purposes in the law of, and in such like estates as they had in the use, &c. But perhaps this is not the strongest ground that can be taken, as the majority of the Judges in Chudlcigh's case held decidedly^ that by force of these words contingent uses were not executed by the statute, inasmuch as it is re- quired. OF SCIISTILLA JURIS. 43 quired, that there should be a person entitled to the use before the statute can operate ; and thej said it was clear that none can stand seised to the use of hiiu who is not, neither can he who is not in rerum natura have any use. It is not, however, necessary for us to contend against this opinion. Lord Chancellor Bacon in his reading on the statute of uses, which was delivered a few years after the deci- sion in Chudleigh's case, admits that the statute did not intend to execute contingent uses {n) ; but, nevertheless, holds that the word " clearly" in the clause, that the estate of the person seised io the use shall be vested in the cestui que use, seemed properly and directly to meet with the conceit of scintilla juris {!), as well as the words in the preamble of extirpating and extinguishing such feoffments, so that their estate is clearly extinct (o). And, speaking of the savings, he observes (/>), that '' the tirst and second cases are not penned with an ac si, but absolute, that cestui que use shall be adjudged in estate (n) p. 42. (o) p. 47. (/>) p. 50. (I) In this passage the word conceit is evidently used in a sense of con- tempt, and from this it may be inferred, that Bacon did not consider the doctrine as decided. He would never have treated that as a conceit which all the Judges had decided to be the law of the land. He himself was Counsel in Chudleigh's case, and he had no reason to be out of temper with the decision, as his client the Defendant had a verdict. Indeed, he opens his discourse with a declaration, that by Chudleigh's case the sta- tute was reduced to a true and sound exposition, and that he was induced to consider the statute with a view to correct the many doubts and per* plexed questions which had since arisen, as, he observes, it cometh to pasa always upon the first reforming of inveterate errors. and 44 OF SCINTILLA JURI8< and possession, \vliich is a judgment of parliament stronger than any fine^, to bind all rights ; naj, he ob- serveSj the first clause hath farther words^ namely, in lawful estate and possession, which maketh it stronger than any in the second clause. For if the words only had stood upon the second clause, namely, that the estate of the feoffee should be in cestui que use, then perhaps the gift should have been special, and so the saving superfluous : and this note is material in regard of the great question, whether the feoffees inai/ make any regress ; M'hich opinion, I mean that no regress is left unto them, is principally to be argued out of the savings, as shall be now declared : for the savings are two in number : the first saveth all strangers rights, with an exception of the feoffees ; the second is a saving out of the exception of the first saving, namely, of the feoffees, in cases where they claim to their own proper use. It had been easy in the first saving out of the statute, other than such persons as are seised^ or hereafter shall de seised to arnj use, to have added to these words, ex- ecuted 1)1) this statute; or in the second saving to have added unto the words, claiming to their proper use, these words, or to the use of any other, not executed hy this statute : but the regress of the feoffee is shut out between the two savings ; for it is the right of a person claiming to an use, and not unto his own proper use ; but it is to be added, that the first saving is not to be understood as the letter implicth, that feoffees to use shall be barred of their regress, in case that it be of another feoffment than that whereupon the statute hath vvroiigiit, but upon the same feoffment ; as if the feoffee to an use before the statute had been disseised, and the disseisor had made a feofimcnt in fee to I. D. his use, and OP SCINTILLA JURIS. 45 and then the statute came: this executeth the use of the second feoffment ; but the first feoifees may make a re- gress, and they yet claim to an use, but not by that feoffment upon which the statute hath wrought." It is clear, therefore, that Lord Chancellor Bacon, who has written so profoundly on uses, thought, that although contingent uses were not executed by the sta- tute, yet that there was no scirdilla in the releasees, and that they could not enter. Bacon's last editor, however, to whom the profession is indebted for a very correct edition of his valuable \vork, has controverted every one of these positions (J)). This writer goes over the old ground as to the statute requiring a person to whose use another is seised. He adverts to Mr. Fearne's sentiments on this point ; and says, that the doctrine which Mr. Fearne opposed was jirmJy established hy the decision in Chudleigh's case. How then, he asks, came it to pass, that Mr. Fearne, in questioning the soundness of that doctrine, confined his strictures to the extra-judicial resolution of the Judges in the case of Wegg and Villers, w^hen there lay in his path a solemn adjudicatiGn in favour of it. He adds, that it is evident, that Mr. Fearne wJwlli/ misapprehended the principle of the decision in Chud- leigh's case, for he attributes that decision to the deter- mination in law of tHe particular estate by forfeiture before the birth of the son to whom the continjrent use is limited. The foregoing observations have, it is hoped, demon- strated that the point in question was not decided by Chudleigh's case. It will not be difficult to show (b) N. (k) p. 131 ; N. (f) (g) p. 150, 151 ; N. (u) p. IGi. that 46 OF SCINTILLA JURIS. that Mr. Fearne clearly comprehended the principles upon which that case was de), nn estate was conveyed to a trustee in fee, in trust, to pay the rents to the separate use of a woman for life, and, after her decease, in trust, for such uses (Z) Corker v. Ennys, ib. (o) And see Mayor, Sec. of Car- (m) Eaton v. Jaqucs, Dougl. 4;45. lisle v. Blamire, 8 East 487. (n) Woodfall's L. and T. llSj (p) For. 41. Abbot on Mercli. 14, n. b. as POWERS APPENDANT, C\ as she should by will appoint;, and for want of appoint- ment to her own right heirs. She joined with her husband in conveying the estate by demise, with a fine to a mort- gagee. And it was insisted for her, that she had but a mere naked power witliout any interest, and could not be barred by the fine. Lord Talbot, however, held, that it was a power coupled with an interest, and an- nexed to her inheritance, and so destroyed bv a fine, since that a lease and relea ?e, or any other conveyance, will carry with them all powers that are joined to the estate. This case appears clearly to answer an objection some- times taken, that where the pov/er only authorizes a dis- position by will, the title cannot be accepted ; for it is clear, that whi're the party could convey the fee if the power were void, he may make a good title, as he would not be permitted to avoid his own grant by a future ex- ercise of the power. But, where he cannot convev the fee independently of the power, the objection holds as if he was tt^nant for life of the legal estate, remainder to such uses as he should appoint by uiill, remahider to a trustee in fee, in trust, for his right heirs, there the estate for life and remainder cannot coalesce, but his right heir wouUltakeas a purchaser, and, consequently, the destruction of the power would not help the pur- chaser (<7), It is to be observed, that as to the destruction of the power the eilect is the same, although the estate is con- veyed by operation of law. Thus, it has been determined, that where a man, tenant for life, with remainders over, and the ultimate remainder to himself in fee, with ». (y) See Parkes v. White, 11 Ves. jur. 209. power Wo EXTINGUISHMENT OF power of revocation^ became bankrupt, the life estate and remainder in fee vested in the assignees, and his power of revocation was gone (r). IV. As to the extinguislwient of powers collateral or in gross. An assignment of totum statum sniim, or other alteration of the estate for life, does not affect such u power, so if the donee be tenant for years, and survive the years, still he may exercise his power (9), because the power does not fall within the compass of his estate, but takes eifect out of an interest not vested in him. And although the tenant for life assume to pass a fee, yet, if he convey by an innocent conveyance as a bargain imd sale(/), covenant to stand seised, or lease and re- lease (w), the power will not be destroyed, and, that, for this obvious reason, that the conveyances enumerated pass only what the tenant for life lawfully may pass, viz. his estate for life ; so, if the donee of a power in gross be only tenant for years, an assignment of his whole term will not defeat his power (^w). And by a pa- rity of reason, a reconveyance or reassignment to the donee of the power will not affect it. The cases have generally turned on particular powers, as a power of jointuring, or a power of charging with younger children's portions, but they seem to establish this general principle, that every power in gross may well be exercised, although the donee may have previ- ously parted, by an innocent conveyance, with the estate (r) Anon. LofFt. 71. Scrope v. OfBey, 4 Bro. P. C. {s) Savile v. Blackct, 1 P. Wms. 237. See p. 241, where it ap- 777. pears, that the appointee rcoD- (/•) Edwards v. Slater, Hard. 410j vered in ejectment. Jenkins ij. Kemis, 1 Ch.ca. 103. (w) Savile v. Blacket, 1 P. Wms. (u) Phitton's case cited. Hard. 412 ; 777. to POWERS IN GROSS. 63 to which it was annexed, in privity. Where a persou is tenant for life, with a power to appoint the reversion ; or tenant for life, with remainders over, with a powder of revocation; in the first case, the power is wholly a power in gross ; in the second, it is in gross as to the re- mainders, although appendant to the life estate. But, nevertheless, it has been doubted, whether, in either case, the donee can exercise his power after having departed with his life estate. Mr. Booth, it seems, entertained this doubt. It is said, that in a case where A was te- nant for life, with remainder to such uses as he and his wife, notwithstanding her infancy, should appoint j and they executed an appointment during her infancy, and A conveyed his estate for life, by lease and release, by way of mortgage; he (Mr. Booth) doubted whether a new appointment, on her coming of age, would make good the security, the husband having parted with hi» estate for life, isjhich (he thought) destroyed the power of appointmejit. To avoid any doubt on this point, where A is tenant for life, rem.ainder as he shall appoint, it is usual to first appoint the estate, and then convey the life estate. And this, it is quite clear, may be done hy the same deed, although, ex abundanti cauteld, some have exercised the power by one deed, and conveyed the estate by another. It will here, however, be proper to enquire, whether the above opinion can be supported. A diflerence of opinion has certainly been expressed. la Roll's report of Snape and Turton {x), the court said, that if tenant for life, with power of revocation, makes a lease for life, that suspends his power as to the fee. This, however, it is conceived, meant only that he could (x) 2 Ab, 263, pi. 2. 64 EXTINGUISHMENT OP not defeat the lease for life. In Clarke x'. Philips (j/), it is said, that Keeling and Twisden were of different opinions in this point, viz. If he that hath power of revocation over lands make a lease for life, whether it suspends the power only, as a lease for years would do, or extinguish it as a feoflment ( I ) . And, in Herring v. Brown, Justice Lutwich said, that if a power of revo- cation is annexed to an estate for life, and that estate determines before the power is executed, by that means the power is extinguished {■:). This is all the authority that I have met witli in favour of the extinction of the power, and it must be admitted not to be of much weight. For Keeling and Twisden were opposed to each other,, and Justice Lutwich's opinion in Herring and Brown was over-ruled by six Judges. On the other hand, the decision in Edwards v. Slater is directly the other way. There the donee made a bargain and sale in fee, and Lord Chief Justice Hale expressly said, that if the hargainor had a power of revocation, he might ivell execute it after the executing this convetjance («) : and he said, that if the tenant for life had a power of revocation, and should make a lease, that would not destroy his power, because no estate is displaced hjj it. So, in Savile v. Blacket {h), there was a tenant for 99 years, if he should so long live, with a power to charge the lands ; and Lord Macclesfield held, that he would (j) ] Vcntr. 42. (^) Hard. 4-15. («) Carth. 24-. {b) 1 P. Wms. 777. (I) Keble states, that Keeling and Moreton were opposed to Twis- den. Neither of the reporters states what estate the donee of the power had. 2 Keb, 555^ nom. Clerk v. Py well. have POWERS IN GROSS. 65 have had this power though he should have survived the term of 99 years ; for still he might have charged the premises therewith ; so might he have done though he had assigned over the term : and although, this case turned on a particular power^ yet it is impossible, with- out discarding all principle, to distinguish it from the case of a general power (Ij. Hale's argument, that a lease does not destroy the power of revocation because no estate is displaced bij it, applies as forcibly to a lease for life as a lease for years, and refers the doctrine to the true ground. The better opinion, therefore, clearly is, that the power is not in such case destroyed. The contrary doctrine appears to owe its origin to powers having heen on their first introduction after the statute of uses assimilated to conditions at common law, which they do not resemble. By the common law, if lessee for life, upon condition to have a fee, made a lease for life, that prevented the estate rising under the condition, because the privity of estate was destroyed (c). But this CGuld never apply to a power which is a mere decla- ration of trust upon which the statute of uses operates, ?ind this seems to have struck the Judges in Bullock v, Thorne {d), where Walmesley, Justice, held, that a lease for years does not suspend the power of revocation if it be raised by way of use, otherwise, if it is of a ■condiiion annexed to an estate in possession. And the tourt held, that, if one has a power of revocation en- tire, and he extinguishes, or suspends, the power in part, ■(c) Lord Stafford's case, S Rep. 73 . (d) Mo. 615, ■(I) See the observations on the suspension of a power, supra. 66 SUSPENSION^ &C. OF POWERS he may still revoke for the residue, if it he by way of use, hut not so of a condition atmexed to the land. V. As to cases common to both powers. A present power, not simply collateral, may be extinguished by release to any one who has an estate of freehold in the land, in possession, reversion^, or remainder ; and thereby the estates, which were before defeasible or chargeable by the proviso, are by such release made absolute (e) : and where in a deed executing a power there are words which shew that the party has fully executed his power^, or which amount to a release of it, he cannot execute it further (f) ; but the intention must appear clearly, therefore a declaration in dr deed partially executing a power of jointuring, that it is in bar of dower and thirds, and that the remainder-man shall have the sur- plus, will not operate as a release of the power, for they arc only Mords put in by conveyancers as of course (g). And where the power is future, and to arise by a con- tingent event, it may be defeasanced, and thereby ut- terly annulled {h). So it may be defeated in part. Thus, where a man had a general executory power of revocation, and he covenanted not to exercise the power without the consent of the Lord Keeper ; and granted that all revocations without such consent should be void, ii was determined that the power being executory might well he deft'ated by a subsequent deed (z). But it (e) Albany's case, 1 Rep. 110 b. bridge t;. Bayly, 1 Ves. jun.499. Co. Litt. 265 b, (h) Albany's case, uli sup. (/) See 2 Atk. 567. (0 Leigh a-. Winter, 1 Jo. 411 j (ii-) Hcrvcy V. Hervey, 1 Atk. and see Earl of Tankerville v. 56l J Zouch V. Woolston, 2 Coke, Mose. 146. BuiT. X136 ; ancl see Earl of Ux- seems APPENDANT AND IN GROSS. 67 seems to have been doubted whether a power can be re- leased in part ( ^ ) . If the tenant for. life levy a fine, execute a feoffment, or suffer a recovery, all his interest and power is forfeited and extinguished, and he gains a new estate by wrong (/). It is not material whether the power is present or future. Fines and feoffments. Sir Matthew Hale has observed, do ransack the whole estate, and pass, or ex- tinguish, all rights, conditions, powers, ^c. belonging to the land, as well as the land itself; so a recovery does not only bar the estate, but all powers annexed to it ; for the recompence in value is of such strong consideration, that it serves as well for rents, possi- bilities, &c. going out of, or depending upon, the land, as for the land itself (?«). Where the fine is levied to the tenant of the land, it will operate by way of extinguishment and release (n). But if the fine or feoffment only relate to part of the land, the power re- mains for the residue of the land (o) ; although in the case of a common law condition the entire condition would be extinct (Jj). But the acceptance of a feoffment by a tenant for life will not destroy a power in gross, as the power was never in the feoffor, nor reserved to him, and by the en- try of the remainder-man the estate created by the power will be reduced (a). (i) Digjres's case, Mo. 605 ; but Savile "3. Blacker, 1 P. Wms. 77/, see Countess of Roscommon •:;. (n) Bird =y. Christopher, Style 389. Fowke, 4Bro- F. C. 523. (o) Digges's case, ubi sup. (/) Albany's case, I Rep. Ill, 4 (p) Co. Litt. 237 a. Leo. 133, 219; Digges case, 1 (a) Hard. 417; see Shep. Touch. Rep. 175 a. Mo. 603; Edwards p. 14, as to the distinction be- t'. Slater, Hard. 410. tween levying and accepting a (»;) King V. Mtllinj, 1 Ventr. 225 ; Jine^ F 3 And 68 SL^SPENSION, &C. OF POWERS And there are cases in which a feoffment or fine will be deemed not an extinction of the power, but a fur- ther assurance of it, or at least merely void* Thus, if tenant for life, with power of leasingy make a lease by livery, the lease will take effect by the deed, and so th^ livery comes too late to do any hurt* This is an instance of a power appendant (b). So where a power in gross given to a tenant for life was well ex- ecuted by deed ; and he afterwards levied a fine, in pursuance of a covenant in the deed ; the fine was consi- dered inoperative, as the power was executed antece- dently to the fine Ccji In Bullock V. Thome (d), it was holden, that if tenant for life, with power of revocation, make a lease for years, and levy a fine for assurance of the lease without use expressed, the power of revocation is not extinct by the fine, but suspended during the term. In some cases, a fine, accompanied with a deed, will operate as an execution of the power. In the Earl of Leicester's case, the earl having a power of revocation, duly executed a deed, whereby he covenanted to levy a fine to other uses, and then levied a fine accordingly. It was determined, 1 st. That the covenant was not of itself a good execution ; but, 2dly, That the deed and fine taken together were a good execution of the power (e). In this case, however, it was doubted, whether the* power would not have been destroyed had the fine been {I) See 1 Veutr. 291. (e) 1 Ventr. 278. S. C.nom. Wig-' (c) Thomlinson v. Dighton, 10 son v. Garrett or Gerrard, 2 Mod. 71. 1-ev. 14.9 ; Raym. 239; 3 Keb. {d} Mo. 615*5 and see Ferret's case, 266, 489, 510, 536, 572 j and Mo, 368. _ see 1 1 Mod. IS*. levied APPENDANT AND IN GROSS, 69 levied before the execution of it. In a subsequent case, the precise point arose. A tenant fpr life, with power of revocation, levied a fine, and then, by a deed executed a short time after, declared the uses of it, and the deed was executed iu the manner required by the power. This case was argued by all the able men of the time, and it w^as determined by Lord Chief Justice Herbert, Hoiloway, and Wright, against Y/ithers, that the fine had destroyed the power. The main argument was, that the fine had destroyed the power, and then it could not be restored by the subsequent deed. From this judgment, how- ever, there was an appeal, and it was reversed by six Judges against two, principally on the ground that tlie fine and deed were but one and the same conveyance, and both together w^ere an execution, and not an extin- guishment of the power; for it was agreed, that a fine alone, without a deed, declaring the uses would have extinguished it, but it was said not to be so where there was a deed to declare the intention of the parties at the time of the levying thereof; and though the date of this deed was subsequent to the fine, yet that was for no other reason but because the fine ought to relate to the precedent term, though in truth it might be levied in the vacation, and so the deed might be executed at the same time the fine was acknowledged ; therefore it would be unreasonable to make a forfeiture or extin- guishment of a right merely by relation, which is but jictio juris {f) . ,. It is to be observed, that this case did not decide that a declaration of uses at any time after the fine would prevent the forfeiture, and operate as an execution of the veen a power of jointuring and a power of appoint- ing to children. In neither case is the donee compel- able to exercise his power ; and, in each case, the power is annexed in privity to his estate for life, and he has an interest arising from the exercise of his power by the benefits it enables him to bestow. In Edwards i;. Slater (m), a power to a tenant for life to create a lease for thirty- one years to commence after his death, was held by Hale, Chief Baron, and Baron Turner, to be a power in gross, (i) Vide s?iprap. 51. (Z) King -v. Melling, 1 Ventr. 225. {k) Edwards v. Slater, Hard. 410. {m) Hard. 410. and APPENDANT AND IN GROSS. 73 Stnd to be barrable by a fine or feoffment ; Lord Chief Baron Hale said, that where the power does not fall within the compass of the estate;, as where the tenant for life has a power to make an estate which is not to begin til] after his own estate is determined, such power is not appendant or annexed to the land, but it is a power in gross, because the estate for life has no concern in it; and yet such a power (he added) may, by apt words, be destroyed by release, or by fine, or feoffment, which carry away and include all things relating to the land. This case seems to govern the point before us. Sir Mat- thew Hale's definition of a power in gross clearly em- braces a power to a tenant for life to appoint the estate amongst his children after his death, and the cases are 'not easily distinguishable. The doctrine that powers of this nature cannot be re- leased or extinguished is by no means new. It has been frequently urged, but without success; and, in the very case of Edwards v. Slater, Baron Rainsford held the power to create the term to be a power simply colla- teral j but this Lord Chi^f Baron Haie and Baron Tur- ner clearly over-ruled, which makes the case as strong an authority as can possibly be wished for. The opinion under discussion owes its origin, perhaps, to powers in gross being frequently teimed powers col- lateral ; and the word " collateral" being considered as meaning simply/ collateral. Thus, in Saviie v. Blacket(?2), a power to a tenant for life to charge money on the estate was called by the Lord Chancellor a collateral power, and it is observed in a modein publication of much merit (o), ^' That the power in that case is erro- (n) 1 P. Wms. 777. {oj 1 Sanders on Uses, l64. neouslv 74 SUSPENSION, &C. Oy POWKHS neously called collateral, whereas, according OWERS. SECTION I. OF THE WORDS BY WHICH POWERS MAY BE CREATED. X o the valid creation of powers it is essential that there should be first sufficient words to denote the intention ; secondly^ an apt instrument ; and^ thirdly, a proper ob- ject. Of each of these I propose to treat in its order : and then^ lastly, to shew the effect of the creation of a power on the estates limited in the instrument creating it. First, then, no precise form of words is necessary. Powers we have seen are mere declarations of trust, and, therefore, any words, however informal, which clearly indicate an intention to give or reserve a power arc suf- ficient for the purpose {x)» The same rule prevails an to common law authorities created either by will (?/) or deed. Neither is it material in what part of the instru- ment the power is inserted (z ). So a recital or preamble jna deed may operate as a good reservation of apowcr (a) ; (.r) Anon. Mo. 60S ; Snapev. Tur- ton, 2 Ro. Abr. 262 (B) pi. S ; Bishop of Oxon v. Leighton, 2 Vern. 377 ; and see Fitzg. 222. (y) Earl of Stafford v. Buckley, 2 Ves. 170; Waraeford V.Thomp- son, 3 Ves. jun. 513. (») Rex V. Inhab. of Eatington, 4 Term Rep. 177. (a) Fitzgerald v. Fauconbcrge, Fitzg. 207. but OP THE WORDS BY WHICH POWERS^ &C. 03 but a recital in a deed of an invalid prospective power will not operate as a reservation of a new power, although if the error had been discovered the donee could havje created a new power (i). This can only be understood by an example : In Hele v. Bond a general power w as given to appoint and revoke toties quoties ; the donee ill a deed of appointment executed under this power re- cited the power fully, but neglected to reserve a new power of revocation, which he might have done ; and it was determined that the recital of the old power did not operate as the reservation of a new one. It was at first doubted whether a power deriving its effect from the statute of uses was well limited, unless there were words in the assurance that the feoffee and his heirs sliould stand seised to the uses to be created by force of the power (c). In old precedents such a clause was usually inserted. This practice has been long dis- continued, and it is clear;, that at this day it is wholly unnecessary. In old precedents of settlements it is not unusual i(\ meet with powers by v, hich the donees are authorized to limit and appoint the estates which they are enabled to create. In later times, the mind being carried to the effect of the act to be done, and not to the mode in which it was to be exercised ; it became usual to em- power the donee to " lease, sell, exchange," &c. and not to limit or appoint by way of lease, sale, or ex- change. In fact, both forms are accurate ; the ancient mode describes the operation of the act, the modern practice points out the ejfect of it : and, when it is con- {b) Hele v. Bond, infra Appendix, {c) Poph. 81. No. 3, MS. sidered 94 6t THE vroniis by which sidered that the power is equally well created, v/hethei' words denoting the operation;, or words des< rihin^ the effect, are used ; and that when the power is executed the interest created hy it is an actual lease, or exchange, &c. we shall probably think that it is wholly immaterial which form is used. The point, however, has been the subject of much learned controversy (rf). It will here be proper to consider what is apower,, and not an interest. It is said, that where an estate is given absolutely, without any prior limited interest, to such uses as a person shall appoint, it would be an estate in fee (e). But this doctrine refers only to a devise, for iti a con- veyance such a limitation would merely confer a power on the party, and not give him an estate in fee. Where there is an express estate for life ghen by will, with liberty to give the fee to particular persons, the devisee shall take for life, with a power to appoint the estate to the objects designated (y). But where an estate for life is not expressly given, but the estate is bequeathed generally to the devisee to such uses as he shall appoint at his will and pleasure; nevertheless, re-» straining the disposition to particular objects, it seems doubtful whether the devisee will take a fee simple con-* ditional, or an estate in fee upon trust, or an estate for life with a power to dispose of the inheritance. This is (d) See Butl. n. 1. toCo. Un.271 4/0 j and see Hales v. Marge- b; Powell's n. to Fearne's ex. dev. rum, 3 Ves. jun. 2:29 ; Cook v. p. 379 ; and Preston's Tracts, Duckenfield, 2 Atk. 565. p. 84. (/) Liefe v. Saltingstone, 1 Mod. (e) Whiskon v. Cleyton, 1 Leo. I89; 1 Freem. Mg, l6'6, 176 ; 1J6; Anon. 3 Leo. 71, pi 108; Cart. 232; Dighton v. Thorn- Baldwin ». Pole, Ch. Trinity T. linson, 1 Corny 194; 1 P. 8 Geo. Ill} and sec 3 Ves. jun. Wms. 149. the POWERS MAY BE CREATED. 95 the case of Daniel and Ubley, where the devise was, to *' Agnes my wife to dispose at her will and pleasure, and to give to such of my sons she thinks best." Ac- cording to Sir William Jones's report of this case {g}, he and Crew^ Chief Justice^ thought that the wife had an estate for life, with a power to appoint the reversion, and if not, that she had a fee simple conditional, and if she conveyed contrary to the condition, the heir at law might enter for the condition broken (h) : and Whitlock and Dodridge were of opinion that she had a fee simple upon trust. In Noy's reports (?) it is stated generally, that the wife had a power ; and in Latch's report (which is best) (k) ^'^'hitlock and Jones are stated to have held, that the wife had an estate for life, with power to appoint the reversion ; while Dodridge, who relied on the word dispose, was of opinion, that she had a fee simple conditional j and Crew, Chief Justice, agreed with him : but on a subsequent argument it seems that the Chief Justice came over to the opinion of Whitlock and Jones, and thought that the wife had only a power to appoint the reversion. In a modern case (I) the devise was of the testator's '^ lands, tenements, and hereditaments, to his wife, to be divided and disposed of amongst his youngest chil- dren;" and it was determined by Sir Joseph Jekyll, that the word disposed related to the estate of the devisor, for that the lands could not be disposed of, but the estate, and consequently the wife, had a fee. (g) 1 Jo. 137. (i) P. 80. {h) See 49 E. 3, 16, pi. 10 ; Anon, (i) P. 9, 39, I3i. Dall. 58, pi. 5 ; Doe v. Pearson, (/) Anon. 2 Kel. C. C. 6. ^East. 173, Th» 96 OF THE WORDS BY WHICH The better opinion, however, certainly is, that the devise is for life, with a power to appoint the inherit- ance, unless the words of the will clearly negative such a construction, and the authorities appear to be greatly in favour of that opinion. The most objectionable con- struction is, that the devisee takes a fee simple upon trust : for it must at this day be considered clear, that if the devisee be a married woman she cannot convey without a tine, as the law^ will not advert to the trust j and, in regard to its being an estate upon condition, we may observe, that what by the old law was deemed a devise upon condition would now perhaps, in almost every case, be construed a devise in fee upon trust {m), and by this construction, instead of the heir taking ad- vantage of the condition broiLeh, the cestui que trust can compel an observance of the trust by a suit in equity. But suppose an estate to be given to A expressly for life, with remainder to such persons, &c. generally as he shall appoint, will the devisee in that case take a fee ? In a case in the third volume of Leonard (n), the lands were devised " to the wife for life, and, after her de- cease, she to give the same to whom she will." It was determined that she took for life only, but with an authority to give the reversion to whom she pleased, for the express estate for life should not be enlarged by im- plication (o). In a case about ten years afterwards, reported in Leonard's first volume (p), the devise was to {in) See 4g E. 3, l6, pi. 10. (•) See Lord Parker's judgment in (w) Anon. 3 Leo. 71, pi. 108} 4 Tomlinson v. Dighton, 1 P. Leo. 41, pU 1 10. Wms. 171. (p) Jennor v. Haidie, 1 Leo. 283. the POWERS MAY BE CREATED. 9lf tlie testator's wife Edyth during lier widowhood^ remain- der to A in tail> and if A died without issue in the life of the wife, that then the land should remain to her to dispose thereof at her pleasure. A did die in her life time without issue, and it was determined, that the wife took a fee simple. The court relied much upon the words of the limitation of the remainder to the wife. Quod integra remancat dictte Edj/thce. In a modern case (q), the devise was, to the testator's heir at law for her life, and after her death to her lawful issue ; and if she should have no issue, then that she should have power to dispose thereof at her will and pleasure. She died without issue. The whole court was clearly of opinion that she had an estate in fee sim- ple hy the will, as the contingent remainder to the issue never vested : that the testator by giving her power to dispose thereof at her will and pleasure, in case she had no issue, had given her a fee simple : but supposing the words did not carry the fee simple, yet, as she was \\At at law, the fee descended to her upon the death of the testator, and, she having no issue, it \vas never out of her ; and the Judges, therefore, held a will made by her dur- ing her coverture to be void. Against this opinion, the before-mentioned case in 3 Leon, was cited, but the court said that that case was not law, and that the case in 1 Leon, was determined after that in 3 Leon. In a very late case (r), w here an estate for life only was given, with a power to dispose by mil in a contingent event, the case of Goodtitle and Otway was not referred to, (y) Goodtitle V. Otway, 2 Wils. 6. ton, 7 Ves. jun. Sgi, ace. ; and (r) Reid v. Shergold, 10 Ves. jnn. Randal v. Hearle, 1 Anstr. 124. Leonard must still be deemed a binding' authority. As a g-eneral rule, it must be admitted, that the law docs not incline to en- large express estates by implication. But the case of Goodtitle and Otway, as well as the case in 1 Leonard, may well stand without subverting the authority of the case in 3 Leonard. The case in 1 Leojiard seems to have been decided on the apparent intention of the tes- tator, that in case of the deatli of A without issue, in the life of the wife, she should take the whole domi* nion. The estate for life v, as given merely on account of the remainder, and the words applied rather to au actual estate than to a power. In Goodtitle and Otway also, the estate for life was created only to introduce the remainder. Besides, in regard to this case, it may be observed, that if (which the court seemed to doubt) the words did not carry the fee simple, then it was no ob- jection that the fee descended to the daughter, and was never out of her ; for the fee descended charged with the power, and under that construction she had a general power of appointment, with remainder to herself in fee; and, as her will was void unless it operated as an execu- tion of her power, it ought to have been deemed an exercise of it, according to the cases noticed in a subse^ quent part of this work. This case was certainly very distinguishable from that in i Leonard. The cases, however, may perhaps be thought to authorise the fol- lowing conclusions. 1st. That where there is an express estate for life given. POWERS MAY BE CREATED. 99 given, with remainder generally as the devisee shall ap- point,, without any intervening estate to strangers, the de-' visee shall take for life only, with a power of disposition over the inheritance. The rule is more inflexible where a specilic mode of exercising the power is pointed out. But, 2dlyi Where the estate for life is given in order to let in estates to strangers, and no specific mode is required to the disposition of the inheritance, there, in the event of the mesne estates not taking eflect, the devisee shall take the entire fee simple. These, however, cannot be treated as general rules applicable to every case. Wherever a poKer is clearly intended to be given, the devisee cannot be holden to take a fee. Had the devise, for instance, in Goodtitle v. Otway, in failure of issue, been " that the wife should have power to dispose thereof at her will and pleasure, notwithstanding her coverture," she would have taken a power merely, and not the fee simple; We are now to consider in what cases executors take a fee simple upon trust to sell, under a will, or are in- vested merely with a power of disposition. As far back as the reign of Henry the Sixth, it was laid down in a case in the year books, that if one devise that his execu- tors shall sell his lands, and die seised, his heir is in by descent, and, consequently, the executors have only a power ; but that if one devise his land to his executors^ there the freehold passes to them by the devise (y). The same distinction is again taken in the same book. It is (i) 9 H. 6. 24, b. 25 a. H 2 said. 100 or THE WORDS BY WHICH said, that if I devise that certain lands shall be sold bj my executors, althougli my heir is in bj descent, and his heir after him, yet the executors may enter upon the heir by descent, by reason of the will (0 This distinc- tion, namely, between a devise of knds to executors to sell, and a devise that executors shall sell the land, is mentioned by Justice Doderidge as a common differ- ence (?;), So Littleton {w) puts the case of a man devis- ing- that his executors may sell his estate, which he treats as a mere power passing- no interest : and therewith Sir Edward Coke in his comment agrees. But, he says, that if a man deviseth lands to his executors to be sold, there the estate passes. In a subsequent folio (a?) he takes precisely the same distinction, viz. between a de- vise that executors shall sell the land, and a devise of the land to his executors to be sold: and in the case of Houell and Barnes, where the testator ordered the land to be sold by his executors; Jones, Berkeley, and Croke resolved, that the executors had not any interest by this devise, but only an authority (?/). So in the modern case of Yates v. Compton (z), a devise that the executors should sell the land was treated as giving them a power only. Agahist this weight of authority there is merely an obiter dictum of Sir Matthew Hale's when Chief Baron, that it had been held, that if a man de- vises that his lands shall be sold by his executors for payment of his debts, that will give the executors an ijiterest as well as if he had devised his lands to his ex- ecutors to be sold {a). But he did not refer to the case (0 y H. 6, 13 b. (y) Cro. Car. 382. {u) Latch 43. {%) 1 P. Wms, 308- (w) S. 169. (a) Harrington v, th« Attorney- (.rj 181 b. General, Hard. 419. in POWERS MAY BE CREATED. 101 ill which this point was decided. The case, however, was not only in opposition to former opinioni=i, but has been completely over-ruled by the later cases of iIoue!l and Barnes, and Yates and Compton. Thus far the distinction is intelligible and reasonable. A devise of the land to executors to sell, passes the in- terest in it, but a devise that executors shall sell the land, or that lands shall be sold by the executors, gives them but a power. Littleton, in his 383 section, gives an exact copy of a case from the book of the assizes (b) ; where it is stated, that the ancestor of the Plaintiff devised his lands to be sold by the defendant who was his executor, and, as he had not sold, it was held that the heir should recover by reason of the breach of the condition. Upon this ca^e Coke observes, that it appeareth that when a man deviseth his tenements to be sold by his executors, it is all one as if he had devised his tenements to his execu- tors to be sold, and the reason is, because he deviseth the tenements, whereby he breaks the descent. Mr. Hargrave, addressing himself to the case of a devise, that executors shall sell the lands, observes (c), that as to the power's not surviving for want of an in- terest. Lord Coke concedes that if one devises lands to be sold bij his executors, an interest will pass. Now such a devise so resembles devising that executors shall sell the land, as to give the distinction made between them the appearance of too curious and overstrained a refine- ment, such as rather consists in the formal arrangement of words than of any thing substantial : and he refers to the above-mentioned case cited by Lord Hale, as a judg- ed) 38 E. 3 p].'3. ^r^ Note (2) Co. Li't. 1 U^ a. ' H ;.i ment 102 OF THE WORDS BY WHICH ment against tliis distinction. But he admits that the cases of Hoiiell and Barnes, and Yates and Conipton, are the other way. This learned writer, however, is for construing; a devise that executors shall sell the land, as well as a devise of lands to be sold by executors, as investing them with the fee simple, and not merely a power. But from the cases which have been stated, it should seem, that a devise that the executors shall sell the land, or that la?id shall be sold hij the executors, will i^'ive them simply an authority. The only question then is, whether a devise of the land to he sold by his executors, will operate as a devise of the estate to the executors. But according to the observation on the other side of the question, a distinction of this nature would be too curious and refined; and, therefore, assuming the first point to be clear, it would seem to follow, that these words would confer a power only on the executors ; and this appears clear also upon the authorities. In the case cited by Littleton it was taken for granted that the estate passed to the executors; and the reporter appears to have thought it necessary to state only the effect, arid not the words of the devise : and Coke cites no other autho- rity for his opinion. Lord Nottingham, in his note to this passage in Littleton (c), states the statute of 21 Hen. VIII. which applied only to cases where lands are willed to he sold hij executors, and it was considered, in strictness, as embracing powers only : and he cites the 49 Ed. III. 17. " The case was : A woman seised of lands in London devised them to he sold hy her executors, ^d died without heir ; that devise prevented the escheat (c) 236 a. l^hich POWERS MAY BE CREATED. 103 which the king piclended to have, and the executors could enter and sell ; therefore more than a bare autho- rity passed. Yet in IG51, on evidence at (he bar bet>Yeen "Wilkinson and White, tliis case w^as started, and Lord Chief Justice Rolls doubted of this opinion, because, he said, it was only a descent according- to the Avords of Littleton, and that it appeared to him, that where lands are devised to be sold hij execuiors, thcie. no iiilcrv :st passes, as in the last clause here." In the case cited by Lord Nr.ttingham from the year books, it appears, that no judgment was given; and, indeed, it is quite clear, that at this day the devise in that case would be held to give a power only. The de- vise was (after an estate tail), of the lands to be sold by the executors, or the executors of the executors, i^ all the executors should die, and four parishioners of the parish in which the land lay. Upou the whole, therefore, as well by reason of the i^nalpgy of this case to that of a devise that the execu- tors shall sell the land, or that the land shall be sold by the executors, as upon the authorities, there seems great reason to contend, that even a devise of land to he sold hij his executors, without words giving the estate to them, must be deemed to invest them with a power only, and not to give th.em an intevest. Technical words are so essential to the creation of estates bv deed, and their iijiport is so g nerally under- stood, that a question rarely arises upon a deed, whe- ther a party take an actual estate or only a power. Li the case of Keene v. Deardon {d), it appeared, that estates were conveyed to the use of trustees^ and {d) 8 East. 248. n 4 their 104 OF THE WORDS BY WHICH their heirs in trust, with the consent of the parties inte-t restedj to sell the inheritance in fee, and apply the money upon trusts ; but it was provided, that until the inherit- ance should be sold, the rents should be received by the persons who would have been entitled thereto if the deed had not been executed. It was determined, that the trustees took the legal foe, but the counsel entered into an argument of some length, to shew that they took a poucer only — a doctrine utterly subversive of all received notions on this branch of the law of real property. The proviso as to the receipt of the rents and profits is similar to that inserted in mortgages, that the mortgagor shall receive the rents until default is made in payment of the mortgage monej' ; which clearly, at most, makes him but tenant at will. The proviso, in truth, operates as a declaration of trust, and every cestui que trust in possession, is as tenant at will to his trustee. But even if such a proviso were, in defiance of all principle, ad- mitted to have any legal operation, yet upon what ground could it be argued, that this proviso would con- vert theprior legal estate of inheritance, created withpro- per technical words, into a mere power. It were surely more consistent to say, that the persons named in the proviso would have a power of entry till sale, or default in payment, &c. However, it is quite clear that provisos like these have no other than an equitable operation. In the case of Keene and Deardon, the estate appears to have been liniited to the trustees in fee, under a power operating by force of the statute of uses, and, if so, it escaped observation, that the trustees of necessity took the legal estate, and that any subsequent declaration or power could only take effect in equity fJ^. (d) Fide infra. » By POWERS MAY BE CREATED. 105 Bv our law one man may create an unalienable per- gonal trust in favour of another, for his support and maintenance. This species of trust is generally created in favour of married women; the object being to pro- vide them with a separate maintenance, which neither they nor their husbands can alien. But where a mar- ried woman has property settled to her separate use, without any restraint on alienation, she is in equity deemed a feme sole, and may dispose of it accord- ingly (e). It may not, perhaps, be wholly irrelevant to our sub- ject, to touch slightly on the distinctions between what is an unalienable personal trust, and what ish a power of disposition. And first, a gift simply to the separate use of a feme covert is tantamount to a gift to such uses as she shall appoint by deed or w ill (/) j although Lord Rosslyn (e) Bell V. Hyde, Prec. Cha. 328 ; 8, 1 Ves. Jun. 46 j Rich v. Coc- Grigbyu. Cox, 1 Ves. 517 ; Da- kell, pVes, Jun. 319; WagstafF vison -v. Gardner, Treat. Purch, v. Smith, ib. 520 ; Burnaby v. p. 393; Hulme V. Tenant, I Griffin (l), 3 Ves. Jun. 266; and Bro. C.C. 16. see 8 Ves. Jun. 176; 11 Ves. (/) Peacock v. Monk, 2 Ves. 190 ; Jun. 222. Fettiplace v. Gorges, 3 Bro. C.C, (1) The question in this case arose upon the vaUdity of an equitable recovery, where the tenant to the precipe was made by the married wo- man. Lord Rosslyn held it good, and expressed his marked disapproba- tion of the objections taken to the title. 'His decision, however, in Mores V. Huish, although universally considered by the profession as an unsound judgment, has not been since expressly over-ruled j and there- fore no title is at present considered as marketable upon which this ob- jection occurs. ~ in lOG OF THE WORDS BY WIHeil in one case (,:(;•) considered, that an absolute power fo appoint was essential where the trust was to pay from time to time. This, however, proceeded from the particular circumstances of the case, and his disincli- nation to support alienations bj married women of their separate property : his decisions, latterly, on this point, were in direct opposition to the doctrine laid down by Lord Hardwicke and Lord Thurlow, and have been since frequently shaken by Lord Eldon (/?). The mere circumstance of the interest being directed to be paid from time to time, will not prevent the wife making a sweeping appointment at once(i). Where it is intended that the wife shall not dispose of the inte- rest, it is now usual to hisert an express clause, that she shall not sell, mortgage, charge, or otherwise dis- pose of the same in the way of anticipation. But althdugh these words, or words of the like na- ture, are omitted, yet if the instrument point to a per- sonal enjoyment, the fund cannot be alienated ; as where in a deed of separation, a trust was created to permit a person to receive the dividends of stock, for the maintenance and support of the wife, it was deter- {g) Mores v. Huish, 5 Ves. .Tun, 692. See Newman v. Whistler, 4Ves. Jun. 129. (A) Sperling v. Rochfort, 8 Ves. Jun. l64j Parkes 1-. White, 11 Ves. Jun. 209. (i) Clarke v. Pistor, 3 Bro. C. C. 346 n ; Ellis V. Atkinson, 3 Bro. C. C. .56.5, '2 Dick. 759 ; Pybus •y.Smith, SBro.C.C. 340, iVes. Jun. 189 J Witts 1'. Dawkins, 12 Ves. Jun. 501 ; and see Sperling 1'. rvochfort, S Ves. Jun. l64 ; Parkes v. White, 11 Ves. Jun. 209. Note, Sockett v. Wray,4 Bro. C. C. 483^ depended on Lord Alvanley's opinion, that the power in that case could only be exercised ly will; but see Sperling v. Rouhfort, uli sup. mined POWERS MAY BE CREATED. 107 mined that she had no dominion over itj but that it was subject to the special trust for her main- tenance and support, although the trustee covenanted to indemnify the husband against the wife's debts (k). So in Hovey v^ Blakeman(/), whore the trust was to pay the rents and interests in equal divisions into the respective proper hands of the testator's two sisters, as long as they should live, the same to be to their sepa- rate use ; the Master of the Rolls thought, that an absolute property was not intended to be given to them, so as to give a power of disposition ; that it was a per- sonal bequest to them to be paid into their proper hands, and without a power of disposition ; and he dismissed the petition of an annuitant, under a grant from one of them, leaving him to file a bill, but intimating an opi- nion against it. But as we have seen a simple gift to the separate use of a feme covert, gives her the abso- lute disposition of it. And in the late case (m) of AVag- staff V. Smith, where the trust was to permit the wife to take or receive the dividends to her own use, durino;" her life, independently of her husband ; the Master of the Rolls held, that as to this property she was to be deemed a feme sole. There were, he observed, no words of controul, no words of restriction. The trus- tees were not even to pay from time to time into her hands upon her receipt, but she was to receive. Here were the very words to give the absolute property. If land had been given to trustees in these terms, it would {k) Hyde v. Pi ice, 3 Ves. Jijn. (m) Wagstaff v. Smith, 9 Ves. 437. Jun. 520. (/) 9 Ves. Jvin. 524, cited. have 108 OF THE WORDS BY WHICH have been an use executed, and the party would have the legal estate (71). The distinctions taken in the cases on this head appear extremely refined and subtle, and it is almost impossi- ble for a practitioner to advise confidently on any case where the very words have not received a judicial de- termination. It is probable, however, that had the case of Hovey and Blakeman come on again, it would have been decided that the wife had a power of disposition. There is no inconvenience in this doctrine, as express words of restriction are nov/ universally used, where it is in- tended that the wife shall not have the absolute domi- nion. Where these words are omitted, it were perhaps better to hold that the vv'ife may alien the property {u). In some cases, where a married woman having an absolute power of appointment over a fund has exe- cuted it, a bill has been filed, in order that the wife might consent in court to her disposition; and this practice occasioned a doubt, whetiier it was not neces- sary that the wife's consent in court should be taken (p). •But unquestionably the appointment is valid without any consent, and so it is considered in practice : ap- pointments are daily made to purchasers, unattended by any other solemnities than those required by the power. It remains to observe, that no particular solemnities are by lav/ required to the execution of powers. It («) And see Jones -y. Harris, 9 Vcs. Jun. 4S6; Parkes i;.Wbite. 11 Ves, Jun. 209. (0) See Ijord Alvanley's judgment in Hesse v. Stevenson, 3 Bos. & Pull. (/)) Sees Ves. Jun. 181, 182. rrsis POWERS MAY BE CREATED. 109 rests in the breast of the person creating a power, to impose such ceremonies as he thinks proper. A power may be reserved to be executed bj a simple note in writing (q), or by u//Z unattested, or attested by only one or two witnesses, and this although the subject over which it rides, is real estate. This point has been considered as decided by Lord Chancellor Jefterys, ia the case of Dey and Thwaites, which was after- wards approved of by Mr. Baron Powell (r). Lord Hardwicke appears clearly to have entertained the same opinion (s). In Goodill r. Brigham(0. however, Mr. Justice Buller seems to have taken it for granted, that iuch a power could not be reserved ; but this was a mere ohittr dictum. Lord Hardwicke's opinion is full and clear, that the statute of frauds is entirely out of the question, except so far as it is the rule which the donee is directed to follow in the execution of the power. The will, he said, operates hy appointment, though the party may arbitrarily insert the rules pre- scribed by the statute (w). A distinction has, indeed, been taken by a late writer, between a will nominatim, and a writing purporting to he a will. Without referring to any authority, the first is treated as doubtful ; but in the last case it is said to be well established, that it may be reserved to be executed without the formalities imposed by the statute of frauds (x\ It is apprehended that no au- thority can be adduced in suppoj^t of this distinction. To shew that it is unfounded, it may be sufficient to (q) Vide infra, ch. 5- sect, 2. (/) 1 Bos. and Pull. 19S. (r) See 3 Ciia. C^. 69. however, that in both cases the reservation is valid. But of course a man cannot reserve isuch a power to himself hy\\h o\\\\Ti:lll{z), as that would be simply an evasion of the statute of frauds. [y) Longford i). Eyre, 1 P. Wms. {%) Habergham v. Vincent, 2 Vea* 740. Jun. 204. SECT. C IH ] SECTION 11. OF THE INSTRUMENTS BY WHICH POWERS MAY BE CREATED, A. POWER of* appointment or revocation may be re- served either in the body of the deed^ or by indorse- menij, before the execution of it (^a), or by a deed of even date with the settlement ; and there need not be any counterpart of the deed (5). And although the power be interlined^ yet it will be good, in the absence of evidence to shew, that the interlineation was made after the execution. We are never to lose sight of the origin of powers. And here we must recur to the distinction taken in a previous page, between conveyances operating by trans- mutation of possession and conveyances which have not that operation. For as to the latter, one of those assurances, namely, a bargain and sale, can only be sustained by a valuable consideration, and a power in such a conveyance to lease to any man, although for a valuable consideration to be paid or rendered, is too general, and therefore void. Equity, before the statute of uses, would not sanction so indefinite an executory agreement; and therefore the statute could never attach on the estates attempted to be created under such a contract. To (a) Griffin v. Stanhope, Cro. Jac. {b) Fitz v. Smalbrook, 1 Keb. 134 ; 456. See Outon v. Weeks, 2 and see 3 Cha. Ca. 83, 11 9. Keb. 8O9. the 112 OF THE INSTRUMENTS BY WHICH the validity of the other of those assurances, viz. a co- venant to stand seised, a good consideration is essential, and a proviso to lease to any one, is for the same reason also void ; nor is it any argument in favour of a lease under such a pover, that it is granted to some person within the consideration of blood (c) ; because by rea- son of its generality^, the power was void at the time the deed was executed. But it seems clear that a power may be reserved in 2t bargain and sale, to grant a lease to a person from or on behalf of whom a valuable consideration moved at the execution of the dcedfc?). So a power may be reserved in a covenant to stand seised, to grant a lease to a person named in the deed, and within the considera- tion of blood or marriage, although such a lease can- not be granted where a general power is reserved to lease to any man (e). Mr. Cruise has observed in his valuable Digest, tha£ the usual powers of leasing given in modern settlements may be valid, though inserted in a bargain and sale, or covenant to stand seised, as it is always required that the best and most improved rent should be reserved, and a lessee is a purchaser for a valuable considera- (c) Mildmay's case, 1 Rep. l/j. Mo. 144, S.C cited Goulds. 173, pi. 106. nom. Sharrington's case ; and see Mo. 373; Cross v. Fans- tenditch, Cro. Jac. ISO. S. C. 2 Ro. Abr. 2t)Q. (A) pi. 1 5 Dorothy Chute's case, I Lev. 30, S, C. 1 Keb.34,nom. Lady Dacre t. Ha- zel ; Prince provided they paid a consideration when born. Besides, powers could not, under any construction, be reserved on a bargain and sale to any but the bargainor, as the consideration must be paid to him^ in order to raise the use. It is clear, however, that a general power of revo- cation may be reserved either on a bargain and sale, (/) 4 Cruise's Dig. 322. (g) Gilb. Uses, 46. I or 114 OF THE INSTRUMENTS BY WHICH or a coTciiaut to stand seised (h); and in Goodtitle v. Pettoe (i), Lord Chief Justice Raymond expressed an opinion^ that a power might be given in a covenant to stand scisedj to appoint the use in favour of any of the covenantor's relations, iti consideration to continue th^ estate in the family of the covenantor ; and that it might be averred after the appointment^, that he to whom the use was appointed was of the blood of the covenantor. As a general power of appointment is tantamount only to an estate in fee, it might perhaps originally have been holden with perfect consistency, that upon a bargain and sale, or covenant to stand seised, such a power might be given to any one to whom a fee might be limited. But in Goodtitle v. Pettoe^, it was solemnly decided, that such a general power in a covenant to stand seised, was void in its creation, although an estate in fee might have been given by the deed creating it, to the donee of the power (/<■) ; and that an appointment could not be made even to one of the covenantor's blood, according io the rule in Mildmay's case (Z). And in the prior case of Warwick v. Garrard (t??), it was determined, first at law and afterwards in equity, that such a power re- served even to the covenantor himself, w as void ( I ) . Thus (i) Co. Litt. 237 a i Shep. Touch, {k) Goodtitle v. Pettoe, Fitzg. 299 ; 524, 525. 2 Barn. 10, pO, 142 ; 2 Str. 934. (0 Filzg. 299. (/) Vide supra. {m) 2 Vern. 7. (1) The reporter ends this case with a qucere tamen. The grounds of the decision do not appear upon the register's book j but the mere point POWERS MAY BE CREATE!). 115 Thus miicli for convevaiiccs not operating by trans- mutation of possession. Po-ivers may of course be li- mited ill every conveyance which operates by transmu- tation of possession. The estates created by force of them, arise out of the seisin of the releasees, feoffees, conusees, or recoverors. Now we have seen that be- fore the statute of uses, the legal estate remained vested in the releasees, &c. who were bound in equity to exe- cute the estates created, although they were not sup- ported by a valid consideration. By this rule, there- fore, a person taking under the execution of a power, raised by a conveyance operating by transmutation of possession, acquires an equitable estate, or an use; and by force of the statute, the legal estate itself is instan- taneously transferred to him, without reference to any consideration. We have seen that a power of revocation could not be reserved on a lease at common law. It has been said, that if a feoffment, or lease and release, be made to J. S. and his heirs, to the use of J. S. and his heirs, with a power of revocation reserved thereupon, such a power is void ; because J. S. is in by the common law. And upon the same ground, the same writer doubts, whether upon a conveyance to a purchaser and his heirs, to sucli uses as he sliall appoint ; and in default of, and subject to sucb appointment, to the use of the pur- chaser and his heirs, such a power can be exercised, for. point must have been tried at law, as the necessary directions were given by the decree for that purpose. Reg, Lib. 1685, B.fol. 840, War- wick V. Garrard. > 1 2 subject 116 OF THE I?;STRUMEKT9 BY WHICII subject to til c power, the jiurcluiscr is in by the common lau;, and tlie reservation of the power before the limi- tation to the purchaser, cannot make any difference (n). The authority for this point is an observation by Sir Edward Coke, in tlie few remarks he has made on uses, that in case of a feoflVnent, or other conveyance, where- by the feoflce or grantee, &c. is in by the common law, such a proviso were merely repugnant and void(o). And a passage in Siiepherd's Touchstone (p), where the author referring to Co. Litt. says, ^' But in case of a feoffment, or other conveyance, whereby the feoffee of grantee is in by the common law, as where A doth in- feoff B and his heirs to the use of B and his heirs, it is said such a proviso is merely repugnant and void.'* It should seem, however, that Coke had not any such case in contemplation. He appears to have alluded to a feoffment at common law, to the feoffee at once, and not bi/ xcai/ of use. To consider this point accurately, we should enquire, Istj Whether the releasee is in by the common law; and, 2dly, Whether, independently of that objection, the power is merged in the fee. The last objection has been thoroughly discussed in the preceding chapter; and as to the first, although the statute requires that one person should be seised to the use of ano- ther, yet there are several cases in which it vests the use in the very person in whom the seisin is vested : intention, in this respect, appears always to have been attended to. Thus, nine years after the statute of uses, it was holden, that if a man make a feoflinent in fee to («) 1 Sanders on Uses, p. 157, and (o) Co. Litt. 237 »• note il. (p) P. 525. the POWERS MAY BE CRE'ATED. 117 the use of himself for life, and that after his decease J. N. shall take the profits/' that shall create an use ill J. N. ; otherwise^, if it had heeii said, that "^ after his death the feoffees should receive the profits, and pay them over io J. N." because J. N. would not re- ceive them but through the hands of the feoffees {q). So in a case in Moore, in 5 Elizabeth, it was laid down as clear, that if a feolTment was made to J. S. to the use of him, aiid that he should be ?eised to the use of R. H. that was void as to R. li. because that the use and possession was befoie in J. S. (r) And in Sammes's case, this construction was adopted, and the reason of it was stated to be, that the statute of uses had been always beneficially expounded to satisfy the intention of the parties {s). It seems also very lately to have been thought, that even where the estate is not limited unto and to the use of the releasees, yti if none of the limita- tions of the settlement could possibly take effect, without giving the legal estate to the trustees, the seitleraent must be so construed ; and this, it is said, was done in a case in the House of Lords [t). From these observa- tions, it seems to follow, that in the case under consi- Ideration, in order to preserve the power, and to effec- tuate the intention of the parties, the' releasee would be deemed to be in. under the statute of uses. And they also shew that there is no weight in an objection that is sometimes made, viz. that where it is iiitended a pur- chaser shall only take a trust estate, the release ought iq) 36 H. 8; Bro. FefFements al (?•) Mo. 45, pi. 138. Uses,3'I0, pi. 52; andseeSym- {s) 13 Rep. 56. son w. Turner, 1 Eq. Ca. Ahx. {t) See Doe -y. Martin, 4 Term S83 n. Rep. 39. I 3 to * 118 OF TIIF. INSTRUMENTS BY WHICH to be to A to the use of B, in trust for C the pur- chaser (z/), on the ground that a Jhnitation unto and to the use of A^, in trust for B the purchaser, would give B the legal estate, as A would be in at the common law, and the statute would operate on the trust limit- ed to B. Every day's practice, however, evinces the opinion of the profession on this point. In number- less convevances, estates have been limited unto and to the use of the releasees, in order to vest the legal estate in them. This point, indeed, is so clear, that in Doe v. Martin (iv), w here it was insisted that the legal estate was vested in the releasees of asettle- ment. Lord Kenjon said, that in answer to that, it was sufficient to observe, that it was limited to the trus- tees, without saying " to and to the use of the trus- tees," Indeed, it is apprehended that no one would in practice venture to contend that any limitation could be executed by the statute, after a limitation unto and to the use of the releasee iu fee. Even if the Objection were well founded, yet it would not be necessary to convey to A, to the use of B, in trust for C ; but the estate might be conveyed to C, (the intended cestui que trust), as the releasee, to the yse of B the trustee, in trust for C himself. In the opening of the work it was observed, that a pow er given by a will was a common law authority. But here we must consider whether a devise to uses through the medium of a devisee, as a devise to A and his heirs, to the use of B and his heirs, will not take (w) Walk. Prin. Codv. 72 n. (w) 4 Term Rep. 3g, effect POWERS MAY B£ CREATED. 119 eflfect under the statute of uses. Upon this point a difference of opinion has been expressed (r) ; and, in- deed, the subject is exhausted by the learning which has been displayed upon it ( 1). It must be admitted to be quite clear, that an immediate devise to A for life, remainder to B in fee, would be good, although no seisin was raised to serve those estates ; or, in other words, lauds may be devised without the aid of the sta- tute of uses, and it is not material that the limitations are termed uses. On the otlier hand, it seems equally clear, that where a seisin is raised by will to feed uses created by it, such uses will be executed into estates by the statute of uses. {x) Biitl. n. to Co. Litt. 271, b. III. s..5 5 Powell on Devises, 272; and see 1 Sand, on Uses, I95 ; and Fonbl. n. (e) to 2 Treat. Eq. p. 2>4, 2d edit. / (1) Mr- Boothj it is said, wrote the following postscript to an opi- nion : *' Powers under wills are not like powers under conveyances, ope- rating by way of use. The execution of a power under a devise is not the limitation of a use ; no, not where the devise is to uses : as where there is a devise to J. S. and his heirs, to the use of A for life, remain- der to B intail, with power for A to limit a jointure, or lease, or charge, there will be no seisin in J. S. consequently no such use in A or B, as i$ executed by the statute of uses; consequently the execution of the power is no use ; it operates as a devise under the statute of wills." But in another opinion of Mr. Booth's, the authenticity of which is equally well known, he says, speaking of a power of exchange, under a will to a t-enant for life, that " when he (the tenant for life) executes his power of exchanging, he is the declarer of the use, and a fee passes out of the estate of the persons who are the devisees to the uses in the will : for it has been resolved, that a devise to an use may be as well as a feoffment to an use; and the uses under such devises will have the same operation as uses under feoffments." 1 4 In 120 OF THE INSTRUMENTS BY WHICH In support of the contrary opinion, it is insisted that the statute of uses cannot refer to the statute of "^villsj, "which was not then in contemplation. It is said to he, difficult to conceive how uses created under the testa- mentary power given by the statute of wills, can be , within the statute of uses ; and that it may be argued that a statute can never be considered as relating to any thing which did not exist at the time of its passing. But this is well answered by my Lord Chief Justice Coke, who in Vernon's case (^), addressing himself to the precise objection, said, it is frequent in our books, that an act made of late time should be taken withia the equity of an act made longtime before, of which he gives many instances (z). In the principal case^ that part of the statute of uses which relates to jointures, was holden to be within the equity of the statute of wills. It appears to have been thought in Andrewes's case in 18 Eliz. («), that the statute of uses would operate on uses created by will ; and in Popham and Bampfield, 34 Car. 11. (^), and Burchett and Durdant, 2 W. and M.fc), the same point was admitted both at the bar and by the court. In the case of Hore and Dix, 12 Car. II. (dj, it was resolved, that an use could not be raisedd without a deed. And as to the case of a devise of laud to uses by a will in writing, vvhich is not a deed, it was said, that that went upon another reason, scil. rather upon the statute of 32 H. VIII. of wills, than upon "i*the statute of 27 K.VIII. of uses. This case has been treated as an authority, that the use is executed iy)4Rcp. 1. (z) And see Williams v. Drewe j Willes, 392 ; Lane v. Cotton, 1 Com. 100. (a) Mo. 107. (i) 1 Vern. 79. (c) 2Ventr.311. (1^) 1 Sid. 26, 4th resol. ty t»OWBRS MAY BE CREATED. 121 by the statute of wills, and not by the statute of uses •, but, on the contrary, it appears to admit that the statutes may have a concurrent operation. It was in like man- ner admitted in Broughton and Langlcy, 2 Ann(/), that a devise of lands may be by express words to the use of another than the devisee, and that such devise will be executed by the statute of uses. It should seem> therefore, upon principle as well as authority, that the statute of uses may operate on uses created by will : and that where a seilfo is created to serve the uses, the statute will in most cases transfer the possession to them. It is not denied, that a devise unto and to the use of one, will vest the legal estate in him, although ulterior uses ^re declared in favour of others j but this, perhaps, it may be said, is not by the operation of the statute of uses, but that it depends on an irresistible inference of the testator's intention, in analogy to the resolutions on limitations to useg in deeds. It has been observed, that whether a devise to uses operates solely by the statute of wills, or by that sta- tute jointly with the statute of uses is, except in a very few cases, a matter rather of speculation than of use . ^s it is now settled that an immediate devise to uses without a seisin to serve those uses is good ; and that where the estate is devised to one for the benefit of ano- ther, the courts execute the use in the first or second de- visee, as appears to suit best with the intention of the testator. It is, however, indispensably necessary, that this point should be settled. Suppose an estate to be devised to A and his heirs, to the use of B and his heirs, and A die in the testator's life time, is the devise void ? (/) 2 Lord Raym. 873, 2 Salk. 679. The 122 OF THE INSTRUMENTS BV WHICH ^ The solution of this question depends upon the previous one, viz. whether tlie devise do, or do not, operate un- der the statute of uses. If it do not, acd the use should be considered as vested in B u: der the statute of wills, then the death of A would not defeat the devise. If it do operate under the statute of uses, then, in fact, the entire estate is given to A, and as the devise lapses by his death, there would be no seisin to serve the use limited to B, when it ought to arise by the death of the testator, and consequently it may be contended that the devise would be void. But although it seems clear that the statute in this case refers to the statute of wills^ yet as every testator has a power either to raise uses by the joint operation of the statute of uses and the statute of wills, or by force of the statute of wills only, perhaps the courts would, in favour of the intention, construe the devise as a devise not affected by the statute of uses, but as giving the fee to B at once (^). This cannot, how- ever, be considered a clear point. But even admitting that the devise is void at law, yet equity would compel the testator's heir at law to fulfil the intention, by con- veying the estate to the same uses. Nor is this the only case in which it is of real import- ance that this point should be understood. Till we ascertain whether or not a power in a will is a common law authority, or a power deriving its eft'ect from the statute of uses, we cannot discover in whom, by virtue of an appointment under such power, the legal estate is vested. This will be explained in a subsequent chap- ter (A). To prevent these questions arising, estates (g) See and consider Dobbins v. Bowman, 3 Atk. 408 ; and Cross v. Hudson, 3 Bro. C, C. 30. (A) Chapter 5. post. should ' POWERS MAY BE CREATED. 123 should be devised to the devisees at once, and not through the medium of a devisee to uses. Where the limitations in a will are numerous, a seisin to serve tliem is frequently created for the sake of brevity^ as it saves the repetition of vrords of gift preceding every limitation ; but the same purpose will be effectually an- swered by devising the estate '' \o the uses after ex- pressed/' without naming any devisee to the uses, and then going on in the usual way with the limitations. If it should be thought necessary, in any case, to raise a seisin to serve the uses, in order to attract the statute of uses, several devisees to the uses should be named, so that, in case of the death of any of them in the life time of the testator, the estate might survive to the others, which it would certainly do if the estate was given to them, as it of course ought to be, as joint tenants. Before we close this head of our enquiry it should be observed, that a seisin must be raised commensurate with the estates authorized to be created under the power. If a life estate, for example, were conveyed to A to such uses as B should appoint, and B were to appoint to C in fee, this disposition could not take effect beyond the interest conveyed to A. And where it is intended that the estates to be created by the execution of the power shall be invested with the legal estate by force of the statute of uses, the land should be conveyed to the releasee, &c. to the uses intended to be appointed, and not to the releasee to the use of himself to the uses, as, in that case, any estate created under the power would be an use upon an use, and consequently would be void at law, altliough it would be supported as a trust ia equity. 124 or THE INSTRUMENTS BY WHICH equity. Where the legal estate is vested in any person independently of the deed declaring the uses, as in the case of the recovcror in a recovery, or the conusee in a fine, it should for the same reason he declared, that the recoveror or conusee shall stand seised to the uses, and not that the recovery or fine shall enure to the use of them, to the uses. This^ which is a clear point, was so laid down by Lord Hardwicke in the case of Lloyd v. Abrahall (i), where a fine was levied to tv/o trustees ; and it was declared, that it should enure to the use of them their heirs and assigns, to the uses ; and Lord Hardwicke decided the case (which was argued by the most eminent counsel of the day) wholly on the ground that the legal estate was in the trustees. The case arose upon a devise /o?' -want of issue of the testatrix's bochj, to whom no estate was limited ; and Lord Hardwicke supported the de\ise, which was otherwise void as too remote, because it was of trust estates ; and he was of opinion, that if there had been issue living, who had brought a bill for a conveyance, the court would have decreed a strict settlement in order to effectuate the devises over. The estate is to this day enjoyed under this decision; but unless in a case where the trusts are executory, and not executed, such a decision would not now be made. A mere devise not pointing to a future settlement, must receive the same construction, whether the testator be seised of the legal, or only of the equit- able estate J or whether he devise legal or equitable estates to the devisees intended to take beneficially. Sometimes in a power to appoint a life estate it is ne- (i) T. Term I7 and 28 Geo. II. MS. ; and see Phelp v. Uay, MS.; and in Append!.^. cessary POWERS MAV BE CREATED. 125 c^ssarj to authorize a limitation to trustees, to preserve contingent remainders in the instrument creating the power, of which the life estate is to take precedence. This should always be attended to. Where an estate is limited to trustees and their heirs generally, to preserve contingent remainders, and a general power of appoint- ment is afterwards given, they will take the fee, because, under the power, contingent remainders might be created which would be liable to be defeated if the fee were not vested in the trustees. This question of course arises only in those cases where the court ccm, in favour of the intention, hold the trustees not to take the fee, although the estate is limited generally to them and their heirs, and is not confined to the life of the person taking the precedent estate of freehold (k). (i) See Venables v. Morris, 7 Term Rep, 342, 438 ; Doe v. Hick«^ ib. 433 ; Baker v. Anscombe, 1 New Rep. 25 ; Curtis v. Price, 12 Ves. jun. 89. SECT. C 126 i SECTIOx\ ITT. OF THE OBJECTS FOR WHICH A POWER MAY BE CREATED* W E come now to consider the validity of a power witli reference to its object. And, first, a power may be reserved to rcvolce the whole settlement, or even any particular limitation in the settlement, leaving the other limitations unafi'ectcd (/). Where, however, a man has an estate to which powers are annexed, and it is intended to leave his estate undis- turbedj but to reserve a power to revoke the powers given to him and all the subsequent estates, it should not simply be declared that all the limitations, &c. sub- sequent to his estate may be revoked, but it should be expressly provided that his powers may be revoked. For in a case where under a settlement A was made tenant for life, with powers of leasing, &c. and the settlement directed, that unless' he settled another estate to the same uses, all the uses, &:c. subsequent to his estate for life should cease ; and he neglected to make the settlement ; it was determined, that the estates created by A, under his powers, were not defeated, as there was no express declaration to that effect, so that the court considered the powers as benefits annexed to the estate for life, which were not intended to be defeated (w). (I) Thomson «u. Freston, 2 Ro. (m) Freke v. Lord Barrington, 3 Abr. 262, (B) pi. 1 ; Anon, l Bro. C. C. 2;4. Str. £84. So OF THE OBJECTS FOR WHICH^ &C. 127 So a power may be reserved to raise concurrent in- terests for different purposes, as powers to a tenant for life to grant a jointure to his wife^ and to create a term, to commence from his death, for securing younger chil- dren's portions, in which case, during the continuance of the jointure, the term will not take effect in point of interest, but shall go on in time, and the residue of the term that remains unexpired after the death of the jointress, shall take effect in interest and no moreQi). Where the object of a power is to create a perpetuity, it will be considered simply void. This was decided in the great case of Spencer and the Duke of Marlbo- rough (o), where, in a strict intail, under a will, a power was inserted authorizing trustees on the birth of each unborn tenant in tail, to revoke the uses limited to them, and to limit the estates to them for their lives, with remainder to their sons in tail. Lord Chancellor Northington held this power to be void, as tending to a perpetuity, and repugnant to the estate limited. And this decree was confirmed in the House of Lords, upon the unanimous opinion of the Judges, that such a power, whether in a deed or will, was void. But a general power to appoint to children, grand- children, or issue, without expressing the time within which they must be born is good, as the donee mai/ ap- point to such issue as are within the line of perpe- tuity (p). (n) Edwards v. Slater, Hard. 410. v. Polhill, 1 1 Ves. jun. 257. (o; Dora. Proc. 1763; 5 Bro. P. (p) Routledge v. Dorril, 2 Ves, C. 592; see and consider Ware jun. 357. SECT, C l^B ] SECTION IV. OF THE EFFECT OF THE CREATION OF POWERS OJC Tiijg ESTATES LIMITED IN THE INSTRUMENTS CREATING THEM. J.T remains only to consider the effect of the creation of a power on the estates limited in the instrument creating" it : the effect of the execution of powers will form a subject of future enquiry. Where a power of revocation is deemed void, as in the Duke of Marlborough's case noticed in the last sec- tion, of course the estates actually limited in the instru- ment creating the power, cannot be affected by the power, but will take effect in the same manner as if it had not been inserted in the instrument. And the law is the same in regard to estates given in default of any ap- pointment under a power which is void in its creation. Therefore, if under a covenant to stand seised a general power of appointment be reserved, or given, to any person, and for want of such appointment, the estate be limited to some person within the consideration of blood or marriage, as the power would be void, the estate limited in default of appointment would take effect iii possession (cj). It is obvious, that every power of appointment is^ strictly speaking, a power of revocation to the extent of its operation ; but still there is a strikhig distinction (y) Warwick v. Garrard, 2 Vern. 7 ; Goodtitle i;. Pettoe, Fitzg. 299. between OF THE EFFECT OF THE CREATION OF POWERS. 129 between estates actuallj^ limited in a settlement with a power of revocation, and estates limited in default of the exercise of a preceding power of appointment. In the first case, the estates are vested subject to be re- voked, or defeated, by the exercise of the power. \\ hether, in the last case, the estates limited in default of appointment are, during the continuance of the power, contingent or vested, has been the subject of much discussion. The question arose in Leonard Lovie's case (r), and it was determined, that th • estates limited in default of appointment were contingent ( s ) . In Wal- pole V. Lord Conway (^j Lord Hardwickc held the same opinion. In Cunningham v. Moody (u) his lordship is supposed to have altered his opinion, and to have deter- mined, that the power of appointment does not suspend the vesting of the subsequent remainders ; and in Doe V. Martin (?(•), after a splendid argument, it was solemnly decided, that the estates limited in default of appoint- ment were vested subject to be divested. The court re- lied on Cunniiigham v. Moody in opposition to Leonard Lovie's and Lord Conway's cases. Mr. Fearne, who discusses these cases (x), enforces the authority of Doe and Martin, and between the case tmder consideration, and those upon limitations after a contingent limitatitm of the fee simple, takes this clear distinction, that in the latter the limitation is originallff dLU& finally contained in and made by the cotrjcjjance it- self, while the former have no existence till the power (r) 10 Rep. 79, see fo. S5 a. (a) 1 Ves. 1/4. (j) Sec 2 Ves. jun. "04, 5, 6. {w) 4 Term Rep. 3g; and see Doe (0 3 Barnard. 153; see 4 Term -y. Wellev, 7 Term Rep. 47S. Rep. 57 n ; and see 2 Ves. jun. (x) Cont. Remainders, 290 — 299, rog. 4th edir. K. is 130 OF THE EFFECT OF is executed, so ilnitj in truth, (here is no estate limited uutil an appointment is made. Lord Rosslyn, however;, in a still hitcr case (y), at first considered this doctrine very doubtful. He in- sistedj that in Cinnnngham v. Moody, it was not neces- sary to determine the point, and treated the case of Doe and Martin as a case of compassion, ilovvever, the point did not then call for a decision ; and in pronounc- ing his decree he did not advert to it. In a subsequent case he treated it as clear, that the power did not pre- vent the estates vesting' (".). A^'ithout considering whether it was absolutelv necessary to decide the point in Cun- ningham and Moody, Lord flardwicke's opinion is too clearly expressed to be misunderstood. He said, that the power of appointment did not make any alteration in the vesting of the remainder in fee; for the only efl'ect thereof was, that the fee which was vested was thereby subject to be divested. Besides these leading cases there are several dicta u|>on this point. In a case in Lord Raym. (a), Powell Justice, said, that if a fee simple be limited to such persons as A sh.all appoint by his M'ill, remainder over, that is a good remainder vested till the appointment. In Goodill 7\ Brighani (/.'), Mr. Justice BuUer put the very same case, namely, a power to A to appoint the fee, and in default of appointment to himself in fee, and held, that A could take nothing till his death, or till his appointment. But he must for the moment have forgotten the decision in Doe and Martin, which was decided eight years before, whilst he was a Judge of (r/J Smith V. Lord Camelford, 2 (a) Vol. 2. 1150, Ves. Jan. 698. ClJ 1 Bos, and Pull. igS. (::) See 5 Ves. jun. 748. the I THE CREATION OF POWERS. 131 the King's Bench, and in which hs entirely concurred ; and in a case which occurred about the same period as Goodill V, Bri^hain, he treated the fee as clearly vested till appointment, and referred to ih.2 case of Doe and Martin as an authority in that respect. Lord Thur* low (c), Lord Alvanley (d). Lord Redesdale (e), the pre- sent Master of the Rolls (/), aud Lord Eldon (^), have all expressed themselves decidedly of the same opinion. The result of (he authorities, therefore, is, that the power of appointment does not prevent the vesting of the estates limited in default of appointment ; and it is equally clear that the same doctrine applies to personalty ; and that where the money is absolutely given over in default of appointment, it is vested, subject to be divested by the execution of the power (A). Where a term is created by a settlement to raise por- tions, with a general power of revocation of the settle- ment, although the portions become actually duC;, yet, while the power subsists, it suspends and prevents the portions from being paijahlc, because the donee of the power may revoke at any time before the portions are raised and paid, although the right to the portions is become vested under the terms of the settlement (i). (c) Madoc "y. Jackson, 2 Bro. C. C. (/?>) Coleman z;. Seymour, 1 Ves. 588jseelRep. T.Redesdale,293. 209} see 2 Ves. 20S ; Gordon (^) See 4 Ves. jun. 636; Vander- v. Levi, Ambl. 364} Reade =:•. zee v. A clem, ib. 7/1. Reade, 5 Ves. jun. 748. {e) See 1 Rep. Temp. Redesdale, (i) Reresby v. Newland, 2 P. 293. Wrns. 93, slTd. Dom. Proc. '2 (/) See ; Ves. jnn. 583, Bro. P. C. 43/, (g) See 10 Ves. jun. 265. K 2 CHAP. C 132 ] CHAPTER III. BY WHOM POWERS MAY BE EXECUTED. SECTION I. CF THE LEGAL CAPACITY OF THE DONEE. Xo ascertain by whom a power may be execulod, we must first enquire info the legal capacity of the claimant ; and, secondly, \\e must examine the instrument creating the power, to sec that he is duly authorized to perform the act. I propose, tlicrefore, to consider, first, who is by law capable of executing a power ; and, secondly, to state a few special cases which have arisen on the second head of enquiry. And, first, every person who by tlie laws of England is capable of disposing of an estate actually vested in himself, may exercise a power over land, or, in other words, direct a conveyance of that land. By the common law a married woman cannot dispose of her own estate without a fine or recovery; but, simply, as the instrument, or attorney of anotlier, she may con- vev an estate in the same manner as her principal could, because the conveyance is considered as the deed of the principal and not of the attorney, and her interest is not afiected. When we consider tliat a power 7iot simply collateral <■; ivcs the complete dominion over the estate to the extent of OF THE EXECUTION OF POWERS BY MARRIED WOMEN. 133 of the poweFj we may perhaps incline to think, that a married woman ought not to be permitted, in opposition to the rule of law, to divest herself of any estate or interest by the mere execution of a v/ritins: without a tine or recoyery, although certainly there is no objection to her executing a power simple/ collateral. And that great lawyer Chief Justice Bridgman appears to have adopted this distinction (/j). However, it has long been firmly settled, that a married >yoman may execute a power whether appendant, in gross, or simplj/ collate- ral (/). Thus, if a married woman is tenant for life, with a power of leasing in possession, she caimot raise a mortgage term, for instance, without a fine or reco- very ; but by the mere execution of her power she may create a lease which will, at least in part, and may perhaps v/hoUy, take eft'ect out of her interest. So if she has a general power of appointment, with remain- der, in default of appointment, to herself in fee, she can- not afiect the remainder vested in lier except by a fine or recovery j but she may defeat the remainder, and con- vey away the estate by the execution of her power. It is not material whether the power is given to an un- married woman, who afterwards marries (m) ; or to a wo- (k) See 1 Cha, Ca. 18 j 2 Freem. Bayley v. Warburton, 2 Com. l68j and see Blithe's case, 2 49-4; Tomlinson -t;. Dighton, 1 Freem. gi j and Godolphin -u. P. Wms. l-lpj Travel "y. Travel, Godolphin, 1 Ves. 21. 3 Atk. 711, 2 Ves. I9I, cited (/) Harris v. Graham, 1 Ro. Abr. by Lord Hardwicke. 329, pi. 12, 2 Ro. Abr. 247, (to) Gibbons i;.Moulton,Finch 346; pi. 6 ; Gibbons v. ISIoulton, Churchill v. Dibben, Reg. Lib. Finch. 3 16; Daniel v. Uply, A. 1753, fol. 252. Latch. 395 Godb. 327, pi. 4J9 ; K 3 man 134 OF THE EXECUTION OF POWERS man while slie is married,, who afterwards takes another husband (n) : in both cases she may execute the power, and the concurrence of her husband is in no case csf scntial. But^ of course, a power given expressly to a Moman '' being sole," cannot be executed by her during her coverture (o). It must be remarked, that on the authority of the case of Rich v. Beaumount {p), it ua§ been sometimes considered doubtful whether a power given to a feme sole was not suspended by her marriage. The case was : That in a settlement powers were given to a single m'O- man to be executed by deed or will ; she afterwards married ; and during her coverture exercised the powers by will. Upon a bill filed by the appointee to establish the execution of the power. Lord King dismissed it^ on the ground that the remed}^ lay at law ; but upon appeal to the House of Lords the dismission Avas reversed, and the Court of Chancery was directed to state a case for the opinion of the Court of King's Bench, but it has never been ascertained what ultimately became of the case (^q). The case, however, has frequently been cited as an authority that a feme covert may exercise such a power (;■). In one case (i) Lord Hardwicke said, '' It lias heen determined in this court, that a. feme covert can execute a power as in Travel v. Travel, and in Rich (n) Bayley v. "Warbnrton, 3 Com. (p) 3 Bro, P. C. 308, 494 ; Burnet 1;. Mann, 1 Ves. 157. (0) Lord Antrim -u. Duke of Buck- ingham, 1 Cha. Ca. 17, 2 Freem. 168. There is an imperfect note of this case in 1 Sid. 101. (y) 4 Vin; Abr. 168, pi. 26; 22 Vin. Abr. 277, pi. 47 ; 3 Bro. P. C.308. (r) Sees Atk. 711. (s) See 2 Ves. 191. V. Beaumontj By married women. 135 V. Beaumouut, where the Lords sent a case to B. R. for their opmion, which they never did before:" and in another case, it is expressly stated, arguendo {t), that a case was sent from the Court of Chancery for the opi- nion of B. R., where it was held a good appointment. But, whatever was the decision in this case, the law is now clearly settled that a feme covert may execute a power given to her whilst sole. In Peacock v. Monk, Lord Hardwicke doubted whe- ther an heir at law of a woman would be bound bv a mere agreement entered into before marriage between her and her husband, that she might dispose of her estate notwithstanding her coverture (?<). Bat in Wright V. Englefield (a). Lord North ington held, that the wife might execute her power in the same manner as if she had a power over a legal estate ; and his decree was af- lirmed in the House of Lords. In this case, indeed, the legal estate was, at the time of the articles, outstanding in trustees (y) ; but Lord Northington appears to have grounded his decision on the fact, that the execution of the power was in favour of children ; and, therefore, there was a meritorious consideration. In a case which occurred a few months before (z), where the wife had the legal estate vested in herself, but had bv articles a power to dispose of it, which she executed in favour of a natural son, and then joined with her husband in levy- ing a fine to other uses ; Lord Northington held the execution of the power to be void, and that the estate (/) 2 Ves. tJ4 ; and see 1 Ves. 303, (j) Wright v. Lord Cadogan,6 Bro. 305. p. C. 156. (") 2 Ves. 191. (^) Bramhall v. Hal!, Ambl. 46?; (v) Ambl. 4(38, see Ambl. 474. It 4 - passed 136 OF THE EXECUTION OF POWERS BY INFANTS. passed by the fine^ and the court could not lend its aid^ because there was no meritorious consideration. Lord Northington, however;, was not correct in hold- ing a consideration to be necessary. The true principle on which equity ought to lend its aid is, that the agree- ment having" been made on marriage, the husband would be compelled to make a legal settlement. Accordingly, in Rippon v. I)awding(a), Lord Camden held, that under an agreement entered into previously to marriage, a devise by a feme covert seised of the legal estate was valid, and he would not enter into the consideration of the objects iu favour of whom the estate was devised. He said, it was a mistake to call it a question between volunteers. The agreement was made on marriage, and the wife might have compelled the husband to join with her in a fine, and he thought the case was govenied by Wright V. Cadogan, although the legal estate was vested in the wife. But where the agreement is, that the wife may dis- pose of the estate by will, a will made before the mar- riage, although subsequently to the agreement. Mill be revoked by the marriage, unless expressly authorized by the articles to be made before marriage (Zj). An infant cannot, at common law, alien his estate, unless by force of a custom ; but he, \ikGa,feme covert^ may at common lav» do any act where he is a mere in- strument, or conduit pipe, and his interest is not con- cerned (c). Upon the same principle it would seem to ( (0) Co. Lilt. 113 a J see Dy. 177* and eee Goulds. 2. S. C. pi, 32. pointed. 143 WHERE POWERS SURVIVE. pointed, and the devise was, that the executors should sell, and one died, it was the opinion of Anderson, Windham, and Rhodes, that the survivor could not sell : and there are other authorities to the same ef- fect (r). But cases arc not wanting on the other side of the question ; and in the case of Houell v. Barnes, although it was holdcii that the executors took an au- thority only, yet Jones, Crookc, and Barkeley, deter- mined, that the survivor could sell (5). But Jenkins thinks that this case depends upon the executors not being at first named by their proper names ; and that they took qua executors. He t^ives it as his opinion, that if a devise be that A and B, the executors, shall sell certain land, and near the end of the will the testa- tor also names them executors, if the one dies the other may sell, for the interest is annexed to the ex^ecutorship by this repetition in the will [t], Mr. Hargrave has endeavoured to establish, that where the power is given to executors, or to persons nominatun in that character, the survivor may sell, as the power is given to them ratione officii ; -xpA as the office survives, by parity of reason the authority should also survive (zt). And the liberality of modern times will probably induce the courts to hold, that, in every case where the (r) Lock V. Loggin, 1 And. 145 \ see Jenk. Cent. p. 44. (5) Houell V. Barnes, Cro. Car. 382, 1 Jo. 352, pi. 3, nom. Barnes case ; Anon. 2 Leo. 220, pi. 276 ; Milward r. Moore, Sav. 72; and see Anon. Dy. 371 b, pi. 3. (/) See Foone v. Blount,Cowp. 464. {u) N. (2) Co. Liu. US a J but see Pow. Dev. 302—310, where^ however, the two questions, viz. where executors take a fee, and where if they take only an au- thority, it will survive, appear'to be confounded. power WHERE PO\\ERS SURVIVE. 143 power is given to executors, as the ofSce survives so may the power, We shall hereafter see that it is well esta- blishedj that equity will interpose to prevent the conse- quences arising from the extinction of the power. As the law now stands, it seems : 1. That where a power is given to two or more bj their proper names, who are not made executors, it will not survive without express words. 2. That where it is given to three or more generally, as to '' my trustees/' '' my sons/' &c. and not by their proper names, the authority will survive whilst the plural number remains. 3. That where the authority is given to " executors," and the will does not expressly point to a joint exercise of it, even a single surviving executor may execute it : But, 4. That where the authority is given to them nomi^ natim, although in the character of executors, yet it is, at least, doubtful whether it will survive. I shall close this subject with Sir Edward Coke's ad- vice, to give the authority to the executors or the sur- vivors, or survivor of them, or to such or so many of them, as take upon them the probate of the will, or the like(,r). (x) Co. Litt. 113 a ; see Townesendi;. Walley, Mo. 341, Cro. Eliz. 524. CHAP. C 14* 3 CHAFrER IV: OF THE TRANSFER OF POWERS. SECTION I. OF THE TRANSFER OR DELEGATION BY THE ACT OF THE DONEE. Xn considering this branch of our subject, we may enquire, Ist, Whether a power is transferable by thef act of the donee of the power ; and, 2dly, in what cases it is transferred or executed by force of particulaf acts of Parliament;, or by act of law. And first, where a man has only a particular power, as a power to lease for life or years, he cannot make Jt lease by letter of attorney, by force of his power (x), because it is not a lease of the land, biit a declaration of the prior use; and the lessee comes in by the ori-^ ginal agreement under tlic first settlement. The power is in such case personal to tue owner of the land, for it refers to the first settlement (?/). So, wherever a power is given, whether over real or personal estate, and whether the execution of it (x) Lady Gresham's case, before Wray and Anderson, Ch. Jus. 9 Rep. 76 a cited ; 2 Rol. 393, agreed. See Attorney-General v. Gradyll, Bunb. 29 ; but note, that it was not necessary to decide this point ; and see Orby v. Mohun, 2 Vern. 542. (y) See Palm. 436. will OF THE DELEGATION OF POWERS. 145 will confer the legal or only equitable right on the ap- pointee, if the power repose a personal trust and confi- dence in the donee of it., to exercise his own judgment and discretion, he cannot refer the power to the exe- cution of another, for delegatus non potest delegare. Therefore, where a power of sale is given to trustees or executors, thej cannot sell by attorney (z). So, where a father had a power of appointment to his children over a real estate, and he delegated the power to his wife. Lord Hardwicke said, that this must be consi- dered as a power of attorney, which could be exe- cuted only by the husband, to whom it was solely con- fined, and was not in its nature transmissible or dele- gatory to a third person («). Again, where personal estate was given to such charitable use as A should appoint ; and he directed the money to be applied as B should appoint. Lord Hardwicke held the delegation void {b). So, where a testator gave his wife a power to appoint personalty amongst their children, and she delegated this power by her will to others. Sir Tho- mas Clarke determined that the deleg:ation was void (c) ; and the point has been so decided by Lord Rosslyn (ri). On the same grouiid, a person whose consent is made requisite to the due execution of a power, cannot authorise another as his attorney, to consent to any exe- cution of it ( e ) . It is frequently contended in practice, that a donee {%) Combes's case, 9 Rep. 75 b. (c) Alexander u. Alexander, 2 Ves. (a) Ingram ers are reserved at the present day. Now such powers as we have seen, are not forfeited, under the existing laws, bj attainder for treason ; and it can scarcely be supposed that penalties will ever be attached to treason by the legislature, which the court dared not to impose m the worst of times. Where the power is given to the crown, the ability to perform it is also given as incident to it. The King may commission another by lietters patent to perform the act; and upon performance of it, the old uses deter- mine without oilice found (t). But even where the benefit of the power is given to the King, it must of course be executed during the life of the original donee of the power, for with his death the power ceases. [s) See Hale, P. C. 245. (0 Englefield's case, Warner, ubi. sup. Hardwiu <», Th BY ACT OF PARLIAMENT, &C. 153 Thus we have seen how tender the law is in these cases, and that powers annexed to the mind or hand of tlie donee, do not pass to the crown, notwithstanding the express words of the statute of Henry VIII. But where the King's debtor has a power of revoca- tion for his own benefit, whatever are the ceremonies required to its execution, and although he die, with- out executing the power, the land may be extended for the debt, by virtue of the King's prerogative. The Judges have in all times been studious to advance the remedy for the recovery of the King's debts, for (as Dodridge observed) it is for the increase of his treasury^ and the treasury is the King's strength, and the King's strength is vinculum pads and nervus belli, the over- flowing fountain of his beneficence and benevolence (w). So, where the donee of a pov/er of revocation com- mits a contempt against the King's prerogative, the lands may be seised in the same manner as if he had executed the power for his own benefit. Thus, where a man having a power to revoke a settlement went abroad, and the King sent his privy seal to him, re- quiring him to return into the realm, which he refused to do j upon oath of the fact made by the messenger, by whom the privy seal was sent, process was issued against the terre-tenants, and judgment was given that they should forfeit the lands for the contempt (a:) (1). (u) Sir Edward Coke's case, 2 (z) Sir Robert Dudlie's case, 3 Roll 294, Godb. 289. Roll 304, cited. (I) That is, till the return of the person committing the contempt, when he is liable to fine and imprisonment. See William de Brittaine's case, Dy. 128, b. pi. 61, cited. The Fugitive's case, Dy. 375, b. pi. 21 ; 1 Hawk. P. C. pa. 59, s. 4. ':^ And 154 OF THE TRANSFER OP P0WER3, &C. And licre we must notice the case of a power of ap- poiiitmont vested in a bankrupt. The statute of 13tb Elizabeth, c. 7, s, 3, enables the commissioners to dis- pose of any estate, for such use, right, or title as such ofl'endcr then shall have in tlie same, " which he may lawfully depart withal :" and the statute of 21 Jac. I. r. 19, s. 1, directs the bankrupt lav/s to be expounded most favourably for the relief of creditors. We have already seen that a power is a mere right to declare the trust of the estate, ispon which declaration the statute of uses immediately operates. It is, therefore, clearly an use, interest, or right which the bankrupt inai; lawfully/ depart withal. And the better opinion, perhaps, is, that the bargain and sale of the commissioners will have the same operation, as a due execution of the power by the bankrupt whilst solvent would have had. This point has not only never been decided, but there is not, I be- lieve, even a dictum in the books on the subject. I have seen very respectable opinions, that the power is not affected by the commission, but I have never seen any reason? given iu favour of that doctrine. CHAP. [ 155 ] CHx\PTER V. OF THE EXECUTION OF POWERS. W E now enter on a large field of enquiry. I propose to consider, l.The mode in which a power ought to be exe- cuted, particularly with reference to the statute of uses, 2. By \vhat instruments it may be exercised, where tha power is silent in that respect. 3, Where conditions or re- strictions required or annexed to the execution of powers are duly complied with. 4. At what time a power may be executed, which will involve the consideration of partial executions. 5. Where a power is well exe- cuted, although not referred to, and the donee has not an interest in the estate. 6. What is deemed an exe- cution of a power where a man has both a power and an interest. 7. What qualifications may be annexed by persons executing powers ; and, 8th and lastly. The effect of the execution. SECTION I. OF THE EXECUTION OF POWERS, PARTICULARLY WITH REFERENCE TO THE STATUTE OF USES. Jb IRST then, we must bear in mind that a power is a mere right to limit an use. Now the statute, as we have seen, executes only the first use; or, as it is usually expressed, an use upon an use is void. This rule, therefore. 156 OF THE EXECUTION OF FOWERS^ WITH therefore^, renders it indispensably necessary to appoint immcdiatehi to the person intended to take, unless the parties are desirous that lie shall not have the legal eslafe ; for U the estate should be appointed to A, to the use of B, A would be the person to whom the use would arise under the original seisin ; and by force of the statute, the legal estate would be vested in him ; then the use to B, being limited to arise out of the use to A, would be void at law^ although good as a trust in equity. To apply this point to practice, let us suppose an estate to stand limited to such uses as A shall appoint by deed, to be exe^jiuted in the presence of, and attested by two witnesses, and that A is desirous of conveying the estate to such uses as B shall appoint. The appointment should run thus(l): Now this indenture witnesseth. That in consideration, &c. and pursuant to, and by force and virtue, and in exercise and execution of the power or authority to him the said A for this purpose given or limited, by the hereinbefore in part recited inden- ture, [the deed creating the power, which should always be recited] ; and of every or any other power or authority, in anv wise enabling him in this behalf; he the said A. dotn by this present deed, by him scaled and delivered in the presence of, and attested by the two credible persons whose names are intended to be hereupon hidorsed, as witnesses attesting the sealing and delivery of these presents, by him the said A, direct, limit, and appoint. That all that [par- cels and general words], shall henceforth remain and (l) See a 'precedent of such an appointment at length, Appendix, No. II. bcj REFERENCE TO THE STATUTE OF USES. 157 be, to the use of such person or persons^ &c. as B shaU appoint in the usual manner. By this mode the estates which may be created by B^ under the power vested in him, will at once, by force of the statute of uses, attract the original seisin ; and, as we shall here- after see, take effect in the same manner as if they were expressly limited in the deed creating the power. But if the appointment had been made to B and his heirs, to the uses, the statute would instantly vest the legal estate in B, and the intended uses would be mere trusts m equity. In Rich V. Beaumont {71), a question arose upon the doctrine under discussion, which ought not to be passed unnoticed. By a settlement, an estate was vested in trustees in fee, upon trusts, but the wife had a general power of revocation and appointment, which she exer- cised by will, and devised the estate to her son and hus- band, and then '' she ordered and directed, that her trustees, or such of them as should be living named in the settlement, should convey their trust estate to such uses, and for such persons as were named in her v/ill.'* Upon a bill filed in equity by the husband, to confirm the appointment, and obtain a conveyance of the legal estate. Lord Chancellor King dismissed it, and as against the trustees with costs, his Lordship declaring, that if the husband had any title to the premises in question, his remedy was proper at law, and not in equity. From this decree there was an appeal to the House of Lords ; and for the appellant it was insisted, that by the clause in the will, directing the trustees to convey the estate to the uses of the will, she expressly (») S Bro. P. C, 308. declared 158 OF THE EXECUTION OF POWERS, WITH declared her intention to be^, that the lej^al estate should remain in the trustees. And that if the will was con- strued to enure as a revocation of the legal estate out of the trustees, rather than as a declaration of the trusts of that estate ; the same would, by such con- struction, be made to enure contrary to the express words thereof, and contrary to the manifest intention of the party therein declared. For the respondent it was insisted, that if the will was a good revocation, the uses limited to the trustees were revoked, and conse- quently their legal estate was taken away and vested in the appellant ; and then there was no foundation for his applying to a court of equity, to have a conveyance from the trustees. The House of Lords reversed the decree, and ordered a case to be referred to the Court of King's Bench for tlieif opinion, ''' Whether the trusts limited by the will be uses executed, or trusts." It does not appear what the opinion of the judges on this point was. There can, however, be little doubt but that in this respect they agreed with Lord Chancellor King. Where the legal estate is required to be in trustees, to preserve contingent remainders, &c. a clause like that in the above will, may well be holden to ope- rate as an appointment to the trustees ; and then the persons beneficially intitled will take mere trust estates ; but if, as in the above case, the effect of giving tha legal estate to trustees, is merely to make a con- veyance from them necessary, the first appointment ought certainly to be deemed the limitation of the use, so as to carry the legal estate. And the subsequent clause may be struck out as repugnant or superfluous. It will be collected from the precedent in a preceding page, 1. that the deed executing the power should be expressed REFERENCE TO THE STATUTE OF USES. 159 expressed to be ia exercise of it ; 2dlj, of every other authority enabling; the donee in that behalf; aud^ 3dly, that it should be shown in the body of the deed, that the formalities required to the execution of the power are complied with. Every well-drawn deed of appoint- ment embraces these three points j the first clearly evinces the intention of the person executing the power, which is particularly necessary where lie has an interest as well as a power ; the second guards against any mis- recital of the deed creating the power, and in some, cases has reached powers which have been understood to be extinguished ; and the third affords internal evi- dence of the ceremonies havuig been complied with. And,, moreover, the attestation indorsed on a deed exe- cuting a power, should always state precisely, that the formalities were attended to. How far these circum- stances are absolutely essential to the valid execution of the power, will appear hereafter (o). Vv here a man has both a power and an interest, as if he have a general power of appointment, with remainder to himself in fee, or for any less estate, he is con- stantly made not only to exercise his power, but also to convey his interest. This may appear to be un- necessary, as the execution of the power divests the estates limited, in default of its execution ; but it is done in most cases, to guard against the power having been suspended or destroyed, in some, to guard against any defect in the creation of the power. The correct mode of effecting this is, first, to exercise the power, and limit the estate to the uses afterwards declared ; and (o) As to the first and second, see post. s.Q-, and as to the third, sec post. s. 3. then. 160 OF THE EXECUTION OF POWERS^ WITH theiij by a separate witnessing part, to convey the estate to the intended uses. Indeed;, this should always be done where the fee simple is intended to be conveyed to uses, although, as we shall hereafter see, if the estate be limited and appointed, granted and released to A, to the uses, the courts will endeavour to construe the con- veyance a release, and to consider the words of appoint- ment as mere surplusage, in order to effectuate the in- tention (p). This, however, cannot be done where the conveying party has not the fee in default of appoint- ment. Where it is intended to vest the fee simple in the party to whom the appointment and release are made, although it would certainly be an inartificial mode of conveyance, yet a deed, in which the appointment and release were blended, would effectually vest the fee in the appointee and releasee, and be entirely free from ob- jection. But it is to be observed, that although it is usual not only to exercise the power, but also to con- vey the interest, yet even a purchaser would not be en- titled to require a conveyance of the interest, limited in default of appointment, unless it could be conveyed without a fine, or common recovery. There are many cases in which a purchaser is compelled to take an estate merely under an execution of a power, as where, in de- fault of appointment, the estate is limited in strict settle- ment. The usual limitation to bar dower is to such uses as the purchaser shall appoint ; and, in default of appoint- ment, to him for life, remainder to a trustee and his heirs during the life of the purchaser, in trust for (/>) Fide infra, sect,^. him. ♦ REFERENCE TO THE STATUTE OF USES. 161 l)i!ii(l), remainder to the purchaser in fee. This li- mitation has two objects ; the one to enable the pur- chaser (1) Instead of limiting tlu^ estate to the trustee and his Aeir^, it is sometimes limited to him, his executors andadmirastrators, it being under" stood that executors or administrators may fake as special occupants. Lord Hardwicke always treated this point as clear ; Duke of Marlborough v. Lord Gddolphin, 2Ves. 6l ; Wiliiams v. Jekvll, 2 Ves. 681 ; West- faling V. Westfaling, 3 Atk. 4d0, 7 Ves. Jan. 44o, cited from Lord Hardwicke's notesj and Lc^rd Eldon has expressed tiie same opinion ; see Ripley V. "Waterworth, 7 Ves Jun. 425. But in the case of Cam;ibell v. Sandys, 1 Sch. and Lef. 2SJ, Lord Redesdale said, that the old au- thorities seemed the other way, and if the case were before him, he should feel great difficulty in determining according to the apparent opi- nion of Lord Hardwicke. Lord Redesdale, in support of his opinion, referred to two cases stated in Ro. Abr. tit. Occupant (G.) 2 and 3 ; the first of which is reported in Dyer 328, b. pi. 10, and in Leonard's third volume, p. 35, by the name of Lord Windsor's case, and is stated by Roll as a determination, that If a lease be made of land to a man and his executors pur auter vie, the executor shall be special occupant, al- though it be a freehold. He also referred to Comyn's Digest, Estate?, F. 1, tit. Occupant, where the case in Dyer is stated as a decision, that the executor shall not have the land as special occupant, for an occupant has the freehold, which an executor cannot take ; and Comyn also re- fers to the second case stated by Roll, as an authority for this point. " That case,'' iViy Lord Redesdale added, " which was long subsequent to the case in Dyer, is certainly in conformity (o the opinion of Comyn j and according to Salter v. Butler, Moore 664, Cro. Eliz. 901, Yelv. g ; and the law seems to have been understood by Peere Williams, 3 P. W. 264, note D, as so settled, though Peere Williams does not appear satis- fied with it." Now it is not too much to say, that no point is in practice considered more clear than that an executor or administrator may take a freehold estate as special occupant. The contrary opinion seems to have arisen from the case of a corporeal hereditament, of which there may be an oc- cupancy, and the case of an incorporeal hereditament, as a rent, of which there cannot be any occupancy, having been confounded. Roll seems to have drawn a just conclusion from the case in Dyer and Leonard. Jt M appears % 162 OF tHt EXECUTION OF POWERS, WITH chaeer by an exercise of his power, to convey the estate \vithout the concurrence of his trustee, and the other # by appears to have been taken for granted in that case, that an executor might be a special occupant, but there th« tenant pur auter vie had made a lease ; and the question was, whether the lessee should not be occupant. In the next case stated by Roll, the determination was, that of a freehold renl, the executor could not be special occupant. Lord C. B. Comyn without doubt confounded these cases ; for in support of his position, that an executor cannot take a freehold as special occupant, he refers at once to the case in Dyer, and the last case in Roll, whereas that case turned upon a corporeal, this upon an incorporeal hereditament : no two cases can be more distinct. The reason stated by Comyn, *' that an occupant has the freehold, which an executor cannot take," is copied from Roll's last case ; but there the reason is, " because that that [viz. the rent'\ is a freehold, which cannot descend to the executor," and not that a freehold generally may not be taken by an executor as special oc- cupant. The case of Salter v. Butler, which is referred to by Comyn and by Lord Redesdale, was also the case of a rent, and there the claim was by an administrator, and the rent was granted to the intestate, hi* executors and assigns, so that he could not claim as occupant, because the interest was not capable of occupancy, not by the grant, because he was not an assignee. As to Peere Williams, he simply refers to the second case in Roll, to show that an executor cannot be a special occupant of a rent, although he seems to think that upon principle, an executor might be a special occupant of even a rent, as well as aa heir ; so that if his opinion should be thought to bear upon the point, it is in favour of the executor's ability to take as special occupant. Lord C. B. Gilbert has taken the precise distinctions on this head, for which he refers to Roll's Abridgment, and the case in Dyer. That learned writer lays it down as clear, that an executor may take a freehold as special occupant; for though it be a freehold, which in course of law would not go to executors, yet they may be de- eigned by the particular words in the grant to take as occupants j and such designation will exclude the occupation of any other per- 60i;, Kecnuse the parties themselves, who originally had the possession, have tij.'ed it up by this appointment. Eut, he adds, that if a rent be gr^.nttu to J. u. and his execuiors, during the life of B, by the deatli of J. s. REFERENCE TO THE STATUTE OP USES. 163 by interposing the limitation to the trustee^ to prevent the fee from vesting in the purchaser, in default of ap- pointment, (for it has been dodbted whether a right of dower attaching on the inheritance can be defeated by the execution of the power), and at the same time to leave no legal estate outstanding, when the object for which it was created has ceaSed to exist. When the owner sells, although it is clear, that by virtue of his power he may convey the fee to the purchaser, yet I may say it is almost the univers^ practice of the pro- fession, not only to make the vendor exercise his power, but also to make the vendor and his trustee convey their interests in default of appoiutment. Sometimes a diffi- culty arises in procuring the concurrence of the trustee; and if the purchaser is satisfied that the power was well created, and is in existence, he may safely dis- pense with his concurrence. But if this be not the case, the purchaser ought to insist on the trustee joining, as the entire fee simple could not be gained without a con- veyance from him. Besides, it might turn out that the^ owner had destroyed his power, and forfeited his life estate ; in which case the freehold in possession would be vested in the trustee, and an ejectment could not be maintained under a conveyance in which he' did not join. \'Vhethera purchaser is m all cases intitled to insist " upon the concurrence of the trustee, is perhaps not a J. S. the rent is determined, because the. executors cannot take as special occupants, since the n;uure of the thing lying in agreement, is not ca- pable of occupation ; nor can they take by the grant, because then tliey must take as representatives, which they cannot be of a freehold ; andL the law will not permit people at their pleasure to vary the course of descent. Bac. Abr. tit. Estate for life, s. 3 ; and see Savery v. Dyer, Asiibl. 140. M 2 cleat ♦ 164 f(pF THE EXECUTION OF POWERS, WITH clear point. In a case nearly similar to tliii, in the year 1748, Mr. Marriott and Mr. Wilbraham thought (hat the purchaser coufft not insist upon the concurrence of the trustee ; hut this appears to have proceeded, in a gTcat measure, from their opinion, that in the case be- fore them, the limitation to the trustee was contingent. Mr. Booth thought the limitation a vested remainder ; and he considered the trustee to be a necessary party to join in the conveyance to the purchaser. He said, al- though it were true that if the vendor's power remained entire, untouched, unextinguished, or suspended, then the use might well enough arise to the purchaser; yet he might venture to affirm, he never saw a deed settled with good advice, but what not only contained an ap- pointment in virtue of the power, but also a grant by way of conveying the estate and interesjt of the vendor, and all claiming under or in trust for him. The par- ties agreed to be bound by Mr. Filmer's opinion ; and he thought, with Mr. Booth, that the purchaser was intitled to require the concurrence of the trustee, who accordingly joined (r). It has just been stated to be doubtful, whether, when the fee is vested in the donee, in default of appointment, a right of dower, which has attached on the fee, caa be defeated by an exercise of the power. This doubt will be considered hereafter (y). Until the point is de- cided, it is in these cases absolutely necessary, not only to make the husband exercise the power, but also to make him and his wife join in levying a fine, in order to extinguish her right of dower. The fine must be at the vendor's expence. (r) 2 vol. Ca. and Opin. 29, and (s) Vide infra: sect. 8. MS. ia tot, veriis. In REFERENCE TO THE STATUTE OF USES. 165 In a preceding page I put the case of an estate being conveyed to such uses as A shall appoint, and of his desire to convey the estate as B ^jfn^W appoint. Perhaps there is no conveyancer to whom, in the early part of his professional life, a doubt has not presented itself in regard to the validity of such an appointment. Two objections have been made to it which have come within my observation ; the one, that it is contrary to a known principle that a power cannot be delegated ; and the other, that it is a new attempt at a perpetuity. Both these objections are easily answered. As to the first, the rule that a power cannot be delegated, is not, as we have seen, a general inflexible rule, but is simply a regulation, that a confidence reposed in one cannot by him be delegated to another (t). This rule, therefore, is inapplicable to the case before us. For no confi- dence was reposed in A, but the estate was, merely for his own convenience, conveyed to such uses generally as he should appoint. In regard to the second objection, the limitation has no greater tendency to a perpetuity, than a simple conveyance in fee. Under the power in question, the donee may tie up the estate for exactly the same period, but not longer, than he could were he seised in fee. This will be explained hereafter (w). To recur once more to the nature of powers, let us put the same case before the statute. A seised in fee, in trust to dispose of it as B shall direct; B directs A to dispose of it as C shall direct. To this no objection can possibly be framed. Then comes the statute, which does not operate with eft'ect till the last power is exer- cised. When B exercises his power, it in truth ope- (/) yide supra, ch. 4, sect. 1. («) Fide infra, ch.Q, sect. 1, M 3 rates 166 OF THE EXECUTION OF POWERS, WITH rates as a transfer of his equitable estate or riglit, and the seisin originally created (whether it remain in A, or be innubibus, or in levta iiicognita, or in custodia Icgis) waits ufntil estates are raised by C's power ; and when this last power is exercised, and not till then, the statute transfers the legal estate. In well drawn deeds, in which powerf of sale and ex- change, and of appointment of new trustees of real estate^ arc inserted, it is usual to give the trustees of the powers an express authority t^ revoke the old uses, and to appoint such new usesas will effectuatethe intention of the parties, and the declaration for this purpose cannot be too general. Therefore, in the power of sale, it should not be de- clared that the trustees shall appoint to the purchaser in fee, as a doubt might be entertained by some, whether it warranted an appointment to uses to bar dower ; but the trustees should be authorized to limit such uses as will carry the contract into execution. It is not, however, necessary to give express powers of revocation and new appointment, for whatever be the form in which a power of sale is given, it v/ill operate as a power of revocation and new appointment, and may be executed accordingly. Thus, it was clearly holden by the Lord Keeper, in the Bishop of Oxford v. Leighton, tliat a direction that a releasee to uses in a settlement should convey to such uses as A should appoint, amounted to a power of revoking and limiting new uses, although the proviso was unskil- fully penned (zi). All old powers of sale and exchange merely expres?, that the trustees may sell or exchange the land, and do not give express powers of revocation and new appoint- («) 2 Vern. 3/6, supra^ ch 2. ment. REFERENCE TO THE STATUTE OP USES. 167 meat. Sometimes the trustees are made merely to '' ap- point and make sale of," or to '' appoint and sell" the lands to the uses : the words of th§ power being followed, with the addition of the word appoint -, and sometimes they are made to expressly revoke the uses of the settle- ment, and then to appoint to the new uses. Either mode will effectuate the uitention. The latter is sometimes ohjected to by unskilful persons as not authorized by the power. But to this objection the Bishop of Oxford's case is a decisive answer. The same observations apply to powers to appoint nev/ trustees. The povrcr of appohiting new trustees usually in- serted in settlements, directs, that upon the ajq^ ointment of a new trustee, all such conveyances, &c. shall be executed as will effectually vest the estates in the old and new trustees, to the uses of the settlement. And de- clares, that every new trustee, when appointed, shall have the same powers, &c. as if nominated in the deeds. Now, it seems quite clear, that no more was originally intended by this power, than that the trustees to pre- serve conting-eist remain Jers, should transfer the esate limited to them for that purpose (which is a vested (.r) remainder), or any other estate actually vested in them, to the new trustees, who would be enabled to exercise the dilFerent pov-crs of slje and exchange, &c. created by the settlement, under the express direction contained in the deed, tliat every nevv' trustee should have the saoie powers as the old trustee had. But it has become usual to consider it essential, that the new trustees should have a seisin to serve the uses, in the same manner as the old trustees had, although it does not always happen that (.v) See Dormer v. Fortescue, Wiltes 32/, M 4 > ' the 168 OF THE EXECUTION OF POWERS, WITH the trustees of the powers are the persons seised to the uses, nor is it at all necessary that they should be. To raise til is new seisin two deeds are necessary; by the first, the uses of the settlement must be revoked, and the estate appointed to a stranger in fee, and the old trustees must join in conveying the estate to him, and then the stranger must reconvey (which he may do by indorsement) to the uses of the settlement, in the same manner as if the new trustee's name had been inserted therein. The po^^ er of revocation and new appointment is considered to be clearly implied by the declaration in the power ; and, supposing no such power to exist, yet the estates to preserve contingent remainders are eftec- tually vested in the old and new trustees by the actual conveyance. This mode assumes that there is a seisin in the releasees to serve the uses, and that that seisin is not transferable, for otherwise it would not be necessary to defeat the old uses, and raise a new seisin in the old and new trustees to serve them. If it <^ver should become necessary to decide the point, there is little doubt but that it will be determined; 1. That the power only means that the estates actually vested in the trustees shall be transferred to the old and new trustees, which may be done by one deed operating under the statute of uses : 2 That they may then exercise the powers created by the settlement : and, consequently, 3. That there is no seisin in the trustees to transfer, and therefore the re- vocation and appointment is nugatory and of no effect. Of course these observations do not apply to a case where the fee simple is vested in the trustees. In that case, clearly, one conveyance only is necessary. The old trustees may convey by lease and release to the new trustee. REFERENCE TO THE STATUTE OF USES. 169 trustee, to the use of himself and the old trustees in fee, upon the trusts. Admitting that the usual power of appointment re- quires the seisin (if there be any) in the old trustees, to be Tested in the new trustees, it will not be denied by the most strenuous supporters of this doctrine, that this ceremony is not necessary where the power expressly negatives that construction: the powers in the settlement, it is quite clear, may be executed by a person not hav- ing any seisin vested in him to serve the uses : therefore, to prevent the necessity of this artificial, circuitous mode of appointing new trustees, it might be adviseable to ex- pressly declare in the deed creating the power, that upon the appointment of any new trustee, the estate of the trustees to preserve contingent remainders shall be con- veyed to the continuing and new trustees, to the uses of the settlement. And that every new trustee may act in the execution of the powers, without being invested with the seisin (if any) in the old trustees to serve the con- tingent or future uses. The usual power of revocation and new appointment introduced into this power of ap- pointing new trustees is, however, to be preferred, as its operation is now generally known : a circumstance which is in practice of infinitely greater importance than the expence of an additional deed. The distinctions taken in a preceding chapter, between powers deriving their effect from the statute of uses and common law authorities, will have led the reader to ob- serve, that the observations in the opening of this chap- ter, as to the necessity of appointing to the uses at once, do not apply to common law powers.^ AVhere the power is given by will, without a seisin to serve 170 OF THE EXECUTION OF POWERS, "WITH serve the estates to be created, it is a mere common law authority ; and it should, therefore, seem, that an ap- pointment by virtue of such a power to A, to uses, would not of itself vest the legal estate in A, but would give the legal estate to the real objects of the appointment ; for the question is free from the technical objection of an use upon an use, and the single point to be ascertained, is the intention. The appointment merely op^^rates as the designation of a person to take under the will, a de- vise to him, by which, either directly, or through the medium of a devisee to uses, would have given him the legal estate according to the intention of the testator. But where the power is given through the medium of a devisee to uses, if it should be thosight that it operates under the statute (y), the appointment must receive the same construction as an appointment under a like power created by dcecL Powers under wills and deeds are both distinguishable from a power to convey an estate under a letter of attorney. The estates raised hy the execution of a power (whether it be created by deed or will) take effect as if limited in t!ie instrument creating the power. A devise of an authority is within the statute of wills (z), and when the authority is exercised, the estates created by it come in lieu of the authority. In the case of a deed creating a power, the seisin or interest to serve the estates is actually raised by the deed itself, and the estates limited under the power accordingly derive their essence from that seisin : but in the case of a common letter of attorney, no seisin is created, nor does the estate pass by or by virtue of the power, which merely autho- rizes the attorney to convey the estate in the name of the (y) Vide supra, p.l 18. (a) Townesend v. Walley, Mo. 341. principal. REFERENCE TO THE STATUTE OF USES. 171 principal. The conveyance is, in fact^ the deed of the principalj and it is considered as executed by him. It isj therefore, essential that the deed should be an ope- rative, independent, and substantive conyeyance. If it be a feoffment, it must be accompanied with livery of seisin ; if it be a barg-ain and sale, it must be enrolled ; and if it be a release, it must be grounded on a bargain and sale for a year under the statute,, or a lease at common law with actual entry. And the land may consequently be conveyed to one to uses, and the statute will execute the uses. The estates created will depend simply on the instrument in which they are contained, although the deed itself depends for its validity as a conveyance, upou the letter of attorney, by virtue of which it was ex- ecuted; for the power must be produced before the deed can be read in a court of justice (a). And we may here dismiss the consideration of letters of attorney, with this one observation, that the deed must be exe- cuted i\\ the name of the principal; but where that is done, it is immaterial whether the attorney place his own name first or last. Therefore, an execution thus, '"for A. B. (the principal), C. D. (the attorney), L. S. is valid {b). It is usual to declare in powers of revocation and new appointment, that the donee may revoke, and by the same, or any other deed, appoint new uses ; but it is clear, that without this provision, a power of revocation and new appointment may be executed by the same instrument, unless the deed creating the power expressly require dis- tinct deeds. The former uses cease ipso facto hy the revocation, without entry or claim (c). ^The instrument (fl) Johnson v. Mason, [l Esp. Rep, {I) Wilkg v. Backs, 2 East. 1 42. 89- (c) Sec post, sect. 8. ' is. 172 OF THE EXECUTION OF POWERS, &C. is, in construction of law, first, a revocation of the old uses, and then a limitation of the new uses (d). Nor is this the only case in which the law adjudges priority in distinct j)arts of one and the same deed. It is upon this principle, that a lease and release in the same deed, although certainly a very informal conveyance, has been several times ruled to be a good conveyance, for priority shall be supposed. We have seen that every power is, in effect, a power of revocation and new appointment ; and it is, therefore, in many cases of absolute necessity that the powers should be allowed to be executed by the same deed. Where it is intended not to make an irrevocable ap- pointment, an express power of revocation should be re- served in the deed executing the power : if it be omitted the appointment cannot be revoked (ej. (d) Digges's case, 1 Rep. 164—6 resol. S. C. Mo. §93 ; Co. Litt. 237 3* (^) ^^'^'^ iTi/ra, sect. 7. m SECT. C 173 1 SECTION II. OF THE INSTRUMENT BY WHICH A POWER MAV BE EXECUTED. W HERE a power is given generally^ without defining the mode in which it must be executed^ it may be exer- cised either by deed or will ; and as the operation of the instrument will simply be to declare the use^ to serve which we must assume that a sufficient estate is already legally created;, an estate of freehold may be limited without livery of seisin^, a bargain and sale for a year, or an actual entry by the appointee ; nor is it essential that the power should be executed by deed, a simple note in writing, even unattested, would be a good ex- ecution of the power [f). So whether it be a common law authority given by will, or a power operating under the statute of uses, it may be executed by fcofFmeixt (^g), covenant to stand seised (Ji), lease and release (/), or lease and release and fine {k). But although all these modes are effectual, yet they are Jmproper appointments. They do not operate as a feoffment, covenant to stand seised, lease and release, or fine ; but as an appointment of the (/) Saunders v. Owen, 2 Salk. Thomas, 3 Burr. 114]. 467 ; and see 3 East 440. {i) Dyer i>. Awsiter, 1 P. Wms. (^) Daniel v. Upley, Latch 9, Jp, lQ5 cited, 10 Mod. 34 nom. 134> 1 Jo. 137. Gier'u.Osseterj Dightom;.Tom- {h) Stapleton's case cited by Hale, linson, 1 Com. 194, 1 P. Wmi. Chief Justice, 1 Ventr. 228 ; 149. Dame Hasting'sca8e,Raym. 239; (^) Videsupra,^. 68. 3 Keb. 5U cited, S.C. Right y. estsitc. 174 OF THE INSTRUMENT BY WHICH estate, or direction, or declaration of use under the pow er. Therefore, if a pow cr under the statute is, for instance, executed by lease and release, upon which uses are declared, the releasee will be invested with the legal estate by force of the statute, and the real objects of the deed will take mere trust estates. Although where a power is not restrained to be ex-^ ecuted by deed, &c. it may be executed by a simple note in writing ; yet, if the power relate to real estate, and the donee exercise it by will, the will, it is said by most writers, must be executed as a proper will, and must consequently be attended with the solemnities' required by the statute of frauds. The cases cited for this position are, Longford v, EyreC/), and WagstafF r. Wagstaff (w) ; but, in the last of these cases, the trust was for A, his heirs and as- signs, or to suck person or persons as he or they should direct; and Lord MaccLssfield held this to be no more than a common trust of lands in fee simple, for the last words were no more than what was implied before, and expressio eoruin qua; tacite insunt nihil operatur. And in the first of the above cases, the power was expressly required to be exercised by '' zviU,'* or, '' writing in the nature of a will," which Avords are construed to mean such a will as is proper for the disposition of lands within the statute of frauds ; and I have not met with even a dictum in the books that where a power is given generally, and without refereitee to any instrument, a will made in execution of it must be treated as a proper will of real estate. It seems, indeed, once to have been holden, that if a powei\. although not required to be (/) 1 P. Wms. 740. {in) 2 P. Wms. 258. SO, A POWER MAY BE EXECUTED. 175 SO, was executed by bargain and sale, the deed must be enrolled as a proper bargain and sale; but Lord Chief Justice Hale was decidedly against this construction (n). His is certainly the better opinion. And, in regard to a u'illj it would be rather a refined distinction that' the power may be executed by a simple note in writing un- attested ; but that if it be thrown into the shape of a will, it must be executed in the same manner as a proper will of land. It must be admitted, that a power may be given to appoint real estate by will without any wit- ness (o) ; and it would, therefore, be a great stretch to hold that three witnesses are necessary in the case under discussion. («) Ingram -y. Parker, Raym. 239; 3 Keb. 511, 538; 1 Ventr. 290, 291. {oj Fide supra, ch. 2, sect. 1. * SECT. C i'76 3 SECTION in. OF THE COMPLIANCE WITH CONDITIONS ANNEXED TO A POWER. W .... ' ' E now come to the cases in which particular circum- stances are required to attend the execution of the power : these are generally, first, a particular instru- ment ; secondly, a particular mode of execution ; and, thirdly, conditions not strictly relating to the instrument, as the consent of third persons, tender of money, or the like. Where forms are imposed on the execution of a power, it is either to protect the remainder-man from a charge in any other mode, or to preserve the person to whom it is given from a hasty and unadvised execution of the power. In each case the circumstances must be strictly complied with : in the first, it would be in direct oppo- sition to the agreement to consider the estate charged when the mode pointed out is not adhered to (/?) ; in tho second, to disp.'^iise with the solemnities and forms re- ^ quired to attend the execution of the power, is to deprive a man of the bridle which he has thought proper to im- pose on his weakness or frailty of mind, in order effec- tually to guard himself against fraud and imposition {q). Besides, the circumstances required to the execution of a power are perfectly arbitrary, and (except only as they are in fact required) unessential in point of effect to the validity of any instrument by which the power (p) See 7 Ves jun. 500. {q) 3 Cha. Ca. Q6, 107 i and see Piggot V. Penrice, Com. 250. may OF tHE COMPLIANCE WITH CONDITIONS* 177 may be exercised. This is laid down and admirably enforced by Lord Ellenborougli^ Chief Justice, in the great case of Hawkins and Kemp Cr). There the terms of the power required that the revocation should be by deed or instrument in writings, executed in the presence of, and attested by, three credible witnesses, and enrolled in one of his Majesty's Courts of Record at Westmin- ster, and with the consent and approbation of Hav/kins's wife, his father, father-in-law, and also of several trus- tees, being in all nine persons. The Lofd Chief Justice said, that every one of these required circumstances was in itself perfectly arbitrary, and (except only as it w^as, in fact, required) unessential in point of effect to the legal validity of any instrument by which the old uses should be revoked or new uses declared. It was in itself immaterial whether the instrument or writing, purporting so to revoke and declare the uses, should be by deed ; whether such deed should be executed in the presence of what, or any, number of witnesses ; whe- ther it should be afterwards attested by the w itnesses, and ultimately enrolled in any Court of Record ; and whether it should be sanctioned by the' consent and ap^ probation of the several trustees named for that purpose. It might (if it had so pleased the parties creating the power) have been done by any writing of the persons so authorized, unsealed, unattested, unenroiled, and un- sanctioned, by any consent or approbation whatsoever. If these circumstances were unessential and unimportant, except as they were required by the creators of the power, they could only be satisfied by a strictly literal and precise performance. They were incapable of ad- (r) 3 East 410. N mitting ViS OF THE COMPLIANCE WITH CONDITIONS. mitting aiiv substitution, because these requisitions bad no spirit in them which could be otherwise satisfied ; in- capable of receiving any equivalent, because they were in themselves of no value. If, therefore, a writina* is required, a disposition by parol will be invalid, although the property might by law be so disposed of (s). If the power is required to be executed by ugqCi to be enrolled, the deed must ac- cordingly be enrolled ; if a particular court be named, that court must be resorted to(0- If the consent of particular persons be required, their consent must be obtained (a). If two witnesses are required, one will not do ; if the witnesses are to be of the rank of noble- men, commoners will not satisfy the words (x^. If suf- ficient subsidy men be required as witnesses, sufScient and credible persons who are not subsidy men will not be good witnesses (?/). If a seal be required, an instrument under hand only will be an invalid exercise of the power (z). If the instrument is to be signed, it cannot be executed otherwise (a) (1); and if signature and (5) Thruxton V. Attorney-General, (x) Bath and Montague's case, 3 1 Vein 340. (/) Digges's case, I Rep. 1/3. (u) Hawkins v. Kemp, 3 East 410 J and see Mansell •!>. Man- scll, Wilm. 36. Cha. Ca. 55, 2 Freem. ig3. (3') Kibbet V. Lee, Hob. 312 j see 3 Cha. Ca. 90. (c) Dormer •y. Thurland, 2 P.Wms. 500. {a) Birde v. Stride, Bridg. 21 cited. (1) The statiue of frauds {2Q Car. 2, c. 3,.s. 5) renuires wills of land* to be in writing, and signed by the devisor. Upon the authorities it is a question, whether sfaling is not signing (Lemayne t , Stanley, 3 Lev. 1 ; Lee V. Libb, I Show. 6i); Warnelord v. Warneford, 2 Str. 764 ; Smitli V, Evans, OF THE COMPLIANCE WITH CONDITIONS. 179 and sealing be required, an instrument unsigned will not be valid although sealed (ft). If notice is required to be given, the execution of the power will be void if notice be not given accordingly (c). And so in every case that the ftigenuity of man can devise the terras of the power must be complied with. But where the appointment is to a charity, any wri- ting, however infonnal as an execution of the power, is good as an appointment within the statute of charitable uses (^) ; for this statute supplies all defects of assur- ance which the donor was capable of making (e). The intent of the statute, it has been said, was to make the disposition of the party as free and easy as his mind, and not to oblige liim to the observance of any forms or ceremony (y). By an act of George the Second (g), gifts to charitable uses arc required to be made by deed, indented, sealed, and delivered, m the presence of two or more credible witnesses, twelve months at least before {b) Thayer a-. Thayer, Pahn. 112 ; {e) Attorney-General v. Burdet, 2 Blockvill V. Ascot, 2 Eq. Ca. Vera. 755. Abr, 659, side note. {/) Attorney-General v. Rye, 2 {c) Ward V. Lenlhal, 1 Sid. 143. Vern. 453. (d) 43 Eliz. c. 4; Piggot v. Penrice, (g) y Geo. II. c, 36. Com. 250, Prec.Cha. 47J. 1;. Evans, I Wils. 313; Grayson -y. Atkinson, 2 Ve«. 454 3 Ellis v. Smith, 1 Dick. 225, 1 Ves. jun. 11; see 2 Bla. Comm. 306; Dougl. 214, 2d edit; note. Dime tj. Monday, Sid. 362, was before the statute). But, without question, if the point should ever call for a decision, if would, in conformity to the express words of the statute, and the geseral opinion of the profession, be holden, that sealing is not signing. N 2 the 180 OF THE COMPLIANCE WITH CONDlTlONSi. the death of tlic donor, aiul llic deed must, be enrolled in the Court of Chancery within six calendar months after it is executed. Now this act can no more be con- sidered as a repeal of the statute of charitable uses^ than the statute of frauds can of the statute of wills. And it, therefore, still seems, that if in an appointment, the solemnities imposed by the act of Gcori2:c the Second, are attended to, the gift will operate as an appohitmcnt imder the statute of charitable uses, although the in- strument is not executed in the manner required by the instrument creating;' the power. But as the act of George applies as well to appointments under powers as to original conveyances, if the donee wish to appoint to charitable uses, although, under the power he might ap- point by a simple note in writing unattested, yet he must conform to the directions of the act. But to return, the rule that every circumstance re- quired to the execution of a power must be strictly at- tended to, is so clear and plain a rule, that we might here dismiss this part of our subject were there not many- cases in which particular expressions imposing restraints on pow ers, or modes of executing them, have received a judicial exposition. I proceed, thereforcj to consider these cases in the order before proposed ; and although the courts cannot dispense with the form prescribed, yet we shall find that they in general incline to put a liberal construction on the words of the power. And first as to the instrument. — If a deed k expressly required, the power cannot be executed by will. This OF THE COMPLIANCE WITH CONDITIONS. 181 This was decided by Sir Joseph Jekyll in the case of Woodward v. Halsey (/z) (I), in wliicli a power of revo- cation by deed scaled and delivered was holdeii not to be well executed by awil!^ although sealed and delivered. And the decree was afiirined by Lord Chancellor King, who saidj that factum was a teclmical word^ and as well known in the law as a fine or recovery, and that a will could not be a deed. The same point was decided in the case of the Earl of DarliDgtoa v. Pulteney (z), in which the former case was not cited. Lord Manslield took lip the question in the same way. lie said, that the power was emphatically reserved to be executed by '^^ deed." Now, the word deed;, in the understanding of law, has a technical signification to which a will is in no respect applicable. This opinion was given upon a {h) Rolls, Feb. 1727, MS. 6 Bro. V. C. by Toail. i;5 ; and (a) Cowp. 260, confirmed by Doe -J. see Bashell "y. Bashell, 1 Rep, Lady Cavan, 5 Terra Rep. 567, Temp. ReJcsdale, 96. (1) According to the Register's book the power was, '' by any deed or deeds in writing, under his hand and seal, and sealed and delivered by hhn in the presence of three or more credible witnesses, to revoke, make void, alter, or change, any of the uses, Sec. therein limited j and by the same deed or deeds, or any other deed or deeds, in writing, under his hand and seal, and by hin:i sealed and delivered in the presence of three or more credible witnesses, to limit new uses." It is said in Mose. 46, that the Master of the R.olls held the will to be a revocation, but the Register's book, in this respect, agrees with the above notej Reg. Lib. B. 1727, fo. 212. Upon theeppeal to the Chancellor, he directed the point to be tried at law in an action of ejectment, Reg. Lib. B. 1727, fo. 353. In the next year, upon the plaintilT''s petitioq*, this order was directed to be entered, Reg. Lib. B. 1728, fo. 454. I searched 10 the end of the year 1/31, without meeting with any further trace of the cause. N 3 case 182 OF THE COMPLIANCE WITH CONDITIONS. ca^^e sent out of the Court of Chancer V;, and Lord Chancellor Bathurst decreed^ according to the certificate of the Court of King's Bench, that the [tower was not well executed. And the converse of the foregoing proposition holds equally true: a power to be executed by will cannot be executed by any act to take effect in the life time of the donee of the im-wer. This was laid down by Lord Hardwicke in the case of Whaley v. Drummond (Z^). He said, that where a power is given to charge an estate by will, the person having the power cannot execute it by any act m his life time. But the mere circumstance of the estate being limited to A for life, and " after his death," or " then" to be at his disposal, will not, by implication^ restrain the execution of the power to a will (/). And, in favour of the intention, a settlement to the use of a man's will might, perhaps, be construed to mean not simply a disposition by testament, but any dis- position by deed or otherwise. This question arose in the reign of James the First, upon a dispute between the Earls of Ormond and Desmond, who bound them- selves in ^a penalty of 100,000/. each to abide by the King's award. The case was simply this : The then late Earl of Ormond sutfered a recovery of certain estates to the use of his last will. By writing, under his hand and seal, he declared that the recoverors should stand seised to certain uses. The question was, whether he could revoke the uses. The tase was referred to the two (/) Ch, E^ter Term, 1/45, MS. (/) Anon. 3 Leo. 71 ; Thomlinson Reg. Lib. B. 1744, fo. 150 ; ses v. Dighton, 1 Com. 1()4, 1 P. Reid V. Shergold, 10 Ves. jun. Wms. 149. 370. Chiefs, OF THE C. MPLIANCE WITH CCXDiTIONS. 183 Chiefs, Montague and Hobart, and Justice Dodridge. They all agreed, that the fee resulted to the Earl in the mean time. And IMontague appears to have thought that the settlement took effect out of bis interest, and not as an execution of his power ; and he accordingly held, that it was not revocable. Hobart and Dodridge on the contrary held, that the instrument operated as an execution of the power, and that the uses were always revocable, because they were grounded upon the reco- very which was to the use of his will, which was always subject to change. Secondly, they held, that the reco- verors were seised to the use of his last will, TJuhich was not to be understood a testament onlij, hut to be extended unto any other voluntary disposition or gratuity zvhat- soever. However, upon this difierence of opinion, the King took the opinion of some of the other Judges, who agreed w itli Montague^ and so the point in question was not decided (w). The point in the foregoing casQ is not likely to arise at this day, as uses are generally declared in a more formal maimer. And it is clearly distinguishable from a power to appoint hy will ; for in this case the word " will" evidently points to the instrument, whilst in that the declaration to the use of the Earl's will, was considered to mean rather the mind of the donee than the ijistrument by which his intention was to be ex- pressed. But, if it should be so considered, yet as the law now stands, unless the execution was testamentar>% it should seem that it could not be revoked without an express power reserved. (//i) Earl of Ormond's case. Hob. 348 3 see 3 Cha. Ca. 64, 100 ; and Shepherd v. Speucer, 1 Keb. 821. N 4 However, 184? OF THE COMPLIANCE WITH CONDITIONS, However, it is clear, that even where a power is re- quired to be executed by '^'^the will," or, '' last will and testament" of the donee of the pov/er, an instru- ment, although sealed and delivered as a deed, will, if testamentary in its nature, be a good execution of the power. Thus, in a case in Dycr(?2), where the uses of a reco- very were declared to be, fo perform the wili of the per- son who sufiered the recovery, he executed the power by a deed indented and sealed : the question was, whe- ther he could change the uses. Dyer and other Judges held, that he might well alter his will, for the deed was quasi a will, which is changeable. In this case, there- fore, the point was taken for granted. Lord Chief Jus- tice Treby, in adverting to the case, said, that the in- strument was a will, for though it were in the form of an indenture between several parties, yet when he says he wills so and so, after he had recited a power to de- clare by will, this must be taken for a will, or it is no execution of the power (o). And it is now well settled by a series of decisions, that if the instrument executing the power is in its nature testamentary, the mere circum- stance of its being in the form of a deed upon stamps, and sealed and delivered in the usual way as a deed, will not prevent it operating as a will {p). More in his celebrated argument in Lord Buckhurst's case(r/), cites Lord Awdley's case in a manner which has induced an inference, that a power to be executed by (n) Anonymous, Dyer 3 14 a. pi 97- Ves. jun. 20i ; and see Devereux (o) SeeSCha. Ca. 86; andsecib.C4. v. Moor, I Keb. 697 ; Trimmer (p) Hixon V. Wytham, 1 Cha. Ca. "v. Jackson, 4 Burn's Eccle. Law, 248 ; Green v. Proude, 1 Mod. p. 130 cited. 117} Habergham 1;. Vincent, 2 (?) Mo. 515, 5l6. will OF THE COMPLIANCE WITH CONDITIONS. 185 'wlil cannot be exercised by an instrument in the shape of a deed. The case is reported in Dyer (r), and in Leo- nard (.?)• ^ recovery was snfl'ered by Lord Awdley to the use that the recoverors should perform his will ; he ^afterwards, by deed, directed them to stand seised to certain uses, amongst others, to make an estate to him and his wife in tail. And it was determined, after great consideration, that the use was not changed, for this could not be his will to take effect by his death, be- cause it appeared the estate was to he executed in his life time. Lord Awdley's case, therefore, merely proves what has been already stated, that the act must be tes- tamentary, or the execution of the power is void. Where a person is tenant for life, with a power to ap- point the inheritance by will only, and is desijous to sell the fee simple, he may convey to the purchaser for a lorg term depending on his life, and exercise the power in the purchaser's favour by will, and covenant not to re- voke it. The title of course will be incomplete during the vendor's life, as he may choose to revoke the will, and drive the purchaser to his remedy under the cove- nant : so he may revoke the will by a clandestine act, and leave no assets to answer the breach of covenant. But if a purchaser be willing to incur the risk, no objection can be raised to the execution of the power should it ultimately take effect. It is a mistake to call it an exe- cution by deed, for the donee has still full power to re- voke the will : the performance of the covenant cannot be enforced, but damages only can be recovered for a breach of it. Although a will is not a good execution of a power to (r) 166 a, 324 b; pi. 37. (*) 2 Leo. 159, 4 Leo. 166, 210. be 186 OF THE COMPLIANCE WITH CONDITIONS. be executed hy a deed, yet wliere, in the instrument creating the power, words are thrown in of a general comprehensive sense, as " writing," or " instrument," the court will take advantage of them in favour of the intention, and deem a will within the meaning of the power although in vulgar acceptation, the words point to a deed. This was admitted hy Lord Mansfield in Lord Darlington's cage. The leading case on this point is Kibbet and Lee, re- ported by Loid Chief Justice llobart. There a power of revocation in a settlement was required to be exe- cuted '' by writing under his hand and seal, and by him delivered in the presence of three credible witnesses," and then, and from thenceforth, the uses should be void. The donee of the power revoked the settlement by will under his hand and seal, and by him delivered in the presence of four witnesses. Hutton, Justice, held, that the words were to be understood of a deed accord- ing to vulgar speech, and the rather, because in such clauses the last will is especijilly mentioned ; but Hobart, Chief Justice, Warburton, and Winch, Justices, deter- ^ mined that the will was good, because the revocation -j was to be taken liberally, and the execution of it favour- ably ; and they held, that if the words " then, and from thenceforth," were repugnant, they were surplusage, and of no foice '/). This doctrine was carried to its utmost extent in a leading case in the House of Lords (7^). The power was to revoke by any i\:riting under the hand and seal of the [t) Hob. 312 ; S. C. Litt. Rep. 218, Pciice, Cro. Car. 3/6. cited, nom. Hubbard's case ; and (r/) Countess of Roscommon v. see ib, p. Ill }~ and see Tylley v. Fowke, 4 Bro. P. C. 523. donee. OF THE COMPLIANCE WITH CONDITIONS, 187 doneC;, attested bj two or more credible witnesses ; and by the same, or any other deed, to limit new uses. This power was exercised by will in writing under the donee's hand and seal, and attested by the proper number of wit- nesses. And in favour of the execution of the power it was insisted^ that to confine the execution of the po wer^ as if de- signed to be by deed only, by reason of the latter words in the proviso [hy the same, or any other deed~\, and to infer from thence, that the zcriting expressly mentioned in the former part of the power, and referred to even in this latter branch of it, must be only such a writing as was in point of law a deed, would be to make a construction of the power directly contrary to the former part, which enabled her to revoke the old uses hy any writing, as well as to the latter part of it, which enabled her to •appoint new uses by the same [_writing^, and would be to defeat and take away the operation of plain and clear words by implication and inference only. And the Judges delivered their opinion, that this writing was a good execution of the power ; and a decree was made accordingly. The power, therefore, was read as if it had expressed, that new uses might be limited by the same [[writing], or any other deed. Nor will the circumstance of the power being given to two, and the survivor of them, vary the construction in regard to the survivor's right to appoint by will, although the power could not have been executed by will during the joint lives of the parties {x). In treating of the instrument by which a power may be exercised, it is necessary to consider in what cases the power, although in one clause, gives distinct autho- rities. (x) Burnet v. Mann, I Ves. 157. In 188 OF TRE COMPLIANCE WITH CONDITIONS. Iii the case of Fitzgerald and Fauconberge {y), a set- tlement was made by Fowler, and the recital expressed the intention of the settlor to reserve power to himself to alienate the estate, &c. and in the deed was a proviso that the settlor might grant, sell, or demise the estate at his pleasure, or by any deed or writing under his hand and seal, &c. revoke the old uses and declare new ones, and several particular powers were given to him, to the execution of which witnesses, &c, were required. Fow- ler afterwards conveyed the es(?le without observing the solemnities required by the latter part of the first pro- viso. And it was, after great consideration, determined by the Lord Chancellor, the Master of the Rolls, and Reynolds, Chief Baron, that Fowler had under the proviso two distinct powers, one to sell the estate with- out observing any formalities, the other to revoke and declare new uses in the manner required by the latter part of the power. The decree was, after a hearing of four days, confirmed by the House of Lords, upon the opinion of six Judges against Mr, Justice Fortescue (z). The Judges delivered their opinions seriatim (a) y and, notwithstanding the opinion of the majority of the Judges, it was (as appears by the manuscript account of the judgment indorsed on the printed {b) cases) moved to reverse the decree ; but upon the question be- ing put, the motion v/as negatived by 22 against 13, This was certainly a very particular case, but it may be considered an authority to this extent, that where two powers are given in the same clause, both enabling the same act, and the second power is introduced by the dis- {y) Fitzg. 207. {I) See printed casesj Dom. Proc. (a) 3 Bro, P. C. 543. 1730, c. 42. (a) See Journ, Dom, Proc. vol. 18, p. 624, junctive OF THE COMPLIANCE WITH CONDITIONS. 189 junctlve conjunction '^*^ or" ; and the circumstances re- quired to the execution of the power are in the latter part of the proviso, and do not expressly refer to the former part ; the powers are distinct ;, and the first may be exercised by even a simple note in writing unattested. It is evident, that upor principle, the case is much stroniier where the words of the clause authorize distinct acts ; as where the first is to jointure, and the second to revoke the uses. It was one circumstance;, perhaps, in the above case in favour of the construction which the proviso received, that the solemnities preceded what was deemed the second and a distinct power. Tlic case would have been less strong had the solemnities imposed been inserted at the latter end of the entire proviso. And here we msiy notice a case where the proviso was, that the donee might by his own proper handwriting, to be written or indorsed on the indenture, revoke the uses therein, and the court denied that the revocation ought to be by writing on the indenture, and held, that it might be by other v/ritings as well as indorsement (c). There appears, however, to have been considerable dif- ficulty in the wa}' of this decision. But where only one power is given, and it is autho- rized to be executed by different instruments, althouo-h the ceremonies required to the execution are not stated after each instrument, yet they will relate to both instru- ments. This is the case of Dormer and Thurland (d). There a power was given to be executed '^^ by his last will, or any writing purporting to be his last will, un- der his hand and seal, attested by three or more credible witnesses." The power was exercised by a will duly (<:) Lestrange v. Temple, 1 Kcb. (J) 2 P. Wms. 5C6j see Jones v, 357. Clough, 2 Ves. 365. executed 190 OF THE COMPLIANCE WITH CONDITIONS. executed according to the statute of frauds, but it was not scaled. Lord Chancellor King held, that the will was a good one, the power being in the disjunctive ; but a case was referred to the Jude-es of the Kinff's Bench, who determined that the v. ill was void as a charge, for want of being sealed, and consequently that the power was not in the disjunctive. Lord Mansfield, in adverting to this case (e^, said, that ''Lord King was of opinion that it was a good execution of the power, because bj will, and I own I should incline to that opinion." But as we have seen, the question was, whether the will ought not to have been sealed ; for if the power required that solemnity, the power being ex- ecuted by willy could not vary the case. In the case of Ross and Ewerf/^, the case of Dormer and Thurland was recognised and acted upon as an authorit}-. The power in this last case was to appoint " by her last will and testament in writing, or other writing, under hand and seal, to be attested by two or more credible wit- nessesj." And Lord Ilardwicke held, that the latter words in the clause '' under her hand," &c. were refer- able as well to the will as to the other writing. How- ever, in the case of Doc t\ Morgan (^), where the power v/as to appoint '' by deed, or will, signed in the presence of three witnesses," it was not necessary to decide the point, and the cases bearing upon it were not cited; but Lord Kenyon, Chief Justice, in delivering judgment said, that if it were material to decide that point, he should think that an appointment by deed would have been good, though not executed in the presence {e) Cowp. 268, f (/) 3 Atk. 156, {g) 7 Term Rep. lOS. of OF THE COMPLIANCE WITH CONDITIOISS. I9l of three witnesses, and that that number of witnesses only applied to an appointment by will. The distinction be- tween the case^ of Dormer and Thiirlandj and Ross and Ewer, and the case of Doe and jNIorgan, is this : In those cases the zcill was the lirst instrument referred to, and it was a reasonable presumption that the three witnesses were intended to be required to the execution of the will ; but in Doe v. Morgan, the deed was the (first instrument mentioned, and the solemnity of three witnesses is not often imposed on an execution bv deed, and the words in that case were satisfied by referring; to the will which immedlatchj preceded them. It was probably on these grounds that Lord Kenyon deli- vered the obiter opinion alluded to, but the distinction thus attempted to be established, is too refined to be relied upon in practice. In Hardin v, Warner, where the power was to revoke upon tender of a gold ring, or a pair of gloves of Vld. price, or I2d. in money, it was held that the price of 1 2d. extended to the gloves only (/j), on the ground, it seems, that it could not be presumed that a ring is of so small a value as 12d. for it imports value in itself (i)- We may here observe, that where several modes of executing a power are stated, the donee may, in the ab- sence of a direction to the contrary, execute it in which of the ways he please. Thus, where a power was, that the wdfe might make a will in the presence of the husband, unless he refused, or in the presence of J. S., or two such persons as she should appoint, it was determined io be in the wife's election to execute in which of the three ways she chose {k). And yci cer- (A) Noy 79; see 1 Jones 134; (i) Palm. 431. Palm. 429; 2 Roll Rep. 293. (^) Harris v. Bessie, 1 Keb. 348. tainly 192 OF THE COMPLIANCE WITH CONDITIONS. tainlj the power seems to have implied, that the wife should not execute in the presence of J. S., or the other persons, unless her husband refused to permit her to execute in his presence. We shall hereafter sec that a person executin^^ a power may declare, that it shall not take eftect till a certain act is done. Upon this principle a power given to be executed by a single instrument as a deed, may be executed by several assurances, for where the instru- ment is executed with the formalities required by the power, and refers to some future act to be done to complete the execution of the power, as a fine to be levied, neither the deed nor the fine by itself can ope- rate as an appointment ; not the deed, because that would be contrary to the intention of the person exe- cuting it, and certainly not the fine, as that \yould be contrary to the words of the power ; yet taken both together, the power will be duly executed : qua; non valent singula, juncta prosimt. This is the Earl of Lei- cester's case before noticed (/). And on the same prin- ciple it is, that a fine first levied, and then a deed de- claring the uses of it, will be deemed an execution of the power, where the deed is executed in the manner required by the power. This we have seen was,decided in the case of Herring and Brown (m). It is, however^ to be observed, that this case did not decide, that a de- claration of uses at any time after the fine, w ill prevent the forfeiture, and operate as an execution of the power. Indeed, Mr. Justice Withers, who was the only judge of the King's Bench that held the pow er was not de- (/) Fide supra, page 6S. Turton, Cro. CdT.4'/2; and see {m) 5?^/). p. 6q; and see Snape v. 2 Freem. 118. stroycd. OP THE COMPLIANCE WITH CONDITIONS. 193 stroyed, expressly said, that '' the fine and deed should be considered as one conveyance in favour of common assurances, zvhere the distance of time is not apparently long/' Where it is recited in the deed, that the fine was, at the time of levying thereof, intended to enure to the uses expressed, it seems that no party to the deed, nor any one claiming under him, can insist upon the forfeiture, as the deed would operate as an estoppel. But as against strangers, it is Conceived, that it would be left to a jury to say, whether the fine was or was not levied to the uses subsequently declared. This obser- vation has been already made («)• Both in the Earl of Leicester's case, and Herring and Brown, the deed and fine were considered as one assurance, and such was the intention of the parties {o). The principle of these cases cannot be applied to a case where there is first a defective execution of a power, and then a further execution, which is also defective, but which was intended to be a complete and valid exe- cution, although in the tzuo instruments taken con- jointly, the directions of the power are strictly complied with. This was decided in the case of Hawkins and Kemp (p). There the deed executing the power was required to be inrolled, and a deed was accordinglv exe- cuted and duly inrolled, but was a defective execution of the power in other respects ; a further deed was then prepared, by whicii, after reciting that doubts had arisen as to the former execution, the povvcr was dulv <'xecuted. In the body of the last deed, the intention (n) Sup. p. 69. («) See Doe v. Whitehead, 2 Burr. {p) ?, East 410. ;04; Hind -v. Fletcher, Dough 45. o to 19-t OF THE COMPLIANCE 'WITH CONDITIONS. to inrol it, was stated, bnt it never was actually in- rolled. It was insisted that the two deedi together operated as an execution of the power^ but Lord Ellen- borough, in delivering the opinion of the court, said, that in this case tJicre ivas no intent that the two deeds conjointJTj should revoke the u.ses, and that the inroll- ment of the first should be applied (o, or be in any way connected with the second. On the contrary, the last deed in the body of it takes notice of the inrolhnent, as an act to be done in respect of the then executing deed, thereby not only ad^ ertiug to the necessitij of actual iiirollment, but virtuallij disclaiming tlie benefit, (if indeed in any shape such benefit could have been derived from it) of the inrollment of the former in- efficacious deed of revocation and appointment. It was sufficient for the determination of the court, in the preceding case, to shew that the parties did not intend the deeds to operate as one assurance. But it is evident that the court considered it doubtful whether in any shape^ tliey could be so construed. And the better opinion is, that they could not, for the distinction appears to be, that for se\eral instruments to constitute one assurance, such must be the intention of the pai:- ties at the perfecting of the Jirst assurance, and that an ijitention to refer a subsequent assurance to a prior one, where such intention did not exist at the execution of the first assurance, will not be effectual. Thus, in Sey- mour's case (q), where a tenant in tail conveyed by bar- gain and sale, and afterwards levied a fine to the bar- gainee, it was determhied that the fine did not work a discontinuance, because it did not appear that any fine (q) 10 Rep. Q5. was OP THE COMPLIANCE WITH CONDITIONS. 195 •was intended to be levied at the time of making the bargain and sale ; whilst, on the contrary, in Doe i\ Whitehead (r), where there was a covenant in a release from a tenant in tail, to levy a ifine to the use of the re- leasee, the fine arid release were holden to be but one assurance; and that consequently this operated as a discontinuance. The same principles appear to apply to the case under consideration. II. I come now to consider the mode in which the instrument is required to be executed. It has already been observed, that in general >every circumstance re- quired to attend the execution of the instrument, must be dulv com])lied with. But there are few cases i\\ ■J 1 which the courts require any tiling beyond the strict letter of the power ; therefore, where a v/riting under hand and seal is reqiiired, it need not be delivered (^), although writings signed and sealed are usually deli- vered also : so where the deed is required to be diily attested, an attestation by one witness will satisfy the words (?). The mode iw which \\\^ instrument is to be executed is mostly expressed, but sometimes implied : expressed, as that it shall be signed in the presence of two wit- nesses ; implied, as where a pov, er is given to appoint an estate generally by deed or will, without defining the manner in which it is to be executed, or even express- ing that it shall be duly or legally executed, it is implied that the deed or will shall be executed in the (r) 2 Burr, 704. (0 Poulson . Jackson, 2 Bos. and Pull. 239. quently OF THE COMPLIANCE WITH CONDITIONS. 201 quently been considered in practice as an invalid exe- cution of the power, although the instrument is ac- tually signed and sealed by the party who is required to execute it. They who contend that the omission is fatal, insist that evidence cannot be received to establish the fact of signature, and that a jury cannot presume that the deed was signed in the presence of the witnesses, when from the attestation itself it appears to have been only sealed and delivered in their presence. And that it might be presumed that the deed was only sealed and delivered in the presence of the witnesses, and was afterwards signed in their absence. The construction vvhich the statute of frauds has re- ceived, appears to bear strongly on this point. By that statute it is enacted, that all devises shall be in writing, and signed by the testator, and shall be attested and subscribed in the presence of the said devisor, by three or four credible witnesses. These words are very for- cible, for as the attestation and subscription are required to be made by the witnesses in the presence of the de- visor, it was clearly intended that the will should be signed by him in their presence, and the witnesses are expressly required to subscribe in the presence of the testator. It has, however, been decided, first, that the devisor need not sign in the presence of the witnesses {h); secondly, that the subscription of the witnesses to an attestation, which only contains the words '' sealed and delivered by," &c. is sufficient (/) ; and, thirdly, it has (/') Ellis V. Smith, 1 Ves.jun. 11 ; (J) Trimmer v. Jackson, 4 Bum's Addy V. Grix, 8 Ves. jun. 504 ; Eccl. Law, 130. and see Dormer v. Thurland, 2 P. Wms. 505, m ^02 OF THE COMPLIANCE WITH CONDITIONS. in iliree dilTerent cases (y^) been holden, that although the fact of the subscription of the witnesses^, in the pre- sence of the teslator, is omiited in the attestation; yet, if the witnesses be dead^ and their hands proved in common form, it is evidence to be left to a jury, of a compliance with all the circumstances. And yet it was contended, that the hands of the witnesses could only stand to the facts they had subscribed to. Verdicts w ere given in favour of the Avills ; and, indeed, it seems clear, that in every case of this nature, free from any particular suspicion, a jury would find the solem- nities adhered to. From these decisions it may perhaps be inferred, that the subscription by the witnesses, of an attestation in which the word signed is omitted, is a sufficient com- pliance with the power. And that even should it be determined, that the donee of the power ought to have signed in the presence of the witnesses, yet evidence may be received of the signature having been made in their presence ; and if the witnesses are dead, and the transaction fair, a jury would be directed to find in fa- Tour of the instrument having been duly executed. A very strong additional circun^stance in support of such a verdict would be the fact, that nearly all deeds have no other attestation than '' scaled and delivered;" aiid that the omission of the word " signed" is in every case clearly owing to inadvertence, and the frequent use of an attestation containing the words ^' sealed and de- livered" only. Since the above observations were written, a case {h) Hands v. James, Com. 531 ; Croft i;. Pawlet, 2 Stra. 1109} Brice v. Smith, Willes 1. ^ came OF THE COMPLIANCE WITH CONDITIONS. 203 oame before Lord Eldon, in which the deed executing the power was required to be signed; but it is not stated that the witnesses were required to attest the sig- nature ( i ). Ill the hodu of the deed actuaUi) executed^ it was stated to he signed iy the donee in the jjresence of the ivitnesses, according to the 'poucer. In the attestation, however;, the word " signed" was omitted. Lord El- don saidj tiiat upon the question, whether after execu- tion it ought to be taken that he did sign in the pre- sence of the witnesses attesting the sealing and delivery, there would be a miscarriage in a judge directing a jury, if that fact was founds not to presume that the deed was signed in the presence of the same witnesses as it professed to be. That attestation, therefore^ he added, was good (/). And this, it is apprehended, may be dpne even after the death of the person executing the power. It does not seem open to the objection taken in the case of Hawkins and Kemp, to the inrolment of the deed after the death of Hawkins (tw), for the signature was duly made; and if there was any error, it was merely in the form of the attestation, which perhaps in strictness need not have been indorsed. I have seen a title, where a power to three persons was required to be executed by deed, signed, sealed, and delivered by the parties, in the presence of, and attested by two witnesses. The attestation on the deed executing the power contained (/) M'Queen V. Farquhar, 11 Ves, (m) Fide infra. Jan. 467. (1) None of the points of law in the case appear in tliC RegisterV book. See Lib. B. 1S04, fo. iop.5. 204 OF THE COMPLIANCE WITH CONDITIONS. the words scaled and delivered, &c. only. The litlc was objected to, by reason of the word " signed" hav- ing been omitted in the attestation. The late Mr. Hol- liday was the surviving witness. Tw^o of the parties who executed the power were dead ; and in order to obviate the objection, a bill was filed in Chancery, in HiL T. 1800, to perpetuate his testimony as to the sig- nature of the deed, which was actually signed in the presence of him and the other witness. The title ha» been since frequently accepted. It is usual in powers to say, that they may be executed in the presence of a given number of witnesses, or more, but this is unnecessary, as no objection can be raised to the dee^ executing the power, although it is attested by a greater number of witnesses than was in strictness necessary. It is clear that where an instrument executing a power is required to be executed in the presence of two or more v/ituesses, and nothing is said about their attest- ing the execution, the power will be duly executed, al- though the witnesses do not subscribe the attestation in- dorsed, or some of them do, and others do not. This was decided in the case of Sayle and Freeland(w). And by analogy to the decisions upon the statute of frauds, it should seem that in the absence of an express requisition, that the witnesses shall all attest the instru- ment at the same time^ they may attest it at different times, (o). (n) 2 Ventr. 355; 2 Ch. Rep, 110; 1 Eq. Ca. Abr. 345. (o) Cook v. Parsons, Free. Cha. 184 j Lodge t;. Jennings, Gilb. Eq. Rep. 255 ; Jones v. Lake, 2 Atk. 1/6 n. ; Grayson v. Atkin- son, 2 Ves. 454 J Ellis v. Smith, 1 Ves. jun. 11 5 See 3 Cha. Ca. 82, 90. Where OF THE COMPLIANCE WITH CONDITIONS. ^05 Where trusts are raised with a power of revocation in the settlor, the settlement will not be defeated by the mere act of the trustee re-conveying to the settlor ; to effectuate a revocation, the terms of the pov. er must be complied with, although the settlement was merely vo- luntary (/>). It is here material to observe, that, generally speak- ing, every formality required to the execution of the power, must be perfected in the life-time of the donee of the power, although it is external, or dehors the deed. Thus, in Hawkins v. Kemp, where the deed was required by the power to be enrolled, the deed in the body of it expressed that it was intended to be inrolled^ but ii wa'a notinrolled till after his death. It was insisted that the inrollment would make the deed good by relation, and that there was nothing personal in it ; but the court, in an elaborate judgment, held, that the inrollment could not be made against the consent of the donee cf the power, and must of necessity be made during his life, as it was one of the circumstances required to the due exe- cution of the power. The Lord Chief Justice observed, that the question was not so properly a question of rela- tion, as whether the inrollmeiit could have any effect without the donee's authority, which necessarily* deter- mined w ith his life (^). III. I proceed to consider the conditions required not relating to the instrument. Where a man has, under distinct settlements, distinct {p) Ellison t;. Ellison, 6 Ves. jun. 65Q. (q) 3 East 410 i and see Digges's case, 1 Rep. 173 ; vide sitprap. \Q3. powers 206 OF THE COMPLIANCE WITH CONDITIONS* powers to appoint new uses, or to revoke the old usc?^ of two distinct estates, on tender upon each appoint- ment or revocation of any given sum of money, as 5s. and iic tender one sum of 5s, only, and then exercise both powers, the execution of both will be deemed void, although the two estates were settled to the same uses, and the tenders were to be made to the same per- sons (;■) ; but it seems to have been thought, that where the powers require the performance of any other act tlian the payment of money, the performance of one single act would be sufficient (5). It is evident that no general rule can be laid down on this subject. If, in- deed, a man have several distinct powers of revocation over diflerent estates, upon riding to York, the per- forming the journey once may well extend to all the powers. But if the conditions were, that he should provide a gown for some poor woman, several distinct gifts would evidently be requisite; this, however, it may be said, is money's worth. Yv here a tender of a sum of money is required to the ■valid execution of a power, it is highly desirable that the fact of the tender should be stated in the deed exe- cuting the power, and that the person to whom the ten- der is made should acknowledge it by indorsement on the deed; for although the fact may be proved by parol (r) Gresham's case (1 ), Dy. 372 a. pi. 9, 1 Leon. 89, 9 Rep, IDS b. Mo. 261. (5) See Dy. 372 b. (1) This case is differently stated in Moore. It is there stated that each of the powers required a tender of 10s. and that the donee actu- ally tendered 20s. but the doubt was, whether a tender of the two suras in one lentke sum would do. Dyer, Leonard, and Coke, however, state the case as in the text. evidence. OP THE COMPLIANCE WITH CONDITIONS. 207 evidence, yet in some cases it miglit be difficult to establish it to the satisfaction of a jury (t). The prac- tice, however, of requiring money to be tendered, is now become obsolete, but the observation applies with equal force to every other external circumstance required to the execution of a power. Although money is required to be tendered at a 'par- ticular place, yet a tender in the absence of the person to whom it ought to be made, and without notice having been given to him of the time when the tender would be made is void («). But where a certain place and day is limited for the tender, the person to whom it is to be made, must attend at his peril (i). Where no time is limited, notice ought to be given to the person by whom the tender is to be received, that it will be made at such a time, and he should be required to be there io receive it ; and then, if at the time appoiiited a tender be made, although he absent himself, it is a good performance of the proviso (?/). But although the tender is required to be made at a given place, yet it seems that a tender at any other place, and an acceptance of it by the person to ^vhom it is to be made, will be valid even at law {z), unless the tender is to be made to a stranger, and not to a privy to the deed ; in which case it seems that the strict letter of the condition must be complied with [a). Where a tender is required to be made to a man or his heirs, if he die, leaving an infant heir, the tender (0 See Arundel v. Philpot, 3 Cha. (y) 8 Rep. 92 b. Ca. 70, 106 cited,2Vern.69. (s) Thorne v. Newman, 2 Cha, {u) Lady Burg's case. Mo. 602. Rpp. 37; and see S Cha. Ca. 63, (a-) Burrough's case, Dy.£354, a IQS. pi. 32 ; and see 3 Cha. Ca. 67. (a) See 3 Cba. Ca. 6s. mav 208 OF THE COMPLIANCE WITH CONDITIONS. may be made to the infant, of wliatever age he may be. And although the infant be a female, and the wife of the deceased be ensient at her husband's death, and should afterwards be delivered of a son, yet that will not invalidate the prior tender to the daughter, who was heir pro tempore. Where the tender is required to be made to a man or his assigns, and the estate is limited to him and his heirs, the heir is the proper person to receive the tender. These three points appear to have been decided by Allen's case in Curia war dor um, in the n\\i of Jac. 1.(^0 Where the consent of any person is required to the execution of the pov/er, that, like every other condition, must be strictly complied with(c). And if the person whose consent is essential, die be- fore the execution of the power, and without having assented, the power is gone, although his death was the act of God(c/). So where the consent of several per- sons is required, the death of one of them destroys the power, as the consent of the survivors will not satisfy the words of the power(e). But the inten- tion of the parties will be observed, however in- formally it be expressed. Therefore, where a power of revocation was given in a marriage settlement to two persons, with the consent of their wives, if they or either of them were then living, a revocation, with the consent of the surviving wife, was held sufficient, al- (i) Ley 57. (e) Atwaters t. Birt, Cro. Eliz. (c) Simpson v. Hoinsby, Prec. 856 j S. C. Noy 38, nom. Al- Cha. 452. waters v. Bird } vide supra, ch, {cl) Dannev. Annas, Dy.2l9, pi. S; 3, sect. 2. and see Mansell v. Mansell, Wilra. 36. though OP THE COMPLIANCE WITH CONDITIONS. 209 though the power did not expressly say that the con- sent of the survivor should be valid (/). And in one case, where a father by his will gave a power of join- turing to an improvident son, with the consent of his trustees, both of whom were of an advanced age, the court appears to have been of opinion, that in favour of the intention, the consent of the heirs of the trustees would be valid ; and that the will was to be read as if he said, '' with the consent of the trustees and their heirs;" and as the persons were several, and the con- sent was personal, they thought the expression would be equivalent to sayitjg, " With consent of both while they live, but when one die, that consent shall devolve upon his heir : the heir of the dead trustee shall consent, as well as the surviving trustee : one may abuse the power ; I will supply the loss of one by his heirs, and the loss of both by the heirs of both («•)." It was not, however, necessary to decide either of these points. In Lord Mordant v. the Earl of Peferborough {h), the Earl had a power of revocation, with the consent of the Countess in writing. She was a party to the deeil, which was necessary in order to save her jointure, and she scaled it; but the conveyance was not said to be by her assent, nor was any mention made of it in any other clause ; and the court qonceivcd this not to be a sufficient revocation. The paint, however, did not call for a decision, but this case enforces the neces- sity of stating accurately in the deed executing the (/) Savil T. Sterling, Shep.Tocch. and see Hewit -u. Hewlt, Ambl. 526; S. C. 2 Ro. 1/3, nom. 50S. Gardner v. Savill. (A) 3 Xeb. 305, (g) Mansell v. Mansell, WUm. 36; P power. 210 OF THE COxMPLIANCE WITH CONDITIONS. pov.er, the compliance with every circumstance imposed on the execution of it. Where a person's consent is required to the execution of a power, he cannot delegate the confidence reposed in him. This was one of the points in the case of Hawkins and Kemp(z). The power was to be exe- cuted with the consent of several persons. One of these persons being abroad, gave a letter of attorney to the donee of the power, to consent to his own revocation of the power. And this pait of the case was aban- doned, as the court intimated a decided opinion against it, on the ground that it would operate as a total destruc- tion of the check intended by requiring the personal approbation of the trustees. It appears scarcely necessary to observe, that when a trustee is authorized to consent to a revocation, he will not be guilty of a breach of trust by giving his con- sent accordingly, unless he act fraudently (k) ; nor will a court of equity eontroul his discretion. Thus where in a marriage settlement it was provided, that if the husband, his heirs, executors, or administrators, with approbation and good liking of two trustees, should settle lands of 801. per annum to the same uses, then that settlement should be void : the eldest son and heir applied to the trustees to consent, that on settlement of an estate of equal value, the former should be void ; the trustees would not consent; without which the re- vocation w ould not be good in point of law : a bill was brought to compel their consent, and Lord Hardwicke held that it could not be done, and that a bill of that (i) 3 East, 410. {i) Reresby v. Newland, 2 P. Wms. 93. kind OF THE COMPLIANCE WITH CONDITIONS. 211 kind against trustees who had a discretionary power to consent or not was nevei' admitted (/). We may close these observations upon consent., with the case of Hutcheson v. Hammond (m), where a tes- tatrix gave a fund to A for life, and after his decease to his daughter, and willed that if she in the life-time of her father should marry without his consent, then he should have a power to appoint the fund to whom he pleased ; the daughter married in her father's life-time with his consent, and it was determined that by this one consent the power was wholly gone. We have still to consider those cases where the con- ditions imposed, although hlvC the former not- relating to the instrument, are yet in many respects distinguish- able from them. I allude to po\ytrs to be exercised only in the event of another estate proving deiici;f-.it to answer certain charges, or another estate being first settled to the same uses, or the like. And as these con- ditions consist not merely of form, but are of the very essence of the gift or reservation, they jjerhaps more than any other require a strictly literal performance. Therefore, where a power was given to truL-tees to sell for the purpose of raising as much mo^ey, as the personal estate should prove dehcient in paying debts, it was decided by Jones, Croke, and Barkeley, Justices, that the condition was a precedent condition, and that the power would not authorize a sale unless there was an actual deficiency, and then so much only of the estate could be sold as was sufficient for the payment of the debts, and consequently that the amount of the debts, (/) Erereton v. Brereton, 2 Ves. (m) 3 Bro. C. C. 128. S; cited. p 2 and 212 OF THE COMPLIANCE WITH CONDITIONS. snd the value of the personal estate ought to be shown, so that the court niii?;ht ju(li\;e whether the condition was performed or notin). Great dilHculty frequently arises ill practice from powers like this, as it is difificult to sa- tisfy a purchaser of the deficiency, and the actual extent of it. It should, therefore, in these cases invariably be provided, that the power shall quoad a purchaser be '.veil executed, altliougli there be no deficiency, and that he shall not he bound to enquire into or ascertain whether there actually be any deficiency (o). So where a power of sale was given to trustees, so as that {p) the money was paid them, and laid out in other lands to the like uses, it was held that the power was not well executed, as the money was not paid to the trustees, and laid out accordingly (r/). The court con- sidered that the trustees had only a power of sale, on condition of reinvesting the money in the purchase of nnother estate. In this case, however, the purchaser's agent was privy to a fraudulent disposition of the pur- <:hase-money, and knew tliat it was not intended to lay '>nt the purchase-money accordiHg to the proviso. ^Vhere the transaction is fair, and a power is given by Hie settlement to the trustees, to give receipts for the ]3urchase-money, which are declared to be discharges : it seems clear that the purchaser could not be affected (n) Dike -v. Ricks, Cio. Cnr. 335, Wm. Jones, 327, 1 R().Ab;-.32C>, pi. 9, 3 Yin. Abr. A\Q, pi. 9 j :uid sec Pophani -u.Hobert, 1 Cha. Ca. 280 ; and Culpepper v. Aston, 2 Cha. Ca. 115, 221, as i:i plained. Treat. Parch. 2d Edit, p 343; and see Bowman y. Ma- thews, For. Excb. Rep. l03. {<)) See Treat. Parch. 2d Edit. p. 341, (/)) See Lord Chancellor Bacon's argument upon ita quod, or so that in powers. Sir John Stan- hope's case, Bac. Law Tracts, 233. (y) Doe V. Martin, 4 T. Rep. 39. by OF THE COMPLIANCF, WITH CONDITIONS. 213 by a iiiisapplication of the money, after having obtain- ed a proper receipt for it, from the trustees. The op- posite rule would in effect strike this chiuse out of tii.- deed. Agaiuj where a power of revocation was given with the consent of trustees, so that at or before the revoca- tion other estates were assured of equal or better value- to the like uses^ it w as considered clear, that if an equi- table estate had been conveyed, tlie power would have been badly executed at laxv, but whether in equity war^^ doubted; and it was also thought that a purchaser of the settled estates would have been bound to have shewn the value of the substituted estates (?'). And in a case where a power of revocation was given, so as at the time of such revocation he settled other lands free from incumbrances, of as good or bettc: yearly value. Lord Hardwicke was clearly of opinior. that the power of revocation was not well executed, a ; the substituted estate was not of equal value, and wiis charged with an incumbrance [s). These cases should not be dismissed without an ob- servation on the impolicy of the settlements upon whici; they arose ; they tend only to expense and trouble \:. practice, as a purchaser could not in general be compeile.i to complete his purchase without ihe sanction of a de- cree in equity, and there are few cases in which h? could be advised to accept the title without a decrc- It would be much better wholly to omit a power of s» = in a settlement than to fetter its operation by requisitioi: like these. The usual power of sale is exactly adapted (r) Cox V. Chamberlain, 4 Ves. (s) Burgoigne ». Fox, 1 Atk. 5; J. jun. 631. P 3 to 214 OF THE COMPLIANCE WITH CONDITIONS. to efrcctuate the intention of the parties : the trustees arc authorized, with the proper consents, to sell the estate absolutely, and are directed to lay out the money in the purchase of other estates; but this is not made a condition aflecting the execution of the power, but on the contrary, the trustees are authorized to give receipts to the purchaser, which it is declared shall exonerate him from seeing to the application of the money ; and they are empowered to lay out the money at interest, until invested in the purch:ise of an esfate. This plan has been adopted from a conviction of the mischievous tendency of other modes. SEc*r. [ 215 ] SECTION IV. OF THE TIME AT WHICH A POV.ER MAV BE EXECUTED, AND OF PARTIAL EXECUTIONS. XT comes in order to consider at what time powers may be executed, and in what cases partial and repeated executions may be made. And, first, it may be remarked, that although a power is given generally, yet the courts, or at least equity, will not permit it to be exercised before the time in which it was the intention of the parties that it should be executed. Thus, where portions for younger chil- dren were to be raised at such times as the father should direct, and he having a daughter fourteen years of age, directed the trustees to raise the portion iwmecUatelij. The daughter died under age, and the father claimed her portion as administrator. But Lord Thurlow said, *' The meaning of a charge for children is, that it shall take place when it shall be wanted. It is contrary to the nature of such a charge to have it raised before that time. And although the power is in this case to raise it when the parent shall think proper, yet that is only to enable him to raise it in his own life if it should be ne- cessary. It would have been very proper to do so upon the daughter's marriage, or for several other purposes, hut this is against the nature of the po'a:er." And the bill was dismissed (r). (r) Lord Hinchinbroke v. Seymour, 1 Bro. C. C. 395 j and see 1 1 Ves. jun. 479 S. C. cited by Lord Eldon, who said the daughter was consumptive. p4 If 216 AT WHAT TIME A POWER MAY BE EXECUTED. If a power be given to a person to make a lease, &c. >ix months, or any other given time before his death, the power may be executed at any time, although it be not six months before his death, but a month, a week, or a day, for the duration of his life cannot be known [s). So where a power was given by a settlement to a mar- ried woman, in case of the death of her husband in her life time, to cliarge the estate with a sum of money, and she executed the power in the life time of her husband, and afterwards survived him ; it was first determined by the Court of King's Bench, and then by the Court of Chancery, that the power was well executed (r). This case is an authority that where a power is authorized to "be executed in a contingent event, it may be executed be- fore the happening of the contingency. The words of the power seemed to make the happening of the contin- gency a precedent condition. It runs thus : that ii the said J. S. (the husband) shall happen to die, and M. (his wife) shall him survive, and there shall be no issue of the marriage living at the death of M., then and in such case it shall be lawful for h^r at any time or times during her life, by -duy deed, &c. to charge the estate. Now it was of necessity that she should be al- lowed to execute the power after the death of her hus- band, although there was issue, but no such necessity existed during his life. From this decision it would seem to follow, that a power given to tlje survivor of two persons may be executed in the life time of both. However, in a case before Lord Thurlow (?i) where a {s) Harris v. Graham, 2 Ro. Abr. Abr. 42", pi. 8, nom. Sclaterii. 247, pi. 6. Travell. (/) Countess ofSutherlandf. North- (w) Mac Adam -u. Logan, 3 Bro. more, 1 Dick. 56, S. C. 3 Vin. C. C. 310, vide supra. power AT WHAT TIME A POWER MAY BE EXECUTED. 217 power was given to the survivor of tv>'0 persons, and they executed a joint appointment^ he held it bad ; but itseerus still open to coiiterid;, that as tlie power may be execultd bv each separately in the life time of the other, a joint appointment ought to be considered as the separate appointment of the one who survives, and consequently as a valid execution of the power. Lady Sutherland's case was not cited in the case before Lord Thurlow. Where, previously to marriage, an agreement is made generally that the woman may dispose of her property, she cannot after the agreement, and before the marriage, make a binding will, unless expressly authorized to do so (x). Sir Edw^ard Coke lays it down as clear, that where there is a devise to A for life, and that after his decease the estate shall be sold, the sale cannot be made during A's life, but must wait till his decease. Mr. Hargrave justly observes, that this is a doubtful point upon the authorities (3/). There was a case before Lord Hard- wicke in which he expressed an opinion on this question which appears to luive been overlooked. I allude to UvedaJe 7?. Uvedale (z), where the devise was to the wife for life, and after her death the testator willed that the same should be sold, and Lord Hardwicke said that the words after her decease were not put in to postpone the sale. However, in a late case before the Court of Exchequer (in which I have reason to think the case of (x) Hodsden -0. Lloyd, 2 Bro. C. C. {y) See note (2) to Co. Litt. 1 13 a. 534 J Doe V. Staple, 2 Term (s) 3 Atk. ll/j and see Anony- Rep. 684. The marginal ab- mous, 2 Leo. 220, pi. 276. stract of the case in Erovn is in- accurate. Uvedale 518 AT -n HAT TIME A TOWER MAY BE EXECUTED. Uvedale and Uvedale was cited) where the devise was to A for life, and after her decease to trustees to sell and pay the moncv amongst the children then living, the court held that a sale could not be made till after the wife's decease («), Where the parties beneficially en- titled are ad ult, and the fee is devised, a sale may of course be made with their concurrence, during the life of the tenant for life. The purchaser would obtain the le^'al estate, and the ccstnis que Inist m ould be bound by the sale. But even if tho parties are adult, yet where a power only is given, the title cannot be accepted unless the person in whom the fee is vested till appoint- ment will conve}^ the estate to the purchaser, for until the death of the tenant for life, the power, according to the case in the Exchequer, does not arise^ and conse- quently cannot till then be executed. Sometimes a power is given to a person on default, or failure of his issue, and it becomes doubtful at what time the issue must fail in order to give effect to the power. In Holt ?•. Burleigh {b}, in a strict settlement, a power vras given to the v/ife to sell the estate if she should survive her husband, 7iot having issue, or zvith- out issue of thcii^ two bodies. The husband died leav- ing issue, and that issue died without leaving issue in the life time of the wife. And it was determined, that the wife might sell the land, although it was insisted that the husband leaving issue, the wife did not survive her husband not having issue, or without issue, and, there- fore, the power never took effect. In a more recent case, w here by a strict settlement a general power of appointment was given to the wife for want of issue, the (fi) Anon. Exchcq. 1806, {I) Pre. Cha. 293, S. C. 3 Vcrn. 651. wife AT WHAT TIME A POWER MAY BE EXECUTED. 219 wife executed the power, and left a son living at her death ; and it was decided, tiiat the appointment was void ^c). The cases, therefore, seem to establish this rule, that the po\^ or will lal^e effect if there should be no issue living at the decease of the parent to whom the power is given. It frequently happens, that powers are given to par- ties to be exercised by them when in the actual possession of the estate. In some cases it would be desirable that the power should be given so as to enable the party to execute it, although his remainder has not fallen into possession, and, at the same time, so as not to accelerate the charge under the power (d). Sometimes when a per- son in remainder has been desirous to execute his power as if in possession, it has been attempted to put the party in a situation to do so, by accelerating the possession of his estate. Mr. Butler observes, that, in one case, it is clear that this will answer the object intended, that is, where A is tenant for life, with the immediate re- mainder (without any limitation to trustees) to B for life, with a power for B to jointure when in possession. Here, if A surrenders to B, B is to all purposes in pos- session of they estate, and, therefore, in a situation to exercise his powers. But, he adds, that where there is an intermediate estate this never can be relied on. If it is expressed in the deed, as it generally is, that it shall be lawful for the party to exercise the power when in possession under the limitations, and there is a limitation to trustees to preserve the contingent remainders, the first tenant for life can in no wise put the second tenant for life in possession of the estate but by an actual con- (c) Doe v. Denny, cited in 2Wils. () Sir Edward Clere's case, 6 (a) Countess of Roscommon v. Rep. 17 b. S. C. Mo. 476, nom. Fowke, 4 Bro. P. C. 523. Worme v. Webster, ib. 56/, (/) Fitzgerald v. Fauconberge, nom. Parker v. Sir Edward Clerc, Fitzg. 207. S. C. affirmed upon error; Cro. (s) Udal v. Udal, Al, 81. Eliz. 877; Cro. Jac. 31 ; Hus- sey's case cited, ib, 3 and see 12 Mod. 4t)9. Q only ^26 WHAT AMOUNTS TO AN only as an exorcise of it, and all incident circumstance* prescribed by tbe proviso are observed, the act shall ac- cordingly be deemed an execution of the power alt.houc;li no reference whatever is made to it, and there is not any express signification of the intent to dcteruiine and dis- annul the estates which will be defeated by the execu- tion of it(/) ; quia non referl an qiu's intentionnii suam dcclarct vcrbi'S, an i^bus ipsis, vtifaciis. And although the revocation is required to be made In express zcords, yet an instrument disposing of the estate to different uses, although not referring to the power, or expressly declaring an intention to revoke, will operate as a revocation (v) (1). This decision appears to be founded upon solid principles^ for the words of the in- strument which operate the revocation are express "ucorchj, and do by law amount in themselves to a revocation. But although a man may execute a power without reciting or taking the slightest notice of it, yet it is ne- cessary that he should mention the estate or interest which he disposes of : he must do such an act as shews that it) Scrope's case, JO Rep. 343 b; Cha. Ca. 44 ; Fitzgerald ^<.Fau- 2 Ro. Abr. 262 (C) pi. 1 ; and conberge, Fitzg, 107; Roscom- $ee Fiampton -z;. Frampton, as it mon -u. »Fowke, 4 Bro. P. C. is said accordingly 6 Rep. 144 b. 523 j and sec George v. Lousley, see the case in Mo. /^^ ; Snape 8 East, 13. •u. Turlon, Cro. Car. 472 ; D(g («) Guy r. Dormer, Raym. 295; •y. Deg, 2 P. Wms. -105, Sel. and see 3 Cha. Ca. 91. (1) Mr. Powell, Pow. p. 113, says, that this point happened not to be material, as the event of this case would have been the same whether the revocation had been good or not. The case, however, appears to have depended on this point solely. There was a term of five years whicb the jury found had expired. Perhaps Mr, P. was led to think that this rcfer»se of to diluTcnt persons, and after giving some pecuniary legacies, shegave '•' all ihe rest of her goods, chattels, estates, and estate whatsoever undisposed of,'" unto A, his heirs, executors, admi- nistrators, and assigns. It was declared bv the decree, that as to this sum of 1000/. the said testalris. having made no particular appointment thereof, the same will belong to the defendant hijr executor. Reg. Lib. A. 1753, fjl, 252. Q 2 hii ^28 tTHAT AMOUNTS TO AN his real and personal estates, and lias no real estate, there the estate subjected to liis appointment will pass [z). But slight circumstances will not amount to a sufficient indication of the intention : vvhcre the power is given to the husband after the dcatli of his wife, and he makes a general disposition to take eft'ect after his wife's death, that will not of itself be deemed evidence of his intention to execute the power (r/) : if the subject of the power be three per cent, consols, and the testator give some three per cent, consols as pecuniary legacies, the stock subject to the power will not, on tliat ground alone, pass (h) : the instrument being executed in the manner required by the power goes for nothing ( c) : nor can the court act on the fact of there not being sufficient to pay legacies given by the will without the property over which the testator had a power of disposilion (d): nei- ther can parol evidence be received of i\\e testator's in- tention to exercise his power (e). So, where a man having several powers refers to some and executes them formally, that is an argument against any other power being executed by general comprehen- (7.) Standenu, Standen, 2Ves.jun. 5SC), affirmed in Dom. Proc. nom. Stauden 'y. Macnab, OBro. P. C. by Toml. ipS (1 ); See Deg •y. Earl of Macclesfield, Sel. Cha. Ca. 44. (.o) Andrews v. Emraott, 2 Bro. C C. 297 '} Bennet v. Aburrow, uhi sup. (Ji) Nannock v. Horton, uhi sup. {c) Andrews vith monies to be paid after her decease. Lord Hardwicke appears to have considered that the instrument might have operated both as an ap- pointment of the remainder and as a release of her estate, so as to create a base fee, the grantee being in possession ; but he ruled otherwisfe, as the grant was intended only to take elTect after her deaths and not to pass auy estate in possession. SECTv [ 243 ] SECTION VII. OP THE QUALIFICATIONS WHICH MAY BE ANNEXED TO THE EXECUTION OF POWERS BY THE DONEES THEREOF. A DONEE of a po'vver may limit the event upon which the deed executing the power shall take place. There- fore, if a power be given to be executed hy deed, in- rolled in any court, the donee may direct the deed exe- cuting the power to he inroiled in some particular court, and until it is so inroiled, the execution of the power will be imperfect (A). So, if he declare that when A doth pay 10s. the settlement shall be revoked, there it is not singly the deed nor payment, but both that com- plete the revocation (/) . And in like manner he may covenant to levy a fine, or suiler a recovery, with an intent to revoke the power ; and alfhough neither of them is necessary, yet the power will not be well exe- cuted till the fine is levied, or the recovery is surier- «d (k), Hobart, Chief Justice, even laid it down, that a verbal declaration that the execution of the power shall not take etfect till a particular time, is good(/); whichj it should seem, may be supportrtd on the same principle that deeds in general may be deli- vered as escrows. Under a power of appointment, the donee may either appoint absolutely, or may reserve a power of revoca- tion, although not expressly authorized to do so by the (A) Digges's case, I Rep. 173. (k) Earl of Leicester's case, 1 (j) 3 Keb. 511 } Raym. 239. Ventr. 278. (/) Kibbet v. Lee, Hob. 312, R 2 deed S44 OF THE RESERVATION Of deed creating the power {m), and such a power may he reserved toties quoties {n), and the new power of revo- cation need not be attended with the same solemnities as tho iirst power (o). And v/here a power is given to two persons, or the survivor of tliew, with or without power of revoca- tion, they may execute a joint appointment, and reserve a power to tlie survivor to revoke. The argument against the validity of the power of revocation to the survivor was, that Hiq parlies could not intend that a joint appointment should be defeated by any but a joint revocation (/)). But it seems that where a power is given to two jointly, and not to the survivor of them, they cannot upon a joint appointment reserve a power of revocation to the survivor. Upon this principle. Lord Redesdale held, tliat under a power to husband and wife, a will by the husband, indorsed by the wife after his death, expressive of her approbation of the disposition thereby made, and her confirmation of it, would not do : and he said that being a will revocable by the husband at any time, even if the wife had at the moment sub- scribed a ratification of it, he could not conceive it to be an appointment under tbe power, because it would reserve a povver of revocation to one of the two parties^ as the husband might revoke his will, but his wife could not(^). (/n ) Adams v. Adams, Cowp. 65 1 j see Becket's case infra, (ji) Lady Hasting'scase, 3 Keb.7. (o) Winstandley's case, 3 Keb. 7, cited; and see S. C. cUed, 2 Kcb. 270. (/)) Brndenell v. Elwcs, 1 Eijst 442, 7 Ves.jun. 38a. (j) Bushell V. Biishell, 1 Rep. T. Redesdale, 90. POWERS OP REVOCATION, 245 A will is always revocable^ and, therefore^ where the power is executed by will, au express power of re- vocation need not be reserved (r). But where the power is executed by deed, unless a power of revocation is reserved in the deed, the appointment cannot be re- voked (s) ; no, not even if the original power expressly authorize the donee in the most unlimited terms, to ap- point and to revoke his appointments frdm time to time ; as the law will not endure a prospective power like this, but on every execution, a new power of revocation must be reserved. This was solemnly decided by Lord Chancellor Harcourt, and all the Judges of England (0, and finally in the House of Lords. The Court of King's Bench, upon a case referred to them by the Lord Chan- cellor, held the second execution void. Lord Harcourt decreed accordingly ; and upon an appeal to the House of Lords, the decree was affirmed by the unanimous ^opinion of the Judges of the Court of Common Pleas and Court of Exchequer. This decision appears to have owed its foundation to the anxiety of the courts, to restrain the reservation of such powers, and to the assimilation of povrers to conditions at common law, which they do not resemble. It is impossible to frame any objection upon principle, to a general power of revocation in the first deed, em- bracing all future executions : the power is only tanta- niount to what may still be done, by repeatedly reserv- ing new powers of revocation. (r) Vide infra, sect. 8. {t) Hele <«. Bond, Prec. Cha.4;4 ; (f) Hatcher v. Curtis, 2 Freem. l Eq. Ca. Abr. 342 ; S. C, MS. ^^* See a fuller note of this case than any in print, App. No. 3. R 3 In 246 OF THE RESERVATION OF In a case before Lord Hardwicke, a point nearl y similar arose. By a settlement, powers of appointment were given to a woman ; and at the end of the settlement, it was de- clared that every appointment made by her by virtue of the powers in the deed^ might from time to time be revoked, and a new appointment made. Slie made an appointment, without reserving a power of revoca- tion, and then executed another appointment. It was insisted, on the authority of Hele and Bond, that the second appointment was void. There was not, how- ever, any occasion to give a deter u'.inate opinion on this point ; but Lord Hardwicke, in giving judgment, said, that he was very doubtful whether the case of Hele and Bond would govern the present, though he inclined at first that it would. In the present case, he said, there were two powers in the very creation, a power to appoint uses, and a power to revoke uses. Now the power to appoint uses was executed by the first deed, but the power of revocation was not exer cuted till afterwards ; then the question would be, w|iether both might not be executed once, as they seemed to be distinct and separate powers. In Hele and Bond, he added, the power of revocation was exe- cuted J and the doubt w as, whether the uses could be revoked totics quoties, without reserving a power of re- vocation (w). The very same point arose in a case be- fore the determination of Hele and Bond, but it was not necessary to decide it. The case was not referred to in Langley and Brown. The reporter says, " it was touched whether the uses limited according to th\i (u) Langley v. Brown, 2 Atk. J 95, po^ver POWERS OP REVOCATION. 247 power were revocable by the proviso, and Mainard said it might be a question." (or). Now it appears to be quite impossible to support this distinction. Lord Hardwicke distinguished the case be- fore him from Hele and Bond, because there the power of revocation, he said, was executed ; and the doubt was, whether the uses could be revoked toties quoties, without reserving a power of revocation, while in his case there were two distinct powers ; namely, a power to appoint uses, and a power to revoke the uses so ap- pointed. The precise point, however, was actually de- cided by the case of Hele and Bond. Some dicta represent that case as having been decided, on the ground that the power was merely tantamount to the usual power of re- vocation and limitation of new uses, and certainlv that was the true ground of the decision : the judges were of opinion that a power could not be originally reserved to revoke uses to be subsequently appointed, but they never denied that in words, three distinct powers were reserved, viz. 1st, a power to revoke the original uses ; 2d, a power to appoint new ones ; and 3d, a power to revoke such new uses. The Judges of B, R. certified, *' that the power of revocation and limitation of new uses in the first settlement was fully executed by the first appointment ; and that the further power in the settlement to revoke any new limitation or appointment was void in the creation as to such uses as should be afterwards newly liinited» unless a power of revocation should be again expressly reserved." The pomt, there- (x) Udal v.Udal, Al. 81. Note, the case of Young u. Cottle, 1 P. Wms. 101, turned upon the nature of the property, and the revocation Vtras of an original settlement, and npt of a settlement under a power. R 4 forey 248 or THE RESERVATION OF fore, doubted in Udal and Udal, and Langley v. Krown, was the very question decided in Hele and Bond. The cases cannot be distinguished. But wc must not confound these cases with those upon powers of sale and exchange^ or partition, for there the uses limited under powers previously executed, are not revoked, but simply transferred to the estate bought or taken in exchange, or upon a partition (y). It is generally thought that the reservalion of a power of revocation only, will not enable the donee to revoke the old uses, and also to appoint* new ones(z). Mr. Powell in one place states clearly, that in such case new uses may be declared (a), whilst, in a subsequent page, he enters into a long discussion to prove the contrary (/)). Becket's case, which is the 'first in the books ap- parently on this subject, is thus stated in Lane(c) ( 1 ) : " R. B.J seised of lands in fee, levies a fine, &c. and declares the use to be to himself for life, and after to T. B. with power of revocation, and to limit new uses; and ii he revoke, and not declare, then the use shall be to the use of himself for life, and after to Henry Becket, [and then by a subsequent deed, R. B. revoked (y) See Earl of Uxbridge v. Bayly, Trea. Eq. p. 163, 2d Edit. Fon- 1 Ves. jun. 4{j(). There appeals blanq. n. ibid, and 4 Cruise's to have been no foundation for Dig. 232, s. 18. the argument that the charge in (a) Pow. Powers, 244, this case was revoked. (bj Itf. 272. (a) ''2 Vol. Cas. & Opin. p. 97, 2 (c) Lane 118 ; see ib. 9I. (1 ) Mr. Powell does not refer Becket's case to the true ground of the decision. In stating Baron Snig's argument, he omits the only part of it from which that Judge's opinion can be collected. the 4 POWERS OF REVOCATION. 249 the first deed, and limited new uses], with power in that indenture also to revoke and limit new uses, and that then the fine shall be to such new uses, and no other; and after, by a third indenture, he revoked the second indenture, and declared the use of the fine to be to the use of himself for life, and after to Henry Becket in tail, the remainder to T. B." The question was, whether the third indenture w as a good revocation and limitation. It is evident that there is a chasm m the statement of the faTts : I have attempted to fiii it up with the words between crotchets. It appears clearly, from the judgment of the court, that there was a se- cond indenture executed, which also contained a power of revocation and limitation of new uses. Bromley and Aitham, Barons, thought that the new uses were well raised by the third indenture, and they relied on Digges's case. Snig, Baron, held the contrary, as the first deed ought to authorise all the declarations on the fine, and he said, '' that such an indenture to declare uses upon uses was never made, and it woidd be mis- chievous to declare infinite uses upon uses." And Tan- field agreed with Snig, but on a difterent ground ; he appears to have thought that the power to limit new uses was not well pursued, as he had declared, but not limited new uses. Now it seems quite clear, that the point under consideration did not arise in this case, for the power in the second indenture actually authorized a new limitation of uses ; the question simply was, whe- ther such powers could be reserved from time to time. This is proved by Roll's report of the same case, which is m these words : " If a man sulfer a recovery, and limit the uses by indenture, with a power of revoca- tion and limitation of new uses, and afterwards by another S50 OF THE RESERVATION OP another indenture he revokes and limits new uses with like power of revocation and limitation of new uses, this second power of revocation and new limitation of uses is good, for all rise out of the recovery, which is the foundation. Becket's case, per curiam prater Snigg(^)." If further evidence were wanting-, it is abundantly supplied by Lord Chief Justice Hale's ar- gument in the case of FoAvler and North (c) We may therefore dismiss Becket's case from our consi- deration ; it does not affect the question before us, and the point which was then doubted, is now perfectly established. The first case that appears to be in point is Ward and Lenthal (/). The case was, that a man levied a fine with a power of revocation and limitation of new uses, and by a second deed he revoked the uses, and made new limitations, with a power only to revoke; and by a third indenture he revoked the uses of the se-r cond indenture, and limited new ones. It became un- necessary to decide the point ; but the court is reported to have resolved, that where powers of revocation and new appointment are given, the donee may revoke and limit new uses toties quoties, and all the estates shall be raised out of the first seisin. But if in any inden-^ lure, he reserve a power of revocation, and do not re- serve a power expressly to limit new uses, he can only revoke, and cannot limit new uses by virtue of th« estate first raised. Now in this case we observe tbe resolution merely was, that where a deed is executed under a power of {d) 1 Ro. Abr. 262. (B) pi. 2. (/) 19 Car. 2, 1 Sid. 343. ^) 3 Keb. 7. revocationy I POWERS OF REVOCATION. 251 revocation^ reserved upon the execution of a former power, no uses can be limited out of the old seisin, un- less the deed creating such povier of revocation also contain an express authority to limit new uses. This seems to depend iipari the ground of the decision in Hele and Bond, But it is observable, that it is no where said that a pov/er of revocation in the original settlement, is not tantamount to a power of revocation and limitation of new uses. In the case of Smith and Wheeler (g), Twisden, Justice, said, that whoever hath a power of revocation, hath a power of limitation. In the case of Fowler and North (/i), no decision was made, but Hale, Chief Justice, laid it down that a power of appointment might with power of revocation be executed totles quoties, and he said it was resolved before, upon as great a settlement as any su|jject in England had, with- out any power to limit uew uses ( 1 ) . Agreeably to this was my Lord Nottingham's judgrpent, when Lord Keeper (/), that a power of revocation in an original settlement, enabled the donee not only to revoke the old uses, but to limit new ones ; and on a subsequent hearing he declared himself clearly of the same opinion (A:). ig) 22 Car. 2, 3 Mod. 40. (A) See Colston v. Gardner, 2 Cha. ih) 24 Car. 2, 3 Keb. 7. Ca. 46. (t) 26 Car. 2, Anon. 1 Cha. Ca. 241. (l) The same case is reported in 1 Ventr, 197, nom. Sir Samuel Jones V. The Countess of Manchester. Ventris appears to have mistaken the arguments at the bar, for the resolutions of the court, as will appear Wpon an attentive perusal of the reports. It 253 OF THE RESERVATION OF* It remains to state an anonymous case in Strange;- The case was this : A suffered a recovery to the us« of himself for life, remainder to three persons suc- cessively in tail, remainder to himself in fee, ^ith power to revoke the three remainders in tail. He ac- cordingly revoked them, and by the same deed de^ clared new uses in favour of the plaintiffs, without any words of conveyance, covenant to stand seised, or consideration expressed. The court held, that the uses were not well raised, because the uses of the recovery were full before, and the power was only to revoke^ and not to limit nev/ uses (/). This case does not appear to be in opposition to the decision of Lord Nottingham. It seems from the re- port, that A limited new uses out of the fee simple ge- iierally, and certainly it cannot be contended that ha could affect his life estate or reversion, without an ex- press poweri as the power of revocation did not extend to those estates, but only to the remainder in tail. The question there must have been, not whether a power of revocation implied a power to limit new uses, but whe- ther a power of revocation itself could be implied as to part of the estate in the land, to which it did not ex- pressly relate. Besides, as he reserved a partial power of revocation, and would after the revocation become seised of the entire fee simple, and part of the fee could not be affected by a bare appointment, an inten- tion appeared to reserve a power of revocation only, and not a power of limitation of new uses, which would not have answered the purposes of the settlement. This» (/) Anonymous, 1 Str, 584: case POWERS OF REVOCATION. ^oS case is very distinguisliable from a general power of re- Yocatioiij extending* to all the limitations in the settle- ment. And lilere we must be careful to distinguish the case of Atwaters and Birt (m). There it was declared^ that upon the revocation the uses should cease, and the estats should remain to the use of the settlor and his heirs; and it was held, that after revocation he could not limit new uses out of the old seisin, as no one was seised to his use, and therefore no use could arise. No one can doubt the propriety of this determination: by the very terms of the settlement the seisin was exhausted in serving the use in fee, limited to the settlor, and con- sequently no use could be raised, except hy an original conveyance. Whenever, therefore, it is declared, that upon the revocation the estate shall remain to the set- tlor in fee, it cannot be contended that he has a power to limit new uses. The result of the authorities appears to be, Ist, That in a deed cccecuiing a povver, a power of revo- cation and new appointment may be reserved, although not expressly authorized by the deed creating the power (n). And that such powers maybe reserved totiesquoties(o). 2d, That where an appointment under a power is made by deed, it .cannot be revoked unless an express power be reserved in the dQtd by which the pov.er is executed: a revocation will not be authorized bv a o-e- neral prospective power in the deed creating the first power (p). (ffl) Cro. Eliz. 856. and Bond, Pre. Cha. 474 ; App. («) Adams r, it is not easy to conceive. We may ask with Lord C. J. Willes, will any one say that any thing can descend to the heir that did not vest in the ancestor ? (/) The grounds of the de- termination were quite foreign to the question. The principle of the decision cannot even be supported by any plausible fiction, nor does policy require the adop- tion of it, as in the general run of cases it must be wholly immaterial whether the appointee take by de- (e) Okef.Heath, wZi .vwp.j Falkner (/.) Hurst v. the Earl of Winchel- V. Butler, Ambl. 514. sea, 1 Blackst. 187. 'J') Cke V. Heath, uli sup. {i) Willes, 338. (g) Vide in/ra, ch. 9, sect. 2. s scent S58 OF THE EFFECT OF THE EXECUTION OF A POWER. scent or purchase. It should be observed, that in the case reierred to, the power was reserved to the person who made the settlement, and who was at that time seized in fee. It may not, therefore, be deemed a general authority, that in every case of a beneficial power, the heir of the donee, being the appointee, takes by descent, although the donee himself never had any interest in the estate, nor indeed was it acquiesced in as an authority upon the point it professed to decide ; for the decree of Lord Keeper Henley, in conformity to the judgment of the King's Bench, was appealed against in the House of Lords, and the appeal was afterwards compromised (^). Where the will relates to personalty, it must be proved in the Spiritual court. This has been deter- mined even in regard to an appointment by the will of a feme covert, who cannot in the notion of law make a will (/), although a different opinion appears at one time to have prevailed {m). The courts of equity will not, howevGi", at this day read the appointment by will until it is duly proved as a proper will in the Spiritual Court, nor will the probate preclude the necessity of proving the instrument as an appointment, upon any claim under it in a court of equity (?i). We shall presently see that estates created by the execution of a power take effect as if created by the original deed ; and, in general, a deed executing a power camiot be considered as a new alienation, or in- (A) 2 Burr. 882. T. 8 and 9 Geo. II. MS. App. (/) Ross V. Ewer, 3 Atk. 156. No. 4 (m) Daniel If. Goodwin, Exch. T. {n) Rich v.Cockell, QVti. jnn 36(). dependent OP THE EFFECT OF THE EXECUTION OF A POWER. 259 dependent conveyance (o) ; but still there are cases in which a deed executing 'a power is for many purposes considered as a substantive, independent instrument. Thus such a deed affecting an estate in a register county, must be registered ; it is within the mischief intended to be guarded against by the acts, as a purchaser could not otherwise discover whether the power has been exercised (p). So a deed executing a power over real estate has been deemed a conveyance within the statute of Elizabeth, so as to be fraudulent, be- cause it v.as a conveyance (^). So on an issue to try whether the plaintiff' were intitled by two writings, or any other purporting a will of J. S., and the evi- dence was of a feoffment to the use of such person as J. S. should appoint by his will; in which case it w^s contended that the devisees were in by the feoff- ment, and not by the will. The court held, that this was oidy Jictione j iiris, for that they were not in without the will, and therefore that was the principal part of the title, and such proof was good enough, and pur- suant to the issue, and a verdict was accordingly given for the plaintiff" ( r ) . So, although the estate did not originally belong to the donee of the power, and the estate created by the appointment is considered as li- mited by the deed creating the power, yet a person de- riving title under an appointment, is considered as claiming under the donee, within the meaning of a co- venant by him for quiet enjoyment against any person claiming under him (i). (o) See Coke's argument in Lady {q) See2Ves. 65. Gresham's case. Mo. 26l. (r) Bartletv.Ramsden, 1 Keb.570. (/>) Scrafton I'.Quincey, 2Ves.4l3. (s) Hurd v. Fletcher, Dougl. 43. s 2 Where 260 OF THE EFFECT OF THE EXECUTION OF A TOWEft. Where there is a power to appoint part of a settled fund, the execution of tlic power takes tlie part ap- pointed entirely out of the settlement, so that althougli the beneficial interest in it is not immediately disposed of, yet there can be no resulting trust for the benefit of any person under the deed creating- the power (t). Al- though the fund sustain a loss, yet the sum subjected to the power may be appointed accordnigly, and the loss must be borne wholly by tlie persons entitled to the re- sidue (?/). II. The estates created by (he execution of a power take effect precisely in the same manner (with the ex- ception shortly noticed) as if created by the deed which raised the power. Thus, suppose a general power of appointment to be iiiven to a man by deed, and he by virtue of his power limit the estate to A for life, with .remahider to his children in strict settlement, these limi- tations will take eifect as estates limited by the original deed 5 and iu exactly the same way as they would have done had they been limited in that deed by the grantor of the power ( r) iu lieu of the power of appointment by force of which they were created. And it has been contended, that the acts done in consequence and by virtue of an authority, and pursuant thereto, are the acts of the old proprietor, and of that day wherein lie in virtue of iifs ownersJiip delegated that authority. Viui this Lord Hardwicke over-ruled. He admitted the principle, that where a person takes by execution of (0 Mansell v. Price, Rolls, MS. Clia. 110. A pp. No. 5. (.v) See Rliddleton v. Crofts, 2 (7^) Oke t.Heath, 1 Ves. JOJj Aik. 60I. see Shelley 'u. liarsfield, 1 Rep. a power. OF THE EFFECT OF THE EXECUTION OF A POWER. 261 a power, whether of realty or personalty, it is taken un- der the authority of that power, but not from the time of the creation of that power. The meaning that the persons must take under the power, or as if their names had heen inserted in the power is, that they shall take in the same manner as if the power and instrument execut- ing- the power had heen incorporated in one instrument ; then they shall take as if all that was in the instrument executing', had been expressed in that giving- the power. So it is in appointments of uses. If a feoffment is exe- cuted to such uses as he shall appoint by will, when the will is made, it is clear that the appointee, cestui que use is in by the feoffment, but has nothing from the time of the execution of the feoffment so as to vest the estate in him. The estate will vcist in him according to the nature of the act done and appointment of the use from the time of the testator's death. This, therefore, is not a relation so as to make things vest from the time of the power, but according to the time of that act ex- ecuting that power; not like the referring back in case of assignment in commission of bankruptcy ; that is by force of the statute, and to avoid mesne wrongful acts ( 7/), This doctrine that the appointee takes under the ori- ginal deed is followed in all its consequences. There- fore, although a husband cannot at common law convey directly to his wife, yet he may make an immediate ap- pointment to her {z) ; because her estate arises out of the original seisin ; and for the same reason a wife may ap- point immediately to her husband ; the principle is some>^ {y) Per Lord Hardwicke, Duke of Stonehouse, ib. 6lO, accordingly. Marlborough v. Lord Godolphin, («) See Latch, 44. i Ves. Q\ ; and see Southby v. s 3 tiling 262 OF THE EFFECT OF THE EXECUTION OF A POWER. thing similar to that which prevails in dopyholds, where a surrender by the husband to the wife, or by the wife to her husband, is good [a). So although a limitation to A for life by one instru- ment, and a limitation to his heirs or heirs of his body by another, cannot unite according to the rule in Shelley's case, yet a limitation to x\ for life by deed, and a limi- tation afterwards in his life time to his heirs, or the heirs of his body, under an execution of a power of appoint- ment contained in the deed creatikig the life estate, will coalesce, so as to give the inheritance to A. Perhaps the nearest case to this in the old books is Pybus and Mitford, where a limitation to the heirs of the body of A was held to unite with an estate for life which resulted to him by the same deed. Mr. Fearne, in his investi- gation of this point, considers it clear that the limita- tions will unite* he treats the deed executing the power as a branch of the original settlement merely directing the operation of it, quoad the uses appointed, and con- sequently the limitations in such appointment are part of such settlement, and, by relation, virtually contained therein from the time of the appointment, only declared by way of reference to a subsequent specification thereof. He treats the rule in Shelley's case as requiring no iden- tity of time in the declaring, but only of the instrument creatingthe two limitations; and to shew that the estates may vest at difierent times, he refers to the common case of an estate to two or more for their lives, remain- der to the right heirs of the survivor of them, and the case put in 1 Inst, (b), that if lands be given to two during their joint lives, remainder to the heirs (a) See Bunting v. Lepingwel, 4 Rep. 29 a. (I) 1 Inst. 378 b, of OF THE EFFECT OF THE EXECUTION OF A POWER. 263 of him who shall die first, the heir will be in hy descent, which are direct authorities that no identity in point of time of vesting of the two estates is requisite to the operation of the rule (c). When these observations were made by Mr. Fearne no judicial opinion had ever been delivered on the point* but in Venables and Morris {d) the very question arose. Under a setthriiient the husband was tenant for life, re- mainder to trustees and their heir3 generally to preserve remainder (after several uses which never arose) to such uses as the wife should appoint. She appointed to the right heirs of her husband. The court ultimately held, thaitihe fee simple seated in the trustees, so that the estate limited under the power being merely equitable, could not unite with the limitation to the husband for life in the deed, which was a legal estate ; but Lord Kenyon treated it as quite a clear point, that the ap- pointment was to be considered in the same light as if it had been inserted in the original deed by which the power of appointment was created ; and, therefore, he held, tbat if the limitation to the heirs of the husband had been a legal estate, it would have enlarged the estate in the ancestor, and given him a fee, So, as a consequence of this rule, it has been deter- mined, that where an estate was conveyed to such uses as A should appoint, remainder to himself in fee, yield- ing and paying a fee farm rent, which he covenanted to pay accordingly ; and afterwards, hy virtue of his power, he conveyed the estate to a purchaser, such purchaser was not subject to the covenant for payment of the rent, (r) Contingent Remainders, 99, 4th (d) 7 Term Rep. 342, 438. edition. s 4 for 264 OF THE EFFECT OF THE EXECUTION OF A POWER. for althoiu^h the covenant ran with the land in the first instance^ yet it ceased to do so in tlic hands of the pur- chaser, as he did not take the interest of the original gTantee, but took as if the original conveyance had heeii made to himself (c'). This decision leads to the observation, that M'herever a purchaser is to enter into a covenant which it is intended shall run with the land, the vendor ought to insist upon the purchaser taking a con- veyance to himself in fee, and should noi permit th<^ estate to be limited to the usual uses (,/') to bar dower. Of course the beneficial interest a man takes under the execution of a power forms j)art of his estate, and is, like the rest of his property, subject to his debts ; nor, indeed, can an appointment be made so as to protect the funds from the debts of the appointee (g), unless the power expressly auth0ri7.es it to be appointed to trustees, for his support and maintenance, and hot to be subject to his creditors. But equit}^ goes a step further, and holds that where a man has a general powev of appointment over a fund^ and he actually exercises his power, whether by deed or will, the property appointed shall form part of his assets, so as to be subject to the demands of his credi- tors, in preference to the claims of his legatees. or ap- pointees (//). But, in order to raise this equity, the (e) Roach v. Wadham, East, 289. (/) See Treat, of Purch. 368—373, 2d edit. (g) Alexander -j. Alexander, 2 Vcs. 640. (A) Lassells t. Lord Corn\v;ilIis, 3 Vera. 465, Prec. Cha. 232; Thompson v. Towne, 2 Vern. 319 » Hinton v. Toye, 1 Atk. 465 ; Shirley i\ Ferrars, 2 Atk. 1/2; 2 Ves, 2, 8, 0; / Ves.jun. 503, n. cited ; Bainton "u.Ward, 2 Atk. 172, 2 Ves. 2, 7 Vcs. jun. 503 n. ; Lord Townshend v. Windham, 2 Ves. 1 ; Pack ^'. Bathurst, 3 At'<. 2f)y ; Troi:igh- lon I'. Trough ton, 3 Atk. Qf>ti. power OF THE EFFECT OF THE EXECUTION OF A POWER. 265 power must be actually executed, for equity, as we shall hereafter see, never aids the non-execution of a power (z). And although creditors in these cases prevail over volun- teers, yet if a party taking under a voluntary appoint- ment sell to a person honajide and for a valuable consi- deration, such person in analogy to the decisions on the statute of voluntary conveyances, will be preferred to the creditors {k), as having a preferable equity to them. III. Although every power operates as a power of revocation and new appointment (/), yet, in order to en- able us to consider accurately the effect of the execu- tion of powers on the estates in the settlement, we must here distinguish three kinds of powers, viz. first a power of revocation ; secondly a power of appointment, with remainder over in default of appointment ; and, thirdly, particular powers in a settlement, as powers of leasing and jointuring. And first, as to a power of revocation : Immediately upon the execution of it the ancient uses are determined whether limited to a subject or to the King (m), without entry or claim, if the party who has the power is him- self tenant of the freehold, as he cannot enter upon him- self, and a claim is unnecessary ; but it has been doubted, whether a claim is not necessary where the revoker has no interest in the land (??). (i) Holmes v. Coghill, 7 Ves.jun. (ni) 1 Jo. I93. 499, 12 Ves.jun. 206. («) Digges's case, 1 Rep. 173,Sth {I) George -y. Milbanke.-Q Ves. jun. resol.3 Mo. 605 ; Co. Litt. 237 a ; 190 ; and see infra, ch, Q. and see Vernon's case, Mo. 744. (/) See Tarback v, Marbury, 3 Vern. 511. Secondly, 266 OF THE EFFECT OF THE EXECUTION OF A POWER. Secoiidlvj as to powers with estates limited in default of their being exercised : immediately upon the execution of such a poweFj the estates limited in default of ap- pointment cease, and are defeated ; and the estates* limited under the power take eflfect from the time of the execution of the power, in the same manner as if they had been contained in the deed creating the power. The estateSj however^, limited in default of appointment are as we have seen vested estates (o). Therefore, where an estate is limited to such uses as a man shall appoint, remainder to him in fee, as he is seised in fee until ap- pointment, his wife becomes dowable; and it has been doubted, whether a subsequent appointment will drive out the wife's right of dower (p). It is to prevent this question arising, that in the limitations to bar dower an interposed estate is given in default of appointment, to a trustee. But we must now enquire whether the doubt is founded. There are few points upon which a greater difierence of opinion has prevailed in the profession. It was formerly m.uch debated, whether the fee was vested in the remainder-man, but that question is now at rest. Some opinions have taken a distinction between a limi- tation in default of and until appointment, and a limita- tion merely in default of appointment; in which last case, it has been contended, the fee does not vest; this doctrine, however, cannot be supported at the present day. It must be taken as a settled principle that the fee is vested in the husband, and the right of dower has at- tached. And the opinion of most of the eminent men of the times, and amongst them of the late Mr. Fearne, was, that the right of dower was defeated with the (o) Supra, ch. 2, sect. 4. (p) See n. (2) Co. Litt,2l6 a. estate OF THE EFFECT OF THE EXECUTION OF A POWER. 267 estate on which it attached by the execution of the power. The opinions of the Judges on this point stand thus : In Cave and Holford, Mr. Justice Heath ex- pressed an opinion, that the power would enable the donee to bar the claim of dower fq J. In Cox and Chamberlain, Lord Alvanley spoke rather dubiously of the question. He said, that by the execution of the power the estate in fee might be superseded, " though perhaps not to bar dower." Lord Eldon appears to have thought with Mr. Justice Heath, that the appoint- ment drove out ail intermediate estates, and the dowress could not sustain her claim of dower upon the new estate in the appointee of the power (r). However, it has never been necessary to decide this point; and in the last case Lord Eldon said, that, notwithstanding his own opinion, if the point had arisen, he would have per- mitted the party to take the opinion of a court of law upon it. Upon principle it is difficult to frame a reason in fa- vour of the right of dower ; for although the estates limited by the execution of the power take effect only from the time of the execution of the power, yet the estates limited in default of appointment cease the in- stant before the new uses arise (1). Perhaps the doubt may have been raised on this ground, that as a convey- ance of the fee would in fact destroy the power, a (q) See 3 Ves. jun. Q57. (r) See Maundrell v. Maundrell, 10 Ves, jun. 246. (I) The doubt could scarcely be supported on Buckworth v, Thirkell, Coll. Jurid. 332, 3 Bos. and Pull. 652 n, if even that case itself had been rightly decided. partial 268 OF THE KFFECT OF THE EXECUTION OF A POWER. partial charge or riglit attaching on it, even b v operation of law, must have tlie eiTect of defeating the operation of the power pro tanto. And this, it is apprehended, is the principle : for it has never been coutendedj that where a general power of appointment is given to A, with re- mainder in default of appointment to B in fee, the right of dower of B's wife would not be defeated bv the ex- ecution of the power. Whilst the point remains unde- cided it must of course be treated as doubtful, and con- sequently a purchaser is entitled to a fine from the ven- dor and his wife at his (the vendor's) expense. Thirdly, in regard to particular powers in a settlement, as poAvers of leasing, jointuring, charging with por- tions for younger children, selling and exchanging, &c. these we may consider under two views : 1st, with re- spect to the operation of the powers on the limitations in the settlement, and, Sdly^ in relation to their effect on each other. And, first, T. It holds generally true that a power to create leases or any other estate to take effect iji possession will con- iroui and over-reach all the estates in the settlement (s). Thus, in a case (?) where lands were settled to A for life^ then to trustees for a term upon such trusts as A i^hould direct, and then to uses in strict settlement, with a power of leashig to A. A first declared the trusts of the term for payment of his debts, and then granted a lea See the argument of Bridgman, Chief Justice, in Bosworth v. Farrand, Cart. Ill; and see 2 Ho. Abr. 260, pi. 5; S. C. Cro. Jac. 3-J7, noin. Fox v. Prlckwood. (/) Talbot <:•. Tipper, Skin. 427. that OJ'THE EFFECT OF THEEXECUTION OF APOWER. 269 that he could not afterwards execute his power so as to over-reach the term ; but this was over-ruled, "^ for the term was originally subject to the power being contained in the same deed, and he having exercised his power, the leases are precedent to the term, and controul it." So, in another case, w here the settlement was to A for life, remainder to such woman as he should marry for life, remainder to the first and other sons in tail, re- mainder to A in fee, with a power to him to charge por- tions for younger children, which he afterwards duly exercised : it was prayed (hat the remainder only might be charged with the portion ; but the court held, that the power and the charge made pursuant thereto did affect the wife's estate for life as well as the remainder, and that it was like a power of leasing, which over- reaches all the estates, for which reason they said it wa,s usual to insert a proviso in such power of charging, that it shall not prejudice the jointure or other preceding estate (?). Again, in the case of Mosley and Mosley (u), under a strict settlement by a father and his eldest son, terms of years were created to raise portions for the father's younger children. And pozvcj\s wore given to the so?!, subject to his father's life estate, to direct portions to be raised for his younger children. These powers were ex- ecuted, and the father's younger children insisted that their portions were a prior incumbrance, as they Mere created by the settlement which was executed long prior to the deeds executing the powers. But Lord AHanley, then Master of the Rolls, held otherwise. ..lie said, ihni the moment the power was executed it was as if in (0 Beiile r.Beale, l P. Wms. 24^1. {u) 5,,YesJun. 243,. the 270 OF THE EFFECT OF THE EXECUTION OF A POWER. the original deed, and in that way it would stand now. This power was subject to the father's life estate : there- fore it must be taken as if made subsequent to the life estate of his father. As soon as he has executed that power the term created bj it comes in immediately after the estate of the father before the other terms, but not before his life estate. The charge, therefore, is the first incumbrance upon the estate. Suppose the power was not for a provision for younger children, but to se- cure a jointure to his wife ; according to the defendants tliat jointure would be postponed to his younger brother's fortunes. What pretence is there for that ? The mo- ment he raises the term it is put in after the life of his father to which. the power is subject. He could n\jt, he added, in point of conveyancing put it in any where else. In a late case, where there was a strict settlement, the ultimate limitation was, to the use of the settlor in fee, " subject, nevertheless, and charged with the payment of 6000/. as he should appoint." It was insisted by the bill, but not relied upon in argument, that the power only operated as a charge upon th£ ultimate reversion. The Master of the Rolls held, that upon the true con- struction the reservation of the right to charge must ex- tend to the estate in all the limitations of it, and not be confined merely to tlie reversionary interest limited to himself, over v» hich he would have a disposing power at all events [x). II. Where several powers have been given by the same deed, and two or more of them are executed, the (x) Stackhouse v. Barnston, 10 Ves. jun. 453 j see Forster v. Gra- ham, 2 Str. 961,3 Barn. R. R. 341, 428. better OF THE EFFECT OF THE EXECUTION OF A POWER. 271 better opinion appears to be, that the uses limited under the powers will, in the absence of an express declara- tion to the contrary, take effect according to the priority of the execution of the powers by which they were re- spectively raised, although it is evident, that in most cases the intention of the settlement and the object of the powers must be the best guides to the construction. In the case of Yelland and Ficlis(z/). Coke, Chief Justice, laid it dow^n, that if one make a conveyance with a power to make leases and a power of revocation, if he make a lease (1) he may afterwards revoke for the residue. Indeed, it could not possibly be argued that the interest of a lessee, who is considered a purchaser pro tanto, would be defeated by the subsequent execution of another power by the lessor. So it would be impossible to contend, that a lease under a power could be defeated by the subsequent execution of a power in the same set- tlement of charging with portions, of jointuring, or even of sale and exchange, it were not easy to lay down any abstract proposition on this head, yet questions upon it seldom occur, which is attributable to the uni- versal practice of conveyancers to express in a deed, by which several powers are created, to what uses and powers they shall severally be subject. The dictum in Moore is perhaps the only observation in the books on this point. iy) Mo. 788. (1) Viner, who inserts this dictum in his Abridgement, after this word *' lease," adds the words [of part] between brackets. Theie is no pre- tence, however, for this interpolation. CHAP. [ 272 ] CHAPTER VI. OF EQUITABLE RELIEF IN FAVOUR OF DEFECTIVE EXECUTIONS OF POWERS. SECTION I. OF THIS RELIEF WHERE THERE IS A MERITORIOUS CONSIDERATION IN THE APPOINTEE. We have before seen that powers took their rise ]>e- fore the statute of uses^ and were then sanction(^d and protected by equity only, nor did equity suffer the sta- tute to deprive it of this valuable branch of its jurisdic- tion. At law, the omission of any circumstance requir- ed to the execution of a power, was deemed fatal ; but equity, where there was a good or a valuable considera- tion, interposed its aid, and supported the defective exe- cution of the power. Before the limits toihis equitable relief were fully established, it was speciously argued, that although the circumstances required to a power must be observed at law, yet when a man hath a power over an estate^ those circumstances arc only a guard upon himself that be may not be surprised into a sudden disposition of it. But when deliberately and solemnly he hath done an act whereby he disposcth of this estate, but there wants some little ceremony or circumstance, such as the not tendering 12d. or the like, a court of equity ought OF EQUITABLE RELIEF IN FAVOUR, &C. 273 ought to supply such a defect to support this solftmc in- tention to dispose of it. For plain it is he is not sur- prised into this act, and so the reason for those circum- stances fails, and they need not be strictly observed. But to this it was answered and resolved, that powers were similar to conditions at common law : and as a mau must perform a condition at common law to intitle him to re-enter, he must execute his power to intitle him to a revocation. And a court of equity can no more let a man in to defeat an estate upon a power of revocation, without a due execution of the power, than the common law could let in a man to defeat an estate upon a con- dition, without performance of the condition ; or than a court of equity can permit a man to defeat a voluntary conveyance without a power of revocation ; for it is ail but a condition which must be performed, or no advan- tage taken of it j and a court of equity may do great things, but they cannot alter thingfi, or make them to operate contrary to their essential natures and proper- ties (a). In modern times it has been contended, that whatever is an equitable, ought to be a legal execution of a power ( b) : because, as Lord Mansfield observed, there should be a general rule of property ; and if the courts of equity say we will presume, that where the execution is for a meritorious consideration, a strict adherence to the pre- cise form was not intended, and therefore it is not ne- cessary, the moment the same rule is fixed and adopted at law, every man who creates, and every man who is (a) See 3 Cha. Ca. 66, 67, 107, {i) Zouch v. WooUton, 2 Burr. 108. 1136. T to t74 or EQUITABLE RELIEF IX FAVOUR OF to exercise a power, understands what he is to do (c). And he considered, that where there was a meritoriou* consideration, it was not necessary, even at law, strictly to adhere to the precise form (rf). The vice of this rea- soning is, that equity itself does not hold the power well executed, unless the form is adhered to ; but where the execution is for a meritorious consideration, compels the person seised of the estate in default of execution of the power to make good the defect — a jurisdiction which courts of law cannot assume, because they have no means of enforcing its observance. At the present day, however. Lord Mansfield's doctrine is completely ex- ploded : equity alone can relieve against a defective execution of a power, and that only where there is a meritorious consideration in the person applying for the aid of the court. The Master of the Rolls, with his usual precision, has strongly observed, that it is difficult to discover a sound principle for the authority which equity assumes for aiding a defective execution in certain cases. If the intention of the party possessing the power is to be re- garded, and not the interest of the party to be affected by the execution, that intention ought to be executed wherever it is manifested ; for the owner of the estate has nothing to do with the purpose ; to him it is indif- ferent whether it \s to be exercised for a creditor or a volunteer. But if the interest of the party to be affect- ed by the execution is to be regarded, why, in any case, exercise the power, except in the form and manner pre- scribed? He is an absolute stranger to the equity be- tv^een the possessor of the power, and the party in whose (*) Cowp. 267. i"^) Covvp. 269. favour DEFECTIVE FXECUTIONS OF POWERS. 275 favour it is intended to be executed. As against the debtor it is right that he should pay (1). But what equity is there for the creditor to have the money raised out of the estate of a third person in a case in which it was never agreed that it should be raised. The owner is not heard to say it will be a grievous burthen, and of no merit or utility. He is told the case provided for exiaU, it is formally riglit, he has nothing to do with the purpose. But upon a defect which this court is called upon to supply, he is not permitted to retort this argument, and to say it is not formally right, the case provided for does not exist, and he has nothing to do with the purpose. In the sort of equity upon this sub- ject, there is some want of equality. But the rule is perfectly settled, and though perhaps with some viola- tion of principle, with no practical inconvenience. ThuSj then, the jurisdiction stands, and we may now enquire what amounts to such a consideration as will enable equity to interpose its aid in favour of a defective execution of a power. I. In Chapman v. Gibson (e). Lord Alvanley laid it down that the execution of a power and a surrender of a copyhold go hand in hand precisely on the same ground, consequently the same relief is to be granted in cases of a defective execution of a power, and the want of a surrender of a copyhold. The aid of equity then will be afforded to a purchaser (/), which term includes {e) 3 Bro. C C, 229. Freem. 257 i Anon. ib. 224 ; (/) Fothergill v. Fothergill, 2 3Cha.Ca. 6S; Cowp. 267. (1). The question was, whether the Court would execute a power in favour of creditorg. t2 a mort- 376 OF EQUITABLE RELIEF IN FAVOUR OF a mortgag'ce and a lessee (1) (^), and to a creditor (//}. The like aid will be aflorded to a wife (f), or husband (h), and to a legitimate child (/), and although to constitute a valuable consideration for a settlement on a wife or child, it must be made i^e/br^ marriage; yet the marriage and blood are meritorious considerations, and claim the aid of a court of equity in support of a defective execu- tion of a power in their favour (???), although the power was executed after the marriage. But the same equity cannot be extended to a natural child (n) ; nor, as it has at length been determined, to a grandchild»(o), neither will it extend to a brother or sister (g) Barker v. Hill, 2 Cha. Rep. 113 ; Bradly v Bradley, 2 Vern. l03; Tayhr y. If^heeler, a Vern. 564; and Jennings v. Moore, ib. 6O9 ; Reid v. Sher- gold, lOVes.jun. 3;o. (A) Fothergillv.Fothergill, iihisv.p. 3 Cha. Ca, 89 ; Pollard i;. Green- vil, 1 Cha. Ca. 10, 1 Cha. Rep. 98 J Wilkes V. Holmes, 9 Mod. 485 ; Itkcll V. Bcane, 1 Ves. 115 J Bixhy V. Eley, 2 Bro. C. C 325 ; 2 Dick. 698. (i) Cowp. 267; Fothcrgillv.Fother- gill, 2 Freem. 256 j Lady Clif- ford V. Earl of Burlington, 2 Vern. 379 > Coventry v. Coven- try, 2 P.Wms, 223 ; >and see ib. 705. {k) Sargeson i>. Sealey, 2Atk.. -4 12. {D Sarth v. Lady Blanfray, Gilb. Eq. Rep. I6;jj Sneed v. Sneed, Ambl. 64} Cowp. 264, 265, cited, and see Cowp. 267. (mj Fothergill t*. Fothergill, 2 Freem. 256; and Hervey and Hervey, 1 Atk. 56l. (m) Fursaker v. Rohinson, Free. Cha. 475; Tudor v. Jnson, 2 Vcs. 582. (0) See Kettle v.Townesend, 1 Salfc. 187 ; ff^atts V. Bullas, 1 P. Wms. 60 ; Freestone v. Bant, ib. §1 n.j 3 Bro. C. C. 231; Fursa- ker V. Bohinson, Free. Cha. 477 ; Tvdor V. Jnson, 2 Ves. 582; Chapman v. Gibson, 3 Bro. C, C. 229; J^ills V. Downton, 5 Ves. jun. 567 ; Perry v. IVhile- head, 6 Vcs. jun. 544 ; and see I VVatk. Copvh. 136, 138. (1). The casej in italics weredecideJ upon copyholds. even DEFECTIVE EXECUTIONS OF POWERS. 277 even of the whole blood (p), much less of the half blood {q), nor to a nephew (r), or cousin (s), and a for- tiori, it cannot be afforded to a mere volunteer (f). We have seen that this equity extends to creditors ; and where a man having a general power of appoint- ment, duly executes it in favour of a stranger, equity will lay hold of the funds in the hands of the appointee, for the benefit of the creditors of the person executing the power (21) ; but where the power is not executed, equity cannot assist the creditors (a). Upon this doc- trine Lord Erskine in a late case started an ingenious question, whether if the power be informally executed in favour of a stranger, equity can first grant the relief at the suit of the creditors, so as to vest the fund in the appointee, and then convert him into a trustee of it for the creditors ; and he appeared to think that this might be done ( ?/). There is no authority however for this cir- cuitous relief, and it may well be doubted whether it will ever be granted. Where the fund is effectually given to a stranger, equity considers him a trustee of it for the creditors. In this case the remainder-man has no ground of complaint, as the power is legally executed. Where a defect is supplied for the appointee, the relief ip) GoGdwyn v. Goodtvyn, 1 Ves. (j) Tudor v. Anson, 2 Ves. 582. 228. (/) Smith v. Ashton, 2 Freem. (q) Goring v. Nash, 3 Atk. 189; 309; see 3 Cha. Ca. 113, 126; which overruled Waits v. BuUas, Sargcson v. Sealey, 2 Atk. 415 ; tilt sup. Godwin V. Kilsha, Ambl. 684; (r) Strode v. Russell, 1 Vern. 621 ; Reg. Lib. A. 1768, fol. 495. Marston v. Gowan, 3 Bro. C. C. (m) Kidt ch. 5. sect. 8. 170 ; and see Piggot v. Penrice, (x) Fide infra, sect. 3. Com. 250. {y) Holmes v. Coghill, 12 Ves. jun. 206, T 3 has 278 OF EQUITABLE RELIEF IN FAVOUR OF has at least the merit of effectuating the intention of the person executing the power, although at the expense of the remainder-nian ; but if this relief should be afforded in favour of creditors, where the fund is not given to them, the same hardship would be imposed on the re- mainder-man, and at the same time the intention of the donee of the power would be defeated. Upon this head of equity, it is clearly established that the interests of the remainder-man shall only be sacrificed to the intention of the donee of the power expressed in favour ofapersonfrom a valuable consideration moved, or in whose person a good consideration existed. The first point to be esta- blished is the intention of the person executing the power, which in this case is not merely wanting, but his intention expressly was, that his creditors should not have the fund. The common equity in favour of cre- ditors, where the fund is given to others, does not arise until the power is legally executed. The limits of the law on this head appear to be contained in the decided cases. Although the appointee may pn'ma /am be entitled to the aid of the court (z), yet to prevail, he must have a preferable equity io the person against whom he seeks the relief. Therefore wliere a father agreed to settle an estate on his wife and -children, but neglected to do so, and afterwards prevailed upon his eldest son, who was ignorant of the agreement, to settle the estate in a diffe- rent way, whereby the father had a power of jointuring, which upon his second marriage he agreed to execute ; the agreement after his death was decreed to be speci- fically executed by the son, who was the remainder-man (z) See Shadwell's case, 1 Yes, 281, cited j and see Hervey v. Ilervey, 1 Atk. 568. under DEFECTIVE EXECUTIONS OF POWERS. 279 under the settlement, but this decree was reversed in the House of Lords (a) (1). The son was seised of the legal estate^, and he had as good an equity to retain the estate discharged of the jointure, as the wife had to have the defect supplied. So although there is a meritorious consideration in the appointee, yet if the donee of the power after a de- fective execution of it, legally execute it in favour of a bonajide purchaser or mortgagee without notice, the court cannot interfere; for by the last execution the purchaser obtains the legal estate ; and as he has equal equity with the first appointee, he cannot be disturbed. But if previously to paying his money, or to the exe- cution of the power, he have notice either express or im- plied, of the prior appointment, equity will compel him, on the ground of fraud, to convey the estate to the first appointee, so as to make good the defect in the appoint- ment to him (b). And where trustees with a power of sale enter into a (a) Jevers v. Jevers, Dom. Proc. (l) As to what amounts to notice, 1 734. see Treat. Purch. 2d. edit. ch. 1 7. (1) The prjuciple in the text is clear, and Jevers and Jevers is stated in Gro. and Rud. of Law and Equity, p. I9, as having been decided on the ground of the fraud in the father ; but from the printed cases it ap- pears that the settlement was made in consideration of the son waving the agreement entered into upon his mother's marriage, and the bond for set- tling the jointure had no referencewhatever tothe power, upon which per- haps the case turned. However, the author of the above book, who lived in the time when the decision was made, most likely knew the ground to which the decision was generally refei red. The above case is in 4 Bro. P. C. 199, by the name of Ivcrs v. Iver«, wliich difference arose from the printed cases. In the appellant's case, the cause is entitled .levers V. Jevers, in the respcncleni** Ivers v. Ivcrs. T 4 contract 280 OF EQUITABLE RELIEF IN FAVOUR OF contract for sale of the estate, which would be deemed a breach of trust, equity will not only refuse to inter- fere in favour of the purchaser, but will even at the suit of the cestuis que trust, restrain the trustees from execut- ing the contract, and the purchaser will be left to his remedy at law (c). Upon this subject of equitable relief, a question has often arisen, whether a party be intitk d to the relief who is already provided for ; but it is well settled, that of the quantum of provision, the parent or husband is the best judge (rZ). It has, however, been long vexata questio, whether a surrender can be supplied against an heir to- tally unprovided for (e). In Chapman and Gibson, Lord Alvanley considered that the heir could not be re-- lieved against. The principle, he said, must be this, that the testator being under an obligation to do an act, we will compel the heir to perfect it; but we will not compel him to fulfil one obligation at the expense of another ; and if the testator has totally forgot to make any provision for his eldest son, this shall be an answer to the claim of the wife or other children. In a late case (/), Lord Rosslyn considered it equally clear that the court could not enter into the ques- tion, whether the heir was or was not provided for ; but it was not necessary to decide the point. Lord Al- (c) See Mortlock v. BuUer, 10 m«, 2Ves.582; Smithy. Baker, Ves. jun. 292; and see Strat- \ k\k.3Q5 \ Chapman \.Gilsonf ford V. Lord Aldborougb, ] 3 JBro. C. C. 229. Ridg. P. C.281 ; Brianv. Acton, (e) Kettle v. Townesend, 1 Salk. 5 Vin. Abr, 533, pi. 33. 187 ; Hawkins v. Leigh, 1 Atk. (d) Kettle v. Townesend, 1 Salk. 387. 187 ; Andrews v. Waller, 6. Vin. (/) Hills v. Downton, 5 Ves. jun. Ahx.2Z'^,v\.\2', TudoTV. An- 557. vanlcv. DEFECTIVE EXECUTIONS OF POWERS. 281 vanley, however^, did not subscribe to Lord Rosslyn'g doctrine, but still retained his opinion, that an heir could not be compelled to supply the surrender where he could shew that the consequence would be (he being a son wholly unprovided for ), that he would be compell- ed to fulfil the intention of his father in discharge of a moral or natural obligation in favour of a widow, or of his brothers or sisters, when it was manifest that he had neglected to discharge the obligation he was under of providing for him his eldest son (g). This question, therefore, is still very doubtful ; nor is it easy to conjec- ture which way it will be decided. They who advert to principle will probably agree with Lord Alvanley, whilst those who regard practical inconvenience, will coincide with Lord Rosslyn, as certainly endless difficulties will be introduced if the court is to inquire into the circum- stances of the heir at law. It is clear, however, that this question can never arise where the heirs are persons for whom the testator is un- der no natural or moral obligation to provide, as where the heir is a nephew or niece (h). But if the enquiry is to be made, it should seem that a grandchild will be within the principle, although a surrender or a defect in the execution of a power cannot be supplied in his favour. Lord Rosslyn has decided that daughters are provided for when married (t), nor is it necessary that the heir should be disinherited, for if he is provided for, it is immaterial from whom the provision moved (k), (g) See, App. No. 6, theobserva- (i) Hilli v. Downton, 5 Ves.jun. tions of Lord Alvanley on Hills S57. and Downton, written with his (k) Hawkins v. Leigh, I Atk. 387 i own hand. Chapman v. GiOson, 3 Bro. C. (A) Chapman r. Gibson, uFi sup. C. 229 j Pike v. fFhite, ib. 2S6. Smith V £akerj 1 Atk. 38*. * Important^ 282 OF EQUITABLE RELIEF IN FAVOUR OP" Important, however, as this question is, and frequent- ly as it win probably arise on copyholds, yet it is a point that can seldom occur in relation to powers. For ques- tions as to aiding defective executions of powers, gene- rally arise upon particular powers in settlements where the estate subject to the power is either settled on the heirs of the person creating the power, or on stran- gers : If it be settled on the heiis, then they are pro- vided for under the settlement ; and if it be settled on strangers, thei/ cannot require a provision, so that in either case the defect may be supplied, although it should be determined that the relief cannot be granted against an heir totally unprovided for. Indeed, in the case of Carter v. Carter (/), Sir Joseph Jekyll addressing him- self to this point, said, that where a younger child comes into equity to have the want of a surrender of a copy- hold supplied, he must be wholly unprovided for, or have but a very slight provision, though there had been great variety of opinions upon this point, and where all the children ha^e been well provided for, the court has supplied the want of a surrender against the heir, be- cause the father was the best judge in which manner to provide for his children; and he believed Lord Cowper was the first who refused it, because the younger child was greatly provided for, and the heir had little or no- thing ; but he had never known this distinction made, or that the court would enter into the consideration of it where the younger child has applied to have a defective execuiion of a power wade good. It is impossible, however, to administer a different equity in these cases. They stand on precisely the same ground. We havd Lord Alvanley's authority for this {q). The samedoc- (0 Moic 3(i5. (7) Chapman v. Gibson, 3 Bro. C. C. 219. DEFECTIVE EXECUTIONS OP POTTERS. 285 trine was laid down by Lord Chancellor King(r), and adopted by Lord Camden ( s ) . In Mac Adam v. Logan (f), a power was given to appoint a fund amongst such child or children of the marriage as the donee should choose, and in default of appointment the fund was given to all the children equally. The power was defectively executed, as the appointment was not sealed according io the power, and Lord Thurlow, it is said, seemed to think that the want of a seal could not be supplied between persons having equal equities, though it might against an heir at law or remainder-man : but being all children, it was like a naked power. The case, however, was decided upon another ground : and it should seem that Lord Thur- low's opinion cannot be supported, for surrenders of copyholds and executions of powers in this respect go hand in hand ; and it is well established, that as to copy- holds the same equity shall be administered against a younger son as against an eldest (m). Therefore, if the children are entitled in the same way as heirs in gavel- kind, the defect will be supplied in favour of anj- of the children, in the same manner as in common cases it would be supplied against the heir at law (oc). So, if the case before Lord Thurlow had turned on that point, the defect ought to have been supplied on precisely the same principle ; the mere circumstance of all the parties being children was not material, for those to whom the (r) Cotter -u. Layer, 2 P. Wms, («) See 2 Vern. iQi j and Drake 623, third point. v. Robinson, 1 P. Wms. 443. (i) Godwin v. Kilsha, Ambl. 684. (*) Bradley v. Bradley, 2 Vern. (0 3 Bro. C. C. 310. 163 3 Andrews v. Waller, 6 Vin. Abi. p. 237, pi. 12. fund 284 OF EQUITABLE REMEP IN FAVOUR OF fund was not appointed were quoad this relief remain- der-men ; and then, unless they were totally unprovided for,, and Lord Alvanley's opinion were to prevail, they ought to have heen decreed to make good the defect. Lord Chief Justice Holt may be thought to have been of the same opinion as Lord Thurlow. In Mountague V. Bath (7/) he put this case. A man settles all his estate upon his younger son for life, with a power to revoke, and then, by defective execution, he gives all the estate to his eldest son, is this a good revocation in equity ? And he answered. No ; for the one is as nearly related to the father as the other, the considerations are equal, the one is as much the son as the other, and, therefore, there is no great difference between them, and the younger son, who hath the estate by law shall enjoy it, though afterwards it return back to him that was the eldest. Now, as Holt put this case, it embraced all the ancestor's estate, so that if the defect had been supplied the younger son would have been totally unprovided for, and this must have been the ground of Holt's opinion, for if his opinion were to be adopied as a general rule, it is evident that the court would never supply a surren- der against an eldest son in favour of younger children ; indeed, the same argument, precisely, was formerly urged against supplying a surrender to the prejudice of an eldest son ; it was insisted, that he was as nearly re- lated as his brother, and having the law of his side equity ought not to interpose (2), but this doctrine never gained a footing. (y) 3 Cha. Ca. 55 j and see 2 Ves. (a) See Fothergill v. Fothergill, 7S» 3 Freem. 257. If DEFECTITE EXECUTIONS OF POWERS. 285 If under an equitable settlement a power of charging money for his own use be given to tenant for life, and he covenant to discharge the estate from certain incum- brances on it, it seems that an execution of the power for valuable consideration before breach of the covenant, would be enforced in equity, although it should be af- terwards broken ; but it is doubtful whether this would be done if the covenant was previously broken, as the person lending the money ought to have enquired whe- ther the covenant was performed, and clearly a per- son not actually advancing money on the faith of the power, but obtaining an execution of it after breach of the covenant to patch up a former security, will not be entitled to the aid of equity against the remainder-man who takes the estate charged with the incumbrances of which it ought to have been cleared (a). II. Having considered for whom a defect will be sup- plied, we must now consider in what cases it will be made good with reference to the instrumenty merely pre- mising, that where there are several defective execu- tions, equity will supply the defect in the last, in order to effectuate the intent of the parties (h). And it is only necessary that the intention to execute the power should appear clearly in writing : whether the donee of the power only covenant to execute it (c), or by his will (o) Bradbury v. Hunter, 3 Ves. ford, 2 P. Wms. 230, cited ; Co- jun. 187, 260. ventry v. Coventry, Francis's {h) Hervey v. Hervey, 1 Atk. Max. last case, 2 P. Wms. 222, 561. Gilb. Eq. Rep. 160, l Str. 5g6, (c) Fothergill 1;. Fothergill, uU 9 Mod. 12; Sargeson v.Sealey, sup. : Lady Beautby's case, 2 2 Atk. 412. Vem. 465, cited ; Alford v. Al- desire 286 OF EQUITABLE RELIEF IN FAVOUR OP desire the reraainder-maii to create the estate (d), or merel}"^ enter into a contract, not under seal, to execute his power {e), or by letters promise to grant an estate which he can only do by an exercise of his power (f), equity will supply the defect. So, if in a deed appoint- ing part of the estate to one of the objects, the donee re- cite that another of the objects is entitled to a particular share of the fund, that will be held a good appointment in equity, as it demonstrates an intention to give that •hare accordingly {g). So an answer to a bill in Chan- cery, stating, that " he does appoint, and intends by a writing in due form to appoint," the fund in a particular manner, was held to be binding although the power was required to be executed by writing under hand and seal attested by two witnesses (A). The court considered the words do appoint as a present defective appointment, and that the words intend to appoint did not derogate from that actual appointment, or shew that it would not avail, but only that he would afterwards execute it in the pre- cise form. And where a man made a settlement of an estate to uses in strict settlement, and reserved a power by deed or will executed in the presence of two wit- nesses, to appoint any of the lands for raising portions for his younger children to be paid as he should by such deed or will appoint, and by the settlement covenanted to do so accordingli/, this covenant was held to be aa (rf) Vernon v. Vernon, Ambl. 1 . (/) See and consider Campbell v. (e) Shannon v. Bradstreet, 1 Rep. Leach, Ambl. 740, App. No. 7. Temp. Rcdesdale, 52 ; and see {g) Wilson v. Piggot, 2 Ves. jun. Mortlock-y. Buller, lOVes.jun. 351. 392 J and see Coventry w. Coven- (A) Carter v. Carter, Mose. 365 ; try. Max. Eq. per Sir Joseph and see Fortescue v. Gregor, 5 Jekyll, Ves. jun. 553. equitable DEFECTIVE EXECUTIONS OF POWERS, 287 equitable execution of the power, although he died without doing any further act(/). This case evinces that the branch of equity on which it depended is not confined within very narrow bounds. And whatever solemnities are required to the execution of the power, yet a sale of the funds, and payment of the produce to the object of the power, at the request of the donee, is in equity tantamount to a valid legal appointmeist (k). But to enable equity to relieve there must, as in the case of a regular execution (l), be a sufficient reference to the fund to shew the party's intention to execute the power, or the party must be in possession of no other fund upon which the covenant can operate (m). Powers of jointuring to be exercised when in posses- sion, are frequently agreed to be executed by remainder- men whose right of possession has not accrued, and equity cannot make good the appointment, unless the party afterwards actually do come into possession (w). The leading case on this subject is Coventry v. Coven- try (o), where a devisee with a power of jointuring to (i) Doctor Sarth v. Lady Blanfrey, (n) Jackson v. Jackson, ubi sup. ; Gilb. Eq. Rep. l66, cited. and see Alford v. Alford, 2 P. (i) Roufledge v. Dooril, 2 Ves. Wms. 230, where Francis sur- jun. 357. vived Thomas; see 4 Bro. C. C. (/) Fide supra, ch 5, sect. 5. 466; and see 1 Rep. T. Redes- (m) Jackson v. Jackson, 4 Bro. C. dale, (53. C. 462 ; Hele v. Hele, or Elliott (0^ Goventry v. Coventry, 2 P. V. Hele, 2 Cha. Ca. 28, 29, 87 ; Wms. 222, et ubi sup. 1 Vern. 406 (1). (1) In the report of this case in Vernon, the Cbancellor takes up the objection as if the power was general, bat this certainly could not have been an objection. It seems that it was the covenant which was general, and the covenantor had other lands besides those comprised in the power. Mr. Powell has noticed this inaccuracy, Pow. 183—187. the 288 OF EQUITABLE RELIEIP 1N FAVOUR OF the extent of 500/. a year, upon a treaty for marriage by articles in consideration of a marriage portion, covenanted that he or his heirs would after the marriage, accord- ing to his power, or otherwise, convey and appoint estates of 500/. per annum upon his wife for her jointure. A part of the estate was afterwards selected, and the ap- pointment prepared and engrossed, but never executed. And Lord Chancellor Macclesfield, the Master of the Rolls, Baron Price, and Baron Gilbert, held, that the articles operated as a lien upon the estates selected, in the hands of the remainder-man, and that the defect ought to be supplied. They considered the words " or other- wise" as auxiliary to the real lien, viz. that if his power should happen to be insufficient to settle 500/. a vear, that then it should be done by some other means. It was true he had election to raise the jointure out of his own assets, or out of his power ; but it seemed plain, that he intended to raise it out of his power, and the deed prepared was sufficient to shew that intention. The same relief is atforded in cases where the power is actually executed, but lands to the value agreed to be settled by articles are not comprised in the power. The wife will be relieved against the remainder-man to the extent of the deficiency (p), for articles are executory, and there is no difference between articles unexecuted in toto, or in part only j nor is it material if in these cases the appointee has taken a collateral covenant from the donee of the power that the lands are of the stated value {q). (p) Marchioness of Blandford v. Duchess of Marlborough, 2 Atk. 542. (tj) Lady Clifford v Earl of Bur- lington, 3 Vern. 379. This case asw not entirely approved of by the Master of the Rolls in Evelyn V. Evelyn, 2 P.Wms. 668, but is confirmed by Lord Hardwicke's opinion in the Marchioness of B'andford's case. If DEFECTIVE EXECUTIONS OF POWERS. 289 If the husband is to become entitled to the wife's fortune in consideration of the jointure^ and the wife cannot obtain the jointure^ she will be entitled to retain her property against her husband (r) : while the obligations of the husband remain un|jerformedj neither he nor any person claiming under hira, will be permitted to receive any part of the wife's fortune upon any other condition than that of making good the settlement (^). Where the contract to execute the power is merely by parol, it is doubtful whether it will bind the remainder- man, aWiough it is in jmrt j^crf armed by the intended appointee; as where a lease is agreed to be granted by. parol under a power, and the lessee expend money in improvements during the life of the person who agreed to grant the lease (^). But if after his death the re- mainder-man, w^ith full knowledge of the defect, lie by, and suffer the lessee to improve the estate by rebuilding or otherwise, equity will, on the ground of fraud, com- pel him to grant a new lease to the lessee (/i). In 1781, Lord Kenyon gave an opinion, that a lease by parol from \car to year by tenant for life with a power, was, since the case of Leach c;. Campbell, binding in equity on the remainder-man ; and that, consequently, the executors of the tenant for life, who died in the middle of a half year, were not entitled to an apportionment, but the rent would go to tlie remainder-man. He added, that he believed this point had been determined, and that some- time ago he concurred with Mr. Dunning and Mr. Maddocks in an opinion to the effect of that he had then given. In a late case the very point arose, but it was (r) Holt V. Holt, 2 P. Wms. 648. (t) Shannon v. Bradstreet, jJri sup. (s) Mitford v. Mitford, 9 Ves. jun. (u) Stiles v. Cowper, 3 Atk. 6Q2, 87. vide infra, sect. 2. u not 290 OF EQUITABLE RELIEF IN FAVOUR OF not necessary to decide it (x). The opinion of the court, however, appeared to be, tliat the remainder-man was not bound by the lease, and, therefore, was not entitled to the rent. And it seems clear, that the case will be so decided should it ever call for a decision. A mere te- nant from year to year does not seem to come witlna the class of persons entitled to the aid of equity (?/), although certainly in Campbell v. Leach, Lord Chief Justice De Grey said, that such a tenant might be deemed a pur- chaser. And here it must be observed, that as a contract to execute a power will bind the remainder-man, so where it can be executed in his favour^'as in the case of an agreement to grant a lease, or sell an estate, the court will compel the e^iccution of it on his behalf (z); although this seems formerly to have been doubted («). In (x) Billing w. Earl of Macclesfield, Rolls, 5 Feb. 1807, MS. (y) Fide post, div. 111. (•r) Shannon "u. Bradstreet, 1 Sch. and Lef. 52. (a) Stamford v. Omly, 1 Eep. T. Redesdale, 65 cited ; and Camj>- bell 1). Leach, Ambl. 749 (l). (1) In this case Lord C. J. De Grey, after holding that the lessee might inforce the -contract against the remainder-man, is made to say, " And I do not know that the remainder-man could on his part en- force the contract of such tenant for life. I had at first some doubt of this point, but own myself satisfied by what was said in answer." In a late case Lord Redesdale said, that he suspected these additional words ■were not uttered by the Lord Chief Justice ; Shannon and Brad street, till sup. It is evident, however, that they were, and it seems clear, that his opinion was exactly contrary to what it is stated to have be^i . It is manifest from the frame of the sentence, that he said he did not now DEFECTIVE EXECUTIONS OF POWERS. 291 In some cases this equity iiiav be very beneficial to the remainder-man. Suppose a power to make a jointure uot exceeding 1000/. per annum, with aproviso, that if there were no execution of the power, and if tbe tenant for life should die leaving a widow, that she should have 500/. per annum : and suppose a contract made upon the marriage of the tenant for life to charge 400/. for her under the power, which would be a less provi- sion than she would have if the power had not been ex- ecuted : Lord Redesdale, who put this case, conceived that the widow could not say she was not bound (/>). In none of the cases we have yet examined was the power attempted to be legally executed by a formal in- strument, in the manner required by the power. The same relief, however, is granted where an attempt is made to execute the power, but there is a defect in the mode of execution ; as where the power ought to be ex- ecuted by deed, but is executed by will {c), or the in- (Z-) 1 Sch. and Lef. 63, 64. Sneed, Ambl. 64, Cowp. 264, (f) Toilet V. Toilet, 2 P. Wins. 265, cited, (11). 489i Mose. 46, S.C; Sneed v. know that the remainder-man could not enforce the contract. This will appear clearly on a perusal of the whole sentence in the report. The omission of the word 720/ was probably an error of the press. (11) This case stands thus in the Register's book. Power to husband and wife, or the survivor, by any deed or deeds du\y executed to charge upoa the lands any sums not exceeding 3000/. The husband who sur- vived, by his will declared, that the 3000/. charged upon the estate should be disposed of for his younger children's fortunes. They had portions out of other estates. The Lord Chancellor declared that the power was defectively executed by the testator's will, but that such de- fect ought to be made good in a Court of Equity, and that the said 3000/. was well charged by the testator's will for the benefit of the said younger children. Reg. Lib. B. 1747, fol. 442, Sneyd v. Trevor, u 2 strumcnt 292 OF EQUITABLE RELIEF IN FAVOUR OF strument is required to be attested by tbree witnesses, whereas it is only attested by two (d), or the will ought to be under seal, but consists merely of notes in writing-, which are found to be tlie will of the party (e) ; and although the subject of the power be real estate, yet this relief is afforded as well where the defective instrument is a will, as where it is an act inter vivos (/). It has, indeed, been lately contended, that equity cannot relieve against a defective execution where it ought to be executed by will. It is amongst other arguments insisted, that if a power over real estate is to be exercised by will, inasmuch there can be no will at all of such property, unless it be perfected in the man- ner prescribed by the statute of frauds ; if a will be made without being so perfected, it is as if the power were attempted to be executed by a totally different in- strument from that to which it was expressly made sub- ject (»^). No authority is cited for this position, and perhaps the only one in the books is a r/zYti/??i by Gilbert in Lady Coventry's case (/?), who lays down the same rule in his Lex Prjetoria [i). He says, that if the power be to be executed bv a will in writin"-, there it must have the circumstances required by the statute of frauds and perjuries to a will in writing that passes lands, because (d) Parker v. Parker, Gilb. Eq. 3 Keb. 551, 1 Cha. Cn. 263, Rep. 168; Cotter v. Layer, 2 264, 1 Freem. 308 j see 3 Cha. P Wms, 623 ; Mosc. 227 ; Ca. 69, IO6. Sargeson v. Sealey, 2 Atk. 412; (/) V/ilkes v. Holmes, 9 Mod. Godwin v. Fisher, I Bro. C. C. 485 ; 1 Rep. Temp. Redesdale. 367 cited, must be the same case 60 n. ; 1 Dick. 105 ; and see 2 as Godwin v. Kilsha, Ambl. 684, P. Wms. 228, arguendo. Reg. Lib. A, 176S, fol. 4953 (Jr) Rob. on Stat, of Frauds, 330. Wade V. Paget, 1 Bro. C. C. 363. {h) Fr^. r^Iax. p. 5. (e) Smith v. Ashton, Finch, 273, (i) P. 301. otherwise DEFECTIVE EXECUTIONS OF POWERS. 4VO otherwise it is no will^ and^ therefore, cannot charge the lands as a will, since such wills are made void by the statute ; and, therefore, the court of equity cannot break in upon those solemnities. But the authorities to which he refers do not bear him out, and the principal point was solemnly determined in the year 1752 by Lord Hardwicke in the case of Wilkes and Holmes (A), where the power rode over real estate, and was expressly re- quired to be executed by will duly executed. Lord Hardwicke, after time taken to consider, held, that the defect mi^-ht be supplied. He said, that where a will is to operate by way of appointment it takes no effect from the statute, though the rules prescribed by the statute might, as in the case before him, be arbitrarily inserted by the party; and that the appointee cannot claim under the will, but by the deed of settlement di- recting the execution of the power ; which deed, toge- ther with the instrument executing the power, make in effect but one in raising the charge upon the land ; but that in point of law, the charge is created by the deed directing the execution of the power. The statute of frauds, he repeated, was entiiely out of the question, except so far as it is the rule which the donee is directed to follow in the execution of the power. Lord Redes- dale lately observed, that this case has been acted upoa ever since (/}. Nor is this equitable relief confined simply to defects in the instrument executing the power, for equity will in some cases relieve where a different kind of estate or interest is given than what is authorised by the power. But these cases must be considered in another place. (k) Wilkes p. Holmes, 9 Mod. 485 ; (/) 1 Sch. and Lef. 60. 1 Dick. 165. V S And 294 OF EQUITABLE RELIEF IN FAVOUR OF And equity will not only relieve a.2:aiiist a defective execution of a power, but will, on the general rule, rec- tify a settlement itself where a mistake has been made in it so as to render a power inoperative, or partly to de- feat the intent of it, and parol evidence will be admitted to prove how the mistake arose (m). The student will not fail to have observed, that in none of the cases stated was the intention of the person creuiUig the power defeated. If the power be given to be executed by deed, to him it is immaterial whether it be executed by deed or will ; if three witnesses be re- quired, to him it is unimportant whether it be executed in the presence of three or two, so that the interest created is authorized by the power, for equity will not relieve against the defect if the donee has been sur- prized into the act. But equity cannot uphold an act which would defeat the intention of the person creating the power. Thus, in Reid v. Shergold, a de- visee having a life estate in a copyhold, w ith a power of appointment by uzY/, sold and surrendered the estate to a purchaser, and after her death the question was, whe- ther the purchaser could be relieved against the defect. Lord Eklon determined that he could not. His Lord- ship said, " that the testator did not mean she should so execute her power. He intended that she should give by w ill or not at all, and it was impossible to hold that the execution of an instrument or deed, which if it availed to any purpose, must avail to the destruction of that power the testator meant to remain capable of ex- (m) Rogers -y. Earl, Treat. Purch. 113, 2d edit, stated from Reg. Lib. ; and see Prince and Green, 3 Cha. Ca. 9I, cited ; Countess of Oxford v. Lady Bruce, 1 Freem. 308 cited 3 Scambler'a case, Toth. 1 66 j and see Wilmer V. Kendrick, 1 Cha. Ca. 15Q. cutioB DEFECTIVE EXECUTIONS OF POWERS. §95 ecution to the moment of her deaths could be considered in eqiiitVj an attempt in or towards the execution of the power {n)." The distinction between this case and the case of a power executed bj^ will, though required to be executed bj deed, is marked and obvious. III. Here we must stop to enquire whether equity will in every case, where there is a meritorious conside- ration, supply the defect whatever be the nature of the power. It is well settled, that defects shall be supplied where the power is to jointure, to raise portions, to sell an estate, to revoke uses, or to appoint the estate itself generally,; and indeed the only doubt is, how far a de- fective execution of a power of leasing can be aided. Thus far is clear, that in the construction of powers originalhj hi Iheir nature legal, courts of equity must follow the law, be the consideration ever so merito- rious J for instance, powers to a tenant in tail to make leases under the statute, if not executed in the requisite form, no consideration ever so meritorious will avail; So with respect to powers under the civil list act, powers under particular family intails, as the case of the Duke of Bolton, &c. equity can no more relieve from defects h\ them, than it can from defects in a common reco- very {o). The material question, however, to be considered, is, whether equity can relieve against a defective execution t»f the usual power of leasing in settlements. An opinion lias very generally prevailed in the profession, that, as {n) Reld y. Shergold, lOWs.jnn- (o) Per Lord Mansfield, Cowp, 3/0 ; see Stratford ^<. Lord Aid- 26'7 ; and sec accordingly Anon, borougli, 1 Ridg. P. C. 2^1. 2 Freem, 224. u i Mr. 996 OF EQUITABLE RELIEF IN FAVOUR OF Mr. Powell expresses it{o), " the lessee under the power must stand or 'tall by that title onlij, and if that will not bear him through, as effectually made under a complete and perfect execution of the power, the right of the re- niaindcr-man to possess the estate free from the lease will take place of the right of the lessee, as superior to it. For in this case the lessee has no claim to any equi- table interposition in his favour, hut must rest his title on the legal execution of the power." And this opinion seems, at first view, tu dcri\e some support from the case of Temple v. Baltinglass (p), where a bill filed to supply' a defective execution of a power to make lease* which had been held void at law, was dismissed with costs : but there ajipears to have been great lachess on the part of the tenant, and some of the estates leased ivere not authorized to he leased hij the power. So in Doe r. Saiidlia!u {n) a lease under a power was set aside at law, becau«e the power required the leases to coutahi usual and rtasonahle covenants, and a covenant was contained in the lease which the jury found to be an unusual and unheard of cove- nant on the part of thelessor. The lessee tiled his bill in the Court of Exchequer agahist the remainder-man, who had recovered at law, to have the unusual covenant struck out of the lease. But the bill was dismissed (r). On the other hand, in a case in 1698, the Master of the Rolls took this distinction, that where a lease is made purely voluntary, and no provision for a child, there if the lease be not good at law, it shall never be made (o) Pow. Powers, p. O69. (j) Sandham v. Medwin, Excheq. (/>) Finch, 275; and see Pigot's 2 March 1789 ; in the Register's case, Cary, p. 2(). Calendar it stands, Hilary Tern), {q) Doe V. Sandham, lTcrmRp.;05. 1789— lo. good DEFECTIVE EXECUTIONS OF POWERS. ^97 good in equity. But if a lease be made to a tenant at rack-rent without a fine, which is voluntary, yet if the tenant hath been at any considerable expense in building or improving-, there the court will supply the defective execution, but otherwise not (s). Now from this it is clear, that the Master of the Rolls was of opinion that where the lessee was in the nature of a purchaser, he should be helped against a defective execution of a power. There appears to be no ground for aiding a de- ' feet in favour of a mere tenant at rack-rent, although holding under a lease, much less can the relief be af- forded to a tenant from 3ear to year holding under a parol, or even a written contract. The part perform- ance of the agreement by taking possession, &c. is not material, as if an actual lease had been granted, a de- fect in it could not have been supplied. The lessee pay- ing the full value for the estate^ and that only during his occupation of it, cannot be put on the footing of a purchaser, who would sustain an actual loss if equity were not to interpose its aid. But where the lessee has expended money on the estate, he becomes a purchaser of the interest granted to him, and may well be held en- titled to the aid of equity (t). In the great case of Campbell v. Leach (iij, the facts of which it is not easy to collect from the report, under a power to lease in possession, a new lease was granted to a person during the continuance of a former lease to him and another. The former lease was abandoned, but not surrendered : the new lease was agreed to be (s) Anon. 2Fiem. 224. (u) Ambl. 740 ; App. No. 7, the (t) Fidesvpra p.28g,2gO. material facts stated from Lib. Reg. bad 298 OF EQUITABLE RELIEF IN FAVOUR OF bad at law^ and it was doubtful whether the best rent wass reserved : the bill was filed to supply the defect against the remainder-man ; the lessee had been at great ex- pense. The cause was heard before Lord Bathurst, assisted by Lord Chief Baron Sni) tlie and Lord Chief Justice Dc Grey. The Lord Chief Baron said, the question arose upon the execution of a power, where courts of equity often interfere in behalf of creditors, purchasers, wife and children. The present was the case of a purchaser. The consideration moving from him was the money he had laid out. The objection was, that it was a lease in reversion, as there was a subsisting lease of the premises for some years then to come; but if such former lease was in fact given up at the time of this lease as was aliened, it would, he said, bean answer, so that if the lease w as fair in its execution as to the quantum of the rent reserved, he thought a court of equity ought to carry it into execution. Lord Chief Justice De Grey was of the same opinion. He said, that the power w-as of a mixed nature, not like a power of jointuring, or power for raising money. But this was for the benefit of the tenant for life and the remainder- man. If executing the power was for the henefit of the remainder-man , it should receive a liberal con- struction ; but if tena?it for life invades the inte- rest of the remainder-man in order to benefit his own only, it should have another construction. Lord Ba- thurst being of the same opinion, reversed a decree at the Rolls against the lessee, and directed an issue to try whether the rent reserved was the best that could be gotten. Now it is from this case that ihe rule may be extract- ed, and it ^eems to be this : thai \>here there is no fraud on DEFECTIVE EXECUTIONS OF POWERS S99 on the remainder-man, as where the former lease is abandoned, although not actually surrendered, or there is merely a defect in the mode of the execution of the power, as only one witness where two were re- quired, or a seal be wanting, or the like; in all these cases it should seem that if the lessee is in the jia- ture of a purchaser, equity yviW Te\ie\e ag-ainst the de- fective execution of the power ; but where the best rent is not reserved^ or a fine is paid contrary to the terras of the power, or the lease substantially commences in fu- turo, or the interest of the remainder-raan is, in other respects, invaded, as in the cases* of Temple v. Baltin- glass, and Sandhami'.Medwin, before cited, there it seems clear that equity cannot relieve {x) ; nor in these cases can any line be well drawn as to the quantum of excess or defect in the execution of the power. Therefore a lease to commence the day after the date of the deed, would be equally bad with a lease to commence at fifty years from the date ( 1 ). The principle that equity may aid a defective execu- tion of a power to lease, derives great support from a case before Lord Chancellor Redesdale : a tenant for ^ife, with a power of leasing, entered into a contract to grant a lease, and then died ; and Lord Redesdale enfor- ced the performance of the contract against the remainder- man. Ilis Lordship very properly considered it as the case of a defective execution of a power, and he was of {x) See Stratford -y. Lord Aldborough, 1 Ridgw. P. C. 281. (1) As io txcess in the execution of powers of leasing, vide infra, ch. 9. sect. 8. opinion 300 OF EQUITABLE RELIEF IN FATOUR OF opinion that the power ought at least to be construed as li- berally as a power of jointuring. He said that it was ob- jected that a leasing* power diflers from all the?ic cases of powers, and the dilferencc is said to consist in this, that in the other cases the remainder-man has no interest in the mode in which the power is executed ; that he claims nothing under it ; but that under the leasing power he claims the rent reserved. Now, on what ground can it be contended that that which is a mere charge upon a remainder-man, is to receive a more liberal construction than what is not a mere charge upon him, but may be much for his benefit? In the case of powers to make leases at the best rent that can be obtained, it is evident that the author of the power looks to the benefit of the estate ; and that the power is given for the benefit both of the tenant for life, and of all persons claiming after him ; for Mliere the tenant for life can give no permanent in- terest, and his tenant is liable every day to be turned out of possession by the accident of his death, it is hard to procure substantial tenants ; and therefore it is bene- ficial to all parties that the tenant for life should have a power to grant such leases. It is evident that the occu- pying tenant can aftbrd to give a better rent under such circumstances than if he were only to have a precarious tenure. This, therefore, is a power which is calculated for the benefit of the estate. Other powers, generally speaking, such as jointuring powers, and powers to make provisions for younger children, are calculated for the benefit of the family ; they may be indirectly beneficial to the remainder-man, in some respects, but they are no direct benefit to him ; nor can I conceive why these powers should be construed more liberally than powers to DEFECTIVE EXECUTIONS OF POWERS. 301 to make leases, except where it is evident that such power is abused (.r.) So ill a case before Lord Kenyon, he said that a lease not being attested conformably to thepower, could not be supported in a court of law ; yet even then, if granted for a valuable consideration, and merely defec- *tive in point of form, a court of equity would interfere and direct a proper lease to be granted (y). (x) Shannon v. Bradstrect, 1 Sch. 478; and vide supra p. 2SQ; and and Lef. 52. see Willes, 1 76. (y) Doe V. Weller, 7 Terra Rep. SE-eT. [ 302 ] SECTION ir. OF EQUITABLE RELIEF WHERE THERE IS NO MERITO- RIOUS CONSIDERATION IN THE APPOINTEE. W E have hitherto confined ourselves to the conside- ration of the cases where there is a meritorious conside- ration in the appointee, but in some instances equity will relieve the appointee against the defective execu- tion, although he is a mere stranger. This is generally on the ground of fraud. Thus, where the person inte- rested in the non-execution of the power has the deed creating the power in his custody, and the donee of the power wishing to execute it, send for the deed, which the party refuses to deliver, and thereupon the donee do an act with an intent to execute the power, equity will uphold the execution although defective, by reason of the fraud in the person who was to have the benefit of the original settlement (rt). So equity would exteiid the same relief to a case where a wife having a power of re- vocation over an estate vested in her husband, is desirous to exercise it, but the husband hinders any body from coming to her, or prevents the execution, or obstructs the ingrossing of the deed of revocation (b). On the ground of fraud also it has been decided, that although a power be defectively executed, and the court cannot relieve the appointee j yet if the remainder- (c) See 3 Cha. Ca. 67, S3, 84, 89, {b) Piggot v. Penrice, Com. 250; 93, 108, 122 J Ward v. Booth, Free. Cha. 471. 3 Cha. Ca. 69, cited j and see Tort. 333. man^ OF EQUITABLE RELIEF, &C. 303 man, with notice of the defect, has lain by a considerable time, and suffered tii« appointee to expend money on the estate, and acquiesced in his title, equity will compel him to make good the defect (c). But fraud being- a thing odious and never to be intend- ed or presumed, must be strictly proved (dj. Therefore in a case where a wife having a power of revocation over an estate vested in her husband, sent instructions to a soli- citor to prepare a deed of revocation, and the solicitor, who was a friend of the husband's, communicated the instructions to him, although he was desired to keep them secret, and delayed perfecting the deed so long, that the wife died before it was executed ; the court censured the solicitor for his conduct, but denied relief to the intended appointee, because no fraud was proved in the husband himself (ej. Under this head of fraud we may rank surprise, for to enable equity to relieve, the surprise must be such as is attended and accompanied with fraud and circumvention (/). So it is said, that a court of equity mav relieve in the cases of accident or disability. Thus in the Earl of Bath's case (5), where to the execution of the power, six v/itnesses were required, and three of them were to be peers ; the Duke of Albemarle, the donee of the power, afterwards went over to Jamaica, and it was said by Mr. Baron Powell, that in case the Duke had taken the deed over with him to Jamaica, and there had had an {<) Stiles V. Cowper, 3 Atk, 6g2 -, {d) 3 Cha. Ca. 85, 114. Shannon v. Bradstreet, 1 Rep. (e) Piggot v. Penrice, Com. 250 3 Temp. Redesdalc, 52; and see Prec. Cba.47l. Anon, Bunb. 53 ; Stratford v. (/) 3 Clia. Ca. 114, 115. Lord A'.dborough, 1 Ridgw. P. {g) 3 Cha. Ca. 68. C. 2S1. intentioa 304 OF EQUITABLE BELIEF WHERE THERE IS NO intention to revoke it, and had gone as far as he could to do it, had made his will, and had six witnesses to it, he helicved it would be a good revocation in equitj, though none of the witnesses were peers, because of the disahility he would be under to have such witnesses (A)# Lord Chief Justice Trebj, and the Lord Keeper, ap- pear to have entertained the same sentiments (i), and in a modern case, Lord Mansfield expressed himself of the same opinion (A). Lord Chief J ustice Treby, in the Earl of Bath's case, said, that the accident or impossibility of complying with the circumstances, was another ground of relief in equity, when the donee hath a plain inten- tion to do it ; but then he must do all that he can, as the case of a man's being obliged to pay or tender mo- ney at such a place, and he falls sick or lame, or bed- ridden, that he cannot go thither, and it is tendered by another by his order, or at another place ; this being an act of God, he thought it would be a good perform- ance of the condition {I), And Lord Chief Justice Holt considered accident a good ground of relief {in), as where the party was prevented by sickness. But upon noncof these points has there been any de- cision, w hereas there is a case in which a deed executed under a power, was held to be badly executed for want of a signature (which was required by the power), al- though the donee could not ivrite hy reason of the gout in his hand {n). And notwithstanding the authority of the great personages by whom the foregoing dicta were pronounced, it may be doubted whether equity ought to (rt) 3 Cha. Ca. GS. (/) 3 Cha. Ca, 89. (i) /i. go,]20. ("0 /^'. 108, 109. (Ji) Cowp. 267j andseePiggotw. («) See Blockvill v. Ascott, 2 Eq. Penrice, Cora. 266. Ca. Abr. 65g, n. {h. ) relieve MERITORIOUS CONSIDERATION IN THE APPOINTEE. 305 relieve on the mere ground of accident or disabilit}'. How can it be ascertained that, in the cases assumed, the parties had not the sickness of the donee of the power, or his absence abroad, in their contemplation ? These are circumstances of ordinary occurrence, from sickness few are exempt, and it might have been intend- ed, that during the party's absence from his friends, or whilst his mind was enfeebled by illness, the power should not be executed. II. The doctrine of election furnishes another prin- ciple in favour of the defective execution of a power, al- though there is no meritorious consideration in the ap- pointee. The foundation of election is, that no one shall claim under, and in opposition to the same in- strument ; when a man claims under a deed, he must claim under the whole deed together ; he cannot take one clause, and desire the court to shut their eyes against the rest. There is a tacit condition annexed to all provisions of this nature, that the person taking do not disturb the disposition which his benefactor has made (o). This principle applies even to interests of persons under disabilities, as infants and married wo- men ; nor is it material whether the interests are imme- diate, remote, contingent, of value, or not of value (p) ; and the rule applies as well to copyhold as to freehold estates {q). But we must be careful to distingL-ish (o) Streatfield v. Streatfield, For. (q) Rumbold v. R-imboId, Wil. 176. son V. Mount, 3 Ves. jun. 65, (p) 2 Ves. jun. 560,696, 69;; 3 I91 ; Pettiward v. Frescot, 7 Ves. jun. 385 ; Ardesoife v.Ben- Ves. jun, 541. net, 2 Dick. 463. X cases 306 OF EQUITABLE RELIEF "WHERE THERE IS NO cases of express conditions, which clearly are not cases ol election. It is well estahlished that an heir shall he put to his election where the estate is devised to him, although by the rule of law the devise is inoperative, and he takes by descent ; as if a man being seised of some lands in tail, and also of others in fee, devise the intailed lands to his youngest son, and the fee. simple estate to his eldest, who is issue in tail ; the devise to ^the eldest is void, and he takes by descent, yet nevertheless he shall be put to his election ( 7'). In the discussion of Thel- lusson V. Woodford, Sir Samuel Romilly put it as a doubtful point, whether the heir must elect where a le- gacy is given to him, and an estate to a stranger, and after the will a recovery is suffered by the testator, whereby the will is revoked, and the estate descends to the heir, and he thought that the heir could not be put to his election ; but Alexander, who was on the other side, thought it was a case of election, as was, he said, every case in which you can look at the will. The point, however^ seems very doubtful, for notwithstanding that the testator intended the estate to go to the devisee, yet the will being revoked as to the devise, although by con- struction of law, there seems to be no equity attaching on the conscience of the heir. Independently of the question of election, equity could not relieve the devisee against the revocation of the will. Where interests are given to a person, and to his chil- (r) Noys v. Mordaunt, 2 Vern. 369; and see White «y. White, 581 ; Anon. Gilb. Eq. Rep, 15 ; 2 Dick. 522, Reg. Lib. B. 1775, See Rich v. Cocktll, 9 Ves. jnn. fol. 650—655. dren MERITORIOUS CONSIDERATION IN THE APPOINTEE. S07 dren after him, the claim of the parent in opposition to the will, will not bind the children, Nvho may elect for them- selves («). In one case it seems to have been thought that an election could not be raised upon an estate set- tled with several limitations, on account of the co'ifu- sion which would ensue : the devise would sometimes be goodj at other times not, as the devisee in remainder submitted to the will or not (t), but this objection is not now attended to. At one period it was holden, that where a person sup- poses he has lawful power to dispose of an interest^ and this appears on the face of the will, it is not a case of election, as it could not be proved that he meant to dis- pose of the estate if he had known he had no pow er to dispose of it (tf) . This construction has, however, been very properly overruled (x), upon the ground of the danger of speculating upon w^hat the testator would have done had he known tiie fact. It follows from these principles, that where a man having a power to appoint to A, and the fund in default of appointment is given to B, exercise the power in fa- vour of C, and give others benefit to B, although the exe- cution is merel}'' void ( 1 ), yet if E will accept the gifts (j) Ward V. Bangh, 4 Ves. jun. (x) Whistler v, Webster, 2 Ves. 623 J see Long v. Long, 5 Ves. jun. 307 ; and see Wright v. Jan. 445. Rutter, 2 Ves, jun. 6/3 ; R.utter (/) Forrester 1'. Gotten, Amb. 388. v. M'Lean, 4 Ves. jun. 531 ; and (//) Cull V. Showell, Ambl. 7'27 ; see Doe w. Xord George Caven- Wood. App. dish, 4* Tenn. Rep. 741, note. (l) This perhaps cannot properly be called a defective execution of the power, as C was not the object of the power, but it affects the re. mainJer so as to put the party intitled to it to his election. X >i to 308 OF EQUITABLE RELIEF WHERE THERE IS NO to him, he must convey the estate to C according to the appointment {y). So where a power is to appoint to two, and he appoints to one only, and gives a legacy to the other, that is a case of election (z). Rut where there is no other fund than that appointed, the doctrine of election, which depends upon compensation, cannot apply ; as where under a power to appoint to children, the father appoints it improperly, any child may set it aside, although a specific part is appointed to him, for the doctrine of election can never be applied but where, if an election is made contrary to the instrument, the in- terest that would pass by it can be laid hold of to com- pensate for what is taken away ; therefore in all cases there must be some free disposable property given to the person, which can be made a compensation for what the testator takes away (a). To raise a question of election, the intention to pass the particular estate must appear upon the face of the instrument ; it cannot be compelled on any thing de- hors {b). But still extrinsic evidence has been allowed to shew what the testator considered as his estate, and consequently to determine what passed under a general devise so as put a party to his election (c). In all the foregoing cases we cannot fail to have ob- (y) Whistler v. Webster, 2 V^es. {c) See Pulteney v. Darlington, I Jan. 367. Bro. C. C 223 ; Pole v. Lord {%) WoUen V. Tanner, 5 Vcs.jun, Somars, Druce v. Denison, 6 ^18. Ves. jun. 300, 385; and see (a) Bristow i;. Warde, 2 Ves. jun. Wright v. Rutter, 2 Ves. jun. 33C. 6/3 ; Rutter v. M'Lean, 4 Ves. {I) Stratton v. Best, l Ves. jun. jun. 631 ; but see Forrester v. 285 J Finch v. Finch, ib. 535 ; Ckitttn, Ambl. 38gi, see Judd v. Pratt, 13 Ves. jun. 16B served. MERITORIOUS CONSIDERATION IN THE APPOINTEE. 309 served, that the interest did not pass by the instrument, but still some nice distinctions have been taken as to the legal capacity of the devisor, and the validity of the in- strument to pass the interest in case he had actually been entitled to it in his own right. This doctrine v^^as first discussed in a case of frequent reference (f/). There an infant having personal estate, of which she had ability to dispose, and a power over a real estate, to which she was entitled in default of ap- pointment, bequeathed the personalty to her only child, and appointed the estate to strangers. And Lord Hard- w icke held the appointment to be void ; and that this was not a case of election, as the will was void as to the real estate, because, as he observed in another case, (e) of her infancy, and he added, as it would if she had been a feme covert (/). 2'his was a disabilitij in the person. Lord Hardwicke said, it was like the case where a man executed a will in the presence of two witnesses only, and devises his real estate from his heir at law, and the personal estate to the heir at law, this is a good will as to personal estate ; yet for want of being executed accord- ing to the statute of frauds, is bad as to the real estate, and he said he should in that case be of opinion, that the devisee of the real estate could not compel the heir at law to make good the devise of the real estate before he could entitle himself to his personal legacy, because liere was no w ill of real estate for want of proper forms and ceremonies required by the statute. This doc- (fl?) Hearle v. Greenbank, 3 Atk. (/) See and consider Rich v. Coc- 695 : 1 Ves. 298. kell, 9 Ves. jun. 369. (e) 1 Ves. H. X 3 trine 310 OF EQUITABLE RELIEF WHERE THERE IS NO trine has been recognized, and acted upon by Lord Al- vanley (g), Lord Keiiyon (A), and Lord Eldon (/) ; for ahhougli the will cannot be read without the devise iu iij yet, as Lord Alvanley correctly ex}>ressed it, a judge can say, for tlie statute of frauds enables him, and he is bound to say, that if a man by a will unattested gives both real and personal estate, he never meant to give the real at all (k). Lord Hardwicke, however, determined, that where an express condition is annexed to the personal legacy, the heir at law must make good the d. vise of the n^alty, or give up his legacy (/) ; and although this distinction has been constantly disapproved of, yet it has always been acted upon, and cannot now be disturbed (m) (1 ). Q) Ex pane the Earl of Ilchester, (k) Buckeridge %>. Ingram, 2 Ves. 7 Vcs, jun. 3/2. jun. 666. (A) Carey v. Askew, 8 Ves. jun. (/) Boughton v. Boughton, 2 4g2, cited b)^ Roniilly ; and in Ves. 12. the argument of Thellusson and - (m) Carey v. Askew, Sheddon v. Woodford^ infra, MS. Goodrich, ubi sup. ; and Thcllus- (i) Sheddon v. Goodrich, 8 Ves. son i;.Woodford, infra. jun. 481. A point CIJ In Thellusson's case Lord Erskine said, the general case of election is good. As to the exceptions, an infant may bequeath his personalty, but not so as to his realty. An infant having real and personal, and bav- in? both capacity and power to bequeath the personalty, gives the per- s^ilty under the idea that he can dispose of his realty ; row I conceive, ■with submission, that the infant's will maybe read. If I bad originally had to decide this point, I would have held it a case of election j so of a feme covert, I want to know why the hnsband should not be put to his election j I cannot see the common sense of that exception, but I am bound by authorities j 8o where a will is executed in the presence of two witnesses, why should it be read so as to give the heir the personalty ? I would 3IEaiT0RI0US CONSIDERATION IN THE APPOINTEE. 311 A point lately arose in the great cause of Thellusson and Woodford (;7), which again called this doctrine into C|uestion. Thellusson by his will duly executed to pass real estates, gave legacies lo his heir at law, and direct- ed that all contracts for the purchase of estates, which he should enter into before his death, should be coiii- pleted by his trustees, who should stand seised thereof to the uses mentioned in his will. He did purchase estates, and did not republish his will. Same were ac- tually conve) ed to hiiii, the contracts for others remain- ed in fieri. The question was, whether the heir should be put to his election. The case was elaborately ar- guad. The principal argument for the heir at law was, that there was no case in which the heir at law was put to his election as to estates which came to him as heir. This was strongly urged, and the case was distinguish- ed from cases of express conditions ; and it was neatly argued, that there were three requisites to a devise, 1st, age ; 2d, possession ; and 3d, three witnesses ; and that any will in which aity of these was wanting was void, and not a case of election. Well, here the second was wanting, and the question of election could not arise any (/i) See 4Ves. jun.235— 237. *• would never have given him the legacy. How pure the laws of England would be were it not for these subtleties ! But 1 dare not decide this case against the authority of Lord Hardwicke. MS. In Carey y. Askew, as stated by Sir Samuel Romilly, Lord Kenyon said, he should have found it difficult to distinguish the cases ; but he felt himself bound by Lord Hardwicke's decision, although he thought Boughton v. Boughton wrong. It was settled that the heir could not be put to his election without an express condition, and you cannot prawTWff a condition. Ex- press conditions were not like this case. MS. X 4; more 512 OF EQUITABLE RELIEF WHERE THERE IS NO more than if the devisor had been an infant. On the other side it was insisted, that there being no disability in the person of the devisor, this was a case of election. Suppose a legacy to be given to a stranger, and a le- gacy to the heir, and a devise of the stranger's estate to a third person ; that it was said was a case of elec- tion. Then "upposc the testator to purchase the estate, how, it was asked, could that be said not to be a case of election. Lord Chancellor Erskine rightly determined that the heir should be put to his election(o). A person is never put to his election till the funds are clearly ascertained, so that he may know exactly what he is to receive as a compensation for that which he gives up (p) ; and the party may file a bill to have the state of the fund ascertained (q). Where the state of the fund is free, and the party has acquiesced a long time, he will be held to have elected, although he has not ex- pressly done so (r), but where the fund is embarrassed, a long acquiescence has been held not to bind the clai- mant (5"), and a fortiori the mere j-eceiptof gifts under the will for a short period will not have that eft'ect {t) ; and where a widow released her dower, and elected to take under her husband's willj and the provision for her was afterwards claimed by creditors, she was allowed to resort to her dower, notwithstanding her election (u). (o) Thellusson v. Woodford, Aug. 1806, MS. (p) Wake V. Wake, 1 Ves. jun. ; and see 2Ves. jun. 3/0, (j) Butvicke v. Broadhurst, 1 Ves. jun. 171, 3 Bro. C. C. 88. (r) Butricke v. Broadhurst, ubi sup. Ardesoife v. Bennet, 2 Dick. 463. (5) Beaulieu v. Lord Cardigan, Ambl. 533, 6 Bro. P. C. 232; see 1 Ves. jun. 172, 336; Yate V. Mosely, 5 Ves. jun. 483, 484. (t) Wake V. Wake, 1 Ves. jun. 335 ; Rumbold v. Rumbold, i Ves. jun. 65. (u) Kidney -u, Cousmaker, 12 Ves, jun. 136. If MERITORIOUS CONSIDERATION IN THE APPOINTEE. 313 If the party has mortgaged the interest he takes in his own rightj and then is suffered to elect to take un- der the will^ the mortgage must be satisfied out of the interest provided for him by the will (a;). Where the claimant is an infant, or feme covert, it is usually referred to the master to see which is most for their benefit, to take under or against the will, but where the interest given by the will is manifestly a better inte- rest, no reference will be made {y). Where a person elects to take in opposition to the will, the interest given to him will be applied in compensa- tion of the disappointed devisees (%), But the estate thus taken in opposition to the will, of course vests in the party with all the leg;al consequences attached to it. Thus where a tenant in tail devised away the estate, and gave the issue in tail, w ho was a married woman, and also her husband, other benefits by his will, she elected to take her estate tail in opposition to the will, but her husband of course took under the will, then his wife died, and he entered as tenant by the curtesy ; and it was contended, that as he took under the will, he could not claim in opposition to it ; but it was ruled, that his wife took the estate with all its legal incidents, and that con- sequently he was entitled to be tenant by the curtesy in right of her seisin, although he claimed under the will in his own right {a). Closely allied to election, is the doctrine of satisfac- tion : where the interests of the objects of the power are (or) Rumbold v, Riimbold, 3 Ves. (z)Anon. Gilb. Eq. Rep. 15; Ward jun, 65. V. Baugh, 4 Ves. jun. 627. (y) Wilson r. Lord John Town- (a) Lady Cavan v. Pulteney, 2 shend, 2 Ves, jun. 693. Ves. jun. 544; 3 Ves. jun. 384. satisfied 314 OF EQUITABLE RELIEF WHERE THERE ISj &C. satisfied by the done' of the power, tlieir claim on the fund ceases (/;). As this question,, however, seldom arises upon powers, and as the doctrine ofsalisfactian is already discussed by other writers, I shall i ot stop to enquire what is in equity deemed a satisfaction. But it may be remarked, tliat as in cases of election, so in cases of satisfactioii parol evidence is admissible, to shew that the testator considered the property subject to the power as part of his own property (c). And to create a case of satisfaction, agift must move from the person him- self. Therefore, if a man having: a charg;e on his estate, and also a power over his wife's estate, both in favour of his child, appoint a sum to be paid to the child out of his wife's estate in satisfaction of the charge on his own, the declaration as to the satisfaction will be entirely void (d). Satisfaction can never be presumed where the in- tention of the donor is expressly stated, as w here a man by his will appoints a portion under a power, and gives an annuity out of his own property to the same child, and then upon marriage gives the child a portion, which he declares to be in satisfaction of the annuity given by the will, no presumption of satisfaction can be raised as to the portion appointed under the power (e). (b) Smith V. Lord Camclford, 2 (d) Roberts v. Dixall, 2 Eq. Ca. Vcs. jnn. 69s ; Folkes v. West- ern, 9 Ves.Jun. 456, see post, (c) Hinchliffe v. Hincblifie, 3 Ves. jun. 516; and seeDruce -D-Dcni- son. 6 Ves, jun. '30Q Abr. fids, pi. 19. See the case in ch. 9, s. 8, infra, {e) Burges i>. Mawbey, 10 Ves. jun. 319. SECT. C 315 ] SECTION III. OF NON-EXECUTION. OoME of the cases in the preceding section are in strict- ness, cases of non-execution^ where the remainder-man is compelled to make good the disposition, on the ground of fraud or election ; but putting aside these cases, al- though equity will, as we have seen, in favour of a pur- chaser, creditor, wife or child, supply the defective execution of a power, yet it is an immutable rule, that a non-execution shall never be aided {a). It is no ground for relief that the party intended to exercise his power, but was prevented by sudden death (&). We have seen that where a man has a general power of appointing a fund, and he exercise thepov.er in favour of a volunteer, equity will in exclusion of the appointee, seize upon the fund as assets for the payment of the debts of the person executing the power, but if the party wdll not execute the power, the court cannot compel him to do so, nor can it affect the fund subject to the power, in favour of the creditors, for that would be against the nature of a power which is left to the free will and election of the party to execute it or not, for which reason equity will not say he shall execute it, or do that for him which he (a)Arundell v. Philpot, 2Vern. 69; dy, 1 Ves. jun. 272. Tomkyn v. Sandys, 2 P. Wms. (l) See Piggot v. Penrice, Com. 229, n. Wilm. 23 ; Bull v Var- 250 3 Gilb. Eq. Rep. 138. dees 316 OF NON-EXECUTION. does not think fit to do himself (c). This may secnr rather a refined distinction, but it is well establish- ed fd). But in laying down this broad rule, we must be care- ful to distinguish between mere powers, and powers in the nature of trusts. The distinction between a power and a trust, is marked and obvious. " Powers," as Lord C, J. Wilmot has said (e) '* are never imperative : they leave the act to be done at the will of the party to- whom they are given. Trusts are always imperative, and are obligatory upon the conscience of the party in- trusted." But sometimes trusts and powers are blended ; a man may be invested with a trust to be effected by the execution of a power given to him, which is in that case imperative; and if he refuse to execute it, or die with- out having executed it, equity on the general rule that the trust is the land {f), will carry the trust into execu- tion, at the expense of the remainder-man, and without any regard to the person in whose favour it is to be exe- cuted, being a mere volunteer, and not a purchaser, creditor, wife or child. This is the case where a 'power is given by a will to trustees to sell an estate, and apply the money upon trusts. The power is in the nature of a trust. The legal estate, until the execution of the power, of course descends to the heir at law (g), and if the power be defeated at law, by the death of the person to (c) Per Master of the Rolls, in (/) See Burgess v. Wheate, I Toilet V. Toilet, 2 P. Wms. Blackst. 162, per Lord Mans- 489- field, {d) Holmes v. Coghill, 7 vts. Jun. {g) Warneford -^.Thompson, 3Ves. 499, 12 Ves. jun. 206;Hixon v. jun. 5133 Hilton v. Kenworthy, 3 Oliver, 13 Ves, 114. East,553; and see Co. Litt. 236 a. (e) Wilm. 23. whom OF NON-EXECUTION. SIT whom it was given, the legal estate would remain in the heir at law for his own benefit, but equity, by reason of the trust, will compel the heir to join in the sale of the estate for the purposes designated by the testator (h) ; and on the same principle, the same equity is extended to those cases, where although in words a power is given, yet it never arises by reason of the testator having omitted to appoint some person to execute it ( i). The question whether a power is simply such, or a pow- er in the nature of a trust, frequently arises on a power to appoint to children {k). In Brown v. Higgs (Z) Lord Eldon stated the principle of all the cases on this subject to be, that if the power is a power which it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee, for the exercise of the power, and not as having a discretion whether he will ex- ercise it or not ; and the court adopts the principle as to trusts, and will not permit his negligence, accident or other circumstances, to disappoint the interests of those for whose benefit he is called upon to execute it. In Harding v. Glyn {rii)j Harding devised certain arti- {h) Garfoot v. Gaifoot, 1 Cha. Freem. 134, I Lev. 304-, vhlch Ca.35 ; Gwilliams v. Rowel, Hard, was against the trust, but reversed 204 J Auby v. Doyl, 1 Cha. Ca. in Dom. Proc. and see Carvill .v. 180 cited, reported in 1 Cha. Rep. Carvill, 2 Cha. Rep. 156. 89j nom. Amby v. Gower, and see (k) See Jones o). Clough, 2 Ves. Witchcot V Souch, 1 Cha. Rep. 367, and see 5 Ves. jun. 856. ©7. (Z) 8 Ves. jun. 574. (i) Hyer v. Wordale, 2 Frecm. (m)l Atk. 469; S. C. stated from 135, cited J Locton -y. Loeton, 2 the Register's book, 5 Ves. jun. Freem. 136; Pitt v Pelhatn 1 Cha. 501 ; 8 Ves. jun. 571, from Mr. Ca. i;6, 1 Cha. Rep. I4g, 2 JoddreU's note. cles SIS OF NON-EXECUTION. cles to his wife;, " but did desire her, at or before her death, to give the same unto and amongst such of his own relations as she should tliink most deserving and approve of." The Master of the Rolls held this to be a trust for the relations, in default of appointment. He said that it operated as a trust in the wife, by w^ay of power, of naming and apportioning, and her non-perform- ance of the power should not make the devise void, but the power should devolve on the court. So in (tt) Brown v. Higgs, a leasehold estate was be- queathed to A ; and after directing him to pay certain sums, the testator empowered him to employ the residue of the rent to suchchildreu of my nephew SamuelBrown, as the said A shall think most deserving, and that will make the best use of it;" and this was considered, in de- fault of appointment, as a trust for all the children. This decree was affirmed by LordAlvanley, M. II. , on a rehearing(o)and also by Lord Eldon, upon anappcal(j)). But very nice distinctions are taken in these cases. Thus in the Duke of Marlborough v. Godolphin (g) A devised a legacy of SO,COOZ. to his wife for life, " and after her decease to be divided and distributed to, and amongst such of his children, and in such manner and proportion as she by any deed, &c. should direct and appoint, and for no other purpose whatever." Lord Hardwicke held it to be a mere power, and not a trust in) Brown v. Higgs, 4 Ves. jun. C. 588, and 4 Ves. jun. 79^^ 709. n. (a) ; Davy v. Hooper, 2Vcrn^ (o) 5 Ves. jun. 4g->. 065 ; 1 Bro. P. C- 351 (/)) J8 Ves- jun. 501 ; and see Paul (y) Duke of Marlborough v. Go" r. Compton, ibid 376 j Cruwys dolphin, 2 Ves. 6l ; 5 Ves. jun. V. Colnian, Q Ves. jun. 3 1 9 j and 506, staled from Reg. Lib- S. C. sec Madoc v. Jackson, 2 Bro. C. MS. for ^ OF NON-EXECUTION. 319 for the children, iii default of appoiatment (?'). He appears to have drawn a distinction between a bequest, *' amongst my children, as A shall appoint," which he considered as a trust, and a bequest amongst such of his children," &c. which he lieid to be a mere power. He considered the power in the principal case, as given to secure her the respect of her children. In Brown v, Higgs, upon tiie appeal. Lord Eldon observed, that the Duke of Marlborough v. Lord Godolphin, was certainly very difiicult to reconcile with Harding v. Glyn, or with the case before him. But the question was not, whether one case was to be reconciled with others, but, whether all the cases had gone upon a principle, which professed to save whole, Harding v. Glyn, Lord Ilardwicke in the Duke of Marlborough v. Lord Godolphin, did not say, that, wliere there is a power, and it is made the duty of the party to execute it, and he would not execute it, in such a case this court w^ould not act : but he collected from the scope and object of the disposition in that case, taken altogether, the opinion, that it was a case in which the person having a power to dispose of the sum of SO, 000/. had a mere power, not clothed with any dut}^ requiring her to execute it; and therefore as to what was not disposed of, the court could not interfere (s). In another passage his Lordship said, that, the case of Harding v Glyn, could not be got rid of by saying it was a singular case, and that it was difficult to reconcile all subsequent cases with it; for that case had been treated as a clear authority, probably for the whole, cer- (r) And see Bull v. Vardy, 1 Ves^ jnn. 270; Target v Gaunt 1 P. Wins. 432. [s) 8 Ves. jun. 569, 5/0. tainly 320 OF NON-EXECUTION. tainly b} his own experience, for a very considerable part of the time elapsed since that j udgment was pro- nounced. In the before-mentioned case of Brown v. HiggSj one estate was devised, " to one of the sons of my nephew Samuel Brown, as he shall direct by a conveyance in his life-time, or by his will." This point did not call for a decision, but Lord Alvanley seemed to think it a mere power. Lord Eldon's opinion cannot be easily ascer- tained (t ). There is a class of cases where the bequest is con- sidered not as a power in the nature of a trust, but as a power with a bequest over to the object of it in default of appointment, by implication. In many instances it is difficult to distinguish the cases. Thus in Mason v. Limbery (w), a bequest to A for life, whom the testator " desired at his death to give it amongst his children, and the children of his said daugh- ter, as he should think fit," was holden by Lord Talbot to be a devise to the children in default of appointment, and the childjen were accordingly decreed to be entitled to the fund, although A died in the life-time of the tes- tator. And there are other cases to the same effect (ar). (t) 8 Ves. jun. 576. fromLib. Reg. ; Reade v, Reade, {u) T. Term 1734, MS. 5 Ves. jun. 744; Longmore v. (x) Witts. V. Boddington, 3 Bro. Broom, 7 Ves. jun. 124. C. C. 95 : 5Ves. jun. 503,«tated CHAP. [ 321 ] CHAPTER VJI. OF RELIEF AGAINST THE ACTUAL EXECUTION OF POWERS. SECTION I. OF VOID EXECUTIONS BY THE GENERAL RULE OF LAW. i-N the last chapter we considered in what cases a de- fective execution of a power would be supported, and we are now to enquire in what instances the actual exe- cution of a power may be set aside^ although the solem- nities required by the deed creating the power have been duly adhered to. This our present enquiry may be divided into two branches j 1. Where the instrument may be avoided at law. 2. Where equity only can re- lieve. And first, an instrument executed under a power may be avoided at law on the same grounds as deeds in ge- neral may. To enter into the consideration of all the rules on this head would be an unpardonable digression, but their leading features, with reference to cases likely to arise upon the execution of powers, may, perhaps, without impropriety, be here stated. They form a link in the chain of our subject. If then an instrument be altered by rasure or other- wise in t material part by the person for whose benefit Y it OF VOID EXECUTIONS AT LAW. it was intended, the deed becomes absolutely void (a). The opinion formerly Mas, that a rasure by a stranger, would have the same operation (&); but it hath lately been very properly decided otherwise (c) ; for it should seem that the true ground of the rule is the fraud of the party interested. And since the statute of frauds {d), the mere cancellation of an instrument will not defeat the estate created by it(e). If a power be executed as a consideration for stifling a prosecution for perjury, the execution is merely void : non est factum may be pleaded to the deed at law, and the special matter given in evidence (/), although the opinion formerly was, that equity only could relieve where the consideration did not appear on the face of the deed. So an execution of a power as an inducement to a woman to live with the party in a state of prostitu- tion, is void (g), but where it is a compensation for the loss of virtue after cohabitation, or, as it is termed, -prce- nmim jmdicitice, the consideration is good, and the deed cannot be avoided (Ji), unless the nian was married at the time of the cohabitation, and the woman was aware of this fact (i), or unless, according as it should scero to Lord Hardwicke's opinion^ the woman was previously {(t) Whelpdalc's case, 5 Rep. 1 1 9, a. ih) Pigot's case, 1 1 Rep 17 > a. {c) Henftee -v. Bromley, 6 East, 310. {d) 29Car. 2. c. 3, s. 3. (e) M'^Gcnnis v. M'Cullougli, Gilb. Eq. Rep. 235 5 Roe v. Archp. ofYork,<5Ea6t 86; and see Leech v. Leech, 2 Cha. Rep. 52, which was before the statute. (/) Collins V. Blantern, 2 Wils. M7] and see Edgecombe v.Rodd, b East, 294. (^) Walker v, Pcikins, 8 Burr. 1568. (A) Marchioness of Annandale v, Harris, 2 P. Wms. 432; Tur- ner v. Vaughan, 2 Wils. 339; Hill V. Spencer, Arabl. 641. (i) Priest v. Parrot, 2Ves. l60i and see Lady Cox'» case, 3 P. Wms. 340. to OF VOID EXECUTIONS AT LAW. ^23 to the intimacy a prostitute (^) ; but in a later case. Lord Camden held clearly, that there was no princi- ple even in equity, which says a man may not make a voluntary provision for a common prostitute, and he made a decision accordingly in a case, the circumstances of 'which were well calculated to put the rule to the test (Z). So an execution in consideration of the appointee pro- curing a marriage between the donee of the power and another person is void ( m) ; and in like manner, the deed maybe avoided whenever the consideration for executing it is such as the policy of the common law rejects, or as the statute lavr forbids. If the deed be executed under duress, it is voidable, but not actually void, consequently the party may avoid it by special pleading, but cannot plead no?i est factum^ and give the special matter in evidence [n). There are only two other cases which I shall here no- tice—drunkenness and lunacy. As to drunkenness, the distinction seems to be, that the instrument cannot be relieved against, unless the party was drawn into drink through the management or contrivance of him who gained the deed (o), in which case the deed is abso- lutely void, both at law and in equity, and consequently non est factum may be pleaded to it at law, and the drunkenness by the fraud of the plaintiff may be given in evidence [p). {k) See Qarke v. Periam, 2 Atk. Treat. Eq. book l, ch. 4. s. 10 j 333,337. and Fonblq. notes, ibid. (/) Hill V. Spencer, Ambl. 6A\. (n) See Bull. N. P. 1/2. (m) Stribblehill, v. Brett, Free. (0) Johnson v. Medlicott, 3 P. Cha. 165, 2 Vern. 445; re- Wms. I31,n. versed in Dom, Proc, j see l (/>) Col**, v. Robbins, Bull. N. P. 172, r 2 As 324 OF VOID EXECUTIONS AT LAW. As to lunacy, although the deed may be set aside by the committee of the lunatic, or by his heirs after his death ; yet it is incontrovertibly established, that the party himself cannot, after he has recovered his senses, plead his lunacy in avoidance of the deed (<7). But a distinction has been established by the case of Yates v. Boen (r), which does not appear to have been attended to by writers on this subject, although they refer to the case. To debt upon articles, the defendant pleaded non est factum ; and upon the trial, olfered to give the lu- nacy in evidence. The Chief Justice thought it ought not to be admitted upon the rule in Beverley's case, that a man shall not stultify himself; but on the authority of Smith t;. Carr, 6th July 1728, where Chief Baron Pengelly in the like case admitted it, and on consider- ing the case of Thompson i;. Leach, the Chief Justice permitted it to be given in evidence, and the plaintiff upon the evidence became nonsuit. Nov/ the history of this revolution in this branch of law is this, when Be- verley's case M as decided, it was holden that deeds exe- cuted by lunatics were voidable only, but not actually void, and therefore they could only be set aside by spe- cial pleading, and by the rule of law the party could not stultify himself. And Mr. Justice Blackstone, fol- lowing the old rule, has laid it down that deeds of lu- natics are avoidable only, and not actually void (s). But n Thompson v. Leach, this distinction was solemnly established, that a feoffment with livery of seisin by a. lunatic, because of the solemnity of the livery, was void- (9) Beverley's case, 4 Rep. 123, b. . (r) Yates v. Boen, 2 Str. 1104. Stroud V. Marshall, Cro. Eliz. (0 2Comm. 29I. CqS. iibls OF VOID EXECUTIONS AT LAW. 325 able only, but that a bargain and sale, or surrender, &c. was actually void (t). This then was the ground of the decision in Yates v. Boen. When the Chief Justice remembered that an innocent conveyance or deed by a lunatic was merely void, he instantly said, that non est factum might be pleaded to it, and the special matter given in evidence; and this applies strictly to deeds executing powers. But in the case of a feoffment with livery of seisin^ the rigorous rule of law still prevails, and the party caimot stultify himself. (/) Comb. 46s. Y 3 SECT. C 326 3 SECTION II. OF VOID EXECUTIONS IN EQUITY ONLY. JlSut there are some cases which a court of law cannot reach. This happens where the power is duly execut- ed according to the terms of it ; but there is some bargain behind^ or some ill motive, which renders the execution fraudulent, and will enable equity to relieve. It were difficult to draw the precise line between the jurisdiction of law and equity on this head. The sub- stantial ground upon which equity maintains almost an exclusive jurisdiction in cases of fraud is, that it is enabled to mould and cut down the fra.udulent instru- ment according to good conscience ; whereas a court of law, if it take conczance of the subject, must entirely defeat the instrument : it cannot maintain the execution, so far as it is withir the meaning of the power, and set it aside so far only as it is a fraud on the authority ; but where the execution is altogether a fraud on the power, it may be asked, why, if you can once attack a deed executed under a power on the ground of fraud, may not that fraud be established at law as well as in equity. For this the case of Collins v. Blantern (a) is a strong authority. It is not impossible that it may be esta- blished, that whatever is a iotaWy fraudulent execution of a power may be taken advantage of in either court. It has never been decided that a court of law cannot enter into the consideration of the fraud ; and until (a) Collins v. Blantern, 2 Wils. 347-. Collins OF TOID EXECUTIONS IN EQUITY. 327 Collins V. Blantern was decided^ it was the general opinion, that a court of law would not advert to a con- sideration, unless it appeared on the face of the in- strument. In the case of Butcher 7j. Butcher (b), a question arose^ whether, under a power to appoint to children, equity could relieve against an appointment under which a share merely illusory was given to one child. The Master of the Rolls said, in terms the power, though limited as to objects, is discretionary as to shares. A court of law says, no object can be ex- cluded : but there it stops. It does not attempt to correct any the extremest inequality in the distribution ; and yet, if that is a fraudulent execution of the power, why is it not void at law ? A fraudulent act has no more vali- dity in a court of law than in a court of equity; and if it is not a fraudulent execution, upon what principle does a court of equit}' deny it effect ? It is sometimes said, this court interferes for the purpose of carrying into effect the intention of the party creating the power ; who must have meant, that each object should derive the same real benelit from the execution of the power. Now, every instrument must receive the same con- struction from every court. Whatever is its true mean- ing must be its meaning every where. If then the true meaning of the power, however discretionary in terms, be, that each object shall have w hat is called a sub- stantial share, it is not executed according to its true meaning, and therefore is not well executed by an ap- pouitment that does not give to each object a substan- tial share. A court of equity may, in the exercise of its own particular jurisdiction, supply defects in the {I) Butcher v. Butcher, Q Ves. jun. 382 j and see 1 Burr. 125. y 4 execution 328 OF VOID EXECUTIONS IN EQUITY, execuiion of a power. But I cannot understand how the question, whether a power is well or ill executed;, can receive different determinations in different courts. If it is not executed according- to its true import, how can a court of law say, it is well executed ; and if it is exe- cuted accordins^ to its true import, how can a court of equity say it is ill executed ? Upon questions like that in the last case, the juris- diction exercised by equity is infinitely more strong than the common relief in case of fraud. If a man, having a power to appoint to A or B, appoint to A, in considera- tion of a sum paid by him, equity Vt'ill relieve against the fraud, and the courts of law might perhaps refuse to interfere, on the ground that they have not the same means of inforcing the discovery of fraud, and of reliev- ing against it. But where, as in Butcher v. Butcher, a man has a power over a fund, which it is admitted will at law enable him to give any share, however trifling, to one party, and he without fraud exercise that power accordingly, equity, by interposing its au- thority, actually puts a different construction on the instrument to what it must receive in a court of law ; and yet, if a power give a clear right to appoint to se- veral persons, or to any of them exclusively of the others, equity can grant no relief against the bona fide exercise of it in favour of some of the objects, exclud- ing the others. But however strange this doctrine may seem, it is well established that where the power does not authorise an exclusive appointment, equity will re- lieve against any appointment of an illusory share, al- though this relief is now very confined (c). (c) Vide infra, ch. 9. s.4. I now OF VOID EXECUTIONS IN EQUITY. 323 I ROW proceed to state the cases of fraud in which equity has relieved : If a person, having a power of jointuring;, execute it in favour of his wife, but it is agreed between the parties that the wife shall receive part only of the jointure for her own benefit, and that the residue shall be applied for the husband's benefit, equity will set aside the execution of the power, so far as it is in favour of the husband himself, on the ground of its being a fraud on the power and those creating it (1). And no confirmation by the wife after the death of the husband will avail, as the ground of relief is the fraud on the remainder-man (d). So if there is a power to make a jointure under re- strictions, as lOOZ. a-year for every lOOOZ. and the hus- band himself advance a sum of money in order colour- ably to enable him to make the larger jointure, the court win reject such part as is more than proportional {d) Lane v. Page, Ambl. 233. facts stated from Reg. Libi Aleyn Note, this was a case of rank v. Belchier, Reg. Lib. A. 1757, fraud; see Appen. No. 8; the fol.432, (B); App. No. p. (l) The late Mr. Justice Ashurst, when at the bar, said, arguendo, " Fraud, particularly in the case of powers, is cognizable in a court of law ; Lane v. Page, T. 27. Geo. 2. B. R. A power given for one pur- pose shall r.ot be exercised for another, though within the letter of the power," 1 Blackst. 619. If the court of King's Bench held the execu- tion bad in Lane v. Page, that case would be an important authority with reference to the doctrine discussed at the opening of this section. No notice is taken in Reg. Lib. of any proceedings having been had at law ; and from the circumstance of the plaintiff at law having been also plaintifFin equity, it would seem that he did not prevail at law. I shall make a point of searching for the case at law before the work is printed off. See Appendix, No. 8. to 330 OF VOID EXECUTIONS IN EQUITV. to the real fortune (e). But in these cases equity will not set aside the whole settlement^ but merclj that part which is infected with fraud (/). Again, where a father, having an exclusive power of appointing to children, with the consent of a trustee, prevailed on the trustee to join in appointing the estate to the youngest son, by representing the eldest as un- dutifal and extravagant, upon a bill by the eldest son to set aside the appointment, it was decreed accordingly, uponproof of the plaintiff being dutiful and not extra- vagant, and that the father had misrepresented him ; and although the trustee's evidence was admitted, yet Lord Hardwicke refused to admit the father's evidence to prove the plaintiff's undutifulness and extravagance. The power was treated as a trust to be executed w ith discretion, and the father being charged with a breach of trust, could not be allowed himself to prove the un- dutifulness and extravagancy of his son^ upon which the cause depended (g) (1 ). So if a parent, having a power to appoint the estate unto any of his children, exclusively of the others, ap- (e) See Ambl. 235, 239. {s) Scroggs v. Scroggs, Arabl.272. (/") Lane v. Page, Aleyn i;. Bel- App. No. 10; the facts stated chier, ubi sup. from Reg. Lib. (1) In this case, the reporter says, that Sir G^o. Downing v. Bagnal, 6ih and 7th July 1753, was cited for the plaintiff. The case, however, does not relate to the question, and must have been cited merely to shew the effect of concealment. The case is in Reg. Lib. A. 1755 fol. Q5. The facts in the register's book led me to discover that the case is reported by Ambler himself, by the name of Downing v. Townsend, 280, 592. point OF VOID EXECUTIONS IN EQUITY. 331 point to one, upon a bargain made beforehand with that child, that he shall pay a consideration for it^ equity will relieve against the appointment (Ji) ; and the same relief would be administered even against a pur- chaser, if he had notice of the fraud. This is a point which daily arises in practice. The parent first sells the estate, and then executes an appointment to one child, in order to enable him to make a title ; and in many instances purchasers are justly alarmed, lest, if there should be any underhand agreement, the transaction itself would be deemed notice of the fraud. But where the money is paid to the father and son, and there is nothing to shew that the son was not to receive his due proportion of it, the purchaser may safely complete his contract, unless he has notice of some underhand agree- ment. This was decided in the lafe case of M 'Queen v, Farquhar (i), where, under an exclusive power of ap- pointment, a father appointed to one son in fee, and then the father and his wife and the son joined in con- veying to a purchaser, and the money was expressed to be paid to them all. The title was objected to on the ground of an opinion, by which it appeared, that the father first sold the estate, and then the appointment was devised to make a title, and the purchase deed re- cited, that the contract was made with the father and son. It was insisted, that if the father derived any be- nefit from the agreement, or even made a previous sti- pulation that his son should join him in a sale, which there appeared the strongest reason to apprehend, it would have been a fraudulent execution. But Lord (h) See 1 vol. Ca. and Opiu. 34 ; (») M'Qucen «. Farquhar, 11 Ves. and see 1 Ves. jun. 310. jun. 46/. Eldon 332 OF VOID EXECUTIONS IN EQUITY. Eldon over-ruled Ihe objection, as it did not appear that the estate sold for less than its laJue, or that the son got less than the value of his reversionary interest, but merely that he as the owner of the reversion ac- ceded to the purchase. So where a party^ taking; under a power, has notice of an agreement for valuable consideration not to execute the power, or of what is tantamount to such an agree- ment, equity will relieve against the execution. Thui in the case of Srrope v. Offley U){^)» ^ tenant for life, with a power of jointuring, conveyed the estate on his marriage as if he was seised in fee, and covenanted against incumbrances done or to be done. He after- wards married a second wife, and after marriage li- mited a jointure to her by virtue of his power, she Jiavifig notice of the first settlement, and Lord Chan- cellor King relieved against the execution of the power, at the suit of the issue of the first marriage, and his decree was affirmed in the House of Lords. But the most remarkable instance of the interference of equity remains to be stated. The precedent was established by Lord Keeper Wright, in the case of Chadwick v. Doleman (A:). A power was given to a parent, tenant for life, to appoint a sum of money for younger childrens portions, to be raised after his death, which in default of appointment was to be equally di- 0*) 4 Bro. P. C. 23/3 ' see 2 Atk. 567 i 2 Burr. 1145. (k) 2Vern. *28. (1) In Barnard. Rep. Cha. 112, it is said, that the covenant in this case was construed to be a release. But however this may be, the prin- ciple in the text is clear. vided OF VOID EXECUTIONS IN EQUITY. 833 vided amongst them, and the estate itself was settled on the first and other sons in tail. There being several younger children of age, the father appointed the money amongst them, and gave a particular sum to his second son, who was of age and under a treaty of mar- riage. This son afterwards became eldest son, and as such intitled to the estate itself, and thereupon the fa- ther made a new appointment of the portion given to him. The Lord Keeper admitted, that the second son, at the time of the appointment, was a person capable to take, and Vvas a younger child within the power of appointing ; but was of opinion that this was a defeasi- ble appointment (as he was pleased to term (1) it), not from any power of revoking, or upon the words of the appointment, but from the capacity of the person. He was a person capable to take, at the time of the ap- pointment made, but that was sub modo, and upon a tacit or implied condition, that he should not after- wards happen to become the eldest son and heir ; so that he had, as it were, only a defeasible capacity in him, and he decreed accordingly. He added, that al- though the appointment had been made in consideration of marriage, it would have been the same thing. Lord Talbot appears to have approved of the fore- going decision (I); and in a case before Lord Hardwicke (m), he entirely adopted it. He said that Lord Cowper [^gw. Wright] went plainly on this ; he (Ld. Cowper) found (/) See Jermyni;. Fellows, For. 93. (m) Teynham w. Webb, 2 Ves 198. (1) This is the expression of Vernon the Reporter, from which it should seem that he did not approve of the decision. it 334 OF VOID EXECUTIONS IN EQUITY. it established by the precedents and authorities of this court, that the words younger children had received a prodigious latitude of construction to answer the occa- sions of families ind intent of the parties, often con- struing an eldi;st daughter to be a younger child, that is, carryiiig the ^vo^ds very muth out of the natural into a foreign and remote sense, to answer the intent : and he found it determined, that an only daughter, though not younger in comparison with another, should be considered as a younger child, where a provision was made for the younger children, and no other provision, and the estate limited to go over ; and there have been cases, where a younger son becoming an eldest, under certain circumstances, has been considered as an eldest, to exclude him from the benefit of the portion ; and therefore the rule laid down by Lord Harcourt in Beal V. Beal (?z) has been, that younger children shall be considered such, as do not take the estate, are not the head and representative of the family : Lord Cowpcr having found this, from thence inferred a tacit condi- tion, that the capacity of being a. younger son should continue until the time of payment came, and therefore made that determination, though the father had ac- tually executed his power. Taking it in ahstracto, merely as an execution of a power, it could not possibly be maintained upon the general rules ; but the ground Lord Cowper went on was, that the continuing of the capacity to the time of the provision taking efl'ect in point of payment, was a tacit or implied condition going along with the appointment. CHAP. [ S35 ] CHAPTER VIII. OF RELIEF AGAINST POWERS. SECTION I. OFTHE RELIEF AFFORDED BY TJSE 27 ELIZ. C. 4. AGAINST POWERS OF REVOCATION. W E have seen m how many instances the execution of powers will be relieved against ; we are now to proceed a step further, and to enquire in w hat cases powers them- selves w ill be set aside. I do not here speak of a power void in its V€ry creation, as where the object of it is a pt'rpetuity, or of a power not well created, but of powers well created, and which may in the first instance be le- gally executed ; and this relief is given by the statute of 27 Eliz. c. 4, whereby it is enacted, that if any person or persons shall make any conveyance, gift, grant, de- mise, limitation of use or uses, or assurance of, in, or out of, any lands, tenements, or hereditaments, with any clause, provision, article, or condition of revocation, de- termination, or tUteration, at his or their will or pleasure of such conveyance, assurance, grants, limitations of uses, or estates of, in or out of the said lands, tenements, or he- reditaments, or of, in, or out of any part or parcel of them, contained or mentioned in any writing, deed, or indenture. 336 OF SETTLEMENTS WITH POWERS OF REVOCATIOlf. indenture, of suchassurance^conveyanccj grantor gift ; and after such conveyance, grant, gift, demise, charge, limita- tion of uses or assurance so made or had, shall demise, grant, convey, or charge the same lands, tenements or he- reditaments, or any part or parcel thereof, to any person or persons, bodies politic and corporate, for money or other good consideration, paid or given (the said first convey- ance, assurance, gift, grant, demise, charge, or limita- tion, not by him or them revoked, made void or altered, according to the power and authority reserved or ex- pressed unto him or them, in and by the said secret con- veyance, assurance, gift, or grant), that then the said for- mer conveyance, assurance, gift, demise, and grant, as touching the said lands, tenements, or hereditaments, so after bargained, sold, conveyed, demised, or charged, against the said bargainees, vendees, lessees, grantees, and every of them, their heirs, successors, executors, ad- ministrators, and assigns, and against all and every per- son and persons, which have, shall or may lawfully claim any thing by, from, or under them, or any of them, shall be deemed, taken, and adjudged to be void, frustrate, and of none effect, by virtue and force of the act,. Pro- vided nevertheless that no lawful mortgage to be made bona fide, and without fraud or covin, upon good consi- deration, shall be impeached or impaired by force of the act, but shall stand in the like force and effect as the same would have done if the act had never been made. To understand the operation of this statute, we must consider, 1st, what instruments are avoided by it; and 2dly, in favour of whom. And first it is to be observed, that the statute does not extend to particular powers as a power to charge 2000Z. on an estate of considerable value. i OF SETTLEMENTS WITH POWERS OF REVOCATION. S37 valuCj for such a power is not a power within the words of the statute (being for a particular sum), to revoke, determine, or alter the estate (a). But it is of course quite clear, that a settlement by which a power of revocation, or a power tantamount to it, is reserved to the grantor, is void against a subse- quent purchaser (ft), and no artifice of the parties can protect the settlement. Therefore, although the power be conditional, that the settlor shall only revoke onpav- ment of a trifling sura to a third person (c), or with the consent of any third person, who is merely appointed by the grantor (d) ; in these and the like cases the condi- tion will be deemed colourable, and the settlement will be void against a subsequent purchaser. But where a settlement is made, with a power to the settlor to revoke, so as that the money be paid to trus- tees to be invested in the purchase of other estates (e), or to revoke with the consent of a stranger bona fide a-ppoiut- ed by the parties, and his consent is made requisite, not as a mere colour, but for the benefit of all parties, the settle- ment will be valid, and cannot be impeached by a subse- quent purchaser ( f ). This was detei mined in the case of Buller V. Waterhouse (g), which, however, Mr. Powell thought did not settle the point, because all the claim- (a) Jenkins v. Keymis, 1 Lev. 150. (e) Doe v. Martin, 4 Term Rep. (i) Cross V. Faustenditch, Cro.Jac. 3g. 180; Tarback v. Marbury, 2 (/) See Leigh v. Winter, iJo. Vern. 510; see Lane, 22. 411 ; and see Lane, 22. (i) Griffin v. Stanhope, Cro. Jac. (g) 2 Jo. 94, 3 Keb. 751 ; and see 454. ace. Hungerford v. Earle, 2 {d) See 3 Rep. 82, b. ; Lavender Freenn. 120. V. Blackston, 3 Kcb. 526. , z 1 ants 338 OF SETTLEMENTS WITH POWERS OF REVOCATION. ants under the conveyance were purchasers for a valu- able consideration (/i). But it seems quite immaterial whether the settlement Is merely voluntarv, or upon valuable consideration ( / ) . The statute savs, that all con- veyances which the grantor has power to revoke, shall be void against subsequent purchasers ; and therefore^ if parties giving a valuable consideration for a settle- mentj choose to permit the grantor to reserve a power to revoke the settlement, they must suffer for their folly. The grantor, by virtue of the power, may revoke the settlement ; and if he sell the estate w ithout revoking it, the statute makes it void. In fact, if we hold that settlements upon valuable consideration are not within this provision, we must at the same time admit, that the legislature did not intend to affect voluntary settle- ments, unless they were actually fraudulent : for volun- tary settlements are void against purchasers under the second section of the act (1), This clause, therefore, would, under the construction put upon it by Mr. Powell, have scarcely any operation. If a man having a power at a future day to revoke a. settlement made by liim, sell the estate before the day arrive, the settlement will be void against the purchaser, at the time when the vendor, according to the terms of the power, might have revoked the settlement {k). (h) Pow. on Powers, 330. (k) Mo.6l8j 3 Rep. 82j b. Bridge (i) See ace. Rob. on Vol. Conv. 23. 637^ (l) Theca«e of Doe v. Manning, mentioned in a note to the Treat, of Purcli. p. 433, has since the publication of that work been decided in favour of the mortgagee against ihe persons claiming under the voluntary settlement. And Ot' SETTLEMENTS WITH POWERS OF REVOCATION. 239 And a settlement made with power of revocation, will be void against a subsequent purchaser, although the grantor release or extinguish the power previously to the sale, otherwise the vendor might secretly release or destroy the power, and then shew to the purcbaser the conveyance containing the power of revocation, and so induce him to buy the land (/), In the case, however^ in which this was decided, tbe settlement appears to liave been voluntary, and tbe purchaser had not notice of tlie power being destroyed. But if a settlement should be made for valuable consideration, with a power of revocation, and the vendor should afterwards release the power for a valuable consideration, it is conceived that a purchaser, subsequently to the destruction of the power, could not prevail over the settlement, more espe- cially if he had notice of tbe power being released.. The statute, as we have seen, operates conditionally, that is, where the first conveyance is not revoked ac- cording to the power. The act has no eii'ect until the donee of the power sell the estate, without revoking the first conveyance, by virtue of his power. Suppose then a vendee professes to execute his power, but it is infor- mally exercised, will the defect be cured by the statute? The legislature intended to protect purchasers against fraudulent settlements, with powers of revocation ; for it is essential to bring a case within the act, that the estate should be sold, and the first conveyance not be revoked according to the power reserved to the grantor by such secret coiiveyant^ The noii-executicn of the power is the fraud which the statute intended to avoid. The conveyances against which the act was intended to (/) Bullock V Thorne, Mo. 615. z 2 operate, 540 OF SETTLEMENTS WITH POWERS OF KEVOCATION. Operate, were presumed to be secret. It was not meant to relieve any man who was aware of the existence of the power^ and might have required it to be exercised. The statute was not intended to operate as a mode of conveyance. But without insisting that where a pur- chaser is aware of the settlement^ he must require the power to be executed^, it ma}-^ be urged, that where a purchaser does rest his title on the execution of the power^ he rejects the aid of the legislature, and takes his title under, and not in opposition to the settlement ; and can, therefore, only stand in the same situation as any other purchaser who has unfortunately taken an estate under a power defectively executed. The purchaser can scarce- ly be held to have a good legal title, unless the vendor not only attempted to execute the power, but actually conveyed the estate to him. 6ECTf C 341 3 SECTION II. OF THE PERSON WHO MAY CLAIM THE RELIEF. In Upton and Bassett's case (a) it was resolved^ that no purchaser should avoid a precedent conveyance made by fraud and covin, but he who is a purchaser for money or other valuable consideration; for although in the preamble it is said (for money or other good considera- tion), and likewise in the body of the act, relating to voluntary conveyances (for money or other good consideration) ; yet these words (good consideration) are to be intended only of valuable consideration ; and that appears by the clause now under consideration, for there it is said, " for money or other good consider- ation paid or given;" and this word '^ paid" is to be referred to money, and " given " is to be referred to good consideration, so the sense is for money paid or other good consideration given ; v>'hich words exclude all consideration of nature or blood or the like, and are to be intended only of valuable considerations which may be given, and therefore he who makes a purchase of land for a valuable consideration, is only a purchaser within this statute. And to take advantage of this statute, the purchaser must have purchased bona Jide vfithout deceit or cun- ning, and for a valuable; and not inadequate considera- tion (6). (a) 3 Rep. 83, aj Cro. Eliz. 444. Rep. 83 b ; 2 And. 233 ; Doe (b) Upton y. Bassett, Cro. Eliz. v. Routledge, Cowp. 705 j see 4 44 ; Nedham v. Beaumont, 3 Bullock v. Sadiier, Ambl. 764. z 3 And 342 OF SETTLEMENTS WITH POWERS OF REYOCATION. And a lessee with (c) or witliout a line (d) as well as a mortgagee (c) is a purchaser within the statute. So a settlement made on a wile or children, })rior to marriage, is a conveyance for valuable consideration, by reason of the marriage itself ( f ) . And the marriage consideration runs through the whole settlement, so far as it relates to the husband, and wife, and issue (^^). But there are few cases, perhaps none, in which the mar- riage consideration will extend to remainders to colla- teral relations. So, if an agreement be entered into before the mar- riage, for a settlement of the estate (/?), or the husband receive an additional portion with his wife (i), the set- tlement, although made after marriage, will be deemed Yaluable. So, e\en an agreement to pay the husband a sum of money, as a portion, will support a settlement made after marriage, if the money is paid according to the agreement (A). So the concurrence of the wife in destroying an exist- ing settlement on her for the benefit of the husband, is a sufficient consideration for a nev^' settlement, although {c) Cross V. Faustenditch, Cro. Jac. 180. (d) Hinde v. Collins, Cro. Jac. 181, cited. (e) Goodright v. Moses, 2 Blackst. 1019 ; Chapman ^>. Emery, Cowp. 279. (/) Cohiie v. Parker, Cro. Jac. 158 ; Douglas v. Waad, 1 Cha. Ca. 99 ; Brown r. Joues, 1 Atk. 1S8. {g) Nairn r. Prowse, () Ves. jun. 752, (A) Griffin v. Stanhope, Cro. Jac. 4543 Sir Ralph Bovie's case, 1 Vern. J93; but qu. where the agreement before the marriage is by parol ; see Randall v. Mor- gan, riVes. juB. 74. (i) Colvile v. Parker, Cro. Jac. 158 ; Jones v. Marsh, For. d+j Stiicman v. Ashdown, 2 Atk. 477 ; Ramsden i.-. Hylton, 2 ves. 304. ( k) Brown v. Jones, 1 Atk. 1&8. much OF SETTLEMENTS WITH POWERS OF REVOCATION. 31.9 much more valuable than the former (k). And the bet- ter opinion, as well upon principle as in point of autho- ritj, seems to be, that tlje wife joining* in barring her dower, for the benefit of her husband, w ill be a suffi- cient consideration for a settlement on her (/). It has been decided, that the wife parting with her jointure is a sufficient consideration. Now, if that which comes in lieu of dower is a valuable consideration, surely the dower itself must be equally valuable. Besides, where a woman is entitled to dower, the estate cannot be sold to advantage without her concurrence : she is a neces- sary party to any arrangement respecting the estate, and that alone seems a sufficient ground io support a settle- ment on her (m). But if an unreasonable settlement be made upon a wife in consideration of her releasing her dower, it seems that equity in favour of subsequent purchasers wdil restrain her to her dower (n). If upon a separation the husband settle an estate upon his wife, and a friend of her's covenant to indem- nify the husband against any debts she may contract, this will be a sufficient consideration to uphold the set- tlement as valuable (o). Indeed, the courts will anxi- ously endeavour to support a fair settlement, and nearly any consideration will be sufficient for that purpose. (i5) Scott "y. Bell, 2 Lev. 70; Ball (m) Vide Roe v. Mitton, cited T. Bumford, Prec. Cha. 113 ; 1 infra. JEq. Ca. Abr. 354, pi. 5; see (w) Dolin -u, Coltman, 1 Vern.294. Clerk 'v. Nettleship, 2 Lev, (o^ Stephens f. Olive, 2 Bro. C. C. 148. 90 3 King V. Brewer, ib.93. n.; (/) Lavender v. Blackstone, 2 Lev. see, however. Lord Eldon's ar- 146 ; see and consider Evelyn v. gument in Lord St. John v. Lady Templar, 2 Bro. C. C. US. St. John, 11 Ves. jun. 526. z 4 Therefore, 344 OF SETTLEMENTS WITH POWERS OF REVOCATION. Therefore;, if a person, whose concurrence the parties think essential, join in a settlement^, his concurrence will be deemed a valuable consideration, although he do not substantially part with any thing (p). It follows therefore, that a conveyance, lease, or mortgage, to a purchaser, lessee, or mortgagee, or to a wife or child, under the circumstances before men- tioned, by a person having settled his estate, with a power of revocation, is valid, although the power of revocation is not executed, for the settlement is defeated by the force of the statute of Elizabeth. But any con- veyance executed by a husband in favour of his wife or children after marriage, which rests wholly on the moral duty of a husband and parent to provide for his wife and issue, is voluntary {q), and consequently the prior settlement would not be void as against such a conveyance. And the purchaser must have contracted for the in- terest, or an estate or right out of the interest (?'), to which the vendor would be entitled, in case the first deed were void. Thus, in a case mentioned by Sir Edward Coke in his Commentary on Littleton (*), A had a lease of certain lands for 60 years, if he had lived so long, and forged a lease for 90 years absolutely, and he, by indenture reciting the forged lease, for valuable consideration bargained and sold the forged lease, and (p) Roe -u-Mitton, 2 Wils. 356; Evelyn v. Templar, 2 Bro. C. C. see Myddieton v. Lord Kenyon, 148 ; see Parker v. Serjeant, 2Ves.jnn. 391. Finch, 146. (o) Woofiie's case, cited in Colvile (r) See Hatton v. Jones, Bui. N. V. Parker, Cro. Jac. 158 j Good- P. 9«. light V. Moses, 2 Blackst. lOlpj {s) Co. Litt. 3, b. Chapman v. Emery, Cowp. 278; all OF SETTLEMENTS WITH POWERS OF REVOCATION. 34& all his interest in the land to B. Sir Edward Coke adds, that it seemed to him that B was no purchaser within the statute of 27 Elizabeth, for he contracted not for the true and lawful interest, for that was not known to him, for then perhaps he would not have dealt for it ; and the visible and known term was forged ; and although by general words the true interest passed, notwithstanding he gave no valuable consideration nor contracted for it j and of this opinion were all the Judges in Serjeants Inn, This was the case of a voluntary conveyance without a power of revocation, but the same principle would apply to a conveyance of a forged in- terest with such a power. Perhaps the ground of this decision was, that the purchaser did not require the aid of the statute, as the real interest was vested in him under the general words, and the voluntary settlement was void, independently of the statute, because it was forged. CHAP. [ 346 ] CHAPTER IX. OF THE ESTATES WHICH MAY BE CREATED UNDEIt POWERS OF APPOINTMENT, AND OF LIMITATIONS IN DEFAULT OF APPOINTMENT. In treating of this important branch of our subject, I propose to consider^ 1 . AVhat estates may be created in point of perpetuity. 2. The construction of pov^ers iu general. S. Where an exclusive appointment is autho- rised. 4. What is deemed an illusory appointment, 5. The construction of a power to appomt to children. 6. The like enquiry upon a power to appoint to rela- tions. 7. The rules established respecting powers to jointure. 8. The effect of an excess in the execution of a power. And lastly. How estates go in default of ap- pointment, or where there is a bad appointment. SECTION L WHAT ESTATES MAY BE CREATED IN POllST OF PERPETUITY. I.JDefore we enter into the consideration of the estates Avhich may be created under powers in point of perpe- tuity, it will be necessary* to ascertain what estates th^ law will not permit to be created under an original in- strument by reason of their tendency to a perpetuity. Mr. TVHAT ESTATES MAY BE CREATED^ &C. 347 Mr. Justice Biiller, in delivering judgment in Robinson V. Hardcastle {a), stated it as settled;, that nothing less than an estate of inheritance could be limited under a power to a person unborn at the time of the execution of the deed creating the power, because every execution of a 'power must he coupled with the power itself, and a life estate to a person not in esse, could not have been limited in the deed creating the power. The learned Judge cited several cases to prove this position, which do not bear him out, and particularly an opinion of Wilmot's (b) on this point, who said that he had known a case where there had been an only child, and that child had, under a power to appoint to children, been made tenant for life, with remainder in tail to its issue ; but he much doubt- ed whether it could be legally done : manifestly, Mr. Justice Buller added, pointing out, that if a child to whom an estate is limited under a power is not born at the time the power is created, he can only take an estate of inheritance. I cite this passage to rescue my Lord Chief Justice Wilmot from the imputation of having laid down any such doctrine. That very learned Judge's doubt was, not whether a person not in esse could be made tenant for life, but whether under a power to appoint to children, grand-children were proper objects. His doubt aro.^e on the estate limited to the issue of the children, and not upon the life estate limited to the child himself. His opinion on this point is contained in a case upon a will which occurred while he was a judge of B. R. : '' I dare say," he observed, '' the variation in tlie Avording of the will arose from a notion in the drawer, (a) 2 Tevm Rep. 241. {h) See 2 Wils. 33/. that 348 WHAT ESTATES MAY BE CREATED that you cannot make an after-born son tenant for life, I have known such a notion prevail in the conntrj, though nothing is more untrue (c) ." And it is incon- trovertibly settled^ that an unborn son may be made te- nant for life, and that a vested remainder may be limit- ed thereon to a person in esse {d) ; but it is equally clear, that the estate cannot be limited to the children of the unborn tenant for life as purchasers. Upon this point Mr. Booth and Mr. Yorke were clearly agreed in Mr Baker's case. They considered it as a possibility upon a possibility, which the law w ould not endure (e). Mr. Fearne was of the same opinion (/), and in Hay v. the Earl of Coventry (g), Lord Kenyon said it w^as clearly settled, that an estate for life may be limited to unborn issue, provided the devisor does not go further, and give an estate in succession to the children of such unborn son, by Mhich expression it is clear, that he meant that the children could not take as purchasers. This is prov- ed by an observation which he made in another case ; he said, that '' an unborn child may be made tenant in tail, but not tenant for life, with a limitation to his children as purchasers (Ji) ;" and it is distinctly laid down in the reasons for the respondent in the Duke of Marlborough's case, that if after the first vested estate of freehold you limit a contingent estate, or use for life to a person un- born, and then follow it with contingent remainders in tail to the sons or children of such unborn tenant for life, such contingent limitations of the inheritance would (c) Evans<7'.Astley, aBlackst.523. (/) Posth. 215. {(l) Routledge v. Dorrel, 2 Ves. (g) 3 Term Rep. 86. • jun. 357. (/j) 1 East. 452. («) See 2 vol. Ca. and opln. 435, 440. be IN POINT OF PERPETUITY. 349 be void (i) ; and we learn from Lord Kemon^ that this doctrine was afterwards recognised by the learned Chief, who delivered the opinion of the judges on the case in the House of Lords (/^). Indeed a limitation like this is clearlj void bj reason of its tendency to a perpetuity, in- dependently of the technical objection of its being a pos- sibility upon a possibility, which probably means the same thing. For, in the first place, a life not in being at the creation of the limitation, and a fev/ months for gestation are taken, as the unborn tenant for life may be in ventre matris at his father's decease. Then twenty- one years and a few months more for gestation may be required, as the tenant for life may in like manner die, leaving a child in venire sa mere, so that a century may easily elapse before the intail can be barred. Now, in the common case of a limitation to one for life, remainder to his first and other sons in tail, the estate is not bij force of the limitation, tied up for more than a life in hei?ig, and twenty-one years and a few months, allowing for the gestation and infancy of the tenant in tail, although in this as well as in every other limitation, the estate may, by successive deaths and infancies^ be tied up for a vast number of years ; but that, as Mr. Justice Buller has correctly observed, is, by operation of law, and the limi- tation cannot be affected by legal consequences (/). And it may be remarked by the way, that it is perhaps far from clear that the law will, even in the case of an exe- cutory devise, permit the twenty-one years and a few months to be taken independently of the birth and in- fancy of the devisee (w). (i) 5 Bro. P. C. 608. (mj See Treat. Purch. 2d edit. p. {k) Sr,e 1 East, 453. 556, n. where the autlioiities are (/) Sefc4Ves- jun.p. 328 ;but see collected. 12 Ves.jun, p.2.j2. But 350 WHAT ESTATES MAV BE CKEATED But as £1 child in ventre sa mere is considered as a life in being', an estate may be settled on him for life, with remainder to his sons as purchasers, in the same way as if he were actually born (77), II. To proceed to the immediate point of enquiry — An important distinction is established between generai and particular powers. By a general povNcr we un- derstand a right to appoint to whomsoever the donee pleases. By a particular power it is meant that the donee is restricted to some objects designated in the deed creating- the power, as to his own children (a). A general power is, in regard to the estates which may be created by force of it, tantamount to a limi- tation in fee, not merely because it enables tlie donee to limit a fee, which a particular power may also do, but because it enables him to give the fee to whom he pleases, he has an absolute disposing power over the estate, and may bring* it into the market w lien- ever his necessities or wishes may lead him to do so. Therefore, whatever estates may be created by a man seised in fee, may equally be created under a general power of appointment ; and the period for the com- mencement of the limitations, in point of perpetuity, is the time of the execution of the power, and not of the creation of it. Thus we have seen, tliat if A v,ere to convej' his estate to his unborn son for life, remainder to the sons of that son as purchasers, the limitations to (?i) Thdlusson v. Woodford, 1 text to a child in ventre sa mere. New Rep. 393, where the ob- (0) See Buller's note to Co. Litt. servation, although addressed to 2/1, bj and see PowelJ's note an unborn child generally, is to Fearne's Ex. Dev. \). 32/, /i, evidently confined by the coh- (a) ib.S/l, 377. the i IN POINT OF PERPETUITY. 351 the children of the son would be void as tending to a perpetuity : but if A were to convey his estate to such uses g-euerallj as he should appoint, he might after- wards, upon the birth of a son, limit the estate to that son for life, remainder to his sons as purchasers, in pre- cisely the same terms as if at the birth of the son he had been seised in fee. Mr. Powell, in one of his notes to Fearne's Executory Devises, admits this doctrine to be true, where the general power of appointment and the fee simple, in default of appointment, are vested in the same person by the deed creating the power, But he contends that, where the act is merely an exercise of the power, capable of taking effect by virtue of the power onlij, the uses limited by the power must be such as would have been good if limited by the original deed ; and he illustrates this position in the following manner (p) : " If A, owner of an estate in fee simple in lands, were to limit them to the use of such person or persons (generally) for such estate or estates, &c. as he (A) should appoint, and in the meantime, and subject to such power, to the use of B in fee ; and then A exercised his power in favour of C, a person unborn at the time of the creation of the power, for life, remainder to his first and other sons in fee, so as to make the sons of C take by purchase; he would thereby be enabled to tie up the property, beyond the period of a life in being, and twenty-one years after, computed from the time at which the instrument creating the power bore date (which is the point of time to which our attention must be directed), in the same manner as if such de- (/>) Powell's n. to Fearne's Ex. Dey. p. ^J5. claratioa 35^ WHAT ESTATES MAY BE CREATED claration were made in the exercise of a special power 5 for, in such case, if the appointment were valid, no complete alienation could take place, until the unborn issue of the son of C (if any), he (C) b( ing- unborn at the time of the creation of the power, attained twenty- one. Or, taking it in another point of view, the person in Mhom the fee is vested, subject to the power, could not alien his estate, but subject to be divested by C's issue (if any), and such issue would take the fee sim- ple, under the power, as purchasers, though the unborn issue of a person unborn at the creation of the power/' Now in opposition to the foregoing remarks, we can- not fail to observe, that neither with regard to the limi- tations themselves, nor to the remainder over, is there any objection whatever on the ground of perpetuity. In re- gard to the limitations, they are merely such as a man seised in fee might create, and, as the power is equivalent to the feCj the same estates may be created by force of both. To take a distinction between a general power and a limitation in fee, is to grasp a shadow whilst the substance escapes. By the creation of the power no per- petuity, not even a tendency to a perpetuity, is effected. The donee may sell the estate the next moment; and when he exercises the power in strict settlement as if he were seised in fee, he creates those estates only which the law permits with reference to the time at which they were raised. If we are to consider the interests of the remainder-man, no perpetuity in regard to him is creat- ed beyond the life of the donee of the power. And when the power is executed, it is immaterial to him what estates are created by it, as in whatever mode the fee is disposed of, his remainder over is defeated. But it cer- tainly is not necessary to advert to his estate as the grand object IN POINT OF PtRPETUlfy. S53 object of the law's anxiety against perpetuities — the re* straint of alienation — is in this case avoided. The do- nee may, notwithstanding the remainder over to a stran^ ger, dispose of the estate in the same manner as if he were seised in fee. There appears, therefore, to be no solid principle upon which the distinction taken by Mr, Powell can be supported. With respect to particular powers, they have a ten- dency to a perpetuity, which is not obviated by their enabling the donee to limit the fee. For the question in these cases is, not whether the donee can limit a fee^ but whether he can, through the medium of his power, dispose of the estate as if he were seised in fee of it. It is well established, therefore, that under a particular power, as a power to appoint to children, no estate can be created which would not have been yalid if linvited in the deed creating the power. The test of the validity of the Estates raised, is to place them in the deed creating the power in lieu of the power itself. Thus, if by a settle- ment an estate be limited to A. for life, remainder to his children as he shall appoint, and he afterwards appoint to i. son born subsequently to the settlement for life, remainder to the children of that son as purchasers, read the limita- tions as if inserted in the settlement in the place of the power, and they will stand thus : to A for life, remain- der to his unborn son for life, remainder to the sous of tiiat son as purchasers. Now the limitation to the graud- chiidren would have been void if contained in the set- tlement; and it follows therefore, that it cannot be sus- tained as a due execution of the power. But it is important in these cases to consider whether the power was created by will or deed \ this speaks from the execution of it> that from the death of the testator, ^ A fiO 354 WHAT ESTATES MAY BE CREATED, &C. SO that in the case of a power crcaicdhy will, children born in the testator's lifetime, though lijier his will, stand in the same situation as chiidien born at tiie exe- cution of the deed where the power is created by deed (o). We must be careful not to destroy this distinction by extending it to an instrument eocccuting a power, for whether the power be executed by deed or will, the li- mitation in regard to the question of perpetuity must receive tiie same construction The point of inquiry is the instrument creating, and not the instrument execiii- ing the power. \[t remains to observe, that a power may be given to a person in essCj to appoint an estate amongst his grandchildren, or more remote issue born during his life ; and even where the power is given generally, yet if he only appoint to such as are living at his death, it will be good (I) (p). There is no objection to the due execution of such a power on the ground of per- petuity. And a po\\er to appoint to '^ issue," includes all issue, however remote, born in due time {q). But although a limitation under a power may be void, as too remote, yet where the power is executed by will, the courts will construe it as a proper will, and en- deavour to put such a construction on the limitation as will bring it within the proper limits. This will be considered hereafter (/). (o) Duke of Devonshire t'. Lord jun. 150; Routledge -u. Dorril, G. Cavendish, 4 Term Hep. 2 Ves. jun.357. 741. ' (<^) Hockley v. Mawbey, uli sup. (p) Hockley v. Mawbey, 1 Ves. (/) /^i^t? infra, sect. S. (1) As to the effect of an appointment to those born afterwards, vide infra, sect. 8. SECT. [ 355 SECTION II. OF THE CONSTRUCTION OF POWERS IN GENERAL. W E may here consider^ L What estates may be creat- ed under powers in general : 2. The construction of U" mitations in instruments executing powers ; and 3. What acts are authorised by different powers^ reserving the consideration of such powers as appear to require a se- parate discussion. And 1. Where the intention is clsar, a power may enable the disposition of a fee, although no words of inheritance are used, as where a testator gives a power to sell lands, the donee may sell the inheritance, be- cause the testator gives the same power he himself had (a). So a general power to dispose of an estate in favour of a particular object will authorise the limita- tion of a fee, although no words of inheritance are con- tained in the power. This was decided in the 26 Car. 2. in a case which underwent great consideration (&). The devise was to the testator's wife for life, '^ and by her to be disposed of to such of my children as she shall think fit." It was agreed that the wife took for life only, and that the power to dispose did not relate to her life estate ; but the question remained as to what estate the wife was authorised to limit to the children. Upon the second argument, Vaughaii Chief Justice, and Atkins, seemed to incline that she should have power to a) Liefe V. Saltingstone, in/ra. ISQ; 1 Freem. lAQ, l63, 1/6 > {b) Liefe v. Saltin^stone, 1 Mod. 2 Lev. 104 ; Cart. 232. 2a2 , dispose 356 OF THE CONSTRUCTION OF POWERS IN GENERAL. dispose of an estate for life only, because if the testator had saidj I dispose of it to my f;on, it would have been but an estate for life. But Windham and Ellis held otherwise, as there was a diflTcreiice between a devise of an interest and a power ; and they granted^ that if the testator had said / dispose of it to my son, it would have been but for life ; but here the testator gives a power to dispose^ which seems to imply such a power as he himself had, which was to dispose of the fee (1) (c). After another argument, Atkins came over to the opi- nion of Windham and Ellis, and they three pronounced judgment in favour of the power enabling a limitation of the fee. But Vaughan Chief Justice dissented from his brothers, on the ground, that the wife was merely to nominate what person should take by the will, the plain signification of which was, " I bequeath the estate to such of my children as my wife shall think fit;, at her disposal ;'' and by this w ay the children would take i1 expressly by the gift of the testator ; and the words (at her disposal) are with relation to the children and not to the estate ; and when she hath disposed of it to any child, that child shall have but an estate for life. But he added (with some want of decorum) subirascens, scntentliB numerantnr non pondcrantur. In Leonard Lovie's ca^e (5) the uses of a feoffment were declared to I , to the use of the settlor for life, with power to make leases, and then to the use of the (f) See 1 Freem. 164. (^) 10 Rep. 78. (1) Levinz states, from the relation of a I'riend, that Vanghan and Atkins were in favour of a fee, and Windham and Ellis contra ; but he was misinformed, 2 Lev. 104; nom. Sir Richard S.iltonstaU's case. performance OF THE CONSTRUCTION OF POWERS IN GENERAL. 357 performance of his will, and to the use of such person and persons to whom he should devise any estate or estates in the premises ; and it was holden, that without question he might devise the land to any person in tail or fee. And in a recent case in the court of King's Bench (e), . the testator^ after an estate for life to his grand-daughter, gaye the estate to the lawful issue of her body, in such parts, shares, and proportions, manner and form as she should appoint, and in default of appointment, to the children (as the court determined) in fee. My Lord Elienborough, in delivering the judgment of the court, said, that this power in the course of the argument, was said, but not much pressed, to be only a power to ap- point to her children in tail; and if that were so, it would furnish an inference, that the limitations which were to take place in default of appointment were in- tended to be of the same nature. But the court thought that this devise gave a power to appoint in fee i for ad- mitting that there might be ground to contend that the power was only to appoint in tail, if the power of ap- pointment had only been '' to the use of her lawful issue, in such parts, shares, and proportions as she should direct ;" upon which it was not to be understood that they gave any opinion (/); yet when the words '^ manner and form" were added, there could be no doubt but that in order to give them some effect (and every word, if it could, ought to be made operate), some- thing more must be understood than merely a power of unequal division of an estate, to be limited in a certain (e) Rex V. the Marquis of Staf- (/) See Phelp v. Hay, MS. App. ford, 7 East, 521. No. 11. ^ A 3 course 358 OF THE CONSTRUCTION OF POWERS IN GENERAL, course of descent : and if thej did mean any thing be- yond a power of division, they must import a power of determining the nature and quantity of the estate the issue should take : and if so, the mother might appoint estates in fee to all or any of her children. It was not observed in the preceding case, that in Godolphin v. Godolphia (g). Lord Hardwicke thought that the words manner and proportion would not en- able a limitatioo further than for life, although indeed this case depends too much on its own particular cir- cumstances to be cited as a precedent. In a case before the present Master of the Rolls (/?), the testator, after devising an estate to his wife for life, gave it '' unto and amongst all and every our children in such manner and in such proportions as she shall appoint." He then empowered his wife to sell the estates, and to lay out the money and receive the inte- rest for life ; and after her decease he directed and ap- pointed the same, both principal and interest, to be paid *' to and among our children in such proportions as aforesaid." The widow made no appointment. The Master of the Rolls said, that though in the devise of the lands in the first part of the will there were no words of inheritance, yet in the subsequent part, the testator giving his wife power to sell the estate, and appointing the money, both principal and interest, among the children; as the testator could not be supposed to in- tend to give them a larger interest in that part than in the former, they took several estates of inheritance. [g) 1 Ves. 21. (h) Casterton v. Sutherland, g Ves. jun. 445. It OF THE CONSTRUCTION OF POWERS IN GENERAL. 359 It should seem, therefore,, that the Master of the Rolls thought that the power did not authorise a limitation of the fee^ but he was not called upon to deliver an opinion on the point. Upon the authority of Leife v. Saltingstone, and the opinion of the court of King's Bench in the Marquis of Stafford's case, he would per- haps have been of opinion that a fee might be limited, bad it been necessary to decide the queirtion. For in all these cases it is quite clear that the tt:5tator means the fee to pass, and the word manner, or any word of the like effect, may well be construed in favour of the intention to mean in such mode as to the quantity of estate to he given, as the donee shall think fit. The case of Leife v. Saltingstone has been entirely overlooked in the modern cases, although it is a most important au- thority in favour of that construction which all man- kind must wish to prevail — a construction that effec- tuates the testator's intention. At law, a particular power of charging lands will not authorise a limitation of the fee as a security for the sum to be raised. Thus, in Jenkins v. Keymis (/), a tenant for life un- der a settlement having a power to charge the land with 2,000Z. conveyed the inheritance, without referring to the power, by way of mortgage for securing 2,000/. and interest, and it was determined, both at law and in equity, that the power was not executed. Hale, Chief Baron, said, that the power might have been well exe- cuted by a grant of the land until 2,000/. was raised by the profits, or by a declaration of use until 2,000/. was received, or by a deed charging the land with the sum, (i) 1 Lev. 150> Hard. 395; l Cha. Ca. 103. 2 A 4 but 360 OF thTe construction of powers in general. but he doubted whether a release of the inheritance was within the power, for by this mode all the subsequent estates would be destroyed, which was not the intent of the parties. But it should seem, that at this day if a clear inten- tion appeared to execute the power, equity would con- sider such an execution as that in Jenkins v. Keymis a substantial, although defective execution, and would relieve against the defect in favour of the mortgagee ; and it has been ruled, that in equity an unlimited power to charge an estate will authorise a disposition of the estate itself, in trust to sell and divide the money amongst the objects. This was decided by Lord Rcsslyn in Long V. Long (A), where the estate was limited to the father for life, remainder to the wife and issue in strict settlement ; and power was given to the father, in case there were any younger children, to charge the estate with the payment " of such sum or sums of money," for the benefit of the children as he should think fit. By his will he directed the estate to be sold, and gave the money amongst his children, giving the eldest son a very small portion. The bill was filed for sale of the estate, and the Chancellor stopped the argument, and treated the point as clear. This appointment he said was in substance exactly what he had a right to do. The present Master of the Rolls, addressing himself to this judgment, said, that it determines this, that to en- able a person to sell land, it is not necessary to have (il) 5 Ves. jun. 445 ; Reg. Lib. B. the whole value of the estate 1/99^ fo. 1023. The plaintiffs might be appointed so as totally jpsistcd, tliat under the power to exclude the eldest son. that OF THE CONSTRUCTION OF FOWERS IN GENERAL. 361 that authority given to him (;). The terms of the set- tlement in Long V. Long, gave room in a peculiar degree for that implication j for it might be contended that was only a power to charge ; and the estate was to be in possession of the eldest son. Of necessity it was to be implied, that the estate was to be permitted to remain in the eldest son, to bear the charge ; and therefore no- thing but a charge could be intended. But it was held, that as there was nothing to restrain him in the amount, and he might have charged the utmost value, he had done only what was equivalent to that. It was supposed, the eldest son had all he was entitled to, if he had in money all he could have claimed in land. It is to be regretted that so irqiortant a decision as that in the case of Long v. Long, should have been pro- nounced without all the arguments which might have been adduced against it having been heard. The case of the Earl of Tankerville t;. Coke ( ?n) might have been cited. In that case a particular power of jointuring was given to a tenant for life, and a general power to charge the lands with portions for younger children. The tenant for life charged the lands with very heavy sums. It was insisted that the court would cut down the power as unreasonable, as it appeared that the tes- tator designed the estate to remain in thefamili/. Lord Ch. King assisted by Lord C. J. Raymond, and Mr. Baron Comyns, held that the donee had restrained his power by his marriage articles, so that it became unne- cessary to decide the point, but all the three Judges (/) See6 Ves.jun. 797. Hinchinbrokc v. Seymour, sup. im) Mose. 146, and see Lord p. 215. expressed 362 OF THE CONSTRUCTION OF POWERS IN GENERAL, expressed their opinion that the power was under the influence of the courts, and that an unreasonable execu- tion of it would be relieved against. The case of Long 75. Long, opposed, as it appears to be, by the well-con^ sidered case of Tankerville v. Coke, can scarcely be considered such an authority as will controul any future decision, should the principle upon which it was decided not be approved of. The converse of the decision in Long v. Long, viz. that a power to grant the land, enables a charge of a sum of money on the land, has also been decided. This was determined by Lord Hardwicke in the case of Ro- berts V. Dixall (n) where a father had a power to ap- point and divide the estate among his younger children, ill such proportions as he should think proper. The father intending to exercise his power, gave a gross sum to the only younger child, and charged it on the estate ; and Lord Hardwicke decreed that the power vsas in substance well executed. It was true, he said, that the direct terms of the power were not pursued, but the intent and design of it were. It was admitted that the father might have appointed part of the estate to he sold, and the money raised hy such sale ; and w^hat was done was exactly the same thing, the court might order a sale. It was the same to the heir or remainder- man, which way the child was to be provided for, only that giving a portion of the estate might be a means to tear it to pieces, whereas now the estate would be kept entire ; and it was better for the daughter, and perhaps [n) 2 Eq. Ca. Abr. 668, pi. 19 ; S. C. Appendix No. 12. The facts and decree stated from Lib. Reg. thought i OF THE CONSTRUCTION OF POWERS IN GENERAL. 363 thought SO by the testator, that she shoiikl have a sum of money, than a small estate, and though the will might not enure as a good execution of the power in strict- ness, yet within the meaning and design of it, it was a good charge for the young lady's benefit. The case put by Lord Hardwicke in the prece- ding decree, as admitted in argument, occurred in specie in the late case of Kenworthy v. Bate (o). The parent had an exclusive power of appointing to any of his children. He gave the estate to trus- tees, to sell and divide the money amongst his chil- dren. The Master of the Rolls treated this case as infinitely less strong than Long and Long, which as we have seen was a direct determination, that a power to charge, includes a power to sell, and the learned Judge thought it followed, that a power to give includes a power to sell, for the purpose of giving the money instead of the land. In a case of frequent reference, prior in point of time, even to the case of Robarts and Dixall, under a power to appoint to children for such estate and estates, and in such shares and proportions as the parent should think fit ; he limited a rent charge to his youngest son and the heirs of his body, and in default of such issue, he char- ged the estate, which would then go to his eldest son under the settlement, with portions for his daughters (/?). The execution of the power was resisted by the eldest son, as the testator might, it was said, have distributed the land amongst his younger children in what propor- (o) 6 Ves. jun. 793» (/)) Thwaytes v. Dye, 2 Vern. 80j Raith. ed. 3 Cha. Ca. 69. tions 364 OF THE CONSTRUCTION OF POWERS IN GENERAL. tions he thought fit, but had not power lo devise a rent charge, or sums of money ; but the court over-ruled this plea to the daughters bill for their portions, and the de- cree was aflirmed in the House of Lords. But it has been determined at law by three Judges against one, that a limitation to the use of such persons as A should appoint. /br .^nch interests or other-wise as he should specify, did not authorise a limitation of a rent- charge, but a disposition of the estate of the land only (g). In the Earl of Bath's case, Mr. Baron Powell, ad- dressing himself to the case of Thwaytes and Dye, said, that one great question was, whether the power being to limit estate or estates, he might limit a rent out of those lands : It was held in equity he might, and truly he thought that he might at law. There was, he con- fessed, an opinion against it in the case of Browne t». Tay- lor, where there were three Judges against one, but real- ly he thought it was good in law (?'). From file present temper of the courts, there is great reason to suppose, that in a case like Thwaytes v. Dye, it would, agreeably to the opinion of Mr. Baron Powell, be determined, that a rent-charge might be limited even at law. There is no magic in words. '' Estate or estates," mean quantity of interest, and a rent-charge is clearly a portion of the entire interest in the land. Such a deter- mination, therefore, would be authorised, as well by the spirit as the words of the power. In Browne v. Taylor, the words were strongly in favour of the power to limit a rent, and Croke Justice was of that opinion. It scarce- ly admits of doubt, that in a similar case the courts {q) Browne v. Taylor, Cro. Car. 38 ; and see Lord Arundel -y. Earl of Pembroke, Dy. 263. ir) And see Middleton v. Pryor, Ambl. 2Q3, would OF THE CONSTRUCTION OF POWERS IN' GENERAL. 365 wouldj at this day^ decide, that a legal rent might be li- mited under the power. The principle of the late decisions, it must be observed, has been extended in practice, and some gentlemen treat the case of Kenworthy and Bate as a decision that the power was legally execut- ed. It cannot be discovered from the decree what the meaning of the court on this head really was. The decree merely declares the power to be well-executed, and orders a sale in which all proper parties were to join (?'), AVehave seen, however, that the case of Thwaytes and Dje was deemed an equitable execution only; and Lord Hardwicke admitted, that in Robarts v. Dixall, the power was not legality executed. Of course in Long v. Long, the execution was deem- ed valid in equity only ( s). In most of these cases it may well be held that the power is suhstaiitialli/ execut- ed, but consisteatly with the established rules on the construction of powers at law, it would require a consi- derable stretch to determine that a power to charge in- cludes a power to give the estate itself^ or that a power to give the estate to one, enables a gift of it to another to sell for his benefit. The trustee in that case is not an object of the power, and the courts of law might per- haps consider themselves bound not to advert to the trust. But the party not being an object of the power, is of it- self a sufficient objection to the execution at law; for in Hervey and Hervey under a power of jointuring, Lord Hardwicke considered it clear, that no conveyance could be pursuant to the power, but what was to the njife her- (r) Reg. Lib. A. 1801, fol. 1000. reetfid to join in the conveyance (i) Sec Reg. Lib. B. 1799> fol. when of age } and see Jenkins IQ23. The eldest son -was di- v. Keymis, supra, self 366 OF THE CONSTRUCTION OF POWERS IN GENERAL. self only (0- Nor is the case of Peters v. Masham, ■which will be hereafter stated, an authority against this rule, as there it was considered that the donee had only to select the land, and not to limit the estate (u). The cautious practitioner, therefore, will hesitate before he considers these as cases of legal executions. To make them so, a power to give the estate to A, must be read, as if it authorised a gift to any other person for his bene- fit. Even in cases like Thwaytes v. Dye, and Browne V. Taylor, a court of equity could scarcely hold the power legally executed without the last case having first been over-ruled in a court of law. A power to grant a rent-charge on any part of the estate of a particular value, will not even in equity au- thorise a charge of the rent on the entire estate, as in such cases the intent is, that the whole estate shall not be incumbered (a) ; so a power to settle part of the land of a given value, will not authorise a grant of a rent- charge of the same value on the whole estate {y), but equity, where there is a proper consideration, will of course relieve against the defective execution. In Whitlock's case {%), it was laid down and agreed to by the whole court, that under a power to make an estate for three lives, the donee cannot make a lease for ninety-nine years determinable upon three lives. But in that case a distinction was taken between such a particular power affirmative and a general power re- strained with a negative, as a power generally to make leases, with a proviso that they should not exceed three (/) 1 Atk. 563, 504. (y) Earl of Tyiconnel v. Duke of (m) Fitzg. 156, Fortes. SSg, infra, Ancaster, 2 Ves. 500. sect. 8, 11. {'^) 8 Rep. 69, b. S. C. iBrownl. ix) Hervey v. Hervey, I Atk. 56l. I69, noni. Chappel v. Whitlock. lives OF THE CONSTRUCTION OF POWERS IN GENERAL. 367 lives or twenty-one years ; under which it was deter- mined, that he might make a lease for ninety-nine years, determinable on three lives, because the power was ab- solute and indefinite ; and the proviso of correction is added, that the lease shall not exceed three lives or twenty-one years ; which clause is negative, and quali- fies the generality of the first proviso ; and a lease for ninety-nine years, determinable on three lives, does not exceed three lives, although in truth it is not a lease for lives. The first resolution in Whitlock's case appears to have been much debated in a case called Rattle v. Pop- ham (a), where, under a power to a tenant for life in a marriage settlement to limit the estate to any woman he should marry, for her life, by way of jointure, and in bar of dower, he made a lease for ninety-nine years, de- terminable on the death of his wife ; and it was deter- mined in the court of King's Bench, whilst Lord Hard- wick was Chief, that however she might be entitled to relief in a court of equity, it could never be said to be an execution of the power : for the estates are very dif- ferent, one being a freehold and the other a chattel, and the freehold in her being a qualification to any future husband to be a member of parliament, kill game, &c. And the court founded their decision on Whitlock's case, and treated it as a very plain case.. •In a case before Lord Mansfield, he said, that in the case of Rattle v. Popham, the court thought themselves bound by Whitlock's case, and held the lease not to be warranted by the power. The widow brought her bill in the court of Chancery ; and Lord Talbot, arguing (a) Str. 992; Cunn. 102 ; and see 2 Ves. 644 ; and see accordingly Churchman v. Harvev, Ambl. 335 : the same point decided. from 368 OF THE CONSTRUCTION OF POWERS IN GENERAL. from the same premises, the power and the lease, with- out any other circumstance, held the lease to be war- ranted by the power. He said it was not a defective, but a blundering execution: and he decreed the defen- dant to pay all the costs, both at Jaw and in equity (b). Lord Mansfield adduced this decision of Lord Tal- bot's in support of his favourite doctrine, that whatever was an equitable ought to be deemed a legal execution of a power. In a late case before Lord Redesdale, in which he combated this doctrine, he said, that if Lord Mansfield found fault with the decision in the case of Rattle V. Popham, as he was represented to have done, he (Lord Redesdale) thought, with deference, that there was no ground for the remark (c") ; and indeed, not- withstanding Lord Mansfield's assertion, it appears, from a manuscript note of the case, which will be found in the Appendix to this volume, that Lord Talbot admitted clearly that the power was not well executed at lazv, but he relieved the wife against the defective execution, on the general rule of equity {d); and on the same prin- ciple, riz. relief of equity against the defect. Lord Not- tingham, when Lord Keeper, is reported to have said, that the resolution in Wliitlock's case might be laughed at(0. The result of the authorities appears to be, that where a freehold interest is authorised to be appointed under a power, a difi'erent species of estate, although less valu- able as a term of ninety-nine years determinable with the life, cannot at law be granted. But that in equity (b) 2 Burr. 1147. ('0 S. C. nom.Newport v. Savage, (c) 1 Rep. T. Redes. 71. MS. App. No. 13. (ff) I Freem. 308. such OF THE CONSTRUCTION OF POWERS IN GENERAL. 369 such an execution will be supporiedj because less than the power is effected, and it clearly appears how much less: if the appointee should outlive the ninety-nine years, the estate, as to the residue of his life, will be undisposed of, and will go over to the remainder-man, or other person entitled (/"). But although a different interest cannot be given from that designated in the power as a chattel interest instead of a freehold, yet it seems, that where the nature of the interest is the same, the appointment will be good at law as well as in equity, although the power i.4 not executed to its fullest extent. Of course, if a power expressly require that an estate in fee, and no other shall be appointed, a less estate than a fee cannot be limited ; and even where a power aifthorises the appointment of a fee, and there are not any express words of restriction, it has been considered in practice, that a less estate cannot be given (g). But in the case of Bovey v. Smith, it was said by the court, that such a power may be executed at several times ; an estate for life may be appointed at one time, and the fee at anothertime( h). Andthecase of Phelp v. Hay (i) appears to be a direct authority, that, under a power to appoint to one or more of several objects, their, his or her heirs and assigns, in such manner, form, &c. as the donee may choose, an estate tail may be given. The words tliere were peculiarly string. The limitation which was in a deed was, to the use of three children, or to any or either of them, their, his or her heirs and assigns, (/) See 2Ves. 645; Churchman (h) iVern. 84. V. Harvey, Ambl. 335. (i) MS. Appendix, No. 11.1 (g) See Snape v. Tuf ton, Cro. Car. 472. 2 B in SlO or THE CONSTRUCTION OF POWERS IN GENERAL.' in such manner and form, and by and after such rates, shares and proportions, and charged and charge- able with such sum and sums of money unto and amongst any or either of tiiem, avM at sueli time or times as the mother should appoint : in default of appointment to the children as tenants in common in fee. The donee ap- pointed a sum to one child, and the estate, subject to that, to another (:i,s < he court determined) in tail, with remainder to the iirst in tail. And Sir Thomas Sewell, blaster of the ixolls, decreed in favour of the appoint- ment. In ill-penned powers of sale, it sometimes happens that the party is t;uthoriscd to appoint the estate to the purchaser, his heirs and assigns, which should never he done (k) ; for it has in this case also been contend- ed in ])raciice, that tiie estate can only be appointed to the purchai^er in fee, and not to uses to bar dower, or to any other uses which the case may require. T(> obviate this difiiculiV, where it was ii tended to bar the pur- chaser's wife of dower, it has been recited (contrary to the fact) that the contract was entered into by A, as agent for B, the real purchaser, and the estate has been conveyed to A, in fee, in trust for the purchaser. But upon the authority of Phelp and iJayit may be thought that the doubt in this case is not founded. If it be founded, tlien there is grent reason to contend that the estate utiisl be conveyed to (he purchaser himself in fee, and that a conveyance to a iictitious purchaser as a trus- tee would be absolutely void, he not being an object of the power. But really, when it is once admitted that the intention of the power is to be regarded, and not the (/.') Fide supra, p. lo6. precise f)F THE CONSTRUCTION OF POWERS IN GENERAL. S71 precise terms of it (I), there seeras to be no ground for this practice. The intention expressly is, that the in- heritance of the estate shall be sold, but the mode of the conveyance rests in the breast of the purchaser. The direction siraplj amounts to a declaration, that the fee shall belong to the purchaser. It merely expresses what \vould be imjilied in the power, in the absence of an ex- press provision, it being clear, that a power to trustees to sell an estate will authorise them to appoint the estate to the purchaser in fee, although the power be silent on that head. Now, if the direction were wholly omitted, it would scarcely be doubted that the estate might be conveyed to any uses the purchaser should desire. There- fore, according to the rule of law, that expressio eoriim quce tacite insunt nihil operatur, it may be con- tended, independently of decision, that although the trustees of Ihe power are only authorised by the words of it, to appoint the estate to the purchaser in fee, yet they may appoint it to uses to bar dower, or in any other maimer that the purchaser may direct. The case of Phelp and Hay only shews that a less in- terest may be appointed than that authorised where the interest is a freehold. But the same principle applies to chattel interests; nor are cases wanting on this head. In the case of Briers or Breers and Boulton (m) (which like most of the cases in the same reporter it is scarce- ly passible to comprehend), it seems to have been holden at law, that under a power to grant an annuity lill 2(X)/. was received, an annuity might be granted till a less sum was raised ; and Jones and Twisden said, that on the statute for leases otherwise than for three (I) See Morris v. Preston, infra. {m) 3 Keb. 6g2 745. 2 B 2 lives 5t2 OF THE .CONSTRUCTION OF POWERS IN GEN£ ttAt. lives or twenty-one years, a lease for kss is j^ood, which is a clear point. And in the case of Harris v. Bessie («). a power was given to devise 300/.; and the donee dis- posed of 200/. by fifties, and it was held good by the court, and they took a distinction between a power of attorney to make a lease, and a power reserved for that purpose. In the first case a lease cannot be made for less, in the last it may. Where a power is to lease for any term or number of years not exceeding a giveii number, a lease may of course be made for any term within the limit. In Winter v. Loveday, a question arose upon a com- plicated power, whether it authorised a lease for a term absolute or dependent upon lives (o). The power was to lease, "if in possession for one,lwo ,or three lives, or for the term of thirty years, or for any other number or term of years, determinable upon one, two, or three lives, or in reversion for one or two lives, or for the term of thirty years, ovfbr any other ;mmber or term of years, determinable oi; one or two lives.*' Mr. Jus- tice Rokeby held, that a term could only be granted determinable upon lives; but Lord Chief Justice Ilolt and Turton, and Eyre Justices, held, that a lease for thirty years absolutely was good within the proviso ; for the words of the proviso were for one or two lives, or for the term of thirty years, or for any other number or term of years, determinable on one or two lives, &c. where the repetition of the particle (for) disjoins and separates the sentence, and makes so many distinct clauses, so that the donee had power to make leases (w) I Keb. 347. (0) 1 Com. 37, and other books. either OF THE CONSTRUCTION OF POWERS IN GENERAL. 373 cither for one or two lives, or for thirty years,, or for any number of v^ears, determinable on one or two lives ; he had his election to make the one lease or the other ; if he could not lease but for thirty years determinable on two lives, the preposition (for) in the clause (for the term of thirty years) would govern the whole sentence, which would have been penned in this manner, viz. For the term of thirty years, determinable, &c. or rather, for any term or number of years, determinable on one or two lives ; for if such a construction wore to be made, whtit occasion would there be for these words (for the term of thirty years) ? They might be entirely omitted ; but as the sentence runs, for the term of thirty jears, or for any other number or term of years, such repetition or reiteration makes them distinct clauses ; and as the first (for) governs the first clause (for the term of thirty years), so the last preposition (for) go- verns the latter clause (for any term or number of years determinable, &c.) and explains the intent of the parties to be, that leases might be made for any number of years determinable on lives, so in like manner for thirty years absolutel}'. In the case of Lutwich and Piggot (p), the power was to demise for three lives or twenty-one years, or under or for any term of years, upon one, two, or three lives, or as tenant in tail in possession might do. It was insisted, that a lease for tweuty-one years onlv could be granted determinable upon lives ; but the court, with great reason, supported a lease granted under the power for ninety-nine years, determinable upon three liv^s. {p) 3 Mod. 268. Sb3 a 374 OF THE CONSTRLCnON OF POWERS IN GENERAL. A gQiienil power to a tenant for life to grant a terns or estate, without specifying the duration of it, w iU enable him to grant a term bejond his own life, altho' it defeat the remainders over, for otherwise the power would be merely idle and void, as every tenant for life may alien the estate during his own life (/)). A power to grant an interest in possession will not of course, authorise a grant in reversion. What amounts to a revcrsicJn is a question which generally occurs only on leases, and shall therefore be reserved for the next chapter. In the same place we shall have occasion to consider in what cases concurrent interests can be grant- ed {q). But we may here notice, tliat although ii re- versionary interest should be granted when the power authorises a grant in possession only, yet equity will in some cases supply the defective execution of the power, where there i^ a meritorious consideration in the ap- pointee (?*). In considering the extent of a power, the intention of the parties must be the guide. Tlius on the one hand a power limited in terms, has in favour of the intentini been deemed a general power, whilst on the other hand a general power in terms has been cut down to a parti- cular purpose. The case of Talbot r. Tipper [s) is an instance of the first construction. In a settlement by Sir John For- tescue, he reserved a power to make leases with fine or without tine, and rendering siicJi rents and services as lie should think Jit. He mao^ a lease without reserving mty rent ; and it was cbjectcd, that some rent ought to (p) Hele V. Green, 2 Ro. Abr.2()I , (r) Anon. 2 Freem. 224, pi. 10.. {rj; Chap. 10. sect. 3- (*) Ski". 427. OF THE CONSTRUCTION OF POWERS IN GENERAL. 3T5 be reserved, and there not being any, his power was not well executed ; but the objection was overruled, because it being to reserve such rent as he should think fit ; and he having thought fit to reserve no rent, this should not avoid the execution of the power, and especially he not having said such yearly rent ; so that a pepper-corn re- served payable forty years after would have been suffi- cient, and therefore such matter should not be regard- ed as a cause sufficient to avoid the lease, where he had made it subject to a trust to pay the rents, issues, and- profits to such persons as he should direct. In the late case of Morris v, Preston (g), it appeared that in a settlement powers of sale and exchange were given to the trustees to preserve contingent remainders. And there was a power in case of the death of any or either of the trustees for the husband or wife or the sur- vivor with the consent of the surviving co-trustee or co-trustees, to appoint a new trustee or trustees, and upon such appointment the sui^viving co-trustee should convey the estate, so that the surviving trustee and trus- tees, and the new trustee or trustees might be jointly concerned in the trusts, in the same manner as such sui^- viving trustee smd the person so dying would have been in case he were living. The purchaser objected to the title of the trustees under the power of sale, because they were not appointed until the death of both the trustees under the original settlement, which was not authorised by the power ; but the objection was waved without argument. Now the power in terms clearly did not extend to the event which happened, it contemplated only an appoint- ment on the death of one trustee, and not an appoint- (s) 7 Ves. jun. 547. 2 B 4 ment 376 OF THE CONSTRUCTION OF POWERS IN GENERAL. raent after the death of both, but the ground on which the plahitifi's counsel waved the objection, must be, that the intention of the power was, that new trustees sliould be appointed whenever circumstances rnij^ht require it. Clear as this point appears to be, it is to be regretted that tlie opinion of the court was not taken upon it. It has more than once happened, that what counsel have given up in argument, the court have enforced. An example of the second kind is exhibited in the case of Bristow I'. Warde (/?). Tiiere by marriage articles funds of each party were agreed to be settled on the hus- band and wife, and then as the husband should appoint general! (h and in default of appoint»»ent to the children of the marriage as usual. It was insi^Jt8d that his power was indefinite, and not confined to children. But Lord Rosslyn, after observing that the articles were made in order to secure a provision for the intended w ife, and the issue of the marriage said, that it would be a forced construction of articles, to hold that a provision to be made for children, in default of appointmi^nt to be equal- Iv distributable^ in the case of an appointment should be subject to his debts ; which would be the necessary consequence of holding that he had an indefinite power of appointing; for if he had that indefinite power, it would be assets ; he might appoint to any one ; his cre- ditors could affect it ; and if he executed his power for the children, the children must take it subject to the debts of their father It was not, he added, the natu- ral frame of such a settlement, nor was it the construc- tion of the words of this. It was clear the power of ap- (k) 2Ves. jun. 336. pointraent ) OF THE CONSTRUCTION OF POWERS IN GENERAL. 377 pointiiient was not indefinite ; but was confiried to the issue. Thecases'of Lord Hinchinbroke v. Seymour (i), and the Earl of Tankervilie v. Coke (A*), which have been already noticed^ are also strong authorities that a ge- neral power maj be restrained to a particular pur- pose^ where the intention of the parties demands such a construction. And in Mildmaj's case in my I^rd Chief Justice Coke's first report (/), the estate was set- tled in default of issue male, on the settlor's three daugh- ters in tail, with cross remainders. And it was pro- vided, that Sir Henry, the settlor, might " limit any part of the lands to any person or persons for any life, lives, or years for the payment of his debts, perform- ing of his legacies, preferment of his servants, or any other reasonable considerations as to him should be thought good." One of the daughters died, where- by the two others became seized of the entirety, and Sir Henry limited a great part of the land to one of the surviving daughters and her husband for a thousand years without reserving any rent. And upon these words in the proviso (other considerations), it was held that ihis word (other) could not comprehend any consideration expressed in the indentures before the proviso ; for (other) ought to be other in nature, quality, and person, and the advancement of his daughters is the consideration mentioned before. And it was resolved, that the limitation of a thousand years was as well against the intent of the parties, as against the words of the pro- (0 Supra, p. 215. {I) P. 175, a. (4) Sw/jra, p. 362. viso. 378 OF THE CONSTRUCTION OF POWERS IN GENERAL. viso, for the intent was to make distribution of his lands amongst his three daughters, and the heirs of their bodies; but if this limitation sliould be good, it would frustrate the estate of the other sister, and defraud the intent of the parties grounded upon a consideration of marriage. And this limitation for a thousand years, without any rent reserved, seemed also to be against the words of the proviso, for that cannot be called a reasonable consideration which tends to the subversion of the estates settled by the indenture upon good consi- deration, against the meaning of the parties. Where a power is given to appoint a fund (whether real or personal, and of whatever tenure ) amongst several objects either in esse, or to be born, and the fund is in default of appointment, given amongst the objects of the power, if there should ultimately be but one object of the power, an interest cannot be limited to him under the power, determinable on the happening of a particu- lar event, as his death under twenty- one without issue. This was decided in the cnse of Dee v. Denny (m). There under a marriage settlement the estate was limit- ►ed to the use of such child or children of the marriage, and for such estate and estates, and subject to such powers, conditions, provisoes, and limitations as the wife should appoint ; and in default of appointment, to iha use of the children in fee, and in deftiult of issue, then as the wife should appoint generally. There was only one child of the marriage, and the wife, by virtue of her powers, devised the estate to her son in fee ; and in case he should die under twenty-one, and without is- (m) Say. 295, reported 3 2 Wils. 337, cited. SJIC I OF THE CONSTRUCTION OF POWERS IN GENERAL. 373 sue (1 ), then over. The court said^ that it was clearly the intention of the parties to the settlement, that the issue should take an estate in fee, and after shewing that the general power given to the wife never arose [n), thej held that the son took an estate in fee under the devise to bini, or an estate in fee under the marriage settle- ment ; and, in one report, it is said that the wife could not alter the estate of the son. In the later case of Roe v. Duut (o), a copyhold estate was surrendered to the child or children of the marriage in such proportion and proportions, and for such estate arid estates as the husband and wife, or the survivor should appoint; and in default of appointment, then to all the children in fee as tenants in common ; and for want of such issue to the husband in fee. The husband who survived his wife, appointed to the only child of the marriage in fee when she attained twenty-one ; but if she died under twenty-one, then he gave the estate over j and the whole court of C. B. were clearly of opinion, thatthe husband had no power to make such appointment; but there being only one child of the marriage, that child was entitled to the whole estate in fee. But Lord Chief Justice Wilmot said, that he thought a single child in such a case as this might be made tenant in tail. This case was decided on the authority of the pre- ceding case of Roc and Dunt, but the court thought the case at bar was a stronger case; for if this power could have taken place, and the child had died under (n) Fule suprap.2]g. (o) 3Wils. 336. (1) These words, which are very important, are not noticed i«l Sayei'a report. twenty- 380 OF THE CONSTRUCTION OF POWERS IN GENERAL. twenty-one, and left issue, that issue would have been disinherited. It is observable, that neither of the fotegoing cases is an authority, that where the power authorises, not merely a distribution as to shares, but also an appoint- ment of the quantity of estate, or interest in tlie land to be acquired by the objects of the power, the donee can- not limit a less estate than a fee to the sole object of the power, so as an ahsolutc and not a defeasible estate he limited. On the contrary. Lord Chief Justice Wil- mot expressed his opinion, that a single child might in such cr-se be made tenant in tail, and by a parity of rea- son the child might be made tenant for life, although a limitation for life would be nugatory where the object takes an estate of iuheritaiice in default of appohitnient, as the estate for life limited to him under the power, mould merge in the estate of inheritance. But Mr. Ser- jeant Wilson, the reporter, adds a quere to the opinion of the Lord Chief Justice in Roe and Dunt, on the ques- tion under consideration. He does not, however, ad- vance any argument against the opinion, nor perhaps w ould it be easy to frame one. Where the power, as in that case, authorises an appointment to the child or chil- dren of the marriage, for such estate and estates as the donee shall limit, the words of the instrument cannot be satisfied without giving the donee a power to limit the quantitij of estate to be taken by a single cliild, the only object of the power. A contrary construction would lead to endless difficulties. Suppose there to be two objects of the power,,it will be admitted that an appoint- ment of the estate to them in tail, with cross remainders between OP THE CONSTRUCTION OF POWERS IN GENERAL. 381 between them in tail would be good, then take it that one dies in the lifetime of the donee of the power with- out issue, so that the survivor becomes the only object of the power, can it be seriously argued that the ap- pointment would in that event become void, and that he would take the fee under the limitation in default of ap- pointment ; and if this appointment be good, does it not follow on the same principle that an appointment to a single, and the only object of such a power in tail, is €t[ually valid ? But where the power simply authorises an appoint- ment of the shares to be taken by the objects, the power necessarily ceases when there is only one object, as he of course must take the whole. Thus where by marriage articles, leaseholds for lives were agreed to he conveyed to trustees to the use of the issue of A and B, in such shares and proportions as A should appoint, and for want of appointment, to go to the children equally. There was only one child ; and Lord Redesdale held, that this power was only to limit proportions, and that only in the event of the existence of more children than one ; consequently the power ne- ver arose at all, there having been only one child capable of taking under the settlement, and the instrument, he added, was .to be considered as if the power had not bten inserted (p). In the cases hitherto discussed, it is of course assumed, that the object of the power takes the estate under the settlement in default of appointment ; for it is clear, (p) Campbell v. Sandys, 1 Rep. where the power only extended T. Redesdale 281 ; and see Folkes to the case of several objects. V. Western, g Vcs. jun. 456, that 382 OF THE CONSTRL'CTI.)N OF rJVVLRS IN GLNZRAl. that if the object can only take the estate by anexecii- lion of the power, it may be appointed (o him. And even if he take a share of the estate in default of ap- })ointment, yet the entirety may be appointed to him. This was decided by Lord Thurlovv in a case where a power was given to appoint personally amongst children, and in default of appointment, the fund was given to the chil- dren equally to be vested at twenty-one, although they died in the lifetime of the donee of the power. - There were two children, one of m horn attained twenty-on*^. and then died, antl the donee appointed the entirety to the surviving child. Lord Thurlow said, that where there are only two children, the power by way of exer- cise of discretion is totally gone by the death of one be- fore it is exercised, and it cannot be the same power in point of extent, as when meant to be a distribution among several, for which it is necessary there should be several. Rut thio clause made it proper for the do- nee to express, that she did intend the power to be e\e- cuted. If there was no appointment, the consequence was, each would be entitled to a moiety, because there was no appointment. In respect of that clause, she had a power to appoint to one only ; for though that was not a distribution, it was an expression that it should go by 'appointment, and not transmit for want of it. And he decreed accordingly (g). And here it may be observed, tliat where a power is given by will to appoint an estate amongst several ob- jects, and the estate in default of appointment, is gi\cii to them as tenants in common, the death of any of the ob- jects in the life of the testator, will pro la?ito, defeat the {q) Boyle ^^ Bishop of Peteiborongh, 1 Ves.jun. 2gg. power OF THE CONSTRUCTION OF POWERS IN GENERAL. S83 power and dovise over, so that the power and devise will only remain as to the shares of the survivors (r) (1). But as it is clear, that under a devise to several as joint- tenants, the, share of any dying in the testator's life- time does not lapse, but goes over to the survivors (s), it should seem, that where the estate in default of ap- pointment, is given to the objects of the power in joint- tenancy, as the survivors would take the whole in de- fault of appointment, the pov/er itself ought still to ride over the entirety, and not be conlined to the shares of the surviving objects. 11. Secondly, As to the construction of limitations in instruments executing powers. A power may be exe- cuted by any act inter vivos or by will. In the execu- tion of powers by deed or other act inter vivos, techni- cal expressions are as necessary in the limitation of the estate as in feofi'ments or gifts at common law : There- fore, if under a power the estate be appointed to A, and the deed express or limit no estate, the appointee will lake an estate for life only [t) ; so if the estate be limit- ed to A for life, remainder to his issue male, the father (r) Reade v. Reade, 5 Ves. jun. see 1 Salk. 238 ; Doe v. Under- 744; Casterton t). Sutherland, wood,\Villes, 293; Peat t>. Chap- 9 Ves. jun. 445. man, 1 Ves. 542. (5) Davies 1;. Kempe, Cart. 2 ; and {t) See Co. Litt. 42 a. (1) This is the point which this case appears to have decided, but it is not easy to collect the fact ; see 5 Ves. jun. 744 ; 8 Term Rep. II8., The decree does not advert to the grounds of the decision. The defen- dant claimed as the survivor of the fovrr children. Reg. Lib. B. 1800, fo. 7O8. would 384 OF THE CONSTRUCTION OF POWERS IN CENLRAL. would take for life only, and his sons would take as purchasers and joint tenants for life. 'Again, a limita- tion to A for ninety-nine years, and a subsequent limita- tion to his heirs, or the heirs of his body, cannot coa- lesce ; nor can a limitation of a legal estate of inheritance under a power, coalesce with a previous equitable estate of freehold to the same person, although vested in him by the instrument creating the power. And so in every other case which may be put, the construction would be the same as upon a feoffment at common law(7/). But Lord- Hardwicke laid it down as his opinion, that words of regulation or modification of the estate, as the words equally to be divided are, and not words of limitation, might have greater latitude given to them in deeds un- der the statute of uses than in feoffments ; and he accor- dingly decided, that the words equally to be divided in a deed operating under the statute, would create a te- nancy in common (x); which point was afterwards so- lemnly determined the same way by the court of King's Bench in the year 1753 (ij). However, the student should be cautious how he extends this doctrine, as it is difficult to put many cases to which it would apply. But a greater latitude is allowed in nvills executing powers ; for as mc have seen, wills executed under powers must receive the same construction as proper wills. It seems indeed once to have been doubted whe- ther a will made in exercise of a power could bocoii- (u) See Makepeace v. Fletcher, 2 v. Best, 1 Ero. C. C. 333 ; Dos Com. 457 J Rigden v. V'allier, a; Morgan, 3 Term Rep. 70.5. 3 Alk. 731 J 2 Ves. 252; Tapncr (x) Rigden v. Vallier, uli n/f). V. Merlott, Willesj 177j Stratton (3/) Goodtitle v. Stokes, 1 \Vil.s.34l > Say. 07. sidcrcd OF THE CONSTRUCTION OF POWERS IN GENERAL. ^SJ sidered as a proper will. In an opinion of Mr. Justice Burnet'Sj on a case referred to him (a), he seemed clear- ly of opinion that a power executed by ^yiI! must be construed the same as if executed by deed. He said, addressing himself to the limitations in the will, "^ For if such a limitation in the deed would be bad, such an appointment bj virtue of that deed would be as bad. Nor will it yary the case that such an appointment is expressly allowed to be made by will; for the appointee is not in by the will, but under the deed, and the will is only directory as to the person and estate to be taken under the deed [b). Nor is such an appointment a de- vise within the statute of wills." But in the Duke of Marlborough v. Lord Godolphin (c), Lord Hardwicke expressly said, " So if a power is given by deed to appoint lands by will, and the per- son to whom the power is given makes a will and gives the lands to A and his issue, the law says, that tiiough such appointee takes under the power, yet the execution of the power being by will, it shall receive the same construction as if a devise of lands, viz. an estate tail. So if it had been to A for ever, that would have been an estate in fee. It was never doubted but that the construction of the words would be the same exactly as if he took strictly and properly under the words of a will." And conformably to this opinion in a later case of an execution of a power by will. Lord Hardwicke held, that altho' the will was not a proper will, yet that the words (fl) See I Vol. Cas. and Opin. 33. 1 Bulstr, 200) Lemainc's case. (L) 6 Co. 10 J Sir Ed. Clere's case; (c) 2 Ves. 6l. 2c of 386 OF THE CONSTRUCTION OF POWERS IN GENERAL. of it Mere to have the like coiistnicf ion as if it was a pro- per will ; for, otherwise;, there would he a str- nge confu- sion in the construction of writings, if they were to have one construction where proper wills, and another where improper : the words therefore of such writings are to receive the same liberal and beneficial construction as the words in a proper will. And he determined an in- formal limitation to be an estate tail, ajthough clearly it could not have been so construed had it been contain- ed in a deed (d). So in a case in the year I77S, where by a will made in execution of a power, the estate was given to the ob- ject of the power and his assigns for his life, with re- mainder to a trustee and his heirs during the life*of the object, in trust to preserve contingent remainders, with remainder after his decease to his issue in general tail, with remainders over ; Sir Thomas Sewell decreed that the appointee took an estate tail (e). We shall again have occasion to touch upon this doctrine, in consider- ing the cases upon excessive executions (/). And here we may notice a point in the case of Clin- ton V. Seymour (gj, which arose upon a deed. The Duke of Newcastle and his son, the Earl of Lincoln, having a joint power of charging a sum on an estate, directed 16,000Z. part of it to be raised and paid to them, their executors, administrators, or assigns ; and by a deed of even date it v/as agreed, that if the Earl should survive the Duke, he should apply the money in (d) Southby v. Stonehousc, 2 Ves. No. 11 j see Coulson v. Coulson, 6lO J and see Robinson v. Hard- 2 Str. 11 25. castle, 2 Bio. C. C. 30. (/) See post, sect. 8. {e) rhelp V. Hay, MS. Appendix, {^) 4 Vcs. jun. 440. pajnieut OF THE CONSTRUCTION OF POWERS IN GENERAL, 387 payment of the Duke's debts, and the residue should go as part of the Duke's persoiial estate ; and if the Duke survived it was to go in the same way, only of course he himself was to make the application. The Duke did survive; and in consideration of 1 4,'JOOZ. and natural love and affection, assigned the I6,000Z. to one of his younger children. It was insisted that the Earl of Lin- coln's object was defeated, as he inteiided the money to be applied only in payment of the Duke's debts, and that the son purchasing the 16,000/. was bound to see to the application of the purchase money. But as to the 14,900/. Lord Alvanley considered the son a purchaser for a valuable consideration, and not bound to see to the application of the money. The question, he said, then remained as to the sum of 1100/. whether that was not appointed in breach of some trust in the Duke. It was a very extraordinary transaction, and all these strange words, he was afraid, were only a circuitous way of saying it was for the Duke himself. However, he thought that the executors of the Duke were the only persons who could call for an application of that sum, on the supposed undertaking of the Duke not to give it gratuitously, but to apply it to the discharge of his debts; he accordingly retained the 1100/. with liberty for the parties to apply within twelve months. If nu application, to be paid to the appointee. III. Thirdly, We are to consider umat acts poicers in general authorise. It is clear that a power to make par- tition of an estate will not authorise a sale or exchange of it ; but it has frequently been a question amongst conveyancers, whether the usual power of sale and ex- change does not authorise a partition, and several parti. 3 c 2 tioas 388 OF THE CONSTRUCTION OF POWERS IN GENERAL. tions have been made by force of such powers under the direction of gentlenicn of eminence. This p;.int under- ■\vent considerable discussion on the title which after- wards led to the case of Abel c;. Heathcote («), The late Mr. Fearne thought, that the power did authorise a partition, on the ground that tlie partition was in effect anexchang'e. The power was to make fialc of or convey in cjTc/zflnge the estate for the best, or such other equivalent interest in lands as the trustees should think proper, and for that purpose, to revoke and limit new uses. The case was first heard before the Lords Commissioners Eyre, Ashurst, and Wilson, 'i'hey all thought that the power was to receive a liberal construction, as its object wa^ to meliorate the estate. Eyre thought, that upon the word sell, the trustees should have a power of mak- ing partition, because it was in effect to take quite a new estate. And Ashurst and Wilson thought, that what- ever power might be derived from the word sell, the other words of the power, convey for an equivalent were sufficient. They, however ultimately declined to de- cide the question. Upon the cause coming on before Lord Rosslyn, he determined that tlie power was well executed, and founded his opinion on its being in efiect an exchange, as the consequences and effects of a parti- tion and exchange, as to the interests of the parlies arc precisely the same. Nearly the same point was again agitated in the late case of M'Queen and Farquliar (:'). There, however., the power in terms only authorised a sale. Upon the first hearing, LoFd Eldon expressed his ophjion, that even a power to exchange would not authorise a parti- (a) 4Bro. C. C. 2/8, 2 Vcs. jun, 98. (J:) 1 1 Ves. jun. 46;. tioii, OF THE CONSTRUCTION OF POWERS IN GENERAL. 389 tion, and in delivering judgment he expressed the same opinion more strongly, and said he should rather have been inclined to decide Abel and Hcathcote upon the words, "such other equivalent interest in lands," &c. But without infringing upon that case, he determined that a power of sale simply, docs not authorise a par- tition, whatever a power of exchange may do. Until the question shall receive a further decision, it can scarcely be considered clear, that a power to ex- change will authorise a partition. It is at least very doubtful upon what ground Abel and Hcathcote was decided, whether upon the power of sale, or upon the power of exchange, and the principle of Lord Eldon's decision is in complete opposition to that of the Judges in Abel v. Hcathcote. They contended that the power was for the melioration of the estate, and was therefore to receive a liberal construction. Lord Eldon insists, that the terms and limitations of a power must be observ- ed, according to the contract, or the new^ use will not arise. And it may be observed, that if Abel and Hcath- cote cannot be defended, on the broad general ground of a partition being authorised by a power of exchange, it certainly cannot be supported by the words, '" such other equivalent interest" in lands, &c. For the power did not authorise an exchange, or a disposition for any other equivalent interest in lands, but simply an exchange of the settled estate for an equivalent interest in other lands. These, or words to the like effect, must of necessity be expressed or implied in every power of exchange, and cannot, by any licence be cut out and read as authoris- ing a distinct, independent act. But as Lord Rosslyn has observed, this objection may be obviated where there is a power of sale. The !^ c 3 undivided S90 OF THE CONSTRUCTION OP POWERS IN GENERAt. undivided part of the estate maybe sold ; the trustees mav receive tlie money, and then lay it out in the purchase of the divided part (c) ; and although the sale is merely fictitious in order to effect the partition, yet it should seem that the transaction cannot be impeached. The same ^observation applies to an exchang^e under a power of sale. The estate may be sold to the owner of the estate intended to be taken in exchange, and then the money may belaid out in the purchase of this last estate (1). It was formerly a very considerable question, whe- ther a tenant for life, with a power of ?ale and exchange in himself, or to the execution of which his consent was required, could buy the estate himself, or take it in ex- change for an estate of his own. As to an exchange, it was insisted that the power meant an act that bore as near a resemblance to a strict legal exchange as possible ; and that therefore there must be two different persons to reciprocally exchange, which there could not be where the tenant for life had the power himself. And in re- gard to the general question, it was doubted whether at least equity would not relieve against the execution of the power. Lord Eldon, although fully aware of the danger attending a purchase of the inheritance by a te- nant for life, seems to think that it cannot be impeach- ed on general principles (rf). A few years ago, how- (c) See 2 Ves. jun. 101 ; 4 Bro. C. C. 285. (rf) See 9 Ves. jun. 52; and 11 Ves. jun. 460 ; but see ib. 4/6,477. ( I) There is a case now depending In the Couit ot Chancery, where, under a power of sale, the estate was sold, and the money immediately laid out in the purchase of a rent-charge out of the same estate. The bill was filed by a vendor to obtain a specific performance against the purchaser, %vho objected to the title. ever. OF THE CONSTRUCTION OF POWERS IN GENERAL. 391 ever, the doubt was stated as a ground for requiring the aid of Parliament, in a petition for an act to enable an exchange of settled estates with the tenant for life, which it was conceived could not be done under a power of sale and exchange in the settlement. The Chief Ba- ron, and Mr. Baron Hotham, to whom the bill was re- ferred, reported, and submitted it as their opinion, thatT the doubt which was the cause of petitioning for the bill was not well founded ; and therefore, that the bill was unnecessary, and that the passing of such a bill might cause a great prejudice to numerous titles under execu- tions of powers of sale and exchange of a similar kind : and the House of Lords accordingly rejected the bill ; in consequence of which many estates of great value have since been purchased, and taken in exchange by tenants for life, under the usual powers of sale and ex- change. ^'Where a power of sale is given, the object certainly i» not to turn the land into money so as to increase the in- come of the tenant for life at the expense of the persons entitled to the inheritance, although every well drawn settlement contains a clause expressing, that until a conve- nient purchase can be found, the trustees shall lay out the money in the funds at interest. Lord Eldon addressing himself to the usual words in powers of sale, that the trustees may sell for such price as shall appear to them to be reasonable, observes, that that expression must be construed at least in a question between the trustees and the cestuis que trust, ai^tev they have with due diligence examined. The object of the sale must be to invest tha money in the purchase of another estate to be settled to the same uses ; and fhey are not to he satisfied with pro- haMlity upon that; but it ought to be with reference to ^c 4 aa 392 OF THE CONSTRUCTION OF POWERS IN GENERAL. an object at that time supposed practicable, or at least the court would expect some strong; purpose of family prudence justifying the conversion, if it is likely to con- tinue money (f ). The conclusion of the sentence shows, that Lord El- don is not to be understood to mean, that the estate cau- •"^Iftot, under any circumstances, be sold, unles^ the trustees have another estate in direct view. The usual direc- tion that un^il a convenient purchase can be found, the money shall be laid out at interest, directly negatives that construction of the power, and many proper reasons fre- quently occur to induce trustees to sell the estate, al- though they have not an immediate prospect of purchas- ing another — as an advantageous offer, &c. And cer- tainly where a sound discretion has been exercised, equity could not allect the trustees as for a breach of trust. But to return. — A power to sell and raise a sum of mo- ney, implies, it seems, a power to mortgage, which is a conditional sale (/); and a power generally " to raise a sum" out of an estate, enables a sale of it {g). But where a power is given to raise money by sale or mortgage, if the parties intend that a sale may be made after a mort- gage in order to pay it off, the intention should be clearly expressed, as it is doubtful whether, if a mort- gage be first made, the power is not wholly exhausted, so that a sale cannot afterwards be made to exonerate the estate ; and it is clear, that in a case of this kind the mortgagee cannot require a sale even if the power authorise a sale, for he is no object of the power, fur- ther than as that power enabled the donee to make him (e) lOVes.jun. 309. (g) Wareham v. Brown, 2 Vern. (/) M-Us V. Banks, 3 P. Wnas. 9. 153. a I OF THE CONSTRUCTION OF POWERS IN GENERAL. S'i^S a good mortgage. When he has that^ he is in the ordi- nary situation of a mortgagee. He has all the remedies^ but only the remedies of a mortgagee (//). Where a power of charging is given by an instrument in which different funds are comprised^ and the power is not expressly confined to one fund in particular^ the question, whether the power embraces both funds or only one of them, must of course depend upon the con- struction of the, whole histrument, and it is obviously impossible to lay down any general rule on the subject. But it should seem, that where a person has an absolute interest in trust given to him in one fund, and not such an interest in the other, and the settlor of the two funds gives him a general power of charging, the power shall relate to that fund only in which the donee has an ab- solute interest (A). A power to charge land with a particular sum enables a charge of that sum, and the interest besides, for the intention is to charge the estate with the money, and that of course carries interest; and no one would lend such sum on such security if the law were otherwise (/). But where a man, having a power to charge an estate with 2000/. after the death of his wife, gave lOOOZ. to his wife, payable, with interest from three months after his death ; Lord Hardwicke held, that the gift of this 1000/. was an execution of the power, although {h) Palk -v. Clinton, 12 Ves. jiyi. (/) Lord Kilmurry v.Geery, 2 Salk. 48 ; but as to the principal ques- S38 j Evelyn -u. Evelyn, 2 P. lion, see Omerod v. Hardman, "Wnis. Sgi ; Boycot -v. Cotton, 5 Ves. JHn.722. 1 Atk. 552; Hall v. Carter, 2 (k) See Doe v. Milborne, 2 Term Atk. 358 ; and see Lewis v. Rep. 721 . Freke, 2 Ves. jun. r^oy ; Sitwell V. Barnard, Ves. jun. 520. there 1 394 OF THE CONSTRUCTION OF POWERS IN GENERAL. there was a mistake as to the time it would be raised. Then it was insisted^ that as the widow had 1000/. left her, with interest^ fand the principal could not be paid at the time intended] the interest should be made good till it amounted to 2000/. which he had power to raise. But Lord Hardwicke determined that the interest should lUiot be made good out of the power, for that was to charge the estate with a principal sum of 20(X)/ (m). {m) Probert v. ClifFord, 1 Alk.440. SECT, [ 395 3 SECTION III. WHERE AN EXCLUSIVE APPOINTMENT IS AUTHORISED. » » HERE it is intended to give a power of appointing- a fund to several objects, or to any of them exclusively, the power should run thus : to all and every, or such one or more exclusively of the other or others of the ob- jects as the donee shall appoint ; and in the common case of a power to appoint to children of the marriage, or their issue, it may run thus, providing for every event, to all and every, or such one or more, exclusively of the other or others of the children, or to all and every, or such one or more exclusively of the other or others of the issue of the children, or hoth, to all and every, or such one or more exclusively of the other or others of the children, audio all and every, or such one or more ex- clusively of the other or others of the issue as the donee shall appoint. But we are now to enquire in what cases an exclusive appointment is authorised, although these precise tech- nical words are not used ; and first, as to the cases where an exclusive appointment is not authorised. I. Under a power to appoint '' to all and every the child and children" (o), or " unto and amougseveral objects," every one must have a share (^). So even a power of (a) Pocklington v. Bayne, 1 Bro. 533 ; and see Maddison v. An- C. C. 450. drew, 1 Ves. 57 ; Baker v. Bar- (y) Malimi;. Keighley, 2 Vcs.jun. rett, SFreem. 199, cited. disposal 396 OF EXCLUSIVE APPOINTMENTS. disposal, " unto and amongst such children begotten between us, and in such proportion" as the wife shall appoint, compels a distribution amongst all the children, no child can be excluded (c). And in a late case(c/). Lord Alvanlej held, that a power to appoint "^ amongst the children as the donee shall think proper," did not authorise an exclusive appointment. He treated the word '' amongst," as equivalent to " all and every,'* which words are mandatory, that each shall have a share (e). And in an early case (/), upon a gift to the wife, '" upon trust and confidence that she would not dispose thereof, but for the benefit of her children," it w^as determined that no child could be excluded. But, II. On the other hand, powers to appoint " to such of my children as my wife shall think fit (g)," " to one or miore of my children as my wife shall think fit (/?), ' " to be at my wife's disposal, provided it be to any of my chil- dren (/)," " amongst all or such of my children (k)," " io and amongst such of my relations in such parts, shares and proportions {I)," (1) have been held to enable the do- (c) Alexander v. Alexander, 3 Ves Austin v. Austin, For. 74, cited. 640. {h) Thomas i;. Thomas, 2 Veni. {d) Kemp v. Kemp, 5 Ves. jun. 513. 849. (i) Tomlinson v. Dighton, 1 P. (c) Menzey v. Walker, For. 72. Wms. 149. (/) Gibson V. Kinven, 1 Vein, 66. (i) Macey v. Sliurmcr, 1 Atk. 889. (^) Liefe V. Saltingstone, 1 Mod. (/) Si ring u. Biles, 1 Term Rep. 189 ; and see 5 Ves. jun. 857 ; 435, n. (1) In determining this case, the court appears to have placed some stress on the power being for the benefit of relations. It seems, however, that the case must have received the same construction had the power been to appoint the children. nees OF EXCLUSIVE APPOINTMENTS. 397 nees to appoint exclusively to any of the objects. So where the power was to appoint unto, and amongst all such child or children of A in such parts, shares, and proportions, &c. as B should choose, it Mas liolden to au- thorise an exclusive appointment, although it was insist- ed that upon the word all none could be excluded ; but the Chancellor said, that the fault of the plaintiff's ar- gument was, that they stopped at the word " all.'' They must he added, go on and finish the sentence, and then it was, all such child or children as he shall appoint (tw). And this construction had previously been established by a case more difficult to manage. Under a marriage set - tlement, a real estate was settled to the use of such child and children, and for such estate and estates and pur- poses as the husband should appoint, and in default of appointmert, the estate was limited to the use of all and evtrif the child and children of the marriage in fee. The father made an exclusive appointment. Against the poster it was forcibly argued by the present Chief Justice of B. R. then at the bar, that the grammatical sense and construction of the words plainly imported, that the appointment must be ajuongihe children, to such child, if only one, and to such children, if more than one, that " and" could not be satisfied without giving a share to each, that the words such child, and such estate were only added to shew, that even if there were only one child, the father had a discretion as to the estate to be given to him, and that the words in de- fault of appointment, " to all and every the child and children," must mean the same as "^ child and chil- dren" in the former part, and they shewed that the (m) Wollen. r. Tanner, 5 Ves. jun, 218, power 598 OF EXCLUSIVE APPOINTMENTS. power must be executed in favour of every one of the chiklren. But the court construed the power to be ex- clusive, and read " or" for ''and.'* Ashurst J. consi- dered the case stronger, as the subject was realty and not personalty, and Ihat, if it had been intended that all should have derived some benefit, they would have said, *' among them," and they would not have used the word " child " in the singular number, which could only have been added for the purpose of giving a power to appoint to one only ; and Buller, J. thought the case of Spring v. Biles stronger than the present. There the power was " to and among such of my rela- tions, &c. in such parts, shares, and 'proportions,'' &c, which imported that a division was intended. But in the present case, the words " parts, shares, and propor- tions," were not used (I) (;?). In many cases an exclusive appointment may be au- thorised by the apparent intention of the donor, altho' no words of exclusion are expressly used. Thus in the case of Bevil v. Rich (o), the testator gave all the rCvSt of his estate to A B " on trust to give my children and grandchildren according to their deme- rits." A B gave the estate to one, omitting the rest. Lord Nottingham refused to set aside the appointment, as the children were to come in by the act of the devisee, (n) Swift v. Gregson, 1 Term Rep. ^ 432; and soe Kenworthy v. Bate, (o) 1 Cha. Ca. 309. 6 Ves. jun. 793. (1) These words, however, can scarcely be considered as important in any case with reference to the question under discussion, as they are inserted to meet the case of an appointment to two or more. and OF EXCLUSIVE APPOINTMENTS. 399 and he was to give or distribute according to their de- merits J therefore he was judge. So in the case of Burrell and Burrell (p), >vhere the property was given by will to the testator's wife, " to the end she might give his children such fortunes as she should think proper, or they best deserve, to whom he charged his sons and daughters to be dutiful and obe- dient, and loving and affectionate to each other." Lord Camden appears to have determined that the wife had a power to appeint to any of the children exclusively of the others. Lord Alvanley has observed, that he would not say what his own opinion would have been on that case. He was willing to submit to that of Lord Cam- den upon such a doubtful question, being perfectly sa- tisfied, that in criticising on the words '' to and amongst/' &c. the court goes against the intention (5). Again, in a case where a testator bequeathed a sum to his executor, "^ to be distributed amongst his poor relations, or such other objects of char iti/ " as the tes- tator should mention in private instructions : no in- structions M ere left, and it was not necessary to decide the point ; but Lord Redesdale said, that the testator's design was to give to them as objects of charity, and not merely as relations ; and he expressed his opinion, that the executors had a discretionary power of distri- bution, and need not include all the testator's poor rela- tions (?'). The word '^ such " standing unexplained, authorises, as we have seen, an exclusive appointment; but that {p) Ambl. 660. (/■) Mahon v. Savage, 1 Sch. and (y) See 5 Ves. jun. 860^ and see Lef. 111. ib, £63. word 400 OF EXCLUSIVE APPOINTMENTS. word is not unfrequently governed by a preceding clause, so as to mean a particular class or description of issue, all of whom must be provided for. And as a power to appoint cxclusivelj may be collected by implication, where an authority in express words is wanting, accor- ding (o tlic cases just dismissed, so an express power in terms to appoint exclusively may be construed to be merely a power of distribution, in order to efl'ectuate the clear intention of the parties. Both these points were determined by Lord Hardwickc, in the case of Burlcigli V. Pearson (s). Burleigh, previous to his marriage, by a deed of trust, declared the uses of a copyhold estate belonging to his wife ; reciting, that to make a provision for the maintenance and preferment of such younger children ivhich they should leave unmarried, and unadvanced or otherwise provided for at their deaths ; and for raising such sum as they should think requisite for the fortunes and preferments of such younger children, the trustees should raise 1000/. to pay tbe same to such younger children, in such manner and proportion as they should appoint by writing ; and in default of appointment by both, then to the said younger children, or some of them, as the survivor should appoint by writing or will ; in default of appointment, equally to be divided among them. The question was, whether an exclusive ap- pointment was authorised. Lord Hardwicke said, that the deed by which this trust was created was certainly very inaccurately penned, but a reasonable construction must be made ; and that from the intent of the parties {s) 1 Ves. 281 3 and see Alexander v. Alexander, 2 Ves. 640. fully OF EXCLUSIVE APPOINTMENTS, 401 fully declared in the beginning of the deed, which was the leading clause ; and therefore other doubtful words, if any, ou^ii be conlrouled and construed by that plain declaration of the intent, which was to make a provision for those vounffer children who should be left unmar- ried, &c. to which description the word such was plainly relative. " And," after unmarried, must be con- strued " or ;" and the negative must run through the whole, otherwise it was absurd ; for they certainly meant unprovided for ; and then a child, though mar- ried, if not advanced or otherwise provided for, would be the object of the power : and in this sense it was used in the will. Then, such, he added, referred to the de- scription before the governing clause through the whole, and did not mean a general po\^er to appoint to one or two, for all must have some. The contrary construction would overturn the intent ; impowering io give the whole to a child even provided for, and to Kave the rest unprovided. But the most doubtful part was from the words or some: but it would be stranere to construe this deed so as to leave greater power to dis- inherit in the survivor, than was given jointly, espe- cially if the husband survived, as happened, when it was the wife's estate. The addition of some must mean some of those under the qualifications before described, in the same manner as such. Another inaccuracv oc- curred afterwards in case of no appointment ; for it must not be construed to be divided among all, as well pro- vided for as not, but meant the said younger children, viz. unprovided. And he accordingly set aside the exe- cution of the power, because some of the objects were excluded, ^D In 403 OF EXCLUSIVE APPOINTMENTS. In the cases hitlierio considered, it is clear that tlic party may appoint to all the objects of the power, and the doubt is, whether he can exclude any, but a power may authorise an appointment to one of many objects, and not an appointment to all: thus in a case where the estate was g^iven by will, ''^to one of the sons of A as B shall direct;" Lord Alvanley said, that if he had made a disposition to all, it would have been void. Kc was obliged to select one. He had power, if he thought fit, to give it to any one son, and if he had gone beyond that, it would not have been well executed (p). Q>) Brown v. Higgs. 4yes. jnn. 7O8, fee pa§e7l?« 1 C 403 J SECTION IV. WHAT IS DEEMED AN ILLUSORY APPOINTMENT. Having once ascertained that none of the objects of any given power can be excluded from participating in the fund, the question at once arises^ whai share must each have ? At law, it is clear, that any share, how- ever nominal or illusory, will satisfy the terms of the power. The gift of a ring (a), or a shilling (Z>), will be a good legal execution of the power ; whereas in equity five shillings (. Andrews is m: rely an inaccurate statement of the former, or that that case has been confounded with some other. I could not discover the case referred to by Brown in the Register's book. There is a case in 1/82, Mallison v. Nesbitt, bat that turned upon a very dif- or POWERS TO APPOINT TO CHILDREN. 419 But, even full as these words were, yet^ unless the words " and to such uses and purposes," were consi- dered as an independent clarse, autliorising au appoint- ment even to strangers^ which perhaps can hardly be contended, the case it should seem cannot stand, con- sistently with the later determinations. In Alexander v. Alexander, after giving a power of appointment in favour of his children to his wife, the testator directed that if she should think fit to apply in her lifetime any part of the fund for their better ad- vancement in marriage, or otherwise in i\\c world, then the trustees should pay such part of it,ybr the hencfit of such children as his wife should appoint. Sir Thomas Clarke thought that this power would have enabled the mother, for better advancement in marriage, to make a strict settlement {ni). Where a child dies without any appointment having been made to him, no part can be appointed to his exe- cutor or administrator (n) ; and indeed, as we have seen, an appointment may be made to the surviving children or child, so as to exclude the representatives of the de- ceased child from taking any share under a gift in de- fault of appointment ( o). (m) 2 Ves. 640. In citing this (n) Maddison v. Andrew, 1 Ves. case, Mr. Justice Buller appears 57. to have overlooked this power 5 (0) Boyle v. the Bishop of Peter- see 2 Teroi Rep. 253. borough, 1 Ves. jun. 299. fer?nt question. Reg. Lib. B. ITSl, fol. 3S8. There is also a case of Mallison v. Robinson, Archdale, and others, which was a petition by a tenant for life under a will, and the question could not arise in that case, Reg. Lib. B. 1T82, fol. Q5. 2 £ 2 But 420 OF POWERS TO APPOINT TO CHILDREN. But il is settled, that in equity a valid appointmfnt may be made to persons not objects of the power, with the approbation of the real object of the power. There- fore, if upon the marriage of a child, the parent, by the marriage settlement, under a power to appoint to chil- dren appoint to the issue of the marriai.';c, tlie appoint- ment would be supported in equity, not as a good ap- pointment to the issue o/ the marriage, but as an ap- pointment to the child itself, and a settlement of it by him (j)) ; but of course the mere circumstance of the, child being made a party to the deed, and not execut- ing or assenting to it^ will not be sufficient (5). Hitherto we have seen, that children only are objects of the power; but it still remains to inquire vohat chil- dren come within the scope of the power. A power to appoint to children living at the parent's decease includes a child in ventre sa mere at that time (r). This point has been otherwise decided (s) ; but the law is now perfectly settled (f). In Coleman v. Seymour (?f), a man gave 3000/. to a married daughter for the use of her younger children, to be distributed amongst them as she should appoint; and Lord Hardwicke determined, that the gift did not extend to her children by a second marriage ; and he was of opinion, that it extended only to children living (p) Routlcdge V. Dorril, 2 Ves. Forbes, 2 Bro.C. C. 38, 63. jun. 357; Langstone v. Black- (/) Clarke ■:;. Blake, 2 Bro. C. C. more, Ambl. 289. 320 ; S. C. nom. Doe v. Clarke, (<7) Brudcnell v. Elwes, 7 Ves. 2H.Blaokst. 399; and seeThcI- jun. 382. lusson V. Woodford, 4 Ves. jun." (r) Beale v. Beale, 1 P. Wras. 24i: 226. [s) Pierson v. Garnet ) Cooper v. ("; l Ves. 209. ai OF POWERS TO APPOINT TO CHILDREN. 421 at the making of the will, or at the farthest at the death of the testator. This question, however, seldom arises upon powers, because generally an interest for life in the fund is given, to the parent, with remainder to his un1)oru children as he shall appoint ; in which case, it is clear that the pov>'er embraces all the chil- dren. This is the case of everj common marriage set- tlement (r). Where the estate is settled on the eldest son and sub- ject to that, a power is given of appointing portions to the younger children ; a younger child who becomes the eldest before receiving his portion is not within the power (x). So where a power was given to appoint a sum amongst younger children, provided that the eldest son, or the soji possessing the estate should have no share of it, and an appointment was made nominatim to Anthony, the second son, and the other younger chil- dren, and after the appointment Anthony became the eldest son by the death of his elder brother and the estate descended upon him. Lord Thurlow held, that Anthony could not take any part of the fund althougii the appointment was not revoked {y). But in a case where provision was made by a private act of Parliament for an eldest son, and a power was ^iven to the father to appoint a sum amongst his younger children, " Stephen, Martha, and Catherine," and Ste- phen, by the death of his elder brother, became entitled (u) See Baldwin v. Carver, Cowp. sect. 2; and see Lady Lincoln v, 309 ; Hughes v. Hughes, 3 Bro. Pelham, Bowles v, Bowles, and C. C. 355. Leake v. LeaLc, liVes. juii. (x) Chadwick-u. Doleman, 2Vern. IG6, 177, 477. 528 ; Lord Teynham v. Webb, (?/) Broadmead v. Wood, 1 Bro.C. 3 Ves. \9S ; vide supra, ch, 7. C. 77. Se3 to 422 OF POWERS TO APPOINT TO CHILDREN. to the provision made for the eldest son, and then the father appointed a considerable sum to Stephen under his power ; Lord Talbot said, this case arose upon an act of Parliament, in which the intent shall prevail against the very words, but then the intent must be plain and clear. Now Stephen was indeed called a younger child in the preamble, but when the power was given, it was not to appoint amongst the younger children generally, but to Steplien, Mai^lka, and Catharine ; and he held the appointment to Stephen to be a valid exercise of the power (a:). Upon this statement of the case, then, it seems to establish this principle, that where a younger child is included by his navne in a power, he will conti- nue an object of the power, although he lose his cha- racter of younger son. But Lord Talbot principally distinguished this case from that of Chadwick and Dole- man, on the ground that there the question was between the eldest son become so by his brother's death, and the other youi'ger children ; whereas in the case before him, Stephen was the only child left, and the dispute was be- tween him and the administrator of a deceased child, so that this case cannot perhaps be relied on as an authority for the general principle, which at first sight it seems to establish; and certainly if the rule in Chadwick v. Dole- man is the law of the court, the question in these cases ought to be, not \a helher the younger children are in the instrument creating the power called "younger chil- dren," or by their proper names ; but whether, upon the whole instrument taken together, they are treat- ed as younger children ; and whether, judging from the evidence to be collected from the instrument itself, a (x) Jermvn v. Fellows^ For. Q?,. portion I OF POWERS TO APPOINT TO CIIILDllEN. 423 portion would have been provided for them if thej had stood iii the place of their eldest brother. These cases profess to go merely upon the intention that the child is not a younger child within the power, and by a parity of reason where an eldest child is in ef- fect a younger child, Hiiith reference to the estate, he may be an object of a power to appoint to young-er children j as where an estate is settled on the son, and there is an eldest daughter, there, although in pohit of age the daughter is eldest, yet it is well settled that the son, as he takes the estate, though not so by primogeniture, shall be considered an eldest child, and the daughter, though eldest, shall betaken as a younger child (or); so an elder son unprovided for may take under a provision for younger children, as it is to the intention, and not to the words elder or younger that the court adverts (^). But of course the chaime J^ character must take place before the receipt of the money, clearly a younger son becoming eldest, and taking the estate itself, cannot be called upon to refund a portion received out of the estate whilst he was a younger child, and in that charac- ter (z). It remains to observe, that in the case of Hall v. Hewer {a), Lord Hardwicke laid it down, that there was no case where the court had considered a youngest child (T)Pierson'z\ Garnet, 2 Bro.CC.J^S. see Emery v. England, 3 Ves. and secBeale v. Beale, 1 P.Wms, jun, 232. 244 J Lord Teynham f. Webb, (^z) And see Graham v. Lord 2Ves. 210 3 Heneage a?. Hem- Londonderry, 2 Ves. IQQ. 531, locke, 2 Atk. 456} Billingsley citedj but see ib. 212 } and see V. Wells, 3 Atk. 221. Loder v. Loder, ib. 530, Cole- ^) Duke iJ, Doidge, 2 Ves. 203, man ^'. Seymour, 1 Ves, 2O9. «;ited from Mr. Noel's note ; and (a) Ambl. 203. 2 E i M 424 OF POWERS TO APPOINT TO CHILDREN. as an eldest, but between parent and children, or those who stand in loco parentis (h), but this distinction does not appear to be attended to at the present day. II. We arc now to consider in what manner the fund may be settled on the children. A power to appoint a fund in such 'proportion as a part}"^ shall think fit, implies that he may apportion it out in such manner as he pleases, consequently he may give an interest for life in a particular share to one child, or limit the capital of the same share to another, or even go so far as to limit to a third child upon a contingency, provided he doles out the whole in this various way amoni^ all the children only. The power does not re- quire that he should distribute it hi gross sums, and give each child an absolute interest in that gross sum, for such a power enables the gift of parlicular interests, and the appointment of such hiterests (c ) ; and a general power to apportion lands receives the same construction, there- fore life estates or rent charges may in like manner be given to any of the children (fi^). Where under such a power it is wished to settle the estate on the eldest son, subject to portions for the younger children, it is usual to limit different parts of the estate to each of the younger children during a term, with remainder as to all to the eldest son in fee, and to give him a power of redeeming the estate by paying the portions intended to be provided for the younger children, nearly in the same way as in a common mortgage for a term of years. (5) And see Lord Teynham v^ 640; Bristowy. Warde, 2 Ves. Webb. 2 Ves. juB. 198. jun. 330. (c) Alexander v. Alexander, 2Ves. (d) Thwaites v. Dye, 2 Venn. 80, vide sup. p. 363. But OF POWERS TO appoi?;t to children. 425 But under such a powers a merely reversioiiarj inte- rest cannot be given to any one cliiidj as it is intended for a provision (e). An appointment under the power to a daughter for her separate use independently of her husband^ is so far from being an objection, that it is more strictly carrying into execution the will of the donor (/) ; and this is stiii more clearly authorised where the power is to appoint in such manner as the donee pleases (g). In one case (7?), a father having a power to appoint to his children, gave the interest of a portion to the husband of one of his daughters for life, and after his decease, the capital to the daughter herself. Lord Rosslyn said, that if he had given to the wife for life, and in case the husband should survive, to the hus- band, that would have been a substantial gift; for it was admitted, a gift for life was sufficient. He had done the same thing ; for the husband would in that case, in point of law, have taken during the life of the wife. The insertion of the name of the husband, prior to that of the wife, was doing no more than if he had given to the wife first. The intention, therefore, not being to illude, but to give in effect such estate as a mar- ried woman could take, viz. for the benefit of the hus- band, as long as the coverture should continue, was not illusory. But the Chancellor principally relied upon (s) Alexander v. Alexander, uhi 59 ; and see Pitt v. Jackson, 2 sup; see Dnke of Devonshire v. Bio. C. C. 51 ; Smith v. Lord Lord G. Cavendish, 4 Term Rep. Camelford, 2 Ves. jun. 698; 7^4, n. Crompe T. Barrow, 4. Ves. jun. (/) Alexanders. Alexander, 2Ves. 6S1. 640. (k) Bristow v. Warde, 2 Ves. jun. (g) Maddison v. Andrew, l Ves. 336. the 426 OF POWERS TO APPOINT T.) CHILDREN. the circumstance of the daughter having- been provided for by her father in his lifetime. Now it must be observed^ that in the preceding case Lord Rosslyii did not mean to say, that the excess beyond the wife's life would not be considered void in case her husband survived her (/). And we should be cautious how we admit the doctrine, that the fund may be ap- pointed to the husband evcnduringthe joint lives of him aTid his wife : for he is no object of the power ; and al- though, as it was observed by the court, the husband will take during the life of the wife, where it is given to her, yet he will take in a diilerent right, and subject to equities, to which he would not otherwise be liable. If he take under a direct appointment to himself, he may be considered as the absolute owner of it, whereas, if he merely take in his marital right, his wife would have her equity for a settlement out of it, which would bind his assignees if he should become bankrupt, his creditors claiming under an assignment from him, persons claiming under him without any valuable consideration, and per- liaps even purchasers for a valuable consideration ; and where the pov/cr rides over real estate, and operates under tl.e statute of uses, it seems clear tliat an appointment to the husband would not invest him with the legal estate, lie not being an object designated in the power. But it is probable, that under such an appointment, where the liusbacd can take, he would be held to take in exactly the same manner as he would have done had the fund been appointed to his wife. Thus far as to the quantity of interest which may be given to each child, and we may now consider what con- (i) Sec Ijurlcigh v. Pearson, 1 Ves. 281. ditions OF POWERS TO APPOINT TO CHILDREX. 427 ditions may be imposed by the person executing the power. In Pav/let v. Pawlet (k), Lord Hardwicke took this distinction, that where a father is as only a power of ap- pointment, or distributing portions which are to be rais- ed at all events, he cannot annex any condition to the payment of any share which he appoiuts, otherwise it is where the portion's are not to be raised at a!l without the fatlier's appointment, for there the father may annex a coiidition. This, however, w^as a gratis diction, and I have not met with any case in which the distinction has been acted upon. It would be difficult to establish it upon principle, as in each case the words of thepower must be the guide of the father's appoiutment. A parent having a power to appoint a fund amongst his children, cannot, unless he has a power to annex a condition, restrain a child's share to the payment of a par- ticular debt, for there may be a defence to that debt. Therefore where a father appointed a share to his daugh- ter to pay a debt of her husband's, for which the testa- tor's son was surety. Lord Hardwicke set it aside. He considered it bad, because not given for her benefit, al- though by possibility the discharging her husband's debts might tend thereto. It might be otherwise (/). And of course he cannot annex any condition for his own benefit ( ?«), nor can the property appointed, be exempted by the donee of the power from the debts of the appoin- tee, but it must be left to take the fate of being his pro- (k) i Wils. 224. vide supra, p. 410. (/«) Robarts v. Dixall, 2 Eq. Ca. (/) Burleigh w. Pearson, 1 Ves. Abr. 668.pl. Ip ; App. No. 12. 231 } and see Alexander v. Alex- ander, 2 Ves. 640. pcrty. 428 OF POWERS TO APPOINT TO CHILDREN. pcrtj, and subject to be come at as his creditors shall think fit (n). This section may be closed with the observation, that powers to appoint to nephews, or any other class of per- sons, will be construed by the same rules as are applied to a power to appoint to children. Thus, as under such a power, grandchildren are not the objects, so a power to appoint to nephews cannot be extended to great nephews (o ) ; yet as a settlement made in favour of the grand- children with the assent of fhe child on his marriage, is ■valid, so a like provision may be made in the like case for great nephews. (») Alexander V. Alexander,2 Ves. (o) Falkneru. Butler, Ambl.51i. 640. iECT, [ 429 3 SECTION VL OF THE CONSTRUCTION OF A POWER TO APPOINT TO RELATIONS. X HE observations already made on appointmertts in general, apply equally to a power of appointment in favour of relations as to any other power;, only that it seems to have been thought that a power of appointment to relations may receive a more liberal construction in favour of an exclusive appointment, than a power to ap- point to children (a). We need therefore only enquire first;, what sense is attached to the words relations, kin- dred, &c. which will shew to whom the fund will go under such a bequest in default of appointment ; and 2dly, To whom an appointment may be made under such a power. I. Nothing is better established than that under a be- quest to '' relations/' without saying wliat relations, the fund shall go amongst all such relations as are capable of taking within the statute of distributions ; and this has been adopted as the best measure for setting bounds to such general words, for the relation may be infinite (J)), (a) Spring v. Biles, 1 Term Rep. Green v. Howard, 1 Bro. C. C. 435, note5 and see Mahon ut should be extended to tnose (c) Jones V. Beale, 2 Vern. 381 ; (/) Gower v. Mainwaring, 2 Ves. and Arnold ii. Bedford cited, ib. 8/. {d) Ambl. 640. {g) Devisme v. Mellish, 5 Ves. (e) Whithorne v. Harris, 2 Ves. juo. 529. 627. (A) Anon. 1 P. Wms.327. that OF POWERS TO APPOINT TO RELATIONS. 451 that were of kin^ and ohjccis of cliariiy (i), although he held that this construction could not prevail where the hequest was to the nearest poor relations (k). Sir Thomas Seweil also thought that the epithet poor was to be attended tOj but he would not extend the bequest to relations beyond the limits (I) ; and Lord Redesdaie seems to have made a similar decision in the case of Mahon ij. Savage (in), where he determined that, under a bequest to poor relations, a person becoming rich be- fore the distribution was not entitled. However, it was expressly decided by Lord Camden, that the addition of the epithet /j^'or, or necessitous, or the like, does not vary the case, but the will must be read as if the word denoting poverty was not in it, as there is no distin- guishing between degrees of poverti/ (n), which we may observe is a much better reason than that given for a similar determination in the case in Peer Williams. So where the bequest M^as to the testator's relations " fearing God and walking humbly before him," these words were rejected by Lord Cowper. And in a later case (o), where it was to the relstions "" who were most deserving," the Master of the Rolls said, that he had no rule of judging of the testator's relations, and could (») Attorney-General v. Bnckland, [in) 1 Rep. T. Red:sdale, 111; 1 Ves, 231 ; Amb!. 7, cited, but read the case j and see White {k) G^dinge v. Goodinge, 1 Ves. i. White, 7 Ves. jun. 423 ; but 231 ; and Edge v. Salisbury, note, there the bequest was Ambl. yo. otherwise too remote, and void. (/) Brunsden v. Woolridge, Ambl. (n) Widmore x.. Woodroffe, Ambl, 507 ; see Isaac v. Defriez, ib, G36 ; 1 Bro. C. C 33, n. 595,508; and see Carr T. Eed- (0) Doyley i>. Attorney-General, ford, 2 Cha. Rep. 77 ; and iBro. 4 VIn. Abr, 485, pi. 16. C. C. 33 ; and Gower v. Main- waring, 2 Ves. 8/, 110. not 432 OF POWERS TO APPOINT TO RELATIONS. not enter into spirits, and therefore could not prefer one to another. Upon the whole, then, there appears to be great reason to contend that tlie true rule is, that the epithet poor, uecessitoas, or the like, is merely nu- gatory, although ccvtaiuly there is a considerable weight of authority in favour of the contrary doctrine. The words " most necessitous of my relations," or similar words, must receive the same coiibtruction as yoor relations (p). The signification imposed on the word relations is for the same reason extended to a bequest to '" kin- dred (g);" and '^' next of kin" must likewise receive the same interpretation (?') , A similar construction has been put upon the word " family(^s)," although cer- tainly that word may, according to the context, have different significations in diiferent wills. It may be restrained to mean only the children (J). In one case Lord Alvanley at the Rolls construed it to embrace a husband of the party, although he cautiously referred his decision to the particular case before the court (jii). Lord Thurlow has justly observed, that a bequest to relations is not, under the foregoing construction, ren- dered totally inofficious, for the "ooife cannot claim, the statute providing for her by the name of wife (.i). And as this construction is only made in the absence of evi- dence of the testator's intention, any express ^iKction {p) Widmore -v. WoodrofFe, uli 319; and see Gower ij. Main- sup. waring, 2 Ves. 1 10 } see Doe i;. {q) Carr v. Bedford, 2 Cha. Rep. Joinville, 3 East, 172. yy ; and see 9 Ves. jun. 323. (/) See y Ves. jun. 324. (r) Phillips V. Garth, 3 Bro. C. C. («) Mac Leroth -y. Bacon, 5 Ves. 64. jun. 159- (*) Cruwys v.Colraan, 9 Ves. jun, {x) Sec 1 Bro. C. C. 33, by OF POWERS TO APPOINT TO RELATIONS. 433 by him will be imperative. Therefore, where the be- quest was to the relations, equally to be divided be- tween them. Lord Talbot determined that an unequal distribution could not be directed (;y) ; and he accor- dingly decreed them to take fier capita, although under the statute they would have taken per stirpes, and '' share and share alike " have the same meaninjr as ^' equally to be divided" (z). So where a testator ex- plains the meaning which he attaches to the word, his will must be attended to, as where a testatrix gave a residue to be divided between her relations, that is, the Greenwoods, the Everits, and the Dows. The Everits were not within the degree of relationship limited by the statute, but were decreed to take jointly with the Greenwoods and Dov/s, who were (a). It remains to observe, that parol evidence is inad- missible of the testator's intention not to confine the word relations, kindred, 110 ; sed vide supra, p» 4l0y and qu. the distinction. (e) Harding v. Glyn, Cruwys v. Colman, uli sup. In common cases it is otherwise. Doe v. Lawson, 3 East. 278. As to the claim of representatives of relai* tions, see Bennett v. Honywood* Ambl. 70s ; Mahon v. Savage, 1 Rep. T. Redesdale 111. SECT. t 435 ] SECTION VIL OF POWERS TO JOINTUUE. At has been already sliewii in what instances equity will aid the defective execution of a power to jointure {a), and the estates which may be created under the power have also been pointed out (b). It remains only to state such questions as may be said peculiarly to relate to this power, although certainly the decisions upon them would equally govern any other power of a similar na- ture. As the object oi a power to jointure is to enable the part}' to whom it is given to make a provision for the wife who shall survive him, and as the power, however frequently exercised, can only operate as a charge in one instance, the most liberal construction should be put upon the power in favour of a repeated execution of it. And it has been decided, that under a power, if a man's present wife die and he marry any other wife, then and so often to settle a jointure for such wife dur- ing her life, will enable him to settle^a jointure upon any wife that he may afterwards marry, and so totics quoiies (c). But in a case where the testator directed, that if his son married a gentlewoman with a good fortune, the trustees should settle a rent charge on her for her life, and (a) Vide supra, p. 387. (c) Hervey v. Hervcy, 1 Atk. SQl; (i) Vide supra, ch. 9, sect. 2. Barn. Cha. Rep. 103, dir. 1. Q F :i subject 4:S6 OF Powers to jointure. subject thereto on the issue of that niarriage in stnct settlement ; but if the son died without issue, then over; and the qu«'stion was, how the estate was to be settled ; Lord Hardwicke det( rniined, that an estate tail should be given to the sou after the strict settle- mentj as otherwise the issue of any future marriage could not take, which would defeat the testator's in- tention. He said it was objected, that this inconvenience would not happen here ; for that the trustees might exe- cute this power totics quotics, and that gcntlewoirian was nomcn coUtctrcinn. But th-it, lie said, would not be according io the construction of powers which can be executed but once, unless the words import other- wise, as it evidently was not there, although it might be executed upon a second wife, if not done before. And this decree, he added, answers all the words in the will (r/). This case, it will be observed, can scarce- ly be ranked with those upon the common power of jointuring, for i\\e object of the power was to make a strict settlement of the estate, and not merely to autho- rise the limitation of a jointure. A general power to jointure io a particular amount, without expressing that it shall be clear of taxes, will only enable an appointment of the jointure, subject to natural outgoings, as parochial payments and repairs, &e. (e). Where the jointure is to be of the dear yearly value, it means clear of incumbrances and all ether charges, which by the course and usage of the country in which {d) Allanson v. Clitherow, 1 Ves. Barnard- Cha. Hep. 103 3 Lady 24. Londonderry v. Wnyne, Ambl. (e) Hcivey v. Hcrvey, 1 Atk.56l; 424., the OF POWERS TO JOINTURE. 437 the lands lie, ought to be borne by the tenant, but sub- ject to the land-tax and all other outgoings, which ac- cording to such course of the country ought to be borne by the landlord. In the case in which this was decided. Lord Hardwicke said, that the w ord " clear " should be construed in the power as it would in an agreement between buyer and seller, that is, clear of all outgoings, incunibrances, and extraordinary charges not according to the custom of the country, as tythes, poor rates, church rates, &c. which are natural charges on the tenant. If, he added, in the country where these estates lie, it had been the custom for the landlord to pay those rates, he should have thought this jointure ought to have been subject to them, for they would in such case be only ordinary charges. But the contrary was proved, that it was not the custom of the country (f). And where the custom is for the tenant to pay^ it is not material that in respect of the particular estate the landlord has agreed to pay them, so as to increase the nominal value of the lands by increasing the rent (g). So under the words clear of charge or reprize, the jointure could not be limited clear of land-tax (h). But where the power was to jointure to a stated amount, without any deduction or abatement, for am/ taxes, charges, or impositions, imposed or to he impos- ed, parliamentary or othcr'voisc, but subject to leases in being at the time of such execution made. Lord Hardwicke decreed, that the power authorised a join- (/) Earl of Tyrconnel v. Duke of {h) Ambl. 240 j 2 Ves. 501- j as to Ancaster, Ambl. 237 j 2 Ves. the extent of the word reprize, 500. see Hall . Champernon, Dougl. 62G cited J and see on the general qnestion, Brewster v. Kitchen, I Lord Ilaym. 31/; Bradbury t), Wright, Dougl. 624^ and see Da Costa t. Villar.-al, \ Bro. C. C. 1. 0. (/) Marchioness of Blandford v. Duchess of Marlborough, 2 Atk. 542 j Lady Londonderry v, Wayne, Ambl. 424, et infra, (m) Marchioness of Blandf(>rd i;. Duchessof Marlborough, 2 Atk. 542 ; and see Ambl, 23(), 2 Ves. 502. ?nv OF POWERS TO JOINTURE. 439 any fax varied, that would be a defect in the value of tlie jointure, and the jointress would come into a court of equity to make the defect good against the remainder- man. And where lands of a given value are to be settled, the value is in other respects to betaken as it stood at the time of the execution of the power. This Lord Hardwicke repeatedly determined (A). If by any accident after the execution of the power, there should be an excess, it will be for the benefit of the jointress. By parity of reason, if there should be any deficiency by inundation or casualties, the jointress must acquiesce under it ; to construe it otherwise would make these powers desul- tory (/). But in a subsequent case before Lord North- ington, where the point was not much debated, he held that the value cannot be fixed with justice, hut at the time of the hushand's death. The wife cannot know the value but by inspection of leases, or by information, if the estates are in hand. The rent taken at a particu- lar time, and under a particular letting, ought not to bind the wife. The rent of an estate is very uncertain ; it often varies ; the landlord is often obliged to give boons. Where he has been at an expense of improving, it is common for the tenant, instead of paying a sum of money for the improvements, to pay an increase of rent j and he accordingly decreed the value of the lands to be taken as at the time of the husband's death (???). It is admitted on all hands, that the value is to be (k) Marchioness of Blandford v. (/) See 2 Atk. 544 ; and see Speake Duchessof Marlborough, 2 Atk. t;. Speake, 1 Vern. 217 j Pin- hA'l ; Earl of Tyrconnel v. Duke nell v. Hallett, Ambl. 106. ofAncaster, 2Vcs. 500^ Ambl. (m) Lady Londonderry v. Wayne, 237. Amhl. 424. S F 4 taken 440 OF POWERS TO JOlNTlJnE. taken as it stood at somegixen time, and it requires not to be observed, that it is wholly immaterial whether the courts fix upon the time of the execution of the power, or the time of the husband's death. It is, however, to he lamented, that the rule is not perfectly established. With such conflicting- authorities on the point it can scarcely be considered as settled. Where a man covenants that a jointure is of a given value, the wife has of course a rejuedy to have the de- fect supplied out of her husband's assets (n), but where it is clear that the parties merely intended that he should execute his power, although he agrees to do something beyond it, the court will consider the excess as a mis- take, and Avill not give the wife a compensation irt re- spect of it out of her husband's assets. This was set- tled in the. case of Londonderry ^\ \Vayne (oj, where a man having a power to jointure to the extent of 400/. generally, agreed to convey part of the estates comprised in the power of the ycdvly value of 4C0Z. cltar of taxea and reprizes to his wife, and afterwards executed his power 'Without making the jointure clear of taxes. And LordNoithington decreed, that tlie insertion of the words *' clear of taxes and reprises," was a mistake. The per- sons concerned imagined that the words of the power were to be so understood ; and he was of opinion that \t was not the husband's intention to covenant beyond his power of jointuring. Another ground relied upon wds, that the settlement rectified the mistake, and that the wife who had reserved a great part of her own fortune to her separate use, ai;d was assisted by her own solicitor. in) Frobert v. ^Morgan, i Atk. 440. (o) Anibl. 424 ; and see the con- verse of this case supra, p. 438. a man OF POWERS TO JOINTURE. 441 a man of eminence, was to be considered as a feme sole, ind capable of contracting, although she was under co- verture. But of course this rule can only prevail where it is evident that a mistake was made bi/ all parties, therefore if the power was not known to the wife, and not refer- red to in the articles, it is clear that the wife might come against her husband's assets for any deficiency, although he should execute his power to the fullest extent, and it would be no plea that he himself mistook the construc- tion or extent of his power. It is very customary to give a man a power to join- ture his wife in proportion to the fortune she brings, as 100/. per annum for every 1000/. ; and as the object of such a power is, that the estate may not be incumbered in favour of a woman who brings no fortune into the fa- mily, any underhand execution of it will be set aside : a nominal portion is not sufficient, as if the husband or his friends advance money to make up the sum, and it is af- terwards repaid (p), so although she has a portion, yet if it is settled to her separate use, it will not enable the husband to exercise his power (^), so perhaps if it were settled on the husband for life only, remainder to the wife absolutely. But it is not necessary that the portion should be paid, and absolutely expended by the husband, as that would put it out of his power to make a reasonable settlement of it on his family, and yet eiiabic him to waste and squander it away ; therefore where the portion is settled in a pro- per and reasonable manner for the benefit of the family (p) Fide supra, ch. 7, sect. 2. Ancaster, Ambl. 23/, 3 Ves. (y) Lord Tyiccnnel r. Duke of 500. in 442 OF POWERS TO JOINTURE. in the fair way of contracting-, that is not within t]»e rea- son of the cases on fraud and collusion. Upon these principles Lord Hardwicke deteriniiied, (hat a settle- ment of part ofthc^ life's portion on the husband for lif«% remainder on the younger children of the marriage, and in case there sliould be no such child on the survivor of the husband and wife, Avas not a fraud on the power, al- though the wife survived him, and there was no 30unger child, so that she herself eventually became entitled to her portion as well as her jointure (r). Under a power of this nature, the tenant for life caur not bind the estate in the hands of the remainder- man in respect of any part of his wife's fortunCj not received or- ascertained till after his death, as the estate might otherwise beburdened w ith jointures, to take effect upon remote contingencies, or possibilities of further portions coming in. But if it be agreed, that in consideration of such future jointures, the wife's future property shall belong to the husband, as she cannot have the recom- pence, in consideration whereof it was agreed she should part with it, she w ill be f ntiticd to retain such property herself (s). (r) Lord Tyrconnel v. Duke of (s) Holt i;. Holt, 2 P. Wms. 648 j Ancaster, till sup. J'ide supra, p. 289« SECT, C 443 3 SECTION VIII. OF THE EFFECT OF AN EXCESSIVE EXECUTION. 1 HERE are three modes in which a power may be ex- ceeded : First, In the objects, as where a power to appoint to children or nephews is exercised in favour of grand- children or great nephews. 2dly, In the interests given, as where, under a power of leasing for twenty-one years, a lease is granted for twenty-two years. 3dly, In con- ditions annexed to the gift, as where the fund is given on condition that the appointee pay a particular debt. We have in this chapter already had occasion to treat of what amounts to an excessive execution of a power, and we have now only to consider the effect of the excess. I. And first. Where the 'power is exercised in favour of persons not objects of the power. It hath before been observed, that a will made in execution of a power must receive exactly the same construction as a proper will. Now it is a rule of law, that where a testator has two objects, one particular, and the other general, and the particular one cannot be effected unless at the expense of the general intent, the latter shall be carried into ef- fect at the expense of the former. This is the case where a man gives an estate to one for life, with remain- der to his issue, but the estate is so given, that all the issue cannot take unless through their parent. The par- ticular intent is, that the parent shall only take for life, the general intent is, that all the issue shall take, and in these 444 OF THE EFFECT OF EXCESSIVE EXECUTIONS. these cases, the court will effectuate the general, at the expense of the particular intent, b v giving the parent an estate tail (1 ). This doctrine applirs wifh equal force to similar li- mitations in wills executed under powers. An impor- tant question has arisen in rchilion to it, upon which the Judges have been much divided in opinion. The ques- tion IS, whether, under a power to appoint to childrci). an appointment to a child for life, remainder to his chil- dren, who are incapable of taking, shall give the child himself an estate tail in order to eflect the gen. Acloni> 4 Ves. 357. jun. 771. {k) Legard v. Haworth, 1 East, (m) Q Ves. jun. 4^6, 1 20 ; see Longmere v. Broom, 7 Ves. jun, 124. ^n2 ihei 4(>8 OF LIMITATIONS IN DEFAULT OF APPOINTMENr. thcr and mother, or survivor, should appoint ; in default of appointment, as usual. Another 4000/. was settled in the same way. There were two vounger children, both daughters : upon the marriage of one, the father gave her a portion, which, it M'as declared, should be A satisfaction of her claims under the settlement. The Master of the Rolls held, that, as the daughter had na definite interest, except in default of appointment, she had nothing that she could make the subject of a bar- gain v.ith her father, he could not say that any defi- nite proportion had snnk. If she had had a definite in- terest, it would, he admitted, have sunk, and therefore have been no charge on the estate. He thought then that the case could only be compared to the cases upon the custom of London, where the effect of advancement was merely to remove that child out of the way, and to increase the shares of the others, and not to increase the disposable part of the father's estate. Thi* provi- sion, he added, must have the same effect j removing the daughter, putting her out of the question altogether, as if there never had been such a child. Therefore^ before the power ever arose, there ceased to be objects, for it was impossible the mother, who had survived her husband, could give any thing to the daughter advan- ced. That was expressly stipulated, and she was in- capable of receiving any more than if she was dead. The consequence was, that one of two objects being re- moved, the other must of necessity take the whole. This decision appears to be in direct opposition to a case not adverted to. 1 allude to Pitt and Jackson, or Smith and Lord Camelford (ii), where money was di- («) 3 Bro. C. C. 51 ; 2 Ve$. jun. 6g^. rected or LIMITATIONS IN DEFAULT OF AFPOINTMENT. 469 Tected to be laid out in land, to the use^. after the deaths of the husband and wife, of the children of the mar- riage as the father should appoint, and in default of appointment as the mother should appoint, with remain- der, in default of appointment, to the children in tail. There were two children. The fatlier, considering the money as not laid out in land, bv his will gave rather more than a moiety of it to Ann, one child, and the re- mainder to Mary, the other child. After the will, and upon the marriage of Ann, he advanced her a large portion, and soon afterwards by a codicil revoked the legacy to her. And it was conceded by the counsel for Ann and her husband, and accordingly decreed by Lord Kenyon at the Rolls, that the legacy was well revoked, as the father was become a purchaser of that moiety by the fortune given to Ann upon her marriage. Upon a bill of review being filed to this decree, which involv- ed other points. Lord Rosslyn held that the fund hid been invested in the purchase of an estate, and that the appointment in the will of the fund could not be sup- ported as an appointment of the estate. He considered therefore that the estate must go as in default of ap- pointment : but as to Ann, he thought her father had satisfied all the interest that she could as a creditor set up in opposition to any act in his will, in regard to her provision under the marriage settlement. She was totally in his power by the portion given to her upoii her marriage, when her interest under the appoint- ment was contingent and uncertain, in respect of the possihilitjj of the existence of other children. But he thought that even a well executed appointment could not take from Mary, the other daughter, one moiety, for though the father could entitle himself to all Ann 2u3 could 470 OF LtMITATIONS IN DEFAULT OF APPOINTMENT. could Claim, it coTjId be only to that she could claim ahsoIiiteUj against the other daughter. He could not make an anpointinent in truth beneficial to himself. It is to be lamented that this case, which carries with i^ the joint authority of Lord Kenyon and Lord Rosslyn, was not adverted to in the case of Folkes and M^estern, more especially as the latter case was decided by analogy to cases which douot necessarily bear upon it, and which are themselves not founded in reason; for it was admitted that in those cases one should think, 'prima facie, the eflect of advancement by the father would be to increase that part of the estate of which he had power to dispose. Lord Rosslyn avoided the objection upon which the opinion of the court was grounded in Folkes and "Western, viz. that the interests being conting«*iit and uncertain, there was nothing that could be made the subject of the bar- gain, by holding the advancement to be a purchase of the child's share in default of appointment, or of what she should become entitled to under an appointment The only objection to this construction appears to be, that where the power is given to the wife if she survive, the advancement circumscribes her power ; for as the husband himself cannot appoint a greater portion to the child he has advanced than the child would take in de- fault of appointment, as it would in fact be an appoint- ment to himself, it seems equally to follow, that the wife could not appoint a larger share, lest such a power should open a door to fraud on the other child. But still the •wife's power might well be held to remain, so as to enable her to give the same share to the daughter linadxmnced, as she might have given-to her if the other daughter had not been advanced, and^the father's representatives must be content with the share which may be appointed by th« vife 4 OF LIMITATIONS IN DEFAULT OF APPcftNTMENT. 471 wife to the advanced daughter, or may he permitted to descend to her. The only infringement then on the mo- tlier's power would he this, that in case of disohedience, she could not deprive the unadvanced child of the share provided for it in default of appointment, hut she would have the l>8st possihle hold on the obedience of the child, in the power which would still roniaiu of increasiiig* the portion given in default of appointment. F^eside^, if the curtailment of the power he an objection^ it occurs with the greatest possible force on the rule as established by Folkcs and Western, for there, by the effect of the ad- -vancement, it was holden, that the entire fund was at once given to the unadvanced child, and consequently the mother was deprived of all power over the fund. It would seem, therefore, that till tlie cases come again un- der the review of the court, it would not be safe in practice, to consider the case of Pitt and Jackson as over-ruled. n. It remains only to observe, that where the whole, or even part of the fund is ill appointed, it goes accord- ing to it^ original destination in the event of there being no appointment. And therefore, a person to whom a specific share is well appointed, shall not be excluded from taking any of the unappointed shares (oj. To guard against these decisions where part only of the fund is well appointed, in which case the intention of the person (o) Menzey t. Walker, For. 7'^ i son r. Piggott, 2 Vcs. jun. 351 5 Alexander v. Alexander, 2 Ves. Routledge -v. Dorril, 2 Ves.jun. 6-10 ; Pocklington v. Bayne, 1 357 ; Smith v, Lord Camelford, Bro. C. C. 450j Brislow v. 2 Ves. jun. O98; Attorney Gene- Warde, 2 Ves. jun. 336; Wil- ral v. Ward, 3 Ves. jun. 327. ^ H 4 executing 472 OF LIMITATIONS IN DEFAULT OF APPOINTMENT. executing the power is generally defeated, it is usual to insert an express clause in instruments creating powers of appointment amongst several objects, as children, that no child to whom a share is appointed shall take any share of the unappointed part, until each of the other children shall have received a share equal to that ap- pointed to him. H» CHAP. C 473 ] CHAPTER X, OF POWERS TO LEASE. w ^ ' £ are now come to the last branch of our subject^ of "W'hich much has been necessarily anticipated. It re- mains only to consider, 1, The general rules of construc- tion applicable to this power ; 2, What may be demised under different powers ; 3, For what term ; 4, At what rent J and, 5, Subject to what covenants and conditions. SECTIOl^ I. OF THE GENERAL RULES OF CONSTRUCTION APPLICABLE TO THIS POWER. JL/ord Mansfield has truly observed (a), that of all kinds of powers, the most frequent is that '' to make leases." For the encouragement of farmers to occupy stock and improve the land, it is necessary they should have some permanent interest. Unless the owner of the estate for life was enabled to make a permanent lease, he could not enjoy, to the best advantage, during his own time ; and they who come after must suffer, by the land being untenanted, out of repair, and in a bad condition. The plan of this power is for the mutual advantage of possessor and successor. The execution thereof is check- (fl) iBarr. 120, 121. ed 474 OF THE CONSTRUCTION OF POWERS OF LEASING.' ed with many condition?, to guard the successor, that the annual revenue shall not be diminished, nor those in succession or remainder at all prejudiced in point of remedy^ or other circumstances of full and ample enjoy- ment. Formerly a distinction used to be taken betwen a power to a stranger having a particular estate, and a power reserved by the owner of the fee, which latter it has been said is to receive a more liberal construction than the other. But this doctrine, which has so di- rect a tendency to introduce different decisions on the same words, appears to be completely exploded at the present day, although an opinion has prevailed that a power of leasing is to receive a more strict construc- tion than any other power (h), and that equity cannot relieve against a defect in the execution of it. However, we have already seen that this relief is administered in proper cases (c), and the bocks abound with authorities in favour of the liberal construction of this power. Lord Mansfield, whose authority is generally quoted in favour of the rigid construction ( observed, that (?;/) the nature of the thing shewed that the power could not be meant to extend to letting the ancient manor house at all ; much less to letting it without reserving any rent. In a family settlement of an estate, consisting of some ground always occupied together with the seat, and of lands let to tenants upon rents reserved, the qualification annexed to the power of leasing, that the ancient rent must be reserv- ed, manifestly excludes the mansion-house, and lands about it, never let. No man could intend to authorise a tenant for life to deprive the representative of the fa- mily of the use of the mansion-house. The words, in such a case, shew, that the pov^er is meant to extend only to what lias been usually let. By that means the heir enjoys all. the premises in the settlement, just as they were held and enjoyed by his ancestor, the tenant (/) 8 Mod. 249 i Fort. 332. (m) Dougl. 5/3, 574. (l) This decision is said to have been affirmed in the house of Lords ; but the case is not in Brown ; and, after a diligent search, 1 have not been able to meet with it amongst the printed cases of that period. 2 1 for 482 WHAT MAY BE DEMISED UNDER POWERS OF LEASINCf- for life : He has the occupation of what was always oc- cupied, and the rout of what was alwavs let. The court. Lord Mansfield added, all, therefore, agreed, as to ihe rectitude of the decision in Bag^ot v. Oughton. The nature of the thihg- spoke the intent, as forcibly a» the most direct words could have done. It was demon- stration. In the last case on this subject, a similar decision waf made. A man, by his will, devised his estate in strict settlement, and gave a power to lease ally or any of (he said manors, messuages, lands, tenements, and heredita- ments, foj lives or years, so as Ihe usual rents were re- served. There were some tithes which were never leas- ed before the making of the will, but some parts of the pstate had been usually demised at renls ; and the court considered Lord Mansfield's observations on Bagot and Ougliton, to apply most pointedly to the case before them, as the tithes never had been let, but had always been occupied by the possessor of the estate : and they accordingly determined, that the power did not embrace ihe tythes {a). But, in all these cases, the intention of the parties is to govern, and there are several instances in which parts of the estate never leased have, in favour of the suppos- ed intention, been considered to be withia powers, re- »{uiring the ancient or usual, or present rents to be re- served. The first of these is Cuniber ford's case {b} ; where, under a power to make leases of the premises, or any (g) Pomery v. Partington, 3 Term very considerable authority ou Rep. 665 ; and see accordingly, this htrad, has hitherto unac- Foot 1'. Mciriot, 3 Vin. Abr. 429, countably escaped notice. pi. 9i which case, although a (/;) 2 Ho. Abr. 252, pi. 15. part WlJAT MAY BE DEMISED Ul^DER POWERS OF LEASING. 483 part thereof, "• su that as much rent, or more, were re- served upon each lease ?s was reserved in respect of it within the 2 years immediately preceding," it was re- solved, that lands which liad not been leased within the 2 years at any rent, might be leased by the doues at any rent he pleased ; because it appeared b}' the generaliiy of the words, that it was intended he should have power to iease all the land. The court, therefore, considered the restrictive clause as applicable Oiily to such lands as had heen demised 2 years before. Upon the authority of this case, as it should seem, the case of Waker, or Walker and Wakeman, was decid- ed (c). A power was given in a settlement of an estate to demise the premises, (which consisted of land, a rec- tory, &c. ) so as 5.S. aji acre were reserved ^oreverT/ acre of the land demised. The rectory consisted of tithes only, and no glebe ; and it was adjudged, that the pow- er authorised a demise of the land at 5s. per acre, and of what did not consist of acres, as the rectory, without rent. And, upon the same principle. Lord C. J. Holt delivered an extrajudicial opinion, that under a power 1o lease an estate comprising a manor, so as the leases were not made of the demesne lands, and so as the an- cient rent were reserved, the rents and services might be demised without reiit, because it appeared to be the in- tent of the settlement, that part of the manor might be demised ; and, as the demesne lands were not comprised in the power, then the rents and services must be ; for the whole of the manor consists in demesnes, rents, and services, and he said, if a man hath a power reserved to (c) I Freem. 413 3 2 Lev. 150; 1 Venti-. 294; 3 Keb. 544, 54^, 586, 539, S 19 . 2 I 2 him 481 WHAT MAY EE DEMISED UNDER POWERS OF LEASING. him of making leases of tico things, and a qualification is annexed to the P'jiir.r ijohich cannot extend to one of these things, he may make a lease of that thing without any regard to the qnalif cation (1 ). And he relied up- on Cumberford's and Waker's cases as authorities for these positions ; but Turton and Eyre J. thought, thai as there were other lands mentioned in the power, they satisfied the words of it {d). In the case of Goodtitle v. Fiuiucan {e), the power in a settlement of manors, fishery, &c. was to demise all or any of the xnimov's, fiaheries (f), messuages, lands, tene- ments, and hereditaments therein before-mentioned, so as there were reserved so much rent, or more than then was paid for the same. The manors, or manorial rights, had not been let before. The fishery had been let be- fore, but was not at the time of the settlement ; since that time, it had been again let at 15s, a year. A lease was made under the power of the manors and fishery: and some lands, reserving the right of shooting and fish- ing, at a rent exceeding what they had ever produced before, about 30L ; and the court held the lease to be \alid. Lord Mansfield, in delivering the judgment of the court, said, that the power was express to demise (rf) Winter u. Loveday, Com. 37 ; Clayt. 99; Campbell v. Leach, 1 Freem. 507; I Lord Raym. Ambl. 740. 267 5 2 Salk. 537 ; Carth.427 ; (e) Dougl. 505 ; see 1 Burr. \QA, and see Campion -v. Thorpe, (/) See 3 Term Rep, 67 1, n. (1) Lord C. J. De Grey quoted this rule in Campbell v. Leach, The passage in Ambler, p. 748, should be read thus : Where there is a power of leasing (with a description) applicable to some parts of the estates, and not to all of them, those to wliich it is (not) applicable, maybe leased without such description. Vide supra, p. 29O, n. the WHAT MAY BEDEMISED UNDER POWERS OF LEASING. 485 the manors and fisheries. They were particular!}' men- tioned in the settlement, and the power went to the whole. They paid under this lease as great a yearly rent as at the time of the settlement, for they paid no- thing then. The words, therefore, were complied with, and the objection could only stand upon the intent. But the court thought no such intent appeared. The manors were nominal, of no value, no object of yearly income. The fishery only worth 15s. a year. They were conve- nient to the lessee livmg on the land, and of no use to the remainder-man. The right of shooting and fishing was reserved to him. For his own part, he thought the in- tent was to give leave to demise all, reserving as much rent in the whole as had been paid before, and in fact, 30/. more had been reserved (g). These cases must not be dismissed without obser- vation. The decision in Cumberford's case has been referred to the ita quod, or so that in the power (7i), and Walter's case was distinguished by the court from Mountjov's, on the ground, that there the proviso M'as disabling, that no lease should be made but with ancient rent, whereas in the case before them the power was general and enabling, and the latter clause restric- tive (i). Bat these subtleties (1) are now happily got {g) And see 3 Term ; Rep. Q77. (i) See 3 Keb. 597. (A) See Fort. 332. (1) In treating a dislinction between ^ disabling and an enabling power as a subtlety, I allude only to those cases where it turns merely on the form of the words creating the power, for certainly there is a wide difference between a power disabling a tenant in fee, from making any lease, but for a certain time, and a power enabling a tenant for life, to lease for the same period j vide infra. 2 I 3 rid 486 WHAT MAY BE DEMISED UNDER POWERS OF LEASING. rid of (A): the intention of the parties, to be fairlj collected from the whole instrument, is the only g'uide to the true construction of Ihe power. Upon this broad ground it was, that the case of Goodtitlc and Funucan was decided. If then in these cases, we are to advert to intention, (he value of the property must have considerable weie;ht : for it is decided, that if the lands, tithes, &c. to which the restriction does not ftpply, aix within the power, they may be leased for the term prescribed without rent. The mischieAous consequences of this construction are evident. The intention of a settlement may be entirely defeated by it. The donee may lease lands, not letten before, without rent, taking a large fine at the expense of the remainder- man, -Nvhercas, in res;ard to those before letten, he is compellable to reserve the ancient rent. Hov,- incon- gruous and absurd is this rule, and how little calculated to efiectuatc the intention of the parties! Walter's case appears to have been decided solely on the authority of Cumberford'scasc, and Lord Chief Justice Hale, said that if it had been res inicgra, perhaps he should have been of another opinion {I), and Mr. Justice Barclay, seems to have entertained the same sentiments (in) and in tlic great case of Foot i;. Marriot, Lord Chancellor King adopted Hale's opinion of Cumberford's ease, and added t]!at if the case were law it should not be carried one step further (77). In all the modern cases, the judges without expressly over-rulisig Cumherrord's case, have clearly evaded the sfirii of the decision^ If the cases of Bagot and Oughton, Foot and Marriot, and Pomery ik) See 3 Term Rep. C//. {m) 3 Ktb. ^y6. (/} See 2 Lev. 151. [n) 3 Vin. Abr, 429, pi 9. WHAT MAY BE DEMISED UNDER POWERS OF LEASING. 487 and Partington are well decided, it is still open to con- tend, that the property to which the restrictive clause cannot apply, shall, if valuable, be rather held not to be within the power, than that the first tenant for life shall be authorised, contrary to the intention of the donor, to decrease the rental of the estate for his own particular emolument. The rule laid down by Holt that '^ where a man hath power reserved to him of making leases of two things, and a qualification is an- nexed to the power, which cannot extend to one of these, he may make a lease of that thing without any regard to the qualification, may be a sound rule, but the question in these cases, is, whether the qualification does not form a part of the sentence, and virtually exclude that subject to which \i is admitted it cannot extend. There are however, cases to which the rule ought to be applied. As if in a power to lease estates, including mines opened and unopened, a clear intention appears to embrace all the mines, but a clause is added that no lessee shall be made dispunishable of waste, there to eft'ectuate the general intention of the power, the latter clause should not be deemed applicable to the unopened mines(o), so if a similar clause should be inserted in a power to grant leases at rack rent and building leases, it should be construed to extend io the leases at rack rent only, as no improvements by building could be made, unless old buildings could be pulled down, trees felled, &c. indeed, it even seems that such a clause in a power to grant building leases only, would (o) See and consider Campbell v. to work open mines, Co. Litt. Leach, Ambl. 740, and keep in 54, b. remembrance that it is not waste 2 1 4 not 488 WHAT MAY BE DEMISED UNDER POWERS OF LEASING. not restrain the liberty of pulling down the old buildings, ill order to erect new ones (p). Where leases are granted under powers to lease lands usually demised, it must be shewn, by old leases or other satisfactory evidence, that the lands have iisu- ally been demised, or they cannot be supported {q). In the case of Campbell ?;. Leach (r) it was deter- mined that under a power to lease the '^ messuages, lands, tenements and hereditaments," in the deed (ex- cept the capital messaag;e and warrtn) at the best rent, opened mines might be leased as they were in lease at the time of the settlement, and t'.velve years then to come of the term, and must be linderstood to have been settled for the benefit of all claiming under it, and the words were sufficient to carry the mines. The usual power of leasing for lives authorises a lease during co-existing lives only (s). And where a power is limited to lease for any given number of lives, such parts of the estate as are demised for ani/ such time, it does not include lands which were then demised for lives, not concurrently but succesively, and by way of settlement (t ) . In the case of Winter v. Loveday, it was determined by Ilolt Chief Justice, Turton and Eyre, against Roke- by, thcit an exception in a power of leasing, of the de^ mesnes of a manor, included the copyholds of the manor. Rokeby thought that the e .eeption extended only to lands in the occupation of the donor. He, however, held that, if the demesne lands had not been excepted Cp) Fide infra. (s) Vide infra Sect. 3, d»v. 4. (^)Sfce Earl of Cardigan v. Monta- {t) Doe v. Halcombe, 7 Terra Rep. gue, App. No. 14.(6), J\'i, {r) Ambl. 740. WHAT MAY BE DEMISED UNDER POWERS OF LEASING. 489 by express words, yet the power of leasing would not have extended to them, for if it did, it would destroy the tenure, because copyhold lands once leased are for ever enfranchised, and therefore, it shall never be pre- sumed that the tenure was intended to be destroyed without express words of the parties for that purpose (w). This is an important general rule of construction ap- j^ppUcable to every power. (u) Carth. 428, et sup. SECT, C 490 ] SECIION III. OF THE TERM M'HICH MAY BE CHANTED. ^OME of the cases on this head have been uiuivoidablj treated of in a former part of the work (a). We maj here inquire, 1. in what cases leases in possession only, can be granted ; 2. in what instances leases in reversion may be granted ; 3. whether concurrent interests can be granted under the usual power of leasing; and 4. for what lives the estate may be granted, under powers to lease for lives. I. And first, in all well drawn powers of leasing, where it is intended that a lease in reversion may be granted, it is expressly declared so ; and if a reversion- ary lease is not to be granted, it is expressly declared that the lease shall be made to take effect in possession, and not in reversion, or by way of future interest. But it has been determined, that even a general power to lease for a certain number of years, without expressing that the leases shall be in possession, and not in rever- sion, authorises leases in possession only, and not in re- version or infuturo, for if by the power, a reversionary lease might be made, then a lease for the years autho- rised might be made in possession, and afterwards in- finite leases for the same term in reversion, which would be contrary to the meaning of the power, and would render idle and vain the express limitation in the power of the number of years for v.hich the lease might be granted (&). And (rt) Vide cliap. 9, sec. 2. Cro. Eliz. 5; S. C. cited 6 Rep. {J:} Countess of Sugtex v. Wroth, 33 a, nom. Leaper v. Wroth; Shecomb OF THE TERM WHICH MAY BE GRANTED, &C. 491 And it seems to liave been settled after considerable doubt, that where the power is expressly to lease mpos- session, a lease in reversion cannot be granted, although the estate is in lease at the time of the creation of the power, so that unless a present lease can be granted of the reversion, the power is in suspense till the determi- nation of the first lease (c). II. But in the foregoing case it was laid down by Windha?^ a^jd Twisden, that if the power had been to lease generally witliout saying in possession, a lease might have been made to commence at the end of the lease then in esse And the same point was expressly decided in the Marauis of Northampton's case by Man- woode and Dyer against Mounson, but by the marginal note in Dyer, Lord Chief Justice Treby ( 11), appears to have agreed with Mounson (f/) ; and in the case of Baynes Shecomb ij. Hawkins, Cro. Jac. quis of Antrim v. Duke of Buck- 318, 1 Brownl.l481,Yelv. 2'22, ingham, 1 Cha. Ca. 17, 1 Sid. nom, Slocomb v. Hawkins (i). lOl. S. P. ace. and see and con- (r) Opyu. Thoniasius, 1 Lev. 267, sider Sands v. Ledger, 2 Lord Raym. 132, 1 Keb. 7/8, QlOj Raym. 792, and 1 Sid. 26o, where it wis ad- (d) Dy. 357. a, 2 Ro. Abr. 26] ,pl. mitted that the lease was void ; 8, 1 Leo- 36 cited j loosely re- but see 4 Mod 6, and see Mar- reported in 3 Leo. 71 {111). (1> As this case is reported in Cro. Jac. the first lease w-as granted le- fore the power ivas created, and Brownlow's report seems the same way : but if so, the decision was perhaps doubtful, vide infra. Yelverton states it otherwise. At any rate, the principle in the text was clearly admitted- In Raym. 13S, it \i %?L\d arguendo that the recoid of the case does not warrant Croke's report. (II) The mar^^inal notes in Dyer are understood to have been his pro- duction. (III) Note---The report in Leonard does not state both the leases to have been granted under the power 5 and Dyer, before whom the cause VIS 492 OF THE TERM WHICH MAY BE GRANTED Baynes v. Belson {e), the court delivered an extrajudi- cial opinion that such a lease was void, although cer- tainly they appear to have relied on the cases where the land was in possession as authorities in point (1). But in the modern case of Coventry and Coventry (/), leases in reversion under a general power to demise an estate in lease at the time of the settlement, were sustain- ed after many arguments. The gronnd of the decision is not, however, stated, and the case, perhaps, turned on the particular penniiig of the power, which was with a '•' so as there be not in any part of the premises so leased at any one time any more or greater estate or estates than for twenty-one years or three lives, or for any num- ber of years determinable on three lives," and upon the old leases and the reversionary lease there were not at any one time upon any of the lands demised more «r greater estates than estates for years determinable upoi> three lives : the court therefore might well have relied on this clause as evidence of the intention that leases in reversion might be granted, so as with the leases in possession they did not exceed^ the limits pointed out. It seems far from clear that at the present day a lease in reversion would be supported undei' a general power, al- (e) Raym. 247 j and see Berry v. Riche, iw/ra. (/) 1 Com. 312. was tried, and whose accuracy may be relied on, states expressly that the first lease wns granted before the creation of the power. Indeed the point cannot be doubted, as Dyer gives the date of the first lease which was three years previous to the creation of the power. (I) It is far from clear upon the face of the report, that any lease was in existence at the titr.e of the settlement, and from the cases relied on, it should seem that the fact was not so. though UNDER POTTERS OF LEASING. 493 thoufrli the estate was in lease at the time of the settle- o ment, unless there were some direct evidence as in Co- ventry V. Coventry of the intention of the parlies. Such a construction, it must be admitted, would, in most cases, ill accord with the intention of the parties (i). It might upon the same principle perhaps be contended that a remainder-man mav, under a general pov/er, graiit a re- versionary lease of an estate, leased by a prior tenant for life, under the same settlement. A power to grant a lease may, by the particular wording of it, authorise a lease in reversion, although not so expressly stated, and the estate is not in lease at the time of the creation of the power : Thus where the power v/as to lease for any number of years, not exceeding ninetjwiine jcsirs, from the time of making (1) I should do wrong to pass over the pruicip'e which Mr. Powell has extracted from the case of Fox v. Prickwood, 2 Bulstr. 2l6, I Ro. 12, Cro. Jac. 349, 2 Ro, Abr. 260, pi. 5, as it would if established, be a very important one. It is this. " If," says Mr. P. *' there be a power to make leases in possession expressly, whioh attaches upon an estate part of which is in possession, and other part thereof in reversion at the creation of the power ; the donee of the power may immediately make leases in possession of the estate in reversion, as well as of that in possession." Pow. Powers, 425, 426. No such principle however was established bv that case. The esta' e was limited to a stranger for a valuable consideration for fifteen years, remainder to the owner for life, with a power to make leases in possession. And the only question was, whether he could make leases till his own estate for life, came into possession by the expiration of the fifteen years, and it was bolden that he might. The other question could not arise, for although the estate demised, was in lease at the time of the settlement, yet it is express'y stated that, that lease had expired before the new one was granted, and the court considered it clear that a lease iu reversion could not be granted. the 494 OF THE TERM WHICH MAY BE GRANTED the demise, it was adjudged that the latter words did not refer to the comnientement of the lease, but only- restrained the making of a lease for more than ninety- nine years from the making, and that a lease might be made for sixty years to commence twenty years after- wards, for it would not exceed ninety-nine years from the time of making the demise, the true construction of the power was, that he might lease for ninety-nine years, from the time of making the lease, or for any other term not exceeding ninetj-nine years (g). Although a power enable a man to make leases in reversion, as well as in possession, yet he cannot make a lease in possession, and another lease in reversion of the same land, but his power to make leases in rever- sion, shall be confined to such land as was not then in possession (^). And the very same expression, lease in reversion may have a difierent signification in the same conveyance, being applied to a lease for life, it shall be intended of a concurrent lease, or a lease of the reversion, viz. a lease of that hrad w hich is at the same time imder a demise, and then it is not to commence after the vad of the demise, but hath a present commencement, aiid is concurrent with the prior demise, and this construction is imperiously called for, as a lease for life cannot be made to commence at a future day (i), but being ap- plied to a lease for years, it shall be intended of a lea&s which shall take its elfect after the expiration or de- termination of a lease in being {k). (g) Karcourt v. Pole, 1 And. 2/3. (i) Whitlock's case, 8 Rep. 6g, l>. {h) Winter v. Loveday, 1 Com, 36, {k) 1 Com. 3Q b. Per Holt. Per Holt, Thus UNDER POWERS OF LEASING. 495 Thus we have seen in what cases^ leases in possession and leases in reversion may be granted. It is still ne- cessary to ascertain what the law understands by leases in possession^ and what by a lease in reversion. Lord C. J. Holt has thus explained the nature of a lease in reversion. In the most ample sense, that is said to be a lease in reversion^ which hath its commencement at a future day, and then it is opposed to a lease in pos- session, for every lease that is not a lease in possession in this sense, is said to be a lease in reversion (A) ; but the usual construction of the term lease in reversion in powers, is a lease to commence after the end of a pre- sent interest in being (Z), and not a lease to commence at a future day. In common parlance, a lease is said to be infuturo when it is granted at a day to come, and is not depen- dent on a subsisting prior lease ; and it is termed a lease in reversion when it is to take effect after a prior sub gi sting interest. A'^ here a lease ought to be granted in possession, a lease made to commence only a day after the date of the •deed creating it, is as fatal a variance from the power iis if made to take effect at the expiration of 100 years from the time. It has long been settled, that a lease to hold ^' from henceforth," " from the making," " from the time of the delivery of the indentures," or " from the sealing and delivery of the deed," is a lease in possession, and not infuturo (7?i), and it shall begin from tlic delivery, (k) 1 Com. 38; and see Cart. H, (to) Clayton's case, 5 Rep. 1 } Hig- 15 J 2 East, 383. ham v. CoJe, 2 ilo. xVbr. 520, (i) 1 Co:n.38. pi. l. whcr« 496 OF THE TERN IVUICH MAY ftE GRANTEt) where no time is mentioned (ii) ; and "^ from the date " has in these cases the same meaning (o), although cer- tainly this opinion has not always prevailed (p). And nice as the distinction may seem^ the words '' from the day of the date/' were^ by a series of decisions prior to the famous case of Pugh and the Duke of Leeds^ holden to be exclusive, and to render the lease a lease infuturo, and consequently void. Amongst these deci- sions several modern ones may be ranked, which under- went great consideration (5), and even two cases before the very same Judges who decided Pugh and the Duke of Leeds {r), , In that case, however, after a full review of all the authorities which Lord Mansfield, in delivering the judgment of the court, declared to be so many con- tradictions backwards and forwards, it was decided, that " from the day of the date " was the same thing as '' from the date,'' and consequently that a lease io hold '' from the day of the date," Mas a valid lease under a power to lease in possession only. The princi- pal ground of the decision was, that " from " might mean either inclusive or exclusive : that the parties ne- cessarily understood and used it in that sense, which made their deed effectual: that courts of justice are to construe the words of parties so as to e0'ectuate their (n) Co. Litt- 46, b. (q) Dcnn t. Fearnside, 1 Wlls.l/S; (0) Osborn v. Rider, Cro. Jac, 135; Attorney General v. Countess of Hatler v. Ashe, 3 Lev. 438 ; 1 Portland, Cowp 723, cited-, a.id Lord Raym. 8-1. see Freeman -u. West, 2 Wils. (p) See Clayton's case, 5 Rep. 1 ; l65. Bacon v. Waller, l Ro. 387 ; 2 (t) HotLy v. Scot, Lpfft, 3lG ; Doe Ro. Abr. 520, pi. 4 ; and sec Co. v. Watson, Cowp. 1 89. Litt. 46, b. decdi i UNDER POTHERS OF LEASING. 497 deeds and not to destroy tliem, more especially where the words themselves abstractedly raaj^ admit of either meaning fsj. In a subsequent ease before Lord Keu- yon^ upon the word " froai " iii an indictment, in whicli the case of Piigh v. Dake of Lje.b was cited, he said^ that it was not applicable to the ruse before him, and that it must be remembered^, that thongh he believed that case w^as rightly decided, tl'.e contrary determina- tion had before been made by ail the Judges. Mr* Justice Ashurst observed, that the caseof Puirli r. Duke of Leeds was properly decided, but that it turned on the construction of a contract between two persons w^here their intention was to be considered {t). Mr. Powell, in an elaborate argumentj which occu- pies upwards of 100 pages, has shewn very successfully that this decision was in direct opposition to the decided cases {u) -, but however we may dread the precedent which this case sets for similar innovations^, yet, as th'j mischief to be appre'licnded froai the removal of land marks, must in this instance have already been sustain- ed, it cannot be expected, nor is it to be hoped, that a decision which has so ranch good sense for its basis will ever be over-ruled. No one, however, w^ould be so rash as to grant a lease to hold ** from the day of the date," under a power to grant leases in possessix)n ; on the con- trary, conveyancers cx' ahundanti cauteld, always make the habendum '' from the day next before the day of the date of the deed." 0) Pugh x».Duke of Leeds, Cowp. (t) Rex v. Inhabitants of Gamlin- 71^. gay, 3 Term Rep. 513. (u) ?QW,Vo\v 433---540: O It 498 OF THE TERM WHICH MAY BE GRANTl D It has sometimes happened tliat a lease, tlioiigh dated back, and on i;g as it inay^ taking eifect in possession after the de- termination of the first lease (/r). One of the arguments we have seen in favour of the lease, in Goodtitle ^\ Funucan was, that it was good as a concurrent lease, and for this the case of Read and Nashe was cited. Lord Mansfield in giving judgment said, that the reason given was a strong one, viz. that the inheritance was not cliarged in the whole with more than 21 years. No authority he said, was cited against this case, nor any answer given to the reasoning in it. The words of 13 Eliz. c. 10 ( I) he added as strongly (k) Hard, 412. (1) Note; the question in Fox and Collyer arose on the 1 Eliz. c. 19, am! Jict on t!,. i.« rJiz. c. 10. requires UNDER POWERS OF LEASING. 503 requires leases to be in possession, and not in reversion, as those in this or any of the common powers to tenants for life, yet in the case of Fox v CoUjer, all the Judges held that an immediate lease for 21 years of premises, on which there was a subsisting lease for four years, was g-ood. The 18 of Eliz. c. 11, restrained the right to make such concurrent leases to cases where the old lease had not more than 3 years to run (2). In a very recent case, decided by Grose, Lawrence, and Lc Blanc J. an vbiter opinion was delivered, that according to the case of Goodtitle and Funucan, a concurrent lease might be granted under a power to lease in possession. This opinion was not pronounced on two leases under the power, but in a case where the Hrst tenancy was not crea- ted by force of the power, and consequently was not binding on the remainder-man. Thus stand the authorities in favour of concurrent leases : as the doctrine owes its foundation to the case of Fox and Collier, it may be proper to open the oiher side of the question, with some i)bservations on that case. At the comiiiiou law, a Bishop could not make any lease without the confirmatioii of his Dean' and Chapter ; the stat. of 32 li. 8. c. 28, enabled bishops, of their own au- thority, to make leases for 21 y^ars, under certain res- trictions, but this did not prevent them from granting the possessions of their sees for any term, with proper confirmation. Elizabeth, upon her accession to the throne, after the sanguinary reiirn of Mary, found the prii;cipalities of the church filled by Roman Catholics. These she resolved to remove, and justly apprehending (2) Note; this act did notaftect the I Eliz. c. IQ. 2 1, i that 501' OF THE TEKM WHICH MAY BE GRANTED that they would charge tlie bishopricks in their own fa-* vour, caused the stat. of ] Eliz. c. \9, to be passed, whereby it v/as enacted, that any estate made by bishops cf hereditamciils, parcel of their bishopricks, " other tiian for the term of 2i years, or 3 lives from such time as it should begin, and whereupon the old rent should be reserved, at one time than one, tliey are all void but the first; be-^ cause it is against the intention of the parties, though it be not against the words (w). By this time it will be admitted, that Fox and Col- Iyer is not a case to rule others by analogy merely, and if any doubt arises on the doctrine in that ease, as applied to the statute of Elizabeth, how much more forcibly must it arise when applied to leases under private powers. In that case, until the statute, the Bishop pro tempore might have aliened the land absolutely, with the proper confirmation, and still the concurrent lease is not valid without such confirmation. This therefore is a case in which the Judges may have been temptrd to restrain a severe disabling statute, and they njay have considered that the successor was only bound by a term of twenty-one years at mosti upon which he was entitled to the old rent, whereas before the statute he miglit have succeeded to the land incumbered with a lease for two thousand years at a pepper corn rent. But how widely different is the usual power of leasing. It is an enabling power to a man who could not, of his own au- thority, make a lease binding on the estate for a single month, and it requires that the lease should take efiect in possession, which clearly means not merely a term to commence in presenti, but also a term to commsi ce i:i (n) Shep. Touch, 269. If this continued of the opinion iie ex- book was, as is generally sup- pressed in Evans 1'. Ascougb, posed, written by Doddridge, vide supra. the above passage shews thai he interest ; UNDER POWERS OF LEASING. 5o7 interest : the object of such a power is rather the benefit of the estate than of the particular tenant for life in pos- session, vvliereas in cases not expressly prohibitedj the legislature intended to leave bishops in possession of their former rights. In the stat. of Eliz. the lease is not re- t][uired to take effect in possession, and Whitlock, who we have seen, thou5!:ht Fox and Collyer well decided, expressly distinguished it from a particular power of leasing*. The argument of Mr. Justice Yates in Wil- son V. Sewell (o), is still more to our purpose, he said that a lease in being is only that in possession, a concurrent lease i.^ not a lease in esse. It operates only by estoppel. It passes no interest during the for- jner lease. The iS Eliz. meant to restrain leases in re- version, therefore by lease " in being/' the legislature meant a lease in possessiwi. The advantage to be derived from the two rents which was relied on in Fox and Collyer's case is no other than a fruitful iield of litigation. If the second lessee should enter and be ousted, as of course he would be, the rent on the second lease would, it should seem, be suspend- ed. Or it may be thought that, as at this day leases are made by deed, the second lease would take effect by estoppel as a lease in possession, and attornement being now unnecessary, would carry with it the right to the rent reserved by the first lease, and then the remainder- man's remedy for his rent would be more complicated and less effectual than it would have been under a single lease. And if it should be established that a concurrent lease may be granted, it will of necessity follow^ that any in- definite number of concurrent leases may be granted of (») 1 Blackst. 120, the 50S OF THE TERM WHICH MAY EE GRANTED the snme land, a doctrine froilglit with too much inconve- nience to be established on hght grounds. It should seem, tliei), I . That whatever may he the authority of the case of Fox and Collyer, it cannot be considered as ruling: private powers ; and 2. That a concurrent lease cannot be g'rauted within the true spirit and meaning of such powers. As to the authorities in favour of the contrary doctrine, we may first ease the point of Berry and Riche cited by Serjeant Newdigatc (p) ; for it is far from clear that that was not the case of a lease granted of an estate which was in lease at the time of the settlement ; and the Serjeant refers to Moore's Rep. p. 618, which turns upon a very different question. The case of Read and Nashe, which Lord Mansfield relied upon as an authori- ty, was never decided. It was merely the argument of Cooke at the bar, who produced no other authority than Fox and Collyer, and in Read and Nashe also the power was so particularly penned, that Cook occupied a conside- rable time to shew that a power was actually given. Lord Mansfield's observations in Goodtitle v. Funucan, appear to have been made without much previous atten- tion to this point, probably from the circumstance that this was not the true ground of the decision (?') , but was merely thrown in as an additional argument. The observation in Doe v. Calvert was a mere dictum , and rests solely for its authority on Lord Mansfield. Be- sides both these opinions may perhaps be supported on the third ground of Goodtitle v. Funucan, viz. that the first lease was not bihding on the remainder-man, a case very distinguishable from one where both the leases are granted under the power. The point then is not sur- {p) Vidi supra. (r) flt/e jH/)rfl, p, 502, 503> and the notes. rounded^. UNDER POWERS OF LEASINCf, 509 rounded by mucli authority ; and there seems reason to suppose^ that if it should ever be argued on its true principles, the decision ^Yill be, that a concurrent lease cannot be granted. To guard against a contrary deter- mination, it might be advisable in powers of leasir.g to expressly declare, that a concurrent lease shall not be granted. At any rate, where the best rent is required to be reserved, the point of enquiry, it is apprehended would be the expiration of the first lease, and not the time at which the second is granted, and this would in some measure defeat the fraud upon the power which concurrent leases are mostly intended to effectuate. But although £^ concurrent lease cannot be made, yet a surrender may be taken of the old lease, and a new one granted. If the new lease be made to the old tenant, an express surrender is of course unnecessary. It has in- deed been doubted in practice, whether a new lease grant- ed upon the surrender of the old one at an increased rent is valid. The increased rent, it has been argued, is equi- valent to taking a finc^it the expence of the remainder- man ; for if the old lease had been permitted to run out, a larger rent might have been obtained. There is not, however, any weight in this argument (5), IV. Fourthl}^ As io leases for lives, A power to grant leases for two or more lives, implies an authority io grant them during the life of the survivor, although the power is silent in (hat respect (f). And it has been de- cided upon the 13 Eliz. c. lQ,that a lease to one for three lives, and to three for their three lives, is the same thing within the intent of the statute, which restrains leases (*)SeeWilscm;.Sewell, 1 Bhckst. (0 Alsop v. Pine, 3 Keb. 44, pi. 617. Iff. oihcf 510 OF THE TERM WHICH MAY BE GRANTED, (!Cc. Other than for three lives (?/). The same construction would extend tc a private power of leasing, but the lease must be made for lives in esse (.t), and the lives must be concurrent ; the candles, as the phrase is, must all be burning at the same time, although the power is io do mise " for one, two, or three live&," which seems to im- port succession (i/). We have in a former place seen in what instances the Irase must be for the lives directly, and where it may br for a term of years determinable on the lives (zj. (?/) Baugh V. Haynes, Cro. Jac. 76. (y) Doe v. HalcombR, 7 Term Rcf^. (x) Raym. 2G3. 713. {%) Supra, ch. 9, s. 2. SE€T» [ 511 ] SECTION IV. OF THE RENT TO BE RESERVED. X HE questions in regard lo the rent arise either upon the quantum, or the mode of reservation. Where a set- tled est?ite has been usually let on lives, the common power of leasing fs upon fines, which as the lives or leases drop are considered among the annual profits {a). This is generally the case in Ireland, but it prevails only in a few counties in England. The power of leasing commonly introduced into settlements of estates in Eng- land;, requires the best rent to be reserved, and expressly prohibits the taking of a fine. Whether the best rent is reserved, is a point to be decided by a jurj^ (I ). It is clear, that under a power to lease at rack-rent, improve- ments by th3 tenant, however valuable, M'ill not autho- rise a lease at an undervalue (&), and if a fine be taken, the lease cannot be supported, not only because it is against the intent of the power, express or implied, but because it is evident, that however considerable the rent, it might have been increased if Ihe fine had not been taken. In a case before Lord Redesdale, the tenant covenanted to lay out 200Z. in imiwovcments ; and it was argued that this was equivalent to a fine, but his Lordship said, that he thou2:ht this would not avoid the contract if the rent (a) See 1 Burr. 121. East S6 ; and see Doew. Lloyd, (/-•) Roe ?;. Aichbp. of York, 6 3 Esp. Rep. 78. (1) As to the kind of evidence admissible in these cases, see Roe v. Rawlings, 7 East 279. werc^ 512 OF THE RENT TO BE RESERVED were notwithstanding- the best that could be got. Sucli a covenant^ he added^ is not necessarily a fraud. It maj be n^^ade with a fraudulent intent, and when it is so made it will avoid the lease ; if it were colourable, and mere- ly for the purpose of putting money into the pocket of the tenant for life, it would avoid the lease ; or if it were not originally intended as a fraud, but were after- wards used fraudulently (as for example, a covenant to repair, and a sum of money under colour of damages for breach cf that covenant recovered by the tenant for life) a court of equity would at least take care that the da- mages should be laid out on the lands (c). We should however be cautious in the application of the principle of this decision to cases in practice. It should seem, that although the rent reserved be the full value of the land, yet if satisfactory evidence could be pro- duced to a jury that a tenant was willing to give an ad- ditional rent in lieu of the money agreed to be laid out in improvements, the lea,se could not be suppoirted. It would not be the best rent that could have been obtained. In these cases it is not essential that there should be fraud and collusion between the lessee and tenant for life. The simple question is. Is the rent the best rent ? If it be not, the lease must fall to the ground, however fair the transaction {d). And where, from the quantify and nature of the pro- | perty demised, it is impossible to ascertain whether n, the rent reserved is the best rent, the execution of the ' ': power cannot be sustained^ as where a donee of a power to lease at rack rent, leased an honour and sixteen ma- (c) Shannon v. Bradstreet, 1 Rep. ((/) See Wright v. Smith, 5 Esp.. T. Redesdaie, 52; and see Camp- Rep. 203. l^e!] V. Leach, AmbJ. '^■\0. nors. tJNDER POWERS OF LEASING. 613 «ois, and other estates, with a park and deer therein, by one lease at 600/. a year, the lease was deemed inva- lid by reason of the general, extensive, casual, and un- certain natures and values of the greater part at least of the premises, and the great difficulty, if not utter impos- sibility, arising from thence of forming any judgment, whether the rent thereby reserved was the best rent that could have been obtained (e). Of course, in a power to grant building leases, the term best rent must, although not expressed, be under- stood to be the best rent which can be obtained with re- ference to the gross sum to be laid out by the tenant in building or improvements. We have already seen, that the surrender of an exist- ing lease, and the grant of a new one at an increased rent is not equivalent to taking a fine (.f ). Formerly these powers required the ancient or usual rent to be reserved, but at the present day this practice is very properly exploded. Where such a terra is intro- duced, the better opinion is, that as a general rule, the rent reserved at the time of the creation of the power, where a lease was then in being, or last before it, where no lease was then in being, is the rent to which the power must be taken to refer (g). But it is no ob- jection that more than the ancient rent is reserved (/i), nor that heriots or other casual and accidental services (e) See Earl of Cardigan -y. Monta- cordingly per Holt, C. J. j but gu, App. No. 14. (2) Note; see ib. 73, contra per Lord Ch^ there was another objection to Cowper ; and see Right -u. Tho- the lease. mas, 3 Burr, 1441, 1 Blackst. (/) Fide supra, p. 50g. 446. (^) See Morricey. Autrobus, Hard, {h) See 3 Cha. Rep. 78. 325. 3 Cha. Rep. 66—68, ac- 2 L wbiclL 514 OF THE RENT TO BE RESERVED which have been usually rendered, are not reserved by the lease under the power {i). It should seem that where the usual rents are requir- ed to be reserved, and a certain sum was formerly paid, with a covenant by the lessee to pay all the taxes, a re- servation of the like rent, without a similar covenant, would be a fraud on the power, for the new rent would only be nominally the ancient rent, as it would be sub- ject to a deduction for the land-tax, and other taxes which would in ellect reduce the rent below the sum an- ciently rendered (A), The word rent, in powers of leasing, is, with great propriety, construed to mean not money merely, but any return or equivalent adapted to the nature of the sub- ject demised, therefore upon a lease of mines, a due pro- portion of the produce may be reserved as a render in lieu of money, although the power requires a '' rent" generally to be reserved ( w). 11. When it is ascertained thatthe proper quantum of rent is payable, the next question is, vv hether the form of the reservation be proper. Where the usual or a.icient rent is required, it must be reserved in the way it has commonly been; if gold has been usually reserved, silver cannot be made pay- able in lieu of it : if it were commonly paid at four days, a reservation at one, two, or three days would be void, unless the power require the yearJij accustomed rent to (i) Baugh V. Haynes, Cro. Jac tagU;, App. No, 14. (8) ; Good- yQ, Mo, 759 ; Co. Litt. 44, b; title v. Funucan, Dougl. 56o. Coventry 1;. Coventry, 1 Com. (/«) Campbell v. Leach, Ambh 312. 740 ; Ba«8ett's case cited, ib (A) S^a Earl ©t" Cardigan v. Mon- 'JA^. be Under powers of leasing. 515 be reserved ; in which case^ the whole rent may be made payable at one time, or at several periods (a) j but a diilerence of words is not material; therefore a reservation of eight bushels of grain in lieu of a quarter is good, because it is all one in quality, value, and na- ture (&) • and a reservation of the rent before the usual day of payment is said to be valid, because payment be- fore the day is payment at the dav (c). The strictness on this head has been carried so far, that it has been considered that two several farms not usually let together could not be joined in one demise, with a reservation of one and the same rent, nor a 'parcel of a farm rendering rent -pro rata (d). But it has never been necessary to decide these points upon powers in private settlements, and it probably never may. The questions have generally arisen upon leases under the statutes by ecclesiastical persons, tenants in tail, and husbands seised jure uxoris ; and notwithstanding the cases in the books, a lease of part at a rent pro rata was considered as valid by very able lawyers. And the doubt to the contrary has, so far as it relates to eccle- siastical leases, been removed by a late act Of parlia- ment {e) ; which act, very unaccountably, does not re- move the doubt as to leases by tenants in tail or hus- bands seised jure vxoris, nor does it validate leases by ecclesivastical persons of two or more farms together, which have been usually let separately. (a) 6 Rep. 38, a; Campbell v. (c) See 2 Lord Raym. HQS; sed Leach, Atnbl. 740 j see Earl of qu. et vid. infra. Cardigan v. Montagu, App. (ti) 5 Rep. 5 b; 3 Cha. Rep. 75 ; No 14. Smith V. Trinder, Cro. Car. 22. {b) Mountjoy's case, 5 Rep. 3b; (e) 3f) & 40 Geo. 3. c. 41. sec3 Cha. Rep. 75 ; 1 Enrr. 121. . 2 L 2 It 516 OF THE RENT TO BE RESERVED It is clear, however, that the mere circumstance of the rent being reserved out of the land, and recent im- provements on it by building, will not vitiate the lease, although, as it has been argued, part of the rent issues out of the new buildings (f). To prevent any doubt on these points, where powers are given to lease at the ancient rent, it should expressly be declared, that leases may be made of part at rents pro rata, and that lands usually demised by several leases at several rents may be demised by one lease at the aggregate of the old rents. TJ^e rent to be paid should, in strictness, be speci- fied in the lease ; but although the reservation be made in the very words of the power without stating the sum in particular, the lease will be supported if the reserva- tion have reference to some standard by which the rent can be ascertained with certainty and ease, for id cer- tiun est quod cert um reddi potest ; but if the reserva- tion be vague and indefinite, and not easily reducible to a certainty, the lease will be void. As an instance of the first rule may be quoted, the case of Lewson v. Pigot (e), where, under a power to make Jieases of cer- tain lands, reserving I2d. for every Cheshire acre, a lease was made of all the lands, "^ reserving all the rent intended to be reserved," and the lease wa«, determined to be valid : because. Lord Chancellor Cowper observ- ed, there was an absolute mathematical certainty, than which nothing can be more certain, the very power provided it should be so ; at least 12d. for every Cheshire acre (o). It was only necessary, therefore, t» (/) Read v. Nashe, 1 Leo. 147- (o) See i Cha. Rep. 76- (^) ?, Cha. Rep. Ql cited. compute UNDER POWERS OF LEASING. 517 compute the number of acres in order to fix the rent (jp); and in a recent case, where a tenant for life, with a pow- er of leasing, contracted to grant a lease at the yearly rent of 71. for every acre, the lands upon a proper survey to be hadj should appear to contain^ and so in proportion for every lesser quantity than an acre, the uncertainty of the rent, was objected against the performance of the agreement, but Lord Redesdale said, that he did not think it uncertain, for it was capable of being reduced to a certainty, and it was a common form of reserving the rent in the country where the land was situated. Every executory contract must contain this species of uncertainty, but if it contains all that leads to future certainty, he took it to be sufficient, and he accordingly decreed a specific performance of the contract (q). The second rule is exemplified in the great case of Orby V. Mohun (r), where the power was to grant leases of all lands anciently demised at the ancient rents, and of the other lands at the best rents that could be gotten. The power was exercised by two leases, by one of which all the lands not anciently let, were demised, reserving thereon " the best improved rents," and by the other, all the lands within the power were let, re- serving the " ancient and accustomahle rents," so that instead of specifying the suras to be paid as rent, the words of the power were repeated. The cause was {p) And see Audley v. Audley, {q) Shannon v. Bradstreet, 1 Rep. 2 Cha. Rep. 82 ; but note there T. Redesdale, 52. the power does not appear to (r) 2 Vern. 531, 542, Prec. Cha. have required the reservation of 257, 2 Freem. 29I ; but re- any rent. ported in 3 Cha. Rep. 56. ^ heard' 5l8 OF THE RENT TO BE RESERVED heard before Lord Keeper Cowper assisted by the two chiefs. Holt and Trevor. Thej unanimously agreed that the lease was void, as to the demcsneSj as the remainder-man could not possibly tell what to demand, under the reservation of the best improved rents. But as to the lands anciently demised. Lord Chief J. Holt, held that the rent was certain enough, and the lease good. It must be admitted, he said, that a power to lease, reserving the ancient rent, is a certain power, and well enough to be understood, what it is and what it means, and why he asked, shall the same words that create and reduce the power to a sufficient certainty, when turned into a lease render it uncertain. The same certainty that is in the power, is carried over into the lease, which is the execution of it, but neither in the one or the other is it mentioned what the old rent is, but that may be averred, and that is certain which may be made certain. But the Lord Keeper and Lord C.J. Trevor were of opinion, that the rent, even as to the lands anciently demised, was not certain, and that therefore, the lease was void. They argued, that as the intent of the settlement was («j, that the tenant for life in possession might lease ; so it was on the other hand that the revenue should be diminished ; but the antient rent at least reserved, and in such be- neficial manner, as might with certainty, and without any difficulty be recovered ; and for that reason, it was provided, that there should be a counterpart of the lease, that it might be better known what the rent (*) 2 Vern. 543, 544. wasj U?«DER POWERS OF LEASING, 519 was, and how to recover it. If the rent had been men- tioned in the lease, there if the tenant had refused to pay itj the proof would have been turned upon the tenant, to shew the rent in his lease was not the ancient rent, and if he should do so, it would make his lease void. But as the lease was contrived, the remainder-man might be baffled and nonsuited twenty times, before he could de- clare or avow in certain for the rent payable in the lease, and yet the tenant still holds the land, and doth not prove his his own lease void, as must have been done in the other case. Where there is a power of leasing in gene- ral words, as reserving the ancient rent ; in the execution of the power which is to be explained and made certain, the rule, certu7n est quod cerium redcli potest, is to be un- derstood of a reference to that which is absolutely certain, to a former letters patent or the like : but this is rather a delegating the power of leasing to the plaintiff, than an execution of the power, and is the first attempt of the kind ; and it is a good rule, that what never has been, ought never to be; and therefore they adjudged the lease to be void, and this decree was confirmed in the House of Lords {t). AV here the rent is required to be reserved at particular days, it must of course be reserved accordingly, but where merely the best yearly rent is required to be re- served, it may be made payable quarterly, or half yearly ( w). It seems clear that the rent cannot be reser- (/)3Bro.P.C. 248, nom. Dutchess {u) Campbell v. Leach, Ambl. of Hamilton v. Mordaunt, and 7^0 ) 6 Rep. 38, a. See Earl of see Owen v. Thomas, reported Cardigan v, Montagu, App. No. Cro. Car. 94, 3 Keb. 380 cited. 14. ved 520 ' OF THE RENT TO BE RESERVED \ed after the day appointed^ {x) nor as it should seem Jiefore the day as that would have a tendency to benefit the tenant for life, at the expense of the rcmaimier- man (y). It is perfectly clear that several demises may be com- prised in one deed, although very subtle distinctions are taken between what are, and what are not distinct reser- vations so as to coiislitutc severcl Jeases. It frequently happens that lands comprised in a power, are demised in the same lease with lands not comprised in the power, or lauds are demised, as tosome of which the power is duly complied with, and as to others, it is not ; and in these cases, the validity of the lease depends upon the quan- tum of the rent reserved^ and the mode of the reserva- tion. The first question arose in How and Whitfield (z) ; the ancient rent was required to be reserved, which amounted to 6s. per annum, aad by the pleadings it ap- peared, that the lands within the power inter alia, were demised, reserving proindc 6s. per annum, and the court thought it might be intended tliat the inter alia might comprehend nothing, but such things out of which a rent could not be reserved, and then the 6s. were reserved only for the 5 acres (the land comprized in the power). However the proinde might reasonably be referred only to the 5 acres, and not to the inter alia, and that a dis- iinct reservation of 6s. might be for 5 acres, and judg- ment was given accordingly. Thus the case is reported (x) See Ludlow v. B.ckwith, Al. Show 6? } and see Earl of Car- go, d'lgan v. Montagu, App. No, (y) fjie iwprcp. 515. 14. (z) J Venir. 339, 2 Jo. 110, 2 in UNDER POWERS OF LEASING 521 in Ventris;, but even on that statement the court does not appear to have decided, what it would have been diffi- cult to doj that a lease of lands comprised in the power, •with other lands, yielding therefore a single reiitj suffi- cient only for the lands in the power, should be held to issue out of theiii only. The court appears merely to have taken advantage of the pleading, and to have intended that there was a distinct reservation of the Gb, for the lands comprised in the power, which certainly would have been valid ; and moreover it appears from Jones's report of the case, and he was one of the judges before whom the cause was heard, that the court thought the objection good, but the defeodant perceiving that the opinion of the court was against him on another, which was the grand point in the cause, consented upon paj^ment of costs, that judgment should be given for the plaintiff. With this Shower's report agrees, and Jones is there made to say, that '' proinde" was the most com- mon and general word used in leases for all the things demised. In a case like that of How and Whitfield, it would not be possible under any construction, to support the lease. If, for instance, the reversions of the several estates were afterwards to descend to different persons, there must be an apportionment of the rent, and then sufficient would not be left to satisfy the terms of ^he power. There is no sound principle upon which it can be contended, that the whole rent is reserved in respect only of the land within the power. The great case of the Earl of Cardigan v. Montagu, (a) went a step further. It appeared that lands com- (a) App. No. 14. (3) (5) and see (2). prised 522 OF THE RENT TO BE RESERVED prised in the power^ and lands excepted out of the power were demised by one lease at an entire renty and the lease was deemed invalid;,and not warranted by the power : and it does not appear to have been thought necessary to en- quire whether upon an apportioiimeut, the rent payable in respect of the lands comprised in the power, would be sufticient. It seems to have been thought that the difficulty under which the remainder-man would labour in this respect, was of itself a fatal objection to the lease. The other point arose in the case of Orby v. Moliun (h), but it was unnecessary to decide it. Lands anciently and lands not anciently demised, were all demised by one lease, reserving therefore " the ancient rents/* and sup- posing the reservation good, considered abstractedly, the question was whether the lease was not bad, on the ground that it comprized the lands not anciently demised. In support of the lease it was argued that the rent issuing out of all, must be apportioned, and so it would be in nature of several leases in construction of law, because reddendo singula singulis, the ancient rents shall be con- strued to be reserved for the lands anciently let, and no rent being reserved for the lands not anciently demised, 'tis void as to them. But Lord C. J. Trevor expressed a contrary opinion, and placed much weight on the word, " therefote," in the reservation. He, however, declined delivering an absolute opinion on the point, as he went upon another reason (c). Lord Keeper Cowper also thought the lease bad, on the ground of the reserva- (*) 3 Cha. Rep. 5Q, supra p. 517. («) 3 Cha. Rep. 58, 59. t tion UNDER POWERS OF LEASING. 523 tion (d). But Lord Chief Justice Holt maintained strongly the contrary opinion j he insisted that the reser- vation was several, for that which was not anciently de- mised, will not hurt the other, but must fall to the ground, and the contrary opinion, he said was contrary to all the rules of law, and as to the word therefore, he clearly proved that however joint words are, yet they shall be taken severally, where they have a dis- tinct subject matter to work upon (e). Lord Chief Justice Holt's opinion, appears to be supported by the case of Campbell v. Leach (c), there opened and unopened mines were demised by one deed, reserving generally a certain proportion of the produce. The master of the Rolls held that the power did not authorise a demise of the unopened mines, and the lease being of opened and unopened mines, the whole was void. Upon the appeal it was argued not to be like the case, where two things are granted which are inseparable, and the one is out of the power, and the other within it, in such case the lease might be void as to both. But here the opened and unopened mines, were separate, and the rent reserved was not a gross sum for the whole, but a proportion of the profits of each mine. And the court accordingly over-ruled the objection. The cases seem to establish this principle : where as in How V. Whitfield, and the Earl of Cardigan v. Mon- tagu, an entire gross sum is reserved generally and (d) 3 Cha. Rep. 78, 79. (e) 3 Cha. Rep. 68, 6g. (c) Ambl. 740, vide supra, part bt4f OF THE RENT TO BE RESERVED part of the lands arc not comprised in the power, or being comprised in the power, are not duly demised, the power is badly executed, although the rent upon an apportionment would he sufficient for both estates. But where as in Campbell v. Leach, a rent is reserved according to the quantity, or produce, as the tenth of the produce of every mine, or 40d Feb. 1712. — The cause to try the validity of the last revo- cation came to be heard before Lord Chancellor Harcourt, when several authorities being cited, his Lordship took time to consider thereof; and a few days afterwards he declared it was a new case, and that he did not find any authority to warrant inch a revoca- tion, nor was there any instance in any of the authorities insist- ed on of such power of revocation, but he referred it to the Judges of B. R. for their opinion : Whether the uses limited by the deed poll of 5th Octobef 1687 were well revoked by the deed of 11th October l704, by virtue of the power of revocation contained in the deed of l6th March IGS-I-, or by the recital of that power in the deed poll of I687 ? lOth July 1713. — Lord C J. Parker, Powys and Eyre Justices, certified that they, with the late Mr. J. Powell, heard counsel upon the question^ and were all four of opinion that the power of revocation and limitation of new uses in the deed of March 1684 was fully executed by the deed poll of I687, and that the further power in the deed of March 1684 to revoke any new li- mitation or appointment was void in the creation as to such uses as should afterwards be newly limited, unless a power of revoca- tion should be again expressly reserved, which they thought was jiot APPENDIX. 545 \iot done bv the recital oi' the po'.vers in the deed poll of I687, and consequcPilly that the uses hmited in tlie deed poll were not revoked hy the deed of 17.04, and that all fcir were ready to have given their opinion accordingly; hut some of the counsel for the defendant desiring to be further heard, they three (since the death of Justice Powell) had heard counsel again, but saw no reason to alter theSropitiions. IS/A J///// 1713.— Lord Harcourt concurred in the opinion of the judges, and decreed accordingly. 17! 7. — From this decree there was an appeal. The reasons for the appellant were signed by Northey, Ravmond, and Jodreli ; and they insisted, l.That the origir.al power restrved to re- voke all new uses, was valid, for the intent {;fthe party ought to be the guide in these cases, and this inient was as fully expressed by the proviso precedent to the uses in the deed of 1687, as it could ever be by any proviso subrequcnt, which had there been, it was adantied the uses created by the deed of 1704 would have been good. And 2. Tliat the original powers were only partially executed by the deed p:)ll of 15&7, and the further power to revoke such new uses was still subsisting, and such an original existing power had never been deterujiiiod before this to be void. 'Cn the other hand, the only legal reason insisted upon by Powys and Cowpvr, who signed the reasons for .the respondent, was, that if such ambulatory and endless powers or revocation (powers within powers, and without precedent in the law) i.v( p allovi-ed, purchasers ^nd marriage settlements v/ith ease might be defeated, and titles be rendered piecarious and uncertain. This case was ably argued in the house of Lords by Sir Thomas Powys and Sir Peter Kin^ for the respondents, and by Sir Edward Northey for the appellant- Both sides insisted upon the resolutions in Digges's case, l Co. 1 73, as authorities in their favour. For the respondent, it was argued, that the po\^er could be exercised but once; and ihey likened powers of this nature to conditions at common law, and that at common law such a con- tinuing condition as this could not have been created. They en- larged upon the endless contests which a contrary doctrine would 2 N introduce. 546 APPENDIX. introduce, and the dangers and frauds to which it would subject purchasers, whilst on the other hand it was easy to add a power of revocation where such was the intention. And they moreover insisted, that as a power of revocation may be reserved tuties qiiotlts^ this power was only tantamount to the usual power of revocation : and being once fully executed without a new power reserved, was June I us officii. On behalf of the appellant, it was argued, that as the other party admitted that a power of revocation toties quoties might be newly reserved, it was impossible to contend that this power which in its first creation enabled such revocation toties quoties^ was invalid. In the cases which had occurred the power was single, and it was theretore absolutely necessary to reserve a new power ', but in this case the first power prevented the necessity of any future power. It was more consonant to the rule of law to limit all the uses in the first deed declaring the uses of the fine, 9 Co. 9; and this was no greater stretch than a power to appoint by will ; in which case the last will, although there were twenty, would pre- vail, or a power to appoint by the last deed the donee should execute in his lifetime. It was in effect a declaration that the last uses he should declare only should stand. In answer to the other objections it was ^aid, that the power was only for the life of the owner, and so uses could not be li- mited hi infinitum ; nor was it dangerous to purchasers, as the future power would be fraudulent against them, and every pur- chaser would take a conveyance of the interest, 2s well as a li- mitation under the power, which would extinguish the future power. But, even admitting the weight of this objection, it was forci- bly argued, that the recital of the powers in the deed of 16S7 was tantamount to a declaration of his intention that such powers should continue, and therefore amounted to a reservation. The decree however was afiirmed in the house of Lords. The journals of the house of Lords state, tli.^t after hearing the judges of the court of King's bench as to the matter of law, tvho conti- nued oj ills saf?:e opinion as was certified by them to the court of Changci-y, APPENDIX. 547 Chancery, and also hearing all the other judges who concurred in opinion with the judges of the court of King's- bcnchj the ap- peal was dismissed and the decree affirmed (a). No. Iv^ Daniel v. Goodiu'm {b). Exchequer, Trinity term, 8 and 9 Geo. II, The husband, antecedent to the marriage, covenanted with his Intended wife that she should have a power to dispose by will of her estate and effects. Subsequent to the marriage, the wife was made executrix to the last will and testament of A. The wife afterwards made her will of the goods and effects she had as executrix, and constituted B executor thereof. Upon a declara- tion in prohibition, and demurrer to the plea put in to it, the question was, whether the spiritual court had a power to grant a probate thereof, or whether it should not operate as an appoint- ment to be carried into execution by a court of equity ; and as to this point, the court took this difference : where the will sub- sisted upon the agreement of the parties antecedent to the mar- riage, there the will is in the nature of an appointment, which is to be carried into execution by a court of equity; but where the wife is made executrix to another person, there the spiritual court may grant a probate of her will, for she may continue the executorship by constituting a person executor to the first testa- tor, and she may by law make a disposition of choses in action, which she was possessed of as executrix, because in auter droit, and the spiritual court may prove such will (c) . , (a) Journ. Dom. Proc. Q May 1/17. • {h) Vide supra, p. 258. (c) 1 Mod. 201 ; Salk. 308 J Vent. 4 j 6 Mod. 241 5 1 Roll. Abr. 508; Moor 339} 2 Mod. 170. 2 N 2 No, 54S APP^fJDlX. No. V. Manscll w Price (r). At ibe RoWs, Michaelmas Term, 9 Geo. II. Ca'I'hIiUIne Mansell, before her marriage with the defcu' uant Price, assigned all her personal estate due to her by bond, judgment, Sec. except lOOOZ. which the defendant was to have innriediavely to his own use, in trust for the defendant Price, and and Catherine his intended wife for their lives, and the life of the survivor of theni, and afterwards that the principal money should be laid out in land to tlie use of the iieirs of the boc'.y of Cathe- rine by the defendant ; aisd for want of such issue to the use .of the survivor for ever, provided that Catherine should have power at any time diu'ing the coverture by will or dc^d executed in the presence of three or more credible uitnesj^s, to gi\'c or dispose of any sum out of the principal money not exceeding ioOOl. to such persons and uses as she should limit and appoint, which should be payable immediately after her decease in case she died without issue by the defendant Price, Catherine Price some time dur- ing the marriage duly executedthe power by deed poll in the pre- sence of three witnesses, and thtrcby, for tb,e natural affection sh|| bore to her niece Catherir.e^Dawkins, and her eldest daughter Ca- therine, and for the next daughter, her said niece should have, did give, grant, and dispose of the said sum of 1500Z. to Sir Ed- ward Manscll, his executors and administrators immediately after her decease, if she died without issue, in trust, that he should pay to Catherine the eldest daughter of her niece 1000/. when she should attain the age of twenly-one, or marry, iri case the marriage should be bv consent of iicr mother; but if she should die before twenty-one, or married without consent, that then it should be to ?uch uses as Catherine the niece, whether sole or covert by deed or v.riting, should direct and appoint, except lo her husband, if she should have any, with or without power of revocation, and the other jOQL she directed to be paid to the next daughter of'hcr fej Fide supra, p, 26o. niece APPENDIX. >'i4D Ri€ce when she should be twe-nty-one, or marry, exactly under the same terras as before. Catherine, the niece, had afterwards issue, another daughter, and then Catherine Price died without issue. This bill was filed by the guardian of the infant daughters to have the money paid, and to be put c^ut for them to have the interest thereof immcdiateiv. For the dcfei-idant Price it was insisted, that he was entitled to the interest of the 1500^. until the same should respectively become payable, either as a resulting trust (he being administrator to his wife), or part of his right under the articles taken fro'.n him bv the execution of the power. The first question was, whetl^er parol evidence could be admit- ted {o~explain the intciition of Catherine Price, what should be- come of the interest till the times of payment ; for if that could be admitted, there v.as sufficient to prove the husband should not have it, but that it should go to the same persons to whom the money was given by the deed of appointment, and the Master of the Rolls was of opinion such parol evidence cnuld not be road. The second question was, whether there could be. a resulting trust to the husband of the interest of the 1500/. till such time as it should become respectively payable according to tlie limitations in the deed. As to this, he said this was not the case of a resulting trust, or ^a trust originally credited, but it arose on a power given and exe- cuted out of an original trust, by which it must be considered as if it had never been comprised in that trust, because it was absolutelv taken out of it by the execution of the power. This case of money differed from land where there was not a compleat disposition, for here was an entire and full disposition of the whole money, and it differed also in this respect, for land by la.w was always presumed to make a profit, and the form of all writs in real actions supposes it ; but in the case of money it's otherwise, for its not supposed to have any profit at all, and the time was when It was thought illegal to make a profit of money, and the canon law would not suffer a usurer to make a will. Then here is a dispositioiv of this money to Sir Edward Mansell, a trustee, by virtue of the power who is not bound to put out this money, though he mnv be- compelled according to the iudyment and di- 2 N 3 rection I oj" APPENDIX, , rection of tlii? court, but of his own head he ha"^ no authority to put it out ; and further, if a trustee not having power did put out money, it was at his own risk, and in that case since he had practiced, it had been thought that such trustee putting out mo- ney without the direction of the trust, or of the court, should have the profit for the risk of putting it out ; but now if a trus- tee puts out money when not warranted by the trust, he must an- swer for ill security, and yet shall not have the benefit, beca\ise of late it had been easy and safe to lay out such money in govern- ment securities which this court thinks proper securities, having an act of parliament on its side. Then the whole capital money being in the hands of the trustee entirely for the benefit o? cestui que trust, would draw the interest with it, so he decreed there would be no resulting trust on this power of appointment. No. VI. Olservatlons on Hills v. DoTcnto??. [n), ^' The ground of my determination seems to have been mis- understood. I was of opinion in Chapman y. Gibson, that the heirs being persons for whom the testator was under no natural or moral obligation to provide, there was no occasion to enquire, whether the heirs were provided for or not. I did indeed say, in that case, they having parents alive whose circumstances did not appear, they could not be presumed to be wholly unprovided for. I found it so often laid down, that the court would supply the want of a surrender against an heir, if he was not wholly unpro- vided for, and so many dicla, that if he was in that situation the court would not compel him to surrender, that I thought it pro- per to enter rather largely into the consideration of the principles upon which the court acted, in supplying surrenders ; and I col- lected the principle to be this, that the heir shall be compelled to make good the disposition of his ancestor. If made in discharge of a moral or natural obligation, as in favour of creditors, wife fa) Fide supra, p. 281. and APPENDIX. S51 and children; but still they had not done it where the heir, being a, son, conid shew that if he was compelled to make that surrender, the consequence would be (he being a son wholly unprovided for), that he would be compelled to fulfil the intentions of his father in discharge of a moral or natural obligation in favour of a widow, or of his brothers and sisters, when it was manifest that he had ne- glected to discharge the natural obligation he was under of pro- viding for him, his eldest son. I admit that it had been laid dovv-n that the court v>ould not enter in^o the quantum of provi- sion of Vvhich it is declared the father is the proper judge ; and feeling all the difficulties arising from the exception so often made to the rule of an heir wholly unprovided for, I shall be very glad to find that for the future the court may be at liberty to get over this exception to the rule. But if the ca*e of a son wholly unprovi- ded for were to come before me, I should hesitate, notwithstanding the great authority of the Lord Chancellor, to make a decree against him, and was very glad to be relieved in the case of Chap- man V. Gibson, from the necessity of deciding upon that point, it being perfectly clear that the principle could not apply to the case of a collateral heir for whom the testator was not under any obligation to provide, «« R. P. A." No. VII. Leach v. Campbell. Reg. Lib. A. 1773, fol. 698 faj. The power of leasing is stated correctly in Ambler. The original bill stated, that Leach pretended, that by inden- ture dated 10th. March 1739, Pryce Campbell, in consideration of former covenant, and for other considerations did dcm.ise, and grant to Leach, all the mines, veins, pitts, groves, rakes, beds, and holes of lead, lead ore, and ail other mines, which were, or should at any time during the demise be found out, in or (a) Fide supra, p. 297. 2 N 4 under ■ 553 APPENDIX- under the lands, wiih full licence, to open pitts, &c. and work the mines, and to nnko drains, Sec. with right of way, to carry away the ore, and liberty to build forges, he. To hold from 25th March 175f), for 26 ycarr-, paying unto Pryce Campbell, his heirs and assigns dmuag the continuance of the demise, the 8th tondish of all the lead, &c. whicii should be got, thef lessee to cleanse and deliver the same on the banks, eM^ three m:)nths, or oflcner if required. That the defendant inliltcd the lease was good under the power. But the plaintiff submitted that the lease was absolutely void, not being authorized l)y the power, for that such power was intended to extend to messuages or lands only, atul not to mines as appeared from the condition of the said power, that there sliould not be contained in any lease, any clause, whereby any power should be given to any lessee to commit waste, whicli condition could not be complied with in a lease of mines, a rcstraii>t from CQmmissiou of waste, being totally inconsistent and contradictory to a lease of mines, and the plaintiff also' submitted, that if the power should be construed to extend to mines, yet the lease was not within the power, for the lease beinn: made for twenty-six vears, was made for a longer term than the power authorized, which was only twenty - one years. And that the lease, being dated the 1 8th of March i7oO, '''-ud it being'expressed, I each should 'enjoy the premises from the 25th of that month, the s.rine v/as in reversion, whereas the power declared, that the leases should be in possession only. And that ih.e reserved rent v-as not tr.ereh-y made incident to the reversion of the preuiicie?, as whs rcqiiired by the terms of tlic pjwer, but was made payable to Campbell, his heirs and assigns. And also that such rent was not a yearly rent, nor was it the most improved rent which at the time of tl^.e lease could be got for the miiK'S. ! he rent ought to have been a 4th instead of the Sth, in corroboration of vhich the prodt^pe of the mines was stated, and it was insisted that Leach deceived Campbell, the lessor who relied on his information. The answer admitted the lease to be in effect as stated. Leach staled thnt he had opened no new mines since the death of Campbell, or the making of the lease, he insisted upon his right t* APPENDIX. 553 to the open mines at the tiriie of the lease, which had been worked by him tVoivi l/'43, under a lease, for twenty one years at a great expence. And he submitted that the parties intended the oo-ver to extend to mines as the mines, were at the time of th<- mar.Kigt, and many years before, in iiis possession. 1;-=: stdte'd, thai he being in possession of a lease for twenty-one yearSj-Jttfen.v ncing on the Sth June 1 753, ending in June 1 764, P. C'lri^R-i', cigrceJ to acid twenty-one years to his term. By the lease for twenty-six years, the term of twenty- one years ■within a few months, was added to the then subsisting term. He insisted that the rent was incident to the reversion, that the reservation quarteiiv, or oftcner was more beneh'.ual than being reserved yearly, and that the vent was the best that coidd begot. That after the lease of l759, and with a view to his en« ioving for twenty-six years, he laid out large sums in making levels, Sec. from several of which he had yet received no advan- tage, allhcngh between the 25th of March 17^9, and the 15th of June 1771, he had paid above 33,000l. in making and repair- ing the works. He likewise stated that in 1763, he agreed to erect smelting works upon the vvaste lands of Pryce Campbell near the mines, and made proposals to Campbell, for taking a longer term in them than he had in the mines, or that a compensation should be made for them at the end of the lease of the mines. P. Campbell after considering the proposals, did by letters to the defendant in 1 763 declare that he would bv all means have the works go 0:1, and that as lie shoidd not grant any lease of that for a longer term^than the mines, it was but reasonable that ^ sum should be agreed upon, to be paid to thg defendant, upon the expiration of the said term, the works being left in good repair, and the tools to be bought by appraisement, and that if the mill was .left in perfect good repair, he, P. Campbell, should think what the defendant demanded, half of the sum laid out in building it, not at all unreasonable, and that the defendant would always tind him very ready to do what he thought was so;' and P. Caifcipbell intimated his intention of becoming a partner which he afterwards declined. That in consequence of the lease and 554 APPENDIX. and letters of agreement the works -.vere erected, but a regular agreement was omitted to be executed until 1768, when P. Camp- bell informed the defendant that he would have articles drawn relating to the works, but he died in that year without having executed any. The answer insisted upon the lessee's right to the enjoyment of the term, at least during the residue of 21 years fro nxjja e mak- ing of the lease. IHv The Master of the Rolls made the order stated in Ambler. Then a cross biil \\as filed by Leach for establishing the lease and agreement. The Master of the Rolls directed the account prayed by the original bill, and dismissed the last bill. I met with an order for the hearing on the appeal, but could not discover the decree on the appeal or any subsequent proceedings, although I searched with attention to the end of the year 1777 for the original as well as the cross cause. No. VIII. La7ie V. Terry. Reg. Lib. B. 1153, fol. 527 (o). It was charged by the bill, that it was previously to the mar- riage aojreed that the wife should not have the benefit of the ioin- ture, and that Terry, in trust-for whom it was executed, threat- ened to throw Simon into prison if he refused to come into the measure ; that Simon laboured under a mortal disease, df which he soon after died, and was greatly impaired in his senses as well as his health, and in that situation Terry prevailed on him to marry Ann, ivith zuhom he never cohaiited; and the plaintiff sub- mittcd, that the intention of the power was to make an hand- some provision for the donee's wife, and thereby enable him to marry one of circumstances suitable to his own, and nut by co- lour of such jointure to pay his own debts, to which the prc- («) Vide supra, p. 32g. APPENDIX. 555 mlses were not liable, whereas the jointure set up was in fact a settleiDcnt on Terry. It was decreed, " that the settlement by deeds of lease and re* lease, and the paper writing entitled proposals upon executing the marriage deed, were to be considered as one entire agreement, and that the said agreement and settlement ought to be deemed in this court fraudalent and void, except as to the annual sum of 2ol, provided for the benefit of Ana Lane daring her life ; and it was ordered and decreed that the same should be set aside, except as to the said annual sum of 20/." Note, the wife conveyed to Terry after the death of her hus- band upon the trusts, as stated in Ambler. I have searched for the case in the King's bench, but did not jnect v.-ith it. No. TX. Aleyn v. Belchier (a). Reg. Lib. A. 1/57, fol. 432 (B). The estate in question was devised to trustees in fee, to raise jnoney by mortgage, and then to uses, under which Edmund Aleyn was tenant for life, -' with power to him to make a join- ture of the manors lands and premises aforesaid, or any part thereof, upon any wife with whom he should after think fit to marry, for her life and in bar of her dower." The trustees under a decree mortgaged to Belchier in fee. Edmund Aleyn, shortly after his marriage, without any pre- vious agreement, proposed to make a provision for his wife ; and being then indebted to Belchier, by an agreement bearing date the 1st day of August 1750, and made between Aleyn and his wife of the one part, and Belchier of the other, reciting the mat- ters aforesaid and that Aleyn was indebted to Belchier in a cer- tain sum, it was witnessed, that in full satisfaction of that surn Aleyn covenanted to procure a conveyance and settlement to be (a) Fide supra, p. i2Q. made 555 APPKNDIX. made by the trustees of the estates, devised to them, to the uses, &c. in the will ; and immediately after siieh settlement, to limit the same to his wife for her life, in case she should survive him for her jointure, and that he and his wife, as soon as they should become seised of the said estates for tlieir lives, would by fine, &c. convey the same to the use of Belchicr, or as he should appoint, for the lives of Aleyn and his.»iji|e, and the survivor of them: in consideration whereof, Belc^pF cove- nanted to pay the following annuities, &c. viz. to the wife," for the joint lives of her and her husband an annuity of 6o/. for her separate use, an annuity of 60/. per annum to Aleyn if he should survive his wife, and lOOZ. a-year to the wife if she should sur- vive him, and to the wife's son by a former husband 100 guineas at twenty-one, and 5/. a-year in the mean time for maintenance. A settlement was aflerv/ards executed by the trustees, and Aleyn limited the estates to his wife for her life under the 'power, sub- ject to the mortgage made by the trustees to Belch ier, and after- wards Aleyn and his wife conveyed their life estates by a fine to a trustee for Belchicr. Belchier iusi.-tcd that the settlement was a good and efiectual settlement, and was made upon a good and valuable consideration and was not void, and that he was entitled to the benefit of it. The remainc}cr-man stated, that he was advised, that in case the power of joinluring was executed by Edward Aleyn for any other purpose than for a fair jouiture for his wife, such execution was contrary to the intention of the testator, and .i fraud upon the remainder-man. It was decreed, '• that the dceCi of appointment was not to be supported in this court any further than to cliarge the prennses with the annual sum of 100/. agreed to be. paid by the deed of 1st August to Jane Aleyn the wife of Edmund," &nd directions wer-c gix'en accordingly. Ni#. APPEND I :?. ^^1 No. X. Scroggs V. Scroggs. Reg. Lib. B. 1754., fol. 496 («). The trust in the agjrecment before marriage was " to permit cuch son or sons of their bodies, and the heirs-male of such sons, to receive the rents during all such time as the trustees should have in the premises, as the plaintiff's father, together Vv ith the trustees or the major part of them, or together with the survivor of them should appoint." By the settlement the eldest son was in every event to have lOO/. a-year, and children were substituted for so?is. The settlement vvas executed when the plaintiff, the eldest son, was tvv'o and one-half years old, and he had lost his sight. The plaintiff stated that his father wanted him to sell his reversion, which he would not do, and that then the father made a bargain with the second son, to whom he ap- pointed: That the father represented to the trustee that the eldest son had threatened to sell his reversion, and was very undutiful, 8cc. The plaintifi' insisted that the variation in the settlement, as there was th^n no other son, and he had lost his sight, was to war- rant an appointment to a daughter in case there was no other son. The father and mother denied any knowledge of the variation, and stated the disorderly life of the son, and his marriage to a woman of no fortune. The father stated that he applied to his son to join in the sale of the estate for his own benefit. The father's answer, in which he represented the Duke of So- merset, the surviving trustee, as a perfectly consenting party to the appointment, Vv^as flatly contradicted hy the Duke himself, who ^stated^ that he believed that the father had misrepresenied the son to him, and that if he had been apprised of all the cir- cumstances, he would not have executed the appointment. There appeared to be a dispute between the father and eldest (a) Fide supra, p. 330. 558 APPExVDIX. son about another estate, belonging to the son, of which the fa- ther had received the rents during the son's minority. It was decreed, '^ that the deed of appointment be set aside^ and that it be dcUvercd up to the plaintiff to be cancelled, and that neither the defendant Edward Scroggs (the second son) nor anv of his issue do insist on or make use of the deed of appoint- ment, or the contents cr operation of it, in any court of law or of equity ; and his Lordship doth declare, that the settlement executed after the marriage hath unwarrantably departed from the marriage articles, by limiting the estate to the use of such child or children as should be appointed, instead of limiting the same to such soji or sons. Sec. and that the same ought to be rec- tified ; and his Lordship ordered a new settlement to be exccutcef accordingly," and the father was decreed to pay the costs. No. XL Phelp V. Hay (a) . Rolls, l&th May 177S. l^th March 1747. — By the agreement made previously to thf marriage between the Rev. Abraham Phelp and Ayliffe Tufton^ After reciting, that upon the treaty for the marriage it wai agreed that AylifFe Tufton should have power, as well before as> after such marriage, either to make an absolute sale of her lands and chattels^ and with the monies raised by such sale to purchase other lands and chattels any where in England, and convey unto the trustees therein named, their heirs, executors, &c, or unto such other persons as the said AylifFe Tufton and her mother should nominate, as v/ell all such lauds and hereditaments wherein the said Ayliffe Tufton then had an estate of freehold or inheri- tance in fee simple or fee tail, or for terms of years^ or otherwise- howsoever, as also such lands and chattels which might be pur- chased as aforesaid, to and for the use and benefit of the said fa) Vide supra, p, 357, 269, Abraham AVPESDIX. 559 Abraham Phelp and AyllfFe Tufton and the issue of their two bo- dies in such manner and form, and by and after such rates, shares, and proportions either jointly with the said Abraham Phelp, or alone, separate, and apart from him as the said Ayliffe Tufton should think proper and fit to do. Qtk and 10th February 1749. — ^By indentures of lease and re- lease, and by a fine, Mr. and Mrs. Phelp (the marriage having been solemnized) conveyed her 6th part of certain real estates unto Sir George Hay,hisheirs and assigns forever,in trust nevertheless,to the use of the said Abraham Phelp, and Ayliffe his wife, and their assigns during their lives, and the life of the longer liver, remain- der to the use of such person and persons, and for such estate and estates as the said AyliiFe Phelp should in manner thereby re- tjuired, appoint • and in default of such appointment, in trust to, and for the use of the right heirs of the said Ayliffe Phelp for ever. Note. — The fine was declared to be to the use of the said Sir George Huy and his heirs, in trust nevertheless, to, for, and upon the uses and trusts beiore expressed. ' l3tk Feb. 1755.— Ey an indenture between Ayliffe Phelp, then the v.idow of the said Abraham Phelpof the one part, and the said Sir George Hay of the other part. After reciting the articles of 14th March 1747, and the indentures of the gth and joth of February I74'9, and the fine levied accordingly. And also reciting, that by the indenture of release, a greater power was given to the said Ayliffe Phelp of disposing and limiting her said lands and estates than was given, or intended to be given, to her by the said articles made previous to her marriage, it being the intention of such articles, and of the parties thereto, that the said Ayliffe Phelp should limit, settle, and assure her said lands and estates unto, and upon the issue of the bodies of them the said Abraham Phelp and Ayliffe, in case they should have any suchj iind the said Ayliffe Phelp having then three children by the said Abraham Phelp, to wit, Charles Tufton Phelp her eldest son, Jane Phelp her daughter, and James Phelp her youngest son, it is witnes* sed, that for the settling and assuring the said sixih part of the said premises upon the children and issue of tht said Aylitle Phelp by U^.e said Abrahanx Phelp, according to the said articles of agree* men 660 APPENDIX, ment, the said Aylifie Phelp, by virtue of the power unto her gfvcn^ as well by the mariiage articles as by the indenture of release, did grant, limit, direct, and appoint tliat the said Sir George May, :-nd his heirs, should from thenceforth stand seised of (he said undivided sixth pari of the said premises, and that the saidfineaniltheuscs there- of shouki enure to theuseof thesaid AyliffcPhrlpand lierassionsfor life, remainder, to the use of the saidCliarlcs -"ufton Phelp, James Phelp, and .lane Phelp, or to any or cither o{ them, tlicir, liis, or her heirs, and assigns in such manner and form, and bv and af- ter such rates, shares, and proportions, and charged and charge- able wit^i such sum and sums of money, unto and amongs't any or either of them the said Cliarlc> Tuiion i'help, -James Phelp, and Jane Phelp, and at such lime and times as she thesaid Ayliffe Phelp shonld by any deed, or by her will to be duly executed in the presence of^ and attested by three or n-'ore credible witnesses, give, grant, devise, limit, director appoint ; and for want of, and in default of such appointment, to the use of the said Charles Tiifton Phelp, James Phelp, and Jane Phelp, and Jiis and ihvir several and respective heirs and assigns as tenants in common, and not as joint Ifeants. Charles Tufton Phelp died under age, and without issue. iSthMaij l772. — The said Avlifie Phelp, by herwid,du!yexecuted dechiredherwillandnieaningto be, and shtf did thereby by virtue of the proviso aforesaid direct and appoint, that the said Sir George Hay should stand seized of the said sixth part of the said estates, in trust by morlgage lo raise and pay thereout to testatrix's daughter, Jane Phelp, her execiUors, administrators, and assigns, within six months after testatrix's decease, the sum of 2000/. and subject thereto, to the use of the said testatrix's son James Phelp, and his assigns for life ; remainder to the said Sir George Hay and his heirs durina; the life of the said James Phelp in trust to preserve continirent remainders, with remainder, after the decease of the said James Phelp, to his issue in general tail ; and in default of such issue, to tlie use of testatrix's daughter Jane Phelp for life ; remainder to the said Sir George Hay and his heirs during her life, in trust to preserve contingent remainders, with remainder after the decease of the said Jane Phelp to her issue in general tail. Al-PENDIX. 561i tAil, and in default of such issue, to the use of testatrix's mother, JPranccs Tufton, and her assigns for her hfe, with remainder to the testatrix own right heirs, with power for the said George Hay, and his heirs, with the consent of the person for the time beinff entitled to the estate, to sell the same, and to purchase other lands to be settled to the same uses. 18^^ Mai/, '778- — By a decree in a cause wherein the said James Phelp was plaintiff, and the said Sir George Hay, and Charles Blicke, and Jane his wife (late Jane Phelp) were defen- dants. The, Master of the Rolls declared, that he was of opinion;, that under the wiil of Ayli fie Phelp, the said Charles Blicke, and Jane, his wife, in hor right, were entitled to the sum of 2,000/. to be raised by way of mortgage of the estate in question, with interest from six months after testatrix's death j and that subject to such mortgage, the said James Phelp was under the said will entitled to an estate in tail general in the said estate, with remainder to the said Jane Blicke in tail general, and that all the subsequent or other limitations in the said will concerning the said estate were void; and that no valid appointment of such the reversion in fee,^^f the said estate ns aforesaid, having been made by the said Ayliffe Phelp, subse- quent to the indenture of l3lh February 17-55, according to the power therein reserved to her, the appointment made by such in- denture of 13th February 1755 did, as to such reversion in fee of the said Leicestershire estate as aforesaid, become absolute ; and that under the appointment made by the said Ayliffe Phelp by the said indenture of the l3th of February I755, such reversion in kt of the said estate belonged to her three children, Charles Tuf- ton Phelp, Janies Phelp, and Jane Blicke, their heirs and assigns as tenants in common, in ^qual third parts ; and that the said Charles Tufton Phelp being dead, intestate, and without issue, his undivided third part descended to the said James Phelp as his brother and heir at law; and that by the means and in manner aforesaid, the said James Phelp was then entitled to him and his -heirs to two-third parts of the reversion of the said estate so sub- ject and in manner aforesaid ; and the said Jane Blicke to her and her heirs to the remaining third part of such reversion as aforesaid of the said estate. 2 o Various S<>2 APPENDIX. Various proceedings were had in the cause. The Master found that the legal estate was in the heir of Sir George Hay, and ht joined with James Phclp who suftered a recovery of the estate, in a mortgage for securinij; the 2,000/. and interest. It appears by the register's book ^a) that the plaintiff submit- ted to the court that it was the true intent of the articles of l4//i March 1747, and the indenture of i3th February 1755, that Ay- liflTe should have power to limit and appoint an estate of inheri- tance either in fee simple or tail to her issue, but that it was never meant that she should have power to limit any smaller estate for her issue than an estate tail, and that the plaintiff was advised that there was no limitation contrary to the intention, but that he had an estate tail given to him subject to the payment of 2000/. The defendant of course submitted the contrary. Ko. XII. Rolerls v. Dixwcll. Lib. Reg. B. 1738, fol. 119. {b) The limitation was to the use of such of the children of the marriage for such estates, and in such shares and proportions as the husband and wife or survivor should appoint. The husband having survived his wife by his will, appointed the estate unto the plaintiff, his only son, his heirs and assigns for ever, upon condition that he and they should pay his only sister of the whole blood Elizabeth Mary Roberts SOOOZ. and 50/.ayear, for maintenance until she attained tw cnty one, or married, and the testator charged the estates therewith -, and in case the plain - tiff refufcd to pay the same, then he appointed the estate itself to the daughter, her heirs and assigns for ever ; 2000^. to be paid to Elizabeth Mary at twenty-one, or marriage j but if she died be- fore, the said 2000/. to be paid to his daughter Mary Roberts by another marriage at tv^enty-one, or marriage ; and he declared (a) Lib. Reg. B. 1777- fol. 537. Fide supra, p. i>6"3. the Appendix. 56'3 ihe 3000/ to be In satisfaction of the lOOO/. as stated in sEq. Ca. Abr. It was decreed, that '* the plaintiff was entitled by virtue of the appointment subject to the charge of 2000/, part of the sum of 3000/. therein charged for Elizabeth Mary, and of 50/. a year for her maintenance, and his Lordship doth decree, that the trus- tees do accordingly convey the same to him so subject as afore- said, and the defendant Elizabeth Mary is to be at liberty to ap- ply to the court for raising and paying the sum of 2000/. when the same shall become due, but his lordship declared that the limitation over of the said sum of 2000/. to the said Mary Roberts by the will, is void, and as to the sum of lOOO/. residue of the said sum of 3000/. mentioned in the will, his Lordship declared that the appcjiniment thereof by the said will for satisfaction of a debt due from him by covenant contained in his marriaoe settle- ment, was void, and that defendant Elizabeth Mary is intitled to liavesatisfliction for the sum of lOOO/. with interest at four per cent* from the death of her father as a special creditor." And the ne- cessary directions,were given by the decree accordingly. No. xm. Newport V. Savage. Michaelmas Term 1736. (a). A HAD a power by will to jointure any wife by hmiting, &c. to and for her use, or in trust for her in lieu of her jointure, or part ot her jointure, all or any part of the estate of which he was te- nant for life. A reciting his power, settles in trust for his wife for her jointure the land contained in the power for ninehj-nine years if she should so long live. It was decreed by the Chancelt- lor, that the power was well executed, and he said, that though in strictness of law this would not have been a good execution of the power, yet a court of equity ought to regard the substance of things. When all parties are mere volunteers^ they must be (a) yUe supra, p 36S. 2 o 3 bouad •3G4 APrEWDrx, bound by the law ; yet where they are purchaaers for a valuable* consideration, and the execution is defective, tlie court will supi>K' it, and it docs no injury, for it carries it no further than the person himself might have done : and even in casps of purchasers, the court will in favour of one supply non execution of powers, and the reason of their not doing it generally, is because it does not appear that the intention of the party was to carry the power into execution. It was objected, that this was such an estate that this is no bar of dower, but the power is not to give an estate in bar of dower ; but A was left at large to make a provision for his wife. Besides, in the settlement made on her, it is generally said to be in bar of her dower, and therefore as it will be an equitable exe- cution of the power, so it will be an equitable bar of dower. Upon searching the register's book (a), I find that the power was " for Walter when he should have any estate in possession in the premises for his life by virtue of the limitations aforesaid, by any deed, to assign, limit, or appoint to, or for the use of, or in trust for any woman or women that should be his w ife for her life in lien of jointure, all or any part of the premises to take effect from his decease." He limited a term to trustees for 99 years in trust for his wife. The bill was to have the jointure confirmed, and to stay proceedings at law by the remainder-man. The de- fendant stated a trial at nisi priuSy and that a case was reserved for the King's Bench, and he prayed for liberty to proceed in the cause. It was decreed that the plaintiff should be quieted in the esiate comprised in the jointure deed during so much of the term of ninety-nine years as she should live, and the defendant was to pay unto the plaintiffs, their costs of the suit, and the injunction formerly granted in this cause for stay of the defendant's proceed- ings at law against the plaintiffs w as to be continued. (a) Lib. Reg. l/CS, fol. 33- Ni o » APPENDIX. 665 No, XIV. ,£arl of Cardigan v. Montagu. Reg. Lib. A. 1754?, fol. 406 («)• ITiis case arose upon a question of election. It appeared that the late Duke of Montagu under a power contained in his marriage settlement, executed leases to the defendant, Edward Montagu, who executed declarations of trust, declaring such leases to be made in trust for the Duke ; and the defendants, prayed an enquiry as to the quantum of the rent, &c. before they were put to their election, and hoped that the court would thereupon, first determine the validity or invalidity of such leases. Whereupon it was referred to Master Montagu, to look into the several leases which were made by the Duke, to Edward Montagu of the settled estate which were then subsisting, and to enquire what powers weie vested in the Duke for leasing the estates, and lo state his opinion thereon. The master by his report, stated that he had enquired what powers were vested in the Duke, and that the only power which was vested in him,, was contained in a settlement of Jan. 1704 ; in the words following. *' Provided also, that it shall be lawful for the said Earl Montagu, and John the late Duke, as they should be in possession during their lives respectively by inden- ture, under his, or their respective hand or hands, and seal or peal^, attested ))y two or more credible witnesses, to make any lease or leases of all those iron works and furnaces, in the City of Southampton, and of all other, the lands, tenements, woods, -hereditaments, rights, privileges, and other things, mentioned in, and agreed to be demised by the Earl, by an indenture bearing date the 29th Dec. 1701, and certain deeds therein recited for such term and terms, and under such rents, covenants and agree- ments as are therein agreed on, or to any person or persons, (a) Pide supra, p. 4;6, 488, 501, 5l3, 5l4, 515, 51C), 520, 521, 530, 531, 532. 2 o 3 from S6d APPENDIX. from time to time for any term or number oF y.cars, absolute not exceeding thirty-one years, or for any number of years de- terminable on one, two or three lives in possession or reversion, or by way of fulure interest, so as there be not in being at one and the same time, any lease or leases for vears, al)solute for above thirty-one years in the whole, and so as all such leases, determinable on life or lives, be not to continue longer than for three lives, and so as upon every such lease, there be reserved such rents or payments, or more as by the said indentures therein before referred to, was mentioned and agreed to be reserved ; and also by any indenture in like manner to be made and attested, to make any lease or leases of any of the said messuages, in the county of Aliddlesex, for the encouragement of rebiiilding the same, for any term or terms not exceeding sixty-one years from the making thereof, at and under the like respective rents as were paid for the same on the first building thereof, or more ; and also bv anv indenture in like manner, to be made and attested, to make any lease or leases of all or any other part or parcel parts, or parcels of the same premises before mentioned, other than the said ca- pital messuage called Ditlon-house, and the orchards, gardens, vards and lands limited to the use of the said Lady M.iry Churchill, and also other than the aforesaid mansion-house called lioughtonbouse, with the appurtenances thereof, unto any person or persons for the term of twenty-one years, or for anv term or number of vears not exceedino; twenty-one years, or for ativ term or number of vears determinable upon the death of one, tv»'o or ihree lives in possession, or by way of future interest of such of the said premises as have been usually demised for one, two or three life or lives, or for years determinable upon the death of one, two or three person or persons, so, as such estates iiranted in possession, and by way of future interest absolnte, be not made to- continue longer than for twenty-one years, and so, as such terms for years granted, for longer time than iwentv-one years, bt all made determinable upon thedea.thsof one two or three persons at the most, and so as upon all such leases, made of such pait ot the said premises as have been usually let for three lives, or tor any term of years determinable upon one, two or three life or live* APPENDIX, 567 lives in possession or by way of future interest as aforesaid, there be reserved to continue due and payable yearly, during such leases, the ancient, usual and accustomed, rents, loons, heriots, and ser-vices usually paid fur the same or more, and so as by and upon all such leases, to be made for twenty-one years or any less term of years absolute, not usually let for life or lives, or for years determinable on lives as aforesaid, there be reserved to continue due and payable yearly, durinjj the continuance of such leases, the utmost and best improved yearly rent or rents, which at the time of making thereof can or may be reasonably gotten with- out fine or other income for the same, and so as in every such lease or leases which sh:ill be made by virtue of any of the powers aforesaid, there be contained a condition of re-entry for non-payment of the said rent or rents thereby to be reserved, and *o as such lease or leases be made without impeachment of waste, by express words to be therein contained, and so as the lessee or lessees to whom such lease or leases be made, do execute counter- parts thereof." (l) And the master found twenty-four leases respectively num- bered from one to twenty-four, both inclusive, to have been all the leases granted by the Duke under the power, and he stated that he had proceeded to look into them. And he found that the first three of such leases, severally numbered ], 2 and 3, v.ere each of them made for the absolute term of twenty-one years commencing at Lady Day 1749, and that .all the other twenty-one leases were respectively maJe for the term of ninety- nine years, commencing at Lady Day 1749, if the plaintiffs, Mary Countess of Cardigan, her eldest son, and the Duchess Dowager of INLanchcster or any of them should so long live, and as to the lease No. 1, whereby the mansir^^, .,ouse called Mon- tagu-house, &.C. were demised to Edward Montagu for twenty- one years, absolutely at the yearly rent of 3O0Z. payable half- yearly at Michaelmas and Lady Day unto the testator, the late Duke, and the person or persons who for the time being, should be seised of the premises in remainder after him, with a proviso therein contained, that if the Duke should at any time during his life, and the continuance of such lease, pay or tender, or cause 204 to sds APlT.NfJljr. to be paid, or tendered to the said Edward ■\Iontasiu his executor? ' administrators, or assigns in the dining hall of Gray'^-Inn, l.v. then the lease and all clauses, he. therein contained should ai)- polutely determine, and the like proviso or power being inserted in every one of the said tweiUy-four kases, and no other ohiection having been made before the said master to the said lease, No. 1. but what arose from such proviso, which objection had Ixen made to every one of the said twenty-four leases, the master con- ceived that tKo lease No. 1. notuithstanding such objection was^ a valid lease, and warranted by the said power of leasing {b). (2) But as to the said lease (No. t3j whereby, not only the ho- nour of Gloucester but likewise sixteen several manors in Nor- thampton, and more particularly the manor of Boughton, and a great walk, and Boughton Park with the Deer therein, together with other lands in Northampton, and also the manor of Beau- lieu in Southampton were dcmi-ed to Kdward Montagu for the like term of twenty-one years absolute, at the yearly rent of 600/. payable half-yearly as aforesaid, the said master did con- ceive from the general, extensive, casual and uncertain natures, and values of the greater part, at least of the premises, and th,e great difficulty if not utter impossibility arising from thence of forming any judgment, wljCthcr the rent thereby reserved was the utmost and best improved yearly rent which at the tinie of niakina: such lease could or might have been reasonably gotten for all the pj^ises, and the rather as there was no exception contained ihcf^'in of Boughton house, he. which were exjiressly excepted out of the said power of leasing ; for the said reasons he did conceive that the lease No. 2, was not a valid lease nor warranted by the p^ - (c). (3) And as to tiif ^iiid lease No. 3, whereby the manor of Ditton and Ditton Park, together with a farm called Hams and ten acres of land were demised to Edward Montagu for the like term of twenty-one years at the yearly rent of ^goL pay- iible as aforesaid, there being no exception contained in guch lease of Ditton-house, 8cc. limi'fcd by the marriage settle- /h) This was acquiesceci in. (c) This was acquiesced in. ment APPENDIX. 5f9 ment to the use of Lady Mary Churchill for life, which, it was admitted before the said master, were part of the nianor of Ditton, and were expressly excepted out of the power of leasing, he did therefore conceive the said lease, No. 3, not to be a valid lease, nor warranted by the power (aj . (4) And as to the lease No. 4, whereby the iron works in the county of Southampton, and also two corn mills, and the land thereto, with other lands, were demised to Edward Montagu for the term of 99 years, determinable on the lives of three several persons therein named, which said iron v^'orks and furnaces, and other premises demised, did appear to be a part only of the premises comprised in the indenture of December 1701, referraJ to in the said power of leasing, and which same part was, by the same indenture, agreed to be separately and distinctly demised, although upon looking into such new lease, No. 4, and comparing the same with the said indenture, and particularly with the articles of agreement therein recited, it did appear that the very same pre- mises were separately and distinctly demised by the said new lease. No 4, and that such and the same rents and payments were thereby reserved as by the said indenture, and the other indenturLS and articles therein recited vv'cre mentioned, and agreed to be reserved, yet the said master found tlrat in the said articles there was con- tained not only a covenant on the part of the lessee to maintain, keep, and leave the said premises in sufficient repair, but that there were also contained therein several other covenants on the part of the lessee with regard to tlie time or manner of cutting or felling the several coppices and underwoods, thereby agreed to be demised, the not putting any stock or cattle into such coppice and the like, all in their nature tending to the preservation, good management and improvement of the said preijiises, and that no such covenat'ts on the parr ui the lessee were, contained in the said new lease. No. 4, and as by the said power of leasing it seemed u» be partit-.larly intended that all leases to be made of the.said irov; works nod furnaces, and other the premises mentioned in. the aforesaid inciencure, or by any of the deeds therein recited (c) 1 his was acquiesced in. ■ should ^70 ArpEXDix. should be made, nnt only under such rents and payment?, but likewise under such covenants and agreenicnis as were therein particularly agreed on, and the aforesaid several covenants on the part of the lessee, being v^holly omitted in the said new lease, No. 4, for that reason the said juiister conceived such new lease not to be a valid lease, nor warrasited by the power (/). (j) And as to the lease No, 5, whertby Palace farm, and other lands in Bewley were demised to Edward Montasu for the like term of ninety-nine years det'=rniinable on the same lives, amongst ^vhicli premises so demised were contained other part of tiie pre- mises comprised in the said indentu'"eof the 29th December IJO!, ?.ud thereby also agreed to be separately and distinctly demised, nnd although upon looking into such lease, Ko. 5, and compar- ing the same wiih the said indenture of the 29th December 1701, the same rents and pavments did appear to be reserved by the said lease No. 5, as by the said indenture of the C9lh December 170 1, and the indentures, &c. therein recited was mentioned and agreed to be reserved in respect of such part of the said premise* as were comprised in tlie indenture of the C9th December I7OI, yet it appearing that such lea^e, No. 5, did also contain some other lands and premises not comprised in the said indenture of the 2pth December 170I, and particularly certain lands tiierein mentioned, for that reason the said master did conceive that the said lea>e, No. 5, was not a valid lease, nor warranted by tlie power (c). (6) And as to the five several leases following, viz. No. 6, No. 7, No.S, No. 9, and No. lO, whereby certain messuages, &c. were severally demised unto the said Edward Montagu for the like term of ninety-nine years, determinable on the same three ^ lives. It having been objected before the said master that the several firms and premises so as aforesaid, separately dv:mi*»ed bv tlie said five several lea^vc^, had not been usually demised for one, twn, or three lives, or lor years determinai)le upon the death of one^ tv-.o, or three person or persons, and no old leases, nor any ^ other evidence having been laid before him to shew that such (i) Tl>if v.a? acqulesceJ in (r) This \^'as acquiesced in. several j? APPENDIX, 571 several farms and premises had been usually so demised ; the said master did f.)r tliat reason conceive, that none of the said five leases numbered 6, 7, 8, 9, and 10 did appear to be valid leases, or to be warranted by the power (c?). (7) But as to the five several other new leases following, viz. No. 1 1, No. 12, No. 13, No. 14, and No. l5, whereby the messuages, 8cc. therein mentioned were severally demised to Edward Mon- tagu for the like term of ninety-nine years, determinable upon the same three lives, to maintain and support which said five new leases, five several old leases had been produced before the said master, by which it did appear that the several messuages. Sec. so as aforesaid, separately demised by the said five new leases, were in like manner separately demised by the said five old leases, but upon looking into such five old leases, and comparing the same with the five new leases, he found that in each of the said five old leases, or counterparts, and also in each of the said five new leases, there was contained a covenant on the part of the lessee, to bear, ]>ay, and discharge all taxes^ rates, duties, and impositions whatsoever; and that in all of the said five old hases, tbere was also contained a covenant on the part of the lessee to maintain, keep, and leave the demised pre- mises in sufficient repair ; and that in some of the said five old leases or counterparts, there were likewise contained covenant* on the parts of the lessees to spend and lav upon the demised pre- mises, all the dung, manure, or compost thence arising; and also not to demise, alien, or assign any part of the said demised pre- mises without the licence in writing of the lessor, his heirs, or assigns ; but that no such covenants as last mentioned were contained in any of the said five new leases : however, it appear- incv that the same several and respective, ancient, usual, and ac- customed rents, boons, and services which had been usually paid fr^r, and in respect of the several messuages and premises sepa- rately demised by the said five new leases were severally reserved by such five new leases, and thereby made to continue due and payable yearly during the continuance of such leases, and no olhci {(i) This was acquiesced in. particular 5Y2f APPENDIX. particular objection having been made to any of t! c said five nfw leaser but what arose from the omission of such several cove- nants as were before mentioned, the said master did conceive, that notwithstanding such objection, the aforesaid five new leases num- bcreJ I!, 11?, 13, 14-, and 15, v/ere each of them valid and effec- tual leases warranied by the power (c). (8) But a? to the remaining nine leases, viz. No. 16, 17, IS, 19, 20, 21, 22, 2S, and 21, wlicn by certain farms, 8cc. were re- spectively demised to Edward Montagu for the like term of ninety-nine years, determinable on the same three lives, to main- tain and support which nine new leases, nine several old leases or counterparts had been produced before the said masttr, by which it did appear that the several messuages and premises so as afore- said separately demised by the said nine new leasej;, were in like manner separately demised in and by the said nine old leases, but upon looking into such nine old leases, and comparing the same with the nine new leases, the said master found, that in every one of the said nine old leases, there were contained covenants on the part of the lessees to bear, pay, and discharge all taxes, rates, duties, and impositions whatsoever ; and also to maintain, and keep, and leave the demised premises in sufficient repair, and that in several of the said nine old leases, there were Iike\\ise contained cove- nants on. the parts of the lessees to spend or lay upon the said demised premises, all the dung, manure, or compost thence aris- ing, and also not to demise, alien, or assign any part of the said demised premises without the licence in writing of the lessor, his heirs or assigns, and more particularly in the old lease, bearing date the 2oth day of April 16G4, produced before him to maintain and support the new lease. No. 19, there was contained a cove- nant on the tenant's part to grind at the mill of the said lessor, i-ituate in Bewley, all the corn and grain which they should spend in and upon the said demised premises, and that in another old lease bearing date the 20tb day of April 1688, produced before the (t) This was not acquiesced in, of the omissiorvof the covenant and the master's opinion in this to repair, rc^-^pect was overruled by reason said APPENDIX'. 57S said ma?ter to maintain and support the new lease, No. 20, there was contained a like covenant on the tenant's part to grind all his corn at the lessor's mill aforesaid, all which covenants on the parts of the said lessees, as they did in their nature tend to the preser- vation, management, and improvement of the premises demised were for that reason for the benefit, advantage, and security, not only of the immediate lessors, but likewise of all persons claim- ing after them ; but he found that neither the said covenant to bear, pay, and discharge all taxes, &c. nor any. of the several other covenants liicrein before particularly mentioned, were con- tained in any of the said nine new leases, and that the like covenant for grinding corn in the said mill was not contained in either of the said two new leases respectively numbered I9, 20; and as the said pevcra], ancient, usual, ai)d accustomed rents which were usually paid under the said nine old leases, did by means of the said covenant, for the tenants paying and dischargrng all rates and taxes, become clear and nett rents, freed from any deduction whatsoever, and for want of such covenants, the several rents reserved by the said nine new leases^ must, he conceived, be subject and liable to a deduction thereout, upon account not only of the land-tax, but likewise of other rates and taxes which tended manifestly to the prejudice of the persons who, since the decease of the Duke, had been, or might thereafter be seised, of the demised premises. Under those circumstances, the master craved leave, to submit to the judgment of the court how far the several rents which appeared to be nominally reserved by the said nine nev/ leases, for the want of such covenants, for the tenants paying and discharging all rates and taxes, could, or ought to be deemed in substance and effect the same several ancient rents as were usually paid by virtue of the said nine old leases, whicli seemed to be expressly required by the said power of leasing, and consequently whether the said nine new leases were valid leases, and warranted by the power or not, and more particularly whether the said two new leases respectively numbered 19 and 20 \\ere not invalid for want of the like covenants on the tenants part for grinding their corn at the lessor's mill, as were contained in the before mentioned tv.'© S74 APPENDIX. t two old leases, the same appearing to be in its nature a boon or service {k). An exception was taken by the defendants to the report, for that the said master had by his report ccriilied, that he conceived that the five several leases therein mentioned by the numbers 1 1, 12, 13, 14, and 15 were valid leases, and warranted by the power, whereas the defendants insisted that he ought to have certified that the said five leases were not valid leases. His Lordship held the said defendants said exception to be good and sufficient, and therefore ordered that the same should stand, and be allowed. According to Lord Mansfield's note of this case, the Chancellor took some days to consider ; and declared he was clear upon the argument, but took time, because there ■was no case in point. The more he thought of it, the more he was convinced. The principle he rested upon was, that the estate must come to the remainder-man in as leneficial a manner as ancient owners held it (IJ, Upon the special matter of the said report relating to the several new leases from No. 16 to No. 24, inclusive, his Lordship de- clared, that all the said leases were not warranted by the power, and therefore void. (k) The nine leases were held to be invalid. (/) 1 Burr. 132. INDEX. A, X'CEPTx\>^CE. See Feoffment. ^Reny- rti^t* ACCIDENT. See DEFECxivt Execution, ADVANCEMENT, whether it operate to give the child's share in default of appointment to (he parent or to the other objects, qu. 407' See Illusory Appcintment. .AGREEMENT, before marriage, that the wife may appoint her own estate, valid - - - - - 13S See Defective Execution. ANSWER IN CHANCERY, may anipunt in equity to the execution of a power - 28S APPENDANT, POWER, defined - - - - how busprnded - - - how cxtingTiished _ - ». by opeiution of law how merged _ - » may be released _ - - to arise on a future event may be defeasanced whether it can be released in part, qn. power to a tenant for life to appoint the estate to his children, whether it is appendant - - ' - 7i See Bargain and Sale. Covenant to stand seised. Extinguishment. Fine. Ftoi-F- MRNT. MiiKofcK. Su.riiNSlON. APP0INTE2, " 49, ,60 - 54 53, , 66; . ;o - 6i - 78 - 66 - 6(j - 67 576 I N D E 3t. # 155, 255 - 173 - 179 - '225 - 227 APPOINTEE, takes from what time - - - - 256 death of appointee under will does not defeat a charge on the estate appointed to hira - - - 257 takes the whole sum and any loss must fall on the residue 26O takes tlie fund subject to his debts - - - 2(>l APPOINTMENT, how it operates - - how it may be made where it is to a charity by a general disposition but there must be a reference to the fund how it operates when blended with words of conveyance 236, 241 takes the part appointed intirely out of the settlement - 26O See Deefctive ExKCUTiON. Excessive Ex- ecution. Execution of Powers. Limi- tations. Will. Witnesses. APPURTENANT, POWER, . See Appendant. ASSIGNS, who are under a power to a man and his assigns ATTAINDER. See Treason. ATTEST-iTION. See Signing. Witnesses. ATTORNEY, who may be - - donee of a power cannot appoint an attorney unless the deed is prepared, semble ortlie power is tantamount to an ownership ATTORNEY, LETTER OF, how to be executed AUTHORITY, what are common law authorjlif s where it survives - - - See Devise BANKRUPTCY, where it destroys a power where it transfers a power Lo the commissioners BARGAIN AND SALE, defined - conveyance by, don't destroy power where 146 • 132, I3f> - 144 - 14G - 146 . 17a 1, 118, 169' . 141,208 61 1.54 4 - 62 general INDEX, 577 Pages BARGAIN AND SALE— fConlinuedJ general power to lease cannot be reser\'ed by it - 1 1 1 contra of a general power of revocation - - 113 in execution of a power need not be enrolled unless required by the power . _ . . - 1/4 BARON, AND FEME, may appoint to each other under powers - - 26l See Defective Execution. Feme Covekt. Jointuring, Power of. BOONS, the construction of the word - . - - 532 BROTHER. See Defective Execution! . CANCELLATION, destroys a will executed under a power - - 256 does not destroy estates created by deed - - 322 CESTUIQUE TR l ST, of a lenu whether he can assign the legal estate under the statute of Richard - - - - - l2 CHARGE, the extent of a povve- to, - - . - - 3g3 power to, enables a charge of interest as well as principal ib. See Estates. CHARITY, how an appointment may be execut'^d in favour of a charity 179 CHILDhEN, POWER TO .-^.PPOIVT TO •whether a power to a tenant for life to appoint to his children can be bnrred - - - - yi child'on changing their chaiacter as youngest child becoming eldest, an appointment lO them is avoided - - 332 general power restrained to children, where - - 3/6 ceases vviiere there is only one object, wnere " - 3/8 does not embrace grand children, - ^ - - 412 but they may be appointed to with the child's consenc - - . 4ig^ 420 child in ventre sa mere within a power to appoint to children living at the parent's deadi _ _ _ 420 embraces what children - _ _ - 420 an eldest child considered a younger, and a younger an elder, where - - - - 421 2 P CHILDREN ^T8 I N D E 5:0 CHILDREN, POWER TO APPOINT TO— (^ConlinuedJ See Advancement. Defectivu EiECUXioN. Exclusive Appointment. Execution of Powers. Exixutors. Father and Child. Illusory Appointment. CIRCUMSTANCES. See Solemkities. COHABITATION, where it is a good consideration - - - B2'J, COLLATERAL POWERS. See Gkoss, Powers im. COMMISSIONERS OF BANKRUPTS. See Bankruptcy. CONCURRENT LEASES, cannot be granted under the usual power of leasing, sembl. 501 but where the first lease is not binding on the remainder man qu. . - - . 508 CONDITION, cannot be annexed to an estate created under a power wiih- t)Ut an express authority - - - >- 427 See QuALiriCATioN. CONDITIONAL POWER, cannot be «xecuted, unless the event arise - - 2 11 See Sale and Exchanok. CONSENT, made requisite to the execution of a power, muit be ob- tained - - . . . 17s death of the person to consent destroys the power - 208 •c the death of ona of several persons - ib. unless the survivor is authorised to consent - ib. what amounts to a consent . . _ 209 the power to consent cannot be delegated - • 310 the discretion of a trustee to consent cannot be controlled ib. one consent dispenses with the condition - - 211 See Fbme Covert. CONSIDERATION, where requisite - • . - 4 bad in law - ... - 322 what is a sufficient, to avoid a power of revocation under the statute of Elizabeth . _ . . 341 See Cohabitation. Defsctivf. Execution. DowEa. Marhiaoe. P«rjuky. CONSTRUG- INDEX. 579 If Pages CONSTRUCTION OF TOWERS - - - 374. CONTEMPT. See Crown. CONTRACT, SeeEauiTY. Defective Execution. Futuro, Lease in COUNTERPART, of a deed creating a power not requisite - - 111 memorandum of its executiou should be indorsed on the lease 52^ COUSIN. See Defective Execution. COVENANT, to sell, revokes in equity, a will under a power - 256 against persons claiming under the donee of a power extends to whom - - - - 259 running wiUi the land in the hands of a person taking in de- fault of appointment, ceases upon execution of the power 263 to execute a power, equity will enforce it, where - 265 what covenants must be contained in leases under powers, v,here the power is silent - - _ 329 where usual. Sec. covenants are required - 530 the introduction of an improper covenant is as iatal as the omission of a proper covenant - 532 and the lease cannot be supported because the lessee lias dor.e Vvhat he ought to have agreed to do - 532 the covenants required must be expressly inserted 533 See Sale and Exchange. Trustees, COVENANT TO STAND SEISED, defined - - - - - 5 conveyance by, don't destroy power, where - - 62 / general power to lease cannot be reserved by it - 111 contra of a general power of revocation - - 113 CREDITORS, intiileu to a fund app;)inted under a general power in preference to an appointee - - _ 263 but a puicliaser from the appoiiilee prevails over them - - < _ 265 CRO.VN, THE may commission oihtrs to execute a power forfeited bv treason - - - - - 152 may exiend lands over which a crown debtor has a power of revocation - - - - 153 2 P 2 CROWN, 580 I N D E X. - 153 423 181 184 igs 2.09 iplOWN, THE— (Continued) may seize the lands of a person commiuing a contempt against the prerogative See Treason. CYPRES. See Excessive Execution. DAUGHTER, eldest daughter considered a younger child when unpro- vided for _ - _ _ See Execution of Powers. DEBTS. See Appointee. DEBTOR, CROWN. See Crown. DEED, required, the power cannot be executed by will in form, may be a will in substance required, must be executed as a proper deed the cllect of a deed executed under a power See Consideration. Drunkenness. Ex- cessive Execution. Indorsement. DEFAULT OF APPOINTMENT, limitations in, are vested, subject to be divested - 129 the construction of gifts in, - - 434, 465 where a fund is badly appointed it goes as in default of appointment - - - - 4^1 See Advancement. Devise. Dower. Re- lations. DEFEASANCE. future powers may be defeasanced - - 66 DEFECTIVE EXECUTION, by one instrument not made good by another supplying the defect but defective itself in other respects - 103 Equity relieves against a defective execution in favour of a purchaser . _ _ 275 mortgagee - - - 276 lessee - - - ib. creditor - - - ib. wife - - - ib. husband - - ■• ib, legitimate child - - - - ib. niairiage consideration - - ib. DEFECTIVE I n'd e X. 5Si Pages DEFECTIVE EXECUTlOl^—fContinuedJ not in favour of a natural child - - - 276 grandchild - - - ib. brother - - - ib- sister - - - ib. nephew - - - ib, cousin - - - ib. volunteer - - - ib. a defective execution in favour of a stronger cannot be supplied s J as to give the fund to creditors^ semb. 277 person applying for relief must- have a preferable equity - - . 27S, 285 whether he must be unprovided for - - 280 a defect may be supplied although all the objects are children, semb. - - - 283 Equity relieves against a defective execution where the intention appears by covenant - - 28j request by will - 28(5 written contract - ib. promise by letters - ib. recital in a deed - ib answer in chancery - ib. covenant in original deed ib. but there must be a reference to the fund - 287 execution of power of jointuring not r.ided unless (he party come into possess on - - 287 v>'hether, where the contract is by parol qu. - 289 remainder-man may claim Ihe execution of a power 290 Equity relieves against a defective execulion although by deed instead of will - - 291 two witnesses instead of three - ib. a Seal be wanting - . ib. a will of real estate - - 292 the power be to lease^, where and where not 295 So Equity will relieve in cases of fraud - - - . 302 surprise - - ^ ib. accident - . - ib. disability - - • ib. 2P3 DEFECTIVE 583 INDEX. 313 31.'} 3l5 DEFECTIVE EXECUTION— rConiinuedJ election satisfaction but non execiilion is ia general never aided unless the power is in nature of a trust where a fund is defectively executed whether \\holly or in part it goes as in default of appointment - - 421 See Election. Satisiaction. DELEGATION, powers cannot be delegated - - - l44, 210 unless by express authority - - - 1 i6 the effect of a void delegation en estates limited in default of appointment - - - - 147, 4f>7 See Attohney. DELIVERY, of an instrument executing a power where unnecessary lyo DESCENT, appointee under a will, takes by descent where - 257 See Election. Illusory x'\ppointmext. DEVISE, whether a devise to one to uses, operates under the statute 1 18 of powers, without any seisin to serve them not within the statute - ■ - - - laf) under a void power, the testator's interest sliall support tlie disposition - - - - - 23 ' See LiMtTATioxb. Texants in Common. DISABILITY. See Defectivj Execution. DISCRETION. See Father AND Child. TRXisirK. DISTRIBUTION, POWER OF. ceases where there is only one object - - 38 1 DISTRIBUTIONS, STATUTE OF. See Relat . ov-. DOWER, limitation to bar dower, the objects of it - - 1 6'u whether it may be created under the old power of ^.ale 3/0 •whether a purchaser can rcqaiie the concurrence of tlie trustee to bar dower under the usual limitation - l63 attached upon a vested fee in dt fault of appointment, whether it can be defeated by an appointment - - 2( > release of, how far a valuable consideration - - 343 DRUNK- INDEX. 583" Pages DRUNKENNESS, mny avoid a deed, where . - - 323 ELDER CHILD, deemed a younger child, where - - 423^ ELECTION, the principle of it - - - 305 inforced against an heir taking by descent - 306 whether where the will is revoked qa. ' - 306 there oiust be two funds - - 308 the intention cannot be collected dehors - 308 but parol evidence is admitted, where - ib. uot inforced where the donor has not ability to devise - 30^ or the will being of real estate is not well executed ib. at what time the election is compelled - 312 where the party refuses the gift it goes to the disappointed devisees - - \, 313 the effect of an election - - 813 >:NROLiV[ENT, if required, the appointment must be enrolled - 17S and in the donee's lifetime - - 205 See Bargain and Sale, EQUITY, will restrain trustees from executing a contract for sale under a power, where - . - 279 will rectify a mistake in a settlement - 294 See Ckeditors. Defective Execution. Estates- Fraud. Purchasers. ESTATE IN FEE, where it may be created under a power - 355 limitation as A shall appoint generally, if created by will, a fee - - - 94 See Limitations. ESTATE TAIL, * where it may be created under a power - 369 what device under a power gives an estate tail - 384, 444 ESTATE FOR LIFE, what limitation in a deed under a power amounts to an estate for life only • - 383 2 p 4 ESTATES, 5S4 INDEX. Fages ESTATES, •what may be crealed under powers in ft:e, where - - 355, 369 a power to charge will not enab'.e tlie limitation of a fee as a secniity « _ - 359 whether an unlimited power to charge will in equity authorise a gift of the fee, qu. - 360 power to give the estates enables in equity a gift to sell and pay the money to the objects - 363 in what cases a rent charge may be limited - S63 where the rent is well charged - 366 power to appoint an estate for lives does not at law au- thorise an appointment lor years determinable on lives - - 366 in what cases a less or different interest can be granted than that mentioned in the power - 369 estate tail 7 - 3(59 uses to bar dower - - 370 chattel interests - - 371 ■where a term absolute may be created - 3/2 where a qualified estate cannot be granted - 378 estate in reversion under a power to create an estate in possession is void - - 374- what interests may be created under a power to appoint to children - - 424 to a daughter for her separate use - 425 whether to the husband of a daughter during their joint lives - - 42.'; what conditions may be annexed to the execution of a power - - - 426 the effect of an excessive execution 443 See Defective ExKcurioN. Excessive Execution. Limitations. Power. EVIDENCE. See Parol Evidence. EXCESSIVE EXECUTION, 1. the eflectof it where there is an excess in the objects 443 under an appointment to a child capab'e, for life, re- mainder to his children, incapable, in tail as pur- chasers tlie parent shall take an estate tail - 444 EXCESSIVE INDEX. 585 Paget EXCESSIVE EXECUTION, (Continued) but not unless that construction will meet the testator's intention - - 448 and the doctrine is confined to wills 450 and to real estate - - 449 where void remainders are given and the doctrine of cypres cannot be applied the remainders only are void - - - 450 the effect of an indefinite gft to persons, some objects others not - - - 451 gift embracing objects not within the line of perpetuity void as to all - - - 453 gift to persons some objects others not equally or in gross sums t;ood pro tanto - - 455 Toid limitation prevents a good limitation over from taking effect - - 455 unless it be given on a contingency with a double aspect and the limitation to the strangers never arise - - - 456 or a void power be limited to appoint the fund amongst the objects and it is given to them in default ot appointment - - 457 ' 2. the effect of it where there is an excess in the quantity ofinter-est . _ . 457 good pro tanto where the excels is distinguishable 458 lease exceeding the term authorised good pro tanto in equity void at law in toto - - 45S but where a distinct limitation is added that only will be void ... 45^ unless the limitations although several make but one estate in law - - 450 money charged exeeeding the sum authorised good in equity pro tanto - - - 460 3. the effect of it where conditions are annexed not autho- rised by the power - - - 463 the condition only is void - - 463 valid appointments will be sustained although con- founded in the same instruments with other objects 464 See Jointuring, Power OF. Lease, Power TO. EXCHANGE 5S6 INDEX. fajp» EXCHANGE. See Partition. Sale and Exchange. EXCLUSIVE APPOINTMENT, where authorised - - - 3g^ where not authorised _ , . 3Qg See Illusohy Appointment. EXECUTION OF POWERS. how to be executed so as to vest the legal cstaie - 155 ■whether the legal estate will vest in releases to uses by a direction to them to convey • . - 157 how to be executed where a man has both a power and .in interest - - - . ]5[) may be executeu by a note in writing where no particular instrument is required - - l/^ all the circumstances required must be attended to - l/ft' power to tenant for life to appoint by will, how he may sell the estate - - - - 18.5 \i'here a power must be executed by will, a:;d where by deed - - - 180—187 power of revocation and appointment may be executed by the same deed - - - - 1/1 power may be executed by several instruments [- - ig'l power of revocation not executed by a reconveyance to the settlor - 20.5 power of appointment or revocation executed by a general . disposition where the donre has no estate - - 225 but there must be a reference to the fund - 22/ 'what amounts to an execution where a man has both a power and an interest; - - - - 231 power may be executed conditionally - - 243 the effect of the execution - - - 2.o5 overreaches all the estates in the settlement 268 how estates created under difl'erent powers take effect - 2"C) where void at law - - - - .321 in equity - - - 326 ^ See Attorney, Lett£r OF. Barcaxm and Sale. Conditions. Defective Execution. Estates. Excessive Execution. Fine. Faavo. Lease AND Release. Lease, Power to. R,evoca- TioN, Power of. Solemniti*s. Tender. Time. Will. EXECUTORS, •INDEX. 587 ' Pages. EXECUTORS, take a power lo sell where - ^ - 99 — 103 if any lefiise the trust, the others may sell - - 140 a power to several survis'es, where - - 140 may be special occupants of corporeal hereditaments, sembl. - - - - l6l n contra of incorporeal hereditaments - - ib. where they take as designaied distinct from their testator 256 of an object of a p^ vver, cannot be appointed to - 41Q See i .MITATIONS, EXTINGUISHMENT, of powers appendant - - - 58, 66 in gross - - -62, 66 the extent of the word . _ - 432 FATHER AND CHILD. what is a fraudulent appointment to a child under an exclu- sive power - - - - 33© a discretionary power to a parent not controlled, unless there b-' fraud - - - - 411 See A.DVANCEMENT. FEME COVERT, is considered a feme sole as to property settled to her separate uss - - - - - 105 what amounts to an unalienable tru^t in her favour 105 — 105 her consent in court to an a!->p'jintmeiit not necessary lOS may execute powers over real estate » - 132 although reserved over her own estate by an agreement upon marriage - - - 135 her will revoked by marriage, where - - 136 her will of personalty must be proved as a will, and also as an appointment - - - - 25S may retain her property against her husband, where be does not perform his contract - - 289,442 See Attokmey. Barok and Feme. DsFECTivt Execution. Execution of Powers. Joik- TuuiNG, Power of. FEOFFMENT, acceptance of, does not destroy a power - - ^7 See Fin 2. FINE, 588 INDEX. Paget, FINE, destroys power relating to the land - - G? is merely void, or operates as a further assuranccj wliere 68 accompanied by a deed, operates as the execution of a power where - _ - - - 68 by tenant for life^ with a power to appoint to his children the effect of it - - - "71 declaration of the use of, gives tl^e legal estate - 124 FRAUD, will enable equity to relieve against a non-execniion 302 what is a fraudulent execution at law - - 322 in equity - - 329 person taking with notice of a prior equitable appointment bound by it - - 332 See Father and Child. Illusory Appoint- ment. Jointuring, Power of. Time. Trustee. FURTHER ASSURANCE. See Fine. FUTURO, LEASE IN, the meaning of the term - - - 495 what is a lease in futuro - . - 4g5 depends for its validity on the time of its execution 4g3 contract to grant a lease in futuro, valid^ if the tenant for life live beyond the period - - 498 See Reversion. GRANDCHILD, is not an object under a power to appoint to childien ' -,412 where a power under general words embraces grand- children - - - 4-J9 an appointment may be made to a grandchild Mith the consent of the child on his marriage - - 420 See Defective Execution. GENERAL POWER, what estates may be created under it where cut down to a particular purpose GROSS, POWERS IN defined ... how saspendcd how extinguished - 350 376^ 465 50 62,66 GROSS INDEX. 589 Pages. GROSS, POWERS IN—fContinuedJ how merged - - - - - 78 may be exercised after the donee has departed with his estate - - - - - 62 may be released - - - - 6(5 to arise on a future event, may be defeasanc^d - -65 whether they can be leleased in part, qu. - - 67 GREAT NEPHEVv'S, not within a power to appoint to nephews - - 428 but may be appointed to on the marriage of the nephew with his consent - - - 4-2S HEIR. See Descent. Election. HERIOTS, need not be reserved under a power requiring the ancient rent - - - - -513 HUSBAND. See Baron and Feme. Feme Covert. ILLUSORY APPOINTMENT, what amounts to an - - - - 403 a share descending- is sufficient - - - 40S where only the last appointment is bad - - 40S may be justified by circumstances - - 403 as advancement upon marriage - - 40g whether the provision must move from the donee ib. or by consent of the parties - - - 410 the fund is distributed equally where the appointment is illu- spry - - - - 410 See Reversion. IMPROVEMENTS. . See Rent. INDORSEMENT, of a power before execution of the deed good - - 1 1 1 INFANT, what powers he can execute - - - 136 INTERLINEATION, of a power good, where - - - - 11 1 INSTRUMENT. See Will. ISSUE, the extent of the word - - - - 354 INTEREST. See Charge. JOINT TENANTS. See Tenants in Common. JOINTURING 590 INDEX. Psgri JOINTURING, POWER OF del'ective execution where aided - - - 287 executed for the husband's own benefit void - - 329 may be repeatedly exercised - - - 435 where it may be made clear of taxes - - 43C at what time the value of the lands is to be taken - 439 ■wife entitled to a remedy against the husband's assets imder Jiis covenant for any deficiency in her jointure - 440 unless the parties meant merely to execute the power and the excess was a mistake I - - ib- the effect of a power to jointure according of the wife'sfortune 41 1 a nominal portion not sufficient - - ib. nor a settlement to th.e separate use of the wife - ib. but a fair settlement of the wife's fortune v. ill be supported - - - ib. the portion must be ascertained in the husband's lifetime - ... 4^2 - 432 54 i7 KIN. NEXT OF, the extent of the words See Relation's. LEASE FOR YEARS, suspends a power appendant - - but not a power in gross - - - See Cestuique Trust. Excessive Execu- tion. Lease, Power to. LEASE, POWER TO, in what instmments it may be reserved lease by tenant for life with a power for a term cerlnin, oper- ates as an execution of the power - - 233,234 but not where tlie irower is badly executed and the 111 effect would be to destroy a valid lease the effect of an excess in the execution of the power the construction of the power acceptance of rent under a void lease will not set it up a lease may be granted in trust for the donee what may be demised under a power to lease lands usually letten by whom tlie lettings must have been bv what instruments - 234 - 45S ' 473 - 475 ■\/ 5 - 477 ib. - 479 - 4::0 LEASE 591 INDEX. -^^^ Paget LE^SE. POWER TO.— (ConiinuedJ under a power to lease at the rent then reserved or at ^^^ the ancient rents, &c. whether any part not formerly let is within the - - 482 power where mines are comprised in the power - - 'ISS what term may be granted - ' ' . * ' general power where the estate is in hand authorises ** . • - 4Q0 only a lease m possession - -^ even where the estate is already in lease if the power is to lease in possession - - 4gi • general power whether it authorises a lease in possession where the estate is already in lease - • ^9^ power to lease not exceeding a given number of years from the time of making, a lease in reversion may be .A - - ' "^93 granied - a lease may be granted wiUi a power of revocation 501 under powers to lease for lives during the life of tiie survivor of the lives - 509 topn^ for all the lives or to all the persons ib. the lives must be concurrent - " 4SS,5lO what rent must be reserved - ■• what conditions and covenants must be observed - - 5^/ where the power is silent - - 9' See Attorney. Concurrent Leases. Coun- terpart. Covenant. Defective Exe- cution. FuTURO. Improvements. Mines. Re-entry. Rent. Reversion. Wast^. LEASE AND RELEASE, a consideration requisite to the lease, not to the release - ^ conveyance by, does not destroy a power in gross - _.^^ 62 in execution of a power, how it operates LEGACIES, , ni • f given under a power out of personalty, and lapsed, fall into ^^^ residue LETTERS, gg promise by, to execute a power equity may relieve ' ^^« IMITATIONS LM INSTRUMENTS CREATING POWERS, ^^ as A, shall appoint remainder to him in fee, ^"^^^J^^jj^^" j^^^g 593 INDEX. LIMITA'^IONS IN INSTRUMENTS CREATING POWERS.— CCo7itinuedJ to A, in fee and as he shall appoint, valid - - 89 as A, shall appoint generally if created by will, a fee - 9'^ to A , for lift; with a power to give the fee to particular objects an estate for life and fee - _ _ g4 so although an express estate for life is not given, senib. 94 so although there is an express estate for life and the power is general, where - - 9^ distinction between a devise of lands to executors to be sold and a devise that executors shall sell the land - 99 whether a devise of lands to be sold by executors \\\\\ pass the fee - - - 101 " unto and to the use" of the same person, the effect of it - - - - 115—118 in a will, to trustees and their heirs gene; ally, will ^ive them the fee, where - . - - 125 power to apoint to issue generally, valid - 127, 354- in default of appointment take eflect in possession where the power is void - - - 1 28 are vested subject to be divested - - 129 as the survivor of two shall appoint cannot be executed by a joint appointment - - - 1-40 to bar dower, the oVjjects of them - - }Q0 to the use of a man's will, the effect of it •• - 182 what is a mere power and what a power in the nature of a trust - - - - - 3.6 .where a gift in default of appointment is implied - 320 power to appoint any part f the lands to one for life, the donee has only to specify the land - - -ItJl limitation in default of appointment may in some instances controu' a gi neral power - - - S/O the effect of limitations over in default of appointment - 4(i5 See Conditional Power. Estates. Exclu- sivitPowtK. Fhme Covert. Mortgage. LIMITATIONS IN INSTRUMENTS EXECUTING POWERS, take effect as if created by the original instrument - 2G0 appointment tp heir at law by will he takes by descent, where - - - - 25/ LIMITATIONS INDEX. 593 Pages Limitations in instruments, executing vow- els— (Continvedj appointment to the heirs of a man taking an estate of freehold under the deed creating the power, the estates coalesce 262 by deed, technical words nre essential - - 383 exception as to words of modification - - 384 by will, technical words are not necessary - - 384 See Appointment. Excessive Execution. Lease. Sale and Exchange. LIVES, LEASE FOR. Sec Lease, Power to. Reveusion. LOSS, must be borne by the residue where a particular sum is autho- rised to be appointed . _ - 26O LUNACY, where it will avoid a deed, - ■ _ 324 MARK. See Signing. MARRIAGE. the procuring it a bad consideration - - 323 is a good consideration for a settlement * - 34'i the extent of it - - . ^ 342 settlement after marriage is voluntary - - 3i4 See Defective Execution. Grandchild. MERGER, power to one remainder to himself in fee docs not merge J'S jiower not merged by the accession of the fee, semb. - 8/ MINES, under a power to lease, requiring rent to be reserved a pro- portion of the produce may be reserved - - 514 lease of unopened mines, void under a power to lease so as the lessee be not dispunishable of waste * - 523 See Lease, Power to. mistake, as to the time at which the interest given under a power ought to arist', corrtct''d in equity - - 46 1 Sc'e EuuiTY. Jointuring, Power of. MORTGAGE, destro\s powers, where - - ' - •■ 5g I)roviso that the mortgagor shall receive the rents till default in payment, the etTect of it _ _ « 104 2 a MORTGAGE, 594 INDEX, Vages MORTGAGE— r6'on/i»7/e(/; ^ partial execution im\y of a power in equity - 222 where it may be made under a power to sell - 392 where it may be made un ler a power after a sale - 392 power to, to what it extends - - - 39'i See Chakge. MORTGAGEE. See Defective Execution. NEPHEWS, power to appoint to, construed in the same manner as a power to appoint to children - - -128 See ChildreNj Power to appoint to. NON-EXECUTION, is not in general, aided - - - 315 unlesss the pow^er is in nature of a trust - 3lG See Defective Execution. Fraud. NOTE IN WRITING. See Execution of Powers. NOTICE, required, must be given - - - 17^ See Fraud. OCCUPANTS. See Executors. PAROL CONU'RACT, where aided in equity - - - - 28y PAROL EVIDENCE. See Election. Relations. Satisfaction. PARTIAL EXECUTIONS, powers may be executed partially - - 221 a mortgage is but a partial execution in equity - 222 unless there is an ulterior disposition - - 223 PARTICULAR POWER, what estates may be^created under it - - 356 PARTITION, where it revokes a will - - - 82 power to make partition does not authorise a sale or excliange _ - - - 38/ power of sale does not authorise a partition - 388 whether a power of exchange do, qu. - - 3 88 but this may be dune circuitously under a power of sale 380 PERJURY, stifling a prosecution for^ a bad consideration - - 322 ^^ PERPETUITY, INDEX. 595 Pages PERPETUI-TY, power having that object, is void - - - 127 what amounts to, in an original instrument - - 346 instruments executed under powers 350 gift under power embracing objects not within the line of perpetuity void as to all . _ - 453 PORTIONS, payment of, suspended by power of revocation - 13 1 POSSESSION, LEASE IN. SeeLvASE, Powek to. POWERS. defined and classed - - - . 4g how created - - - - 92 no solemnities need be required to their execution - 108 in what instruments they may be re erved - j 1 1, 133 in wills, Vv^hether they operate upder the statute - 113,170 what seisin must be raised to serve them _ - 123 for what objects they may be raistd - - 126 may be executed, by whom - . - 132 where they survive - - , 140, 208 cannot be delegated - • - . 144.^ 210 where forfeited - - - 14& by what instruments to be executed where the power is silent - - - - 173 where a particular instrument is required - I8O distinct po.vers in one clause - - - 188 at what time they may be executed - . ojj when executed by a general disposition - - 225 distinction between general and particular powers - 350 where there is only one object of a power of distribution it is at an end - - - . ^/S contra where the power extends to the quantity of estate 380 or the object does not take in default of appointment 38 1 what acts they authorise - _ gg^ See Execution of Powers. Trust. Passim. PREROGATIVE. See Crown. PURCHASER, will prevail over a prior defective appointment - 270 power of revocation not exercised, is void against him - 335 whatever be the form of the power - - 337 2a2 PURCHASER, 595 INDEX. PURCHASE R—rCon/i«z/f(/; unless the power is bona fide restrained to be executed with consent of strangers - - 337 although the power be future - - 338 or be previously to the sale released - 339 what is a sufficient consideration to avoid the power 341 the purchaser must liavc contracted for the real interest 344 not bound to see to the application of his purchase money where the money is to be applied in payment of the donee's debts - - - - - 336 See Creditors. Defective Execution. Dower. Fraud. PURCHASE MONEY. See Purchaser. QUALIFIED ESTATE, where it cannot be granted ... 3/8 RASUllE, where it avoids a deed - - - 321 RECITAL. may operate as the reservation of a power - - 9^ may amount in equity to the execution of a power - 2S(i ■RECONVEYANCE. See Execution of Powers. RECOVERY, how to be suiFered to save the powers of tenant for life 59 where it defeats a power prior to the estate tail - 76 See Fine. RELATIONS, power to appoint to, where it authorises an exclusive ap- pointment - . - - 429 bequest to relations governed by the statute of distributions 429 so to near relations, friends, relations, &c. 430, 432 the effect of a bequest to poor relations - - ib. parol evidence not admissible to explain it . 433 to whom an appointment may be made under a power to ap- point to relations - - - - 131) in what relations the fund vest* in default of appoint- ment . . - - 434 RELEASE, what powers may be released - . 66 SeePuucHASBR. RENl I K D TS X. 597 EENT CHARGE. See Estates. RENT UNDER POWERS OF LEASING, power to lease, rendering such rent as the donee shall think fit, he may lease without rent - - 37'i the acceptance of rent under a void lease will not set it up 4/5 whether the best rent is reserved must be decided by a jury 511 if the best rent is reserved, the tenant agreeing to lay out money in improvements is not material - .512 where from the nature of the property it cannot be as- certained v«rhetber the best rent is reserved the lease is void . - - 512 where the us'-a1 rent is to be fiS^fttYcd. what is the true rent 513 no objection that more is reserved _ - 513 but if the t.-7xes were formerly paid by the tenant, he must still pay them - - _ 514 must be reserved as formerly - - 514 may mean produce as well as money - - 514 the precise sum must be named in the lease, or it must be referred to a standard by which it may be easily ascer- tained - - - - - 5l6 a reservation in the words of the power will be invalid 51/ at what days it should be reserved - - 514,519 reserved for lands within the power, and lands not within the powfcr avoids the entire lease, where, and where not - . . - 520—525 to what persons the rent should be reserved - - 525 -ee Heriots, Lease, Power to. Mines. Re-entky. RE-ENTRY, power of, what should be required in powers of leasing 527 required, how it should be reserved - - 52/ RE;PUBLICATI0N. See Will, RESERVATION. See Rent. RESLOUE. See Lf.gacies. Loss. RESULTING TRUST, where a part of a fund is appointed, there can be no result- ing trust for persona claiming under the settlement - 260 REVERSION, -598 INDEX. REVERSION, an estate in, cannot be granted under a power lo create an estr.fe in possession - - ' ST-^ but the defect may be supplied in equity - ib. mere reversionary interest cannot be granted under a power intended as a provision - * " 425 ■* where a reversionary lease is within th- power - 4gi " lease in reversion,'* the signification of the term as applied to li'ases for years and lives - - - 4g4 what amounts to a lease in reversion - - 4yr> lease in pos-tession good, although the land is in the hands of tenants from year to year if they attorn 498 soif the estate !S in lease, if the lease is delivered up, and a surrender will be presumed - - 4gg $0 if a tenancy has expired, but the old tenant has a right to depasture - - - 50D the custom of the country will not authorise a lease in rever- sion against the terms of th^ power - - 501 lease of part in reversion and part in possession if entire is wholly void - - - - 501 a reversionary lease being merely a continuation of an exist- ing lease, will not support it - - - 500 See FuTURo. REVOCATION, POWER OF in what instruments it may be reserved - - 1 13 whether in a conveyance unlo, and to the use of the same person - - - - 115 extends to what estates - - - 126 where it suspends the payment of portions. - - 131 where implied, although not expressly given - - I66 executed by a general disposition - - - SZ*; although required to be made by express words . 226 may be reserved upon an appointm.nt without an express authority - . . . 243, 253 even under the usual power of leasing - - ' 50l will under a power may be revoked, although no power be reserved ... - 245 contra of a deed, although authorised by the instrument creathig the power - - . 253 REVO- ■i; INDEX. 599 Tiijei ■ REVOCATION, POWER OF— {Continued) in an original settlement, tantamount to a power to revoke and limit new uses, where - . 248 — 254 contra of a power in an instrnment executing a power 254 whether it can be reserved upon the execution of a power simply collateral - - - - 254 if not executed, void against a subsequent purchaser 33* See Bargaix and Sale. Consideration. Crown. Execution of Powers. Pur- ♦ . CHASER. SALE AND EXCHANGE, POWER OF how it should be given - , . lOO how it should be executed . - lb. to sell in case of a deficiency, or upon other estates being settled cannot be executed till there is a deficiency, or ano- ther estate is settled - - - 211 — 214 where it authorises a limitation to bar dower 3/0 power of sale does not authorise a partition - - 38S wheiher a power of exchange do, qu. - . ib. but this may be done circuitously under a power of sale 3S9 tenant for life under the power may sell or exchange with bis trustees - _ > _ sqq in what cases the power of sale may ba exercised - 291 > See Mortgage. SATISFACTION, what amounts to satisfaction of a portion - - 314 where parol evidence is admitted - - ib. cannot be presumed where the intention is stated - ib. SCINTILLA JURIS, its nature - . . - 17 — 4S SEAL, required, cannot be dispensed with . _ - 178 whether a stamp on the deed is equivalent to a seal - J 98 what amounts to a sealing . . .199 See Decective Execution. Signing. SEISIN, what must be raised to serve powers - . 92, 123 See Devise. Scintilla Jl'RIS. Trustees, Power to avpoint new. SEPARATE, 600 INDEX. SEPARATE USE. See Estates. Feme Covkrt. Jointuh iNG, Power of. SHELLEY'S CASE, RULE IN. See Limitations. SIGNING, required, cannot be dispensed with - - 1 7S sealing is not signing semb. - - 1/6 a mark equivalent to signing the name - 200 in what cases the fact of signature should be stated in the attestation of the witnesses - - 200 See Defective Ekecution. SIMPLY COLLATERAL POWER, defined - - - - 51 cannot be destroyed by the donee - - 5'.i nor by a stranger - - - ib- whether a donee can reserve a power of revocation - 254 SISTER. See Defective Execution. SOLEMNITIES, required to the execution of a power, must all be attended to - - - - -170 where they refer to all the instruments by which a power is authorised to be executed - ISQ — 191 must be perfected in the lifetime of the donee - 205 may be added by the donee himself - 2-13 See Bargain and Sale. Sealing. Sign- ing. Tender. STAMP. See Sealing. STATUTE OF FRAUDS- See Sealing. Signing. "Will. STRANGER. See Volunteer. SURPRISE. See Defective Execution. SURRENDER, ^> where anew lease will amount to a surrender in law of an old lease - - - 50a where a surrender of an old lease will be presumed 4pc; where a surrender may be taken and a new lease grafsted 5og See Reveksion. SURVIVOR. See Executors. Limitations. Powers. SUSPENSION, of powers appendant - - 54, 66 in gross - - -57, 66 TAXES i N D E X» GOl Pages TAXE>. See Jointuring, Power, of. Rent. TEIvM FOR YEARS, See Cestuigue Trust, Estates. Lease for Years. TEX ANTS IN COMMON, by devise, in default of appointment, death of any in testa- tor's life defeats the power and devise over pro tanto 382 how created in de;ds executed under powers - 384 what amounts to a tenancy in common under an implied gift in default of appointment - - 466 TENANT FOR LIFE, with a power to appoint by will how he may sell the estate 185 may purchase or take the estate in settlement under the usual power of sale and exchange - - 3Q0 See Estates. Fine. Limitations. Reco- very. Time. TENDER, of several sums necessary in respect of distinct powers 205 the fact of the tender should be stated in the deed - 206 at what place it should be made - . 20/ to whom it should be made - - jb, TIME, power to be executed at any time will be restrained by equity if executed fraudulently - . 2IS power to be executed six months before the donee's death may be executed at any time - _ 21S power given on a contingent event may be executed before the happening of the evpnf- . _ 216 power to sell after the death of tenant for hte a sale cannot be made in his lifetime - - - 217 power given in default of issue at what time the issue must fail - - - - 218 powers to be executed when in possession, what possession is sufficient - - - - 219 TREASON, power forfeited by, where the execution of it is not annexed to the mind or hand of the donee - - 148 but it must be executed in the life of the donee 152 Sec Crown. 2 R TRUST, 603 INDEX. 'age* TRUST, where a power is tantamount to a trust - ~ 31^ . See Feme Covert. Resulting Tkust. Unalienable Trust. TRUSTEE, cannot be controlled where he has a power of consent 210 an execution will be set aside where his cansent is ob- tained by fraud . - - 330 having a power of appointment upon a bill aled, the court will distribute the fund equally - - 410 See Sale and Exchange. TRUSTEES, POV7ER TO APPOINT NEW, how they should be executed - - I67 whether the new trustees must have a seisin to serve the uses 167 how they should be created - - I69 where an appointment may be made although not within the express Avords of the power - - 375 UNALIENABLE TRUST, what amounts to it - - - 105 See Feme Covert. USES, their nature before and since the statute - 1 — 16 cannot be limited on uses - - - 16 whether a devise to one to uses operates under the statute 118 powers in wills where no seisin is raised are not within the statute ' - - - 169 Rpp ■Rat^gain and Sale. Consxdekation, Covenant to stand seised. Scintilla Juris. Seisin. VALUE, ■ #^ of lands injointure at what time to be taken - 439 VESTED INTERESTS, where the gift of, relates only to unappointed shares 465 VOID LEASE. See Lease, Power to. VOLUNTEER. See Defective Execution. WASTE, power to commit^ avoids a lease where 528 WIFE. t N D E X. 608 Pages WIFE. See Baron AND Feme. Feme Covert. WILL, power to appoint by, where it can be barred - 6l revoked by partition where power of appointment is i"eserved 82 power over real estate may be reserved to be executed by will witliout witness - - - iCQ but not to the owner himself by hia own will - 110 executed by \\'iil witliout any requisition, need not be in the presence of three wi!ries-es - - 1^4 required, power canr.oc be executed by deed - - 1 82 but a will being in the form of a deed is immaterial 1S4 and where general words as '' writing" " insti-ument" are in the pov/er, k may be executed by will - 18(5 required, must be executed as a proper will - - IQQ so where a " writing in the nature of a will" is required ib. but the will may be valid as to persqnalty, though void as to realty - - - - 197 republication of, cannot operate as tlie execution of a new power - - - - - 235 executed under a power may be revoked - 245, 256 operates as a proper will 255, 384, 443 of personalty must be proved as a proper will - - 258 defect in execution of will of real estate under a power may be supplied . . _ . 292 See Covenant. Defective Execution. Devise. Excessive Execution. Fkme Covert. Legacies. Witnesses. WITNESSES, •^to an appointment by will of real estate not necessary, where IO9 tlie number required must attest the appointment - 1 78 niusi be cf the rank required - - - 1/8 must attest the fact of signature, where - - 2OO whether they can amend the attestation after the death of the person executing tho power . - 203 need not sign an attestation unless required - - 204 See Will. WORDS, COi; ' INDEX, Pages WORDS, by -what, powers may be created - - - 92 WRITING. Sec Will. YC:U>-GER CHILD, •Vihen considered an elder cliild - - - 421 riNis. V^ Printed by R. Wii,its, C5!?.iicen'-lane. UC SOUTHERN REGIONAL LIBRARY FACIUTY AA 000 834 211 5