V mmm ^ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY /, 2 PRACTICAL TREATISE OF POWERS. BY THE RIGHT HONOURABLE SIR EDWARD SUGDEN. THE SIXTH EDITION. IN TWO VOLUMES. VOL. I. LONDON: S. SWEET, CHANCERY-LANE II. MILLIKEN & SON, DUBLIN. 1830. T SuZZl ? London Printed by James & Luke G. Hansard & Sons, near LincolnVInn Fields. THE RIGHT HONOURABLE JOHN LORD ELDON, LORD HIGH CHANCELLOR, # &c. &c. 8cc. MY LORD, It was with great diffidence that I ven- tured to ask your Lordship's leave to prefix your name to this work. The extent of your Lordship's constitutional and legal knowledge, if it has ever been equalled, has certainly never been surpassed : and I naturally paused before I ventured to so- licit the high sanction, which your Lordship's permission to affix your name, must give to any treatise on English Law. I felt the presumption of addressing such a request to a Judge, who has so often excited the admiration of the Bar, by a display, without effort, of an extent of knowledge in eve ry branch of Jurisprudence, which the life of man appears to be insufficient to acquire. If these considerations deterred me from making the application, I was encouraged to it by that judicial mildness and gravity, that urbanity and attention to the youngest counsel in the Court — a 2 the 783147 IV DEDICATION. the true marks of a greal mind — which operate so powerfully to make your Lordship beloved by the Bar, and soften the splendour \\ Inch profound know- ledge, high character and dignity, shed around you. Your Lordship has added to the obligations, which 1 owe to you, by the kind manner in which yon have granted my request. I have the honour to be, MY LORD, With great respect, Your Lordship's very obedient, and much obliged Servant, EDWARD B. SUGDEN. Lincoln's Inn, 18th January 1821. [When the Third Edition xvas published.] PREFACE. At the close of the Preface to the first edition of this work, the Author pleaded, as an excuse for any inaccuracies in it, the necessity of devoting his time to other labours, from which moments were snatched for this performance. More than a quarter of a century had elapsed since that apology, when the Writer suddenly found himself, for the first time, in possession of — leisure. After some relaxation, not unmindful of the debt which he must ever owe to his Profession, he de- termined to review this book, and he has done so to the exclusion, for a considerable period, of all other pursuits. He must now trust to some other apology for any errors ; but he may be allowed, in fairness to himself, to say, that nothing has been spared to render the work correct and complete, which unceasing labour, devoted to a favourite subject, could accomplish. This work in its original state might be consi- dered as a text-book, in which an attempt was a 3 made > i PRE] \< B. made to deduce the rules from the decided cases. The plan has now been enlarged, and the leading cases arc stated succinctly and examined, so that tlic practitioner will be enabled to collect, in a comparatively short time, the facts of the principal authorities; and the Writer's observations upon them will at all events afford materials for reflec- tion. He knows, by a long experience, how use- ful this will be in the pressure of business, if the execution of this portion of the work at all justifies the time which has been bestowed upon it. He regrets that he has upon so many points differed from persons for whom he entertains unfeigned respect) but he has rather considered the principle of the rule than the weight due to the authority by whom it was pronounced ; and his own erro- neous impressions may readily be corrected, for it is but in few instances that he has given an opinion without stating the reasons upon which it is grounded. The page of text has been enlarged, but still I he additions, which include all the recent cases, are so extensive as to render existing references to the book no longer useful, and the Writer therefore has not hesitated partially to alter the general arrangement, where he deemed it an im- provement. PREFACE. Vll provement. He has divided the work into more chapters and sections, and has numbered the para- graphs, and prefixed to each section a table of its principal contents ; he has likewise taken great pains with the general index. He has endeavoured to correct and clear up whatever in the original work his own observation or the sagacity of others had pointed out as erroneous, or even ambiguous ; and he has throughout been animated by an ardent desire to improve this important branch of the law of real property, to which his attention was directed early in life ; and he believes that a series of treatises, written with this object, would, with such correc- tions as the Legislature only can make, and which can seldom be well directed unless a comprehen- sive view can be readily taken of the whole subject, tend to place the law of property upon a better footing than it stands at present. The authorities are not likely to harmonize unless they are col- lected, and the entire subject examined. It is then that the discrepancies and departures from prin- ciple are for the first time observed. We have many admirable treatises, but for the most part our legal authors want either experience or time, and it ever must be so ; for if a man do not write on law whilst he is young, he probably never a 4 will ; viii PRE! H i. will; and if at an advanced period he revises his early productions with the advantage of reputation and increased experience, — time, without which nothing important can be accomplished upon legal subjects, is no longer at his command. And besides, a Counsel in actual practice can seldom write freely upon decisions in which he has been engaged. If he find fault with a decision against him, it may be imputed to partial or perverted views ; and if he disapprove of any in which he has been successful, the criticism from such a quarter might afford the ground-work of an appeal. The subject of Powers is but a branch of Uses, although it has greatly surpassed in growth its parent stock. As the Author's edition of "Gilbert on Uses " has been long out of print, it is his intention, availing himself of his former materials, to write a short Essay upon Uses, so as with this work to furnish a view of the whole law on that ground-work of conveyancing. This will close his legal labours. The introduction to Gilbert, and the note on Springing Uses, are not inserted in the Appendix to this edition, as they will properly find their place in the other work. In PREFACE. IX In the course of the last session certain bills in relation to wills and deeds, passed the House of Commons. They have again been brought before Parliament, and there are various provisions in them which, if passed into a law, will affect the operation of Powers, and to which, therefore, the attention of the Profession should be drawn. It was pro- posed last session to be enacted, 1. That wills of both real and personal estate should be signed by the testator, or by some other person in his presence and by his di- rection, and that such signature should be made or acknowledged by the testator in the presence of two witnesses present at the same time, and should be attested by such wit- nesses, but that it should not be necessary for them to be credible witnesses, and no form of attestation was to be necessary. 2. That no deed should be valid unless signed as well as sealed, nor unless its execution should be attested by one or more witness or witnesses, but no form of attestation was required. 3. That every appointment by will or deed, or writing, should be subject to the same rules, for PREFACE. tor the sake of uniformity, whatever might be (lie form of execution or solemnities required by the power. And every appointment made by writing (otherwise than by will) was required to be executed as a deed; but no direction by a married woman of the income of her separate estate, was to be deemed an appointment. 4. That an appointment by deed or will to one to uses, unless a contrary intent should ap- pear by it, should take effect as if the appoint- ment had been immediate to the uses, (see vol. i. p. 240.) 5. That every will executed as above should be valid, without any other publication thereof. (see vol. i. p. 310.) 6. That marriage of either a man or woman should revoke his or her will, except a will made in exercise of a power of appointment, when some person other than his or her heir, executor or administrator, should be entitled to the real or personal estate thereby ap- pointed, in default of such appointment. 7. That PREFACE. XI 7. That no conveyance, subsequent to a will, should operate as a revocation of it, as to the interest left in the testator. 8. That every will should be construed, with reference to the real estate and personal estate comprised in it, to operate and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention should appear by the will. 9. That a general gift should operate as an exe- cution of all powers. Some of these provisions appear to go too far, and may, if passed into a law, lead to confusion, and endanger men's titles. Under many existing powers, an appointment may be made by a mere writing, whether testamentary or an act inter vivos, unat- tested or attested by a single witness. Now it is proposed to alter existing powers. If the power is executed by a will, there must be two witnesses. If it is executed by an act not testamentary, it must be by a deed, and that deed must be signed and attested. This appears to be an unnecessary and dangerous innovation on the rights of parties. It is not quickly that new law circulates amongst ignorant PREF M I • \il iffnorant practitioners or the parties interested. Upon looking at the power itself, the mode of exe- cution would be found to be prescribed, and would in very many instances be followed, and the new- law would destroy appointments strictly executed in the manner required by the powers. If the law is to be altered as extensively as contemplated, still it should be modified in the first instance. It mighl be provided that all attestations to instru- ments executing existing powers, however informal, should be valid if the instrument really was exe- cuted in the manner required by the power, (.sec vol. i. p. 325) ; and all future powers, and con- sequently the appointments under them, might be rendered subject to the general law. This plan would gradually assimilate the rules, without break- ing in unnecessarily upon existing rights. The sixth rule will no doubt frequently defeat wills which the party had no intention to revoke; whilst the seventh and the eighth, which appear also to go too far, will not unfrequently give to a will the operation of an appointment, directly contrary to the intention of the donee of the power. The ninth has been properly omitted, as it is antici- pated that the law can work itself right, (.sec vol. i. j). 419j) a-nd sucn a general rule would execute powers PREFACE. Xlll powers which the party himself did not intend to exercise. Many of the provisions in these bills are im- provements, and reflect much credit on the framer of them, but the Author's own impression is against repealing the statute of frauds, although the clause requiring the witnesses to sign in the presence of the testator, which has led to ab- surdities, should be modified. The provision upon this point, as it now stands in the bill, seems to require some alteration. The enactment as to the witnesses not being credible may be a proper one, but if it is, the mischief appears to require a more extensive remedy. A nation legislates to little purpose by merely substituting one positive rule for another. The great object is to have a fixed rule productive of no mischief. Now in this instance we already have a well-known statute law, which has operated bene- ficially ; and it does not appear to be a sufficient reason for disturbing it, that in the opinion of some, all wills of property of every description should be executed in the same manner. It is a long time before a new law of property is universally known, and a frequent change of the law at once disturbs the rights of individuals, and by unsettling men's X.iv I'lf IMAGE. men 'a minds leads them to resort to the Legis- lature for relief againsl whatever is for the moment deemed impolitic or harsh. Some of the provi- sions established by Parliament recently in regard to descent and dower, are instances where one rule has been substituted for another, without any cor- responding benefit. But still there is room for improvement. It deserves the attention of the Government how this can best be effected. It is suggested that the remaining subjects should be in- vestigated, and any proposed alterations submitted to the heads of the law. When the new provisions are agreed upon, they ought to be carried into execu- tion as Government measures, and not left to the discretion and resources of individuals. If this plan were at once adopted, men would know by what rules their property was likely to be bound, and it would not prevent such improvements as time might suggest ; but it would be an answer to daily appli- cations to Parliament to alter the law of property. Nothing is more unwise than to allow a legislative remedy upon the immediate pressure of a legal difficulty. The law, as a rule of right, will be found to work best for the people when it is moulded and directed by the Judges to the ever- varying circumstances of individual cases; although where PREFACE. XV where a series of decisions operates contrary to jus- tice, the Legislature is bound to modify the prin- ciple. But a settled rule ought not to be altered without a certain prospect of good. There is also great danger in including many provisions in one Act of Parliament : room can only be afforded for a single clause for each subject, so that the necessary restrictions and qualifications cannot be introduced, and the statute becomes simply a text for the Judges to comment upon, and it is long ere Cer- tainty, which ought to be the great object of every alteration, is attained. The people pay dearly before the application of a new law to the ordi- nary transactions of life is settled. This should be guarded against, where recourse is had to the Legislature. These observations are not directed against legis- lative improvements, but are intended rather as suggestions, that such improvements as remain to be executed should without delay be ascer- tained, and carried into execution, as parts of one great plan, sanctioned by the Government, sifted by the Judges, and executed by able hands, in order that the country may enjoy at an early period, not only an improved, but a fixed body of laws, which in time may attract the reverence and \\ 1 PREFAC1 and regard of the people as deeply and warmly as the laws which we arc removing were revered and cherished by our ancestors. This time alone can accomplish, and until the period arrives no law can be deemed in a sound state; and it never can arrive unless the law is placed upon a perma- nent foundation. Doyle Farm, 25 April 183G. CONTENTS. CHAPTER I. OF THE NATURE OF POWERS BEFORE AND SINCE THE STATUTE OF USES. Page Section I.« — Of Powers before the Statute of Uses 1 1. Powers classed -------1 2. Authorities -------l 3. Equitable powers ------ 2 4. Powers under the Statute of Uses - - - 2 Section II — Of the Statute of Uses ----- 6 1 . Statutes of Uses ______ 6 3. Uses not destroyed ------ 8 4. Hotv raised ------- 9 5. Use upon a use not allowed - - - 10 6. Modern trusts - - - - - - -10 Section III. — Of Scintilla Juris - - - - - -11 1 . Powers before the statute - - - - -11 2. Powers after the statute - - - - - 12 4. 6. Scintilla juris - - - - 13. 14 5. Necessity of entry before the statute - - - 13 7. Chudleigh's case - - - - - -18 8. Sir Edward Coke's case - - - - - 28 9. Doctrine discussed - - - - - -31 10. Points supposed to be established - - - 33 11. Inconveniences of the supposed rides - - - 34 12. The true construction of the Act - - - 36 Section IV. — Of the several kinds of Powers deriving their effect from the Statute of Uses - - - - - 42 1 . Powers classed ------- 42 2. Powers appendant ------ 43 3. Powers in s;ross - - - - - 44 4. Powers both appendant and in gross - - - 44 b xviii CONTENTS. Page 5. rowers simply collateral - - - - - 45 6. Poiver to heir of grantor taking no estate not simply collateral .------ 46 7. Legal power to equitable tenant not simply collateral 47 CHAPTER II. OF THE MODES BY WHICH POWERS MAY BE SUSPENDED, EXTIN- GUISHED AND MERGED. SiCTlON I. — Of the extinguishment of Powers simply collateral - 48 1. Powers simply collateral catmot be destroyed by the donee --------48 2. Nor by a sty-anger ------ 49 Section II. — Of the suspension ofPow-crs appendant and in gross, 50 I . Powers appendant are affected by an interest granted by the donee out of his life estate - - - 50 3. Bid the right to exercise the power is not suspended 51 7. Operation of the grant - - - - - 53 8. Powers in gross not suspended by a lease - - 56 Section III. — Of the extinguishment of Powers appendant - - 57 1. Extinguishment of powers appendant - - - 57 2. Mortgage by tenant for life of his whole estate does not destroy power of leasing - - - - 58 3. Particularly where right reserved to exercise the power --------59 4. Nor will it destroy a power of sale and exchange - 63 5. Review of the cases upon powers of leasing - - 65 6. And upon powers of sale and exchange - - 71 7. Powers not affected where there is a mere re-settle' merit --------74 8. How recoveries were suffered to save powers - - 76 9. Power and estate ; Conveyance of estate destroys the power -------78 10. The same as to personalty - - - - - 79 II. Effect qf bankruptcy ------ 79 12. Badham and Mee, with observations - - - 80 Section IV. — Of the extinguishment of Powers collateral or in gross -------- $2 1. 4. Not by a conveyance qfilie life estate - 82. 83 2. Nor by an innocent conveyance in fee - - - 83 3. But may be by a new settlement - - 83 4. Object of the power immaterial - - - 83 CONTENTS. XIX Page Section V. — Of cases common to both Powers appendant and in gross ---- _.__87 1. Power not simply collateral may be released - 87 2. Or defeasanced - - - - - -88 3. Not extinguished by a partial execution, with a new power --_.___ 89 4. Extinguished by a tortious conveyance - - 91 5. Not by the acceptance of a feoffment - - 92 6. Cases where a feoffment, &;c. will not extinguish a power - - - - - - - -92 7. Cases where a feoffment, Sfc. will execute a power - 9,3 8. Or operate as a confirmation - - - - 95 9. Partial bar of a power appendant and in gross - 97 10. Power to appoint to children may be barred or re- leased --____- 98 11. West v. Berney ------ 98 12. Effect of a release for the donees own benefit - 101 13. The operation of deeds under the Act abolishing fines and recoveries on powers - - - 102 14. Extinguishment and release of powers by married women under the Act - - - - -103 Section VI. — Of the merger of Powers ----- 104 1. Fee and power may subsist together - - - 104 2. Maundrell v. Maundrell - - ~ - - 109 3. Goodhill v \ Brigham - - - - -110 4. Power merged by the accession of the fee - - 111 CHAPTER III. OF THE CREATION OF POWERS. Section I. — Of the words by which Powers may be created - 115 1 . Formal words not necessary - - - - 1 1 6 2. Recital may reserve a power - - - - 117 3. Cumulative powers - - - - - -117 5. What is a power and not an interest - - - 119 6.9. Express estate for life - - - - - 119 1 0. Where no estate for life is given - - 1 1 9 11. An estate for life, with remainder to the appoint' ment generally of tenant for life - - - 121 15. Result -------- 123 16. Particular gifts ------ 125 23. Devise to trustees 127 b 2 \\ Page 25. Where executors take a power to sell only - - 128 26. Executors take. a power by implication inhere they are to distribute the fund - - - - 133 30. Executor oj executor may sell under implied power, 134 31. Pitt v. Pel ham - - - 135 36. Produce of real estate blended with personalty - 138 37. Executor renouncing probate may execute power - 138 39. Power to survivor - - - - - -139 40. Executors who accept the power may sell - - 139 41. May sell to themselves - - - - - 140 42. Poivcrs do not survive - - - - -141 43. But under power to executors enrvixor may sell - 142 44. Result - 143 46. Executor of executor cannot sell - - - 145 47. Power to representatives not extended - - 148 48. A new trustee appointed by Court of Chancery not a representative - - - - -151 51. Powers in deeds - - - - - -152 52. Powers may be authorized to be created by note in writing, fyc. - - - - - -154 Section II.— Of the Instruments by which Powers may be created, 157 1. Power to lease in bargain and sale, or covenant to stand seised, is void - - - - - 157 3. Unless to an individual named, with consideration, 158 5. Bui a power of revocation may be reserved - - 160 6. And all powers in feoffments, S)-c. - - - 161 7. Conveyance to and to the use of A, with power of revocation, a leged power - - - - 161 8. Conveyance to and to the use of A, vests the legal fee - - - 171 9. Devises may be to uses upon uhicli statute of uses will operate - - - - - -171 10. Seisin should be commensurate with the uses - 176 12. W here powers are authorized by articles - - 178 Section III. — Of the Objects for which a Power may be created, 179 1. Powers to revoke particidar limitations valid - 179 2. To raise concurrent interests - - - 180 3. To create a perpetuity void - - - - 180 5. Power $ of sale and exchange unlimited, not void - 181 6. Xor ponrrs to appoint to unborn issue generally - 181 CONTENTS. XXI Page CHAPTER IV. BY WHOM POWERS MAY BE EXECUTED. Section I. — Of the Execution (f Powers by married Women - 183 2. A married 'woman may execute powers - - 1 84 3. Although given to her when sole, 8fC. - - - 185 4. Unless given to her " being sole" - - - 185 5. Rich v . Beaumont ; not suspended by marriage - 186 6. Equitable power in wife's estate under marriage articles binding - - - - - -188 8. Observations on Bramhall v. Hall - - - 190 9. Mr. Serjeant Hill's remarks upon it - - - 192 11. Marriage a revocation of a woman's will tinder a power - 194 12. Unless she has no interest, semble - - - 194 1 3. Mr. Banister's note to prove that the husband must join in the wife's appointment - - - 194 14. Grange v. Tiving ; Bridgemans opinion - - 196 15. Observations upon it 199 16. The note considered: the husband's consent not necessary ------- 200 17. Power by statute to renew leases - - - 202 19. Unalienable trusts for married women - - 203 20. Cease upon death of husband - - - - 204 21. Trust for separate use, valid throughout - - 205 23. Massey v. Parker considered - 206 24. A married woman is a feme sole as to separate property ------- 208 25. IV hat is a power of disposition - - - . 209 26. Consent in court not necessary - - - - 213 Section II. — Of the Execution of Powers by Infants - - 213 1. May execute authorities and powers simply colla- teral - - - - - - - -213 4. But not a power appendant or in gross - - 215 5. Grange v. Tiving: Bridgemans opinion - - 217 6. May exercise a power over personalty - - 219 7. Powers by statute to grant leases - 220 CHAPTER V. OF THE TRANSFER OF POWERS. Section I. — Of the Transfer or Delegation by the Act of the donee - -221 b 3 x\ii CONTENTS. Page 1. Particular poxier cannot be executed by attorney - 221 2. Nor be delegated - - 221 3. 5. Where a deed of appointment may be executed by attorney ------ 222. 224 4. Original potoer to assigns ----- 223 7. Delegation void, if other good uses appointed - 225 Section II. — Of the Transfer or Delegation by Acts of Parlia- liament and the act qflaiv - 225 1. Benefit of conditions belonging to attainted per- sons vested in Crown ----- 225 2. Not forfeited if annexed to person or mind of donee, 226 3. Right to tender, in Crown - 226 10. May be performed by commission - 231 11. Must be executed during donee 's life - 232 12. Power of revocation in King's debtor, for benefit of Croun ------- 232 13. Or in a subject remaining abroad in contempt of the prerogative ------ 232 14. Powers in insolvents given to assignees - - 233 15. Vomers in bankrupts given to assignees - - 234 17. Powers in lunatics given to committees - - 237 18. Powers by statide to incapacitated persons - - 237 CHAPTER VI. OF THE EXECUTION OF POWERS. Section I. — Of the Execution of Powers, particularly with refer- ence to the Statute of Uses - 240 1 . Appointment should be to uses at once - 240 2. Appointment by construction - - - - 241 3. How to be framed ------ 243 4. Appointment and release ----- 244 5. Limitations to bar dower ----- 245 6. How affected by late statute regulating dower - 249 7. Appointment under general power to the appoint- ment of another ------ 249 8. Towers of revocation implied - 250 10. Common-law authorities - - - - - 251 1 1. Appointments under them operate according to in- tention - - - - - - -251 12. 13. Opinions upon their operation with the aid of the statute of uses - - 251.252 CONTENTS. XX111 Page 14. Statute does not operate upon the estate appointed, semble -------- 252 15. Special authority ------ 253 16. Letters of attorney. 254 17. Revocation and appointment by the same instru- ment -------- 256 19. Appointment passes only the donor 's interest - 256 20. Notice to the trustee of the fund - 257 Section II. — Of the Words and Instruments by which a Power may be executed - - - - - -257 1. Any words indicating intention sufficient - - 257 2. A recital - - 258 3. Where power is general, a writing unattested, suffi- cient ___ 260 4. Or feoffment, lease and release, fyc. - - - 26 1 5. Or will not attested by three witnesses - - - 26 1 6. Probate duty - ----- 263 Section III. — Of the Instrument by which a Power is required to be executed - - ----- - 263 2. Forms required must be complied with - - 263 3. The various ceremonies, viz. Deed enrolled ------ 266 Several witnesses — noblemen, Sfc. - 266 Credible toitnesses - 266 Sealing ------- 266 Signing ------- 266 Notice - - - - - - - 267 4. Charity an exception ----- 267 6. Deed required ; will not good - - - - 268 7. Will required, act inter vivos not good - - 270 8. Where the power is by construction confined to a will -------- 270 10. By will or otherwise, a deed good - - - 271 13. Will valid, though sealed and delivered - - 274 15. Sale by tenant for life with power to appoint by will ------- 276 16. Writing, fyc. will include a will -' 276 18. Roscommon v. Fowke - 277 22. Although power to favo and survivor - - - 282 23. Distinct powers ------ 282 24. Where the ceremonies relate to all the instruments, 286 b4 \\l\ ( ONTENTS. Page 28. Donee may select one of several modes - - 290 29. May execute it by more instruments than required, 290 Section IV. — Of the Mode in which the Instrument is to be exe- cuted ------- 294 J. Writing under hand and seal required, delivery unnecessary ______ 294 2. Due attestation ; one ivitucss good - - - 294 3. So due execution and attestation - 295 4. Legally executed ; what is required - 295 5. Willan v. Lancaster „_,__- 296 7. By deed or will, must be executed as a proper deed or rail ... - - - 297 8. Jones v. Cloueh ------ 298 1 1. Stamp or wafer not equal to a seal - - - 299 12. Incapacity to sign, no excuse - - - - 301 13. Subscription in the presence of witnesses - - 302 15. Attestation by the witnesses - 303 16. 31. If attestation not required, informal one, good ------- 304. 327 17. Attestation required ; sealed instead of 'signed, bad, 306 20. 24. Attestation of publication of will - - 310. 312 21. Delivery of a will, a publication - - - 310 25. Meaning of "attest" ----- 312 26. Review of the decisions - - - - - 313 27. Act to amend past defective attestations as to sign- ing - - - - - - - - 321 28. Observations upon it _____ 324 29. Construction qfit- - - - - - 325 30. More witnesses than are required, good - - 327 32. Execution by blind man ----- 328 34. Enrolment required, must be in the life of the donee ------- 328 35. Whether attestation can be amended - - - 329 37. Codicil properly executed supports a will not - 330 Section V. — Of Tender and Consent required to the Execution of Powers .331 1. Tender under different powers - - - - 331 3. Evidence of tender ------ 332 4. What is a compliance as to lime and place - - 333 6. To nhom it may be made - 333 7. Consent of a third pei - 334 CONTENTS. XXV Page 8. Power gone if he die ----- 334 8. 10. Power to several does not survive - - 334. 336 12. Heirs substituted by construction - 337 14. 15. Consent should be given as part of transac- tion ------ 338. 339 17. Potver to consent cannot be delegated - 340 18. Subsequent consent invalid - - - - 341 19. Not a breach of trust to consent to a revocation - 341 20. Trustee to consent not controlled by court - - 342 21. Uidess he submit to act as court direct - - 343 22. One consent sufficient ----- 343 23. Bid fraudulent consent bad - 343 24. Power of protector under recovery act - - 343 27. Loss of deed containing the potuer -- 344 Section VI. — Of the Time at which a Power may be execided, and of partial Executions - - - - 346 2. The whole life-time of the donee allowed - - 346 3. 4. Power to be executed on an uncertain or con- tingent event ------ 347 5. Power to survivor of two, cannot be executed by both - - 349 6. Execution of a power by a woman by will before marriage ------- 349 7. Sale to be made under power after death of tenant for life, cannot be made before - 349 9. Power on default of issue, when it arises - - 350 12. Where the donee is co?dingent - - - - 354 14. Powers when in possession, possession cannot be accelerated ------- 354 16. Powers may le partially exercised - 357 17. Unless confined ------ 353 20. Mortgage in equity a partial exeadion - - 359 22. 26. Unless there is an inconsistent disposition of equity qf redemption - 360. 364 23. Anson v. Lee : Mortgage with equity qf redemp- tion reserved to mortgagor, total revocation - 361 24. 27. Observations upon that case - 363. 367 26. Lnnes v. Jackson - -..---- 364 29. Martin v. Mitchell, with observations - - 369 32. Appointment as his share to an object, does not prevent further appointment to him - - 371 33. Bad execution ; the power may be re-exercised - 371 wvi CONTENTS. Tage Sic HON VII.— What amounts to the Execution of a Power where the Donee has not an interest in the Estate - 373 1. Pomer need not be referred to - - - - 373 5. Where there are several powers - 375 7. If some referred to, it is against general words operating on others ----- 376 8. Trollope v. Linton, with observations - - - 376 10. Execution of one power not an execution of another over another estate by relation - 380 12. Revocation by codicil of an appointment by will - 381 13. Introductory words ride over all the clauses - 381 14. Though power be generally i "J erred to, disposition may be confined - - - - - -381 15. Mere reconveyance does not destroy settlement with power of revocation ----- 384 16. Renewals of leases not an appointment to the donee 384 17. Nor conversion of Three per Cents, into Long Annuities ------- 384 18. Bill filed for transfer, an equitable appointment - 385 19. If power not referred to, property must be - - 385 20. Residuary devise not an appointment - - - 385 21. Slight circumstances of conformity not sufficient - 386 24. Jones v. Tucker ------ 389 26. Forbes v. Ball ------ 390 27. 28. Good if specific ----- 390. 398 31. Although special power, appointmcyit bad if gift gener al and there is other property - - 392 32. 33. Real estate passes by that description, if none but that within the power - 393. 394 34. Wallop v. Lord Portsmouth - 394 36. Standen v. Standen _____ 395 37. So leasehold estates pass by that description - - 397 39. Nowell v. Roake : estate in moieties ; power and property ------- 399 40. Repetition of general words inoperative - - 401 42. Hougham v. Sandys - 402 43. General devise with property will not jmss money to be laid out in land ----- 404 44. General devise will not pass money to arise from the sale of land ------ 404 46. Appointment overfreehold and copyhold net good CONTENTS. XXVU Page for both, although operative as to one as there ■was no other estate _■--__ 405 47. Napier v. Napier ------ 405 48. Churchill v. Dibben 407 50. Morgan v. Surman : if good as to real estate, be- cause no other, good as to personalty - - 412 51. The words must be sufficient to pass real estate to raise the question - - - - -414 53. Jones v. Curry ------ 415 54. Lovell v. Knight : disability by marriage does not alter the operation of a general gift - - 416 55. The cases reviewed - - - - - -419 56. Bond by a feme covert not an execution of a power, semble ------- 426 57. Maddison v. Andrew 428 Section VIII. — What amounts to the Execution of a Power where the Donee has an interest in the Estate - 430 1 . Where power and interest, a general act passes the interest __-_.-- 430 2. 10. But if the act would be in part inoperative, the power operates - - - - - 431. 436 4. So general act executes a power of revocation where only a partial interest ----- 433 9. Or disposition would be void - 436 10. Feme covert' 's will, executes her power - - 436 11. Lease absolute, by a tenant for life, operates under power ------- 437 12. Although the donee mistake his title and recites an interest ------- 437 13. Denn v. Roake. Observations on judgment - 438 14. 15. 18. Intention governs : Several powers, 440.442.443 16. Power intended to be exercised, interest not to pass to appointee's prejudice ----- 442 17. Interest will aid a devise under void power - - 443 18. Power not executed against intention -• 443 19. Legal lease bad under equitable power - - 446 20. Operation of a codicil upon a new power - - 447 21. Lane v. Wilkins ------ 447 22. Powell v. Loxdale ------ 449 23. Where legacy remains though potver destroyed - 450 24. Effect ofnfne upon a will - 450 XXV1U CON'Tl'N Page 25. Settlement a revocation of a will - 451 26. Appoint wail and release intention governs - - 451 27. Roach v. Wadham, with observations - - 452 28. Wynne v. Griffith ------ 456 Suction IX. — Of the Qualifications which may be annexed to the Execution of Powers by the Donees thereof - 459 1. Donee may annex conditions : Escrow - - 459 2. Poxiers of revocation and new appointment may be reserved ------- 460 4. They are separate powers - - - - - 461 5. Power to two and survivor: potver may be re- served to survivor to revoke - 463 (i. 7. Secus of a joint particular power - - - 464 8. Original solemnities need not be required in netv power ------- 465 9. Power of revocation may be reserved, although not mentioned in the instrument creating the power, 467 10. Beckefs case - - 467 1 1 . Hele v. Bond. Where execution by deed, no revo- cation good without power reserved by that deed 470 13. Power in original settlement to revoke includes power to limit ------ 474 14. 24. Unless contrary to intention - - 415. 484 16. 17. Or the power is reserved in an instrument executing the power - 477,478 19. Or the power is to a stranger to revoke - - 480 21. Distinctions from the nature of the power — 1. Powers to appoint - - - - - 481 22. 2. Power of revocation ----- 482 23. 3. Power of jointuring ----- 483 25. Will executing a power always revocable - - 484 26. Result of the authorities - 484 27. Power of revocation may be reserved, although power is simply collateral - 485 28. But power may by implication exclude a power to revoke ------- 486 29. Power of revocation required to be reserved - 487 30. Mere authority countermandable - 487 31. Pcrrot v.Perrot, with observations - 487 32. Power of revocation does not make appointment of personally, testamentary - 490 CONTENTS. XXIX Page 33. Direction by equity to make an appointment by a given day not complied with if power of revoca- tion reserved _--___ 490 CHAPTER VII. OF THE ESTATES WHICH MAY BE CREATED UNDER POAVERS OF APPOINTMENT. Section I. — What Estates may be created in point of Perpetuity, 491 1. What estates may be created in original instru- ments ------- 491 2. Unborn son tenant for life, but his children cannot take as purchasers ----- 492 3. But child in ventre sa mere a life in being - 494 4. General power, warrants same limitations as a seisin in fee - - - - - -495 5. Particular power only such as would have been good in the settlement - - - - - 498 6. Distinction where power is created by will - - 498 7. Power to a person in esse to appoint amongst any issue, may be exercised amongst those bom in his lifetime ------- 499 8. Executed by will, construed as a proper will - 499 Section II. — Of the Estates which may be created under Powers in general ------- 500 2. Fee may pass although power do not contain words of inheritance ------ 500 3. Wykham v. Wykham, with observations - - 501 4. Power to dispose authorizes the gift of a fee - 503 7. So if the words are in such manner and form - 505 9. Kenworthy v. Bate. ------ 507 1 0. Estate tail in objects although there is a power to appoint to them ------ 507 11. Portions cannot be appointed before they are wanted _______ 508 12. Unlimited power to charge authorizes a gift of the whole -------- 508 13. Power to grant the land aidhorizes a charge on it, 509 16. But equitable execution only - 510 19. Whether a rent-charge may be appointed under the words estates or interests - - - - 512 XXX CONTENTS. Page •2'2. Lease for years bud under power to lease for lives - - - 514 24. So of jointures - - - - - -514 26. But supported in equity - - - - -516 28. Result - - 517 30. Less estate may be given under power to appoint the fee - - 518 32. So of chatte, interests, Sfc. - - - - 519 33. Power for term absolute or on lives - 520 36. Power to grant an interest in p>ossession, a rever- sion bad ------- 522 37. Where only one object left, determinable interest cannot be appointed ----- 522 42. Power confined to division ceases when only one object -------- 526 43. Unless he does not take in default of appointment : 526 Boyle v. Bishop of Peterborough - - - 527 45. Reade v. Reade, with observations - 530 Section III. — What acts Powers authorize - 537 1. Powers of partition, sale and exchange, authorize •what acts ---__-_ 537 2. Power may be exercised over fund directed to be converted ------- 538 3. Power to sell and raise a sum, authorizes a mort- gage -------- 538 4. Power to raise a sum authorizes a sale - - 538 6. Power to sell or mortgage, exhausted by a mort- gage -------- 539 8. Mixed fund, may be given separately amongst ob- jects -------- 539 9. Power to charge a sum includes interest - - 540 13. Power confined to part of the estate must be so ex- ecuted ------- 541 14. But power to charge an estate may be exercised over any portion - - - - - -541 15. Jenkins v. Keymis. II010 power to charge may be executed ------- 542 16. Power to raise and borrow, executed by a grant of a rent-charge ------ 542 17. General power to raise any sum authorizes a lease for lives for ever at a fine - - - - 545 CONTENTS. XXXI Page 18. Talbot v. Tipper. Limited power enlarged by construction „-_--- 547 21. Power to devise any part extends to the whole - 551 23. Power to charge reasonable portions - 552 24. Observations on the cases ----- 553 26. General power restrained by construction to chil- dren -------- 553 Section IV. — Of the Construction of Limitations in Instruments executing Powers _...-- 556 1. Technical expressions necessary in limiting estates by deed under powers - - - - - 556 2. Life estate only where no words of inheritance - 556 3. Life estates only under limitation to A for life, re- mainder to his issue male - 556 4. Limitation for years and limitation to heirs of the body cannot coalesce ----- 556 5. But equally to be divided creates a tenancy in common ------- 557 6. Wills in execution of powers construed as proper wills -------- 557 7. 9. Estates in fee or in tail without proper words of inheritance ------ 558. 559 11. Where executors take in that character - - 560 Section V. — Where an exclusive appointment is authorized - 561 1. How exclusive powers should be created - - 561 3. What words give an exclusive power - - - 561 4. What words do not give an exclusive power - 562 5. Where an exclusive appointment is authorized by implication ------- 564 9. Where it is controlled by construction - - 565 10. Where it is confined to one object - 567 Section VI. — What is deemed an illusory Appointment - - 568 1. Act for altering the law not retrospective - - 568 2. Distinction between law and equity as to illusory appointments ------ 568 3. Proportions, held illusory ----- 569 4. Butcher v. Butcher ------ 570 6. Result -------- 572 7. Share unappoinled, if substantial, sufficient - - 574 8. Last appointment only lad - 575 9. Small share might be justified by circumstances - 515 XXX11 CONTENTS. Page 1". A provision aliunde - 13. If appointment illusory, fund goes equally - - 579 15. 77/c / 3. Bad at law - - - - - - -ii. 81 5. Unless excess is by a distinct limitation - - ii. 82 7. But if the two limitations make one estate, bad - ii. 83 8. Charge of a larger sum than warranted, good in equity - - - - - - - ii. 83 9. So if time is wrong at which the interest begins - ii. 84 10. A privilege limited by the donee of the power to himself, not warr -anted, void - - - ii. 84 1 1 . Appointment though wrong, valid, if the interest is defined in the creation qf the power - - ii. 84 12. Equitable estate instead of legal, bad - - ii. 85 13. Bland v. Bland, with observations - ii. 86 14. Excess qf interest not corrected at law by reference to the power * ■» - - - - ii. 87 15. Covenant for enjoyment limited to life does not cure excess in an appointment infce - - ii. 89 Section III. — Of Excess in the Conditions annexed to the Estate, ii. 90 1. Conditions only, void ----- ii. 90 2. As to release a debt - - - - - ii. 90 3. Or to allow other persons to share - - - ii. 91 c2 XXXM CONTEN'I- Pcge 4. Payment at a tvrongday, that direction only, void, ii. 91 5. So a gift over in a certain event - - - ii. 91 6. Condition that the gift shall be a satisfaction, van/ - - - - - - -ii. 91 7. Charge of debts not authorized, that only void - ii. 92 \K Valid appointment separated from invalid ones in the same deed - - - - - ii. 93 CHAPTER X. OF EQUITABLE RELIEF IN FAVOUR OF DEFECTIVE EXECUTIONS OF POWERS. Section I. — Where there is a meritorious Consideration in the Appointee - - - - - - ii. 94 1. Origin of jurisdiction : confined to equity - ii. 94 2. Stands on the same ground as surrenders of copyholds - - - - - - n. 98 3. Purchaser, mortgagee, lessee, relieved - - ii. 100 4. Creditor also - - - - - - ii. 100 5. Wife and child also - - - - - ii. 100 6. Charity also - - - - - - ii. 100 7. Husband not relieved - - - - -ii. 101 8. Natural child not - - - - -ii.101 9. Grandchild not - - - - - -ii. 101 10. Father, mother, brother, sister, nepheto, cousin, not - - - - - - -ii. 101 11. Volunteer not - - - - - ii. 102 12. Legal consequences not relieved against - - ii. 102 13. Defective appointment by married woman aided, ii. 103 14. Sir Thomas Plumers opinion - - - ii. 103 15. Creditor, SfC. must be such of donee, semble - ii. 105 16. Observations on Wilkiev. Holmes - - - ii. 105 17. Defective execution of a poivcr of revocation not aided for the settlor himself - - - ii. 106 21. No relief indirectly for creditors - - - ii. 109 22. Claimant must have a preferable equity - - ii. 110 24. Prior appointee may become a trustee - - ii. 112 25. Purchaser from an appointee claiming relief not entitled to higher equity - - - - ii. 112 26. Relief granted against purchasers - - - ii. 113 29. Relief granted although the settlement was voluntary - - - - - -ii. 115 CONTENTS. XXXV11 Page 3i. Whether a surrender can be supplied against an heir unprovided for - - - - - ii. 116 32. Application of 'the doctrine to powers - - ii. 118 34. Relief may be given, although against parties having equal equities, as children - - ii. 119 35. Execution of power by donee who has cove- nanted to pay off incumbrances - - - ii. 121 36. No relief under the Act abolishing recoveries against defective executions of the authorities or against protector - - - - ii. 122 Section II. — Of the Relief with reference to the Instrument executing the Power - - - - - ii. 123 2. Agreement to create a power, if for censidera- tion, defect aided - - - - - ii. 124 5. Defective execidion aided if reduced to "writing — covenant, contract, will, letters - - ii. 125 6. Recital sufficient - - - - - - ii. 125 7. Answer in Chancery sufficient - - - ii. 125 8. Covenant in the settlement creating the power sufficient - - - - - - ii. 126 9. Sale and payment sufficient - - - - ii. 126 10. But there must be a clear reference to the fund, ii. 127 11. Contracts enforced as defective executions - ii. 127 13. Contract to exercise a poxver when in possessio?i, enforced - - - - - - - ii. 129 14. Coventry v. Coventry: contract under the power or otherwise - - - - - - ii. 130 15. Deficiency in quantity of jointure lauds tnade good, ii. 130 16. Husband not entitled to w'fes portion till join- ture secured, as agreed - - - - ii. 131 17. Parol contract not binding on remainder-man - ii. 131 1 8. Unless, when in possession, he lie by and allow expenditure - - - - - - ii. 132 19. Farol lease from year to year void against re- mainder-man - - - - - - ii. 132 20. Contract, fa breach of trust, relieved against, ii. 132 21. To make a lease not warranted by the poxver not enforced - - - - - - ii. 133 22. Unless a performance pro tanto would be valid, ii. 134 23. Remainder-man may enforce the contract of tenant for life ------ ii. 1.J4 c 3 KXXV111 CONTENTS. Page "24. ])c/irir:e formal instruments aided, as, - - ii. 135 'J.O. Wttt instead of a deed ii. 135 26. Three witnesses instead of two - ii. 136 27. Will not under seal as required - - - ii. 136 28. H ill aided, if defective, although of real estate, ii. 136 29. Power itself rectified in a settlement - - ii. 138 Wo relief contrary to intention of creator of power: as deed instead of a will - - n. 138 31. Or where trustees sell the estate, and the tenant for life the timber - - - - ii. 139 32. Or the interest determined according to the power and the appointment - - ii. 140 33. Relief where too much included for jointure - ii. 140 34. Or a different interest created to secure it - ii. 141 riOM III. — Of Relief with reference to the nature of the Power - - - - ii. 142 1. Powers to jointure, portion, sell, revoke, or ap- point, aided - - - - - - ii. 142 2. Leases by tenant in tail, and the like, cannot be aided - - - - - ii. 142 3. Leases of every species of property over which equity has control, aided - ii. 143 4. So under the common power in settlements - ii. 143 5. Not if improper covenant introduced - - ii. 144 6. 8. Whether mere lessee at rack-rent can be re- lieved - - ii. 146, 147 8. Lease tinder a general power, defect aided - ii. 147 9. Campbell v. Leach - - - ii. 148 10. Establishes right in a lessee, who is in the nature of a purchaser, to relief - ii. 149 11. Shannon v. Bradstrcet - - - - - ii. 150 Si ( HON IV. — Of equitable Relief where there is no meritorious Consideration in the Appointee - - ii. 152 1. Fraud, relieved against - - - - ii. 152 2. Stranger may be relieved where person interested withholds the deed - - - - - ii. 152 3. Or a wife is prevented by her husband - - ii. 152 5. Or the remainder-man lie by and permit expen- diture - - ii. 153 But fraud must I * ii. 154 (. ON TEXTS. XX XIX Page 7. Surprise, a ground for relief - - - ii. 154 8. 9. Accident or disability, qu. - - ii. 154, 155 10. Disability to sign, from the gout, not aided - ii. 155 Section V. — Of Election and Satisfaction - ii. 157 1. Election ; forfeiture not compensation - - ii. 157 2. Confined to equity ii. 159 3. Applies to all persons and all interests - - ii. 159 4. Copyholds, freeholds : deeds, wills - - - ii. 159 5. Conditions not a case of election - - - ii. 159 6. Election against heir although he take by descent, ii. 159 8. Election by parent will not bind his children - ii. 161 9. Election although donor supposed he had power, ii. 161 10. Election raised upon appointment to a party not entitled - • - ii. 161 11. Or an appointment to one of two parties en- titled - - ii. 162 12. Or where the donee delegates his power - - ii. 162 13. But not, if no other fund - ii. 162 14. Intention must appear on the instrument - - ii. 163 15. Although there is a declaration that election shall be raised - - - - - - ii. 163 16. Robinson v. Hardcastle - - - - ii. 163 17. No election when by construction parties entitled to take absolutely - - - - - ii. 164 19. No election against legatee as to real estate, if devisor aii infant - - - - - ii. 165 20. Or will attested by only two witnesses - - ii. 165 21. Unless iu the case of an express condition - ii. 166 22. Thellusson v. Woodford: after-purchased es- tates - - - - - - - ii. 167 23. No election until funds cleared - ii. 168 24. Party bound by acquiescence - - - ii. 168 26. Court elects for infants and married women - ii. 169 27. Consequences of election - - - - ii. 169 29. Satisfaction - - - - - - ii. 170 Section VI. — Of Non-execution - - - ii. 172 1. Not aided even in case of sudden death - ii. 172 2. Power not executed for creditors - - - ii. 173 c4 ii. 179 ii. 179 ii. 180 ii. 181 ii. 182 ii. 183 \1 CONTENTS Page Distinction where a potoer is in the nature of a trust - - ii. 173 4. Articles creatine;; a power held to give an in- terest - - - - - - ii. 174 6. Harding v. Glyn : power a trust, although ex- elusive - - - - - - - ii. 175 9. Observation on the eases - - - - ii. 176 10. Power with a gift by implication - - - ii. 177 11. Duke of Marlborough v. Godolphin, a power only: doubted- - - - - - ii. 177 12. Distinction between that case and Harding v. Glyn - - - 13. Crossling v. Crossfing, with observations 14. Poxicr to appoint to one of a class, no gift by implication ------ 15. Cases establishing the implication - 20. Gift implied from the limitation oxer 2 1 . Implication co-extensive with poixer 22. Implication rebutted by gift over in default of appointment - - - - - - ii. 183 23. Gift to the objects with a power of distribution, ii. 184 28. Power in inaccurate settlement construed to give the p?operty - - - - - - ii. 186 29. What is absolute property ivith a simple request and not a power - - - - - ii. 187 31. Wright v. Atkyns - - - - ii. 187 32. Hencage v. Lord Andover - - - - ii. 188 35. Donee not deprived of power ■■ ii. 189 38. Court never exercises a discretionary power - ii. 190 39. Gift implied and power not exercised; an ecjual distribution - - - - - -ii. 191 CHAPTER XI. OF RELIEF AGAINST THE ACTUAL EXECUTION OF POWERS. Section I. — Of void Executions by the general Rule of Law, ii. 192 2. Deed executing a power void upon same grounds as deeds in general - - - - ii. 192 Is by rasure - - - ii. 193 CONTENTS. xli Page 4. Not by cancellation - - - - - ii. 193 5. Void where consideration bad, as stifling a pro- secution - - - - - - - ii. 193 6. So where an inducement to prostitution - - ii. 193 7. Contra where prccmium pudicilice - - - ii. 194 9. Duress avoids the deed - - - - ii. 194 10. Drunkenness also - - - - - ii. 195 11. Lunacy also _._.-. ii. 195 ] 2. So where the whole transaction is a fraud - ii. 196 13. Mere question of valid execution to be tried at law ------- ii. 196 Section II.— Of 'void Executions in Equity only - - - ii. 197 1. Grounds of equitable jurisdiction - - - ii. 197 2. Trustee joining in appointment by misrepresenta- tion, void - ~ "• 200 3. Appointment to one child upon a bargain, void, ii. 201 4. Appointment of a jointure partly for husband's benefit, void - - - - - ii. 201 5. So an advance of money by the husband to in- crease his power ----- n. 202 6. Jointures affected only pro tanto by fraud - ii. 202 7. Lord Hardwicke's opinion, the same rule applied to an appointment to a child - - - ii. 203 8. 10. But the latter decided to be void in toto, ii. 203. 206 9. Distinction between the two powers - - - ii. 205 1 1 . Son appointee, relieved as entitled in default of appointment, though particeps criminis - ii. 206 12. Purchaser liable to the same equity - - ii. 208 13. 14. Where he is safe : M' Queen v. Farquhar, ii. 208, 209 15. Anger, fyc. not a ground to impeach an appoint- ment .-■■_•-- ii. 209 16. Davis v. Uphill. Where a parent having a power may take a benefit - - - - ii. 210 17. Appointment to an inj ant for benefit of donee, bad - ii. 211 18. Appointee with notice of agreement not to exe- cute power, bound - - - - - ii. 211 19. Where a purchaser under a power of sale is bound to sec proper rents are reserved - - ii. 211 \hl CON! i.n I- Page 20. Appointment to a younger child void upon his becoming eldest - - - - ii. 212 '11. Marriage brokage avoids an appointment - ii. 214 And the interest created will be set aside in toto for the remainder-man - - - - ii. 214 CHAPTER XII. HOW ESTATES GO IN DEFAULT OF OR WHERE THERE IS A BAD APPOINTMENT. Section I. — Of Limitations in default of Appointment - - ii. 216 1. Estates in default of appointment, vested - - ii. 216 2. Gifts by implication in default of appointment - ii. 217 3. Gifts accelerated where power void - - - ii. 217 4. General power and general gift in default of appointment, restrained by intention - - ii. 217 5. " In default thereof," where it refers to appoint- ment - - - - - - - ii. 218 6. Jn default of joint appointment, a poiver to sur- vivor, whether both can be exercised - - ii. 218 7. Fund vested at twenty-one, yet prior power remains - - - - - - ii. 221 8. Of appointments to surviving children, with reference to rested interests - - - - ii. 222 9. 15. Amongst, creates a tenancy in common in a gift from a power, by implication - ii. 223. 226 10. 12. Issue of a child, although objects of a power, may only take by substitution if no appointment - - - ii. 224, 225 11. Longmore v. Broom ----- ii. 225 L3. Then, where an adverb of relation - - ii. 225 14. Poiver and gift over confined to the same objects on a contingency - - - - - ii. 226 16. Folkes v. Western: effect of advancement - ii. 226 1 7. Pitt v. Jackson, contra ii. 228 18. 19. Observations on the cases - - ii. 229, 230 20. Operation of common clause in settlements as to advancements - - ii. 231 CONTENTS. Xliil Page 21. 22. Noel v. Lord Walsingham ... ii. 233 23. Father may keep portion on foot upon advance- ment - ii. 234 24. Duke of Bridgwater v. Egerton - ii. 234 25. Where appointee of part is entitled to a share of residue ------ ii. 235 25. 26. Where appointment is in full of share ii. 235. 236 27. A donee of a power may take under a general description, in defaidt of appointment - - ii. 237 28. Gift to one for life with a power ; in default to executors, Sfc., property - ii. 237 29. Part badly appointed goes as in defaidt of ap- pointment - - - - - -ii. 238 30. Povoer not controlled by gift in defaidt of ap- pointment ------ ii. 238 31. Where a povoer is confined to a default of previ- ous limitation ------ ii. 239 32. Mistake in settlement corrected: in defaidt of ap- pointment, instead of issue - - - - ii. 239 CHAPTER XIII. OF RELIEF AGAINST POWERS. Section I. — Of the Relief afforded by the 27 Eliz. c. 4, against Powers of Revocation - - - - ii. 240 1. Settlements with powers of revocation voidable by statute - - - - - - -ii. 240 2. Act does 7iot extend to partial powers - - ii. 241 3. Conditional power within the Act - ii. 242 4. Rower with restrictions not within the Act - ii. 242 5. Immaterial that the settlement was for valuable consideration ------ ii. 242 6. Future power within the Act - - - - ii. 243 7. Extinguishment of power unimportant^ - - ii. 243 8. Informal revocation not aided by the Act - ii. 244 Section II.— Of the Person who may claim the Relief - - ii. 245 1 . Purchaser only to be relieved - - ii. 245 \li< ( ONTENTS. l'age 2. Bonajides and adequate consideration required, ii. 246 . / ee, mortgagee, conuzee, a purchaser - - ii. 246 \. Settlement before marriage sufficient - - ii. 246 So agreement before marriage, or portion after- toards - - - ii. 247 6. If agreement before marriage, and settlement after it, the agreement must be in tvriting, semble ------- ii. 247 7. Wife's concurrence in settlement a valuable con- sideration ------ ii. 250 8. So vpon a separation, a covenant to indemnify the husband against the ufe's debts - - ii. 251 9. Voluntary settlement after marriage not aided by statute ------- ii. 252 10. What interest must have been contracted for - ii. 252 11. Where a conveyance is void against creditors under 13 Eliz.c. 5 - ii. 253 12. Claim of creditor by covenant before breach - ii. 253 CHAPTER XIV. OF A POWER TO APPOINT TO RELATIONS. Section I. — Of the extent of a Gift to Relations - - - ii. 255 2. Includes those entitled under statute of distribu- tions ------- ii. 256 3. Extends to reed estate : includes maternal rela- tions - ii- 256 4. And to descendants - - - - - ii. 257 5. A child in ventre sa mere, entitled - - - ii. 257 6. Near relations, friends, fyc. - - - - ii. 257 7. Poor relations, fyc. within the same rule - - ii. 258 9. Most necessitous of my relations - ii. 259 10. Kindred, next of kin, Sjc. nearest entitled - ii. 259 11. Family, to uhom it extends - - - - ii. 260 12. Wife excluded in gift to relations - ii. 260 13. Statute controlled by direction as to tenancy in common, fyc. ------ ii. 260 15. Parol evidence inadmissible - - ii. 261 CONTENTS. xlv Page Section II. — To what Relations an Appointment may be made, ii. 262 1. Under power of selection, statute not the guide - ii. 262 2. Contra under a power of distribution - - ii. 262 3. Where the class is nearest relations - - ii. 263 6. Harding v. Glyn ----- ii. 264 7. Power includes a gift by implication - - ii. 264 8. Although it be a power of selection - - ii. 265 9. Although bill fled, donee may appoint - - ii. 265 10. Where the power extends to representatives - ii. 265 11. In default of appointment the statute rules - ii. 266 12. Where the relations take as tenants in common - ii. 266 15. Where the power is to select, the gift is to those who survive the donee - ii. 268 20. Unless the gift is immediate - - - - ii. 270 21. Pope v. Whitcombe : relations at death of doyiee entitled, although the power is to distribute - ii. 270 CHAPTER XV. OF A POWER TO APPOINT TO CHILDREN. Section I. — Of the Objects who are within the Power - - ii. 272 2. Grandchildren not included - ii. 273 6. Where a contingent gift over to grandchildren does not affect the previous gift to a child - ii. 278 9. Power to advance on marriage for the benefit of the children, authorizes a strict settlement 10. No appointment authorized to execidor of a de- ceased child __---- 1 1 . But with the child's privity a strict settlement is valid ------- 12. Although the power is not referred to 14. So first an appointment, and then a settlement by agreement - 15. Such a settlement is voluntary - 17. A child in ventre sa mere is a child living 18. Where children of a second marriage not entitled, ii. 285 19. Where confined to children living at donee's death, ii. 285 21. How a power to appoint toheirs of the body may be executed ------ ii. 286 25. A younger child becoming eldest loses his right ii. 290 ii. 280 ii- 281 ii. 281 ii. 282 ii. 282 ii. 283 ii. 285 xlvi CONTENTS. Page 27. Where the eldest child is considered as a younger one ... ... ii. 292 28. Change of character must he before portions paid, ii. 293 30. Power to appoint to nephews does not include great-ncphews ------ ii. 293 Skction II. — Of the manner in which the Fund may he settled- ii. 294 2. Particular interests and contingencies, valid - u. 294 3. Where trustees may be interposed - - - ii. 295 4. Reversionary interest not sufficient - - - ii. 295 5. A power to a child to raise a sum, valid - - ii. 295 6. Appointment to separate use rf daughter, valid ii. 295 7. Whether an appointment to the husband is valid ii. 296 9. Conditions, how Jar valid - - - - ii. 297 11. Conditions invalid - ii. 298 12. Power to appoint to parents or their children, discretionary ------ ii. 299 Suction III. — Of a Power to raise Portions - - - ii. 300 1. Resemble powers to appoint a fund - - ii. 300 2. Whether conditions can be imposed - - - ii. 301 3. Where all younger children are included - - ii. 301 4. Liinitations over, fyc. valid - ii. 301 5. Portions cannot be made to vest before they are wanted - - - - - - - ii. 301 6. Excess in time of vesting, corrected - - - ii. 302 8. 10. Child dying before portion required, it sinks, ii. 303. 304 11. Interest may be charged - ii. 304 12. When raised under reversionary terms - - ii. 304 14. Interest is applicable for maintenance - - ii. 305 15. Past interest docs not sin/c with portion - - ii. 305 16. Rate of interest ------ ii. 30.5 17. Where interest payable by a jointress - - ii. 305 18. Portions postponed by a jointure created under a power - - - - - - - ii. 306 20. Construction of power in articles - - - ij # 306 21. Implication of survivorship in articles - - ii. 306 22. Power to appoint portions not authorized by ar- ticles under general words - - ii. 307 CONTENTS. \l\ii CHAPTER XVI. OF POWERS TO JOINTURE. P;ige 2. May be exercised in favour of successive wives - ii. 309 3. Unless confined by intention - - - - ii. 309 4. Repeated executionsfor the same "wife good - ii. 310 5. Not exhausted by a declaration that remainder- man shall take the surplus - - - - ii. 310 7.12. Power cannot be exceeded as to quantity or value of land to be charged - - ii. 311. 313 8. Must be to the "wife herself - - - - ii. 311 9. Chattel interest cannot be substituted Jbr freehold, ii. 312 10. Insufficiency of lands made good - - - ii. 312 11. To xvhat extent wife is relieved - - - ii. 312 12. Husband not entitled to her fortune if jointure invalid - - - - - - -ii. 313 14. May be agreed to be exercised by remainder 'man, ii. 313 15. 16. What agreements bind the power - - ii. 314 17. Where the jointure may be clear of taxes - - ii. 315 21. Where articles shall be construed by the power - ii. 317 22. Taxes confined to time when power was execided, ii. 317 23. Value to be taken at the same period - - ii. 317 25. 26. Covenant confined to power, where there is mistake - - - - - - ii. 319, 320 27. Where the power extends to the whole estate - ii. 320 28. Where the jointure will not bar dower - - ii. 320 29. If required, equitable bar sufficient - ii. 320 31. Whether if to be in bar of dower, it must be be- fore marriage - - - - - - ii. 321 32. Alterations by statute in the law of dotver - ii. 322 33. Appointment upon condition, appointor may re- lease condition - - - - - ii. 322 34. Jointure in proportion to fortune, how the ledter should be paid - - - - - ii. 322 35. 36. Or settled ------ ii. 323 37. Fortune received after husband's death not taken into account ------ ii. 324 38. Fraudulent execution - - - - - ii. 324 39. Death-bed execution - - - - - ii. 324 xlviii CONTENTS. CI I IPTER XVII. dl POWERS in LEAS! ■ Page Section I. — Of the general Rules of Construction applicable to this Power ------ ii. 327 2. General rule of construction - - - - ii. 328 3. Application of decisions under enabling and re- straining statutes ----- n. 329 4. Where suspended or extinguished - - - ii. 329 5. Contracts for leases under powers enforced : no decree for damages - - - - - ii. 329 6. Void lease not set up by acceptance of rent - ii. 330 7. But it renders notice to quit necessary - - ii. 331 9. Same rules apply to equitable estates - - ii 332 10. When a lease operates out of the interest and may be confirmed - - - - - - ii. 332 11. Confirmation by a tenant for life not binding upon remainder-man - - - - ii. 332 12. If lessee allowed to rebuild, fyc. by remainder- man., the latter is bound - - - - ii. 333 15. No relief in equity by way of compensation for expenditure - - - - - - ii. 333 17. Acceptance of rent under void lease does not bind remainder-man by a covenant to renew - ii. 334 18. J. ease may be granted to a trustee for the lessor, ii. 334 L9. Power may be executed toties quoties - - ii. 334 20. Where lease will cease on non-payment of rent ii. 335 22. To whom the power extends - - - ii. 335 23. Where building lease not authorized by articles, ii. 336 24. Power by statute to infants and femes covert to renew ------- ii. 336 25. Like power to iiifant to lease his own estate - ii. 337 26. And to committees of lunatics - - - ii. 338 27. How trustees of a power of 'leasing should act - ii. 338 28. Operation of a lease under a power, and of cove- nants in ?V ------ Ji. 338 Section II. — What may be demised under different Powers - ii. 339 2. What are lands usually letten - - - ii. 339 5. By whom the lettings should have been made - ii. 341 7. Embrace every species of demise - - - ii. 343 CONTENTS. xlix Page 8. Where lands not before let are not within the power ------- ii. 343 14. Where they are within it, and may be let with- out rent ------- ii. 346 18. Observations on the cases - ii. 349 19. Evidence of former lettings - - - - ii. 351 20. Distinction between opened and unopened mines, ii. 351 21. Extent of a power to let lands let for lives - ii. 352 22. Extent of an exception of demesnes - - - ii. 352 23. Property leased should be properly described - ii. 353 Section III. — Of the Term which may be granted - - ii. 353 1. 4. Where a chattel interest depending upon lives may be granted - - - - - ii. 354 2. Where only a lease for years or a lease for lives may be granted - - - ii. 354 3. Where the lease need not be dependant upon lives ------- ii. 354 5. 6. A less term may be granted - - - ii. 355 7. A power may be reserved to the lessor to deter- mine the lease ------ ii. 355 8. Whether such a power to the lessee is valid - ii. 355 14. What amounts to a power of leasing for an un- limited term ------ ii. 362 18. For what lives a lease may be made - - ii. 364 20. 21. Lease for lives or for years, where valid, ii. 365, 366 22. Lease for two lives good under power to lease for three lives ------ ii. 366 Section IV.— Of Leases in Possession and in Reversion - ii. 367 2. Nature of a lease in reversion, of a lease info- turo, and a lease in remainder - - - ii. 368 3. Meaning of lease in reversion, where the power is to lease for life - - - - - ii. 369 4. Leases in reversion for years : concurrent leases, ii. 370 6. General power authorizes only leases in pos- session ------- £i. 370 8. Although the estate is then in lease - - ii. 371 12. So if the power is to lease in possession - - ii. 376 d i C0NTEN1 Page 14. Coventry v. Coventry, with observations - - ii. .377 19. Lease in reversion bad, under power to lease for years determinable on lives - - - ii. 381 20. Where leases in reversion are authorized - - ii. 382 21.23. Leases in possession and reversion not au- thorized ----- ii. 383. 38.5 'J4. Power in disjunctive for years or lives, both not authorized ------ ii. 385 25. Where lease in reversion authorized, repeated leases bad - - - - - - ii. 386 26. Lease in reversion should be without an interval, ii. 386 27. Power over reversion to (ease in possession or reversion - - - - - - ii. 386 29. Power to lease in possession, lease in futuro, if next day, void ------ ii. 387 30. 32. Construction of "from the day of the date," Sfc. - - - - - - ii. 387, 388 33. Lease valid if not executed, until it is to com- mence ------- ii. 389 34. Effect of contract for a lease at a future day - ii. 390 35. Lessee from year to year attorning, lease in possession, good - - - - -ii. 390 36. Presumption of surrender of prior lease - - ii. 391 37. Surrender in law by new lease to the old tenant, ii. 391 38. Right of outgoing tenant to depasture no objec- tion to lease in possession - - - - ii. 392 39. Lease in reversion invalid, although term in power not exceeded altogether - ii. 392 40. Lease in reversion not warranted by former leases, fyc. - - - - - - ii. 392 41. Leases may be renewed - ii. 393 43. Covenant for renewal not warranted docs not avoid the lease - - - - - ii. 393 44. Unless fraudulent - - - - - ii. 394 4~>. Purchaser bound to renexv under covenant by tenant for life, not warranted - - - ii. 394 ; >n V. — Of concurrent Leases - - - - - ii. 397 1. Of Bishops' concurrent leases - - - ii. 397 < ONTENTS. li Page 3. Read and Nasties case - - - - - ii. 398 4. Fox v. CoUyer - - - - - ii. 399 5. Whether the doctrine applies to leases under powers ------- ii. 402 6. Doe v. Calvert, with observations - - - ii. 407 7. Roe v. Prideaux, with observations - - ii. 408 8. Bridgemans distinction - - - - ii. 410 9. New lease operating as a surrender in law of the old one, valid - - - - -ii. 411 10. New or concurrent leases, where synonymous - ii. 411 Section VI. — Of the Rent to be reserved - ii. 412 1 . Rent under a power of leasing a proper rent - ii. 412 3. Where best rent required, improvements cannot be allowed for - - - - - - ii. 413 5. If fine taken, lease void, but money may be ex- pended on improvements - - - - ii. 414 6. Doe v. Rogers, with observations - - - ii. 415 8. If fine be taken contrary to prohibition, lease void, though the best rent is reserved - - ii. 418 9. Fraud not necessary to relief - - - ii. 419 10. Price v. Assheton - - - - - ii. 419 11. What power authorizes a fine in original leases ------- ii. 421 12. Rejected offers of higher rents not conclusive - ii. 423 13. Criterion of the best rent - ii. 423 14. 15. Bad if the best rent is not reserved for the whole term ------ ii. 424 16. Nexv lease upon surrender of old at an increased rent, valid - - - - - - ii. 424 17. Where from extent of property best rent cannot be known, lease bad - - - - - ii. 425 18. Best rent in building leases, fyc. - ii. 425 19. Bad covenant for renewal upon the same rents does not avoid the lease - - - - ii. 426 20. Rent for time past valid, but must run for the whole term - - - - - - ii. 427 21. Authority to deduct repairs not done by landlord, if best rent still left, valid - - - - ii. 428 d 2 Hi CONTENTS Page 22. What it the ancient rent - - - ii- 430 23. If here omission of covenants is a fraud on the power ------- ii. 430 25. Usual or most rent - - - - - ii. 431 26. Rent includes produce of a mine - - - ii. 432 27. Reservation of ancient rents, 8fC. must be as be- fore ... - ii. 432 30. 31. Lease qfpart at a rent pro rata, valid, ii. 433. 434 32. Reservation out of old estate and new buildings, valid - - ". 435 33. General reservation which may be rendered cer- tain, valid - - - - - - ii. 435 34. 41. Orbyv.Mohun - ii. 437. 443 35. Half-yearly payments valid - - - - ii. 438 37. Rent cannot be received before or after the day, ii. 440 38.55. Several demises in one deed - - ii. 441. 451 40. How v. Whitfield, with observations - - ii. 441 42. Where a lease of opened mines is good, though joint with unopened mines not within the power ------- ii. 444 44. Reservation of one rent for an estate, part of which is not in the power - ii. 445 47. 52. Whether in such case there can be an ap- portionment - - - - ii. 446. 450 53. Rides established ------ ii. 450 54. Lease at one rent of an estate, one moiety of which is held under a power - ii. 451 56. Reservation to lessor, his heirs and assigns, fyc. valid ------- ii. 452 58. Although lessor not the settlor - ii. 453 59. Where no rent needs be reserved - - - ii. 454 Section VII. — Of the Covenants and Conditions to be ob- served ------- ii. 455 2. Reasonable time may be allowed for re-entry, al- though the power is silent - - - - ii. 456 3. 7. So it may be qualified, by lawful demand, and no sufficient distress - - - ii. 456. 462 4. Coxe\. Day ... . ii. 4.57 5. Lord Jersey's case - - - - ii. 457 CONTENTS. Hii Page 6. Coxe v. Day overruled by Lord Jersey s case, ii. 460 8. Period fixed by poiver may be shortened - - ii. 465 9. Where qualifications are confined to one class of leases ------- ii. 465 10. Power to commit tvaste contrary to 'prohibition, lease void - - - - - - ii. 466 11. Counterpart ______ ii. 466 12. 13. What covenants are required ivhere power is silent ----- ii. 466, 467 14. Usual covenants required must be inserted - ii. 468 16. Covenant to build necessary inhere building lease is to contain reasonable covenants - ii. 469 17. Power to lease for new building, or for rebuild- ing and repairing - - - - - ii. 469 18. Where covenant by the lessor to repair, SfC. binds the inheritance - - - - - ii. 473 19. Ancient boons required to be reserved, includes covenants ------ ii. 474 20. And omission of old covenant to pay taxes, bad, ii. 474 21 28. Improper covenant binding the reversion avoids the lease - - - - ii. 475. 477 22. Void lease not supported because lessee has done what ought to have been required - - ii. 475 24. Lessee's covenants enure to remainder-man - ii. 476 25. Although not required by the power - - ii. 476 26. So a power of re-entry - - - - - ii. 477 27. 28. And covenants by a lessor run with the land, ii. 477 30. Debt lies against the lessee - - - - ii. 479 CHAPTER XVIII. OF POWERS OF SALE, AND EXCHANGE AND PARTITION'. 2. How they should be created - - - - ii. 48 1 4. What limitations they authorize - - - ii. 482 5. Where the appointment may be to a trustee - ii. 483 6. Where the power is authorized by articles - ii. 484 8. Or by a will directing a settlement - ii. 486 10. Where in a settlement by a remainder-man, a prior tenant for Ife may join and raise an immediate power - - - - - ii. 488 < <>vn:\ i>. 11. L2. Where the heirs of a deceased trustee of a power must concur - - - - ii. 488 13. Where articles are in that respect duly followed, ii. 489 1 3. Ware v. Polhill, with observations - ii. 492 16. Unlimited powers of sale and exchange valid - ii. 494 19. Whether they may be exercised beyond the line of perpetuity ------ ii. 496 20. Powers of sale upon conditions - - - ii. 497 22. Doe \. Martin, with observations - - - ii. 498 23. Where the receipt of the trustees is sufficient - ii. 501 28. Observations on the cases - - - - ii. 503 29. How for, in case of an invalid appointment, a substituted estate is charged - - - ii. 504 30. Estate unconverted by a trustee remains real estate ------- ii. 504 32. Poiver of partition does not authorize sale or exchange ------ ii. 504 Whether a partition is within a power of sale and exchange ------ ii. 504 34. Partition may be by circuity under power of sale ------- ii. 507 35. Payment for owelty of exchange valid - - ii. 507 36. 39. Whether by accession of fee ■powers merge, ii. 508. 510 38. Where power may be executed xvhilst trust re- mains for any ------ ii. 509 40. Control of equity" over trustees of the powers - ii.511 41. For what object the powers should be exercised, ii. 51 1 42. Not for a rent-charge - - - - -ii. 512 43. Tenant for life not entitled, on sale of estate, to value of the timber - - - - ii. 51 3 44. Unless cut before the sale • ii. 515 45. Where the whole estate may be sold - - ii. 515 46. Where the money may be applied to pay debts - ii. 516 47. Tenant for life may himself buy or exchange - ii. 517 50. Cannot defeat his incumbrances by joining in sale ------- ii. 519 51. 52. How far leases arc binding on a purchaser - ii. 520 53. Where a power of sale is not destroyed by a new settlement ------ ii. 520 CONTENTS. IV CHAPTER XIX. OF POWERS TO APPOINT NEW TRUSTEES. Page 2. Where the power is authorized by articles - ii. 526 3. How the power should be exercised in form - ii. 527 4. Where the power, contrary to the words, sub' sists after the death of all the trustees - - ii. 529 5. A continuing trustee within a power to the sur- vivor ------- ii. 530 6. Where the power distinguishes sets of trustees in classes ------- ii. 530 7. Where a new trustee should be appointed before the estate is sold - - - - - ii. 531 8. Where the trustee's discretion is controlled by equity - - - - - - - n. 531 9. Upon a bill filed, there will be inquiry - - ii. 532 10. Provisions where trustee is lunatic, Sfc. - - ii. 532 1 1 . Where equity will appoint new trustees - - ii. 532 12. Where under 1 W. 4, c. 60, s. 22. - - - ii. 533 13. 14. Where in cases of charities - ii. 533 INDEX TO CASES CITED OR INTRODUCED. Note — " v." follows the name of the plaintiff — " 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 success. A. Page ABBEY and Horseman - 186 Abbot i'. Burton - - - - 107 Abbott and Kennett - - ii. 17 Abel v. Heathcote, ii. 505, 506, 507 Abernethy and Boddington, 185 Abrahall and Lloyd - - - 177 Aburrow and Bennett, 386, 387, 403, ii. 586 Aclom and Vanderzee, 5G7, 569, 57 6 >577> ii-4. 16, 17, 225 Acton and Brian - - ii. 133 v. White - - - - 212 Adams v. Adams, 435, 466, 467, 485, ii.52, 58,67,74,81, 273, 359 v. Austen - - - - 403 Adamson ». Armitage - - 126 Addy v. Grix - - - 301,317 Adelmere and Pollexfen, ii. 587 Adney v. Field - - 440, ii. 139 Aguilar v. Aguilar - - ii. 297 Aguilar v. Lousada - - - 208 Aislabie v. Rice - - - - 128 Albany's case, 87, 88, 91, 98, 100 Alchiivand Doe - - 5C3, n. rage Aldborough (Lord) and Strat- ford - - ii. 133,139; 1 5°> *53 Alexander f. Alexander, 222, 5C2, 566, 569, "• 29, 69, 71, 73, 7 6 > 191, 238, 273, 280, 294, 295, 296, 298, 299 and Doe - - - ii. 464 Alcyn v. Belchier, ii. 202, 204, 321, 647 Alford v. Alford - - ii. 125, 129 Allanson v. Clitherow - ii. 310 Allen's case ----- 334 Alsop v. Pine - - - - ii. 3G4 Alwaters, vide Atwaters. Amby v. Gower - - - ii. 174 Ancaster (Duke of ) and Earl Tyrconnel, ,541, ii. 316, 318, 323 Anderson v. Anderson - 206, 207 v. Dawson, 210, 270, ii. 238 Andover (Lord) and Heneage, ii. 172, 188 Andrew and Maddison, 428, 552, 5 6 9>575, ii. 181,191, 223, 267, 280, 281, 296, 58G Andrew and Manning - 16, 18 Andrews's case - - 173 a INDEX TO CASES CITED OR INTRODUCED. Armitageand Adamson Arnold v. Bedford Arthur and Warren - Page Andrews i. Emmott, 386, 387, 388, ii. 585 and Jenney, 235, 237, ii. 17, 30, 254 Andrews and Mallison, ii. 280, n. Andrews v. Waller - ii. 117, 120 Angell and Brewster - ii. 486 Annandale (Marchioness of) v. Harris - - - - ii. 194 Annas and Danne - 334, 339 Anonymous (Bunb. 53) - ii. 152 (1 Cha. Ca. 241) - - 475 (1 Cha. Ca. 242) - - 485 (Dall. 58, pi. 5) - - 120 (Dyer, 314 a, pi. 97) - 274 (Dyer, 371 b, pi. 3) 134> H3 (Dyer, 288 a, pi. 30) - 224 . {2 Freem.224) - 522, ii. 80 (Gilb. Eq. Rep. 15) ii. 160, 169 (2 Kel. C. C. 6), 120, 503 (2 Leon. 220, pi. 276) 143, 349 (Lofft, 71) - - - - 80 (3 Leon. 71, pi. 108) 119, 121 (4Leon.4ijpl.no) - 121 (Mo. C08) - - - 12, 1 16 (1 P. Will. 327) - ii. 258 (l Stran. 584) 179, 47 C > 4 8 5 Anscombe and Baker - - 178 Anson v. Lee - 361, 367, 404 and Tudor - ii. 101,117 Anstrey (Inhabitants of ) v. Rex, 204 Antrim (Marquis of) r. Duke of Buckingham, 18G, 195, 201, ". 377 Antrobus and Morrice - ii. 430 Archer's case ----- 25 Ardesoife v. Bennett, ii. 1 59, 1G8 Page - 12G ii. 256 - 224 Arundel v. Philpot, 333, ii. 108, 173 Arundel (Lord) v. Earl of Pem- broke ------513 Ascott and Blockville, 267,301, ii. i5 fi Ascough and Evans, ii. 374, 397, 398,401, 402,403, 410 Ashdown and Stileman - ii. 247 Ashe and Hatter - - ii. 387 Ashton and Smith, ii. 102, 112, 124, 136 Askew and Carey - and Dingwell Assheton and Price, Astley and Evans Aston and Culpepper Astry v. Astry - - • Atkins and Essex and Wright, ii. 172, 187, 260 Atkinson and Ellis - - - 210 and Grayson, 266, n., 327 Attorney-General and Bar- ii. lGG, 1G7 - ii. 19 ii. 412,419 • - " 493 - ii- 498 ■ - - 5 6 9 ■ - - 209 nngton - - - v. Berryman v. Bradley - v. Buckland v. Burdet - " 129 - - 222 ii. 14, 17G - ii. 258 - - 2G7 and Doyley, 151, 222,259, ii. 2G6, 2G7, 2G8 v. Floyer v. Gleg - ■ v. Grady 11 v. Hamilton v. Jones - v. Moses - - »• 533 - - - 141 55, 221,230 - - ii. 50G - - 275, n. - - ii- 3^3 v. Countess of Portland, ii. 388 INDEX TO CASES CITED OR INTRODUCED. I'age Attorney-Gen. v. Pearson, ii. 583 and Reeve - v. Rye - - v. Scott - - v. Shore - - v. Sibthorpe v. Tancred - — — and Thruxton v. Vigor - - Vf Ward - - Atwaters v. Birt - - - u. 33 - - - 267 - 171, 222 - - "• 533 - - ii. 101 - - ii. 101 - - - 265 - - - 37 6 - - ii. 238 334, 484, 485 - - ii. 174 ii- 436, 454 - ii. 70, 72 - - - 403 - - - 562 Auby v. Doyl - - Audley v. Audley, and Gee Austen and Adams Austin v. Austin - Austin (re) ------ 486 Avvdley's (Lord) case - 275, 276 Awsiter and Dyer - - - 261 B. Back v. Kett - - - - ii. 1C8 Backs and Wilkes - - - 256 Bacon and MacLeroth, 385, ii. 260 v. Waller - - - ii. 387 Bagnal and Downing, ii. 201, n. Bagot v. Oughton, ii. 343, 344, 345> 34 6 > 35o Bagshaw v. Spencer - - - 174 Bailey v. Ekins - - - ii. 31 v. Lloyd - 379, 510, ii. 73, 78, 92, 298 Bainton v. Ward - Baker v. Anscombe v. Barrett - and Smith - Baldwin v. Carver Baldwin v. Pole - - Ball v. Bumford - - and Forbes, 387, 390. ii. 1 76, 262, 263 - - 11. 30 - - - 178 562, ii. 259 - ii. 117, 218 - - ii. 285 - - - 119 - - ii. 251 [iii Page Baltinglass and Temple, ii. 140, 144, 150, 335, 343, 344 Baltinglass (Lady) and Tristam, ii. 335> 340, 341 - 173 ii. 242 ii. 348 -538 ii. 282 Bampfield and Popham - Banbury's (Lord) case - Banks v. Brown - - - and Mills - - - Barbe, (St.) and White - Barber and Mackintosh, 140, ii. 482 Barford v. Street - - - - 1 19 Barker v. Boucher - - ii. 31 and Corbett - - - - 3 6 ° v. Hill - - - - ii. 100 v. May - - - - ii. 31 Barlow and Wright, 282, 290, 309 Barnard and Sitwell - 540, ii. 305 Barnard and Sprange, 299, 301. Barneby and Higgenson, ii. 307 Barnes\case (Hob.) - - - 143 Barnes's case, or Barnes and Houell - - - 129, 130, 143 Barnett and Van - - - - 271 Barnston and Stackhouse, ii. 46 Baron and Pearse - - ii. 336 Barrett and Baker - 562, ii. 259 Barrington v. Attorney-Gen. 129 (Lord) and Freke - - 1 80 Barrow and Crompe, ii. 6g, 78, 273, 296 Barry and Brodie - - ii. 170 and Richardson - ii. 15 Barstow v. Kilvington - ii. 239 Barter and Seale - ii. 287, 289 Bartlet v. Ramsden - - ii. 23 Barton's case ----- 32 Barton v. Briscoe - 204, 205 and Buckland, 125, 386, ii. 585 v. Croxall - - - - ii. 6 a 2 iv] lNDliX TO CASES CITED OB [NTROD1 « ED Page - ii. 488 - ii. 508 - ii. 43* Barton and Home Haitian) V. Whichcotc Bassett's case - - - Bassett and Upton - ii. '245,246 Bate and Kenworthy, 507, 510, 564 Bateman r. Bateman - 116,538 Bateman v. Davis - - - 341 Bath's (Earl of) case, 513, ii. 154, 155 Bath and Montague, 266, ii. 120 Bathurst and Pack - - ii. 30 Baugh v. Haynes, ii. 343, 3G4, 430 and Ward ■ - ii. 161,169 Bax v. Whitbread, 569, 571, 572, 576 Baxter v. Dyer - - - - 361 Bayley and Harkness - - 361 Bayley v. Mansell - - ii. 533 and Earl of Uxbridge, 88, 89, 474, ii. 39 v. Warburton, 184, 185, 195, 200 Bayne and Pocklington, 56 1,569, ii. 238 Baynes r. Belson - 158, ii. 373 Beale v. Beale, ii. 44, 214, 285, 292, 305 and Jones - - - ii. 256 Bcane and lthcll - - - - 100 Beard v. Westcott, 28, ii. 73, 76 Beaufoy's (Lady) case - ii. 125 Beaulieu r. Lord Cardigan, ii. 168 licaumont and Nedham - ii. 246 and Rich, 18G, 187, 195, 241 Beckett's case, 467, 470,477, 478, 479, 485 Beckwith and Ludlow - ii. 440 Bedford and Arnold - - ii. 256 and Carr, ii. 190, 258, 2G0, 80 Bedhani v. Mee - - - Begby v. Crook - - - - 49 Belcher and Green - - - 539 BclcJticr and Aleyn, ii. 202. 204, 647 Belficld and Bradford, 145, 148, ii. 491, 492 Bell v. Hyde - - and Scott Bellasis 9. Uthwatt Belson and Baynes - Bengough v. Edridgc Bennet and Newton Bennett v - - 208 - ". 251 - ii. 185 158, ii. 373 - 28, 494 - »• 31 Aburrow, 386, 387, 403, ii. 58G and Ardesoife, ii. 159, 168 v. Honeywood, ii. 257, 265 and Newton Benson v. Benson v. Hodson - - v. Whittam Bentham v. Wiltshire, Berney and West Berry and Osbrey - " 137 207, 209 - "• 570 - ii. 189 135> 139 98, ii. 281 - ii. 4 r. Richc, ii. 273, 398, 404 and Lady Whetstone - 171 v. White, 57, ii. 335, 354, 373, 374, 380, 398, 410, 453 Berryman and Attorney-Gen., 222 Bessie and Harris, 290, 520, ii- 355 Best and Stratton, 557, ii. 163, 226 Bettison and Doe, ii. 394, 415, 426, 428, 430, 474, 475 Beverley's case - ii. 195, 196 Bevil v. Rich ----- 564 Bibell v. Dringhouse - - - 437 BiekerstaiTe and Goring - - 443 Bickley v. Guest - 91,98, 101 Big^ott v. Smyth - - - - 25 INDEX TO CASES C Page Biles and Spring, 450, 562, 564, ii. 256, 262, 265 Billing v. Earl of Macclesfield, ii. 132 Billingsley v. Wells - - ii. 292 Birch v. Wade, ii. 1 75, 265, 2G9 Bird. See Birt. Bird v. Christopher, 91, 99, 100 and Doe - - - 386, 392 v. Stride ----- 266 Birt and Atwaters, 334, 484, 485 Bixby v. Eley - - - ii. 1 00 Blackburne v. Stables - ii. 257 Blacket and Savile, 83, 85, 91,99, 443, 450, ii. 567 Blackman and Hoste - - 404 Blackmore and Langstone, ii. 281 Blackston and Lavender, ii. 242 248, H9' 251 Blake v. Bunbury - - - 386 and Clarke - - ii. 257, 285 Blake v. Marnell, 432, 437, 540, 541 > 542, 543,55° Blakeman and Hovey - - 210 Blamire and The Mayor, &c of Carlisle ----- 67 Bland v. Bland, 180, ii. 80, 86, 187 and Witham - 475, 485 Blandford (Marchioness of) v. Duchess of Marlborough, ii. 130, 131, 317 Blanfray (Lady) and Sarth, ii, 100, 126 Blantern and Collins, ii. 193, 198 Blatch v. Wilder - - 1 38 Blithe's case - - - 184,202 Blockville v. Ascott, 247, 301, ii. 15G Blore v. Sutton, ii. 125, 131, 132, 330, 333 Blount and Foonc - - - 144 ITED OR INTRODUCED. [v Page Boddington v. Abernethy - 185 andWitts - -ii. 181, 182 Boehm and Trafford - - - 538 Boen and Yates - - ii. 195, 196 Bold and Wynter - ii. 6, 304 Bolton's (Duke of ) case - ii. 143 Bond and Hele, 117, 470, 472, 474, 485. ii- 571 Booth and Ward - - - ii. 152 Bosworth v. Ferrand - - ii. 43 Bovey v. Smith - - - - 358 Bovie's (Sir Ralph) case, ii. 247, 249 Boucher and Barker - - ii. 31 Boughton v. Boughton, ii. 166, 167 v. Sandelands - - - 442 Bould v. Winston - - - - 32 Boulton and Breers or Briers, 520 Bowes v. E. L. Water Works, 446, h- 330, 332, 333, 387, 4&> Bowles v'. Bowles - - - ii. 290 and Carver, 204, ii. 79, 165, 279 Bowman and Dobbins, 107, 175, 443 v. Matthews - - ii. 498 Boyce v. Hanning - - ii. 494 Boycot v. Cotton - 540, ii. 304 Boyle v. Bishop of Peterbo- rough, 527, 528, 529, 534, 535, 53 6 » 575, "• 221, 222, 231, 281 Bradbury v. Hunter, 89, ii. 41, 122 v. Wright - - - ii. 317 Bradford v. Belfield, 145, 148, ii- 49i>49 2 v. Farmer - - - - 457 Bradley and the Attorney- General - - - - ii. 14, 176 > v. Bradley - ii. 100, 120 vi] INDEX TO CASE9 3 2 4 Bromehill and Cooke - - 57 Bromley and Henfree - ii. 193 Brookman v. Hales - 384, 440 Broom and Longmorc, ii. 181, 182, 190,191,216,224,225,299 Page - " '74 - ii- 348 ii. G3, 64 Broughton v. Langley Brown and Banks and Chapman - and Herring, 85, 94, 95, 291, ii. 608 v. Higgs, 567, ii. 175, 176, 180, 265 v. Jones - - ii. 246, 247 and Langley, 458, 472, 473, 474 and Maples - Broun v. Like v. Pocock - Browne v. Joddrell v. Nisbett, 35! - - - 385 211,212 205, ii. 181 - - ii- 195 ', 371 » 4<>3» ii. 7 8 > 303 - - - 427 - - ii. 80 and O'Hara - - and Parry - - %i. Taylor, 431, 511, 5*3, 5H and Tenant - - - - 134 and Tompson, 275, n., 490 and Wareham - - - 538 Bruce (Lady) and Countess of Oxford - - -ii. 124, 138 Brudenell v. Elwes, 4G3, 4GG, ii. 5 G , 59» 6 3> 66, G8, 76, 78, 2 73> 2 77> 2 7 8 > 282 > 2 95 Brunsden v. Woolridgc, ii. 258, 263, 265 Brydges v. Brydges - - - 1 74 Buckeridge v. Ingram - ii. 166 and Long - - - - 164 Buckhursts's (Lord) case - 275 Buckingham (Duke of) and Marquis of Antrim, 186, 195, 201, ii. 377 Buckland and Attorney-Gen. ii. 258 v. Barton, 125, 386, ii. 585 Buckley and Renn, 5 8 , 66, 67 7 1 ; »• 549 INDEX TO CASES CITED OR INTRODUCED. Page Buckley and Earl of Stafford 1 16 Buckmaster v. Harrop - - 300 Buckvvorth v. Thirkell, ii. 35, n. Bulkeley and Ren - - 66, 67 Bulkley v. Welford - - ii. 153 Bull v. Kington - - - - 127 v. Pritchard - - ii. 71 v. Vardy - ii. 173, 177 Bullas and Watts - - ii. 101 Buller and Mortlock, ii. 125, 133, 508,510512, n. . . . v. Waterhouse - - ii. 242 Bullock v. Fladgate, 538, ii. 519 v. Sadlier - - - ii. 246 . and Standen - - ii. 243 v. Thorne, 86, 92, 95, 358, ii. 243, 561 Bulpin v. Clarke - - - 427, n. Bumford and Ball - - ii. 251 Bunbury and Blake - - - 386 Bunting v. Lepingwell - ii. 27 Burchet v. Durdant - - - 173 Burdet and Attorney-Gen. - 267 Burg's (Lady) case - - - 333 Burgess v. Mawbey - ii. 16, 171 v. Wheate - - - ii. 174 Burgis and Rawlins, ii.6, n., 7, 8, 9, 10 Burgoigne v. Fox - - ii. 502 Burland and Bushell - - - 95 Burleigb and Holt - 350, 353 v. Pearson, 566, ii. 90, 296, 298 Burlington (Earl of) and Lady Clifford - - - ii. 100, 131 Burnaby v. Griffin - - - 209 Burnet v. Helgrave - - ii. 17 v. Mann - 185, 195, 282 Burrell and Burrell - - - 565 v. Crutchley, ii. 301, 324 Burrough's case - - - - 333 Burton and Abbot and Keates - Bury and Peyton Busby v. Salter - Bush and Davies Bushell and Burland - [vii Page - - 107 138, ii. 191 - . 141 ». 279, 299 64, 66, 73 - - 95 v. Bushell, 269, 465, ii. 186 Butcher v. Butcher, 527, 535, 57°, 57 1 * 573, »• 19 8 > 200, 221, 273 and Doe, ii. Butler v. Bray and Falkner, and Moore - - - r. Mulvihill - - and Salter - - v. Stratton - - - Butricke t\ Broadhurst - Butt and Trower - - - 330, 33i> 334 - - - 336 ii. 17. 18, 293 - - ii- 159 n- 195 246, n. ii. 261 ii. 168 ii. 257 Cable and Perott - - ii. 386 Cadell v. Palmer - - - 28, 494 Cadogan and Sloane, 292, 385, 447, ii. 101, 584 and Wright, 190, 191, 192 (Lord) and Wright, 195, 200 Calvert and Doe, ii. 81, 387, 392, 393, 397, 407 Camden (Lord) and Garrick, ii. 260 Camelford (Lord) and Smith, 576, ii- 3, 64, 69, 1 70, 228, 238, 273, 296 Campbell v. Leach, 437, ii. 81, 125, 134, 142, 145, 146, 148, 348, 351, 389, 39i, 415, 432, 433, 439, 444, 452, 466 . and Leach - ii. 132, 644 v. Sandys - 245, n., 526 and Smith - ii. 258, 260 viiij INDEX TO I W3ES CITr.b OK [NTRODUCED Pa ere Campion v. Thorpe - ii. 347, 348 Canterbury (Archbishop of) and Paicc - - - - - 125 Capel and Kirkpatrick - - 7;) Capron and Powis - - ii. 496 Cardigan (Lord) and Beaulieu, ii. 168 Cardigan {Earl of) v. Montague, 4C7, ii. 334,351,355, 360,425, 430, 433> 439, 440, 441 » 445, 468, 474, 592 Carey v. Askew - - ii. 166, 1G7 Carlisle (Mayor, &c. of) v. Blamire ------ 67 Carr v. Bedford, ii. 190, 258, 260, 265 and Smith «■ - - ii. 195 Carroll and Savage, ii. 170, 174, 190, 306 Carter v. Carter, 294, 548, ii. 41 , 49, 119, 12G, 131 and Hall - 540, ii. 42, 304 and Williams - - ii. 485 Carver and Baldwin - - ii. 285 v. Bowles, 204, ii. 79, 165, 2/9 Carvill v. Carvill - 137, ii. 174 Casson v. Dade - - - - 298 Castcrton v. Sutherland, 506, 531, 534, ii. 186, 224, 267, 607 Caswall (Ex parte) 386, 415,428, ii. 586 Cator and Goodright, 51, 54, 66, 72, ii. 520 Cavan (Lady)and Doc, 2C9, ii. 392 (Lady) v. Pultney - ii. 170 Cave v. Holford - - - ii. 35 Cavendish (Lord George) and Duke of Devonshire - - 496 and Doe, ii. 59, 73, 74, ^59, 1C1, 273 Cazenove and Hall - - ii. 389 Chad wick v. Doleman, ii. 212, 290,291, 292 Chamberlain and Cox, 10C, 451, 452, 454, »• 35, 502 Champernon v. Champemon, ii. 317 Chandler and Prince - - ii. 124 Chapman v. Brown - ii. 63, 64. v. Emery - ii. 246, 252 v. Gibson, ii. 98, 101, 117, 118, 119,643,644 and Peat - - - - 534 Chappel 1. Whitlock - - 462 Chester (Bishop of) v. Free- man ------ ii. 401 Chinneryand Muskerry, 543, 548, 55i,ii. 211,359, 364, 381,421, 456, 466 Cholmeley and Cockerell, ii. 139, 513 Cholmely v. Paxton - - ii.513 Chohnondlcy [Lord) v. Lord Clinton - - - - 132, ii. 5 Chohnondlcy v. Meyrick - ii. 5 Christopher and Bird, 91, 99, 100 Chudleigh's case, 18, 23, 24, 25, 26, 34, 38, 39, 455, ii. n. 413 Church v. Edwards - - - 532 v. Kemblc - - - ii. 161 Churchillv. Dibben, 185, 188, 195, 200, 386, 407, 421, 425 Churchman r. Harvey, 512, 515, 517, ii. 43, S5, 100, 116, 306, 312, 606 v. Ireland - - - ii. 168 Chute's (Dorothy) case - - 158 Civil 1. Rich ----- 569 Clapham and Holdfast - ii. 524 INDEX TO CASES CITED OR INTRODUCED. [i-X Page Page Clare and Crossly Clarke v. Blake - and Bulpin - and Doe - - v. Periam v. Philips v. Pistor - • v. Turner - ii. 25C ii. 257, 285 • - 427, n. ii. 257, 285 - ii- 194 . - - 85 » - - 210 »• »9°. 2 59 Clarkson v. Lord Scarborough, ii. 132 Clay v. Willis - - - - ii. 31 Clayton's case - - - ii. 387 Clere's (Sir Edward) case, 105, 107, 108, 110, 374, 396, 400, 401, 431, 432,433> 435. 44 1 * 558 Clere (Sir Edward) and Parker, 105, 374 Clerk v. Nettleship - - ii. 251 v. Pywell - - - 85, n. Cleyton and Whisk on - 119 Clifford (Lady) v. Earl of Burling- ton - - - - ii. 100, 131 and Probert - - - 540 Clinton and Palk - - - 539 Clinton (Lord) and Lord Chol- mondley - - - - 132, ii. 5 Clinton v. Seymour - 558, 559 Clinton v. Willes - - - 208 Clitherow and Allanson, ii. 310 Clough and Jones, 286, 296, 298, ii. 175 Cloyne (In re) - - - ii. 533 Coates v. King - - - - 401 Cockburn and Daubeny, ii. 202, 203, 205, 206, 299 Cockell and Rich - ii. 22, 160 Cockerell v. Cholmeley,ii. 1 39, 5 1 3 Codrington v. Foley - ii. 305 Coghill and Holmes, 447, ii. 30, 109, 110, 173 Coke and Earl of Tankerville, 88, 552, ii- 513 Coke's (Sir Edward) case - 232 Cole and Higham - - ii. 387 v. Robbins - - - ii. 195 v. Wade, 148, 224, ii. 259, 265, 266, 267, 270, 492 Coleman v. Seymour, 346, 569, ii. 5, 285, 293 Collett v. Hooper - - ii. 336 Collier and Spurgeon - ii. 249 Collins v. Blantern, ii. 193, 198 and Hinde - ii. 146, 246 and White - - ii. 60, n. Collyer and Fox, ii. 397, 399, 400, 401 , 402, 403, 404, 405 Colmanand Cruwys, ii. 176, 260, 262, 269 and Doe - - - - 465 Colston v. Gardner - - - 475 Coltman and Dolin - - ii. 251 Cotton v. Hoskins - 215, 220 Col ton v. Newland - - 215, n. Colvile v. Parker, ii. 246, 247, 252 Comber v. Graham - - - 126 Combes's case, - - 222, 224 Common v. Marshall, ii. 82, 366 Compton and Paul - - ii. 176 and Yates - - 129,130 Comyns and Robinson - - 175 Conway (Lord) and Walpole, ii. 2, 3, 5 Conway's (Lord) case Conway v. Conway - Cook v. Duckenfield - v. Fountain - - v. Parsons - - and Rhodes Cooke v. Bromehill v. Farrand and Ogle h u. 93 ii. 304 - U9 - 135 - 327 ii. 207 - 57 - 552 - 361 x] INDKX To CASES CITED OB INTRODUCED. Page ( 'ooke and Stamp Cooper r. Dcnnc ■ v. Forbes ii. 2G1 »■ +75 ii. 285 - 67 ii. 297 - 3G0 - 58 Copeland v. Stephens Cordell and Elliott - Corbett v. Barker - - Corker v. Ennys - Cornwallis (Lord) and Lassels 359> Ji - 2 9 Corp and Sturgis - - - 213 Cosins and Tipping - - -163 Cothay v. Sydenham 257, ii. 22 Cotter v. Layer, ii. 14, 15, 112, 119, 128, 136 Cottle and Young - - - 487 Cotton and Boycot - 540, ii. 304 and Forrester, ii. 161, 163 and Garth - - and Lane - - 34 173 Coventry's (Lady) case, ii. 137, 194 Coventry v. Coventry - ii. 125? 127, 130, 314 Coventry v. Coventry (P. Wins.) 259, ii. 100 v. Coventry (Com.) ii.95, 377,430 (Earl of) and Haye - 493 and Waring- - - ii. 496 - 559 ii. 169 - 350 Coulson v. Coulson - Cousmaker and Kidney, Coutts and Meyrick - Cowper and Stiles, ii. 132, 153, 333, 139, 150, 153 Cox v. Chamberlain, 106, 451, 452, 454, »• 35, 502 Cox and Grigby - - - 208 Cox's (Lady) case - - ii. 194 Coxe v. Day, ii. 223, 357,4*5, 446, 455, 457, 459> 4 g o, 461, 462, 465 Cragrave r. Pcrrost - Crawford and Long - v. ltankin - - Page - 56g ii. 548 »'. 539 Crawley and Hodgworth, ii. 315 Creed and Doe - - - ii. 432 and Jack - - - ii. 357 Croft v. Pawlet - - - - 317 0. Slee - 127, 386, ii. 585 Crofts and Middleton - ii. 26 Crompe r. Barrow, ii. 69, 78, 273, 296 Cromp^on and North - - 132 Crook and Begbie - - - 49 Cross r. Faustenditch, 158, ii. 242 246 t;. Hudiion, ill, 112, 113, 175,443 Crossling v. Crossling, ii. 172, 179 Crossly v. Clare - - - ii. 25G Crowe v. Odell - - - ii. 285 Croxall and Barton - - ii. 6 Crutchley andBurrell, ii. 301, 324 Cruwys v. Colman, ii. 17G, 2C0, 2C2, 269 Cull v. Showell - - - ii. 1C1 Culpepper v. Aston - - ii. 498 Cumberford's case, ii. 346, 348, 349, 350 Cunningham v. Moody - ii. 23 Cunyngham v. Thurlow, 98, 102, ii. 223, 302 Curry and Jones, 387, 394, 415, 425, 426 Curtis and Hatcher, 289, 470, ii. 14 v. Price - - 178, ii. 607 Cutten v. Sanger - . - ii. 283 D. Da Costa v. Villareal, ii. 315, 317 Dacre (Lady) t>. Hazel - - 158 INDEX TO CASES CITED OR INTRODUCED. Page Dacre's case - - - - -226 Dade and Casson - - - 298 Dalby v. Pullen - - 347, 353 Dale and Jones, 301,302,303 Dalzell and Duff - - - - 298 Daniel v. Goodwin - - ii. 21 Daniel v. Ubley, 119, 184, 195, i97 ? 198,199,200, 2D>1 Dann v. Spurrier - - - ii. 361 Danne v. Annas - - 334, 339 Darlington (Earl of) and Pul- teney - - - 269, ii. 163 — — (Lord) case - - - - 276 Dashwood v. Peyton - ii. 163 Daubeny v. Cockburn, ii. 202, 203, 205, 206, 299 Davies v. Bush - - 64, 66, 73 v. Kempe - - - - 534 v. Williams - - - Davis and Bateman — — v. Uphill, ii. 401 341 207, 210 - - 208 197 Davison v. Gardner Davy v. Hooper - ii. 176, 181 Dawding and Rippon - - 190 Dawkins and Witts - - - 210 Dawson and Anderson, 210, 270, ii. 238 Day. See Dye. Day and Cox, 223, 357, ii. 415, 446, 455, 457> 459> 460, 461, 462,465 and Doe - - ii. 389, 446 v. Twaithes - - 154, 155 Deane and Lord Jersey - 97 Deardon and Keene - - - 152 Death and Smith - - - - 101 De Brittaine's (William) case, 233, n. Defriez and Isaac - - ii. 258 Deg v. De- - - - 375, 434 [xi Page Deg v. the Earl of Macclesfield, 394. 434 Delamere's case - - - - 13 Delamere v. Sermon - - 14 Denn v. Fearnside - - ii. 388 i'. Roake .... 438 Denne and Cooper - - ii. 475 v. Judge .... 139 Dennison and Druce, ii. 163, 170 Denny and Doe - - 352, 523 Devereux v. Moor - - - 275 Devisme v. Mellish - - ii. 257 Devon's (Duke of) case, ii. 276, 277, 278 Devonshire (Duke of) v. Lord Geo. Cavendish, 498, ii. 62, 295 Dewes and Hall, 145, ii. 489, 490, 49 1 Dey. See Dye. Dihben and Churchill, 185, 188, 195, 200, 386, 407, 421, 425 Digges' case, 8, 88, 91, 92, 98, 256, 266, 329, 357, 460, 468, 485, ii- 33, 573 Dighton and Thomlinson, 92, 99, 119, 122, 184, 195, 253, 261, 270, 271, 432, 505, 562, ii. 84, 567, 569 Dike v. Ricks - 173,11.38,498 Dillon v. Dillon, 385, 410, ii. 91, 302, 591 v. Grace, 190, 427, ii. 104 v, Parker - - - ii. 159 Dilnot and Doe - - - 450 Dime v. Munday - - 266, n. Dingwell v. Askew - - ii. 19 Dix and Hore - - - - 173 Dixall or Dixtvcll and Roberts, 509, 511,512, ii. 68,91, 171, 298, 613 Dixon and Webb - - ii. 361 Dobbins ; . Bowman, 107, 175,443 b 1 Page Doc v. Meyler, ii.446, 44.7, 448, 457 v. Milborne, 358, 539, ii. 310 Xil] INDEX TO CASES CITED OR INTRODUCED Page Doe v. Alchin - - - 5^ 2 » n - v. Alexander - - - 464 v. Bettison, ii. 394, 415* 4 2 ^» 428, 430, 474. 475 v. Bird - - - 386, 39 2 r. Britain - - - - 80 v. Butcher, ii. 330, 331, 334 v. Calvert, ii. 81, 387, 39 2 > 393, 397, 407 v. Cavan (Lady), 269, ii. 39 2 v. Lord George Cavendish, ii-59, 73, 74, 159,161,273 v. Clarke - v. Colman v. Creed v. Day v. Denny . v. Dilnot . v. Dorvill . v. Giffard • v. GofF - ii. 257, 285 - - - 465 - - ii. 43« ii. 389, 446 - 35 2 ,5 2 3 - - - 450 - - ii. 3 ii. 427, 428 ii. 60, n. v.Morgan - - 288,557 v. Morse - - - ii. 331 v. Over - - - - ii. 257 v. Passingham, 169, 170, 171, 174 Doe v. Peach, 308, 316, 324, 329, 330 Doc v. Pearson - - . v. Perry n - - — — v. Pierce - - v. Radcliffe v. Reade - - - - 119 ii. 218 - 3 2 4 ii. 423 - 393 v. Goldsmith, 508, ii. 286, 287, 289 v. Haddon - - 241, ii. 33 r. Halcombe, ii. 342, 352, 364 O. Hardwicke - - ii. 3 6 4 v. Harvey, ii. 383, 39 2 , 4 2 4 v. Hicks --- - 178 v. Hiern - - - ii. 3 82 v. Holloway - 277, 279 i). James - - - ii. 246 v. Jesson, 508, ii. Go, n. 286 r. Joinville - - - ii. 260 v. Jones - - - ii. 3 6 v. Kier - - - 266, 451 v. Lloyd - ii. 413, 445 1 v. Martin, 163, 171, ii. 3, 4, 196, 242, 480, 498, 501, 521 v. Mathews - - - ii. 441 v. Rendle, ii. 34 6 ,44i, 449 v. Robson - - - ii. 390 v. Rogers - ii. 412, 415 — — v. Routledge - - ii. 246 v. Sandham, ii. 144, 473> 475 - i>. Simpson - - - - 127 dem. Chattaway v. Smith ii. 260, 459 dem. E. of Jersey v. Smith, ii. 431, 457, 461,462, 4 G 4 and Smith - - - ii. 448 v. Smyth ----- 49 v. Snowden - - - ii. 392 v. Staple - - 194, 349 v. Thomas - - ii. 4°, 49 v. Thorley - - 270, 271 v. Tomkinson, 113, 347, 354 v. Underwood - - - 534 v. Watson - - - ii. 388 v. Watts - ii. 330, 33 1 v. Weller, ii. 3, i°4, H7» 151,332 ©.Whitehead - 291,293 INDEX TO CASES CITED OR INTRODUCED. Page Doe v. Wilson, ii. 427, 430, 434, 439> 46o,4 62 v. Withers - - - ii. 469 Doidge and Duke - - ii. 292 Doleman and Chadwick, ii. 212, 290, 291, 292 Dolin v. Coltman - - - ii. 251 Doran v. Wiltshire, 343, ii. 513, 515 Dormer v. Fortescue - ii. 527 and Guy .... 375 and Sheldon, 539, ii. 303 v. Thurland, 266, 286, 287, 288, 3i7>3i8 Dorril and Routledge, 182, 493, 499, ii. 62, 66, 69, 71, 72, 73. 127, 224, 238, 281 Dorvill and Doe - - - ii. 3 Douglas v. Ward - - - ii. 246 Dowling v. Foxall - - ii. 389 ■ v Macguire - - - 208 Downes v. Timpeson, 126, 187 Downing v. Bagnal or 1'otvnsend, ii. 201, n. Downton and Hills, ii. 101, 117, 118,643 Doyl and Auby - - - ii. 174 Doyleya. Attorney-General, 151, 222, ii. 259, 266, 267, 268 - ii. 120 - - 173 - - 437 - ii. 212 185, 194 ii. 163, 170 Drake v. Robinson - Drewe and Williams Dringhouse and Bibell Driver v. Frank - - . .-. ■ v. Thompson Druce v. Dennison, Drummond and Whaley - 270 Ducane and Howard, ii. 483, 484, 518, 519 Duckenfield and Cook - - 119 Dudlie's (Sir Robert) case - 232 Duff v. Dalzell - - - - 298 [xiii Page ii. 292 ii. 163 ii. 166 ii. 248 Duke v. Doidge - - Dummer v. Pitcher - Dundas v. Dundas v. Dutens - - Dungannon (Lord) and Vane, ii. 6, 162, 209 Dunt and Roe - - - 523, 524 Dunton and Machel - - ii. 476 Durdant and Burchet - - 173 Dusgale and Robinson - - 125 Dutens and Dundas - - ii. 248 Dye or Dey and Thwaytes, 511, 512, 513,514, "• 294 Dyer v. Awsiter ■ and Baxter • and Price - and Savery - Dyke r. Sylvester E. - 261 - 361 ii. 361 247, n. - 572 E. L. Water Works and Bowes, 446, ii. 330, 332, 333, 387, 460 Earl and Rogers - - - ii. 138 Earle and Hungerford, ii. 242, 253 Earsfield and Shelley - ii. 24 Eatington (Inhabitants of) and Rex 111, 117 Eaton v. Jacques - - - 67 Edge v, Salisbury, ii. 258, 261, 263 Edgecombe v. Rodd - - ii. 193 Edgeworth v. Edgeworth, 552, 553, ii- 302 Edridge and Bengough, 28, 494 Edwards and Church - - 532 v. Edwards, 277, 280,281, ii. 121 v. Slater, 56, 83, 85, 91, 99, 180, 372, ii. 41, 398, 566, 567, 568 xiv] INDEX TO CASES CITED OR INTRODUCED. Page I Page Kgerton and Duke of Bridgwater, ii. 216, 234 Eilbeck v. Wood - - - ii. 15 Ekin and Bailey - - - ii. 31 Eley and Bixby - - - ii. 100 Ellard v. Lord Landaff - ii. 134 Elliot r. Hele - ii. 115, 12 7 Elliott v. Cordell - - - ii. 297 Ellis v. Atkinson - - - - 210 and Knight - - - ii. 66 r. Nimmo, ii. 98, 250, 284 t>. Smith, 266, n. 317, 327 Ellison v. Ellison, 151, 281, 328, 384, ii. 107 Elmsley v. Young - ii. 260, 261 v. Shephard - - - 126 Elton v. Harrison - - - 137 Elwes and Brudenell, 463, 466, ii- 56, 59> 6 3> 66, 68, 76, 78, 273,277,278,282, 295 Emery and Chapman, ii. 246, 252 v. England - - - ii. 292 Emmott and Andrews, 386, 387, 388, ii. 585 England and Emery - ii. 292 (Bank of) and Fisher, 123 Englefield and Wright - - 190 Englefield's case, 228, 229, 231 Ennys and Corker . and Vincent - 58 58,89 Ersfield and Garth - - ii. 246 Essex v. Atkins ... - 209 Evan and Stone - - - - 67 Evans r. Ascough, ii. 374, 397, 398,401, 402, 403, 410 v. Astley .... 493 and Smith - - - 266, n. Evelyn v. Evelyn, 540, ii. 131, 306 t'. Ternplar - ii. 251, 252 Ewer and Ross - 287, 288, ii. 21 Eyre v. Fitton - - - - 1,3,3 Eyre and Longford, 156, 262, 298 and Millard - - ii. 131 Eyres and Trippet - - - 49 F. Fairtitle v. Gilbert - - - 541 Falkner Butler, ii. 17, 18, 293 Fallon (Ex parte) - - - ii. 389 Farmer v. Bradford - - - 457 v. Francis - - - ii. 71 v.Martin, 371,443,11.206 Faron and Wells - - - - 272 Farquhar and Mac Queen, 305, 313, 314, ii. 197, 209,505 Farrand and Bosworth - ii. 40 and Cooke - - - - 552 Farrer and Irvin - - 271, 385 Fauconberge and Fitzgerald, 117, 282, 360, 361, 374, 375 Faustenditch and Cross, 158, ii. 242, 246 Fearnside and Denn - ii. 388 Fell and Gardiner - - ii. 166 Fellows and Jermyn, ii. 213, 291 Fenton r. Holloway - ii. 195 Ferrars and Shirley - - ii. 29 Fettiplace v. Gorges - - - 209 Ficlis or Fettis and Yelland or Yeoland - - - 52, ii. 47 Field and Adney - 440, ii. 139 Fielding and Winwood, ii. 117, 118 Finch v. Finch - - - - ii. 163 Fish and Fry - - - ii. 37, 488 and Longchamp - - 328 Fisher v. The Bank of England, 1 23 and Godwin ii. 102, 119, 136 and Welsh - - - ii. 389 Fitton and Eyre - - - - 153 Fitz v. Smallbrook - - 157 Fitzgerald v. Fauconberge, 117, 282, 360, 361, 374, 375 INDEX TO CASES CITED OR INTRODUCED. Page I Fitzgerald {In re) - - - ii. 533 Fladgate and Bullock, 538, ii. 519 Fleetwood and Lindow - ii. 526 Fletcher v. Hoghton - ii. 516 and Hurd - 291, ii. 23 and Makepeace - - 557 and Vane - - - ii. 153 Floyerand Attorney-Gen. ii. 533 Foley and Codrington - ii. 305 v. Wontner - - - ii. 533 Folkes v. Western, 526, ii. 170, 216, 226, 229, 230, 232 Foone v. Blount - - - - 144 Foot v. Marriot, ii. 341, 345, 3,50 Forbes v. Ball, 387, 390, ii. 176, 262, 263 and Cooper - ii. 285 ii. 161, 163 ii. 46, 336 ". 35, n. ii. 527 Forrester v. Cotton, Forster v. Graham Fort and Wilde - - Fortpscue and Dormer r. Gregor, ii. 126, 236, 267 v. Jobson - - - - 354 Fothergill v. Fothergill, ii. 100, 121, 125 Fountain and Cook - - - 1 35 Fowke and Countess of Ros- common, 89, 195, 277, 280, 375, 436 Fowle v. Green - - - - 1 35 Fowler v. Hunter, 123, ii. 181,224 and Keily - - - ii. 66 v. North, 475, 477, 484,485 v. Willoughby - - - 450 Fox and Burgoigne - - ii. 502 v. Collyer, ii. 397, 399, 400, 401,402,403,404,405 v. Gregg, 447, ii. 224, 225, 238, 299 v. Prickwood, ii. 38, 40, 380, 381 [xv Page ii. 389 - 374 Foxall and Dowling - - Frampton v. Frampton - Francis and Farmer - - ii. 71 Frank and Driver - - ii. 212 Frankelen's case - - - - 334 Franks and Sanders, 295, ii. 238 Freeland and Sayle - - - 327 Freeman and the Bishop of Chester - - - - ii. 401 v. West - - - - ii. 388 Freestone v. Rant - - ii. 101 Freke v. Lord Barrington - 180 and Lewis - 540, ii. 305 French v. Patton - - ii. 193 Frere and Thorpe - - - 236 Freston and Thomson - - 179 Fry v. Fish - - - ii. 37, 488 Fugitives (The) case - - 233, n. Funucan and Goodtitle, ii. 338, 348, 350, 39°, 398, 399, 405, 407, 409, 430, 43 1> 468, 477 Fursaker v. Robinson - ii. 101 G. Gamlingay (Inhabitants of) and Rex - - - Garbland v. Mayot - Gardner and Colston and Davison Gardiner v. Fell - - v. Savill - - . ii- 389 - 142 - 475 - 208 - - ii. 166 ■ - - - 336 Garfoot v. Garfoot - - ii. 174 Garnet and Pierson, ii. 257, 285, 292 Garrard and Warwick, 161, ii. 2 Garrett and Wigson - - - 93 Garrick v. Lord Camden, ii. 260 Garth v. Cotton - - - - 34 v. Ersfield - - - ii. 246 and Phillips - ii. 260, 261 Garth waite v. Robinson - 562 xvi] Page Gaunt and Target - - ii. 177 Gee v. Audley - - - ii. 70, 72 Geery and Lord Kilmurry, 540, ii. 304 Gell and Henloke - - George v. - - and Howell v. Lousley - v. Millbanke — — and Taylor - INDEX TO CASES CITED OR INTRODUCED. Page Goodinge v. Goodinge, ii. 258, 261, 263 Goodrich and Sneddon - ii. 166 Goodright v. Cator, 51, 54, 66, 72, ii. 520 0. Humphreys - - ii. 331 v. Moses - - ii. 246, 252 Goodtitle v. Funucan, ii. 338, 348, 350, 390, 39 8 > 399. 405, 407, 409,430,431,468,477 t.Otway, 122, 123,124,125, 271 v. Pettoe - 159, 160, ii. 2 - - - 385 - - - 190 - - ii. 502 - - - 375 - - ii. 30 - - ii. 18 Gerrard and Wigson - - - 93 Gibbeson and Greenham, 330, 339, "• 504 Gibbons v. Moulton, 184, 185, 195, 200 Gibson and Chapman, ii.98, 101, 117, 118, 119, 643, 644 v. Kinven, 562, 5G8, 578, ii. 191 Gier and Osseter - - - - 261 Giffard and Doe - ii. 427, 428 Gihon and Williamson - ii. 214 Gilbert and Fairtitle - - - 541 Gleg and the Attorney-Gen. 141 Glyn and Harding, ii. 172, 175, 178, 179, 2 56, 262, 264, 265, 266, 268, 269 Godolphinv.Godolphin, 184, 195, 200 Godolphin (Lord) and Duke, of Marlborough, l So, 558, ii. 16, 26,106, 172, 177,178,179,267 Godwin v. Kilsha or Fisher, ii. 102, H9> !36 Goff and Doe - - - ii. 60, n. Goldsmith and Doe, 508, ii. 286, 287, 289 Goodall and Thorpe - 80, 235 Goodhill v. Brigham, 105, 106, 108, 109, 110, 111, 155, ii. 4 Goodere r. Lloyd - - - 560 v. Stokes - - Goodwin and Daniel - Goodwyn v. Goodwyn Goolding v. Haverfield Gordon v. Levi - - Gorges and Fettiplace Goring v. Bickerstaffe v. Nash - - - Gowan and Marston Gower and Amby (Countess) v. ' - 551 ii. 21 - ii. 101 - ii. 232 - - ". 5 - - 209 - " 443 - ii. 101 - ii. 101 " "• 174 Earl Gower ----- ii. 232 v. Mainwaring, ii. 257, 258, 260, 265 Grace and Dillon, 190, 427, ii. 104 Grace v. Wilson - ii. 271, 296 Gradyll and Attorney-General, 55, 221,230 Granger. Tiving, 43, 46,181, 184, 194, 195, 201, 214, 217, 229, 460 Graham and Comber - - - 126 and Forster - ii. 46, 336 and Harris, 184, 195, 347 v. Lord Londonderry, ii. 293 and Windham - - ii. 212 Grant v Lynam - - 397, 422 Gray v. Mathias - - - ii. 194 INDEX TO CASES CITED OR INTRODUCED. Page Grayson v. Atkinson, 266, n., 327 - - - 539 - - - 135 - - »• 159 - - - 522 ii. 256, 261 - 158, ii. 138 - - - 275 Green v. Belcher v. Fowle - v. Green and Hele v. Howard and Prince v. Proude - Greenbank and Hearle, 216, 220, ii. 165 Greene v. Wig] esworth - - 116 Greenham v. Gibbeson, 330,339, ii. 504 Greenvil and Pollard, ii. 100, 103, 387 Greenwood v. Greenwood, ii. 261 Gregg and Fox, 447, ii. 224, 225, 238, 299 Gregor and Fortesque, ii. 126, 236, 267 Gregson and Swift - - - 564 Gresham's (Lady) case, 221, 332, ii. 22 Gretton v. Haward, ii. 1G0, 161 Grey and Lord Kilmurry - 215 Grierson and O'Brien, ii. 362, 415 Griffin and Burnaby - - - 209 v. Stanhope, 157, ii. 242, 247> 2 49 Griffith (Assignees of) v. Griffith, 235 Griffith r. Harrison, ii. 61, 62,275, 277 and Wynne - - - - 456 Grigby v. Cox - - - - 208 Grix and Addy - - 301,317 Grove and Lady Hook, 215,11. 115, 313 Grover v. Hugell - - - ii. 519 Guest and Bickley, 91, 98, 101 Guy v. Dormer Gwilliams v. Rowell H. [xvii Page - 375 ii. 174 Habergham r. Vincent, 156, 275, 443 Hackward and Lowes, 386, 392 Haddon and Doe - - 241, ii. 33 Haig v. Swiney - - - - 126 Halcombe and Doe, ii. 342, 352, 364 Hale v. Hale - - - - ii. 285 Hales and Brookman, 384, 440 v. Margerum, 119, 127, 386 r. Risley - - - 25, 33 Halifax and Roper, 74, 77, 102, 273, »*• 57,501, 521,549 Hall and Bramhall - - 1 go, 191 v. Carter, 540, ii. 42, 304 v. Cazenove - - - ii. 389 v. Dewes, 145, ii. 489, 490, 49 1 v. Hall - - - - ii. 316 v. Hewer - - - - ii. 293 and Stanton - - ii. 297 and W'heate, 178, ii. 484, 510,511 Hallett and Pinnell - - ii. 318 Halls and Halsey - - - - 495 Halsey v. Halls - - - - 495 Hamilton and Attorney-Ge- neral ------ ii. 506 > (Duchess of) v. Mor- daunt ----- ii. 438 v. Royse - - 222, 447 Hammersley and Bray - - 525 Hammond and Hutcheson, 44, 49,343, ii. 17 and Roach - - - ii. 256 Hands i'. Hands - ii. 256, 271 Will I [NDEX TO CASES CI Pa 1 rands r. James - - - - 317 Hanning and Boyce - - ii, 4;i4 Harcourt v. Pole, ii. 338, 383, 413 Hardcastle and Robinson, 4<)2, 559, '■• 62, 73. 75, '.)-■ i57> 159, 163, 280 Hardie and Jennor - - - 122 Harding t. Glyn,ii. 172, 1 7.^, 178, 179, 256, 262, 2G4, 265, 266, 2G8, 269 Hardman and Omerod - - 539 Hardwicke and Doe - - ii. 364 Hardwin r. Warner, 227, 230, 231,289 Hardy and Paxvlyn - - - U Hare and Ruscombe - - ;}(io Harington v* Harte - - ii. 225 Harkness v. Bayley - - - 361 Harland 1 . Trigg - - - ii. 187 Harnett v. Yeilding - - ii. 134 Harpool and Kent - - - 25 Harris and Marchioness of Annandale - - - - ii. 194 v. Bessie, 290, 520, ii. 355 1 v. Graham - 184, 195, 347 and Jones - - - -211 and Whitehorne - ii. 257 Harrison' and Elton - - - 137 and Griffith, ii. 61, 62, 275 277 v. Harrison - - - 301 Harrop and Buckmaster - 300 Hart v. Middlehurst - - ii. 30 Harte and Harington - ii. 225 llartpole and Ward - 545.55° Harveyand Churchman, 512, 515, 517, ii. 43, 85, 100, 116, 306, 312, 606 Harvey v. Doe, ii. 383, 392, 424 TED ol( INTRODUCED. Paz Husky and Woodward, 269, 270 Basting's Diane) case, 261, 467, 477.n- Hatcher v. Curtis, 289, 470, ii. 14 Hatter v. Ashe - - - ii. 387 Hatton v. Jones - - - ii. 252 Haverfield and Gooldino-, ii. 232 Haward and Gretton, ii. 160, 161 Hawker r. Hawker - - - 127 Hawkins t. Kemp, 222, 264, 266, 292, 293, 328, 341, ii. 328 k, Leigh - - ii. 117, 118 and Shccomb or Slocomb, ii- 37 L 373.374, 39 8 > 4 10 Haworth and Legard - ii. 224 Haye r. Iiarl of Coventry, 493 Hay and Vlich, 177, 505, 518, 519, 559> ''• 57, fi i , (; 8, 482, 609 Haynes and Baugh, ii. 343, 364, 430 and Roach - - 381,421 I lay ward and Page - - ii. 569 Hazel and Lady Dacre - - 158 Hearle v. Greenbank, 216, 220, ii. 165 and Randal - - - - 123 Heaths. Heath - - - 181, n. and Oke, ii. 16, 17, 18, 24, 2(il Heathcote and Abel, ii. 505, 506, 507 Heatley r. Thomas, 270, 427, n. Hebden and Lamplugb - ii. 502 Helev. Bond, 117.470,472, 474, 485. i'- 571 Hele v. Green ----- 522 v. Hele or Elliott, ii. 115, 127 Helgrave and Burnet - ii. 17 Hemlocke and Heneage ii. 292 INDEX TO CASES CIT1 1 'age Heneage v. Lord Andover, ii. 172, 188 r. Hemlocke and Meredith - 11. 292 ii. 188 »• 193 - .51 Henfree r. Bromley - Henley and Noel - - Herring*;. Brown, 85, 94, 95, 291, ii. 60S Hertford (Lord) and Lord Southampton - - - - 494 Hervey v. Hervey, 88, 358, 370, 541, ii. 100, 110, 116, 119, 125, 140,309,310,311,315 and Churchman - 512,515, 517, ii. 43, 85, 100, 116, 306, 312, 606 Hewer and Hall - - - ii. 293 Hewetson and Paul - - - 271 Hewit 11. Hewit Heyn v. Villers Hicks and Doe and Reeve - " 337 - 24, 28 - - 178 ■ - 3f>o - ii. 382 - ii- 307 Hiern and Doe - - Higgenson v. Barneby Higgins v. Lord Rosse, ii. 334, 456 Higgs and Brown, 5G7, ii. 175, 176, 180, 265 Higham v. Cole - Hill and Barker - v. Hill - - and Malim - v. opencer ii. 387 ii. 100 ii. 485 - 85 ii. 194 »• 513 and Wolf - - - Hills v. Doivnton, ii. 101, 117, 118,643 Hilton v. Kenworthy - ii. 174 Hinchinbroke (Lord) v. Sey- mour - - - - 552, ii. 302 Hinchlift'e v. Hinchliffe - ii. 170 Hinde v. Collins - - ii. 146, 246 Hinton v. Toye - - - ii. 29 11. 57° 11. 516 ii. 524 ii. 2fil ii. 35 - l8o D OB INTRODUCED. [XIX Page Hixon r. Oliver - - 125, ii. 173 v. Wytham - - - - 275 Hobert and Popham - ii. 498 Hockley and Mawbey, 499, ii. 181, 185 Ilodgworth r. Crawley - ii. 315 Hodsden and Lloyd, 194, 349 Hodson and Benson - Hoghton and Fletcher Holdfast v. Clapham Hole and Thomas Holford and Cave — — and Lade - - Holland and Lidwell, 344, ii. 504 Hollingshead v. Hollingshead 215 Holioway and Doe - 277, 279 and Fenton - - - ii. 195 Holioway and Marshall - - 494 Holmes v. Coghill - - - 447 and Wilkes, 155, 298, ii. 100, 102, 105, 136, 137 Holt v. Burleigh - - 350, 353 v. Holt - - ii. 131, 324 Honeywood and Bennett ii. 257, 265 Honnor and Webb - - - 387 Hooke (Lady) v. Grove, 215, ii- "5> 313 Hooper and Davy, ii. 176, 181 — — and Collett - - - ii. 336 Hopkins v. Hopkins - - - 174 v. Myall - - - ii. 101 Horde and Taylor, ii. 334, 46C, 467 Hore v- Dix - - - - - 173 Home v. Barton - - - ii. 488 Horner v. Swann - - - 101 Hornsby and Simpson, 127, 334 Horseman v. Abbey - - - 180' Horton and Nannock, 123, 38G, 387, 390,11.585 Hoshins and Colton - 215, 220 [NDEX TO CASES CITED ok INTKODI CED. XX] Page Hoskins and Woodhouse - 180 Hosteu. Blackmail - - - 404 Hotley v. Scott, ii. 388, 452, 456, 457. 4-tio. 461, 462, 477 Hovey r. Blakeman - - - 210 HoueJl v. Barnes 129, 130, 143 Ilougham r. Sandys, 275, 309, 312, 325, 344, 3 8l > 394, 402, i'- 503 Houstoun v. Houstoun - - 527 How r. Whitfield, 152, 223. ii. 412, 441, 442 Howard t. Ducane, ii. 483, 484, 5i8, 519 and Green, ii. 256, 26*1 Howell v. George - - ii. 502 Hubbard's case - - - - 277 Hudson and Cross, ill, 112, 113, 175, 443 Hudson's case - - - - 301 Hugell and Grover - - ii. 519 Hughes v. Hughes - - ii. 285 Huish and Mores - - - 209 Ilulme v. Tenant - - - 208 Humberston v. Humberston ii. Co, n. 63 Hume v. Rundell, 330, ii. 21, 221, 136 Humphrey r. Taylour - ii. 70 Humphreys and Goodright, »• 331 Hungeribrd v. Earle, ii. 242, 253 Hunloke v. Gell - - - - 385 Hunter and Bradbury, 89, ii. 41, 122 and Fowler, 123, ii. 181, 224 Hurd v. Fletcher, - 291, ii. 23 Hurst v. the Earl of Winchelsea, 394, 39 G » ''• *3, 19. 20, 21 Hussey's case - - - 374, 450 Lgt Hutcheson v. Hammond, 44, 49, 343, ii- 17 Hutchinson and Moulton, 386, 387, ii. 585 Hyde and Bell - - - - 208 v. Price - - - - 210 V. Tylden - - 134, 138 Hyer v. Wordale - - - ii. 174 Hylton and Ramsden - ii. 247 Hynes v. Redington - - ii. 307 Ilchester (Earl of ') ex parte, ii. 15, 166 Ingram and Buckeridge, ii. 166 v. Ingram, 222, 225, ii. 78, 162 v. Parker - 92, 262, 432 Innes v. Jackson - 364, 369, 370 Ireland and Churchman - ii. 168 lrvin v. Fairer - - - 271,385 Isaac v. Defriez - - - ii. 258 Isherwood v. Oldknow, ii. 338, 355, 358, 427, 47 (5 , 478 Ithell v. Beane - - - ii. 100 I vers r. Ivers - - - ii. ill, n. J. Jack v. Creed - - - ii. 357 Jackson and Innes, 364, 369, 370 v. Jackson, ii. 127, 129, 3H and Madoc, ii. 4, 176, 18G ii. Parker ... - 3C0 and Pitt, ii. Ci, 62, 63, 64, 66, 216, 228, 230, 296 and Saunderson - - 301 and Trimmer - 275, 317 Jacob and Worrall - - - 470 Jakeman and Shaw - - ii. 248 James and Doe - - ii. 246 INDEX TO CASES CITED OR INTRODUCED. Pa«e James and Hands - - - - 317 Jacques and Eaton - - - 67 Jee v. Audley - - - ii. 70 Jekyll and Williams - - 245, n. Jenkins v. Kemishe - - ii. 608 v. Keymis, 83, 511, 542, ii. 242 v. Quinchant, 147, ii. 183, 218, 239 v.Young - - - - 166 Jenner (Sir Andrew) and Sump- ton ------- 359 Jenney v. Andrews, 235, 237, ii. 17, 30, 254 Jennings and Lodge - - - 327 v. Moore - - - ii. 100 Jennor v. Hardie - - - 122 Jermyn v. Fellows, ii. 213, 291 Jersey's (Lord) case, ii. 455, 457 Jersey (Lord) v. Deane, 74, 97 Jcsson and Doe, 508, ii. 60, 286 Jesson v. Wright - - Jevers v. Jevers - - Joans and Meredith - Jobson and Fortescue Joddrell and Browne John (Lord St.) r. Lady St. John, ii. 251 Johnson v. Mason - - - 255 v. Medlicot - - - ii. 195 v. Telford - - - ii. 168 Joinville and Doe - - ii. 260 Jones and Attorney-General, 275, n. ■ v. Beale - - - ii. 256 and Brown - ii. 246, 247 Jones v. C lough, 286, 296, 298, ii- 175 Jones v. Curry, 387, 394, 415, 425, 426 v. Dale - - 301, 302, 303 and Doe - - - ii. 36 ... ii. 287 i. ill, n. 1G6, 169 - 354 - ii- 195 Jones v. Harris - and Hatton ■ ■ v. Lake v. Mackilwain [xxi Page - 211 ii- 252 - 327 ii. 71 (Sir Samuel) v. the Coun- tess of Manchester v. Marsh - - v. Salter - - v. Simson - - and Sutton v. Torin - - v. Tucker, 387, 389, 390 v. Verney, ii. 330, 333, 356, 454, 466, 46g> 475 ■ and Lady Vernon - - 361 46.5, n. ii- 247 - 204 - 217 ii. 338 ii. 182 Junes v. Wilkinson Judd v.Pratt - - Judge and Denne K. - - 380 - ii. 163 - - 139 138, ii. 191 - - 152 - - 562 - ii. 66 Keates v. Burton Keene v. Deardon Keighley and iSJalim Keily v. Fowler - Kellettand Bishop of London, 224 Kemble and Church - - ii. 161 Kemishe and Jenkins - ii. 60S Kemp and Hawkins, 222, 264, 166, 292,293, 328, 341, ii. 328 Kempe and Davies - - - 534 Kemp v. Kemp, 562, 570, 572, 575,577. 579, "• 181,191 Kendrick and Wilmer - ii. 138 Kennedy v. Kingston, ii. 183, 285 and Westbrook - - 317 Kennett v. Abbott - - ii. 17 Kent v. Harpool - - - - 25 Kenworthy v. Bate, 507, 510, 564 Kenworthy and Hilton - ii. 174 Kenyon (Lord) and Myddleton, ii. 252 v. Sutton - - - - 108 xxii] INDEX To CASTS CITED oil [NTRODUCED. Page Ker v. Wauchope - - ii. 1 < >< i Kett and Back - - - ii. 1G8 and Parker - - - - 4:51 Kettle v. Townsend, ii. 101,117 Keymis and Jenkins, 83, 511, ii. 242 Kibbet v. Lee, 266, 276, 433, 460 Kidby and Luther - 107,108 Kidney v. Cousmaker - ii l6g Kier and Doe - - - 2O0', 451 and Stanhope - - - 312 Kiernan and Westby - - 540 Kilmurry (Lord) v. Geery, 540, ii. 304 (Lord) v. Dr Grey -215 Kihha and Godwin or Fisher, ii. 102, 119 Kilvington and Barstow, ii. 239 King (The); see Rex. v. Brewer - - - ii. 251 v. Coates - - - ii. 401 v. Melling,9i, 99, 101, 261, 435, "• 5 66 and Moody - - - ii. 35 and Rees - - - ii. 457 Kingston and Kennedy, ii. 183, 285 Kington and Bull - - - - 127 Kinnoul (Earl of) v. Money, ii. 25 Kinven and Gibson, 562,568, 578, ii. 191 Kirkpatrick v. Capel - - - 7;) Kirkwall (Lady) and Stuart, 208 Kirwan and Segrave - - ii. 153 Kitchen and Brewster - ii. 317 Knight v. Ellis - - - ii. C6 v. Knight - - - - 209 and Lovell, 417, 424, 426 v. the Manor of Oundle, 185 and Rex - - - ii. 389 Knigh&ley and Trovoer - ii. 509 Knye v. Moore - - - ii. 194 1'age L. Lade v. Holford - - - - 180 Lake and Jones - - - - 327 Lambe and the Earl of Salisbury, ii. 16 Lamplugb v. Hebden and Shortridtre - Lancaster v. Thornton and Willan - - 11. 502 - 193 - i«9 - 295 LandafF(Lord) and Ellard, ii. 134 Lane t . Cotton - - - - 173 Lane v. Page, ii. 201, n., 202, 203, 204, 205 and Pearson - - - 538 v. Terry - - - ii. 647 V. Wilkins - - - - 447 Langham v. Nenny, 386, 388, ii. 584 Langley and Broughton - - 174 v. Brown, 458, 472, 473, 474 v. Sneyd - - - - ii. 20 Langstone v. Blackmore, ii. 281 Lansley and Major - 190,212 Lassels v. Lord Cornwallis, 359, ii. 29 Lavender v. Blackston, ii. 242, 248, 249, 251 Lavie and Lechmere - - ii. 189 Lawless v Shaw - - - ii. 187 Lawley and Thompson - - 1 74 Lawrence v. Wallis - ii. 14, 19 Lawson v. Lawson - - - 381 Layer and Cotter, ii. 14, 15, 112, 119, 128, 136 Laxton and Walker - - - 392 Leach v. Campbell, ii. 132, 644 Leach and Campbell, 437, ii. 81, 125, 134, 142, 145, 146, 148, 348, 351,389, 39^415, 432, 433, 439, 444, 452, 466 INDEX TO CASES CITED OR INTRODUCED. Page Leach v. Leach - - - ii. 19:3 and Thompson, ii. 195, 196 Leake v. Leake - v. Robinson - 11. 290, 293 - - ii. 71 Leaper v. Wroth, ii. 334, 371, 374 Lechmere v. Lavie - - ii. 189 Ledger and Sands - - ii. 387 Lee and Anson - 361, 367, 404 and Kibbet, 266, 276, 433, 460 ■ t>. Libb - - 2G6, n-, 302 and Vincent - - 142,339 Lee's f Sir Hichard) case - - 357 Lees and Moreton, 110, 169, 170, «88, ii. 35 Leeds (Duke of) and Pugh, ii. 388, 389 Legard v. Havvorth - - ii. 224 Leicester's (Earl of) case, 93, 29*> 433, 437.460, ii. 608 ii. 117, 118 ■ " " 451 ■ - "• 531 - »• 19.7 ! , 99» 100, ii. 242 Leighton and the Bishop of Ox- ford, 116, 139, 250, ii. 481, 482 Lemaine v. Stanley, 266, n., 301 Lemaine's case - - - - 558 Lempriere v. Valpy - - - 311 Lentlial and Ward, 267, 478, 479, 480, 482, 485 Leper v. Wroth, ii. 334, 371, 374 Lepingwell and Bunting, ii. 27 Lestrange v. Temple - - 286 Lethbridge and Somerville, Co, n. Levi and Gordon - - - ii, « Leigh and Hawkins, v. Norbury - and Smith and Tichburn v. Winter, £ [xxiii Page Levvellyn and Lewis, 405, 406. 422, 42G Lewis v. Lewellyn, 405, 406, 422, 426" v. Freke v. Nanele - - 540, 11. 305 - - - ii. 24 - - ii. 436 - 266, n., 302 Lewson v. Pigot Libb and Lee Lidwell v. Holland, 344, ii. 504 Liefe v. Saltingstone, 119, 501, 503, 506, 507, 562 Like and Brown - - 211,212 Limbery and Mason - - ii. 181 Lincoln (Lady) v. Pelham, ii. 290, 293 Lindow r. Fleetwood - ii. 526 Linton and Trollope, 376, 509, 512, ii. 8G, 163,295 Lisle v. Lisle - - - 289,11.14 Lloyd v . Abrahall - - - 177 Lloyd and Bailey, 379, 510, ii. 73, 78,92,298 and Doe - - ii. 413, 445 and Goodere - - - 560 and Hodsden Lock v. Loggin v. Norborne 194.349 ■ - 143 • - 333 ii. 174 • "• 293 - 327 Locton v. Locton Loder v. Loder - - Lodge v. Jennings Logan and Mac Adam, 139, 349 ii. 119 Loggin and Lock - - - - 143 London (Bishop of) v. Kellet, 224 Londonderry (Lord) and Gra- ham ------ ii. 293 (Lady) v. Wayne, ii. 315, 317. 3i8, 319 Long v. Buckeridge - - - 164 v. Crawford - - - ii. 548 xxiv] INDI'.X TO CASKS CITED OK J NTKUDLCKI). Pa Long v. Long, 508, 510,547, 549, 55*, 55-, 57 ,; > »• 14*1 l(il i'. Rankin, 59, 65, <>8. 71. ii. 147, 148, 365, 539, 545 Longchamp v. Fisher - - 328 Longford v. Eyre, 15b', 262, 298 Longmore r. Broom, ii. 181, 182, 190, 191, 216, 224,225, 299 Lousada and Aguilar - - 208 and Mocatta - - 572, 57b Lousley and George - - - 375 Lovell v. Knight, 417, 424, 426 Loveday and Winter, 520, ii. 348, 352, 354. 3%. 385 Lovie's (Leonard) case, 504, ii. 25 Lowe v. Swift - - ii. 134,35b Lowes v. Hackward - 386, 392 Lownds v. Lownds - - 387, 391 Lowson v. Lowson - 385, ii. 278 and Supple, ii. 209, 2G2, 204, ^5 Lowther v. Troy - - - ii. 392 Loxdale and Powell - 447. 449 Ludlow v. Beckwith - - ii. 440 Luther v. Kidby - - - 107, 108 Luttrell v. Olmins - ii 153 Lutwich and Mytton - - - 431 v. Piggot - - 521, ii 355 v. Winford - - - ii. 51b Lutwidgc and Shiphard - ii. 31 Lyn v. Wyn - - - ii. 369, 404 Lynam and Grant, 397, 422, ii. 187, 2G2, 2G4 Lyne and ... - 00b Lysaght v. Royse - - - - 577 M. Macclesfield (Earl of) arid Billing ii. 132 Macclesfield (Earl of) and Deg 394, 434 Pa K e Macey v. Shurmer - 5G2, ii. 187 .Mac Adam v. Logan, 139, 349, ii. 119 Mac Cullough and .Mac Gen- nis ------ ii. 193 Mac Gennis ;•. Mac Cullough, ii- 193 Mac Ghie v. Mac Ghie - - 527 Machel v. Dunton - - ii. 47b Macguire and Dowling - - 208 Mackie and Walker, 391 , 398, 422 Mackilwain and Jones - ii. 71 Mackintosh v. Barber, 140, ii. 482 Mac Lean v. Butter, ii. lbi, 1G3 Mac Leroth v. Bacon, 385, ii. 2G0 Macnab and Standen, (See Standen v. Standen). Mac Queen v. Farquhar, 305, 313, 314, »• i97> 209, 505 Maddison v. Andrew, 428, 5b2, 5$9>575> »• 181,191,223,267, 280, 281, 29b, 58b. Madoc v. Jackson, ii. 4, 17b, 18b Mahon v. Savage, 5b5, ii. 25b, 258, 2b2, 263, 265, 270 (Lord) v. Earl Stan- hope - - - - - ii. 512, n. Mainwaring and Gower, ii. 257, 258, 2bo, 265 Major v. Lansley - - 190, 212 .Makepeace v. Fletcher - - 557 Malim v. Keighley - - - 5b2 V. Hill 85 Mallison v. Andrews - ii. 280, n. v. Ncsbitt - ■• ii. 280, n. v. Robinson - - ii. 280, n. Manchester (the Countess of) and Sir Samuel Jones, 4b5, n. Mann and Burnett, 185, 195, 282 Manning v. Andrew - - lb, 18 Mansell and Baylcy - - ii. 533 INDEX TO CASES CITED OR INTRODUCED. Page Mansell v. Mansell, 145, 14G, 266, 334> 337. 548, "• 320, 606 Mansell v. Price - - - ii. 23 Maples v. Brown - - - - 385 Marbury and Tarback, ii. 32, 242, 253 Margerum and Hales, 119, 127, 386 Marlborough's (Duke of) case ----- 493, ii. 106 (Duchess of) and Mar- chioness of Blandford, ii. 130, 131, 317 (Duke of) r. the Earl of Carlisle - - - - ii. 102 (Duke of) v. Lord Godolphin, 180, 245, 558, ii. 16,26,106, 172,177,178,179, 267 (Duke of) and Lord Spencer - - 180, ii. 63, 299 Marnell and Blake, 432, 437, 540, 541,542,543,550 Marriot and Foot, ii. 341, 345, 350 Marryat v, Townly - - - 530 Marsh and Jones - - - ii. 247 and Tyrrel, 63, 66, 73, 97 Marshall and Common, ii. 82, 366 Marshall v. Hollotvay - - 494 Marshall and Rodgers, ii. 117, 118 and Roe - - - - . 357 and Stroud - - - ii. 195 Marston t>. Gowan - - ii. 101 Martin and Doe, 163, 171, ii. 3 4, 196, 242, 480, 498, 50-,, 521 and Farmer, 371, 443, ii. 206 v. Mitchell, 369, 370, 427, ii. 104 [xxv Paga Masham, or Morehead and Peters, 511, ii. 84, 604, 609 Maskelyne r. Maskelyne - 125 Mason and Johnson - - - 255 Mason v. Limbery - - ii. 181 Massey v. Parker - - 206, 209 Mathews and Doe - - ii. 441 Mathias and Gray - - ii 194 Matthews and Bowman - ii 498 v. Paul - - - - ii 290 Maundrell v. Maundrell, 104, 108, 109, 110, 112, 113, 376, 440 453, "• 35- Maunde and Walter, 149, ii. 266, 270, 504 Mawbey and Burgess - 16, 171 and Hockley, 499, ii. 181, 185 Mawdsley and Monk - 381, 558 Maxwell and Montacute - 247 May and Barker - - - ii. 31 Mayhew r. Middleditch - ii. 303 Mayo (Lord) In re - - ii. 533 Mayot and Garbland - - 142 Medlicot and Johnson - ii. 195 Medxvin and Sandham, ii. 1 44, 147, 150 Mee and Bedham - - 80, 82 Melhuish and Saltern - ii. 608 Melling and King, gl, 99, 101, 261, 435, ii. 566 Mellish and Devisme - ii. 257 Menzey v. Walker, 352, 562, $6g, ii. 238, 301 Meredith v. Joans - - 166, 169 v. Heneage - - - ii. 188 Merlott and Tapner - - - 557 Meyler and Doe, ii. 446, 447, 448, 457 Meyrick and Cholmondley - ii. 5 Meyrick v. Coutts - - - 35 O d \\\ij INDEX TO CASES CITED OB INTRODUCED. Page Meyrick and Reynolds ii. 42, 306 Middleditch and Mayhew, ii. 303 Middlehurst and Hart - ii. 30 Middle-ton v. Crofts - - ii. 26 ■ v. Middleton - - ii. 153 . v. Pryor - - 513, ii. 513 Milbanke and George - ii. 30 Milborne and Doe, 358, 539, ii. 310 Mildmay'scase, 158, 159, 161,554 Millard v. Eyre - - - ii. 532 Mills v. Banks - - - - 538 . and Parsons - - - 159 Milward v. Moore - - 134, 143 Mitchell and Martin, 369, 370, 427, ii. 104 Mitford v. Mitford and Pybus - - - 11-131 - - ii. 27 ii.251, 252 - 5/2, 57 6 Mitton and Roe - Mocatta v. Lousada Mohun and Orby, 221, ii. 304, 3/6, 377,412,437, 443 Monck v. Lord Monck - ii. 163 and Peacock, 107, 188, 209, 427, n. Money and Earl of Kinnoul, ii. 25 Monk v. Mawdsley - - 381, 558 Montacute v. Maxwell - ii. 247 Montague's (Lord) case - ii. 33 Montague and Earl of Cardi- gan, 467, ii. 334, 351, 355, 3C0, 425, 430, 433, 439, 440, 441.445* 468, 474, 592 Moodie x>. Reid, 309, 310, 311, ii. 101 Moody and Cunningham, ii. 23 v. King - - - - ii. 35 Moor and Devereux - - - 275 Moore v. Butler - - - ii. 159 and Jennings - - ii. 100 and Knye - - - ii. 194 P U g 362, 424. 432, 433. 434. 439.440,441,445 INDEX TO CASES CITED OR INTRODUCED. Page Mowbray and Rayner - ii. 256 Mulvihill and Butler - - ii. 195 Munday and Dime - - 266, n. Muskerry v. Chinnery, 543, 548, 551, ii. 211,359, 364,381,421, 454, 466 Myall and Hopkins - - ii. 101 Myddleton v. Lord Kenyon, ii. 252 Mytton v. Lutwich - - - 431 N. Nairn v. Prowse - - - ii. 247 Nangle and Lewis - - ii. 24 Nannock v. Horton, 123, 386, 387, 390, ii. 585 Napier v. Napier - 405, 423, 426 Nash and Goring - - - ii. 101 Nashe and Read, 117, ii. 397, 399, 405, 406,409,435 Naylor and Shardelow - ii. 21 Nedham v. Beaumont - ii. 246 Nenny and Langham, 386, 388, ii. 584 Nesbitt and Mallinson ii. 280, n. Nettleship and Clerk - - ii. 251 Newland and Colton - - 215, n. and Reresby - 341, ii. 6 Newman and Thome - - 333 v. Whistler - - - - 209 Newport v. Savage - 516, ii. 320 Newton v. Bennet - 137, ii. 31 v. Reid - - 204, 206, 207 Nicholls {In re) - - - ii. 533 Nicloson v. Wordsworth - 49 Nimmo and Ellis, ii. 98, 250, 284 Nisbett and Brown, 358, 371 , 463, »• 78, 303 Noel v. Henley - - - - 51 v. Lord Walsingham, ii. 216, 226, 230, 233 Norbornc and Lock - - - 333 [xxvil Page Norbury and Leigh - - - 451 Norfolk's (Duke of) case - 227 North v. Crompton - - - 132 and Fowler, 475, 477, 484, 485 Northampton's (Marquis of) case, ii. 372, 374, 398,410, 411 Northmore and Countess of Sutherland - - - 184, 347 Norton v. Turvill - - - - 208 Nottingham, (Lord) and Rex, 232 Notts v. Shirley - - - - 108 Nowell v. Roakes, 399, 405, 420 Noys v. Mordaunt - - ii. 160 Nurse v. Yerworth - - ii. 257 Nye v. Mosely - - - ii. 194 O. O'Brien 1). Grierson, ii. 362, 415 Odell and Crowe - - - ii. 285 Offley and Scrope, 83, 88, ii. 211 Ogle v. Cooke - - - - 361 O'Hara v. Browne - - - 427 Oke x>. Heath, ii. 16, 17, 18,24, 261 Oldknow and Isherwood, ii. 338, 355, 358, 42 7> 476, 478 Olive and Stephens - - ii. 25i Oliver and Hixon - 125, ii. 173 Olmius and Luttrell - ii. 153 Omerod v. Hardman - - 539 Omly and Stamford, ii. 134, 330 Opy v. Thomasius, ii. 376, 377 Orby v. Mohun, 221, ii. 304, 376, 377,412,437,443 Ord and Palliser - - - - 223 Ormond's (Earl of) case, 271, 273 O'Rourke v. Percival - ii. 134 Osborn v. Rider - - - ii. 387 Osbrey v. Bury - - - ii. 4 d 2 \\\ iiij Page Ossetter and Gier - - - 261 Otway and Goodtitle, 122, 123, 194, l fl 5> 27 1 Over and Doe - - - ii. 257 Oughton and Bagot, ii. 343, 344, 34J> 34G, 350 Oundle (the Manor of) and the King 185 Outon v. Weekes - - - - 157 Owen and Saunders - - - 261 v. Thomas - - - ii. 438 Oxford (Countess of) v. Lady Bruce - - - - ii. 124, 138 (Bishop of) v. Leighton, 116,139, 2 5°> "-481, 482 P. Pack v. Bathurst - - - ii. 30 Page v. Hayward - - - ii. 569 Page and Lane, ii. 201, n. 202, 204, 205 Paget andWade, 289, 437, ii. 136, 282 Paice v. Archbishop of Can- terbury ------ 125 Palk v. Clinton - - - - 539 Palliser v. Ord - - - - 223 Palmer and Cadell - - 28,494 v. Wheeler, 509, ii. 202, 207 v. Whitmore - - - 2G3 Palmer's (Sir Thomas) case 32 Parker v. Sir Edward Clere, 374 and Colville, ii. 246, 247 252 and Dillon - - - ii. 159 and Ingram, 92, 262, 432 and Jackson - - - 360 v. Kett ----- 431 and Massey - 206, 209 1. Parker, ii. 83, 136, 137, 155 - ".193 - - 139 - ii. 17G - - 271 INDEX TO CASES CITED OR INTRODUCED. Page Parker r. Sergeant - ii. 115, 252 and White - - - ii. 529 Parkes v. White, 79, 209, 210, 21 1 Parkhurst v. Smith - - - 34 Parrot and Priest - - ii. 194 Parry v. Brown - - - ii. 80 Parsons and Cook - - - 327 v. Mills 159 v. Parsons - - 347, ii. 297 Partington and Pomeroy, ii. 345, 350 Passingham and Doe, 1G9, 170, 171, 174 Patton and French Pattern v. Randall Paul v. Compton v. Hewetson and Matthews - - ii. 290 and Simpson, 358, 370, 371, ii. 218, 235 Pawlet and Croft - - - - 317 Pawlet. See Poulett. Pavolyn v. Hardy - - - 6 Paxton and Cholmely - ii. 513 Peach and Doe, 308, 316, 324, 3*9 5 330 Peach v. Phillips - - - - 361 Peacock v. Monk, 107, 188, 209, 427, n. and Penn - - - 78, 364 Peake v. Penlington - - ii. 484 Pearce v. Vincent - - ii. 237 Pearse v. Baron - - - - 336 Pearson and Attorney-General, "• 533 and Burleigh, 566, ii. go, 296,298 and Doe - - - - 119 r. Lane 538 and Wright - - - - 174 INDEX TO CASES CITED OR INTRODUCED Page - - 534 Peat v. Chapman - - - Peddie v. Peddie - - - ii. 239 Peirce and Tylley - - - 277 Pelham and Lady Lincoln, ii. 290, 293 and Pitt - 135, 136, ii. 174 Pembroke (Earl of) and Lord Arundel - - - - - -523 Penlington and Peake - ii. 484 Penn v. Peacock - - 78, 364 Penrice and Piggot, 264, 267 ii. ioi, 153, 154, 155, 173 Percival and O'Rourke - ii. 134 Periam and Clarke - - ii. 194 Perkins and Biddle - - ii. 496 v. Walker, 359, 361, ii. 194 Perott v. Cable - - - ii. 386 Perrost and Cragrave - - 569 Perrot v. Perrot Perrot's case Perry v. Phelips - v. Whitehead 487> »• 193 31, 9 2 > *59 - - 174 - ii. 101 - ii. 218 Perry n and Doe - - Peterborough (Bishop of) and Boyle, 527, 528, 529, 534, 535, 536,575, ii. 221,222, 231, 2S1 (Earl of) and Lord Mor- daunt ----- 53, 338 Peters v. Masham or More- head - 511,11.84,604,609 Pettiward v. Prescot - - ii. 159 Pettoe and Goodtitle, 159, 160, ii. 2 Peyton v. Bury - - - - 141 and Dashwood - - ii. 163 Phelips and Perry - - - 174 Phelp v. Hay, 177, 505, 518, 519, 559, "• 57. 6l > 62, 68, 482, 609 Philip and Rees - - - ii. 446 Philips and Clarke - - - 85 [xxix Page Phillips v. Garth - - ii. 260, 261 ■ and Peach - - - - 361 Phillips v. Phipps - - 272,487 Philpotand Arundel, 333, ii. 108, 173 Phipps and Phillips - 272, 487 Phitton's case ----- 83 Pierce and Doe - - - - 324 Pierson v. Garnet, ii. 257, 285, 292 Piggot and Lutwich, 521, ii. 355 v. Penrice, 264, 267, ii. 101, 153, 154, *55, 173 Piggott and Wilson, 258, 260, 371 » 569, 575, "• 125, 236, 238 Pigot's case - - - ii. 144, 193 Pigot and Lewson - - ii. 436 Pike v. White - - - - ii. 118 Pincke and Shove - - - ii. 15 Pine and Alsop - - - ii. 364 u.Pine - - - - - 158 Pinnell v. Hallett - - ii. 318 Piper w. Piper - 486, 490, ii. 191 Pistor and Clarke - - - - 210 Pitcher and Dummer - ii. 163 and Wimbles - - ii. 261 Pitt v. Jackson, ii. 61, 62, 63,64, 66, 216, 228, 230, 296 v. Pelham, 135, 136, ii. 174 v. Smith - - - - ii. 195 Pocklington v. Bayne, 561, 569, ii. 238 Pocock and Brown, 205, ii. 181 Pogson and Roe - - 540, ii. 304 Pole and Baldwin - - -119 and Harcourt, ii. 338, 383, 413 v. Lord Somers - ii. 163 Polhil and Ware, ii. 480, 492, 493, 494 XXX J Page Pollard u.Greenvil,ii. 100,103,387 Pollexfen v. A del mere - ii. 587 Pomcry r. Partington, ii. ;;4,-,, 350 Ponsonby v. Ponsonby - - 464 Pope f. Whitcomb, ii. 262, 266, 267, 270, 650 Popliam v. Bampfield - - 173 v. Hobcrt - - - ii. 498 Popham and Rattle, 514,515, 51 6, 517, ii. 147,320 Portland (Countess of) and At- torney-General - - ii. 388 Portsmouth (Lord) and I fat/op, 394, 39 6 > 417, 4*9> 425, »• 9 2 , 588 Poulett v. Earl Poulett, 578, ii. 298, 301 Poulson v. Wellington, 257, 294, ii. 125 Powell v. Loxdale - 447, 449 and Stratford - - ii. 168 Powis v. Capron - - - ii. 496 Pratt and Judd - - - ii. 163 ■u ' and Sadler - - ii. 72, 91 Prescot and Pettivvard - ii. 159 Preston and Morris, ii. 482, 529 Price v. Assheton - ii. 412. 419 - and Curtis - - r. Dyer - - and Hyde l\L>i:\ TO ' ISES CITED OR INTRODUCED. Page Probcrt v. Clifford - - - 540 Proberi v. Morgan, 429, ii. 84, 319 Proude and Green - - - 275 Prowse and Nairn - - ii. 247 Pryor and Middleton, 513, ii. 513 Pugli v. The Duke of Leeds, ii. 388, 389 Pullen and Dalby - - 347, 353 Pulteney and Lady Cavan, ii. 170 and Earl of Darlington, 2C9, ii. 163 Pung.indltay - - - ii. 36 Pybus v. Mitford - - ii. 27 V. Smith - - - - -210 Pywell and Clerk - - - 85, n. Q. Queensberry's case - - ii. 423 Quick v. Ludburrow - - - 49 Quincey and Scrafton - ii. 22 Quinchant and Jenkins, 364, ii. 183, 218, 239 Quinchant and Pritchard, 364, ii. 183, 218,239 R. RadclifFe and Doe - - ii. 423 Ramsden and Bartlett - ii. 23 v. Hylton - - - - 247 Randal v. Hearle - - - - 123 v. Morgan - - - ii. 248 and Paton - - - 139 ii. 539 178, ii. 607 - ii. 361 - - 210 - ii. 23 Price and Mansell Prickwood and Fox, ii. 38, 40, ii. 380, 381 Prideaux and Roe, 517,520,11. 81, 332, 354, 397, 399, 408, 409 Priest v. Parrot - - - ii. 194 Prince v. Chandler - - ii. 124 v.Green - - 158,11.138 Pritchard and Bull - - ii. 71 1. Quinchant, 364, ii. 183, 218, 239 Rankin and Crawford and Long, 59, 65, 68, 71, ii. 147, 148, 365, 539, 545 Rant and Freestone - - ii. 101 Rattle v. Popham, 514, 515, 516, 517, ii. 147,320 Rawlins 1. Burgis, ii. 6, n., 7, 8, 9> 10 INDEX TO CASES CITED OR INTRODUCED. Page Rawlins and Roe - - ii. 430, n. Ray v. Pung - - - - ii. 36 Rayner v. Mowbray - - ii. 256 Read v. Nashe, 117, ii. 397. 399» 405, 406, 409, 435 Read v. Shaw - - ii. 512, 649 Reade and Doe - - - - 393 Reade v. Reade, 530, 532, 533, 534>535,536, 537, ii- 5, 181, 224, 267 Record and Bielefield, ii. 226, 286 Redington and Hynes - ii, 307 Rees v. King - - - « ii. 457 v. Philip - - - ii. 446 Reeve v. Attorney-General, ii. 33 v. Hicks ----- 360 Reid and Moodie, 309, 310, 311, ii. 101 and Newton, 204, 206, 207 v. Shergold, 123, 270, ii. 15, 100, 139, 521 Reignold and Wood - - 32 Reith v. Seymour, 119, 328, 385 Rendleand Doe, ii. 346, 441, 449 Rendlesham v. Woodford, ii. 168 Renn v. Bulkeley, 58, 66, 67, 71, »• 549 Reresby v. Newland - 341, ii. 6 Rex v. Inhabitants of Anstrey, 264 v. Inhabitants of Eating- ton ----- in, 117 v. Inhabitants of Gam- lingay ii. 389 v. Knight - - - ii. 389 v. Lord Nottingham - 232 v. Marquis of Stafford, ,505, ii. 218, 607 Reynolds v. Meyrick, ii. 42, 306 v. Torin - - - ii. 170 Rhodes v. Cook - - - ii. 207 [xxxi Page Rice and Aislabie - - - 128 Rich v. Beaumont, 186, 187, 195, 241 and Bevil - - - - 564 and Civil - - - - 569 v. Cockell, 209, ii. 22, 160 Richardson v. Barry - - ii. 15 Riche and Berry, ii. 373, 398, 404 Ricks and Dike, 173,^.38,498 Rider and Osborn - - - ii. 387 Rigden v. Vallier - 557, ii. 609 Right v. Smith - - - ii. 336 v. Thomas, 261, ii. 342, 343, 352, 364, 430 Ripley v. Waterworth, 245, n. Rippon v. Dawding - - - 190 Risley and Hales - - - 25, 33 Roach v. Hammond - - ii. 256 v. Haynes - - - 381,421 v . Wadham, 110, 452, ii. 29 Roake and Denn - - - - 438 Roakes and Nowell, 399, 405, 420 Robbins and Cole - - - ii. 195 Roberts v. Dixall or Dixwell, 509, 511,512, ii. 171, 298 - 203 - 174 ii. 120 - 125 ii. 101 - 562 Robinson and Brandon - v. Comyns - - - and Drake - - - t. Dusgale - - - . and Fursaker - - and Garthwaite- - v. Hardcastle, 492, 559, ii. 62, 73, 75, 9 2 > 1 51, 159, l6 3, 280 and Leake and Mallison - v. Smith - - Robson and Doe - - Rochfort and Sperling, Rodd and Edgecombe - 11. 71 ii. 280, n. ii. 5, 190 - ii- 39° 209, 210 - ii- 193 Rotlgers v. Marshall, ii. 117, 118 XX3 xii] INDEX TO CASES CITED OR INTRODUCED. Page Page Roe and Doe v. Dunt - v. Marshall v. Mitton v. Poison - - u. 533 - 523, 524 - - - 357 ii. 251, 252 5+0, ii. 304 v. Pridcaux, 517>5 2 °> "■ 8l > 332> 354. 397> 399» 4«8, 409 v. Rawlins - - ii. 430, n. v. Archbishop of York, 442, 443, ii. 193, 39 2 > 4!3 Rogers's case ----- 437 Rogers and Doe - ii. 412,415 Rogers v. Earl - - - ii. 138 Rooke 0. Rooke - - - ii. 5 Roper v. Halifax, 74, 77, 102, ii. 57> 5M>5*ii 549 Roscommon (Countess of) v. Fowke, 89, 195, 277, 280, 375, 436 Ross v. Ewer - 287, 288, ii. 21 Rosse (Lord) and Higgins, ii. 334, 45 6 Roswell's case - - - - ii. 143 Routledge and Doe - - ii. 246 v. Dorril, 182, 493, 499, ii. 62, 60, 69, 71, 72, 73, 127, 244, 238, 281 Rowell and Gwilliams - ii. 174 Rowley v. Rowley - - 138, n. Royse and Hamilton - 222, 447 and Lysaght - - - 577 Rumbold v. Rumbold, ii. 159, 168, 1G9 Rundell and Hume, 330, ii. 21, 121, 136 Ruscombe v- Hare - - - 360 Russell and Strode - - ii. 101 Rutter v. Mac Lean, ii. 161, 163 and Wright - ii. 161, 1C3 Rye and Attorney-General, 267 Sabine and Tempest, , 386, ii. 587 Sadler v. Pratt - - - ii. 72, 91 Sadlier and Bullock - - ii. 246 St. Barbe and White - - ii. 282 St. John (Lord) v. Lady St. John, ii. 251 Sale v. Moore - - - - ii. 188 Salisbury and Edge, ii. 258, 261, 263 (Earl of) v. Lambe - ii. 16 Salter and Busby - ii. 279, 299 v. Butler - - - - 24(1, n. and Jones - - - - 204 Saltern v. Melhuish - - ii. 608 Saltingstone and Leife, 119, 501, 503, 506, 507, 562 Saltonstall's (Sir Richard) case 504, n. Samme's case ----- 1G3 Sanders v. Franks - 295, ii. 238 Sandelands and Boughton - 442 Sandham and Doe, ii. 144, 473, 475 Sandham v. Medwin, ii. 144, 147, 150 Sands v. Ledger - - - ii. 387 Sandys and Campbell, 245, n. 526 and Hougham, 275, 309, 312, 325, 344, 381, 394, 402, it. 503 - - ii. 41 - -ii. 173 - -ii. 283 ii. 201, 282 - H. 253 v. Sandys - and Tomkyn Sanger and Cutten ■ and Tucker Sansom and White Sargeson v. Sealey, 289, 540, ii. 101, 102, 108, 125, 128, 136 Sarth v. Lady Blanfrey, ii. 100, 126 [xxxiii Patre Seymour's case - - - - 293 Shadwell's case - - - ii. 1 10 Shaftsbury (Lord) and Webb, ii- 532 Shannon v. Bradstreet, ii. 125, 131, 134, 142, 151, 153, 390, 415>417> 43^> Shapland v. Smith - - ii. 607 Shardelow v. Naylor - - ii. 21 Sharp v. Sharp, 139, 145, ii. 530, 531 Sharrington's case Shaw v. Jakeman - and Lawless v. Summers INDEX TO CASES CITED OR INTRODUCED. Page Savage v. Carroll, ii. 170, 174, 290, 306 and Mahon, 565, ii. 256, 258, 262, 263, 265, 270 Savage and Newport, 516, ii. 320 Savery v. Dyer - - - 247, n. Savil v. Stirling - - - - 336 Savile v. Blacket, 83, 85, 91, 99, 443. 450, ii- 567 Savill and Gardner - - - 336 Saunders v. Owen - - - 261 Saunderson v. Jackson - - 301 Sayle v. Freeland - - - - 327 Scambler's case - - - ii. 138 Scarborough (Lord) and Clark- son - - - - - - ii. 132 Sclater v. Travell - - 195, 347 Scott and Attorney-Gen. 171, 222 v. Bell - - - - ii. 251 and Hotley, ii. 388, 452, 45 6 > 457. 4 6 °. 4 6l > 4 62 > 477 Scrafton v. Quincey - - ii. 22 Scroggs v. Scroggs, 343, ii. 201, 583 Scrope v. Offley - 83, 88, ii. 211 Scrope's case - - - 374, 433 Seale v. Barter - - ii. 287, 289 Sealey and Sargeson, 289, 540, ii. 101, 102, 108, 125, 128, 136 Seaward v. Willock - ii. 60, n. Segrave v. Kirwan - - ii. 153 Serjeant and Parker, ii. 115, 252 Sermon and Delamere - - 14 Sewell and Wilson, ii. 334, 392, 393. 403. 411 Seymour and Clinton - - 559 and Coleman, 346, 569, ii. 5, 285, 293 — > — and Lord Hinchinbroke, 552, ii. 302 and Reith - 119, 328, 385 - - - 158 - - ii. 248 - - ii. 187 ii- 385. 39 2 - 512, 649 Shaiv and Read Shecomb or Slocomb v. Haw- kins, ii. 371, 373, 374, 398' 410 Sheddon v. Goodrich - - ii. 166 Sheldon v. Dormer - 539, ii 303 Shelley's case - - - 24, ii. 27 Shelley v. Earsfield - - ii. 24 Shephard v. Elton - - - 126 Shepherd v. Spencer - - - 273 Shergold and Reid, 123, 270, ii. 15, 100, 139, 521 Shiphard v. Lutwidge - - ii. 31 Shirley v. Ferrars - - - ii. 29 and Notts - - - - 108 Shore and Attorney-Gen., ii. 533 Shorral and Willis - - - - 49 Shortridge v. Lamplugh - 193 Shove v. Pincke - - - - ii. 15 Showell and Cull - - ii. 161 Shurmer and Macey, 562, ii. 187 Sibthorpe and Attorney-General, ii. 101 Simeon v. Simeon, 303, 311, 328 Simpson and Doe - - - 127 v. Hornby - - 127,334 XX.xiv] INDEX TO CASES CITED Page Simpson v. Paul, 358, 370, 371, 235 Simson r. Jones - Sitwell v. Barnard siaicr and Edwards 91, 99, 180, 372 11. 210, - - a 1 7 540, ii.3^0 56, 83, 85, ii. 46, 398, 5 (J( >> 5t>7> 568 Slee and Croft - 127, 386, ii. 585 Sloane v. Cadogan, 292, 385, 447, ii. 101, 584 Slocomb or Shecomb v. Haw- kins, ii. 371, 373 5 374,398,4io Smallbrook and Fitz - - - 157 Smith v. Ashton, ii. 102, 112, 124, 136 v. Baker - - - - ii. 117 and Bovey - - - - 358 and Brice - - - - 317 v. Campbell - ii. 2j8. 2G0 v. Lord Camel ford, 576, ii. 3, 64, 69, 170, 228, 238, 273, 296 v. Carr - - - - ii. 195 Smithy. Death - - - - 101 Smith and Doe dem. Chatta- way ------ ii. 260 and Doe dem. Karl of Jer- sey, 431 , ii. 448, 457, 459, 461, 462,464 — and Ellis, 266, n., 317, 327 — ». Evans - - - 266, n. — v. Leigh - - - - ii. 531 — and Parkhurst - - - 34 and Pitt - - - - ii. 195 — and Pybus - - - - 210 — and Right - - - ii. 336 and Robinson - ii. 5, 190 — and Shapland - - ii. 607 — v. Trinder - - ii. 433, 435 and Wagstaff - 209,211 — v. Wheeler, i-i~, 230, 474 oil INTRODUCED. Page Smith v, Wigsell - - - - 118 and Wright ii. 415, 419,425 Smyth and Biggot - - - 25 and Doe ----- 49 Smyth (ex parte) - - - ii. 132 Snape v. Turton, 53, 84, 116, 291, 358,375,433, 518 Sneyd and Langley - - ii. 20 Sneyd or Sneed v. Sneed or Trevor - ii. 100, 135, 136, n. Snowden and Doe - - ii. 392 Sockett v. Wray - - - 210 Somers (Lord) and Pole - ii. 163 Somerville v. Lethbridge, ii. 60, n. Souch and Witchcot - - ii. 174 Southampton (Lord) v. Lord Hertford ----- 494, Southby v. Stonehouse, 559, ii. 16, 26 Southwell v. Ward - - ii. 533 Speake v. Speake - - - ii. 318 Spencer and Bagshaw - - 174 and Hill - - - - ii. 194 (Lord) r. Duke of Marl- borough - - 180, ii. 63, 299 and Shepherd - - - 273 v. Spencer - - 567. 576 Sperling v. Rochfort - 209, 210 Sprange v. Barnard - 299, 301 Spring v. Biles, 450, 562, 564, ii. 256, 262, 265 Spurgeon v. Collier - - ii. 249 Spurrier and Dann - - ii. 361 Stables and Blackburne - ii. 257 Stackhouse v. Barnston - ii. 46 Stafford (Karl of) v. Buckley, 116 (Marquis of) and Rex, 505, ii. 218, 607 Stafford's (Lord) ease - 86, 507 Stamford v. Omly - ii. 134, 330 Stampe r. Cooke - - - ii. 261 INDEX TO CASES CITED OR INTRODUCED. XXXV Page Standen v. Bullock - - ii. 243 v. Standen or Mac- nab, 127, 387, 388, 394, 395, 397> 403> 417, 4i9> 420,423* 426, ii. 586 Stanhope and Griffin, 157, ii. 242, 247, 249 v. Kier ----- 312 (Lord) and Lord Mahon, ii. 512, n. Stanley and Lemayne 266, n. 301 Stanton v. Hall - - - ii. 297 Staple and Doe - - 194, 349 Stapleton's case - - - - 261 Stephens and Copeland - - 67 v. Olive - - - - ii. 251 Stibbert and Taylor, ii. 394, 520 Stileman and Ashdown - ii. 247 Stile v. Tomson - - - - 142 Stiles ».Cowper,ii. 132, 153, 333, 3^2 Stirling and Savil - - - 336 Stokes and Goodtitle, 557, ii. 609 Stone v. Evan - - - - 67 Stonehouse and Southby, 559, ii. 16, 26 Stratford v. Lord Aldborough, "•133/139> !50, 153 v. Powell - - - ii. 168 Stratton v. Best, 557, ii. 163, 226 and Butler - - - ii. 261 Streatfield v. Streatfield - ii. 158 Street and Barford - - -119 Stribblehill u. Brett - - ii. 214 Stride and Birde - - - - 266 Strode v. Russell - - - ii. 101 Stroud v. Marshall - - ii. 195 Stuart v. Lady Kirkwall - - 208 Sturgis v. Corp - - - - 213 Summers and Shaw, ii. 385, 392 Page Sumpton v. Sir Andrew Jen- ner ------- 359 Supple v. Lovvson, ii. 209, 262, 264, 265 Surman and Morgan, 394, 412, 421, 426,540,568,578,11. 181, 186 Sussex (Countess of) v. Wroth, »• 37 1 , 373> 374> 39 8 > 4'o Sussex's (Lord) case - - ii. 403 Sutherland and Casterton, 506, 531 , 534, ii- 186, 224, 267, C07 (Countess of) v. North- more ----- 184, 347 Sutton and Blore, ii. 125, 131, 132, 330,333 v. Jones - - - and Kenyon - - Swann and Horner - Swetnam v. Woolaston Swift v. Gregson - - and Lowe and Ward ii. 338 - 108 - 101 - 569 - " 564 ii- 134> 35 ( » - - 310 - - 126 Swiney and Haig - ' - - Sydenham and Cothay, 257, ii. 22 Sylvester and Dyke - - - 572 and Wilson - - - ii. 607 Symons v. Symons - - ii. 132 Symson v. Turner - - - - 163 Talbot v. Tipper, 547, 551, ii. 40, 454 Tankerville (Earl of) v. Coke, 88, 552, ii. 513 v. Wingfield - - ii. 456 Tankred and Attorney-Gen. ii. 101 Tanner and Wollen, 563, ii. 162 Tapner v. Merlott - - - 557 Tarback v. Marbury, ii. 32, 242, 253 XX.wiJ INDEX TO CASKS CITED OR INTRODUCED. Page Target v. Gaunt - - - ii 177 Taylor and Browne, 431, 51 1, 513, 5H r. George - - - ii. 18 r. Horde, ii. 334, 4 4G9, 475 Vernon (Lady) v. Jones - 361 XXXvili] INDEX TO CASES CITED OR INTRODUCED. Pagt Vernon v. Vernon - ii. 125,318 Vernon's case - - - 173, ii. 33 Vigor and the Attorney-Gen., 376 Villareal and Da Costa, ii. 315, 317 Villers and Wegg or Heyns, 24, 28, 29 Vincent 0. Ennys - - - 58, 89 and Habergham, 156, 275, 443 v. Lee - - - - 142, 339 and Pearce - - - ii. 237 W. Waad and Douglasse - - ii. 246 Wade and Birch, ii. 175, 2C5, 269 and Cole, 148, 224, ii. 259, 265, 266, 267, 270, 492 v. Paget, 289, 437, ii. 136, 282 Wadham and Roach, 110, 452, ii. 29 Wagstaff v. Smith - - 209, 211 v. Wagstaff, 262, 298, 368, 431 Wake r. Wake - - - ii. 168 Wakeford and Wright, 305, 314, 317, 324^329. 330, ". 578 Wakeman and Waker or Walker, ii. 347, 348, 349, 350 Waker or Walker v. Wake- man, - ii. 347, 348, 349, 350 Walker v. Laxton - - 392, 450 v. Mackie - 391,398,422 and Menzey, 352, 562, 569, ii. 238, 301 and Perkins, 389, 361, ii. 194 and Woodmeston - - 204 Wall r. Thurborne - 485, 569 Waller and Andrews, ii. 117, 120 and Bacon - - - ii. 387 Page Wallinger and Walsh, 270, ii. 183 Wal lis and Lawrence - ii. 14, 19 Wallop v. Lord Portsmouth, 394, 39 c \ 41 7> 4*9> 425» "• 92, 588 Walpoler. Lord Conway, ii. 2, 3, 5 Walsh v. Wallinger, 270, ii. 183 Walsingham and Noel, ii. 216, 226, 230, 233 Walter v. Maunde, 149, ii. 2G6, 270, 504 Waltham and Watson - ii. 522 Warburton and Bayley. 184, 185, 195, 200 v. Warburton - - ii. 190 Ward and Attorney-Gen., ii. 238 and Bainton - - - u. 30 v. Baugh - - ii. 161, 169 v. Booth - - - - ii. 152 and Douglas - - - ii. 246 v. Hartpole - 545. 550 v. Lenthal, 267, 478, 479, 480, 482, 485 v. Moore - - ii. 7, 10, 11 and Southwell - - ii. 533 v. Swift 310 Warde and Bristow, 222, 553,576, ii. 64, 65, 68, 162, 238, 273, 294, 296 Ware v. Polhil, ii. 480, 492, 493, 494 Wareham v. Brown - - - 538 Waring v. Coventry - - ii. 496 Warneford v. Thompson, 116, 538, ii- 174 v. Warneford - - 266, n. Warner and Hardwin, 227, 230, 231, 289 W T arr v. Warr - - ii. 303, 305 Warren v. Arthur - - - 224 Warwick v. Garrett or Gerrad 161, ii. 2 INDEX TO CASES CITED OR INTRODUCED Page ii. 242 245, n. - - 204 - - ii. 388 • - ii. 522 ii. 22, 101 - - ii. 101 ii. 330, 331 - - ii. 166 Waterhouse and Buller Waterworth and Ripley Watson's (Miss) case Watson and Doe - ■ v. Waltham - - Watt v. Watt - Watts v. Bullas and Doe - Wauchope and Ker - Wayne and Lady London- derry - ii. 315, 317, 318,319 Webb v. Dixon - - - ii. 361 v. Honnor - - 387,390 v. Lord Shaftsbury, ii. 532 v. Temple - - - - 107 ■ and Lord Teynham, ii. 213, 290, 292, 293 Webster and Whistler, ii. 161, 162, 273 and Worme - - - 374 Weekes and Outon - - - 157 Wegg i'. Villers -28,31,36,39 Welby v. Welby - - - ii. 160 Welch v. Fisher - - - ii. 389 Weller and Doe, ii. 3, 104, 147, 151,332 Wellington and Poulson, 257, 294, ii. 125 Wells v. Faron - - - - 272 and Billingsley - - ii. 292 West v. Berney - - 98, ii. 281 [xxxix Page Whaley v '. Drummond - - 270 Whalley and Townesend, 145, 255 Wheate and Burgess - ii. 174 v. Hall, 42, 178,^.484,510, 511 Wheeler and Palmer, 509, ii. 202, 207 and Smith 227, 230, 474 West and Freeman ■ and White - - ». 338 - "• 570 - - 317 - " 540 ii. 73, 76 Westbrook v. Kennedy Westby v. Kiernan - Westcott and Beard - and Bradly, 123, 127, 386, ii.585 Western and Folkes, 526, ii. 170, 216, 226, 229, 230, 232 Westfaling v. Westfaling, 245, n. and Taylor - - - ii. 100 Whelpdale's case - - ii. 193 Whetstone (Lady) v. Berry, 171 Whichcote and Bartram, ii. 508 Whiskon v. Cleyton - - - 119 Whistler and Newman - - 209 v. Webster, ii. 161, 162, 273 Whi thread and Bax, 569, 571, 572,576 Whitcombe and Pope, ii. 262, 266, 267, 270, 650 White and Acton - - - - 212 and Berry, 57, ii. 335, 354, 373, 374, 380, 398, 410, 453 u.Collins - - - ii. 60, n. v. Parker - - - ii. 529 and Parkes, 79, 209, 210, 211 and Pike - - - ii. 118 v. St. Barbe - - ii. 282 v. Sansom - - - ii. 253 v . West - - - - ii. 570 White v. White - - ii. 160, 258 White and Wilkinson - - 131 Whitehead and Doe - 291, 293 and Perry - - - ii. 101 Whitehorne v. Harris - ii. 257 Whitfield and How, 152, 223, ii. 412, 441, 442 Whitlock's case, 514, 515, 51 s , 517, ii. 40, 141, 338, 354, 37°, 37G, 452, 453, 476 xl] INDEX TO CASES CITED OR INTRODUCED. Whitlock and Chappel - Whitmore and Palmer - Whittam and Benson Wichcrly c. WicliL-rly Widmore o. Woodrofte, Page - 5H - 263 ii. 189 ii- 325 ii. 256, 259 - 116 - 118 Wiglesworth and Greene Wigsell and Smith - • Wigson v. Garrett or Gerrad 93 Wilde v. Fort - - - ii. 35 «• Wilder and Blatch - - - 138 Wilford and Bulkley - ii. 153 Wilkes v. Backs - - - - 256 r. Holmes, 155, 298, ii. 100, 102, 105, 136, 137 Wilkins and Lane Wilkinson and Jones Wilkinson r. White Willan r. Lancaster Willes and Clinton Willis and Clay - v. Shorral Williams v. Carter — — and Davies v. Drevve {ex parte) v. Jekyll - - - 447 - - - 380 - - - 131 - - - 295 - - - 208 - - ii- 31 - - - 49 - - ii. 485 - - - 401 - - - 173 - - - 270 ■ 245, n. ii. 214 ii. 60, n. ■ " 450 - ii- 138 Williamson v. Gihon, Willock and Seaward - Willoughby and Fowler Wilmer v. Kendrick - Wilson v. Doe, ii. 427, 430, 434, 439, 460, 462 Wilson and Grace - 271,11.296 p. Mount - - - ii. 159 v. Piggott, 258, 260, 371, 5^9> 515, ii- i 2 5> 236, 238 r. Sewell, ii. 334, 392, 393. 403.411 and Sylvester - - ii. O07 Page Wilson and Townsend, 145, 337, ii. 488, 489, 490,491,492 V. Lord John Townshend, ii. 1H9 Wiltshire and Bentham, 135, 139 and Doran, 343, ii.513, 515 Wimbles v. Pitcher - - ii. 261 Winchelsea (Earl of) and Hurst, 394>39 6 > ii- 13, 19. 20, 21 Winchester's (Marquis of) case ------- 226 Winder and Brograve, ii. 301, 324 Windham v. Graham - ii. 212 and Lord Townshend, 1 1 9, ii. 30 Windsor's (Lord) case - 245, n. Winford and Lutwich - ii. 516 Wingfield and Earl of Tanker- ville ------ ii. 456 Winstandley's case - 466, 478 Winston and Bould - - - 32 Winter and Leigh, 88, 99, 100, ii. 242 v. Loveday, 520, ii. 348, 352, 354, 369, 385 VVinwood and Fielding, ii. 117, 118 Witchcot v. Souch - - ii. 174 Witham v. Bland - - 475, 485 Withers and Doe - - - ii. 469 Witts r. Boddington, ii. 181, 182 1. Dawkins - - - 210 Wollen r. Tanner, 563, ii. 162 Wontner and Foley - - ii. 533 Wood and Broadmead - ii 291 and Eilbeck - - ii. 15 v. Reignold - - - - 32 Woodford and Rendlesham, ii. i(i8 Woodford and Thellusson, 495, ii. 157, 1G0, 1G6, 167, 1G8, 285 Wuodhousc Vt Hoskins - - 180 INDEX TO CASES CITED OR INTRODUCED, Page Woodie's case - - - - ii. 252 Woodmeston v. Walker - - 204 Woodroffc and Widmore, ii. 256 259 Woodward v. Haslet) - 269, 270 Woolf v. Hill - - - - ii. 513 Woolaston and Swetnam - 569 Woolridge and Brunsden, ii. 258, 263, 265 Woolston and Zouch, 88, 358, ii- 9 6 >3iO, 322 Worcester's (Dean and Chap- ter of) case - - - - ii. 343 Wordale and Hyer - - ii. 174 Wordsworth and Nicloson - 49 Worme v. Webster - Worrall v. Jacob - - Wray and Sockett Wright v. Atkins, ii. 172, 187, 260 v. Barlow - 282, 290, 309 and Bradbury - - ii. 31 7 r. Lord Cadogan, 190, 191, 19 2 ' 195*200 v. Englefield - - - 190 v. Cadogan - - - - 192 and Jesson - - - ii. 287 r. Pearson - - - - 174 ■ v. Rutter - - ii. 161, 163 v. Smith - ii. 415, 419, 425 v. Wakeford, 306, 314, 317, 324. 329> 330, ii-57 8 Wroth and Countess of Sussex, ii-37*> 373, 374* 398,410 - 374 - 47o - 210 [xli Page Wroth and Leaper,ii. 334, 371.374 Wykham v. Wykham, 261, 374, 501, ii. 87, 601 Wyn and Lyn - - ii. 369, 404 Wynne r. Griffith - - - 456 Wynter v. Bold - - - ii. 6, 304 Wytham and Hixon - - - 275 Y. Yate v. Mosely - - - ii. 168 Yates v. Boen - - ii. 195, 196 Yates v. Compton - - 129, 130 Yerworth and Nurse - - ii. 257 Yielding and Harnett - ii. 134 Yelland or Yeoland v. Ficlis or Fettis - - - - 52, ii. 47 York (Archbishop of) and Roe, 442, 443, ii. 193, 392, 413 Young v. Cottle - - - - 487 and Elmsley - ii.260, 261 ■ and JenKins - - - -166 Year Books. 38 E. 3, pi. 3 - - - - .130 49 E. 3, 16, pi. 10 - 120, 12 1 > !7> 131 9 H. 6, 24 b, 25 a, - - - 128 11 H. 6, 13 b, - - - - )2 8 15 H. 7, 11 b, - - -48,535 19 H. 8, 9 ..... 145 Zouch v. Woolston, 88, 358, ii. 96, 310, 322 f TABLE OF STATUTES CITED. Page Richard III. 1, c. 1, (Uses) - - - 7, io, 23 Henry VIII. 21 , c. 4, (Sales by Executors), 1 39 27, c. 10, (Uses) - - 7, 23, 174 — c. 16, (Inrolments) - - 9 32, c. 1, (Wills) -.-- 174 — , c. 28, (Leases) - ii. 341, 400 33, c. 20, (Treason) - - - 226 Elizabeth, i, c. 19, (Leases) - ii. 400, 405 1 3> c ' 5> (Fraudulent Deeds) ii- 253 13, c. 7, s. 2, (Bankrupts) - 234 — , c. 10, (Leases), ii. 364, 399, 4°5> 432 18, c 11, (Leases), ii. 319, 401, 405 27, c. 4, (Voluntary Convey^ ances) - - - ii. 240 35> c - 5> (Englefield's Forfei- ture) - - - - 229 43, c. 4, (Charitable Uses) - 267 James I. 2, c. 3, (Leases) - - - ii. 402 21, c. 19. s. 1, (Bankrupts) - 235 Page Charles II. 29, c. 3, s. 3, (Surrenders), ii. 193 , s. 4, (Surrenders), ii. 247 , s. 5, (Wills) - - 2G6, n. Anne. 7, c. 21, (Treason) - - 226, n. George II. 4, c. 28, (Leases), ii. 457, 464, 465 9> c- 36> (Charitable Uses), 267 17, c. 39; (Treason) - - 226, n. George III. 39 & 40, c. 41, (Leases), ii. 433, 435 , , c. 93, (Treason), 226, n. 41. c. 70, s. 26, (Powers in insolvent debtors) - 233 53, c. 102, s. 18, (Powers in insolvent debtors)- 233 54. c. 23, (Insolvent debtors), 234 — , c. 168, (Attestation) - 344 George IV. 1, c. 119, s. 12, (Powers in insolvent debtors), 234 6, c. 16, s. 77, (Powers in bankrupts) - - - 23b' TABLE OF STATUTES CITED. Page XJlll Page William IV. l, c. 46, (Illusory Appoint- ment) - - - 579 — , c. 47, s. 11,12, (Power to Tenant for Life, &c.) -237 — , c.6o,s. 3,4. 5, 13, (Lu- natics) - - - - 237 , s. 6, 7, 13, (Infant Trustees, &c.) - 237 , s. 17, (Power to Tenant for Life, &c.) 2 37 , (New Trustees) ii. 532, 533 ? 534 William IV. 1, c. 65, s. 17, (Leases by Infants) - - ii. 337 , s. 16, 17, 24, 27, (Leases) - - - 238 , s. 23, (Lunatics) 237 3 & 4, c. 74, (Fines and Re- coveries), 102, 103, 104, 344 ,s. 47, - - ii- 122 , s. 77, 78, - - 104 , c. 105, (Dower) 249> "■ 36, 322 , c. 106, s. 3, (De- scent), ii. 5, 13, 21, 160 - 2S8 c* 65, s. 12, 13, (Surren- ders of Leases), 237 ' 5 & 6, c. 17, (Leases) , s. 16, (Renewal of Leases; - - ii. 336 1 ADDENDA. Add a reference in n. (I.) vol. i. p. 207, to •' Davis t . Thornycroft. Appendix, No. 22, a decision by the Vice Chancellor in favour of a gift to the separate use." Add a reference in vol. ii. p. 237, to " 2 Bing. N. R. 328, where it appears the Common Pleas, in Pearce v. Vincent, agreed in opinion with the Exchequer ; and see 1 Cro. & Mee. 509." Add a reference in vol. ii. p. 295, pi. 6, to "Thornton v. Bright. Appendix, No. 31." A TREATISE OF POWERS. CHAPTER I. OF THE NATURE OF POWERS BEFORE AND SINCE THE STATUTE OF USES. SECTION I. i . Powers classed. 2. Authorities. 3. Equitable Potvers. 4. Powers under the Statute of Uses. 1. POWERS are either common-law authorities; declarations or directions operating only on the con- science of the persons in whom the legal interest is vested ; or declarations or directions deriving their effect from the statute of uses. 2. A power given by a will (I), or by an act of par- liament, — as in the instance of the land-tax redemption acts, — to sell an estate is a common-law authority. 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 attorney is (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. n OF l'.".\ ERS BEFORE is also a common-lav authority; but the estati is qoI in this, as in the other cases, actually transferred by the instrument creating the power. It is a mere au- thority to execute a conveyance in the place of the principal; and the estate, therefore, must be conveyed by the attorney, with the same solemnities as would have been requisite upon a transfer executed by the principal himself. 3. A power to dispose of an estate, or a sum of money, where 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 created wifli the legal right. 4. To understand correctly the nature of powers de- riving their effect 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 2dly, The effect of the statute (a). The simplicity of the common law was admirably adapted to times when transfers of property were not frequent. It was essential to the validity of such trans- fers, that corporal possession of the land should be de- livered to the purchaser in the presence of his neigh- bours ; thus, every one's title was publicly known, and secret and fraudulent transfers of property never could take place. This mode of transfer was termed a feoff- 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 de- feated by the mere execution of a deed ; and, therefore, a power of revocation annexed to a feoffment was void in its very creation. A condition, it is true, might at all (a) See the Introduction to Gilbert on Uses. THE STATUTE OF USES. all times have been added to a feoffment ; but the strict rule of the common law did not permit the breach of such a condition to be taken advantage of by any but the feoffor or his heirs — principally with a view to pre- vent maintenance. These rules opposed an effectual barrier against 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 not be surprised that at an early period a mode was invented to defeat the excessive rigour, and subvert the simplicity of the common law. This was effected by the introduction of uses. It is not within the plan of this work to consider the precise time when, or by whom, uses were introduced. The nature of them only requires our attention. A 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 Frowick, afterwards Chief Justice of the Common Pleas, remarked, 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 merest stranger in the world. To prevent, in some measure, the conse- quences of this doctrine, it became usual to have several joint feoffees ; so that, on the death of any, the estate might survive to the others, and not be subject to the dower of the deceased's wife, &c. And it also became b 2 customary OF POWERS BEFORE customary for the owner himself to be pne pf the feof- fees j nor did any inconvenience result from this prac- tice; for the judges held, that although the use was in part suspended, vet it ought be disposed of in the same maimer as if the entire Legal estate was vested in others. This mode of conveyance became indeed so common, that in the statute of uses, to which our attention will presently be called, an express provision was inserted to meet this case. Equity, after some time, and by degrees, assumed the jurisdiction which it now exercises, in enforcing the performance of trusts and contracts. The person who had conveyed his estate, or the cestui que use, as he was then termed, answered almost precisely to the cestui que trust of the present day. After uses were 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 feoffment at common law, that a power should be reserved to revoke it, yet there was 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 the estate. And, for the same reason, the owner might direct the trustee to convey as a stranger should appoint, although a power of entry for a con- dition broken could not be reserved to a stranger on a common-law conveyance. Equity, however, only lent its aid where there was a valuable or good consideration. The first arose upon a real contract, and was termed a bargain and sale. It was, in fact, originally a mere contract by A to sell his estate to B, although in process of time it became a mode of settlement, and equity did not inquire into the amount of the consideration ; the second was also a mere THE STATUTE OF USES. mere contract or agreement, 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 order to comprehend the doctrines which 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 party. Now a covenant to stand seised, or a bargain and sale, did not transfer the possession to the covenantee or bar- gainee : it w as a mere contract, and was, therefore, termed a conveyance, not operating by transmutation of possession ; the party with whom the contract was made could obtain relief in equity only, 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 possession, as a fine, re- covery, feoffment, or release, which vest the legal estate in the conusee, recoveror, feoffee, or releasee, and uses were declared on such a conveyance, equity did not inquire into the consideration : 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 to execute the directions of the donor. This is clearly laid down by St. German, who says, that when an use is in esse, he that hath the use may, of his mere motion, give it away if he will, without recompense, as he might the land if he had it in posses- sion. But he took it for a ground, that he could not so begin an use without livery of seisin, or upon a recom- b 3 I >cnse OF THE STATUTE OF USES. pense or ground ; and the doctrine is referred to its true principles. This 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 valuable consideration is, according to the above rule, absolutely necessary ; but if 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 express that a nominal consideration, — for example, 10 s. — was paid; nor is a consideration necessary, although uses are declared by the release, for they fall within the above principle. This distinction, which was never de- nied, was expressly taken in the case of Pawlyn v. Hardy (b), where it was determined, that if he in rever- sion release to the tenant in possession, all his estate, right, title, &c. there need no consideration to be men- tioned or proved, it is good without ; otherwise, if by grant, &c. (0) Mich. 36 Car. II. B. R. MS. SECTION II. OF THE STATUTE OF USES. 1 . Statutes of Uses* 3. Uses not destroyed. 4. Hotv raised. Use upon a Use not allotoed. Modern Trusts. 1. Manifold frauds were the consequence of the in- troduction of uses; heirs were unjustly disinherited; the King lost his profits of the lands of attainted persons, aliens OF THE STATUTE OF USES. aliens born, and felons ; lords lost their wards, marriages, reliefs, heriots, escheats, aids; married men lost their tenancies by 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 3cl(c), 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 avoided by, as it is usually termed in conveyances, transferring uses into possession, or, perhaps, to speak more correctly, by transferring or turning uses into pos- sessions. With this view, the statute of 27 H. VIII. c. 10, commonly called the Statute of Uses, was passed, which 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 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 posses- sion of and in the same honours 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 (c) 1 R. 3. c. 1. B 4 Of Till; STATUTE OF ISKS. that was in such person or persons, that were, or there- after should be seised of any lands, 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, after 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, 1st, 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 former 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. 2. It has been quaintly said, that uses were by this act, with an indissoluble knot, coupled and married to the land, which, of all the elements, is the most ponde- rous and immovable. 3. Whether the Legislature did, or did not, intend to crush uses, it is not material for us to inquire (d), as it was soon settled that uses might still, as formerly, be raised, upon which however the statute would instantly operate ; but neither the Legislature nor the Judges admitted uses with all the latitude of construction which was adopted before the statute of uses : Previously to the statute, a mere contract unenrolled by A to sell his estate (d) Sec n. (1) to Gilb. on Uses p. 139. OF THE STATUTE OF USES. estate to B was sufficient, without words of inheritance, to pass the equitable fee to the vendee, but the Legisla- ture, by an act passed immediately after the statute of uses(e), required, that to transfer the legal estate by force of that act, such contract should be by deed enrol- led. And the Judges resolved that words of inheritance were absolutely necessary to pass the fee at law. At this day, it is clear that a mere contract to sell for a valuable consideration paid, importing a future conveyance, would not raise a use in the purchaser, so as to attract the statute, although by deed duly enrolled, 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 conveyance. 4. To the raising of a use which the statute will turn into a possession, it is necessary that there should be, 1st, one person seised to the use of another, in esse ; and 2dly, a use in esse, but whether it is limited in possession, remainder, or reversion, is immaterial. Thus, where a man, for a valuable consideration, contracts to sell an estate to another in fee, which contract is properly enrol- led, or, as we now term it, conveys his estate by bargain and sale enrolled, equity instantly fastens on the con- science 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 a use in possession is limited ; immediately, therefore, on the enrolment of the deed (_/"), the legal estate, by force of the statute of uses, vests in the bargainee as effectually as it would have done (e) 27 H. VIII. c. 16. Note, this act did not extend to covenants to stand seised, and only to estates of freehold, or inheritance. (/) Sec n. (!■) to Gilb. on Uses, p. 208. 10 OF THE STATUTE or USES. done at common law by a feoffment, accompanied with livery of seisin or corporal delivery. Had it not been for the statute of enrolments the legal estate would have vested in him upon the execution of the deed. 5. By an unaccountable construction of the courts of law it was held that a use could not be limited on a use, that is, that the statute would operate on the first decla- ration 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 (g). 6. The Court of Chancery soon seized upon this nar- row construction as a pretext to revive uses under the name of trusts; and accordingly it was determined, that B was in conscience a trustee for C, and should be com- pelled to convey the estate to him. This equitable branch of jurisdiction was extended by the resolution of the courts of law, that neither copyhold nor leasehold estates could be conveyed to uses upon which the statute would operate. A term of years may of course be created out of a freehold estate by way of use, but when it is once a subsisting interest it cannot be conveyed to uses. Therefore if it were assigned to A to the use of B, the legal interest would remain in A, who, however, would in equity be deemed a mere trustee for B(Ji). (g) See n. (l) to Gilb. on Uses, p. 347. (h) The discussion in the first edition, on the Stat, of Richard III. will be found in n. (2) to Gilb. on Uses, p. G7. OF SCINTILLA JURIS. 11 SECTION III. OF SCINTILLA JURIS. 1. Powers before the Statute, j 9. Doctrine discussed. 2. Pollers after the Statute. ' \ Scintilla Juris. G.J 5. Necessity of Entry before the Statute. 7. Chudlei^h's Case. 8. Sir Edward Coke's Case. 10. Points supposed to be esta- blished. 1 1 . Inconveniences of the supposed rules. 12. The true construction of the Act. 1 . Powers before the statute of uses were, as we have seen, mere directions to the trustee of the legal estate how to convey the estate ; in truth, they were future uses to be designated by the person to whom the power was given (i) : these, as they arose, equity compelled the trustee to observe ; and when 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 by 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, with- out 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 possession, (i) See the n. to Gilb. on Uses, p. 118. 1- OF SCINTILLA JURIS. posses-ion, and built thereon by civil equity; and that the statute only imbued the possession with the quality, form, and condition of the use, but did not effect any alteration in the mode of limiting and raising present and future uses, which remained as before (/*). And accordingly Man wood laid it down in Brent's case, tint although the possession was executed to the use, yet the property and quality, as abstracted from the pos- session, should not be drowned in the possession (/). 2. Powers after the statute still remained as mere rights of designation which bound the conscience of the trustee, and the estates to be created by 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 sta- tute, it is necessary that there should be a use in esse ; whereas the uses to be raised under powers 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. 3. 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 a use could not arise out of a use. It is observable, that most of the Judges who espoused (k) Anon. Mo. 608. The arguments in this case are deserving of the Student's attentive perusal. 00 Sec 2 Leo. 16. OF SCINTILLA JURIS. 13 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 nubibus, in marc, in terra, or in custodia legis ; they also seem to have been of opinion, that contingent uses could not be barred. Again, some thought that the trustees were merely pipes, through whom the estate was conveyed to the uses as they arose, while others thought that so much of the inheritance as was limited to the contingent uses remained actually vested in the feoffees till the uses arose. 4. 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 modern works written upon uses. 5. Before the statute of uses the feoffees to uses were absolutely seised of the legal estate, and, therefore, if cestui que use levied a fine, or executed a feoffment, the entry of the feoffees was requisite, because the wrong was done to them ; and if such feoffees were disseised before the statute, no use could be executed after the statute, except by their entry ; for the statute only exe- cuted those uses to which any person was seised, which they who were disseised of course could not be. Thus, Deiamere's where Robert Delamere 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 Delamere his brother, in fee : Robert Delamere before the statute enfeoffed another in fee, who also before the statute en- feoffed another in fee, and he made a feoffment in fee over to Simon Delamere after the statute, who again enfeoffed another. After the death of Robert, Delamere, and case 14 OF SCINTILLA JURIS. and the first Feoffees, the heir of the survivor of suclr feoffees entered to revive the use to the wife of Robert Delamere, and the entry was adjudged to be lawful (m). This case, at first view, does not appear to be relevant to the point in discussion, but it had considerable in- fluence over future decisions ; and cases where a clear seisin existed were confounded with this case in which the statute could have no operation till a seisin was regained by entry. Brent's 6. The doctrine of scintilla juris was first started in Brent's case, which arose six years after Delamere's case 00- A feoffment was made by Robert Brent after the statute to divers persons ; to the use of himself, and Dorothy his wife, for their lives ; remainder to the use of himself, and of any after-taken wife, for their lives ; remainder to B in fee. Afterwards B with the feoffees, by consent of the feoffor, joined in a feoffment to new feoffees, to the use of the feoffor, and Dorothy his wife, for their lives, remainder to A in tail, remainder to the feoffor himself; and he levied a fine with proclamations to the same uses. The wife died, the husband took a second wife, and died. The second wife, by the assent of the first feoffees, after five years had passed since the fine, entered to raise the use to her under the first feoff- ment. The cause was compromised ; but the case is very important, because it shows the difficulties under which the Judges laboured with respect to the construc- tion of contingent uses. The case was first heard in the King's Bench, and in the next year it came on in the Common Pleas, when Mounson held that the wife might enter of her own authority, and that she was well en- titled. His opinion appears to have been, that future uses {m) Delamere v. Sermon, Plow. 346, 10 Elizabeth. (n) Dyer, 340 a, 2 Leon. 14, Dall. 112. OF SCINTILLA JURIS. 15 uses could not be barred. And Manwood aimied strongly in favour of uses, and held, that the wife was capable of the use according 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 re- sulted to the feoffor. Harper, who was thoroughly ac- quainted with the reasons and intent of the makers of the act, said, that they intended 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 Manwood. Dyer, Chief Justice, said, that it was to be granted that the statute doth divest all out of the feoffees, yet it doth not divest it before that the use be vested in cestui que use ; the vesting of the use ought to precede the execu- tion 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 whole in- terest was not divested or driven out of the feoffees until the whole trust was accomplished, that is, until all the uses limited upon the feoffment were executed, and had their full perfection. This is according to Leonard's, which is by far the best report of the case. According to Dyer's own re- port, Manwood and he held that it was necessary for the feoffees to enter to revive the use ; and although by the words of the statute the freehold of the land and the fee simple also of the feoffees are vested in the cestuis que 1 ,; op B< in 1 1 1. 1. a juris. que use, yet, as it is expressed, adkuc remanet qucedam sciiiiilhi juris rt lit nit, quasi medivtot . the preservation of the law : and he insisted that the statute did not require the cestui que use to be in esse. They agreed that uses and estates ought to be governed by the same rules, but they were in favour of the uses, because not having been in esse they thought that they could not be suspended. On the other hand, the remaining nine Judges, or at least eight of them, agreed " that the feoffment made by the feoffees, who had an estate for life by limitation of the use, divested all the estates and the future uses also ; " for as Gawdy, who was one of those Judges, ob- served, 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 differ- ence when the estate of the tenant for life determines by his death, and when it determines in right by his forfei- ture, 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 the 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 feoffees, 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, and 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 dis- turbed by disseisin or otherwise, the feoffees would have power OF SCINTILLA JURIS. 21 power to enter to revive the future uses, according to the trust reposed in them, unless they did by any act bar them- selves of their entry. But the resolution of the eight Judges was merely that contingent uses might be de- stroyed or discontinued before they came in esse, by all such means as uses might have been discontinued or destroyed by the common law ; but Periam and Walmes- ley did not agree to this. It appears (p) that Gawdy was for placing contingent uses on exactly the same footing as contingent remain- ders ; 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 statute, for the purpose was to remove all the estate from the feoffee, and to put it in cestui que use wholly, (to wit) in possession to the uses which were in esse, and in abeyance 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, with 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 is 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 dies, or commits a forfeiture, and deter- mines his estate in the life of J. S., his heir shall never have (©) Popli. 70, 1 Rep, [35 a. c 3 22 OF SCINTILLA JURIS. 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'a own argument, " And nota, that by a disseisin, the con- tingent 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 exe- cuted. But by the release of the feoffee, or his heirs, the contingent in such a case, by Popham" (observe), " is barred of all possibility at any time to be executed." And according to his own report, he said plainly, that if the exposition made on the other side shall take place, it will bring in with it so many mischiefs and inconveni- encies, to the universal disquiet of the realm, that it will cast the whole commonwealth into a sea of troubles, and endanger it with utter confusion and drowning ! ! Coke's report has hitherto been referred to, because that is the authority always quoted in favour of the scintilla ; but Lord Chief Justice Anderson's report of this case is indisputably the best (p), and from that it appears clearly, first, That the Judges were of opinion, that not a mere scintilla remained in the feoffees, 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, secondly, that they went upon the intention of the statute to extirpate uses, and the mischief which would ensue (p) 1 And. 309. See an abstract of a translation of the report in Sugden's Gilb. on Uses, A pp. p. 521. OF SCINTILLA JURIS. 23 ensue from supporting them. They showed that the statute of Richard the Third only took as much out of the feoffees as was granted away by the cestuis que use. And they said that this statute and the statute of uses were one in effect ; and that there was no reason to make any difference as to the purpose of extirpating or extin- guishing the estate of the feoffees more upon the statute of 27 H. 8, than the statute of Richard 3. And they held, that if a feoffment at this day be made to the use of one for years, and afterwards to the use of another in tail, and afterwards to the use of the right heirs of the tenant for years, the lease for years ends, the tenant in tail levies a fine, with proclamations, the lessee (living the feoffees) after the estate-tail is ended recovers the land, the fee is in them and no other ; and if afterwards the lessee for years die, leaving an heir, he now (by the death of the tenant, and by the statute) is seised of the land in fee, and thus it is in all these contingent uses when they come in esse, and an estate is left in the feoffees hy which they may enter. When Chudleigh's case is attentively considered, our surprise cannot fail to be excited at it's 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 (I) Let not our just admiration of Sir Edward Coke's profound legal 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 of others, in order to support his own ? C 4 ■J I OF SCINTILLA JURIS. Justice Popham's report of the same case, this opinion is given as coining 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 arguing the case of Heyns and Villars(<7), said, that it is reported by the Lord Anderson in his private re- ports, 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 Chitdleigh's case as they never delivered. Anderson's severe censure of Coke's report of Shelley's case is in print, and well known, but I have not met with the observation alluded to on Chudleigh's case. It is ob- servable, that Finch speaks of the private reports of Anderson, and he must have seen the manuscripts of them, for his argument was delivered in 1658, and the first edition of Anderson was not published 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 ; for the observations of the other Judges, as re- ported by Popham, appear to the writer to be strongly in favour of the construction for which he contends. We may, therefore, safely conclude that this opinion was merely an obiter dictum of Lord Chief Justice Pop- ham's. Indeed, had the whole Court delivered this opinion it would not at this day be entitled to much attention. All the settlements in the kingdom are made by way of use, which is there styled impious ; and Coke calls the case, Chudleigh's case, " commonly called the case of perpetuities ." No settled notions then existed as to • [nfra. OF SCINTILLA JURIS. to the time within which contingent uses might be raised ; and it is evident, from the very name of the case, that the Judges were alarmed lest they should introduce perpetuities. Accordingly, it was said in Kent v. Harpool (q), that the great reason in Chudleigh's case, and other cases wherein contingent remainders have been held to be destroyed, was for the preventing perpetuities, which would have been let in if contingent remainders had been preserved. Pollexfen, in his able argument in Hales and Ris- ley (r), against the necessity of the feoffees entering to vest contingent uses, says, That at the time Chudleigh's case was adjudged it was not taken for law ; that the destruction of the particular estate by feoffment or con- veyance, 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 first adjudged. Pollexfen was right as to the time the cases were adjudged. Chudleigh's case was decided in the 37th, and Archer's in the 38th of Elizabeth, but the last case began in Trinity term in the 36th of Elizabeth ; and the opinion of the Judges was, that the contingent remainder was destroyed by the destruction of the par- ticular estate. The decision in Chudleigh's case cer- tainly, however, settled this doctrine, and was deter- mined on that point simply ; and that decision has always been adhered to (s). In Archer's case it was said that this point was so agreed by Popham, C. J. and divers justices in the argument of the case between Dillon and Frein (Chudleigh's case), and denied by none. It is a mistake 25 (?) 1 Ventr. 306. (r) Pollcx. 3 SO. (a) Sec Biggot v. Smyth, Cro. Car. ]0'J. 26 OF SCINTILLA JURIS. mistake to consider Archer's case as establishing the rule as to a contingent remainder. It merely restored the rule which had been impeached, for in Chudleigh's case the Chief Justice denied the opinion of Gascoigne in 7 H. 4, who thought that contingent remainders should not be defeated by the feoffment of the tenant for life. The argument upon the statute was merely to show that contingent uses were not protected against the effect of the feoffment. The points decided were, first, that the contingent uses were destroyed by the feoffment of the tenants for life, by analogy to the rule of law ; it was necessary to decide this point, in order to raise the second question ; and secondly, that they were not saved by the letter or equity of the statute. Coke ob- serves, that " the question in this case was no other but whether the contingent uses before their existence, by the said feoffment of the feoffees, were destroyed and subverted so that they should never arise out of the estate of the feoffees after the birth of the issues." This of itself shows that the question was whether the contingent uses were destroyed by the destruction of the particular estate, for it is manifest that the reporter refers to the estate pur auter vie in the feoffees ; and it cannot be objected to this interpretation, that the uses could not rise out of the estate pur auter vie, because the expression merely means that they take their rise from that as their root or dependence. Many of the Judges, however, at first held that the estate vested in the first cestui que use, subject to the contingent uses which should be executed out of his estate as they arose, although a less estate in interest was given to him. Coke, after reporting the arguments of the two Judges who argued in favour of the use, says, " and on the other side it was argued by the remaining nine Judges to the contrary." And it was agreed by them all OF SCINTILLA JURIS. 27 all that the feoffment made by the said feoffees, who had an estate for life by limitation of the use, divested all the estates, and the future uses also. Gawdy, particu- larly, observed, that the rule of law was, that he in the remainder must take the land when the particular estate determines, or else the remainder shall be void ; and in this case, forasmuch as by the feoffment of the tenants for life their estate was determined, and title of entry, and then, those in the future remainder were not in esse to take it, for this reason their remainders were barred. Of the same opinion was Popham, Chief Justice ; Baron Clarke and Owen. The Chief Justice denied the opinion of Gascoigne in 7 H. 4, who thought that such remainder should not be defeated by the feoff- ment of the tenant for life. And Coke, at the end, says, 1st, It was adjudged in this case, that where there is a tenant for life, the remainder in tail, the reversion in fee, and the tenant for life enfeoffs him in the reversion in fee, it is a forfeiture of his estate, and shall divest the estate-tail in remainder. This shows that the Judges held a feoffment to have the same operation over contingent uses as over contin- gent remainders. Indeed, as it appears that Popham only made the observation upon the scintilla juris, the decision cannot be accounted for on any other ground. We should never have heard of this fiction had it then been settled, as I apprehend it now is, 1st, 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- mainder, must take effect, if at all, eo instanti that the preceding estate ceases ; and 3dly, That springing uses must 28 C)[- SCIN II I.I. \ JURIS. must be so limited as to take effect, if at all, within the period of a life or lives in being, and twenty-one years afterwards and a few months, allowing for gesta- tion (t). These rules leave no danger to be apprehended from conveyances to uses, and they must now be sup- ported as the common assurance of the realm. Hitherto we must admit that this doctrine of scintilla juris was not settled. 5aw* 8. The case of Wego- and Villers, which first came \ dlers ' s Sir ^^ ' Kdward on m 24 Car. I, is very important on this point, not, case). indeed, in regard to the judgment, but by reason of the dicta of the Judges. 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 succes- sively, 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 feoffment 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 from arising, because it was without consideration, and the first uses were recited in the grant ; so the grantee had notice, and therefore took the lands subject to the grantor's covenant to stand seised, and the feoffment 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, supported it; for the feoffment of Sir Edward was a forfeiture (t) Beard v. Westcott; see Gilb. on Uses, 270, n. ; 5 Barn. & Aid. 801; Bengough v. Edridge, 1 Sim. 173. 1 Clark & Finn. 372, nom. f adell v, Palmer. OF SCINTILLA JURIS. 29 forfeiture 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 support the contingent remainder to the sons without question ; and 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 contingent use would have been destroyed notwith- standing the right of entry in the daughter (u). Lord Chief Justice Roll states, that 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, whether 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 necessity to revive contingent uses, because otherwise the contin- gent use will be destroyed." 4thly, That («) 2 Ro. Ab. 796, pi. 11 ; 2 Sid. 64, 98, 129, 157, nom. Heyns v. Villers. 30 OF SCINTILLA JURIS. 4thly, That when a feoffment is made to certain uses with remainder over in contingency, and no estate left in the feoffees, and then the feoffees enter on the land, and disseise the tenant, in possession, and make a feoff- ment 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 before the feoffment, re-enters, for his entry shall reduce all the contingent remainders, and make them capable of execution by the statute of uses ; 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, lastly, That when a feoffment is made to cer- tain uses, with divers remainders over in contingency, and no estate left in the feoffees ; yet if the estates in esse are divested before the events happen, and then the contingencies 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 that case the contingent use can never be revived so as to be executed by the statute of uses, be- cause the feoffees who had scintilla 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 contingent uses were not ; and where it is said by some that the estate that feeds them is in nubibus, and of others in terra, and by some other III OF SCINTILLA JURIS. 31 in custodia legis, until the contingency happen ; yet he held, that they are preserved by a scintilla juris, which term was first invented by my Lord Dyer. 9. Now these resolutions, which are all that are 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 anywise necessary to the decision of the court. The two last resolutions it is impossible to reconcile. It is first holden, that a tenant for life may re-enter and re- vest the scintilla in the feoffees against their own feoff- ment, " 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, secondly, 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, " al- though they have not any power left in them to destroy contingent uses," yet when their entry only will, accord- ing to this doctrine, revest the uses, then they may effectually overthrow the settlement. What is the dis- tinction between their feoffment before their supposed right of entry requires to be exercised, and their feoff- ment at or after that time ? What is this " scintilla juris et tituli?" If it be an actual interest, it cannot be re- vested 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(?^), which was de- cided on a point of pleading, or, at least, it was not decided upon the doctrine under consideration (ar). It is (it) Mo. 368 ; 36 and 37 Eliz. (x) See 2 Ro. Abr. 795, pi. S. 32 OF SCINTILLA JURIS. is observable, that in this case, Moor treated it as a doubtful point, whether at that day a future use was a real interest, or that a seisin was requisite at the instant of its rising as it was before the statute of uses. In Wood v. Reignold (y), and Bould and Winston (z), 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 con- sideration. But, in the first case, no judgment was given ; in the second, the reporters differ as to the judgment. Sir Thomas Palmer's case (a), likewise, was a cove- nant to stand seised to the use of himself for life, re- mainder to Thomas Palmer, his nephew, for life, re- mainder 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 Tanfield, 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. But 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- ance, that it should not be as a reversion still in the covenantor, whereof livery should be sued after his death, (y) Cro. Eliz. 764, S54; 41 4 Jac. and see Barton's case, Mo. and 42 Eliz. 742. («) Cro. Jac. 168, Noy, 122; («)9 Jac.Mo.8l J.SeeFearne,42(J. OF SCINTILLA JURIS. 33 death, because there was no person in being (which is the word of the statute of uses) in whom the land may vest (b) ; and the decision in Hales v. Risley (c) seems to be in favour of contingent uses under covenants to stand seised (I). Indeed, the author of the celebrated treatise of equity (d) refers to this case, as having settled, in opposition to the former authorities, that to the raising 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 transferred 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. 10. We have now gone through all the cases on this subject. The positions which they are generally thought to establish are, — 1 . That a scintilla juris remains in the feoffees, releasees, or conusees to uses, to support and feed the contingent uses as they arise ; — 2. That if a contingent use be divested, an actual entry must be made to revest it, although a right of entry is sufficient to support a contingent remainder at common law ; and 3. That by force of this scintilla the feoffees, &c. ma}'- enter to revest the contingent uses, and by a parity of reason may, by release, feoffment, &c. destroy their scin- tilla, and so prevent the uses from arising. We have seen that this doctrine has never received a judicial decision. There is not a single case in the books (5) Barne's case, Hob. 7 4-. (d) Book ii. ch. 6, s. 2. (c) Poll. 369. (I) 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 arguments. D 34 OF SCINTILLA JURIS. books ill which it was necessary to decide the point. The authorities have, indeed, been generally treated as derisive of the 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; Pcriam, Chief Baron; and Moun- son, Harper, Southcote, Walmesley, Gawdy, and Clench, although they differed in some respects, were all of opi- nion that no right or interest was left in the feoffees. Lord Ilardwicke, in one of the ablest judgments ever delivered, said, that in order to determine Chudleigh's case the Judges entered into very refined and specula- tive reasonings, some of which (he said he spoke it with reverence) were not very easy to comprehend (c) : and Lord Chief Justice Willes, in delivering judgment in Parkhurst v. Smith (f), treated this doctrine of scintilla as a great stretch in the court, and a commendable astu- tia 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 feoffees 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 respect, it evidently is, the preponderance of authority is greatly against this fiction. 11. Considering the point then as still open, we may shortly v whom it is executed. If these are not duly observed, the lease is void as against him ; and if they are duly observed, it matters not to him whether the estate ori- ginally given to his predecessor continued vested in that predecessor at the time of granting the lease, or had been previously transferred to another person. Many occasions arise in which it becomes important to the convenience of a tenant for life that he should transfer his estate to another. An execution of the leasing power after such a transfer cannot, for the reasons already given, be prejudicial to the remainder-man ; and the reasons upon which such powers have been in- troduced, show that it may be more beneficial to him that the leasing power should be retained and continue to exist, than that it should be extinguished and anni- hilated. It ought not, therefore, to be held that such a power is extinguished by a transfer of the estate, unless the language of the deed whereby the power is created clearly shows that the donor of the power intended in- separably to annex it to the life estate given, and to a continuance of that estate in the identical person to whom it is given. Now the power in this case was given to several, who are to take in succession ; and the words " and not before" are most important. For look- ing at the whole clause, it did not appear that the donor intended to annex the power to the estate, and all the words of the clause were best satisfied by construing it to mean only that every person to whom an estate for life was given might make leases after, though not before the estate should have once vested in him, and during its continuance, whether in him, or another de- riving under him. A lessee, moreover, is in law and reason considered as a purchaser, even if he takes at the POWERS APPENDANT. 03 the best rent that the land be worth at the time, because he forms his engagements and regulates his affairs upon the faith of his lease, and often expends his money in the improvement of the land, in confidence that he shall reap the benefit of his expenditure by the enjoyment of his term. And the estate of a purchaser is not be taken from him unless it be for some good reason, founded in justice, or in the plain intention and expressions of the original settlor of the estate. No such reason was to be found in the present case. 4. It has in like manner been determined that a con- Tyrrell v. veyance by a tenant for life, of his whole life estate, with a power of sale and exchange, or, which is the same thing, whose consent is made requisite to the ex- ercise of such a power, will not affect his power where the conveyance is only by way of mortgage or security. This was decided in a recent case (d), where (subject to a rent-charge and a term of years to secure it) the husband and wife were tenants for life successively, with regular limitations to trustees to preserve contingent re- mainders, with remainder to the children, as the husband and wife should appoint, with limitations, in default of appointment, to the children as tenants in common in tail, with remainder to such uses as the wife should appoint, and in default of appointment, to the right heirs of the survivor of the husband and wife; and there was a power of sale and exchange to the trustees during the lives of the husband and wife, and the survivor, by their, his or her direction. Upon the sale of a life annuity, there being one child of the marriage, the husband and wife, by lease and release, and fine, conveyed the estate to a trustee in fee, (subject to the child's estate), for se- curing the annuity. The conveyance recited that the wife (d) Tyrrell v. Marsh, 3 Bing. 31 ; 10 Moo. 305. 64 EXTINGUISHMENT OF wife was entitled to the reversion expectant on the death of her daughter without issue, and had agreed to grant the reversion to the trustee in fee to secure the annuity ; but the life estates also were conveyed, for the fee, subject to the estate tail, was vested in the trustee (I). The an- nuitant had obtained an assignment of a charge, which was created by the husband and wife, under a particular power of charging in the settlement, and that of course overrode the life estates. There was no saving clause of the powers in the conveyance. Afterwards the power of sale was exercised by the trustees, w ith the consent of the husband and wife, and with the concurrence of the annuitant and her trustee ; and it was held that the power was not destroyed by the fine, as the only object of the deed and fine was to secure the annuity. The fee, it was said, was vested in the trustee, not as an inde- pendent fee, but merely to secure an annuity. It was only to exist during the life of the annuitant, and upon her death it was to return to the husband and wife. The case was not considered distinguishable from Lord Jersey's, to which we shall presently advert ; for although there the object of the parties was expressly stated in the deed, yet it was equally clear here, upon the whole; of the instruments taken together, that the intention of the parties was to limit the operation of the fine, and prevent the destruction of the power. In Davies v. Bush (e), the estate was conveyed, prior to marriage, by the lady's father to the husband and wife successively for life, with regular remainders to trustees to preserve, with remainder to the children in strict settlement, (e) M c Clell.& Yo. 53. (I) The reports are not very distinct, and in the judgment of the C. J., there are some observations upon the operation of the statute of uses which appear to be erroneous. POWERS APPENDANT. 65 settlement, remainder to the survivor of the husband and wife in fee, and there was the common power of sale and exchange in the trustees, at the request of the hus- band and wife, or the survivor. After the marriage, there being no issue, the husband and wife conveyed to a mortgagee in fee, subject to the uses in favour of the issue, and covenanted to levy a fine to enure to the mortgagee, his heirs and assigns, during the lives of the husband and wife, and the life of the survivor, with remainder to the uses limited by the settlement, so as to confirm them, and the fine was levied, and there was a proviso for redemption. Subsequently, the mortgagee having been paid off, re-conveyed to the uses of the set- tlement ; it was held that the fine was controlled by the declaration of uses, and did not destroy the contingent remainder in fee limited to the survivor of the husband and wife, which was the only point in the case. But the Chief Baron observed, upon Lord Jersey's case, and the other authorities, that they proved that where the uses of a fine are led by a previous deed expressly re- ferring to it, the deed, in its turn, limits and controls the legal effect of the fine, preventing it from destroying those powers, authorities, and conditions, which it would otherwise have destroyed. Does the fine, the Court asked, destroy the power of sale and exchange ? That is precisely Lord Jersey's case. If it were said that it would, that would be a decision directly opposite to that in Lord Jersey's case. 5. It appears then, that the cases have decided that a tenant for life with a power of leasing, may exercise it, 1. Although he has conveyed away his whole life estate, by way of mortgage or security, provided he has re- served to himself that right against the incumbrancer (f) : 2. And {/) Long v. Rankin. F 6G EXTING1 fSHMENT OF 2. And even although in such ;i conveyance he has not reserved to himself a right to exercise his power as against the incumbrancer (g). But that he cannot of course, by the exercise of his power, defeat any incumbrance which he has created. The cases appear also to have decided that a tenant for life with a power of sale and exchange may exer- cise it, 1. Although he lias created an interest out of his life estate, (but reserved his reversion so as to remain tenant for life under the settlement,) and although he has not reserved to himself any right to exercise the power against his incumbrancer (h) : 2. And even where he has departed with his whole life estate by way of mortgage or security, and although he has not reserved to himself the right to exercise the power against the incumbrancer (i). Upon each class of decisions I propose to offer a few observations, with a view to ascertain upon what grounds they depend ; and, first, as to the power of leasing. It is settled that an alienation of the life estate pre- vents an exercise of the power : it necessarily must have that operation. The power cannot be transferred to the alienee of the estate, nor can it be reserved distinct from the estate. As, therefore, a conveyance of the whole estate is at law an absolute transfer, although only by way of mortgage or security, it would seem that such a transfer would operate to prevent the exercise of the power. With a view to guard against this operation, it has been the practice upon a mortgage to make the security simply for years, depending upon the life, and for the mortgagor to covenant not to exercise his power of (g) Ren v. Rulkeley. (i) Tyrrell v. Marsh. Davies (A) See Goodright v. Cator. v. Bush. POWERS APPENDANT. 67 of leasing without the consent of the mortgagee. By such an arrangement, the donee of the power still re- mains tenant for life, and so fills the character in respect of which the power was reposed in him. He is entitled to place a restraint on his exercise of the power ; and as the incumbrancer would consent to the exercise of it, a lease might, without objection, still override the original life estate, including the term carved out of it, just as if no mortgage had been created. But according to Ren v. Bulkeley, no such precaution is necessary, although it would hardly be safe to dis- pense with it. That case depended upon Lord Mans- field's opinion, that a mortgage was, even at law, a mere security for the debt, and not an actual conveyance. Thus, shortly afterwards, he held that a mortgagee to whom a term had been assigned could not be sued as assignee of all the interest of the mortgagor before he took possession (A). But in Stone v. Evan (I), before Lord Kenyon, he expressly declared, that he could not subscribe to the doctrine laid down in Eaton v. Jaques, and would overrule it without hesitation (in), and it has since been overruled (n). The cases of Ren v. Bulkeley and Eaton and Jaques depend so strictly on the same principle, that it is impossible to overrule one without shaking the other. In Ren v. Bulkeley there was no reservation of the power, so that the power clearly could not have been exercised against the mortgagee ; and if such a conveyance does not operate to destroy the power or prevent it from being exercised, where will a court of (k) Eaton v. Jaques, Dougl. (m) And see Mayor of Carlisle 445. v. Blamire, 8 East, 487. (I) Woodfall's L. & T. 113; (n) Copeland v. Stephens, 1 Abbot on Merch. 14, n. b. Barn. & Aid. 593. F 2 08 BXTING1 [SHMENT OF of law stop? May the mortgagee cuter, and yet the mortgagor exercise the power? How is the lease to operate in possession ; that is, how is the lessee to ac- quire the possession? Against the mortgagee he can- not. Would covenants entered into by the lessor or lessee run with the land where the lessor had, before lie granted the lease, ceased to have any portion of the legal interest which was conferred upon him with the power ? Will a foreclosure discharge the power ? It could hardly be said to remain, and yet the mortgagee woidd not have the legal estate more completely after the foreclosure than he had before. Long and Rankin, without founding itself on Ren v. Bulkeley, and even professing not to confirm it, decided that the transfer of the whole life estate, if by way of security, did not destroy the power where the right to exercise it against the incumbrancer was reserved by the deed. The opinion of the Judges appears to have been founded upon the following grounds: 1. That the life estate was not destroyed but transferred. 2. That as between the tenant for life and the annuitants (the per- sons to whom the life estate was transferred), he was still authorized to exercise the power. 3. That the lease operated by estoppel during the life of the tenant for life, and the annuitants would in equity have been restrained from disturbing the lease. 4. That leases for years are not derived out of the estate of the lessor. 5. That it is immaterial to the remainder-man whether or not it is so annexed : his security depends upon the con- ditions and qualifications under which the power is to be executed, 6. That the language of this power showed that the donor did not intend to annex the power to the estate. 7. That the lessee is a purchaser, and his estate is not to be taken from him unless it be for some good ^ reason POWERS APPENDANT. 69 reason founded in justice, or in the plain intention and expressions of the original settlor of the estate. It will readily be observed that the 7th ground is common to every case, and affords no specialty ; and that the 1st, 2d and 3d grounds do not affect the real question, which is, does the lease bind the remainder-man ? The 6th ground, as far as it puts the case upon the intention of the donor, prevents it from being an authority of general application. But independently of general principle, it would be difficult to maintain the decision upon this ground, for the donor's intention was that the power should not be exercised before the tenants for life ac- quired the estate, from which an intention might be collected that they were not to exercise the power after they had lost the estate. The words are, when and as they shall be in the actual possession, and the leases are to commence in possession. Does not this mean a con- tinuing possession ? Suppose a transfer of the life estate whilst it was a remainder, not in possession, so that the tenant for life never could come into possession, could he, nevertheless, exercise the power ? If not, how does it differ the case that the tenant for life acquires the possession, but afterwards parts with it ? As far, there- fore, as depends upon the expressions of the donor, the lease does not appear to have been authorized by the power. The 4th and 5th grounds are the only ones which bear upon the main point, as far as it depends upon principle. The 4th is far from conclusive. Whe- ther the lease operates upon the life estate, or is derived out of it during its continuance, is immaterial. The dis- tinction is merely critical in one sense. The estate is given to the donee for life, and he is the only person who can charge that estate with the lease. The power might have been given to a third person taking no estate, but it was not. The donor, therefore, contemplated f :3 that 70 EXTINQ1 [SHMENT OF that the donee could not charge the remainder-man Avithout charging his own life estate. This brings us to the 5th ground, that it is immaterial to the remainder- man whether or not the power is annexed to the estate. But is that so ? If the power is given to a third person, the donor has selected him as one in whom he places confidence, and who has no interest to favour either the tenant for life or the remainder-man at the expense of the other. The security of the remainder-man, it is said, depends upon the conditions and qualifications under which the power is to be executed. No doubt it does ; but much also depends upon the choice of the tenant and the bona fides of the transaction. A lease may be perfectly legal under the power, and yet not such a contract as would have been entered into by a provident tenant for life, binding his own estate as well as that of the remainder-man. It may, therefore, be of deep im- portance to a remainder-man that the tenant for life, after he has involved himself with annuity transactions and transferred his life estate to secure them, should not be at liberty to exercise the power of leasing under the direction of the annuitants when it has become a matter of little interest to himself upon what terms a lease is granted. If the donor were asked, Do you mean the tenant for life to exercise his power after he has parted with his life estate? he would no doubt answer, No. It is much easier for a tenant for life to grant an invalid lease than it is for the remainder-man to set it aside. The decision of the Lords would, of course, apply as well to a sale out and out as to a conveyance by way of mort- gage or to secure annuities ; and yet this consequence was not adverted to, although, in delivering the opinion of the Judges, the Chief Justice observed, that it was not necessary to say in that case that a leasing power may not, by the terms in which it is given, be so inse- = parably POWERS APPENDANT. 71 parably annexed to the estate of the tenant for life as to become void and inoperative if he parts with his estate and transfers it to another. This, he added, probably may be so by the terms in which the power is given, because he who gives it may give it with what qualifica- tions he pleases. It is to be regretted that this point was treated as in any manner doubtful, for it admits of no doubt. The donor may, if he please, give the power to the tenant for life, exercisable only whilst the estate for life is actually vested in him ; and the real question in Long v. Rankin was, whether that was not implied from the nature of the power in that case : a sale of the life estate out and out would have destroyed the power. It will be seen that the House of Lords did not confirm in terms the case of Ren v. Bulkeley. On the contrary, after moving the affirmance of the judgment in the case before the House, Lord Eldon observed, that he was a little anxious to say that he desired it might not be understood that he had given any opinion whatever with respect to the decision of Ren v. Bulkeley. This would seem to make the decision in Long v. Rankin depend either upon the words of the power, which were the usual ones, or on the right reserved to exe- cute the power, so that no regard was paid to the inten- tion of the donor of the power. Perhaps Lord Eldon's opinion may fairly be considered to have been that the power was destroyed in Ren v. Bulkeley; and upon principle it appears difficult to support the decision in Long v. Rankin. 6. As to the cases upon powers of sale and exchange, they, like powers of leasing, operate to over-reach the whole life estate ; and no mere re-settlement reserving the powers, and not inconsistent with them, will, as we shall presently see, defeat them. But an interest created out of the life estate cannot be defeated by an execution of f 4 the 72 EXTINGUISHMENT OF the power, where it is to be exercised by the tenant for life, or with his consent, for he cannot derogate from his own grant. This would seem to present a consider- able difficulty: for as the power, from its nature, is to operate upon the fee in possession, and not subject to charges created by the tenant for life out of his interest, for his own benefit, and he is not allowed to displace such interest, the power, in such a case, cannot operate as it was intended it should by the donor. But practi- cally this produces no inconvenience, for the power is exercised over the whole fee, although it will not so ope- rate, and the sale and price must be for the entire fee. The incumbrance of the tenant for life can only be re- leased by the incumbrancer ; and if he concur, the power is satisfied, and the incumbrancer is protected. If he do not join, there must be some unfair dealing, or the pur- chaser has not notice of the charge, in which case he pays for the fee clear of incumbrances, and yet he is fixed with the charge during the life of the tenant for life. But he has his remedy over against the tenant for life ; and it would only aggravate his misfortune to hold that the power was badly executed. In Goodright v. Cator, in which the power was treated on all hands as remaining capable of being immediately exercised, the security was by a demise and re-demise, and the tenant for life remained such. We shall presently see that where the power is alto- gether one in gross, it may be exercised after the tenant for life has departed with his estate, as in the instances of a power to a tenant for life to appoint the estate, or charge it in favour of his children after his death. But a power of sale and exchange is intended to operate over the life estate itself, and therefore the transfer of such an estate to which such a power is annexed opens to a different view. In POWERS APPENDANT. 73 In Tyrrell v. Marsh, where the life estates had been transferred, the Court relied altogether on Lord Jersey's case, which we shall hereafter consider, and addressed their attention wholly to the operation of the fine. But it should have been considered whether the transfer of the life estate, although only by way of security, had not destroyed the power. In that case it was not attempted to execute the power against the incumbrancer, nor was any right to do so reserved ; but the Court implied an intention to save the power. They do not appear to have considered whether, by an exercise of the power without the consent of the incumbrancer, his security would have been defeated. In Davies v. Bush, the observations were extra-judi- cial ; and the difficulty which we have been considering does not appear to have presented itself to the Court. Here, as in the former cases, it appears to be difficult for a Court of Law to act upon the distinction between a conveyance of the life estate, where it is upon a sale, and where only upon a mortgage. An absolute convey- ance upon a sale would, it is apprehended, prevent the power from being exercised, from the very nature of the power, independently of any technical question, for powers of sale and exchange are manifestly given to the tenant for life in consequence of the character which he fills. They are rather directed to the management of the settled estate, to its melioration, than to the dis- position of the interest in it, which is only the machi- nery. If, therefore, he sell his life estate, it would be contrary to the intent of the donor that he should alter the nature of the property by a sale, or exchange the estate for another. He no longer fills the character in respect of which the powers were confided to him. In order to avoid the difficulty, it has sometimes been the practice, upon a sale of the life estate, to de- mise EX riNGl [SHBIENT OF mise the estate to a purchaser for a long term, depend- ent on the lessor's life, with ;i covenant by him to exer- cise his powers as the purchaser shall direct; hut it may he doubted whether that plan is effectual, for during the term the tenant for life has lost that domi- nion over the estate which it may he thought he ought to retain, in order to qualify him to execute his power. There is a marked distinction hetween such a case and the case hefore put, of a mortgage for years, although in the latter case the charge may be equal to the value of the estate ; and, with reference to this question, there can be no inquiry into the amount ; but still it is but a security, and is redeemable. However, even in the case of a sale for a term of years, the power would be suspended, and not destroyed ; and upon the surrender of the term, the power might again be exercised. 7. Although the whole estate of the donee of the power is conveyed by him, yet if it is by way of re-settle- ment, and the prior uses are re-limited, and the prior powers of sale and exchange saved and confirmed, those powers may still be exercised, although present powers of sale and exchange are reserved by the new settle- ment to different persons (0). The old use is restored, the intention is expressed, and no incumbrance is cre- ated to prevent the exercise of the old powers ; of course, no change or transfer of the estates of the remainder- men can affect the powers. These, however, are cases of great nicety, and lead to considerable difficulty in practice. In a recent case, A was tenant for life under a settlement, with remain- ders over, in which there was a power of sale and ex- change to be exercised with her consent, and the usual power (0) Roper v. Halifax, App. No 2. ; and see Lord Jersey v. Deane, infra. POWERS APPENDANT. power of appointing new trustees with her consent. On her second marriage she conveyed all her estates, by- lease and release, to trustees and their heirs, to the use of trustees for 500 years, upon certain trusts, remainder to such uses as she should by deed or will appoint, and in default of appointment, to the use of trustees in fee, for her separate use. New trustees were appointed under the power, and the usual deeds executed. It was ob- jected, by a purchaser, that A' 8 power to consent to a sale was suspended or extinguished by her conveyance on her second marriage. In answer to this objection it was urged, that if the case were considered as it would have stood before the statute of uses, the fee would be in the trustees, in trust for A, for life, with remainders over, with a power to sell with her consent. Now a mere conveyance not operating by wrong, of her life- estate to other trustees, in trust for herself, could not possibly disturb her power ; it would in no manner affect the interest to be defeated by the exercise of the power. Why should not the trustee convey according to his trust, by her direction, as well after as before the exe- cution of such a conveyance? The only instance in which a power like the present could be affected before the statute, by a simple conveyance of the interest, was where the rights of third persons were let in upon the estate. If the tenant for life sold the estate to a stranger, and an intention should be collected that he was to re- tain the estate discharged from the power, that would affect the conscience of the trustee, and be a bar to his selling, although with the consent required by the set- tlement. The case, it was said, in no respect differed since the statute. It would not be contended that the mere transfer of the life-estate defeated the power in the trustees, unless by preventing A from consenting to an exercise 70 EXTINGUISHMENT OF exercise of the power. There was not any rule of law which prevented A from consenting. Her consent would not affect third persons, but still, merely so far as related to her interest, act upon her life-estate under the original settlement. It was considered, therefore, that by removing the term of 500 years out of the way the power might be exercised with effect. But in order to obviate all difficulty, it was recommended that A should appoint the estate to herself for life. She would then be in of her old use, and might well execute her power. It would be the mere case of a conveyance of the life-estate, by an innocent conveyance, to a releasee, to the use of herself for life. The use she would take under the conveyance would in no respect be different from the use which was before vested in her. If no use had been declared, the old use would have resulted to her, and the express limitation of the use would not render it a new one. This was the argument for the seller. The purchaser, however, chose to be himself at the expense of an act of parliament, by which — after re- citing that doubts had arisen, whether, upon the execu- cution of the settlement on the second marriage, A's powers of consenting to a sale, and to the appointment of new trustees, did not become suspended or extin- guished ; and in case such powers were only suspended, whether, upon the execution of the deeds appointing new trustees, the same did not become absolutely ex- tinguished — the powers were confirmed. The objections were not considered of much weight, although the act was allowed to pass. 8. Before the late act for the abolition of lines and recoveries, where a tenant for life agreed to join in making a tenant to the precipe for suffering a recovery, the POWERS APPENDANT. 77 the universal practice was to convey only during the joint lives of himself and the tenant to the precipe. And it was also customary, in these cases, to insert an express declaration that the demise or conveyance should not affect, but, on the contrary, be subservient to, the powers. These precautions applied to powers in gross as well as to powers appendant, because the object was to leave a reversion in the tenant for life (p) ; the estate for life was relimited to him in such cases, and the power might afterwards be executed in the same manner as if the donee had not parted with any portion of his estate. Sometimes upon a recovery the estate was conveyed for the joint lives of the tenant to the precipe and the tenant for life ; and a clause was inserted for making void the conveyance, in case a very large sum was not paid within a given time to the tenant for life ; the money of course was not paid, and then the tenant for life was in of his old estate to which the powers were annexed ; nor did this mode affect the validity of the recovery, it being sufficient that the tenant to the precipe had the freehold at the time of suffering the recovery. In the case of Roper v. Halifax (q) there was a settle- ment, with a power of sale in the trustees, with the consent of the tenant for life. A recovery was suffered, in which the tenant in tail only was vouched, which was to enure, to confirm the estates previous to the estate- tail, and the powers annexed to them, and subject thereto, to the joint appointment of the father, tenant for life, and son, tenant in tail under the settlement. The deed making the tenant to the precipe contained the (;;) Vide post, ment written by the Author, as (q) C. B. T. & M. Terms IS 16. Counsel, in favour of the destruc- MS. 8 Taunt. 845. Appendix, tion of the power, is added to the No. 3. The sketch of an argu- case in the Appendix. 7S EXTINGUISHMENT OF the 100,000 I. clause, as it is called ; and the estate was vested in the tenant to the precipe for the joint lives of him and the tenant for life only. The father and son made a joint appointment (subject to the aforesaid estates and powers), to new uses; and the trustees, and the father and son, conveyed (subject as aforesaid) to new uses, recapitulating the old ones previously to the estate- tail, and new powers of sale, &c. were given. It was held, that the power of sale under the original settle- ment was not destroyed by the recovery or by the new settlement. 9. Where an estate is limited to such uses as A shall appoint, and in default of and until appointment to him in fee, the power is clearly appendant ; and by a conveyance of his interest would be destroyed. This point is very important, as the limitation is similar in effect to the usual limitation to bar dower, of which we shall hereafter have occasion to speak. In Penn v. Peacock (r), an 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 as she should by will appoint, and for want of appoint- ment to her own right heirs. She joined with her hus- band in conveying the estate by demise, with a fine, to a mortgagee. And it was insisted for her, that she had but a mere naked power without 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 by a fine, since that a lease and release, 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 0) For. 41. POWERS APPENDANT. 79 times taken, that where the power only authorizes a disposition by will, the title cannot be accepted; for it is clear, that where 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 exercise of the power. But where he cannot convey the fee independently of the power, the objec- tion holds ; as if he was tenant for life of the legal estate, remainder to such uses as he should appoint by will, remainder to a trustee in fee, in trust for his right heirs, there the estate for life and remainder cannot coalesce, but his right heir would take as a purchaser, and con- sequently, the destruction of the power would not help the purchaser (s). 10. The same rule is applied to personal estate : there- fore, where a man was, under a will, tenant for life of certain funded property, and then for such persons, &c. as he should appoint by will ; and in default of appoint- ment, the trust was for his executors or administrators ; it was held, that he might assign the fund absolutely (t) ; and where, in default of appointment, the fund is settled on another, the donee may, with the concurrence of that person, make a present title to the fund ; for, by ana- logy to powers on real estate, such a power may be parted with, that is, released or extinguished. 11. It is to be observed, that as to the destruction of Bank- the power, the effect is the same, although the estate is conveyed by operation of law. Thus it has been deter- mined, that where a man tenant for life, with remainder over, and the ultimate remainder to himself in fee, with a power of revocation, became bankrupt, and the inter- mediate (s) See Parkes v. White, 1 1 (t) Kirkpatrick v. Capel, V, C. Ves. jun. 209. T.T.I 819. MS. 80 EXTINGUISHMENT OF mediate estates had become incapable of taking effect, the life-estate and remainder in fee, or rather the fee in possession, vested in the assignees, and his power of revocation was gone (u). Badham v. 1 2. In Badham v. Mee (x), where a father was tenant Wee. . . for life, with remainder to such of his sons as he should appoint, suhject to charges for the other children ; and in default of appointment there were limitations to the sons successively in tail male, with remainder to the father in fee, and he became a bankrupt ; the Court of C. P. held, that after the bankruptcy the father's power ceased, and an appointment by him under the power, to a son in fee, was void. This opinion Mas ex- pressed upon a case directed by the Court of Chancery, and consequently we are left to conjecture the grounds of the judgment. It does not appear capable of being- supported consistently with established principles. The father could not affect the ultimate remainder in fee vested in the assignees, but as between the issue of the marriage, the power subsisted and was capable of being- exercised. As long as there was issue of the marriage capable of taking under the limitations in the settle- ment, the appointment would be operative ; but if the remainder in fee would have fallen into possession if there had been no appointment, then the estate created by the appointment would cease. It is no objection that a re- mainder cannot be limited on a base fee, and that a fee could not have been limited upon a fee by the original settlement. For the ultimate remainder in fee, which vested in the assignees, was not displaced out of them, and (u) Anon. Lofft. 71 ; Doe v. Britain, 12 Barn. & Aid. 93. See Thorpe v. Goodall, 17 V T es. jun. 388, 400. (x) 7 Bing. 695 ; l Moo. & Sc. 14. POWERS APPENDANT. &1 and the appointment was in its operation cut down to a base fee, by the power of the Bankrupt Act. The effect was no more than the common operation of a fine by a tenant in tail, with remainder in fee to another. And the bankrupt law ought not to be held to destroy the powers in a family settlement, where their existence and the exercise of them do not affect the rights of the creditors. Since the above observations were written, the case came before the Master of the Rolls, when the confirmation of the certificate was opposed (?/), and it was insisted, 1. That the bankruptcy destroyed the power ; 2. That if not destroyed, the appointment was bad. The learned Judge said it was conjectured in this case, from an observation made by one of the Judges in the course of the argument, that the Court of Common Pleas decided against the validity of the appointment, upon the ground that by the execution of a power no estate can be created which would not have been valid, if limited in the deed creating the power ; if, therefore, it were admitted that the power of appointment con- tinued in the bankrupt, notwithstanding his bankruptcy, and that the appointment in favour of the eldest son in fee might be construed as an appointment creating a base fee only, and not prejudicing the remainder, which passed to the assignees under the commission, the ap- pointment would, nevertheless, be void, because a limi- tation to that effect would have been void in the original deed creating the power, inasmuch as the rule of law does not permit one fee to be limited after another, al- though the first fee be only a base or determinable fee. This rule applies to the present case, in which the donee has a particular and a general power, and will support the opinion which has been formed by the Judges of the Court ( y) 1 Myl. & Kee. 32. G H2 EXTINGUISHMENT OF POWERS Court of Common Pleas. As he confirmed the opinion of the Court of Common Pleas on this point, it was unnecessary, he said, that he should express any opinion on the other views of the case which had been taken in the argument at the bar ; he therefore made his decree to the effect of the certificate. There appears to be no ground for the doubt sug- gested as to the extinction of the power ; and the other point does not seem to have received from the Court the consideration which it deserves. If such a power cannot be exercised after the bankruptcy, the power of selection is gone, and, in some cases, the immediate li- mitation over, in default of appointment, may be to strangers. In Badham v. Mee, the knot was rather cut than untied, for the appointment was to the eldest son in fee, and the limitation, in default of appointment, was to him in tail, so that much mischief was not done by the decision in the particular case, however injurious it may be, as establishing a false principle. SECTION IV. OF THE EXTINGUISHMENT OF POWERS COLLATERAL OR IN GROSS. \.\Not by a conveyance of the 3. But may be by a new settle- 4-. J life estate. ment. 2. Nor by an innocent convey 5 _ E j ed f a f eo ff ment . ance in fee 1. An assignment of totum statum suum, or other al- teration of the estate for life, does not affect such a power ; so if the donee be tenant for years, and survive the COLLATERAL OR IN GROSS. 83 the years, still he may exercise his power (a), because the power does not fall within the compass of his estate, but takes effect out of an interest not vested in him. 2. And although the tenant for life assume to pass a fee, yet if he convey by an innocent conveyance, as a bargain and sale (ft), covenant to stand seised, or lease and release (c), the power will not be destroyed, 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 (d). And by a parity of reason, a re-conveyance or re-assignment to the donee of the power will not affect it. 3. But if a tenant for life with a power in gross join in a settlement to new uses, although he is still made tenant for life, his power is destroyed where the con- trary construction would enable him to defeat his own grant (e). In such cases, therefore, a new power should be reserved. 4. The cases have generally turned on particular powers, as a power of jointuring, or a power of charging with younger childrens portions ; but they seem to establish this general principle, that every power in gross may well be exercised, although the donee may have previously parted, by an innocent conveyance, with the estate to which it was annexed, in privity. Where a person is tenant for life, with a power to appoint the (a) Saville v. Blacket, 1 P. C. 237. See p. 24 1 , where it ap- Wms. 777. pears that the appointee recovered (b) Edwards v. Slater, Hard, in ejectment. 410; Jenkins u.Kemis, 1 Ch. Ca. (d) Saville v. Blacket, 1 P. 103. Wins. 777. (c) Phitton's case, cited Hard. (e) Ibid. 412 ; Scrope v. Offley, 4 Bro. P. G 2 EXTINGUISHMENT OF POWERS the reversion, or tenant lor life, with remainders over, with a power of revocation, in the first case, the power is wholly a power in gross ; in the second, it is in gross as to the remainders, 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 tenant for life, with remainder to such uses as he and his wife, notwithstanding her infancy, should appoint, and they executed an appointment dur- ing 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 his estate for life, which (he thought) de- stroyed the power of appointment. To avoid any doubt on this point, where A is tenant for life, remainder 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 by the same deed, although, ex abundanti cauteld, some have exercised the power by one deed, and conveyed the estate by another. It will here, how- ever, be proper to inquire, whether the above opinion can be supported. A difference of opinion has certainly been expressed. In Roll's report of Snape and Tur- ton (f), 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 not defeat the lease for life (I). In (/) 2 Ab. 263, pi. 2. (I) Mr. Sanders, 1 Uses, 173, supposes the Court to have intended a lease made for the life of the lessee, and not of the lessor, and by feoffment, which might be considered as having displaced the reversion out of which the use to be created by the power was to arise. COLLATERAL OR IN GROSS. «S5 In Clarke v. Philips (g}, 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 feoff- ment (I). And in Herring v. Brown, Justice Lutwich said, that if a power of revocation is annexed to an estate for life, and that estate determines before the power is executed, by that means the power is extin- guished (h). This is all the authority that I have met with in favour of the extinction of the power, and it must be admitted not to be of much weight. For Keel- ing and Twisden were opposed to each other, and the observation of Justice Lutwich was extra-judicial, and his opinion upon the main point in the case 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 bargainor had a power of revocation, he might well execute it after the executing this conveyance (i) : 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 by it. So, in Saville v. Blacket (Ji) there was a tenant for 99 years, if he should so long live, with a power to charge the lands ; and Lord Mac- clesfield held, that he would have had this power though (g) 1 Ventr. 42. where the opinion of the Court (Ji) Carth. 24. may have depended on other (?) Hard. 413. See 10 East, grounds. 443 ; Malim v. Hill, 1 Cox, 186; (k) 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. Pywell. G 3 86 EXTINGUISHMENT OF POWERS. though lie 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 ovet the term : and although this case turned on a particular power, yet it is impossible, without discarding all prin- ciple, to distinguish it from the case of a general power I). Hale's argument, that a lease does not de- stroy the power of revocation, because no estate is dis- placed by it, applies as forcibly to a lease for life as a lease for years, and refers the doctrine to the true ground. The result clearly is, that the power is not in such case destroyed. The contrary doctrine appears to owe its origin to powers having been on their first introduc- tion after the statute of uses assimilated to conditions at common law, which they do not resemble. By the com- mon 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 the estate was destroyed (#). But this could never apply to a power which is a mere declaration of trust upon which the sta- tute of uses operates, and this seems to have struck the Judges in Bullock v. Thorne (7), where Walmesley, Jus- tice, held, that a lease for years does not suspend the power of revocation if it be raised by way of use, other- wise^ if it is of a condition annexed to cm estate in posses- sion. And the Court held, that, if one has a power of revocation entire, and he extinguishes, or suspends, the power in part, he may still revoke for the residue, if it be by way of use, but not so of a condition annexed to the land. (k) Lord Stafford's case, S Rep. 73. (I) Mo. 615. (I) See the observations on the suspension of a power, supra. POWERS APPENDANT AND IN GROSS. 87 SECTION V. OF CASES COMMON TO BOTH POWERS APPENDANT AND IN GROSS. 1 . Power not simply collateral may be released. 2. Or defeasanced. 3. Not extinguished by a partial execution, with a neve power. 4. Extinguished by a tortious conveyance. 5. Not by the acceptance of a feoffment. 6. Cases where a feoffment, fyc. will not extinguish a power. 7. Cases where a feoffment, fyc. will execute a power. 8. Or operate as a confirmation. 9. Partial bar of a power ap- pendant and in gross. 10. Poiver to appoint to children may be barred or released. 1 1 . West v. Barney. 12. Effect of a release for the donee's own benefit. 1 3. The operation of deeds under the Act abolishing fines atid recoveries on povoers. 14. Extinguishment and release of powers by married women under the Act. A present power, not simply collateral, may be ex- tinguished by release to any one who has an estate of freehold in the land, in possession, reversion, or remain- der ; and thereby the estates, which were before defea- sible or chargeable by the proviso, are by such release made absolute (a) : and where in a deed executing a power there are words which show that the party has fully executed his power, or which amount to a release of it, he cannot execute it further (b) ; but the intention must appear clearly, therefore a declaration in a deed partially executing a power of jointuring, that it is in bar of dower and thirds, and that the remainder-man shall (a) Albany's case, 1 Rcp.l 10 b; Co. Lit. 265 b. (b) See 2 Atk. 561 G 4 *>£ CASES OF EXTINGUISHMENT COMMON TO POWERS shall have the surplus, will not operate as a release of the power, for they are only words put in by conveyan- cers as of course (c). 2. And where the power is future, and to arise by a contingent event, it may be defeasanced, and thereby utterly annulled (d). So it may be defeated in part. Thus where a man had a general executory power of revo- cation, 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, it was determined that the power being executory might well be defeated by a subsequent deed (e). And where the restriction is by way of covenant, and does not prevent the legal execution of the power, equity will in a proper case set aside any estate created under the power contrary to the covenant (f), and a covenant in a conveyance against incumbrances done or to be done will prevent the execution of the power in favour of a person having notice of the covenant (g). But it seems to have been doubted whether a power can be released in part (h) ; although there appear to be no sufficient foundation for the doubt. Where a man vested an interest in another in his life estate, and the grantee covenanted for himself, his heirs, executors and administrators, to confirm all leases made by the tenant for life under the power, but with certain restrictions of course not contrary to the power, the Court (c) Hervey v. Hervey, 1 Atk. (J") Lord Peterborough's case, 561 ; Zouch v. Woolston, 2 Burr. cited 1 P. Wms. 105. 107. Teni- 1 1 30 ; and see Earl of Uxbridge pest v. Sabine, App. v. Bayly, 1 Ves. jun. 499. r g) Scrope r . Qffley, 4 Bro. (rf) Albany's case, ubi sup. p# c 237 . V ide infra. (e) Leigh v. Winter, 1 Jo. 41 1 ; and see Earl of Tankerville v. Coke, Mose. 146. (k) Digges's case, Mo. 6'05. APPENDANT AND IN GROSS. 8 ^ Court held, that it must be shown that the lease was within the limitations ; and they held that it did not extend to a covenant or agreement to make a lease, for the covenant was not to make good all agreements for leases, but leases actually made (g). So, in the same case, the security was transferred, and the tenant for life joined in the transfer, and then made more leases ; and it was held, that by joining in the assignment his power under the covenant was gone. In Lord Uxbridge v. Bayley (A), there were three powers in the settlement; 1, a joint power to the husband and wife to charge the estate with 3,000 I. ; 2, a power to the husband alone to charge the estate with 2,000 I. over and above the 3,000 /. ; and 3, a power to the sur- vivor of the husband and wife to charge such sum as should, with what should h~>ve been before raised under the other powers, amount to 5,000 I. The wife joined her husband in raising 3,000 /. under the joint power for his benefit, and he agreed that during her life, and so long as the 3,000 I. should remain due, he would not charge the estate with any sum by the power reserved to him alone, or any other power, without the consent of his wife. The husband and wife were tenants for life successively under the settlement. He survived her and executed a charge for 2,000 I. in his own favour, and it was held valid. For the agreement was confined to his separate power; but upon her death the third power arose, which he was at liberty to execute. 3. In Roscommon v. Fowke (i), a singular point was raised. The estate had been settled on the husband and wife (g) Vincent v. Ennys, 3 Vin. v. Hunter, 3 Ves. jun. 187. Abr. 432, pi. 10. 360. (h) 1 Ves. jun. 499 ; 4 (i) 6 Bro. P. C. by Toml. 158. Bro. C. C. 13. See Bradbury See p. 167, n. 90 CASES OF EXTINGUISHMENT COMMON TO POWERS wife and the issue of the marriage strictly, with re- mainder to the wife in fee, and she had a general power of revocation and new appointment in case there was no issue. The husband and wife appointed a portion of the estate to trustees in fee upon certain trusts, and the trustees of a term in the settlement to secure portions (which term was not revoked by the operation of the deed,) assigned it to a trustee to attend the inheritance ; and there was a proviso (which appears to have been introduced with reference to this assignment,) that nothing therein contained should extend to alter the uses in the first settlement of the other estates, but that the same should be subject to the raising the portio?is. And a power was given to the husband and wife, and the survivor of them, by deed in writing, to lease the estates (the uses of which were not revoked,) to any persons in fee farm, or for lives or years, as they should think fit, reserving the best improved rent. There w r as no issue, and by her will the wife gave all the estates to her husband in fee. The House of Lords asked the Judges whether the power of revocation contained in the settlement was executed, extinguished or altered by the second deed as to the lands not appointed to trustees in fee. The Judges answered that no extinguishment or alteration of the power was made by that deed. The answer shows they were of opinion that the power was exe- cuted to the extent of the power of leasing, introduced by the second power ; but that such a partial execution of the power did not extinguish or alter it. No trace of the argument appears, nor is the point stated in the printed reasons. No doubt it was argued that the intro- duction of the new power showed that the wife was not to further execute her original power. Her power of revocation, in fact, was only over her own reversion in fee, in case there was no issue ; for if there had been issue, the APPENDANT AND IN GROSS. 91 the power would not have operated. If she survived her husband, and the failure of issue, she might, under her original power, have demised the estate as she thought proper, or made any other disposition of it. The argument, therefore, must have been that the new power thus unnecessarily raised was evidence of an intent that that power was the only modification in- tended to be made of this estate, and consequently that her power of revocation was wholly executed, and the original settlement, with the addition of the power of leasing, was no longer to be revocable. But the argu- ment was properly overruled. 4. If the tenant for life levy a fine, execute a feoff- ment, 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 pre- sent or future. Fines and feoffments, Sir Matthew Hale has observed, do ransack the whole estate, and pass, or extinguish, 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 recompense in value is of such strong considera- tion that it serves as well for rents, possibilities, &c. going out of, or depending upon, the land, as for the land itself (I.) Where the fine is levied to the tenant of the land, it will operate by way of extinguishment and release (m). But if the fine or feoffment only relate to part of the land, the power remains for the residue of the (k) Albany's case, 1 Rep. Ill; (/) King r. Melling, 1 Ventr. 4 Leo. 13, 219; Digges's case, 225; Savile v. Blacket, I P.Wms. 1 Rep. 157 a; Mo. 603; Ed- 777. wards r. Slater, Hard. 410 ; Bick- (m) Bird v. Christopher, Style, ley v. Guest, 1 Russ. & Myl. 440. 389. 92 CASES OF EXTINGUISHMENT COMMON TO POWERS the land (») ; although in the case of a common-law condition the entire condition would be extinct (0). 5. But the acceptance of a feoffment by a tenant for life will not destroy a power in gross, for the power was never in the feoffor, nor reserved to him, and by the entry of the remainder-man the estate created by the power will be reduced (p). 6. And there are cases in which a feoffment or fine will be deemed not an extinction of the power, but a further assurance of it, or at least merely void. Thus, if tenant for life, with power of leasing, make a lease by livery, the lease will take effect by the deed, and so the livery comes too late to do any hurt. This is an instance of a power appendant (q). So where a power in gross given to a tenant for life was well exe- cuted by deed, and he afterwards levied a fine, in pur- suance of a covenant in the deed, the fine was considered inoperative, as the power was executed antecedently to the fine (r). In Bullock v. Thorne (s), it was agreed, that if one, with power of revocation, make a lease for years, and levy a fine for assurance of the lease without use ex- pressed, the power of revocation is not extinct by the fine, but suspended during the term. In Ingram v. Parker a tenant in tail under a settle- ment, with a power of revocation by bargain and sale, sold for 1,000 1.; but the deed was not enrolled, and afterwards a fine was levied, and three Justices held that (n) Digges's case, ubi sup., and (q) See 1 Ventr. 291. see Mo. 618. / \ tu ^^ tv t.* •/* (?•) Ihomunson v. Dmhton, 10 (.) Co. Liu. 237 a. Mod?1 _ (p) Hard. 417. See Shep. Touch. p. 14, as to the distinction be- {s) Mo. 615; and see Perrot's tween levying and accepting a fine, case, Mo. 368, APPENDANT AND IN GROSS. 93 that the fine was an extinguishment of the power. But in a later ease, Hale, C. J., doubted of the case to be law (t) ; and it appears that one of the grounds upon which the case was decided was, that the donee havino- an estate tail in him, the deed [and fine] might operate upon his interest. 7. In some cases, a fine accompanied by 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, 1st, 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 (it). In this case, however, it was doubted, whether the power would not have been destn^ed had the fine been levied before the execution of it. In a subsequent case the precise point arose. A tenant for 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 in the manner required by the power. The jury found the fine to be levied with an intention to make partition, and to the uses declared in the deed. This case was argued by all the able men of the time, and it was determined by Lord Chief Justice Herbert, Holloway, and Wright, against Withers, 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, (t) Raym. 239; 1 Ventr. 280, Lev. 149; Raym. 239; 3 Keb. 291. 366, 489, 510, 530, 572; and see («) 1 Ventr. 278. S. C. nora 11 Mod. 184. Wigson v. Garrett or Gerrad, 2 i'4 CASES OF EXTINGUISHMENT COMMON TO POWERS judgment, however, there was an appeal, and it was reversed by six Judges against two, principally on the ground that the fine and deed were but one and the same conveyance, and both together were an execution, and not an extinguishment 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 extinguishment of a right merely by relation, which is but jictio juris (u). 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 power. In- deed, Mr. Justice Withers, who was the only Judge of the King's Bench that held the power was not destroyed, expressly said that the fine and deed should be considered as one conveyance in favour of com- mon assurances, where the distance of time is not apparently long (x). Where it is recited in the deed, that the fine was, at the time of levying it, 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 ; the deed would operate as an estoppel (y). But, as against strangers, it is conceived, that («) Herring v. Brown, 2 Show. (x) Comb. 12. 185 ; 1 Ventr. 3GS. 371 ; Skin. 35, (y) Carth. 24. 53,71,184; Carth 22 ; Comb. 1 ] . APPENDANT AND IN GROSS. U5 that it would be left to a jury to say whether the fine was, or was . not, levied to the uses subsequently declared {£). 8. In a recent case, a man was tenant for life under a will, with remainders over, in strict settlement, with powers of sale and exchange, and other powers. After the testator's death his heir at law agreed to do all acts for obviating any doubts under a prior will, and accordingly he and the tenant for life conveyed to a tenant to the precipe, for suffering a recovery to enure to the uses of the last will ; and it was expressly declared to be " for the more effectually assuring and settling the estate ac- cording to the uses in the will of the last testator." The tenant for life was vouched in the recovery jointly with the heir at law. A purchaser to whom the estate was sold, under the power of sale in the last will, objected to the title, on the ground that the power was extinguished. In support of the title, it was insisted that a fine or reco- very by a donee of a power does not necessarily, and in all cases, operate as a destruction of it. Herring and Brown shows that it is a question of intention. The same construction must prevail whether the fine be in- tended as a confirmation or an execution of the power. In Bullock and Thorne it was even said that the fine would not extinguish the power, because it was for fur- ther assurance, although no use was expressed. In the present case, the intention was, by the precedent deed, declared expressly to be to further assure the estate to the old uses. A deed and recovery by the tenant for life, intended as an execution of the power, would have had that effect only. A deed and recovery by him, intended as a confirmation of the power, must, upon the same principle, have that operation and no other. The innocent (z) See Bushell v. Burland, Rep. temp. Holt, 733 ; 11 Mod. 196. DO CASES OF EXTINGUISHMENT] COMMON TO POWERS innocent intention prevents the recovery from ransacking the whole estate, and extinguishing the powers. In this case also («) the purchaser thought proper to be at the expense of an Act of Parliament. It recited that A being tenant for life in possession of the estates, and having joined in conveying the same in order to suffer a common recovery thereof, wherein lie was vouched, for strengthening and corroborating the title thereto, and the uses to which the same were limited by the last will, and which recovery had been duly suffered, it was apprehended that the powers given to A by the will had been by such common recovery defeated and destroyed. And it revived and confirmed the powers. But in a later case, where, upon the same grounds, a similar act was applied for, the Judges expressed their opinion verbally against the necessity of the act ; and Lord Eldon, after consideration, declared that there was no ground for the doubt, and the bill was abandoned (b). There, by a settlement executed in 1806, estates were settled to the use of A, and B his wife, for their lives successively, remainder to their sons successively in tail male, remainder, if the wife should survive the husband, to her, her heirs and assigns ; if the husband should survive her, to their daughters successively in tail male, remainder to such of her relations as she should by will appoint, in default of such appointment to her in fee, with powers of sale and exchange, exercisable by trus- tees, with the consent of the husband and wife. In 1807 they executed a deed, in which, after reciting that the wife was desirous of acquiring an absolute power of appointment over the hereditaments comprised in the settlement, on the event of her surviving, or dying in the (a) Vide supra, p. 59. edit. p. 380; and gee the learned (b) Butler's n. to Fearne, last Editor's reasons. APPENDANT AND IN GROSS. 97 the life-time of her husband, and there being a general failure of issue of her body entitled or inheritable under the uses of the settlement, they covenanted to levy fines of the settled estates, and directed them to operate to the uses of the settlement, antecedent to those to her in fee-simple, and after the determination of those uses to such uses as she should appoint by deed or will, and in default of such appointment to the use of her in fee- simple. The fines were accordingly levied in a subse- quent term. Part of the estate being offered for sale, an objection was taken that by the inherent and unavoidable operation of the fine at the common law, all the uses might be considered to have been divested, and the powers extinguished or determined. The case above referred to is Lord Jersey v. Deane (c). The fines were sur conuzance de droit come ceo, &c. ; and it was held by the Court of King's Bench, that the fines did not operate to extinguish, destroy, or suspend the right or power of the Earl and Countess, and the survivor of them, to request and direct a sale or ex- change of the settled estates under the powers for that purpose contained in their marriage settlement, so as to prevent an exercise of those powers by the trustees of the settlement (d). 9. Where, as in a case before put, a power is append- ant as to some estates, and in gross as to others (e), an act of the donee may bar it, so far as it is appendant, and leave it in full force so far as it operates as a power in gross. Thus, to put the same case : A is tenant for life, remainder to B in tail, remainder to A in fee, and A has a power to jointure. We have seen, that the power (c) 5 Barn. & Aid. 569. {(1) See Tyrrell v. Marsh, 3 Bing. 31 ; 10 Moo. 303. (e) Vide supra, p. 44. II 9QB ( \SES OF EXTINGUISHMENT COMMON TO POWERS power is in gross as to the estate for life and remainder in tail, appendant as to the remainder in fee. If, there- fore, A should convey the fee by an innocent con- veyance, lie would destroy his power so far as it is a power appendant, and consequently, if the remainder in fee should come into possession, the grantee would not be bound by a jointure created under the power; but the power, so far as it took effect as a power in gross, would not be defeated ; and therefore the jointure would be binding on the estate after ^4's death, and during the continuance of _B's estate-tail. 10. In a former part of this chapter it is stated that a power to a tenant for life to appoint the estate amongst his children, is a power in gross, and consequently may be released or extinguished. But lawyers of great eminence were formerly of opinion, that a power to a tenant for life to charge portions for his children, or to appoint the estate amongst his children, was a mere right to nominate one or more of a certain number of objects to take the portions or the estate ; and that, as a mere pow r er of selection, it could not be barred by fine. Nu- merous titles were objected to on this ground. Westv. 11. The point was argued at great length before Sir Berney. John Leach, Vice-Chancellor, in the case of West v. Berney, and his opinion was, that the power was de- stroyed, although it became unnecessary to decide the point (f). All the cases were fully discussed, and the learned Judge took a short review of them. He said that in Albany's case, 1 Rep. Ill, it was held that the reserved power of the grantor may be extin- guished by his release. He took in the settlement an estate for life. In Digge's case, 1 Rep. 173, it was held that (f) West v. Berney, H. T. Cunynghame v. Thurlow, ib. 486, 1819, MS.; 1 Russ. & Myl. 131 ; n.; Bickley v. Guest, ib. 440. APPENDANT AND IN GROSS. 99 that the reserved power of the grantor, who took by the deed also an estate for life, being to be executed by deed indented and inrolled, was extinguished by his fine levied after a revocation, but before inrolment. In Leigh v. Winter, Sir W. Jo. 411, it was held that the grantor could release his reserved power of revocation. He took by the settlement an estate for life. In Bird v. Christopher, Stiles, 389, it was held that if A enfeoff, with power of revocation, and afterwards levy a fine, the power is extinguished. Edwards v. Slater, Hard. 410, was cited for the able reasoning of Lord Hale upon the distinctions of powers ; whose opinion seems to be, that where the party, to execute the power, has or had an estate in the land, it is not simply collateral ; and whether it be appendant to his estate, as a leasing power, or unconnected with his particular estate, and therefore in gross, it may be destroyed by release, fine or feoffment. In King v. Melling, 1 Ventr. 225, it was held that a power in the devisee for life to jointure his wife was extinguished by a recovery. In Tomlinson v. Dighton, 1 P. Wms. 149, it seems to be admitted, that where there is a devisee for life, with power to appoint to her children, the power would be extinguished by fine. In Saville v. Blackett, 1 P. Wms. 777, it was held that a tenant for 99 years, if he should so long live, extinguished his power to charge the estate with a sum of money by joining in a recovery and re-settlement of the estate, because he would otherwise defeat his own grant. Upon these authorities and principle, he held that a power simply collateral, that is, a power to a stranger, who has no interest in the land, cannot be extinguished or suspended by any act of his own or others, with respect to the land. It is clear, too, that it cannot be released where it is to be exercised for the benefit of another. It must be equally clear that it may h 2 be lOt) I ASES OF EXTINGUISHMENT COMMON TO POWERS be released where it is for his own benefit, as a power to charge a sum of money for himself. In such case, his joining in a conveyance of the land, clear of the charge, would he a release Every power reserved by the grantor, whether he has retained an interest in the estate, as tenant for life or otherwise, is an interest in him, which may be released or extinguished. Bird v. Christopher. It differs altogether from a naked autho- rity given to a mere stranger. It is so much reserved by him out of the estate. Every power reserved to a grantee for life, though not appendant to his own estate, as a leasing power, but to take effect after the determination of his own estate, and therefore, in gross, may be extin- guished. In respect of his freehold interest, he can act upon the estate, and his dealing with the estate, so as to create interests inconsistent with the exercise of his power, must extinguish his power. The general princi- ple is, that it is not permitted to a man to defeat his own grant Such a power in gross, in tenant for life, would not be defeated by a conveyance of his life estate, as a power appendant or leasing power would be defeated ; because the conveyance of his life estate is not inconsist- ent with the exercise of his power. Quaere, could such a power in gross, in a tenant for life, be released ? If he were grantor, it was decided by Albany's case, and Leigh v. Winter, that it could be released, and he thought it might equally be released, if he was grantee ; because his release must be to him who takes subject to the power ; and the exercise of the power would be incon- sistent with the release, which is a species of conveyance affecting the land ; sed quaere (I). The power he held was (I) The note of the judgment was extracted from the learned Judge's note-book. There seems to be no foundation for the quaere. The power in either case may be released. APPENDANT AND IN GROSS. 101 was not a trust, because the alleged cestui que trust can- not call for the execution of it. It may be exercised or not ; and a dealing- with the estate, inconsistent with the exercise of it, determines the option to exercise it. In King- v. Melling the power was a particular power. The relief given against frauds upon the power, as in the case of an appointment by a father substantially to him- self, does not prove the existence of a trust ; it proves only that a power given for a particular purpose shall not, by circuity, be exercised for a different purpose. He thought that the two general principles were esta- blished, that every power reserved by a grantor may be released or extinguished, although he reserved no other interest in the estate, and that every grantee for life, with a power in gross, may in like manner release or extinguish it. This important point was again shortly argued before the same Judge, in Smith v. Death (g), and he decided in favour of the destruction of the power ; and in the case of Horner v. Swann, Sir Thomas Plumer, Master of the Rolls, followed that judgment (K) ; and in a later case (J), before Sir John Leach, he held that a power to a father, tenant for life, to appoint portions to younger children, which were to be raised under a term of years only in case of appointment, was extinguished by a fine levied by the father. The point, therefore, may now be considered at rest (I). 12. But although a power to appoint to children may be (g) Ch. 19 June 1820, MS.; S.C. (?") Bickley v. Guest, 1 Russ. & 5 Madd. 37 1. See 1 Bligh, 15. Myl. 440. (h) 1 Turn. & Russ. 430. (I) The argument in all the former editions of this work in favour of the destruction of the power is therefore now removed to the ,\p- pendix, No. 1. H 3 102 CASES OF EXTINGUISHMENT COMMON TO POWERS be released over both real and personal estate, and by the release the children, being entitled in default of appointment, may become entitled to the property dis- charged of the power, yet the donee of the power cannot, by his release, at once entitle himself to stand in the place of a deceased child. Therefore, in a case where the father released such a power over personal property, his children entitled, in default of appointment, were allowed to receive their shares ; but as to a share vested in a deceased son, who had made his father his executor, the Court refused to give present effect to the release, so far as it operated to vest a share of the fund in the father, who was the donee of the power (k). 13. We have given many instances of the effect of fines and recoveries on powers. The late act for the abolition of fines and recoveries (I) substitutes for them simple deeds. Now such deeds will have the same operation as recoveries before had, so far as they barred powers in common with other springing or shifting uses, which were to take effect in defeasance of an estate- tail (in). But where there is a power to appoint to children, and in default of appointment a limitation to any of them in tail, a recovery by the tenant in tail would not have barred such a power, and therefore a deed under the act will not have that operation (w). In Roper v. Halifax, where, however, the intention was to preserve the power of sale and exchange (0), the Court held that the effect of a recovery was to destroy all the remainders, &c. expectant upon the estate-tail. But the power (k) Cunynghame v. Thurlovv, 1 (n) See the argument in App. Russ. & My], 436. No. 4. (1) 3 & 4 Will. IV. c. 74. (0) See App. No. 3. (»?) See s. 15 of the act. APPENDANT AND IN GROSS. 103 power of sale and exchange was one which must act on the land before it becomes subject to the estate-tail, by substituting- other land in its place. It was against all justice that the tenant in tail should destroy the power without the concurrence of the parties interested. There- fore the power was undisturbed by the recovery. The meaning of this passage is, that when the power is ex- ercised the use created takes effect, as if it had been con- tained in the deed creating the power, displacing the estate-tail and providing other property upon which it is to operate. But if a general power of sale and exchange, unlimited as to time, could be supported throughout (jt>), it would be found difficult to deny to a recovery deed the effect of barring it. Fines and recoveries, like feoffments, ransacked the estate, and by their force destroyed powers vested in the parties levying or suffering them, without reference to their operation in barring estates-tail ; but the deed substituted by the act will have an innocent operation only, and therefore it will not bar powers, except where a like deed would have barred them, independently of its operation under the act. 14. Before the late act for the abolition of fines and recoveries^), a married woman could not release or extinguish a power, except by a fine or recovery ; but now every married woman may by deed release or ex- tinguish any power which may be vested in, or limited, or reserved to her in regard to any lands, of any tenure, or any money subject to be invested in the purchase of lands, or in regard to any estate in any lands, of any tenure, or in any such money as aforesaid, as effectually as she could do if she were a. feme sole, save that no such re- lease (p) Vide infra, and see s. 15 (r/) 3 & 4 Will. IV. c. 74. of 3 & 4 Will. IV. c. 74. H 4 104 OF THE MERGER <>»•' POWERS. lease or extinguishment will he valid unless the husband concur in the deed, nor unless the deed be acknowledged by her as directed by the act(r). And it is provided, that the act is not to interfere with any power which, independently of it, may be vested in, or limited, or reserved to a married woman, so as to prevent her from exercising such power in any case, except so far as by any disposition made by her under the act she may be prevented from so doing in consequence of such power having been suspended or extinguished by such dis- position (5). (r) S. 77. (a) S. 78. SECTION VI. OF THE MERGER OF POWERS. 1. Fee and potver may subsist together. 2. Maundrell v. Maundrell. 3. Goodhill v. Brigham. 4. Power merged by the accession of the fee. It remains only to inquire in what cases a power is merged', although, perhaps, in strictness, merger, in the sense it is here used, is but a mode of extinguishing a power (I). 1. Where an estate was limited to such uses as A should appoint, and in default of appointment to himself in fee, great difference of opinion formerly prevailed whether the pow r er was not merged in the fee. Lord Ashburton thought that the separate existence of the power was in- compatible with the ownership of the fee. But it is now settled that the power is not merged : still it may be useful to shortly state the authorities. In (I) The observations in this section which I have recast, were writ- ten before the decision upon the appeal in Maundrell v. Maundrell. OF THE MERGER OF POWERS. 105 In Sir Edward Gere's case (a), upon a feoffment by a person seised in fee to such uses as he should appoint by will, it was settled by all the Judges of England (6), after great consideration, that by operation of law the use vested in the feoffor, and he was seised of a qualified fee, (that is to say,) till declaration and limitation were made according to his power ; and, 2dly, If in such case the feoffor by his will limit estates according to his power reserved to him on the feoffment, then the estates shall take effect by force of the feoffment, and the use is directed by the will, so that in such case the will is but declaratory. But that if he devised his land without reference to his authority, there it should pass by his will, for the testator had an estate devisable in him, and power also to limit an use, and he had election to pursue which of them he would. In the case of Goodhill v. Brigham (c), there was a devise to a feme covert in fee, with a power superadded to dispose of the estate without the control of her husband, and the power was held to be void. In this case the court of Common Pleas seemed to favour the doctrine of extinguishment. Le Blanc, Serjeant, defined a power to be an authority enabling one person to dispose of the interest which is vested in another ; and Mr. Justice Buller highly ap- proved of this definition, which was of course denying the validity of a general power of appointment limited to a person to whom the fee is limited in default of ap- pointment (d). Now according to Sir Edward Clere's case a power may be defined to be an authority enabling a person to dispose, through the medium of the statute of uses, of an interest vested either in himself or in any other person. Buller, J. after commending the definition, said, (a) 6 Rep. 17 b. (c) l Bos. & Pull. 192. (b) See Parker v. Sir Edward (d) See 10 Ves. jun. 265. Clere, Mo. 567. 106 OF THE MERGER OF POWERS. said, " suppose by transposing the clauses we could con- strue this to be ;i devise to such persons and uses as E. Rogers (the feme covert) should appoint, and for want of such appointment to her and her heirs ; if the devise had stood thus she could have taken nothing till her death, or till her appointment," which, he argued, would have overthrown the testator's intention. This position clearly subverted the definition of which he had before approved ; and if the devise would have admitted of this construction the decision may be doubted ; for notwith- standing Mr. Justice Buller's opinion, it is now too late to contend that the wife would not have taken a vested estate subject to be divested by the execution of the power ; and, indeed, that learned Judge himself, shortly afterwards, expressly recognized this doctrine (e). In a case before the late Lord Alvanley when Master of the Rolls (f), in which, upon the authority of Good- hill v. Brigham, it was contended that a general power of appointment was absorbed in the fee limited, in default of appointment, to the person to whom the power was given, he said, " I shall not enter into the question whether upon the case of Goodhill v. Brigham the power could not have been exercised. I think, not- withstanding that case, he might have appointed a use under the power, for I do not conceive the Judges meant to decide that when there is a conveyance to such uses as a man shall appoint, and in default of appointment to his own right heirs, the party may not, under the power, create an estate that will supersede the estate in fee, though perhaps not to bar dower. If that case is taken in the full extent it is very doubtful, and would set aside half the conveyances in the kingdom ; and I desire to be understood that it is not my opinion." Lord (e) See 3 Ves. jun. G01 ; and (,/") Cox i. Chamberlain, 4 see post., eh. 2, s. 4. Yes. jun. 631. OF THE MERGER OF POWERS. ]07 Lord Chief Justice Trevor, in delivering the judgment of the Court in the famous case of Abbot v. Burton (g), treated it as clear, that a remainder limited to a married woman in fee, with a power to her during coverture, to dispose of it as she should think fit, was a valid limita- tion, and that the power subsisted, and might be legally exercised. Lord Hardwicke also appears to have acceded to the doctrine in Sir Edward Clere's case ; for in the case of Peacock v. Monk (h) he said, an estate might be settled to the separate use of a feme covert by way of power over an use, as if she conveyed the estate to the use of herself for life, remainder to the use of such persons as she by any writing, &c. should appoint, and in default of appointment to her own right heirs : and Lord Ken- yon, I find, when at the bar, gave an opinion in favour of the limitation. So in Tickner v. Tickner (i), where Henry and Robert Tickner were seised of an estate in gavelkind as heirs of their father ; Robert made his will, and devised his undivided moiety to his wife in fee. After making his will, by a deed of partition between Robert and Henry, and by a fine, all the gavelkind estate which Robert had devised, was allotted entirely to Robert, to such uses as he should appoint by deed or writing, and in default of appointment to him in fee. This transaction was holden to be a revocation of the will. Now it had previously been decided, in Luther v. Kidby, that a partition by deed and fine would not revoke the devise where the es- tate was limited to the devisor in fee (j). In the case of Tickner (g) 11 Mod. 181; and see (i) 3 Atk. 742, cited. Willes, 180. (j) See Webb v. Temple, 1 {h) 2 Ves. 190; and see Dob- Freem. 542; Luther v. Kidby, bins v. Bowman, 3 Atk. 408. 3 P. Wms. 170, n. April 1730. 1<>8 Df THE MERGER 01 hin i;i!> Tickner v. Tickner, therefore, it was considered that the power of appointment was not merely nugatory, in which case it could not have operated as a revocation, but that the fee could be divested by an execution of the power. It is observable, that of the many Judges who have commented on these cases (A) no one seems to have thought the power of appointment void. On the con- trary, Lord Hardwicke, Lord Rosslyn (/), and Lord Eldon (y/i), appear to have considered that the cases of Tickner v. Tickner, and Luther v. Kidby, can well stand together, which can only be on the ground of the power of appointment being valid. Heath, Justice, thought the power valid (n) ; and Lord Alvanley made two decisions similar to that of Tickner v. Tickner (o), (in one of which Mr. Justice Barrington concurred) not- withstanding the point of the power being merged in the fee was expressly urged against the revocation (p). But Lord Alvanley said there was a power to dispose, which he agreed was not larger than the fee, but it was a differ- ent power of disposition ; he could grant it by a single paper ; he could not convey the fee except by the com- mon modes of conveyance ; and though the power was not larger, yet it was to be executed in a different manner. Indeed, from Sir Edward Clere's case to that of Maundrell v. Maundrell, which we shall presently notice, with the exception of Lord Ashburton's opinion, and the supposed opinion of the Judges in Goodhill v. Brigham, it had been considered clear that the power in question was (k) See 2 Ves. jun. 157, 429, (o) Kenyon v. Sutton, 2 Ves. 062. 6 Ves. jun. 219. jun. 601, cited; and Notts v. (/) See 2 Ves. jun. 429. Shirley, ibid. 604, n. (m) See 8 Ves. jun. 281. (j>) See 8 Ves. jun. 1 15. ' a See 3 Ves. jun, 657 OF THE MERGER OF POWERS. 109 was not absorbed in the fee, and innumerable convey- ances had been prepared on that opinion. The reason generally given in favour of the existence of the power appears to be well grounded ; for even where the power requires a deed or will legally executed, yet if the power subsist the estate may be conveyed by virtue of it, with- out the necessity of the person to whom it is conveyed previously taking possession of the estate, or the pos- session being vested in him by force of the statute of uses, which must be done if the power was absorbed in the fee. 2. In the late case of Maundrell v. Maundrell (gr), it Maundrell appeared that before marriage an estate was limited to dreii. such uses as the husband should by any deed or will appoint ; and in default of appointment, to the use of himself for life, and after his decease to the use of his right heirs. The question, which arose upon the wife's right to dower against a purchaser, was, whether the power was valid. Sir W. Grant said " that the power was merely nugatory, and nothing distinct or different from the fee. The fee was clearly in the husband, until appointment. In Goodhill v. Brigham, he said, it was held that a power added to the fee was merely void. So the power in this case, followed by a limita- tion of the fee, must be absorbed in the fee, which in- cludes every power. The reason commonly given why a power may have effect though limited to the owner of the fee, is, that he may appoint in a mode by which his legal fee would not entitle him to convey : He gave no opinion upon the sufficiency of that reason ; but in this case it was to such uses as he should appoint by deed or will legally executed, and by those instruments he might have passed the fee, though nothing was said about (g) 7 Ves. jun. 501 ; 10 Ves. jun. 24(5. 110 OF THE MERGER OF POWERS. about the appointment. The limitation, therefore, operated purely as a limitation of the fee, and that fee he could only convey subject to her right of dower." From this decision there was an appeal to Lord Chan- cellor Eldon, and he expressed himself dissatisfied with the decision in Goodhill v. Brigham ; and upon the authority of Sir Edward Clere's case, Lord Hardwicke's opinion, and the cases before cited on partitions, and upon the general practice of conveyancers, he held clearly that the power might well subsist with the fee. His authority has settled the point (q). In the case of Roach v. Wadham (r), which was decided six months before Lord Eldon made his decision, and in which the same point arose ; it was erroneously stated, that the decree at the Rolls in Maundrell v. Maundrell had been reversed in the House of Lords, and thereupon the counsel on the other side admitted that the power was not merged in the fee, and the Court of King's Bench in delivering judgment took the point for granted. Goodhill v. 3 j n Goodhill ?;. Brio-ham, before referred to, the devise was to a married woman in fee, with a power superadded for her to dispose of the estate as she should think proper, and as if she were sole. The Court of Common Pleas held this power to be void, as repugnant to the fee before vested in her. We have seen that this decision cannot be relied on. It has never been spoken of with satisfaction. I have seen an opinion of the late Lord Rosslyn's, given in the year 1775, where the estate was limited by a fine and declaration of uses, to the use of C. M., a married woman, in fee, " together with such powers as are hereinafter mentioned and reserved, (that is to say,) that it should be lawful for her to appoint any new (q) Moreton v. Lees, C. P. (>) Roach v. Wadham, G East, Lancaster 1319, post. 289. OF THE MERGER OF POWERS. Ill new or other use or uses, estate or estates," &c. in the usual way. The question was, whether the power was well created. He wrote the following opinion : " The intent of the deed is clearly to give Mrs. M. an option to dispose of her estate, notwithstanding her coverture ; and that construction of the words which will give effect to the clear intent of the deed, and not destroy it, is certainly the best construction. The fee limited to Mrs. M. is qualified in the very sentence itself by the powers after mentioned, inserted for no other purpose but to enable her to dispose of that fee, and which are to take effect out of the very estate given to her. The deed would have been more properly drawn if the first use declared had been to such person or persons, and for such estates, as she by deed or will should appoint, and in de- fault of appointment to her in fee ; but it is exactly the same thing in substance to limit the estate to her in fee, subject to her power of appointment ; for whoever claims as heir to her, must, by the express terms of the deed, take subject to the power of appointment ; and if it is well executed, as in this case it appears to be, the exe- cution of the power defeats the title of the heir." From this opinion it may be inferred that Lord Ross- lyn would not have agreed with the decision in Goodhill v. Brigham had that case come before him ; and it clearly shows that he thought an estate might be effectually limited to such uses as a person should ap- point, and in default of appointment to the same person in fee. In a case before Lord Kenyon he treated it as wholly immaterial in what part of the deed powers are inserted, whether before or after the estates created (s). 4. In the case of Cross v. Hudson (t), before Lord cross t,. Thurlow, (s) Rex v. the Inhab. of Eating- (t) 3 Bro. C. C. <50. ton, 4 Term Rep. 177. Hudson. 112 OF THE MERGER OF POWERS. Tburlow, an estate was conveyed to John Hay for life, with remainders over, with the ultimate remainder to the use of the survivor of him and his wife in fee. And a power was given him, in the usual terms, to appoint a 100 /. a year to take effect after his decease. He exercised this power by his will. His wife died in his lifetime, and all the intermediate remainders became incapable of taking effect, so that he was seised in fee ; and Lord Thurlow held that the power was merged by the accession of the fee. This case is not precisely like Maundrell and Maun- drell. There the donee of the power acquired the estate immediately on the execution of the deed creating the power, so that unless the power had been upheld it would have been void in its creation. But here the donee had not any estate at the execution of the deed in which the power could, under any construction, be absorbed, and consequently the decision, that the power was merged by the accession of the fee, did not wholly strike the power out of the deed creating it, as from its execution, for the power subsisted until the happening of the contingency, which cast the fee itself on the donee. But although the cases may thus be distinguished, yet the principle of the decision was over-ruled by the case of Maundrell and Maundrell. The counsel who argued in Cross and Hudson in favour of the extinction of the power, rested their case on the simple ground that a power could not subsist in a person having the fee. It was said, that wherever a less estate and a larger coin- cide in the same person, a merger takes place, as an estate pur aider vie will merge in an estate for the party's own life, and a base fee in an absolute fee. In this case, it was added, it was the estate of the wife, who gives to the husband a power, which is a mode of property or interest in the land ; the same person cannot have a par- tial OF THE MERGER OF POWERS. 113 tial ownership and an absolute dominion, the interest being of the same kind, and only inferior in degree. Lord Thurlow, in delivering judgment, adopted these argu- ments, for he merely said, he thought with the defend- ants that the power was merged. Now the above arguments are precisely those which were over-ruled in Maundrell and Maundrell. As the power then may subsist with the fee, why, it may be asked, should it be considered as extinguished ? This construction would in many cases work great injustice. For instance, where the power is in gross as to the life-estate, and conse- quently not to take effect till after the donee's death, although he duly execute the power by will before the happening of the contingency, yet the execution will be avoided by the accession of the fee. The courts will, indeed, make his interest in the fee bear out his disposi- tion, but still that in many cases might not be equally beneficial with an appointment under the power. Be- sides, should the case of Cross v. Hudson be supported, it may, be thought, that if a man having a particular power gain the fee by descent, or subsequent convey- ance, the power will be merged ; in which case a prior execution of it by will would be void, and could not be made good out of the fee, as the testator was not seised of it at the execution of his will. But there appears to be no solid ground upon which this distinction can be supported. In many cases the fee is taken not strictly under the instrument creating the power, but by way of resulting use ; yet it is settled that the power may sub- sist with this resulting fee. Indeed in Cross ?;. Hudson the husband had no interest in the estate at the date of his will, which he could charge by will, because the limitation in the settlement was to an uncertain object, viz. the survivor of the husband and wife (u). It {u) See Doe v. Tomkinson, 2 Maul. & Selw. 165. I 114 OF Till: MERGER OF POWERS. It frequently happens that a tenant for life of an estate in strict sett lenient, with the ultimate remainder to him- self in fee, with powers of leasing, jointuring, charging portions, sale and exchange, &c. acquires the fee by the failure of the limitations intermediate between his life-estate and remainder : and it may be questioned, whether all these powers continue after the accession of the fee. Perhaps the better opinion is, that the powers cannot be exercised after the union of the estates, on the ground, not that the powers are merged, but that according to the true construction of the settlement, they were not to endure beyond the continuance of the limitations which they were intended to over-reach. To this there could be no objection ; it would not affect any prior exercise of the power, although by will. Of course where the power has been executed by deed, the accession of the fee will not invalidate the execution. These cases generally arise upon powers of sale and exchange, and therefore they will be considered when we enter at large upon that subject (a;). (x) Infra, ch. 18. WORDS BY WHICH POWERS MAY BE CREATED. 115 CHAPTER III. OF THE CREATION OF POWERS. SECTION I. OF THE WORDS BY WHICH POWERS MAY BE CREATED. 1. 2. 3. 5. 6. 9. 10. 11. 15, 16. 23. 2.5. 26. 30. 31. Formal words not necessary. Recital may reserve a power. Cumulative powers. What is a power and not an interest. {Express estate for life. Where no estate for life is given. An estate for life, with re- mainder to the appoint- ment generally of tenant for life. Result. Particular gifts. Devise to trustees. Where executors take a power to sell only. Executors take a power by implication where they are to distribute the fund. Executor of executor may sell under implied power. Pitt v. Pelham. 36. Produce of real estate blended with personalty. 37. Executor renouncing probate may execute power. 39. Power to survivor. 40. Executors who accept the power may sell. 41. May sell to themselves. 42. Powers do not survive. 43. But under power to executors, survivors may sell. 44. Result. 46. Executor of executor cannot sell. 47. Power to representatives not extended. 48. A new trustee appointed by Court of Chancery not a representative. 5 1 . Powers in deeds. 52. Powers may be authorized to be created by note hi writing, S?c. 1 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- i 2 ject 116 OF THE WORDS 15 Y Willi II ject. Of each of these 1 propose to treat in its order. The first inquiry will properly embrace the cases in which questions have arisen in regard to what persons particular powers were given. 1 . 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, are sufficient for the purpose (a). In favour of the intention the same rule prevails as to common-law authorities created either by deed or will (b). Therefore in a will where a copyhold estate was devised to the testator's family, provided that if his personal estate and a certain other estate should not pay his debts, then his executors to raise the same out of his said copyhold premises ; the rents were not enough to discharge the debts ; and Lord Hardwicke held, that the devise would entitle the execu- tors to sell the copyholds, for the words gave them a power to sell to satisfy the testator's intention of paying his debts (c). So where (d) a testator by his will devised his freehold and copyhold estates to trustees to convey to his sons for life, &c. in strict settlement, with a remainder to his ne- phew for life, &c, and by a codicil directed that a clause should be inserted in the conveyance, to enable the trus- tees, at the request of his son, to sell the copyhold portion of the estate to the nephew, and to reinvest the purchase monies ; and by another codicil confirming his will and first codicil, he directed that the settlement should contain the (a) Anon. Mo. 608 ; Snape v. ley, 2 Ves. 175; Warneford v. Turton, 2 Ro. Abr. 262(B) pi. 3 ; Thompson, 3 Ves. jun. 513. Bishop of Oxon v. Leighton, (c) Bateman v. Bateman, 1 Atk. 2 Vera. 377; and see Fitzg. 421. 222. K d) Greene r. Wiglesworth, I (l>) Earl of Stafford r. Buck- Swanst. 234-; 1 Wils. 313. POWERS MAY BE CREATED. 117 the usual and common powers to the trustees, with the consent of the tenants for life in possession, to sell or exchange all or any part of the lands devised by the will ; the Court held, that the latter power was to ride over the copyhold as well as the freehold estates ; that there was not that incompatibility between the two estates that should induce the Court to reject either. Neither is it material in what part of the instrument the power is inserted (e). 2. So a recital or preamble in a deed, or an exception out of a prohibition, as a declaration that a tenant for life's estate shall determine if he make any alienation to prevent the estates going according to the limitations, otherwise than jointures or leases for 21 years (f), may operate as a good reservation of a power (g) ; but a re- cital 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 have created a new power (h). This can only be understood by an example : In Hele v. Bond a general power was given to appoint and revoke toties quoties ; the donee in a deed of appointment executed under this power, recited 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. 3. If an estate be settled with powers, and a new set- tlement be made of a part of it, with like powers, it must depend upon the intention, to be collected from|the instrument, (e) Rex I?. Inhab. of Eatington, ' g) Fitzgerald r. Fauconberge, 4 Term Rep. 177. Fitz. 207. (/") Read and Nashe's case, (h) Hele v. Bond, infra Ap- 1 Leo. !47. pendix, No. 5, MS. i :i 118 WORDS BY WHICH POWERS MAY BE CREATED. instrument, whether the powers are cumulative or not. The general construction would be against double powers in the same person for the like purpose (i). 4. 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 should stand seised to the uses to be created by force of the power (k). 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 to meet with powers by which 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. Both forms are accurate ; the ancient mode describes the operation of the act, the modern practice points out the effect of it ; and when it is considered that the power is equally well created, whether words denoting the operation, or words describing the effect, are used, and, that when the power is executed the interest created by it is an actual lease, or exchange, &c. under the power, we shall probably think that it is wholly immaterial which form is used. The point, however, has been the subject of much learned controversy (7). 5. It (i) Wigsell v. Smith, 1 Sim. & 27 1 b ; Powell's n. to Fearne's Stu. 321 ; 5 Russ. 299. Ex. Dev. p. 379 ; and Preston's {lc) Popli. S1-. Tracts, p. S 1-. (I Sec Butl. n. (I) to Co. Litt- WHAT WORDS CONFER A POWER. 119 5. It will here be proper to consider what is a power, and not an interest. 6. A devise to A for life, expressly, with remainder to such persons as he shall by deed or will, or otherwise, appoint, will of course not give him the absolute interest, although he may acquire it by the exercise of his power (m), and the rule applies to personal estate as well as to real estate (»), 7. A devise of property to the discretion of A passes the fee, and does not merely confer a power : so a devise at the disposition of A carries the fee. It is equivalent to a devise to A to give and sell at his pleasure. There is no difference between a devise that A shall do with the land at his discretion, and a devise of the land to A to do with it at his discretion (p). 8. 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(jo). But this doctrine refers only to a devise, for in a con- veyance such a limitation would merely confer a power on the party, and not give him an estate in fee. 9. Where there is an express estate for life given by will, with liberty to give the fee to particular persons, the devisee will take for life, with a power to appoint the estate to the objects designated (q). 10. But where an estate for life is not expressly given, {^j 1 * 1 v * but (???) See Barford v. Street, 16 see Lord Townsend v. Windham, Ves. jun. 135. 2 Ves. 1; Hales v. Margerum, (m) Reith v. Seymour, 4 Russ. 3 Ves. jun. 299; Cook v. Ducken- 263. field, 2 Atk. 565. (o) Whiskon v. Cleyton, 1 Leo. (g) Liefe t>. Saltingstone, 1 Mod. 156; Anon. 3 Leo. 71, pi. I0S; 189; 1 Freem. 149, 163, 176; Baldwin v. Pole, Ch. Trinity T, Cart. .32; Dighton v. Thomlin- 8 Geo. III. MS. son, 1 Comyns, 194 ; 1 P. Wms. (/») See 3 Ves. jun. 470; and 149. I 4 i'20 WHAT WORDS but the estate is bequeathed generally to the devisee, to such ii- - ; he shall appoint at his will and pleasure, nevertheless, restraining the disposition to particular ohjects, it seems doubtful whether the devisee will take a fee-simple conditional, or an estate in fee upon trust, or an estate for life, with a power to dispose of the in- heritance. This is 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 snch of my sons she thinks best." According to Sir William Jones's report of this case (r), 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 con- ditional ; and if she conveyed contrary to the condition, the heir at law might enter for the condition broken (s) : and Whitlock and Dodridge were of opinion that she had a fee-simple upon trust. In Noy's reports (t) it is stated generally, that the wife had a power ; and in Latch's report (which is the best) (ti), Whitlock 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 ; 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 later case (x) the devise was of the testator's " lands, tenements, and hereditaments, to his wife, to be divided and disposed of amongst his youngest child- ren ;" (r) 1 Jo. 137. (t) P. 80. {s) See 4-9 E. 3. 16, pi. 10; (u) P. 9, 39, 134. Anon. Dall. .58, pi. 5 ; Doe v. (x) Anon. 2 Kel. C. C. 6. Pearson, 6 East, 173. CONFER A POWER. 121 ren ;" 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. The better opinion, however, certainly is, that the devise is for life, with a power to appoint the inhe- ritance, 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 objection- able construction 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 con- vey without a fine (I), because the law will not advert to the trust ; 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 (y), and by this construction, instead of the heir taking advantage of the condition broken, the cestui que trust can compel an observance of the trust by a suit in equity. 11. 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 (2), the lands were devised " to the wife for life, and after her decease she to give the same to whom she will." It was determined that she took for life only, but with an authority (?/) See 49 E. 3, 16, pi. 10 ; (z) Anon. 3 Leo. 71, pi. 103; and see Co. Litt. 235 b; Ro. 4- Leo. 41, pi. 110. Abr. Conditions (I), pi. 1. (I) Fines are now abolished, but this does not weaken the argu- ment. Otway. 122 WHAT WORDS authority to give the reversion to whom she pleased, for the express estate for life should not be enlarged by implication («). In a ease, about ten years afterwards, reported in Leonard's first volume (b), the devise was to the testator's wife Edyth, during her widowhood, re- mainder 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 upon the words of the limitation of the remainder to the wife, Quod Integra remaneat dictce Edythce. Goodtitie v. 12. In a modern case (c), the devise was to the testa- tor'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- simple by 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 w r as heir at law, the fee descended to her upon the death of the testator, and she having no issue it was never out of her ; and the Judges, therefore, held a will made by her during her coverture to be void. Against this opinion, the 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 («) See Lord Parker's judg- (6) Jennor v. Hardie, 1 Leo. ment in Thomlinson v. Dighton, 283. I P. Wins. 17 i . (V) Goodtitie r.Ot\vay,2 Wils. 0. CONFER A POWER. 123 very late case (d), where an estate for life only was given, with a power to dispose by will in a contingent event, the case of Goodtitle and Otway was not referred to, but the case in 3 Leon, was relied on as an authority ; and it was determined, that the devisee took for life only, with a power of disposition by will. 13. Sir W. Grant observed (e) that the distinction is perhaps slight which exists between a gift for life, with a power of disposition superadded, and a gift to a per- son indefinitely, with a superadded power to dispose by deed or will. But that distinction is perfectly established, that in the latter case the property vests. A gift to A and to such person as he shall appoint, is absolute pro- perty in A without an appointment ; but if it is to him for life, and after his death to such person as he shall appoint by will, he must make an appointment in order to entitle that person to anything. 14. In Bradly v. Westcott (f), the gift of personal estate was to the testator's wife for her life, to be at her free disposal during her life, and after her decease unto and to the use of such person or persons, and in such parts, shares and proportions, as she by her will duly executed should direct or appoint ; and for want of such direction or appointment, he directed the same to fall into his personal estate : a power only was held to pass. 15. It remains for us to attempt to reconcile these cases : and it is conceived that the case in 3 Leonard must still be deemed a binding authority. As a general rule, (d) Reid v. Shergold, 10 Ves. Bradley v. Westcott, ib. 445; jun. 370 ; and see Nannock v. Fowler v. Hunter, 3 You. & Jerv. Horton, 7 Ves. jun. 391, ace.; 50G. Randal v. Hearle, 1 Anstr. 124; (e) 13 Ves. jun. 45 3. and Fisher r. the Rank of En (.9) Aislabie v. Rice, 3 Madd. (u) II H. 6. 13 b. 256; and 2 Moo. 358. See the (x) Latch, 43. words of the certificate. (*/) S. 1C9. (0 9 H. G. 24b, 25 a. EXECUTORS TAKE A POWER OF SALE. 129 says, that if a man deviseth lands to his executors to be sold, there the. estate passes. In a subsequent folio (z), he takes precisely the same distinction, viz. between a devise 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 (a). 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. And in the still later case of Lancaster v. Thorn- ton (c), it was in like manner held that a power only passed under a " devise, that in case of a deficiency of another estate the testator's two sons and his daughter shall and may absolutely sell, mortgage, or otherwise dispose of, his freehold estate for the payment of such of his debts, legacies, and funeral expenses as the leasehold estate should not be sufficient to pay and discharge." Against this weight of authority there is merely an obiter dictum of Hale's, Chief Baron, that it had been held, that if a man devises that his lands shall be sold by his executors for payment of his debts, that will give the executors an interest as well as if he had devised his lands to his executors to be sold (d). But he did not refer to the case in which this point was decided. The case, however, was not only in opposition to former opi- nions, but has been completely over-ruled by the later cases of Houell 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 interest (z) J 81 b. (c) 2 Burr. 1027. (a) Cro. Car. 382. (d) Barrington v. The Attorney- (b) 3 P. Wms. 308. General, Hard. 419. K 130 WHERE EXECUTORS TAKE A interest 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 (e); 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 case 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 executors 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 (/*), 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 by 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- ment against this distinction. But he admits that the cases of Houell and Barnes, and Yates and Compton, 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 (e) 3S E. 3, pi. 3. {/) Note (2) Co. Litt. 113 a. POWER OF SALE. 131 seem that a devise, that the executors shall sell the land, or, that land shall be sold by the executors, will give them simply an authority. The only question then is, whether a devise of the land to be 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 also upon the authorities. In the case cited by Littleton it seems to have been taken for granted that the estate passed to the executors ; and the reporter ap- pears to have thought it necessary to state only the effect, and not the words of the devise ; and Coke cites no other authority for his opinion (g). Lord Nottingham, in his note to this passage in Littleton (A), states the statute of 21 Hen vin., which applied only to cases where lands are willed to be sold by executors, and it was considered, in strictness, as embracing powers only ; and he cites the 49 Ed. in. 17. " The case was : A woman, seised of lands in London, devised them to be sold by her executors, and died without heir ; that devise prevented the escheat which the king pretended to have, and the executors could enter and sell ; therefore more than a bare authority passed. Yet in 1651, on evidence at the bar, between Wilkinson and White, this case was started, and Lord Chief Justice Roll doubted of this opinion, because, he said, it was only a descent accord- ing to the words of Littleton ; and that it appeared to him, that where lands are devised to be sold by executors, there no interest passes, as in the last clause here." In (g) See Bio. Ab. Devise, pi. 5. 19. 32. 36.4-6.50; Conditions, pi. 139. (h) 236 a. K 2 w HERE EXEC! TORS T IKE A In the case cited by Lord Nottingham from the year- books, it appears, thai do judgment was given; and it is clear, that at this day the devise in that case would be held to give B power only. The devise was (after an estate-tail) of the lands to be sold by the executors, or the executors of the executors, if all the executors should die, and four parishioners of the parish in which the land lay. In the case of North v. Crompton (i) the testatrix appointed Henry North executor of her will : "and I do give all my estate, real and personal [to dispose of for the payment of all my just debts, and for the performing of all such legacies as I have herein, or by the codicil annexed, bequeathed], unto my executor above named ;" and then she gave legacies to several persons. This was held to be a devise to the executor in fee. In the case of Lord Cholmondley v. Lord Clinton, before the Vice- Chancellor (I), in which this point arose, it was insisted that North and Crompton was a clear authority in favour of Coke's doctrine. No question upon a power however arose in that case. The words between crotchets were of course to be read in a parenthesis. The devise was expressly to the executor, and so it is stated in 2 Vern. 253, and the only question was, whether the fee passed although there were no express words of inheritance. The reliance which is placed upon the devise of the land in these cases is not well founded. As Lord Mans- field observed, the expression, / devise, is here synony- mous to saying / will, or my mind is (k). Upon the whole, therefore, the analogy of this case to that of a devise that the executors shall sell the land, or (») 1 Cha. Ca. 196. (k) 2 Burr. 1031. (I) A case was ordered to be sent to the Court of King's Bench for their opinion ; but the order, T believe, was not acted upon. POWER OF SALE BY IMPLICATION. 1 33 or that the land shall be sold by the executors, as well as the authorities, seem to warrant the conclusion, that even a devise of land to be sold by his executors, without words giving the estate to them, will invest them with a power only, and not give them an interest. 26. It sometimes happens that a testator directs his estates to be sold for certain purposes, without declaring by whom the sale shall be made. In the absence of such a declaration, if the fund be distributable by the executor, he will have the power by implication. 27. In a case in the year-book, 15 H. 7 (I), it was said by Rede, Tremail and Frowik, that if a man make his will, that his land, which his feoffees have, shall be sold and aliened, and does not say by whom, then his executors shall alien, and not the feoffees ; and the reporter observes that Finieux, in a manner affirmed this the day before, although he made no observation on the rule at the time it was pronounced by the other Judges. Conisby said, that the feoffees shall alien this, [at that time, of course, the fee was in them,] for they have the confidence placed in them ; but this was denied ; for executors have much greater confidence placed in them than the feoffees have ; for the money to arise by the sale of the executors shall be assets in their hands, and therefore they shall sell. 28. In a case in the 16 Eliz. (m), a man devised his lands to his wife for life ; and because he was in doubt whether he should have issue or not, he further willed by his will, that if he should not have any issue by his wife, that then after the death of his wife the lands should be sold, and the money thereof coming distri- buted to three of his blood, and made his wife and another (I) Appendix, No. 1 ; Keilw. (w) 2 Leo. 220, pi. 270. 43 b.; 17 H. 7. K 3 1 34 w HERE i.m.i i TORS QJ LM BXE< I I'uil anothei his executors, and died. The executors proved the will. The otlur executor died, and the wife sold tlie lands ; and it was the opinion of \\ ray and South- cote, Justices, that the sale was good, although it be not expressed in the will by whom the land should he sold ; lor the monies coming of the sale are to be distributed l>\ his executozs to persons certain, as legacies, and it appertains to executors to pay the legacies, and there- fore they shall sell, &c. as, if a man willeth that his lands shall be sold, and that the monies coming thereof shall be disposed of for the payment of his debts, now the executors shall sell the lands, for to them it belongs to pay debts. Also they held that the lands should be sold in the life of the wife, otherwise they could never be sold, and also the surviving executor shall sell the lands, because the authority doth survive. 29. The same point was decided the same way, in a case in the 23rd of Eliz. (ra), a man excepted out of a devise his manor of li, which " he appointed to pay his debts," and made two executors, and died ; one of the executors died, the other proved the will, and sold the manor, and by the opinion of the court the sale was valid, for such was the intention of the testator, and not to leave the reversion to his heir, but to trust his exe- cutors with the sale for the speedy payment of his debts. 30. And in one case Mr. Justice Wylcl conceived that the executor of the executor might sell, which opinion appears to be well founded, because the chain of repre- sentation was not broken ; and the intent was, that the power should be executed by him to whose hands the money was to come (o). 31. In (n) Anon. Dy. 37 1 b. pi. 3 ; v.. Brown, 1 Cha. Ca. 1 80 ; Tylden see 1 And. 145, 146; Miluard v. i. Hyde, 2 Sim. & Stu. 238. Moore, Sav. 72; and see Tenant (o) 1 Cha. Ca. 178. TAKE A POWER OF SALE BY IMPLICATION. 135 31. In the famous case of Pit v. Pelham (p), the tes- Pit „. tator appointed his wife sole executrix (I). His land at Pelham " Blandford, which was his wife's jointure (being the land in question), he confirmed unto her ; and after her death he appointed it to be sold, and the purchase- money to be divided between his wife and three nephews, one of whom was his heir at law ; and he gave the share of any of his nephews dying in his wife's life-time to a stranger. The persons entitled to the purchase-money sold their interest, and then the exe- cutrix died, leaving executors ; and a bill was filed to compel the heirs of the testator to convey to the pur- chaser. The Lord Keeper called in Twisden and Wyld, J. to his assistance. Twisden doubted that the execu- tors of the executor cannot be compelled to sell in this case, the sale not being to be made till after the death of the executor. Wyld was of opinion that the executor of the executor could sell. A trial was ordered in the Common Pleas, in a feigned action, on two points, first whether Jane, the executrix, had power, and could by the will have sold the lands ; secondly, whether a sale by her executors be a good sale ; and after several solemn arguments the court gave judgment unanimously in the negative on both points, and thereupon the Lord Keeper dismissed the bill, but his decree was reversed in Dom. Proc. (q). In (p) 1 Cha. Ca. 176; see Cook v. Fountain, 3 Swanst. 592; Ben- tham v. Wiltshire, 4 Madd. 44. (g) 1 Lev. 304. (1) The inaccuracy of the early reports should be guarded against. In Fowle v. Green, 1 Cha Ca. 2b'2, it is said, " J. S., seised in fee, deiiseth the lands to his executors to sell and pay debts. The heir shall be compelled to join in the sale, and the Lord Keeper said it was so ruled in Parliament," This, of course, was intended to refer to Pit v. Pelham. K 4 136 WHERE EXECUTORS TAKE A In Levinz, it is said that the Lord Keeper held the will void, because it was not said by whom the sale was to be made, but that the House of Lords decided, upon the advice of the Judges, that the heir should sell; for when no person is appointed to sell, it must be intended that he shall sell who has the estate, which is the heir. Le\ in/, mentions the case in the year-book, and he refers the rule there to cases where the sale is for payment of debts. Levinz however does not appear to be warranted in his conclusions. It is well settled, as we have seen, that the executors, where no contrary intention appears, shall sell, as well where the money is to be applied for pay- ment of debts, as where it is given in the nature of legacies, and is distributable by the executors. There are many cases to which the supposed rule by the Lords could not apply. — For example, a power of sale to pay legacies, without naming any person to execute it, with a devise of the estates in strict settlement in default of and until execution of the power. There the estate would not go to the heir; and, speaking generally, it would be inconsistent to give the power to him, because he may not be capable of executing it; whereas the testator has reposed confidence in his executor, and chosen a person capable of exercising any power which might be given to him. The case of Pit v. Pelham did not, it is conceived, over-rule any of the former cases on this point. There was no ground in that case to give the power to the executrix, because upon the whole will taken together it is clear that the power did not arise until her death, and the power could not by im- plication be given to her executors, because she had no authority vested in her which they could claim as repre- senting her, and the purchase-money was not thrown into the general mass of the testator's personal estate, or POWER OF SALE BY IMPLICATION. 137 or given as legacies, so as to bring it within the grasp of her executors as personal representatives of the original testator. The power therefore was void at law, for want of a person to execute it, and Lord Keeper Bridgman followed the law, and held the heir not bound to make good the omission in equity ; but this, and this only, was over-ruled in the House of Lords. There was no other point to decide upon. Besides, the question as to the power did not arise, for a sale under the power was not required, but only a conveyance to clothe the pur- chaser of the equitable interests with the legal estate. This, it is clear, could not have been effected under the power even if it had been vested in the executors of the executor. 32. In Elton v. Harrison (s), the testatrix having an equitable estate, gave several legacies which her will was should be paid within a year if her lands in A could be sold, and gave the residue after debts and legacies paid, to Harrison, whom she made her executor. Lord Nottingham held this devise sufficient to give the executor authority to sell, the personal estate being first exhausted. In another case (£), where legacies were given, which the testator appointed to be paid by sale of lands, and appointed executors, the Court decreed the lands to be sold by the executors, and the legacies to be paid thereout according to the will. 33. In Newton v. Bennet(w), the testator, after ex- pressing his desire that his debts should be paid, devised that all his estates should be sold forthwith, and after payment of several sums of money, that the remainder might be vested in his executors for the payment of his debts. Lord Thurlow held that the devise (s) 2 Swanst. 276. n. (») 1 Bio. C. C. 135. (0 Carvill v. Carvill, 2 Rep. Cha. 301. las WHERE Illl. -I kvivinc; ok acting devise was tantamount to giving tlic executor a power to soil and to apply the money in payment of debts. 34. In a rase where the testator devised all his real and personal estate to be sold for payment of his debts, and appointed executors, Lord Hardwicke ordered that the executors and the lair should join in the sale (V) ; I a it this cannot affect the rule. :*:>. It appears therefore, to be settled (I), that a power in a will to sell or mortgage, without naming a donee, will, if a contrary intention do not appear, vest in the executor, if the fund is to be distributable by him either for the payment of debts or legacies ; and it seems that whilst the chain remains unbroken, the power, until exercised, will go from him to his executors. 36. And if the produce of the real estate is blended with the personal estate, the power to sell will vest in the executors by implication (?/). 37. It remains only to observe, that where the power is given to executors they may exercise it, although they renounce probate of the will (Y). 38. But where a testator bequeathed an estate to his w r ife O) Blatchu. Wilder, l Atk.420. (2) See the case in H. 7. Ap- (y) Tylden v. Hyde, 2 Sim. & pendix, No. 1 . See Keates v. Stu. 238. Burton, 14 Ves. jun. 434-. (I) The following case I extracted from an abstract of a title : A testator directed that after payment of his debts, legacies, and fune- rals, all his freehold and copyhold estate, called Clavcring Farm, should, as soon as might be after his decease, be sold, and that the money arising thereby, and the profits thereof in the mean time should be considered as part of his personal estate ; and he appointed exe- cutors, who proved the will. The estate was directed to be sold, and the testator's heir at law was to convey the same, pursuant to 7 Ann., enabling infant trustees to convey. Rowley v. Rowley, Nov. 1731, Ch. The case is not an authority. It is clear that the heir was not a trus- tee within the statute of Anne. In words the power was not to arise until " the debts, legacies, and funerals" were paid. EXECUTORS CAN SELL. 139 wife for life, and directed that after her decease the estate should be sold to the highest bidder by public auction, and the money arising from such sale to be dis- posed of amongst certain persons named in his will, and he appointed his wife and another person executors, it was held that the power was not given by implication to the executors, because they had nothing to do with the produce of the sale, nor any power of distribution with respect to it (a). The sums were not legacies payable by the executors. 39. It is unnecessary to observe, that a power to be executed by the survivor of two persons cannot be exe- cuted by the one first dying (b). Lord Thurlow has even decided that such a power cannot be executed by the two persons during their joint lives (c). A power in a will, in case either of two trustees should decline to act, to the survivor of the trustees, to appoint new trus- tees, authorizes the continuing trustee to appoint new ones ; but if both refuse to accept the trust, they cannot exercise the power (d). 40. Formerly, where a power was given to executors to sell, and one of them refused the trust, it was clear that the others could not sell. But the statute of 21 Hen. viii, c. 4, provided that where lands are willed to be sold by executors, and part of them refuse to be executors, and to accept the administration of the will, all sales by the executors that accept such adminis- tration shall be as valid as if all the executors had joined (e). But although one refuse, the others, it was said (a) Bcntham v. Wiltshire, (e) Mac Adam v. Logan, 3 Bro. 4 Madd. 41 ; the same point was C. C. 320. decided by Sir Thomas Plumer (d) Sharp v. Sharp, 2 Barn. & in Patton v. Randall, 1 Jac. & Aid. 405. Walk. 18P. (e) See 6 Term Rep. 396. (Jb) Bishop of'Oxonr. Leighton, Denne v. Judge, 11 East, 288; 2 Vern. 376 Gilb. on Uses, p. 128, and n.(4). Barber. 1 1<> WHERE THE SURVIVING <>K ACTING said by Coke, could not sell to him, because he is still party, and privy to the will (/"). That however has been over-ruled (g). 41 . In such cases the executors may, at law, sell to a trustee lor themselves, or may sell to one of themselves, and an appointment accordingly cannot be impeached at law (A). Mcintosh This was decided in the case of Mackintosh v. Barber, where a man devised his estate, with the personal pro- perty upon it, to be sold as soon after his decease as possible, and in such manner as might be productive of the greatest value ; he then directed payment of his debts and of a legacy, and gave the residue of his pro- perty to legatees ; and if they all died without issue under 21, then to A, B, C, and _D, which four persons he appointed as his executors to see that everything was duly performed according to his will, and he appointed E and F as executors, in addition to the above persons, for which he requested those two would accept 50/. each, and he requested they would act as guardians in con- junction with the four, for the care of the persons and property of his first-named legatees. The will was proved by A, B, and C, the other three having re- nounced. The estates were sold by the three to E, one of the executors who had renounced. Four sets of deeds were stated to have been executed : 1 . All six executors conveyed one lot to Peter Thomson in fee. 2. The three executors who had proved, conveyed another lot to Thomson in fee, and by a separate deed Thomson declared that he was a trustee for the executor and purchaser E. 3. By other deeds, the three executors who had proved conveyed to E another lot in fee, and 4. by {J ) Co. Litt. 113a. (h) S. C. The conveyances (g) Mackintosh v. Barher, 1 stated in that case were so stated Bing. 50. in order to raise every question. EXECUTORS CAN SELL. 141 4. by other deeds, all six conveyed to E (one of the six) another lot in fee. No such deeds had really been executed, but they were stated by the writer in order to raise the several points — 1 . Could the three who had alone proved, sell by themselves ? 2. Could all the six join in a sale? 3. Could a conveyance to a nominal purchaser, being really a trustee for another, be sus- tained ? 4. Could the three and the six respectively sell to one of themselves who had renounced probate ? All the questions were answered by the Court of C. P. in the affirmative, and the Court of Chancery acted upon their opinion. Whether such a sale can be sup- ported in equity must depend upon the circumstances. In the above-mentioned case the Master had found that it would be for the benefit of the cestuis que trust that the contract should be completed. 42. It is regularly true at common law, that a naked authority given to several cannot survive. Therefore, if a man devise his lands to A for life, and that after his decease, the estate shall be sold by the executors, naming them, as by B and C his executors, or by B and C, who are not named executors, in that case, if one of them die during the life of A, the other cannot sell, because the words of the testator would not be satisfied (i). The same doctrine applies to powers operating under the statute of uses, for in a case where cestui que use in fee before the statute of uses willed that his feoffees A, B, and C, should suffer his wife to take the profits for her life, and that after her de- cease the premises should be sold by his said feoffees, one of the feoffees died, and then the wife died, and the question (i) Co. Litt. 1 13 a; see Mo. 61, Attorney-General v. Gleg, 1 Atk. pi. 172 ; and see Wilm. 49; and 356. Peyton v. Bury, 2 P. Wms. 626 ; 142 wiir.m- tiir surviving question was, whether the survivors could sell, and it was ruled that they could not (k). 43. But where the words of the testator can be satis- fied, a court of law will relax this rule. Therefore, if three or more executors are appointed, and the devise is, that the estate shall be sold by the executors gene- rally, there the survivors may sell, because the plural number of executors remains (I). Coke states, that if a man deviseth his land to A for term of life, and that after his decease his lands shall be sold by his executors generally, and make three or four executors ; and during the life of A one of the exe- cutors dieth, and then A dieth, the other two or three executors may sell, because the land could not be sold before, and the plural number of his executors remains. But if they had been named by their names, as by J. S., J. N., J. _D., and J. G., his executors, then the survi- vors could not sell the same, because the words of the testator would not be satisfied ; and he then states the case of Vincent v. Lee. A devised certain lands in tail, and if the donee died without issue, that his said land should be sold by his sons in law, he in truth having five sons in law : One of them died in the life of the tenant in tail, who afterwards died without issue, and then the four of the sons in law sold the land ; and it was adjudged that the sale was good, because they were named generally by his sons in law, and the land could not be sold by them all ; and the words of the will in a benign interpretation are satisfied in the plural number, albeit they had but a bare authority, but if they had been particularly named it had been otherwise (m). Al- though (k) Dy. 177, p. 32; and see {m) Vincent and Lee, Co. Litt. Stile v. Tomson, Dy. 210. 1 13 a; Cro. Eliz. 26 ; 1 Leo. 285 ; (I) Co. Litt. 3 a; see Dy. 177, 3 Leo. 106; Mo. 147; Dy. 177, pi. 32 ; Garbland v. Mayot, 2 side note to pi. 32. Vern. 105. EXECUTORS CAN SELL. 143 though the power in the above case was after the deter- mination of a particular estate, and one of the donees of the power died during the particular estate, and Coke confines himself to such a case, yet the principle upon which the case was decided applies equally to a present power, and, as we shall presently see, the rule has been carried even further in some instances. 44. In a case in Dyer (V), where two executors were appointed, 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 : Dyer resolves the same case in his reading on the statute of wills : " A man willeth that his executors shall sell his lands for the payment of his debts ; they all die but one ; he maketh the sale ; the vendee shall not have the land ; contrary the law if to the executors to be sold ;" and there are other authorities to the same effect (0). But cases are not wanting on the other side of the question : and in the case of Houell v. Barnes, although it was holden that the executors took an autho- rity only, yet Jones, Crooke, and Barkeley, determined that the survivor could sell (p). 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 gives 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 testator also names them executors, if the one dies the other may sell, for the interest is annexed to the executorship by this repeti- tion («) Dy. 219, side note to pi. 8; 382, 1 Jo. 352, pi. 3, nom. Barnes, and see Goulds. 2. S. C. case ; Anon. 2 Leo. 220, pi. 276; (0) Lock v. Loggin, 1 And. 145; Milvvard v. Moore, Sav. 72 ; and see Jenk. Cent. p. 44. see Anon. Dy. 37 1 b. pi. 3. (/?) Houell v. Barnes, Cro. Car. 144 WHERE THE SURVIVING tion in the will (q). Mr. Hargrave has endeavoured to establish that where the power is given to executors, or to persons nominatbn in that character, the survivor may sell, as the power is given to them ratione officii ; and as the office survives, by parity of reason the authority should also survive (?•). And the liberality of modern times will probably induce the courts to hold, that, in every case where the power is given to executors, as the office survives so may the power. We shall hereafter see that it is well established, that equity will interpose to prevent the consequences 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 by 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- natbn, 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 advice, to give the authority to the executors or the survivors, or survivor of them, or to such or so many of ( Ves. jun. 12 K l :i L50 WHERE REPRESENTATIVES could not be what, he meant. By so limiting the power he put it in the power of the trustees to pass it by devise, or in any other manner in which real estate could be conveyed ; but he could not mean that whatever would be an alienation of the estate, should be a transfer of the power. In the execution of the trust they might have occasion to sell the whole estate, but would the power pass from them and go to the vendee? (I) The power was not appendant to the estate, by itself it was inca- pable of alienation, and it is only quasi persona designata that it could go to the heir. A and B did not answer that description. The power therefore w r as not vested in them. Whether in any sense they could answer the description of executors of the surviving trustee, with whose own property they were not to intermeddle, it was not material to determine, for by themselves the executors could not exercise any portion of the power. This is an important case. The decision was that a devisee of the surviving trustee was not his heir within the meaning of the power. The doubt was whether the executor of the surviving trustee, who w r as confined to the assets of the first testator, was his (the trustee's) executor within the meaning of the power. If it had been necessary to decide the point, it would probably have been held that he was. A further doubt w r as stated in the judgment. It was said that the original trustees and executors were the same persons. All the real and personal estate were vested equally in them, yet all the directions about the distribution of the residue proceed upon the supposition that (I) In the case supposed the estate would be discharged from the trust, but the money in the hands of the trustees would be liable to it, and the power over that would still remain in the trustees. TAKE A POWER. 151 that the same persons are to select the objects and settle the proportions in which they are to take. But if the real estate is to go to one and the personal estate to another, he had left it entirely uncertain how the power was to be executed. — Now the clauses in the will were inaccurately framed, but it can hardly admit of doubt that a power over real and personal estate actually given to two persons, to be exercised by them and the survivor of them, and the heirs, executors or administrators of the survivor of them, may be exercised as expressly di- rected, for although the heir and personal representative may be different persons, yet those persons will answer the description in the power, and would jointly be enabled to exercise it. 48. Where the discretionary power is to trustees, their heirs, &c, yet if there is no power to appoint new trustees, and a new trustee is appointed by the Court of Chancery upon one of the original trustees declining to act, the power is at an end, as it could not be assigned over (c.) 49. In Ellison v. Ellison (d), in a voluntary settlement a power was given to the trustee, his executors or ad- ministrators, to sell the property, and divide the produce in a manner different from the previous trusts declared. There was a power of revocation and new appointment. The trustee re-assigned the property to the settlor, and the deed was held not to defeat the settlement. Lord Eldon said the only difficulty was, that the declaration of the trusts in the first instrument could not be exe- cuted, the second instrument being allowed to have effect. It was said, he observed, that a power was placed in (c) Attorney-General v. Doyley, see \6 Ves. jun. 44, 47 ; and see 4Vin. Ab. 485; 7 Ves. jun. 58 n. ; Ambl. 710. (d) (>' Ves. jun. 656. l. 4 153 POWERS CREATED BY DEED. in the trustee, his executors and administrators, not his assigns, if in sound discretion thought fit to sell and to give a larger interest to the younger children than they would otherwise take. If the trustee had not after the re-assignment that discretion still vested in him, he thought it would not be in the executors of the settlor [who was dead], and it could not be exer- cised by the court, though in general cases trusts will not fail by the failure of the trustee. But though the effect would be to destroy the power of the trustee, which he strongly doubted, yet he did not know that it would destroy the other interests, and he decided that the general trusts remained. Notwithstanding the doubt expressed by Lord Eldon, it would perhaps be held in such a case that the power could not be executed by the trustee who had relin- quished that character. 50. Whether a power extends to all the persons en- titled under the instrument creating it, or only to some in particular, depends not upon the place where the power is inserted, but upon the fair construction of the whole instrument taken together (e), and of course a power may be given to a man and his assigns, which would pass with his interest through any number of assignments (f). 51. Technical words are so essential to the creation of estates by deed, and their import is so generally under- stood, that a question rarely arises upon a deed, whether a party take an actual estate, or only a power. In the case of Keene v. Deardon (g), it appeared, that estates were (e) See 2 Str. 961,12 East, 445. ( g ) 8 East, 248. (/) How v. Whitfield, 1 Ventr. 338, 339, post. POWERS CREATED BY DEED. I 53 were conveyed to the use of trustees, and their heirs, in trust, with the consent of the parties interested, to sell the inheritance in fee, and apply the money upon trusts ; but it was provided, that until the inheritance 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 fee, but the counsel entered into an argument of some length, to show that they took a power 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 in- serted in mortgages, that the mortgagor shall receive the rents until default is made in payment of the mortgage- money ; 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, admitted to have any legal operation, yet upon what ground could it be argued that this proviso would convert the prior legal estate of inhe- ritance, created with proper 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 a case in Ireland (K) a recovery, in which A and B were the recoverors, was declared to enure, to the intent to let in several debts as charges on the estate. And upon trust that A and B, and the survivor of them, and his heirs, should forthwith, or as soon as con- veniently might be, with the consent of the tenant in tail, and (//) Eyre v. Fitton, Excheq. 1815. Ms. 154 OF THE INSTRUMENTS BY WHICH POWERS and after his decease, of their own free will, by sale or mortgage of the (states, or a competent part thereof, raise sufficient money to pay the debts and interest, and expenses; with a declaration that the trustees' receipts should be discharges, and after payment of the debts, &c. " upon trust, to hand over the residue of the money arising from such sales or mortgages, if any, to the tenant in tail, his executors and administrators, and sub- ject to the aforesaid power of altering or mortgaging, so granted to the said A and J5, the said estates, or such of them as shall remain unsold, to enure to the use of the tenant in tail, his heirs and assigns for ever." It was contended, upon a trial in ejectment, that the use resulted to the tenant in tail, and that the trustees took a power only. Mr. Baron George reserved the point, and the Court of Exchequer, after argument, deter- mined that the legal estate was conveyed to the trustees, and remained still in them to enable them to execute the trust. 52. It remains to observe, that no particular solem- nities are by law required to the execution of powers. It 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 by a simple note in writing (i), or by will unattested, or attested by only one or two witnesses, and this although the subject over which it rides is real estate. In the early case of Day and Thwaites (A), where Thwaites made a settlement to the use of his children, as he should, by any writing under his hand and seal, testified by two credible wit- nesses, appoint : and he afterwards made a will with but (?) Vide infra. (*) 3 Cha. Ca. 69. 02 ; see 2 Vera. 80. MAY BE AUTHORIZED TO BE EXECUTED. i 55 but two witnesses ; and two witnesses, as it was observed, were not enough by the statute to make it a good will. The question was, whether this being void as a will by the statute, should be yet a good declaration of the trust, and an execution of the power : and it was held by Lord Chancellor Jeffreys to be so. And Mr. Baron Powell, in a later case, thought the Court of Equity did very well in decreeing it to be good. For though it were not effectual in all points (as it was intended) as a will, yet it was a writing which had all the circum- stances required by the power ; and therefore he saw no reason to question whether it were good. This, therefore, established that a will attested by two wit- nesses, the number required by the power, is a due ex- ercise of a power to appoint by any writing so attested ; and is, of course, a decision that a power to appoint real estate by a will attested by two witnesses only is valid : for the instrument in Day and Thwaites was maintained because it was authorized by the power, and not struck at by the statute of frauds. And as such a power may be reserved indirectly under a general description, so it may be directly authorized. Therefore a power to appoint real estate by will at- tested by two witnesses is valid. Lord Hardwicke appears clearly to have entertained this opinion (I). In Goodhill v. Brigham (in), however, Mr. Justice Bul- ler seems to have taken it for granted, that such a power could not be reserved ; but this was a mere obiter dic- tum. Lord Hardwicke's opinion is full and clear, that the statute of frauds is entirely out of the question, ex- cept so far as it is the rule which the donee is directed to follow in the execution of the power. The will, he said, (I) Wilkes v. Holmes. 9 Mod. (>«) i Bos. and Pull. 198. 485; see 10 Vcs. 237, 268. J ;,,i OF THE [N5TIIUMENT8 B? WHICH said, operates by appointment, though the party may arbitrarily insert the rules prescribed by the statute (n). And that the appointee cannot claim under the will, but by the deed of settlement directing- the execution of the power; which deed, together with the instrument ex- ecuting 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. And 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. A distinction has, indeed, been taken by a late writer, between a will nominatim, and a writing purporting to be 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 ex- ecuted without the formalities imposed by the statute of frauds (o). It is apprehended that no authority can be adduced in support of this distinction. To show that it is unfounded, it may be sufficient to observe, that Lord Macclesfield decided, on very solid grounds, that the words " any writing in the nature of a will," mean the same as a will (j?). It seems clear, however, that in both cases the reservation is valid. But of course a man cannot reserve such a power to himself by his own will (g), for that would be simply an evasion of the statute of frauds. We shall hereafter have occasion to resume this sub- ject in considering by what instruments powers may be executed ; but it may here be observed, that if a will, or a writing 00 See 9 Mod. 485, 4S6. (p) Longford v. Eyre, 1 P. Wins, 740. ( o) Rob. on Stat, of Frauds, (g) Habergham v. Vincent, 2 Vcs. jun. 332. 04. POWERS MAY BE CREATED. 1 .V a writing purporting to be a will, is required to be the instrument by which the power is to be exercised, with- out saying more, a will, to be a valid exercise of the power, must be executed as a proper will under the statute ; but that where the instrument creating the power is silent as to the instrument by which it is to be exercised, it may, as it seems, be executed by a will, not complying with the statute of frauds (r). (r) Vide infra. SECTION II. OF THE INSTRUMENTS BY WHICH POWERS MAY BE CREATED. Power to lease in bargain and i 8. Conveyance to and to the use sale, or covenant to stand seised, is void. 3. Unless to an individual named, with consideration. 5. But a Power of revocation may be reserved. 6. And all powers in feoffments, §c. 7 . Conveyance to and to the use of A, "with power of revocation, a legal power. n of A, vests the legal fee 9. Devises may be to uses upo which statute of uses will operate. 1 0. Seisin should be commensurate ivith the uses. 12. Where potvers are authorized by articles. 1. A power of appointment or revocation may be reserved either in the body of the deed, or by indorse- ment, 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 (b). And although the power be (a) Griffin v. Stanhope, Cro. (b) Fitz. t. Smallbrook, 1 Keb. Jac. 456. See Outon v. Weekes, 134 ; and see 3 Cha. Ca. 83, 119, 2 Keb. 809. 158 OF THE INSTRUMENTS BY WHICH be interlined, yet it will be good, in the absence of evi- dence, to show that the interlineation was made after the execution. 2. We arc 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 transmutation 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. 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 the validity of the other of those assurances, viz. a covenant 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 power that it is granted to some person within the consideration, of blood (c) ; because by reason of its generality, the power was void at the time the deed was executed. 3. But it seems clear, that a power may be reserved in a bargain and sale to grant a lease to a person from or on behalf of whom a valuable consideration moved at the (c) Mildmay's case, 1 Rep. 175; 1 Keb. 34, nom. Lady Dacre v. Mo. 1 44, S. C; cited Goulds. 17 3, Hazel; Prince v. Green, cited 1 pi. 106, nom. Sherrington's case ; Cha. Ca. 161; 3 Cha. Ca. 91 ; and see Mo. 373 ; Cross v. Faus- Baynes v. Belson, Raym. 247; tenditch, Cro. Jac. 180; S. C. 2 Pine v. Pine, 2 Keb. 809; and Ro. Abr. 260, (A) pi. 1 ; Doro- see Cary, p. 22; Goodtitle v. Pet- thy Chute's case, 1 Lev. 30; S. C. toe, Ftizg. 299. POWERS MAY BE CREATED. 159 the execution, of the deed (d). So a power may be re- served 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 cannot be granted where a general power is reserved to lease to any man. (e). 4. Mr. Cruise has observed in his valuable Digest, that the usual powers of leasing given in modern settle- ments 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 re- served, and a lessee is a purchaser for a valuable con- sideration (f). Now it is certainly clear, that a reser- vation of rent, even a pepper-corn, is a sufficient con- sideration to support a bargain and sale. But this does not altogether remove the difficulty. In a covenant to stand seised, it might be a question whether a lease for any other consideration than that of blood or marriage would be valid. And upon both assurances the ques- tion still remains, whether the generality of the power does not render it void, and whether the consideration ought not to move from the lessee, or become a debt due from him at the time of the execution of the deed creating the power, or at least, whether the considera- tion ought not to be ascertained and fixed in the deed, although it should not be made obligatory on him to accept a lease. The affirmative would seem to follow from the decided cases ; and Lord Chief Baron Gilbert has observed, " that no use can arise in this case ; for where (d) See and consider Parsons 2 Barn. 10, 90, 142; 2 Str. 93+. v. Mills, 2 Ro. Abr. 7 80 (M); See a diction by Lord Chief Jus- Mo. 547. tice Raymond, infra; and Per- (e) Mildmay's case, 1 Rep. 175 ; rot's case, Mo. 36S. Goodtitle v. Pettoe, Fitzg. 299 ; (/) 4 Cruise's Dig. 322. 160 OF THE INSTRUMENTS liV WHICH where the persons arc altotjcthcr uncertain, and the terms unknown, there can be oo consideration, and for which reason the former estates raised upon good eon-idcra- tion cannot by such lessees D€ defeated" ( Warwick v. Garrard. M I 62 OF THE INM IM HENTS Bl H lll< II to ./. S. and his heirs, to //"' wse of J. S. and his heirs, with a power of revocation reserved thereupon, such a power is void ; because ./. S. is in by the common law. And upon the same ground, the same writer douUs whether, upon ;i conveyance to a purchaser and his heirs to such uses as he shall appoint, and in default of and subject to such appointment, to the use of the pur- chaser and his heirs, such a power can be exercised, for, subject to the power, the purchaser is in by the common. law, and the 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 the few remarks which he has made on uses, that in case of a feoffment, or other conveyance, whereby the feoffee or grantee, &c. is in by the common law, such a proviso were merely repugnant and void (o) And a passage in Shepherd's Touchstone (p), where the author, referring to Co. Litt. says, " But in case of a feoffment, or other conveyance, whereby the feoffee or grantee is in by the common law, as where A doth en- 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 by way of use. The question is, whether the releasee is in by the com- mon law. We have already seen that the power if well raised is not merged in the fee. Now although the statute requires that one person should be seised to the use of another, yet there are several cases in which it vests the use in the very person in whom the seisin is vested : 00 I Sanders on U&es, p. 157, (o) Co. Litt. 237 a. and note ib. (;?) P. .525. POWERS MAY BE CREATED. ' (, * :i 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 feoffment in fee to the use of himself for life, and that "after his decease J. N. shall take the profits," that shall create an use in J. jV. ; otherwise, if it had been said, that "after his death the feoffees should receive the profits, and pay them over to J. iW because J. N. would not receive 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 feoffment was made to J. S. to the use of him, and that he should be seised to the use of R. H. that was void as to R. H., because that the use and possession was before 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, yet if none of the limitations of the settlement could pos- sibly take effect without giving the legal estate to the trustees, the settlement must be so construed ; and this, it is said, was done in a case in the House of Lords (t). From these observations, it seems to follow, that in the case under consideration, in order to preserve the power, and to effectuate the intention of the parties, the re- leasee would be deemed to be in under the statute of uses. Since (q) 36 H. 8; Bro. Feffements (s) 13 Rep. 56 ; and see Tip-' al Uses, 340, pi. 52 ; and seeSym- ping v. Cosins, Comb. 313. son v. Turner, 1 Eq. Ca. Abr. (I) See Doe v. Martin, 4 Term. 383, n. (a). Rep. 39. (r) Mo. 15, pi. 138. M 2 lu4 OF THE INSTRUMENTS BY Will, i! Since these observations were published, Mr. Sanders has entered into a further examination of the authorities in support of l;i> opinion (it). It may be conceded to him, that upon a conveyance to A and his heirs, to the use of him and his heirs, A would take in the course of possession by the common law, but that admission does not affect the question ; for in the case put, " the conusee," as Pratt, C. J. observed (#), " did not want the help of the statute, and therefore it meddles not with him, but leaves him in at common law." No case has ever been decided in which, under a conveyance to A and his heirs, to the use of A and his heirs, to the use of B and his heirs, A has been held to be in at the common law. It is true that in such a case A takes the legal estate, but that is in favour of the intention, and he must necessarily take it under the statute. The limitation unto and to the use has received a settled con- struction, which is not suffered to be disturbed by a sub- sequent limitation of the use from which a different intention might be inferred. But where a further use is declared, A must necessarily take under the statute in order to prevent the statute from executing the use limited over. Where no use is limited over to a third person, the estate vests at the common law, and the aid of the statute is not required. The limitation of the use therefore is not called into action. But in the other case, if the estate vest in A by the common law, as it is contended, it is clear that the statute would execute the use limited to B ; for, independently of the statute, A cannot take a legal estate under a conveyance upon which the statute would not operate if uses were de- clared of it. It seems wholly unimportant that the use is (>■■) Uses, vol. i. p. 14-9, 3d (x) Long r. Buckeridge, 1 Str. edit. 111. POWERS MAY BE CREATED. 1G5 is declared to him if it be a use upon which the statute would not operate. It cannot be contended with suc- cess that such a use prevents the further limitation of a use, because previously to the statute a conveyance to A and his heirs, to the use of A and his heirs, would have prevented a resulting use ; and yet this appears to be the only ground upon which the opinion against the operation of the statute can be maintained. For even before the statute a conveyance to A and his heirs, to the use of him and his heirs, to the use of B and his heirs, would have unquestionably vested the beneficial interest in B. This must be denied by the other side, or the question is, it may be thought, at an end. If the statute do not operate on the use limited to A, it must by the very words of it execute the use limited to B. In the case therefore of a conveyance to A and his heirs, to the use of A and his heirs, to the use of B and his heirs, A would have wanted the help of the statute in order to effect what is deemed the intention in these cases, and therefore " it would have meddled with him and not left him at common law." It is how- ever insisted, on the other side, that in the above case, A takes the estate at the common law. And this, and the case stated by Coke, are said to be grounded upon the same established rule, " that a use cannot be limited to arise out of the estate of a cestui que use taking the legal estate at the common law ; that a use cannot be limited on a use, although the first use being limited to the grantee, is not a use within the statute." To this it may be answered, that the law knows no such rules as those stated. If the party out of whose estate the use is to arise, do " take the legal estate at the common law," he is not a cestui que use ; and if the first use " is not a use within the statute," then is it not a use at all ; and therefore the use over must be executed m :i by !<;({ OF THE I NSTR1 M I'.NTS li\ WHICH by the statute. Where it is said that the fine or con- veyance is a common-law conveyance, by which both flic legal estate and the use pass to the conusee without any declaration of uses, it is meant that the whole bene- ficial interest passes, and the instrument amounts to a limitation of the estate, and not a limitation of the use properly so called. Where no use is declared to any other person than the releasee or conusee, it is not an use divested from the estate, as where it is limited to a stranger, but the use and estate go together (?/). In truth, if the supposed use which A takes, is not a use under the statute, it is simply void. But, as in the case of a conveyance unto and to the use of A and his heirs, to the use of B and his heirs, the use to B is void, it follows of necessity that the use to A is executed by the statute. It is further said, " that if the estate is conveyed to and to the use of A and his heirs, to the use of B and his heirs, or to and to the use of A and his heirs, sub- ject to a power of appointment reserved to B, and if in the case first mentioned the use to B cannot be exe- cuted in consequence of the seisin of A being clothed with the use limited to him, upon what principle can the appointee of B in the second take a legal estate ? Upon what rational distinction can the appointee ac- quire a legal estate under the limitation effected by the exercise of the power, when, if the same limitation had been included in the deed itself, he would merely have taken an equitable interest?" The distinction, it is apprehended, between the cases is simply this : in the first case, the use being vested in A, the use to B is a use upon a use, and therefore void ; in {y) Meredith v. Joans, Cro. Car. 214; 230, nom. Jenkins v. Young. POWERS MAY BE CREATED. 1(>7 in the last case, A takes a seisin and a use, but the use is subject to the power, and is only during the existence of the power executed, sub mo do, that is subject to open and let in the estate to be created under the power. When the power is executed, the use appointed takes effect as if properly limited in the deed creating the power ; therefore the use arises out of the original seisin of A, and defeats instead of deriving its essence from the use limited to A. But it is argued, that here the use would arise out of the seisin of A previously clothed with a use : " What difference," it is asked, " can be discovered between the limitation of a use under a power to arise from the estate of a cestui que use having the legal estate by the statute, and from the estate of cestui que use having the legal estate at the common law ?" To this the answer still is, that the case cannot exist " of a cestui que use having the legal estate at the common law," unless it is understood of a person to whom the use is limited in words, but which never arises, because not requiring the aid of the statute he takes by the common law. It remains to say a few words on the authority cited from Coke. It is said, that if there be any meaning at all in the observation, Coke could have contemplated no other case than that put in the Touchstone. " If a feoffment be made to A and his heirs, it is necessary, in order that he may obtain the legal estate at the common law, that there should be either a declaration of the use to him, or a consideration paid by him, to prevent a resulting use to the grantor ; so that, although a grantee may still have a legal estate at the common law, the rule is grounded upon the practice and construction of uses : and it is to be presumed, that Sir Edward Coke, who, in the case stated, was explaining the operation of m 4 the 168 OF THE INSTRUMENTS BY WHICH the statute of uses, understood the principles upon which a legal estate was created at the common law (z)." It was not intended, in the observations on this point in the first edition of this work, to deny that Coke un- derstood the principles upon which a legal estate was created at the common law, but merely to show that his observation did not apply to the case of a use under the statute. He speaks simply of a feoffment, or other conveyance whereby the feoffee or grantee is in by the common law. What has this to do with uses ? Is not a lease for life such a conveyance ? Is not a convey- ance in fee for a consideration paid, such a conveyance? As there are conveyances in which the feoffee is in by the common law, why should it be supposed, in the absence of all evidence in support of such a supposition, that Coke alluded to a conveyance upon which the statute had some operation. A legal estate may be created at the common law wholly independent of the statute, and upon which it cannot have any operation directly or indirectly. Gilbert understood the passage in Coke to refer to cases purely at common law. It is still, therefore, with a sincere respect for the contrary opinion, submitted to the learned reader, that in the case under discussion the statute would be attracted, and consequently the power would be good. Since these observations were published it has been decided that the power is in the disputed case well raised. The conveyance, in the case in which the point was decided, was by feoffment to the purchaser and his heirs, habendum to him, his heirs and assigns, to such uses as he should appoint by deed or will, and in default of and until appointment, to the use of the purchaser, his heirs and assigns. He exercised the power by an ap- pointment (z) Uses, p. 313. POWERS MAY BE CREATED. 169 pointment in. fee, and his wife brought an action to recover her dower. The objection was taken, that the husband was in at the common law, and the power was void ; but the contrary was decided, and the wife was held to be barred of dower. This decision, therefore, sets the point at rest («). In the later case of Doe v. Passingham (b), an estate was conveyed unto trustees, their heirs and assigns, to the use of them, their heirs and assigns, to uses in strict settlement : it was argued that they were in by the com- mon law, and therefore the ulterior uses were executed by the statute ; but it was decided that the legal fee re- mained in the trustees. Mr. Justice Bayley observed, that ever since he had belonged to the profession he had invariably understood that an use could not be limited upon an use. That was admitted to be so in general ; but a distinction had been taken where the limitation was to A, to the use of A, in trust for B, and it was said that it was in by the common law. That was true ; but he was in of the estate clothed with the use, which [the estate or use] was not extinguished, but remained in him. Meredith and Jones showed, that although the trustees in this case might be in by the common law, yet they were in both of the estate and the use. Upon the autho- rity of the cases, he was of opinion that the use of the estate was executed in the trustees. Mr. Justice Hol- royd observed, that although it be true that the trustees take the seisin by the common law, and not by the sta- tute, yet they take that seisin to the use of themselves, and (a) Moreton r. Lees, C.P. Lan- Mr. Sanders republished his argu- caster, March Ass. 1819. Case ment, without alteration, in 1824; reserved and argued before Lord see 4th edit. Chief Baron Richards, and Mr. (b) 6 Barn. & Cress. 305 ; 9 Baron W©od, at Serjeant's Inn. Dowl.&R. 416. 170 OF THE IXSTIUMKNTS liV WHICH and not to the use of another, in which case alone the use is executed by the statute. They were, therefore, seised in trust for another, and the legal estate remained in them. In an early case, Hale, C. B., is reported to have said, that whether feoffees take by the common law or by the statute, yet where the use is once disposed of to them and their heirs, (whether the statute executes it or not), there cannot be an use upon an use, nor a trust upon such a use to be executed by the statute (c). The point decided in Doe v. Passingham was not open to doubt, and Hale's observation was just, that in such a case it is indifferent whether the statute executes it or not. But still, as we have seen, there are cases which render it necessary to ascertain whether the sta- tute does operate. The case of Moreton v. Lees was not cited in Doe v. Passington ; but Mr. Justice Bayley's opinion appears to have been, that the use was executed by the statute in the releasees ; and Mr. Justice Holroyd appears to have only intended to state the rule, that a use cannot be limited on a use, even where the first use is to the releasees themselves. In truth, in such a case where the seisin is vested in the trustees by the common law, and the use is declared to them, there is no necessity for holding that the seisin is transferred to the use, but the estate and use go together: and the operation is just the same, for whether in such a case the seisin is trans- ferred to the first use, or the first use goes along with the seisin, the second or ulterior use is equally excluded. But that does not prove that the statute will not operate upon the seisin in the usual way, where the intention of the parties requires it, and that intention can be effected without (c) Comb. 313. POWERS MAY BE CREATED. 171 without breaking in upon the settled rule that a use upon a use cannot be raised. 8. The above observations also show that there is no weight in an objection that is sometimes made, viz. that where it is intended a purchaser shall only take a trust- estate, the release ought to be to A, to the use of B, in trust for C, the purchaser (d), on the ground that a limi- tation unto and to the use of A, in trust for B, the pur- chaser, would give B the legal estate, as A would be in at the common law, and the statute would operate on the trust limited to B. Every day's practice, however, evinces the opinion of the Profession on this point. In numberless conveyances, 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 (e), where it was insisted that the legal estate was vested in the releasees of a settlement, Lord Kenyon said, that in answer to that, it was sufficient to observe that it was limited to the trustees, without say- ing " to and to the use of the trustees." Indeed, it is apprehended that no one would in practice venture to contend that any limitation could be executed by the sta- tute, after a limitation unto and to the use of the releasee in 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 use of B the trustee, in trust for C himself. 9. In the opening of the work it was observed, that a power given by a will was a common-law authority. But (d) Watk. Prin. Conv. 72, n. For. 138 ; Doe v. Passingham, () Harris v. Graham, 1 Ro. wicke ; reported 3 Vin. Abr. 427, Abr. 329, pi. 12; 2 Ro. Abr. 247, pi. 8 ; 1 Dick. 56, nom. Lady pi. 6 ; Gibbons v. Moulton, Finch, Sutherland v. Northmore. 346 ; Daniel v. Uply, Latch, 39 ; BY MARRIED WOMEN. 185 estate (c) (I). Thus, if a married woman is tenant for life, with a power of leasing in possession, she cannot raise a mortgage-term, for instance, without a statute deed (if the expression may for brevity sake be allowed) ; but by the mere execution of her power, she may create a lease which will, at least in part, and may perhaps wholly, take effect out of her interest. So if she has a general power of appointment, with a limitation in default of appointment to herself in fee, she cannot affect the estate vested in her except by a statute deed ; but she may defeat the limitation, and convey away the estate by the execution of her power. 3. It is not material whether the power is given to an unmarried woman, who afterwards marries (d), or to a woman while she is married, or upon her marriage, and she survives her husband, and afterwards takes another (e) : in all the cases she may execute the power, and the concurrence of her husband is in no case necessary. 4. But, of course, a power given expressly to a woman " being sole" cannot be executed by her during her coverture (c) Driver v. Thompson, 4 346. See Churchill v. Dibben, Taunt. 294-; Boddington v. Aber- Reg. Lib, A. 1753, fol. 252. 2 nethy, 5 Barn. & Cress. 576; 8 Eden, 252; 2 Lord Kenyon, 2d Dowl. & Ry. 626; The King v. part, 68. Lord of the Manor of Oundle, (e) Bayley v. Warburton, 2 1 Adol. & Ell. 283; 1 Nev. & Com. 494; Burnet v. Mann, 1 Man. 586. Ves. 157. (d) Gibbons v. Moulton, Finch, (I) But although a feme covert may exercise a power over a copy- hold, yet, notwithstanding the decision in Driver v. Thompson, it de- serves re-consideration whether she and her husband can surrender her estate to the use of her will, for she is incapable of making a will, technically speaking, and her will in such a case operates on the in- heritance which remains vested in her and her husband in her right. 186 OF THE EXECUTION or POWERS coverture (f). And where, in a marriage settlement* the trust of a term was, if the wife should die and leave no issue by her husband living at her decease, that the trustees should within six months after the decease of the survivor of the husband and wife raise 1,000 £. and pay the same to such persons as the wife "at any time or times hereafter during her coverture, and notwithstand- ing the same," by any deed, &c. should appoint, it was held that the wife had a power only to appoint during the first marriage, and that an execution of the power by her during her second coverture was void (g). Rich. v. 5. It must be remarked, that on the authority of the Beaumont. . _,. . -„ /7\ • 1 i ±- case oi men v. Beaumont (A), it has been sometimes considered doubtful whether a power given to a feme sole was not suspended by her marriage. The settle- ment in that case was made by a single woman, and powers were given to her 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 remedy lay at law ; but upon appeal to the House of Lords the dismis- sion was 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 (i). The case, however, has frequently been cited as an authority that a feme covert if) Lord Antrim v. Duke of (g ) Horseman v. Abbey, 1 Jac. Buckingham, 1 Cha. Ca. 17; 2 & Walk. 381. Freem. 168. There is an imper- (h) 3 Bro. P. C. 308, vol. 6, feet note of this case in 1 Sid. 152, by Tomlins. 101. See 1 Eq. Ca. Abr. 343 ; 3 (i) 4- Vin. Abr. l6S, pi. 26 ; 22 Salk. 276. Vin. Abr. 227, pi. 47; 3 Bro. P. C. 308. BY MARRIED WOMEN. 187 covert may exercise such a power (k). In one case (7), Lord Hardwicke said, " It has been determined in this court that a feme covert can execute a power, as in Travel v. Travel, and in Rich v. Beaumont, where the Lords sent a case to B. R. for their opinion, which they never did before : " and in another case he observed, that it had been disputed whether a feme covert could execute a power coupled with an interest, and it was held she might by the House of Lords, with the advice of the Judges in Rich v. Beaumont : that was a general power. But in the case before him, he observed that the question could not arise, because the power was expressly to be executed, whether covert or sole (in). So that he treated Rich v. Beaumont as an authority, where no expression indicated that the coverture was not to be an obstacle ; and this places the point upon the ground, not of the husband's rights, but of the donor's intention : and in another case, it is expressly stated, arguendo (n), that a case was sent from the Court of Chancery for the opinion 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. The case of Rich v. Beaumont was well calculated to try the rule ; for although the settlement was made in contemplation of the marriage of the female settlor, and made a provision for her separate use, and for her issue, and contained powers to her which, from their wording, might afford an inference that she was to be at liberty to execute them, although married ; yet the power which she did exercise was one limited to her, in case she survived (fc) See 3 Atk. 711 ; Downes v. (m) 2LordKenyon, 2d part, 82. Timperon, 4 Russ. 334-. (») 2 Vcs. Gl ; and see 1 Ves. (0 See 2 Ves. 191. 303, 305. 188 OF THE EXECUTION OF POWERS survived her mother, to revoke, and limit new uses by deed under her hand and seal, executed in the presence of witnesses, or by her last will and testament, duly executed. So that the power was contingent, and the words did not point to an exercise of the power, not- withstanding coverture ; and yet it was properly de- cided that it might be exercised during her marriage. It was argued, that the power was not well executed, for when a power is reserved to revoke by a will duly ex- ecuted, it must mean a legal will, one that is to be made under those circumstances, and with such qualification as the law requires ; but a feme covert's will of lands is by law absolutely void. That there was no necessity of understanding the will mentioned in the power in any sense different from the legal one, so as to mean any declaration of her last will and intent, though during coverture, because she was unmarried at the time of creating the power, and might then have executed it according to law (I) : her marriage was a suspension only of the power during the coverture, and upon sur- viving her husband, if that contingency had happened, she might again have executed it. 6. In Peacock v. Monk, Lord Hardwicke doubted whether an heir at law of a woman would be bound by a mere agreement entered into before marriage between her and her husband, that she might dispose of her estate notwithstanding her coverture (0). And in Churchill v. Dibben (p), a woman who by her marriage settlement had a separate estate, purchased several free- hold and leasehold estates, which, it would seem, were conveyed to her in fee and for the terms, and also con- tracted (0) 2 Ves. 191 ; and see 2 Bro. (p) 2 Lord Kenyon, 2d part C8, C.C.54-4. 175 k (1) This refers to a power to appoint to the issue, and not to the contingent power which she exercised. BY MARRIED WOMEN. 189 tracted for one which was not conveyed to her. By her will she devised some of them. Lord Hardwicke said, that where a feme covert has a separate personal estate, the general rule of the court has been that she may dis- pose of it, or of any personal thing purchased with or arising from it ; and several cases have been so deter- mined. But if part of that personal estate is laid out in the purchase of lands, though those lands are the fruit of and do arise from that separate estate, there is no authority to say she may dispose of them ; for then comes in another person, an heir-at-law, to be disin- herited, and he cannot be bound by any agreement of the husband. If, he added, there be an agreement between husband and wife, intended to enable her to dispose of lands, however strong, it would be of no force, for by no method can an heir-at-law of a feme covert be disinherited but by proper conveyance, fine, declara- tion of use, or appointment. By vesting the whole in trustees, in trust for such person as the wife should ap- point, or by limiting it to such use as she should ap- point, and then when she makes an appointment by the statute of uses, that appointee takes from the original conveyance in which that power is created, and not from the particular instrument by which it is executed. Where lands are purchased after, there is no trust, no use that can give force to an appointment of them. Then as to the lands contracted for but not conveyed, he agreed that the seller was in certain cases to be con- sidered as a trustee ; but had this been conveyed to trustees, a feme covert, without a particular power, can no more appoint a trust estate than a legal one. There- fore, as the purchased lands were not such as she had a power over, he held they could not pass by her will ; but he held the leaseholds did pass. 7. But 190 OF THE EXECUTION OF POWERS 7. But in Wright v. Englefield (y), Lord Northington held, that under marriage articles the wife might ex- ecute her power in the same manner as if she had a power over a Legal estate; and his decree was affirmed in the House of Lords. In this case, indeed, the legal estate was, at the time of the articles, outstanding' in trustees (r) ; 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. Bramhaiir. In a case which occurred a few months before (s). Hall. # V y ' where the wife had the legal estate vested in herself, but had by articles a power to dispose of it, which she exe- cuted in favour of a natural son, and tlien joined with her husband in levying a fine to other uses, Lord North- ington held the execution of the power to be void, and that the estate passed by the fine, and the court could not lend its aid, because there icas no meritorious consi- deration. 8. Lord Northington, however, was not correct in holding a consideration to be necessary. The true prin- ciple on which equity ought to lend its aid is, that the agreement having been made on marriage, the husband would be compelled to make a legal settlement. Ac- cordingly, in Rippon v. Dawding (£), 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 (q) Ambl. 468. See Major v. 467. See Ambl. 474; 2 Eden, Lansley, 2 Russ. & Myl. 353. 221, and the Editor's note. (r) Wright v. Lord Cadogan, (t) Ambl. 565; 1 Powell, Contr. 1 Bro. P. C. by Toml. 486; 2 73; and see 2 Term Rep. 695; Eden, 239. Dillon v. Grace, 2 Scho. & Lef. (5) Bramhall V. Hall, Ambl. 156; George 1. Ambl. 627. BY MARRIED WOMEN. 191 consideration of the objects in favour of whom the estate was devised. He said it was a mistake to call it a ques- tion between volunteers. The agreement was made on marriage, and the wife might have compelled the hus- band to join with her in a fine ; and he thought the case was governed by Wright v. Cadogan, although the legal estate was vested in the wife. It is remarked by the learned and judicious editor of Lord Northington's decisions, that it is observable, how- ever, that in those cases (viz. Rippon v. Dawcling, and Wright v. Lord Cadogan), the court interfered against the heir-at-law of the contracting party ; in the present case (Bramhall v. Hall), there was a subsequent effectual execution, againt which the court refused to interfere in behalf of one whose equity, as arising from the marriage contract, was in no respect superior to that of the per- sons claiming under the subsequent valid execution (u). Now the case of Bramhall v. Hall, seems to stand thus : 1 . An agreement previous to marriage that the wife should have power to appoint her estate by deed or will. 2. A regular appointment, that is, a conveyance by virtue of her power and authority in favour of her natural son and his wife, with remainders over. 3. A conveyance by herself and her husband by fine to uses in favour of herself and her husband, and partly to some of the uses in the first appointment. And Lord North- ington denied relief to the widow of the natural son, because it did not appear that she was anything more than a mere volunteer. The defect likewise was prayed to be supplied against those who claimed under a subse- quent effectual execution of the power and legal convey- ance of the estate, a case much less favourable than if it had been against the heir only of the grantors. But even 'it) Mr. Eden's n. to Bramhall v. Hall, 2 Ed. 224-. lU'-i OF THE EXECUTION OF POWERS even against those lie was of opinion the plaintiff could have no relief. He knew of no case where a defective execution of a power had been supplied in equity in favour of a natural son, to whom no meritorious consi- deration could arise. Two distinct questions appear to be confounded in these observations. The first was, Were the articles, although resting infieri, such as equity would enforce ? That point was settled by Wright and Cadogan : the estate was bound by the articles. The power therefore was a valid although an equitable one, and could be enforced against the legal estate. The second question was, Was the power well executed by the first deed ? It clearly was. No consideration was necessary in the appointee, for there was no defect in the appointment, the estates were simply equitable, but they were as binding on the legal estate as the power itself was. If this be so, then the second deed and the fine, though they carried the legal estate, could not prevail over the first appointment in equity, for the husband was not at liberty to break through the marriage articles without his wife's concur- rence under her power, and she could not concur, as she had already fully executed her power without reserving a power of revocation. The persons who claimed under the deed and fine do not appear to have had any higher equity than the first appointee, and if they had, yet as they took with notice of that appointment, they were in every view of the case bound by it. 9. To the last edition of Ambler, by Mr. Blunt, a report of this case lias been added from Serjeant Hill's MSS., who, it appears, made the following observations on the case. This case would have been clearly right had it arose on a covenant to stand seised. Ch. Prec. 475; but vide 1 P. Wms. 149, by which it seems that the lease and release was a good execution of the power, and BY MARRIED WOMEN. 1-9*3 and if so, it seems, by Salk. 678, that the use would not result at law ; but qucere, et vid. 6, MS. as to equitable trust ; but as there was a fine and deed, declaring the uses in favour of the bastard [qu. husband], it seems he had a clear title. This note perhaps requires explanation. It does not touch the question under consideration. The learned Serjeant was considering whether the first appointee took the legal estate : he appears to have thought that the lease and release were a good execution of the power, as regarded the nature of the instrument, and that point is clear. He appears then to have been considering whether, assuming the estates limited by the lease and release to be bad, the use would result to the donee of the power, the releasor ; and referring to Shortridge v. Lamplugh, he said not, but queried the point as to equitable trust. This view of the case appears to have been erroneous. There was no question of resulting use at law or in equity. The appointment was an equit- able one, and if it were bad, the power would still have- remained in the wife capable of being re-executed- However, he concludes that as there was a fine and deed, declaring the uses in favour of another, he had a clear title. And so he had at law, but whether or not he was bound to make good the first appointment, was the question Lord Northington was called upon to decide. 10. Lord Redesdale, in speaking of these cases, said the question was, whether a feme covert, not having ac- tually conveyed her estate, but having previous to her marriage entered into a contract to convey to certain uses, that contract (even so far as it was a stipulation for her own benefit) should be considered as binding against her own heirs, in the same manner as the contract of O any }<>4 OF THE EXECUTION OF POWERS any other person. A court of equity held, that her heir was bound as she was bound herself (a;). 11. But where the agreement is, that the wife may dispose of the estate by will, a will made before the mar- riage, although subsequently to the agreement, will be revoked by the marriage, unless expressly authorized by the articles to be made before marriage (?/) ; it will not however be inferred that the power was only to be exe- cuted in the event of the wife surviving the husband, from the circumstance that it was to be executed by will only, although a feme covert cannot make a proper will {z). A will of a feme covert made under a power, during the marriage, is of course not revoked by the death of her husband in her lifetime {a). 12. Mr. Powell queries whether marriage is a revoca- tion of the will of a woman made previously in execution of a power without an interest (b) ; and the distinction appears to be capable of being supported. 13. The position in the text, that the concurrence of the husband in the wife's appointment is in no case ne- cessary, has been questioned in an elaborate note to the case of Grange v. Tiving, by the editor of Bridgeman's Judgments. It is stated in that note, that the doctrine that a married woman may execute every kind of power, without the concurrence of her husband (Sugden on Powers, 155, 156, 3d edition), seems to require some qualification. Where the husband has an interest and the power is general, as in the case mentioned in Bridge- man's text, it does not appear to have been decided by any (x) 2 Scho. & Lef. 403. (z) Driver v. Thompson, 4 (y) Hodsden v. Lloyd, 2 Bro. Taunt. 294. C. C. 534-; Doe v. Staple, 2 Term (a) Monvan v. Thompson, 3 Rep. 684-. See particularly p. 697. Hagg. 239. (A) Vow. p. 91 n. BY MARRIED WOMEN. 195 any subsequent authority that the wife's sole act will bind that interest against his consent, unless the donor's intention to that effect can be inferred. It seems also to be essential to consider the effect of the execution of the power on the wife's own interest. The cases on the point may require further examination. In Daniel v. Upley, Latch, 39, and W. Jones, 137 ; Gibbons?;. Moul- ton, Finch 246 ; Bayley v. Warburton, 2 Com. 494 ; and Godolphin v. Godolphin, .1 Ves. 21, the powers seem to be simply collateral, or bare authorities, or the husband had no interest. In Churchill v. Dibben, and Wright v. Lord Cadogau, 2 Eden, 239, the powers were specially worded; and Burnet v. Mann, 1 Ves. 157, relies on Roscommon v. Fowke, 6 B. P. C. 161, which was a case of special power. In Harris v. Graham, 1 Ro. Ab. 329 ; Travel v. Travel, cited 2 Ves. 191, and reported by the name of Sclator v. Travel, 3 Viner, 427 ; Bayley v. War- burton, 2 Com. 494 ; Rich v. Beaumont, 3 B. P. C. 308 ; and Tomlinson v. Dighton, the consent of the husband was given. Lord Antrim v. Duke of Buckingham is so variously and so loosely noticed, 1 Ch. Ca. 18; 1 Sid. 101; 3 Salk. 276; 3 Freem. 168; 1 Abr. Eq. 343; Comyn Rep. 496 ; Harg. MSS. n. 174, fol. 57 ; that it is difficult to conclude upon what principle the decision against the lease was grounded. It does not appear to have been argued according to the suggestion of the Chief Baron ; and the reports which state that the power was reserved to be executed by the Duchess of Bucking- ham, " being sole," seem to be incorrect. Those words would probably have prevented dispute, except in favour of the asserted creditor ; but they are not to be found in the Register's Book. The case was of reversionary lands, in which the husband had no interest ; and it does not affect the present question ; nor does evidence appear o 2 to 10<> OF THE T.XVA TTIoN OF POWERS to have been read <>i' creditors being concerned : so that it only decides that a general power reserved to a woman of her own lands, but not in contemplation of marriage, cannot be exercised as against the remainder-man, even with the concurrence of her after-taken husband. The power must be considered a power in gross in the events which happened ; but if the Duchess had lived to acquire the actual possession of the land, it seems that it would have been a power appendant. The case, therefore, may be considered an authority against the doctrine said to be now settled, as to the acts of a feme covert, donee of such power, being valid. See the case from the Regis- ter's Book of the Court of Chancery in Appendix G. It is submitted, that subsequent decisions have not contra- dicted this inference, and that the positions in the trea- tise alluded to (Sugden on Powers, c. 3, s. 1,) are laid down too widely. It seems to be material to consider, whether the donor of the power intended the wife to exercise it, notwithstanding coverture ; and in that re- spect the facts of the marriage, being had, or contem- plated at the time of the donation, are perhaps indicia of intention. If no such intention can be shown, the consent of the husband, or other parties respectively in- terested, either expressed or implied, seems to be essen- tial to the due execution of powers, when not mere authorities or simply collateral. 14. Thus far the editor. In the case of Grange v. Tiving (c), to which his note is appended, Bridgeman, C. J., held that a married woman, although an infant, might, under a general power of revocation and new appointment to the settlor and the heirs of his body (she being the heir of his body), revoke the old uses, but could not as an infant make any appointment, except to herself, and (c) Bridg. by Ban. 107. BY MARRIED WOMEN. 197 and then she. would be in of the old use, or in other words, the appointment would be inoperative. But he held that if a conveyance be to the use of J. S. and the heirs of his body, with a power for him or the heirs of his body to make leases, the heir of his body, being* a feme covert, without he?' husband cannot make such a lease whilst the disability continues ; for the general words, heir of his body, shall not be construed to alter the rule or reason of the law, but must be understood of such an heir of his body who hath by law reason and will to do such an act; which however, we may observe, is rather a reason why it should not be executed at all during the disability, than a ground for making it valid, if executed with the husband's concurrence ; and the observation applies to a class and not to an individual. The C. J. took a distinction which, it is conceived, cannot be sup- ported. He said Daniel and Ubby's case was a devise to his wife, to dispose at her pleasure, and to give it one of her sons, which she pleaseth ; she marries again and then conveyed it to a younger son. The Judges differed whether she had only an interest for life and an authority to give it to one of her sons in fee, or an interest in fee, with a condition if she do alien, she shall alien to one of her sons. But they did all agree that this conveyance by her, though under coverture, to her younger son, was good ; for if it were a power, the coverture did not disable it, and if it were a condition, it was a condition annexed and depending upon her power to alien, for she was not compellable to alien, and in neither of the cases was her coverture by law an impediment to her. But this case of Daniel and Ubby, though much pressed as full in the case, yet came not home, he said, to their case ; for the feme covert who made the conveyance had therein a bare authority ; her son was wholly in by the devise of the father, not by any estate derived from her, for her own o 3 estate 198 OF THE EXECUTION OF POWERS estate and interest ceased when she executed her power and disposed of it to her son, and the power was a power raised from the will of the devisor ; for by the equity of the statute of wills, though not by the express words, such a power may be created, and it is a devise of the testator himself within that statute. But in their case the C. J. said the power was raised by the statute of uses, and if it were reserved upon a feoffment, or other conveyance which works by transmutation of possession, the power would have its efficacy and vigour from the estate of the feoffees which the feoffor had antecedent to his feoffment to uses ; and therefore if Daniel and Ubby's case had been not by a devise but by a feoffment, to the use of himself for life, and after to the use of his wife for life, or immediately to the use of a feme sole for life, with power for her to dispose of the fee if she take a husband, whether she may during the coverture dispose of the estate deserves consideration, notwith- standing the resolution in that case. He then reasoned the case upon coverture in like manner as upon infancy, to which our attention will shortly be called. But he was of opinion, that if an infant, to whom a general power of making leases is given be a feme sole, and she take a husband and then make a lease, that lease now during her coverture is avoidable, for general words shall not solve that incapacity which she fell under after the power raised. He therefore conceived that the heir in his case being of age of discretion, though a feme covert and an infant, might execute this power of revocation of the old uses ; for that it was apparently and necessarily, in the eye of the law, for her advantage to revoke the former uses, for by such revocation the estate settled in herself as heir, and it was a prejudice to her not to be able to revoke. So the reason of the common law re- specting the prejudices or advantages of infants or femes covert BY MARRIED WOMEN. 199 covert in matter of interest extended to their case. But he held that she could not limit any use to her husband or any other stranger during her minority. He said that another objection was made, that this revocation, though it be said to be by the consent of the husband, yet he is no party to it, and she can do nothing without her hus- band's consent, and the alleging in the writing that her husband consents is not sufficient. He answered, if the husband's consent were requisite, the alleging it in her writing were not sufficient ; but that point was ruled in Daniel and Ubby's case, that the conveyance by the wife alone without her husband was good, and if the husband's consent be also to it, as it makes not the case the better, so it makes it nothing the worse. He con- cluded, that upon what had been said it appeared that this revocation arose out of her father's conveyance. She was but an instrument in it ; the act indeed was personal and inseparable, to be done by herself ; but her personal defects by coverture or infancy could not suspend the doing of it. 15. This case, independently of the current of later opinions, cannot be depended on. It draws a distinction between powers in wills not operating under the statute of uses, and powers in deeds deriving their effect from that statute. But the real question is not, how by law they operate — out of what seisin or estate they take effect — but whether the donor intended that the power should be exercised notwithstanding the marriage, and whether the married woman has legal capacity to exe- cute it. The former is presumed, if not otherwise de- clared, and the latter is established in law. To require her husband's consent is to add a collateral circumstance, not required by the power itself; and to examine whe- ther the act is for her benefit, and if it is, to hold that her husband's consent is not necessaay, is to destroy the o 4 supposed 200 OF THE EXECUTION OF POWERS supposed rule, tor the husband's consent should be re- quired rather to proteet his interests in his marital right than hers. In many cases it would depend upon ever- vaxying circumstances, whether a given exercise of the power was for her benefit or not. In Daniel and Upley's case, the act clearly was not for the married woman's benefit, and it affected the husband's rights, and yet her act without her husband's consent was held valid, and that case is incapable of being distinguished from the general case upon solid grounds. 10. In regard to the editor's note : — The first position in it cannot be maintained, for Daniel and Upley was not a power simply collateral or bare authority, and the husband had an interest ; for until the wife exercised the power, she had at least an estate for life ; nor was the power in Gibbons v. Moulton, (Finch, 346,) a bare au- thority or power simply collateral; for Margaret, to whom the power was given to continue the annuity, took it herself pur autre vie. Bay ley v. Warburton was a power of leasing to a woman tenant for life ; and, therefore, the husband had an interest, and the power was not a bare authority or simply collateral. Godolphin v. Go- dolphin, Lord Hardwicke said, was improperly called a power, for being a direction to a person who had the fee, it was rather a trust. In Churchill v. Dibben, it now appears that one of the powers was to be executed, whether the woman should be covert or sole (d) ; the other appears to have been a common power to appoint a sum of money by deed or will ; but it was a power created by a marriage settle- ment. So was Wright v. Lord Cadogan, and in such cases, of course, where the intention is that the power may be executed during the coverture, it would not be possible ( -2 21*2 TRUSTS IOH SEPARATE USE. engagements, power or control of any such husband ;" the question was, whether the niece could make a sweeping appointment. The able counsel for the de- fendant gave up the point without argument ; and it was accordingly decreed that an absolute sale by her was valid. In a cisc, before Sir John Leach, Vice-Chancellor, he considered Brown v. Like not to be an authority, as the point was not argued ; and he was of opinion, that in a similar case the wife had not a sweeping power of ap- pointment ; but no judgment was delivered, and Lord Chancellor Eldon expressed a clear opinion in favour of the wife's right in such cases to appoint the whole fund. The point afterwards came before Sir John Leach, in the case of Acton v. White (0), and it may now be con- sidered that express words of restriction are necessary to prevent the right of alienation. In that case the trust was for the separate use of the testator's wife for life in the usual way (I). And it was declared that the rents and interest should be paid, as the same should become due, into her hands, and not otherwise ; and that her receipt alone for what should be actually paid into her own proper hands should be a good discharge for the same ; and the Vice-Chancellor said, that it was too late to contend that a lady is restrained from the power of alienating her life interest, because it is given to her sole and separate use, and is to be paid into her own proper hands, and upon her receipt alone. The contrary is settled by repeated authorities. The construction given to the expressions in question is, that they are intended only to exclude the marital claims of any present or after- taken (0) 1 Sim. & Stu. 429. See Major v. Lansley, 2 Kuss. & Myl. 355. (I) Even an express restriction against alienation would now in such a case be deemed invalid, as we have already seen. OF THE EXECUTION OF POWERS BY INFANTS. 213 after-taken husband, and not to control that right of disposition which is incident to property. 26. 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 whether it was not necessary that the wife's consent in court should be taken ( p). But, unquestionably, the appointment is valid without any consent ; appointments are daily made to purchasers, unattended by any other solemnities than those required by the power (q), and it has frequently been decided upon petitions, that the wife need not appear and consent. (p) See 8 Ves. jun. 181,182. (y) Sturgis v. Corp, 1 3 Ves. jun. 1 90. SECTION II. OF THE EXECUTION OF POWERS BY INFANTS. 1. May execute authorities and poxvers simply collateral. 4. But not a power appendant or in gross. 5. Grange v. Tiving : Bridge- man s opinion. 6. May exercise a poiver over per- sonalty. 7. Powers by statute to grant leases. 1. An infant cannot at common law alien his estate unless by force of a custom ; but he, like a feme covert, may at common law do any act where he is a mere in- strument, or conduit pipe, and his interest is not con- cerned (a). Upon the same principle, it would seem to follow that an infant may execute a power simply col- lateral, deriving its effect from the statute of uses. 2. Dyer, (a) See 3 Atk. 710 ; Bridg. by Ban. P 3 '214 OF THE EXECUTION OF POWERS BY INFANTS, -2. Dyer, in his reading on the statute of wills, says, that if a man makes his will, and wills that J. S., who is within age, shall have the disposition of his land, that is good. The same law is where a woman covert hath such authority. S. And in Grange v. living (/>), Bridgeman, C. J., laid it down that in the ease of a hare power or authority, where an infant or feme covert is used but as an instru- ment or conduit pipe by another who hath no such disability, though upon the act an alteration or trans- ferring of an estate do follow, yet the law looks upon him from whom that power or authority is derived, not upon the weakness of the person acting by it, and there- fore an infant may, as an attorney, give livery upon a feoffment ; so may a feme covert, though it be to her own husband ; so if cestui que use, before the statute, desired that his executors should sell his land, a feme covert, or infant executor, so he be of age to be exe- cutor, may sell his land, and if he devise that his wife shall sell his land, though she after take a husband, and so hath altered her condition, she may sell the land, and she may sell it to her husband ; for in these cases the wife or infant were but instruments, the estate moved from him, and it shall be said the act of the devisor, or him who gave this authority. This was upon the statute of wills. He then distinguished powers raised by the statute of uses, but held that a bare colla- teral power was like to an authority at common law. If A make a conveyance to uses, with power to B to revoke, who had nothing to do with the land as owner, nor hath anything in it by the limitation of the uses, this power is collateral to the estate in the land, and B, whether infant or feme covert, might revoke, as he con- ceived ; (b) 13ridg. 107, OF THE EXECUTION OF POWERS BY INFANTS. 215 ceived ; and he thought the law was the same if it were a collateral power to B, or his heirs, who had nothing to do with the land, to revoke by writing under his or their hands. The heir, though he had been a disseisor, and made a feoffment, or had released, or though he were an infant, might revoke, because it was a bare power to be executed by the heir, not resulting from an interest in him or his ancestor, or tending to prejudice him in interest. 4. And it has been thought that an infant may exe- cute even powers appendant and in gross (I). The case of Hollingshead v. Hollingshead (c) is, as reported, an authority that way. An infant, tenant for life, with a power of jointuring, upon his marriage covenanted to settle lands on his wife, and afterwards died without having made any jointure, and equity made good the jointure, which, as the facts are stated, could only be on the principle that the infant had a disposing power. But Lord Alvanley, when Master of the Rolls, seemed to think that the infant had done some act after he came of age to confirm the jointure (d). And in a case at the Rolls in the year 1738, the Master of the Rolls said, that the case of Hollingshead v. Hollingshead was an idle case, and not law (e) (II). In the great case of Hearle v. Greenbank (c) 2 P. Wms. 229. 1 Stra. (e) Colton v. Hoskins, Rolls, 601, Gilb. Eq. Rep. 5 68. 4 Bro. 21 March 1738. 16 Vin. Abr. C. C. 466, cited ; see Lady Hooke 486, pi. 3 ; and see Lord Kilmurry v. Grove, 5 Vin. Abr. 293, pi. 40. v. Dr. Grey, 2 P. Wms. 67 1 , cited ; (d) See 4 Bro. C. C. 466. explained in 3 Atk. 7 1 3. (I) An infant may also execute a power coupled with an interest, if his infancy be dispensed with ; or if, from the nature of the power, it be evident that it was in the contemplation of the author of the power that it should be exercised during minority. 1 Prest. Abs. 326. (II) 1 have not been able to find any case on this point in Reg. Lib. The point probably arose incidentally in a case of Colton and New- land, which appears from the registrar's book to have been before the Master of the Rolls, in Hilary Term 17 38. 216 OF THE EXECUTION OF POWERS BY INFANTS. v. Greenbank (J), both the counsel and the court said re- peatedly, that there was no case in which it had been decided that an infant could execute a power appendant or in gross. Lord Hardwicke said, that the applying for several private acts of parliament to enable infants to execute powers given to them, showed the sense of man- kind in that respect ; and he held, decidedly, that a power to a feme covert, an infant, to appoint an estate, notwithstanding her coverture, did not authorize her to appoint the estate during her infancy, as it was a power to be exercised over her own inheritance. Lord Hard- wicke, in this case, showed not only that the power could not be legally executed during the donee's in- fancy, but that the testator did not intend that it should be, as he gave it expressly during coverture, but not during infancy, and expressio unins est exclusio alterius. From this it has been inferred, that Lord Hardwicke was of opinion that such a power might, by express words, be given during infanc}^ ; but it is manifest, that lie merely intended to show, that, even if such was the doctrine, it would not apply to the case before him. It would be a bold decision, that an infant may have a power of disposition over an estate through the medium of the statute of uses. Before the statute, it is clear that an infant could not alien a use limited to him, that is, could not direct his trustees to convey the estate to a third person. In that respect equity followed the law. Now the statute only operates upon what were uses at the time it passed. A power not simply collateral is a beneficial right to direct the trustee to convey the estate to whom you shall appoint. This direction an infant cannot give by reason of his non-age. Therefore, the appointee never gains a use, or equitable right, upon which (/) 3 Atk. OJj ; 1 Ves. 29S. OF THE EXECUTION OF POWERS BY INFANTS. 217 which the statute can operate. The law is already carried to its utmost limit in the power given to femes covert, and the disability of an infant is much stronger than that of a married woman ; and a married woman, before the statute, might have directed the use, if em- powered to do so. In a very recent case (g), Sir John Leach held at the Rolls, that an infant female had no disposing power over personal estate given to her sepa- rate use, although a settlement of it was made by the direction of the court. He said, that by the rule of law she had no power of disposition during her minority, and the court had, he thought, no jurisdiction to give her such power ; and he was not aware that any case was to be found in which the court had attempted to ex- ercise such a jurisdiction. 5. It is not till recently that the case of Grange v. Grange v. Tiving, before Lord C. J. Bridgeman, was known to the profession (/i). A settlement was made by a covenant to stand seised to the use of the settlor for life, remain- der to his wife in fee, with a power for him, or any of the heirs of his body, to revoke the uses and limit new ones. The settlor died, leaving an only daughter, and she, whilst an infant and married, exercised the power of revoking the use to the wife, and limiting the fee to herself. The C. J. held, that the two powers to revoke and limit new uses were distinct powers, and that she might revoke, notwithstanding her coverture and in- fancy, but could not, during her infancy, exercise the power of limiting new uses. He said, that if a man make a feoffment to the immediate use of J. S. for his life, who is then nineteen or twenty years old, and so of age of discretion, or to the use of Alice Stile, who is then (g~) Simson v. Jones, 2 Russ. (A) Bridg. 107, by Ban. & Myl. 365. -16 OF THE EXECUTION OF POWERS BY INFANTS. then a feme eovert, with power to make leases for three lives, &c, he would not determine whether a lease ac- cording to that power, executed by that infant, be good or not ; for without all doubt it might have been so limited, by express words of the power, " that he or she might make such leases whether he or she were within age or of full age," and then it had clearly been good : for if he who was owner of the estate had no disability upon him, he might make use of any hand, how weak soever, to reach out that estate. But the question will be, in that case, whether he who made that conveyance, by naming the person whom he then knew to be an infant, and giving an immediate estate and an inde- pendent power to make leases without restriction in point of time, did not intend, that notwithstanding that incapacity, the infant should make such leases, and so might implicitly intend what he might have expressed, that they should be good leases, whether made under that disability or not. If I make a conveyance to the use of myself for life, remainder to my first son to be begotten, with a power of making leases to my- self, and after to my son when he comes to be in possession if I die, my son at the age of twenty years, yet he held, that he could not execute this power of leasing till he came to twenty-one. He then com- pared powers of revocation to conditions, and quoted the cases upon conditions upon which he relied. He thought such a condition upon a feoffment, " that if he, or the heir of his body, signed, sealed and de- livered" such a writing, then the feoffment should be void, might be performed by the heirs of his body, not- withstanding infancy or coverture, for though the sign- ing, sealing and delivering were acts individual and inseparable from the person, yet they were but external, corporeal and mechanic acts. There was nothing re- quired OF THE EXECUTION OF POWERS BY INFANTS. 219 quired but the thing done, nothing, in the performance of the condition, that of itself required any other con- currence of judgment but such as was requisite to the natural efficiency of the act, as in the case if the con- ditions were if he in person tendered a ring, though the act were personal, yet nothing more of skill or un- derstanding was required to it than what was necessary to the effecting that act, that is, the tender of the ring. But if an act of judgment was required, an infant could not, he thought, revoke. He then relied upon the general intent of the settlor ; for if an infant cannot re- voke, the words and intent are not performed, " that any heir of his body may revoke." Probably no heir of the body may revoke ; for the heir of the body may, for several successions, be a daughter, and those daughters be married before twenty-one ; then, notwithstanding this power, a stranger shall hold the land, and so she that was an infant shall prejudice herself irrecoverably by an act by her during her infancy. The like may be the mischief if the heir of the body were a son : if he cannot revoke during his minority, perhaps he can never revoke, for he may die during his minority, and leave a son or daughter behind. But he was of opinion, that she could not exercise the power of appointing the estate to her own prejudice. 6. Bridgeman's distinction, that a power of revoca- tion and new appointment may be executed by an in- fant to the extent of the revocation, though not further, would probably not be followed at this day. His reason- ing is not satisfactory, either with reference to the capa- city of the infant, the donee, or the intention of the donor. His opinion M'as, that an infant may execute a power appendant, but he does not discuss the real question, viz. whether such a power is not in the nature of property, and therefore incapable of being exercised by 220 OF THE EXECUTION OF POWERS BY INFANTS. by an infant. The safer and better opinion is, follow- ing the authority of the Master of the Rolls in Colton v. Hoskins, Lord Hardwicke and Lord Alvanley, that an infant cannot exercise a power over real estate un- less it be a power simply collateral ; but as to personalty, clearly he may exercise a power over that at the age at which, by law, he may dispose of personalty to which he is absolutely entitled (i). 7. We shall have occasion, in another place, to notice the powers given by act of parliament to infants to grant leases of their estates (A). (i) Hcarle v. Greenbank, ubi post eh. 5. For powers to infants SU p, as trustees or mortgagees, see (&) 1 W. 4, C. 05, ss. 16, 17, 1 W. 4, c. 60. OF THE DELEGATION OF POWERS. 221 CHAPTER V. OF THE TRANSFER OF POWERS. SECTION I. OF THE TRANSFER OR DELEGATION BY THE ACT OF THE DONEE. 1. Particular power cannot be ex- ecuted by attorney. 2. Nor be delegated. \ Where a deed of appoint- ment may be executed by attorney. 4. Original power to assigns. 7 '■ Delegation void, if other good uses appointed. 1. IN considering this branch of our subject, we may inquire, 1st, Whether a power is transferable by the act of the donee of the power ; and 2dly, in what cases it is transferred or executed by force of particular 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 a lease by letter of attorney by force of his power (a), because it is not a lease of the land, but a declaration of the prior use ; and the lessee comes in by the original agreement under the first settlement. The power is in such case personal to the owner of the land, for it refers to the first settlement (b). 2. So, wherever a power is given, whether over real or personal [a) Lady Gresham's case, be- fore 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. Mo- hun, 2 Vera. 542. (b) See Palm. 43G. 222 OF THE DELEGATION OF POWERS. personal estate, and whether the execution of it will con- fer the legal or only the equitable right on the appointee, if the power repose a personal trust and confidence in the donee of it, to exercise his own judgment and dis- cretion, he cannot refer the power to the execution of another, for delegatus non potest delegare. Therefore, where a power of sale is given to trustees or executors they cannot sell by attorney (c). 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 considered as a power of attorney, which could be executed only by the hus- band, to whom it was solely confined, and was not in its nature transmissible or delegatory to a third person (d). Again, where personal estate was given to such charita- ble use as A should appoint ; and he directed the money to be applied as B should appoint, Lord Hard- wicke held the delegation void (e). So, where a testa- tor gave his wife a power to appoint personalty amongst their children, and she delegated this power by her will to others, Sir Thomas Clarke determined that the dele- gation was void (f) ; and this is now a settled point. On the same ground, a person whose consent is made requi- site to the due execution of a power, cannot authorize another as his attorney to consent to any execution of ^ &). 3. It is frequently contended in practice, that a donee of (c) Combes's case, 9 Rep. 75b. (/) Alexander v. Alexander, (d) Ingram v. Ingram, 2 Atk. 2 Ves. 640 ; and see Bristow v. 8S ; and see Hamilton v. Royse, Warde, 2 Ves. jun. 336. 2 Scho. & Lef. 330. («■) Hawkins v. Kemp, 3 East, (e) Attorney-general v. Berry- 410. See Attorney-General v. man, 2 Yes. 643, cited; and see Scott, 1 Ves. 413. Doyley y. Attorney-General, 4 Vin. Abr. 483, pi. 16. OF THE DELEGATION OF POWERS. '22'.\ of a power cannot execute a deed of appointment by attorney. But the Cases by no means authorize this position. They merely establish that the donee cannot delegate the confidence and discretion reposed in him to another. Where the deed of appointment is actually prepared, or the donee points out the precise appoint- ment which he is desirous should be made, there no con- fidence, no discretion, is delegated. The appointment is in every respect an exercise of his own judgment ; and there cannot be any reason why he should not be permitted to execute the deed of appointment by attor- ney. The contrary doctrine would lead to great incon- venience. Where, however, a particular mode of exe- cution is required, it would be difficult to support an execution by attorney. 4. Here we must be careful to distinguish cases where the power is originally authorized to be executed by the donee of the power and his assigns ; for in those cases where the power is annexed to an interest in the donee, it will pass with it to any person who comes to the estate under him, although there are twenty mesne assignments ; and whether the claimant is an assignee in fact, or an assignee in law, as an heir or executor (h). In like manner the donee of a power not annexed to an interest may delegate the power by virtue of an express authority in the deed by which it was created (i). But as we shall see more fully in another place, in a case, where the trust was to dispose of the property unto such of the relations and kindred of the testator, in such manner, &c. as his executors should think proper, leaving it to the discretion of them, and the heirs, (Ji) How v. Whitfield, 1 Ventr. Day, 13 East, 118. 338, 339 ; I Freem. 470. 2 Jo. (i) See Palliser v. Old, Bunb. 110; 2 Show. 57. See Coxe v. 160. '224 OF THE DELEGATION OF POWERS. heir-, executors, and administrators of the survivor of them, the trustees died, and the survivor devised all the trust estates to A and B, and made them executors, as to the personal part of the property ; it was held that they could not execute the power (/). 5. Where the power is tantamount to an ownership, and does not involve any confidence or personal judg- ment, and no act personal to the donee is required to be performed, it may be executed by attorney in the same manner as a fee-simple may be conveyed by attorney. Thus, when the statute of 1 Rich. in. gave cestui que use power to dispose of the legal estate, it was determined that he might execute his power by attorney (in). It appears to be on the same ground, that where an estate is limited generally to such uses as a man shall appoint, he may limit it to such uses as another shall appoint. The power is equivalent to the fee-simple, and is merely a species of ownership which involves in it no trust, or exercise of personal judgment. The consideration of this point will be resumed in a future page (ii). In Sergison v. Sealy (o), a woman having a power to appoint a sum of money to be raised out of an estate by her marriage articles, covenanted and granted that it should be lawful for her husband to raise the sum by any ways or means that she herself was entitled to raise the same, and to dispose of the same as he should think fit. This was said to be only a delegation of her power to her husband, which would be void. But Lord Hardwicke held that it was not a bare delegation, for though (1) Cole v. Wade, loVes. jun. Arthur, 2 Mod. 317; and Combes's 27. case, 9 Rep. 75 b. (m) Anon. Dy. 288 a, pi. 30; (71) Vide infra, ch. 6, sect. 1. and Bishop of London v. Kellet, (o) Mod. 390. cited ibid. ; and see Warren v. OF THE TRANSFER OF POWERS. though it was not formally done, yet it amounted to a grant of the money to the husband, and if it had been a grant it would have amounted to an execution of the power, and the covenant in equity was a good execution. 7. Where a power which cannot be transferred is delegated, and estates are limited over in default of any appointment by the person to whom the power is wrong- fully delegated, the delegation is simply void, and the estates limited over take effect immediately (p). (p) Ingram r. Ingram, 2 Atk. 88, vide infra. 225 SECTION II. OF THE TRANSFER OR DELEGATION BY ACTS OF PARLIAMENT AND THE ACT OF LAW. 1 . Bejiefit of conditions belonging to attainted persons rested in Crown. 2. Not forfeited if annexed to person or mind of donee. 3. Right to tender, in Crown. 10. May be performed by com- mission. 1 1 . Must be executed during do- o nees life. 12. Power of revocation in King's debtor, for benefit qfCroxvn. 13. Or in a subject remaining abroad in contempt of the prerogative. 14. Poivers in insolvents given to assignees. 15. Powers in bankrupts given to assignees. 17. Powers in lunatics given to committees. 18. Powers by statute to incapa- citated persons. 1. By the common law, the King was not entitled to conditions vested in persons attainted, nor were they forfeited by any act in which they were not expressly Q named, ■2-lii OF THE TRANSFER OF POWERS named, lor by the general words of all hereditaments they would not pass, although clearly hereditaments (a). But by the 33 II. \ in. c. 20.(1) the benefit of rights, entries, and conditions, was expressly given to the ( 'row n : that is, the land itself was not given, but only the benefit of the condition, by which the land might be reduced into the possession of the party attainted had he not been attainted (U). 2. The distinctions established upon this legislative provision appear to be, that where the power is insepa- rably annexed to the person or mind of the donee, it will not be forfeited to the Crown by his attainder ; but where the thing to be done is a mere ministerial or formal act, not inseparably annexed to the person or mind of the donee, but which may be performed by one person as well as another, the power will go to the Crown. 3. Thus, in Dacre's case, where a grant was revo- cable, upon a mere tender of 5 s. it was resolved that such a condition was given to the King (c). But if the power is required to be executed under the proper hand, or, which is the same, under the hand of the donee, (a) See Marquis of Winchester's 2 Hawk. P. C. 453, s. 20. case, 3 Rep. 1. (c) 17 Eliz. adj. cited by Pop- (b) See 1 Hale, P. C.244, s. 4 ; ham, Leo. \(>9. (I) By the 7 th Ann. c. 21, after the decease of the Pretender, no attainder for treason was to prejudice the right and title of any person, other than the right of the offender during his life. [For the history of this statute see York on Forfeiture, and 4 Black. Com. 384.] By the 17th Geo. II. c. 39, the operation of the act of Anne was suspended till the death of the Pretender's sons. If these acts had ever operated they might have occasioned some very nice questions on the doctrine discussed in the text. But by the 30th Geo. III. c. 93, the act of Anne was wholly repealed. TO THE CROWN. 227 donee (d),or any other mode is pointed out to the perform- ance of which the mind or hand of the donee himself is required, the power is not forfeited by his attainder. The difficulty is to apply this rule to the cases which arise. 4. In Hard win and Warner (e), a power of revocation was given to Sir William Shelley, upon tender to the feoffees of a gold ring, or a pair of gloves of the value of 122. the I 2th Car. 2, c. 20. TO THE CROWN. was outlawed, and the Crown sought to compel the trustees in the Exchequer to execute the power of leasing as the Crown should direct. Price and Page, Barons, (hcesitantc Lord Chief Baron Bury, absente Mount-ague), were clearly of opinion that by making the lease for 09 years, the power was suspended, and that the donee had nothing left in him but a reversion during his life after 99 years, and the power of attorney was gone by the attainder ; and so the claim of the Crown was refused. 9. These cases, however, cease to be important at the present day, as questions of a similar nature never arise. Happily the nation is no longer rent by those intestine struggles which lead men of property to incur the guilt of treason. The practice of requiring a tender of money, gloves, &c, or the performance of any act which coidd, by the greatest stretch, be construed as not inseparably annexed to the mind or hand of the donee of the power, has been long since altogether dis- continued ; and it became usual to require the power to be executed by the donee, by writing under his hand, to which certain other solemnities were in general required ; and this is the mode in which powers are reserved at the present day. Now such powers, as we have seen, are not forfeited, under the existing laws, by 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 in the worst of times. 10. 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 letters patent to per- form the act, and upon performance of it the old uses determine without office found (in). 11. But {m) Englefield's case, Hardvvin r. Warner, ubi sup. 231 232 OF THE TRANSFER (>!•' POWERS 11. But even where the benefit of the power is given to the King, it must of eourse be executed during the life of the original donee of the power, for with his death the power ceases. 12. Thus we have seen how tender the law is in these cases, and that powers annexed to the mind or hand of the 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 without 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 overflowing foun- tain of his beneficence and benevolence (n). 13. Where the donee of a power of revocation com- mits a contempt against the King's prerogative, the lands may be seized 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, requiring him to return into the realm, which he refused to do, 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 (o) (I). 14. In (n) Sir Edward Coke's case, port in Lane, 42, nom. Hex v. 2 Roll. 294; Godb. '289. Lord Nottingham, where other (o) Sir Robert Dudlie's case, points were raised. 2 Roll. 301, cited. See the ro- ll) That is, till the return of the person committing the contempt, IN INSOLVENTS. 23; 14. Iii the. Act 41 Geo. 3, c. 70, s. 2G, for the relief of Insolvent Debtors, after reciting that many persons who might be entitled to claim the benefit of the Act were seised and possessed of lands, tenements, and here- ditaments, to hold to such debtors for the term of their natural lives, with power of granting leases and taking fines, receiving small rents on such estates for one, two, or three lives in possession or reversion, or for some number of years determinable upon lives, or had powers over real or personal estate which such debtors could execute for their own advantage, it is enacted, that all the powers of leasing such hereditaments, and all other such powers as aforesaid, over real and personal estate, which were or should be vested in any such prisoner or prisoners as aforesaid, were thereby vested in the assignees of his estate, to be by such assignees executed for the benefit of all the creditors of such prisoners. And in the general Act (53 Geo. 3, c. 102,) the assignee of the insolvent's property is empowered to execute any power vested in or created for the use or benefit of such insolvent (p). And after reciting, that a prisoner who might be entitled to and claim the benefit of the said Act, might be seised and possessed, or entitled to lands, tenements or hereditaments, to hold to such prisoner for the term of his life, or other limited estate, with power of granting leases, or might have powers over real or personal estate which such prisoner could execute for his or her own advantage, and which said powers ought to be executed for the benefit of the creditors of such prisoner, in every such case all powers of leasing, and such (p) Sect. 18. when he is liable to fine and imprisonment. Sir William de Brit- taine's case, Dy. 128 b, pi. 61, cited. The Fugitive's case,Dy. 315 b. pi. 21 ; I Hawk. P. C. pa. 59, s. i. 234 OF THE TRANSFER OF POWERS such other powers as aforesaid, over real or personal estate, which arc vested in any such prisoner, are l>\ the Act vested in the assignee of the real and personal estate of such prisoner, to be by such assignee executed for the benefit of the creditors (jf). In the Act 1 Geo. 4, c. 119, s. 12, for the relief of insolvent dehtors, after reciting that many persons who might claim the benefit, or he brought within the ope- ration of the Act, were seised and possessed of lands, tenements and hereditaments, to hold for the term of their natural lives, with power of granting leases and taking fines, reserving small rents on such estate for one, two, or three lives in possession or reversion, or for some number of years determinable upon lives, or had powers over such real or personal estate which such prisoners could execute for their own advantage, and which said powers ought to be executed for the benefit of the creditors of such prisoner, it is enacted, that in every such case all and every the powers of leasing such lands, tenements and hereditaments, and all other such powers as aforesaid over such real or personal estates, which are or shall be vested in any such prisoner as aforesaid, shall and are thereby vested in the assignee or assignees of the real and personal estate of such pri- soner, by virtue of the said Act, so far as the prisoner could by law vest such power in any person to whom he might lawfully have conveyed such property, to be by such assignee or assignees executed for the benefit of all and every the creditors of such prisoner as aforesaid. 15. And here we must notice the case of a power of appointment vested in a bankrupt. The statute of 13th Elizabeth, c. 7, sect. 2, enables the commissioners to dispose of any estate, for such use, right or title as such offender (q) Sec. 20 ; and ice 5 1- Geo. 3, c. 23. IN BANKRUPTS. offender then shall have in the same, " which he may lawfully depart withal." And the statute of 21 Jac. 1, c. 19, sect. 1, directs the bankrupt laws 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, upon which declaration the statute of uses immediately operates. It is therefore clearly a use, interest, or right, which the bankrupt may lawfully depart withal ; and there is considerable ground to con- tend that the bargain and sale of the commissioners should have the same operation as a due execution of the power by the bankrupt whilst solvent would have had ; but Lord King is said to have held, that in the case of a tenant for life, with power to charge 100 I., the power was not such an interest as would pass to the assignees (r). And in a case where an estate was settled on the father for life, remainder to the son in fee, and a power was given to the father to raise 5,000 /. for his children, or for the benefit of creditors, or any other purpose, and the father became a bankrupt, it was held that the power did not pass (s). In a late case, where a bankrupt had a general power of appointment, it was not contended that the power was executed by the bar- gain and sale, but it was prayed that the bankrupt might execute the power in favour of the creditors. The bankrupt demurred, and Lord Eldon allowed the demurrer. His Lordship held, that he had no power to compel the execution by the bankrupt of the power (t). He (r) See 2 Ves. 3. in this case no appointment was (s) Assignees of Griffith v. Grif- necessary, the bankrupt was te- fith, cor. Chief Baron ; Carmar. nant for life, remainder to such 2d Sept. 1818. MS. See Jenney uses as he should appoint, re- V. Andrews, 6 Madd. 264. mainder to the heirs of his body. (t) Thorpe v. Goodall, 17 Ves. This remainder coalesced with jun. 388, Kio. l Rose. 10. But the life-estate sub modo, that is. l23(» OF THE TRANSFEB OF POWERS He was not called upon to say whether the power was executed by the bargain and sale; but his opinion appears to have been, that the power did not vest in the assignees; and upon a bill filed by the assignees against the purchaser in the same case, the Vice-Chan- eellor was of that opinion (w). The general point is put at rest by the 6th Geo. 4, c. 1(3, s. 77, which enacts that "all powers vested in any bankrupt which he might legally execute for his own benefit (except the right of nomination to any vacant ecclesiastical benefice) may be executed by the assignees for the benefit of the creditors, in such manner as the bankrupt might have executed the same. 16. The clause was properly confined to those powers which he might legally execute for his own benefit. It may become a question whether these words will extend to a power of leasing a settled estate, or other powers in a settlement, having for their object the general benefit of the estate; for the Act had in view only those powers which would confer property upon the assignees by an exercise of the power. Therefore a power of jointuring would not vest in the assignees ; for although it is a power which in a sense was for the bankrupt's benefit, as it would enable him to advance himself in marriage and provide for his wife, yet the exercise of it would confer no benefit on the assignees. Cases may occur in which a power may be held not to be exercisable by the assignees, although it may enable the bankrupt to vest actual property in his own representatives as part of his assets. I allude to a power in the bankrupt to appoint subject to the power, and con- the power; and so it has since sequently the bankrupt was te- been held. nant in tail. The bargain and (a) Thorp v. Frere, V. C, M. sale barred the estate-tail and re- T. 1 819. mainders over, and also destroyed IN LUNATICS. 237 appoint property by will; for, as was observed in an early case, such a power is personal : no other man can make my will (x). 17. In the 1 W. 4, c. 65, s. 23, in relation to the estates of lunatics, it is enacted, that where any person, being- lunatic, as in the Act is mentioned, is seised or possessed of freehold and copyhold estates, either for life or for some other estate, with power of granting leases and taking fines, reserving small rents on such leases for one, two, or three lives in possession or rever- sion, or for some number of years determinable upon lives, or for terms of years absolutely, such power of leasing, which is or shall be vested in such person being- lunatic, having a limited estate, only, shall and may be executed by the committee of the estate of such person, under the direction and order of the Lord Chancellor, &c. 18. It may be useful in this place to refer to the powers conferred by Acts of Parliament on incapacitated persons and tenants for life, &c. to convey, so as to give effect to a sale of a deceased person's estate, for payment of the debts to which it is liable (?/), or so as to give effect to a binding contract made by a testator in his lifetime, for sale of his estate (z) : And the powers for committees of lunatics, where the latter are trustees or mortgagees (a), and for infants, being trustees or mort- gagees, to convey the trust or mortgaged estates (b), and for infants and married women, and committees of lunatics, to surrender leases, and accept new ones for their own benefit (c), and for infants and femes covert, and (x) See I Ventr. 131, per Hale, (z) 1 W. 4, c. 60, s. 17. C J.; and see Jenney v. An- («) 1 W. 4, c. 60, s. 3, 4, 5. 13. drews, 6 Madd. 264. (6) 1 W. 4, c. 60, s. 6, 7. 13. (y) 1 W. 4. c. 47, s. 1 1, 12. (c) 1 W. 4, c. 65, s. 12, 13. 238 OF THE TRANSFER OF POWERS. and committees of lunatics, to accept surrenders and grant renewals of leases, by which their property is hound (Y7) ; and for infants to grant leases of their own property, (e), and like powers to committees of luna- tics^); and also powers to them to convey in pursuance of the lunatic's binding contracts (g). These do not properly belong to our subject, and therefore a simple reference to them must suffice. (d) 1 W. 4, c. 65, s. 16; post. (/) I W. 4, c. 6.5, s. 24. s. 19, 22 ; and 5 & W. 4, c. 17. (g) s. 27. (e) 1 W. 4, c. 65, s. 17. [ 239 ] CHAPTER VI. OF THE EXECUTION OF POWERS. WE now enter upon a large field of inquiry. I propose to consider, 1. The mode in which a power ought to be executed, particularly with reference to the statute of uses. 2. By what words and by what instruments it may be exercised, where the power is silent in that respect. 3. Where conditions or restrictions required or annexed to the execution of powers are duly com- plied with. 4. At what time a power may be executed, which will involve the consideration of partial execu- tions. 5. In what cases a power is well executed, where the donee has not an interest in the estate. 6. What is deemed an execution of a power where a man has both a power and an interest; and 7th and lastly, What qualifications may be annexed by persons executing powers. 240 OF THE EXECUTION OF POWERS, WITH SECTION I. OF THE EXECUTION OF POWERS, PARTICULARLY WITH REFERENCE TO THE STATUTE OF USES. 1. Appointment should be to uses at once. 2. Appointment by construction. 3. How to be framed. 4. Appointment and. release. 5. Limitations to bar dower. 6. Hoiv affected by late statute regulating dower. 7 . Appointment under general power to the appointment of another. Powers of revocation implied. Common law authorities. Appointments under them ope rate according to intention. 8. 10. 11. 12 ) Opinions upon their operation *> with the aid of the statute of '•*•] uses. 14. Statute does not operate upon the estate appointed, semble. 15. Special authority. 16. Letters of attorney. 17. Revocation and appointment by the same instrument. 19. Appointment passes only the donor s interest. 20. Notice to the trustee of the fund. 1. FIRST, then, we must bear in mind that a power is a mere right to limit a use Now the statute, as we have seen, executes only the first use, or, as it is usually expressed, a use upon a use is void. This rule there- fore renders it indispensably necessary to appoint im- mediately to the person intended to take, unless the parties are desirous that he shall not have the legal estate; for if 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 REFERENCE TO THE STATUTE OF USES. 241 in equity (a). To apply this point to practice, let us sup- pose an estate to stand limited to such uses as A shall appoint by deed, to be executed 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 (I) : Now this inden- ture witnesseth, That in consideration, &c. and pursuant to, and by force and virtue, and in exercise and execu- tion of the power or authority to him the said A for this purpose given or limited by the hereinbefore in part re- cited indenture, [the deed creating the power, which should always be recited], and of every or any other power or authority in any wise enabling him in this be- half, he the said A, doth by this present deed, by him sealed and delivered in the presence of and attested by the two credible persons whose names are intended to be hereupon indorsed, as witnesses attesting the sealing and delivery of these presents, by him the said A, direct, limit, and appoint, That all that [parcels and general words], shall henceforth remain and be to the use of such person or persons, &c. as B shall 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 hereafter 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 in- tended uses would be mere trusts in equity. 2. In Rich v. Beaumont (b), a question arose upon Rich ». , Beaumont. the (a) Doe v. Haddon, 4 Mann. (b) 3 Bro. P. C. 308. & Ryl. 118, (I) See a precedent of such an appointment at length, Appendix, No. 0. R 242 OF THE EXECUTION OF POWERS, WITH 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 gene- ral power of revocation and appointment, which she ex- ercised by will, and devised the estate to her son and husband, 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 will." 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 declared her intention to be, that the legal estate should remain in the trustees. And that if the will was construed to enure as a revoca- tion of the legal estate out of the trustees, rather than as a declaration of the trusts of that estate, the same would, by such construction, be made to enure contrary to the express words thereof, and contrary to the mani- fest 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 consequently 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 convey- ance 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 their opinion, " Whether the trusts limited by the will be uses executed, or trusts." It REFERENCE TO THE STATUTE OF USES. 243 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 trus- tees, to preserve contingent remainders, &c, a clause like that in the above will may well be holden to operate as an appointment to the trustees ; and then the persons beneficially entitled will take mere trust-estates ; but where, as in the above case, the effect of giving the legal estate to trustees, would merely be to make a conveyance from them necessary, the first appointment ought certainly to be deemed a limitation of the use, so as to carry the legal estate ; and the subsequent clause may be struck out as repugnant or superfluous : it is an immaterial circumstance that the legal estate was by the settlement vested in the trustees, for the simple exercise of the power would divest it out of them ; so that it required, in effect, an appointment for the purpose of leaving the legal estate in the trustees, after the beneficial interest was appointed to another under the power. 3. It will be collected from the precedent in a preced- ing page, 1st, that the deed executing the power should be expressed to be in exercise of it ; 2 dry, of every other authority enabling the donee in that behalf; and, 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 appointment embraces these three points ; the first clearly evinces the intention of the person executing the power, which is particularly necessary where he has an interest as well as a power ; the second guards against any misrecital of the deed creating the power, and in some cases has reached powers which have been understood to be ex- r 2 tinguished ; 244 OF THE EXECUTION OF POWERS, WITH tinguished ; and the third affords internal evidence of the ceremonies having been complied with. And, more- over, the attestation indorsed on a deed executing a power should always state precisely that the formalities were attended to. How far these circumstances are absolutely essential to the valid execution of the pow r er will appear hereafter (c). 4. Where a man has both a power and an interest, for example, a general power of appointment, with the fee, or any less estate in default of appointment, he is con- stantly made not only to exercise his power, but also to convey his interest. This may appear to be unnecessary, as the execution of the power divests the estates limited in default of its execution ; but it is resorted to 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 then, 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 ap- pointed, granted and released to A, to the uses, the courts will endeavour to construe the conveyance a re- lease, and to consider the words of appointment as mere surplusage, in order to effectuate the intention (d ). This, however, cannot be done where the conveying party has not the fee in default of appointment. 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, (c) As to the first and second, see post, s. 3. see post; s. 6 ; and as to the third, (rf) Vide infra, sect. C. REFERENCE TO THE FRAME OF THE DEED. 245 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 although it is usual not only to exercise the power, but also to convey the interest, yet even a purchaser would not be entitled to require a conveyance of the interest, limited in default of appointment, unless it could be conveyed by a simple deed. 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. 5. The usual limitation to bar dower was to such uses as the purchaser should appoint ; and in default of ap- pointment, to him for life, remainder to a trustee and his heirs during the life of the purchaser, in trust for him (I), remainder (I) Instead of limiting the estate to the trustee and his heirs, it is sometimes limited to him, his executors and administrators, it being un- derstood that executors or administrators may take as special occu- pants. Lord Hardvvicke always treated this point as clear ; Duke of Marlborough v. Lord Goldolphin, 2 Ves. 6] ; Williams v. Jekyll, 2 Ves. 63] ; Westfaling v. Westfaling, 3Atk. 460; 7 Ves. jun. 446, cited from Lord Hardvvicke's notes; and Lord Eldon has expressed the same opinion ; see Ripley v. Waterworth, 7 Ves. jun. 425. But in the case of Campbell v. Sandys, 1 Sch.andLef. 281, Lord Redesdale said, that the old authorities seemed the other way, and if the case were before him, he should feel great difficulty in determining according to the apparent opinion of Lord Hardwicke. Lord Redesdale, in support of his opinion, referred to two cases stated in 2 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 llolle as a determination, that if a lease be made of land to a man and his executors pur autur vie, the executor shall be special occupant, although it be a freehold. He also referred to Comyn's Digest, Estates, {V 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 W 3 cannot 240 OF THE EXECUTION OF POWERS, WITH remainder to the purchaser in fee. This limitation had two objects; the one to enable the purchaser, by an ex- ercise cannot take ; and Comyn also refers to the second case stated by Rolle, as an authority for this point. " That case," my Lord Redes- dale added, " which was long subsequent to the case in Dyer, is cer- tainly in conformity to the opinion of Comyn ; and according to Salter v. Butler, Moore, 664, Cro. Eliz. 901, Yelv. ; 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 satisfied with it." Now it is not too much to say, that no point is in practice con- sidered 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 occupancy, and the case of an incorporeal heredita- ment, as a rent, of which there cannot be any occupancy, having been confounded. Rolle seems to have drawn a just conclusion from the case in Dyer and Leonard. It appears to have been taken for granted in that case, that an executor might be a special occupant, but there the tenant pur autur lie had made a lease ; and the ques- tion was, whether the lessee should not be occupant. In the next case stated by Rolle, the determination was, that of a freehold rent 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 Rolle, 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 Rolle's last case ; but there the reason is, " be- cause 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 occupant. 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, his executors and assigns, so that he could not claim as an 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 Rolle, to show that an executor cannot be a special occupant of a rent, al- though REFERENCE TO THE FRAME OF THE DEED. 247 ercise of his power, to convey the estate without the concurrence of his trustee, and the other by interposing the limitation to the trustee, to prevent the fee from vesting in the purchaser in default of appointment, (for it was formerly doubted whether a right of dower attach- ing on the inheritance could be defeated by the execu- tion of the power) (e), and, at the same time, to leave no legal estate outstanding, when the object for which it was created had ceased to exist (/). When the owner sold, although it was clear that by virtue of his power he might convey the fee to the purchaser, yet I may say that it was almost the universal practice of the Profession, not only to make the vendor exercise his power, but also to make the vendor and his trustee convey their in- terests in default of appointment. Sometimes a diffi- culty (e) Vide infra. (f) See n. (I) to Gilb. on Uses, p. 321. though he seems to think that upon principle, an executor might be a special occupant of even a rent as well as an 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 Rolle's Abridgement 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 designed by the particular words in the grant to take as occupants ; and such designation will exclude the occupation of any other person, because the parties themselves, who originally had the possession, have filled it up by this appointment. But, he adds, that if a rent be granted to J. S. and his executors, during the life of B, by the death of J. 7 of a power, the donee will pass only the interest of the person creating it, and not any interest or franchise of his own ; as " if the tenant devise that the lord shall sell the land, and dieth, and the lord selleth it, the seignory remains" (b). 20. Where a fund, subject to a power, is vested in a trustee, notice of the execution of the power should be served upon him. If in the common case of a power to be executed by a deed or will, a regular appointment is produced to the trustee, and he pay the fund to the appointee, he cannot be compelled to pay it over again, although it appear that a regular prior appointment by deed was executed, unless he can be fixed with notice of the execution of the deed (c) (b) Co. Litt. 52 a. (c) SeeCothayu. Sydenham, 2 Bro. C. C. 391. SECTION II. OF THE WORDS AND INSTRUMENTS BY WHICH A POWER MAY BE EXECUTED. 1. Any words indicating intention 4. Or feoffment, lease and release, sufficient. fyc. 2. A recital. 5. Or will not attested by three 3. Where power is general, a writ- witnesses. ing unattested, sufficient. \ 6. Probate duty. 1. It may here be observed, that any words indi- cating an intention to exercise a power, will have that operation. In the case of Poulson v. Wellington (a), a widow of a freeman assigned 5-9ths of her late husband's personal estate in trust for her children, and her own 4-9ths to trustees for her separate use for life, and afterwards in trust for such purposes and for such persons as she should («) 2 P.Wms. +33. s 258 RECITAL AN EXECUTION should by deed, to be attested by two witnesses, appoint, and for want of such appointment, to her children by her first marriage ; but the husband which she should marry, on his surviving her, was to have 200 I. out of the 4-9ths. Afterwards, by a settlement on her second mar- riage, and attested by two witnesses, according to the power, reciting that she had before settled the children's 5-9ths in trust for them, and that in case she should make no appointment of her own 4-9ths, they would belong to her intended husband, she assigned her 4-9ths in trust for the intended husband during their joint lives, but she to have the management of it during the cover- ture, or by any writing duly attested, to appoint it over. She afterwards died in her second husband's lifetime. Lord Chancellor King, with much doubt, — because the husband was a purchaser of these 4-9ths, and it being recited in the last deed, that in case the wife died with- out making an appointment, the second husband would be entitled thereto, which though but a recital, yet showed the intention and agreement of the parties, and amounted to an [informal] appointment, and as no strict form was requisite to constitute such appointment, and since the latter deed varied the power reserved to the wife, the first deed requiring that it should be by writing attested by two witnesses, and yet by the latter deed the power of appointment reserved to the wife being by any writing duly attested, — decreed the second husband enti- tled to the 4-9ths, and that decree was affirmed in the House of Lords. 2. And where the instrument cannot operate as a direct appointment, yet if the intention is shown by a recital it will be supported as a good appointment in equity, if there is a sufficient consideration to enable the Court to act. Thus in Wilson v. Piggott (6), a money fund was set- (b) 2 Vcs jun. 351. Sec 2 Sim. 50S. tied, OF A POWER. 259 tied, after life-estates to the husband and wife, upon the children, as the husband and wife, or the survivor, should appoint, and in default of appointment, upon the. children equally. There were several children, and by the mar- riage settlement of one daughter, Sarah, it was recited that she was entitled to 1,000 Z., part of the fund, payable at the death of the father, and also to another sum, " both of which would belong to her husband," and the husband made a provision for his wife. Appointments were made to others of the children, but none to Sarah. Lord Alvanley said the question was, whether the recital in the settlement could be considered as a declaration that she should have 1,000/., part of this sum. It was con- tended that this was no positive appointment, that her father never declared she should have that sum, and never expressed such a purpose in the form which might be expected from a person executing a power ; but it was clear that where a party has such a power, and lays himself under an obligation, or demonstrates an intention to give a share to any child, the Court would enforce it, without attention to the mode in which it was given. In this settlement he declares her entitled to this sum, to which she could only be entitled by his appointment, and the husband makes a settlement in consideration of it. He could have compelled the father to execute a regular appointment. It is a covenant by the father ; and Coventry v. Coventry, and the cases of supplying a surrender in favour of any one child, prove that a child shall avail itself of the intention, whatever is the mode in which it is signified. Therefore that clause in the settlement of Sarah was an appointment to her. The recital in the settlement, we may observe, no doubt intended only to express Sarah's share in default of appointment, for there were four children entitled ; but as appointments had been made to some of the other s 2 children, 260 GENERAL POWER children, there was no mode in which Sarah could take a full fourth, except by an appointment, and the recital was treated as a contract with the husband that he should have the 1,00(>/., which was deemed a contract to exercise the power, for the reason already stated. Where the instrument in which the recital is contained is executed in the manner required by the power, and the intention is clear and the words sufficient, and par- ticularly where, as in Wilson v. Piggott, the interest is merely an equitable one in a personal fund, there is no good reason why the recital should not be held to operate as a direct valid appointment. We shall have occasion in another place to consider in what cases instruments operate as appointments where the power is not in words referred to, and what is deemed a sufficient indication of an intention to execute a power, distinguishing the cases where a man has a power only, and where he has an interest as well as a power (c). 3. Where a particular instrument is required — as a deed or will — the power cannot be legally exercised in any other manner. This will be fully discussed in the next section, when we come to treat of the compliance with conditions. But where a power is given generally, without defining the mode in which it must be executed, it may be exercised either by deed or will (I) ; 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 necessary that the power should be executed by deed, (c) Post, S.5&6. (I) In Gibbons v. Moulton, Finch, 34-G, a nuncupative will, before the statute of frauds, was held a valid execution of a power to charge an annuity on leasehold lands. MAY BE EXECUTED BY ANY INSTRUMENT. 2G1 deed, a simple note in writing, even unattested, would be a good execution of the power (d). 4. 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 feoffment (e), covenant to stand seised (f), or lease and release (g), or, whilst that mode of assurance remained, it might have been exercised by lease and release and fine (A). Mansfield, C. J. observed, that the difficulty in King v. Melling was that the cove- nant to stand seised was by a man who could not stand seised, because he was a tenant for life, whose estate ex- pired with his own life ; nevertheless it was held a good execution (i). But although all these modes are effec- tual, yet they are improper appointments. They do not operate as a feoffment, covenant to stand seised, lease and release, or fine ; but as an appointment of the estate, or direction or declaration of the use under the power. Therefore, if a power under the statute is, for instance, executed by lease and release, upon which uses are de- clared, 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. 5. Although where a power is not restrained to be executed 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 (d) Saunders v. Owen, 2 Salk. Wykham v. Wykham, I 1 East, 467 ; and see 3 East, 440. 458 ; 3 Taunt. 316. (e) Daniel v. Upley, Latch, 9, (g) Dyer v. Awsiter, 1 P. Wins. 39, 13 4; 1 Jo. 137. 165, cited, 10 Mod. 34, nom. Gier (f) Stapleton's case, cited by v. Osseter; Dighton v. Thorn- Hale, Chief Justice, 1 Ventr. 228; linson, 1 Com. 194; I P. Wins. Dame Hasting's case, Raym. 239 ; 1 49. 3 Keb. 511, cited, S. C. Right v. (h) Vide siipra. Thomas, 3 liurr. 1141 ; and sec (i) 3 Taunt. 335. 2G2 GENERAL POWER EXECUTED The cases cited for this position are Longford v. Eyre (A), and WagstafTv. Wagstaff(D ; but, in the last of these cases the trust was for A, his heirs and assigns, or to such person or persons as he or they should direct ; and Lord Macclesfield 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 eorum quae tacite insunt nihil operatur. And in the first of the above cases the power was expressly required to be exercised by " will" or " writing in the nature of a will," which words 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 with- out reference to any instrument, a will made in execu- tion of it must be treated as a proper will of real estate. It seems, indeed, once to have been holden, that if a power, although not required to be so, was executed by bargain and sale, the deed must be enrolled as a proper bargain and sale ; but Lord Chief Justice Hale was de- cidedly against this construction (in). His is certainly the better opinion. And, in regard to a will, it would be rather a refined distinction, that the power may be executed by a simple note in writing unattested ; 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 witness (n) ; and it would, therefore, be a great stretch to hold that three witnesses are necessary in the case under discussion. If a writing generally is required attested by two witnesses, a will so attested is a good execution of the power. It may (k) 1 P. Wras. 740. 239; 3 Keb. 511, 538; 1 Ventr. (/) 2 P. Wras, 23 8. 280, 291. ' m) Ingram v. Parker, Raym. («) Vide supra % ch. 3, sect. 1 BY WILL UNATTESTED. may be said truly that this is within the scope of the power, because a will is a writing, and two witnesses only were required ; but a will is equally so where no parti- cular mode of execution is required, and the case cannot be deemed weaker where no witness is required, than where less than three are rendered necessary. 6. It may here be observed, that where a personal fund is given by will, under a general power to appoint by deed or will, it has been decided that the probate duty attaches on the fund (0). (o) Palmer v. Whitmore, 5 Sim. 173. 263 SECTION III. OF THE INSTRUMENT BY WHICH A POWER IS REQUIRED TO BE EXECUTED. Forms required must be com- plied with. The variotis ceremonies, viz. Deed enrolled ; Several witnesses — noble- men, 8$c. ; Credible witnesses ; Sealing ; Signing ; Notice. Charity an exception. <5. Deed required ; tvill not good. 7. Will required, act inter vivos not good. 8. Where the power is by con- struction confined to a tvill. 10. By "will or otherwise, a deed good. 4. 13. Will valid, though sealed and o delivered. 15. Sale by tenant for life tviih power to appoint by tvill. 16. Writing, fyc. tvill include a tvill. 18. Roscommon v. Fotvke. 22. Although power to ttvo and survivor. 23. Distinct powers. 24. Where the ceremonies relate to all the instruments. 28. Donee may select one of several modes. 29. May execute it by more instru- ments than required. 1. We now come to the cases in which particular circumstances are required to attend the execution of the t2tJ4 INSTRUMENT AND CIRCUMSTANCE* REQUIRES the power: these are generally, first, a particular in- strument ; secondly, a particular mode of execution ; and, thirdly, conditions not strictly relating to the in- strument, as the consent of third persons, tender of money, or the like. 2. 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 opposition to the agreement, to consider the estate charged when the mode pointed out is not adhered to (a); in the second, to dispense with the solemnities and forms required to attend the execution of the power, is to deprive a man of the bridle which he has thought proper to impose on his weakness or frailty of mind, in order effectually to guard himself against fraud and im- position (b). 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 may be exercised. This was laid down and ad- mirably enforced by Lord Ellenborough, Chief Justice, in the great case of Hawkins and Kemp (c). There the terms of the power required that the revocation should be by deed or instrument in writing, executed in the presence of, and attested by, three credible witnesses, and enrolled in one of his Majesty's Courts of Record at Westminster, and with the consent and approbation of Hawkins's wife, his father, father-in-law, and also of several (c) See 7 Ves. jun j()(i. (c) 3 East, 410. See Rex v. (!>) 'S Cha. Ca. 66, 107; unci Inliab. of Anstrey, 6 Mau. & Sebr. sec Piggot r. Pcnricc, Com. 250. o'l 1. MUST BE COMPLIED WITH. 'itio several trustees, being in all nine persons. The Lord Chief Justice said, that every one of these required cir- cumstances was in itself perfectly arbitrary, and (except only as it was, 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 and how many witnesses ; whether it should be afterwards attested by the witnesses, and ultimately enrolled in any Court of Record ; and whether it should be sanctioned by the consent and approbation 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, un- attested, unenrolled, and unsanctioned, 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 perform- ance. They were incapable of admitting any substi- tution, because these requisitions had no spirit in them which could be otherwise satisfied ; incapable of re- ceiving any equivalent, because they were in themselves of no value. 3. If, therefore, a writing is required, a disposition by parol will be invalid, although the property might by law be so disposed of(^). If the power is required to be executed by deed, nothing less will satisfy the words, and it must be sealed and delivered (as we shall see) as a proper deed, without reference to the power of the don.ee (d) Thruxton v. Attorney-General, 1 Vern. 34-0. 2GG WITNESSES, &C. REQUIRED TO EXECUTION. donee to make a proper deed ; and therefore a married woman must seal and deliver the deed as if she were sui juris. If the deed is required to be enrolled, the deed must accordingly be enrolled ; if a particular court be named, that court must be resorted to (e). If the consent of particular persons be required, their con- sent must be obtained (f). If two witnesses are re- quired one will not do ; if the witnesses are to be of the rank of noblemen, commoners will not satisfy the words (g). If sufficient subsidy-men be required as wit- nesses, sufficient and credible persons who are not sub- sidy-men will not be good witnesses (A). And where credible witnesses are required, — and if not required it would be implied, — a witness to whom an estate, although in remainder, is limited, will not satisfy the power (i). If a seal be required, an instrument under hand only, will be an invalid exercise of the power (J). If the in- strument is to be signed, it cannot be executed other- wise (k) (I) ; and if signature and sealing be required, an instrument unsigned will not be valid although sealed. (e) Digges's Case, 1 Rep. 173. (h) Kibbet v. Lee, Hob. 312. See 3 Cha. Ca. 90. if) Hawkins v. Kemp, 3 East, . m w ' l (i) Doe v. Keir, 4 Mann. & 410; and see Mansell v. Mansell, « , ,«, Kyi. 101. (j) Dormer v. Thurland, 2 P. (g) Bath and Montague's case, Wms. 506. 3 Cha. Ca. 55; 2 Freem. 193; af- (k) Bird v. Stride, Bridg. 21, firmed in Dom. Proc. cited. (I) The statute of frauds (29 Car. 2, c. 3, s. 5) requires wills of lands to be in writing, and signed by the devisor. Upon the autho- rities, it is a question whether sealing is not signing (Lemaync v. Stanley, 3 Lev. 1 ; Lee v. Libb, 1 Show. 69 ; Warneford v. Warne- ford, 2 Str. 764; Smith v. Evans, 1 Wils. 313; Grayson v. Atkinson, 2 Ves. .454 ; Ellis v. Smith, 1 Dick. 225 ; 1 Ves. jun. 11. See 2 Bla. Com. 306; Dougl. 244, 2d edit.; note, Dime v, Munday, Sid. 362, was EXECUTION FOR A CHARITY. 267 sealed (/). And the act must be performed by the donee himself, and not by the hand of another ; for he who hath power under his hand to revoke cannot do it other- wise ; nor is incapacity from illness an excuse for not signing, as where a power to lease was to be under hand and seal, and the lease was sealed but not signed, by reason of the gout, yet it was held invalid (in). But what will amount to a sufficient signature will be dis- cussed hereafter. To return then : if notice is required to be given, the execution of the power will be void if notice be not given accordingly (ii). And so in every case that the ingenuity of man can devise, the terms of the power must be complied with. 4. But where the appointment is to a charity, any writing, however informal, as an execution of the power, is good as an appointment within the statute of charitable uses(o); for this statute supplies all defects of assurance which the donor was capable of making (j>). The intent of the statute, it has been said, was to make the disposi- tion of the party as free and easy as his mind, and not to oblige him to the observance of any forms or cere- mony (q). By an act of George the Second (r), gifts to charitable uses are required to be made by deed indented, (1) Thayer v. Thayer, Palm. Penrice, Com. 250; Prec. Cha. 112; Blockville v. Ascott, 2 Eq. 471. Ca. Abr. 659, side-note. (p) Attorney-General v. Bur- (m) Blockville v. Ascott, ubisup. (let, 2 Vern. 755. & infra. (q) Attorney-General v. Rye, (n) Ward v. Lenthal, 1 Sid. 143. 2 Vern. 453. (o) 43 Eliz. c. 4 ; Piggot v. (r) 9 Geo. II. c. 36. was before the statute). But, without question, if the point should ever call for a decision, it would, in conformity to the express words of the statute, and the general opinion of the Profession, be holden that sealing is not signing. See Morison v. Tumour, IS Ves. jun. 175. 268 EXECUTION FOB A CHARITY. indented, sealed, and delivered, in the presence of two or more credible witnesses, twelve months at least before the death of the donor, and the 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 George the Second are attended to, the gift will operate as an appointment under the statute of charitable uses, although the instru- ment 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 appoint by a simple note in writing unattested, yet he must conform to the directions of the act. 5. But to return, the rule that every circumstance required to the execution of a power must be strictly attended 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 powers, or modes of executing them, have received a judicial exposition. I proceed, therefore, to consider these cases in the order before proposed ; and although the courts cannot dispense with the form pre- scribed, yet we shall find that they in general incline to put a liberal construction on the words of the power. 6. As to the instrument.— -If a deed is expressly re- quired, the power cannot be executed by will. This was decided by Sir Joseph Jekyll, in the case of Woodward WHERE A DEED IS REQUIRED. 269 Woodward ?;..Hasley (s) (I), in which a power of revo- cation by deed sealed and delivered, was holden not to be well executed by a will ; and the decree was affirmed by Lord Chancellor King-, who said, that factum was a technical 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 Dar- lington v. Pulteney (t), in which the former case was not cited. Lord Mansfield took up the question in the same way. He 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 case sent out of the Court of Chancery, and Lord Chancellor Bathurst decreed, according to the certificate of the Court of King's Bench, that the power was not well executed ; and it is unimportant that the solemnities (s) Rolls, Feb. 1727, MS. and see Bushell v. Bushell, 1 Rep. (t) Cowp. 260; confirmed by Temp. Redesdale, 96 ; 4 Taunt. Doe v. Lady Cavan, 5 Term Rep. 297. 567; 6 Bro. P. C. by Toml. 175 ; (I) According to the Registrar's book the power was, u by any deed or deeds in writing, under his hand and seal, and sealed and delivered by him in the presence of three or more credible witnesses, to re- voke, make void, alter, or change, any of the uses, &c. therein limited; and by the same deed or deeds, or any other deed or deeds, in writing, under his hand and seal, and by him 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 Rolls held the will to be a revocation, but the Registrar's book, in this respect, agrees with the above note; Reg. Lib. B. 1727, fo. 212. Upon the appeal 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 plaintiff's petition, this order was directed to be entered, Reg. Lib. B. 172S, fo. 454. I searched to the end of the year 1731, without meeting with any further trace of the cause. 270 WHERE A WILL IS REQUIRED. solemnities required to the execution of the deed have been adhered to in the will (u) ; for although it may be sealed and delivered as a deed, yet it still retains the character and operation of a will. 7. 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 power. This was laid down by Lord Hardwicke, in the case of Whaley v. Drummond(a:). 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 in his life-time. 8. 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 (?/) ; although it has been recently decided that a devise to the testator's wife for her life, and also at her disposal afterwards to leave it to whom she pleased, gave her a power of disposition by will only, by reason of the word leave, which was not properly applicable to a disposition by deed (z). And where the gift was of a sum of money to pay the interest to each of his four daughters, for their own private use during their lives, independent of any other person, " the principal to go to their heirs, or to any other they miffht choose to will it to," it was held that the words to " will it" meant to dispose of it by will, and therefore an (u) Tollett r.Tollett, 2 P. Wms. Heatley v. Thomas, ib. 596. 489; and Woodward v. Halsey, (y) Anon. 3 Leo. 71; Tliom- supra. linson v. Dighton, I Com. 194.; (x) Ch. Easter Term, 1745, MS.; 1 P. Wms.149 ; ex-parte Williams, Reg. Lib. B. 17+4, fo. 150. See 1 Jac. & Walk. 89. Reid v. Shergold, 10 Ves. jun. (z) Doe v. Thorley, 10 East, 370; Anderson v. Dawson, 15 438; Walsh v. Wallinger, 2 Russ. Ves. jun. 532. See and consider & Myl. 78 ; 1 Toml. 425. WHERE NOT CONFINED TO A WILL. . 271 an appointment by deed was not a good execution of the power (a). 9. In a recent case, Thomas Grace by his will gave to his wife Mary Grace 4,000 1, or whatever surplus might arise after the moiety left to his two minor children, sub- ject to a proviso therein contained, (that is to say) that she should enjoy the interest thereof for her natural life, and dispose of the same to such of her children which he should leave as she should devise and think proper. It was insisted that the power was confined to a will. In favour of the contrary construction, Thomlinson v. Dighton, 1 P. Wms. 149; Anon. 3 Leo. 71, c. 108; Goodtitle v. Otway, 2 Wils. 6 ; Lord Ormond's case, Hob. 348, were relied upon, and the case was distin- guished from Doe and Thorley, 10 East, 438 ; and the case was decided accordingly. Sir William Grant was clearly of opinion that the power was not confined to a will. If the bequest had been to her for life, and then to devise as she might think proper, there the word devise would have admitted but of one sense ; but here it is as she shall dispose, which admits of two construc- tions, and this means as she should think right. Sup- pose you translate devise, as she shall bequeath by will ; how then would it read ? To dispose thereof as she shall bequeath by will and think proper, therefore she has a general power (&). 10. A power to appoint by will, or otherwise, of course authorizes an appointment by deed (c). So where the bequest was of personal property to the separate use of the wife, for life, and after her death to such persons as she by any will, or appointment, to be by her signed and sealed in the presence of one or more witness or witnesses, (a) Paul v. Hewetson, 2 Myl. Oct. 1811. & Kee. 434. (c) Irvin v. Farrer, 19 Ves. 86; (6) Grace v. Wilson, Rolls, MS. and see Van v. Barnett, ib. 1 10. 272 WHERE NOT CONFINED TO A WILL. witnesses, should appoint, and in default of such will or appointment over, it was held that she might appoint by- deed (//). 11. But under a power to appoint by deed or will, so as in every such deed a power to revoke by r deed was contained, the Vice-Chancellor was of opinion, although it was not necessary to decide the point, that an appoint- ment by deed, with a power of revocation by deed or will, was not authorized by the power. This seems to deserve re-consideration, because the donee might re- serve a power to revoke by deed or will, although not authorized to do so by the instrument creating the power. The original power was to appoint by deed or will. The donor appears only to have been anxious that an irrevocable appointment should not be made. The power of revocation reserved was only r tantamount to the original power. The donee might, without doubt, have in several ways effectuated the same object. She might have appointed by deed to such uses as she should appoint by will, with a power in the deed to revoke by deed. She might have appointed by deed to herself absolutely, with a power to revoke by deed, and of course she could devise her interest, and the will would be operative if the appointment to herself remained unrevoked by deed. The power which she reserved was the same thing in effect (e). 12. 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 disposition by deed or otherwise. This question arose in the reign of James the First, upon a dispute between the (d) Wells v. Faron, V. C. 27, {e) Phillips v. Phipps, V. C. Nov. 1S18, MS. the cause stood M. T. 1818. MS. over on another point. WHERE NOT CONFINED TO A WILL. ^73 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 suffered 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 case was referred to the two Chiefs, Montague and Hobart, and Justice Dodridge. They all agreed that the fee resulted to the Earl in the meantime. And Montague appears to have thought that the settlement took effect out of his 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, which was not to be understood a testament only, but to be extended unto any other voluntary disposition or gratuity what- soever. However, upon this difference of opinion, the King took the opinion of some of the other Judges, who agreed with Montague, and so the point in question was not decided (f). The point in the foregoing case is not likely to arise at this day, because uses are generally declared in a more formal manner. And it is clearly distinguishable from a power to appoint by will, for in this case the word " will " evidently points to the instrument ; but in Lord Ormond's case the declaration to the use of the (f) Earl of Ormond's case, and Shepherd v. Spencer, 1 Keb. Hob.34S. See3Cha.Ca. 61, 190; 821; Co. Litt. 112 a, n. (2) 27 I. T 274 WILL EXECUTED AS A the Earl's will was considered to mean rather the mind of the donee than the instrument by which his intention was to be expressed. But even if it should be so considered, yet as the law now stands, unless the execution was testamentary, it should seem that it could not be revoked without an express power re- served. 13. However, it is clear, that even where a power is required to be executed by " the will," or " last will and testament," of the donee of the power, 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 Dyer (g), where the uses of a re- covery were declared to be, to perform the will of the person who suffered the recovery, he executed the power by a deed indented and sealed, and the question was whether 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, therefore, the point was taken for granted. Lord Chief Justice Treby, in adverting to the case, said that the instrument 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 (Ji). 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 cir- cumstance 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 from operating as a will. (g) Anonymous, Dyer, 314a, (h) See 3 Cha. Ca. SG ; and see pi. 97. ib. 64. DEED VALID. 275 will (i) (I). But it will not be deemed testamentary merely because the limitations, from their nature and the state of the settlement, cannot take effect until the death of the appointor (k). 14. Moore, in his celebrated argument in Lord Buck- hurst's case (/), cites Lord Awdley's case in a manner which has induced an inference, that a power to be ex- ecuted by will cannot be exercised by an instrument in the shape of a deed. The case is reported in Dyer(?w), and in Leonard (n). A recovery was suffered by Lord Aw r dley 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, because (?) Hixon v. Wytham, 1 Cha. (&) See Hougham v. Sandys, Ca.248; Greener. Proude,l Mod. 2 Sim. 137, 138. 117; Habergham v. Vincent, 2 (I) Mo. 515, 5 1 6. Ves. jun. 204 ; and see Devereux (???) 166 a, 324 b, pi. 37. v. Moor, 1 Keb. 697; Trimmer (») 2 Leo. 159; 4 Leo. 166, v. Jackson, 4 Burn's Eccle. Law, 210. p. 130, cited. (I) In the Attorney-General v. Jones, 3 Price, 368, three Judges against Wood, B. held that a voluntary deed, assigning leasehold and personal estate, under which the grantor was entitled for life, with a power of revocation, and which he confirmed by his will, was a testa- mentary instrument within the stamp-act. The opinion of the Pro- fession is undoubtedly with Mr. Baron Wood. The case must be referred to its particular circumstances. It cannot be denied that a man may make a valid voluntary settlement by deed to avoid the pay- ment of the legacy-duty, reserving to himself a life-estate, and a power of revocation, and of course his subsequent ratification of the settlement by his will cannot give the settlement a testamentary ope- ration. The point has recently been so ruled, Tompson v. Browne, 3 Myl. & Kee. 32. T 2 27). 28. We may here observe, that where several modes of executing a power are stated, the donee may, in tin- absence of a direction to the contrary, execute it in which of the ways he pleases. Thus, where a power was, that a wife might make a will in the presence of the husband, unless he refused, or in the presence of ./. S., or two such persons as she should appoint, it was determined to be in the wife's election to execute in which of the three ways she chose (n). And yet, cer- tainly, the power seems to have implied that the wife should not execute in the presence of J. S. 9 or the other persons, unless her husband refused to permit her to execute in his presence. 29. We shall hereafter see that a person executing a power may declare that it shall not take effect 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 instrument 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 operate as an appointment ; not the deed, because that would be con- trary to the intention of the person executing it ; and certainly not the fine, as that would be contrary to the words of the power ; yet taken both together the power will be duly executed, quce non valent singula, juncta prosunt. (I) Noy, 79. See 1 Jones, 134 ; Barlow, infra. Palm. 429 ; 2 Roll. Rep. 293. (n) Harris r. Bessie, 1 Keb: (wi) Palm. 431. See Wright v. 343. BY SEVERAL INSTRUMENTS. 29 1 prosunt. This is the Earl of Leicester's case before noticed (o). And it is on the same principle, viz. that the donee intends the several instruments, taken together, to amount to an exercise of the power; that a fine first levied, and then a deed declaring 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 (/>). It is, however, to be observed, that the case did not decide that a declaration of uses at any time after the fine will prevent the forfeiture, and ope- rate as an execution of the power. Indeed Mr. Justice Withers, who was the only Judge of the King's Bench that held the power was not destroyed, expressly said, that "the fine and deed should be considered as one conveyance in favour of common assurances, where 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 sub- sequently declared. This observation has been already made (q). 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 (r). The principle of these cases cannot be applied to a case where (o) Vide supra, p. 94. (q) Sup. p. 94. (p) Sup. p. 93 ; and see Snape (?) See Doe v. Whitehead, 2 v. Turton, Cro. Car. 472 ; and see Burr. 704; Hurd V. Fletcher, 2 Freem. 113. Dougl. 45. u 2 '2\)-2 WHERE TWO DEFECTIVi: 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 execu- tion, although in the two instruments taken conjoint I \ , the directions of the power are strictly complied with. This was decided in the case of Hawkins and Kemp(s). There the deed executing the power was required to be enrolled, and a deed was accordingly executed and duly enrolled, but was a defective execution of the power in other respects ; a further deed was then prepared, by which, after reciting that doubts had arisen as to the former execution, the power was duly executed. In the body of the last deed the intention to enrol it was stated, but it never was actually enrolled. It was insisted that the two deeds together operated as an execution of the power ; but Lord Ellenborough, in delivering the opinion of the court, said, that in this case there was no intent that the two deeds conjointly should revoke the uses, and that the enrolment of the first should be applied to or be in any way connected with the second. On the contrary, the last deed in the body of it takes notice of the enrolment, as an act to be done in respect to the then executing deed, thereby not only adverting to the neces- sity of actual enrolment, but virtually disclaiming the benefit (if indeed in any shape such benefit could have been derived from it) of the enrolment of the former inefficacious deed of revocation and appointment. It was sufficient for the determination of the court, in the preceding case, to show 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, they could be so construed. And the better (s) 3 East, 410; and see infra, A pp. No. 25, to Treat, of Pur- s. 4 ; and see Sloane r. Cadogan, chases, 9th edit. INSTRUMENTS OPERATE. 293 better opinion is, that they could not; for the distinction appears to be, that for several instruments to constitute one assurance, such must be the intention of the parties at the perfecting of the first assurance ; and that an intention to refer a subsequent assurance to a prior one, Avhere such intention did not exist at the execution of the first assurance, will not be effectual. Thus, in Sey- mour's case (t), where a tenant in tail conveyed by bargain and sale, and afterwards levied a fine to the bargainee, it was determined that the fine did not work a discontinuance, because it did not appear that any fine was intended to be levied at the time of making- the bargain and sale ; whilst, on the contrary, in Doe v. Whitehead (u), where there was a covenant in a release from a tenant in tail, to levy a fine to the use of the releasee, the fine and release were holden to be but one assurance, and consequently the fine operated as a dis- continuance. The same principles appear to apply to the case under consideration. Fines are now abolished, but titles still depend upon them, and the law above quoted, therefore, is important with reference to past transactions. And the doctrine itself is of course still of general application. It strongly bears, for example, on the point decided in Hawkins and Kemp. (t) 10 Rep. 95. (u) 2 Burr. 704. IT 3 .ill I WHAT A.MOl NTS TO SECTION IV. OF THE MODE IN WHICH THE INSTRUMENT IS TO DE EXECUTED. 11, 12 13 15, 16, 31, Writ ing under hand and seal re- quired, delivery tinnecessary. Due attestation ; one witness good. So due execution and attesta- tion. Legally executed ; xvhat is re- quired. Willan v. Lancaster. By deed or will, must be exe- cuted as a proper deed or will. Jones v. Clough. Stamp or wafer not equal to a seal. Incapacity to sign, no excuse. Subscription in the presence of witnesses. Attestation by the ivitnesses. ~] If attestation not required, in- J formal one, good. 17. Attestation required; sealed instead of signed, bad. 20. ~\ Attestation of pidrfication of 24./ will. 2 1 . Delivery of a will, a publication. 25. Meaning of "attest" 20. Review of the decisions. 21. Act to amend past defective attestations as to signing. 28. Observations upon it. 29. Construction of it. 30. More witnesses than are re- quired, good. 32. Execution by blind man. 34. Enrolment required, must be in the life of the donee. 35. Whether attestation can be amended. 37. Codicil properly executed sup- ports a will not. 1. 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 duly complied with. But there are few cases in which the courts require any thing beyond the strict letter of the power ; therefore, where a writing under hand and seal is required, it need not be delivered (a), although writings signed and sealed are usually deli- vered also. 2. Where the deed is required to be duly attested, an attestation by one witness will satisfy the words. In Poulson v. Wellington (6), the first power required the deed (a) Carter i. Carter, Muse. 360. (b) 2 P. Wms. 533. A DUE ATTESTATION. 29.") deed executing it to be attested by two witnesses ; but by a latter deed the power reserved was by any writing duly attested, in which case the Lord Chancellor observed a writing would have been duly attested though it had but one witness. 3. In a late case (c) it was decided, that under a power over a leasehold estate, to be executed by a will duly executed and attested, a will not signed, sealed or attested, was not a good execution. One witness would have been sufficient. 4. In a case (d) where customary lands were vested wnian v. in a trustee for such persons as the owner by any deed or instrument in writing, or by his last will and testa- ment in writing, or by any codicil or any other instru- ment in writing, purporting to be in the nature of such last will, &c. to be by him legally executed, should appoint, it was held that a codicil not attested (I) was not a due execution of the power. It appears to have been taken for granted at the bar, that as the will was to be legally executed, it ought to be executed in the manner required by law to pass the particular estate ; and therefore they addressed themselves to the consideration of the manner in which a will of customary freeholds should be exe- cuted and attested. Lord Gifford, Master of the Rolls, desired the case to stand over for another argument, for he said a different question arose from the general point which was argued. It was one question, whether the equitable interest in a customary freehold can pass under a testa- mentary paper not executed and attested according to the statute of frauds ; it was a different question, whether under the power the codicil could be effectual. What was (c) Sanders v. Franks, 2 Madd. (d) Willan v. Lancaster, 3 Russ. 14-7. 108. (I) See the judgment: the report merely states, that the codicil was not executed and attested according to the statute ol' frauds. 2J>8 WHAT IS A DUE ATTESTATION. was to be, lie asked, the construction of the words " to be by him legally executed." The testator might have meant "executed according to the statute of frauds." W hether the equitable interest would or would not pass by a will not attested, the difficulty still remained, whether under such a power the appointment made by an unattested codicil could be operative. When the case came before Sir John Copley, Master of the Rolls, he was of opinion that the lands did not pass by the codicil. 5. The power only required the instrument to be legally executed. Now there are several legal modes of executing such an instrument, depending upon the nature of the estate comprised in the power : where, therefore, the words are used indefinitely, they should be held to refer to such a legal execution as would be sufficient to pass the interest itself. The power did not require attestation. If the equitable estate would have passed by a will unattested, it may be thought that no difficulty remained whether under the power the appointment made by the unattested codicil could be operative. It is not stated upon what, ground Lord Lyndhurst decided the case. The words ' legally or duly executed' require attestation as a part of execution, where by law that ceremony is required to a legal or due execution of an instrument to pass such an interest as the power com- prises ; but where an unattested execution would be a legal or due one, it seems impossible to require more. The ceremonies required by the statute of frauds have no application to such a case. 6. This appears to have been the opinion of Sir John Strange, in Jones v. Clough (e). He observed, that supposing the case of a power reserved by the owner of an estate to himself, by will, without adding duly or legally, in such case his act must be such as answered the (?) See 2 Ves. 3(>7 . DEED OR WILL HOW TO BE EXECUTED. 297 the utmost idea of the word duly, though will only was mentioned. But certainly there might be cases where the words duly executed might not require the solemnity of the statute of frauds, for if no lands were given by the person making the will, that will would be duly exe- cuted though there were not those witnesses the statute requires, because those words must refer to the nature of the act, and the nature of that which passes by it. We may here observe that a will, although required to be duly executed, does not require a seal (f). 7. The mode in which the instrument is to be exe- cuted is mostly expressed, but sometimes implied ; ex- pressed, as that it shall be signed in the presence of two witnesses ; implied, as where a power is given to appoint an estate generally by deed or will, without defining the manner in which it is to be executed, or even expressing that it shall be duly or legally executed ; it is implied that the deed or will shall be executed in the manner prescribed for the execution of deeds and wills by the common and statute law. Therefore, if the power be executed by deed it must have a seal, as that is of the very essence of a deed, and must of course be delivered. If the instrument be a will, and the subject of the power be personal estate, it may be executed by a mere paper writing, without signature or attestation, in like manner as a proper will of personalty. So if the property be real estate the will must be executed with the solemnities required by the statute of frauds, because it is within all the inconveniences of the statute (g). And the case is stronger where it is required to be duly executed, as the donor must be understood to have referred to some known rule, which, as he himself has mentioned none, can be no other than the rule of law, and that the statute of (f) 1 Crompt. & Mee. 1?G. (g) Sec 2 Lord Kcny. 463. 2f)} Buckmaster v. Harrop, 7 Ves. jun. 345. Plowd. 3( WHAT AMOUNTS TO SIGNING. 301 ment is a deed, and on proper stamps, and it is stated in the attestation to have been sealed and delivered in the presence of the witnesses, it will, in the absence of evidence to the contrary, be presumed to have been sealed, although no impression appear on the parchment or paper. This, I am told, Lord Eldon decided when in the Common Pleas. But in Sprange and Barnard, Lord Kenyon rested his decision on the single circum- stance of the deed being upon stamps. 12. Of course a seal adopted by the donee is suffi- cient, for that is the ordinary mode of sealing deeds ; but where signature is required, the mere incapacity of the donee to comply with the requisition, as where he has the gout in his hand, will not, it seems, excuse the non-performance of the condition (o) ; but where the donee cannot write, whether by reason of sickness or ignorance, it should seem that his mark would be equi- valent to signing his name. This has been determined upon the statute of frauds, which requires the witnesses to wills of lands, to attest and subscribe the will : yet it has been held that an attestation signed by a marksman is sufficient (p). And it seems equally clear that a mark by the testator himself would be equivalent to signing his name, although the statute expressly requires a sig- nature. So it seems that a man may stamp his name, which will be tantamount to a signature (g). And in a recent case, upon the statute of frauds, Lord Eldon thought that if a man is in the habit of printing his name instead of writing it, he may be said to sign by his printed name as well as his written name (r). 13. If (o) Blockville v. Ascott, 2 £q. Skin. 79. Ca. Abr. 659. (q) See Lemaine v. Staneley, (p) Harrison v. Harrison ; Acldy ubi sup. v. Grix, 8 Ves. jun. 185, 501; (r) Saundeison v. Jackson, 2 and see Lemaine v. Staneley, 1 Bos. & Pull. 239 ; and see Jones Freem. 538 ; and Hudson's case, v. Dale, infra. :?0-2 OF SUBSCRIPTION IN THE 13. If the instrument is required to be signed or sub- scribed in the presence of witnesses, and the donee do not comply with the requisition, the power will be badly executed. Thus in the case of Jones v. Dale (s), in an indenture to lead the uses of a fine, there was a power of revocation, and the trustees were to be seised to the use of such persons, &c. as the party should by deed or will, to be subscribed and sealed in the presence of three witnesses appoint. The jury found that the testator made his will, written with his own hand, and that he declared to the witnesses, that the whole was so written ; but he only sealed and delivered, and did not sign it in the presence of the three witnesses. It seems that the testator did not subscribe his name, except by writing the attestation, in which was his own name. The case was very fully argued. The court were of opinion against the will, although it was adjourned. Raymond, Chief Justice, said, that this was not a good will within the statute of frauds, being not signed by the devisor in the presence of three witnesses ; and so held in B. R. between Lee and Libb ; Carthew(£). The power ought to be strictly pursued. Reynolds said, that in this case, sealing and signing are different acts, both which must be done to perfect the act. He agreed, where an act by construction and operation of law amounts to a performance of the thing to be done, there it need not to be so strictly pursued. If in this case the testator had wrote the attestation in the presence of three witnesses, or he had usually stamped his name, and he had stamped it, he believed it might have amounted to subscribing. Probin, Justice, said, that by this power there (s) May 1728, MS. from some (t) This opinion has been since notes in Lincoln's-Inn Library. overruled. Vide infra, M'Queen v. Farquhar. PRESENCE OF WITNESSES. 303 there are two acts to be done, and the jury have found that one of them was not done, and therefore the power not well executed. Reynolds said, saying and doing a thing is not the same thing, and his saying he had writ it himself won't amount to a subscribing in the presence of three witnesses, as the power requires. 14. And in Simeon v. Simeon the very point was de- cided. The power was required to be executed by will or codicil, signed and published by the donee in the pre- sence of, and to be attested by, two or more credible witnesses, and the will was written and signed by the donee of the power, but not in the presence of witnesses ; she acknowledged her signature to two witnesses sepa- rately, and they signed an attestation importing that the will was signed and delivered in their presence («). This went beyond Jones v. Dale, where there was no signing or subscription. The Vice-Chancellor held that delivery was equivalent to publication, and he said, that if there had been the requisite number of witnesses to the will, it would have been duly executed under the statute of frauds, but it clearly was not a good execution of the power. This judgment is not distinct. The sub- ject of the power was personal estate, but the learned Judge did not state whether or not his opinion was that the will was invalid on both of the grounds, viz. 1. the want of an actual signature in the presence of the wit- nesses; 2. the want of a signature, or a proper acknow- ledgment of one, in the presence of both the witnesses at the same time. It would not be safe to dispense with either of those ceremonies. 15. Powers were formerly, in most instances, required Usual to be executed " by writing under the hand and seal of the (m) 4 Sim. 555. 304 OF THE OMISSION OF THE WORD the donee, and attested by two or more witnesses" — in some instances, the instruments executing the power were required "to l>e signed and sealed by the donee, in the presence of, and attested by, two or more wit- nesses." The common form of an attestation to a deed has always been, "sealed and delivered by the party, in the presence of us," to which memorandum the wit- nesses set their names. Signing is not essential to the validity of a deed, although sealing is. This accounts for the omission of the word signed in the above form ; and even now, that all deeds are signed as well as sealed, the old form is retained. In requiring a deed exercising a power to be under the hand and seal of the donee, and attested by witnesses, it was not intended to impose any new form of execution or attestation, but merely to render it necessary, that the instrument should be duly executed, and attested, in the common form, by the number of witnesses required. This is proved by two circumstances : the one, that the words in question are in all the old common forms of powers of nearly every description in a conveyancer's office, and were inserted, in settlements and wills, as a common form, without any special instruction ; the other, that although such words were daily inserted in instruments, and nearly all the titles in the kingdom were affected by the question, yet the common attestation of " sealed and delivered," was still adhered to ; and it was never considered, until very recently, that it was essential to insert the word signed in the attestation. After the point was raised, the opinion of almost every man of eminence at the bar was, that the objection was not well founded. This was the opinion of a learned Lord, who has since filled one of the highest judicial situations. 10. The first case which occurred on this point came «j before SIGNED IN THE ATTESTATION. 305 before Lord Eldon. There the deed executing the power was required to be signed in the presence of witnesses, but they were not required to attest the signa- ture, and the word signed was omitted in the attesta- tion ; but in the body of the deed actually executed it was stated to be signed by the donee, in the presence of the witnesses, according to the power. Lord Eldon said, that upon the question, whether after execution it ought to be taken, that he did sign in the presence of the witnesses attesting the sealing and delivering, there would be a miscarriage in a Judge directing a jury, if that fact was found, 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 (w). Lord Eldon has since observed, that he thought the case rightly decided. That was the case of powers to be executed in the presence of witnesses ; and in one instance, with this further requisite expressed, to be attested by witnesses. The power actually exercised by the deed, upon which the question arose, was to be exercised in the presence of witnesses, but was not required expressly to be attested by witnesses. The deed said to be an execution of the power upon the face of it, was expressed to be executed in the presence of the witnesses ; and so far from determining that attestation of the sealing was an attestation of the signing, he had merely said there would be a mis- carriage in a Judge if he did not direct the jury to presume that the deed was signed, as it professed to be on the face of it, in the presence of the witnesses who attested the sealing and delivering ; a way of putting it, that, so far from deciding, expressly avoided the (to) M'Quecn r. Farquhar, 1 1 Ves. jun. 4-67. X •*><><; OP THE OMISSION OF TTIE WORD tlic question, whether attestation of the sealing ;m»l delivering- is to be taken as attestation of the signing also. 17. A case lately arose, in which the power was re- quired to be executed " with the consent of Thomas Wood the elder, and Thomas Wood the younger, testi- fied by any writing under their hands and seals, attested by two or more credible witnesses (.r)." The power had been exercised with the proper consents, but the attesta- tions contained the words scaled and delivered only ; but the witnesses, after the death of one of the consenting parties, executed a memorandum on the deed, certifying that the deed was signed as well as sealed by the parties in their presence. Lord Eldon, assuming that the attes- tation should have contained the word signed, expressed a strong opinion that a subsequent attestation would not do, upon the ground, that where a deed of this sort gives a power, the execution of that power is a limita- tion of a use, and unless the use arises at the time when the power is executed, upon ordinary principles it does not arise at all. His Lordship said that he did not agree with the proposition that the writing is the thing to be attested. In the case of an execution by will of a power in the ordinary words, " by his deed sealed and delivered in the presence of two or more credible witnesses, or by his last will attested," &c, it is not the will that is at- tested, but the act of the testator, and that necessary act is to be found in the statute of frauds, requiring not merely that the instrument shall be executed by the testator in the presence of the witnesses, but that it shall be attested and subscribed by them. Two acts are there- fore required ; one that he shall subscribe in their presence ; the other, that they shall attest that he has done (.r) Wright v. Wakeford, 17 Ves. jun. I.H. SIGNED IN THE ATTESTATION. 307 done so (I). Assuming then, that the deed, in order to be a good execution of the power, must be a writing not only sealed and delivered, but also signed, if it is required that both should be attested, an attestation is required of two acts in their nature different ; and if a signature is actually found at the bottom of the deed, and the jury will find that act as done in the presence of witnesses, he did not say that would not do ; but if attestation at the time is required, it cannot be presumed, where there is no signature, though the sig- nature which is there may be presumed to have been in the presence of witnesses not appearing to be so. If therefore the real meaning of this power is, that there shall be an attestation upon the instrument of the sign- ing as well as the sealing, and there is upon the instru- ment no such attestation, it is not a case for the pre- sumption of a jury that the act was done which appears not to have been done ; but as this is a case of great importance, it is a proper subject for the decision of a court of law ; and his Lordship accordingly directed a case to the court of Common Pleas. The Judges of the Common Pleas, after, it is under- stood, considerable fluctuation of opinion, returned two certificates — Lord C. J. Mansfield being of opinion that the power was duly executed, and the other three Judges being of a contrary opinion. The Chief Justice was of opinion, that though the form of attestation did not con- tain in it the word " signed," the witnesses must be un- derstood to have attested the signing as well as sealing of the deeds by the two Woods. The omission of the word " signed," he thought immaterial, and he also thought that the subsequent attestation would supply any ( I) But it is decided that a testator need not sign in their presence. See infra. x2 308 OF Tin: OMISSION OF THE WORD any detect in the former, because when the Woods signed in the presence of the witnesses, they did all that was to be done by them, and they could not afterwards re- scind or annul it, and no rule required that the attes- tation should be immediately written at the time of the execution of the instrument. The other three Judges considered the question to depend simply on the true construction of the terms of the power ; and they thought that the signature by the parties was not comprehended in the words made use of in the attestation, and that the subsequent attestation did not cure the defect (z). The Lord Chancellor, upon these certificates being returned, of course dismissed the bill, which was for a specific performance against a purchaser. It was not necessary for his Lordship to give an opinion on the question. 18. The same point afterwards came before the Court of King's Bench. A power to two persons was required to be exercised " by any deed or writing under both their hands and seals, to be by them duly executed in the presence of and to be attested by two or more cre- dible witnesses (a)." The body of the deed executing the power stated that it was " under the hands and seals of both the donees, attested by and duly executed in the presence of the two credible persons whose names are thereupon indorsed as witnesses thereto." The attesta- tion contained the words "sealed and delivered" only, but the witnesses, by a subsequent attestation, certified that the deed was signed as well as sealed in their pre- sence. The Court of King's Bench held that the power was badly executed. 19. In (z) 4 Taunt. 213. See the cer- son claiming under the power, tificates, Appendix. No. 7. Denman, contra; 2 Maul, and (a) Doe v. Peach, Easter Term, Selw. 576. 1^1 !, MS. Reader, for the per- SIGNED IN THE ATTESTATION. 309 19. In a still later case (6), the Court of King's Bench expressed their intention to adhere to their former de- cision, without again entering into the question. The power was " by deed or deeds, writing or writings, under her hand and seal, attested by two or more credible witnesses, or by her last will and testament in writing, or any writing purporting to be her last will and testa- ment, to be by her signed, sealed, and published, in the presence of three or more credible witnesses," to charge the estate with 4,000 /. to be paid as the donee " by the same deed or deeds, writing or writings, or last will and testament, or writing purporting to be her last will and testament," should appoint. And for more effectually securing the charge, she was authorized " to limit and appoint" the estate (generally) to trustees for a term. The deed was signed by the donee of the power in the presence of the witnesses, but the word signed was not contained in the attestation. The case was directed by the Master of the Rolls. Lord Ellenborough, upon the general point being pressed, stated that the Court would, if it were wished, turn the case into a special verdict, so that it might come before the twelve Judges ; and his Lordship said, that he could not say to what decision the Court might come with the assistance of the other Judges. The Court of King's Bench, on the 2d February, 1815, certified that " they were of opinion that the afore- said power given to the said Elizabeth Barlow was not duly and effectually executed by the said indenture of the 20th of January 1781." The certificate was signed by Lord Ellenborough, C. J., Mr. Justice Le Blanc, and Mr. Justice Bayley. 20. In (b) Wright v. Barlow, ISth Selw. 512; and 6ee Moodie v. Nov. 1814, MS. Sugden, for the Reid, 1 Mad. 51 6; Hougham v. person claiming under the power, Sandys, 2 Sim. 95. Holroyd, contra; 3 Maul, and x 3 310 WHAT IS A DUE ATTESTATION •Jo. Iii the case of IVfoodie v. Reid, a power to be exe- cuted l>v will, or any writing- or appointment in nature of a will, to lie signed and published in the presence of and attested by two or more credible witnesses, was held to be not well executed by a will signed by the donee, and attested thus, " witness B. H. and J. H. ;" although the testatrix told each of the witnesses that that paper was her will. But then the last words of the will were, " These my last bequests signed by me, &c." and then the word witness, and the names of the witnesses, fol- lowed. And the decision proceeded on the ground that a will as such does not require publication. Lord C. J. Gibbs held that the witnesses had clearly attested the signing, but that there was no attestation of the pub- lication (c). 21. In Ward v. Swift (d), Mary Swift had a general power of appointment by deed, &c., or by her last will and testament in writing, or any instrument in writing in the nature of or purporting to be her will, to be by her duly executed and published under her hand and seal, in the presence of and to be attested by three or more credible witnesses. She signed, sealed and delivered her will, and it concluded thus : " In witness whereof, I have set my hand and seal hereto in the presence of the underwritten." The attestation was " signed, sealed and delivered as the last will and testament of the said Mary Swift, &c. &c. In the course of the argument, Lord Lyndhurst, C. B., asked whether it would be con- tended that delivery as a last will and testament is not a publication. Mr. Baron Bayley said, supposing that publication does mean something more than a mere delivery, yet the expression is " her last will and testa- ment." (t) 7 Taunt. 35 5 ; 1 Madd. 516. (d) I Crompt. & Mee. 171. OF PUBLICATION. 311 mcnt." And the court certified their opinion to be that the will was a due execution of the power. 22. And in Simeon v. Simeon (e), where the power required the will to be signed and published in the pre- sence of and attested by witnesses, the words of the attestation were " signed and delivered in the presence of" the witnesses, and the will was duly acknowledged and delivered : the Vice-Chancellor held that the deli- very was equivalent to publication. 23. In Lempriere v. Valpy (_/*), the power was to the intended wife by will, to be signed and published in the presence of witnesses, but their attestation was not re- quired. She made her will in a few words, and the words of the attestation were " signed and delivered in the presence of the witnesses." The witnesses proved that she, in their presence, signed the paper and de- clared it to be her will. The Vice-Chancellor was of opinion that the will was duly executed. He said it was observable that the terms of the power did not re- quire the witnesses to make any written attestation at all. The case was, therefore, free from the objection that was made in Moodie v. Reid, and the cases there referred to, where the witnesses did not sign an attesta- tion, in writing, of the signing and publishing, which were required to be attested ; but, even admitting those cases to be law, it appeared, by the evidence as well as by the written attestation, that the will was produced and delivered by Mrs. Lempriere. In Moodie v. Reid, Lord Chief Justice Gibbs says : " if the act of the testatrix, in calling on the witnesses to attest her will, be a publica- tion of it, then their attesting that she signed it, attests her publication also ; because they attest that by which she publishes it." His Lordship also says : " I do not know (e) 4- Sim 555. (/) 5 Sim. 108. x 4 312 ATTESTATION OF PUBLICATION. know what the publication of ;i will is. I can only sup- pose it to be that l>v which a person designates that he means to give effect to a paper as his will." And, con- sistently with what the Lord Chief Justice is reported to have said, his (the Vice-Chancellor's) opinion was that the will, in this case, by having been first signed, and then delivered to the witnesses, by Mrs. Lempriere, in order that they might attest it, had been duly signed and published by her within the terms of the power. These cases, therefore, fully establish the important point that a delivery of a will is a publication of it, and that the precise word published need not be contained in the attestation. 24. In Stanhope v. Keir () 54 Geo. 3, c. 168— Mr. Preston's Act. Y 322 WHERE TITF. STATUTE SUPPLIF.- such powers, authorities and trusts, were frequently required to signify such consent or direction by deeds or instruments signed by them, or under their hands ; and that it had been the ordinary practice, in the memorandum of attestation of deeds, to express the facts of sealing and delivery only; and that doubts had arisen respecting the validity of deeds or instruments so attested and requiring signature, although the same must have been actually signed by the person, whose signature was required thereto, and the titles of many purchasers, and of other persons claiming under such instruments, might be defective for want of the insertion of the word " signed," or some word to that effect, in the memo- randum of attestation thereof. And it recites, that it was expedient that the titles of purchasers and other persons should not be disturbed, merely on account of the omission to express the fact of signature in the memorandum of attestation of any such deed or other instrument already made : it was therefore enacted, that every deed or other instrument, already made with the intention to exercise any power, authority, or trust, or to signify the consent or direction of any person whose consent or direction might be necessary to be so signi- fied, should (if duly signed and executed, and in other respects duly attested) be from the date thereof, and so as to establish derivative titles, if any, of the same vali- dity and effect, and no other, at law and in equity, and proveable in like manner as if a memorandum of attes- tation of signature, or being under hand, had been sub- scribed by the witness or witnesses thereto ; and the attestation of the witness or witnesses thereto, expressing the fact of sealing, or of sealing and delivery, without expressing the fact of signing or any other form of attes- tation, should not exclude the proof or the presumption of signature. And THE WORD SIGNED. 323 And it was enacted, that the act should extend and be construed to extend to all deeds and other instruments already made in exercise of powers, authorities, and trusts, of sale, exchange, partition, selection, nomination, discretion, leasing, jointuring, raising portions, and other charges, and for appointing new trustees, and other powers, authorities and trusts whatsoever, or made for evidencing assent, consent, request, direction, or any other like circumstance, in reference to the execution of any such powers, authorities, or trusts. But it is provided, that the act should not extend to revive or give effect to any appointment, revocation, or other assurance theretofore made, as far as the same had been avoided by entry or claim, or by suit at law or in equity, or by any other legal or equitable means what- soever ; nor should the act affect or prejudice any suit at law or in equity, then depending, for avoiding any deed or other instrument of appointment, revocation, or assurance. And it is also provided, that if any person who had made any such entry or claim, or who had brought any such suit, or had defended any suit for the purpose of avoiding any such appointment, revocation, or other assurance, should release the benefit of the same entry, claim, suit, or defence, within six calendar months next after the passing of the act, then such entry or claim, or suit or defence, should not prejudice or avoid any such appointment, revocation, or other assur- ance, but every such appointment, revocation, or other assurance, should be and remain in force under the act, as if no such entry or claim had been made, or suit brought or defended. And it is lastly provided, that nothing in the act con- tained should extend to affect any question respecting any instrument not within the provisions of the act, and which might want any formality in the attestation of y 2 any 324 WHERE THE STATUTE SUPPLIES any witness or witnesses thereto, but such instrument should have the same force and effect as it might have had if the act had not been made. 28. The above act, which it will be observed was passed alter the decisions were pronounced in Wright and Wakeford, and Doe and Peach, still treats the points as only doubtful, and it recognizes the established prac- tice in these cases to be, to express the facts of sealing and delivery only in the memorandum of attestation. It is much to be regretted that the measure was not made at once a complete remedy for the evil which it professed to cure. Every sound principle of legislation required that the act should be prospective. The act, however, was limited in its progress through parliament to a retrospective operation. The question, therefore, must still frequently occur in regard to future execu- tions of powers. To prevent its recurrence as much as possible, every conveyancer should expunge from his common forms any expression which may be considered to require the word signed to be inserted in the attesta- tion ; and solicitors should in every case make the attes- tation " signed, sealed, and delivered." If the latter precaution were generally adopted, the old form would be forgotten, and the question would never arise. The act only extends to a defective attestation of sig- nature, and therefore, where the attestation noticed the signing, but omitted the sealing, which was required by the power to be attested, the pow T er was, upon the fore- going authorities, held to be badly executed, and the case was not considered to be within the act (- tinct powers to appoint new uses, or to revoke the old uses, of two distinct estates, on tender upon each appoint- ment or revocation of any given sum of money, as 5 5., and he tender one sum of 5 5. 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 persons (a) ; but it seems to have been thought, that where the powers require the performance of any other act than the pay- ment of the money, the performance of one single act would be sufficient (b). It is evident that no general rule can be laid down on this subject. If, indeed, a man have several distinct powers of revocation over different estates, upon riding to York, the performing the jour- ney 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. 3. Where 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 executing the power, and that the person to whom the tender is made should acknowledge it by indorsement on the deed ; for although the fact may be proved by parol evidence, yet in some cases it might be difficult to establish (a) Gresham's case (I), Dy. 10Gb.; Mo. 2G1. 3 72 a, p. 9 ; 1 Leon. ; 9 Rep. (b) See Dy. 372 b. (I) This case is differently stated in Moore. It is there stated, that each of the powers required a tender of 10 s. and that the donee actually tendered 20 s. ; but the doubt was, whether a tender of the two sums in one entire sum would do. Dyer, Leonard, and Coke, however, state the case as in the te.\t. TO THE EXECUTION OF POWERS. 333 establish it to the satisfaction of a jury (c). 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. 4. Although money is required to be tendered at a particular place, yet a tender in the absence of the per- son 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 (d). 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 (e). 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 to receive it ; and then, if at the time appointed a tender be made, although he absent himself, it is a good performance of the proviso (f). 5. 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 whom it is to be made, will be valid even at law (g), 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). 6. Where a tender is required to be made to a man or his heirs, if he die, leaving an infant heir, the tender may be made to the infant, of whatever age he may be. And (c) See Arundel v. Philpot, 3 pi. 32 ; and see 3 Cha. Ca. 67. Cha. Ca. 70, 108, cited 2 Vern. {/) 8 Rep. 92 b. 09 ; Lock v. Norborne, 3 Mod. ( g) Thorne v. Newman, 2 Cha. 111. Rep. 37 ; and see 3 Cha. Ca. 68, (d) Lady Burg's case, Mo. 602. 108. (e) Burrough's case, Dy. 35 1 a, (h) See 3 Cha. Ca. 03. 334 DEATH OF TERSON TO CONSENT 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 Wardorum, in the 11th of Jac. I. (i). 7. Where the consent of any person is required to the execution of the power, that, like every other condition, must be strictly complied with (&). 8. And if the person whose consent is necessary, die before the execution of the power, and without having assented, the power is gone, although his death was the act of God (J). So where the consent of several persons is required, the death of one of them destroys the power, for the consent of the survivors will not satisfy the words of the power (m). 9. In Mansell v. Mansell (w), it was argued that by the death of the party to consent, the power became abso- lute. Wilmot said he would consider this as a mere legal question, uninfluenced by any apparent or declared intention either way. It is said that the power vests upon the testator's death, and that whenever there is a vesting, whatever happens to defeat it afterwards is a condition subsequent, and if that becomes impossible by the act of God, that the estate or interest vested becomes absolute. (i) Ley, 57. v. Mansell, Wilm. 36. Uc) Sympson v. Hornsby, Prec. (m) Atwaters v. Birt, Cro. Eliz. Cha. 452 ; vide supra. 856 ; S. C. Noy, 38, nom. Ahvaters (/) Danne v. Annas, Dy. 219, v. Bird, vide supra, p. 14!. pi. 8 ; Frankelen's case, Mo. 62, (n) Wilm. notes, 30. pi. 172, cited; and sec Mansell DESTROYS THE POWER. 335 absolute. Something does vest upon the testator's death : a power to be exercised in futuro upon a precedent con- dition or a contingency, the same as vests in devisee of estates upon condition, not the estate itself, but a right to have the estate when the condition is performed. Where an estate vests and is executed, it gives an imme- diate right to the rents and profits, which shall not be taken away by a condition becoming impossible ; but all powers are executory, and vest no estate in any body till they are executed. The power in itself is a mere in- corporeal right, and whilst it remains incapable of being exercised, it is to every intent and purpose the same as if it did not exist at all ; and wherever a fact is to happen before it can be exercised, that fact must be in the nature of a condition-precedent; whatever must happen before it can be executed must precede it ; the time of exercising the power is the only point of time to be con- sidered, whether the condition is precedent or subsequent* He had no idea of a condition subsequent to the execu- tion of a power. An estate derived under the execution of a power may be defeasible by a condition subsequent. But before a power starts from its state of inactivity, whilst it is incapable of being executed, it does not exist : where the event happens, and it exists and is executed, there is an end of its existence, and no subsequent con- dition can unexecute the power and determine the exist- ence of what does not exist. The trustees' approbation was a condition precedent to the existence of this power. His appointment without their approbation was as in- effectual as their approbation without his appointment. They must both concur to the animation of this jointure: he could no more execute this power after they were dead, than he could whilst they lived and withheld their consent. It had been said that the execution of this power devests nothing. It postponed the remainder. If 338 SURVIVORS CANNOT CONSENT If the words " if living" had been added, they would not, he thought, have varied the case ; at least they would vary it no more than what was expressed : they could not consent if they were not alive. — Powers of revocation are often given in marriage settlements, with consent of trustees ; but it was never apprehended that when the trustees were dead the tenant for life might revoke all the uses of the settlement. It was in the power of the giver to modify the gift as he pleased, and the donee must take it as it was given to him ; and if he cannot have it in that manner, he cannot have it at all. — The true way of considering this question was to take it as a dejjM cription and designation to take. All powers arise out of the old fee, and when executed operate by the statute of uses, and are equivalent to a limitation inserted in the deed containing the power ; the party is in by the giver of the power. The same as if devised to son for life, remainder to such woman as he shall marry, with the consent of A. and B. She must bring herself within the description in order to take. 10. Nor will the consent of the survivors be valid, although the deceased trustee lost his life by the award of the law, as if he were attainted and executed (6). 11. But the intention of the parties will be observed, however informally it be expressed. Therefore, where a power of revocation was given in a marriage-settle- ment 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 suffi- cient, although the power did not expressly say that the consent of the survivor should be valid (p). 12. And (o) Butler v. Bray, Dy. 1 89 b ; Touch. 526 ; S. C. 2 Ro. l78,nom Wilm. 56. Gardner r. Savill. (p ) Savil v. Stirling, Shep. WHERE HEIRS ARE TO CONSENT. 33 r 12. And in one case, whereafter a devise of his lands to his wife in fee, the testator declared that she should be directed and governed by A and B, and their heirs, in the management of her concerns, whom he appointed his trustees to act for her and his children's interest, as thereinafter mentioned, viz. after his wife's decease, he gave all his said lands to his son (who, it appears, was improvident,) for life, and that he should be capable, with the consent of his trustees, both of whom were of an advanced age, to settle a jointure on the woman they agree to, in writing, he should marry, 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 consent was personal, they thought the expression would be equivalent to saying " 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 (q)." It was not, however, neces- sary to decide either of these points. 13. In Hewett v. Hewett (?•) the testator devised his estates to four persons and their heirs, to uses in strict settlement, and declared that the tenants for life should have power to fell such trees and woods when in posses- sion as his said four devisees to uses, (naming them), or the survivors or survivor of them, should assign, allow of, or direct, by writing under their hand. All the trus- tees (q) Mansell v. Mansell, Wilm. 1 Barn. & Aid. 608. supra, 145. 36 ; and see Hewit v. Hewit, (r) 2 Eden, 332 ; Ambl. 508. Ambl. 508 ; Townsend v Wilson, Z 338 PROOF OF CONSENT. tees died, and Lord Northington was of opinion that the trustees were appointed as supervisors only to prevent destruction in the tenants for life to the inheritance. He thought the trustees were not intended to have an arbi- trary volition, and that the trust was intended to be co-extensive with the estates for life ; and as both de- pended on the contingencies of life, the will to have effectuated that intention, should have added the heirs of the survivor. The omission of that was a mistake, and as such, he thought, ought to be rectified in equity. He relied also upon a like mistake in another clause in the will. He considered it rather a power to fell, upon con- dition the trustees allow of the timber proposed to be felled, and when that condition becomes impossible by the act of God, it would be either pure at law, which was certainly not the intent, or the power would be gone while the estate to which it was annexed remained, and which, he thought, could not possibly be the intent either. He, however, preserved a check, and allowed the mature timber to be cut, with the approbation of the Master. It is not easy to reconcile the principles upon which the two cases were decided : the latter, however, must be considered to depend upon the construction of the will, from which the testator's intent was collected that the power should endure as long as the estate. 14. In Lord Mordaunt v. the Earl of Peterborough (s) ? the Earl had a power of revocation, with the consent of the Countess, in writing. She was a party to the deed, which was necessary in order to save her jointure, and she sealed 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 conceived this not to be a suffi- cient revocation. The point, however, did not call for a decision ; 0) 3 Keb. 305. WHEN CONSENT IS TO BE GIVEN. 339 decision ; but this case enforces the necessity of stating accurately in the deed executing the power the com- pliance with every circumstance imposed on the execu- tion of it. 15. The consent required to the exercise of a power should therefore be so given as to form part of the same transaction : it is of course not necessary that the con- senting party should execute before or at the same time with the party exercising the power. In an early case, already cited (f), where one devised his lands to his wife for life, the remainder to his son in tail, and if his son dieth without issue, that his executors shall sell the land, by the advice of A and B, and A dies in the life of the son, the sale after the death of A is not good ; but it was said that if A had assented in his lifetime it had been good (u). As a general rule, however, it must be considered that all the acts required to the due execu- tion of a power must at all events be completed in the lifetime of the person executing it. 16. In a late case, where a power of substituting one security for another was given, with the consent of the trustees in the settlement, it was held that they must all consent previously to or at the time of the intended exe- cution of the power, in order to give it validity (x). In delivering the opinion of the Court of Common Pleas on this point, Tindal, C. J., observed, that whether in all cases a consent, where necessary, must be given before the execution of a power, or whether it would in some cases be sufficient to ratify the execution of the power by a subsequent consent, it was then unnecessary to deter- mine. It was sufficient to lay it down that where the nature (t) Danne v. Anna, Dy, 219 a, (.r) Greenham v. Gibbeson, 10 pi. 8. Bing. 363 ; 4 Moo. & Scott, 198. (u) Lee v. Vincent, Cro. Eliz. 26". z2 340 WUV.fi CONSENT IS TO BE CIIVEN. nature and object of the power, and the circumstances of the case pointed to a previous consent, there such pre- vious consent was necessary, although not required by the terms of the power. In the present case the consent to the proposed substitution implied an exercise of judg- ment on the part of those who were to give it, which judgment ought to be formed on the state of circum- stances as they existed at the time when the substitution was to be made. In this case, therefore, it seemed to them (the Judges) a necessary consequence that the con- sent must precede, or at all events accompany, the exe- cution of the power. The check intended to be inter- posed against the improper substitution of anew security in the place of the old one, was the agreement in opinion of the trustees that the substituted security was at least as available for the charge of which they were trustees as that which had been given up. But this of all others was a question which ought to be determined by the comparative value of the two estates at the time of the substitution, and ought not to be a question left uncer- tain, and subject to the chance of the substituted estate becoming afterwards more valuable, and the consent of the trustees to be therefore procured at a future time. Indeed it was impossible to read the w r ords of this power without perceiving the intention to have been that the consent of the trustees should form a condition precedent to the execution of the power. " In case the said Richard Gibbeson shall, with the consent of the trustees, secure, &c," words that were inconsistent with the sup- position that the substitution should for a time be left in uncertainty whether it was approved of or not. It was upon these general grounds that they had agreed in the opinion expressed in their certificate to the Lord Chancellor. 17. "Where a person's consent is required to the exe- cution CONSENT CANNOT BE DELEGATED. 341 (ration of a power he cannot delegate the confidence re- posed in him. This was one of the points in the case of Hawkins and Kemp (?/). 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 part of the case was abandoned, as the court intimated a decided opinion against it, on the ground, that it would operate as a total destruction of the check intended by requiring the personal appro- bation of the trustees. 18. Where trustees had power in a marriage settle- ment, with the consent in writing of the wife, to raise 1,500 1, for the husband, and they raised the money without a written consent, it was held that a subsequent regular consent, by which the wife declared that the sale was with her full consent, was not valid, and the trustees were compelled to refund the money (z). 19. It appears scarcely necessary to observe, that where a trustee is authorized to consent to a revocation he will not be guilty of a breach of trust by giving his consent accordingly, unless he act fraudulently. In Reresby v. Newland (a), a daughter claimed her portion under a settlement, by which her father, with the consent of the trustees, had power to revoke all the uses. This power was held to prevent the right to payment. Lord Mac- clesfield said it had been objected that it would be a breach of trust in the trustees to join in a revocation of the term which secured the portion. But, he added, that he thought it might not be only a justifiable but commendable thing in the trustees, under some circum- stances, to consent to such a revocation ; as suppose the daughter should be drawn in to marry some very un- worthy (j/) 3 East, 410. (a) '2 P. Wms. 93. (:) Bateman v. Davis, j Madd. DS. Z-> ."'.J-i TRUSTEE TO CONSENT, NOT CONTROLLED. worthy man, who should use her in a most barbarous mariner, and the daughter should afterwards die without issue, upon which the husband should sue for the por- tion, in this case it would be very reasonable in the trustees to join with the father in revoking these uses ; or suppose the daughter should have left children by such marriage, it would be reasonable for the trustees, by consenting to a revocation, to prevent the portions going to the husband, and (if practicable) to carry it to the children of the daughter; so that this power seemed to be still a subsisting power, which there might be thereafter very good reason to put in execution. Lord Macclesfield, in considering some of the cases in which it would be commendable in the trustees to consent must not be considered as having ruled that the consent would not be valid unless the court thought the circumstances warranted it. It is for the trustees acting bond fide, and not for the court, to consider whether the revocation should take place. 20. Neither will a court of equity control a trustee's discretion and compel him to consent. Thus, where in a marriage-settlement it was provided, that if the husband, his heirs, executors, or administrators, with the approbation and good liking of two trustees, should settle lands of 80/. 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 revoca- tion would 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 kind against trustees who had a discretionary power to consent or not was never admitted (b). 21. But (b) Brcreton v. Brercton, 2 Ves. 87, cited. CONSENT OF PROTECTOR OF SETTLEMENT. 343 21. But if after a contract to execute a power of sale a bill is filed, and the trustees submit to act under the direction of the court, a reference will be made to the Master to inquire whether the contract was proper to be carried into execution (c). 22. We may close these observations upon consent with the case of Hutcheson v. Hammond (d), where a testatrix 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. 23. And in this as in all other cases fraud may be relieved against, and therefore if a trustee whose consent is necessary to the due execution of a power is prevailed upon to consent by misrepresentation, the consent will in equity be deemed void (e). 24. In the act for the abolition of fines and recoveries, a protector is established for every settlement, who is authorized to concur in and consent to the disposition in fee by the tenant in tail of lands entailed, and in order to render his power free from control, it is enacted, that any device by which it shall be attempted to control him in giving his consent, or to prevent him in any way from using his absolute discretion in regard to his con- sent, and also any agreement entered into by him to withhold his consent, shall be void ; and that the pro- tector shall not be deemed to be a trustee in respect of his power of consent, and a court of equity shall not control (c) Doran v. Wiltshire, 3 Russ. (e) Scroggs v. Scroggs, Ambl. 702. 272, App. No. 9 ; and see infra. (d) 3 Bro. C.C. 128. z 4 :'. I 1 LOST INSTRUMENT. control or interfere to restrain the exercise of his power of consent, nor treat his giving consent as a breach of trust (f). And it is also provided that the rules of equity in relation to dealings between the donee of a power and any object of a power in whose favour the same may be exercised, shall not be held to apply to dealings between the protector of a settlement and a tenant in tail under the same settlement, upon the occasion of the protector giving his consent to a disposition by a tenant in tail ( , 17 . and SGe Ano . Rep. 684. The marginal abstract nymous, 2 Leo. 220, pi. 27G. (I) But the estate was sold under the widow's bill as a specialty creditor. :*50 AT WHAT TIME A POWER MAY BE EXECUTED. Exchequer (in which the case of Uvedale and Uvedale was cited), where the devise was to A, the testator's wife, for life, and after her decease a power to trustees to sell, and pay the money amongst the children of JB, who had an infant child then living, the Court held that a sale could not be made till after the widow's de- cease^). The bill was an amicable one, and was filed by the widow against the trustees and the infant for an immediate sale, but after two arguments the Court dis- missed the bill. 8. Where the parties beneficially entitled are adult, 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 legal estate, and the cestuis que trust would be bound by the sale. But even if the 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 appointment will convey the estate to the purchaser ; for until the death of the tenant for life, the power, according to the case in the Exche- quer, does not arise, and consequently cannot till then be executed. 9. 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 v. Burleigh (k), in a strict settlement, a power was given to the wife to sell the estate if she should survive her husband, not having issue, or with- out issue of their two bodies. The husband died, leaving 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 (0 Meyrick v. Coutts, Excheq. (*) Prec. Cha. 293 ; S. C. 2 8 July 1S06, MS. Vern. 651. AT WHAT TIME A POWER MAY BE EXECUTED. 351 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. The Lord Chancellor said, that there was no occasion in this case to make any artificial construction of the proviso, for that the words thereof fell in naturally with the meaning of the parties, and gave her a power to sell when the issue failed ; for where an estate is made to a man and the heirs of his body, and if he die without issue, or without heirs of his body, the remainder over, this is a good limitation wherever the issue fails ; though in that case if he leaves issue he cannot properly be said to die without issue. But this is a much stronger case, for death is a single act, and to be performed but once, and though the issue dies without issue, a year after, you cannot say he died without issue, because he actually left issue ; and yet a limitation over in such a case is good ; but here, surviving is a continuing act, and she survives her husband as much a year after his death as she did the first moment ; and therefore if the issue fails during her life she actually survives without issue, or not leaving issue, because the issue fails during her survivorship, which continues after the failure of issue ; and this is the plain and natural meaning of the words, and agrees with the intention of the parties, which was to give her the disposal of so much lands, in case the issue to be provided for by the settlement failed. 10. In a more recent case, where the estate was limited to such of the children of the marriage, for such estates, and subject to such provisions, conditions and limitations, as the wife should by deed or will appoint, and in default of such appointment, to all the children in fee, and in case there should be no such issue, to the use of such persons, &c. as the wife should appoint, the wife executed the power, and left a son living at her death ; and 3:>-2 AT WHAT TIME A POWER MAY HE EXECUTED. and it was decided that the appointment was void (/) ; but the Court appear to have thought, that if the wife had survived her son, the power would have arose. This was a liberal construction in favour of the power; for it is settled, that issue, in a case like that, means child, and therefore it might be thought that the birth of a child at once prevented the power from arising, and that his death the next hour would not revive it. The Court, according to Lord Kenyon's report now published, said there were two powers in the settlement : 1st, in case there should be issue; and, 2nd, incase there should be no issue. It appeared to have been the general design of the settlement and of the parties, that if there should be issue, they should take the whole in- heritance of both estates, because, in case of no appoint- ment, all the children are to take equally, to them and their heirs, as tenants in common, and probably the design of the first power to the wife, which was framed in very general and extensive terms, was to enable her to give the estate to an eldest son, but to carve thereout a term, for portions for younger children ; but so as she should have no power to dispose of any part of it to a stranger in prejudice to her children. It was argued from the bar that she had an express power to limit what estate she pleased to the children, which might be in tail, or for years ; and then they ask, what is to become of the reversion ? The Court answered, that, in such case, the reversion in fee would have gone to all the children equally, by virtue of the next limita- tion; for either this partial execution of her power would be defective, and merely void, as in the case of Menzey and Walker, before Lord Talbot, or else, if it should be (/) Doe r. Denny, cited in 2 Wils. 337, reported in Say. 295 ; 1 Lord Keny. 280. AT WHAT TIME A POWER MAY BE EXECUTED. 353 be deemed good pro tanto, the children would take the inheritance, whereof no appointment was made ; which, however, was not the question here, as she had made a disposition of the whole. This was the opinion of the Court, because they thought, if there should be issue, they were to take the whole inheritance, which shows there could be no resulting use. The next event was the appointment made by her in the life-time of her son, to whom she limits an estate, to him and his heirs ; and so far it was consistent with and in pursuance of her power ; but then she goes on and says, " but in case my said son shall die under twenty-one, and without issue, then," &c. ; which was a void limitation, as the second power was not to arise so long as there was issue : indeed, had she survived her son, and then executed her power in favour of a stranger, it might, perhaps, have been good, according to the case of Holt and Burley, but that was not the case here. Besides, if this limitation to the son did not give him a fee (as they thought it did), he then took the remainder of the estate by the next limitation in the settlement. 11. In a late case(m), where the devise was to the testator's daughter for life, remainder to his grandson (her son) in fee, and if the grandson should die with- out issue in her life-time, and there should be any other issue of hers then living, to the use of such in fee ; but in case the grandson should die without issue in her life-time, and there should be no other issue of her body then living, then to such person, &c. as she, whether covert or sole, should by deed or will appoint, and in default of appointment, to the testator's right heirs. She exercised the power by deed in her son's life-time, and he afterwards died in her life-time without issue ; and (m) Dalby v. Pullen, 2 Bing. 144. A A 354 AT WHAT TIME A POWER MAY BE EXECUTED. and it was held to be well executed. Now here the contingency had two branches: 1, the son was to die in her life-time, not leaving- issue ; 2, she was not at that time to have any other issue living: but the whole con- tingency must of necessity happen in her life-time ; and therefore the case is an authority that a power given on even such a contingency may be exercised before the event happens, and the rule is a sound one. 12. But there is a distinction where the power is given to a designated person to be executed upon a con- tingency, and a power given to a contingent person (w), if we may use the expression. 13. In an early case (o) a man devised part of his estate to his eldest son and his heirs, and the residue to the youngest son and his heirs, and if both die without issue, that then it should be sold by his execu- tors ; and it was the opinion of Hutton that the executors could not sell any part before that both were dead. For the youngest son had an estate tail in remainder in the part of the eldest brother, so that the executors cannot sell it, and if they do sell it, yet that shall not prejudice the younger brother so long as he has heirs of his body : — so that the opinion rather referred to the effect of a sale on the son's estate tail, than to the time at which the power might be exercised. 14. It frequently happens that powers are given to parties to be exercised by them when in the actual pos- session of the estate. In some cases it would be desira- ble 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 acce- lerate the charge under the power (p). Sometimes when a person (n) Doe v. Tomkinson, 2 Mau. (o) Fortescue v. Jobson, Hetl. P0. & Selw. 1 05. (p) See note to Co. Litt. 27 1 b. s. 3. AT WHAT TIME A POWER MAY BE EXECUTED. 355 a person 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 pos- session 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 remainder (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 the 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- veyance of his life-estate ; consequently the party will then be in possession, not by virtue of the limitations of the deed, but by the act of the first tenant for life. For, instead of being tenant in possession for his life only, as he would be if he was in possession under the limi- tations in the deed, he is tenant in possession for the life of another person, with a remainder for his own life ; so that he has two estates which are perfectly distinct, and under the limitations of the settlement he is only tenant for life in remainder. Where these words, there- fore, are inserted, it seems clear that the party is not in possession within the words or meaning of the deeds, and consequently not in a situation of exercising his power. Where these words are not inserted, it may be contended that they ought to be implied (q). Now, {q) Co. Litt. 271 b,note (1) s. 3, A A 2 35G AT WHAT TIME A POWER MAY BE EXECUTED. Now, there seems ground to contend, that even where there is no limitation to trustees, the power cannot be duly exercised. The question is not, whether in strict- ness of law the tenant is after the surrender in pos- session under the limitations, which he clearly is, but, whether the testator intended that the power should be executed in the given event. It is, in truth, a simple fraud on the remainder-man. Suppose A to be tenant for life, remainder to B for life, remainder to C, with a power to B to jointure when in possession. It seems clear that the testator could only mean, that B should exercise his power on the death of A, or forfeiture of his estate, that is, he can be only considered to have contemplated the determination of the estate by the act of God (death), or the act of the law (forfeiture). But if A surrender to B, who exercises his power, and then B die in the life-time of A, the estate will go to the remainder-man charged with the jointure ; whereas, without the assistance of A, the estate could not have been charged by B in his (A's) life-time. It may be said, that the possession of C, the remainder-man, is accelerated, inasmuch as if no surrender had been made, he would not have been entitled to the possession till the death of A ; but this argument leaves the testator's intention behind, and makes it a mere question of loss and gain. And if we look at the question in that light, we shall find that surrenders of this kind are made for the express purpose of charging the remainder-man's estate, so that he is never benefited by the arrangement. A lease is granted previously to the surrender, in order to secure the profits to the tenant for life who surrenders. To hold, therefore, this to be within the words of the will or settlement, is to authorize the tenant for life in possession, and the next remainder-man, to commit a fraud on the other remainder-men. These observations S appear OF PARTIAL EXECUTIONS. 357 appear to apply as well to a power under a settlement as to a power under a will, for in both the intention of the donor of the power is equally to be attended to. Since these observations were written, a case arose, where an estate was settled to a father for life, with an immediate remainder to his son for life, with remainders over, with a power to the father during his life and after his decease, to the son during his life, to lease. The father conveyed his life-estate to the son, who during his father's life-time exercised the power of leasing; and the Court of King's Bench held the lease to be void (r). 15. Here we may perhaps notice a case where a man covenanted to pay for the better support and maintenance of his wife 200 I. within two years next after he should be required, to such persons as she should by deed appoint; she appointed the 200?. to be paid to A, and died before notice to the covenantor ; and although the money was to be for her support and maintenance, it was held that notice need not be in her life-time (s). 16. Powers of appointment and revocation need not be executed to the utmost extent at once, but may be executed at different times over different parts of the estate, or over the whole estate, but not to the full extent of the power. Digges's case (f) is an authority, that under a power of revocation the uses of part of the land may be revoked at one time, and of part at another, and so of the residue, until the uses of all the land are revoked. So where a man has a general power of appointment, he may execute it at several times, and ap- point (r) Coxe v. Day, 13 East, 118. Richard Lee's case, 1 And. 67, (s) Roe v. Marshall, Skin. 34. and Co. Litt. 237 a. (t) 1 Rep. 173; and see Sir A A 3 358 ul PARTIAL EXECUTIONS. point an estate for life at one time, and the fee at another time («). And the same of a power of revocation (a:). So powers of jointuring, &c. may in like manner be executed at different times, provided that the party do not in all the executions exceed the limits of the power (y). 1 7. In a case (z) where a power was given to raise such sum or sums of money, not exceeding 200 /., for their two daughters, as A and his wife should appoint, and in failure of such appointment, then as the survivor should appoint, the Lord Chancellor said, it was insisted to be a power to appoint by parcels at different times, by virtue of the words sum or sums of money. But he was of opinion that was not the construction ; they could not do so. It was a discretionary power, not to raise by par- cels, but to raise any given sum, not exceeding 200 I. ; as suppose 100 I. or 150 /., and if they jointly had appointed any sum, the survivor could not add to or alter it. 18. And in Simpson v. Paul (a), where a sum of money was settled upon the children of the intended marriage, in such shares as the husband and wife, during their joint lives, or in default thereof, the sur- vivor of them, should appoint ; and the husband and wife, upon the marriage of a daughter, appointed 2,000 /. to the daughter, as her share of the settled sum, and the daughter and her intended husband released all claim to the fund; Lord Northington held, that the wife, who survived her husband, could not exercise the power of appointment as survivor. His reasoning, however, is (u) See Bovey v. Smith, 1 Vem. 1136; I Blackst. 28 1 ; and see 84. Doe v. Milborne, 2 Term Rep. (x) See Snape v. Turton, Oo. 721. Car. 472; and Bullock v. Thorne, (z) Brown v. Nisbett, 1 Cox, Mo. 615. 13, sed qu. (y) Hervey v. Hervey, 1 Atk. (a) 2 Eden, 31. 5(5\ ; Zouch v. Woolston, 2 Burr. MORTGAGE A PARTIAL EXECUTION. 359 is not satisfactory ; the power in the survivor, according to the general opinion, extends over the whole of the fund which remains unappointed. It was admitted that the joint appointment did not prevent a further joint appointment (b). 19. In Sumpton v. Sir Andrew Jenner (c), a power was given to a feme covert, and it was to be by her sole only and single act and deed sealed, which Maynard in- sisted could not be iterate ; but the Court resolved that these words meant, without joining of the husband only. 20. These are cases where the power is really but partially executed by the first appointment ; but a power, although exhausted at law, may be but partially executed in equity. Thus, if a man having a general power of appointment, or of revocation, appoint to one in fee by way of mortgage, the power is wholly executed at law ; but as equity considers a mortgage merely a security for the debt, in equity it operates as a partial execution only (d). And whatever may be the form of the instrument, if it be in effect simply a mortgage, it will operate merely as a revocation pro tanto. 21. In Perkins and Walker, under a power, a man vested a thousand years term in trustees for himself for life, and then for payment of his debts and a mortgage, and sums appointed to his relations, with a power of revocation. He afterwards made several mortgages, and it was held that they might be a revocation pro tanto, but no other- wise. In Thorne v. Thome,- upon a voluntary settle- ment upon himself, the settlor, for life, with remainder to his daughter in tail, remainder to his three brothers in (b) Vide infra. 141, 182. See Lassells v. Lord (c) 2 Keb. 261. Cornwallis, Prec. Cha. 232, the (d) Perkins v. Walker, 1 Vern. security, if not required, was to 97 ; Thorne v. Thorne, 1 Vern. be void, 2 Vera. 4-65. A A 4 360 WHERE A MORTGAGE IS in tail, remainder to himself in fee, with a power of revocation ; and he several years afterwards made a mortgage in fee, and the proviso for redemption was that he should have the lands in his former estate ; it was deemed to be a revocation pro tanto only, the mort- gagor being to have the lands on payment as of his former estate ; and although the mortgage was to one of the brothers, the remainder-man under the settlement, yet that circumstance was held not to vary the rule. But whatever is the form of the mortgage, unless an inten- tion can be collected to vary the uses beyond the mort- gage, they will attach on the equity of redemption (e). 22. But where there is not only a mortgage, but an ulterior disposition inconsistent with the former, it will operate even in equity as a total appointment or revoca- tion, unless there be a declaration that it shall be an ap- pointment or revocation only pro tanto. The case of Fitz- gerald and Fauconberge(/) does not go farther than this. There, under a general power of revocation, William Fow- ler conveyed the fee to trustees to raise and pay debts. And after payment thereof, that they should pay the over- plus, and re-convey the estates unsold, to him, or to such persons, &c. as he should, by any deed or writing, under his hand and seal, attested by two or more cre- dible witnesses, appoint. And by a deed of even date, he reserved power to revoke the conveyance. It was determined, that the former settlement was wholly re- voked. The Court admitted the authority of the cases before cited as to mortgages, and thought them nothing to the purpose; for mortgages are only securities for money, and no alteration of the estate is made thereby, but (e) See as to mortgages not combe v. Hare, Dow, 1 ; Reeve under powers, Jackson v. Parker, v. Hicks, 2 Sim. & Stu. 403. Ambl. 687 ; Corbett v. Barker, (/) Fitzg. 207. .' Anstr. 138 ; 3 Anstr. 7 J5 ; Kus- A FULL EXECUTION. 361 but only a charge let in upon it ; but they determined, that Mr. Fowler's intention was to do an act inconsistent with the former settlement, and to put the estate into a new channel. Indeed, the mode of directing the dis- position of the residue, but more especially the power of revocation reserved, strongly indicated an intention wholly to revoke the old settlement. The principle must be the same as is applied to revoca- tions of devises by mortgages, &c. And it is clear, that a a mere conveyance to a trustee in fee, in trust to sell, and pay debts, with the ultimate trust for the settlor, is, like a mortgage, only a revocation pro tanto of a prior will (g) But where the equity of redemption or residuary in- terest is settled differently, or a different power of dis- position is reserved over it, even equity will hold the mortgage or conveyance a total revocation. Upon the same principles the cases of Perkins and Walker, and Fitzgerald and Fauconberge, may well stand together. Nor does it appear to be material in these cases whether the mortgage is made to the person seised of the estate subject to the power of revocation, or to a stranger (Ji). 23. In the case of Anson v. Lee(i), estates were de- Anson ». vised to the testator's brother A, in tail, with remainders Lee * over, and the brother suffered a recovery to such uses as he should appoint by deed or will, &c, and in de- fault thereof, to the uses expressed of the same in the will. At the date of the will the estates were vested in trustees in fee to pay debts. After the recovery by A a sum was borrowed by the trustees, and they conveyed, and A appointed the estates to the lenders in fee by way of (g) Lady Vernon v. Jones, 2 Dick. 538; Baxter v. Dyer, 5 Ves. Freem. 1 17 ; 2 Vern. 241 ; Ogle jun. 650, which overruled Hark- v. Cooke, 2 Bro. C. C. 592, cited, ness i>. Bayley, Prec. Cha. 51 4-. (h) Thorne v. Thome, 1 Vern. (i) 4- Sim. 364. 182. See Peach v. Phillips, 2 362 WHERE A MORTGAGE IS of mortgage. By the proviso for redemption the estate was to be reconveyed " to the uses to which the same stood limited prior to the execution of the deeds," and the trustees then by other deeds conveyed the estates, subject to the mortgage, to the uses of the recovery deed, viz. to such uses as A should appoint, and in default, to the uses of the will. Seven years afterwards, by in- accurate deeds, the surviving mortgagee (being desirous to receive the money due) conveyed, and A appointed the estate to the new mortgagee in fee, with a common proviso for redemption, by the terms of which the estate was to be reconveyed "unto A, his heirs or assigns, or unto such person or persons as he or they should for that purpose appoint." These deeds recited the former deeds, but did not recite any intention of A to vary the uses. The Vice-Chancellor held that the mortgage was an appointment of the whole fee, even in equity, so as to defeat altogether the uses in the will. He con- sidered cases as between husband and wife not to bear upon this case, because A had settled the estate to the uses instead of vesting the fee in himself, and recognized that by other deeds. Then, though the deed creating the power was recited, and the deeds which repeated the same limitations, yet the framer of the last deed (which he admitted was drawn in a blundering way) delibe- rately departed from that power of limitation, and re- served the equity of redemption to A, his heirs and assigns. He said he must suppose that that which was expressed in the deed was what was intended by the parties to it, unless there was something in the character of the parties that necessarily rebutted that presumption. Where the husband and wife are dealing with the wife's estate, there is something in the character of the parties to the deed which rebuts the presumption that the equity ' of redemption was intended to go to the husband's heir. In A FULL EXECUTION. 363 In the case before him, it seemed to him that the pre- sumption was the other way, because A was himself taking, by means of this limitation of the equity of re- demption, a more beneficial interest in his own estate than he had, for some reason or other, which was not disclosed, thought proper to give himself by the prior deeds. In his (the Vice-Chancellor's) mind, there was nothing whatever to rebut the inference which arose from the plain impressions of the last deed ; but there was something that tended to support the inference that that was intended which was expressed. 24. This case seems to establish a new rule. A's ob- ject originally was to obtain the entire dominion over the estate, and yet preserve the uses declared by his brother's will in case he did not choose ultimately to alter the destination of the property. The last deeds, which were informally and inaccurately drawn, were executed, not because A had changed his intention, but because the mortgagee required his money ; and the proviso for redemption was simply an informal declara- tion of his intention to retain the dominion over the estate subject to the mortgage. In such a case intention must govern, and no intention to defeat the former limi- tations was declared by the instrument. It really was the common case of an estate in settlement, and the sub- sequent transfer of a mortgage, with an inaccurate pro- viso for redemption, but without any declared intention to do more than secure the mortgage, and without any such destination of the equity of redemption to new uses as of itself manifested such an intention. To say that because the limitation in the deed is to the party in fee, therefore it must be held to express the intention, is simply to deny the rule ; and the limitation, as it stands, might always be contrasted with the former set- tlement, if that would defeat the settlement altogether. The 304 WHERE A MORTGAGE IS The framer of the last deed might think that he had re- served the same power over the estate as A had before, and that was all he adverted to ; but the law steps in and forbids his short or inaccurate expression to defeat the previous settlement. It seems difficult to maintain the decision, and it does not appear to be supported by the authorities, which we may now shortly examine. 25. In a case where a father and mother had a general power of appointment, and in default of appointment, the estate was settled on themselves for life, and then to the children, as the husband should appoint, and in default thereof, to the husband in fee, it was held that the fee vested in the husband in default of appointment, though there was issue ; and this was held to be a mistake, which, under the circumstances, equity could rectify in favour of the children. It was then insisted, that a mortgage having been made by the husband and wife under their general power, which recited the settlement as it stood, and by which the equity of redemption was reserved, that mortgage amounted to a new limitation and appointment, which they were competent to make under their power ; but Lord Hardwicke decided other- wise, as he thought they meant not to make any appoint- ment, but only to mortgage the estate (/«:). innest.. 26. In Innes v. Jackson (I), an estate was settled on the husband and wife for life successively, remainder to the children in strict settlement, remainder to the wife in fee, with a power of revocation and new appointment to the husband and wife. They first made a mortgage for years, with a proviso for redemption by the husband and (k) Pritchard v. Quinchant; 104. The facts are correctly Jenkins v. Quinchant, Amb. 14-7 ; stated by Lord Redesdale. In 5 Ves. jun. 596, n. See Penne Mr. Vesey's Report they do not v. Peacock, For. 41. tally with Lord Eldon's judgment. (I) 16 Ves. jun. 336; 1 Bligh, Jacksun. A FULL EXECUTION. 365 and wife, or either of them, their or either of their heirs, &c, and in case of such redemption the term was to cease. All agreed that the deed operated under the power of revocation, but that it was a simple mortgage, and did not alter the limitations in the settlement fur- ther than was necessary to create the charge ; it was, therefore, not redeemable by the heirs of the survivor of the husband and wife, but only by those who were enti- tled under the settlement. They afterwards, upon a further loan, confirmed the term, which, upon payment of the money, it was declared should be void. By this deed the husband covenanted that he and his wife would levy a fine, which should enure to confirm the term, subject to redemption, and after the determination of the term to the husband and wife for their lives, and the life of the survivor, with re- mainder to the heirs of their two bodies, remainder to the right heirs of the survivor for ever. Lord Eldon, at the original hearing, thought that even this declaration of uses did not carry the execution of the power beyond the simple mortgage, because there was no recital of such an intention ; but in the House of Lords he agreed with Lord Redesdale, that the new limitation of uses sufficiently showed the intention without any recital. Lord Eldon said the doctrine was, that if the inten- tion is to make a mortgage of the wife's estate, that intention shall govern the parties, and the equity of re- demption shall belong to the person who had the estate before, so as to give back the inheritance to those from whom it came, exactly as where a man makes a mortgage of his own estate, and the proviso for redemption is to him and the heirs of his body, falling short of the description of persons who would have taken the inheritance originally before the mortgage (?w). He also observed, that though under (m) 10 Ves. jun. 367. 366 WHERE A MORTGAGE IS under an instrument, which on the face of it is an execu- tion of a power of revocation, and professes to limit new uses to the extent in which new uses are declared by it they will arise, it does not follow that new uses will be created in a mortgage transaction, nothing more appear- ing on the face of it to have been intended than the primary object of advancing the money (?*). Lord Redesdale stated the principle to be this : that in a mortgage the mere form of reservation of the equity of redemption is not of itself sufficient to alter the pre- vious title. In such a case it is supposed to arise from inaccuracy or mistake, which is to be explained and corrected by the state of the title as it was before the mortgage. This, he said, was conformable to the prin- ciple upon which other cases had been determined. If a lease be made by tenant for life under a power created by a settlement, and a rent is reserved to the lessor and his heirs, (which is not an unusual blunder,) those words are interpreted by the prior title, and applied to such persons as under the settlement may be entitled to the estate in remainder, and not to the heir of the lessor, unless he happen to be such remainder-man. In all such cases the words used are to be interpreted accord- ing to the title when the instrument is executed. So where an estate belonging to the wife is mortgaged, and the equity of redemption is reserved to the heirs of the husband, there is a resulting trust for the wife and her heirs (0). Where, he further observed, the declaration of the uses of the fine refers simply to the operation of the deed as a mortgage : where it is simply a declaration that the money being paid the fine shall enure to the persons who make the mortgage, and there is nothing else which makes it subject to redemption, that would be considered (») ]6Ves. juo. .369. (0) See 1 Bligli, 114; and see pp. !24 3 127. A FULL EXECUTION. 367 considered as a mere clause of redemption and construed in the same way. But where the form of the equity of redemption has nothing to do with the limitation of the estate ; where the limitation of the estate is perfectly dis- tinct, it seemed to him the rules which had been esta- blished in the cases of resulting trust did not in any degree apply Qy). 27. It would be difficult to reconcile the decision in Anson v. Lee with the principles as exhibited by Lord Eldon and Lord Redesdale. It is of course an important fact that the estate mortgaged is either the husband's or the wife's where the limitation of the equity of redemp- tion is not according to the old ownership ; but it is an equally important fact that the mortgagor had settled the estate on certain persons in default of his appointing it from them, where the equity of redemption does not technically refer to those uses. In both cases intention is to govern, and in neither, according to established principles, is that intention to be collected from the equity of redemption being reserved to the party who made the mortgage. The wisdom of the rule is proved by the circumstance that the mortgage in Anson v. Lee was in other respects inartificially and inaccurately framed. 28. The opinions of Sir Archibald Macdonald and the late Mr. Shadwell were against the total revocation, in a stronger case than Anson v. Lee, and their opinion appears to have been sanctioned by the Court. Lord Orford, who by a recovery, in 1781, had vested estates in A, B and C, in himself in fee, by two settlements conveyed the estate in A to such uses as he should appoint by deed or will, and for want of appointment, to certain uses in strict settlement, with a power of revoca- tion (//) 1 Bligh, 128. 368 WHERE A MORTGAGE IS tion and new appointment by deed or will; and he con- veyed the estates B and C to himself in tail, remainder to such uses as he should appoint by deed or will, re- mainder to the right heirs of a deceased ancestor for ever, with a power of revocation and new appointment by deed or will. Four years afterwards he joined in a deed for transferring an old mortgage on all the estates to a new mortgagee, and this deed recited only the re- covery deed of 1781, and not the subsequent settlements. The equity of redemption was reserved to Lord Orford, his heirs and assigns, and the reconveyance was to be to him, his heirs and assigns, or unto such person and per- sons as he or they should direct or appoint. The counsel were both of opinion that the settlements were revoked only pro tanto, upon the general rule. Macdonald ob- served, that it might be said that the words and unto such person as he or they shall direct or appoint, which were not to be found in any of the printed cases which he had met with, showed an intent in the party, when connected with his powers of appointment, that the transfer meant to go further than partially to revoke the former deeds. He did not, however, upon the whole, think that such an effect would be given to those words ; as he conceived that, without the aid of express words, he, or his heirs or assigns, might have directed the equity of redemption to be conveyed ; but that the case would only be considered as a case of partial revocation in order to let in the mortgagees (q). Sir W. Grant, in delivering judgment, appears to have adopted this view (r). Macdonald's view of the operation of the words " and unto such person, &c." is fully supported by the case of Wagstaff v. Wagstaff, in which, as we have seen, a trust for A, his heirs and assigns, or to such person (y) 2 Mer. 179, n. (r) Sec 2 Mer. 3.52. A FULL EXECUTION. 3£9 person or persons as lie or they should direct, was held to be no more than a common trust in fee simple, for the last words were no more than what was implied before, and expressio eorum quae tacite insunt nihil operatur (s). 29. There is another case, the doctrine in which may Martin «. J Mitchell. be doubted. I allude to Martin v. Mitchell (£), where a wife's reversion in fee of an estate was mortgaged by herself and her husband by fine, and by the mortgage deed the equity of redemption was reserved to such person or persons, &c. as the husband and wife should by any deed, to be executed in the presence of and attested by two witnesses, appoint, and in default of such appoint- ment, as the wife should by will appoint, and in default of appointment, to her in fee. Sir Thomas Plumer said this raised a question that introduced the consideration of the class of cases relating to the effect of a reservation of an interest in the equity of redemption to the husband in a mortgage made by the husband and wife of the estate of the latter. In Innes v. Jackson, where the equity of redemption was reserved to the husband alone, the Lord Chancellor was of opinion that it continued to be the wife's estate. That decision was reversed in the House of Lords, but on the ground of a distinction taken by Lord Redes dale, who came to the conclusion that there were two classes of cases : first, where the equity of redemption is reserved to the husband and his heirs, without any appearance of an intention to resettle the estate or alter the previous rights ; secondly, where from other circumstances, independent of the reservation itself, any intention to make a new settlement appears. And that case (Innes v. Jackson) fell clearly within the second class ; for the mortgage was only for a term of years, while the conveyance extended to a limitation of new 0) 2 P. Wms. 258. (0 2 Jac. & Walk. 113. B B 370 MORTGAGE A FULL EXECUTION. new uses of the fee, showing that it was executed for a double purpose. But it was open to consideration in the case before him, where the mortgage was in fee, whether there was any intention to alter the nature of the wife's estate. Now the mortgage in Innes and Jackson having been only for years, whilst the fee was resettled, certainly strongly marked the intention, but it is only necessary that the intention should appear. It would seem to be clear that the intention was so manifestly shown in Martin v. Mitchell as to exclude all doubt of the equity of redemption having been deliberately resettled. It is not disputed that a recital of the intention to settle the equity of redemption is not necessary. A reservation to the husband, jointly with his wife or separately, may be made by mistake or error, in consequence of the hus- band's liability to repay the money. But there can be no mistake — and fraud cannot be inferred — in a regular limitation to the joint appointment, by deed formally executed, of the husband and wife, and in default of such appointment, to the appointment of the wife by will, and in default of appointment, to herself in fee. No court can be authorized to read such a regular set of limitations as a mere reservation of the equity of re- demption to the wife in fee ; so that she could not have concurred with her husband in raising an estate under her power without a fine, and could not have devised her estate at all during the coverture. It is too dan- gerous to remodel such express limitations. The point however was not decided in Martin v. Mitchell. 30. We have already seen how strongly the intention must appear for a partial exercise of a power to operate as a full execution so as to prevent any further appoint- ment under it (?«). 31. But (u) Vide supra; Hcrvcy v. Hervey, 1 Atk. 5G1 ; Simpson v. Paul, Eden, 34. RE-EXERCISE OF A POWER. 371 31. But where there is a power to a husband and wife, or the survivor of them, the power itself may, as we have seen, admit of a construction which will pre- vent the survivor from altering a joint appointment (V), or the joint appointment under the power, from the terms or nature of it, may preclude the survivor from varying it, if even the power would justify the act (y). 32. An appointment to a child by a parent of so much as is equal to what it would be entitled to in default of appointment as its share, not in lieu of its share, will not operate so as to prevent the parent from making a further appointment to that child or to ex- clude it from a share of what is unappointed. So if there are four children, and the fund is 4,000/., an ap- pointment of 1,000/. apiece to three of the children cannot be held to operate as an appointment of the whole sum in equal shares to all, although no doubt in such a case the parent supposes that the excluded child will take the 1,000/. not disposed of (z). 33. If a power be badly executed, it may in many cases be re-exercised in a valid manner. As if a father make an appointment upon an improper bargain with a child, he may, having discovered that the appointment cannot be supported, make a new, independent, valid appointment under the original power (a). Supposing Lord Hardwicke said, in Hervey v. Her- vey (b), the power had been defectively executed, and the parties afterwards execute it properly, there is no doubt but the law would look upon the first execution as null and void, and that it might therefore be executed over again. 34. In (x) Supra ; Brown v. Nisbett, (z) Wilson v. Piggott, 2 Ves. 1 Cox, 13. jun. 351. (g) Supra; Simpson v. Paul, (a) Farmer v. Martin, 2 Sim. 2 Ed. 34; infra. 502. {b) 1 Atk. 567. BB2 M2 ri:-i:xi:kci.si: QF a power. 34. In Edwards v. Slater, under a settlement a power was reserved to the settlor to make a jointure to his wife, and to make a lease for 31 years, to commence after his death, for the raising a sum for his daughter's por- tions. He was tenant for life, with the ultimate reversion to himself in fee. He first made a jointure under the power, and then conveyed to trustees in fee, by bargain and sale enrolled, in trust to raise portions : the trustees then reconveyed to him in fee, and then he made a lease for 31 years, to begin after his death, for raising the portions. Hale, C. B., said one question was, whe- ther or no the power was well executed as to the lease for 31 years ; and the power seemed to be well exe- cuted by the second conveyance, though not by the first (c). (c) Hard. 410, 413. EXECUTION OF A POWER. SECTION VII. WHAT AMOUNTS TO THE EXECUTION OF A POWER WHERE THE DONEE HAS NOT AN INTEREST IN THE ESTATE. 373 10. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 24-. 26. 27. 38. 31. Poiver need not be referred to. Where there are several powers. If some referred to, it is against general words operating on others. Trollope v. Linton, with ob- servations. Execution of one poiver not an execution of another over another estate by relation. Revocation by codicil of an appointment by will. Introductory words ride over all the clauses. Though power be generally referred to, disposition may be confined. Mere reconveyance does not destroy settlement with power of revocation. Renewals of leases not an ap- pointment to the donee. Nor conversion of Three per Cents, into Long Annuities. Bill filed for transfer, an equi- table appointment. If power not referred to, pro- perty must be. Residuary devise not an ap- pointment. Slight circumstances of con- formity not sufficient. Jones v. Tucker. Forbes v. Ball. > Good if specific. Although special power, ap- pointment bad iff gift gene- ral and there is other pro- perty. 32.1 Real estate passes by that de- \ script ion, if none but that 33. J within the power. 34. Wallop v. Lord Portsmouth. 36. Standen v. Standen. 37. So leasehold estates pass by that description. 39. Nowell v. Roake : estate in moieties ; power and pro- perty. 40. Repetition of general words inoperative. 42. Hougham v. Sandys. 43. General devise with property will not pass money to be laid out in land. 44. General devise will not pass money to arise from the sale of land. 46. Powers over freehold and copyhold not good for both, although operative as to one as there ivas no other estate. 47. Napier v. Napier. 48. Churchill v. Dibben. 50. Morgan v. Surman: if good as to real estate, because no other, good as to per- sonalty. 5 1 . The words must be sufficient to pass real estate to raise the question. 53. Jones v. Curry. 54. Lovell v. Knight: disability by marriage does not alter the operation of a general gift- 55. The cases reviewed. 56. Bond by a feme covert not an ex cution of a power, semble. 57. Maddisonw. Andrew. 1. A donee of a power may execute it without referring to it, or taking the slightest notice of it, pro- vided that the intention to execute it appear. WHERE A GENERAL DISPOSITION Where a man has a power to limit uses, and no power to convey the land, if lie convey or devise the land gene- rally, and the circumstances required to the execution of the power as to subscription, witnesses, &c. are observed, the conveyance or devise shall enure as a limitation of the use, because otherwise it would be void (a) (I). In Wykham v. Wykham (&), where the power was one to jointure, Lord Eldon observed, that the conveyance there purported to be an immediate conveyance ; but where an instrument was intended to be an execution of a power, he should struggle extremely to get out of the effect of immediate words of grant, and make the instru- ment operate to create an estate, which he could put in its proper place, that is, in remainder, considering it as operating to create an estate by way of use. 2. On the same principle it is, that where a man has a power of revocation, and does an act which can ope- rate only as an exercise of it, and all incidental circum- stances prescribed by the proviso are observed, the act shall accordingly be deemed an execution of the power, although no reference whatever is made to it, and there is not any express signification of the intent to determine and disannul the estates which will be defeated by the execution of it (c) ; quia non refert an quis intentionem suam declaret verbis, an rebus ipsis, vel factis. 3. And (a) Sir Edward Clere's case, Eliz. 877 ; Cro. Jac. 31 ; Hussey's 6 Rep. 17 b; S. C. Mo. 476, case, cited, ib.; and see 12 Mod. iiom. Worme v. Webster; ib. 567, 469 ; 18 Ves. jun. 419. nom. Parker v. Sir Edward Clere ; {b) IS Ves. jun. 419. S. C. affirmed upon error; Cro. (c) Scrope's case, 10 Rep. 143 b; (I) In order to avoid repetition, wherever a question is stated as to whether a given instrument was an exercise of a power, it is to be understood, unless otherwise expressed, that the instrument was such as was required by the power. EXECUTES A POWER. 375 3. And although the revocation is required to be made in express words, 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 (d) (I). This decision ap- pears to have been made upon solid principles, for the words of the instrument which operate the revocation are express words, and do by law amount in themselves to a revocation. 4. And as a general disposition of the very property will amount to an execution of the power, so where there are several powers in one person over different estates, a like disposition of them all will operate as an execution of all the powers (e). 5. If a man have two general powers over the same estate, with different circumstances, and do an act with- out referring to the powers which may be valid as an exercise of one of them, it will be deemed an execution of that power which will support the disposition. 6. This was decided in Udal v. Udal (/), where the settlor 2 Ro. Abr. 262 (C) pi. 1 ; and and see George v. Lousley, 8 see Frampton v. Frampton, as it East, 13. is said accordingly, 6 Rep. 144. b ; (d) Guy v Dormer, Raym. 295 : see the case in Mo. 735 ; Snape and see 3 Cha. Ca. 91. v. Turton, Cro. Car. 472; Deg ( e ) Countess of Roscommon v. v. Deg, 2 P. Wms. 415; Sel. Fowke, 4 Bro. P. C. 523. Cha. Ca. 44; Fitzgerald v. Fau- (f) Al. 81 ; Fitzgerald v. Fau- conberge, Fitzg. 107; Roscom- conberge, Fitz. 207. mon v. Fowke, 4 Bro. P. C. 523 ; (I) Mr. Powell, Pow. p. 1 15, says, that this point happened not to be material, as the event of this case would have been the same whe- ther the revocation had been good or not. The case, however, ap- pears to have depended on this point solely. There was a term of five years, which the jury found had expired. Perhaps Mr. P. was led to think that this referred to a fine levied, and that a title was gained by non-claim, B B 4 37C> WHERE A GENERAL DISPOSITION settlor was under the settlement tenant in tail, with remainder to such persons, and for such estates, as he should limit by indenture, and for want of such limita- tion, to several persons in strict settlement, with the reversion to his own right heirs, with a proviso that upon tender of 5 5. he might revoke those uses and limit others. By a deed reciting the uses of the settle- ment and the proviso in it, he made a new limitation to himself in tail, with remainder over, " according to his power and the clause in the settlement." He did not tender the 5 s., and the execution of the power was excepted to. But the exception was clearly disallowed, both for that he had a double power by the first inden- ture ; the one to limit other uses to such persons and lor such estates as he pleased, the other to revoke the uses limited by the first indenture, and to limit new uses. And where he limits uses generally which cannot stand by the power reserved by the proviso, for lack of tender, the law will refer the limitation to the power he had to limit other uses ; and secondly, for that the second limitation is expressly made " according to his power," which refers to that power which he pursued. It will be seen that the first power did not overreach his estate tail limited by the settlement, but that was unimportant (except as evidence of his intention to exercise the general power of revocation), because he relimited the estate to himself in tail. 7. But 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 comprehensive words in the same instrument (g). Troiiopeu. 8. In Trollope v. Linton (A), where the testator had two (g) Att. Gen. v. Vigor, 8 Ves. Maundrell, 10 Ves. jun. 216. jun. 256. See Maundrell v. (A) 1 Sim. & Stu. 477. Linton. EXECUTES SEVERAL POWERS. 377 two powers, one over his own estate, and another over his wife's, his will was deemed an execution of both, although he recited the former and not the latter, as an intention appeared to exercise them both, and he professed to act in exercise of any power he had. The case was a very peculiar one. By marriage articles the real estate of the wife (who was an infant, and whose real estate therefore was not bound) was agreed to be settled to certain uses, including a full exclusive power in the husband to appoint to the children, and the estate was settled on them in default of appointment ; and her leasehold estates were agreed to be settled to the same uses in the usual way. By other articles his estate was agreed to be settled, but the sons took estates tail, not subject to be defeated by any appointment. In default of issue a general power of appointment was reserved to the husband. The leaseholds were held to be well set- tled in equity, so that the husband had powers, although very different ones, over two estates, viz. his own real estate, and his wife's leasehold estates, and a power was agreed to be reserved to him over her real estate. By his will he gave her a limited interest in his mansion- house, and then recited the articles for settling his estate, and the power of appointment thereby reserved to him, which he described " as a power intended to be exer- cised by that his will;"' but he did not at all refer to the articles for the settlement of his wife's estate, or his power under them. He then devised to his wife part of her property comprised in the articles, without noticing that fact ; and then, by virtue of every power enabling him in that behalf, he devised all the estates comprised in his own articles, and all other the manors, heredi- taments and real estate belonging to him, or over which he had a power of appointment, to the use of trus- tees for 500 years, to raise portions for his younger children, 378 WHERE A GENERAL DISPOSITION children, and subject thereto, lie gave all his estates to such uses and trusts, and with such powers, as by the said articles (referring to his own) were limited and de- clared, or as near thereto as circumstances would admit. And he directed that all persons claiming any benefit un- der his will, should, under the doctrine of election, be bound to give effect to every disposition contained in it. The widow elected to take her real estates against the will : but as it was held that the leaseholds were bound by it, it became necessary to decide whether the will operated as an execution of the power over her estates; and that point was also argued in order to ascertain whether a case of election was raised, for of course no election was raised unless an intention appeared to dispose of her estate. In favour of the intention there was an actual disposition, although in her own favour, of part of her property ; and the first charge created, viz. for children's portions, was autho- rized by the power in her articles. On the other hand, the power over his own estates was fully exercised, and the estate expressly devised by its description, although to uses not warranted by it; whereas the power over hers was not referred to, and although every other power was referred to, yet general words only were used in the description, and the further uses were not war- ranted by the power over her estate ; and the difficulty as to the words passing her estate, was increased by the circumstance that he had, after the marriage and before his will, purchased real estates, which the report states " were conveyed to the usual uses to bar dower," by which we are no doubt to understand that he had a general power of appointment over them. The Vice- Chancellor (Sir John Leach), however, held that the circumstance of the testator having recited the power of appointment over his own estate in kasc verba, and yet made EXECUTES SEVERAL POWERS. 379 made a disposition inconsistent with that power, and the expression that all persons claiming; any benefit under his will should be bound by the doctrine of elec- tion to give effect to all the dispositions in his will, afforded evidence of intention against the argument for excluding the wife's estate from the operation of the power. 9. And in a later case (z), where a father had a power to appoint amongst his children 3,000 I., secured by his own covenant, and also freehold estates, of which he was tenant for life under another settlement, and had real and personal property of his own (A"), he, by his will, first directed all his debts, funeral and testamentary expenses, to be paid ; then, " by virtue of all powers and authorities enabling him thereto," he devised all his messuages, lands, &c. and real estates, to his two sons, their heirs, &c, to sell ; and he gave to them, their executors, administrators and assigns, all the rest of his monies, &c, and personal estate and effects, to sell ; and then his debts, &c. were to be paid, and the resi- due to be invested for his children. Some of the gifts exceeded the power; and he directed his children to accept the provision in satisfaction of the settlement made upon his marriage, or any appointment under it, or any subsisting deed. The Master of the Rolls held the will to be an execution of both the powers. He considered the words " by virtue of all powers," &c, as manifesting a plain intention to pass all estates which he could affect, by virtue of any power vested in him. The excess in the execution he considered did not show a contrary intention. As to the clause which directed that the provisions made by his will should be taken in satisfaction of every benefit to which his children might be {i) Bailey v. Lloyd, 3 Russ. 330. (k) See 5 Russ. 34-2. 380 WHERE A GENERAL DISPOSITION be entitled under the settlement, this clause proved that he had the settlement in contemplation, and the mean- ing was, though awkwardly expressed, that this being an exercise of his power under this settlement, it must be taken by the children as a satisfaction of all benefit intended for them by his settlement. There was, as to the present question, no difference between the estates subject to the power, and the 3,000 1, subject to the power, inasmuch as a subsequent part of the will applied generally to all personal estate (I). 10. And if an estate be settled to uses with a power of revocation, and afterwards another estate be devised to the uses declared by the settlement of the settled estates, an execution of the power of revocation in the settlement will not affect the devise by reference to the estate in the will (J). 11. If a person having real estate of his own, and a power of revocation and new appointment over a settled estate, reserved by himself upon an appointment made by himself under a power, make a devise which passes only (I) Per Lord Eldon in Jones v. Wilkinson, Line. Inn Hali, 22 June 1813, MS. (I) The 3,000/. remained to be paid under the father (Lloyd's) cove- nant. The real estate was settled by the wife's father. Upon the marriage of one of Lloyd's daughters, l-7th of both the estates and the 3,000 1, was appointed to her and settled, and Lloyd covenanted to place her on an equality with his other children. Lloyd no doubt in- tended, as he expressed, to exercise his power over the real estate, although he called them all his estates, which, as he was tenant for life of them, was in a limited sense correct ; but he made no men- tion of any power in disposing of his personal estate. He probably intended to dispose only of his own personal estate, discharged of the 3,000/., which he intended should be satisfied by the gift of his per- sonal estate, which of course in effect included the 3,000 /. This ex- plains the clause as to satisfaction. EXECUTES A POWER. 381 only the real estate not subject to the power, a clause in the will revoking all former wills, testamentary appoint- ments and papers, will not revoke the appointment by the deed, although the estates thereby appointed were not to arise till his own death, and although the effect of the revocation would be to revest in him the fee under the original settlement, which would pass by the devise in the will (?/z). 1 2. And although the funds in a residuary gift in a will are constituted partly of funds over which the testator has a power, and partly of funds his own pro- perty, yet a codicil, noticing that the testator had given " the residue of his estate" to the legatee, and a revoca- tion of the bequest, and a gift of " the residue of my estate and effects" unto another legatee, will not operate on the gift in the will, as far as that was an execution of the power, but the residuary legatee will still remain entitled to that fund («). 13. Where the introductory words in a will purport that the will is made only by force of the power, every clause is to be referred to the power, if that construction is necessary to effect the intention (0). 14. But although a will be expressed to be made in pursuance of the poiuer, yet if the testator appears to dispose of his own property only, the power will not be executed by the will. This was decided in Lawson v. Lawson (p), where the L * ws °n ». K1 J Lawson. husband and wife being seised in fee of a copyhold estate, (???) Hougham v. Sandys, 2 Sim. doubtful one. Lord Eldon's view 95. See pp. 117,148. The clause in 8 Ves. 592, was perhaps the is not stated in the report. true one. (n) Roach v. Haynes, 6 Ves. (0) Monk v. Mawdsley, 1 Sim. jun. 153 ; 8 Ves. jun. 584, (where 286. the facts are correctly stated). (^?) 3 Bro. C. C. 272. But the case is a peculiar and 382 WHERE A GENERAL DISPOSITION estate, settled it to certain uses, with a power of revoca- tion, which they exercised, and vested the estate in trustees in trust for the husband for life, remainder for the wife during her widowhood, (and 20 I. a year for her if she married again), remainder for such uses, &c. as the husband should appoint amongst their children. He had purchased other copyholds of the same manor, which were surrendered to trustees in trust for such uses, &c. as he should appoint by his will, with three witnesses, and in default of such appointment, in trust for him, his heirs, &c. (I) ; and he was seised of freehold and other copyhold estates. By his will, after reciting that he had surrendered his copyhold messuages, &c. and all other his messuages, &c. of what tenure soever, to trustees, in trust for such trusts, intents and purposes as he should declare by his last will and testament in writing; therefore, in pursuance of the power given him (?*), he devised all his copyhold messuages, &c. and all other his messuages, lands and hereditaments situate within the manors, &c. or elsewhere in the said county of Durham (r), to his wife and others, and their heirs, &c, as trustees for several purposes therein contained, subject nevertheless to the estate thereinafter directed to his wife, of his messuage, &c, also to her claim forth and out of her own estate, by virtue of the said settlement made thereof after marriage : in trust that his trustees ' should raise and pay certain sums to his sons and a grandson, and also to raise 300 I. among his children or a grandson, as his wife should appoint ; then to permit his wife to take the rents for life, and then to his sons and their issue in strict settlement. The Master re- ported (r) Reg. Lib. (I) This is according to the Register's book. EXECUTES A POWER. 383 ported that the estate in settlement passed by the will ; but Lord Thurlow, according to Brown's report, over- ruled the Master's report. He said, that general words of gift will apply to a power where the testator could not give the property otherwise than by virtue of the power, but words of gift do not in general apply to the execution of a power. In the beginning of this will, the testator means to dispose of his own estates in opposition to his wife's, which he calls her own estates, which con- trasts the two. If he meant this as an execution of the power, he must have supposed the power extended to a disposition to grand-children. If this was to be held to be an execution of the power, it would go beyond any of the cases. It seems difficult to acquiesce in this decision. The terms of the will were sufficient to include the estates in the settlement ; and where he contrasts his estate with what he called her own, it was for the purpose of refer- ing to the several interests she was to take in the several properties he was then disposing of, viz. a life estate in ■ his own property, and the interest limited to her by the settlement out of the settled property. The reference would have been improper if he had not been disposing of the settled estate, and was quite proper as he was making a disposition of it. The circumstance that he provided for his grandson, which the power did not authorize, was entitled to no weight, for he was also disposing of other property which he could give to the grandson. It is rare that in a general disposition of property within a special power, and property belong- ing to the testator, some objects are not introduced which the power does not embrace ; but that, as we have seen, does not prevent the will from operating, as far as it may, as an execution of the power. The case appears by the Register's book, to which reference 384 WHAT ACTS ARE AN APPOINTMENT. reference has been made, to be more strongly in favour of the execution of the power than it appears by the report ; and by a note to the new edition of Brown, we learn that Lord Thurlow, although he expressed an opinion on the case, did not decide the point, but di- rected an issue whether the estates passed by the will of the testator according to the custom of the manor where- of the same was holden. I do not understand why the issue was so framed : no further proceedings are stated by either of the learned editors of Brown. 15. Where trusts are raised with a power of revoca- tion, the settlement will not be defeated by the mere act of the trustee re-conveying to the settlor (s). 16. So where an executrix, who was tenant for life of a college-lease under the will, with a power to appoint the estate by deed or will, with a gift over in default of appointment to a stranger, renewed the leases at her own expense, it was held that the renewals did not operate as an appointment in her own favour. It did not appear whether she had executed counterparts of the leases. But if she had been tenant for life only, the renewal of the leases would after her death have enured to the benefit of the devisee in remainder ; and it was held that the renewals, supposing counterparts were executed, could not amount to an appointment by her in her own favour ; for acts of ownership by a tenant for life, with a power, do not make him owner, unless they are such acts as are prescribed by the power for vesting the property (J). 17. Again, where under a will a widow was tenant for life of all the personal estate, and after her death one moiety was to be at her entire disposal either by will or otherwise, (5) Ellison v. Ellison, Ves. (0 Brookman v. Hales, 2 Ves. jun. 656. & Bca. 45. GENERAL DEVISE NOT AN APPOINTMENT. 385 otherwise, and the other moiety was given over, and she was made executrix (I) ; she converted Three per Cents. Consols — the bulk of the property — into Long Annuities in her own name, and the Court held that the act did not amount to an execution of the power, the conversion being plainly made to increase her income (u). It may be observed, that she actually did by this conversion increase her income ; she therefore consumed a part of the capital, as she had a right to do, and to that extent her acts amounted to an appointment. 18. But if the tenant for life, with such a power, file a bill for a transfer of the fund where it is vested in trustees, the demand by the bill is a sufficient indication of intention to take the fund, and the Court will decree the transfer without the execution of a formal appoint- ment in writing (.t). 19. Where, however, the power is not referred to, the property comprised in it must be mentioned, so as to manifest that the disposition was intended to operate over it ; the donee must do such an act as shows that he has in view the thing of which he had a power to dis- pose (y). 20. This question mostly arises upon wills. It is firmly settled, that a mere general devise or bequest, however unlimited in terms, will not comprehend the subject of the power unless it refer to the subject, or to the {u) Reith v. Seymour, 4 Russ. M'Leroth v. Bacon, 5 Ves. jun. 263. 159; Dillon v. Dillon, 1 Ball & (x) Irwin v. Farrer, 19 Ves. jun. Beatty, 77; Maples v. Brown, 86. 2 Sim. 327 ; Hunloke v. Gell, I (y) See 1 Atk. 560; 2 Bro. Russ. & Myl. 515; Sloane v. C.C. 303; 3 Ves. jun. 301 ; Low- Cadogan, App. No. 10, as to the son v. Lowson, 3 Bro. C. C. 272 ; point on the power. (I) This is not stated, but she must have been personal representa- tive. c c 386 GENERAL DEVISE the power itself, or generally to any power vested in the testator (z). 21. In the case of Churchill v. Dibben, it appears by the Registrar's book, that in a settlement, a term of 500 years was created upon trust to raise 1,000 I. and pay the same as Elizabeth Brown, the intended wife, should by deed or will appoint, and in default thereof to be paid to her executors or administrators. By her will she gave some estates which she had power to dispose of to different persons, and after giving some pecuniary lega- cies, she " gave all the rest of her goods, chattels, estates, and estate whatsoever, undisposed of," unto A, his heirs, executors, administrators, and assigns. It was declared by the decree, that as to this sum of 1,000 I. the said testatrix having made no particular appointment thereof, the same will belong to the defendant, her executor (a). Lord Hardwicke, according to the report recently published (b), said, as she had made a will and named an executor, though no particular appointment of this money, it was insisted it should go to the executor ; on the other side it was contended, as there was no par- ticular appointment of it, it was to go to her general representative, her husband, not to her executor, who was made such for a particular purpose only. He thought there was no ground for this : a feme covert with the consent to' (z) Moulton v. Hutchinson, 1 Ves. jun. 39S; Bcnnct v. Abur- Atk. 558; cx-parte Caswell, 1 row, 8 Ves. jun. 609 ; Bradby v. Atk. 559; Andrews v. Emmott, Westcott, 1 3 Ves. jun. 445 ; Doe 2 Bro. C. C. 297 ; Buckland v. v. Bird, 1 1 East, 49 ; Lowes v. Barton, 2 H. Blackst. 130; Blake Hackward, 18 Ves. jun. 168. v. Bunbury, 1 Ves. jun. 525; (a) Reg. Lib. A. 1753, fob Hales v. Margerum, 3 Ves. jun. 252 ; and see Tempest v. Sabine, 299; Langham v. Nenny, 3 Ves. App. No. 11, MS. jun. 467 ; Croft v. Slee, 4 Ves. (b) 2d Lord Kcnyon, 2d part, jun. 60 ; Nannock r. Horton, 7 68. NOT AN APPOINTMENT. 387 consent of her husband may make a will, and that will, according to late cases in the Spiritual Court, will have probate, and the executor then become full and com- plete representative ; for the husband cannot have ad- ministration. The money belonged then to the exe- cutor, and became part of her assets. 22. Slight circumstances of conformity or reference will not amount to a sufficient indication of the inten- tion : where the power is given to the husband after the death of his wife, and he makes a general disposition, to take effect after his wife's death, that will not of itself be deemed evidence of his intention to execute the power (c) : if the subject of the power be three per cent, consols, and the testator give some three per cent, con- sols as pecuniary legacies, the stock subject to the power will not, on that ground alone, pass (d) : the instrument being executed in the manner required by the power goes for nothing (e) ; 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 disposition (f) ; nor is it material, ac- cording to some authorities, that the precise sum over which the power rides is given, and there is no other fund (g). This is the strongest instance of the rule that can be put, if such be the law. Parol evidence cannot be received of the testator's intention to exercise his power (A). 23. Some (c) Andrews v. Emmott, 2 Bro. C6 ; 1 Wils. Ch. Rep. 24; Webb C. C. 297 ; Bennet v. Aburrow, v. Honnor, 1 Jac. & Walk. 352 ; ubi sup. and see Forbes v. Ball, 3 Mer. (d) Nannock v. Horton, ubi sup. 437; Lownds v. Lownds, 1 You. (e) Andrews v. Emmott, 2 Bro. & Jerv. 445. C. C. 297. (h) Moulton v. Hutchinson, (/) S. C. 1 Atk. 58 ; Standen v. Standen, (g) Jones v. Tucker, 2 Mer. 2 Ves. jun. 589. 533. See Jone3 v. Curry, 1 Swan. C c 2 : ^S GENERAL DEVISE NOT '2D. Some of tlif cases which are now treated as having established an inflexible rule, great Judges have taken pains to distinguish. Lord Rosslyn referred the judgment in Andrews v. Emmott to the particular cir- cumstances in that case, which certainly went far to show that the power was not intended to be executed (i). Lord Alvanley stated the true rule, as established by Andrews and Emmott to be, that to execute a power there must be a direct reference to it, or a clear reference to the subject, or something upon the face of the will, or, independent of it, some circumstance which shows the testator could not have made that disposition without having intended to comprehend the subject of the power (jk). The case of Langham and Nennv is an in- stance where the intention would no doubt have been defeated if a general bequest had operated as an execu- tion of the power ; for there is no reason to suppose that the husband had his wife's property in view (/), and Lord Alvanley stated, that in his opinion the testator did not mean to include it under the words " my estate." Lord Alvanley stated his perfect concurrence witli Standen v. Standen, which we shall presently consider, and that he was much inclined to construe the execution of powers, particularly where they are unconfined, as liberally as may be, still conforming to the rules laid down. Sir William Grant said, it was always a question of intention whether the party meant to exercise the power or not. Formerly it was sometimes required that there should be an express reference to the power. But that is not necessary now. The intention may be col- lected from other circumstances ; as that the will includes something the party had not otherwise than under the power ; (i) 2 Ves. jun. 593; and see (k) 3 Ves. jun. 301. 3 Ves. jun. 470. (I) 3 Ves. jun. 467. AN APPOINTMENT. 3S9 power ; that a part of the will would be wholly inopera- tive unless applied to the power (in). 24. Although the rule is well settled, vet it is diffi- ;J on f "■ te J lucker. cult to reconcile the cases. In Jones v. Tucker (w.) a woman was tenant for life of a small estate, which at her death was to be sold, and 100/. paid to such person or persons as she should Jty her last will appoint. By her will she gave "the sum of 100 /., likewise the whole of my household furniture, plate and linen, &c." to a legatee, whom she appointed executor, and directed what rent was due to her should discharge her rent and fune- ral. It was assumed that the testatrix had no property except the furniture, &c, which sold but for a few pounds, which were applied for her funeral ; but Sir W. Grant held, that the power was not well executed. He said, that if a person having no property at all, and only a power over a certain sum of money, give that single sum, little doubt can arise as to the intention. But he thought that the Court could not get at the fact. He observed that she had some property. Then what, he asked, is to be the quantum of property that shall fur- nish the criterion for deciding whether a testator making a bequest is or is not exercising a power ? It is not like the inquiry whether there be anything but copyhold to answer a devise of land. The question there was, whether there was anything for the will to operate upon at the time it was made. A will of personalty speaks at the death. The state of that description of property at the time of the will does not furnish the same evidence as to the intention. In his own private opinion, he thought the intention was to give the 100 1, which the testatrix had a power to dispose of; but he did not con- ceive that he could judicially declare the power to have been executed. 25. In C»») S Ves. jun. 6i0i (») 2 Mer. 533. C c o 390 SPECIFIC GIFT 25. Iii a previous case before Lord Eldon (0), where lie held that a general gift of three per cent, consoli- dated bank stock, not being specific, did not amount to an execution of a power over the like stock ; he drew the distinction between real and personal estate, and observed, that every gift of land, even a general residuary devise, is specific ; only that to which the party is enti- tled at the time can pass. Forbes v. 26. In Forbes v. Ball (p), a testator gave to his wife 500 L, and it was his will and desire that she should dis- pose of the same amongst her relations as she by will might think proper ; and the residue of the estate was given to her for life, and then over. By her will she gave to trustees " the sum of 500 /.," to invest it for her sister for life, and then to her children ; and she made her sister residuary legatee. Sir W. Grant held, that the words in the testator's will raised a trust for the wife's relations, subject to her appointment, and that the same was well executed by her will in favour of her sister and her sister's children. If this case can stand with Jones and Tucker, it must be on the ground that the donee of the power was a trustee of the fund, and the relations were entitled to the fund in default of appointment. But there is nothing special in the latter circumstance, and the former can scarcely take the case out of the common rule. 27. In some of the cases questions have arisen whether the particular gifts were specific, and this must depend upon the general law as to what amounts to a specific legacy. 28. In Webb v. Honor (q), a will directed certain property to be invested in the public funds for one for life, (0) Nannock r. Iiorton, 7 Ves. (/;) 3 Mer. 437. jun. 391. (fj) 1 Jac. & Walk. 352. AN APPOINTMENT. 391 life, and then as he should appoint by will, and in de- fault of appointment to his children. The investment was made in the three per cent, consols ; and the donee by his will gave the whole of his personal estate, consisting of money invested in any of the public funds, household furniture, plate, money, watches, trade, and the whole of such property as he might be in possession of or entitled to at his decease, to his wife, and the gift was held not to be sufficiently specific to pass the money invested in the public funds, which was subject to the power ; and the Master of the Rolls (Sir Thomas Plumer) let drop some expressions, that if evidence could be let in to show that he had no such funds of his own, and supposing this to be a specific bequest, yet the diffi- culty would remain whether the circumstances esta- blished an intention to execute the power. But if the gift was specific, and the testator had no other such fund, there would not, it is apprehended, have been much difficulty in the case. 29. Accordingly, in Lownds v. Lownds (r), where a man was tenant for life of a sum directed to be invested in the funds, (which was done), with a general power of appointment by will ; he by his will directed 500 1, to be sold out of the funds, and the 2,000/. to remain in the funds during his wife's life, and the interest to be divided amongst his wife, and his son and daughter; and he directed that 1,000 1, should remain in the funds for his daughter to receive the dividends for life, and then to her children ; and " the other 1,000 /. that I have in the funds" to his son at his wife's decease. The Chief Baron (Alexander) held, that the will was a good execution of the power. The gift, it will be observed, was clearly specific ; (r) 1 You. & Jerv. 415; and see Walker v. Mackie, 4 Russ.76 et infra. C C 4 302 SPECIFIC GIFT AN APPOINTMENT. specific; and although the power was not referred to, and the property given in no respect corresponded with its actual state of investment, yet the description ad- mitted of no doubt, for the sum directed to be invested was a moiety of* 5-20ths of 20,000 /., which was equal to 2, 500 Z., the sum disposed of by the will, the whole of which was sufficiently described as invested in the funds, and 1,000/., part of it, was described as "the other 1,000/. that lie had in the funds" (1). 30. In a case where a man had vested an estate in trustees to sell, and declared that the purchase-money should become part of Ms personal estate and effects, and that the same should go as he should appoint by deed or will, executed in a given manner ; and in default of any such direction, in trust for his right heirs in fee: a will made the same day, by which he gave certain personal property to the same trustees to sell, and also gave to them " all his personal estate and effects whatsoever," except as thereinafter mentioned, and there was no ex- ception ; was held not to include the property subject to the power, because it was not referred to, and the Court considered the particular directions in the will as applying only to the specific property given by it (s). 31. And even where the power is confined to certain objects, and the gift is in favour of the very objects, yet if it is general in its terms, and there is property not subject to the power to answer the description, the power (6) Lowest. Hackward, 18 Ves. jun. 168 ; a very doubtful case. (I) Walker v. Laxton, 1 You. & Jerv. 557, decided by the same learned Judge, admitted of no doubt. The testatrix recited that her power was only i?i default of issue, and then she proceeded to dispose of the 2,200 /., the fund, amongst certain persons and their heirs. Clearly she only intended them to be paid if there should be a default of issue. SPECIFIC DEVISE AN APPOINTMENT. 393 power will not be deemed to be well executed, and the more especially if the power is exceeded, and the excess will not be considered as relating to the property not within the power so as to enable both of the properties to pass by the disposition. Tims in Doe v. Bird (t), a man was under his marriage settlement tenant for life of an estate, with a power to appoint to the children for such estates, &c, as he should think fit, and he had an estate in fee of his own, and by his will he gave to each of his daughters 200/., and then devised all the rest, re- sidue and remainder of his messuages, lands, &c. and personal estate, &c, after payment of his debts, legacies, and funeral expenses, to his son. The Court were of opinion that the power was not executed by the will. There was nothing in it referring in any manner to the power, nor from whence his intention to execute it could be inferred, and the charge of debts and funeral ex- penses on the lands, &c. devised, showed his intention to pass such lands only as were subject to those charges. 32. So far the rule is common to both real and per- sonal estate. If the property is described it will pass. But the very natures of real and personal estate esta- blish some distinctions on this head. Every disposition of real estate is specific, but every description of it is not wholly so. A general devise of " all my real estate" may mean my own real estate, and not the real estate subject to the power ; but even in that case it operates, however general in its terms, as a specific devise. It is not so of personal estate ; for a gift of all my personal estate will carry any personal estate which I may possess, and therefore it is not specific, and consequently, although I happen to have none, yet it will not apply specifically to the personal property within the power. 33. Upon (t) 11 East, \Q. See Doe v. Reticle, 8 Term. Rep. IIS. 394 SPECIFIC DEVISE 33. Upon these distinctions it has been held, that where otherwise part of the disposition would be void and the words remain unsatisfied, the words, if specific in their nature, will Apply to the real estate in the power. There- fore if the subject of the power be real estate, and the donee make a general devise of all his real and per- sonal estates, and has no real estate, the estate subjected to his appointment will pass (u), for the gift as to the real estate is specific, and as there is no other subject for it to attach upon, it must refer to that over which the testator has a power. Wallop v. 34. This was decided in Wallop v. Lord Ports- mouth, mouth (x) y where a real estate was settled, with a power to the wife to appoint it amongst her children, but af- terwards by an act of Parliament the estate was vested in trustees for sale to pay debts, and invest the residue in other estates, to be settled to the like uses. The lady having survived her husband, by her will desired her debts, legacies, and funeral expenses to be first paid out of her real and personal estate, which she charged with the same ; she gave legacies to her younger children ; and, lastly, all the residue of her goods, chattels, pic- tures, furniture and estates, both real and personal, whatsoever and wheresoever, she died possessed of, she gave to her eldest son in fee, and as she had no other real estate, her will was held to be an execution of the power. 35. In the great case of Hurst v. Winchelsea (y), a woman («) Standen u. Standen, 2 Ves. No. 12, MS.; Jones v. Curry, I jun. 589 ; affirmed in Dom. Proc. Swanst. 66 ; Wils. Cha. Itep. nom. Standen v. Macnab, Bro. 124; Hougham v. Sandys, 2 Sim. P.C.byToml. 193. See Degu. Earl 95. of Macclesfield, Sel. Cha. Ca. 44. (.r) Appendix, No. 12. Morgan v. Surman, 1 Taunt. 289 ; (y) 2 Lord Kenyon, 444 ; I Wallop v. Lord Portsmouth, App. Burr. 879; 1 Blj. 187. AN APPOINTMENT. 395 woman on her second marriage settled her estate to herself for life, and on her son by her first marriage and his issue, in strict settlement, remainder to him in tail, and in default of such issue, to such persons, &c. as she, whether covert or sole, should by deed or will appoint, and in default of appointment, to herself in fee. By her will, made shortly afterwards, not noticing her power (a), she gave some legacies, and then gave to her son, his heirs and assigns for ever, all her real and per- sonal estate, plate, jewels, &c, and all her writings, &c, but first subject to the payment of all her debts, funeral expenses, legacies, and servants' wages, and all other debts, and she thereby charged the same therewith. Few cases were ever more contested ; but it was assumed throughout that the will operated as an execution of the power, and the only question argued was, whether the son did not take by his better title, descent. 36. In Standen v. Standen (b), a man by his will standen i>. directed his estate to be sold, and gave the money arising from the sale and the residue of his personal estate in trust for his wife for life, and after her decease, as to one moiety for such person or persons as she should by any deed or writing, or by will, with two or more witnesses, appoint, and for want of appointment, over. The real estate was not sold. The widow by her will, after disposing of some specific articles and a gold watch and some jewels, which she described to have been her husband's, gave all the residue of her estate and effects, of what nature or kind soever, and whether real or personal, and all her plate, china, linen, and other utensils, which she should be possessed of, interested in, or entitled to at the time of her decease, subject to, and after payment of her debts, funeral and (a) See 2 Keny. 452. (b) 2 Ves. jun. 589. 396 SPECIFIC DEVISE and testamentary expenses, and specific legacies, to her friend ./. H. for his own use, and appointed him her executor. She had no Other real estate. Neither Wallop v. Lord Portsmouth, nor Hurst and Lord Win- chelsea was cited, hut it was held that the will was ;t good execution of the power over the produce of both the real and personal estates. Lord Rosslyn observed, that she was entitled for life to the income of the re- sidue of the real and personal estate, and a moieiv was given to her absolute disposal, by any deed or writing, or by her will attested by two witnesses. She was not limited as to objects; and as to the mode, it was as ample a latitude as any one could have. It was a little hard to explain it was not her estate. How could she have had it more than by the enjoyment during her life, and the power of disposing to whatever person, and in whatever manner she pleased, with the small addition of two witnesses? By her will she gives all her estate and effects. It is hard to say that, using that expression, she meant to distinguish and not to include this, which was as absolutely hers as any other part of her property. The other words he thought did not add much. But take it according to the strict technical rule in Sir Edward Clere's case, that a general disposition will not dispose of what the party has only a power to dispose of unless it is necessary to satisfy the words of the disposition. The testatrix had no other real estate. He was bound to satisfy all these words upon the technical rule. He could satisfy them in no other way. He could not avoid supposing, what every one must be convinced she meant, that she made no difference between what she had from her husband and her other property. The decree declared the will a good execution of the power to appoint a moiety of the monies arising AN APPOINTMENT. 39' arising from the real and personal estates of the tes- tator (c). Sir W. Grant observed, in a later case (d), that the argument of Lord Rosslyn does go the length that the very same words that are sufficient to dispose of a person's own property are sufficient to dispose of pro- perty over which he has an absolute power of appoint- ment. If that would be sufficient, there would be no distinction between power and property ; but he showed that the distinction still exists. He agreed that the decision in Standen v. Standen was right, and admitted it as a binding authority (I). It was evident that the testatrix was applying her will to the subject of her power, and if he found that she was speaking of the subject of her power, an express reference to the power was not necessary. 37. So if the grift, though of personal estate, is specific, Grant «. . Lynam. the property will of course pass, and for this purpose a gift of leasehold estates by that term has been considered sufficiently specific. This was decided in Grant v. Lynam (e), where the power was to the testator's wife to dispose of a leasehold house, &c, given to her for life, to the testator's family, and she by her will gave all her leasehold property, monies, &c. and personal estate, subject to the payment of her debts, to trustees for one of the family, and she had no other leasehold estate than that which was subject to the power: the Master of the Rolls said it was well settled that if the donee of a power has no freehold estate except that which is the subject of (c) Standen v. Macnab, 6 Bro. (r/) 1 3 Ves. jun. 452. P. C by Toml. 193. Seep. 201. (c) 4 Russ. 292. (I) He seems to refer the decision to the circumstance that the will was attested by three witnesses, with reference to her power to dis- pose of the estate. This is erroneous. 398 SPECIFIC GIFT AN APPOINTMENT. of the power, the will of the donee giving freehold estate, will be so far deemed an execution of the power, for otherwise the will as to that property would wholly fail. There was no distinction between freeholds mid leaseholds in the nature of the subject, the difference was only in the quantity of interest ; and there did not appear to him to be any solid ground upon which it could be maintained that a gift of leasehold, where the donee of a power has no other leasehold than the sub- ject of the pow r er, was not equally to manifest an inten- tion to execute the power as a gift of freehold under the same circumstances. A general gift of monies, securities for money, and other personal chattels, which are in their nature subject to constant change and fluc- tuation, stood upon very different principles ; and as to them, the will must refer to them as the subjects of the powder, or they will not pass. Walker v. 38. In Walker v. Mackie ( f), a woman, tenant for life of a leasehold estate and some funded property, with a power, by her will gave some pecuniary legacies, and then gave " all the rest of her bank stock to her god-daughter, with her wearing apparel, goods and chattels of every kind whatsoever, and all other property she possessed at the time of her decease, excepting 50 Z. outof her bank stock, which she gave to her executors. She had no stock of any sort of her own. The Master of the Rolls held the will a good execution of the power as to the stock, and that the pecuniary legacies were payable out of it, and that the will was also a good execution of the power as to the leasehold estate, it being plain that she meant to describe the property over which her power extended under the words " all other property which she pos- sessed" by excepting out of it 50/. of her bank stock. This (f) 4Rus8.76. GENERAL DEVISE NOT AN APPOINTMENT. 399 This case involved three points, and none of them presenting any difficulty : 1, the gift of the stock was specific — my hank stock ; 2, although the gift of the pe- cuniary legacies was general, and standing hy itself would not have operated as a charge of the property under the power, yet being followed by a gift of the residue of her bank stock, the legacies themselves were of course part of the same subject ; 3, the gift of the residue of the property was held to include the leasehold on account of the exception out of the general gift of 50 /. of her bank stock, which proved that she was dealing with the subject of the power. It would have been a strained construction to refer the exception of the 50 1, to the corpus of the bank stock itself, and so have left the remainder of the gift naked and unex- plained, in which case it would not have operated under the power. 39. Although the testator lias the entirety of an estate, Noweii ». yet if any share of it is vested in him only for life, with a power of appointment, a general devise of all his estates will only pass the share of which he is seised in fee, and a direction which might properly be applied to the entirety will not be construed to enlarge the gift. This was decided in Nowell v. Roake (g), where one moiety of an estate was settled by the testatrix to her husband for life, remainder to herself for life, remainder to such uses as she should appoint by deed or will, and for want of such appointment, to the children of the marriage, with remainders over, and the testatrix after- wards bought the other moiety, which was conveyed to her in fee, and she had no other real estate, it was held in the Court of Common Pleas that a devise by her of all her freehold estates to one for life, on condition that out (o-) 2 Bingh. 497, and 10 Moore, 1 1 3. 400 GENERAL !■•!:> I-!. WOT out of the rents thereof he should from time to time keep such estates in proper and tenantable repair, with remainders over, passed the entirety of the estate, that is, operated at once as an execution of her power Over one moiety, and a devise of her interest in the other. The Court relied upon the general intention, and laid some stress upon the condition to keep the estate in repair, as the devisee could not keep an undivided moiety in repair. This decision, however, was reversed in the Court of King's Bench (/i), and that reversal was affirmed in the House of Lords (i). Lord \l ynford, in the House of Lords, observed, that it was not his inten- tion to trouble their Lordships at any length with refer- ence to this case ; but he believed that nine hundred and ninety-nine persons out of a thousand would say, on reading this will, that the testatrix did intend by it to pass her whole property, and this is a question of intention. He agreed, however, with the Lord Chief Baron, that there were certain rules by which the inten- tion was to be collected, but he thought they were bad rules, and he hoped they would not long continue to be binding: on the Judges. He knew that it was decided in Sir Edward Clere's case, that a will cannot operate as an execution of a power, unless it refers to the power or the subject of it, or unless the will can have no operation without supposing that an execution of the power was intended. But he conceived that here the estate or subject of the power is referred to in the will, and that this is a case that never occurred before. It is difficult sometimes even for lawyers to know and apply the law in certain cases, and yet you are to suppose that this poor woman knew that as to an undivided moiety of these tenements she had the fee, and as to the other moiety (h) 5 Barn. & Cress. 720 ; 8 Dowl. & R. 5 14. (i) C> Bing. 475. AN APPOINTMENT. 401 moiety, that she was only tenant for life, with a power of appointment, and that special words were necessary to pass that moiety ! The words of the will are, I give and devise all my estates in London and Surrey, and she adds a condition to repair, yet it is said that these words may be satisfied by supposing that they refer only to that moiety which she had in absolute property ; but he defied any ingenuity to show that the words applied only to the one moiety, and not to the other ; that the tenant for life was to repair one moiety, and leave the other unrepaired. The testatrix is clearly speaking of the whole of her property, and this will may be held to apply to all, and to be an execution of the power, in perfect consistency with the doctrine in Sir Edward Clere's case. Lord Tenterden thought that it was the better course to abide by general rules and principles, and not to be led aside by subtle distinctions and considerations of hardship in particular cases, otherwise one uncertainty would arise after another, and the end would be inex- tricable confusion. 40. It has been held that if a man have real estate besides that which is subject to the power, a devise "of all his real estate" and certain personal estate, and " all other his real" and personal "estate" whatsoever, will not amount to an execution of the power. The argument was, that the first devise passed the fee-simple estate, and that the second had only the estate over which the power rode to operate upon. But the devise, taken altogether, appears to have been treated as a mere general devise (Jt). 41. In a case of Coates v. King(Z), the father had divided {It) Davies v. Williams, 1 Adol. (I) P. C. 1821, cited in 5 Barn. & Ell. 588 ; 3 Nev. & M. 821 . & Cress. 726 ; 8 Dowl. & R. 519. D D 402 GENERAL DEVISE NOT divided by his will his real property in Antigua among his three sons, with power to one of them to dispose by will of his share. This son being possessed of consider- able real and personal estates in Antigua, independent of that given by the father's will, devised in these terms: " all my real estate in Antigua, and all other my real estate whatsoever and wheresoever;" and it was held that the will did not pass that property over which he had only the power. The grounds of the decision pro- bably were, that as he had real estate in fee in Antigua, that estate passed by the devise of all his real estate there, and not the estate comprised in the power, ac- cording to the general rule ; and the subsequent words, all other his real estate whatsoever and wheresoever, could not include estates in Antigua, and therefore did not apply to the estate within the power. "sanj*™ 42 - I n Hougham v. Sandys (in), a wife, tenant for life, in possession under a settlement, had, under a power of appointment in the settlement appointed the estate, after her own death, to her husband for life, and (in case of failure of issue, which happened,) to him in fee, with a power of revocation and new appointment to herself. Her husband died, and she was seised, besides the settled property, of a mansion-house and some other small real estate. By her will, executed as required by the power, she devised her mansion-house, with the appurtenances, and all and singular other her messuages, lands, tenements and hereditaments, and parts and shares of any messuages, lands, tenements and hereditaments, and all other her real and leasehold estates whatsoever and wheresoever, to certain uses. The Vice-Chancellor (Sir John Leach) said, adverting to what was the freehold property which this lady could devise, was this devise to be construed of necessity (m) 2 Sim. 95. AN APPOINTMENT. 40H necessity as a devise operating at once as a revocation of the power of (I) appointment, and making either a new appointment, or passing that interest in fee-simple in equity which the testatrix had, provided she did not choose to execute her appointment (II). There was no doubt that for the purpose of construing a will with re- gard to the question, whether it was an execution of a power, courts were justified in regarding the nature of the real estate which the person making the will had at the time. He then referred to Standen v. Standen, and Sir W. Grant's language in Bennet v. Aburrow. He must therefore consider this devise, with a view to dis- cover whether, for the purpose of giving effect to the particular as well as the general words in it, this pro- perty was of necessity included. After expressing his opinion that the small properties did not pass with the mansion-house under the first words in the will, he thought that the words " and all and singular other my messuages, &c." would only pass all other her real estate. They were to be taken merely as general words, and therefore his opinion was, that under these words of devise, the real estate, which was not her's at the time she made her will, but was her husband's, (for unless this was taken to be a revoking of the power (III) it was her husband's,) did not pass, and no intention could be collected from these words of revoking the appointment, and taking away from her husband, or his heirs, that which was already vested in them by means of her pre- vious appointment. 43. And (I) These words appear to be introduced by mistake. (II) The testatrix had the reversion in fee under the settlement, sub- ject to the power. The Vice-Chancellor therefore means, 1 . has she revoked; 2, and if so, has she appointed under her power or devised her interest. (III) 1 his should be appointment. D D 2 ■4U4 LIKLcT i)l i;i:.VERAI. DISPOSITION 43. And where a person hud power to dispose of cer- tain lands, and money to be laid out in land, and was seised of two freehold houses, and devised all and every her freehold messuages, lands, tenements and heredita- ments to trustees, to sell for the purposes of the will, it was held, that the house would satisfy the terms of the will, and that it could not be inferred from the use of those terms that the testatrix meant to execute the power, and the circumstance that the personal estate and the produce of the two houses were not sufficient to answer the purposes of the will was considered of no weight (n). 44. In Adams v. Austin it was deckled that a general devise, after describing- a particular estate, of all other the manors, messuages, lands, tenements and heredita- ments whereof she had power to dispose, was not a good execution of a power to appoint monies which were to arise from the sale of an estate (o). 45. In Anson v. Lee (p), the testator, who had origin- ally reserved to himself a general power of appointment by deed or will of a large estate, including a mansion- house at Hartwell, was held, by the operation of a subse- quent instrument, to have acquired the fee in the greater portion. He by his will, executed in the manner re- quired by the power, but without referring to the power, bequeathed all his real and landed property, wherever situated, to A for ever, also the mansion-house at Hart- well, furniture and books ; and it was held that the estate, which remained subject to the power, did not pass by it. He expressly, it will be observed, named the mansion- house, which had been subject to the power (I). 46. Nowell (») Hoste r. Blackman, 6 Madd. (o) 3 Russ. 461 . 191. (p) 4 Sim. 364. See p. 380. (I) There i* some error in the judgment. It appears to state, that "WHERE PART IS APPOINTED. 40*» 46. Nowell v. Roake was a case where the testator had the fee in one-half of the estate and a power over the other. There was but one property. Sometimes a power rides over several distinct estates, or at least estates of different natures, and a question arises, whether if the will, by force of general expressions, operates over one estate it shall not equally operate upon all. In Lewis v. Lewellyn (q), the testator had a power of appoint- Lcwi * p - ment which embraced both freehold and copyhold estates, and was seised of other freehold estates, but not of any other copyhold, and devised all his freehold and copyhold estates, without reference to the power ; it was held, that the copyholds passed, but not the freeholds, within the power. The point, however, as to the freeholds was not argued at the bar, but given up ; and the Court was left to decide as a question of weight, what really admitted of no doubt, that is, whether the copyholds passed. It was of course decided that they did ; but no opinion was given as to the freeholds. 47. In the later case of Napier v. Napier (r), before Napier*. the Vice-Chancellor, where a testator had only lands in fee in five parishes, and in three other parishes had only lands over which he had a power of appointment, and in another parish had lands in fee, and also lands over which he had a power of appointment, and devised to his only son in fee all and singular his manors, &c. in the nine several parishes which he named in his will, it was holden ; 1. That the lands in fee in the five parishes passed ; (q) 1 Turn. 104. (r) 1 Sim. 28. the mansion-house was still subject to the power, and to reason on that fact ; but if that had been so, a very different question would have arisen, for then the will would have operated as an execution of the very power in which the estate was included, which was held not to pass by the will, The terms of the decree appear to be correct. D D o 406 EFFECT OF GENERAL DISPOSITION passed; 2. That the lands subject to the power in the three parishes also passed, on the ground that the will as to the three parishes would otherwise be wholly inope- rative ; 3. That the lands in the other parish, of which the testator was seised in fee, also passed, and satisfied the words of the will ; and therefore, 4. That the lands in the same parish, over which the testator had only a power, did not pass. Sir John Leach thought that the latter point, if unprejudiced by decision, would present very great difficulty ; but the very point, he said, occurred in Lewis v. Lewellyn, where it was held, that the copy- hold estates subject to the power did pass by the will, but that the freehold estates subject to the power did not pass. In cases of this nature he thought it for the advantage of the public to abide by decision until that decision was corrected by the Court of ultimate resort. It was strenuously argued that the case of Lewis v. Lewellyn was not an authority on this point, as the question was not argued, and the Court gave no opinion whatever upon the point, and that in the principal case there was a clear reference to the testator's power, for the devise of the lands in the three parishes could only ope- rate under his power, and the devise of the lands under the five by force of his interest. This will, therefore, had a mixed operation. Upon precisely the same prin- ciple the devise as to the ninth parish might at once operate on both descriptions of property. There was no solid ground of distinction. The case was a very strong one in favour of the de- visee. The estates within the particular parish (Lamyat) were included in the testator's marriage settlement with the estates in another of the parishes (East Pennard), and the power was in favour of children, so that the same power included both of the estates. He had subse- quently purchased eleven acres of land in Lamyat. By his "* will WHERE PART IS APPOINTED. 407 will he gave all his estates in the nine parishes to his son, and the devise was held to carry the settled estate in East Pennard, but not that in Lamyat. There was neverthe- less another circumstance strongly pointing to the testa- tor's intention. He directed his executors to take care of certain title-deeds in his house, and amongst others, enumerated " also Mrs. Martin's marriage settlement, under which she has only an interest for her life in an estate at Lamyat, a copy of which settlement will be found among the title-deeds of my Lamyat estate." The Vice-Chancellor observed, that this marriage settlement was not the settlement under which the devisor's power over the Lamyat estate arose, and he did not, therefore, perceive how reference was there made to his power. But the clause was used as powerful evidence of the testator's intention to give the estate which he called his Lamyat estate; he did not apply that term to the eleven acres, nor, unless he was devising the estate in settlement, was it material to mention what interest Mrs. Martin had in it. 48. In Churchill v. Dibben (s), by a marriage settle- Churchai v. i -n > i i • Dibben. ment the wile s real estates were conveyed to uses in strict settlement, and in default of issue of the marriage, as to part to the husband, and as to a moiety of Mappercombe farm and Buncombe farm, and other lands, to the trus- tees and their heirs, for such persons and estates as the wife, notwithstanding her coverture, should by deed or will, &c. appoint. A leasehold tenement called Porten, and some other leaseholds, were settled with a like power. She purchased freehold and leasehold estates with her savings. By her will, 1, she gave to her sister, Mary, her estate called Porten ; 2, she gave a legacy of 200/.; 3, she gave unto T. C. the moiety of Mapper- combe farm, then in her possession, and likewise unto him (s) 2 Lord Kcnyon, 2d part, US. See 2 Eden, 25 S. D D I 40S EFFECT OF GENERAL DISPOSITION him all the lands which she had purchased (except one specified) ; 4, she gave to her husband Buncombe farm, and the estate she purchased and above excepted, for life, with remainder to T. C. in fee ; 5, she gave a legacy to her coachman ; 6, " and all the rest of my goods, chattels, estates and estate whatsoever undisposed of, I do give and bequeath unto my kinsman JR. C, his heirs, executors and assigns for ever. Also I do nomi- nate and appoint him my executor to this my last will." Lord Hardwicke said, that the principal and most mate- rial question arose from the last clause in it. 1. He held that had this been the will of a person who had a general capacity to dispose of lands of which he had the general ownership, pursuant to the statute of wills, such lands would certainly have passed under the residuary devise. 2. As a feme covert can give nothing by virtue of her ownership, does this general clause include those lands of which she had power to dispose by the settle- ment ? Now there are different sorts of powers : power over an estate of another — power over one's own estate. Had this been a power over the estate of another, it would be going a great way to say such an estate should pass under the general residuary clause ; it is not to be presumed such could be meant ; and in the next place, the description (of which the word "my" is a part) would not have taken them in. — This was origin- ally the testatrix's own estate ; she had settled it to her- self for life, and after in strict settlement, with a power to dispose of it in default of issue of the marriage, so that the reversion in fee was in herself, and unless she disposed of it, would remain in her and descend to her heir. Beyond all question then the estate was hers, and the inheritance would have descended from her. What then is the difference between her case and that of a person who has a general capacity by virtue of the statute WHERE PART IS APPOINTED. 4 09 statute of Henry VIII. ? According to the general rule the will shall operate as it may, as a will, as an appoint- ment, or partly one and partly the other, ut res magis valeat qaam pereat. It could not operate as a will, on account of her incapacity by coverture ; the lands are taken into the description by the word " my," &c, for the estate was hers, and she had in this special manner a power to dispose of it by devise. She does not dispose by virtue of her ownership, but the word " my" perfects the description, as they were in fact her lands. He was of opinion then that those lands, whatever they were, did pass, and the rather because the whole will must be consi- dered as an execution of her power ; for though, as he held, the lands purchased would not pass, yet she in- tended to give them by her power, for as the money with which they were purchased arose from the lands included in her power, she certainly thought (but she was mistaken) that they would be included likewise. She could not dispose of her goods and chattels but under this power, yet there is no more reference to the power in respect of them than of the lands. Why then may not the one as well as the other be disposed of without a reference? The leaseholds purchased, he held, if not specifically devised, would fall, under the words goods and chattels, into the residuary devise ; for this, whether money or leasehold estates, is still personal, and subject to her power. The decree was, that all the freehold estates comprehended in the marriage settlement, and thereby subjected to the testatrix's power of appoint- ment (except the moiety of Mappercombe farm), and all the leasehold estates comprised in the settlement, except that at Porten, passed to JR. C. by the residuary gift. This is a most important decision. After devises by name of some of the estates comprised in the power, but without any other reference to the power, to several persons. 410 EFFECT OF GENERAL DISPOSITION persons, a residuary gift of all the rest of her goods, chattels, estates and estate whatsoever undisposed, was held to pass the remainder of the real and leasehold estates subjected to the power, notwithstanding the tes- tatrix had general personal estate. This decree was founded, 1. upon the nature of the power and the pro- noun my, which identified these estates ; and 2. upon the whole frame of the will, from which it manifestly appeared that she intended to dispose of the property comprised in her settlement, or in other words, to exer- cise her power. Dillon v. 49. In Dillon v. Dillon (t), the lands of Lissavora and Baltydaniel were agreed to be settled to certain uses in strict settlement, with power to the husband to dispose of the same to the issue of the marriage, as he should think fit. One moiety of Lissavora would go in posses- sion to the uses of the settlement on the death of A and B, and one moiety of Baltydaniel on the death of A, and the other moiety of both estates (after the like deaths, and the death and failure of issue of another person), would also go in possession to the uses of the settlement; so that the whole of the two estates was settled (subject to the various previous estates) to the husband's appointment amongst the children: 1,000/. was also settled to be paid after the death of the husband and wife to the issue of the marriage, as the husband should appoint, with liberty to lay it out in lands. A died, and the husband was in possession of the whole of Baltydaniel ; one moiety under the articles, the other under a lease from the party in possession ; and he had also unsettled estates (I). The husband then made his (t) 1 Ball & Beat. 77. (I) This appears by the Decree; an extract from which will be found in Appendix, No. \'J. WHERE PART IS APPOINTED. 411 his will, by which he recited his settlement as to the 1,000 L, and that it had been applied by him in the purchase of leases of lands ; and he charged all the said lands, together with the moiety of Lissavora, to which he would be entitled on the death of B, and also all such other farms or lands as he might die seised or possessed of, with the payment of two annuities to his wife, one of them in lieu of interest on the 1,000 I. And he gave all the said farms and lands, and all or any other farm or farms that he should happen to die seised of or entitled unto, either in possession, reversion, re- mainder or expectancy, together with all his personal estate, to his children. By the failure of the prior limitations the entirety of both estates became subject to the power in possession, and it was held that all the settled estates passed by the will as an execution of the power ; and that the testator's own estates also passed by the will (I). Lord Manners, C, observed, that the tes- tator spoke of Lissavora as lands he should become en- titled to on the death of B; was it not manifest, therefore, that he considered them as his own lands, and did not this clearly explain what he meant by the words " my lands?" It was impossible not to see that he meant all the lands over which he had a power. The terms of the articles might easily lead them to consider the settled property as their own, and it was perfectly clear that where he in his will spoke of his lands, he meant the lands intended to be settled by the articles, and he dis- poses of them among his children, which by the power he was enabled to do. He was, therefore, clearly of opinion that the testator had by his will exercised the power of appointment given him by the articles [over all (1) Sec the Decree, No. 13, Appendix. 412 EFFECT OF GENERAL DISPOSITION all the estates]. That the will also operated to pass the unsettled estate appears not to have been disputed. Morgan v. 50. So in Morgan v. Suniiaii ( 'u), the intention in a will to pass the veal estate in the power, which appeared by the description of it, was held to give the same character to the disposition of the personal estate, al- though general. The testator gave his messuage, &c. and all the resi- due of his real and personal estate, stock in trade, &c, unto his wife for her use, and to maintain her children during her life, she paying thereout his debts, &c. ; and after her decease he gave the same (which was held to mean all the property) to be parted amongst them as she should think proper. By her will (not referring to her power) she gave to two of her sons the messuage, &c. by a particular description, and also all her house- hold goods, stock in trade, and all personal property that she should die possessed of, whatsoever, and where- soever the same should be, at her decease, and when one of them should attain twenty-one, she willed that the whole of her real and personal estate should be divided between them, subject to the payment of her debts and the several legacies bequeathed to her other children, with certain contingent limitations over of the real estate. She gave to her son Thomas one guinea, as he was settled in business during the life of his father, and had his share of their property already ; and she gave to three other children very small legacies, which she stated made their shares as nearly equal as she could guess with what Thomas had had, and to be paid when the youngest son attained twenty-one. Now the ques- tion at law arose in ejectment for the real estate. It was clear that no child could be excluded, and the question (u) 1 Taunt. 289. WHERE PART IS APPOINTED. 413 question then was whether a share of the personalty to four of them was sufficient. Mansfield, C. J., after dis- cussing the point as to illusory appointments, observed that in the present case there was a fund consisting both of real and personal estate, and to several of the children no part of the real estate was distributed. The question, he said, then arose whether it was necessary to give a part of the property of each description to each of the objects of the testator's bounty. He considered a part of each might be given to each in equity, and that at law no doubt existed that the giving a part of one species only would be a good legal appointment, and if so the lessor of the plaintiff (the heir-at-law and a pecuniary legatee under the widow's will) was entitled to no part of the real estate. But it had been said that this was not a good execution of the power, because the testatrix disposed of the property as her own. He admitted Clere's case, but added, that where A is seised of an estate with a power for B to appoint, there B having no estate, his act shall necessarily be inferred to be done in execution of the power ; and he referred to Standen v. Standen. The testatrix there, taking as she did only a life interest in the real estate, certainly had only a power over the reversion, and not an interest in it ; and there- fore, although she used terms of devise, it is plain that she meant to execute the power. Now the case wholly depended upon the fact that the testatrix had given to each of the children excluded from taking the real estate, a share of the husband's personal estate. But although the gift of the real estate was identified by description, yet there was no such description of the personal estate. It was given as her household goods, stock in trade, and all personal pro- perty that she should die possessed of; and it was made subject to her debts, which the power did not authorize. The 414 WHAT GENERAL WORDS DESCRIBE • The gift clearly included her own personal estate, and she might have acquired stock in trade, besides that sub- ject to her husband's will. The legacies to the four children were general pecuniary legacies, and of course, as such, could not have operated as appointments, had not the testatrix, in the gift to the two youngest sons, charged the property given to them with those lega- cies (I) ; and although that was a fund at least in part composed of her own property, yet it was held to carry also her husband's, over which she had only a power, and the charge of course affected that as well as the other property : and this was held, although the first burden charged, viz. her debts, could not be made pay- able under the power. This reasoning no doubt does not appear in the report, but the point was taken for granted at the bar and by the Bench. It could not have been overlooked, as in the view which the Court took of the case it was the very question to be decided, and it ap- pears to have been well decided ; for by disposing of her husband's real estate as her own, she gave a mean- ing to her expressions which the Court was warranted in extending to the whole clause. Upon another part of the same will, Mr. Justice Heath made an observation which bears upon this view of the case. The words, he said, were in the same period, and it was a rule of con- struction that if the whole of a sentence could be made to stand together, it should be so construed. 51. In the cases hitherto considered there were the clear words " real estate," and the only doubt was whether the real estate comprised in the power was the property referred to. But cases have occurred where the words were clearly sufficient to pass real estate, al- though (I) Perhaps there was an implied charge upon both the real and per- sonal estates. REAL ESTATE IN A POWER. 415 though those precise words were not used ; and the ques- • tion has been raised, whether although there was no other real estate to satisfy the words, the property within the power should be deemed the subject of the disposi- tion. 52. In exparte Caswall («?), the facts, which are not accurately stated, were in substance, that a copyhold was surrendered to trustees in trust for the surrenderor for life, and then to such uses as he should by deed or will appoint, and in default of appointment, to his son John in fee. He made his will, and as to all the resi- due and remainder of his effects, real and personal, of what tenure, kind or quality soever, he gave to his son George. He had other lands on which the devise to George might be satisfied, and therefore Lord Hard- wicke held that the will did not amount to an execution of the power. Here, therefore, was nothing that was at all descriptive of the thing which the testator had a power to dispose of, but what was applicable to other estates of which he was seised and of which he could equally dispose. Lord Hardwicke's opinion plainly was, that if there had been no other real estate to satisfy the devise, it would have operated as an execution of the power. 53. In Jones v. Curry, before Sir Thomas Plumer (V), Jones v. the testatrix had an estate for life in certain real and urry " personal estate, with remainder to her issue, and in default of issue, a general power of appointment by will. She died without issue, and by her will, executed so as to pass real estate, she gave unto her father and mother " all her estate and effects of whatsoever denomination," with a gift over of " the property," and certain gifts of an annuity, legacy, and specific articles of personalty. It (to) 1 Atk. 359. (x) 1 Swanst. 66 ; Wils. Cha. Ca. 24. 4 lt> GENERAL DEVISE BY A It was held that the power was not well executed. As to the real estate, the learned Judge said there was a shade of novelty in the case. The case of Standen v. Standen had established, that with regard to real estate the Court may examine whether the circumstances of the testator's property are such as to give effect to the will ; and if this will had contained an unequivocal de- vise of realty, the Court must, in order to give operation to an instrument which would otherwise be inoperative, have resorted to the fund the subject of the power. But this will contained no words which would be without operation unless referred to the power. On the contrary, the testatrix uses terms of generality, " all my estate and effects of whatever denomination." That clause would embrace all her real and personal property ; but would it go beyond that ? Could it extend to what was not the property of the textatrix ? The words are not of a specific description of any estate or of any species of interest, but adapted to comprehend every thing which was, and to exclude every thing which was not a part of her property. In order to apply them to property not hers, we must reject the pronoun " my." The distinc- tion, notwithstanding some expressions of Lord Rosslyn in Standen v. Standen, being now established between property and power ; these words, containing no direct reference to any particular fund, nothing in description to enable the Court to collect her intention to exercise her power, are not sufficient to designate with due cer- tainty property not her own, but of which she was em- powered to dispose. Though she had no real estate, she might have personal property of various descriptions, and the terms would be satisfied by passing that. 54. Although the donee of the power be a married woman and under an incapacity to dispose of any pro- perty except under her power, yet her disposition will not MARRIED WOMAN WITH A POWER. 41' not upon that ground receive a more liberal construc- tion. Thus in Lovell v. Knight (?/), a woman's leasehold Loveiiu. estates for years were assigned to trustees for her sepa- rate use, and then in trust for her children, and in default of children, to her appointment by will or codicil, signed, &c. A year after the marriage she made her will, describing herself as a married woman, and gave to her husband the whole of her property both real and personal, and whatsoever she might possess at the time of her decease, the whole to be given up to her husband, his heirs, executors, administrators and assigns, to and for his and their own use absolutely, and she appointed him as his own executor of her will : it was held that the power was not well executed. The Vice-Chancellor said, the question was whether upon this instrument he was authorized to hold that the lady had executed her power of appointment as to the leaseholds for years. It was argued that he was authorized to come to that decision by the authority of Standen v. Standen, and Wallop v. Lord Portsmouth. There the power extended to appoint money which should arise from the sale of real estate, which real estate had never been sold, but remained to be, and was enjoyed as real estate : and it was decided that the words " real estate" used by the person having the power, should be held to refer to that which was de facto real estate, although in the contem- plation of a Court of Equity, it was substantially personal estate : and it was said that the decisions in those two cases bear upon the present case, and that the testatrix having used the expression " real and personal pro- perty," the Court is at liberty to hold that by real property, she meant, not that which was in fact real, according (y) 3 Sim. 275. E E 418 DEVISE UY \ MARRIED Wu.MAN. according to the general meaning of the term, hut thai which savoured of the realty: in other words, that real estate as opposed to personal property, might be held to mean chattels real. Now it always had appeared to him that the two cases referred to had gone to the very limit of the law, by giving to the words " real estate" that meaning which, under the circumstances of the property in those two cases, the terms would not ordinarily bear. But he was asked to go much further in this case, and to decide that where a party evidently means to give all her property, and has described it as both real and per- sonal, he was, under the term " real," as opposed to the word " personal," not to hold that that which is real shall pass, but that which is not real shall pass. It ap- peared to him that that would be doing a greater violence to the words than was done even in the two cases referred to. Was this testamentary instrument to be taken as anything else than a general will by the testatrix, meaning to dispose of all her property in general terms ? Here there was no specific enumeration of the articles of property intended to be disposed of, but she affected to give " the whole of her property, both real and personal, and whatsoever she might possess at the time of her decease." He did not think, that if this person had intended to dispose of all her property, more comprehensive and general terms could have been selected than are here used : and it was per- fectly settled that, wherever a will is couched in such terms as that, upon the face of it, it appears to express an intention to pass the general property which may belong to the party making the will, such a will shall not be deemed an execution of the power with regard to any specific property. The points relied upon at the bar, were, 1, the inca- pacity of the married woman to dispose of her leasehold estates, REVIEW OF THE AUTHORITIES. 419 ^states, except under her power; 2, the words of the will, which would have passed this property if she had been sui juris, and as she was incapable of passing them except under her power, and had no estate to satisfy the words, therefore they should be held to pass. She had no real estate, and therefore, according to the ordinary rules of interpretation, the leaseholds ought to have been held to be the estate referred to, which is in truth real estate, although we treat it as a chattel interest. The leading argument does not appear to have been adverted to. Upon an appeal, however, the decree was affirmed, but with no disinclination on the part of the Lord Chan- cellor that the case should go further. 55. In reviewing the cases in this section, it is impos- sible not to be struck with the number of instances where the intention has been defeated by the rule dis- tinguishing power from property, and it has occurred to some that it requires a legislative remedy. I fear that any such remedy would, in the end, aggravate the evil, and certainly itself frequently defeat the intention. The mischief has been increased by the Courts, in some recent instances, adopting a strict construction, with a view to establish a certain rule. The particular dispo- sition, where the power or the subject is not clearly referred to, must always raise a question of construction. Now, without breaking in upon the general rule, but on the contrary giving to it its full force, the intention in many of the decided cases might have been effectuated. The decisions in Wallop v. Lord Portsmouth, and Standen v. Standen, were perfectly right, and cannot be broken in upon. In neither case was the subject accurately described, for not only was the estate not the testatrix's in a general sense, but it was real estate directed to be converted into money. But there is no e e 2 mae;ic 4 ^° REVIEW OF THE AUTHORITIES magic in words. It was real estate, she had none of'her own, and therefore it was a clear inference that, in dis- posing of real estate, she meant that over which, sub modo, she had a power. The decision may not, there- fore, be thought to go a great way; and, as it was affirmed in the House of Lords, it is a binding authority. In a case like Nowell v. Roake, the nature of the pro- perty might, without introducing any uncertainty into the rule, be considered to manifest a sufficient intention. I hold an estate as an entirety, but the tenure is in moieties, and one is subject only to my appointment ; I give by my will all my estates to one for life. The rule would exclude that moiety within the power, if it. stood there, but I direct that the tenant for life shall keep the estates in repair. The estate cannot be re- paired bj r undivided moieties, although two tenants in common may repair the estate ; and therefore the direc- tion might, in favour of the intention, have been held, according to the decree in the Court of Common Pleas, as evidence that she was dealing with the entirety. That, however, was a case upon which opinions might fairly differ. But in cases where distinct properties are subject to the power, and there is evidence of the intention to comprehend one description of the property in the power within the general disposition, the whole ought to be held to pass. This really was the point decided by the House of Lords, in Standen v. Standen, for the gift was generallv of the residue of the testatrix's real and personal estate. Now, the gift was held valid as to the real estate, because she had no real estate of her ow r n ; but this did not apply to the personal estate properly w r ithin the power, which was equally held to pass. The ground upon which that passed of course was, that the fact of the testatrix not having real estate, gave to her disposition the character of an execution of ■^ the UPON GENERAL DISPOSITIONS. 421 the power over the real estate ; it showed her intention to execute her power, and that when she talked of her real estate, she meant the real estate in the power; and the same intention was held to govern the entire gift : upon what ground can you draw a distinction ? She gives her real and personal estate, without further expla- nation. But the extrinsic evidence introduces a fact which proves, what her language by itself does not, that she is dealing with some of the property in the power — a due construction of the will requires the same force to be given to the whole sentence, and it is altogether indifferent, when you have thus ascertained the inten- tion, that the same words will also carry her own per- sonal estate. Lord Hardwicke's decision in Churchill v. Dibben clearly goes as far, for both the freeholds and the leaseholds were held to pass by the residuary gift, and the testatrix there had purchased other leaseholds with her savings, which were also held to pass. Lord Hardwicke properly relied upon the nature of the power, and of the testatrix's interest in the estate. The case has only lately been presented to the profession, and must have considerable influence over future de- cisions. The case of Morgan and Surman is also an authority for a power being executed over all the pro- perty comprised in it by general words, where an inten- tion is shown to execute it as to other property, so as to give the same character to the whole gift. Lord Eldon appears to have entertained this opinion. In Roach v. Haynes (Y), the question turned upon a sub- stitution of a residuary legatee, by a codicil not referring to the power or the property, but speaking only of "my estate and effects," although the residuary legatee in the will (z) 8 Ves. jun. 592. Vide to revoke the appointment in the supra. The codicil was held not will. E E : » 422 REVIEW OF THE AUTHORITIES will took both property of the testatrix's own, and pro- perty over which she had a power. Lord Eldon observed, that the objection was that there was not enough in the codicil to substitute the new legatee for the old : the codi- cil giving only the residue of her estate and effects, a de- scription that would not comprehend the specific things given to the residuary legatee by the will. An answer to that objection was, that though in general cases those words will not pass what the testator has power to dis- pose of, but no interest in, yet enough might be found in the particular case to show an intention to pass the subject of the power, as in the cases where money arising from real estate may pass under the words per- sonal estate, upon the clear intention to embrace it. This testatrix set out [in her will] with an intention to dispose of 10,000 /. ; she did not exhaust it, but as to particular parts, she took notice that was to fall into the residue. She used words, perhaps unnecessarily, that •would comprehend not only the property she had power to dispose of, but property strictly her own, and she had blended it so that she had sufficiently demonstrated an intention to treat and give as her own all she had as her own, either by authority or interest. This rule of construction, for which there is such great authority, will in many cases carry the intention into effect without breaking in upon the general rule. The principle of the cases was fully adopted by the late Master of the Rolls (Sir John Leach), in Walker v. Mackie, and Grant v. Lynam. But in some few cases the authorities have not been followed. In Lewis v. Lewellyn, as we have seen, the gift was of freeholds and copyholds ; there was property of both descriptions in the same power. As the testator had no other copyholds, those in the power were held to pass, but the freeholds not; but this is not warranted by Standen v. Standen. § There UPON GENERAL DISPOSITIONS. 423 There is less difficulty in the former case than in the latter. The extrinsic evidence shows that the testator was speaking of the settled property when he devised his copyholds, and the words thus explained are suffi- cient to pass them. Now the same words, under the same explanation, would carry the freeholds. It is im- material that he has other freeholds ; for having already ascertained that he used the other words in the same sentence as describing part of the property in the power, that impresses the same meaning on the whole clause. A man gives all his freehold and copyhold estates to A. The circumstance of his having no copyholds of his own, affords evidence that he was speaking of those within the power; but the power also embraced freeholds. Now, can you deny the same intention, and conse- quently the same meaning, to every part of the clause ? Again, in Napier v. Napier, the testator gave all his estates in nine parishes : this passed estates in five pa- rishes of which he was seised in fee, and lands in three parishes over which he had a power ; but then came the point : in the other parish he had lands in fee and lands over which he had a power, and the latter were held not to pass, although the lands in the power were com- prised in the same power with those in one of the three parishes, and his fee-simple lands were simply eleven acres subsequently purchased. This also appears to be in opposition to the decision of the House of Lords in Stan- den v. Standen. The one devise in the will had already a mixed operation ; it was flexible enough to pass fee- simple estates and estates subject to a power, where they were in different parishes : why should they not have embraced the two sorts of estates, although in the same parish ? It was decided, as regarded the eight parishes, that the testator intended both to devise his fee-simple estates and to exercise his powers ; and although the cir- e e 4 cumstances 424 REVIEW OF Till: AUTHORITIES cumstances of the estates in the eight parishes alone proved this, yet when it was once established that such was the intention, and that the very same gift would at once devise fee-simple estates and execute powers over others, surely that devise ought to have passed both descrip- tions of estates in the nintli parish. The devise would then have operated upon all the estates in the nine parishes over which the testator either had a seisin in fee or a power to devise by will. What rule, it may be asked, would that have infringed ? In Lovell v. Knight, the more confined construction disappointed the intention of the testatrix in another shape. The testatrix was a married woman. Now the disability of coverture does have some operation in these cases ; for if a married woman have a power, and the estate itself is vested in her in default of appointment, and she devise the estate generally, her devise will operate as an appointment, because she cannot devise her interest. The will of a person sui juris would in the same case operate as a devise, and not as an appoint- ment. The disability of coverture, therefore, has some bearing upon the construction of the instrument. In Lovell v. Knight, the wife gave all her real and personal estate ; real estate she had none in a proper sense, but she had leaseholds, and the land is real estate, although in this country we treat the leasehold interest in it as a chattel. But she had nothing to answer the descrip- tion but the leaseholds in the power (a). Now if she had been sui juris, and had given all her real estates by her will to one, and she had had only leasehold estates, the latter would have passed. Why should not the same construction have been put on her will ? Besides, where a married woman disposes by her will of her real and personal (a] Sec Kurd Eldon's observations in Roach r. Hayne, above quoted. UPON GENERAL DISPOSITIONS. 425 personal estates, and cannot dispose of any real estate except by virtue of a power, the very instrument, as well as the terms used in it, proves that she intends to exe- cute her power ; and then the words present no difficulty, but are easily moulded, so as to pass the property ac- cording to the intention. The decision of Lord Hard- wicke in Churchill v. Dibben would lead one to suppose that he would not have decided Lovell and Knight against the appointment. In Jones v. Curry, where Sir Thomas Plumer, as we have seen, refused to give to the devise its natural con- struction, there is some inconsistency in some of the passages of the judgment. If the. words were not suffi- cient to pass real estate — which they clearly were— the point did not arise If they were sufficient, the case does not appear to have been well decided. The cases had already gone far enough. The first question is upon the words. Are they sufficient to pass real estate ? for if they are, then an intention to pass real estate cannot fail to be collected from the will. The next question is, had the testatrix any real estate not comprised in the power to satisfy the words ? in which case they only would pass. But if she had not, but had a power over real estate, then that real estate would pass. To say that all her real estate would pass by it, and therefore the words are satisfied although she had none, and to rely on the pronoun " my," is simply to contradict the authorities, which the learned Judge professed, and no doubt intended, to follow. There is no magic in words, and their legal and simple import should be ascribed to them, in order to effect what manifestly in such a case is the intention of the testator. Upon the whole, although a certain rule is necessary to prevent vexation, yet the principles established by the authorities — Wallop v. Lord Portsmouth, Churchill v. Dibben, 42G WHERE A HOND OR judgment v. Dibben, Standcn v. Standen, Morgan v. Surman — are altogether consistent with the rule, and if steadily followed would, it may be thought, have supported the dispositions in Lewis v. Lewellyn, Napier v. Napier, and Jones and Curry, and also in Lovell v. Knight. It would be difficult to maintain that if the dispositions in those cases had been supported as executions of the powers, any uncertainty would have been introduced into the law. 56. In a late case, where by fine the wife's estate was conveyed to such uses, intents and purposes as she should appoint by any deed under her hand and seal, properly witnessed, whether covert or sole, she joined with her husband in a bond and warrant of attorney to secure a debt, and separate judgments were accordingly entered up against them. The question was, whether the power was executed. Lord Redesdaie said, that it is not neces- sary that the instrument, to operate under the power, should recite the power, or refer to it in any manner in the execution of it ; but if a person having such a power does an act with all the solemnities required, and which can have no effect but by virtue of the power, the act is taken to be done in execution of the power. Suppose the demand here made had been made, not by the exe- cutors of Dillon the husband, but by the creditor : sup- pose the question to have arisen between the creditors and Mrs. Dillon, she still living ; the question might thus be put to her ; " Did you, Mrs. Dillon, join in exe- cuting this bond as a security to a creditor for this sum of money ?" — " Yes." — " For what purpose did you exe- cute it?" There could be no purpose suggested but the purpose of securing the debt by charging the estate. She had a power of charging the estate by deed under seal, and here is a deed under seal executed by her, and purporting to bind her as far as she could be bound. Is not EXECUTES A POWER. 427 not that an instrument executed by her according to her power of charging ? (6) (I). It was, however, unnecessary to decide the point, nor could the instrument, it should seem, be deemed a good execution of the power. It would charge any separate property, and so far it would answer the purpose in- tended ; if she had no such property, it would of course be inoperative ; but that is not a sufficient reason why it should be deemed an execution of the power: the question in these cases is, whether such an intention appears that the instrument should operate as an execu- tion of the power as a judge can act upon, not whether it would be desirable that the creditor should have a security on the subject of the power. If the power was executed in the above case, it would not be a greater stretch to hold that a bond by an insolvent, on his death- bed, executed by accident, according to a power which was vested in him, operated as an execution of the power, because otherwise it could not have any opera- tion. All the cases appear to be against the inclination of the Court in the case under consideration ; although, indeed, Lord Clare is reported to have thought that a judgment confessed by a person having power to charge the lands with money he might have occasion to borrow, was an execution thereof ! (c). 57. However, (b) Dillon v. Grace, 2 Scho. & (c) O'Hara v. Browne, 2 Ball Lef. 456. See Martin v. Mitch- & Beatty, 41, cited, ell, 3 Swanst. 413. (I) Read Peacock v. Monk, 2 Ves. 190; the bond did not, as was supposed, operate as an execution of a regular power of appointment, but merely bound her separate estate, she being, as to that, a feme sole. Heatley v. Thomas, 15 Ves. jun. 596, is a case of the same description. The settlement was held to be generally to the wife's separate use. See 1 Ves. & Bea. 122, 123. In Bulpin *. Clarke 17 Ves. jun. 365, which is a strong case, the property was in effect settled to the wife's separate use. 4 28 OF THE EXECUTION OF A POWER Madden 57 However, where a man makes a voluntary settle- V. Andrew. •> ment, and reserves a power to himself, it will, it seems, be construed liberally, and the courts will be anxious to seize on any words which may be deemed an execution of the power. Thus, in the case of Maddison v. An- drew (d), in a voluntary settlement, the grantor limited a term to trustees, with power to charge 1,000 1. The settlor made his will, and charged all his real and per- sonal estate with his debts and legacies. Lord Hard- wicke held that the power was executed, as it was to be construed, liberally. And, as to the execution of it, the donee had used the word charge, which was the word in the power, and it was only a shadow of a difference that he had charged all his estate, whereas this was before settled to uses, for these powers to the owner were to be considered as part of the property (e). It should be observed, that this case has never been adverted to in the subsequent cases. It appears to draw a distinc- tion as to the nature of the power which it would be difficult to support ; the argument as to the words " his estate," would apply with equal force to every residu- ary disposition ; a construction which Lord Hardwicke himself expressly over-ruled ( /*). But the case seems to depend upon its own particular circumstances. By the Registrar's book it appears that the power was " by deed or writing to limit any part of the premises for raising any sum of money in his life-time, not exceeding 4,000 /. ; or in case such sum should not be raised in his life-time, and he should die unmarried, without issue, then he should have power by will to charge any part of the premises with the payment of any sum or sums of money not exceeding 1,000/. to any person or persons as (d ) I Ves. 6 1 . (,/) Ex-paite Caswell, 1 Atk. 559. (c) Lib. Reg. 13. 17F7,lbl. 119. TO CHARGE. 429 as he should appoint." He was tenant for life under the settlement. The variation in the phraseology of the power was certainly remarkable (g). 58. The case of Probert v. Morgan, as it is reported Probert v. . , . , i - i Morgan. m Atkins, also seems an authority that a power to charge a sum of money on an estate is well executed by a general charge in a will of a sum of money on the testator's estates. But it appears by the Registrar's book that the question did not arise in that case. A term was limited to trustees, to raise 2,000 /. and pay it as Probert should direct ; and his three sisters afterwards became entitled to the reversion in fee of the estate in equal thirds, which reversion was formerly vested in Probert himself. Probert by his will charged all his real estate with 1,000 1. " to be paid by his three sisters out of their respective shares of his estate!' This, there- fore, was a direct reference to the fund subject to the power, and it was impossible to doubt that the power was duly executed {K). (g) Lib. Reg. B. 1747, fol. 119. {h) Reg. Lib. B. 1738, fol. 310. 430 EFFECT ol" liENEUAL DISPOSITION SECTION VIII. WHAT AMOUNTS TO THE EXECUTION OF A POWER WHERE THE DONEE HAS AN INTEREST IN THE ESTATE. 10 11 12 13 1 1 15 18 16 , Where poiver and interest, a general act passes the in- terest. 1 But if the act would be in f part inoperative, the power J operates. So general act executes a power of revocation where only a partial interest. Or disposition woidd be xoid. Feme covert's will, executes her power. Lease absolute, by a tenant for life, operates under power. Although the donee mistake his title and recites an interest. Dcnn v. Roake. Observa- tions on judgment. Intention governs: Several poiver s. Power intended to be cxer- 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 28. cised, interest not to pass to appointee's prejudice. Interest will aid a devise un- der void power. Power not executed against in- tention. Legal lease bad under equitable power. Operation of a codicil upon a new power. Lane v. Wilkins. Powell v. Loxdale. Where legacy remains though power destroyed. Effect of a fine upon a will. Settlement a revocation of a ■will. Appointment and release in- tention governs. Roach v. Wadham, with ob- servations. Wynne v. Griffith. 1 . The questions on this head arise either where the estate is conveyed generally, or where the use is ap- pointed under the power, and also the estate is conveyed by force of the interest. First, it is well settled, that where a man has both a power and an interest, and does an act generally as owner of the land, without reference to his power, the land shall pass by virtue of his owner- ship. He has an estate grantable in him, and also a power WHERE BOTH POWER AND INTEREST. 431 power to limit a use ; and when he grants the land itself, without any reference to his authority, it implies his intent to grant an estate as owner of the land, and not to limit a use in pursuance of his power. Nor, ac- cording to one of the points resolved in Sir Edward Clere's case (a), is it an objection to this construction that all the land cannot pass unless the instrument be construed as a limitation of the use. At that time te- nures in capite prevailed, and only two thirds of land holden by that tenure could be devised. The Judges resolved, that if a man conveyed the land to such uses as he should appoint by will, the use resulted to him, and he was seised in fee in the mean time (b) : and, that if he devised the land generally, his will should not ope- rate as an appointment, but as a devise of his interest, and consequently the devise would be good for two parts only, and void for the third ; for, as owner of the land, he could not dispose of more, and his devise should be of as much validity as the will of every other owner having land held in capite (c). 2. This question, however, cannot arise in the same shape at the present day, as the ancient incidents to tenures in capite, so little consistent with the commercial polity of the present age, have been long abolished. But it may occur in this way, — an estate may be settled to such uses as a man shall appoint, and in default of appointment as to part to himself, and as to the residue to strangers, and then he may make a general disposi- tion. And, notwithstanding Sir Edward Clere's case, an intent, apparent upon the face of the instrument, to dispose of all the estate, would be deemed a sufficient reference (a) Co. 17 ; and see Brown (c) See Hob. 313 ; Parker v. v. Taylor, Cro. Car. 38. Kett, 12 Mod. 469 ; Wagstaff r. (b) See Brand's case, Ley, 39 ; Wagstaff, 2 P. Wins. 258, 2d Mytton v. Lutwich, W. Jon. 7. point. 432 EFFECT OF GENERAL DTSPOSITh >\ reference to the power to make the instrument operate as an execution of it, inasmuch as the words of the in- strument could not otherwise be satisfied. In the case of Thomlinson v. Dighton (d), Lord C. J. Parker ob- served, that in Sir Edward Clere's case it was resolved, where according to the way the parties intended the conveyance would have no effect at all, that there it should pass another way ; but where, should the estate pass the way the parties intended, the conveyance would have some effect, though not all that w r as intended by the parties, there it should pass no other way than the parties designed. But this point has since been carried much farther, as that, where it would have some effect, but not all intended by the parties, there, to the end that the main design of the parties may be observed, the estate shall pass in another way than the parties intended. For example : Suppose a woman seised of an estate for life, with a power to make a lease for three lives, or twenty-one years ; she marries ; and then she and her husband join in making the lease, and the husband and wife both die before the lease is expired : here, though the husband in right of his wife, and she in her own, are possessed of an estate for life, and therefore can, as owners, make a lease, and there appears no intention of the parties (imagining perhaps that they should have outlived the lease) that this lease should be made by virtue of the power, yet because the lease, supposing it made by them as owners, cannot have all the effect the parties intended — for some it would have, viz. it would be a good lease during the lives of the husband and wife — yet because it cannot have all, it shall be esteemed made by virtue of the power. 3. In Ingram v. Parker, where a tenant in tail, with remainders (d) See 10 Mod. 30 ; and Blake v. Marnell, 2 Ball & Beatty, 35. WHERE BOTH POWER AND INTEREST. 433 remainders over, with a power of revocation, by deed (intended to be enrolled) conveyed to one in fee, and afterwards levied a fine, it was held to be no revocation, because, as far as regards the point now before us, he having an estate tail in him, the deed might operate upon his interest. But Hale, C. J., in a subsequent case, said that the reason did not satisfy, because such an estate as was intended to be conveyed could not be derived out of his interest, therefore it should take effect by his power, according to Clere's case (e). 4. As to powers of revocation, we have already seen that an act which can only operate as an exercise of it shall be deemed a valid execution of the power (f). In almost all such cases the party exercising the power has an interest in the estate itself. If a settlement be made by a man on himself, his wife and children, with a power of revocation, and he by a subsequent instrument, exe- cuted in the manner required by the power, resettle the estate to other uses, the power of revocation, although not referred to, will be well executed (g), and a reversion in fee in the settlor will not be deemed to be the subject of the settlement where he manifestly intends the fee in possession to pass, which it can do only under the power (Ji). In Kibbet v. Lee the estate was settled on the father for life, remainder to his son George in tail, remainder to himself in fee, with a general power of re- vocation, and the devise was to his son Thomas in tail, remainder to George in tail, remainder to his daughter in fee, and it was held a good execution of the power of revocation. The devise was inconsistent with the settle- ment. (e) 1 Ventr. 280, 291. Lord Snape v. Turton, Cro. Car. 472; Leicester's case, ib. 278. Kibbet v. Lee, Hob. 312. (/) Supra, p. 374. (h) Kibbet v. Lee. ( o-) Scrope's case, 1 Rep. 1 43 b.; F F 434 EFFECT 01 GENERAL DISPOSITION merit. By the latter, George was to be tenant in tail in possession upon his father's death ; by the former, Thomas was substituted for George, and he (George) was made tenant in tail in remainder. But the rule would hold equally true if there were no such inconsistent limitations, provided the context proved that the fee-simple in pos- session, and not the reversion in fee, was the subject of the disposition. 5. In Degg v. Lord Macclesfield (i), it was laid down that if a man has a power of revocation and of limiting new uses, and he grants to new uses, that has been over and over determined to be a revocation ; but if he has other lands then there is something for the words to operate on, and will not be a revocation of the lands over which he has a power. In that case a settlement had been made by which Simon Deg was tenant for life of estates in Derbyshire and Staffordshire, with re- mainder over, but with no further estate, although with a power of revocation in himself. By his will, not re- ferring to his power, he devised his Staffordshire and Derbyshire estates to trustees to pay his debts, and he had no other lands there ; and it was referred to the Judges of the Common Pleas whether the will revoked the settlement, and they determined that it did (k). 6. And of course such a power will be deemed well executed at law under such a general disposition, although in equity the power itself cannot be supported. Thus in the last case the power was improperly introduced into the settlement, not being warranted by the articles upon which the settlement was founded, and therefore, it was held in equity that the will only operated as a devise of the legal estate, still snbject to the trusts before declared by the settlement. 7. In (i) Sel. Ca. Cha. 44. (£) Deg v. Deg, 1st question, 2 P. Wins. 415. WHERE BOTH POWER AND INTEREST. 435 7. In Adams v. Adams (J), an undivided moiety was Adams ». settled to the joint appointment of husband and wife, and in default of appointment, in the usual way, in strict settlement, they and the survivor having a power to appoint to the children. By a joint appointment they appointed the moiety to themselves for life successively, remainder to the children, as they or the survivor should appoint ; and in default of such appointment, to the chil- dren living at the death of the survivor, as tenants in common in tail, &c, with a joint power of revocation and new appointment ; so that there was a material vari- ation in the uses. Then, by an agreement upon a parti- tion, a portion of the estates was agreed to be accepted in lieu of the moiety. This instrument did not notice the appointment, and the portion was agreed to be con- veyed to the uses of the settlement ; and by a regular conveyance, not noticing the appointment, the owners of the other moiety conveyed it to the uses declared by the settlement of the moiety therein comprised. The Court of King's Bench held that the agreement and conveyance operated as a revocation of the appointment, so that the uses of the original settlement were restored. 8. In the case of King and Melling rather a curious point arose. — A man was devisee under a will, with a power to jointure. He suffered a recovery to the use of himself in fee, and afterwards covenanted to stand seised to the use of his wife, for her jointure. The Judges were divided whether the devisee took for life or in tail, but they held, that supposing the power not barred by the recovery (which they thought it was), yet the covenant would not operate as an execution of it ; for as the devisee had got a new fee, though it were defeasible by him in remainder, yet the covenant to stand seised should (/) Cowp. 651. F F 2 430 EFFECT OF GENERAL DISPOSITION should enure thereupon, and the use should arise out of the fee : he was seised in fee, and the jointure was made without any reference to his power (in). 9. But where the disposition, however general it may be, will be absolutely void if it do not enure as an exe- cution of the power, effect will be given to it by that construction. This was the point decided in Sir Edward Clere's case. There, Harwood the settlor had by an act in his life-time disposed of two parts of the land ; over the other part he had a general power of appointment by will, with remainder in default of appointment to himself in fee, and he devised this portion generally. Now the land being holden in capite lie could not devise this third as owner of the land, and therefore it was solemnly decided that the will ought to operate as an execution of the power. Upon the principle of this de- cision, it should seem, that if a man having a general power of appointment, with a limitation to himself in fee, in default of appointment were to convey the estate generally by an instrument not adapted to pass his in- terest (as a bargain and sale unenrolled, or a release to a stranger without a previous lease for a year), and which would be totally inoperative as a conveyance of the interest, the instrument would be held to operate as an execution of the power, although the authority should not be referred to, either expressly or by impli- cation. 10. So where a married woman has a power, and an estate in default of appointment, and disposes of the estate, e.g. by devise, without reference to the power, the disposition will operate as an execution of the power, because otherwise it would fail altogether (n). On (?n) 1 Ventr. 214. 225. (n) Roscommon v. Fowke, 6 Bro. P. C.by Toml. 153. WHERE BOTH POWER AND INTEREST. 437 11. On the above principle it is, that where a man has both a power and an interest, and he creates an estate which will not have an effectual continuance in point of time if it be fed out of his interest, it shall take effect by force of the power (0). As, where a tenant for life, with power of leasing, grants a lease for a term abso- lute, without referring to or mentioning his power, the lease, if it be supplied out of his interest, would expire with his life, and it shall therefore operate as an exe- cution of the power (p). So where a tenant for life, with a power to borrow a sum of money, granted a rent- charge generally, as a fund for payment of the debt, it was deemed an execution of the power, and not a grant out of his interest ; because otherwise the payment might not be effected during the life of the grantor (q). But if a lease comprise fee-simple estates, as well as estates subject to the power, in which latter the donee has a limited estate, it seems a nice question, whether the deed shall enure by fractions, so as to be a lease out of the interest as to the fee-simple lands, and an appoint- ment as to the rest (r). 12. And if the estate be conveyed, and the settlor's wadev. interest will not support the settlement, it will be deemed ge ' an execution of the power, although the settlor mistook his title, and recited that he was seised in fee of the estate and conveyed it as owner. This was decided in the case of Wade v. Paget (s), where the owner had set- tled the estate on himself for life, remainder to uses in strict (0) See Roger's case, cited by (q) Blake v. Marnell, 2 Ball & Hale, Chief Justice, 1 Ventr. 2'28 : Beatty, 35. Earl of Leicester's case, 1 Ventr. (/•) See Bibell v. Dringhouse, 278. Mo. 64o; qu. why not? (p) Campbell v. Leach, Ambl. (s) 1 Bro. C. C. 364. 740; and see 10 Mod. 3C. h F 3 438 EFFECT OF GENERAL DISPOSITION strict settlement, in favour of his late sister's husband and their issue, he reserving- to himself a full exclusive power of appointing the estate to the children. Upon the marriage of one of the children the tenant for life joined in a settlement, by which he recited that he was seised in fee, and conveyed the estate to uses in favour of the marriage. This was a remarkable case. 1 . The power was not re- ferred to in the last settlement, but the settlor recited that he was seised in fee, and conveyed as owner of it ; 2. The settlement was not executed in the manner required ; 3. The settlement was in favour of persons not objects of the power ; 4. As the first settlement was voluntary, the second might have been supported under the 27 Eliza- beth. But the power was held to be well executed in equity : 1 . As the intention was to transfer the fee the power was called into action ; 2. The defect in consider- ation of the marriage was supplied ; 3. The niece being a party to the settlement, the transaction was considered, first, an appointment to her (£), and then a settlement by her ; and, 4. As the settlement could be supported in equity, it was considered as made under the settlor's title, created by the first (voluntary) settlement, and not in opposition to it (I). Dennv. 13. There is a good deal of doctrine in the judgment IvOaKC. delivered in the case of Denn v. Roake, in the King's Bench, which it would be unsafe to adopt, although the decision itself was supported in the House of Lords (u). Lord Tenterden said, the facts existing dehors the will were these : the estates had originally belonged to the father (/.) Vide infra. (u) 5 Barn. & Cress. 720, supra, p. 399 ; 8 Dowl. & Ryl. 5 1 \. (I) The reader must not look for these reasons in Brown. The case appears to be very imperfectly reported. WHERE BOTH POWER AND INTEREST. 4.39 father of the testatrix ; one moiety had descended upon her, and another upon her sister Roake. The two sisters and their husbands had settled their moieties in such a manner as to give the moiety of either who might die without issue, to the issue of the other, subject to a power to each to make a different disposition of her moiety by deed or will. The sister of the testatrix left issue, from whom the testatrix purchased the sister's moiety, and thus became seised of one moiety in fee, and of another for her life, with a power to dispose of the fee of the latter moiety. He then addressed himself to the ques- tion of intention to pass the entirety from the condition to keep the property in repair, and then added, " and even if it should be inferred from this part of the will that the testatrix meant thereby to give the entirety, still it will not necessarily follow that she intended to execute her power" — " It may be that she intended her will to work by her interest in the tenements. It may be that she had entirely forgotten the settlement, and supposed at the time of making her will that she was then seised of the entirety of the estates in fee, as but for the settle- ment she would have been." — " It appears to us to be at least as probable that she had forgotten the settlement, and intended the will to work by an interest as that she intended to execute the power contained in the settle- ment, and even more probable, because the language of the will is exactly such as would be used by a person who at the time supposed herself to have an estate in fee in the entirety of the tenements, and not such as would be used by a person who was conscious that she had a power only over a moiety, and a seisin in fee of the other. Although, therefore, we may think the testa- trix intended that the entirety should go in strict settle- ment on the family of her sister, yet we think it is possible to suppose that the testatrix had no intention to f f 4 execute 440 POWI.H .NOT EXECUTED BY GENERAL execute the power, and if the intention to execute the power be doubtful, the will cannot, in our opinion, be deemed to be an execution of it." The principle attempted to be established, viz. that there must not only be an intention to dispose of the property, but also to dispose of it under the power, was strongly observed upon in argument at the bar of the House of Lords, and the Author, who had to sustain the decision, felt himself unable to support the doctrine advanced in the judgment. If the intention to pass the property can be collected, it will pass under the power, although the donee supposed that it would work by force of his interest. There is no conflict ; he intends the property to pass, and thinks he has all the interest in it, whereas he really has only a power. The intention governs, and the power will support the disposition. 14. It is intention then that in these cases governs : therefore, where it can be inferred that the power was not meant to be exercised, the court cannot consider it as executed (x). Thus, if a man having several powers over different estates, and also interests in them, should recite the power over one estate, and execute it in a formal manner, and then recite, not that he has a power to appoint the other estate, but that he is seised in fee of it, and accordingly convey his interest in it by lease and release, the latter estate would be held to pass out of his interest, and not by force of his power, simply on the apparent intention not to execute the power (?/). This point arose in Maundrell v. Maundrell. Lord Eldon (<'> OF THE EXECUTION OF A POWER WHERE THE sent case is evidence that it was not the primary inten- tion of the parties to exercise the power. To the foregoing reasons another may be added, which seems more conclusive. By the conveyance it is evident that the parties wished to prevent a right of dower from attaching in their wives, and at the same time to keep the inheritance in themselves. This intention would have been effected by construing the instruments as a conveyance of Watts's interest, and appears to have been defeated by the construction adopted. For as the deeds were holden to operate as an execution of the power, the habendum to the purchasers and their trustee, their heirs and assigns, vested the fee in them, and the subsequent limitation to the purchasers and the trustee, and the heirs and assigns of the purchasers, was void at law, as a use upon a use, and was good only as a trust in equity. Wynne v. 28. In the late case of ^¥ynne v. Griffith (s), an estate had been limited to such uses as Humphrey Roberts and his wife, Mary Roberts, and Catherine Roberts should appoint. In default of such appointment, to such uses as the other three, if they should survive Catherine, should appoint. In default of such appointment, as to part to Catherine for life, and as to all, (subject to her life interest in part,) to such uses as Humphrey should appoint, and in default of appointment to him in fee. All the four joined in a marriage settlement by lease and release, and by the release they granted, bargained, sold, released and confirmed, directed, limited and appointed unto four other persons, (in their possession by virtue of the lease for a year, &c.) the estate in settlement, to hold the same to them, their heirs and assigns, to the same uses, &c. as the estate then stood limited to, till the mar- riage, and after the marriage to uses in strict settlement, with .«) 3 Bmg. 179; 10 Moo. 592. Griffith DONEE APPOINTS AND CONVEYS. 457 with regular limitations to the trustees to preserve contin- gent remainders, and with a limitation of a term of 500 years to them. It was held that the last mentioned deed operated as a conveyance of the interest and not as an execution of the power. It will be observed, that Cathe- rine and Humphrey could convey the fee without refer- ence to the power, and that neither of the powers could be exercised without the concurrence of both or one of them, and consequently after the conveyance of their estate, the powers never could be exercised. The inten- tion required that the deed should not operate as an ex- ercise of the power in the four, because the old uses until the marriage would have changed their character and become merely equitable, and the intended uses after the marriage would also have been equitable. As, therefore^ two of the conveying parties had the fee in them, the deed in favour of the intention was held to operate as a conveyance of the interest. Upon the case coming on at the Rolls, upon the certificate of the Common Pleas, it was argued that by giving effect to the instrument as an execution of the power, H. Roberts's wife might have become dowable contrary to the intention, and thereupon a case was sent to the Court of King's Bench, who con- curred in the judgment of the Common Pleas (t), and upon the case coming back again, the purchaser was de- creed to specifically perform the agreement. 29. In Farmer v. Bradford (u), William Peek settled an estate on his niece's marriage, to himself for life, re- mainder to a trustee for 500 years, remainder to such persons as William Peek should by deed or will appoint, and in default of appointment, to himself in fee. The trusts of the 500 years term were to raise 1,000/. after Peek's death for the benefit of the intended husband and wife (t) 5 Barn. & Cress. 923; 8 Russ. 283. Dowl. & Ryl. t70; and sec I (tt) 3 Russ. 35 1. Blown. 458 OF AN APPOINTMENT AND RELEASE. wife and their issue, with a trust fin an event which happened) for such persons as Peek should by deed or will appoint ; and in default of appointment, to the re- presentatives of the intended wife. After the event hap- pened, upon which Peek's power over the 1,000/. was to arise, he made his will and devised his estates at Lushill (the property settled) and all other his real estate to a nephew in fee, and gave him the residue of his per- sonal estate, and appointed him executor. It was held that the will operated strictly as a devise of the estate in fee under the testator's interest, and not as an exercise of the powers; and therefore that the 1,0*00 /. was raisable against the devisee, and would go as directed in default of appointment. Langiey u. 30. Where a person having a particular estate and also a power, makes a disposition containing words both of appointment and conveyance, yet it shall not operate as an appointment, and also as a conveyance against the intention of the party executing the instrument. Thus, in Langiey v. Brown (x), under a settlement previously to an intended marriage, the estate was limited to the intended wife for life, then to her in tail, remainder to her appointment generally ; in default of appointment, to her in fee. She, before marriage, by an instrument in pursuance of her power, did appoint, limit, give and grant the estate and the reversion thereof expectant upon her death, to her intended husband in fee, who was in possession, chargeable with monies to be paid after her decease. Lord Hardwicke appears to have considered that the instrument might have operated both as an appointment 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 otherwise, as the grant was intended only to take effect after her death, and not to pass any estate in possession. (x) 2 Atk. 195. WHAT QUALIFICATIONS MAY BE ANNEXED. 459 SECTION IX. OF THE QUALIFICATIONS WHICH MAY BE ANNEXED TO THE EXECUTION OF POWERS BY THE DONEES THEREOF. 13 14. 24, Donee may annex conditions : Escroio. Poivers of revocation and new appointment may be reserved. They are separate poivers. . Power to two and survivor : power may be reserved to survivor to revoke. ~\ Secus of a joint particular J power. , Original solemnities need not be required in new power. Power of revocation may be reserved, although not men- tioned in the instrument cre- ating the power. , Becket's case. , Hele v. Boyid. Where execu- tion by deed, no revocation good without power reserved by that deed. , Power in original settlement to revoke includes power to limit. \ Unless contrary to intention. "\ Or the power is reserved in > an instrument executing j the power. 19. Or the power is to a stranger to revoke. 21* Distinctions from the nature of the power — 1. Powers to appoint. 22. 2. Poiver of revocation. 23. 3. Power of jointuring. 25. Will executing a power always revocable. 26. Result of the authorities. 27. Power of revocation may be reserved, although power is simply collateral. 28. But power may by implication exclude a power to revoke. 29. Power of revocation required to be reserved. 30. Mere authority countermand- able. 31. Perrot v. Perrot, with obser- vations. 32. Power of revocation does not make appointment of per- sonalty, testamentary. 33. Direction by equity to make an appointment by a given day not complied with if power of revocation re- served. 1. A donee of a power may limit the event upon which the deed executing the power shall take place- Therefore, if a power be given to be executed by deed enrolled 460 DONEE MAY RESERVE POWER OF REVOCATION. enrolled in any court, the donee may direct the deed executing the power to be enrolled in some particular court, and until it is so enrolled the execution of the power will be imperfect (a). So, if he declare that when A doth pay 10.s\ the settlement shall be revoked, there it is not singly the deed nor payment, but both, that complete the revocation (b). And in like manner he may covenant to levy a fine, or suffer a recovery, with an intent to revoke the power ; and although neither of them is necessary, yet the power will not be well exe- cuted till the fine is levied, or the recovery is suffered (c). Hobart, Chief Justice, even laid it down, that a verbal declaration, that the execution of the power shall not take effect till a particular time, is good (d) ; which, it should seem, may be supported on the same principle that deeds in general may be delivered as escrows ; for, without doubt, a deed or other instrument inter vivos exe- cuting a power may be delivered as an escrow. 2. But the most usual qualification annexed to the execution of a power is a power to revoke and limit new uses. 3. A power of revocation, Lord Chief Justice Bridgeman said, is to some purposes construed as a condition, for it reduceth an estate back to him to whom it was at first limited ; but to some purposes it is construed as a limita- tion, for I may revoke part at one time and part at another. And if it be accompanied with a power to de- clare new uses (as most commonly such powers are) it varies more from the nature of a condition, for it revests not the estate to the party from whom it moved, as a con- dition doth, but vests it in others ; and if it do return to him (a) Digges's case, 1 Rep. 173. 1 Ventr. 27S. (l>) 3 Keb. 51 1 ; Raym. 239. (d) Kibbct v. Lee, Hob. 312. (r) Earl of Leicester's case, NATURE OF POWER OF REVOCATION, &C. 4G1 him who revoked it, yet it returns to him in another man- ner : he is not in of the old estate as in case of a condi- tion, but he may be, as the case requires, in of the old use (e). 4. In Grange v. Tiving (f), where the power was for Grange v. the settlor during his life, or for any of the heirs of his llvm °- body, to revoke, alter, change or determine all or any of the uses, and to limit and declare any other uses at his and their will and pleasure ; the settlor died, and his daughter, whilst a feme covert and an infant, re- voked the uses and limited the use to herself in fee. Bridgeman, C. J., conceived, that this proviso purported in it several powers : the first a power of revocation, viz. to revoke the uses limited by the deed ; and the words " revoke, alter, change or determine," seemed to be all synonymous in this place ; for if the uses were revoked they were altered, changed and determined. An altera- tion by limiting new uses was not intended within this part of the proviso, for it was expressly within the other power, which was a power of declaring new uses, viz. to appoint, limit or declare other uses at his or their will or pleasure. These two powers, viz. to revoke and declare new uses, were clearly two distinct poivers, though one act in declaring new uses alone may in some cases serve for both. The Chief Justice held, that the first power, viz. the power of revocation, might be executed by the heir of the body, although a feme covert and an infant ; as to the other power of declaring new uses, whether she could declare new uses by virtue of this power, he conceived it was not absolutely necessary for him to deliver any opinion in it, for if she might revoke the new uses it was sufficient ; the law would raise up the old use and vest the estate in her ; for by such revocation the estate settled in herself (e) Bridg. by Ban. 1 12 ; and see pp. US, 119. (/) Bridg. 107, 4(52 NAT! RE OF POWER QF REVOCATION, &C. herself as heir; and it was clear, though there powers of revoking mid declaring- were both in one proviso, yet he who hath both the powers may use the one and not the other. The words are " it shall be lawful." It gives a liberty, but it is not compulsory and entire as a condi- tion. He may execute the power of revocation by one deed, and the power of declaring new uses by another deed, and that proves he may execute one at one time and the other at another time ; and it follows upon it in reason he may use the power of revocation and not exe- cute the other. But yet he held that the infant, though she might revoke the uses to her mother, yet could not limit any use to her husband or any other stranger during her minority ; for that was apparent to her prejudice, and the wronging of her interest, and so against the reason and construction of law in like cases. And upon the same reason he thought if she declared the use to herself and the heirs of her body, it was a void declaration, for it was to her prejudice to have a fettered estate, and not perpetual, when she might have had it free and un- limited ; and if she declare the use to herself and her heirs, as in the case before him, it is no more than the law would have implied upon the bare power of revoca- tion, and therefore she shall be said to be in by virtue of the old use and not a new declaration ; so that, upon the whole, he held this power of revocation to be well executed. The doctrine laid down by Bridgeman, C. J., in the above case draws a marked distinction between the two powers of revocation and new appointment, which he treated as altogether distinct. A power to appoint new uses of course includes in itself a power to revoke, for without a revocation of the old uses there could be no appointment of new ones. A mere appointment under such a power without any express revocation would at once POWER RESERVED TO THE SURVIVOR. 403 once operate to revoke the old uses and appoint new ones ; but it would be difficult to maintain that in such a case the donee could revoke the old without appointing new uses, for the intention must be that he shall revoke only for the purposes of a new appointment. So in the common case of a power of sale and exchange, no revo- cation would be opei^ative unless followed up by a new appointment, for the powers are only the machinery to do one act, viz. convey the estate to a purchaser, or to some person in exchange. 5. If a particular power is given to two persons, or the survivor of them, with or without power of revocation, they may execute a joint appointment, and reserve a power to the survivor to revoke and appoint again. The argument against the validity of the power of revocation to the survivor was, that the original power did not authorize a joint appointment to be defeated by any but a joint revocation (g). But the joint appointment is allowed to be superseded by the revocation of the sur- vivor. This point was decided by Brudenell v. Elwes (h). Brudenell*. The original power was to the husband and wife, or the survivor of them, amongst the children, by deed or writing, with or without power of revocation, or by his or her will. They made a joint appointment by deed, with a power to them and the survivor of them, by any deed or writing, with or without power of revocation, to revoke and limit new uses amongst the children. The survivor exercised the latter power by deed, and the execution was supported. Lord Kenyon said, he saw no reason to doubt but that the appointment by the survivor alone (g) Brudenell v. Elwes, 1 East, (h) 1 East, 442; 7 Ves. jun. 442; 7 Ves.jun. 332. See Brown 332. v. Nesbitt, 1 Cox, 43. 464 POWER TO THE SURVIVOB RESERVED. alone was a good revocation of the prior appointment. The settlement meant to give a joint power of appoint- ment to the husband and wife during their lives, and after the death of either that the survivor should have equal power to revoke and make a new appointment. It seemed clear that an equal degree of confidence was reposed in both husband and wife ; and as it could not be foreseen what alterations the exigency of the family might from time to time require, it was thought more prudent to leave the survivor of them, whichever it might be, the same power to mould the appointment that had been committed to both while living. 6. In Ponsonby v. Ponsonby (£), father and son suf- fered a recovery of a settled estate, to such uses as they should jointly appoint. They exercised the power by settling the estate to uses in strict settlement, and re- served a power of revocation to themselves, and to the son, if he survived. He did survive, and appointed the estate to himself in fee, and devised it ; and the bill was filed to have his charges on it raised. The estate, which was of great value, was sold under the decree, and the purchasers objected that the power of revocation to the son alone was not well reserved. The Master reported in favour of the title, and the Lord Chancellor confirmed the report. The joint power was, in this case, tanta- mount to the fee. It is not like the case of a power to appoint to particular objects ; for under such a joint power an appointment with a power of revocation to one of them, or the survivor of them, would not be valid. 7. Thus it has been determined, that under a power to husband and wife, a will by the husband, indorsed by the wife after his death, expressive of her approbation of (i) Before Lord Manners, L. C. 1821, MS. NEW SOLEMNITIES MAY BE RESERVED. 465 of the disposition thereby made, and her confirmation of it, would not do ; because being a will revocable by the husband at any time, even if the wife had at the mo- ment subscribed a ratification of it, it could not be an appointment under the power, because it would reserve a power of revocation to one of the two parties, as the husband might revoke his will, but his wife could not (£). 8. Of course where the original power is a general one, and it is exercised, reserving a power of revocation, or of revocation and new appointment, the latter powers need not be reserved with the same solemnities as were re- quired by the first power (I). But it has been suggested (I) that in limited powers every subsequent appointment must be an appointment by virtue of the original power, and therefore must have all the circumstances required by that power. There is no authority for this position. The objects cannot be altered, but the formal mode of execution may, it is apprehended, be varied by force of a new power reserved. The original power must first be exercised in the manner required by the instrument creating it, but when that is complied with, there may be either a revocation or new appointment, in the manner required by the power in the first appointment. There can be no distinction between a mere power of revoca- tion and a power of revocation and new appointment, for the question wholly depends upon the intention of the first power ; and there is no more reason to suppose that (A) Bushell v. Bushell, 1 Rep. (/) 2 Prest. Abstr. 274. temp. Redesdale, 90. (I) The supposed resolution in Jones ». Countess of Manchester, 1 Ventr. 198, that always the new uses must correspond to those cir- cumstances, &c. which the first power appoints, appears really to have been the argument at the bar. Vide infra. H H 4(,f> M'.W SOLEMNITIES MVY BE RESERVE!*. thai tin- donor intended an appointment made according to his directions to be revoked by an instrument having none of those formalities, than that he intended an ap- pointment regularly made to be superseded, and new directions substituted, by such an instrument. But although he gave no express power to revoke and appoint new uses, yet the law, as we shall presently see, raises in the donee a right to reserve such new powers, and leaves it to the donee's discretion — after he has com- plied with all the formalities of the original power — to add such formalities as he may choose to his new powers. There are many cases in which the point arose, but it has never been questioned. In a leading case (in) the estate was limited to the children, as the husband and wife by deed or writing under both their hands and seals, or as the survivor of them by deed or writing under the hand and seal of such survivor, attested by two witnesses, or as such survivor by will, should ap- point. The survivor appointed and reserved power to revoke and limit the estate to the children as she should think fit, not confining herself to any particular mode of execution. She exercised her power of revocation and new appointment by a deed, executed in the presence of and attested by two witnesses, and probably the attes- tation was such as the original power required. The latter appointment was sustained without argument on this point. This case therefore decided that a new power to revoke and appoint may be reserved without any formalities, and if it may be reserved, it may no doubt be executed. In the later case of Brudenell v. Elwes (n), the original power (m) Adams v. Adams. Cowp. 382. See Winstandley's ease, 651. 3 Keb. 7 ; 2 Keb. 270, cited, (w) I East. 4-42 ; 7 Ves. jun. POWERS OF REVOCATION, &C. MAY BE RESERVED. 467 power of appointing to children was to the husband and wife or the survivor, by deed or writing, to be duly signed and sealed in the presence of three or more credible witnesses, or by his or her last will in writing, testified in manner aforesaid. By a joint appointment they re- served a power to them, and the survivor of them, by any deed or instrument in writing, sealed and delivered by them, or the survivor of them, and in the presence of and attested by two or more credible witnesses, to revoke and appoint new uses, which power the survivor exercised ; and the execution was supported, without any one having ventured to raise a question upon this point. 9. Although in the instrument creating a power there is no express authority to reserve a power of revo- cation, yet the donee may — whether the power be a general or special one — reserve by the instrument exe- cuting the power, a power of revocation, or of revocation and new appointment (o), and such a power may be reserved toties quoties (p). The principal point was decided in Adams v. Adams. The original power was to appoint to the children, and was given to the husband and wife jointly by deed or writing, or to the survivor by deed or will. The sur- vivor exercised the power by deed, and reserved a power to revoke and limit new uses amongst the children, and it was held to be a valid power of revocation and new limitation. 10. At an early period it was contended that no revo- Recket's cation of an appointment could be sustained, unless it was authorized by the original settlement. This was the doctrine in Becket's case, which is thus stated in Lane : (o) Adams v. Adams, Cowp. (p) Lady Hastings' case, 3 651 ; Earl of Cardigan r. Mon- Keb. 7. tague, App, No. 14. II II 2 case. 468 POWERS OF REVOCATION AND NKW Lane (q) : " R. B., 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 if 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 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 was a good revocation and limitation. It is evident that there is a chasm in the statement of the facts : I have attempted to fill it up with the words between crotchets. It appears clearly, from the judg- ment of the Court, that there was a second indenture executed, which also contained a power of revocation and limitation of new uses. Bromley and Altham, Barons, thought that the new uses were well raised by the third indenture and the fine, and they relied upon Digges's case, where it is said that upon such a power he can revoke but once for that part, unless he had a new power of revocation of uses newly to be limited, whereby it is implied that if he had a new power to appoint new uses, he may revoke them also. Snig, Baron, was of a contrary opinion, and said that he had not power to declare three several uses by the first con- tract, which ought to authorize all the declarations upon that fine, and then the revocation by the third indenture is good, and the limitation void, and then it shall be to the settlor and his heirs, for he having power by the first (g) Lane, 118. See ib. 91. APPOINTMENT MAY BE RESERVED. 469 first indenture to declare new uses, may declare them, with power of revocation, for it is not merely a power, but conjoined with an interest, and therefore may be executed with a power of revocation, and then when he by the third indenture revoked the former uses, now it is as if new uses had been declared, and then he may declare new uses at any time after ; and he said that such an indenture to declare uses upon uses was never made, and it would be mischievous to declare infinite uses upon uses. And Tanfield agreed with Snig, but on a different ground i 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. His opinion turned upon a technicality, which is entitled to no weight. The power, he said, in the second indenture was, that he may revoke and limit new uses, and that the fine shall be to the new uses and no others, and then if there be a revocation and no punctual limitation, he had not pursued his authority, for he ought to revoke and limit, and he cannot do one without the other. To the case is added a note, by which it is first stated that a power to revoke uses does not authorize a power to limit new ; 2dly. that all the uses which shall rise out of the fine ought to spring from the first indenture ; and then in the case above, the second indenture, and the limitation of new uses thereby, are well warranted by the first indenture; and in respect that this was not a naked power only, he conceived that they might be upon condition, or upon a power of revocation, to deter- mine them ; but 3clly. that the power to limit the third uses by a third indenture, after revocation of the second uses in the second indenture, had not any warrant from the first indenture, and without such warrant there could be no declaration of such new uses, which were not h h 3 470 PROSPECTIVE POWERS OF REVOCATION not declared or authorized by the first indenture ; which note, (the report says) for it seems to be good law. It will be observed that the power in the second indenture actually authorized a new limitation of uses : the question simply was, whether such new powers could be reserved in the second deed, unless specially reserved in the first deed. This is proved by Rolle's report of the same case, which is in these words : " If a man suffer a recovery, and limit the uses by indenture, with a power of revocation and limitation of new uses, and afterwards by 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 prceter Snig (r)." 11. The point ruled by Bromley and Altham, in Becket's case, has long been a settled point, and the one which Snig raised, and which the reporter enforced, has been overruled. And it is now well settled that where the power is executed by deed, unless a power of revocation is reserved in that deed, the appointment cannot be revoked (s) ; no, not even if the original power expressly authorize the donee in the most un- limited terms to appoint and to revoke his appointments from time to time ; for the law will not endure a pro- spective power like this, but on every execution a new power of revocation must be reserved. This was so- Heie v. lemnly decided in the case of Hele v. Bond, by Lord Chancellor Harcourt, and all the Judges of England (f), and (r) 2 Ro. Abr. 262, (B) pi. 2 ; 474- ; 1 Eq. Ca. Abr. 342 ; S. C. and see 3 Keb. 7. MS. See 2 Burr. 1148. See a (s) Hatcher v, Curtis, Freem. fuller note of this case than any 61 ; Worrall v. Jacob, 3 Mer. 256. in print, App. No. 5. (t) Hele v. Bond, Free. Chan. Bond IN A SETTLEMENT VOID. 471 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 all the Judges were ordered to attend at the hearing of the cause in the House of Lords, which they did ; and the Judges of the King's Bench declaring that the}' were still of the same opinion, the Justices of C. B. and the Barons of the Exchequer, by King, C. J. de- livered their opinions to be, that the power of revocation in the deed of the 16th March, 1684, [the first settle- ment] was no other than the common power of revoca- tion, expressing that particularly, and in many words, which the law is now settled to imply in every power, viz. That the party revoking may, if he thinks fit to reserve such power, revoke those new uses and limit new ones, and so on toties quoties, and that this might probably be inserted in special words in this power, because when the power of revoking the new uses and limiting other uses came to be first a question in Becket's case, 10 Ja. I. in 2 Rol. Abr. 262. (B) 2, and Lane's Rep. 118, it was doubted whether such new power could be reserved in the second deed, unless specially reserved in the first deed, though the law is now settled to be otherwise ; and that therefore this power is to receive this construction, that the party might revoke the new uses if in the deed of such revocation he would reserve a new power ; and so toties quoties ; and that in this case, Sampson reserving no new power of revocation in the deed of the 5th October, 1687, he had executed the first power, and settled the estate to the uses of the deed of 5th October, 1687, which he could not afterwards change or alter ; which opinion, being in effect the same with tisat of the Chancellor and the ii ii 4 Judges Rrown. 11-2 PROSPECTIVE POWERS OF REVOCATION Judged of the King's Bench, the Lords did affirm the said decree (it). This decision appears to have been founded on the anxiety of the Courts to restrain the reservation of such powers, and to assimilate powers to conditions at com- mon 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, embracing all future executions : the power is only tantamount to what may still be done by repeatedly reserving new powers of revocation ; but, practically speaking, the decision was a wise one, as it is desirable that the settlor should, if he wish to reserve a power to revoke the estate, express his intention on the face of the instrument. The de- cision has avoided great inconvenience, and led to none. Langiey«. 12. In a case before Lord Hardwicke a point nearly similar arose. By a settlement, powers of appointment were given to a woman ; and at the end of the settle- ment it was declared 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. She made an appointment, without reserving a power of revocation, 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 determinate 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 ap- point uses, and a power to revoke uses. Now the power to appoint uses was executed by the first deed, but the power («) MS. Rep. in Lincoln's-Inn Library. IN A SETTLEMENT VOID. 473 power of revocation was not executed till afterwards ; then the question would be, whether both might not be executed once, as they seemed to be distinct and sepa- rate powers. In Hele and Bond, he added, the power of revocation was executed ; and the doubt was, whether the uses could be revoked toties quoties, without reserv- ing a power of revocation (x). The very same point arose in a case before 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 re- porter says, " it was touched, whether the uses limited according to the power were revocable by the proviso, and Mainard said it might be a question" (y). Now it appears to be quite impossible to support this distinction. Lord Hardwicke distinguished the case before 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 appointed. The precise point, however, was actually decided by the cases 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 revocation and limitation of new uses, and certainly that, as we have seen, 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 ap- point new ones ; and, 3d, a power to revoke such new uses. (x) Langley v. Brown, 2 Atk. 195. (>/) Udal v. Udal, Aleyri, SI. 474 POWER OF REVOCATION IMPLIES uses. The Judges of B. R. certified " that the power of revocation and limitation of new uses in the first settle- ment 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 limited, unless a power of revocation should be again expressly reserved." The point therefore doubted in Udal and Udal, and Langley v. Brown, was the very question decided in Hele and Bond. The cases cannot be dis- tinguished. But we must not confound these cases with those upon powers of sale and exchange, or partition, for there, the uses limited under powers previously exe- cuted, are not revoked, but simply transferred to the estate bought or taken in exchange, or upon a par- tition (z). It is settled, therefore, that a power to revoke may be reserved in the instrument executing the power, and that in order to authorize a revocation such a power must be reserved in the instrument itself. 13. But a power in an original settlement to revoke the uses, will of itself authorize a limitation of new uses also. This has often been doubted (a). Mr. Powell in one place states clearly that in such cases new uses may be declared (b), whilst in a subsequent place he enters into a long discussion to prove the contrary (c). In the case of Smith and Wheeler («?), Twisden, Jus- tice, said, that whoever hath a power of revocation hath a power (z) See Earl of Uxbridge v. 2 Trea. Eq. p. 163, 2d edit.; Fon- Bayly, 1 Ves. jun. 499. There blanq. n. ibid, and 4 Cruise's Dig. appears to have been no founda- 232, s. 16 ; 2 Prest. Abstr. 276. tion for the argument that the (b) Vow. Powers, ?i4. charge in this case was revoked. (c) lb. 272. (o) Lane, 119, by the Re- (d) 22 Car. 2, 2 Mod. 40. porter; 2 Vol. Cas. & Opin. 97 ; A POWER OF APPOINTMENT. 475 a power of limitation, for this reason, because else the feoffees would' be seised to their own use. In the case of Fowler and North (e), no decision was made ; but Hale, Chief Justice, laid it down that a power of ap- pointment might with power of revocation be executed toties quoties. Lord Nottingham, when Lord Keeper, decided (f) that a power of revocation in an original set- tlement 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 ( APPOINTMENT IRREVOCABLE. 82. An actual settlement of personal property will not be deemed testamentary, so as to subject the settle- ment to legacy duty, because a power of revocation is reserved (m). 33. In Piper v. Piper (m), a man having a power to appoint a fund under a will, was, upon a bill filed, or- dered to make an appointment within a time limited. He made an appointment within the period, but reserved a power of revocation, which was considered an evasion of the order ; but the Court, instead of correcting the evil by striking out the power, treated the execution al- together as a nullity. It would be difficult to support the decision. The Lord Chancellor, in affirming the de- cree at the Rolls observed, that the Court said, " You shall appoint within a given time, otherwise your chil- dren take absolutely." He did what was tantamount to saying " I do not appoint within that time, but shall do so some day or other before I die." But we may observe, that the appointment had an immediate operation. The appointment was not deferred to a future day ; but the right was reserved at a future day to revoke it. The whole would have been set right by merely expunging the power of revocation. We shall have occasion in another place to consider what conditions may be annexed to estates limited under particular powers. (wt) Tompson v. Browne, 3 Myi. (??) 3 My]. & Kee. 159. & Kee. 32. [ 401 1 491 CHAPTER VII. OF THE ESTATES WHICH MAY BE CREATED UNDER POWERS OF APPOINTMENT. IN treating of this important branch of our subject, I propose to consider: 1. What estates may be created in point of perpetuity. 2. The construction of powers in general. 3. Where an exclusive appointment is autho- rized. 4. What is deemed an illusory appointment. SECTION I. WHAT ESTATES MAY BE CREATED IN POINT OF PERPETUITY. 1 . What estates may be created in original instruments. 2. Unborn son tenant for life-, but his children cannot take as purchasers. 3. But child in ventre sa mere a life in being. 4. General power, "warrants same limitations as a seisin in foe. 5. Particular power only such as •would have been good in the settlement. 6. Distinction where power is cre- ted by will. 7. Power to a person in esse to appoint amongst any issue, may be exercised amo?igst those born in his lifetime. 8. Executed by will, construed as a proper will. 1. Before we enter into the consideration of the estates which may be created under powers in point of perpetuity, it will be necessary to ascertain what estates the law will not permit to be created under an original instrument, by reason of their tendency to a perpetuity. Mr. Justice Buller, in delivering judgment in Robinson v. Hardcastle, 4!»2 WHAT ESTATES MAY BE CREATED 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 a power, because every execution of a power must be 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 doubted 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. 2. 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 arose 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 the word- ing of the will arose from a notion in the drawer that you cannot make an after-born son tenant for life. I have known such a notion prevail in the country, though nothing (a) 2 Term Rep. 241. (b) See 2 Wils. 337. IN POINT OF PERPETUITY. 493 nothing is more untrue (c)." And it is incontrovertibly settled, that an unborn son may be made tenant for life, and that a vested remainder may be limited 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 pos- sibility, which the law could not endure (e). Mr. Fearne was of the same opinion (f), and in Hay v. the Earl of Coventry (g), Lord Kenyon said it was clearly settled, that an estate for life may be limited to unborn issue, provided the devisor does not go farther, and give an estate in succession to the children of such unborn son ; by which expression it is clear that he meant that the children could not take as purchasers. This is proved 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 (h) ;" 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 unborn, 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 be void (i) ; and we learn from Lord Kenyon that this doctrine was afterwards recognized by the learned Chief, who delivered the opinion of the Judges on the case (c) Evans v. Astley, 2 Blackst. 435, 440. 523. (/) Posth. 215. (d) Routledge v. Dorril, 2 Ves. (g) 3 Term Rep. 86. jun. 357. (A) 1 East, 452. (e) See 2 vol. Ca. and Opin. (i) 5 Bro. P. C. 60S. 491 WHAT ESTATES MAY BE CREATED case in the i louse of Lords (k). Indeed ;i limitation like this is clearly void by reason of its tendency to a perpetuity, independently of the technical objection of its being a possibility upon a possibility, which pro- bably means the same thing. For, in the first place, a life not in being at the creation of the limitation, and a few 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 ges- tation may be required, as the tenant for life may in like manner die, leaving a child in ventre sa mere, so that a century may easily elapse before the entail 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, by force of the limitation, tied up for more than a life in being, 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 limitation cannot be affected by legal consequences (7). It is, we may ob- serve, now clear that the law will, in the case of an executory devise, permit the twenty-one years to be taken independently of the birth and infancy of the devisee (m). 3. But as a child in ventre sa mere is considered as a life (k) See 1 East, 453. 1820, MS. {1) See 4 Ves. jun. p. 328 ; but (m) See Gilb. on Uses, 270, n. ; see 12 Ves. jun. p. 232. See 5 Barn. & Aid. 804; 1 Turner, Lord Southampton v. Lord Hert- 25 ; Bengough v. Edridge, 1 Sim. ford, 2 Ves. & Bea. CI ; Marshall 173 ; Cadell v. Palmer, 1 Clark & v. Holloway, Lord Chan. June Finel. 372. IN POINT OF PERPETUITY. 495 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 (»). 4. To proceed to the immediate point of inquiry : — An important distinction is established between general and particular powers. By a general power we under- stand 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 (o). A general power is, in regard to the estates which may be created by force of it, tantamount to a limitation in fee, not merely because it enables the donee to limit a fee, which a par- ticular 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 whenever his necessities or wishes may lead him to do so. It has been held that such a power is within the exception in the old annuity act of estates of which the grantor is seised in fee (p). Therefore, whatever estates may be created by a man seised in fee may equally be created under a general power of ap- pointment ; and the period for the commencement 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, that if A were to convey his estate to his unborn son for life, remainder to the sons of that son as purchasers, the limitations to the children of the son would be void, as tending to a perpetuity ; but if A were (h) Thellusson v. Woodford, (o) See Butler's note to Co. 1 New Rep. 393, where the ob- Litt. 271 b; and see Powell's servation, although addressed to note to Fearne's Ex. Dev. p. 327> an unborn child generally, is evi- n. (a); ib. 371, 377. dently confined by the context to (p) Halsey r. Halls, 7 Term, a child in xentre sa mere. Rep. 194, 4!><> WHAT ESTATES MAY BE CREATED were to convey liis estate to such uses generally as he should appoint, he might afterwards, upon the birth of a son, limit the estate to that son for life, remainder to his sons as purchasers, in precisely 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 ge- neral 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 only, 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 (y) : " 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 mean time, 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 in- strument 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 declaration were made in the exercise of a special power; 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, being unborn at the time of the creation (q) Powell's n. to Fearne's Ex. Dev. p. 5. IN POINT OF PERPETUITY. 497 creation of the power) attained twenty-one. Or, taking it in another point of view, the person in whom the fee is vested, subject to the power, could not alien his estate, but subject to be divested by Cs issue (if any), and such issue would take the fee-simple 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 cannot fail to observe, that neither with regard to the limitations themselves, nor to the estate limited in de- fault of appointment, is there any objection whatever on the ground of perpetuity. In regard to the limi- tations, they are merely such as a man seised in fee might create ; and, as the power is equivalent to the fee, 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 at a shadow whilst the substance escapes. By the creation of the power no perpetuity, not even a tendency to a perpetuity, is effected. The donee may sell the estate the next mo- ment ; and when he exercises the power in strict set- tlement 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 person who takes until appointment, no perpetuity in regard to him is created beyond the life of the donee of the power. And when the power is executed, it is immaterial to him what estates are cre- ated by it, for in whatever mode the fee is disposed of, his estate is defeated. But it certainly is not necessary to advert to his estate, as the grand object of the law's anxiety against perpetuities — the restraint of alienation — is in this case avoided. The donee may, notwith- standing the estate is limited over to a stranger, dispose of the estate in the same manner as if he were seised in k k fee. li"S WHAT ESTATES MAI BE CREATED Pee. There appears, therefore, Jo be no solid principle upon which the distinction taken by Mr. Powell can be supported 5. 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, hut 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 valid if limited 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 settlement an estate be limited to A for life, remainder to his children as he shall appoint, and he afterwards appoint to a son born subsequently to the settlement for life, remainder to the children of that son as purchasers, read the limitations as if inserted in the settlement in the place of the power, and they will stand thus : to A for life, remainder to his unborn son for life, remainder to the sons of that son as purchasers. Now the limita- tion to the grand-children would have been void if con- tained in the settlement ; and therefore it cannot be sustained as a due execution of the power. 6. But it is important in these cases to consider whe- ther the power was created by will or deed ; this speaks from the execution of it, that from the death of the testator ; so that in the case of a power created by will, children born in the testator's life-time, though after his will, stand in the same situation as children born at the execution of the deed where the power is created by deed (r). We must be careful not to destroy this distinction (r) Duke of Devonshire r. Lord G. Cavendish, 4 Term Rep. 741. IN POINT OF PERPETUITY. J 1 )') distinction by extending it to an instrument executing a power; for whether the power be executed by deed or will, the limitation, in regard to the question of per- petuity, must, receive the same construction. The point of inquiry is the instrument creating, and not the instru- ment executing, the power. 7. It remains to observe, that a power may be given to a person in esse, to appoint an estate amongst his grand-children, 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) (s). There is no objection to the due execution of such a power on the ground of perpetuity. And a power to appoint to " issue," includes all issue, however remote, born in due time (t). 8. But although a limitation under a power may be void, as too remote, yet where the power is executed by icill, the courts will construe it as a proper will, and endeavour to put such a construction on the limitation, as will bring it within the proper limits. This will be considered hereafter (u). (s) Hockley v. Mawbey, 1 Ves. (t) Hockley v. Mawbey, ubi jun. 150; Routledge v. Dorril, sup. 2 Ves. jun. 357. («) Vide infra, ch. 9. (I) As to the effect of an appointment to those born afterwards, vide infra, ch. 9. K K 2 500 OF THE ESTATES WHICH MAY BE CREATED SECTION II. OF THE ESTATES WHICH MAY BE CREATED UNDER POWERS IN GENERAL. 4. Fee may pass although power do not contain words of in- heritance. Wyltham v. Wyhham, "with ob- servations. Power to dispose authorizes the gift of a fee. 7 . So if the words are in such manner and form. 9. Kenworthy v. Bate. 10. Estate tail in objects although there is a power to appoint to them. Portions cannot be appointed before they are wanted. Unlimited power to charge authorizes a gift of the whole. 1 3. Power to s:rant the land au- thorizes a charge on it. 1 6. But equitable execution only. 19. Whether a rent-charge may be appointed under the words estates or interests. 1] 12 22. Lease for years bad under power to lease for lives. 24. So of jointures. 26. But supported in equity. 25. Result. 30. Less estate may be given under power to appoint the fee. 32. So of chattel interests, fyc. 33. Power for term absolute or on lives. Power to grant an interest in possession, a reversion bad. Where only one object left, de- terminable interest cannot be appointed. 42. Power confined to division ceases when only one object. 43. Unless he does not take in de- fault of appointment : Boyle v. Bishop of Peter- borough. 45. Reade v. Reade, with observa- tions. 36 37 1. We are now to consider the construction of powers in general, which may be arranged under three heads, viz.: 1. What estates may be created under powers in general; 2. What acts are authorized by different powers ; and 3. The construction of limitations in in- struments executing powers; reserving the considera- tion of such powers as appear to require a separate ^ discussion. UNDER POWERS IN GENERAL. 501 discussion. And first, as to the estates which may be created under powers in general. 2. Where the intention is clear, 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, because the testator gives the same power he himself had (a). 3. In Wykham v. Wykham, where by a power in a w y j^ t '' will the tenants for life were merely authorized to ap- point the estate to trustees, upon trust to raise a jointure for any wife they might marry, during her life only, the power in the King's Bench was held to authorize a limitation to trustees in fee (b). Upon the same case the Court of Common Pleas certified that the appoint- ment was void (c). These opinions were delivered upon cases directed by the Court of Chancery. If either opinion was right, a recovery, upon the validity of which the cause depended, was good — so that it was only neces- sary to decide that there was no tertium quid. Lord El- don observed, that the strong inclination of his mind was, that the mode of executing this power, which, if the devisee had merely entered into a covenant, Equity would have decreed, was by limiting a rent-charge to the wife by way of jointure, which were the very words of the power; securing that rent-charge, if not by the ordinary power of entry and distress, by a term, vested in trustees for ninety-nine years, if she so long live, or rather not expressly if she so long live, but with a proviso for cesser of the term on payment of the jointure during her life, and all the arrears due at her death, and that would not have gone to disturb any of the uses after mentioned. Notwithstanding (a) Liefer. Saltingstone, 1 Mod. East, 45S. 189, infra. (c) 3 Taunt. 31 i. (f>) Wykham v. Wykham, 11 K K 3 oW2 UIIEIU: THE FEE MAY BE Notwithstanding the repeated discussions, the point in question remained unsettled. The objection to the construction adopted by the Court of King's Bench is, that the power did not include the word heirs, and the trust was expressly restrained to the life of the wife ; and their construction authorized any one tenant for life in possession to convert the legal remainders over into equitable estates (I), so that no subsequent tenant for life could raise a legal jointure ; and besides, there were other powers which would, after an appointment in fee, operate only in equity. On the other hand, it might be fairly said that the power was to vest the property in trustees, and a larger estate than for the life of the lady might be necessary, in order to secure the arrears. As therefore the quantity of interest was not defined, it was left to the discretion of the donee, and of course an estate in fee created by him would not affect the actual interests of the other parties under the will. The power no (I) This of course would be the operation if the fee passed. In the argument in the King's Bench, (11 East, 476), Le Blanc, J. observed, upon the assumption that a life estate only passed, that the succeeding tenants for life in possession would only take equitable estates during the continuance of the first jointuring trust estate, and that broke in upon a great part of the argument in favour of an estate of freehold, as to changing the nature of the estates which the testator meant to give them: and Bayley, J. observed, (11 East, 477), that supposing the first jointress to be living when the second son came into pos- session, he would only have an equitable estate pur autre vie in the surplus of the rents and profits, with a legal estate in remainder, which •would be a different estate from that which the first son took. These ob- servations, although perhaps not strictly inaccurate, may tend to mis- lead. The effect of the preceding estate of freehold, if such an estate had been created, would have been to postpone the vesting in pos- session of the estate for life of the next remainder-man; but still that estate would have been a vested legal remainder. During the life of the jointress the remninder-man would have had an equitable right to the residue of the rents after payment of the jointure rent-charge. APPOINTED. 503 no doubt was large enough to authorize the limitation of the fee, if such was the intention ; and if it was con- fined by construction to a less estate not depending upon the option of the donee, it might be considered doubtful whether he was at liberty to create a freehold, or only a chattel interest in trustees. The opinion of the Court of King's Bench might therefore have been supported on plausible grounds. Lord Eldon's con- struction is not free from objection, for it is simply the common mode of limiting a jointure rent-charge to the wife herself, with a term to secure it; but the power expressed no such thing, but that the estate might be appointed to trustees upon trust to raise the jointure. It was easier to say with the Common Pleas, that the actual execution was void, than to point out what would be a valid appointment (I). 4. A general power to dispose of an estate in favour of a particular object will authorize the limitation of a fee, although no words of inheritance are contained in the power. This was decided in the 26 Car. 2, in a case which underwent great consideration Ul). 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 authorized to limit to the children. Upon the second argument, Vaughan, Chief Justice, and Atkins, seemed to incline that she should have power to dispose of an estate for life only, because, if the testator had said, / dispose of it to my son, it would have been but an id) Liefe v. Saltingstone, 1 Mod. 2 Lev. 104; Cart. 232; and see 189; 1 Freem. 149, 163, 176; Anon. 2 Kel. Cha. Ca. 6. (I) Sec some opinions upon this case, Appendix No. \5. K K 4 504 WHERE THE FEE MAY BE an estate for life. But Windham and Ellis held other- wise, as there was a difference 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 (I) (e). 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 way the children would take it 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, sen- tentice numerantur non ponder antur. 5. In Leonard Lovie's case (f) the uses of a feoffment were declared to be to the use of the settlor for life, with power to make leases, and then to the use of the 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. 6. J n (e) See 1 Freem. 16k (/) 10 Rep. 78. (I) Levinz states, from the relation of a friend, that Vaughan and Atkins were in favour of a fee, and Windham and Ellis contra; but he was misinformed, 2 Lev. 101, now. Sir Richard Saltonstall's case. APPOINTED. 505 6. In Tomlinson v. Dighton, so often quoted (») Uses, vol. 1, 115, n. Long. .')08 OPERATION OF A though the limitation be to the heirs of the body, in such shares and proportions, &c. as he himself* shall appoint (n). 11. We shall hereafter sce(o) that where portions are to be raised at sneh times as the father shall direct, and he appoint a present interest to a daughter under age not requiring a portion raisable immediately, such an appointment is against the nature of the power. Long*. 12. It has been ruled, that in equity an unlimited power to charge an estate will authorize a disposition of the estate itself, in trust to sell and divide the money amongst the objects. This was decided by Lord Rosslyn in Long v. Long Qo), 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 late Master of the Rolls, addressing himself to this judg- ment, said, that it determines this, that to enable a person to sell land it is not necessary to have that authority given to him {q). The terms of the settlement in Long v. Long, gave room in a peculiar degree for that implication ; for it might be contended that was only (n) Doe v. Jesson, 5 Mau. & tiffs insisted, that under the power Selw. 95; 2 Bligh, 1 ; Doe v. the whole value of the estate Goldsmith, 7 Taunt. 209; 2 Marsh, might be appointed so as totally 517. to exclude the eldest son. (o) Infra, ch. 15. 0/) See 6 Ves.jun. 797 ; 1 Ves. (p) 3 Ves.jun. 4-45 ; Reg. Lib. & Bea. 47 8. B. 1799, lb. 1023. The plain- POWER TO CHARGE. 509 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 nothing 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 (r). 13. The converse of the decision in Long v. Long, Dixaii. 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 Roberts v. Dixall (s), where a father had a power to appoint and divide the estate among his younger children in 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 was 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 what 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 mean to tear it to pieces, whereas now the estate would be kept entire ; and (r) Vide infra. Reg. ; Palmer v. Wheeler, 2 Ball (5) 2 Eq. Ca. Abr. 668, pi. 19; & Beatty, 18 ; Trollope v. Lin- S. C. Appendix, No. 17. The ton, 1 Sim. & Stu. 477. facts and decree stated from Lib. 510 WHERE ti;i-i ESTATES may ue and it was better for the daughter, and perhaps thought so by the testator, that she should have a sum of money, than a small estate ; and though the will might not enure as a good execution of the power in strictness, yet within the meaning and design of it, it was a good charge for the young lady's benefit. 14. And such an intention can always be well exe- cuted at law in such cases. For the estate may be limited to the child for whom a portion is intended, subject to redemption by the child to whom the fee is appointed, and the fee may be actually appointed to such child in fee, in remainder expectant upon the term. And this is the common practice. Kenwortby 15. The case put by Lord Hardwicke in the preceding decree, as admitted in argument, occurred in specie in the late case of Ken worthy v. Bate (t). The father had an exclusive power of appointing to any of his children. He gave the estate to trustees, to sell, and divide the money amongst his children. The Master of the Rolls treated this case as infinitely less strong than Long v. Long, which, as we have seen, was a direct determina- tion 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. 16. The principle of the late decisions has been ex- tended in practice ; and some gentlemen treat the case of Kenworthy and Bate as a decision that the power was legally executed. 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 (t) 6Ves. jun. 793. See 1 Ves. & Bea. 73; Bailey v. Lloyd, 5 Russ. 330. APPOINTED. "> 1 1 parties were to join (u). We shall see, however, that even in such a case as Thwaytes and Dye, which we shall presently notice, the execution was deemed equit- able only ; and Lord Hardwicke admitted, that in Roberts v. Dixall, the power was not legally executed. Of course in Long v. Long, the execution was deemed valid in equity only (x). In most of these cases it may well be held that the power is substantially executed ; but consistently with the established rules on the con- struction of powers at law, it could not be determined that a power to charge includes 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 would not advert to the trust. The party not being an object of the power is of itself 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 wife herself only (y). Nor is the case of Peters v. Masham, which will be hereafter stated, an authority against this rule ; for there it was considered that the donee had only to select the land, and not to limit the estate (z). These, therefore, cannot be considered as cases of legal execu- tions. To make them so, a power to give the estate to A must be read as if it authorized a gift to any other person for his benefit. Even in cases like Thwaytes v. Dye, and Browne v. Taylor, to which we shall presently refer, (u) Reg. Lib. A. 1801, fol. Keymis, supra. 1000. (y) l Atk. 563, 564; and see (x) See Reg. Lib. B. 1799, fol. Ambl. 341. 1023. The eldest son was di- (z) Fitz. 156; Fortes. 339; a reeted to join in the conveyance common law authority, when of age; and see Jenkins v. ">1"^ WHERE TRUST ESTATES MAY BE APPOINTED. refer, a court of equity could scarcely hold the power legally executed, without the last case having been first over-ruled in a court of law. 17. In Churchman v. Harvey (a), where the power was to limit the estate unto or to the use of any woman the donee should marry, for her life for her jointure, and the donee appointed the estate to trustees for ninety-nine years, if his wife should so long live, the power was held badly executed at law in substance ; but Willes, Lord Commissioner, observed, that a conveyance to trustees for the benefit of the wife was not a legal execution of the power. Wilmot, Lord Commissioner, said, that all these powers must operate as a declaration of the use, and always as if the limitation had been in the original deed. It cannot be appointed to a stranger, because there can- not be a limitation of a use upon a use. But this, we must bear in mind, does not apply to- common law authorities (b). 18. In Trollope v. Linton (c), where the point did not call for a decision, as the power was merely an equitable one, and it is not doubted that such an execution is good in equity, Sir John Leach, V. C. is reported to have been of opinion that creating a term of 500 years in trustees, to raise portions for children, was a good legal exercise of a power of appointing to the children for such estate or estates, in such parts, shares and propor- tion, and in such manner and form, as the appointor should think fit, and that the words " manner and form" enabled him to give equitable estates to his chil- dren. Thwaytesv. 19- In a case of frequent reference, prior in point of time even to the case of Roberts and Dixall, under a power (a) 1 Ambl. 339 ; App. 1, p. (b) Supra,p.25\. 824, to Blunt's edition, 2d vol. (c) 1 Sim. & Stu. 477. WHERE A RENT-CHARGE MAY BE APPOINTED. 513 power to appoint to children for such estate and estates, [or 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 charged the estate, which would then go to his eldest son under the settlement, with portions for his daugh- ters (d). The execution of the power was resisted by the eldest son. The testator might, it was said, have distri- buted the land amongst his younger children in what proportions he thought fit, but had not power to devise a rent-charge, or sums of money ; but the Court over- ruled this plea to the daughters' bill for their portions, and the decree was affirmed in the House of Lords. 20. 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, for such interests, or other- wise, as he should specify, did not authorize a limitation of a rent-charge, but a disposition of the estate of the land only (e). 21. In the Earl of Bath's case, Mr. Baron Powell, addressing 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 v. Taylor, where there were three Judges against one ; but really he thought it was good in law(y). From the present temper of the courts, there seems no reason (d) Thwaytes v. Dye, 2 Vein. Car. 38 ; and see Lord Arundel 80, Raithby's ed. ; 3 Cha. Ca. 69. v. Earl of Pembroke, Dy. 263. See Ambl. 393. {/) And see Middleton v. (c) Browne v. Taylor, Cro. Pryor, Ambl. 393. L L 514 WHERE A CHATTEL INTEREST reason to doubt that in a case like Thwaytefl V. Dye it vohUI, 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 determination, therefore, would be authorized, 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 seems clear that in a similar case the courts would, at this day, decide that a legal rent might be limited under the power. 22. In Whitlock's case (g) 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. 23. But in that case a distinction was taken between such a particular power affirmative and a general power restrained with a negative, as a power generally to make leases, with a proviso that they should not exceed three 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 abso- lute 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 qualifies 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. Rattle v. 24. The first resolution in Whitlock's case appears to have been much debated in a case called Rattle v. Pop- ham, (g) S Rep. G9 b; S. C. 1 Brownl. 169, nrtm. Chappel v. Whitlock. Poph am. MAY BE APPOINTED. Slfi 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, deter- minable on the death of his wife ; and it was determined in the Court of King's Beneh, whilst Lord Hardwicke was Chief, that however she might be entitled to relief in a court of equity, it could never be said to be an exe- cution of the power ; for the estates are very different, one being a freehold, and the other a chattel, and the freehold in her being a qualification to any future hus- band to be a member of parliament, kill game, &c. But if the power had been general to provide for a wife so as that he did not make a greater estate than for life, because an estate for years determinable on a life is a less estate, such an estate might have been raised by virtue of the latter power, which authorizes the creation of any estate that is not greater than an estate for life (i). And the Court founded their decision on Whitlock's case, and treated it as a very plain case. 25. The point was again ruled the same way in Churchman v. Harvey (k), where the power was to limit the estate unto or to the use of any woman he should marry, for her life, for her jointure. The donee of the power appointed the property to trustees for ninety-nine years, for a jointure for his wife, if she should so long live ; and it was held to be badly executed at law, although entitled to support in equity. Rattle and Popham was professed to be followed, and an additional reason was given why an estate of freehold was required to be in the wife, (h) Str. 992; Cunn. 102; and (?') See 10 East, 181. see 2 Ves. 644; and see accord- (Jc) Ambl. 33.5, & Blunt's edit, ingly Churchman v. Harvey, Amb. App. I. 335, the same point decided. L I. 2 ■ 16 WHERE A CHATTEL INTEREST wife, viz. to prevent the next in remainder suffering a common-recovery during her lite. 2G. In a case before Lord Mansfield, he said, that in the case of Rattle v. Popham the Court thought them- selves 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 from the same premises, the power and the lease, without any other circumstance, held the lease to be warranted by the power. He said it was not a defective, but a blundering execution ; and he decreed the defendant to pay all the costs, both at law and in equity (/). Lord Mansfield adduced this decision of Lord Talbot'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 Mans- field 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 (ni) ; and Lord Eldon agreed with Lord Redesdale (n) ; and indeed, notwithstanding 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 law, but he relieved the wife against the defective execution, on the general rule of equity (o) ; and on the same principle, viz. relief by a court of equity against the defect, Lord Nottingham, when Lord Keeper, is reported to have said that the resolution in Whitlock's case might be laughed at (/?). 27. In (/) 2 Burr. 1147. (o) S. C nom. Newport v. (m) 1 Scho. & Lef. 71. Savage, MS. App. No. 18. (rc) 18 Ves. jun. 415. (/;) ! Freem. 308. MAY BE APPOINTED. 517 27. In a late case (q), where a power authorized a lease " for any number of years not exceeding twenty- one years, or for the life or lives of any one, two or three person or persons, so as no greater estate than for three lives be at any one time in being in any part of the premises," the Court held, that the power authorized a lease for years, or a lease for lives, but not a lease for years determinable on lives. They relied upon the dis- tinction in Whitlock's case, where the power, as in this case, particularized the species of lease, and they treated the case of Rattle v. Popham as well decided at law. They observed, that the power authorized the grant of either a chattel or a freehold lease, the former not to exceed twenty-one years, nor the latter three lives : It was in the alternative to grant either the one or the other, but not both ; so that the same premises could not at any one time be under leases for both years and lives. 28. The result of the authorities appears to be, that, subject to the distinction taken in Whitlock's case, where a freehold interest is authorized to be appointed under a power, a different species of estate, although less valuable, as a term of ninety- nine years determinable with the life, cannot at law be granted. But that in equity such an execution will be supported, 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 (r). This equity does not extend to leases under the usual power of leasing. There a different interest cannot be granted, although an (q) Roe v. Prideaux, 10 East, (r) See 2 Ves. 645; Church- 158* man v. Harvey, Ambl. 333. L L 3 jlti WHERE A l.LSS ESTATE THAN A an excess in the quantity of interest may he corrected in equity. 29. But although a different interest cannot he given from that designated in the power, for example, a chattel interest instead of a freehold, yet it seems, that where the nature of the interest is the same, the appointment will he good at law as well as in equity, although the power is not executed to its fullest extent. 30. Of course, if a power expressly required 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 authorizes the appointment of a fee, and there are not any express words of restriction, it has been con- tended in practice that a less estate cannot be given (s). But in the case of Bovey v. Smith, it was said by the Court that where a man has a power of appointing a fee, he may execute it at several times, and appoint an estate for life at one time, and the fee at another time(£). ri.eipi. And the case of Phelp v. Hay (u) 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 assigjis, in such manner, form, &c. as the donee may choose, an estate tail may be given. The estate belonged to the lady, and by the marriage articles was to be settled for the use and benefit of her husband and herself, and the issue of their two bodies, in such manner, &c. as she should appoint. By a fine after marriage the estate was vested in a trustee in fee for her husband and her- self for life, and then to such uses generally as she should appoint, and in default of such appointment, to her right heirs. By an appointment, after the death of her husband, which referred to the articles as well as the fine, (s) See Snape v. Turton, Cro. (/) ] Vern. S4-. Car. 17'J. u) MS. Appendix, No. 16. FEE MAY BE APPOINTED. Ml fine, she appointed the estate to herself for life, and then to the use of her three children, or to any or either of them, their, his, or her heirs and assigns, in such manner and form, and by and after such rates, shares, and pro- portions, and charged and chargeable with such sum and sums of money unto and amongst an}^ or either of them, and at such time or times, as she should ap- point ; in default of appointment, to the children as tenants in common in fee. She by her will appointed a sum to one child, and the estate, subject to that, to another (as the Court determined) in tail, with remain- der to the first in tail. And Sir Thomas Sewell, Master of the Rolls, decreed in favour of the appointment. The power operated only on the equitable estate, and the original power, it will be observed, by its general terms, authorized a limitation in tail or in fee ; but the first appointment appointed the estate to the children, or any of them, their, his, or her heirs and assigns, in such manner, proportions, &c, as she should appoint ; and in default of appointment to them in fee. This was a good exercise of the original power. Now the will ex- ercised the derivative power, and therefore the decision was, that an estate tail may be appointed under a power to appoint to objects, their heirs and assigns, in such manner, &c. as the donee shall appoint. In the latter power the words " for such estates and interests," were not to be found. But no doubt the original power, if necessary, might have been brought in aid of the execution by will. 31. In powers of sale the party should be authorized to appoint the estate to such uses as may be necessary to effectuate the sale (#). 32. The case of Phelp and Hay only shows that a less interest may be appointed than that authorized where .<•) Infra, eh. IS. 520 WHERE Tllfi INTEREST APPOINTED where the interest is a freehold. But the same prin- ciple applies to chattel interests ; nor are cases wanting on this head. In the case of Briers (or Breers) and Boulton (?/), (which, like most of the cases in the same reporter, it is scarcely possible to comprehend), it seems to have been holden at law, that under a power to grant an annuity till 200 /. 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 lives or twenty-one years, a lease for less is good, which is a clear point. And in the case of Harris v. Bessie (2), a power was given to devise 300 Z. generally ; and the donee disposed of 200 1, by fifties, and it was of course 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 given number, a lease may of course be made for an}^ term within the limit. 33. In Winter v. Loveday, a question arose upon a complicated power, whether it authorized a lease for a term absolute, or dependant upon lives (a). The power was to lease, " if in possession for one, two, 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, or for any other number or term of years, determinable on one or two lives." Mr. Justice Rokeby held, that a term could only be granted determinable (//) 3 Keb. GO'2, 74-5. and see Roe v. Prideaux, 10 East, (2) ) Keb. 3 17. ] js. (a) I Coin. 37 j and other books : MUST DEPEND UPON LIVES. 521 determinable upon lives ; but Lord Chief Justice Holt, 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 either for one or two lives, or for thirty years, or for any number of years, 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 were to be made, what 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 years, 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 absolutely. 34. In the case of Lutwich and Piggott (b), 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, > K b) 3 Mod. 268. 522 WHAT ESTATE .MIST BE APPOINTED lives, or as tenant in tail in possession might do. It \\;is insisted that a lease for twenty-one years only 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 lives. 35. A general power to a tenant for life to grant a term or estate, without specifying the duration of it, will enable him to grant a term beyond his own life, although 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(i). 36. A power to grant an interest in possession, of course will not authorize a grant in reversion. What amounts to a reversionary grant is a question which generally arises on leases, and we may therefore reserve the consideration of it for the chapter on leases (c). But we may here observe, that although a reversionary in- terest be granted where the power authorizes a grant in possession only, yet equity will in some cases supply the defective execution of the power, where there is a meri- torious consideration in the appointee {d) (I). 37. Where a power is given to appoint a fund (whe- ther 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 particular event, for example, his death under twenty-one without issue. 38. This tb) Hele v. Green, 2 Ro. Abr. (c) Ch. 17, s. 3. 261, pi. 10. (d) Anon. 2 Freem. 224-. (I) The power, although to lease, was probably for a provision for younger children. It is not stated that any rent was required to be reserved. TO AN ONLY SURVIVING OBJECT. &2$ 38. This was decided in the case of Doe v. Denny (p): i) oe ,,. There, under a marriage settlement, the estate was enny ' limited to the use of such child or children of the mar- riage, 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 the use of the children in fee ; and in default 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 issue (I), 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 showing that the general power given to the wife never arose (f)-> they held that the son took an estate in fee under the devise to him, or an estate in fee under the marriage settlement ; and in one report it is said that the wife could not alter the estate of the son. 39. In the later case of Roe v. Dunt(^r), a copyhold j* oe t "- estate was surrendered to the child or children of the marriage, in such proportion and proportions, and for such estate and 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 hus- band, 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 ; and the whole Court of C. B. were clearly (e) Say. 205, reported ; 2 (/*) Vide supra, p. 351. Wils. 337, cited. (g) 2 Wils. 336. (I) These words, which are very important, are not noticed in Sayef's report. o24 WHAT ESTATE MUST HE APPOINTED clearly of opinion that the 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 preceding case of Roe 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 twenty-one, and left issue, that issue would have been disinherited. 40. It is observable that neither of the foregoing cases is an authority, that where the power authorizes not merely a distribution as to shares, but also an appoint- ment of the quantity of estate or interest in the land to be acquired by the objects of the power, the donee cannot limit a less estate than a fee to the sole object of the power, so as that an absolute and not a defeasible estate be limited. On the contrary, Lord Chief Justice Wilmot expressed his opinion, that a single child might in such case be made tenant in tail, and by a parity of reason the child might be made tenant for life, although a limitation for life would be nugatory where the object takes an estate of inheritance in default of appointment, because the estate for life limited to him under the power would merge in the estate of inheritance. But Mr. Serjeant Wilson, the reporter, adds a quaere to the opinion of the Lord Chief Justice in Roe and Dunt, on the question under consideration. He does not, how- ever, advance any argument against the opinion, nor, perhaps, would it be easy to frame one. Where the power, as in that case, authorizes an appointment to the child or children of the marriage, for such estate and estates as the donee shall limit, the words of the instru- ment cannot be satisfied without giving the donee a TO AN ONLY SURVIVING OBJECT. 525 power to limit the quantity of estate to be taken by a single child, 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 appointment of the estate to them in tail, with cross-remainders between them in tail, would be good ; then take it that one dies in the life-time of the donee of the power without issue, so that the survivor becomes the only object of the power, can it be seriously argued that the appointment would in that event become void, and that he would take the fee under the limitation in default of appointment ; and if this appointment be good, does it not follow, on the same principle, that an ap- pointment to a single and the only object of such a power in tail is equally valid ? In truth, in both of the above cases, the appointment appears to have been made with a view to defeat the limitation in the deed to the object of the power in default of appointment, and to increase the interest of the person executing the power at the expense of the object of the power. 41. In Bray v. Hammersley (h), where the trust was for all and every the child and children, in such shares and proportions, and to be paid at such age or ages, time or times, and with such benefit of survivorship or otherwise, or subject to, with and under such conditions, restrictions and limitations over, as the parent should appoint, with a limitation, in default of appointment, in trust for the children equally, and if but one child, for that one child, to be paid to sons at twenty-one, and to daughters at twenty-one or marriage — there being an only child, a daughter, an appointment giving her a general power of appointment, with a trust, in de- fault of appointment for her separate use for life, and after (A) 3 Sim. 513. ; -,2G WHERE A POWER OF DIVISION [S LOST. after her decease, for her executors or administrators, as part of her personal estate, was held valid, and it was distinguished from the case of Campbell v. Sandys re- ferred to below, upon the ground that the words were more extensive, and that an only child was as much comprehended under the words of the power as if there had been more children than one, except for the pur- pose of distribution, and that the power was capable of being- exercised as to the time, and as to the conditions, restrictions and limitations. 42. But where the power simply authorizes an ap- pointment of the shares to be taken by the objects, the power necessarily ceases when there is only one object, for he of course must take the whole. Thus where by marriage articles leaseholds for lives were agreed to be 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 never arose at all, there having been only one child capable of taking under the settlement, and the instru- ment, he added, was to be considered as if the power had not been inserted (i). 43. 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, that if the object can only take the estate by an execution of the power, it may be appointed to him. And (i) Campbell v. Sandys, 1 Scho. the power only extended to the & Lef. 28 1 ; and see Folkes v. case of several objects. Western, !> Ves. jun. 1 3(3, where APPOINTMENT TO AN ONLY OBJECT. oil And even if he take a share of the estate in default of appointment, yet the entirety may be appointed to him. This was decided by Lord Thurlow, in a case where a Boyi* ''• , ^ Bishop ot power was given to appoint personalty amongst children, 1,eter - and in default of appointment, the fund was given to the children equally, to be vested at twenty-one, although they died in the life-time of the donee of the power. There were two children, one of whom attained twenty- one, and then died, and 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 before 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. But this clause made it proper for the donee to express that she did intend the power to be executed. If there was no appointment, the conse- quence 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 (A"). 44. And in Houstoun v. Houstoun (/), property was given by will to trustees for the testator's son for life, and if she should survive him, then for the son's wife for life, and after his son's decease, but subject to his wife's life interest in case she should survive him, to transfer the funds unto and betw r een the said wife of his son, (k) Boyle v. Bishop of Peter- itself. Butcher v. Butcher, 1 Ves. borough, 1 Ves. jun. 299. See & Bea. 79; M'Ghie v. M'Ghie, Vanet'. Lord Dungannon, 2 Scho. 2 Madd. 368 ; infra. & Lef 118, a case standing by (7) 4 Sim. 011. 528 WHERE AX APPOINTMENT TO A son, if she should be then living, and any child or children he might have, in such shares, &c. as he should appoint by will, and in default of appointment, to the children equally, or if none, for the son's next of kin. The son appointed a large sum to his wife, and died in her life-time without ever having had a child ; it was contended that the appointment was bad for want of a surviving child, but the Vice-Chancellor supported it : He said he was of opinion that the principle of the case of Boyle v. the Bishop of Peterborough, was directly applicable ; because the testator had given the fund to the son for life, then to the wife for life, and then, after the decease of the son, subject to the life-interest of the wife, upon trust, that the trustees should transfer the fund unto, between and amongst the wife of his son, if she should be then living, and any child or children that he might have, in such manner as he should ap- point ; and then the testator proceeds to declare what shall take place in default of such appointment : and his opinion was, that all the passages of the will which follow, were governed by the words, " in default of such direction," &c. The facts were, that the wife survived her husband, but there was no child. In the case of Boyle v. the Bishop of Peterborough, Mrs. Walsingham had two children, a son and a daughter ; and she first appointed a portion of the fund to her son, who after- wards died ; and then she appointed the residue of the fund to her daughter : and then it was said that the daughter could not take by virtue of the execution of the power. Now Lord Thurlow admits that the power, as a power of distribution, had ceased ; and then he says, " but this clause," that is, the clause disposing of the fund in default of appointment, " made it proper for her to express that she did intend her power to be executed ; if there was no appointment, the consequence is, each s would SURVIVING OBJECT IS GOOD. 529 would be entitled to a moiety, because there was no ap- pointment. In respect of that clause, she had a power to appoint to one only ; for, though that is not a distri- bution, it is an expression that it shall go by appoint- ment, and not transmit for the want of it." The Vice- Chancellor thought that that case, which was approved of and followed by Lord Eldon, was not distinguishable in substance from the present case, because the wife was as much intended to take through the exercise of the power as the children were ; and it would be strangely inconsistent to say that there must be children in order to enable the wife to take, but that, if there had been children and no wife, the power might have been exer- cised with respect to the children : he thought that the right of executing the power must be considered as a right as much in favour of one as of the other. What he had said was not in the least inconsistent with the decisions in Wilson's reports. In each of those cases there was a child who was an object of the power ; and consequently the power to appoint in default of children never arose. That was all that the Court had to de- cide ; and that was the point the Court did decide, although the Chief Justice seemed to consider that there might have been an appointment in tail to the child : it was, however, quite enough for the Court to say that there was no question at all with respect to the power in default of children, as the fact was, in each case, that there was a child in existence, which prevented there- fore any exercise whatever of the power of appointment over. He thought, therefore, that the case was con- cluded by what had been decided, by Lord Thurlow, in the case of Boyle v. the Bishop of Peterborough, and which had been approved of and followed by Lord Eldon ; and accordingly he declared that the wife was entitled to the legacy. m m 45. In 530 WHERE A POWER LAPSES K.ade u. 45. In Reade v. Reade (/), an estate was devised to the testator's wife, and after her death he gave the same to his brother-in-law, A, upon trust, that he, his heirs or assigns, should sell, give, devise, or otherwise dispose of the premises unto and amongst his, A's, four children by his late wife, viz. George, William, Barbara and Jane, in such manner, and by such shares, and under such directions, as A should by deed or will appoint. And after his wife's death and certain payments made, he directed A to pay the residue of the rents unto the said four children by half-yearly payments, in and by such dividends, shares and proportions as A should think fit to limit and appoint, and in like manner as he had before directed the disposition of the estate. George died in the testator's lifetime, leaving a son, George. After the testator's death, A, reciting the power and George's death, appointed by deed three-fourths of the estate to the three surviving children, as tenants in com- mon in fee. George s son was the testator s heir-at-law, and also heir-at-law of A his grandfather, and he left a son who recovered the one-fourth at law, upon the strength of his legal title, his great-grandfather, A, having died intestate as to that one-fourth (m). Upon the first hearing, Lord Rosslyn thought that the interest of the objects of the power in cases of this nature was vested, subject to be divested. There was, he said, a material difference between land and money. As to money, any part that falls, of course falls into the resi- due. Then, where the sum is separated from the bulk of the personal estate, it would be a forced construction to throw that back into the general residue. But as to land, there must be an estate given ; the intention to give is not sufficient. In Marryat v. Townly, 1 Ves. 102, the (I) 5 Ves. jun. 744. (m) 8 Term Rep. 1 18. BY THE DEATH OF ONE OF THE OBJECTS. 531 the express joint-tenancy was controlled. Lord Hard- wicke held it was all blunder : it was impossible it could mean a joint-tenancy, as the conveyance was to be at the respective ages of twenty-one, and there was an evident intention of division. Lord Rosslyn added, that he had not fully made up his mind upon the case, but he was inclined to think A was well advised at the time he made the deed of appointment. After the lapse of half a year he gave judgment, and was of opinion that the execution of the power was good under the circumstance that had taken place of the death of the eldest son, who in the will was one of the four objects of appointment, and who died in the lifetime of his father [and of the testator] before any appointment. Under those circum- stances he conceived the father well and properly exe- cuted his power, by appointing only three-fourths to his three surviving children. He did not find that the Court of King's Bench had determined the precise ques- tion. He rather thought that was the opinion of the Court, though they would not put it so, and would not go further than the legal title. This is not very distinct, but Lord Rosslyn's opinion appears to have been: 1. That the four children took vested interests as tenants in common in fee, subject to be divested by an execution of the power (n) ; 2. That by the death of one of the children in the testator's life- time, the power was gone as to one-fourth, and the re- maining three-fourths only could be appointed to the three surviving children ; 3. That the heir-at-law of the testator was entitled in that character, in equity as well as at law, to the one-fourth unappointed. That one- fourth, of course, did not pass in equity by the will to the (n) See Casterton v. Sutherland, 9 Yes. jun. 11;. M M 2 532 WHERE A POWER LAPSES the objects in default of appointment, but lapsed by the death of the equitable devisee in the testator's lifetime. If, however, the power had remained capable of being exercised over the entirety of the estate in favour of the three, the appointment which was made of the three- fourths could not have been confined to the shares actu- ally vested in the three surviving- children, but must have been three-fourths generally of the estate, and con- sequently would have operated over the one-fourth which lapsed, equally with the three-fourths which did not — In this view, as the shares of the latter three-fourths not appointed, vested in the three surviving children as tenants in common in fee, the heir-at-law of the testator, viz. the great-grandson, took only one-sixteenth by the lapse. Lord Rosslyn gave him one-fourth, and therefore decided that the power did not remain as to the one-fourth which lapsed — that at least is the operation of the judgment, whatever was the view he actually took of the case. Church v. Edwards (0), where the shares in the estate of which the parties were seised in tail, and of the reversion in fee, were not distinguished, cannot apply to the case under discussion. For it is the ordinary rule that the ap- pointee of a share takes under the gift in default of appointment, his share of what remains unappointed, precisely as if no appointmeut had been made to him. If there were two children who in default of appoint- ment took the fund equally, and an appointment were made to one of a moiety, it is perfectly settled that the appointee would take an equal portion of the moiety un- appointed, with the other child, that is, it would be divided between them. The only distinction between the cases is, that if in Reade v. Reade the power existed, it (0) 2 Bro. C. C. 1 80. BY THE DEATH OF ONE OF THE OBJECTS. 533 it was larger than the implied gift in default of appoint- ment — the power rode over the entirety ; the gift in default of appointment, in consequence of the lapse ex- tended to only three-fourths — but that is a reason more strongly in favour of the appointee under the power, because as to a share of the estate, it could be taken only under an exercise of the power. If therefore the power did continue in force, Lord Rosslyn's decision cannot be supported : but as the share by the lapse descended upon the testator's death to his heir-at-law, the decision appears to be a sound one, for the effect of the lapse in such a case may properly be held to defeat the devise, both power and interest, over the share which the de- ceased object was to take in default of appointment. The case would have been more difficult if there had been no gift — express or implied — in default of appointment ; for then the surviving objects for the time being could have taken only under an exercise of the power, and no estate would have lapsed by the death of any in the testator's lifetime. In such a case, nice as the distinc- tion may seem, the power might well be held to remain capable of being exercised over the entirety, in favour of the surviving objects. In the former editions of this work the author did not state the facts or judgment in Reade v. Reade, or give any opinion of his own upon the point, but extracted from it, not without some labour, the following rule or principle, viz. : Where a power is given by will to appoint an estate amongst several objects, and the estate in default of ap- pointment is given to them as tenants in common, the death of any of the objects in the life of the testator will, pro tanto, defeat the power and devise over, so that the power and devise will only remain as to the shares of m m 3 the 534 WHERE A POWER LAPSES the survivors (jo) (I). 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 (y), it should seem, that where the estate in default of appointment is given to the objects of the power in joint-tenancy, as the survivors would take the whole in default of appointment, the power it- self ought still to ride over the entirety, and not be con- fined to the shares of the surviving objects. And to this portion of text was added the note which is retained in this edition. He sees no reason whatever to amend his text ; bnt he has investigated the point fully, because it is one of considerable importance, and the law, as before stated, has been questioned (r). It is said that the point was decided by Boyle and the Bishop of Peterborough ; for if the decease of an object, whose share has vested, does not take that share out of the operation of the power, it seems to follow pari ratione that the de- cease of an object, the gift of whose share by that event lapses, does not pro tanto defeat it. It is impossible to find any solid principle of distinction between the cases. The case of Reade v. Reade, it is added, (and which, it is observed, I admitted not to be very intelligible), is much too blind a case to be relied upon as establishing a doctrine so entirely new, and discrepant to the princi- ples of analogous cases. The admission of the claim of the (/)) Reade r. Reade, 5 Ves. jun. and see 1 Salk. 238 ; Doe v. Un- 744-; Casterton v. Sutherland, 9 derwood, Willes, 293; Peat v. Ves. jun. 445. Chapman, 1 Ves. 542. (q) Davies v. Kempe, Cart. 2; (r) 2 Jarm. Pow. 374. (I) 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. 118. The decree does not advert to the grounds of the decision. The defendant claimed as the survivor of the four children. Reg. Lib. B. J 800, fo. 708. Sec 1 Ves. and Bea. 92. BY THE DEATH OF ONE OF THE Or>JECTS. 535 the heir-at-law of the object who had died in the life- time of the testator, unless he was the heir-at-law of the testator (in which case the reference to the other charac- ter was absurd), is quite unaccountable. It will be seen that the heir-at-law of the object of the power who had died, was the heir-at-law of the testator when he died, and there was no reference to any other character. The question simply is, what did Lord Rosslyn decide ? and that I have endeavoured to show. The distinction, however, between the case before him, and Boyle and the Bishop of Peterborough, appears to be an obvious one. Where the objects are once living, and the power may be exercised in their favour, it operates as it was intended, and subsequent events will not defeat it, although they will vary its application ; but where the power as to an object never arose, and the share of the estate itself, which that object, if living, would have taken in default of appointment, lapses, it is reasonable that the power over that share should also lapse, if I may be allowed the expression. Boyle v. Bishop of Peter- borough should not now be disturbed ; but it is not necessary to extend the principle to other cases. In the argument of Butcher v. Butcher, it was ob- served that in Reade v. Reade, which contradicts Boyle v. The Bishop of Peterborough, Lord Loughborough must have proceeded on the notion that each child was to have a share ; that the father executing the power, sup- posing each of the four children entitled to a fourth, in- tended to give what each would have taken if the power had not been executed (s). Lord Eldon, in delivering judgment, alluded to the practice of allowing shares to remain unappointed, so as to give something to a de- ceased child. He said that Lord Thurlow dissented from that (s) 1 Yes. & Bea. 89. M M 4 .;>:<(, WHERE A POWER LAPSES. that which he understood to have been the previous notion of conveyancers, and established the rule in Boyle and the Bishop of Peterborough ; and Lord Lough- borough also appears in Reade v. Reade to have dis- turbed that doctrine, giving the fourth which, according to the old course, would have been divided among the four, to the representatives of the deceased child. He added, that he did not perfectly understand this case, which was quite novel in this respect ; but if the doctrine re- sulting from it is not agreeable to what was previously understood to be the law as to the fund unappointed, as to the appointed shares it follows Boyle and the Bishop of Peterborough, which it is better to abide by (t). There appears to be a misapprehension in this passage, which will be observed upon in another place (u). The observation in the argument upon the pointd ecided by Reade v. Reade is not correct, nor can Lord Eldon's ob- servations be supported. Lord Rosslyn did not give the fourth which, according to the old course, would have been divided amongst the four, to the representatives of the deceased child : because, according to no rule could the fourth have been divided amongst the four, except under an appointment, and none was made ; nor was the fourth given to the representatives of the deceased child in that character ; but the share having lapsed, was held not to have been affected by the appointment of the three -fourths, and it was decided that the appointment was properly confined to the three-fourths. Reade v. Reade did not, it is apprehended, follow as to the appointed shares Boyle and the Bishop of Peterborough ; for in the latter case the power, notwithstanding the death of an object of the power, was held to remain over the whole fund in favour of the surviving objects, whilst in (0 1 Ves. & Bea. 92, 93. (a) Vide infra, ch. 12. WHAT ACTS POWERS AUTHORIZE. in Reade v. Reade, the death of an object in the testator s lifetime appears to have taken the share altogether out of the will. 537 SECTION III. WHAT ACTS POWERS AUTHORIZE. 1. 3. Powers of partition, sale and exchange, authorize what acts. Power may be exercised over fund directed to be con- verted. Power to sell and raise a sum, authorizes a mortgage. 4. Power to raise a sum autho- rizes a sale. 6. Power to sell or mortgage, ex- hausted by a mortgage. 8. Mixed fund, may be given separately amongst objects. 9. Power to charge a sum in- cludes interest. 13. Power confined to part of the estate must be so exe- cuted. 1 4. But power to charge an estate may be exercised over any portion. 15. Jenkins v. Keymis. How power to charge may be exe- cuted. 16. Power to raise and borrow, executed by a grant of a rent-charge. 17. General power to raise any sum authorizes a lease for lives for ever at a fine. J 8. Talbot v. Tipper. Limited power enlarged by construction. 21. Power to devise any part ex- tends to the whole. 23. Power to charge reasonable portions. 24. Observations on the cases. 26. General power restrained by construction to children. We may now consider what acts powers authorize. It is a little difficult to distinguish some of the cases on this head from those in the preceding section, of which this may be considered a continuation. 1. A power to make partition of an estate will not authorize a sale or an exchange of it. A power of sale simply does not authorize a partition, whatever a power of exchange may do ; but it is not perhaps clear that a power 538 EXTENT OF A POWER OF SALE. power to exchange will authorize a partition, although, as we shall hereafter see, under a power of sale a parti- tion or an exchange may be indirectly effected. But the general consideration of powers of sale and ex- change, and partition, is reserved for a separate chap- ter (a). 2. In equity, a power to appoint an estate, directed to be bought with the money to arise by sale of another estate directed to be sold, may be exercised over the estate directed to be sold in the same manner as it might be over the estate directed to be purchased (b). 3. A power to sell and raise a sum of money implies, it seems, a power to mortgage, which is a conditional sale (c), although this cannot be treated as a general rule : for the intention of the parties, and the nature of the case, may render it apparent that a sale out and out only, and not a mortgage, is within the authority. 4. A power generally " to raise a sum" out of an estate, enables a sale of it (d) : so a proviso, that if one fund should be insufficient to pay his debts, his executors should raise the same out of his copyhold premises, authorizes a sale, although they are given by a prior part of the will to his family (ej ; and however obscurely in a will the intention may be expressed, yet if it appear that a power of sale was intended, a sale will be supported (/"). 5. Where an estate is declared to be chargeable with the (a) Infra, ch. 18. 446, 447, has been questioned. (b) Bullock v. Fladgate, 1 Ves. (c) Mills v. Banks, 3 P. Wms. 9. & Bea. 47 1 . See and consider (d) Wareham v. Brown, 2 Vern. Pearson v. Lane, 17 Ves. jun. 153. 101 ; and observe that the rents (e) Bateman v. Bateman. 1 and profits until sale were di- Atk. 421. rected to be laid out with the {/) Warneford v. Thompson, principal. Lord Hardwicke's doc- 3 Ves. jun. b 13. trine in Traflbrd v. Bochm ; 3 Atk. WHERE SALE AND MORTGAGE ARE AUTHORIZED. 539 the raising a sum in such manner as a party shall appoint, he may direct' it to be raised by sale or mortgage (//), and a charge generally or direction to pay out of rents and profits will authorize a Court of Equity to direct a sale (h). 6. 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 mortgage in order to pay it off, the inten- tion should be clearly expressed, as it is doubtful whether, if a mortgage be first made, the power is not wholly ex- hausted, 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 authorizes a sale, for he is no object of the power, further than as that power enabled the donee to make him a good mortgage. When he has that, he is in the ordinary situation of a mortgagee. He has all the remedies, but only the remedies, of a mort- gagee (i). 7. Where a power of charging is given by an instru ment in which different funds are comprised, and the power is not expressly confined to one fund in parti- cular, the question, whether the power embraces both funds, or only one of them, must of course depend upon the construction of the whole instrument, and it is obviously impossible to lay down any general rule on the subject (k). 8. If a fund, consisting partly of real estate and partly of personal estate, be authorized as a common fund to be appointed (g) Green v. Belcher, 1 Atk. jun. 48 ; but as to the principal 505. question, see Omerod v. Hard- (k) S. C. Sheldon v. Dormer, man, 5 Ves.jun. 722. 2 Vern. 3 1 0. (k) See Doe v. Milborne, 2 (i) Palk v. Clinton, 12 Ves. Term Rep. 721. 540 INTENT OF A POWER TO CHARGE. appointed amongst several objects, so that each must have a share, yet it is not necessary to give a part of each fund to each object ; but if there are two, for in- stance, all the realty may be given to one, and all the personalty to the other (in). 9. 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 (n). 10. But where a man, having a power to charge an estate with 2,000 I. after the death of his wife, gave 1,000/. to his wife, payable with interest from three months after his death, Lord Hardwicke held, that the gift of this 1,000 1, was an execution of the power, although there was a mistake as to the time it would be raised. Then it was insisted, that as the widow had 1,000/. left her, with interest [and the principal could not be paid at the time intended], the interest should be made good till it amounted to 2,000 I. which he had power to raise. But Lord Hardwicke determined that the interest should not be made good out of the power, for that was to charge the estate with a principal sum of 2,000 1 (o). 11. In the case of Westby v. Kiernan (p), a man having a power to charge estates with a sum of 10,000 /. executed (m) Morgan v. Surman, 1 Freke, 2 Ves. jun. 507 ; Sitwell Taunt. 289. v. Barnard, 6 Ves. jun. 520; Roe («) Lord Kilmurry v. Geery, v. Pogson, 2 Madd. 457. 2 Salk. 538; Evelyn v. Evelyn, (o) Probert v. Clifford, 1 Atk. 2 P. Wms. 659 ; Boycot ». Cot- 440 ; and see Marnell v. Blake, ton, ] Atk. 552 ; Hall v. Carter, 4 Dow, 248. 2 Atk. 358; Sergison v. Sealy, (/?) Ambl. 697. 9 Mod. 390 ; and see Lewis v. POWER CONFINED TO PART OF THE LAND. 541 executed his power by deed, and directed the trustees, to whom he appointed the money, to lay it out at in- terest, and pay " the interest, dividends, and proceeds," to such persons as he had or should appoint by will, and for want of appointment, to pay the same interest, &c. to his sister for life, and after her death, to pay the 10,000/. and the interest thereof, to her children. By his will, made after the deed, he disposed of the principal, and took notice that such was his intention at the time of exe- cuting the deed. Lord Bathurst held clearly that the power over the principal was reserved. 12. A power to trustees of a public turnpike-act, which authorized them to mortgage the tolls, but declared that there should be no priority amongst the creditors, does not authorize a mortgage of the toll-houses or the turn- pike gates, because if any creditor had a power to enter and take possession of the toll-gates, he would gain a priority which the act has denied (q). 13. A power to grant a rent-charge on any part of the estate of a particular value will not, even in equity, authorize a charge of the rent on the entire estate, because in such cases the intent is that the whole estate shall not be encumbered (r) ; so a power to settle part of the land of a given value, will not authorize a grant of a rent-charge of the same value on the whole estate, but equity, where there is a proper consi- deration, will of course relieve against the defective execution. 14. But a power to charge a given sum upon an estate will authorize the charge to be made upon any portion of it 0). 15. At (q) Fairtitle v. Gilbert, 2 Term of Ancaster, 2 Ves. 500. Rep. 169. (s) Blake v. Marnell, 2 Ball & (r) Hervey v. Hervey, 1 Atk. Beat. 33 ; 4- Dow, 248. 561 ; Earl of Tyrconnel v. Duke 54 2 EXECUTION OF A POWER 15. At law a particular power of charging lands will not authorize a limitation of the fee, as a security for the sum to be raised. Thus in Jenkins v. Keymis (£), a tenant for life under a settlement having a power to charge the land with 2,000 /., 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 I. was received, or by a deed charging the land with the sum ; 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 intention appeared to execute the power, equity would consider such an execution as that in Jenkins v. Keymis a sub- stantial, although defective execution, and would relieve against the defect in favour of the mortgagee. Indeed a mere charge would bind the whole inheritance, and equity would, if necessary, decree a sale of the inherit- ance in order to raise the charge. 16. In a recent case there was a power to a tenant for life under a settlement, made upon his marriage by his father, " to raise or borrow any sum or sums of money not exceeding 1,500/., and that without the consent of the trustees." And in the settlement was a covenant that none of the tenants for life should sell or mortgage the settled estates during their lives. The power, it was held, (0 1 Lev. 150; Hard. 395; 1 Cha. Ca. 103; Blake v. Marnell, 2 Ball & Beatty, 35. TO CHARGE. 54 3 held, authorized the grant of a rent-charge out of part of the estate until a principal sum of 744 /. and interest should be thereby fully paid (u) ; but the House of Lords, in affirming the decree, particularly stated that this was not to be considered a general rule. The settlement provided that the tenant for life should not sell or mortgage during his life. The sum secured did not of course exceed the amount authorized by the power. The power was an equitable one, and therefore it was not necessary to decide whether the power, if a legal one, would have been well executed at law. Lord Redesdale, before whom the case came first by demurrer, said, there was no doubt that if the donee had conveyed the estate, subject to redemption on payment of the sum secured, though the settlement gave him no power to convey in fee, or create a term, yet it would be held a good charge on the estate. Instead of this, he had granted a rent-charge till the debt should be paid ; and he thought that by this instrument he had declared that this debt should be secured out of the inheritance, and he overruled the demurrer, as the plaintiff might be entitled to a decree. Lord Manners, at the hearing, established the charge. He was of opinion that it was a valid charge, affecting the estate in the hands of the remainder-man, and which the Court, in favour of a creditor, would modify according to the intent of the power ; and he, under the circumstances, treated the power as an equitable one (x). When the case was in the House of Lords, Lord Eldon treated the power as an equitable one, and he said the question was, whether the party having a power to charge the estates with a sum (w) Blake v. Marnell, 2 Ball & Sugden, 185. Beatty, 35 ; 4 Dow, 248. S. C. (x) See 4 Dow, 251, 252, 25S, Muskerry v. Chinnery, Rep. temp. 202. 5-11 EXECUTION OK A POWER TO CHARGE. sum of 1,500 /., which would make him liable to pay the interest, the person entitled to the inheritance having to pay the principal — whether, if this 1,500 /. was not charged on all the estates by way of mortgage or sale, but an annuity granted of 150 I. charged on part only of the estates until a sum of 744 /. should be paid off, that could be taken as a good execution of the power ; and whether, the party having a power to raise a sum of 1,500/. by mortgage or sale out of the whole estate, that is, having power to do one thing, and having in fact done another, it is to be held that he meant to do that which he had power to do. Lord Redesdale was of opinion that this was an informal execution of the power. The deed was defective in the manner of raising the money ; but though the mode was not that intended by the settlement, yet a Court of Equity would make it a charge according to the mode intended by the settle- ment. Lord Eldon then observed, that it must not be understood that they meant to hold, that where tenant for life has a power to charge lands for any given sum, the grant of an annuity out of those lands is in all cases to be taken as a good execution of the power. Looking at the settlement as an equitable contract, it gave a power in some icay or other to charge these lands with a sum of 1,500 I. In what way it was very difficult to say, unless you reject the proviso that he should not sell or mortgage ; and it is not impossible that he might have resorted to the mode of execution by annuity, on account of the clause in the deed forbidding him to sell or mort- gage. Lord Redesdale then observed, that the case was totally different from the generality of other cases, for there was no provision how to execute the power. It is merely that he shall have a power to charge to that amount, and the meaning of the proviso, that he should not mortoao-e or sell, must be that he should not mort- EXECUTION OF AN UNLIMITED POWER. 545 gage or sell so as to defeat the provisions of the settle- ment, otherwise it would be absurd to say that he should have such a power, and yet should not mortgage or sell. The opinion, therefore, appears to have been that the power authorized a mortgage or sale. As such a power would be a good legal one, of course it must receive a construction, and a general power to charge a sum upon the estate, would no doubt, at law, at least authorize a mortgage for securing it. 17. In Ward v. Hartpole ( ?/) a general power, with wardt. (. , n -..(> . Hartpole. consent 01 trustees, to the tenant tor hie to raise any sum of money he should think fit, was held to be well exercised by a lease for lives, renewable for ever, granted for a fine at an annual rent, although the settlement also contained a power of leasing for lives at the best rent, without fine. The trustees had, previously to the lease, consented that the tenant for life might raise 5,000/. by mortgage or otherwise, as he should think fit. Lord Mansfield, in delivering the judgment of the House of Lords, observed, that powers, especially those in family settlements, being considered as reservations of so much of the absolute dominion of the estate, were to be construed equitably, and most favourably for the grantee ; and therefore, where through mistake or inad- vertency the several circumstances required by a power are not strictly and formally complied with, equity will interpose and supply the defect. The power, indeed, cannot be exceeded ; but within the extent and compass of it, a court of equity will aid all defects of circum- stances, and even where powers have been exceeded, the execution is not absolutely void ; for the Court will cor- rect {ij) 3 Bligh, 470. N N .,lii EXECUTION OF UNLIMITED rect the excess, and supply the execution as far as the power warrants. In this case lie said it was certain that the lease was not within, because not made according to the power of leasing ; but upon the true construction of the power to raise money, and the consent of the trus- tees, and considering the known and long-established usage in Ireland, he thought that this mode of fining -down might be one way of raising the money. The articles reserve a power to make leases for any term of years, or for one, two, or three lives certain, or renewable for ever. The power to raise money enabled the tenant for life to raise any sum, for such uses as he should think fit, with the trus- tees' consent ; the trustees give their consent, and autho- rize him to raise 5,000 /. by mortgage or otherwise, as he should think fit. Now, he was of opinion, that by the terms of this power and the trustees' consent, he was clearly warranted to raise it by fines. The power was very remarkable and very uncommon : he was enabled to raise any sum of money for such uses and purposes as he should think fit, with the trustees' consent. There was no sum mentioned ; no particular mode prescribed for raising it ; no restriction whatever as to the execu- tion of the power, but that it should be with the trustees' consent. Now this power operates as an exception, and so far as respects the execution of it, the power of leasing does not extend [to it] or interfere [with it]. When the power for raising money is satisfied, then indeed all leases afterwards made must be in conformity to the terms of the power of leasing, but those made in the execution of the power of raising money cannot be affected by it. The trustees tie the tenant for life down to no particular mode, but leave it to his discretion to raise it by mortgage, or in any other manner as he should judge proper: fining-down the rents was one of those other ways ; selling was another ; there was no way of raising s money POWERS OF LEASING, &C. 54*7 money but by mortgaging, fining-down, or selling ; he was left at his option. Great part of the lands he sold ; they were quietly enjoyed, and no question is made as to the validity of those sales ; why then might not money be as well raised by fines ? It could make no difference by what means it was raised, provided the value was given. He was clearly of opinion that it might be raised by fines, and that so far the lease was a good execution of the power under the trustees' consent. 18. In considering the extent of a power, the intention of the parties must be the guide. Therefore, a power limited in terms has, in favour of the intention, been deemed a general power. The case of Talbot v. Tipper (z) is an instance of this Talbot ■■ . Tipper. construction. In a settlement by Sir John Fortescue he reserved a power to make leases, with fine or without fine, and rendering such rents and services as he should think jit. He made a lease without reserving any rent ; and it was objected, that some rent ought to be reserved, and there not being any, his power was not well executed ; but the objection was overruled, because it being to re- serve 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 reserved, payable forty years after, would have been sufficient, and there- fore such matter should not be regarded as a cause suffi- cient 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. And in Long v. Long (a), as we have seen, a power to a father in a marriage settlement to charge the estate with such sum or sums of money for younger children as he (:) Skin. 427. (a) 5 Vc5.jun.44>. Supra,?. 303. N N 2 ,45 EXECUTION OF UNLIMITED he should think fit, was held to leave the father unre- strained in amount, so that he might charge the utmost value of the estate. This is an example of a power allowed to operate according to its tenor, although the nature of the settlement might have led to the conclusion that a limited amount of charge only was intended. 19. In Mansell v. Man sell (6), where the tenant for life, with the consent of trustees, was authorized "to settle a jointure," Wilmot, in delivering his judgment, said, that take away the check, and he might settle the whole estate. 20. And in Muskerry v. Chinnery (c), where the power was to the husband to lease for any term or terms of years or lives, with or without covenants for renewal, and upon the determination of any of the leases to make new or other leases thereof in manner aforesaid, and with or without fines, as he should think fit ; and he also had a power to mortgage, not exceeding 20,000/., and likewise a power to charge or incumber all the estates, or any part thereof, with any sum or sums of money for the younger child or children of the marriage, in such pro- portions and manner, and payable at such time or times as he should by deed or will appoint ; the Lord Chan- cellor and the Lord Chief Baron were of opinion that leases for 999 years, granted for large fines at small rents, were valid, and that the power to charge for younger children was unlimited. They gave full effect to the words of the powers. The L. C. observed, what is the construction of these different powers ? As regards the power of leasing, the case of Talbot v. Tipper bears very powerfully upon this case. There the power was (b) \Vilm. notes, 44, 45; and App. No. 19; for the Lord Chief see Carter v. Carter, Mose. 365. Baron's opinion, infra, ch. 17. (c) Rep, Temp. Sugden, 185; POWERS OP LEASING, k.C. 549 was to make leases, with fine or without fine, and ren- dering such rents and services as the donee of the power should think fit. The settlor declared the uses of the term, to secure the payment of his debts, and afterwards made a lease without reserving rent. It was argued that, by a rational construction of the words, some rent must be reserved, to which the Court made this answer ; " It being to reserve such rent as he should think fit, and he having thought fit to reserve no rent, this shall not avoid the execution of the power ; " for a pepper-corn reserved, payable forty years after, had been sufficient. The power was held to be an unlimited one. He thought courts of law and equity had very often been mispending their time in seeking to introduce qualifica- tions where parties had used general expressions, and not taken the trouble to explain the intention to use them in a restricted sense. If he was to restrain this power at all, would anybody point out how far he was to restrain it ? Where was the limit to be ? The term might be ten thousand years, and the rent a pepper-corn, and where was the line to be drawn as to the amount of the fine ? He saw none. He thought there was no power in a court of equity to cut down this power. There was nothing to guide him, except what appears on the face of the instrument, and therefore he was of opinion that this general leasing power must, both at law and in equity, have its full force and operation. Now as to the next power, to charge for younger chil- dren any sum he should think fit, that also was with- out limit : the settlement gave the father a power to appoint any sum. In the case of Long v. Long the very point was decided. There, under such a power the father thought fit to direct the entire estate to be sold, and he gave nearly the whole of the produce of it to the younger children. It was argued that this never could n n 3 have 550 EXECUTION OF UNLIMITED have been the intention of the parties, because if the father was allowed to dispose of the whole it would de- feat the settlement ; but Lord Rosslyn stopped the coun- sel, and asked, what could be said upon that point? Where was the limit in the case there? If the parties themselves have not limited the amount, was this Court to be called on to do so for them ? How was he, sitting as a Judge in a court of equity, to arrive at any just conclusion as to what the proper limit should be, where the parties themselves have left it at large ? The effect of the two cases to which he had referred was that these powers cannot be restrained. This question was raised in the course of the discussion, whether or not the father had a right to raise the 20,000/., besides the fines, or whether the fines should be taken as a portion of the 20,000 /. He was not called upon to decide that point ; but he was not at all certain that the Court might not consider that there would be no incongruity in holding, that the fines should be taken to be in aid of the power to charge the 20,000/. In the case of Blake v. Marnell, which was first in this Court, and afterwards in the House of Lords, it was decided, that under a power of raising a certain sum of money, you may limit an an- nuity or rent-charge, and the House of Lords, consider- ing it an equitable execution of the power, relieved against the defect. He did not see the difference between raising the charge by mortgage and by such an annuity, which was really only a postponed mortgage securing the payments by annual instalments. Why was it not good at law? No damage can be done provided the amount of the charge be not exceeded. The case of Ward v. Hartpole, which had been so much discussed at the bar, was a very singular case : the power there was to grant leases for any number of years, or for one, two, or three lives certain, or renewable for ever, at the best improved POWERS OF LEASING, &C. 551 improved rent, without fine. There was also another power enabling the tenant for life, with the consent of the trustees, to raise any sum or sums of money. He did grant a lease upon a fine, and therefore that could not have been at the best improved rent, because a fine was received, and it was not considered good under the first power, but was held to be a good execution of the power to raise any sum of money. This case shows the extent to which courts have gone in order to sustain fair trans- actions like these ; and the doctrine of Lord Mansfield in that case agrees with the decisions in Talbot v. Tipper and Long v. Long. The leases in Muskerry v. Chinnery had been held invalid in the Common Pleas in Ireland, upon a case directed to them from the Court of Chancery. Their opinion, it should seem, depended upon a general view that the power meant what it did not express, that the leases should conform to the ordinary rules applied to leases granted by a tenant for life under a power in the settle- ment. This was contrary to the above opinion expressed by the Lord Chancellor, in February 1835, which was supported by the Lord Chief Baron ; and the opinion of the Lord Chief Justice of the Common Pleas, (who had joined in the certificate) ultimately strongly leaned in favour of the validity of the leases, but it was not con- sidered necessary to decide the point. However, upon a rehearing, the present Lord Chancellor of Ireland de- cided the case upon the legal question, and being of opinion that the leases were invalid, reversed the decree of his predecessor, and the case is now in the House of Lords. 21. In a late case in the Common Pleas, upon a devise to a wife for life of the residue of the testator's property, " reserving to her full power to will away any part or proportion of his said residue at her decease," with a N n 4 gift 552 EXECUTION <>i a POWEB TO CHARGE gift over of the residue of what should not be disposed of by his wife, it was held that the wife had a power to dispose of the whole property (d). 22. But in the case of the Earl of Tankerville v. Coke (e), 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 testator designed the estate to remain in the family. Lord Chancellor King, assisted by Lord Chief Justice Raymond and Mr. Baron Comyn, held that the donee had restrained his power by his marriage articles, so that it became un- necessary to decide the point ; but all the three Judges expressed their opinion that the power was under the influence of the Court, and that an unreasonble exe- cution of it would be relieved against. 23. And in Edgeworth v. Edgeworth (/), the power was to charge with reasonable portions or fortunes for younger children. An appointment was made, and Lord Manners referred it to the Master to inquire whether the sum charged was a reasonable portion, or what other sum would be reasonable under the power, with conse- quential directions. Upon a rehearing, Lord Chancellor Hart held that the power was sufficiently certain to be capable of execution. He held that the portion had not become vested ; but he desired it to be understood that he gave no opinion on the question how far the Court was right in referring to the Master's decision whether the sum appointed was reasonable in amount, and if it was (d) Cooke v. Farrand, 2 Marsh. Kinchinbroke v. Seymour, 1 Bro. 421 ; 7 Taunt. 122. C. C. 395 infra ; ch. 14. (0 Mose. 140; and sec Lord (/) I Beat. 328. REASONABLE PORTIONS. 553 was not, could authorize him to substitute his discretion for that which the testator reposed in the donee of the power. His opinion probably was, that the donee of the power was the sole judge of the reasonableness of the amount ; but he controlled the execution of the power, because it was not reasonable as to the time of the vesting'. 24. The author once thought Long v. Long was wrongly decided, but further consideration has induced him to alter his opinion. In such a power there is nothing by which you can restrain or limit the amount. How much of the estate is to be left beyond the charge? How is the value of the estate itself to be ascertained ? It is not a question whether the execution of the power is reasonable or not, but whether it is authorized by the power, and if that is unlimited no Court has a right to restrain it. Great inconvenience would be found to result from an attempt to fix an amount of charge where the settlement in terms gives an unlimited power. There is difficulty enough in a case like Edgeworth v. Edge- worth, where the charge is to be of reasonable portions, and the safest rule, even in such a case, would be to leave the reasonableness of the amount to the discretion of the donee. 25. But where the intent can be collected, a general power in terms may be cut down to a particular pur- pose. 26. An example is furnished by the case of Bristow Bristol. 1 J Warde. v. Warde (^r). There, by marriage articles, funds of each party were agreed to be settled on the husband and wife, and then as the husband should appoint generally, and in default of appointment to the children of the marriage (or) 2 Ves. jun. 336. This case, however, must not be considered as establishing a general rule. 554 A GENERAL POWER RESTRAINED marriage as usual. It was insisted 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 wife 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 appointment, to be equally distributable in the case of an appointment, should be subject to his debts, which would be the ne- cessary 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 creditors 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 natural frame of such a settlement, nor was it the construction of the words of this. It was clear the power of appoint- ment was not indefinite, but was confined to the issue, iviiidmay's 27. And in Mildmay's case, in Coke's first volume (A), the estate was settled, in default of issue male, on the settler's three daughters in tail, with cross remainders. And it was provided that Sir Henry, the settler, might " limit any part of the lands to any person or persons for any life, lives, or years, for the payment of his debts, performing of his legacies, preferment of his servants, or any other reasonable considerations as to him should be thought good." One of the daughters died, whereby the two others became seised of the entirety, and Sir Henry limited a great part of the land to one of the sur- viving 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 this word (other) could not comprehend any consideration expressed (h) P. 175 a case BY THE INTENTION. 555 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 men- tioned 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 proviso, for the intent was to make distribution of his lands amongst his three daughters, and the heirs of tHeir bodies ; but if this limitation should 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 re- served, seemed also to be against the words of the pro- viso, for that cannot be called a reasonable consideration which tends to the subversion of the estates settled by the indenture upon good consideration, against the mean- ing of the parties. 556 rECHNICAL WORDS REQUIRED IN DEED8. SECTION IV. OF THE CONSTRUCTION OF LIMITATIONS IN INSTRUMENTS EXECUTING POWERS. 1 . Technical expressions r&ces- 5. But equally to be divided sari/ in limiting estates by creates a tenancy in cotn- deed under powers. mon. 2. Life estate only where no "words 6. Wills in execution of powers of inheritance. construed as proper -wills. 3. Life estates only under limita- tion to A for life, remain- der to his issue male. 7 A Estates in fee or in tail with" y out proper words of in- 9. J heritance. Limitation for years and li- 11. Where executors take in that mituiion to heirs of the body character, cannot coalesce. 1. A power may be executed by any act inter vivos or by will. In the execution of powers by deed or other act inter vivos, technical expressions are as necessary in the limitation of the estate as in feoffments or gifts at common law. 2. Therefore, if, under a power, the estate be ap- pointed to A, and the deed express or limit no estate, the appointee will take an estate for life only (a). 3. So if the estate be limited to A for life, re- mainder to his issue male, the father would take for life only, and his sons would take as purchasers and joint-tenants for life. 4. Again, a limitation to A for ninety-nine years, and a subsequent limitation to his heirs, or the heirs of his body, cannot coalesce ; nor can a limitation of a legal estate of inheritance under a power coalesce with a pre- vious (a) Sec Co. Litt. 42 a. APPOINTMENT BY WILL, TESTAMENTARY, 557 vious 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 (b). 5. 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 under the Statute of Uses than in feoffments; and he accordingly decided, that the words equally to be divided in a deed, operating under the statute, would create a tenancy in common (c) ; which point was after- wards determined the same way by the Court of King's Bench in the year 1753 (d). However, the student should be cautious how he extends this doctrine. It is difficult to put many cases to which it would apply ; and it does not seem to be well established even in the principal case (e). 6. But a greater latitude is allowed in wills executing powers; for, as we have seen, wills executed under powers must receive the same construction as proper wills. It seems indeed once to have been doubted whether a will made in exercise of a power could be considered as a proper will. In an opinion of Mr. Jus- tice Burnet's, on a case referred to him (f), he seemed clearly of opinion, that a power executed by will must be construed the same as if executed by deed. He said, addressing (6) See Makepeace v. Fletcher, ( 5GG OF L\( l.LSIVL APPOINTMENTS. ing to the cases just dismissed, so an express power in terms to appoint exclusively may be construed to l>c merely a power of distribution, in order to effectuate the clear intention of the parties. Both these points were determined by Lord Hardwicke in the case of Burleigh 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 main- tenance and preferment of such younger children which they should leave unmarried, and unadvanced, or other- wise 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 1,000/. to pay the 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 appointment was authorized. Lord Hardwicke said, that the deed by which this trust was created was certainly very inaccu- rately penned, but a reasonable construction must be made, and that from the intent of the parties, fully declared in the beginning of the deed, which was the leading clause; and therefore other doubtful words, if any, ought to be controlled and construed by that plain declaration of the intent, which was to make a provision for those younger children who should be left unmar- ried, &c. to which description the word such was plainly relative. " And" after unmarried, must be construed "or;" and the negative must run through the whole, otherwise (s) 1 Vcs. 281 ; and see Alexander v. Alexander, 2 Ves. 640. OF EXCLUSIVE APPOINTMENTS. 567 otherwise it was absurd ; for they certainly meant un- provided for ; and then a child, though married, 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 description before the governing clause through the whole, and did not mean a general power to appoint to one or two, for all must have some. The contrary construction would over- turn the intent ; impowering to give the whole to a child even provided for, and to leave the rest unprovided. But the most doubtful part was from the words or some : but it would be strange to construe this deed so as to leave greater power to disinherit in the survivor than was given jointly, especially if the husband survived, as happened when it was the wife's estate. The addition of some, must mean some of those under the qualifica- tions before described, in the same manner as such. Another inaccuracy occurred afterwards in case of no appointment ; for it must not be construed to be divided among all, as well provided for as not, but meant the said younger children, viz. unprovided. And he accord- ingly set aside the execution of the power, because some of the objects were excluded. 10. In the cases hitherto considered, it is clear that the party may appoint to all the objects of the power; and the doubt is, whether he can exclude any, but a power may authorize an appointment to one of man) objects, and not an appointment to all : thus in a case where the estate was given 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. He 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 (t). (/) Brown v. Higgs, 4 Ves. jun. 708 ; sec p. 7 17. 568 "l ILLUSORY APPOINTMENTS. SECTION VI. WHAT IS DEEMED AN ILLUSORY APPOINTMENT. 1 . Act for altering the laiv not retrospective. '2. Distinction between law and equity as to illusory ap- pointments. 3. Proportions, held illusory. 4. Butcher v. Butcher. 6. Result. 7. Share unappointed, if sub- stantial, siifficient. 8. Last appointment only bad. 9. Small share might be justified by circumstances. 1 0. A provision aliunde. 13. If appointment illusory, fund goes equally. 1 5 . The late Act abolishes the rule in equity. 16. A poiver may compel a donee to give a substantial share. 1 . Until the late act of parliament, the provisions of which will be stated at the end of this section, it was necessary, when it was once ascertained that none of the objects of any given power could be excluded from participating in the fund, to inquire what share each must have ; and although the law has rendered that inquiry no longer necessary, in regard to appointments since the Act, yet as the Act was not retrospective, it is still requisite to state the rules on this subject, with reference to appointments made before the Act passed. 2. At law, it was clear that any share, however no- minal or illusory, would satisfy the terms of the power. The gift of a ring (a), or a shilling (b), was a good legal execution of the power, although the fund were 100,000 l.(c) ; whereas, in equity, five shillings (d), ten guineas, (a) See 1 Vera. 67. (c) Morgan r. Surman, 1 Taunt. (b) 1 Term Rep. 438, n. ; and 289. see 4 Ves. jun. 785; 1G Ves. jun. (d ) Gibson v. Kinven, 1 Vern. 26. 66. OF ILLUSORY APPOINTMENTS. 569 guineas (e), or any other sum, merely illusory, with reference to the amount of the fund, and the number of the objects amongst whom it was to be distributed, would have been void. But all the interests given to the child, contingent as well as vested, were taken into consideration (f). We shall have occasion to consider how far this distinction between the legal and equi- table execution of such a power can be defended upon principle (cj). 3. This equity was enforced at a very early period, and was frequently administered (h) ; nor has it been less the subject of discussion in modern times (i). It extended as well to real as to personal estate (&) ; and the only difficulty was to ascertain what proportion should in every particular case be deemed illusory. In Wilson and Piggot, the proportion given to one of four children amounted only to one sixteenth of the whole fund, and Lord Alvanley held it to be good(Z), although it was one fourth less than an equal proportion. In Alexander v. Alexander (in), the proportion given was only a six- tieth (e) Vanderzee v. Aclom, 4 Ves. (i) See Menzey v. Walker, For. jun. 77 1. 72 ; but note, there one child was (f) Bax v. Whitbread, 1 6 Ves. totally excluded ; Maddison v. jun. 15. Andrew, 1 Ves. 57 ; Coleman v. (g) Vide infra, ch. 11, sect. 2. Seymour, ib. 211. (h) See Wall v. Thurborne, (&) Pocklington v. Bayne, 1 Bro. 1 Vera. 335, 414; Cragrave v. C. C. 450. Perrost, cited, ibid. 355. See (/) 2 Ves. jun. 351. In Van- 2 Cha. Ca. 228 ; and see 9 Ves. derzee v. Aclom, 4 Ves. jun. 771, jun. 395. In Civil v. Rich, 1 Cha. t h e amount of the fund is not Ca. 310, Lord Nottingham re- stated ; and see Spencer i>. Spen- ferred to this case, as expressly C er, 5 Ves. jun. 362. confined to the widotvhood of the f n A 2 Ves. (540; but see 9 Ves. mfe; Astry 0, Astry, Prec. Cha. j un . 392, where it is stated from 256. As to Sweetnam v. Wool- t he Register's book that the child aston, cited 1 Vera. 356, see did not claim more. 5 Ves. jun. 858. 570 OF [LLUSOH\ APPOINTMENTS. tieth part of the fund to one of five children, and the point was not raised. In Kemp v. Kemp (w), Lord Alvanley repeated the desire, which he had often ex- pressed, to get out of the rule altogether, and lamented that equity had not followed the rule of law ; but he was compelled, against his inclination, to hold the ap- pointment in that case illusory. The fund amounted to nearly 1,900 /. There were three objects: to one 50/. was given ; to another 10/. and the residue to the other. The first, therefore, had only a thirty-eighth share, and the second only a one hundred and ninetieth share, of the entire fund, when, upon an equal division, each would have been entitled to a third. Lord Alvanley, in delivering judgment, said, that he should hardly have conceived that 50/. could be considered a substantial part; but that the sum of 10/. was evidently meant to be no gift, the party merely supposing himself to be under the necessity of giving something to each. Butcher v. 4. Thus the doctrine stood till the late case of Butcher v. Butcher (0), in which the Master of the Rolls, after delivering a luminous and argumentative judgment, held, that as no case had been found in which a sum of the amount in the case before him had been declared illusory, there was no ground upon which he thought himself justified in determining that this was an invalid appointment. He summed up the difficulties attending this branch of equitable jurisdiction in a few words : " To say, under such a power, an illusory share must not be given, or that a substantial share must be given, is rather to raise a question than establish a rule. What is an illusory share, and what is a substantial share? Is is to be judged of upon a mere statement of (») 5 Vcs. jun. 8l f J. (0) 9 Ves. jun. 382. See 1 Bligh, 479. Butcher. OF ILLUSORY APPOINTMENTS. 571 of the sum given, without reference to the amount of the fortune, which is the subject of the power ? If so, what is the sum that must be given to exclude the interference of the Court ? What is the limit of amount at which it ceases to be illusory, and begins to be sub- stantial ? If it is to be considered with reference to the amount of the fortune, what is the proportion, either of the whole, or of the share, that would belong to each upon an equal division ?" In the case of Butcher and Butcher there were nine persons, and the fund amounted to about 17,000/. To some of the children, 200 I. 3 per-cents only was given ; so that reckoning at that period the stock at even 70 per cent, the share did not exceed a hundred and twenty- second part of the fund. In the next case which came before the Master of the Rolls, the fund was 2,500 I. South Sea annuities, and there were only two objects of the power ; to one 100 I. stock was given, and the resi- due to the other. The first therefore had only a twenty- fifth share ; and the Master of the Rolls, referring to his former decision, held the appointment not illusory (jp). Another case arose shortly afterwards, in which the fund was 2,500 I. There were five (I) objects of the power. To some, the donee of the power gave only a share, which amounted to 33 I. 6 s. 8 d. each, when, upon an equal division, they would have been entitled to 500 I. each. The Master of the Rolls said, that he adhered to the rule he laid down in Butcher v. Butcher, that he would go as far as he was bound by authority, and no farther. Show me, he added, a case in which a specific sum, (p) Bax v. Whitbread, 10 Ves. jun. 31. (I) Although the power extended to the issue of the children, yet it also seems that they, the issue, were considered as standing in the place of their parent, and there were only five children ; sed c/u ;»7-J ol' ILLUSORY APP0INTMENT8. sum, or an equal j)i , oportion of what would be the share of each object of the appointment upon an equal division, lias been held to be illusory, and I will in the same case make the same decision. And after showing that Kemp v. Kemp was an authority only as to the 10 /. and did not turn upon the 50 I. he determined that the appoint- ment was good, as the sum of 33 I. 6 s. 8 d. was not the same specific sum, or the same proportion of the share of each child, upon an equal division, that had been in any former case held to be illusory (rj). 5. In the foregoing case, with reference to the whole fund, the share given was only equal to about a seventy- fifth of it ; and in another case, which occurred a month afterwards, the disproportion was still greater. The fund amounted to about 7,100/. and there were nine objects of the power, seven of whom had only about 71 /. a-piece given to them. The point was given up in argument; and the Master of the Rolls thought that there was nothing in an objection taken that there might be more children ; there was so little probability, under the circumstances, that the shares would ever be reduced below the standard under which he had said he should consider himself bound by the authorities (r). 6. The result of the authorities, then, was rather a ne- gative than an affirmative rule. Lord Alvanley deter- mined, that where a party is, in default of appointment, to take a third share, a gift of a hundred and ninetieth share to him is illusory; and here the Master of the Rolls drew the line ; so that any share which, squared by this rule, would exceed that in amount, was not deemed illusory. But upon an appeal to the Lord Chancellor, in Bax v. Whitbread, for the express pur- pose (q) Moeattar.Lousada, I2Ves. (r) Dyke v. Sylvester, 12 Ves. jun. 123. jun. 126. OF ILLUSORY APPOINTMENTS. pose of restoring the old rule, his Lordship thought that the principle stated in the late cases in effect destroyed all the authorities. The sum of 50 Z. being- given, he said, in one family, and by one will, it is dif- ficult to conceive that the identity of the sum, or the proportion, can afford the ground of determination in another family and upon another will. The motives also must be furnished by the same circumstances, whether good conduct or misconduct : a provision by a parent or a third person : circumstances, if the Court is at liberty to regard them, of utility. The result of the authorities, he added, was, that from the time of Lord Nottingham, the Court has taken upon itself the duty of exercising a discretion in these cases ; and his Lordship seems to have considered himself still bound by those decisions. Upon a later appeal to Lord Eldon, in Butcher v. Butcher, he expressed the same opi- nion (s). The law, therefore, on this head, appears to stand as it did before the case of Butcher and Butcher was decided by the Master of the Rolls ; and yet although Lord Eldon decided, that the Court was bound to inquire whether the share was substantial or not, his Lordship showed a strong disposition to narrow the doc- trine. In both the appeals, the decrees of the Master of the Rolls were confirmed, on the ground that the shares were not illusory. In Butcher and Butcher* Elizabeth Butcher had a power to appoint the fund amongst her children by her present or any future hus- band, by deed or will, from time to time. The power was quite in the common form ; and therefore, perhaps, much weight could not be given to the circumstance, that at the time of making any particular appointments he could not know what the number of objects would ultimately (s) 1 Vcs. & Bca. 79. f>74 OF ILLUSORY APPOINTMENTS. ultimately be ; and, indeed, as appointments arc not often made till the children require their portions, when the probability of many other children must have ceased, this is a difficulty which is not likely to arise. In de- fault of appointment the fund w r as given in the usual way to sons at twenty-one, and to daughters at twenty- one or marriage ; but it was provided, that if any son of her present marriage should attain twenty-one, or any daughter twenty-one, or marry, no child by any future husband should, by marriage or otherwise, be entitled to more, than a moiety of the property, which provision, it might be contended, could not affect the right of each class of children, as between themselves, to a substantial share. She made the unequal appointment which has been mentioned ; and Lord Eldon held, that attending to all the circumstances, and the nature of the trust collected from the deed, he was not authorized to say that the share was not substantial. He relied upon the circumstances, that the power was from time to time, and the number of objects was incapable of being ascer- tained until she reached an age at which she could not have more ; and if there had been one child by a sub- sequent marriage, after all her particular appointments, that child might have taken a moiety of what constituted the whole fund before any appointment, though that should leave to perhaps twenty children of the former marriage only their respective shares of what remained unappointed. It is evident, he observed, how immensely large a discretion was given, and to what the fund might, by repeated executions of the power, be reduced, and this went far to show that her discretion must, as far as it can in any case, be unfettered. 7. As we shall hereafter see what is not appointed, or is ill appointed, goes as in default of appointment, and where the fund was given by the instrument creating the S power OF ILLUSORY APPOINTMENTS. 575 power to the objects in default of appointment, the dying without any appointment as to a part was considered equal to an actual appointment ; and therefore a sufficient share being permitted to descend was deemed tantamount to an appointment, so as to prevent any question of il- lusion (£). 8. And if an appointment was made of part of the fund, excluding some of the objects, but leaving a share not illusory to descend, and afterwards an appointment was made of the residue, wholly excluding or giving an illusory share to some, the last appointment only was held to be void, so that the residue might descend and uphold the former appointment. If a contrary rule had been established, an appointment, leaving a share not illusory to descend, would have been good at first, but have become bad afterwards (u). 9. And although an appointment, abstractedly taken, were illusory, yet it might be justified by circumstances, and equity would not relieve against it. Formerly it was considered, that where but a trifle was given, yet if the child by misbehaviour deserved it, the Court would not vary the appointment (V) ; but ultimately it was held the conduct of the objects of the power could not be taken into consideration (?/;. 10. In Boyle v. the Bishop of Peterborough, Lord Thurlow laid it down, that where gross inequality is accounted for, and, by the situation of the children, is rendered humane, and wise and discreet, the Court will not call it illusory (z). Therefore, if a child become a bankrupt, (t) Wilson v, Piggott, 2 Ves. Ves. 57 . jun. 351. (y) Kemp v. Kemp, 5 Ves. (u) Ibid. See 1 Ves. & Bea. jun. 855. See 1 Ves. & Bea. 97. 101. (z) 1 Ves. jun. 299 ; 3 Bro. (x) Maddison v. Andrew, 1 C. C 243. 576 OF ILLUSORY APPOINTMENTS. bankrupt, and has not obtained his certificate, that may be a sufficient reason to give him a small share (a) And where a father, having advanced a child upon marriage, recited that as a reason for giving her a small share, it was held not to be illusory (b). For the ground of inter- ference in these cases is fraud, and in such case the child would be guilty of a fraud in attempting to set aside the appointment, the parent, perhaps, having advanced more on that account ; the answer would be, he had given that child a substantive share, who there- fore could not complain of the difference (c). Lord Alvanley expressed his opinion, that, perhaps, if a suffi- cient reason could be proved between parent and child, the Court would apply the rule ; but it must be proof, he said, that leaves no doubt whatsoever. And in speak- ing thus, he adverted to extrinsic proof, where no state- ment appears upon the face of the appointment (d). But it seems that in these cases the provision must have moved from the person intrusted with the power of appointment (e), although in one case Lord Alvanley expressed an opinion, that a small share might be given where there is an actual provision made for some, even where it does not move from the person executing the power. The power of distribution, he said, was given in order that there might be an inequality, if necessary. It was therefore, he added, nothing but a trust in the party to discriminate how much each ought to have, under (a) Bax v. Whitbread, 16 Ves. Bax v. Whitbread, 16 Ves. jun. jun. 15. 15. (A) Bristow r. Warde, 2 Ves. (c) See 5 Ves. jun. 368. jun. 366 ; and see Smith v. Lord (a 7 ) Spencer v. Spencer, ubi Camelford, ib. 698 ; Vanderzee v. sup. See 1 Ves. & Bea, 97. Aclom, 4 Ves. jun. 771; Long (e) Mocatta v. Lousada, 12 v. Long, 5 Ves. jun. 445; Spen- Ves. jun. 123. cer v. Spencer, 5 Ves. jun. 362 ; OF ILLUSORY APPOINTMENTS. 57' under every circumstance that ought fairly to enter into his consideration, and with a view of the object of the power, that each of them should receive a provision. If that was satisfied aliunde, it had its object (/). It is however clear that the provision must not have moved from the person creating the power (A C* }'?■ 4 it \ /?--»