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A CONCISE TREATISE
ON
POWERS.
SECOND EDITION
BY
GEORGE EARWELL,
or UXCOLX'S IXN, OXE OF HER MAJESTY'S COUXSEL,
ASSISTED BY
W. R. SHELDON,
OF Lincoln's ixx, bakkistee-at-law.
LONDON :
STEVENS AND SONS, LIMITED,
119 & 120, CHANCEHY LANE,
1893
T
LONDON :
FEINTED BY C. F. EOWOETII, GliKAT NEW STEEET, FETTEE LANE— E.G.
0-
PEEFACE
TO THE SECOND EDITION",
The lapse of eighteen years, with the usual accom-
paniment of decided Cases and Statutes, has rendered
the labour of preparing a Second Edition somewhat
great ; and as the work lias necessarily been done
at various intervals during several years, I feel
conscious that it is only too probable that errors
may have crept in. I can but submit the result to
the Profession, in the hope that it will be as kindly
received as the First Edition. It has been, of course,
necessary to deal, to some extent, with the Convey-
ancing Acts, the Settled Land Acts, and the Married
Women's Property Act, but they arc introduced only
so far as they bear on the subject-matter of the book.
I do not profess to have attemj^ted to write a treatise
on these Acts.
I wish to express the warmest acknowledgment
§ of gratitude to my friend, Mr. W. R. Sheldon, for
^ his untii'inff assistance; without his industry- and
t energy the delay in publishing this Sccund Edition
bo
would have been even greater than it is. I must
iv PREFACE TO THE SECOND EDITION.
also do mj'self the pleasure of acknowledging the
assistance that I received in the chapter on Creation
of Powers from my late friend and former pupil,
Mr. H. R. Webbe, whose untimely death deprived
the Bar of a most promising member, and his friends
of one endeared to all by his unselfish and lovable
nature.
I have also to thank my friend and former pupil,
Mr. Gr. B. Hamilton, of Lincoln's Inn, for his labour
in preparing the Index.
a. F.
Lincoln's Intst,
February, 1893.
( V )
CONTENTS.
Preface
Table of Cases
Table of Statutes
Chapteb
I. Introduction. Division of Powers
n. Extinguishment and Suspension of Powers
III. Creation of Powers ....
rV. AVnO MAY EXECUTE PoWERS .
V. Execution of Powers ....
VI. Excessive Execution ....
YII. Defective Execution ....
YIII. Exclusive Execution ....
IX. Election
X. Praudulent Appointments .
XI. Delegation and Survivorship of Powers
XII. Powers in the Nature of Trusts
Xni. Of the Objects of Particular Powers .
XIV. Powers of Jointuring ....
XV. Powers of Charging ....
XVI. Powers of Sale, Exch^inge, &c. .
XVII. Powers of Leasing
XVIII. Powers of Appointing New Trustees .
PAOE
iii
vii
XXXV
1
11
47
IIG
127
285
327
362
376
403
440
463
486
511
528
544
588
645
INDEX
65"
TABLE OF CASES.
A.
PAQE
Abadam V. Abadam . . . . 524
Abbiss V. Bumey . . . . . . 298
Abbott, re 115
Abel V. Heathcote . . . . 557, 558
Abram v. Cunningham . . . . 94
Acheson v. Fair . . . . . . 468
Adair, re , , . . . , . . 558
Adams re . . . . , . . . 650
and Kensington Vestry,
479, 480
re
V. Adams
Adamson v. Hammond
Affleck V. Affleck . .
r. James . ,
Agassiz V. Squire . .
Ahearne r. Aheame
Airey v. Bower
Albany's Case
Aldridge, re
Alexander, in b. . .
r. Alexander.
. . 194, 298
.. 2G1
..520
. . 50
..432
. . 66
222, 225, 233
.. 15
..324
..133
298, 304,
309, 313, 318, 323, 442
Mills
148
Aleyu V. Belchier .
Alford V. Alford .
Alfreton, re
Alger !'. Parrott . .
Alison, re . .
Allan V. Backhouse
Allanson v. Clithcrow
Allen V, Macpherson
t". Papworth
Alloway v. Alloway 98, 100, 32
36
Allum r. Fryer
Alsop V. Pine
Ambler, re . .
20, 21, 81
403, 434
517, 519
368
56
34
531
519
120
259
363.
368, 374
.. 70
.. 611
.. 648
PACK
.. 186
.. 377
. . 55
.. 630
.. 176
.. 488
. 511, 513
.. 492
70, 461
.. 96
.. 93
71, 145, 461
.. 60
.. 260
.. 40
.. 171
.. 439
. 118, 288
.. 383
.. 649
.. 122
53, 61
.. 387
.. 125
.. 649
53, 261,
265, 450
-, re (21 Q. B. D.) .. 265
- V. Ai-mstrong (7 Eq.) 492,
507
- V. Armstrong (18 Eq.) 321,
530
Ames V. Cadogan . .
Anderson v. Abbot
r. Dawson
Anderton and Milner, re
Andrews v. Emmot
Andros, re . .
Annaly, Lord, re . .
Anon. (Dalison) . .
(Dyer, 371)
(Hen. 7) . .
(19 Hen. 8)
(2 Leon. 220)
(3 Leon) ..
(18Ves.) ..
Ansdell v. Ansdell. .
Anson v. Lee
r. Potter . .
Antrim v. Buckingham . .
Aplin, re
Arbib and Class, re
Archer v. Lavender
Archibald v. "Wright
Ardesoife v. Bcnnet
Armit, re . .
Armstrong, re (5 W. R.) . .
, re (17 Q. B. D
I'. Lynn
Arnold v. Chapman
r. Hardwick
Arthington f. Coverly
Ashby, re . .
Ashford f. Cafe . .
369,
383
394
416
126
2G
148
Vlll
TABLE OF CASES.
PAQB
Ashley v. Ashley 293
Askham v. Barker 205, 407, 416, 430,
432
Atkinson r. Smith . . .. 168,171
Attenborough v. Attenborough . . 115,
296
Attorney -General v. Berryman . . 442
r. Brackonbury 242,
245, 280
i: Burdet . . 340
V. Chapman . . 280
V. Clack . . 42
V. Day . . 331
r. Duke of
Northumber-
land.. .. 510
V. Fletcher 97, 458
r. rioyer . . 283
V. Gosling . . 280
r. G. E. E. Co. 91,
462
V. Green , . 609
V. Hall . . 609
V. Hamilton . . 558
f. Heywood . . 466
V. Moses . . 608
V. Pilgrim . . 609
V. Price . . 478
V. Scott . . 446
V. Vigor 187, 198
r. Wilkinson. . 230
of Victoria v.
.. 344
140, 455
Ettershank
Atwaters v. Birt
Audsley v. Horn
Austen, re . .
Averall r. Wade
Avem V. Lloyd
Ayles, re
Aylwin, re . .
Bacon, re . ,
V. Cosby
Badham v. Mee
Baggett V. Meux
.. 491
653
.. 514
.. 293
.. 487
30, 160
Baggot V. Oughton
Bagot V. Bagot
Bailey v. Abraham
V. Bailey . .
V. Hughes , .
r. Lloyd !. ,
• r. Tennant
370
377
23
19
Bainbridge v. Blair
Baines v. Ottey
Baker v. Farmer . .
r. Tucker . .
V. White . .
Baldock v. Green . .
Baldwin v. Baldwin
■!;. Roche .. 411,
V. Rogers . .
Balfour v. Cooper . .
V. Welland
Ball V. Harris
Bangor, Bishop of v. Parry
Banks v. Banks
Bannerman, re
V. Toosey
Bards well v. Bardswell
Barker, re , ,
Bamett v. Wilson . .
Barrett, re , ,
Barrington, re
V. Liddell
Barron i\ Barron . .
Barrow v. Barrow
Barry r. Barry
Barrymore v. Ellis
Bartholomew v. Harris
Bartlett, Doe d., v. Rendle
Bartley v. Bartley
Barton v. Barton . .
V. Briscoe . .
Bartram v. Whichcote
Bashford v. Chaplin
Baskett v. Lodge . .
Basset v. Basset . .
Bate V. Willats
Bateman r. Bateman
V. Davis
V. Hotchkin
Bath and Montague's Case
Bathurst, re
V. Errington
PAQB
.. 601
.. 605
.. 448
.. 78
.. 175
183, 190
.. 513
.. 650
.. 56
.. 246
.. 114
6
.. 112
.. 539
412, 434
.. 490
.. 536
.. 75
79, 559
318, 609
.. 183
,. 524
.. 198
.. 482
514, 650
168, 171
.. 44
.. 604
.. 112
.. 407
386, 387
253, 367
107, 108
.. 137
699, 602
459
65
16
554
103
541
614, 629
303, 382
48, 321
131
112
335
651
500
TABLE OF CASES.
IX
PAOE
Bayley, re 499
Bayspoole v. Collins . . . , 255
Beachcroft r. Broome . . . . 48
Beaden v. King . . . . . . 5G3
Beale V. Beale .. .. ..512
V. Sanders . . . . . . 357
Beamish v. Beamish . . . . 187
Beard i'. Westcott . . . . 296, 316
Beaumont, re , . . . . . 360
Beddoes v. Pugh 421
Bedford, Duke of r. Marq. of
Abercorn . . 323, 529, 544, 596
Beere v. Hoffmister . . . . 412
BeU r. Iloltby .. .. 141,455
V. Sunderland Building So-
ciety . . . . . . . . 565
Bellamy v. Metropolitan Board of
Works . .
Bellot V. Littler
Bellringer v. Blagrave
Bence, re , ,
Bennett v. Aburrow
V. Wyndham
Bentham v. Wiltshire
Bentinck r. Duke of Portland . .
Benton, re . ,
Berchtoldt v. Hertford . .
Berkeley, Roe </., v. Archbishop of
..547
..553
..333
..298
..176
449, 531, 560
.. 70, 71, 72
291
53
103
York
Bernard v. Minshull
Bemers, re , .
Berry v. Berry
V. Gibbons
Best, re
Bethell r. Abraham
Betton, re . .
Bettyes r. Maynard
Bevan, re . .
• V. Bevan . .
V. Habgood
Bibby v. Thompson
Bickley v. Guest . .
Biddle v. Perkins . .
Bid-well, re . .
Biggs V. Peacock . .
Eigland v. Huddleston
Biguold, re . .
Bilke V. Roper
Birch r. Wade
. . 622
233, 480, 485
..542
.. 6
. . 44
. . 56
. . 42
.. 167, 171
. . 560
..291
.. 613,519
..564
..492
16, 17
.. Ill
..390
34,453
..377
..649
..158
..464
Pi.OE
Bird f. Cliristopher .. .. 15
Birley r. Birley . . 205, 417, 419
Birmingham t'. Kirwan . . . . 376
Bishop V. AVall 156
Blacket v. Lamb . . . . 377, 382
Blacklow V. Laws . . . . . . 147
Blackwood t'. Borrowes .. 153,555
Blaiklock I'. Grindle .. ..393
Blake, re 550
t'. Blake (Beat.) . . . . 342
V. Blake (15 Ch. D.) 218, 220
V. Mamell . . . . 199, 268
Blight V. Hartnoll 146, 147, 291
Blodwell V. Edwards . . . . 489
Blomfield, Doe d., v. Eyre 117, 302
Blore V. Sutton . . . . 334, 348
Blower, re 494
Blunt V. Lack 385
Bolingbroke's Case . . . . 349
Bolton, re (31 Ch. D.) . . 488, 489
, re (L. R. 5 Ex.) . . . . 622
, Duke of f. Williams . . 258,
259
Bond v. Rosling 593
V. Taylor 41
V. Walford 39
Bonnifaut v. Greenfield . . . . 90
Booker v. Booker . . 272, 380, 389
Booth V. A' Beckett ,. ..626
t'. AUngton .. .. .. 251
t'. Coulton .. .. ..531
Bootle V. Blundell 530
Borrowes, re . . . . 160, 517
c. Borrowes .. ..521
Borton v. Borton . . . . 66, 67
Boughton f. Boughton . . . . 393
f. James.. .. .. 315
Bourne, re . . . . . . . . 254
Bousfield t'. Hodges . . . . 553
Bovey r. Smith .. .. ..321
Bowen, re ., .. .. .. 153
Bowes V. East London Water-
works Co. . . . . . . 357
Bowles's Case . . . • . . 635
Bowles f. Bowles . . . . . . 499
Bown, re . . . . . . . . 122
Boxall V. Boxall 94
Boyce f. Hanning. . .. ..113
Boycot V. Cotton . . . . 636, 536
TABLE OF CASES.
Boyd, ex parte
, re . .
V. Petrie
Boyes v. Cook
PAQE
.. 265
198, 301
17, 109
222, 225
Boyle V. Bishop of Peterborougli 163,
401
Boys V. Bradley 506
Brace, re .. . . . . •■ 215
Brackenbury, re .. .. ..651
Braddick v. Mattock . . . . 343
Bradford r. Young . . 120, 134
. , Lord V. Lord Eomney 402
Bradley v. Cartwright . . 59, 99, 472
Bradly r. Westcott . . , . 53
Bradsbaw f. Fane. . .. .. 558
Brain, re 344
Bramball v. Hall 342
Brassey v. Chalmers . . 98, 445, 457,
459, 557
Brayr. Bree .. 161, 292, 322
Braybrooke, Lord f. Attorney-
General 175, 283
Brazier v. Hudson . . . . 94
Breary, re . . . , . , .. 651
Breed, re . , . . . , . . 37
Brend r. Brend .. ., .. 167
Brewer v. Swirles . . . . . . 422
Brewster v. Angell . . 545, 597
Brice v. Brice 392
Brickenden v. Williams . . 239, 243
Bridger v. Dean . . . . . . 405
Bridges v. Longman , . . . 449
Bridgman, re . . . . . . 650
V. Green . . . . 427
Briggs V. Lord Oxford . , ..111
V. Penny . . . . 484, 485
. V. Upton . . . . . . 56
Bringloe, re .. .. .. 178
V. Goodson . . . , 26
Briscoe v. Briscoe . . . . . . 392
Bristow f . Bootbby .. ..113
V. Skirrow (27 B.) . . 7
V. Skirrow (10 Eq.) 7, 244
V. Ward . . 36, 104, 105, 164,
316, 366, 384
Brodie v. Barry . . . . 387, 393
Brodrick r. Brown .. 174,176
Bromley, Doe d., v. Bettison . . 623,
635, 636, 637, 639
Brook V. Brook
Brooke v. Kavanagh
• V. Mcmagh
Brookman v. Hales
V. Smith
PAGE
.. 467
.. 635
.. 635
.. 192
51, 56
.. 360
.. 377
.. 360
.. 46
8
2
.. 35
.. 141
.. 313
296, 303
.. 107
.. 46
.. 377
Brooks and Higham, re . ,
Brooksbank, re . . . .
Broom, re . ,
Brophy r. Bellamy
Brough, re . .
Brown, re (32 Ch. D.) . ,
, re (10 Eq.)
, re (18 Ch. D.) . ,
, re (1 Eq.) . .
and Sibley, re
V. Bamfotd
V. Brown (52 L. T.
V. Brown (2 Eq.) .
V. Higgs . . 365, 464, 466, 476
V. Nisbett . . 137, 164, 303
r. Pocock 472
V. Smith . . , . . . 43
Browne v. Hammond . , . . 490
V. Hope 250
V. Paull , , . . . . 555
Brownlow v. Lord Meath . . 408
Bruce v. Bruce . . 197, 312, 341
Brudenell v. Elwes 269, 307, 315
Brune, Roe d., v. Prideaux .. 609
. , d., V. Rawlings . . 624
Brunsden v. Woolredge . . , . 509
..74
. . 174, 334
Hobart.. 399
..360
..294
..66
..527
. . 507, 508
..321
Bulmer v. Jay , . . . . . 55
Bulteel V. Lord Abinger . . . . 443
V. Plummer 252, 363, 365,
367, 373, 409, 511
Burdett 1/". SpilsbTiry .. ..137
Burleis'h v. Pearson
Buchanan v. Angus
Buckell v. Blenkhom
Buckingham, Earl of
Buckley v. Howell
Buckton V. Hay . .
Bull V. Kingston . .
BuUmore v. Wynter
Bullock V. Downes
V. Fladgate
Burnaby v. Baillie. .
Burnett r. Maim . .
Bumham v. Bennett
.. 304
269, 442
.. lis
.. lis
TABLE OF CASES.
Zl
PAOE
Burrell v. Burrell 364
1'. Crutchley .. ..491
■ V. Lord Egremont . . 541
Burrough v. Philcox . . . . 46G
Burton v. Sturgeon . . . . 38
Bushell r. Bushell 172
Busk V. Aldam . . . . 325, 326
Butcher, ex parte . . . . . . 459
. r. Butcher 162,250,491
• r. Jackson . . , . 412
Bute, Marquis of, re . . . . 532
Butler V. Butler . . . . 300, 375
• r. Gray .. .. 190,408
■ r. Powis .. ,. .. 349
Butricke v. Broadhurst . . 391, 392
Buxton r. Buxton . . .. .. 180
Byam v. Byam , . . . . . 459
Byrne, re . . . . . . . . 480
Byron, re 7, 171, 233
Cafei'. Bent .. ..42, 43, 647
Cambridge v. Rous . . ,.178
Camden, Marquis v. Murray . . 45
Cameron, re . . . . 74, 77
Camoys v. Best . , . . . . 648
Campbell v. Home .. 413, 414
V. Leach..267,318, 337, 346,
599, 604, 614, 616
r. Sandys .. .. 161
t\ Wardlaw . . . . 603
466, 507, 508
373
Caplin, re , ,
Capon, re , .
Car berry v. McCarthy
Cardigan, Lord v. Armitage
t'. Ciu-zon-Howe
V. Montague
Cardross, re
Carlyon v. Truscott
Carr, re
— — V. Atkinson
I'. Li-vang
Carroll v. Graham
Carter v. Carter
• v. Silbcr
V. Taggart
Carthew v. Enraght
.. 469
.. 104
.. 42
.. 564
124, 131
82, 151
.. 43
311, 313, 442
25
307
177
390
249
4G6, 470, 476
Cartwright, re
Carver v. Bowles .
V. Richards
PAOB
635
,301, 377, 382, 432
190,204,205,329,
416
Carvill v. Cai-vill . .
Case V. Drosier
Casterton v. Sutherland .
Cattlin V. Brown . .
Caulficld V. Maguire
Cavan, Lady v. Doc
, Lady r. Pulteney
Cave V. Cave
.. 70
.. 114
.. 472
.. 290
300, 537
.. 172
.. 381
.. 159,226
Cecil t'. Langdon . . . . . . 647
Chadwick, Doc cL, v. Jackson .. 99
V. Dolcman 272, 498, 499,
501
Chamberlain v. Hutchinson 238, 244
V. Napier . . 363, 365
Chambers, re .. .. 16, 17
V. Chambers . . . . 251
V. Smith . . 13, 24
Champney v. Davy , . 247, 249
Chandler v. Pocock . . . . 228
Chapman r. Bradley . . . . 39
V. Brown . . , . 315
V. Gibson 329, 336, 338, 341,
343
215
282,
283
.. 449
613, 640
384, 385
289, 323, 441
.. 198
.. 377
394, 543
.. 37
.. 267
.. 359
279, 325
.. 550
.. 638
.. 379
.. 301
.. 230
320, 536
.. 644
Charles r. Burke , .
Charlton r. Attorney- General
Chawner, 7-e (8 Eq.)
, re (1892, 2 Ch,
Chesham, Lord, re
Chester v. Chadwick
Chesterfield, Lord, re
Chetwynd v. Fleetwood
Chichester v. Coventry
Child V. Child
V. Douglas . ,
Cholmeley v. Paxton
Cholmondclcy, re , .
V. Clinton
Church V. Brown . .
V. Kemble . .
Churchill v. Chiu-chill
t'. Dibben
Churchman v. Harvey
Clark, ;r (1 Ch.) ..
-, re (14 Ch. D.) 223, 225, 235, 487
Zll
TABLE OF CASES.
Clark V. Burgh
V. Royal Panopticon
1'. Seymour
- V. Smith
Clarke v. Berkeley
V. Chamberlin
V. Hogg . .
Clavering r. Clavering
Clay to Tetley
V. RuflFord
Claydon v. Green . .
Clayton's Case
Clegg V. Rowland . . 602,
Clements v. Ward . .
Clare's Case . . 175,
Clifford V. Clifleord
V. Koe
Clinton v. Hooper . ,
Clitheroe Estate, re
Clogstoun r. Walcott
Close V. Coote
Clough V. Clough . ,
Cloves V. Awdry . .
Clowdsley v. Pelham
Cluue V. Apjohn . .
Coates to Parsons, re G47,
Coatsworth v. Johnson
Cocker v. Quayle . .
Cockerell v. Cholmeley
Cockroft V. SutclifFe
Codrington v. Lord Foley
V. Lindsay
Coe, re
Coffin V. Cooper , . 16,
Cofield V. Pollard
Cole V. Hawes
V. Sewell
V. Wade . . 460,
Coleman, re
Collingwood v. Stanhope
Collinson v. Collinson
Colson V. Williams
Colyer v. Finch
Comber, re . .
r. Graham
Comberford's Case
Combes' Case
502,
PAQE
167
448
449
153
346
611
, ,
142
, ,
455
37
, ,
604
88, 96 1
554
91
462
616
604,
635,
637
157
266
629
182
491
, ,
167
, .
112
184,
185
369
, .
221
233
, ,
78
369
648,
649
355,
632
, ,
131
, ,
359
410,
429
532,
533
376
25, 46 1
408,
438
224
, ,
482
113
476,
508
, .
25
498,
500,
503,
504
218
551
84
181,
190
65
602
440,
446
Commissioners of Charitable Do-
nations v. Deey . .
505
Commons v. Marshall
610
Conolan v. Ley land
264
Conolly V. MacDermott .
. 408
431
Constable v. Bull . .
.
483
Conway r. Fenton
.
593
Cook V. Dawson . .
. 78, 81
449
Cooke V. Briscoe . .
.
106
V. Cooke
.
287
V. Crawford . ,
.
453
v. Cunliffe
•
190
Cookes, re . .
. 74
459
Cookson V. Lee
t , ,
554
Coombes v. Brookes
650
Cooper, ex parte
■
354
21
554
411
, re . ,
• • •
'~~^—^^ to xlarlecn •
f Pnnnrr ?70 99''
385,402
,411
295
541
109
T Mnrfin ITl 1 fiO
219,271
330
.. ai;™i,+
24
515
Coore V. Todd
Coote V. O'Reilly . ,
538
Corbet v. Corbet . .
481
Corlass, re . .
. .
490
Comick V. Pearce . .
73
Cor ranee v. Corrance
40
Corser v. Cartwright
. 82, 84, 88
Costabadie v. Costabadie .
45
Cotter V. Layer
. 216,
329
Cotterill, re
652
Cotton, re ,,
. 33, 34
184
Coulman, re
. 146,
306
Coulson, ex parte . ,
, . ,
265
Courtenay v. Courtenay .
.
647
Courtier, re
. . .
43
Coutts V. Ackworth
• . .
379
Coventry v. Coventry
. 517,
618
Cowley, Earl v. Wellesley
640
Cowman v. Harrison
482
Cowper, Jones d., v. Verney 637,
640
Tlyr 1 -l-l
226
322
^^~'^^^' V* jyLanteii . . ,
Cowx r. Foster
. 185,
Cox, Doe d., V. Day
616
V. Bennett
. 264,
265
V. Chamberlain
•
266
V. Cox
, 322,
646
TABLE OF CASES.
Xlll
Coxc I'. Day
Cracknall v. Janson
Craven v. Brady . .
Crawford, re
V. For aha w
Crawshay, re
Creagh, re . .
V. Murphy
Crewe v. Dickin
Crockett v. Crockett
Croft, re . . , ,
Crokor v. Martin . .
Crommelin, 7-e
— — V. Crommelin
PAOE
.. 633
.. 565
.. 310
.. 56
97, 458
. 249, 423
,. 514, 517
.. 482
..547
482,483, 492
..280
..393
..610
.. 142
.. 305
. 487, 488
31, 268, 269
.. 255
.. 464
.. 101
Crompe v. Barrow
Crook V. Hill
Cross r. Hudson . .
Crossley v. Elworthy
Crossling v. Crossling
Crossman t». Bevan
Crozierv. Crozier 100, 308, 310, 320,
321, 468, 476
Cruikshank v. Duffin . , . . 447
Ci-use V. Nowell . . . . . . 17
Cruwya v. Colman . . . . 608
Cuddon r. Cuddon . . . . 640
Cuff V. Hall 160
Cull, re 275
Cumberlege v. Cumberlege-Ware 163
Cunard, re . . . . . . 652, 653
Cunliffe v. Brancker . . , . 6
Cuninghame v. Anstruthcr 36, 164,
177, 397, 407, 420
Cunningham and Fray ling, re . . 453
V . Moody .
.. 276
Cunnynghamo v. Thurlow 17, 438,
439
Cunynghame, re . .
.. 295
Curling v. Austen . .
.. 49
17
Curnick v. Tucker. .
.. 481
Currey v. Brough . .
.. 8
Currie, Re . .
.. 250
Curteis r. Kcnrick
.. 231
Curtis V. Fulbrook
.. 71
Cutten V. Sanger . .
.. 419
Cutto r. Gilbert . .
.. 211
PAOE
D'Abbadie r. Bizoin 293, 2S9, 320,
423
D'Adhemar r. Bertram , . . . 651
D'Angibau, re . . . . 9, 124
Daffome v. Goodman .. 491, 529
Dalby r. Tullen 145
Daly, re , , . . . . , . 133
V. Beckett . . 604, 605, 637
Dalzell V. Welch 495
Daniel v. Adams . . . . . . 553
v. Arkwright .. ., 418
r. Dudley . . . . 65, 56
• V. Uply 288
Danne v. Annas . . . . 140, 459
Darlington, Lord v. Pultoney .. 172
Dashwood v. Magniac 603, 605, 635
V. Peyton . . . . 378
Daubeny v. Cockbum 339, 415, 426,
431, 432
Davey v. Durrant. . 552, 553, 560
V. Ward , . . . . . 46
David, re . . 60, 178, 179, 363, 371
Davidson t". Eook . . , , . , 151
Davie's Case . . . . . . 39G
Davies, re . . 233, 238, 239, 240, 241,
243, 256
to Jones, re . . . . 74
r. Davies (37 L. J.) . . 40
V. Davies (7 W. R.) . . 179
V. Davies (1892, 3 Ch.) 8, 233
f. Davies (38 Ch. D.) 635, 637
V. Fisher 190
V. Fowler .. .. 254, 280
V. Huguenin 17, 407, 409, 499,
504, 543
• V. Merceron . . . . 114
-v. Thorns 180
Davis, ex parte .. ., .. 651
, re 651
and Cavey, re . . . . 639
r. Harford. . . . 347, 591
V. Uphill 421
Davison v. Stanley . . . . 616
Dawes r. Tredwell . . . . 522
Dawson, re . . . . . . . . 295
r. Bank of Whitehaven 168
r. Dawson . . . . 543
V. Duke of Cleveland . . 398
XIV
TABLE OF CASES.
PAGE
Dawson r. Olirer-Massey . . 141
Dayrcll v. Hoare . . . , . . 598
Deane v. Croft 280
De Beauvoir v. De Beauvoir . . 518
De Burgh-Lawson, re . , . . 263
De Bussche t'. Alt 442
Degf. Deg 209
D'Huart r. Harkness .. 133,134
Delany ;•. Delany . . . . . . 4-59
De Lisle v. Hodges . . . . 252
DeLusi, re .. 237,240, 243
Denis, re . , . . . . 495, 496
Denne v. Judge , . . . . . 90
Dennett V. Pass .. .. ..321
Denton, re .. .. .. ..198
De Serre v. Clarke . . . . 277
De Teissier, re . . . . . . 593
Devall V. Dickens . . . . . . 55
Devaynes «7. Robinson .. 161,560
Devitt v. Kearney . . .. 459,462
Devonshire, Duke of v. Cavendish 288,
309, 493
Dewar v. Maitland
Dicconson, re
V. Talbot
Dicken v. Hamer . .
Dicker v. Angerstein
Dickinson v. Mort. .
V. Teasdale
Digby, ex parte
Digge's Case (Sug. Pow.)
Digges' Case (1 Co. Rep.)
Diggles, re
Dike V. Ricks
Dillon r. DUlon
V. Parker . .
Dingwell v. Askew
Disney v. Crosse . .
Dixon, re . .
V. Pyner
Dodkin v. Brunt . .
Doe V. Bettison
391, 393
.. 361
.. 561
.. 603
.. 551
295, 323
9
.. 399
.. 540
11, 15
36, 164
.. 480
49, 151
.. 517
. . 392
.. 221
.. 180,371
496
209
651
..623,635,036, 637,
639
V. Bird
V. Britain
V. Burlington, Lord
V. Burrough . .
V. Calvert
119
635,
. 030
.. 634
615, 617
Doe V. Carter , ,
V. Cavan . ,
V. Claridge . ,
r. Clarke
V. Courtenay
t\ Creed , ,
V. Day
V. Denny
i\ Eyre
V. Fen-and
V. Forwood . .
r. Gilbert
V. Glover
V. Goldsmith . .
V. Grazebrook
V. Haddon
r. Halcombe . .
V. Harvey
r. Hellings . .
V. Hole
V. Hughes
V. Jackson
V. Keir
V. Lloyd
V. Lock 599, 624
r. Martin
V. Milbome . .
• r. MorsG
V. Oliver
V. Passingham
V. Peach
V. Radcliffe . .
V. Rendle
V. Rogers
r. Rutland
V. Sandham . .
V. Shotter
V. Spencer . .
V. Stephens . .
V. Tanicrc
V. Thomas
V. Thorley
V. Tomkiuson
V. Vardill
V. Watts
V. Williams . .
V. WUson . . 600,
• V. Withers
Doering v. Doering
PAOK
. 617
. 332
. 81
. 490
. 617
, 624
. 616
161, 162
117, 302
626, 638
.. 617
8
.. 67
.. 57
623, 624
.. 175
.. 611
618, 625
.. 623
.. 624
72, 81
.. 99
.. 267
.. 623
, 633, 034, 039
.. 276,472
..36, 78, 164
.. 357,626
..355
.. 5
.. 139
.. 614
..599
..623
..633
..638
..69
..556
599, 602, 637
..357
68,516
..62
..155
..488
..357
.. 599,639
625, 626, 632
.. 638,641
..339
TABLE OF CASES.
XV
Doherty v. AUman
Dolphin V. Robins
Dolton V. Hiven , .
Domvile v. Winningtun
Domville v. Lamb . .
DonnoU V. Church
Donoghue v. Brooke
Doorly v. Arnold . .
Doran v. Wiltshire
Dorin v. Dorin
Douce V. Ton-ing'ton
Doughty V. Bull . .
Douglas, Doe d., v. Lock
PAOE
635
133
79
500
412
338
3G3, 491, 494,
496
37
83
V. Cooper
V. Douglas
v. Willes
Dover v. Alexander
V. Gregory . .
Dowell V. Dow
Dowling V. Foxall
Down V. Worrall . .
Downes V. Grazebrook
r. Timperon
Downing, re
Doyley v. Attorney-General
Drake r. Attorney -General
487
76
548
599, 624,
633, 634, 639
134, 215
383, 391
396
488
78
347
615
471
554
49
480
508
329, 337
V. "Wliitraore
210.
Drohan v. Drohan
Duckett V. Gordon
Dugdale v. Meadows
Duggan V. Duggan
Duguid v. Eraser . .
Duke V. Doidgc
Dummer v. Pitcher
Dundas v. Wolfe Murray
Dungaunon v. Smith
Dunn r. Brjan
V. Flood . .
Dunne's Trusts, re
Dyas V. Cruise
Dye V. Dye . .
Dykes, re . .
Dymoke, Doe rf., V. Withers 638,641
477,
7, 278,
280
.. 448
.. 595
.. 522
.. 283
.. 416
216, 249
.. 500
. . 230
.. 321
290, 291
605, 635
.. 590
12, 28
331, 348, 614
174
336
E.
PAGE
.. 507
, . 253, 370
. . 186, 193
101, 148, 149
..531
Eagles V. Lc Breton
Ealcs V. Drake
Enrdley-Wilmot, re
Earle v. Barker
V. Bellingham
r. Wilson
East, re
V. Cook
East London Railway Company,
ex parte . .
Easton v. Pratt
Easum v. Appleford
Eaton r. Smith
Eccles r. Cheyne . .
Eddowes, re
Eden r. Wilson
Edge worth v. Edge worth
Edie f. Babington. .
Edleston v. Collins
Edwards i>. Edwards
V. Milbauk
r. Saloway
V. Slater. .
Egbert v. Butter . .
Egmont, re. .
, Doe d.
488
650
394
..331
..641
240, 247, 251
..459
..236
..469
..145
526, 535
.. 233
167, 171
.. 495
.. 610
.. 237
. . 202
.. 339
.. 112
lings
Egremont, Doc d.
rough
teuay
wood
Lord V. Hel-
Lord r. Bur-
623
634
brook
phens
Eidsforth r. Armstcad
Eilbcck V. Wood . .
Eisdell I'. Hammersley
Eland v. Baker
V. Eland . .
Elias r. Snowdon Slate Company 604
ElUott f. EUiott . . 180, 185, 232
r. Gurr 39
t'. Merryman . . . . 79
Ellis V. Nimmo 328
r. Cour-
. . 616, 617
V. For-
..617
V. Graze-
. . 623, 624
V. Ste-
599, 602, 637
81
216
21
403
S3
XVI
TABLE OF CASES.
Ellison, re . . .,
V. Thomas . .
Elmsley r. Young. .
Else r. Barnard
El-wes V. Causton , .
Elton V. Elton
V. Harrison , .
r. Sheppard . .
Emmet v. Clarke . .
England v. Lavers
Eno V. Eno. .
Espinasse r. Luffingham
Eton College v. Bishop of Win-
chester . .
Eustace, in b.
V. Robinson
Evans, re . ,
V. Carrington
V. Evans (1892, 2
r. Evans (23 B.)
V. Jackson, ,
r. Massey . .
V. Saunders
V. Walker . .
Evelyn v. Evelyn . ,
e;. Raddish
Evers v. ChaUis . .
Eynon, in b.
Eyre, re
Ch.
PAGE
651
504
508
553
251
546
70
67
651
381
114
53
557
214
109
, 644
.. 39
) .. 57
190, 231
.. 595
.. 488
.. 274
.. 293
533, 537
.. 642
.. 298
.. 137
.. 12
483,
E.
Fagg, re 651
Falkner t. Butler . . 247, 249, 494
Farmer V. Bradford .. ..181
V. Martin . . 206, 416, 432
Famcombe, re .. 298,300,312
Famell, re . . . . . . . . 177
Farrar v. Barraclough . . . . 448
V. Farrars, Limited 560, 554,
502
Faulkner v. Lord Wynford . . 473
Fearonv. Desbrisay .. ..412
V. Lord Aylesford . . 527
Femvick, in b. . . . . . . 216
V. Greenwell . . . . 468
Ferrand v. Wilson. . 110, 111, 112,
315, 554
Farrier v. Ferrier . ,
V. Jay
Festing v. Taylor . .
Field V. Moore
V. Seward
r. Sowle ..258,
Fielden v. Ash worth
Finch V. Hattersley
■ • V. Hollings worth
Firmin v. Pulham . ,
PAQB
,. 547
,. 185
,. 524
,. 117
,. 370
259, 260, 261
.. 507
.. 78
475, 608
.. 414
, 91, 462
.. 7
501, 504
.. 539
Fisher and Haslett, re
Fitz V. Smalbi'ook . .
Fitzgerald, re (1891, 3 Ch.
, re (1 I. R. Eq
V. Chapman . . . . 38
r. Fauconberge .. 172
V. Waring . . . . 594
Fitzroy v. Duke of Richmond . . 420
Fitzsimons v. Fitzsimons . . . . 390
Fitzwilliam's Case . . . . 175
Flanders r. Clark 92
Fleming v. Buchanan . . 254, 338
Fletcher v. Ashbumer . . 10, 648
V. Fletcher . . . . 186
Flower, »•« (63 L. T.) .. .. 198
, re(34W. R.) .. ..287
, re (27 Ch. D.) . . . . 547
Floyer r. Bankes .. .. 113,523
Flux V. Best 74
Folkes V. Western. . . . 401, 407
Forbes v. Peacock. .71, 82, 85, 93, 461
Ford V. De Pontes . . . . 216
r. Tynte 399
Fordham v. Speight . . . . 481
Forrester v. Cotten . . 386, 388
Forster v. Abraham . . . . 654
• V. Hoggart . . . . 150
V. Thompson . , . . 76
Fortescue v. Gregor . . . . 177
Forth V. Chapman. . . . . . 57
Fosberry v. Smith. . . . . . 542
Foster v. Cautley . . . . 177, 368
V. Reeves . . , . . , 632
V. Smith . . . . . . 531
Foulkes V. Williams . . . . 233
Fowler, re . . . . . . . . 384
V. Cohn . . . . 320, 493
Fox V. Buckley 339
1'. Gregg 497
TABLE OF CASES.
XVU
PAGE
PAGE
Fox r. Mackreth . .
92
565
Gillibrand v. Goold
534
Fraucombo v. Hayward
233
Gisbome v. Gisbome
43, 46
Franklin's Case
141
Glass V. Richardson
38
Fraser v. Murdoch
441
Gleadow v. Leetham
523
Freeland r. Pearson
61
23G
Glonny, re . .
648
Freeman, re
653
Godden v. Crowhurst
25
211
212
Godfrey v. Godfrey
483
Freke v. Lord Barrington
110
Goldsmid v. Goldsmid
417
Freme v. Clement. . 1,
229,
236,
24 G,
247
Goodere v. Lloyd . .
Goodill V. Brigham
239
68
Freshfield v. Reed..
137
Gooding r. Read . .
. 293
, 298
Frith and Osborne, re
656
Goodinge v. Goodinge
608
Frowd, re , ,
277
278
Goodman, re
.
488
Fry V. Capper
295
Goodtitle r. Funucan
. 612,
615,
V. Porter
131
616
, 619
Fryer r. Coombs ..
625
634
63
Fussell V. Dowding
39
Goodwin, re
. .
489
Fytche v. Fytche . .
387
.
550
Goodwyn v. Goodwyn
342
Goolding v. Haverfield .
402
Gordon v. Gordon
. .
488
G.
Gore, re
Gosling V. Carter . .
539
80
G.,re
446
Gosset, re , .
420
Gadd, re
4
>, 43
Gotch V. Foster
.
321
Gaffee, re . .
122
Gould V. Gould
. 105
119
Gainsford v. Dunn
181,
184
371
Gower r. Gower . .
.
397
Gale V. Gale
Garde v. Garde
217
220
. 477
507
300
103
Graham v. Angell. .
Gardiner, re
265
393
D.) ..
40
r Hfi "R "1
43
' V. J. Lll . I
- -
349
■ c. XULiiig
Garland v. Brown . .
293
Grange v. Ti\-ing . .
125
Gamctt-Orme to Hargrcaves
49
Grant v. Grant
651
Garth v. Townsend
Garthwaite v. Robinson
193,
329
363
30 504
509
Granville v. MacNeile
618
Gartside, ex parte . ,
553
G rat wick, re
. 179,
232
Gas Light Company v. Towse . .
331,
Graves v. Graves . .
76
347,
350,
592
302
tt;«i-c
402
Gatenby v. Morgan
^■"^^^^ I . xxicics . .
Gray, re
488
Gee V. Gumcy
407
Graydon v. Hicks . ,
98
George v. Milbanke
. ,
. ,
339
Great Northern Railwaj
r Com-
GeiTard v. Butler . .
301
pany, re . .
552
Gibbes, re . ,
215
Greaves, re . .
229
Gilbert v. Whitfield
252
Green, re (40 Ch. D.)
. 112,
531
Gt\lch.v\»t, ex parte . , 53,
Giles V. Homes
Gill, i»i
261,
265,
450
153
95
530
.. rTrrrn f'^ T it L ^
17 141
491
r f'^ Mrr \
377
GiUara t'. Taylor . .
F.
510
V TTmvfiT*/!
507,
510
h
XVlll
TABLE OF CARES.
PAGE
Green v. Marsden . . 481, 482
V. Pulsford . . . . 429
Grcenaway v. Hart . , G27, 629
Greene v. Gordon . . . . 7, 215
Greenliam r. Gibbeson .. 131,138
Greenlaw v. King . . . . . . 6G3
Greenway r. Greenway . . 74, 548
Greetham v. Colton . . 81, 85, 151
Gregson, re. , .. .. .. G46
Gresham's Case . . . . . . 440
Gretton v. Haward . . . . 385
Grice v. Sbaw . . . . . . 32
Grier v. Grier . . . . . . 529
Grieveson v. Kii'sopp . . . , 10
Griffin v. Stanhope . . . . 7
Griffith-Boscawen v. Scott 177, 191
Griffith r. Pownall .. ..115
Griffiths, Doe d., v. Lloyd . . 623
V. Gale . . 236, 291, 493
V. Vere . . . . . . 344
Griggs V. Gibson . . . . . . 387
Grissell, re . . . . . . . . 265
!■. Swinhoe .. 381,389
Grove, re . . . . . . . . 488
Grover v. Hugell . . . . . . 562
Grubb, Doe d., v. Lord Burling-
ton 635, 636
Guest V. Smythe . . . . . . 565
Guibert, re . . . . . . . . 653
Gulliver v. Vaux , . . . 64, 65
Gully V. Cregoe . . . . . . 481
H.
Hadly, re 648
Haldenby v. Spofforth . . . . 558
Hale V. Hale 291
V. Pew .. .. Ill, 316
Hales v. Margerum .. 65,176
Halfhead v. Shepherd . . . . 465
Hall, re 44
i'. Carter .. .. 515,533
V. City of London Brewery.. 638
V. Dewos 453
V. HaUet 92
V. Hewer . . . . 499, 502
r. Leitch 194
Hall V. May
V. Montague . .
Hallett io Martin
Hallows V. Lloyd . .
Hally burton, in bonis
Hamilton v. Hamilton
• r. Earwan
V. Royse. ,
Hammond v. Neame
Hampshire r. Wickens
Hampton v. Holman
Hanbury v. Tyrell
Hancock v. Hancock
Handcock, re
Harcourt v. Pole . .
Hardaker v. Moorhouse
Harding v. Glyn . .
Hare v. Hare
Hargreaves, re
Hargrove, re
Harland v. Trigg . .
Harley v. Moon
Harnett r. Macdougall
V. Yieldinsr. .
331,
PAGE
.. 453
.. 430
354, 640
..655
..133
..384
.. 412,429
198, 298, 301
..323
..638
.. 293,316
Harper v. Hayes. .
Harries, re . .
Harrington v. Harrington
Harris, re . .
V. Harris . .
V. Lloyd
V. Watkins
.. 492
.. 157
.. 383
.. 614
.. 21
464, 504
.. 102
.. 293
.. 466
.. 484
.. 246
.. 107
331, 348, 349
..552
246, 247, 249, 250
101, 542
.. 185
.. 650
.. 490
79,392
Harrison, re . . . . . . 649
V. Harrison . . . . 439
• V. Randall 404, 406, 415, 437
t'. Round . . 17, 27
• V. Symons . . 104, 496
Harrold v. Harrold . . . . 37
Hart V. Middlehurst . . . . 529
r. Tribe 481,492
Hartland v. Murrell . . . . 78
Hartridge, Doe d., v. Gilbert . . 8
Harvey, re .. . . . . . . 298
v. Harvey.. 176,213,232
V. Stracey 179, 190, 301, 306,
313, 490
Haseldine, re . . . . . . 487
Hastio, re . . . . . . . . 488
Hastings, re .. . . 261, 264
Haswell v. HasweU 28, 29, 30, 31
TABLE OF CASES.
XIX
PAGE
Hattatt, re 654
Hawker. Hiiwke .. .. ..174
Hawkins i-. Kemp 129, 138, 139, 443
Hawthorn v. Shedden . . 7, 234
Hay V. Watkius 299
Hayes v. Oatlcy , . , . . . 325
Haynes v. Haynes . . . . 251
Hays V. Bailey . . . . 534, 536
Head and Macdonald, re . . . . 75
Healy v. Donnery . . . . . . 62
Hearle v. Greenbank 123, 125, 393
Heath v. Wickham . . . . 18
Heather V. O'NeU . . .. 166,172
Heatley v. Thomas . . 258, 259
Hebblethwaite v. Cartwright . . 532
Heelis v. Blain
Hele V. Bond
V. Green
Hellier r. HcUier . .
Henchman i\ Attorney- General
Henderson v. Hay. .
Henry v. Henry . .
V. Strong..
Henty v. Wrey
Henvell v. Whitakcr
Herbert v. Webster
Hernando, re
Heron v. Stokes
Herreyong's Case . .
Herring v. Barrow
Hervey v. Hervey
6
271
607
211
394
..638
..389
. . 25
405, 532, 542
. . 78
..295
..225
. . 276, 472
..350
. . 53
30, 202, 320, 341,
518, 522
46, 478, 555
.. 305,494
Hewett r. Hewett. .
Hewitt V. Dacre . .
Hiatt V. Hi 11 man . . . . . , 555
Hibbert v. Hibbert . . . . 507
Higgins r. Lord Rosse . . 358, 641
Higginson v. Barneby . . . . 528
Hill V. Crook 487
V. Hill.. .. 516, 544, 596
V. Pritchard . . . . . . 27
HUlman v. Westwood . . . . 651
Hilton f. Hilton 370
Hinchinbroke, Lord, v. Seymour . 405
Hindle r. Taylor .. .. 109,541
Hipkin v. Wilson . . . . . . 167
Hirst, re 360
, re (W. N. 1892) . . . . 452
Hixon V. Oliver . , , . . . 67
Hoare v. Osborne . .
PAGE
242
Hobday v. Potcr-s . .
262
Hockley V. Mawbey
.. 115
494
Hodges, re .,
40
Hodgeskins v. Tucker
356
Hodgkinson v. Crowe
629
Hodgson V. Halford
.. 293
423
Hodkinson v. Qninn
.. 13, 14, 80
Hodsdon v. Dancer
223
Holder v. Preston . .
8
Holdsworth v. Goose
21
Hole V. Escott
23, 202
289
Holies V. Carr
622
Holliday v. Overton
118
Hollingshead v. HoUingshead . .
125
Holloway, re
. .
50
.. /^ii 1
. . 54, 55,
328, 333,
178
338,
Holmes v. CoghUl . . 255,
339
V. Godson . .
64
v. Penny
Holmesdale, Lord v. West . . 530
Holt V. Burley . . . . . . 145
Holyland v. Lewin 229, 236, 246, 247
Honywood v. Honywood .
Hoole V. Smith
Hope V. Hope (3 P. & D.)
V. (1892, 2 Ch.;
V. (5 GifP.) .
V. LiddeU . .
V. Lord Cloucuriy .
Hopkins /•. IMyall . .
Hoplrinson, Doe d., i
Horlock V. Smith . .
Horn V. Horn
Home V. Barton . .
Homer, re . .
r. Swann . .
Horseman r. Abbey
Horton, re . .
Horwood V. West . .
Hoskin, re . .
Hotchkys, re
Hotlej- V. Scott
HoiighaTu !'. Sandys
Houston V. Houston
How V. Wliitficld . .
Howard, re . .
1)2
34^
605
551
40
123
184
547
357
..330
Feri-and . . 626,
638
.. 131
. . 83
..545
..488
..16
.. 118
..245
.. 482
.. 325
10, 593
..629
.. 120, 173
..164
..454
..494
XX
TABLE OF CASES.
98,
176,
178,
Howard V. Ducane
Howell V. Barnes . .
How ells t'. Jenkins
Howliu r. Slicppard
Hubbard v. Lees . .
Hudson V. Carmicbael
Hughes V. Turner. .
V. Wells . . :
Huguenin r. Baseley
Huish's Cbarity, re
Hulme V. Tenant . . 158, 258,
Humbertson v. Humbertson
Humble t\ Bowman
Hume v. Rundell . .
Humphery v. Humphery
Himiphrey v. Olver
Hunloke v. Gell . .
Himt, re
Himtingdon v. Huntingdon
Hurlstone v. Ashton
Hurst V. Hm-st
Hussey v. Berkeley
V. Dillon . .
Hutchins v. Hutcliins 204,
V. Osborne
Hutcbinson and Tenant, re
Hutton V. Anderson
r. Simpson
PAGE
.. 561
458, 459
.. 389
.. 537
.. 132
.. 167
ISO, 182
258, 337
207, 426
409, 429
259, 260
.. 316
.. 60
341, 343
.. 190
.. 414
.. 183
.. 249
.. 167
.. 234
16, 303
.. 494
.. 494
206, 425
.. 235
480, 505
., 370
.. 140
I.
Ickeringill, re
Hchester, Lord, ex parte
Ingram v. Ingi-am
Innes v. Sayer
Irvine v. Sullivan
Irwin V. Tarrer
V. Rogers
Isaac V. Defriez
V. Hugbes
Isherwood v. Oldknow
Ivy r. Gilbert
Jack V. Creed
Jackson' 8 Will, re . .
Jackson, re , .
Jackson v. Innes
■?'. Jackson
V. Noble
V. Parker
V. Rowe
James v. James
JeafFreson, re
Jebb V. Tugwell . .
Jee V. Audley
Jeffcock, re . .
Jefferys, re . .
V. Jefferys
V. Marshall
Jegon V. Vivian . .
Jenkins, re . ,
V. Jones
V. Quincbant
205
233, 239, 241
..393
311, 379, 441
181,231, 340
.. 481,485
8,177
..206
.. 510
.. 17
516, 610, 626,
629
..531
610
61
593
57,
Jeukinson v. Harcourt
Jenner v. Morris . .
Jenney v. Andrews
Jennings v. Bond . .
V. Moore
Jermyn ?'. Fellowes
Jesson V. Wright . .
Jessop V. Blake
Jewel's Case
Johnson v. Foulds
V. G-aUagher
■ V. Johnson
V. Kennett
■ V. Mounsey
Johnston v. Hill . .
Johnstone, re
V. Baber
Jones, ex parte (12 Ch,
, re (26 Ch. D.)
, re (34 Ch. D.)
V. Chappell
. V. Curry ,
V. Davies ,
V. Jones
. V. Morgan
V. Southall
V. Torin
• V. Tucker
V. Verney
V. Wenwood
Joyner v. Weeks
Joys, in b. . .
PAGE
..170
414,416,520
.. 302
..168
..357
..158
248, 299, 506
..292
295, 296, 315
8
.. 106,471
..336
..457
..605
..482
..550
..471
..540
.. 610,612
.. 254, 338
..339
..337
..499
57, 58
..38
. . 598, 629
..502
. . 257, 258
..121
. . 83
. . 34
..295
,. 219,220
..147
D.) .. 265
.. 112
7,215
..635
..230
.. 104, 169
..477
.. 399,539
221, 226, 269
..470
.. 180,230
.. 637,640
. . 22
..642
..212
TABLE OF CASES.
XXI
K.
Kampf V. Jonca . .
Kane, re
Kearslcy v. Woodcock
Keates v. Burtou . .
Keating v. Sxiarrow
Keeling v. Brown . .
Kelly V. Keily
Kekewicli v. Marker
Kcllett V. Kellett . .
Kelly, re . .
Kemp, re , ,
V. Kemp . .
Kerays-Tynte, re . .
Kennan v. Murphy
Kenuard v. Keuuard
Kennedy v. Kingston
Kennerley v. Kennerley
Kenrick v. Beauclerk
Kensington, Lord,
Ken worthy v. Bate
Keen, re
Keown, re , .
Kerr, re
Kershaw, re
Kettle V. Townsend
King, re
V. Bellord
V. King(l D. & J.)..
^,. (13L. R. Ir.)
. r. (15 Ir. Ch. R.)
V. Melling . .
Kingdon, ?v
Elinnoid, Lord, v. Money
Kirwan, re . .
• V. Kennedy
Knapman, re
Knapp V. Knapp . .
Knight, re . .
V. Knight . .
Knocker v. Bimbury
Knowles, re
Krantzeke v. Robinson
Laing v. Cowan
Lake v. Currie
PAGE
.. 301
.. G16
.. 25
.. 98
.. 314
77, 78
405, 432
.. 532
.. 228
.. 30
.. 43
.. 364
.. 607
. 331, 347
., 329
61, 471, 474
.. 493
..81
Bouverie . . 539,
540
.. 100,320
..381
.. 8,233, 234
.. 312
105
PAOE
Lakin v. Lakin 246
Lamb j;. Lamb .. .. •. 385
Lambe r. Eames 480, 483, 484, 492,
505
Lambert, re . . . . 122, 254
V. Rendle . . . . 454
V. Thwaitcs . . 472, 474
Lancashire v. Lancashire . . 655
Lancaster v. Thornton . . . . 69
Lancefield v. Igguldcn
Lander and Bagley, re
Landon, re . .
Lane v. Debenham
V. Page
.. 232
.. 639
, 25, 4G, 649
.. 452
.. 434
324
342
338
124
414
378
382
15
213
167
133, 232, 417
537
339
542
. 647
,. 478
50, 69
.. 43
.. 37
233, 256
227, 235
Langslow v. Langslow 196, 334, 382
Langston v. Blackmore . . . . 408
Langworthy v. Langworthy 39, 40
Lanoy v. Duke of Athol . . . . 402
Lansdowne v. Kehoe . . . . 635
— . V. Lansdowne . . 524
Lantsbery v. Collier .. 33, 112
Lascelles r. Cornwallis . . . . 255
Lassence v. Tiemey . . . . 301
Laurie v. Clutton . . . . . . 250
Lawlor v. Henderson . . 363, 505
Lawrence r. WaUis . . 221, 272
Lawrenson v. Butler . . . . 332
Lawrie v. Bankes . . . . 324, 404
Lawton, Doe d., v. Radcliffe . . 614
Lay V. Mottram . . . . • . 521
Leake v. Leake . . . . ■ ■ 402
Leaper v. Wroth 518
Lechmere i'. Charlton . . . . 402
!•. Lavie.. .. .. 482
Leclere r. Beaudry . . . . 21
Ledbrook v. Passman . . . . 565
Lee !-. Fci-nie .. .. 416,424
r. Head ..177,395,400,401
r. Lee 221,490
V. Olding 277
Leech v. Leech 534
Lees V. Lees . . 196, 367, 495
Lcfevre r. Freeland 238, 239, 244
Lcfroy v. Walsh 616
Leggott V. Ban-ett . . . . 590
Legh, ex parte 644
Leigh, re . . •• • • • • '*-l
. , Lord !■. Ashburton . . 21
■ V. Balcarres . . • • 143
xxu
TABLE OF CASES.
PAGE
Leigh r. Norbuiy . . . . 495
Lemage v. Goodban . . 211, 212
Lc Marchant v. Le Marchant . . 481
Lcmpriere v. Valpy . . 230, 231
Leslie v. Crommelin 347, 349, 618
r. Leslie
L' Estrange v. L' Estrange
Letchford, re
Lethbridge v. Thurlow .
Lewis V. Freke
V. Lewis . .
■ V. Llewellyn
V. Eees
Liddian, re . .
Liefe v. Saltingstone
Lightbody, re
Lightbown v. McMyn
Ligbtbume v. GiU
Lincoln, Lady, v. Pelham
Lindsay v. Lord Wicklow
Line v. Hall
Lisle V. Lisle
LittJe, re
V. Neil
211, 536
195, 201
.. 644
.. 524
. 535, 536
.. 378
.. 182
.. 516
.. 653
53, 100, 365
. 648, 654
,. 264
.. 64
499, 502
399, 540
310, 317
175, 272
.. 439
.. 471
.. 500
.. 376
.. 324
.. 374
289, 323
.. 348
.. 460
.. 632
.. 553
.. 46
144, 215
Livesey v. Livesey
Llewellyn v. Mackworth
Lloyd V. Cocker
V. Laver
V. Lloyd
Lock V. Furze
V. Loggin
V. Pearce
Loft, re
Lofthouse, re
Logan V. Bell
London Chartered Bank, &c. v.
Lcmpriere . . 55, 121, 257, 259
Londonderry, Lady, v. Wayne 521,
522, 524
Long, re . . . . . . • . 653
V. Long . . . . . . 320
V. Ovenden . . . . . . 304
V. Rankin . . 20, 337, 609
Longhead v. Phelps . . . . 297
Longmore v. Broom . . 470, 476
Lonsdale V. Beckett .. ..651
Loosemore v. Knapman . . . . 402
Lord V. Bunn . . . . 24, 25, 45
Lovat, Lord, v. Duchess of Leeds 524
Lovelace, re
LoveU V. Knight . .
Low V. Bouverie . .
Lowcock V. Broughton
Lowe V. Tnnes
V. Pennington
V. Swift
Lownds V. Lownds
Lowson V. Lowson
Lowther v. Bentinck
Lucas V. Brandreth
Lucena v. Lucena . .
Luddy V. Peard
LuttreU v. Olmius. .
Lyddon v. Lyddon
Lyne, re
PAGE
..282
.. 230,231
..656
Overseers 6
..642
..180
.. 357,610
..180
.. 329
..324
. . 74
.. 341,343
..565
. . 334, 344
..536
..253
M.
Macadam v. Logan
Macandrew v. Gallagher . .
MacCarogher v. Whieldon
MacCormick v. Grogan . .
MacCuUagh v. Littledale
Macdonald v. Macdonald
Macey i'. Shurmer . .
Maekay v. Douglas
Mackechnie v. Marjoribanks
Mackenizie, re
V. Mackenzie. .
Mackett v. Mackett
Mackinley v. Sison 107,
Mackintosh v. Barber
Macleod v. Jones . .
Macleroth v. Bacon
MacMyn, re
Macoubrey v. Jones
Macqucen V. Farquhar 413,
445, 556,
Mac Vicar, in b.
Madden v. Madden
Maddickt'. Marks.. 223,
Maddison v. Andrew 250,
Mahon v. Savage . .364, 478,
Main, re
Mainprice v. Pearson
Major V. "Ward
.. 159
.. 268
543, 554
.. 485
.. 167
298, 301,
433
.. 365
.. 255
.. 415
.. 556
8, 56, 243
.. 480
137, 231
.. 92
.. 551
.. 505
.. 263
.. 499
429, 430,
557, 558
., 216
.. 97
225, 235
464, 493
506, 509
.. 323
.. 116
.. 554
TABLE OF CASES.
XXlll
PAOE
Makings v. Makings . . . . 538
Malcom.son r. Malcomson . . . . 483
Maliin v. Kcighlcy . . . . 481
Malinesbury r. Malmesbury . . 143
Mandovillo v. Roe 2G8
Mann v. Thompson . . . . 490
Manscl, t-e . , . . . . 43, 44
Mansell v. Mansell 141, 453, 455
Maplcton v. Maplcton 36, 164, 366
Marjoribanks v. Hovcnden . , 173
Marker r. Kekewich . . . . 432
Marlborough, Duke of v. Godol-
phin 110,236,237,278,289,464
Marler v. Tommas. . . . . . 178
Marnell i>. Blake .. .. 199,321
Marsden, re . . 422, 426, 428
Marsh, re 225, 233
• V. Marsh . . . . . . 506
Marshall v. Baker 103
r. Crowther . . . . 537
V. Haddcn . . . . 550
t'. Holloway .. ..112
Marston v. Gowan . . .. 341,342
Martelli r. HoUoway . . . . 290
Martin v. Mitchell . . . . 172
Mason v. Mason . . . . . . 518
Massy v. Lloyd . . . . 532, 536
Master v. De Croismar . . . . 49
Matthews t'. Keble .. ..112
V. Paul 498
Mattingley's Trusts, >•<; .. ..179
Maudslay v. Maudslay . . . . 40
Maultby r. Maultby .. ..518
Maundrell v. Maundrell 38, 175, 629
Maunscll t'. Maunsell .. 188,190
Maxwell, re . . . . 62, 63
Mayd v. Field 257
Mayn i'. Mayn . . . . . . 529
Meade, re . , . . . . . . 49G
Meade-King v. Warren . . . . 105
Medley r. Horton . . . . 107, 108
Medwin v. Sandham . . 332, 6ii8
Meek r. Chamberlain .. .. 168
Meinertzhagen v. Da^-is . . 651, 653
Meluish !'. Milton 120
Mellor, re . , . . . . . . 459
Mennard r. Wclford . . . . 649
Meredith, re . . . . 249, 302
V. Heneage . . . . 480
FAOB
5
500
224
212
324
414
Meredith t'. Joans . .
V. Treffry
Meredyth v. Meredyth
Merritt, in b.
Mes.seena v. Carr . ,
Metcalfe, 7-e
V. Hutcliinson 324, 530, 531
Metham v. Duke of Dcvonsliire . . 489
..147
..501
. . 530, 532
..531
.. 595
..595
..334
..106
..298
22, 278, 471
..492
. . 252, 253
..605
..651
.. 176,232
89, 558, 559
..469
.. 517
70,461
191, 195, 200,
201, 373
103, 104, 106
..42
. . 522
. . 355, 612
.. 469
266, 591
.> 159
.. 122
.. 526
.. 85
.. 454
.. 274
.. 370
141, 455
614. 615
296, 316
.. 522
.. 342
.. 651
.. 350
Meyrick v. Coutts . .
V. Laws
Michell V. Michell . .
V. Wilton . .
Micholls V. Corbett
Middleton v. Dodswell
V. Middleton
Mildmay's Case
Miles V. Harford . .
Milcy r. Cape
Mill;'. Mill..
Miller v. Huddlestoue
V. Miller . ,
V. Priddon . .
Mills, re
v. Banks
V. Farmer
V. Mills
Milward v. Moore . .
Miuchiii V. Minchiu
Minton v. Ivirwood
Mitchelson v. Piper
Mitford V. Mitford
Jloffett r. Lord Gough .
Moggridge v. Thackwell .
Mogridge v. Clapp
Moir, re
Molony v. Kennedy
Molton, re ..
Molyucux & White, re .
Monscll V. Arm.'strong
Montagu v. Kater. .
Montague r. Montague .
Montefiore r. Browne
Montgomery v. Wemyss .
Monypenny v. Dering
t'. Monypenny
Moodio r. Reid
Moore, re . .
V. Clench , .
XXIV
TABLE OF CASES.
PAGE
Moore v. Dixon 254
V. Ffolliot 465
r. Moore 107
Moravian Society, re . . . . 649
Morgan, r« . . .. .. •• 192
V. Edwards . . . . 392
V. Gronow.. 196,208,210,
253, 292
V. Milman . . 334, 336, 347
V. Rutson 103
r. Surman . . . . . . 322
Moriarty v. Martin . . . . 382
Morley, re . . . . . . . . 539
Morrieson, re . . . . . . 527
Morris v. Debenham . . . . 554
• v. Howes .. .. .. 118
V. Livie . . . . • • 339
V. EhydydefedComeryCo.604,
637
Morse v. Martin . .292, 330, 341, 343
Mortimer v. Ireland . . . . 453
i;. West 316
Mortlock, re . . . . 65, 66
V. Buller. . 31, 268, 332, 548,
549
Morton & Hallett, re .. ..453
Mosley v. Hide . . . . . . 147
V. Mosley . . . . 512, 513
. r. Ward 377
Moss, re . . . . . . . . 653
V. Harter 222
Mountjoy's Case .. .. 601,625
Mower v. Orr . , . . 73, 74
Moynan v. Moynan , . . . 375
Mumby v. Koss . . . . 146, 300
Muskerry v. Cliinnery . . 321, 610
Mussoorie Bank v. Eaynor 480, 482
N.
Nagle, re . .
NaU V. Punter
Nanney v. Williams
Nannock v. Horton
Nantes v. Corrock . .
Napier v. Napier . .
Nash, re
361
261
215
53
260
182
431, 515
Naylor v. Amott . .
Neatherway v. Fry
Neave, re . ,
Nedby v. Nedby , .
Neeves v. Burrage
Nelson v. Callow . .
V. Robins . .
Nesbitt, re . .
Nevill, re . .
Newcastle, Duke of, re
Newill V. Newill . .
Newman «>. Piercey
V. Warner
Newnbam, Doe d., v. Creed
PAGE
.. 595, 596
..497
..131
.. 8
..43
.. 113
..523
..652
..452
..589
..491
..491
140, 319, 445
624
256
492
70
Newsom, re
Newton v. Bennet. .
■ V. Metropolitan Railway
Company
V. Ricketts
Nicbols to Nixey . .
V. Haviland
Nicholson V. Smith
Nickisson v. Cockill
Nixon V. Cameron
Noble V. Cass
V. Meymott . .
V. Phelps
«». Willock . .
Noble tt V. Litchfield
Noel V. Henley
r. Lord Walsingham
V. Noel
Norcott, re . .
Norman v. Norman
Norris, re , .
V. Frazer . .
Norton v. Johnstone
Nottidge V. Green. .
Nowlan v. Walsh . .
Nugent V. Cuthbcrt
V. Nugent
O.
Oakley v. Monck
O'Brien, re . .
.. 94
.. 136
.. 450
.. 237
.. 648
.. 43
74, 77
.. 642
.. 648
.. 119
119, 121
.. 401
15, 24
397, 400,
408
..389
..367
..496
648, 649, 654
..485
.. 112
. . 24
..63
..636
..194
358
608
TABLE OF CASES.
XXV
Occleston v. Fullalovo
Oceanic, &c. Navigation
pany v. Suthcrberry
O'Fay V. Burko . .
OfFen V. Hannaa . .
Offley t'. Offley . .
Oke V. Heath
Okeden v. Okcden , .
Old, re
Omerod v. Hardman
Onions r. Tyrcr
Onslow, re . ,
V. Mitchell . .
Oppenhcim v. Oppeiiheim
Opy V. Thomasius. .
Orange r. Pickford
Orby V. Mohun
Ord V. Noel..
Orde, re
O'Reilly v. Alderson
Orme's Case
Orrell v. Orrell
Otter V. Vaux
Otway-Cave v. Otway
Outon V. Weeks . .
Outram v. Hyde . .
Owens V. Dickenson
Oxford, Bishop of
PAGE
.. 489
Com-
. . 55 1
.. 357
138, 44G
.. 532
.. 218
,. 533
.. 224
37, 164
.. 210
19, 55
.. 402
333,
Padbuiy r. Clark . .
Page V. Cooper
V. Loapingwell
V. Soper
V. Way
Paglar v. Tongue . .
Paine, re . .
Palairet v. Carew . .
Palk V. Lord Clinton
Palliser v. Giimcy. .
Palmer, re . .
t'. Graves . .
V. Locke . .
V. Newell . .
• V. Simmonds
V. Wheeler
40
611
174
014
554
648
649
5
393
564
535
7
262
258, 259, 263
Leigh ton . . 48,
272
390, 392
560
251
55
25
119
653
656
37
265
360
76
16,81,408
.. 214
481, 482
414, 431
257
Palmer v. Whitmoro
Palsgrave v. Atkinson
Pares v. Pares
Parfitt V. Herabcr . .
Parker v. Parker . .
V. Taswell . .
V. Tootal . .
Parkin, re . .
Parkinson v. Hanbury
Parnall v. Pamall . .
Parnell, in h.
V. Lyon
Parry and Daggs, re
Parsons v. Parsons
Paske V. Haselfoot
Patch V. Shore
Patman v. Hurland
Patterson v. Wooler
Pattison v. Pattison
Patton V. Randall , ,
Paul V. Compton . .
V. Hewetson . .
V. Paul
Payne v. Haine
Peachy v. Duke of Somerset
Peacock v. Colling. .
V. Monk . ,
Peacocke v. Pares . .
Peake v. Penlington
Pearce v. Gardner . .
Peard v. Kekewich
Peareth ;■. Greenwood
V. Marriott
Pearks v. Moscley . .
Pearse v. Baron
Pearson v. Benson. .
V. Hclliwell
Pedrotti, re
PengeUey v. Herbert
Pcnne v. Peacock . .
Peunefather v. Pcnnefather
Pennington v. Payne
Penuock v. Pennock
Penny r. Turner . .
Peover v. Hassel . .
Peppercorn c. Wayman
Percy, re
Perkins, re
Pcrrin, re . ,
PAGE
,
278
.
299
411
, Jl^
316
318
593
.
114
264
, 409
150
.
482
446
.
142
65
28
, 160
163
222
357
414
471
,
72
490
62
,
41
,
641
343
652
116
501
544
160
287
534
523
291
528
, 596
.
450
530
,
54
224
9
193
, 201
8
8, 89
53
471
, 475
104
90
65
299
, 433
,
345
XXVI
TABLE OF CASES.
Perry r. Whitehead
Peters v. Lewes E,. Co.
Petre v. Petre
Pettinger v. Ambler
Peyton, re , .
Phene, re ,,
Philbrick, re
Philips V. Pennefather
Phillips r. Brydon . ,
V. Cayley . .
■ V. Gutteridge
• V. JenMns . .
Phipps V. Lovegrove
Phipson V. Turner. .
Pickersgill v. Rodger
PicMes V. Pickles . .
Pidgely v. Pidgely
Piercy v. Roberts . .
Pierson v. Garnet . .
Pigg V. Clarke
Pigott V. Pigott . .
Pike V. Fitzgibbon. .
PAGE
.. 342
.. 34
•250, 2.52
211, 223
553
507
325
415
324
233
530
120
655
292, 322
379, 383, 388
410
185
25
464
505
167
257, 264, 386
Pinede, re . . 233, 237, 238, 243, 244
Pumey w. Hart 120
Piper r. Piper . . . . . . 271
Pitt'. Pelham 71
Pitt V. Jackson . . 212, 316, 397
1-. Pitt 167
Piatt V. Routh . . 278, 279, 280
Plomley v. Felton 167
Plowden v. Gayford . . 19, 55
Plymouth v. Archer . , , . 603
Pocock V. Att.-Gen. . . 465, 468
Pole V. De la Pole 642
Pollard V. Green vU . . . . 615
Pomery v. Partington . . . . 601
Pomfret V. Perring .. 209,214
Pooley's Trustee v. Whetham . . 551
Poor V. Mial 394
Pope V. Whitcombe . . 505, 508
Porter, re (45 Ch. D.) . . . . 185
. (63L. T.) .. .. 191
Portland, Duke of, v. Topham , . 404
Potts V. Britton 160
Poulson V. Wellington . . . . 177
Pounder, re.. ., .. ..53
Powell, re 7, 286
Prentice v. Prentice . . . . 555
Prescott V. Edmunds . . . . 379
PAQB
Preston v. Preston. .
.. 404
Price, 7-e
.. 157
V. Asshoton . .
.. 623
V. North
.. 76
V. Parker
.. 156
r. Price
.. 185
Pride, re . .
.. 539
V. Fooks
.. 37
Probert v. Morgan
.. 621
Proby V. Landor . .
174, 191
Proctor V. Bishop of Bath & Wells 296
Proudfoot V. Hart . .
.. 641
Pruen r. Osborne . .
.. 495
Pry or r. Pryor
.. 418
Piyse, re ..
.. 361
Pugh V. Duke of Leeds ,
.. 616
Purcell V. Purcell . .
525, 536
Pusey V. Desbouvrie
.. 390
Pye, cxp
.. 394
Pyot V. Pyot
.. 506
Q.
Queade, re . .
Quested v. Michell
Quinn v. Butler . .
R.
RadcUffe, re (1891, 1 Ch
re (7 Ch. D.)
Raikes v. Raikes , .
Ranking v. Barnes
Ratcliffe v. Hampson
Raw, re
Rawlins, re . .
V. Richards
Rawly n's Case
Read v. Gooding . .
V. Nasho
V. Shaw
Reade v. Reade
Rede v. Oakes
Redington v. Redington
Rees V. George
Reeves v. Baker . .
.. 386
51, 52
209, 210
16,438
.. 44
.. 655
366, 437
.. 248
.. 548
.. 620
.. 211
.. 355
.. 298
48, 612, 619
.. 553
.. 162
.. 564
.. 540
.. 370
479, 484
TABLE OF CASES.
XXVll
PAGE
Reid V. Atkinson . . 54, 480, 485
V. Hoarc 501
V. Reiil (25 B.) CI, 181, 190, 309,
316,372,416
t.. (31 ChD.) .. ..123
V. Shergold . .131, 173, 216, 332
Eeith V. Seymour . , . . 53, 178
Remnant v. Hood . . . . . . 543
Reresby v. Newland . , 28, 533
R. V. Bird 444
— V. Inhabitants of Eatington . . 68
— V. Lord Stafford
— V. Monday
— V. Varlo. .
— V. "Wilson
Reynolds v. Meyrick
Rhodes r. Cook
. V. Jenkins . .
Rich V. Cockell
Richardson, re
■ V. Chapman
r. Gifford
V. Harrison
Ricketts v. Bell
V. Lewis . .
r. Loftus . .
Ridge, re . .
Ridgway v. Woodliouse
Ridley, re . .
Roach V. Trood
-v. Wadham
Roake v. Denn
Roberts, re .,
. V. Dixall . .
V. Dixwell
. . V. Tunstall
Robertson v. Walker
Robins, re . .
Robinson v. Briggs
v. Dickenson
V. Dusgato
V. Hardcastle
V. Lovrater
• v. Ommanncy
v. Pickering
• V. Sykes . .
V. "Wood , .
Robson V. Flight . .
Roche, re . .
100
..444
..444
..09
.. 515, 536
..429
43,44
..393
.. 101
..464
..357
..56,107,471
..598
..447
..321
..604
..303
..294
299, 404, 421
..267
. . 176, 227
..293
..395
. . 300, 320
..415
.. 143,629
..523
..550
. . 39
..67
.. 305, 309
80,81
..409
..263
. . 192, 363
..302
357, 444, 461
.. 650
Roddy V. Fitzgerald
Rodgers v. Marshall
Roe V. Archbishop of York
— V. Dunt
— V. Pogson
— V. Prideaux . .
— V. Rawlings . .
Rogers, Doc d., v. Rogers
V. Humphreys
V. Jones
V. Rice
Rooke V. Rooke
Roper, »r (11 Ch. D.)
, re (39 Ch. D.)
V. Hallifax
V. Roper . .
Roper-Curzon v. Roper-Curzon.
Roscommon r. Fowke
Rosher, re , .
Ross V. Ewer
Rous V. Jackson . .
Routlcdge V. Dorril 296
Rowel t'. "Walley . .
Rowley v. Rowley . .
Rucker v. Scholefield
Ruding, re . .
Ruscombe v. Hare . .
Rushout V. Rushout
Russell V. Plaice . .
Rutland v. Wythe
Ryan and Cavanagh, re
S.
Saber ton v. Skeels . .
Sabin v. Heape
SackviLle-Wcst v. Lord
dale
Sadler r. Pratt
!'. Rickards . .
Sadlier r. Butler . .
Sale I'. Moore
Salmon v. Gibbs . .
Saloway r. Strawbridge
Saltonliall's Case . .
Salusbury v. Denton
PAGE
68, 59, 408
.. 343
616, 622
.. 162
321, 535
609, 617
.. 624
.. 623
..628
.. 384
.. 6:jl
. . 180,299
..46
243, 261, 264
..27
..491
323
..266
. . 34
134, 136
..287
304, 305,315
..169
.. 406,427,
432, 433, 436
301, 313, 370
224, 225
.. 165
.. 385
.. 447
625, 626
.. 85
.. 56
85, 93, 461
Holmes-
528, 530
298, 312
.. 524
.. 377
.. 482
.. 417
.. 454
.. 100
464, 469, 477
XXVIU
TABLE OF CASES.
Sampson and Wall, re
Samuel v. "Ward . .
Sandeman r. Mackenzie
Sander's Case
Sanders v. Eichards
Sands v. Nugee
Sand-n-icli's Case, Lord
Sandys v. Sandys . .
Sankey r. Alexander
Saul V. Pattinson . .
Saunders v. Garden
. V. Evans . .
. V. Vautier
Savage v. Carroll . .
Savile v. Couper . .
SaxiU. V. Sa^dU
Saville v. Blackett, .
Saward v. Macdonnell
Sayer, re
V. Sayer
Scarth, re ..
Scholefield v. Lockwood
Schrcder v. Schroder
Scotney v. Lomer . .
Scott r. Josselyn . .
V. Steward . .
Scriven v. Sandom . ,
Scroggs r. Scroggs
Seatle v. Seatle
Seaton v. Seaton . .
Selby V. Cooling . .
Selwyn v. Garfit . .
V. Selwyn . .
Sergison v. Sealey . ,
Shafto, re . ,
Shakespear, re
Shallcross v. Einden
Shannon v. Bradstreet
347
Sharp v. Sharp
Sharshaw v. Gibbs
Shattock f. Shattock
Shaw, re
V. Borrer
V. Jones-Ford
Sheehy v. Muskerry
Sheffield v. Coventry
V. Von Donop
Shelf ord v. Ackland
PAGE
.. 421
396, 397
502
603
447
651
406
515
549
12
188, 198
272, 273, 274
. . 34
.. 499,529
.. 652
..377
.. 18
..187
.. 295
.. 336
..605
..538
..384
.. 326
..53
.. 546,596
..225
..426
..40
..421
..449
.. 150,551
..155
. . 337, 342
..048
.. 265
..76
.. 333,346,
, 519, 622, 642
..647
..537
..261
.. 596
79,147
53, 65
.. 608,610
..49
..274
..231
Shrewsbury
Greaves . .
PAGE
Shelley's Case . . 50, 56, 58, 288
Shepheard v. Betham . . . . 613
Sheppard r. Wilson . . . . 535
Sherratt v. Mountford . . . . 494
Shiel V. O'Brien 212
Sbipway v. Ball 125
Shirley r. Fisher 411
V. Lord Ferrers . . . . 255
Shore v. Shore . . . . . . 537
Shove V. Pincke 268
Shovelton t^. Shovelton .. ..481
Shrewsbury, Lord, v. Hope Scott 148
. r. Keightley. . 101
Shrewsbury, Doe cL, Lord, v.
Wilson . . . . 600, 625, 626, 632
Shrewsbury v. Shrewsbury (1 Ves.
399, 531, 639, 540
(18
556, 642
.. 231
..495
..527
..338
42, 45
..543
..21
513, 535, 536
36, 164
..492
32, 269, 501
..228
467, 475, 506
..654
404, 421, 431
.. 257
..632
..291
115, 292, 311
..58
. . 28
..123
..103
.. 157
.. 158
..653
.. 136, 174
.. 341, 343
..298
jun.)
Shrewsbury v.
Jur.)
Shuttleworth v
Sibley v. Perry
Sidney r. Sidney . .
Silk V. Prime
Silliboume v. Newport
Simmons v. Pitt
Simpson v. Bathurst
V. O'Sullivan
V. Paul . .
Sinclaire, re
Sing V. Leslie
Singleton v. Tomlinson
Sinnott v. Walsh . .
Skeats, re . .
Skclton V. Flanagan
Skiuuer v. Todd . .
Skinners' Co. v. Knight
Slark, re
V. Dakyns . .
Slater r. Dangei-field
Sleeman v. McGrath
Smart v. Tranter . .
Smith, re (45 L. T.)
. , re (38 Ch. D.)
, re (63 L. T.)
, re (20 W. R.)
V. Adkins . .
V. Baker
V. Benco
V. Camelford, Lord 397, 408, 493
TABLE OF CASES.
XXIX
Smith V. Campbell
V. Death
t'. Houblon..
V. Lord Jersey
V. Lucas
f. Plummer
r. Smith (5 Ch..
V. Smith (19 Ch. D
V. Wheeler . .
V. "Widlake . .
Smiu-thwaite, re
Smyth V. Darley , .
V. Lord Foley
Sneed v. Sneed
Snow V. Teed
Snowdon v. Dales , .
Sondes, re . .
Sop with V. Maugham
Sotheran v. Denning
Southampton r. Hertford
Southouse v. Bate . .
Spalding v. Shalmer
Spencer, re ..
V. Scurr . .
Spooner, re . .
Spoor V. Green
Sprague, re
Spread v. Morgan . .
Spring V. Biles
Springett v. Jenings
Squire v. Campbell
Stacey v. Elph
Stacpoole v. Stacpoole
Stafford, Earl of v. Buckley
Stamford v. Omly . .
Standen v. Standen
Standley, re
Stansfield v. Hallam
Stead V. Clay
V. Mellor
Stephens v. Gadsden
Stevenson v. Masson
Stewart v. Lord Donegal
V. Stewart . .
Stiles V. Cowper . ,
Stillman t'. Wecdon
Stockbridge v. Story 29-1,
Stogdon V. Lee
Stokes, re , ,
PAGE
508
16
17
438
G32,
C33
384
386
IG
438
291
53
, .
450
. ,
351
651
444
532
330
606
25
301
392
213
112
54, G7 1
, .
98
644
G04
228
2G7
278,
471
, ,
390
365
485
, ,
590
92
315,
316
2
348
230
487
. .
167
258
482
, .
301
543
17,
530
370
334,
347
222
311,
442
265
••
652
PAGE
Stokes V. Bridgman . . . , 252
Stolworthy v. Sancroft 363, 468, 473
Stone, re . . . . . . 30, 373
Stones V. Rowton . , . . . . 648
Storrs V. Benbow . . . . . . 291
Storry v. Walsh 14
Stoughton V. Leigh . . . . 603
Stratford v. Powell . . . . 390
Streatfield v. Streatfield . . 376, 385
Stroud V. Xorman . , . , 290, 300
Strougill V. Anstcy 82, 85, 89, 161, 559
Strutt V. Braithwaite .. 100, 363
Stuart r. Babington
V. Castlestuart, Lord
• r. Cockerell
V. Norton . .
Sugden v. Crossland
Surman v. Wharton
Susanni, re , ,
Sussex, Lady, v. Wroth
, 287
, 416
..293
..443
.. 656
.. 123
475, 493, 50G
..618
Sutherland, Lady, v. Northmore.. 144
Sutton V. Sutton . .
, Doe d., r. Harvey
91,462
618, 625
355, 631
.. 414
.. 278
.. 391
.. 246
.. 364
106, 495
.. 39
Swain v. Ayres
Swan, re
Sweetapple v. Horlock
Swcetman v. Sweetman
Sweto V. Tindall , .
Swift V. Gregson . .
V. Swift
r. Wenman . .
Swinburne, re.. 185, 198, 302, 320, 378
Sykes V. Sheard .. ., 456,457
V. Sykes 114
Sympson v. Hornby . . . . 140
Synge v. Synge 388
T.
T.,re
131
Tabor v. Brooks
46
Tait i'. Lathbury . .
49,
546
Taite v. Swinstead
33
Talbot V. Marshfield
45.
324
Tankerdllo v. Wingfield . .
628,
633
TankervUle, Lord, v.
Coke
626
Tanner v. Elworthy
389
XXX
TABLE OF CASES.
Tanqucray-Willamne, re
Tapncr v. Merlott , .
Tasker v. Small . .
TatnaUf. Hankcy..
Taylor, re (58 L. T.)
V. Horde . .
■ 1". Meads . .
V. Miles
• V. Mostyn ' . .
r. Stibbert . .
V. Taylor , .
Teague, re , .
Teape, re . .
Tegg, re
Tempest, re . ,
■ V.
Lord Camoys
Ch. D.) ..
V. Lord Camoys
L. T.)
PAGE
.. 6, 78, 79,
81, 84, 85
. . 50
106, 154, 545
. . 119, 133
..157
..638
120, 121, 174
..102
..608
.. 350,516
76,531
.. 295
183, 185, 389
..46
..653
(21
43
(58
654
556
211
112
Tennant, re. ,
Tenney, re , ,
Tewart v. Lawson. .
Teynham, Lord, v. Webb 498, 499, 502
Thacker v. Key , . 13, 330, 408
Thackwell v. Gardiner ". . . . 330
Thack-ftTay & Young, re , , . , 81
Tharp, re 120
Thatcher, re 297
Theed, re 500
Thomas v. BritneU . . . . 76
• V. Dering . . , . , . 655
V. Howell 509
V. Jones . .154, 155, 225, 226
■ V. Thomas. . . . . , 365
V. Williams . . . . 650
Thompson & Holt, 7-e . , . . 554
Thompson v. Simpson (50 L. J.) 220,
225
V. Simpson (1 D. & W.) 417
.. 489
.. 522
91, 462
.. 53
., 62
.. 295, 319
..185
.. 480,483
. 453, 560, 561
. V. Thomas
. V. Thompson
. V. Todd . .
Thomson, re
Thorley, Doe d., v. Thorley
Thornton v. Bright
■ V. Thornton
Thorp V. Owen
Thurlow V. Mackeson
PAGE
Thurston, re . . 233, 238, 239, 256
Thwaytes v. Dye 320
Tillott, re 656
Tippet V. Eyres 202
Titley v. Wolstenholme . . . . 463
ToUet V. Toilet . . . . 333, 341
Tolson r. Sheard .. .. 554,698
Tomkyns v. Blane , . . . 301, 379
Tomlinson, re . . . . . . 120
. V. Dighton . . 17, 60, 99,
267, 365
Tompson v. Browne . . . . 173
Topham v. Duke of Portland . . 203,
207, 414, 422, 424, 425,
427, 428,432, 437
Townsend v. Wilson . . . . 453
Townshend v. Windham . . . . 255
Travel's Case .116
Travis v. Illingworth , . 648, 649
Trevor v. Trevor . , . . 623, 524
TrimmeU r. FeU . . . . 56, 156
TroUope v. Linton. . . . 188, 320
V. Eoutledge . . 252, 254
Troutbeck r. Boughey . . . . 121
Trower v. Butts 490
V. Knightley . . . . 33
Truell V. Tysson . . . . 152, 520
Truscott V. Diamond Rockboring
Co 641
Tucker v. Tucker , . . . . . 419
Tudor '('. Anson . . , . . , 342
Tugman v. Hopkins . . . . 122
Tullett v. Armstrong . . 122, 256
Tunno, re 249
Tunstall, >-e 051
Tupper V. Tupper 210
TurnbuU v. Forman . . . . 264
Tumor, re , , . . . . . . 419
V. Bryans . . . . . . 365
t'. Harvey . . . . . . 550
r. Mullincux . . . . 524
V. Sargent . . . . 545, 546
V. Turner , . . . . . 44
Turvin v. Newcome . . . . 113
Tweedale v. Tweedale . . 142, 470
Tweedie, re.. .. .. ,.34
Twisden v. Twisden . . . . 402
Twiss, re 159, 160
Tylden v. Hyde 72
TABLE OF CASES.
XXXI
Tyrconnel, Lord, v. Duke of An-
caster .. .. 522,524,526
Tyrrell v. Marsh . .
21
U.
Uvedale v. TJvedale
Uxbridge v. Bayly
118
512
Vallance, re
Vanderplank v. King
Vanderzee r. Aclom
VanHagan, »r ..237,238,
Vane r. Dungannon, Lord
. V. Fletcher . .
. V. Rigden
Vardon, re . .
Varlo V. Faden
Vaughan v. Vanderstegen
Veale, re . . . . H^;
Venables v. Morris
Venour, re . .
Vernon's Case
Vernon v. Lord Egmont . .
Verschoyle, re
Versturme v. Gardiner . .
Vibart v. Coles
Vincent v. Bishop of Sodor
Man . .
. V. Lee
Viner V. Vaughan . .
Vivian v. Jegon . .
Vizard, re . . . . 24, 242
Von Brockdorff v. Malcolm
Voss, re
.. 134
.. 317
.. 474
240, 245
413, 428
.. 335
.. 447
.. 384
.. 112
261, 262
363, 365
.. 288
.. 91
. . 34.5
.. 348
.. 149
.. 36
.. 44
and
135, 136
.. 456
.. 603
.. 607
, 276, 278
186, 326
.. 121
W.
Waker v. Wakeman
Walker, re
& Hughes, re
. V. Armstrong
V. Mackic . .
V. SmaUwood
V. Walker..
Wall V. WaU
Wallace v. Anderson
Wallinger v. Wallinger .
Wallis V. Freestone
Walraesly r. Buttcrworth
Walmsley v. Vaughan
Walpolo V. Apthorp
— V. Lord Conway.
Wace V. ]\Iallard
Wade V. Paget
Wait, re
.. 481
267, 343
.. 182
PAGE
.. 601
39, 627
.. 647
221, 270
182, 232
.. 42
.. 524
.. 386
.. 25
302, 381
.. 113
.. 21
.. 368
.. 251
.. 396
Walsh, re 145, 176, 195, 332, 343, 375
— r, Wallinger
Walter v. Maunde. .
Wandcsforde v. Carrick
Wankford v. Wankford
Want V. Stallibrass
Warburton v. Fam
. . V. Sandys
Ward, re
V. Baugh . .
V. Devon . .
i;. Grey
V. Hartpole
r. LenthaU
V, Tyrrell . .
War do V. Dixon . .
Ware, re
V. PoUiiU . .
Wareham v. Brown
Waring v. Coventry
V. Lee
Wameford v. Thompson
Warner's S. E., re
Warner v. Jacob . .
Warren, re . ,
V. Davics . .
r. Postlothwaite
V. RudaU . .
Wasse V. Heslington
Watkin v. Cheek . .
Watkins r. Williams
Watson V. Young . .
Watt V. Creyke . .
Watts, re . .
62, 467
476, 507, 548
. . 144, 502
..94
..1-17
. . 20
, . 655
..37
..386
..71
..492
.. 191
..275
45, 203, 364
.. 407,430
.. 1G3
.. Ill
70, 321
111, 112, 538
137
.. 494
2
.. 283
.. 550
383, 496
.. 78
140, 254
.. 381
77, 78
.. 82
.. 65
.. 297
.. 299
.. 650
XXXll
TABLE OF CASES.
"Watts V. Bullas
Weale v. Ollive
Webb r. Honnor
r. Lodsam
V. Sadler
V. Shaftesbury, Lord
V. Wools
Webster v. Boddington .
• • V. Le Hunt
PAGE
..342
54, 67
..179
.. 547
56, 290, 294, 299,
303,31], 322, 442
.. 42
.. 480
37, 164
.. 656
45, 422
.. 215
. . 522
.. 12
..406,
Weir V. Chamley . .
Welch V. Colt
Weldon V. Bradshaw
Weller v. Ker
Wellesley v. Lord Mornington
423, 426
■ v. Wellesley . . . . 521
Wells, re . . 159, 214, 222, 226, 227
V. WeUs 494
West V. Berney . . . . 11, 16
V. Ray . . . . . . 174
— V. Turner
West of England Bank v
Whaley v. INIorgan
Wheate v. Hall . .
Wheatley, 're
Wheeler v. Howell
t'. Warner
Wheelwright v. Walker
Whelan v. Palmer . .
Whistler, re
• f. Webster . .
Whitaker, re
V. Kershaw
Whitbread v. Smith
Whitby V. Hightou
V. Mitchell
White, re
V. Briggs . .
■ V. Ellis
V. Grane . .
V. Macdermott
■ V. Randolph
T. St. Barbe
V. White . .
• v. Wilson . .
Whitfield V. Benet . .
Whitlock's Case
Whitmarsh v. Robertson
.. 30
Murch 88
.. 533
32, 545
377, 384
.. 50
141, 142, 469
.. 43
.. 435
377, 388, 390
.. 157
.. 265
168, 537
.. 157
. . 286, 294, 295
467, 470, 475, 507
..505
.. 656
46,289
.. 459
.. 215
.. 420
.. 378
370, 447
.. 604
609, 627
24, 414
Whyte, re , ,
Wicherley's Case . ,
Wickham v. Wing
Widdowson r. Duck
Widmore v. Woodroffe
Wigney v. Wigney
WigseU V. Smith . .
Wilbraham v. Scarisbrick
Wilcock, re. .
Wilcocks' Settlement,
Wild's Case
Wilday v. Barnett. .
Wildbore v. Gregory
Wiles v. Gresham . .
Wilkes r. Holmes . .
Wilkie V. Holmes . .
Wilkin s v. Pryer . .
Wilkinson, 7~e
V. Adam
V. Dent
r. Duncan
• V. Nelson
PAGK
.. 539
.. 412
29, 30
.. 42
.. 509
40, 41
.. 108
.. 500
.. 646
.. 65
.. 491
233, 234
.. 189
., 131
.. 335
.. 343
.. 213
234, 360
.. 487
.. 390
288, 296
.. 367
V. Schneider, 228, 238, 243,
248
V. Theobald
Williams, ex parte . .
re (4 K. & J.)
re (42 Ch. D.)
■ V. Carter
V. Lomas
V. Mayne
V. Mitchell
V. Tcale . ,
V. Williams
Williamson v. Far well
Willis V. Kymcr . ,
V. Shorral , .
Willock V. Noble . .
Willoughby v. Middleton
.. 149
.. 60
46, 649
.. 233
.. 546
254, 338
.. 386
7, 233
.. 293
481, 484
304, 311, 442
.. 323
.. 11
.. 156
.. 377
Willoughby -Osborne v. Holyoake 239,
241, 243
Willway, re
Wilson, re . .
V. Duguid .
V. HallUey,
V. Kcnrick
V. Piggott ,
V. Sewell
361
88,89
. 465, 468, 472, 507
631
2.52,366,511
. 36, 164, 177, 199,
201, 363, 366, 368
.. 564,616
TABLE OF CASES.
XXXIU
PAGE
Wilson r. Thombury . . . . 391
V. Townshcnd . . . . 385
r. Wilson (17 W. E.) . . 301
r. Wilson (21 B.) . . 322, 325
Winch V. Brutton 480
Windu8 V. Windus . . . . 228
Winn V. Fonwick . . . . 473, 475
Winter v, Loveday , . . . 602
i\ Rudge . . . . . . 048
Wintour v. Clifton . . . . 389
Wisden V. Wisdcn. . .. .. 77
Wise V. Piper 545
Witliam V. Bland . . . . 272, 27o
Witliington v. Withingtou . , 649
Witts V. Boddington . . . . 408
Wollaston v. King. .292, 322, 380, 383
Wolley V. Jenkins . , . . . . 32
WombweU v. Hanrott . . . . 368
Wood V. Cox 485
V. Patterson 595
V. White .. ..33,49,113
V. Wood (10 Eq.) .. 104,119
r. Wood(7B.) .. ..167
V. Wood (4 Eq.) . . . . 499
Woodcock V. Renneck . . . . 163
Woodgate, re 649
Woodleys, re ,. . . 378, 529
Woods V. Woods 483
Woolridge v. WooWdge . . 301, 382
Woolwich Building Society, re . . 548
Worger, Doe d. v. Haddon . . 175
Workman v. Petgrave . . . . 182
WorraU r. Jacob 271
Worthington, inb. .. . . 216
V. Wiginton .. 392
WveioTi, Ex parte 26
Wrey, re . .
Wright, re . .
r. Atkyns .
V. Cadogan
V. Davies .
V. Goflf
PAOE
.. 137
17, 27
.. 484
.. 117
.. 642
420, 421
— V. Wakeford, 136, 139, 140, 319
V. Wright . .
Wrigley v. Sykes . .
Wyatt, re . .
Vijnch, ex 2yarte
Wykham v. Wykham
Wylly, re
Wyndham's Ti'usts, re
Wyndham v. Fane
, Doe d. V. Halcombe
Wynn, re . .
Wynne v. Hawkins
Wynter v. Bold
. 122
82, 85
656
57
99
275
56
501
Oil
361
482
533
Y.
Yalden, re . .
Yates V. Compton . .
Yelland v. FicUs . .
YeUowly v. Gower
Yglesias v. Yglesias
Yonge V. Furse
Young V. Roberts . .
r. Lord Waterpark
. . 65
..96
.. 516
628, 629, 030
..40
..141
.. 17
366, 536
Zetland, Earl of, r. Lord Advocate 282
Zouch V. Parsons . . . . . . 616
V. Woolston . . 36, 164, 518
XXXV
INDEX TO STATUTES.
— ♦ —
PAOE
13 Edw. I. c. 1 (Estates Tail— De Donis) 162
c. 34 (Dower) 39
10 Hen. VII. c. 22, Irish (Poyning's Act) 4G2
21 Hen. VIII. c. 4 (Renunciation by Executors) 88, 89, 90, 91, 97, 4G2
27 Hen. VIII. c. 10 (Statute of Uses)....l, 2, 3, 4, 6, 6, 38, 123, 139, 175, 319,
345, 445, 557
32 Hen. VIII. c. 1 (Statute of Devises) 9, 96, 345
c. 28 (Leases by Limited Owners) 344
I Eliz. c. 19 (Leases by Bishops) 598
13 Eliz. c. 5 (Fraudulent Conveyances) 255
27 Eliz. 0. 4 (Voluntary Conveyances) 255
43 Eliz. c. 4 (Charitable Uses) 340
12 Car. II. c. 24 (Guardianship of Infants) 446
22 & 23 Car. II. c. 10 (Statute of Distributions) 216, 507, 609
29 Car. II. c. 3 (Statute of Frauds) 174, 334
30 Car. II. st. 2 (Parliamentary Oaths) 148
11 & 12 Will. III. c. 4 (Popery) 148
4 Geo. II. c. 28 (Landlord and Tenant) 633
S.6 617
9 Geo. II. 0. 36 (Statute of Mortmain) 340
36 Geo. III. 0. 52 (Legacy Duties) 7
S.7 279,280
B.18 281
39 & 40 Geo. III. c. 98 (Thellusson Act) 112, 543
42 Geo. III. c. 116 (Redemption of Land Tax) 563
54 Geo. III. c. 168 (Attestation of Deeds) 136
55 Geo. III. c. 184 (Probate Duty) 278
II Geo. IV. & 1 Will. IV. c. 46 (Illusory Appointment). .162, 163, 372, 373, 374
c. 65 (Infants' Leases) 591, 643, 644
3 & 4 Will. IV. c. 27 (Statute of Limitations) 264, 538, 541
c. 74 (Fines and Recoveries) 17, 18, 118
8.32 141,455
8.77 18.117
8.78 18,19,117
c. 104 (Assets) 151
0. 105 (Dower) 527
0. 106 (Descent) 393
c2
XXXVl INDEX TO STATUTES.
PAGE
4 & Will. IV. c. 22 (Apportionment Act) 525
c. 92 (Pines and Recoveries, Ireland), s. 68 o 18
s. 69 19
5 & 6 Will. IV. 0. 54 (Marriage) 39
1 Vict. c. 26 (Wills Act) ....48, 99, 129, 137, 155, 156, 176, 182, 212, 213, 214,
246, 388, 493
S.7 125
8. 9 330
s. 10 131, 132, 135, 173, 174, 330
s. 18 215
8.23 217, 225
s. 24 159, 221, 222, 223, 224, 226, 227, 228, 229, 232
8. 26 245, 246
8. 27 7, 8, 215, 222, 223, 224, 226, 227, 228, 229, 233, 235
s. 29 114
8. 33 226, 236
1 & 2 Vict. c. 110 (Judgments Act, 1838) 450
8 & 9 Vict. c. 18 (Lands Clauses Consolidation Act, 1845) 331
8.74 613
c. 106 (Law of Real Property Amendment) 17, 154
10 & 11 Vict. 0. 96 (Trustee ReHef Act) 46, 275, 547
12 & 13 Vict. 0. 26 (Defects in Leases). .345, 351, 352, 356, 358, 589, 598, 600,
611, 612, 615, 638, 639
s.l 351
8. 2 351, 352, 355
s. 3 352, 354, 358
8. 4 352, 355, 356, 593
s. 5 353
8. 6 ■ 353
8.7 353
c. 106 (Bankruptcy Act, 1849) 650
13 Vict. c. 17 (Defects in Leases). . . .352, 354, 357, 358, 359, 589, 598, 600, 611,
612, 615, 639
13 & 14 Vict. c. 21 (Construction of Acts of Parliament) 18
c. 60 (Trustee Act, 1850) 452, 651
8. 32 650, 652
15 & 16 Vict. c. 86 (Chancery Improvement Act), s. 48 449
16 & 17 Vict. c. 51 (Succession Duty), 8. 4 282
8. 42 283
c. 70 (Lunacy Act, 1853), s. 124 361
8. 136 650
8. 137 452, 650
17 & 18 Vict. c. 83 (Stamp Act, 1855), s. 16 622
c. 124 (Cliaritable Trusts Act, 1855), s. 29 570, 609
18 & 19 Vict. c. 43 (Infants' Settlements) 420
19 & 20 Vict. c. 120 (Leases and Sales of Settled Estates) , . 331, 345, 355, 698, 605
20 & 21 Vict. c. 57 (Malins' Act) 18, 117, 385
c. 77 (Probate Court, 1857) 98
8.79 95
INDEX TO STATUTES. XXX Vll
PAQB
20 & 21 Vict. c. 85 (Divorce Court), s. 25 123
8. 26 19, 39
8. 57 41
21 & 22 Vict. c. 95 (Probate Court, 1858) 98
8.22 95
22 & 23 Vict. c. 35 (Lord St. Leonards' Act) ... .2, 14, 79, 81, 89, 129, 138, 330
8. 12 134, 135, 139, 446
8.13 359
8. 14 86, 87, 88
s! 15 ".".*.!. 86, 87
8.16 86,87,88
8.17 87
8.18 87,88
8.23 87, 547
c. 61 (Divorce Court, 1859), s. 5 39, 40
23 Vict. c. 15 (Probate Duty) 278
23 & 24 Vict. c. 38 (Law of Property Amendment) 451
c. 145 (Lord Cranwortb's Act) 449, 651
8.27 445
8.29 547
24 & 25 Vict. c. 1 14 (Lord Kingsdown's Act) 132, 133
25 & 26 Vict. c. 108 (Confirmation of Sales) 360
27 & 28 Vict. c. 112 (Judgments Law Amendment Act, 1864) 451
32 & 33 Vict. c. 71 (Bankruptcy Act, 1869), s. 15 450
8. 17 450
8. 25 450
8. 117 650
33 & 34 Vict. c. 14 (Naturalization Act, 1870) 393
0. 35 (Apportionment Act) 525, 625
c. 93 (Married Women's Property Act, 1870) 121
34 & 35 Vict. c. 43 (Ecclesiastical Dilapidations) 642
3G & 37 Vict. 0. 66 (Judicature Act, 1873) 44, 120
37 & 38 Vict. c. 37 (Lord Selbome's Act). .26, 115, 162, 163, 164, 365, 374, 375,
379, 486, 491, 505
c. 78 (V. & P. Act) 357
40 & 41 Vict. c. 18 (Settled Estates Act, 1877) 283, 345, 355, 605, 637, 643
8.4 630
8. 7 620
8. 16 360
8. 19 361
c. 33 (Contingent Remainders) 307, 308
41 & 42 Vict. c. 19 (Matrimonial Causes Act, 1878) 40
44 & 45 Vict. c. 12 (Inland Revenue Act, 1881), a. 38 280
44 & 45 Vict. 0. 41 (Conveyancing Act, 1881) 118, 322, 464, 455, 654, 589
8. 4 76
8. 5 551, 652
8. lo'V.'.V.'.V.' 629
8. 11 629
8. 12 629
XXXVlll INDEX TO STATUTES.
PAGE
44 & 45 Vict. c. 41,8. 14 355, 629, 630, 631, 632
8. 19 150, 449
8. 20 150
s. 21 150
s. 25 449
s. 30 444
8. 31 645, 646, 647, 648, 649, 651, 652
8. 33 445
8. 35 555
s. 36 547
8. 38 92, 460, 461, 462
s. 39 439
s. 41 643
8. 44 640
8. 50 8, 288
' 8.52 11,15,18,439
45 & 46 Vict. c. 38 (Settled Land Act, 1882) . . 42, 112, 284, 355, 556, 562, 569,
589, 598, 620, 646
s. 2 565, 597, 640
8. 3 554, 568
8.4 568
s. 6 597, 607
8. 7 591, 611, 613, 622, 630, 634
8. 8 622, 639, 640
8. 9 005, 622
8.10 597, 006, 640
8. 11 606
s. 12 359, 590
8. 13 621, 622
8. 15 697, 600
8. 16 , 554
8. 17 361
s. 19 555
8. 20 284, 575, 576
8. 21 613
8. 25 670
8. 29 038
s. 30 570
8. 31 572, 573, 690, 691, 592, 621
8. 32 547
8. 34 613, 622
8. 38 43, 677
8. 39 577
B. 40 547, 577
8. 41 678
8. 42 578
8. 43 578
8. 44 678
8. 45 679, 591
INDEX TO STATUTES. XXXIX
PAGE
45 & 4C Vict. c. 38, s. 50 22, 444, 581
8.51 581
8.52 •'582
8.63 582
g, 54 682
B. 65'.'.".".".*.'.'.'.". 164, 582
8. 5G 547, 583, 589
8. 57 583
8. 58 112, 570, 571
8. 59 643
8. 60 643
8 63 584, 587
c. 39 (Conveyancing Act, 1882) 118, 454, 455, 589
8.3 639
g_ 4 589, 590, 618
g 5 355, 618, 652, 653
g] 6 .'.'..'.'." .' 13, 15, 88, 90, 91, 460, 462
0. 75 (Married Women's Property Act, 1882) .... 8, 18, 120, 122,
123, 156, 158, 231, 257, 262, 323, 386, 420
8. 1, 8ub-s. 1 157
2 264, 265
3 264
4 264
5 265, 450
g 4 ... .'.'.'.'.' 243, 264, 265
8. 19 '. *.'.'.*.'.*." '.".'"." 157, 265
46 & 47 Vict. c. 52 (Bankruptcy Act, 1883) 265
S.44 22,450
8. 54,
8. 56,
450
450
.s. 147
47 & 48 Vict. c. 18 (Settled Land Act, 1884) 589
013
650
tied Land Act, 1884)
8. 4
8.5 579
8.6 586
g 7 586, 587
8^8 .V.V.V.V 567
48 & 49 Vict. 0. 72 (Housing of Working Classes Act, 1885) 569, 570
49 & 50 Vict. c. 27 (Guardianship of Infants Act, 1886) 446
50 & 51 Vict. c. 30 (Settled Land Act, 1887) 112
c. 73 (Copyhold Act, 1887), s. 45 444
51 & 62 Vict. c. 42 (Mortmain Act, 1888) 34 1
c. 59 (Ti-usteo Act, 1888), s. 2 547
52 & 53 Vict. c. 7 (Inland Revenue Act, 1889), s. 11 280
53 & 54 Vict. c. 5 (Lunacy Act, 1S90), s. 120 301. 451
8. 128 4ol, 60O
8_ 129 451, 650
c. 69 (Settled Land Act, 1890), s. 4 567
3. Q 575, 590
xl INDEX TO STATUTES.
PAGE
53 & 54 Vict. c. 69 (Settled Land Act, 1890), s. 7 591
8.8 607
s. 9 554, 640
s. 10 &97, 600
8. 11 572
s. 12 562
s. 16 580
s. 17 580, 646
s. 18 570
c. 70 (Housing of Working Classe8 Act, 1890) 569
54 & 55 Vict. c. 39 (Stamp Act, 1891), s. 77 622
0. 73 (Mortmain Act, 1891) 393
55 Vict. c. 5 (Colonial Probates Act, 1892) 134
55 & 56 Vict. c. 13 (Conveyancing Act, 1892), s. 2 632
8.5 631
8. 6 653
A CONCISE TREATISE ON POWEES.
CHAPTER I.
POWEES.
1. Definition of Power ; Division of
Towers: Common Law Powers;
Equitable Powers ; Powers ope-
rating under the Statute of Uses 1
2. In what deeds Powers may he
inserted. Deeds operating by
transmutation of possession ;
and otherwise 3
3. Eject of limitation unto and to
the use of A 4
4. Devise to uses
5. Mode of reservation of Powers .,
G. Division of Powers into general
and limited
7. Division of Powers over real
estate: of ownership; collateral;
relating to the estate of donee in
the land ; appendant, or in gross
8. Powers and trusts distinguished..
PAGE
G
1. A POWER is an autliority reserved by, or limited to, a Definition cf
person to dispose, either wholly or partially, of real or personal ^P*'^^^-
property, either for his own benefit or for that of others (Chance,
pi. 1 ; and see Fmne v. Clement, 18 Ch. D. 490). The word
is used as a toelmical term, and is distinct from the dominion
which a man lias over his own estate by virtue of o^^^lersllip.
Powers are either Common Law Powers, Equitable Powers, or Division of
derive their efficacy from the Statute of Uses. These names P''^^®'"^-
are retained on the ground that they have been sanctioned by
user, although they are not perhaps strictly accurate. Common Common law
Law Powers are authorities given to one person by another to do
an act for him : they may be bare authorities, or powers coupled
with an interest. A Common Law Power enables the donee to
pass the legal estate ; but it is the execution, not the creation of
the power, which effects the transmutation of estate. The legal
powers.
A CONCISE TREATISE ON TOWERS.
Equitable
powers.
Powers
operatinjj
under the
Statute of
Uses,
estate before the execution remains in the creator of the power,
or his grantee, or heir-at-law, as the case may he. Thus, a
debase by A. that his executors do sell his lands, gives the
executors a power to pass the legal estate to the purchaser ; the
executors themselves take no estate — that descends to the heir-
at-law until the power is executed — but they have the power of
nominating the purchaser as the person to take the legal estate,
and on their doing so, the estate at once vests in him in the same
way as if the testator had named him as his devisee {E. of
Staford v. Buckle//, 2 Yes. sen. 179 ; Warneford v. Thompson, 3
Yes. 513 ; ^rnith v. Lord Camclford, 2 Yes. 698). Powers of
attorney and powers created by Act of Parliament are also
instances of Common Law Powers (Sug. Pow. 45). It must of
course be borne in mind that, by the common law, estates can
only be limited in possession, or by way of remainder or
reversion, to take effect on the natural determination of the
preceding estate. The grantor in a common law conveyance
cannot reserve to himself nor confer on any other person the
power of revoking or altering the grant by any future act or
instrument, for that is deemed repugnant to the conveyance
itself (Co. Litt. 237 «)•
Equitable Powers are such as affect the equitable, not the
legal, estate or interest : i.e., where the legal interest is properly
vested in one or more, but a power of disposing of the beneficial
interest is in some other person. The legal interest does not pass
by the execution of the power, but the legal owner must transfer
it in order to complete the title of the nominee of the person
who executes the power, and equity will compel such transfer
{Ue Broun, 32 Ch. D. at p. 601). The power of selling real
estate, vested by implication in executors by a charge of debts
before 22 & 23 Yict. c. 35 {post, p. 81), is an instance of an
equitable power. So, too, is the ordinary power of appointment
among children in a marriage settlement where personalty is
vested in trustees.
Powers operating under the Statute of Uses are powers of
revoking existing or declaring future uses, vested in some person
named for that purpose in the deed by which the uses to be
POWERS. O
affected by the operation of the power are created. It has been
already observed that, before the statute, legal estates could only
be limited in possession, or by way of remainder or reversion to
take eifoct on the natural determination of the preceding estate
of freehold. Shifting and springing estates were repugnant to
the simplicity of the common law, but, even before the statute,
were enforceable in equity ; the estate of cestui que use being
equivalent to the estate now enjoyed by cestui que trust. The
statute enacted in effect that the seisin should follow the use ;
that is, that the legal estate should, by force of the mere declara-
tion of the use, pass to the cestui que use. This was restrained to
the first use by the decision of the common law judges, that
there can be no use upon an use. Therefore, in a conveyance to
A. to the use of B. to the use of C, the statute executes the use
in B., and C.'s estate is merely equitable.
One effect of the statute has been to enable the creation of
shifting, future, and springing uses, limited to take effect on the
occurrence of certain events or the nomination of certain persons.
The ordinary limitation in a marriage settlement to the use of
the settlor until the marriage, and from and after the solemniza-
tion thereof to the use of trustees, is an instance of a shifting
use to arise on the occurrence of an event ; and the powers of
sale, jointuring, and the like, usually inserted in such settle-
ments, are instances of f utm-e uses to arise on the nomination of
a person. A power operating under the statute is, then, the
capacity thus given to call legal estates into existence in the
futiu-e; (see Sug. Pow. ch. 1).
2. The last-mentioned powers cannot be inserted in deeds of In what deeds
powers under
all kinds, so as to anect the legal estate. the statute
Conveyances of real estate under the statute may, or may not, Inserted,
operate by transmutation of possession. Where land is conveyed Deed:^
by a common law assurance to A. in fee, the legal seisin is trausmuratioa
transferred, and vests in him by the conveyance by the common auddewis not
law; and if the grantor declares that such conveyance shall so operating,
enure to certain uses, those uses will immediately arise, and be
executed out of the seisin of A., and the statute transfers the
legal estate to those cestuis que use. But if the deed be not such
b2
A CONCISE TREATISE ON POWERS.
In what dee is
inserted.
Consideration
required to
raise uses.
Demise wlU
not support
appointment
of the fee.
Limitation
unto and to
the use of A.
as to operate by transmutation of possession ; that is, if it derive
its effect from the Statute of Uses and merely transfer the use,
there can be no further valid legal use than that of the first
cesfiii que use. Thus, if A. bargain and sell by deed enrolled
under the statute, to B. and his heirs, there is no conveyance at
common law ; but, by the operation of the statute, the legal
estate at once vests in B. ; that being done, the statute is power-
less to raise any further uses, for an use cannot be raised upon an
use. It follows, therefore, that powers deriving their effect from
the Statute of Uses can only take effect on the legal estate,
when inserted in deeds operating by transmutation of possession ;
that is, in declarations of uses of fines and recoveries, feoffments
to uses, releases and grants, and not in a bargain and sale, or
covenant to stand seised.
The question of the consideration required to raise uses in
bargains and sales and covenants to stand seised is of little
practical importance in the present day. See on this subject,
with reference to powers inserted in assurances of that nature,
Sug. Pow. 138 ; The Law Magazine and Eeview, N.S. (1874)
vol. 3, p. 1054; Chance, pi. 50 et acq.; 3 Sweet's Bythewood,
239, 248, 676.
A jDower to appoint the legal fee cannot be engrafted on a
mere demise. Such a power, in order to be effectual at law,
requires a seisin out of which the use appointed thereunder is to
take effect. A lessor could not by demise limit the legal fee ;
and it follows that he cannot by that instrument enable his
nominee to do so. Such a power may be good in equity, but
can have no effect on the legal estate (5 Sweet's Bythewood,
693, note) ; and in this respect the Judicature Acts have made no
alteration.
3. In connection with the doctrine that an use cannot be
limited upon an use, the effect of a limitation unto and to the
use of A. may be considered.
The statute says that " where any person or persons stand or
be seised, &c., to the use, confidence, or trust of any other person
or persons," &c. Therefore, if an use be limited to a feoffee,
conusee, recoveror, or releasee, such use, generally speaking, is
POWERS.
not executed by the statute, but the feoffee, &c., is in by the
common law [Mcreditli v. Joanf>, Cro. Car. 244), In this ease,
notwitlistanding the grantee is in by the common law, yet after
the declaration of the use to him, he has not only a seisin but
an use, although not the use which the statute requires ; and,
therefore, that seisin wliicli, before the limitation of the use to
himself, was open to servo uses declared to a third person, is by
the limitation filled up, and will not admit of any other use
being limited on it, upon the principle that an use cannot be
limited upon an use (Sanders on Uses, 5th ed. 89). " He is in
of the estate clothed with the use, which is not extinguished but
remains in him ; he is, in fact, in both of the estate and the
use, both by the common law and by the statute " {D. v.
Passingham, 6 B. & C. 305). Accordingly, in that case, the
estates which followed a conveyance imto and to the use of A.
were held to be equitable. But that was to effectuate the
intention ; and it is to be observed that he is primarily in by the
common law, although the statute operates so far that no further
uses can be declared. That he is in by the statute appears on
several authorities. Thus, a conveyance to A. to the use of B.
and his heirs gives B. an estate during A.'s life only, for cestui
que use cannot have an estate in the use of greater extent than
the seisin out of which it is raised ; but a conveyance to A. to
the use of A. and his heirs gives A. the fee {Meredith v. Joans,
Cro. Car. 244). And Lord Bacon (Uses, 65), says, " The whole
scope of the statute was to remit the common law, and never to
intermeddle where tlie common law executed an estate ; there-
fore the statute ought to be expounded that where the party
seised to the use and the cestui que use is one person, he never
taketh by the statute, except there be a direct impossibility
or impertinency for the use to take effect by the common
law."
In Orme's case (L. E. 8 C. P. 281), A., seised in fee, granted
" unto B., C, and D., and their heirs, one perpetual yearly rent-
charge of £9," " to hold the said rent-charge unto the said B.,
C, and D., their heirs and assigns, to the use of the said B., C,
and D., their heirs and assigns for ever, as tenants in common,
A CONCISE TREATISE ON POWERS.
and in equal shares." It was held that the use being specific,
and not inconsistent with the rest of the habendum, the whole
habendum must be read as specific, and so read that the deed
operated as a grant at common law, and not under the Statute
of Uses. In mc/is v. B/ain (18 C. B. (N. S.) 90 ; 34 L. J. 0.
P. 88), the grant was to B. and his heirs, habendum to B. and
his heirs to the use of A., B., C, D., E., and F., their heirs and
assigns, as tenants in common. That was held to operate under
the statute. (And see Lourock v. Orcrscers of BrougJtton, 51
L. T. 399 ; Sug. Pow. 141-2.) It has accordingly been con-
tended that, if an estate be limited unto and to the use of A.
and his heirs by way of mortgage, a power of leasing limited
thereupon to A. is invalid at law, because A. is in by the
common law (1 Sand, on Uses, 157). Lord St. Leonards (Pow.
140) maintains the contrary opinion. In order to avoid the
question, the draftsman should follow the advice given in
Bythewood's Conveyancing, and limit the estate in such a case
to a seisinee to uses (5 Sweet's ed. 559, note).
Devise to 4. A devise to uses operates by virtue of the Statutes of Wills,
concurrently with the Statute of Uses ; not on the ground that
the Statute of Uses directly applies to wills — for that statute was
passed before the Statute of Devises (32 Hen. YIII. c. 1) — but
on the ground that a testator, by devising to uses, shows an
intention that the rules, made applicable to settlements by the
Statute of Uses, shall be applied to his will {Baker v. White,
20 Eq. 166, 171 ; Re Tanqueray-Willaume, 20 Ch. D. 465,478;
Cunliffe V. Brancker, 3 Ch. D. 393 ; Beny v. Bernj, 7 Ch. D.
657), and accordingly a devise to A. and his heirs to the use of
B. and his heirs, vests the legal estate in B. ; and on the other
hand, a devise to the use of A. and his heirs in trust for B.
vests the legal estate in A. And it may now be considered to
be settled that a devise to uses is good without a seisin to serve
those uses (Sug. Pow. 146-8 ; 2 Jarm. on Wills, 4th ed. 289) ;
and that, although no seisin has been raised by a devise (e.g., if
A. devise that B. sell his lands), yet B., in exercising his power,
may create a seisin to serve uses, for such must have been the
intention of the testator (Sug. Pow. 198).
uses,
POWERS.
5. Lord St. Leonards (Pow. 137) says that powers of appoint- Mode of
ment or revocation may be reserved either in the body of the of powers.
deed or by indorsement before the execution of the deed, or by
a deed of even date ; and tliat there need not bo any counter-
part of the deed. The eases cited by liim {Griffin v. Sfrni/tope,
Cro. Jac. 454 ; Oiifon v. JFcch, 2 Keb. 809 ; Fifz v. S^m/-
brooJi, 1 Keb. 134) do not appear to have actually decided these
points. Lord St. Leonards adds that an interlined power -^ill
be good, in the absence of e^ddence to sliow that it was made
after the execution. But this must be understood to refer to
deeds, and not to wills : it is well settled that alterations in a
deed are presumed to have been made before, but in a will after
its execution, in the absence of evidence to the contrary (Taylor
on Evidence, 8th ed. pi. 164).
6. Powers may be either general or limited. General powers General
1,11 • • J? PI and limited
are such as the donee can exercise m lavour oi such person or powers,
persons as he pleases. Limited powers are such as the donee
can exercise only in favour of certain specified persons or
classes. A power to appoint by will only is a general power
within s. 27 of the Wills Act {Ilauihoni v. Shedden, 3 Sm. & Qc.
293 ; Re Poicell, 18 "W. R. 228) ; and so is a power to direct by
"vrill that a sum of money be raised and paid {Re Jones, Greene
V. Gordon, 34 Ch. D. 65). A power to appoint to whom the
donee pleases, except A., has been held to be a general power so as
to make the appointed fund assets for payment of debts {Edie
V. Babington, 3 Jr. Ch. R. 568), but not to bo a general power
within sect. 27 of the Wills Act {Re Byron, Williams v. Mitchell,
1891, 3 Ch. 474) ; such a power is an absolute power within
36 Geo. III. c. 52 {Drake v. Att-Gen., 10 CI. & Fin. 257). In
Bristow V. Skirroiv (No. 1) (27 Beav. 585), a testator devised his
estates on the same trusts as his wife should declare with respect
to the disposition of her residuary estate. The wife by her will
gave the devised estate to A. and her residue to B., C, and D.
The power was held to be general, and A. was held to be entitled ;
but see 8. C. 10 Eq. 1. The postponement of the period of dis-
tribution of a fund, over which a power of appointing to whom
the donee pleases is given, does not prevent the power from being
A CONCISE TREATISE ON TOWERS.
Appointment
by dcnec to
himself or
hv wife to
husband.
Division of
powers over
real estate.
Powers of
ownership.
Powers
collateral.
general (JRe Keou-n, 1 I. R. Eq. 372) ; and by a revocation of all
bequests "in favour of " A., a limited power of appointment,
as ■well as a less interest in A., were held to be revoked {Re
Brough, Currei/ v. Brourjh, 38 Ch. D. 456). A power to appoint
by will, specially referring to the power, or before a particular
time, is not a general power within sect. 27 of the Wills Act
(see Phillips V. Cai/lci/, 43 Ch. D. 222 ; Davies v. Davics, 1892,
3Ch. 63, and ^w.s/', p. 233).
The donee of a general power may appoint to himself {Tncin
V. Farrer, 19 Yes. 86) ; or to his own executors and adminis-
trators {JlacJcoizie v. Machcnzic, 3 Mac. & Gr. 559).
A husband or wife, donee of a general power, or of a limited
power of which the other is an object, may appoint to that
other {Hughes v. Wells, 9 Hare, 749 ; Holder v. Preston, 2 Wils.
400). If the appointment be by the wife in her husband's
favoui', the Court will look with some jealousy on it ; but such
an appointment will be considered good, unless it is shown to
have been made under circumstances sufficient to invalidate it ;
and the onus probainli is on the person impeaching the appoint-
ment {Kedbi/ V. Nedhy, 5 De G. & Sm. 377). It has been held
at law, however, that a married woman cannot, under a power
of leasing, demise to her husband {D. d. Hartridge v. Gilbert,
5 Q. B. 423. See now Conveyancing Act, 1881, sect. 50 ; M.
W. P. Act, 1882). A power to lease to such person or persons
as A. shall think fit, authorizes a lease to a corporation {Re Jeff-
coch, 51 L. J. Ch. 507).
7. Powers over real estate are either (1) powers of ownership ;
(2) powers collateral ; or (3) powers relating to the estate of the
donee of the power in the land ; and these last are subdivided
into powers appendant and powers in gross.
A power of ownership is one which gives the donee complete
dominion over the estate, although he has no estate in it. Thus
a limitation to such uses as A. shall appoint, and, in default of
appointment to B., gives A. a power of ownership.
A collateral power is a bare power given to a mere stranger
who has no interest in the land : e.g., a power of sale and
exchange given to trustees wlio have no estate in the settled
lands. " A power collateral is of the nature of an authority to
POWERS.
deal with an estate, no interest in which is vested in the donee
of the power. A power of that kind is wholly different from an
estate or interest, and cannot without aLuse of language be so
designated " (Dickenson v. Teasda/c, 1 D. J. & S. GO).
A power relating to the estate of the donee in the land is a Powers re-
power given to some person having an estate or interest in the esSf of
land over which it is to he exercised. .Such a power is, as above '^,"°^'^ ^'^
. ^ the land.
stated, either appendant or in gross (see 2)0' Jessel, M. R., in
He D'Amjihau, 15 Ch. D. at p. 232).
It is appendant when the estate created by its exercise over- Appendant,
reaches and affects the estate and interest of the donee of the
power.
It is in gross when the estate so created is beyond, and does In gross,
not affect the estate or interest of such donee. Thus, a power
of jointuring given to a tenant for life is in gross ; and so is a
power to appoint the estate in remainder amongst his ov^n
children, given to the tenant for life. But a power of leasing
in possession in the same person is appendant (see Butler's note
to Co. Litt. 342 h) . A power to appoint by will real estate, of
which the donee was equitable tenant for life for her separate
use, with remainder in default of appointment in trust for her
own right heirs, has been held to be appendant {Pennc v. Peacock,
Forrester, 41).
The distinction is chiefly important with respect to the
extinguishment and suspension of powers.
8. Powers, properly so called, must be distinguished from Powers and
trusts. *' Powers are never imperative ; they leave the act to tin^aished.
be done at the will of the party to whom they are given. Trusts
are always imperative, and are obligatory upon the conscience
of the party intrusted" (per Wilmot, C. J., Wilmot, 23).
Trusts and powers are, however, often so blended that it
becomes a question of nicety to determine whether they are in
fact powers or trusts ; and the cases have established an inter-
mediate class, which may bo termed powers in the nature of
trusts {seeposf, chap. xii.).
The question is often important in cases of conversion. To
effect conversion an imperative trust is necessary; a discretionary
10 A CONCISE TREATISE ON POWERS.
power, unless exercised, is not suflScient {Fletcher v. Ashhurnerf
1 Wh. & T. L. C, and cases there cited).
It is a question of construction in eacli case (Re Hotchhys,
32 Cli. D. 408) ; and no general rule can be laid down (see
Griercson v. Kirsopp, 2 Keen, C53) ; but it is apprehended that
the word " direct " is mandatory. And, generally, it is probable
that the Coui-t would hold the same words imperative for the
purposes of conversion as have been held imperative in cases of
precatory trusts, as to which, see post, chap. xii.
CHAPTER II.
EXTINGUISHMENT AND SUSPENSION OF POWERS.
11
PAOB
1. B'ow far collateral powers may
be ext'wgiiishcd or released .... 11
2. Powers, other than collateral or
coupled with a trust, may he.
How destroyed; u-hat is suffi-
cient implication 15
3. Destruction by alienation of par-
ticular estate 19
4. Powers of appointment governed
by same principles 22
5. Does the grant of a term of years
suspend a power of leasing .... 26
6. Question whether a power is
paramount to or in derogation
of an estate tail 26
PAOB
7. Powers in gross : whether de-
stroyed or not by the determi-
nation of any estate which the
donee thereof may have 27
8. Merger of powers in fee 31
9. Powers extinguished when their
purpose is satisfied 32
10. Power may exist after execu-
tion 3d
l\. yl power may co-exist with the
fee 38
12. Effect of divorce on exercise of
powers 38
13. Effect of administration decree.. 41
1. Before the 1st of January, 1882, a power simply collateral
, ••11 11 powers could
collateral could not be extinguished or suspended ^ot be ex-
p ii tiuguished
by any act of the donee, or ot any other persons ; or released.
nor could it be released, where it was to be
exercised for the benefit of another {West v.
Berneij^ 1 R. & M. 434 ; Willis v. Shorml, 1 Atk.
474 ; Diggeh case, Sug. Pow. 893).
Such a power is not in the nature of a right or interest in the
donee thereof ; and is given, or supposed to have been given, for
the benefit of some third person (Co. Litt. 265 b). It is now
enacted by the Conveyancing Act, 1881, s. 52, as follows : (1.) J^^^J^f^^f °^
A person to wbom any power, whether coupled w^th an interest s. 52.
or not, is given, may by deed release or contract not to exercise
the power. (2.) This section applies to powers created by
12 A CONCISE TREATISE ON POWERS.
instruments coming into operation either before or after tlie
commencement of the Act. It is apprehended that this Act does
not apply where the release of the power would be a breach of
trust, but that a power coupled with a duty cannot be released,
nor, if it be to arise at some future time, can the donee fetter his
rif'ht to exercise it by any act or undertaking previous to that
time {Be Eijrc, 49 L. T. 259 ; >SV^(^/v. Patthmn, 34 W.E. 561).
In WeUer v. Ker (L. E. 1 Sc. & D. 11), by a testamentary
trust settlement, varied by a subsequent codicil, A. directed
ti'ustees to hold his estate to the use of B. in tail, with
remainders over, and directed that the estate shoidd be conveyed
to B. on his attaining 25 ; but declared that " in case B. should
marry or otherwise conduct himself so as not to merit the
approbation of his said trustees," his estate should be a mere life
estate, ^ith remainder to his children in fee. B. attaining 21,
and before attaining 25, married with the approbation of the
trustees : they were aware of the settlements by which (amongst
other things) B. charged the said estate with a jointure for his
wife, which he could only do in the event of the estate being
conveyed to him in fee or in tail. B. subsequently misconducted
himself. The approval of the trustees and their knowledge of
the settlement, and the fact that they gave no warning that they
might ultimately be obliged to defeat it, made no difference in
the duties of the trustees : they were held bound to execute the
power so as to cut down B.'s estate to a life interest, although
the effect was to defeat the provision for the wife, as well as other
claims founded on a confident expectation that the marriage
settlement would not be disturbed.
In lie Dunne's Trusts (L. E. 1 Ir. 516) the testator gave his
residue to his children in certain proportions, subject as to the
share of his son M. as thereinafter provided. The sons were to
take a vested interest in their shares at 23, subject again as to
M.'s share as thereinafter provided. And as to M.'s share he
empowered his wife in her uncontrolled discretion by deed or
will to declare that he should not take more than £1,000 for his
share ; and in the event of his wife exercising that power, he
gave the residue of M.'s share over to his other children. After
EXTINGUISHMENT AND SUSPENSION OF POWERS. 13
M. had attained 23 tbo wife released her power and covenanted
with him not to execute it. The trustees paid M.'s share into
Court, but on M. petitioning for payment out, the M. R. held
that the power of the widow was "an authority vested in her as
a trustee, to be exercised not for her own benefit, but for the
benefit of the children of the testator who gave it " ; and there-
fore could not be released.
The indestructible nature of a power coupled with a trust of
this nature does not depend on any technical rule of tenure, but
is a rule of equity applicable as well to personal as to real estate
(see Chambers v. Smith, 3 App. Ca. 795 ; Thacker v. Keij, 8 Eq.
408). By sect. 6 of the Conveyancing Act, 1882, (1) a person Convoyancing
to whom any power, w4iether coupled with an interest or not, is s. 6.'
given, may by deed disclaim the power; (2) on such disclaimer
the power may be exercised by the other or others, or the
survivors or survivor of the others of the persons to whom the
power is given, unless the contrary is expressed in the instm-
ment creating the power; (3) the section applies to powers
created by instruments coming into operation either before or
after the commencement of the Act.
Althouo-h, before the 1st of January, 1882, a collateral power Equitable
tp1o3.s6 or
could not be released, there were cases in which, if it was an extinction,
equitable power, equity interfered to prevent its execution. In
Eodldnson v. Qninn (1 J. &. 11. 303), a testator, after charging
his estate with payment of his debts, de\dsed certain lands to
trustees on trusts for his daughters and their families, and after
the death of the surviving daughter, to sell, with power to give
receipts. The executors took a power of sale for payment of
debts, and could have insisted on a conveyance of the legal
estate. The Y.-C. held that the reasonable construction of the
particular wall was, that as soon as the time came when the
trustees were to exercise their power, and they did exercise it
accordingly, the fii-st power ceased. He also said that generally
any sale by trustees under a power, prior to an actual sale by
executors, would be effectual: and that in his opinion tlie
authorities had not gone the length of establishing that after an
14 A CONCISE TREATISE ON POWERS.
actual alienation by devisees, the executors could still sell. Mz
Dai-t (V. .^ r. 097 c/ scq., 6tli ed.) points out the difficulty before
22 & 23 Yiot. c. 35, ss. 14-18, of accepting titles depending on
•svills which contain charges of debts and devises of the estates to
other persons beneficially. He says that it had been the
practice to accept titles from the devisee alone, without requiring
evidence of the debts having been paid or causing the executors
to concur in the conveyance. Recent decisions, however, had
tended to raise a very serious question as to whether this practice
had not been erroneous, and as to whether the sale should not
have been by the executors, or at any rate with their concurrence :
even the efficacy of tlieir concurrence had been doubted by many
practitioners, upon the ground that the power of the executors
to sell, if it existed, was a collateral power, and incapable of
being released.
The implied power of executors to sell real estate before the
statute was merely an equitable power : the question, so far as
cases of tliat kind are concerned, would generally be one of
equities : and it seems that after a bo)id fide sale by a devisee, the
Court would not give effect to any attempted sale by executors
{Eodldnson v. Quinn, 1 J. & H. 303 ; Storry v. WaM, 18 B.
659) : the difficulty would be to decide whether the equity of
the purchaser for value is better than that of the creditors, whose
claims could not be affected by any release or laches on the part
of the executors : if, however, the purchaser gets the legal estate,
it seems the better opinion that the Court would not interfere to
deprive him of it. Mr. Dart (699) says that in cases not within
22 & 23 Vict. c. 35, it will still be a wise precaution for a
purchaser from a devisee to satisfy himself that all the debts
have been paid, or to require the executors to authorize the
proposed payment of the purchase-money to the vendors ; and,
if the power be one that authorizes the disposition of the legal
estate, the sale should be made by the executors — as if a devise
be that a man shall sell certain land and the person autho-
rized levies a fine, or executes a feoffment, or releases all his
right, yet ho may afterwards sell the land (Sug. Pow. 49, citing
EXTINGUISHMENT AND SUSPENSION OF POWERS. 15
Diggers case) ; and the donee of such a power could not disclaim
before the Conveyancing Acts (Sug. Pow. 50 ; and see Co. Litt.
342 b, Butler's note iii.).
2. Before the Lst of January, 1882, all powers, other ah powers,
than powers collateral and powers coupled with a lateral aud
trust or duty, and since the 1st of January, 1882, aTrS^t, maV
all powers, other than powers coupled witli a trust orSroyed.
or duty, may be suspended or destroyed, either
wholly or in part, by the donees thereof
(Sug". Pow. 82; Conveyancing Act, 1882, s. 6).
" There is a diversity between such powers or authorities as
are only to the use of a stranger and nothing for the benefit of
him that made the release, and a power or authority which
respecteth the benefit of the releasor, as in the usual powers of
revocation ; when the feoffee, &c., hath a power to alter, change,
determine, or revoke the uses (being intended for his benefit) he
may release : and where the estates were before defeasible, he
may, by fiis release, make them absolute and seclude himself
from any alteration or revocation " (Co. Litt. 265 b).
Every power reserved by the grantor for his own benefit,
whether he has reserved an estate in the land or not, is an
interest which may be released {Bird v. C7/n'.stoj)/ier, Stiles, 389).
The rule applies as wtII where the power is present as where Rule applies
it is future, and to arise upon a contingency {Alhcnufs case, and future
1 Co. Eep. 110 b) ; and to personal as well as to real estate P'^^'^^'^;
{Noel V. Henley, McCl. & Y. 302) ; and it is submitted that it
applies to all cases, whether the donee bo the settlor of the
estate or not.
The rule appHes to powers appendant and in gross. *'I to powers
think that every power reserved to a grantee for life, though and in grosa ;
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 extinguished. In respect of his freehold interest,
he can act upon the estate : and his dealing with the estate, so
16
A CONCISE TREATISE ON POWERS.
to limited
powers ;
to testamen-
tarj- r owers.
Extlnguif-h-
ment by deal-
ing's incon-
sistent with
exercise ;
as to create interests inconsistent wdth the exercise of his power,
must extinguish his power. The general principle is that it is
not permitted to a man to defeat liis own grant " {per Sir John
Leach, West v, Bcrncy, 1 E. & M. 431, 435. The proposition,
however, that the power is extinguished, must be taken subject
to the qualification stated in the next rule, 2^od, p. 20). Thus
where there is a general power of a^^pointment, with remainder
to the use of the donee in fee, a grant of the fee extinguishes the
power.
The rule applies to limited powers, e.g., powers in favour of a
wife or children. Such powers cannot be called trusts, for the
alleged ccsfid-s que tnid cannot compel theii" execution ; and as
it is at the option of the donee to exercise it or not, any dealing
with the estate inconsistent with its exercise must determine the
option {Smith v. Death, 5 Madd. 371 ; King v. Melling, 1 Yent.
225 ; Coffin v. Cooper, 2 Dr. & Sm. 365 ; Bivldeg v. Guest,
I E. & ]VI. 440) ; and the release, if once made, is absolute and
irrevocable. In Smith v. Phimmcr (17 L. J. Ch. 145), real estate
was settled by a marriage settlement in 1807 on husband and wife
successively for life, and after their deaths to their children as
they should by deed jointly appoint, and in default of such
appointment, as the survivor should by deed or will appoint.
The wife died without having joined in any appointment, and
in 1842 the husband released his power by deed, and in 1843
made a will jiurporting to exercise the power. The Y.-C. held
that the release was valid and the will inoperative as an
exercise of the power.
The rule applies to powers exerciseable by will only, as well as
to those exerciseable by deed, or by deed or will {Barton v.
Briscoe, Jac. 603 ; Horner v. Sicann, T. & E. 430 ; Re Chambers^
II Jr. Eq. E. 518 ; and see B aimer v. Locke, 15 Ch. D. 294 ;
Be Badeliffe, Badcliffie v. Bexces, 1892, 1 Ch. 227).
The powers to which the rule refers may be affected either by
dealings inconsistent with their exercise or by express or implied
release. A covenant or agreement not to execute a power
operates, in equity, either entirely or pro tanto, as the case may
be, as a release of the power {Hurst v. Hurst, 16 B. 372 ;
EXTINGUISHMENT AND SUSPENSION OF TOWEKS.
17
Davies v. UufjuemH, 1 H. & M. 7;i0). And a covenant may
have this effect, although it is merely voluntary {Imac v. ILirjIic^,
9 Eq. 191 ; Green v. Gree)i, 2 Jo. & L. 529 ; J^ Chamhers,
11 Ir. Eq. E. 518).
These powers may he released, extmguished, or suspended by by express
express words {Cunnynghame v. Thnrloic, 1 11. & M. 43G n. ; implication.
Smith V. Houhlon, 26 B. 482), or by implication. But althougli
a recital may amount to an agreement to release, yet the whole
scope and intent of tlie deed is to bo considered {Boyd v. Petrie,
7 Ch. 385). The concurrence of the mortgagor in the transfer
of a mortgage, Avith the benefit of all provisoes, &c., and his
covenant to pay a different sum on a different occasion, does not
destroy the power of sale contained in the original mortgage
deed {Touiiy v. Roberts, 15 B. 558). But if there were no
assignment of the powers and provisoes contained in the first
mortgage, it would be evidence of an intention that they should
be extinguished (/7^/V/. ; Cnrling v. S/iutlkirort/i, 6 Bing. 121 ;
Cruse V. Kour//, 2 Jur. N. S. 536, which was a case of sub-
mortgage, and a sale by sub-mortgagor to sub-mortgagee;
Sfeu-arf v. Lord Donegal, 2 Jo. & L. 636). So, too, on a disen-
tailing deed, the powers of sale, &c., in the original settlement
may be kept alive {Re Wright, 28 Ch. D. 93; ILirrison v. Bound,
2 D. M. & G-. 190). As to the persons by whom these powers
may be released or extinguished, see post, Chap. lY.
Fines and recoveries, which are now abolished by 3 & 4 Fines and
. r^ o /-> -r-' ir\n recoveries and
Will. IV. c. 74, and feoffments, which smce 8 cc 9 Vict. c. lUb, feoffm..-nt.s.
s. 4, have no tortious operation, prior to those Acts respectively
ransacked tlie 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 deeds acknowledged
under the Act for Abolishing Fines and Eecoveries have an
innocent operation only, and do not destroy powers, except
where a like deed, independently of the Act, would have
destroyed them (Sug. Bow. 92) .
In Tomlinson v. Dighton (1 P. W. 149), it was admitted that
where there was a devisee for life with power to appoint to her
children, the power would be extinguished by fine {Biehtry v.
F,
C
18
A CONCISE TREATISE ON POWERS.
Release of
powers by
inanied
■\vonieu .
Restraint on
alieuation.
Guesf, 1 E. & U. UO). And in Savi/lc v. BlacM (1 P. W. 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,
hy joining in a recovery and resettlement of the estate.
Before the abolition of fines and recoveries (3 & 4 Will. IV.
e. 74), a married woman could not release or extinguish a power
affecting real estate, except by fine or recovery. The 77th
section of the Act enabled her to do so by deed acknowledged,
with the concurrence of her Imsband, subject to the qualification
imposed by sect. 78 as to property which she was restrained
from anticipating; and Malins' Act (20 & 21 Vict. c. 57)
enabled lier in the same manner to release powers affecting
reversionary personal estate, where she was not restrained from
anticipation. It is submitted that it was always competent to
her to release her power over personalty vested in possession, and
that she may now by deed unacknowledged release her power over
any proj)erty, whether real or personal, and whether in possession
or reversion, and whether she is restrained from anticipation or
not, under the provisions of the Conveyancing Act, 1881,
sect. 52. The word " person " in the Act includes females as
well as males (13 & 14 Vict. c. 21, s. 4) ; and it appears
impossible to say that a married woman is not accurately
described as a female person. The Married Women's Property
Act, 1882, appears not to touch the question.
It is submitted that a restraint on anticij)ation cannot affect
the married woman's capacity to release her power ; it is
difficult to see wliy a veto on alienation to a limited extent
should prevent the release and extinguishment of the capacity
of alienation by power so far as permitted.
In Heath v. Wickhayn (5 L. P. Ir. 285), under a separation
deed lands in Ireland were vested in trustees upon trust to pay
the rents to a married woman duidng her life for her separate
use, without power of anticipation, and after her death to the
use of such persons as she should appoint by will. The Court
of Appeal held that under the Irish Fines and Recoveries Act,
sect. G8 (which is the same as sect. 77 of the English Act, with
the addition of the word " disclaim "), the married woman could
EXTINGUISHMENT AND SUSPENSION OF POWERS. 19
by deed aokuowledged release this power, notwithstanding the
restraint on anticipation of her life estate. V.-C. Chatterton
had held that the 69th section of the Irish Act, which pro\ddes
that tlio powers of disposition given by sect. 68 shall not enable
a married woman to dispose of lands or any estate therein where
the settlement or other instrument under which she may be
entitled to the same shall contain a valid restriction against the
anticipation thereof by such married woman, prevented a release
of the power under sect. 68. But the Court of Appeal con-
sidered that the Act only prevented a married woman from
anticipating her own enjojonent of the property subjected to
the restraint, and that sect. 69 does not qualify the preceding
section, except as to the actual estate or interest which is itself
covered by the restriction (see p. 308). It will be observed that
the phraseology of the Irish Act differs from that of sect. 78 of
the English Act; but Lord Lyndhurst, in Baygctt v. 2Ieux
(1 Ph. 628), considered that the two Acts meant the same thing ;
and that the Irish Act, which is subsequent to the English Act,
explained that Act.
In the case before the Irish Court the power was testamentary
only ; but it is submitted that the same reasoning applies to a
power of appointment by deed, cjj. the ordinary j^ower of
appointment in default of issue in a settlement, by will when
covert, by deed or will when discovert. It cannot be said that
a release of this power of disposing of the property operates as
a disposition in breach of the restraint on anticipation of the life
interest ; it is the execution of the power, not the release of it,
that would operate as an alienation of the estate, and even this
would leave untouched the life estate which alone is usually
affected by the restraint ; (and see Me Ondow, Plomlen v. Gai/ford,
39 Ch. D. 622).
It may here be added that husband and wife are empowered
to execute a joint power of appointment, notwithstanding that
they are judicially separated (20 & 21 Vict. c. 8-5, s. 26).
3. Powers appendant are not suspended or destroyed by the Destruction
alienation of the particular estate to which the power was oT particular
attached, unless the terms of the instrument creating the power ^^^^^^-
20
A CONCISE TREATISE ON POWERS.
Generally
alienation
does not
destroy
power.
Absolute
alienation.
show that such was the donor's intention. Lord St. Leonards'
dictum (Pow. 66) that an alienation of the life estate in all
cases prevents the exercise of a power of leasing with the con-
sent of the alienee must be taken as overruled, although there
may be cases in which, on the construction of the instrument, it
is plain that the donor of the power meant the execution to be
confined to the period during which the donee possessed the
estate to which it was appendant. It is of course competent to
the creator of the power expressly to declare that it shall be
exercised by the donee only while he remains in unencumbered
possession of the estate to which the power is appendant. But
the general rule may be stated as follows ;
A power appendant may be exercised, although
the estate to w^iicli it was appendant be gone,
provided only that such exercise does not dero-
gate from the previous grant, whether voluntary
or by o^^eration of law, of the donee of the
power [Alexander v. Mills, 6 Ch. 124).
In that case trustees of settled estates had a power of sale, to
be exercised at the request and direction of H., the tenant for
life, who was also entitled to the ultimate reversion in fee. H.
made an absolute conveyance of all his estate and interest for
value. It was held that H.'s power to consent was not extin-
guished by the absolute alienation of his life estate, but could
be still exercised with the concuiTence of the alienee.
In Warburton v. Farn (16 Sim. 625) the facts were the same
as those in Alexander v. 3Iilk, the only difference being that the
power of consenting to a sale was expressly reserved, and the
assent of the pui'chaser of the life estate thereby made unneces-
sary.
In Lonrj v. Uank'm (Sug. Pow. 895), tenant for life with
power of leasing aliened his life estate by way of security,
reserving the right to exercise his leasing power with the con-
sent of the alienees. The House of Lords held that the power
could be validly exercised.
EXTINGUISHMENT AND SUSPENSION OF POWERS.
21
In UoMsicorth v. Goose (29 B. Ill), a power of consenting to Bankruptcy.
a sale, similar to that in Alexander v, Mills^ was held to be not
Gxtinguished by tho bankruptcy of the tenant for life, but that
a good title could bo made with tho assent of the bankrupt and
his assignees.
In Eisdell v. Jlammci'slcy (31 B. 255), tho decision went a
step farther, for the assignees in bankruptcy had sold the life
interest, and it was held that, with the consent of the persons in
whom such life interest had vested, a good title could be made ;
(and see Simpson v. Bcdhiirst, 5 Ch. 193 ; Lord Leiyh v. Ash-
burton, 11 B. 470 ; Lcclere v. Beaudry, L. E. 5 P. C. 3G3). In
Re Cooper, Cooper v. Slight {27 Ch. D. 565), funds were be-
queathed to trustees on trust for A. for life, and after his death
for B. (an infant), and the trastees had power to advance B.
a portion of his share with A.'s consent. A. became bankrupt,
and it was held that the powers were not extinguished, but
could only bo exercised with tho consent of tho trustee in
bankruptcy under the direction of the Court of Bankruptcy.
And as powers appendant are not affected by the absolute Conditional
alienation of the life estate to which they attach, a fortiori they
aro not affected by a conditional alienation thereof, as by mort-
gage {Tyrrell v. Mars/i, 3 Bing. 31 ; Walmesly v. Butteru-orth,
5 Sweet's Bythewood, 168).
Powers of management are given for the benefit of the inherit- Powers of
n , . •!• ii £ 1 • management,
ance ; e.g., that of leasing, as providing tho means ot keeping
the land in a proper state of cultivation; that of sale, as
enabling the tenant for life to dispose of outlying property, or
of the whole estate, if the circumstances of the family prove
unequal to the luxui-y of a landed property. Tho security of
the remaindermen depends on the conditions and qualifications
under which tho power is to bo executed, and not upon the
estate or interest of the person by whom it is to be executed.
It appears, therefore, to make no difference whether the power
is one of leasing or of sale ; in either case it is exerciseable
generally after alienation; and a power of appointing new
trustees can be exercised by the donee after alienation without
the concun-ence of the grantee {Ifardahr v. Moor/iouse, 26 Ch.
22
A CONCISE TREATISE ON POWERS.
Po-wcrs of
appointment
governed
by same
principles.
D. 417). It mnv here be added that the statutory powers given
to a tenant for life hy the Settled Land Act are not capable of
a.^signment or release, and remain exerciseable by the tenant for
life after and notwithstanding any assignment, by operation of
law or otherwise, of his estate or interest under the settlement,
but without prejudice to the rights of the assignees for value of
the tenant for life (S. L. A. 1882, s. 50).
4. The powers in the cases cited in the foregoing paragraph
were powers of management ; e.g., sale and leasing. The same
principles apply to powers of appointment, whether general or
special. The donee cannot affect any prior alienation of his
own estate, whether by his own act or by law ; but his power
remains operative so far as it can divest, or take effect out of,
any estate other than the estate which has been aliened {Re
Sprague, MUey v. Caj^c, 43 L. T. 236).
In Doe V. Britain (2 B. & Aid. 93), lands stood limited to the
usual uses to bar dower in favour of A., the ultimate use being
to A. and his heirs. A. committed an act of bankruptcy on
which he was afterwards declared bankrupt, and then executed
his power in favour of the defendant, who had notice of his
bankruptcy. The Court held that the assignees in the bank-
ruptcy could recover in ejectment against the appointee, and
that the power was gone. It would probably now be held in a
similar case that the power was not extinguished, but could not
be exercised by the bankrupt in derogation of the estate which
had passed out of him on the bankruptcy ; and there seems to
be no reason why under the present law the trustee should not
exercise the power; (see Bankruptcy Act, 1883, s. 44, subs.
2 (ii.) ).
In Jones v. Wimcood (10 Sim. 150), an estate was settled to
such uses as A. and his wife should jointly appoint, and in
default, to the use of A. for life, with remainder to the use of
his wife for life, with remainder to the use of the sons of A.
successively in tail, with remainder to the use of the daughters
of A. as tenants in common in tail, with remainder to the use of
A. and his heirs. In 1824, A. conveyed all his estate to his
provisional assignee under the Insolvent Debtors Act ; and in
EXTINGUISHMENT AND SUSPENSION OF POWERS. 23
1828 joined with his wife in appointing under their joint power
to trustees in fee in trust for sale. A suit for specific perform-
ance of a contract for sale made by the tnistocs was coramonced,
and a case was sent to tlie Court of Exchequer on two points,
viz., (1) whether the power was destroyed by the conveyance to
the assignee; and (2), if not, what estate passed under tlie
appointment of 1828. The Court certified that the power was
not destroyed, but was well executed so as to convey the estate
for life of the wife and the estates tail of the children (p. 156) ;
or, in other words, that the appointment defeated those estates,
and the appointees took the estate appointed to them dm-ing such
time as those estates, if not defeated, would have cndm-ed (Sug.
Pow. 78). The Y.-C. confirmed this certificate, and decreed
specific performance.
This case must be taken to have overruled Badhani v. Moo (1 Badham v.
JJ^€€ over-
M. & K. 32 ; 7 Bing. 695). In that case lands stood limited to ruled.
the use of A. for life, with power to appoint to any one or more
of his sons in fee or otherwise, and, in default of appointment, to
the use of his first and other sons in tail, with remainder to A.
in fee. A. became bankrupt, and subsequently appointed to his
eldest son in fee. The Court of Common Pleas and Sir John
Leach held the appointment bad, not because the power was
extinguished, but because the particular limitations made by
the appointment could not have been valid if introduced into
the original deed creating the power — a ground which is
untenable (see 10 Sim, 163).
In Ilole V. EhcoU (2 Keen, 444 ; 4 M. & Cr. 187), lands were
limited to the use of the husband. A., for life, with remainder
to trustees diu-ing the life of A. to preserve contingent re-
mainders, with remainder (subject to a rent-charge and term) to
the use of such children of the mamage as husband and wife
should jointly appoint, and, in default, as the sm-vivor should
appoint ; and, in default, to the use of the issue of the marriage
living at the death of the survivor; with remainder to the
husband in fee. The husband became banki-upt, and subse-
quently he and his wife appointed. The wife sm-vived her
husband, and thereupon the contingent remainders to the
24
A CONCISE TREATISE ON POWERS.
Acts of person
entitled in
default im-
imitcrial.
Po^rers of
advancement
governed
by same
principles.
EfPect of
marriage on
such powers.
cliilcben failed for want of a particular estate to support them.
The joint appointment was consequently bad, for the only-
estates under the settlement which it could operate to divest, or
out of which it could take cifect, were the life estate and
remainder in fee of A., and these had passed to his assignee in
banki-uptcy, and could not be affected by any subsequent dealing
of his.
It is, of course, clear that a power of ajipointment is not
affected by the bankruptcy of any person entitled in default of
aj)pointment ; e.g., A.'s power of appointment over property
which, in default of appointment, is given to B., cannot be
affected by anything that B. can do {Lord v. Bunn, 2 Y, & C.
C. C. 98 ; Chambers v. Smith, 3 Ap. Ca. 795 ; and see Ee
Vizard, 1 Ch. 588).
The same principles apply to powers of advancement of
personal estate which, although not technically appendant, may
nevertheless take effect out of the appointor's life interest. A
tenant for life, who has power to direct or consent to advance-
ments to his children during his life of the portions to which
they will be entitled after his death, cannot after parting with
his life estate direct or consent to an advancement, so as to
prejudice his assignee ; for that would be to derogate from his
own assignment {Koel v. Henley, M'Cl. & Y. 302 ; Nottidge v.
Green, 33 L. T. 220 ; Cooper v. Slight, 27 Ch. D. 565).
But it lias been held to be otherwise, in the case of a married
woman as against her husband and an assignee from herself
and her husband. In Whitmarsh v. Robertson (1 Coll. 570), A.
was entitled under a settlement to a life interest in trust funds,
not settled to her separate use ; and tlie trustees had power with
her consent during her life to advance part of the fund, to
which her four children were entitled at her death. A. married
without any settlement, and joined with her husband in assign-
ing her life interest. The trustees afterwards advanced part of
the fund with A.'s consent ; and it was held that the power of
advancement was well executed. The coiTCctness of this
decision seems open to question. Tlie wife's life interest vested
on her marriage in her husband, subject to any equity to a
EXTINGUISHMENT AND SUSPENSION OF POWERS. 25
Bettlemcnt which she might establish. The ground of tlio
V.-C.'s opinion that she could exercise her power without and
against the consent of her husband does not appear. It is true
that the man-iage did not interfere with the power, but the
alienation of her interest caused by the marriage prevented her
exercise of it so as to affect that interest.
It is submitted that a power of advancement is suspended or Effect of
destroyed by the mortgage, alienation, or bankruptcy of the object of such
object. The power of advancement is merely a power to make, P^^^^^-
for the benefit of the object, a payment in anticipation of the
portion, vested or contingent, of such object in the trust
property. If, by reason of events subsequent to the creation of
the power, the object thereof cannot become ultimately entitled
to any portion of the trust propert}', it follows that nothing caa
be paid to him in anticipation of such portion.
A discretionary power given to trustees to pay or not to pay Effect of
income to a legatee for life determines by the bankruptcy of the oi'dScJe-'^^
legatee ; and the income vests in the trustee in bankruptcy, *i°°r^JJte^esl^''''
unless the trustees are authorized to apply or accumulate such
part of the income as they do not pay to the legatee for the
benefit of third persons {Picrcij v. Roberts, 1 M. & K. 4 ;
Snowdon v. Dalc-s, G Sim. 524). If such power authorizes the
trustees to exclude the bankrupt altogether, it is not affected by
the bankruptcy; but so much of the property as is actually
allocated to the bankrupt vests in the trustee in bankruptcy
{Lord V. Biinu, 2 Y. & C. C. C. 98 ; Holmes v. Pennei/, 3 K. & J.
90 ; FiC Coe, 4 ibid. 199), and cf. Be Coleman, Henry v. f:ifrong,
39 Ch. D. 443. Where, however, the trustees' power did
not authorize them to exclude the bankrupt altogether, the
Court has dii-ected an inquiry what is proper to be appKed for
the benefit of the other objects of the power, and has given
the residue to the trustee in bankruptcy ( Wallaee v. Anderson,
16 B. 533 ; Pafje v. Waij, 3 B. 20 ; Kearsleif v. WoodcocL; 3
Hare, 185 ; Carr v. Liring, 28 B. 644 ; but see contra, God-
den v. Croir/iurst, 10 Sim. 642, where the Y.-C. pointed out
that the power did not authorize the exclusion of the bank-
rupt; see Be London, 40 L. J. Ch. 370). In Wallace v.
Anderson, above cited, an account was dii-ected what amount
26
A CONCISE TREATISE ON POWERS.
Does tlie
grant of a
term of years
suspend a
power of
leasing ?
Question
whether a
power is para-
mount to an
estate tail
or not.
had been properly applied l\y the trustees ; and an account was
directed against them on that footing ; and see lie As/ih//,
Rr parte WrcfonJ (1892, 1 0. B. 872). It is submitted, how-
ever, that the question is, not whether the power authorizes
exclusion or not, but whether the trustees' discretion is absolute
or whether a trust is imposed on them which they are bound to
execute. Assuming bona fidea, there seems to be no reason,
upon the construction of any of the powers in the above-cited
cases, why the trustees should not have appointed a merely
illusory share to the bankrupt ; and, if so, they need now
appoint no share at all (37 & 38 Yict. c. 37). In such a case
— /. €., where the power is one of appointment left to the
uncontrolled discretion of the donee — the Court cannot inter-
fere. If, however, no discretion or a partial discretion only
be given, and a trust created, the Court can, consistently -with
principle, interfere to execute such trust.
5. Lord St. Leonards (Pow. pp. 54 — 56) cites the case of
Bring Joe v, Goodson (4 Bing. N. C. 726), as establishing " that
there is no absolute suspension of a power of leasing by the
grant of a term of years out of the estate of the tenant for life ;
but that, although no right is reserved by the tenant for life to
execute his power as between him and his grantee, he may
exercise it, and if his life estate is overreached by the exercise of
another power in another person, the grant by him shares the
same fate, and the lease under his power, and the estate under
the other power, operate just as if they had been created in that
succession by the creator of the power."
6. It is often a question of some difficulty whether a power
is or is not paramount to an existing estate tail, and, accord-
ingly, whether it is destroyed or not by a disentailing deed or a
recovery.
Such a power is nothing more than a modification of an use.
The settlor, instead of declaring the uses himself, directs that
another person shall have a power of declaring to what uses the
estate shall remain ; and when the power is executed, it is the same
thing as if the settlor himself had declared the uses. If, therefore,
there be a limitation to the use of A. for life, with remainder to B.
in tail, and a power of sale be given to trustees with A.'s consent,
EXTINGUISHMENT AND SUSPENSION OF POWERS. 27
tlie uses to bo declarod by the trustees on the execution of tlu-ir
power are to bo taken as if they had been inserted in tho instru-
ment creating the power. If, therefore, 13. were to suffer a
recovery, or to execute a disentailing assurance without A.'s
concurrence, the power of sale would bo unaffected thereby
{Roper V. JInlUfaXy 8 Taunt. 845) ; the same would be the case if
a recovery was suffered or assurance executed, and the power
was expressly reserved {Harrison v. Hound , 2 D. M. & Gr. 100 ;
Be Wriijld and Marshall, 28 Ch. D. O.'i) ; or if it was clearly the
inteution of tho parties that it should be reserved {Hill v.
PrdcJtard, Kay, 394). And so, too, although the whole estate
of tho donee of the power be conveyed away, if it be by way of
resettlement and the prior uses are reliraited, and tho prior
powers of sale and oxchaugo saved and confinned, although
present powers of sale and exchange are reserved by the new
settlement to different persons (Sug. Pow. 71).
In the cases of Roper v. HaJlifa.c and Hill v. Prife//ard, the
power was held to be antecedent and paramount to the estate
tail. It was to be exercised in both cases with the consent of
the tenant for life, and therefore no act of the tenant in tail
could bar the power. In the former case the tenant in tail only
was vouched ; in the latter, the tenant for life joined, but, on the
words of the disentailing deed, was held not to have intended to
give up her power.
It appears that if any case was to arise in which the power
was strictly a mere shifting use. Lord St. Leonards' argument
in Roper v, Hallifax (Sug. Pow. 901) would prevail, and it would
be held to be extinguished. For example : if A. were tenant in
tail in possession under a settlement which contained a power
of sale to trustees, and he acquii'ed the fee by executing a disen-
tailing assm-ance, the power woidd be gone, not only on the above
ground, but also because (as after stated) a power cannot exist
any longer than the purposes for which it was created require.
7. A power in gross is independent of the donee's Powers in
estate, and may be exercised at any time, as well
gross.
28 A CONCISE TREATISE ON POWERS.
after as during the continuance of his interest
(Parsons y. Parsons^ 9 Mod. 4G4).
In lie Dunne' a Trusts (5 L. E. Ir. 7G), a testator left the
residue of liis property to liis children in certain proportions,
the share of M., one of his sons, to be subject as thereinafter
provided ; tlic sons' shares to become vested at 23, subject as
aforesaid as to M.'s share. As to M.'s share, the testator
empowered his wife in her uncontrolled discretion, by deed or wall,
to declare that M. should not take more than £1,000 for his
share ; and, in the event of the exercise of the power, he gave
the balance of M.'s share over. After M. had attained 23, his
mother exercised the power of reduction ; and it was held a good
exercise of the power, notwithstanding that the share had become
vested.
The same point may also arise with reference to powers of
revocation, after portions have become in terms vested. Thus,
in Rereshy v. Ncu-Iand (2 P. W. 93), where tliere was a term to
raise portions, to be paid at the daughters' marriages, with a
power for the father, with the consent of the trustees, to revoke
all the uses of the settlement ; Lord Macclesfield, although not
deciding the case on this ground, said (p. 101), " With respect
to the power of revocation, it is still a subsisting power, and
consequently suspends and prevents the portion from being as
yet payable, because the father, by consent of the trustees, may
yet revoke ; lie may revoke at any time before the portion is
raised and paid;" (and see Slcouian v. Mngrath, 8 Ir. Ch. R. at
p. 207, per Blackbm-ne, L. J.).
But the power may be extinguished by necessary implication
arising from tlie words of the instrument by which it is created
(Sug. Pow. 79).
Wten ex- In Jlamcll V. HdHu-eJl (2 D. F. & J. 450) a fund was settled
trnguib e . .^ \YV&i for the husband for life, or until (amongst other things)
insolvency, with remainder to his wife for life, remainder to
their children or issue, as the survivor should appoint, and in
default, " from and after the several deceases of the husband
and wife, or the sooner determination of the interests thereinbefore
EXTINGUISHMENT AND SUSPENSION OF POWERS. 29
limited to them respect ivcli/, in trust for the cliildren then living,
and the issue of deceased children then living, the shares of such
as should have attained 21 to bcimmediatel// paid and transferred to
them, and the sliares of such as should not then have attained the
age of 21 years to be immediately paid and transferred to tliem
on attaining that age." The husband's interest ceased through
his insolvency, and his wife afterwards died. Lord Campbell
(affirming the Master of the Eolls) said that he quite agreed to
the position that the husband's power of appointment was not
extinguished on his insolvency. It was a power in gross, and
could have been exercised at any time, not only while his own
interest continued, but while the interest of the wife continued.
But he considered there was a clear indication in the settlement
that the power in question was to be exercised while the interest
of the husband or of the vdie continued. He was much struck
(apparently) with the question, what was to be done with the
fund until appointment ? It is submitted tliat this is an unsatis-
factory ground of decision ; the case, however, does not profess
to limit the generality of the rule above stated, and would
probably only be followed under circumstances precisely similar.
Lord St. Leonards disapproves of it (Pow. pp. 201-2).
In Wickham v. Wing (2 H. & M. 436) the subject of the power Not extin-
was real estate, and the power had been exercised after the ^"^
appointor's estate had determined by his bankruptcy. This
appointment was upheld. The devise was to trustees on trust to
pay the rents and profits to T. P. W. for life, or until he should
become bankrupt or insolvent ; and from and after his decease,
or from and immediately after his bankruptcy or insolvency, to
the use of the children of T. P. W. as he should appoint, and in
default to all the children equally. Lord Hatherley (then Y.-C.)
said that the case of Hasicell v. JIasiccll was peculiar, but it
was decided on the special words of the settlement. The settle-
ment, which related to personalty only, contained two inconsistent
directions : one, that the survivor of husband and wife should
have power to appoint the fund ; and the other, that the fund
should be paid over immediately the children should attain 21 ;
and the Court had to choose between these two inconsistent
30 A CONCISE TREATISE ON ^O^yERS.
directions. He also distinguished the case before him on the
ground that tlie subject-matter was real estate ; but it is
doubtful if there is any substantial distinction between cases
where realty and cases where personalty is the subject-matter of
the jiower.
In i?(' Sfoiie (3 I. K. Eq. 621), a testator gave his daughter a
life estate in lands, and devised them after her death among her
childi-en, as she should by deed or will appoint. He also
declared that if his daughter should ahen or encumber her share,
it should go to the persons next in remainder as if she were
actually dead. She mortgaged her life estate, and subsequently
executed her power of appointment. The Court distinguished
HaswcU V. IlaHu-eU on the ground that the power was expressly
given to be exercised during the continuance of the estates
given, that is, either as of necessity during the life estates, or
during the existence of the estate otherwise determinable,
because in very terms it provided that on the sooner determina-
tion the property should go as then appointed, to the extent
appointed, and otherwise, as if no appointment were made. In
the case before the Court, the power being expressly given in
general terms, which could be exercised during the entire life of
the donee, and the exercise of which was not by any words
limited to the period of her enjoyment of the estate, it was held
that the mere acceleration of the estates in remainder did not
defeat that power.
In ReAyJicin (16 Eq. 585 ; 21 W. R. 864), a testator devised
his interest in certain colliery leases and lands to trustees on
trust (among other things) for his son Herbert dmung life or
until bankruptcy or insolvency ; and on his death, bankruptcy,
or insolvency, to pay and apply the same for all or any of his
children as he should appoint, and in default for the children
equally. Y.-C. Wickens considered that the power (which was
a power to direct the payment of the rents of leaseholds as
received, and which, so far, resembled Wick ham v. Wing .moxo.
nearly than Ilamell v. Harwell) must be considered as unaffected
by the insolvency, and that it was therefore a subsisting power ;
(and see Re Kelly, Wed v. Turner, 59 L. T. 494).
EXTINGUISHMENT AND SUSPENSION OF POWERS. 31
On tho wliolo, tho rulo may bo taken to bo as stated above in R -suit of
cases of powers in gross proper, — i.e., powers relating to real
estate. And tho same rule may Lo taken to apply to powers
extending over cbattcls r(>al and personal estate, except in a case
like ILtsH-ell v. Ilastcc//, where there are inconsistent directions.
The continued existence of the power leads to the inconvenience
that persons may be entitled to a vested interest in possession
subject to a divesting clause. It is settled law, in tlio analogous
case of a legacy subject to a divesting clause, that the legatee is
entitled to immediate payment without giving security to refund
if the event happens upon whidi the legacy is divested (Roper
Leg. 864:). But it has not been decided whether the same rule
applies to a vested share, subject to be divested by the exercise
of a power ; and until the Courts shall have decided the point,
trustees cannot safely ])a.y over a fund subject to such a power.
8. A power given to the owner of a particular estate. Powers ex-
whether appendant or in gross, is extinguished by by merger
his acquisition of the fee-simple ( Cross v. Hudson,
3 Bro. C. C. 30).
But equity will interfere to effectuate the intention of tho
parties in certain cases, by making the intent of the person pur-
porting to execute the power bear out the disposition he has
affected to make {ibid.).
In Mortlock v. Buller (10 Yes. 292), the power of trustees for
sale under a settlement was at law extinguished by the tenant
for life's acquisition of the fee. Lord Eldon said, that if the
purchaser had entered into a contract with the trustees with the
approbation of the tenant for life according to the deed, the
contract, once entered into and having bound the estate, should
bo made good by those who had got an interest, by the effect of
their interest, if not by the authority of the trustees.
When the owner of the particular estate becomes seised in fee. When
the powers which he possessed over that estate cannot be any eustoiued.
longer exercised, not so much on the ground that they have
32
A CONCISE TEEATISE ON POWERS.
Merger of
charge.
become merged in the fee, as because they were not intended to
continue longer than is required for the purposes of the settle-
ment ; it follows therefore from this (as well as from the principle
that appointments under powers which fail shall be made good
out of the appointor's estate in the property appointed), that an
appointment made under a power will be upheld in equity,
although the donee thereof has acquired the fee since he made
the appointment.
In Sing v. Leslie {2 H. & M. 68), estates were settled on A.
for life, with remainder to B. for life, with remainders over for
life and in tail, with an ultimate remainder to B. in fee ; the
settlement contained a power for every tenant for life, either
before or when he should become entitled to the actual freehold,
to charge the estate, but any charge by a tenant for life was to be
inoperative, unless he or his issue afterwards became so entitled.
B. by his will, in exercise of that power and of every other power
enabling him, charged the estate, and disposed of his reversion ;
B. died without issue in A.'s lifetime. The intermediate estates
having failed, and B. being entitled to the reversion in fee, the
charges were established against his devisee out of his estate.
In the events that happened, B.'s power never arose ; if he had
survived A., still the power would not have been in existence, for
he would have had the fee.
In the converse case, when a power of charging has been
exercised in favour of an object who afterwards becomes entitled
in fee, the charge will merge, unless the person entitled to it
keep it alive ; but he will be presumed to intend to keep it
alive, if it is for his interest {ibid. ; Grice v. Shaw, 10 Ha. 7G).
Powers ex-
tinct when
purposes
completed.
0. A power, wliether appendant or in gross, is abso-
lutely extinguished when all the purposes for
which it was originally created have ceased to
exist {Wheate v. Hall, 17 Ves. SO).
In Wolley v. Jcnldm (23 B. 53, aff. 5 W. E. 281), the M. E.
said that a power of sale and exchange in a settlement ceased to
exist after the union of the life estate with the reversion in fee ;
EXTINGUISHMENT AND SUSPENSION OF POWERS. 33
tliat such a power existed only for the purpose of the settlement,
and during the time when the uses of the settlement were in
existence.
But the object for which the power is given is in each case
to be considered.
In Troivvr v. Kn'ujhtkij (G Madd. l-'U), where there was a
devise in trust in undivided moieties with a power of sale dur'uuj
the continuance of the trust, and one moiety vested absolutely, it
was held that the power of sale must have been intended to
continue until there were owners competent to deal with the
whole estate.
In Wood\. White (4 M. & C. 460), where the property was
devised in fifths, and there was a power of sale with a dii-ection
that it should continue as to such parts, if any, of the premises
as should be subject to continuing trusts, it was held that the
power had determined as to one fifth, the trusts of which had
been exhausted, there being no necessity that the power as
to the one share should continue in order to preserve it for the
benefit of the other shares, as in Tronrr v. Knightlei/.
It is to a great extent a question of intention in each case, to Question of
1 • J. i- i.1, iuteutiou ;
be determined on the construction of the mstrument creating the
power, and having due regard to the rule against perpetuities
{Re Cotton, 19 Ch. D. 624). But, speaking generally, the power
subsists, until all the trusts are exhausted and the whole estate
is vested in fee in possession in the person or persons entitled :
and the cii'cumstance that one person is entitled to have his
share of the fee conveyed to him, while the trusts of the other
shares are still subsisting, does not prevent the exercise of a
power of sale [Taite v. Sir instead, 26 B. 525).
If the power of sale is imlimited in point of time, some limit how far
.,.(.. J p ii 1 affected by
must be found in order to avoid an mtrmgement ot tlie rule r^ie against
against perpetuity ; and this limit, in wills and settlements peiretuity ;
framed in the ordinary way, is the period when the absolute
interests vest in possession {Laufsbcr// v. Co/licr, 2 K. & J. 709;
Suff. Pow. 859). But it does not follow that a power of sale yaUd exercise
° n T • 1 i. . 1 of power after
which exceeds that period, if it be limited so as to avoid vesting of
infringing the rule against perpetuity, is void. Thus, a devise ^''
34
A CONCISE TREATISE ON POWEKS.
Power
must not be
repugnant.
Exercise of
power by-
mortgagee
after acquir-
ing title by
Statute of
Limitations.
Trust for sale
distinguished
from power.
Disability of
beneficiaries
becoming so
by appoiut-
ment.
to trustees in trust for A. for life, and after his death for B. and
C, adults, mtli a power of sale for the purpose of division ;
or a devise to trustees to divide among several adult persons
named, with a power of sale for the purpose of division, would
create a valid power; subject to this, that it must be exercised
within a reasonable time and before the beneficiaries have called
on the trustees to convey {per Jessel, M.R., Peters v. Lewes, ^c,
li. Co., 18 Ch. D. at p. 434). In Ee Cotton (19 Ch. D. 624),
the de\ise was to trustees on trust for the testator's widow for
life, with remainder for his eight children equally. The will
contained elaborate powers of managing, raising money by
mortgage, and of sale, during a period commencing on the
death of the testator and ending with the expiration of twenty-
one years after the death of the survivor of the persons named
in his will. It was held by Fry, J,, that the power could be
exercised after the death of the widow and after all the
children had attained twenty-one.
It is conceived, however, that a mere power to B. to sell an
estate devised to A., an adult, in fee would be repugnant and
void, on the principles laid down in Saunders v. Vautier, Cr. &
Ph. 240 ; (and see Re Roslicr, 26 Ch. D. 801).
A mortgagee who has been in possession for a period long
enough to give him an absolute title to the fee under the
Statute of Limitations, can still sell under the power of sale in
his mortgage {Re Alison, Johnson v. Monnsey, 11 Ch. D. 284).
The case of a trust for sale must be distinguished from the
case of a mere power. A trust is imperative, and clianges the
nature of the estate ; and the beneficiaries are entitled only to
a share of the proceeds, not to the estate itself {Bujcjs v. Peacock,
20 Ch. D. 200 ; 22 ihicl 284 ; Re Tiveedie, 27 Ch. D. 315).
Such trusts have never been considered obnoxious to the rule
against perpetuities {ibid.).
It makes no difference that the interests of the persons whose
disability occasions the need of using the power arise by virtue
of an appointment made in execution of a power in the original
instrument, and were not contained in such original instrument.
In such a case the limitations under the appointment are to be
EXTINGUISHMEXT AND SUSPENSION OF POWERS. 35
considered as if they had been inserted in tlie original settle-
ment.
In Re Brown (10 Eq. 349), lands were, by marriage settle-
ment, conveyed to the use of trustees and their heirs upon
trusts for the husband and wife for life, and in default (which
happened) of cliildren of the marriage, for the children of A. as
the wife should appoint. The settlement contained the usual
power of sale. The wife appointed to the trustees and their
heirs upon trust (subject to the life estates) as to four-fifths for
B., C, D., and E., four of the five children of A., and their
heirs as tenants in common, and as to one-fiftli for F., tlie fifth
child of A., for life with remainder over. F. was of unsound
mind, not so found. B., C, D., E., and F. were all t)i esse at
the date of the settlement, and were still living, and all except
F. sui juris. Y.-C. James said : " There is great force in the
argument that directly the property gets into the hands of
persons who are able to dispose of it absolutely, the power of
sale must be gone. It is like the case of a power which is
destructible directly the property vests in a tenant in tail in
possession, who can, if he pleases, dispose of the whole estate.
But I must consider the limitations under this appointment as
if they had been inserted in the original settlement. That is a
safe general rule to act upon, and it must be carried out
whether for good or for e\al. If they had been inserted in the
original settlement, I think there is sufficient authority to show
that as long as there is a settled estate in any part of the
property subsisting, so long does the power remain in exist-
ence."
10. A power is not necessarily extinguished by having Power not
been once exercised ; but may be exercised by extinct by
, . ~, . being eier-
different appointments at dmerent times. cised.
Some powers from their nature are necessarily exhausted by a Powers of
single execution : e.g., a power of sale, where the whole subject- jointimng.
matter of the power is removed by the execution of the power
from the operation thereof. Others are necessarily to be
u2
A CONCISE TREATISE ON POWERS.
Power exer-
ciseal)!^ "at
any time."
Power of
appointment
among
children.
Primary and
secondary
power.
Power to
lend money.
exercised from time to time, as occasion sliall arise : e. (j., it has
never been doubted that a power of leasing may be so exercised ;
and it has been held that a power to jointure may be exercised
in favour of the same wife at different times, provided that all
the executions taken together do not exceed the limits of the
power {ZoKch v. Woohton, 2 Burr. 1136 ; Ilerrcy v. Henri/,
1 Atk. 560).
In Dujrjfs' case (1 Co. Eep. 173), Christopher Digges had
power " at any time during Jtis life^'' with certain consents, to
revoke certain uses. It was resolved that he might revoke part
at one time and part at another, and so of the residue, until he
had revoked all: for the words ^^at any time" amount to as
much, and are as if he had said " from time to time as often as
he shall think good." As, if a man leases twenty acres of
wood, and grants that the lessee may fell the timber trees at any
time during the term, he may fell part at one time and part at
another ; (and see Co. Litt. 237 a) .
A power of appointment among children need not be exer-
cised uno Jlatu ; but the property may be appointed at intervals
as the exigencies of the family require. The very object of
such a power is to provide for such exigencies as they occur
{Cuninghame v. Anstndher, L. K. 2 Sc. & D. 223). In Doe v.
Milhorne (2 T. E. 721), a power to an executrix to give a
daughter "what proportion she shall think fit" was held
exerciseable at different times. It makes no difference that the
poAver is not exclusive, and that the first appointment (not
exhausting the fund) does not give a share to every object
of the power ( Wihon v. Figgott, 2 Ves. 354 ; Bristow v. Ward,
ibid. 336).
And where there is a primary power and, in default of execu-
tion thereof, a secondary power (e. g., a joint power in husband
and wife, and, in default, a power to the survivor), a partial
execution of the primary power does not prevent the exercise of
the secondary power {3Iapkton y. 3Ia2)kton, 4: Dr. 515; over-
ruling Simpson v. Paul, 2 Ed. 34).
In Versturme v. Gardiner (17 B. 338), a power to trustees to
lend from time to time any sum or sums not exceeding £2,500
EXTINGUISHMENT AND SUSPENSION OB^ POWERS. 07
to the tenant for life was held not to be exhausted by one loan
of the whole ; but after repayment the trustees could lend the
money again. And in Webster v. Boddington (IG Sim. 177;,
where tlio power was to loud any sum or sums not exceeding
£30,000, and tlie trustees lent £20,000, it was held that they
might afterwards lend the residue ; (but see Jh-oicn v. Nishctt, 1
Cox, 13). In Krantzcke v. Robinson (11 L. R. Ir. 500) trustees
of a settlement had power, at tlie request of A., to raise any
simi not exceeding £1,000, and to pay it to her. The trustees
raised atid paid £310 ; and it was held that they could after-
wards raise and pay over the balance; (and see Hdvrold v.
Han-oM, 3 Giff. 192). In Child v. Child (20 Beav. 00) trustees
were empowered to lend part of the trust funds to the husband
with the consent of the wife ; she consented to an immediate
loan, and the trustees lent and took a covenant from the
husband to repay it at the end of six months ; the money was
not called in, and the husband became bankrupt : the trustees
were held not to be liable.
If the power be alternative — c. g., to raise money by sale or Alternative
mortgage — it is submitted that the exercise of the power of by^aleor^^^^
mortgaging does not preclude the donee from afterwards mortgage,
exercising the power of sale in order to pay off the mortgage
{Omerod v. Uardmcm, 5 Ves. 722, 732) ; but this has been
doubted {Palk v. Lord Clinton, 12 Ves. 48).
A power to advance money towards effecting the promotion
of a beneficiary in the army was extinguished by the aboUtion
of purchase {Re Ward, 7 Ch. App. 727). But a power in a
settlement to withdraw funds and lay them out in the purchase
of a trade for the benefit of the husband and wife was held
exerciseable after the death of one for the benefit of the survivor
{Doorlij V. Arnold, 18 W. R. 540). A power of advancement
exerciseable during minority of coiu'se ceases when the object
attains 21 {Clarke v. Hogg, It) W. R. 617). It is, however, a
question of construction in each case, and in Pride v. Fooks
(2 Beav. 430) the power of advancement was held exerciseable
after 21, although the powers of maintenance and education
were not ; (and see Re Breed, 1 Ch. D. 226),
38 A CONCISE TREATISE ON POWERS.
A power may H. A powcr luav co-exist With tliG fee fSuo'. Pow.
eo-existwith I J V o
the fee in 93).
freeholds ;
If a man limits his estate to such uses as he shall appoint,
and in the meantime and imtil such appointment to the use of
himself and his heirs, the fee simple continues to reside in the
settlor, subject to be divested by an exercise of his power of
appointment (Co. Litt. 216 a, note ; MaundreU\. Maundrell, 10
Yes. 246).
and copy. In Glass V. Richarchon (9 Ha. 698 ; 2 D. M. & G. 658), the
question was whether, under a devise of coi-)y holds to such uses
as A. and B. should appoint, and subject to and until such
ai^pointment to A. and B. in fee, A. and B. could make a title
to a pm-chaser without being admitted. It was held that they
could, and specific performance was decreed. The defendants
contended before the Yice-Chancellor that in the case of free-
holds, the co-existence in the same party of the fee and of the
power to appoint the fee depended wholly on the Statute of
Uses ; and that, the Statute of Uses not applying to copyholds,
the power and fee could not co- exist. But this argument
assumed that, in the case of copyholds, the power and the fee
could co-exist, which could not be the case, at all events before
admittance, as the devisee takes no estate until admittance ; and
to adopt this argument would be to apply to estates not in any
manner affected by the Statute of Uses doctrines and doubts
affecting conveyances of estates operating under that statute,
and which, after what fell from Lord Eldon in Mcmndrell v.
MaundreU, the Vice-ChanceUor felt warranted in saying never
had any sohd foundation.
12. Dissolution of marriage by the Court does not
extinguish a settlement made on the marriage, or
any of the powers therein [Burton v. Sturgeon^
2 Ch. D. 318; Fitzgerald v. Chapman, 1 Ch. D.
56-3 ; overruling Jessop v. Blake, 3 Giff. 639 ;
EXTINGUISHMENT AND SUSPENSION OF POWERS. 39
Swift V. Weninan^ 10 Eq. 15, and Fussell v.
Doivdinfj^ 14 Eq. 421).
TliG Coiu't of Chancery had no jurisdiction to deprive an No effect in
adulteress whose marriage had been dissolved of any benefit ^^^cery.
under a settlement made on the marriage {Evana v. Carrington^
2 D. F. & J. 481). There is no total failure of consideration,
nor does our law inflict forfeiture as a penalty of adultery ;
although by the Statute of Westminster the Second (13 Edw. I.
st. 1, c. 34) an adulteress forfeits her dower, a husband does not
by adultery forfeit his estate by curtesy nor the wife her
jointure {Ee Walker, LI. & Gr. tcm}). Sug. 32G).
It is suggested that a decree of nullity should stand on a Nullity and
different footing. The decree of divorce declares the marriage t^^^hed.'
dissolved : the decree of nullity declares it null and void ; and
such a marriage is absolutely void ab initio, and not merely
voidable ; (see EUioft v. Gun-, 2 Phillim. 19 ; and o & 6 Will. lY.
c. 54). In cases where the marriage is either void ah initio,
or is declared void, any settlement made in consideration thereof
has a consideration that is either illegal or has failed, and ought
not, therefore, to be upheld. It must, however, be admitted
that the power to vary settlements which is conferred by 22 &
23 Yict. c. 61, s. 5 (see infra), is opposed to this view; (see
Langu-ortlti/ v. Lanfju-orthy, 11 P. D. 85 ; Rohin>ion v. Diclxenson^
3 Euss. 399 ; Chapman v. Bradley, 33 B. 61 ; 4 D. J. & S. 71 ;
Bond V. Walford, 32 Ch. D. 238).
A judicial separation does not affect the capacity of husband Judicial sepa-
and wife to execute joint powers (20 & 21 Vict. c. 85, s. 26). no effect.
By 22 & 23 Vict. c. Gl, s. 5, it is enacted : " The Court, after 22 & 23 Vict.
a final decree of nullity of marriage or dissolution of mar-
riage, may inquire into the existence of ante-nuptial and post-
nuptial settlements made on the parties whose marriage is the
subject of the decree, and may make such orders with reference
to the application of the whole or a portion of the property
settled, either for the benefit of the children of the marriage or
of their respective parents, as to the Court shall seem fit." The
40 A CONCISE TREATISE ON POWERS.
Act, it will bo seen, extends to cases of nullity as well as of
divorce (see LangicoriJi)/ v. Langicortlty, 11 P. D. 85).
Extent of The Court has declined to interfere with a power of appoint-
thTcourt. ment among children, vested in the wife {Davies v. Davies, 37
L. J. r. & M. 17 ; Scatle v. Scatle, 30 ibid. 216) ; and in Hope
V. Eojye (L. R. 3 P. & D. 226) the Coui-t doubted whether the
section authorized an interference with the power of appointing
new trustees. But in Maudalay v. Maiuhlay (2 P. D. 256) the
Judge Ordinary varied the power of the guilty party of ap-
pointing new trustees, and his interest in, and power of appoint-
ment over, the fund brought into settlement by the innocent
party; (see, too, Oppenhcim v. Oppoi/ieim, 9 P. D. 60).
Issue ncccs- The Court had no jurisdiction to interfere under the Act
SIrt°jSi7- above referred to, unless there was issue of the marriage
fLfsectiSI^" li^-ing at the date of the appHcation to the Court {Gra/mm v.
Graham, L. R. 1 P. & D. 711 ; Corrance v. Corrance, ibid. 495).
41 & 42 Vict. But it is now enacted by 41 & 42 Vict. c. 19, s. 8, that the
c. 19, 8. 3. Court may exercise the powers vested in it by 22 & 23 Yict.
c. 61, 8. 5, notwithstanding that there are no children of the
man-iage. In AmdeUy. Ansdcll (5 P. D. 138), the decree nisi
was made before, the decree absolute after, the Act came into
force ; and the Act was held to be retrospective ; (but see
Yglesias v. Ygksias, 4 P. D. 71, where the head-note appears to
be inaccurate).
Powers of Tlie powers of the Court under these statutes, and the prin-
pXdpies of ciples on which such powers should be exercised, have been fully
their exercise, considered in the recent case of TFignei/Y. Wigney (7 P. D. 177;
ibid. 228). The Court of Appeal held that the conduct of the
parties might properly be taken into consideration in determin-
ing the provision to be made for them respectively ; and that
the judge had an absolute discretion as to the provisions to be
made. But they made provision for the payment, out of the
income given to the wife, of the unsecm-ed debts incmTed by
the husband for the joint establishment ; and also preserved the
rights of the husband's mortgagees prior to the presentation
of the petition for divorce, which had been preserved by the
President in his order. In the second case (7 P. D. 228), the
EXTINGUISHMENT AND SUSPENSION OF TOWERS. 41
President upheld a charge given by the guilty husband to his
solicitors on the day ou wliich the divorce petition was heard.
The decision was based on general principles affecting the mode
of exercising the discretion of the Court (p. 23'^) ; but the
judge expressed his opinion that he had the power, if he thought
fit, to aifcct the rights of the mortgagees.
On the cases as at present decided, it may be taken that the Result of the
Court will not affect by its order the rights of tliird persons, the point,
created before the presentation of the petition, or possibly before
the decree nisi ; and it is submitted tliat, notwithstanding the
dictum of tlie President in Wi<jnci/ v. Wiyneij, above mentioned,
it is still open to question whether a sale or mortgage, made or
created before the presentation of the petition to vary (which
cannot be until after the docroo absolute), can be impeached or
set aside by the Com-t. The President decided in the last-
named case that, until the presentation of the petition to vary,
there was no //s pendens ; and if this be so, it is submitted that
there is nothing to affect or bind a pm^chaser, and that the
analogy of assignments of personalty by a prisoner before
conviction, which was relied on in the argument, is complete ;
(see, too, Paul v. Paul, L. E. 2 P. & D. 96).
It may here be added that the provisions of tlie Divorce Act Power in
(20 & 21 Vict. c. 8-j, s. 57), enabling divorced persons to marry children exer-
again, and which may be thought to authorize the re-marriage "^^^^^® ^^^^
of the parties, have been held not to prevent the donee of
a power of appointment in default of children from exercising
the power so as to acquu'e an immediate right of payment, after
decree for divorce, in a case where there was no child of the
marriage {Bond v. Taylor, 2 J. & H. 473).
13. A decree for administration docs not extinguish Efifectof
administra-
or suspend powers affecting the property- to which tio^^ decree,
the action relates ; but powers of management, as
distinguished from powers of appointment; can
42
A CONCISE TREATISE ON POWERS.
be exercised thereafter only with the sanction of
the Court.
On powers of
management,
and of ap-
pointment.
Principle on
"wliich the
Court acts.
The donee of the power appoints, and the Coiirt sanctions or
disapproves {lie Gadd, 23 Ch. D. 134).
Powers of management — e. (/., powers of sale, leasing, invest-
ment, and appointment of new trustees — cannot, after decree,
be exercised without the sanction of the Court, and the Court
^\-ill see that they are properly exercised. This, however, does
not apply to the statutory power of sale given to a tenant for
life by the Settled Land Act {Cardigan v. Curzon-Hou'e, 30 Ch.
D. 531). But powers of appointment — /. e., powers that are
arbitrary as to their execution or non-execution, and which
affect the distribution (not the management) of property — are
exerciseable after the institution of an action, as well after
as before decree, without the necessity of any application to
the Court {SiUihourne v. Neicport, 1 K. & J. 602). And the
Court will not, as a general rule, control the donee's dis-
cretion in tlie exercise of powers of management (see Re
Gadd, 23 Ch. D. 134; Bethell v. Abraham, 17 Eq. 24,
where the power was one of investment; A.-G. v. Clack, 1 B.
467, and Webb v. Lord Shaftesbury, 7 Yes. 480, in both of
which the power was to appoint new trustees ; Cafe v. Bent,
3 Hare, 245, where the power was to appoint new trustees and
invest). In Walker v. Smalhvood (Ambl. 676), the bill was by
creditors for the sale of an estate to pay debts ; and all parties
had put in their answers and submitted to the jurisdiction.
The Court held that the heh-at-law or devisee was constituted a
trustee for the creditors, and had, by putting in an answer,
submitted to a sale by the Court, and that no sale could be
made except by the Court. Mitchelson v. Piper (8 Sim. 64)
was a case of payment of debts by an executor ; and Widdowson
V. Buck (2 Mer. 494), one of investment by executors.
The principle is, that where a power, which is purely discre-
tionary, is given to trustees, the Court cannot exercise such
power or comjjel the tnistees to exercise such power in any
particular manner, but can restrain them from exercising it in
EXTINGUISHMENT AND SUSPENSION OF POWERS. 43
an improper manner. If, however, there is a duty coupled with
the power, then the Court can compel the trustees to perform
that duty ; (see Nickismi v. Cockill, 'i D. J. & S. 622 ; Gishonie
V. Gisborne, 2 App. Ca. 300 ; Tempid v. Lord Camoijs, 21
Ch. D. 571 ; Re Gadcl, 23 Ch. D. 134 ; Re Courtier, 34 Ch.
D. 13G).
The power of appointing trustees for the purposes of the Tower of ^
Settled Land Act, 1882, created by sect. 38 of the Act, is given trustee-sunder
to the Court, not to the tenant for life ; and the same principle, i882.
therefore, docs not apply to appointments of trustees under that
section ; but the Court exercises a judicial discretion in making
the appointment. Thus, in Re Carr (19 Dec. 1887), Stirling, J.,
in chambers, refused to appoint the nominees of the tenant for
life where there were trustees of tlie will abeady existing, who
were ready and willing to act, and against whom no allegation
was made ; (and see Wheehcright v. Walker, 23 Ch. D. 752 ; Re
Kemp, 24 ibid. 485 ; Re Knoides, 27 ibid. 707).
The decree does not extinguish the powers, but merely renders Effect of
^ r^ t 1. • i.1 decree on
it necessary to obtain from the Court leave to exercise them ; necessity for
and it is conceived that, although such leave ought to be obtained igav^"^^
before exercising the power, yet it is not a necessary condition
precedent. In Graham v. Graham (16 B. 550), an appointment
of new trustees (apparently after decree, though the report is
not very explicit) without leave was held not necessarily invalid ;
and if the Court would have authorized an expenditure, had
application been made to it, such expcnditm-e will sometimes be
allowed on passing accounts subsequently ; (see Brouii v. Smith,
10 Ch. D. 377). So, where trustees sold without the sanction
of the Court, after further consideration of a suit in which
liberty to apply was reserved, they were allowed their costs of
the sale {Re Manse/, Rhodes v. Jenhins, 33 W. E. 727). But
trustees could not be advised to act without the authority of the
Court, after decree.
The mere institution of an action does not prevent trustees Institution of
, . action does
from exercising powers [Ca/e v. Rent, 6 Ha. 240) ; nor does it not affect
prevent executors from selling and making a good title to ^""^^
chattels real {J}{eeves v. Barrage, 14 Q. B. 504).
44
A CONCISE TREATISE ON POWERS.
Powers of
executors
after decree.
Trustee may
ask advice of
Court before
decree.
No general
administra-
tion order.
Action -wound
up, liberty to
apply re-
served.
0. LV. r. 12.
And diflterent considerations apply to executors and trustees ;
for even an administration decree, if there be no injunction or
receiver, does not deprive executors of their legal power to deal
with the assets {Bernj v. Gibbons, 8 Ch. 747 ; Re Ban-ett, 43
Ch. D. 70) ; and since the Judicatui-e Acts, a voluntary pay-
ment by the executor to any one creditor after action, but be-
fore decree, is good, and will be allowed to him in taking the
accoimts {lie Badclifc, 7 Ch. D. 733 ; Vibart v. Coles, 24 Q. B.
D. 364). Such a payment, before the Acts, was allowed in
equity, but not at law (see Williams, Exors. 8th ed. 1041).
A trustee is, however entitled to come to the Court for its
sanction after action, and before decree ; and will be allowed his
costs of doing so {Turner v. Turner, 30 B. 414 ; and see now
E. S. C. 1883, Ord. LV.).
In Re Hall (54 L. J. Ch. 527), an administration action was
commenced by a beneficiary under a will ; but the Court, acting
under the discretion conferred by (3rd. LV. r. 10, did not make
any order for general administration, but directed certain
inquiiies, including an inquiry Avhether any and what proceed-
ings should be taken for the appointment of new trustees of the
will. Pearson, J., held that the powers of the trustees were not
affected, except so far they might interfere, or come into conflict,
with the inquiries directed by the order. In the case before
him, he considered that the appointor ought to have submitted
the name of the proposed trustee to the judge in chambers ; but
there being no valid objection to the person actually appointed
without leave, it A\'as unnecessary either to sanction the appoint-
ment formally, or to refer the whole matter to chambers.
In Re Hansel (33 W. R. 727) the same judge held that after an
action had been practically terminated and wound up by the order
on further consideration, the mere reservation of liberty to apply
did not render it incumbent on the trustees to come to the
Court for leave before exercising powers contained in the will.
By R. S. C. 1883, Ord. LV. r. 12, it is provided that the issue
of a summons under r. 3 of that Order shall not interfere with,
or control, any power or discretion vested in any executor,
administrator, or trustee, except so far as such interference or
EXTINGUISHMENT AND SUSPENSION Of' POWERS. 45
control may necessarily be involved in tlie particular relief
sought.
The Court does not interfere with the execution by trustees of Jfow far
Court will
powers of appointment, if sucli execution is made bond fide, interfere with
,. .. „,,,, L • ^ • L ' powers of
Where the disposition of a trust estate among certain objects is appointment,
made by the author of the trust to depend upon the discretion of
the trustee, the Coiu't will, upon a proper proceeding, inquire into
the manner in whicli tlie trust has been administered, and
require that such discretion shall be fairly and honestly exer-
cised ; and so long as it appears to be so exercised, the Court
will not deprive the tnistee of the discretionary power which he
possesses, or itself assume the exercise of that power. But, to
avoid a repetition of actions, where there is reason to apprehend
that the trustee's exercise of the power may be liable to question,
the Court may require the discretion of the trustee to be exer-
cised under its view; (see Costahadic v. Costabadie, 6 Ha. 410, in
which case the testator gave his widow his property upon trust
to apply the same for the use of herself and their children,
according to her own discretion during her life; see, too
Talbot V. Marshfiekl, 4 Eq. 661, on appeal 3 Ch. 622 ; Lord v.
Bunn, 2 Y. & C. C. C. 98; Marquis Camden v. Murray,
16 Ch. D. 161).
The rule is the same, although proceedings are pending for Where pro-
„ . , . • c n T ceedings are
the purpose of impeachmg an exercise ot tlie power. In pending.
Ward V. TijrreU (25 B. 563), the donee of a power appointed to
some of the objects, excluding the others. A bill was filed to
set aside the appointment, and the donee then, pendente Ute,
appointed afresh in a manner authorized by the power, but
declared that the second appointment should not operate, unless
the former was set aside by decree of the Court. The earlier
appointment was set aside and the second upheld. In Weir v.
Chamleij (1 Jr. Ch. E. 295), the appointment, va^i^Q i)endente lite^
was set aside, not because of the existence of the suit, but
because the appointment was held to be a fraud on the power.
And although the maintenance of its wards is peculiarly How far with
within the care of the Court, trustees are not, as a general rule, {^^"^^[enance.
controlled in their exercise of powers of maintenance {SiUibourne
46
A CONCISE TREATISE ON POWERS.
Where
trustees
refuse to
exercise
discretion.
Payment
into Court
destroys trus*
tee's powers.
V. Newport, 1 K. & J. G02). In Brop/ij/ v. BeUam!/ (8 Cli. 798),
there was the ordinary power for the maintenance of children ;
and a petition was presented in the snit, praying for the payment
of the income of five-sixths of a fund in Court to the father of
the children. The trustees stated that they thought it proper
and for the benefit of the children ; and the Cornet declined to
control their discretion ; (and see lie Lqff house, 29 Ch. D. 921).
If the trustees refuse to exercise their discretion at all, the
Court will treat it as a trust, and direct an inquiry how much
ought to be allowed for maintenance ( W7iite v. Grane, 18 B. 571 ;
and see Heivett v. Heicett, 2 Eden, 332). And in Be Rodrjes, Bavey
V. Ward (7 Ch. D. 764), and Be Boper (11 Ch. D. 272), the
Court considered that the trustees were acting capriciously, and
interfered accordingly. But if, by the instrument creating the
power, the discretion is made absolute and uncontrollable, the
Court cannot interfere {Gi>ihorne v. Gishorne, 2 App. Ca. 300 ;
Tabor v. Brooks, 10 Ch. D. 273). But in Brown v. Broim
(52 L. T. 853), where the trustees had power to invest in such
investments as, in their uncontrolled discretion, they should
think fit, the Court, although allowing as discharges to the
trustees investments in Portuguese bonds and the like, never-
theless directed these securities to be sold.
A trustee who pays his trust fund into Court under the
Trustee Eelief Act, thereby retires from the trust {Be Williams,
4 K. & J. 87), and cannot afterwards exercise any discretionary
power {Be Coe, ibid. 199 ; Be Tegg, 15 W. E. 52 ; but see Be
Landon, 40 L. J. Ch. 370).
CHArTER III.
CREATION OF POWERS.
PAGE
1. Three requisites to the creation
of a power 48
2. Technical words not necessary. . 48
3. Life estate, with power super-
added, does not vest absolute
interest 52
Effect of ultimate remainder to
executors and administrators ;
and to heirs 54
Hfect of gift to the heirs of life-
tenant, as he shall appoint ;
and to issue; and to issue,
with icords of distribution .. 57
4. When a power after a life estate
is exerciseable by deed or by
icill, and ichen by will only . . 60
5. Indicia of intention not to give
absolute interest 62
6. Life estate severed from rever-
sion in order to introduce con-
tingent estates 63
7. Absolute gift followed by words
sounding like a power 64
8. When executors take an estate,
and whin a mere poicer over
real estate 68
9. Implied power in executors if rio
donee be named , 69
Secus, if there be a devise of the
lands 72
10. Blending of produce of sale of
real with personal estate ,,,, 72
Is question of intention 72
Division into numerous shares,
and directions as to investment 73
11. Completion by executors or ad-
ministrators of contract to sell
real estate 75
12. Direction to pay debts operates
as charge 75
13. How far generality of charge
is limited by express limited
charge 76
PAGE
14. Direction that debts be paid by
executors: —
(i.) Where no estate is devised
to executors 77
(ii.) Where estate is devised to
executors 78
Devise to one of several executors
only 78
Charge of debts creates power to
sell 79
Purchaser not to inquire as to
existence of debts 82
22 S; 23 Vict. c. 35, ss. 14—18
Questions arising on the several
sections 86
General scheme of the Act .... 88
Authorizes sale or mortgage . . 89
Sale by acting executors under
21 Hen. VIII. c. 4 89
Disclaimer under Conveyancing
Act, 1882, «. 6 90
Executors cannot sell to them-
selves 91
Survivorship of powers of exe-
cutors 92
lowers of executor of executor . , 93
Acts of executor before probate.. 94
Creation of powers, with re-
ference to their extent 98
A power prima, facie extends to
enable disposition of the fee .. 98
Power created by will : by
deed 100
27. Powers created by reference .... 101
28. General potvers in execxtted in-
struments not to be restricted
by subsequent limited powers . . 103
Secus, in executory instruments 105
In wills 106
29. Powers, additional or substitu-
tional 108
30. The object of the power 110
Unlimited power of sale Ill
15.
16.
17.
IS.
48
A CONCISE TREATISE ON POWERS.
Three re-
quisites.
1. There are three requisites to the valid creation of a power,
namely, sufficient words to denote the intention, an apt instru-
ment, and a proper object (Sug. Pow. 102). The instruments by
which powers may be created have already been considered. It
is now proposed to consider what words wiU denote an intention
to create a power.
No teclinical
■words neces-
sary.
Exception.
Recital.
By implica-
tion.
2. No technical or express words are necessary, eitlier
in a deed or in a will, to create a power.
All that is requisite is that the intention to create a power
should be clearly expressed, bearing in mind that terms of
art have their technical, and ordinary words their ordinary,
meaning.
In B. of Oxford v. Leicjhton (2 Yern. 376), a marriage
settlement contained a provision that, in default of issue, the
trustee should convey to such uses as the survivor of the
husband and wife should appoint ; this provision amounted to a
power of revoking and limiting new uses. So a recital in a
deed or an exception out of a prohibition may be sufficient. In
Beachcroft v. Broome (4 T. E. 441), a devise before the Wills
Act to A. and his heirs, but if he should die without issue
or without settling or disposing of the same, then over to B.,
was held to give A. a power of disposition. In Read v. NasJw
(1 Leon. 147), an estate was devised in strict settlement (A.
being the first tenant in tail), and contained a provision that if
A. should alienate otherwise than for jointures for life, or for
leases for twenty-one years, he should forfeit his estate ; this
gave A. a power of jointuring and leasing.
A devise of real estate to the testator's family, provided that,
if his personal estate and Blackacre should not pay his debts, his
executors should raise the same out of the devised estate, gives
the executors a power of sale {Bateman v. Bateman, 1 Atk. 421).
When a testator devises real estate alone to raise money, there
is an implied power of sale ; but it is otherwise, where there is a
mixed devise of real and personal estate ; for in such a case non
constat that there is not enough personalty to raise the sums
CREATION OF POWERS. 49
required {CiO'Jing v. A/(sfen, 2 Dr. & Sm. 120, 130) ; or at least
it would 1)0 necessary to show that tlie personalty was insufficient
(see Dikr v. Eicks, Cro. Car. 335). In Taif v. Lafhhtinj (1 Eq.
174), a settlement of personalty contained a power of sale and
investment in real estate, and a direction tliat such real estate
should bo considered as personalty for the purposes of the settle-
ment, but contained no express power of sale over the real
estate to be purchased ; the original power of sale was held to
extend to the purchased real estate ; (and see Master v. De
Cromnar, 11 B. 184 ; Sheffield v. Coventry, 2 D. M. & Q. 551;
Garnett-Orme to Ilargreaves, 25 Ch. D, 595). In the last case
there were two marriage settlements of personal estate, with the
usual trusts to continue investments or to sell, and covenants to
settle after acquired property upon the same tnists. Real estate
came into settlement under this covenant ; and Bacon Y.-C
held that the trustees had power to sell it.
In Doicnes v. Ti»ipero)i (4 Russ. 334), a testator by his will Ex necessitate
gave real and personal estate to a married woman ; and by
codicil he declared that if she should die without disposing
by will of such interest as she took under his will, such interest
should go to her cliildren. This gave her a power, as she could
not otherwise have disposed of her interest, being covert. In
Wood V. White (4 M. & Cr. 460), a testator gave (amongst
other things) one-fifth of his residuary real estate to trustees on
trust for his daughter until 25 or marriage, witli a direction
that, if she married under that age, her one-fifth should be con-
veyed and settled on certain trusts, and he gave the trustees a
general power of sale. On the daughter's marriage, a settle-
ment was executed which recited that no part of the real estate
had been sold, though it was intended that the same should
be sold under the power contained in the will, and assigned all
the daughter's share of the produce of the sale on certain
trusts. The power of sale contained in the will was held to
have determined on the daughter's marriage ; but the settle-
ment, showing a clear intention for a conversion of the realty
into money, and a dealing with and settlement of money,
which could only arise fi'om such conversion, and being made
F. E
60 A CONCISE TREATISE ON TOWEKS.
between trustees, who alone could make the conversion, and the
ce^f Ill's que trust, who alone could dii'ect it, was held to give an
implied power of sale, although it did not in terms direct it.
The Lord Chancellor (p. 481) considered the rules applicable to
the implication of power of sale in wills to be strongly
analogous, the power being implied for the purpose of carrying
into effect the declared intention. In Affleck v. James (17 Sim.
121), a trust for investment of real and personal estate, coupled
with a receipt clause of the purchase-money of property sold,
was held to authorize the sale of the real estate. ' In Wheeler v.
Howell (3 K. & J. 198), the Court supplied a power by adding
the necessary words to an unfinished paragraph. In Knocker v.
Bunhunj (G Bing. N. C. 306), the testator desired his executors
after payment of his debts to pay and make over the rest of his
property to his daughter, and to her children after her death.
This was held to give the executors power to settle a freehold
estate on the daughter for life with remainder to her children
in fee.
But in Re Hollowaij (37 W. E. 77), the testator empowered
his trustees in their discretion " to continue the whole or any
part of my estate in the firm of H. Brothers, or to invest,
re-invest and lend any part of my estate to them without any
personal liability for the safety of such investment." North, J.,
distinguished the case from Affleck v. James on the ground that
this was only a discretionary power to invest in a manner which
would otherwise be unlawful, and held that there was no implied
power to sell the testator's real estate.
Po-n-er im- A power of appointment may, it seems, be implied from the
pUod from the i a • ?'
•word assigns, use 01 the word assigns.
In Tapner d. Peckham v. Merlott (Willes, 177), there was a
devise to A. for 09 years, if he should so long live, and after
divers remainders, an ultimate remainder to the heirs and
assigns of A. If A. had had an estate of freehold, instead of
for years, the rule in Shellei/'s case would have applied ; the con-
test was between the heir and the devisee of A. The case was
decided on another point ; but L. C. J. Willes said : " Another
answer suggested itself to me, on which I will give no mature
opinion, because there is no occasion ; but I think there is eome
CKEATION OF POWERS.
weight in it, that this word [assigns], though it does not alter
his (the termor's) own estate, must give him a power of disposing
of it. For supposing this last remainder liad been to him and
his heirs, or to such other person as he should appoint, he might
certainly in that ease have disposed of it by his will, and I am
inclined to think, as at present ad\ised, that the word ' assigns '
may admit of this construction."
In Quested v. Michell (24 L. J. Ch. 722), a testator gave real
and personal estate to the use of trustees to pay the rents to his
niece for life ; and after her death he gave, devised, and be-
queathed his real and personal estate to the heirs, executors,
administrators, and assigns of his said niece. The rule in
Sheik)/ s case did not apply, as the life estate was equitable, and
the remainder legal. As to the personalty, the niece took
it absolutely ; as to the real estate, it was contended that the
niece had only a life estate, with no power to dispose of the
reversion after her death, since the estate was limited to her
heirs by way of purchase. Y.-C. Kindersley said : " The
expression ' heirs and assigns ' is a common one, and is often
used "SNdthout meaning anything more than the limitation of an
absolute interest ; but in this case it is impossible to give any
meaning to the word, unless you attribute to the testator an
intention to give the life-tenant a power, by virtue of which she
could give an estate to some other persons in the character of
assigns distinct from her heirs." And he accordingly decided
that there was a limitation after the death of the life-tenant, to
the persons who should answer the designation of her assigns,
and that that could only be done by giving her an absolute
general power of appointment, and in default of ajipointment,
to her heirs. It will be observed that in both tliese cases the
Court must have read "and" as equivalent to "or."
In Broohman v. Smith (L. E. 6 Ex. 291), the Court, although
expressly refraining from impeaching the case last cited, said
that, in general, the words "and assigns" following the word
" heirs " have now no operation. " The words, ' to assigns for
ever,' have at the present day no conveyancing virtue at all, but
are merely declaratory of the power of alienation, which the
e2
52 A CONCISE TREATISE ON POWERS.
piireliaser would have without tliem " (Williams, R. P. ICth ed.
171). It is to be observed that in Quested v. MicJiell the niece
had no jiower of alienation except such as was to be implied from
the use of that word " assigns," and the Yice- Chancellor gave
effect to what he considered the intention. In the case in the
Exchequer, which was decided and affirmed (7 Ex. 271) on
other grounds, the ultimate limitation was to the heirs and
assigns of the life-tenant, a married woman, as if she had con-
tinued to be unmarried. This limitation was contained in a
will by a father made in execution of a covenant contained in the
daughter's marriage articles. The Court thought that the term
" heu's and assigns " was used in the ordinary conveyancing
meaning ; it was so used in other places in the will. Moreover,
in the corresponding limitation in the articles, the word
" assigns " was omitted ; but their opinion was based on what
they considered the testator's intention. And the Court of
Exchequer Chamber expressly refrained from giving any
opinion on this point, which they appeared to think by no
means clear.
3. It is only necessary that the intention to create a power
should be clear, but it is frequently difficult to determine, whether
it is intended to pass an estate, or merely to give a power; and
supposing a power to have been created, of what nature and
exent it is. The cases appear to establish the following rule :
Gift for life If an Gstate for life be first ffiven and a power of
with power ^ _ ••■
added does disposition bv deed or will added, this does not
not give abso- l j
lute estate if amount to ail absolute "•if t, so as to vest the pro-
power be not .
exercised. porty ill the doiice for an estate that will devolve
upon his representatives, if he do not exercise his
power of appointment.
" The distinction is perhaps slight which exists between a gift
for life, with a power of disposition superadded, and a gift to a
person indefinitely, with a superadded power of disposition by
deed or will. But that distinction is perfectly established : that
CREATION OF POWERS.
53
In the latter case the property vests" {Bmdlij v. Wedcott,
i;} Yes. 453, per Grant, M. E.)- The difference is important
for many reasons : not only may the limitation in default of
appointment give the property to some one other than the life
tenant's lieirs, but a cliarge on the fee belonging to the tenant
for life would not merge, as would be the case if he were owner
in fee simple {Re Benton, Smith v. Smith, 19 Ch. D. 277 ; and see
Ex parte Gilchrist, Re Armstrong, 17 Q. B. D. 521).
The rule applies equally to real and to personal estate {Reith
V. Seymour, 4 Euss. 263). In that case a testator, by his wiU,
gave all his personal estate to his wife for life, and from and
after her decease, one moiety thereof was to be at her disposal,
either by will or otherwise. This was held to amount to an
estate for life with a power of appointment ; (and see Nannock v.
Horton, 7 Yes. 391 ; Liefe v. Saltingstone, 1 Mod. 189 ; 2 Lev.
104 ; Carter, 232 ; Archibald v. Wright, 9 Sim. 161 ; Scott v.
Jossehjn, 26 B. 174 ; Shaw v. Jones-Ford, 6 Ch. D. 1 ; i?e
Thomson, Herring v. Barrow, 13 Ch. D. 144 ; 14 ibid. 263 ; Re
Pounder, bQlj. T. 104).
In Espinasse v. Luffingham (3 J. & L. 186), the testator Gift of use of
bequeathed to his wife " all the household fm-nitm-e and ^ ^ *^"
moveable goods and chattels in and belonging to my said
dwelling-house and premises, except my books. I also bequeath
to her the use of my plate, with power to dispose of such portion
thereof as she shall think proper." The Lord Chancellor of
Ireland considered that the testator's intention clearly was to
confine the wife to the enjoyment for her life of the plate, but
with a power of disposition of any part. The testator began a
new bequest, and altogether changed his language ; he knew
how to give personal property absolutely, and used proper
language for that purpose. It was not therefore a case in which
a bequest in those terms stood alone.
In Fciuiock V. Pennock (13 Eq. 144), a testatrix, in execution
of a power, appointed shares of real estate to her husband in
trust to stand possessed thereof, and to enjoy the rents and
profits " for his own absolute use and benefit for and during the
54
A CONCISE TREATISE ON POWERS.
Dichim of
L. J. Chi-is-
tian to the
contriiry.
Unlimited
gift of income
"with power
superadded.
Gift for life
with re-
mainder to
general ap-
pointees by
term of his natural life, with power to take and apply the whole
or any part of the capital arising therefrom to and for his own
benefit, and from and after his decease " over. This gave the
husband a life estate with a power of appointment ; (see, too. Re
Pedrotti, 27 B. 583 ; and HoUoicny v. C/arl^son, 2 Ha. 621).
On the other hand, in li('i(/ v. Atkinson (5 I. R. Eq. 373, where
the words were (followdng a gift of all his real and personal
estate to his wife) " to have, hold, and enjoy in the fullest and
amplest manner for the term of her life, with full power to
dispose of all the aforesaid property, both real and personal,
as she may judge wisest and best." The point decided was that
these words precluded any precatory trust, but L. J. Christian
says (pp. 382 — 3) : " It was assumed on both sides that the
effect of the mil was to give the testator's wife an estate for
life only, with a power of appointment superadded. Now I am
not sure at all that such is the effect of this will ; and I am
speaking here, not so much regarding the technical result of the
limitations, as of the intention which the language holds up to
us as having been actually present to the testator's mind. . . .
Full enjoyment during life, full power to dispose of, these things
exhaust the advantages of property, and are comprised in the
very idea of property," and he thought the better construc-
tion of the will was the one which would make the wife the
universal recipient of everything, " with a lavish accumulation
of language directed to show that her enjoyment and dominion
were to be as boundless as the limit of human life and the
nature of human proprietorship admitted the possibility of."
As the wife had made a will sufficient to execute the power
(p. 163) it was unnecessary to decide this.
If the gift is of income only, but is unlimited in point of
time, it is equivalent to an absolute gift of the capital, and the
superadded power will not cut it down (Sout/iousc v. Bate, 16 B.
132 ; JFcale v. Oliive, 32 B. 421).
A gift to a married woman for her separate use for life
without restraint on anticipation, with remainder as she
should, notwithstanding coverture, by deed or will appoint, with
CREATION OF POWERS.
55
remainder to her executors, or administrators, is an absolute gift ^ofA or will,
7 Tj 7 v With re-
to her solo and separate use {London Chartered Bank, Cfc. v. nwiinderto
Lemprnrc, L. R. 4 V. C. 072, 595). adminis-
And a bequest to a female (wliether sole or covert) for lier trators.
■^ Gift for life
separate use for her life, and after her decease to such persons with rc-
as she shall appoint, and in default of appointment, to her ^pp^lnteer
executors, administrators, and assigns, is equivalent to an abso- ^'J^^lJJ^^^j. ^^
lute eift : and the effect is the same, although the power is executors and
. ailiniiii.s-
testamentary only. The female's executors could only take the tratons.
fund as part of her estate, and if she disposed of it duiing her
life, her executors could not dispute or claim in opposition to
the act of their testatrix {Ilolloicay v. Clarh-.son, 2 Ha. 521 ;
Derail v. Dickens, 9 Jur. 550 ; Page v. Soper, 11 Ha. 321 ;
Gardiner v. Younrj, U L. T. 348 ; Ec Onslow, 39 Ch. D. 622).
A limitation to the executors and administrators of an individual
is, as to personal estate, the same as a limitation to the right
heii's as to real estate (15 Yes. 537).
It makes no difference whether the power is contained in a No difference
.... between will
will or a settlement. In either case the ultimate nmitation to and settle-
the executors and administrators of the donee in default of ™®'^*-
appointment must bear the same construction {Anderson v.
Dan-son, 15 Yes. 536 ; Daniel v. Dudlei/, 1 Pli. 1 ; Page v. Soper,
11 Ha. 321) ; although, in Buhner v. Jay (3 M. & K. 197),
Lord Brougham, on the special construction of the settlement,
held that the ultimate limitation to the executors and adminis-
trators of the wife was equivalent to a trust for her next-of-kin.
But this case stands alone (1 Ph. 7) and has never been
followed.
" But there is a great difference between a limitation to the Limitation to
. . , 1 r 1 • next-of-kin.
executors and administrators and a limitation to the next-ot-km.
The former is, as to personal property, the same as a limitation
to the right heirs as to real estate ; but a limitation to the next-
of-kin is like a limitation to heirs of a particular description
■which would not give the ancestor, having a particular estate,
the whole property in the land " {per Sir W. Grant, M. R. in
Anderson v. Dawson, 15 Yes. at p. 536).
An ultimate limitation to the personal representatives of the To personal
56
A CONCISE TREATISE ON POWERS.
repr3senta-
tives.
donee is, prima facie, a limitation to the executors or adminis-
trators in their representative capacity, whether the limitation be
contained in a will {Sabcrfoii v. Sh-cck, 1 E. & M. 587 ; Me
Crairford, 2 Dr. 230 ; Be Wyndham's Trusts, 1 Eq. 290 ; Alger
V. Parroff, 3 Eq. 328), or in a deed {Re Best, 18 Eq. 686).
But this prima facie meaning will, of coui'se, give way to an
expression of a contrary intention, and may be controlled by
the context, so as to be read as equivalent to" next-of-kin"
{Baines v. Otfei/, 1 M. & K. 465 ; Daniel v. Dudle>/, 1 Ph. at
p. 6 : Briggs v. Upton, 7 Ch. 376).
If the donee of a general power of appointment over a fund
appoint by deed to his own executors and administrators, the
effect is to make the appointed property part of his personal
estate {Mackenzie v. Maclicnzie, 3 Mac. & Gr. 559 ; and see Wehh
v. Sadler, 8 Ch. at p. 427).
It is submitted that the mere fact of the donee being a
married woman is not enough to make the absolute interest vest,
executors and ^ there be no ultimate remainder to her executors and adminis-
aaminis-
trators. trators, notwithstanding a dictum of Lord Eomilly, in Trimmell
V. Fell (16 B. 537, 541), to a contrary effect.
If the subject-matter of the power is real estate, and there is
a remainder in default of appointment to the heirs of the life-
tenant, the life estate and the fee will coalesce, by the rule
in Shelleifs case ; and it seems that the right to defeat the estate
given and to make those take by purchase, who, if the power
were not exercised, would take by descent, cannot vary the con-
struction of the gift. In Richardson v. Harrison (16 U. B. D.
85) , a freehold messuage was devised to trustees upon trust for
A. for life, and after her death upon trust for her children, as
she should by deed or will appoint, and in default of such
appointment, in trust for A.'s right heirs. It was held that, as
the trustees had the fee simple, and both the estate for life
devised to A. and the remainder in fee to her heirs were eqidt-
able estates, they coalesced according to the rule in Shelleifs case.
But it will be otherwise, it seems, if the heir be j^ersona
designata. In Brookman v. Smith (L. R. 6 Ex. 291) (affirmed
on another point, 7 Ex. 271), there was a devise by a testator
Secus, if there
is no ultimate
remainder to
Rule in
Shelleifs case.
CREATION OF POWERS. .07
(in execution of a covenant in his daughter's marriage articles)
of real estate to the use of the husband for life, with remainder
to the use of tlio wife for life, with remainder to the use of the
issue of the marriage ; tlie ultimate limitation was in case every
child born or to be born should die under 21 and without leaving
issue, then to the use of the heirs and assigns of A. as if she
had continued sole and unman-ied. These words would have
precluded A.'s own sou, if she had married again and had a
son, from succeeding ; and were held, therefore, not to be words
of limitation, but to point to 2wrso)ia dcsignata ; (and see Ecans v.
Evam, (1892) 2 Ch. 173).
A devise to A. for life, and after his death to the heirs of his Remainder to
body as he shall by deed or will appoint, and in default of the body of
appointment, to the heirs of the body of A. as tenants in as h^shaU
common, with a devise over in fee for want of such issue, gives appoint.
A. an estate tail, according to the well-known rule that technical
words must have their legal effect, unless it is perfectly clear tliat
the testator meant otherwise (Jcsson v. Wriff/it, 2 Bligh 1, Sug.,
Property in H. of L. 250 ; Doc d. Cole v. Goldsmith, 7 Taunt.
209). Lord St. Leonards is of opinion that the power in such Power exer-
a case may be exercised in favom- of any of the objects of the
power within the line of perpetuity. Although, in strictness, the
words "heii'S of the body" mean one person only at any given
time, yet they also comprehend all the posterity of the donee in suc-
cession, and the donee, therefore, could not strictly and technically
appoint to "heirs of the body" (2 Bli. 53 ; Sug. Pow. 675).
Words which would create an estate tail in realty will give an Remainder to
absolute interest in personalty, but in order to do so the words the body of
must be clear and distinct ; and, moreover, not every form of ^' o^jQ^^jn^^^
expression which will create an estate tail in realty, vnR create personalty.
an absolute estate in personalty {Forth v. Chapman, 1 P. W.
663). The principle is, that if the testator uses technical words
which indicate a clear meaning that the property should go in a
course of devolution until there is an exhaustion of the heirs of
the body, as that cannot be carried into effect, they give an
absolute interest {Ex parte Wynch, 5 D. M. & G. 206).
In Re Jeafreson (2 Eq. 276), a testator gave the residue of his Direction for
58 A CONCISE TREATISE ON POWERS.
maintenance estate, consisting wholly of personalty, to trustees on trust for
sion among A. for life, and after her death " for the benefit of the heirs of
errs. ^-^^ body of A., fu'st to educate at their discretion the said heirs,
and lastly to pay to the said heirs the said residue at their
respective ages of 21, in such proportions as A. might by deed
grant or by will direct." This was held not to be an absolute
interest in A. Y.-C. Wood said that upon such a gift of personal
estate as that, the question was not whether the construction of
the clause, taken simply word by word, would give an estate
tail, but whether, regard being had to the whole will, consider-
ing that the projierty was personal and not real estate, there was
an intention manifested that the words " heirs of the body " should
be used in their proper sense. " Without pausing to consider
whether the set of words used here would bring this case within
the rule in Shelley'' s case, regard being had to the decision of House
of Lords in Jesson v. Wright, I think the use of words like these,
when accompanied with a discretionary power of education for
these heirs of the body, and with an express discretion for
division at 21, justifies me in saying that the testator did not
point to heirs successive, who are to continue proprietors of the
fund in question to an extent which the law would not allow,
and which the law would cut short by giving the fund to the
first taker."
"Issue." The word "issue" in a -will prmui facie means the same thing
as "heirs of the body," and is to be construed as a word of
limitation ; but this priiiid facie construction will give way if
there be on the face of the will an intention that the word is to
have a less extended meaning {Slater v. Dangerfield, 15 M. &
W. 263). Where in a devise there is a gift over on general
failure of issue, it is presumed that the word "issue" has been
used by the testator as meaning heirs of the body ; and it is for
the party seeking to give it a meaning other than that which it
frequently bears, to show clearly from the context of the will
that the testator intended to give it a different meaning {Roddy
V. Fitzgerald, 6 H. L. C. 82-3). In that case lands were devised
(in 1817) to A. for life, and after his death to his lawful issue,
in such manner, shares, and proportions as he by deed or wiU
CREATION OF POWERS. 59
should appoint, and for want of such appointment to the issue
equally, and on failure of issue to B. The testator had in
effect two intentions : one, that the gift over should not take
effect till all tlio issue of the first taker was exhausted : the
other, that tlie issue should not take in the ordinary course of
descent. Of these the latter intent was obliged to give way,
and the power of appointment did not vary the case, as it only
showed tliat the testator did not contemplate equality of interests
as essential (pp. 872-3).
But in every case, however general the words may be, they may Secus, if there
be restrained and limited by the context, whenever it clearly is.sue, either
appears tliat they were intended to be used in a more restricted I'^plicd ^^
sense. Thus, if there are words of distribution, together with coupled with
" words of dis-
words which would carry an estate in fee, attached to the gift to tribution.
the issue (whether such gift be express or implied), the ancestor
will take an estate for life only. It is the vesting of the fee in
the issue, and not the words by which it is vested, that prevents
the necessity of implying the estate tail in the parent for the
purpose of carrying out the intention that the estate should not
go over till the exhaustion of the particular line. In such case,
no estate tail is to be implied in the parent, but the fee is to be
considered as vesting in the issue, whether the words giving the
fee are direct words of limitation, as "to the issue and their
heirs," or whether the fee can be held to be vested in them from
the use of such expressions as "estate," or the like, or by impli-
cation from a power to appoint the fee to them {])ev Crompton,
J., in Rodd>/ v. Fitzgerald (6 H. L. C. 855). In Bvadhij v.
CartarujJd (L. E. 2 0. P. 511) the de\-ise (in 1806) was to A.
for life, with remainder to trustees to preserve, and after A.'s
death "to the use of all and every the issue child or children of
the body of A., in such shares and proportions, manner and
form as A. should appoint : and in default of such issue " (not
in default of appointment) over. A. was held to take an estate
for life only, with a power of appointment superadded.
As to the use of the word "issue " as a word of limitation
and otherwise, see Vaughan Hawkins, 189 ; Theobald, 3rd ed.
308 ; 2 Jarm. 4th ed. 438.
60
A CONCISE TREATISE ON POWERS.
4. In cases ■^hcre it is clear that a gift for life with a super-
added power is intended, it is often difficult to decide whether
such superadded power is intended to he exerciseahle hy instru-
ment inter riros, or only hy will. The authorities are con-
flicting, hut the rule to he extracted from them appears to he
that—
Power after
life estate,
whether exer-
ciseahle hy
deed, or by
■will only.
A power to A. to appoint real or personal estate
after liis own death is not rendered testamentary-
only by the mere reference to his death (Sug.
Pow. 210).
In A)W7i. (3 Leon. 71), there was a devise to A. for life,
" and, after her decease, she to give the same to whom she
would." This was held well exercised hy a grant of the rever-
sion in A.'s lifetime. On this Lord Ellenhorough remarks
(10 East, 443) that the word " give " might import something
of which the party was to divest herself presently.
In He David (Johns. 495), there was a residuary hequest to a
feme sole, " to he hy lier possessed and enjoyed ahsolutely during
the term of her natm\al life, and to he disposed of as she shall
think fit at her death." The Y.-C. said that, there heing no
such words as hy will, and no indication of an intention to tie
up the property, hut rather the contrary, he should not he
justified in construing the power as testamentary only.
In Tomlinson v. Dighton (1 P. W. 149), the devise was to the
testator's wife for life, " and then to he at her disposal, provided
it be to any of her children, if living ; " and this power was held
to he exerciseahle at any time.
In Ex parte Williams (1 J. & "W. 89), the testator gave all his
real and personal estate to his wife for her life, " to he by her
divided according to the best of her judgment amongst such of
her children as should he surviving at the time of her decease."
This was held to he a power exerciseahle by deed or will.
In Humhle v. Bowman (47 L. J. Ch. 62), a testator devised a
house, and gave all his personalty, to his wife " for the term of
CREATION OF POWERS.
her natural life, and to bo distributed to the testator's family at
her decease, as she might think proper." V.-C. Hall hold that
the wife's power was not testamentary only.
In Re JachoN'.s Will (13 Ch. D. ISO), there was a gift of the
residue to A. for her sole use and benefit, should she outlive her
imele and aunts, " tlic whole principal at her death to be divided
amongst her children, if she has any, in such proportions as she
shall think proper ; and if she dies without leaving children,"
then over. A. survived her uncle and aunts, but never exercised
the power. It was held that her children took vested interests
in the property, liable to be divested by the exercise of A.'s
power, either inter vivos or by will.
On the other hand, in Freehold v. Pearson (3 Eq. 6-58), a
testator gave his wife all his property for her sole use during her
life, and directed her to pay his debts, &c., " and at her decease
to make such a distribution and disposal of all my then remain-
ing property among my children as may seem just and equitable
according to her best discretion and consideration." The Master
of the Eolls held that the power could be exercised only by
will in f avom' of children who survived the donee ; (and see the
same Judge's decision in Beid v. Reid, 25 B. 469).
In Kenned// v. Kingston (2 J. & "W. 431), there was a bequest
to A. for life, " and at her decease to divide it in portions as she
shall choose to her childi'en." It was held that the children
who were living at her death were the only objects of the power,
and were, as such, entitled to a share lapsed by the death of a
child to whom it had been appointed.
In Archibald v. Wright (9 Sim. 161), a testator willed that at
the death of his wife £1,000 bo transferred "to J. Gr. {a feme
sole), for her sole and entire use during her life : that she shall
not alienate it, but enjoy the interest of it during her said life,
and at her decease she may dispose of it as she thinks fit."
This was held to give a life interest with a testamentary power.
The Vice-Chancellor considered the restraint on alienation indi-
cative of an intention to prescribe the mode of executing the
power, viz., by will, and not by \\Titing inter vivos.
61
62
A CONCISE TREATISE ON POWERS.
' Leave.
^^/f
^
<.t
d
a
Indicia of
intentiun not
to give abso-
lute interest.
And where there are words expressly referring to testamentary
disposition, an exercise infer riros is precluded.
In Doc d. T/iorh'!/ v. T/iorki/ (10 East. 438), there was a
devise of lands to A. for life, " and also at her disposal after-
wards to leave it to whom she pleases." The Court thought
that the word " leave " must be taken to apply to that sense of
it in which a person making his will would naturally use it,
namely, by a testamentary disposition ; and held, accordingly,
that the power was exerciseable by will only.
In Walsh v. WaUinger (2 E. & M. 78), the testator devised
his real estate to trustees upon trust to convert, and pay the
proceeds to his wife to and for her own use and benefit and
disposal, trusting that she would thereout provide for and main-
tain his family, "and at her decease give and bequeath the
same to her children " by him as she should appoint. The power
was held to be testamentary only.
In Paul V. Heivetson (2 M, & K. 434), where consols were
given to trustees, upon trust to pay the interest to the testator's
daughter for her separate use during her life, " the principal to
go to her heirs, or to any other person she might choose to will
it to," the decision was to the same effect.
5. A gift over in default of the exercise of the power affords
evidence of an intention to create a power and not to give an
absolute interest {Ee Maxwell, 24 B. at pp. 250-1) : but on the
terms of a residuary gift in that case Lord Eomilly thought
that there was no gift of the subject-matter of the appointment.
So, the fact that the power of appointment is among a class ;
or that the donee is under some disability which the donor
cannot remove, is said by the same judge to afford evidence of a
like intention. But in Heahj v. Bonncry (3 Ir. C. L. R. 213),
a testator devised to his daughter M. 11. all his freehold interest
in North King Street upon trust for her own separate use during
her life, " with power to my said daughter by any deed or will
to dispose of, devise, or bequeath the said freehold estate to and
among her children in such shares and proportions as she shall
think fit." There was the following residuary gift : " I do
CREATION OF TOWERS. <>^
hereby give leave and bequeath to my said daughter M. H. all
the rest residue and remainder of my worldly substance of what
nature or kind soever for her own solo use and benefit." It was
held that M. H. took by force of the Hfe estate and the resi-
duary gift an absolute estate in tlie freehold, and not a mere
life estate with a power of appointment among children and a
gift by implication to the children. {Scd qu., the Com-t evidently
regarded the claim against M. II. as a dishonest one; see p. 217;
and see Sug. Pow. 591.)
6. Again, if there be a plain reason for the creation of a
power and a life estate in certain events, and an intention that
in case such events do not arise tlie donee's interest shall be
absolute, the Court will give effect to such intention.
Thus, where the estate for life is severed from the power of Life estate
disposing of the reversion for the purpose of introducing other rever-ion ia
distinct and separate contingent estates, then if such contingent °nfjfj/u(,g
estates do not arise, the donee is presumed, in the absence of contingent
. estates,
other evidence of intention, to be intended to take not a mere
life estate with a power of appointment, but absolutely.
In lie Maxwell (24 B. 246) there was a gift to A. for life, and
after his death to his children, but in default of children, "one-
half was to be disposed of as A. should think proper." The
Master of the Rolls said that in this case there was a reason for
giving the life estate, for the purpose of introducing the subse-
quent gift to the children, and he held that there being no
children, and the son having died without appointing, the fund
went to his personal representatives as part of his estate.
In Goodtitle v. Otmiy (2 Wils. K. B. 6) the devise was to the
testator's heir-at-law for her life, and after her death for her
lawful issue, but if she should have no issue, then that she
shoidd have power to dispose thereof at her will and jileasure.
She died without issue. The Court held that she took 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 ; and accordingly a will made by her
during covertm-e was held void ; (and BeeNonian v. Wak/i, 4 De
64 A CONCISE TREATISE ON POWERS.
Gr. & Sm. 584), where it is said : " When property is given to a
person for life, and after his death to be at his disposal, it
is difficult or impossible to give the legatee more than a life
interest, because no reason can be suggested for the limitation of
a life interest, except that the testator intended to give no more
than a power beyond that limitation. But where the will is
such that an intention to give a life estate, and an intention to
give an estate afterwards may rationally be supposed to co-exist,
the same reasoning does not apply." In that case, the testator
directed his property to be placed in the funds, and the income
to be paid to his wife ; after her death he bequeathed two
legacies, and the remainder of his property he left at the
disposal of his wife if she remained a widow. If she should
marry she was to have no control over his property, but the
executors were to pay her an annuity for life, and the remainder
was in that case given over. The widow did not marry again,
and died without executing her power. The property passed
to her representatives as part of her estate ; (and see Sug. Pow.
105, 108).
Absolute gift 7. AVhcre there is an absolute ffift, whether of realty
followed by *-" ' •>
words sound- or jDersoiialty, followed by words sounding like a
po'w'er- power, whether general or limited, with a gift
over if it be not exercised, the gift over is
repugnant and void [Holmes v. Godson, 8 D. M. &
G. 152 ; Gulliver v. Vcmx, ibid. 167; LigUhurne v.
Gill, 3 Bro. P. C. 250).
This is an offshoot of the general rule of law, that a gift over
in the event of the death or intestacy of the person to whom an
absolute interest is given, is repugnant and void.
In Uohnes v. Gochon, a testator gave real and personal estate
on trust for his son, to vest in him on his attaining 21, but if he
should die under 21, or having attained 21, shoiUcl not have made a
tcill, the testator directed the property to bo sold, and the proceeds
held on other trusts. The gift over was held void. L. J. Turner
CREATION OF POWERS.
said that, the law having declared that if a man dies intestate
his real estate shall go to his heir, and his personal estate to the
next of kin, any disposition which tends to contravene that dis-
position wliicli the law would make, is against the policy of the
law, and therefore void ; (see, too, Comber v. Gmlidiii, 1 R. & M.
450 ; Wafkins v. Williams, iJ Mac. & G. G22 ; Rv Wilcoc/c\s
Settlement, 1 Ch. D. 229 ; Shaiv v. Jones-Ford, « Ch. D. 1 ; lie
Perey, 24 Ch. L>. 616 ; Ite Parry and Dar/gs, 31 Ch. D. 130).
In Gulliver v. Vaa.c, a testator devised real estate to his
second son in fee, if he attained 21, charged with a legacy to
a daughter, and if the second son died under 21, then to the
eldest son when he attained 21, cliarged with the legacy; and
in case it shoidd happen that all tlie testator's three children
should die without issue and without appointing the disposal of
the estate, then over. The devise over was held repugnant and
void.
In Barton v. Barton (3 K. & J. 512), there was a gift to J.,
T., and M. of all the testator's freehold, leasehold, and other
property, share and share alike. As to M.'s share, he declared
that she should receive the interest only during lier natural life,
and that after her death lier share should be divided among her
children at 21. But if she shoidd have no children, or if they
should die under 21, her share was to go to J. and T. " But
in case J. and T. should either or both die intestate, his or their
share or shares should be divided beturen their children respectively,
share and share alike." The last gift over was held repugnant
and void.
In Be Mortloch (3 K. & J. 456), there was a bequest to two
persons in two equal parts, each for liis and her own sole use
and benefit, and to be disposed of as each of them pleased at
their deaths ; or if not so disposed of, to be equally divided at
their deaths between their children. This was held to be an
absolute gift, and the gift over was rejected as repugnant ; (and
see Be Yalden, 1 D. M. & Gr. 53).
In Hales v. Margerum (3 Ves. 299), a testator gave £1,000
stock to A., a married woman, for her separate use ; " and when-
ever she shall happen to die, the said £1,000 shall be absolutely
F. F
65
6Q
A CONCISE TREATISE ON POWERS.
in her OAm power to dispose of, by lier last will and testament,
to any person or persons she shall think proper," with a gift
oyer on failure of disposition by her. It was held that she took
an absolute gift of the £1.000, qualified only so as to prevent
her husband taking as administrator on her death, and that the
sum therefore passed imder general words of gift in her will.
In Bull Y. Kingston (1 Mer. 314), there was a gift of personal
property in trust for A., a married woman, for her separate use,
with a power of disposing of it by will, except to certain specified
persons ; " and in case she dies without a will, I give all that may
remain at her decease to " B. ; followed by a gift of " all the
rest and residue " to A., who was appointed executrix. It was
held that A. took absolutely, with power for her, though
married, to dispose of her interest by will : that the gift over to
B. was repugnant and void ; and that all that A. did not dispose
of passed to her husband.
There may, however, be cases in which, as a matter of con-
struction, the absolute gift in the first instance is cut down by
subsequent express words, as in Ahcarnc v. A/icaD/c, 9 L. R.
Ir. 144.
If the power V.-C. Wood, in lie Moii/ock, expresses a doubt whether the
able by -will Construction would be the same if the exercise of the power
^^' had been required to be by will, or whether the bequest would
not be cut down in such a case to a life interest in the donee,
with a power to appoint by will.
The case of Borfon v. Borton (16 Sim. 552) appears to afford
ground for the doubt. In that case the testator gave to B. all
his personal estate and effects, the same to be considered as
vested in her on her attaining 21, and to be subject to her
disposition thereof ; and, by a subsequent clause, he gave the
property over, in case B. should die under 21, or without
disposing of the property by her wUl. This was held to create a
life interest with a testamentary power of disposition. L. J.
Turner (8 D. M. & G. 160) considered that this case proceeded
entirely on tlie particular words of the will, the words " to be
subject to her disposition thereof," meaning to be subject to her
testamentary disposition, and refening to the ulterior power of
CREATION OF POWERS. ^7
testamentary disposition given to her. Set/ (/u. Tii Jli.ron v.
Oliver (13 Ves. 108), there was a bequest to the testator's wife
of £60 a year for life, and " £-300 to bo disposed of as she thinks
proper, to bo paid after her deatli." Tliis was held an absolute
gift, the Lord Chancellor saying tliat, as a power is a restraint
upon property, it is never to be implied. In IFcfi/e v. 0//ive
(No. 2) (32 B. 421), the testator, by his will, dated 1840,
made an indefinite gift of personalty to a class of children
equally, with a declaration that they should have the right to
will away their shares on their death, and a gift over, if they
should omit to make their wills. The gift over was held
repugnant. The Master of the Kolls said that a right to will is
an incident to and belongs to an absolute interest, and cannot be
treated as a power. When an absolute interest is given, then
the right to dispose of it by will is incidental to that estate, and
not a power attached to it.
In Robimon v. Du^cjate (2 Vern. 181), a testator devised his
lands to A. for life, with remainder to B. in fee, he paying
£400, whereof £200 was " to be at the disposal of his wife in
and by her last will and testament to whom she shall think fit
to give the same." It was lield that the whole interest and
property in the £200 vested in the wife, and that on her death
intestate, it passed to her administrator (and see Southome v.
Bate, 16 B. 132; Elton v. Sheppanl, 1 B. C. C. 532).
In Doe v. Glover (1. C. B. 448), there was a devise in fee, and
in case the devisee should not have parted with or disposed of
the same, then over. The Court seems to have proceeded on the
ground tliat the devise over was not repugnant to, or inconsistent
with, the prior devise. The testator's intention was held to be
that, unless there was a parting with, or disposition of, the
estate by deed in the lifetime of the fiirst devisee, the devisees
over would take. This case and that of Bortoii v. Borton are
perhaps of doubtful authority ; and in the latter the attention
of the Court seems hardly to have been called to the point, that
the devise over, as it was construed, took away the testamentary
power which was incident to the fee first de\ised (see j^^'' L. J.
Turner, 8 D. M. & Q. 165—167).
f2
68
A CONCISE TKEATISE ON POWERS.
Distinction
between
realty and
personalty,
qu.
Power of sale
in executors
dietingTiished
from estate.
It seems that there may be some distinction between real and
personal property in this respect. It might be regarded as a
gift of the real estate, and a direction that if something was
omitted to be done before a particular time, the estate should go
over (32 B. 425), sed qu.
In Doe V. Thomas (3 Ad. & Ell. 123), a devise to A., her
heirs and assigns for ever, with the intention that she may enjoy
the property dm-ing her life, and by her will dispose of it as she
thinks proper, was held to pass the fee ; the additional words
being considered as merely explanatory of the devisee's dominion,
although the same will contained a devise in fee to another
person without the addition of any such words.
But, of course, a devise to A. for life, with remainder to his
appointees by deed or will, does not vest property in him,
although it gives him an absolute power over it which he may
exercise in his own favour if he pleases. It must also be remem-
bered that a power can co-exist with the fee [ante, p. 38), and
it is immaterial in what part of a deed powers are inserted,
whether before or after estates created {R. v. Inhabitants of
Eatington, 4 T. E. 177).
Hence the addition of a power to an estate is not necessarily
void, although it was so decided in Goodilly. Brigham (1 B. & P.
192), where there was a devise to a feme coverte in fee, with a
power of disposition superadded, and it was held that the power
was void as repugnant to the fee. This decision cannot, how-
ever, be considered good law (see Sug. Pow. 94 — 98).
8. Questions of considerable difficulty often arise with regard
to the power of executors to sell land ; and although these
questions have, to some extent, been simplified by legislation,
such legislation has itself given rise to further questions. If
there be a direct devise to executors, they take the estate and not
a mere power ; but if there be no such devise, but a mere direc-
tion to sell, they take a mere j)ower and no estate.
Powers of
sale in
executors.
A devise of land to executors to sell passes an
estate ; but (i. ) a devise that executors shall sell
CREATION OF POWERS.
69
the land ; or (ii.) that land sliall he sold Ijy the
executors; or (iii.) a devise of lands to l)e sold
hy the executors, creates only a power (Sug.
Pow. 111—115; Cliancc, ph 141—170).
The third proposition is, howovor, open to douht (see Co. Lit.
113 a).
In Doc V. Shatter (8 Ad. Sc Ell. 900), there was a devise of
freeholds to tlie testator's wife for hfo ; and after her deatli
" my will is that my said freeholds sliall then he sold by my
executors in trust," &c. The Coiu't construed this as a devise
that the lands should be sold by the executors, and accordingly
held that they took a mere power.
In Reg. V. Wihon (3 B. & S. 201 ; 9 Jur. N. S. 439), a
testator directed his executors to sell copyholds, and to convey
and assure them to the purchaser. It was contended that the
direction to convey showed that the executors were intended to
take an estate ; but the Court held that they took a mere power,
and could accordingly complete a sale without being admitted.
It will be remembered that a bargain and sale is still a common
form of assurance of copyholds by executors who have a power
of sale, but no estate ; and the executors were therefore able to
convey in the ordinary way as directed by the vnW. The report
of this case in 1 1 W. R. 70, must be erroneous in stating that
the testator bequeathed his copyholds to his executors.
In Lnneaster v. ThoDiton (2 Burr. 1027), a testator devised
that his sons should sell his real estate. This was held to be a
power, devise being equivalent to direct; (see, too, Knocker v.
Bunhury, G Bing. N. C. 30G).
9. Such a power as is mentioned in the preceding rule may How created,
be created without express words, and although no donee be of'. "P^ratiou
named ; and will enable the person who exercises it to pass the
legal estate.
If there is a direction to sell in a will, but the Direction to
testator docs not say by whom the sale is to be vendor
named.
70 A CONCISE TREATISE ON POWERS.
made, the executor is presumed to be intended,
unless a contrary intention ap})ear from the
will
In Ahoik, Dyer, 371 b. (S. C. suh nom. MUiranJ v. 3Ioorc,
Sav. 72), A. debased all his estates to his sister and her heirs,
" except out of tins general grant my manor of X., which I do
appoint to pay my debts ;" and made two executors by name.
It was held that the executors had power to sell X. for payment
of debts. It will be observed that there is here no express
direction to sell, but a particular estate is charged.
In Vin. Abr. tit. Devise (Q. e. pi. 1) : Devise of lands to be
sold for pajTuent of his debts ; it shall be sold by his executors ;
and the naming of his executors is sufficient (see, too, Ncidon v.
Bennct, 1 B. C. C. 135 ; Elton v. Rarrison, 2 Sw. 276, n ;
Wareham v. Broicii, 2 Vern. 154).
And Lord St. Leonards (Pow. 117) says that it is well settled
that the executors, where no contrary intention appears, shall sell,
as well where the money is to be apphed for payment of debts,
as where it is given in the nature of legacies and is distributable
by the executors. Thus, in Carvi/l v. Carvi/l (2 Ch. Rep. 301),
A. gave legacies, which he appointed to be paid by sale of lands,
and appointed executors ; and the Court decreed that the lands
should be sold by the executors. In Alltrm v. Fn/er, however
(3 Q. B. 442, 44G), Lord Denman said that if lands were
directed to be sold, and the money arising from the sale were
placed in a course of distribution within the province of the
executor, then the executor would have the power of sale ; but
if (as in that case) it was to be distributed only amongst certain
persons, the heir would have the power.
In Bout ham v. Wiltshire (4 Madd. 44), a testator bequeathed
lands to II. B. for life, provided she did not marry, and directed,
" after her decease, the estate should be sold " (not saying by
whom), and the money divided amongst certain persons named,
after paying to Gr. B. a legacy of £5, and he appointed H. B.
(the tenant for life) and B. B. his executors. It was held that
no power of sale was given to the executors, as they had nothing
CREATION OP POWERS.
71
to do with the produce of the sale, nor any power of distribution
with respect to it ; and there was the further circumstance that
the sale was directed to he made after the death of the tenant
for life, who was one of the executors ; (but see Ward v. Levoit,
mentioned in Forhon v. Peacock, 11 Sim. 160 ; Cart is v. Fiilbrook,
8 Ha. 25, and S. C. 278—280; and Anon. 2 Leon. 220, pi. 270,
referred to in >Sug. Pow. 110).
In JFan/x. Devon (cited 11 Sim. 100), the will was: "Sell
all off, both real and personal property, and divide the produce
between my wife M. A. W. and my sons and daughters, each to
share alike. The law gives the house at Teddington to the
youugest son ; hut it is my will to sell all. I appoint R. W. and
my wife M. A. W., my executors." That was the whole will,
and the executors were held to take a power to sell. In both Conflict
between
these cases the produce of the sale was not distributable by the Bemham v.
executors as such ; and it is difficult to maintain, in the face of ^^^ J^-^'^^ v.
Ward V. Devon, that the decision in Benthani v. Wiltshire was ^'''>"-
right on the first ground stated by the Vice-Cliancellor. But in
other points the cases are very distinguishable. In W((rd v
Devon the sale was immediate, and real and personal estate were
treated together, whilst in Bent ham v. Wiltshire the inconveni-
ence of a sale postponed till the death of the tenant for life, who
was also executor— postponed, that is, to a period possibly
remote, when all other proceedings in relation to the estate
would have been long completed, and the executors would be
functi officio— must have had some weight ; (and see Sug. Pow.
119 ; see, too. Pit v. Pelham, 1 Ch. Ca. 170; 1 Lev. 304; Sug.
Pow. 116 ; Chance, pi. 187).
When the intention of testators, as expressed in their wills, is
to be the criterion, it is evident that each case must depend on
its own circumstances, and it is probable that Bent ha in v.
Wiltshire, on all the circumstances of the case, would be decided
in the same way at the present day ; but the fact that the
distribution of the produce of sale was not necessarily entrusted
to the executors virtate officii would be considered only as one
point of evidence, and not as the sole ground of the decision.
In neither of the preceding cases was there any devise in fee J^^^l'^J^j" *
72
A CONCISE TREATISE ON POWERS.
lands, a
direction to
sell gives no
power to
executors.
Realty and
personalty-
blended into
one fund.
Power of
executors is
question of
intention.
of tlie land to be sold. If the land is devised direct to several
in fee, with a direction superadded that it shall be sold, there is
no implied power of sale in the executors, although the devisees
are minors. The evidence of a contrary intention afforded by
the de%-ise is too strong [Pafton v. Randall, 1 J. & W. 189, 196).
But this would not apply to cases where the devise is merely of
a life estate, and after the death of the life-tenant to be sold, as
in Bentliam v. Wiltshire.
In Ti/Men v. Hi/de (2 S. & S. 238) the fact that the produce
of the sale of realty and conversion of personalty was treated
as blended into one fund, was held sufficient evidence of inten-
tion to give the executors the power.
10. The power of executors, however, to sell real estate does not
depend on any express direction that the estate shall be sold :
but if from the whole purview of the will it appears to have
been the intention of the testator that his real estate should be
sold, and the proceeds are to be distributed in such a manner as
the executors alone can by law carry out, then there is an
implied power given to them to sell the estate. The implication
that the executors are to take the power arises from the fact that
the money is to pass through their hands and to be distributed
by them in the execution of their office, as in payment of debts
and legacies ; or it may be otherwise raised by evidence of
intention on the face of the will. But it is not enough to show
that it would be more expedient to have the sale made by the
executors than by the heir-at-law {per Parke, B., in Doe v.
Hughes, 6 Ex. 223).
Thus, it appears that the subdivision of real estate into shares,
with directions for the investment of some of the shares, will
give the executors a common law power, if the real estate be not
directly devised to any person,
A mere division without more would not probably be enough.
The distinction between a devise to A. and B., to be divided
between them in equal moieties (in which case A. and B. would
take the fee in moieties), and a devise of real estate to be
divided between A. and B., or between any number of persons,
seems too slight to found any argument upon {cf. Stevenson
V. Maijor of Liverpool, L. R. 10 Q. B. 81) ; but if such a
CREATION OF POWERS.
73
devise as the last were coupled with directions as to the invest-
ment of some of the shares, and other evidence of an intention
to convert, it seems that the testator will be considered to liave
given his executors a common law power to sell the realty.
In Moicer v. Orr (7 Ha. 473), the testator prefaced his will Sub-division
, , f)f property
with a statement tliat his property was so scattered about and intonumcrou
not realized that he could not tell what he should die worth ; he JfrSions as
then gave his estate, including copyholds of inheritance, lease- J^^^^^^*^"
holds, merchandize, money in the funds, and casli, to his
chikb-en and grand-children in twenty aliquot shares, and
directed two of such shares to be invested in the names of liis
executors in Government funds for the benefit of two of the
legatees, who were infants ; the will concluded with a request to
his executors, that they would, on his death, use their exertions
to get his property together, and divide it according to his inten-
tions therein expressed. The Yice-Chancellor said that the
division of the entire property into a number of shares, and the
direction contained in the will as to the investment and disposi-
tion of some of such shares, precluded the supposition that the
testator intended that the copyholds should remain unsold ; and
he held that the testator had directed a conversion of all his real
estate. This implied that the executors took a common law
power of sale. The testator had, in fact, directed a sale without
saying by whom it was to be made ; this (by the rule above
stated) would give the executors power to sell, even without the
blending of realty and personalty into one fund, and the direc-
tion as to the investment in the executor's names.
On the other hand, in Corn Hi v. Pea ire (7 Ha. 4? 7), the
testator gave his real and personal estate to trustees on trust, to
apply the rents for his daughters' benefit until the youngest
attained 21 ; and then to divide the whole into two equal
moieties, of which he gave one moiety to his two daughters
absolutely, and directed the other to be invested in Government
or real securities, and the dividends to be paid to the daughters
for life, and on their death the said moneys and elfects to be
divided amongst their children. The same Vice-Chancellor
thought that a mere division of real estate into moieties, and a
74 A CONCISE TREATISE ON POWERS.
direction as to the investment of one moiety, did not necessarily
operate as a conversion of more than one moiety ; the direction
to invest arose out of and was rendered necessary by the settle-
ment of the property which the testator had in view ; the
property was to he enjo^-ed in specie, and at a certain period
there was to he a division of one moiety between the two
daughters, the other moiety was to be invested ; if the testator
had said that one moiety was to be sold for the purposes of
investment, the case against the conversion of the other moiety
would have been too clear. He thought that there was no
direction which required a conversion except as to the moiety to
be settled.
It has been said of the case of Jloirer v. Orr (1 Jarm. 3rd ed.
558), that it seems to go little short of deciding that every
direction to divide implies also a direction to convert into money,
for the purpose of rendering the division more easy. It is,
however, to be observed that the will in that case contained a
direction for investment, and peculiar expressions, showing an
intention to convert, apart from the division into shares, e. (/.,
the recital that the property was not realized, implying a desire
that it should be realized, and the desire that the executors
would get his property together and divide it.
The question must depend upon the wording of each parti-
cular will. If, upon the whole language of the will, for
effecting the purposes of the will, it is plain that there was to
be a division of the property ; that the property to be so dealt
with is to go — not the land in specie, and the money in specie
— but to go among certain persons in certain shares and propor-
tions, without any distinction as to land or money ; then, if the
purposes of the will can be best effected by a conversion, and there
be no devise, it seems that the executors will take a common law
power to effectuate the pm-poses of the will ; {ef. the judgment
of Y.-C. .Stuart, in Greemcay v. Greemcay, 29 L. J. Ch. 603 ;
reversed, ihicl 605; 2 D. F. & J. 128; and see Lucas v.
Brandreth, 28 B. 273 ; Bavies to Jones, 24 Ch. D. 190 ; Flux v.
Best, 23 W. R. 228 ; Buchanan v. Angus, 4 Macq. 374 ; Nixon
V. Cameron, 26 Ch. D. 19 ; Re Cookes, 4 Ch. D. 454; and as to
CREATION OF POWERS.
76
the implication of a receipt clause, see Balfour v. Weliand, 16
Yes. 151).*
11 It may here be noted that under the Conveyancing Act, Completion
*' . r "7 executors
1881, sect. 4, where, at the death of any person dying after or adminis-
31st December, 1881, tliere is a subsisting contract enforceable contract to
against his heir or devisee for tlie sale of the foe simple or other ^''^^ ^^^^^y-
freehold interest, descendible to heirs general, in any land, his
personal representatives have power to convey the land for all the
estate and interest vested in him at liis death in any manner
proper for giving effect to the conveyance. This section enables
the legal personal representatives to convey the legal estate if
vested in the testator in freeholds : if the legal estate is out-
standing the section has no operation, but it appears to override
a devise by the testator to trustees or any other person. The
section does not extend to copyholds.
12. The intention of the testator that the executor should
take a power of sale over his real estate is sufficiently shown by
his charging that estate with the payment of his debts.
A mere p^encral direction by a testator that his Direction to
" " pay debts
debts shall be paid effectually charges them upon operates as
charge.
all his real estate.
A mere direction to adjust and pay all claims is not, however,
sufficient {Re Head and Maedoiaild, 45 Ch. D. 310).
* By the courtesy of the late Mr. Dart, I am permitted to insert his opinion
on the following case. The will, so far as material, was as follows: —
♦'Fourthly, upon the decease of A., I give, devise, and bequeath all the rest
and residue of my real and personal estate, to be divided into four equal shares,
between B., C, D., and the children, or survivors of them, of E., namely, F.,
G., and H., their one-fourth share to be equally divided amongst them, and to
be paid on their severally attaining their majority; but in reference to C.'s
one-fourth share, it is my express will and desire that the same shall be bi/ mij
executors invested in good and proper seciiritics, and that the interest arising
therefrom shall bo paid to him in quarterly instalments, and in case of the
demise of either or any of the above-named parties, the deceased's share to be
equally divided amongst the sur^•ivors in the respective portions."
Mr. Dart thought that although the mere division into shares would not have
been enough to turn what he should otherwise read as a devise into a mere
power, yet as there was a direction to invest and pay in the will, he thought
that the executors took ex officio a common law power.
76
A COXCISE TREATISE ON POWERS.
How far
generally a
charge is
limited by
express limi-
ted charge.
The rule applies whether the rccal estate be devised to the
executors or not, and wliether the testator effectually disposes of
his real estate or dies intestate with respect thereto {Shallcross v.
Fhiden, 3 Yes. 730).
13. Such general cliarge is not necessarily inconsistent with a
subsequent express charge of specific sums upon a particular
estate {Tai/Iory. Taijlor, 6 Sim. 246 ; Furder v. Thompson, 4 Dr.
& War. 303), nor even of all the debts upon a particular estate
{Graves v. Graves, 8 Sim. 43) ; and it may be stated generally
that such subsequent specific charge without more is not enough
to limit the generality of the preceding charge. The testator
can, however, of course except some of his estates from the
charge, either expressly (as in Thomas v. Britnell, 2 Yes. sen.
313), or by implication; and it has been held that a subse-
quent direction that the debts are to be paid out of a particular
estate has this effect {Donee v. Torrington, 2 M. & K. 600,
sed q/i.)
There is no inconsistency in creating two funds for the pay-
ment of debts. In Price v. North (1 Ph. 80), a testator began
by directing payment of his debts, and then gave the residue
of his personal estate (after and subject to the payment of his
debts and legacies) to his daughter. The Court held the real
estate charged with the debts in aid of the personalty. But it
is a question of intention in each case. Thus, in Palmer v.
Graves (1 Keen, 545), the Master of the Eolls said: "The
testator commences his will by saying, ' In the first place, I
direct my just debts, funeral expenses, and the charges of proving
this my will to bo fully paid.' These words, if not limited
or controlled by anything else in the will, are sufficient to con-
stitute a charge on all the real estates for the payment of debts:
not a clear, express charge on all the testator's lands, but a
charge by implication, capable of being explained by subsequent
words or a subsequent provision for the payment of debts. The
testator, after employing the words I have stated, proceeds to
make several devises and bequests, and then gives and bequeaths
unto John Graves a small quantity of silver plate, together with
the rents and profits of his freehold and leasehold premises, due
CREATION OF POWERS. 77
and accruing up to what is termed a quarter-day, which should
ensue next after his death, u-hich roita and profits I charge uifh
the pa//m(>i( of mtj said debts, fioieral expenses, and the charyis of
pron'nff this mi/ iri/L" And he held that the general charge was
controlled by the specific charge.
"Where, however, the direction that the debts shall be paid Direction that
•11 debts be paid
is coupled with a direction that they shall be paid by the execu- by executors :
tors, then, if no real estate is devised to the executors, it is (^•) Where no
' _ estate is
assumed that the testator intended that the debts should be paid devised to
only out of property which by law passes to the executors, and
therefore no charge of debts on the real estate is created ( irasse
V. Heslington, 3 M. & K. 495 ; Keeling v. Brown, 5 Ves. 359 ;
Wisden v. Wisden, 2 Sm. & 0. 396).
In Re Cameron, Nixon v. Cameron (26 Ch. D. 19), a testator
gave legacies and annuities, and proceeded : " My executors may
realize such part of my estate as they think right and in their
judgment to pay the afore-named legacies." It was held by
the Court of Appeal that this applied only to property which
the executors took as executors. Lord Selborne (p. 25) says :
" It was insisted that the words ' my estate ' thus used compre-
hended real estate : as they no doubt might if a testator gave
' all his estate ' to his executors or to any other devisees. But
when an implication adverse to an heir-at-law is sought to be
raised from a mere direction for payment of legacies, it is neces-
sary to consider whether the words are not sensible without any
such implication. The whole personal estate vests by law in the
executors : the real estate does not. The personal estate, not
specifically bequeathed, is generally the proper fund for the
payment of pecuniary legacies. When a testator directs his
executors to realize for the payment of such legacies, ' such part
of his estate as they think right and in tlieir judgment,' it is
reasonable to understand him to refer to the estate which vests
in them as executors, and not to that which does not : and the
direction in the earlier sentence of the same will, that a parti-
cular legacy is to be paid out of his estate, natm-ally means that
it is to be paid in a due course of administration." These
^o A CONCISE TREATISE ON POWERS.
observations appear to apply with equal force to debts (see Doe
V. Milbonw, 2 T. R. 721).
(ii.) Where But if any real estate is devised to the executors, then it is
devised to assumed that the testator intended that his debts should be paid
executors. ^^^ q£ ^j^^ personalty and the estate so devised, and the debts
are charged on that estate accordingly {Dover v. Gregory, 10 Sim.
393). The law is thus stated by the late Master of the Rolls
in Tanqueraij-WiUaumc v. Landau (20 Ch. D. at p. 479) : "A
direction to ' my executors to pay my debts ' has been held to
mean a direction to them to pay out of the personal estate ; but
if it is followed by a devise of real estate to the executors either
as such or in their own names, it is a direction to them to pay
out of that estate as well as out of the personal estate, and the
real estate is charged." And the same rule applies whether the
devise is to the executors beneficially or in trust, and if the
devise is in trust, it aj)plies whether the executors take the whole
beneficial interest, as in Henvelly. Whitaker (3 Russ. 343) ; or
only a life interest, as in Finch v. Hattersley (3 Russ. 345) ; or
an estate tail, as in Clotcdsley v. Pelham (1 Vern. 411) ; or no
beneficial interest at all, as in Hartland v. Murrell (27 B. 204)
(^;er Fry, J., in Bailey v. Bailey (12 Ch. D. 268), approved by
C. A., 20 Ch. D. 476). But it has been held that a direction
that the debts shall be paid by the executor, coupled with a
devise of real estate to such executor beneficially for life, will
not enable the executor to sell the fee {Cook v. Da /c^on, 29 Beav.
123).
De\-iseto one 1-J. ^Tiere there is a direction to the executors to pay debts,
executors ^^^'^ ^ devise to one or some only of the executors, the estate so
0^7- devised is not charged ( Warren v. Davies, 2 M. & K. 49 ;
TFasse v. Jleslinyton, 3 M. & K. 495 ; Keeling v. Brown, 5 Ves.
359). Nor is it charged if there are two or more executors,
and the estates are given to them beneficially in unequal shares :
the presumption that a testator, who directs payment of his
debts by his executors, and devises real estate to such executors,
imposes on them the duty of paying his debts to the extent of
the estates devised to them, is said to be inapplicable to cases
CREATION OF POAVERS. 79
where unequal benefits are given ; and it has been held that, in
such a case, the testator could not have intended tliera to bear
his debts equally, and therefore tliat the real estate is not
charged at all {Harris v. Watkins, K^iJ, 438). It may be
doubted wliether the conclusion is satisfactory : although it may
well be tliat the testator did not intend devisees of unoqual
estates to bear his debts equally, he may well have intended
them to bear the debts rateably according to value, as in tlie
case of a devise to two persons of the equity of redemption of
two estates subject to one mortgage. And the exception does
not apply where the whole legal fee is devised to the executors,
altliough they are interested beneficially in unequal shares {Re
Tanqi(cr(ii/-Will(iitme, 20 Ch. D. 465).
16. A charge of debts by mil coming into operation Charge of
prior to the IStli of August, 1859, on real estate, power to
gives the executors power to sell the real estate
and to give valid discharges for the purchase-
money [Elliott V. 3Ierryman, 1 W. & T. L. C. ;
Dolton V. Heiven^ 6 Madd. 9 ; Ball v. Harris, 4 M. &
Cr. 264).
This rule also holds good in the case of wills coming into
operation subsequently to the 13th of August, 1859, unless
there is a devise of the testator's real estate for his whole estate
or interest to trustees who are not the executors (see 22 & 23
Yict. c. 35, poiit).
This charge of debts affects the equitable but not the legal
estate [per Lord Langdale, in SJiaw v. Borrcr, 1 Keen, 576).
In that case (which was a suit for specific performance) the
testator, after charging his debts on his real estate, devised his
advowson of II. to J. K. S. and J. C. and theu' heirs on certain
trusts for IL "W. tS., and subject thereto to sell, and he appointed
J. K. S., li. W. S., and J. K. S. B. executors. Lord Langdale
said that the Court would, in a suit by creditors to whicli the
executors were parties, compel the trustees for special purposes
80 A CONCISE TREATISE ON POWERS.
to raise the money requisite for payment of the debts, and that
the trustees and executors might themselves do that which the
Court would compel them to do, on the application of the
creditors ; and he held that the executors and trustees together
could make a good title.
In Hodkimon v. Qiihni (1 J. & H. 303), V.-C. Wood said:
" In suits of specific performance of this kind, where there is a
charge of debts, and no distinct provision as to the person by
whom the sale is to be made, the executors take an implied
power of sale for payment of debts, though the persons bene-
ficially interested are capable of concurring ; and where an
attempt is made to resist a sale by them, the executors are
entitled to insist on a conveyance of the legal estate."
In Gosling v. Carter (1 Coll. 644), the purchaser was held not
bound to complete without the concurrence of the heir of the
testator.
In Robimon v. Lomdcr (17 B. 592 ; 5 D. M. & G. 272), the
question at issue was the power of the executor to give a valid
receipt for the purchase-money of an estate charged with the
payment of debts. The testator in that case devised three estates,
viz., Eutland Place to A. for life with contingent remainders
over, Sandfield to B. for life with like remainders over, and
Arnold to B. in fee, subject to and charged with the payment
of a mortgage of £200 secured on Rutland Place, certain legacies,
and his just debts, &c. ; and if Arnold should be insufficient,
then he charged Sandfield with the payment thereof, and he
appointed B. sole executor. B. sold Sandfield to a purchaser
with notice of tlie will ; the £200 mortgage debt was not paid
out of the purchase-money, and the devisees of Putland Place
sought to make Sandfield liable thereto in the hands of the
purchaser. The Master of the Polls and the Lords Justices on
appeal held that the testator evidently intended that the executor
should sell, and the executor must therefore be considered as
invested with all necessary powers, including a power to give
receipts. It is to be observed that the question in this case was
confined to the executor's power of giving receipts, and was
raised by a cestui que trust. No question was raised by the
CREATION OF TOWERS.
purcliaser from tlio executor as to whether he obtained the legal
estate.
It has been said that a title depending for its validity on the
decision in Eobinson v. Loicater would not be forced upon an
unwiUing purchaser {per L. J. Turner in Cook v, Damon, 30 L.
J. Ch. 3G0, 3 D. F. & J. 127). But see A/e.randcr v. Mi/Is
(6 Ch. at p. 131), where it is said that, as a general and almost
universal rule, the Court is bound as much between vendor and
purchaser, as in every other case, to ascertain and determine as
it best may wliat the law is, and to take that to be the law which
it has so ascertained and determined. This, however, is qualified
by the Court of Appeal in Palmer v. LocJcc (18 Ch. D. 381), and
is restricted to cases where there are no serious grounds for doubt ;
(and see Be Thachcray and Young, 40 Ch. D. 34 ; 2 Dart, 123G).
It has been expressly decided at law that the executors under
a power implied by a charge of debts could not convey the legal
estate before 22 & 23 Yict. c. 35.
In Doc d. Jones v. IIt((jJm (6 Exch. 223), a testator charged
all his real and personal estate with payment of his debts, and
died intestate as to one moiety. The Court held tliat a simjile
charge of debts did not give a common law power to the execu-
trix to sell for theii^ payment, but that any right the executrix
might have must be enforced in equity ; (see, too, KenricJc v.
Beauclerh, 3 B. & P. 175 ; Doe v. Claridije, 6 C. B. 641).
It appears therefore that a simple charge of debts gives the
executors an equitable power only, and that on a sale by them
the purchaser is entitled to have the legal estate conveyed to
him by the person in whom it is outstanding (see per Jessel,
M. R., in Tanqueray-Willaume v. Landau, 20 Ch. D. 477). But
see Greetham v. Colton (34 B. 615) ; and in Eidsforth v.
Armstead (2 K. & J. 333), where, after a charge of debts, the
devise was to the use of trustees during the life of A., and after
her death to the use of her appointees by will, and in default of
appointment, to the use of her right heirs, and the testator
charged his estates with the payment of £700 ; it was objected
that the purchaser did not get the whole legal fee, but the title
was forced on the piu^chaser, the Yice-Chancellor saying that
81
F.
G
82 A CONCISE TREATISE ON POWERS.
the testator liaving charged his real estate with a sum of
money, must be taken to have given an implied power of sale
to some person to raise the simi required, and that the donee
must be ascertained from the whole of the will. He does not
touch on the difficulty that the purchaser did not get the whole
legal fee.
And in Wngley v. Sylxos (21 B. 337), where there was, first,
a charge of debts, then a devise to trustees for 500 years, and
then a devise to five persons in fee as tenants in common, who
were also appointed executors, it was held that 33 years after the
testator's death the sur\iving executors could sell, and specific
performance was decreed against the purchaser, although it
appears that he could not get more than two-fifths of the fee ;
(see this case observed on, Sug. Pow. 121).
Purchaser not 1 7. A purcliaser from executors selling under a power
to existence of Sale Created by a charge of debts is not bound,
of debts. ,, ••111 11
and ought not, to inquire whether there are debts
or not, if such sale is made within a reasonable
time after the testator's death.
This rule is, of course, inapplicable to a purchaser who has
actual knowledge that all debts have been paid, and that the
purchase-money is to be applied only for the vendor's own use
and not for any purpose whatever connected with the estate ;
for instance, if it was to be taken in satisfaction of a previous
debt, due from the executor himself to the purchaser {2)er Lord
Hatherley in Corser v. Carficrig/it, L. R. 7 H. L. at p. 741,
approving Watkin v. Cheek, 2 Si. & St. 199) ; but where the
executors have a power of sale for other purposes (as for the
payment of legacies, or for distribution among beneficiaries),
the rule apphes, though the purchaser is aware that all debts
have been paid, or indeed that there never were any debts
{Forbes v. Peacock, 1 Ph. 717 ; StronghiU v. Anstey, 1 D. Gr.
M. & G-. 635 ; Carlyon v. TruscoU, 20 Eq. 348).
" When a testator by his wiU charges his estate with debts and
legacies, he shows that he meant to entrust his trustees" (or
CREATION OF POWERS. 83
executors) " with the power of receiving the money, anticipating
that there will be debts, and thus providing for the payment
of them. It is by implication a direction by the testator that ho
intends to entrust the trustees with the receipt and application
of the money, and not to throw any obligation at all upon the
purchaser or mortgagee ; that intention does not cease because
there are no debts; it remains just as much if there are no debts,
as if there are debts, because the power arises from the cir-
cumstance that the debts are provided for, there being in the
very creation of tlie trust a clear indication amounting to a
declaration by the testator that he means that the trustees are
alone to receive the money and apply it. In that way all the
cases are reconcileable and all stand upon one footing, namely,
that if a trust be created for the payment of debts and legacies,
the purchaser or mortgagee shall in no case bo bound to see to
the application of the money raised " (;;(?>* Lord St. Leonards,
1 D. G. M. & a. 653).
But if the trust or charge were for payment of certain Charge of
scheduled debts only {Doran v Wiltsldre, 3 Sw. 701), or of ^lebts or
legacies only [Johnson v. Kennett, 3 M. & K. 630, Honi v. Horn, H'acies only.
2 S. & S. 448), the purchaser was bound to see to the application
of the purchase-money (Lewin, 9th ed. 505) ; and of course the
purchaser would in any event be liable if he colluded with the
executor in a sale for an improper purpose, or with a view to a
misappropriation of the purchase-money [Eland v. Eland, 4 M. &
C. 427). In the absence of collusion, however, it is submitted
that a dii-ection to the executor to pay scheduled debts or lega-
cies gives him power to sell real estate for the purpose as much
as a direction to pay debts generally, although it is possible that
it might be necessary to show that the legatee was alive, or that
all the scheduled debts had not been paid in order to show the
existence of the power ; but the power to give a receipt for the
purchase-money is now a statutory power, and if the power to
sell is once established, and no collusion shown, it is submitted
that (since 1860) the power to give receipts follows as incidental
to the power of sale.
And the fact that the mortgage or sale is made by one of ^alo^by^^^ _^
g2
84 A CONCISE TREATISE ON POWERS.
one of several several exGcutors, wlio is also devisee of the estate mortgaged or
executors.
sold, does not prevent him from giving a valid receipt for the
consideration money {Corscr v. Carticrig/if, L. H. 7 H. L. 731).
As the legal estate is devised to him, he is the proper person to
convey, and (being an executor) he can also give a good receipt
[Coh/er V. Finch, 5 H. L. C. 905) ; but the purchaser's protection
is independent of the possession of the legal estate [ibid.).
Lapse of And the fact that a considerable time has elapsed since the
time.
testator's death does not affect the validity of the power, unless
it be so great as to raise a presumption that all debts have been
paid.
The Court of Appeal, in Tanqueray- WiUaionc v. Landau (20
Ch. D, 465), have laid down twenty years as the period within
■which a purchaser may properly presume that there are unpaid
debts.
" There is no distinction between a devise of estates to execu-
tors, subject to a charge of debts with the implied power of sale
•which follows from it, and a trust for payment of debts where
the legal estate is expressly devised to trustees for the purpose
of making such payment. In the case of such a trust it is
perfectly well established that where the death is recent the
purchaser ought not to inquire, and does not inquire, whether
there are debts or not, and if he does not inquire and has no
notice that the debts are paid, he is quite safe. In the same
way, where there is a charge of debts with an implied power of
sale, and the purchaser* gets the legal estate, he would be pro-
tected by a Court of Equity whether there are such debts or
not, unless he has knowledge that there are no such debts.
.... The only remaining point is what period of time is
sufficient to raise a presumption that the debts have been paid ?
.... I think it desirable that a rule should be laid down upon
which parties may act without having to come to a Court of
Equity, and in my opinion the reasonable period is twenty
years. The reason why I say twenty years is this : that is the
period of limitation for a specialty debt, and we know as a fact
* And eyen if he did not get the legal estate {Colyer v. Finch, 5 H. L. C. 905).
CREATION OF POWERS. oO
that most landowners owe mortgage debts. It, therefore, seems
reasonable to say that after twenty years, which is sufficient to
bar mortgage debts and all other specialty debts, there is a ♦-
presumption that the debts are paid, especially when you find a
beneficiary in the enjoyment of the estate — a circumstance
mentioned by Lord St. Leonards in Stroufjhill v. Amtey (1 D,
M. & G. 654)." The older cases of Sabin v. Ileapc (27 Beav.
553) ; Forbes v. Pcacoclc (12 Sim. 528) ; Wnfjh-y v. Syhs (21
Beav. 337) ; and Greciham v. Colton (34 Beav. 615), in which
the periods that had elapsed were respectively 27, 25, 33, and 13
years, may now be disregarded in this respect.
The same rule has been applied to the case of executors Executors
selling lease-
selling leasehold estates. holds.
In Re Mohjncux and White (13 L. E. Ir. 382; 15 ibid. 383),
a testator who died in 1847 possessed of leaseholds for years, by
his will directed his debts to be paid, and bequeathed the residue
of his property after payment of his debts to his executors in
trust to pay certain annuities, some perpetual and others ter-
minable. There was no specific bequest of the leaseholds.
Thirty-seven years after the death, the executors put up the
leaseholds for sale : it was not suggested that any debt of the
testator remained unsatisfied. Y.-C. Chatterton and the Court
of Appeal held that the rule in Tanqueray- Willaume v. Landau
applied, and that after the lapse of twenty years the purchaser
could not safely accept the title from the executors without
being satisfied that there were unpaid debts which justified the
sale; (and see ReByan and Cavanagh, 17 L. E. Ir. 42). On the
other hand, in Re Whistler (35 Ch. D. 561), Kay, J., said that
he was not aware of any authority for the doctrine that after
twenty years the power of an executor to sell personal estate
was to be deemed at an end, and he considered that the rule
established by Tanqucray-WiUaume y. Landau did not apply to
the case of such an executor. The case of MoJyneux and Wliite
was not brought to his notice, and the contract in Re Whistler
was made mthin the twenty years.
The rules stated in this and the preceding section are sub-
ject to the qualification common to all general rules of
86 A CONCISE TREATISE ON POWERS.
constnictionfortlie ascertainment of a testator's intention, namely,
*' unless a contrary intention appear by the will." It is com-
petent for a testator expressly to declare by bis will that his
executors are not thereby given power to sell his real estate,
and he may equally declare this intention by implication : and
any argument founded on the inconvenience of a direction to
pay debts without any machinery to raise the money to pay
them, is usually met by the answer that the testator never con-
templated the probability that his real estate would be required
for payment of his debts.
Devisee in 18. It is HOW enacted by 22 & 23 Yict. c. 35, s. 14, "Where
raise money ^J any will which shall come into operation after the passing of
^y-'^^^'^^en. ^i^g ^^^ (13 August, 1859), the testator shall have charged his
real estate or any specific portion thereof with the payment of
his debts, or with the payment of any legacy, or other specific
sum of money, and shall have devised the estate so charged to
any trustee or trustees for the whole of his estate or interest
therein, and shall not have made any express provision for the
raising of such debt, legacy, or sum of money out of such estate,
it shall be lawful for the said devisee or devisees in trust, not-
withstanding any trusts actually declared by the testator, to
raise such debts, legacy, or money as aforesaid, by a sale and
absolute disposition by pubhc auction or private contract of the
said hereditaments, or any part thereof, or by a mortgage of the
same, or partly in one mode and partly in the other ; and any
deed or deeds of mortgage so executed may reserve such rate of
interest, and fix such period or periods of repayment as the person
or persons executing the same shall think proper.
Power to " S. 15. The powers conferred by the last section shall extend
extend to 8ur- inj •li.ij.jj-i
vivors &c. "to 3.11 and every person or j)ersons m whom the estate devised
shall for the time being be vested by survivorship, descent, or
devise, or to any person or persons who may be appointed under
any power in the will, or by the Court of Chancery, to succeed
to the trusteeship vested in such devisee or devisees in trust as
aforesaid.
Executors to " S. 16. If any testator who shall have created such a charge
&T^wliere^no ^^ ^^ described in the 14th section, shall not have devised the
CREATION OF POWERS. 87
heredit.araents charged as aforesaid in such terms as that his siofficient
whole estate and interest therein shall becorao vested in any
trustee or trustees, the executor or executors for the time being
named in such will (if any) shall have the same or the like power
of raising tlie said moneys as is hereinbefore vested in the devisee
or devisees in trust of the said hereditaments, and such power
shall from time to time devolve to and become vested in the
person or persons (if any) in whom the executorship shall for
the time being be vested ; but any sale or mortgage imder this
Act shall operate only on the estate and interest, whether legal
or equitable, of the testator, and shall not render it unnecessary
to get in any outstanding subsisting legal estate.
" S. 17. Purchasers or mortgagees shall not be bound to Purchasers
enquire whether the powers conferred by ss. 14, 15, and 16 of enquire as to
this Act, or either of them, shall have been duly and correctly p'jSons of
exercised by the person or persons acting in virtue thereof. •'^'^*-
"S. 18. The provisions contained in ss. 14, 15, and 16 shall Saving of pro-
vious rights,
not in any way prejudice or affect any sale or mortgage abeady
made or hereafter to be made under or in pursuance of any will
coming into operation before the passing of this Act ; but the and of rights
of (IgVISGGS ITl
validity of any such sale or mortgage shall be ascertained and fee or in tail.
determined in all respects as if this Act had not passed : and the
said several sections shall not extend to a devise to any person
or persons in fee, or in tail, or for the testator's whole estate or
interest charged with debts or legacies, nor shall they affect the
power of any such devisee or devisees to sell or mortgage as he
or they may by law now do."
It will be observed that s. 14 gives the power of sale to the Questions
de\isees in trust, not to the executors. Apart fi'om the Act, the sect. f4,
executors have an equitable power of sale : and it has not been
decided whether the effect of the section is to take away this
power from the executors, nor whether the purchase-money on a
sale by the devisees in trust ought to be paid to such de-\dsees or to
the executors whose duty it is to pay the debts. The power to
give receipts contained in s. 23 throws no light on this. But
the latter question would arise in any case where the executors
and devisees in trust are different persons ; and the question of
88 A CONCISE TREATISE ON POWERS.
the coutinuance of the executors' power would arise in the like
case where the legal estate was outstanding in some person whose
concurrence in a sale could be obtained by the executors. It
may also be contended that s. 14 does not extend to any devise
of a mere equitable estate, but only to a legal devise.
on sect. 16, It has been held that an administrator with the will annexed
cannot exercise the power given by sect. 16 {Clay to Tctley, 16
Cli. D. 3) ; but that an acting executor, where the other has
renounced, can do so {Re Fisher and Haslettj 13 L. R. Ir. 546;
and see 21 Hen. YIII., c. 4; jjost, sect. 21; and Conveyancing
Act, 1882, sect. 6).
on sect. 18. The 18th section has recently received judicial interpretation.
In Re Wilson, Pennington v. Pai/ne (34 W. E. 512), Kay, J.,
explains it thus : " The meaning is that where a testator has
devised his whole estate and interest dii'ectly to A., or to A. and
B., or to any number of persons as tenants in common, or joint
tenants, in fee or in tail, so that the devisees or devisee could
themselves mortgage the property, then the executors are not to
have the j)Ower. But where the estate is devised by way of
settlement, so that there is not any individual or number of
individuals who are able to make a title to a mortgagee, then that
is the very case to which sect. 16 is intended to apply."
General 19. The scheme of the Act appears to be briefly as follows :
Act. Where the testator has devised the whole estate {qu. legal) to
trustees, they are to sell. Where he has devised to uses in
succession {i.e. not merely to devisees in fee, or in tail), then the
executors are to sell. And where he has devised in fee, or in tail,
then the devisees are to sell. If the legal estate were out-
standing {e.ff. in a mortgagee), and the executors desired to sell
the equity of redemption only, or to join in a sale by the
mortgagee, then it is submitted that the equitable power of the
executors remains unaffected, and that they can sell and give a
good discharge. If the legal estate is devised within the mean-
ing of sect. 14 or the proviso in section 18, it appears to have
been assumed that the executors are the projoer persons to give a
receipt (see Corser v. Cartirnf//if, L. R. 7 II. L. 731, at j). 740;
and West of England Bank v. Murch, 23 Ch. D. 138, at p. 151).
CREATION OF POWERS. 89
20. The Act expressly authorizes sale or mortgage : and Re Mortgage or
. Bale autho-
Wihon, above cited, was the case of a mortgage. rL;od.
It is submitted that, apart from the Act, whore executors have
a power of sale for payment of debts, and, indeed, in all cases
■where charges are created but no mode of raising such charges
is provided, and tho estate is given beneficially as real estate,
the power may be exorcised, or tho charges raised, by mortgage
instead of by sale. A mortgage is only a conditional sale [Mills
V. Banks, 3 P. W. 0) ; and as the testator has not expressly
directed, but only authorized, a sale, and has contemplated the
continued existence of his estates as land, it may well be that
executors who raise the charge by mortgage, instead of by sale,
are giving more accurate effect to the testator's wishes, than if
they sold out and out ; (see StrougJiill v. AnsIc//, 1 D. M. and
Gr. 642). It would bo otherwise, if there were an express trust
for sale : such a trust would not, as a general rule, authorize a
mortgage.
21. By 21 Hen. VIII., c. 4, after a preamble stating that divers Sale by acting
GXGciitors
persons had willed tliat their lands should be sold by their under 2i Hen.
executors for payment of their debts, &c., but that although ^^^^i ^- ^^
some of tlieir executors accepted, others refused to intermeddle
with the execution of the will or the sale of the lands ; " and
forasmuch as a bargain and sale of such lands, &c., after the
opinion of divers persons, can in no wise be good or effectual in
law, unless the same bargain and sale be made by the whole
number of the executors named to and for the same " — ; it is
enacted " that, where part of the executors named in any such
testament of any such person so making or declaring any such
will of any lands, tenements, or other hereditaments to be sold
by his executors after the death of any such testator do refuse
to take upon him or them the administration and charge of the
same testament and last will wherein they be so named to be
executors ; and the residue of the same executors do accept and
take upon them the care and charge of the same testament and
last will, then all bargains and sales of such lands, tenements, or
other hereditaments so willed to be sold by the executors of any
such testator, as well heretofore made as hereafter to be made by
90
A CONCISE TREATISE ON POWERS.
ExtoDclod
application of
the Act.
Copyholda
•within the
Act.
Disclaimer of
power under
Conv. Act,
1882.
liim or them only of the said executors as so doth accept, or that
heretofore hath accepted and taken upon him or them any such
care or charge of administration of any such will or testament,
shall he as good and effectual in the law, as if all the residue of
the same executors named in the said testament so refusing the
administration of the same testament had joined with him or
them in the making of the bargain and sale of such lands, tene-
ments, or other hereditaments so willed hy the executors of any
such testator, which heretofore hath made or declared or that
hereafter shall make or declare any such will of any such lands,
tenements, or other hereditaments after his decease to be sold by
his executors."
It is submitted that the Act extends to enable a single acting
executor to sell ; and, although the letter of the statute applies
only to cases where executors have a power, yet, being a bene-
ficial law, it is by construction extended to cases where lands are
devised to executors to be sold (Co. Litt. 113r/),
In Bonifaut v. Greenfield (Cro. Eliz. 80), there was a devise to
four persons named and their heirs to sell and apply the money
to the performance of the will, and the four were appointed
executors : one renounced, and it was held that the other three
could sell. But in Denne v. Judge (11 East, 288), where there
was a devise to five trustees upon trust to sell and apply the
purchase-money to certain uses, and a residuary gift, and the
five trustees were also appointed executors, it was held that the
statute had no application. Lord Ellenborough said that the
estate was not devised to them as executors, but as devisees,
and that they had nothing to do with the land as executors : if
the fund, when raised, had been distributable by them in that
character, that might have brought the case within the Act.
Copyholds are within the Act : and a disclaimer relates back
so as to take effect cib initio, and validate a sale by the acting
executors made before the execution of such disclaimer {Pepper-
corn V. Way man, 5 De G-. & Sm. 230).
By the Conveyancing Act, 1882, sect. 6, it is enacted that a
person to whom any power, whether coupled with an interest or
not, is given, may by deed disclaim the power, and after dis-
CREATION OF POWERS. 91
claimer shall not bo capable of exercising or joining in the
exercise of the power. On such disclaimer the power may be
exercised by the other or others, or the survivors or survivor of
the others of the persons to whom the power is given, unless the
contrary is expressed in the instrument creating the power.
This section applies to powers created by instruments coming
into operation cither before or after the commencement of the
Act.
It is submitted that this section applies to the power of sale Application of
given to executors by a charge of debts, notwithstanding that
the marginal note refers to trustees. Such marginal notes form
no part of the Act and are not binding {Clay don v. GreeUy
L. E. 3 C. P. 511 ; Att.-Gen. v. G. E. IL Co., 11 Ch. D. 449
at pp. 461, 4G5 ; and Sntfon v. Si((fo)i, 2'2 Ch. D. oil explaining
Be Venour, 2 Ch. D. 522).
It may here be added that there is in Ireland no statute cor-
responding to the 21 lieu. 8, e. 4 ; and consequently where one
of two executors renounced probate, it was held by Cusack-
Smith, M. R., that his acting co-executor could not afterwards
exercise the power of sale which had been vested in both
{Thompson v. Todd, 15 Ir. Ch. R. 337). But it has recently
been held {lie Fisher and UasMt, 13 L. E. Ir. 546) that the
defect has been remedied by the 6th sect, of the Conveyancing
Act, 1882. In the case cited a testator du'ected that all his just
debts should be j)aid as soon as conveniently might be after his
decease, and further directed that his house property and the
ground-rents payable to him should be sold by his executors,
and he appointed A. and B. his executors. A. renounced pro-
bate and B. alone proved, and afterwards contracted to sell the
real estate. On a Y. and P. summons by the pui^chaser, Chat-
terton V. C. held that the renunciation under seal of A. operated
as a disclaimer by deed of the power of sale by A. within the
meaning of sect. 6 of the Conveyancing Act, 1882 ; and that B.
could alone exercise the power.
22. It is stated (Co. Litt, 113 a.) that, albeit one executor Executors
refuse, yet the acting executor cannot make sale to him that chase their"
refused, because he is party and privy to the last will, and testator's
92 A CONCISE TREATISE ON POWERS.
remains executor still. This is not now law {M(icJ:intosh v.
Barber, 1 Bing. 50, 7 Moore 315 ; and see Sfacei/ v. ElpJi, 1
M. & K. 195.)
But a continuing executor cannot, either immediately or by-
means of a trustee, be the purchaser from himself of any part
of the assets, but shall be considered a trustee for the persons
interested in the estate, and shall account for the utmost extent
of advantage made by him of the subject so purchased {Hall
V. HaUet, 1 Cox, 134). This is involved in the rule of equity
that a trustee cannot buy from himself {Fox v. Machrcth, 2
B. C. C. 400). But a sale by acting executors to one of them-
selves or to a trustee for one of themselves was good at law
{Mackintosh v. Barber, cited above),
23. The power of an executor is not determined by the death
of his co-executor, but survives to him {Flanders v. Clark, 3
Atk. 509. See 2^ost, Survivorship of Powers; and Conveyancing
Act, 1881, sect. 38).
Salebysur- And Coke says (Co. Litt. 113 r/) : The executors having but
tors, when ' a power to sell, they must all join in the sale. Then put the
case that one dies : It is regularly true that, being but a bare
authority, the survivors cannot sell. But, if a man deviseth
his land to A. for a term of life, and that, after his decease, his
land shall be sold by his executors generally, and make three or
four executors, and during the life of A. one of the executors
dieth, and then A. dieth, the other two or three executors may
sell, because the land could not be sold before, and the plm-al
number of his executors remain. But if they had been named
by their names, as by J. S., J. N., J. D., and J. Gr., his execu-
tors, then in that case the survivors could not sell the same,
because the words of the testator could not be satisfied. But if
a man deviseth land to his executors to be sold, and the one
dieth, yet tlie survivor may sell the land ; because, as the state,
so the trust shall survive.
Mr. Hargrave, in his note to the above section, contends that
where a power of selling is given to executors, or to persons
nominatim in that character, a surviving executor ought to be
able to exercise the power, for, by the death of his co-executors,
CREATION OF POWERS. 93
the whole character of executors becomes vested in the survivor,
and the power being annexed to the executors ratione officii, and
the office itself surviving, the power annexed should also survive.
24. In all cases, except of special trust and autliority without Powers of
. •■ « executor of
the office of executorship, the executor of an executor, now lar executor,
so ever in degree remote, stands as to the points both of being,
having and done, in the same plight as the first, and immediate
executor (2 Williams on Executors, 8th ed. 9G3). It is stated
by Wentworth (Off. Ex. c. 20, p. 4G2, 14th ed.) that a special
trust recommended to an executor, as to sell land, is not j)er-
formable by his executor, and accordingly Lord St. Leonards
(Pow. 129) says that, in the absence of clear intention, the
representative of an executor cannot exercise a power vested in
the executor, and for tliis he cites a case (19 Hen. YIII., 9) : "If
a man declare his will that B, and C, his executors, shall sell
his land, and die, and 13. dies, and C. makes D. his executor,
and dies, and D. sells, this is void, for the trust is strict." It
is to be observed that tliis is not a case of a power given to
executors simply, but to persons nominatim, who are described
as executors ; and it would appear reasonable that, if a man
directed that his executors should sell his land, this should mean
every person who may fill that office ; for the power of an execu-
tor is founded upon the special confidence and actual appoint-
ment of the deceased, and such executor is therefore allowed to
transmit that power to another in whom ho has equal confidence ;
and so long as the chain of representation is unbroken by any
intestacy, the ultimate executor is the representative of every
preceding testator (1 Williams on Executors, 258, and Har-
grave's note, Co. Litt. 113a; and see i^ost, Survivorship of
Powers) .
And, moreover, it appears that where the executors take an Wlicre the
implied j)ower, the executor of an executor may sell, the intent implied,
being that the power shall be executed by the person into whose
hands the money is to come {Forbes v. Peacock, 11 M. & W. 630,
and Sug. Pow. 116, citing 1 Cha. Ca. 178 ; Sabin v. Reape, 27
B. 553).
The question in each case would be, whether the testator in
94
A CONCISE TREATISE ON POWERS.
Acts of execu-
tor before
probate.
Sale of real
estate.
the particular instance intended to repose a personal confidence
in the donee of the power or not. There is nothing impossible
or illegal in allowing a man to repose confidence in persons
whom he does not know (Sug. Pow. 129). If it were other-
wise, this would be a simple solution of the difficulty that often
arises in determining whether an implied power of sale is to be
exercised by the executors or the heir ; for nemo est Jueres
viventis, and a man cannot say with certainty who his heir may
be. Hence the objection that, although a man might trust his
executor whom he does know, he cannot intend to trust his
executor's executor, whom he does not know, is of no weight.
25. An executor derives his authority from the will, not
from the probate, but the probate is the necessary evidence of
his executorial character. Probate, when taken out, relates back
to the date of the death. Accordingly it has been held that an
act done by an executor before probate is valid, provided the
will be ultimately proved, although the executor who did the
act died without proving the will {Wanliford v. JFanlford,
Salk. 299). In Brazier v. Hudson (8 Sim. 67), a term of years
was vested in A. ; he died, having appointed B. his executrix ;
she assigned the term to C, and died without proving. It was
held that on letters of administration to A. with the will an-
nexed being taken out, the assignment to C. would be established.
So, too, if administration be obtained by suppressing a will which
contains an appointment of executors, such administration is
avoided ab initio by the title of the executors when probate is
granted {AhraniY. Cunningham, 2 Lev. 182). But it is other-
wise, if the will contains no appointment of executors {JBoxall
V. i?o.m//, 27 Ch.D. 220).
It would seem to follow from this that executors, who have a
power to sell real estate, may exercise it before taking out
probate, and give a valid title to a purchaser ; but in order to
complete that title, so as to make it marketable, it must be
shown that they were the persons in whom the power was vested,
and this can only be done by the production of probate.
And in Newton v. Metropolitan Railway Co. (1 Dr. & Sm. 583),
where a biU was filed by executors before probate, alleging that
CREATION OF PO\VERS. 9'5
the will had not been proved, and prajnng an injunction to
restrain the company from taking or continuing in possession
of certain leaseholds contracted to bo sold to the company by
their testator, the Court hold that it was perfectly competent for
the plaintiffs to file their bill, alleging the truth as to the pro-
bate not having been yet granted, &c., alleging that the company
had taken possession, and to apj»ly for an injunction to restrain
them from retaining possession until the purchase-money was
paid, even if the grant of probate was still delayed. But it was
also held that, although executors can make an assignment, and
give a receipt for purchase-money, which are binding, yet a
purchaser is not bound to pay the purchase-money until probate,
because, till the evidence of title exists, the executors cannot
give a complete indemnity.
This would appear to apply to the case of a sale of real estate
by executors under an implied power, given to executors as such.
In such a case it would appear that a purchaser is entitled and
ought to refuse to complete until probate has been taken out.
There is a conflict of oi^inion as to whether a power expressly Powers ex-
given by the will to the executors exists in, and can be ex- to^execv^ora^
ercised by executors who renounce.* Sir E. Y. Williams "wbo renounce.
(1 Executors, 290, 8th ed.) thinks not, imless the power is
given to them in their proper names, and without reference
to their office of executors ; and he cites Perkins (548) : —
"If a man will that A. and B. his executors, shall sell, &c.,
* By 20 & 21 Vict. c. 77, s. 79, it is enacted that where any person, after the
commencement of that Act (25 August, 1857) renounces probate of the will of
which he is appointed executor, or one of the executors, the rights of such
person in respect of the executorship shall wholly cease, and the representation
to the testator and the administration of liis effects shall and may, without any
further renunciation, go, devolve, and be committed in like manner as if such
person had not been appointed executor. And by the 21 & 22 Vict. c. 95, s. 22,
■whenever an executor appointed in a will sui-vivcs the testator, but dies without
having taken probate, and whenever an executor named in a will is cited to take
probate, and docs not appear to such citation, the right of such person in respect
of the executorship shall wholly cease, and the representation to the testator and
the administration of his effects shall and may, without any fiuther renunciation,
go, devolve, and be committed in like manner as if such person had not been
appointed executor. (As to retracting renunciation, seo/w the goods of GiU, L. R.
3P. &D. 113.)
96
A CONCISE TREATISE ON POWERS.
Equitable
estates.
and tliey refuse before the Ordinary, yet it seems tliey may
sell, because they are certainly named, so that it appears the
will of the testator is that they shall sell whether they refuse or
not. But otherwise it shall be (as it seems) if he will that his
executors shall sell, without expressing their names, and they all
refuse before the Ordinary, they cannot sell " (and see Yates
V. Comptou, 2 P. W. 308). Lord St. Leonards (Pow. 118) says
that they can exercise it ; and this seems to have been expressly
decided in a case, temp. Hen. YIL (Sug. Pow. 893), at any
rate as to equitable estates, where it is said, " And if a man has
feoffees upon confidence, and makes a will that his executors shall
alien his lands, there if the executors renounce administration of
the goods, yet they may alien the land, for the will of land is
not a testamentary matter, nor have the executors to interfere in
this will, except so far as a special power is given to them."
Legal estate. " And if a man make his will that his executors shall alien his
lands without naming their proper names, if they refuse the
administration or to be executors, yet they may alien the land.
Quod fuit concession per Fineux et Tremaile for clear law. Pede
noH dcdixit.^' It is to be observed, however, that this was
before the Statute of Wills, 32 Hen. YIIL, c. 1 ; and the will
therefore acted merely as a direction to the feoffees, and had no
validity at law.
But the administrator cannot sell if no executors be appointed
or if the executors renounce. " And if a man has feoffees in
his land, and makes his will that his executors shall sell his
land, and then he does not make executors, then the Ordinary
shall not meddle with the land, nor the administrators neither,
for the Ordinary has only to meddle with testamentary matters
as of goods, and consequently no more can the administrator
who is but his deputy. And therefore it was lately adjudged
in the Exchequer Chamber by all the Judges of England that
if a man makes a will of his lands that liis executors shall sell
the land and alien, &c., if the executors renounce administration
and to be executors, then neither the administrators nor the
Ordinary can sell or alien, &c. Quod fuit concessum per Rede et
Tremaile for good law." (See, too, lie Clay and Tetley, 16 Oh. D. 3.)
Administrator
cannot sell.
CREATION OF TOUKliS. 97
The question in all such cases really is, whether the confidence
is reposed in the individuals named, or in the persons who lU-
factu fill the given office. In AfL-Gen. v. Fletcher (5 L. J. Ch.
75), there was a gift to " charitable purposes according to the
best judgment of M., sole executrix of the will." M. renounced ;
and Lord Langdale held that the power was coupled with the
office and could not be exercised after renunciation ; but the
point does not seem to have been argued. And in Jladc/en v.
Madden (23 L. 11. Ir. 167), a testatrix gave two houses, held
under a lease for lives renewable for ever, to her brother M. 13.,
in trust for the clothing and education of his children ; and
continued, " Should my brother wish to emigrate with his
family, I leave to my executor J. L., full power to raise money
on or to sell those houses to enable him to do so ; but this is
only if he clearly sees it more beneficial for M.'s young family ;
and after paying all expenses of the voyage, the sm-plus sum to
be, by my executor, applied as he shall see best for the benefit
of my nieces;" and she appointed J. L. sole executor of her
will. He renounced probate ; and administration was granted
to M. B. The latter, having made arrangements to emigrate,
sold the houses to X., with the consent of J. L., who joined in
the conveyance. Many years afterwards X.'s representatives
contracted to sell the houses, and the purchaser's objection that
on the renunciation of J. L. the power of sale ceased to be
exerciseable, was overruled by the V.-C, who held that the
power was given to J. L. in his individual capacity, and not
rirtute officii; (and see Crairford v. Fora/iau; (1891) 2 Ch. 261).
It might perhaps be considered that in every case where a
testator directs a sale of his lands by his executors, and appoints
A. and B. executors, he means that A. and B. shall sell his
land ; but this would not apply to powers annexed by implica-
tion to the office of executor ; in such a case, at any rate, it
seems that executors who renounce could not exercise it. But
it is not so clear as to the powers expressly given to executors :
if it is to be regarded as a bare power given to several iioniiiia-
fim (a view which is perhaps supported by the necessity for
passing 21 Hen. YIII. c. 4, before referred to), how could it, apart
98
A CONCISE TREATISE ON POWERS.
Extent of
power.
from recent legisLation, be exerciseable by the survivors or sur-
%dvor? That it is so exerciseable, however, is shown by Howell s.
Barnes (Cro. Car. 382) and Brassey v. Chalnms (4 D. M. & G.
528) . If, on the other hand, it is annexed to the office (and this
seems to have been the ground of the two last-mentioned cases) ,
how can any persons exercise it who renounce the office ? Cf.
Keates v. Burton, 14 Yes. 434, and the cases of consent to mar-
riage to be given by executors. Such consent is considered to
be personal, and not annexed to the office {Gray don v. Iliclcs,
2 Atk. 19).
The Probate Acts do not seem to alfect the question, except
so far as regards powers annexed by implication to the office.
26. A power may extend to enable a disposition of
the fee, although no words of inheritance are
used.
The powers of executors to sell their testator's real estates are
necessarily co-extensive with the requirements to be fulfilled by
such sales. If, therefore, a testator directs that his land be
sold, and the produce distributed among certain persons, his
executors will be authorized to sell the whole fee ; if the power
of sale arise by implication from a charge of debts on the real
estate, that also will enable them to dispose of the fee, for it
may be requisite in order to carry out the testator's intention of
paying his debts, and the purchaser is not bound to inquire to
what extent the testator is indebted {Spalding v. Shalmer,
1 Vern. 303).
But there are other cases in which the intention is not so
clear. It may, perhaps, be stated as a general rule, that —
Frimd facie
extends to the
fee.
The donee is to be taken to have intended
to create a power to pass the whole of his estate
and interest, in the absence of all expression to
the contrary.
In Alloa-ay v. Alloicay (4 Dr. & "War. 380), Lord St. Leonards
CREATION OF POWERS. 99
says: — " Wliere the power is created in general terms, and there
is nothing on the face of the instrument to control those terms,
the Coiu-t ought to construe the power as enabling the donee to
appoint a fee simple estate, and it ought not to require the ex-
pressions ' manner and form,' or ' shares and proportions,' for
the purpose of spelling out the intention of the donor, but
should adopt the plain ride that, where the general scope of the
power is not inconsistent with such a construction, the donee
may appoint the absolute interest, whether in cases of real or
personal estate." The object and scope of the instrument
creating the power, and the purpose for which it is created,
must also be considered. In Wyhham v. Wykhani (18 Ves. 395,
at p. 415), the Lord Chancellor says : — " This power is to grant,
convey, limit, and appoint to trustees without saying to them
and their heirs or executors ; leaving the nature and quantity of
the estate they were to take open to the construction of the
person who was to execute the power. There was nothing which
could determine what he was to do, except by reference to the
instrument out of which the power arose, the estates contained in
that instrument, and the purposes for which the power was
given"; (and see Tomlinson v. Dighton, 1 P. W. 149). In
Bradley v. CartivrigJtt (L. E. 2 C. P. 511), the power, which was
contained in a will before the Wills Act, authorized the donee
to appoint to all and every the issue, child or children of his
body, in such shares and proportions, manner, and form, as he
should think fit. The Com-t (p. 522) considered that this would
entitle the donee to appoint to the children in fee. In Doe d.
Chadin'ck v. Jackson (1 Moo. & Rob. 553), a deed to lead the uses
of a fine to effect partition between coparceners and their husbands,
limited one share, after life estates to the husband and ^^ife, "to
the use of the child and children for ever, subject nevertheless
to such directions, orders, and appointments" as the husband
should appoint. This was held to be a power to appoint the
fee.
Since the Wills Act words of inheritance are not necessary to rower iu
create by will a power to dispose of the fee ; and even before particular
that Act, a power given by will to appoint an estate to particular w^^j^J^pt^"
100 A CONCISE TREATISE ON POWERS.
objects aiitliomed the limitation of tlie fee, althougli no words
of inheritauce were used. In Sdltonhairs case (2 Lev. 104, suh
nom. Liefo v. Saltincjstone, 1 Mod. 189), a man devised lands to
his wife for life, and " that she might dispose thereof to anyone
of her children she pleases." On a second hearing it was held
by three judges against one, that this enabled a disposition of
the fee. In R. v. Marquis of Stafford (7 East, 521), a testator
gave a power to A. to appoint an estate "to the use and behoof
of the lawful issue of the body of A., in such parts, shares, and
proportions, manner, and form as A. should by deed or will
direct." This was held to give a power to appoint the fee. In
Crozicr v. Crozier (3 Dru. & War. 353, 383), the words, "from
and after the decease of A., I devise the same unto the issue
male and female of A." in such shares and proportions as A.
should by will appoint, were considered by Lord St. Leonards
to authorize an ajDpointment of the fee.
It has been said tliat a power to appoint to such persons
merely as A. shall choose, enables only the appointment of life
estates ; but if it be to such uses, or for sucli estates, this will
Powers extend to an appointment of the fee. This distinction cannot
wTu slnce^tlie ^^^t with regard to wills coming into operation after the Wills
^^^- Act ; for, as a general devise without words of inheritance will
now pass the fee, it may well be held to give the power over
the fee to the person in whom a power of appointing the
property is vested, although the power itself does not contain
words of inheritance, or words equivalent to them (Sug. Pow.
400) ; and it is submitted that the rule above stated, and Lord
St. Leonards' opinion in AUoicay v. AUoicay, are more in ac-
cordance with principle even in cases of wills before the Act and
of deeds. In Kenn-orthij v. Bate (6 Ves. 793), estates were
limited by settlement to the use of B. P. for life, remainder to
the use of P. for life, remainder to the use of such child or
children of the marriage as B. P. should appoint. It was not
doubted that this admitted of an appointment of the whole fee.
In Strutt v. Braitlmaite (5 De Gr. & Sm. 369), hereditaments
were vested in trustees by a marriage settlement on trust for
husband and wife successively for life, and after certain trusts
(which did not take effect) for the children as the husband and
CREATION OF POWERS. If 1
wife should appoint, on trust in default of appointment, *' to
convey all the same premises unto and amongst such children
equally." The Vice-Chancellor hold the children took estates
in fee. The conveyance to the trustees was in fee, and in a
marriage settlement for the benefit of children, a direction to
convey to them must mean to convey to them in fee ; (and see
Sug. Pow. 398).
27. Powers created by reference to other powers, will be Powera
taken to be of the same extent and nature as such other powers, reference,
having regard to any change of donee, object, or circumstance.
If there be any contingency or restriction personal to the donee
of the i"»ower to which reference is made, such contingency or
restriction will not be attached to the created power {Harrington
V. Harrington, L. R. 3 II. L. 295) : and if the original power
is inconsistent with limitations and conditions to be attached to
the new power, the latter will be made to conform to the inten-
tion displayed by such limitations. Thus, in Crossman v. Bevan
(27 B. 502), a testator dii-ected that if his daughter A. should
marry, she and her husband should have a similar control over
the portion he provided for her in that event as his daughter B.
had by her marriage articles ; but if A. should marry and die
without issue, the fund was, after the death of herself and her
husband, to revert to the testator's surviving cliildren, or, in
case of their death, to tlieir nearest relatives, B.'s articles,
after the usual powers of appointment among children, and gift
to them in default of appointment, gave her a general power of
appointment in case there should be no children. This general
power was held to be negatived in A.'s case by the ultimate
limitation ; (and see post, Powers of Charging, and Earic v,
Barher, 11 H. L. C, 280).
The implication of an intention to create or keep in existence
a power by reference may be rebutted by other evidence of
intention.
In Lord S/ircH-sharg v. Keightlcg (19 C, B, N. S. 606, affiinned
L, R. 2 C. P. 130), a private Act of Parliament by which estates
were settled on the issue of the settlor as they should succeed to
the earldom, contained powers for each tenant for life or in tail
102
A CONCISE TREATISE ON POWERS.
Persona to
execute
powers given
by reference.
to lease all or any part of the lands for three lives, or for
twenty-one years, or for a term of years determinable on three
lives, so as there should be reserved and made payable by every
such lease the usual and accustomed yearly rents, boons, and
services, ■^'ith a proviso of re-entry for non-payment. By a
subsequent Act, part of these estates were conveyed to trustees,
freed, &c. of all uses, powers, &c., in trust to sell and convey to
purchasers : but it was provided that until such sale the estates
should be held, possessed, and enjoyed, and the rents, issues,
and profits thereof had, received, and taken by, and be applied
to, and for the benefit of, such person and persons as would
have been entitled thereto if the Act had not been passed. This
proviso was held not to extend so as to keep alive the original
power of leasing : the Com-t thought that it would be defeating
the object of the settlement to allow a tenant for life to lease
for 99 years, determinable on lives, at a nominal rent, and
taking a fine ; for the best and most improved rent was not
required to be reserved.
In Taylor v. Miles (28 B. 411), lands were limited in settle-
ment by an instrument which gave no estate to the trustees, but
gave them powers of sale, leasing, and cutting timber. The
tenant for life devised lands of his own to other trustees in fee
to the same uses and subject to the like powers as the settled
estates stood limited. It was held that the trustees of the
settlement were the persons to execute the powers of sale,
leasing, and cutting timber over the devised estates.
A general reference to the trusts and powers of an existing
will or settlement incorporates the trusts and powers referred to,
but not the point of time when the benefits are to arise. Thus,
in Hare v. Hare (24 W. R. 575), property was settled by a
marriage settlement on the husband and wife successively for
life, with remainder to their children and issue as they should
appoint, with remainder to their children equally. Subsequently
the husband's mother settled a fund on herself for life, and after
her death on such of the trusts, &c. of the marriage settlement for
the benefit of the children as should be then subsisting. Jessel,
M. E., held the children took immediately on the death of their
CREATION OF POWERS. 103
grandmother, and were not to wait until their interests came into
possession under the settlement on the death of their own parents.
" Such or the like " trusts and powers mean corresponding,
not necessarily identical, trusts and powers {lie Si/n'f/i, JJas/i/ord
V. Chaplin, 45 L. T. 246 ; and see Oarde v. Garde, 3 Dr. & AVar-
435 ; Marshall v. Baker, 31 Beav. 608).
And a covenant to surrender copyholds to the same uses as
freeholds (without mentioning powers) makes the copyholds
subject in equity to the same powers as the freeholds {Minfoii v.
Kincood, 3 Ch. App. 614).
In BerchtohU v. Hertford (7 Beav. 172), £10,000 was settled
by deed on A. for life, with power to appoint to her children or
issue, and in default in trust for the children ; A. had power to
appoint a life interest to her husband. Subsequently the settlor
by will gave money " to be laid out for the sole benefit of B., in
the same manner as nearly as may be as the £10,000 I have
secured for A." It was held that B. liad the same powers to
appoint to childi'en, issue, and husband that A. had.
In Morgan v. RuUon (16 Sim. 234), lands were limited by
deed to such uses as A. should appoint, and in default to A. for
life, with remainder to his son for life, with remainder to his
first and other sons in tail male ; and these limitations were
followed by powers of sale and leasing, exerciseable with the
consent of A. and his son during their lives. A., desiring to
relinquish his life estate, appointed to his son for life, with re-
mainder to the uses upon the trusts, and subject to the powers
in the original deed, ulterior to the limitations therein, for the
lives of A. and his son. It was held that this included the
powers of sale and leasing, although in strictness they would
operate in derogation of, and were not ulterior to, the life
estates.
28. A power expressly created in general terms by cjenerai^^^ ^
an executed instrument is not to be cut down, be restricted
in executed
except by express words. instrument.
Therefore if there is, first, a general power of appointment
104 A CONCISE TREATISE ON POWERS.
given, and then a limited power in default of appointment under
tlie general power, the general power is not to be cut down,
although the deed creating tlio power be a marriage settlement,
and its natural object (of jiroviding for the wife and children)
will be defeated {Minfon v. Kincood, 3 Ch. 614 ; and cf. Lord
Cardigan v. Armitage, 2 B. & C. 197 ; Harriwn v. Sgmons, 14
"W. E. 959 ; Jones v. Daries, 8 Ch. D. 205).
In Peover v. JIassel (I J. & H. 341), the settlement in ques-
tion (which contained no special recitals) conveyed real estate of
the wife to her for life (not for her separate use), remainder to
trustees to preserve, remainder (in case of forfeiture) to the
trustees in trust for the wife for her separate use, remainder to
the husband for life, and after tlie decease of the survivor, " if
there should be any children or issue living of the said then
intended coverture, to the use of such person and persons for
such estate and estates, interest and interests, and to and for
such ends, intents, and purposes, and upon such trusts, and
charged and chargeable in such manner, and subject to such
powers of revocation, &c., as the husband shall by deed or will
appoint ; " and in default of appointment, to the use of the
childi^en of the marriage in tail, and in default of such issue,
according to the general appointment (in the same terms as
above) of the wife, and in default of such appointment to the
heirs of the wife. The Yice-Chancellor, after reviewing all the
authorities, decided that the settlement must be upheld ; he
distinguished JBrisfow v. Warde, on the ground of the articles
there being executory, and on the use of the words " in such
manner " there ; and he relied on the large terms of the power
in the settlement before him, saying that if he cut down the
power in that case, he must hold that there was no case in which
such a power could be inserted in a marriage settlement.
In Wood V. Wood (10 Eq. 220), funds and leaseholds were
vested by ante-nuptial settlement in trustees on trust for such
person as M. S., a feme sole, should generally appoint, and in
default of appointment, for M. S. for life for her separate use ;
and after her decease, for any future husband her surviving, for
life ; and after his decease, in trust for all the children of any
CREATION OF POWERS. 105
marriage of M. S., as she by deed or vdW should appoint, and
in default of such appointment, for her children, as therein
mentioned. M. S. married in 1867, and by deed-poll, in 1809,
purported to exercise her general power by appointing to her
husband and herself as joint tenants. The Master of the Rolls
held that there had been a valid exercise of the general power ;
(and see Meade-Kiiuj v. Warren, 32 Beav. Ill; and contra,
Gould V. Gould, 2 Jur. N. S. 484).
So, too, a power in a marriage settlement of charging certain Power of
sums in certain events must take effect when those events
happen, and cannot be limited, controlled, or questioned in any
degree, on the ground that under different states of circum-
stances different results would be arrived at {Knapp v. Knapp,
12 Eq. 238).
But if the instrument be executory, the Court, Executory
,. ,^ , .,, J, , i-i instruments.
applymg its rules with reicrence to such instru-
ments, may interfere to give effect to the intention
of the instrument.
In Bristow v. Wardc (2 Yes. Jim. 33(5), money was limited
by marriage articles to the husband during tlie joint lives of
himself and his wife ; and if he should die first, leaving issue,
to her for life ; and after her decease, in such manner as the hus-
band should appoint ; and in default of appointment, to the issue
equally at 21, u-ith an allowance for maintenance and education.
The greater part of the fund was laid out in the purchase of
land, which was settled under the direction of the Com-t in
manner purporting to be in execution of the articles : this settle-
ment gave the husband a special, not a general, power of
appointment. The husband appointed imder the power given
by the articles, so as to make it necessary to decide whether that
power was general or special. Lord Ixosslyn said, " It is clear
upon the articles he had no more power imder them than what
he took to himself under the settlement executed with regard to
106 A CONCISE TKEATISE ON POWERS.
the bulk of the money. The articles were made to secure a pro-
vision for the intended wife and the issue of the marriage ; the
power of appointment is not indefinite, but is confined to the
issue " ; (and see Mildmcnfs Case, 1 Co. Eep. 175 ; Coohe v.
Briscoe, 1 Dr. & Walsh 596 ; Sicift v. Sicift, 8 Sim. 168, and
Sug. Pow. 439).
In TasK-er v. Small (6 Sim. 625 ; 3 M. & C. 63), marriage
articles recited an agreement by A. the husband to settle lands
to certain uses, subject to raising £15,000 for A.'s benefit by
mortcjage or othcncisc ; and A. covenanted that he would settle
the lands accordingly, subject to raising the said sum hij mort-
gage, annuity, or otheridsc, and to any deed for securing the repay-
ment thereof and interest; this was held to authorize a sale.
The Vice- Chancellor said it would be too much to say that the
power was to be cut down, because there Avas a foolish reference
to the deeds by which the raising of the £15,000 was to be
effected.
It may be observed that the ordinary covenant to surrender
copyholds in a settlement to the uses declared of the freeholds is
not executory in the same sense as marriage articles and other
agreements resting in fieri [Minton v. Kinoood, 3 Ch. 614).
Powers Powers created by will depend on the intention of the testator,
wiu.^ ^ to be collected from the will ; but the principle, that general
powers expressly given are not to be cut down, unless the inten-
tion is perfectly clear, applies a fortiori, for there is no inference
in favoui' of children in wills.
In Be J offer fs Trusts (14 Eq. 136), a testator gave his re-
siduary estate to A. for life, and after her death among her
children, grandchildren, or other issue, as she should appoint,
and in default of such appointment as she should generally
appoint, and in default of such appointment, over. A., after
reciting that she had no children, purported to exercise the
general power. She afterwards had children, but died without
revoking the appointment. V.-C. Malins considered that the
general power could not be, and was not intended to be, exer-
cised except in the event of there being no issue of A : and the
decision may probably be supported on the latter ground, though
CREATION OF POWERS. 107
not on the construction of the power itself ; (see Richardson v.
Harrison, IG Q. B. D. 80).
In Mackinlcy v. Sinon (8 Sim. 561), a testator gave his daughter
a life interest in funds, with remainder to such persons as she
should by deed or will appoint, and in default of appointment,
to her children, and in default of children, over. This general
power was held valid, and not to be restricted by the subsequent
gift to children in default of its exercise.
It has been held, too, that the fact that a person has a limited Limited
powers will
power of appointment ■svill not control the generality of words not control
of limitation under which he takes an absolute estate in default ^g^lJg^ '
of the exercise of such power. In Barry more v. Ellis (8 Sim. 1),
an annuity was assigned to trustees on trust to pay the same to
such persons as A., a mamed woman, should, notwithstanding
coverture, appoint, but so as not to deprive herself of the benefit
thereof by sale or other anticipation ; and for want of such
appointment, on trust to pay the same to A. for her separate
use. It was held that A. had both a restricted power of appoint-
ment and the general uncontrolled dominion over the property ;
and Medley v Ilorfon (14 Sim. 222), is to the same effect. But
in Broicn v. Bamford (11 Sim. 127; 1 Ph. 620), stock was be-
queathed to trustees in trust, during the life of a married woman,
to pay the dividends when and as they became due, but not by
way of anticipation, to her appointees ; and in default of appoint-
ment, into /ler proper hands, for her separate use, and her receipts
were to be sufficient discharges. In this case the Lord Chan-
cellor reversed the Yice-Chancellor's decision, and held that the
restraint on anticipation extended to the whole gift. But he
stated, apparently with approval, the principle of Barrymore v.
EUis to be that where a limited power of appointment is created,
and in dofaidt of the execution of such power, the estate is given
generally to the same person, it is competent to the donee to
dispose of the estate without regard to the power, the execution
of which he is at liberty to waive or abandon ; (see, however,
3 Davidson, 3rd ed., 84, n- et seq. ; Harnett v. MaedourjnU, 8 B.
187; Moore v. Moore, 1 Coll. 54).
108
A CONCISE TREATISE ON TOWERS.
PoTvcrs
additional or
substitutional.
If the power
is burden -
The intention in eacli case should prevail : in Bamjmore v.
Ellis, and Jdcdley v. Ilorto/i, this would seem to have been dis-
regarded : for the restraint on anticipation is nugatory, unless it
apply to the whole gift.
29. If a power of sale, jointm'e, or the like already exists,
and a second similar power is conferred on the same donee, it is
in each case a question of intention whether the second power is
intended to be additional or substitutional.
If both powers are given to the same person for the same
object, and are a double burden upon the property subjected to
them, the presumption will be in favour of substitution.
In WujscH V. Smith (I S. & S. 321; 5 Euss. 299), a settlement
after limiting two estates to A. for life, with remainder to his
sons in tail, with remainder to M. for life, with remainders over,
required each person when in possession to assume the name and
arms of the settlor, gave the tenants for life powers of leasing
and charging the estates with a jointure of £400 per annum and
a sum of £2,000 for younger children, and reserved to the settlor
a power of revocation and new appointment as to one estate.
This power was exercised by revoking, as to one estate, the
remainder to M. for life and the limitations over ; and by ap-
pointing that estate to S. for life, with remainders over ; and by
giving to A. and S., when entitled as tenants for life in possession,
" under the limitations aforesaid," powers of charging the estate
with a jointure of £400 per annum, and with £3,000 for younger
children, subject to a dii'ection that there should never be more
than the yearly sum of £400 per annum payable out of any
part of the premises as a jointure at one time, and by directing
the assumption of the appointor's name and arms as in the
former deed.
It is to be observed that A. never could be in possession
" under the limitations aforesaid," i.e., of the second appointment,
for he was in by the first appointment ; and even if it were not
BO, the insertion of the power was, as regards A., a mere repeti-
tion of that in the former settlement, and the whole scope of the
deed showed the intention that it should be substitutional, and
CREATION OF POWERS.
109
the two clauses which were repeated, as well as the charging
clauses, were the name and arms' clause and the leasing powers,
neither of wliich could ho cumulative. On tlie whole scope of
the instrument it was clear that the intention was not to give an
additional power.
But the iirosumption will not arise, if the powers do not If power is
constitute a hurdini ; and m favour oi the general intention ot a trative.
deed, the evidence afforded by a recital may be disregarded.
In Bot/d V. Fctrie (7 Ch. 385), a mortgage containing the
usual power of sale was transferred by a deed which recited the
mortgage, and that " the power of sale had not been and was
not intended to be exercised ; " the assignment was of the
moneys and " all powers and remedies for recovering the same
respectively," and all benefit of the said several indentures of
mortgage, and of every covenant and secm-ity therein respec-
tively contained. The mortgaged estates were also conveyed,
and the deed contained a distinct and independent power of
sale. The Lords Justices held that this second power was ad-
ditional.
And, a fortiori, if the power is created by way of reference to Inference
• 11 1 • J. T T i.' £ against re-
another power, the inference wall be against reduphcation ot ferential re-
charges {Hindle V. Taylor, 5 D. M. & G. 577)—" It is not a ^upUcation.
reasonable way of reading a trust, created by reference to other
trusts, to consider everything as there repeated, and so to make
it a duplication as it were of trusts in tlie nature of charges "
[Cooper V. Macdonakl, 16 Eq. 258).
In Eustace v. liohiitso)! (7 L. E. Ir. 83), on the marriage of
M. a sum of £10,000 was settled upon trust to advance the hus-
band £4,000 and subject thereto upon tlie usual trusts for the
spouses and their children. The wife's father by his will directed
that a legacy of £4,000 should be settled on the same trusts as
the £10,000 comprised in the settlement. The Irish Court of
Appeal, affirming V.-C. Chatterton, held that the effect was not
to increase the sum to be advanced to the husband, but to make
the aggregate trust fund £14,000, of which £4,000 was to be
advanced to the husband.
110 A CONCISE TREATISE ON POWERS.
30. The object of the power may be of any nature,
not infringing any rule of Law or Equity.
Object of It may be to revoke, either wholly or in part, the Hmitations
power. made by the settlement ; whether the power extends to the whole
or only to a part -^ill depend on the intention appearing on the
particular settlement {Frckc v. Lord Barrington, 3 Bro. C. 0.
274) ; or to raise concurrent interests for different pui'poses.
The ordinary powers in a settlement to jointure a wife, and to
create a term for securing a portion for younger children are
instances of this.
Must not be But it must not be illegal. If, therefore, the power transgress
^^^ ■ the laws against perpetuity, it will be void.
In Duke of Marlborough v. Lord GodolpJdn (1 Eden, 404), a
testator devised his real estates to several persons for life, with
remainders to their first and other sons in tail male successively,
and he empowered and directed his trustees, on the birth of
every son of each tenant for life, to revoke the uses therein-
before hmited to their respective sons in tail male, and to limit
the premises to such sons for theu" lives, with immediate re-
mainders to the respective sons of such sons in tail male. This
power was held void as tending to a perpetuity.
In Ferrand v. Wilson (4 Ha. 344) there was a devise to the
executors for 21 years, and subject thereto to two successive
tenants for life, with the usual limitations to preserve contingent
remainders and successive remainders in tail to the children of
the second tenant for life, with remainders over. The trusts of
the term were to fell timber and apply the proceeds and the
rents of the real estates until all the testator's debts and pecuniary
legacies were paid. The will contained a power to the executors
as well during as after the term, until a tenant in tail or in fee
attained 21, to fell timber and invest the proceeds (subject to
the trusts of the term) in the purchase of other estates to be
settled to the same uses. V.-C. Wigram decided that whether
the trust was imperative or permissive, and whether the timber
CREATION OF POWERS.
HI
was to be regarded as part of the annual rents and profits of the
estate or not, the power was void, inasmuch as its object was to
receive and invest the annual rents and profits (if tliey were to
be regarded as such) until a tenant in tail should attain 21 ; an
event which might not occur for ages, perhaps never ; or (if the
timber was to be regarded as part of the inheritance) yet the
distinction between it and the rest of the inheritance was to be
borne in mind, for timber is always alienable during the infancy
of a tenant in tail, although the corpus of the estate is not.
It is, however, difficult to reconcile this decision with the
remarks of L. J. Knight-Bruce in B)-i(j(js v. Earl of Oxford
(I D. M. & G. 363) : in that case estates were vested in trustees
on trust to raise money to discharge incumbrances, and subject
thereto, to two persons successively for life, with remainder to
the sons of the second tenant for life in tail male, with re-
mainders over in fee. The power was for the trustees to cut
timber so long as any mortgage debt remained, and to apply
the proceeds in discharge of incumbrances. L. J. Knight-Bruce
said : — " The circumstance of the power being liable to destruc-
tion by the tenant in tail is of itself sufficient to preclude all
objection, at least to a power of this description, on the ground
of perpetuity." It is true that there was also the fact that the
power amounted to a contract that the enjoyment of the estate
should be limited to a certain extent until the payment off of
certain charges, and that the person in possession had only to
pay off the charges, and there was an end of the power. But
the Lord Justice's words are express as to the sufficiency of the
existence of an estate tail, to prevent the flaw of perpetuity. In
this respect the case is identical with Ferrand v. Wilson. More-
over (notwithstanding any doubts that Lord Eldon's remarks
in Ware v. PolhUI (11 Yes. 2o7) may have suggested), it is well
settled that an unlimited collateral power of sale in a settlement Unlimited
by which estates tail are created, is good ; for any of the tenants ^°iJ_*^^ "^
in tail can, by a disentailing assurance, destroy the power so
created {Biddle v. Perkins, 4 Sim. 135 ; Waring v. Coventry,
1 M. & K. 249, 252, ».; Hale v. Peic, 25 Beav. 335 ; Lewis on
Perpetuity, 541).
The same reasoning applies to all other powers of a like
112 A CONCISE TKEATISE OX TOWEKS.
nature, including that in Fcrniiul v. IVilson ; it would appear,
therefore, that the conclusion ought to be the same in all cases.
It may here be added that a trust for accumulation to pay-
debts is good {Southampton v. Jlarqids of Hertford, 2 V. & B.
54, 6-5 ; 2Iars]tan v. IloIIoicay, 2 Sw. 432 ; Batonan v. Hotchhin,
10 B. 426.) Such trusts were excepted from the Thellusson
Act (s. 2) ; Barrington v. Liddell (2 D. M. & Q. 502). But in
order to support the trust, the Court must be satisfied that the
testator's bond fide intention was to make proper provision for
payment of his debts ( Varlo v. Faden, 27 B. 255 ; 1 D. F. &
J. 211 ; Matheics v. Kehle, 3 Ch. 691). And if the debts have
been paid off by a sale of part of the estates, the Court will not
create a new scheme for the benefit of the remaindermen by
continuing the accumulation to replace the estate sold {Tenrirf
V. Lan-sou, 18 Eq. 490 ; Be Green, Baldock v. Green, 40 Ch. D.
610.) And this would apparently enable a tenant for life to
sell under the Settled Land Act, and apply the proceeds of sale
in discharging mortgages, and so entitle himself to immediate
possession {Norton v. Johnstone, 30 Ch. D. 649 ; and see Settled
Land Act, s. 58, sub-s. 1 (vi) ; and Be Jones, 20 Ch. D. 736; Be
Clitheroe, 31 Ch. D. 135 ; 50 & 51 Yict. c. 30 ; Be Egniont, 45
Ch. D. 395).
The object of And these powers are moreover valid, whether the remainder
L^thf tiue'''* ^0 which they are collateral is in fee or in tail. The true limit
limit. jg pointed out by the intent of the settlement : when the pur-
poses of the settlement are spent, the power is no longer capable
of being exercised ; and this is so, of whatever nature the power
may be, whether of sale, exchange, partition, enfranchisement,
leasing, or otherwise.
As soon as the fee vests in possession, whether it be by estates
tail being ban'ed or otherwise, the powers are determined.
In Lantsherij v. Collier (2 K. & J. 709), V.-C. Wood says:—
" Wliether the remainder in fee of the estate to which the
power is collateral is limited so as to depend upon estates tail
(in which case the power is upheld, as in Waring v. Coventry,
upon the ground that it can be defeated by any tenant in tail) ,
or whether that remainder in fee or reversion in fee is limited in
some other manner, and so as not to depend by way of remainder
CREATION OF POWERS, 113
on an estate tail [Boi/cc v. ITaiiiu'iuj, 2 C. & J. 334), in wliicli
case, whenever that estate in fee vests in possession, tlie wliolo
object and purpose of the settlement is at an end, and the power
ceases, in either case, tlie power, altliough not in terms restrained
to lives in being and twenty-one years afterwards, is a valid
power, and is not affected by the rule against perpetuities "
{Cole V. Sewell, 4 Dru. & War. 1, 32 ; JFa//is v. Freestone, 10
Sim. 225 ; Nelson v. Callow, 10 Sim. 353 ; Tiirvin v. Neiccome,
3 K. & J. 16 ; Sug. Pow. 848). And it has been said that the
existence of objections on the ground of perpetuity to a power
of sale, will not prevent the valid exercise of the power during
the continuance of limitations which are witliin the prescribed
limits {Wood v. White, 4 M. & Cr. 460).
It is tlie custom of conveyancers expressly to restrict tlie
exercise of powers of sale wdthin the limits of the rule against
perpetuities, although powers of leasing are not in general
expressly so confined (3 Davidson, 482, n.).
But if the power is annexed to a long term of years, which Power
.-,, , armexed to a
overrides ever}i;liing and cannot be barred, the power will be term of
bad. Where estates were assured to the use of trustees for ^'^^^^^^
500 years, and subject thereto to the use of A. for life, with
remainder to his first and other sons in tail, with remainder to
B. for life, Avith remainder to his fii'st and other sons in tail,
with divers remainders over, a power to the trustees to enter and
manage the estates dimng the minority of any person who
should from time to time be entitled under the limitations of
the settlement to the immediate freehold as tenant for life or
in tail, was held void for remoteness {Floyer v. Banhes, 8 Eq.
115).
And a power to charge, which is onlv to arise after a general Power to
• " 1 T -J. J.* £ l^ arise on
failure of issue, who do not inherit under the limitations oi tlie general
, , , • , 1 -IIP i. tailuro of issue
instrument creating the power, is bad lor remoteness. ^ ^ ^^^^
In BristowY. Boothby (2 S. & S. 465), a marriage settlement,
after successive life estates to husband and wife, limited the
estates to the sons in tail male, with remainder to the daughters
in tail general, ^ith remainder to the survivor of husband and
wife in fee ; and gave power to the wife, if the husband sur-
F. I
11-i A CONCISE TREATISE ON POWERS.
vived her, and all the children of the marriage died without
issue, to charge the estate. There was no limitation to the
daughters of sons ; a son might have died under 21, leaving
a daughter, in which case the power could not have been
baiTed, nor would it be exerciseable until a general failure of
issue ; it was therefore bad. The authority of this case has
been doubted {Eiio v. JEiio, 6 Ha. at p. 179). It is to be
observed, however, that the instrument on which the question
arose was a deed ; but qucere whether the issue, in default of
whom the power was to arise, should not by reference have been
construed to mean such issue as was before specified. As to this,
cf. Bcd-er v. Ti(cker (3 H. L. 0. 106) ; Parker v. Tooted (11 H.
L. 0. 143) ; Barics v. Merceron (4 Ch. D. 182).
In a wiU Before the Wills Act (sect. 29), the term " die without issue,"
before the i tt • , • t n • p m p • n
Wills Act. or the like, pointed to an indefinite failure oi issue. Conse-
quently, in wills coming into operation before the Act, a power
to arise on the indefinite failure of issue would be bad for re-
moteness, unless it were subsequent to and barrable with an
estate tail.
In Case v. Drosier (5 M. & C. 246) , a testator created a term
of 500 years, and subject thereto devised estate A. to Thomas
for life, with remainder to his sons in tail male, with remainder
to his daughters in tail general, with remainder to Philip, with
similar limitations in remainder ; and he devised another estate in
the same way, only putting Philip before Thomas. The trusts of
the 500 years' term were that, in case either Thomas or Philip
should die without issue, whereby the survivor would become
entitled to all his estates comprised in the said term, the trustees
should have power to raise £2,000 for each of his granddaughters.
This trust or power being annexed to a term antecedent to the
estate tail, and being therefore not barrable, was held bad.
This case was followed in Sykes v. Sykes (13 Eq. 56).
By sect. 29 of the WiUs Act, the term " die without issue,"
or the like, is restricted lirima facie to a failure of issue at the
death.
Where some But a power is not bad for remoteness because some of the
are not within objccts thereof are not within the limits allowed by law ; for
the due limits.
CREATION OF PO^VERS. 115
those nicay bo selected to whom a valid appointment in tliis
respect may bo made {Attenhorou(jh v. Atteitboroucjh, 1 K. & J.
296; Hockley v. Maichcy, 1 Ves. jun. 150 ; Shirhv. Dakynn, 10 Ch.
35 ; Griffith v. Pointall, 13 Sim. 303). It would bo othenvise,
in cases of appointments made before Lord Selbome's Act (37 &
38 Vict. c. 37), if the power did not authorize an exclusive
appointment ; in such a case the appointment must necessarily
include objects without the limits, and the wliole power would
consequently be bad. And it has been said that, unless the
words of the power are express and clear, the Court will prefer
the construction that will uphold the power. In lie Vfale (4
Ch. D. 61), the power was to appoint "to and amongst my
other childi-en or their issue." Jessel, M. E., said, " On the
actual words of the will you have no right to limit the power ;
but you have a right to limit it to a class to whom a valid
appointment can be made imder the law against perpetuity."
Limitations in default of appointment under a power which Limitations in
is void for remoteness are not invalid, imless they themselves exercise of
contravene the rule against perpetuities {Re Ahhott, 1893, 1 Ch. void power.
54).
i2
116
X CONCISE TREATISE ON POWERS.
CHAPTER ly.
OF THE PERSONS BY WHOM POWERS MAY BE EXECUTED.
women.
Acknowledg-
ment by her,
and her hns-
PAGE
1 . Who may execute powers 1 1 G
2. Married tvomen ib.
3. During second coverture 118
4. Unless restrained in terms .... ib.
5. Forum for deciding whether a
power has been exercised or
not 119
6. Jus disponendi over separate
estate 120
PAGE
7. Corpus of real estate may be
included in separate use .... 121
8. Separate use arises as required.. 122
9. Infants 123
10. Exercise of jwwer coupled with
interest 124
11. Zi?nitation of extent of infant's
power's 125
12. Foicer of presenting to advowson ib.
1. Every person who is capable of disposing of an estate
actually vested in himself, may exercise a power over land (Sug.
Pow. 153) ; in like manner, every such person may exercise
powers affecting personalty. The execution of the power in the
latter case operates as a direction to the trustees in whom the
personalty is vested, to hold it for the appointee's benefit ; the
execution of a common law power or a power under the Statute
of Uses operates so as to vest the land subject to it, without
more, in the appointee. It has been held by V.-C. Hall that,
before the Act abolishing forfeiture for treason and felony, an
undischarged felon, at large under a ticket of leave, who had
before conviction executed a settlement with a power of revoca-
tion, could execute the latter power so as to create a valid
mortgage [Mainjyrice v. Pearson, 25 W. B. 768).
2. In addition to the persons above mentioned, a feme covert
can, apart from any statutory provisions, execute a j)ower,
whether it be simply collateral, or relating to the land {Lady
TraveVs case, cited 3 Atk. 711 ; Peacock v. Monk, 2 Ves. sen.
191) ; and her husband's concurrence is not necessary {D. d.
EXECUTION BY MARRIED WOMEN.
117
Blomiiehl v. Euro, 5 C. B. 71 -i). This being the state of the band's con-
. . cunrence,
law before 3 & 4 Wm. IV. c. 74, it is clear that her execution unnecessary,
need not be acknowledged by her under that statute : it is
expressly provided (sect. 78) that the powers of disposition given
by that Act shall not interfere with any powers she had before
the Act.
In Wrhilit V. Lord Cadogan (2 Eden, 239), the Lord Chan-
cellor said (p. 252) : " It has tlu-oughout the case been admitted
that a woman may now, antecedent to her marriage, retain a power
over a legal estate of which she is seised, so as to have during
covertui-e a power to dispose of it (which is done by compljdng
with the requisites) in the same manner as she might have done
if she had not put herself under coverture ;" (and see Field v.
Moore, 7 D. M. & G. at p. 703 ; Co. Litt. 112 a, n. 6).
A married woman may also exercise a power over personalty, Over
whether it be in possession or reversion ; and if it be the latter,
her execution need not be acknowledged under Molins' Act, 20
& 21 Vict. c. 57.
Before 3 & 4 Will. IV. c. 74, a married woman could not Release of
,„,.,, L ^ n powers over
release or extinguish a power aitcctmg land, except by tine or land.
recovery (Sug. Bow. 92). But by that Act (sect. 77), it is
enacted that, after the 31st December, 1833, a married woman
may release or extinguish 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,
by deed acknowledged in manner provided by the Act, with her
husband's concurrence. And under the Conveyancing Acts it is
submitted that she can now do so without acknowledging the
deed (see ante, p. 18).
By 20 «& 21 Vict. c. 57, it is enacted that after the 31st Over
•^ . personalty.
December, 1857, it shaU be lawful for every married woman to
dispose by deed of every fiitm-e or reversionary interest, whether
vested or contingent, of such married woman, or her husband
in her right, in any personal estate to which she shall be
entitled under any instrument made after the said 31st Decem-
ber, 1857 (except her marriage settlement), and also to release
or extinguish any power which may be vested in or limited or
118
A CONCISE TREATISE ON POWERS.
May execute
power during
second
coverture.
Unless
restrained in
terms.
reserved to her in regard to any such personal estate, as fully
and efFectually as she could do if she were a. feme sole, and also
to release and extinguish her equity to a settlement out of any
personal estate to which she or her husband in her right may be
entitled under any such instrument as aforesaid. But every such
deed must be acknowledged in the same manner as deeds under
3 & 4 "Will. IV. c. 74, and the husband must concur ; and the
section does not apply to cases where the married woman is
restrained from anticipation. So far as the release or extinguish-
ment of powers is concerned, it is submitted that this section is
superseded by the provisions of the Conveyancing Acts (see
ante, p. 18).
3. It makes no difference that the power is given to the wife,
when she is manied to A., and that she survives A. and marries
B. ; she may exercise it during her second covertm-e, or during
her widowhood : in like manner she may exercise it, although it
be given to her when she is unmarried, and she afterwards
marries.
In Burnet v. Mann (I Yes. sen. 156), the power was to the
husband and wife and the survivor of them : the wife survived
and married again : an appointment by her, during her second
coverture, was upheld.
4. But the appointor may be expressly restrained by the terms
of the instrument creating the power — e. g., a power to be
executed by A. " while sole," cannot be exercised by A. while
covert.
In Iloneman v. Abbey (1 J. & W. 381), the trustees of a
marriage settlement were directed to raise £1,000 on the death
of the survivor of husband and wife, in case there should be no
issue of the marriage living at her death ; and to pay the same
" as the wife at any time or times during her coverture, and not-
withstanding the same," by any deed should appoint. This power
was held to be exerciseable during that particular coverture
only ; (and see Morris v. Hoices, 4 Ha. 599 ; Burnham v. Bennett^
2 Coll. 260 ; Holliday v. Overton, 14 B. 467 ; Antrim v. Buck-
ingham, 1 Eq. Ca. Abr. 343).
And a power which has no existence, except in the event of
EXECUTION BY MARRIED WOMEN.
119
the death of the ^\iio wliile covert, cannot be exercised by her
at all if she survive lior husband {Nobk v. Willoch, 8 Ch. 778 ;
L. R. 7 II. L. 580 ; poHt, p. 15G).
It has been held that a general power reserved to a single Or Ly
woman in a settlement made by herself was not exerciseable
during coverture by implication from the limitations in default
of appointment {Gould v. Gould, 2 Jui\ N. S. 484) ; but tlie
case is of doubtful authority ; Lord St. Leonards disapproves of
it (Pow. 155) ; and in Wood v. Wood (10 Eq. 220), the Master
of the Rolls declined to follow it. In the last-mentioned case a
feme sole settled lier property some months previously to her
marriage by deed to which her future husband was not a party,
on trust for such persons as she should by deed or ^'ill appoint,
and in default of appointment for herself for life for her
separate use ; and after her death without having exercised such
power of appointment, for any future husband her surviving for
life ; and after his decease, for the children of the marriage as
she should appoint, and in default of appointment for the
children : tlie settlement contained a provision that her after-
acquired property should be subject to the same trusts. It was
Contended that this last provision was inconsistent with the con-
tention that the power was exerciseable during covertm-e ; but
the Master of the Rolls thought that it might be exercised at
any time.
A poTver to be exercised "notwithstanding coverture" may
be exercised at any time {D. v. Bird, 5 B. & Ad. 695).
5. The Court of Cliancery was the proper fonmi for deciding •^"'''^^'V'Jj^^'
whether a married woman's will was an execution of a power, man-icd
i mi • • 1 1 • 1 i.1 woman's ^\ill
and therefore operative, or not. ihe prmcipie upon wiucJi tlie exercised
Court of Probate acted in granting probate to wills of manied * P""*''
women is stated in Paglar v. Tongue (L. R. 1 P. & D. 158).
When the Court was satisfied that a bond fide question as to the
existence of a power, enabling a married woman to make a will,
was intended to or might be raised, it gi-anted a limited probate
of such will, to enable the question as to tlie existence of the
power to be detemiined by the Court of Chancery (see Xohle v.
Fheliis, L. R. 2 P. & D. 276, and TatmiU v. IIaiil<eij, 2 Moo.
R-er or
vi
130 A CONCISE TKEATISE ON POWERS.
P. C. o4'2). And in like manner the Com-t of Chancery had no
jui-isdiction to entertain a suit on the ground of fraud, when the
effect would be to revoke the probate {Alien v. Maqylternon, 1 H.
L. C. 191 ; Mclnish v. MiUon, 3 Ch. D. 27).
Since the Judicature Acts, all the judges of the High Court
have the same jurisdiction; and any judge may, if he chooses,
when an action has been brought in the wrong division, retain
the action and exercise the jurisdiction. But it would not be
considered a sound exercise of such discretion for a judge of the
Chancery Division to grant probate {Piime;/ v. Hunt., 6 Ch. D.
98), or to recall probate {Bradford v. Young, 26 Ch. D. 656).
If a case arises as to the execution of a power, and the Pro-
bate Division has all the jDarties before it, there is no reason why
that division should not determine the question of the validity
of such execution. But if, as is usually the case, all necessary
parties are not before the Court, the usual and proper course is
still to grant limited probate and leave the question of validity
of execution to be determined by the Chancery Division {Re
Tlutrp, 3 P. D. 76 ; and see Harding v. Sutton, 59 L. T. 838 ;
^ P/iillips V. Jenkins, 4:4: L. T. 281). The Judicature Acts have
N made no difference in the practice as to non-contentious business
"^ in the Probate Division {Be Tomlinson, 6 P. D. 209).
^^te^oijus 6. It lYiaj here be added that a feme corert, when not restrained
^^ from alienation, has, apart from the Married Women's Property
Act, in equity the same Jus disj)onendi over her separate estate,
both real and personal, by deed or by will as she would have
if free from the disability of covertm-e ; and not the less so
because a specific power of appointment, in a particular way,
over the property, is given her by the instrument settling the
property to her separate use {Taylor v. Meads, 13 W. E.
394; 34 L. J. (Ch.) 203; 4 D. J. & S. 597). In that case
Lord Westbuiy says : " With respect to separate property, the
feme covert is, by the form of trust, released and freed from the
fetters and disabilities of coverture, and invested with the rights
and powers of a person who is sui juris. To every estate and
interest held by a person who is sui juris, the common law
attaches a right of alienation ; and accordingly the right of a
feme covert to dispose of her separate estate was recognized and
EXECUTION BY MAKRIED WOMEN. 121
admitted from the beginning, until Lord Tlmrlow devised the
clause against anticipation. But it would Lc contrary to the
whole principle of the doctrine of separate use to recpiire consent
or concurrence of the husband in the act or instrument by which
the wife's separate estate is dealt with or disposed of ; that
would be to make her subject to his control and interference.
The whole lies between a married woman and her trustees, and
the true theory of her alienation is, that any instrument, be it
deed or writing, when signed by her, operates as a direction to
the trustees to convey or hold the estate according to the new
trust which is created by such direction. This is sidhcient to
convey the feme covert's equitable interest ; and when the trust
thus created is clothed by the trustees with the legal estate, the
alienation is complete both at law and in ecj^uity ;" (and see
London Chartered Bank, S^-c. v. Lempriere, L. E. 4 P. C. 572 ;
Noble V. Willock, 8 Ch. 778 ; L. E. 7 II. L. 580 ; Re Drunimond
and Davie, (1891) 1 Ch. 524). If the estate were not settled to
the separate use of the wife, equity followed the law, and
gave her no power of disposition over it by will, and only
such a power by act infer vivos as she would have had if her
estate were legal. And as to the Married Women's Property
Act, 1870, see Re Voss (13 Ch. D. 504) ; Johnson v. Johnson
(35 Ch. D. 345).
7. The corpus of real estate may therefore be settled to the Corpus of real
^ _ . . . , -f estate may be
separate use of a married woman, if the intention be clear. In held to sepa-
Taijhr v. Meads (4 D. J. & S. 597), land was conveyed to
trustees in fee (in default of a power of appointment, which was
not executed) upon trust for E. M., her heirs and assigns ; and
the testator declared that E. M.'s estate should be for her
separate use. This gave her a separate estate in the corpus.
But there must, of coiu-se, be a clear intention to annex the "L^nless a con-
trarj- mton-
separate use to the whole fee, and not merely to the life estate, tion" appears.
lu Troutbcch v. Boughey (2 Eq. 534), a testator gave all liis real
and personal estate to trustees, in trust for his wife for life, and
after her decease for his daughter absolutely ; and he dh-ected *
that the principal moneys, rents, issues, profits, interest,
dividends, and proceeds, which his wife and daughter, or either
of them, should be entitled to under his wiU, should be paid
122 A CONCISE TREATISE ON POWERS.
into their own proper hands, as the same became due, and not
by way of anticipation ; and should be for the separate use and
benefit of his -wife and daughter ; and for which moneys, rents,
issues, profits, interest, dividends, or proceeds, the receipt alone
of his wife and daughter, whether covert or sole, should be an
effectual discharge to his trustees. Y.-C. Ivindersley considered
that the terms of the will could only refer to the income and
corpus of the personalty and the income of the realty. " How
can the fee simple of real estate be paid into her own proper
hands?" he asked; he also laid stress on the term "become
due," and on the receipt-clause, as being inapplicable to real
estate in fee; (cf. Re Boicn, 27 Ch. D. 411).
Separate use 8. Although it was formerly doubted, it is now well settled,
requked^ ^^ ^^^^^ property given to a woman for her separate use may be
held as such during coverture, although the property originally,
or at any subsequent period or periods of time, became vested in
her when discovert. "Wliilst the disability of coverture does not
exist, the separate use does not arise ; when it does exist, the
separate use at once arises {Be Gaffce, 1 Mac. & Gr. 541 ; Tidlett
V. Armstrong, 1 B. 1). And a restraint upon anticipation
attaches to the separate estate only, and therefore has no effect
except during coverture {ibid.). But the quality of separate
estate may be destroyed during discoverture, as in Wrifjht v.
Wright (2 J. & H. 647), where stock in the funds was bequeathed
to a woman for her separate use without power of anticipation.
There was no trustee, and the legatee, while discovert and siii
juris, sold out the stock, spent part of the proceeds, and invested
the rest in bank shares, and afterwards married. It was held
that the separate use had been destroyed.
And the quality of separate estate ceases at the wife's death ;
and the husband is then entitled 7>or mnriti, without taking out
administration to her personal property in possession and undis-
posed of by her {Molorvj v. Kennedy, 10 Sim. 254 ; Tugman v.
Jlophins, 4 Man. & Grr. 889) ; and also to her chattels real
settled to her separate use and undisposed of by her {Archer v.
Lavender, 9 1. E. Eq. 220) . And the Married Women's Property
Act, 1882, has made no difference in this respect {He Lambert,
EXECUTION BY INFANTS. 123
39 Cli. D. G2G ; and see Smart v. Tranter, 43 Ch. D. ;j87 ;
Surman v. Wharton, (1891) 1 Q. B. 491; Hope v. Hope, (1892)
2 Ch. 336).
The husband may entitle himself to her imdisposed-of ehoses
in action as her administrator. If the husband and wife have
been judicially separated, and tlie wife dies intestate during
such separation, lier property goes as if her husband were then
dead (20 & 21 Yict. c. 85, s. 25). The powers of disposition by
married women have been greatly enlarged by the Married
Women's Property Act, 1882. The short effect of that Act, so
far as material to be here stated, is, that all property coming to a
woman married after 31st December, 1882, belongs to her for
her separate use ; and all property coming to a woman married
before that day, and her title to which has not accrued in any
way before that day, belongs to her for her separate use (see
Reidy.Reid,Zl Ch. D. 402).
9. An infant cannot, at common law, alien his estate, Infants,
except by force of a custom ; but he may, at common law, do
any act, wherein he is a mere instrument or conduit-pipe, just
as a feme covert may. Upon the same principle it would seem
to follow that an infant may execute a power simply collateral,
deri\ing its effect from the Statute of Uses (Sug. Pow. 177).
In ITearle y. Greenhaul; (3 Atk. 710), Lord Hardwicke says:
" There are several kinds of powers infants may execute ; as
where an infant is a mere instrument or conduit-pipe, and his
interest not concerned. Lord Coke (Co. Litt. p. 52a, s. 66) says :
* Delivering seisin is a mere ministerial act, and requires no
judgment or discretion;' but though the latter words are ex-
pressed generally, the law anciently was not so; and in Co. Litt.
(128 a). Lord Coke himself cites a passage, out of the Mii-ror,
in which it is expressly said an infant cannot be an attorney.
As in the sense of an attorney in a court of justice he cannot be ;
but when we speak of an infant's being an attorney, it is a good
deal different from these kinds of powers. Before the Statute
of Uses, the power was over the use ; therefore all things neces-
sary to be done over legal estates were done by way of conditions ;
and this was the method of exercising an authority over the
legal estates ; and at law an infant might perform a condition
124 A CONCISE TKEATiyE ON POWERS.
"wliere it was for his benefit. As to other kinds of powers by an
infant, I find no sort of authority."
How far 10. According to Mr. Preston (1 Abstracts, 326), " An infant
exercise may Bxecute a power coupled mth an interest, if his infancy be
^4tli^L*t€TCst tlispensed with ; or if, from the nature of the power, it be
evident that it was in the contem2:)lation of the author of the
power that it should be exercised during the minority." This
statement is quoted without disapproval by Lord St. Leonards
(8th ed. p. 911), and by Lord Hatherley {King v. BeUord, 1 H.
& M. 843) ; and was acted upon in Re Cardross^ Settlement
(7 Ch. D. 728). In that case funds belonging to an infant were,
on her marriage, vested in trustees, upon trust to retain existing
investments, or to convert and reinvest with the consent of
husband and wife dming their joint lives. The question was
whether the wife was competent, while still an infant, to give
her consent to a reinvestment. Jessel, M. E., expressly adopted
the above-cited passage from Preston, and held that, as it must
have been contemplated that the joint assent might have to be
exercised during the wife's minority, she was competent to
consent.
In lie B^Anfjibau (15 Ch. D. 228), by a settlement made on
the marriage of an infant, it was agreed that her share in certain
personal estate, in which, under her father's will, she would on
marriage acquire a vested interest, should, as soon as the case
would admit, be assigned to trustees, in trust for investment with
the consent of husband and wife, and to pay the income to the
wife for life, and, after the death of the survivor of husband and
wife, and in default of children (which event happened), in
trust for such persons as the wife should by deed or will appoint,
and, in default of appointment, in trust, if the wife predeceased,
for her next of kin. The wife, while still a minor, by deed
appointed the fund to her husband, subject to her own life
interest, and subsequently died under age. Jessel, M. E., held
that the wife's exercise of the power was valid ; and his decision
was confirmed by James and Brett, L. JJ., dissentiente Cotton,
L.J.
Principle of This case certainly goes further tlian any other case in the
referring
EXECUTION RY INFANTS. 125
books, cand rests on the principle that the exercise of the power eiercise of
p . 1 • 1 • 1 J 1 power to the
is to be referred to the creator of it, which is thus expressed by creator of
Bridgeman, C. J. {Graiujex. Tivhuj, Bridg. 107 ; Sug. Pow. 910) : P"'"''^''-
" In the case of a bare power or authority, where an infant or
feme covert is used but as an instrument or conduit-pipe by
another who has no such disability, tliougli upon the act an
alteration or transference 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." It may be
doubted whether this does not prove too much ; for, if it were
universally true, property settled by A. to such uses or on such
trusts as B. (an infant) should appoint, and in default of
appointment for B. absolutely, could be dealt with by B. by an
exercise of the power.
11. It is submitted that the power of an infant is at any rate Limitation of
subject to this qualification — that it cannot be exercised so as to infant's
divest himself of any estate or interest, although it may be that P°^®"'
he can divest other people. Accordingly, in Re Armit (5 I. R.
Eq. 352), it was held by the Master of the Rolls that an infant
cannot exercise a power over personal property, though autho-
rized to do so by the instrument creating the power, when such
exercise goes to defeat his or her own interest therein ; (and see
Shipicay v. Ball^ 16 Ch. D. 376). And an infant cannot execute Cannot
exercise
a power in gross {llearle v. Greenhaiik, 3 Atk. 695, overruling power in
HoUuHishead v. Hollhujshead, cited 2 P. W. 229; Sug. Pow. ^""^^'^
911) ; or a power appendant over real estate, because " an infant or appendant
cannot do any act affecting his property througli the medium of estate.
a power, any more than ^he can do so du-ectly " {per Jessel,
M. E., ISCh.D. 235).
Lord St. Leonards states (p. 178) that an infant " might Effect of
1 ; 1 i 1 • 1 1 n 1 WiUsAct,
exercise a power over personalty at the age at which by law he sect. 7.
might dispose of personalty to which he was absolutel}- entitled."
But, since the "Wills Act (sect. 7), this is of little j)ractical
importance ; (and see 15 Ch. D. at p. 233).
12. The most curious instance of an infant's power is that of Power of
prosontiD^ to
presenting to an advowson. This he can do, '* although he be a advowson°
sucking child in the lap of his mother " (3 Atk. 702), because
126 A CONCISE TREATISE ON POWERS.
the Ordinary wiU take care tliat tlie person presented is a fit and
proper person. The guardian cannot present, because no profit
can he made out of the presentation ; and the guardian has
nothing to do ^^-ith property for which no account is to be
rendered (Co. Litt. 89 a ; 3 Inst. 156; and see Arthington v.
Covevhj, 2 Eq. Ca. Abr. 518 pL 3).
U4H^^ t/U A
CHAPTER V.
EXECUTION OF POWERS.
127
PAGE
1. Sequisiies for the valid execu-
tion of powers 129
2. Formalities ; esseiitialu 131
3. Statutory alterations : —
[a.) Wills Acts 131
{b.) Lord King sdown''s Act.. 132
{c.) Lord St. Leonards^ Act. 134
4. Form of attestation clause .... 135
5. Period for perfecting the execu-
tion of powers 138
Consent and formalities required
to he given and performed
during appointor'' s life 139
Call they be supplied subse-
quently to the cvecution, but
during the appointor's life ?. . 139
Objection tchere the power ope-
rates by way of raising uses. . 140
6. Death of person ivhose consent
is required, destroys the power 140
7. Consent as a condition precedent
to marriage 141
8. Period during whichpowers may
be executed , 142
9. Future powers 144
Potcers in esse, but exerciseable
on a contingency 144
10. Power not in esse, but to arise
on a contingency, or on ful-
filment of a condition pre-
cedent 147
11. Can the event on xvhich a poiver
is to arise be accelerated by the
parties ? , 152
12. Reversionary interests may be
sold under powers 153
PAOE
13. Execution by contingent persons
By deed affecting legal estates
before and after 8^-9 Vict.
c. 106 154
By will affecting legal estates
before and after Wills Act . . 155
By deed or will affecting equit-
able estates ih.
14. Powers which prove to be non-
existent 156
Will of married woman ib.
15. Limited powers cannot be exer-
cised by contingent persons .. 158
16. Determinable powers 160
17. Limited powers, tchere there is
only one object 161
18. Limited powers, where an object
dies 162
19. Powers may be exercised from
time to time 164
20. Reservation of equity of redemp-
tion does not usually execute a
power 165
21. Unless there are other indicia of
intention 168
22. The instrument by which powers
may be executed 172
Deed. Will or otherwise. Ln-
strument in writing 173
When no instrument is specified 174
23. Distinction between executions
of common law powers, and
powers operating under the
Statute of Uses 175
24. Technical words of execution
unnecessary, if intention be
clear ib.
128
A CONCISE TREATISE ON POWERS.
PAGE
25. TFhat tciU amount to an execu-
tion of a power 176
26. Indicia for determining ichcther
an intention to execute has
been displayed 179
Jieference to subject ih.
Identity of amount of legacies
and of fund 180
Appointment of estate does not
execute poiccr of charging. . , . 181
General tcords, when sufficient. . 183
Blending appointed fund xvith
residue 184
Wrong reference to power or
subject 186
Reference to all powers generally 187
Distinction between property and
power present to testator .... 189
Distinction between general and
special power presetit to testator 190
27. Eequisites for execution 191
28. Clear intention requisite 192
29. Distinction between recital that
the appointor has appointed
{when he has not), and that
the appointee is entitled to the
fund {when he is not) 191
30. Fower not executed contrary to
expressed intention 196
31. What is necessary to make the
execution of one power operate
as an execution of another .... 197
32. Distinction between executions
in favour of purchasers and of
volunteers 199
33. Where power has been executed,
but execution is void 201
34. Fower badly executed will not he
well executed by a subsequent
appointment in the absence of
all intention 205
35. Confirmation of void execution
by way of appointment, when
events have made such appoint-
ment possible 208
36. Implied execution of powers of
revocation ^b.
37. lowers of revocation depend on
intention 211
PAGE
38. What is sufficient execution of
power of revocation 214
39. Wills Act, s. 23 217
40. Wills Act, ss. 24 and 27 221
General poioer excrciseahle by
will prior to its creation .... 222
41. As to application of rule to
limited powers 226
42. Wills Act, s. 27 227
43. Distinction between testamen-
tary powers affeeting real and
affecting personal estate as to
admitting evidence of testator^ s
property 229
44. Intention not to execute general
power must appear on the will 235
45. Doctrine of lapse in relation to
poivers. Wills Act, s. 33 . . 236
46. Extent to which a general power
is to be tahen as executed .... 237
Where appointor is a married
woman, and app)ointment fails 242
Appointment to executors as
such 243
Appointment to trustees who are
not also executors 244
lapse by disclaimer 245
47. Lapse under limited powers .,, . ib.
i8. Abatement 250
49. Appointed property becomes
assets for payment of debts ,. 254
50. Appointments by married
tcomen : how far assets 256
When the limitations amount to
an absolute interest 257
Classification of the cases adopted
by Lord Justice Turner .... 259
Result of authorities indepen-
dently of Married Women^s
Froperty Act 202
51. Effect of Married IVomen's
Froperty Act 264
52. When a man has both a power
and an interest 266
53. Reservation of powers of revo-
cation 269
54. lowers of revocation must be
reserved by the instruments
w'hich are to be revoked 271
EXECUTION OF POWERS.
129
55. Reservation of potcers of new
appointment 27'2
Effect of SHCcessiee executions . , 273
Where the power is primary . . ib.
Where it is not primary 274
PA.OB
oG. Effect of appointment on estates
limited in default 275
57. Probate duty 278
Legacy duty 279
58. Succession duty 282
1. The author of a power may surround its execution with a.s
many solemnities, and direct it to be carried out by such instru-
ments, at such times, with the consent of or by such persons as
he pleases, pro^'ided that he does not transgress the rules of law
or equity. Owing to the excessive caution witli wliich the
creators of powers fenced the execution of them, it has
frequently happened that their own intention, as well as that of
the persons executing such powers, has been frustrated. It is a
rule both of law and equity that —
'' ^ "^ 1 • n *^*^ valid
creating the power to accompany the execution oi execution of
a power.
Every circumstance requii-ed by the instrument Requisites
. , , . n t^ie vaUd
'eating the power to accom
it, must be strictly observed
This rule is modified to a great extent by the aid afforded in
Equity to defective executions in certain cases (see post, " De-
fective Execution ").
And it may in some cases be presumed that the deed of
appointment is duly executed, although the deed containing the
terms of the power is lost {Ilougham v. Sandi/.s, 2 Sim. 9o) .
The necessity for a strict attention to the more formalities Statutory
. „ , . . interference.
accompanymg the execution oi instruments executing powers
has been much modified by the interposition of the legislature :
as regards wills executed subsequently to January 1st, 1838, by
the Wills Act, and as regards deeds dated since August loth,
1859, by 22 & 23 Yict. c. 35.
In order that a power might be validly exercised by deed
dated, or wdll coming into operation, before these statutes
respectively, every cii'cmnstance required to be observed, however
trivial, must have been strictly adhered to.
In IIairki)i-'< v. Kcnq) (3 East, 410), the terms of the power
F. K
for
130 A rOXCISE TKEATISE ON POWERS.
required tliat a revocation should be by a deed or instrument in
■\mting, executed in the presence of and attested by three
credible witnesses, and enrolled in one of her Majesty's Courts
of Eecord at TVestminster, and with the consent of H.'s wife,
father, father-in-laAv, the trustees of a term of 500 years created
by the settlement containing the power, as well as by all the
trustees to support contingent remainders.
L. C. J. Ellenborough said : " Every one of these required
circumstances is in itself perfectly arbitrary, and (except only
as it is 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 is in itself immaterial
whether the instrument in 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 approba-
tion of the several trustees named for that purpose. It might
(if it had so pleased the parties creating the power) have been
done by any writing of the persons so authorized, unsealed,
unattested, imenrolled, and unsanctioned by any consent or
approbation whatever. If these circumstances are unessential
and unimportant, except as they are required by the creators
of tlie power, they can only be satisfied by a strictly literal
and precise performance. They are incapable of admitting of
any substitution ; because these requisitions have no spirit in
them, which can be otherwise satisfied ; incapable of receiving
• any equivalent, because they are in themselves of no value."
" Whatever arbitrary terms the grantor of the power may
impose upon the party executing it, or however absurd and
unreasonable they may seem to be, they must be fulfilled ; as if
it were required that the instrument executing the power should
be witnessed by persons of a particular stature, or written on
paper of a particular colour " (10 CI. & Fin. 425).
2. Although the statutes hereafter set out liave rendered this
strict observance of mere formalities unnecessary in wills and
EXECUTION OF POWERS. 131
(to some extent) in deeds executing powers since their respective
dates, those statutes are not retrospective. And wliile they
•would cure such defects as the lack of three witnesses, they
woidd not affect the want of due consent or the like. It is a
rule that —
No essential requisite to the execution of a Esgentiai
, ,. 1 -i.! requisites
power can be dispensed witn. must bo
obsen'ed.
There is nothing in the statute, nor is there any jurisdiction
in Equity, to dispense with requirements of this nature, so as to
make good an execution which defeats what the person creating
the power has declared, by expression or necessary implication,
to be a material part of his intention.
In Cooper v. Marfi)! (3 Ch. 47), a power was given by a
testator to A., to be exercised by her before her youngest son
attained 25 ; the residuary estate of the testator was to be
distributed at the same period. It was therefore to be presumed
that it was the testator's intention that the children should then
know what were their vested and transmissible rights. Tliis
power was held to be improperly exercised by a will made before,
but not coming into operation mitil after the period at which the
yoimgest son attained 25 ; {BeklY. Shcrcjold, 10 Ves. 370 ; Hor-
lock V. Smith, 17 B. 572, 575).
iSo, a power to trustees to lend the trust fund to the husband,
with the consent in writing of the wife, cannot be properly
exercised without her consent previously given {Cocker v. Quai/k,
1 R. & M. 535) ; her subsequent assent is not sufficient {Bate-
man V. Davis, 3 Madd. 98 ; Wiles v. Grcsham, 2 Drew. 258, 267 ;
Fri/\. Porter, 1 Ch. Ca. 138, 143; GreenhaniY. Gihheson, 10 Biag.
363). On the other hand, in Re T. (15 Ch. D. 78), A^-C. :Malins,
on a petition for advice by trustees, held that the consent of a
married woman who was of unsound mind could be dispensed
with ; (and see Re Neare, 28 W.'R. 976, where the donee of the
power to consent w^as an infant ; and Re Cardross, 7 Ch. I). 728).
3. By 7 Will. lY. & 1 Vict. c. 26, s. 10, it is enacted that Statutes.
no appointment made by will in exercise of any power shall be Wills Act.
valid, unless the same be executed in manner thereinbefore
k2
132 A CONCISE TREATISE ON POWERS.
required (/. c, as a will, in writing signed and acknowledged by
the testator in tlie presence of two witnesses), and every will
executed in manner thereinbefore required shall, so far as
respects the execution and attestation thereof, be a valid execu-
tion of a power of appointment by will, notwithstanding it
shall have been expressly required that a will made in exer-
cise of such power shall be executed with some additional or
other form of execution or solemnity.
Although the words " shall have been required" appear to
point to powers created before the Act, it has been decided that
the section applies to powers created since, as well as to those
created before the Act {Ilnhbard v. Lees, L. li. 1 Ex. 255),
Lord Kings- By 24 & 25 Yict. c. 114, it was enacted as follows : Sect. 1.
sect. 1. ' Every will and other testamentary instrument, made out of the
United Kingdom by a British subject (whatever may be the
domicil of such person at the time of making the same or at
the time of his or her death) shall as regards personal estate be
held to be well executed for the purpose of being admitted in
England and Ireland to probate, and in Scotland to confirma-
tion, if the same be made according to the forms required either
by the law of the place where the same was made, or by the
law of the place where such person was domiciled when the
same was made, or by the laws then in force in that part of her
Majesty's dominions where he had his domicil of origin.
Sect. 2. Every will and other testamentary instrument made
within the United Kingdom by any British subject (whatever
may be the domicil of such person at the time of making the
same, or at the time of his or her death) shall as regards per-
sonal estate be held to be well executed, and shall be admitted
in England and Ireland to probate, and in Scotland to confirma-
tion, if the same be executed according to the forms required by
the laws for the time being in force in that part of the United
Kingdom where the same is made.
Sect. 3. No will or other testamentary instrument shall be
held to be revoked or to have become invalid, nor shall the con-
struction thereof be altered by reason of any subsequent change
of domicil of the person making the same.
EXECUTION OF POWERS.
133
Sect. 4. Nothing in tliis Act contained shall invalidate any
will or other testamentary instrument as regards personal estate
which would have been valid if this Act had not been passed,
except as such Avill or other testamentary instrument may bo
revoked or altered by any subsequent will or testamentary
instrimient made valid by this Act.
The operation of the Act is limited to wills made by persons
dying after the passing of the Act (sect. 5).
In D'lluart v. Ilarhicss (34 B. 324), personal property was
held on trust for such purposes as A. should by will or codicil
appoint. A. married a domiciled Frenchman and died, having
made a holograph but unattested will. This will was valid
according to French law, and was admitted to probate here.
Lord Eomilly held that the probate was conclusive that the
instrument proved was the will of the testatrix, and that a
power to appoint by will meant any will entitled to probate
here.
In Re Kincan, however (25 Ch. D. 373), Kay, J., held that
a holograph codicil, admitted to probate here, was invalid as an
exercise of the power under sect. 10 of the Wills Act. U'lluart
v. Harkiiess does not appear to have been cited (and cf. Do/phin
V. Eobins, 7 H. L. C. 390).
In Re Dahj (25 B. 45G ; 27 L. J. Ch. 751), it was held that
the wife of a domiciled Englishman could not by residing in
France create a French domicil for herself, so as to entitle her
holograph will to be regarded as a will here.
It may be here observed that a will, made in execution and in Will made
accordance with the terms of a power, is entitled to probate, power elititkd
although it is not properly executed according to the laws of the **^ probate,
country of domicil of the person making it {Tat nail y. Hankey,
2 Moo. P. C. 342 ; lu h. Alexander, 29 L. J. Prob. 93 ; but see
the criticisms on those cases, In h. Ualh/hurton, L. R. 1 P. & D.
90). The law takes a liberal view, and where the instrument
creating the power directs it to be executed by will in a parti-
cular form, a will may be good for the purposes of the appoint-
ment, if executed according to the law of this country, though
not according to the law of the domicil. That is, where the
134
A CONCISE TEEATISE ON POWERS.
Probate
neccssaiT.
Effect of
probate.
Lord St.
Leonards' Act.
13th Aug.
18J9.
instrument creating tlie power du^ects it to be executed by will
in a particular way, it may bo a good will if executed in the
form required, though not according to the law of the domicil
(34 B. 328).
A testamentary appointment made in execution of a power
over personal estate is not available, until it has been duly
proved as a will {Boss v. Eircr, 3 Atk. 160 ; 1 Wms. Executors,
56 ef seq., 8th ed. ; Sug. Pow. 466). In Be VaUance (24 Ch. D.
177), the Coui't refused to act on the New Zealand probate of
the will of a donee of a limited testamentary power, but required
the will to be proved in this country before it would order pay-
ment out of Court of the money appointed ; (see now 55 Yict. c. 5) .
The effect of the grant of probate was to conclude anyone
from objecting in the Court of Chancery that the instrument
proved was not the will of the testator {D^Huart v. Harkness, 34
B. 324 ; Douglas v. Coojier, 3 M. & K. 378 ; and see Bradford
v. Young, 26 Ch. D. 656).
By 22 & 23 Yict. c. 35, s. 12, it was enacted that a deed
thereafter executed in the presence of and attested by two or
more witnesses in the manner in which deeds are ordinarily
executed and attested, shall, so far as respects the execution and
attestation thereof, be a valid execution of a power of appoint-
ment by deed, or by any instrument in writing not testamentary,
notwithstanding it shall have been expressly required that a
deed or instrument in writing made in exercise of such a power
should be executed or attested with some additional or other
form of execution or attestation or solemnity : Provided always,
that this provision shall not operate to defeat any direction in
the instrument creating the power, that the consent of any
particular person shall be necessary to a valid execution, or that
any act shall be performed, in order to give validity to any
appointment, having no relation to the mode of executing and
attesting the instrument, and nothing therein contained shall
prevent the donee of a power from executing it conformably to
the power by writing, or otherwise than by an instrument
executed and attested as an ordinaiy deed, and to any such
execution of a power this provision shall not extend.
ATTESTATION CLAUSK. 135
It M-ill be observed that there is an important difference
between tliis enactment and the Wills Act : by the Wills Act,
no will is a good execution of a power to appoint by will, unless
it is executed in eonfonnity with the requirements of the
statute ; but a deed may bo a valid execution of a power, if it be
executed and attested by two or more witnesses as an ordinary
deed, or according to the terms of the power.
4. It has frequently been a question for the Courts to decide Form of
. IIP 11 attestation
whether a power, which is to be executed, lor example, by clause,
signing, sealing, and delivery, such execution to be attested by
witnesses, is validly executed, if the attestation clause does not
express that all those formalities of signing, sealing, and
delivery have been observed, although the instrument itself by
which the power purports to be executed, expresses such observ-
ance. The cases appear to estabhsh the following rule, subject
to the statute mentioned in the last section : —
(a.) If a power requires two or more formalities
to be attested, and the attestation clause expressly
certifies that one of sucli formalities has been per-
formed, then the power is not well executed.
(b.) But if the attestation, although a limited
and special one, is of such a nature that it must
be necessarily inferred that the other requisites
were complied with :
(c.) Or if the attestation isjgeneral, then the
execution is valid, unless the contrary is shown.
The principle is thus stated in Vincent v. B. of Sodor and
Man (4 De Gr. & Sm. 294) : " If the attestation expresses in
any form of words an act to have been done in the presence of
witnesses, by which the complete execution of the instrument,
as required by the power, appears to have been effected, it
would be sufficient. But when the framer of the power requires
two or more such acts to be done, then, if the attestation only
expresses the doing of one of them, it would_]^not be sufficient,
for, in this latter case, it is clear that the framer of the power
136 A CONCISE TREATISE ON POWERS.
really intends something more than tlie act expressed in the
attestation, becanse he expressly added the other act (p. 307).
If there is a general attestation clause, the exact narra-
tion may be dispensed with, to the extent at least of holding
that a iurv might presume that the witnesses saw those acts
done, which the donee of the power, in the instrument execu-
ting the power, expressed an intention to do, although there
should be no evidence that the witnesses were cognizant of the
contents of the instrument containing the power.
In Ncuion v. Bickefls (9 H. L. C. 262 ; IJ. & H. 70), this
is more strongly put by Lord Chelmsford, who says that the
law must be taken to be, that if de facto the power was pro-
perly executed, and the witnesses saw that it was so executed,
and they had simply signed their names as witnesses, no
memorandum of attestation was necessary.
{a.) In IVrigJif v. JVal-eford (17 Yes. 454 ; 4 Taunt. 213), the
power was to be executed by deed " signed, sealed, and de-
livered ; " the attestation clause certified that the deed had been
" sealed and delivered," but said nothing of signing : the Court
held that, as the attestation clause did not express that the
T\itnesses testified an execution in full conformity with the
terms of the power, or, in other words, as the attestation clause
was not co-extensive with the power, the execution was void.
This decision caused the passing of 54 Geo. III. c. 168, by
which it was enacted that the omission of the word " signed "
in the attestation clause of all deeds mside pre rlouslt/ to the Act,
should not render such deeds of no effect ; but the Act had no
prospective operation.
(&.) In Vincent v. B. of Sodor and Man (4 De G-. & Sm. 294;
8 C. B. 905 ; 5 Ex. 683), a power of appointment by will, to
be signed and piuhlished in the presence of and attested by wit-
nesses, was held well executed by a will, the attestation clause
of which testified that it was signed and scaled in the presence
of the witnesses : the ground of the decision was, that a will
cannot be made without being published ; (and see Ross v. Ewer,
3 Atk. 161).
In Smith v. Adldns (14 Eq. 402), a power to appoint by any
ATTESTATION CLAUSE. 1-37
deed or instrument in writing, to be " signed, sealed, and
delivered," in the presence of two or more credible witnesses,
was held to be well exorcised by an appointment hy will, not
expressed to bo " delivered," but stated in the attestation clause
to have been " signed, sealed, published, acknowledged, and de-
clared to bo her last will," in the presence of the attesting
witnesses. The Master of the Rolls said that the publication of
a will is equivalent to the delivery of it : no attestation clause
was expressed to be required in this case ; (and see 2 Coll.
Ill, n. ; Machinlc;/ v. Sison, 8 Sim. OGl ; Bartltolomric v. Harrix,
15 Sim. 78 ; Re JFrct/, 17 Sim. 201).
(c.) In liiirdeit v. Spihhun/ (10 CI. & Fin. ;340), a power
of appointment by will, " to be signed, sealed, and published,"
in the presence of and attested by witnesses, was held well
executed by a will (before the Wills Act), the attestation
clause of which was merely, " Witness, A. B., C. D., and
E. F."
The term " attest " means that a witness shall be present to Meaning of
attest,
testify that the appointor has done the act required by the
power. In Frenhfield v. Beed (9 M. & W. 404), A.'s consent,
" duly attested," was required to the execution of a power : a
deed expressed to be made with A.'s consent, "testified by his
being a party thereto," was held invalid : the power required
A.'s written consent, signed in the presence of a witness (and
cf. In h. Eynon, L. R. 3 P. & D. 92).
In Wan-en v. PodletJncaite (2 Coll. 108), a married woman
had power to appoint by will, " to be by her signed and pub-
lished in the presence of " two or more credible witnesses. She
made a holograph will purporting to execute the power, signed
her name and affixed her seal. Then followed the signatures of
three of her servants, and underneath these signatures the
following memorandum in the handwriting of the testatrix :
" Signed and sealed at Ilambrook House, this 23rd day of July,
1834, in the presence of the above witnesses, all servants in the
house." It was held that, as no attestation clause was required
by the power, the omission of any statement as to publication
in the memorandum (considered as an attestation clause) was
138 A CONCISE TREATISE ON POWERS.
immaterial. And Kniglit-Bruce, Y.-C, further laid down that,
where an attestation clause is not required, the mere fact of
there being an attestation clause specifying certain formalities
does not exclude e^'idence that other things were done besides
those expressed to be attested.
Period for 5. As to the period for perfecting the execution of a power,
perfecting the .,■■,/ 1 Wl. ^
execution of it may DO laid down as a general rule that —
powers.
The consent of any person required to consent,
and also all formalities annexed to the execution,
must be respectively given and perfected during
the lifetime of the donee of the power [HawJdns
V. Kemj), 3 East, 410; Sug. Pow. 240, 255).
The consent, which is a material and important element in
the execution, is usually required to be precedent to, or at least
simultaneous with, the execution : if so, this requirement must
be complied mth [Grcenhmn v. Gihhcson, 10 Bing. 363). But
if the terms of the power admit, there seems no real reason, in
considering the execution of a power of appointment to be
executed by A., subject to B.'s consent, for limiting the time
during which B. may consent, to the duration of A.'s life. A.'s
appointment may be said to be conditional on B.'s consent : the
two are independent powers ; and, in the absence of all expres-
sion of intention, the consent of B. may as well supplement
and render valid the appointment of A., as B.'s consent receive
meaning and validity from the appointment of A. (see Offen v.
Earman, 1 D. F. & J. 253 ; 29 L. J. Ch. 307). In that case a
power of releasing certain estates from charges and substituting
others in their stead, was to be executed by A. with B.'s con-
sent, " such consent to be signified by some deed to be duly
executed by him, and not otherwise." A. executed the power,
but B.'s formal consent by deed was not given till nine months
after. It was shown, however, that he had consented by parol
previous to A.'s execution : the power was held well executed.
The question of the time for perfecting the accompanying
formahties is of less importance since 22 & 23 Vict. c. 35. But
PERIOD FOR PERFECTING EXECUTION. 1-39
one of the points decided in iraic/,i/i.s v. Kc/nj) (3 East, 410),
was, that wliere the creator of the power required the deed
executing the power to bo enrolled, the enrolment must of
necessity be made during the lifetime of the donee of the power,
on the ground that the enrolment could not be made without
the donee's authority, and that authority of course terminated
with his life.
In WrigJit v. Wdkrford (4 Taunt. 213), the Court of Common Attestation of
Pleas decided, by three against one, that the attestation of the ,vhen to be
requisite witnesses could not be supplied after the death of the ™^'^®-
donee of the power, although it was admitted that they might
have added it during his lifetime. Lord Mansfield differed
from the other judges, and considered that the death of the
party, whose act the witnesses were to attest, did not fm-nish
any objection to their signing the attestation after his death,
because, when he had once signed, or executed, in the presence
of witnesses, the instrument to be attested, he had done all that
was to bo done by him, and as far as respected him it was com-
pleted, and he could not rescind or annul it, although it would
not be effectual unless the person to whom it was delivered
should procure the witnesses to attest it ; (but see Doe v. Peachy
2 M. & S. 576).
The decisions of the majority of the judges in Wrirjld v.
Walxoford, and in Doe v. Peach, are based on the ground that the
intention was that the execution, and all its accompanying
formalities, should bo one complete act, perfected at one time ;
although it seems to have been admitted that the attestation
might have been supplied during the lifetime of the donee of
the power, perliaps on the ground tliat he might then be taken
to renew his execution. But it is now provided (22 & 23 Yict.
c, 35, s. 12) that powers, so far as regards their execution, shall
be well executed, if executed in the presence of and attested by
two or more witnesses, in the manner in which deeds are
ordinaril}' executed. The intention of the Act is to assimilate
the execution of deeds executing powers to that of other deeds.
It would appear, therefore, that since that Act (13th August,
1859), so long as the witnesses live and remember the transac-
140
A CONCISE TREATISE ON POWERS.
Objection that
the attesta-
tion must be
simultaneous
with the
tlon, thoj may properly sign their attestation of it; for the
object of requiring- witnesses to attest the execution of a deed
is, that they may see that it is faii'ly and properly executed : as
this is the case with regard to ordinary deeds, it must be the
same with regard to deeds executing powers.
Lord Eldon put his objection to the validity of the execution
of the power in Wright v. Walxcfonl on another ground, namely,
tliat the execution of the power was a limitation of an use, and
execution, in ^\^r^^ s,uc\\ an use could not arise except under the circumstances
oi'der to raise
uses. and at the time specified ; (and see Nacnian v. fFanicr, 1 Sim.
N. S. 457). The Common Law Judges did not notice this
objection. If the intention of the donor of the power was,
that the execution and its accompanying formalities should be
one complete simultaneous act (as the judges decided), this
objection seems to be a fatal one to all executions operating
under the Statute of L'ses. But the argument above suggested,
that the legislature has now assimilated the execution of deeds
executing powers Avith that of other deeds, would aj)ply to this
also : for an use can be raised by deed imattested by writing
(see Warren v. Podlethicaite, 2 Coll. 114; and Stephen's Com-
ment, i. 503; Shep. Touchstone, 508).
6. The next rule is the converse of the last preceding.
"WTiere con-
sent is requi-
site.
If a power is given, to be executed with the
consent of one or more persons, and that one, or
any one of the others, dies, the power is gone.
In Si/nip>ion v. Ilorithij (Ch. Pre. 452 ; 2 Vern. 723, suh noin.
Hiitton V. Sitnpsoii), A. empowered his wife to dispose of his
personal estate witli the consent of his trustees. The wife pur-
ported to dispose of it by will without such consent. It was held
inoperative.
In Aticaters v. Birt (Cro. Eliz. 85G), there was a feoffment to
uses, with a proviso that, on payment of 12c/., and procuring the
assent of the feoffees, the uses should cease. It was held that
this gave them an authority, and that, if one of them died, the
authority determined.
In Danne v. Annas (Dyer, 219 a.), A. devised that, if his
CONSENT TO BE GIVEN. 1-11
daughter sliould die without issue, then, after the deatli of his
wife, his laud should be sold by his executors with the assent of
B. ; and ho appointed his wife and another executors. After
the death of the wife and of B. a sale by the surviving executor
was held bad.
In Franklin's case (Moore, pi. 172, cited 2 Eden, ''J33), a
testator devised that I. I. and I. K. should sell his lands by the
advice of the parson of D. : before the sale the parson died.
Held, the trustees could not sell ; (and see Mamell v. Mansell,
8ug. Pow. 252).
So, a power of revocation to be exercised by A. and B. cannot
be exercised by the survivor of them [Montejiore v. Browne, 7 II.
L. C. 241).
But in Belt v. BoUhy (15 Eq. 178), where two persons were Protector of
1 o p < Tir-n T-I7- settlement.
appointed protectors of a settlement under o cc 4 Will. IV.
0. 74, s. 32, and one of them died, no provision being made
for filling up a vacancy in the office, it was held that the
sm'viving protector, with the tenant in tail, could effectually bar
the entail.
In Green v. Green (2 J. & L. 529), a testator gave his son, if
he should marry with the consent of A., power to jointure his
wife and to charge a gross sum for chikben. A. died and the
son afterwards married. Lord St. Leonards held that the power
of jointuring and charging was exerciseable by the son, saying
that, as he thought the intention of the parties was that the
obligation to obtain the consent was imposed only during the
lifetime of the party competent to give such consent, he should
struo-ffle with the technical terms so as to effectuate the intent of
DID
the parties.
7. The case of a legacy vesting at 21 or marriage with
the consent of named persons, as in Da/vson v. O/ircr-Jfasse//
(2 Ch. D. 753) ; Re Broun (18 Ch. D. 61), is analogous. A
marriage in the lifetime of the donor of the power, with his
consent or subsequent approbation, is equivalent to a marriage
after his death with the consent of his trustees {Wheeler v.
Warner, 1 S. & St. 304, 310). The consent must, however, be
absolute and unconditional {Tonge v. Fnrse, 5 W. Iv. 394).
142 A CO^X•ISE TREATISE OX ^O^yERS.
In Clarke v. Berheky (2 Yern. 720), a father devised lands to
trustees upon trust to permit liis daughter to receive the rents
and profits until her death or marriage, and in case she married
■with the consent of two of the trustees and her mother, then to
convey the lands to her and her heirs ; but if she married with-
out such consent, then otherwise. The daughter subsequently
married during her father's lifetime with his consent ; and it
was held that the condition as to consent was dispensed with
by the testator's own consent ; " which was more to be regarded
than any consent of trustees, to whom he had delegated a power
to consent in case of a marriage after his decease"; (and see
CronuncUn v, Crommc/iii, 3 Yes. 227 ; Panicll v. Lyon, 1 Y. &
B. 479).
In Wheeler v. Warner (1 S. & St. o04), a father bequeathed
stock to trustees in trust to pay the income to his daughter so
long as she remained single ; and if she should marry with the
consent of the trustees to pay not more than one-third part of
the stock to the husband ; but if she should marry without such
consent, then the whole capital was to be held upon certain
trusts for herself and children. The daughter subsequently
married during her father's lifetime without his consent, although
he was afterwards reconciled to the marriage. Upon the father's
death it was held that the husband was entitled to be paid one-
third of the stock.
In Ticeedale v. Tiveedale (7 Ch. D. 633), a father by his will
gave his trustees power, if any of his daughters should marry
with the approbation of the trustees, to grant to the husband of
such daughter for his life the income of the whole or any part
of such daughter's fortune. A daughter having subsequently
married dui'ing her father's life with his consent, it was held
that his consent was equivalent to that of the trustees, and that
after the death of the daughter her husband was entitled for his
life to the income of a third part of his wife's share.
Period during 8. Ordinary powers may be exercised at any time during the
may bJ'"''"'' lifetime of the donee : but there is a distinction between the
executed. execution of future powers, namely, between powers presently
created, but exerciseable on a contingency— powers which do
CONSENT TO BE GIVEN. 143
not arise until the happening of a future event — and powers to
be exercised by a contingent person. The question whether any
particular power is a future one or not, must depend upon the
terms thereof. In LeiyJi v. Lord BakarrcH (6 C. B. 847), a
testator devised his real estates to trustees in fee, on trust (so far
as is material here) to pay the rents to C. during her life, but
impeachable for waste for cutting timber in the lifetime of C,
or for digging coal or cannel coal to be opened otherAvise tlian
under the power therein contained, with remainder to D. for
life, subject to the like restrictions, with other remainders over.
The will contained a power " for the person or persons (except
C.) who, by virtue of the limitations thereinbefore expressed,
should for the time being be seised of or entitled to the actual
freehold of the hereditaments," to grant leases in possession^
It was held that this was a power exerciseable by the trustees,
who had the legal estate, during C.'s lifetime.
In Malmeshury v. Mahnesbunj (31 13. 407), family estates
were settled on A. for life, with remainder to B. for life, witli
remainder to B.'s fii'st and other sons in tail male, with divers
remainders over, and an ultimate limitation to the use of B. in
fee. The settlement contained a power for the trustees at the
request of A., " and after his decease then at the request and by
the direction of the person who for tlie time being shall under or
by virtue of the limitations hereinbefore contained he scisrd of
tltc freehold and itJierifaiice of the said manors," to sell. It was
held that after the death of A. no sale could be made by the
trustees, inasmuch as there was no one who fulfilled the condi-
tion of being .seised of the freehold and inheritance.
In Robertson v. Walker (23 W. E. 224), a testator gave all
his real estate to trustees for a term of 1,000 years upon trust to
secure an annuity to his wife for life, and subject thereto upon
trust for A. for life without impeachment of waste, witli re-
mainder to his first and other sons in tail male, witli remainders
over : and he empowered his trustees " diu-ing the life of any
person hereby made tenant for life who sliall under or by virtue
of this my will be for the time being entitled to the possession
or the receipt of the rents and profits of my said estates, witli
114
A CONCISE TEEATISE ON POWERS.
liis or her consent in -RTiting " to sell. By a codicil the testator
directed his trustees to stand possessed of the term, and of the
moneys to arise fi'om the exercise of the power of sale, upon
trust to pay all the rents and income to his wife diuing her life
or widowhood in lieu of the annuity. It was held by the Lord
Chancellor and Lords Justices that the power was not destroyed
by the codicil, and might be immediately exercised with the
consent of the tenant for life and the widow.
Execution of 9. A power presently given to a designated person, to
power on a bc exorcisod iipon a contine-ency, can be well
contingency. ^ o ^ /
executed before the contingency liajjj^ens.
In Wandesforde v. Carn'ck (5 Ir. E. Eq. 486), it was held,
that where a power is given to a designated person to be
executed upon a contingency, it may be executed before the
happening of the contingency, and the execution will be valid
on the subsequent happening of the event. A fortiori, where
the happening of the contingency cannot be ascertained until
the donee's death ; and an incorrect recital in the instrument
executing the power, that the contingency had already haj)pened,
was held not enough to invalidate the execution. " It has been
decided many times that a power, to oj^erate upon a contingent
event, like that of death, may be exercised in the lifetime of the
party upon whose death alone that contingency can take effect :
otherwise you might never exercise it at all " {j)cr Lord St.
Leonards, 4 H. L. C. 283).
In Logan Y. Bell (1 C. B. 872), real estate of the wife was
limited to her in fee until her marriage, and from and after the
solemnization thereof, to the use of such persons as she should
appoint. Her appointment by codicil before the Wills Act, be-
tween the date of the settlement and the marriage, was upheld.
In C. of Sutherland v. Nortlimore (1 Dick. 56), a power was
given to a married woman, to be exercised in case of the death
of her husband in her lifetime, and if there should be a failure
of issue of the marriage at her death. She exercised the power
EXECUTION OF POWERS. 146
in her [husband's lifetime and survived liim. Tliis was held a
valid execution.
In Anon. (2 Loon. 220), a testator directed that, if he should
have no issue by his wife, then after the death of his wife his
lands should bo sold, and the proceeds distributed " to three of
his blond "; and he ai)pointod his wife and two others executors.
All of thorn proved tlio will, and after the deatli of the other
two tho wife sold. It was held tliat tlie sale, being intended to
be made bv the executors, was good by the survivor, and that it
could bo made in the lifetime of the wife, because, as she was
tho only surviving executor, it could not otherwise be made
at all.
In Ilolt V. Biirlcy (2 Vern. 651), a power to revoke a settle-
ment was given to the wife, if she survived her husband, they
not having issue between them ; the husband died, leaving a
son, who died in the wife's lifetime. The power was held not
to be confined to the moment of the husband's death, but to be
exerciseable at any time during the widow's lifetime ; (and see
Dalbij V. Pullcn, 2 Biug. 144 ; Eden v. Wiho)i,4:YL. L. C. 283;
and Sug. Pow. 267).
The two following cases, however, appear to be at variance with Cases contra.
this rule. In Re Wahh\s Trusts (1 L. E. Ir. 320), pohcies of
assurance on the life of A. were settled on trust for the children
of A. as A. should by will appoint, and in default of appoint-
ment the trustees were to pay the money assured by the policies
to the children of A. in such shares as the trustees should order
or du'oct. Chatterton, Y.-C, held, on the construction of the
deed, that the trustees' power only arose when they had received
the money, and that tlieir power was one of distribution, not of
appointment. The Yice-Chancellor treated the reservation of
the testamentary power by A. as showing that the trustees
could never liave been intended to interfere wdth tlie funds by
any act of theu's during A.'s life. The reasoning is not alto-
gether satisfactory, for the trustees could not divide the money
until they had got it, which was necessarily not until after A.'s
death ; and his power was paramount to theirs : nor is it easy to
see what is the distinction between a power of distribution and
F. L
146 A CONCISE TREATISE ON POWERS.
a power of appointment. But the case turned really upon the
construction of the particular instrument.
In BJiyht V. ITarfno// (10 Ch. D. 294), Fry, J., is reported
to have said : " I think that when a power of appointment
among a class of people is given, the appointor must know the
class : must be ahle to ascertain the class amongst whom he or
she is so to divide the property. It is a discretionary power, to
be exercised with reference to the respective circumstances and
merits of the persons who are to take ; and that cannot be
exercised when the persons are not known. To use an illustra-
tion which I put during the argument ; if a power were given
to A. to appoint among his children who should be living at the
return of B. from liome, and that were exercised by A. before
B. returned from Rome, it appears to me to be a bad exercise of
the power."
In the case before the Court, there was a power to appoint the
proceeds of sales of property directed to be sold at a period
beyond that allowed by the rule against perpetuities, amongst a
class to be then ascertained : and this was held bad for per-
petuity. The statement above quoted was, therefore, not
necessary for the decision of the case. It is a question of
intention on the construction of the document creating the
power ; and it is submitted that the general statement at the
commencement of the foregoing quotation is too wide. If it
were correct, no one could appoint under the ordinary power of
appointment amongst issue, until all possible issue had been
ascertained: and it has never before been suggested that an
appointment to a child under the usual power to appoint among
children or issue is bad, because other children or issue may be
afterwards born.
The latest case on the subject is contrary to the statement
of the law in B/irj/d v. Ilariiwll In lie Couhnan, Mtinhy v.
Ross (oO Ch. 1). 18Gj, a power of appointment among childi'en
or issue was exercised by appointing to children for life, with
remainder to then- testamentary appointees, with remainder to
their next of kin, exclusive of the husband of any female child.
Some of the children were alive at the date of the creation of
EXECUTION OF POWERS. H^
the power; and as to these shares Pearson, J., lu-M that, if on
the death of the tenant for life the next of kin liappened to he
issue, they would be objects of the power, and tlie appointment
would be good. BUfjht v. Harfnoll was not fited.
10. A power wliicli is not to arise until a future or Power to arise
, . , 1 . . . on a contin-
contin<rcnt event happens, or until a condition is gency.
fulfilled, cannot be exercised until the event
happens or the condition is fultilled; for until
then it has in fact no existence.
In Moyi'icli v. Coutts (Sug. Tow. 2G6), there was a devise to
A. for life, and after her decease a power to trustees to sell
and pay the money among the children of B. The Court held
that a sale could not be made until after the death of A.
In Bhtcldoiv V. Laws (2 Ha. 40), a testator directed an estate
to be sold after the death of A. Under the decree of the Court
in a suit to administer the trusts of the will (there being no
debts unpaid, and the persons interested in the proceeds being
not sui Juris), this estate was directed to be sold. It was held,
however, that the Court could not compel the purchaser to
accept the title.
In Johnstone v. Bahcr (8 B. 233), a testator devised his advow-
son to trustees on trust to sell on the death of A. A. was the
incumbent, so that on his death no sale could be made imtil the
vacancy was filled up. It was held that the Court had no juris-
diction to authorize a sale in the lifetime of A. on the ground
that it would be beneficial to the parties ; (and see Mash/ v. Hide,
17 Q. B. 91 ; Shau-x. Borrer, 1 Keen, 559).
In Want v. SfaNibrass (21 W. E. 685 ; L. E. 8 Ex. 175),
there was a devise to trustees for A. for Hfe, " and from and
immediately after his decease" to sell. The Court of Ex-
chequer treated it as clear that the power did not arise until
A.'s death. If the tenant for life and the persons entitled to
the proceeds of the sale are all sid Juris, they can of course
make a good title ; but the power will not in such ease come
into operation.
l2
lis A CONCISE TREATISE ON POWERS.
But in Uirdale v. UredoJc (3 Atk. 117), tliere was a devise of
lands to the testator's wife for life, and after her decease the
testator willed the same should be sold. Lord Hardwicke said
that the words "after her decease " were not put in to postpone
the sale ; and he held that a sale might well be made in the life-
time of the -^ddow. It is to be observed, however, that the bill
in this case was filed by the widow, who was a specialty creditor
of the testator; (see, too, Co. Litt. 113 a, n. 2; and A (ford y.
A/ford, cited 2 P. W. 230).
So, also, in Ashford v. Cafe (7 Sim. 641), a testator gave a
fund to trustees for A. for life, and after her death to transfer it
to B. in case she should be ihen unmarried ; but if she be then
married, on trust to transfer the same to such persons as she
should, notwithstanding coverture, and whether sole or married,
appoint ; and in default, for her executors and administrators.
B., being then married, died in A.'s lifetime, having made a
will in execution of the power. This was held good : sed qu.
(see Sug. Pow. 265).
Condition Where the performance of an act is made a condition prece-
T)rGCod,GIlt to
power. dent to the exercise of a power, and such performance subse-
quently becomes by act of the law impossible, the power cannot
be executed. If the performance of a condition precedent be
prevented, no matter how, and the condition does not take
efPect, that which was conditioned upon it cannot possibly take
effect either.
In Lord Shreic>^huri/ v. Hope Scott (6 C. B. N. S. 1, 220),
lands were settled by Act of Parliament so as to be inalienable;
but power was given to each tenant in tail to alien on condition
of his making the declaration and taking the oaths prescribed
by 30 Car. 2, c. 2, and II & 12 Will. III. c. 4, within six
months after attaining 18, and continuing a Protestant. These
last-mentioned Acts were rejiealed. It was held that the
only effect of the repeal was that the power could not take
effect.
In Earle v. Barker (11 H. L. C. 280), a testator gave his
residuary estate to his executors on trust for A. for life, and
after the death of A., provided lie sludl leave any child or children
EXECUTION OF POWERS.
149
Jiim surriviiKj, on trust for such persons generally as A. should
appoint by ^\'ill ; hut if A. should die without leaving any child
or children him surviving, and sliould not previous to liis death
make such appointment as aforesaid, then on trust for 13., C,
and D. A. died without ever having had a child, leaving a will
by which he purported to execute the above power. It was lidd
(affirming the Master of the HoIIs, 33 13. 353), tliat A. never
having had a child, the condition on whicli the power was
founded had not occurred, and the power never came into exist-
ence : the will of A. was therefore inoperative as an appoint-
ment, and the property went as in default. Lord "Westbury
thought that the testator meant to provide for a double
contingency by the gift over : if there should be no cliild, in
which case there would be no power, or if there should be a
child, but the power should not have been exercised, then the
gift over was to take effect.
In Ee Verschoyle's Trusfs (3 L. R. Ir. 43), under a marriage
settlement there was a power for the wife, if she survived her
husband and there should not be more tlian three children of
the marriage, ''f/ioi fiiid in such case,'" by deed or will or codicil
to appoint one moiety of the fund to any person or persons.
The wife and three children out of five survived the husband,
and the wife then appointed to a trustee for herself. This was
held to be a bad exercise of the power, which could only arise in
the event of there being no more than three children born of the
marriage.
In Wilkinson v. Thornhill (Gl L. T. 3G2), there was a power
" if there should not be more than two children," to raise £o,000
— " if there should be more than two," to raise £3,000. There
was no cliild, and it was held that the £5,000 was raiseable.
There appears to be no difference between real and personal Xo distinction
,. ,,-_,, r, 1 ,^ i i. between real
estate m this respect. In Eark v. Btu-kcr the property seems to and personal
have been a mixed residue ; there is no question of property ^^''^'^' ^""^^''
vesting, as to which different principles are applicable, according
as it is real or personal estate (2 Jarm. on Wills, 1). The
question is, has the event happened or the condition been
fulfilled, upon which, and upon which only, the power was to
150 A CONCISE TREATISE ON POWERS.
arise ? If it has not, there is no power to be exercised, whether
the property be real or personal.
The important distinction woidd appear to be between cases
where the power is not to arise except on the happening of an
event or the performance of a condition ; and cases where the
power is called into existence, but its effectual execution is made
dependent on some condition subsequent. In the former case,
as the power never comes into existence at all, it can never be
exercised, and the nature of the condition precedent to its
creation can make no difference. The case is analogous to that
of a condition precedent to the vesting of real estate, as to which
Baron Parke (4 H.L. C. 120) says : " Supposing (the condition or
contingency) to be illegal, if it be precedent, and the event does
not happen, or if it be impossible, and therefore cannot haj^pen,
the party never obtains the estate." But in the latter case,
when the power is called into existence, but its execution is
made contingent on some event or condition, it will be a question
of intention in each case whether such event or condition was
intended to be so indispensable to the execution of the power as
to render any execution impossible, if the event or condition
becomes itself impossible (cf. 2 J. & L. 539).
Proviso "With reference to the proviso on the power of sale (which
morte-affe^'s "^'^^ formerly expressed in mortgage deeds, and which is now
power of sale, implied by sect. 20 of the Conveyancing Act, 1881, to the effect
that the power shall not be exercised until notice has been served
on the mortgagor, and which proviso was itself restricted by a
clause which protected purchasers from the necessity of ascer-
taining Avhether the power had in fact arisen), it has been held
that where the purchaser has notice that the condition precedent to
the power lias not been fulfilled — /. e., that the necessary notice
has not been given — the exercise of the power is bad, and the
protecting clause has no effect {Parkinson v. Uanhury, 1 Dr. &
Sm. 143 ; Sclmjn v. Garfit, 38 Ch. D. 273 ; and see Forder v.
Hogcjart, 15 Q. B. 155). And it is conceived that this doctrine
ajjplies equally to the power of sale implied by the Convey-
ancing Act, 1881 (sects. 19, 20, 21).
It seems doubtful whether a direction to sell real estate lor the
EXECUTION OF POWERS.
151
payment of debts, in case the perxonalti/ Hliould he imiijficicHt, is a
conditional power, or an absolute charge of debts.
In a case where a testator said " in case it should fully and Power of sale
sufficiently appear " that the executrix should not find sufficient deficiency of
personalty to pay his debts, then he desired that she should sell P^yXbS ^°
Wliiteacre, it was held that the power of sale did not arise until
the deficiency of the personal estate appeared in the manner
specified by the will {Bike v. Rlch% Cro. Car. 335). But Lord
Eomilly has held that, where a testator says "if my personal
estate is insufficient to pay my debts, there shall be a cliarge on
my real estate," it is no more than saying, *' I charge my real
estate with payment of my debts," for the personal estate is
primarily liable, and the charge can never arise until the execu-
tors find the primary fund deficient {Greetham v. Colton, 34 B.
615).
The distinction, depending on the words " fully and suffi-
ciently," seems a narrow one. The Courts, before real estate
was made assets for the payment of all debts, probably felt it
incumbent on them to construe more strictly charges in form
conditional, which imposed a burden to which the land would
not, without such charge, be subject ; but since 3 & 4 Will. IV.
c, 104, the conditional form is of less importance, as the real
estate will be applicable for the payment of debts in a due course
of administration in any case. It is rather a question of con-
venience, and probably the Courts would follow the later
decision, unless in a case exactly similar to that in Dike v. Eieks,
or unless the personalty has not proved deficient, and the pur-
chaser has notice of this {Carli/on v. Triiscoff, 20 Eq. 348).
And Lord Eomilly has held a power in form conditional Although
exerciseable, although part of the condition was not fulfilled, dition un-
In Davidson v. Hook (22 B. 206), a testator, having two children, ^''^^^•
empowered his widow, if his children shoidd conduct themselves
to her satisfaction up to the age of 25, and marri/ n-if/i her
approbation, hut not othericiae, to give them £1,000 each for the
purpose of setting out in the world. The Master of the Eolls
held that the widow had power, on the children attaining 25, to
give them £1,000 respectively, although they were unmarried.
152
A CONCISE TREATISE ON POWERS.
Can the event
on which the
power is to
arise be
accelerated by
the parties ?
Burdensome
powers.
Administra-
tive powers.
Lord St. Leonards (Pow. 266) disapproves of this decision, and
says the words in italics should not have been disregarded. It
may perhaps have been considered that the paramount intention
was to enable the children " to set out in the world," a proceed-
ing which has no necessary connection with marriage.
11. The question whether the event on which the power is to
arise can or cannot be accelerated by the act of the parties,
depends on the nature of the power. There is a distinction
in this respect between j)owers which are a burden on the estate,
and powers which are simply administrative.
The law is stated in Trucll v. Ti/sHon (21 B. 444) : " It seems
to be, if not settled, at all events the better opinion, and one
which the Coiu't would be disposed to act on, that when a power
to charge an estate is given under circumstances like these —
that is, when there are two successive life estates and an estate
in remainder, and a power is given to the tenant for life in
possession to charge — that power cannot be exercised by the
second tenant for life upon the first surrendering his life estate,
so as to bring the second into possession. The reason is obvious,
that it might be done for the purpose of fraud, and for multi-
plying the charges on the estate against the remainderman. The
testator has given the property in such a way that the estate of
the person in remainder shall not be charged by the second
tenant for life, until he comes into possession of the estate on
the death of the first tenant for life. If it were otherwise, the
result might be this : the first tenant for life might surrender
his estate, and so enable the second to create the charge, and he
might afterwards die before the first tenant for life, and a
charge might thus be created which was never contemplated, and
which could never have taken effect under the strict words of the
settlement ; great frauds might thus be committed. But I am
of opinion that this reasoning does not ajoply to a power of sale;
a charge diminishes the estate of the remainderman, but a sale
or exchange does not; and the reasoning, as applicable to
accelerating a power to charge, fails in regard to a sale or
exchange. In the case of a charge, it is the intention of the
testator that the interest of the remainderman shall not be
ACCELERATION OF POWERS. 1'53
diminished, except in the particular case specified. But in the
other case there is no diminution of his interest, but only a
change in the property. The same presumption, therefore, does
not arise" (Sug. Tow. 269).
The reasoning applicable to the acceleration of powers to
charge would apply to ordinary powers of selection and distri-
bution : the persons entitled in default of appointment occupy
the same relation to the objects of the power as the remainder-
men in cases of powers to jointure occupy to the tenant for life
and his wife.
12. The mere fact of the subject of a power of sale being a Reversiona
reversion, will not prevent the exercise of the power, if it be
given immediately.
In Blachcood v. Borroices (4 Dr. & War. 441, 468)," Lord St.
Leonards says : " It is settled by the authorities that, unless
there is a restriction against an immediate sale, the power may
be exercised at once, so as to increase the interest of the tenant
for life at the expense of the remainderman ; for if, instead of
waiting for the expiration of the particular estate, the reversion-
ary interest be sold, it must of course be sold at a much less
price than the estate in possession would have produced. The
authorities have, however, settled the question, and I think
wisely, that if there be no intention expressed, the power may
be exercised immediately." In that case, the reversion, after
the determination of two life estates, was settled on the mar-
riage of the reversioner ; the settlement contained a power of
sale ; and it was held that such a power might be exercised
before the reversionary interest became an estate in possession ;
(and see CI(irk v. Seymour, 7 Sim. 67).
In Giles V. Homes (15 Sim. 359), a reversion of a moiety of a
farm was settled on a marriage, and the trustees were empowered
to sell it when in possession. The settlement contained a cove-
nant by the husband and wife to convey any other share or
interest in the said farm which they might afterwards acquire to
the trustees, so that it might become vested in thorn upon the
trusts and subject to the powers declared of the settled moiety.
After the first moiety had fallen into possession, a moiety of the
154 A CONCISE TREATISE ON POWERS.
other moiety came to the wife by descent, subject to a life
estate. It was hchl saleable under the power ; the suspension of
tlie power over the first moiety did not extend to the after-
acquired share ; (and see Tr/s/.-rr v. Small, 6 Sim. 625 ; 3 M. &
C. 63).
Execution of 13, A general power, affecting the legal estate in
power over . . i i x
legal estate by land, givcn to a Contingent person, could not,
peKo^r"" under the old law, be exercised until the person
to exercise it was determined by the event.
Br deed before {a.) As to its exBCutiou by deed,
c.loG.^'''*' A contingent interest and a contingent right to exercise a
power stand on the same footing ; consequently, the same prin-
ciple that made contingent interests inalienable (before 8 & 9
Yict. c. 106) was held to extend to prohibit the exercise of a
contingent power over the legal ownership ; in other words, as
an use Hmited to the survivor of two persons could not, under
the old law, be aliened until after the smwivorship, so a power
to declare an use, given to the survivor of two persons, could not
Different rule be exercised except by the actual survivor. But in equity this
in equity. ^^^ never prevailed. A power to the survivor of three persons
to declare a trust for his own benefit is not distinguishable from
a trust for the benefit of the survivor; and, as a contingent
equitable interest was always alienable by deed or by will, it
follows that a person who has a contingent right to appoint an
equitable estate for his own benefit could always exercise the
power, subject to the contingency (see Lord Westbury's judg-
ment in Tliomas v. Joncfi, 1 D. J. & S. 63).
It follows from this that contingent legal interests, being now,
by 8 & 9 Vict. c. 106, made alienable, stand on the same foot-
ing as contingent equitable interests before the Act, and that
powers given to contingent persons of appointing legal estates,
being governed by the same principles, are also exerciseable in
the same way tliat powers given to contingent persons of
appointing equitable estates have always been ; but this has not
been yet expressly decided.
EXECUTION BY CONTINGENT PERSON. 155
{h.) As to its execution by will.
Before the Wills Act, a power affecting the legal estate, given By will before
to a contingent person, was not well exercised by the will of
that person made before the contingency determined — for the
will spoke from its own date, at which time the power was in
the nature of a contingent use — and such uses were only devis-
able when they were descendible, and this they could not be,
unless the person who was to take was certain {Selwyn v. Selwi/n,
2 Burr. 11^31). This was so decided in Boc v. Ton/kiiison (2 M.
& S. 1(55).
This did not apply to equitable interests, and therefore not to Not applicable
powers affecting the equitable estate only. But since the Wills estates.
Act (1 Vict. c. 26), a will speaks from the death of the testator,
with reference to the estate comprised in it ; and consequently a
will, made by the actual survivor of two donees of a general
power during their joint lives, operates as from the date of the
testator's death, and therefore is effectual.
In T/io)}ias v. Jones (1 D. J. & S. 63), a general equitable
power of appointment was given to the survivor of A. and B.
A., who was a married woman (with testamentary capacity
under her settlement), by her will, made in 1838 and in the
lifetime of B., who subsequently died in A.'s lifetime, made a
general devise of her real estate. This was taken as executed Execution of
immediately before her death ; the general devise therefore contingent
operated as a good appointment under the power which she had ^.^11°"^^^^
then. ^^^ Wills Act,
and by deed
It is submitted that the rule to be deduced from Lord West- since 8 & 9
bury's judgment in TJwma,s v. Jones (1 D. J. & S. 63), and from
the general principles of law, although no cases have as yet
expressly decided it, is that
A general power of appointment, wlietlier
affecting the legal or equitable estate, may now
be well exercised by deed or will, by a con-
tingent person, wlm, in the event, proves to
Vict. c. 106.
156 A CONCISE TREATISE ON POWERS.
be the person actually entitled to exercise the
power.
Powers -which i^ j^^t the case of a power, which has no existence in the
non-existent, events that happen, must be distinguished. Thus, the Wills
"^ nvm-Td^ ^'^^ S^""'^ ^ married woman no greater testamentary power than
voman gj^e possessed before. Apart from the Married Women's Pro-
arising on ■'• 1 .11 T • n 1 i
death of pertj Acts, she could only make a will disposing ol her separate
"" ^" ' estate, or disposing of personal property with the assent of her
husband, or executing a power. If, therefore, her power only
arose on the death of her husband, her will, made during his
lifetime, of property which would become her own only if she
survived him, must fail if she survived him. It could not pass
the property as a will, for she had no power to make a will; and
it could not execute the power, because in the event supposed
such power never had any existence ( WiUocl; v. Noble, L. R. 7
H. L. 580 ; TrimmeU v. Fell, 16 B. 537).
In Price v. Parker (16 Sim. 198), stock was transferred to
trustees on trust for such persons as A. and his wife should
appoint, and in default for the wife for life ; and if she should
survive her husband, for her absolutely ; but if she should die
first, on trust for him for life, and, subject thereto, for such
persons as the wife, notwithstanding coverture, should by will
appoint. The wife, in her husband's lifetime, made a will in
exercise of the last-mentioned power, but sm-vived her husband.
Probate of her will was on her death limited to property of
which she had power to dispose. It was held to be inoperative ;
the event of her husband's death before her left no power for
her to execute. It is to be observed that the limitations in these
cases were those frequently inserted in marriage settlements ;
it would seem advisable, in order to prevent the recurrence of
such questions, to give the wife a testamentary power exer-
ciseable in any event ; and this is the course now usually
adopted.
Sccus, if pro- If, however, the property is settled to her separate use, in the
perty ^ettkd^ event of her surviving her husband, her will is effectual. Thus,
use if she \^ Bishop v. WaH (-3 Ch, D. 194), personal property was settled
suryiTC.
EXECUTION BY CONTINGENT PERSON. 157
upon trust for the wife's separate use during her life without
power of anticipation ; and in default of issue (which happened)
upon trust, if she survived her husband, for her separate use ;
but if she predeceased her husband, for such of lier relations as
she should, notwithstanding coverture, by deed or Avill appoint.
The wife made a will during her husband's lifetime, and
thereby, by virtue of tlie said power and of every other power,
she disposed of all her property. She survival licr ]iusl)aii(l
and never republished her will ; and it was held that, as both
capital and income of the settled property belonged to her for
her separate use, she had power to dispose of the whole by will
made during coverture.
The Married Women's Property Act, 1882 (sect. 1, sub- Effect of
M. W. P. Act
sect. 1), enacts that "a married woman shall, in accordance i882.
with the provisions of this Act, be capable of acquu-ing, holding,
and disposing, by will or otherwise, of any real or personal
property as her separate propei^y in the same manner as if she
were a/einc sole, without the intervention of any trustee." The
apparent generality of this clause has been considerably limited
by the construction put upon it by the Coiu-ts. Tims, in He
Price, 28 Ch. D. 709, it was held that the Act did not enable
a married woman to dispose by a will, made during coverture, of
property left to her by her husband's will, and which necessarily
could not come to her until after the coverture had ceased ; (and
see Be Smif/i, Clemenh v. Ward, 35 Ch. D. 589 ; Re Wihon,
26 W. 11. 848). And the 19th section of the Act has had a
construction put upon it which practically excludes from the
Act property which would have been subject to a marriage
settlement, if the Act had not passed (see Re Wliitdhvr, 34
Ch. D. 227 ; Hancock v. Rancock, 38 Ch. D. 78).
In Re Taylor, Whithi/ v. llighton (58 L. T. 843), a woman,
married in 1867, had, under her marriage settlement, a general
power, if she predeceased her husband, of appointment by will
or codicil over personal property which, in the event of her
surviving, was to be held upon trust for her absolutely. In
1883 she made a will in exercise of her power, disposing of " all
the property, of whatever nature, comprised in the said settle-
158 A CONCISE TREATISE ON POWERS.
ment, and over which I have any power of appointment or dis-
position by will." In 1885 her husband died, leaving to his
wife real and personal estate ; and in the same year she made a
codicil as follows : " Codicil to my will. Certain property having
become mine by the ^vill of my late husband, to wit " (specifying
certain real estate), " I do give the whole of the aforesaid houses
and lands to my brother for his sole use and benefit." The
testatrix died six weeks later. Chitty, J., held that the codicil
did not enlarge the scope of the will so as to make it include
any property not originally included ; and that as to the pro-
perty acquired under the husband's will, other than that speci-
fically devised by the codicil, the testatrix died intestate. And,
in order that a codicil made after the husband's death may
operate to republish a will, it must contain some evidence of
intention to republish {lie Smith, Bilke v. Boper, 63 L. T. 448 ;
39 W. E. 93).
But a will which would operate as an effectual disposition of
property settled by deed or will to the separate use of a married
woman is equally effectual to dispose of property which becomes
her separate estate by virtue of the Married Women's Property
Act. The phraseology of the Act appears to have been taken
from Lord Thurlow's judgment in Hulme v. Tenant (1 B.
C. C. 16).
Thus, in P<,e Bourn, James v. James (1892, 2 Ch. 291), a
woman married in 1839, and having a general power under her
settlement, made a will in 1872, exercising her power and
bequeathing her residuary real and personal estate. In 1884
she became entitled, as next of kin of a niece, to a sum of
£2,440, and died in 1885. It was held that her will effectually
disposed of this sum.
Limited 15. Tlie last rule mentioned in sect. 13 must not be taken as
belxecuted '^ applicable to limited powers. Lord Westbury expressly excludes
Ly contingent pQ^ygpg which are given for the benefit of special objects, and which
are in the nature of trusts ; or which are given to trustees to be
used, as sound discretion may decide, at a particular period.
General powers are, for most purposes, equivalent to absolute
ownership ; and the technical objection to the alienation of
EXECUTION BY CONTINGENT PERSON. 150
contingent legal estates being now abolished, there is no reason
for continuing the restriction on the exercise of contingent
general powers. But this does not apply to limited powers,
which are exerciseable for the benefit, not of the donee, but of
the objects of the power (see Sug. Pow. 120). Consequently,
the law, so far as concerns limited powers, remains unaltered,
and the rule is, at any rate as to appointments by deed, that
A limited power, given to a contingent person, By deed.
cannot be exercised until the j^erson to exercise it
is determined.
In Macadam v. Lorian (3 Bro. C. C. 310), a power of appoint-
ing a sum of stock amongst the children of a marriage, which
•was given to the survivor of the husband and wife, was held to
be not well exercised by a joint appointment.
In Care v. Care (8 D. M. & G. 131), there was the usual joint By will,
power, in a marriage settlement of personalty, to appoint among
children, given to the husband and wife ; and in default of such
appointment, as the survivor, after the (tecease of the other, should
appoint ; the husband made a will during his wife's life, exer-
cising the power, and survived her. It was held that, by the
very terms of the power, the appointment was bad, and that the
24th section of the Wills Act did not apply ; but this decision
seems to rest on the peculiar wording of the power. In Re
Tiriss (15 W. 11. 540), Lord Cairns said that a power of revoca-
tion of an appointment to a child under the usual power in a
settlement would need express words to enable it to be executed
by tlie ultimate survivor during the joint lives. Turner, L. J.,
seems to doubt whether such a power could be given at all. In
Be Moir (46 L. T. 723), Bacon, V.-C, held that a limited
power, exerciseable by A. and B. during their joint lives by
deed, and in default of such appointment by the survivor of
them by deed or will, was not well executed by the will, made
during the joint lives, of the actual survivor ; (and cf. Ec Wells,
42 Ch. D. G46; andj^o-s^, sects. 40 and 41).
160 A CONCISE TREATISE ON POWERS.
Period for 16. A powci', determinable on tlie liappening of any
executing: •tip
determinable event, iiiust 06 exercisccl ociore such event
powers. ,
haj^pens.
For this pm-pose a "VN'ill speaks from the death of the testator.
In Potts V. Brit ton (11 Eq. 433), a fund was held on trust,
in the events tliat ha])pened, for B. P. for life, with remainder
for such persons of a certain class as B. P. should by deed or
will appoint, and it was provided, that if B. P. should commit
any of certain specified acts, his life estate should determine,
and the trust fund go as if he were actually dead, and all powers
therein contained should be thenceforth exercised as if he were
then dead. B. P. exercised his power by will, but subsequently
committed an act of forfeiture ; the appointment was held
invalid ; (see Cooper v. M(trtin, 3 Ch. 47 ; Parsons v. Parsons,
9 Mod. 464 ; Pc Ai//icin, 16 Eq. 585). A jDOwer of revocation
to be exercised by A. and B., or the survivor of them, during
their joint lives, determines on the death of either A. or B. {Re
Ttciss, 15 W. E. 540).
In Pe Borroices (2 I. P. Eq. 468), a testator devised lands to
his two brothers successively for life, and authorized them
" when and as soon as they shall respectively become seised of
an estate of freehold in possession," by deed or writing "to be
made upon or previously to their marriage," to charge the
estates with a jointure and gross sum for younger children.
The testator died in 1834 ; the brother, who took the life estate
under his will, had married in 1825 ; he purported to exercise
his power of charging given by the testator's will, in 1844. The
Coiu't considered that the power authorized ante-nuptial settle-
ments only, and held the execution in 1844 to be invalid.
Power of sale But in Pearcc v. Gardner (10 Ha. 287), a power to trustees of
a will to sell, with all convenient speed and within five years
(but without any words forbidding a sale after that period), was
held not to be restrained to five years ; (and see Cufl' v. Hall, 1
Jur. N. S. 972). As between the trustees and the cestais que
trust, the onus of showing that the latter are not- prejudiced
lies on the trustees ; and people who deal with trustees raising
within five
years
APPOINTMENT TO AN ONLY OBJECT. 161
money at a considerable distance of time and without an
apparent reason for doing so, must be considered as imder some
obligation to inquire and look fairly at wliat they are about
{Sfroufjhi/l V. Ansfci/, 1 D. M. «& Gr. 654 ; Decai/iicH v. Robinson,
24 B. 86).
17. A power of appointment among a class, to whom the Power of
. ., appointment
property is limited in default of apponitment, is not necessarily when there ia
extinguished because there is an only object ; it depends on the ^^° ^° ^^ '
nature of the power ; if it be merely to limit the proportions in
which the members of the class are to take, it cannot of course
be exercised if there is an only object {CampJicU v. Sandi/s, 1 S.
& L. 281, 293). And if the sole object of the power is not the
person entitled in default of appointment, the only way in
which he can take is by an execution of the power. If the
power is a power to appoint among children "in such proportions,
with such conditions, restrictions, and limitations, &c.," it may
be well exercised although there is an only object.
In Brni/ v. Brcc (2 CI. & F. 453), a fund was vested in
trustees on trust for all and every the child and children of a
marriage, in such shares and at such age or ages and subject to
such conditions and limitations as the wife should appoint.
There was one child only : the wife appointed to such child for
her separate use for life, and after her decease to her general
appointees, and in default of appointment, to the child's
executors and administrators. This was held good ; and the
child (a married woman) having appointed the fund by will, her
appointee was held entitled as against her husband.
But a limitation in default of appointment to the only object Defeasible
appointment,
of a power cannot be defeated by an appointment to such object
which fails in the event that happens. The estate in default
can only be defeated by an appointment which takes effect, and
only to the extent to which such appointment does take effect.
This appears to be the ground of the decision in Doc v. Denny
(cited 2 Wils. K. B. 337). In that case lands were limited by
marriage settlement to the use of such children of the marriage
for such estate and estates, and subject to such powers, pro-
visions, conditions, and limitations as A. should appoint, and in
F. M
162
A CONCISE TREATISE ON POWERS.
Extent to
which a
power is
exerciseable,
when one or
more of the
objects dies.
default of appointment to the use of the children of the
marriage in fee, and in default of children to the right heirs of
A. There was an only child of the marriage, a daughter, and
A. appointed to her in fee, with an executory limitation over in
case she died under 21. The child survived the donee of the
power, but died under 21; it was held that her heirs were
entitled, and not the executory appointee. In Eoo v. Diint
(2 Wils. Iv. B. o''^G), which was similar to Doe v. Dcini//, the
Lord Chief Justice thought that a single child in such a case
might be made a tenant in tail : the reporter, however, doubts
this. Lord St. Leonards (Pow. 415) thinks there is no ground
for the doubt ; and tliat, at any rate, where the power is to
appoint for such estate and estates as the donee pleases, the
words of the j)Ower cannot be satisfied without giving the donee
a power to limit the quantity of estate to be taken by a single
child, the only object of the power.
The appointor cannot of coiu"se prevent the estate apj^ointed
from merging in any larger estate to which the object may be
entitled in defaidt of appointment ; e. g., if the appointment is
for life, and the limitation in default is to the object in fee.
This would not applj' to an appointment to the object in tail,
as estates tail do not merge in the fee (13 Edw. I. c. 1).
18. Lord St. Leonards deduces a rule from Reade v. Meade (5
Yes. 744), which he thus states (Pow. 421) : " Where a power is
given by will to appoint amongst several objects, and the estate
in default of appointment is given to them as tenants in common,
the death of any of the objects in the life of the testator will
pro iaido defeat the power and devise over, so that the power
and devise over will only remain as to the shares of the
sur\'ivorg."
The case, however, is very unsatisfactory (see Butcher v. Butcher ^
1 Y. & B. at p. 92 ; 2 Jarm. 265). It is submitted that the decision
must have turned on the impossibility (vmder the law as it then
stood) of excluding any object of the power from a substantial
share of the property to bo appointed. Since the Act 11
Geo. lY. & 1 Will. lY. c. 46, and the Act 37 & 38 Yict.
c. 37, it is submitted that any object of a power, although
APPOINTMENT TO AN ONLY OBJECT. 163
entitled by name to a share in default of appointment, can Lo
excluded. Ai)art from the Acts, an appointment under a power
authorizing exclusion could be made of the whole, altliough the
property was limited in default of appointment to a class of
whom one or more had died {Woodcock v. Renneck, 4 B. 190;
1 I'h. 72; £oi/le v. S. of Peterborough, 1 Ves. J. 290). Thus,
in the ordinary case of a marriage settlement, where property is
held in trust for such of the children of the marriage as the
parents shall appoint, and in default of appointment for the
children at 21 or mamage, an appointment to one or more of
the cliikh'on is undoubtedly good, although other children have
attained 21. Assuming the power to authorize exclusion, it can
make no difPerence whether the persons excluded are living or
dead, whether they would have taken, if not displaced by the
execution of the power, as joint tenants or tenants in common,
or as persons named, or as members of a class. The very object
of the power is to enable the creation of estates or interests para-
mount to, and in defeasance of, the estates or interests limited in
default of appointment : and the actual nature and extent of the
estates or interests defeated can have no bearing on the extent
of the power, which must depend on the construction of the words
creating it. And in Re Ware, Cumberlege v. Cumberlege- Ware
(45 Ch. D. 269), two legacies of £10,000 each were left to J", and
A. for their lives to be " left by them respectively after their
deaths in such proportions as they may appoint to their brothers i
or sisters, Charles, Samuel, and sister Catherine : on failure of 1
appointment, to be equally divided between the three or their
respective representatives." Catherine died before J., and J.
by codicil appointed his £10,000 as to one-third to Charles and
as to two-thirds to Samuel. And A. subsequently appointed her j
£10,000 to Charles and Samuel equally. Stirling, J., held that '
the apj)oiutments were good.
In Pa>>ke v. Ucm'/foof (33 B. 120), the Master of the KoUs
said, that it is settled that if a power of appointment is given to
a person to divide a fund amongst the members of a particular
class, the death of some members of that class before the
exercise of the power will not prevent the donee of the power
M 2
164 A CONCISE TREATISE ON POWERS.
from exercising it in favour of the surYi\'ing members of the
class, even though, if the deceased persons had been alive,
they must have had a share. The difficulty in that case was
that the will especially directed that the appointment should be
made to a person by name, and to others as a class. The
person named died, and the donee appointed among the mem-
bers of the class ; it was held good ; (and see Houston v. Houston,
4 Sim. 611).
Powers need
not be excr-
19. A power may in general be executed by different
ciseduno/atK. appointments made at various times.
This rule held good in cases where, prior to Lord Selbome's
Act (37 & 38 Yict. c. 37), the power was non-exclusive, and an
appointment, not exhausting the whole, did not give a share to
every object of the power ( Wilson v. Piggott, 2 Ves. J. 351 ;
Bristoic V. Warde, ibid. 336).
"Were this otherwise, under the ordinary power in a marriage
settlement to appoint trust funds among children, no appoint-
ment could be made to a child on marriage or settlement in life,
until all the other children had also become of such an age that
their future destination could be ascertained and fixed {Cuning-
hame v. Anstruthcr, L. E. 2 Sc. & D. 223 ; Co. Litt. 237 a ;
Bigges' rasf, 1 Co. Rep. 173 ; Omerod v. Hardman, 6 Yes. 722 ;
Sug. Pow. 272; Zone// v. Wookton, 2 Burr. 1136; Jjoe v. Mil-
home, 2 T. R. 721 ; but seeBroirn v. JVisbetf, 1 Cox, 13, observed
on in Webster v. Boddington, 16 Sim. 177).
And where there is a primary power, and in default of its
execution a secondary power, a partial exercise of the primary
power does not preclude an exercise of the secondary power
over the portion of the fund which remains unaffected by the
exercise of the primary power {Mapleton v. MapJeton, 4 Dr. 515),
where the Yice-Chancellor, on the strength of Lord St.
Leonards' strictures, refused to follow Simj^son v. Paul, 2
Eden, 34.
By sect. 55 of the Settled Land Act, 1882, it is expressly
enacted that the powers thereby conferred on a tenant for life or
165
PERIOD OF EXECUTION.
trustees, or the Court, or tlie Land Commissioners, are exercise-
ablo from time to time.
20. One consequence of the rule stated in the last section,
and of the doctrine of equity, that a mortgage is merely a
security for a debt, is that tlie donee of a general power of
appointment or revocation, who exercises it by way of mortgage
in fee, does not thereby fully execute the power in equity,
although he has at law appointed tlie whole fee : the equity of
redemption remains unappointed : but when this is reserved to
persons other than those entitled under the deed creating the
power, as, for instance, to the appointor, his heirs and assigns,
the question arises whether this reservation is to be taken as an
appointment of the equity of redemption, so as to defeat the
persons entitled in default of appointment.
It is in such case a question of intention, but by analogy to
mortgages made in cases not under powers, where the right to
redeem is limited to a person who had either no interest, or a
partial interest only, in the land at the time of the mortgage,
and the rule which holds with respect thereto, viz., "that a
strong indication of intention is necessary to transfer the bene-
ficial ownership of the equity of redemption from the person
entitled to the beneficial ownership of the estate at the time of
the mortgage, or to vary his rights" (Co. Litt. 208 a, n.), it may
be laid down that —
In an appointment by way of mortgage, the When the
^ '■ J ^ ^ y^ reservation of
reservation of the right to redeem to persons the equity of
• T • J • redemption
other tlian those to whom the estate is limited m operates as ar
- . , appointment.
default of appointment m the deed creating the
power, is not of itself an appointment of the
equity of redemption [Ruscomhe v. Hare, 2 Bl.
N. S. 192; 6 Dow. 1).
The question in these cases is whether the mortgage operates Presumption
. , . . , , 1 ^ in favour of
only to charge the estate comprised in it, or operates also, its operating
beyond that purpose, to alter the Umitations of the estate ^jlj^^^^*
166
A CONCISE TREATISE ON POWERS.
Presumption
BtroDg -where
•vnfe joins in
mortgage.
subject to the charge. " This question depends upon the inten-
tion to be collected from the deed." There cannot, therefore, be
any general rule : each case must depend upon its own particular
circumstances ; and the authorities " furnish us with no further
guide than that the charge upon the estate being, of course, in
cases of this nature the immediate motive of the deed, the
Court will not impute the further intention to change the limi-
tations, unless that further intention appears by recital or other
special circumstances ; and that the mere fact of the reservation
of the equity of redemption deviating in a slight or partial
degree from the original limitations of the estate does not of
itself furnish sufficient ground for imputing the further inten-
tion to change the limitations, but is rather to be ascribed to
inaccuracy or mistake " {per Turner, L. J., in Heather v. ffNeill,
2 De a. & J. at p. 414).
The presumption that the object of the deed is only to effect
the charge is perhaps most strongly illustrated in cases where a
wife joins with her husband in mortgaging her own estate.
" The principle is this — that in a mortgage, the mere form of
reservation of the equity of redemption is not of itself sufficient
to alter the previous title. In such a case (where fraud is out of
the question) 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 is conformable to the
principle upon which other cases have 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
according 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 aud her heirs" {x>er Lord Eedesdale,
1 Bl. 114).
RESERVATION OF EQUITY OF REDEMPTION. 1G7
But it is, however, only an equity, and jtarol evidence is Presumptioa
therefore admissible to rebut it by setting up another equity — butted by
for instance, that the money was bon-owed for the use and benefit ^ence^^^'
of the wife {Lord Kuuioul v. Motuij, 3 .Sw. 202, n., 208, n. ;
Clinton v. Hooim-, 3 B. C. C. 201 ; 1 Ves. J. 173 ; Hiuhon
V. Cannichael, Kay, G13; Plomley v. FeUon, 14 Ap. Ca. 61).
Tlie following cases illustrate the principle stated in the fore-
going rule: Brcml \. Birnd (1 Yern. 213) ; Ilipkin v. Ill/son
(3 De G. & S. 738) ; Stansfiekl v. Hallam (29 L. J. Ch. 173) ;
Huntingdon v. Huntingdon (2 Wh. & T. L. C).
The same presumption arises where the mortgage is of the Presumption
wife's leaseholds : and, in the absence of evidence to the con- mortgage of
trary, the mortgage is held to be merely a security, and not to ^oid/ ^^^'
operate as a reduction into possession by the husband {Clark v.
Burgh, 2 Coll. 221 ; M'Cullagh v. Littledalc, 9 I. E. Eq. 465;
and see Pigott v. Pigott, 4 Eq. 549, where the mortgage was of
redeemed land-tax which before marriage had belonged to the
wife ; and see Re Betton, 12 Eq. 553 ; IFood v. Wood, 7 B.
183).
The case of Eddleston v. Collins (3 D. M. & Gr. 1), turned on
the evidence of intention to vary the estate of the wife in the
equity of redemption by giving her husband power to create
further charges {see per Turner, L.J., at p. 15 ; and see Pitt v.
Pitt, T. & R. 180).
If the intention of the wife be clear that the husband should Effect of wife
have her estate, he must of course have it; but it is an esta- m^t^fi^,
blished principle, to be applied in deciding upon the effect of
mortgages of this description, whetlier it be the estate of the
wife, or the estate of the husband, if the wife joins in the con-
veyance, either because the estate belongs to her, or because she
has a charge by way of jointure or dower out of the estate, and
there is a mere reservation in the proviso for redemption of the
mortgage, which would carry the estate from the person who
was owner at the time of executing the mortgage, or where
the words admit of any ambiguity, that there is a resulting
trust for the benefit of the wife, or for the benefit of the
168 A CONCISE TREATISE ON POWERS.
husband, according to the circumstances of the case (1 Bl.
126).
This passage must, however, be read with reference to the
cases which had previously been discussed by Lord Redesdale ;
and it has been held not to warrant the proposition that a wife,
who for the pm-pose of releasing her right to dower joins with
her husband in mortgaging his freehold and allows the equity of
redemption to be limited to the husband, his heirs, and assigns,
has any further interest in the estate (see Dawson v. Bank of
Whitehai-en, 6 Ch. D. 218 ; Jaclson v. Parker, Amb. 687 ; and
Meek V. Chaniherlain, 8 U. B. D. 31).
The general doctrine, however, is, that equity considers an
execution of a power of appointment or revocation which is
made by way of security to let in a particular incumbrance, as
an execution jyro tanto only (see an opinion of L. C. B. Mac-
donald and Y.-C. ShadweU, 2 Mer. 179, n).
In Whitbread v. Smith (3 D. M. & G. 727), A. settled estates
by deed in 1817, to such uses as he and his wife should jointly
appoint, and in default to the use of himself for life, with
remainder to the use of his wife for life, with remainder to the
use of his son in fee. A. and his wife made several mortgages,
all, except one, limiting the equity of redemption consistently
with the uses of the deed of 1817. In 1832 they made another
mortgage, which limited the equity of redemption to A. and his
wife, their heirs and assigns, or to such persons as they should
direct. It was held that this proviso was not intended to vary
the limitation of the equity of redemption, and did not defeat
the limitation of the fee in the deed of 1817 ; (but see Atkinson
V. Smith, 3 D. & J. 186, a case which Lord St. Leonards says it
would be difficult to reconcile with Whitbread v. Smith, Pow.
285 ; and Barnett v. Wilson, 2 Y. & C. C. C. 407, which seems
also to conflict with the last-named authority) .
Evidence of 21. But it will be otherwise, if there be other indicia of
resettle. an intention to alter the destination of the estate, besides the
mere variance in the persons to whom the reconveyance is to be
made on repayment. Where the form of the equity of redemp-
RESERVATION OF EQUITY OF REDEMPTION. 169
tion has notliing to do with the limitation of the estate, where
the limitation of the estate is perfectly distinct, the rules which
have been estahlished in the cases of resulting trusts do not in
any degree ap})ly (1 Bl. 128).
In Rowel V. Walley (1 Cha. Eep. 116), the wife joined with
her husband in a mortgage of her lands by a deed containing a
proviso and declaration that if the husband and wife, or either
of them, or their heirs, executors, &c., rejjaid the debt, the fine
to be levied in accordance with a covenant contained in the mort-
gage deed should enure to the husband and wife and the longest
liver of tliem, witli remainder to the right heirs of the husband.
That was a case of distinct declaration, in no manner depending
on the proviso for redemption, but defining the course in which
the property was to be carried after the satisfaction of the mort-
gage. A fine was afterwards levied according to the agreement,
and after the husband's death the widow filed a bill to redeem.
It was determined that the subsequent declaration and limitation
having no connection with the proviso for redemption, but de-
claring what should become of the property after the mortgage
was satisfied, operated against the construction of a resulting
trust for the benefit of the wife. It was held to be a distinct
settlement, and that she had parted with her estate.
In Jones V. Dan'es (8 Ch. D. 205), land of the husband was
settled on his marriage to such uses as the husband and wife
should by deed jointly appoint, with remainder to the use of the
husband and wife successively for life, with remainder to the
use of the childi-en of the marriage as the parents should jointly
by deed, or as the sm-vivor should by will, appoint, and in
default of appointment to the use of the children as tenants in
common in fee, with an ultimate remainder in default of children
to the use of the husband's heirs and assigns. The husband and
wife afterwards mortgaged the projierty, the equity of redemp-
tion being limited to the uses of the settlement ; but the deed
contained a declaration that the surplus proceeds of any exercise
of the power of sale should be payable to the husband, his heirs,
executors, administrators, or assigns. The mortgagee sold the
property after the death of the husband ; and it was held that
170 A CONCISE TREATISE ON POWERS.
there ^vas no ambiguity nor any mistake to be implied : " the
proviso for redemption is clearly to the uses of the settlement,
but a different trust is declared with regard to the surplus sale
moneys": and the surplus was ordered to be paid to the
husband's representatives.
In Jackson v. limes (1 Bl. 104), lands were settled to the use
of A. and his wife successively for life, with remainders over,
and the deed contained a joint power of revocation and new
appointment. A. and his wife mortgaged the lands for a term
of years, and covenanted to levy a fine, to enure to the use of
the mortgagee, his executors, administrators, and assigns, for
the remainder of the term, subject to the proviso for redemp-
tion ; and from and after the expiration thereof, to the use of
A. and his wife for their lives, and the life of the survivor of
them, with remainders over, inconsistent with those limited by
the former settlement. Lord Redesdale said that the operation
of the deed as to the mortgage term, and as to the limitation in
fee, was wholly distinct, and did not in any way depend on
each other. The question did not arise on the interpretation of
the proviso for redemption, but on a distinct and subsequent
clause. The term and the fee were kept distinct : the term was
the security for the money : on its ceasing, the operation of the
deed, so far as it declared the limitation of the estate subject to
the term, remained perfectly distinct, and had no connection
whatever with the existence of the term, which then would have
ceased to exist. Lord Eldon concurred in this decision, although
it reversed his own judgment in the Court below (16 Ves. 356 ;
Sug. Pow. 278).
Recital not Although it is not necessary, as once stated by Lord Eldon,
?nt?nt?o'?' ^"^^ that there should be an express recital in order to alter the
must be clear, destination of the estate, the evidence of intention must be
clear. " If the equity of redemption is reserved as to part of
the estate in one way, and as to another part of the estate in
another way, the argument is very strong indeed in favour of
these different limitations having been intended to mean different
things, and even of both having been intended to mean exactly
what they imported. It may be shown on the face of a mort-
RESERVATION OF EQUITY OF REDEMPTION. 171
gage deed that there is an intention to resettle tlic equity of
redemption, hut it must be shown by something wliich bears
expressly on that identical point. I do not say that it must be
stated in terms that there is an intention to resettle, but it must
be shown unequivocally that there is the intentitju " {per V.-C.
Wickens, Re Bet tun, 12 Eq. 557 ; Barnett v. Wihon, 2 Y. & C.
C. C. 407 ; EddlcHtou v. Collins, 3 D. M. & G. 1 ; lie Byron,
(1891), 3 Ch. 474.)
An intention to alter the rights of parties in the equity of Intention to
alter rights
redemption may be inferred where the mortgagor or party inferred from
... , ^ n • ^ • L L reservation of
jommg reserves a greater or more bencticiai mtorest. greater estate.
In Anson \. Lee (4 Sim. 304), a tenant in tail, with remainders
over, suffered a recovery to such uses as he should by deed or
■will appoint, and in default to the uses of his AvilL He then
mortgaged part of the estates in fee, limiting the equity of
redemption to the prior uses ; and afterwards joined in a
transfer of the mortgage, reserving the equity of redemption to
himself in fee. It was held that the last reservation had the
effect of revoking the former uses, and gi\dng the mortgagor a
fee simple estate in the mortgaged property; (see Lord St.
Leonards' criticism on the case, Pow. 345 ; and see Atkinson v.
Smith, 3 De G. & J. 186).
There is some difference, too, between an ordinary mortgage Difference
between mere
by appointment under a power, and an appointment and con- mortgug-e and
veyance to trustees upon trusts expressly declared. In the case express trusts.
of a mere ordinary mortgage, in which the reservation of the
equity of redemption differs from the original limitations of the
estate, the Court has no guide for determining between the
constructive trust which arises from the terms in which the
equity of redemption is reserved, and the trust which would
otherwise result ; but where there is a trust expressly declared,
it is far otherwise. The Court cannot reach back to the original
limitations without countervailing the trust wliich is expressly
declared. Again, where there is an appointment by a person
having an absolute power, he is the entire o^^^ler or master of the
property, and no liability can attach upon him in whatever
mode he may think proper to reserve the equity of redemption :
172 A CONCISE TREATISE ON POWERS.
but the case is very different wliere there is such an appoint-
ment coupled with a conveyance by the trustees who hold upon
trusts subject to the power. Such trustees cannot be justified
in conveying, unless there be an intention to alter the limita-
tion {per Tui-ner, L. J., in Heather v. O'Neil, 2 D. & J. 415).
In Fitzgerahl\. Faneonherge (Fitzg. 207), A., being seised in
fee in 1712, settled his estate to the use of himself for life, with
remainders over, reserving to himself a power of revocation
by any writing attested by three witnesses. In 1715, A., by
lease and release, attested by two witnessess, reciting that he
was indebted to the persons named in the schedule, conveyed to
trustees and their heirs on trust to raise out of the rents and
profits, or by sale or mortgage, sufficient to pay his scheduled
debts ; and after payment thereof to pay the overplus (if any),
and reconvey such part of the premises as should remain unsold
to A., or such other person and for such uses as he by deed,
attested by two witnesses, should direct. It was contended that
the deed of 1715, being made for a particular pm^oose, would
be a revocation 2^^^o tanto only, and that the residue of the
estate continued subject to the old trusts ; but the Lord
Chancellor, the Master of the Eolls, and the Lord Chief Baron
were all of opinion that the deed of 1715 operated as a
total revocation of the deed of 1712 ; (and see Martin v. Mitchell,
2 J. & W. 413 ; Fisher on Mortgages, 4th ed. 698 et seq.; Sug.
Pow. 276).
22. A power cannot be validly executed, except by
such instrument or instruments as shall have been
specified by the author of the power.
By Tvill when If a power is to be executed by deed it cannot be validly
r4SJed. exercised by will {Lord BarUngton v. Fulteney, Cowp. 260 ;
Lady Cavan v Doe, 6 Bro. P. C. 175). In Bushell v. Bushell (1
S. & L. 90), there was a joint power of appointment by deed
given to husband and wife : the husband made his will, and
after his death his wife endorsed thereon her approbation of
the disposition of the property thereby made. This was held
bad, nor would it have been better if the wife had ratified it
INSTRUMENT OF EXECUTION. 173
at the time of the execution, it being revocable by the husband
during^ his life.
A deed is an instrument sealed and delivered (Co. Litt. 171 b; Characterifl-
Shep. Touchstone, Chap. IV. p. 50) ; and in most cases signature
also is required (2 Stephen's Comm., 8th ed., 491). Mr. Chance
(Pow. pi. 875) suggests that a power to appoint by writing does
not necessitate the signature of the writing {^cd qu.).
A power to be executed by will cannot be validly exercised by By deed -when
any instrument to take effect in the lifetime of the donee of the required,
power (7?^'/V/ v. Shcrgohl, 10 Yes. 370).
If, however, the instrument purporting to execute the power Testamentary
shows really a testamentary intention, it is not to be considered
as a deed merely because it bears a seal, or is in otlier respects
in the form of a deed ; but if it is in substance a deed, if it
shows an intention that it sliould operate as an act inter vii-os, an
act by which the party who executed it would lose the power of
dominion over the property which he previously possessed,
it must be regarded as a deed {Marjorihanks v. Hovenden,
Dru. 11 ; and cf. Fortcscitc v. Ilennah, 10 Ves. 67.)
But an instrument, in form a deed, will not be held to be Not to be
testamentary from the circumstance that the limitations, owing iSutatious!™
to the nature and state of the property, cannot take effect until
after the death of the appointor [Ilougham v. 8andi/s, 2 Sim.
95, 137 ; Tomjmii v. Browne, 3 M. & K. 32).
A power to appoint " by will or otherwise," or '' by deed or
otherwise," of course includes all methods by which the pro-
perty subject to the power can legally pass. And a power to be ^ '"'^ is "an
executed by an " instrument in writing " can be executed by writing."
will ; for a will is an instrument in writing. But the forma-
lities required must be observed ; for the power is not in terms
a power to appoint by will ; and whether it has been duly
exercised by will or not, depends on the inquiry whether the
will answers the description of the required instrument contained
in the power. If one of the requisite solemnities be wanting,
the will does not do so, and the Statute of Wills does not make
it iinswer. The statute applies to powers requiring sijecitically
a ici//, with other solemnities in addition to the solemnities
174
A CONCISE TREATISE ON POWERS.
Power exer-
ciseable by
deed, instru-
ment, or ■will.
Statute of
Frauds must
1)0 .satisfied
where pro-
perty is realty.
Secus, as to
personalty.
rendered necessary bj the statute, and in such case declares that
a will without such additional solemnities shall be sufficient;
but it does not touch the case of a power requiring an imtnimcnt
in in-itiny, signed, sealed, and delivered. The only principle on
which a will was ever held to be a good execution of such a
power was that it answered the description. If it does not, it
is not an execution, and the statute can afford no help {Tai/lor
V. Meads, 4 D. J. & S. 597 ; 34 L. J. Ch. 20:i ; 13 W. E. 394 ;
JTest V. Ba//, Kay, 385 ; Orange v. Pickford, 4 Dr. 363 ; 27
L. J. Ch. 808, where the will was prior to the Wills Act;
Smith V. Adkins, 14 Eq. 402). BacMl v. Blenkhorn (5 Ha. 131)
is overruled on this point.
In Brodrick v. Broivn (1 K. & J. 328), V.-C. Wood said
that a power to dispose of personalty standing in the name of
trustees, " by deed or deeds, instrument or instruments, or by
will," would be well executed by a written order directed to the
trustees. If the donee were himself sole trustee, a cheque on
the bankers where the fund was lying would be a good appoint-
ment, if he had no money of his own there. So, too, would a
letter from him, referring to the power or the property, and
accompanying a gift of money, which it stated to be in pursu-
ance of the power, or out of the property.
If the property subject to the power is real estate, any uses
or trusts affecting it must be declared in such a manner as to
satisfy the Statute of Frauds. Thus, in Hawke v. Haicke (26
W. R. 93), real estate stood limited to such uses as A. and his
wife should by deed or writing jointly appoint. A. wrote out
with his wife's assent an appointment by way of settlement, and
sent a copy to his solicitors as instructions, and then died before
the deed was executed. This was held to be insufficient to
satisfy the Statute of Frauds, as there was no writing signed by
the wife (cf. Dye v. Dye, 13 Q. B. D. 147).
If the property is personal, no writing is necessary unless the
power requires one. A parol trust can be declared of personal
estate; and the execution of the power over personalty is
merely the declaration of a trust. Thus, in Prohy v. Landor
(28 B. 504; 30 L. J. Ch. 593), an unsigned memorandum in
BY WHAT INSTRUMENT EXERCISEABLE. 175
the testator's handwriting was held to be sufficient. And in
Baiky v. IIiKjhcs (19 B. 1G9), the M. E. said that it was not
necessary to exercise the power Ly any formal instrument, and
the more fact of saying how the property was to be divided
would have been sufficient.
If a power e.xerciseable by "-vvTiting" is executed by a will, Exorcine of
such will is of course revocable, although no express power of revocable
revocation is reserved {Lisle v. Lisle, 1 liro. C. C. 5:33). r^i''"' '^I
\ ' ' press power.
A power, to be executed by one instrument, may, it seems, be By several
executed by several assurances, which, although insufficient if assurances,
taken singly, will 0])erate together as one complete act ; but in
order to enable the Com-t to read the whole series as one assur-
ance, such must be the intention of the parties on the perfection
of the fimt assurance (Sug. Pow. 227 ; and see Lord Brayhrooke
V. Aftoniey-Gowral, 9 II. L. C. 150). A power to revoke uses
by deed, and by such deed to declare new uses, may be exercised
by one deed {FitzivUUamh case, 6 Co. Rep. 33).
23. The distinction between common law powers and powers Practical
operating under the Statute of Uses is important \\Tith reference distinction
, ,, . ,. T^ J 1 T L' L 1. between com-
to their execution. I or the same words, purporting to be an ^^^ j^^ ^^^
execution of powers of different natures, may give the legal statutory use
•i ' ./ o o powers, qua
estate to different persons. Thus, if lands be limited to such their eiecu-
uses as A. shall appoint, and A. appoints to B. and his heirs to
the use of C. and his heirs, B., and not C, will take the legal
estate {Doe d. Worger v. Uaddon, 4 M. & E. 118). But if A.'s
power had been a common law one — e.y., if there had been a
devise by a testator that A. should sell his lands, the same words
of appointment would have vested the legal estate in C, for it
seems clear that powers under wills operate in exactly the same
manner as powers under other instruments operating by way of
use (Sug. Pow. 196).
24. No technical words, however, are necessary to render the
execution of a power effectual, if the intention be clear : and
the instrument creating the power need not be recited {Maioulrell
V. Maumh-eU, 10 Yes. 246, 258; Clere's case, 6 Co. Eep. 17).
" If the intention to execute the power be clear, it makes no
difference that the donee does not refer to, or take the slightest
176
A CONCISE TEEATISE ON POWERS.
notice of it : quia non refert an quis intentionem suam declaret
verbis an rebus ipsis vel factis" (L. R. 2 Sc. & D. 233).
25. The rule for deciding whether an intention to execute is
shown or not, is thus stated by V.-C. Wood. It applies to cases
where the donee of the power has no interest (see ponf, p. 266),
and also to the execution of general powers by deed, and by
will before the "Wills Act, and of limited powers, whether by
deed or by will, both before and since the Act.
Requisites to
show inten-
tion to execute
a general
power by deed
or by vrill
before the
Act ; or a
limited power.
The instrument must refer either to the power,
or to the property subject to the power; or it
must affect to deal with some property in general
terais, not defining it, under such circumstances
that it cannot have effect except upon the property
comprised in the power [Drodrick v. Brown^ 1 K.
& J. -332 ; Hales v. Margerum, 3 Ves. 299 ; Bennett
V. AkuTotv, 8 Ves. 609 ; Hughes v. Turner, 3 M. &
K. 666, 696; Andretus v. Bmmot, 2 Bro. C. C.
297; Re Williams, 42 Ch. D. 93; Sug. Pow. 201,
289).
Thus, in Roake v. Denn (4 Bli. N. R. 1 ; 1 Dow. & C. 437),
testatrix was tenant in fee of an undivided moiety of an estate
in Surrey, and tenant for life of the other moiety, with a power
to appoint the latter moiety in fee. By her will she devised all
her freeholds in Surrey ; and it was held to be no execution of
the power, since she made no reference either to the power or to
the subject thereof, and there was her own undivided moiety for
the will to operate on ; (and see He Walsh's Trusts, 1 L. II. Ir.
320 ; Harvey N. Harvey, 32 L. T. 141 ; 23 W. R. 478 ; Re Mills,
34 Ch. D. 186).
The rule above stated is, of course, subject to the rules before
stated relative to the execution of powers. The powers in the
following cases either did not require any particular form of
instrument, or complied with such requirements.
REQUISITES FOR EXECUTION. 177
In Fortescue v. Grrtjor (5 Yes. 553), A. luul a power of ap- Recital in
, (•i'rt_i.A Petition and
pointment in favour of three children over a tunc! in Court. A payment out
petition was presented by one of the children reciting that A. ^^^^ °*
was desirous that the fund in Coui-t should he equally divided
among the three children, and a third of the fund was accord-
ingly transferred to the petitioner. A. then died without
making any further appointment; and it was held that the
recital in the petition was sufficient evidence of intention to
appoint the whole fund in equal shares, no special form of
appointment being prescribed. It does not appear from the
report whether A. was served with the petition, or whether all
the children took in defaidt of appointment ; (and see Lcc v.
Head, 1 K. & J. 020 ; Fo.sfer v. Cauf/ri/, 6 I). M. & G. 55).
In Carter v. Carter (Mos. 365), a statement in an answer in Answer.
Chancery that a defendant had appointed, and did intend to
appoint in due form, was held sufficient.
In Cuniu(j]iame v. Andruther (L. R. 2 Sc. & D. 223), both Recital in a
. , ii X 1 settlement,
parents in one case, and the survivor m the other, took upon
themselves and himself respectively an obligation on the re-
spective marriages of their two daughters to pay a certain sum.
This sum was expressed to be accepted by the daughters " in
satisfaction (amongst other things) of the share or division
thereby allotted to her of her said father and mother's property
settled by their marriage contract." The said marriage con-
tract comprised funds, settled so as to belong ultimately to the
children of the marriage, as the parents or the sm-vivor of them
should appoint, and in default to the children equally. It was
held that there had been a sufficient reference to the power to
show that the appointor meant to execute it by the settlement
which contained such reference ; (and see Wihon v. Piggott, 2
Yes. 351 ; Pouhon v. WeUingtou, 2 V. & W. 533 ; Griffith-Bon-
cawen v. Scoft, 26 Ch. D. 358 ; Be Fame//, 33 Ch. I). 599).
A bill filed against executors to compel a transfer of a fimd Bill,
by a person to whom such fund had been left for life, with
power to dispose of it by will or otherwise, has been held suffi-
cient {Iruiii v. Farrer, 19 Yes. 86). So, too, the presentation
F. N
A CONCISE TREATISE ON POWERS.
Change of in-
vestment, and
power of
attorney
insufficient.
Intention to
execute is
necessary.
of a petition for payment out of Court of the fund {HoUoicay v.
C/(irkso)i, 2 Ha. 521 ; lie David, Jolin. oOO). And payment out
has been directed without the execution of a formal appointment
{Cambridge v. Ixo/i.se, 2o B. 574).
"Wliere A. liad a life interest in stock standing in the names
of trustees, with a power of appointment over a moiety by will
or otherwise, and she sold out the stock and reinvested it in her
own name, she was held not to have thereby exercised her power
{Eeif/i V. Seijmou)', 4 Euss. 2G3). But in Marler v. Tommas (17
Eq. 8), shares in an unlimited company were standing in the
name of the trustee of a settlement on trust for the separate use
of the wife for life, and after her death for her general appointees
b}' deed or will. The husband died, and the trustee transferred
the shares to the wife, and she executed the deed of transfer.
This was held sufficient. Such a power would not be executed
by giving a power of attorney, executed in accordance with the
terms of the power, to transfer the money, for that would be to
turn an instrument of substitution into one of alienation {Ilurjhes
V. Welh, 9 Ha. 749).
But there must be evidence of an intention to execute : a mere
reference to or mention of the fund is not sufficient, although
accomjianied by a confirmation of the instrument containing the
power.
In Re Brirujloe (26 L. T., N. S. 58), A., being entitled under
B.'s will to personalty, settled 3,000/. thereout on 0. On his
own second marriage in 1823, he settled a further 2,500/, on his
"wdfe for life, with remainder to the children of the marriage ;
and in default of issue, for his own general testamentary ap-
pointees ; and in default of appointment, for his next of kin.
A., by his will in 1824, after reciting that he was entitled to
personalty under B.'s will, and that he had settled 3,000/. thereof
on C. and 2,500/. on liis wife on her marriage, confirmed the
said settlement, and as to all the residue of the moneys to
which he was entitled under B.'s will, he gave them on certain
trusts. The testator died without issue in 1829 and his wife in
1869. This residuary gift was held not to be an exercise of the
power of appointment created by the settlement in 1823 : the
REQUISITES FOR EXECUTION. 179
2,500/, went as in default of appointment, to A.'s next of kin,
who were to bo ascertained at liis wife's doatli in 1860.
26. The rule being that there must be a reference to the power, In<iicia of
. . inteution to
or to the property subject to the power, m order to show an m- execute,
tention to execute, the diflicultj chiefly arises in ascertaining
whether such intention has been displayed (see Ilan-ey v.
Stracci/, 1 Drew. 73, llo).
There are various indicia which have been held to point to an
intention to execute, or the reverse.
Thus, if the donee refer to the subject-matter of the power Reference to
in such a manner that, if it had been a gift of the testator's nmtter.
own property, it would be held to point to particular stock in
his possession, it will bo sufficient : but it will be otherwise, if
the words would not amount to a specific or demonstrative gift.
In lie David (John. 495), a testatrix bequeathed "all the
residue of my property to be found in the Three-and-a-Half
per Cent. Reduced Bank Annuities (now reduced to Three-and-
a-Quarter per Cent.) and all other property whatsoever and
wheresoever." She had no stock of her own at the date of the
will, or at any time after, but had a limited power of appointment
over a sum of Reduced Bank Annuities. This was held a suffi-
cient reference ; (and see lie Grafivick, 1 Eq. 177).
In Davies v. Davies (7 W. R. 85), a tenant for life of settled
real estate had power to charge the settled estate with 500/.
for younger children. He purported to devise the settled estate
by his will, charged with 500/. for his younger children. This
was held a good execution.
On the other hand, in Webb v. Hon nor (1 J. & "W. 352), a
testator, having a general power over a fund in consols, limited
in default to his children, and having no other funded property,
bequeathed "the whole of my personal estate consisting of
the public funds, household furniture," &c. It was held that
this did not operate as an appointment, and that the fact of the
testator ha\'ing no other funded property could not be regarded.
And in Jie JLiffin(//e//\s Tnisfs (2 J. & II. 426), a testator, having
power by will to appoint a fund in consols among his children,
bequeathed all his personal estate upon trust to pay debts and
n2
180
A CONCISE TKEATISE ON POWERS.
Identity of
amount of
legacies and
of fund in-
Bu£G.cient.
funeral expenses, a legacy of 19/. to his daughter A., and to his
daughter B. all his household furniture ; and " as to all my
money in tlie funds and all the residue of my personal estate "
upon further trusts for the benefit of B. It was held that,
although at the date of his will, and of his death, he had no
other funded property, this did not operate as an appointment.
But the circumstance of legacies being identical in amount
with a fund subject to a power, and of the insufficiency of the
donee's own property to answer the bequests given by the will,
are not enough to raise more than a conjecture, and therefore
not enough to form grounds of judicial determination [Daiies v.
Thorns, 3 De Q. & Sm. 347 ; Jones v. Tucker, 2 Mer. 533 ;
Buxton Y. Buxton, 1 Ke. 753 ; Lowe v. Pennington, 10 L. J. Ch.
83). But in Lou-nds v. Bounds (1 Y. & J. 445), a testator, by his
will, bequeathed sums amounting in the whole to exactly the
sum over which he had a power of appointment, but made no
reference to the power, and did not expressly refer to the subject-
matter of the power. He had, practically, no other property
than that over which the power extended. Alexander, C. B.,
took this point into account and held that the will operated as a
good appointment ; (and see Roolie v. Rooke, 2 Dr. & Sm, 38 ;
31 L. J. Ch. 636).
Where legacies are given to objects of the power, and the
fund is then appointed to a stranger, subject to the legacies,
there is a sufficient appointment of the legacies {Bisncy v. Crosse,
2 Eq. 592). But a reference to a part of the subject of the
power in a specific gift will not be enough to exercise the power
over the rest of the property the subject thereof {Hughes v.
Turner, 3 M. & K. 666). In Elliott v. Elliott (15 Sim. 321),
a testatrix, having personal estate of her own, and a sj^ecial power
of appointment over two sums of government stock, by her will
gave one-third of the two sums to objects of the j)ower, and
bequeathed all the residue of her personal estate, after payment
of her debts, funeral and testamentary expenses, and the before-
mentioned legacies, to two persons, objects of the power. This
was held to be a good exercise ; but in his judgment the V.-C.
said : " I admit that, if it had been simply a gift of all the
REQUISITES FOR EXECUTION. 181
residue of ]ier personal estate and effects, it would not have been
an exercise of the power ; but as she has added the words ' after
payment of the before-mentioned legacies,' and as the funds
over which she had the power were alone made applicable to
satisfy some of those legacies, I must of necessity hold that this
residuary clause refers not only to her own personal estate, but
to the funds over which slie had the power " ; (and cf. Gains-
ford V. Dunn, 17 Eq. 405). In Re Comber (14 W. R. 172),
the testator began his will in the following terms : " Ilaving the
disposal of 2,500/. bank annuities, I dispose thereof as follows,"
and then gave 200/. "part thereof," and 100/. "other part
thereof," and 100/. "other part of the aforesaid stocks;" and
then " as to all the rest residue and remainder of my personal
estate whatsoever and wheresoever," he gave the same to A.
It was held that the residuary bequest operated as an execution
of the power over the balance of the fund ; (and see I)uies v.
Sayer, 3 M. & G. 606, 612 d neq.) In Reid v. Reid (25 B. 469),
a testatrix, having considerable property of her own, including
some ground-rents but no otlier freeholds, and having a power
of appointment under her husband's will over otlier property,
including ground-rents and freeholds, made her will and in
pursuance of her power disposed of her own and her husband's
property. Slie gave to A. certain property of her own "and
10/. a year out of my ground-rents;" to B. a house over which
she had a power only, and " likewise the whole of the residue of
my property of every description (excepting my freehold pro-
perty as disposed by the codicil to my will)." It was held that
as she had expressly excepted, as her own, property over which
she had a power only, her intention was clear that the will
should operate as an execution of the power as to the residue.
The execution of a power of appointing real estate will not Appointment
generally show an intention to exercise a power of appointing a docs not^exe-
sum secured by a term on the same estate. ^^^^ fo^er of
appointing
In Farmer v. Bradford (3 Russ. 354), an estate subject to a a charge
r> !• • thereon.
term ot years was limited to such uses as A. should appoint,
and in default to him in fee. The trusts of the term were (in
the events that happened) to raise 1,000/. for A.'s appointees,
182 A CONCISE TREATISE ON POWERS.
and in default of appointment for B. A. by liis will before the
"Wills Act devised the estate and gave all the residue of his
property to C. : the will took no notice of the term. B. was
held entitled to have the 1,000/. raised for his own benefit.
The Wills Act has made no difference in this respect. In
C/ifibnl V. CUford (9 Ha. 675), A. had power to appoint lands
in fee : he had also power to appoint a sum secured by a term
in the same lands. A. aj^pointed the lands to B. for life with
remainders over, and made him residuary legatee absolutely.
The sum secured by the term was held to pass under the
residuary gift to B. absolutely, and not under the express
appointment of the fee.
Reference to A reference to part of the subject or to some of many subjects
■when testator of a power, will not be sufficient to make a will operate as an
ove/tw^^^ execution of the whole power where there is no other indication
of an intention to execute it {Hughes v. Turner, 3 M. & K. G66).
In Lcu-is v. Lleu-eUyn (T. & R. 104), a testator had freehold
estates of his own but no copyholds : he had also a j)ower of
appointment over both freeholds and copyholds. By his will
he devised all his freehold and copyhold estates. The devise
was held to execute the power over the copyholds, but not over
the freeholds.
In Napier v. Napier (I Sim. 28), testator by will in 1799
devised all his lands in nine several parishes, which he named.
In five of these he had lands only in fee ; in three of them,
lands over which he had a power of appointment ; and in the
ninth, both lands in fee and lands over which he had a power.
He made no reference to the power : and it was held that,
whereas the lands in the three parishes over which lie had only
a power passed, because otherwise there were no lands in those
parishes for the will to operate on, yet the lands in the ninth
parish over which he had a power did not pass, because in that
parish he had other lands to which the will might refer ; (see
co)dra, Walker v. Mackie, 4 Ituss. 70, and the strictures of Lord
Cottenham on that case in Hughes v. Turner, 3 M. & K. at
p. 697).
On the other hand is Re Wait, Workman v. Petgrave (30
REQUISITES FOR EXECUTION. 1^-5
Ch. I). G17), a testator, having a special power to appoint two
estates at 13. anrl S., and a one-fourth share in the X. colliery,
devised his estates at B. and S. and gave " all my share and
interest in the X., Y., and Z. collieries." There was no
reference to the power, hut neither at the date of his will nor at
the time of his death, had the testator any property of liis own
at B. or S. lie bad, however, as liis own ahsolute property, a
small sliare in the X. colliery and some shares in the Y. and Z.
collieries. Pearson, .!., held that the testator must have intended
to exercise the power over the estates at B. and 8., because
otherwise there was notliing for the devises of those estates to
operate upon ; and that the testator, having so intended in those
two cases, he must be presumed to liave had a like intention
■with regard to the third gift, and that the will operated as a
good execution of the power over the settled one-fourtli share in
the X. colliery.
The instrument of appointment need not in express terms
mention the subject of the power, if it is clear that the testator
intended to include that property in making his dispositions
{Hunloke v. Gell, 1 11. & M. 515).
General words of appointment will be a sufficient reference to General -wonU
a limited power, if the donee have no other, and if the appointee to Execute
be an object of the power. In Re Teape (16 Eq. 412), a testator, li°^ted power,
having power to appoint to his wife the income of a sum of
stock, directed payment of his debts and gave all the residue of
his projierty of which he might be possessed or be entitled to
dispose to his wife absolutely. lie had no other power. This
was held a sufficient reference to the power, although the gift
was absolute, and the power authorized a life interest only.
In Bailei/ v. Lloijd (5 Euss. 330), testator having a special
power to appoint among his chilcben, by his will " by virtue of
all and every power and powers, authority and authorities,
enabling " him thereto gave and devised all his estate real and
personal. It was held that the reference to the power was
sufficient evidence of his intention to exercise it, notwithstanding
that the trusts of the will exceeded the power.
In Banks v. Banks (17 B. 352), testator, liaving power to
184 A CONCISE TREATISE ON POWERS.
appoint real estate among his children, devised all the real
estates of or to which he was seised or entitled or of which he
had power to dispose or to appoint upon trust for his children
and for other uses exceeding- his authority. It was held,
following the last-mentioned case, that this was a good exercise ;
(and see Gaimford v. Dunn, 17 Eq. 405 ; iZb/;e v. Hope, 5
Giff. 13).
Blending of The authorities are not altogether consistent on the question
fund with a whether the fact that a fund subject to a limited power is
\vhich'debts°^ appointed as part of a residue, subject to the payment of debts,
are to be paid. &c., and then in trust for the objects of the power, is or is not
sufficient indication of intention not to execute the power. In
CIofjdoiDi V. Walcott (13 Sim. 523), a testatrix, with a power of
appointment among her children over stock, by her will in 1840,
" by virtue of every power enabling her in that behalf,"
appointed all the property of or to which she was then or at
the time of her death might be possessed or entitled or have
power to dispose" to A. and B. on trust, after payment of her
debts and funeral and testamentary expenses, to invest the
residue for the benefit of her children. It was held that she
could not have intended to exercise the limited power, because
the only appointment contained in the will was of a residue
after payment of debts and funeral expenses, to the payment of
which the fund in question could not be subjected ; and there
were besides directions for investment which were inapplicable
to the trust fund.
In Re Cotton (40 Ch. D. 41), North, J., came to a similar
conclusion. In that case, testatrix had the usual power of
appointing among children property settled on her marriage ;
and in default of appointment the children took vested interests
at twenty-one or maniage. By her will the testatrix gave all
her real and personal estate and all other the real estate over
which she should at her death have a power of disposition to
her trustees on trusts for conversion and sale, and after payment
of debts to apply so much of the income as the trustees should
think fit for the benefit of the testatrix's only child during
minority, and on such child attaining twenty-one for her for
REQUISITES FOR EXECUTION. 185
life, with remainder to her children. The judge appears to
have been influenced by the inappropriate nature of the trusts
declared; (and see Re Porter, Porter v. ])<■ Qxetftrille, 45 Cli. D.
17J)).
On the other hand, in Fcrrier v. J((i/ (10 Eq. 550), the facts
wore similar to those in Cloy-stoKii v. Walcott ; and V.-C. Malins
held that the limited power was well executed, saying, that by
the rule reddendo nincjula situjulis, it might well be supposed that
the testatrix meant her debts to come out of that propcrt}' wliich
was her own, and the rest to pass to those who were the objects
of the special power.
In CoH-x V. Fader (1 J. & H. 30), V.-C. Wood came to a
similar conclusion ; but Clogntoun v. Walcott was not cited.
In Re Teape (16 Eq. 442), L. C. Selborne, sitting for the
Master of the Eolls, followed Ferrier v. Jaij.
And in Thornton v. Thornton (20 Eq. 599), Malins, Y.-C,
carried the doctrine of reddendo .singula .si/zgati-s a step further,
and read a gift of all property of which the testator had a
disposing power to his wife for life, with remainder to her
children, as an execution (i.) of a power of appointment among
children of property in which his wife had a prior life interest ;
and (ii.) of a power to appoint a life interest to his wife over a
fund held in trust for his children ; (see, too, F/liott v. Elliott,
15 Sim. 321 ; Pidgeli/ v. Pidgely, 1 Coll. 250 ; Re Harris, 20
W. R. 742).
In Re Swinburne (27 Ch. D. 696), testatrix, having power to
appoint among a definite class, devised, appointed, and be-
queathed all the real and personal estate of which she might be
seised or possessed at the time of her death, or over which she
might have any testamentary power, to trustees upon trust to
sell and convert, and to hold the proceeds, after payment of
costs, debts, funeral expenses, and certain legacies, as to two-
fourths for persons who were objects of the power, and as to the
other two-fourths, for persons not objects of the power. Pear-
son, J., held that as to one moiety of the settled property, the
power was well exercised; (and see Price v. Price, 46 L. T.
228).
186
A CONCISE TREATISE ON POWERS.
Reference to
a "beneficial
power of ap-
pointment."'
"Wrong refer-
ence to power
or its subject.
Whether a general reference to a " hotcficial power of appoint-
ment " is sufficient to execute a special power is doubtful. In
Ames V. Cadogan (12 Ch. D. 868), a testator had power to
appoint personal estate among children, and by his will gave all
the real and personal estate of or to whicli he miglit be seised
or entitled, or over which he might have " any beneficial power
of disposition," to trustees upon trust for sale and conversion,
and out of tlie proceeds to pay his funeral and testamentary
expenses, debts, and legacies, and also a mortgage debt on a
certain estate, and as to the residue in trust for objects of the
power. Fry, J., laid considerable stress on the use of the word
henefic'ial, as evidencing an intention not to exercise the special
power, and held that the will did not execute the power. On
the other hand, in Von £rockdorf\. Malcolm (30 Ch. D. 172),
the testator, having a special power, by his will gave all the real
and personal estate and effects whatsoever and wheresoever,
whether in possession, reversion, remainder, or expectancy, over
which at the time of his death he should have " any beneficial
disposing power," to trustees upon trust for sale, &c., and then
for persons some of whom were, and some of whom were not,
objects of the power. Pearson, J., held that the power was well
exercised by the will so far as regarded the appointees who were
objects of the power.
Even a "^^Tong reference to the power or the nature of the
property will not prevent the instrument from operating as a
good execution if the intention to exercise the power is other-
wise clear. Thus, in Be Eardley-Wilmot (29 B. 644), the
testator, having a power under a settlement made in 1839 to
appoint portions to younger cliildren, by his will recited that he
had such a power under a settlement made in 1819, and in pur-
suance thereof appointed. He had, in fact, no such power
under the earlier settlement ; but it was held that, notwith-
standing the wrong reference, the will was a good exercise of
his true power. In Fhfchcr v. FletcJier [7 L. R. Ir. 40), the
testator, having a power only to appoint certain leasehold
premises in J/. Street, and having no other property in the
street, gave " my estate and interest in the houses and premises
REQUISITES FOR EXECUTION. 187
in M. Street, limited to me, my executors and administrators,
on the death of " X. Tliis Avas lield to be a good execution.
A reference to all powers in general terras has been held not Reference to
to execute a special power of a peculiar nature, when the direc- general terms,
tions with reference to the appointed property were not consistent
with the nature of the property subject to the power. In Bemnisli
V. Beamish (4 I. R. Eq. 120), A. was partner in a firm, the
partnership deed of which provided that it should be lawful for
each partner to bequeath his share to any one legitimate male
descendant of B. ; and that if such descendant should at the
death of the partner be of age, he should have power to elect
wliother he would become a partner or have the value of the
share paid him by the other partners. If he was a minor, the
executors of the deceased partner were to elect for him, and the
minor was to have a further power of election -sAithin six months
after attaining twenty-one. A. made his will, by which he in
no way referred to the partnership, and thereby devised, be-
queathed , and in pursuance of every power enabling him , appointed
the residue of his property to his son, an object of the power, if,
and not unless, he should attain twenty-one ; if he should die
under that age, then he devised, bequeathed, and appointed the
same to persons not objects of tlie power. A. had no other
power. The son was a minor at the date of A.'s death, and A.'s
executors elected that the son should become a partner. The
Court held that it was a question of intention, and not to be
dealt with as an execution of a power. The power of nomination
was not exercised; only the money value of the share was intended
to pass, and therefore the executors could not elect.
It has been held by the House of Lords that a will, whieli Reference to
purported to be made in execution of all powers, in fact executed EatorTias"
two only out of three which the testatrix possessed {Sairard v. ^°^^ '^^'''^"
Macdonnell, 2 II. L. C. 88. But Lord St. Leonards doubts the
correctness of this decision : see Sug. Prop. H. of L. 502, 508 ;
Pow. 295).
But although a recital and formal execution of one power by
a testator who has several is evidence of an intention to execute
such one power only {Attorney-General v. Viyor, 8 Ves. 2bQ),
188 A CONCISE TREATISE ON POWERS.
there may "be other indicia besides mere general words, which will
show that the other powers were in fact intended to be executed.
In Trollope v. Linton (1 S. & S. 477), by articles made pre-
viously to the maiTiage of A. and B. his wife, an infant, A. had
power to appoint B.'s real and leasehold estates among the chil-
dren of the marriage. By other articles of the same date, his
own real estates were settled to the use of himself for life, with
remainder (subject to a jointure for the wife) to the use of his
fii"st and other sons in tail : and in default of such issue to such
uses as A. should appoint. There were several children. A.,
by his will, recited the articles for the settlement of his own
estate and confirmed them, and recited the power of appoint-
ment contained in them, and proceeded to devise to his wife part
of the property comprised in her articles ; and then, in exercise
of the recited power and of all other powers, appointed his own
real estates and all other real estates over which he had a power
of appointment to trustees on certain trusts. The will made no
mention of the articles for the settlement of B.'s estate, but con-
tained a direction that all persons claiming under his will should
be bound by the doctrine of election to give effect to the dis-
positions thereof. The Vice-Chancellor held that the circum-
stance of the testator having recited his power of appointment
over his own estate in Juec verba, and yet made a disposition
inconsistent with that power, and the expression that all persons
claiming under his will should be bound by election to give
effect thereto, showed that he intended to execute the power
reserved to him over his wife's estates ; (and see Sug. Pow.
293, 295).
In MaiDtaelly. Maunsc/l (19 W. E. 1003), the testatrix, having
a special power over two funds, recited the power over one of
them, and appointed that fund. She then devised all her real
estate upon trust for conversion and gave and bequeathed, "and
also in exercise of all powers and authorities " vested in her
appointed all her personal estate upon trust for persons some of
whom only were objects of the power. It was held to be a good
exercise of the power over both funds. In Saunders v. Garden
(27 L. R. Ir. 43), A. by his will gave B. his wife a power of
REQUISITES FOR EXECUTION. 189
appointment over a sum of Bank of Ireland Stock and 1,000/.
secured by mortgage, among the children of her two brothers
living at her decease (except such child as should inherit the F.
estate). By a codicil A. recalled this exception. B. by her will,
after reciting that she was possessed of Bank of Ireland Stock
and otlier property, but without referring to the power, bequeathed
all her said property to her executors upon trust, after payment
of debts and funeral and testamentary expenses, for certain
objects of tlie power, and stated that she expressly excluded
her nephew who would be entitled to the F. estate. In a sub-
sequent part of her will B. recited the power given her by A.'s
will to dispose of the mortgage debt, but made no reference to
the codicil which removed the exception of the son who should
inherit tlie F. estate, and she appointed the debt equally between
the children of her two brothers living at her death, excluding
the excepted son. B. had no Bank of Ireland Stock either when
she made her will or at her death. It was held that the will
operated as a good appointment of the stock, and that the in-
accurate reference to the terms of the power by omitting the
change made by the codicil did not vitiate the appointment of
the mortgage debt.
If a testator show that he had the distinction between pro- if distinction
perty and power clearly before his mind, a gift in general terms ^o^ert^ and
will not operate as an execution of such powers as are mentioned power present
at the commencement of sect. 25. Thus, in Wildhore v. Gregory mind.
(12 Eq. 482), y.-C. Bacon said that a testator cannot be con-
sidered, by using the words " my property," to have intended
to deal with property over which he had a limited power of
appointment, when there was property of his o^^^l, to whieli the
words, giving full effect to them according to the terms of the
will (exclusively of the instrument which created the power),
would apply.
But if there is a reference to the power, and tlie will purports
to be made in pursuance of the power, it is not necessary to
describe the property, but the expression " my personal estate "
is sufficient. If a testator, possessing a power, say, " by virtue
of a power I make my will," and then say, " I give all my
190
A CONCISE TREATISE ON POWERS.
Between
general and
particular
jjower.
money," this would be a sufficient execution {Ilarvcij v. St race//,
1 Drew. 113 ; and see Bailey v. Lloyd, 5 Euss. 330 ; Reid v.
Reid, 25 B. 469 ; Maunsell v. Maunsell, 19 W. R. 1003).
In Davies v. Fisher (5 B. 201), a widow made her will, and
thereby, after reciting her husband's will making her residuary
legatee and a codicil thereto by which the property was directed
to go over if she did not dispose of it, and stating her intention
to dispose of all her husband's property and her own, she ap-
pointed executors, gave pecuniary legacies and annuities, directed
payment of her debts, and then as to all the residue of her per-
sonal estate disposed thereof. It was held that the recitals
shewed her intention to include her husband's estate, over which
she had a power only, in her own property, and that the will
therefore operated as a good execution ; (and see Re Comber^
14 W. E. 172 ; Ilumphenj v. Uumphery, 36 L. T. 91).
On the other hand, in Cooke v. Cunlife (17 Q. B. 245), the
testator, having a power to appoint the uses of a settled estate
and of a term of 500 years, and also being possessed of an estate
of his own in fee, gave " all the residue of my personal estate
and all my real estate over which I have any disposing power."
It was held that there was no sufficient reference to the power
or to the property to render this an execution of the power.
In Fvaiis V. Emm (23 B. 1), a feme coverte with a power of
appointment among her children, by her will in 1848, which
did not refer to the power or the property subject to it, pur-
ported to dispose of " the property and income I am now or
may become possessed of." She then gave " her property " to
her husband and children. She had property of her own to
which the will might refer. It was held that she had not
executed her power.
If a testator show that he has the distinction between a
general and a particular power clearly before his mind, words
applicable to the general power will not execute the particular
power.
In Butler v. Gray (5 Ch. 26), the testatrix by her will in 1845
expressed her intention to appoint among her childi-en a fund,
which by virtue of her father's will she had power to appoint
REQUISITES FOR EXECUTION. 191
among them. She then proceeded to appoint a portion only to
tliem ; and, after directing payment of her debts and legacies,
gave to one of her children " the residue of the personal estate
which belonged to her, or which she had any general power to
dispose of." It was held that, by this residuary bequest, the
testatrix intended to deal only with what was lier own property,
and not with that over which she knew she had only a limited
power of appointment.
The mere use of the word " appoint " has been held insuffi-
cient to show an intention to execute a limited power, at any
rate, where the donee of a limited power had also a general
power {lie liichardson, 17 L. E. Jr. 4oG).
27. All that is requisite is an intention on tlie part of the What ia a
donee tliat the fund sliall pass to some one who is an object of intention,
the power. When that intent appears, and the only means
which the person so intending possesses of giving effect to it is
by an exercise of a power of which he is donee, then — though
his mind is a mere blank as regards the power, though he has
forgotten its existence (see lie Porter, 45 Ch. D. 179), or never
knew he had it — the law will presume that he must have meant
to make use of the only means within his reach of achieving his
expressed purpose. This is subject to one exception, which is
theoretical rather than practical. When what we find is not
merely the absence of a positive intention to exercise the power,
but the demonstrated presence of a positive intention not to
exercise it, then it will be held not to have been exercised, even
though the intention to pass the subject is expressed {per L. J.
Christian in Jlinchin v. Minchin, 5 I. E. Eq. 273 ; and see
Griffith-Boscaicen v. ^eott, 2G Ch. D. 85cS ; Prohy v. Laitdor, 28
B. 504).
The principle is, that the donee of the power having shown
an intention that tlie property subject to the power shall pass,
the mere expression that it is to pass in a particular manner
shall not control the general intention that it shall pass at all
events.
In Ward v. Hartpok (3 BU. 470), tenant for life had power
to grant leases for lives, renewable for ever, at the best rent
192 A CONCISE TREATISE ON POWERS.
obtainable, but without fine ; and another power to raise money
for any pui-pose and charge it on the estate. He granted a
certain lease for lives renewable for ever at a rent, and at the
same time took 300/. from the lessee, for which he gave a separate
receipt. It was held that the receipt of 300/. was good under
the second power, whether or not it was originally taken as a
fine.
But there must be a clear intention that the property should
■p[i.ss—i.e., an intention to do an act, which can only be done by
the execution of the power. When the intention to do such act
is clear, and it cannot be done except by executing the power
(by means of any estate which the party possesses or otherwise),
the law will consider such an act as an execution of the power
{lie Morgan, 7 Ir. Ch. E. 18).
In Robinson v. Sykes (23 Bea. 40), the testator, having under
his marriage settlement a non-exclusive power to appoint certain
funds among his children, made a codicil, and thereby, after
reciting that the funds had been invested in an estate, and that
he had contributed 300/. to make up the purchase-money, he
appointed that the sum of 300/., or such other sum as he was
empowered to appoint, should be raised by the trustees of the
settlement and paid to one of the objects of the power. The
M. R. held that the intention was either to appoint the sum
contributed by him — which in fact was not 300/., but a mere
trifle — or to appoint the whole trust fund, in which case it was
bad as being exclusive.
In Broohnan v. Hales (2 V. & B. 45), a widow was tenant for
life of (amongst other property) renewable leaseholds, with a
general power of appointment by deed or will, in default of
which they were to go to her husband's brother. During her
life she several times, in her own name and at her own expense,
obtained renewals of the lease ; and the question was raised after
her death whether these renewals operated as an appointment in
her own favour. It was held that they did not so operate, but
enured to the benefit of the remainderman.
Clear inten- 28. And there must be in all cases a clear intention to deal
ion requibi . jgg^||y. yf{\)^ \)^q fund. The jurisdiction of the Court is to
CLEAR INTENTION REQUISITE. 193
supply defects occasioned by mistake or inadvertence, not to
supply omissions intentionally made.
In Garth v. Tounsend (7 Eq. 220), the donee of a power of
appointment among her children by deed or will or A\Titing
purporting to bo or in tlie nature of her will, left a signed but
unattested memorandum in an envelope addressed to her son.
" For my son and daughters. Not having made a will, I leave
this memorandum, and hope my children will bo guided by it,
though it is not a legal document The (funds) I wish divided
as follows (amongst her children) . This paper contains my last
wishes and blessings upon my dear children, and thanks for
their love to me." This memorandum was held to show no
intention to execute the power, and consequently the Court
could not remedy any defects in execution so as to give it
validity as an appointment.
In Fennefathev v, Penuefather (7 I. R. Eq. 300), lands were
vested in trustees for a term of years, on trust to raise 4,000/.
for the children of the marriage, payable as A., and in default
of appointment by him, as his wife should appoint by deed or
will, and in default of appointment by either, among the
children equally. A., by will, directed all his lands, including
those comprised in the term, to be sold, and out of the produce
gave portions to his five sons, and 1,000/. each to tlu-ee of his
daughters. By codicil he gave 1,000/. each to his two remaining
daughters, and added:— "I hereby direct that no part of the
produce of my lands shall be paid to any of my sons until the
said sums of 1,000/. each shall have been paid to each of my said
five daughters, or 5,000/. among the survivors of them, over and
ahoce and in addition to the equal diatribiitire share of the 4,000/.
fnentio)icd in tny marriat/e .sett/enieid, /rhieh each of them are
entitled to." The Coiu't of Appeal, reversing the judgment of
the Yice- Chancellor, held the power not executed ; the W(irds
were not unmeaning, for they excluded any question of satis-
faction or election.
The Lord Chancellor said (p. 310) : — " It is important to
observe that in all the cases in which intention to execute the
F. n
194
A CONCISE TKEATISE UN POWERS.
Parallil case
of leg^acv.
power has been presumed in the absence of specific reference to
it, the intention on the part of the donee to pass the property or
do an act with reference to it, operative under the instrument
which he signs, has been ek\arly indicated. He must intend
himself to make the gift which is to be validated by implication.
In Adams v. Adam-s (1 Ila. 540), the Yice-Ohancellor says :—
" Where a testator in one part of his will has recited that he has
given a legacy to a certain person, but it has not appeared that
any such legacy was given, the Court has taken the recital as
conclusive evidence of an intention to give by the will, and
fastening upon it, has given to the erroneous recital the effect
of an actual gift. Where, however, the testator says that only
which amounts to a declaration that he supposes the party who
is referred to has an interest independent of the will, such a
recital is no evidence of an intention to give by the will, and
cannot be treated as a gift by implication" (and see Nugent
V. Nugent, 8 I. E. Eq. 78). The distinction between the two
cases is obvious. In the former, the erroneous recital is evidence
of an intention to give by the will, inadvertently not expressed.
In the latter, as is observed by Mr. Jarman (vol. i. p. 525,
4th ed.), "such recitals do not in general amount to a devise;
for as the testator evidently conceives that the person referred to
possesses a title independent of his own, he does not intend to
make an actual disposition in favour of such person " (and cf.
Ilally. Lietch, 9 Eq. 376).
29. From the principles stated in the last section, the Lord
Chancellor of Ireland (Lord O'Hagan) deduces a rule as to
powers, which may be thus stated : —
Distinction
between re-
citals showing
that appointor
thoufi^ht he
had appoint-
ed ; and that
he thoufrlit
appointee was
entitled.
If tlie donee of a limited power of apj^ointment
erroucously recites that ho has thereby appointed,
this recital is evidence of an intention to execute
the })ower.
If, however, he recites that an object of the
power is entitled to the property subject to the
power, this is evidence that he supposes that the
EVIDENCE OF INTENTION TO EXECUTE. 195
person referred to possesses an independent title,
and negatives any intention to exercise the power.
It has accordingly heon lield that where a power of appoint-
ment was given to A. and B. jointly and to the survivor of them,
and A. purported to exercise the power in favour of C, an object,
and died before B., a recital in C.'s marriage settlement, to
which B. was a party, that C. was entitled to part of the fund
under A.'s appointment, did not amount to an appointment by
B., although he Avas then sole donee of the power, and the
settlement was an apt instrument for the appointment, and
although the husband of C. made a settlement in consideration
of the supposed validity of the appointment {Jliiichiny. Minchin,
5 I. II. Eq. 178, 258 ; but see;;o.s^ s. 32).
In Be Wahh (1 L. R. Ir. 320), A. had a testamentary power
of appointing policies among his five children ; and, subject
thereto, B. and C. and the survivor of them had a power of
appointing to the same children by deed. On the marriage of
one of the childi-en, A. by deed purported to appoint one of the
policies to the intended husband ; and by his will he recited the
marriage of this child, and that she had been already provided
for. This was held to be insufficient.
In V Estrange v. V Estrange (25 L. R. Ir. 399), the T. estate
was devised to A. for life, and after A.'s death to his issue as A.
should appoint by deed or -vNdU, and in default of appointment
to such issue equally. A. by his will, after charging an annuity
upon the T. estate in favour of his wife (which it was held he
had no power to do), proceeded : "As my eldest son Daniel will
inherit my estate of T. under his grandfather's will, I consider
him provided for," and made no further reference to the T.
estate. It was held that this did not amount to an exercise of
the power in favom' of Daniel ; and the distinction was pointed
out between recitals in deeds for value and in wills.
If, however, the donee of the power has himself done some act If the invalid
which in itself would not be sufficient to operate as an execution be made by
of the power, and then by an instrument capable of executing iiJ^g^j]^^®
the power, recites or states that the donee is thereunder entitled,
o2
196
A CONCISE TREATISE ON POWERS.
Powers are
not executed
contrary to
express
intention.
this ■vnll amount to an execution of the power. In Lees v. Lees
(5 I. E. Eq. 549), funds were settled by marriage articles on
trust for A. during the joint lives of himself and B., ^^ath an
ultimate trust to the use and behoof of the issue of the intended
marriage if more than one, as A. should appoint. A. transferred
part of the funds into the names of himself, B., and a child ;
and by his will, after referring to " all sums in his lifetime ad-
vanced to or secured for " his children, directed conversion and
division of his whole property on B.'s death, the sums advanced
to be brought into hotchpot ; he then gave a list of sums so
advanced, and in it included the part of the trust fund trans-
ferred into the names of himself, B., and their child : this was
held sufficient (cf. Morgan v. Gronoic, 16 Eq. 1).
30. As a necessary consequence of the principles above stated,
a power will not be held to be executed, contrary to the ex-
pressed intention of the donee, although it be clear that he acted
under a misapprehension in making use of such expression
(see ante, s. 27). In Carver v. Richards (27 B. 496), the
Master of the Eolls, after saying that it is the intention which
governs in these cases, proceeds thus : "I admit that this leads
to very nice distinctions, and that it may very often be extremely
difficult to distinguish or define the limits between an intention
not to execute a power and the case of no knowledge of the
existence of the power, in which case, strictly speaking, there is
no intention to execute it, whilst in the former there is an inten-
tion not to execute it. The facts from which such intention and
absence of intention are to be inferred may very often run near
to each other, and possibly lead in some cases to very nice and
perhaps technical distinctions ; but the principle appears to me
to be clearly established by the cases."
In Langsloio v. Langsloio (21 B. 552), funds were vested in
trustees in trust after the death of A. and B. for the children,
grandchildren, or other issue of A. and B. as they or the survivor
should appoint, and in default, for all the children equally ; the
hotchpot clause was applicable as between children only. An
appointment by deed was made to one son, and another son
died, leaving a son. A. survived B., and by will, which recited
SUFFICIENT WORDS NECESSARY. 197
that the son would be obliged under the hotchpot clause to
bring in the share appointed to him, proceeded : " and then as
I make no further appointment, the whole settled fund will be
equally divided between him and my little grandson." This
was held to be no appointment. It might be said that if he had
understood what the effect would be, he would have made an
appointment ; but this would admit that there was no appoint-
ment.
ol. We have seen (s. 27) that if the intention to pass the What is suffi-
property is clear, the power by which alone it can pass will be an execution
held to have been executed, although another is referred to, but olgr" te^althe
the rule is that— execution of
another.
In order to enable the Court to say that one
power has been executed when anotlier purports
to have been, there must be sufiicicnt words to
amount to an execution of the first power.
If, therefore, the words be referable to a non-existing power
and no other, such an appointment would fail altogether ; but if
there are general words of appointment sufficient to execute
the valid power, in addition to the words executing the invalid
power, as a general rule the intention to pass the property will
prevail, and the mere mistaken supposition of the appointor
that the property would pass by virtue of a power other than
that by which he expresses his intention to pass it, will not be
held to exclude the possibility of its passing under the general
words, ut ri's pcreaf.
In Brnce v. Bruce (11 Eq. 371), A. had power to appoint real
estate among the children of the marriage, to whom it was
limited in default of appointment. By an invalid assurance A.
purported to destroy this power and confer on herself a general
power. By her will, without reference to her special power,
but in exercise of her supposed general power and " every other
power enabling her in that behalf," she appointed the lands to
her children and others. This was held a good execution of the
198 A CONCISE TREATISE ON POWERS.
special power so far as it was made in favour of the objects
thereof. The Master of the Eolls said that he considered it to
he a rule applicable to the execution of powers, that a power
wall not be deemed to be executed contrary to the intention of
the donee of the power, when the donee supposes that a different
power from that assumed to be executed is vested in him.
But there is no doubt that the Court will, in order to give
effect to the intention of the donee of the power for that purpose,
aid the execution of a power not specially referred to, though such
power was not present to the mind of the donee at the time of
the execution.
In Re EanUcy-Wilmot (29 B. 644), the testator, having a
power under a settlement of 1839 to appoint portions to younger
children, by his will recited that he had such a power under a
settlement made in 1819, which in fact contained no such power,
and in pursuance of the recited power appointed portions. It
was held that this operated as a good exercise of the power
in the later settlement, notwithstanding the wrong reference ;
(and see Re Boyd, 63 L. T. 92 ; Re Sicinbunie, 27 Ch. D. 696;
Saunders v. Carden, 27 L. R. Ir. 43).
If, however, the execution pui'ported to be of an entirely
different power, e.g., if it were joint instead of single, and
applied to a term of years created for a different purpose, or
operated on a fund of different quantity, which had a different
destination in default of appointment, it would be otherwise
{Hamilton v. Royse, 2" Sch. & L. 315, 331). And if a man has
both an express and an implied power, and he mentions and
purports to execute the former, this will not be an execution of
the latter {A.- G. v. Vujor, 8 Ves. 256) . But an accrued share may
pass under general words of appointment, if wide enough {Re
Benton, Bannennrtn v. Toosey, 63 L. T. 105). And although an
appointment may be effectual as a disposition of property while
still in reversion, it may well be that it is construed as taking
effect only when it falls into possession, so as to prevent the
application of the doctrine of Re Lord Chesterfield (24 Ch. D.
643) ; see Re Floxcer, 63 L. T. 201.
PURCHASERS AND V0LUNT1:ERS.
1U\)
32. There is a distinction between powers executed in favour Distinction
between
of volunteers and those executed in favour of purchasers; though executions in
it may be doubted whether, on questions of constniction, the yii^Jeersand
Court has any bias. Tlio rule is that— "* purciiu.er...
The onus of proving the intention to execute a
2:)owcr voluntarily is on tlic volunteer; l)ut if the
person alleginji; the execution is a purchaser, the
presumption is in his favour.
In BMr v. Marne// (2 B. & B. 38, n. ; S. 6'., 4 Dow, 248,
sub nom., Marnell v. Blahe), Lord Eedesdalo says: "Where a
person voluntarily executes an instrument which may have
effect under a jiower to charge property, he must demonstrate
that he meant to execute the power : but where a person acts
for valuable consideration, he is understood in equity to engage
with the person whom he dealt with to make the instrument as
effectual as he has power to make it; and whenever that is
done, according to all the cases (upon which I see nothing to
raise a doubt), it shall have effect so far as the person who is to
execute it has power to give it effect. But where the nature of
the instrument is not according to the power, but demonstrates
an intent to execute it, it shall have the operation of charging
in the form in which the power allows it to charge.
Thus, in Wihon v. Piggott (2 Yes. jun. 351), the donee of a
power of appointment among children was a party to his daughter's
marriage settlement, which recited that she was entitled to
1000/., part of the fund subject to the power, and to another
sum, "both of which would belong to her husband," and the
husband at the same time made a provision for the wife. Tliis
was held to be an appointment to her, the husband being a
purchaser. Lord Alvanley said: "In this settlement he declares
her entitled to this sum, to which she could only bo entitled by
his appointment, and the husband makes a settlement in con-
sideration of it. He could have compelled the father to execute
a regular appointment ; it is a covenant by the fatlier." But
where the instrument containing the recital is an apt one for
the execution of the power, there seems no reason Avhy such
200 A CONCISE TREATISE ON POWEES.
recital should not itself operate as an appointment without more
(see Sug. Pow. 202).
However, in Jdinchin v. Minchin (5 I. E. Eq. 178, 258), A.
and B. and the siu'vivor of them had a power of appointing
1,000/. among their children; B. had also power to appoint
4,000/. among her childi-en. B., by her will in 1842, recited
both powers, and appointed 500/. to each of her eight daughters
out of the two sums of 4,000/. and 1,000/. After B.'s death a
settlement was made on the marriage of one of her daughters,
to which A. was a party. It recited the instruments creating
the two powers, accurately distinguishing them, and that B.
exercised both those powers by her will, and that C. was there-
under entitled to 500/., that A. had agreed to settle a further
sum in addition to and to be settled with the 500/., and C.
thereby assigned the said 500/. to trustees. B.'s will was not a
valid execution of the powers, and was set aside by the Coiu't.
The Lord Chancellor O'Hagan, affirming the Master of the
Rolls, held that the recital in the settlement did not operate as
an appointment by tlie father. The Lord Chancellor said that
the purpose to convey the 500/. was the daughter's ; the act of
conveying it was exclusively hers. The father could not have
intended to convey that over which he believed he had no
control : he did not take any part in the act of conveying it.
He was a party direrso uduitu, and there seemed to him no valid
ground for imputing to the father a purpose which undoubtedly
in fact was foreign to his mind, because of an act which was his
daughter's only, and not his at all.
The L. J. Christian dissented (see his judgment, p. 269).
He thought that all the statements in the settlement regarding
the daughter's fortune, whether by way of recitals of facts or
assertions of right, were to bo imputed to the father, in the
sense of his having participated in the rq.aking of them. He
was an executing party to the deed ; he was identified with the
daughter, not only in the formal framework of it, in which they
made but one party, but in symj)athy, in purpose, and in
interest. He, even more than she herself, was to be looked to
for the truth and honour of the representations which were
PURCHASERS AND VOLUNTEERS. 201
made regarding her fortune to the man wlio was about to marry
her. It is of course clear tliat there was ample consideration.
lie further thought that the settlement displayed two inten-
tions. There was, first, the general and leading intent, which
was one of substance and of merits, viz., that the daughter
should have out of tlie two funds 500/. as part of her fortune
and as part of the consideration for the jointure which was
being settled on her ; there was, secondly, a particular and
special intent or supposition, which was one of mere form and
conveyancing, viz., that the particular instrument through whicli
she derived that right was the will of the mother, as an
exercise of the power. But that was a mistake ; the will had
no such effect, and gave her no right at all. But the father
possessed that very same power, an exercise of which was all
that was needed for instantly effectuating the first and general
and leading intent, and which exercise lay clearly within the
scope and function of the settlement.
The Lord Justice's reasoning seems more consistent with
principle and authority than the actual decision. It is true
that the father expressed no intention to appoint ; but the
same was the case in Wilson v. Pi(j(jott ; (and see Lesfmnge v.
Lest range, 25 L. K. Ir. 399). The only distinction between
the two cases would appear to be that in IFi/sou v. Piggoti,
the father could not have supposed that his daughter had any
title at all, unless by his appointment ; in Minchin v. Minchin,
the father thought his daughter had a complete title inde-
pendently of him.
But there will be no presumption in favour of an intention to
appoint, if the instrument be purely voluntary, as, e.g., a will.
In such a case the onus of proving the intention lies on the
person claiming to be the appointee {Pennefaf/wr v. Pcnnefathci;
7 I. 11. Eq. 317). See the case stated a)ite, sect. 28.
33. A power may be well exercised notwithstanding Fund in-
a previous invalid execution ; but if such in- appoS/
validity is due to fraud, the validity of the Lpjiiited"
202 A CONCISE TREATISE ON POWERS.
second execution depends on proof that such
fraud no longer exists.
" Supposing a power had been defectively executed, and the
parties afterwards execute it properly, there is no doubt but
tlio law would look upon the first execution as null and void,
and that it might therefore be exercised over again." {Per
Lord Hardwicke in Henri/ v. Herreij, 1 Atk. 567.)
In Edicarih v. Slater (Hardres, 410), lands were settled to the
use of A. for life, with a proviso that if he should make a
jointm^e to his wife, and grant a lease for thirty-one years to
commence after his death for raising 3,000/. for portions, the
lands should be held to those uses ; and, after divers remainders
over in tail, the fee was limited to A. He afterwards made a
* jointiu-e pursuant to the power, and then bargained and sold
the lands in fee upon trust to raise portions. The bargainees
subsequently reconveyed to A. in fee by feoffment ; and he then
made a lease for thirty-one years for raising 3,000/. for portions.
It was held that the lease was a good execution of the power,
although the attempt to execute it by the bargain and sale was
bad.
In Ti2)2)et v. Eyres (5 Mod. 457; 2 Vent. 113), there was a
submission to the award of A. to be made before the 4th of
April, or else to the umpirage of such an one as A. should
choose, to be made on or before the 16th of April. A. made no
award, but on the 1st of April chose and nominated B. to be
umpire ; and on B.'s refusal he nominated C, who accepted and
awarded. In an action on the award it was held that A.'s
authority was not exhausted by the mere nomination of B.,
independently of his acceptance, and that his subsequent
appointment of C. was good. Per Ventris, J. : " An authority
once w-ell executed cannot be transacted anew ; but where it is
not well executed it may be acted again. The naming is only
a commencement of the execution of the authority." Rokeby
and Powell, JJ., agreed; but Pollexfen, 0. J., differed.
In Hole V. EhcoU (4 M. & C. 187), husband and wife had a
joint power of appointment among children, with a power in
RE-EXECUTION OF INVALID APPOINTMENT. 203
default to the survivor. The liusband bocanio bankrupt, and
afterwards joined witli liis wife in appointing. After bis death
a bill was filed by a person elainiing under the bankruptcy, on
the ground that the joint appointment was bad. The surviving
wife then made a separate appointment in favour oi tin.' objects
of the joint ai^pointment. The joint appointment, being made
after the bankruptcy, was held to be void ; but the sole appoint-
ment of the widow was upheld.
In Wdi'f/ V. Ti/rrcll (25 B. 5G;J), the donee of a power of
appointment among a class appointed exclusively to some of
the class, and a bill was filed to set aside the appointment : the
appointor then appointed in a different manner, but declared
that such second appointment should be good only in case the
fii'st was set aside. The second was held good.
The rule is the same, if the invalidity is caused by the execu- Fund fraudu-
tion being a fraud on the power, subject to this qualification : — pointed
that the onus of showing that the second appointment is
untainted by the fraud that vitiated the first is on the ap-
pointees who claim under it. Theoretically, therefore, if there
were first a fraudulent appointment of ])axt of a fund, and then
a general appointment, before any steps had been taken to set
aside the former appointment, with words sufficient to carry the
fraudulently appointed fund, the latter may operate as an
effectual appointment. But in the case of fraudulent appoint-
ments, whether actually set aside by tlie Court or not, if the
second appointment is to the same person as the first, the
difficulty of sho"sving that the second appointment is free from
the fraud which vitiated the first is so great as to be almost
insuperable. And, " where an appointment has been set aside
by reason of what has taken place between the donee of a
power and an appointee, a second appointment by the same
donee to the same appointee cannot be sustained otherwise than
by clear proof on the part of tlio appointee tliat the second
appointment is perfectly free from the original taint which
attached to the first.'' And "the bm-deu of proof requisite to
support a second appointment in such a case rests on the
appointee." Ber Giffard, L. J., in Topluun v. Bnkc of Fortlund
204
A CONCISE TREATISE ON POWERS.
sufficient to
cover all the
estates.
(5 Ch. 40, 61, 62). In Hutchins v. Hutchim (10 I. E. Eq. 453),
this principle was held to be of universal application ; Chatterton,
V.-C, saying that the principle above stated by L. J. Giffard
" extends to all cases, whether the fraudulent appointment has
been set aside by the Coiu't, or revoked by the appointor."
Where execu- In Carver V, Richards (27 B. 488; 1 D. F. & J. 548), A., in
fOTfraud,\ut 1813, exercised her power of appointing among her children
Sintaentis certain estates, including L., by appointing to her eldest son
absolutely. This appointment was made on a bargain that the
estates should be settled subject to A.'s life estate, to the use
that her husband should receive a rent-charge for his life, and
subject thereto to the use of the children of the marriage as A.
and her husband should jointly appoint, or as A., if she survived,
should by deed or will appoint ; and the estates were so settled
accordingly. In 1820, a joint appointment was made among
the children, the L. estate being given to the eldest son; in 1826
slight variations of these appointments were made ; on each
occasion a power of revocation and new appointment was
reserved to them jointly, or to A. if she survived. In 1827 the
husband died. In 1829, the widow, by a deed, not noticing the
invalidity of the appointment of 1813, and expressed to be made
in exercise of the powers given her by the deeds of 1820 and
1826, or by the deeds recited in them, and of all other powers
vested in her, made some slight variations of the dispositions
of the deeds of 1820 and 1826, and subject thereto confirmed
them. The original power was held well executed by the
appointment of 1829. In this case there were apt words of
general appointment, but it is clear that the appointor thought
herself to be executing a totally different power from that
under which the estate was held to pass ; there were sufficient
words, however, to enable the Court to say that the valid power
was in each case executed.
But there may be cases in which appointments well made
under a power might be held bad, if inseparably intermixed with
a bad appointment. What is vicious may so far predominate
over what is good, or the vicious and the good may be so mixed
together, that the Court cannot give effect to the one and reject
RE-EXECUTION OF INVALID APPOINTMENT. 205
the other. In Carver \. JRicJianls^ the intention was to distribute
the property in tlie manner pointed out l)y tlie deed of 1S29,
and what was vicious in the mode of earrj'ing out tliat intention
was so far separable from the good, that the intention was held
to prevail (1 D. F. & J. 566; and see Birley v. Birlei/, 25 B.
299).
'34. It has been said that there must be some expression of an A power
intention to execute the original power, for that the Coui-t executed will
cannot hold that a power, which the donee thereof has once "xecut^'^if
purported, though ineffectually, to execute, is executed by a sub- ^here be no
sequent instrument, in the absence of all expression of any execute,
intention to execute.
In JacJxHon v. JachoN (Dru. 91), where a father had a power
of appointment among his children and exercised it by an
appointment to his son, which was vitiated by a bargain for his
own benefit, and subsequently inherited the estate as his son's
heir, and disposed of it by his will in 1821, L. C. Sugden said
that as all the circumstances of the case led him to believe that
the father must have considered the power as not in existence at
the date of his will, he was precluded from the possibility of
attributing to him any intention of then executing it. He says,
" It is clear upon the authorities, that if a man exercise a power
improperly so that his execution of it is void, and he subse-
quently discovers his error, he may then exercise the power in the
manner warranted by law. But in this case, there is this diffi-
culty, that the father never retracted : he never desired to impeach
the appointment, nor ever disclaimed it." It is to be observed
that the father merely devised his estate and interest : there were
no words purporting to execute any power. But Lord St.
Leonards' remarks would seem to imply that it was his opinion
that if a power be improperly executed, the execution must be
retracted before the original power can be validly executed. It
seems, however, from the cases above cited, that all that is
requisite is an expressed intention to pass the property, the
subject of the power, and apt words to execute the power.
In jUkham v. Barlrr (12 B. 499), a power of appointment Nor if the
among children was executed by a father on a bargain for his tfon be taiiited
206 A CONCISE TREATISE ON POWERS.
with the fraud own benefit ; he afterwards executed another appointment, re-
citing the pre^'ious one and his desire of appointing su.ch of the
premises as remained unappointed, and appointed all the funds
not comprised in the previous appointment, " and all other the
sum and sums of money, messuages, lands, tenements, and
trust estates whatsoever, comprised in or affected by the said
recited indenture of settlement over or upon which he had a
power of appointment or disposal." The Master of the Rolls
said that the second execution was tainted by the fraud of the
first, and was not valid and complete ; the father was em-
barrassed by what he had previously done, which he thought
and intended to be an execution of the power; he proceeded
on that footing, and although he had used words which would
have an operative effect if that power had never been previously
attempted to be exercised at all, yet his reference to the power
was clearly as if it had been previously executed.
And in Fanner v. Mart hi (2 Sim. 502), A. had a power to
appoint 10,000/. among his younger children. In 1794, he
appointed the whole sum to his two daughters, reserving a
power of revocation ; in ] 804, he appointed 5,000/. to the said
two daughters irrevocably ; in 1806, he appointed the other
5,000/. to Eleanor on a bargain, which made it corrupt ; in
1819, by deed reciting the appointment of 1806, he revoked
(with Eleanor's concurrence) the appointment of 2,500/. to her,
and appointed that sum to Ann, another object of the power,
but provided that nothing therein contained should render void
the appointment of 1806 to Eleanor. It was held that both
the appointments to Ann and to Eleanor were void, partly on the
ground that the whole appointment was so intermixed with that
of 1806 that it could not be sustained; and partly because it
was intended to be an execution of a power which the parties
supposed to exist, but which did not in fact exist.
Lord St. Leonards doubts the authority of this case (Pow.
355), and see Iriciii v. lior/ers, 12 Ir. Eq. II. 159. In Ilutcltins v.
HutchinH (10 I. R. Eq. 453), A. had power to appoint a per-
petual rent-charge among certain objects. In 1850, he ap-
pointed the bulk of the rent-charge to B., one of the objects,
RE-EXECUTION OF INVALID APPOINTMENT. 207
for life with remainder to liis cliilJron, reserving a power of
revocation. In 1cS;j8 he revoked the appointment of 1850, and
appointed a hirgo part to two of the chihlren of B., reserving
a power of revocation. In 1859 he entered into an agreement
with the objects of the power that he should revoke the appoint-
ment of 185S, anil ni;ike an irrevoeahl(3 appointment in tlieir
favour, and that they sliould benefit him as therein provided.
Being advised that this was bad, the parties abandoned the
agreement; but in 1800 A. revoked the deed of 1858, and
irrevocably appointed tho rent-charge among all the objects; and
sixteen days later an agreement was executed by A. and all the
objects that the latter should confer upon him all the benefits
provided for by the abandoned agreement. It was held that
all the appointments were null uud void as frauds upon tlio
power.
If the first appointment has been actually set aside by the When the first
Court, it is very difficult for the donee to made a valid re- has bee™set
appointment to the same person. In such a case, the burden ^^ide,
of proof requisite to suj)port the second appointment rests on
the appointee. The reasons which in the case of a dealing
between a solicitor and client throw the onus of proof on the
solicitor, between a trustee and a ccs.tui que trust on the trustee,
between a parent and child on the parent, and in the class of
cases to which Iluguciiiit v. Basclci/ (14 Ves. 273) belongs, on
the persons seeking to sustain the gift, applj' with equal force
as between the appointee in sucli a case and the persons en-
titled in default of appointment [Topham v. Dulw of Porthmdy
5 Ch. 40). In that case an appointment made to H., an object
of the power, was set aside as fraudulent, by reason of an ante-
cedent agreement between the appointor and appointee : the
appointor then appointed to II. again, and she and the ap-
pointor deposed that there was no agreement between them as
to the disposition of the fuutl ; but the appointment was set
aside. L. C. Hatherley said that he gave implicit credence to
the statements of the appointor and appointee : he also thought
that it would be difficult to hold that J 1. had i)laced herself in
such a position as to incapacitate herself under any circum-
208
A CONCISE TREATISE ON POWERS.
CoDfinnation
of void ap-
pointment by
re-appoint-
ment, when
events have
made it pos-
sible.
Execution
of powers of
revocation.
stances from accepting a gift of tlie whole fund : lie thought
that a valid appointment might have been made to her of the
fund, but the real point for consideration was, whether or not,
though now conscious of her strict right at law to dispose of the
fund, the pressure of a moral obligation not to appropriate more
than one-half of it to her own use, and to hold the other half
subject to the appointor's intentions and for his purposes did
not, at the date of the last appointment and still, weigh on her
mind with such force as to convert her into a mere passive in-
strument of the appointor's intentions, and whether such her
sense of moral obligation was not well known to the appointor ;
and if so, whether he had taken any step to discharge her from
it, and restore her to complete freedom of action ?
35. Although the mere expression of a desire to confirm an
invalid appointment will not establish it, yet if the appointor,
having made an appointment which was, at the time of making
it, invalid, afterwards does not merely express a desire to confirm
such appointment, but proceeds to do so by way of appointment,
then, if events have since happened which render such an ap-
pointment unobjectionable, it will be upheld.
In Morgan v. Gronoiv (16 Eq. 1), an ante-nuptial settlement
contained the usual power of appointment among children.
The husband, who survived, exercised it by appointing on such
trusts, to take effect after the marriage of his daughter E., as
she shoidd appoint, and in default for her for life, with remain-
der as she should appoint by will. E. was unmarried at the time,
and the appointment was therefore invalid. The donee of the
power, after E. had married, executed a deed which recited his
desire to confirm, and did actually confirm, the appointment.
This was held good : the deed showed on its face a desire to
confirm by an execution of the power : there was an intention
to confirm, coupled with an express declaration that such con-
firmation was made by virtue and in execution of the power.
o6. The same principles that apply to powers of appointment
apply equally to powers of revocation : if therefore a man has
power to revoke existing uses and limit new uses, and he after-
wards by will devises all his lands having no others than those
EXECUTION OF POWERS OF REVOCATION. 209
subject to the power of revocation, they will pass {Dcg v. De<j^ 2
P. "VV. 415). But an appointment expressed to be made in
exercise of every power enabling the appointor does not extend
to proi)erty which the appointor cannot appoint without the
exercise of a power of revocation, if there be othf-r property to
which the words of appointment can apply {Poxifrct v. Fcrr'tng,
5 D. M. & Gr. 775). The principles acted on in other eases
with respect to the exercise of powers apply to cases of this sort.
If a person has an interest in one subject and a power over
another, and uses general words of disposition only, those words
will not operate as an exercise of the power. It is otherwise
when he has no interest but only a power. The same principle
must apply to a case where a person has a power of aj)pointment
and also a power of revocation and new appointment. The
general words of appointment ought not to be held to be an
exercise of the power of revocation. If there was no power
except one of revocation and new appointment, it would be
different, and the general words would then be held to be an
exercise of the power {Ibid. ; see post, s. 38).
If the intention to revoke in all events be clear, it makes m Intention to
revoke in nil
difference that the a})pointees substituted in place of the original events,
appointees cannot take.
In Qiiiini V. Bntler (6 Eq. 225), a testator, having power to
charge real estate with 7,000/. to be distributed among his
younger children as he should direct (but not exclusively), and
in default of appointment among them equally, by will charged
the said real estate with the 7,000/. and directed that 4,000/.,
part thereof, should be paid to his younger son, and the remain-
ing 8,000/. to liis lliree daughters equally. He had no other
younger children. I3y a codicil he revoked the appointment or
charge of 7,000/. made by his will, and charged the same here-
ditaments with the payment of 7,000/. to the younger son alone.
The Master of the Rolls said, " The whole question dopends on
the intention of the testator. If a will is simply revoked in
order to make a gift in favour of another person, and you can
see that there is no intention to revoke unless for that pui-pose,
F. P
210 - A CONCISE TEEATISE ON POWERS.
then the doctrine of Onions v. Ti/rer (1 P. W. 343) applies "
{i.e., ccssaiife ratione revocandi ccsmt ipsa revocntio). But it will
be otherwise if the intention be to revoke in any case. In Qninn
V. Butler, there could be no doubt that the intention was to
revoke the will altogetlier. The codicil was an absolute and
positive revocation of tlie charge : then there was a new charge
of 7,000/., and the whole of that was given to the son, and was
therefore invalid. The case was in fact analogous to those in
which a testator says by codicil that the legatees named in his
will shall not receive anything, but that the fund shall be
given to another object; there, although the latter cannot take
the gift, the Court cannot speculate on whom the testator might
have wished to confer the benefit in such an event [Tuppcr v.
Tupper, 1 K. & J. 665 ; and see Duguid v. Frmer, 31 Ch. D.
449).
Extent of But if the words of the clause reserving the power of revocation
extend by necessary grammatical construction to some only of
several appointments made by the same instrument, a subsequent
execution of the power will not revoke all the appointments
made by such instrument. In Morgan v. Gronoic (16 Eq. 1),
the donee of a power of appointment among children executed a
deed in which he recited certain former appointments, and his
desire to confirm them, and he accordingly thereby confirmed
them : he then " directed and aj)pointed " the devolution of
other parts of the same fund ; and he reserved a power to revoke
" the direction and appointment " thereby made. He afterwards
exercised this power. Lord Selborne held that, although the
words of confirmation had been abeady held by him to operate
in substance by way of re-appointment, yet as the deed, so far
as language and phraseology were concerned, distinguished
between tlie two operations, the one being on the face of it
called confirmation, the other direction and appointment, the
power of revocation was meant to refer to what had been done
in tenns by way of direction and appointment, and not by way
of confirmation. And a deed of appointment, containing a
power of revocation, must be acted on, although there is
evidence of a subsequent appointment having been made, the
REVOCATION OF WILLS EXECUTING POWERS.
211
contents of which it is impossible to ascertain {Raiclitis v.
liickards, 28 B. 370).
37. In Freeman v. Freeman (Kay, 479, 487), V.-C. Wood Revocation of
, , . wills cxecut-
sajs that " if there were a power to appoint by will, and if a m^ powers by
good appointment were made by a will wliieh referred to the will!^^"^°
power and contained other devises, and if subsequently there
were another will, declared to be the party's last will, giving all
his real estate and not revoking any previous instrument, he
thought it would be extremely difficult to hold that the actual
appointment made by the first will was in effect revoked."
Now the mere fact of making a subsequent testamentary
paper does not work a total revocation of a prior will, unless
the latter expressly or in effect revoke the former, or the two be
incapable of standing together ; for though it be a maxim that
no man can die with two testaments, yet any number of instru-
ments, whatever be their relative date, or in whatever form they
may be, so as they be all clearly testamentary, may be admitted
to probate as together containing the last will of the deceased. If
a subsequent testamentary paper be partially inconsistent with
one of an earlier date, then such latter instrument will revoke
the former as to those parts only where they are inconsistent
("Williams on Executors, 8th ed. 165, cited in Lemage v. Goodban,
L. R. 1 P. & D. 62, as representing the true result of the autho-
rities; and see Re Tenney, 45 L. T. 78; IlelUer v. Hellier 9 P. D.
237; as to the expression "last will," see Pettinyer v. Ambler,
1 Eq. 510, 515 ; Cutto v. Gilbert, 9 Moo. P. C. 131. In Leslie
V. Leslie, 6 I. P. Eq. 332, these words are said to be of no weight
whatever. The use of the word " only " might perhaps have a
different effect; see Freeman v. Freeman, 5 J). M. & Gc. 704, at
p. 710). In that case, the words "last will" were held not to
amount to a revocation of a former wdll, without words to that
effect, as regarded real estate, though L. J. Turner seemed to
think that it would be different as to personalty. In Leslie v.
Leslie, however, the property was personal.
It woidd appear therefore that if, in the case put by Y.-C.
Wood, the power was a limited one, the subsequent will would
p2
212 A CONCISE TREATISE ON POWERS.
have no effect on the appointment made by the prior will,
whether before or after the Wills Act. In Freeman v. Ireeman,
the \n\\. was before 1838.
In Pitt V. Jaekson (2 Br. C. C. 51), the testator had power to
appoint 20,000/. among his children. By his will, in 1768, he
appointed 10,000/. to his daughter A., and also gave her a legacy
of 30,000/. In 1771 A. married, and the testator gave her
40,000/. as a portion. A month later, he made a codicil whereby
he revoked " the legacy of 40,000/." given by his will to A. It
was held that this revocation extended to, and revoked, the
appointment of 10,000/. as well as the actual legacy of 30,000/.
But if a man, since the AVills Act, seised in fee of Blackacre
and with a general power of appointment over Whiteacre, devises
and appoints all his estates to B., and afterwards, without
expressly revoking his former will, devises, but does not appoint,
all his real estate to C, it seems that C. would take botb
Blackacre and Whiteacre.
In S/tiel Y. O'Brien (7 I. R. Eq. 64), a testator made a will
by which he divided amongst his children all his own property,
and also property over which he had a power given him by his
marriage settlement ; (it does not appear whether the power was
general or limited). He afterwards made another will, which
contained no words of revocation, by which he fully disposed
of his own property but not of that over which he had a power
of appointment. The two wills were made in paragraphs, and
the latter appeared to be in many respects a copy of the former :
the Court admitted the latter only to probate. The effect of
this was to make the subsequent will, which contained no words
of revocation or appointment, operate as a revocation of the
appointment contained in the first will : the decision, however,
rests on the peculiar circumstances of the case ; (and see Lemage
V. Goodtjau, L. R. 1 P. & D. 57).
Will., in It was stated in the former edition that appointments made
execution of i -ii • j- p ^ i i i i
powers re- by Will m execution oi powers are not revoked by mere general
voked by mere TjyQj-fjy Qf revocation of all former wills without appointment,
words ot 1 i '
revocation on the authority of III h. JIvrritt (I Sw. & Tr. 112).
■without new / i rt a\ x-l
appointment. But this case, and that of In b. Joys (4 ih. 214), must be
REVOCATION OF WILLS. 213
taken to have been overruled by Holhcvan v. Donnimj (20 Cli.
D. 99), and the rule must now be stated as follows : —
A general clause in a will revoking all former
wills revokes a prior testamentary appointment.
In Sotheran v. DcintiiKj {.Hupra), a married woman had a
general power to appoint real estate by will. During her
husband's lifetime she made a will exercising this power ; and
after his death she made a second will by wliicli she revoked all
former wills, and made a general devise and bequest of all her
real and personal estate. She finally made a third will revoking
all former wills and bequeathing all her personal estate, but not
dealing with her real estate at all. It was held that the testa-
mentary appointment contained in the first will was revoked
by the second will, and the second will by the third ; so that
the real estate went as in default of appointment.
In Harvey v. Harvey (32 L. T. 141), testatrix, having a power
by will to appoint real estate among her childi-en, appointed it
in equal moieties to her two children. By a second will she
revoked all former wills, and devised and bequeathed all her
real and personal estate to her daughter. She had no real
estate except that over which she had the special power.
Malins, V.-C, held that the second will revoked the former
will, but did not operate as an exercise of the special power ;
and he declined to give the words of revocation the limited
effect which they would have had prior to the Wills Act.
In Re KiiKjdoii, Wilkins v. Pryer (32 Ch. D. 60-i), a married
woman, having a special power of appointing real estate among
her children, exercised that power by will in 1866. Her hus-
band subsequently died, having left her all his real estate ; and
after his death she made three separate wills, in each of which
she revoked all other wills. In the last she disposed of all her
real and personal estate, " including as well real estate as per-
sonal estate over which I have or shall have a general power of
appointment ; " but she did not affect to exercise or mention
her special power. Kay, J., held that the appointment of
214 A CONCISE TREATISE ON POWERS.
1866 -R-as revoked, and that the property went as in default
of appointment ; (and see In h. Eustace, L. R. 3 P. & D.
183).
T\iiatisa 38. A power of revocation and new appointment is
sufficient exe- ^ i i p • x
cution of a not cxercised by general words oi appointment,
revocation. if there is any other power to which the general
words may refer, or (since the Wills Act) by a
general devise or bequest, in the absence of all
evidence of an intention to revoke.
" An instrument which exercises a power of revocation and
new appointment must show, not merely an intention to appoint,
hut an intention to revoke the suhsisting appointment" {Re
Wells, 42 Ch. D. 646).
In Pomfret v. Perrincj (5 D. M. & G. 775), Turner, L. J.,
says (p. 780) : " Here an actual appointment has been made
with a power of revocation, and the appointment was to be
undone before the power of new appointment would arise. To
Bhow that a power of this description has been exercised, it is
not, I think, enough to show an intention to appoint ; an inten-
tion to revoke the former appointment ought also to be shown.
The principles acted on in other cases, with respect to the
exercise of powers seem to me to apply to this. If a person
has an interest in one subject, and a power over another, and uses
general words of disposition only, these words will not operate as
an exercise of the power. It is otherwise, when he has no
interest but only a power. The same principle must, I think,
apply to a case w^here a person has a power of appointment, and
also a power of revocation and new appointment. The general
words of appointment ought not to be held to be an exercise of
the power of revocation. If there was no power except one of
revocation and new appointment, it would be different : and the
general words would then be held to be an exercise of that
power. I think it clear that an intention must be shown to
revoke and undo what has already been done."
In Palmer v. Newell (20 Beav. 32), Lord Eomilly held that,
EXECUTION BY WILL. 215
although a general gift in a will does by virtue of tlie Wills
Act operate as an exercise of all general powers of appointment,
yet it does not operate as an exercise of a power of revocation ;
(and see CharlrH v. Burke, GO L. T. 380 ; 43 Ch. D. 2-23, n. ;
Nmmei/ v. WiUi(nnH, 22 Beav. 452 ; Re Jones, Greene v. Gordon,
34 Ch. D. G5 ; lie Brace, Welch v. Colt (1-^91), 2 Ch. 671).
In Be Gihhcn' Sefflemmf, White v. Bandotf {37 Ch. D. 143),
A., having a general power to appoint a fund "by his last will
and testament or any codicil thereto or any writing in the
nature thereof," duly executed what he designated a " testa-
mentary appointment." A month afterwards he executed a
will which eoutaiuod a gift of all the rest residue and remainder
of his estate and effects whatsoever and wheresoever, hut con-
tained no reference to the prior appointment. The will alone
had been proved, the registrar refusing probate of the " testa-
mentary appointment." North, J., held that the contrary
intention, mentioned in the 27th section of the Wills Act, must
appear in the instrument containing the residuary bequest or a
codicil thereto ; that he could not therefore look at the testa-
mentary appointment to find a contrary intention ; and accord-
ingly that the will operated as an execution of the power of
appointment and a revocation of the previous appointment.
The cases really show that a power of revocation must be
expressly, and cannot be constructively executed ; but the grant
of the estate subject to the power would be sufficient ; post, p. 268).
Before the Wills Act, a woman's will was revoked by her Revocation
marriage, except in some cases of wills made in execution of
powers {Logan v. Bell, 1 C. B. 872, and see Douglas v. Cooper,
3 M. & K. 381) ; a man's, by marriage and the birth of issue.
By the WiUs Act, sect. 18, it is enacted that every will made Wills Act,
by a man or woman shall be revoked by his or her marriage,
except a will made in exercise of a power of appointment, when
the real or personal estate thereby appointed would not, in
default of such appointment, pass to his or her heii', customary
heu', executor, or administrator, or the person entitled as his or
her next of kin under the Statute of Distributions.
But a will made in execution of a power of appointment is
216
A CONCISE TREATISE ON POWERS.
Revocation
by invalid
appointment.
not revoked by a subsequent marriage, wlien in default of
appointment the property of which it disposes passes under the
settlement containing the power, although the same persons
would take under such settlement as would have taken in case of
intestacy under the Statute of Distributions {In h. Fenicick, L. E.
1 P. &D. 319; In b. Mc Vicar, ibid., 671 ; In b. Worthington,
20 W. R. 260).
Nor is such a will revoked by a subsequent marriage, when,
in the event of certain contingencies happening, the property
thereby appointed will not, in default of appointment, pass to
the persons who would have taken in case of intestacy under
the Statute of Distributions {ibid.).
A will under a power will be revoked by any act amounting
to a revocation in law of a proper will (Sug. Pow. 458 ; Heid v.
Shergold, 10 Yes. 370).
A will is revoked by a subsequent defective execution of the
power, if the defect be such as equity can aid {Cotter v. Layer,
2 P. W. 624).
But it will not be revoked by an absolutely invalid appoint-
ment. In Eilbeck v. Wood (1 Puss. 564), a married woman,
donee of a powder of appointment by will, duly made her will in
execution thereof; she afterwards purported to appoint the
property by deed : this appointment being absolutely void, was
held not to be a revocation of the will ; (and see Ford v. Be
Pontes, 30 Beav. 572).
But where A., having power by will to appoint personalty
among her husband and children, by will appointed the fund
equally between her husband and children, and afterwards, on
the death of one of her children, made a codicil whereby she
bequeathed the share, which would have gone to the deceased
child had he survived her, to his two children who were
strangers to the power ; Kay, J., held that this did not amount
to a revocation pro tanto, so as to make the share appointed to
the deceased son go as in default of appointment ; but that the
whole fund must go under the appointment to the husband and
surviving children of the appointor {Duguid v. Eraser, 31 Ch. D.
449).
EXECUTION BY WILL. 217
39. An appointment under a power may be adeemed in the Ademption
same manner as a specific devise or bequest ; and if the appointor meuts!""^ "
aliens the property subject to the power, lie is to that extent to
be taken to revoke liis appointment.
By the Wills Act, sect. 23, it is enacted: "No conveyance Wills Act,
or other act made or done subsequently to the execution of **'
a will of, or relating to, any real or personal estate therein
comprised, except an act by which such will shall be revoked as
aforesaid, shall prevent the operation of the will with respect to
such estate or interest in such real or personal estate as the
testator shall have power to dispose of by will at the time of his
death" (see 1 Jarm. 162).
This section of the Act applies to cases where testators. Application
having devised their estates, make conveyances of them whicli ^"'*' ^^'
are to have the same effect as fines or recoveries, or where they
mortgage the de\dsed estates in fee and afterwards take a recon-
veyance of them to themselves and a trustee to bar dower: but
it does not apply to cases where the thing meant to be given is
gone (Shelford, Eeal Property Stat., 520, 8th ed., cited with
approval by Jessel, M. R., 15 Ch. D. 487).
There is, however, considerable difference of opinion as to the
effect of this section ; Lord St. Leonards, V.-C. Malins, and
Mr. Roper appearing to differ from Lord Romilly and Sir
George Jessel.
In Gale v. Ga/c (21 B. 349), A. had a general power to
appoint the reversion in fee of settled estates ; and the trustees
had a power of sale with A.'s consent, the proceeds to be held in
trust to be reinvested in land to be held to the same uses, &c., as
the lands sold. A. by his will appointed the estates to trustees
on trust to sell and hold the proceeds for the benefit of certain
persons named ; and he gave all his estate " not hereinbefore
specifically disposed of " to his widow. Aiter the date of the
will the estate was sold under the power of sale with A.'s con-
sent. The Master of the Rolls hold that the appointment was
adeemed, and that the proceeds passed under the residuary gift
to the widow. Lord St. Leonards (Pow. 308) disapproves of
this decision as being a narrow construction of the Wills Act :
218 A CONCISE TREATISE ON POWERS.
he considers that the power of appointment in A. was not
destroyed by the execution of the power of sale, but was merely
transferred to the property in its new state. " The testator did
not intend the legatees to take the settled estate itself, but the
produce of it, and that was precisely the condition in which the
settled property stood at his death. The reinvestment of the
money in another estate should have made no difference, for
the disposition by the will was really of the settled property,
and would embrace it in Avhatever shape it existed " (Sug. 308).
Mr. Eoper also disapproves of this decision (Legacies, 4th. ed.
332).
In CoUumn v. ColUnson (24 B. 269), a manor and lands were
by settlement in 1836 vested in A. upon trust to sell and hold
the proceeds for the children of the marriage as X. and Y.
should appoint. In 1849 part of the settled land was taken by
a railway company, and the purchase-money was laid out in the
purchase of cottages which were conveyed to A. upon the trusts
of the settlement. In 1851, by a deed-poll reciting the settle-
ment and describing the property thereby settled, X. and Y.
appointed that " all and singular the moneys to arise by the sale
of the aforesaid manor, lands, and other hereditaments, pursuant
to the trust in that behalf in the same indenture contained, and
the stocks, funds, and securities in or upon which the same
might from time to time be invested, and the interest, dividends,
and annual produce to arise from such trust moneys and the said
manor, lands, and hereditaments until such sale thereof as last
aforesaid, and the rents, issues, and profits of the same manor,
lands, and hereditaments should remain and be in trust " as
therein mentioned. The Master of the Rolls held that the
deed-poll did not operate as an appointment of the cottages.
In Blake v. Blake (15 Ch. D. 481), A. had a general power of
appointment over the reversion in fee of a moiety of settled
estates which the trustees had power to sell with the consent of
A. and his wife. In April, 1873, parts of the land were sold,
and the proceeds were paid to the trustees and by them invested
in India stock. In the July immediately follov/ing these sales
A. made his will, and, in exercise of his power, appointed his
EXECUTION BY WILL. 219
moiety of the settled manors and hereditaments to his son in
fee ; and " subject and without prejudice to the appointment he
had made of the moiety of the said manors and other heredita-
ments ho gave, devised, and Lcqueathed all the real and personal
estate of or to which he might have any power of appointment
to his wife." The Master of the Eolls held tliat the appoint-
ment was to be read literally as applying only to the lands
remaining unsold, and that the proceeds of the land sold passed
under the residuary gift to his wife.
On the other hand, in Re Johnstone (14 Ch. D. 162), a mar-
ried woman, having a general power over a settled fund, by her
will, after reciting that by the settlement £3,606 bank annuities
stood " settled upon trust for investment as therein mentioned,"
appointed " the sum of £2,000 bank annuities, part of the said
sum of £3,606 like annuities" to A., " £1,000 bank annuities
other part of the said sum of £3,606 like annuities " to B., and
" the residue of the said sum of £3,606 bank annuities " to C.
Part of the bank annuities were afterwards, with the consent of
the appointor, and her husband, sold out, and the proceeds
reinvested in railway stock ; so that at her death the settled
funds consisted of £2,000 railway stock and £1,087 bank
annuities, Malins, Y.-C, held that there had been no ademption
" because when the testatrix doled out these sums she meant to
appoint the fund which was subject to the settlement and over
which she had the power of appointment ; and this fund does not
cease to be the fund subject to the power in the settlement b}'
its being invested in a different security. It is not less the fund
comprised in the settlement by its being invested in Great
"Western guaranteed stock."
In Cooper v. Martin (3 Ch. 47),' an estate was devised on trust
for sale, with power of pre-emption for the testator's younger
children, and the proceeds were to be held on such trusts in
favour of his ehildi-en as A. should appoint before a certain
period. Cairns, L. C, thought that an appointment of the
estate eo nomine would have carried the proceeds of the sale of
the estate if it had been necessary to sell it.
It is submitted that the question in each case is, whether, on The true test
in these c«ses.
220 A CONCISE TREATISE ON POWERS.
the true construction of liis will, the testator lias appointed the
property subject to the power in whatever way invested, or
whether he has appointed a specific property and nothing else.
Is his expressed intention to execute his power, whatever may
be the property subject to it at his death, or to give a particular
estate, his title to dispose of which happens to arise from power,
and not from property ? V.-C. Malins (in Re Johnstone)
thought the former ; but it was a mere question of the construc-
tion of that particular will. In BJahe v. Blake, the Master of
the Rolls thought the latter ; and there was the additional cir-
cumstance in that case that the will was made immediately after
the sales, when they must have been fresh in the testator's
recollection ; and, moreover, that there was unsold real estate
left to which the words of the will aptly applied. In Gale v.
Gale, the property was given as a s^^ecific real estate. If the
testator had given it by virtue of his estate, instead of his
general power, the devise would undoubtedly have been
adeemed ; and it is difficult to see any reason for distinguishing
between property and power in such a case. The 23rd section
of the Act makes no such distinction, nor, it is submitted, can
any distinction be drawn for this purpose between general and
special powers ; the utmost that can be said is, that there is
perhaps more probability that a testator who appoints under a
special power intends to appoint the property, whatever it may
be, rather than to give a particular estate and nothing else.
But this is not necessarily true in qyqtj case ; and even if it
were, seems too slight a ground upon which to found any
distinction ; (and see Thompson v. Shnpson, 50 L. J. Ch.
461).
Mr. Jarman's last editors (i. 163) appear to consider Gale v.
Gale wrong. But it is, with deference to them, submitted that the
question is not so much whether the property has been converted
out and out, or is subject to a trust for re-investment, as whether
the words of the will are sufficient to carry the property in the
condition in which it is found at the testator's death. It is
difficult to see how the existence of a power of sale and a trust
for re-investment of the proceeds thereof can make an appoint-
EXECUTION BY WILL.
221
ment of Blackacre operate as if the words " or other property
subject to the power at my death " were added thereto.
These cases must be distinguished from cases like Walher v.
Arftisfroii'j (21 Beav. 284; 8 D. M. & Gr. 531), where a testamen-
tary power, which had been executed, was destroyed by the exer-
cise of a paramount power ; and the Master of the Rolls held that
the will could not be read as an exercise of a similar testamen-
tary power substituted for the former power. On appeal, how-
ever, the documents were rectified.
The mere accession of the legal to the beneficial interest does Accession of
. leg'al to bene-
not operate as an ademption. Thus, in Dinfjucll v. Askric ficial interest
(1 Cox, 427), under a settlement, a married woman having a ^l^^^ *''™^'
general power of appointment over personalty, appointed by her
will during coverture. Her husband died in her lifetime, and
the settled fund was afterwards transferred to her. She died
without making any other will, and it was held by Kenyon,
M. R., that the appointment was not adeemed; (so in ClouyJi v.
Clough, 3 M. & K. 296 ; and see Lee v. Lee, 6 W. R. 846 ;
Lmcrenee v. Wcdlis, 2 B. C. C. 319).
These cases must, however, be distinguished from the appoint-
ment of a specific fund which is received by the appointor
who changes the investment. In such a case the appointment
is adeemed ; but by reason of the change of investment, not of
the transfer by the trustees to the appointor {Joues v. SoufJinll,
32 B. 31, and cf. Lee v. Lee, .supra) ; in Joi/e-s v. SoutJtall the
testator gave " all the share proportion or interest in or to
which I may become entitled or interested in the personal
estate of " X. deceased to trustees. The personal estate of X.
was outstanding at the date of tlie will, but was subsequently
got in, and the testator's share, which realised £5,370 Consols
and £1,100 Reduced 3 per Cents., was transferred to him. He
sold out the latter sum, and used the proceeds for his own pur-
poses ; but the Consols remained standing in his name. It was
held that the mere transfer of the Consols to the testator did not
affect his disposition thereof; but that the £1,1U0 had been
adeemed by the testator's dealings with it.
40. By sect. 24 of the Wills Act it is enacted that " ever3' will Wills Act,
24.
A CONCISE TREATISE ON POWERS.
shall be construed, with reference to the real estate and personal
estate comprised in it, to speak and take effect as if it had been
executed immediately before the death of the testator, unless
a contrary intention shall appear by the will."
B}' sect. 27, it is enacted that " a general devise of the real
estate of the testator, or of the real estate of the testator in any
place, or in the occupation of any person mentioned in his will,
or otherwise described in a general manner, shall be construed
to include any real estate, or any real estate to which such
general description shall extend (as the case may be), which he
may have power to appoint in any manner he may think proper,
and shall operate as an execution of such power, unless a con-
trary intention shall appear by the will ; and in like manner a
bequest of the personal estate of the testator, or any bequest of
personal projDerty described in a general manner, shall be con-
strued to include any personal estate, or any personal estate to
which such description shall extend (as the case may be), which
he may have power to appoint in any manner he may think
proper, and shall operate as an execution of such power, unless
a contrary intention shall appear by the will."
It wdll be observed that sect. 24 does not provide that a will
shall for all purposes take effect as if executed immediately
before the testator's death ; and the phraseology of sect. 27,
" shall be construed to include," &c., appears to point to sect. 24
(see Re Wells, 42 Ch. D. at pp. 656, 657). This has some import-
ance in considering the applicability of sect. 24 to limited powers.
One result of the joint operation of the two sections may be
stated thus : —
A general power of appointment may be well
exercised by a will executed previously to the
creation of the power, and that, too, by a mere
residuary gift (Stillman v. Weedon, IG Sim. 26 ;
Moss V. Harter, 2 Sm. & Giff. 458 ; Patch v. Shore,
2 Dr. & Sm. 589 ; Bo?/es v. Cook, 14 Ch. D. 53;
Airef/ v. Bower, 12 Ap. Ca. 263).
EXECUTION BY WILL. 223
Lord St. Leonards says (Pow. 30-0-0) : " "Wliore the pro-
perty is settled l)y tlio testator himself upon otliors, in default
of any appointment by him under his power, it would seem to
require some indication of an intention by him to defeat his
settlement, in order to hold a general gift in his will, which can
be satisfied by other property, to be an execution of his power."
But this doubt is not borne out by the cases ; the 24th and 27th
sections are express, " unless a contrary intention appear h>j the
icUir And in Re Clark, Maddiclc v. Marhs (14 Ch. D. 422),
James and Cotton, Iv. JJ., said that the Act ought not to
receive a different construction as regards a power contained in
a settlement created by the testator from that which it would
receive in other cases.
In Pctfuiger v. An/h/er (1 Eq. 510), B., by his will, dated in
1858, after specific devises, gave " all other real and personal
estate of which he should die possessed or should have power to
dispose " on certain trusts. By voluntary settlement in August,
1862, B. conveyed all his freehold property on trust after his
death for E. for life, with remainder as B. should " by his /asf
KiU or any codicil thereto " appoint, and, in default of apiDoint-
ment, for E. in fee. In November, 1862, B., by an instrument,
commencing " This is the last icill of me," &c., and not men-
tioning any former will, appointed under the power an annuity
to be raised out of his freehold property, and devised his copy-
holds, but made no further disposition of the freeholds. The
Master of the Rolls held that the will of 1862 was the only will
intended to execute the power, and accordingly held that both
the specific and the residuary devises made by the will of 1858
failed ; but he said that if the testator had not made a will after
the settlement, he should luive lield that the first will was an
execution of the power.
This case is explained by the Master of the llolls in llodmlon
V. Dancer (16 W. R. 1101). In that case real estate was settled
in May, 1849, to such uses (in the events that happened) as
F. R. D. should by deed or will appoint. In 1845 F. R. D.
had disposed of the whole of his property by will. In
'November, 1849, he made another will, which only affected
224 A CONCISE TREATISE ON POWERS.
personalty; it was held that on the true construction of the
24th and 27th sections, the disposition of the prior will was a
good execution of the power contained in the subsequent settle-
ment ; (and see Cofield v. Pollard, 5 W. E. 774).
In Mercdyth v. Meredyth (5 I. R. Eq. 565), a testatrix in 1860,
devised her real estate to certain uses ; she then gave legacies,
and declared that her trustees should have power to raise by
sale or mortgage sufhcient to pay her debts and legacies, if her
personal estate should prove insufficient. In 1862, she settled
her estate, reserving a paramount power to charge 1,000/. for
her own benefit. She afterwards made a codicil, giving a legacy
and confirming her will. The Master of the Rolls was of opinion
that the will was an express exercise of the power of charging,
but at any rate the will and codicil together, without reference
to sect. 27, operated as an execution.
In Re Old, Pemjelley v. Ilcrhert (54 L. T. 677), A., the
day after her marriage, made her will as follows : " in pursuance
and exercise of the power of appointment vested in me by the
settlement executed previously to my marriage, and of every
other power enabling me, I hereby appoint, give, and bequeath
all the property settled by me on my marriage and over which
I have any disposing power to my dear husband." Subse-
quently her uncle died, leaving her a legacy for life with
remainder as she should appoint. Pearson, J., held that the
will operated to exercise the power which she had over the
legacy.
It will be observed that this case was a mere question of con-
struction. The Court in effect read "ro/rZ" as "or," so as to
make the words of appointment co-extensive with the recited
intention of executing all powers.
On the other hand, in Re Rudimj (14 Eq. 266), J. C. R.
transferred a sum of stock to trustees on trust for such persons
as he should by deed or will appoint, and in default of appoint-
ment, for three persons named. J. C. R. had previously made
a will, which would operate as an execution of this general
power. Y.-C. Maliiis considered that the evidence afforded by
surrounding circumstances showed that the testator did not
EXECUTION BY WILL.
225
intend to execute this power. But it does not appear how The contrary
, 1 • •! 1 • intention
evidence of surrounding circumstances can be admissible in must appear
such a case ; the statute says, " unless a contrary intention ^ ' *-' ^
appear bi/ the ivill.^' And in Scrireii v. Sandoin (2 J. & H. 74'3),
Y.-C. AVood says : " There is no contrary intention within the
meaning of the statute, unless you find something in the iciU
inconsistent -w-itli the view tliat the general devise was meant as
en execution of tlie power;" and see his judgment in. TlionuiH
V. Jones (2 J. & II. 475).
The decision in Re Ruding may now be taken to be over-
ruled by Boijoi V. Cool: (14 Ch. D. 53) and Airey v. Bouer
(12 App. Ca. 263) ; and see Re Clark (14 Ch. D. 422) ; Re
Hernando (27 Ch. D. 284) ; Re Marsh (38 Ch. D. 630).
In Airei/ v. Bou-er there were strong words of futurity which Words of
1 • 1 Pill futurity in
were much relied on, as taking the case out oi the rule above power insuffi-
stated. The power was a general power to the settlor by deed exclude rule.
or will "from time to time or at any time hereafter " to appoint,
and was contained in a settlement made in 1855. The settlor
had in 1854 by her will made a general residuary devise and
bequest of all her real and personal property. The House of
Lords held that the power was exercised by the will ; and Lord
Macnaghten added : " The case is, perhaps, distinguishable
from Boi/cs v. Cook ; the words of futurity are more emphatic ;
but I think it would be very unfortunate if at this date the
beneficial effects of the Wills Act were frittered away by such
nice distinctions." He thought the case might also fall under
sect. 23.
In Thompson v. Sitnj^son (50 L. J. Ch. 461), Kay, J., appears
to have held that an express reference to an existing general
power was sufficient evidence of a contrary intention within the
meaning of the Act to prevent the will from executing a general
power over the same property, created after the date of the will
by an exercise by deed of the prior power. But the ease is very
shortly reported.
The cii-cumstance that a residuary devise contained limita-
tions during the life of B., is not conclusive evidence of an inten-
tion not to execute a power, which would only come into exist-
r. <■(
2-26
A CONCISE TREATISE ON POWERS.
Effect of re-
publication of
■vrill before
Wills Act.
How far rule
applicable
to limited
powers.
ence in the eveut of B. predeceasiug the testator {Thotuaa v.
Jones, 2 J. & H. 475).
But a man can execute only such powers as are given to him
during his lifetime ; he cannot execute a power given by the
will of a person who survives him, unless sect. 33 of the Wills
Act applies {Be Hcnslcr, 19 Ch. D. 612). In Jones v. Southal
(32 B. 31), A. by his will gave personal estate to such persons
as B. should appoint. B. made his will, but died before A.;
it was held not to be an execution of the power.
Before the Wills Act, the republication of a will after tL
creation of a power in the testator would not operate to make i
will, executed prior to such creation, an execution of the powe:
{Coicper V. 21antell (No. 1), 22 B. 223).
41. There does not appear to be any case in the books in
which the applicability to limited powers of the rule stated in
the preceding section has been determined. It is open to ques-
tion whether sect. 24 in terms applies to limited powers at all :
it is at least doubtful whether property appointed under a
limited power can be said to be real or personal estate " com-
prised in " the will : the execution of such a power does not in
any way bring the appointed property into the will, but operates
as a nomination of the persons whose names are to be inserted
as beneficiaries, in lieu of the power of appointment in the
instrument creating such power. Further, sect. 27 does not
extend to limited powers {see post, sect. 42). The testator must,
therefore, show an express intention to execute ; and if regard
is to be had to the date of the will as evidence of intention (as
in He Wells, 42 Cli. D. 646), there must be many cases in which
no intention to execute can be found (see Cave v. Cave, 8 D. M.
& Gr. 131). There is, also, the further objection that limited
powers are exerciseable for the benefit, not of the donee, but of
the objects of the power ; and that the appointor has a moral
duty to perform in distributing the fund fairly and in accord-
ance with the requirements of the objects of the power, having
regard to all the circumstances. It is difficult to see how he can
discharge this duty by a will made before the existence of the
power which he is supposed to execute. If this objection, how-
ever, is sound, it extends to all cases, including those where a
EXECUTION BY WILL.
2-27
testator expressly refers to futm-e as well as existing powers.
It is suggested that the objection is to some extent supported
by the reasoning of tlie cases where a limited power to the
survivor of two persons has been held not well executed by the
actual survivor by a will made during the joint lives (see ante,
sect. 15, p. 158).
In Re Wells, Ilardistij v. Welh (42 Ch. D. 046), a testator
had a limited power of appointment among children. He made
a will in 18C9 in express exercise of the power; and in 1878
executed a deed by which he made a different disposition of
part of the settled property, and reserved to himself a power of
revocation. Stirliog, J., held that in ascertaining the testator's
intention he was entitled to regard the date of his will ; and,
without expressly deciding that sect. 24 of the "Wills Act did
not extend to limited powers, he held that it had not the effect
of making the will speak fi'om the death for all purposes, and
that the fact that the will was dated before the appointment of
1878 negatived any intention to execute the power of revocation
reserved by that appointment.
42. The Wills Act, sect. 27, introduced an important altera- Effect of
,.„;,,, ,. sect. 27.
tion in the law relating to appomtments by will, but the section
applies only to general powers. The law before the Act is thus
stated by Lord St. Leonards in Lahe v. Currie (2 D. M. &, G-.
547) : " It is clearly settled that a general devise or bequest will
not, independently of the Wills Act, operate as an execution of a
power ; but it is also settled {Roahe v. Deun, 1 Dow & C. 437 ;
Grant v. Lynnm, 4 Russ. 292), that where a testator disposes of
real estate, not having any other than what is subject to the
power, he is in such a case to be taken as dealing with that
estate ; and that, both as to realty and personalty, if the Court
is satisfied, by the manner in which the particular property is
referred to, that the testator intended to deal with that property,
the disposition will be a valid execution of the power
The intention of the Statute of Wills was to extend, and not to
narrow, the operation of devises. It is now absolutely necessary
to show a contrary intention to exclude the execution of a power,
q2
2*2 S A CONCISE TREATISE ON POWERS.
while under the old law it was needful to show the intention to
execute the power."
Powers may Jt has been held {Re Spooiicr, 2 Sim. N. S. 129), that the
by what words, " I constitute A. B. my residuary legatee," mean the
wOTd^" same thing as *' I give all the rest and residue of my personal
Appointineut estate to A. B." And, although prima facie the words only
of r^sidtxiirv
legatee. " extend to personal estate {KelJett v. Kelletf, 3 Dow, 248 ;
Windm V. Windus, 21 B. 873 ; 6 D. M. & Q. 549), the term
" residuary legatee " is one " which must he fashioned and
moulded by the context ; and if you have a context in which
the testator is found looking at his landed property, not as land,
but as something which is all to be sold and turned into money,
then the term ' residuary legatee ' becomes a term as applicable
to the proceeds of landed property as it would have been in
the first instance to personal property " {per Lord Cairns, in
Singleton v. Tomlinaon, 3 App. Ca. at p. 418) ; and for an example
of a residuary gift not within sect. 27, see Wilkinson v. Schneider
(9 Eq. 423).
Bequest of A bequest of " my personal estate " is the natural way of
estate." expressing " a bequest of personal estate of the testator " within
sect. 27 {Chandler v. Focock, 15 Ch. D. 491 ; 16 ihid., 648). It
is not the less general because the testator uses the word "my."
By the joint effect of sects. 24 and 27 a bequest of "my
personal estate " should be read as if it included the words " I
appoint all the personal estate over which I sliall at my death
have a general power of appointment " {ibid.). In Chandler v.
PococJi the question was whether a bequest of " the residue of
my personal estate " passed consols which represented the pro-
ceeds of sale of lands, settled on the testatrix for life, with
remainder to her issue, with remainder to her testamentary
appointees. She never had issue, and the lands had been sold
under a power of sale in the settlement, the proceeds being
subject to a trust for reinvestment in land, and the consols,
representing the purchase-money, had been transferred to the
testatrix. It was held that they passed under the appointment
contained in the residuary gift as personal estate. It will be
observed that no one but the testatrix had any right to call
EXECUTION BY WILL. 229
for a reinvestment in laud : tlio property was in fact personal
estate, and the equity to treat it as laud could only arise if the
testatrix did not appoint. " What the authorities decide is this,
that whore there are persons entitled to an immediate interest
who, after the death of the testator, have still a right to call for
the investment of money in land, there it is real estate of the
testator, and a gift of ' my real estate ' would pass it ; but a
gift of *my personal estate ' would not" (15 Ch. 1). 499; ace.
Be Greaves, 23 Ch. D. 313).
A devise of " my real estate," by the joint effect of sects. 24 Devise of
and 27, passes all real estate over which the testator has a general estate/'
power at his death, including real estate which he has appointed
specifically in the earlier part of his will, and the appointment
of which lias lapsed [Frnur v. C'lcnicnf, 18 Ch. D. 499). It is
submitted that so much of the judgment in this case as applies
to general powers is untouched by UoJijland v. Lcu-in (26 Ch. D.
266).
43. There is a distinction between testamentary gifts of real Evidence
and personal estate, which before the "Wills Act was of consider- testator's
able practical importance; but which, though still in theory ^^^en^ad-
existing, appears to be now of little, if any, weight. Before missible.
the Act, the distinction in question applied to all powers, whether
general or limited : since the Act, the distinction applies to
limited powders only. The rule is this : —
111 a gift of real estate, the Court may examine
whether the circumstances of the testator's pro-
perty are such as to give effect to the will : in a
gift of personalty, the Court cannot look beyond
the Avill.
" Whatever is the inadequacy of a testator's property to
satisfy the terms of the will, and whatever may be the conviction
of the Court of his intention to execute the power, the state of
his personalty at the time of the will or the death cannot be
examined for the purpose of collecting evidence of his intention"
230
A CONCISE TREATISE ON POWERS.
Is there any
difference in
the case of
a married
woman ?
{Jonrs V. Curn/, 1 Sw. 66 ; Jones v. Tucker, 2 Mer. 533 ; Lorell
V. Knight, 3 Sim. 275 ; Lempriere v. FW/jo?/, 5 Sim. 108 ;
Bummer v. Pitcher, 2 M. & K. at p. 275 ; Grant v. Lynnm, 4
Euss. 292), where the rule was extended to leaseholds; and
StanrJen v. Standen (2 Ves. jun. 589 ; 6 Bro. P. C. 193), where it
was held that the donee of a power of appointing both real and
personal estate executed his power over both by general words.
In that case, the testatrix had no real estate of her own ; this
fact, which was admissible in evidence according to the rule
above stated, showed her intention to execute her power, and
that wlien she talked of her real estate she meant the real estate
subject to the power, and the same intention was held to govern
the entire gift (Sug. Pow. 338).
There are authorities to be found in the books which draw a
distinction in the case of married women, on the ground
originally suggested by Lord Hardwicke in Churchill v. Dihhen
(3 Lord Kenyon, 68, 81, shortly reproduced in 9 Sim. 447, n.) :
" Because the Court must think it a will meant to execute a
power, though there is no reference to it, which makes no differ-
ence ; it can have no other sense. By the very act of making
a will, she could have nothing in view but to execute the power.
That is plain, because, as a feme covert, she had no other
capacity than what was reserved to her by the settlement, which
differs this from what it would be if the words could mean a dis-
position of other lands than what are comprised in the power. If
a man had power, by appointment, of disposing of particular
lands, and other lands of his own in fee, there the latter would
satisfy the residuary de\ase. But here the testatrix must be
intended by this disposition to have executed the only power
she had. How are the goods and chattels to pass but by the
power? In that way they may, because the settlement has
made them her separate estate."
This view was adopted by V.-C. Stuart in Attorney-General v.
WilMmon (2 Eq. 816). In that case a testatrix, having by her
marriage settlement power by will or deed to appoint a certain
sum of stock, by her will dated 1822, and not referring in terms
to the power, gave " all her property and estate whatsoever and
EXECUTION BY WILL.
231
wheresoever, and of what nature, kind, and quality soever the
same might be," to her Imsband absohitely. The Vice-Chan-
cellor hekl this a good execution of the power. He said that the
property subject to the power proceeded entirely from the testa-
trix (it was a fund brought into settlement by her on her mar-
riage), and although her will did not refer to the power, it could
have no operation at aU unless treated as an execution of the
power. Although the words of the will did not mention the
particular fund which was subject to the power, as it did not
appear that she had any other property, there was none other on
which the will would operate; (Cioieis v. Kenric/.; 3 M. & W.
460 ; 9 Sim. 443 ; and Shclford v. Adam/, 23 B. 10, are to the
same effect ; see, too, Avails v. JEvans, 23 B. 1). On the other
hand, the contrary was decided in LoveU v. K)ti(jht (3 Sim. 275),
and Lanjrnere v. Valpi/ (5 Sim. 108 ; 9 Sim. 447) ; and it is
submitted that the latter cases are correct, and that there is no
distinction in this respect between wills of married women and
those of other people ; for a married woman had not an absolute
testamentary incapacity: she might have separate estate; of
this she could certainly dispose by her will : and she might also
make a will with her husband's concurrence. Since the Married
Women's Property Act, 1882, moreover, women, married before
the 1st January, 1883, can dispose by vnR of property then-
title to which accrues after the 31st December, 1882 ; and
women, married since the latter date, of all their property.
The latter clause of the rule never applied to cases where the Evidence
„ , -rrri • Pi^ • • • -i- • admissible
will refen-ed to a specific fund. Where a gift is pnmi /acic .vhere specific
specific, evidence of the state of the property at the date of the ^^^JXo.
wiU is admissible (Wigram on Evidence, p. 51, pi. V.; Junes
V. Saijer, 3 M. & G. 606 ; Shutflcicorth v. Grcaces, 4 M. & Cr.
35).
In Machinlci/ v. Sison (8 Sim. 561), a spinster, haA-ing a
general power of appointment over a fund of 3 per Cent. Consols,
made her will whereby she gave several pecuniary bequests, and
directed that they should be paid " out of the moneys invested
in my name in the 4 per Cent. Grovemment Securities." It
was admitted that she had no such secui'ities, and that tlie only
233 A CONCISE TKEATISE ON POWERS.
property of any kind which she possessed was the fund of consols
over which slie liad a power. It was held that she must have
intended to execute the power; (and see Elliott v. Elliott, 15
Sim. 321 ; and Walker v. Machic, 4 Russ. 76).
In Re Grntwick (1 Eq. 177), a widow, having a life interest
in a sum of consols with a power of appointment among her
childi-en, who took equally in default of appointment, by her
will, without referring to the power, bequeathed all money
belonging to her *' in the 3 per Cent. Consols, or in any other
stocks or funds of Great Britain, with the dividends thereon,
and all other moneys that she might die possessed of or become
entitled to," to her two surviving children and her daughter-in-
law equally. The testatrix was not at the date of her will or at
her death possessed of any government funds, except so far as
she had a life interest in the fund subject to the power. The
M. R. held that she must have intended to exercise the power,
and that her will operated as a good ax)pointment of two-thirds
of the fund, and that the other one-third went as in default of
appointment.
Effect of The rule is of less importance since the Wills Act. The
Wills Act
on the rule, object of the inquiry was to ascertain whether the testator, who
purported to dispose of real estate, had anything on which the
words of his will could take effect ; the inference being that, if
he had none of his own, but had power to dispose thereof, he
must have intended to exercise his power, because there was
nothing else to which the words could refer. But since the
"Wills Act, every will is to be construed, with reference to the
real and personal estate comprised in it, to speak from the
testator's death (sect. 24) ; and the inference therefore no longer
arises. The incj^uiry, however, is still possible, because all
devises of real estate are still specific {Lancefield v. Ig gulden, 10
Ch. 136) ; but it is practically useless, because, if answered in
the negative, no presumption necessarily arises that the testator
must have meant to execute his power ; (see Re Mills, 34 Ch.
D. 187 ; Harvey v. Harvey, 32 L. T. 141 ; 23 W. R. 478). The
question can hardly arise, since the Wills Act, except in cases of
gifts to the objects of a limited power.
EXECUTION BY WILL. 233
The 27th section does not apply to limited powers {Cloves v. Extent of
Aminj, 12 B. 604; lie Williams, Foulkes v. Williams, 42 Ch. D. ofSS.
93) ; but it does apply to married women having general
testamentary powers exereiseable during coverture [Bernard v.
Miiis/uill, John. 276). And a direction that a fund (over wliich
a power of aiipointment to whom she pleases is given to A.) is
not to be distributed till twelve months after A.'s deatli, will not
prevent the power from being general within this section {lie
Keoun, Ir. Iv. 1 Eq. 372). But a power to appoint "by will
expressly referring to the power " is not a general power within ^
sect. 27 {PhUlliisj^^Ca£ey, 43 Ch. D. 222, overruling Re Marsh, ^^'^ ^ - y
38 Ch. D. 630 ; and see Bavies v. Bavies, (1892) 3 Ch. 63). Nor,/^^^ '^ -^e—
semhle, is a power to appoint by will executed after A's death {Ai^2 0^ D^h ^''^i
Ch. D. 230). But no stress can be laid on the word " hereafter " /
{Aireu v. Bouer, 12 Ap. Ca. 263). It has been held in Ireland
{Edie V. Bahington, 3 Ir. Ch. E. 568) that a power to appoint to any
one except A. is a general power, so as to make the appointed fund
assets for the payment of the appointor's debts ; but such a power
was held in lie Byron, Williams v. Mitehell (1891, 3 Ch. 474), not
to be a general power within sect. 27 of the "Wills Act.
The intention of the Legislature was to abolish the distinction
between property and general powers, and to make it unnecessary
in framing a will to refer to the instrument creating the power,
or to the subject of the power ; accordingly the fact that a testator
has described property subject to a general power, as his own
absolutely, does not exclude the operation of the section {Frank-
comhe v. Ilai/ward, 9 Jm'. 344). So a direction for the payment
of debts and the appointment of an executor will operate as an
execution of a general power since the Act ( Wildaij v. Barnelf,
6 Eq. 193) ; to the extent necessary to pay the debts {Laing v.
Coican, 24 B. 112 ; Be Meringill, 17 Ch. D. 151). A dh-ection
for the payment of debts without more ^\dll also be sufficient ;
but {semhle) not the appointment of an executor without more
{Re Davies, 13 Eq. 163) ; although Jessel, M. E., appears to
suggest that it would be enough {lie Pinede, 12 Ch. D. 667).
In Re Thurston (32 Ch. D. 508), Chitty, J., held that the
234 A CONCISE TREATISE ON POWERS.
appointment of an executor was not sufficient; and see post,
sect. 46, p. 237.
Legacies. Legacies are bequests of personal property described in a
general manner {Ilairf/iorn v. Shcdden, 3 8m. & Giff. 293). In
Re WUkinson (4 Ch. 587), a testatrix had a general power of
appointment over various sums of money. She gave several
pecuniary legacies, and then gave the residue, subject to the
payment of her debts, to two persons, one of whom was also an
executor. The Court held that these legacies were good appoint-
ments under the power, saying that it would be difficult to
di-aw any distinction between a gift of the whole and a gift of
legacies, wliich is merely dividing the gift into three or four
portions instead of giving it in one. L. J. Giffard said that if
there was a gift of 100/. he did not see why that should not be
part of the personal estate of which the testator had power to
dispose. This overrules HtirUtone v. AsMon (11 Jur. N. S. 725).
In Wilday v. Barnett (6 Eq. 193), there was an express ap-
pointment of an executor, and a direction that he should pay the
debts and expenses out of the personal estate ; there was then a
gift of legacies and a gift of the residue. The Master of the
Rolls considered that the will had in effect ajjpointed the pro-
perty to the executor for the purpose of paying debts and
expenses, and that it is the duty of an executor to pay the
legacies out of a fund so appointed to and vested in him ; that
being so, he thought that the gift of the residue was not an
execution of the power in favour of the residuary legatee, but a
gift of so much of the fund previously appointed to the executor
as should remain after payment of the debts, expenses and
legacies.
In Re Keoicn (1 I. R. Eq. 372), there was a direction by will
to executors to call in, receive, and raise the several moneys the
testatrix should die possessed of or entitled to, and apply the
same in payment of debts, funeral expenses, and legacies. The
will proceeded : "And I appoint that in case there should be a
sufficient overplus, my executors should pay to J. J. and H. M.
100/. each ; and whatever money may be over and above after
EXTENT OF EXECUTION BY 'SVTLL. 235
they aro paid, I request that my executors may apply as I shall
direct them by letter." Tliero was no other residuary bequest,
and no letter. The testatrix had a power of appointing a sum
to be raised out of real estate to whom she pleased, such sum not
to be distributed until twelve months after her deatli. It was
held that this general power was well exercised, and that the
next-of-kin of the testatrix were entitled to it.
44. In order to negative the execution of a general Contrary
, . ^ iuteutiou
power by a general devise or bequest it is neccs- must appear
sary to show a contrary intention ; and such
contrary intention must appear on the will itself
(sect. 27) {Lake v. Currie, 2 D. M. & G. 536;
IMchins v. Oshorne, 4 K. & J. 252 ; 3 De G. & J.
142; Be ClarJc, Maddlck v. Marks, 14 Ch. D. 422).
In Lake v. Currio, supra, two estates Avere so settled that over
estate A. the testator had no power of disposition, while over
estate B. he had a general power. The testator by his mil con-
firmed the settlement, and, reciting that he was seised of con-
siderable real estate and might become seised of more, he devised
all the real estate of which he might die seised or possessed upon
trusts differing from those of the settlement. In fact he had
no interest, either at the date of his will or at his death, in any
other estates than A. and B. It was held that the confirmation
of the settlement was intended only to operate on the A. estate
which was settled absolutely, and was no evidence of an intention
not to exercise the general power over the B. estate ; and that
accordingly the general devise operated to appoint the latter
estate.
In Hutchins v. Osborne, supra, a husband, having under his
marriage settlement a general power of appointment over lease-
holds, made his will, and after giving certain legacies made a
general residuary devise and bequest, " subject to the pnj'ment
of the before mentioned legacies, and subject also as to such
parts thereof respectively as are comprised in " his marriage
236 A CONCISE TKEATISE ON POWERS.
settlement, which he thereby confirmed and ratified in all
respects, to his wife absolutely. The Y.-C. and the L. JJ. held
that the ratification of the settlement was not evidence of an
intention not to exercise the power, and that the residuary be-
quest operated as such exercise.
Effect of lapse 45. "The general rule of equity relating to lapses is equally
OD oxprcisG of
powers. applicable, whether the legacy be given under a will made by
virtue of donorshij) flowing originally from the testator, or
whether it be given under a power created for the purpose : for
in the latter case, although the legatee will take under the
authority of the power, yet he will not be considered as taking
from the time of its creation, so as to prevent a lapse occasioned
by the death of the legatee before the appointor, when the power
is executed by will" (1 Eoper on Legacies, 494).
" The meaning that persons must take under the power or as
if their names had been inserted in it, is that they shall take in
the same manner as if the power and the instrument executing
it had been incorporated in one instrument : then they shall
take as if all that was in the instrument executing had been
expressed in that giving the power" {per Lord Hardwicke
in Duke of Marlborough v. Lord Godolphin^ 2 Ves. Sen. 61,
78).
Wills Act, The 33rd section of the Wills Act enacting that a bequest to
a child of the testator who dies in the testator's lifetime, leaving
issue living at the testator's death, shall not lapse, applies to a
testamentary appointment made in execution of a general power
{Ecclcs V. Cheijne, 2 K. & J. 67G) ; but not to such an appoint-
ment made in execution of a limited power {Griffiths v. Gale,
12 Sim. 327, 354 ; Frccland v. Pearson, 3 Eq. 658, 603 ; Holy-
land V. Lewin, 26 Ch. D. 266). In the last-named case reliance
was placed on certain dicta of Jessel, M. E., in Freme v. Clement
(18 Ch. D. 499, 515), which seemed to imjjly that the M. E.
was in favour of extending the section to appointments under
special powers. But Lord Selborne said that "the words
* devise ' or ' bequest,' when used in the Wills Act without any
indication of an intention that they should apply to appoint-
ments under powers, ought prima facte to be understood in their
sect. 33.
KXTEN'J' OF EXECUTION IJY WILL. 237
ordinary sense, viz., as referring to a gift by will of the testator's
own property and nothing else."
The interest of persons taking in default of appointment does
not lapse by reason of the death of the intended appointor in the
lifetime of tlio donor of the power {Edicards v. Sahicai/, 2 Ph.
625 ; iY/V'//o/.v v. Ifarihuxl, I K. & J. 504).
And it may here be added that although the appointee takes From -what
under the authority of the power, and as if "the instrument takes'!^^'"*^''
executing had been expressed in that giving the power," yet he
does not take as from the date of the creation of the power so as
to benellt by or include an appointment made to him by will
which fails by his death before the death of the appointor, the
donee of the power {Duke of Marlborough \ Lord Godolphin,2
Yes. Sen. 61, 80). And in this respect, the difference between
an appointment by will and one by deed must be borne in mind.
The latter is an act complete in itself, and the thing appointed
vests from the execution of the instrument making the appoint-
ment ; whereas in the former case the death of the appointor is
necessary to make the act complete and to make the subject of
the power pass {ibid.).
46. In cases of wills exorcising a general power of Extent to
appointment, it is a question of intention whether general
the donee of the power meant by the exercise of taken as
it to take the appointed property out of the in- ^^^"^^
strument creating the power for all purposes, or
only for the limited purpose of giving effect to
the particular disposition expressed [Re De Liisfs
Trusts, 'S L. K. Ir. 232 ; Be Pinede's Settlement, 12
Ch. D. G67; Re Van Ilagan, 16 Ch. D. 18). And
there is no difference in this respect between real
and personal estate [Re Van Hagan, ihid. 31).
The question arises in the case of appointments which fail Intention,
by reason of the death of the appointee in the Kfetime of the cm'^r^.^'^''
testator ; and the difficulty lies in the necessity of discovering
238 A COiNX^ISE TREATISE ON POWERS.
an expression of intention to provide for an event wliicli in most
cases the testator never contemplated. The earlier cases seemed
to warrant an absolute division of the cases into two classes ; one
of appointments to the beneficiary direct, and the other of
appointments to a trustee for such beneficiary, whether also
executor or not {Lefeire v. Freda nd, 24 B. 403). But the later
authorities do not bear out such a division. The following pro-
positions are submitted as guides to the discovery of the intention
of the testator.
Three rules as (1) If there be an appointment to trustees for the appointee,
STvei^'.*" *^'" and the latter predeceases the testator, the inference is that the
testator intended to withdraw the appointed fund from the
operation of the instrument creating the power, and to vest it in
the trustees of his will, who hold it upon the same trusts as if it
had been the appointor's own property {Chamberlain v. Hutchin-
son, 22 B. 444 ; Wilkinson v. Schneider, 9 Eq. 423 ; He Davies,
13 Eq. 166). It is a mere case of resulting trust; the persons
entitled in default of appointment have no equity to make the
trustees of the will trustees for them ; and the trust can there-
fore result only for the benefit of the testator and his estate
{Re Van Harjan, 16 Ch. D. 18).
(2) But the same inference does not arise if the testator does
not appoint to trustees of his own, but directs the trustees of the
instrument creating the power to hold a specific property in
ti-ust for a person who predeceases him {Re Thurston, 32 Ch. D.
508). The testator may, however, show by other means that
he makes the property his own ; and in that case the fact that
the trustees of the instrument creating the power are directed to
hold on trust for appointees who predecease the testator, is not
enough to exclude the inference {Re Pinede, 12 Ch. D. 667).
In that case the testatrix, in exercise of a general power in a
settlement, appointed that the trustees of the settlement should
stand possessed of the trust funds on trust to pay certain legacies,
which by reason of lapse and other cii'cumstances did not exhaust
the funds, to certain persons named. She gave her husband
2,000/. contingently, and authorized her executors to pay it
unless she gave them notice in writing to the contrary during
EXTENT OF EXECUTION liY WILL. 2.*39
her life. She directed payment of her funeral and testamentary
expenses by her said trustees out of her said trust property, and
gave all tlie residue of her property to her nephew, who pre-
deceased, her; and she appointed two of the tliree trustees
of the settlement and anotlier person executors of her will.
Jessol, M. R., held that the testatrix had made the fund her
own for all purposes ; and see Brickenden v. Williams (7 Eq.
310), where the trustees to whom the appointment was made
were also executors.
In Goodcre v. Lloi/d (3 Sim. -338), where A. had power to
appoint 700/., and Ly her will apiwiuted it to X., Y., and Z.,
in trust, and appointed them executors, but never declared any
trusts of the 700/. ; and she also bequeathed all her personal
estate to X., Y., and Z., i)i tnisf, subject to payment of debts
and legacies : it was lield that the 700/. went to the person
entitled to A.'s residuary estate. In Lcfcvre v. Freeland (24
B. 403), A., under a general power, appointed by will to X. and
Y. on certain trusts, which did not exhaust the fund, and
bequeathed to X. and Y. her residuary estate upon certain
trusts after payment of her debts, &c., and appointed B. and C.
executors. It was held that the sm-plus formed part of the
appointor's estate, notwithstanding that the trustees were not
executors.
(3) If there be an appointment to A., who dies before the
testator, no inference can be drawn from the mere appointment
by itself of an intention to make the property the testator's
own for all pm-posos [Re Dacies, 13 Eq. 1G3). But there may
be other indicia, such as treating the appointed fund and the
testator's own property as one mass, and charging the entirety
witli debts and expenses and appointing executors, which will
enable the Court so to hold [Re lekeringill, 17 Cli. D. 151 ;
Willoughhy-Osbornc v. Uolijoake, 22 Ch. D. 238), although the
appointment of an executor alone woidd probably not be enough
{Re Thur.ston, 32 Ch. D. 508).
It has been said (13 Eq. 166) that tliere is '* great difficulty
in construing an appointment of, for instance, an equitable
interest in a money fund to A. in trust for B., as differing from
240 A CONCISE TREATISE ON POWERS.
an appointment of the same fund to B. ; and doubts might be
suggested as to the elf ect of such a gift where A. died before the
testator as well as B., or where there is an appointment, for
example, to a person in trust for A. for her separate use, with
remainder to her children, no executor being appointed, and
there being no children."
It has been suggested that the testator knows that when an
appointment is made to A. in trust for B., the appointed fund
becomes assets for the payment of debts, whether B. predeceases
the testator or not {Re Van Ilagan, 16 Ch. D. 18) ; and that
this may be a reason for holding that an appointment to a
trustee for the appointee is effectual, although the appointee
predeceases the testator. But it may be doubted if there is
any distinction between the two cases. No authority has yet
determined whether an appointment by any one, not being a
married woman, to A., which lapses, does or does not make the
appointed fund assets for payment of the testator's debts; it
does so if the appointment is residuary, and debts are directed
to be paid {Re Davies, 13 Eq. 163). In that case, S. D.
who had a general power under her husband's will, after
directing tliat her debts should be paid, and giving pecu-
niary legacies, bequeathed the residue of her personal estate to
M., E., W., and J. equally, and appointed an executor. M. and
J. died in the testatrix's lifetime. V.-O. Wickens said that
there was such an appointment as, under the old law, would
have made the fund assets for the payment of debts, and, under
the new law, for the payment of legacies also. Then there was
a general gift and appointment of residue which failed as to
two-fourth parts : the question was whether those two-fourth
parts (after payment of all debts and legacies) were effectually
appointed for every purpose : no authority seemed to go so far,
and he accordingly held that the two shares went as in default
of appointment to tlie husband's next of kin.
This was followed in Re Be Lmi (3 L. E. Ir. 232). In that
case a married woman, having under her settlement a general
power of appointment by will over a fund, made her will which
she declared to be an appointment as well of all the estates and
EXTENT OF EXECUTION BY WILL. '^^^
property comprised in her settlement subject to lier husband's
life interest as of all other property of which she might die
seised or possessed or have power to appoint, and thereby ap-
pointed part of the fund in favour of A. and his children, and
in default of any child of A. she appointed that such part of the
fund should fall into her residue ; and she appointed B. her
"residuary legatee and appointee," and appointed executors.
B. predeceased the testatrix; and it was held that the surplus
portion of the fund, over and above that portion appointed in
favour of A., lapsed by the death of B., and passed as unap-
pointed to the persons entitled in default of appointment.
On the other hand, in Ee Ickeriiigi/l (17 Ch. D. 151), a testator
gave a fund to A. upon trust to pay the income to B. for life for
her separate use, and after her death in trust as B. should by
deed or will appoint, and in default of appointment for A. abso-
lutely. A. was also made residuary legatee and sole executor.
The money was invested and the income paid to B. for life. B.
having no other property, by her will gave all her money and
securities for money, fui'nitui'e, and all other her personal estate
and effects, and property, and all her real estate (if any) to her
sisters, X. and Y., appointed Y. sole executrix and charged all
her property and effects with the payment of her debts and
funeral and testamentary exj)enses. Y. predeceased B., and X.
was appointed administratrix of B.'s will. Hall, V.-C. held that
the part which lapsed by Y.'s death went to the next-of-kin of
B., subject to its proportion of the debts, &c., and not to A., as
claiming imder the original will. The V.-C. distinguished the
case from Be Davies (13 Eq. 163), on the ground that in the
case before him the testatrix had purported to dispose of real
estate, there being none subject to the power, and charged the
whole of the property disposed of with debts, thereby sho-vsing
clearly her intention to treat the whole as her owti property.
And in WiUoughhy-Oshorne v. Hohjoake (22 Ch. D. 238), a
testatrix, having thi-ee general powers of appointment over real
and personal estate, which was subject to gifts over in default of
appointment, made her will which she desii-ed should operate
upon all property in which she had any interest or over which
r. ^
woman.
242 A CONCISE TREATISE ON POWERS.
site had any power of appointment or disposition ; and thereby
after gi%'ing various legacies she left and appointed all other
jtroperty which she had power to dispose of between A., B., and
C, and she charged the property with her debts. The will con-
tained a direction that " all my jewellery not mentioned in this
my will shall be sold and the proceeds shall fall into my residuary
estate," and X. and T. were appointed executors thereof. A.
died in the lifetime of the testatrix ; and Fry, J., held that upon
the will the testatrix had, by treating all her property as one
general lump and subjecting the whole to her debts, evinced the
intention of making the appointed property her own, and that
the persons claiming in default of appointment had no title to
the share which had lapsed by A.'s death; (and see Aft. -Gen. v.
Brachenhury, 1 H. & C. 782, post^ p. 245 ; and cf. Re Vizard,
1 Ch. 588).
When the It was held by V.-C. Kindersley that different considerations
appointor is a . .
married applied to cases where the donee of the power is a maiTied
woman. In Iloarc v. Osborne (12 W. E. 661, 33 L. J. Ch. 586),
a married woman, donee of a general power of appointment,
appointed by will to three trustees on certain trusts, under which
the ultimate residuary beneficiaries were the trustees themselves.
One of the trustees died before the testatrix ; another attested
her will. It was held that the gifts to them which laj)sed went
as in default of appointment. V.-C. Kindersley thought that it
was inconsistent to impute to the donee, who was a married
woman, an intent to make the appointed property her own, when
she could only do so for her husband's benefit : he said that if
you imputed to the married woman an intention by means of
the first appointment to make the property her own, it was im-
puting to her an intention so to deal with the property as to
render herself perfectly incapable of dealing with any part of it.
It is to be observed, however, that it was the married woman's
Kill that was to have this effect : she could not deal with the
fund after her death, and there seems no impossibility in suppos-
ing that a married woman should intend to take property entirely
out of settlement, although one result may bo that her husband
would benefit. Hoare v. Oshorne might perhaps be regarded as
EXECUTION BY WILL, 24'i
an intermediate case between Re Davies and Wi/kinso)/ v. Schneider
(9 Eq. 423), for the appointees were botli trustees and bene-
ficiaries.
And the V.-C.'s decision has not been followed in lie De Lm^i The distinc-
(3 L. R. Ir. 232) ; Re Pinede (12 Ch. D. GG7) ; and WUloi'ijhhy- tZ^^.
O-shonie V Hoh/onke (22 Ch. D. 238). In the last case Fry, J.
said that the sound conclusion from such a will of a married
woman was that the appointment should operate ; but that it
should operate as if the property had been the married woman's
own property. In that way both the expressed intentions are
given effect to, viz., the expression of intention that the property
shall be disposed of, and the expression of intention that it shall
be treated as if it were her own. This must mean her separate
property ; (see Re Roper, 39 Ch. D. 482, 491, and sect. 4 of the
Married Women's Property Act, 1882).
An appointment by deed by the donee of a general power If the ap-
over a fund to his own executors and administrators, gives the to executors
absolute interest to himself {Mackenzie v. Mackenzie, 3 Mac. & Gr. fund b!>'eJme8
559). It follows that an appointment by will to the appointor's v^^-'^ of t^^e
appointor's
executors and administrators, followed by directions which either property.
fail or do not exhaust the fund, makes the appointed fund part
of the appointor's assets. If, therefore, the appointment be to
executors as executors and if the appointed fund be treated as
blended with the appointor's own property, that will afford
ground for presuming that the testator intended to make the
fund his own for all purposes.
In Brickenden v. Williams (7 Eq. 310), the donee of a general
power gave all her real and personal estate over which she had
any disposing power to her executors, and gave several legacies
which did not exhaust the fund. V.-C. James held that she
meant to make the fund part of her general estate, because she
not only gave it to her executors, which he thought almost con-
clusive, but, having given it to the executors, she proceeded to
speak of it as her propertn. She treated everything over which
she had any power of testamentary appointment (and which
would have included any savings of her separate estate) as one
r2
244 A CONCISE TEEATISE ON POWEKS.
mass, gl^'illg it as one mass to her executors as executors, and
constituting it one property, to be dealt Avith as her will directed.
In Brisfow v. Skiiroic (10 Eq. 1), the Master of the EoUs said
the result of his own decisions amounted to this : " The donee
of a power gives property to his executors: thereupon the
executors take it as part of the property of the appointors, and
as in that character they do not take it beneficially, they take it
in trust, that is, first to pay creditors, and then the legatees, and
if there are no legatees, then in trust for the next of kin of the
appointor."
In Chainhcrlain v. Hutchinson (22 B. 444), the donee of a
general power over a fund which was limited over in default of
appointment, appointed it to her executor, and charged it with
payment of her debts and legacies, and gave half the residue,
composed of the appointed fund and her own property, to A.,
who predeceased her. It was held that the moiety of the fund
subject to the power passed to the appointor's next of kin, as
part of her estate.
Where trus- The result is the same where the settled property is appointed
tees to -whom • ■, • ^ • ^ ^ l -2 la
appointment to trustees wlio are not identical with the executors, ii the
identical with appointed property be treated as blended with the appointor's
executors. ^^^ property [Lefcvre v. Freeland, 24 B. 403).
In Re Finede (12 Ch. D. 667), two funds, amounting to
11,000/., were by settlement vested in A., B., and C. upon such
trusts as X., the wife, should by will appoint, and in default
upon other trusts. X., having no other property except some
H. stock, belonging to her for her separate use, and some
savings from her separate estate, made her will, whereby, after
reciting that under the settlement the funds were vested in
A., B., and C, she, in execution of the power thereby re-
served to her, directed them to stand possessed of the funds in
trust to pay certain legacies amounting to 6,100/. She be-
queathed 2,000/. to her husband, and also her II. stock, and
directed that her funeral and testamentary expenses should be
paid " by my trustees out of my said trust property," and that
the legacies should be paid free of duty. She gave " all the
residue of my personal estate " to Y., and appointed A., B., and
EXECUTION BY WILL. 245
D. executors. Y. predeceased lier. It was held by Jessel,
M. 11., that the testatrix had treated the settled fund as her
own, and that such part of it as Avas undisposed of foil into the
residue, and, owing to the death of Y., was to be dealt with as
the testatrix's own property and went to her husband.
And the same rule applies to real estate. In Re Van Ilafjan
(16 Ch. D. 18), a widow, having a general power of appoint-
ment by will over a share of real estate, gave all her real estate,
including that over which she had the power, to A., B., and C.
in trust for X., who predeceased her, and she appointed A., B.,
and C. executors. It was held that the testatrix had taken the
appointed property out of the settlement, and had made it her
own, so that there was a resulting trust for her heir ; (and see
ReJIortou,bl L. T. 420).
The same principles apply in the case of disclaimer as in the Lapse by '
^ *• ii^ /iTTpn disclaimer.
case of death. In Aftonicif-Gencral ^. Brachcnhunj (1 11. cc C.
782) the donee of a general power of appointment by her A\ill
directed payment of her debts, and gave legacies, and bequeathed
all the residue of her property to A., B., and C, who were the
persons entitled in default of appointment, and appointed C, D.
and E. executors. If the legatees took imder the will, duty
would be payable at 5/. per cent., if under the gift in default of
appointment, at 3/. per cent. The head note states the decision
to have been, that if the testator has in the first instance charged
his residuary estate with payment of debts and legacies, it is not
competent for the residuary legatee to disclaim the fund under
the appointment, and elect to take under the gift in default.
But this is perhaps hardly a correct summary of the judgment.
The Court was of opinion that the testatrix had by her appoint-
ment made the property her own for all purposes, and that the
gift in default of appointment could not take effect.
47. If the power be limited, the donee cannot appoint so as to Lapse of ap-
, . „ , • 1 pointments
make the property subject to it his own m ease ot lapse ; m sucii unje^ liniited
cases the question is, whether the appointment lapses entirely, po'^-^^^s.
or whether there are other words of appointment under which
the lapsed share will pass : and in considering this latter alterna-
tive it must be remembered that the word " devise," in sect. 26
246 A CONCISE TEEATISE ON POWERS.
of the Wills Act, does not include an appointment under a special
power {Ilolyland v. Leicin, 20 Ch. D. 266, oveiTuling Freme v.
Clement, 18 Ch. D. 499).
The same question may arise in cases of general powers ; but
it must be remembered that since the Wills Act, a general re-
siduary gift operates as an execution of general powers, and that
a residuary gift will carry a lapsed appointment as well as a
laj)sed legacy.
Appointments If the donee of a power, whether general or limited, appointed
^S"""* to A., B., and C. one-thii'd each of the fund subject to the
power, no appointee could under that gift take more than is
Appointment given to him, viz., one third. So, if there be a definite ascer-
and K-siduHf Gained sum, subject to a power, and the donee thereof appoint
a definite sum. \^y ^^iH one sum, part of the fund, to one person, another sum,
other part of the fund, to another person ; and " all the rest " or
" all the remainder " of the fund to a third, the third appointee
cannot claim any share which may lapse in consequence of the
death of either of the fonner appointees in the testator's life-
time, if on the true construction of the appointment all that is
intended to be given is a sum arrived at by subtracting the pre-
\iously named sums from the whole fund. " If a testatrix has
power to dispose of a definite sum, e.g., 600/., and says, ' I give
100/. to A., 100/. to B., and the remaining 400/. to C.,' of course
■ the simi of 400/. is given just as specifically to C. as the two
sums of 100/. each are given to A. and B. If, instead of using
that language, the testator says ' I give 100/. each to A. and B.,
and the remainder to C.,' without specifying the amount of the
remainder, the Court has held, in the absence of anything
showing a different intention, that the intention was to give the
remainder as a specific sum to C. just as specifically as the
property to A. and B. " {2)0' Kindersley, Y.-C, in Harley v.
Moon, 1 Dr. & Sm. 623, approved by Lord Hatherley in Bakcv
V. Farmer, 3 Ch. at p. 540 ; and see Easum v. Am:)leford, 5 M.
& C. 56 ; Ee Harries, John. 199 ; Laldn v. Lakin, 34 B. 443 ;
Swete V. Tindall, 31 L. T. 223).
Residue as But if the intention is to appoint the residue strictly as residue,
fund charged or to appoint the entire fund charged with the sums specified in
•with srifts.
EXECUTION BY WILL.
247
the preceding appointments, then the residuary clause will be
read as an appointment, not of the mere balance of the fund
after the sums previously appointed have been deducted from it,
but of the entire fimd subject to the appointments previously
made, the Court acting on the manifest intention of the testator
to dispose of the entire fund over which he has a power of ap-
pointment {Ec Harries, ibid.).
The same rules apply, whether the appointment fail by the
death of the appointee, or by reason of his being a stranger to
the power {Fal/ain- y. Bidler, Ambl. 514). "I do not think
that there is any sound distinction between cases of lapsed and
cases of invalid disposition, whether the disposition be under a
power of appointment, special or general, or in exercise of owner-
ship " {per Hall, V.-C, in Champney v. Danj, 11 Ch. D. at p.
958). The word "special" appears to have been inserted by
the Y.-Q. per Incuriam (see Uoh/Iand y. Leiciu, 26 Ch. D. 266).
In that case, which arose on the 83rd sect, of the Act, Lord
Selborue distinguishes between general and special powers in
relation to lapse, and points out that " an appointment under a
limited power operates by virtue of the instrument creating the
power, the execution when valid being read into and deriving
its force from that instrument. If the execution of the power
must or may be by will, it must be a will duly executed and
attested as such according to law ; and the word ' will ' in the
statute extends to such a testamentary appointment. But that
condition being complied mth, the execution operates in the
same way after the death of the appointor as if the instrument
were not testamentary." This overrules Frcme v. Clement (18
Ch. D. 499).
In Easum v. Apple ford (5 M. & C. 56), the donee of a general Cases wliere
^ -^ ■ ^ lapsed ap-
power appointed that a fund of 3,000/. should be transferred to pointmeut did
trustees, on trust as to 2,700/. for his mother, as to 250/. for "''* P''*^"
another person, and as to the residue on certain other trusts.
This residuary appointment, it was held, could not pass the
2,700/. which lapsed by the death of the appointee in the testa-
trix's lifetime. The Lord Chancellor said: ''Uad the whole
fund been 900/., and 300/. of it liad been given to the first
248 A COXCISE TREATISE ON POWERS.
legatee, and 300/. to the second, and the 300/. which mil
remain, after paying those two legacies thereout, to the third,
no question could have arisen : and wherein is the difference?"
In SaMifey. Rampson (1 Jur. N. S. 1104), a testator, ha^-ing
power to appoint real estate among children, -wdth a gift over to
all the children in default of appointment, devised the estates
upon trust for sale and declared the trusts of the proceeds in
equal sixth shares — there being sis children of his marriage —
as to one-sixth part in trust to pay to A. (a son) 150/., to B. (a
son-in-law) 120/., and to C. (another son) 30/., " and as to the
residue of the said one-sixth share " upon trust for a daughter
D. for her separate use for life, and after her death to stand
possessed of " the share to which she should become entitled
during her life as aforesaid, of and in the said trust moneys,
stocks, funds, and securities, and the interest, dividends, and
annual income thereof," in trust for D.'s children. As to all
the remaining sixths he gave them in trust for all his other
children by his then wife, and the child or children of any then
deceased or who might die in the testator's lifetime. One of the
other children, X., died in testator's lifetime leaving a son.
It was held by Y.-C. Stuart that the 120/. appointed to B. was
an invalid appointment as being to a stranger, and went as in
default of appointment, not into the residue of D.'s one-sixth,
and that X.'s one-sixth did not go to her son, but went as in
default of apppointment.
In Be Jeaffreaon (2 Eq. 276), the donee of a limited power
appointed 100/., part of the fund subject to the power, to a
stranger, and appointed the balance of the fund, after payment
of legacies, to objects of the power, which balance amounted to
260/., to pay her own debts : and " should any surplus remain "
she gave it to A., an object of the power. The 100/. appoint-
ment failed ; it was held that it did not pass to A. under the
gift of the surplus; (and see Willdnson v. Schneider, 9 Eq. 423).
Ca-osin In Oke V. HeatJi (1 Yes. sen. 135), a testatrix had a power of
appointments appointment among her kin : she appointed the whole fund to
passe . j^g^ nephew, and " all the rest and residue of what she had
Residue as . m i • mi • • i
residue. power to dispose of to her niece. The nephew died m the
LAPSED APPOINTMENTS.
249
testatrix's llfetinio, cand the fund passed to the niece. It was as
if she had said in so many words, " If anything which I liave
given by my will fails, I mean to sweep into this residuary
bequest all that may so fail" ; (see lie Harries, John. 20j, and
Fa/k)irr v. JBuf/cr, Ambl. 514).
In Pie JTiiiif (.'U Ch. D. 308), testatrix having a power by
will to appoint a fund among her children, appointed three-
fourths to her children A., B., and C, and the remaining fourth
to her grandson ; and "all the rest residue and remainder of my
personal estate and effects whatsoever and wheresoever, and of
what nature or kind soever, and over which I have any power
of disposal by this my will " testatrix gave to B. and C. equally.
The appointment to the grandson being in excess of the power
failed, and the share appointed passed under the appointment
of residue; (and see lie Crmcshaij, 43 Ch. D. 615 ; Be Meredith,
3 Ch. D. 757; DK(juid v. Frcif^er, 31 Ch. D. 449).
In Champneij v. Davij (11 Ch. D. 949), a testatrix bequeathed
personal estate to trustees upon trust for A. for life, and after
her death as to 2,000/. part thereof, upon trust for certain charit-
able piu'poses, and "as to the residue thereof" upon the trusts
declared of the proceeds of her real estate, and gave the residue
of her personal estate to A., and all her real estate to trustees in
trust for sale, and she declared that the proceeds "and the
residue of the said trust moneys, stocks, funds, and securities "
should be held in trust for the children of B. equally. Part of
the personal estate given to the trustees consisted of impure per-
sonalty, and it was held that so much of the 2,000/. as failed by
reason thereof belonged to the legatees of the particular residue
and not to A. as general residuary legatee ; (and see Re Tun no,
45 Ch. D. 66).
In Carter v. Taggart (16 Sim. 423), a testatrix (whose will Entire sum
was dated before the Wills Act) had a general power of appoint- particular
ing a sum of 10,000/. Consols: she appointed thus, "Now I do ^*^-
give and bequeath the said 10,000/. Consols in manner following,
that is to say, I give to A. 500/. sterling ; I give to my exe-
cutors 600/. Consols on trust to pay the dividends to B. during
her life, and after her decease, the said 600/. to sink into the
250
A CONCISE TREATISE ON POWERS.
How lapse
may be ex-
clnded.
Abatement
when aliquot
shares.
When specific
sums are
appointed.
Residue.
WTien
specific.
residue of my estate ; I give and beqiieatli to C, his executors
and administrators, all the rest and residue of the said 10,000/.
Consols after deducting therefrom the legacies above mentioned."
A. died in the testator's lifetime : it was held that his 500/.
passed to C. under the residuary gift ; (and see He Harries,
John. 199, where the power was special).
As the donee of a general power can appoint to whom he
pleases, he can of com-se exclude lapse by appointing to the
executors and administrators of the appointee as persons to take
in substitution for him ; but in order to exclude lapse, the inten-
tion to do so must be clearly expressed, and the persons to take
in substitution must be definitely pointed out : mere words of
limitation will not do {Broicne v. IIoi)e, 14 Eq. 343). This
could not be done in the case of a limited power, as the exe-
cutors and administrators of an object would be strangers to the
power {Maddison v. Andrew, 1 Yes. sen. 57 ; ButcJicr v. Butcher,
1 Y. & B. 79).
48. The question of abatement depends on much the same
principles as those applicable to lapse.
Where a fund is appointed by one and the same instrument
in aliquot shares, if it prove insufficient, the shares will abate
proportionately : so, too, if the donee of a power mistake the
amount of the fund and appoint more than the full amount in
specific sums, e.(j., if he have power to appoint 1,000/., and he
appoint 800/. to A. and 400/. to B. by the same instrument, the
appointees must abate rateably {Laurie v. Glutton, 15 B. 65).
In that case the Master of the Rolls said that the testatrix
believed she had power to dispose of 19,900/. Consols; she had,
in fact, only a power of appointing 10,000/. She apj)ointed
9,900/. to A. and 10,000/. to B. ; that sum was therefore to be
divided between them in the proportion of 99 to 100.
The appointment of specific sums and the residue of an
ascertained fund may or may not be an appointment of the
residue specifically according to the expressions used; but to
make the residue specific the fund must be ascertained {Petre v.
Fefre, 14 B. 197; lie Currie, 36 W. E. 752).
If there is a definite fund, subject to a power of appointment
ABATEMENT. 251
hy Avill, and a A\ill purporting to Ije made in exercise of that
power, and appointing one sum, part of the fund, to one person,
and another sum, another part of it, to another, and " all the
rest " or " all the remainder " of the fund to a tliird, this last
appointment is read as an express specific appointment of the
residue of the fund: e.f/., if the fund be 3,000/., and 1,000/. be
appointed to A. and 1,000/. to B. and the rest to C, that is read
as an appointment to C. of 1,000/. {Paf/e v. Leap'uKjwdl^ 18 Ves.
463). C. could take no more tlian 1,000/., although both A.
and B. died in the testator's lifetime and the appointments to
them lapsed {Easum v. Applcford, 5 M. & C. 56) ; although Sir
William Grant, in Page v. LeapingivcU, seems to have thought
that it might be otherwise. If, therefore, there is a deficiency
in such a case, all the three will abate rateably {Elices v. Cannton,
30 B. 551 ; and see Walpok v. Apt/iorp, 4 Eq. 37 ; IlaijncH v.
Haynes, 3 D. M. & G. 590).
In Booth V. AHiHjfon (6 D. M. & Gr. 613), there was an appoint-
ment of 30,000/., "part of" a sum of 120,000/., over which the
testatrix had a power of appointment given her by another
testator ; there was uo appointment of the residue of the
120,000/. or any part thereof, and the estate did not enable
the payment of the 120,000/. in full. It was held that the
intention was to appoint 30,000/. at all events, and that the
expression " part of " merely referred to the fund out of which
it was to be paid.
And if the intention be clear, the amount of a charge for Abatement
portions on an estate covenanted to be bought for a certain sum, proportion to
may abate if the full amount be not forthcoming to be expended '^^'^fici^Qcy of
on the purchase of the estate to be charged. charged.
In Chambers v. Chambers (Mos. 333), a father on his son's
marriage covenanted to lay out 6,000/. in the purchase of lands,
to be settled in strict settlement, charged with 2,000/. for the
portions of younger children, or 3,000/. for daughters if tliere
were no sons, and further covenanted to settle his own estate on
his son and the heirs male of his body. The money was sub-
scribed into the South Sea Company and Avas reduced to 3,000/.
Lord King held that the eldest son was not to bear the loss, but
253 A CONCISE TREATISE ON POWERS.
thai the younger cliildren slioiild abate in proportion. He read
the covenant as one to invest a sum in a particular manner, and
that the fund, being so invested, two-thirds should belong to
the eldest son and his issue and one-third to the other children.
In Miller v. Uiichnesfoiie (6 Eq. Go), a testator gave his wife
a power of appointment over 5,000/, : she appointed this sum to
trustees on certain trusts, subject to a power of appointing the
same to the amount or value of 1,000/,, therein given to two of
her nieces : the power w^as to appoint any part of the said trust-
moneys (not exceeding 1,000/.) as the donee should think fit;
and the trustees were to stand possessed of the trust-fund
(subject to the payment of the respective sums thereinbefore
mentioned, not exceeding 1,000/, each) for A, and B, The
husband's estate was inadequate to produce the 5,000/. V.-O.
Malins held that the intention was that the power of aj)point-
ment should extend to one-fifth of the whole fund, whatever
that fund might amount to ; and he held that the sums subject
to the nieces' powers of appointment must abate rateably.
"U'hen the But if the intention is to a2:)point a specific sum and a residue
the loss, strictly as residue, or to appoint the entire fund charged with
the specific sum, then in case of deficiency the residue must bear
the loss.
So, too, if the appointment is not made so as to operate on a
fund of unvarying amount, or if the appointor does not assume
that a given sum or an estate of a given value will be available,
the residuary appointment must bear the loss {Petre v. Petre, 14
B. 197; Be Lisle v. Hodges, 22 W. E. 363 ; 17 Eq. 440),
Appointments If there be successive independent appointments by separate
instnfmentl, instruments, w^hich in the aggregate more than exhaust the
fund, the latest appointment must bear the loss {TvoUope v.
Routledge, 1 De G, & Sm. 662 ; l^Mes v, Bridgman, 47 L. J,
Ch, 759; Wihon v, Kcnriel; 31 Ch. D. 658; Gilbert y. Whitfield,
52 L. J. Ch, 210), But if the appointments were all made by
one instrument which at once takes effect as to all the objects, if
the whole fund is given to several objects, one of whom is
necessarily named last, the last-named cannot be made to
bear the loss merely because he is mentioned last [Balteel v.
ABATEMKXT.
253
Plummer, 6 Ch. 160), although of course the appointor may
prefer one appointee if he chooses, but he must express his
intention clearly, and the onus lies on the person seeking to
establish priority {Miller v. lladdloitone, 3 M. & G. 513).
Where an appointment is made to take effect out of a trust
fund generally, and afterwards an appointment is made of a
specific portion of the trust fund, the portion of the fund not
specifically appointed must be first applied in satisfaction of the
first appointment, and the specifically appointed portion is only
to be resorted to in the event of a deficiency [Morgan v. Gronotc,
16 Eq. 1).
In the ordinary case of a testator who gives legacies to a Who profits
greater amount than his estate will meet, if any of such legacies ^ '^^^^'
lapse, the others benefit by getting paid in full, or at any rate
to a greater extent. And as a general rule the case is the same
if the donee of a power of appointment over a fund, which was
limited over in default of appointment, appoints it by one
instrument in such sums as to exceed its limits : if one appoint-
ment lapses, the others gain.
In Ealcs v. Brake (1 Ch. D. 217), A. had a special power to
appoint 7,000/. He appointed 10,000/. under a mistake as to
the extent of his power, and one of the appointees died in his
lifetime. The M. R. held that the fund was thereby augmented
exactly in the same way as if the testator had given pecuniary
legacies of greater amount than his whole personal estate, and
then one of the legatees had died, in wiiich case the personal
estate would have been augmented for the benefit of the other
legatees ; and that the appointees in the case before him were in
the same position ; (and see Be Li/iie, 8 Eq. 482).
The case of BarrijY. Barry (10 I. R. Eq. 397), seems to some
extent to be the converse of Eales v. Brake. In that case, B. had
a non-exclusive power of appointing by deed or will the moneys
secured by a policy on his own life. B. made his will, reciting
the power and that the amount then secured by the policy was
1,522/. ll*'. lOf/., and proceeded to appoint to thi-ee of his
children 5s. each, and to others sums amounting to 1,500/.
exactly, thus leaving a residue unappointed. There was one
object of the power to whom nothing was expressly appointed.
254 A CONCISE TREATISE ON TOWEES.
B. retained the policy in his own hands and name, and raised
money on it, so that 63G/. 10.s. 2d. only was available for the
appointees at his death. The M. E. seems to have thought the
apjiointments good because they were good at the date of the
will : scd qii. The exact order made does not appear from the
report, but it is submitted that the case might be supported as
one of general abatement, treating the unappointed residue as a
specific sum, entitled to rank equally with the appointed funds,
and not as a true residue at all.
Costs of action The general rule applied in the administration of estates that
appoinfed and the costs should come out of the residue, is not applied to the
miappointed ^^gg ^f appointments. The costs of an action relating to an
appointed fund are borne rateably by the appointed and un-
appointed funds, and not wholly by the unappointed ( Warren
V. Fostkthivaifc, 2 Coll. 116 ; Troliope v. Roiitledgc, 1 De Gr. &
S. 662; Moore v. Bixoii, 15 Ch. D. 566), in the absence of a
direction to the contrary in the wdll, as in Daries v. Fowler (16
Eq. 308). So, in Be Lambert (39 Ch. D. 626), the probate duty
and costs of probate were apportioned between the appointed and
the unappointed funds ; and see Deane v. Croft, (1892) 1 Ch. 652 ;
but in Re Wihon, 26 W. E. 848, the costs of probate were
thrown on the fund which passed by the appointment, and not
on separate property of the appointor, a married woman, which
was undisposed of; and see Re Bourne, (1893) 1 Ch. 188.
Appointed 49. Botli real and personal estate, subject to general
assets for pay- powcrs of a2Dp)ointmentj become assets for tbe
pa^Tiient of the appointor's debts, if the power is
actually exercised in favour of volunteers ; and it
makes no difference w^hether the power is exercise-
able by deed or by will, or by will only {Jenney v.
Andrew^^ 6 Madd. 264 ; Fleming v. Buchanan^ 3 D.
M. & G. 976; Williams v. Lo?jias, 16 B. 1).
It is not the possession of the power, but the exercise of it,
which gives occasion to the application of the principle : the
instrument by which it is executed is therefore unimportant.
ArPOIXTEl) PROPERTY BECOMES ASSETS. 255
" The rules of the Court are established, so far as they can,
in favour of just creditors, and to prevent persons liaving powers
from disposing thereof voluntarily to defeat creditors. On that
ground was Shirlei/ v. Lord Ferrers (7 Ves. 503 w), which has been
allowed ever since, and is agreeable to Lascelles v. Lord CormcaUis
f2 Vern. 465). A distinction was endeavoured, that the appoint-
ment by Lord Ferrers was by will, this by deed ; because who-
ever takes by will takes as a legacy. But that is not a material
distinction, for, if established, the justice intended by the Court
in tliese cases would be avoided in every instance, as then it
would be putting it barely on the form of the conveyance, and
elude the rule of justice. Nor is there any substantial ground
for this distinction ; for if there is a powder to execute by will or
deed, though executed by will, it operates not as a will to that
purpose, but as an appointment ; not as an appointment of his
own assets, but of the estate of another, and takes not place by
force of the will ; it is therefore a slight and shadow of distinc-
tion only" {per L. C. Ilardwicke, ToicmhemI v. Windham, 2
Yes. sen. 1, 10).
The rule as to voluntary conveyances is there stated to be Voluntary
that they are void not only as against subsequent purchasers conveyances.
(under 27 Eliz. c. 4), but also as against creditors (under 13
Eliz. c. 5), if the settlor was indebted at the time of making
such conveyance. But if he were not indebted at the time, it
will be good against subsequent creditors. " On that fomidation
the Courts have grounded their opinion in the execution of
powers, when they stop i)i transitu, as it is called, and say it
shall not be given away from creditors" {Ibid; and see Bai/s-
poolo V. Collins, G Ch. 228 ; Crossloj v. El worth i/, 12 Eq. 158 ;
Machay v. Douglas, 14 Eq. 106).
In order to make the fund assets for the payment of debts. The power
the power must be actually exercised {Hohnes v. CoghiU, 12 Yes. executed.
206). It is impossible, so long as the distinction between pro-
perty and power exists, to make a fund subject to a power wliich
has never been executed, assets for the pajTuent of the debts of
the donee of the power. The persons to whom the fund is given
in default of appointment, have at least an equal equity with
the donee's creditors. It rests with the donee whether he will
25 G A CONCISE TREATISE ON POWERS.
execute the power or not ; but if lie has once done so, he will be
considered to have exercised his right to intercept the devolution
of the property on the remainder-man, and equity will interpose
to give the property, if appointed to volunteers, to his creditors.
Lord Eldon in this case thought that even a defective execution
would be sufficient (but see as to this, 2^ost, " Defective Exe-
cution," 8. 7). But where trustees had advanced to the tenant
for life during her life a large portion of the trust funds, and
the tenant for life who had a general power of appointment
appointed the funds by will to her trustees, in trust to indemnify
themselves, and subject thereto for beneficiaries, and died in-
solvent, it was held that the creditors could not compel the
trustees to replace the fund {Re Neuiihani, W. N. (1881), 69).
It is sufficient, however, if the donee of a general power by his
will directs payment of his debts mthout more, and appoints an
executor, the fund subject to the power will be liable to supply the
deficiency of his own assets to pay his debts (lie Da vies, 13 Eq. 1 63) .
And it would be the same although no executor w^ere appointed
{Laiiicj V. Cowan, 24 B. 112). But the appointment of executor
without more is not such an execution of the power as to make the
fund assets {lie Dacies, 13 Eq. 163 ; i?e Thurdon, 32 Ch. D. 508).
Do appoint- 50. There has been considerable conflict of authority as to
ments by mar- , . , . , , , „
ried women property over which married women have a general power oi
property ap- appointment. A married woman in respect of her separate
pointed assets estate is considered as a feme sole ; it is clear, therefore, both on
lor payment
of their debts? principle and authority, that not only the bonds, bills, and pro-
missory notes of married women, but also their general engage-
ments, may alfect their separate estates, excej)t as the Statute of
Frauds may interfere, where the separate property is real estate
{Tullett V. Armstrong, 4 B. 319).
What is a ]3ut the term " general engagement" is an ambiguous and
general en-
gagement ? misleading one. If it is meant merely to say that goods sold to
a maiTied woman in the ordinary course of domestic life, that
contracts expressed to be made by her in respect of property not
her separate estate, e. (/., for buying, or selling, or letting, or
hiring a house do not necessarily impose a liability to be satisfied
out of the separate estate which she may happen to have, in that
sense and to that extent, the proposition that her separate estate
PROPERTY APPOINTED BY MARRIED WOMEN. 257
is not Kable to her general engagements is quite accurate. But
it would be very inconvenient that a married woman with a large
separate property sliould not he able to employ a solicitor, or a
builder, or tradesman, or hire labourers or servants, and very
unjust that, if .she did, they should have no remedy against
such separate property (L. R. 4 P. C. 594 ; and see Skinner v.
Todd, 30 W. K. 267).
But prior to the Married Women's Property Act, 1882, the What sepa-
general engagements of a married woman could only be enforced liable to
against so much of the separate estate to whicli she was entitled, entragements
free from any restraint on anticipation, at the time when the g^^ccll W.P.
engagements were entered into, as remained at the time when Act, 1882.
judgment was recovered {Pilic v. Fltzfjihhou, 17 Ch. D. 454), and
since that Act, it is still necessary to sliow that tlie married woman
had free separate property at the date of the contract {Pal/i.^cr v.
Gurne!/, 19 Q. B. D. 519 ; post, p. 265).
It is not easy to reconcile the cases which have decided that Appointment
-by -n-ill, how
property, appointed by a married woman s will under a general far assets for
power of appointment by deed or will, is assets for payment of JJf!v,™^(^ mar-
her general engagements with the principle enunciated in Fike ^^^'^ woman.
v. Fdzfjibhon.
In London Chartered Bank, See. v. Lenipriere (L. R. 4 P. C. Limitations
. which amount
572), the Privy Council held that a gift to a married woman to an absolute
for her separate use for life, with remainder as she shall by
deed or will notwithstanding coverture appoint, with remainder
to her executors and administrators, is equivalent to an absolute
gift to the sole and separate use of the lady. Such a form of
gift to a married woman without any restraint on anticipation,
vests, in equity, the entire corpus in her for all purposes as fully
as a similar gift to a man would vest it in him. Consequently
an appointment by %\dll by a married woman in such a case
makes the fund liable to her general engagements. But this
case apparently rested on the remainder to tlie executors and
administrators of the married woman, and the limitation was
held equivalent to absolute property (see ibi(/., p. 505). And
the same remark applies to Mai/d v. I^eld, 3 Ch. D. 587. So,
in Johnson v. Gallagher (3 De G. F. & J. 494), the property
F. s
258
A CONCISE TREATISE ON POWERS.
was limited to sucli persons as the married woman should
appoint, and in default to herself for her separate use ; (it is of
course immaterial whether the estate precedes the power or the
power the estate, 3 Ch. D. at p. o93). In lluhnc v. Tounit
(1 Bro. C. C. IG), the limitation in default of appointment was
as to the realty to the heirs and assigns, and as to the personalty
to the executors and administrators of the married woman. In
Fivhl V. iioide (4 Russ. 112), the remainder in default of
ajipointment is not stated : and it is to be observed that the
only decree was for satisfaction out of the rents and profits of
the property to which the married woman was entitled for her
separate use for life without any restraint on anticipation. In
Huhne V. Tenant, supra, the L. C. said tliat he could not make
the married woman exercise her power. Tlie case of the Duke
of Bolton V. Williams (4 Bro. C. C. 297), was not a case of a
power at all. In Ourns v. Dicletison (Cr. & Ph. 48), the de-
cision was mereh^ that, although in strictness a married woman
cannot contract debts, yet if, by will in execution of a power,
she directs payment of her debts, her general engagements are
intended by this term. In Heath'// v. Thomas (15 Ves. 596),
the power was testamentary only, and the limitation in default
was to the statutory next of kin. In Stead v. Clay (4 Russ. 550),
the L. C, at p. 556, certainly treats the property which a
married woman had appointed by her will under a general
power as her ^jroperty and subject to the payment of all debts
to which she was liable. In Hughes v. Wells (9 Ha. 749, at
p. 773), V.-C. Turner says: "I see no reason why, the wife
having been constituted a feme sole by the terms of the settle-
ment, her assets, includimj the trust funds which have beeoino her
assets by tJie exercise of the poKcr, should not be bound to the
same extent as the assets of any other person, not under the
disability of coverture, woidd under tlie same circumstances be
bound." This is merely a dictum, and it does not appear
wliether the V.-C. intended to refer to all cases of apj)ointments
or only to such as were prior to the general engagements. The
same learned judge, when L. J., in Jo1i)iho)i. v. Gallagher
(3 De G. F. & J. 494, 517), divides the cases on the subject
PROPERTY APPOINTED BY MARRIED WOMEN.
259
into three heads — (i.) Where the power of appointment is
general, by deed, or writing, or will ; (ii.) Where it is by will
only, and tlie power has been exercised ; (iii.) AVhere there is
a limitation to third persons in default of appointment, and the
power has not been exercised.
In this last case, the debts and engagements of the married
woman cannot prevail against the title of the persons entitled
in default of apiiointment. It can make no difference whether
a man or a married woman be the donee of the power if it be
not exercised.
Where the power of appointment is exerciseable by deed "When the
or by will, the Lord Justice sums up the law on the subject deed or will,
thus (p. 518) " In this case the Courts have certainly held the Uabi'e.'^'^ ^
corpus of the property to be subject to the debts and engage-
ments of the married woman {AUen v. Papirort/i, 1 Ves. sen. 163;
Hn/me v. Tenant, I I3ro. C. C. 16 ; Heath'// v. Thomas, 16 Ves.
596) ; although it is to be observed that dm-ing the life of the But only to
married woman, the Court has never gone further than to affect interest
the limited interest {Hahne v. Tenant; Field v. Sowle, 4 Buss, ^^^f^*^^
112). There has been much question on what grounds the woman's life.
Court has thus subjected the corpus of the property to the debts.
In most, if not all, of these cases, the liability of the corpus has
been put upon the ground that the instruments by which the
debt was created or secured, operated as executions of the power
of appointment;* but it seems clear that such instruments
cannot operate as appointments in the strict sense of the term.
They do not take effect according to their priorities. They
create no lien or charge {Ilulme v. Tenant; Duke of Bolton y.
Williams, 4 Bro. C. C. 297; Oicens v. Dickenson, Cr. & Ph. 48).
Lord Cottenham in the last of these cases, after giving his
opinion that transactions of this description have no resemblance
to the execution of powers, has said that what they are it is not
easy to define, and no doubt tlioro is much difficulty in defining
them. Perhaps the nearest approach to a definition of them
may bo, that they are transactions which create a debt payable
* This was one of the grounds of the decision in London Chartered Bank v.
Lempriire, L. R. 4 P. C. 572, at p. 590.
S 2
260 A CONCISE TREATISE ON POWERS.
out of the separate estate, and out of that estate only, and which
in that sense, but in that sense only, have the character of
appointments ; and this perliaps is what Sir John Leach may
have meant in F/ch/ v. Soic/e, where he speaks of the Court
acting on the security of the wife, not as an agreement to charge
her separate property, but as an equitable appointment." He
then proceeds to give other reasons for considering the doctrine
of appointment exploded, and asks how then do they operate ?
*' I think the answer is to be found in Hulme v. Tenant. When
a man contracts debts, both his person and his property are by
law liable to the payment of them. A Court of Equity having
created the separate estate, has enabled married women to con-
tract debts in respect of it. Her person cannot be made liable
either at law or in equity, but in equity her property may.
This Court therefore, as I conceive, gives execution against the
pro^ierty, just as a Court of Law gives execution against the
property of other debtors. Hulme v. Tenant seems to have
proceeded on this ground, and Lord Eldon seems to have con-
sidered it to be the right ground, for in Nantes v. Corrock (9
Yes. 182) we find him refusing to enforce the claim of a creditor
against the separate estate, on the ground that it consisted of
stock, which could not be taken in execution at law. In my
opinion, this is the true footing on which these cases stand. It
is to be considered, then, what are the consequences which
result ? A legal debtor may alien his property before it is
bound by judgment or execution. Why may not a married
woman do the same as to her separate property ? Her creditors
are not appointees of the property. They have no charge or
lien upon it. She may contract other debts, and all her
creditors will be \)Qi^ j^ari passu [Anon., 18 Ves. 258). She may
thus exhaust the fund by contracting fresh debts. Why may
she not mortgage or alienate it ? There is no instance, so far
as I am aware, of this Court having restrained her from doing
so ; nor, so far as I can see, any principle on which such a
restraint could be imposed. I think, therefore, her power of
alienation remains, notwitlistanding any debts which she may
have contracted. A Court of Equity will indeed, as it seems,
PROPERTY APPOINTED BY MARRIED WOMEN.
261
enforce the right which she has created against her separate
estate, after the determination of the coverture, or after her
deatli {Field V. Sowle ; Nail y. Punter, 4 Sim. 474). But in so
doing it proceeds, as I apprehend, upon this principle— that
having created the right as a frmc sole, slie cannot, when she
has actually become so, be permitted to disturb it."
But it is difficult to see how the Court can give such equitable Criticism of
distinction
execution as is mentioned by the Lord Justice agamst any pro- between
perty to which tlie married woman was not entitled at the date gt^^omj (.lass
of the contract; and the reasoning of Kay, J., in lie Roper (39 ''l;^^^^^^^^^
Ch. D. 482), appears as applicable to the case of a power to ap- classification,
point by deed or will as to that of a power to appoint by will only.
The existence of the power to appoint by deed, unexercised at the
date of the contract of the married woman, cannot, it is sub-
mitted, make any difference, so long as the distinction between
property and power is as well settled as it is at present {Ex ]).
Gilchrid, 17 Q. B. D. 521). If the estate over which the
power extends cannot be made available for the general engage-
ments of the married woman in bankruptcy, in cases where she
can be made bankrupt (as it cannot according to Ex 2)- Gilchrist),
it is difficult to see how it can be made available in the adminis-
tration of her estate after death, in eases where the power has
been executed after the general engagements have been entered
into. And in Shattock v. Shattoek (2 Eq. 182), Eomilly, M. E.,
held that property appointed by the will of a married woman
who had a general power of appointment by deed or will was
not assets for payment of her debts ; (and see Adamson v. Ham-
mond, L. E. 3 P. & D. 141 ; Re Hastings, 35 Ch. D. 94).
In Vauglian v. Vander-stajen (2 Drew. 165), the Vice-Chan-
cellor, after pointing out the distinction between property in
which a married Avoman had a separate estate, and a power
vested in her, held that the exercise of a power of appointment
by will did not make the property appHcable to the payment of
her engagements in the natm-e of debts — viz., of such engage-
ments as would be charges on her separate estate, lie showed
that the execution of a power by will over a reversionary interest
expectant upon the appointor's death could not make the pro-
perty appointed her separate estate : and if not, it could not bo
262 A CONCISE TREATISE ON POWERS.
applied in payment of lier debts or engagements in tlie nature
of debts, to the payment of whieli nothing is applicable but
separate estate. But on further consideration, in Vaughau v.
Vanderstegen (2 Drew. 363), the Vice-Chancellor held that,
fraud having been practised by the married woman, the cre-
ditors were entitled to the appointed fund. He in fact held
that the fraud made the appointed estate part of the general
assets of the married woman. On this the Privy Council remark
(L. E. 4 P. C. 596) : " It is not easy to see on what principle
the fraud could alter the nature of the property subject to
appointment, or affect the appointees. It is easy to see how
fraud might make that a debt, to which the married woman
would be in equity liable, notwithstanding her coverture, and
that, there being such a liability or debt, equity would deal with
any property to which she was, notwithstanding coverture,
absolutely entitled, and any property over which she had a
general power of appointment, exactly as it would do in the case
of a man or fone sole dying indebted. Given the relation of
debtor and creditor in equity, all the consequences of such
relation would appear to follow, just as if there were no cover-
ture in the case."
In Ilohdai/ V. Peters (2) (28 B. 354), the M. R. says (p. 358),
" If a general power of appointment is expressly given to a
married woman over any property or any interest in property,
such property or interest does not thereby become settled to her
separate use, nor does it become so by her exercising her power."
In Oatram v. Hyde (24 W. R. 268), where a married woman
had a life interest in real estate (apparently not settled to her
separate use) with a power to appoint it by will : Y.-C. Hall
said, " There is no authority that such a power vested in a
married woman makes the subject matter assets for payment of
her debts."
EesTilt of As the authorities stand at present, and apart from the
independently Married Womcu's Property Act, 1882, it is impossible to say
Act 1882. that the law is settled. It is submitted that the real question is
not whether the power is exerciseable by deed or will, or by will
only, but whether the married woman has or has not exercised
it prior to incurring the liabilities sought to be enforced against
PROPERTY APPOINTED BY MARRIED WOMEN.
the appointed property. The following propositions are sug-
gested as the result of the balance of the authorities, although
they do not reconcile all the authorities.
(i.) Where at the date when the liability -was incuiTed the pro-
perty stood limited to the married woman for her life for her
separate use, and in default of appointment by her to her heirs,
or her executors or administrators (as the case may be), it is ap-
plicable to discharge the liability. If the right depends on the
limitation in default, this should be the case, whether the power
has been exercised or not, and whether the power is exerciseable
by deed or will, or by will only. But it is not easy to see what
the limitation in default can add, unless it bo to her separate use.
(ii.) Where the property is limited in default of appointment
to third persons, it is applicable only if the power has been so
exercised as to make it the separate estate of tlie appointor, and
only to discharge such liabilities as come into existence wliile
the appointed fund remains in the hands of the trustees of the
settlement or of the married woman. The creditor has no
equity to restrain the married woman from parting with her
separate property, before he has obtained a charge on it by
judgment [Robinson v. Pickerinff, 16 Ch. D. 6G0).
It will be observed that this proposition excludes all cases
where the married woman has appointed by will : and to this
extent it is not consistent with some of the cases referred to
above.
(iii.) It is competent to a man-ied woman in exercise of her
power to charge the appointed property with payment of her
debts ; and this term will include all her general engagements
{Ou-ens V. Dickenson, Cr. & Ph. 48). And this charge may be
created by a general direction to pay debts, followed by an ap-
pointment of the property, as in the case of a man (Be Be Bitrgh
Laicson, 41 Ch. D. 568). And it has been held that when a
married woman made a will in execution of a general power, and
appointed her husband and others executors, but did not create
any charge of debts or funeral and testamentary expenses, and
her estate was insolvent, her funeral expenses were payable out
of the appointed property [Re MacJfi/n, Liyhhoicn v. JlacJIi/n,
33 Ch. D. 575).
263
264
A CONCISE TREATISE ON POWERS.
M. W. P.
Act, 1S82.
Sect. 1,
sub-sect, i
Sect. 1,
sub-sect. 3.
Sect. 1,
Bub-sect. 4.
Sect. 4.
Effect of
sect. 1, sub-
sect. 3.
Limited
application
of the Act.
(iv.) The analogy of the Statute of Limitations ai^plies to such
so-called debts [Re Hastings, 35 Ch. D. 94).
51. It is now enacted by the Married "Women's Property
Act, 1882 :
'' A married woman shall be capable of entering into and ren-
dering herself liable in respect of and to the extent of her separate
property on any contract, and of suing and being sued, either in
contract or in tort, or otherwise, in all respects as if she were a
feme sole, and her husband need not be joined with her as plaintiff
or defendant, or be made a party to any action or other legal
proceeding brought by or taken against her; and any damages
or costs recovered by her in any such action or proceeding shall
be her separate property ; and any damages or costs recovered
against her in any such action or proceeding shall be payable
out of her separate property, and not otherwise."
" Every contract entered into by a married woman shall be
deemed to be a contract entered into by her with respect to, and
to bind her separate property, unless the contrary be shown."
" Every contract entered into by a married woman with re-
spect to and to bind her separate property, shall bind not only the
separate property which she is possessed of or entitled to at the
date of the contract, but also all separate property which she
may thereafter acquire."
" The execution of a general power by will by a married
woman shall have the effect of making the property appointed
liable for her debts and other liabilities in the same manner as
her separate estate is made liable under this Act."
The effect of these sections is to abrogate the rule enunciated
in Pike v. Fitzgibbon (17 Ch. D. 454), and to remove the diffi-
culties suggested above in all cases where the Act applies. See
Cox v. Bennett, (1891) 1 Ch. 617.
But (i.) the Act does not apply to the contracts of a married
woman entered into before the Act {Cuiiohin v. Leijhmd, 27 Ch. D.
632 ; TurnbuU v. Forman, 15 Q. B. D. 234). And the exercise
of a general power of appointment by will does not make the
appointed property assets for the discharge of such engagements
[Re Roller, 39 Ch, D. 482) ; unless they are ante-nuj)tial con-
tracts {Re Parkin, (1892) 3 Ch. 510).
PROPERTY APPOINTED BY MARRIED WOMEN. 265
Nor (ii.) does the Act apply, unless the plaiutilf can prove
that the married woman had free separate property at the date
of the coutrai-t soug-ht to be enforced {He S/ia/ccspear, 30 Ch. D.
IG'J; Pa//i.icr v. Gnnir//, I!) Q. B. I). 519; Stogdo)i\.Lee, (1891) 1
Q. B. GGl). These cases were decided under sect. 1 ; but, having
regard to the concluding words of sect. 4, the same result would
appear to follow with respect to property appointed by will, which
is only made liable in the same manner as the married woman's
separate estate is made liable under the Act. If she had no
free separate estate at the date of the contract, then her separate
property is not made liable under the Act, and her appointed
property is therefore not made liable. The applicability of the
Act is obviously restricted to a considerable extent by these
decisions, as the married woman in a large number of cases has
a restricted life interest only with a power of appointment.
It is not necessary, however, that the married woman should
have free assets at the date of the judgment in order that judg-
ment may be recovered against her, at any rate, where her
liability arises, not under contract, but out of an equity affecting
her {Whittaker v. Kershaw, 45 Ch. D. 320; and see Cox v.
Bennett, (1891) 1 Ch. 617).
By sect. 1, sub-sect. 5, of the Married Women's Property When mar-
. . ried woman
Act, 1882, it IS enacted, " Every married woman carrying on a may be made
trade separately from her husband shall in respect of her separate "^ '
property be subject to the bankruptcy laws in the same way as
if she were a foinc sole." Prior to this Act, a married woman
was not subject to the bankruptcy laws, although she had
separate estate, unless she was trading in the City of London
[Ex parte Jones, lie Grisseli, 12 Ch. D. 484). And the same
rule still applies unless she is trading separately from her hus-
band {lie Gardiner, Ex parte Coulson, 20 Q. B. D. 249). And
if she is made a bankrupt, her separate life estate, which she is
not restrained from anticipating, vests in her trustee, although
such estate arises under her marriage settlement, notwithstanding
the 19th section of the Act {lie Armstrong, Ex parte Boyd, 21
Q. B. D. 264). But she cannot be compelled to execute a
general power of appointment {Ex parte Gilchrist, lie Armstrong,
17 Q. B. D. 521).
interest.
266 A CONCISE TREATISE ON POWERS.
vrhero a man 52. If a mau has both a power and an interest, and
power and an docs an act generally as owner of the land with-
out reference to the power, the land shall pass by
-sdrtiie of his owaiership, not of his power ( Cure's
case, 6 Co. Rep. 17).
But where the disposition will be absolutely void if it do not
enure as an execution of the power, effect will be given to it by
that construction (ibid). Thus, if a married woman, having
a power and an estate in default of appointment, devises the
estate, the disposition will operate as an execution of the power,
because otherwise it would fail altogether {Roscommon v. Foickc,
6 Bro. P. C. 158; Sug. Pow. 347). On the same principle,
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 {ibid).
If he both grant his estate and exercise his
power, the estate shall pass in the manner best
adapted to carry out the intention of the parties
(Cox V. Chamberlain, 4 Ves. 631).
In that case lands were limited to such uses as A. should
appoint, and in default of appointment to him in fee. A., by
lease and release, in pursuance of all powers vested in him,
granted, bargained, sold, aliened, remised, released and confirmed,
limited, declared and appointed the estate to trustees to uses.
If the deed operated as a grant, the title was good ; if as an
appointment, bad. Lord Alvanley said that it would be
monstrous to hold that, where there is a power and an interest,
and the act being equivocal, it is doubtful whether the donee
thereof acted under the one or the other, the Court should adopt
that which would defeat the instrument, and he accordingly held
the appointment nugatory. This has been applied to a lease,
which could have been, but was not, granted under the Settled
Land Act {Mugridge v. Clapp, (1892) 3 Ch. 382).
Lord St. Leonards (Pow. 357) points out that this did not
decide that where there is first a formal appointment, and then
POWER AND INTEREST.
a release or grant of the estate, the instrument sliall, in favour of
the intention, be lield to operate simply as a release or grant.
But he considers it the better opinion that it would bo operate.
However, in Roach v. WckIIkoii (6 East, 289), an estate was con-
veyed to A. and his heirs to such uses as B. should appoint, and
in default of appointment to the use of B. and his lieirs. By
this deed a perpetual rent was reserved to the vendors, and ]'.
covenanted for the payment of it. Afterwards, A., by B.'s
direction, bargained, sold, and released, and B. granted, &c., and
also appointed the premises and all his estate therein, to C. and
D. and their heirs, to hold to them their heirs and assigns as
tenants in common, subject to the rent. There were covenants
in the deed by C. and D. to pay the rent, but D. did not exe-
cute it. The Coui't held that the deed operated as an execution
of the power, and not as a grant of the interest, and that conse-
quently C. was not liable in an action of covenant for non-
payment of the rent, inasmuch as he claimed by a title paramount
to the estate of B. ; (see this case observed on, Sug. Pow. 3-59,
where it is said that the intention of the parties is the only
true test of the method in which the deed is to operate, and
that on this principle the conveyance to C. and D. ought to have
been held to operate as a conveyance and not as a mere
exercise of the power). The doctrine of Roach v. Wadltam has
been stated not to be a favourite in Courts of Equity {Child v.
Douglas, 2 Jur. N. S. 950 ; and see Spoor v. Green, L. E.
9 Ex. 99).
If he either graut his estate or exercise his
power, and full effect will not be thereby given to
the intention of the parties, the estate shall be
held to pass in the manner not expressed to be
intended in order to effectuate the general in-
tention {Tomlinson v. Digliton^ 1 P. W. 149;
Campbell v. Leacli^ Ambl. 7-iO ; Doc d. Daniel v.
Kcir, 4 M. & R. 101 ; ^Yade v. Faget, 1 Bro. C. C.
3G3 ; explained, Sug. Pow. 348).
207
268 A CONCISE TREATISE ON POWERS.
And parol evidence is not admissible to show an intention not
to exercise the power {Blake v. Jlanicll, 2 B. & B. 35).
So, if a man have a power of revocation and new appointment
over an estate, and he grant the estate to new uses without
reference to his power, this will operate as an exercise of his
power (Sug. Pow. 346). So, where the donees of a power, after
reciting the power, and that the premises thereinafter mentioned
and intended to be appointed had been conveyed to uses,
"limited and appointed," not only the lands subject to the
power, but also other lands of their own, the words were held to
operate as a grant {Macandreiv v. Gallagher, 8 I. E,. Eq. 490 ;
and see Shove v. Pincke, 5 T. E. 124, 310).
Appointor's If tliG power be executed, but prove to have
make good the becii previouslj destroyed, or to have been in its
theappomted incoption badly created, tlie donee's interest shall
make good the default in appointment.
In Mandeville v. Roe (1 J. & L. 371), estates were limited
after the death of husband and wife to trustees for a term, and
subject thereto to the husband in fee ; the trusts of the term
were, in case the wife should die in the lifetime of the husband,
leaving children living at her decease, to raise 8,000/. for por-
tions for the childi'en, to be divided between them as the husband
should appoint. The wife did not die in her husband's lifetime;
but he made his will, reciting the power, and purporting to
execute it. L. C. Sugden held that he could not correct the
settlement, or hold that the contingency on which the charge
was to arise, was unimportant. But he held that tlie testator had
perfect ability to give that which he assumed to give, not by
virtue of the power, but by force of that which came in lieu of
the power. The power was intended to be oj)erative in one of
two events ; in the other event, the estate was vested in the
husband, and supplied the place of the power ; (and see Cross v.
nudson, 3 Bro. C. C. 30 ; Mortloch v. Buller, 10 Yes. 292, 315.)
" I never heard it as a point to be maintained, that because a
man shows an intention to execute a power which he has not,
POWERS OF REVOCATION. 269
the interest which ho li.ad in the estate should not bear out the
disposition he thinks proper to make of a charge on that
estate" {per Lord Tlmrlow, Cross v. Hudson, 3 Bro. C. C. 30).
In that case, the testator had at his death no power at all, and
the will must have operated on his estate or have been wholly
nugatory. But it would make no difference whether he had no
power at all, or a power which he imperfectly executed. In
Sing V. Leslie (2 II. & M. 68), the testator's primary intention
was to execute his power, but, at the same time, there was an
equally marked intention to charge the estates ; and the question
was, whether the plain intent of the testator, to which ho liad
the means of giving effect out of his reversionary interest, and
which he certainly wished to effectuate, was to be defeated
because the testator imagined that his will could operate by way
of execution of the power. The Court carried the intention
into effect. Jones v. Southall (30 B. 187 ; 30 L. J. Ch. 875)
is to the same effect.
53. Powers of revocation and new appointment may Reservation
of powers of
be reserved toties quoties by instruments executing revocation.
a power, although such reservation be not ex-
pressly authorized by the instrument creating the
power (Sug. Pow. 387).
And where the power of appointment is to two or the survivor,
the power of revocation may be reserved to the sur\avor. In
Brudenell v. Ehces (I East, 442 ; 7 Ves. 382) , a power of appoint-
ment among children, to be executed by husband and wife jointly
or by the survivor of them, witli or without power of revocation,
w\as executed by both, reserving a power of revocation to the
survivor. The execution of the latter power by the survivor
was held valid, and this was followed in Dixon v. Pyner (34 "W.
E. 528 ; 55 L. J. Ch. 566 ; 54 L. T. 748).
But the principle of these cases does not extend to make valid
a power of revocation reserved on a joint appointment to one of
the joint donees of the power diu-ing their joint lives. In Bnr-
nahij V. Baillie (42 Ch. D. 282), a fund was settled upon trust.
270 A CONCISE TREATISE ON POWERS.
after the death of the husband and wife, for the issue of the
man-iage as they should by deed, with or without power of re-
vocation aud new appointment, jointly appoint; and in default
of such appointment, as the survivor should by deed or will
appoint ; and in default of appointment, if there should be only
one child of the marriage (which happened), then as to one moiety
of the fund in trust for that only child, and as to the other moiety
in trust for the husband. On the 11th May, 1887, tlie husband
and wife irrevocably appointed that, subject to theii- own prior
interests, one moiety of the fund should be held in trust for R.,
the only child of the man-iage, absolutely, if and when she
should attain twenty-one or marry ; and by the same deed they
a2")pointed the other moiety to R. in the same way, but subject
to a power of revocation and new appointment reserved to the
husband alone. A week later, by another deed, the wife released
her life interest in tlie fund, and also all power of appointment
over the fund; and on the 30th November, 1887, the husband
by deed-poll revoked the appointment of the second moiety to
R., to the intent that that moiety might devolve as if it had
been unappointed, but subject to any appointment to be there-
after made by him. It was held that the reservation in the
deed of 11th May, 1887, of a power of revocation to the husband
alone was invalid, on the ground that it was an attempt to dele-
gate to one the power given to both.
It makes no difference whether the power is simply collateral,
appendant, or in gross : it is well settled that those who can
make an absolute appointment can also make a qualified one
(Sug. Row. 389).
If the power be limited— <?, //., to appoint among the children
of A. — the donee cannot of course alter the objects by appointing
to the children and reserving a power of revocation and new
appointment to whom he pleases. But the formalities to accom-
pany the revocation and new appointment need not be the same
as those which were made requisite to the original execution (Sug.
Row. 367). It is conceived that a limited power, exerciseable
with the consent of A., could not be exercised, reserving a power
of revocation and new appointment without such consent.
POWERS OF REVOCATION. 271
The creator of tlie power may show that it was his intention Creator of
that a power of revocation should not be reserved, or tliat such exclude power
a power should he cxereiseahle only during a limited period. revocauoa.
" Suppose the instrument creating the power had fixed the day
when it must ho executed, it seems impossible to doubt that
revocation would liave been excluded, because there could be
nothhig more contrary to the constitution of tlie power than such
an execution of it. In like manner, I should have no doubt
that, if a power is directed to be executed on or before a given
day, a clause of revocation may be inserted, but then it can only
enable the new appointment under it to bo made on or before
the given day " {per Lord Brougham, in Piper v. Piper, 3 M.
& K. IGG : and see Cooper v. Jilnrtin, 3 Ch. 47).
54. A power, once executed, cannot be revoked, unless Power of ro-
. Ill* vocation must
a power of revocation be reserved by the mstru- be reserved by
, . , , . the instru-
ment executing- the power, altliough the mstru- ment which is
to DG rGVOKGCi
ment creating- the power authorizes revocation
ex
The rule applies whether the property subject to the power
be real or personal (Sug. Pow. 39U). This was expressly decided
in Worrall v. Jacob (3 Mer. 256), and it made no difference that
the appointor had retained the deed in her own custody ; and
the mere attempt to vary the dispositions could not of itself
prove that the omission of a power of revocation Avas occasioned
by fraud or mistake. In Jlele v. Bo]i(l (Sug. Pow. 908, Ch. Pre.
474), A. made a settlement reserving power by deed to revoke
it, and by the same deed or any other, from time to time to limit
new uses. A. revoked the settlement and limited new uses, but
reserved no further power to himself : it was lield that he could
not, by virtue of the first power, limit any other uses. The
principle of this decision — namely, that an instrument executing
a power must expressly reserve any powers which may be
intended to be retained — is an express authority for the rule
above stated, which is indeed an illustration of the general
272
A CONCISE TREATISE ON POWERS.
Reservation
of powers of
new appoint-
ment.
principle that a deed once executed cannot be revoked, unless
it reserves a power of revocation. Thus, where a voluntary
settlor, who had reserved to himself no power of revocation,
made a will by which he revoked all other wills, settlements,
and agreements for settlements theretofore made, it was held
that the will was not intended to exercise a power which did
not exist, and so to deal with property over which the testator
had no disposing power; and that therefore no question of
election w^as raised {Booker v. Booher, 34 W. R. 346) . The only
exception to this is that class of cases of which CJiadwick v.
Dolemnn (2 Vern. 528) is the first, by which appointments made
to a younger child who afterwards becomes an eldest son are
revoked, as having been made on a tacit condition. The power
to revoke the old uses which was understood to be implied in a
power to appoint new trustees of a strict settlement, might
perhaps be regarded as another exception to the rule (cf. Bishop
of Oxford V. Leigldon, 2 Vern. 376). But whether or not such a
power of revocation was in fact imphed — and it is not clear
that any authority ever so expressly decided — the point has long
since ceased to be of practical interest (see Sug. Pow. 884 ; 3 Dav.
Conv. 629 ct scq.^ 3rd ed.).
55. The same principle applies to cases where powers of new
appointment, and not merely of revocation, purport to be reserved.
A power of revocation in an original settlement authorizes of
itself a limitation of new uses (Sug. Pow. 371). But a power
of revocation in a deed crccufing a power will not of itself
authorize a new appointment. " Though no man can have a
power of revocation unless he expressly reserves it, no man can
want a power of limitation unless he excludes himself from it "
{per Lord Nottingham in Wdham v. Bland, 3 Sw. 277 n.).
The rules regulating the effect of successive executions of
powers upon the original powers and uses in a settlement, where
new powers have been reserved upon every occasion, are laid
down in Sannders v. Evans, 8 II. L. C. 721, 6 D. M. & G". 654.
These rules do not of course apply to powers which are executed
by will : for a will is by its nature always revocable {Lisle v.
Lisle, 1 Bro. C. C. 533; Lawrence v. Wallis, 2 ib. 31»).
SUCCESSIVE EXECUTIONS. 273
If there is an orie'iiuil ijower of iiijijointment, Successive
. executions of
and then an execution of tluit liower, reserving- a prim'iry
powers.
power only to revoke, followed by a revocation,
the orio-inal power remains unaffected. And if in
the first instrument executing the original power
there is reserved a power of revocation and new
ap2)ointment, such instrument does not constitute
a new settlement destructive of the first, nor is the
original power thereby exhausted and at an end,
but upon the revocation of such instrument remains
in full force. If there is a power of aj^pointment
to be exercised by deed or will, and the first instru-
ment executing the power is a deed wliicli contains
the reservation of a power to revoke and to aj^point
anew by deed, and then there is a sim2:>le revoca-
tion of this instrument, the original power on such
revocation being in full force, there may be a
valid execution of it by will as well as by deed.
In Saunders v. Evans, an estate in land was settled in 1794 to
the use of two persons successively for life, with remainder to
such uses as A. (one of the hfe tenants) should by any deed, with
or witliout power of revocation, attested by two or more wit-
nesses, or by will attested by three witnesses, from time to time
and as often as she should think fit, appoint. In 1830, A.
exercised the power by deed, reserving a power of revocation and
new appointment by deed. In 1833, a deed revoking that of
1830, and newly appointing and also reser\'ing power to revoke
and appoint anew by deed, was executed. Tliis course was
exactly repeated in 1835 by a deed of that date. In 1836, A.
executed another deed, simply revoking that of 1835. In 1848,
by a will reciting the power of 1794, A. declared the uses of the
estate. It was held that the deed of 1830 had not exhausted the
power of 1794 and substituted a new power for it to be executed
only by deed, and that consequently on the revocation in 1836
F. T
274 A CONCISE TREATISE ON POWERS.
of the last precediug deed, the power of 1794 was capable of
being exercised by A. either by deed or by will.
In Montagu v. Katcr (8 Ex, 507), there was a limitation to
the husband and wife for life, and then to their children as they
should jointly appoint with or without power of revocation and
new appointment, and in default of joint appointment, as the
survivor should by deed or will appoint. The husband and wife
appointed to a son in fee, reserving a joint power of revocation
and new appointment : they afterwards revoked this, but made
no new appointment. The husband survived his wife, and by
his will again appointed the estate to the son in fee. This was
held valid. The judges said, "By the execution of the joint
power the estate was limited to the defendant in fee. The
revocation of that appointment, also jointly made, revived the
original power of joint appointment, and with it the dependent
power of -appointment by the survivor in case of default;" (and
see Sheffield v. Von Bouop, 7 Ha. 42).
Where the The power in Saunders v. Evans was what Lord St. Leonards
is not a pri- calls a primary power — i.e., the lands were settled to such uses
mary power. ^^ ^ should appoint, and in default, over. A different question
would arise if the power were not primary — i.e., if the lands
were settled to uses with a power to A. to revoke and limit
anew.
In such a case, if the power of revocation and new appoint-
ment were executed, and then that second appointment revoked
without more, the uses of the original settlement would not be
revived. L. J. Turner, in Evans v. Saunders (6 D. M. & Gr. 678),
says, that in that case the revocation by the last deed of the last
deed but one did not operate to revive the uses limited by the
last deed but two. He thought that each revocation was absolute,
and that there was no proper analogy between that case and the
case of a repealing statute restoring other statutes which had been
abrogated by the statutes repealed. In such cases, the revival
of the original statutes takes place by virtue of the repeal ; but
in a case like Evans v. Saunders, the question must be governed
by intention, but only by intention as shown by the operation of
the deeds (8 H. L. C. 741). And this is probably what is meant
by Lord Nottingham in the third proposition stated by him in
EFFECT OF APPOINTMENT. 275
Witham v. Bland, 3 Sw. 277, n. " Wliere a power of revocation
is reserved to a stranger, he has no power of limitation unless
reserved : .secus uhl the feoffor himself has power to revoke."
In Ward v. LenthaU (1 Siderf. 343, cited 6 D. M. & G. 673),
there was a settlement with power to revoke and limit new uses ;
then there was a revocation "wdth a limitation of new uses and
with power to revoke, but with no power to limit new uses ; and
then there was a revocation of the uses limited by the first ap-
pointment with a limitation of new uses. Here, then, the exercise
of the power of revocation by the first appointment wholly de-
stroyed the uses created by the settlement. The exercise by the
second appointment of the power of revocation reserved by the
first appointment destroyed the uses created by that first appoint-
ment, but did not affect the revocation of the original uses which
had been made by the first appointment, and the consequence
was that there were no subsistiug uses ; the fee resulted to the
settlor discharged of all the uses. The settlor in that case was
the donee of the power: the result would be the same if the
donee were not the settlor — e.g., if lands were settled by a
father on a son and his issue, with a power of revocation and
new appointment to the son, and this power was executed
reserving a power of revocation; if that revocation were exer-
cised, the lands would, it seems, result to the father.
Trustees are often requu-ed to hand over trust funds, which Payment by
are subject to a power of appointment, on the assumption that out notice of'
no appointment has been made : and if they have no notice of appomtment.
any appointment, and no reason to believe that any such appoint-
ment has been made, they will not be justified in paying the
money into Court under the Trustee Relief Act {Re Cull, 20 Eq.
561) : and will be safe in paying it over to the persons entitled
in default of appointment {ibid, explaining Be WijUij, 28 B.
458 ; and see Lewin, 345, 8th ed.).
56. The existence of a power of appointment does not pre- Effect of
vent the vesting of the property subject to the power in the ojj estates
persons entitled in default of appointment, until the power be j"f '^'^^jj ^
exercised, whether such power precede or follow the limitation appointment.
or gift in default, and whether it be exerciseable by deed or by
t2
276 A CONCISE TREATISE ON TOWERS.
will {Cunningham- v. Moody, 1 Ves. sen. 174 ; Doe v. 3farfin,
4 T. E. 39, 65 ; Eeron v. SMes, 2 Dr. & War. 89 ; Fearne,
Cont. Eem. 226). Eecent decisions have thrown some doubt
on the effect of an appointment on the estates limited in de-
fault. But it is submitted that the true rule, in accordance
with prmciple, and the balance of authority is as follows : —
The exercise of a power of appointment divests
(either wholly or partially according to tlie terms
of the appointment) the estates limited in default
of appointment and creates new estates, and that,
too, whether the pro2)erty be real or personal.
The dicta of Lords Hardwicke, Kenyon, and St. Leonards in
the cases above referred to are in accordance with this, although
the point actually decided in those cases was that the existence
of the power did not prevent the vesting of the estates in default.
And in Walker v. Armstrong (21 Beav. 284), Lord Eomilly
held, that it was well settled law that an appointment under a
power, which merely relimits the old estates, creates new estates,
although given to the same persons and for the same purposes
and affecting the same piece of land. The decree in this suit
was varied on appeal on other grounds (8 D. M. & Gr. 531).
But in subsequent cases it appears to have been considered that
the rule is different if a person entitled in default of appoint-
ment takes under an appointment the same quantum of estate
as he would have taken in default of appointment, at any rate
in the case of personalty.
In Re Vizard (1 Ch. 588), a fund was settled by will on trust
for A. for life with remainder for all or such one or more of the
children or issue of B. as A. should appoint, and in default of
appointment for the childi'en of B. equally. One of B.'s
children assigned all his property to a trustee for his creditors
by a deed under the Bankruptcy Act of 1861, duly registered.
A. afterwards appointed the fund by will to the children of B.
equally. All the children of B. living at the testator's death
survived A., so that the appointees took the same shares under
the appointment that they would have taken in default of ap-
EFFECT OF APPOINTMENT. 277
pointment. It was lu-ld Ly V.-C. Stuart (1 Eq. 667), that
altliougli tlio interest taken Ly the appointee under the appoint-
ment was identical Avitli that which lie would have taken in
default of appointment, the appointed interest was a new estate
and did not pass by the deed. In the Court of Appeal L. J.
Turner rested his afTirmanco of the decree on the fact that the
interest of the appointee was altered by the execution of the
power ; for imder the instrument creating the power he took a
vested interest : but his interest under the testamentary appoint-
ment was liable to lapse. L. J. Knight Bruce expressed no
opinion. In Lcc v. Ohling (25 L. J. Cli. 580 ; 2 Jur. N. S. 850),
A. was at the date of his bankruptcy the sole object of a power
exerciseable by B. over a fund in which B. had a life interest,
and to a moiety of which he was also entitled in default of
appointment. Two days after A. obtained his certificate, B.
appointed the whole fund to him. V.-C. Stuart held that B.
and not his assignees in bankruptcy were entitled to the fund.
In Df Serve v. Clark (18 Eq. 588), A. by his will gave his re-
siduary estate to trustees on trust to pay the income to B. for
her life, and after her death to pay the trust funds to such of the
children of B. as should be living at her death in such shares
as B. should appoint, and in default of appointment to such
childi-en equally. B. had four cliildren who survived her. One
of them, C, married in 1851 a domiciled Frenchman. He died
in 1857 leaving one child. In 1870 B. appointed under the
power a specific sum to C. for her separate use. The question
was whether C. was entitled to the whole fund ; or whether
under the French law of community, her child was not entitled
to one moiety, being the share to which C.'s husband would
have been entitled if living. V.-C. Malins held that the fund
was not acquired during covertiu'e but at the date of the appoint-
ment, and was therefore not subject to the law of community.
On the other hand in Re FrowiVs Settlement (4 N. R. 54), a
settlement of personalty contained a power of appointment
among the children, grandchildi'en, and issue of the maniage
as the survivor of the husband and wife should by •vnoU appoint
and in default for the children of the marriage equally. There
278 A CONCISE TKEATISE ON POWERS.
was one child only ; she married in 1851, and by her settlement
covenanted to settle all property then vested in her or to which
she or her liusband in her riglit might become entitled during
coverture. The husband died in 1861 leaving his wife and two
children. In 1863 the funds comprised in the first settlement
were duly appointed to the only child. Y.-C. Wood said that
at the time of the marriage the child was entitled to a vested
interest, liable to be divested by an appointment wholly or
partially to the grandchildren. The appointment had been
made and had rendered certain that which was before uncertain,
but had taken nothing away. The property was therefore sub-
ject to the covenant : and he distinguished the older authorities
as relating to real estate.
In Siccctappk v. Horlocl: (11 Ch. D. 745), the M. R, reviewed
the authorities and held that, where real estate, which stood
limited, subject to appointment, to the use of A. and B. equally
in fee was appointed under the power to A. and B. equally, the
appointees took new estates : he dissented from the decision in
Re Frowd (p. 751), and pointed out the fallacy of the distinction
relied on by the L. J. Turner in Ee Vizard (p. 752). And it is
clear that although the appointment is to be read into the in-
strument creating the power as part of that instrument, it is not
to be so read in as to relate back in point of time to the creation
of the power {DuJce of MarlhorougJt v. Lord Godolph'm., 2 Ves.
sen. 61, 78).
The foregoing cases must of course be distinguished from
those before referred to (p. 22), where the donee of a power is
precluded either wholly or in part from exercising his power on
the ground that he would thereby derogate from his own grant
(and see lie Sprague, Miley v. Cape, 43 L. T. 236).
Probate duty. 57. Under 55 Greo. 3, c. 184, probate duty attached only to
the actual property of the deceased, and was therefore not
payable in respect of property over which the testator had a
mere power of appointment {Tlatt v. RoutJi, 3 B. 257, affirmed
suh nom. Drake v. Attorney -General, 10 CI. & F. 257; but see
Palmer v. Whitmore, 5 8im. 178; Sug. Pow. 204). But now,
by 23 Yict. c. 15, s. 4, it is provided that the stamp duties pay-
PROBATE AND LEGACY DUTY. 279
able by law upon probates of wills and letters of administration
with a will annexed, in England and Ireland, and upon inven-
tories in Scotland, shall bo levied and paid in respect of all the
personal or moveable estate and effects which any person dying
after the 3rd April, 1860, shall have disposed of b}' Avill under
any autliority enabling such person to dispose of the same, as
he or she shall think fit.
The Legacy Duty Act, 36 Geo. 3, c. 52, s. 7, provides that Legacy duty,
any gift by any will or testamentary instrument of any person
dying after the passing of the Act, which sliall by virtue of
such will or testamentary instrument have effect or be satisfied
out of the personal estate of such person so dying, or out of any
personal estate which such person shall have power to dispose of
as he or she shall think fit, shall be deemed and taken to be a
legacy within the intent and meaning of the Act, whether the
same shall be given by way of annuity or in any other form,
and whether the same shall be charged only on such personal
estate, or charged also on the real estate of the testator or
testatrix who sliall give the same : except so far as the same
shall be paid or satisfied out of such real estate, in a due execu-
tion of the will or testamentary instrument by which the same
shall be given.
The power must be a general one. The effect of tliis section
is to prevent the operation of the ordinary rule of law (according
to which, whatever is done in pm'suance of a power is to be
referred to the instrument by which the power is created, and
not to that by whieh it is executed as the origin of the gift),
and to render any property which is appointed by will in
pm-suance of a general power for that pm-pose chargeable with
duty as a legacy under that will, whether the power was created
by deed (as in lie Choh)W)Hleleij, 1 Cr. & M. 149), or by a pre-
vious will (as in Piatt v. lionfh, 3 B. 257). In the case of a
power created by will, if the donee of the power is also the
donee of any limited interest in the property, the effect of
s. 18, post, of the last-mentioned Act is to supplement the pro-
visions of s. 7, by making the property appointed chai-geable
upon the exercise of the power with duty as a legacy to the
280 A CONCISE TREATISE ON POWERS.
donee of tlie power under the original will, in addition to the
duty with which it becomes chargeable as a legacy to his
appointees under his own will (Hanson on the Legacy and
Succession Duty Acts, 88, 3rd ed.).
What is a For the purposes of the Legacy Duty Act, a power to appoint
for°the /ur^^^ ^0 such persous, other than J. W. and his relations, M, H. and
poses of the j^^g j-elatious, and the relations of the donee's late husband, as
Act. '
she should choose, has been held to be a general power {Piatt v.
Bouth, 3 B. 257, sub nom. Brake v. Attorney-General, 10 CI. & F.
257). And the power is considered absolute, although it is
exerciseable by wall only {Attorney-General v. Braclienhury, 1 H.
& C. 782). Where a marriage settlement in the usual form
gave successive life interests to wife and husband with the
usual trust for the children of the marriage, and in default of
children for such persons as the wife should appoint, and the
wife appointed by deed in 1848, and survived her husband and
died in 1888 without having had a child ; it was held that the
appointed property passed under the marriage settlement to the
appointee within the meaning of 44 & 45 Yict. c. 12, s. 38, and
that the settlement and appointment were " a voluntary settle-
ment " within 52 & 53 Yict. c. 7, s. 11 {Attorney -General v.
Chapman, 1891, 2 Q. B. 526).
Limited Wliere the power is a limited one, the execution thereof is
refeiTed to the instrument creating it, and legacy duty is or is
not payable accordingly, without reference to the instrument by
which the power is executed. Thus, where one of several
partners under a power in the partnership articles appointed a
share to a son, it was held that the partnership articles were a
voluntary settlement within the same Act {Attorney-General v.
Godiny, 40 W. E. 366; 1892, 1 Q. B. 545).
The cj^uestion by whom probate duty or account duty, as the
case may be, should be borne, is one of intention on the construc-
tion of the appointment in each case. Thus in Davies v. Fowler
(16 Eq. 308), Y.-C. Malins held that the words "testamentary
expenses " threw the probate duty on a particular fund. In
Be Croft, Deane v. Croft (66 L. T. 157; 1892, 1 Ch. 652),
where the donee of a limited power appointed various sums to
power.
PKOIiATE AND LEGACY DUTY. 281
different objects of the power and the residue to another,
Kekewich, J., held that the account duty was payable out of
the whole fund and not out of the residue only ; (and see aiifc,
p. 254; Re Bourne, 1803, 1 Ch. 188).
As to legacies subjected to powers of appointment, it is pro- Legacies sub-
vided by 30 Geo. 3, c. 52, s. 18, that where any legacy, or the J^^^^^P"'^^"-
residue or any part of the residue of any personal estate shall be
subjected to any power of appointment to or for tlie benefit of
any person or persons specially named or described as objects of
such power, such property shall be charged with duty as property
given to different persons in succession ; and in so charging such
duty, not only the person and persons who shall take previous and
subject to such power of appointment, but also any person and
persons who shall take under or in default of any such appoint-
ment, when and as they shall so take respectively, shall in respect
of their several interests, whether previous or subject to or under
or in default of such appointment, be charged with the same duty,
and in the same manner, as if the same interests had been given
to him, her, or them respectively in or by the will or testamen-
tary disposition containing such power, in the same order and
course of succession as shall take place under and by virtue of
such power of appointment, or in default of execution thereof,
as the case may happen to be : and where any property shall be
given for any limited interest, and a general and absolute power
of ai^pointment shall also be given to every person or persons to
whom the property would not belong in default of such appoint-
ment, such property upon the execution of such power shall be
charged with the same duty and in the same manner as if the
same property had been immediately given to the person or
persons having and executing such power, after allowing any
duty before paid in respect thereof: and where any property
shall be given with any such general power of appointment, which
property in default of appointment will belong to the person or
persons to whom such power shall also be given, such property
shall be charged with and shall pay the duty by the Act im-
posed, in the same manner as if such property had been given to
such person or persons absolutely in the first instance, without
such power of appointment.
282 A CONCISE TREATISE ON POWERS.
Succession 58. By 16 & 17 Yict. c. 51, s. 4, it is provided, that where
^'^^^' any person shall have a general power of appointment under
any disposition of property taking effect upon the death of any
person dying after the 19th May, 1853, over i^roperty, he shall,
in the event of his making any appointment thereunder, be
deemed to he entitled at the time of his exercising such power
to the property or interest thereby appointed as a succession
derived from the donor of the power : and where any person
shall have a limited power of appointment under a disposition
taking effect upon any such death over property, any person
taking any property by the exercise of such power shaU be
deemed to take the same as a succession derived from the
person creating the power as predecessor {Earl of Zetland
V. Lord Advocate, 3 Ap. Ca. 505, 516). The power must
take effect upon a death after the Act; in such a case the
duty will attach, although the power may have been exer-
cised before the Act {Ee Lovelace, 4 D. & J. 340; and see
Hanson, 255).
The first branch of the above section relating to a general
power applies only to a general power possessed by one person
enabling him to dispose of property as an absolute owner, which
is the equivalent of property, and does not touch the case of a
joint power of appointment given by a family settlement to two
donees {Charlton v. Att.-Gen., 4 Ap. Ca. 427). The latter case
falls within the second section of the Act, which in substance
enacts that any disposition of property by reason whereof any
person shall become beneficially entitled to any property on the
death of any person, shall be deemed to confer on the person
entitled by reason of such disposition a succession ; and the term
" successor " shall denote the person so entitled, and the term
" predecessor " shall denote the settlor or other person from
whom the interest of the successor is derived. Under this
section, the succession created by a general power is to be
referred to the instrument creating the power, and not to that
•which exercises it, as the disposition by reason whereof the
succession takes effect : and the appointees derive then- succes-
sion from the donor of the power as " predecessor," and not
SUCCESSION DUTY.
28:i
from the donees {Att.-Gcn. v. Floyer, II. L. 0. 477 ; Lord
Brayhrookc v. Att.-Gcn., ibid. 150). In the cases of family
re-settlements creating a joint power, the donor of the power
for the pm-pose of ascertaining the " predecessor," is the person
out of whose estate of inheritance the power is derived; (see
the last cited cases, and Charlton v. Aff.-Geii.y 4 Ap. Ca.
427).
Sect. 42 makes the duty a first charge upon the property, hut Succession
, . duty not to
provides that where any settled real property comprised in a prevent
succession shall be subject to any power of sale, exchange, or powers'S^
partition exerciseablo with the consent of the successor, or by sale, &c.
the successor with the consent of another person, he shall not
be disqualified by the charge of duty on his succession from
effectually authorizing by his consent the exercise of such
power, or exercising any power with proper consent, as the case
may be ; and in such case the duty shall be charged substitu-
tively upon the successor's interest in all real property acquired
in substitution for the real property before comprised in the
succession, and in the meantime upon his interest also in all
moneys arising from the exercise of any such powder, and in all
investments of such moneys.
This section has been held to extend to a case where lands
were settled subject to an existing jointure, and the donees of a
power of sale contained in the settlement sold with the join-
tress's consent. It was contended that s. 42 applied only to
sales under powers which overrode the charge in respect of
which the succession would arise, but the L. C. Hatherley
thought otherwise [Dugdalc v. Meadous, 6 Ch. oOi). But it is
understood that the Crown does not recognise the correctness of
this decision (see 17 Ch. D. 712).
It was held in Be IFanier's S. E. (17 Ch. D. 711), that a sale
under the Settled Estates Act, 1877, discharges the land sold
and shifts the duty to the purchase-money. The ground of tliis
decision was that such a sale by virtue of the twenty-second
section takes effect as if there had been in the settlement a
power exerciseable so as to operate by way of revocation of the
284 A CONCISE TREATISE ON POWERS.
old and re-appointment of tlie new uses. It lias not at present
been decided whether a sale under the Settled Land Act has
the same effect as to succession duty, as a sale under the Settled
Estates Act was held to liave (see s. 20). It is stated in Hood &
Challis on the Act (p. 219, 3rd ed.), that the above decision
covers the case of a sale under the Settled Land Act (and see
2 Dart, V. & P. 669, 6th ed.) ; but the point has not j-et been
decided.
CHAPTER VI.
EXCESSIVE EXECUTION.
285
PAGE
1 . Befinifton 285
2. Perpetuities: distinctiun between
general and particular powers 286
Perpetuities : distinction between
particular powers created by
deed and by will 287
3. Consequences of rule that ap-
pointment must be read into
instrument creating power . , 288
4. Whether poicers of maintenance,
ijc, are applicable to ap-
pointed shares ib.
5. Estates created by appointment . 289
Appointee^ s estate does not re-
late back ib.
6. Rules as to perpetuity applic-
able to appointments ib.
7. What estates may be created
under special powers, in point
of perpetuity 292
8. Appointment not wholly void if
transgressing part severable . . 294
9. General rule as to appointments
contravening rules against per-
petuity ; are not generally
severable 296
10. Excess by contravening the terms
of the power 298
11. Absolute appointments followed
by improper modifications .... 301
12. Gift over by way of executory
limitation to a stranger after
appointment to an object .... 302
PAGE
13. Gift over to an object by ivay of
executory limitation after an
appointment to a stranger .... 303
14. Appointment to contingent class,
or to take eject in f uturo .... 305
15. Appointments to objects and
strangers by tcay of remain-
ders 306
By deed: by will 307
16. Appointments by way of re-
mainder not accelerated 309
17. Effect of attempted delegation of
power on gifts in default of
exercise of such power 311
18. Appointments to objects and
strangers equally 312
19. Are good, if severable ib.
20. Appointment to object must be
absolute and distinct 313
21. Are appointments apportionable
in respect of the acts to be done
under them ? 315
22. Cyiyres ib.
23. The application of the rule of
cypres is apportionable 317
24. Where the excess consists in the
appointment of estates larger
than authorised ib.
25. What is a good execution in
respect of the interest given . . 318
26. Jiy whom appointments are to
be carried out > . 325
1. Excess in the execution of powers consists in the trans-
gression either of the rules of law or of the scope of the power.
286
A CONCISE TREATISE ON TOWERS.
Perpetuities.
Particular
power.
Test of vali-
dity of estates
appointed.
2. The rules against perpetuities apply to instruments exe-
cuting powers as well as to other instruments (Lewis on
Perpetuity, 482). The rules are:— (1) the old common law
rule against double possibilities which prevents a limitation of
a legal estate in land to the unborn child of an unborn child of
an existing person (see Whithy v. Mitchell, 42 Ch. D. 494; 44 ib.
85) ; (2) the later rule which has been rendered necessary by
the creation of executory limitations : viz., that an executory
estate or interest must vest, if at all, within the period of a life
or lives in being and twenty-one years after, with a fm-ther
period for gestation if gestation actually exists (see Williams,
E. P. 318, 12th ed. ; Ohallis, E. P. 146 et scq.). It is not
enough that the executory estate or interest may, or even that
in the event it does, vest within that period, if it is possible that
it may not do so : the possibility of its exceeding the limit
allowed by law renders the whole estate or interest void
ab initio.
There is an important distinction between general and par-
ticular powders in this respect. The donee of a general power is
vii'tually absolute owner of the property over which his power
extends ; and he is to be regarded as absolute owner for the
purpose of considering the application of the rule against
perpetuities to him. The donee of a particular power is not
absolute owner : he cannot create any estate in point of per-
petuity which might not have been created by the instrument
containing the powder : he cannot appoint to any person to whom
the original creator of the power could not have appointed.
" 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 " (Sug.
Pow. 395-6). It was held in one case {lie FotceH'.s Truds, 39
L. J. Ch. 188; 18 W. E. 228), that a life interest given to a
married woman, followed by a general power of appointment by
will, is not equivalent to giving her an immediate general power
80 as to take the case out of the rule against perpetuities ; and
James, Y.-C. there held that an appointment which would have
been good, if the donee's power had been a general one, was
void, inasmuch as the donee's power was testamentary only and
EXCESSIVE EXECUTION. 287
preceded by a life interest in the donee, and that the appoint-
ment must therefore be read into the instrument creating tlie
power. This case, however, stands alone, and has been dis-
sented from by Chitty, J., and North, J. (see lions v. Jacknon,
29 Ch. D. 521 ; Itc Flower, 55 L. J. Ch. 200 ; 34 W. R. 149 ;
and in Ireland, Sfuart v. Bahington, 27 L. E. Ir. 551), And
on principle it is submitted that fur the purposes of the rule
against perpetuities a general power to appoint by will, following
a life interest in the donee of the power, — whether the donee
be a man or a married woman, — is equivalent to absolute
ownership.
Inasmuch as wills do not come into operation until the death Distinction
of the testator, there is an important distinction between powers ticiUar powers
created by deed and by will : a deed speaks from its own date, cheated by
*' *' ^ ' deed and by
and subsequent events cannot affect the validity of limitations will,
then contained in it : and a voidable deed, if subsequently con-
firmed, speaks from its own date for this purpose {Coohe v. CooJce,
38 Ch. D. 202).
But a will speaks from the death of the testator : and thus,
limitations, which were bad when the will w^as made, may prove
good when it comes into operation. In Peard v. Kekcicich (15
B. 1G6), there was a devise in trust for A. for life, with
remainder to any of his children as he should appoint. At the
date of the will A. had no child, but at the death of the testator
he had a son, B., three years old. A., by will, appointed to
trustees and their heirs in trust for B. and his heirs, and to be
conveyed to him at twenty-three, with a gift over to other sons
if B. died under twenty-one; and he drrected the rents to be
accumulated until B. or such other sons should attain twenty-
three, and then to pay them over. It was hold that the gift
was not too remote, and that the direction to accumulate was
valid. In this case, the appointment to the son and the direction
to accumulate until he attained twenty-three were considered as
distinct and separable from the appointments over to the other
sons and the directions to accumulate affecting their interests if
they arose ; for B. was the only son born during the lifetime of
the creator of the power ; the trusts for accumulation, therefore,
288 A CONCISE TREATISE ON POWERS.
SO far as tliey affected tlie other cliildren of A., were void, as
transgressing tlie laws against perpetuity ; (and see Duhe of
Devonshire v. Lord G. Cavendish, 4 T. E. 741, n. ; Wilkinson v.
Duncan, 30 B. 111).
Consequences 3. The rule that the appointment under the power is to be
appointment read into the instrument creating the power is followed out to
Sto^i^Sm-^ its logical results. Thus, although a husband could not at
ment creating common law, prior to the Conveyancing Act, 1881 (sect. 50),
DOWGr.
make a conveyance to his wife, yet he could exercise a
power of appointment to take immediate effect in her favour,
because the wife's estate arises in such a case not out of the
husband's estate, but out of the seisin imder the original instru-
ment creating the power. And the same rule applied to an
appointment by the wife to her husband {Daniel v. Ujily,
Latch. 44; Bendloe, 180 ; Lord Antrim v. Dnlcc of Buckingham,
1 Ch. Ca. 17; Freeman, Ch. Ca. 168). So, too, although the
prior estate of freehold and the subsequent limitations must be
contained in the same instrument in order to let in the rule in
Shellcifs case, yet a limitation to A. for life by deed and a
subsequent appointment during A.'s life to the heirs of A. in
exercise of a power of appointment contained in the deed
creating A.'s life estate, fall within the rule in Shelleifs case so
as to give A. a fee simple, because when the appointment to A.'s
heirs is read into the instrument creating the power, both the
life estate of A. and the subsequent limitation to his heirs are
contained in the same instrument (Fearne, C. R. 74, ch. 1,
B. Y. 14 ; Venahles v. Morris, 7 T. E. 342, 438 ; Sug. 471).
Are powerfi of 4. It is suggested that powers of maintenance, advancement,
fcc-^ppU-^^' &c., may in cases where they are applicable to vested shares,
caWe toan apply to appointed shares under this principle. Mr. Davidson,
share. however (Convey, vol. 3, 3rd. ed., p. 159), considers it the
better opinion that the provisions for maintenance, education,
and advancement usually inserted in settlements would not in
general apply to an appointed share, unless expressly extended
thereto as in his Precedents, such a share being by the appoint-
ment and so far as it extends, withdrawn from the general
operation of the settlement (Sug. Tow. 467; but see Chance,
EXCESSIVE EXECUTION. 289
Pow. vol. 2, p. 483) : although he says that the contrary view
appears to have teen acted on in JF/iifo v. Granc, 18 Beav. 571.
It is submitted that it might well he held that the appoint-
ment is to he read as part of the original instrument creating
the power and in lieu of the power — so far as any of the other
provisions in the instrument are inconsistent with the appoint-
ment, they must he taken to bo abrogated, but not further.
It is in each case a question of intention ; if the words of the
maintenance and advancement clauses are applicable to a share
to which an object is absolutely entitled, as in White v. Grane,
there is no reason why those powers should be taken to have
been extinguished by the appointment. The appointed share is
not taken out of, but the appointment is read into, the will or
settlement. Mr. Da\'idson fm-thor considers it doubtful whether
these powers could be delegated without express authority ; and
he refers to Cheder v. Chadwick, 13 Sim. 102 ; WJiite v. Grane,
tihi supra ; and Lloi/d v. Lloyd^ 26 B. 96.
5. But the estates created by the appointment are not Estates
necessarily the same estates as would have been created by the appointment,
same words in the original instrument. Thus where limita-
tions in an appointment if contained in the original settlement
could only have been read as contingent remainders, and would
have failed as such, it was held that they could be read in the
appointment as springing uses, and were good as such {Hole v.
Escoit, 4 M. & C. 187, 192).
Nor is the rule applicable so as to make the appointee's estate Appointee's
. / >• estate does not
or enjoyment relate back to the date oi the instrument creatmg relate back.
the power. The appointee's estate though derived from the
power vests, not at the time of the creation of the power, but at
the time when its execution takes effect {Dul-o of Marlborough v.
Lord Godo/phiH, 2 Ves. sen. 61, 78, 79). Nor, since the "Wills
Act, is it necessary that an appointment by will of real estate f^ v -Uc-^
under a power created by deed, should contain words of limita- ^ ^/y
tion in order to pass the fee (Sug. Pow. 400). ^'
6. The rules with reference to perpetuity applicable to gifts Rules laid
by will are analogous to those apphcable to appointments under /j„ y. Brown.
powers,
F. U
290 A CONCISE TREATISE ON POWERS.
The rules as to executory clevises are thus stated by V.-C.
Wood in Cattlin v. Brown, 11 Ila. 372 :—
Gifts must (1.) An executory devise is bad unless it is clear, at the deatli
propCT period, of tlie testator, that it must of necessity vest in someone, if at
all, within a life in being and twenty-one years afterwards
{Dn)io(nuwn v. Smith, 12 CI. & F. 546, 570).
Rule of _ (2.) You must ascertain the objects of the testator's bounty
by construing his will without reference to the rules of law
against perpetuities ; and having, apart from any consideration
of the effect of those rules in supporting or destroying the claim,
arrived at the true construction of the will, you are then to
apply the rules of law as to perpetuities to the objects so
ascertained.
This rule is thus explained and qualified in MartcIIl v.
Uolloxcay (L. E. 5 H. of L. 532) : " There may be a particular
clause in a will, which on one construction appears to offend
against the law relating to perpetuities, but if it is fairly capable
of another construction which avoids that objection, the latter
. - construction will be preferred, especially if it is found to be in
accordance with the general intention of the will." So in
Sfroud V. Norman (Kay, 313), an appointment, which standing
alone would have been bad for perpetuity, was construed by
reference to a proviso in the power that it should take effect
within twenty-one years after the donee's death ; (but see Sug.
Pow. 520). But "there is no bias in the mind of the Court
upon a question of construction. The sole object is to find out
the meaning of the words which are used, and when that is
done the legal effect is to be ascertained " {2^er Lord Selborne
in Wehh V. Sadler, 8 Ch. 426) : " Tou do not import the law of
remoteness into the construction of the instrument by which you
investigate the expressed intention of the testator. You take his
words, and endeavour to arrive at their meaning, exactly in the
same manner as if there had been no such law, and as if the
whole intention expressed by the words could lawfully take effect.
I do not mean that, in dealing with words which are obscure
and ambiguous, weight even in a question of remoteness may
not sometimes bo given to the consideration that it is better to
EXCESSIVE EXECUTION. 291
effectuate tlian to destroy the intention : Lut I do say that if
the construction of the words is one ahout wliich a Coui-t would
have no doubt, if there was no law of rcmf)teiiess, that construc-
tion cannot be altered or wrested to something different for the
purpose of escaping from the consequences of that law" {per
Lord Selborne in Foark-s v. Moseleif, 5 Ap. Ca. 719 ; and see Be
Bcirni's Tnisfs, 31 Ch. D. 716; Hairy. Hci/r, ^ Ch. D. 643;
Beutinck v. Duhc of Portland, 7 Ch. D. 693 ; Blic//d v. HartiwU,
19 Oh. D. 294).
(3.) If the devise be to a single person answering a given Gift bad
description at a time beyond the limits allowed by law, or to a
series of single individuals answering a given description, and
any one member of the series intended to take may by possi-
bility be a person excluded by the rule as to remoteness, then no
person whatever can take, because the testator has expressed his
intention to include all, and not to give to one excluding others
{Dungaunon v. Smith, 12 CI. & F. 546).
(4.) "Where the devise is to a class of persons answering a Gift also bad
given description, and any member of that class may possibly
have to be ascertained at a period exceeding the limits allowed
by law, the same consequence follows as in the preceding rule,
and for the same reason. You cannot give the whole property
to those who are in fact ascertained within the period, and
might have taken if the gift had been to them nominatim,
because they were intended to take in shares to be regulated in
amount, augmented, or diminished, according to the number of
the other members of the class, and not to take exclusively of
those other members ; (and see Smith v. Smith, 5 Ch. 342 ; Be
Skrk, 21 W. R. 165).
(5.) "Where there is a gift or devise of a given sum of money Gift -when
or property to each member of a class, and the gift to each is ^^^'^^*"^®-
wholly independent of the same or similar gift to every other
member of tlie class, and cannot be augmented or diminished
whatever be the number of the other members, then the gift
may be good as to those ^vdthin the limits allowed by law
{Starrs v. Benboic, 2 M. & K. 46 ; 3 D. M. & G. 390 ; Gn^l/ith
V. Poiniall, 13 Sim. 393).
u 2
292 A CONCISE TREATISE ON POWERS.
Appomtment 7. A power of appointment among children is well executed
with general ' bj an appointment to one of them for life, with power to dispose
position^good. ^^ ^^® capital by deed or will, whether such children were in
esse at the creation of the power or not ; for this in effect gives
the whole beneficial interest to the appointee, and does not trans-
gress any rule against perpetuity {Bray v. Brce, 2 CI. & F. 453 ;
Jehb V. TNgu-c//, 7 D. M. & G-. 663).
And a like appointment to one of the objects of the power for
life, with a power of disposition by will only, is good, if such
object were in esse at the time of the creation of the power
{Phipson V. TuDier, 9 Sim. 227 ; Slark v. Dakyns, 10 Oh. 35 ;
3Iorse v. Martin, 34 Beav. 500).
Secus, if the But such an appointment will not be good if the object was
DowGr of d.is"
position be not in esse at such time. In WoUaston v. King (8 Eq. 165), a
^es amen ary ^gg^g^^j.^^ -^^^ g^ power under her marriage settlement to appoint
a fund in favour of the children of the marriage : she appointed,
in execution of the power, a part of the fund to her son C. for
life, with remainder to such persons as he should by will ap-
point. As the effect of this would be to tie up the appointed
part of the fund, and render it incapable of disposition during
the whole lifetime of C, who was not in esse at the time of the
creation of the power, this remainder after C.'s life estate was
held void.
Power of ap- So an appointment (under a power in a marriage settlement)
marrkge. ^ upon sucli trusts to take effect after the marriage of a daughter
(unborn at the date of the settlement, and then unmarried) as
she should by deed or will appoint ; and in the meantime on
trust for her for life, and after her death as she should by will
appoint, was held void as to all except the life interest ; for
marriage is as uncertain with regard to the time at which it
may take place, if it ever does take place, with reference to lives
in being, as death is {Morgan v. Gronoic, 16 Eq. 1).
The daughter's execution of her power would of course be
invalid also ; for no act of hers could make the appointment to
her valid.
If, however, the daughter was married at the time of such an
appointment, the objection would not apply, and the appoint-
ment would be good {ibid.).
EXCESSIVE EXECUTION. 293
If a power of appointment among issue be given by a settle- Appointment
ment or by a will to a person unmarried at the date of the ^,iui'fl^r^e
settlement or of the death of the testator, as the case may be, '^'^^}^ ^*^'
'' ' mamder to
an appointment to a child for life, and after his death to his liis child.
eldest son living at liis death or born in due time after, is of
course void for all beyond the life estate {TfAhbadie v. Bizoin,
5 I. 11. Eq. 205).
But " property may be given by will, or secured by settle-
ment, to an unborn person for life, or to several unborn persons
successively for life with remainders over, provided the vesting
of the remainders or {qii. and) the ascertainment of those who
are to take in remainder be not postponed till after the death of
such unborn person or persons " {per Malins, V.-C, in Stuart v.
Cocherell, 7 Eq. at p. 366, citing AHhleij v. Ashley, 6 Sim. 358 ;
Lewis, Terp. 423 ; 1 Jarm. Wills, 3rd ed. 264 ; Gilbert, Uses,
269 n.). A life interest may certainly be given to an unborn per-
son, for life simply without any remainder over (Sug. Pow. 411;
Williams V. TeaJe, 6 Ila. 239, 250) ; or to a class of unborn
persons for life {Hampton v. Holman, 5 Ch. D. 183, 188 ; Re
Roberts, 19 Ch. D. 520; Goodiiig v. Read, 4 D. M. & G. 510) :
and life interests may be given to a nimiber of unborn persons
with an absolute gift in remainder to ascertained persons i)i esse
{Evans v. TFa/ker, 3 Ch. D. 211), or necessarily ascertainable
■within the prescribed period {Re Hargreaves, 43 Ch. D. 401) ; but
not to the survivor of the unborn tenants for life absolutely. Avern
V. Lloyd (5 Eq. 383), is overruled by Re Hargreaves, ubi sup. In
Garland v. Brown (10 L. T. 292), a devise to a class of unborn
children for life as tenants in common, with remainder to the sur-
vivor in fee was held void for perpetuity as to the remainder.
A forfeiture clause with a gift over to other objects of the Gift over on
power may be effectually created if it is to take effect within the ° •^'f"'^-
period allowed by the law, but not otherwise. Thus in Hodgson
V. Halford (11 Ch. D. 959), an appointment made under a
limited power, created by the will of a testatrix who died before
the birth of many of its objects, was made subject to a condition
for forfeitui'e on marriage with a Chi-istiau, either before or after
the appointor's death ; one appointee married a Christian in the
294 A CONCISE TREATISE ON POWERS.
lifetime of the appointor, and another after her death : the for-
feiture and the gift over consequent thereon were effectual in
the former, but not in the latter case. So, in Webb v. Sadier (8
Ch. 419), a forfeitm-e on bankruptcy or assignment within the
due limits was held good ; and a similar provision without any
restriction was held void in Sfockbridge v. Story, 19 W. E.
1049.
Limitation to A Hmitation of the legal estate in land to an unborn person
flJiiS^S'' for life wi^li remainder to that person's issue is void, not because
remainder to j[|. jg obnoxious to the rule agaiust perpetuities, but because it
issuef bad!' transgresses the old rule of the common law that a possibility
cannot be limited upon a possibility ; it is therefore immaterial
that the ulterior limitation is made to take effect within the
period allowed by the rule against perpetuities.
In Whitby V. Mitchell (42 Ch. D. 494 ; 44 ib. 85), lands were
limited by marriage settlement to the use of husband and wife
successively for life with remainder after the death of the sur-
vivor " to the use of a child, grandchild, or more remote issue,
or all and every or any one or more of the children, grandchil-
di-en, or more remote issue of " the husband and wife (such
child, grandchildren, or more remote issue being born before
any appointment should be made) as the husband and wife
should appoint. The husband and wife by deed appointed part
of the settled lands to the use of a daughter for life for her
separate use without power of anticipation, and after her de-
cease to the use of such persons as she should by will appoint,
and in default to the use of her children living at the date of
the deed. It was held that all the limitations except that to the
daughter for life were void.
Appointment 8. An appointment to a married woman, unborn at the date
not wholly ^ ^YiQ creation of the power, for her separate use with a restraint
bad, II trans- . ^ -, -i • i i -l- £
greasing part qq anticipation, contravenes the rule agamst perpetuities so tar
Bevera e. ^^ ^^^ restraint on anticipation is concerned. It was, indeed,
suggested by Jessel, M. E., in Re Ridley, Buckton v. Hay (11
Ch. D. 645), that, as the restraint on alienation annexed to the
separate property of married women is a solitary exception to
the general rule that all property must be alienable, the exception
EXCESSIVE EXECUTION.
290
might usefully be extended to the rule against perpetuities.
But this suggestion has not heen adopted.
The imposition of the restraint, however, does not avoid the
whole appointment, but is simply void.
In Frij V. Capper (Kay, 16-3), there was a power of appoint- Appointmr-nt
ment among children contained in a marriage settlement ; in out power of
execution of this, a share of the trust fund was appointed to ^"^ ^"^* ^^^'
trustees for the separate use of a married daughter (unborn of
course at the date of the settlement) for life without power of
anticipation, and after her decease for her general appointees.
The appointment was upheld, but the restraint on anticiption was
rejected; (see, too, Yfliitbi/ v. MifcheU, 42 Ch. D. 494 ; 44 ib. 85 ;
Re Teagiie, 10 Eq. 564; Be CHnijnghame, 11 Eq. 324; Thornton
V. Bright, 2 M. & C. 230 ; Divhinson v. Mort, 8 Ila. 178).
In Cooper v. Laroche (17 Ch. D. 368), V.-C. Malins held Woman past
... . IP 1 . T 1 child beariDg.
the restramt on anticipation m the case beiore hiin valid,
because he considered that no woman to whom the restraint
would apply could come into being after the date of the appoint-
ment. In that case the testator gave his property to trustees
upon trust after the death of certain life tenants for all the
children equally of A. and B. (two females), who should be
living at the determination of the previous life interests, sons'
shares to be paid at twenty-one, daughters' shares to be for
their separate use for life without power of anticipation, and
after their deaths as they should appoint. At the date of the
will A. was dead and B. was past child-bearing; and under these
cu-cumstances the V.-C. held that all the children of A. and B.
must necessarily be in esse, and that, consequently, the restraint
would not tie up the property beyond the limits; (and see
Herbert v. Wet>ster, 15 Ch. D. 610). But the practice of the
Coui-t in treating women of a certain age as past child-bearing
is not a rule of law but is a mere rule of convenience in the
administration of estates ; there is no legal impossibility in a
woman of 100 years old bearing a child (Co. Litt. 40 b; see
Jee V. Andley, 1 Cox, 324; Re Sayer, 6 Eq. 319; Be Bnicson,
Johnston v. /////, 30 Ch. D. 155).
296 A CONCISE TRE.\.TISE ON POWERS.
Gift contra- 9. All appointment, which inchides objects not within
venins: rule it p • i i • i •
against the uno 01 pci'petuity and which is not sever-
■svhoUy void. ablo, is whoUj void, and the fund cannot be
given to those to whom it might liave been legally
appointed (Sug. Pow. 505 ; Jee v. Audley^ 1 Cox,
324 ; Lewis on Perpetuity, 493 ; Routledge v.
Dorril, 2 Ves. jun. 357).
"It is said, if all the children cannot take, why may not
those to whom she might have appointed ? I answer, because
she did not mean those only, but all " {2)er Lord Alvanley, 2
Yes. j. at p. 366).
Appointment Where there is a gift to a class, some of whom are within the
rule against perpetuities and some are not, but the class itself
and the shares of each cannot be ascertained within the legal
hmit, the whole gift is void. But where the individual shares
of the members of the class can be ascertained within the legal
hmit, the gift is vahd as to such as fall within the limit although
bad as to the rest. If a stated sum be given to each member of
a class, wholly independent of a similar gift to every other
member of the class and cannot be affected, whether the other
sums are paid or not, the gifts to those who are ascertained
within the legal limit are good [Wilkimon Y.Diuican, 30 Beav.
Ill; and sect. 6, p. 279, ante). And the power itself is not bad
because it authorizes an appointment to persons who may not
come into existence within the legal limit ; a valid appoint-
ment may be made under such a power to persons born within
due time {Attenhorough v. Attenborough, 1 K. & J. 296). So,
too, if there be an absolute appointment to an object of the
power with an executory gift over to an object who may not be
bom in due time, the absolute appointment remains and the
gift over only is void {Re Brown and Sihly, 3 Ch. D. 156).
Limitations Where a gift is void for remoteness, all limitations expectant
gift also void, on such gift are also void, whether such limitations are or are
not within the rule against perpetuities [Proctor v. Bishop of
Bath and Wells, 2 H. Bl. 358 ; Beard v. Westcott, 5 B. & Aid.
EXCESSIVE EXECUTION.
297
801; T. & R. 25; Re Thatcher's Trusts, 2Q B. 365 ; 1 Jarm.
283).
But if there is a gift in one event wliich is void for remoteness Gift over on
. , . . . alternative
and another independent gift on an alternative event which is events.
not void, and the latter event happens, the gift is good. Thus,
in Longhead v. P helps (2 W. Bl. 704), trusts were declared of a
term in case of the death of A. without leaving issue male, or in
ease such issue male should die without issue ; and it was held
that on the happening of the former contingency the trusts were
effectual.
In Moiujpon)!!/ v. Bering (2 D. M. & Gr. 145), lands were
devised to trustees upon trust for A. for life, and after liis
decease for A.'s first son for life, and after his decease for the
first son of such first son and the lieii-s male of his body, and in
default of such issue for every other son of A. successively for
the like interests and limitations ; and in default of issue of the
bod// of A. or in case of his not leaving any at his decease, for B.
for his life with remainders over. It was held that the failure
of issue of A. at a too remote period, and A.'s death without
leaving issue were independent alternative events, and that on
the happening of the latter event the gift over in favour of B.
took effect.
In Watson v. Young (28 Ch. D. 436), real estate was devised
to trustees in fee upon trust for A. for life and after his death
for his children who should attain twenty-one, and the issue of
any child who should die under twenty-one leaving issue who
should attain that age, but in case there should be no child, nor tlte
issue of anij child of A. n-ho should lire to attain the age of twenty-
one, then over. Pearson, J., held that the gift over was divisible
into (1) a gift over in the event of there never being any child
of A., and alternatively (2) a gift over in the event of no child
or issue of any child attaining twenty-one ; and that on the
happening of the former alternative, which was not too remote,
the gift over was effectual.
It may, however, be doubted whether Watson v. Young was
rightly decided. It is certainly not law that every gift over
may be analyzed into as many events as are included within its
298
A CONCISE TREATISE ON POWERS.
Excessive
execution
■witli reference
to the terms
of the power.
Excess
rejected if
separable.
Excess by way
of condition.
language, and be held good or bad as the events happen. In
Ji!irrs X. C/ia/Ii-'^ (7 II. L. C. 531), the testator mentioned two
contingencies, and in the event of one of such contingencies
happening, made a gift over which could operate as a remainder,
and in the event of the other happening, made a gift over which
could operate only as an executory devise — the former event
happened and the remainder vested, and it was held that this
could not be affected by the nature of the contingency on which
the executory devise would have arisen {Be Bence, Smith v. Beiice,
1891, 3 Ch. 242 ; Miks v. Harford, 12 Ch. D. 691 ; Abhiss
V. Burneij, 17 Ch. D. 211 ; Be Ilarveij, 39 Ch. D. 289). If the
trust or appointment be severable, part may be good {Gooding
V. Bead, 4 D. M. & Gr. 510), although the remainder be void
{Bead v. Goodimj, 21 B. 478).
10. Excess with reference to the terms of the power may be
either by way of conditions annexed, limitations or modifications
added, or power delegated ; the same rule applies to all.
Where there is a complete execution of a power
and something added which is improper, the
execution is good and the excess void ; but where
there is not a comj^ilete execution, or where the
boundaries between the excess and the execution
are not distinguishable, the whole appointment
fails {Alexander \. Alexander, 2 Ves. sen. 640, 644;
Hamilton y. Royse, 2 Sch. & L. at p. 332 ; Adams
V. Adams J Cowp. 651 ; Macdonald v. MacdonaW,,
L. R. 2 Sc. & D. 482 ; Re Farncomhe, 9 Ch. D.
652 ; Sug. Pow. 529).
"Suppose a power to a man to appoint 1,000/. among his
children: if the father gives the 1,000/. to his children and
annexes a condition that they shall release a debt owing to
them or pay money over, tlio apjiointment of 1,000/. would be
absolute, and the condition would be only void" (2 Yes. sen.
p. G44).
In Sadler v. Pratt (5 Sim. 632), A., having four children by
her first husband and three by her second, and having power to
EXCESSIVE EXECUTION. 299
appoint a fund among the former only, appointed it amongst
all her cliildren equally, and declared that if her children by
her first husband should refuse to share the fund with her other
children, the whole fund should go to her youngest child by her
first husband. It was held that the appointment was not wholly
void, but that the first class of children took each one-seventh of
the fund under it, and the other shares went to them equally as
in default of appointment; (and see Pcthyravey. Atkinson, 1 Coll.
190 ; Watt v. Crcijke, 3 Sm. & G. 3G2 ; Rooke v. llooke, 2 Dr. &
Sm. 38; lioach v. Trood, 3 Ch. D. 429).
But it will be otherwise if the condition be inseparable from Whole ap-
pointmeut
the exercise of the power. fails if coudi-
In Webb v. Sadler (8 Ch. 419), the donee of a power of appoint- ^^^^^^^^ "isepa-
ment among children appointed to trustees on such trusts as one
of the children, by deed executed with the consent of the donee of
the power during his life, and after his death with the consent ^ uirh.c.t^
of the trustees, should appoint. This consent was held '^^^^^'urTr/u^ ^ ^/i^
inseparable from the power, and to render it wholly void; (and I d^^caa I,
see Hay v. JFafkins, 3 Dru. & War. 339 ; D'Abbadie v. Bizoin, ^ ^ ^o
5 I. B. Eq. 205, which, however, is rather to be regarded as a
case of a fraud on the power; Be Ferkin-s, 41 W. R. 170).
It does not appear to have been decided whether the whole
appointment would fail if the condition in excess were precedent :
but it is difficult to see how in such a case there could be said to
be any absolute appointment to the object of the power if the
event on which such appointment was to arise had not occurred.
If there be an appointment to an object subject to a charge Excess by way
for an unauthorised purpose, the appointee will take the gift appointed
freed from the charge. In Be Jeaff'rcson (2 Eq. 276), the donee ^^""^"
of a limited power appointed the balance of the fund, after
payment of legacies to objects of the power, " to pay her own
debts, and shoidd any surplus remain " she gave it to an object
of the power. Tliis was held to be a gift, subject to an invalid
charge : the charge therefore dropped, but the gift remained.
But the donee of a power of appointment among children Conditional
which authorises exclusion may appoint to one child on a con- ^jjcn good. '
tingency, and if that contingency does not happen, then to
300 A CONCISE TREATISE ON POWERS.
another child. In CaulfiehJ v. Macguire (2 J. & L. 170), the
donee of an exclusive power of appointment among children
recited that her daughter M. had declared her intention of
becoming a nun, and had already retired into a convent pre-
paratory thereto, and that her patrimony in that case would be
sufficient for her maintenance; and she added, that if her
daughter changed her mind and returned to her family, she
gave 1,000/. to trustees on trust for M. to receive the interest
during her life, and at her decease to be divided amongst her
children, if any ; or in either case of her not leaving the convent
or not leaving issue, the 1,000/. to be divided amongst other
objects of the power. This appointment was held authorised by
the power.
It is the same if the event on which the gift over is to take
effect be some act to be done by the appointee, if such act be
consistent with the scope of the power. In Stroud v. Norman
(Kay, 313), the donee of a power of appointment and selection
among children appointed to child M. on condition that she
made a payment out of certain funds to her brothers, who were
also objects of the power; and there was a limitation over to
her brothers if she did not. This was held to be valid and
within the scope and object of the power; (and see Roberts v.
Dixicell, Sug. Pow. 930). So, in Graham v. Amjell (17 W. E.
702), under a power to appoint amongst issue in such shares
and proportions as A. should by will dii^ect, a sum was appointed
to a child in America, "if she applies for the same within twelve
months after my decease," and in default to other objects of the
power. This was held valid.
During the period while the contingency is undetermined, the
interest on the appointed fund passes under the residuary ap-
pointment, if there be one {Caulficid v. Macguire, 2 J. & L. 170),
and if not, goes as in default of appointment.
In Butlers. Butler (7 L. E. Ir. 401), an appointment to a
son with a direction to withhold payment till he was thirty, and
then to pay him, if in the opinion of the trustees he had behaved
properly, was held a valid and absolute appointment with a
nugatory direction superadded.
EXCESSIVE EXECUTION. 301
11. The principle in tlie construction of wills that a quali- Absolute
fying trust, introduced suhsoquontly to an absolute gift, operates followed by
only so far as it can take ellect, and that the rest of the gift '"O'iificationB.
remains in the original objects as given to them (Lassence v.
Tiernei/, 1 Mac. & Gr. 551) applies to appointments under powers
as well as to bequests and devises {Churchill v. Churchill, 5 Eq.
44; Macdonald v. Macdonald, L. R. 2 Sc. & D. 482). In
Churchill v. Churchill, the donee of a power of appointment
among children appointed, the fund subject to the power to his
three daughters equally, and gave his residuary estate to the
same three daughters, and he went on to direct that the share
to which each daughter would be entitled under the appoint-
ment and the residuary gift should be held in trust for the
daughter for life, with remainder to her children. The appoint-
ment was held to give the daughters an absolute interest ; (and
see Carver v. Bowles, 2 R. & M. 304 ; Woolridge v. Woolridge,
John. 63 ; Kampf v. Jones, 2 Keen, 756 ; Harvey v. Stracey,
1 Drew. 137—140; Stephens v. Gadsden, 20 Beav. 463;
Jie Sondes, 2 Sm. & G. 416 ; Be Boyd, 63 L. T. 92).
But no case has yet gone the length of deciding that, if the
donee of a limited power appoints to an object of the power in
trust for strangers, the object would hold the fund for his own
benefit. In such a case it would probably be held that the
whole appointment was one and indivisible (cf. Bucl-er v.
Scholefield, 1 H. & M. 36 ; Gerrard v. Butler, 20 B. 541 ;
Tonih/ns v. Blane, 28 B. 422 ; Sug. Pow. 518, and post, s. 20) ;
or perhaps the true objection against holding such an appoint-
ment valid would be that there was no intention on the part of
the appointor to benefit the object to whom the appointment
was actually made (see ITamilfon v. Eoyse, 2 Sch. & L. at p. 332).
In the cases above refen-ed to, the appointees have aU been
primary objects of the appointor's bounty, and the quantum
only of interest given has been modified. If there were no
intention to benefit the appointee at all, it would be difficult to
hold that he took absolutely. In Wilson v. Wilson (17 W. R.
220), a testator appointed to A. and B. (objects of the power),
upon trust for various purposes, some within and some without
302
A CONCISE TREATISE ON POWERS.
the scope of the power, and he appointed the residue, including
all such portions the appointment whereof should from any
cause fail, to A. and B. absolutely. This was held good ; (see, too,
Sicinbunw v. Fiff, 27 Ch. D. 696 ; Be Meredith, 3 Ch. D. 757 ;
WaJUnger \. WaUiuger, 9 Eq. 301).
stransror ■will
defeat the
original
appointment
if the event
happens.
Anexecutorj- 12. If there be a gift over to a stranger by way of
gift over to a t • • t • • i • pj ^L^ i
executory limitation, the original gilt, although
distinct from such gift over, will fail on the
occurrence of the event on which the executory
gift was limited to take effect, notwithstanding
that such gift over, being to a stranger, cannot
have any validity [Doe d. Blomfield v. Eyre, 5
C. B. 713; Sag. Pow. 512—14; Rohinson v.
Wood, 27 L. J. Ch. 72G).
In Doe V. Eijre, the donee of a power of appointing real
estate among children, appointed to a son in fee, subject to a
charge in favour of another son. But in case neither of her
sons should be living at the decease of her husband, she
appointed to her trustee on trust for persons not objects of the
power. The Court of Exchequer Chamber held that the son
took a vested defeasible estate in fee, and that the appointment
over alone was void ; and as both the sons died in the lifetime
of the father, the estate thereupon became divested and went as
in default of appointment. On the other hand, in Gatenhij v.
Morgan (1 Q. B. D. 685), a testator by will in 1811 devised
real estate to his daughter and her heirs; but if she died
without issue living at her death, to the use of the nine children
of A. equally. The testator's daughter died without issue, and
one child of A. survived her. It was held that this child took
for life only, that the executory devise affected the daughter's
estate to the extent of such life estate only, and that subject
thereto the property remained in the daughter and her heirs.
In Jackson v. Noble (2 Keen, 590), there was a gift to trustees
on trust for A. for life, and after her death on trust to convey
EXCESSIVE EXECUTION. 303
to her lioirs, executors, &c. ; but in case A. should marry and
have no children, then the property to belong to I). ; or in ease
of his decease before A., then to his children. D. died in the
lifetime of A., leaving no children. A, married and had no
children. The Master of the llolls said, that having regard to
the intention of the testator and the words in which the gift
over was expressed, that gift over was to take effect only in the
event of A.'s marrying and dying without issue in the lifetime
of D., or of his children ; and as he died in A.'s lifetime without
children, the contingent executory gift could not take effect, and
the vested estate of A. could not be divested ; (and see Brown v.
Nishett, 1 Cox, 13 ; Ridgway v. Woodhouse, 7 B. 437 ; Hurst v.
Ilitrst, 21 Ch. D. 278; Bate v. Willats, 37 L. T. 221).
The question seems to be one of intention in each case, i.e.,
whether the testator or appointor meant that the original gift
shoidd be absolute, unless the event on which the executory gift
over is limited happened, and the gift over was then capable of
taking effect ; or whether the original gift was intended to cease
absolutely on the hapjiening of the event on which the gift over
is limited, irrespective of the validity of such gift over (see Wehb
v. Sadler, 8 Ch. 419, 426). If, however, the gift over trans-
gresses the rules against perpetuity, it is void, and the first gift
remains absolute (Sug. Pow. 514 ; lie Broioi and Sib///, 3 Ch.
D. 15G; IJarm. 283).
13. If there is an appointment to an object, followed Executory
by an appointment to a stranger absolutely, with object in de-
. • i J • i • i feasance of an
an executory appointment over m certain events appointment
to an object, this executory appointment will fail isgoldl^\l\
or take effect according to the event : if the event the event.
on which it is to arise happens, it will take effect ;
if not, it will fail.
The same rule would apply if the appointment were by will to
a stranger direct, with an executory appointment over ; thus, if
there be an appointment by will to A., a stranger, in fee, but if
30-i A CONCISE TREATISE ON POWERS.
lie die "W'itlioiit issue living at his death, to B., an object, the
validity of this latter gift would depend on the event : if A. died
without children, B. would take ; but if not, B. could not take,
although A,, not being an object, could himself take nothing;
and during A.'s lifetime, the estate wovdd go as in default of
appointment.
In Ahwamler v. Alexander (2 Ves. sen. 640), the donee of a
power of appointing personalty amongst children appointed to a
daughter, C, for life and after her death to her children then,
living : in default of such children, the property was to go to her
if she survived her husband, but if she predeceased him, to J. and
M., two other children of the donee. The appointment to the
children of C. was of course bad ; and the Master of the Eolls
said, that if 0. left children at the time of her death, it was im-
possible that any of the limitations over could take effect :
that her children, although they could not take themselves, would
yet prevent the limitation over. The contingency of the death
of C. without leaving any children living at her death was not
mentioned in the judgment.
In Boidledcje v. Dorril (2 Yes. 357), Lord Alvanley says, it
would be monstrous to contend that although the appointment
to a child is expressed to be on failure of the existence of persons
incapable of taking, yet, notwithstanding they do exist, the child
should take as if it was not ax3pointed to them.
In Lourj V. Orenden (16 Ch. D. 691), trust funds were vested
in trustees for A., B., and C, in such shares as M. should by
deed or will appoint, and in default for the same three persons
absolutely. M. appointed one-thii^d of the fund to A. for life or
until alienation with remainder to a stranger (A.'s son), and if
he should die before attaining twenty-one, then to B. A. sur-
vived M., and died while his son was still an infant. It was held
that the appointment to B. would be good, if A.'s son died under
twenty-one, and in that event would carry the income from A.'s
death : but that, if the son attained twenty-one, the appointment
to B. would fail, and both capital and income of the share would
go as in default of appointment; (and see Williamson v. Farwell^
35 Ch. D. 128).
EXCESSIVE EXECUTION. 305
The gift fails or takes effect according to the event. In Altematiye
Crompc V. Barrow (4 Ves. G81), under a power to appoint among
children, there was an appointment to a cliild for life and after
his decease to his wife and children ; but in case he should die
without leaving a wife or child him surviving, then to another
object of the power. The Master of the Holls held the ultimate
appointment good, and distinguislied the case from Iloutlciltjc v.
Dorril and RoJtutson v. HdrdcaHtlc (1 T. R. 241), on the ground
that the limitation over in this case was in effect to A. if B.
should die without leaving a wife or children him surviving.
"It fails as far as it affects to give interests to the children ; but
is there any occasion to make it fail upon the other point, the gift
over to a person who is an object of the power? Why am I to
exclude the person taking over, who has a right to take? There
are two alternatives : if B. leaves no wife or children at his death,
then the limitation over, being to a good object, shall take effect ;
if he does leave a wife or children, then it cannot take effect."
In Ileu-itt V. Dacrr (2 Keen, 622), the donee of a power of
appointment among children, by wall appointed shares to two of
his daughters for life, " and in case any of the testatrix's children
shoidd die before her, she gave the share of him or her so dying
to his or her lawful issue ; but in case there should be no such
issue, the survivors or survivor of the testatrix's own children
to take." The Master of the Rolls said there was an alternative
gift : it was as if the testatrix had said. If my daughter die in
my lifetime and shall have issue, I give her share to such issue ;
but if she has no issue, I give her share to the survivors or survivor
of my own children : as to the latter alternative the appointment
is good in favour of the childi-en surviving at the death of the
testatrix ; (and see Lewis on Perpetuity, 501).
14. Appointments to a contingent class are good, although Appointment
there may be a period durmg which the persons who will form class ; or to
that class are not ascertained ; and an appointment which is ]„Zf^,^^
made to take effect at a future period is not void ab initio, because
it may, when that period arrives, include persons not objects of
the power ; and an appointment made to take effect at a futiu-e
period does not, if severable, become void in toto, because it tiu-ns
F. X
306 A CONCISE TREATISE ON POWERS.
out wlien that period arrives that it actually does include persons
not being objects of the power. The rule, as stated by V.-C.
Kiudersley in Hanry v. Stracoij (1 Drew. 136), is as follows :
" If a fund is appointed to objects of the power, that is, if in
that respect it is correct, the appointment will be valid, notwith-
standing that the persons who are to take as appointees, or the
shares and interest which they are to take under the appointment,
are made contingent upon a future event, provided the con-
tingency must happen within the period prescribed by the rules
relating to perpetuity ; and if the fund is appointed not entirely
to objects of the power, but partly to strangers, it will be still
valid quoad those who are the objects of the power, and the
appointment will fail only as to those persons who are not
objects of the power."
In Re Farncomhe (9 Cli. D. 652), there was a power to appoint
among issue in existence at the date of the deed of appointment.
An appointment was made by deed to a daughter for life, with
remainder to the daughter's children in equal shares on their
respectively attaining twenty-one, but if any died under twenty-
one leaving issue, the share of the child so dying was to go to
such issue and to vest at twenty-one. It was held that on the
construction of this appointment it included strangers, i.e., issue
bom after its date : that the appointment was not thereby
avoided in toto, but that the share of each object would be
determined by the total number of objects and strangers who
should fall within the class in whose favour the appointment
purported to be made; (and see, ante, pp. 144 — 147).
So, an appointment to an object of the power for life with
remainder to bis next-of-kin, will take effect, if at the death of
tenant for life his next-of-kin are objects of the power [Re
Couhnan, Munhij v. Ro^s, 30 Ch. D. 186).
Appointments 1-J. Powers may also be exceeded by limitations to or trusts
to objects and -r. r. i , ^ • i -r ^^ • ^
strangers by ^^ lavour Or persons who are not proper objects, in the simple
siveUndt'^^'^^^ case of an appointment of real or personal estate to A., a
tions. proper object, for life, with remainder to B., not an object,
absolutely, the rule above stated (s. lOj applies, and the appoint-
ment to A. for life is good, and the remainder to B. fails, and
EXCESSIVE EXECUTION. 307
the estate which purports to have been appointed to liini, goes
as in default of appointment.
If the aj^pointment wore by will of real estate to A. for life
as before, with remainder to the children of A. (not objects) in
tail, the rule of cijprea would give A. an estate tail {aeeposf,
8. 22, p. 315).
But the case is less simple when the legal estate in land is
appointed to a stranger for a particular estate, followed by
limitations to objects, and different rules apply to such appoint-
ments according as they are made by deed or by will.
If the legal estate in land be appointed b}' deed By deed.
to a stranger for life with remainder to an object
in fee, the whole apiDointment fails.
This rule is founded on the rule of law which requires every
legal remainder to be supported by a particular estate of freehold.
In BnukncU \. Ehces (I East, 442), the donee of a power of
appointment among children appointed by deed life estates to a
son and daughter respectively, with remainder to trustees to
preserve, with remainder to the son's sons in tail, with re-
mainder to another son for life, with remainder to trustees to
preserve, with remainder to the second son's sons in tail, with
remainder to the daughter in fee. Both the sons died without
issue ; but it was held that the remainder in fee to the daughter
was invalid, as it was dependent on the invalid limitations to
the sou's sons. And the appointment being by deed the doc-
trine of cypres could not apply, nor could it be in any way
dependent on the event, for a deed speaks from its own date,
and the estate created must be good ah itiifio in order to take
effect.
It is enacted by 40 & 41 Yict. c. 33 as follows: — ''Every Contingent
contingent remainder created by any instrument executed after Act.
the passing of this Act (2nd August, 1877), or by any will or
codicil revived or repubhshed by any will or codicil executed
after tliat date, in tenements or hereditaments of any tenure
which would have been vahd as a springing or shifting use or
x2
308 A CONCISE TREATISE ON POWERS.
executory devise or other limitation, had it not had a sufficient
estate to support it as a contingent remainder, shall, in the event
of the particular estate determining before the contingent re-
mainder vests, he capable of taking effect in all respects as if the
contingent remainder had originally been created as a springing
or shifting use or executory devise or other executory limitation."
It is submitted that this Act has no application to the limita-
tions mentioned in the rule. The Act applies only to contingent
remainders; and the remainder suggested is in terms vested,
although the tenant for life cannot take : it is simply a limita-
tion of land in futuro, and as such must fail for want of a par-
ticular estate to support it. And it may be doubted whether
the Act applies, if the remainder is in terms contingent, e. g., if
the limitation is to a stranger for life, with remainder to such of
the objects of the power as are alive at his death or as shall
attain twenty-one. The Act mentions the determination only,
not the failure, of the particular estate ; and, although it may
be a narrow construction to place on the Act, it may be said
that it is not legitimate in construing an Act of parliament to
read " determination or ending " as including that which is
usually contrasted with it by conveyancers, namely, " failure to
commence."
By •will. An appointment by will of a particular estate
to a stranger, with remainder to an object, is a
good aj^pointment in remainder ; but the particu-
lar estate fails, and the subject of the power,
during its continuance, goes to the j^ersons
entitled in default of appointment.
In Crozier v. Crozier (3 Dru. & War. 853), there was a devise
of lands subject to a power of appointment among children to
the testator's wife for life, on condition that she maintained his
children thereout. The testator then bequeathed 500/. to each
of his younger children and devised the said lands to his eldest
son in fee. The devise to tlie wife was held void, except to the
extent necessary to enable her to maintain the children, and to
EXCESSIVE EXECUTION. 309
raise 500/. for each of the younger ones, and the residue during
her life wont as in default of appointment : the son's remainder
was held good, but was not accelerated.
In that case Lord St. Leonards examines the law on the sub-
ject of devises and testamentary appointments in an exhaustive
judgment. As to devises, he says that althougli the particular
estate is given to a person incapable of taking, or is not given
at all, the devise in remainder or at the future time is valid.
"Now this depends wholly upon intention, which the Courts
execute even at the expense of the general rule of law, and this
intention is thus executed, because the disposition is by will.
Whether a man have the fee vested in him, or only a general
power of appointment, his intention expressed in his will is
equally to be executed. It matters not whether he appoints or
devises, provided he do not exceed his power. . . . There
ought to be no trifling distinctions between power and property
upon merely technical grounds. The object of powers sanc-
tioned by law is to enable the donee, to the extent of his
authority, to do what a commensurate estate would have en-
abled him to accomplish." He then reviews the cases of Alexan-
der V. Alexander (2 Yen. sen. 640) ; Diikc of Devonshire v. Caven-
dish (4 T. E. 741, n.) ; and Robinson v. Hardcastle (2 Bro. C. C.
22, 344) ; and concludes that the question turns upon the in-
tention, and not upon anything peculiar to powers, beyond the
circumstance that the invalidity of the intermediate estates was
occasioned by an excess in the execution of the power : and he
considers that the same rule would be applicable whether such
intermediate estates were invalid by an excess of the power, or
by reason of a general rule of law ; (and see Reid v. Reid, 25 B.
469).
But these distinctions are not appHcable to personalty, or to These rules do
equitable estates in land. The destruction of a contingent personalty,
remainder depends on the feudal law which required the free-
hold to be always vested in some existing person.
16. An appointment by will to an object in remainder, Remainder
after a particular estate to a stranger is not accele- rated.
310 A CONCISE TREiVTISE ON POWERS.
rated, unless a contrary intention can be gathered
from the instrument executing the power : but the
estate goes during the period over which the parti-
cular estate, if valid, would have extended, to the
persons entitled in default.
In the case of the devise or bequest of a particular estate
which fails, the remainder is accelerated, in the absence of
intention to the contrary : in the case of wills executing powers,
although the particular estate fails, the remainder continues
such, and the estate during the life of the intended taker goes
as in default of appointment {Crozicr v. Crozier, 3 Dru. & War.
353, 365).
Unless an But if the intention is clear, the remainder may be accele-
intention be . ,
shown. rateci.
In Craven v. Bnuhj (4 Eq. 209; 4 Ch. 296), the donee of a
general power appointed real estate to his wife for life, and from
and after her death to his son, with a proviso that if she should
deprive herself of the rents and profits (which event happened)
" her life estate should cease and determine as fully and
effectually as it would by her actual decease." The M. R,
considered that the testator had expressed a clear intention that
if the appointment to his wife for life should cease by reason of
any forfeiture, in that case the appointment in favour of the son
should take effect at once; and he held accordingly that the
son's estate in remainder was accelerated ; and this was affirmed
on appeal.
8o, in Line v. Hall (43 L. J. Ch. 107), a father had power to
appoint among children, and by his will appointed to trustees
for a term of years on trust to raise portions for grandchildren
(strangers) , with a proviso for cesser of the term when the trusts
should have been fully performed or should have become in-
capable of taking effect, with remainder, and in the meantime
subject thereto, to a son for life, with remainder to his issue in.
tail. This was held a good immediate appointment to the son
in tail, the term being, within the words of the appointment,
" incapable of taking effect."
EXCESSIVE EXECUTION.
311
17. If the donee attempts to delegate his power, but a delegated
, „ power does
docs not ai)])oiiit any estate m contravention ot not prevent
. . , , , the f^'iits over
the terms of the power, and appomts ni dciault dependent on
it from taking
of the execution of the dcle<^atcd i)owcr to proper effect,
objects, tliis will be a A^alid appointiiicHt to llicm,
the will being read as if the words purporting to
delegate the power formed no part of it {lufjram
V. lutjram, 2 Atk. 88; Williamson v. Far well, 35
Ch. D. 128; Slar/c v. Dakf/ns, 10 Ch. 35; Stock-
bridge v. Storfj, 19 W. R. 1049).
In Carr v. Atkinson (14 Eq. 397), .the appointment was to M.,
an object of the power, during her life, and after her decease on
such trusts for the benefit of any surviving husband (not an
object of tbe power) of M. for his hfe or any shorter period as
she should, notwithstanding coverture, by will appoint ; and
subject thereto, in trust for other objects of the power. The
M. E. held that the will was to be read as if the words which
related to the delegated power formed no part of it, and that
the construction of the will was not affected thereby.
In Wchh V. Sadler (8 Ch. 419), there was an appointment
under a power of appointment among children to trustees, on
such trusts as H. (a son) by deed executed with the consent of
the father during his life, and after his death with the consent
of the trustees of his will or by will, should appoint, and in
default, on trust for H. for life or until bankruptcy, and after
his death for his executors and administrators. It was held that
the appointment on such trusts as H. should appoint, with
consent, was void, but that the limitation over in default was
valid, and gave H. an absolute interest subject to forfeiture on
bankruptcy. The Lord Chancellor said: "The declared in-
tention is, that unless estates that would displace this gift to the
son are created in favour of other persons by means of the
power, then the son is to take under this part of the instrument ;
and if the power is void, then no such estate could be created,
312 A CONCISE TREATISE ON POWERS.
and the event never could arise wliicli alone was meant to prevent
the gift in favour of the son taking effect."
Appointments 18. Powers may also be exceeded by appointments to persons
^^gers "''''^ who ai-e and persons who are not objects of the power,
equallj-.
If the appointment be to persons some of whom
are, and some are not, objects, and the appoint-
ment to the object is distinct and severable from
that to the stranger, it will be valid, and the latter
alone will fail.
In Bruce v. Bruce (11 Eq. 371), under a power to appoint an
estate among A. B. and C, an appointment was made to A.,
charged with 3,000/. for the benefit of B., C. and D. This sum
was held well appointed to B. and C. A. appears not to have
claimed any part of the 3,000/. If he had, he would have been
entitled to a share according to Sadler v. Fratt (5 Sim. 632) ;
and see Be Farncomhe (9 Ch. D. 652).
In Be Kerr (4 Ch. D. 600), a fund was given by will on trust
for such of the children of M. as she should by will appoint,
and in default of appointment for her children equally. She
appointed the fund by will to her " children E. and C, their
executors, administrators, and assigns, for their [own use and
benefit." E. was illegitimate, and C. legitimate. This was
held to be an appointment of the fund in moieties, one moiety
being well appointed to C, and the other devolving as in default
of appointment. The difficulty in the case arose from the fact
that the appointment was to the appointees as joint tenants. If
the appointment had been to them as tenants in common, there
would have been no difficulty. It is by no means clear that the
M. R. would have come to the same conclusion if the appointed
property had been real estate.
If the gifts to 1^- If ^^^^ appointment be to persons as a class,
and to^stran- somc of whoui are and some are not objects, and
gers are not j^^ ^y impossiblc to define how much of the ap-
separable. *■ ^
EXCESSIVE EXECUTION. 313
pointment falls within the power and how much
without it, the wIkjIo appointment will fuil.
In Mr Broicn (1 Eq. 74), there was a power of appointment
among " all and every the children or child or more remote
issue " of a marriage given to the wife. She appointed to
trustees upon trust to pay the income to the only child of the
marriage for life, or until ho hecamo hankrupt or assigned, and
then to trustees for his hfe " for the benefit of the said son, his
■wife and children, or any of them, as the trustees should think
expedient." The appointment was held void in toto. The first
appointment to the son until death or assignment or bankruptcy
was good {Can- v. Af/aii-son, 14 Eq. 397) ; the report seems to
imply that it was altogether bad ; but as the son had assigned,
his estate had then terminated, so that it was not necessary to
consider the point. Alexander v. Alexander (2 Ves. sen. 640) is
not an authority on this point.
In Harvey v. Stracey (1 Drew. 73, 117), the Vice-Chancellor
says : " Now when an appointment is to a class, some of whom
are within, and others are not within the proper limits of the
power, if the class of persons is ascertained, so that you can
point to A., who is within the limits, and say so much is to go
to him, though the others are not within the limits, yet the
appointment to A. shall take effect ; but if the appointment is
to a class, some of whom may, and others may not, be objects of
the power, and there is nothing to point out what portion is to
go to those who are within the power, and what to those who
are not, the whole fails."
20. If there be no absolute appointment to an object The appoint-
of the power, but the appointment is coupled with absolute and
the whole series of invalid limitations over, so as to oidc^to"^
form one system of trusts, the wlude appointment ^^^^^ '
will fail.
In Rucker v. ScJioleJield (1 H. & M. 36), the donees of an
314 A CONCISE TREATISE ON POWERS.
exclusive power of appointing among children and their issue
born during the donee's lifetime, appointed that the trustees
should stand possessed of the fund upon the trusts following,
that was to say, on trust to appropriate one-fifth for the benefit
of each daughter, and to pay and apply the income of the share
of each for her separate use; and after the decease of each
daTighter, upon trusts for the benefit of her childi-cn. The life
interests only w^ere held valid. V.-C. Wood said : " In all cases of
this kind, the question turns upon the language in which the
appointment is attempted to be made. If you find a clear and
definite gift of the property to be appointed, and then, engrafted
upon that, subsequent provisions directing the fund to be settled,
so as to show that the purpose was, first, to make the gift to
and for the benefit of the person named, and then to have the
fund settled : in a case of that kind, if the limitations of the
proposed settlement are such as cannot become operative, the
first absolute gift is held to take effect without restriction. So
if you find a clear gift, followed by words which aifect to divest
it, and the limitations over are imperative, then the Court will
uphold the gift, striking out the limitations which cannot have
any legal efl^ect. But if the words of the original gift are
coupled with the whole series of limitations over, so as to form
one system of trusts, then all that can be done is to give effect
to so much of the limitations as may be consistent with law."
In that case, the trustees were to stand possessed of the fimd
"on the trusts following:" then followed the trusts as above.
The reference to the trusts following must be taken to include
all the trusts, following, as they did, in one connected series.
He held it impossible to stop after the first part, which, if it
stood alone, would no doubt confer absolute interests on the
daughters ; but he must take the reference to be to the whole
system of trusts, and the result was that each daughter took a
life interest in one-fifth for her separate use, and, subject to
that, the fund went as in default of appointment. It is a
question to be decided in eacli case, whether the words of ap-
pointment are sufficient to vest the property in the objects of
the power absolutely v/ith something improper superadded, or
EXCESSIVE EXECUTION. 315
whether the superadded terms constitute an essential part of the
appoiufmont itself; (and see Ecid v. Reid, 25 B. 469).
21. Although the Court will uphold 7;/'o tanto an appointment Are appoint-
wliich is partly good and partly bad if the good and bad are tionable^m"^"
separable, it is doubtful wlietlier tliis principle could in practice ^^^I^'^tof tl>e
bo extended so as to apportion an appointment, not in respect of '^'^ne under
til cm ?
the persons to whom it is made, but of the acts to be done by
its direction. Tims in Fcrrand v. Wihon (4 Ha. 344), where the
power was to cut timber and accumulate the produce for a term
beyond that allowed by law, V.-C. AVigram (p. 377) doubted
whether a power, not to effect a single act at a period too
remote, but to do successive acts from time to time, each being
2)ro ianto an exact fulfilment of the intention of the testator,
might not be apportioned and sustained, so far as its operation
in each case did not evade the rule against perpetuities, and
held void only from the time tliat it would begin to infringe
that rule. On principle, there would appear to be no objection,
but it is difficult to see how any such power could be modelled
so as to preserve the intention of the testator (but see ante^ s. G,
and Jce v. Audlcy, 1 Cox, 324).
22. The Court in some instances interposes in favour of the Cyprii.
general intention and executes the particidar intention c[/pres.
The doctrine of cypres applies to testamentary
appointments as Avell as to devises [Stackjjoole v.
StacJqwole, 4 Dr. & W. 320). But it does not
apply — 1, to appointments by deed (Brude)icll v.
Ehucs, 1 East, 440) ; 2, to appointments of per-
sonalty ( Routledge v. Dorril^ 2 Ves. jun. 357, 365);
3, or [scmhle) to appointments of blended real and
personal estate {BougJdon v. James^ 1 Coll. 44).
The doctrine of ci/pres, as applicable to ordinary' devises, is
thus stated by Lord Mansfield in Cliapinax v. Broioi (3 Burr.
1626) : — " Where there is a limitation for life to a person un-
born, with remainder in tail to the first and other sons, as they
316
A CONCISE TREATISE ON POWERS.
Doctrine of
ct/pris.
Restriction.
cannot take as purcHasers but may as heirs of the body, and as
the estate is clearly intended to go in a course of descent, it shall
be construed an estate tail in the person to whom it is given for
life." It has been said that the doctrine is not to be extended
{Parfitt V. Hemher, 4 Eq. 443, and contra, Mortimer v. West, 2
Sim. 274) ; and it is inapplicable where the limitation to unborn
children gives them the fee {Hale v. Pew, 25 B. 335 ; ITuinber-
sto)/ V. Humherdon, 2 Yern. 738) : but its application is not
limited to wills of an executory nature {ibid.). The doctrine is
considered and explained by Jessel, M. R., in HaDipton v.
Hohnan (5 Ch. D. 183). And by analogy to this rule,
If the donee of a power appoint by will to A.,
an object of the power for life, with remainder in
tail to his first and other sons who are not objects,
this shall be construed an estate tail in A. [Pitt v.
Jackson, 2 Bro. C. C. 51 ; Stackpoole v. Stackpoole,
4 Dr. & War. 320).
But the particular estate must be appointed for an estate of
freehold ; a term of years determinable on lives will not suffice
to found an estate tail upon {Beard v. Westcott, 5 Taunt. 393) ;
and the appointment in remainder to the children must be to
them in tail {Briatoic v. Wardc, 2 Ves. jun. 336 ; Hale v. Peiv,
25 Beav. 335 ; Humherston v. Hamberston, 2 Vern. 738).
And although by this doctrine an estate may be earned
otherwise than in the exact form and manner indicated by the
testator, yet it must always be in favour of a class or part of a
class of persons intended to be provided for by the testator
{Monyjjenny v. Bering, 2 D. M. & Gr. 145). In that case,
estates were devised to A. for life, remainder to his (unborn)
first son for Hfe, remainder to that unborn son's first son in
tail male ; and the Lord Chancellor said he could not by the
doctrine of cypres include any limitations which would provide
for the second and other sons of the first grandson, contrary to
the words of the will. In Pitt v. Jackson, however, the estate
was carried in a different form and manner ; for the remainder
EXCESSIVE EXECUTION. 317
was to the grandchildren as tenants in tail in common ; the
tenancy in common Avas rejected. In Line v. Hall (43 L. J. Ch.
107; 22 W. R. 124) a father had power to appoint land by
will to any one or more of his children, lie gave it with other
lands of his oanti to trustees for a term to raise portions for
grandchildren (not objects) ; and subject thereto to a son for
life with remainder to his issue in tail. It was held that the
son took cijpreH an estate tail in the appointed property.
23. But the rule is not to be applied except when the neces- Applicatioa
sity of the case requires it : the Court will therefore apportion apportioned,
its application. In VanderphDik v. King (3 Ha. 1), there was
a devise to A., the testator's daughter, for life, and after her
decease to all and every the child or childi'en of A. for their
respective lives, and after the decease and respective deceases of
such child or children of A., to all and every the child or chil-
dren of all and every such child or children of A., and the heirs
of his, her, and their respective bodies, as tenants in common.
Although the devise was to the children of A. as a class, the
children of A. born in the testator's lifetime were held to take
estates for life, and the estates devised to the children of an
afterbom child were alone altered.
24. "WTiere the estates created are excessive, the rule is ana-
logous to that stated in s. 10 with reference to limitations to or
conditions in favour of strangers to the power.
If there is a complete execution of the power, Excess by
but something more is added, whether by way of larger than
limitation or otherwise, and if the Court can see
the boundaries, so as to separate the good from
the bad, it will uphold the execution jn'o tanto.
" Where an act is done in execution of a power, though the
party goes beyond the power, yet if you can sever what is be-
yond the power from what agrees with it (as for instance where
the appointment is made subject to a limitation over, and the
power did not authorize such a limitation), you may reject that
pai-t of the instrument, and let the appointment stand for the
318 A CONCISE TREATISE ON POWERS.
rest ; but you must see clearly and distiuctly what the person
alleged to have executed the power had in view, and that lie
apphed his mind in such a way, that you are satisfied that if he
had rightly understood the extent of his power, he would so
have executed it " {per Lord Eedesdale, 2 S. & L. 332).
A lease for forty years under a power to lease for twenty-one
•years has accordingly been held good for twenty-one years
{CampheU v. Leach, Amb. 740; Alexander v. Alexander, 2
Yes. sen. 644). And if the like power were exercised by
a lease for twenty-one years, and upon the determination
of that estate for a further term, it would be good pro tanto.
But it mil be otherwise if the execution be bad ah initio
as transgressing the essence of the power— f. g., if under a power
to grant leases in possession for twenty-one years, a lease in
reversion for forty years be granted, it will fail in toto. So, too,
a lease of land held for charitable uses is absolutely void, if it
be made for more than twenty-one years without the leave of
the Charity Commissioners {Biahop of Bangor v. Parnj, 1891,
2 Q. B. 277).
A power to charge a particular sum, as 7,000/., will be duly
executed by a charge of a larger sum, as 8,000/., and the excess
only will be void (Sug. Pow. 521, citing Parker y. Parker, Gilb.
Eq. E. 168).
What is a 25. In considering what is a sufficient execution in respect of
lon^i^re'spect the estates or interests given by the appointments, it is not
°ive^n ^^^""^^^ always easy to ascertain from the decided cases whether the
Court has held that the appointment was good in fact, or
whether it has held it good in equity, in the sense that, though
defective, equity would aid and cure the defect. The dis-
tinction may be important, because it is not every case of
defective execution that is aided (see Ch. YII., i>o.s/). Cases
where such a question arises must necessarily be those only
where the power is limited ; for the donee of a general power
has in effect absolute dominion over the property subject to the
power, and can deal with it by means of his power as fully as
if he were seised in fee or absolutely possessed of it ; but the
donee of a limited power has a duty to perform towards the
EXCESSIVE EXECUTION. 319
objects of liis power, and cannot arrogate to himself rights of
ownership beyond such as the author of the power may liave
given him. The Court lias given effect to executions of powers
in many instances where the intention to execute in accordance
with the spirit of tlio power has been clear, although at law they
might be invalid ; e. g., a limitation to tlio use of such of the
children of A. as he should appoint would be well executed in
equity by an appointment to trustees on trust for such children :
but such an appointment would be void at law ; that is to say,
the use raised by virtue of the power must necessarily be in
Bome of the persons named, and the legal estate would not be
carried to the trustee, because he is not one of such persons ;
nor to the children, because the appointor has not designated
them for that purpose. But in such a case the appointment is
good in equity, because it complies with the purposes of the
power, which is that the children shall have the estate, and the
interposition of a trustee is mere machinery ; (see 2 Preston,
Abstracts, 270). It has been held that uses under the Statute
of Uses can only arise under the exact circumstances specified
(Wrig/it V. Wcikr/ord, 4 Taunt. 213 ; Newman v. Warner, 1 Sim.
N. S. 457) ; but this is confined to the legal estate raised by the
statute, A more liberal construction has been extended to the
execution of powers in equity ; and the principle acted on may
be stated thus : —
Appointments made in substantial accordance
with the expressed purpose of the power, although
not strictly in accordance therewith tnodo ef for met,
are good appointments in equity.
Thus in Thornton v. Briyhf (2 ^M. & C. 230), real estate was Appointment
settled on the marriage of A. to the use of himself for Hfe, with t^tS knd
remainder to the use of the children of the marriage for such **^ trustees,
estates and in such shares and with such limitations over and
charged with such sums for the benefit of such childi-en and in
such manner and form as A. should appoint ; personal estate
was also vested in the trustees of the settlement on similar
320 A CONCISE TREATISE ON POWERS.
trusts. A. by his will appointed to trustees (not the trustees of
the settlement) on certain trusts for the benefit of a child of the
marriage ; this was held valid by the Vice-Chancellor as to the
personalty, but void as to the realty : on the latter point he was
reversed, and the appointment was held good as to both. In
Rent-charge Herveij V. Hcrvc]! (1 Atk. 561), it was attempted to execute a
power to jointure by appointing the estate to trustees, on trust
to pay an annual sum to the wife. Lord Hardwicke said that
a power to jointure was a power to create a legal estate (Co.
Litt. 36 b.), and was not well executed by creating a trust; but
he considered the wife entitled to her jointure in equity, and
decreed accordingly.
In equity, a power to appoint an estate authorizes a sale and
a gift of the produce of the estate {Crozier v. Croztcr, 3 Dru. &
"War. 371 ; CJiurchman v. Harvey, Amb. 339),
Appointment In Koucorth;/ V. Bate (6 Yes. 793), land was limited to the
sal^ ^ ^ ° use of such children of A. as he should appoint : an aj)point-
ment by him to trustees on trust to sell and divide the produce
among the children was held to be substantially a good appoint-
ment.
In Folder v. Cohn (21 B. 360), the Master of the Eolls said:
" I find it quite settled by the authorities that a general power
of disposition (among a class) of the whole property includes
the power of sale, and consequently the power of sale is in-
cidental to the power of disposition of the property in such
manner and form, although the original will does not expressly
include a direct power of sale"; (and see D'Abbadie v. Bizoin,
5 I. E. Eq. 205 ; Re Swinburne, 27 Ch. D. 696).
Power to A power to charge to an unlimited amount will authorize a
° ' like appointment {Lonrj v. Long, 5 Ves. 445).
Execution, by And a power to appoint for such estate or estates in such
creation of a ,, , .. -i • ^ ij-
term of years, parts, shares and proportions, and m such manner and lorm as
charge' ^^® appointor should think fit, has been held to authorize an
appointment to trustees for 500 years, on trust for objects of
the power [TrolJope v. Linton, 1 S. & S. 485). So a power to
appoint and divide land enables a charge of money on the land
{Roberts v. Dixwell, Sug. Pow. 930 ; Thwaytes v. Dye, 2 Vern. 80).
EXCESSIVE EXIX'UTIUX. 321
In Richetts v. Loftm (4 Y. & C. Ex. 519), there was a limita- Rentcharge.
tion to the use of the children of A. for such estate or estates, and
in such parts, shares and proportions, manner and form as A.
should appoint ; an appointment of a rent-charge to one child,
and the estate, subject thereto, to another was hold good.
A power to raise a sum of money would prohably he held to
authorize the limitation of an annuity or rent-charge {Marnell v.
Blakc, 4 Dow, 248). And in JLt.skerri/ v, C/t inner// (LI. &
Gr. at p. 227), Lord St. Leonards says that such a power might
probably bo exercised by a lease on a fine ; (and see Sug. Prop.
H. of L. 48G ; and Dennett v. Pass, 1 Bing. N. C. 388).
A power to appoint the fee authorizes the appointment of any Less estate
smaller interest {Bovey v. Smith, 1 Vern. 84), and also of any be apiwinted.
legal limitations within the scope of the power, which may be
served out of the fee {Crozier v. Crozier, 3 Dr. & War. 353, 370).
A power to appoint estates to be purchased with money to Appointment
arise from the sale of other settled estates is well exercised by an gtead of pro-
appointment operating directly on the original estates {Bnllock ^^^l^^ *^'^
V. Fladgate, 1 V. & B. 471).
A power to an executor to raise 500/. of the testator's estate, To raise
. . . 1 • P money,
accompanied by a direction to see debts paid, gave a power of
sale for those purj)Oses {Wareham v. Broicn, 2 Vern. 154;
Bateman v. Bateman, 1 Atk. 421).
A power to appoint a sum of money, or to charge a gross sum To charge a
on an estate, authorizes the appointment of interest thereon {Roe interest.
V. Pofjson, 2 Madd. 457) ; and a power to raise a fixed sum by
mortgage implies a power to raise the costs of the mortgage also
{Armstrong v. Armstrong, 18 Eq. 541). The appointment, how-
ever, of (say) 5,000/., part of a sum of 20,000/., does not
necessarily carry interest ; the rule is, that if the appointment
is vested and the sum appointed is severed from the residue, it
will carry interest {Dandas v. Wolfe Murrai/, 1 H. & M. 425).
But if the sums given are contingent on some future event, no
interest is payable {Gotch v. Foster, 5 Eq. 311 ; and see j^ost,
" Powers of Charging ").
A power to appoint on sudi trusts as the donee pleases in favour To appoint on
of a class gives him a right to declare a trust for sale and to
v. V
322
A CONCISE TREATISE ON POWERS.
Receipt
clause.
To convert.
Mixed fund.
Life estates
■witli remain-
ders over.
Appointment
for life with
general power
of appoint-
ment.
add sucli further trusts as may be necessary to effectuate his
piu'pose, iucluding therein the ordinary trustees' receipt clauses
{Coivx V. Foster, 1 J. & II. 30 ; but as to the receipt clause, see
Cot v. Cox, 1 K. & J. 251). This clause would now be supplied
by the Conveyancing Act if a trust or a power of sale were
found in the instrument.
In a case where lands were settled, so as to be subject to the
joint power of appointment of husband and wife among the
children of the marriage for such estates and interests and in
such manner as they should think fit, and in default the estate
was to be held in trust for all the children at twenty- one or
marriage, equally, and the settlement contained a power of, but
no trust for, sale ; it was held that the appointors had power to
convert the real into personal estate on appointment so as bind
the representatives of the appointees ( Webb v. Sadler, 14 Eq.
533 ; 8 Ch. 419).
A power of appointing a mixed fund of real and personal
property to a class is well exercised by an appointment of the
realty to one member of the class and the personalty to another :
it is not necessary that each of the objects should have a part of
each kind of property appointed to him, although the power is
non-exclusive {Morgan v. Surman, 1 Taunt. 289).
A power of appointment among a class is well executed by an
appointment to one object for life, with remainder to the other
objects, or by cross gifts from one to another {AUoicay v. Alloivay,
4 Dru. & War. 387 ; Wihon v. Wilson, 21 B. 25) : subject to
the rules against perpetuity, ante, par. 2, pp. 286 et seq.
A power of appointment among children is well executed by
an appointment to one for life with power to dispose of the
capital by deed or will : for this in effect gives the whole bene-
ficial interest and does not transgress any rule against perpetuity
{Bray v. Brce, 2 CI. & Fin. 453).
And a like appointment to an object of the power for life, with
a power of disposition by will only, is good, if such object was
in esse at the time of the creation of the power {P/ripson v. Turner,
9 Sim. 227). Secus, if he were not then in esse {WoIIaston v.
King, 8 Eq. 165).
EXCESSIVE EXECUTION. 323
An appointment to an object for lier separate use may Lo Separate use.
made under a power to appoint personalty in sucli proportions as
the donee shall direct {Alexander v. Alexander, 2 Ves. sen. 640 ;
DiehhiHon v Morf, 8 lla. 178 ; WiUiH v. Kymer, 7 Ch. D. 181) :
but an appointment to a married woman's husband was bad even
before the Married "Women's Property Act (Sug. Pow. 687) ;
and it fortiori since that Act. As to restraint on anticipation,
see ante, p. 295.
A power given to a mamed woman to appoint among her Power to
children, "with such directions or regulations for maintenance, tenance.
education, and advancement," as she should please, was held im-
properly executed by an appointment to the husband, until the
youngest child attained twenty-one, in or towards the main-
tenance and education of all her children {Lloyd v. Lloyd,
26 B. 96). The ground of the decision was that the appoint-
ment was practically for the benefit of the husband, for ho might
claim the funds, whether there were any children or not {Uam-
mond V. Neanie, 1 Sw, 35 ; and see Cheder v. Chadicivl;, 13 Sim.
102). In Re Main (15 W. P. 216), a wife had power imder her
settlement to appoint income to her husband so long as he con-
tinued a widower with a proviso that he was to employ it for the
maintenance of his children ; and it was held that the husband
was entitled under an appointment made to him, although there
was no child.
A power in marriage articles to husband and wife to alter and Power to
vary the pro\'isions of the articles as they should think fit, previous yary terms of
to the execution of the settlement, did not authorize the inser- ™apiage
articles.
tion in the settlement of a power enabling the husband to
jointm'e a future -wife or charge portions for younger children of
a futm-e marriage {D. of Bedford v. M. of Abereorn, 1 IE. & C.
312).
In Roper-Carzon v. Roper-Curzon (11 Eq. 452), a power in a Power to
marriage settlement to advance to a son of the mamage jiart of
the trust funds, "for placing or establishing him in any business,
profession, or employment, or otherwise for his advancement or
preferment in the world," was held to authorize payment of
part of the trust fund to the trustees of a post-nuptial settlement
y2
324
A CONCISE TREATISE ON POWERS.
Power to
purchase
annuity.
Different spe-
cies of estate.
made by a son in favour of himself and liis wife and the issue of
their marriage, neither the son nor his wife being entitled to any
projierty producing an immediate income, and the son being en-
gaged in study, preparatory to entering the legal profession.
And as to a daughter, see Lloyd v. Cocl-er, 27 B. C-i5.
A power of advancement for setting up the children of the
testator in business will not authorize the advance of a married
daughter's share to pay her husband's debts : but when the
advance was made for the purpose of setting up the daughter in
a farming business, the husband covenanting that the business
should be her separate property, it was held good {Talbot v.
Mar.,hfield, 3 Ch. 622). But in Ro Kershaw (6 Eq. 322), under
special cii'cumstances, an advance under a similar power to the
husband on his personal security for the purpose of sotting him
up in trade was held good. In Loidher v. Bcntlnck (19 Eq. 166),
a power to apply any part not exceeding half of a fund of
which L. was tenant for life in or towards his preferment or
advancement or otherwise for his benefit, was held to authorize
the payment of L's debts, the interest on which absorbed nearly
his whole income, and the principal of which he was unable to
pay ; (and see Ec Ahlruhje, 55 L. T. 554 (C. A.) ).
It has been held that money advanced to an infant under a
power of advancement cannot be recovered back, although it was
advanced for a particular purpose, e.g., the purchase of a com-
mission, and the infant has afterwards sold the commission and
appropriated the money to his own use {La/vrie v. Banlies, 4 K.
& J. 142).
In Mcsseena v. Carr (9 Eq. 260), a power to trustees at their
discretion to purchase an annuity for A. out of a trust fund, was
held to be properly exerciseable by giving A. the whole fund or
any part thereof. And an unlimited power to appoint dividends
has been held to authorize an appointment of the capital {Phillips
V. Bnjdon, 26 B. 77). A power to raise a given sum out of the
rents and profits of an estate means that they are to be raised
out of the estate, and authorizes a sale or mortgage for the
pur[)Ose of raising them {Metcalfe v Hutchinson, 1 Ch. D. 591).
Although it has been decided that at law, where a freehold
EXCESSIVE EXECUTIOX. 325
interest is authorized to be appointed, a different species of estate
cannot be created, yet in equity such execution will be good
(Sug. Pow. 411). A power to appoint among children, in such
manner and proj)ortions as A. pleases, authorizes an appointment
of capital and income and the postponement of jiayment of the Postponement
capital partly until the majority of all the children and partly ° P^y"^^° •
until the death or marriage of one of them ( Wll'son v. Wilaon,
21 B. 25).
26. Where the donee of a general power of appointment over By whom
personalty, whether a feme covert or not, executes the power and are to'b™^'^*^
appoints an executor, the executor is entitled to receive the earned out.
appointed fund {Re Hoy/iiii, G Ch. D. 281), and can give a valid po^wer.^^^*^'^'*
discharge for it {Ilaijes v Oatlcij, 14 Eq. 1). And inasmuch as
the executor may require the fund for the payment of debts,
and is liable for duty {Re ClioJtnondeJcy^ 1 Cr. & M. 149), this is
obviously just, although there are statements to the contrary in
Re Rhilbriek, 34 L. J. Ch. 368 ; 13 W. R. 570.
"Where, however, the power is limited, it appears to be a Under limited
question of construction whether the power authorizes a du'cc- P^^''^^-
tion to transfer the fund to other trustees. An appointment of a
fund standing in the names of trustees to other trustees on trust
for some of the objects may be a good equitable execution so
far as the interests of the appointees are concerned ; but the
machinery adopted may exceed the power. The appointees'
beneficial enjoyment is not affected, but the trustees of the
original settlement will not get a good discharge in such a case
if they transfer the fund to the new trustees. This construction
was put upon the power iu BuhI: v. Ahlion (19 Eq. 16), by
Malins, V. C, where he held an appointment to trustees for
children good in equity, but would not order the fund to be
transferred to such trustees. The trust in that case was for such
one or more of the issue with such provisions for their respective
maintenance, education, and advancement at such time or times,
and in such shares, and charged with such annual sum of money,
and with such limitations over for the benefit of some or one of
them on such conditions, with such restrictions, and in such
manner as the donee should appoint.
326 A CONCISE TREATISE ON POWERS.
Vo)i Brockdorf v. Malcolm (30 Cli. D. 172), is to the same
effect : and althougli tlie judgment of North, J., in Scotney v.
Loiner (29 Ch. D. 535), perhaps exhibits some dissent from
Busk V. Aid am, the words in the case before him, " with such
trusts for the benefit of" the appointees, may have been held
sufficient to authorize the nomination of new trustees. At any
rate, the Court of Appeal in Scofnei/ v. Lomer (31 Ch. D. 380),
by no means dissented from Busk v Aldam : and it is submitted
that that case is sound in principle. A settlor or testator who
vests funds in trustees, and provides machinery for filling up
vacancies in their number, may well be taken to have intended
that the fund shall remain in the custody of the persons to whom
he has entrusted it, until some beneficiary absolutely entitled is
ready to receive it, although he has given power to another to
say who that beneficiary shall be : he may well trust (say) his
daughter to select which of her children shall take the fund, and
yet not desire her to nominate the trustees who are to hold it.
CHAPTER VII.
DEFECTIVE EXECUTION.
327
PAGE
1 . Principle obscure 328
2. When eqiiitij ivill aid 329
3. Nature of defects against which
equity relieves, and instances . 330
4. Non-execution not aided 333
5. In whose favour equity will
interfere 335
Distinction between meritorious
and valuable considerations . . ih.
6. Purchasers 33G
7. Creditors 338
8. Charities 340
9. Persons claiming for meritorious
consideration 341
10. Who are not within such con-
sideration 342
PAGE
11. When the obligation to provide
is equal 342
12. What powers can be aided .... 343
13. Relief against defective execution
of powers of leasing so as to
bind remaindermen , 345
14. How far specific performance of
a contract to lease unwarranted
by the potcer will be decreed. . 348
15. Statutory aid to defective leases 351
16. Observations on statutes 354
17. Itule as to void leases apart from
statutes 356
18. Sale of land apart from timber . 359
19. Sale of land apart from minerals 360
1. Executions of powers whicli are invalid at law by reason
of their failm-e to comply with all the requisites of the power
are aided in equity if there be a good consideration: the
execution is not held actually good either at law or in equity,
but the Court interferes and compels the person entitled in
default of execution to make good the defect (Sug. Pow. 532).
Defective executions of powers and defective suiTenders of
copyholds depend upon the same principles. The Court executes
the intention of the settlor, either against his representatives or
the person taking the estate in defaidt of a valid execution of
the power or surrender of the copyholds, where there is a good
consideration. If there be such a consideration, the party
taking the estate is not permitted to rely upon the defect ; but
the Court will effectuate the intention of the settlor, and,
speaking generally, this equity is enforced, not against the
328 A CONCISE TREATISE ON POWERS.
settlor himself, but iu his favour — that is, in execution of his
intention, and at the expense of a third party {per Lord St.
Leonards, EUi>i v. Nimnw, LI. & Go. 348).
It is therefore, strictly speaking, inaccui'ate to say that a
power is well executed in equity, although not at law; but
equity in some cases supplies the defect, and thus practically
makes the execution good.
Difficult to Sir W. Grant, in Holmes v. Coghill (7 Yes. 506), says that it
show any -g (_|ifgcult to discovcr a sound principle for the authority the
principle tor -^ -^ _ _
the aid af- Court assuiues in aiding a defective execution in certam cases.
forded by the ,. . „,, , • ,^ • i ^
Court. "If the intention of the party possessing the power is to be
regarded, and not the interest of the party to be affected by the
execution, that intention ought to be executed wherever it is
manifested : for the ow^ner of the estate has nothing to do with
the purpose. To him it is indifferent whether it is to be exer-
cised for a creditor or a volunteer. But if the interest of the
party to be affected by the execution is to be regarded, why in
any case exercise the power, except in the form and manner
prescribed ? He is an absolute stranger to the equity between
the possessor of the power and the party in whose favour it is
intended to be executed. As against the debtor it is right that
he should pay. But what equity is there for the creditor to
have the money raised out of the estate of a third person in a
case in w^hich it was never agreed that it should be raised ? The
owner is not heard to say that it will be a grievous burden and
of no merit or utility. He is told the case provided for exists :
it is formally right : he has nothing to do with the purpose.
But upon a defect which the Court is called upon to supply, he
is not permitted to retort this argument, and to say, it is not
formally right : the case provided for does not exist : and he
has nothing to do with the purpose. In the sort of equity upon
this subject there is some want of equality. But the rule is
perfectly settled ; and although perhaps with some violation of
principle, with no practical inconvenience." It makes no
difference who the persons entitled in default of appointment
may be, whether children or strangers ; nor whether the power
is general or special. The same principle applies to all powers.
DEFECTIVE EXECUTION. 329
2. The rule is thus stated by Lord Alvanley : —
Wlicnovcr a man having power over an estate, wiien equity
whctlier OM'ncrship or not, in discharge of moral
or natural oljligations, shows an intention to
execute such power, the Court will operate upon
the conscience of the heir (or of the persons
entitled in default), to make him perfect this
intention {Chapman v. Gibson, 3 Bro. C. C. 229;
Lowson V. Lotvson, Ibul. ^l\l ; Cotter v. Layer,
2 P. W. 623).
To the granting of the relief it is only necessary that the
person executing the power defectively should have ability to
raise the estate if the power had been properly pm\sued, and
that the appointee should be one of the favoured classes
(Sug. Pow. 53G).
If the intention to pass the property subject to the power be In what
clearly estabhshed, even although the intention to dispose of it ^^^^^'
under or by virtue of the power is not shown, still equity will
give effect to the disposition, and hold that the property passes
under the power {Cancr v. liicharck, 27 B. 488, 495).
Where the intention to pass the property, the persons to be
benefited, and the amount of benefit are sufficiently indicated,
and there is good consideration, there is enough for the Court to
act upon, and it will rectify any mere informality in the mode
of carrying out that intention : but it will not do so if any of
these be wanting {Gaiih v. loicnsotd, 7 Eq. 221 ; Keiuiard v.
Kennard, 8 Ch. 227).
It makes no difference that the donee of the power defectively Althoufrli the
executed is a married woman {DoiccUx. Den; 1 Y. & C. Ch. 345). '^^^\^!^^ "
" There is no doubt that tlie Court will aid tlie defective exc- ""'«maii-
cution of a power in favour of a creditor or purchaser, though
the donee of the power be a married woman. But the Court in
such cases must be satisfied that the formalities which have not
been observed are no more than matters of form, and that the
donee of the power has not by theii* non-observance been de-
330 A CONCISE TREATISE ON POWERS.
prived of any of the protection -which a due exercise of the
power would have afforded her : and the Court looks with es-
pecial jealousy on a transaction in which the wife may have
acted under the influence of her husband" {Thachcell v.
Gardiner, 5 De G. & Sm. 58, 65 ; EojjMns v. Myall, 2 R. &
M. 86). In these cases no aid was granted against the married
woman, although in ThachiceJl v. Gardiner the life interest was
held bound by a deposit and memorandum.
defect reUeved ^' Equity relievGS only against defects wliicli are not
against. Qf ^j^g essencG of the power.
Courts of equity never uphold acts which will defeat what the
person creating the power has declared, by expression or neces-
sary implication, to be a material part of his intention {Coopers.
Martin, 3 Ch. 58). It is still competent to a settlor to make
the nature and character of the instrument, by which the power
he creates is to be executed, of the essence of the power, without
observing which no execution shall be valid (ibid.).
Equity will supply defects which consist in the want of some
circumstance required in the manner of execution, as the want
of a seal or a sufficient number of witnesses (see now 22 & 23
Yict. c. 35) ; or where the exercise has been by codicil before the
Wills Act, attested by only one witness {Morse v. Martin, 34 B.
500). (As to wills since the Act, see 1 Yict. c. 26, ss. 9, 10.)
Or by will instead of by deed {Sneed v. Sneed, Ambl. 64). But
it will not aid defects which consist in the omission or disregard
of an essential part of the power.
In Coojjer v. Martin (3 Ch. 47), the proceeds of estates de-
vised by A. in trust for sale were to be held on such trusts as
A.'s wife should by deed, sealed and delivered before their
youngest child attained twenty- five, appoint, and in default,
over. The donee appointed to all her children equally before
the period expired, reserving a power of revocation : she after-
wards by will, executed before but not coming into operation
until after tlie youngest child attained twenty-five, appointed
to the eldest son. The execution was held to be invaHd, and
the defect to be of such a nature as the Court would not aid.
DEFECTIVE EXECUTION. 331
So, too, a covenant or agreement for renewal, or to grant a Tower of leas-
lease in fHtiiro, by the donee of a power of leasing in possession perly executed
will not be aided after the donee's death, so as to bind the re- again'st're-
maindermen. In Haniett v. YiehUng (2 S. & L. 549, 559), the mainderman.
donee of a power of leasing for twenty-one years in possession
at a rack rent made a lease, and tliereby covenanted to renew
for twenty- one years when applied to : this lease was suiTcndered,
and an agreement endorsed thereon afterwards by the lessor to
grant a fresh lease at any time the lessee should demand the
same at a smaller rent. This was held bad, as being a fraud on
the power, and not a mere defective execution which the Court
would aid : the lessee offered to take a lease for twenty-one
years if the lessor should so long live : but the Court refused
that also. But it is doubtful whether the contract should not
have been enforced so far as the lessor could legally execute the
power {Dyas v. Cruise, 2 J. & L. 460 ; Gas Light Co. v. Toicse, 35
Ch. D. 519). In Ra Ik ft to Martin. (24 Ch. D. 624), trustees
with power to grant building leases granted a lease w'ithout any
covenant to build : this was held to be an essential, not merely
a formal, defect.
An order of the Court in a suit properly constituted brings Effect of or-
all the parties before it ; and accordingly in Keunan v. Murphy
(6 L. E. Ir. 108 ; 8 ib. 285), where a lease was authorized by
the Court, but the tenant for life did not execute it, it was held
that the remainderman was bound by the order, and that the
Statute of Frauds had no application {Attorney-General y. Day,
1 Ves. sen. 218).
In an unreported case Ex parte East London Railway Com-
pany (6 Dec, 1873, before James and Mellish, L. JJ.), a
tenant for life, with the statutory power of leasing under 19 &
20 Vict. c. 120 (/. c, for twenty-one years in possession), agreed
in writing to grant a lease for seven years, renewable at the ex-
piration thereof for another seven. This agreement was carried
into effect by a lease for seven years which contained no cove-
nant for renewal, and during the continuance of this term the
lessor died. The lessee, on his land being taken by the railway
company under the Lands Clauses Act, claimed compensation
332 A CONCISE TREATISE ON TOWERS.
in respect of a fourteen years term. V.-C. Malins considered
the claim to be made out. The Lords Justices reversed his de-
cision, holding that the lease was the expression of the intention
of tlie parties, and that the agreement, if it were still existing,
was not in accordance with the terms of the power, and could
not be aided, as the defect was essential.
In the last case the term in possession and the term in reversion
woidd have been within the power ; but the Court thought it
bad notwithstanding ; and to the same effect was Doc v. L(((h/
Cavan (5 T. II. 567), where a lease had been granted under a
leasing power, and a further term was granted under the same
power to the same lessee : the two terms together did not exceed
the number of years for which leases were authorized to be made.
The case was decided on another ground : but the Judges
thought this objection fatal (Sug. Pow. 763).
Unusual In Mcdicin v. SancUicDn (3 Sw. (i^^)), the Court refused to
interfere to aid a lease in which unusual covenants were intro-
duced, which purported to have been granted in execution of a
power to grant leases containing the usual covenants.
In LaicreuHon v. Butler (1 S. & L. 13), a tenant for life had
power to lease with consent : he agreed to grant a lease, without
having obtained the consent. The Court refused to aid.
Power to be A power to be executed by will cannot be executed by deed,
wm carinof be ^'^^ equity will not relieve, if the attempt is made. The creator
executed by ^f ^j^g power did uot intend that it should be so executed : he
intended it to be by will, or not at all ; and it is impossible to
hold that the execution of an instrument or deed, which, if it
availed to any purpose, must avail to the destruction of that
power the testator meant to remain capable of execution to the
moment of the donee's death, can be considered in equity an
attempt in or towards the execution of the power {Reid v. Sher-
fjold, 10 Ves. 370, 380 ; and see Re Wahh, 1 L. R. Ir. 320).
And of course a court of equity will not aid a defective execution
of a power which, if effective, would be a fraud on tlie power
Equity wiU {Re Kirican, 25 Ch. D. 373, 382). Nor will equity interfere to
breach of set up an execution which would be a breach of trust. In
trust. Mortlock v. Buller (10 Ves. 292, 317), trustees with a power of
DEFECTIVE EXECUTION. ^^^
sale entered into a contract for sale without the necessary
authority ; specific performance was refused, and the Court
declined to aid tlie contract as a defective execution of the power.
It might happen that after the trustees in such a case had entered
into a duo contract, binding all parties, circumstances might
arise that might prevent them from carrjdng it into execution.
In such a case, although the power might be gone, the contract
would be made good in equity by the persons who had got an
interest in the estate by the effect of that interest (p. 315) ; that
is, the Coiu't would aid the execution, and compel the persons
legally seised to complete the legal title ; (and see Ord v. JS^oel,
5 Madd. 438) .
On the same principle, where trustees had a power to grant
new leases on the expu'ation or surrender of existing leases,
" determinable on the decease of three lives to be named in
every such new lease, but not for more lives at one and the
same time" ; and they demised to A. B, for ninety-nine years if
three persons should so long live, and thereby covenanted to put
in another life on certain conditions if any of the three should
die : it was held to be a breach of trust, and the Court would
not interfere to aid its performance {Bellringer v. Blagrave, 1
De G. & Sm. G3).
4. The Court will not aid the uou-execution of a Non-execu-
1 t i • 1 1 tion not aided
power: unless such non-execution has been pro-
cured by fraud (semble).
It is against the natm-e of a power, which is left to the free
will and election of the party whether to execute it or not, to
aid its non-execution {Tol/d v. ToHof, 2 P. W. 490 ; Roliuc-s v.
CogJiill, 12 Yes. 20G). Non-execution of a power is where
nothing is done : defective execution is where there has been an
intention to execute sufficiently declared ; but the act declaring
the intention is not an execution in the form j)rescribed {S/ian)wn
V. Bradstrect, 1 Sch. & L. 52).
The Court, therefore, will not uphold as a valid execution an
imperfect contract for sale even in favour of a purchaser for
'334 A CONCISE TREATISE ON POWERS.
valuable consideration — e.g.^ a mere parol contract for the sale
of lands, the only evidence of wliicli is to be deduced from the
conduct of the pai-ties ; except on the ground that it would be a
fraud on the part of the j)erson who might insist on the Statute
of Frauds, to insist upon it ; and this would not apply to
remaindermen {Morgan v. Milman, 3 D. M. & Gr. 24 ; Blore v.
Suttou, 3 Mer. 237) ; unless such remainderman has lain by and
allowed money to be expended on the faith of the validity of
the execution {Stiles v. Coirpcr, 3 Atk. 692).
Although due The Court will not supply execution on the ground that the
to accident. ^\'' _ ° .
donee has been prevented by accident from executing the power.
In Buckell v. Blenkhorn (5 Ha. 131, 142), Y.-C. Wigram
says : " If the argument urged before me in this case be once
admitted, it seems impossible to stop short of the conclusion
that the donee of a power should in all cases be liberated from
its restraint, whenever he bond fide intended to execute the
power, but could not at a given moment ascertain what those
restraints were, and death or accident prevented his compliance."
And the Coui-t will not hold an execution to be intended
because the donee was under a mistaken apprehension that by
leaving the power unexecuted, certain persons whom he desired
to benefit would take ; the expressed intention being not to
make any appointment {Langslow v. Langsloiv, 21 B. 553).
But execution But if a person be fraudulently prevented from doing an act,
plied if it was the Court will consider it as if that act had been done {qn.). Lord
l^llTlsc^>Me). Eldon (1 J. & W. 96) states that in LuttrcJU. Olmiiis (11 Ves.
638), Lord Waltham, a tenant in tail, having been fraudulently
prevented from suffering a recovery, the estate was treated as if
the recovery had been suffered, though in favour of a volunteer,
and against one not a party to the fraud. Yet in the case
before him [Middleton v. Middleton, 1 J. & W. 94) he refused to
grant an injunction to restrain a husband from preventing his
wife's solicitor from having access to her with a deed of appoint-
ment : and he said, " Suppose the lady should die without
executing the deed, would it be possible for the Comi to con-
sider it done, when it does not appear that she gave instructions
for it?" (but she did give such instructions, see p. 98).
DEFECTIVE EXECUTION. 3:Jo
" Wheresoever a man doth endeavour to inform himself of the
circumstances of his o^\^l power and condition in order to revoke
such a settlement, whore lie has a power to do so, and is hindered
from coming at the knowledge of them, and especially hy that
person whose interest it is to prevent a revocation, he ought to
bo relieved in such a case, for it is against good conscience that
any man should profit by such subtile, sinister practices"
{Bath and Munntaguc'H case, 3 Ch. Ca. at p. 84 ; and see ibid.
108, 122).
In Vane v. Fletcher (1 V. W. 352, 355), the Com-t would not
supply a surrender of copyliolds against the heir, although it
was m-ged that the testator had done all in his power to
surrender, and had made a letter of attorney to J. S. for that
purpose, but the steward refused to accept it. The Court
thought tliis a lucky accident in favom* of the heir, which
equity ought not to deprive him of. " But if the heir-at-law
had himself done anything to have prevented the acceptance of
the surrender, that had been material."
5. Equity aids the defective execution of a power in Persons in
favour of (a) purchasers for value ; (b) creditors ; ^uity ^^x-
(c) charities; (d) persons for whom the api)oint()r
is under a natural or moral obligation to provide,
unless lie is under an equal obligation to provide
for persons entitled in default of a2)pointment, and
they are unjDrovided for.
The character of purchaser, wife, creditor, child, must be
borne by the party claiming relief in relation to the donee of
the power, and not to the person creating the power (Sug. Tow.
537 ; but see contra, Wilhci v. Holmes, 9 Mod. 485). And there
is a distinction between persons claiming for meritorious and for
valuable consideration; and good consideration is {xemble) in-
cluded in " valuable." The supplying the execution of a power
which is defective, and the supplying a surrender of copyholds,
go hand in hand ; wherever the Court will supply the surrender,
33G
A CONCISE TREATISE ON POWERS.
Otherwise, if
it be a valu-
able con-
sideration.
it will supply tlie defective execution {Chapman v. Gibson^ 3
Bro. C. C. 229, 231 ; Sayer v. Sayci; 7 Ha. 387) ; and it has
been held that the Com-t would not supply a surrender, where
the settlement contained a covenant to surrender copyholds for
the benefit of the settlor's daughters {Jefferys v. Jeferys, Cr. &
Ph. 138).
It is otherwise if the appointees or covenantees be purchasers
for valuable consideration. When a person enters into a contract
for the execution of a power for valuable consideration, but does
not carry it into effect and exercise the power, the Court will
supply the defect.
In Be Dyhes' Estate (7 Eq. 337), lands stood limited to such
uses as D. should by deed appoint, and subject thereto to the
use of D. and the heirs of his body, with remainders over. D.
was absolutely entitled to other lands. A railway company
required part of the settled and part of the other estates. By
agreement not under seal, after reciting that D. was owner of
lands, part of which (specified in the schedule thereto) was
required by the company, and the purchase-money and compen-
sation to be paid to D. had not been ascertained, and that it had
been agreed to refer these matters to arbitration, the parties
thereto bound themselves to abide by such arbitration. The
schedule comprised all the land required by the company without
distinction of title, and a single sum was awarded as the pur-
chase-money. Before the execution of any conveyance D. died.
The Master of the EoUs held that the contract operated as an
execution of the power in equity.
But equity will not aid, if there be no valid and binding
contract {Morgan v. Milman, 3 D. M. & Gr. 24).
If the donee of a testamentary power of appointment among
children covenant on the marriage of one of them to execute his
power in his favour, and die without doing so, the covenant
will operate as a defective execution, or will at any rate be
satisfied by leaving the money to devolve as unappointed
{Thacl-er v. Key, 8 Eq. 408) ; and see post, p. 408.
Purchasers for 6. {a) The Coui't interferes in favour of purchasers, because it
sideration. is unjust not to givc them the benefit of their contracts. In order
Covenant to
appoint by
will.
di:ki:c'ii\'i-: exkcuiiux. 337
to constitute a purcliaser in whose favour a defective execution
of a power can Le aided, there must be consideration, and an in-
tention to purchase either proved or presumed {Scrf/iaon v. Sealey,
2 Atk. 412). In Iluyhes v. Wells (9 Ila. 740, 760), it was held
that tlie expenditure hy a husband of his wife's money in the
maintenance of their joint establishment did not furnish any con-
sideration to the wife, and assuming that a transfer by a husband
of his wife's legacy into her name and the carrying the income
of it to her account might amount to consideration, it certainly
did not prove any intention to purchase.
It makes no difference Avhether the purchasers be purchasers
of the entirety or of part only. The defective execution will be
aided pro faiifo, if necessary — c.[/., tlie want of a surrender of
copyholds was supplied in favour of a mortgagee in Joinings v. Mortgagee.
Moore (2 Vern. 600) ; and mDoicell\. Deic (1 Y. & C. Ch. 345) it
was held that an agreement to grant a lease entered into a short Les.see.
time before the expiration of the existing lease by the donee of
a power of leasing in possession only might under certain cir-
cumstances be aided in equity.
In Long v. Ednhiu (Sug. Tow. 000), C. J. Abbott says: "A
lessee is in law and reason considered as a purcliaser, even if he
takes at the best rent 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
expenditui'e by the enjoyment of his term." And a person to
whom the donee of a power of leasing had agreed to grant a lease,
might be aided, although the term had not commenced (if that
were not contrary to the power), and although he had therefore
been put to no expense, for his equity depends not on part per-
formance, but on his contract.
CamphcU v. Leach (Ambl. 740) was the stronger case of a
lessee who had been let into possession under a defectively
executed lease, and had on the faith of such lease expended
large simis. But the mere relation of landlord and tenant
makes the tenant a purchaser for valuable consideration to the
extent of his lease, and he has all the advantages of such ]'nr-
F. /
338 A CONCISE TREATISE ON TOWERS.
chaser ; and every circumstance which would avail a purchaser
in fee simple as a purchaser for valuable consideration would
equally avail a lessee for years to the extent of his term {per
Y.-C. Malins, Re King, 16 Eq. 525) . This seems, however, to have
been doubted in Ireland {Donnelly. Chureh, 4 Ir. Eq. B. 630).
Creditors. 7. {h) Where a testator shows an intention to provide for the
payment of his debts, the Coui't will supply a defective execu-
tion {Chajnm/n v. Gib.'<on, 3 Bro. C. C. 229).
" This is not to be confoimded with the case of the heirs
being disinherited by a will not duly executed : there is no will
at all : the Com-t cannot see that there is such an instrument ;
but wlierever tliere is such a power it has been executed " {ibid).
The testator in tliat case had devised all his estate, having only
copyholds not surrendered to the use of his will.
A limited power of appointment among a class cannot of
course form part of the appointor's assets, whether he execute
Property his power or not. But both real and personal estate over which
■when actually i i p • ^ ^ i i i>
appoiuted ^ ina.n nas a general power oi appointment becomes assets lor
for pa^ment*'^ the payment of his debts, if the power has been validly exer-
of debts. cised in favour of volunteers {Fleming v. Buchanan, 3 D. M. & Gr.
976; Jenncy v. Andirics, 6 Madd. 264; WiUiams v. Lomas,
16 B. 1). The donee of the j)ower having by his appointment
displaced the title of those taking estates subject to the power,
and so rendered the property his own absolutely, the Court
treats it in like manner, follows this out to all its legitimate
consequences, and treats his rights acquired under a general
power as equivalent to absolute ownership {i^er Y.-C. Wood,
2 K. & J. 681). As to this, and as to the question of the
liability of estates appointed by married women to the payment
of their general engagements, see ante, p. 256 d seq.
But the appointed property is the last to be applied in ad-
ministering the appointor's estate, and is only used so far as is
necessary to supply the deficiencies left by the other assets {Silk
V. Prime, 2 W. & T. L. C). And, as before stated, unless
the power is executed, the property subject to it cannot be made
assets : equity cannot supply non-execution {Holmes v. Coghill,
7 Yes. 499).
DEFECTIVE EXECUTION. 330
And the equity of a purchaser from a party taking under a Purchaser has
voluntary deed of appointment is preferred to that of general thancr^tor.
creditors having no specific charge {George v. Milbanhe, 9 Ves.
190). The purchaser who pays a consideration to the voluntary
appointee may constructively be held to ho in the same situation
as if he had in the first instance paid it to him by whom the
power was executed {Dauheny v. Cockhuni, 1 Mer. G20, 638).
But this does not apply to purchasers of shares appointed by Exception in
will : they are in the same position as purchasers for value of a mentar\- ap-
legacy (as to which, see Re Kmipmau, 18 Ch. D. 300 ; Doering poi^tments.
V. Doering, 42 Ch. D. 203), and are subject to the same equities
in respect thereof as the vendor : and therefore must refund it
if necessary for the jiaymeut of debts [Jennings v. Bond, 2 J. & L.
720 ; see, too, Morris v. Livie, 1 Y. & C. C. C. 380 ; and as to
legal devises, Egbert v. Butter, 21 Beav. 560 ; and Fox v.
Bucl-icu, 3 Ch. D. oil).
Nor can creditors claim to have the defective execution of a Creditors
power supplied in their f avoiu', when the appointee is a volunteer, appoiutments
and therefore would not be himself aided. This does not appear ^jed ""*^^"
to have been expressly decided, and in Holmes v. CogltiU {12 Yes.
206), Lord Eldon seems to think it might be done. But Lord
St. Leonards (Pow. 540-1) considers that the limits of the law
on this head are contained in the decided cases. "Where the
fund is effectually given to a stranger, equity considers him a
trustee of it for the creditors, and the remainderman has no
ground of complaint, because the power is legally executed.
Where a defect is supplied for the appointee, the relief has at
least the merit of effectuating the intention of the person executing
the power, although at the expense of the remainderman ; but if
tliis relief should be afforded in favour of creditors where the
fund is not given to them, the same hardship would be imposed
on the remainderman, and at the same time the intention of the
donee of the power would be defeated. Upon this head of equity
it is clearly established that the interests of the remainderman
shall only be sacrificed to the intention of the donee of the power
expressed in favour of a person from whom a valuable considera-
tion moved, or in whose person a good consideration existed.
340
A CONCISE TREATISE ON POWERS.
Eights of
purchasers
■without
notice.
Charities.
The fii'st point to be established is the intention of the person
executing the power, which in tliis case is not merely wanting,
but his intention expressly was that his creditors should not have
the fund. The common equity in favour of creditors, w^here the
fund is given to others, does not arise imtil the power is legally
executed."
The usual rules as to purchasers for valuable consideration
without notice apply to persons taking estates by means of the
execution of powers as well as by ordinary conveyances. If
therefore a power be executed in such a manner as not to be
valid at law in favour of A., and be afterwards validly executed
in favour of B., B.'s title will prevail if he had no notice of A.'s
claim, for he will have got the legal estate and an equal equity.
But this does not apply to persons who take subject to and in
default of appointment : in most cases they are purchasers, yet
equity sets up defective executions to their detriment, because
they take subject to the power.
8. (f) A power well exercised in all other respects will, in
favour of charities, be deemed to be an effective execution of the
power, although the form in which the power has been exercised
has not conformed to the requisitions imposed by the instru-
ment creating or giving the power {Lnics v. l^ayer, 3 Mac. & Gr.
620).
In Attoniey-Gencmly. Burdet (2 Yern. 755), it was held that
an appointment by a tenant in tail to a charity should bind
the remainderman, and it was said that the Statute of Charit-
able Uses (43 Eliz. c. 4) supplies all defects where the donor is
of capacity to dispose, and hath such an estate as is in any way
disposable by him, whether by fine or common recovery.
Mr. Tudor (Charitable Trusts, 2nd ed. 37) says that a most
liberal construction was put on this statute by the Courts, upon
the ground that the legislature was supposed to have intended
thereby to cure all defects and omissions in point of form in
instruments by which property was given to charitable purposes.
The Statute of Mortmain (9 Geo. 2, c. 36) did not repeal this
Act ; but appointments to charitable uses were required to
conform to the directions contained in it (Sug. Pow. 208). But
DEFECTIVE EXECUTION. 341
the Act is now repealed by the !^^ortmain Act, 1888, 51 & 52
Vict. e. 42 s. i:}.
9. {(/) Equity will interpose in favour of persons for whom Persons
there is a natural obligation to make provision {C/uijwuni v. meritorious
Gih.sO)!, 3 Bro. C. C. 220). consideration.
In aiding the defective execution of a l)0^^•er, either for a wife
or child, its being intended for a provision, whether voluntary
or not, will entitle the Court to carry it into execution {Ilcrcey
V. Henri/, 1 Atk. 5G7).
Tlie Court Avill not inquire into the qKdntum of the provision : Quantum of
it is sutHcient that the testator is acting in discharge of moral P'"°''^^^°°-
or natural obligations, and it is very difficult for the Court to
enter into such an inquiry : the father must be the best judge
(3 Bro. C. C. 230). It has been said that a -^dfe or child apply-
ing for aid in the defective execution of a power must be wholly
unprovided for. But this is not the right rule, for by the
invariable and proper rule the Court considers the husband or
father the proper judge of what is a reasonable provision {2^€r
Lord Hardwicke in Herir// v. Jlcrir//, 1 Atk. 568).
Thus, a surrender of copyholds has been supplied in favour
of a wife, although she had other provision {SmifJi v. Baker,
1 Atk. 385) ; and although her interest was only limited and
the siurender could not be supplied in favour of those in
remainder {Marston v. Goiraii, 3 Bro. C. C. 170), and a defec-
tive execution has been aided in her favour {ToUef v. Toilet, 2
P. W. 489).
A defective execution has been aided in favour of a child,
although the effect has been to put a younger child in a better
condition than an elder (3 Bro. C. C. 230), and also in favour
of a sister so as to take away the property from a brother, if he
be otherwise provided for {Lucena v. Lucena, 5 B. 249 ; Hume
V. Rnmlell, 6 Madd. 331 ; Bniee v. Bruce, 11 Eq. 371).
In Morse v. Jfarfin (34 B. 500), the power w-as to appoint
3,000/. among children by deed or wall duly executed, and
attested by two credible witnesses ; the donee, by his will before
the Wills Act, appointed to all his children equally : next day,
by codicil attested by one witness only, lie revoked tlie appoint-
342
A CONCISE TREATISE ON POWERS.
Who are not
■within the
consideration,
When the
obligation to
provide is
equal.
ment, and appointed 1,000/. on certain trusts for his daughter's
benefit, and the remaining 2,000/. to his three sons. The Court
supplied this defect in the attestation, to the prejudice of the
three brothers, since they were also provided for.
10. But Equity extends its aid only in cases where there is
some natm\al or moral obligation on the part of the donee of the
power to provide for the persons in whose favour the defective
execution has been made.
No aid therefore will be afforded to a husband {Moodie v.
Beid, 1 Madd. 516 ; 9 Ha. 7G0) ; a grandchild {Kettle v. Toicm-
cnd, 1 Salk. 187, in H. of L. ; Fern/ v. Whitehead, 6 Yes.
544) ; a natural child or cousin {Blahe v. Blahe, Beat. 575 ;
Bramhall v. Hall, 2 Ed. 220 ; Tudor v. Anson, 2 Yes. sen. 582) ;
a brother or sister {Goodic//n v. Goodicyn, 1 Yes. sen. 228) ; a
nephew or niece {Marston v. Gownn, 3 Bro. 0. C. 170) ; a
volunteer, even although such volunteer be the creator of the
power (see note to Watts v. Bullas, 1 P. "W. 60). In Sergison
V. Sealey (2 Atk. 414), a woman had a general power of ap-
pointment by deed or writing, attested by three witnesses, over
a sum of money. By her marriage settlement she covenanted
that 2,000/. thereof should be held for the benefit of her
husband, and 2,000/. for her own separate use, but the settle-
ment was attested by two witnesses only. The Court aided the
execution so far as the husband was concerned, but refused to
aid it as to her own 2,000/., for that was based on no considera-
tion, and was merely voluntary.
11. And if the donee of the power be under an equal obliga-
tion to provide for the persons who would take in default of
appointment (or for the heir in case of copyholds) and for the
objects of the defective appointment, equity will not interfere,
unless the heir or persons taking in default are otherwise pro-
vided for.
" The principle must be this, that the testator being under an
obligation to do an act, we will compel the heir to perfect it ;
but we will not compel him to fulfil an obligation at the expense
of another ; and if the testator has totally forgot to make any
provision for his eldest son, this shall be an answer to the claim
DEFKCTIVE EXECUTION. 343
of the wife or other cliiklren " {Chapman v. Gibson, 3 Bro. C. C.
230).
This Court will not supply a surrender against the hoir un-
provided for; but it considers the parent the best judge of the
provision of that lieir, and will not examine the sufficiency of
the provision, unless perhaps in a ease in which it may be
challenged as illusory {Braddirk v. MaKock, 6 Madd. 361). But
the heir must of course be heir in blood, and not Invre-s faduH
[Sill if h V. Balxcr, 1 Atk. 385) ; and (■scinb/r) not merely heu- in
blood, but a child ; for there is no obligation to provide for any
heirs other than children ; and as a defective execution will not
be aided in favour of a grandchild (for instance) , it would seem
to follow that his want of provision should be no bar to an
ai^plication to the Coiu't to aid a defective execution against
him ; although in Eodgers v. Marshall (17 Ves. 294), the Master
of the Rolls seems to have thought othermse.
The Court -svill not supply a defect in favour of a daughter
to the prejudice of other persons standing in the same relation-
ship, unless those others are otherwise provided for {Morse v.
Martin, 34 B. 500 ; Lucena v. Lucena, 5 B. 249 ; Hume v.
RundcII, 6 Madd. 331 ; Rr Wahh, 1 L. E. Ir. 320).
12. Powers of all sorts, with the one exception next mentioned, ^Vliat powers
can be aided ; it is only requisite that there should be a sufficient
consideration ; and, if the defect consist in the execution being
merely a contract to execute, the contract must be a binding
one. Thus, in Wilkie v. Holmes (1 >S. & L. 60, n.), a power of
charging was aided; (and see Wade v. Paget, 1 Bro. C. C. 368).
It seems, however, that enabling powers created by statute What cannot,
cannot be aided. Where an enabling or restraining statute
creates or puts a limit upon a power, or, with a view to per-
petuate an estate in a particular descent, from public policy
relaxes the law of perpetuity, and gives powers to persons for
ever in succession, such cases do not fall within the jurisdiction
of the Court, but wholly depend on the law which created them
(Sug. Pow. 564).
Lord Mansfield's observations in Peachy v. Duke of Somerset
(1 Str. 447) (a case of relieving against forfeiture), have some
U A CONCISE TREATISE ON TOWERS.
application to this question. " Cases of agreement and condi-
tions of tlie party, and of the law, are certainly to be dis-
tinguished. You can never say that the law has determined
hai'dly; but you may say that the party has made a hard
bargain " ; (see, too, Keating v. Sparroir, 1 B. & B. 367 ; Ee
Brain, IS Eq. 389 ; Atf.-Gcn. of Victoria v. EtterRhanl; L. E. 6
P. C. 354; Griffiths v. Vere, 9 Yes. at p. 134).
If the legislature has authorized certain acts to be done in a
particular way, it is difficult to see how the Court can give
validity to any such act if done otherwise than in accordance
with the statutory requirements ; to give relief in such a case
would be to legislate afresh. It may be said that, in the case
of ordinary powers, the Court by the relief it grants adds to or
takes away fi'om the words of the creator of the power ; but
this is in order to effectuate the paramount intention, which in
the case supposed is not fully and explicitly expressed in
consequence of the want of skill or foresight of the party. The
Court in effect says that the creator of the power cannot have
intended a seal or the like to be essential to the due exercise of
the power ; for, if he added words of negation, providing that
no instrument or execution should be valid that was not under
seal, no relief could be granted {ante, ji- 330). But it is of
course impossible to apply this to the Legislature. If an Act
of Parliament speaks of a lease, it means a lease and not an
agreement for a lease ; and it is not for the Court to supplement
the Act, or to say that the words used must have been intended
to include cases not within their natural signification, or that
Parliament is inopa eons Hit.
So, too. Lord Mansfield says (Cowp. 267 ; 2 Burr. 1146), that
powers to a tenant in tail to make leases under the statute of 32
H. 8, c. 28, if not executed in the requisite form, no consideration
ever so meritorious wiU avail. So with respect to powers under
the Civil List Act, powers under particular family entails, as in
the case of the Duke of Bolton, &c., equity can no more relieve
from defects in them than it can from defects in a common
recovery; but see Luttrellv. Olmius (mentioned 11 Yes. 638, by
Lord Eldon), where a recovery was supplied in favour of a
DKFKCTIVE EXKCUTION. 'HO
volunteer, the tenant in tcail liaving been fraudulently prevented
from suffering it. If equity has jurisdiction to >^i(j>ph/ a recovery,
it would seem that it could also aid a defect in suffering one ;
there does not appear, however, to be any case reported in which
it has been done.
It is to be observed, too, that in 12 & \'\ Vict. c. 26 {pout,
p. 351), leases granted defectively in execution of powers
created by Act of Parliament are expressly enumerated ; and
it is submitted that this statute applies to leases granted under
the Leases and Sales of Settled Estates Acts, or the Settled
Land Acts. The fact that the powers of leasing given by these
Acts are subsequent in date to the enabling Act, 12 & 13 Vict.
c. 26, can make no difference. For uses created by the testa-
mentary capacity given by the Statute of Wills (32 H. 8) are
within the statute of 27 H. 8. " And it is frequent in our
books that an Act made of late time shall be taken within the
equity of an Act made long time before" {2)er Lord Coke,
Vernon's case, 4 Eep. 1, at p. 4 a. ; and see Be Pern'n, 2 Dru. &
War. 147).
13. It was at one time doubted whether equity would aid the Defective
• 1 execution of
defective execution of leases at all so as to bmd the remamderman ; powers of
or even so as to enable the lessee to obtain specific performance leasing aided,
from the lessor of the lease agreed to be granted so far as such
lease was infra rires. It appears now to be well settled (apart
from the statutory aid hereafter mentioned) that if there be no
fraud upon the remainderman, equity will regard the lessee as a
purchaser pro tanto, and will relieve against any mere formal
defect in the execution of a power of leasing as of any other
power. '* There are no doubt many cases in which Coui-ts of
Equity have compelled remaindermen to carry into effect con-
tracts into which tenants for life with a power have entered ;
but those cases have, I apprehend, proceeded upon this princiiile,
that tlie contract was to be considered as the defective execution
of the power, which, therefore, a Coiu't of Equity was justi-
fied in making good against the remainderman. But if this
be the ground of those decisions, the first question to be con-
sidered is, could the tenant for life himself have done what tlie
'316 A CONCISE TREATISE ON POWERS.
remainderman is called upon to perfect?" {})(')' Lord Cottenham,
Clark V. Smith, 9 CI. & F. 141).
In Canij)h'/l Y. Leach (AmLl. 740), there were nine objections
taken to the lease ; the fourth and fifth were, " that the lease
exceeded the power in the term granted being for twentj-six
years, and the power only enabling a lease for twenty-one."
" That it was not a lease in possession, but in reversion or
fufui-o." L. C. J. De Grrey said that at law the lease could not
be supported or apportioned ; but how was it in equity ? The
power was " for the benefit of tenant for life and the remainder-
man. If executing this power is for the benefit of the remain-
derman, it should receive a liberal construction ; but if tenant
for life invades the interest of the remainderman, in order to
benefit his own only, it should have another construction." In
that case it was not proved that an old lease had been sur-
rendered; if this had not been done, the lease would have
contravened the power in being in reversion ; but as it had been
abandoned, it was taken as if it had been surrendered ; and the
lease was supported for twenty-one years, the excess being
rejected.
In Shannon v. Bradstreet (1 Scho. & Lef. 52), an agreement
by tenant for life, with power of leasing, to grant a lease in
accordance with the terms of the power, was enforced against
the remainderman as an equitable execution of the power. Lord
Redesdale points out (p. 61) that powers of leasing ought not to
receive a less liberal construction as against the remainderman
than powers of jointuring and the like, which are a mere biu'den
upon him. In the case of powers to make leases at the best
rent that can be obtained, it is evident that the author of the
power looks to the benefit of the estate, and that the power is
given for the benefit both of the tenant for life and of all persons
claiming after him ; for where the tenant for life can give no
permanent interest, and his tenant is liable every day to be
turned out of possession by the accident of his death, it is hard
to procure substantial tenants ; and therefore it is beneficial to
all parties that the tenant for life should have power to grant
such leases.
DEFECTIVE EXECUTION. 'H?
In Bourll v. Dew (1 Y. & 0. C. C 345), the doneo of a power
of leasing for twenty-one years in possession leased for fourteen
years to D., and aljout a year and a-lialf before the expiration of
the lease, agreed to grant D. a renewal of the lease on the same
terras and for the same period as Lefore. The lessor survived
the period at which the first lease expired : tlie lessee remained
in possession without getting a new lease, but doing acts on the
premises referable only to the agreement. Tliis agreement was
held to bo a valid execution of the power. It is to be observed
tliat the lessor lived until she could have granted a new lease
under her power : scmble, it would have been otherwise, if the
lessor had died before the expiration of the first lease (p. 356) ;
(and seo Les/ic v. Cro>n)/icli)i, 2 I. R. Eq. 134 ; 6-V.s Light Co. v.
Toicse, 35 Ch. D. 519).
But in order to bind the remainderman, there must be a valid
and binding contract {Morgan v. Mil man, 3 D. M. & Gr. 24).
If there be a valid contract to grant the lease by a tenant for
life witli power of leasing, trustees who are donees of a similar
power during the minority of a tenant in tail by purchase, who
succeeds the tenant for life before the lease has been granted in
pursuance of the contract, can effectually exercise such power
by granting a lease in performance of the deceased tenant for
life's contract {Davis v. Harford, 22 Ch. D. 128).
And it appears tliat the principle on whicli the Court inter- Eemainder-
feres in cases of part performance of contracts, and establishes and aliowiug-
them against owners in fee, on the ground that it would be in- exmrnV"
ecpiitable to allow the Statute of Frauds to be pleaded, would not money,
apply to remaindermen ( i D. M. & Gr. 33). But it would be other-
wise if, after the death of tlie tenant for life, the remainderman
•were to lie by and allow the tenant to carry out improvements
and expend money {Stiles v. Coirper, 3 Atk. 692 ; Shannon v.
Bradstrcet, 1 S. & L. 73 ; Hope v. Ld. Cloncurnj, 8 I. R. Eq. 555 ;•
Kennan v. Marphij, 6 L. R. Ir. 108 ; 8 ib. 285). In Shannon v.
Bradstreet the remainderman came of age in 1792, but took no
step to avoid the lease until 1801, and permitted the tenant to
enjoy during all the intermediate time, and admitted that he
knew of the agreement, but considered it not binding on him
348
A CONCISE TREATISE ON TOWERS.
Lessee has no
claim against
estate of te-
nant for life,
except on any
express cove-
nants.
Specific per-
formance of
contract to
lease against
donee of
power.
as remainderman : lie never told tlie tenant so, but allowed him
to continue in possession and lay out money in improvements :
the lease was held binding on him.
Lord lledesdale also refused to allow him to tm^n round the
lessee to seek compensation against the assets of the tenant for
Hfe, on the ground that he had lain by for too long a period,
and was not then to be allowed to vary the rights of others.
But it seems that, in the absence of any covenant for quiet
enjoyment or the like, by the tenant for life, the lessee would
have no remedy against his estate by way of damages: that
would be a decree merely for damages and not compensation
for the benefit the tenant for life's estate had received : for it
is the estate of the remainderman that is benefited {Blorc v.
Sutton, 3 Mer. 237 ; and Stamford v. Omlij, cited 1 S. & L. 65).
But the lessee can recover damages on the lessor's covenants,
if any such were entered into {Loci: v. Farze, L. E. 1 C. P. 441).
In Vernon v. Ld. Egniont (1 Bl. N. S. 554), a tenant for Hfe
had granted leases not in conformity with his power, and his
lessees had expended money and paid fines : he then died,
having made the next tenant for life his residuary legatee. It
was held that before the residue was paid over to the legatee,
he must either confirm or procure to be confirmed the leases, or
otherwise indemnify the executor against all claims and costs in
respect thereof.
14. Although Lord Eedesdale, in Harnett v. Yielding (2 S. &
L. 549), refused to decree specific performance of so much of an
agreement to grant a lease as was within the terms of the power,
it seems to be the better opinion that —
If there be a bond fide contract to grant a lease
■under, but in excess of, the power, the interest of
the tenant for life shall be bound to the extent to
which lie is able to bind it.
In Di/as V. Cruise (2 J. & L. 460), a tenant for life, with power
to lease at the best rent, agreed to demise for a term warranted
by the power, but at a rent which appeared afterwards not to be
])F.Fi:cri\'K KXKciJTiox. 349
the Lest rent. Lord St. Leonards decreed partial performance,
and directed the tenant for life to demise to the extent of his
interest. He said (p. 487) that Lord Redesdale, in Harnett v.
YiehUiifj, had refused partial performance, on the ground that
the lessee knew the party liad only a limited power of leasing
and intended to execute it, and that there was no mutuality.
"I doubt whether that can be maintained as the law of the Court,
when there is no fraud in the transaction. If there is a bond
fide intention to execute the power, and that contract cannot be
carried into effect, I do not see why the interest of the tenant
for life should not be bound, to the extent he is able to bind
it, unless there be some inconvenience." In Graham v. Oliver
(3 B. 128), the Master of the Rolls, alluding to the difficulty in
these cases, said that the Court had thought it right in many
cases to get over these difficulties for the purpose of compelling
parties to perform their agreements, and that it was right they
should be compelled to do so, wliere it could be done without
any great preponderance of inconvenience. If, therefore, it had
appeared in the case before liim that the lessee was aware that
the lease was to be made to him by means of the execution of a
power, then, although the rent were not strictly the best, yet he
should have been of opinion that, it being a fair transaction, the
lessee would be entitled to a performance of the contract to the
extent of binding the life estate of the lessor : as in Lord Boling-
hrolic^s case (cited 1 S. & L. 19, u.), where an incumbent contracted
■with a tenant in tail in remainder for the purchase of the advowson,
and on the faith of that contract, built a better house on the glebe :
afterwards the person in whom the life estate was vested refused
to join in making a tenant to the pra'cipe, in order that a recovery
might be suffered ; and, consequently, no sufficient conveyance
could be made of the advowson. But Lord Thurlow held the
purchaser entitled to a partial performance of the contract ; for
that on the faith of it he had expended money on the glebe ;
(see, too, Butler V. Poicis, 2 Coll. 15G ; Leslie v. Crommclin, 2 I. R.
Eq. 134). It will be observed that these cases relate to specific
performance at the expense of the tenant for life, and out of his
estate, and the partial leases granted were not in execution of
;^oO A CONCISE TREATISE OX TOWERS.
tlie power of leasing at all. But specific performance may he
decreed of a contract to grant a futui"o lease, and such lease may
be granted under the power, if the covenantee can prove that at
the time when the future lease is to come into operation the rent
is the best rent that could be then obtained, and the covenants
are the proper covenants then to be inserted {Gas Light Co. v.
Toicsc, 35 Ch. D. 519 ; see post, Chap. XVII., p. 591).
If the covenantee cannot prove this, he can no more have
specific performance by means of an exercise of the power as
against the tenant for life than he could as against trustees
with similar powers, and such trustees are bound to exercise
their discretion in the choice of a tenant, when the property
falls into possession, and not many years before {Moore y. Clench,
1 Ch. D. 453).
Purchaser And a pm'chaser under a power of sale from a tenant for life
bound. is bound during the life-tenant's life by all the terms of a lease
granted by such tenant for life under a power of leasing, although
they be not authorized by the power, if he have notice of the lease ;
he is bound to do any act which his vendor might have been
compelled to perform.
In Taylor v. Stibbert (2 Yes. jun. 437), a tenant for life with
power of leasing granted leases for lives, and bound himself
upon the dropping of a life to grant a new lease, with the same
provision for renewal on the death of any person to be named
in any future lease. He afterwards sold under a power of sale,
and the purchaser had notice of the lease. Although the power
was exceeded, it was held that the purchaser must specifically
perform the covenant, if a life dropped during the lessor's life ;
(see the case observed on, Sug. Pow. 765-7, and Dart, V. & P.
997, Cth ed.). Lord St. Leonards considers the reasoning in
Lord liosslyn's judgment unsatisfactory, and says that the true
ground upon which the decree is to be supported is that, as the
tenant for life was personally bound by the covenant, and the
purchaser bought with notice, and indeed subject to the leases,
and took a sufiicient estate to enable him to answer the obliga-
tions of the covenant, he was bound to do so in order to prevent
the lessee from having recourse to the tenant for life to enforce
DEFECTIVE EXECITTION. -351
damages against him for breach of tlie covenant. This does
not, liowover, appear to afford much satisfaction to the remain-
derman. If tlio piircliaser were not hoimd by the lease, he
would give full value for the estate ; but, if he is bound, he
deducts the amount of the depreciation caused by the existence
of the lease ; and the remainderman lias no compensation, unless
he run the risk of an action to set aside the sale.
Lord St. Leonards' exi:>lanation was adopted by the Court of
Appeal in Smith v. Whllah' (3 C. P. D. 10), wliere tliey held
that tlie absence of any riglit to sue on tlie covenants enabled
the purchaser in that case to disregard the invalid lease.
15. The aid afforded in equity to leases granted under powers Statutory aid
depended on the consideration whetlior the defect was one of leascs!^'^*^'^^
form or of substance. The Legislature has, liowcver, interfered ^2 & 13 Vict,
and affords wider aid to defective leases under powers.
The preamble of 12 & 13 Vict. c. 2G, states that, " Whereas,
througli mistake or inadvertence on the part of persons granting
leases, and through ignorance on the part of lessees of the titles
of persons from whom leases are accepted, leases granted by
persons having valid powers of leasing are frequently invalid as
against the successors in estate of such persons by reason of the
non-observance or omission of some condition or restriction, or
by reason of some other deviation from the terms of such
powers : And whereas leases granted in the intended exercise
of such powers are sometimes invalid as against tlie successors
in estate of the persons granting the same by reason that at the
time of granting the same the person granting the lease could
not lawfully grant such lease, although at a subsequent time and
during the continuance of his estate in the hereditaments com-
prised in such lease, he might have granted the same in the
lawful exercise of such power : And whereas it is expedient that
provision should be made for granting relief in the cases afore-
said, in manner hereinafter mentioned :
" Sect. 2. It is enacted. That where in the intended exercise Leases invalid
of any such power of leasing as aforesaid, whetlior derived under Stifn^from
an Act of Parliament or under any instrument lawfully treating: ^^'""^ ^l
'^ - o power deemed
such power, a lease has been or shall hereafter be granted, which contracts in
3-r2 A (OXCISK TKEATISK ON TOWEh'S.
equity for is by reasoii of the non-observance or omission of some condition
mitrht have or restriction, or by reason of any other deviation from the
been granted. ^^^.^^^ ^f j.^^g]j power, invalid as against the person entitled after
the determination of the interest of the person granting such
lease to the reversion, or against other the person, wlio, subject
to any lease lawfully granted under such power, would have
been entitled to the hereditaments comprised in such lease, such
lease, in case the same have been made bond fide and the lessee
named therein, his heirs, executors, administrators, or assigns
(as the case may require) have entered thereunder, shall be
considered in equity as a contract for a grant at the request of
the lessee, his heirs, executors, administrators, or assigns (as the
case may require) of a valid lease under such power to the like
purport and effect as such invalid lease as aforesaid, save so far
as any variation may be necessary in order to comply with the
terms of such power, and all persons who would have been
bound by a lease lawfully granted under such power, shall be
bound in equity by such contract : Provided always, that no
lessee under any such invalid lease as aforesaid, his heirs,
executors, administrators, or assigns, shall be entitled by virtue
of any such equitable contract as aforesaid to obtain any
variation of such lease where the persons who would have been
bound by such contract are willing to confirm such lease without
variation .
Acceptance of " 3, The acceptance of rent under any such invalid lease as
aforesaid shall, as against the person so accepting the same, be
deemed a confirmation of such lease. (This section is repealed
by 13 Vict. c. 17, infra.)
Leases invalid "4. "Where a lease granted in the intended exercise of any
vaM^f lessor such power of leasing as aforesaid is invalid by reason that at
contmue ^]^g time of the OTantinff thereof the person granting the same
owner until he o o r o o
could grant, could not lawfully grant such lease, but the estate of such person
in the hereditaments comprised in such lease shall have con-
tinued after the time when such or the like lease might have
been granted by him in the lawful exercise of such power, then
and in every such case such lease shall take effect and be as
valid as if the same had been granted at such last-mentioned
DEFECTIVE EXECUTION'. 353
time and all the provisions herein contained shall apply to every
such lease.
" 5. When a valid power of leasiug is vested in or may be Wliat i^ an
exercised by a person granting a lease, and such lease (by reason exercise of a
of the determination of the estate or interest of such person or P^'^^^''-
otherwise), cannot have effect and continuance according to the
terms thereof, independently of such power, such lease shall for
the purposes of this Act be deemed to be granted in tlio
intended exercise of such power, although such power be not
referred to in such lease.
" 6. Nothing in this Act contained shall extend or be con- Saving rights
. , . • 1 i [• • 11°^ lessors and
strued to prejudice or take away any right oi action or other lessees under
right or remedy to which but for the passing of this Act the ^"^'^^^''" **•
lessee named in any such lease as aforesaid, his heirs, executors,
administrators, or assigns, would or might have been entitled
under or by virtue of any covenant for title or quiet enjoyment
contained in such lease on the part of the person granting the
same, or to prejudice or take away any right of re-entry or other
right or remedy to which but for the passing of this Act the
person granting such lease, his heirs, executors, administrators, or
assigns, or other the person for the time being entitled to the
reversion expectant on the determination of such lease, would or
might have been entitled for or by reason of any breach of the
covenants, conditions, or provisoes contained in such lease, and
on the part of the lessee, his heirs, executors, administrators, or
assigns, to be observed and performed.
" 7. This Act shall not extend to any lease by an ecclesiastical Act not to
extend to
corporation or spiritual ])erson, or to any lease of the possessions certain leases.
of any college, hospital, or charitable foundation, or to any lease
where before the passing of this Act the hereditaments com-
prised in such lease have been sm-rendered or relinquished or
recovered adversely by reason of the invalidity thereof, or there
has been any judgment or decree in any action or smt concern-
ing the validity of such lease, and shall not prejudice or affect
any action or suit abeady commenced and now pending in any
Coiu't of Law or Equity, but every such action and suit may be
proceeded with and such relief had therein as if this Act had
F. A A
35 i
A CONCISE TREATISE ON POWERS.
Where re-
versioner is
•willing to
confirm.
not passed." As to ecclesiastical leases, see Bacon, Abr. tit.
" Leases," E. F. &. H. ; Co. Litt. 44 b, 45 ; 5 Ch. D. 178.
13 Vict. c. 17. By 13 Yict. e. 17 it is enacted that the 3rd section of the
last-mentioned Act he repealed.
" 2. Where, upon or before the acceptance of rent under any
such invalid lease, as in the Act (12 & 13 Vict. c. 26) mentioned,
any receipt, memorandum, or note in writing confirming such
lease is signed by the person accepting such rent, or some other
person thereunto by him lawfully authorized, such acceptance
shall, as against the person so accepting such rent, be deemed a
confirmation of such lease.
" 3. Where during the continuance of the possession taken
under any such invalid lease, as in the Act (12 & 13 Yict. c. 26)
mentioned, the person for the time being entitled (subject to
such possession as aforesaid) to the hereditaments comprised in
such lease, or to the possession or the receipt of the rents and
profits thereof, is able to confirm such lease without variation,
the lessee, his heirs, executors, or administrators (as the case may
require), or any person who would have been bound by the lease
if the same had been valid, shall, upon the request of the person
so able to confh^m the same, be bound to accept a confirmation
accordingly ; and such confirmation may be by memorandum or
note in writing, signed by the persons confirming and accepting
respectively, or by some other persons by them respectively
thereunto lawfully authorized; and after confirmation and
acceptance of confirmation such lease shall be valid, and shall
be deemed to have had from the granting thereof the same
effect as if the same had been originally valid."
16. These enactments do not apply to leases granted by a
mere stranger to the leasing power {Ex parte Cooper, 34 L.
J. Ch. 373, 377, where the lease of freehold property was
granted by the executors of the surviving trustee — " a perfect
stranger to the property and a perfect stranger to the power, a
person to whom not only no power of leasing was granted, but
who was never intended to have any power of any kind").
It appears to have been assumed in Hallett to Martin (24
Ch. D. 624), that these Acts apply to leases by trustees. The
Intention of
these Acts.
DEFECTIVE EXECUTION. 355
phraseology would seem to point to leases by tenants for life
only; but leases by trustees are as much within the mischief
intended to bo cured by the Act as leases by tenants for life.
For the reasons stated at p. 345, ante, it is submitted that the
Acts ajDply to leases granted under the powers of the Settled
Land Acts and the Settled Estates Act.
It may be doubted whether the word " lease " in the Acts
includes an agreement for a lease. It has been held not to do so
in the 14th section of the Conveyancing Act, 1881 {Swain v.
Ayrcs, 21 Q. B. D. 289; Coat.vvorth v. Johnson, 55 L. J". Q. B.
220). See now the Conv. Act of 1892, s. 5.
As to bona fides and entry mentioned in the 2nd section of
the earlier Act, in JSlofi'ett v. Lord Gough (1 L. E. Ir. o31), the
Lord Chancellor (Ball) held that a lessee who had given up an
old lease and continued in possession under a new one, had not
" entered " within the meaning of the Act ; the L. J. Cliristian,
on appeal, thought this too narrow a view ; but he came to the
conclusion that the lease could not be aided on the gi'ound that
the lease was not bona fide. " If the donee of the power know-
ingly, and, if knowingly, wilfully, ignores the two most substantial
safeguards provided by the donor for the protection of the re-
mainderman, viz., that the lease shall not be in reversion, and
that the rent shall be fair and improved — can that lease be said
to be made bond fide ? I venture to think not. Again, the
statute says that the lessee shall be entitled to a valid lease
under the power to the like effect as the invalid lease, save so far
as any variation may be necessary in order to comply with the
terms of such power. What is the force of these latter words ?
Can any lease be within the statute if there be a defect in sub-
stance which is incapable of being made good by the variation ?
Again, I think not."
The intention of sect. 4 of the first Act is to bring leases
imder powers to some extent within the rule of law that " the
interest when it accrues feeds the estoppel" {Doe v. Oliver,
2 Sm. L. C). Thus, in Eaic/j/n's ease (4 Co. Rep. 52), C.
demised land, not his own, to W. for six years. E., the true
owner of the land, demised it to C. for twenty-one years ; and
A A 2
356
A CONCISE TKEATISE ON POWERS.
Distinction
between void
and voidable
leases.
C. re-demised it to E. for ten years. It was resolved tliat the
lease by C, wlien he had nothing in the land, was good against
him by conclusion, and that when R. demised it to him, then
was his interest bound by the conclusion : and that when C.
re-demised to R., R. was also concluded.
Under the last words of sect. 4 it seems that if before acquir-
ing the power the grantor make a lease at variance with the
terms of the power, the lease would, in the event of the grantor
acquiring the power, operate as a valid contract for a lease,
assuming bona fides and entry by the lessee (Davidson, iii. 518).
Independently of these statutes, the rule of law is that a vokl-
ahle, but not a roid, lease may be confirmed by acceptance of
rent. A confirmation may make a voidable or defeasible estate
good, but it cannot work upon an estate that is void at law (Co.
Litt. 295 b).
The question whether a lease is void or voidable only turns
upon the nature of the lessor's estate.
Mr. Hargrave, in his argument on the Yillier's estate case,
states that leases for years derived out of an e>itate of inJicritance
are voidable only ; but being derived out of an estate of freehold
merely are void. It is in consequence of this distinction that
leases for years by bishops or tenants in tail are more available
than those by parsons or prebends ; the two former having an
inheritance, the two latter having no more than a freehold.
Mr. Justice Doderidge in his commonplace book states two
positions, which being literally translated from the law French
are in these words : " Acceptance of rent on lease for years
which is derived out of a freehold will not make the lease good
after the death of him on whose life the freehold is. Acceptance
of rent reserved on a lease derived out of inheritance makes the
lease good" (Harg. Jur. Arg. 1, 132).
As to leases by bishops and parsons, see Bacon, Abr. tit.
Leases, (jr. and H., and Ilerreyonffs case, Dyer, 46 a ; Hodgeskim
V. Tucker, ih. 239 a.
17. The rule may be stated as follows : —
Apart from the statutes 12 & 13 Vict. c. 26,
DEFECTIVE EXECUTION. 357
and 13 & 14 Vict. c. 17, no acceptance of rent by
a remainderman can set uj) a void lease under a
power.
" Where a lease made by a tenant for life is void as being
bad from not conforming to a power, nothing done afterwards
will amount to a confirmation. "Where it is voidable only,
acceptance of rent witli other circumstances may be a confirma-
tion ; acceptance of rent and standing by while improvements
were making, would be material ; but if leases are void, there
is no case either in law or equity by which compensation for
improvements can be compelled " {Bowes v. Jidsf London Water-
works, Jac. 324, 331; Rohson v. Flight, 4 D. J. & S. 608).
And if the remainderman has only a limited interest, no acts
of confirmation of a voidable lease by him can bind those in
remainder after him (Jac. 332 ; and see jffo/;^ v. Ld. Clo)icurr)j,
8 I. E. Eq. 555 ; Loice v. Sicift, 2 B. & B. 529; O'Faijv. Burke,
8 Ir. Ch. R. 225). Lord Eldon founds his judgment in the
case before him on the fact that the lessees had notice by their
own lease, and if it were possible for a lessee to obtain the
legal title without notice, his title would prevail : but a pur-
chaser or lessee cannot shield himself from notice, or the effects
of it, by refraining from inquiries as to title, whether under con-
tract or otherwise [Jackson v. Itoice, 2 S. & S. 472, 475 ; Jones v.
Snu't/i, 1 Ph. 255); and the Vendor and Purchaser Act has made
no difference as to this {Patman v. llarhmd, 17 Ch. D. 353).
Acceptance of rent as such, or of any service reserved by the
lease, operates as an admission by the remainderman receiving
it that the lessee is his tenant and entitles him to notice to quit
[D. V. Watts, 7 T. R. 83 ; D. v. Taniere, 12 Q. B. 998 ; D. v.
Morse, 1 B. & Ad. 365).
The general rule is, that if a party occupy and pay rent
under an agreement for a term, then although such agreement
may not operate to create the proposed term, either in conse-
quence of its not amounting to a lease {Ricliardson v. G{ffbrd, 1
A. & E. 52), or not being a good execution of a power {Bea/e v.
Sanders, 3 Bing. N. C. 850), yet the party so occupying and
358 A CONCISE TREATISE ON POWERS.
paying rent is considered as holding upon all tlie terms of the
agreement not inconsistent Avith a tenancy from year to year, such
as the obligation to repair and the like (2 Sm. L. C. 9th ed. 112).
Accordingly, where a lease warranted b}^ a power, and con-
taining a covenant for perpetual renewal, is granted by a tenant
for life, the reversioner does not, by accepting for many years
after he came into possession the rent reserved upon the lease, con-
firm it, so as to make the covenant for renewal binding upon him
{Eiggim v. Lord Rosso, 3 Bl. 112) ; and it is in each case a question
of fact whether a term contained in the tenancy between the
tenant for life and the lessee is adopted into the new contract
created by acceptance of rent by the remainderman. If such a
tenant continues to hold under the remainderman, and nothing
passes between them except payment and receipt of rent, the
remainderman is not bound by a term of the former tenancy
which was not known to him and is not in accordance with the
custom of the country {Onldcy v. 3Ionch, L. R. 1 Ex. 159).
Effect of The combined effect of the rule of law and the statutes above
mentioned appears to be as follows : —
The effect of the original Act before the repeal of s. 3 is that
the lessee under an invalid lease granted in the intended exercise
of a power, became, on the mere acceptance of rent by the
remainderman, tenant from year to year on the terms of the
lease, with a right to require either a confirmation of the contract
or a lease in accordance with the power, the remainderman
having no option to require a lease in accordance with the terms
of the power.
The effect of the original and Amendment Acts is, that the
mere acceptance of rent, without the memorandum mentioned
by section 2 of the Amendment Act, makes the lessee tenant
from year to year on the terms of the void lease, with the right
to demand a lease either in accordance with that contract or with
the terms of the power, at the option of the remainderman ; but
if the remainderman is willing to confirm the contract without
variation, the lessee cannot insist on having a lease in ac-
cordance with the terms of the power, but is bound to accept
such confirmation. The acceptance of rent, coupled with the
statutes.
DEFECTIVE EXECUTION. -359
memorandum mentioned in section 2 of the Amendment Act,
operates as a confirmation of the lease ; (and see Sug. Pow. 751 ;
3 Da^ddson, 420 ; S. L. Act, 1882, s. 12).
18. Sales under ordinary powers of land apart from the timber, Sale of land
or reserving the minerals, are invalid, and cannot bo aided in tmber.'^°°^
equity.
In Cocl-crcn v. Chohneley (1 CI. & F. 60 ; 1 E. & M. 418 ;
10 B. & C. 564 ; Chohneley v. Paxton, 3 Bing. 207), estates were
vested in trustees and their heirs to the use of A. for life, without
impeachment of waste, with remainders over, and the trustees had
a power of sale witli the consent of A. : they purported to exercise
it by selling the estate apart from the timber, which was valued,
and the purchase-money paid to A. : the power was held to be
badly executed both at law and in equity.
To obviate this, it is provided by 22 & 23 Vict. c. 35, s. 13, 22 & 23 Vict.
that where under a power of sale a bo)id fide sale shall be made • ' • •
of an estate with the timber thereon, or any other articles
attached thereto, and the tenant for life, or any other party to
the transaction, shall by mistake be allowed to receive for his
own benefit a portion of the purchase-money as the value of the
timber or other articles, it shall be lawful for the Court of
Chancery, upon any bill or claim or application in a summary
way, as the case may require or permit, to declare that upon
payment by the purchaser or the claimant under him, of the full
value of the timber and articles at the time of sale, with such
interest thereon as the Court shall direct, and the settlement of
the said principal moneys and interest under the du-ection of the
Court upon such parties as in the opinion of the Com-t shall be
entitled thereto, the said sale ought to be established : and ujion
such payment and settlement being made accordingly the Comt
may declare that the said sale is valid, and thereujion the legal
estate shall vest and go in like manner as if the power had been
duly executed, and the costs of the said application as between
solicitor and client shall be paid by the purchaser or the claimant
under him.
It will be observed that this enactment does not authorize
contracts like that in CoclccrcU v. Chohneh;/ : it merely enables
360 A CONCISE TREATISE ON POWERS.
the Court to aid the defective execution of the power, if it shall
think fit, at the purchaser's expense. The 16th section of 40 &
41 Yict. c. 18, authorizes sales hy the Court of land and timber
(not being ornamental timber) apart.
Sale of land 19. In Buckloij V. J/o^r// (29 B. 546), Lord Eomilly held
SeraS!™ that the ordinary power of sale was not well exercised by a sale
of the land, reserving the minerals. And the late Master of the
Eolls, in Chambers [Re Brools and Higham, 18th July, 1877),
held that the same rule applied to a partition.
Accordingly, it was enacted by 25 & 26 Vict. c. 108, that "every
trustee or other person now or hereafter to become authorized to
dispose of land by way of sale, exchange, partition, or enfran-
chisement, may, unless forbidden by the instrument creating the
trust or power, so dispose of such land with an exception or
reservation of any minerals, and with or without rights and
powers of or incidental to the working, getting, or carrying away
of such minerals, or may (unless forbidden as aforesaid) dispose
of by way of sale, exchange or partition, the minerals with or
without such rights or powers, separately from the residue of the
land, and in either case without prejudice to any future exercise
of the authority with respect to the excepted minerals or (as the
case may be) the undisposed of land. But this enactment shall
not enable any such disposition as aforesaid without the previous
sanction of the Court of Chancery, to be obtained on petition in
a summary way of the trustee or other person authorized as
aforesaid, which sanction once obtained shall extend to the en-
abling from time to time of any disposition within this enact-
ment of any part or parts of the land comprised in the order to
be made on such petition without the necessity of any further or
other application to the Court.
"Every trustee or other person" includes mortgagees {Re
Beaumont, 12 Eq. 86; Re WiUdnson, 13 Eq. 634). The cestuis
que trust entitled should bo served {Re Broom, 11 W. E. 19;
Re Palmer, 13 Eq. 408) ; and Y.-C. Wickens said that mort-
gagees subsequent to the petitioning mortgagee need not (12 Eq.
86). But in Re Hirst (45 Ch. D. 263), North, J., required the
mortgagor to be served.
DEFECTIVE EXECUTION.
And where trustees have power of sale with consent of the
tenant for life, tlio petition should he served on the tenant for
life, and not on the remaindermen {lie Pri/se, 10 Eq. 5:31 ;
Re Nagle, G Ch. D. 104).
The order has been made generally and without reference to
any particular sales (7iV WiUtvai/, o2 L.J. Ch. 220; Re Wi/tui,
16 Eq. 237).
It has been held that under s. 121 of the Lunacy Regulation
Act, 1853, the Court has power to make an exchange of the
lunatic's land without the minerals under it {Re Bicconson, 15 Ch.
D. 31G; and see Lunacy Act, 18i)0, s. 120).
Under s. 17 of the S. L. Act, 18S2, a sale, exchange, partition,
or mining lease may bo made with or without an exception of
mines and minerals.
Under s. 19 of 40 & 41 Vict. c. 18, on a sale of settled land
by the Court, minerals may be excepted and rights reserved.
361
362
A CONCISE TREATISE ON POWERS.
CHAPTER VIII.
EXCLUSIVE APPOINTMENTS.
PAGE
1. Definition 3G2
2. Wliat words create exclusive
potvers ib.
Instances of non-exclusive and of
exclusive powers 363
3. Failure of exclusive appointments 365
Hotchpot 367
FAOE
4. What is an exclusive appoint-
ment 370
5. lUusory appointments 371
6. 11 Geo. 4 (j- 1 Will. 4, c. 46. , . . 372
7. Cases under the statute 373
8. The law before the statute ib.
9. Lord Selborne^s Act 374
Definition.
What words
create exclu-
sive powers.
The law relating to exclusive appointments has been much
modified by legislation. The first five paragraphs of this
chapter must be read in connection with, and subject to, the
enactments stated in the concluding paragraphs.
1. An exclusive power, or power of selection, is a power of
appointment among a class which authorizes the donee to select
one or more of such class to the exclusion of the others. A
non-exclusive power, or power of distribution, authorizes the
donee to distribute the ino-perty among the class in such shares
and proportions as he pleases, but not so as to exclude any
object entirely. An exclusive power in a marriage settlement
of personalty usually takes the form of a declaration, that the
trustees shall stand possessed of the fund in trust for all or such
one or more exclusively of the others or other of the children
of the marriage as the donee of the power shall appoint. In
settlements of real estate, the power is usually created by direct
limitation to the use of the child or of all or such one or more,
exclusively of the others or other of the children of the marriage,
as the donee of the power shall appoint.
2. Each case must depend on the intention expressed in the
particular instrument creating the power : no general rule can
EXCLUSIVE APPOINTMENTS. -^tiB
be laid down, except perhaps that the words " all and every "
are mandatory and make it necessary that each object should
have a share (5 Ves. 857), and that "such" authorizes exclusion,
unless a contrary intention appear ; (approved by Jessel, M. R.,
in Re Veak, 4 Ch. D. 64, and by Hall, V.-C, in Chamherlain v.
Napkr, 15 Ch. D. 634).
In the folloAving cases, it was held that the terms of the Instances of
several powers did not authorize exclusive appointments. In powers.
Wilson V. Piggott (2 Yes. jun. 351), the trust fund was directed
to be paid " among all and every tlie child and children other
than an eldest or only son," as the survivor of A. and B. should
appoint.
In Bultecl v. Plummer (6 Ch. 160), the trust was to transfer
4,000/. " unto and amongst all and every the son and sons,
daugliter and daughters of Gr. T. P. and L. P. and the children
of such sons and daughters as should be dead leaving issue," as
G. T. P. and L. P. should appoint ; (and see Allowaij v. AUoica)/,
4 Dr. & War. 380 ; Garihmnte v. liohinso)}, 2 Sim. 43 ; Stohcorfhg
V. Samrqff, 33 L. J. Ch. 708 ; Laic/orr. Ifenderson, 10 I. R. Eq.
150 ; Donoghue v. Broolr, 9 I. R. Eq. 489).
In Stnitt v. Braithicaite (5 De Gr. & Sm. 369), there was a
direction to trustees to employ the rents and profits of real
estate " towards tlie maintenance and education of all and every
the child or children " of J. 8. and >S. »S., and on their attaining
twenty-one, " to convey the same premises unto such child or
children in such manner shares and proportions and for such
uses estate and estates" as J. S. and S. S. should jointly appoint.
" Such " was read " the said," and the power was held not to
warrant an exclusive appointment.
In llobinson v. Syken (23 B. 40), the power was to appoint
" unto and amongst such child or childi'en of the marriage, or
unto and amongst the issue of such child or children in case
such child or children should be then dead leaving issue in such
shai'cs and proportions as A. sliould think fit " : this was held
not to authorize an appointment to some of the issue ex-
clusively.
In Be David (Joh. 495), the words were "to and among such
364
A CONCISE TREATISE ON POWERS.
Contrary
intention.
Instances of
exclusive
powers.
of the testator's cbildi'en as should be living at A.'s death, in
such shares as A. should appoint ; (and see Burleigh v. Pearson,
1 Yes. sen. 281 ; and Ward v. Ti/rreJl, 25 B. 563 ; 27 L. J. Ch.
749).
Although the words of the power may not, taken alone,
authorize an exclusive appointment, yet the intention that
exclusion should he authorized may be collected from the whole
scope of the instrument.
In Burrell v. BurreU (Ambl. 600 ; 5 Ves. 860), the testator
gave all his real and personal estate to his wife, to the end that
she might give his children such fortunes as she should think
proper, or they best deserve ; to whom he charged his sons and
daughters to be dutiful and obedient, and loving and affectionate
to each other. The wife appointed to all the children, but gave
one an illusory share. Lord Camden was of opinion that these
words were so ample, that if she thought fit to give nothing to
one, she might so execute her power. Lord Alvanley says of
this (5 Yes. 860), " I will not say what my own opinion would
have been. I am willing to subscribe to that of Lord Camden
on such a doubtful question, being perfectly satisfied that in
setting aside these appointments, criticising upon the words
'to and amongst &c.,' and the rule as to illusory shares, the
Court goes against the intention. I must therefore think that
under the words of that will Lord Camden thought the wife
might have given the whole to one child, and had a right to
exclude any who in her opinion did not want it." In Mahon v.
Savage (1 S. & L. Ill), a testator bequeathed a legacy to his
executors to be distributed among his poor relations or such
other objects of charity as should be mentioned in his private
instructions. No instructions were left, and Lord Eedesdale was
of opinion that the executors had a discretionary power and
need not include all the testator's poor relations.
In Kemp v. Kemp (5 Yes. 857), the Master of the Eolls
mentions certain cases in which exclusive appointments have
been authorized. In Hn-[ft v. Gregmn (1 T. R. 432), the words
were " to and for the use and behoof of such child or children of
J. Gr." as he should appoint. In this case Ashurst, J., seems to
EXCLUSIVE APPOINTMENTS. 365
have thought there might he a distinction between real and
personal estate (.sw/ qit.). In Sprii/fj v. JJi/cs (1 T. li. 43o, n.),
" to and amongst such of my relations as shall he living at the
time of my decease in such parts, shares and proportions," as A.
should think proper. In Thomas v Thomas (2 Yem. 513), "to
one or more of his cliildron." Tomlimon v. BUjhton (1 P. W.
149), " to any of his children." Maccy v. Hhurmcr (1 Atk. Ji89),
" amongst all or such of his children." Liefe v. Saltinrj-'itonc (1
Mod. 18;^, "to such of my children." In Re Veale (4 Ch. D.
61 ; 5 Cb. D. 622), the words were "to and amongst my other
children or theu' issue in such parts, shares and proportions,
manner and form," &c. : this was held to give a power of selec-
tion not merely between children or issue, but also between the
individuals of the class. In Chainber/ain v. Napier (15 Ch. D.
614), the words were "for such child or childi-en, and if more
than one in such shares," &c. All these words were held to
show a manifest intention to give a power to appoint to any one
child; (and see Turnerx. Bryans,Zl B. 303). And it seems
that a power to appoint " to one of the sons of A. as B. should
direct," would not merely authorize, but compel an exclusive
appointment to one only : jjer Lord Alvanley in Broivn v. Higgs
(4 Yes. 717).
3. Apart from 37 & 38 Vict. c. 37, an appointment
under a non-exclusive power, which exhausts the
property subject to the power witliout giving a
share to all the objects, fails entirely.
The same rule applies if several appointments, to take effect When exclu-
together, are made by one and the same instrument to different mcutTfi'dr "
persons, by which the whole fund is exhausted without a share ^vhen''in'"art
being given to each of the objects.
In Bulteelv. Plummet' (6 Ch. 160), a testatrix, having power
to appoint a fund by will amongst all and ever}' of her children
and their children, covenanted to appoint 2,500/. to one child.
By lier ^vill she accordingly appointed 2,500/. to that cliild, and
appointed other parts of the fund to other objects of the power,
366 A CONCISE TREATISE ON POWERS.
and bequeathed and appointed all the estate over which she had
a disposing power to another object: these appointments ex-
hausted the fund without providing a share for all the objects.
It was held that all tlie appointments failed. Lord Hatherley
said, " This is an instrument which at once takes effect as to all
the objects ; the whole fvmd is given to the several objects
mentioned, one of whom is the last. It appears to me that it
would be impossible for us, on any collocation of the persons, to
say that because she has last named one particular person, there-
fore all the other appointments are good ; and this one being
void, the rest are to stand."
But the rule does not apply to appointments of portions of
property made at different times. If an appointment of part
has been made, which is perfectly good, and there is left residue
enough to give something to all the other objects of the power,
then a gift made by deed to others may be perfectly good and the
appointor may go on until he comes to the last, which may be
bad. The others are perfectly good, and are not made bad
because there is a bad disposition of the rest of the fund {ibid. ;
and see Wikon v. Kcnriclc, 31 Ch. D. 658 ; Mcqyieton v. Maple-
ton, 4 Dr. 515 ; 28 L. J. Ch. 785).
By setting aside the last appointment, which in the case
supposed, is an independent one, part of the fund is left free to
go as in default of appointment, and therefore none of the
objects are excluded. The power may be well exercised by
several appointments, although each appointment does not give
something to all the objects, if all the objects ultimately take a
share either by, or in default of, appointment [Bristow v. Ward,
2 Yes. jun. 336 ; Wikon v. Piggoff, ib. 351 ; Young v. Lord
Waterparlc, 13 Sim. 199).
Appointments It is well established that appointments, in execution of non-
inception exclusive powers, which exhaust the whole fund without giving
^ent ^^°^ ^^ ^ share to all the objects, may be rendered valid by subsequent
events ; if part of the fund purported to be appointed fails, there
is an end to the question of exclusive appointment.
In Banking v. Barnes (33 L. J. Ch. 539), the donee of a non-
exclusive power appointed by deed in 1830 two-sixths of the
EXCLUSIVE APPOINTMENTS. '^^'t
trust fund to one of the objects ; and in 1843, by two deeds
poll, she appointed the residue to two otliers of the objects,
assuming that the appointment of 1830 was valid. These three
appointments exhausted the fund without including all the
objects of the power. The appointment of 1830 was subse-
quently set aside as to one moiety thereof as being a fraud on
the power. It was held that the partial failure of the appoint-
ment of 1830, by setting free a portion of the fund and leaving
it to devolve as unappointed, removed all objection to the sub-
sequent appointments on the ground of exclusiveness.
It would be the same if the appointments were by one
and the same instrument, e. g., by will. In BuUeel v. Plumhicr
(stated (utfc, p. 365), Lord Ilatherley doubted whether it was not
possible to say that the appointment of 2,000/. was fraudulent
and void, " the effect of which would bo to make the other gifts
good." And in the Court below (8 Eq. 580), Y.-C. Malins
held that the appointment of the residue was invalid, and that
consequently the other appointments were good. On the other
hand, in Barry v. Barry (101. E. Eq. 397), the M. R. is reported
to have said that if an appointment is good at the time when
it is made, subsequent events cannot make it bad ; (see this case
commented on, ante, p. 253).
It is not necessary, in order to establish an appointment of
part of the property to one object under a non-exclusive power,
that the appointor should appoint the residue to the other ob-
jects ; it will be sufficient, if he leave it to devolve under the
gift in default of appointment.
It is submitted that a hotchpot clause is usual, and would be Hotchpot,
inserted in any settlement made under the direction of the Court
in pursuance of articles {AUoivaij v. AUoicay, 4 Dr. & War. 380,
390 ; Re Noreoff, 14 Ir. Ch. R. 315) ; notwithstanding what was
said in Lees v. Lees (5 I. R. Eq. 558), and in Wilkinson v. Nelson
(7 Jur. N. S. 480 ; 9 W. R. 393), a deed was rectified by in-
serting a hotchpot clause. But in executed instruments, no
hotchpot clause can be implied ; and accordingly, although the
power be non-exclusive, an appointee of part of a fund w ill be
entitled to a share of any unappointed part in the absence of
368
A CONCISE TREATISE ON POWERS.
special directions as to liotelipot. The burden of proving that
the gift over to all equally in default of appointment is not to
take effect, lies on the party asserting it ; it is not enough to
show that, at the time of the execution of the deed, it was the
intention of the donee that the appointee should have no more
than the part appointed. It is necessary to go beyond that and
show, by express words or by necessary implication, that the
other objects should take something under the deed ( WomhwcU
V. Hanrotf, 14 B. 143 ; Wilson v. Piggotf, 2 Ves. jun. 351 ;
Allou-aij V. Alhicau, 4 Dru. & War. 380 ; Walmsleij v. Vaughan,
1 De G. & J. 114).
Onus, how It is, however, open to the persons claimino: in default of ap-
discharged. . . T
pomtment to show (a) that the appointment is so worded as to
contain not merely an express appointment to the immediate
appointee, but an implied appointment to the other objects of
the power ; or (b) that the appointment is really conditional on
the appointee claiming no part of the unappointed fund ; or
(c) that the appointee is estopped from claiming any share in
the unappointed fund.
(a) Foster v. Cautleij (6 D. M. & Gr. 55), is an illustration of
the first class of cases, where the L. C. found an implied ap-
pointment in the words used; and Re Alfreton (31 W. E. 702),
is a case where no such implication could be found. In that
case lands were conveyed in 1842 to trustees on trust to raise
after the death of M., or during his life with his consent, 12,000/.
for the benefit of E. and L., daughters of M., in such shares as
M. should appoint, and in default of appointment equally at
twenty-one or marriage, to be paid to them at that age or time
after the deatb of M., or by his consent in writing during his
life. In 1844, M. appointed 4,000/. to be raised and paid
to E. at once, and 1,000/. on his death " to the intent that
the payment of the portion or portions of " E. might be ac-
celerated. M. died without making any further appointment;
and it was held that E. was entitled to share in the unappointed
fund.
(b) In Foster v. Cautley (supra), the L. C. thought that the
words " as and for her original share," and " in lieu of all claims
EXCLUSIVE APPOINTMENTS. 369
and demands to or for lier original or principal sliare or interest
in the trust moneys " would not liave been enough to disentitle
the appointee to share in the unappointed residue. It has been
said, however, that there is a distinction between cases where
the appointment is of property " as a child's share," and where
it is " in lieu of a child's share." " Where a father appoints to
a child a certain sum and says that he gives it as his share of
the fund, he really saj^s and does no more tlian he says and
does when he makes the appointment. But when the father
says that what he gives is to be in lieu of his share, the fair pre-
sumption is that he intended it as all the child should ever take"
{Armstroug v. Li/nu, 9 I. E. Eq. 186, 198 ; Sug. Tow. 285 ;
Chine V. Apjohn, 17 Ir. Ch. E. 25). It is submitted that it is
a question of construction in each case whether the appointment
really imposes a condition on the appointee to take no share of
the unappointed fund.
(c) It has been held that there is a distinction between cases
where the appointment is made by a deed poll to which the
child is no party, and cases where the appointment is made by
deed i)der partes to which the child is a party {Armstrong v.
Lynn, 9 I. E. Eq. 186, 198).
In Clune v. Apjohn (IT Ir. Ch. E. 25), the appointments in
question were made by indentures to which the appointees were
parties : and one appointment w\is made and the appointee ac-
cepted it " as and for and in lieu and discharge of her share or
portion" ; the other was made and accepted by the appointee
" as and for her share and proportion, and in lieu, bar, and full
satisfaction of aU claims which the appointee might have." The
decision in this case appears to proceed on the ground of es-
toppel; (but see Close v. Coote, 7 L. E. Ir. 564).
When a payment under an appointment has been once made. Payments
it is jfinal, unless there is a hotchpot clause : and therefore, if ^^^1.'
payments on account are properly made in pursuance of appoint-
ments, and afterwards an unavoidable loss occiu's, rendering the
trust funds insufficient to pay all the appointees in full, the
balance belongs to all the appointees in proportion to the
impaid amounts ; and the payments rightly made on account
F. J^ B
370
A CONCISE TREATISE ON POWERS.
Two settle-
ments with
distinct
hotchpot
clauses.
Everything
is broug-ht
into hotch-
pot.
Interest.
What is an
exclu.sive
appointment.
cannot be brought into hotchpot {Be Bacon, Hutton v. Anderson,
42 Ch. D. 559).
If two distinct settlements are made on a marriage, each
dealing with separate sums, and each containing a hotchpot
clause, such clauses are read as distinct and separate clauses,
and affect only the property comprised in the respective settle-
ments {Montague v. Moiitague, 15 B. 565). "Where the hotchpot
clause does apply, everything, including life interests and re-
versionary interests, must be brought into account {Buclicr v.
SchoJefivId, 1 II. & M. 36 ; Bales v. Dmke, 1 Ch. D. 217).
Under the ordinary hotchpot clause, it is submitted that in-
terest should be charged on any sums appointed and paid over
before final division, as from the determination of any pending
life interests, and not earlier. The intention is that the objects
of the power should share equally inter se. If there is a prior
life interest, and an appointment is made to an object and the
life interest is released, the appointee gains nothing at the ex-
pense of the other objects during the lifetime of the tenant for
life : they have been deprived of nothing which they would
otherwise have had during that period, and can only require the
appointee to account for interest as from the date of the life
tenant's death ; (cf. Field v. Seicard, 5 Ch. D. 538 ; Bees v.
George, 17 Ch. D. 701 ; Stewart v. Stewart, 15 Ch. D. 539 ;
Hilton V. miton, 14 Eq. 468).
4. It is usually clear whether an apjoointor has or has not
entirely excluded any one object of the power; but the question
may arise whether there has been any intention to appoint to
all the objects or not ; this will depend on the rules already
stated with regard to the execution of powers ; but two cases of
a soraewliat peculiar character may be here noticed.
In WJiife V. Wihon (1 Drew. 298), a married woman appointed
the residue of a fund, over which she had a general power, to
her children, A., B., and C, in such manner as D. should by
.will appoint. 1). by his will in exercise of the power appointed
500/. to A., ( ) to B., " he having been already more than
sufficiently provided for," and the residue to C. This appoint-
ment was held bad. V.-C. Kindersley thought it by no means
EXCLUSIVE APPOINTMENTS. 371
clear that D. did not intend to appoint something to B., but as
nothing had been actually given, lie could not liold that a power
to appoint to three authorized an appointment to two.
In Gains/on/ v. JJioiii (I7Eq. 405), a testatrix, a spinster, having
power to appoint certani funds by will in favour of A., B., C,
D., and E., in such parts, shares, and projiortions as she might
think fit, and having no other power, by her will gave legacies
of 61. each to A., B., and C, and all the residue of her property,
of whatever kind and wheresoever situate, and over wliich she
had any power of appointment, to D. and E. The testatrix liad
some personal estate of her own. The Master of the Kolls said,
that where you find a legacy followed by a gift of the residue of
real and personal estate, the word residue is considered to mean
that out of whieli something given before has been taken, and
the result is to make the residue a mixed fund and to charge
the legacies proportionally and rateably upon the mixed fund.
He considered that doctrine was applicable to appointments
under powers, and that the legacies of ul. were consequently
payable partly out of the testatrix's own property and partly
out of the fund appointed ; and he accordingly held the power
well exercised ; (and see lie David, John. 495 ; Bisnr// v. Crosse,
2 Eq. 502).
5. Under the old law, before the statutory alteration next Illusory
. . , appointments.
mentioned, when a power was given to appoint among a class
in such parts or shares as tlie appointor should direct, it was
held that the meaning of the person creating the power was,
that tlie appointor sliould appoint a substantial share to each
object of the power. This was not according to the literal
wording of the power, but it made sense of it ; because, if tlie
appointment of a farthing would do, then, on the principle
de minimis noii curat lex, it would make every non-exclusive an
exclusive power. This doctrine, however, was found incon-
venient. No one knew exactly how miicli a substantial portion
of the property was, and it was impossible to say without
resorting to litigation, wliat the least sum was which the
appointor was authorized to app(jiut. This iuronvonience led
to an alteration of the law, under the guidance of Lord
ij b2
372 A CONCISE TREATISE ON POWERS.
St. Leonards, and it was enacted that in future no appointment
might be objected to on the ground of its being illusory, that is,
on the ground of the smallness of the sura or share appointed,
but the construction of tlie power was not altered. The
consequence of this alteration has been this, that where the
power is non-exclusive, if the appointor forgets to appoint a
shilling or even a farthing to every object of the power, the
appointment is bad, because someone is left out. But if some
share, however small, be appointed or left unappointed to
devolve upon all the objects, the appointment will be valid
(17 Eq. 406).
11 Geo. 4 & 6. The statute above referred to enacted as follows : — (i.) No
' ' ' " appointment which from and after the passing of the Act
(16th July, 1830), shall be made in exercise of any power or
authority to appoint any property, real or personal, amongst
several objects, shall be invalid or impeached in equity on the
ground that an imsubstantial, illusory, or nominal share only
shall be thereby appointed to, or left unappointed to devolve
upon, any one or more of the objects of such power ; but every
such appointment shall be valid and effectual in equity as well
as at law, notwithstanding that any one or more of the objects
shall not thereunder or in default of such appointment, take
more than an unsubstantial, illusory, or nominal share of the
property subjected to such power, (ii.) Provided that nothing
in the Act contained shall prejudice or affect any provision in
any deed, will, or other instrument creating any such power as
aforesaid, which shall declare the amount of the share or shares
from which no object of the power shall be excluded, (iii.) Pro-
vided also that nothing in the Act contained shall be construed,
deemed, or taken at law or in equity, to give any other validity,
force, or effect, to any aj^jpointment than such appointment
would have had, if a substantial share of the property affected
by the power had been thereby appointed to, or left unappointed
to devolve upon, any object of such power.
Retrospective. The statute operates retrospectively on powers existing at the
time of, but executed after, the passing of the Act [Rcid v. Reid,
25 B. 469, 480 ; where the appointor's will was dated in 1847).
EXCLUSIVE APPOINTMENTS.
373
7. The statute required a share, however small, to be given to Appointment
of coutlug'ent
or left undisposed of to devolve upon all the objects of the power or reverwion-
{Bti/tec/ \. rinminer, G Ch. 1G2). It has been considered that ^^'^ ^
an appointment under a non-exclasive power of the whole
property to some of the objects, with a gift over, in case any of
them should die under age, or before marriugo under age, of
their shares to the otlier ■)bjects, was not valid under the Act
{Minchin v. Jlinc/iin, 3 Ir. Ch. Rep. 107). But Lord St.
Leonards says of this (Pow. 450), that it was not necessary to
decide this point, and it seems to require further consideration.
And in lie Capon (10 Cli. D. 484), Jessel, M. 11., disapproved of
the dictum, and held that an appointment in 1834 unto and
amongst the objects of the power, " and the survivors and
survivor of them equally, and if only one should survive the
appointor, then to that one only," was valid.
The intention of the legislature in enacting that no share
should be deemed illusory, but leaving it still obligatory on the
appointor to give something to each object, seems to have been
to make it certain in each case that the omission of any object
was not an oversight. The most trifling amount is sufficient to
satisfy the statute. Thus, in Ee Stone (3 I. R. Eq. 621), the
donee of a non-exclusive power appointed to one object all the
lands and premises subject to the power, except the square yard
of land therein mentioned, and appointed to the other object one
square yard of the said lands in such part thereof as the first
appointee should think fit. This was held good, the Court
being of opinion that the legislatm'e had authorized an appoint-
ment which is " illusory, unsubstantial, and nominal : in fact, a
mere cipher." It would seem, therefore, that the appointment
of a mere reversionary or contingent interest would be sufficient ;
all that is necessary is that something should be given.
8. Before the statute the donee of the power could not give a The law-
. before the
mere reversionary interest to any child ; but he might give to statute.
one child a share for his own life, or for the life of another
person, with remainder over to the other children, and he
might cross the gifts from one to another, provided only that he
374 A CONCISE TREATISE ON POWERS.
gave to each a real substantial sLare in possession and not a
mere nominal or reversionary interest {per Lord St. Leonards,
AUoira;/ v. AUoicai/, 4 Dr. & War. 387).
In Lloyd v. Lavcr (14 Sim. 645), where the appointment was
before the Act, the Yice-Chancellor held that if a fund is given
in trust for all and over}- the child and children of A. who shall
be living at the time of her decease, in such parts or shares and
in such manner as A. shall appoint, an appointment of succes-
sive life interests in the whole income of the fund is not an
appointment to all the objects in shares. He apprehended that
no appointment could be a good execution of such a power,
unless it gave a share of the capital to each of the objects. For
the law on illusory appointments before this statute, see Sug.
Pow. 938.
9. The Act 37 & 38 Yict. c. 37, enacts, s. 1, " that no appoint-
ment, which from and after the passing of this Act shall be made in
exercise of any power to appoint any property real or personal
amongst several objects, shall be invalid at law or in equity on
the ground that any object of such power has been altogether
excluded, but every such appointment shall be valid and effec-
tual, notwithstanding that any one or more of the objects shall
not thereby or in default of appointment take a share or shares
of the property subject to such power." S. 2 provides "that
nothing in tliis Act contained shall prejudice or affect any
provision in any deed, will, or other instrument creating any
power, which shall declare the amount or the share or shares
from which no object of the power shall be excluded, or some
one or more object or objects of the power shall not be ex-
cluded."
The Act of 1830 enabled an appointor to cut off any object
of the power with a shilling : the Act of 1874 enables him to
cut off the shilling also.
The Act of 1874 is expressed in words similar to those of the
Act of 1830, and is therefore retrospective in that it applies to
appointments made after the Act in exercise of powers created
before the Act. It has, however, been held that the Act does
EXCLUSIVE APPOINTMENTH. 375
not apply to a will executing a power made before the Act,
although the testator dies after the Act {Jfoi/iian v. Jfoi/iiaii, I
L. 1{. Ir. 882). But a will made before the Act, and repub-
lished by a codicil after the Act, is within the operation of the
Act {Re WahJi, 1 L. li. Ir. 320). The Act does not authorize
the appointor to impose on any appointee a condition which is
not within the terms of the power {lUttler v. Btdler, 7 L. II. Ir.
401).
376
A CONCISE TREATISE ON POWERS.
CHAPTER IX.
ELECTION.
Principle of
election.
Applies to all
instr omenta.
PAGE
1 . Frinciple of election 376
2. Applies to appointments under
powers 377
3. Limits of the doctrine 380
4. Exception where there is an
absolute appointment followed
by improper conditions 382
5. The disappointed donee is en-
titled to compensation 383
6. To what property the doctrine
applies 385
7. Effect of election 380
8. What is necessary to raise a
case of election 388
9. Where testator has partial in-
terest 389
10. Sequisites to make election bind-
ing
390
1 1 . Election by heir 393
12. Qnalijied election 394
13. Ademption and satisfaction ., ib.
14. Three classes of cases 395
15. Ttvo questions in each case .... ib.
Satisfaction as discharge of debt ib.
16. Satisfaction on doctrine of double
portions 396
17. Fresumptions of law in the three
classes 397
(a) In first class ib.
(b) In second class 399
(c) In third class 400
1. The principle of election is that he who accepts a
benefit under an instrument must adopt the whole
of it, conforming with all its provisions and re-
nouncing every right inconsistent with them
{Streatfield v. Streatfield, 1 W. & T. L. C).
The doctrine is applicable to all instruments, deeds as well as
■wills. " The general rule is, that a person cannot accept and
reject the same instrument, and this is the foundation of the
law of election, on which Com-ts of Equity particularly have
grounded a variety of decisions in cases both of deeds and of
wills, though xjrincipally in cases of wills, because deeds, being
generally matters of contract, the contract is not to be inter-
preted otherwise than as the consideration which is expressed
requires " {per Lord Eedesdale, Binningliam v. Kincan, 2 S. &
L. 444, 449). In Codrington v. Lindsaij (8 Oh. 578, affirmed
L. E. 7 H. L. 854), Lord Selborne cites this rule with appro-
bation, and says that it is illustrated as to eases of voluntary
deeds hj Lleii'elhjn v. Machcorth (Barnard. 445), and Anderson v.
ELECTION. 377
Abbott (23 B. 457) ; as to cases of contract for valuable con-
sideration resting in articles by Savi/l v. Savi// (2 Coll. 721),
and Brown v. Bruicn (2 Eq. 481) ; and as to contracts for value
completely executed by conveyance and assignment, by BigJand
V. JInddledon (3 13ro. C. C. 285 n.) ; Chetici/ml v. Fleetwood
(1 Bro. P. C. 300) ; Green v. Green (2 Mer. 86) ; Bacon v.
Cosbij (4 De G. & Sm. 261) ; Mo>iley v. Ward (29 B. 407) ;
and Willouglibij v. Middleton (2 J. & H. 344). He also suggests
(p. 586) that the principle of election, as applied to deeds, is
that a person claiming under a deed shall not interfere by title
paramount to prevent another part of the deed from having
effect according to its construction ; (and see Sadlier v. Butler,
1 I. El. Eq. 415). But cases of express condition must be
distinguished : sucli are not cases of election at all (>Sug. Pow.
577, and see 2 Ves. jim. 371).
2. The doctrine of election applies to appointments under Election
powers ; it may be stated as a general rule that applies to
r ' '' o appointments
under powers.
Wliere there is a direct appointment to strangers
to the power, and a gift by the same instrument
to the persons entitled in default of appointment,
the latter will be put to their election ( Whistler v.
Webster, 2 Ves. jun. 367 ; Be Brooksbank, 34 Cli. D.
160; Be Wheatlei/, 27 Ch. D. 606).
In order to raise a case of election there must be an absolute
dhect appointment to the strangers ; nothing short of that will
be effectual ; a mere condition annexed to an appointment to an
object would be treated as an unwarranted attempt to restrict
the interests of the real objects of the power, and would be
rejected accordingly. The cases of Carver v. Bowles (2 R. & M.
301), and Blaeket v. Lamb (14 B. 482), illustrate this and show
that the first question is, are the words of appointment sufficient
to vest the property absolutely in the objects of the power, with
a superadded condition not warranted by the power, or do the
superadded words in terms constitute an absolute unconditional
appointment in favour of the strangers ? If the former is the
378 A CONCISE TREATISE ON POWERS.
case, no question of election can arise, because the object of the
power is the only person who takes, and there is no conflict
between him and any other person [White v. TV7iifo, 22 Ch. D.
555). In that case a testator, with power to appoint settled
lands to the children of his first marriage, appointed them to
his eldest son, subject to charges in favour of his other children,
some of whom were by a second marriage ; and devised land
and shares of his own to the same son, subject to the same
charges so as to equalise the shares of all his children in all his
property. Fry, J., held that a case of election arose ; and this
was followed in Kinff v. Kiitr/ (13 L. R. Ir. 531), where the
donee of a testamentary power of appointing land among his
male issue devised certain of such lands to B. his eldest son " to
be chargeable with 2,000/. borrowed for B.'s sole use," and gave
legacies out of his own estate to all the other objects of the
power (who were apparently also the persons entitled in de-
fault of appointment, though this is not stated in the report),
and directed payment of his debts and legacies out of a fund
made up of certain proceeds of sale and the sum of 2,000/.
chargeable on the appointed estate. It was held that there was
not an absolute aiipointment of the estate to B. subject to a void
charge ; but that all that was appointed was the estate minus
2,000/., and that a case of election was consequently raised
against the male issue other than B.
The appointor must assume to dispose of that which is not his :
if he merely states that it has been disposed of in a particular
"way, and then proceeds to distribute his property on that assump-
tion, and it tiu-ns out that he was mistaken, no case of election
arises {Leicis v. Leivis, 11 I. R. Eq. 343 ; Dmlncood v. Peyton, 18
Ves. 41 ; and see Re Woodleys, 29 L. R. Ir. 304). And he may
show that he has appointed to the strangers to the power, only
if and so far as he was lawfully entitled to do so, with a gift
over to the objects if he could not effect his primary purpose.
In such a case no Cjuestion of election would arise {lie Swin-
bunie, 27 Ch. D. 696; C/norh v. Kemhlc, 5 Sim. 526).
Appointment Wherc a man having a power to appoint to A. a fund, which
and gift to ^ default of appointment is given to B., exercises the power in
ELECTION.
379
favour of C. and gives other benefits to B., although .the exe- persons
cution IS merely void, yet it 15. will accept the giits to him, he default.
must convey the estate to C. according to the appointment (Sug.
Pow. 578 ; Tomkym v. Blanc, 28 B. 422 ; Prescoft v. Edmunds,
4L. J. Ch. 0. S. 111).
If the donee of a power appoints in due form, without re- Revocation
p .... 1 • i. r i-u "^f absolute
serving any power oi revocation, to A. an object oi the power, appointment,
and afterwards purports to revoke that appointment, or if lie ^"'jQ^t^gl^
has reserved a power of revocation, but the original power lias
been by some means extinguished, and he purports nevertheless
to exercise it— in either case, if by the same instrument ho gives
benefits to the original appointee, the latter will be put to liis
election. In Cooper v. Cooper (6 Ch. 15), Mrs. C. had a power
of appointment among her children to be exercised before a cer-
tain period. Before that period she made a valid appointment
and reserved a power of revocation. By her will, which did not
come into operation until after the period during which her
power existed, and was therefore an invalid execution of it, she
purported to make a different disposition of the property subject
to the power, and at tlie same time gave benefits to the original
appointees. It was held that the latter were put to their elec-
tion, and that the next of kin of one of them, who was dead,
were also bound to elect. And this was affirmed in the House
of Lords (L. E. 7 H. L. 53 ; and see Pickersgill v. Rodger, 5
Ch. D. 163).
If, prior to the Act 37 & 38 Vict. c. 37, the donee of a non- Exclusive
exclusive power of appointment among a class (to whom the under\on-ex-
property was limited in default of appointment) appointed ex- elusive power,
clusively to one object, and by the same instrument confeiTed
benefits on the others, the latter were put to their election (Sug.
Pow. 579).
If the donee of a power improperly delegates it to another, Delegation.
and confers gifts by the same instrument on the persons en-
titled in default of appointment, they will be put to their
election {Ingram v. Ingram, cited 1 Ves. sen. 259),
The doctrine applies equally to the converse case of a revoca- Revocation
tion in excess of the power. In Coutts v. Acicorfh (9 Eq. 519), power rescrv-
380
A CONCISE TREATISE ON POWERS.
ed and gifts
to appointee.
Limits of
doctrine.
a fimd was vested in trustees in trust for A. for life with re-
mainders over, and there was reserved to the settlor a power of
revoking the remainders over. The settlor by his will pui'-
ported wholly to revoke the trusts of the settlement and gave
benefits to A. It was held that A. was put to his election ; (see,
too, Booker V. Booker, 34 W. E. 346).
3. But if the donee of the powder appoint the specific property
subject to the power to strangers, and then appoint, devise, and
bequeath all his property not thereinbefore specifically and
absolutely appointed or bequeathed, to an object of the power,
the latter will take the property subject to the power under the
residuary ajipointment, and no case of election will be raised,
although the residuary gift comprised proj^erty belonging to the
testator absolutely. The rule is that —
The doctrine of election is to be applied as
between a gift under one instrument and a claim
dehors that instrument and adverse to it, and is
not to be applied as between one clause in an
instrument and another clause in the same
instrument.
In WoUadon v. King (8 Eq. 165), A. had power under her
marriage settlement to appoint certain funds among the children
of the marriage. A. by her will in execution of this power ap-
pointed a portion of the funds to child B. for life, with remainder
(which was void), as he should by will apjioint, and made a
general residuary appointment of the settled fund, subject to all
other appointments made thereof, to her daughters, to whom she
gave benefits out of her own property by the same will. It was
held that the daughters were not put to their election.
"It would seem a very strange thing that in construing the
same instrument the Court, deahng with a clause in which a
fund is expressed to be given partly to A. and partly to B.,
should hold that the gift to A. being void, the testator's inten-
tion is that B. should take the whole ; and then, coming to
another clause in which another fund is given to B. and no
ELECTION. 381
mention of A. at all, it should hold that there is an implied con-
dition that B. shoidd give back part of that which it was the
testator's intention that he should take" (per V.-C. James, 8 Eq.
174, and see WalUnger v. Jf^al/iuf/er, 9 Eq. 301 ; and cf. Mlirren
V. lixflall, 1 J. & II. 1).
But there may be election between successive appointments Election
in the same instrument. Where successive irrevocable appoint- successive
ments are made in favour of the same person, the latter appoint- ^PP°"^ °^®° •
ment will be held to be in substitution for the former, if such
appears to be the intention of the appointor, and the person in
whose favour the appointments are made will be compelled to
elect between them. In Eughiitd v. Lavers (3 Eq. 63), A. having
a power of appointment among children over a fund, appointed
one-seventh to child E. on her marriage, and another one-seventh
to child L. on her marriage ; he afterwards executed a deed-poll,
by which, without noticing the previous appointments, he
gave one-sixth to E., another one-sixth to L., tlu-ee-sixths to
other children, and left one-sixth undisposed of. By his will
he disposed of so much of the fund as was not then already ap-
pointed in favom- of any of his cliildren. The Master of the
Rolls held that the deed-poll was in substitution for the former
appointments. Of course the donee of the power could not
interfere with these appointments, but when he executed the
deed-poll, he meant to give each of his daughters one-sixth not
in addition to, but in substitution for, the one-seventh he had
already given ; a case of election was accordingly raised. This
is, however, rather a question of construction than of election,
properly so called ; Re Kcon (3 L. II. Ir. 228) is to the same effect.
And all questions of election must depend on the state of cir- ^'o election
between gifts
cumstances existing at the testator s death {Lddij Cavan v. under a will
Pulteney, 2 Yes. jun. o44, 3 ibid. 384). In GriascU v. Sicinhoe JJbsSJuently
(7 Eq. 291), a testator who was entitled to a moiety of a fund, ^''^rivative^'' *
purported to bequeath the whole and to give one moiety thereof title.
to the husband of the lady who was really entitled to one moiety
in her own right. She survived the testator, and it was held
that the husband, who had become entitled as his wife's adminis-
trator to her moiety, was not bound to elect between that and
382 A CONCISE TREATISE ON POWERS.
the gift in tlie testator's will. This decision proceeded on the as-
sumption that the legatee's title to tlie property did not exist at
the death of the testator, but was a derivative title through the
title of another jierson who was the true owner at the death
{Cooper V. Cooper, G Ch. 15, 21).
No election if 4. There remains to be noticed an important exception to the
valid appoint- application of the doctrine of election to appointments under
STpropifcon. powers, which is thus stated by V.-C. Wood :
ditions added. _-j-^ .
VViicre there is an absolute appointment to an
object of the j^ower, followed by attemj^ts to
modify tlie interest so appointed in a manner
wliicli the law will not allow, the Court reads the
will as if all the passages in wliicli such attempts
arc made, were swept out of it for all intents and
purposes.
That is, not only so far as they attempt to regulate the -
quantum of interest to be enjoyed by the apjjointee in the settled
property, but also so far as they might otherwise have been
relied upon as raising a case of election ( Woolrideje v. Woolridge,
John. 63 ; Cancer v. Bowles, 2 R. & M. 304). And, a fortiori,
if the attempt to modify the appointee's interest be merely
precatory, no case for election will arise. BlacJcet v. Lamb
(14 B. 482) ; LangsJow v. Laugslow (21 B. 552) ; Moriarty v.
3Iarf/)i (3 Ir. Ch. R. 26), although mentioned with some ap-
proval by Lord St. Leonards (Pow. 582) cannot be taken to be
now law (5 Eq. 49) . So, too, it has been held that an exe-
cutory gift over to a stranger on the death of an appointee
is merely void, and raises no case of election {Bate v. Wilhtts,
37 L. T. 221) ; but see ante, p. 302. The nde applies
equally to cases where the testator, after appointing shares
absolutely and then directing them to be settled, adds an ex-
press forfeiture clause if no such settlement be made {King v.
King, 15 Ir. Ch. II. 479) ; but if he also gives legacies out of
his own property and directs that such legacies shall be forfeited
if the appointed shares be not settled, such a direction is valid
and effectual {ibid.).
ELECTION.
383
And the Court will regard with particular disfavour any
modifications or conditions attached to an appointment which
fail by transgressing the rules against perpetuity, or the like.
It is not for tlie Court to aid attempts of that nature either by
the application of the doctrine of election or otherwise ( WoUanton
V. Khuj, 8 Eq. 170 ; He Warren, 2G Ch. I). 208 ; lie llandeoek,
23 L. li. Ir. 134).
5. Notwithstanding the opinion of Lord St. Leonards to the ThediHap-
° ^ . pomted donee
contrary (Sug. Tow. 57G), it is clear that compensation, not is entitled to
forfeiture, is the right of the disappointed donee. See 1 Sw. no™SeitiIi-e!
433, n., where, after a review of the authorities, the following
conclusions are arrived at : — (i.) That in the event of election to
take against the instrument, Courts of Equity assume jurisdiction
to sequester the benefit intended for the refractory donee, in order
to secure compensation to those whom his election disappoints.
(ii.) That the overplus after compensation does not devolve as
undisposed of, but is restored to the donee, the pm-pose being
satisfied for which alone the Court controlled his legal right.
" The disappointed legatee may say to the devisee, * you are
not allowed by a Court of Equity to take away out of the testa-
trix's estate that which you would otherwise be entitled to, until
you have made good to me the benefit she intended for me.'
That means that no one can take the property which is claimed
under the will without making good the amount ; or in other
words, as between the devisees and legatees claiming under the
will, the disappointed legatees are entitled to sequester or keep
back from the other devisees or legatees the property so devised
and bequeathed until compensation is made. Thence arises the
doctrine of an equitable charge or right to realise out of that
property the sum required to make compensation " {per Jessel,
M. E., 5 Ch. D. 173). It follows from this that the equity
attaches to the estate. In Picker.^fjiU v. Rocdjer (5 Ch. D. 163),
the son of a testatrix predeceased her, but his estate took the
benefit of the gifts in her will by vii'tue of sect. 33 of the Wills
Act. Her will was so framed that a case of election would have
been raised against the son if ho had survived her ; and it was
held that the disappointed legatees were entitled to require the
384
A CONCISE TREATISE ON POWERS.
Testator must
give property
of his own.
out of which
compensation
may be made.
No election
between two
appointments
under limited
powers.
son's estate to make good the benefits intended for them by the
will. There was no longer any room for election, as the son
with whom the power of election lay was dead ; but the rights
of the parties were determined on the footing that the son's
estate took under the will [ihhl., p. 174 ; and see Schroder v.
Schroder, Kay, 578; Douglas v. Douglas, 12 Eq. 617). The
right to compensation is not lost by the death of the person who
has elected, but may be enforced against his estate {Rogers v.
Jones, 3 Ch. D. 688).
Inasmuch as the doctrine of election depends on compensa-
tion, it follows that the donee of a limited power, who appoints
to strangers, must confer benefits on the persons entitled in de-
fault of appointment out of property absolutely his own. " The
doctrine of election cannot apply where there is no other subject
but that to be appointed. It never can be ajiplied but where,
if an election is made contrary to the will, the interest that
would pass by the will can be laid hold of to compensate for
what is taken away ; therefore in all cases there must be some
free disposable property given to the person which can be made
a compensation for what the testator takes away " {Brisfow v.
Ward, 2 Ves. jun. 336, 350 ; Armstrong v. Li/nn, 9 I. R. Eq.
186). No case of election arises if the property out of which
compensation is to be given is made inalienable by the instru-
ment which is said to raise the case of election {Smith v. Lucas,
18 Ch. D. 531 ; Re Vardon, 31 Ch. D. 275 ; Be Wheatley, 27
Ch. D. 606 ; Hamilton v. Hamilton, (1892) 1 Ch. 396) ; or, if the
person from whom compensation is claimed elects to take under
the instrument, but has no assignable interest thereunder {Re
Lord Chesham, 31 Ch. D. 466).
In Re Fouier (27 B. 362), a testator had two distinct ex-
clusive powers, one over real estate the objects of which were
his children and grandchildren, the other over personalty the
objects of which were his children only. He appointed the
realty among some of his children, and the personalty among
some of the children and a grandchild : it was held that no case
of election was raised in favour of the grandchild.
In Re Aplin (13 W. R. 1062), a testator had also two distinct
ELECTION. 385
powers over two distinct funds ; the objects of both powers were
bis children, and the fund was given to tliem in default of ap-
pointment ; but only one of the powers authorized an exclusive
appointment. The testator had five children, and he exercised
both powers by his will, appointing under the exclusive power
to child A., and under the non-exclusive power to childi'cn 13.
and C. The latter appointment was invalid, and A. was en-
titled to a share of the fund as in default of appointment. It
was hold that no case of election was raised against him.
The phrase " free disposable property," although now a classical
term, is not quite free from ambiguity ; does it mean necessarily
property which belonged to the testator at his death and nothing
else ? If so, supposing that a testator gave A.'s property to
B., and B.'s property to C, and A. elected to take under the
will, B. could take the property devised to him and refuse to
give effect to the gift to C. In such a case, does A.'s property
become, for the piu'pose of election, part of the testator's " free
disposable property " as soon as A. elects to take under the will ?
6. Property of all sorts, freehold and copyhold, real and The doctrine
personal, is subject to the doctrine of election, and that whether property of
the interests are immediate, remote, contingent, of value, or not ^ ""^ '
of value {Wilson v. Toirns/ioid, 2 Ves. jun. G93).
The doctrine also applies to the interests of persons under And to all
disability, as infants and married women (Sug. Pow. 577). In
cases of infancy the period of election is either deferred until
the infant attains twenty-one {Strcatjicld v. Sfreafjiekl, 1 W. &
T. L. C.) ; or an iuquuy is directed as to what would be for
the infant's benefit {Gretfon v. Ilaward, 1 Sw. 413, n. (c) ; Re
Lord Che>iham, 31 Ch. D. 472). And an order has been made in
some instances for an infant to elect without any reference to
chambers {Lamh v. Lamb, 5 "W. R. 772 ; Rmhout v. EusJwut,
C Bro. P. C. 89; lllunt V. Lack, 26 L. J. Ch. 148). As a
general rule, in cases of disability by reason of coverture, an
inquiry was directed as to what is for the benefit of the married
woman (1 Sw. 413, n. {c) ; see Cooper v. Cooper, L. R. 7 H. L.
53).
Prior to 20 & 21 Yict. c. 57, a married woman coidd not elect
F. c c
386
A CONCISE TREATISE ON POWERS.
Effect of
election.
Election by-
tenant for
life.
to relinquish a reversionary interest in personalty ( WilUnms v.
Mai/uc, 1 I.E. Eq. 519; disapproving of W((ll y. Wall, 15 Sim.
513). It is submitted that, since the Married Women's Pro-
perty Act, 1882, as regards property of which the married
woman can dispose under that Act, she is now to he regarded as
a feme sole : hut questions of difficulty may still arise, sucli as
are pointed out by the M. R. in Smith v. Lucas (18 Ch. D. 531).
At p. 544 he says, " Then there arises another question: namely,
can the wife during coverture elect ? I think she can. I think
that point is settled b}^ Barrow v. Barrow (4 K. & J. 409), and
one or two other cases. But can she during coverture elect so
as to make herself bound by the contract, and deprive herself of
the power of saying it shall not affect particular property,
although that property is not in possession, and, so far as she is
concerned, not in existence ? In other words, can she, during
the coverture, without the assistance of a court of equity, elect
to this extent, that she will make the covenant binding on pro-
pert}^ thereafter acquired, although at the time she has no
property at all ? I am not aware of any case deciding the
exact point ; but looking at the current of authority, and not
forgetting the recent case of Pihe v. Fitzcjihbon (17 Ch. D. 454),
I think she cannot "; (see this passage explained by Pearson, J.,
28 Ch. D. 424). It will be observed that the case suggested by
Sir Gr. Jessel may still arise, because the Act does not aj^ply
where the married woman has no free separate property at all at
the time of contracting; (see ante, p. 265; and lie Qacade, 54
L. J. Ch. 786).
7. If the person who elects be absolutely entitled, his election
of com'se binds all who claim under him ; but if he has only a
limited interest, his election will not bind the rights of those
entitled in remainder [Ward v. Baiujh, 4 Yes. 623), and each of
such remaindermen has a separate right of election, although
Lord Northington was of opinion that the rule of election was
to be confined to a plain and simple devise of the inheritance,
and could not be extended to limitations {Forrester v. Cotten,
Ambl. 388). This view, however, is not sanctioned by subse-
quent authorities (1 Sw. 408, n. ; Sug. Pow. 578).
ELECTION.
387
In Fijtche v. Fyfche (7 Eq. 494), a testator made several
bequests to his wife, including some prr)perty to wliieli she was
entitled in her own rig-lit. The wife survived and received the
benefits given by the will, but never elected, and died intestate
leaving four next of kin, three of whom elected to take under
the will, and tlie fourth, who was the widow's heir and adminis-
trator, against it. It was held that each of the next of kin liad
a separate right of election, and that neither the election of the
majority, nor that of the heir and administrator, bound the
others.
Election by a married woman binds both her real and personal Election
... by married
estate in the hands of her heirs and representatives [Ardcsoijc v. woman.
Bciuii'f, 2 Dick. 4G3), and she may elect without deed acknow-
ledged {Barrow v. Bar row, 4 K. & J. 409). Her Imsband also
is bound by her election in respect of personalty and realty held
in trust for her ; but he is not bound in respect of her legal
estates in realty, or in respect of her personalty which vests in
him in her right, for the riglit of election is an equitable doctrine
and does not bind legal estates. It has been said (2 Ves. jun.
560) that " the election is hers and her husband's ; a married
woman may forfeit a conditional gift ; the estate is in her ; he
takes in her right. If they disagree, it must be considered by
the Court what is most for her interest ; if he is considered as
having an estate, that must rise and fall with hers ; it is the
most favourable supposition for him" {per C. J. De Grey).
However, in Brodic v. Barrij (2 V. & B. 127), the heiress-at-law
of heritable property in Scotland was also legatee of personal
property in England. Her ancestor devised his real estates in
Scotland away from her ; it was held that, although she was put
to her election, tlie interest of her husband in his marital right
could not be affected. This was admitted by Sii- S. Eomilly,
who was counsel for the plaintiff.
In Gri(jfp v. GiUon (1 Eq. 685), by the antenuptial settlement
of A., certain real estate was limited (after the death of A. and
his wife) to the use of all the children of the marriage as tenants
in common in tail ; and by the same settlement personal property
was vested in trustees on trust for the same persons. A. by his
c c 2
388
A CONCISE TREATISE ON POWERS.
'WTiat is
necessary to
raise a case
of election.
vriW gave 1,000/. per aumim to B., one of liis daughters, for her
separate use for life, and declared that she should accept it in
full for any share or interest that she might take under his mar-
riage settlement, B. was a married woman, and her husband
was insolvent ; she elected, with her husband's concurrence, to
take under the will and renounce all benefits under the settle-
ment. It was held that, inasmuch as the personal estate was
standing in the name of the trustees, and the fund was not in
the wife's possession or in her husband's in her right, the interest
of the husband and his official assignee failed entirely ; for the
wife's interest called on her to claim the property. But it was
also held that her election could not defeat the interest of the
oflficial assignee in the real estate, but she was bound to give
compensation, in electing against the settlement, to the extent
of the realty which the assignee could have taken.
8. In order to raise a case of election, the testator must pur-
port to dispose of property not his own {Forrester v. Coften,
Amb. 388). This requirement would be fulfilled by the donee
of a limited power by an appointment to a stranger. It makes
no difference whether he knew the property to be another's or
supposed it to be his own, so long as the intention to dispose of
the property is clear {WJiktkr v. Webster, 2 Yes. jun. 367, 370).
On the same prineij)le, it is immaterial whether the donee of a
limited power exj»ressly appoint to strangers with the full know-
ledge that his power is limited, or whether he erroneously sup-
pose that his power is a general one, or comprises the persons to
whom he appoints.
It is a rule in the construction of wills that a general devise
or bequest does not include property which did not belong to the
testator, in order to raise a case of election (I W. & T. L. C. 6th
ed., 409 et seq., and cases there cited ; Sijnge v. S//u[/e, 9 Ch. 128 ;
Pickersffill Y. Iiod[/er, 5 Ch. D. 163). It follows, therefore, that
although a general devise or bequest since the Wills Act executes
general powers, such a devise or bequest would not be taken to
operate as an execution of a limited power in order to raise a case
of election. And parol evidence is not admissible to show that
the testator was under a mistaken apprehension that certain
ELECTION. 389
property belonged to hira, or that his power was general, and
intended to include sucli property, or the property subject to
such power, in his residuary gift {iltid. 413; Sug. Pow. 597). It is
perhaps doubtful whether general words of gift and appointment
would bo held to execute a limited power in favour of a stranger
in order to raise a case of election, if the testator had no other
power. A limited power may be sufficiently referred to by
general words of appointment, if the donee has no other power
and the appointee is an object of the power {Re Teape, 16 Eq.
442, and (otte, p. 183) ; but a mere reference to all powers in
general terms seems too slight evidence of intention, if the
appointee be a stranger.
9. The difficulty of sustaining a case of election is always Where testa-
much greater where the testator has a partial interest in the ^[grSt^^^^*^
property dealt A\dth than where he purports to devise an estate
in which he has no interest at all. "Where the testator has some
interest, the Court will lean as far as possible to a construction
which would make him deal only with that to which he was
entitled {Ilowclh v. Jenkins, 2 J. & H. 706, 713 ; Wintour v.
Clifton, 8 D. M. & G-. 649 ; Grissell v. Sirin/ioe, 7 Eq. 291 ;
Booker v. Booker, 34 ^Y. E. 346 ; Noel v. JYoc/, 4 Dr. 624).
In Tanner v. EhcortJnj (4 B. 487), a father had a power of
appointing leaseholds among his children, who were entitled
thereto in default of appointment. The father renewed the
leases in his own name, and by his will confirmed the settlement
containing the power, and gave his freeholds and leaseholds to
his son, and a legacy to his daughters. He had other lease-
holds besides those subject to the power. It was held, that the
latter did not pass by the will, and that no case of election arose.
In Henry v. Henry (6 I. R. Eq. 2So), an estate caUed
Dolphin's Barn was settled on trust for A.'s wife for life for her
separate use, with remainder for the children of the marriage as
the wife should appoint, and in default of appointment, for the
children equally. By the death of one of his seven children, A.
became entitled to one-seventh of the premises. By his will he
gave " his property in Dolphin's Barn." This was held to mean
merely his one-seventh, and not to show an intention to dispose
of property not his own so as to raise a case of election ; (and see
390 A CONCISE TREATISE ON POWERS.
Padhimj V. Clark, 2 Mac. & G. 298 ; Fifz.simoHS v. Fifzsimons,
28 B. 417; ]ie Bidwell, 32 L. J. (li. 71). But in Wilkiuwn v.
Dent (6 Ch. 339), where a testatrix was in possession of the
entirety of an estate A., but was owner of only one moiety, and
was mortgagee in possession of the other, a gift of " all and
singular the mines of A., formerly the estate of S.," was held to
operate on the whole estate, and not merely on her own moiety;
for wills are to be construed reasonably, although parties are
thereby put to their election.
10. No person can be made to elect without clear knowledge
of the state of the properties {WJiiatler v. Wch-ster, 2 Ves. jun.
371), and if election be made in ignorance it will not be binding
{Pusey V. Desboiivrir, 3 P. W. 315). But election need not
be express ; it may be implied : but the acts from which the
election is to be implied must be done with a full knowledge of
the elector's rights, and with the intention of electing {Strat-
ford V. PourN., 1 B. & B. 1). The rule is thus stated by Lord
Chelmsford.
Requisites to In order that a person who is put to Ins election
make a bind-
ing election. sliould be concludecl by it, two things are neces-
sary. First, a full knowledge of the nature of the
inconsistent rights and of the necessity of electing
between them. Second, an intention to elect,
manifested either expressly or by acts which
imply choice and acquiescence (^Spread v. Morgan,
11 IT. L. C. 615).
The doctrine of election is a rule not of law, but of equity ;
the knowledge of it is therefore not to be imputed as a matter of
legal obligation {ibid.). It differs in this respect from the right
of an infant to repudiate a contract on attaining twenty-one,
which is a legal right {Carter v. SiWer, (1892) 2 Ch. 278).
Knowledge of ihe person to elect is entitled to full particulars of the estates
between which his choice is to be made, and the Court of
Chancery will in almost all, if not in all, cases entertain a suit
by a person put to election to ascertain the value of such estates
ELECTION. '191
{Bufrickey. Broarfl/io'sf, 1 Ves. jun. 171 ; Wilson \. T/ionih>ir//, 10
Ch, 248). *' Tliero is in almost all cases jurisdiction in equity
to compel a final election, so as to quiet tlie title of those
interested in the objects of which one is to be chosen ; and the
Court, as a condition of compelling such final election, secures to
the person compelled to make it all the information necessary to
guide him in doing so. It is also generally, though perliaps not
universally, true that a person for whose benefit conditions will
be imposed by the Court before it makes an order against him,
can entitle himself to the benefit of the conditions by filing a bill
and offering by it to submit to the order " {per V.-C. Wickens,
Dourjhis V. Doiujhis, 12 Eq. 617, 637).
But although, before an heir can be put to his election, he is Evidence of
entitled to know everything which concerns the situation and
value of the property in reference to which he may be required
to make the election, it is not necessary, when an heir has
deliberately confirmed a devise of lands, which without his con-
firmation would be invalid, to adduce distinct evidence of his
knowledge of his rights, in order to bind his representatives
{Dewar v. Maithoid, 2 Eq. 834).
Election may be implied from the state of circumstances. Election may
. „ -be implied.
" From a long course of dealing, from a series of acts, the
Court is at liberty, as an inference of fact, to conclude that the
party called upon to elect knew his rights, knew tlie value of
both, estates, and knew the rule of equity that he was bound to
elect, and had, with that full knowledge, made his choice, with
the intention of making it and of electing between the two
estates. To justify the Court, however, in arriving at that con-
clusion, there must bo a series of acts or dealings, consistent only
with the knowledge which I have already mentioned, and with
the deliberate intention to elect, or at least a series of acts or
dealings that preponderates so strongly in the mind of the Court,
that no person could come reasonably to any other conclusion ;
and the onus of proof must rest always upon the party who
alleges that the knowledge existed, and that the deliberate choice
•was made" {Sicect man v. Sweet man, Ir. Iv. 2 Eq. 141, 153, ;;<'/•
Y.-C. Chatterton).
•392
A CONCISE TREATISE ON POWERS.
Mere lapse
of time not
enousrh.
Presumption
of election.
It is impossible to lay down any exact rule as to the acts from
which election will be presumed. If a party being bound to
elect between two properties, not being called upon so to elect,
continues in the receipt of the rents and profits of both, such
receipt affording no proof of preference cannot be an election to
take one and reject the other {Padbiu'i/ v. Clark, 2 Mac. &
G. 298).
Xo absolute inference can be drawn from mere length of time ;
but it must be from circumstances showing the intent of the party ;
receipt of rents or of personalty officially will not bind {Butricke v.
Broadhnrst, 3 Bro. C. 0. 88 ; Sojncith v. Maugham, 30 B. 235).
In Morcjan v. Edwards (13 Price, 782 ; 1 Bl. N.S. 401) it was
held that it must be shown, in order to make mere acquiescence
binding, that injury would now arise to third persons from
rescinding it, and that it would be impossible to jjlace them in
other than a worse condition than they would have been in if the
party had elected earlier : and secondly, that the elector knew
that he had a right to elect ; that is, that he knew not only the
existence of the instrument, but the consequences of it on his
rights. In Brice v. Bricc (2 Moll. 21), the Lord Chancellor
said : " There is no time limiting the right to elect, for all the
circumstances of the case are to be taken together, and if they
do not bring the case within Sir W. Grrant's distinctions (in
Morgan v. Edwards), the right of election continues, notwith-
standing almost any given lapse of time " ; (and see Dillon v.
Parhr, 1 CI. & Fin. 303 ; Worthington v. Wiginton, 20 B. 67 ;
Briscoe v. Briscoe, 1 J. & L. 334).
If the question arises between the heir and the personal repre-
sentatives of the person entitled to elect, it seems that the Court
will not presume an election against the will unless it be mani-
festly to the donee's advantage. In Harris v. Watkins (2 K. &
J. 473), a testator devised his residuary real estate in lieu and
discharge of all debts due to the devisee. The devisee died
intestate three days after the testator. It was held that, as it
was not manifestly for the disadvantage of the devisee to retain
the devised estate, the Court could not presume a disclaimer, and
that, consequently, the heir was entitled to the estate, and the
ELECTION. 393
debts due to the devisee and claimed by the administrator were
discharged; (and see Crohor v. 3Iartin, 1 Bl. N.S. 573 ; and Lord
St. Leonards' comments thereon, Prop. IL L. 101).
11. It may here bo added, that an heir under the old law was Election
put to liis election, where an estate was devised to him, although
by the rule of law the devise was inoperative, and he took by
descent (Sug. Pow. 577) ; but now, by 3 & 4 Will. 4, c. 106,
8. 3, the heir takes as devisee.
But an English heir is not to bo put to his election by an
unattested will or codicil ; nor by a will which is void by reason
of the testator's incapacity, or which was not properly executed
to pass real estate {Ganlincr v. Fell, 1 J. & AV. 22 ; Ex parte
Lord Ilchenter, 7 Ves. 372 ; Hearle v. Greenbank, 3 Atk. 715),
unless the gift to him be by way of express condition {Boughton
V. Boughton, 2 Ves. sen. 12).
But this doctrine did not apply to customary or copyhold
heirs of lands not surrendered to the use of the will ; nor to
Scotch or colonial hoirs {Deivar v. Maitland, 2 Eq. 834 ; Brodie v.
Barrg, 2 V. & B. 127; Orrell v. Orrrll, 6 Ch. 302).
In the above-mentioned cases the English heir was not put to
his election because there was a disability in the person of the
testator (2 Ves. sen. 14); his will purporting to dispose of the
property could not be read at all.
So, an appointment by will made dui'ing coverture by a
married woman, in execution of a power to appoint " in case she
should die in her husband's lifetime," will be absolutely void, if
she sur^-ive him and die without republishing her vd\l ; and no
case of election will be raised [Blaiklocl: v. Grindlc, 7 Eq. 215),
for the incapacity was hers ; (and see liic/i v. Covkcll, 9 Ves. 369,
381).
But it does not seem to have been decided what woidd be the
effect of a devise or appointment, if the donee were incapable of
accepting from the testator that which the testator purports to
give, by reason of some law or rule of public policy ; e. g.,
whether a man would be put to his election if his lands were
devised by another person, before the Mortmain Act, 1891, to a
charity, or to an alien before the Naturalization Act, 1870, and
394
A CONCISE TREATISE ON POWERS.
Qualified
election.
Ademption
and satis-
faction.
Presumption
of law in
each case.
a legacy was at the same time given to liim. On the one hand,
it might be contended that the Court would not aid an attempt
at a violation of the law (8 Eq. 175 ; and cf. Arnold y. C/iapnuin,
1 Yes. sen. 108; Poor v. Mia/, 6 Mad. 32 ; Henchman v. Att.-
Gen., 3 M. & K. 485). On the other hand, it might be contended
that, as regards a charity at any rate, it is not incapable of taking
from the living legatee, and that as he can fulfil the testator's
wish by a deed duly enrolled, he must do so, or compensate out
of his legacy.
12. There are cases in which special directions are given as to
election, by which it may be confined to particular gifts, so as
to prevent election as to other parts of the will.
In Hast V. Cook (2 Yes. sen. 30), a testator devised property
belonging to his eldest son to his second son : and amongst other
gifts to his eldest son, he gave him a piece of property which he
stated to be in lieu of the property which he purported to take
away from the eldest son. In such a case, the eldest son is
merely put to his choice between those two bits of property. It
is a case where the ordinary doctrine of election is excluded by
an apparent expression of intention that only one of the gifts to
the eldest son is conditional on his giving up what the testator
purports to take away from him ; (see the case explained, Ch.
341).
13. The doctrine of ademption and satisfaction is connected
with that of election, and should not be entirely omitted, although
the cases with reference to powers are rare : but it is not pro-
posed to consider here the general law on the subject, for which
reference may be made to Kv 2>f'i'fc Pye (2 W. & T. L. C).
The difference between ademption and satisfaction is, that in
ademption a benefit given by a previous will is taken away by
a subsequent gift or settlement. In satisfaction, a pre-existing
portion or debt is satisfied by a subsequent gift, usually, but not
necessarily, by will (see Chichester v. Coventry, L. R. 2 II. L. 71).
The question is one of intention in each case [ihid^ ; and if there
is an express declaration of intention, which is admissible, no
question can arise. If there is no sucli express declaration, there
is always a strong presumption in law in favour of the ademp-
ELECTION. 395
tion or satisfaction of portions by subsequent gifts made by a
parent or a person i)i loco paniifis ; "upon an artificial notion
and a sort of feeling upon what is called a leaning against
double portions." There is also a presumption that a debt is
meant to be satisfied by a legacy of larger or equal amount, on
the maxim Drhitor )io)i pre-sHmitiir dondvv, but the Courts regard
this maxim with disfavour, and hold that a debt is not satisfied
1^0 tunto by a legacy of less amount.
14. The cases in which the question of satisfaction by advances Three classes
made by parents usually arises may be divided into three, viz. :
(i.) where the parent is under a personal liability (either under
a covenant, or as having received money affected with a trust)
to make a settlement for the benefit of his children, or has an
estate of his own not settled, but charged with a sum, for the
benefit of his children ; (ii.) where a sum for the benefit of
children is charged on an estate not the estate of the parent, but
subject to a settlement ; (iii.) where land or money is limited to
the use of or held upon trust for children as the parent shall
appoint {Lee v. llewl^ 1 K. & J. 630).
15. In all these cases, the first question is, was the advance Twoquestious
intended to be a satisfaction ? and if that is answered in the general rules
afiirmative, the further question arises, for whose benefit was thereto ^
the satisfaction intended to operate ? In answering these ques-
tions, the follomng rules must be borne in mind.
Satisfaction on the assumption of tlio discharge
of a debt can only arise where the person who
makes the advance is himself the person bound to
pay, or is the owner of the estate charged with
the p)ayment.
In Hoherh v. BixaU (Eq. Ca. Abr. 668, pi. 19) A. covenanted
on his marriage that his estate should be charged wit li 1,000/.
for younger children, and his wife's estate was at the .'^ame time
settled, with a power for A. and his wife and the sm-vivor of
them to appoint it among their younger children. A. survived
his wife, and by will gave his daughter (the only younger child)
396
A CONCISE TREATISE ON POWERS.
3,000/. in full satisfaction of the 1,000/., and he charged the
3,000/. on the estate brought into settlement by his wife. This
was held good as an appointment under the power, but not to be
a discharge of the covenant. Lord Ilardwicke said, " Where a
gift is to discharge a former debt, something should move from
the giver, but here the whole is to arise out of his wife's estate,
and, therefore, to satisfy the father's covenant, this declaration
is entirely void." It was held that the daughter should have
3,000/. and no more, that 2,000/. thereof should be raised out
of the estate subject to the power, and the remaining 1,000/.
should be paid out of the father's estate in discharge of his
covenant.
Samuel \. Ward (22 Beav. 347) is to the same effect. In that
case, Lord Romilly says, " Suppose the case of an nncle settling
certain sums on his nephews, it would be impossible to maintain
that their father, by advancing the amounts without any under-
standing, would become entitled to stand in the place of his
children under the settlement."
16. Satisfaction on the ground of the leaning against
double j)ortions can only arise where both por-
tions issue from one and the same person
[Walpole V. Lord Conway, Barnard. 156, 157;
Douglas v. Willes, 7 Hare, 328).
In Sir W. Davie's case (5 Vin. Abr. 292, pi. 38), an
estate in Somersetshire, of which Sir W. Davie's first wife
was tenant in tail, was settled, the uses being declared to them
and the issue of their body, remainder to Sir William and his
heirs : they had a daughter, Mary, and the feme died. On the
marriage there were articles that Sir William should leave his
daughter 2,500/. Sir William married again and had several
daughters. By deed executed in his lifetime he gave the
Somersetshire estate to Mary and her heirs, and by deed he
charged his reversionary interest in lands in Devon with 5,000/.
apiece for his daughters. After his death Mary claimed the
2,500/., and Lord Keeper Harcoui't decreed it to her with
ELECTION. 397
interest at 5/. per cent, from Sir William's death : for that the
Somersetshire estate could not be an equivalent, because it moved
from her mother, and was the condition of the agreement for
the 2,500/.
It seems that there is no objection to the parent becoming the Parent may-
purchaser of his children's shares (Sug. Pow. 634 ; Goner v. children's
Goicer, 1 Cox, 53 ; Samuel v. Ward, 22 Beav. 347 ; Noel v. Lord Po'-tiona.
WalaiiKj/iam, 2 S. & S. 99). But this must be taken subject to
the rules qualifying the powers of parents to bargain with their
children ; (see Cuninghame v. Ansfrufher, L. II. 2 S. & 1). 223,
post, p. 407; and 2 Ves. jun. 714).
17. It is impossible to lay down any general rules for the Presumption
decision of cases which are mere questions of intention. But class of cases,
the presumption of law in each case may be stated as follows.
In the first class of cases above mentioned, viz., where the
parent is under a personal liability or has an estate of his own
charged with a sum for the benefit of his children, and makes an
advance to a child, the presumption is that the parent's debt is
satisfied or his estate released by the advance.
In Pift v. Jackson (2 Bro. C. C. 51 ; S. C. sub nom. Suiifh v.
Lord Camelford, 2 Ves. jun. 098), a sum of 20,000/., part of
which was the wife's portion, and part a sum which the husband
had agreed to advance on the marriage, was to be laid out in
the purchase of lands to be settled (subject to successive life
estates in tlie husband and ^\\ic) to the use of the children of
the marriage, as the father should by deed or will appoint ; and
in default, to the use of the childi-en in tail. There were two
children, Mary, Mrs. Smith, and Ann, Lady Camelford. The
father received the whole money, and was a debtor for it. He
bought an estate in Norfolk. By his will in 1768 he gave his
children 10,000/. and 30,000/., the former sum being half the
amount held in trust to be settled, the latter being a pure legacy.
In 1771, Ann man'ied Lord Camelford, and licr father gave her
a portion of 40,000/. Consols. A montli after the marriage he
made a codicil reciting his will, the marriage of Ann and the
portion, and revoked the legacy of 40,000/. In his will he
had stated that it was not his intention that the purchase of the
398 A CONCISE TREATISE ON POWERS.
estate in Norfolk should be considered as an investment of tlie
20,000/., and be treated bimself as a debtor for that amount.
In bis codicil be said tbat baving provided for bis daughter be
took away tlie legacy of 40,000/., /. c, tbe 10,000/. and tbe
30,000/. Lord Kenyon tbougbt tbat, on tbe facts before bim,
tbe testator was at liberty to say tbat tbe purchase was not to
be considered an investment of the trust fund, and counsel
conceded tbat the father by advancing tbe 40,000/. Consols bad
satisfied Ann's share of tbe 20,000/. Tbe case then came before
Lord Loughborough on a bill of review, and on tbe further
facts before bim, he held tbat tbe father was not at liberty to
say tbat the trust fund had not been laid out in tbe purchase of
the estate ; but be proceeded : " Upon tbe whole train of autho-
rities on the bead of satisfaction Mr. Wilkinson has satisfied
all the interest tbat Lady Oamelford could as a creditor set up
in opposition to any act of bis will with regard to her provision
under tbe marriage settlement. ... At bis death bis will as
to Mrs. Smith was no appointment of the land. As to Lady
Camelford it operated absolutely as a bar to any claim tbat
could be set up by her, as entitled as a creditor to any equitable
interest, for be, by satisfying all she is entitled to, stands in her
place" (2 Ves. jun. 713, 714). See i^^?;- Wood V.-C, 1 K. &
J. 632 — 4, where be says tbat tbe ease is an authority, so far
as it was before Lord Kenyon, tbat the debt was satisfied by tbe
payment made by tbe testator in bis lifetime ; and tbat Lord
Loughborough seemed to treat it as a quasi-debt, although be
relied also on tbe evidence of the testator's intention derived
from tbe codicil.
Tbe case of Danson v. Buke of Clcrehind (West. Rep. t. Hard-
wicke, 105) seems to have proceeded on the same grounds. In
that case the Duke bad 3,000/. and 1,000/. per annum granted
to him and bis heirs male out of tbe hereditary excise, and be
had power to appoint the premises to trustees to raise portions
for younger cliildren. He appointed part of tbe said sums to
trustees for a term of twenty-one years to raise 8,000/. for tbe
marriage portion of bis daughter Grace, provided she married
with consent, and subject thereto for his other younger children.
ELECTION. 399
On the subsequent marriage of Grace he gave her 20,000/. ; and
the question arose whether Grace took both the 8,000/. and the
20,000/.; or if not, wliether the 8,000/. went to the other
younger children, or to the heir, or to the personal representative
of the duke. Tlio Lord Chancellor decided in favour of the
personal representative.
It does not appear from the report on what ground the Arc the real
personal representative of the duke was held entitled to the rcpresenta-
8,000/. in preference to the heir. Probably the entail was a ^'^''^^ ?^ *^^^°
^ ^ parent en-
parliamentary entail, reducing each tenant to the position of a titled to bene-
tenant for life. If the parent is a mere debtor, his personal paid off by
estate is released by the fulfilment of his obligation, and no ^™"
question between his lu-ir and personal representative arises ;
but where a man is tenant in fee or in tail of land subject to a
charge, and he i^ays off that charge, such payment is pruna
facie presumed to bo made in favour of and in order to exone-
rate the estate [Earl of BiichiiKjlKDn v. Iluhart, 3 Sw. 186, 199).
If he is merely tenant for life or tenant in tail without power
of barring the entail, the payment is 2)rii)m facie presumed to
be made for his own benefit {Jones v. 3Iorgan, 1 B. C. C. 206 ;
S/ircu:sbar// v. ^hrcivslari/, 1 Yos. juu. 227 ; Lindsaij v. Lord
Wicklon; 7 I. K. Eq. 192, 206 ; Eu- parte Diyhij, Jac. 23-3).
In the second class of cases above mentioned, namely, where Presumption
a sum for the benefit of children is charged on an estate not second class
the estate of the parent, but subject to a settlement (as where ^ ^'^'''^^•
portions are to be raised for children and subject thereto, the
estate is limited in strict settlement), three questions may arise,
namely : (i) whether the advance operates for the benefit of
the estate ; (ii) wlictlier the parent has purchased the share of
the child advanced ; or (iii) whether the fund is discharged
from the claim of the child advanced for the benefit of the
other children entitled thereto. The presumption of laAV in
cases of this class is that the advance operates for the benefit
of the childi-en interested in the portion fund, and not for the
benefit of the person making the advance, or of the estate {Ford
v. Ti/nte, 2 11. & M. 324).
If, however, the settlement contains an express provision that Where there
400
A CONCISE TREATISE ON POWERS.
is an advance- advances made by the parent in liis lifetime are to be taken in
satisfaction of the portions provided by the settlement, any
advance made by the parent will be prima facie presumed to be
for the benefit of the estate. In Noel v. Lord iralsiiuj/iam (2
S. & S. 99), the parent was tenant for life of certain real estates,
with power to appoint the shares in Avhich his younger children
were to take a sum to be raised for their portions. One ques-
tion in the suit was as to the share in the fund of a daughter,
Lady Edward O'Bryen. Her father, by his will dated 1809,
appointed the fund to his daughters (except Lady Walsingham,
w^hom he had then provided for) equally. In 1815, on her mar-
riage. Lady Edward O'Bryen, in consideration of 10,000/. secured
to her by her father, released to him and his heirs all her right,
title, and interest in the hereditaments comprised in the settle-
ment, so that neither she nor those claiming under her should
have any further interest in the property. By the terms of the
original settlement, any advance made by the father in his life-
time was to be taken in or towards satisfaction of the portion
provided by the settlement for a younger child, unless the
parent should declare the contrary. Sir John Leach said : —
" I apprehend that the true construction of this provision is,
that if the father make an advance to an object of the settle-
ment without any declaration of intention in respect to it, the
advance operates to the exoneration of the estate charged with
the portion, but that the father is at liberty to declare that the
child advanced shall, notwithstanding, receive its full portion,
or is at liberty to consider himself ^^ro tarifo the purchaser of the
portion, and to declare in effect that it shall remain a charge
upon the estate for his benefit."
In the third class of cases above mentioned, namely, where
land or money is limited to the use of or held upon trust for
children as the parent shall appoint, the presumption is that the
parent, in making an advance to one child, intended to clear the
property of the claim of that child, for the benefit of his other
chiklren, not of himself, and so as to let such other children
have the benefit of the advanced child's share.
In Lee v. Head (1 K. & J. 620), lands were settled to the use
Presumption
of law in
third clans
of cases.
ELECTION. 401
of the children of the marriage of A. and B. (subject to succes-
sive life estates to A. and B.) as A. should appoint, and in
default, as B., if she survived A., should appoint. There were
two children, a son and a daughter, and on the marriage of the
latter, A. advanced lier a sum exceeding in value her moiety of
the lands; and by the settlement executed previously to her
marriage it was declared that such sum was advanced and
accej)ted in lieu and satisfaction of all sums of money and
interests to which the daughter then was, or at any time there-
after should be, entitled under lier parents' settlement. Yice-
Chancellor "Wood said there was a certain analogy between
the case before him and cases of purchases for children. He
examined the authorities on the orphanage customs of London,
and held that tlie daughter's share was satisfied, and there
being only two childi-en, the case of Boi/le v. B. of PdcrhoroHfjh
(1 Yes. jun. 299) applied, and the son took the whole.
In FoUiCs V. Western (9 Yes. 456) the facts were very similar
to those in Lee v. Head, a money fund being settled for the
benefit of younger children as the parents or the survivor
should appoint, and in default for the children equally, and a
settlement was made on one child in satisfaction of all her
claims on the fund. The child advanced was held to be
removed out of the way for the benefit of the other child.
It will be observed that the effect of the advance in these two
cases was to destroy the power of appointment by the mother,
who survived the father.
In Nohlett V. Litchfield (7 Ir. Ch. E. 575) 5,000/. was settled
on the children of the marriage of A. and B., after successive
life interests to A. and B., as A. should appoint, and in default
on the children equally ; the settlement contained a hotchpot,
but no advancement, clause. There were five children of the
marriage. On the marriage of one child, C, in 1844, A.
settled 1,000/. on her. In 1845 he made his will, and thereby,
after reciting that he had five children, and was desirous of
appointing the 5,000/. amongst them all (except C, who was
already otherwise provided for), he appointed 1,000/. each to
D., E., and F., and 2,000/. to G. In 184S he settled 1,000/.
F. ]) 1)
402 A CONCISE TREATISE ON POWERS.
and 1,200/. on D.'s marriage, and made a codicil revoking the
appointment and bequests to her by his will in consequence of
the said provision made for her on her mannage. The Lord
Chancellor held that the father did not piu'chase the share of
D., and that such share went as in default of appointment ; and
that C. and D. were entitled to share with E. and F. in it ; (see,
too, Ld. Bmciford v. Ld. Eomnei/, 31 L. J. Ch. 497).
In settle- The general rule that, where there is a personal covenant for
estate, not ' payment and a charge, the personal assets are first charged, does
estate^^Ls pri- ^°^ extend to settlements. In such cases there is no personal
marily liable, benefit accruing to the covenantor, but the whole arrangement
is merely for the purpose of securing a jointure or portion, and
the personalty not having received any benefit, the true intent
is that the real and not the personal estate should be the
primary fund [Lanoy \. D. of Athol, 2 Atk. 444; Lechmerev.
Cliarlton, 15 Yes. 193 ; Graves v. Hicks, 6 Sim. 398 ; Loosemore
V. Kmqmian, Kay, 123).
Construction It is not unusual to find in settlements a provision to the
ment^clause. effect that if the parent advance any of his children in his life-
time, or by will, such advance shall be treated as a satisfaction
of the portions provided for the children. The construction of
these words has given rise to somewhat conflicting decisions.
In Cooper v. Cooper (L. R. 8 Ch. 813), real estates were devised
in strict settlement, and a term was devised to trustees on trust
to raise portions for younger children ; and it was provided that
if either of the parents should at any time during their joint
lives, or the life of the survivor, advance or pay any sum or
sums of money for the benefit of any younger child, then,
unless the contrary should be directed by deed, such advance
should be taken as a satisfaction of the portion. A gift by
will was held not to fall within this provision.
On the other hand, the contrary was held in Ticisden v. Ticisden
(9 Yes. 413) ; Leake v. Leake (10 Yes. 477) ; Onslow v. Michell
(18 Yes. 490), and Goolding v. Haverfield (M'Cl. 345 ; 13 Price,
593).
403
CHAPTER X.
FRAUDULENT APPOINTMENTS.
PAGE
1. Duty of persons executing powers 403
2. Execution bad, if made for cor-
rupt purpose 405
3. Appointments are not necessarily
bad, because appointor may
derive some benefit 409
4. Onus of proving the corrupt
purpose 413
5. Execution bad, if in pursuance
of antecedent agreement 415
6. Appointment to an object, and
contemporaneous settlement by
him, good 417
Interests given to strangers by
way of settlement 420
Family arrangement 421
7. Execution bad, if made for pur-
poses foreign to the settlor^s
intention ib.
PAGE
8. Settlor's intention to be collected
from the instrument of settle-
ment only 424
9. Repudiation by appointee of
participation in appointor's
plans 425
10. Distinction between motive and
intention or purpose 428
11. Purchaser for valuable con-
sideration without tiotice .... 429
12. Appointments cantiot be severed,
but stand or fall in toto .... 431
Three classes of cases : 433
First class of cases ; Excep-
tion 434
Second class of cases ; Ex-
ception , 435
Third class of cases 437
13. Fraudulent releases, so-called . , 438
1. A PERSON having a limited power, must exercise it
bond fide for the end designed; othermse the
execution is corrupt and void [Aleyn v. Belchier,
1 W. & T. L. C. ; 1 Eden, 132).
"A party having a power like this {i.e., a limited power) Duty of per-
must fairly and honestly execute it, without having any ulterior powere?*^"
object to bo accomplished. He cannot carry into execution any
indirect object, or acquire any benefit for himself either directly
or indirectly. It may be subject to directions or limitations ;
but it must be a pure straightforward honest dedication of the
property, as property, to the person to whom he affects or at-
tempts to give it in that character." " He must act with good
dd2
404
A CONCISE TREATISE ON POWERS.
Appointment
tmder joint
puwer.
Appointment
in part
fraudulent.
Confirmation
or aecjuies-
cence.
Liability of
appointor.
faith and sincerity, and with an entire and single view to the
real pm-pose and object of the power, and not for the purpose
of accomplishing or carrying into effect any bye or sinister object
(sinister in the sense of being beyond the purpose and intent of
the power) '' {Duhc of Fort/and v. Top/uaii, 11 H. L. C. 32).
" Any attempt to exceed the limitations of the power through
the medium of any appointment to one of the objects of it in
exclusion of the others, is equally invalid, whether the purpose
of the donee be selfish, or, as he supposes, a more beneficial
mode of effecting that which he takes the donor of the power
to have desired. The Court will not allow him to interpret the
donor's intention in any other sense than the Court itself holds
to be the true construction of the instrimient creating the power;
and a literal execution of the power, with a purpose which it
does not sanction, is regarded as a fraud on the power {ibid,, 5
Ch. 40, 59, per L. C. Hatherley).
An appointment in exercise of a joint power may be fraudu-
lent, although one of the appointors only is infected with a
fraudulent intent ; and the same principles apply to powers of
advancement as to powers of appointment (Laicric v. BanJccs, 4
K &J. 142).
But where there is an appointment to A. and B. by one
instrument (and a fortiori by different instruments), the appoint-
ment to A. may be good, and the appointment to B. bad, if the
fraudulent purpose affects the latter only [Harrison v. Randall,
9 Ha. 397). But inasmuch as the Court will not undo part of
an entire transaction, no suit can be entertained to set aside an
appointment of part of the trust funds as a fraud on the power,
when another appointment of other part of the same trust funds
has been made and is not impeached, and the object is to
equalise the interests of the several appointees {ibid.). And the
persons prejudiced by the fraudulent appointment may by
actual confirmation, or by acquiescence, confirm such appoint-
ment {Sl-(dton V. Flanagan, 1 I. R. Eq. 362 ; Fronton v. Frcston,
21 L. T. 346 ; and cf. Roach v. Trood, 3 Ch. D. 429).
If the appointment is set aside, the appointor is liable to
replace the whole fund withdrawn for his benefit under the
FRAUDULENT APPOINTMENTS. 405
appointment, and not merely to pay the actual amount of profit
made by himself. Tlius, in Bridgcr v. Deanc (42 Ch. D. 9), an
appointment of a i)oliey of assurance on the appointor's life was
set aside as fraudulent ; the policy had been surrendered and the
appointor had received the surrender value and had since died :
and his estate Avas held bound to replace the whole sum assured.
2. What the Court acts upon is the fraud upon the power, in Purpose of
p • c ^ • ^ 'L execution.
the exercise of it for purposes foreign to tliose for which it was
created : the question in each case must be, what was the pur-
pose for which the power was exercised.
Appointments may be fraudulent in that they were made
{a) for a corrupt purpose ; or {h) in consideration of an ante-
cedent agreement with the appointee to effect objects not within
the scope of the power ; or [c) for purposes foreign to the power.
(a.) Powers arc fraudulently executed if the execution if made for
corrupt
was made for a corrupt purpose. purpose.
A simple example of this is where the appointor intends a
benefit to result to himself. In Lord Ilinchinhrol'e v. Seymour (1
Bro. C. C. 395), there was a power in a settlement to raise a
portion for a younger child at such time as the parent should
direct : he directed it to be raised when she was fourteen ; she
shortly afterwards died, and the bill of her father, as her ad-
ministrator, to have the portion raised for his own benefit, was
dismissed. This case rests on the fraudulent purpose which
was found as a fact to exist ; for, where the appointor has
power to fix the time at which portions shall vest, there is no
rule of law which prohibits the raising of a portion charged on
land if the child dies under twenty-one and unmarried {Henti/x.
Wmj, 21 Ch. D. 332).
In Kcihj V. Keihj (4 Dr. & "War. 38), Lord St. Leonards says
that the Court has authority to defeat such an act as that of a
father charging a portion for his child, not because the child
wants it, but because the child is in delicate health and likely
to die, that is, because it is likely to come to some one not an
object of the power.
406 A CONCISE TREATISE ON POWERS.
In Lord Sandicich's case (mentioned 11 Yes. 479 and 4 Dr. &
"War. 55), a father, -witli a power of appointment among his
children, siipjiosing one of them to be in a consumption, exe-
cuted his power in favom- of that child : the Com't declared the
appointment void, being of opinion that the object of the ap-
pointor, when he made the appointment, was that he might
himself have the chance of getting the share as the adminis-
trator of his child.
In Rouley v. Rotcley (Kay, 242), a wife agreed with her
husband to postpone her pin-money and jointure rent-charges
to enable him to mortgage, in consideration of his appointing
part of a fund over which he had a limited power to a younger
child. Y.-C. Wood said that he should have very little hesita-
tion in saying that an appointment of that kind could not be
supported if it became the interest of any parties to disjDute it,
although he did not find any precise case to that effect. There
are numerous cases where the father has taken an advantage
from the fund subject to the power of appointment. He
thought it would be impossible to contend that, if a direct bribe
were given to the appointor, though out of a separate fund, the
appointment could be upheld in favour of the party to whom the
fund subject to appointment was given.
In Harrison v. Randall (9 Ha. 397), policies of assurance on
A.'s life were settled in trust for his daughters as he should
appoint ; and estates were limited to secure the payment of the
premiums. The trustees advanced moneys to pay the premiums,
and A. appointed the bonuses which had accrued to three of his
daughters, and they subsequently authorized the trustees to
receive them, partly in discharge of the premiums already paid
by the trustees, and partly to form a fund to pay future pre-
miums. This appointment was held a fraud on the power, its
object being to release the father.
In Wellesley v. Lord Mornington (2 K. & J. 143), where a
father appointed to a son, then in a state of mental and bodily
disease, of which he died within a year, the appointment was
set aside, the Court inferring from the evidence as to the father's
knowledge of his son's state of health and pecuniary cii'cum-
FRAUDULENT APPOINTMEXTri. 407
stances, as to the circumstances attending the preparation and
execution of the appointment, and as to its not having been
communicated to the persons to whom it ought to have been
communicated, that the appointment was made Ly the father,
not for the benefit of his son, but for his own benefit, and was a
fraud upon the power ; (and see Warde v. Dixon, 28 L. J. Ch.
315 ; Gve v. Gurnci/, 2 Coll. 48G ; Davies v. Iluguenin, 1 H. & M.
730; Carro/ly. Graham, 11 Jur. N. S. 1012).
And a parent cannot bargain with his children, on executing Parent cannot
a power of appointment in their favour, for the purchase of other children for
expectant shares belonging to them. ^^^
In Cuniiujltame v. Anstruther (L. R. 2 Sc. & D. 223), a mar-
riage settlement contained a power of appointing among children,
with a gift to them in default. The donees appointed parts of
the fund to their thi'ee daughters. On the occasion of each
appointment, the appointee declared that the appointment was
in full satisfaction {inter alia) " of the share or division thereby
allotted to her of her said father and mother's property settled
by the marriage contract." The surviving donee of the power
then proceeded to deal with the residue of the fund in a way not
authorized by the power. It was held that his attempt to deal
or negotiate with his children was invalid, and that the residue
unappointed must go as in default of appointment, notwith-
standing the releases executed by the appointees. It was not,
however, suggested that the appointments were invalid, although
they might be said to have been made partly in consideration of
the releases by the appointees.
But there is nothing in the relationship of father and child Purchase by
which renders a purchase of the latter's interest by the former from bargain
illegal, although the existence of the child's interest depends on ^^^ ^°* '
an appointment, or absence of appointment, by the father. In
Barron v. Barron (2 Jones, 798), the father had power to appoint
land amongst his issue male ; the father conveyed other lands of
his own to a trustee for his eldest son and his issue in considera-
tion of the son releasing all his right under the settlement ; and
the father was held entitled to the son's share in default of
appointment ; (and see Aak/tam v. Barlar, 17 13 . 87 ; Fulkes v.
408 A CONCISE TREATISE ON POWERS.
Wesfcni, 9 Yes. 456 ; Xoc/ v. Lord Wahimjham, 2 S. & S. 99 ;
Brou-nlou- v. Lord Meat//, 2 Dr. & Wal. 674).
Cannot buy But a father -who pm-cliascs the share of a child cannot by
Bhare of child appointment entitle himself to more than the share in default of
in default. ^appointment of that child {Smith v. Lord Cawclford, 2 Ves. 714).
And it has been said that if a father, in making an appointment,
gives to the child other property, and sells to him part of his own
interest, the Court will not weigh the consideration [Lnngston v.
Blackmore, Amb. 289 ; but see Conolhj v. MacDermott, Beat.
601, reversed in Dom. Proc. ; Sug. Prop. H. of L. 513).
Consent by Trustees must exercise any discretionary power they may have
tnistpcs
{e.g., to consent) bona fide for the benefit of the persons for whom
they are trustees. In Eland v. Baker (29 B. 137), a marriage
settlement contained a power for the husband and wife, with
the consent of the trustees, to make void the trusts of the settle-
ment, and to limit the estate to new uses. Tliis power was
exercised for the purpose of mortgaging the estate to one of the
trustees to secure a sum advanced to the husband. The estate
was afterwards sold under a power of sale in the mortgage deed.
It was held that a good title could not be made.
Appointment If the donee of a limited power, exerciseable by will only,
pursuance of Covenants to execute the power in favour of an object, and by
a covenant to ^,jjj '^^ execution of the covenant exercises it accordingly, such
appointment is not a fraud on the power ; although if the sum
covenanted to be appointed were not so appointed to, or left
unappointed to devolve upon, the covenantee, he could recover
damages from the covenantor's estate {Coffin v. Cooper, 2 Dr. &
S. 365; Bahner v. Loche, 15 Ch. D. 294). In the latter case,
Brett, L. J., said that such a bond or covenant by the donee of a
limited testamentary power was in his opinion entirely void.
In Thacher v. Key (8 Eq. 408), A. had a testamentary power
of appointment among his children, and on the marriage of one
of his daughters, he covenanted that he would exercise it by
appointing one-fifth to her. It was unnecessary to determine the
point, but V.-C. James thought that he should have had little
difficulty in holding such a covenant to be illegal and void. The
power was a fiduciary one to be executed by will only, so that
FRAUDULENT APPOINTMENTS. 409
up to the last moment of tlio donee's life lie was to have the
power of dealing with the fund as he should think it his duty
to deal with it, having regard to the then wants, position, merits,
and necessities of his children. The Vice-Chancellor did not see
how it could be considered right or proper that the appointor
should fetter his fiduciary discretion hy a covenant executed by
him in his lifetime.
But in Bulteel v. PliDiuncr (G Ch. 160), where a testatrix with
a similar power covenanted to appoint 2,500/. to a child, and hy
her will appointed accordingly ; Lord Ilatherley thought that it
would be a very forced application of the doctrine as to appoint-
ments if it were held bad, although there was something like an
improper exercise of the power, and of course the appointor tried
to exonerate her own estate. The testatrix did not wish to get
any benefit for herself, and he thought she was not prevented
from appointing the 2,500/. L. J. James does not touch on the
question in his judgment, and it appears not to have been pressed
in argument. But it is to be observed that if the appointment
had been held bad, the decision of the Court on the main question
in the suit would have been different ; (and see Daries v. Hugiienin,
1 H. & M. 730). An appointment made under a general testa-
mentary power, coupled with a covenant not to revoke the will,
is not a fraudulent exercise of the power [Robinson v. Ommannci/,
21 Ch. D, 780). As to the damages recoverable under such a
covenant, see Be Parian, (1892) 3 Ch. 510.
3, But although the rule is clear that the donee of a power Appointments
cannot stipulate for any benefit for himself with reference to the sarilTbad
exercise of the power, and that if he does so the whole appoint- ^e9ause ap-
^ ^^ pointer may
ment is vitiated by the consideration that he has not made it with derive some
the simple intention of providing for the objects of the power,
appointments are not necessarily fraudulent because the appointor
may possibly derive some benefit from them. In lie Huish's
Charit;/ (10 Eq. 5), the Master of the Rolls said : " The meaning
and the good sense of the rule appears to be, that if the
appointor, either directly or indirectly, obtain any exclusive
advantage to himself, and that to obtain tliis advantage is the
object and the reason of its being made, then that the appoint-
410 A CONCISE TREATISE ON POWERS.
meut is bad; but that if the whole transaction taken together
shows no such object, but only shows an intention to improve the
whole subject-matter of the appointment for the benefit of all
the objects of the power, then the exercise of the power is not
fi'audulent or void, although by the force of cii"cumstances such
improvement cannot be bestowed on the property, which is the
subject of the appointment, without the appointor to some extent
Appointment participating therein." In that case the tenant for life of real
grant' of estate under a marriage settlement had a power of appointing
building ^-j^^ estate among the children of the marriage, of whom there
were four. The settlement contained no power of granting
building leases. An appointment was made to one of the chil-
dren of the marriage ; and subsequently the appointor and
appointee joined in conveying the estate to trustees on trust to
grant building leases, and, subject thereto on trust, as to one-
fourth, for the appointee, and as to the other three-fourths, on
trusts corresponding to those contained in the original settlement.
It was held that a good title could be made by the appointees.
In PicMesM. Pickles (31 L. J. Ch. 146), a tenant for life, with
power of appointment by deed or will among his children, had
no power of leasing. He granted a lease, and on the day of its
execution made a will exercising the power in favour of one of
his children ; and he and this child at the same time gave the
lessee a bond of indemnity against the defeazance of the lease by
the death of the appointor during the term. This aj)pointment
was held good.
In CocJicroft v. SutcJife (25 L. J. Ch. 313), lands were limited
to a father for life, with an exclusive power of appointment
among children. Two of his sons set up in business as millers in
partnership, and at their request the father joined the firm. In
order to provide capital for the business, the father appointed
the lands to the two sons exclusively, and joined with them in
mortgaging the fee for 800/., which was placed to the general
credit of the firm, other property of the father to the extent of
600/. being included in the security. There being no evidence
of any bargain or 7uala fides on the father's part, and no advan-
tage to him except such as he derived from the mortgage money
FRAUDULENT APPOINTMENTS. 411
being employed by the firm of which he was a partner, the
appointment was held valid ; (see too, Pares v. Pares, -33 L. J. Ch.
215 ; Balduin v. Roche, 5 Ir. Eq. E. 110).
And it is not necessarily fraudulent for a father, who has exe- Power of
,■■ • L L 'ii'ip p 1' revocation
cuted an appointment reserving to nimseli a power of revocation, may be exer-
to exercise such power of revocation, altliou^'h the effect will be ^'■'*'^<i' t;bo"fe't
to entitle him to a share in the fund in default of appointment, person re-
Yoking.
In Shir lei/ v. Fi>iher (47 L. T. 109), trust funds were settled on
the children of a marriage, subject to a power of appointment
among them by theu* father. There were four childi-en, one of
whom died in 1869, a bachelor and intestate, and his father
became his legal personal representative. In 187G the father
appointed the trust fund to the other three equally, reserving to
himself a power of revocation. In 1880 he revoked this appoint-
ment, and proposed to execute a release of his power, and claimed
his deceased son's share as his legal personal representative. It
was held that there was no evidence of fraud in these circum-
stances, and that the father was entitled to the share.
In Cooper v. Cooper {ij Ch. 203), under the ordinary power of Ultimate
appointment among children, a share was appointed to an infant favour of
daughter on her marriage, and it was recited that the appoint- ^PP°"^*<^^*
ment was made in order that her share might be settled : it was
so settled, but after the usual limitations to the husband and
wife, and then to the children, the ultimate trust in default of
children was in favour of the appointor, the father. In the same
settlement, the father entered into a bond for payment of a
certain sum with interest. This was held not to be such a
bargain as could be supposed to have influenced the appointor's
miud in making the appointment, and without which it would
not have been made. The appointee was an infant, and could
enter into no binding contract concerning her share, and there
was no bargain to take anything out of such share, but the hus-
band promised to settle the fund so as to deprive himself of
property to which he would otherwise have been entitled in his
marital right. But Lord Hatherley thought that if a bargain
with the appointee to insert such a limitation in default of issue
were proved, there would be considerable difficulty iu dealing
412 A CONCISE TREATISE ON POWERS.
■with such a settlement, although the appointor might make a
provision equal to or greater in value than the ultimate reversion
•which he took ; because it was obvious that, in the event of the
husband and wife dying early without issue, the father might
take an interest far greater than anything he had provided.
In WichcHctfs case (Ambl. 234 n.), a remainderman filed a bill
for relief against a jointiu'e made by the tenant for life on his
death-bed, in consideration of and previous to marriage, by
virtue of a power. The appointment was sustained, although
the tenant for life had asked the remainderman to join in
charging the estate with his debts, and on his refusing had said,
" I will marry and execute my power," and although he died
eleven days after his marriage ; (and see Bakhvin v. Roche, 5 Ir.
Eq. E. 110).
Infancy of Nor wiU an appointment be avoided merely because the
appointee is an infant, and the appointor may possibly derive
some benefit from the appointment : if the power be well
executed in other respects, the fact that it will disappoint some
persons does not appear to be such an ill purpose as to make the
appointment a fraud on the power and void.
In Beere v. Hoffmister (23 B. 101), A. and his wife had a
power of appointing a fund to her childi-en, which, in default,
was settled on the children who attained 21, and, in default
thereof, on the next-of-kin of the wife. There were powers of
maintenance and advancement. There being but one child
three and three-quarters years old, in robust health, and the
wife being seriously ill, A. and his wife appointed the whole
fund to the child, reserving a joint power of revocation. The
child died two years after, and her father became entitled to her
property. The appointment was nevertheless held valid, no bad
purpose being shown ; (and see Butcher v. Jackson, 14 Sim, 444 ;
Hamilton v. Kirurin, 2 J. & L. 393 ; Domville v. Lamb, 1 W. K.
246; 9Ha. App. Iv.).
In Fearon v. Deshrisay (14 B. 635), a father had a power of
appointment among his children, their shares to vest at such
ages as he should appoint, and in default of appointment to vest
in them at twenty- one ; and there was a gift over if there
FRAUDULENT APPOINTMENTS. 413
should be no child entitled under the trusts or under an exercise
of the power. Tlio father executed the power in favour of his
first son at his Lirth, reserving a power of revocation ; but
afterwards, on an expected addition to his family, and being in
a weak state of health, he revoked the former appointment and
executed the power in favour of all his cliildren wlio should be
living at liis death equally. It was manifest that the appointor
could gain no personal advantage : for the persons in whose
favour the appointment was to take effect could not be ascer-
tained until his own death, and the intention of settlors is not
to be ascertained merely from the manner in which the fund is
given over in default of appointment. Accordingly one of the
children having died, the appointed fund was successfully
claimed by his mother, as his administratrix.
4. The burden of proving the corrupt purpose is on the 'pa.rty Onus prolandi.
who attempts to upset the transaction : and mere suspicion is
not enough : the wrong intention must be established {Camphell
V. IIomc,lY. & C. C. C. QQ^', JIcQiieen v. Farqu/mr, 11 Ves. 467).
In Fares v. Fares (33 L. J. Ch. 215), P. had a power of
appointment among her children by deed or will, and in
February, 1853, made a will exercising the power in favour of
two of her daughters. In March, 1853, she made a similar
appointment by deed ; and immediately afterwards she and
her daughters joined in mortgaging the property, and the
money was paid to P. The solicitors of the mortgagee acted
for P. in the preparation of the will and of the deeds. The will
was held a good appointment, although the deeds were clearly
bad ; no fraud being proved, and the facts, although suspicious,
being consistent with honesty.
But motives, such as circumstances of anger and resentment,
under which it is alleged that appointments are made, are not
to be adverted to. " There would be no end to such objections,
if they were to be admitted as grounds for questioning appoint-
ments : in almost all cases, where there has been an inequality
in the appointment, something of that kind has existed " {per
Lord Eedesdale in Vane v. Lord Dungannon, 2 S. & L. 130 ;
and see post, s. 10).
414
A CONCISE TREATISE ON POWERS.
Costs of
trustees.
Liability of
trustees.
But the 0)1 US proband i may be shifted by the circumstances
•which have occui-red. Thus the creation of a charge in favour
of the appointor immediately after the appointment, may raise
a case for an inquiry before the appointment can be acted on
{Jackson V. Jackson, 7 CI. & F. 977).
In Humphrey v. Olvcr (28 L. J. Ch. 406), it was held by the
Com-t of Appeal that where there is proof that an appointor at
one time intended a benefit to herself, the onus of proof that,
at the time of the appointment, she had abandoned that intention,
lies upon those who support the appointment. And where an
appointment has been set aside by reason of what has taken
place between the donee of a power and an aj^pointee, a second
appointment by the same donee cannot be upheld otherwise
than by clear proof on the part of the appointee that the second
appointment is perfectly free from the original taint which
attached to the first {Topham v. Buke of Portland, 5 Ch. 40, 62).
Although the Court will not relieve against a contract by a
cliild with a parent for an appointment to the child, when the
child is jyarticeps criminis {Palmer v. Wheeler, 2 B. & B. 29), yet
the Court watches with jealousy transactions between parent
and child occurring shortly after the child has attained twenty-
one, more especially where the transactions have had their
incei^tion during the minority of the child ; and the Court will
support trustees in exercising the same jealousy which the Court
itself is in the habit of exercising. It must be ascertained, of
course, that the trustees have acted bond fide, and have been
influenced by no corrupt or improper motives : but if it appears
that they have so acted, it is the duty of the Court to support
and not to punish them {King v. King, 1 D. & J. 663 ; Re
Metcalfe, 2 De G. J. & S. 122 ; Firmin v. Pulham, 2 De G. &
Sm. 99 : Re Swan, 2 II. & M. 34 ; Whitmarsh v. Robertson, 1 Y.
& C. C. C. 715).
And although trustees ought not to be astute in suspecting
fraud, and may be made to pay costs if they raise untenable
objections to acting upon appointments {Campbell v. Home, 1
Y. & C. C. C. 664; Patterson v. Wooler, 34 L. T. 415), yet if
they part with the fund improperly, they will have to replace it.
FRAUDULENT APPOINTMENTS. 415
"A trustee who, having good reason to doubt tlie validity of an
appointment, thinks proper to act upon it, must be affected by
the consequences which follow upon the act " {Harrison v.
Randall, 9 Ha. 397). In Machcchnie v. Marjoribnnks (18 W. R.
993 ; 39 L. J. Ch. 604), the donee of a limited power appointed
the whole trust fund to her daughter, one of the objects of the
power, who was about to be married. The money was paid by
the trustee at the daughter's written request of even date with
the appointment to the mother's banking account, and part of it
was expended by the mother for her own purposes. She died
insolvent. The trustee was held liable at the suit of the persons
entitled in default of appointment to replace the fund. Y.-C.
James thought that the letter and the appointment really
formed one transaction : it was as if the deed of appointment
had contained a recital that it had been agreed that the money
should be paid to the mother's account to be at her disposal.
But the injured cestui que trust must not sleep upon his rights.
" No doubt in case of an express trust lapse of time does not
create a positive bar : but a coui-t of equity will take it into
consideration along with other circumstances in deciding whether
the suit ought to be dismissed " {Philips v. Pennefather, 8 I. R.
Eq. 474; Roberts v. I'unstall, 4 Ha. 257). See, now. Trustee
Act, 1888, s. 8.
5. (b.) The execution may be fraudulent and void, on in considera-
,, T ,-, J •. 1 . o tion of antece-
tne ground that it was made m pursuance oi an dent agree-
antecedent agreement by the appointee, to benefit
persons not objects of the power, and that,
whether the agreement be in itself unobjection-
able or not.
The appointor cannot stipulate for any advantage to himself. For ap-
An agreement by an object of the power to retm-n part in beuefit.
consideration of an appointment in his favour is a fraud on the
part of the appointee and of the appointor {Daubotij v. Cock-
burn, 1 Mer. 644). Where a power is vested in a father, and a
stipulation is made by him for his own benefit in the exercise of
it, such an appointment, although in terms an appointment to
416 A CONCISE TREATISE ON POWERS.
the child, is in effect an appointment for the benefit of the
father, and is fraudulent and void. And it is not necessary that
it should he wlioll j for the benefit of the father : it is enough
if it is partially so {Jackson v. Jackson, ''7 CI. & F. 977). In
Dugc/an v Duggan (5 L. R. Ir. 525 ; 7 ih. 152), the appointment
■was made on condition that the appointee should buy the
appointor's life interest in the appointed proj)erty ; (and see
Stuart V. Lord Cast lest uart, 8 Ir. Ch. R. 408, and Sug. Pow. 527).
In Fanner v. M(irti)t (2 Sim. 502), the appointment was made
in consideration of an agreement to pay the appointor's debts,
and to provide for his illegitimate son.
In Askham v. Barker (12 B. 499), the appointor had obtained
part of the trust funds subject to the power, from the trustee, in
breach of trust : he appointed to some of the objects of the
power on an agreement that they should not make any claim
against the trustee, or call on him (the appointor) to pay the
amount.
In Reid v. Reid (25 B. 469), the appointment was made in
discharge of an antecedent debt. In Arnold v. Ilardwick (7
Sim. 343), in consideration of an agreement to lend the ap-
pointed fund to the appointor on good security : these were all
held bad.
For benefit of The appointor cannot stipulate for any benefit to any person
not an object of the power.
In Lee v. Fernie (1 B. 483), A. desired to settle property on
all the female descendants of D. then in existence ; and by deed,
reciting this desire, and that certain persons named were the
only descendants of D. then in existence, settled the property
upon these persons, reserving to himself a power to appoint part
thereof among them as he pleased. He afterwards discovered
that there were other descendants of D. in existence, and ap-
pointed part of the fund under his power to one of the objects
on his executing a bond for the payment thereof to the newly
found descendants of D. This was held void.
In Carver v. liiehards (1 D. F. & J. 548), A. was entitled for
life to certain estates, with a power of appointing them among
her children. She appointed to her eldest son, on a bargain
FRAUDULENT APPOINTMENTS. 417
between herself, lior husband, and the son, tliat the estates
should be settled, subject to the wife's life estate, to the use
that the husband should receive a rentcharge for life, and
subject thereto to the use of the children as the husband and
wife should jointly appoint, or as the wife, if she sur%'ived,
should appoint : this was held bad.
In Salmon v, Gihb.s (3 De G. & Sm. 343), tlie donee of a
power of appointment among children appointed almost the
whole fund to one of her two daughters, on an understanding,
but without positive agreement, that the appointee would resettle
one moiety of it on trusts for the separate use of the other
daughter (who was married) for life, exclusively of her husband,
and after her death for her children. A resettlement was
accordingly made without the privity of the married daughter,
who did not hear of it until several years after. On the
husband's suit, the appointment was declared invalid.
Re Kir wan (25 Ch. D. 373) is to the same effect.
6. An appointment to a child, an object of the power, Appointment
and contem-
and a contemporaneous settlement by him of the poraneous
,„,. TT T ., ■■ settlement
appomted fund, is valid, unless it can be shown good.
that the a23pointment was made in pursuance of a
contract inducing the appointment (Goldsmid v.
Goldsmid, 2 Ha. 187; Birkf/ v. Birle?/, 25 B. 299;
27 L. J. Ch. 569 ; and see Sug. Pow. 6-72, 673).
"If I have a right to appoint an estate to one of my children,
and that child joins with mo in a settlement of the estate upon
his children, although the grandchildren, who may be thus pro-
vided for, were not objects of the power, yet, the child joining
with me in that instrument, the Court would consider this as an
appointment of the estate to the child, and then a disposition of
it by him in favour of tlio grandchildren, although not objects
of the power " {per Lord St. Leonards in T/ion/jJiOn v. Simpson,
1 Dr. & War. at p. 487).
F. E E
418 A CONCISE TREATISE ON POWERS.
Appointor's And the donee of a limited power of appointment may well
appointee's execute it in favour of an object of the power, though he
settle*^'^'^ ^'^ believes and knows that the appointee wiU at once dispose of the
property in favour of persons who are not objects of the power.
But if, besides this belief and knowledge, there is a bargain
between the appointor and appointee that the appointee shall
make a disposition in favour of persons not objects of the power,
and the just result of the evidence is that the appointment
would not have been made but for the bargain, then the
appointment is void {Pnjor v. Pryor, 2 D. J. & S. 205).
When the exercise of a power in favour of a child and the
settlement of that child's share (she being about to be married)
are made at the same period by contemporaneous instruments,
though in form perhaps the instruments may not appear to be
correctly framed, yet the Court regards it as an agreement on
the part of that child that her share should be so settled, and
the transaction is treated as an appointment made to her of
her share, followed by the settlement of the share through the
medium of the interest that she so acquires by virtue of the
appointment {Daniel v. Arhcrighf, 2 H. & M. 95). In that case
the power was to aj)j)oint among children : an appointment by
deed poll was made to the trustees of a marriage settlement of
even date of one of the children on the occasion of her marriage.
This was held good : but an appointment by deed in favour of
another daughter ah-eady married, her husband, and children,
was held bad, for the daughter could not deal with her share by
exercising any will of her own with reference to a settlement
{ihicl).
Ttere must be There must be no antecedent contract inducing the appoint-
no antecedent • ^ , ji ;• i • t i jii n
contract. ment between the parties ; a bargain between the donee and
the object of the power to make a provision for persons not
objects of the power without any benefit to himself would
vitiate the appointment, if it were shown that such bargain
induced the appointment. The question is, In what character
does the appointee take the property ? If for his absolute
benefit, the appointmeat is good ; but if for the purpose of dis-
tribution amongst persons not objects of the power, the appoint-
FRAUDULENT APPOINTMENTS. 419
ment cannot be supported {Birhi/ v. Birlci/, 2-j B. 299; 27 L. J.
Ch. 509;. The case of Tttcker v. Tucker (l-'i Price, GU7), if at
variance -with this, cannot be supported. In that case, the
appointor appointed to an object of the power in fee, but by a
subsequent deed, and piir.suanf to (oi cKjrcement made prior to the
execution of the jioiccr, a term of years was created to provide for
certain costs and to raise annuities, and subject thereto the
estate was settled to the use of the appointee for life, with
remainder to his children, strangers to the power. This appoint-
ment was held good. But in Cuttcn v. Sanger (2 You. & J. 459),
the same settlement was held by the same judge to be merely
voluntary, so far as it gave interests to the appointee's children
as against the appointee's creditors : this showed that the ante-
cedent agreement was not binding on the appointee ; (and see
Sug. Pow. 671—673).
The mere existence of a contract between appointor and Contract for
appointee for a settlement is not enough to avoid the appoint- when bad.'
ment. In order to do this, it must be shown that the contract
induced the appointment, and that, but for the contract, the
appointment would not have been made. In Re Tamer (28
Ch. D. 205), an estate was settled (in effect), as to one half, on
A. for life, with remainder to his children, and as to the other
half, on B. for life, with remainder to his children ; and the
trustees had power to appoint the fee of the shares of A.
and B. to them or either of them. In 1882, A. and B. were
both over sixty years of age, and had mortgaged their life
estates, and neither of them had a child. A. and B. requested
the trustees to convey to them in fee, and the trustees agreed to
do so on an arrangement by which money was to be raised by
mortgage of the fee to pay off the existing mortgages ; and
pai't of the fee was to be settled for the benefit of A. and B. and
their resjjective wives and issue. The deed by which the tnistees
conveyed the fee recited that they had exercised their power on
condition that the settlement should be made. This appointment
was held good.
It is by no means unusual to find in mamage settlements a
recital of an appointment, and of an agreement to settle the
E E 2
420 A CONCISE TREATISE ON POWERS.
appointed fund. It is, of com*so, desirable to avoid all question
bj making it clear that tlie appointment was made independently
of, and prior to, the agreement to settle ; but tbe case of Re
Turner shows tliat the mere existence of an agreement would
not avoid the settlement. The appointment by a father is not
avoided because he knows, or even has agreed with his child, that
she will settle the appointed fund. But if it were shown that
the child desired not to settle, and that the father refused to
appoint unless he or she agreed to do so, the appointment would
be void.
Interests may It has also been held that, under a power to appoint among
be g'iven to , ,
grand- cliildi-en, interests may be given to grandchildren by way of
objects)^ by° Settlement with the concm-rence of their mother, an object of
meJt°*'^"^^" ^^® power, and her husband {White v. St. Barbe, 1 Y. & B.
399 ; Wri(//d v. Gqff, 22 B. 207).
In lie Gossct (19 B. 529), the Master of the Eolls says the
cases establish this proposition, that what may be done by two
deeds shall not fail because it is done by one, where it appears
to have been done with the assent of all parties, who, perfectly
knowing what their rights were, endeavoured to carry them into
effect ; (and see Cuninghame v. AnstrutJicr, 2 Sc. & D. 223, at
p. 234).
Reversionary The rule is the Same whether the subject-matter of the power
be property in possession or reversion {Re Go>i^et, 19 B. 529) ;
and as a husband could, before the Married Women's Property
Act, 1882, dispose of his wife's reversionary interest in personalty
against every one except his wife if she should survive him, it
was immaterial that the wife, the object of the power, was a
minor {Fitzroy v. Bulie of Richmond, 27 B. 190).
Effect of Prior to tlie Married "Women's Property Act, 1882, the
M. W. P. Act. i ./ ' '
husband became on marriage entitled to his wife's personal
estate, and a settlement thereof by him was therefore effectual,
although the wife was a minor. The settlement was in fact his
settlement ; but this is no longer possible since that Act ; and
the case of an infant wife can only be met by a settlement
under the powers of 18 & 19 Yict. c. 43. It is to be observed
that a settlement may be made under thic Act, not merely on
FRAUDULENT APPOINTMENTS. 421
the occasion of the marringo, but after the marriage has takou
place {Re Sampson and TFal/, 2o Ch. D. 482 ; and see Scafon v.
Scafon, 13 App. Cas. Gl, G8 ; Itc Lcirj/i, 40 Ch. D. 290).
It has also been lield tliat, in an arrangement settling the Family
interests of all the branches of a family, cliildi-cn may contract J^y^be valid,
with each other to give to a parent, who has power to distribute
property among them, some advantage which the parent, without
their contract with each other, could not have.
In Davifi v. Up/ii// (1 Sw. 129), an estate being limited under
a marriage settlement to A. for life, with remainder to her
children as she should appoint, with remainder to aU the
childi-en equally, an agreement by the children that on her
joining in suffering a recovery, the first use to which the
recovery should enure should be to A. for life wit/iout inqjeac/i-
ment of urmfc, was held valid.
And in Wri(jht v. Goff (22 B. 207), A., a man-ied Avoman,
was the sole object of a power of which B. (the tenant for life
of the fund) was the donee, and an arrangement was made
between A. and her husband and B., in pm-suance of which an
appointment of the whole fund was made to A. at once, and she
and her husband then resettled the fund, giving interests to A.'s
husband and children. The husband survived his wife. It was
considered that this was a family arrangement for a resettle-
ment, and that the husband and his representatives were bound
by it. (And cf. Bcddoes v. Pugh, 26 B. 407, a case which
shows that the Court must act on the provisions of a deed until
it has been declared to be invalid ; Skelton v. Flanagan, 1 I. R.
Eq. 362 ; Roach v. Trood, 3 Ch. D. 429.)
7. ((?.) The execution is fraudulent and void if made dz^ t^^rUu ^//c
for purposes foreign to the power, although such "^ *»c^ tlkt^o
purposes are not communicated to the appointee ^
previously to the appointment, and although the
appointor derive no personal benefit.
"The purpose of the author of a settlement, b}' which a The intention
power is created, is to benefit the objects within the range of ia to be strictly
followed.
^22 A CONCISE TREATISE ON POWERS.
the power. If the power be exercised beyond that range, his
intention is that the property, the subject of the power, shall
go to those who are entitled in default of appointment. When
therefore it is asked that effect may be given to an appoint-
ment, which has for its object to go beyond the power, it is in
truth asked that the unauthorized purj)ose of the donee may be
preferred to the authorized purpose of the donor, and that to
the prejudice of those who would be entitled but for the donee's
unauthorized purpose" {per 1j. J. Turner, 1 D. J. & S. 568).
In Weiry. Chamlei/ (1 Ir. Ch. E. 295), a sale of property having
been made in a suit, the purchaser objected to the title, and his
objection was allowed. The vendors appealed, and pending the
appeal appointed to some of the objects so as to avoid the diffi-
culty. This was held bad, one reason being that the appoint-
ment was made not for the benefit of the appointees, but on an
emergency and for collateral purposes. (See, too, Brewer v,
Sivirles, 2 Sm. & Gr. 219, which may, perhaps, be supported on
this ground.)
In Tophcmi v. Duke of For Hand (1 D. J. & S. 517; 11 H. L.
C. 32), the duke, having a power of appointing portions among
his younger children, aj)pointed a double share to a younger
child without previous communication with him. It appeared
that the purpose of the appointment was, that one half of the
double share should be held in trust, and the income accumu-
lated during the life of the appointee and twenty-one years
afterwards, or until the successor to the dukedom should direct
such half and the accumulations to be paid to another child,
who had been excluded on account of an intended marriage
disliked by the appointor. In the absence of such directions,
the said half and the accumulations were to be paid to the
appointee. The appointee, soon after the appointment, executed
a deed settling the moiety accordingly. It was held that the
purpose of the appointment of the said half, although not
communicated to the appointee, vitiated it as to that portion.
In Me Marsden (4 Drew. 594), the objects of the power were
the children of the marriage : the donee (the wife) desired to
benefit her husband : to effectuate this, she appointed to her
FRAUDULENT APPOINTMENTS. 4-33
eldest daughter unconditionally on the face of it, but under an
arrangement between the appointor and her husband that, on
the appointor's death, the daugliter should be informed by her
father of the intention with which the appointment was made,
and so be induced to carry out that intention. V.-C. Kin-
dersley (p. 601) says : — " It is not necessary that the appointee
should be privy to the transaction, because the design to defeat
the purpose for which the power was created vdW stand just the
same, whether the appointee was aware of it or not : and the
case of WeUcsley v. JIor)ti)ifffon shows that it is not necessary, in
order to bring the case within the scope of the jurisdiction on
which this Court acts, that the appointee should be aware of the
intentions of the appointment, or of its being actually made " ;
(and see He Crairshaij, 43 Ch. D. 615).
In D'Ahhadie v. Bizoin (5 I. R. Eq. 205), A. had power to Appointment
1 •! 1 • 11 J ^ considera-
appomt certam lands among her children m such shares and tion of re-
proportions as she pleased : she devised part thereof to a trustee, ^^ ^ * ^^^
on trust to sell and lay out the proceeds in the purchase of
fi-eehold property in France, and to convey the property so
purchased to the testatrix's second son in fee, provided he should
previously decide to reside in France ; but if he decided not to
reside in France, then she devised the property so purchased to
another of her sons. The Court said that, on the face of the
will, it was apparent that the devise to the second son was one
which resulted from an intention on the part of the donee of
the power to induce her son to reside in France, by giving him
property which had belonged to another person, and over which
the testatrix had only a power of appointment. The testatrix
held out an inducement to her son to reside in France : that
was an indirect object, not warranted by the power, and so
inseparably connected with the devise or appointment that it
made it fail entu'ely.
On the other hand, it was held, in Hodgson v. IlaJford (11 Ch.
D. 959), that a forfeiture clause on marrying anyone not a Jew,
annexed to an appointment under a limited power, was autho-
rized by the power. The principle upon which Hall, V.-C,
rests his judgment, that a power of appointment among children
-t'31 A CONCISE TREATISE ON POWERS.
ought to be construed, " so as to embrace every ordinary
provision whicli a parent might make, and which might be
useful or available " for his children, seems too widely ex-
pressed, and if adopted would dispose of many cases of frauds
on powers.
Tiie settlor's g TJ^e iiitention of the donor of a power must be
intention is to ^
be collected ascertained from the instrmnent creatino; it, and
from his , ^ , .
deed only. can oiilv be dcalt witli as it is therein exj)ressed.
It makes no difference that the settlor is himself the donee of
the power : if he declare trusts, reserving a power to be exercised
for the benefit of a limited class only, he cannot alter that
destination of the property {Lee v. Fernic, 1 B. 483).
In Topham v. Didic of Portland (1 D. J. & S. 517), the second
question was this : — The late duke declared that trustees should
hold certain funds after liis death on trust for his daughters, H. and
M., or one of them, as his son (the present duke) should appoint,
and in default of appointment should pay the dividends to H.
and M. in equal shares during their joint lives, with remainders
over. At the time the settlement was made the settlor objected
to a proposed marriage of M., and made the settlement in order
that, in the event of the marriage, the income should be
appointed, as to one half, for H., and as to the other half, to be
dealt with according to circumstances. After the death of the
settlor, M. mamed : the i:)resent duke thereupon appointed the
income of the whole fund to H. for life, reserving a power of
revocation. H. was not informed of the appointment, and it
was sho\vn that the intention of the present duke and of H. was
to accumulate one moiety of the income and to hold it in
suspense. The Lords Justices were of opinion that the deed
creating the power did not authorize an entire suspension of the
enjoyment of the fund for the purpose of accumulation during
an indefinite period ; and that an appointment of the whole had
been made to H. without any intention of giving her any
benefit in one moiety, and for the express purpose of its being
accumulated, the accumulations to be disposed of as eventually
FRAUDULENT APPOINTMENTS. 420
the prosonfc duke should direct, and that she had assented to
such arrangement. And, moreover, that the control of M.'s
share could not ho delegated to H.
The House of Lords (11 11. L. C. 32) affirmed the decision
of the Lords Justices, on the simple ground that H. had in
reality no knowledge of the deed of appointment, and tliat it
was evident, from the slender information communicated to her,
and from the reservation of the power of revocation, that she
was not intended to have any real ownership or control over the
fund.
This execution of the power having heen declared void, the
present duke executed a second deed of appointment, appointing
the income to H. during the joint lives of herself and M.
ahsolutely. H. was duly informed that this appointment had
been made, and she and the duke deposed that there was no
agreement between them as to the disposition of the income.
In Topham v. Duke of Portland (5 Ch. 40), this was also held
invahd. The Lord Chancellor (Hatherley) thought that a valid
appointment might have been made to H. : but the real point
for consideration was, whether or not, though now conscious of
her strict right at law to dispose of the fund, the pressure of a
moral obligation not to appropriate more than one half of it to
her own use, and to hold the other half subject to the duke's
intentions and for his purposes, did not, at the date of the last
appointment, and still, weigh on her mind with such force as to
convert her into a mere passive instrument of the duke's inten-
tions, and whether such her sense of moral obligation was not
well known to the duke : and if so, whether he had taken any
step whatever to discharge her from it, and restore to her
complete freedom of action. Hutchiiis v. Hutchins (10 I. R. Eq.
453) is to the same effect. In that case the fraudulent appoint-
ment had been duly revoked, and the power exercised anew :
but the latter appointment was held invalid; (see (infc, p. 206).
9. It is submitted that an appointment, made on the Where the
, p . -I i. • i. appointee
appointor s part for an improper purpose, but innocent so repudiates the
far as the appointee is concerned, is invahd although the ^^^ ^^^"
426 A CONCISE TREATISE ON POWERS.
appointee, on being appealed to by the appointor to effectuate
bis purpose, refuses to do so.
From the Lord Chancellor's judgment (5 Ch. 58) it would
appear that tlie second appointment to H. would have held
good if the Court had been convinced that her conscience was
not bound (the appointor had deposed that he had appointed
bond fide without ulterior purpose). But in Re Marsden
(4 Drew. 594), the appointment was made unconditionally, and
the purpose of the appointor was not communicated to the
appointee until afterwards. But the appointment was held
void, and the appointee's petition for payment out of the fund
appointed was dismissed, on the ground that the appointor's
intention was to exercise the power in such a manner as to
defeat the real purpose thereof. The Court said that it was not
necessary that the appointee should have any previous know-
ledge, but the purpose of the donee must be matter of proof.
In Scroggs v. Scroggs (Ambl. 272) , the consent of a trustee was
necessary to the exercise of a power, and the appointor obtained
the trustee's consent by a false representation, to which the
appointee does not appear to have been a party : yet the Court
set aside the aj)pointment.
But suppose (as Lord Cairns suggested, arguendo, 1 D. J. &
S. 555) that the child to whom the appointment was made in
WeUeHleij v. Mornington (2 K. & J. 143), had recovered, or, in
that case, refused to carry the scheme into effect, could the
appointment have been set aside ? (and see Dauheny v. Cockhurn^
1 Mer. 643). It is submitted that the appointment would be
bad as against the persons entitled in default. If there was
such evidence of the purpose of the appointor as the Court could
take into its judicial cognizance, whoever the person may be
who is ultimately benefited by the fraudulent execution of the
power {i.e., whether appointor or appointee), the appointment
would be equally a fraud on the other objects or the persons
entitled in default, if it was made for an improper purpose.
" With regard to the interests of the wife and children of the
defendant " (said Lord Eldon in Huguenin v. Baseley, 14 Ves.
FRAUDULENT APPOINTMEXTS. 427
273, 288, a case of undue influence), "there was no personal
interference upon their part in the transactions that have pro-
duced this suit. If, therefore, their estates are to he taken from
them, that relief must be given with reference to the conduct of
other persons : and I should regret that any doubt could be
entertained, whether it is not competent to a court of equity to
take away from third persons the benefits which they have
derived fi'om the fraud, imposition, or undue influence of others.
The case of Bridrjman v. Green (2 Yes. sen. 627) is an express
authority that it is witliin the reach of the principle of this
Court to declare that interests so gained by third persons cannot
possibly be held by them." So, too, in Roiclei/ v. Rowleij (Kay,
242), y,-C. "Wood said that a bribe given by a third person to
the appointor would vitiate the appointment. The question to
be asked in each case is, Would the appointment have been
made if it had not been for the improper intention of the
appointor? "What the Com't acts upon is the fraud on the
power in the exercise of it for purposes foreign to those for
which it was created (I D. J. & S. 569, 570). And the Master
of the Eolls' remarks in Topham v. Dulie of Portland (31 B. 541)
have some bearing on the point : — " If the appointee refuses to
give effect to the wishes of the appointor, he gets what it was
never intended he should have, and enjoys property which, if
his conduct could have been foreseen, might and probably would
have been given to another. The case is exactly the same
whether the consent or the agreement to act as desii-ed be given
or entered into before or after the appointment. The Court
also would be placed in this dilemma : if it did not enforce
compliance with the wishes of the appointor, it would be sanc-
tioning the appointee in taking property never intended for
him ; and if the Court were to enforce it as binding in con-
science on the appointee, the Court would enforce the execution
of a power in favoiu' of persons who were not objects of it."
And if it be necessary to convict the appointee of fraud, there
is not much difference morally between the person who joins
in committing a fraud in its inception and the person who,
though ignorant of the fraud in its inception, yet retains and
428
A CONCISE TREATISE ON POWERS.
Distinction
between
motive and
intention oi"
purpose.
enjoys tlie fruits of it after lie has become aquainted with its
existence.
10. It has been seen (s. 4) that the Court will not advert to
motive : but a distinction has been taken between motive and
intention or purpose {Va/ie v. Lord Dto/grnuwu, 2 S. & L. 130).
The L. J. Turner (1 D. J. & S. 571) says :— " It is one thing
to examine into the purpose with which an act is done, and
another tiling to examine into the motives which led to that
purpose : and what we have to do is to look to the purpose of
the act which was done, and not to the motive which led to it."
This is adopted by L. C. Ilatherley (5 Ch. 57), and he applies
it to the case of Top/iam v. JDiike of PorUaml, thus : — " If the
duke, truly preferring H., either on the ground of her sister's
supposed disobedience to her father's wishes in her marriage, or
for any other reason, however capricious, intended simply to
give the property to her in preference to her sister, he is by the
power authorized to do so. If he, on the contrary, has not any
such intention, but has executed the instruments with the intent
that H., having the sole control of the fund, should abstain from
dealing with it as her own, and should accumulate one moiety of
it, in order (according to events) either to dispose of it for her
sister's benefit, or to let it fall back according to the limitations
in default of appointment, then I think that the distinction
taken by L. J. Tm-ner between intent and motive would apply.
The difficulty of the case lies in this, that the intent is not
always capable of demonstration. In cases where the nominal
apj)ointee has engaged beforehand to execute the unauthorized
intent, another equitable principle, that of trust binding the con-
science of the appointee, is introduced : but the existence of the
intent on the part of the appointor, as evidenced by the com-
munication to the appointee, after the appointment had been
made, of a purpose inconsistent with the power, was, in Re Ilars-
den's Trusts, held sufficient to vitiate the appointment, though
the appointee had not, before the appointment, been privy to the
arrangement." The result is somewhat curious; for, if the duke's
anger against his sister had been so great as to induce him to
exclude her entirely and absolutely by appointing to the other
FRAUDULENT APPOINTMENTS. 429
sister, the appointment would liavo been good. But, as ho
wished to give her some benefit if she obeyed his wishes, his pur-
pose was not within the power, and vitiated the whole appoint-
ment. The motive in either case would probably bo annoyance
at the sister's conduct ; but the purpose in the former would be
to benefit the other sister, and in the latter to compel obedience
to his wish. It will bo observed that, in criminal law, per contra, it
is the motive that makes the crime. A. shoots B. through the
head deliberately, and knowing that the pistol is loaded, and that
the wound will be mortal. His intention or purpose is obviously
to kill B., but his motive may bo robbery, or self-defence, or
various other things, and the criminality or innocence of his act will
depend thereon (see Stephen's Hist, of Crim. Law, vol. ii. p. 110).
1 1 . A purchaser for valuable consideration from the Purchaser for
appointee who has acquired the legal estate with- sidcration
out notice is not affected by the fraudulent exe- ^ote^Jted.*' ^^^
cution of the power. Any notice to affect such a
purchaser must be actual, not constructive, notice.
In McQueen v. Farquhar (11 Yes. 467), estates were limited to
the use of A. for life, with remainder to the use of his wife for
Hfe, and the settlement contained an exclusive power of appoint-
ing among children, also created by way of limitation of uses.
A. entered into a contract for the sale of the estates, and after-
wards appointed the fee (subject to the life estates of himself and
his wife) to his eldest son : and the three thereupon conveyed
the estate to the purchaser in consideration of a sum expressed to
be paid to all of them. Lord Eldon overruled an objection that
the appointment appeared to have been made in pursuance of a
previous agreement, and that if A. derived any benefit from
that agreement, which seemed probable, or even if he had pre-
viously stipulated that his son should join him in the sale, which
seemed most probable, it would be a fraudulent execution ; (and
see Green v. Puis ford, 2 Beav. 70 ; Sug. Pow. 616 ; Cochrrqft v.
Sutclife, 25 L. J. Ch. 313 ; Hamilton v. Kincan, 2 J. & L. 393 ;
Rhodes v. Cook, 2 S. & S. 488; Re Himh's Charity, 10 Eq. 5).
430 A CONCISE TREATISE ON POWERS.
In TTardc v. I)/.wn (28 L. J. Ch. 315), the appointed fund
was a reversionary interest in consols, standing in the names of
trustees ; and the purchaser therefore got no legal estate. The
V.-C. held that the cu'cumstances raised such grave suspicion
that he dismissed with, costs the vendor's bill for specific per-
formance of a contract to purchase the appointed interest. In
Ask/iam v. Barker (17 B. 37), the property appointed was also a
reversionary interest in personal estate : but the M. R. came to
the conclusion on the facts that there was no fraudulent purpose.
But not if he But it ■^ill be otherwise if the purchaser have actual notice of
have notice. ^ , „ ,
the fraud.
In Hall V. Montague (8 L. J. Ch. 0. S. 167), a father, the donee
of a power of appointment among his children, agreed, three
years before his eldest son attained twenty-one, to sell part of the
settled estates to A. ; and he covenanted with A. that he, his
wife, and such of his children as he should appoint to, would,
within three months after their eldest child should attain
twenty-one, convey to A. ; the purchase-money was to be paid to
the father. An appointment to a child and a conveyance by the
parents and such child were accordingly made to the purchaser.
This whole transaction was set aside nearly thirty years after, at
the suit of the younger children. Sii- John Leach, in considering
the question whether A. was affected with notice, said that the
agreement provided that the pui'chase-money should be paid to the
father, and the agreement was with the father alone. In M' Queen
V. Farquhar (11 Ves. 467), there was not sufficient evidence to
show that the purchaser knew that the purchase-money was to
be applied for the benefit of the father alone. The purchaser
might very reasonably (Lord Eldon thought in that case) infer
that the son was to take his fair proportion of the value of the
reversion ; but could anybody reasonably infer, in the case
before the Coiu-t, that the son was to have the benefit of his fair
proportion ? or that A. was not aware that the money, though
nominally paid to the father, wife, and eldest son, was really
paid to the father ? In the first place there was A.'s covenant
that it should be paid to the father ; and, in the next, the con-
veyance to A. did not recite the truth of the case. He did not
FRAUDULENT APPOINTMENTS. i'^l
suppose that A. was permnaUy a party to the fraud ; but those
who drew the conveyance knew that it was a fraudulent trans-
action, lie was of opinion that all who claimed under it were
affected Ly the fraud of the transaction. The case of Pahncr v.
Wheeler (2 B. & B. 18), is treated by Lord St. Leonards as an
authority to the same effect : but it is to be observed that in
that case the appointee was absolutely entitled in default of
appointment ; and the case appears to be one rather of undue
parental influence than of fraud on a power ; (see Shelton v.
Flanagan, 1 I. R. Eq. 302, at p. 371).
A fraudulent appointment made on the marriage of the Issue of
appointee will be set aside; and the issue of the man-iagc cannot^sup-
cannot protect themselves on the ground that they were pur- P^'"*^ fraudu-
chasers for value (Sug. Pow. 617 ; Conolhj v. Macdcrniott, Sug. ment.
H. L. 513 ; Re Nash, 5 Ir. Ch. E. 384).
And of course the purchase must be from an object of the Purchase
power of a share appointed to him, and not from the appointor. ^pomtce!°°^
The payment of a money consideration cannot make a stranger
become the object of a power created in favour of children : he
can only claim under a valid appointment executed in favour of
some or one of the children {Daubeny v. Cockhurn, 1 Mer. 626).
12. It is in most cases impossible for the Court to sever Appointments
appointments which are fraudulent ; such appointments are, as a severed. ^
general rule, void in toto ; for the Court cannot know whether
the power would ever have been exercised if it had not been for
the corrupt pm-pose. Where there is an appointment made by
a father to a child of a given sum of money, out of which he is
to be paid something for making it, it is quite impossible to
separate the appointment by dividing it into two parts, and to
say, so far as the donee was guided by his wish to provide for
his child, it is good, and therefore the Court will support it; but
so far as he wished to benefit himself from the fraud, it is bad ;
because the party in remainder might say that the donee was
not actuated in the appointment by love to his child or by the
wish to provide for him, or, at all events, it was so mixed up
with his own benefit that it was impossible in any way to sever
the two piu'poses and to say how much was to be attributed to
■i32 A CONCISE TREATISE ON TOWERS.
the one and liow mueli to the other ; and therefore the purpose
for his doing tlio act at all being a desire to benefit himself
was fraudulent, and the subsequent act depending upon that
piu'pose must be set aside {Boir/r// v. Eoicleij, Kay, 263). Thus,
if a man have a power of appointment among childi^en, and he
appoint 3,000/. to one child on an agreement to take back 1,000/.,
the appointment will not be good as to 2,000/., but will fail in
fofo. The general rule is that
Appointments cannot be severed, so as to be
good to the extent to which they are bond fide
executions of the power, but bad as to the
remainder, unless (1) some consideration has been
given which cannot be restored, or (2) the Court
can sever the intentions of the appointor, and
distinguish the good from the bad [Dauheny v.
Coclihurn^ 1 Mer. 626 ; Topham v. DuUe of Portland^
1 D. J. & S. 517).
And the fraud may run through several appointments and
infect them all : in such a case, if all the appointments appear
to be part of one fraudulent design, all will be set aside (see
Ashham v. Barher, 12 B. 499 ; Farmer v. Martin, 2 Sim. 502 ;
Agassiz v. Squire, 18 B. 431).
Cases of absolute appointment with a condition annexed must,
however, be distinguished. It might perhaps have been thought
that an express condition stated in the appointment was as much
a sinister or bye purpose as an unwritten understanding, binding
only in honour between appointor and appointee. But it is well
settled that where there is an appointment to an object of the
power, coupled with conditions which are in excess of the power,
the appointment is valid, and the appointee is entitled to enjoy
the appointed property free from the conditions {a)itc, p. 298).
" The authorities, of which Carver v. Bowles (2 R. & M. 301) is
an example, have determined (on principles which, if sound in
England, must be equally so in Scotland) that an ulterior pur-
pose of this kind, which is ultra rircs only and not also a fraud
FRAUDULENT APPOINTMENTS. -i'^^J
on the power, though it may have operated as a motive for the
appointment in tlio mind of the appointor, will nevertheless not
prevent an object of the power from taking for his own benefit
the estate appointed to him, if the words used, according to their
proper construction (which must itself be independent of any
peculiar doctrines of law api)licable to powers), are sufficient to
execute the power and to vest the property in the appointee "
(jjer Lord Selborne, Macdonahl v. Macdonahl, L. B. 2 8c. & D.
482,492; but see Re FrrhiNs, 41 W. li. 170, m/ qu.). It is
submitted that the meaning of the qualification " and not also a
fraud on the power," is that there is not also a corrupt bargain
or understanding to the effect of the condition : the express
insertion of the condition will not validate an appointment
which would otherwise be a fraud on the power.
V.-C. Wood, in Roicloj v. Roivlvi/ (Kay, 242, 258), dis- Three classes
tinguishes three classes of cases thus : —
" With regard to the position of this doctrine as to powers, First class
. . p rm . of cases.
there are three different and distinct classes of cases. There is,
first of all, the case in which there may be a fraud on the donor
of the power, or those who claim under him, by the person who
takes the fee simple or other estate which is the subject of the
power. There may be cases in which the fraud is on him alone,
there being only one person interested in the charge which may
have been created, as in the case of a jointui-e, and many other
simiilar cases, such as, for example, a power of raising a given
sum of money out of a given estate, for a single individual ; and
if the power be exercised, so as to enable the donee of the power
to raise money upon it for a purpose of his own, it is a fraud
upon the donor of the power and the party claiming through
him that any part of that sum should be raised for any purposes
except those prescribed by the power.
" A second class of cases is where the fraud may be wholly on Secon.l class
or C&S6S
the parties who are interested in the distribution of the fund and
cannot be in any way a fraud upon the donor of the power, that
is, the charge would remain whether the power be exercised or
not, but the distribution of the fund would be the only point in
question. That is the case I have before me. It is a case in
F. iJ' ^^
434
A CONCISE TREATISE ON POWEES.
Third class
of cases.
First class
of cases.
Exception.
■which 30,000/. would be necessary to be raised, whether there
were any appointment under the power or not ; and therefore
the fi-aud, if any, is one which would affect the persons only
who ai'e interested in the distribution.
" There is also a third class of cases, which comprehends both
the classes I have just mentioned, namely, where the power is
to create a charge as well as to distribute it under certain
circimistances, or to particular individuals, in which case it
would be a fraud to have the power exercised at all if the
cii'cumstances had not arisen, or for the benefit of parties who
were not interested in it and who were not intended to be
interested in it. The owner of the estate in the last class of
cases would be entitled to say, it never was intended to be
distributed except in a fair, upright, and honest manner, as
between all parties interested in the charge."
"With regard to the first class of cases, an exception has been
established in favour of jointures.
In Lane v. Page (Ambl. 233), the donee of a power to join-
ture, being in debt, executed his power to its full extent pre-
viously to his marriage. He had agreed with liis future wife
that she should join in levying a fine, the use of which was
partly for the wife's benefit and partly for the payment of his
own debts. The execution was set aside so far as related to the
husband's debts, but was supported so far as it was for the wife's
benefit. In this case, the subsequent marriage was a considera-
tion that could not be restored, and the case might have been
decided on that ground. In Bahhcln v. Roche (5 I. R. Eq.
110), a tenant for life with power of jointuring married with-
out exercising his power. His wife had real estate, which was
settled on the husband during the joint lives of himself and his
wife, with remainder to the wife during her life. The husband,
becoming indebted, agreed with his wife and the creditor that
he would exercise the power of jointuring in her favoui', and
that she shoidd grant to the creditor an annuity for his life>
equal to the amount of the jointure, to be charged on her estate
and to become payable on the death of the husband. This was
done, and was held to be a valid appointment of the jointure.
In Aleyn v. Bekhier (1 Eden, 132), the power was executed
FRAUDULENT APPOINTMENTS. 435
after mamage. It is to be observed, however, that in this case
the bill contained a submission to pay the jointure so far as the
power was executed hoiui fide for tliat purpose, and only sought
relief against the oilier objects of the appointment. However, '
V.-C. AVood says, that in the case of a power to jointure,
nobody is interested but the one party, the jointress {sed qu.) ;
and therefore, if the charge be raised under a corrupt bargain,
or one by means of which some benefit is to be Lauded over to
the husband, the Com-t will, and it has done so in several cases,
sever the appointment and hold it to be good to the extent to
which the jointress is entitled, but will hold it to be bad with
reference to the corrupt and improper use that may be made of
the surplus. He remarks, however, on the difficulty of recon-
ciling this with the general rule, but agrees with Lord St.
Leonards (Pow. 612) that the doctrine as to jointm-es is not
likely to be now distm-bed (Kay, 259). In Whclan v. Palmer
(39 Ch. D. 648), however, where under a jointuring power an
appointment was made on a corrupt bargain with the jointress
to provide thereout for a stranger, the whole appointment was
held bad by Kekewich, J., as a fraud on the power.
Where the subject-matter of the power is in existence, and the Second class
donee of the power has merely to select the objects or to dis- ° ^ ^^^*
tribute the fund among them, an appointment to one object,
which is for any reason fraudulent, does not necessarily vitiate
appointments to other objects. If the particular appointment
which is fraudulent is one complete independent act, other ap-
pointments to other objects, although made by the same deed,
will not be affected. In the words of Lord Hardwieke (Ambl.
235), "Fraud will affect only so far as it extends;" but the
bounds between the good and the bad must be clearly defined,
in order that part of the appointment may prevail.
"In the case of distribution among several objects of a power,
where there is a clear right in all the parties interested in the
distribution, it is a novel thing to say that the fund is to be
considered as one gross fund, which is to be fairly apportioned
among the different persons interested, and that, to the extent
to which the donee of the power takes out of the common fund,
F f2
43i) A CONCISE TREATISE ON POWEKS.
auy portion whatever fi-om wliieli he is himself to receive a
benefit, to that extent he has diminished the common fund,
which ought to be appropriated amongst all, and having
diminished it to that extent, the Court will not permit him to
have any further power over it, but wdll consider tlie right of
the other parties to be determined as from that moment, the
object of the donor being to have a fair and equal distribution
of it. All the cases that have happened have been cases con-
fined expressly to the mode of dealing with those shares which
have been taken out of the common fund by means of the cor-
rupt bargain. I find no case applying at all to the balance of
the fund which remains after that share has been so taken out.
The Com-t has said, that share at least we will bring back : and
all the cases have gone to that extent and no further. There is
no decided case in which a father, having power of making a
distribution among eight or nine children, having made a cor-
rupt bargain with one of those children, the appointments to
the other children have therefore been set aside" {per V.-C.
Wood, Rotcley v. Rowley, Kay, 261).
In that case, a husband and wife lived apart, and the wife
had the care of one of their two younger childi^en. The husband
being desu-ous of raising money by mortgage of his settled
estates, and being unable to do so on account of the existing
charges thereon, applied to his wife to postpone her pin-money
and jointure annuities to his proposed mortgages. The wife
consented, provided that the husband would exercise a power of
appointment which he had over a sum of 30,000/. in favour of
his younger children, to the extent of appointing 5,000/. to the
child under her care. He did so, and by a similar deed dated
the next day, reciting the former appointment, he appointed the
rest of the fund to his only other younger child. It was held
that, although the bribe to the husband would affect the validity
of the appointment of the 5,000/., yet that the appointment of the
25,000/. was not so connected with the former appointment as to
be also invalid ; nor, indeed, was tlie motive for the latter ajopoint-
ment the same as in the former ease, for, instead of being an
inducement to the wife to consent to the proposed arrangement,
FRAUDULENT APPOINTMENTS. 437
the second appointment, if revealed to her, would prohahly have
prevented her concurring and postponing her pin-money and
jointure ; (and see ILirrition v. liandally 9 Ila. 307).
An appointment of a gross sum to one object ma}- be upheld "^Tion single
as to part, if the evidence is such as to enable the Court to are eeverable.
distinguish what is attributable to a proper from what is
attributable to an improper purpose.
In ropham v. Duke of Portland (1 D. J. & S. 517; 11 II. L.
C. 32), the donee of a power of appointing portions among his
younger children appointed a double share to a younger child
without previous communication with him. But it appeared
from tlio instructions for the appointment, that its purpose as to
half of the double share was not authorized by the power. It
was held that such purpose vitiated the appointment as to the
moiety only. L. J. Turner (p. 572), said tliat the general rule
(that where an appointment is made for a bad purpose, the bad
purpose affects the whole appointment) applied to cases in which
the evidence did not enable the Court to distinguish what is
attributable to an unauthorized from what is attributable to an
authorized purpose. But if the evidence enabled the Court to
make the distinction, the foundation on which the rule rests,
viz., the impossibility of distinguishing what is attributable to
one purpose from what is attributable to another, wholly failed,
and the general rule could not appl}-.
In RanVnHj v. Barnes (33 L. J. Ch. 539 ; 12 W. R. 5G5), the
donee of a power of appointment among children appointed two-
sixths to a married daughter, with a view of enabling the
daughter's husband, with one-half of the appointed fund, to pay
a debt which he had incurred on account of his wife's brother,
an object of the power. The appointment was held invalid, but
only as to one moiety.
The third class of cases mentioned by V.-C. Wood (viz., where Third class
the subject-matter of the appointment has both to be called into ° '^^^^^'
existence and to be distributed) will be subject to the rules above
stated, according to the circumstances of each case. Thus, imder
a power of raising and exclusively appointing 10,000/. to children,
if the whole sum was raised and appointed on a coiTupt bargain,
438 A CONCISE TREATISE ON POWERS.
it would be void as well as to the raising as to tlie appointment.
But if part only were corruptly appointed, the taint in that part
would not vitiate a good appointment of the rest (as before
stated), and it follows that the direction to raise would not be
invalid as to the whole sum, but only as to so much thereof as
was improperly appointed {see post , "Powers of Charging").
Fraudulent 1,3. It is well settled (see ante, p. 15) that limited powers may
rclc3rSGS
so-called. be efPcctually and absolutely released, so that the releasor cannot
afterwards change his mind and appoint {Smifh v. F/ionmcr, 17
L. J. Ch. 145). In Cunynghame v. Thurlow (1 E. & M. 436, n.),
a fund was limited to a father for life with remainder to his
children in such shares as he should appoint, and in default of
appointment to the children equally. The father released his
power as to a part of the fund so as to vest it in himself as the
personal representative of a deceased son. V.-C. Shadwell,
although of opinion that the power was extinguished by the
release, refused to give present effect to the release so far as it
operated to vest a share of the fund in the father. It is difficult
to see what jurisdiction the Yice- Chancellor had to refuse to
give effect to the rights of the administrator, or what useful
purpose was served by retaining the fund. The case has been
often doubted ; and in 1868, the late Y.-C. Wickens, when at
the bar, advised that in his opinion the case was not a binding
authority, although it would probably be necessary to go to the
Com-t of Appeal to overrule it. It was tacitly not followed in
Smith V. Houhlon (26 B. 482), where the donee of an exclusive
power of appointment among children over a fund which, in
default of appointment, was limited to them equally, was bene-
ficially entitled, in default of any appointment by himself, to
one-third of the fund as representative of a deceased child. He
assigned the said third share to his mortgagees and released his
power. It was held that the power was effectually released,
and the rights of the parties consequent thereon were declared.
And it has now been held by the Court of Appeal {Re Radcliffe,
(1892) 1 Ch. 227), that where the administrator, by his counsel
at the bar or otherwise, releases his life interest, he is entitled to
be paid the share which thereby falls into possession. Inasmuch
FRAUDULENT APPOINTMENTS. 439
as the administrator who asks for immediate payment necessarily
gives u\^ the life interest which exists only so long as the trust
property remains with the trustees, this decision in effect over-
rules Cutiynrjhame v. Thurloic. Indeed, it may be doubted
whether there can be such a thing as a fraudulent release : it
might very well have been held that limited powers, especially
if testamentary only, could not be released at all (see V.-C.
Kindersley's judgment in Coffin v. Cooper, 2 Dr. & Sm. 3fi5),
but the contrary is well settled, and the release of powers has
now been authorized by the legislature (Conveyancing Act,
1881, 8. 52, sub-s. 1) ; and the reasons for saying that a release
is fraudulent are really reasons for saying that the power cannot
be released at all.
It may, however, well be that if the Court is called upon to
exercise its judicial discretion in other respects {e.g., under sect.
39 of the Conveyancing Act, 1881), it may take into considera-
tion the object of the release and refuse to assist in giving effect
to it {Be Little, Harrison v. Harrison, 40 Ch. D. 418).
It is of course clear that the persons entitled to a reversionary
interest, and to the life estate preceding it, being all sni Juris,
can combine so as to say that, before the time limited by the
settlement comes, the trustees shaU pay over the trust fund
{Anson v. Potter, 13 Ch. D. 141). In such a case, however, the
trustees must see that all duty (if any) payable on the cesser of
the life interest, is paid before they part with the funds.
440
A CONCISE TREATISE ON POWERS.
CHAPTER XI.
DELEGATION AND SURVIVORSHIP OF POWERS.
PAGE
1. Bclegatits non potest delegare . . 440
2. Powers to do merely ministerial
acts may he delegated 445
3. No delegation in cases of abso-
lute oioiership 44G
4. Does a power to mortgage autho-
rize a mortgage with a power
of sale? 447
5. Invohtntary delegation : bank'
ruptey : judgments : lunacy.. 450
PAGE
6. Survivorship of porvers 452
Distinction betiveen powers and
trusts ib.
7. Powers given to persons named. . 454
8. Powers given to several as a
class 456
9. Powers annexed to office 457
10. Powers arising by implication . . 4G1
11. Provisions of Conveyancing Acts ib.
Delegation 1. In considering the delegation of powers, the distinction
Ijetween powers amounting to absolute ownership, powers
implying personal discretion, and powers to do acts merely
ministerial, must be borne in mind.
In Combes' Case (9 Eep. 75), the things which a man cannot
do by attorney, i. c, the acts which he cannot empower another
to do for him, are considered. " If a man has a bare authority
coupled with a trust, as executors have to sell land, they cannot
sell by attorney : but if a man has authority as absolute owner
of the land, there he may do it by attorney. . . . Also there is
a difference betwixt a general absolute power and authority as
owner of the land, as aforesaid, and a particular power and
authority (by him who has but a particular interest) to make
leases for life or for years. And therefore if A. be tenant for
life, the remainder in tail, &c., and A. has power to make leases
for twenty-one years, rendering rent, &c., he cannot make a
lease by letter of attorney by force of his power, because he has
but a particular power which is personal to him, and so was it
resolved in Lady Gresham's Case (24 Eliz.), by Wray and
Anderson, C. JJ."
DELEGATION. 441
The rule is that
A i)owcr involving the exercise of personal DeUgatm >ion
potest delegare.
discretion by the donee cannot i)e delegated ;
delegatus non potest delegare (Sug. Pow. 179).
The attempted delegation of such a power is a mere nullity,
the insertion of which in no wa}' affects the validity of estates
or interests limited in default of its execution ; for, as the dele-
gated power cannot be effectually exercised, the estates or in-
terests in default of its exercise remain indefeasible. But Trustees may
. IT- consult their
trustees do not, of course, delegate their powers by consulting beneficiaries
with experts, or with their beneficiaries, and by allowing their °^ ^^^^
arguments to influence their conduct. Their duty is to exercise
their discretion, and to put themselves in the best position
possible for the piu'pose of exercising that discretion. Trustees
may freely discuss with the beneficiaries the reasons for and
against a particidar decision, without running the risk of being
held to act against their own judgment, if they should in the
end disregard objections to which they had thought it right in
the first instance to direct attention {})er Lord Selbome in
Fraser v. Murdoch, 6 Ap. Ca. at p. 864).
In Ingram v. Ingram (2 Atk. 88), A. had power under a
settlement to dispose of an estate in such proportions as he
should think fit among the issue of his marriage. B}' his will
he delegated this power to his wife to exercise as she should
think fit, "with a gift over in default of appointment. The
power was held to be exerciseable by the husband only, and not
in its nature transmissible or delegatory to a tliird person :
the attempted delegation was expunged, and the remainders
over in default of the execution of the delegated power took
effect.
In ChcHtcr v. Chadicicl; (13 Sim. 102), power was given to A.
to appoint among his children in such proportions, &c., as he
should think fit, and A. appointed by his will that his -wife
should receive the dividends dui-ing her life and apply the same
in the exercise of her sound discretion for the best interest and
442 A CONCISE TREATISE ON POWERS.
advantage of his cliildi-en ; this was held not a good execution ;
(and see Alexander \. Alexander, 2 Ves. sen. 640; and Attorney-
General \ Berr)/mn)i, cited ibid. 643).
In Carr v. Atkinson (14 Eq. 397), the donee of a power of
appointment among issue appointed a life interest to A., a child,
and then purported to give a power to that child to appoint a life
interest to any husband with whom she might intermarry, and
subject thereto, appointed the corpus of the property to the chil-
dren of A. The Master of the Rolls said that the power to
aj)point in favour of the husband failed, being a delegated power
which could not be given by the person who was entitled to exer-
cise the fii-st power, and the will was to be read as if the words
relating to it formed no part of it, and the construction of the
rest of the will was not affected by it. And it makes no differ-
ence whether the objects of the delegated power are or are not
objects of the original power {Williamson v. Farwell, 35 Ch. D.
128, 141). It is the delegation which is objectionable in itself,
and it is immaterial to whom or in whose favour the attempt to
delegate is made ; (and see Webb v. Sadler, 8 Ch. 419 ; Stock-
bridge V. Stor//, 19 W. R. 1049; Burnaby v. Baillie, 42 Ch. D.
282, ante, p. 269).
The limits and applicability of the maxim were considered by
the Court of Appeal in De Bussche v. Alt (8 Ch. D. 286) (a case
of agency); and at p. 310 it is said: "As a general rule, no
doubt, the maxim ' Delegatus non potest delegare ' applies so as to
prevent an agent from establishing the relationship of principal
and agent between his own principal and a third person ; but
this maxim when analysed merely imports that an agent cannot,
without authority from his principal, devolve upon another
obligations to the principal which he has himself undertaken to
personally fulfil ; and that, inasmuch as confidence in the par-
ticular person employed is at the root of the contract of agency,
such authority cannot be implied as an ordinary incident in
the contract. But the exigencies of business do from time to
time render necessary the carrying out of the instructions of a
principal by a person other than the agent originally instructed
for the purpose ; and where that is the case, the reason of the
thing requires that the rule should be relaxed, so as, on the one
DELEGATION. 443
band, to enable tbe agent to appoint wbat bas been termed a
* Bub-agent ' or ' substitute ' (tlie latter of wliioli designations,
although it does not exactly denote the legal relationship of the
parties, we adopt for want of a better and for the sake of
brevity) ; and, on the other hand, to constitute, in the interests
and for the protection of the principal, a direct privity of con-
tract between him and such substitute. And we are of opinion
that an authority to the effect referred to may and should be
implied, where, from the conduct of the parties to the original
contract of agency, the usage of trade, or the nature of the
particular business which is the subject of the agency, it may
reasonably be presumed that the parties to the contract of agency
originally intended that such authority should exist, or where, in
the course of the employment, unforeseen emergencies arise which
impose upon the agent the necessity of employing a substitute."
It must, however, be remembered that these observations apply
to the case before the Court, /. f., a case of agency for the sale
of a ship : aud it must not bo assumed that a trustee, who was
under the necessity of going abroad on business or for health,
would be thereby justified in delegating the execution of his
trust to anyone else.
A person whose consent is required to the execution of a Delcjration
power cannot, by a general power of attorney given to another coiJsenr ^
to consent for him to any deed which the attorney shall think
fit, effectually delegate his power of consent : but the execution
of the power will be altogether void {Hmcldns v. Kenq), 3 East,
410).
But it seems that a trustee in England, entrusted T\dth the Exception.
management of property abroad, may execute such trust by
attorney, without special authority : the exception arising out of
the necessity {Stuart v. Norton, 9 W. R. 320).
But the rule that prohibits a trustee fi'om buying from him- Trustee for
self is not such a necessity as will authorize the delegation of deWato^in
his power to liis co-trustees. In Biilteel v. Lord Ahinger (6 Jur. °^^^' ^"^"7
410), one of three trustees, knowing that his son was in treaty estate.
for the piu-chaso of the trust estate, A\Tote to the acting trustees
that he would not take any interest, either directly or indirectly,
444 A CONCISE TREATISE ON POWERS.
in the matter. The acting trustees thereupon contracted to sell
to a third person. In a suit for specific performance, the Court
held that the acting trustees had no authority to enter into the
contract ; and it was also said that the third trustee could not
delegate to his co-trustees an authority to sell to his son, without
reserving to himself a veto upon the contract.
Po-wcr of A corporation with no express power of electing corporators
corporation toi .,., , ,, -iix
deleo-ate. ^^^ ^^ implied power to secure perpetual succession by voluntary
elections ad libit ion ; and it is competent for them to delegate
this power to a select j)art of themselves ; but they cannot
delegate it to a stranger {E. v. Bird, 13 East, 367) ; and the
majority of such selected members can, if the meeting be duly
summoned, bind the minority (it. v. Ilondaij, Cowp. 530 ; R. v.
Vnrlo, ib. 248; Smyth v. Barley, 2 H. L. C. 789).
Towers under Under sect. 50 of the Settled Land Act, 1882, the powers
under the Act of a tenant for life are not capable of assignment
or release, and do not pass to a person as being by operation of
law or otherwise an assignee of a tenant for life.
Cases of trusts for sale, as contrasted with powers of sale, must
be distinguished. As to the former, see Dart, V. & P. 6th ed.
682 ; and Conveyancing Act, 1881 , s. 30, amended as to copyholds
by 50 & 51 Vict. c. 73, s. 45.
Power of There cannot usually be much doubt whether a power involves
requires ^^^ exercise of discretion or not : it may be observed, however,
discretion. ^|^^^ ^ power of leasing is a trust power requiring discretion in
its exercise. In the execution of the duty or office of granting
leases, much judgment is required to be exercised ; the fitness
and responsibility of the lessee, the adequacy of the rent, the length
of term to be granted under the circumstances, and the nature
of the covenants, stiimlations, and conditions which the lease
should contain, are matters requiring knowledge and prudence.
The power to lease may be a trust power in the sense of its
being the duty of the trustee to avail himself of it under proper
circumstances ; but it is to be exercised by a person selected for
the purpose, and not by any other person [per Lord Westbury
in RoUon v. FlirjM, 4 D. J. & S. 614). The same remarks
apply to some extent to powers of sale.
DELEGATION. 445
Powers operating under the Statute of Uses must be strictly Powers ope-
rating uuder
construed, and must be executed by the person named. One of the Statute of
the cardinal principles of tho law of uses is this, that a new use ^^'
will not arise unless the conditions and terras on which it is to
come into being are strictly followed. The Court has no power
to alter the effect of a settlement made under the statute. If
an estate has been once settled in a course of legal devolution
under the statute, tho only method (other than the exercise of
the statutory powers) by which those uses can be abrogated is
by the exercise of a power reserved in the settlement of revoking
those uses : such a power is a power in derogation of what has
been already done, and must be strictly pursued. " Where
there is a conveyance by lease and release to uses, with power to
alter the uses by an instrument, the terms and limitations of
which are prescribed by the general law, the new use will not
arise except under the very circumstances in which it is con-
tracted that it shall arise" {j^er Lord Eldou, 21' Queen v. Farquhat^
11 Ves. 475).
Accordingly, a power of sale and of limiting new uses in a
settlement given to A. and B. and the survivor of them, and the
executors and administrators of such survivor, could not be
exercised by a trustee appointed by the Com-t before Lord
Cranworth's Act (23 & 24 Vict. c. 145, s. 27) {Newman v. Warner,
1 Sim. N. S. 457 ; but see Bvassey v. Chalmers, 4 D. M. t'^c Q-.
528; and Conveyancing Act, 1881, s. 33).
2. A power to do an act merely ministerial, and in- Power to do
volving no personal discretion, may be delegated, ministerial.
Lord St. Leonards (Pow. 180) says that it has been contended
that a donee of a power cannot execute a deed of appointment
by attorney : but the cases do not authorize the position. They
merely establish that the donee cannot delegate the confidence
and discretion reposed in him to another. "Where the deed of
aj)pointment is actually prepared, or the donee points out the
precise appointment which he is desirous should be made, there
no confidence, no discretion, is delegated. The appointment is
446 A CONCISE TREATISE ON POWERS.
in every respect an exercise of liis own judgment ; and there
cannot be any reason why he should not he permitted to execute
the deed of appointment by attorney. The contrary doctrine
woidd lead to great inconvenience. Where, however, a par-
ticular mode of execution is requii-ed, it would he difficult to
support an execution by attorney. This possible exception would
appear to be met by 22 & 23 Yict. c. 35, s. 12 {ante, p. 134), so
far as regards appointments by deed since 13th August, 1859.
Accordingly, a trustee with the legal estate may appoint an
attorney merely to pass that legal estate, that being an act
which involves no discretion. In Attorney-General v. Scott
(1 Yes. sen. 413, 417), twenty-five trustees had power to elect a
clergyman : the Lord Chancellor said that they could not make
proxies to vote : but if the choice was regularly made, they
might make them for the pm^pose of signing the presentation.
In O^'en v. Harman (29 L. J. Ch. 307), trustees had power to
consent to the substitution of other estates for the settled estates :
they were made parties to a deed for carrying out such sub-
stitution, and saw and approved of the draft thereof. The
execution of such deed by one of them by attorney was held
vahd. This point is not noticed in the report of the case in 1 D.
F. & J. 253, nor is it expressly mentioned in the judgment of
the Com-t.
Guardiansliip And a father may exercise the power given him by 12 Car. 2,
c. 24, s. 8, of disposing by will of the custody of his child, by
giving authority to a surviving guardian to nominate a person
in the place of one who has died {Li b. Parnelt, L. E. 2 P. &
D. 379). And under 49 & 50 Vict. c. 27, s. 3, the mother has
power to appoint a guardian or guardians of her infant children
in certain cases (see Be G , 1892, 1 Ch. 292).
Powers 3. The maxim delegatus non potest delegare does not
equivalent to .
ownership. ^PpJ-J ^o tlio caso 01 a general power equivalent
to absolute ownership.
If a man has a power of sale as absolute owner of the land,
he may sell by attorney {Conibeii cascj 9 Rep. 75). It is clear
DELEGATION. 447
that when a person has an absoluto power of appointment, ho
may appoint to certain persons or classes of persons in such
shares as another person shall nominate ( White v. Wi/son, 1
Drew. 304). So, where an estate stands limited to such uses as
A. shall appoint, an appointment by A. to such uses as B. shall
appoint will be valid and ojffectual to pass the legal estate (Sug.
Pow. 195).
Hence, as an executor is regarded, both at law and in equity, Powers of
as the absolute owner of the testator's personal property, it has ijcrsoualty.
been hold that an executrix may assign and give a valid power
of attorney to collect debts duo to the testator {Earl Vane v.
Riyden, 5 Ch. 663).
In Russell v. Flaice (18 Beav. 21), the Master of the Rolls
held that a mortgage of leaseholds by an executor or adminis-
trator might well contain a valid power of sale — such a power is
not to be considered as the delegation of a power entrusted to
the executor, but as the creation of a new power to sell, not for
the benefit of the persons interested in the testator's estate, but
for the benefit of the person interested in the mortgage, that is,
a power to render the mortgage effectual. The right to create
this power is incidental to the authority of the executor to
mortgage. This may be considered as overruling Sanders v.
Richards (2 Coll. 568).
In Cruiks/tank v. Daffin (13 Eq. 555), an executor borrowed
money for executorship purposes from a building society, and
gave a mortgage of his testator's leaseholds with a power of sale
and the usual incidents of a building society mortgage ; it was
held that a good title could be made by the mortgagees under
this power. But where an administrator thirty-six years after
the death of the intestate raised money for the alleged purpose
of repairing leaseholds, but the Court considered that the money
was in fact raised for the beneficial enjoyment of the adminis-
trator, and that the mortgagee had notice thereof, the mortgage
was held bad {Ridrlfs v. Lcicis, 20 Ch. D. 745. The head-note
in the report of this case seems too widely expressed).
4. It was at one time doubted whether a power to raise Does a power
money by mortgage authorizes the donee to give a mortgage authoSa^
448 A CONCISE TREATISE ON POWERS.
mortgage with a power of sale : but the balance of authority and con-
r^wer'oTliLer "venience is in favoiu' of the insertion of the power of sale. In
the absence of any expression of a contrary intention, it may be
fau'ly said that the creator of the power meant that the mort-
gage which he authorized should contain all usual and necessary
powers : amongst these a power of sale is most important : the
objection that the power of sale in a mortgage is a delegated
authority is thus answered ; for it comes not from the donee,
but from the donor of the power to mortgage. However, in
Clarke v. Royal Panopticon (4 Drew. 26), the council of a
company were authorized by a general meeting to raise money
by mortgage : the articles of association directed that money
should not be raised by sale or mortgage without the authority
of a general meeting, V.-C. Kindersley held that the council
had no power to give a mortgage containing a power of sale.
He said that, although a special power to sell might authorize a
mortgage, yet a power to mortgage does not com2:irise a power
to give authority to sell ; and that if a special power, involving
an exercise of personal judgment is given to trustees, it is not
competent to them to delegate that power : and he said that if a
power to mortgage comprised as an incident a power to give
authority to sell, then it would follow that a trustee, who has a
power to mortgage, has a power to sell, or, at least, can delegate
to another a power to sell. He further said that in 1857 it was
by no means the universal practice to treat a power of sale as a
necessary incident to a mortgage, but he admitted that it was
much more usual then than it was thirty or forty years before ;
(and see Dvahe v. Whitmore (19 L. T. 0. S. 243), where Y.-C.
Parker in 1850 declined to permit the insertion of a power of
sale in a mortgage-deed to raise money ordered to be raised by
the Court.)
But although perhaps a power of sale is not so necessary an
incident to a mortgage as to make it a breach of trust in a trustee
[Farrar v. Barraclourjh, 2 Sm. & G. 231), or dereliction of duty
in an attorney [Bailey v. Abraham, 14 L. T. 0. »S. 219), to take
a mortgage without such a power, yet a power of sale in default
of payment is now " regularly made a part of every mortgage,
DELEGATION. 449
and, as such, is inserted by tlie draughtsman without special
instructions " (Davidson, ii. pt. 2, 66, 4th ed.). It is moreover for
tlie mortgagor's henefit : for it increases tlie security, and therefore
makes the loan more readily ohtainahle. It was given to the
mortgagee by statute 23 & 24 Yict. c. 145, and is now given by
the Conveyancing Act, 1881, s. 10; and at no time could the
mortgagor have escaped foreclosure, (or sale in lieu thereof
under 10 & 16 Yict. c. 86, s. 48, and Conveyancing Act, 1881,
s. 25,) in case of default in payment.
The later authorities are all in favour of the insertion of a
power of sale. In Br Chninurh Trusts (8 Eq. 569), Y.-C.
Malins declined to follow the authority of Clarke v. Royal
Panopticon. In the case before him, a testator devised an estate
to trustees, and directed them to raise a sum of money by mort-
gage of the estate in such manner as they should think fit.
The Yice-Chancellor was of opinion that the trustees were
authorized to give a power of sale in their mortgage, that such
a power is a necessary incident to a mortgage, and that when a
testator says that money is to be raised by mortgage, he means
it to be raised in the way in which money is ordinarily raised
by mortgage, and therefore that the mortgage might contain
what mortgages in general do contain, a power of sale.
In Cook v. Baicsoii (29 Beav. 128), the Master of the Eolls, in
holding that a power to mortgage real estate did not authorize
a direct sale, said (p. 128), " It is true that a power to mortgage
includes a power to give to a mortgagee all such remedies as are
proper to be given to him so as to mortgage the estate on the
best terms, and authorizes giving to the mortgagee a power of
sale." And in Bridges v. Longman (24 Beav. 27), where a
settlement empowered trustees to raise money by sale or mort-
gage, he held that no objection could be taken before him that
the power of mortgaging was executed by means of a mortgage
which contained a power of sale, "because such a power is
incident to the power to mortgage, unless expressly excluded. " ;
(and see Bennett v. Wi/ndliam, 2'3 B. 521).
In Selhi/ V. Cooling (23 B. 418), the same judge authorized
the insertion of a power of sale in a mortgage of an infant's real
F. G G
450
A CONCISE TEEATISE ON POWEJiS.
Where pur-
chase deed is
ordered to
stand as a
mortg'age
only.
InvoUmtary
delegation.
Bankruptcy.
Judgments
estate made by order of tlie Court, with tlie qualification " if tlie
mortgagee should require it."
But where a purchase deed is set aside by the Court on the
ground of the fiduciary relation between the parties, and ordered
to stand as a mere secm-ity for the money advanced, the Court
will not import into the transaction a power of sale ; for the
property might thereby be lost by a sale from the first purchaser
to a second [Pearson v. Benson, 28 B. 598).
5. The Bankruptcy Act, 1869 (32 & 33 Vict. c. 71, s. 15,
sub-s. 4), enacted, and the Act of 1883, s. 44, enacts, tliat tlie
property of the bankrupt divisible among his creditors shall
comprise — •
The capacity to exercise and to take proceedings for exercising
all such powers in or over or in respect of property as might
have been exercised by the bankrupt for his own benefit at the
commencement of his bankruptcy or before his discharge, except
the right of nomination to a vacant ecclesiastical benefice. By
s. 17 of the Act of 1869, and s. 54 of the Act of 1883, such
property shall, on the appointment of a trustee, forthwith pass
to and vest in the trustee appointed ; and by s. 25 of the Act of
1869, and s. 56 of the Act of 1883, the trustee shall have power
to exercise any powers the capacity to exercise which is vested
in him under the Act, and to execute all powers of attorney,
deeds, and other instruments expedient or necessary for the
purpose of carrying into effect the provisions of the Act. But
sub-s. 5 of s. 1 of the Married Women's Property Act, 1882,
does not enable the trustee in bankruptcy to exercise the
general powers of a married woman {Ex parte GilcJirist, Re
Armstrong, 17 Q. B. I). 521). That sub-section only subjects
her separate property to the bankruptcy law ; and power is dis-
tinct from property.
Powers exerciseable by will only do not pass to the trustee :
for such a power is purely personal : no other man can make
my will (Sug. Pow. 188; Smith v. Wheeler, 1 Ventr. 128; Nichoh
to Nlxey, 29 Ch. D. 1005).
By 1 & 2 Vict. c. 110, s. 13, it is provided, that a judgment
entered up against any one shall operate as a charge upon all
DELEGATION. 451
lands, tenements, rectories, advowsons, tithes, rents, and here-
ditaments (including copyholds), over ^vhi(•h lie sIkiH liave at
the time of entering up such judgment, or afterwards, any
disposing power which he might, witliout tlie assent of any
other person, exercise for his own benefit : and the creditor is
to have the same remedies as if the dehlor liad power to cliarge
the hereditaments, and had agreed to do so in writing, to the
extent of tlie judgment debt and interest ; (and see 23 & 24 Vict.
c. 38, and 27 & 28 Vict. c. 112).
The Lunacy Act, 1890, s. 120, enacts that " tlie judge may Beneficial
by order autliorize and direct the committee of the estate of a lunatics,
lunatic to do all or any of the following things : — (h) execute
any power of leasing vested in a lunatic having a limited estate
only in the property over which the power extends ; (1) exercise
any power or give any consent required for the exercise of any
power where the power is vested in the lunatic for his own
benefit, or the power of consent is in the natm'e of a beneficial
interest in the lunatic."
Sect. 128 enacts, " Where a power is vested in a lunatic in the
character of trustee or guardian, or the consent of a lunatic to
the exercise of a power is necessary in the like character, or as a
check upon the undue exercise of the power, and it appears to
the judge to be expedient tliat tlie power shoidd be exercised or
the consent given, the committee of the estate, in the name and
on behalf of the lunatic, under an order of the judge, made
upon the application of any person interested, may exercise the
power or give the consent in such manner as the order directs."
Sect. 129 enacts, " Where under this Act the committee of
the estate, under order of the judge, exercises, in the name and
on behalf of the lunatic, a power of appointing new trustees
vested in the lunatic, the person or persons who sliall, after and
in consequence of the exercise of the power, be the trustee or
trustees, shall have all the same rights and powers as he or they
would have had if the order had been made by the High Court ;
and the judge may in any such case, where it seems to him to
be for the lunatic's benefit and also expedient, make any order
respecting the property subject to the trust which might have
G G 2
452
A CONCISE TREATISE ON POWERS.
Distinction
between
powers and
trusts.
been made in the same ease imder the Trustee Act, 1850, or
any Act amending the same, on the appointment thereunder of
a new trustee or new trustees,"
In i?r JS^rn'// (54 L. T. 290), a mamage settlement which
gave a life interest to the husband, subject to an allowance for
pin-monej to the wife, gave to the trustees a power of advance-
ment to the children with the consent of the parents. The
husband became a Ixmatic ; and the Court held that there was
jurisdiction, under sect. 137 of the Lunacy Act, 1853, to autho-
rize the committee to consent to an exercise of the power of
advancement. But the Court cannot release a power on behalf
of a lunatic (7?^ Hirst, W. N. (1892) 177).
6. The survivorship of powers may be conveniently considered
in connection with the delegation of powers.
In considering questions of delegation and survivorship of
powers, the distinction between powers and trusts must be
borne in mind. " Powers are never imperative ; they leave
the act to be done at the will of the party to whom they are
given. Trusts are always imperative, and are obligatory upon
the conscience of the party interested " (Wilmot, 23). Apart
from statute, a naked power to two will not survive without
express words or necessary implication : the reason being, that
where the testator has disposed of his property in one direction,
subject to a power in two or more persons enabling them to
divert it in another direction, the property will go as the
testator has first directed, unless the person to whom he has
given the power of controlling the disposition exercise that
power : i. c, the previous estate is not to be defeated unless the
power be exercised ?)wdo et forma. But if a testator gives his
property, not to one party subject to a power in others, but to
trustees upon special trusts, with a direction to carry his pur-
poses into effect, it is the duty of the trustees to execute the
trust : thus, if the direction be to raise a sum of money, the
estate is thereby at once charged, and it becomes the duty
of the trustees to raise the charge so created. If an estate be
devised to A. and B. in trust to sell, and thereby raise such a
sum, it is a novel argument that after A.'s death B. cannot sell
the estate and execute the trust {Laney. Debenham, 11 Ha. 192;
SURVIVORSHIP OF POWERS. 453
Re Morton and Hdllvtt, 15 Cli. D. 143 ; Blg(j>i v. Pmcock, 22
Ch. D. 284 ; Re Cunningham and Frai/Iinrj, (1891) 2 Ch. 567 ;
and as to trusts, see Lewin, 077 rf m/.; Coolce v. Crairford, 13
Sim. 91; Mortimer v. Ireland, 11 Jm\ 721 ; 6 lla. 196; Uall
V. May, 3 K. & J. 585 ; Tit ley v. WoMenholme, 7 B. 425 ;
Dart, V. & P. 6th ed. 682).
Mere powers as distinguished from trusts are strictly con-
strued, and can only be exercised by the persons who are, either
expressly or by reference, designated as donees of the power.
Thus a bare power to A. and B. and their heirs is exerciseable Power to A.
after the death of A. by B. and the heir of A. " It is to be their heirs,
considered as a tenancy in common. It is equivalent to saying,
with consent of both while they live, but when one dies, 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 heir :
and the loss of both by the heirs of both " {Man.^cU v. Mansell,
Wilm. 51).
Such a power cannot be exercised after the death of A. Not exercise-
without the concurrence of his heir. In Toicnscnd v. Wilson (1 8ur\dvor
B. & Aid. 608), a power of sale was given to three trustees and ^ ^^^'
their heirs ; the trustees were mere trustees to preserve, and had
no estate in the land ; the purchase-money was directed to be
paid to the trustees or the sui'vivurs or survivor of them, or the
executors, administrators, or assigns of such survivor ; and there
was a power of appointment of new trustees. One trustee died:
it was held that the survivors alone could not sell.
In Uall V. Dewes (Jac. 189), Lord Eldon said that he did not
agree with the decision in Tou-naend v. Wilson, but he followed
it so far as to refuse to enforce specific performance against a
purchaser in the case before him. The power there was con-
tained in marriage articles : a settlement was afterwards made
in pursuance of, but not in accordance with, the terms of such
articles. The power of sale was with the consent of three
trustees, their heirs, or assigns : receipts were to be given by the
three trustees, or the survivor, his executors, or administrators,
and there was a power of appointing new trustees. One trustee
went abroad, and a uew trustee was appointed in his place ;
454
A CONCISE TEEATISE ON PO^VERS.
Power to A.
and liis
assii'DS.
To A., his
cxenutors or
administra-
tors.
Power given
to persons
named.
anotlier died ; the survivor and the new trustee, without ap-
pointing another new trustee, and without the concurrence of
the heir of the deceased trustee, attempted to selL The Court
refused to force the purchaser to take the title.
A discretionary legal power limited to A. and his assigns is
exerciseable by the grantee, devisee, heir, or executor, as the
case may be, of A. {IToir v. IF// if field, 1 Yent. 338; Sug. Pow.
180).
In Sa/oira// v. Sfraichridr/e (1 Iv. & J. 371 ; 7 D. M. & G-.
594), a mortgage deed gave a power of sale to the mortgagee,
his heirs, executors, administrators, and assigns, with a direction
that the receipt of the same persons should be a good discharge.
It was held that the administrator of the transferee of the
mortgage, with the conciu'reuce of a trustee to whom the heir
of the mortgagee had conveyed the legal estate, could validly
exercise the power.
A power of sale, given to A., his executors or administrators,
can be well executed by an administrator dura life minore wtate
(Jlonseli V. Annsfrong, 14 Eq. 423). The limit to such an
administration is the minority of the person, but there is no
other limit : he is an ordinary administrator appointed for the
purpose of getting in and realizing the estate, and paying the
debts {Co2ie v. Cope, 16 Ch. D. 49). But where a testator gave
his executors a discretionary power to carry on his business, and
they renounced, it was held that the administrator with the will
annexed could not exercise the power {Lainhert v. Rendic, 3
N. E. 247).
7. Apart from the provisions of the Conveyancing Acts, 1881
and 1882, the rules as to the survivorship) of powers are not
perhaps quite settled, but the following appear to be the results
of the authorities : —
A bare power, given to two or more by name,
cannot be executed by the survivor.
This is not because there is anything in a power incompatible
with its surviving, but if a man says he will trust two, the law
will not say he shall trust one ; it is a joint confidence. It will
SURVIVORSHIP OF POWERS. 455
be otherwise if the power be limited to the survivor; tliat is
saying that ho will trust two as long as thoy live, and after-
wards one of them [Mamell v. MaiiscI/, Wilm. 43).
AVhero a naked power is vested in two or more nomi/uifiin,
without any reference to an office in its nature liable to survivor-
ship, as an executorship is, it without doubt would be a con-
tradiction of the general rule to allow tlio power to survive
(llarg. note, Co. Litt. 113 a.).
In Montejiorv v. Broicnr (7 11. L. C. 241), it was held that a
power of revocation to be exercised by A. and B. could not be
exercised by the survivor of them. It will be the same if the
power be merely to consent. In Attcaters v. Birt (Cro. Eliz.
856), there was a feoffment to uses, with a proviso that, on
payment of 12(L and procuring the assent of the feoifees
(reciting their names), the uses should cease. One of the
feoffees died, and it was held that the power of assenting w^is
not exerciseable by the survivors.
But the rule does not apply to the case of protectors of settle- Piotectors of
'■^ ^ „,,,,. settlements.
ments under 3 & 4 Wm. 4, c. 74, s. 32. In Bcil v. Jlolfbf/ (lo
Eq. 178), two persons were appointed protectors, and one died;
no provision was made for filling up a vacancy in the office. It
was held that the surviving protector with the tenant in tail
could effectually bar the entail. But the protectorship does not
necessarily pass with the office of trustee. In Cfarlie v. C/iam-
hcvUn (10 Ch. D. 17G), it was held that when the trustees who
were appointed protectors had all died, the tenant for life, and
not the new trustees, became protector.
Mr. Vaizey (Settlements, 348) says that this rule appears to
have boon abrogated, as regards powers contained in instruments
coming into operation after 31st December, 1881, by the
Conveyancing Act (cited 2)0st, s. 11). But Messrs. Hood &
Challis say the contrary (p. 104, 3rd ed.). If the power is
given to persons who are in fact trustees, although it be given
to them under their names, the section would appear to apply :
the sm-vivorship of the power shoidd depend not on the name
by which the donees are called, but on the fact of their- being
trustees or not.
456 A CONCISE TREATISE ON POWERS.
Power to seve- 8. If the power be given to several, not iioiuinrifiin, but as a
Till US n. cluss.
class {e. g., to " my sons "), it seems doubtful whether, after the
death of one of the number, the sm-vivors can sell. Lord St.
Leonards states the rule to be, and it is perhaps the better
opinion that it is, this —
Where the power 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
(Sug. Pow. 128, sed qu.).
In Vincent v. Lee (Co. Litt. 113 a; Cro. Eliz. 26), a testator
devised his lands to A. in tail, and if A. died without issue,
that his lands should be sold by his sons-in-law. He had five
sons-in-law at his death. One of them died ; then A. died,
leaving issue a daughter, who died without issue ; and then the
four sons-in-law sold. This was held good. This case is hardly
an authority for the rule to the extent above stated. The power
of sale did not arise until the failure of A.'s issue, and it was
not adjudged that, if one of the sons-in-law had died after such
failure, a sale by the survivors would have been good. The
reason of the decision was probably the same as in the case
mentioned by Coke immediately before (113 a), viz., that the
Icuid could not have been sold before — L e., the power did not arise
before, and the plui'al number remained. And considerable
doubt is thrown on the correctness of the rule by the case of
Decision Sykc's V. SJieeu'd (2 D. J. & S. 6). In that case a testator devised
the rule above his real estate to trustees on trust to sell, and hold the proceeds
on trusts for his children and their issue, subject to a proviso
that no sale should be made without the consent of his sons and
daughters. The testator left seven children, one of whom, a
daughter, afterwards died, and her husband became absolutely
entitled to her share. The trustees, with the consent of the
surviving children and of the husband of the deceased daughter,
put up the estate for sale. The Lords Justices held that, not-
withstanding the case of Vincent v. Lee, the title was much too
stated.
SURVIVORSHIP OF POWERS. -IST
doubtful to be forced upon a purchaser. On the other hand,
V.-C. Malins, iu Jetfn-ijH v. Marsha /I (19 W. R. 90), entirely
dissented from the decision in Si/Icci v. Sltcard. Mr. Vaizey
(p. 348) considers this rule also abrogated ; but it may be
doubted whether the sons in Sykes v. Sheard were trustees
within the meaning of the section.
9. The next rule is also doubtful ; but it seems the better
opinion that —
Where a power is annexed to an office (e. ^., if Powers
it be given to executors), all persons who nil the an office.
office can exercise the power ; but if the power
be given to persons named officially {e.y.^ to my
executors A. and B.), it is in each case a question
of intention whether the power is given to tlie
person or annexed to the office — sed qu.
In Brassey v. Chalmers (16 B. 233), the Master of the Rolls
says that it is settled by repeated authorities that when a naked
power is given to several persons it cannot be executed by the
survivors. It is a power the execution of which is entrusted to
several individual persons jointly, which can only be executed
by them all, and if one of them should die, tlie authority mil
not survive. It is also equally settled, that if the power be
annexed to the office, any persons who fill the office of executor
will have also the power which is attached to that ofiice. The
chief diificulty arises in cases where the power is given to certain
persons by name, and they are also appointed executors ; and in
these cases the proper distinction seems to be, and it is incum-
bent on the Court to ascertain in such cases, whether the power
is given to the executor or to the person.
Mr. Hargrave (Co. Litt. 113 a) conjectures that where a
power of selling is given to executors, or to persons iiomiiiatim
in that character, a surviving executor may sell : for by the
death of one executor the whole character of executor becomes
vested in the siu'vivor, and the power being annexed to the
458 A CONCISE TREATISE ON POWERS.
executors rationc officii, and the office itself surviving, the power
annexed to it should also survive ; and he cites an opinion of
C. J. Hale in favour of his view, and Kelw. 44 ; 2 Brownl. 194,
where it is said that such a power given to executors passes to
their executors and administrators. It is, however, doubtful if
this latter statement is correct (see ante, p. 93). An executor
who renounces cannot exercise the power {Attorney-General y.
Fletcher, 5 L. J. Ch. 75).
In Jenk. Cent. p. 43, ca. 83, it is said that, at Common Law,
if a man devise that A. and B. shall sell his land and makes
them executors, one cannot sell without the other, although the
latter die. But it is otherwise if he devise that his executors
sell, and afterwards names A. and B. to be his executors at the
end of his will ; for the naming them by their jiroper names
in the first instance shows personal confidence in A. and B. as
private persons. And it seems, too, that if the devise be that
A. and B., his executors, shall sell his lands, and they be named
executors at the end of the will, the survivor can sell ; for the
power (the word in the original is " interest," but this must be
a mistake, as it is clearly a power) is annexed to the office by
this repetition.
In Houell Y. Barnes (Cro. Car. 382), a man devised his lands
to A. for life, and afterwards ordered the same to be sold by his
executors thereunder named, and the moneys thereof coming to
be divided among his nephews, and he appointed B. and C.
executors. The two questions for the Court were, whether the
said B. and C. had an interest or a power ? and whether B.
could sell after the death of 0. ? And it was resolved that B.
and C. had a power, and that the surviving executor might sell.
In Crawford v. Forslum (1891, 2 Ch. 261), a legacy was
given to A. on attaining sixteen ; if she died under that age,
"the amount to remain at the disposal of my executors for
distribution to such charities as they approve of " ; and after
other legacies the testator appointed X., Y., and Z. executors,
and gave his residue to certain charities, " or such others or
additional as my executors Jierein named may select to be divided
in such proportions as they may approve of." X. renounced.
SURVIVORSHIP OF POWERS. 459
T, and Z. proved. It was held that Y. and Z. could exercise
the power.
In Bra.ssc>j v. C/iabners (4 D. M. & G. 528; 16 B. 223), a
testator gave power to sell lands to his executors therein
mentioned, with the approbation of liis trustees for the time
being, and ho appointed A. and B. executors. The Master of
the llolls thought that the power was given to A. and B.
individually, and not to them in their character of executors.
The Lords Justices, however, did not concur in this view, but
followed IIoucUy. Barnes; (and see Sug. Pow. 128; Re Cookes,
4 Ch. D. 454 ; Eaton v. Smith, 2 B. 230) .
In Bi/ani v. Byam (19 B. 58), a tenant for life was authorized
to withdi'aw a fund from settlement with the consent of the
" undersigned trustees." The Master of the Rolls thought that
the power was annexed to the office, and not given to the persons
named as trustees in their individual character, and accordingly
might be exercised by the trustees for the time being, whoever
they might be ; (and see Bartlcy v. Bartley, 3 Drew. 384).
In Dchiny v. Dclani/ (15 L. R. Ir. 55), a legacy was given to
the testator's son, if ho should conduct himself to the satisfaction
of the testator's executors. It was held that the power was
given to the executors viriute officii, and that those who proved
could approve or disapprove, although the others had not
renoimced ; (and see Dvvitt v. Kearney, 13 L. R. Ir. 45 ; Kv parte
Butcher, Be Mcllor, 13 Ch. D. 465).
In White v. Macdermott (7 I. R. C. L. 1), there was a devise
by will to A. for life, with remainder to his childi'en, and a
declaration by a codicil that the devised premises should not
descend to any child or children of A., except to such as ho
might have by such woman as he should marry with the
sanction and approval of the testator's trustees and executors.
One trustee had never acted ; and it was held that his consent
was not necessary.
On the other hand, in a note to Danne v. Annas (Dyer, 219 a). Cases con-
a case is stated, wherein A. devised that his executors should sell last rule,
his lands : one died, and the others could not sell, by the opinion
of Anderson, Windham, and lihodes. Tliis is, probably, the
460 A CONCISE TREATISE ON POWERS.
same case as Lock v. Loggin (1 And. l-l-j), wliere a testator de-
yised lands to A. for life, with remainders over in tail ; and for
default of issue to be sold by the executors. The testator died ;
then one of the executors died ; then the tenant in tail in
remainder died without issue, and then A. died. It was held
that the surviving executors could not sell. So in Anon. (Dyer,
177 a), a testator devised that A., B., and C, his feoffees, should
sell his land after his wife's death. The testator died ; then A.
died ; and then the testator's wife died. It was held that B.
and C. could not sell : " but, giiwre, if they had not been named
A., B., and C, but feoffees only ;" (and see Co. Litt. 112b;
Chance on Powers, 662 et seq.).
In Cole Y. JFade (16 Yes. 27), it was held that where a power
is of a kind that indicates a personal confidence, it must prima
facie be understood to be confined to the individual to whom it
is given, and will not, except by express words, pass to others,
to whom by legal transmission the same character may happen
to belong. But in that case the power was of a very special
nature (viz., of selecting which relations of the testator should
share in his estate), and was given to the executors on the
express ground of personal confidence. This rule really depends
on the construction of the instrument. If on such construction
the power is given to individuals who are not executors or
trustees, the 38th section of the Conveyancing Act, 1881, will
not assist. If it is given to trustees or executors, the section
applies. It will be observed, however, that the Conveyancing
Act as to disclaimer is not confined to trustees and executors
{see post , p. 462).
Powers do not And where lands are devised to trustees in fee, with powers
wliien trustees which in their execution require the exercise of j udgment and
disclaim. discretion, and the trustees disclaim the devise, so that the legal
estate descends on the heir-at-law, he cannot exercise the power,
although he holds on the trusts of the will. Such trusts and
powers are supposed to have been committed by the testator to
the trustees he appoints by reason of his personal confidence in
their discretion, and it would be wrong to permit them to be
exercised by the heir-at-law, who may be a person unknown to
SURVIVORSHIP OF POWERS. 461
the testator, or in wliom lie lias no confidence at all. A trust
which gives the trustee no other duty to discharge than simply
to clothe the equitable owTierslii]) with the legal estate may,
indeed, he performed by the hoir. It does not follow that a
trust may be performed or a trust power exercised by the heir-
at-law, because it is obligatory on the trustees of the will. It
depends on the question whether in the e.xcreiso anything has
to be supplied by the judgment, knowledge, and discretion of
the person acting in the exercise of such trust or power {per
Lord Westbury, Rohson v. Flight, 4 D. J. & S. 013).
10. If the power arises by implication, it attaches to Power which
^ ^ A ' arises by
the office, and may be exercised by the holder of implication
' "^ _ '^ eurviyes.
the office for the time being.
In Axon. (2 Leon. 220), A. devised his lands to his wife for
life, and if he should have no issue by her, then he willed that
his lands should be sold after the death of his wife and the
money distributed to three of his blood. He made his wife and
B. executors, and died. B. died and the wife sold. The sale
was held good ; although no persons were named, the executors
■were the persons to sell, and the power survived.
This decision seems untenable, however, on the grounds that
the power did not arise until the death of tlie wife {ante, p. 147),
and that the executors could not, under the circumstances, have
been intended to sell {ante, p. 70).
In Anon. (Dyer, 371, b. 3), a man devised all his lands to A.,
except his manor of 11., which ho appointed to pay his debts:
and he made two executors and died, and one executor died.
It was held that the survivor could sell ; (and see Miluard v.
il/oo/r, Savile, 72; Forbes \. Feacoel; 11 M. & W. 630; Sabin
V. Ileape, 27 B. 553).
11. By the Conveyancing Act, 1881, s. 38, it is enacted, Conv. Act,
. 1881, 8. «38»
" (1.) Where a power or trust is given to or vested m two or
more executors or trustees jointly, then, unless the contrary is
expressed in the instrument, if any, creating the power or trust,
1882, s. 6.
462 A CONCISE TREATISE ON PO^VERS.
the same may bo exercised or performed by tlie survivor or
survivors of tliem for the time being.
" (2.) This section applies only to executorships and trusts
constituted after or created by instruments coming into opera-
tion after the commencement of this Act."
It will be observed that the section extends only to executors
and trustees.
Conv. Act, By the Conveyancing Act, 1882, s. 6, it is enacted,
" (1.) A person to whom any power, whether coupled with
an interest or not, is given, may, by deed, disclaim the power ;
and, after disclaimer, shall not be capable of exercising or join-
ing in the exercise of the power.
" (2.) On such disclaimer the power may be exercised by the
other or others, or the survivors or survivor of the others, of
the persons to whom the power is given, unless the contrary is
expressed in the instrument creating the power.
" (3.) This section applies to powers created by instruments
coming into operation either before or after the commencement
of this Act."
This section is expressed in general terms, and although the
marginal note to the section is "disclaimer of power by trustees,"
this cannot affect the generality of the words of the section (see
Afi.-Gvn. V. G. E. Rail. Co., 11 Ch. D. 449, 461, 465; Clai/fhn
V. Green, L. E. 3 C. P. 511 ; Sutton v. Sutton, 22 Ch. D. 511).
Under this section a renunciation of probate has been held to
be equivalent to disclaimer {Re Fisher cdiiI RmJett, 13 L, E.
Ir. 546; and see 21 Hen. 8, c. 4 {ante, p. 89), an Act which,
being subsequent to Poyning's Act, did not extend to Ireland ;
Bedtt V. Kearney, 13 L. E. Ir. 45; Thompson v. Todd, 15
Ir. Ch. E. 337).
CHAPTER XII.
POWERS IN THE NATURE OF TRUSTS.
463
PAQK
1. Fuivcrs intermediate htlween
trusts and powers 4(J3
Gift to the objects of the pouer
implied from the poiver 4G6
2. Gift implied from gift over in
default of objects 467
3. Implied gift arises, although
donee of power has a discretion 470
4. Ko gift implied if gift over be
in default of appointment. . . . 471
5. Period of vesting, when there is
a direct gift to the objects .... ib.
6. Period of resting, when there is
no direct gift to the objects . . 474
PAOE
7. Period for ascertaining the class 475
8. The objects take equally 476
But Court adopts any rule laid
down by testator 477
9. Requisites for the creation of
a power in the nature of a
trust 478
10. Absolute gift followed by pre-
catory words 479
11. What is sufficient evidence of
intention 481
12. Uncertainty of subject 482
Trust for maintenance 483
13. Uncertainty of object ib.
1. " Where there is a mere power of disposing and it is not Powers inter-
executed, the Court cannot execute it ; but wherever a trust is tween trusts
created and the execution of that trust fails by tlie death of the ^'''^ P'"'^''"-
trustee or by accident, the Court will execute the trust. But
there are not only a mere trust and a mere power, but there is
also known to the Court a power which the party to whom it is
given is intrusted and required to execute ; and with regard to
that species of power, the Court considers it as partaking so
much of the nature and qualities of a trust, that if the person
who has that duty imposed on him does not discharge it, the
Court will to a certain extent discharge the duty in his room
and place. The principle is that if the power is one which it is
the duty of the donee to execute, made his duty b}^ the requisi-
tion of the will, put upon him as such by the testator, who has
given him an interest extensive enough to enable him to
discharge it, he is a trustee for the exercise of the power, and
464 A CONCISE TREATISE ON POWERS.
has not a discretion whether he will exercise it or not. The
Coiu't adopts the principle as to trusts, and will not permit his
negligence, accident, or other circumstances to disappoint the
interests of those for whose benefit he is called upon to execute
it" {Broicn v. Jligffs, 8 Ves. 561 ; RicJiardKon v. Chapman, 7 Bro.
P. C. 318 ; Pierson v. Garnet, 2 Bro. C. C. 38, 226 ; Bladdimi v.
Andrctc, 1 Ves. sen. 58 ; Birch v. Wade, 3 Y. & B. 198 ; Hard-
ing V. Glyn, 1 Atk. 469 ; 2 W. & T. L. C).
" Where there is a power of selection among certain objects,
and an intention manifested that the objects should not be
disappointed, — for instance, where there is a bequest to the
testator's wife for life, and after her decease to be divided or
distributed amongst such of his children as she should appoint,
— as the right to exclude some does not prevent the class from
taking in default of appointment, it would now be held, not-
withstanding the decision in Duhe of Marlborough v. Lord
Godolphin, that the children take in default of appointment,
either by implication or because the power is coupled with a
trust" {Salushurij v. Denton, 3 K. & J. 535). It is very doubtful
whether Crosding v. Crosslin g (2 Cox, 396) was rightly decided
(see Sug. Pow. 592).
In all these cases, although in terms no obligation was
imposed on the donee to exercise the power, and although in
some he had a discretion to select from the class the individuals
to take, yet as the property was given to him generally with
such a power, and his own interest was confined to his life by
plain construction, an intention was collected that the interest
beyond his own life was to vest in the objects, and that he,
having a sufficient estate for that purpose, and a power, was
bound to give effect to that intention ; and his neglect to
exercise his discretion, or to execute his power amongst the
objects — where none was to be excluded — was not permitted
to operate to the detriment of his cestui que trust : for such the
objects of a power in the nature of a trust really are, although
the person to whom the power is given has more than the
authority of a common trustee (Sug. Pow. 590).
There are two classes of cases which fall under this head —
POWERS IN THE NATURE OF TRUSTS. 40'
(1) "Where the testator has given an absolute interest to A. and
superadded a power in favour of third persons which (on the
construction of tlie particular words used) amounts to a trust ;
in other words, where the testator has imposed a duty on the
donee of the power, and has also given him an interest extensive
enough to enable him to discharge it. (2) Where the testator
has given the donee of the power no estate or interest out of
which the power can take effect. "Tliere is, however, a distinct
class of cases where the donee of the power takes not more than
a life estate. In these, however clear tlie expression of desire
on the part of the donor in favour of a particular person or class
of persons may be, yet as the donee has no estate, or none
beyond his life, the trust ,to exercise thejpower is, as such, per-
sonal, and does not directly attach upon the inheritance, save
in so far as the Com-t finds in the language an implication in
favour of the objects of the power in default of appointment.
In this case, if they take the estate, they take it by implication,
and thus by way of limitation under the instrument creating
the power. In the former class of cases {i.e., (1) above), the
Court acts by executing the power in lieu of the donee ; in the
latter, by simply giving effect to the estate implied in the words
of the deed or will " {per Porter, M. R., Moore v. FfoUiof, 19
L. R. Ir. 499, 502).
It may be doubted whether there is any practical distinction
between the two classes of cases (Sug. Pow. 591 ; Wilson v.
Dugidd, 24 Ch. D. 244 ; Pocock v. Aftorney-General, 3 Ch. D.
at p. 347). If the power is testamentary only, and the claim
is made under the alleged trust, the claimant must show that
the power might have been exercised in his favour ; but if this
were the true construction of the power, it would probably be
found that the same words, if relied on as implying a gift,
would limit the objects of the gift to the persons who survived
the donee of the power. Thus, Half head v. Shepherd (28 L. J.
Q. B. 248), is cited by Lord St. Leonards (Pow. 593) as an
authority for the proposition that there can be no implied gift
from the power, when tliat power never arises. But it might
equally w^ll be put on the gromid that tliero was no class of
F. u u
466 A CONCISE TREATISE ON POWERS.
persons to wliom to appoint, and therefore none to wliom to
imply a gift.
And there is a third class of cases, where the property is
actually given to the objects, but the shares or interests are to
be apportioned by a third person. In these cases the objects
take, altliough the power be not exercised, by force of the
original gift (Sug. Pow. 597). And see as to duty, Attorney-
Generals. Eeyicood (19 Q. B. D. 326).
The rule may be thus stated : —
Gift implied If there is a power to appoint among certain
^u^i.^' objects, but no gift to those objects, and no gift
over in default of appointment, the Court implies
a trust for or a gift to those ol^jects equally, if
the power be not exercised.
Tlic rule is the same whether there is a gift over in default of
objects of the power or not.
"When there appears a general intention in favour of a class,
and a particular intention in favour of individuals of a class to
be selected by another person, and the particular intention fails
from that selection not being made, the Court will cany into
effect the general intention in favour of the class. When such
an intention appears, the case arises, as stated by Lord Eldon
in Broicn v. Biggs (8 Yes. 504), of the power being so given as
to make it the duty of the donee to execute it : and in such
case the Couii will not permit the objects of the power to
suffer by the negligence or conduct of the donee, but fastens
upon the property a trust for their benefit" {Burroughs. PhikoXj
5 M. & C. 92 ; and see Re Hargrove, 8 I. E. Eq. 256 ; Carthew
V. EnragJd, 20 W. E. 743). In Re Caplin (2 Dr. & Sm. 527),
a testator gave part of his residuary estate to his wife for life,
and after her death to be paid to such and so many of the
relations or friends of the wife as she should by will appoint.
There was no gift in default of appointment ; and it was held
that there was an implied trust in favour of the objects of the
power, who were held to be next of kin, " friends " being read
POWERS IN THE NATURE OF TRUSTS. 467
as synonymous -with "relations." In Siiniofl v. Wcikh (5 L. E.
Ir. 27), a testator in 1837 gave freeholds to his two sons, and
proceeded, " should either of my said sons die mthout issue, his
part of the property to fall to whatever existing member of my
family he may be disposed to will it to." It was held that
" existing " meant living at the date of the will, and that there
was an implied gift in default of appointment to all the objects
of the power in equal shares. In lie White (John. 656), there
was a bequest to trustees for A. for life, and if he should die
childless, upon trust to ap]>ly the trust fund for the benefit of
such of the testator's children or their issue as the trustees
should think fit : there was no gift in default of appointment.
No appointment was made, and A. survived the trustees and
died childless. It was held that the children and remoter issue
of the testator took in equal shares 2^c>' eapita.
In Walsh v. Wallinger (2 R. & M. 78), a testator bequeathed
the residue of his estate to his wife for her own use and benefit,
trusting that she would at his decease give and bequeath the
same to their childi-en in such manner as she should appoint.
There was no gift in express terms to the children, nor any
intention displayed that they were to take in default of appoint-
ment. It could only be inferred from the power itself who were
to take in default of appointment, and it was held that the
children who survived the wife took.
In cases falling within the first of the classes mentioned
above, the trust imposed must be, on its true construction,
imperative if it is to override or control the prior absolute gift.
A power which is merely permissive is not enough {Brook v.
Brook, 3 Sm. & O. 280).
2. There are cases also which are distinct from those above
mentioned, in which the objects of the power are held to be
objects not of a trust but of an implied gift from the words of
the power or of the gift over ; the distinction is not important,
as the result is the same in both cases.
It is, perhaps, more easy to imply a gift when there is a power Gift implied
of appointment among a class, but no gift to that class, and a over beiii| in
gift over in default of objects of the power (not of appointment), ojj'^'^^of the
H H 2 p<^wer.
468 A CONCISE TREATISE ON POWERS.
tlifin in cases where there is no such gift over. The insertion
of the gift over must abuost necessarily imply a preceding gift
to the class in default of which it is to take effect, or he un-
meaning ; and the gift hy implication is of as large an estate as
might have been appointed under the power {per Channell, B.,
in Roddy v. FitzgeraM, 6 H. L. 0. at p. 839, citing Crozicr v.
Crozier, 3 Dr. & War. 373).
In Witts v. Boddington (cited 5 Yes. 503), there was a gift to
the testator's wife for life, with a power of appointment among
the children of their daughter ; hut if no children of the daughter
should he alive at his wife's decease, he gave the property to
other persons. There was held to he an implied gift to the
objects of the power.
In Butler v. Gray (5 Ch. 26), a testator gave his residuary
estate to be equally divided among his children ; he afterwards
gave the dividends for the use of each of his children for their
respective lives, and if they had children, then the principal to
be at the disposal of the parent to such children, and in default
of children, over. This was held to give the testator's children
their respective shares for their lives, with power to appoint to
their respective children, and part of such fund having been left
unappointed by one of the testator's daughters, it was held to
be divisible among her children equally. Lord Hatherley said
that the daughter's interest was intended to be only a life interest
with a power to appoint among her children, and in default of
her having children (not in default of appointment), a gift over
to the other members of her family. In that view of the case,
therefore, if the power was not exercised, the children would be
held to be direct objects of the original testator's bounty, and in
default of appointment to take whatever had not been well
appointed; (and see Ac/irson v. Fair, 3 Dr. & War. 512, where a
life interest in the donee of the power was also implied ; Femcick
V. Greemvell, 10 B. 412; Stohcorthy v. Bancroft, 33 L. J. Ch.
708 ; Wilson v. Duguid, 24 Ch. D. 244).
Application The same rule applies in favour of charities. In PocoeJ: v.
to^mrit/^*' Att.-Gen. (3 Ch. D. 342), the testator directed certain funds "to
be given by my executors to such charitable institutions as I
POWERS IN THE NATURE OF TRUSTS. 469
shall by any future codicil give the same, and in default of any
such gift then to be distributed by my executors in their dis-
cretion." It was held that this was a gift to charitable insti-
tutions to be nominated in the fust instance by himself, and
failing that by liis executors, but to charity in any event ; and
it was pointed out that a gift to such charitable institutions as
the testator should by codicil appoint is, without more, a clear
gift to charity, though no codicil is made (JZ/V/.s v. Farmer, 1
Mer. 55 ; Jlocjgr'uhjc v. TJiaclaccll, 7 Ves. 3G ; and see Sahishury
V. Denton, 3 K. & J. 529).
The implication of gift must, of coui'se, yield to an expression Contrary
of a contrary intention in the will. Thus, if the power is not ^^|^ ^^^ '"
simply to pay over to the children of A., or the children of B.,
but is, at the uncontrolled discretion of the trustees, to apply the
whole or such part as they may think fit of capital or income or
both for the personal maintenance or otherwise for the benefit
of A., or (at the option of the trustees) in augmentation of the
shares of other legatees, the Court can draw no inference as to
the persons to whom, or the shares in which, the testator meant
the property to go in default of exercise of the power [Re
Eddowes, 1 Dr. & Sm. 395). So, the testator may expressly
negative the existence of any gift. Thus, in Carberry v.
MeCartlnj (7 L. R. Ir. 328), a testator recited that he had
already provided for his children (except one to whom he gave
a large legacy), " and do not hereby make any further proAasion
for them;" he then gave his residuary estate to his wife for life,
with power to dispose thereof by deed or %\ill to all or any of his
children by her. It was held that there was no implied gift to
the children.
In Wheeler v. Warner (1 S. & S. 304), a sum of 10,000/. stock
was bequeathed to trustees on trust to pay the dividends to the
testator's daughter while single ; and, provided she married vdi\i
the trustees' consent, the testator declared that his trustees should
transfer to the husband such part, not exceeding one third, of
the stock as they should think proper ; and subject thereto trusts
were declared of the corpus of the stock for the benefit of the
daughter and her children. The daughter manied in the
470
A CONCISE TKEATISE ON POWERS.
testator's lifetime without his consent, but he subsequently
approved. It was held that the marriage with previous consent
or subsequent approbation of the testator was equivalent to a
marriage after his death with the consent of the trustees ; and
further, that the discretion given to the trustees was incident
only to theii- authority to consent to the marriage, and that, in
the circumstances that had happened, the will contained a gift
of one-third of the 10,000/. stock to the husband. This was
followed by V.-C. Malins in Tweedah v. Ticecdalc (7 Ch. D.
633).
Gift by im- 3. And although the donee of the power has a discretion and
althouS' the Diay exclude one class entirely, the implication of a gift will still
class to take ^^.jgg^ jf ^j^g^e appear to be an intention to give the property to
IS i6rt to Til©
donee's dis- the objects.
cretion. ^^ Lomjmore v. Broom (7 Yes. 124), there was a bequest to
executors in trust to pay among the testator's two brothers and
his sister, or their children in such shares, &c., as the executors
should think fit. The Master of the EoUs considered that the
executors had a discretion, and might say to whom the fund
should be given, the parents or the children : but that discretion
not having been exercised, the fund was to be equally distributed
between them ; (and see Re W7iife, John. 656, ante, pp. 466, 467).
And it would seem to make no difference that events have
rendered it impossible to exercise the discretion. In Carthew v.
EnrarjM (20 W. E. 743), a testator directed that after the death
of his wife liis trustees should pay and divide 1,000/. between
such ten of the children of A. as his trustees should think fit.
At the death of the widow there were only six objects of the
power living. It was held that there was an implied gift to
them, whatever their number might be.
But in Jones v. Torin (6 Sim. 255), where a testator be-
queathed 6,000/. in trust for his daughter for life, and on her
death " he gave the said 6,000/. to the children, or their descen-
dants, of T. F. in such proportions as his said daughter should
aj^point," it was held that the descendants were mentioned
merely as substitutes for the children. There was a direct gift
with a power of selection.
POWERS IN THE NATURE OF TRUSTS. 471
In renin/ v. Turner (2 Ph. 493), a testator, after giving his
mother a life interest, willed and devised that all his property
should bo divided amongst his three sisters A., B., and C, or
their ehildi*en, in such proportions as his mother should appoint.
No appointment was made, and there was held to be a gift in
default to the whole class of daughters and chiLben equall}^ not
on the ground that "or" was to be construed "and," but that
it was referable only to the power given to the mother of selec-
tion from among the class ; (see, too, Down v. Worrall, 1 M. & K.
561 (a very doubtful case) ; LiWe v. Neil, 31 L. J. Ch. G27).
4. Where there is a o-ift over in default of apiDoint- No gift im-
, , . <. , T plied if the
ment to the objects of the power or to other gift over be
in default of
persons, the words of the power cannot operate to appointment,
vest any estate in the objects of it by implication,
if there be no appointment (Jenkins v. Quinchant,
5 Ves. 596, n.).
In Patfisoii v. Pattisou (19 B. 638), a testator gave a fund to
his wife for Hfe, with power for her to appoint it by wiU among
A., B., and C, and theh respective children, and in default of
appointment, he directed that the same, at his wife's death,
should go amongst all the said children equally. No appoint-
ment having been made, it was held that the childi-en alone
took, by virtue of the gift over, to the exclusion of A., B., and
C; (and see Richardaon v. Harrison, 16 Q. B. D. 8o; Re Sprar/ue,
Miley v. Cape, 43 L. T. 236 ; Re Jefenjs, 14 Eq. 136, was
wrongly decided on this point) .
But a gift over, to take effect in an event which does not
happen, has no operation, and therefore will not prevent the
implied gift arising fi'om the power itself {Kennedy v. Kingston,
2 J. &W. 431).
5. Where the property is itself given to the objects, but their
shares or interests are to be declared by a thhd person, they
take by force of the original gift to them, if the power be not
executed. Questions have frequently arisen as to the period at
472
A CONCISE TREATISE ON POWEKS.
which such gifts vest ; for it is well settled that the existence of
a power of ai^pointment does not prevent the vesting of the
property until and in default of the execution of the power {Doe
V. Martin, 4 T. E. 39) ; although the power be testamentary
only {Heron v. Stokes, 2 Dr. & Wai*. 89).
Period of
vestinsr -when
there is a
direct gift to
a class.
Power exer-
ciseable by
-will only.
If the instrument itself gives the property to a
class, but gives a power to A. to appoint in what
shares and what manner the members of that
class shall take, the propert}^ vests until the power
is exercised in all the members of the class, and
they "\^ill all take in default of apj^ointment
[Lamlert Y. TJnvaites, 2 Eq. 151; Bradley y. Cart-
turigJd, L. E. 2 C. P. 511 ; Wilson v. Duguid, 24
Ch. D. 244).
In Caderton v. Sutherland (9 Yes. 445), there was a devise to
the testator's wife for life, and after her death " unto and
amongst all and every our children in such manner and in such
j)roportion as my said wife shall, either in her lifetime or by her
last will, appoint." There were five children, all of whom died
before the wife, and there was no execution of the power.
Sir W. Grant decided that it was a tenancy in common among
all the children, subject to the power of aj)pointment. The gift
was direct to the childi-en, and the power of appointment was
exerciseable by deed as well as byjtvill.
If there be a airect gift to the class, the mere fact that the
power, the exercise of which may defeat that gift, is exerciseable
by wall only, is not enough to postpone the period of vesting, so
as to make the direct gift available only for those of the class to
whom the donee might have effectually appointed.
In Broicn v. Pocock (6 Sim. 257), there was (in effect) a
bequest to A. of 21. per week for life, -with a direction that a
sum should be set apart to answer those weekly payments, and
after the death of A. there was a power to A. to leave the sum
to and for the benefit of his wife and children in such manner
POWEKS IN THE NATURE OF TKUSTS. 473
as he Bhould by will give and bequeath the same. There were
four children of A. living at the death of the testatrix, of whom
one died ; and two otlier children were born afterwards. The
wife died before the donee of the power. There was no valid
appointment under the power, and the question was, to whom
was the fund to go in default of appointment ? It is to be
observed that there was no direct gift to the wife and children,
and only a power to A. to appoint by will. But it was held
that the wife and childi-en took in default of appointment as
joint tenants, and therefore the surviving children were entitled
to the fund. The decision was clearly founded on the circum-
stance that the power was to be exercised not merely for the
benefit of an indefinite class of children, but also for the benefit
of the wife, a living and defined individual, who was an object
of the testatrix's bounty, and therefore it stood upon the same
footing as if there had been a direct gift to the wife and
cliildren, in such manner as A. should by will appoint ; and so
it was a vested interest in the wife and children, subject to
being divested by the execution of the power (2 Eq. 157).
If, however, the power is contingent on the donee leaving
children, and there is a gift over in the event of there being no
such child, no one can take by implication under a power to
appoint by writing or by will, if no child survives the donee
{Winn V. Fcnicick, 11 B. 438; Stohcorthy v. Sancrqff^ 33 L. J.
Ch. 708). In Faulkner v. Lord Wijnford (15 L. J. Ch. 8), a
testator gave stock to trustees in trust for A. for life, and after
her death to pay both principal and interest to her children as
she should by deed or will appoint ; but if she should leave no
cliildren living at her death, or all should die under twenty-five,
then over. A. died without appointing, having had two
children, one of whom died in her lifetime, aged twenty-eight,
and the other survived her and died aged fifty-three. It was
held by Wigram, Y.-C, that the representatives of the two
childi-en took in equal moieties : the V.-C. saying that, as the
power was to appoint by deed or will there was nothing to
oblige the tenant for life to suspend her judgment as to the
parties who should take till her death.
474 A CONCISE TREATISE ON POWERS.
Vested inte- And where there is an interest vested in the objects entitled
be^divcsted by ^ default of appointment, such interest can only be divested by
appomtmeut. ^ valid execution of the power of appointment ; and if there be
no such execution, then all the objects who attained vested
interests, whether alive or dead at the death of the donee of
the power, will take {Vandcrzce v. Adorn, 4 Yes. 771, 787).
Period of 6. If tliG instrument does not contain a gift of the
there fs no property to any class, but only a power to a third
^ person to give it as he may think tit among the
members of that class, those only can take mider
the implied gift in default of aj^pointment who
miffht have taken under an exercise of the
power. In that case, the Court implies an in-
tention to give the property in default of appoint-
ment to those only to whom the donee of the
power might have given it [Lambert v. Thwaites^
2 Eq. 151).
In Kennedy v. Kingston (2 J. & W. 431), there was a bequest
of 500/. to A. for life, and at her decease to divide it in portions,
as she should choose, among her children. She had four
children, one of whom died ; and then when three were surviv-
ing, she made a will giving the fund in certain proportions to
those three. Afterwards one of those three died before her.
It was held that the appointment to the three was perfectly
good, and that the lapsed share would go to the two who
survived ; and for this reason : there was no direct gift by the
testator to the children ; the fund was given to her for her life,
with a power at her decease to divide it as she liked among her
children. That she could only do by her wUl ; and of course
none but those who survived her could take under her will ; and
therefore those only who survived her must be presumed to have
been intended by the original testator to take in default of
appointment (2 Eq. 156 ; and see Wakh v. Wallinger, 2 E. &
POWERS IN THE NATUKE OF TRUSTS.
476
M. 78; Sinnott v. Wahh, 5 L. II. Ir. 27; Winn v. Femcick, 11
B. 438; Re Simnni, 2G W. E. 93).
7. The period for ascertaining the class to take will, it seems, Period for
also vary, according as the testator has or has not given the the'^memU-fs
donee of the power or some other person a life interest in the jf^^J^^j j^j^^^jj
trust property. ^f appoint-
If the donee has a life interest, the persons entitled in default
of appointment are such of the objects of the power as are
living at the death of the donee, not of the testator, whether the
power be one of selection or of distribution merely {Finch v.
IIoUinyHWorth, 21 B. 112). But it seems that if there is a life
estate given to a person other than the donee, the death of the
longest Hver of such life tenant and the donee of the power will
be the period for ascertaining the class. In lie White (John,
656), there was a bequest to trustees for A. for life, and if he
should die childless, on trust to apply the sum for the benefit of
such of the testator's children or their issue as the trustees should
think fit. A. survived the donees of the power. Y.-C. "Wood
said : " The next question is, at what time the class is to be
ascertained. The latest period which can be suggested is the
death of the tenant for life. ... In a case where the donee of
the power siu-vives the tenant for life, there would be a possible
ground for arguing that the class must be kept in suspense long
enough to let in all who might be born while the power was in
existence. But here the latest period that can be fixed is the
death of the tenant for life. Then the question arises, w^hether
children who predeceased the tenant for life are entitled to
share. The words of this will clearly point to a personal
enjoyment by the objects of the power at the death of the
tenant for life ; there is therefore strong reason for holding, on
the tenor of this partieidar will, if not on general principle, that
none of those who predeceased the tenant for life could shai-e in
the benefits of an appointment under this power. There might
be a question how far this, being an implied gift to all the
objects of the power, ought to be considered as creating vested
interests in them. This would apply forcibly to a case like
Penny v. Tamer (2 Ph. 493), where the objects are named; but
^~^> A CONCISE TREATISE ON POWERS.
here the benefit is bestowed upon a class, and the question is at
what time that class ought to be ascertained. I think that the
right i^eriod is the death of the tenant for life ; and the fund
must therefore be di\ided among such of the children and
grandchildren as were living at the death of the tenant for life
in eqiial shares per capita ;^^ (and see Cart/iew v. EnragJit, 20
W. R. 743).
Where the distribution or selection is not suspended by any
preceding life estate, it seems that the persons who answered the
description and formed members of the class at the time when
the instrument creating the power came into effect, will take
{Walter v. Ilaunde, 19 Yes. 424, 426; Cole v. Wade, 16 Yes.
27). Lord St. Leonards, however, says (Pow. 662), that the
point does not seem to have arisen in the latter case, as the
same persons appear to have been the next of kin at the time of
the testator's death and when the decree was pronounced, which
was after the power had ceased. In Loiujmore v. Broom (7 Yes.
124), there was a bequest to executors on trust to pay unto and
amongst the testator's two brothers and sister or their children
as the executors should think fit ; and it was held that the fund
vested at the testator's death, and the power not having been
exercised, after-born children could not take.
Extent of gift If the power is such as to allow the whole fee or interest to
be appointed, the gift in default, whether it be express or
implied, cannot be considered to be less than what might have
been appointed by the exercise of the power {Crozier v. Crozier,
3Dr. & War. 373).
8. In considering powers in the nature of trusts, the Court to
some extent adopts its principles as to trusts, and if the donee
fails to execute the power, will execute it for him {Bro/cn v.
IIi(jfj^, 8 Yes. 573). Whether it bo considered that the objects
of the power take by such execution by the Court, or by force
of an implied gift, the effect is the same, and the same rules
apply. Accordingly, as the implied gift is to the objects
equally, so,
Tiie objects 111 general, the Court goes by tlie rule that
take equally.
POWEK« I\ TUT. XATURK OF TRFSTS. ' 477
equality is equity, and ogives the trust estate
to the objects of tlie power equally {Doijlcij v.
Attorney -General^ 4 Vin. Abr. 48o, \^. 10).
In SahiHhurij v. Denton (3 K. & J. 529), there was a bequest
of a fund to be at the disposal of tlie testator's widow by her
will, therewith to apply a part to the foundation of a charity
school or such other charitable endowment for the benefit of the
poor of 0. as she might prefer, and under such restrictions as
she miglit prescribe, and the remainder to be at her disposal
among the testator's relatives as she might direct. Y.-C. "Wood
said : " The case of Doyley v. Attorncij- Genera I was very similar
to the present. There the property in question was bequeathed
in trust for certain purposes, and, subject thereto, the trustees
and the survivor of them and the heirs and executors of such
survivor were to dispose of it to such of his relations on his
mother's side who wore most deserving, and in such manner as
they thought fit, and for such charitable uses and purposes as
they should also think most proper and convenient ; and the
Master of the lioUs directed that half of the estate should go to
the testator's relatives on the mother's side and the other half to
charitable uses, the known rule that equality is equity being, as
he said, the best measure to go by. It appears to me that there
is no possibility of distinguishing that case from the present ;
for there can be no substantial difference between a direction to
dispose of property to such relations and for such charitable
purposes as the trustees should think most proper, and a direction
like the present to apply a part to such charitable purposes and
the remainder among relatives with a like discretion ;" (see, too,
Jones V. Jones, 5 Ha. 410, as to payment of fines on renewal of
leases) .
But if a rule has been laid down for the guidance of the donees The Court
of the power, the Coiu't will act upon it in the same manner as the r^jg i,,ij jown
donees might have done {Goicer v. Mainicarinr/, 2 Ves. sen. 87). oJthe p"wer
" Where trustees have power to distribute generally, without any
object pointed out or rule laid down, the Court interposes not (un-
less in case of a charity, which is different, the Court exercising a
478 A CONCISE TREATISE ON POWERS.
discretion as having the general government and regulation of
charity). But hero is a rule laid down. The trustees are to
judge of the necessity and occasions of the family ; the Court
can judge of such necessity of the family. That is a judgment
to be made on facts existing, so that the Com't can make the
judgment as well as the trustees" {Ihid.; and see Attomey-
Gcncral v. Frice, 17 Yes. 371 ; MaUon v. lavage, 1 S. & L. Ill ;
mxcett V. Beicett, 2 Ed. 332).
Requisites for 9. It remains to consider what words \nll amount to an
of Vpower'in absolute unfettered gift ; and what to a power in the nature of
ftvuii^'^ °* a trust for the benefit of others.
The Courts are not any longer anxious and astute to educe a
binding trust from vague and ambiguous expressions; they
endeavom- to take words in their plain sense, do not express from
them occult meanings unknown to the persons who employed
them, and decline to manufactm-e dispositions for testators
which they have not chosen to make for themselves (5 I. E.
Eq. 375). The law as to the creation of precatory trusts is thus
stated by Lord Langdale : —
When property is given absolutely to any
person, and the same person is by the giver, who
has power to command, recommended, or en-
treated, or wished, to dispose of that property in
favour of another, the recommendation, entreaty,
or wish shall be held to create a trust. First, if
the words are so used that, upon the whole, they
ought to be construed as imperative ; secondly, if
the subject of the recommendation or wish be
certain; and, thirdly, if the objects or persons
intended to have the benefit of tlie recommenda-
tion or wish be also certain [Knight v. Knight, 3
B. 148; 11 CL & F. 513).
" If a testator gives 1,000/. to A. B., desiring, wishing, recom-
mending, or hoping that A. B. will, at his death, give the same
POWKRS IN TTTE NATURE OF TRUSTS. 479
sum or any certain part of it to C. D., it is considered that C. D.
is an object of the testator's bounty, and A. B. is a trustee for
him. No question arises upon the intention of the testator, upon
the sum or subject intended to be given, or upon the person or
object of the wish" {Ibid.).
Tliere appears to be a fourtli rerpiisito — viz., tlie manner in
which the trust is to be performed must be certain. This,
perhaps, belongs partly to the uncertainty of the subject, and
partly to the uncertainty of the object, and may be reduced to
either the one or tlio other of them {Iiccvch v. Bdkcr^ 18 B. '^79).
10. It is often diflicult to determine whetlior a testator who Intention of
has first made an absolute gift, and then added words which
would amount to a precatory trust, intends the donee to take
absolutely or not.
Lord St. Leonards (Prop. H. of L. 375) says that the law as Absolute gift
to the operation of words of recommendation, confidence, request, precatory
or the like, attached to an absolute gift has in late times varied "'°"^-
from the earlier authorities. In nearly every recent case the
gift has been held to be uncontrolled by the request or recom-
mendation made or confidence expressed. This undoubtedly
simplifies the law, and it is not an unwholesome rule that if a
testator really mean his recommendation to be imperative, he
should express liis intention in a mandatory form : but this
conclusion was not arrived at without a straggle.
It is in each case a question of the intention expressed in the Trust not
will ; but to ascertain this intention the proper course is to
consider the whole will, and not to lay hold of particular words
and say that, because such words have in other wills amounted
to a precatory trust, therefore they must have the same meaning
in all wills. This would be to apply to ordinary colloquial
expressions the strictness of construction which has been imposed
on words of art. " Having regard to the later decisions, we
must not extend the old cases in any way, or rely upon the
mere use of any particular words; but considering all the words
which are used we have to see what is their true effect, and what
was the intention of the testator as expressed in tlie will " [per
Cotton, L. J., in Bo Adcons and Kensington Vestr//, 27 Ch. D.
[SO A CONCISE TREATISE ON POWERS.
at p. 410). There is, however, more difficulty in establishing
a precatory trust, where the gift to the alleged trustee is coupled
with words of limitation, or words such as " absolutely," " for
his o^\Ti use and benefit," and the like ; although neither the
presence nor the absence of such words is by itself conclusive,
but the whole will must be considered. And it has been said
that " absolute " may mean either unlimited in point of estate,
or unfettered in respect of condition or trust {Meredith v.
Seneage, 1 Sim. 542). But the present disposition of the
Courts is certainly to refuse to cut down a clear absolute gift
by reason of the addition of precatory words, and is rather to
regard such words as mere expressions of the testator's wishes
and belief as distinguished from a direction amounting to an
obligation. It would not be a very strained inference to regard all
such expressions as stating the motive that induced the absolute
gift, rather than as a fetter imposed upon it. " In hearing case
after case cited, I could not help feeling that the officious kind-
ness of the Court of Chancery in interposing trusts, where in
many cases the father of the family never meant to create trusts,
must have been a very cruel kindness indeed" {per James, L. J.,
in Lamhe v. Fames, 6 Ch. o97 ; and see Re Hutchinson and
Tenant, 8 Ch. D. 540; Ee Dirjrjks, 39 Ch. D. 253; ReDoiming,
60 L. T. 140 ; Ihmoorie Bank v. Raynor, 7 App. Ca. 321). In
all these cases the Court refused to hold that a precatory trust
was created. And the following are some of the cases to the
same effect:— Tre^// v. Wools, 2 Sim. N. S. 2G7 ; Thorp v. Owen,
2 Ha. 607 ; Winch v. Brutton, 14 Sim. 379 ; Machett v. Mackett,
14 Eq. 49 ; Reid v. Atkinson, 5 I. E. Eq. 162, 373 ; Re Byrne,
29 L. Pv. Ir. 250 ; Re Adams and Kensington Vestry, 27 Ch. D.
394.
Trust created. On the other hand, in Bernard v. IlinshuU {^o\m. 276), a
testatrix gave her husband 13,000/. absolutely, but requested
him, after reserving for his own absolute use and benefit 2,000/.,
part of that sum, and applying all the interest to his own sole
use and benefit during his life, to make sucli a disposition of the
remainder as would effect her wishes often expressed to him.
Under this gift, the husband could not take more tlian 2,000/.
POWERS IN THE NATURE OF TRUSTS.
481
for his own use : but it is to bo observed that " absolutely " is
contrasted with " his own absolute use and benefit ;" (and see
Irvine y. SuUivan, 8 Eq. G73).
In Gnlh/ v. Crcrjoc (24 B. 185), there was a gift of residue to
the testator's wife for life, /or Iter oicn soh' kw and benefit for ever,
the testator feeling assured and ha^ang every confidence that
she would dispf)se of the same cquitabl}' amongst her two
daughters and their children. It was held that slie took a life
interest only, with a power of appointment. And a similar
decision was arrived at in Wace v. M(ill((rd (21 L. J. Ch. '6iJb',
16 Jur. 492), whore the gift was to the testator's wife, her heirs,
executors, administrators, and assi(jns, to and for her sole use and
benefit, in full confidence that she would in every respect appro-
priately apply the same for the benefit of their children. These
cases were followed by Y.-C. Hall in Carniclc v. Tuclccr (17 Eq.
320), where a testator appointed his wife sole executrix, and
gave her all his property for her sole use and benefit, in the full
confidence that she would dispose of it among their children ;
(and see Hart v. Tribe, 18 B. 215; Shovelton v. Shovelton, 32 B.
143; Palmer Y. Simmonds, 2 Drew. 221 ; Green v. JIarsden, 1
Drew. 646 ; Le Marchant v. Le Marchant, 18 Eq. 414 ; Ford-
ham v. Speight, 23 W. E. 782 ; Corbet v. Corbet, 7 I. E. Eq.
456).
11. If there be no words indicative of an intention to give an Wlnt is suffi-
absolute beneficial ownership, it is less difficult to establisli a of intention,
precatory trust. Whenever a person gives property, and points
out the object, the property, and the way in which it shall go,
that does create a trust, unless he shows clearly that his desire
is to be controlled by the party, and that he shall have an option
to defeat it {JIalim v. Keighley, 2 Ves. jun. 333).
The question always is, whether the wish or desire or recom-
mendatiim that is expressed by tlio testator is meant to govern
the condiict of the part}' to wliom it is addressed, or whether it
is merely an indication of that which he thinks would be a
reasonable exercise of the discretion of the party, leaving it,
however, to the jmrty to exercise his own discretion ( Williams v.
Williams, 1 Sim. N. S. 358, 368).
F. 1 I
482
A CONCISE TREATISE ON POWERS.
Uncertainty
of subject.
IIa^ing regard to the priuciples laid down by the Court of
Appeal, as before stated {ante, p. 479), it is submitted that no
groat reliance can be placed on the use of any particular words
standing alone. A long list of cases will be found in Lewin on
Trusts, 9th ed., 137, where such words as " desire," "will,"
" request," &c., have been held sufficient.
12. One of the requisites stated in the rule in s. 8 was that
the subject-matter must be certain. If, therefore, there be a
gift by will, followed by apt precatory words, desiring that the
donee will " leave the bulk " of the property given to persons
named, no valid precatory trust will be created {Palmer v.
Simmonds, 2 Drew. 221). So, a request that the legatee will
give and bequeath " what should be remaining," or " what shall
be left," to such members of her own and his family as the
legatee should think proper, is too indefinite {Green v. Marsden,
1 Drew. 646). So, a gift to the testator's widow "feeling con-
fident that she will act justly to our children in dividing the
same when no longer required by her " {Mussoorie Bank v.
Eaynor, 7 Ap. Ca. 321 ; and see Cole v. Haices, 4 Ch. D. 238 ;
Stead V. Mellor, 5 Ch. D. 225 ; Parnall y. Parnall, 9 Ch. D. 96;
Creagh v. 2Iurph>/, 7 I. E. Eq. 182 ; Re Jenkins, 23 L. E. Ir.
162 ; Wynne v. Hawliins, 1 Bro. C. C. 179 ; Lcchinere v. Lavie,
2 M. & K. 197).
But if the terms of the will, taken as a whole, show that the
request extends to all the property given by the will, a valid
trust will be created {Horicood v. West, 1 S. & S. 387).
But a request that the donee of a life interest will leave
" what money or property she might have saved from the yearly
income thereinbefore given to her," is too indefinite to create a
trust {Cowman v. Harrison, 10 Ha. 234; and see Sale v. Ifoore,
1 Sim. 534; BardswellY. Bardsicell, 9 Sim. 319).
It seems, however, that a valid precatory trust may in some
amoun? of ^ instances be created, although the amount of interest to be given
to the objects is left undefined. In Crockett v. Crockett (2 Ph.
553), there was a gift to A. to be disposed of for the benefit of
herself and her children, and it was held that the children had
some interest, but it was not declared what that interest was ;
Trust,
interest is
undefined,
POWERS IN THE NATURE OF TRUSTS. 483
(and seo Woods v. Woods, 1 M. & Cr. 401 ; Godfrey v. Godfrey,
11 W. R. 5o4; Constable v. Ball, 3 Do G. & Sm. 411).
But in Lainhe v. E(i)nes (6 Ch. 597), where the words were
similar to those in Croehett v. Crockett, the Lords Justices
thought that there was no sufficient trust declared, but that if
there was it had been faii'ly executed.
But a trust for the support and maintenance of an adult or Trust f.jr
. » . ... -VTT1 Trf 11 • • 1 J. "liiujtc'nance.
infant is not too mdennite. " vVhatever dilhcuLties might
originally have been supposed to exist in the way of a Court of
Equity enforcing a trust, the extent of which was unascertained,
the cases appear clearly to decide that a Court of Equity can
measure the extent of interest which an adult, as well as an
infant, takes under a trust for his support, maintenance, ad-
vancement, provision, or other like indefinite expression, applic-
able to a fund larger confessedly than the person entitled to the
support, maintenance, or advancement can claim, and some
interest in which is given to another person " {Thorp v. Oicen,
2 Ha. 610, and cases there cited by V.-C. Wigram). And a
gift of income to a father upon trust to apply all or so much as
he should think fit thereof for the benefit, maintenance, and
education of his son authorizes the father to apply the whole,
whatever his financial position may be {}Iahomson v. Jilalcomson,
17 L. R. Jr. 09). The person bouud by such trust is regarded
in the same light as the committee of a lunatic, or the guardian
of an infant, i.e., he has a duty imposed on him, but so long as
he discharges that duty he is entitled to the surplus for his own
benefit ; and the Court requii^es from him no account retrospec-
tively of the application of the fund, and allows him prospec-
tively to propose any reasonable arrangement how the object of
the trust may be accomplished, or will order payment to him on
his undertaking to maintain the children properly, with liberty
for the children to apply (Lewin, 9th ed., 14-3 ; and see Re
Evans, 26 Ch. D. 58).
13. Another of the requisites mentioned in the nile stated in Uncertainty
. of objects.
s. 8, was that the objects must be certain. It will bo seen
how a power, to appoint among the "family" of any person is
ii2
4^4
A CONCISE TREATISE ON POWERS.
exerciseable {post, p. 505). But it seems that a gift to a man,
"hoping that he will continue them in the family," is too
indefinite in point of object [Ilarland v. Tr'Kjg, 1 Bro. C. C.
142; WilUams v. Williams, 1 Sim. N. S. 358).
In Lambe v. Eamcs (6 Ch. 597), L. J. James seemed to think
that a gift to he at the disposal of a person " for the benefit of
herself and her family," was too indefinite for the Court to
execute as a trust. He said that it was impossible to put any
restriction on the meaning of the word, or to exclude any person
who in ordinary parlance would be considered within the
meaning; (but see Wrig/it v. Afki/ns, 19 Yes. 299 ; and as to
the word "relations," see Eeeres v. Baker, 18 B. 372 ; and^^o.s^
p. 504).
When trust But although vagueness in the object will furnish reasons for
although the holding that no trust was intended, yet this may be counter-
undea^ed vailed by other considerations, which show that a trust was
intended, while at the same time such trust is not sufficiently
certain and definite to be valid and effectual. It is not neces-
sary, in order to exclude the legatee from a beneficial interest,
that there should be a valid or effectual trust : it is only
necessary that it should clearly appear that a trust was
intended {Brigc/s v. Penny, 3 Mac. & G-. 546). In that case
the testatrix, after giving a legacy of 3,000/. to A., and 3,000/.
in addition for the trouble she would have in acting as executrix,
gave the residue of her estate to A., "well knowing that she
will make a good use of it and dispose of it in a manner in
accordance with my views and wishes." It was held that a
trust was created, and therefore that A. could not take bene-
ficially. There is no real substantial difference between such a
case and the case of a testator who gives all his property to A.
on trust, but never declares that trust. In the latter case, there
is the fact that a trust nominatiin exists or was intended, but the
objects are unknown ; in the former, that views and wishes
exist, and the bequest is made in confidence that they will be
accomplished, but the objects are unknown. In both cases the
legatee or devisee takes as a trustee for the next of kin or heir-
at-law, unless the property can pass by a residuary gift (see
POWERS IN THE NATURE OF TRUSTS. 48-
Bermird v. Jfin.s/tn//, Jolm. 27G ; Sprinr/cff v. Jrtutujs^ 6 C\\.
333).
In Briiiij.s V. Pnini/, it is to ha obBerved that, first, absolute
legacies were given to A., and that then the residue was also
given to her : the Court, therefore, more readily concluded she
was a trustee. In Ircine v. SnUlcax (8 Eq. G73), tlio testator
devised his estate to three trustees on trust to sell, and directed
them to hand over the net residue to D., and he gave and
bequeathed the same to D. absolutely, " trusting that she will
carry out my wislics with regard to the same, witli which she is
fully acquainted." V.-C\ James held that D. took beneficially,
subject to the performance of the wishes communicated to her
by the testator and set out in the bill ; (and see Wood v. Cox, 2
M. & Cr. 684 ; licid v. Atkinson, 5 I. E. Eq. 373. And as to
secret trusts, see JIf/cCormick v. Grogati, L. R. 4 II. L. 82 ;
Non-is V. Frazcr, 15 Eq. 318).
486
A CONCISE TREATISE ON POWERS.
CHAPTER XIII.
OF THE OBJECTS OF PARTICULAR POWERS.
PAGE
1. Objects of Umited powers gene-
rally 486
2. Children 487
3. Grandchildren 493
4. Issue 494
5. Substitution of children for
parents 497
6. Toiingcr children 498
PAGE
Period for ascertaining the
class 502
7. delations or family 504
8. What relations are objects of
gift in default of appointment 606
9. Where a particular class of re-
lations is 2^ointed out; poor
relations 508
1. In considering what persons are the objects of particular
powers, it must be remembered that the donee of a limited
power has no more dominion over the subject of the power than
is given him by the terms of the power, and that the instrument
creating the power is the only admissible evidence of the inten-
tion of the author of the power. The class cannot be made to
contain objects other than those specified, because it is just or
expedient, or because the author of the power would presumably
have wished it, if the question had been laid before him ; nor
does the fact that the same person is both author and donee of
the power make any diiierence.
If the power be one of distribution merely, the objects thereof
are determined by the same rules of construction as apply to
gifts in similar terms, but without any power annexed. But if
the power authorizes selection, the donee may in some cases
appoint to persons other than those who would be entitled under
a simple gift to the same persons (see post, s. 7). It has not
yet been determined whether Lord Selborne's Act (37 & 38
Yict. c. 37), by which all powers are, in the absence of expres-
sion to the contrary, made to authorize selection, has any effect
on this question.
OBJECTS OF PARTICTTLAR POWERS. 487
2. The words ''child," ''son," "issue," and all similar "Chii<r'and
, . . , 1 •! 1 other himilar
terms, mean pn?nd facie legitimate child, son, or words meau
legitimate
issue [WilJcinson v. Adam, 1 V. & 13. 422). ciuid, &c.
The same rule applies to " next of kin " {Re Standkij^ 5 Eq.
303).
No other meaning can bo given to tlie words in a will by any
conjectural application of other words found in the will and
supposed to show the testator's intention : there must be clear
evidence of tliat intention in the will itself to establish another
application of the word. But there may be a gift to living
illegitimate ehildi'en as a class, if the words used by the testator
show clearly that such children were intended to be the objects
of his boimty : pn'/iia facie the word " children " is to be read as
if the word " legitimate " had been expressly inserted before it,
but the testator may make his own dictionary, and may define
children as including children who are illegitimate {HiJI v. Cvoolt^
L. E. 6 H. L. 265; Ec naxcMmc, 31 Ch. D. 511, where the
will and codicil were for this purpose read as one instrument,
notwithstanding the doubt expressed in Re Clark, 14 Ch. D. 422).
In Dorin v. Dorin (L. E. 7 H. L. 568), a man who had two
illegitimate children by a woman, married her, and the day after
his marriage made a will in which, after a life interest to her,
he said, " I leave her at liberty to direct the disposal of the
property amongst our childi-en by will at her death in such
manner as she shall think fit, and should she make no will I
desire that the property existing at her death shall be divided,
as far as it may be practicable to do so, equally between my
children by her." He had no child born after the will, but he
lived for some time afterwards and always treated the two
illegitimate children as his own children. It was held by the
House of Lords, reversing Malins, V.-C, tliat these children
could not take ; (and see Re Ai/les, 1 Ch. D. 282). But a gift
to an illegitimate child en ventre sa mere at the date of the will,
and born after the testator's death, is not contrary to public
policy [Crook v. Hill, 3 Ch. D. 773). Such a child can take
under a gift to children if it sufficiently appear that the children
488 A CONCISE TREATISE ON POWERS.
intended are illegitimate cliildi-en {ihid.; Dover v. Alexander, 2
Ha. 282). But an illegitimate child, neither en ventre, nor born
imtil after the testator's death, cannot take. Such a gift is said
to he the same as a deed on an immoral condition (3 Ch. D. 773).
An illegitimate child en ventre can be accurately described by
reference to its mother {Evans v. Masse//, 8 Pri. 22 ; Gordon v.
Gordon, 1 Mer. 142) ; but cannot be described by reference to
its father, as the fact of the paternity would involve an inquiry
whicli the law will not allow (see Earle v. Wilson, 17 Yes. 528).
The reputation of paternity is a proper subject of inquiry ; the
fact of paternity is not {Be Bolton, 31 Ch. D. o42).
It is, however, proper to consider the circumstances existiug
at the date of the will ; and if there is no possibility of legitimate
children existing or coming into existence to satisfy the terms of
the gift, illegitimate cliildren who have acquired the reputation
of chikben may take {Be Eastie, 35 Ch. D. 728 ; Be Horner, 37
Ch. D. 695 ; Theobald on Wills, 215 d seq.).
Although in cases of intestacy the children must be legitimate
according to the law of England {Doe v. Vardill, 7 CI. & F.
895), it has been held that a devise to "children" includes a
child legitimate according to its domicil, although not so accord-
ing to the law of England {Be Gray, (1892) 3 Ch. 88). When
the subject-matter is personal estate, it is sufficient if they are
legitimate by the law of their domicil {Be Goodman, 17 Ch. D.
266). And such legitimation may take place by the subsequent
marriage of their putative father and mother, if the law of the
domicil allows it {Be Andros, 24 Ch. D. 637) : pro\aded that the
father was domiciled in a country whose laws allowed such
legitimation, both at the time of the marriage which gave the
status of legitimacy, and at tlie time of the birtli on which it
took from its putative father the potentiality of being legitimated
{Be Grove, 40 Ch. D. 216).
Date at which In order to enable illegitimate children to take by repute,
ha\" been^ tliey must have acquired tlie reputation of being the offspring
acquired. ^£ ^^^^-^ parent before the instrument containing the power takes
effect ; for by the policy of the law, the paternity of illegitimate
children cannot be inquired into : a gift by will by a testator or
OBJECTS OF PAKTICTLAR POWERS. 489
testatrix to one of his or lior cliildren hy a particular person is
good, if tlio cliild lias acquired the reputation of being such child
as described in the will before the death of the testator or
testatrix {lie Goodiciii, 17 Eq. 340 ; Occleston v. Fallalorc, 9 Ch.
147). And in the same way, a power created by will to appoint
among children may be exercised in favour of illegitimate
children who have acquired the reputation of being children at
the testator's death {Met ham v. Dulce of Brvomhirc, 1 P. W. 529).
But there cannot bo a valid gift to a future illegitimate child
denoted only by reference to paternity : " a man cannot provide
for the illegitimate children of himself or of another man by
any reference that involves an inquiry as to their paternity.
The law allows no criterion of paternity but marriage " {He
Bolton, 31 Ch. D. 542, 553).
A provision by deed for the future issue of an illicit inter-
course is bad, for it can only take effect as a gift on condition
that there shall be imlawful intercoui'se resulting in the birth
of offspring. Accordingly, inasmuch as a deed takes effect from
its execution, in order that children may take imder a limi-
tation to them as such, they must be legitimate, or they must at
the date of the deed have acqidred the reputation of being
cliildi-en (Co. Litt. 3 b). And it would appear that if a man
settled property by deed on himself for life, with remainder to
such of the children as he might at his death be reputed to have
by A., as he should by will appoint, and in default to B., the
power of appointment as to after-born children would be bad,
even though the deed might contain a general power of revo-
cation, and might have remained in the testator's custody without
communication to any one till the time of his death {per Lord
Selborne, 9 Ch. 156; and see BlodiccUY. Edwards, Cro. Eliz. 509).
In T/iomjjson y. Thomas (27 L. E. Jr. 457), A. (an unmanned
woman) assigned by deed to B. (her reputed husband) and C.
a policy on her life in trust for X. and Y., being the two children
then living of A., and all and every her other children living at
her death. A thii-d child was born after the date of the deed,
and the trust in her favour was held void as contrary to pubUc
policy.
490 A CONCISE TREATISE ON POWERS.
A devise or bequest to the children of A., or of the testator,
means jirima facie children in existence at the testator's death,
provided that there are any such in existence {Mann v. T/tompson,
Kay, 638) . A devise or bequest in remainder to children as a
class vests in all the children in existence at the death of the
testator, but so as to open and let in children subsequently coming
into existence before the period of distribution {Browne v.
Hammond, Johns. 212, n.). Both these iiiles extend to grand-
children, issue, brothers, nephews, cousins {Lee v. Lee, 1 Dr. &
Sm. 85 ; Bahhcin v. Rogers, 3 D. M. & G-. 649).
By analogy to these rules :
"ChUdren" A power created by will to appoint among the
™rSJig^at^^ cliildren of A. is prima facie limited to the children
death!*^^ ill cxistcnce at the testator's death, if there are
any such. A similar power, subject to a life
interest in B., can be exercised only in favour of
children existing in the lifetime of B. [Paul v.
Comjyton, 8 Ves. 375 ; Harvey v. Stracey^ 1 Dr. 73).
But it will be otherwise if there is clear evidence of intention
that all children are to be included ; the general rule always
yields to the particular intention clearly expressed, and if there
were no children of A. living at the death of the testator,
all his children whenever born would be objects of the power;
(cf. Harris v. Lloyd, T. & E. 310 ; and see Hawkins on "Wills,
pp. 68—71 ; Theobald, 229).
Children As a gift by wiU to children living at the death or born
''l'']'^'^flt'^^ within the lifetime of the testator includes a child en ventre sa
mere. ^^,,g at the testator's death {Troicer v. BuHh, 1 S. & S. 181 ;
Doe V. Clarhe, 2 H. Bl. 399), so a power to appoint to children
similarly described may be exercised in favour of a child en
ventre sa mere (Sug. Pow. 673). The theory is that the child is
actually born at the period of distribution ; if, therefore, it
would have been illegitimate, if then actually born, it cannot
take {Ee Cor lass, 1 Ch. D. 460). And it has been held that a
OBJECTS OF PARTICULAR POWERS. 491
child en ventre is so much an object of a non-exclusive power
that his exclusion invalidated an appointment, before Lord
Selborne's Ac^, which gave liim nothing {Donofihue v. Brooke, 9
I. K. Eq. 489).
A power created by will to appoint among children without
more would allow appointments to be made to the children of
any marriage {Burrell v. Cnitvlihi/, 15 Yes. 544; Butchor v.
Butcher, 1 V. & B. 79, 91) ; but a contrary intention may appear,
as in Neirnuin v. Picrccy, 4 Ch. D. 41. And the execution of
a non-exclusive power in favour of the children of a first mar-
riage, is not void upon the face of it ; for the appointor may not
marry again, or, if he do, may not have children {Green v. Green,
2 J. & L. 541).
Marriage settlements are usually so framed as to admit of no
doubt that the children of the particidar mamage only are
intended; and in Bafforne v. Goodman (2 Vern. 302), wdiere a
term of years belonging to the husband was assigned in trust
for the husband for life, with remainder in trust for the childi'en
of the body of the wdfo, it was held that her children by liim
must be intended.
According to the rule in Wild's case (6 Rep. 1Gb), a devise of
real estate to A. and his children gives an estate tail to A. if he
has no child, or only a child en ventre {Roper v. Boper, L. E. 3
C. P. 32), at the time of the devise ; and the addition of a power
of appointment among the children does not exclude the rule
{CI{ford v. Koe, 5 App. Ca. 447). The rule does not apply to
personal estate {Audsley v. Horn, 1 D. F. & J. 22G).
A gift to several persons noniinafim wdthout more is a gift in "^7^^" ^^^
joint tenancy, and a gift to one on trust for himself and others
bears the same construction : but there may be circumstances or
expressions which will lead to a different conclusion. The
circumstance, however, that the donees are the testator's wife
and children is not of itself sufficient to prevent the apjilication
of tlie ordinary rule {Newi/l v. NcicUl, 7 Ch. 253). If, however,
the gift be to A. on trust for himself and others as lie shall
appoint, it seems that the implication will be against a joint
tenancy in default of appointment, and also against jiresuming
493
A CONCISE TREATISE ON POWERS.
Can a parent
be at once
donee and
object of the
power ?
A. to be au object of tlie power. In Croclrtt v. Crockett (2 Ph.
553), a testator directed tliat all his property should be at the
disposal of his wife for herself and her children. Lord Cotten-
ham held that there was no joint tenancy, and seemed to incline
to the opinion that a life estate to the widow with a power of
appointment among the children was intended. He mentions
an anonymous case in Dalison, 58, in which a man devised lands
to his wife to disj^ose and employ them on herself or on his or
her son or sons at her will and pleasure. It was held by C. J.
Dyer and JJ. Weston and Walsh, that the wife took a fee simple,
but that it was conditional, so that if the wife should alien to a
stranger it would be a forfeiture {La/Jihe v. Eames, G Ch. 597 ;
llanljurij v. Ti/reJl, 21 B. 322 ; and see Biljby v. Thompson, 32
B. 64G ; Hart v. Triljc, I D. J. & S. 418; Armstroiu/ v. Arm-
strong, 7 Eq. 518 ; Ward\. Grcij, 29 L. J. Ch. 74 ; MUJ v. MUJ,
9 I. R. Eq. 104 ; Re Newsom, 1 L. II. Ir. 373).
In Re Sinckiire (2 I. R. Eq. 45), a testator gave all his real
and personal estate to his wife, her heirs, executors, and adminis-
trators in trust for her his said wife and the children of their
marriage, in such shares and proportions and in such manner
and form as the wife should by deed in her lifetime, or by will
or codicil, appoint. The wife appointed to herself. In support
of that appointment it was contended that the will contained a
gift to the wife and children as joint tenants, with a superadded
power to the wife to determine the quantity of the estate to
herself and them by an appointment to be made by her. The
Landed Estates Court held, however, that the true construction
was a gift to the wife for life and to the children as she should
appoint. The judge inclined to the opinion that in all cases
where a parent is at once the donee and an object of a power,
such power could not be validly exercised by the donee in favour
of herself, leaving only a nominal portion unappointed. But it is
submitted that the real question in each case is, Has the testator
expressed his intention that the same person shall be donee and
object ? If the intention is clearly expressed, there is no reason
why the donee should not appoint the whole to himself, if the
power authorized an exclusive appointment, or fell within Lord
OBJECTS OF PARTICULAR POWERS. '^^^
Selborne's Act ; or witli a nominal exception, if it did not
authorize such an appointment, or did not fall AvitLin the Act.
3. Grandcliiklren are not objects of a power of appoint- Graudchii-
/-i 7 ■ 7 ^ dren not
nient ainoii^' children {Hinlth v. Lord Cameljordy 2 objects of
, ^ power to ap-
VeS. JUn. G98). point among
cliildren.
If, therefore, A. has power to appoint a fund among his
children, to whom it is given in default of appointment, and
one child die, A. can make no provision out of the fund for
that child's issue : he cannot appoint to the child's executors
or administrators {JIaddison v. Andreir, 1 Ves. sen. 57 ; lie
Sii.sainii, 2G W. R. 93) ; and any appointment previously made
by will would lapse, and the Wills Act would afford no assist-
ance {GriffitJis V. Gale, 12 Sim. 327). He can, however, allow the
fund, or (if there be a provision for hotchpot) a proportionate
part of it, to devolve as in default of appointment, in which case,
if the deceased child's share was vested at the time of his death,
his estate would benefit.
Lord Mansfield says that "children" may in some cases be
extended to grandchildren and great grandchildren {Duke of
Devonshire v. Cfweitdi-s//, 4 T. R. 744, n.) ; but the principles on
which the dictum was founded are overruled (Sug. Pow. 667).
And, where a testator gave all his estate to his wife to bring up
his chikben, and when they came of age " to settle " on them
what she should deem prudent, it was held that the wife
could not appoint any interest to grandchildi-en [Kctnicrlei/ v.
KcnncHcij, 10 Ha. IGO).
But grandchildren have been held to be objects of a power to Children and
appoint among children and their heirs, where it was clear that
" heirs " was not a word of limitation. In Foiikr v. Co/iii (21
B. 360), there was a devise to A. for life, and after his death to
" such of his children and theii-, his, or her heirs for such estates,
&c." as A. should appoint, and in default of appointment, to the
children of A. and the several and respective heirs of the body
of all and every such chikb-en. The Master of the Rolls con-
sidered that the word " heirs " was dcaigmdio personarum, and
49 i A CONCISE TREATISE ON POWERS.
not a liimtation of the estate. He thought that '' heirs " must
haye been used to express the objects of the power, and not the
interests thej were to take ; for otherwise it would be contra-
dictory to give a power of appointing for hucJi estates, and at the
same time to du-ect that such appointment should be only in
fee ; and he thought that " heirs " meant " issue."
But a power of appointing among children " subject to such
regulations and directions with regard to the settling of the
shares for their separate use, and with, under, and subject to
such powers, provisoes, conditions, and other restrictions and
limitations over (such limitations over being for the benefit of
some or one of them)," has been held not to authorize an
appointment to grandchildren {Ilcicitt v. Dacre, 2 Keen, 622).
The question in each case is. Who are the objects pointed out by
the author of the power ? and accordingly, where a testator
uses the words " children " and " grandchildren " indiscrimi-
nately, the Court, upon a slight indication of intention, extends
the word beyond its strict limits [Russey v. Dillon, Amb. 602 ;
S. C. suh nom. Hussey v. Berkeley, 2 Eden, 194).
Nephews And a power to appoint among nephews and nieces does not
an nieces. authorize an ajipointment to great-nephews and great-nieces
{Falhier v. Butler, Ambl. 513; Warimj v. Lee, 8 B. 247).
Prhnd facie nephews and nieces mean children of brothers and
sisters, including those of the half-blood, although in some cases
nephews and nieces by affinity may be included ; (see Wells v.
Wells, 18 Eq. 504; Sherratt v. 3Ioimtford, 8 Ch. 928; Be
Blower, 6 Ch. 351).
Issue. 4. The term ''issue" (whether in a deed or in a will)
2mmd facie means descendants ; and a power to
appoint among issue includes all issue, however
remote, born in the lifetime of the donee of the
power [Ilocldeii v. Mawlc/j, 1 Ves. jun. 143, 150;
Donoghiie v. Brooke , 9 I. It. Eq. 489 ; Re Howard^
7 Ir. Ch. R. 344).
This generality may, however, be restrained by the design
OBJECTS OF PARTICULAR POWERS. 495
and tenor of the will ; Lut the onus probxitdi is on the person
desiring to restrict the generality {Leigh v. Norhury, 13 Ves.
344; 111' Benin, 10 I. 11. Eq. 81). An examj)le of this is given
by the rule in Sihlri/ v. Perry (7 Ves. 522), viz. that where the
"parent" of "issue" is spoken of, the word "issue" is pritiid
facie restricted to mean children of that parent. The rule
applies equally to deeds and wills {rrueit v. Oahonw, 11 Sim.
132; and see Lee.<i v. Lees, 5 I. E. Eq. 549).
The generality of the term may also Le restricted by subse- Restricted by
quent expressions in the instrument creating the power, if sucli expressions
instrument be executory, or be a will. In Stviff v. Sicift (8 Sim. JIJ^Jr^enT
1G8), a fund was settled by marriage articles (after successive or will,
life estates to the husband and wife) on the issue of the
marriage, in case there should be any living at the death of the
husband and wife, in such manner, shares, and proportions as
the husband should appoint, and for want of such appointment,
to such issue, share and share alike if more than one, and if but
one, then the whole to go to such only child ; and in case there
should not be ani/ issue of the marriage living at the death of the
sm'vivor of the husband and wife, then over. The Yice-Chan-
cellor thought that the expression " and if but one," the whole
to go to such only child, was demonstrative that the word
" issue " meant cliildren.
In that case, it is to be observed that the articles which
created the power were executory; (see, too, Edwards v. Edwards,
12 B. 97 ; Dahell v. Welch, 2 Sim. 310, where the power was
created by a will) .
" There are two classes of cases on the construction of the
word ' issue ' : those which relate to settlements, and those
which relate to wills. The Court has often laid it down that
marriage articles are to be treated only as a memorandum of
instructions, which are to be carried out in such a way as to
ejffect the intention of the parties. But the Court never deals
in that way with an executed instrument ; it always takes such
an instrument as it finds it. With regard to wills, the Com!
always looks at the intention of the testator, and adopts in
practice, if not in 'theory, a much more benignant rule of con-
406 A CONCISE TREATISE ON POWERS.
stmction" (Be ITdrrcu, 26 Cli. D. at p. 217; see, however, Re
JDivon, 4 I. E. Eq. 1, where the Court of Appeal appear to have
thought that " issue " in a marriage settlement has a different
prima facie meaning from that which it hears in other instru-
ments [sed qu.)). The meaning is not restricted because the
gift over in default of appointment in a settlement is to children
{Do)W(jhue V. Brooke, 9 I. E. Eq. 489; and see Be Meade, 7 L. E.
Ir. 51 ; Be Denis, 10 I. E. Eq. 81).
There is a curious case of Norman v. Norman (Beat. 430), in
W'hieh a testator gave A. (in certain events which happened)
power to charge real estate with 3,000/. " as and for a provision
for his lawful issue ; " and A. by deed charged the estate with
the sum of 3,000/. *' as a pro\ision for his lawful issue." L. C
Hart regarded the case as one of portions, to be dealt with on
the principles peculiar to portions, and held that all the children
living w'ere entitled ; that the eldest son (who had attained twenty-
one) took a vested interest in an aliquot portion of the fimd ;
that infants did not take a transmissible interest before they
required it, but that tlieir shares vested only as each from time
to time required a portion ; and that, as each share vested, the
remaining fund became divisible amongst all persons then in
esse, and not before provided for, as on a new period of distri-
bution. Lord St. Leonards (Sug. Pow. 675) points out that the
decree produced inequality amongst the issue, and might exclude
some to come in esse ; and says that it was an attempt to make
a settlement not warranted by the deed executing the power.
Secus, in But if the power is contained in an executed instrument, the
fubtrument. Court wiU not readily adopt a construction that will cut down
the word " issue " to " children." In Harrison v. Sijmons (14
W. E. 959), a settlement contained a power of appointment (in
the events which happened) among all or any one or more of
the brothers and sisters of A. who should be then living and the
issue of any one or more of them who should be then dead
leaving issue, in such shares, &c. as the said A. should by deed
or will appoint ; and the trust fund was limited in default of
such appointment on trust for all the brothers and sisters who
should be then living of A. and the issue of any of her brothers
OBJECTS OF PARTICULAR POWERS. 497
and sisters who should be then dead, the i>>sue of any deceased
hrotlier or sister to take only such share as such brother or
sister would have taken in case he or she had been then living,
and the children of each deceased brother and sister, if more
than one, to take in equal shares as tenants in common. Y.-C.
Wood held that the word " issue " was not to bo restricted to
children.
5. It is a question of construction, to be decided according to Children
the intention expressed in each case, whether a clause of sub- fo^ parents,
stitution will make the substituted persons objects of the power,
or merely entitle them to the benefit of the gift in default of
appointment.
In Fox V. Gregg (Sug. Pow. 946), a testator gave his wife
power to appoint among certain of her cousins " in such shares
and proportions, manner, and form " as she should direct, and
in default among them equally ; and he provided that the
children of such of his cousins as were then dead or as should
die in his wife's lifetime should " stand in the place of their
deceased parent or parents," and be entitled to such interest as
the parents would have taken if they had survived the wife.
The wife appointed in such a manner as to make it necessary to
decide whether the power was a non-exclusive one and embraced
the cousins living at the wife's death and the children of such
as were then dead. It was hold that it was ; the substituted
children were held to be objects as much of the power of
appointment as of the gift in default.
In Xmtliencay v. Fry (Kay, 172), there was a bequest of
residue in trust after the death of the testator's wife, to be
divided amongst all his childi-en, including A. if then living, in
such manner and proportion as the testator's wife should by will
appoint, provided that A.'s share should not be less than that of
any of the other children ; and in default of appointment, to be
divided among all the testator's children li\'ing at his wife's
death, including A. Moreover, if any child should happen to
die before the testator's wife, leaving children, such children to
have the share of their deceased parent. This power was held
not to include the children's children as objects : theii- interest
F. K ^
498
A CONCISE TREATISE ON POWERS.
Power to
appoint
among
younger
children.
was confined to the gift in default of appointment ; (see both
these decisions observed on, Sug. Pow. 690).
6. Under a power of appointing portions to younger
children as a class, an eldest son, whether such
by birth or survivorship, can take no benefit :
and that too, although an appointment has been
made to him when he was actually a younger
son, in consideration of marriage (^ChadwicJc v.
Dolemcm, 2 Vern. 528).
The same rule applies to a gift in default of appointment.
"There is no sound distinction between construing that tacit
condition of the continuance of the capacity of a younger child
in the execution of the power of appointment, and in default
thereof" {Lord Teynham v. Wehb, 2 Ves. sen. at p. 212).
If a provision is made for the eldest son, and then other
benefits are given to the younger children, the intention is
taken to be that the person who becomes entitled to the pro-
vision intended for the eldest son shall not take any part of the
benefits provided for the younger children, although, at the
time when such interest vested, he was one of the younger
children ; and conversely, it is held that a younger child who
becomes the eldest, although strictly excluded from sharing in
the benefits provided for younger children, yet if he does not
take the provision made for the eldest son, by reason of its
having been disposed of by his elder brother in his hfetime, is
not treated as the eldest son, so as to be excluded from taking
his share with the younger childi-en [Matthews v. Paul, 3 Sw.
328 ; Colling wood v. Stanhope, L. E. 4 H. L. 43).
It is now well-established law, that where the bulk of an
estate is settled in strict settlement, and by the same settlement
portions are provided for younger children, no child taking the
bulk of the estate by virtue of the limitations in strict settle-
ment shall take any benefit from the portions : and this is so,
whether the settlement does or does not contain an express
provision to exclude him from a share in such portions
OBJECTS OF PARTICULAR POWERS. -1^9
{Macouhrey v. Jones, 2 K. & J. G84 ; Davics v. Uur/ueiiiii,
1 H. & M. 730).
It depends on the intention of the settlor or testator in each
case ; thus the fact of the eldest son being excluded by name
would bo material ( Wood v. Wood, 4 Eq. 48) ; but the rule is
the same whether the property bo real or personal {Ee Baijlei/,
6 Ch. 590).
In Chadicick v. Dokman (2 Yem. 528), A. was tenant for life,
with remainder to trustees to raise 4,0.00/. for his younger
children as he should appoint, with remainder to his first and
other sons in tail. The fatlier irrevocably appointed 2,000/. to
B. the second son. The eldest son died six years after : 13. there-
upon became eldest son, and A. made another appointment of
the 2,600/. It was held that the first appointment was de-
feasible, not from any power of revoking or upon the words of
the appointment, but from the capacity of the person. He was
a person capable to take at the time of the appointment made,
but that was 8uh modo, and upon a tacit or implied condition
that he should not afterwards happen to become the eldest son
and heir. This doctrine of a tacit condition lias been recog-
nized in Savage v. Carroll (1 B. & B. 265) ; Lonl Teynham v. Wehh
(2 Ves. sen. 198) ; Hall v. Hciccr (Ambl. 203) ; Lady Lincoln v.
Pelham (10 Ves. 160) ; Bowles v. Bowles (10 Ves. 177 ; ;jtT
Sir Thomas Plumer, 3 Sw. 340 ; Sug. Pow. 619).
The power must be to appoint among, or the gift must be to The objects
younger children as a class and not persons named : a younger younger
child who is named as an object by the author of the power will f 'jjjg]' ^^
take under an appointment to him, although he becomes the
eldest son. In Jermyn v. Fellows (Ca. t. Tal. 93), a power was
given by Act of Parliament to a father to appoint among his
younger chikben A., B., and C. A. by his eldest brother's
death became entitled to the provision made for the eldest son ;
but a subsequent appointment to A. was held good.
The rule last stated must, however, be taken subject to these
qualifications :
In order to exclude an eldest son from being Qnaiification
of last stated
K K /3 rule.
500 A CONCISE TREATISE ON POWERS.
an object of a power to appoint portions among
younger cliilclren as a class, such eldest son must
take the estate under the instrument of settle-
ment ; and such estate must be settled, whether
by marriage settlement or other instrument or
w^ll, by some person standing in loco 'parentis.
The eldest The term " eldest son " does not mean firstborn son, but the
the estate. '^ son who takes the family estate under the settlement [CoIUng-
icood \. Sf (III //ope, L. R. 4 H. L. 43), "Eldership not carrying
the estate along mth it is not such an eldership as will exclude"
{Buke V. Boidge, 2 Yes. sen. 203 n. ; He Theed, 3 K. & J. 375).
In Domvile v. Whtnington (26 Ch. D. 382), a fund was settled
by deed in trust for A. for life, and after her death for all her
children, except an eldest or only son, who should attain twenty-
one or marry. The settlement was not made by a person in loeo
pareidk, nor did it contain any reference to the family estate :
and it was held that eldest son had its ordinary signification,
i. e., firstborn, as in the case of a limitation {Aferedith v. Trejfri/,
12 Ch. D. 170), or a shifting clause {WilhraJiam v. Scarisbrick,
1 H. L. C. 1G7 ; and see Bathurst v. Frnngfon, 2 Ap. Ca. 698).
But if the words and intention are clear, a younger son
becoming an eldest son will be excluded, although he takes no
other provision. In Livesey v. Livesey (2 H. L. C. 419), the
testatrix gave the eldest son of E. ten guineas, because he would
have a handsome provision from other sources, and she gave one
moiety of her residuary estate on trust to be divided among the
children of E. then or thereafter to be born, except her eldest
son, or such of her sons as should by the death of his brother become
an eldest son. The eldest son of E. was in fact handsomely
provided for ; he died, but the second son, who thereupon
became the eldest, did not succeed to the provision : he was
nevertheless excluded. The Court thought that such provision
was not the reason for the exclusion ; for, by a subsequent clause
in the will, the eldest daughter was also excluded, and the clause
of exclusion in the will had no reference to the fact of the
OBJECTS OF PARTICULAR POWERS. i^Ol
person to be excluded taking other property, and therefore tlie
period of vesting was alone to be regarded. If the Court liad
thought that the reason for the exclusion was that the elder son
took some other estate, they would probably have come to a
different decision {per V.-C. Wood, -"i K. & J. 381).
The fact that the estate is entirely exhausted by providing
the portions is no ground for giving the eldest son a portion
{Reid V. Hoaro, 26 Ch. D. 3G3). The principle that an elder
child unprovided for shall be deemed a younger, means an elder
child unprovided for by the settlement or will itself, or by means
which were in the contemplation of the parties making the
settlement or will {Peacockc v. Fares, 2 Keen, 689).
The principle of C//adicick v. Do/</naii does not apply to a Eldest son
younger son succeeding to the reversion of the settled estates, under the
not under the settlement, but by descent {Sinfj v. Leslie, 2 H. & settlement.
M. 68), The principle that there is a tacit condition, that a
yoimger son, becoming entitled to property limited by a settle-
ment, shall be treated not as a younger but as an eldest son, in
respect of that settlement, applies only to cases where he takes
under such settlement.
It may be that, notwithstanding that the words in the settle-
ment are " entitled under the before-mentioned limitations to
the settled estates," if a resettlement is made which simply
reproduces the limitations of the settlement with an oveniding
joint power of appointment which has never been exercised, a
court of equity would regard the substance of the transaction,
and hold that, as the original settlement was left in the result
unaffected, the disentailing deed and resettlement might bo dis-
regarded {lie Fitz(jerahl, 1891, 3 Ch. at p. 398 ; WijtuUKim v. Fcoie,
11 lla. 287). But if this be so, it does not apply to a case where
the eldest son has joined in executing the joint power by way
of mortgage, and has taken out of the estate a sum equal to tlie
amount that as younger son he would have been entitled to as
a portion {ibid.). In the cases of sliifting uses, where the eldest
son becomes entitled to another estate, the whole estate must
substantially be acquired {Mei/rick v. LdivK, 9 Cli. 237). But
the analogy of this class of cases must not be pressed too far ;
502
A CONCISE TREATISE ON POWERS.
Settlement
must be made
by parent.
for it must be remembered that different considerations apply to
the ease of portions for younger children {ColUngwoocl\. Staii/iope,
L. E. 4 H. L. 43).
So, where under a power in a marriage settlement uses are
revoked and new uses declared, whereby a younger child, who
has since become an eldest son, takes through the mere bounty
of the donor property which, but for such revocation, he would
have taken as eldest son under the settlement, he does not
thereby cease to be entitled to the portion of a younger child
imder the settlement [Wandesforde v. CarricJc, 5 I. R. Eq. 486;
and see JoJtnson v. Fouh/s, 5 Eq. 268).
Not only must the eldest son take the estate under the instru-
ment of settlement, but such instrument must be made by some
person standing to him in loco parentis.
In Sandeman v. Mackenzie (1 J. & H. 613), by a marriage
settlement the husband covenanted to pay 10,000/. for the
children of the marriage ; and for want of such children, for
the children of the wife by a former marriage (other than A.
her eldest son), as the husba^id should appoint ; a^nd in default,
for all who should attain twenty-one equally, or if but one, then
for such one younger child. There were no children of this
marriage, but there were two children besides A. of the first
marriage ; all attained twenty-one. A. died, but it was held
that the second son, who thereupon became the eldest and
succeeded to the family estates, was not excluded from the
benefits of the settlement, for the husband stood in no parental
relation to him. It is to be observed that the eldest son was
excluded by name in this case ; but the decision was not founded
on that; (and see Hall v. Heiver, Ambl. 203).
In Lord Teynham v. Wehh (2 Ves. sen. 198), there was a
power of appointment among younger children, and a younger
child became eldest and was excluded ; the settlor and author of
the power was the grandmother. In Lady Lincoln v. Pelham
(10 Ves. 166), the testator was the grandfather.
Period for
ascertaining
the class of
The period when the fund becomes distri-
butable is the period for ascertaining- the true
OBJECTS OF PARTICULAR POWERS. SO-l
construction of the instrument of settlement and younger
chudren.
the position of tlie children inter se ( Collingivoocl v.
manhope, L. R. \ 11. L. 43).
With regard to all questions arising on provisions for children
under marriage settlements, the Court imputes to the pai-ties
(however differently that intent may ho expressed, so long as it
is not contrary to what is actually found in the settlement) a
desire to provide equally for the children, that no child should
take a double portion, and that no child should be excluded
{ihid. 52).
This principle seems appHcable also, though perhaps to a less
degree, to wills. made by persons in favour of objects to whom
they stand in loco parentk.
It follows therefore that, although it should be said in tenns
that the elder child is not to have a portion, yet if under such a
settlement the one who is really the elder child does not take
the family estate, then, the family estate going to a younger son,
the Court regards not the elder born, but the younger brother
who is in possession of the family estate, as the elder, and the
actually elder as the younger, in order to introduce him into the
benefits of the portions provided for younger children. The
Court will not allow portions to be indefeasibly vested so as to
give a double portion to one child and exclude another. Al-
though one child lias held the place of a younger chdd during
the period that the settlement has been in existence— that is to
say, subsequent to the marriage of the parents — and has there-
fore become entitled to a portion, and has even had a portion
assigned to him, yet if at the period of distribution that child
has become an eldest child, then he is no longer entitled to a
portion, and the portion which has been assured to him is no
longer his; he takes the family estate and the rest of the
children are let in as younger children to the benefit of the
fund out of which the portions are to be pro^-ided, including
that portion of the fund which had been assigned to him who
has now become the elder child (ihid. 53). This would appear Mustapor-
1 tion appointed
to extend to cases where the portion lias been not merely aud paid be
refunded '<
504
A CONCISE TKEATISE ON POWERS.
"WTicn the
eldest bom's
estate is
entitled to
benefit of
portion.
T^Tien the
eldest son
prevents
estate from
devolving on
him by his
own act.
appoiuted but lias actually been paid over, if such payment has not
been made by means of a release of the appointor's life interest.
Lord St. Leonards (Pow, 680) says that the change of character
must take place before the receipt of the money ; that clearly a
younger sou becoming eldest and taking the estate, cannot be
called upon to refund a portion received out of the estate whilst
he was a younger child and in that character; but this can
hardly be intended to apply to cases where the portion has been
advanced before the period at which it would have been naturally
payable.
If the elder child, entitled in reversion on the death of his
parents, predeceases them, so that he never becomes owner in
possession of the estate, but his next brother acquires the owner-
ship, the estate of the deceased eldest born is entitled through
his executors to a share in the provision intended for those who
did not take the family estate {EUiaon v. TJto))ias, 1 D. J. & S.
18; Davies v. Hugnenht, 1 H. & M. 730).
But it will be otherwise if the eldest son has himself by his
own action prevented the estate from devolving on him under
the settlement, by anticipating it for the purpose of resettlement
or otherwise. In CoUingu-ood v. Sfari/iope (L. B. 4 H. L. 43),
the eldest son was tenant in tail : he joined with his father in
barring the entail and re-settling the estate ; in that case he was
held to have had the full benefit of the estates and to be within
the words " the eldest son entitled under the will "; (and see lie
Fitzgerald, 1891, 3 Ch. 394).
A^iioarcob- 7. A powcr of appointment among the "relations" or
jects of a
power to ap-
point among
relations.
the ''family" of the testator or of A., can be
well exercised by an a2:»pointment to any relations,
although not within the degree of next of kin,
if the power authorizes selection (Grant v. Z?/nam,
4 Russ. 292 ; Ilardmr/ v. Gipi, 2 W. & T. L. C).
But if the power authorizes distribution merely,
and not selection, the donee is confined to the
i05
OBJECTS OF PARTICULAK POWERS.
next of kin according to the statute {Pope v. WJdt-
combe, 8 Mer. GS9).
" The word relations in gifts of this cliaracter has received a
settled meaning : and the only point is whether the executors
had under the will a power of selection, or a simple power of
distribution. It is plain that in the latter case they must con-
fine themselves to the class falHng within the limits of the
Statute of Distributions" {per Sullivan, M. E., in Laichr v.
Henderson, 10 I. 11. Eq. 150). It has not been decided whether
Lord Selborne's Act has affected this rule.
The primary meaning of the word "family" is children "FumOy."
{Pir/(j V. Clarice, 3 Ch. D. G72). It does not, in the will of a
married man, include his wife {lie Hutchinson and Tenant, 8
Ch. D. 540 ; and see CommisHioners of Charitable Donations v.
Decy, 27 L. E. Ir. 289). But there may, of course, be a con-
text which shows that the word has been used in a secondary
sense. Thus, in Maelvrofh v. Bacon (5 Yes. 159), a power to
appoint for the benefit of a married woman and her family was
on the construction of the whole will held well executed by an
appointment to her husband. And the instrument containing
the power may itseK furnish an interpretation of the expression.
In White V. Bri(j(js (15 Sim. 17), a testator directed that the
property whicli he had given by his will to A. should be
" secured for the benefit of his family." In the same mil he
used " heirs " and " family " as synonymous terms. The Yice-
Chancellor thought that by family he meant the children, but
not the wife, of A.
In Lambe v. Eanics (6 Ch. 597), L. J. James seemed to con- iiiegitimato
sider it the better opinion that a gift to A. "to be at her disposal °
in any way she may think best for the benefit of herself and
family," gave A. the property absolutely. lUit if it did not, he
held that an appointment thereimder to an illegitimate child
was valid. He said that it was impossible to put any restriction
on the meaning of the word, or to exclude any person who, in
ordinary parlance, would be considered within the meaning.
506
A CONCISE TREATISE ON POWERS.
Family or
next of km.
Heirs of the
body.
What rela-
tions are
entitled in
default of
appointment.
The word might inchide sons-iu-Law and daughters-in-law and
many others.
In SiWiPY. Teed (9 Eq. 622), a power to an unmarried woman
to appoint a fund amongst her own *' family or next of kin "
was held well exercised hy an appointment to a nephew, nieces,
and a great niece in unequal shares. The power authorized
appointments to any person related to the donee in the ordinary
acceptation of the word family, which would not, strictly speak-
ing, be confined to statutory next of kin ; (and see lie Snscnini,
26 W. E. 93).
In lie Jeajfreson (2 Eq. 276), there was a gift to trustees on
trust to pay the fund to the heirs of the body of A. at their
respective ages of twenty-one, in such proportions as A. should
appoint. The objects of the gift and power (which, it will be
observed, is a non-exclusive one) were held to be such of the
statutory next of kin of A. as were descended from her.
In Sinnott v. Wahh (5 L. E. Ir. 27), there was a devise in
1837 to the testator's two sons, followed by the words " should
either of my sons die in my lifetime without issue, his part of
the property to fall to whatever existing member of my family
he may -s^ill it to." This term was held to be nomen collectivum,
authorizing a testamentary appointment to one or more persons ;
(and see Pyot v. Pyof, 1 Yes. sen. 335 ; Marsh v. Marsh, 1
B. C. C. 293 ; Boys v. BradJey, 17 lur. 159).
8. If the power be not executed, the fund will, without refer-
ence to the power having been exclusive or merely distributive,
be divided amongst those only who would take under a gift in
like terms if no power had been created, unless a contrary intent
appear in the instrument (Sug. Pow. 659).
A gift to the relations of a man, or to his family if he had died
without a child, would prima facie include all persons related in
however remote a degree : but such a construction would make the
gift void for uncertainty. In order to obviate this, it is settled
that a gift to relations or family is confined to the next of kin
according to the Statute of Distributions, unless there are special
expressions showing a different import [Mahon v. Savage, 1 S. &
OBJECTS OF PARTICULAR POWERS. 507
L. Ill ; nihherf v. nihhert, 15 Eq. 372; Wihon v. Burjxul, 24
Ch. D. 251). " Where the Court holds that there is a trust in de-
fault of appnintmont, wherever it is a trust for relations, the Coart
puts the construction upon it that if it be a gift to one for life,
and after the gift to that person, a gift to the relations of that
person, it is the next of kin of that person" (perY.-C Kin-
dersley, Br CapUu, 34 L. J. Ch. 580 ; 2 Dr. & Sm. 527). The
construction is the same if the gift be to " friends or relations "
(ibid.), or "to friends and relations" {Goicer v. Maimcaring, 2
Yes. sen. 86).
The Court has said, however, that tlio claimants shall not In '"'hat
-shares they
always take in the proportions of the statute, if the testator take.
has indicated any contrary intention : as for instance, where
there has been a power of appointing among " brother and
brother's sons," or " children or their issue," the Court has held
that under the implied gift all the objects of the power took,
not by representation, but 2)et' capita {Green v. Hoiran/, 1 Bro.
C. C. 32; Ite White, John. Q^iiS). So, a gift of residue to be
distributed " to my relations share and share alike as the law
directs," was held to mean a distribution under the Statute of
Distributions, and noi per capita {FicMen v. A-sh north, 20 Eq. 410).
And although under a gift to the persons who would be As joint
entitled under the Statute of Distributions, or to the persons
entitled under the Statute as next of kin, the persons entitled
would take in the statutory shares and not in joint tenancy
[BuUocTc V. Doicncf^, 9 H. L. C. 1), if the gift be to " relations "
sinip/iciter, they will take as joint tenants {Ear/ks v. Lc Breton,
15 Eq. 148). And as to children, see Be Phene (5 Eq. 346) ;
Armstrong v. Armxtrong (7 Eq. 518).
And as the objects take under the will and not as nnder an Real estate,
intestacy, they can take real estate {Walter v. M((iinde, 19 Yes.
424).
Under a gift by will to the testator's relations, his wife Wife,
cannot take, for the statute provides for her by the name of
wife {Green v. Hoicard, 1 Bro. C. C. 32).
Where a life interest is given by will to a party, with power Who take in
to select the relations (that is, to such as he shall appoint), it is appointment
508
A CONCISE TREATISE ON POWERS.
when there is
a prcvnous
life estate.
Where no
preceding
life estate.
Particular
class pointed
out.
"Nearest.
'■ Poor.
firmly settled that, in default of appointment, the persons
entitled are not the relations living at the testator's death, but
those who are living at the death of the donee of the power
(Sug. Pow. G61, citing Do>/Iei/ v. A.-G., 4 Yin. Abr. 485 ; Ee
CapUu, 2 Dr. & Sm. 527; Crmcys v. Co/man, 9 Yes. 319).
And the rule is the same if the power be one of distribution
merely, and not of selection {Finch v. HolUngsworth, 21 B. 112,
correcting the report oi Fope y. W/iitcombe, 3 Mer. 689). "A
decision in the contrary way might be productive of great
inconvenience : in many cases it might be impossible for the
donee to exercise the power, for all the relations living at the
testator's death might be dead at the decease of the donee of
the power, and therefore there might then be no person in
whose favour an appointment could be made" (21 B. 1 1 6) . This,
however, is a different proposition from that of Lord St. Leonards,
for it makes the objects a hypothetical class, not the actual next
of kin ; (cf. Fullock v. Foioics, 9 H. L. C. 1).
But where the distribution or selection is not suspended by
the existence of any preceding estates for life, those who are to
take are such as answered the description of next of kin of the
testator at his death {Cole v. Wade, 16 Yes. 27 ; and see ante,
p. 490).
9. If a particular class is pointed out, the donee is
confined to that class, and to that class alone the
Court will give it in default of execution.
In Goodimjey. Goodinrjc (1 Yes. sen. 231), a bequest to such of
the testator's nearcd relationfi as A. should think poor and
objects of charity, was confined to relations within the Statute
of Distributions.
In Siiiitlt, V. CamphcU (19 Yes. 400), a devise to "nearest
relations " was confined to brothers and sisters. And " next of
kin" smpUdter has been held to mean " nearest of kin," and not
according to the statute {Elmdcy v. Young, 2 M. & K. 780).
The addition of the word " poor " will not operate to extend
the gift to relations beyond the statutory limit : although, if the
power authorizes selection, the donee may appoint to relations
OBJECTS OF PARTICULAR POWERS. 509
not witliin the limit who are poor {Grant v. L;/nam, 4 Russ.
292).
In Wuhnorc v. Woodroffc (Ambl. 030, 040), the Lord
Chancellor said : — "Several eases have been cited, all proceed-
ing upon the same ground, making the Statute of Distributions
the ride, to prevent an inquiry which would be infinite and
would extend to relations ad iiijiitituui. The Coiu't cannot
stop at any other line. Thus it would clearly stand on the
word relations only : the word ' poor ' being added makes no
difference. There are no distinguishing degrees of poverty ;
and therefore the Coui't has construed the will as if the word
* poor ' was not in it."
Mahon v. Savage (1 S. & L. Ill) seems to be to the same
effect : see the second point there decided. But the word
" poor " is not nugatory as amongst the statutory relations ;
i.e., although a gift to poor relations is not enlarged by the
word " poor " so as to include relations not withiu the statutory
limit, who are poor, yet in deciding the claims of the statutory
relations between themselves, their poverty or affluence is to be
taken into consideration.
There is no very recent case on the point ; but the remarks of
the Lord Chancellor in Widmore v. Woodrofe, showing the reason
for the rule excluding relations bej'ond the statutory limit not-
withstanding their poverty, do not apply when the relations are
a class easily ascertainable, and the question is merely between
theii' claims ; and it is to be observed that in that case the
defendant was the only next of kin of the testator ; (and see
Thomas v. Howell, 18 Eq. 198).
In Brunsden v. Woolredge (Ambl. 507), a direction that a sum
should bo equally distributed amongst the testator's mother's
poor relations, was construed to mean such of the mother's
statutory next of kin as were poor.
In Ma/ioi) V. Savage (1 S. & L. Ill), the testator bequeathed
1,000/. to his executor to be distributed amongst his poor .
relations or such other objects of charity as should be mentioned
in his private instructions to his executors. No such instructions
were left. One of the statutory relations was a poor man at the
'510 A CONCISE TREATISE ON POWERS.
time of the testator's death, but had become rich previously to
the du'ection to the Master to inquii-e and report. The Lord
Chancellor was of opinion that it was meant as a charitable
bequest, and that the objects of the charity should be the
testator's own relations : that it was nothing more than ascer-
taining a number of objects of charity, who could not claim
except they were such.
In Green, v. Iloicard (1 Br. C. C. 33), the Lord Chancellor
says ohiter that "where a testator has said 'to relations according
to then- greater need,' " the Court has shown particular favour
to one.
If, however, the power is not to be exercised at once, but
contemplates a perpetuity, the gift must be charitable or fail :
and, if it is charitable, it is not confined to statutory next of kin
{Isaac v. Defriez, Ambl. 595 ; 17 Yes. 373, n. ; and see G'dlam v.
Taylor, 16 Eq. 581, commented on by Jessel, M. R., in Attorney-
General y. Duke of Northumberland, 7 Ch. D. 751).
CHAPTER XIV.
POWERS OF JOINTURING.
oil
PAGE
1 . Trior it 1/ of estates created under
powers in settlements 511
2. Powers to jointure are not usual
powers 516
3. Are liberally constnwd 517
4. Execution when contingent on
possession 519
Covenants to execute power .... ib.
Specijic performance 521
PAGE
Damages 521
5. Burdens on Jointures 522
" Clear value " il).
G. Period for ascertaining burdens . 524
7. Jointure accrues de die in
diem ib.
8. Amount in proportion to icife^s
fortune 526
9. Dower ib.
1. As a general rule, where there are several appointments Priority of
made by the same instrument in execution of the same power, under powers,
they all rank equally ; but where there are several appointments
made by different instruments, they rank according to date
{BnltcelY. Plummer, 6 Ch. 160 ; Ee Lord Annaii/, 23 L. E. Ir. 481 ;
Wihon V. Kcnrick, 31 Ch. D. 658). But when there are appoint-
ments made under different and distinct powers, other considera-
tions arise. In order to determine the priority of appointments
made under such powers the estates created must be referred to
the instrument creating the power ; the general rule is that —
Estates authorized to be created under powers
take effect, when created, as if they had been
inserted in the original instrument containing
the power (Lord Brai/broo/ce v. Attorney- General,
9 H. L. C. 150).
" Whenever parties have power by deed to do a particular
act, when done under the power, it is as if incorporated in the
512 A CONCISE TREATISE ON POWERS.
original deed when executed" {Uxhridge v. Bayli/, 1 Ves. jun.
at p. 510). If, therefore, an instrument creates estates and also
gives a power of appointing charges of any sort, whether for
jointure, portions or otherwise, the estates authorized to be
created by the power will, on being called into existence, take
precedence of the estates in the settlement, unless there be a
contrary intention exj)ressed.
In Beale v. Beak (1 P. W. 244), lands were settled on A. for
life, remainder to such woman as he should marry for life,
remainders over, with power to charge the premises with any
sum of money ; such power, unless there be inserted a clause
to the contrary, will, like a power of leasing, overreach all the
estates; (see this case and the appeal therefrom, Gilb. Eq. R. 93,
observed on Sug. Pow. 48G). Lord St. Leonards says there, " If
the rule is universally in favour of portions, there is no distinc-
tion between a jointm-e and portions : but either, when raised by
means of a power, will prevail over the other, if actually created
by the settlement itself. There would, however, be no difficulty
in drawing a distinction between the two charges, which is
pointed out by their nature. Where they come into competi-
tion, the jointure should precede the portions. Where both are
created by powers, and although the portions are first charged,
a jointure would, it is apprehended, prevail over portions.
Upon the same principle a jointure, although limited by the
deed creating a power to charge portions, might be allowed to
prevail over the portions when charged. The proper place in
the settlement in which to insert such a charge is after the life
estate of the father, and subject to the jointure of the wife ; for
such is the position assigned to it in all settlements."
The question must depend on the intention of the settlor or
testator in the particular case, and on the nature of the power.
In MohIcij v. MohIi'i/ (5 Ves. 248), a settlement by father and
son created terms of years to raise portions for the younger
children of the father ; a power was given to the son, subject
to the father's life estate, to charge portions for his younger
children. The son exercised his power; and the charges created
thereby were held to have priority over the charges secured by
PRIORITY OF POWERS.
the terms of years in the settlement for the father's younger
children. The Master of the Eolls said: "The moment the
power is executed, it is as if in the original deed, and in that
way it will stand now. Tliis power is subject to the father's
life estate ; it must he taken as if made subsequently to the life
estate of the fatlior. As soon as he has executed that power,
that term comes in immediately after the estate of his father,
before the other terms, but not before his life estate. . . . The
moment he raises the term it is put in after the life of his father
to wliich the power is subject. I cannot, in point of convey-
ancing, put it anywhere else. It may be a blunder of the
conveyancer. . . . That it is strange, must not be talked of
either upon a deed or upon a will ; but I must ask, what is the
construction?" In Bevau v. Bccan (13 L. E. Ir. 53), the
Master of the Rolls held that portions had priority over a join-
ture on the ground of the position in the settlement of the term
for raising the portions; and he said that Moaky v. Jfo-s/ci/ was
decided on the position of the terms of years in the settlement
of 1784, and not in the original settlement of 1782. In
Beran v. Bcran, the term of years was prior to the life estate
of the donee of the jointuring power.
In Simpson v. O'Sid/iran (7 C. & F. 550), lands were settled
on A. for life witli remainder to trustees to raise an annuity for
A.'s widow for her jointure; and the settlement contained a
power for A. to raise a sum for his own benefit ; the power,
when exercised, overrode the widow's annuity.
In B(n7<>// v. Tcnnaid (11 Ex. 776), lands were vested in the
trustees of a marriage settlement for a term of years to secure
portions for younger children of that marriage ; and the settle-
ment also contained a power for the husband to jointure a future
wife. The power was eventually exercised, a term being limited
to secure the jointure. This jointm-e was held to take priority
over the term for raising portions for the childi'en of the first
marriage.
In Be Lord Anna/// (23 L. E. Ir. 481), the tenant for life had
power to appoint a jointure without prejudice to any prior
subsisting uses or powers ; and his life estate was subject to the
513
514
A CONCISE TREATISE ON POWERS.
MarshaUin"-.
Priority of
powers in the
same instru-
ment inter se.
trusts of a term already carved out of it. It was held that the
jointure also was subject to these trusts.
In JRc Crcofjh (25 L. R. Ir. 128), the life tenants under a will
had jiowersof jointuring wives and portioning younger children.
They joined witli the tenants in tail in remainder in re-settling
the estate, and by the re-settlement gave to the two first life
tenants power to charge gross sums for their own benefit, and
also gave them power, when in actual possession, to jointure and
charge portions. The jointures and portions were held to be
subsequent to the gross sums charged under these powers.
It has been held that the doctrine of marshalling, as applied
in AveraU v. Wade (LI. & Gr. 253), extends to the case of a man
who reserves a power to himself as well as to that of a man who
retains an estate. In Re Barker (3 L. R. Ir. 395), a marriage
settlement recited that charges existed on the settled estates to
the amount of 65,000/. or thereabouts, and the settlor covenanted
against all other incumbrances, and reserved to himself power to
charge the settled estates in priority to the uses declared by the
settlement with such sums as, together with the 65,000/., should
not exceed 84,000/. The incumbrances on the settled estates
were in fact 78,500/. The settlor mortgaged under his power ;
and the Landed Estates Court held that the covenant against
incumbrances gave the beneficiaries an equity against the settlor's
appointees to the extent of the difference between the 65,000/.
and the 78,500/. The learned judge bases his decision on the
doctrine of AveraU v. Wade; but it is submitted that it was
really a question of excess of power. The appointor had power
only to make up the charges on the estate to 84,000/. ; his
appointee could not claim against the beneficiaries to any extent
beyond 84,000/. ; and it was for them to show the appointor's
title ; and they could only do this to the extent of the difference
between 78,500/. and 84,000/.
Where several powers have been given by the same deed, and
two or more of them are executed, and no provision has been
made in regard to their priorities, the intention of the settlement
and the object of the powers are the best guides to the construction
(Sug. Pow. 488).
PRIORITY OF POWERS. '515
A jointure takes effect from the nature of things immediately Priority of
1 T -n 11 • 1 joiuture.
upou tlio husband 8 deatli. It will, as a general rule, oveiTide
all powers and estates in the same settlement ; unless it be other-
wise provided by the instrument creating the power (Sug. Pow.
485 ; Hall v. Carier, 2 Atk. 354 ; Saixhjs v. Sandi/H, 1 P. W.
707 ; Reynohh v. Meyrick, 1 Eden, 48).
It will be otherwise if the portions are in effect appointed
under a power in a former settlement {B.e Ka-^/i, 5 Ir. Ch. R.
384).
And if a j ointure, when it arises, is intended by the creator of
the power to take effect merely as one of several rent-charges or
annuities, it will have no precedence, and on a deficiency of
assets must abate with the other annuities pari 2)»-^su. Thus in
Coore V. Todd (7 D. M. & G. 520), a testator devised lands to
trustees on trust out of the rents to pay an annuity to A. B.
until he attained twenty-five (when he was to have possession of
the estates), and an annuity of 400/. a year to C. D. for life,
and an annuity of 150/. for the maintenance of any infant
tenant in tail during minority ; and without prejudice to the
trusts aforesaid, and to any jointure to be created under the
power thereinafter contained, to pay the surplus rent to the
mother of A. B. until he should be entitled to possession of the
estates, and subject to the trusts aforesaid, the trustees were to
hold the estates in trust for A. B. for life, with remainder to his
eldest son in tail, with power to A. B. to appoint a jointure to
any wife, with usual powers of distress and entry, to take effect
immediately after his decease. A. B. appointed a jointure
under his power and died, leaving his widow, who gave birth to
a posthumous child, who became tenant in tail. The income
proved deficient ; and it was held that C. D.'s annuity, the
maintenance annuity of the infant tenant in tail, and the
jointure must abate rateably ; but that there should be no
retrospective apportionment so as to affect the amount received
by C. D. previously to the birth of the infant tenant in tail.
Lord St. Leonards concludes that with respect to the ordinary
powers in a settlement, their relative priorities may bo left to
the operation of law, since the order in which they take effect
ll2
510 A CONCISE TREATISE ON POWEKS.
is matter of inference from their nature ; to which Mr. Davidson
(vol. iii. 489) adds, that with settlements containing powers of
charging for the donee's own benefit, or for other persons not
comprised in the ordinary and recognized scheme of strict
settlement, it is proper to define with exactness the extent to
which it is intended that thej shall override the settlement.
Priority of Powers of salc, exchange, and partition, necessarily override
Ball^&c? ^^11 estates created by the settlement, unless there be any inten-
tion expressed to the contrary, and subject to any estates which
have been created under paramount powers (Sug. Pow. 482-3).
But powers of leasing generally or always have precedence,
although there be no clause marshalling the powers {per Y.-C.
Kuight-Bruce, 1 De Gr. & Sm. 659). It holds generally true
that a power to create leases to take effect in possession will
control and overreach all the powers and estates in the settle-
ment (Sug. Pow. 483 ; Lewis v. Rees, 3 K. & J. 149, 150 ;
Ishencood v. OWaww, 3 M. & S. 404-5 ; Doe v. Thoman, 9 B. &
C. 288 ; Ycllaml v. FicUs, Moore, 788).
In Tuijhr v. Stihhcrt (2 Yes. jun. 437), a purchaser from
tenant for life under a power of sale was held bound by the
covenants and terms of a lease granted by the tenant for life in
execution of a power of leasing (although such lease transgressed
the terms of the power) to the same extent that the tenant for
life himself would have been bound.
As it is impossible that a settled estate can be enjoyed except
by means of the exercise of a power to lease, the Courts never
allow leases granted by the tenant for life under his power to
be defeated by the exercise of a power in the trustees to appoint
new uses with the concurrence of the tenant for life (8 Sim.
158).
Are not 2. Powers of jointuring are not, it seems, usual powers
within the meaning of a direction to make a settlement " with
all usual powers " : for they diminish the estate, and there is no
certain rule as to their quantum ; the words " usual powers "
refer to the usual and necessary powers of management (cf. Hill
v. Hill, 6 Sim. 145).
In marriage settlements, these powers are usually limited to
■ usual
powers
POWERS OF JOINTURING. ol~
enabling the husband to jointure a future wife, but in family
settlements, and in wills, they extend to enable the successive
tenants for life, as they come into possession, to provide for their
wives (Davidson, iii. 4G6, 3rd ed.).
3. A power to jointure, although a burden on the estate, is Liberally
liberally construed in equity, so far as its execution is concerned, ''°°'*
inasmuch as the object is one of a class highly favoured by the
Court. Thus, equity will aid a defective execution of a power
to jointure. In Coventry y.Covcittnj (2 P. W. 222), a covenant
in marriage articles to convey and appoint estates after the
marriage for jointure according to the power of the covenantor
or otherwise, was aided as a defective execution. And a cove-
nant to limit a jointure, in execution of a power which is only
to be exercised when the donee is in possession, has been aided
{Alford V. Alford, cited 2 P. W. 230).
The question whether a particular power can be exercised in When exer-
favour of a wife already taken, or of a second wife, must depend carriage or
on the wording of the power in question. In Re Borrour.s (2 gg/^^'J'^ye^
I. E. Eq. 468), there was a devise of land to two brothers
successively for life, and power was given to them, when and as
they should respectively become seised in possession, by deed or
writing " to be made upon or previously to their marriage," to
jointure their wives. One of the life tenants married after the
date of the will, but before the testator's death in 1834. His
execution of the power was held invalid; (and see Dillon v. Billon
11 Ir. Eq. P. 423). In Be Creagh (25 L. P. Ir. 128), the
tenants for life were empowered " at his or their mamage " to
charge jointures and portions. This power was held to be
exerciseable at any time after marriage. In Mill-i v. Milh (8 Ir.
Eq. P. 102), marriage articles secured a jointure for the wife
and portions for the younger children, and then proceeded to give
power to the husband to appoint a jointure to any wife he might
marry and portions for younger children. This power was
held to be exerciseable only for the benefit of a second wife and
her children.
The limits of a power of jointuring are usually clearly
defined ; the remaindermen are entitled to say that those limits
518 A CONCISE TREATISE ON POWERS.
sliall not bo exceeded ; but within sucli limits, the Court mil
give every aid to the jointress.
Not usually It would therefore, it seems, require express words of restric-
restricted to . . p • • • i i i i
one -nifc. tion to make it necessary that a power of jointuring should be
exercised idw flatu : or that it should be exerciseable in favour
of one wife only.
In Zouch V. Woohton (2 Burr. 1136), the words were that the
husband should have power " from time to time during his life,
by deed or deeds, writing or wTitings, to limit all or any part
of the estate to any woman or women that shall be his wife or
wives, for and diu-ing their life or lives ; " and it was held that
the power might be executed at difPerent times ; for the words
were applicable to each respective wife, and empowered the
husband to make different settlements upon the same wife.
In Herrey v. Henry (1 Atk. 561), the power was to settle
lands of a certain value for a jointure or provision for such wife
during her natural life (2 Burr. 1144), Lord Hardwicke said
that it was very plain that it was a power to settle a jointure
upon any after wife, and so tofies quofic-s upon any subsequent
maiiiage.
In Mmdthy v. Maulfby (2 Ir. Ch. E. 32), a testator devised
estates to his son for life, with remainders over, and empowered
him to make a settlement for the use of any wife he might
marry. The son executed a settlement upon his first marriage,
and purported thereby to reserve to himself power to jointure a
second wife. He mamed again after the death of his first wife,
and charged a jointure for the second wife, as if in execution of
the power. The attempted reservation of a j^ower in the settle-
ment was clearly invalid, but it was held that he had under the
will power to jointure a second wife, although he had exercised
his power on his first marriage.
In Manon v. Manon (5 I. R. Eq. 288), lands were devised to
trustees in trust for A. for life, and in case he should think of
marrying, the trustees were empowered and directed to settle
and secure the lands as a jointure on his wife and to their issue,
share and share alike. A. married twice, but the power was not
exercised. lie died leaving issue of the first marriage and his
P0WEK8 OF JOINTURING. 519
widow, but no issue of the second mairiage. It was contended
that a settlement ought to bo prepared as if upon the occasion
of the first marriage, where, after providing a jointure for the
wife, the property would be limited to the children of the first
marriage, and there would be no means of providing a jointure
for a futm-e wife. But the Vice-Chancellor thought that if the
husband were the donee of the power, he could exercise it on his
second marriage, and that it made no difference that there was a
direction to the trustees to execute a settlement for the same
purpose ; (and see Bcvan v. Bevaii, 13 L. H. Ir, ;>3). Allanson v.
CUtlieroic (1 Yes. sen. 24), is a peculiar case, in which the object
of the power was to make a strict settlement rather than a
jointure (Sug. Pow. 701).
4. The riglit to exercise the power is usually made contingent Power usually
i/-i^<\i exerei.scable
upon possession. It has been before stated (p. 144), that a during pos-
power to be exercised upon a contingency may be well exercised
before the event happens : but (p. 147) that a power which is
not to arise until a future event happens cannot be exercised
before that event, for until then it has no existence : and if there
is no power at all, there can be no execution of it, defective or
otherwise. It is perhaps difficult to reconcile the decisions as to
jointures with these rules, unless it can be said that in all cases
such a power is presently given. Lord Eedesdale, in S/iaitnon
V. Brachtrect (1 S. & L. G3), says that in cases without number,
upon joirituring powers particularly, it has been determined that
a covenant is a suflicient declaration of an intent to execute, even
when made he/ore the power arose, as where a power is limited to
be exercised by tenant for life in possession, and he covenants
that when he comes into possession he will execute : in all these
cases Couiis of equity have relieved.
In Alforcl v. Alford (cited 2 P. W. 230; 1 Str. G04), A.
settled lands upon himself for life, remainder to his wife for life,
remainder to his first and other sons in tail, remainder to B. for
life, remainder over ; with power to B., after the dvatli of A. and
his wife, to jointm'e a wife. B. on the occasion of his marriage
in the lifetime of A., covenanted to execute his power when in
possession. A. and his wife died witliout issue, and B. came
520 A CONCISE TREATISE ON POWERS.
into possession, but never settled the estate : it was decreed that
the power was well executed.
In Jackson v. Jackson (4 Bro. C. C. 462), a settlement con-
tained limitations of successive life estates to father and son,
with remainders over, and authorized the father and son, u-hen
f/ic// sliouIiJ respective J y he in actual possession, to make jointures.
The father and son entered into a general covenant (without
reciting or referring to the power) that the son should within
twelve months make a jointm-e on a then intended wife. The
father died within the twelve months : the son entered and died
without making any settlement. Tlie Master of the Rolls held
that the power w-as in the contemplation of the parties at the
time of making the articles : that the settled estate was the only
estate on which the covenant could attach, and it did attach :
and that the persons entitled had a right to call for an execution
of the covenant.
Incapacity of And the same principle which gives effect to a covenant as
whenln^pos- ^^ execution, although the covenantor when he comes into
session makes possession forgcts or rcf uses to fulfil his covenant, gives effect
no diiierence. •"■ ^ ^ . ,
to the covenant against a subsequent want of capacity : in both
cases effect is given to the instrument without reference to the
subsequent want of consent or capacity on the part of the donee
of the power. In A^eck v. Afftcck (3 Sm. & G. 394), A., who
was entitled to real estate in remainder expectant on the death
of B., and was empowered when he should be in possession to
limit a jointure, covenanted on his marriage in B.'s lifetime
that if he came into possession he would exercise the power. A.
became of unsound mind before he came into possession, and con-
tinued so down to his death, which happened after the death of
B. It was held that the Coiu-t was bound to aid the cove-
nantee and enforce the charge against the remainderman.
It is of course clear that, if the donee of the power does not
live to come into possession, the contingency on which the power
was dependent will not have happened, and equity can give no
assistance : and the power cannot be accelerated by collusion
between the donee and the owner of the previous life estate
{TruellY. Tysson, 21 B. 441).
POWERS OF JOINTURING. '^21
If the covenantor after coming into possession refuse to carry Specific per-
. formance of
out his covenant, a decree for specific performance may be covenant to
obtained to compel liim to execute a deed of appointment in ^^'" ^^^'
accordance with his covenant ; and if he refuse to execute such
deed, the Court will declare him a trustee witliin the Trustee
Acts of the estate subject to the power, to the extent necessary
to raise the annuity, and will appoint a person to execute tlic
deed of appointment in his place {WcUoiley v. Wellcsley, 4 D.
M. & a. 037).
If a man covenants that the iointui'e is of given value, his 9°^'*^°^"* *^*
'' ^ ° jointure i8 of
estate must make good any deficiency {Prohcrt v. Jlorgan, 1 given value.
Atk. 440), unless it be clear that the covenantor intended
merely to covenant to make a jointure in accordance with the
power, and covenanted by mistake to appoint more than the
power authorized {Lady Londonderry v. Wayne, Ambl. 427) ; but
this can only be where it is clear that a mistake has been made
by all j)((rfie.s (Sug. Pow. 707).
A recital in a deed may amount to a covenant, if it be plain Recital, when
'^ _ .a covenant.
from the whole deed that it was so intended ; but the Court is
cautious in spelling a covenant out of a recital ; because it is not
the part of a deed in which covenants are usually expressed {Lay
V. Mottram, 19 C. B. N. S. 479).
In Borrowes v. Borroucs (6 I. R. Eq. 368), a settlement, to
which A, (the father), B. his daughter, and her intended hus-
band were parties, recited that A. agreed to give and appoint to
his child B. 3,000/., of which 1,000/. was to be paid in cash, and
the remainder to be charged on the estates of A., and that the
husband had agreed to make certain charges in favour of B.
and their children ; and that A. had under a power charged his
estates with 3,000/., and that it had been agreed that A. should
pay 1,000/., part of B.'s portion, to the husband at once, and
that A. should appoint 2,000/. (the residue of the 3,000/.) as a
charge on his estates, the sums to bo in full for B.'s portion.
This appointment was afterwards made ; and B. and her
husband released A. and his heirs from all claims in respect of
other provisions for children. This recital was held not to
amount to a personal covenant by A., although it should prove
taxes.
522 A CONCISE TREATISE ON POWERS.
that the 2,000/. was not well charged, by reason of the execu-
tion of the power being invalid. And generally as to recitals
operating as covenants, see Holies v. Carr (3 Sw. 638) ; Duchett
V, Gordon (11 Ir. Ch. E. 181) ; Moni/pcnni/ v. Moiii/pom)/ (9 H.
L. C. 114) ; T/iompson v. Thompson (6 I. E. Eq. 113, 322) ;
WcMon V. Brcuhhaw (7 ih. 1G8) ; Daivcs v. Tmhcell (18 Ch. D.
354) ; Elphinstone on Deeds, 415.
And if the husband appoints the jointure in consideration of
his wife's fortune, no claim can be maintained by him or in his
right, while the terms are not fulfilled on his part {Mitford v.
Mifford, 9 Yes. 87).
Appointments 5. Formerly it was common to give power to appoint lands
free*from^^^ not exceeding a certain yearly value by way of jointure, but
the power in modern practice is in general to appoint a rent-
charge or rentcharges not exceeding a certain amount (David-
son, iii. 470). This distinction must be borne in mind in
considering from what taxes jointures may be appointed free.
In Ilcrvey v. Hcrvey (1 Atk. 561), it was considered clear that
a power to A. to make a jointure of such of the settled lands
as he thought proper, not exceeding 600/. per annum, would
not authorize the settlement of an annuity clear of taxes ; and it
was so held in Lady Londonderry v. Wayne (Ambl. 424).
But it seems the better opinion that, if a yearly amount by
way of rentcharge is authorized, an aj^pointment may be made
free from participation in the burdens of the land (Davidson,
iii. 472 n.).
"Clear Where the power was to appoint any part of the premises,
not exceeding a certain clear yearly value, to a wife for her
jointm'e, Lord Hardwicke said that the word " clear " was to
be construed as it would be in an agreement between buyer
and seller ; that is, clear of all outgoings, incumbrances, and
extraordinary charges, not according to the custom of the
country, as tithes, poor-rates, cliurch-rates, &c., which are
natural charges on the tenant. If in the country where the
estates lie it had been the custom for the landlord to pay those
rates, the jointure ought to be subject to them, for they would
in such case only be ordinary charges {Lord Tyrconnel v. Dahe of
value."
POWERS OF JOINTURING. 523
Aiioa-stcr, Ambl. 240). Such a jointure will be clear of land tax
(1 Bro. C. C. 4, n.).
In Trevor v. Trevor (13 Sim. 108; 1 II. L. C. 239), an estate
was l)y will directed to be settled in strict settlement, and in
the settlement was to be contained a power for the tenant for
life to jointure " to the extent of one fifth part of the then
ordinary annual rental of the estates." It was held that the
settlement ought to authorize the tenant for life to charge the
estates with a clear yearly rentcharge, not exceeding one fiftli of
the yearly rent of the estates payable at the time of creating the
charge. The House of Lords affirmed the decree without
entering into this point at all. See this case observed on by
Lord St. Leonards (Prop. H. of L. 489), where he concludes that
the settlement only authorized the appointment of a jointure
equal to one fifth of the rent received by the landlord, after the
deduction of land tax and the like, but that the jointure, when so
fixed, remained payable at that sum for the whole life, clear of
deduction, obviously because the proper deduction was made
once for all when the actual amount was fixed.
The usual form in instruments at the present time is to "Without
authorize a rentcharge of the amount specified to be chai'ged tion."
" without any deduction."
These words \A\\ exonerate the jointress from succession duty Succession
and legacy duty, the effect of the words being to make an " ^'
additional grant ; or rather, it is au integral part of the grant
of the rentcharge, conveying to the jointress the right of ha\'ing
any such deduction raised, and imposing on the trustees the
obligation of having the rentcharge paid without any such
deduction, that deduction being left to be satisfied out of the
other rents of the estates which they woidd have a right to raise,
plus the amount necessary to satisfy the rentcharge {Floi/er v.
Baithe.^, 3 D. J. & S. 30G ; Pearefh v. Marriott, 22 Ch. D. 182 ;
Re liobiiis, M>/son v. liobim, 58 L. T. 382).
The cases as to income tax are somewhat conflicting, and are Income tax.
explained by Kay, J., in Gleadow v. Leetham (22 Ch. D. 269),
as falling under two heads: (1) wlion tlio annuity or jointure is
given first, and is followed by a direction that it shall be free
524
A CONCISE TREATISE ON POWERS.
Cost of
exchanore.
Period for
ascertaining
the burdens
Jointure must
arise de die in
diem.
from all deductions in respect of any taxes; (2) where the
annuity or jointure is directed to be paid without any deduction,
or free from legacy duty and other deductions. In the first class
of cases (of which Fcding v. Taijlor^ 3 B. & S. 217; Lord Lovat
V. Duchess of Leeds, 2 Dr. & S. 62 ; 31 L. J. Ch. 503 ; and Re
Bomicrmau, 21 Ch. D. 105, are examples) the word "deductions"
was construed by the word " taxes " which was associated with
it, and was held to include income tax. In the second class of
cases (of which Lethhridge v. Thurlow, 15 Beav. 334 ; Ahadam
V. Ahad((m, 33 Beav. 475 ; and Sad/cr v. RicJ>-ard'<, 4 K. & J.
302, are examples) the word deduction had its strict and usual
meaning given to it : and, as Lord Hatherley said in Turner v.
Jliiniiieiix (1 J. & H. 334), " this Court always holds that income
tax is not a deduction."
Where a settlement authorized the grant of a rentcharge " to
be tax free and without any deduction, and to be issuing out of
and chargeable on lands in Ireland, so that such rentcharge do
not exceed the yearly sum of 3,000/. of lawful money of Great
Britain," it was held that the rentcharge was jjayable in Ireland
in English currency, and that the appointee was not entitled to
have the sum transmitted to England free of all charge of
conveyance and exchange {Ldnsdnn-ne v. Lausdoicne, 2 Bligh, 60).
6. Where lands of a given value are to be settled, the taxes
from which the jointure is to be free are to be ascertained at
the time of the execution of the power {Lord Ti/rconnel v. DuJie of
Aticasfer, Ambl. 239 ; Trevor v. Trevor, 13 Sim. 136) ; although
Lord Henley held that the death of the husband was the proper
period {Lady Londonderry v. Wayne, Ambl. 427 ; Sug. Pow.
705; Prop. H. of L. 489).
7. A power to charge a jointure (which is an estate in lands
limited to a wife expectant upon a life estate of her husband)
cannot bo properly executed by an appointment of a sum to be
paid immediately on the appointor's death ; the jointure arises
out of the rents and profits of the land as they arise de die
in diem.
But if the donee of the power in exercising it charge a
jointure of less amount than that authorized, but direct an
POWERS OF JOINTURING.
immediate payment of a certain amount, it seems that such
immediate payment, if, with the amount of tlio jointure
properly appointed, it do not exceed the limits authorized, may
be taken as an appointment of a jointure of a larger sum {i.e., of
the amount at once payable and of the jointure) for the first
year, and of a smaller sum {i.e., of the jointure only) for the
future. Of course, if the amount directed to be immediately
paid, when added to the jointure proper, exceed the amount
authorized to be charged, the appointment will fail pro ianto.
The question as to what would bo the effect of the death of
the jointress before the fii'st regular day of i)aymcnt, has never
been decided ; but by virtue of the Apportionment Acts (4 & 5
Wm. 4, c. 22, and n^ & 34 Vict. c. 35) the jointress would be
entitled to a proportionate part of the jointure calculated at the
larger amount ; and if such larger amount should be less than
the amount authorized to be charged, the estate of the jointress
would be entitled not merely to an apportioned part of such
larger amount, but to an amount equivalent to an apportioned
part of the whole amount authorized to be charged, on the
ground that the appointor meant her to have so much down,
and that his intention ought to be carried out as far as is
practicable.
In Fiorcll v. Furccll (2 Dru. & War. 217), the power was
conferred by will in these words : " I hereby empower my son
"W. to charge said land with a jointure by deed or will for any
wdfe he may marry." The son purported to exercise the power,
and directed the first payment of the rentcharge to be made on
the day of his own decease. The Lord Chancellor said : " The
party had a general power to jointure, and, within the value of
the property, there was no limit to the amount. It is not
perhaps a natural construction of this power to say, that the
joiutm-e might be made payable instanter upon the death of the
donee ; but this result might have been indirectly effected, for
the appointee, the jointress, having lived beyond the first
regular day of payment, there was nothing to have prevented
the party from appointing that, on the first regular day of
520
526
A CONCISE TREATISE ON POWEKS.
Jointure in
proportion to
■wife's for-
tune.
Dower.
pa^Tuent, she should receive double the sum to which she was
to be entitled on every subsequent day. I may consider the case
just as if he had directed that an amoimt equal to both the first
and second payments should be payable on the first regular day
of pajTuent after his decease. If, indeed, the jointress had died
before the first day, a question might have arisen, but as the
case now comes before me, I do not see why I cannot, in favour
of the intention, do that in the manner I have pointed out,
which he clearly had the power to accomplish."
8. It was formerly not unusual to make the power to jointure
in proportion to the amount of fortune brought into the family
by the lady. If such be the case, the transaction must be fair :
a nominal portion is not sufiicient : nor if the husband or his
friends advance money to make up the sum, and it is afterwards
repaid : nor if the wife's portion is settled to her separate use.
The object of making such powers is, that the person may marry
providently, and not burden the estate with a jointure for a
woman who brings nothing. It is not necessary that the portion
should be paid to and actually spent by the husband ; where
the portion is settled in a proper and reasonable manner for the
benefit of the family in a fair way of contracting, that is not
within the reason of the cases on fraud and collusion {Lord
Tyreonnel N. Duke of Ancasfer, Ambl. 238).
A power to jointure to such amount as A. shall deem
expedient in proportion to the portion he may receive with his
wife, authorizes a jointure, although the wife brings no portion
{Re Mo/fon, 2 Ir. 0. L. E. 634). If the power expresses no
limit, it is difficult to say that the Court can assign any limit ;
and even if the words be " reasonable amount," the reason-
ableness is left to the appointor (see Sug. Pow. 437, and the
comments there on Lord TankerviUe v. Coke, Mos, 146 ; and
Edgoworth v. Edrjeworth, Beat. 328).
9. An appointment under a power to appoint a provision for
or in the name of jointure will not bar dower, unless the
appointor so declare ; and it seems clear that the appointor may
lawfully make such a declaration (Sug. Pow. 707 ; and as to
POWERS OF JOINTURING. 527
dower, see now 3 & 4 "Wm. 4, c. 105). It is well settled tliat
adultery does not cause a husband to forfeit his estate by
curtesy, nor the wife to forfeit her jointure {Sidney v. Sidiiei/,
3 P. W. 2G9 ; He IVallccr, LI. & (}. at p. 32G ; Fcaron v. Lord
Ai/lc.sfor(/, 14 Q. B. D. 792). But the power of jointui'ing may
be 60 worded as to render it necessary that the woman claiming
it should answer the description of wife at the husband's death
(cf. Biillinorc v. Wi/nto', 22 Ch. D. 619; Re Morrison, 40
Ch. D. 30).
528
A CONCISE TREATISE ON TOWERS.
CHAPTER XV.
POWERS OF CHARGING.
PAGE
1. Are not usual poivers 528
2. Indefinite powers of charging
lands, and of charging rents
and profits 530
3. Portions raiseahle when vested. , 532
4. Is whole sum provided for 2^or-
tions raisenble as soon as any
part becomes payable ? 53-i
PAGE
5. A poiver to charge authorizes
charge of interest 535
6. Tenant for life must keep down
interest , 537
7. Towers to charge created by
reference 541
8. lapse of charges 542
Not usual
power.
Covenant to
settle on issue
of marriage.
1. It has been held tliat powers of this natui'e are not usual
powers within the meaning of a direction to make a settlement
"with all usual powers, including a power to jointure" {Higgin-
son V. Barnehij, 2 S. & S. 516), "because the effect of such a
power would be to diminish the estate, which was expressly
limited in strict settlement, and because there was no certain
rule as to the quantum of such portions by which the Court
could be guided." The Yice-Chancellor considered that the
words referred to the usual and necessary powers of manage-
ment. It is to be observed that the express mention of a power
to jointure to some extent negatived the intention of inserting
any other similar power; (cf. Pearse v. Baron, Jac. 158). But
it may be doubted whether any general rule can be laid down ;
(see Sachil/e-Wc^fx. Lord Jlolmmlak, L. E. 4 H. L. 543, 577).
The question necessarily arises on executory instruments, and
turns on the construction of the particular document. But a
mere covenant in marriage articles to settle an estate, after pay-
ment of an annuity to the intended wife, upon the covenantor's
issue by such wife, excludes the creation by the covenantor of
charges in favour of younger children. Such a covenant can
POVVEKS OF CHARGING. 529
only be performed in one of two ways, either Ly limiting the
estate to the first and other sons of the settlor successively,
according to seniority in tail, with remainder to the daughters
as tenants in common in tail, with cross-remainders between
them ; or by limiting the estate to all the cliildren, male and
female alike, as tenants in common in tail, witli cross-remainders
between them. The former is the established form in the
absence of express provision to the contrary. But neither of
such limitations would support a charge in favour of younger
children, it being well settled that when there is a contract
merely to settle upon the eldest son as heir in tail, there is no
power in the Court to award portions to younger children, unless
there is in the articles some provision for that purpose, or some
reference to some other document which can enable the Com-t to
ascertain what the amount of such provision ought to be (Gricr
V. Grier, L. E. 5 H. L. 688, 708 ; and see Bedford v. Aben'oni,
1 M. & C. 312; Sar(i(jc v. Carro//, 1 B. & B. 265, 276). And
as children or issue in a marriage settlement mean jyriind facie
the children of that particular marriage {Bq/f'ontc v. Goodman,
2 Yern. 362), no power of charging in favour of the children of On issue of
_ ~ . • 7-r second
a second marriage could properly be inserted. Thus, m Hart marriage.
V. Middlehurd (3 Atk. 371), ante-nuptial articles contained a
covenant to convey lands to trustees in trust for the settlor for
life, with remainder to the -^ife for life, with remainder " to the
issue of this match, in such sort, manner, and form, and subject
to such charges for younger children," as the settlor should
appoint : and it w^as held that the only cliild of the marriage (a
daughter) was entitled to have a settlement of the lands made on
her as tenant in tail to the exclusion of the son of the settlor by
a second marriage : and the argument that the settlor might
limit the estate to the son of the second marriage, leaving a
charge for the benefit of the daughter of the first marriage, was
rejected ; and see Re Woodleys, 29 L. R. Ir. 304.
In Maiin v. Maiin (o Eq. 150), an executory deed provided Power of ad-
^ , \. 1 1 -n vanccment.
for the settlement of a sum of money on the wite and children
of the settlor, " with all the powers for changing the security,
and for maintenance, and other powers and trusts whicli are
F. M M
530
A CONCISE TREATISE ON POWERS.
Vesting of
portions.
Indefinite
charge on
rents and
profits.
Authorizes
sale.
usually inserted iu a money settlement of the like nature ; "
and it was held by V.-C. Wood that a power of advancement
was proper to be inserted (see p. 154).
In Lord Holmcsdalc v. West (12 Eq. 280), it was held that in
the settlement, to be made in accordance with the directions
given by the House of Lords in SackviUe- West v. Lord Holmes-
dale (L. E. 4 H. L. 543), no provision ought to be inserted
postponing the vesting of the portions until the death of the
person creating them.
2. A power of charging land will authorize a charge upon
any portion thereof, and a power of charging indefinitely may
be executed by a sale so as to bind the whole inheritance {Long
V. Long, 5 Yes. 445). Equity will at any rate decree a sale to
raise the charge (Sug. Pow. 429). And an unlimited indefinite
charge upon rents and profits is a charge upon the eorpus, just
as an unlimited indefinite gift of rents and profits is a gift of
the corjms {FhilUps v. Gutteridge, 3 D. J. & S. 332 ; and see
Pearson v. HelliiccU, 18 Eq. 411).
Such a charge authorizes a sale or mortgage for the purpose
of raising the portions, and also the incidental costs [Armstrong
V. Armstrong, 18 Eq. 541 ; Michcll v. Michell, 4 Beav. 549).
Such costs are payable by the estate, and not out of the portions
{ihid.) ; but such costs do not include the costs occasioned by deal-
ings with the charges {SteicartY. Margin's of Donegal, 2 Jo. & L.
636). In general where money is directed to be raised by rents
and profits, unless there are other words to restrain the meaning,
and to confine them to the receipt of the rents and profits when
they accrue, the Court, in order to obtain the end which the
party intended by raising the money, has, by a liberal construc-
tion of these words, taken them to amount to a direction to sell
{Green v. Belcher, 1 Atk. 505 ; Metcalfe v. Hutchinson, 1 Ch. D.
591).
The expression "rents and profits" will not confine the power
to the mere annual rents, but the trustees are to raise it out of
the estate itself by sale or mortgage {Bootle v. Blundell, 1 Mer.
193, 233). In this case Lord Eldon says : "I have understood
it to be a settled rule that when a term is created for the purpose
POWERS OF CHARGING. 531
of raising money out of the rents and profits, if the trusts of the
will require tliat a gross sum should he raised, the expression
* rents and profits ' will not confine the power to the mere
annual rents, hut the trustees are to raise it out of the estate
itself lay sale or mortgage." Lord Thurlow says the same in
S/ireushio'// V. S/ireicsbiiri/ (1 Yes. jun. 234) ; and Sir Thomas
Plumer in Al/an v. Backhouse (2 V. & B. 75), where all the
earlier eases are collected in the judgment.
"Wliere there is an alternative direction, the most reasonable
construction is that annual charges should be discharged out of
annual rents and profits, and that gross sums should be raised
by sale or mortgage (2 Jarm. 4th ed. Glu ; 3Dav. Conv. 3rd ed.
449).
"Where charges are to be raised by sale or mortgage, the
Court, in determining by which mode the money shall be raised,
will have regard to the wishes of those immediately interested
rather than of those whose interests are more remote {Metcalfe
V. ITufchimon, 1 Ch. D. 591).
If the person who creates the charge express an intention that
it shall affect the rents and profits as they arise only, effect must
be given to such intention {Foster v. S»iit/t, 1 Ph. G29 ; JEarle v.
Belli ngham, 24 B. 445 ; Wilson v. Eallileij, 1 E. & M. 590 ; Re
Green, 40 Ch. D. 610).
And there may be cases where the corpus is not charged, but
there is a continuing charge on the rents and profits [Booth v.
Coulton, 5 Ch. G84; and see Tai/Ior v. Taylor, 17 Eq. 324;
Michell V. Wilton, 20 Eq. 269 ; Hayes and Jarman, Concise
Free, of Wills, 9th ed. 169).
It is, of course, open to a settlor or testator to direct the mode
in which portions shall be raised ; and where a particular method
of raising is directed, it implies that they shall not be raised in
any other way (7ry v. Gilbert, 2 P. W. 13, 18). Thus, in
Bennett v. Wi/ndhani (23 Beav. 521), there was a trust out of
the rents, issues, and profits, or by such other waj'S and means,
except a sale or sales, to raise money to pay off charges : and it
was held that the money could not be raised either by sale or
mortgage, or by lease on fines, but that the other ways and
M M 2
532
A CONCISE TREATISE ON POWERS.
When por-
tions to be
raised.
means referred to meant by timber or mines. Where the
ordinary profits of a term are not sufficient to raise a portion,
timber may be felled, or a mine worked {Offleij v. Offleij, Free.
Ch. 26). And as to the duties and powers of trustees for raising
charges by sale of timber, see Marl-ev v. Kekcicich (8 Ha. 291) ;
Kckemchx. Marker (3 Mac. & Gr. 311) ; and Re Marquk of Bute
(27 Ch. D. 196).
3. The question as to the time when portions become payable
and are to be raised depends " on the particular penning of the
trust " [Hehhlethwaife v. Carttcright, Ca. t. Talbot, 32) ; and it is
therefore difficult to state any general rule. It is, however,
settled that : —
If the interests are vested, or the contingencies
have liapj^enecl on which the jDortions are to be
paid, and the portions are required, they must be
raised, although the only means of raising them
may be by sale or mortgage of a reversionary
iQvm. [Massy Y. Lloyd, 10 H. L. C. 248; Codring-
ton V. Lord Foley, 6 Ves. 364, 379).
Portions
secured on
reversionary
term.
" The intention is to govern, and when the period has arrived
at which portions are clearly directed to be paid, you must raise
them, although the act of doing so involves a considerable
sacrifice and waste of property" (10 H. L. C. 263; and see
Benty v. Wrey, 21 Ch. D. 332, 359).
So, too, if there be a limitation to a parent for life, with a
term to raise portions for children at twenty-one or marriage, to
take effect according to his appointment, prima facie the inten-
tion is that the donee should bo able to appoint that the portion
should be immediately raised : and this intention will not be
controlled by the fact that the term for securing the portions is
reversionary, nor that the settlement contains a maintenance
clause {Smyth v. Foley, 3 Y. & C. Ex. 142; Michelly. Michell,
4 B. 549).
In Keily v. Keily (4 Dr. & War. 38), on the marriage of B.,
POWERS OF CHARGINC;. 'J
lands of A., his father, were vested in trustees in trust for A.
during B.'s life, and subject tliereto to secure a jointm-e and to
raise 4,000/. for younger cliildren, to be divided according to
B.'s appointment, and in default equally, and to be payable at
twenty-one or marriage, " if such respective times of payment
should happen after the death of B., but if before, then within
three calendar months after the death of B., and not before or
sooner, unless with the consent of A. if living, and if dead, of
B." B., after A.'s death, appointed in favour of a younger
child who had attained twenty-one, and directed such portion to
be raised and paid at once. This appointment was held to be
authorized by the settlement.
" The ride upon the whole depends upon this : whether it was
the intention of the parties to the instrument, attending to the
whole of it, that the portion should or should not be raised in
tliis manner : taking it prima facie to be the intention upon the
general ride, if tliere is nothing more than a limitation to the
parent for life, with a term to raise portions at the age of
twenty-one or marriage, if there is nothing more and the
interests are vested, and the contingencies have happened on
which the portions are to be paid, the interest is to be paid, and
the portions must be raised in the only manner in which they
can be raised ; that is by mortgage or sale of the reversionary
term" {Codrington v. LonlFolvij, 6 Yes. 364, 380 ; KaUyi. Carter,
2 Atk. 3/36 ; Wynter v. Bold, 1 S. & S. 507 ; Ohcdo) v. Okedeu,
1 Atk. 550 ; Whaleij v. Morgan, 2 Dr. & Wal. 330 ; EvcJgn v.
Eveign, 2 P. W. 659).
And portions do not become payahle although actually vested Pow-cr of
and due under a trust to raise portions, so long as there is in ^p^dg'^
existence a general power of revoking the whole settlement portions.
{RcrcHhy v. Neidand, 2 P. W. 93). "With respect to the power
of revocation, it is still a subsisting power, and consequently
suspends and prevents the portions from being as yet payable,
because the father, by consent of the trustees, may yet revoke :
he may revoke at any time before the portion is raised and
paid." The decision was affirmed in D. P., 6 B. P. C. 75, and
is cited with approval by Lord St. Leonards (Pow. 454).
634 A CONCISE TEEATISE ON POWERS.
Is the -whole 4. There has been some difference of opinion on the question
tions raiseable whether the whole sum raiseable for the portions of younger
partbecomey childi'en shoukl he raised as soon as any of the portionists have
payable? become entitled to payment, although others have not yet
acquired vested interests.
In GiUibrand v. GooJd (5 Sim. 149), Shadwell, V.-C, held
that the whole sum ought to be raised immediately, and he dis-
posed of the objection, that the younger children whose shares
were not yet payable might lose by a fall of consols, by saying
that an investment in consols was equivalent to payment. Sed
qu.; for a creditor whose claim is not payable cannot be bound
by any investment in consols that his debtor may choose to
make in order to satisfy the debt when due.
In Leech v. Leech (2 Dr. &.War. 568), the trust was to raise
4,000/. for the j)ortions of younger children, to be paid at
twenty-one or mamage. Sugden, L. C, held that as some of
the children had attained twenty-one, the whole sum was to be
raised at once, and that the shares of infants were to be invested
until they attained twenty-one, and the dividends thereon
applied for their maintenance in lieu of the maintenance to
which they were entitled under the trusts of the term.
In Tearcth v. Greenwood (28 W. R. 417), lands were limited
to trustees for a term of years in trust to raise portions for
younger children, to be vested at twenty-one or marriage, with a
proviso that no sale or disposition should be made until some
one of the portions should be actually payable. It was held
that the whole sum was raiseable when the eldest of the younger
children attained twenty-one. But here the proviso rendered it
plain that this was the intention ; and the Court, moreover,
provided for possible depreciation in the value of the consols to
be purchased for the minors by carrying over a sum not merely
sufficient to pay them, but also to allow a margin for depre-
ciation. This seems unobjectionable; and the practical con-
venience to the estate of the two former decisions is obvious :
but it is by no means clear that the strict rights of the infants
were not unduly postponed to the interest of the owner of the
estate charged. And the contrary has been held in 7/r///.s- v.
rOWEKS OF CHARGING. O'^O
Bailey (cited 2 Dr. & War. 576), by Sir ■William Grant ; and
in 8licpp(t)'i( V. Wil-sun (4 Ila. 392), Sir J. Wiy-ram at first
refused to allow the owner of the estate charged to have the
portions raised before any of them became payable for the
pur^ioso of clearing the estate ; and subsequently, when two of
the younger children became entitled to vested interests, and
applied to have the whole sum raised, the Vice-Chan cellor
refused to direct a larger sum to be raised than was required
to satisfy the portions which were actually due. And in Edijc-
Korfh V. Eilyiuorth (Beat. 328), it was said that a provision
for maintenance and education during minority negatived the
raising of portions during infancy, because the interest of the
portions, if raised, would fulfil these purposes and render the
express provision unnecessary; (see, too, Wjnter v. Bold, 1 S. & S.
507).
A portionist entitled to a portion of an entire charge, and Apportion-
also entitled to a portion of the estate subject to the charge, is charges for
not entitled as a matter of right to have the charge aj^portioned P*^^^*^'"^*-
to the various shares of the estate in order to clear his share
{Of tea //-Care v. Oturi//, 2 Eq. 725) ; but the Yice-Chancellor in
that case gave the plaintiff an option of bringing a scheme into
chambers for advancing the money due in respect of his share
of the estate and so releasing it.
5. A power to charge an estate with a gross sum Power to
1 . -, . . , . , _ charge autho-
implies a power to charge it with interest [Bo?/cot rizes charge
V. Cotton, 1 Atk. 555; Eoe v. Pogson, 2 Madd. and interest.
457 ; Leivis v. FrcJce, 2 Ves. jim. 507).
In Simp.soi V. O* Sullivan (3 Dr. & War. 446), the power was
to raise "by deed, mortgage, or any other writing;" in this
case there could bo no doubt, for a mortgage necessarily su2:>poses
the security of a principal sum with interest. And if the party
entitled to charge, or to give interest from the time the fund is
to be productive, fixes the rate, the Court cannot control his
discretion, either by diminishing it, if he gives more than 4/.
536 A CONCISE TREATISE ON POWERS.
per cent., or by increasing it if lie give less than legal interest
{Lcitis V. Frelic, 2 Yes. jun. 507). This, however, was qualified
by the proviso that the rate of interest fixed by the appointor
did not exceed legal interest. And Lord St. Leonards on this
states (Pow. G97), that, "if no rate is fixed, the Court mil give
4/. per cent., and the old rule as to the rate of interest would
probably still prevail, notwithstanding that the Statutes of
Usury have been repealed." It is, however, open to question
whether an appointor, who has not a mere power of apportioning
a charge, but the right to direct whether it shall be raised at all
or not, can appoint more than 4:1. per cent, interest. If he can
exceed 4/. per cent., there is no reason why he should not appoint
10/. or 100/. per cent. ; and the judgment of Baggallay, L. J., in
Balfour v. Cooper (23 Ch. D. 472), would seem to give some
support to this. The decision in that case, however, was merely
that the appointor had no right to fix the rate of interest, when
his power was limited to an apportionment of the charge, but that
in such a case the rate was that allowed by the Court. This
rate is in England 4/. per cent., and in Ireland 5/. per cent, {ibid.;
and see Young v. Lord Waierpark, 13 Sim. 199 ; Leslie v. Leslie,
LI. & G. 1 ; Purceil v. Purcel/, 2 Dr. & War. 217 ; Simpson v.
0' Sullivan, 3 Dr. & War. 446).
Interest to be The interest ought not to be directed to accumulate, but
pai annua y, gi^^^-j^^j -^^ p^-^ annually ; for when it is given at the rate of
5/. per cent, the natural construction is, that it should be paid
annually and become due every day, for it is given as a recom-
pense in the meantime, till the principal is due {Boyeot v.
Cotton, 1 Atk. 555).
And the person who has sustained a child, in whose favour a
charge has been made, will be entitled to the interest, for it is
given for maintenance {ibid. 556).
If the terms of the power do not admit of the raising of the
principal in the lifetime of the tenant of the particular estate,
interest cannot be due until after his death ; for interest is only
in lieu of non-payment of principal [CliureJiman v. Harvey,
Ambl. 342 ; Eeynohh v. Meyricl;, 1 Ed. 48 ; Mamy v. Lloyd, 10
H. L. C. 248; Lyddon v. Lyddon, 14 Ves. 558).
POWERS OF CHARGING. 537
And it seems that if the charge is to ho raised out of annual Cliarge raise-
roflts, it will not cai
P. ^Y. GGG).
rents and profits, it will not carry interest {Evehjit v. Ecchjn, 2 annual rents.
6. Tlie tenant for life is bound to keep down tlie Tenant for
. - - life must keep
interest on charges upon the estate ; and that, too, down interest,
altliough he has also an absolute power of appoint-
ment {Whithrcad v. Smith, -3 D. M. & G. 741;
jMarshally. Crowt/ier, 2 Ch. D. 190).
If he fails to do so, and a receiver is appointed, he will have
to bear the costs of such receiver [Shore v. Shore, 28 L. J. Ch.
940; 4 Drew. 501).
But he is not bound to defray the arrears of interest which
have accrued during the lifetime of a preceding tenant for life ;
it is the duty of the reversioner, as much as of the tenant for
life in remainder, to see that the tenant for life in possession
pays the interest {Caulficld v. Maerjuirc, 2 J. & L. 160 ; Shar-
shaic Y. Gibbs, Kay, 333). If, therefore, a subsequent tenant
for life is compelled to pay arrears of interest upon a charge
affecting the inheritance which had accrued during a prior life
estate, he is entitled to repayment of that sum out of the inherit-
ance {Kiriran v. Kennedif, 4 I. R. Eq. 499). But where the
tenant for life overpaid interest upon a charge by mistake, the
Court would not allow him to be repaid out of the inheritance,
although the overpayment was made by a receiver appointed by
the Court (ibid.). But every tenant for life is liable for his own
time, and, in order to liquidate any arrears that may accrue
during his own time, he must furnish all the rents, if necessary,
during the whole of his life (Kay, 333).
In Iloiv/in V. S/zeppard (6 I. R. Eq. 38, 253), a remainderman,
on coming into possession, paid out of his own pocket interest
which had accrued during the preceding life estate on charges
aficeting the inheritance. His executor was held entitled, as
against the executor of the tenant for life, not only to be
recouped out of, but to the whole of the accumulations of, a
538 A CONCISE TREATISE ON POWERS.
fund in Court, the produce of rents of tlio life estate brought
into Covu't in 1815 by a receiver appointed in an incumbrancer's
suit against the tenant for life. And it was fiu'ther held that
the Statute of Limitations had no application to the fund which
had remained in Court from 1815 to 1870, and that the remain-
dermen had a specific lien on all that remained of or represented
the estate for life. " I take it to be clear that the obligation of
the tenant for life is an equity arising under the settlement,
independently of contract, and that it attaches as between the
parties so as to enable this Court at any time while the life
estate has not been received, either as to past or future rents, to
attach these rents or the produce of the life interest ; and to
apply it precisely in the manner in which the tenant for life
ought to have applied it, in payment of incumbrances which he
was bound to pay " {jwr Lord St. Leonards in Coote v. O'Reilhj,
1 Jo. & L. 455, 461). In that case the tenant for life had
become bankrupt, and the question arose with reference to a sum
representing the accumulation of dividends on a fund in Court.
And in Waring v. Covcnti'i/ (2 M. & K. 406), also, the tenant for
life had become bankrupt. But Lord St. Leonards' expression
appears to be general. However, in Scholefield v. Lochcood (4
D. J. & S. 22, at p. 31), Lord "Westbury says, "A tenant for life
has all his lifetime to pay off the arrears of the interest, and he
cannot be charged with neglect of duty ; neither does any right
arise to the remainderman until the death or insolvency of the
tenant for life." But it is submitted that this was not intended
to lay down any general proposition of law, but was directed to
the question then before the Court, namely, whether there was
any income in existence as a separate investment at the date of
the claimant's judgment, so as to put him in the position of a
specific mortgagee or assignee thereof ; and the Lord Chancellor
merely intended to say that if there had been any such investment,
the tenant for life would have made a good title thereto, notwith-
standing the existence of arrears of charges ; but that as regarded
all other income the claimant was in no better position than the
tenant for life. And this would accord with statements of the
law by other judges. Thus, in Makings v. 3Iakii/gs (1 D. F. &
POWEKS OF CHARGlNti. 5^9
J. 358), Campbell, L. C, says, " Where there is a charge upon
the inheritance, the remainderman may file a bill to compel the
tenant for life to keep down the interest as far as the rents and
profits of the estate will go." The observation was directed to
an argument by the remainderman that the owner of the charge
had been guilty of laches in not enforcing his charge ; and in
that case the tenant for life was living and not insolvent ; and
the speccli of Lord Cranworth in L()r(( Kcnniii(jtoii v. liouverie
(7 II. L. C. at p. 5S6) is to the same effect. "What the remain-
derman is interested in is, to take care that the interest is not
allowed to fall into arrear, for then whatever rents may have
been received by the tenant for life, however sufficient may
have been their amount, the remainderman may become liable
to satisfy the arrears. To prevent that injustice, he may in a
proj^er case obtain a receiver at the expense of the estate." And
Lord Eomilly in the same case (19 Beav. at p. 54), says, " If
the tenant for life had not kept down the interest, the remain-
derman might in his lifetime have compelled him so to do, or
might have obtained a receiver to take possession of, and to apply
the rents of the estate for that purpose." And, notwithstanding
a dictum to the contrary by Lord Eomilly (10 Beav. at p. 54),
whicli appears to have been misreported (6 Ir. Ch. R. 156), the
estate of a deceased tenant for life who has received the rents
and not kept down the interest on charges is liable, to the extent
of the rents received, to recoup the inheritance or the next
tenant for life {Baldwin v. Baldicin, 4 Ir. Ch. R. 501 ; 6 ibid.
156 ; Fu- Whi/te, 7 ibid. 61, n. ; Re Gore, 9 I. R. Eq. 83 ; Re
Fitzgemld, 1 I. R. Eq. 453) ; but the obligation on the tenant
for life exists only as between himself and the remainderman,
and is not a personal obligation which the inciunbrancer can
enforce against him {Re MoHci/, 8 Eq. 594).
A tenant for life, who pays off a charge, is in general entitled Tenant for
to be a creditor for the amount he has paid, although he has char"-e. °
taken no assignment of the charge {Jones v. 2Iot'(jan, 1 Bro. C.
C. 206 ; and see Re Pride, 1891, 2 Ch. 135). " I take it to be
clear law, resting on Jones v. Morgan {itbi supra), S/ireicsbari/ v.
540 A CONCISE TREATISE ON TOWERS.
S/ircirshuri/ (1 Yes. jun. 227), and Picdinrjion v. Eedingion (1 B.
& B. 131) — the principles of wliicli cases appear to be supported
by a long line of subsequent authorities — that a tenant for life,
■when he pays off charges affecting the inheritance, is under no
obligation to do anything, to say anj^thing, or to preserve evi-
dence of anything beyond the fact of the payment of the charge,
to entitle him to keep it alive and raise it for the benefit of his
personal estate " {per Chatterton, Y.-C, in Linchaij v. Lord
IFicJ.ioic, 7 I. R. Eq. at p. 204). And charges affecting the in-
heritance include succession dutj, if paid on the whole corpus
(Cuddon V. Cuddon, 4 Ch. D. 583) ; although a tenant for life
is of course bound to pay the duty on ]iis own succession, includ-
ing the costs of rendering the necessary accounts {Earl Coidcy
V. Wellesley, 1 Eq. G56).
Further, if a tenant for life with power of charging makes a
charge, his general personal estate will not be liable to exonerate
the land, and if he pays it off he becomes an incumbrancer on
the estate. Thus, if there be tenant for life wdth power of
charging, with remainder to trustees to preserve contingent
remainders, with other remainders over and the reversion to
himself ; if he makes a mortgage, and afterwards pays it off,
he is himself an incumbrancer on the estate, even without taking
an assignment {Re DUjhy, Jac. 235 ; Jcnkimon v. Harcomi,
Kay, 688).
Paying inte- But a tenant for life who pays interest in excess of the rents
of income. ^^d profits of the estate cannot make himself an incimibrancer
on the estate for this excess in his payments, if he has not given
to the remainderman any intimation of the insufficiency of the
rents and profits, and of his intention to charge the excess of his
payments on the inheritance. Under such circumstances, there
is a presumption of the sufficiency of the rents and profits, and
the personal representatives of the tenant for life cannot be
allowed to rebut that presumption {Lord Kcnm))(jton v. Bouverie^
19 B. 39 ; revd. 7 D. M. & G. 134 ; but affirmed by three Lords
to two, 7 H. L. C. 557). This decision rested on two grounds :
first, that under the circumstances the sufficiency of the income
POWERS OF CHARGING. ^41
to pay the charges was to bo presumed ; secondly, that there
was evidence of the intention of the tenant for life to take the
whole burden on himself (Ir. Jx. 4 Eq. 503).
It seems, therefore, that it would need an express declaration
of intention and notice to the remaindermen to enable the
tenant for life to claim successfully any sum he may have paid
in excess of the rents and profits on account of interest. But if Extent of
such a charge is established, the account to be taken would
extend over the whole period during which the tenant for life
had been in possession ; no Statute of Limitations would apply
(7 D. M. & G. 157 ; Binrcllv. Lord Egremont, 7 B. 205) ; but it
seems that the tenant for life would not be regarded as mort-
gagee in possession, so as to compel him to account on that
footing for the rents which, but for his own wilfid default, he
might have received (7 D. M. & G-. 156).
It is clear, however, that if the rents are insufficient and the
tenant for life applies the rents so far as they will go dming his
lifetime, but does not pay the deficiency, the remainderman
cannot after his death redeem, except on payment of that defi-
ciency, or so much thereof as can be claimed, having regard to
the Statute of Limitations.
7. Although referential trusts and powers are not, as a general Powers to
rule, to be read as multiplying charges {Utndlc v. Tai/lor, 5 D. by reference.
M. & G. 577 ; Baskctt v. Lodge, 23 B. 138), this does not apply
where the estate on which the incumbrances are charged is
increased proportionately.
In Cooper v. 2l((cdui/(i/d (16 Eq. 258), a testator made a series
of specific devises on trust for each of his children for life, with
power for such child to appoint to his widow or her siu'viving
husband an annuity not exceeding one-third of the income of
the property specifically devised to him or her ; he gave liis resi-
duary estate upon and for the same trusts and pm'poses, and
•with the same or the like powers, in favour of all his children,
shai'e and share alike, and their issue, as should correspond with
those thereinbefore expressed and declared concerning the estates
specifically devised. The power was to appoint an annuity not
exceeding a certain proportion of the income of the property
542
A CONCISE TREATISE ON POWERS.
Generality
of charging
power not to
be limited
against in-
tention.
Lapse of
charges crea-
ted under
powers.
cliarged therewitli. The testator gave other property and
subjected it to the same powers; but the proportion still held ;
the intention was considered to be that the power was applicable
to the added, as much as to the original, property. But it would
have been otherwise if the annuity had been of a specific
amount. So, too, if a power of charging has been exercised, and
afterwards estates are settled to the same uses as the property
subject to the power, such estates are not subject to the charge
{Be Berncrs, 41 W. E. 188).
And a power of charging, which is given to A. by reference
to another power given to B., will be free from all contingencies
which are personal to B. ; if this were not so, A.'s power might
very probably be one that would evanesce altogether {Ilarrhigfon
V. Rarriiujfo)!, L. E. 3 H. L. 295).
A power to charge, without regard to any events which may
happen, except only the event of certain numbers of children
coming into existence, when once it has been called into exist-
ence by the birth of children, cannot be limited, controlled, or
questioned in any degree on the ground that under different
states of circumstances different results would be arrived at ; not
even by the extreme case of so many children being born as to
make the charges so numerous as to eat up all the estate {Knapp
V. Knap2J, 12 Eq. 238).
8. If a charge be created under a power, whether with or
without interest, and the donee dies before the age at which it
becomes payable, the charge will sink into the estate (1 Atk.
555) ; so, if a testator executes a power of charging by will, and
the donee dies before the will takes effect, the charge will lapse
for the benefit of the estate. If, however, the charge be called
into existence, and the intention be clear that it is to be a
charge at all events, and the intention that the donee should
take is merely secondary, then the charge will remain for the
benefit of the next of kin or residuary legatee {Fosberr// v. Smith,
5 Ir. Ch. E. 321).
The following propositions are stated by Lindley, L. J., in
Rent// V. Wrcy (21 Ch. D. at p. 359), as the result of the
authorities: — (1) Powers to appoint portions charged on land
POWERS OF CnARGING. •'>43
ought, if the language is doubtful, to be construed so as not to
.authorize appointments vesting those portions in the appointees
before they want them, that is, before they attain twenty-one
or (if daughters) marry. (2) AVlien the language of the power
is clear and unambiguous, effect must be given to it. (3) When
upon the true construction of the power and the appointment
the portion has not vested in the lifetime of the appointee, the
portion is not raisoablc, but sinks into the inheritance. (4) "When
upon tlie true construction of both instruments the portion has
vested in the appointee, the portion is raiseable, even although
the appointee dies under twenty-one, or (if a daughter) un-
married.
In Simmons v. Pitt (8 Ch. 978), a testator having a general
power to charge real estates by deed, exorcised his power by
charging them with 6,000/. and interest, to be paid after the
deaths of himself and his wife to such persons as he sliould by
will appoint. The trusts directed by his will with regard to
this sum were void under the Thellusson Act. This charge
was regarded as personalty, and formed part of the testator's
residuary estate, and went to the next of kin. The charge was
disposed of as personal estate, and was personal estate before it
was appointed.
If the power were limited, the donee could not of course by
his will call the charge into existence so as to keep it alive,
notwithstanding the death in his lifetime of all the objects of
the power.
And as to the doctrine of the Court that portions, although
in a sense vested, shall not be raised, unless they are actually
required, see Darics v. Huguonn (1 II. & M. 730) ; Roniuott v.
Hood (2 D. F. & J. 396) ; and as to double portions, see
Chichester v. Corenirij (L. R. 2 II. L. 71) ; MacCarogher v.
Wliieldon (3 Eq. 236) ; Deucsoii v. Baicsoit (4 Eq. 504) ; Stevenson
V. Masson (17 Eq. 78).
544
A CONCISE TREATISE ON POWERS.
CHAPTER XVI.
POWERS OF SALE, EXCHANGE, ETC
■•j
Are usual
powers.
PAGE
Powers of sale are usual powers 544
Where the insertion of the
power is authorized 54 G
Eeceipt clause ib.
Form of the power 548
Conversion , ib.
Duties of the donees of the power ib.
Sale by mortgagee 550
Sale by auction, S;c 552
Future option 554
PAGE
Sale of trust estate with other
estate 554
4. Boes power of sale or exchange
authorize partition ? 556
5. When power to sell authorizes
a mortgage 558
G. Fouers of sale in mortgages .. 560
7. When the tenant for life may
purchase 561
8. Foicers of sale, S;c., of settled
land under Settled Land Acts . 5G5
Where no
directions are
given.
1. Powers of leasing, of sale and excliange, and, where tliere
is any joint property, or tliere are any mines or any land fit for
building purposes, powers of partition, of leasing mines, and of
granting building leases, are powers for tlie general management
and better enjoyment of tlie estates, and sucb powers are bene-
ficial to all parties {Rill y. Hill, 6 Sim. 145). Powers of sale
are therefore " usual powers " within the meaning of an agree-
ment to make a settlement containing all usual powers. In
DuJ;e of Bedford v. Marquis of Ahcrcorn (1 My. & C. 312), it was
provided by ante-nuptial marriage articles that the settlement
(which was to relate to lands in Ireland) should contain all
the covenants, provisions, and conditions usually contained in
man-iage settlements in England. This authorized the inser-
tion of a power of sale and exchange, and the Lord Chancellor
saw no reason for confining it to lands in Ireland, but thought
that it might very well extend to lands in England ; (and see
Peakc V. Tenlincjton, 2 V. & B. 311).
If a testator simply directs a settlement, but says nothing as
to the powers to be contained therein, it seems the better opinion
POWERS OF SAI.K
545
that he must liavo intended all the usual powers of leasing, sale,
and exchange, and for the appointment of new trustees, together
with a receipt clause, to be inserted. It was so held hy Lord
Romilly in Tiinirr v. Sargent (17 B. 515), and hy Fry, J., in
Wise V. Piper (13 Ch. I). 848). But hi Wheate v. Hall (17 Ves.
80) (which was not cited in Turner v. Sargent), Sir "Wm. Grant
refused to compel a purchaser to take a title depending on the
execution of a power of sale, which had been inserted in a
settlement made under the decree of the Court, in a suit to cany
into execution the trusts of a will. The will merely directed a
settlement so as to secure the estate to certain persons in succes-
sion. The Master of the Eolls thought that no great stress
could be laid on the direction to secure the estate to the succes-
sive devisees, as indicating an intention to exclude a power of
sale : but in the absence of any expression from which the
intention to include such power could be inferred, he was not
aware that it was ever decided that the introduction of such a
power under such circumstances was of course : nor had he
learnt that it was the practice to insert a power of sale in
executing such a trust, where the will was entirely silent.
It has been held that where some powers (not including a Where some
power of sale) are expressed, a power of sale cannot be implied, directed.
In Brewster v. Angell (1 J, & "W. 025), there was a direction to
insert all proper powers and authorities for making leases and
otherwise according to circumstances, to and for the tenants for
life, to be exercised by them at such times as they should by
law be qualified to do so, and the same powers and authorities
to be exercised on their behalf by A. and B., their heirs and
successors, whenever such tenants for life should be disabled or
disqualified, &c. This was held not to authorize the insertion
of a power of sale, whether exerciseable by the trustees or by
the tenant for life {Home v. Barton, Jac. 437).
But in Taskerx. Small (G Sim. 625; 3 M. & C. 63), marriage
articles recited that it had been agreed tliat estates of which the
husband was tenant in tail, should, subject to raising 15,000/.
hy mortgage or othenrixe for the husband's use, be settled as
therein expressed ; and the husband covenanted to settle accord-
F. N N
546
A CONCISE TREATISE ON POWERS.
Implied
authority to
insert.
Power to give
receipts.
iugly, subject to the raising of the said sum, by mortgage,
annuity, or otherwise, aud to any deeds for securing the repay-
ment thereof and interest ; this was held to authorize a sale to
raise the 15,000/.
And the insertion of a power of sale may be authorized by
necessary inference.
In WUliams v. Cayfer (Sug. Pow. 945, 839), money was
vested in trustees on the trusts of a marriage settlement, and
the husband covenanted to settle after-acquired property of his
wife, whether real or personal, on the trusts and subject to
the powers of the settlement. The settlement contained the
ordinary power to vary investments. Beal estate subsequently
became subject to the covenant, and it was held that a power of
sale should be inserted in the settlement made thereof ; (and see
Scott V. Steward, 27 B. 3G7 ; Elton v. Elton, 27 B. 634).
In Tail v. LatJthunj (1 Eq. 174), a settlement of personalty
contained a power of sale of the trust funds, and of investment
of the proceeds in realty, which was to be conveyed to the iise
of the trustees upon such trusts as would best correspond with
the then subsisting trusts thereinbefore declared, and such real
estate, when so purchased, was to be considered as personal
estate for the purposes of the settlement and go accordingly.
There was no express power of sale over the real estate to be so
purchased, and no power to give receipts. It was held that the
trustees were intended to have both these powers.
In Tait V. L(itht)Hnj and in TurNcr v. Sargent {ante, p. 545),
it was held that not merely was a power of sale to be inserted,
but a power to give receijDts also. In Cox v. Cox (1 K. & J.
251), a testatrix declared that every tenant for life or in tail
under her will should have such and the lilce powers of leasing,
selling, and exchanging any part of her estate as were by her
father's will given to the tenants for life or in tail under his
will or to the trustees thereof. It appeared that her father's
will did not give the tenants for life or in tail any powers, but
gave the trustees full power to sell and exchange and to give
receipts. It was held that the tenants for life and in tail under
the testatrix's will had power to sell, but, under the circum-
POWERS OF SALE.
647
stances of the ease, had not power to give receipts. The V.-C.
said that this power of giving receipts was a power separate
from powers of sale, and by no means inserted as of course in
legal instruments ; it was often excluded, and, where excluded,
it had never, except under very special circumstances, been held
to be capable of being implied. The difficulties which would
arise in exercising such a power of sale, might be met by
paying the money into Court under the Trustee Eelief Act (10
& 11 Vict. c. 96). By 22 & 23 Vict. c. 35, s. 23, and 23 & 24 22 & 23 Vict.
c. 35.
Yict. c. 145, s. 29, powers to give receipts were conferred on 23 & 24 Vict.
trustees. And now, by the Conveyancing and Law of Property c- i*-''-
Act, 1881, 8. 36, it is enacted that the receipts in writing of any igJi^^'g, gg'^
trustees or trustee for any money, securities, or other personal
property or effects payable, transferable, or deliverable to them
or him under any trust or power shall be a sufficient discharge
for the same, and shall effectually exonerate the person paying,
transferring, or delivering the same from seeing to the appli-
cation, or being answerable for any loss or misapplication thereof.
This section applies to trusts created either before or after
the 1st day of January, 1882. And see S. L. Act, 1882, s. 40,
post, p. 577.
All trustees who have accepted the trusts, and have not been
discharged by procuring the appointment of a new trustee, or
by the Court (see Courtimii/ v. Courtenai/, 3 Jo. & L. 519), or
under sect. 32 of the Conveyancing Act, 1881, must join in the
receipt {Crcicc v. Dich'ni, 4 Ves. 97). And trustees cannot autho-
rize one of their number to give a receipt {Re Flotvcr, 27 Ch. D.
592). The cases of Wchb v. Lccham (1 K. & J. 385), and Hoj^e
V. LiddeU (21 Beav. 183, 202, 203), and Fenier v. Fcrrier (11
L. R. Ir. 56), cannot be considered sound law; (see Dart Y. & P.
685, 6th ed.). The Conveyancing Act, 1881, s. o(j, making the
receipt on a pm-chase deed sufficient authority to the vendor's
solicitor to give a discharge for the purchase-money did not
apply to trustees {Bcllami/ v. Metropolitan Board of Works, 24
Ch. D. 387) ; but it is now extended to the case of trustees by
the Trustee Act, 1888, s. 2. The solicitor producing the deed
must, however, be the solicitor acting for the person entitled to
N N 2
54S
A CONCISE TREATISE ON POWERS.
Form of tlie
power.
Convcrsioti.
Duties of
donees.
receive the money, and must produce the deed {Be Woohcich
Equitable BuihUng Socief?/, 40 Ch. D. 491).
2. With regard to powers of sale of estates limited to uses, it
is not necessary to give express powers of revocation and new
appointment ; in whatever form the power be given, it will
operate as a power of revocation and new appointment, and
may be executed accordingly (Sug. Pow. 837) . And although
the power goes on to authorize or direct a conveyance " to the
purchaser, his heirs, and assigns," the estate may be conveyed
in any manner or to any uses the purchaser pleases {ibid. 838 ;
and see Davidson, iii. 558 n.).
A power of sale, as distinguished from a trust for sale, does
not operate as a conversion of property. The direction to sell
must be imperative in order to operate as a conversion {Fletcher
V. As/ibuntrr, 1 "W. & T. L. C.) ; but if it be exercised, the
property will be converted accordingly, unless there be a trust
declared of the proceeds sufficient to reconvert it ( Walter v.
Maunde, 19 Ves. 424 ; Be Beauvoir v. Be Beaiiroir, 3 H. L. C.
524 ; Greemcay v. Greemcay, 29 L. J. Ch. 601 ; 2 De G. F. & J.
128; Sug. Pow. 856). The mere fact that the testator leaves
the time of sale to the discretion of trustees does not prevent
the direction from being imperative, so as to operate as a conver-
sion from the testator's death {Bought y v. Bull, 2 P. W. 320 ;
i?e i?rm-, 26 Ch. D. 601).
3. The donees of these powers are within the terms of their
power, if they exercise them without improper motives, and in
the exercise of a reasonable discretion. If they have the usual
power to sell and re-invest the proceeds in land, it is not abso-
lutely essential that they should have an immediate re-invest-
ment in land in view — at any rate, where the settlement contains
the usual clause for interim investments.
In Mortloek v. Buller (10 Yes. 309), Lord Eldon said that
the object of sales of this nature must be to invest the money in
the purchase of another estate to be settled to the same uses ;
and tlie trustees are not to be satisfied with probability upon
that ; but it ought to be with reference to an object at the time
supposed practicable ; or, at least, the Court would expect some
POWERS OF SALE. 549
strong motive of family prudence justifying the conversion, if
it is likely to continue money. Lord St. Leonards points out
that the settlement in this case contained no clause for interim
investment (Sug. Pow. 8G3). And even so, Lord Eldon does
not lay down as an absolute proposition that under the ordinary
power of sale and exchange, trustees can in no ease sell, excej)t
with a view to a contemplated re-investment in land. lie only
says that a very special case must exist to justify such a course
(see 7 Ha. 438). On the other hand Christian, L. J., in Sanhey
v. Alcxamhr (9 I. E. Eq. at p. 302), cites Lord Eldon's obser-
vations in Jlorfhch-y. BuUrr, and says that they lay down a code
of rules for the guidance of trustees in the exercise of such
powers ; and his lordship continues thus : " First and before all
things they must beware of letting the tenant for life get control
of the power, as his object would probably be either to obtain a
better income for himself, or as Lord Eldon pointedly puts it,
' to sell another estate to his family.' Second, the expression
' for such price as to the trustees shall seem reasonable,' must be
construed to mean a reasonableness, intelligent, instructed, and
impartial as between all who have interests imder the settlement.
Third, the trustees ought never to exercise the power, except
with the proximate purpose of acquiring another estate to be
settled to the same uses : and the continuing the proceeds of the
sale as money, and investing it as such, should be a mere ad
interim measure to be put an end to with all convenient speed
by the purchase of another estate ; from which it follows that
nothing could be more improper than to place the money upon
an investment A\-hich, even if it were secure, would present delay
or difficulty in calling it in, whenever an offer of a new purchase
should offer itself." It should be remembered that by the
Settled Land Act the legislatm-e has committed to the tenant
for life that power which the Lord Justice thought it so
dangerous to entrust to him ; and it may be doubted whether
the third of his propositions would be accepted in all its strict-
ness by the English Courts.
The trustees must act reasonably and without improper
purpose, holding an even hand between tenant for life and
550
A CONCISE TREATISE ON POWERS.
Improvident
contract.
Exercise of
power of sale
by mortgagee.
remainderman. If they act hom fide, the Court T\ill not inter-
fere with the exercise of their discretion {Be Bhihe, 29 Ch. D.
913 ; T/iomasY. WiUirnm, 24 Ch. D. 558 ; and see Dart Y. & P.
67, 6th ed.). But trustees do not discharge their duty properly,
if they sell to the family solicitor without proper conditions and
previous inquiry as to value, the ohject of the sale being to raise
money to make an advance under a power in the settlement to
one of the ccstuis que fnisf {Bohiiisony. Briggfi^ 1 Sm. & Gr. 188).
In MarsMUr. Iladden (4 De G. & Sm. 468; 7 Ha. 428), a
mortgagee of settled estates requu-ed either to be paid off or to
have the amount of his interest increased. The tenant for life
proposed a new mortgagee at the same rate ; but the trustees
insisted on being the proper persons to carry the transaction
into effect, and procured another mortgagee, but at a higher
rate of interest; and in order to raise the expenses thereby
incurred, proceeded to sell the estate under the power of sale in
the settlement. On a bill filed by the tenant for life, the Court
held that the trustees' conduct was unjustifiable and condemned
them in costs.
If trustees enter into an improvident contract, it will not be
cancelled, but the Court will not execute it {Turner v. Harveij,
Jac. 178 ; and see Goodwin v. Fielding, 4 D. M. & G-. 90 ; Dart,
1165, 1207, 6th ed.).
A mortgagee with a power of sale is in a very different
position from a trustee for sale. A mortgagee is under obliga-
tions to the mortgagor, but he has rights of his own which he is
entitled to exercise adversely to the mortgagor. A trustee for
sale has no business to place himself in such a position as to
give rise to a conflict of interest and duty. But every mortgage
confers on the mortgagee the right to realize his security, and
find a purchaser if he can ; and if in the exercise of his power
he acts bond fide and takes reasonable precautions to obtain a
proper price, the mortgagor has no redress, even although more
might have been obtained for the property if the sale had
been postponed {Farrar v. Farrara'' Limited, 40 Ch. D. 395 ;
Cholmondeley v. Clinton, 2 J. & W. 1 ; Warner v. Jacoh, 20
Ch. D. 220). However, in JenMnn v. Jones (2 Giff. 99; 29
POWERS OF SALE. 551
L. J. Ch. 403), a sale ])y a mortgagee was set aside on tlio
ground tliat it was oppressive. Aiid a mortgagee cannot sell
for just enough to pay his own deht in entire disregard of the
real value of the estate {Co/son v. WiIH((in^, 01 L. T. 71). A
purchaser for value without notice is protected by the usual
clause exonerating purchasers, although the mortgage debt may
have been discharged {Dirkrr v. AngevHtcin, 3 Ch. D. GOO), but
not if he has express notice of an irregularity which cannot be
waived {Selwijn v. Garfif, 38 Ch. D. 273). And the mortgagee
who sells without complying with the requirements of the
proviso qualifying the power, will be liable in damages to the
mortgagor and the second mortgagees {Hook v. Smif/i, 17
Ch. D. 434). The Court does not as an ordinary rule interfere
to prevent a sale by a mortgagee, except on the terms of the
mortgagor paying into Court the amount sworn by the mort-
gagee to be due on his security {Jfaclcod v. Jones, 24 Ch. D. at
p. 299). The case of a mortgage to the mortgagor's solicitor is
an exception to the rule {ibi/L) ; but only in cases where the
transaction is really an ordinary mortgage transaction [Pooleifs
Trmfce v. Wltctluon, 33 Ch. D. 111). It is conceived, however,
that speaking generally the duties of donees of powers men-
tioned in tliis paragraph, apply to mortgagees as well as to
ordinary trustees.
It is not safe to accomplish indii'ectly under a power what the
power does not authorize to be done du-ectly (»Sug. Pow. 867).
But it seems the better opinion that when the power of sale
contains the usual clause authorizing the proceeds to bo applied
in discharge of incumbrances, they may be applied in paying off
charges under long terms, such as portions, as well as charges
affecting the inheritance (Davidson, iii. 5G4, u.).
By sect. 5 of the Conveyancing Act, 1881, it is enacted as Conv. Act,
follows : — ^ . . ,
^^ , J:'ro\Tsioii for
(1.) Where land, subject to any incumbrance, whether imme- incumbrances
diately payable or not, is sold by the Court, or out of Court, the therefrom.
Court may, if it thinks fit, on the application of any party to
tlie sale, dii'ect or allow payment into Court, in case of an
annual sum charged on the land, or of a capital sum charged on
'3'^'^ A CONCISE TREATISE ON POWERS.
a detenuiuable interest in the land, of such amount as, when
invested in Government securities, the Court considers will be
sufficient, by means of the dividends thereof, to keep down or
otherwise provide for that charge, and in any other case of
capital money charged on the land, of the amount sufficient to
meet the incumbrance and any interest due thereon; but in
either case there shall also be paid into Court such additional
amount as the Court considers will be sufficient to meet the
contingency of further costs, expenses, and interest, and any
other contingency, except depreciation of investments, not ex-
ceeding one-tenth part of the original amount to be paid in,
imless the Court for special reason thinks fit torequire a larger
additional amount.
(2.) Thereupon the Court may, if it thinks fit, and either
after or without any notice to the incumbrancer, as the Court
thinks fit, declare the land to be freed from the incumbrance,
and make any order for conveyance, or vesting order, proper for
giving effect to the sale, and give directions for the retention
and investment of the money in Com-t.
(3.) After notice served on the persons interested in or
entitled to the money or fund in Court, the Court may direct
payment or transfer thereof to the persons entitled to receive or
give a discharge for the same, and generally may give directions
respecting the application or distribution of the capital or income
thereof.
(4.) This section applies to sales not completed at the com-
mencement of this Act, and to sales thereafter made.
It has been doubted whether the section applies to a perpetual
rent-charge {Be G. N. Rail. Co., 25 Ch. D. 788 ; and see s. 45
of the same Act).
Sale by Apart from the Act, under a power in a mortgage to sell
either by pubhc auction or private contract for the best price in
money that could reasonably be obtained, a valid sale by private
contract might be made, although the property had not been
put up or advertised for sale by auction, if the price were
reasonable [Davei/ v. Durrani, 1 De G. & J. 535 ; Harper v.
Hayes, 2 D. F. & J. 542) ; and a reserve bidding might be
POWERS OF SALE.
553
fixed {Be Pci/h)), 10 W. 11. 515 ; 30 B. 252). But an express
authority to sell by public auction did not authorize a sale by
private contract {Daniel v. Adams, Ambl. 405 ; lie Loft, 8 Jiu'.
206) ; although such sales have been upheld {Else v. Barnard,
28 B. 228 ; Bonsjirld v. Hodges, 33 B. 90).
But the power in Daccij v. Darraid was held to be not well Power of sale
1 ^ • ^ , P ,\ I ^ 'I'^es not
exercised by an arrangement by which part ot the mortgaged authorize a
premises was valued and conveyed to the trustees of a charity ^'' '•
at the price settled by the valuer, but no money ever passed,
the mortgagee in fact presenting the charity with the amount :
the sale was set aside, as being colourably and fictitiously made,
though, in the opinion of the Court, not with any dishonest
intention : it was, in fact, a gift and not a sale {ihid.). Donees
of powers of sale may sell either together or in parcels (Dart,
76, 6th ed.) ; but a power to sell all or any part of an estate
would probably not authorize the sale of an undivided share
{ibid.; Chance, Pow. 241) ; nor of anything less than the whole
of a mortgagee's interest in the part sold.
And it seems that the ordinary power of sale and exchange. Sale in con-
where the money is to bo invested in the purchase of other rent-charge,
messuages, tenements, or hereditaments, to be conveyed to the
same uses, does not authorize a sale in consideration of a rent-
charge {Read v. Shaw, Sug. Pow. 953; Ex parte Gartside,
6 L. J. Ch. 266 ; and cf. 19 & 20 Vict. c. 120, s. 12). Lord
St. Leonards (Pow. 864) remarks on this that, although a rent-
charge may be held to be an estate of inheritance in fee simple
within a covenant to settle such an estate, yet where a landed
estate is settled with the usual powers of sale and exchange, it
would be contrary to the meaning of the power to substitute a
mere rent-charge for the territorial possession. On the other
hand, in Re Fez/ton (7 Eq. 463), where real estates were settled,
and there was the usual power to sell and invest the proceeds in
the purchase of other manors, lands, or hereditaments, to be
situate in England or Wales, of a clear and indefeasible estate
of inheritance in fee simple in possession, the Master of the
Rolls held that the settlement authorized an investment in
freehold ground rents : and in Bellot v. Littler (22 W. R. 836 ;
554 A CONCISE TREATISE ON POWERS.
30 L. T. 861), a power to invest in land was lield to authorize
the purchase of mines under part of the settled estates. And
the donees of a power of sale and exchange may pay or receive
Owelty of money for owelty of exchange, although not expressly authorized
exchange. ^^ ^^ g^ {Bcniram v. Whichcotc, 6 Sim. 86). But when the
estates are legal and the power of exchange is limited to
exchange for land of at least equal value, if that value is not
obtained in the exchange, the exchange is void at law, and
equity will not interfere (Ferrand v. Wilson, 4 Ha. 385 ; see
now S. L. Act, 1882, s. 3, and S. L, Act, 1890, s. 9).
Power of sale Donees of a power of sale cannot give a future option of
thorize future purchase {Chiy V. Rujford, 5 De G. & Sm. 768; Oceanic Steam
option. Xavigation Co. v. Sutherhernj, 16 Ch. D. 236). They must
exercise their test endeavour to get a fair and proper price at
the time they sell [Dou-nes v. GrazehrooTx , 3 Mer. 200 ; Ord v.
Noel, 5 Mad. 438) . But there is not necessarily any impropriety
in entering into a conditional contract for sale shortly before the
power of sale has arisen [Jlajor v. Ward, 5 Ha. 598 ; Farrar v.
Farrars, Limited, 40 Ch. D. at p. 412). And it was held in
Cookson V. Lee (23 L. J. Ch. 473), that trustees who were
directed by a private Act to sell building land as such were
authorized to lay it out and make the necessary roads and pay the
costs out of the proceeds of sale ; (and see S.L. Act, 1882, s. 16).
Sale of trust Apart from the Conveyancing Act, 1881, if trustees for sale
other pro- joii^ vnth. the owner of another property in selling both pro-
perty, perties together, they do not commit a breach of trust (1) if
they are satisfied that such a mode of sale is beneficial to the
cestuis que trust ; (2) if their share of the pui'chase-money has
been duly apportioned before the completion of the purchase,
and is paid to them ; and (3) if such share has been apportioned
by themselves, acting under proper advice {Cooper to Harlech, 4
Ch. D. 802, explaining Ecde v. Oahs, 4 D. J. & S. 505 ; ^lorris
V. BehcnJiam, 2 Ch. D. 540). This, however, does not extend to
the case of a lease [Tohon v. SJieard, 5 Ch. D. 19). But first
and second mortgagees can join in selling, and can give a valid
receipt for their portion of the purchase-money {McCarogher v.
Whieldon, 34 B. 107; Re Thompson and Holt, 44 Ch. D. 492;
POWERS OF SALE. 555
and as to a mortgagee selling property comprised in two different
mortgages, see Hmtf v. IliUman, 10 W. R. 604).
It is now enacted by sect. 35 of the Conveyancing Act, Power to sell
bv auction,
1881 :- .kc.
(1.) Where a trust for sale or a power of sale of property is
vested in trustees, tlioy may soil or eonenr witli any othor person
in selling all or any part of the property, either subject to prior
charges or not, and either together or in lots, by public auction
or by private contract, subject to any such conditions respecting
title or evidence of title, or other matter, as the trustees think
fit, with power to vary any contract for sale, and to buy in at
any auction, or to rescind any contract for sale, and to resell,
without being answerable for any loss.
(2.) This section applies only if and as far as a contrary
intention is not expressed in the instrument creating the trust
or power, and shall have effect subject to the terms of that
instrument and to the provisions therein contained.
(3.) This section applies only to a trust or power created by
an instrument coming into operation after the commencement of
this Act.
And by the Settled Land Act, 1882, s. 19, it is enacted that
where the settled land comprises an undivided share in land, or,
imder the settlement, the settled land has come to be held in
imdivided shares, the tenant for life of an imdi\ided share may
join or concur in any manner and to any extent necessary or
proper for any purpose of this Act, with any person entitled to
or having power or right of disposition of or over another
undivided share.
Trustees who have a power of sale at the request and by the Discretion of
tnistcGs to
direction of the tenant for life have a discretion in complying or consent,
refusing to agree to a request by the tenant for life to sell, and
the Court will not control such discretion {Tltomaa v. Dcring, 1
Keen, 729) ; but if they disclaim, the Court may execute the
power {Broinie v. P/nill, 10 Jur. 707; Prentice v. Pnnfice, 10
Ha. App. xxii. ; Ilewett v. Ilviveft, 2 Eden. 332).
Trustees may adopt as their own a contract entered into by
the tenant for life {Bhichvood v. Borrotves, 4 Dr. & War. 441) :
556
A CONCISE TREATISE ON POWERS.
Deposit.
Wlietlier
power of sale
or excliaiige
authorizes
partition.
in otlier words, tliej may negotiate a sale by an agent, and that
agent may be the tenant for life, and his agency may be adopted
ex 2}ost facto.
A tenant for life, whose consent is requisite to a sale, and
who is made party to a contract in that capacity, and receives a
deposit, is not entitled to retain the dej)osit for his own benefit
if it is forfeited, but such deposit forms part of the trust property
[Shrewshur)/ v. Sln-eushnry, 18 Jur. 397).
4. The question whether the ordinary power of sale and
exchange authorizes a partition has given rise to considerable
discussion, and the authorities cannot be said to lay down the
law in a manner which is entirely satisfactory. Apart from
authority, it is difficult to see why trustees, who are authorized
to dispose of lands by way of exchange for an equivalent in
other lands, should not give an undivided moiety of a portion
of the settled land for an undivided moiety in the residue ; and
if the trustees can sell their undivided moiety of part of the
settled land and invest the purchase money in buying the moiety
of the residue, it would seem reasonable that they should avoid
circuity by doing directly that which they could do indirectly
(cf. Be Mackenzie, 23 Ch. D. 750 ; Be Teinan/f, 40 Ch. D. 595).
Having regard to the Settled Land Act and the powers thereby
created, the point will be of less imj)ortance in the future ; but
it is submitted that the authorities apart from the Act decide
this : —
A power of sale does not, but a power of
exchange does, authorize a partition [McQueen v.
Farquhar^ 11 Ves. 467; Re Frith and Oshorne, 3
Ch. D. 618); but, as to the latter, only when the
land is held in two moieties, and no more.
The earlier cases are reviewed and commented on by the late
M. R. in the latter case ; (and see Sug. Pow. 856).
It is to be observed that the decision extends only to powers
of exchange, and is founded in great measure on Doe v. Sjiencer
(2 Ex. 752), where the full Court held that a power to exchange
POWERS OF SALE.
in an Inclosure Act could be exercised by making a partition,
and that there is no substantial difference between partition and
exchange as alleged in Shop. Touch. 292. But the judgment
of the Court is confined to a case between two parties only.
" The things given and taken in exchange run in parallel lines
and cannot pass into three lines or a triangle (see j)er cur. in Eton
Colh'cjc V. Bishop of Winchester, 3 Wils. 408, 497). So that in
no case of three or more co-parceners, or tenants in common, can
a partition be made by means of an exchange. But, if A. and
B. be tenants in common of Blackacre and Whiteacre, we can
discover no principle which is to prevent A. from giving his
moiety of Blackacre to B., in exchange for B.'s moiety of
Whiteacre. ... As a general principle, it may be true that a
power of exchange does not necessarily include a power to make
partition in all cases, as where, for instance, the partition is to
be made among three or more parties, as was the case in Ahel v.
Hccdhcote (4 B. C. C. 277) ; but it does not surely follow from
that that where there are only two parties, the exchange of a
moiety of one part of the land held in common for a moiety of
the other is to be considered bad, because it effectuates a parti-
tion. If we are right in holding (contrary to what is said in
Touchstone) that at common law two tenants in common may
exchange with each other their respective moieties of the different
parts of the land held in common, it must follow, where the
moiety of an estate is settled to uses, with a power of exchange
in the trustees, that such a power may be well executed by
dividing the lands into two portions to be held in severalty, one
to the uses of the settlement, the other by the party entitled to
the other moiety."
In McQueen v. Farquhar (11 Yes. at p. 473), Lord Eldon
says, " A power to make partition would not include a power to
sell, and I think a power of exchanging would not." But this
was no part of the decision, which was that a power of sale,
operating under the Statute of Uses, was not well exercised by
a partition.
In Bras^icij v. Chalmers (16 B. 223), Lord Eomilly considered
the clear effect of McQueen v. Farquhar to bo, that if Atxl v.
5oi
558
A CONCISE TREATISE ON POWERS.
Evidence of
intention.
Enfranchise-
ment.
Heathcotc (2 Yes. jun. 98) should be thought to sanction the
doctrine either that a power of exchange or a power of sale,
expressed in orduniry terms, authorizes partition, that doctrine is
not to be supported, and that it is in truth overruled by and is
inconsistent with the decision in McQueen v. Farquhar. (This
part of the case was not affected by the appeal (4 De Gr. M. &
G. 528).
But the whole context of the instrument creating the power
may show that the intention was that the power of sale and
exchange should extend to partition. Thus, in Bradshaio v.
Fane (3 Drew. 534), where the power was to make sale and
dispose of and convey in exchange, and the powers to revoke
and limit new uses also referred to disposition, and the decla-
ration as to the application of the money to be obtained referred
in terms to j)arfifion, it was held that on the whole context the
settlor intended the power to be in effect a power of partition as
well as of exchange.
It has been suggested, that under the ordinary power of sale
a partition might be effected by selling the undivided portion
and purchasing with the proceeds the portion required {Aff.-
Gen. V. Hamilfoii, 1 Madd. 223) ; and so an exchange might
be effected by reciprocal sales (Sug. Pow. 858).
And it seems that a power of sale and exchange authorizes an
enfranchisement (Dart, Y. & P. 6th ed. 89 ; and cf. lie Adair,
10 Eq. 124).
A power of
Hule autho-
rizes a mort-
gage.
5. A power of sale generally authorizes a mortgage.
In Milk V. Banks (3 P. W. 1), there was a trust to raise
portions, and an ambiguity arose from the nature of the trust
whether the portions were to be raised by sale or mortgage ;
the Court decreed a sale, but the L. C. said (p. 9), "A power to
sell implies a power to mortgage, which is a conditional sale."
On this Lord Langdale, in Ilaldenht/ v. Spqff'ort/i (1 B. 390,
395), says, " This I conceive to mean that where it is intended
to preserve the estate, there under a direction for sale, a mort-
gage will sufficiently answer the purpose ; " that is, as explained
POWERS OF SALE. 559
by Lord St. Leonards (I D. M, & G. at p. 045), where the
estate is to g-o suLject to the cliargo, there cau be no objection to
raising that charge by mortgage. In B((ll v. Harris ( i M. & (j.
264, at p. 267), Lord Cottenham says, " So long ago as the case
of Mill.-i V. Banks, in 1724, it seems to have been assumed as
settled that a power to sell implies a power to mortgage, whicli
is a conditional sale ; and no case has been quoted throwing
any doubt on that proposition."
StroughUl v. Aiisfci/ (1 D. M. & Gr. 635) was a case of abso-
lute trust for sale, and the property was leasehold ; and it is
submitted that Lord St. Leonards, when speaking of a power of
sale in his judgment in that case, means a power which is to be
exercised so as to work conversion, and not a mere power
coupled with a trust for reinvestment in land. lie qualifies the
generality of the statements of his predecessors above quoted as
follows : " My own experience is that, generally speaking, a
power of sale out and out, for a purpose or with an object
beyond the raising a particular charge, does not authorize a
mortgage : but that where it is for raising a particular charge,
and the estate itself is settled or devised subject to that charge,
there it may be proper imder the circumstances to raise the
money by mortgage ; and the Court will support it as a condi-
tional sale, as something within the power, and as a proper
mode of raising the money."
In that case Lord St. Leonards also said, that in a case where
trustees have a legal estate, and are to perform a particular
trust through the medium of a sale, although a direction for a
sale does not properly authorize a mortgage, yet where the cii'-
cumstances would justify the raising of a particular charge by
mortgage, it must be in some measure in the discretion of the
Court whether it will sanction that particular mode or not. It
may be the saving of an estate, and the most discreet thing that
can be done : and as the legal estate would go, and as the pur-
poses of the trust would be satisfied, it was impossible for the
Court to lay down that in every case of a trust for sale to raise
particidar sums, a mortgage might not under the circumstances
be justified. As a general ride, however, there could be no
560
A CONCISE TREATISE ON PO"\VEES.
difficulty in sajang tliat a mortgage under a mere trust for
conversion out and out is not a due execution of that trust ; (and
see Page v. Cooper, IG B. 396 ; Devaynen v. Rohinso)), 24
B. 86).
In BeiDieft v. Wyiidhdm (25 B. 521), a testator devised real
estates to trustees in fee, upon trust out of the rents, issues, and
profits thereof to pay two annuities, and by the same ways and
means or such other w'ays and means (except a sale or sales), as
they might think proper, to raise money to pay off certain charges.
The Master of the Rolls thought that the word " sale " expressly
excluded the possibility of raising the money by sale of any por-
tion of the estate, and that the word " sale " virtually included
within it the word "mortgage," which was practically a sale, and
could not be resorted to without giving the mortgagee a power of
getting possession of the estate, if the charge were not paid off
when required.
Execution of 6. A j^owcr of Sale in a mortgage may, if exercised
in mortgage. hond fide, be Validly exercised by a sale for a
sum, part of which is allowed by the mortgagee
to remain on mortgage at his own risk [Davey v.
Durrant, 1 De G. & J. 535 ; Thurlow v. MacJceson,
L. E. 4 Q. B. 97; Bettyes v. Maynard, 31 W. R.
461).
In Darnj v. Bur rant there was the usual power, but a clause
■was added providing that all an^angements, sales, &c., made by
the mortgagee should be as valid and effectual without, as the
same would be with, the concurrence of the mortgagor. The
mortgagee agreed to sell the mortgaged premises, and it was
by the same uisfrument further agreed that part of the purchase-
money (seven-twelfths) should remain on mortgage of the said
premises. It was objected that the power did not authorize the
mortgagee to permit part of the purchase-money to remain
outstanding when he sold. But L. J. Knight-Bruce held that
it is not beyond the right or authority of a mortgagee, with a
POWERS OF SALE. ^^1
power of sale to effect a sale, of wliicli one of tlie terms shall be
tlmt even a considerable portion of the piu-chase-money shall be
allowed to remain on mortgage of the property, that mortgage
being, as between the seller and those entitled to the equity of
redemption, at the seller's risk ; that is, he charging himself
with the wliolc amount of the inirehase-money in account with
them, as had been done in the case before the Court. The
L. J. Turner rested his decision on the clause above refen-ed to
with regard to the mortgagor's concm-rence.
In Thurloic v. Jfadrsoif, the contract for the sale was a
separate and distinct instrument, and no trace of the arrange-
ment that part of the purchase-money should remain on mort-
gage appeared on it. The transaction was held to be valid,
being, in fact, a sale by the mortgagee under his power and a
mortgage back to him.
There may of course be collusive sales ; but in the absence of
collusion or fraud, there is nothing in the terms of an ordinary
power of sale in a mortgage to prevent a sale by the mortgagee,
allowing part of the piu'chase-money to remain on mortgage at
his own risk; (and see Sug. Y. & P. 14th ed. 66 ; Dart, Y. & P.
6th ed. 90) ; but it is submitted that he cannot sell for a rent-
charge or anything but a gross sum of money.
7. A power of sale in trustees, to be exercised at tlic Tenant for
••■ lifo whose
request or Avitli the consent of the tenant for life, consent is
P f n required may
may be exercised by a sale to such tenant for life buy.
{Howard v. Ducane, T. & R. 81 ; Dicconson v.
Talbot, G Ch. 32).
The ground of the rule is that the power of consenting to, or
requesting an exercise of the power of sale, is given to the tenant
for life for his own benefit, and that he is not in a fiduciary
position as to it [ibid. 37).
The tenant for life is not, however, in the same position as a
stranger as to the obligation to communicate what he knows.
He may, by reason of his peculiar opportunities of obtaining
information, be under some obligation to communicate cireuni-
F o o
562 A CONCISE TREATISE ON POWERS.
stances wliicli lie knows, and wliicli he knows that the trustees
do not know [ibid. 38).
TThere he is It is submitted that in cases where the tenant for life is him-
pow-er. self the donee of the power, whether with or without the consent
of trustees, and whether under a power in an instrument or
under the Settled Land Act, he cannot purchase from himself.
A sale by a person to himself is no sale at all, and a power of
sale does not authorize the donee of the power to take the pro-
perty subject to it at a price fixed by himself, even although
such price is the full value of the property. Such a transaction
is not an exercise of the power, and the interposition of a trustee,
although it gets over the difficulty so far as form is concerned,
does not affect the substance of the transaction {Farrar v.
Farrars, Limited, 40 Ch. D. at p. 409). The case before the
Court was that of a sale by mortgagees ; but it is submitted
that the observations quoted are of general application.
The legislature has now provided for the case of a tenant for
life under the Settled Land Acts by sect. 12 of the Act of 1890,
which enacts : —
S. L. A. 1890, " Where a sale of settled land is to be made to the tenant
for life, or a purchase is to be made from him of land to be
made subject to the limitations of the settlement, or an
exchange is to be made with him of settled land for other land,
or a partition is to be made with him of land an undivided
share whereof is subject to the limitations of the settlement, the
trustees of the settlement shall stand in the place of and repre-
sent the tenant for life, and shall, in addition to their powers as
trustees, have all the powers of the tenant for life in reference
to negotiating and completing the transaction."
In addition to the objection that there must be two parties to
a bargain, and that a man cannot contract with himself, the
general rule in equity is that a man must not place himself in
a situation in which his interest conflicts with his duty. In
Grover v. Hugell (3 Euss. 428), the Master of the Rolls refused
to enforce specific performance of a contract, where the title was
derived from an incumbent, who had sold part of the glebe for
the redemption of land tax to a purchaser in trust for himself.
s. 12
POWERS OF SALE.
563
The duty of the rector was, to obtain the best possible price for
the land sold, and his interest as purchaser was, to pay the least
possible price for it. The sale in that case was required to bo
by public auction, and before two of the commissioners or some
person authorized by them ; and their approbation of the sale
was required ; these requh-ements appear to have been fulhlled.
In Bidden V. KiiKj (0 Ha. 499), the question arose under the
statute 42 Geo. 3, c. 110, giving power to prebendaries to sell :
the yice-Chancellor said (p. 519), " I agree that where a power
of sale is given without restriction, to a party lia\dng a limited
interest only, it may well be held that the power to sell imports a
negative upon the power to buy, because the power to sell is in
the nature of a trust, and it is obvious that the party who is
interested to sell cannot in such a case safely be permitted to
buy. This rule, I thiuk, maybe can-ied fui-ther; that a restric-
tion put upon the power of sale will not, in all cases, authorize
the pariy, to whom the power to sell is given, to become the
pui-chaser of the estate which is the subject of the power; but I
am not prepared to hold that in no case would this Court permit
the party who has the power to sell to become the purchaser of
the estate to be sold under the power, and it would be contrary
to authority so to lay down the rule. I think it must in each
case depend upon the circimistances imder which, and the pm--
poses for which, the power was given, and upon the nature and
extent of the restrictions which are put upon the exercise of the
power. The objections which, in the case of an unrestricted
power, apply mth so much force to the donee of the power
being permitted to buy, certainly do not apply with the same
force in the case of a restricted power. In proportion as the
power is restricted, the dangers incident to allowing the donee
to purchase ai'e diminished." In the case before the Com-t, the
Lords Commissioners had an absolute veto on the sale, and
(s. 74) might require to be furnished with all information which
the donee of the power might possess.
In Green hi ICY. Kiiuj (3 B. 49), a rector was empowered by Power to raise
Act of Parliament, with consent of his Bishop, who was patron ^°^^^'
of the living, to raise money by annuity to build a new house,
<) 2
JGl
A CONCISE TREATISE ON POWERS.
Lease by
tenant for life
to kimself .
By mortgagor
to himself.
Mortgagor
may not buy
from first
mortgagee to
detriiiioiit of
second mort-
gagee.
the plan and accounts of wliicli were to be approved by tbe
Bishop. The Bishop advanced the money himself, and
obtained an annuity charged on the living ; although there
■was no unfairness, the transaction was set aside. And Lord
Eldon's remark (T. & R. 86) that " there must be a dihgent
attention on the part of the trustees to see that they get a rea-
sonable price," seems incompatible with holding that a tenant
for life, with an unrestricted power of sale, can sell to himself.
On the other hand, in Wil.^on v. Scicell (4 Bm^. 1974), a
building lease made under a power by a tenant for life was
upheld, although it was granted to a person in trust for the
tenant for life himself ; (see, too, Cardigan v. Montague, Sug.
Pow. 918).
On the same principle, in Bcvan v. ILihgood (1 J. & H. 222),
it was held that a mortgagor, to whom, until entry by the mort-
gagee, a power of granting building leases was reserved, might
make a lease to a trustee for himself. The Yice- Chancellor
said, " The matter reduces itself to this (which but for tlie
authorities on the analogous case of tenant for life and remain-
dennan would be a very grave question) whether under a power
to grant leases at the best rents and subject to other restrictions,
the mortgagor can make a valid bargain, being himself the
person with whom the bargain is in substance made. The
authorities decide that such a bargain may be made by a tenant
for life, the ground being that the estate gets all the benefit to
which it is entitled. This assumes the honesty of the tenant
for life, and it comes to this : that in this particular class of
cases, the Court does not hold by its general doctrine, which
prohibits an agent from contracting for his own benefit as
against his principal. Actual fraud would, of course, be
material.
It has been held {Otter v. Vanx, 2 K. & J. 650 ; 6 D. M. &
Gr. 638), that a mortgagor cannot purchase from a first mort-
gagee under his power of sale so as to affect the second
mortgagee, the mortgagor's duty being to pay off the first
mortgage, the power of sale under which could only arise on his
default; he could not therefore take advantage of his own
default to purchase the estate under the power to the prejudice
POWERS OF SALE. '^C'-'
of the second mortgagee. And if the trustee in bankruptcy of
the mortgagor buys from the first mortgagee, he becomes merely
a transferee of the mortgage as against the second mortgagee
{Bell V. Suiiilcrhiitd BaiMiiKj Soc'udj, 24 Ch. D. 018 ; and see
Crachiall v. Jan-sun, G Ch. L). ToO ; Lc'lbrook v. Pa.samaii, o7
L. J. Ch. 855).
The rules of the Court on the subiect of sales to themselves Rules of the
Court as to
by persons standing in fiduciary relations to the persons in- sales by
terested, are thus stated by L. J. Giffard {Guest v. Sid y the, 5 Edai^'^
Ch. 551, 55G) : "A person who has the conduct of a sale under Positio°a-
the direction of the Court cannot buy ; and, of course, as he
cannot buy, his solicitor cannot buy. Parties to the suit cannot
buy without the special leave of the Court ; and because they
cannot buy, their solicitor also cannot buy. A trustee for sale,
an assignee under a bankruptcy, or the solicitor of an assignee
cannot buy ; and, generally speaking, where a man's duty and
interest in respect of the purchase conflict, he cannot become a
purchaser"; (and see Fox v. MacJa-efh, 1 W. & T. L. C. 115;
Lmldi/ V. Pcard, 33 Ch. D. 500 ; Dart, 6th ed. 35).
8. Extensive powers of sale are now conferred on tenants for
life by the Settled Land Acts. Section 2 of the Act of 1882
defines the terms used in the Act, as follows : —
"(1.) Any deed, will, agreement for a settlement, or other S. L. A. 18S2,
agreement, covenant to surrender, copy of court roll, Act of ^ '' .
Parliament, or other instrument, or any number of instruments,
whether made or passed before or after, or partly before and
partly after, the commencement of this Act, under or by vii-tue
of which instrument or instruments any land, or any estate or
interest in land, stands for the time being hmited to or in trust
for any persons by way of succession, creates or is for purposes
of this Act a settlement, and is in this Act ref en*ed to as a settle-
ment, or as the settlement, as the case requires.
" (2.) An estate or interest in remainder or reversion not
disposed of by a settlement, and reverting to the settlor or
descending to the testator's heir, is for purposes of this Act an
estate or interest coming to the settlor or heir under or by ^■i^tue
of the settlement, and comprised in the subject of the settlement.
566 A CONCISE TKEATISE ON POWERS.
" (3.) Land, and any estate or interest therein, which is the
subject of a settlement, is for pui'poses of this Act settled land,
and is, in relation to the settlement, referred to in this Act as the
settled land.
" (4.) The determination of the question whether land is settled
land, for purposes of this Act, or not, is governed by the state of
facts, and the limitations of the settlement, at the time of the
settlement taking effect.
" (5.) The person who is for the time being, under a settlement,
beneficially entitled to possession of settled land, for his life, is
for pm-poses of this Act the tenant for life of that land, and the
tenant for life under that settlement.
" (6.) If, in any case, there are two or more persons so entitled
as tenants in common, or as joint tenants, or for other concurrent
estates or interests, they together constitute the tenant for life
for purposes of this Act.
" (7.) A person being tenant for life within the foregoing
definitions shall be deemed to be such notwithstanding that,
under the settlement or otherwise, the settled land, or his estate
or interest therein, is encumbered or charged in any manner or to
any extent.
" (8.) The persons, if any, who are for the time being, under
a settlement, trustees with power of sale of settled land, or with
power of consent to or approval of the exercise of such a power
of sale, or if under a settlement there are no such trustees, then
the persons, if any, for the time being, who are by the settle-
ment declared to be trustees thereof for purposes of this Act, are
for purposes of this Act trustees of the settlement.
*' (9.) Capital money arising under this Act, and receivable for
the trusts and purposes of the settlement, is in this Act referred
to as capital money arising under this Act.
" (10.) In this Act—
" (i.) Land includes incorporeal hereditaments, also an un-
divided share in land ; income includes rents and profits ; and
possession includes receipt of income :
" (ii.) Ecnt includes yearly or other rent, and toll, duty,
royalty, or other reservation, by the acre, or the ton, or other-
POWERS OF SALE. 567
wise ; and, in relation to rent, payment includes delivery ; and
fine includes premium or fore-gift, and any payment, considera-
tion, or benefit in the natui'e of a fine, premium, or fore-gift :
" (iii.) Building purposes include the erecting and tlie im-
proving of, and the adding to, and the repairing of buildings ;
and a building lease is a lease for any Ijuilding purposes
or purposes connected therewith :
" (iv.) Mines and minerals mean mines and minerals whether
already opened or in work or not, and include all minerals and
substances in, on, or under tlie land, obtainable by underground
or by surface working ; and mining purposes include the sinking
and searching for, winning, working, getting, making merchant-
able, smelting or otherwise converting or working for the
purposes of any manufacture, carrying away, and disposing of
mines and minerals, in or under the settled land, or any other
land, and the erection of buildings, and the execution of
engineering and other works, suitable for those purposes; and a
mining lease is a lease for any mining purposes or piu-poses
connected therewith, and includes a grant or licence for any
mining purposes :
" (v.) Manor includes lordship, and reputed manor or lordship :
" (vi.) Steward includes deputy steward, or other proper oflicer,
of a manor :
" (vii.) WiU includes codicil, and other testamentary instru-
ment, and a -s^Titing in the nature of a will :
" (viii.) Securities include stocks, funds, and shares :
" (ix.) Her Majesty's High Comi of Justice is refeiTed to as
the Court :
" (x.) The Land Commissioners for England as constituted by
this act are referred to as the Land Commissioners :
" (xi.) Person includes corporation."
Section 8 of the Act of 1884 enacts as follows : — S. L. A. 1884,
" For the purposes of the Act of 1882 the estate of a tenant
by the cm-tesy is to be deemed an estate arising under a settle-
ment made by his wife."
Section 4 of the Act of 1890 enacts as follows : — S. L. A. 1890,
s 4
" (1.) Every instrument whereby a tenant for life, in con-
sideration of marriage or as part or by way of any family
568 A CONCISE TREATISE ON POWERS.
arrangement, not being a secimty for payment of money
advanced, makes an assignment of or creates a charge upon liis
estate or interest under tlio settlement is to be deemed one of
tlie instruments creating tlie settlement, and not an instrument
vesting in any person any right as assignee for value within the
meaning or operation of section fifty of the Act of 1882.
" (2.) This section is to apply and have effect with respect
to every disposition before as well as after the passing of
this Act, unless inconsistent with the natm-e or terms of the
disposition."
S. L. A. 1882, Section 3 of the Act of 1882 enacts as follows :
>< 3
1^ ' » "A tenant for life —
Powers 01
tenant for " (i.) May sell the settled land, or any part thereof, or any
easement, right, or privilege of any kind, over or in
relation to the same ; and
" (ii.) "Where the settlement comprises a manor, — may sell the
seignory of any freehold land within the manor, or
the freehold and inheritance of any copyhold or
customary land, parcel of the manor, with or without
any exception or reservation of all or any mines or
minerals, or of any rights or powers relative to mining
purposes, so as in every such case to effect an enfran-
chisement ; and
" (iii.) May make an exchange of the settled land, or any
part thereof, for other land, including an exchange
in consideration of money paid for equality of ex-
change ; and
" (iv.) Where the settlement comprises an undivided share in
land, or, under the settlement, the settled land has
come to be held in undivided shares, — may concur in
making partition of the entirety, including a partition
in consideration of money paid for equality of par-
tition."
S. L. A. 1882, Section 4 of the Act of 1882 imposes restrictions upon and
Restrictions niakes provisions as to the mode of sale as follows : —
on sales, &c. "(1.) Every sale shall be made at the best price that can
reasonably be obtained.
" (2.) Every exchange and every partition shall be made for
POWERS OF SALE. "^GQ
the best consideration in land or in land and money that can
reasonably bo obtained.
" (3.) A sale may bo made in one lot or in several lots, and
either by auction or by private contract.
" (4.) On a sale tlio tenant for life may fix reserve biddings
and buy in at an auction.
" (5.) A sale, exchange, or partition may be made subject to
any stipulations respecting title, or evidence of title, or other
things.
" (G.) On a sale, exchange, or partition, any restriction or
reservation with respect to building on or other user of land, or
with respect to mines and minerals, or with respect to or for the
purpose of the more beneficial working thereof, or with respect to
any other thing, may be imposed or reserved and made binding,
as far as the law permits, by covenant, condition, or otherwise,
on the tenant for life and the settled land, or any part thereof,
or on the other party and any land sold or given in exchange
or on partition to him.
" (7.) An enfranchisement may be made with or without a
re-grant of any right of common or other right, easement, or
privilege theretofore appendant or appurtenant to or held or
enjoyed with the land enfranchised, or reputed so to be.
" (8.) Settled land in England shall not be given in exchange
for land out of England."
This section was amended by s. 11 of the Housing of the
Working Classes Act, 1885 (48 & 49 Yict. c. 72), which has
now been repealed by 53 & 54 Yict. c. 70, s. 102. This latter
Act, however, re-enacts s. 11 of the earlier Act by s. 74, which
is as follows : —
"(1.) The Settled Land Act, 1882, shall bo amended as 53 & 54 Yict.
, ,, c. 70, s. 74.
loilows : — ^ , .
\vorking
" (a) Any sale, exchange, or lease of land in pursuance of the clusses.
said Act, anIicu made for the purpose of the erection
on such land of dwellings for the working classes, may
be made at such price, or for such consideration, or for
such rent, as having regard to the said purpose, and
to all the cii'cumstances of the case, is the best that
570 A CONCISE TREATISE ON POWERS.
can be reasonably obtained, notwithstanding tliat a
higlier price, consideration, or rent might have been
obtained if the hmd were sold, exchanged, or leased
for another purpose.
'* (b) The improvements on w^hich capital money may be
expended, enumerated in s. 25 of the said Act, and
referred to in s. 30 of the said Act, shall, in addition
to cottages for labom-ers, farm-servants, and artizans,
w'hether employed on the settled land or not, include
any dwellings available for the working classes, the
building of which in the opinion of the Court is not
injurious to the estate.
" (2.) Any body corporate holding land may sell, exchange,
or lease the land for the purpose of the erection of dwellings for
the \^'orking classes at such price, or for such consideration, or
for such rent as having regard to the said purpose, and to all
the circumstances of the case is the best that can be reasonably
obtaLQed, notwithstanding that a higher price, consideration or
rent might have been obtained if the land were sold, exchanged
or leased for another purpose." Cf. s. 29 of the Charitable
Trusts Act, 1855.
S. L. A. 1890, And by s. 18 of the Settled Land Act, 1890, it is provided that —
s 18
" The provisions of section eleven of the Housing of the
Working Classes Act, 1885, and of any enactment which may
be substituted therefor, shall have effect as if the expression
' working classes ' included all classes of persons who earn their
livelihood by wages or salaries : Provided that this section shall
apply only to buildings of a rateable value not exceeding one
hundi-ed pounds per annum."
In addition to the persons defined as tenants for Ufe the
following persons have the powers of a tenant for life, as the
following sections of the Act of 1882 show : —
S. L. A. 1882, "58. — (1.) Each person as follows shall, when the estate or
■ ■ , interest of each of them is in possession, have the powers of a
Persons ■who
have powers tenant for life under this Act, as if each of them were a tenant
life. for life as defined in this Act (namely) :
" (i.) A tenant in tail, including a tenant in tail who is by Act
POWERS OF SALE.
of Parliament restrained from Larriug or defeating his
estate tail, and although the reversion is in the Crown,
and so that the exercise by him of his powers under
this Act shall Lind the Crown, hut not including such a
tenant in tail where the land in respect whereof he is so
restrained was purchased ^sitli money provided by
Parliament in consideration of public services :
" (ii.) A tenant in fee simple, with an executory limitation,
gift, or disposition over, on failure of his issue, or in
any other event :
" (iii.) A person entitled to a base fee, although the reversion
is in the Crown, and so that the exercise by him of his
powers under this Act shall bind the Crown :
" (iv.) A tenant for years determinable on life, not holding
merely under a lease at a rent :
" (v.) A tenant for the life of another, not holding merely
under a lease at a rent :
" (vi.) A tenant for his own or any other life, or for years
determinable on life, whose estate is liable to cease in
any event during that life, whether by expiration of
the estate, or by conditional limitation, or otherwise,
or to be defeated by an executory limitation, gift, or
disposition over, or is subject to a trust for accumula-
tion of income for payment of debts or other
purpose :
" (vii.) A tenant in tail after possibility of issue extinct :
" (viii.) A tenant by the curtesy :
" (ix.) A person entitled to the income of land under a trust or
direction for payment thereof to him duiing his own
or any other life, whether subject to expenses of
management or not, or until sale of the land, or until
forfeiture of his interest therein on bankruptcy or other
event.
" (2.) In every such case, the provisions of this Act referring
to a tenant for life, either as conferring powers on him or
otherwise, and to a settlement, and to settled land, shall extend
to each of the persons aforesaid, and to the instrument under
572 A CONCISE TREATISE ON POWERS.
wbicli liis estate or interest arises, and to tlie land therein
comprised.
" (3.) In any sucli ease any reference in tliis Act to deatli as
regards a tenant for life shall, where necessary, he deemed to
refer to the determination hy death or otherwise of such estate
or interest as last aforesaid.
S. L. A. 1882, " 59. Where a person, who is in his own right seised of or
Infant entitled in possession to laud, is an infant, then for purposes of
absolutely ^j^^g ^^-.j- ^hg land is settled land, and the infant shall be deemed
entitled.
tenant for life thereof.
S. L. A. 1882, " 60. Where a tenant for life, or a person having the powers of
J . \ a tenant for life under this Act, is an infant, or an infant would,
Infant ' ' '
tenant for if ]ie wcre of full age, be a tenant for life, or have the powers of
life.
a tenant for life under this Act, the powers of a tenant for life
under this Act may be exercised on his behalf by the trustees of
the settlement, and if there are none, then by such person and
in such manner as the Court, on the application of a testamentary
or other guardian or next friend of the infant, either generally
or in a particular instance, orders.
S. L. A. 1882, '< Qi — ^2.) The foregoing provisions of this Act do not apply
Married in the case of a married woman.
•woman. « ^2.) Where a married woman who, if she had not been a
married woman, would have been a tenant for life, or would
have had the powers of a tenant for life under the foregoing
provisions of this Act, is entitled for her sejiarate use, or is
entitled under any statute, passed or to be passed, for her sepa-
rate property, or as a feme sole, then she, without her husband,
shall have tlie powers of a tenant for life under this Act.
" (3.) Where she is entitled otherwise than as aforesaid, then
she and her husband together shall have the powers of a tenant
for life under this Act.
" (4.) The provisions of this Act referring to a tenant for life
and a settlement and settled land shall extend to the married
woman without her husband, or to her and her husband
together, as the case may require, and to the instrument under
which her estate or interest arises, and to the land therein
comprised.
POWERS OF SALE. -073
" (o.) The married -woman may execute, make, and do all deeds,
instruments, and things necessary or proper for giving effect to
the provisions of this section.
" (G.) A restraint on anticipation in the settlement shall not
prevent the exercise by her of any power under this Act.
" 62. Where a tenant for life, or a person having the powers of S. L. A.
a tenant for life under this Act, is a lunatic, so found by inquisi- > ^- •
tion, the committee of his estate may, in his name and on his
behalf, under an order of the Lord Chancellor, or other person
intrusted by virtue of the Queen's Sign Manual with tlio care
and commitment of the custody of the persons and estates of
lunatics, exercise the powers of a tenant for life under this Act ;
and the order may be made on the petition of any person
interested in the settled land, or of the committee of the
estate."
The powers conferred upon a tenant for life of dealing with
the mansion-house by s. 15 of the Act of 1882 were repealed by
s. 10 of the Act of 1890 (sub-s. 1) ; and in lieu thereof the
latter section goes on to enact as follows : —
" (2.) Notwithstanding anything contained in the Act of 1882, s. L. A.
the principal mansion house (if any) on any settled land, and ^^^°'.^" ^^'
the pleasure grounds and park and lands (if any) usually house,
occupied therewith, shall not be sold, exchanged, or leased by
the tenant for life without the consent of the trustees of the
settlement or an order of the Com-t.
" (3.) Where a house is usually occupied as a farmhouse, or
where the site of any house and the pleasure grounds and park
and lands (if any) usually occupied therewith do not together
exceed twenty-five acres in extent, the house is not to be
deemed a principal mansion house within the meaning of this
section."
Powers of raising money for certain purposes are conferred
by s. 18 of the Act of 1882, which enacts as follows : —
" Where money is required for enfranchisement, or for S. L. A.
equality of exchange or partition, the tenant for life may raise !5^"' ^1 ^^'.
° ^ "^ Power to raise
the same on mortgage of the settled land, or of any part money.
thereof, by conveyance of the fee simple, or other estate or
074 A CONCISE TREATISE ON POWERS.
interest the subject of the settlement, or by creation of a term
of yeai's in the settled land, or otherwise, and the money raised
shall be capital money arising under the Act."
And by s. 11 of the Act of 1890, which enacts as follows : —
S. L. A. " (1.) Where money is required for the purpose of discharg-
1890 s 11
' ' ' ing an incumbrance on the settled land or part thereof, the
tenant for life may raise the money so required, and also the
amount properly required for payment of the costs of the trans-
action, on mortgage of the settled land, or of any part thereof,
by conveyance of the fee-simple or other estate or interest the
subject of the settlement, or by creation of a term of years in
the settled land, or any part thereof, or otherwise, and the
money so raised shall be capital money for that purpose, and
may be paid or applied accordingly.
" (2.) Incumbrance in this section does not include any
annual sum payable only during a life or lives or during a term
of years absolute or determinable."
S. L. A. ^ tenant for life may contract as provided by s. '61 of the
1882, s. 31. -^ ^ '^
Tenant for life ^^t of 1882 which enacts :—
may contract. " (1.) ^ tenant for life —
" (i.) May contract to make any sale, exchange, partition,
mortgage, or charge ; and
" (ii.) May vary or rescind, with or without consideration, the
contract, in the like cases and manner in which, if he
were absolute owner of the settled land, he might law-
fully vary or rescind the same, but so that the contract
as varied be in conformity with this Act ; and any such
consideration, if paid in money, shall be capital money
arising under this Act ; and
" (iii.) May contract to make any lease ; and in making the
lease may vary the terms, with or without considera-
tion, but so that the lease be in conformity with this
Act; and
" (iv.) May accept a surrender of a contract for a lease, in like
manner and on the like terms in and on which he might
accept a surrender of a lease ; and thereupon may make
a new or other contract, or new or other contracts, for
POWERS OF .SALK. o75
or relative to a lease or leases, in like manner and on
the like terms iu and on wbieli he might make a new or
other lease, or new or other leases, where a lease had
been granted ; and
" (v.) May enter into a contract for or relating to the execu-
tion of any improvement authorized Ly this Act, and
may vary or rescind the same ; and
" (vi.) May, iu any other case, enter into a contract to do any
act for can-ying into effect any of the purposes of this
Act, and may vary or rescind the same.
" (2.) Every contract shall be binding on and shall enure for
the benefit of the settled land, and shall be enforceable against
and by every successor in title for the time being of the tenant
for life, and may be carried into eif ect by any such successor ;
but so that it may be varied or rescinded by any such successor,
in the like case and manner, if any, as if it had been made by
himself.
" (3.) The Coiu't may, on the application of the tenant for life,
or of any such successor, or of any person interested in any
contract, give directions respecting the enforcing, carrying into
effect, varying, or rescinding thereof.
" (4.) Any preliminary contract under this Act for or relating
to a lease shall not form part of the title or evidence of the title
of any person to the lease, or to the benefit thereof."
And the tenant for life may complete his predecessor's contract
by virtue of s. G of the Act of 1890, which enacts : —
" A tenant for life may make any conveyance which is neces- S. L. A.
sary or proper for giving effect to a contract entered into by a ^ ^^' ^' ^'
predecessor iu title, and whicli if made by such predecessor
would have been valid as against his successors in title."
And s. 20 of the Act of 1882 enacts as follows as to the
general effect of the conveyance by a tenant for life : —
" (1.) On a sale, exchange, partition, lease, mortgage, or s. L. A.
charge, the tenant for life may, as regards land sold, given in ^^^-> ^- -^^
exchange or on partition, leased, mortgaged, or charged, or by°tenantTor
intended so to be, including copyhold or customary or leasehold ^®"
land vested in trustees, or as regards easements or other rights
576 A CONCISE TREATISE ON POWERS.
or pri'S'ileges sold or leased, or intended so to be, convey or
create the same by deed, for the estate or interest the subject of
the settlement, or for any less estate or interest, to the uses
and in the manner requisite for giving effect to the sale,
exchange, partition, lease, mortgage, or charge.
" (2.) Such a deed, to the extent and in the manner to and
in which it is expressed or intended to operate and can operate
under this act, is effectual to pass the land conveyed, or the
easements, rights, or privileges created, discharged from all the
limitations, powers, and provisions of the settlement, and from
all estates, interests, and charges subsisting or to arise there-
under, but subject to and with the exception of —
" (i.) All estates, interests, and charges having priority to the
settlement ; and
" (ii.) All such other, if any, estates, interests, and charges
as have been conveyed or created for securing money
actually raised at the date of the deed ; and
" (iii.) All leases and grants at fee-farm rents or otherwise,
and all grants of easements, rights of common, or
other rights or privileges granted or made for value in
money or money's worth, or agreed so to be, before
the date of the deed, by the tenant for life, or by any
of his predecessors in title, or by any trustees for him
or them, under the settlement, or under any statutory
power, or being otherwise binding on the successors in
title of the tenant for life.
" (3.) In case of a deed relating to copyhold or customary
land, it is sufficient that the deed be entered on the court rolls of
the manor, and the steward is hereby required on production to
him of the deed to make the proper entry ; and on that produc-
tion, and on payment of customary fines, fees, and other dues
or payments, any person whose title under the deed requires to
be perfected by admittance shall be admitted accordingly ; but
if the steward so requires, there shall also be produced to him
so much of the settlement as may be necessary to show the title
of the person executing the deed ; and the same may, if the
steward thinks fit, be also entered on tlie court rolls."
POWERS OF SALi:. 577
Sects. 38 to 45 inclusive of the Act of 1882 make provision
for t]ie trustees of the settlement for the purposes of the Act,
and define their powers and duties as follows : —
" <^8. — (1.) If at any time there are no trustees of a settlement S. L. Act,
within the definition in tliis Act, or where in any other case it is i?^'' '^' ^f*
'' 1 rustees for
expedient, for purposes of this Act, that new trustees of a purposes of
settlement be appointed, the Court maj', if it thinks fit, on the
application of the tenant for life or of any other person having,
under the settlement, an estate or interest in the settled land, in
possession, remainder, or otherwise, or, in the case of an infant,
of his testamentary or other guardian, or next friend, appoint
fit persons to be trustees under the settlement for purposes of
this Act.
" (2.) The i^ersons so appointed, and the survivors and survivor
of them, while continuing to be tinistees or trustee, and, until
the appointment of new trustees, the personal representatives or
representative for the time being of the last surviving or
continuing trustee, shall for purposes of this Act become and be
the trustees or trustee of the settlement.
"39. — (1.) Notwithstanding anything in this Act, capital S. L. Act,
money arising under this Act shall not be paid to fewer than pa^'j^e^t^oj
two persons as trustees of a settlement, imless the settlement capital money
authorizes the receipt of capital trust money of the settlement
by one trustee.
" (2.) Subject thereto, the provisions of this Act referring to
the trustees of a settlement apply to the surviving or continuing
trustees or trustee of the settlement for the time being.
" 40. The receipt in \\Titing of the trustees of a settlement, or S. L. Act,
where one trustee is empowered to act, of one trustee, or of the j? "'• ^^ '
personal representatives or representative of the last surviving or clause,
continuing trustee, for any money or seciu-ities, paid or trans-
ferred to the trustees, trustee, representatives, or rei^resentative,
as the case may be, effectually discharges the payer or transferor
therefi'oni, and from being bound to see to the application or
being answerable for any loss or misapplication thereof, and, in
case of a mortgagee or other person advancing money, from
being concerned to see that any money advanced by him is
F. P P
o78
A CONCISE TREATISE ON POWERS.
S. L. Act.
1882, s. 41.
Protection to
trustees.
S. L. Act,
1882, s. 42.
Further pro-
tection to
trustees.
S. L. Act,
1882,8. 43.
Eeimburse-
ment.
S. L. Act,
1882, 8. 44.
Application
to Court.
wanted for any purpose of this Act, or that no more than is
wanted is raised.
"41. Each person who is for the time being trustee of a settle-
ment is answerable for what he actually receives only, notwith-
standing his signing any receipt for conformity, and in respect
of his own acts, receipts, and defaults only, and is not answerable
in respect of those of any other trustee, or of any banker,
broker, or other person, or for the insufficiency or deficiency of
any securities, or for any loss not happening through his own
wilful default.
"42. The trustees of a settlement, or any of them, are not liable
for giving any consent, or for not making, bringing, taking, or
doing any such application, action, proceeding, or thing, as they
might make, bring, take, or do ; and in case of purchase of land
with capital money arising under this Act, or of an exchange,
partition, or lease, are not liable for adopting any contract made
by the tenant for life, or bound to inquire as to the propriety of
the purchase, exchange, partition, or lease, or answerable as
regards any price, consideration, or fine, and are not liable to
see to or answerable for the investigation of the title, or answer-
able for a conveyance of land, if the conveyance purports to
convey the land in the proper mode, or liable in respect of pur-
chase-money paid by them by direction of the tenant for life to
any person joining in the conveyance as a conveying party, or
as giving a receipt for the purchase-money, or in any other
character, or in respect of any other money paid by them by
direction of the tenant for life on the purchase, exchange, par-
tition, or lease.
" 43. The trustees of a settlement may reimburse themselves or
pay and discharge out of the trust property all expenses properly
incurred by them.
" 44. If at any time a difference arises between a tenant for
life and the trustees of the settlement, respecting the exercise of
any of the powers of this Act, or respecting any matter relating
thereto, the Court may, on the ajoplication of either party, give
such directions respecting the matter in difference, and re-
specting the costs of the application, as the Court thinks fit.
POWERS OF SALE. •"'79
"45. — (1.) A tenant for life when intending to make a sale, S. L. Act,
exchange, partition, lease, mortgage, or charge, shall give notice Notice to
of his intention in tliat behalf to each of tlie trustees of the trubtees.
settlement, by posting registered letters, containing the notice,
addressed to the trustees, severally, each at his usual or last
known place of abode in the United Kingdom, and sliall give
like notice to the solicitor for the trustees, if any such solicitor
is known to the tenant for life, by posting a registered letter,
containing the notice, addressed to the solicitor at his place of
business in the United Kingdom, every letter under this section
being posted not less than one month before the making by the
tenant for Hfe of the sale, exchange, partition, lease, mortgage,
or charge, or of a contract for the same.
" (2.) Provided that at the date of notice given the number of
trustees shall not be less than two, unless a contrary intention is
expressed in the settlement.
" (3.) A person dealing in good faith with the tenant for life
is not concerned to inquu'e respecting the giving of any such
notice as is required by this section."
The provisions of the last-mentioned section as to the notice s. L. Act,
thereby required to be given to the trustees of the settlement jg-^^ j^g \q '
have been modified by s. 5 of the Act of 1884, which is as trustees,
follows : —
" (1.) The notice required by section forty-five of the Act of
1882 of intention to make a sale, exchange, partition, or lease
may be notice of a general intention in that behalf.
" (2.) The tenant for life is, upon request by a trustee of the
settlement, to furnish to him sucli particulars and information as
may reasonably be required by him from time to time with
reference to sales, exchanges, partitions, or leases effected, or in
progress, or immediately intended.
*' (3.) Any trustee, by ^^Titing under his hand, may waive
notice either in a particular case, or generally, and may accept
less than one month's notice.
" (4.) This section applies to a notice given before, as well as
to a notice given after, the passing of this Act.
" (5.) Provided that a notice, to the sufficiency of which objec-
rp2
580 A CONCISE TREATISE ON POWERS.
tion has been taken before the passing of this Act, is not made
sufHcient by virtue of this Act."
The 16th and 17th sections of the Act of 1890 are designed
to remove difficulties which had arisen upon the construction of
the former Acts, and enact as follows : —
S. L. Act, " 16. Where there are for the time being no trustees of the
ss. 16 and 17. Settlement within the meaning and for the purposes of the Act
Amendments of 1882, then the followinff persons shall, for the purposes of
as to trustees -^'_ °^ fi,
for purposes the Settled Land Acts, 1882 to 1890, be trustees of the settle-
of the Act. . ^
ment ; namely,
" (i.) The persons (if any) who are for the time being under
the settlement trustees, with power of or upon trust
for sale of any other land comprised in the settlement
and subject to the same limitations as the land to be
sold, or with power of consent to or approval of the
exercise of such a power of sale, or, if there be no such
persons, then
" (ii.) The persons (if any) who are for the time being under
the settlement trustees with future power of sale, or
under a future trust for sale of the land to be sold, or
with power of consent to or approval of the exercise of
such a future power of sale, and whether the power or
trust takes effect in all events or not.
"17. — (1.) All the powers and provisions contained in the
Conveyancing and Law of Property Act, 1881, with reference
to the appointment of new trustees, and the discharge and
retu'ement of trustees, are to apply to and include trustees for
the purposes of the Settled Land Acts, 1882 to 1890, whether
appointed by the Court or by the settlement, or under provisions
contained in the settlement.
" (2.) This section applies and is to have effect with respect to
an appointment or a discharge and retirement of trustees taking
place before as well as after the passing of this Act.
"(3.) This section is not to render invalid or prejudice any
appointment or any discharge and retirement of trustees effected
before the passing of this Act otherwise than under the provisions
of the Conveyancing and Law of Property Act, 1881."
POWERS OF SALE. 581
Tlio Act contains general provisions, savings, and restrictions,
which are enacted by ss. 50 to 57 inchisive of the Act of 18S'2.
" 50. — (1.) The powers under this Act of a tenant for life are S. L. Act,
not capable of assignment or release, and do not pass to a person poJ^rs not
as being, by operation of law or otlierwise, an assignee of a assigTiable.
tenant for life, and remain exerciseable by the tenant for life
after and notwitlistanding any assignment, by operation of law
or otherwise, of his estate or interest under tlie settlement.
" (2.) A contract by a tenant for life not to exercise any of
his powers under this Act is void.
" (3.) But tliis section shall operate without prejudice to the
rights of any person being an assignee for value of the estate or
interest of the tenant for life ; and in that case the assignee's
rights shall not be affected without his consent, except that
unless the assignee is actually in possession of the settled land
or part thereof, his consent shall not be recjuisite for the making
of leases thereof by the tenant for life, provided the leases are
made at the best rent that can reasonably be obtained, without
fine, and in other respects are in conformity with this Act.
" (4.) This section extends to assignments made or coming
into operation before or after and to acts done before or after
the commencement of this Act ; and in this section assignment
includes assignment by way of mortgage, and any partial or quali-
fied assignment, and any charge or incumbrance ; and assignee
has a meaning corresponding with that of assignment.
" 51. — (1.) If in a settlement, will, assurance, or other instru- S. L. Act,
ment executed or made before or after, or partly before and prohibition
partly after, the commencement of this Act a provision is of exercise
■"■ "^ , . , of powers
inserted purporting or attempting, by way of direction, declara- void.
tion, or other^Wse, to forbid a tenant for life to exercise any
power under this Act, or attempting, or tending, or intended, by
a limitation, gift, or disposition over of settled land, or by a
limitation, gift, or disposition of other real or any personal pro-
perty, or by the imposition of any condition, or by forfeiture,
or in any other manner whatever, to prohibit or prevent him
from exercising, or to induce him to abstain from exercising, or
to put him into a position inconsistent with his exercising, any
582
A CONCISE TEEATISE ON POWERS.
S. L. Act,
1SS2. s. 52.
Provision
against
forfeiture.
S. L. Act,
1SS2, s. 53.
Tenant for
life trustee
for all
parties.
S. L. Act,
18S2, s. 54.
Protection of
purchasers.
S. L. Act,
18S2, s. 55.
Exercise of
po-srers of
Act.
power under this Act, that provision, as far as it purports, or
attempts, or tends, or is intended to have, or would or might
have, the operation aforesaid, shall he deemed to he void.
" (2.) For the purposes of this section an estate or interest
limited to continue so long only as a person abstains from
exercising any power shall he and take effect as an estate or
interest to continue for the period for which it would continue
if that person were to abstain from exercising the power, dis-
charged from liability to determination or cesser by or on his
exercising the same.
" 52. Notwithstanding anything in a settlement, the exercise
by the tenant for life of any power under this Act shall not
occasion a forfeiture.
" 53. A tenant for life shall, in exercising any power under
this Act, have regard to the interests of all parties entitled imder
the settlement, and shall, in relation to the exercise thereof by
him, be deemed to be in the position and to have the duties and
liabilities of a trustee for those parties.
"54. On a sale, exchange, partition, lease, mortgage, or charge,
a purchaser, lessee, mortgagee, or other person dealing in good
faith with a tenant for Hfe shall, as against all parties entitled
under the settlement, be conclusively taken to have given the
best price, consideration, or rent, as the case may require, that
could reasonably be obtained by the tenant for life, and to have
complied with all the requisitions of this Act.
" 66. — (1.) Powers and authorities conferred by this Act on a
tenant for life or trustees or the Court or the Land Commissioners
are exereiseable from time to time.
" (2.) Where a power of sale, enfranchisement, exchange,
partition, leasing, mortgaging, charging, or other power is
exercised by a tenant for life, or by the trustees of a settlement,
he and they may respectively execute, make, and do all deeds,
instruments, and things necessary or proper in that behalf.
" (3.) "WTiere any provision in this Act refers to sale, purchase,
exchange, partition, leasing, or other dealing, or to any j^ower,
consent, payment, receipt, deed, assurance, contract, expenses,
act, or transaction, the same shall be construed to extend only
POWERS OF SALE. 583
(unless it is otherwise expressed) to sales, purchases, exchanges,
partitions, leasings, dealings, powers, consents, payments,
receipts, deeds, assurances, contracts, expenses, acts, and trans-
actions under this Act.
"56. — (1.) Nothing in this Act shall take away, abridge, or ?;^' "^^
prejudicially afPect any power for the time being subsisting Savmi?of
under a settlement, or by statute or othens'ise, exerciseable by a ^"^ powers,
tenant for life, or by trustees with his consent, or on his request,
or by his direction, or otherwise ; and the powers given by this
Act are cumulative.
" (2.) But, in case of conflict between the provisions of a
settlement and the provisions of this Act, relative to any matter
in respect whereof the tenant for life exercises or contracts or
intends to exercise any power under this Act, the jjrovisions of
this Act shall prevail ; and, accordingly, notwithstanding any-
thing in the settlement, the consent of the tenant for life shall,
by virtue of this Act, be necessary to the exercise by the trustees
of the settlement or other person of any power conferred by the
settlement exerciseable for any purpose provided for in this
Act.
" (3.) If a question arises, or a doubt is entertained, respecting
any matter within this section, the Court may, on the application
of the trustees of the settlement, or of the tenant for life, or of
any other person interested, give its decision, opinion, advice, or
direction thereon.
" 57. — (1.) Xothing in this Act shall preclude a settlor from s. L. Act,
conferrino- on the tenant for life, or the trustees of the settle- . ,7.'.' ,*
° ' Additional or
ment, any powers additional to or larger than those conferred by lars-er powers
in settlement.
this Act.
" (2.) Any additional or larger powers so conferred shall, as
far as may be, notwithstanding anything in this Act, operate
and be exerciseable in the like manner, and with all the like
incidents, effects, and consequences, as if they were conferred
by this Act, imless a contrary intention is expressed in the
settlement."
The Acts also provide against the Act being rendered in-
effectual by the settlement being framed in the shape of an
ob4 A co^'c^SE treatise on powers.
absolute trust for sale. lu sucli cases the powers of the Act
may still be exercised by the tenant for life under the restric-
tions imposed by s. 63 of the Act of 1882, and ss. 6 and 7 of the
Act of 1884, which enact as follows : —
S. L. Act, " 63. — (1.) Any land, or any estate or interest in land, which
Absolute ' luider or by vii'tue of any deed, wdll, or agreement, covenant to
trusts for surrender, copy of com-t roll. Act of Parliament, or other instru-
sale. ' i. ./
ment or any number of instruments, whether made or passed
before or after, or partly before and partly after, the commence-
ment of this Act, is subject to a trust or direction for sale of that
land, estate, or interest, and for the application or disposal of
the money to arise from the sale, or the income of that money,
or the income of the land until sale, or any part of that money
or income, for the benefit of any person for his life, or any other
limited period, or for the benefit of two or more persons concur-
rently for any limited period, and whether absolutely, or subject
to a trust for accumulation of income for payment of debts or
other purpose, or to any other restriction, shall be deemed to be
settled land, and the instrument or instruments under which the
trust arises shall be deemed to be a settlement ; and the person
for the time being beneficially entitled to the income of the
land, estate, or interest aforesaid until sale, whether abso-
lutely or subject as aforesaid, shall be deemed to be tenant for
life thereof ; or if two or more persons are so entitled concur-
rently, then those persons shall be deemed to constitute together
the tenant for life thereof ; and the persons, if any, w^ho are for
the time being under the settlement trustees for sale of the
settled land, or having power of consent to, or approval of, or
control over the sale, or if under the settlement there are no
such trustees, then the persons, if any, for the time being, who
are by the settlement declared to be trustees thereof for
purposes of this Act are for purposes of this Act trustees of the
settlement.
" (2.) In every such case the provisions of this Act referring to
a tenant for life, and to a settlement, and to settled land, shall
extend to the person or persons aforesaid, and to the instrument
or instruments under which his or their estate or interest arises,
POWERS OF SALE. 585
and to the land therein comprised, subject and except as in this
section provided (that is to say) :
" (i.) Any reference in this Act to tlie predecessors or successors
in title of the tenant for life, or to the remaindermen,
or reversioners or other persons interested in the settled
land, sliall bo deemed to refer to the persons interested
in succession or otherwise in the money to arise from
sale of the land, or the income of that money, or the
income of the land, until sale (as the case may
require) ,
" (ii.) Capital money arising under this Act from the settled
land shall not be applied in the purchase of land unless
such application is authorized by the settlement in the
case of capital money arising thereunder from sales or
other dispositions of the settled land, but may, in
addition to any other mode of application authorized
by this Act, be applied in any mode in which capital
money arising under the settlement from any such sale
or other disposition is applicable thereunder, subject to
any consent required or direction given by the settle-
ment wdth respect to the application of trust money of
the settlement.
" (iii.) Capital money arising under tliis Act from the settled
land and the securities in which the same is invested,
shall not for any purpose of disposition, transmission,
or devolution, be considered as land unless the same
would, if arising under the settlement from a sale or
disposition of the settled land, have been so considered,
and the same shall be held in trust for and shall go to
the same persons successively in the same manner, and
for and on tlie same estates, interests, and trusts as the
same would liavc gone and been held if arising imder
the settlement from a sale or disposition of the settled
land, and the income of such capital money and secu-
rities shall be paid or applied accordingly.
" (iv.) Land of ^\•llatever tenure acquired under this Act by
purchase, or in exchange, or on partition, shall be
586
A CONCISE TKEATISE ON POWERS.
S. L. Act,
1884, s. 6.
Consents by-
tenants for
life.
S. L. Act,
1884, 8. 7.
Leave of
Court
required.
conveyed to and vested in the trustees of the settle-
ment, on the trusts, and subject to the powers and
provisions which, under the settlement or by reason of
the exercise of any power of appointment or charging
therein contained, are subsisting with respect to the
settled land, or would be so subsisting if the same had
not been sold, or as near thereto as circumstances
permit, but so as not to increase or multiply charges or
powers of charging.
" 6. — (1.) In the case of a settlement within the meaning of
section sixty- three of the Act of 1882, any consent not required
by the terms of the settlement is not by force of anything con-
tained in that Act to be deemed necessary to enable the trustees
of the settlement, or any other person, to execute any of the
trusts or powers created by the settlement.
" (2.) In the case of every other settlement, not within the
meaning of section sixty-three of the Act of 1882, where two or
more persons together constitute the tenant for life for the
purposes of that Act, then, notwithstanding anything contained
in sub-section (2) of section fifty-six of that Act, requiring the
consent of all those persons, the consent of one only of those
persons is by force of that section to be deemed necessary to the
exercise by the trustees of the settlement, or by any other per-
son, of any power conferred by the settlement exerciseable for
any pm^pose provided for in that Act.
" (3.) This section applies to dealings before, as well as after,
the passing of this Act.
" 7. With respect to the powers conferred by section sixty-
tlu-ee of the Act of 1882, the following provisions are to have
effect : —
" (i.) Those powers are not to be exercised without the leave
of the Court.
" (ii.) The Court may by order, in any case in which it thinks
fit, give leave to exercise all or any of those powers,
and the order is to name the person or persons to whom
leave is given.
" (iii.) The Court may from time to time rescind, or vary.
POWERS OF SALE.
any order made under this section, or may make any
new or further order.
" (iv.) So long as an order under this section is in force, neither
the trustees of the settlement, nor any person other
than a person having the leave, shall execute any trust
or power created by the settlement, for any purpose
for which leave is by the order given, to exercise a
power conferred by the Act of 1882.
" (v.) An order under this section may be registered and re-
registered, as a lis pendens, against the trustees of the
settlement named in the order, describing them on the
register as * Trustees for the purposes of the Settled
Land Act, 1882.'
" (vi.) Any person dealing with the trustees from time to time,
or with any other person acting under the trusts or
powers of the settlement, is not to be affected by an
order under tliis section, unless and until the order is
duly registered, and when necessary re-registered as a
lis pendens.
" (vii.) An application to the Court imder this section may be
made by the tenant for life, or by the persons who
together constitute the tenant for life, within the
meaning of section sixty-three of the Act of 1882.
" (viii.) An application to rescind or varj^ an order, or to make
any new or fiu'ther order under this section, may be
made also by the trustees of the settlement, or by any
person beneficially interested under the settlement.
" (ix.) The person or persons to whom leave is given by
an order under this section, shall be deemed the proper
person or persons to exercise the powers conferred by
section sixty-three of the Act of 1882, and shall have,
and may exercise those powers accordingly.
" (x.) This section is not to affect any dealing which has taken
place before the passing of this Act, under any trust or
power to which this section applies."
587
588
A CONCISE TREATISE ON POWER?.
CHAPTER XVII.
POWERS OF LEASING.
PAGE
1. Kature of powers of leasing .. 588
2. Contracts for leases not part of
the title 589
3. Leases to give effect to prede-
cessor'' s contract 590
4. Contracts for leases by tenants
for life 591
5. What contracts good under
statutory or similar power . . ih.
Lease commencing in futuro . , 593
6. Leases by trustees ivithout ex-
press poiver ib.
7. Powers of leasing are tisnal
powers 59G
8. Leasing powers of tenant for
life under S. L. Act 597
Exception of mansion house .... ib.
Lease of easement ib.
9. What lands may be leased .... 598
10. Joining strange tenements at one
entire rent 599
11. Tower of leasing mansion house . 600
12. Tower to lease lands usually
demised , ib.
13. What authorizes lease of mines. 602
What is ojH-n mine 604
14. What term authorized 607
Indefinite power 608
16. Leases in possession and rever-
sion 611
Leases in reversion and in
futuro 012
16. Test rent to be reserved 613
Fine, hoiv far permissible .... ib.
17. Criterion of " best rent^'' ... . 614
FAQB
Tower to grant leases in posses-
sion authorizes what leases . , 615
Surrender may be presumed .. 616
4 Geo. 2, c. 28, s. 6 617
Tower to grant leases in posses-
sion and in reversion ...,..,.. 618
Concurrent leases 619
Surrender of existing lease .... 620
Settled Land Act, 1882, s. 13 . 621
Settled Land Act, 1882, s. 31 . ib.
Covenant to lay out money iti
improvements 622
Meaning of divers terms in
poivcrs as to rent, ^-c 623
Usual rent 624
Ancient rent ib.
Tent should be uniform ib.
Yearly rent 625
Half-yearly rent 626
Tayinent in advance ib.
Modes of reserving rent ib.
Tight to re-enter and sue on
covenants 629
Telief against forfeiture under
Conv. Acts, 1881 and 1892 . . 630
Meaning of ^^ reservations^^ ., 634
Counterpart , ib.
Waste ib.
Meaning of "usual covenants^' 638
Tuilding leases 639
Tepairing leases 641
Damages for breach of covenant :
destination of 642
Leases by infants 643
Nature of
powers of
leasing.
1. The principles applicable to otlier powers apply equally to
powers of leasing.
The power is to be exercised for the benefit of the estate ; but
the lessee is a purchaser pro tanto and is entitled to be relieved,
POWEKS OF LKASINf;. 589
as are other purchasers, against defects in the execution of the
powers (see (ude, Ch. VII.). The remuimlerman has no remedy
against the lessee except such as may arise out of an imperfect
or improper execution of tlic power. " TJiere is no case to he
found in our books in which a lease, conformable to tlio literal
tenor of the words in Avhicli the power is gi^X'n, has been hold
invalid at law, on the ground of any supposed or real hardship
thereby inflicted on the remainderman ; and it would be strange
if such a case could be found, for as the remainderman takes
what is given to him subject to the power, he must take the
advantage cum onerc, and has no reasonable ground of complaint
if that should happen which the framer of the power, who had
thejKfi di.sponcndi, contemplated" {i)er Baron Alderson, 1 II. L.
C. 576).
The aid afforded to lessees claiming under defective executions
of powers of leasing has been extended by tlie Kois, 12 & 13
Vict. c. 26, and 13 & 14 Vict. c. 17 {ante, p. 351), and consider-
able alterations in the law applicable to leases by limited owners
have been effected by the Settled Land Acts of 1882 and 1884,
and by the Conveyancing Acts, 1881 and 1882. But the law
relating to the execution of powers of leasing remains to a great
extent the same ; and the Settled Land Act, 1882, s. 56, expressly
preserves other powers of leasing affecting the settled estates, and
provides that the statutorj' powers given by the Act shall be
cumulative ; but in case of conflict the provisions of the Act are
to prevail ; and the consent of the tenant for life is made neces-
sary to the exercise by the trustees of the settlement or other
persons of any power conferred by the settlement exerciseable
for any purpose provided for in the Act ; (as to this section, see
Re Bidr of Neicca-stJe'.^ S. L\, 24 Ch. D. 129).
2. " Where a lease is made under a power contained in a Contracts for
settlement, will. Act of Parliament, or other instrument, any ^^^^^'
preliminary contract for or relating to the lease shall not, for the
pm-poses of the deduction of title to an intended assign, form
part of the title or evidence of title to the lease " (Conv. Act,
1882, s. 4). This applies to all leases whether made before or
after the 1st of January, 1883.
'590 A CONCISE TREATISE ON POWERS.
The object of this section is by no means obvious. The
antecedent contract is merged in the perfected deed {Squire v.
CamphcU^ 1 My. & Cr. 459). "If parties have made an execu-
tory contract which is to be carried out by a deed afterwards
executed, the real completed contract between the parties is to
be found in the deed. . . . You have no right to look at the
contract either for the purpose of enlarging or diminishing or
modifying the contract which is to be found in the deed itself "
{jier James, L. J., in Leggott v. Barrett, 15 Ch. D. at p. 309).
The only case in which, in practice, a purchaser calls for the
production of former conditions of sale or contracts is where
such conditions or contracts are recited in some deed of convey-
ance by trustees which forms part of the title ; and the reason is
that the purchaser has notice of theii- existence, and they may
be of so stringent a character as to affect the validity of the
transaction (as in Dunn v. Flood, 28 Ch. D. 586). This can
hardly be applicable to a lease which must conform to the terms
of the power, and the right to take which is very rarely offered
for public competition.
By the Settled Land Act, 1882, s. 31, sub-s. 4, it is provided
that " any preliminary contract under this Act for or relating to
a lease shall not form part of the title or any evidence of the
title of any person to the lease or to the benefit thereof."
Leases to give 3. " The leasing power of a tenant for life extends to the
predecessor's Diaking of a lease for giving effect to a contract entered into by
any of his predecessors in title for making a lease which, if
made by the predecessor, would have been binding on the suc-
cessors in title " (S. L. Act, s. 12, sub-s. 1 ; and see S. L. Act, 1890,
s. 6, which is said, however, not to extend to leases ; (1892) 2 Ch.
213).
If in this sub-section the terms " predecessor in title " and
" successor in title " are used as strictly correlative, the former
term can include only the settlor ; but the intention appears to
be to include imder " predecessors in title " not only the settlor
but also all persons claiming through him antecedently to the
tenant for life for the time being ; and to include in " successors
in title " all persons whose estates are subsequent to that of
contract.
POWERS OF LEASING. 001
the tenant for life for the time being (see Hood and Challis,
p. 281).
Apart from the Act, it was held in Davia v. ILwford (22
Ch. D. 128) — where real estates were devised in strict settlement
and powers of granting building leases were given to the tenant
for life, and to the trustees during tlie minority of any tenant
in tail, and the tenant for life in pursuance of his power entered
into a valid contract to grant a lease, but died without having
executed the lease, and was succeeded by an infant tenant in
tail — that the trustees had power to effectuate the contract of
the tenant for life by executing a lease.
By s. 16 of 11 Geo. IV. & 1 Will. IV. c. 0,6, infants are
empowered, with the sanction of the Court, to grant renewals of
leases which the lessees are entitled to have renewed under
covenant or agreement.
4. " A tenant for life may contract to make any lease : and Contracts for
in making the lease may vary the terms with or without con- tenant for life,
sideration, but so that the lease shall be in conformity with the
Act" (Settled Land Act, 1882, s. 31, sub-s. 1 (iii.)).
" Every contract shall be binding on and shall enure for the
benefit of the settled land, and shall be enforceable against and
by every successor in title for the time being of the tenant for life,
and may be carried into effect by any such successor ; but so
that it may be varied or rescinded by any such successor in the
like case and manner, if any, as if it had been made by himself "
{ibid, sub-s. 2 ; and see D((vi>i v. Harfonl cited in the preceding
section).
The Act (s. 7) provides that leases granted under the powers
thereby given are to take effect in possession or within twelve
months after their respective dates : and this is the usual pro-
vision in leasing powers created by will or settlement. As to
notice to the trustees before leasing, see S. L. Act, 1882, s. 45,
and S. L. Act, 1890, s. 7 ; Jlocjndrjc v. Cktpj), (1892) 3 Ch. 382.
5. It is submitted that under such a power a valid contract may "WTiat con-
be made to grant a lease commencing at any time within the good^uuder
twelve months : and that such contract if proper at the time of ^♦^^^^to^y
power.
its execution, will be enforceable notwithstanding the death of
the tenant for life or other intending lessor, and any inter-
592 A CONCISE TREATISE OX POWERS.
mediate rise in the value of the land to be demised : but that if
the lease is to commence at any time after the twelve months,
the contract is not void, but cannot be enforced unless it com-
plies with the terms of the power at the date when the lease is
to commence, having regard to the value of the land to be
demised and other cii'cumstances as then existing {Ga.^Vujht and
Cuke Co. V. Toic^c, 35 Ch. D. 519), and unless the donee of the
power who entered into the contract is still alive.
The last cjualification is, it is submitted, a necessary conse-
quence of the difference between relief by way of aid to defective
execution and by way of specific performance. If the instru-
ment creating a power of leasing by deed gives no power to
enter into binding contracts for leases, any contract not under
seal is a defective execution of the power ; and relief must be
sought in equity, either by way of aid to the defective execution,
or by way of specific performance of the contract to grant the
lease. If the defect be merely the want of a seal or the like,
the relief will be by way of aid to the defective execution ; but
a contract such as that in Gaslight Co. v. Toicsc cannot be
regarded as a defective execution, inasmuch as it is by hypo-
thesis, at the time when it was entered into, in excess of the
power. It can only be effectuated by way of specific perform-
ance ; and this can only be had against the party contracting
and persons claiming under him. It is therefore submitted that,
although a contract to renew for a term beyond that permitted
by the power may be specifically enforced, if the donee of the
power is the same when the renewed lease is to be granted, and
if the rent and covenants are then the best rent and the proper
covenants, the equity is a personal one only against the con-
tracting donee, and in no way binds the land, or operates to
compel a subsequent owner or donee of the power to grant a
lease in performance of the contract. If this were otherwise,
the Court would enable a donee to bind not himself but the
land for a period in excess of that expressly limited by the
power; and there would be in effect no distinction between
aiding defective execution and granting specific performance.
" Every contract " in s. 'U sub-s. 2 of the Settled Land Act
must be read as " every contract in conformity with this Act."
TOWERS OF LEASING. 593
It is subinifted that a lease to commence at a future time, Leases com-
altliougli void in law as in contravention of a power to grant futuro.
leases in possession, may bo specifically enforced as a good
contract in equity to grant a lease if the contracting lessor be
alive and able to grant such a lease at the date when the term
purports to commence, and if the rent and covenants be then
the best rent and the proper covenants, on the same principle on
which a lease for more than three years, though void at law if
not under seal, may be enforced in equity as a valid contract
{Parker v. Tasurll, 2 De G. & J. 559 ; Bond v. lio.slinrj, 1 B. &
S. 371). The same result may also be arrived at by the assist-
ance of 12 & 13 Viet. c. 26, s. 4 {ante, p. 351), the effect of
which appears to be to give validity to a lease prematurely
granted, but otherwise proper.
6. It is submitted, although the authorities are not altogether How far trus-
consistent on the point, that trustees who have duties to perfoim express power
in relation to land, have power to lease such land at least from jerseT^'*"*
year to year. It has been held that, where trustees have
property vested in them upon trust for a tenant for life with
remainders over, they are under an obligation, for the pm-pose
of properly carrying out and performing their trust mth regard
to the property, to see that it does not fall into decay from want
of proper repair (i?r Ilofr/ih/s, 32 Ch. D. 408, 417). The most
obvious and simple method of performing this duty is by letting
to a tenant : and it is difficult to say what trustees who have no
express powers of management and no express powers of letting
can do with agricultural land, if they have no such implied
power. It has recently been held that the Court has " an
original jurisdiction" to authorize expenditure in management
{CoNicai/ V. Fciifoii, 40 Ch. D. 512) : but it may be doubted
whether the Court can add to or alter the trusts of a will. It is
suggested that the decision might be supported on an implica-
tion of power ex necessitate rei. The testator intended his
property to be preserved until sale : it was impossible to sell :
he must therefore have intended that expenditure to be made
without which liis paramount intention of haWng his property
sold could not be effected ; (see, too, Re Jackson, 21 Ch. D. 780 ;
Re Be Teissier, (1893) 1 Ch. 153).
r. Q Q
694 A CONCISE TREATISE ON POWERS.
By parity of reasoning it is submitted that the trustees in
such a case would have power to let, at any rate from year to
year, and probably for any reasonable period.
It has been held by the Court of Appeal in Ireland {Fifz-
pafrick \. Waring, 11 L. R. Ir. 35), that a trustee, in whom
the legal estate is vested, and who has active duties to perform,
may, without any express power of leasing, make a yearly or
other reasonable letting of tenantable lands. In that case lands
were devised to A. in fee, upon trust to raise 5,000/., and pay
the same to the trustees of B.'s marriage settlement, and subject
thereto upon trust for B. for life, with remainder to B.'s chil-
dren as she should appoint. B., in 1870, duly appointed the
lands to her son C. in fee, subject to her own life interest, and
died in 1877, whereupon the 5,000/. was paid off by C. In
1872, C. had purported to demise part of the lands to X. for
thirty- five years; but in 1875, A. and B. brought au action of
ejectment against C. and X., and recovered judgment; and
shortly afterwards, A. leased the lands to Y. as yearly tenant.
In 1878, X. resumed possession under a collusive judgment of
ejectment against 0. and Y.'s caretaker, and in 1879 assigned
the residue of his term of thirty-five years to the plaintifp.
Y., however, recovered judgment in ejectment against the
plaintiff, and resumed possession. The plaintiff then brought
an action in the Chancery Division in Ireland to have it'
declared that the lease of 1872 was valid and subsisting against
the estate of C, and that Y. was a trustee for the plaintiff of any
legal estate vested in him, on the ground that A. had no power
to let the lands to Y. C. did not dispute the plaintiff's claim ;
but it was held that A.'s letting to Y. was valid, and that
consequently the plaintiff's claim failed.
The Lord Chancellor (Law) says (p. 44), " What, it may be
asked, is a trustee to whom the management of an estate has been
committed to do with premises which become tenantless from time
to time ? If he cannot let them even to yearly tenants, as they
were probably let before, must he undertake to farm them
himself, and that at no little risk in many ways ? "WeU, the
answer given is, No, he need not assume such labour and
POWERS OF LEASING. 596
responsibility. His proper course is to seek the aid of the Court
of Chancery, by which I presume is meant that he should insti-
tute an action hero for administration and execution of the
trusts imposed upon him. AVell, putting aside the expen.se and
inconvenience of having to take this course merely to let a
farm, I would still ventui-e to ask, if a trustee, as such, could
not make any lotting of even from year to year, however
desirable and for the benefit of the trust, how is it supposed
that the Court of Chancery could help him ? In the exercise of
its jurisdiction for the administration of trusts, this Court, I
apprehend, has no power to make or authorize any leases or
other dispositions of the trust property which the trustee could
not have made himself. The Court in such a case, whether it
assumes the place of the trustee, or guides him in the discharge
of his duties, is still confined witliin the limits of the trust as
constituted by its author, and has no authority to go beyond
those limits. Its business is to execute the trusts, not to alter
them."
If there be an express trust for immediate sale, the trustees Trustees for
ought not to let unless it is absolutely impossible to sell ; and ^aie ouo-ht not
this was all that was decided in EviDtn v. Jachnon (8 Sim. 217),
for the V.-C.'s statement that there might be circumstances to
justify a lease shows that he did not consider a lease necessarily
and absolutely uUr(( rirex. See, too, Drohan v. Drohan (1 B. &
B. 185), where a lease was set aside on the ground that all the
beneficiaries, to the knowledge of the lessee before the lease
was granted, desired an immediate sale. In Naylor v. Aniott
(1 1\. & M. 501), it was argued that the trustees (who had
active duties to perform) were not justified in granting a lease
for ten years, but it was admitted that they could lease from
year to year ; and it was held that they had power to lease for
ten years; (and see Jdiddleton v. Dodsicell, 13 Ves. at p. '268 ; and
Micholls V. Corhett, 34 B. 376; aff. 3 D. J. & S. 18). On the
other hand, in Wood v. Patterson (10 B. 541), Lord Laugdale
held that the Court had no power to authorize a mining lease,
and said, " As to Naijlor v. Anwtt, I should be afraid to act on
it ; for if the trustees unauthorized by the will have the power
Q Q 2
to let.
596
A CONCISE TREATISE ON POWERS.
Powers of
leasing are
"usual
powers."
Building lease
where ordi-
nary lease is
epecLfied.
of leasing for ten years, I see no reason why they have not
power to lease for sixty." And in Re Share (12 Eq. 124),
V.-C. "Wiekens said that Naylor v. Arnoft was not a case to he
followed. It is to he observed that Re S/ui/r was a special case
asking the opinion of the Court on certain points, and that the
V.-C. had already answered the first question by stating that
the property ought to he sold with all convenient speed : no
circumstances as to any necessity for postponing the sale or
managing the property in the meantime appear to have been
stated ; and the Y.-C. merely declined to answer the question
whether the trustees had power to lease for any and what term.
7. Powers of leasing appear to be "usual powers" within
the meaning of a du-ection to make a settlement with all usual
powers {mil V. Hill, 6 Sim. 136; Scoft v. Sfeicard, 27 B. 367).
In Buke of Bedford v. Marquis of Ahercorn (1 M. & C. 312),
the articles contained a stipulation that the intended settlement,
which related to estates in Ireland, should contain all the cove-
nants, provisions, and conditions usually contained in marriage
settlements in England. The Lord Chancellor directed a
reference to inquire whether the powers of leasing joroposed to
be introduced were usual powers in the part of Ireland in which
the estates were situated, and whether there were any circum-
stances connected with the property which might render it
expedient and for the interest of all parties that such powers
should be introduced, with liberty to state special circumstances.
But if leases for a particular term be mentioned, the Court
will not infer from general words that larger powers were
intended to be inserted.
In Pearse v Baron (Jac. 158), the articles provided that the
settlement should contain a power of leasing for twenty-one
years in possession, a power of sale and exchange, of appoint-
ing new trustees, and all such other j)owers, provisions, clauses,
covenants, and agreements, as are usually inserted in settle-
ments of a like nature. The Master of the Rolls held that the
general words were of no effect as opposed to the mention of a
particular term of years for which there was to be a power of
granting leases, and he refused to allow the introduction of a
POWERS OF LEASING.
power to grant building leases for longer terms ; (and of. Brew-sfir
V. Amjrll, IJ. & W. 025).
8. " A tenant for life may lease the settled land or any part S. L. Act,
, , , . ., p 1 • 1 1882, B. 6.
thereof, or any easement, right, or privilege ot any kind over or
in relation to the same for any pm-pose whatever, whether
involving waste or not, for any term not exceeding (i) in the
case of a building lease ninety-nine years ; (ii) in the case of a
mining lease sixty years; (iii) in the case of any other lease
twenty-one years " (Settled Land Act, 1882, s. G). The princi-
pal mansion house on any settled land and the demesne thereof,
and other lands usually occupied therewith are excepted from
the power by s. 15, unless the consent of the trustees of the
settlement or an order of the Com't is obtained ; and the Court
has power to authorize a variation of the terms of building and
mining leases according to the custom of the district (s. 10).
Although s. 15 has been repealed by s. 10 of the Settled Land
Act, 1890, the latter section enacts (sub-s. 2) that the principal
mansion house (if any) on any settled land, and the pleasure
grounds and park and lands (if any) usually occupied therewith
shall not be leased without the consent of the trustees or an order
of the Court: but provides (sub-s. 3) that where a house is
usually occupied as a farmhouse, or where the site of any house
and the pleasure grounds and park and lands (if any) usually
occupied therewith do not exceed together twenty-five acres
in extent, the house is not to be deemed a principal mansion
house.
It will be observed that the Act expressly authorizes a lease Lease of
of an easement, right, or privilege; and by s. 2, sub-s. 10 (iv) ^'*^^™''" •
a mining lease includes a grant or licence for any mining
puq)oses. It has been held that a power to lease the premises
or any part thereof, reserving the best yearly rent with a power
of re-entry, &c., did not authorize a lease of part of the land,
with liberty to sport over the rest : it was not a grant of the
whole, for it contemplated that other parts Avere not leased ; nor
was it a grant of a part, for in the power part was used with
reference to the entirety which the tenant for life had. Thus,
supposing the estate to consist of two houses and one thousand
m
598 A CONCISE TREATISE ON POWERS.
acres, the i:)ower would enable the party to lease one house and
one hundred acres. But the demise must be of the whole of
the part demised ; an easement cannot be granted by itself out
of any separate part : that would be subjecting the land to a
servitude {Dayrell v. Uocwe, 12 A. & E. 356).
In JeiceVs case (5 Rep. 3), it was held that a lease by a bishop
of a fair, parcel of the possessions of the bishopric, was voidable
by his successor, a fair being but a franchise or liberty out of
which a rent cannot be reserved ; and, therefore, for such rent
the lessor and his successors have no remedy by distress ; and all
leases of such inheritances out of which the ancient and accus-
tomed rents cannot be well and lawfully reserved are voidable
by the Act 1 Elizabeth, c. 19. An argument to the same effect
was urged in liickctfs v. Bel/ (1 De G-. & S. 335), where the
lease was of a way-leave ; but the Y.-C. does not refer to the
point in his judgment, although he held the lease ultra vires.
What lands Q. '^q lands Can be leased under a power except such as are
may be leased. . , t a
specified as subject to the power. The Settled Land Act autho-
rizes a tenant for life to lease the settled land. It is conceived
that this would not authorize a person, who happened to be
life tenant under two different settlements with different re-
mainders over, to grant one lease of lands subject to the two
settlements (Hood and Challis, 274).
In Tolsoti V. Sheard (5 Ch. D. 19), two contiguous estates
were devised to trustees upon trust for distinct ccstuis que
trustent ; and by an order under the Settled Estates Act, 1856,
they were authorized to grant mining leases with the consent of
the respective tenants for life. The trustees and the two tenants
for life entered into an agreement to grant one lease of the two
estates at rents and royalties reserved as if the two estates were
one, and there was to be one shaft for working the minerals
under both estates. It was held by Hall, V.-C, and the Court
of Appeal that the trustees had no power to grant such a lease
of the two estates.
A lease which transgresses a power in this respect appears to
bo outside the provisions of 12 & 13 Vict. c. 26, and 13 Vict,
c. 17, for, if the lands demised are not within the power, the
POWERS OF LEASING. 599
Acts have uo application : their scope is to aid defects in the
execution of, not to create new, powers.
10. It lias been said that the mere joining of strange tene- Joining
ments at an entire rent is fatal to the lease {Doc d. Lord mcntw at one
E(jremont v. Sfrp/icn.^, G Q. B. 208). But this appears to be ^"tirerent.
too widely stated. Lord St. Leonards (Pow. 810) lays down
the following rules, which arc supported by Doc d. Douglas v.
Lock (2 A. & E. 705, 747), and Campbell v. Leach (Amb. 740;
Co. Litt. 44 b.).
(i.) Where a rent is reserved according to the quantity or Rules laid
produce, as the tenth of the produce of every mine, or 40.s. an st. Leonards.
acre, or the like, thou although the demise is joint in terms, and
part is not well demised, or is not comprised in the power, yet
it shall hold good as to the lands within the power and duly
demised.
(ii.) "Where the ancient rent is required and that is reserved
as an entire rent for the land wathin the power and more, the
lease is bad as an execution of the power, not simply because it
tends to destroy the evidence of the ancient rent, but because
upon an ap})ortionment the ancient rent would not remain for
the laud anciently let. In Doe d. Bartletf v. Meiidle (3 M. & S.
99), the power was to let any of the lands limited by the settle-
ment so as there "was reserved the ancient rent. The donee of
the power demised lands not anciently let (and held on that
account not to be within the power), and lauds pre\'iously let, at
an entire rent, viz., that at which the latter had been previously
let. This was held void : but here no rent at all was reserved
for the land not [)reviously let. Consequently, if there had been
an apportionment, the ancient rent would not have been reserved
for the lands anciently let. But if the ancient rents be re-
served, two parts of the land, previously let separately, may be
let together at one rent {Doe v. Williams, 11 Q. B. 688).
(iii.) AVhere the best rent is required, and the reservation,
although of one entire rent for lands partly within the power
and partly not subject to it, would upon an apportionment leave
sufficient for the settled lands, so as to satisfy the terms of the
power, it is still open to maintain that the lease may be sup-
of lea sin
mansion
house.
600 A CONCISE TREATISE ON POWERS.
ported as a due execution of the power. A fortiori will this be
so, if there be not one entu-e reservation, but distinct reservations,
altliougli in the same deed. And it is submitted that the pro-
visions of 12 & 13 Vict. c. 26, and 13 Vict. c. 17, would apply-
to such cases as these.
It has been held that where the power was to lease any part
of the settled lands, reserving the usual and accastomed yearly-
rents, &c., part of the premises, formerly demised jointly with
others at an entire rent, might be let at a rent bearing the same
proportion to the old rent that the premises demised by the lease
bore to the whole premises formerly demised {Doe d. Lord
Skrewshury v. Wihon, 5 B. & iVld. 363).
As to power 11. Powers of leasing in modern settlements commonly
extend to all or any part of the settled property, although not
infrequently the mansion house, gardens and park are excepted
out of the power; and the 10th section of the Settled Land
Act, 1890, forbids any lease of " the principal mansion house
(if any) on any settled land and the pleasure grounds and park
and lands (if any) usually occupied therewith," without the
consent of the trustees of the settlement or an order of the
Com-t. But the same section (sub-s. 3) provides that "where a
house is usually occupied as a farmhouse, or where the site of
any house and the pleasure grounds and park and lands (if any)
usually occupied therewith do not together exceed twenty-five
acres in extent, the house is not to be deemed a principal
mansion house within the meaning of this section."
This sub-section settles a point of some difficulty which arose
under the Settled Estates Acts and the Settled Land Act, 1882,
s. 15, as to what constituted a principal mansion house. Those
Acts applied to all settled estates great and small ; but it could
hardly be that a mere villa or dwelling-house became the " prin-
cipal mansion house " simply because there was no other house
on the property.
Lands usually 12. Powers in deeds and wills often contain expressions which
limit the extent of the power: thus, lands "usually demised"
may mean either lands frequently let, referring to repeated acts
of leasing, or lands usually in lease, which would refer to the
demised.
POWERS OF LEASING. tiOl
time during which tlie land had heen let, and not to the acts of
letting: either would appear to come within the meaning of
lands usually demised (»Sug. Tow. 728), altliough it has been
said that lands wliich have been tvdce or thrice letten are within
such a power, but lands once letten, though for a long term, are
not {ibid.) : and it would seem that the lands must have been in
lease within twenty years previously to be within the power
{ibid., and see Co. Litt. 44 b).
The intention of the parties creating the power is in each case Generality of
to govern ; and general words may be limited accordingly. In to carry out
Barjf/ot V. Otuj/ifon (8 Mod. 209), there was a family settlement *^^ ^°t^"*^°°-
of an estate, consisting of grounds always occupied with the
mansion, and of lands let to tenants on rents reserved ; and
there was a power to lease all or any part of the premises at
such yearly rents or more, as the rents at which the same were
then let. Lord Mansfield said that " the qualification annexed
to the power of leasing, that the ancient rent must be reserved,
manifestly excluded the mansion house and lands about it never
let. No man could intend to authorize a tenant for life to
deprive the representatives of the family of the use of the
mansion house. The words in such a case show that the power
is meant to extend only to what has been usually let. By that
means the heii' enjoys all the premises in the settlement, just as
they were held by his ancestor, the tenant for life : he has the
occupation of what was always occupied, and the rent of what
was always let."
So in Pomcry v. Partington (3 T. R. Q^o), a power to let all
or any part of the premises so as the usual rents be reserved,
did not authorize a lease of tithes wliich had never been let
before ; (and see Jfoio/tjoi/'s ca.se, 5 Eep. 4).
If the intention be clear that the power should extend to When the
premises not before demised, the Court will uphold a lease of dudes lands
such premises. ^ot before let.
In JTalcir v. Waheman (2 Lev. 150), there was a power to
demise the settled premises, so as os. per acre rent were reserved:
a lease of tithes comprised in the settlement was held good,
although the restriction was inapplicable to the subject of the
602
A CONCISE TREATISE ON POWERS.
Joining or
separating
lands in
leases.
demise; (and see ComhcrforcVs case, 2^o\\. Abr. 262, pi. 15 ; sed
qu. ; see tliese eases commented on, Sug. Pow. 734).
In Wi)ifer\. Lovcday (1 Com. 41), Lord Holt says, "If a
man hatli a power reserved to him of making leases of two
tilings, and a qualification is annexed to the power which cannot
extend to one of these things, he may make a lease of that thing
without any regard to the qualification ; " and he instances the
case of a power to lease a manor and every part thereof at such
rent as was paid for two years before, and some lands were not
let at any rents for two years before. It would be at any rate
a clearer case if the power were to lease Blackacre and White-
acre at the usual rents, and one had never been let : in such a
case the express words would be too strong.
Under a power to lease any part of devised lands " usually so
leased " so that there be reserved " the ancient and accustomed
rents and heriots or more," a single lease of lands comprised in
the power, but which had never before been comprehended in
one demise, was held good ; the Court being of opinion that
"usually so leased" related to the time and duration of the
lease, not to the joining or separating the premises {Doe d. Lord
Egremont v. Stephens, 6 Q. B. 208 ; Doe d. Bartlett v. Bendle,
3 M. & S. 99).
What will 13. A power to lease lands, without mentioning mines,
?c''al^°oT^nes. authorizos a lease of open but not of unopened
mines : a power to lease lands with the mines
authorizes a lease of open, but not of unopened
mines, if there be any open mines ; but if there
be none, it authorizes a lease of unopened mines
{Clegg v. Roivland^ 2 Eq. 160).
This is a corollary of the general rule of law regarding waste,
which is thus stated by Coke. " A man hath land in which
there is a mine of coals or the like, and maketh a lease of the
land (without mentioning any mines) for life or for years ; the
lessee for such mines as were open at the time of the lease made,
may dig and take the profits thereof. But he cannot dig for
POWERS OF LEASING. 603
any new mine that was not open at the time of the lease made,
for that would be adjudged waste. And if there be open mines,
and the owner make a lease of the land, with the mines therein,
this shall extend to the open mines only, and not to any hidden
mine. But if there be no open mine, and the lease is made of
the land together with all mines therein, there the lessee may
dig for mines and enjoy the benefit thereof ; otherwise those
words should be void" (Co. Litt. 54 b).
*' The limited owner's privilege of working the minerals is
not confined in English law to open mines : it extends also to
such mines as are expressly mentioned in the grant or demise.
The reason of the doctrine is given in S(iiider\ cane (5 Hep. 12),
that inasmuch as the mine is open at the time, &c., and he (the
lessor) leases all the land, it shall be intended that his intent is
as general as his lease is : scil., that he shall take the profit of
all the land and by consequence of the mines in it. In Vincr v.
VduyJidn (2 Beav. 4G6), Lord Langdale thus expounds the
principle : — On the general law there is no controversy ; a
tenant for life has no right to take the substance of the estate
by opening mines or clay pits ; but he has a right to continue
the working of mines and clay pits where the author of the gift
has previously done it ; and for this reason, that the author of
the gift has made them part of the profits of the land. In an
earlier case {Phjniouth v. Archer, 1 B. C. C. 159) Lord Thurlow
lays it down that if a mine is already opened, the working of it
is part of the annual profits, and the minerals are not then held
to be part of the inheritance. There has been introduced into
the law (says Lord Watson in Cmnphell v. Wardhnc, 8 App. Ca.
650) this qualification, that if the owner of the soil, the fiar,
creates a mineral estate by working or letting a particular seam
of minerals, he thereby brings the proceeds of the minerals so
worked or let within the category of fruits and within the right
of usufruct " {per Boweu, L. J., in DdnJiivood v. M(t<iinac, (1891)
3 Ch. at p. 3G1 ; and see Stoughton v. Lii(j/i, 1 Taunt. 402;
Bich-eii V. Hamer, 1 Dr. & Sm. 284).
It is, however, a question of construction of the particular
power in each ease whether the mines to be demised are o^ien
mines only, or open and unopened alike.
<304 A CONCISE TREATISE ON POWERS.
In CIcgg v. Eou-Jand (2 Eq. 160), there was a conveyance to
trustees of lands together with the mines thereunder, and a
power to lease for fourteen years without mentioning mines,
"so as none of the said demises or leases were made dispunish-
able for waste." This power was held to authorize a lease of
open but not unopened mines.
Clause In BaJi/ V. Beckett (21 B. 114), lands with the mines and
rejected. minerals thereunder were convej'ed to trustees in strict settle-
ment, and power was given them to demise the hereditaments,
and the coal and minerals, &c., but so as the lessees should not
be made disj)unishable for waste. The Master of the Rolls
interpreted the power to be an express power to grant leases to
work unopened as well as opened mines ; but the terms of the
prohibition were such as to prevent the lessee from committing
waste, that is, from opening an unopened mine ; he therefore
concluded that there was so much contradiction in the clause
which imported prohibition against waste, that he rejected it
altogether ; (and see Morris v. Ii/i//(///(te/cd CoIUenj Company^ 3
H. & N. 473, 885 ; and Cnmj>hcU v. Leach, Ambl. 740 ; Re
Ridge, 31 Ch. D. 504).
It is to be observed, however, that tenant for life, impeachable
for waste, of estates which are settled " with all mines, &c."
cannot work unopened mines, although they are included in the
general words, and there are no open mines ( Whitfield v. Benet,
2 P. W. 240 ; and see Re Bcirrington, 33 Ch. D. 523).
What 13 an Where a mine or quarry has been opened for a restricted or
open mine. i • p i i
definite purpose, as to obtain luel or the means to repair a
particular tenement on the estate, that would not give a tenant
for life, or other owner of an estate impeachable for waste, the
right to work it for commercial profit. But when a mine or
quariy is once open, so that the owner of the estate imj)eachable
for waste may work it, the sinking of a new pit on the same
vein, or the breaking ground in a new place on the same rock,
is not necessarili/ the opening of a now mine or new quarry
[Elias V. Snoicdfjn Slate Co., 4 Ap. Ca. 454; Spencer v. Scurr,
31 B. 334; Clavering v. Clavering, 2 P. W. 388).
Disused mine. '\\niether a disuscd mine is an open or an unopened mine
appears to depend on the purpose for which the mine was
POWERS OF LEASING. 600
disused, and whether such disuser was intended to be permanent
or not ; (see Bagot v. Bagof, 32 B. 509).
As to the mode of working mines leased under a power, and
the weight to be attached to the custom of the country in deter-
mining it, see Jcgoii v. Vivian (G Ch. 742).
Where tliero is the ordinary power to lease mines and Produce of
minerals, the produce of the mines is made part of the annual to' tenaut f"^*
profits of the estate, and whetlier in royalties or in whatever
other way it is produced, it forms part of those profits, and is
not to bo treated like timber cut, where the produce of it is
invested, and the interest only paid to the tenant for life {Dalg
V. Beclxvtt, 24 B. 123). Wlierc, however, a testator having an
absolute power of ajipointment gave the surface of the land to
A., and the minerals to others, and under the Settled Estates
Acts a lease of minerals had been previously granted, and a part
of the rents reserved had been set aside and was in tlie hands of
trustees to be invested under the Acts in the purchase of other
lands, it was held that such rents were land and passed to A.
{Re Scarf h, 10 Ch. D. 499). It is the same with royalties on
open brickfields (Mil/er v. Mi//er, 13 Eq. 2(53). As to timber,
see Iloui/wood v. Ilonyicood, 18 Eq. 306 ; Danhwood v. JIagiiiac,
(1891) 3 Ch. 306; Dnhn v. Bn/an, 7 I. R. Eq. 143.
The Settled Land Act, 1882, contains the following provisions S. L. Act,
as to mining leases ; — "' ^'
"Sect. 9. — (1.) In a mining lease —
" (i.) The rent may be made to be ascertainable by or to vary
according to the acreage worked, or by or according
to the quantities of any mineral or substance gotten,
made merchantable, converted, carried away, or dis-
posed of, in or from the settled land, or any other
land, or by or according to any facilities given in that
behalf ; and
" (ii.) A fixed or minimum rent may be made payable, with
or without power for the lessee, in case the rent,
according to acreage or quantity, in any specified
period does not produce an amount equal to the fixed
or minimum rent, to make up the deficiency in any
606 A CONCISE TREATISE ON POWERS.
subsequent specified period, free of rent other than the
fixed or minimum rent.
" (2.) A lease may be made partly in consideration of the
lessee having executed, or his agreeing to execute, on the land
leased, an improvement authorized by this Act, for or in con-
nexion T\ith mining purposes,"
S. L. Act, " Sect. 10. — (1.) Wliere it is shown to the Court with respect
"' * ' to the district in which any settled land is situate, either —
'* (i.) That it is the custom for land therein to be leased or
granted for building or mining purposes for a longer
term, or on other conditions than the term or con-
ditions specified in that behalf in this Act, or in
perpetuity ; or
" (ii.) That it is difficult to make leases or grants for building
or mining purposes of land therein, except for a longer
term or on other conditions than the term and con-
ditions specified in that behalf in this Act, or except
in perpetuity ;
the Court may, if it thinks fit, authorize generally the tenant
for life to make from time to time leases or grants of or
affecting the settled land in that district, or parts thereof, for
any term or in perpetuity, at fee-farm or other rents, secured
by condition of re-entry, or otherwise, as in the order of the
Court expressed, or may, if it thinks fit, authorize the tenant
for life to make any such lease or grant in any particular case.
'* (2.) Thereupon the tenant for life, and, subject to any
direction in the order of the Court to the contrary, each of his
successors in title being a tenant for life, or having the powers
of a tenant for life under this Act, may make in any case, or in
the particular case, a lease or grant of or affecting the settled
land, or part thereof, in conformity with the order."
S. L. Act, <« Sect. 11. Under a mining lease, whether the mines or minerals
1882 B 11 <j '
leased are already opened or in work or not, unless a contrary
intention is expressed in the settlement, there shall be from
time to time set aside, as capital money arising under this Act,
part of the rent as follows, namely, — where the tenant for life
POWERS OF LEASING. 007
is impeachable for waste in respect of minerals, three fourth
parts of the rent, and otherwise one fourth part thereof, and in
every such case the residue of the rent shall go as rents and
profits."
This section does not apply to a mining lease granted by a
tenant for life for giving effect to a contract entered into by a
l^redeeessor who was absolute owner [Re Kcm)j.s-Ti/)dc, (1892) 2
Ch. 211).
And by s. 8 of the Settled Land Act, 1890, it is enacted as S. L. Act,
follows:- ''''''■'■
" In a mining lease —
" (i.) The rent may be made to vary according to the price
of the minerals or substances gotten, or any of them :
" (ii.) Such price may be the saleable value, or the price or
value appearing in any trade or market or other price
list or retiu-n from time to time, or may be the market-
able value as ascertained in any manner prescribed by
the lease (including a reference to arbitration), or may
be an average of any such prices or values taken
during a specified period."
14. The Settled Land Act, 1882, s. 6, anfe, p. 597, specifies What term
the periods for which leases may be granted. Apart from the
Act, if no term be mentioned, the general rules are as follows: —
When a power is added to a life estate, the
presumption is that the 230wer is different from
and in excess of that which would have arisen as
a mere accessory to the life estate [llele v. Green,
2 Roll. Abr. 261, pi. 10).
But the general intention to be gathered from the instrument
creating the power is the criterion.
In Vivian v. Jeff on (L. R. 3 H. L. 285), a testator devised
his estates to his daughter for life without impeachment of
waste, with remainders over. He gave her a power of leasing
for twenty years, and also a power to work or make a lease of
mines ; the profits were to be paid over by his daughter to the
60S A CONCISE TREATISE ON TOWERS.
trustees, and invested in land, tlio rents to be received by the
daugliter for life. This power was lield only to authorize leases
terminable with the daughter's life. The grounds of the
decision were, that the testator could not have meant to em-
power his daughter to make unlimited leases, amounting to
sales, of minerals, when he had carefully provided for the sale
of his estates generally by means of trustees ; the words " work
or lease," being placed together, were to be construed in pari
materia, and the power to work must have been co-extensive
with her life : the payment over by the daughter, the invest-
ment by her, and the payment of the rents to her, pointed to
the duration of her life, and the testator had clearly specified
the persons in remainder when he spoke of the power of
exchange which was to continue beyond the daughter's life, and
to be exercised with consent.
Indefinite An indefinite power of leasing will usually
kasing° allow of Icascs for any period, however long.
But in all cases, in order to determine what is the real
meaning of the words of the power itself, it is competent to
the Court to look to the whole instrument in which it is found,
and to examine and consider the consequences to the remainder-
man and to the other objects of the deed, for the purpose, if the
words be ambiguous, of adopting that construction of them
which may produce the least inconvenience and best harmonize
with all the other provisions which the parties have thought
proper to make {SJteehy v. MusJcerr//, 1 H. L. C. 576). In that
case the power was to lease all, every, or any part or parts, parcel
or parcels of the premises, for any time or term of years or lives,
and with or without covenants for renewal ; and in case of the
determination of all or any of the aforesaid lease or leases
respectively, to make nev/ or other leases thereof in manner
aforesaid, and with or without any fine or fines, as the donee
should think fit ; this power authorized leases for 999 years, with
fines; (see, too, Taylor v. Mosfij)), 23 Ch. D. 583 ; Re O'Brien,
3 I. E. Eq. 77). In A/f.-Gen. v. Jfoses (2 Madd. 294), a power
POWERS OF LEASING. ^^^
Wcas given by Act of rarliament to a vicar, with consent of the
vestrymen, to grant or demise certain waste ground as to them
should seem meet. A lease for 0i)9 years was uphold. There Exception to
is, however, an exception to the rule that indefinite leasing case of charity
powers will allow of leases for any term. In leases of charity ^'^^'^•
estates, the Court considers whether there has been a prudent
and provident execution of the trust, and if not, has held the
lessee to be a trustee {ibid. ; Att.-Gcii. v. Gntii, G Yes. 452). It
is in general laid down that when the trustees of a charity grant
a lease of the property for a longer duration than is ordinarily
consistent with its proper management, the lease will be set
aside, unless the persons taking imder it can show that it was,
under the circumstances, a reasonable transaction (Tudor, Char.
Trusts, 3rd ed. 260; AtL-Gen. v. Pihjnm, 12 B. 57 ; Atf.-Gai.
V. Rail, 16 B. 388 ; and see Charitable Trusts Act, 1855, s. 29 ;
Bi.sl/oj) of Bangor v. Parri/, (1891) 2 Q. B. 277).
If one hath power to make a lease for three lives or twenty- Power to lease
, ill j< • J. • 1 i. ^or three Uvea
one years, he cannot make a lease tor nmety-nme years deter- or years,
minable upon three lives ; but where the power is in the
beginning absolute, affirmative, and indefinite, and then a
proviso is added, so that such lease shall not exceed three lives
or twenty-one years, a lease for ninety-nine years determinable
upon three lives may be made {Whiflock^s case, 8 Eep. 69).
A power to 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, authorizes either a chattel
lease for years or a freehold lease for lives ; but not a lease for
ninety-nine years determinable on lives ; for that might exceed
twenty-one years {Eoc d. Bninc v. Prideaux, 10 East, 158).
In Long v. Ranhin (Sug. Pow. 895), the power was to demise
for any term or terms of years not exceeding thirty- one years,
or for one, two, or three lives, or for any term of years not
exceeding thirty-one years, or number of lives not exceeding
three lives. This was well executed by a lease for three Kves
and the survivor of them, or for thirty-one years, which should
louo-est continue. In this case the term did not exceed that
V R R
610 A CONCISE TREATISE ON POWERS.
authorized by the power ; (and see Commons v. Mardiall, 6 Br.
P. 0. IGS).
In Re Crommelin (1 Ir. C. L. 182), a power to lease for any
term not exceeding three lives and forty- one years was well
executed by a lease for three lives and forty-one years, com-
mencing from the 1st of November preceding the death of the
survivors of the three lives.
But where the power was to lease all or any part of the
premises then let on leases for lives to any person for a similar
term or estate, and at the same rents and under the same cove-
nants at and under which the leases were then held, and part of
the premises was let for two lives at the date of the creation of
the power, a lease for three lives was held bad {Jcnncr v. 3IorHs,
7 Jur. N. S. 385; 9 W. E. 566).
Po-wer to lease Inasmuch as onnic majus continet in se minus, a power to lease
auaionzcTa ^°^ twenty-one years will authorize a lease for any term of years
lease for a j^ot exceeding twenty-one. The tenant for life may exercise his
right to the utmost of his power, or he may stop short of that ;
and then every part of which he abridges himself will be for
the benefit of the next in remainder : he tlu-ows back into the
inheritance that portion which he did not choose to absorb for
his own use {Mencood v. Oldknow, 3 M. & S. 382). And he
that has power to make leases for three lives may make leases
for two lives ; in either case he may create a less interest, being
of the same nature, than the power mentions (Sug. Pow. 746).
When lease A power to lease for any term of years not exceeding twenty-
™^n*abie at ^^^ years authorizes a lease determinable at the option of lessor
lessee's qj. Jessce (Edicards v. Milbank, 4 Drew. 606 ; and cf. SheeJiy v.
option. ^
Musherry, 1 II. L. C. 589), although a contrary opinion has
been expressed in Ireland [Lowe v. Swift, 2 B. & B. 536 ; Jaek
Y. Creed,2ILvid. & Br. 128).
But if the power requires that the lease should be for a term
ahsohite not exceeding twenty-one years, a lease determinable at
the option either of lessor or lessee seems to be not within the
power (Sug. Pow. 738).
In Masker vy v. Chinnery (LI. & G^oo. 229), Lord St. Leonards
says : " Where the transaction is bond fide, and the terms of the
power do not reqidre the number of years to be absolute, I see no
POWERS OF LEASING. 611
reason for holding- tliat a clauso of surrender vitiates the lease.
Many i)owcrs do rcquii'o that the tenn to be granted shall he an
absolute one — that is, not dcfermiiiable.
A lease under a power to lease for lives must be for lives in Lease for
f'.s'.sr, and concun-ent; in Lord Kenyon's words, the candles must ^^^^"
be all burning at the same time {Doc d. Wyndhani v. Ilalcomhe,
7 T. E. 713). In Clark v. Smith (9 CI. & Fin. 126), the power
was for A. and all and every other person to whom any use was
thereby limited, to demise the lands for any number of lives or
years, consistent with their respective interests therein, in pos-
session, without fine, &c. This did not warrant a lease for
three lives, with a covenant to put in a new life on the failure
of any of the thi"ee, on pajTnent of a fine.
But a power to grant leases for two or more lives implies an
authority to grant them during the life of the survivor, although
the power is silent in that respect (Sug. Pow. 744 ; Alsop v.
Pine, 3 Keb. 44).
Defects of this nature — /. e., in respect of the duration of the
term — will fall within the provisions 12 & 13 Yict. c. 26, and
13 Yict. c. 17.
15. " Every lease shall be by deed and be made to take effect Leases in
in possession not later than twelve months after its date" (Settled reversion!
Land Act, 1882, s. 7, sub-s. 1 ; and see ante, pp. 591, 592).
A lease in reversion under such a power is not a good execu-
tion of the power (Sug. Pow. 752 ; Opy v. T/ioma'<iu-<i, 1 Lev.
167).
It appears not to have been expressly decided whether the
fact that the land is in lease at the date of the creation of the
power is sufficient to show an intention to permit the grant of
leases in reversion : but it seems to be the better opinion that it
would not (Sug. Pow. 749, 750, 764).
A lease in reversion is either a lease of a reversion on the wiiat is a
determination of a prior estate, or is a lease in fnturo. In the J^^*]
latter case, it may either be to commence at a future day, but
subject to the determination of a prior estate ; or it may be of a
reversion to commence on a future day simply, without reference
to any prior estate ; but, as a general rule, powers to lease in
R R 2
612
A CONCISE TREATISE ON POWERS.
Distiuction
between leases
in reversion
and leases
ill flit uro.
reversion are construed to mean leases to commence from tlie
determination of existing leases, and not leases to commence
generally at any future period.
There is an important distinction between leases of a rever-
sion and leases ill fiifuro. K eliattd lease {i, e., fov years) may
be granted pending a prior subsisting one, provided it be within
the limits of the power, and provided it give no beneficial
interest during the continuance of the subsisting lease ; but so
long as there is a subsisting _/)vy'/!oW lease in esse, a second free-
hold lease cannot be granted. The right of granting a second
chattel lease was settled in Ready. Nashe (1 Leo. 147), and is
recognized as law in Goodfifle v. Funucaii (2 Doug. 572) ; but a
second freehold lease cannot be granted, because it must be to
take effect in fnturo, and a freehold cannot be conveyed unless
it is to take effect i)t piwsenfi {per Lord Ellenborough, 10 East,
184; and cf. Jenner v. Morris, 7 Jur. N. S. 385; 9 W. E.
5GG).
Lord Holt says (1 Com. 39) that the expression to lease in
reversion has a different signification in the same conveyance,
when applied to leases for lives in reversion, from that which it
bears when applied to leases for years. For as a lease for lives
cannot, strictly speaking, be made to commence in futuro, it will
in that case be intended of a concurrent lease or a lease of the
reversion ; that is, of lands then in lease, to commence in pos-
session after the determination of the then existing lease, though
it commences in interest presently, and is concurrent with the
existent lease.
Leases in Leases in reversion under powers which allow only leases in
reversion not • i n i • • tt
withiui2&i3 possession, do not fall withm the provisions of 12 & 13 Vict,
and 13 Vict. ^' ^^j ^^^ ^^ Vict. c. 17, unless the donee of the power con-
*'• •^^- tinned in the ownership until he could lawfully grant such
leases (s. 4), and the lessee entered ; for the statute requires
(s. 2) that the lessee should have entered under his lease, and
this he could not do while his term was reversionary. But
it seems that a lessee who has given up an old lease, and con-
tinues in possession under a new one, has entered {Moffett v.
Lord Gowjh, 1 L. R. Ir. 331).
POWERS OF LEASING.
rii3
IG. " Every lease shall reserve the best rent that can reason- Best rent to
be rcscrvcxl
ably be obtained, regard being liad to any fine taken and to any
money laid out or to be laid out for the benefit of the settled
land, and generally to the circumstances of the case " (Settled
Land Act, 1882, s. 7, sub-s. 2 ; Re Chau-nor, (1892) 2 Ch. 192).
" A fine received on the grant of a lease under any power Fine, how far
. permissible,
conferred by the Act of 1882 is to be deemed capital money
arising under that Act" (Settled Land Act, 1884, s. 4). The
provisions as to the application of capital money are ss. 21 ct scq.
of the Act of 1882.
A tenant for life granting a lease under the Acts may there-
fore require the payment of a fine. This is contrary to the law
as existing independently of the Act, for the acceptance of a fine
is fatal to a lease under an ordinary power to lease at the best
rent. It is to be observed, however, that the fines taken by
lessors in such cases are retained by themselves for their own
benefit : the Acts pro\ade for the capitalisation of the whole of
the fines authorized by them. This appears unfair to the tenant
for life and therefore impolitic, because it will prevent the
taking of fines— a proceeding which appears not merely un-
objectionable but highly advantageous to landlords by securing
their rent. The fine is merely the piu'chase-money of the land
for a term of years {S/icp/icard v. Bcf/tam, G Ch. D. 597), paid
in advance instead of being spread over a number of years as
rent : the same principle, therefore, which is applied to the
purchase-money of leaseholds under the 34th section of the
Settled Land Act, 1882, and the 74th section of the Lands
Clauses Consolidation Act, 1845, would appear to be fairly
applicable to fines.
It must not be assumed, however, that a lessor imder an
ordinary power in a deed or will can justify the acceptance of a
fine by investing it as capital, and appropriating the income
only as rent. Even if the words usually found in such powers
("without taking anything in the nature of a fine or fore-gift")
could be construed as meaning " taking for his own exclusive
benefit," the cases hereafter mentioned show that such a lease
would be bad on other grounds.
614
A CONCISE TREATISE ON POWERS.
Criterion of
best rent.
Not necessa-
rily the
hiyliest.
Definition of
rent.
Distress by re-
maindennan.
Must be
reserved
specifically.
Tines.
17. The power usually provides for tlie reservation of tlie best
rent ; but, even without such a provision, a lease at an under-
value would probably be void, as not being within the intent of
the power.
There is but one criterion which our Courts always attend to
as a leading criterion in discussing the question whether the
best rent has been got or not ; that is, whether the man who
makes the lease has got as much for others as he has for himself.
If he has got more for himself than for others, that is decisive
evidence against him {Moufgomrrij v. JFemz/ss, 5 Dow. 293,344).
But the lessor is not bound to accept the person who offers
the highest rent {Dor d. Lairfon v. Radcliffe, 10 East, 278). In
that case the Court said that, where the transaction was fair and
no fine or other collateral consideration was taken by the tenant
for life leasing under the power, or injurious partiality shown
by him in favour of the particular lessee, there ought to be
something extravagantly wrong in the bargain in order to set it
aside on this ground ; for in the choice of a tenant there were
many things to be regarded besides the mere amount of rent
offered ; (and see Dyas v. Crime, 2 J. & L. 460).
Eent is defined by C. B. Grilbert to be an annual return made
by the tenant, either in labour, money, or provisions, in retri-
bution for the land that passes.
In Campbell v. Leach (Ambl. 740), and Basset v. BasHet {ibid.
843), ore was held analogous to money, and a good reservation
of rent ; but it may, perhaps, be doubted whether any but a
money rent could be safely reserved under the ordinary power
at the present day.
Rent reserved on a lease is rent properly speaking, and the
remainderman can distrain for it (Co. Litt. 214, a., citing
Ha)xourt v. Pole, 1 And. 273).
The best rent must be ascertained and specifically reserved :
it is not enough to follow the words of the power and reserve
"the best rent" {Orby v. Mohnn, 2 Vern. 531, 542). So, too,
if the ancient rent be required, it is not enough to reserve " the
ancient rent" {ibid.).
If a fine is taken, it is clear that the rent cannot be the best
POWERS OF LEASING. ^15
rent ; for however miicli it may be, the lessee would have given
more if ho had not had to pay the fine. And it seems that
taking a fine is contrary to a prohibition against diminishing
the rental of an estate {Montgomery v, Wemj/s-s, 5 Dow. 203).
18. Under a power to grant leases in possession, neither a Power to
lease in reversion expectant on the determination of an existing iu jjosscssion.
lease, nor a lease to commence simply in /iifto'c, can be granted.
If it be made to commence only a day after the deed creating
it, it is as fatal a variance from the power, at law, as if made to
take effect at the expii-ation of one hundred years from the time
(Sug. Pow. 752 ; Doc v. Calirrf, 2 East, 376). The rule is said
by Lord St. Leonards to bo tlie same in equity {ib. 760) ; but
this must be subject, it is submitted, to tlie qualifications sug-
gested above (p. 591, 592), and to the Acts 12 & 13 Vict. c. 26, and
13 Vict. c. 17; (and see Pollard v. Grceiiril, 1 Hep. in Ch. 98).
It seems that a lease for three years, and so from three years
to three years, makes but one term of six years (per Bridgeman,
C. J., 1 Lev. 46).
Although all leases, where there is a particular estate out, are
leases in reversion, it has been held that where there was a power
to grant leases in possession, but not by way of reversion or
future interest, a lease jx'r verba de 2)r(esenfi is not contrary to
the power, although the estate at the time of granting the lease
was held by tenants at will or from year to year, if at the time
they received du-eetions from the lessor to pay their rents to the
lessee {Goodfifle v. Faiiiiean, 2 Dougl. 565). The decision rested
on three grounds : (1) that the tenants agreed to the lease and
surrendered their possession before the execution of it, in order
to make it valid (Lord St. Leonards thinks this the true ground :
Pow. 762). (2) That if the jury had not found the defendant
to be in possession, still the lease would have been good as a
concurrent lease. (3) That all the subsisting leases were leases
at will ; there was no outstanding lease as against the remain-
derman : he would not have been bound to give the tenants
notice to quit, but might have entered upon them immediately.
In considering pai'ticular phrases, the principle laid do^^^l by Principle
Lord Manners in JDoirlii/f/ v. Foxall (1 B. & B. 196) should be fo^^ctfou ^
616
A CONCISE TREATISE ON PO^YERS.
of doubtful
phrases.
Surrender
may be
presumed.
remembered — tliat the Court in a doubtful case will reject that
construction by which a right would be divested or a forfeiture
incm-red.
Accordingly, a lease to take effect " from henceforth," or
" from the time of delivery," is a lease in possession, and shall
commence from the delivery, when no time is mentioned
{Clayton's case, 5 Eep. 1 ; Co. Litt. 46, b.) ; so, too, '' from the
day of the. date" {Piigh v. Duke of Leeds, 2 Cowp. 714), although,
in general, terms of years last during the whole anniversary of
the day from which they are granted (9 Ad. & E. 894).
As a deed takes effect from its delivery, not from its date, a
lease, which by its date purports to commence in fiituro, will be
supported if it be shown to have been delivered at such a time
as to make it take effect in possession. In Doe d. Cox v. Day
(10 East, 427), the lease was dated 17th February, 1802,
habendum from the 25th March then next ; but it was not
executed and delivered until the 27th April. It was held
good.
19. In order to support a lease as in possession a sm-render of
an existing lease has been presumed {GoodtUle v. Fanucan, 2
Dougl. 565 ; and cf. Lefroy v. WaM/, 1 Ir. C. L. E. 311) ; and
equity has reheved against the want of such a surrender
{Campbell v. Leach, Amb. 740). If the new lessee is himself
the tenant under the existing lease, his acceptance of the new
lease, if effectual, operates at law as a surrender of the old lease.
But the acceptance of a lease, purporting to be granted in
exercise of a power, but void for non-compliance with the terms
of such power, is not a surrender of a valid subsisting lease ;
for, if the surrender is intended for a particular purpose, and
that purpose — the only motive for it — fails, the surrender also
fails {Davison v. Stanley, 4 Burr. 2210 ; Wilson v. Seicell, ib.
1974; Zouch v. Parsons, 3 ih. 1794; Roe v. York, 6 East, 86).
And the rule is the same where the surrender is made by the
act of the parties and not merely by operation of law, if it
appear clearly that the parties intended that the surrender
should be made in consideration of the new lease, and should
be conditional on the non-avoidance of such new lease {Doe d.
rOWEKS OF LEASING. G17
Egremont v. Courfciinij, 11 (i. B. 702, 712, overruling to some
extent Doc d. JEgir/Nouf v. Fonvood, -3 Q. B. G27). The fore-
going statement applies only to a new lease of the premises
commencing at once : a new lease of the premises for a further
and additional term after the subsisting term is of course rever-
sionary {Dor V. Cfirfrr, 5 T. E. oG7 ; Br. P. C. 175; and see
Doc V. Ca/mi, 2 East, 376; Hoc v. Pridcmu; 10 East, 158).
20. If the new lessee has granted underleases during tlie ^ ^^o- 2,
term whicli he surrenders, it is submitted that the provisions of
4 Geo. II. c. 28, s. G, give validity to the new lease, notwith-
standing the continued existence of outstanding underleases.
That section provides as follows : —
"And whereas many persons hold considerable estates by
leases for lives or years, and lease out the same in parcels to
several undertenants : And whereas many of those leases cannot
by law be renewed ■without a surrender of all the underleases
derived out of the same, so that it is in the power of any such
undertenants to prevent or delay the renewing of the principal
lease, by refusing to surrender tlieir underleases, notwithstanding
they have covenanted so to do, to the great prejudice of their
immediate landlords, the first lessees. For preventing such
inconveniences, and for making the renewal of leases more easy
for the future, be it enacted, that in case any lease shall be duly
surrendered in order to be renewed, and a new lease made
and executed by the chief landlord or landlords, the same new
lease shall, without a surrender of all or any the underleases, be
as good and valid to all intents and purposes as if all the under-
leases derived throughout had been likewise surrendered at or
before the taking of such new lease, and all and every person
and persons in whom any estate for life or lives, or for years,
shall from time to time be vested by vii'tue of such new lease,
and his, her, or their executors and administrators, shall be
entitled to the rents, covenants and duties, and have like remedy
for recovery thereof, and the underlessees shall hold and enjoy
the messuages, lands and tenements in tlie respective underleases
comprised, as if the original leases, out of which the respective
underleases are derived, had been still kept on foot and con-
618
A CONCISE TREATISE ON POWERS.
Power to
grant leases
in possession
and in rever-
tinued, and the chief landlord and landlords shall have and be
entitled to such and the same remedy, by distress or entry in
and upon the messuages, lands, tenements and hereditaments
comprised in any such underlease, for the rents and duties
reserved by such new lease, so far as the same exceed not the
rents and duties reserved in the lease out of which such under-
lease was derived, as they would have had in case such former
lease had been still continued, or as they would have had in
case the respective underleases had been renewed under such
new principal lease, any law, custom or usage to the contrary
hereof notwithstanding."
And as to the power of the Court to protect underlessees on
forfeiture of the superior leases, see Conveyancing Act, 1892,
ss. 4 and 5.
If the power is to lease for a given number of years, without
specifying any period of commencement, the term ought to
begin at once and not in fiituro {Lcapcr v. Wrof//, 6 Eep.
33, a. ; Ladi/ Sussex v. Wroth, Cro. Eliz. 5 ; Leslie v. Crommclin,
2 I. R. Eq. 134) ; although it will of com^se be otherwise if
an intention to allow leases in reversion can be collected from
the terms of the instrument creating the power {Corcnfr// v.
Coventry, Sug. Pow. 753).
21 . It has been said that a power to grant leases in reversion
as well as in possession does not authorize a lease in possession
and another in reversion of the same land ; but that the power
to grant leases in reversion must be confined to such parts of
the land as were not then in possession (1 Com. 39). But this
seems open to question ; for, if under such a power a lease be
granted in possession, and a year, or even a week after, another
lease be granted to commence after the expiration of the former,
this would be within the power ; and if so, there appears to be
no reason why the two should not be granted together (Shep.
Touch. 270 n.).
In Doe d. Sutton v. Harvey (1 B. & C. 426), the donee of a
power of leasing, either in possession or immediately on the
determination of leases then subsisting, granted two leases of
the same premises, both executed on the same day ; the one
POWERS OF LEASING. 61!)
dated 4th May, 1787, habemlmn for thirty years from 1791 when
an existing lease expired ; the other dated 4th June, 1787,
habendum for sixty-three years from 1821. A smaller rent was
reserved on the second lease in consideration of a covenant to
rebuild by the tenant. This lease was held bad, but on the
groTind that it was a bungling contrivance to throw the cost of
rebuilding on the remainderman.
22. It seems the better opinion that concurrent leases — that Concurrent
is, leases to commence in prwucnti, but only taking effect in
possession after the determination of a subsisting lease — are not
leases in possession.
In a note to Sheppard's Touchstone, 8th ed. 270, the learned
editor says : "Under a power which requires that leases under it
should bo granted in possession, it is not sufficient, it is con-
ceived, that the term is made to commence in prmenti or
immediately ; but in order to constitute a lease in possession
within the true meaning of the power, the lessee should have
immediate possession of the property. There are, however,
authorities which countenance the opinion that, if the term is
made to commence immediately, the lease will be good, not-
withstanding there may be a prior lease in existence." In
Goodtitic V. Funucan (2 Dougl. 565, ante, p. 615, 2nd point). Lord
Mansfield said : "For this. Head v. Naahe (1 Leon. 148), was cited,
where under a proviso to grant leases only for twenty-one years
a lease had been granted in 4 Ph. & M. for twenty-one years,
and afterwards (18 Eliz.), a year before the expiration of that
lease, another was granted of the same premises for tAventy-one
years to begin presently, and it was held that the second lease
was good. The reason given is a strong one — viz., that the
inheritance was not charged in the whole with more than
twenty-one years. No authority was cited against this case,
nor any answer given against the reasoning in it." Lord St.
Leonards, liowever, points out that the case was not decided on
this point ; for after the first lease was granted, a fine was levied,
and it was determined that it was a forfeiture by the tenant for
life, and therefore the second lease was void. And see his
argument against concurrent leases (Pow. 768 — 777).
620 A CONCISE TKEATISE ON POWERS.
Moreover, if tlie best rent were required to be reserved, and
the rent reserved by tlie concurrent lease is greater than that
reserved by the prior lease, this is on the face of it evidence that
the rent is not the best ; for if the concurrent lessee pays money
out of pocket before he comes into possession (as he must do if
he pays more than he receives from the lessee in possession),
such payment is in the nature of a fine ; if he had not had to
pay it, he would clearly have given a higher rent.
In Davidson, v. 279, a form is given of a concurrent lease
granted under a power which authorized the reservation of an
increased rent to commence in fafuro. It is there said (281 n.),
that it admits of considerable doubt whether a reservation of
rent of this nature would not invalidate a lease granted in
pursuance of the ordinary power requiring the best rent to be
reserved, as upon the very face of the lease it would appear that
the best rent was not reserved from the commencement of the
term ; and that where, in the absence of special authority, the
concm-rent lease reserves an increased rent co-extensive with the
term granted, the proper course to adopt appears to be, to
reserve the maximum rent in the first instance, and to add
a proviso tliat, during the continuance of the original lease,
the excess only should be receivable under the concurrent
lease.
Surrender of 23. Apart from the Settled Land Acts it is difficult to say
exis ing ease. ^^^^ ^^^ ^^^^ ^^^^^ ^^ obtained if the lease is granted in con-
sideration of the surrender of an existing beneficial lease, for
the rent must be diminished to the extent of the value of the
surrendered lease. But if the lease were at a rack rent, the
same objections would not arise (Sug. Pow. 787 ; and see Be
Rmdiu^, 1 Eq. 286).
The 7th section of the Settled Estates Act, 1877, authorizes
the surrender of leases either for the purpose of obtaining a
renewal of the same or not, and extends the power given by the
Acts to all or any part of the surrendered i)remises. It is con-
ceived that this section, although general in terms, applies only
to surrenders for the purposes of the Act. But if this is not so,
the power can hardly extend to more than the authorization of
rOWEK.S OF LEASING. C'^l
a comploto legal suiTondor, and cannot alter the moaning of a
power to lease at the best rent.
Under the Settled Land Act, 1882, the tenant for life has S. L. Act,
wider powers. Tlio i;3th section of that Act provides that : — > • •
*' (1) A tenant for life may accept, with or without considera-
tion, a siUTcnder of any lease of settled land, whether made under
this Act or not, in respect of the whole land leased, or any part
thereof, with or without an exception of all or any of the mines
and minerals therein, or in respect of mines and minerals or any
of them.
" (2) On a surrender of a lease in respect of part only of the
land or mines and minerals leased, the rent may be apportioned.
" (3) On a surrender the tenant for life may make of the
land or mines and minerals surrendered, or of any part thereof,
a new or other lease, or new or other leases in lots.
*' (4) A new or utlicr lease may comprise additional land or
mines and minerals, and may reserve an apportioned or other
rent.
" (•")) On a surrender, and the making of a new or other lease,
whether for the same or for any extended or other term, and
w^hether or not subject to the same or to any other covenants,
provisions, or conditions, the value of the lessee's interest in the
lease surrendered may be taken into account in the determina-
tion of the amount of the rent to be reserved, and of any fine to
be taken, and of the nature of the covenants, provisions, and
conditions to be inserted in the new or other lease.
" (6) Every new or other lease shall be in conformity with
this Act."
And by s. 31, sub-s. 1 (iv.), it is provided that " a tenant for S. L. Act,
life may accept a surrender of a contract for a lease, in like "' ^'
manner and on the like terms in and on w^hich he might accept
a surrender of a lease ; and thereupon may make a new or other
contract, or new or other contracts, for or relative to a lease or
leases, in like manner and on the like terms in and on which he
might make a new or other lease, or new or other leases, where
a lease had been granted."
It has been suggested that the consideration authorized by
622 A CONCISE TREATISE ON POWERS.
s. 13 may be payable by or to the tenant (Hood and Cliallis,
p. 283) : but it seems rather a perversion of language to say
that a tenant for life who pays a lessee to go out " accepts with
consideration a surrender " of his lease. And the Act contains
no provision for raising the consideration money, if payable by
the lessor. The Act also omits to provide for the destination of
the consideration paid by the lessee ; and it appears the better
opinion on the construction of the Act that it must be treated
as capital money, although, in justice, the tenant for life ought
to be entitled to apportioned payments under s. 34 {ante, p. 613).
Covenant to 24. Apart from the Settled Land Act, 1882, which expressly
i^^imprme-^"'' providcs that the best rent is to be reserved, " regard being had
ments. ^q r^-^j money laid out or to be laid out for the benefit of the
settled land " (s. 7, sub-s. 2, and see ss. 8 and 9), it seems that
improvements by the tenant, or a covenant to lay out money
on improvements, will not authorize a lease at less than the best
rent {Hoc d. Bevkeleij v. Arc//bis/iop of York, 6 East, 86). And
if any consideration is given by the tenant over and above the
rent, the inference is strong, but not necessarily irresistible, that
without the fui-ther consideration he would have given more
rent. For the purposes of stamp duty, it has been held that a
covenant to complete houses is " a further or other valuable con-
sideration " besides the rent within 17 & 18 Vict. c. 83, s. 16 {Ec
Bolton, L. It. 5 Ex. 82 ; but see now Stamp Act, 1891, s. 77).
But this is not conclusive, because it may well happen that the
buildings on a farm are so insufficient or defective that no tenant
would take the property at any rent unless he is authorized to
build or rebuild as the case may require. In Shannon v. Brad-
street (1 S. & L. 52) Lord Eedesdale thought that such improve-
ments, or covenant to layout money as above mentioned, would not
be sufficient to avoid the lease, if the rent were the best that could
be got, that is to say, tliat the covenant to lay out money on
improvements did not necessarily show that the rent was less
than could have been obtained. As to this. Lord St. Leonards
says (Pow. 780) that although the rent reserved be the full value
of the land, yet if satisfactory evidence could be produced to a
jury that a tenant was willing to give an additional rent in lieu
POWERS OF LEASING.
P.23
of the money agreed to be laid out in improvements, the lease
could not bo supported. It would not bo the best rent that
could have been obtained. In these cases, it is not necessary
that there should be fraud and collusion between the lessee and
the tenant for life. The simple question is. Is the rent the best
rent ? If it be not, the lease must fall to the ground, however
fair the transaction ; (and see Doe d. Griffitha v. Lloyd, 3 Esp. 78).
In Doe d. Bro)nl<i/ v. Bcttmn (12 East, 304), a lease was
upheld, although the lessor imdertook the repairs of the
mansion-house, and covenanted that if he did not repair within
three months after notice, the tenant miglit do so and deduct
the expenses from the rent ; and although the lessor covenanted,
in consideration of a large sum to be laid out by the lessee in
repairs, to renew on the same terms. As to the first objection :
if the tenant is to keep the premises in repair, the rent is so
much less ; if the landlord be to repaii', the rent is so much
greater. It was a question for the jury whether, taking into
consideration the repairs to be made by the landlord, the rent
was a fair one.
In Price v. AsHheton (1 Y. & 0. Ex. 82), Lord Lyndhurst said
that another question of some nicety arose, namely, whether,
although money was to be laid out by the lessee, and the rent
to be estimated by the valuers without reference to the mone}^ so
to be laid out, that was within the terms of the power ? Prima
facie, a rent so reserved is not an improved rent ; but in that
case it was stipulated that the improvements should be made by
the tenant, in consideration of the new lease. lie also said
during the argument, " If it be worth the tenant's while to
pay rent and also to make improvements, it shows that the
rent taken by the landlord is not the most improved rent;" (and
see Doc d. Rogers v. Rogers, 5 B. & Ad. 755).
25. A power which required the reservation of a fixed rent Rent and
and a heriot, and of a condition for re-entry for breacli of cove- condition for
nants, was held not weU exercised by a lease which reserved a ^<^"°"*^7-
much larger rent but no heriot, and contained no condition for
re-entry {Doc d. Lord Egmont v. Helliugs, 6 Jur. 821, and Dud.
Lord Egremont v. Grazehrook, 4 Q. B. 40G).
624
A CONCISE TREATISE ON POWERS.
Usual rent.
Ancient rent.
Rent should
be uniform.
Altliougli, perlicaps, " usual " may in most cases be equivalent
to "most " (4 M. & S. 378), it will be otherwise if it be used in
contra-distinction to " best " or " most."
In Doe d. Neicnham v. Creed (4 M. & S. 371), a testator gave
A. a power of leasing lands in Sussex for twenty-one years at
tlie most rent, and lands in Middlesex for sixty-one years at the
usual or other the most rent. At the testator's death, the pro-
perty in Middlesex was let at a small rent, a fine having been
taken. It was held that A. might demise it at a slightly higher
rent, taking a fine. In this case there were two descriptions
of property — that Avliich lay in Sussex, for which the testator
provided that the most rent should be reserved, as upon an
agricultiu-al lease ; and that which lay in Middlesex, for which
the usual or other the most rent was to be reserved. This was
intended to secure the remainderman as much as before, but
also to allow the lessor to take a fine ; for this had been done
before. Importance was also attached to the variation of phrase
in the same instrument as to the reservation of rent.
Powers used formerly to require the reservation of the ancient
rent : this is now seldom, if ever, done. Where such a term is
introduced, the better opinion is that, as a general rule, the rent
reserved at the time of the creation of the power, where a lease
was then in being, or the last before it, where no lease was then
in being, is the rent to which the power must be taken to refer
(Sug. Pow. 790 ; and Doe d. Douglas v. Loch, 2 A. & E. 705 ;
Eoe d. Bnme v. Rauliiujs, 7 East, 279 ; Doe d. Lord Egremont
V. Grazehrool; 4 Q. B. 406). In Doe d. Biddulph v. Hole (15
U. B. 848) it is laid down that, although the latest lease pre-
ceding the creation of the power is entitled to greater weight
than any single earlier lease, and ought to govern the decision
when there is a balance of evidence, yet when the ancient
custom appears to have been uniform, and a single lease varying
therefrom was granted just before the creation of the power, the
exceptional lease ought not to govern merely because it is the
latest.
But whatever rent is reserved should be reserved during the
continuance of the whole term at an uniform rate. In Doe d.
POWEPtS OF LEASING. 625
Sxffo}} V. JIarroy (1 B. & C. 42 G), the donee of a power of
leasing wliich required tlie reservation of the best rent, demised
for two terras at one and the same time, the first for thirty years
from 1701, the other for sixty- three years from 1821 : the rent
reserved on the first lease was 270/. per annum, that on the
second was 120/., but it contained a covenant to rebuild. The
lease was held bad, partly on the ground before mentioned, that
a lease in possession and a lease in reversion of the same
premises could not be granted at the same time, but chiefly
because the best rent was not reserved tlu'oughout the term
granted by the second lease; (and see Momifjoifs Ca^e, 5 Rep. 4,
s. 6).
Eent now accrues from day to day, and is apportionable in
respect of time accordingly (3-3 & 34 Vict. c. 35). Before that
statute it was to the advantage of the remainderman that the
rent should be reserved at long intervals, as he thereby had the
chance of obtaining the rent which accrued during a period
when the tenant for life had been in possession. It was, how- Yearly rent,
ever, determined that a yearly rent might be reserved and made
payable yearly, half-yearly, or quarterly. It means a rent
payable within each year, not merely payable at the end of
each year : in every year, as long as the lease endures, a yearly
rent is to be reserved and made payable. This was decided in
Rutland v. Wythe (10 C. & F. 419), where the Lords concurred
in the opinions of the majority of the judges and upheld a lease
for twenty-one years, from 11th October, 1833, at the yearly
rent of 903/., payable by half-yearly payments on the 6th April
and 11th October in each year, except the last half-year's rent,
which was thereby reserved and agreed to be paid on the 1st
August next before the determination of the said term. The
provision was clearly a reasonable one, and was within the terms
of the power; (and see Doe d. Lord Shrctcshury \. Wilson, 5 B. &
Aid. 3G3 ; Fryer v. Coomh.^, 11 A. & E. 403). Baron Bolfe in
Rutland v. Wythe (10 CI. & F. 432) said that a lease in which each
year's rent is reserved on the first day of the year wuuld be
within the power, if a jury could find, what they had found in
that case, but perhaps could not in the case suggested, that tlie
G'26
A CONCISE TREATISE ON POWERS.
Half-year]}'
rent.
Payment in
advance.
Incident to
the reversion.
rent so reserved was the best rent that could be reasonably
obtained (Sug. Prop. H. of L. 502) ; and in Booth v. A' Beckett
(9 L. T. N.S. 68 (P. C.)) where, under a power which required
the reservation of the best yearly rent without fine, a lease was
granted for twenty-one years at a yearly rent, but five years'
rent was to be paid in advance, the lease was held bad.
As a yearly rent must be reserved and made payable in every
year- of the term, so a half-yearly rent must be reserved and
made payable in every half-year of the term : and moreover, it
seems that such a rent must be reserved at equal half-yearly
intervals, or, at all events, on days which by the custom of the
country are treated as half-yearly days of payment {Doe v. Morse,
2 C. & M. 247). In that case the term commenced on the 4th
of January, and the rent was payable on the 1st of May and
the 29th of September in each year : this was held bad, on the
ground that the inequality of the intervals between the payments
might have been injurious to the remaindermen.
And not only may the last half-year's rent be made payable
in advance, as in Rutland v. Wythe, but a stipulation that the
first half-year's rent, which is reserved on fixed days throughout
the term, should be paid on the fii'st of such days, is good,
although a full half-year will not have then elapsed.
In Isheru-ood v. Oldhuow (3 M. & S. 382), a yearly rent was
required to be reserved ; the lease was granted on the 15th of
October, and by stipulation of the parties, payment of a half-
year's rent became due on the 11th November following: this
was upheld ; (and see Doe d. Ilopkiimn v. Ferraud, 20 L. J. C. P.
202 ; Doe v. Wikon, 5 B. & Aid. 3G3).
20. The power usually provides that the rent shall be incident
to the immediate reversion ; but it is not necessary in order to
fulfil this requirement, that the reservation should be expressly
to the tenant for life and after his death to the person or persons
entitled to the reversion and inheritance of the premises under
the instrument creating the power. Por the lease has not its
essence from the estate of the lessor, but from the instrimient
out of ^\hich the lessor's estate is derived, and in construction of
law it precedes the estate for life and all the remainders ; for
POWERS OF LEASING. 627
after the lease made, it is as much as if tlie use had been
originally limited to the lessee for a term, and then the other
limitations in construction of law follow it ( Wliithjch'.s case, 8
Eep. 71, b.). The reservation, therefore, is the creature of the
power, and transferred with the subsequent limitations; it is
virtually made by the person out of whose estate the power was
first created, and virtually the assignment comes from him ; it
is not strictly an assignment from the person wlio signs the
lease, but from the person out of whose estate the lease was to
have its essence and operation (3 M. & S. u9G).
Thus, when tlie lessor reserves rent to himself and liis heirs, Reservation
PI 1 J.1 ^'^ lessor and
it IS good ; for tliat, by construction or law, precedes the hLs heirs ;
limitations of the uses, and then it being well reserved, it is
well transfeiTcd to everyone to whom any use is limited {W/iit-
loch^ti ca.sc, 8 Hep. 71, b.).
So if the reservation be to the lessor and to every person to To lessor and
whom the inheritance or reversion of the premises shall apper- to whom the
tain during the term, that is like^^ise good, for the law will H^l'"'''' ""^^
distribute it to everyone to whom any limitation of the use shall
be made {ihid.).
But the most clear and sure way is to reserve rent yearly
during the term, and leave the law to make the distribution
without an express reservation to any person [ihid.).
In Gnrminiij v. ILirt (14 C. B. 340), lands were limited to
such uses as A. should appoint, and in default to the use of B.
in trust for A. A. granted a lease by means of his power,
reserving rent to himself, his heu^s and assigns ; the rent and
power of re-entry were held well reserved to the person entitled
to the legal remainder expectant on the lease. It is there
said : — " If a person seised in fee settles his estate on himself
for life with remainders to other persons, reserving a leasing
power, which he afterwards exercises, reserving rent to himself,
his heirs and assigns, those in remainder shall have the rent.
So also where a person seised in fee, settles his estate on A. for
life with remainders over, and gives him a leasing power, which
he exercises, reserving rent during the term to himself, his heirs
and assigns, the remainderman shall take it, although neither
ss2
628 A CONCISE TREATISE ON POWERS.
lieir nor assign of A. ; according to some authorities, because the
reservation of rent dming the term woidd give it to him, and
that which folloAvs shall not prejudice ; according to others,
"because assigns shall he construed assigns of the party creating
the power, out of whose estate the power is supposed to
emanate."
In FiOf/crs v. Humphreys (4 A. & E. 299), lands were limited
to the use of two mortgagees for 1,000 years, with remainder to
A. for life ; with remainder to a trustee for 2,000 years, with
remainder to such uses as B. should appoint, and in default to
B. for life, with remainders over : a power was given to A. to
lease for ten years from the date of the deed, or for seven years
from her death. A. demised to a lessee for seven years from
the date of her death, reserving rent to B. or the person for the
time being entitled to the freehold or the inheritance of the
premises immediately expectant on the death of A. This lease,
being made under a power created by the deed of settlement,
was to be deemed contemporaneous with the term of 1,000 years
created by the same deed, and was binding on the mortgagees ;
and those mortgagees, although not entitled to the freehold or
inheritance, were held to be the reversioners entitled to the rent
reserved by the lease, and to distrain for it ; (and see TanlccrviUe
V. Wiugfichl, 7 Price, 343, n., 3 Bligh, 331, n., 2 Brod. & B.
498, n.).
On the other hand, in' Yellowly v. Goicer (11 Ex. 274) the
limitations were to the use of trustees for 500 years, and subject
thereto to the use of the settlor for life with remainders over,
and there was a power reserved to the settlor to lease by deed,
either refening or not referring to the power, for twenty-one
years in possession and not in reversion, reserving the best rent
to be incident to the immediate reversion. The settlor, without
referring to his power, but in accordance with it, leased for
twelve years, reserving rent to himself, his heirs and assigns.
The lease was held bad, one ground being that the rent ought
to have been made incident to the immediate reversion, but the
lease reserved it to the lessor, his heirs and assigns, and the
lessor had no legal estate in possession, and therefore no legal
reversion, but simply a legal estate in remainder after the term.
POWERS OF LEASING. 629
If tho power had been recited in the lease, that would have
shown tliat it was meant to ho according to the jiower ; (hut see
C(ere\s case, G Reix 17 ; and UohertHOii v. Walher, 2-3 W. R. 224).
Lord St. Leonards disapproves of Ydlon-hj v. Goinr; see, too,
Davidson (iii. 497 r/'.srr/.), where it is said tliat in every case of a
lease under a legal power to apjjoint the use, tho question wliether
the lease is a good exercise of the power is in necessary con-
nection with that, whether the rent is incident to the immediate
reversion ; whenever tlie lease is an exercise of the power, the
rent follows tho reversion, and on tlie otlier hand, if the rent is
not well annexed to the reversion, the reason must be that the
lease is abortive and the remainderman not bound; (and see
Jeu'c/'.s case, Eep. 3, and Conveyancing Act, 1881, ss. 10, 11
and 12).
27. The right to re-enter for non-payment of rent or non- Right to re-
performance of covenants, and the right to sue on covenants sSfra covl^
entered into by the lessee, follow the same nilc and pass to the °^^*^-
persons entitled to the reversion on the same principles {Ilotley
V. Scott, 3 Bligh, 331, n. ; Lshenvoody. Ohlkiwu;^ M. & S. 382;
Greenawaii v. Hart, 14 C. B. 340 ; Ba>^sct v. Basset, Amb. 843 ;
Maundi'cU Y. MaiouJrcU, 10 Yes. at p. 256).
It has been said that a proviso for re-entry on non-payment
of rent is, but on breach of any other covenant is not, an usual
or customary clause {lIodejkin-sOH v. Croice, 10 Ch. 622). The
decision in that case was confined to a mining lease, but James,
L. J., said, "A clause for re-entry for non-payment of rent is
alwaj's inserted without opposition by anybody. It has never
been disputed by any tenant, because both at law and in equity
the lessee can be relieved from the forfeiture by payment of his
rent after the period of forfeiture has arrived, just as a mort-
gagor can redeem his estate, though the time fixed for
redemption by the mortgage deed has passed; so that the
proviso only operates as a penalty. A clause of re-entry for
breach of covenants generally, where, as there are no means of
ascertaining the compensation, a court of equity cannot relieve,
stands on quite a different footing." This decision was before
the Conveyancing Act, 1881 ; but it has been held that that
630 A CONCISE TREATISE ON POWERS.
section does not afFect the principle there stated; (see Re Anderton
and 3fil»er, 45 Ch. D. 476).
Accordingly, the Settled Lcand Act, 1882, provides (s. 7,
suh-s. 3) only that " every lease shall contain a covenant by the
lessee for payment of the rent, and a condition of re-entry on
the rent not being paid within a time therein specified not
exceeding thirty days." The Settled Estates Act, 1877 (s. 4),
requires that every lease granted thereunder shall contain a
condition for re-entry on non-payment of the rent for a period
of twenty-eight days after it becomes due, or for some less
period to be specified in that behalf.
Relief against The power of lessors to re-enter and forfeit their lessees'
under Conv. interests is now qualified by the provisions of the Conveyancing
Act, 1881. ^^^^ jggj^ g^ 24^ ^.y^l^ gj^^^^g ^g fQ^Q^ ._
" (1.) A right of re-entry or forfeiture under any proviso or
stipulation in a lease, for a breach of any covenant or condition
in the lease, shall not be enforceable, by action or otherwise,
unless and until the lessor serves on the lessee a notice specify-
ing the particular breach complained of, and, if the breach is
capable of remedy, requiiing the lessee to remedy the breach,
and in any case requiring the lessee to make compensation in
money for the breach, and the lessee fails, within a reasonable
time thereafter, to remedy the breach, if it is capable of remedy,
and to make reasonable compensation in money, to the satisfac-
tion of the lessor, for the breach.
" (2.) Where a lessor is proceeding by action or otherwise to
enforce such a right of re-entry or forfeiture, the lessee may, in
the lessor's action, if any, or in any action brought by himself,
apply to the Court for relief; and the Court may grant or
refuse relief as the Court, having regard to the proceedings and
the conduct of the parties under the foregoing provisions of this
section, and to all the other circumstances, thinks fit ; and in
case of relief may grant it on such terms, if any, as to costs,
expenses, damages, compensation, penalty or otherwise, in-
cluding the granting of an injunction to restrain any like
breach in the future, as the Court, in the circumstances of each
case, thinks fit.
POWERS OF LEASING. ^^^
" (3.) For the purposes of tlu8 section a lease includes an
original or derivative underlease, also a grant at a fee-farm rent,
or securing a rent by condition; and a lessee includes an
original or derivative underlcssee, and the heirs, executors,
administrators, and assigns of a lessee, also a grantee under
such a grant as aforesaid, liis heirs and assigns ; and a lessor
includes an original or derivative under! essor, and the heirs,
executors, administrators, and assigns of a lessor, also a grantor
as aforesaid, and his heirs and assigns.
" (4.) This section applies although the proviso or stipidation
under which the right of re-entry or forfeiture accrues is inserted
in the lease in pursuance of the directions of any Act of Parlia-
ment.
" (5.) For tlie purposes of this section a lease, limited to
continue as long only as the lessee abstains from committing a
breach of covenant, shall be and take effect as a lease to continue
for any longer term for which it could subsist, but determinable
by a proviso for re-entry on such a breach.
" (6.) This section does not extend : —
" (i.) To a covenant and condition against the assigning,
underletting, parting with the possession, or disposing
of the land leased ; or to a condition for forfeiture on
the bankruptcy of the lessee, or on the taking in
execution of the lessee's interest ; or
" (ii.) In case of a mining lease to a covenant or condition for
allowing the lessor to have access to or inspect books,
accounts, records, weighing machines or other things, or
to enter or inspect the mine or the workings thereof."
But the lessee cannot apply after the landlord has re-entered
(Rogers v. Hico, (1892) 2 Ch. 170).
And now by the Conveyancing Act, 1802, s. 5, "lease and
underlease in s. 14 are extended to an agreement for a lease or
underlease where the lessee or underlessee has become entitled
to have his lease granted : and underlessee includes any person
deriving title from an underlessee."
Before tlie Act of 1892 an agreement for a lease was held Agreement
not to be a lease within the meaning of this section {Sirnin v. •,^-ithin sec-
A//rcs, 21 Q. B. D. 289), at any rate, unless the lessee would *'''°'
632 A CONCISE TREATISE ON POWERS.
be entitled to specific performance {ihid. ; and see Coafsirort/i v.
. Jo/nmn, 55 L. J. Q. B. 220 ; Fo.^fcr v. Eceres, 1892, 2 Q. B.
255). The compensation for 'breacli of covenant wliicli a lessee
is liable to pay under the 1st sub-s., does not include tlio lessor's
costs of employing a solicitor and surveyor in respect of the
preparation of the notice required by that section {Skinners' Co.
V. Kniglif, (1891) 2 Q. B. 542; but see, now, Conv. Act, 1892,
s. 2) ; and the notice need not require compensation in money
{Lock V. Fcarce, (1892) 2 Ch. 328).
Condition on As to the condition for re-entry on non-payment of rent,
of'Jenr"''"^ Lord St. Leonards (Pow. 822) says that where the power is
silent as to time and conditions, a reasonable time and circum-
stances may be introduced into the clause of re-entry; and
although the express mention in the power of a time prevents
further time from being allowed, it does not prevent the intro-
duction of a reasonable qualification into a clause of re-entry.
TrtTiere power T^^s, in Smith V. Lord Jcrsei/ (3 Bli. 290), the power was
is silent. . . ^ ^ t L^ i. i
silent as to time and conditions, and it was held that a lease
for lives was well granted containing a power of re-entry if the
rent should be behind for fifteen days and no sufficient distress
could be had on the premises. In Boc d. Lord Skreicshuri/ v.
Wilson (5 B. & Aid. 363), the power required that leases made
under it should contain a condition of re-entry on non-payment
of rent : the lease reserved rent payable on fixed days, and
provided that if the rent should not be paid on those days, the
lessor might enter and distrain, and the distress take away and
keep until the rent should be satisfied ; and also, that if the
rent should be unpaid for twenty-eight days after it became
Distress after ^^q being lawfully demanded, the lessor miglit re-enter. The
demand only. jd
third of five objections taken to the lease was that the landlord
could only distrain by the terms of the lease after demand, and
was bound to detain the distress until satisfied. The objection
was overruled on the ground that the landlord had a power to
distrain and to sell the distress independently of the clause :
and that the true construction of the clause was, that it was
introduced in furtherance, and not in lieu, of the common law
and statutory power.
postponed for The fourth objection was twofold : viz., that the right of
POWERS OF LEASING. 633
re-entry was postponed for twenty-eiglit da}'s : and only arose 28 days and
after the rent had been lawfully demanded. The period of
twenty-eight days was considered reasonable, especially as the
same term was contained in a prior lease of the same premises ;
(and see Doe v. liiifhnid, 2 M. & "W. OGl, where tlie period was
forty-two daj's). And it Avas held that the provision as to
demanding the rent did not deprive the landlord of the benefit
of 4 Geo. II., c. 28, which relieves the landlord from the necessity
of making the demand : but Abbott, C. J., thought that it
might be otherwise if the lessor expressly covenanted not to
re-enter without demand.
In T(t)ib'rvUI(' v. WingfiekJ (J Price, 343 ; 3 Bing. S-'H, n.), Where power
the power required the insertion of a clause of re-entry, if period!^ *
the rent should bo behind for twentj'-one days. The condi-
tion in the lease was, if the rent should be behind and unpaid
for twenty-one days, and no sufficient distress could be had (3
Bing. 334, per Best, J.). Lord Mansfield held this provision as
to the distress to be good : saying, " The clause of re-entry [in
the power] is short, with words of course, and does not preclude
the operation of law. A re-entry is to enforce the payment of
rent : it is an immediate forfeiture of the estate b}^ common law.
By statute it cannot be without a want of distress." As to
this, see 4 Geo. II., c. 28, which provides for the re-entry of
landlords in certain events, one being that it be shown that no
sufficient distress was to be found on the demised premises coun-
tervailing the arrears then due; (but see Coxcy. Day, 13 East,
118, which, however, Lord St. Leonards, Pow. 822, considers
overruled by Smith v. Lord Jerseij, 3 Bl. 290).
A lease containing a condition of re-entry on the rent being
twenty days in arrear, when the power mentions twenty-one,
is not bad ; for it is more beneficial to the remainderman {Doe d.
Douglas v. Lock, 2 A. & E. 705).
Nor will a clause restricting re-entry to the case of there being Overt distress,
no distress be bad, although the power may specify "no overt
distress." The word overt has no legal meaning as attached to
a distress (ibid. 742).
It has been held, however, that where a power required a I^o-entry for
condition of re-entry for non-payment of rent and non-perform- covenants.
634
A CONCISE TREATISE ON POWERS.
ance of covenants, a lease with a covenant to repair, and a
proviso for re-entry, if the tenant shonld suffer the premises
to be out of repair and shoukl not repair within six months
after notice, is had {Doe d. Lord Egrcmont v. Burroug/i, 6 Q. B.
229).
Reservations. 28. If a power require leases to contain the usual reservations,
&c., the distinction between exceptions and reservations must be
remembered. " Note a diversity between an exception, which
is ever of part of the thing granted and of a thing in esse, for
which, eorceptis, sa/ro, prcefer, and the like, be apt words : and a
reservation, which is always of a thing not i)i esse, but newly
created or reserved out of the land or tenement demised " (Co.
Litt. 47, a).
A privilege of hawking, hunting, fishing, or fowling, is not
either a reservation or an exception in point of law {Doe d.
Doitg/as V. Loel; 2 A. & E. 705, 743).
Words of this sort are to be read in their proper legal sense,
unless the creator of the power has imposed a different meaning
ujjon them, which is apparent on the face of the instrument,
in which case his sense must be adopted: if the words are
unexplained and there is sufficient to satisfy them in their legal
sense, they must be confined to that meaning (Sug. Pow. 818).
Counterpart. If the execution of a counterpart be required, the lessee
should obtain a memorandum of its execution and delivery to be
endorsed on the lease and signed by the lessor : the counterpart
need not be contemporaneous with the lease {Fryer v. Coombs,
11 A. & E. 403), but must be executed within a period which
may fairly be considered as comprehended in the transaction
(Sug. Pow. 827).
The Settled Land Act, 1882, s. 7, sub-s. 4, provides that—
" a counterpart of every lease shall be executed by the lessee,
and delivered to the tenant for life ; of which execution and
delivery the execution of the lease by the tenant for life shall be
sufl&cient evidence."
Waste. 29. Powers sometimes requu-e that the lessee should not be
made dispunishable for waste. Mr. Davidson (iii. 505, n.) says,
that under a power in a deed or will to grant leases for twenty-
one years at the best rent (saying nothing about waste), it could
POWERS OF LEASING.
63-0
not proLably 1)0 douLtcd that a loase without Impeachmont of
•waste woukl be unauthorized and void, and oonsoquently the
insertion of an express clause for tlie mere purpose of pro-
liibiting such leases would be superfluous ; and he eonsidors it
the more eligible and prudent course to omit sueh a clause in
leasing powers (p. 509) : the only object in inserting sucli a
clause seems to be to render any attemi)t to grant a lease
without such restriction void on its face (Cliance, Pow. 23G0) :
but tlie existence of such a clause has been said to afford a strong
argument for holding that a power to lease lands diil not autho-
rize a lease of unopened mines {Ch'cjg v. Roirlaml, 2 Eq. IGO).
No act can amount to waste unless it be injurious to the
inheritance, either, first, by diminishing the value of the estate ;
or, secondly, by increasing the burdens upon it ; or, thirdly, by
impairing the evidence of title {Doo d. Gruhh v. Lord JBiir/ii/fjfoii,
5 B. & Ad. 507). " I can find no authority for saying that it
is ever waste to cultivate land or to cut and dispose of timber
according to a prevailing local usage, unless such usage is
excluded by the terms of the instrument creating the limited
estates which alone give rise to the question" {per Lindley,
L. J., in D((shicoo(l V. Magniae, (1891) 3 Ch. at p. 357).
The third head is now of less importance (see prr Lord Black-
burn in Dohcrfij v. AJIman, 3 Ap. Ca. 709, 735) ; and the erection
of buildings by the lessee without the lessor's consent is not waste
unless sucli buildiugs are an injury to the inheritance {Jones v.
Chappell, 20 Eq. 539). But the erection of cottages for tenants
evicted in consequence of the adoption of the plan of campaign
is said to be waste {Brooke v. Mernagh, 23 L. 11. Ir. 86 ; Brooke
V. Kavanagh, ib. 97 ; LansdowneY. Kehoe, 29 L. R. Ir. 230). xis
to waste generally, see Boirlcs' Caxe (Tudor, L. C. Conv. 37),
Dunn V. Bryan (7 I. R. Eq. 143).
Mr. Chance (Pow. 2360) says, that in ordinary cases the Must tLe
clause as to waste can scarcely mean, it seems, that the tenant
must undertake the repairs. There is, however, some conflict
of authority as to this, and as to wlietlier a lessee for years is
liable for permissive waste (Co. Litt. 53a; Bcin'es v. Baries, 38
Ch. D. at p. 504 ; and contra, Re Carticright, 41 Ch. D. 532,
and cases there cited).
636 A CONCISE TREATISE ON POWERS.
lu Doe d. Bromlci/ v. Bdtison (12 East, 305), the instrument
creating the power forbade the insertion of any clause giving
authority to the lessee to commit waste, or exempting him from
punishment for commiffiufi waste. By the lease granted under
the power, the lessor undertook to repair the mansion-house
(except windows) and covenanted that, if the roof required
repair and he did not repair, the tenant might do so and deduct
the charge out of the rent. It was contended that this
amounted in fact to an exemption of the lessee from liability for
permissive waste : but the Court held the lease good. The
question was really as to the quantum or sufficiency of the rent
reserved. If the tenant were to keep the premises in repair, the
rent would be so much less : if the landlord, so much greater.
In Nufjent v. Cutlihcrt (Sug. Prop. II. of L. 475), the settle-
ment creating the j^ower required that the lessees should not be
made dispunishable for waste by any express words. The
Lords held a lease good, which contained a covenant by the
lessee to repair, casualties by fire and war excepted. On the
other hand, in Ydlou-hj v. Goiccr (11 Ex. 274), the power
directed that the lessee should not be made dispunishable for
waste or exempted from punishment for committing waste ; the
lessees covenanted to keep part of the demised premises in repair
on being found materials, and the lessor covenanted to keep the
rest of the premises in repair. The Court held the lease bad ;
for the lessor's covenant to repair amounted to an implied per-
mission to the lessee not to rejiair. The case was distinguished
from Doe d. Bromley v. Bettisou, on the ground that in that case
the power prohibited any clause giving power to commit waste
or exempting from punishment for committing waste, but did
not forbid permissive waste : in the case before the Court, the
term " dispunishable for waste " included both permissive and
commissive waste, and was not restrained by the subsequent
part of the sentence. Mr. Davidson (iii. 508) considers that
" this decision proceeded on a narrow view of the clause as to
waste, and though not exactly at variance with the existing
authorities, was by no means required by them." It seems,
however, that it is contrary to the first principle laid down in
Doe d. Grubb v. Lord Burlington (supra) that there can be no
POWERS OF LEASING. 637
waste, unless the value of the estate Is diminished : and to the
reasoning on which the judgment in D(jr d. Bromley v. Bctfison
proceeded, viz., that it was in reality a question of the quantum
of the rent. It has, however, been followed in the recent ease of
Darlcs V. Davics (38 Ch. D. 490), where a lease granted by a
tenant for life under tlie powers of the Settled Estate Acts,
" fair wear and tear and damage by tempest excepted," was held
bad by Kekewich, J.
But no act which is within the terms of the power can be No waste if
punishable as waste. In J/o>v/s v. Rhydijdcfed Colliery Company ISlIinthe
(3 n. & N. 473, 88-3), a settlement contained a power for tenant **"''"•' ""^ '^®
' •■■ power.
for life to lease the premises for lives to any persons willing to
build thereon : also a power to lease for sixty-three years the
coal mines under the lands, "with all such powers, authorities,
accommodations, liberties and privileges as shall be necessary, or
are usually contained in leases of collieries or mines, &c., so as
the lessees be not made dispunishable for waste by any express
words." In execution of the power, a lease was granted which
empowered the lessee to build such erections, cottages, &c., as
should be necessary or proper for the due prosecution of the
works : it also empowered the lessee to dig and use stone, &c.,
which should be required for the collieries or any buildings
thereby authorized. The jury found that a power to build
cottages was necessary and usual. The Court held — (i.) that the
lease was not in excess of the j)ower ; (ii.) that the lease was not
void on the ground that the power to build and to dig and use
stone, &c., was in violation of the provision that the lessees should
not be made dispunishable for waste.
So, if a power authorize leases of unopened as well as of open
mines, the clause that tlic lessees shall not be made dispunish-
able for waste will in a mining lease be rejected as repugnant and
void {CIcgg v. Roicland, 2 Eq. 160 ; Daly v. Bec/ceff, 24 B. 114).
The clause would also, it seems, be void if the power autliorized
building leases ; and the lessee might pull down old houses in
order to erect new ones {Jones d. Conner \. F"<'/v?ry, Willes, 169).
In Doe d. Lord Egremont v. Stephens (6 Q,. B. 208), where the Acts which do
power pro^-ided that the lessee should not be authorized to ^^2"°'^* ^^
nant
638 A CONCISE TRIvVTISE ON POWERS.
commit waste, and t]ie lease contained a stipulation that the
lessee should build a new dwelling-house, and might pull down
an outhouse and use the materials for so doing, the lease was
ujiheld ; (and see Doe d. Uopkinson v. Fcrrand, 20 L. J. 0. P, 202 ;
S. L. Act, 1882, s. 29).
Usual cove- 30. The power often requires that the usual, or the usual and
reasonable, covenants should be contained in the lease. Even if
the power made no such requirement, it seems that a lease con-
taining no covenants by the lessee could not be upheld ; for, as
a mere agreement for a lease means a lease containing the usual
covenants [CJiiorh v. Broioi, 15 Ves. 265), so a power to grant
leases without more might well be said to mean leases containing
the usual covenants ; and it would moreover probably be a fraud
on the power (Sug. Pow. 827).
If the power authorize ordinary leases at rack-rentals, it
seems that the "usual covenants" will be those which are
usual as between lessor and lessee ; but if the power authorizes
beneficial leases, the words " usual" or " usual and reasonable"
will be construed with reference to their bearing on the relative
rights of the tenant for life and remainderman, and the lease in
existence at the time of the creation of the power will be taken
as the guide (Davidson, iii. 5U2, n. (o) ).
The following have been held to be usual covenants by the
lessee in an ordinary lease : to pay rent {Taylor v. Horde, 1
Burr. 125) ; to pay taxes, except such as are expressly payable
by lessor ; to keep premises in repair {Doe d. Di/mohe v. Withors,
2 B. & Ad. 903) ; to allow the lessor to enter and view state of
repairs (1 Ila. 181) ; and by the lessor, for quiet enjoyment
{Hall V. City of London Breivcry, 31 L. J. Q. B. 257 ; and see
Davidson, v., Pt. I. 51 et ficq., where the cases are collected).
Under a power to lease for twenty- one years with the usual cove-
nants, a covenant by the lessor that "in case of fire, the lessor
shall rebuild or the lessee may quit," is not usual {Doe v. Sandhamy
1 T. P. 705), nor would equity aid the lessee by reforming the
lease {Medtcin v. Sandham, 3 Sw. 685 ; but see now 12 & 13
Yict. c. 26). A covenant not to assign without license is not
usual {Henderson v. Hay, 3 B. C. C. 632; Hamj3.shire\. WiekenSy
powj:rs of leasing. 639
7 Ch. D. 555 ; Ro Laris 8f Cniry, 40 Cli. D. 001 ; Re Lander 8f
Bafjkij, (1892) 3 Ch. 41). It is now provided by the Con-
veyaneiug Act, 1892, s. .'5, tliat no fine shall be exacted for
any license to assign.
"Where the power authorizes leases at tlie ancient rents, &c.,
so that every lease shall contain tlie usual and reasonable cove-
nants, the lease in existence at the time of the creation of the
power is usually to bo taken as the guide {Doe d. Douglas v.
Lock, 2 A. & E. 705; Dor v. in/liam.s, 11 Q. B. 688).
A lease, if it bo not within 12 & 13 Vict. c. 2G, and 13 Vict.
c. 17, will bo invalidated, therefore, not merely by the omission
of a proper, but also by the insertion of an improper, covenant,
and equity will give no aid ; but a mere personal covenant by
the tenant for life binding himself only may not avoid the lease
(Doe d. Bromh'i/ v. Bcftison, 12 East, 305).
31. The Settled Land Act, 1882, provides (s. 8) as fol- Building
lows:— ^^''*'^'-
" (1.) Every building lease shall be made partly in considera-
tion of the lessee or some person by whose direction the lease is
granted, or some other person, having erected, or agreeing to
erect, buildings, new or additional, or having improved or
repaired, or agreeing to improve or repair, buildings, or having
executed, or agreeing to execute, on the land leased, an improve-
ment authorized by this Act, for or in connexion with building
purposes.
" (2.) A peppercorn rent or a nominal or other rent less than
the rent ultimately payable, may bo made paj'able for the fii-st
five years or any less part of the term.
" (3.) Where the land is contracted to be leased in lots, the
entire amount of rent to be ultimately payable may be appor-
tioned among the lots in any manner ; save that —
" (i.) The annual rent reserved by any lease shall not be less
than ten shillings ; and
" (ii.) The total amount of the rents reserved on all leases for
the time being granted shall not be less than the total
amount of the rents which, in order that the leases
may be in conformity with this Act, ought to be
640 A CONCISE TREATISE ON POWERS.
reserved in respect of the wliole land for the time
being leased ; and
" (iii.) The rent reserved by any lease shall not exceed one
fifth part of the full annual value of the land com-
prised in that lease with the buildings thereon when
completed."
And imder s. 2, sub-s. 10 (iii.), "building purposes include
the erecting and improving of, and the adding to, and the
repairing of buildings ; and a building lease is a lease for any
building piu'poses or purposes connected therewith." The 8th
section does not apply to a case of past voluntary expenditure
by a lessee on buildings comprised in the lease {Be Chcnvncr,
(1892) 2 Ch. 192).
Apart from the Act, a power to grant building leases is not
well executed by a lease which contains no covenant to build,
although it contains covenants to amend and repair {Ilallett to
Martin, 24 Ch. D. 624).
The Settled Land Act, 1882, also contains power in certain
cases for the tenant for life to grant building leases for longer
terms and on other conditions than those above mentioned ; and
also to convey the land in perpetuity subject to a rent- charge
(sect. 10).
And by sect. 9 of the Settled Land Act, 1890, it is enacted as
follows : —
"Where, on a grant for building purposes by a tenant for
life, the land is expressed to be conveyed in fee simple with or
subject to a reservation thereout of a perpetual rent or rent-
charge, the reservation shall operate to create a rent-charge in
fee simple issuing out of the land conveyed, and having inci-
dental thereto all powers and remedies for recovery thereof
conferred by section forty-four of the Conveyancing and Law
of Property Act, 1881, and the rent-charge so created shall go
and remain to the uses on the trusts and subject to the powers
and provisions which, immediately before the conveyance, were
subsisting with respect to tlie land out of which it was reserved."
In Jones d. Coicper v. Verney (Willes, 109), a power was
given by Act of Parliament to grant building leases, such leases
to contain the usual and reasonable covenants ; it was held not
POWERS OF LEASING. 641
well executed by a lease which contained a covenant to keep in
repair the premises demised, or such other house as sliould be
built during the term : the Act was held to intend building
leases, not leases only for the encouragement of rebuilding ; and
the Court said that a reasonable covenant in a building lease
must certainly bo a covenant to build ; and it made no difference
that the lessee had actually built two houses.
In Jligrjiii.s V. liosse (3 BKgh, 112), wliere the power was to
lease six acres at the best rent, with covenants to build, specific
performance of a covenant to renew a lease granted under the
power, but wliich contained no covenant to build, was refused
(semble) on the ground that the lease was not warranted by the
power.
32. A repairing lease, in common parlance, means a lease by Repairing
which the lessee is bound to lay out money in repairing the ^^^^'
premises.
"Where a lessee covenants well and sufficiently to repair,
uphold, support, maintain, amend, and keep, not only the
demised premises, but all buildings thereon erected, and to
deliver them up well and sufficiently repaired, upheld, supported,
amended, and kept together, this is enough to make a lease a
good repairing lease [Eastou v. Pratt, 2 H. & C. 676), for a
covenant to keep in repair binds the tenant to put in repair {Payne
V. Hainc, 16 M. & W. 541 ; Proudfoot v. Eart, 25 Q. B. D. 42).
And in Truscott v. Diamond Rochhoring Co. (20 Ch. D. 251),
where the power was to demise all or any of the messuages to
any person " who shall improve or repair the same or covenant
or agree to improve or repair the same or shall expend such
simis of money in improvements thereof respectively as shall be
thought adequate for the interests therein respectively," it was
held by the Com-t of Appeal that an agreement by the tenant
" to do necessary repairs " was a sufficient compliance -^dth the
terms of the power. The case of Doe d. Dymohe v. Withers (2
B. & Ad. 896), where it was held that a power to lease " for the
purpose of new building or effectually rebuilding and repair-
ing," was not well executed by a lease containing a covenant to
repair only, must be considered as overruled; (see, too, Sug.
F. X T
642
A COXCISE TREATISE ON POWERS.
Who is
entitled to
damag-es
re 'overtil on
broach of
covenants.
{^(1 JJ
^t**^
i^r.
Pow. 830). It lias been held that a covenant "to rebuild" does
not involve any obligation to erect the new buildings in tbe
same manner and in tlie same style and sliape and with the
same elevation as the old buildings {Low v. Innes^ 4 D. J. & S.
286).
33. Damages, as a general rule, are the personal estate of the
person who recovers them ; but there appears to be a distinction
between ordinary covenants, such as to repaii" and the like, and
special covenants to rebuild, &c. In a case where lands (then
in lease) were devised to trustees for A. for life, with remainder
to B. in fee, it was held that damages, recovered by the trustees
during the life of the tenant for life in respect of breaches of
covenants contained in the lease, belonged to such tenant for
life absolutely {Noble v. Ca^^, 2 Sim. 343). And there is
nothing to be said against this, if the damages recovered be
commensm"ate with the estate of the person injured, as is the
case in an action b}^ a tenant for life {Ereh/n v. Raddinh, Holt,
N. P. 543). But the measure of damages in an action for breach
of covenant to rej)air is the extent to which the marketable value
of the reversion is injured (Mayne on Damages, 2o0 ; and see
Joi/uer V. Wcel-.s, (1891) 2 U. B. 31) ; and it may well be that
there is nothing to show that the plaintiff in such an action is
a tenant for life, or the action may be by trustees who would
recover in respect of the fee, as was the case in Noble v. Cass.
The whole of the damages, however, was in that case given to
the estate of the deceased tenant for life ; and the rule is the same
with incumbents recovering dilapidations prior to the Act, 34 & 35
Vict. c. 43 (see sect. 37, and jhT Jessel, M. P., in WrigJd v.
Davies, 1 C. P. D. 638, at p. 650). On the other hand, in Pole
V. Be la Pole (2 Dr. & Sm. 420; 34 L. J. Ch. 586), where a
tenant for life had obtained 3,000/. in consideration of the with-
drawal of his opposition to a bill in parliament affecting the
settled estate, V.-C. Kindersley held, on the general equity by
analogy to the case of a tenant for life of leaseholds, that the
3,000/. must be held on the trusts of the settlement ; (and cf.
S/ireicsbur// v. Shreicsbury, 18 Jur. 307).
In Shannon v. Braddrect (1 S. & L. at p. 72), Lord Redes-
dale, speaking of a covenant to lay out 200/. in improvements,
POWERS OF LEASING. C43
says : — " If it were colourable and merely for the purpose of
putting money into the pocket of the tenant for life, it would
avoid the lease ; or if it were not originally intended as a fraud,
but were afterwards iised fraudulently (as, for example, a cove-
nant to repair, and a sum of money under colour of damages for
breach of that covenant recovered by the tenant for life), a court
of equity would at least take care that tlie damages should be
laid out on the lands." But this might be solely on the ground
of the fraud. If, however, a building lease were granted under
a power which required that the tenant should covenant to lay
out a sum in building, it would seem contrary to the nature of
the power to allow the tenant for life to recover and keep for
his own benefit damages for the breach of such a covenant.
34. The Conveyancing Act, 1881, s. 41, provides that Leases by
" Where a person in his own right seised of or entitled to land
for an estate in fee simple, or for any leasehold interest at a
rent, is an infant, the land shall be deemed to be a settled estate
within the Settled Estates Act, 1877."
The Settled Land Act, 1882, enacts as follows : —
" 59. Where a person, who is in liis own right seised of or
entitled in possession to land, is an infant, then for purposes of
this Act the land is settled land, and the infant shall be deemed
tenant for life thereof.
" 60. Where a tenant for life, or a person having the powers
of a tenant for life under this Act, is an infant, or an infant
would, if he were of full age, be a tenant for life, or have the
powers of a tenant for life under this Act, the powers of a
tenant for life under this Act may be exercised on his behalf by
the trustees of the settlement, and if there are none, then by
such person and in such manner as the Court, on the application
of a testamentary or other guardian or next friend of the infant,
either generally or in a particular instance, orders.
The 11 Geo. IV. & 1 Will. IV. c. 65, s. 17, provides that the Act ii Geo. 4
Court of Chancery may authorize leases to be made of land c. 05 s. 17.'
belonging to infants when it is for the benefit of the estate.
It is to be observed tliat this statute apjilies only to infants
seised or possessed of, or entitled to, any land in fee or in tail,
T T 2
644 A CONCISE TREATISE ON POWERS.
or to any leasehold lands for an absolute interest. If lands,
therefore, were limited to trustees on trust for sueli of the
children of A. as should attain twenty-one, and if hut one
should attain that age, the whole to such one, with trusts for
maintenance, and a gift over, the case would not he within the
statute.
In Re Eram (2 M. & K. 318), an estate of which A. died
seised in fee descended upon A.'s five infant sisters. The
father and mother of the infants were both alive, and the
estate of the sisters was consequently liable to be divested by
the birth of a nearer heir of A. It was held that the infants
were not seised in fee within the meaning of the Act.
But in Ee Clark (1 Ch. 292), where lands were limited in fee,
defeasible on certain events happening, the Court held that it
had power to authorize leases under the statute, if all persons
who could be entitled on any of the events happening were
before the Court.
It was held in Ex parte Legh (15 Sim. 445), that the Court
has no jurisdiction under this Act to authorize leases of lands of
which an infant is tenant in remainder. But the contrary was
held by Malins, V.-C, in Ee Spencer (16 W. R. 306), and Ee
Letcliford {2 Ch.D. 719).
645
CHAPTER XVIII.
POWERS OF APPOINTING NEW TRUSTEES.
PAOE
1. Conveyancing Act, 1881, s. 31 . G45
2. The persons by ivhom the power
is to be exercised Gl 7
3. The events in which the power
is exerciseable 649
4. Augmenting the number of
trustees 650
6. Diminishing the number of
trustees 651
PAGE
G. Separate sets of trustees Go2
7. JFho may be appointed new
trustees 653
8. Principles to be observed in ap-
pointing new trustees ib.
9. Circumstances attending ap-
pointments of new trustees . . 655
1. By s. 31 of the Conveyancing? Act, 1881, it is enacted as Conv. Act,
follows:- ''''''■''■
" (1.) Where a tnistee, either original or substituted, and
whether appointed by a Court or otherwise, is dead, or remains
out of the United Kingdom for more than twelve months, or
desires to be discharged from the trusts or powers reposed in or
confen-ed on him, or refuses or is unfit to act tlierein, or is
incapable of acting tlierein, then the person or persons nominated
for tliis purpose by the instrument, if any, creating the trust, or
if there is no such person or no such person able and wilhng to
act, then the sm-viving or continuing trustees or trustee for the
time being, or the personal representatives of the last sur\aving
or continuing trustee, may, by writing, appoint another person
or other persons to be a trustee or trustees in the place of the
trustee dead, remaining out of the United Kingdom, desiring to
be discharged, refusing or being unfit, or being incapable, as
aforesaid.
" (2.) On an appointment of a new trustee, the number of
trustees may be increased.
" (3.) On an appointment of a new trustee, it shall not be
Giii A CONCISE TREATISE ON POWERS.
obligatory to appoint more than one new trustee where only-
one trustee Avas originally appointed, or to fill up the original
number of trustees where more than two trustees were originally
appointed; but, except where only one trustee was originally
appointed, a trustee shall not be discharged under this section
from his trust unless there will be at least two trustees to per-
form the trust.
" (4.) On an appointment of a new trustee, any assurance or
thing requisite for vesting the trust property, or any part thereof,
jointly in the persons who are the trustees, shall be executed or
done.
" (5.) Every new trustee so appointed, as well before as after
all the trust property becomes by law, or by assurance or other-
wise, vested in him, shall have the same powers, authorities, and
discretions, and may in all respects act as if he had been
originally appointed a trustee by the instrument, if any, creating
the trust.
*' (6.) The provisions of this section, relative to a trustee who
is dead, include the case of a person nominated trustee in a will
but dying before the testator ; and those relative to a continuing
trustee include a refusing or retiring trustee, if willing to act in
the execution of the provisions of this section.
" (7.) This section appHes only if and as far as a contrary
intention is not expressed in the instrument, if any, creating the
trust, and shall have effect subject to the terms of that instru-
ment and to any provisions therein contained.
" (8.) This section applies to trusts created either before or
after the commencement of this Act."
Applies to This section is now made applicable to the appointment of
pu^oses of new trustees for the purposes of the Settled Land Acts (Settled
Acts^^"""*^ Land Act, 1890, s. 17) : a point which was doubtful before this
Act {Re Wilcock, 34 Ch. D. 5U8 ; lie Kane, 21 L. R. Ir. 112).
It appears that the powers given by sub-s. 2 only arise when
an appointment is beiog made. An additional trustee could
not be appointed as a single and separate transaction ; but if a
vacancy is to be filled up, two or more trustees may be appointed
to fill such vacancy {Re Grecj-mn, 34 Ch. D. 209).
POWERS OF APPOINTING NEW TRUSTEES. 647
Executors of a deceased tinistee do not render themselves Executors of
liable to costs by decliuiug to exercise the powers given them trustee not
by this section {lie Knight, 26 Ch. D. 82). a^^'oilt''
If the power is silent as to the events on which it is to be in what event
exercised, the Court will read it as meaning on any vacancy ^^^^l^^^^^^^
however arising, notwithstanding that tlio settlement is dated
before the Act, and that tlio event wliicli has happened is made
by the Act, and not by the settlement, to create the vacancy
{Re Walker and Uiighes, 24 Ch. D. 698). And the fact that the
power is silent as to such event, while enumerating others, is
not evidence of a contrary intention within sub-s. 7 {Re Coates
to Pamom, 34 Ch. D. 370). Nor does the necessity for consent
to the exercise of an express power, where such consent is no
longer possible and the power is therefore no longer exerciseable,
show such a contrary intention {Cecil v. LaiKjdo)!, 28 Ch. D. 1).
If, however, the power is given to persons named other than
the trustees, and is made exerciseable in certain events only, it
is submitted that the Act cannot be read as enlarging that
power by the addition of other events on which it may bo exer-
cised. But in such a case the surviving or continuing trustees
or trustee for the time being, or the personal representatives of
the last surviving or continuing trustee, must appoint. For
example, if A. has power to appoint now trustees in the place of
any trustee who dies, the Act does not enable A. to appoint a
new trustee in the place of one who desires to be discharged.
In such a case there would be no person nominated for the
purpose by the instrument creating the trust, and recourse must
be had to the latter part of the first sub-section.
2. Apart from the Act, surviving trustee has been construed "Sun-iving
with reference to the trust, not to the lives of the trustees who
have disclaimed or retired : " surviving " being in effect equi-
valent to "continuing to act" {S/tarp v. Sharp, 2 13. & Aid.
405). So in Ca/e v. Re)it (5 Ha. 24) the power was given to
the survivor of A., B., and C. A. disclaimed and B. died ; and
it was held that C, although not the survivor in point of life
of A., B., and C, could well appoint new trustees, on the
648
A CONCISE TREATISE ON POWERS.
" Continuini:
trustee."
" Surviving,
continuing,
or other."
Power in will.
Executors
and adminis-
trators.
Last surviv-
ing includes
sole trustee.
Sole trustee
dying before
testator.
ground that the power was annexed to the office, although the
original donees were named.
In Sfoiies V. Roicton (17 B. 308), it was held that a power
exerciseable by the surviving or continuing trustees or trustee
could not he validly exercised by an appointment by the two
trustees (both of whom simultaneously retired) of two new
trustees in their places. The Master of the Rolls said that in
order to uphold such an appointment, it would be necessary to
read " continuing " as synonymous with " retmng " ; and two
deeds were necessary to make an effectual execution ; (and see
NicJiokon v. Smith, 26 L. J. Ch. 312 ; Travis v. IlUiigworth,
2 Dr. & Sm. 344 ; Be JVorris, 27 Ch. D. 333 ; Be Coatcs to
Parsons:, 34 Oh. D. 370 ; and confrci, Re Glenny, 25 Ch. D.
611).
In Camoi/s v. Best (19 B. 414), the power was given "to the
surviving or continuing or other trustees or trustee," and was
well exercised by an appointment by a sole sm"viving trustee,
who desired to be discharged, in place of himseK and his
deceased co-trustees.
The ordinary power of appointing new trustees in a will may
be exercised in the event of the death of a trustee before the
testator {Be Eadley, 5 De G. & Sm. 67 ; Nohle v. Meymott, 14
B. 471, overruling Winter v. Budge, 15 Sim. 596).
The executors and administrators of the last surviving or
continuing trustee must be taken to mean the acting executors
and administrators {Granville v. MacNeile, 7 Ha. 156).
Under the Conveyancing Act, the words personal representa-
tives of the last surviving or continuing trustee include the
executor of a sole trustee {Be Shafto, 29 Ch. D. 247). But the
Act does not appear to extend to the case of the death of all the
trustees or the sole trustee before the testator whose will creates
the power {Be Orde, 24 Ch. D. 271 ; Be Licjhthody, 33 W. E.
452 ; Be Amhler, 59 L. T. 210).
Under sub-s. 6 of the 31st section, the term " continuing
trustee " does not include a retiring trustee, unless it is shown
that the retiring trustee is competent and willing to act in the
POWERS OF APPOINTING NEW TRUSTEES. G49
exercise of the powers of the section {Re Coates to Parsons, 34
Ch. D. 370 ; lie Norn\ 27 Ch. D. 333).
3. The power is usually made exerciseable in the event of Events in
any one or more of the trustees dying or being abroad, or power is *^
desiring to be diseluirgcd, or refusing or becoming incapable to '^^^■''^1'*^''*^'^.
act. The provision in the Act, "remains out of the United
Kingdom for more than twelve months," is new.
Eesidence abroad means permanent residence. In Ee Moravian Being abroad.
Socictf/ (26 B. 101), trustees were to be disqualified "on depart-
ing the United Kingdom, from whatever cause or motive, or
under whatsoever circumstances " : it was held that a temporary
absence was not within the provisions. And in Ee Arhib and
C/a.ss (1891, 1 Ch. 601), a testator appointed B., then resident
in Australia, one of his executors and trustees, " if and when he
shall return to England," and devised his realty to his trustees.
B. returned to England eight years after the testator's death,
remained for six months, and then returned to Australia without
having proved the will or acted in the trusts. It was held that
B. had fulfilled the condition by his residence for a substantial
period in England, and that the trusteeship and estates had
vested in him.
A trustee who objected to act Avith a new trustee, and paid Declinino-.
the money into Court, was held to have thereby retired {Ee
Williams, 4 K. & J. 87 ; but see Ee Lamlou, 40 L. J. Ch. 370).
It seems the better opinion that the word " declining " is to
be taken in as large a sense as the word " dying," and does not
extend merely to the case of a trustee who has never acted
{Travis v. lUingicorth, 2 Dr. & Sm. 344 ; but see Ee Armstrong,
5 "W. R. 448 ; Ee Woochjate, ibid.). It seems the better opinion
that refusing to act is equivalent to desiring to retire (Lewin on
Trusts, 9th ed. 739).
Each case must depend on its own circumstances, but, as a Becoming
general rule, incapacity means personal incapacity (7?^' Bignold, ^'^'"^P'^^^e.
7 Ch. 223), consequently residence abroad does not constitute
incapacity to act {WitJdngton v. Withington, 16 Sim. 104; ii<'
Harrison, 22 L.J. Ch. 69; O'Eeilli/ v. Alderson, 8 Ha. 101,
and eontra, Mennardv. WeJford, 1 Sm. &, G. 426).
650
A CONCISE TREATISE ON POWERS.
Bankruptcy. Baukriiptc}' ov outlawry does not render a man " incapable "
to act {lie Wattx, 9 Ua. 106), but it renders him "unfit" {Re
JRoe/ie, 2 Dr. & War. 287). A bankrupt, however, wlio has
obtained a first-class certificate, and has since started afresh and
has means of his own, is not unfit {Be Bridgman, 1 Dr. & Sm.
1 64) . But he is not the less unfit, because his bankruptcy was
owing to misfortunes, unless he also has means {Re Adams, 12
Ch. D. 63-1; Re Barker, 1 Ch. D. 43).
A bankrupt trustee may be removed under the general juris-
diction of the Court {Bainhridye v. Blair, 1 B. 495 ; Harris v.
Harris, 29 B. 107). He might also have been removed by the
Comi of Chancery, under s. 130 of the Bankruptcy Act of 1849,
if the Court thought fit {Re Bridgman, 1 Dr. & Sm. 164).
And by the Act of 1869, s. 117, it was provided, and by s. 147
of the Act of 1883 it is provided tliat where a bankrupt is a
trustee within the Trustee Act, 1850, the 32nd section of that
Act shall have effect so as to authorize the appointment of a
new trustee in substitution for the bankrupt (whether volun-
tarily resigning or not) if it appears expedient, and all
provisions of that Act and of any other Act relative thereto
shall have effect accordingly. The Act of 1869 authorized
" the Court " to appoint ; and this was held to mean the Court
of Chancery {Coomhesy. Brookes, 12 Eq. 61).
Lunacy, or unsoundness of mind, renders a trustee incapable
to act. In Re East (8 Ch. 735), it was provided that if any
trustees or trustee should die or become unwilling or incapable
to act, the trustees or trustee for the time being, whether con-
tinuing or declining to act, might appoint new trustees. One
of the trustees became of unsound mind, but was not so found
by inquisition, and the other two trustees appointed a new
trustee in his place. This appointment was held good.
If the difficulty arises from the lunacy of the donee of the
power, his committee may appoint (16 & 17 Vict. c. 70, ss. 136,
137; 53 Yict. c. 6, ss, 128, 129).
Augnitnting 4. If the powcr clearly require that only one person shall
We"T.^'''''^ be substituted in the place of another, it must of course be
complied with. But under a power in the common form, or
Lunacy.
Lunacy of
donee of
power.
POWERS OF APPOINTING NEW TRUSTEES. 651
general in its terms, it seems botli upon principle and authority,
that more than one person may be appointed to fill a vacancy
caused by the death, &c., of one of the old trustees (Sug. R. P.
Stat. 413; and see Conv. Act, 1881, s. 31, sub-s. 2). In Ex
imrtc Back (2 Y. & C. C. 468), an appointment of four trustees
in the room of three was considered invalid. But in ^anda v.
Nugec (8 Sim. 130), where a trustee was authorized to name
any other person to succeed him and he appointed three, their
appointment was upheld ; (and see ^L'inevtzhagcn v. Back, 1 Coll.
336) ; llilhnan v. Wcdicood (3 W. E. 41 ; 24 L. J. Ch. 57).
Under Lord Cranworth's Act, an appointment of two trustees
in the place of one has been held valid {lie Breanj, W. X. 1873,
48). And two trustees of real estate have also been appointed
in the place of one under the Trustee Act, 1850 {Re Tioidall,
4 De G. & Sm. 421). And the Court is averse to allowing
trust funds to stand in the name of a sole trustee {Grant v.
Grant, 34 L. J. Ch. 641). In Re Braehenhury (10 Eq. 45), a
legacy was bequeathed to A. in trust for a tenant for life and
then for reversioners absolutely. On a petition by the rever-
sioners, who were also executors, the Com-t appointed an
additional trustee, but the petitioners were ordered to pay the
costs. And the Com-t has inherent jurisdiction in a cause to
appoint new trustees of a will in a case where no trustees were
originally appointed by the testator {Bodkin v. Brunt, 6 Eq.
580 ; and see Sug. R. P. Stat. 415 ; andi?^' Snuirt/uraite, 11 Eq.
251 ; lie Bark, 12 Eq. 214; Re Moore, 21 Ch. D. 778).
5. Although the appointment of a diminished number of Diminishing
trustees appears not to be ipso facto void {Miller \. Priddon, 1 IrusJ^Jt™^^"^ "^
D. M. & G. 335 ; Re Fagg, 19 L. J. Ch. 175 ; Re Bathurst,
2 Sm. & G. 169; Emmet v. Clarice, 3 Giff. 32; 30 L. J. Ch.
472), the Coui-t will not, without good reason, allow the number
of trustees to be diminished, unless the terms of tlie power
authorize it {Re Ellison, 2 Jur. N. S. 62). And the Court itself
will not appoint a sole trustee, even in cases where no more than
one was originally appointed {D'Ad/ieinar v. Bertrand, 35 B.
19). And in Lonsdale v. Beckett (4 De G. & Sm. 73), where
three trustees of a will were appointed, and one died in the
652 A CONCISE TREATISE ON POWERS.
testator's lifetime, an appointment by the survivor of the other
two of a single new trustee in his own place was held invalid,
and the Court would not appoint two trustees only without
being satisfied that such a course was for the benefit of the
cesfu/-'< que trust.
It will be otherwise if the terms of the power authorize the
number of trustees to be increased or diminished ; the trustees
may exercise such discretion when they are expressly empowered.
And in Re StoLrs (13 Eq. 333), where a testator availed
himself of the statutory power, but declared that on any
appointment the number of trustees might be augmented or
diminished, the Master of the EoUs appointed the continuing
trustees to be trustees in the place of themselves, and a trustee
who wished to retire ; (and see Peacock v. Colling, 53 L. T. 620 ;
Conveyancing Act, 1881, s. 31, sub-s. 3, ante).
Separate sets 6, The Conveyancing Act, 1882, s. 5, enacts as follows: —
of trustees. ^ ^y^ q^ ^^ appointment of new trustees, a separate set of
1882,8.5.' trustees maybe appointed for any part of the trust property
held on trusts distinct from those relating to any other part or
parts of the trust property ; or, if only one trustee was originally
appointed, then one separate trustee may be so appointed for the
first mentioned part.
" (2) This section applies to trusts created either before or
after the commencement of this Act."
The power of allowing trustees to retire from the trusts of a
separate part of the trust property, and of appointing new
trustees of the severed portion, was within the jurisdiction of
the Court by virtue of s. 32 of the Trustee Act, 1850 {Re
CotteriU, W. N. 1869, 183; Re Cunard, 27 W. R. 52). And,
as the fifth section of the Act of 1882 was held not to authorize
the appointment of a separate trustee or a separate set of trustees
of a particular part of the trust property except on the occasion
of the appointment of a new trustee or trustees of the entire
trust estate {Sadie v. Coiiper, 36 Ch. D. 520 ; Re Nesbitt, 19
L. R. Ir. 509), recourse had still to be had to the Court in every
case where it was desired to vest a portion of the estate in
separate trustees, and there was no vacancy among the trustees
POWERS OF APPOINTING NEW TRUSTEES. (J63
of the entire trust estate (lie M(m, 37 Cli, D. 513 ; Rp Paine,
28 Ch. D. 725).
But now by sect. 6 of the Conveyancing Act, 1892, it is Cony. Act,
1 J 188'2, 8. 6.
enacted : —
"A SGjiarate set of trustees or a separate trustee may be
appointed under the fifth section of the Conveyancing Act,
1882, of a part only of the trust property, notwithstanding that
no new trustees or trustee are to be appointed of other parts
of the trust property, and any existing trustee may be appointed
or remain one of such separate set of trustees; and every
appointment already made of a separate set of trustees shall be
valid notmthstanding that there was no retiring trustee of other
parts of the trust property, and that no new trustees were
appointed of such other parts thereof."
7. Where there is a settlement of English property with Who may be
English trustees, it would be an imprudent and improper *PP°"^ '
exercise of the power to appoint foreigners, or even to appoint
persons habitually resident out of England. But where an
English woman married an American and the settlement con-
tained a power to invest in American securities, or on real
securities in England or America, and the husband and wife
went to reside permanently in America, an appointment of three
American trustees in the place of the original English trustees
was held good {Mcincrtzhagen v. JDavis, 1 Coll. 335 ; and see Re
Frenmni, 37 Ch. D. 148 ; Re Liddian, 14 Ch. D. 310 ; Re Smith,
20 W. E. 695 ; Re Cunanl, 27 W. E. 52 ; Re Long, 17 W. E.
218; Re Austen, 38 L. T. 601).
But the Court has refused to authorize the appointment of
three foreigners resident in Paris as trustees of a settlement
which allowed investments to be made on Grovernment or real
securities in France or England {Re Guibert, 16 Jur. 852).
8. The principles upon which the Court acts in appointing "Uliat ap-
new trustees are stated in Re Temped (1 Ch. 485). But S'^g^'!^"
although it is a safe rule for trustees to make such appointments
only as the Court would make, it must not be supposed tliat
appointments made by appointors which the Com-t would not
65 i A CONCISE TREATISE ON PO^VERS.
have made are necessarily bad. The appointors must in each
case make such an ajipointment as they hom fide believe to be
proper; and if they do this, the appointment will be valid,
although the Court might not have made such an appointment
if the application had been to the Court to appoint. Thus, in
He Norn's (27 Ch. D. 333), the Court refused to appoint a
father and son, who were solicitors in partnership, as trustees;
but Pearson, J., said : "I am very far from saying, and must
not be understood to say, that, if there was a trust which was
not being administered by the Court, and the person who had
the power of appointing new trustees had bond fide appointed as
trustees a father and his son who were solicitors in partnership, it
would be a bad appointment, so as to render any deed executed
by the trustees so appointed null and void. I should be very
sorry to hold that such an appointment outside the Court would
be invalid. If such a case came before me, and I found that
the aj)pointment had been made bond fide outside the Court,
I should certainly hold that the trustees were validly
appointed."
Appointment Again, the Court does not usually appoint persons beneficially
interested, or the husbands of such persons (although it has
done so, e. ej., in Be Ilatfatt (18 W. R. 416), Ee Lightbody (33
ih. 452)), or the tenant for life {Forster v. Abraham, 17 Eq.
351), but if the donees of the power choose to appoint a bene-
ficiary, the appointment would under ordinary oircumstances be
perfectly valid {Tempest v. Lord Camoi/s, 58 L. T. 221 ; Lewin,
Of appointor 9th ed., 748, 749). It has been held in Re Skeafs (42 Ch. D.
522), that, where property was settled on trusts in favour of a
married woman, her children, appointees, and next of kin, and
she and her husband had power to appoint new trustees, an
appointment of the husband and another as new trustees was
invalid. The decision was rested on the double ground that
the power is fiduciary (and a man is not a proper judge of his
own fitness), and that the words of the power authorized only
the appointment of any " other " person. It would appear to
follow from this that the executors of the surviving trustee
POWERS OF APPOINTING NEW TRUSTEES. 656
cannot appoint tlieraselves to be trustees, although the estate is
vested in thorn on trust. But this is not uncommonly done,
and it would unsettle many titles if such appointments were
held bad. Probably, the learned judge only meant to decide
that the ajipointment was improper, not that it was null and
void. The application was by the retiring trustees for the pur-
pose of ascertaining whether they might properly transfer the
trust funds to the new trustees, and it was held that they could
not. As to the word " other," it is submitted that its meaning
is, other than the person whose place is to be filled, not other
than the appointor. But the decision, as reported, certainly
creates a dilfieulty : the safeguard against improper appoint-
ments is the liability to costs of the appointors who make them
{Raikes v. Railrx, 32 B. 403).
9. If the appointment of new trustees be ineffectual, the old If appoint-
trustees remain and can exercise the powers of the trustees ( War- old trustees
burton v. Sa)i{li/.s, 14 Sim. G22). But they must exercise their ^^'^ ^^*-
discretion and judgment, and not merely adopt the act of the
ineffectually appointed trustee {Lancashire v. La)icashire, 2 Ph.
657).
The costs of appointing new trustees are as a matter of practice Costs of ap-
paid out of corpus, whether the appointment is made by the ^°"^ ^'^^
Court, or under a power out of Court (Lewin, 9th ed. 753).
New trustees are not bound to enquire of the retiring trustees Liability of
1,1 ,. p. 1 1 1 ., ,.A new trustees
whether any notices or incumbrances have been received : and ii for notices to
they distribute the fund without knowledge of an incumbrance ^^'^''* v^^^^'
'' ° cessors.
of which notice had been given to their predecessors, they will
not be liable {Pliippn v. Loirgrorc, IG Eq. 80). But it lias been
said that they are bound to look into the documents of the trust
to see whether their predecessors had notice of any incumbrance
{Hallou-H V. Lloyd, 39 Ch. D. 686, 691). They are not, however,
bound to answer enquiries by a person intending to deal with
their ccdui que trust. Such person has no rights against the
trustees, except such as the ccdui que trust can give him ; and it
is no part of the trustee's duty to tell his cestui que trust what
incumbrance he has created, or of which notice has been given.
656 A CONCISE TREATISE ON POWERS.
If the trustee answers such inquiiies honestly and without
warranting his information to be correct, he is not liable for
forgetfulness or mistake {Low v, Botwerie, (1891) 3 Ch. 82 ;
Re Wyatt, White v. Ellis, (1891) 1 Ch. 188) ; but he is bound to
give proper information as to the investment of the trust estate
and the means of verifying such information {lie Tillott, (1892)
1 Ch. 86).
As to the liabihty of trustees who retire under circumstances
which warrant a reasonable belief that the trust fimds will be in
peril in the hands of the new trustees, see Webster v. Lc Hunt,
8 Jur. N. S. 345 ; Palariet v. Careic, 32 B. 564 ; Sucjden v.
Crossland, 3 Sm. & G. 192.
INDEX.
ABATEMENT,
aliquot shares, -when, 250.
charge, 251.
residue bears loss in what cases, 252.
specific sums appointed, 252.
ABSOLUTE
appointment, person who can make, can make qualified, 270.
modifications following, ,301.
revocation of, and gift to appointee, 379.
estate, what is gift of, 52.
gift followed by precatoiy words, 479.
interest with power amounting to trust superadded, 465.
interest, gift over, in default of exercise of power, shows not intended
62.
ABSOLUTE GIFT.
creation of power or, 52 et seq.
executors and administrators, remainder to, 54.
gift over, implication against, from, 62.
heii-s or heii's of body, remainder to, 56, 57.
income, unlimited gift of, 54.
issue, remainder to, 58.
next-of-kin, remainder to, 55.
personal representative, remainder to, 55, 56.
repugnant, power to, 64.
severance of reversion for special purpose, 03.
ACCELEEATION,
administrative powers, 152.
burdensome powers, 152.
power not defeated by, of estate in remainder, 30.
remainder, none of, because of appointment of life estate to a stranger
to power, 309.
unless intention othei-wise, 310.
F. U U
658 INDEX.
ACCEPTANCE OF BENT
confirms lease, 352.
unless lease void, 357.
ACCIDENTAL
non-execution, no relief against, 338.
ACCOUNT DUTY, 254, 280.
ACCRUED SHARE,
when appointment passes, 198.
ACCUMULATION,
debts, to pay, 112.
effect of Settled Land Act on, 112.
ACTION,
powers not extinguished by commencing administration, 43.
ADDITIONAL
or substitutional powers, 108.
inference against reduplication by reference, 109.
Settled Land Act powers, 583.
ADEMPTION, 217—220.
accession of legal to beneficial interest, none by, 221.
appointment of specific fund, 221.
gift or settlement, by, 394.
AD^nNISTRATION,
decree, effect of, 41.
where limited, 44.
where action wound up, 44.
powers of management and of appointment on, 42.
Settled Land Act powers, 43,
ADMINISTRATOR,
durante minore cetate, power of sale of, 454.
husband as wife's, entitled to her choses in action, 123.
land, cannot sell, 88, 9G.
raising money after thirty-six years, 447.
transferee of mortgage, of, power of sale, 454.
ADULTERY,
does not destroy powers, 39.
dower forfeited by, 39.
jointure and curtesy not forfeited by, 39, 526, 527.
ADVANCEMENT,
abolition of pui'chase in army, effect of, on, 37.
appointed share, whether power of, applies to, 288.
659
INDEX.
ABYANCEITENT— continued.
construction of clause of, 402.
fraudulent exercise of power of, 404.
infant, made to, cannot be recovered, .3:24.
marriage, effect of, on power of, 24.
minority, power of, cxorcisoable onlj- during, when, 37.
power of, when inserted in settlements, 529.
tenant for life cannot prejudice his own assignee by, 24, 25.
trustees of post-nuptial settlement, payment to, 323.
wife to, lending money to husband may be, 324.
paying husband's debts not, when, 324.
ADVOWSON,
infant can present to, 125.
ALIENATION,
appendant power not destroyed by, 19, 20.
unless exercise derogates from grant, 20.
conditional, 21.
new trustees, power of appointing, not affected by, 21.
ALIQUOT
shares, abatement, 250.
appointment in, 246.
ALTERATION,
in deed presumed to bo before execution, 7.
in will presumed to be after execution, 7.
ALTEENATIVE
gift may be good though in another event the rule against perpetuity
infringed, 297.
to strangers or objects of power, 303—305.
power, 37.
ANNUITY,
power to purchase authorizes gift of fund, 324.
APPENDANT POWEES,
alienation of particular estate, effect on, 19, 20.
definition, 9.
infant cannot exercise, 125.
APPOINT,
use of word alone does not show intention to exorcise a limited
power, 191.
APPOINTEE,
estate vests at time of execution, 289.
takes from what date, 237.
U u 2
660 INDEX.
APPOINTMENT,
abatement, q. v., 250—252.
acceleration of, 309.
accrued share, when passes, 198.
ademption, q. v., 217 — 220.
advance, q. v., 324.
children, q. v., 487—504.
death of one of several, objects, effect, 162.
defeasible, 161.
defective, q. v., 327 — 361.
deficiency in, when made good out of appointor's interest, 268.
effect of, on estates in default, 276.
equitable, 2.
equity, what is sufficient in, 318 — 326.
estate to be sold, and gift of proceeds, 321.
estates created by, 289.
commencement of appointee's estate, 289.
evidence of intention to make, 176.
excessive, q. v., 285 — 326.
executors of appointee, to, 243.
executory,
to object in defeasance of gift to stranger, 303.
to stranger in defeasance of gift to object, 302.
fee, of less estate than, 321.
of, demise will not support, 4.
fraudulent, q. v., 403—438.
effect on reappointment, 203, 204.
general power, under, q. v., 176.
grant, operates as, when, 266, 267.
instniment creating power, read into, 286, 288.
interest, of, authorized by power to charge, 321, 535.
invalid, effect on reappointment, 201.
land on trust for sale, of, 321.
land, of, does not execute power of charging, 181.
lapse, q. v., 236.
legal estate, of, to trustees, 319.
life estate, 322.
limited power, under, q. v., 183, 226.
limitation, words of, how far necessary in, 289.
maintenance, under power of, 323.
mixed fund, 322.
mortgage, by way of, extent of, 165 et seq.
and on express trusts, difference between, 171.
notice of, to trustees, 275.
objects and strangers, 312, 313.
only one object, when, 161.
pendente lite, 45.
INDEX. 661
APPOINTMENT-con<e H tied.
perpetuity, iufringing rule against, 286, 292.
remainder, in, 308.
rentchargo, of, for jointure, 320.
reservation of oquitj' of rodomption by, 171.
residue of fixed sum, of, 24G.
reversion, of property in, 198.
separate use, for, 323.
severable, 291, 312.
several deeds, by, 175.
succession to strangers and objects, in, 30G— 310.
successive, 273.
times, may bo exercised at different, 36.
trustees, of. See New Trustees, 645—656.
trustees can hand over property subject to power of, when, 275.
APPOINTOE,
estate of, may be Hable to make good deficiency of appointed estate
268.
APPORTIONMENT,
of aj^pointments, 312, 313.
in respect of acts to be done, 315.
oicy-prea rule, 317.
ASSETS,
for payment of debts, 240, 243.
general power executed makes appointed property, 254, 255.
married woman, 256.
" ASSIGNS,"
word may create power, 50.
" AT ANY TIAEE,"
power to be exercised, 36.
ATTESTATION,
form of, 135, 136.
meaning of " attest," 137.
when to bo made, 139.
BANKHUPTCY,
aijpointor's, effect on power of advancement, 24.
discretionary power for object, effect on, 25.
forfeiture on, may create perpetuity, 293, 294.
person entitled in default, efioct on power, 24.
delegation of powers on, 450.
tenant for life, of, effect on powers, 21.
trustee, of, 650.
662 INDEX.
BANKRUPTCY— continued.
trustee in, exercise of powers by, 450.
general power of married woman cannot be exercised by,
450.
will, powers only exerciseable by, do not pass to, 450.
BENEFICIAL POWER,
reference to, 186.
BLENDED FUND,
executor's power of sale, 72.
exercise of limited power, where, 184, 185.
BEEACH OF TRUST,
defective execution not aided if, 332, 333.
release of power, 12.
BURDENS,
period for ascertaining for piirpose of jointure, 524.
BURDENSOME POWERS,
not accelerated, 152.
CAPITAL
income, unlimited gift of, gives, 54.
CHARGE,
abatement of, 251.
annual rents, on, does not carry interest, 537.
apportionment of, 535.
corpus, on, 530, 531.
covenant in marriage articles to settle estate excludes, for younger
children, 528.
and, incidence of liability between, 402.
creation of, by direction to pay debts, 75.
where executors are directed to pay debts, 77, 79.
debts, of, creates power of sale, 79.
where estate devised to one execixtor or several un-
equaUy, 78, 79.
equitable not legal estate affected by, 79, 81.
effect of 22 & 23 Vict. c. 35... 86— 89.
by married woman, effect of, 263.
double portions, 543.
excess void, if larger than authorized, 318.
extent of, 76.
generality of power not limited against intention, 542.
INDKX. 063
CRABOB— continued.
interest on, should bo paid yearly, 535, 53G.
may be charged, 321, 535.
issue of second mairiage, in favour of, 529.
land, power to, not exercised by appointment of land, IGl.
authorizes charge on any portion, 530.
sale or mortgage, 530.
lapse, 542.
merger of, 32.
mortgage, executors raising money to pay debts by, 89.
payment of, suspended, where power of revocation, 533.
portions, when payable, 532.
secui-ed on reversionary interest, 532.
raising, mode of, 531.
period for, 532.
one child only of age, 534.
suspended by power of revocation, 533.
reference, power created by, 541.
rents and profits, on, 530, 531.
remaindei-men, wishes of, as to raising, 531.
sale or mortgage to raise, according to wish of persons immediately
interested, 531.
tenant for life must keep down interest, 537.
action against, for not keeping down, 538, 539.
paying off, 539.
interest in excess of income, 540.
imauthorizcd, on appointed fund, void, 299.
unlimited amount, power to, 320.
usual power, is not, 528, 529.
vesting of portions, 530, 543.
CHAEITY,
defective execution aided in favour of, 340.
implication of gift to, 468.
lease of lands of, void if in excess of power, 318, 609.
CHILDREN,
bargain with, on aiipointment, 407.
contingent on donee leaving, 473.
death of one of objects, 162.
limited to those liAdng at testator's, if power created by will,
490.
unless there is a contrary intention, 490.
defective execution aided in favour of, 341.
eldest son, 499.
extinguishment of power to appoint to, 1 6.
grandchildren not objects, 493.
664 INDEX.
CHTLDEEN— coHf i'h ued.
illegitimate, 487.
infant, to, not necessaiily fraudulent, 412.
legitimate, prima facie meant, 487.
repute, 488.
power created by deed or by will, 488, 489.
life estate with general power given, 322.
of appointing by will, 322.
who are objects, 490.
marriage of any, when included, 491.
parents, substituted for, 497.
period for ascertaining class, 475.
portions, ademption and satisfaction, 394 — 402.
power to appoint to, wben class is ascertained, 490.
refunding by, 324, 369.
tail, estate, created by devise to A. and his, 491.
ventre sa mere, child en, included, 490.
wife and children, power to appoint to, 491.
yovmger, 498.
eldest son must take estate to be excluded from class of, 499.
period for ascertaining class, 502.
CHOSES IN ACTION,
husband entitled to wife's, when, 123.
CLASS,
contingent class, appointment to, 305.
death of member of, eiiect on power, 163.
period for ascertaining, in default of appointment, 475.
aj)pointees, 490.
survivorship of power given to, 456.
COLLATERAL
power, 8.
formerly could not be extinguished, 11.
COMMITTEE,
exercise of powers of liinatic by, 451.
COMMON LAW POWERS, 1.
execution of, as distinct from Statute of Uses powers, 175.
CONDITION,
precedent to power, 148.
of sale, 150, 151.
subsequent, 150, 298, 299, 382, 432, 433.
tacit, in power to appoint portions to younger children, 498, 499,
INDEX. 665
CONDITIONAL
alionation, 21.
appointment, 299.
CONFIDENCE,
power involving personal, 97.
cannot bo dolegatcd, 441.
CONFIEMATION
of invalid appointment, 208.
CONSENT,
death of person to, tenninatos powor, 140.
delegation of, 441.
must be given iu lifetime of donee, 138.
to marriage, 141.
dispensed with, 142.
want of, not dispensed with, 131.
CONSIDERATION
to raise use, 4.
CONSTEUCTION
of advancement clause, 402.
of executory devises, 290.
instruments, 105.
of power to jointiu-e, 517.
CONTEMPORANEOUS SETTLEMENT,
contract for, effect of, 418, 419.
not fraudulent, 417 et seq.
strangers, interests may be given to, by, 420.
CONTINGENCY,
excessive execution depending on, interim application of fund, 300.
execution of power before, 143.
power to arise on, 147, 156.
CONTINGENT
appointment, till event interest passes under residuary appointment,
300.
appointment on donee leaving children, 473.
class, appointment to, good, 305.
estates, 63.
person, general power can be exorcised by, 155.
formerly could not exercise at law by deed, 154.
before Wills Act, 155.
cannot exercise limited power, 158, 159.
remainder, since 1877... 307.
read as springing use, 289.
CONTINGENT REMAINDERS ACT, 1877... 307.
666 INDEX.
CONYEESION,
not effected by power unless exercised, 10, 548.
on appointment, 322.
CONYEYANCING ACTS,
auction, sales by, under, 555.
completion by executors of testator's contract, 75.
contracts for leases, provision as to, in, 591.
disclaimer under, 90.
husband's appointment to wife before, 288.
incumbrances, sale under, free from, 551.
receipt clause under, 547.
release of powers under, 11.
relief against forfeiture under, 630—632.
survivorship of powers under, 461, 462.
trustees, appointment of new, under, 645.
separate sets of, under, 652.
COPYHOLDS,
covenant to surrender, 103.
power may co-exist with fee in, 38.
surrender of, supplied in favoiu- of wife, 341.
COEPORATION,
included in person, 8.
powers delegated by, 444.
COSTS
action relating to appointed and unappointed fund, 254.
exchange, of, 524.
COUET
for deciding questions on wills, what as proper, 119.
COYENANT
and charge, incidence of liability on, 402.
appointment in pui-suance of, 408.
damages in respect of, 409.
not to exercise power, 16.
recital may amount to, 521.
to exercise power to jointm-e, 520.
specific performance of, 521.
to settle estate on issue excludes power to charge portions, 528.
stand seised, 4.
surrender copyholds, 103.
•will, not to revoke, 409.
to appoint by, when aided, 336.
INDEX. 667
COVERTURE,
execution of power during, 1 20.
CREATION OF POWERS,
absolute gift or power, 52 et seq.
" assigns," by force of word, 50.
charge of debts by, 79 — 82.
contingency, on, 147.
exception out of prohibition, by, 48.
executed and executory instruments, in, 103—108.
executor of executor, in, 93.
executors, in, by de\'ise, 08 d seq.
blending of realty and personalty, 72.
division into shares, 72, 73.
under 22 & 23 Vict. c. 35... 86— 89.
fee, extends ^rn?ia/acie to disposition of, 98.
general failure of issue, arising on, 113, 114.
implication, by, 48.
inheritance, words of, not necessary for enabling disposition of fee, 98.
intention, indicia of, for, 02 et seq,
married woman, in, 118.
notwithstanding covertiire, 119.
necessity, by, 49.
object of power may be anything not illegal, 110.
pei-petuity, 114.
recital, by, 48.
reference, by, 101 — 103.
inference against creation of additional powers by, 109.
repugnant to absolute gift, 64.
whore power testamentarj-- only, 06.
distinction between realty and personalty, 68.
requisites for, 48.
severance of reversion for purpose of, 63.
CREDITORS,
cannot have appointment to volunteers aided, 339.
defective execution aided in favour of, 337.
CURTESY,
estate by, not forfeited by adultery, 527.
CY PEES, 315—317.
DAMAGES,
breach of covenant to appoint, on, 409.
lessee can recover against tenant for life, 348.
recovered against lessee, who entitled to, 642.
668 INDEX.
DATE,
appointee takes from -what, 237.
DEATH,
of person -vvitli power of consent, 140.
donee's, does not cause lapse of estate of person entitled in default,
237.
joint power, of one of two donees of, 160.
■ reference to, need not make power testamentary, C6.
DEBTS,
accumulation to pay, 112.
ckargo of, creates power of sale, 79, 81.
direction to pay creates charge, 75.
to executors to pay, 77.
effect of, on execution of limited power, 18-4 ct seq.
general power, property appointed under, assets for pajnnent of, 254.
inquii-y by pui-chaser as to, where executor sells realty, 82 et seq.
leaseholds, 85.
legal estate not affected by charge of, 79.
presumption as to pajnnent from lapse of time, 84.
power of sale if personal estate insufficient to pay, 151.
powers created by 22 & 23 Vict. c. 35, to enable sale for payment of,
86—89.
purchaser from executor need not inquire as to existence of, 82.
except after twenty years, 84.
DEED,
alterations in, presumed to be made before execution, 7.
appointment by, to stranger for life with remainder to object, bad,
307.
date from which, speaks, 287.
definition of, 173.
execution of, exercising power, 134.
gift of life interest does not prevent exercise of power by, 60.
lost, 129.
power, created by, to appoint to illegitimate children, 489.
power, exerciseable by, cannot be executed by will, 172, 332.
testamentary, when, 173.
will required, execution by deed bad, 172, 332.
will, whether power exerciseable by deed or, 60.
DEFAULT OF APPOINTMENT,
death of donee does not cause lapse of estate in, 237.
effect of appointment on estate in, 275, 276.
implied gift, persons entitled under, take equally, 476.
period for ascertaining class of persons entitled in, 475.
INDEX. 669
DEFAULT OF APPOINTMENT— corj<iw«f(/.
persons entitled in, acts of, do not affect power, 24.
nominatim as tenants in common, 162.
void power does not affect estate in, 115.
DEFEASIBLE APPOINTMENT, 161.
DEFECTIVE EXECUTION,
aided in equity, when, 327 et aeq.
although donee married woman, 329.
covenant to appoint by wiU, 336.
not aided when accidental non-execution, 334.
breach of trust, execution would be, 334, 335.
execution is by deed instead of will, 332.
essence of power, 330.
non-execution, 333.
unless fraud, qn., 334.
leasing, power of, statutory aid, 351 et seq.
persons in whose favom- no relief given, 329, 335, 339, 342.
persons in whose favour relief given, 336 — 348.
charities, 340.
creditors, 338, 339.
lessee, 337.
mortgagee, 337.
persons for whom appointor under a natural or moral obliga-
tion to provide, 341, 342.
quantum of provision, 341.
purchasers for value, 336, 337.
when they have better equity than creditors, 339.
powers, of what, can be aided, 343, 345, 347.
not statutory powers, 343, 345, 347.
DEFICIENCY,
of estate charged, abatement, 251.
of personal estate, power of sale in case of, 151.
DELEGATION, 440—452.
bankruptcy, on, 450.
beneficiaries may be consulted by trustee, 441.
consent, none of power to, 443.
corporation, by, 444.
election raises no case of, 379.
excess by way of, 311.
executor, powers of, 447.
experts, consulting, is not, 441.
general power, where, 446.
guardianship of infants, 446.
judgments, operate as involuntary', 450.
670 INDEX.
DELEGATION— coHf I H»ec?.
lease, not of power to, 444.
lunatic, powers of, how exercised, 451.
ministerial acts, of, allowed, 445.
mortgage, power to, authorizes insertion of power of sale, 448 — 450.
necessity, in case of, 443.
ownership, powers of, 446.
personal confidence, none of power involving, 441.
Settled Land Act, none of powers under, 444.
trustee, by, of management of property abroad, 443.
for sale, 443.
of power to give receipts, 547.
Uses, none of powers operating under Statute of, 445.
will, powers exerciseable by, do not pass to trustee in bankruptcy,
450.
DEMISE,
will not support appointment of fee, 4.
DESIGNATED PERSONS,
exercise of contingent power by, 144.
DETEEMINABLE POWEES,
must be exercised before event, 160.
DEVISE,
to uses operates under Statute of Wills, 6.
DEVISEE,
in tiTist, sale by, 86.
DISCLAIMER,
Conveyancing Act, under, 90, 91, 462.
executors, by, relates back, 90.
implied power of sale of, 91.
lapse by, 245.
DISCRETIONARY POWER,
effect of bankruptcy on, 25.
leasing power is, 444.
refusal by trustees to exercise, 46.
DISTRESS,
by remainderman, 616.
DIVORCE,
effect on powers, 39.
variation of settlements by Court, 39 et seq.
INDEX. 671
DOMICIL,
effect on will, 131, 132.
DONEE,
death of, does not cause lapse of estate in default, 237.
duty of, to exGCuto power, when, 463.
married woman, trustee in bankruptcy cannot exercise general
power of, 450.
of general power can appoint to himself, 8.
parent, quccre able to be donee and object, 492.
DOUBTFUL TITLE,
how far forced on purchaser, 81.
DOWER,
forfeiture of, on adultery, 39.
DUTY,
disclaimer to reduce, 245.
legacy, 279.
power coupled with, cannot be released, semhie, 12.
probate, 278.
succession, 282.
on sales under Settled Estates Act, shifted to purchase-
money, 283.
on sales under Settled Land Act, 284.
ELDEST SON,
meaning of, 500.
settlor must stand in loco parentis, 502.
ELECTION,
appointments under powers, applies to, 377 — 382.
absolute, necessary, 377.
followed by modifications, 380.
compensation, disappointed donee entitled to, 383.
out of what property, 384.
default, gift to person entitled in, and ajipointment to stranger, 379.
delegation, 379.
derivative title, 381.
effect of, 386.
exclusive appointment, 379.
heir, 393.
implied, 391.
incapacity of appointee to accept, 393.
to give up, 384.
infant, 385, 380, 390.
672 INDEX.
ELECTION— continued.
instrument, nono between tr^o clauses in same, 380.
knowledge necessary, 390, 391.
lapse of time not usually implied from, alone, 392.
limited power, between two appointments tmder, 384.
married woman, 385, 386, 387.
partial interest, when testator bas, 389.
persons to wbom principle applies, 385.
presumption of, 392.
principle of, 3V6.
limits of its application, 380.
property to wbicb it applies, 385.
requisites of binding, 390.
for raising case of, 388.
revocation of absolute appointment and gift to ajipointoo, by, 379.
in excess of power, 380.
satisfaction, q. v., 395.
successive appointments in same instrument, 381.
tenant for life by, effect of, 386.
valid appointment with improper condition, 382.
will and property taken under derivative title, none between, 381.
ENTRY,
by lessee, 355.
EQUALLY,
wben Court gives to objects in default of appointment, 476.
unless author has laid down a rule, 477.
EQUITABLE POWEES, 2.
EQUITY,
appointments in substantial accordance with expressed piu-pose of
power, good in, 319.
estate appointed instead of proceeds of sale, good in, 321.
jointure, appointment to trustees for wife, good in, 320.
proceeds of sale appointed instead of estate, good in, 320.
EQUITY OF EEDEMPTION,
parol evidence admissible to rebut presumption of appointment of,
167.
resen^ation of, if alone, does not operate as appointment, 165.
vdfe joining in mortgage, 166.
ESTATE,
appointed instead of proceeds of sale, 321.
INDEX. 07;3
ESTATE TAIL,
created by doviso to A. and his cliildren, wlien, 401.
whether power is paramount to, 20.
E^^DENCE,
appointment by way of mortgage, of intention to resettle, IGo, 108, 171.
recital not necessary, 170.
estate of testator, as to, on question of execution of power, 229.
whore testatrix is married, 230.
when specific fund mentioned, 231.
intention to execute power, of, 170 et seq.
from nature of limitations, 225, 220.
married woman, of separate estate, in action against, necessary, 265.
onus of proof, volunteer and purchaser, 199.
appointment fraudulent, 413.
parol, admissible to rebut presumption of equity, 167.
inadmissible to show intention not to execute power, 268.
EXCESSIVE EXECUTION,
absolute appointment with modifications in, 301, 313.
alternative gifts, perpetuity, 297.
contravening power, 305.
charge, object takes free from unauthorized, 299.
condition annexed, 299.
contingent, destination of fund meanwhile, 300.
class, appointment to, 305.
cy-pres, 315 — 317.
deed, legal estate appointed to stranger for life, remainder to object,
bad, 307.
delegation, 311.
estate larger than authorized, 317.
estate different from that expressly authorized, 318 — 326.
lease, for longer term than authorized, good^^ro tanto, 318.
perpetuity, 286—298.
severable, excess rejected if appointment is, 298 — 301, 312 — 315,
317, 318.
succession, appointment to stranger, and objects in, 306 — 310.
will, legal estate appointed to a stranger for life, remainder to object,
good as to latter, 309.
EXCHANGE,
cost of, 524.
partition authorized by power of, when, 556.
power of, usual, 544.
EXCLUSIVE POWER,
appointment under, which exhausts fund, fails, 365.
but might be made good by event subsequent, 366.
what is exclusive, 370.
creation, words apt for, of, 362. •
F. XX
r>74 INDEX.
EXCLUSIVE POWEE— coh^i'h ued.
"all and every," 363.
death of one or more of objects, 162, 163.
defiuitiou, 362.
event, appointment bad in inception may be good in, 366.
11 Geo. 4 & 1 WiU. 4, c. 46... 162, 372.
hotchpot, 367—370.
iUusory, 371, 373.
Lord St. Leonards' Act, 372.
construction of the Act, 373.
Lord Selborne's Act, 374.
construction of the Act, 374, 375.
non-exclusive, 363.
"such," 363.
EXECUTED INSTRUMENT,
hotchpot clause not implied in, 367.
issue not restricted by subsequent words in, 496,
powers in, not cut down except by express words, 103.
EXECUTION,
attestation clause, form of, 135. •
" beneficial power," 186.
blending of appointed fund and residue, 184.
condition precedent, 148.
consent to, when precedent, 131.
contingency, to arise on, 147.
before, of present power, 144.
contingent person by, 154.
not if power limited, 159.
deed, presumption of due, in lost, 129.
defective, q. v., 327.
deteiToinable power, 160.
domicil, by will executed according to law of, 133.
equity, what is sufficient, in, 318 — 326.
essential requisites must be observed, 131.
estate and power, where man has both, 266, 267.
excessive, q. v., 285 — 326.
felon, by, 116.
formalities of, statutory alteration as to, 131 — 135.
foiTim for deciding question of, by will, 119.
general power, of, q. v., 228, 229.
and limited, distinction between, present to appointor's mind,
190.
grant, how far, 266, 267.
instrument of, 172.
INDEX. 675
EXECUTION— con«/H«e(Z.
intention not to execute, 19G, 205.
to execute, 17G et se(j.
what sufficient, 191, 194.
invalid appointment, not-vsdthstanding previous, 201.
limited iwwcr of, q. v., 183.
not by will made before creation of power, 22G, 227.
married woman, by, 11(5 — 123.
non-existent power, of, 156.
one power of, by execution of another, 197.
period for i)erfecting, 131, 138.
probate necessary, if will made in, 134.
property and power, distinction between present, to appointor, 189.
purchaser, in favoxir of, 199.
revocation, of powers of, 208.
security, by way of, 168.
several instruments, by, 175.
technical words not necessary to, 175.
transfer, by signing, 178.
transmutation of estate by, 1.
volunteers, in favour of, 199.
will, by, made before creation of general power, 222 — 225.
limited power, 226, 227.
general devise in, of general power, 227, 228.
in absence of contrary intention, 227, 228, 235.
secHS, before "Wills Act, 227.
limited power by contingent person, 159.
EXECUTOES,
acting, sale by, under 21 lien. 8, c. 4... 89.
as to Ireland, 91.
administration decree, effect of, on power of, 41, 44.
appointed fund, entitled to receive, 325.
appointment to, effect of, 56.
of appointor, effect, 243.
completion of testator's contract by, 75.
creation of charge by dii-ection to pay debts, 75.
where executors directed to pay, 77.
where estate devised to one or to several unequallj',
78, 79.
creation of power in, or gift in fee to, 68.
by charge of debts, 79.
by dii'ection to sell without naming vendor, 69 et seq.
blending of realty and personalty, 72.
equitable, not legal estate, affected by, 79 — 82.
mere division into shai-es, 72, 73.
X X 2
67(1 INDEX.
EXECUTOHS— continued.
delegation of powers of, 447.
executor of, lias power of executor, 93.
inquiries as to debts by purchaser from, under implied power, 82.
as to leaseholds, 85.
mortgage by, to raise money to pay debts, 89.
powers given to, by 22 & 23 Vict. c. 35... 86— 89.
probate, acts of, before, 95.
renouncing, may purchase, 92.
sale to themselves, bad, 92.
surviving executors, sale by, 92.
where executors are personally meant to act, 97.
EXECUTOEY DEVISE,
rules of construction respecting, 290.
EXECUTORY GIFT,
to object in defeasance of gift to stranger, good if event happens, 303.
to stranger, in defeasance of gift to object, 302.
EXECUTOEY INSTRUMENT,
construction of powers in, 105.
of "issue" in, 494, 495.
hotchpot clause in, 367.
EXTINGUISHMENT,
acquisition of fee, by, 31.
administration decree, by, 41 — 46.
alienation of i^articular estate, by, 19.
alternative powers, 37.
collateral power, 1 1 .
covenant may operate as release, 16, 17.
although voluntary, 16, 17.
disclaimer, 90, 461, 462.
divorce, does not effect, 38.
exercise, not necessarily, by, 35.
fine or recovery, by, 17.
implication, by, 16, 17.
judicial separation, does not effect, 39.
limited powers, of, 16.
married woman, powers of, 18.
merger, 31, 32.
mortgage, of powers in, 17.
nulUty of marriage, decree for, effect on powers, 39.
payment into Court by trustee, 46.
purposes completed, 32.
where appointees are under disability 34.
INDEX. 677
EXTINGUISHMENT— f OH <j» »fc7.
recital may amotmt to af?rooraent to release, 17.
release, 16.
re-marriage, possibility of, docs not effect, 4 1 .
testamentary powers of, IG.
"FAMILY," 505, 50G.
FAMILY AEEANGEJ^IENT,
distingiushed from fraudulent appointment, 421.
FEE,
appointment of, demise will not support, 4.
merger in, of power given to owner of particular estate, ;J1.
power may co-exist with, 38.
smaller interest may be given where power to appoint, 32.
words of inheritance, jjower extending to, without, 9fS.
FELON,
execution of power by, IIG.
FINES
and recoveries, destruction of powers by, 17.
FOEFEITUEE CLAUSE,
must be within limit of perpetuity, 293.
FEAUD,
reappointment where former appointment invalid from, 203.
semhle, non-execution may be aided if there is, 334.
FRAUDS, STATUTE OF,
must be satisfied, 174.
FRAUDULENT APPOINTMENTS, LiO*^
acquiescence, 404, 415.
advancement, under powers of, 404.
antecedent agreement, 415 et seq.
bargain for purchase of child's share on appointment to him, 401
for benefit of stranger, 416.
benefit, when appointor may, 409.
when benefit to him avoids appointment. Ho et seq.
bond fide, execution of power must be, 403.
building lease, to enable, is not necessarily, 410.
condition, 298, 299, 382, 432, 433.
confinnation, 404.
contemporaneous settlement, -ill et seq.
coiTupt purpose, 405.
678 INDEX.
FEATJDULENT ATPOINTMENTS-con^j'nMerf.
family arrangement, 421.
foreign piu'i^ose to po-wer, 421.
intention of author collected from deed only, 424.
forfeiture clause, 423.
grandcHlili-en, interests given to, by way of settlement, 420,
in part only, 404.
infancy of appointee, 412.
issue of marriage, cannot support fraudulent apj)ointment to parent,
431.
Jew, forfeitui-e on marrying anyone but, 423.
joint power, under, 404.
jointui'e, severable, 434.
jointiu'ing power under, 433 et seq,
liability of appointor, 405.
trustees, 414.
Married Women's Property Act, 1882... 420.
motive and pui-pose, distinction between, 428.
onus pruhandi, 413.
purcbaser for value, witb legal estate and without notice, 429.
purchase of child's share by father, 407, 408.
purpose, material, 405, 421.
reappointment, effect on, 203, 204.
residence abroad, appointment conditional on, 423.
release, 15, 408, 439.
repudiation of condition, 425.
residence abroad, 423.
revocation, 411.
severance, 431.
trustees' consent, 408.
costs, 414.
liability, 414.
ultimate limitation to appointor not necessary, 411,
GENERAL POWERS,
appointment to executors makes property testator's, 243.
trustees makes property appointor's, 244.
assets, property appointed is, for payment of debts, 254.
by married woman, qiicere, 256, 257.
child, lapse of appointment to, prevented, 236.
limitation to, in default, not repugnant to general power in
executed deed, 103.
contingent person, may be exercised by, 154.
donee of, may appoint to himself or his own executors, 8.
definition, 7.
tinder Wills Act, 233.
under Probate and Legacy Duty Acts, 280.
INDEX. 679
GENERAL VOWEH^— continued.
execution of, by what words, 228, 229, 2.'}3.
by will, when executor entitled to receive fund, 325.
whether property appointed for all purposes, 237.
execution and intention necessary, 178.
lapse, sect. 33 of Wills Act applies to, 23G.
Legacy Duty Act, for the purposes of, 280.
life estate, ^vith, 322.
married woman, exercise of, by, 257 — 265.
perpetuity, 286 et seq.
postponing period of distribution does not prevent execution of, 7.
real estate, evidence of state of testator's property admissible in case
of, 229.
recital, 177.
specific fund, evidence of state of testator's property if, 231.
will made before creation of power may exercise, 222 — 225.
even if words of futurity in instrument creating the power, 225.
power to appoint by, is, 7.
Wills Act, before, 227.
sect. 27, general gift executes, 227, 228.
what are sufficient general words, 228, 233.
GLPT,
in default, extent of, 476.
GIFT OVER,
in default of objects of power, 467.
power to appoint among objects without, 466.
GRANDCHILDREN,
not objects of power to appoint to children, 493.
GROSS, POWER m,
infant cannot exercise, 125.
interest may be charged where there is power to charge a gi'oss sum,
321, 535.
power in, 9, 27.
extinguishment of, 27 — 31.
GUARDLVNSHIP,
of infant, 446.
HEIR,
childien and their heirs, power to appoint to, 493.
disclaimer of trustees will not transfer powers involving discretion
to, 460.
election by, 393.
remainder to, rule in SJielley^a case, 56.
080 INDEX.
"KEIES OF THE BODY," 57, 506.
HEEIOT, 623.
HOTCHPOT CLAUSE,
distiuction between deeds poll aud inter partes, 369.
not implied in executed instruments, 367.
ayments once made, when final, 369.
two settlements with distinct, 370.
what property is brought in, 370.
interest thereon, 370.
when ajipointment operates to introduce, 368, 369.
HUSBAND,
appointment to wife by, 8, 288.
covenanting business shall be wife's, authorizes advancement, 324.
debts, payment of husband's, when advancement of wife, 324.
defective execution not aided in favour of, 342.
object, not proper, of power of appointment to wife, 323.
wife advanced by lending money to, 324.
wife's separate property, right to, at her death, 122.
ILLEGAL,
object of power must not be, 110.
ILLEGITIMATE CHILD,
childi-en, prima facie not object of power to appoint to, 487.
description of, 488.
" family," 505.
futiu-e, provision for, bad, 489.
repute, 488.
IMPEEATIVE TEUST,
conversion effected by, 10.
IMPLICATION,
creation of power by, 48.
executors, of powers of sale in, 79.
reference by, of powers, 101.
release of power by, 13, 14.
restriction of general power by, 103, 105, 119.
sale, of power of, 48,
insertion of power by, 546.
survivorship of powers by, 461.
INDEX. 681
IMPLIED GIFT,
cliaritios, to, 468.
contrary intention expressed in will prevents, 469.
discretion to exclude does not negative, 470.
gift over in default of objects, 467.
none, if gift over in default of appointment. 471.
unless gift over on event which docs not happen, 171.
period of vesting, 472.
power to appoint to objects, no gift over in default, 466.
INCOME,
tenant for life paying interest in excess of, o40.
unlimited gift of, gives capital, 54.
INCOME TAX
on jointure, 523.
INDORSEMENT,
power reserved by, 7.
INFANT,
advancement, no repaj'mcnt, 324.
advowson of, 125.
aUonation by, 123.
appointment to, not necessarily fraudulent, 411.
consent of, dispensed with, 130.
election, 385, 386, 390.
execution of power by, 124.
guardianship of, 446.
lease by, 643.
Hmits of power of, 125.
renewal by, 591.
reversionary property appointed, settlement of, 420.
Settled Land Acts, provisions as to, 572.
INHERITANCE,
power to dispose of fee may be created without words of, 98, 99.
INSTRmiENT IN WRITING,
definition of, 173.
INTENTION,
contrary, within Wills Act, 235 et seq.
evidence of state of testator's property, 229 — 233.
not to execute, when express, 196.
of testator exercising general power to take property out of instru-
ment creating jiower, 237.
appointment to trustees for appointee, 238.
to testator's trustees, 238, 239.
direct, 239.
682 INDEX.
INTENTION— coHfi'HHetf.
requisites to show, 176.
sufficient indications of, what are, 191 — 193.
to execute power, parol evidence of, inadmissible, 268.
necessary, 178, 20o.
to revoke, 209.
INTEEEST,
at what rate, 536.
charge of, authorized by power of charging gi'oss sum, 321, 535, 537.
tenant for life must keep down, 537.
action against, for not keeping down, 538, 539.
account against, extent of, 541.
paying in excess of income, 540.
INTEELINEATION,
power inserted by, 7.
INVALID
appointment, effect on subsequent appointment, 201.
when fraudulent, 203.
limitations over, where no absolute appointment, 313.
power, does not affect Limitations in default, 115.
INVESTMENT,
change of, is not exercise of power of appointment, 178.
ISSUE,
" die without," in will before Wills Act, 114.
meaning of, 58, 59, 494.
no restriction of, by subsequent words in executed instrument, 496.
restriction of, by subsequent words in executory instrument, 494.
JOINT TENANCY,
created by gift to several by name, 491.
" relations," 507.
JOINTUEE,
apportionment, 525.
arises de die in diem, 524.
clear value, 522.
construction of power, 517.
covenant to exercise power to, 520.
specific performance, 521.
subsequent incapacity to execute, 52(
as to value, 521.
dower, when barred by, 526.
exchange, cost of, 524.
exerciseable from time to time, 518.
forfeited by adultery, not, 527.
INDEX. 683
JOINTUEE— rcH^H ued.
fraudulent exercise of power, 434.
future use, power operates as, 3.
gift of, "without any deduction," 523,
income tax, o23.
possession, usually power only oxerciseablo in, 519.
priority of power, 512 — 515.
succession duty, 523.
taxes, appointing free from, 522.
trustees, appointing estate to, for, 320.
usual power, is not, 51(5.
value, lands of certain, 524.
wife, whether appointee must be, when power takes effect, 527.
future, power to vary marriage articles does not authoiize, 323.
second, 517, 518.
" wife's fortune," in proportion to, 526.
JUDGMENT,
operation as execution of general power, 450.
JUDICIAL SEPAEATION,
powers not extinguished by, 19, 39.
KINGSDOWN'S (LOED) ACT,
domicil of testators, 132.
LAPSE,
abatement, 250.
aliquot shares, whore appointment in, 246.
appointment of property charged with gifts which lapse, 249.
charge created iinder power, of, 542.
disclaimer, by, 245.
effect on exercise of power, 236.
where legacies exceed estate, 253.
exclusion of, 250.
limited power of appointment under, 245.
married woman testatrix, 240, 242.
profit by, who takes, 253.
residue of lixed sum where appointed, 246.
api^ointed as, 247, 248.
resulting trust, when, 237, 238.
"Wills Act, s. 33, applies to general powers, 236.
not to limited powers, 236.
"LxiST WILL," 211.
684 INDEX.
LEASE,
acceptance of rent confinns voidable lease, 352, 356.
does not confirm void, 356.
agi'ecment for, is not generally a lease, 355.
benefit of estate, power must be exercised for, 589.
building, 596, 640.
under Settled Land Act, 597, 639.
charity lands, 318, 609.
commencement, 593, 616.
concuiTent, 619.
contract for, 589.
by predecessor in title, 590.
by tenant for life, 591.
specific performance of, 592.
counterpart, 634.
covenant to lay out money in improvements, 622.
damages for breach of covenants in, who entitled to, 642.
defective execution, aided, 337, 345.
damages against tenant for life, 348.
statutory aid, 351 et seq.
determinable, 610.
discretionary power, is, 444.
distress, by remainderman, 614.
overt, 633.
easement, 597.
" entry " by lessee, 355.
excess of power in, agreement to grant, 348.
fair, 598.
fine, 613.
forfeiture, relief against, under Conveyancing Act, 630.
underlease, relief under Conveyancing Act, 1892... 631.
fraudulent, to effect building lease, not necessarily, 410.
futuro, in, 612.
generality of power limited to caiTj^ out intention, 601.
heriot, 623.
implied power to, in trustee, 593, 595.
improvements, covenants to spend money on, 622.
indefinite power, 608.
infant, by, 643.
renewal by, 591.
joining strange tenements, 599, 602.
land subject to two settlements, 598.
unlet previously, 601.
usually demised, 600.
under Settled Land Act, 597.
lives, for, 609, 611.
nature of power to, 588.
INDEX. 685
LEASE —C07it in ued.
mansion house, 573, 000.
mines, 602.
open, what arc, G04.
produce of, 605.
under Settled Land Act, 605.
mortgagor, to himself by, 564.
possession, in, 611, 615, 618.
re-entry, 629, 632.
relief against, 630, 631.
rent, advance in, 626.
ancient, 624.
apportionablc, is, 625.
best to bo reserved, 613.
not necessarily highest, 614,
definition, 614.
improvements, covenant to spend money on, 622.
incident to reversion, 626.
payment of, 625.
in advance, 626.
reservation of, 614, 627.
uniform, should be, 624.
usual, 624.
yearly, 625.
repairs by tenant, 635.
repairing, 641.
reservations and exceptions, difference between, 634.
reversion in, 611, 618.
distinguished fi-om lease in futuro, 612.
Settled Land Act, under. See Settled Land Act.
specific performance of agreement to grant, 318, 592.
statutory aid to, 351, 389.
surrender of, 617, 620.
presumed, when, 616.
suspension of power to, by grant of tenn, 26.
tenant for life, to himself by, 564.
term, what authorized, 607.
indefinite power, 608.
under Settled Land Act, 597.
for less than authorized, good, 610.
for longer than authorized term, qoo^ pro tanto, 318.
except as to charities, 318, 609.
trust estate with other estate, 554.
trustees, without express powers, by, 593.
for sale, 595.
underlease, forfeiture of superior lease, 618.
686 INDEX.
LEASE — contin ued.
usual covenants in, 638.
power, is, 596.
void and voidable, distinction, 356.
waste, 604, 634.
peiinissive, 635.
rejection of clause against, 604.
LEASEHOLDS,
executors can sell, 85.
mortgage of, in exercise of wife's general power, 167.
LEASING, POWER OF. See Lease, and Chapter XVII.
whether suspended by grant of tenn by donee, 26.
"LEAVE,"
implies that power is testamentary, 62.
LEGACY,
duty, 279, 280, 281.
execution of general power by, 234.
limited power by, to object, 180.
identity of amount with fund subject to power, 180.
LEGAL ESTATE,
charge of debts does not affect, 79.
passed by donee of common law power, 1.
LIMITATION,
invalid, and no absolute appointment, 313.
words of, how far necessary in appointment, 289.
LIMITATIONS,
analogy of Statute of, applies to debts of married women, 264.
mortgagees with title imder statute can sell ujader theii' power, 34.
LIMITED POWER,
absolute estate in default, not repugnant to, 107.
contingent person by, 159.
definitions, 7, 233.
general words may suffice to execute, 183.
legacy to object, exercise by, 180.
objects of. See Object.
perpetuity, 286 et seq.
receipt of appointed fund, what trustees entitled to, 325.
release, cannot be executed after, 16, 438.
revoked by a revocation of "all bequests in favoui' of" the donee, (
INDEX. 687
LIMITED 'POWRR—coyitinued.
will made boforo creation does not exercise, 22G, 227.
Wills Act, s. 27, does not apply to, 226, 227, 233.
Wills Act, 8. 33 . . 236.
LOST DEED, 129.
LUNATIC,
delegation of powers of, 451.
donee of power of appointing trustees, 650.
exchange of laud of, 301.
Settled Land Act, provisions as to, 573.
MAINTENANCE,
power of, not generally controlled, 45.
appointment to husband not a good execution of power to direct, 323.
trust for, 483.
uncertainty of amount no objection to trust for, 483.
where shares have been appointed, 288.
MALINS' ACT, 18, 117.
MANAGEMENT,
powers of, 21.
after decree for administration, 41.
MANSION HOUSE,
Settled Land Act, provisions as to, 573, 600.
MAREIAGE,
children of any, when objects of power, 491.
consent to, 141.
power to appoint on, 292.
revocation of will by, 215, 216.
reversionary property, settlement of, on, 420.
MAERIED WOMEN,
absolute interest, limitations amounting to, 257.
assets, property subject to power, how far, 257 — 265.
effect of Act of 1882... 264.
bankruptcy, 265.
consent of, when of unsound mind, 131.
contingent power, 156.
contracts of, before Act of 1882. .264.
where no separate estate, 265.
Coui't proper for deciding questions of execution by will of, 1 19.
688 INDEX.
MAEEIED WOMEN— fOHini»fcf.
debts, may appoint for payment of, 263.
defective execution aided, though donee is, 329.
election by, 385, 386.
evidence of separate estate of, when necessary, 265.
execution of powers by, 116 — 123.
funeral expenses of, out of appointed property, 263.
general engagements of, 256, 263.
general power, donee of, 242.
execution of, not compelled in bankruptcy, 265.
gift to, 54, 55.
husband's death, power arising on, 156.
lapse, where testatrix is, 240, 242.
Limitations, Statute of, applies to debts of, 264.
mortgage of, reservation of equity of redemption in, 165.
presumption that will executes power of, 230, 231.
release of power by, 18, 117.
restraint on anticipation, 19, 295.
restriction of general power by implication, 103, 105, 119.
second coverture, execution of power during, 118.
separate use, 120 — 123.
ceases at death, 122.
does not arise till coverture, 122.
remainder to, where power has not arisen, 156.
Settled Land Acts, provisions in, as to, 572.
trustee in bankruptcy cannot exei'cise power of, 451.
MAEELED WOMEN'S PEOPEETY ACT,
effect of, on powers of disposition, 157.
on general engagements, 257 — 265.
sects. 1 and 4 . . . 264.
IMAESHALLING, 514.
MEEGEE,
extinction of powers by, 31.
of charge, 32.
MINE,
lease of, 602, 605.
open, what is, 604.
IkHNEEALS,
sale of land apart from, 360.
MIXED EUND,
appointment of, 322.
MONEY,
power to lend, 30.
INDEX. G89
MORTGAGE.
administrator of traneferoo, sale by, 454.
appointment by way of, and on express trusts, difference between,
171.
extinguishment of powers in, on transfer, IT.
general power, in exercise of, 165.
lease by mortgagor to himself, 564.
purchase by mortgagor from first mortgagee, .jOl.
reservation of equity of redemption, 165.
sale, power of, may be inserted in, 448.
wife joining in, presumption, 166.
MORTGAGEE,
may sell under power, though ho has title under Statute of Limita-
tions, 34.
power of sale, duties of, in exercising, 550, 553.
joining other mortgagees in exercising, 554.
proviso qualifj-ing, 150.
sale by, leaving part of purchase-money outstanding, 560.
MORTMAIN, 340.
MOTIYE
and purpose distinguished, 428.
" MY PERSONAL ESTATE,"
gift of, executes general power, 228.
"MY REAL ESTATE," 229.
" NEAREST RELATIONS," 508.
NECESSITY,
power implied from, 49.
NEPHEWS AND NIECES, 494.
NEW TRUSTEES,
abroad, when trustee, 649.
alienation, power of appointing, can be exercised after, 21.
appointor nominating himself, 654.
bankruptcy, 050.
beneficiary appointed, 654.
continuing trustee, 648.
Conveyancing Act, 1881, s. 31... 645.
applies for purposes of Settled Land
Acts, 646.
when this power arises, 647.
F. Y V
fi90 INDEX.
NEW TEUSTEES— co»^-;*He(7.
costs of appomtment, 655.
death of sole trustee before testator, 648.
declining, 649.
executors of deceased trustee are not bound to act, 647.
mean acting executors, 648.
foreigner appointed, in what cases, 653.
incapable to act, 649.
lunacy of donee, 650.
trustee, 650.
notices to predecessors, liability for, 655.
number, diminisbing, 651.
augmenting, 650.
persons to be ai")pointed, 653.
residence abroad, 649.
retii-ing, Hability for trust funds in peril, 656.
separate sets of, 652.
Settled Land Act, 43, 646.
"siuTiving" trustees, 647, 648.
variation of power of appointing, on divorce, 40.
void appointment, old trustees can act, 655.
NEXT OF KIN,
limitation to, 55.
NON-EXECUTION,
accidental, no relief against, 334.
unless fraud, semhle, 333.
NON-EXISTENT,
power wbich proves to be, 156.
NULLITY,
decree of, effect on settlement, 39.
OBJECT,
appointment to, jointly with stranger, good if severable, 312.
fails if not severable, 313.
child, prima facie legitimate, 487.
illegitimate, 488, 505.
childron, power created by will to aj^point among, is limited to those
existing at testator's death, 490.
unless clear intention, all children should be included, 490.
children of what marriage, 491.
INDEX. 691
OBJECT— continued.
children substituted for parents, 497.
" and their heirs," 493.
death of, 162.
douee, parent, (ju., able to be object also? 492.
oldest son, 500.
exclusive and non-exclusive powers, of, 362 — 375, 487, 504, 505.
" family," 505.
gift in shares to bo apportioned by third person, 466.
gift over, power to appoint without, 466.
grandchildi'on, 493.
heirs of the body, 506.
husband of, 323.
" issue," restiicted by subsequent words in executory instrument, 495,
secus, if instrument executed, 496.
" nearest relations," 508.
" nephews and nieces," 494.
of limited power, 486 — 510.
only, 161.
parents, substitution of children, 497.
"poor relations," 508.
relations, 504.
wife and childi'en, 491.
younger children, 498.
ONUS PROBANDI,
appointment fraiidulent, 413.
intention to execute power, on volunteer, 199.
OPEN MINE, 504.
OPTION,
trustees for sale cannot give future, 554.
OWELTY
of exchange, 554.
OWNEE,
act of man with power and interest attributed to latter, 266.
unless act void on this consti'uction, 266.
estate passed in way not expressed, to effectuate intention, 267.
gi-auting estate and oxercisiug power, 266.
OWNERSHIP,
delegation of power of, 446.
dominion of, distinct from power, 1.
power of, 8.
Y y2
fi92 INDEX.
PARENT,
bargain with children on appointment, 407.
donee and object, 492.
purchase of child's share, 407, 408.
PAEOL
evidence admissible to rebut presumption of equity, 167.
not admissible to show intention, 268.
trust, when good, 174.
PARTICULAE POWER,
perpetuity, donee can appoint to no one to whom creator of power
could not appoint, 286.
creation by will, 287.
PARTITION,
when authorized by power of exchange, 556.
PAYMENT
into Court by trustee, effect on powers, 46.
of portions, 532, 534.
postponement of, when authorized, 325.
PENDENTE LITE,
appointment, effect of, 45.
PERIOD,
for execution of powers, 36, 138 et seq., 142, 160, 164, 518, 519.
of vesting, where gift is to a class, 472.
where no direct gift, 474.
of executory devise, 290.
younger children, for ascertaining class of, 502.
PERPETUITY,
accumulation, trusts for, 112.
alternative events, appointment on, 296.
creation of powers, with regard to, 114, 115.
excess by way of, 286, 292.
executory devises, 290, 291.
forfeiture, gift over on, 293.
general failui-e of issue, power arising on, 113, 114.
general powers, 280.
life estate with general power of disposition, 292.
by will only, 292.
limitation over, on gift void for, 296.
maiTiage, contingency of, may avoid appointment, 292.
object of power must not be to create, 110.
particular or limited powers, 286.
possibility on a possibility, 286, 294.
INDEX. 693
PERPETUITY— co/i<t«((frf.
power of sale unlimited in time, 33, HI.
restraint on anticipation, 29o.
revocation of uses and resettlomont, Ilo.
soverablo gift on appointment, 291, 294, 296, 298.
term, power annexed to overriding, 113.
testamentary general power, 286.
unborn child for life, remainder over, 293.
unborn child of unborn person, 294.
woman past child-bearing, 295.
PERSON
includes females, 18.
PERSONAL REPRESENTATIVES,
Limitation to, 55.
PERSONALTY,
the Covu't cannot look beyond the will in a gift of, 229.
imless specific fund referred to, 231.
PLATE,
gift of use of, 53.
"POOR"
relations confined to statutory limit, 508.
unless selection authorized, 508, 509.
PORTIONS,
ademption and satisfaction, 394 — 402.
seciu'ed on reversionary interest, 532.
vesting of, 530.
when, may be given childien of second marriage, 323.
when payable, 532.
POSSESSION,
jointure, power to, exerciseable only in, 519.
POSSIBILITY,
rule against double, 286.
POWER,
administrative, 152.
appendant, 9, 19, 20.
biu'donsome, 152.
collateral, 8.
common law, 1.
definition, 1.
equitable, 1, 2.
694 INDEX.
TO^ER— continued.
general, 7.
gross, in, 9.
implied, 2.
limited, 7.
particular, 28G, 287.
primary, 36, 274.
rejiugnaut, 34.
secondary, 36, 274.
trust, distinguished from, 9, 452.
Uses, operating under Statute of, 1.
PEECATOEY TEUSTS, 478—485.
following absolute gift, 479.
uncertainty of subject, 482.
maintenance, 483.
object, 483.
PEIMAEY POWEE,
partial exercise of, does not prevent exercise of secondary power over
unaffected property, 36, 164.
revocation in case of, 274.
successive executions of, 273.
PEIOEITY
marshalling, 514.
of estates created under powers, 511.
of jointure, 515.
of powers created by the same instrument inter ee,
of powers of sale, exchange, and partition, 516.
PEOBATE,
acts of executor before, 94.
costs of, and duty, how borne by appointed and unappointed estates,
254.
Court, jurisdiction of, on questions of powers, 119, 120.
duty, 278—280.
effect of, 134.
execution of power, necessary to, 134.
Colonial will, 134.
wills, what entitled to, 133.
PEOCEEDS OF SALE,
appointment of estate instead of, 321.
PEOPEETY,
distinction between, and power present to appointor's mind, 189
514.
INDEX. 695
PEOTECTOR OF SETTLEMENT,
surviving, consent of, 141, 455.
PUECHASEE,
defective execution aided in favour of, 335, 337.
distinction between appointment to, and volunteer, 199.
issue, whetlicr they are, on fraudulent api)ointment, 431.
notice, with, bound by lease by tenant for life, 350.
value, for, without notice, and with legal estate under fi'audulent
appointment, 429.
value, for, must be from appointee, not appointor, 431.
PUEPOSE,
material in fraudulent appointments, 405.
motive and, difYorence between, 428.
non-communication of, immaterial, 421 et seq.
EEAL ESTATE,
appointment of, not execution of power to charge, 181.
deed, appointment by, of life estate in, to stranger, remainder to
object, bad, 307.
execution of powers dealing with, must satisfy Statute of Frauds, 174.
powers relating to, 9.
" relations " may take in default of appointment, 507.
sale of, by executors before probate, 91.
testator's estate, circumstances of, examined by Court, if, 229.
will, appointment by, of life estate in, to stranger, remainder to
object, good, 308.
BE -APPOINTMENT,
of fund invalidly appointed, 201, 208.
where fraud, 203—207.
where first appointment set aside, 207.
EECEIPT,
clause, 322.
implied authority to insert, 546.
statutory power of trustees to give, 547, 577.
EECITAL,
covenant may amount to, 521.
creation of power by, 48,
donee has appointed, executes power, 194.
intention to appoint inferred from, 177.
object is entitled, that, will not execute power, 194.
exception to this, 195.
release power, may amount to agreement to, 17.
696 INDEX.
EECOYEEY,
extinguisliment of power by, 18.
EE-ENTEY, 629.
relief against, 630, 631.
EE-EXECUTION,
appointment set aside, in case of, 203.
confiiTaation by, 204.
fraud, invalidity caused by, 203.
intention, necessary to, 205.
invalid appointment, of, 202.
EEFEEENCE,
additional powers, inference against creation of, by, 109.
"all powers " to, may execute some only, 187.
beneficial power, to, 186.
creation of power by, 101.
to persons to execute, 102.
to charge, by, 541.
death to, does not make power testamentary, 60.
express power, to, where implied power also, 198.
incorporates trusts and powers, but not time of accruer of benefits,
102.
joint power, to, where single, 198.
one estate, to, where power extends to two, 182.
power, to, where there are several, 187, 197.
power, to, or property subject to power, necessary, 176 et seq.
special power to, not always included in, to "all powers," 187.
subject-matter, to, intention to execute, 179.
to part of, how far sufficient, 180 — 182.
" such or the like " trusts, meaning of, 103.
wrong power to, may suffice, 186, 197, 198.
" EELATIOXS," 504.
default of appointment, taking in, 507, 508.
joint tenants, taking as, 507.
" nearest," 508.
next of kin according to the statute, 506.
" poor," 508—510.
real estate, can take, 507.
shares in which they take, 507.
wife not included in, 505, 507.
EELEASE OF POWEE,
alienation of particular estate, 19.
equitable, 13.
manied woman, by, 18, 117.
INDEX. 697
EELEASE OF VOVfBU—co,diniud.
recital may amount to agreement to, 17.
restraint on anticij)ation does not prevent, 19.
trust, coupled with power, 11.
REMOTE,
general failure of issue, power arising on, 113.
power bad if, 110.
valid appointment to objects within limit, 115.
Wills Act, " die without issue " before, 114.
RENOUNCE,
exercise of powers by executors who, 95.
RENT,
acceptance of, by remainderman, cannot set up void lease, 357.
ancient, 624.
apportionablo, is, 625.
" best," to be reserved, 613.
not necessarily highest, 614.
definition, 614.
incident to reversion, 626.
payment of, 625.
in advance, 626.
reservation of, 627.
uniform, should be, 624.
usual, 624.
RENT-CHARGE,
jointure, for, 320, 321.
sale in consideration of, 553.
RENTS AND PROFITS,
power to raise fixed sum out of, authorizes sale or mortgage, 324.
REPUBLICATION,
before Wills Act, did not execute a power created after the date of the
wiU, 226.
REPUGNANT,
absolute gift to power, 64.
distinction between realty and personalty, 68.
may bo cut down by subsequent express words, G6.
whore power is testamentary only, 66.
distinction between realty and personalty, 68.
executed instrument, general power and trusts for children in default,
103.
Umitod power and absolute estate in default, 107.
revocation, power of, is, to common law conveyance, 2.
sale, power of, when, 34.
698 INDEX.
EESEEYATION,
mode of, of powers, 7.
of equity of redemption, exercise of, general power by, 171.
of power of revocation, q. v., 269 — 273.
EESIDUE,
appointment of, of fixed sum, does not carry lapsed shares, 246.
costs not payable out of, in case of appointments, 254.
lapsed shares carried by appointment as residue, 247.
specific, when appointment of, is, 250.
EESTEAINT ON ANTICIPATION,
release of power not prevented by, 19.
void if it infringes limit of perpetuity, 295.
EEYEESION,
appointment while property is in, 198.
charges, raising, by sale of, 532.
persons entitled in, may, with life tenant, call for payment, 439.
rent incident to, 626.
sale of, under power, 153.
settlement of, appointed to infant, 420.
EEVEESIONEE
willing to confirm lease, 354.
EEVOCATION, POWEE OF,
appointment, general words of, do not exercise, 214.
common law conveyance, cannot be reseiTed in, 2.
deed executing power, reservation of, in, whether authorizes fresh
appointment, 272.
exclusion of, by author of power, 271.
execution of, 208, 213, 214, 268.
by defective appointment, 216.
extent of, 210.
fraudulent exercise of, 411.
general words of revocation in will, executed by, 213.
of appointment in will, not executed by, 214.
grant of estate exercises, 268.
instrument to be revoked, must be reseiTed by, 271.
intention to execute in all events, 209.
new appointment, j^owers of, and of revocation, 272.
original settlement in, authorizes limitation of new uses, 272,
portions, suspends raising, 533.
primary powers, successive executions, 273.
where power revoked is not, 274.
reservation of, 7.
allowed, even if not expressly authorized by creator, 269.
consent, cannot dispense with, 270.
INDEX. 699
EEVOCATION, POWER OF-coutinued.
reservation of — continued.
joint donees, to survivor of, 269.
to one during joint lives, 269.
limited power, cannot alter objoct-s of, 270.
successive executions of primary power, 273.
will executing power, when by subsequent will, 211, 212.
always revocable, 175.
SALE,
acting executors under 21 Hen. 8, c. 4, by, 89.
adoption by trustees of tenant for life's contract, 555.
appoint, power to, in equity authorizes, and gift of proceeds, 320.
auction, by, 552, 555.
condition precedent to power of, 150.
conditional contract before period of, 554.
conversion not effected by power of, 548.
unless it be exercised, 548.
conversion effected by imperative direction to sell, 548.
deficiency of personal estate, power in case of, 151.
discretion of trustees to consent not controlled, 555.
duties of donee of power of, 548.
enfrancbisement, semhie, power of, authorizes, 558.
executors, by, 2, 14, 75.
creation of power in, 68 et seq.
exchange, and. what authorized by power of, 556.
fiduciary position, by persons in, 565.
gift not authorized by power of, 553.
implied power of, 48.
improvident contract, 550.
incumbrances, free from, under Convej-ancing Act, 551.
insertion of power authorized by inference, 546.
excluded by implication, 545.
joining other trustees in selling, 554.
lease, subject to invalid, effect of exercise of, 350.
minerals, sale of land apart from, 360.
mortgage, power to, authorizes insertion of power of sale, 447, 448.
power in, proviso qualifying, 150.
power of sale authorizes, 558.
mortgagee, ^ith statutory title to fee, can exercise power of sale, 34.
can exercise power, lea\-ing sum
outstanding, 560.
exercising power, 550, 551.
mortgagor joining in transfer does not destroy power, 17.
has no redress against mortgagee if he takes reasonable
precautions, 550.
purchasing from first mortgagee, 564.
700 INDEX.
SALE — contin tied.
option to pm-chase at future date, not authorized, ooi.
owelty of oxcliange, 554.
partition, wlien authorized by power of, 55G.
perpetuity, 33, 34.
receipts, power to give, 546.
statutory power to give, 547.
trustees must all concxu- in giving, 547.
reinvestment in land, whether necessarily in view on exercise of, 548,
549.
rent-charge, in consideration of, 553.
repugnant, 34.
reversion, power extends to, 153.
Settled Land Act, q. v., 565 — 587.
tenant for life may purchase from tinistees, 561.
sole donee, 562.
pm-chasing under Settled Land Act, 1890... 562.
receiving forfeited deposit, 556.
timber, land sold apart fi-om, 359.
trust for, distinguished from power, 34.
unlimited power, 33, 111.
Uses, Statute of, under, form of, 548.
usual power, is, 544 — 546.
SATISFACTION,
advancement clause, construction, 402.
advance, when presumed to be in, 395.
benefit of charge paid off, who entitled to, 399.
double portions, presumption against, 396.
parent under liability to make a settlement for children, presumption
of, 397.
presumption that advance operates for benefit of children interested
in portion fxmd, 399.
presumption that advance is, 400.
purchase of child's share by parent, 397.
sum for benefit of childi-en charged on estate subject to a settlement,
399.
sum or land held on trust for children as parent appoints, 400.
when advance operates for benefit of estate, 400.
SECONDAEY POWEE, 36, 274.
SECEET TEUST, 485.
SEISIN,
not necessary to devise to uses, 6.
INDEX. 701
SELBOEXE'S (LORD) ACT, 374.
SEPARATE USE,
appointment to, 323.
death, ceases at, 122.
effect of, 120.
future coverture, arises again, 122.
real estate, cori)u.s of, maj' be hold for, 121.
remainder to, wlien contingent power does not arise, effect of, I-jG.
•will, effect on estate made separate by Act of 1882... 158.
SETTLED ESTATES ACT,
duty shifted to pui-chase-money, 283.
SETTLED LAND ACTS,
administration decree does not affect powers, under, 43.
application to Coiu't under, 578.
appointment of trustees for purposes of, 43, 646.
assignment of powers under, not allowed, 22, 581.
building lease under, 597, 639.
Court, leave of, when required under, 586.
covenants in leases under, 630.
cumulative powers under, 583.
definitions in, 565 — 568.
delegation of powers under, void, 444.
fine on lease under, 613.
infants' powers under, 572, 643.
leases under, by deed, 611.
contract for, 590, 591.
counterpart, 634.
covenants in, 630.
land to be leased by, 597.
rent to be reserved by, 613.
surrender of, 621.
terms authorized to be granted by, 597.
lunatics' powers under, 573.
mansion house, provisions as to, 573, 600.
married women's powers under, 572.
mines, provisions as to, 605, 607.
new trustees for purposes of, appointment of, 646.
piurchasers, protection of, 582.
raising money under, 573.
release of powers under, void, 22.
sales under, 565 — 587.
restrictions on, 568.
surrender of lease under, 621.
702 INDEX.
SETTLED LAND ACTS— coiithwed.
tenant for life under, 5G6, 570.
consents by, 586.
contracts by, 574, 590, 591.
conveyance by, 575.
trustee, bow far, 582.
trustees for purposes of, 577, 580.
notice to, 579.
l^ayment to, 577.
pro'tection of, 578.
receipts by, 577.
trust for sale under, 584.
working classes, provision for dweUings of, 569.
SEVEEABLE,
appointment to objects and strangers, 312.
executory devise, 291.
fraudulent appointments, when, 432 et seq.
SHELLEY'S CASE,
rule in, 56.
SHZFTLN^G USE,
created under Statute of Uses, 3.
^** — It -•
SPECIFIC
abatement where specific sum appointed, 252.
appointment, after general, 253.
SPECIFIC PEEFORMANCE,
jointure of contract to, 521.
lease, out of tenant for life's estate, 348.
by means of power, when, 349, 350, 591, 592.
SPEINGING USE,
contingent remainder read as, 289.
STATUTE,
powers created by, not aided, 343.
ST. LEONAEDS' (LOED) ACT,
execution of deeds, 134.
STEANGEE,
appointment under limited power to, 247.
to, for Hfe, remainder to object by deed, bad in toto, 307.
by will, good appointment in remainder, 308.
bargain for benefit of, fraudulent, 416.
SUBSTITUTION,
of children for parents, 497.
INDEX. 703
SUBSTITUTIONAL,
whether powers are, or additional, 108.
under Settled Land Act, 583.
SUCCESSION DUTY,
jointure given "without any deduction," 52.'i.
power of sale not prevented by, 283.
SUCCESSIVE EXECUTION, 273.
SUERENDEE,
covenant to, 103.
lease, 621.
of copyholds supplied in wife's favour, 341.
SURViyOESHIP,
administrator durante miixore cetafc, 454.
assigns, power limited to A. and hie, 454.
bare power to A. and B. and their heirs, 453.
to two or more by name, 454.
class, power given to several as, 456.
Conveyancing Acts, 401, 462.
disclaimer of trustees, 400.
discretionary legal power to A. and his assigns, 454.
implication, of powers arising by, 461.
named persons of powei-s given to, 454.
office, of power annexed to, 457.
probate, on renunciation of, 462.
protector of settlement, 455.
several, power given to, as a class, 456.
TAIL,
absolute estate in personalty created by words giving, 57.
estate, 57.
TAXES,
appointment of jointure free from, 522.
TECHNICAL WOEDS,
not necessary to creation of powers, 48.
execution of powers, 175.
TEN.VNT FOE LIFE,
adoption of contract of, by trustees, 555, 575, 591.
predecessor by, 590.
consent to sale, power to, not forfeited by bankruptcy, 21.
may buy from trustees, 501.
damages against, by lessee, 348, 042.
deposit, receiving forfeited, 556.
704 INDEX.
TENANT FOR LIFE— continued.
interest, must keep down, 537.
action against, for default in paying, 538, 539.
account against, extent of, 541.
must give specific i^erformance to extent of his, 348 et seq.
paying in excess of income, 540.
lease to himself by, 5G4.
specific performance of contract for, 592.
purchase from, with notice of invalid lease, 350.
himself by, 562.
under Settled Land Act, 562.
from trustees, 561.
TENANTS IN COMMON,
remainder to persons named as, effect on power, 162.
TEEM OF YEAES,
grant of, does it susj^end power of leasing ? 26.
power annexed to overriding, perpetuity, 113.
TESTAMENTARY,
what powers are, 60 et seq.
TESTATOE,
distinguishing general and limited power, 190.
property and power, 189.
will speaks from death of, 287.
TIMBEE,
sale of land apart from, 359.
TIME,
power need not generally be executed at one, 164.
TEANSFEE,
execution of, may execute general i:)ower, 178.
of mortgage, concurrence of mortgagor in, 17.
TEUST,
and power distinguished, 9, 452.
power coupled with, cannot be released, 12, 13.
power in the nature of a, 463.
creation, 478.
precatory, 479, 482.
secret, 485.
TEUSTEE,
abroad, 649.
advice of Court, may ask, 44.
appointment, 645—656. See New Trustees.
INDEX. 705
TRUSTEE— continued.
costs of, whoro appointment is attacked for fraud, 414.
default, when, may hand over property to persons entitled in, 275.
discharge of, 547.
discretion, 45, 46, 408.
delegation of, 441 et seq.
distribution of appointed fund, by what, 325.
donee lunatic, power of appointing, when, 451.
experts, may consult, 411.
incapable, 649.
inquiries, duty to answer, 655, 656.
lease of trust property with other estates, 554.
where no express power, 593, 595.
lunacy of, 650.
management of land, expenditure in, 593.
notices to, 655.
number, augmenting, 650.
diminishing, 651.
payment by, without notice of appointment, 275.
receipts, 546, 547.
removal of bankrupt, 650.
lunatic, 650.
retiring, liability if trust fund in peiil, 656.
reversioners and life tenant, requesting, must pay to, 439.
sale of trust property with other estates, 554.
separate sets of, 652.
Settled Land Act. See Settled Land Act.
tenant for life's contract for sale adopted by, ooo.
UNBORN CHILD,
gift to, for life, good, 293.
of unborn person void, 294.
UNCERTAENTY
of objects, 483.
of subject, precatory words, 482.
UNDIVIDED MOIETIES,
power of sale not terminated by absolute vesting of one of two, 33.
UNLIMITED
gift of income gives capital, 54.
USE,
consideration for, 4.
deed, in what may bo inserted, 4.
de\'isc to, operates imder Statute of Wills, 6.
F.
706 INDEX.
USE — co7it{nued.
Statute of Uses, 1.
powers operating under, 3.
"unto and to the use of A.," 5.
use upon a use, 4, 5.
USUAL POWEE,
advancement, is, 529.
charging, not, 528.
- jointiiring, not, 516.
lease, is, 596.
sale and exchange, is, 544.
USUALLY DEMISED, 600.
VALID,
execution of power, formalities, 129.
VAEL^TION
of settlement on divorce, 40, 41.
of marriage articles, insertion of power to jointure future wife, not
authorized by power of, 323.
VENTRE SA MERE,
cHld in, 490.
VESTING,
class, where gift is to, 472.
direct gift, where no, 474.
executory devise, of, 290.
gift for Ufe with power of disposition, none until power exercised, 52.
portions, of, 530, 542.
vested interest divested by appointment, 474.
VOID,
appointment infringing limits of perpetuity is, 296.
lease, 356.
limitations over after void appointment, 296.
VOIDABLE,
deed, if confiraied, speaks from its date, 287.
lease, 356.
VOLUNTAEY
conveyance void against subsequent purchasers, 255.
creditors, when, 255.
INDEX. 707
VOLUNTEER,
dofoctivo oxocution not aided iu favour of or at creditor's instigation,
339.
distinction between appointment to, and purchaser, 199.
WASTE, 602.
clause against, rejected where contradictory, 604.
WIFE,
appointment by, to husband, 8, 288.
children and, gift to, 491.
fortune, power to jointiu-o in propoi-tion to, 526.
husband can ajjpoint to, 8, 288.
mortgage, exercise of general power by reservation of equity of
redemption in, 166, 167.
" relations," not usually included in power to appoint to, 505, 507.
WILL,
alterations in, presumed to bo made after execution, 7.
appointment of particular estate to a stranger with remainder to an
object, 308.
of personalty, 309.
creating power, 106.
death of testator, operates from, 287.
deed, power exerciseable by, 172, 332.
execution of power by, 129, 131, 222.
contrary intention, 235 et seq.
not operating as, 215, 216.
exerciseable by, when power is, 60.
general clause revoking fonner wills, 213.
general power, power to appoint by, is, 7.
subsequently created, 222, 236.
general words, revocation by, 213.
"last," 211.
lapse, 236.
limited powers, Wills Act, s. 27, does not apply to, 227, 233.
s. 24, does not, qiiare, apply to, 226.
living person, power given by will of, cannot be exercised by, 226.
married women, execution of general power by, 257.
marriage, revocation by, 215, 216.
power created by, to appoint to illegitimate children, 488, 489.
probate necessary to execution of power, 134.
when entitled to, 133.
republication, effect of, 226.
requisites of execution, 131.
revocation of, exercising power, 175, 211.
by defective execution of power, 209, 216.
708 INDEX.
WILLS ACT,
s. 10, mode of executing, 131.
s. IS, revocation, 215.
s. 23, ademption, 217.
s. 24, wUl speaks from death, 221.
application to limited powers, qttcere, 226.
8. 27, general gift executes general power, 222, 233.
no application to limited powers, 226, 227, 233.
what are sufficient words, 228.
s. 33, lapse, 236.
WOEKING CLASSES,
sales for dwellings under S. L. A., 569, 570.
YOUNGER CHLLDEEN,
covenant to settle on issue, excludes charge for, 528.
period for ascertaining class, 502.
power to appoint among, 498.
power to vary marriage articles, does not authorize power to charge
for, 323.
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