1820. LIDWILL V. HOLLAND sequently at the best rent, and, therefore, that the rent reserved in such leases would be a fair criterion of value. Neither by the deed of revocation of the 20th AND OTHERS. day of December, 1782, nor by the last will of Thomas Lidwill the younger, is the restriction or condition annexed to the power strictly complied with, save only as to a very small portion of the lands in question. If the intended execution of the power by the deed of revocation of the 20th day of December, 1782, be duly considered, it will be found defective or fraudulent, since there is in that deed an express but false recital, stating that the lands in question were then actually leased to solvent tenants, who had more than twenty years or three lives then to run and unexpired of their leases, and that the lands produced a profit rent of the clear yearly value of 300l. or thereabouts, (thus explicitly admitting and recognising, on the part of Thomas Lidwill the younger, the necessity of a full compliance with the restriction or condition annexed to the power in that respect ;) whereas it has been clearly proved and reported by the officer, to whom that matter was referred, that the recital was wholly false or erroneous, (except as to a very small part of the lands in question ;) since it was found by the officer, that at the time when the said deed of revocation was executed by Thomas Lidwill the younger, a very small part only of the lands in question was actually let agreeably to the power, and that no further or other part of the lands was then in lease. 1820. LIDWILL V. If it be contended that the will of Thomas Lidwill the younger was an execution of the power of revocation, it will be found liable to the same AND OTHERS. objection on account of the non-compliance with the condition or restriction annexed to the power, the lands in question not being let agreeably to that condition, for three lives, or twenty years, at the time of the execution of Thomas Lidwill's will, or of his death; and such execution by will must also, for that reason, be regarded as wholly void and inoperative; the term of twenty-three and a half years of the part of the lands, which was, at the time of executing the deed of 1782, in lease, according to the terms of the power, having expired, and that part of the lands not being, at the execution of the will, actually let in the manner required by the deed creating the power. The will recites a title to the 300 acres: the power is to appoint land of the value of 300l. The will, therefore, is merely an appointment of 300 acres, which he was not empowered to appoint; and Thomas Lidwill the younger must be considered as having been fully aware of the necessity of all the lands being so let, in order to render any execution of the power valid and effectual, because he had previously recognised and fully admitted the necessity of such a compliance with the requisitions of the power, by the specific introduction of the recital or statement to the effect before mentioned, in the deed of revocation of the 20th day of December, 1782. The execution of the power of revocation, by the deed of revocation of the 20th day of Decem 1820. LIDWILL ". AND OTHERS. ber, 1782, being thus defective, can be considered as an effectual execution of the power, so far only as relates to that part of the lands in question, HOLLAND which was found by the officer, to whom the cause was referred, to be actually let agreeably to the power, at the time of the execution of the deed of revocation. The will of Thomas Lidwill the younger cannot be considered an effectual execution of the power, with respect to any part of the lands, because the term in that part of the lands leased in the year 1782, had then expired. Both these executions of the power must be considered as defective, and consequently void and inoperative as to the lands in question, so far as they were not under lease, according to the requisition of the power. The Appellant is clearly entitled as immediate tenant in tail in possession, under the uses of the settlement, to the lands and premises of Coologenafrian or Graffin, and the part of Clekile in the pleadings mentioned, together with the rents and profits which have accrued due thereon, from the time of the decease of Thomas Lidwill the younger. If this were a case of mere informality in the execution of a power, the defect might be supplied in a court of equity in favour of particular objects; but the record makes no such case. The only question presented is, whether the power was legally executed. Error or mistake in the instrument creating the power or the appointment might have been rectified in equity; but no such case is alleged. The decree does not even comprise a declaration to such effect, or any thing 1820. LIDWILL V. which can clear up the doubts which hang over the case. The exceptions taken to the report do not indeed touch the matter of the present appeal; but AND OTHERS. that is not a material objection, for the subsequent directions are consequential, and must stand or fall with the decree. The contract between the parties to the settlement provides what lands shall be appointed, and under what circumstances. A court of equity cannot make a new contract for the parties, or strike out of the settlement a material provision. It may be thought a capricious mode of ascertaining the value of the lands; but it has the character of caution, and, at all events, it is the caprice of parties contracting, and it is not the province of a court of justice to control such caprice, if it be legal. That the lands were, in fact, of the value contemplated is immaterial, if the mode prescribed to ascertain that value has been neglected. Appointments, in a multitude of other cases, which, apparently, have been innocent variations from the power, have been held void. In this case the defect is not in form but in substance. The Court is required in this case to substitute a new power.* For the Respondents-Mr. Wetherell and Mr. Shadwell. The decree, if right in substance, is not bad for form. The question is, whether the direction of the power as to lands in lease is material, or a point of form. The father had power to make a beneficial lease * As to the restrictions, the doctrine in the case of the Earl of Montagu v. the Earl of Bath, 2 Ch. Rep. 191, was cited by Mr. Phillimore. 1820. LIDWILL V. AND OTHERS. provided the rent was not below a certain depreciation.* Thomas Lidwill the father never having executed his power, it was indifferent whe- HOLLAND ther Thomas Lidwill the younger exercised his power of leasing or not. He might have leased before he revoked; but the essential part of the power is that lands, not exceeding 3007. in value, should be revoked and appointed. The report finds the value. There is no excess of the power in point of value. How can it be represented that the leasing was essential? If any prejudice to the remainder-man could have arisen from the non-leasing, the omission to do so might have avoided the power; but those interested in remainder could not be injured by the omission. The value, at the date of the revocation, was always capable of being ascertained. If leases had been actually subsisting, the revocation, no doubt, must have applied to them. If a lease had been made by Thomas Lidwill the father, there would have been a tenant at an undervalue. The revocation in such case could not have extended to lands in Graffin. The power not having been executed by the father as to those lands, the revocation might extend to them. The last clause shows that the power to Thomas Lidwill the younger is absolute. If the words of the power are ambiguous, the construction ought to be favourable to the object of the power. * This power, it seems, extended only to lands in Graffin, and a mode was prescribed of ascertaining the yearly value of the lands to be leased under the power. It was not set forth in the printed cases; nor was the deed containing it before the House of Lords upon the hearing. See the observation of the Lord Chancellor upon this subject, post, 124. |