by the trustees or trustee for the time being of my will. Lastly, Revocation of I revoke all other wills. In witness whereof I have hereun- other wills. charging his life estate, has been much controverted up to a late period. to appoint trusThe case of Walmsley v. Butterworth, (13 Law Journ. 253), is a decision in tees, and other point. It was there held, consistently with the doctrine of Long v. powers. Ranken, (Sugd. Pow. App. No. 2; ante, n. (22), n. (105)), that the power of sale was not destroyed or suspended by a mortgage of the life estate, and that a good title might be made either with or without a revesting of the estate in the tenant for life; and though Sir Edward Sugden, in his opinion there cited, states, that if the mortgagee would reconvey to the tenant for life, the powers might with much less objection be exercised, yet he adds that in his opinion a title might be made in either way. The objection is of course still weaker where the life estate remains vested in the tenant for life, subject only to a term of years, or other interest derived out of it for answering a particular purpose. Admitting that a total alienation of the life estate might be attended with a different result, yet it is clear that the exercise of the power is not prevented by such a partial alienation. The only doubt in such a case would be, not whether the power is gone, but whether, on the principle that a man cannot derogate from his own act, the tenant for life has not precluded himself from concurring in an exercise of the power as against the incumbrancer; but this would be to hold that the power is pro tanto gone, and be inconsistent with the position that the power may be exercised either with or without a reconveyance. The question is of course excluded where the incumbrance itself expressly contemplates a paramount exercise of the power. When, from the nature of the power, it is obviously given for the general benefit of the settled estate, with a view to promote or to preserve the interests of all the takers, (and such is the intention of the usual powers of selling and exchanging, and of appointing trustees), it would seem to be a wholesome and convenient doctrine to hold, that, in the absence of an express agreement to the contrary, the alienee of the tenant for life is in the same plight in which the alienor would himself have been, namely, subject to all the changes consequential on the exercise of the power. We may observe in this place, that a strict compliance with even formal requisites, as sealing or attestation by two witnesses, is essential to the valid exercise of a power of appointing trustees; and that if persons appointed by an instrument not technically conforming to the power should assume to exercise, for example, a power of sale, equity could not aid the defect even in favour of a purchaser, who claims only mediately, not immediately, under the defective instrument. In such a case, the primary question would be, whether the persons assuming to sell were donees of the power of sale, or, in other words, trustees of the settlement; and to hold that they were such, notwithstanding the informality, would be to strike every formal requisite out of powers to appoint trustees. As regards induction into the office of trustee, by virtue of the power, form is substance. Formal defects in the execution of a power to appoint trustees, incurable. Form of attestation: -where the testator signs; der (196) set my hand, and I have also set my hand to each of the [six] preceding sheets of this my will. Signed, by the said testator, as [Two witnesses.] -where another signs by his direction. Signed by [name, description, and (196) See 1 Vict. c. 26, s. 9. [Two witnesses.] PART V. ALIENATION BY MARRIED WOMEN (197). ACKNOWLEDGMENT by ONE MARRIED WOMAN, before MEMORANDUM (198). THIS DEED, marked A. [or some other letter or mark], was this day produced before me, and acknowledged by Jane Ball (197) Vide post, 237. It is much to be regretted that the documentary machinery of the act, in regard to alienation by married women, was not more simple and determinate. It consists of a memorandum, certificate, and affidavit; of which the two former are left open to modification by the Court of Common Pleas, and the latter is referred entirely to the discretion of that Court. Fixed forms, few and short, should have been prescribed by the act itself. The memorandum of acknowledgment might have been thus expressed: "Acknowledged by the within-named Mary, the wife of the within-named John Blake, at Grantham, in the county of Lincoln, on the first day of January, one thousand eight hundred and thirty-six, before us, two of the perpetual commissioners for the county of Lincoln." The memorandum, authenticated by an official seal, should have been made sufficient for all the purposes of title. At some future period it may possibly occur to the legislature to consider, whether the beneficial result of the uncouth machinery in question, as a protection to married women, (who, it should be remembered, may, by virtue of a power or of a separate ownership, dispose of property to any amount without any acknowledgment), is not in a great degree imaginary, while the machinery itself is a real practical evil. The rules of Hilary Term, 1834, as amended by the rules of Trinity Term, 1834, require, 1. That one of the commissioners shall be a person not interested in the transaction, or concerned therein as attorney, soli (198) The memorandum is to be indorsed on, or written at the foot or in the margin of the deed, and signed by the judge, master, or commissioners taking the acknowledgment. (3 & 4 Will. 4, c. 74, s. 84). Alienation by married women, incumbered by forms. Observances required by the rules of the Common Pleas. Commissioners confined to their district. therein named, to be her act and deed; previous to which ac- and day of (199). (Signed by the Judge or Master). citor, or agent, or as clerk to the attorney, solicitor, or agent so interested or concerned. 2. That the commissioners, or, as the case may be, the commissioner not interested or concerned, shall first examine the feme apart as to whether she gives up her interest without any provision; and if a provision be intended, they are either to be satisfied that it has been actually made by deed or writing produced to them, or to see the terms shortly reduced into writing, and affix their signatures to such writing, "in the margin, at the foot, or at the back thereof." 3. That the certificate shall be in the form contained in the act (3 & 4 Will. 4, c. 74, s. 84); but where more than one married woman shall, at the same time, acknowledge the same deed, respecting the same property; or the same married woman shall, at the same time, acknowledge more than one deed respecting the same property, all the acknowledgments may be included in one certificate and affidavit; and the acknowledgment of a lease and release is to be considered as but one acknowledgment. As the rules are silent respecting the memorandum, it also retains the form prescribed by the act, (s. 84). 4. That the affidavit shall be in the form appended to the rules of Hilary Term, 1834, and be sworn before a judge or commissioner of the Court of Common Pleas; and shall be made by a practising attorney or solicitor, except that if one deponent cannot swear to all the facts, several deponents may join and swear to the facts within their respective knowledge; and that, if an attorney or solicitor cannot swear to the facts of knowledge of the feme and of her being adult, those facts may be sworn to by any person deemed competent by the officer taking the affidavit. The affidavit may be made by one of the commissioners, either alone, or aided, as to facts to which he cannot speak, by some other deponent or deponents. The commissioners cannot take acknowledgments out of the district or place for which they are appointed, and should be described as commissioners appointed for that particular district or place only where the acknowledgment is taken; but they may take, within the district or place for which they are appointed, the acknowledgment of a feme resident, and in respect of lands situated, without such district or place. (3 & 4 Will. 4, c. 74, ss. 81, 82). (199) The form in the act, which says "this day produced before me," requires the addition of the date. CERTIFICATE (200). THESE are to certify, that, on the day of, in the year one thousand eight hundred and, before me, the undersigned Sir Nicholas Conyngham Tindal, Knight, Chief Justice of the Court of Common Pleas at Westminster, [or before me, Sir Joseph Littledale, Knight, one of the Justices of the Court of Queen's Bench at Westminster, or before me, the undersigned James William Farrer, one of the Masters in Ordinary of the Court of Chancery,] appeared personally Jane, the wife of John Ball, and produced a certain indenture marked A. [or such other mark as the deed bears], bearing date the day of one thousand eight hundred and and made between the said John Ball and Jane his wife, of the first part; Joseph Webb, of the second part; and William Ord, of the third part; and acknowledged the same to be her act and deed; And I do hereby certify that the said Jane Ball was, at the time of her acknowledging the said deed, of full age and competent understanding, and that she was examined by me, apart from her husband, touching her knowledge of the contents of the said deed, and that she freely and voluntarily consented to the same (201). (Signed by the Judge or Master). (200) The certificate must be written or engrossed on a separate piece of parchment, and be annexed to the affidavit. (201) Vide form of affidavit, post, 225. |