REPORTS

OF

CASES

ARGUED AND DETERMINED

IN

THE ROLLS COURT.

EVANS v. EVANS.

THE question, on this special case, was, whether a special power of appointment, contained in an instrument bearing date the 20th of July, 1847, had been duly exercised by a will of the 1st of August, 1848.

The facts as stated in the special case were these:In 1834, the father of Emily Haigh left, by will, a trust fund, now amounting to the sum of 2,500l., to two trustees, in trust to pay the dividends to Emily Haigh for her life, for her separate use, and after her decease, for her children, as she should by deed or will appoint, and in default of appointment, upon trust for such of her children as should attain twenty-one, in equal shares.

On

A

1856.

Nov. 5.

Dec. 19.

feme covert, having a li

mited testa

mentary power of appointment over personalty, made her will in 1848, whereby, without referring

either to her

power or to the property sub

ject to it, she professed to dispose "of the property and income I am

now or may become possessed of," and

she then gave "her pro

perty" to her husband and her children. She died in 1854, at which time she had (independently of the property subject to the power) 931. arrears of income and a contingent reversionary interest in some trust moneys. Held, that the will did not operate as an execution of the power.

1856.

EVANS

V.

EVANS.

On the 20th of July, 1847, a deed was executed between Emily Haigh of the one part, and three trustees of the other part, whereby it was declared, that they should stand possessed of four other sums of money and the securities by which they were secured, upon trust to pay the income thereof unto Emily Haigh during her life, for her separate use, and after her decease, upon trust, if she should so by will direct, to pay and apply the whole or any part of the said income unto any, her surviving, husband, during his life, and subject thereto, upon trust to transfer the trust premises to the child or children of Emily Haigh, in such proportions, manner and time as she should by deed or will appoint, and subject thereto, to such children as should attain the age of twenty-one years, in equal shares.

On the 21st of October, 1847, Emily Haigh married Mr. Evans, who confirmed this settlement. On the 1st of August, 1848, immediately before the birth of her first child, Mrs. Evans made a will in these words:

"This is my last will and testament regarding the disposal of the property and income I am now or may become possessed of. I hereby appoint my uncle, Mr. J. T. Haigh, my mother and my husband to be the trustees or executors for the carrying out this my will. I will that, in the event of my leaving children, that my dear husband shall enjoy the interest of my property during his lifetime, and that at his death, it shall be equally divided amongst my surviving children on their arriving of age, or at the age of twenty-five years, to be determined by the trustees." The testatrix made several bequests over, contingent on her leaving no children.

Mrs. Evans died on the 13th of December, 1854, leaving her husband and three children surviving her.

At