pre

hurst in Evans v. Smithson. The particulars of that case
were not known, but the rule was also followed by Lord
Langdale in The Earl of Ilchester v. The Earl of Car-
narvon and again, although with reluctance, by the
sent Lord Justice Knight Bruce in The Earl of Claren-
don v. Barham; it was again recognized and followed
by Lord Truro in Hickling v. Boyer.
Boyer. The only ne-
cessity then being that there should be a fixed rule,
there must be some very strong reason shown to induce
the Court now to say that all these Judges were wrong
and that if they had attended to those cases in the House
of Lords which have been mentioned they would have
decided differently. The recent Act of Parliament has
strictly no application to the present case, and need not
therefore be noticed. The reasons before stated are a
sufficient ground for not now interfering with the rule,
and for holding that the Vice-Chancellor has come to a
right conclusion. I will however before finally disposing
of the appeal look into the case of Earl of Belvedere v.
Rochfort, and mention the matter again.

1856.

SWAINSON

V.

SWAINSON.

The LORD CHANCELLOR said,

I have little to add to what I have before stated on this case. The circumstances of Earl of Belvedere v. Rochfort were very complicated and it is difficult to say on what exactly the Court there proceeded. But whether the law was then understood to be the same as it has since been settled to be or not, it was not sufficient to raise a doubt upon the present occasion after the rule has been acted on as before mentioned. Neither was the present a very favourable time for the Court to be called on to disturb the rule, when, if the lady had lived a very short time longer, the Legislature would have settled the question. The appeal will therefore be dismissed.

Dec. 24.

1855.

Jan. 16, 17, 18.
Feb. 26.

Before The
LORDS JUS-

TICES.

A donee of a power of appointment by deed or will

appointed by fee, reserving

deed the whole

a power of reVocation and

new appoint

ment exercisable by deed. By a subsequent deed she revoked the uses, trusts and powers limited

the whole fee,

THIS

EVANS v. SAUNDERS.

EVANS v. EVANS.

HIS was an appeal from the decision of Vice-Chancellor Kindersley upon a special case, and also in a creditor's suit which had been heard at the same time.

The principal question in dispute was twice argued before the Vice-Chancellor, and is reported in the 1st Volume of Mr. Drewry's Reports (a). It was whether a donee of a general power of appointment had by a succession of deeds each revoking the uses declared by the preceding, deprived herself of the right of appointing by will. The deeds are very fully set out in Mr. Drewry's Report. The following is a short abstract of them.

The original power was contained in a settlement of the and appointed 19th of April 1794, made on the marriage of John and Anne by the former appointment, Evans, whereby lands were settled to the following uses and appointed in the events which had happened, viz. to the use of Anne Evans for life, with remainder, after certain remainders which did not arise, to the use of such person and persons, for such estate and estates, interest and interests, to take effect at such time or times, in such manner and form as Anne Evans, notwithstanding her coverture, by

reserving a power of revocation and

new appoint

ment, exercisable by deed. By a third deed she revoked the

uses, trusts and powers limited

(a) Pages 415-654.

any

and appointed by the last appointment, but declared no new uses :- Held that she had not by these deeds precluded herself from exercising the original power by way of testamentary appointment.

A power is not necessarily exhausted by a revocable appointment, and if such an appointment is revoked without having been acted upon, the power is generally, if not universally, still exercisable.

A power of appointment by deed or will is a single power.

A power of revocation and new appointment confers two distinct powers which may

be exercised at different times.

Montague v. Kater, 8 Exch. 507, approved of.

any deed or deeds, writing or writings, with or without power of revocation, to be sealed and delivered by her, in the presence of and attested by two or more credible witnesses, or by her last will and testament in writing, or any writing or writings in the nature of a will, or by any codicil or codicils, to be by her signed, sealed and published, in the presence of three or more credible witnesses, should from time to time, and as often as she should think fit, devise, direct, limit or appoint, and in default of such devise, direction, limitation or appointment, and subject thereto, to the use of Anne Lewis, for her life, with remainder to the use of the second son of Thomas Saunders, with remainders over.

By an indenture of appointment of the 5th of June 1830, made between Anne Evans of the one part and William Davies and Lewis Evans of the other part, Anne Evans, in exercise of the power contained in the deed of 1794, and all other powers, appointed that the land should, after the determination of the estate prior to the power, remain to the use of trustees for a term of ninety-nine years, to secure certain annuities with remainder to Bridget Evans for life, with remainder during her life, to the use of William Davies and Lewis Evans and their heirs, in trust to preserve contingent remainders with remainder to the use of the children of Bridget Evans except an eldest son, as tenants in common in fee; and Anne Evans thereby reserved to herself full power and authority, at any time or times thereafter, by any deed or deeds to be sealed and delivered by her, in the presence of and attested by two or more credible witnesses, to alter, vary, revoke, determine and make void, either in part or in the whole, the direction and appointment therein before made by her, and all or any of the uses thereinbefore limited of and concerning the said messuages, lands and hereditaments thereby ap

pointed

1855.

EVANS

V.

SAUNDERS.

EVANS

v.

EVANS.

pointed or intended so to be, or any of them, or any part thereof, and by the same or any other deed or deeds, to be sealed, delivered and attested, as last therein mentioned, to make any other direction or appointment, which might have been made, under and by virtue or means of the power of appointment, reserved to her as therein aforesaid, of and concerning so much and such part of the said messuages, lands and hereditaments, and the estate and interest therein to which such revocation should extend.

By an indenture of revocation and new appointment of the 5th of July 1833, reciting the hereinbefore-mentioned indentures of the 18th and 19th of April 1794, and the 5th of June 1830, and reciting that Anne Evans had not in any manner exercised the power of revocation and new appointment limited to her by the indenture of the 5th of June 1830, and reciting that Anne Evans was desirous of exercising her said power of revocation and new appointment in manner and to the effect thereinafter expressed, and also of substituting Alfred Thomas as a trustee in the place of the said William Davies, Anne Evans, in exercise of the power reserved by the deed of 1830, and every other power, revoked all and every the use and uses, estate and estates, trust and trusts, powers and limitations, limited and appointed by the deed of 1830, and appointed the lands to the use of trustees for ninety-nine years to secure annuities, with remainder to the use of Bridget Evans for life, with remainder to the use of Alfred Thomas and Lewis Evans and their heirs during her life, in trust to preserve contingent remainders, with remainder to the use of the children of Bridget Evans, except an eldest son, as she should appoint, and, subject to such appointment, to the use of the children of Bridget Evans, except an eldest son in fee. And there was a power of

revocation

revocation and new appointment in exactly the same terms as in the deed of 1830.

1855.

EVANS

บ.

EVANS

v.

EVANS.

By an indenture of revocation and new appointment, SAUNDERS. dated the 16th of July 1835, Anne Evans, in exercise of the power contained in the indenture of 1833, and of every other power, revoked all and every the use and uses, estate and estates, trust and trusts, powers and limitations in the deed of 1833 limited and appointed, and appointed that the lands should remain and be to the use of trustees for ninety-nine years, in trust to secure annuities, with remainder to Bridget Evans for life, with remainder during her life to Alfred Thomas and Lewis Evans and their heirs, in trust to preserve contingent remainders, with remainder to the use of the children of Bridget Evans, except the eldest child equally in common in fee. And there was a power of revocation and new appointment in exactly the same terms as in the former deeds.

By a deed poll dated the 26th of August 1836, Anne Evans, in exercise of the power contained in the deed of 1835, and of every other power, revoked all and every the use and uses, estate and estates, trust and trusts, powers and provisoes, declarations and limitations contained in the deed of 1835.

By her will, dated the 3rd of March 1848, Anne Evans, in exercise of the power contained in the deed of 1794, and of every other power, appointed that the lands should remain to the use of the plaintiffs in trust for sale.

The Vice-Chancellor decided that this testamentary appointment was invalid. The Plaintiffs and other parties in the same interest appealed.

Mr.