merely of law), an intention I say merely in point of fact that the provisions of the deed of 1833 should not stand restored and set up, and also that, unless in the event of her executing some deed, which she never executed, she should have no power of testamentary appointment. I have looked in vain through the deeds for the exhibition of such an intention. It may, I agree, be taken that her intention was so when she executed the deed of 1835. But Mr. Saunders's alleged title depends on the deed of 1836, and neither the contents of that alone, nor the contents of all the deeds taken together, appear to me to show in point of fact-merely in point of fact-such an intention. If so far I am right, the question to be solved is substantially one of law, and nothing else,—a question, namely, whether necessarily the legal effect of the deeds was not only that the deeds of 1830, 1833 and 1835 became effectually revoked as appointments, but also that (those of 1835 and 1836 having been the last deeds which Mrs. Anne Evans executed), her power of testamentary appointment was abolished. Of this proposition Mr. Saunders maintains the affirmative, a proposition which, if he is right in it, casts certainly no light slur on the law of England; for in such a state of things not to say that sense would be defeated by nonsense, at least substance would be destroyed by form. Though a person may, I agree, be reasonably denied a capacity which, having once had and cast away, but having retained the means of re-acquiring, he has omitted to re-acquire, I can see no reason in a rule prescribing that a revocable disposition of property shall after its revocation, though it has never been acted on, affect and change permanently the rights and powers over the property; still, whatever is law must be submitted to. But is our law open to such an imputation? X X 2 Before 1855. EVANS v. SAUNDERS. EVANS v. EVANS. 1855. EVANS บ. SAUNDERS. EVANS v. EVANS. Before, however, addressing myself to answer this, I will, both as to the question of fact and the question of law, say that the advisers of Mrs. Anne Evans ought not to have left ground in this case to dispute upon. If her intention when she executed the deed of 1836 was by it to restore and set up wholly the deed of 1833, why was she not made plainly to say so? If her intention at that time was not so, but was that afterwards she should have no power to defeat Mr. Saunders by a will unless she should execute some subsequent deed, why was she not made plainly to say so? If her intention at that time was not of so extraordinary a kind (extraordinary upon the theory that she did not by the deed of 1836 mean to restore and set up the deed of 1833), she might have been made to declare in so many words that the lands should be held subject to such or the same or the like rights, interests and powers as if she had executed not one of the deeds of 1830, 1833 and 1835. Why after the actual deed of 1836 was she not, whether necessarily or unnecessarily, advised for the sake of caution to execute another deed? What are lawyers for? To return to the legal question. Let it be supposed that the effect of the deed of 1836 was not to restore and set up the deed of 1833 as an appointment, and that after the execution of the deed of 1836 Mrs. Anne Evans had a power of appointment by deed under the instruments of 1830, 1833 and 1835, or under some or one of them; still I do not see any inconsistency with the four deeds taken together in the assertion that after the deed of 1836 she retained or had a power of testamentary appointment under the settlement of 1794. Assuming, in favour of Mr. Saunders, that the effect of the deed of 1836 was not to set up the whole of the deed of 1833, I apprehend that if, after the deed of 1836, any provision contained in the deeds of 1830, 1833 and 1835, or in any one or more of them, them, remained in force, what so remained in force was merely a power to Mrs. Anne Evans to appoint by deed, a power which she was not bound to execute-which she was entitled to leave as she did leave it, unexecuted; and which, in my opinion, did not merge, extinguish or abolish the power to appoint by will contained in the settlement of 1794. If Mrs. Evans after the settlement of 1794 had executed but one instrument of appointment not testamentary, and that had been a deed of 1837, doing nothing but creating or affecting to create a power in herself to appoint the fee by a writing "sealed and delivered by her in the presence of and attested by two credible witnesses," or doing nothing but conferring a life estate or an estate tail upon some stranger, I am persuaded that she might afterwards have effectually made a will in exercise of the power of testamentary appointment, subject to be wholly or partially defeated by her execution of the power (if any) created or affected to be created by the deed of 1837, and subject to the life estate or estate tail if any appointed by it. Mr. Saunders appears to me not in the least degree more entitled to succeed upon his actual case than he would upon either of the two that I have just been supposing. Finally, I conceive that by law, a power, which in any mode or to any extent whatsoever has been exercised, but exercised revocably, and the revocable appointment made under which has been well revoked, without having been acted on, is generally, if not universally, in the same force and exercisable in the same manner as if the revoked appointment had not existed, and that a power cannot necessarily be exhausted by a revocable act, though executing otherwise the power to the utmost, more than by a conditional act or by an act of merely partial execution; of execution, I mean in no sense and by no possibility full and complete; and my opinion is wholly against 1855. EVANS V. SAUNDERS. EVANS v. EVANS. 1855. EVANS บ. SAUNDERS. EVANS บ. EVANS. against Mr. Saunders's alleged title, nor can I avoid regretting that, whether incited or not incited to litigation by the conduct of any of those claiming under the will of 1848, he has become a litigant in this matter, seeking to disappoint the evident wishes and manifest intention of a person who justly had the absolute dominion substantially over the disputed property, seeking this by means of a supposed objection strictissimi juris at the best, startling to common sense, not intelligible beyond the pale of English law, nor easily understood, within it. Certainly a judge of weight and consideration has thought the objection authorized by our law and thinking so he gave of course effect to it as he did; but I believe that he cannot have done this willingly, or otherwise than under a feeling similar to that which once forced Lord Mansfield to say, "All revocations which are not agreeable to the intention of the testator are founded on artificial and absurd reasoning. The absurdity of Lord Lincoln's case is shocking. However, it is now law." Respectfully differing from the able Vice-Chancellor, I think that we may in obeying the law decide as any man not a lawyer would against Mr. Saunders. Whether his Honor's conclusion is necessarily inconsistent with Montagu v. Kater (a), I need not give an opinion, but certainly I am convinced, that the conclusion of the Court of Exchequer in that case was as right in law as it was plainly agreeable to good sense and justice. I must, however, again notice the question, whether the meaning and effect of the deed of 1836, properly construed, were to restore and wholly to set up the deed of 1833, a question that I had before the hearing of January last, thought serious and difficult; and this impression, certainly not removed or weakened by the manner in which the argu (a) 8 Erch. 507. ment ment on that occasion was conducted, still remains. But One at least of the learned counsel, however, contended that the trustees of the will had so acted as to deprive themselves of any right to some of the costs claimed by them. Upon this point, as well as Mr. Saunders's application for costs, I had rather for the present reserve myself. But considering the manner in which he was caused to come forward as a claimant, I may at once say, that in my judgment he ought not to pay any costs. 1855. EVANS V. SAUNDERS. EVANS บ. EVANS. The |