1855. EVANS v. SAUNDERS. EVANS v. EVANS. Feb. 26. The LORD JUSTICE TURNer. In this case it appears, that by a settlement of the year 1794 estates were settled subject to some prior uses which have now determined, to the use of Anne Evans for life, with remainder subject to limitations in favour of her children, which did not take effect, she having had no child, to the use of [His Lordship read the limitations] -and in default of such devise, direction, limitation or appointment, to certain other uses under which Thomas Jones Saunders, one of the parties to these suits, claims to be entitled. That by a deed dated the 5th June 1830, Anne Evans, in exercise of the power of appointment reserved to her by the settlement of 1794, and of all other powers enabling her in that behalf, appointed that after the determination of the interests limited prior to her power of appointment, the estate should go to certain uses mentioned in that deed of appointment, and which uses exhausted the fee; but that by that deed Anne Evans reserved to herself a power of revocation and new appointment in the following terms-[His Lordship read it.] That afterwards by another deed dated the 5th of July 1833, Anne Evans, in exercise of the power reserved to her by the deed of appointment of 1830, and of all other powers enabling her in that behalf, revoked the uses limited by that deed, and appointed that the estates should go to other uses mentioned in the deed of 1833, which also exhausted the fee, again, however, reserving to herself powers of revocation and new appointment expressed in substance at least in the same terms as the powers reserved by the deed of 1830. That by a further deed dated the 16th of July 1835, Anne Evans revoked the uses limited by the deed of 1833, and appointed that the estates should go to other uses which also exhausted the fee precisely in the same form and manner as had been adopted in the deed of 1833, reserving to herself, however, by this deed, also a power of revocation and new new appointment, expressed in the same terms as the like power reserved by the deed of 1833. That subsequently by a deed poll dated the 26th of August 1836, Anne Evans revoked the uses limited by the deed of 1835, and that she did not by that deed poll or by any subsequent deed declare any new uses, but that by her will dated the 3rd of March 1848, and purporting to be made in exercise of the power reserved by the settlement of 1794, she devised the estates to trustees, in trust to sell and stand possessed of the proceeds upon trusts under which several others of the parties to these suits claim to be interested. It is between these parties and Thomas Jones Saunders claiming under the limitations of the settlement, in default of appointment; the principal question in these suits arises,—whether the power reserved to Anne Evans by the settlement of 1794, to appoint by will was subsisting at the time when she purported to exercise that power by her will of the 3rd of March 1848, there being no doubt that the will is a good execution of the power, if the power was subsisting at the time when it was made. This question was twice argued before the ViceChancellor Kindersley, and the conclusion at which he arrived was that the power to appoint by will created by the settlement of 1794, was not subsisting at the time. when Anne Evans made her will on the 3rd of March 1848. The grounds and reasons on which the ViceChancellor founded that conclusion, are conveniently summed up by him in the judgment which he gave upon the case after the second argument before him. They are these:-1st. That a power to appoint by deed or will does not constitute two separate and distinct powers, but is a single power with a restriction on its exercise, requiring it to be exercised by one or other of those 1855. EVANS V. SAUNDERS. EVANS v. EVANS. 1855. EVANS บ. SAUNDERS. EVANS V. EVANS. those two instruments, but leaving to the donee the option within the limits of that restriction to choose which instrument he will use in exercising the power; 2ndly. That powers of revocation and new appointment are two separate and distinct powers. And further that, where, by the terms of the reservation of powers of revocation and new appointment, the donee is authorized to exercise them at his option, either by the same or by different deeds, if he first exercises by deed the power of revocation only, the power of new appointment still continues to subsist as a valid operative power capable of being exercised by a subsequent deed, and admitting that it is competent to the donee of such powers, exercising only the power of revocation to release or extinguish or destroy the power of appointment which was reserved to him, yet the mere exercise of the power of revocation alone will not per se have any such effect; 3rdly. That where a person has a general power of appointment by deed, whether it be what is called by Lord St. Leonards a primary power (i. e. a power preceding the uses declared in default of appointment), or be a power of appointment connected with a power of revocation, and following the uses declared by the instrument creating the power and exercises that power of appointment, and by the deed exercising that power, reserves to himself a new power of appointment, whether such new power be reserved as a primary power, or as connected with a power of revocation, such power so reserved, is to all intents and purposes a new power newly created by him, and is not the old power which he has exercised, and that it is equally a new power, whatever be the kind or degree of restriction which he has thought fit to impose on its exercise, and whether he imposes on it precisely the same kind and degree of restriction which was imposed on the exercise of the old power, or a greater or less degree of restriction; 4thly. That there is a wide difference be tween tween the case where the donee of a general power of appointment exercising it by deed, reserves to himself a power of revocation only, and the case where he reserves to himself not only a power of revocation, but also a power to appoint new uses, and that, whatever may be the effect of the subsequent exercise of the power of revocation, where a power of revocation only has been reserved, the effect is very different where a new power of appointment is reserved as well as a power of revocation, and the power of revocation only is exercised. And that, even assuming that in the former case, the effect of the revocation would be to restore the original power, yet, in the latter case, the creation and reservation of the new power of appointment effectually prevents the restoration of the original power. With the first, second and third of the positions on which the Vice-Chancellor has thus rested his judgment I agree. I think that the power to appoint by deed or will contained in the settlement of 1794, is no more than a single power to be executed in one or other of the two different modes pointed out. I think, also, that powers of revocation and new appointment are separate and distinct powers; that the power of new appointment may continue after the power of revocation has been exercised, and that the exercise of the power of revocation will not of itself extinguish or destroy the power of new appointment. Further, I think, that where under the exercise of a general power of appointment, a power of revocation, and of new appointment is reserved, the power of appointment so reserved is a new power, and cannot be held to be the old power which has been already exercised. In part, also, I agree with the Vice-Chancellor's fourth position. I think that there may be a difference between cases in which a general power of appointment being exercised, a power of revocation only is reserved, 1855. EVANS v. SAUNDERS. EVANS V. EVANS. and 1855. EVANS บ. SAUNDERS. EVANS v. EVANS. and cases in which upon the exercise of such a general power, a power of revocation and new appointment is reserved, and that there may also in these cases be a difference in the effect of the power of revocation only being exercised. It is upon the conclusion which the Vice-Chancellor has drawn from these premises my difficulty has rested. He says, that even assuming that in the former case,—the case of the power of revocation only being reserved,—the effect of the revocation would be to restore the original power; yet that in the latter case—the case of the power of revocation and new appointment being reserved—the creation and reservation of the new power of appointment effectually prevents the restoration of the original power. With great deference to the Vice-Chancellor, whose judgment is entitled to the highest consideration, both from his extensive knowledge of the law of real property and from the care and attention he has bestowed upon this case, I think that he has gone too far in this latter part of his fourth position. He has assumed that the original power contained in the settlement of 1794 has come to an end, and questioned only whether it has been restored. The true question, as I think, is whether it has ever come to an end. In considering this case, I have been most anxious in the first place to see whether it can fairly be considered to be governed by authority; for I agree with what was said at the bar,-that nothing can be more dangerous than to unsettle the law of real property upon any point, however minute or technical it may be. We must remember that other titles may depend upon the same or similar points. If, therefore, I had succeeded in finding any decision by which the question before us could be ruled, I should have been much disposed to abide by that |