424.

the moment of the death of the donee, could be considered in equity an attempt in or towards the execution of the power." This decision will recall an observation of the Master of the 11 Russ. & M. Rolls in Cockerell v. Cholmeley 1, where he observes, "that a court of equity will supply a defect in the execution of a power, which consists in the want of some circumstances required in the manner of execution, as the want of a seal, or of a sufficient number of witnesses, or when it has been exercised by deed instead of a will." The last instance given by his Honor is clearly wrong, it having appeared, from what we have just seen, that in this case equity does not relieve.

29 Mod. 485;

S. C. 1 Sch. &
Lef. 60, n. a.

$ Per Lord Redesdale, 1 Sch. & Lef. 60.

6. Power over real Estate to be executed by Will.]—When the power rides over real estate, and is to be exercised by a will to be duly executed, although at law an instrument in the form of a will, but not signed and attested as the Statute of Frauds requires for the devise of real estate, would not be a will within the meaning of the power, yet equity would relieve against this defect. This point was decided in Wilkie v. Holmes2, where Lord Hardwicke observes, that, "where a will is to operate by way of appointment, it takes no effect from the statute, though the rules prescribed might, as in the case before him, be arbitrarily inserted by the party; and that the appointee cannot claim under the will, but by the deed of settlement directing the execution of the power; which deed, together with the instrument executing the power, make in effect but one in raising the charge upon the land, but that, in point of law, the charge is created by the deed directing the execution of the power. The Statute of Frauds was entirely out of the question, except so far as it is the rule which the donee is directed to follow in the execution of the power." And this case has been acted on ever since 3.

7. Equity will relieve in Favour of Objects not named, when.] -Equity has no power to relieve in favour of objects not named. When, therefore, the power prescribes the objects in whose favour it is to be exercised, an appointment to objects other than those named will be void both at law and in equity. Hence a power to appoint to children will not authorize an appointment to grandchildren 4. The same principle which applies to a power of Elwes, 1 East, appointment among children, applies, of course, to a power to appoint among any other class of persons; and therefore a power to appoint among nephews, does not authorize an appointment to grand-nephews. But this principle is no ways inconsistent with

• Brudenell v.

442; S. C. 7 Ves. 382.

5 Falkner v. Butler, Amb. 514.

that class of cases where, with the consent of the object of the power, or pursuant to his contract, it is exercised in favour of objects not designated. Thus, if a parent, with power to appoint among his children, upon the marriage of a child, by the marriage settlement appoint to the issue of the child; this will be supported in equity, not as an appointment to the issue of the marriage, but as an appointment to the child and a settlement by him1. To the validity of such an appointment, it is only necessary that the object of the power should be competent to assent, and should actually do so. The late case of Limbird v. Grote 2, furnishes a case of an appointment to others than the object of it, supported on the ground of contract. There, by deed made in 1773, certain lands and messuages were settled to the use of the husband for life, remainder to the wife for life, remainder to the children of the marriage, as the husband and wife jointly, or the survivor, should appoint, and in default of appointment, to the children as tenants in common in fee. By settlement made on the marriage of a daughter, it was provided, "that all such share and interest to which she should become entitled under the settlement of 1773, should be vested in trustees to the use of her intended husband for life, remainder to herself for life, remainder to the children of the marriage." Four years after the marriage, her mother, being the survivor, appointed a sum of money to be paid to the trustees of the daughter's marriage settlement, to the uses therein expressed, in satisfaction of her share and interest under the settlement of her father and mother. The Master of the Rolls held, that this was substantially an appointment to the daughter, "being in execution of the daughter's contract in her marriage settlement, and therefore a valid appointment." It may on this head be finally observed, that, under a power to appoint portions to younger children, a younger child who becomes the eldest before receiving his portion, is not within its operation 3.

8. Excessive Appointment.]-Equity will relieve when the donee appoints more than he is enabled to do, as where the donee had power to grant leases for twenty-one years, and made a lease for twenty-six years, this would be void at law4, but good in equity for twenty-one years, and void only for the excess 5; and even in this case it would seem, that if a lease had been granted for twentyone years, and from and after the term aforesaid for five years more, it would have been void at law only for the excess. On the same principle, where a person with power to charge 5000l., executes it

ker, Gilb. 168.

* Tomlinson v. Dighton, 10 Mod. 31, 71.

1 Parker v. Par- by charging 10,0007., it will be void only for the excess1. So where, under a power to appoint for life, the donee appoints to A. (an object of the power) for life, and after his death to his heirs, the two limitations coalesce, and the appointment is in fact of an estate in fee, the whole would be void at law, but in equity void only as to the excess. So where2, tenant for life, with power to appoint the inheritance to her child, exercised the power by limiting to her self an estate for life without impeachment of waste, remainder to her child in fee. The excess being clearly ascertainable, the appointment was held to be valid, and that the words "without impeachment of waste" had no operation. So, where A., having power to grant leases of his estate, granted several leases, some of which were not within his power, though they were all granted by the same instrument, it was referred to the Master to separate them3.

Lord Conway's case, 2 Ves. jun. 645.

• Pocklington v. Bayne, 1 Bro.

C. C. 450.

♪ Malim v. Keighley 2 Ves. jun. 533.

1. Illusory Appointments, how considered at Law.]-The jurisdiction of the court of Chancery, as distinguished from that of a court of law, although pointed out in a general way in our current treatises, has nevertheless never received that elaborate and thorough discussion which its importance and utility would amply repay. Had the proper limits of the jurisdiction of the courts been moderately understood, the class of cases to be found in our books relating to illusory appointments would never have existed. Where the donor of a power gives the donee the power of appointing among one or more of a specified class of objects, it is clearly competent for the donee to distribute the gift among the whole in any proportion he may please, or among some of them only, or he may give the whole to one. In such a case the power is said to be exclusive; but where the power is "to appoint to all and every the child and children, or "unto and among" several specified objects 5,

or in other words of the like import, the donee is clearly not at li berty to exclude any of the objects in the distribution of the property confided to his appointment. But though it be clear that he must give to every one of the objects named or designated a portion of the fund, it is equally clear that he may distribute it among them in whatever proportions he pleases, and that it would be completely within the terms of his authority if he should give ninety-nine parts to one, and distribute the remaining one hundredth among the rest. Such an appointment would be in perfect accordance with the authority; and accordingly, at law, however large a portion was given to one or more, and however small a portion to the rest, the appointment has always been held to be valid.

568.

1 Vern. 67. ' 1 T. R. 438, n.

Morgan v.

2. Illusory Appointments, how considered in Equity.]-Courts of equity, however, took a different view of the matter; and held, that the appointment is not sufficient if it exclude any of the objects from a real beneficial interest; and that, to the valid execution of the power, there must, regard being had to the value of the property and other concomitant circumstances, be a substantial gift. Sir Edward Sugden, in explanation of the distinction between the execution of powers at law and in equity, observes1, that "at law it was clear that any share, however nomi- Pow. vol. i. p. nal and illusory, would satisfy the terms of the power. The gift of a ring2, or a shilling3, was a good legal execution of the power, although the fund were 100,000/.4; whereas in equity ten guineas, or any other sum, merely illusory, with reference to the amount of the fund and the number of the objects amongst whom it was to be distributed, would have been void; but all the interests given to the child, contingent as well as vested, were taken into consideration. We shall have occasion to consider how far this distinction between the legal and equitable execution of such a power can be defended on principle." This promise does not appear to have been fulfilled. It is merely to blind ourselves by technical terms,-to create differences where none do, or in the nature of things can exist,-to talk of the distinction between the legal and equitable execution of powers. The question merely is, as to the construction to be given to a written instrument; namely, whether the donee has done that which his power authorized, by giving the bulk of the fund to one or more of the objects of the power, and a merely nominal or illusory share to the others. Courts of law, looking to the plain and ordinary sense of the

Surman, 1
Taunt. 289.
Vanderzee v.
Acklom, 4 Ves.
771.

19 Ves. 393.

• Thomas v.
Thomas, 2
Vern. 513.
3 Tomlinson v.
Deighton, 1 P.
W. 149.
4 Macey v.

Shurmer, 1 Atk.
389.

Liefe v. Saltingstone, 1 Mod. 189.

Swift v. Gregson, 1 T. R.

435.

Spring v.

Biles, Id. n.

words of the power, hold that he has: courts of equity were just as much bound by the terms of the power as a court of law.

3. Principles on which Powers are construed.]-There is no difference between the execution of a power at law and in equity. Every instrument," says Sir W. Grant, in Butcher v. Butcher1, "must receive the same construction from every court. Whatever is its true meaning, must be its meaning everywhere. If, then, the true meaning of the power, however discretionary in terms, be, that each object shall have what is called a substantial share, it is not executed according to its true meaning, and therefore is not well executed, by an appointment that does not give to each object a substantial share. A court of equity may, in the exercise of its own particular jurisdiction, supply defects in the execution of a power. But I cannot understand how the question, whether a power is well or ill executed, can receive different determinations in different courts. If it is not executed according to its true import, how can a court of law say it is well executed? And if it is executed according to its true import, how can a court of equity say it is ill executed?"

The proper key to the construction of powers is to interpret them according to the plain and ordinary import of the terms in which they are given. In modern settlements, the language used is generally such as to admit of no doubt as to the true construction. The books, however, for a long period after the introduction of powers, are full of cases involving merely questions of obscure construction. Thus, whether a power be exclusive, that is to say, enabling the donee of it to exclude one or more of the objects designated, or whether it be merely a power of distribution, that is to say, imposing upon the donee the obligation of appointing a portion of the estate or fund among all the objects designated, was a question of very frequent occurrence. Thus, where power was to appoint "to one or more of his children 2;" "to any of his children 3;" amongst all or such of his children4;" "to such of my children5;"" to and for the use and behoof of such child and children of the said A. as A. should at any time, by deed or will, direct, limit, or appoint 6;" or " to and amongst such of my relations as shall be living at the time of my decease, in such parts, shares, and proportions as my said wife shall think proper 7;" it was held, that it was competent for the donee to appoint to one or more of the objects designated, to the exclusion of the others; and having regard to the obvious meaning of the

the

66