CHAPTER V. What powers within the in are general tent of this rule. ownerships, should not be ascertained as the donee till after the execution of the will (a). The power must, of course, be testamentary, and the words of the statute "in any manner he shall think proper," require that the power should be unconfined in regard to the objects; (for the statute does not, for instance, render a general gift to the testator's children of force to pass property over which he has a special power of appointing in their favour, notwithstanding the property should, in default of appointment, be limited away); but the power may be general, within the meaning of the act, though restricted, as respects the donee, to celibacy, coverture, or any other state, and, as respects the instrument, to a will, or to a testamentary paper of a given description only, and, as respects the subject, to less than the absolute interest. Every tes- Powers and tamentary power, which confers a control over pro- how far assimiperty in the nature of ownership is, in regard to the mode of its exercise, treated as property; but, as respects all the consequences of its exercise, the doctrine of powers applies as before; and in making a general devise, its possible operation as an appointment may require attention (6), with reference to the doctrine of a use upon a use. It may here be observed, however, that as the capacity of a married woman to make a will is left to be determined by the old law, and as, in the case of power, the old law governed itself, in this respect, by the terms of the power, a married woman, to whom, if she should survive her husband, or in any other event, a testamentary power is given, cannot appoint by a will executed before the power, from which her capacity is to spring, has actually arisen. a lated. In the case of a trix, the power married testa must be in esse. Probably no provision of the act will more conciliate Indefinite de (a) See Sugd. Wills, 85. (b) See Butl. Fearn. Cont. R. 347, n. CHAPTER V. fee, or other the whole interest. both judicial and popular favour than that which renders vises to pass the a gift, without words of limitation, of force in itself to pass the fee, or other the whole interest disposable by the testator, in real estate, and abolishes the distinction, long since condemned by a great, though sometimes indiscreet, opponent of technical doctrines (b), between the devise of a house and the bequest of a horse. This enactment rescues the intention from the grasp of an old feudal rule (c), and stops the otherwise interminable current of decision which has been winding its vacillating course for centuries through a labyrinth of verbal distinctions (d). Of the non-im- If the new rule should give rise to any questions, they will plication of a contrary inten- probably be occasioned by its ascribing positively to an in tion. definite devise the effect of passing the fee, instead of simply negativing the application of the obnoxious rule to wills, and by a context impliedly indicative of a controlling intention. As to the latter ingredient, however, the courts, wisely remembering the embarrassment from which the legislature has just relieved them, will be little disposed to open a new source of litigation, by drawing from the context inferences against the always natural, and now legal, import of an indefinite devise. The mere fact, for example, that Whiteacre is devised to one, with words of limitation, while Blackacre is devised to the same, or to another person, without words of limitation, would not satisfy the exception-" unless a contrary intention shall Applicability of appear by the will." That a power, created by will, of appointment by deed or will, over land, would, without words of inheritance or equivalent words, now extend to enable an appointment of the fee, does not appear to admit of any -to an indefi- doubt. Nor does there seem to be any difficulty in holding the fee to pass under an indefinite devise, notwithstanding a devise over on failure of objects of the indefinite devise; this rule to powers; nite devise, with a devise over; (b) Ante, 3, n. (b), 88, n. (ƒ). (c) Ante, S. (d) Ante, 352. CHAPTER V. nite devise to several, suc cessive; so that, for example, under a devise to A. for life, remainder to his first and other sons in tail, remainder to his daughters, (indefinitely), and, in default of such issue, over, the daughters would now take the fee; and they would take it, though defeasibly, even if the gift over were “in case they should die without issue," for these words are no longer of force to raise an estate tail by implication (e); yet, doubtless, in such cases, estates tail are the very estates designed to be given, and in giving a fee, subject to be divested in the event only of death without leaving issue at the death, we palpably defeat the intention. But it has been thought that the peculiar case (f) to an indefiof a devise to one for life, with remainder to his sons successively, (without words of limitation), and, in default of such issue, then over, is one to which the new rule cannot apply. There would, in this case, be a balance of inconvenience; either the fee must vest absolutely in the first-born son, in exclusion of the subsequent limitations, or the sons must take successively for life. On the one hand, it may be urged that the real intention being, not that a second or subsequent son shall take on the death, simply, of his elder brother, and that the devise over, in favour of, perhaps, collateral relations, shall take effect on the deaths, simply, of all the sons, but that the sons shall take successive estates tail, we make the nearest practicable approach to the intention by giving the fee to the first-born son, and by thus fixing the inheritance in the family of the tenant for life; nor, in this point of view, does the capacity of the father, tenant for life, to inherit from the son (g), present an objection. On the other hand, it may be insisted that (e) Vide post, 399. (f) Foster v. Lord Romney, 11 East, 594. See Goodright v. Jones, 4 Maule & S. 88. CHAPTER V. the limitation to the sons in succession negatives an intention to give the fee to the first son, (as strongly as a limitation to A., B., and C., successively, negatives an intention to give the fee to A.), and thereby, without more, excludes the statute rule, leaving the old law, however destructive of the presumable intention, still to operate; and that we should not be justified in rejecting the words which import enjoyment by the sons in succession, if by any reasonable construction all the -to devises of words may be satisfied. As to the adequacy of an indefinite devise to pass the whole estate in lands held pur auter vie, this enactment is merely affirmatory of the previous law, unless, indeed, we are to consider that first principles had been overthrown by one inadvertent decision (h). estates pur auter vie. Devises to trustees and exe 2. The clauses which ascribe to devises made to trustees and executors the effect of carrying the fee, or the fee, in cer- other the testator's whole interest, are also of a salutary cutors, to pass tain cases. tendency; though it seems probable that the judicature would have gradually returned to a sound construction of such devises. These sections are not, perhaps, free from ambiguity, and they certainly cannot be appreciated without an intimate knowledge of the very peculiar state of the decisions (i). The general result of the two consecutive provisions on this subject seems to be, first, that a devise to a person upon any trust, or to an executor as such, either indefinitely, or for any estate, (except an estate of freehold, express or implied, or a definite term), will give the fee, or other the whole interest, notwithstanding any indication of a contrary intention; and, secondly, that a devise to a person, without such a limitation of his estate as would exclude all constructive modi fication, upon any trust or trusts, either not being or not including a trust to continue for life, (which ingredient, by letting in the implication of an estate for life, would bring the case within the previous provision), or being or including a trust to continue for life, but capable of outlasting the life, will likewise imperatively give the fee, or other the whole interest. These clauses may operate, in some cases, to preserve contingent remainders, by vesting the legal fee in the trustee, and by thus rendering the remainders equitable (k). They leave the question open, whether trustees take an estate, or merely a power (1), for, before the statute-rule can apply, it must be ascertained that the land is devised to the trustees. CHAPTER V. pressions. Words indica tive of a general failure of issue failure of issue restrained to a at the death. 3. But as the legislature seems to have a peculiar Particular exfacility in balancing the good which it confers by some equivalent evil, the clause which supplies the want of words of limitation is immediately followed by a complicated clause of verbal interpretation, which professes to fix the meaning of such expressions as "die without issue," or "die without leaving issue," or "have no issue;" and this it does, or attempts to do, by both affirmative and negative enactments, followed, first, by a qualifying clause, which specifies certain indicia of a contrary intention, and then by a proviso, which overrides and controls the whole. On this clause adjudication may labour without any danger of exhausting it, and future volumes may, perhaps, be compiled. Though it may be true that, in a popular sense, the words "die without issue," and, à fortiori, the words, "die without leaving issue," import a dying without issue living at the period of death, yet it by no means follows that testators, on having the effect of the popular interpretation fully explained to them, would prefer it generally to that which, (k) Ante, 34. (1) Knocker v. Banbury, 6 Bing. N. C. 306. of the princition, of the old ple, and opera doctrine: |