BUTTERWORTHS' Ten Years' Digest OF REPORTED CASES. 1898-1907. For POWER OF ATTORNEY see AGENCY. 1 For POWER OF SALE see BANKERS, 27; 2. Duration of Powers-Power of Sale-Absolute Vesting of Estate in Person not capable of COL. taking Conveyance-Power held not to be Deter mined.]-A testator left his estate to trustees g upon trust for his daughter for life; and, after her death, upon trust in their discretion, and of their uncontrollable authority, to administer, 25 expend, and apply it for the benefit of his grandchildren and the survivor of them. There were certain remainders over, which were admitted to be invalid; and there was also power given to the trustees, when they in their own discretion should consider it necessary, to sell and convert his estate and effects into money. The testator's daughter died soon after her father, leaving two children-Jane, who died without ever being married and intestate in 1882, and Robert, who was of unsound mind, and who died intestate in 1902. The trustees had sold some land before the death of Jane, and other land after her death, but in Robert's lifetime; and the question now arose whether the proceeds of this lastmentioned land formed part of his personal estate, and this depended upon whether the power of sale was in fact subsisting when the trustees purported to exercise it. And see CONFLICT OF LAWS; EXECU- POWER OF APPOINTMENT. And see BANKRUPTCY, 218. (a) Construction. 1. Appointment to Uses of Prior Settlement or such of them as are "Capable of taking Effect."-Where property is appointed under a special power to the uses of a prior settlement or "such of them as are capable of taking effect," these latter words are not to be limited to what is still existing or possible in fact, but extend also to what is allowable in law. So, if property is appointed under a special power in a will, to the uses of a prior settlement made on the marriage of the appointor's daughter, the appointment does not fail because one of the beneficiaries of the settlement (e.g., the husband) is not an object of the power, or because in the case of children being born the rule against perpetuities would be broken. It may take effect as to the wife's life-interest and her power of disposition in default of children. IN RE FINCH AND CHEW'S CONTRACT, [1903] [2 Ch. 486; 72 L. J. Ch. 690; 89 L. T. 162 Kekewich. J. B.D.-VOL. III. HELD that the intention of the testator was that the trust should last until the death of Robert; and that it was not determined by the fact that Robert in 1882 became solely entitled, for he was never capable of calling for, or accepting, a conveyance; and that therefore the power of sale existed and was duly exercised, and the property must devolve accordingly. Re Cotton's Trustees ( (1882) 19 Ch. D. 624; 51 discussed. IN RE JUMP, GALLOWAY v. HOPE, [1903] 1 Ch. [129; 72 L. J. Ch. 16; 51 W. R. 266; 87 L. T. 502-Eady, J. 3. Intention-Reference to Power.]-Where it is manifest on the construction of a will that the testator intended to dispose thereby of property 3 Power of Appointment—Continued. of his own, and also of property over which he had a special power of appointment, and under the disposition made by the will the property subject to the power is given to a member of the class amongst whom it can be appointed, the property passes under the power, it being immaterial whether the testator supposed that the property passed by the power or by virtue of his own interest therein. BYRNE . CULLINAN, [1904] 1 Ir. R. 42-C. A. 6. Power of Appointment by Deed or Will among Children-Appointment to one Child by Deed, and subject thereto Bequest to all equally by Will-Double Portions-Burden of Proof.]— A testator bequeathed £10,000 to trustees upon trust to pay the income to his daughter for life, and afterwards to distribute the fund among her children as she should by deed or will appoint, and in default thereof in equal shares. The daughter had three children, to one of whom she by deed appointed sums of £2,000 and £1,333, and by her will she appointed the whole fund to her three children in equal shares. A summons was taken out to ascertain whether the child so pre account before sharing in the fund appointed by the will. It was decided by Stirling, J. that the rule against double portions practically only applied to the case of a father (Powys v. Mansfield, 3 My. & Cr. 359); that the burden of proof in other cases rested on those who sought to establish that the rule applied; and that, as in this 4. Marriage Settlement-Power of Appointment-Wife's Property-Ultimate Limitation-ferred should not bring those amounts into "Or otherwise as she shall direct."]-By a marriage settlement real estate belonging to the wife was vested in trustees, and during the joint lives of the spouses the rents were to be paid to the wife during her life .for her separate use without power of anticipation. After her death, in case her husband survived her, he was to have a life estate; after his death it was to go as his wife should appoint by deed or will. In default of that limitation it was to go unto and to the use of the surviving husband "or otherwise as he or they shall direct." If the wife survived her husband, which happened, the trustees were to re-convey the lands to her, "her heirs, executors, administrators and assigns respectively for her and their own use and benefit, or otherwise as she shall direct." HELD that the words "or otherwise as she shall direct" did not impliedly give the wife a general power of appointment, for to imply such a power would be entirely to alter the scheme of the settlement. VAN GRUTTEN . FOXWELL AND OTHERS, (1901) [84 L. T. 545-H. L. (E.). Debt General Ponver of 5. Married Woman Appointment Appointment in Discharge of Erroneous Statement of Indebtedness- Assets Married Insolvency-Administration Women's Property Act, 1882 (45 & 46 Vict. c. 75), 8. 4.]-Where a married woman, having under a settlement a general power of appointment by will, made a will and directed her trustees to pay legacies, including one of £1,100 to D. in! satisfaction of a debt due from testatrix to D., and, subject thereto, the testatrix, in exercise of the power under the settlement, appointed a life interest in the trust funds to her husband; and where the testatrix's estate was insolvent, and the debt of £1,100 was not due from the testatrix to D., but from her husband to D., and the husband, after the wife's death, paid the debt of £1,100 to D. :— HELD-(1) that the debt of £1,100 being the husband's, the legacy of £1,100 was perfectly effective at the date of the testatrix's death, and payment of the debt by the husband did not make any difference; (2) that a valid appointment was made of the £1,100, and, by sect. 4 of the Married Women's Property Act, 1882, the other property not being sufficient to pay debts, that the legacy must go for that purpose. IN RE HODGSON, DARLEY . HODGSON, [1899] [1 Ch. 666; 68 L. J. Ch. 313; 47 W. R. 443; 80 L. T. 276-North, J. case there was no evidence to show that the grandfather or the mother had assumed the duty of providing for the children which prima facie belonged to the father, the rule did not apply. His lordship also decided that the mere fact that, in consequence of appointments in this form, the fund would be enjoyed in unequal shares, could not be sufficient to exclude or rebut the application of the rule in a proper case. On appeal:- HELD, on the facts of the case, without expressing any opinion on the question of double portions, or whether the daughter was in loco parentis to her children, within the meaning of that expression as applied to the rule against double portions, that the appeal must be allowed with costs. Decision of Stirling, J. ((1898) [1897] 2 Ch. 574; 66 L. J. Ch. 731; 77 L. T. 49; 46 W. R. 138) reversed. IN RE ASHTON, INGRAM. PAPILLON, [1898]1 Ch. [142; 67 L. J. Ch. 84; 77 L. T. 582; 46 W. R. 231-C. A. 7. Power superadded to a Life Interest Insufficiency of Income-To use “as she may deem expedient"-General Power of Appointment.]— Where the testator gave the income of his estate to his wife for her life with remainder to residuary legatees, but directed that "in case such income shall not be sufficient, she is to use such portion of my said real and personal estate as she may deem expedient”: : HELD that she had a general power appointment during her life over the capital. of In re Pedrotti's Will ((1860) 27 Beav. 583; 29 L. J. Ch. 92-M. R.) distinguished. IN RE RICHARDS, UGLOW . RICHARDS, (1901) [50 W. R. 90; 85 L. T. 452; [1902] 1 Ch. 76; 71 L. J. Ch. 66—Farwell, J. 8. Power to Appoint in favour of a ClassDonee of Power a Member of Class-Right of Donee to appoint to Self.]-Under a settlement trust funds were, in the events which had happened, to be held in trust for such persons Power of Appointment-Continued. and purposes and in such manner as the settlor should appoint, "so only that every such appointment be made to or in favour of a grandchild or grandchildren" of the settlor's grandfather. HELD that there was no reason why the settlor should not appoint the trust funds to herself. TAYLOR. ALLHUSEN, [1905] 1 Ch. 529; 74 [L. J. Ch. 350; 53 W. R. 523; 92 L. T. 382Kekewich, J. 9. Power to appoint Life Estate with Remainder in Tail-Execution—“ To E. R. A. and his Issue" -Construction.]—A power was given enabling the donee in the events which happened to appoint certain real estate to his, the donee's, sons for an estate not exceeding a life estate with remainder to their issue in tail. The donee by a codicil to his will, after referring to the power, appointed one part of the estate to "E. R. A. and his issue." E. R. A. was one of the donee's sons. HELD-that the Court could only come to the conclusion that he intended E. R. A. to take an estate tail; and that consequently E. R. A. took a life estate, and after his death the estates must go as in default of appointment. Decision of Buckley, J. (54 W. R. 42; 93 L. T. 742) reversed. RE ADAMS, ADAMS r. ADAMS, (1906) 94 L. T. [720-C. A. 10. Real Estate-Appointment to Trustees upon Trust for Sale.-A testator devised real estate to the use of his daughter for life, with remainder to the use of such of her children as she should by will appoint, and, in default of appointment, to the use of her children as tenants in common. And he empowered the trustees of his will to sell the property, with the consent in writing of the persons for the time being in possession under the above limitations. By her will the testator's daughter, in exercise of her power, appointed the real estate to trustees in trust for sale, and to stand possessed of the proceeds upon trusts for her children. 'another instrument of even date he declared that the nominees should hold the policy moneys upon trust to pay the income to his wife for life, and at her death to pay £500 to the Religious Tract Society, and the surplus, if any, to his brother; and he expressly reserved to himself the power by will or writing in his lifetime to revoke or alter the above dispositions and to make fresh dispositions. By his will made subsequently the test tor cancelled all previous wills and gave an annuity of £500 to his wife, and a legacy of £500 to the Religious Tract Society, and as to the rest of the property, which on his wife's decease was not therein disposed of, he directed that it should be divided equally between certain of his nephews and nieces. HELD-that the will did not revoke the appointment of 1882. A general disposition of all property is not, in itself, sufficient to revoke a previous appointment. 13. Stock sufficient to raise a "net" Sum Succession Duty.]-A tenant for life under a marriage settlement, in exercise of a power of appointment in favour of the children of the marriage, by deed appointed that so much of the stock, funds, shares, and securities" then subject to the trusts of the settlement as shall be sufficient to raise the net sum of £2,000," should, subject to the life interest therein of the S. and be held in trust for him, his executors, appointor, henceforth belong and be vested in " administrators, and assigns. HELD-that the appointee took the £2,000 clear of all charges including succession duty. Decision of Stirling, J. ([1897] 1 Ch. 888; 66 L. J. Ch. 503; 76 L. T. 345; 45 W. R. 456) reversed. Banks v. Braithwaite ((1862) 32 L. J. Ch. 35) considered and questioned. RE SAUNDERS, SAUNDERS r. GORE, [1893] 1 [Ch. 17; 67 L. J. Ch. 55; 77 L. T. 450; 46 W. R. 180-C. A. Intention of 14. Successive Appointments Appointor.] A father and mother who hail power to appoint £7,000 among their children (other than an eldest son) at a time when they had seven younger children living, appointed £1,000 to each of two daughters. The father and one of the five younger children, in whose favour no appointment had been made, died; and the mother by a deed, which did not refer to the first appointment, but recited a power of appointment over £7,000, appointed one-sixth of the £7,000 to each of her six younger children then living. Some error having been discovered, she executed another deed of similar purport, which concluded:" My intention is that each of my said six children . . . shall take a vested interest in . . . one-sixth of the said sum of £7,000." HELD that the parties entitled to sell the real estate were the trustees of the daughter's will, and not the trustees of her father's will. RE PAGET, MELLOR T. MELLOR, [1898] 1 Ch. [290; 67 L. J. Ch. 151; 78 L. T. 72; 46 W. R. 328-Kekewich, J. 11. Revocable Appointment of Policy Moneys -Subsequent Will disposing of all Testator's, Property Revocation-Wills Act, 1837 (1 Vict. c. 26), 8. 27.]—A general residuary bequest or devise is not in itself sufficient to revoke a previous appointment. A testator in 1882 effected a policy of insurance on his life for £500, and in that year by an instrument in writing he nominated and appointed certain persons to HELD-that her intention was clear; that the receive the policy moneys on his death. This second appointment was substitutional, and that instrument was lodged with the insurance society, each of the six children took one-sixth of the and remained with them until his death. By: £7,000. Power of Appointment-Continued. Hampton v. Holman ((1877) 5 Ch. D. 183; 46 England v. Larers ((1866) L. R. 3 Eq. 63; 15 L. J. Ch. 248—Jessel, M.R.) followed. W. R. 51-Lord Romilly, M.R.) followed. IN RE TANCRED'S SETTLEMENT, SOMERVILLE v. [TANCRED, [1903] 1 Ch. 715; 72 L. J. Ch. 324; 51 W. R. 510; 88 L. T. 164-Buckley, J. younger son. IN RE RISING, RISING. RISING, [1904] 1 Ch. [533; 73 L. J. Ch. 455; 90 L. T. 504Eady, J. (b) Exercise. And see WILLS, 366–369. 15. Testamentary Power-Execution-Incom- 17. Erercise-Power to charge limited Sum plete Recital-Intention" After the Death of my on Real Estate. General Power to appoint said Wife" read "subject to my said Wife's Charge General Gift Wills Act, 1837 Interest."]-A testator recited in his will that he (7 Will. 4 & 1 Vict. c. 26), s. 27.]--A testator had power under his marriage settlement to by his will declared that it should be lawful for appoint a fund after the death of his wife, though A. by deed or writing to limit and appoint, grant, the power was in fact somewhat wider in the sell, release and confirm all or any part of certain event of the wife's re-marrying, her life interest land to any person or persons by way of mortthen being cut down to one moiety. The testator gage or otherwise as a security for any sum not appointed that "after the death of my said wife" exceeding £2,000, or by any such deed, writing, the fund should as to three-fifths be held upon or by will to charge and incumber the lands with trust for his elder son and as to two-fifths for his the payment of any sum not exceeding £2,000 The wife re-married after the for such use, intent and purpose as A. should testator's death. The elder son having attained think fit to direct and appoint. A., by his will his majority, claimed his proportionate share of made after the Wills Act, and which did not the moiety set free by his mother's re-marriage. refer to the power, gave, devised, and bequeathed HELD-that there was an absolute intention to his wife all his property, real and personal, to appoint the entire fund subject to the wife's and all his estate, goods and chattels, money and interest; that the testator's reference to his charges secured upon lands of or to which he was wife's death showed that he did not intend to possessed or in any way entitled. displace her interest; that the reference to the point of time at which the prior interest determined was not the material matter, but the reference to the prior interest itself was important; that the true meaning of the words "after the death of my said wife" was "subject to my said wife's interest": that the elder son was therefore entitled to payment of three-fifths of the free moiety of the fund. Maddison v. Chapman ((1858) 4 K. & J. 709, 719-Wood, V.-C.) followed. IN RE SHUCKBURGH'S SETTLEMENT, ROBERT- 16. Testamentary Power-Excessive Execution -Cyprès.]-A cyprès estate can only be implied in lieu of excessive limitations of real estate under a testamentary power, when it will include all persons intended to take under such void limitations, and no others. B. had power to appoint real estate among his children or other issue born in his lifetime. He appointed it to his son W. for life with remainders to his sons and grandsons in tail male with remainder to his daughters, with remainder to testator's daughter for life with remainder to her sons in tail male. Upon the true construction of the will the remainders to W.'s children (who were not born) failed; but it was contended that W. took an estate tail by the doctrine of cyprès. HELD-that W. took only a life estate, for no estate tail could be given to him which would not defeat the testator's intention by including a class for whom he did not mean to provide, or excluding persons for whom he did intend to provide. HELD-that A.'s will did not operate under sect. 27 of the Wills Act as an exercise of the power of charging and appointing in favour of the wife. In re Gomes, Greene v. Gordon (34 Ch. D. 65) distinguished. The 27th section of the Wills Act presupposes the existence of some real estate, or some personal estate, as the case may be, which is subject to a general power of appointment, and which, though not the testator's property, is at his uncontrolled disposition. The language of the section does not extend to the creation of property at the | expense of another, or to the imposition of an otherwise non-existent charge upon the property of another, or to this conversion pro tanto of the real estate of another into a money charge, which if and when charged will be personal estate which the testator will have power to appoint as he may think fit, but which has no existence unless and until the testator creates it. IN RE ESTATE OF JOHN WALLINGER AND [OTHERS, [1898] 1 Ir. R. 139-C. A. (Ir.). 18. Exercise of a Power by Will-Exercise of a Power by subsequent Will—“ Gire, devise, bequeath, and appoint"-Evidence of no other Power by first Will superseded by Exercise of Power-No Clause of Revocation-Exercise of Power by second Will.]-The mere fact of making a subsequent testamentary paper does not work a total revocation of the prior one, unless the latter expressly or in effect revoke the former, or the two be incapable of standing together, and if a subsequent testamentary paper, whether will or codicil, be partially inconsistent with one of earlier date, then such later instrument will revoke the former as to those parts only where they are inconsistent. A testator's testamentary paper, dated October 16th, 1894, contained these words: "I hereby |