wife, Harriet Johnson surviving him, she directed her trustees, immediately thereupon, to set apart a sufficient sum out of the £4,500 to pay Harriet Johnson, during her life, out of the dividends, &c., an annuity of £100; and that the remainder of the sum of £4,500 should, immediately upon her brother's decease, be equally divided between her nieces, Elizabeth Austin and Mary Austin. She then proceeded thus:

"And I also direct, that in case my said brother shall survive his said wife [which happened], in that event, the same proportion of the £4,500 as I have directed to be divided between my said nieces, Elizabeth Austin and Mary Austin, shall, in that event, immediately after the decease of my brother, in the same way, be equally divided between them. And I further direct, that such proportions of the £4,500 as shall be set apart, in case my said brother shall die before his said wife, for securing to his wife for her life the sum of £100 per annum, or in case of his surviving his wife, so much of the £4,500 as would be. equal to the production of £100 per annum, from the dividends, &c., thereof, shall, by my said trustees, immediately upon my said brother's decease, be set apart, and that my said trustees shall pay the said sum of £100 per annum to my granddaughter, Adelaide Dalton, for life; and I direct that after her death, the same shall be equally divided between the children of my nephew, John Austin."

By a codicil the testatrix revoked the £100 annuity given by her will to her granddaughter, Adelaide Dalton, "she being otherwise provided for."

The testatrix died in 1847; William Johnson survived his wife Harriet, and died in 1852 and Adelaide Dalton was still living.

The first question was, whether the bequest to the children of John Austin, of so much of the £4,500 as would produce £100 a year, was accelerated by the revocation of the bequest of the annuity of £100 to Adelaide Dalton for life, or whether its enjoyment by such children was postponed till the decease of Adelaide Dalton.

On the question of acceleration, the case of Lainson v. Lainson was cited.

The Master of the Rolls reserved judgment.

THE MASTER OF THE ROLLS [SIR JOHN ROMILLY]. Though I think that the same rules which relate to real estate do not apply to personalty, and that therefore this case is distinguishable from Lainson v. Lainson,18 still I think that the decision here, on the construction of this will, must be the same, and that it must be held that the interest of the children of John is accelerated. Without that, I do not see how I can avoid holding that it fell into the residue, which is given in another way. The interest of the children takes effect at once, without

18 18 Beav. 1. A devise of land to A. for life and from and immediately after his death to B. in tail. A codicil revoked the devise to A. Held, that B.'s estate was accelerated.-Ed.

NoR

waiting for the death of Adelaide Dalton.19 [The balance of the case, relating to another point, is omitted.]

19 See also Jull v. Jacobs, 3 Ch. D. 703 (1876); Slocum v. Hagaman, 176 Ill. 533, 52 N. E. 332; Cook's Estate, 10 Pa. Co. Ct. Rep. 465.

In Craven v. Brady, L. R. 4 Eq. 209, L. R. 4 Ch. App. 296, where there was both an appointment and a devise to A. for life, subject to a condition subsequent of forfeiture on alienation, with a remainder to B., B.'s remainder was accelerated upon the forfeiture of the life estate.

But where an appointment was made to a wife for life, "upon condition that she should thereout maintain and educate his children, in such manner as his executors should think proper," with remainder to the eldest son, and the appointment to the wife was void because in excess of the power, but the gift in default of appointment was to the children equally, the remainder was not accelerated, but the rents and profits went to the children equally during the life of the wife. Crozier v. Crozier, 3 D., R. & W. 373. 3

Suppose, after a devise of real estate to the wife for life, the testator directs that at the wife's death the executor shall sell and divide the proceeds between A. and B. If the wife renounces, may the executor sell at once and divide? See Dale, Adm'r, v. Bartley, 58 Ind. 101.

Now, suppose the executors are directed to sell at the wife's death and divide the proceeds into two shares, one to go to A. or his issue, the other to B. or his issue, with a gift over, if either dies without leaving issue before the legacy becomes payable, to C. Suppose the widow renounces. Are A. and B. entitled to have the property sold and divided at once? See Coover's Appeal, 74 Pa. 143. If so, do A. and B. take indefeasible shares?

Suppose real estate be devised to the widow for life, or until her remarriage, with a gift "after her death to be equally divided between lawfully begotten children of my brothers, John, David, Jacob and James," or such of them as may be living at the time of her death. After the widow's remarriage, were the remaindermen who then survived entitled? See Augustus v. Seabolt, 3 Metc. 155 (Ky. 1860).

Suppose a devise to trustees upon trust to make certain payments of income to the wife during her life; the remainder of the net income to be divided between two daughters for life, with a gift over to their children, and a further gift over upon the death of the children without leaving issue [which happened], "then, immediately after the decease of my wife, if she survive my said daughters, but if not, then immediately after the decease of the last surviving one of my daughters, my said trustees shall divide my estate into two equal shares, and shall at once proceed to distribute one of such shares among the lawful surviving descendants of my own brothers and sisters, such descendants taking per stirpes and not per capita." The widow renounced. Both daughters died without issue. Then brothers and sisters of the testator died, and their descendants during the life of the widow seek a distribution. Are they entitled? See Blatchford v. Newberry, 99 Ill. 11.

**

*

Gray, Rule against Perpetuities (3d Ed.) § 251: "In former editions it was said: Thus if an estate is given (1) to A. for life, (2) to A.'s unborn child for life, (3) to the child of such unborn child for life, (4) to B. in fee, B.'s estate is good, although the remainder to the child of A.'s unborn child is too remote. So although the later interest is not vested at its creation, yet if it must become vested within the limits fixed by the Rule against Perpetuities, it will be good.' But this is incorrect. A vested estate is an estate which is subject to no condition precedent except the termination of the precedent estates. [See §§ 8, 101, ante.] In the case put the estate to B. is subject to the condition precedents of (1) the death of A., (2) the death of A.'s unborn child, (3) the death of the child of A.'s unborn child. A. and A.'s unborn child have estates for life, but the gift to the child of A.'s unborn child being remote, said child has no estate; and therefore as B.'s estate is subject not only to the termination of the life estates of A. and of A.'s unborn child, but also to the contingency of the death of an unborn person who has no estate, the estate given to B. is too remote, and so it was held in In re Mortimer [1905, 2 Ch. (C. A.) 502. A note by the author, 23 Law Quart. Rev. 127, is wrong. See 1 Jarm. Wills (6th Ed.) 352–354].”

PART III

POWERS

CHAPTER XXI

OPERATION, CLASSIFICATION, RELEASE AND DIS

CHARGE

SIR EDWARD CLERE'S CASE.

(Court of Queen's Bench, 1599. 6 Coke, 17b.)

See ante, p. 63, for a report of the case.1

RELEASE AND DISCHARGE OF POWERS, by John Chipman Gray, 24 H. L. R. 511: The first distinction in powers rests on the nature of the instrument by which the power is exercisable. It may be exercisable by either deed or will, or by will alone. A power may be made exercisable by deed and not by will, but the law as to releases is the same in the case of powers of this description as it is in that of powers exercisable by either deed or will. For the essential difference is whether the power can be exercised at once, or only on the death of the donee.

1 In Roach v. Wadham, 6 East, 289 (1805), the donor of the power conveyed in fee to the donee reserving rent and the donee agreeing to pay rent. The donee then appointed the fee and the appointee covenanted to pay the rent to the donor. Held, the donor could not sue the appointee for the rent. Sugden on Powers (8th Ed.) 144: "Moreton v. Lees, C. P. Lancaster, March Ass. 1819. Case reserved and argued before Lord Chief Baron Richards and Mr. Baron Wood, at Serjeants' Inn. The conveyance was by feoffment to the purchaser and his heirs, habendum to him, his heirs and assigns, to such uses as he should appoint by deed or will, and in default of and until appointment, to the use of the purchaser, his heirs and assigns. He exercised the power by an appointment in fee, and his wife brought an action to recover her dower. The objection was taken that the husband was in at the common law, and the power was void; but the contrary was decided, and the wife was held to be barred of dower. This decision, therefore, sets the point at rest. It has recently been followed by a case in Ireland. Gorman v. Byrne, 8 Ir. C. L. 394."

In Commonwealth v. Duffield, 12 Pa. 277 (1849), the donor, residing in Maryland, created by will a general testamentary power to appoint personalty in Maryland. The donee resided in Pennsylvania and appointed by will probated in that state. Held, the appointee was not liable for any collateral inheritance tax under the laws of Pennsylvania.

T-deed реи-прес

Relation to prop
A) app.

B) Callatural

658

POWERS

(Part 3

Again, powers are either general or special. Under a general power an appointment can be made to any one, including the appointing donee. Under a special power an appointment can be made only to certain persons or objects, or to certain classes of persons or objects other than the donee. Special powers are sometimes called limited powers.

Finally, the relation between the donee and the property over which he has the power of appointment may be one of four kinds: First. The donee may have an interest in the property from which the exercise of the power will derogate, as when the donee of the power owns the property in fee. This is called a power appendant. Second. The donee may have an interest in the property, but the exercise of the power will not derogate from such interest, as when A. has a life estate, with power to appoint by will. This is called a power in gross or collateral. Third. The donee has no interest in the property, but has himself created the power, as when a man conveying land in fee reserves to himself a power of appointment. This is also called a power in gross or collateral, to distinguish it from the power of the second kind, it will be called here a reserved power in gross. Fourth. The donee has no interest in the property and did not create the power. The power in this case is said to be simply collateral.

This somewhat clumsy nomenclature is derived from an opinion of Hale, C. B., in Edwards v. Sleater [Harde. 410, 415, 416].

DOE ex dem. WIGAN v. JONES.

(Court of King's Bench, 1830. 10 Barn. & C. 459.)

LORD TENTERDEN, C. J. This was a special case, argued during the last term. It appeared by the case that in Michaelmas term 1822 a judgment was entered up against T. Baker at the suit of the defendant, who, on the 13th of December, 1827, sued out an elegit, under which the lands in question were delivered to him by the sheriff. In the mean time, between the entering up of the judgment and the execution of the elegit, viz. in November, 1826, the then defendant, Baker, had acquired these lands by a conveyance to such uses as he might appoint, and in the mean time to the use of himself for life, and so forth. In March, 1827, Baker mortgaged the estate for £4000 to the lessor of the plainof appointpower tiff, and appointed the use to him for 500 years; and the question for the court was, Whether this conveyance, under the ment, defeated the judgment-creditor? It has been established ever since the time of Lord Coke, that where a power is executed the person taking under it takes under him who created the power, and not under him who executes it. The only exceptions are, where the person executing the power has granted a lease or any other interest which he may

2 See Maundrell, 10 Ves. 246, 254.

8 The opinion only is given.

do by virtue of his estate, for then he is not allowed to defeat his own act. But suffering a judgment is not within the exception as an act done by the party, for it is considered as a proceeding in invitum, and therefore falls within the rule. We are, therefore, of opinion that the nonsuit must be set aside, and a verdict entered for the plaintiff. Postea to the plaintiff.*

JONES v. WINWOOD.

(Court of Exchequer, 1838. 3 Mees. & W. 653.)

ALDERSON, B. In this case we propose to give the reasons which have induced us to send our certificate to the Lord Chancellor in favor of the plaintiffs.

By the original conveyance, dated the 27th and 28th of December 1819, certain lands were settled to such uses as William T. Davies, and Frances his wife, should at any time or times, and from time to time, during their joint lives, by deed or other instrument in writing duly executed, direct and appoint, and in default of and until such appointment, to the use of William T. Davies for life, with remainder to trustees to preserve contingent remainders, then to the use of his wife for life, then in like manner to the use of his sons in succession in tail general, and then to the use of the daughters in tail general, with cross remainders, and with remainder in fee to William T. Davies himself.

In 1824 William T. Davies took the benefit of the Insolvent Act, and conveyed to the provisional assignee, on the 6th of August, 1824, all his interest in the premises, which was subsequently transferred by the provisional assignee to Isaac Jones, the assignee of the estate in the usual way.

Under these circumstances William T. Davies and his wife in execution of their joint power of appointment conveyed on the 16th and 17th of September, 1828, by lease and release, the premises to Patrick Brown and Jenkyn Beynon in fee, upon trust for the creditors of W. T. Davies. And the point to be considered is, whether by this appointment any estate passed, and what estate, to the trustees.

The first question is, whether the power was revoked by the convey. ance to the provisional assignee; and we are of opinion that it was not. Indeed, on this part of the case there seems to be little difficulty.

No authority was cited for the proposition contended for by the defendant's counsel, that where by previous conveyance a party has prevented himself from executing a power as fully as he could have originally executed it, the power is at an end; nor can any such proposition be maintained. Even upon the authority of the decision of

4 A power is not extinguished by a judgment against the donee. Leggett V. Doremus, 25 N. J. Eq. 122.

The opinion only is given.