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Opinion of the Court, per DENIO, Ch. J.

as embraced in a testamentary paper, which professed only to dispose of his own property.

But in Nannock v. Horton (7 Ves., 391), the principle that the amount of property at the time of making the will could not be regarded in ascertaining whether the power was intended to be executed, was carried to an extreme length. By the will of Thomas Norman he directed that £6,000 of three per cent consols be purchased in the name of his executors, and gave the interest and dividends thereof to his son, Robert Norman, for life, with a power of appointment in him as to £4,000 of the stock in favor of such person or persons as by deed or will, executed in the presence of two witnesses, he should direct. He also gave him a pecuniary legacy of £4,000. By the will of Robert Norman, which did not refer to the power, he bequeathed to his mistress £2,000 of such stock as was mentioned in the power; to his wife, £1,000, and to five other persons £500 each, and did not dispose of the residue, or appoint executors. It appeared that, exclusive of his right to the £4,000 of stock to which the power related, his whole personal estate was not equal to the legacies given by his will. One of the several questions debated was whether the will could be considered an execution of the power, and it was held it could not. Lord ELDEN set off with the singular remark: “I am not sure that the rule does not oblige the court to act against what probably might have been the intention nine times out of ten." He proceeded to say that the legacies were not specific, though of the same kind of stock as that embraced in the power, as, if he had no such stock, it would have to be purchased by the executors for the legatees. He then referred to the distinction between wills of real estate and of personalty — that the former were specific, and the latter looked to the death of the testator. He then mentioned Andrews v. Emmot, and said that case, and others of that class, referring evidently to Standen v. Standen and Hales v. Margerum,“ are clear, distinct and positive, and express to the point, that you are not to inquire into the circumstances of the testator's property at the date of the will, to determine whether he was executing

Opinion of the Court, per DENIO, Ch, J.

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the power or not;" and he concludes by saying, that “whatever might have been the intention, I am bound by the authorities to say this testator did not mean to affect any property but what was his own."

After this very emphatic judgment of the eminent chancellor, it was not to be expected that any English equity judge would depart from the rule thus laid down.

Accordingly, in Jones v. Tucker (2 Mer., 533), there was a devise to a trustee of certain real estate, in trust to permit Elizabeth Smith, widow, to receive the rents, &c., for life, and upon her death the trustee was to sell them and out of the proceeds to pay £100, which was bequeathed to such person or persons as the said Elizabeth Smith should, by her last will, appoint; and subject to this, the estates were given to the defendant. Elizabeth Smith made her will as follows: “I will and bequeath to Mrs. Mary Jones (the plaintiff) the sum of one hundred pounds; likewise the whole of my household furniture, plate and linen, &c. Likewise I appoint the said Mary Jones to be my sole executrix.” Mr. Sugden, who was for the plaintiff, asked for a reference to inquire into the state of the property of the testator at the time of making the will, it being alleged in the bill that she was not possessed of or entitled to any personal estate, except a few articles of household furniture, which were, shortly after her death, sold for £13, which was applied to the payment of hef funeral expenses. This was opposed; and it was argued that the rule, as laid down in Andrews v. Emmot, was that there could be no inquiry as to the circumstances of personal property with a view to this question. The master of the rolls, Sir WILLIAM Grant, said "this was as strong a case for an exception to the rule, as could be brought before the court.” “If a person,” he added, “having no property at all, and only a power over a certain sum of money, gives that single sum, little doubt can arise as to her intention. But the question is, how we can get at the fact, and whether there can be an inquiry for the purpose of ascertaining it.” He then, went over the cases of Andrews v. Emmot and Nannock v. Horton, and concluded thus: “In my own


Opinion of the Court, per DENIO, Ch. J.

private opinion I think the intention was to give the £100 which the testatrix had power to dispose of; but I do not conceive that I could judicially declare the power to have been executed, even if the result of an inquiry should verify the representation that is made as to the state of her property.”

In Jones v. Curry (1 Swans., 66), the case was this: There was a bequest to Isabella Cammon, of certain household furniture, beds, linen, &c., and all the residue of the testator's personal effects for life, with power to her to bequeath the same by her last will and testament. By her will she gave the whole to her father and mother, for life, with remainder, except her household furniture, linen and plate, two legacies of £100 each, and one of £50, and an annuity of £10 per annum. She had no furniture except that which she held under the bequest for life, and no other property, except a mortgage debt of £100. It was held by Sir THOMAS Plumer, master of the rolls, that the will did not pass the property embraced in the power. He puts the decision upon the last mentioned case of Jones v. Tucker, and states the question to be whether the court can collect from the face of the will an intention in the testatrix to pass this property. “I say,” he adds, “on the face of the will, because it is now clear that the court cannot look beyond the will, whatever is the inadequacy of a testator's property to satisfy the terms of a will; and whatever may be the conviction of the court of his intention to execute the power, the state of his personalty at the time of the will, or of his death, cannot be examined for the purpose of collecting evidence of his intention."

After these cases the rule seems to have been generally acquiesced in. In the following cases testamentary gifts, which in terms embraced only the testators' property, but in which there were pretty strong presumptions that a power of appointment which the testators possessed were intended to be exercised, were decided against the parties claiming under the power. (Webb v. Honner, 1 Jac. & Walk., 352; Lovell v. Knight, 3 Sim., 275; Lempneie v. Valpy, 5 id., 508; Buxton v. Buxton, 1 Keene, 753; Hughes v. Turner,

Opinion of the Court, per DENIO, Ch. J.

3 Mylne & K., 666.) In some of these, public stocks of the same descriptions with those embraced in the power, were given by name; in others, portions of the property over which the power extended, were specifically given, and in one of them, Lovell v. Knight, the testatrix had nothing of importance to bequeath, except that which the power authorized her to dispose of. But the court steadily adhered to the doctrine that it could not inquire into the property of the testator when the will was made.

In Davies v. Thorne (3 De G. & Sm., 347), anno, 1849, a testatrix had, under a will made in 1833, a power of appointment over £1,000, and gave several pecuniary legacies of different sums, amounting together to precisely £1,000, and gave her clothes to one of her sisters. Independent of the fund subject to the power, her property was altogether insufficient for the payment of the legacies. It was, however, held by Sir J. L. KNIGHT BRUCE, vice-chancellor, that the will was not an execution of the power. According to the report in the Jurist (vol. 13, p. 384), he remarked, in giving judgment: “I must, although almost ashamed to say it, decide against what I firmly and sincerely believe to have been the intention of the testatrix, that the power of appointment has not been exercised. I am bound, however, by the authorities; I cannot help myself, and I must so decide.”

The force of these cases, and several others of a similar tendency, which I have examined, but which it would be tedious to cite, is, I think, somewhat broken in upon by the case of Innes v. Sayre, decided in 1849 and 1851, in the first instance by Vice-Char:cellor WIGRAM, and affirmed on appeal by Lord Chancellor TRURO (1 Hare, 377; 8 Eng. Law & Eq., 157). The testatrix had, under her marriage settlement and under the will of her late husband, power of appointment, by will, over about £4,830 of three per cent public stocks, all of which, except about £500, were of the class called three per cent consols. By her will she gave two legacies of £1,000 each and three of £500 each, all except one to charities; and she left the “ remainder in the three per cent,” and certain stocks of other kinds, to trustees, for certain other


Opinion of the Court, per DENIO, Ch. J.

beneficiaries. This was held an execution of the power of appointment. As she had no stocks of the kind mentioned, in her own right, at the time of making her will or at her death, it was considered that she must have referred to the three


cent consols as an existing thing, though, standing by themselves, these legacies of stock must be considered as general and not as specific legacies. Much stress was placed on the word remainder, which indicated, it was thought, that some specific fund, capable of division, was referred to, and that must have been the aggregate of the three per cent consols. When it was considered that bequests of particular stock are not specific, and that when there is not such stock on hand at the death of the testator, it must be purchased, or an equivalent in money paid, it is impossible to reconcile this case with the doctrine that you cannot inquire as to the testator's property subject to his will, in order to ascertain whether he intended to execute a power of appointment. This shows that the court was embarrassed by the rule and sometimes struggled to avoid its effect when its application would disappoint the intentions of the party authorized to execute a power.

It will be observed that there is no English case which presents the circumstance of a will executed in extremis, and where that fact was known to the testator. Whether that would be considered as furnishing an exception to a rule founded upon the consideration of the ambulatory character of a will of personalty it is impossible to say. It is of the nature of general rules that they must be sometimes applied to cases not within the reasons upon which they were established. This inconvenience is, however, generally compensated by the certainty which is secured by having a steady principle to appeal to in doubtful cases. It enables parties to understand their rights, and prevents litigation. It would be easy to make a popular argument against a series of adjudications which, while they profess to carry out the intentions of parties clothed with powers of this nature, do, by the application of positive and artificial rules, so often disappoint those intentions. But I should not feel authorized to act

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