cution of a power, lies between an appointee under a power, without confideration, and a remainder-man, the latter having a vested estate, will clearly be entitled against the former, unless the appointee can fhow that the intereft of the remainder-man is divested by an actual execution of the power in due form, is Fraud. 3 Cha. Ca. 89.92. 122. § 11. With respect to the second ground upon Where there which a court of equity will fupply a defect in the execution of a power, namely, fraud or deceit; as it is one of the principal objects of a court of equity to relieve against fraud and deceit, it has long been eftablished, that where a party interested prevents a strict compliance with the circumftances required in the execution of a power, from immoral motives, there, if the person who has the power does any act that plainly evinces his intention to execute it, such act will, in equity, be deemed a good execution of it. S 12. Thus, where the remainder-man gets the Gilb. Cha. deed into his poffeffion, and will not allow the tenant 306. for life to have a fight of it; there the tenant for life may execute conveyances, and though he does not pursue the terms of the power, yet equity will relieve, even in favour of a volunteer, because the remainderman shall not take advantage of his own wrong, by withholding from the tenant for life, the fight of his power. § 13. With refpect to the third ground upon which a court of equity will fupply a defect in the execution of a power, namely accident; as it is an object of courts Where a com tion is preplete Execuvented by Accident. courts of equity to relieve against all manner of acci dents, even in favour of volunteers, it being unconscionable for a remainder-man to take advantage of 3 Cha. Ca. 68. them; therefore it was agreed in Bath and Montague's cafe, that if a man makes a conveyance, with a power But a Nonexecution will not be fupplied. Piggot v. Arundel v. 2 Vers. 69. of revocation, in the prefence of four privy counfellors, and he is fent by the King to Jamaica, where that circumstance becomes impoffible, there equity will allow him to revoke without it. § 14. Although we have seen that a court of equity will, in many inftances, aid a defective execution of a power, yet it will never interpofe in the cafe of a non-execution of a power, which always leaves it to the free will and election of the party to whom the power is given, either to execute it or not. And the intervention of death, between a man's refolving to execute a power, and his actually executing it, is not of itself, even in cafes where the act is of fuch a nature as a man is under an obligation to perform, a ground for the interpofition of a court of equity, in favour of the perfon intended to have been benefited by the doing thereof, although fome steps be taken towards completing fuch intention. § 15. A feme covert having a power of revocation and appointment, and being fick, wrote a letter to her attorney, who had drawn her fettlement, defiring he would prepare a deed to give the inheritance to her niece, and on the back of the letter it was written. that the attorney fhould keep it a fecret. The attorney, however, communicated this letter to the huf band, band, and feveral delays intervened, during which the attorney, having been examined, fwore, that when he communicated the letter to the husband, he did not propofe any method to the husband, or use any means to prevent the revocation. The question was, whether this letter amounted to a revocation in equity; and it was decreed that it did not. Ashton, § 16. A. having a power of revocation, by any Smith v. writing under his hand and feal; and being defirous of providing for his daughters, prepared notes in writ-Freem. 308. ing, which he declared fhould have the effect of his laft will, and which he called inftruments for his counfel to draw up his laft will in form. His counsel drew a writing, and had the fame ingroffed, leaving blanks for the names of the trustees, A. died before he had executed the will. A bill being exhibited by the daughters for the portions given them by these instructions, an issue was directed to try whether these notes were part of the last will of A.; and a verdict was given that they were a will; whereupon the Chancellor decreed them to be a good execution of the power. 1.25. § 17. This cafe has been cited to prove, that a Treat. of Eq. non-execution of a power will be aided in equity, but B. 1. ch. 4. it is clear from the circumftance of directing an iffue to try whether these notes amounted to a will, that the court did not think the accident of the father's death, before he had completed his intent towards 2 Vern. 465. Holmes v. his younger children, a fufficient foundation for relief. It therefore directed a trial to ascertain whether these notes were a will; and it being found that they were, the question then was reduced to this, whether the court could relieve the younger children, in respect that the will wanted circumstances which were required by the power, to attend the execution of it; which, as between the younger children and the heir, it certainly would do, the cafe being by the verdict a cafe of a defective execution only. § 18. In the cafe of Laffells v. Lord Cornwallis, the Lord Keeper faid, that the Court of Chancery had not gone fo far, as where a perfon had a power to raise money, if he neglected to execute that power, to do it for him; although he thought it might be reasonable enough, and agreeable to equity, in favour of creditors. But in a modern cafe it was held, that where a perfon had a power of charging lands with 2000/., which he never executed, the power could not be confidered as affets for payment of debts, THE 10. Powers collateral not barred 11. A Power may be merged. 14. In what Cafes fuch Power 18. When a Power becomes void. Section 1. HE firft and moft obvious mode by which A complete powers, whether relating to the land or collateral Execution. to it, may be extinguished, is by a complete execution of them. And it was formerly held, that even a partial execution of a power, operated as an extinguishment of it, but this doctrine is not now held to Woolfton, be law. Zouch v. Ante ch. 16, f. 33. 1 Inft. 265 l. § 2. Powers relating to the land, whether appen- A Release. dant or in grofs, may be barred by a release, to any perfon, having an estate in poffeffion, remainder, or reverfion, in the lands, to which the power relates: for where powers are given to a perfon having an eftate or interest, either present or future, in the land, the |