CH. 3, s. 6. execution in equity. PT.III. T.12, in equity. Thus, if a man, having a general power of appointment, appoints the fee by way of mortgage, the power is wholly executed at law; but as equity considers a mortgage merely a security for the debt, it operates in equity as a partial execution only (a). 2119. Execution at different times and over diffe rent parts of the property. Creation of distinct interests under a power of appointment in fee. Powers of appointment and revocation may be executed at different times over different parts of the property, or over the whole property, but not to the full extent of the power. So that where a man has a general power of appointment, he may appoint an estate for life at one time, and the fee at another time (b). 2120. There ought to be no trifling distinctions between a power of appointment in fee and an estate in fee, upon merely technical grounds. The power must not be exceeded, nor its directions evaded; but where there is no prohibition, everything which is legal and within the limits of the authority should be supported; so that a power to appoint a fee, with no prohibition against giving a less estate, ought to be held to authorize any legal limitations within the scope of the power which could be served out of a commensurate estate, that is, an estate in fee. Hence, where a person had a power of appointing to one or more of his children in fee, and he, in exercise of his power, whether referring to it or not, devised the lands to his wife for life, to maintain and educate his children, and to provide portions for them, with remainder to his eldest son in fee, it was held by Sir E. Sugden, when Lord Chancellor of Ireland, that the gift of the life estate to the wife was void, as she was not an object of the power, but that the devise to the son was a good appointment, though in remainder; and that the direction for maintenance and education of the children, and the (a) 1 Sugd. Pow. 343; 4 Cruise T. 32. c. 16, § 42. (b)1 Sugd. Pow. 341-2; 4 Cruise T. 32. c. 16, § 38, 41; Watk. Conv. 3rd ed. by Prest. 145. legacies to them, were pro tanto a good execution of the P.III. T.12, power (a). 2121. CH. 3, s. 6. A donee of a power may suspend an appointment or Appointrevocation upon a contingency (b). 2122. any ment or revocation on a contin Mode of deed or will intended as an appoint In the case of a power to appoint an estate by deed or gency. will, generally, without expressing in what manner it is to executing a be executed, the deed or will is to be executed like other deed or will; so that, if the instrument was to be ment. a will, or “a writing of the nature of a will," and the subject of the power was personal estate, it might, before the stat. 1 Vict. c. 26, have been executed by a mere writing, without signature or attestation; while, if the property was real estate, the will must have been executed with the solemnities required by the Statute of Frauds (c). On the other hand, two witnesses, although not sufficient to a devise of an interest in land, were sufficient to an exercise of a power by will, to be attested by that number of witnesses. But by ss. 9 and 10 of the stat. 1 Vict. c. 26 (d), one uniform mode of executing a will is prescribed, whether the will is an appointment or not. 2123. A testamentary instrument signed, but not attested so as to render it valid as a will, is not a good execution of a power to appoint by writing signed or by will (e). 2124. with formalities stated. A deed executing a power should state accurately the Compliance compliance with every formality required to be observed required (ƒ). And in general (at least so far as the stat. 22 & 23 should be Vict. c. 35, s. 12 (g), may not avoid the necessity), where powers require the attestation of facts, the facts must be stated in the memorandum of attestation (h). Thus, (a) Crozier v. Crozier, 3 Dru. & War. 353. (b) 1 Sugd. Pow. 439, 440. See also Caulfield v. Maguire, 2 J. & L. 170. (e) 1 Sugd. Pow. 280-1; 4 Cruise T. 32, c. 16. § 19, 21. (d) See infra, T. 15, Ch. 1, No. II., and par. 2127. (e) In re Daly's Settlement, 25 (f) 1 Sugd. Pow. 324. (h) Watk. Conv. 3rd ed. by Prest. CH. 3, s. 6. PT.III. T.12, where a power was given of appointing by any deed under hand and seal, executed in the presence of and attested by witnesses, a deed, though in fact signed as well as sealed and delivered in the presence of two witnesses, was held to be not a good exercise of the power, in consequence of the attestation clause not expressing that the deed was signed as well as sealed and delivered (a). This oversight having frequently been committed, the stat. 54 Geo. 3, c. 168, was passed to remedy it by a retrospective operation, but without extending to future transactions (b). The word "witness," however, will be a sufficient form of attestation, if all the ceremonies are previously stated in the body of the instrument or at the conclusion of it (c). Where witnesses are required, but nothing is said about the witnesses attesting the execution, the power will be duly executed although the witnesses do not subscribe the indorsed attestation, or some of them do and others do not (d). 2125. Relief in equity alone. In whose favour. II. Relief against the Defective Execution or Non- Relief against a defective execution of a power can only be had in a Court of Equity, and only where the person applying for such relief is a purchaser under the donee of the power (the term purchaser including a mortgagee and a lessee), or an intended husband or a creditor of the donee of the power, or where the applicant is a wife or a legitimate child of such donee, even when not claiming as a purchaser for valuable consideration, because they are in some degree considered as creditors by nature (e). The like relief is extended to a charity (a) Waterman v. Smith, 9 Sim. 629. (b) Burton, § 450; 1 Sugd. Pow. 307-8. () 1 Sugd. Pow. 300. (d) 1 Sugd. Pow. 312—13. (e) 2 Sugd. Pow. 91-94, 97-8; 1 Story's Eq. Jur. § 95, 169, 170; 4 CH. 3, s. 6. (a). Indeed an appointment to a charity, by any writing Pr.III. T.12, however informal, is valid, as the Statute of Charitable Uses supplies all defects of assurance which the donor was capable of making (b). But this equity is not extended to a mere volunteer, or even to a husband (except in the case of an intended husband, who is regarded as a purchaser for valuable consideration), or to a natural child, or to a grandchild, or to a father, or mother, or brother, or sister (c). But cases of fraud constitute an exception to this; as where the person interested in the non-execution of the power has the deed creating the power in his custody, and refuses to allow the donee of the power an opportunity of inspecting it to enable him to execute it aright (d). 2126. case of mode of execution. Relief is granted where there is a defect in the mode Relief in of execution: as, 1. Where the power ought to be defect in the executed by deed, but is executed by will. 2. Where, according to the old law, the power was required to be exercised by a testamentary instrument executed and attested in a particular form, but such instrument is wanting wholly in the forms of signature and attestation (e). This was no derogation from the Statute of Frauds as regarded real estate, because an appointment under a power did not take effect under that statute. But all Appoint appointments by will, made on or after the of will made on January, 1838 (f), must be executed like other wills; Jan. 1, 1838, for by the stat. 1 Vict. c. 26, s. 10, it is enacted, that "no other wills. Cruise T. 32, c. 17, s. 9, 15—17, 19, 20; Morse v. Martin, 34 Beav. 500; In re Dykes' Estate, L. R. 7 Eq. 337; Kennard v. Kennard, L. R. 8 Ch. Ap. 227. (a) 2 Sugd. Pow. 94; 1 Story's Eq. Jur. § 95. (b) 1 Sugd. Pow. 251; Innes v. Sayer, 3 Mac. & G. 606. (c) 2 Sugd. Pow. 94-5; 1 Story's Eq. Jur. § 95. 1st (d) 2 Sugd. Pow. 140; 1 Story's Eq. Jur. § 94, 199; 4 Cruise T. 32, c. 17, § 22-3. (e) 2 Sugd. Pow. 125-6; 1 Story's Eq. Jur. § 97, 173-4; 4 Cruise T. 32, c. 17, § 7. (f) 2 Sugd. Pow. 125-6; 1 Story's Eq. Jur. § 174. ments by or after cuted like CH. 3, s. 6. quired need not be PT.III. T.12, appointment made by will in exercise of any power shall be valid, unless the same be executed in manner Other re- herein before required" (a). By the same section it is solemnities enacted, as regards wills made on or after the 1st of observed. January, 1838, that "every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity." But in West v. Ray (b), it was held, contrary to Buckell v. Blenkhorn (c), that, where a power of appointment is to be exercised by "any deed or writing" under the hand and seal of the donee, it cannot be exercised by a will executed with only the formalities required by 1 Vict. c. 26, notwithstanding the 10th section of that Act; the power not being in terms a power to appoint by will, but only by any deed or writing. 2127. But not where "a deed or writing" is required. Appointments by deed or writing not By the stat. 22 & 23 Vict. c. 35, s. 12 (13 August, 1859), a deed hereafter executed in the presence of and attested ary after the by two or more witnesses in the manner in which deeds testament 13th of August, 1859. are ordinarily executed and attested shall, so far as respects the execution and attestation thereof, be a valid. execution of a power of appointment by deed or by any instrument in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or other form of execution or attestation of solemnity: Provided always, that this provision shall not operate to defeat any direction in the instrument creating the (a) 2 Sugd. Pow. 125-6. (b) 1 Kay 385; see Collard v. Sampson, 4 D. M. & G. 224; Orange v. Pickford, 4 Drewry 363; Taylor v. Meads, 13 W. R. 394 (L. C.). (c) 5 Hare 131. |