The last American Congress made a complete and authoritative revision of the statutes of the United States up to the year 1873. Some years ago the work of condensation was submitted to a commission of lawyers, and the result of their labours was laid before Congress. During last session, Congress delegated the whole matter to a committee composed of the lawyers and judges in the House and the Senate. This small professional body, with admirable zeal and patience, have taken the whole body of the statutory law of the States, and, in the language of Sir Francis Bacon, have "reduced the concurrent statutes, heaped one upon another, to one clear and uniform law." The whole of the revised statutes of the United States will now be given to the country in one or at most two volumes. We may well echo the language of the Legal Gazette of Philadelphia (from which our information is taken) and say "the importance of this work it is impossible to overrate."

RELATIVE IMPORTANCE OF

CASE-LAW.

(Continued from page 274.) Coming next to the considered decisions of Judges sitting in Banc or in Courts of first instance in Chancery, we find that the principles regulating the authority of such decisions are well settled. An erratic Judge will sometimes overleap the bounds imposed by the comity of Courts of co-ordinate jurisdiction, and run amuck against the decisions of other Judges of equal authority. But apart from this, it may be laid down as one of the rules observed by all Judges of first instance, that the latest decision upon a litigated question is the one followed in subsequent cases involving the same point. The language of Martin, B., in

Reg. v. Robinson, L. R. 1 C. C. 80, indicates this general principle. He observes as follows: "When a point has once been distinctly raised and decided in a reported case, I, for my part, regret to find such a question criticised and disputed over again. When a point has once been clearly decided, I think it is far better to acquiesce in the decision, unless it can be a higher brought for review before Court." And this submission to a prior decision will in ordinary cases be observed, even though the Judge deciding the latter case does not approve of the case he follows, as was done by Lord Selborne, sitting for the Master of the Rolls, in Pike v. Dickinson, 21 W. R. 862.

If, however, the latest decision is at variance with earlier cases, and they are not cited or considered therein, then it very much affects the value of such a decision. Earlier conflicting decisions being thus overlooked, the Judges have generally felt themselves at liberty to disregard the later cases, if such earlier ones are more numerous or more satisfactory to their minds. Thus in Gillan v. Taylor, 21 W. R. 823 (a case of charitable gift), Wickens, V. C., remarks: "I have unwillingly come to the conclusion that I am bound by the case of the Attorney General v. Price, 17 N. S. 371, and Isaac v. Dr. Friez, Ambl. 575. It is remarkable that those cases were not considered by Vice-Chancellor Wigram in Lily v. Hey, 1 Hare, 580, and of course one must treat Vice-Chancellor Wigram's decision with the greatest respect. If the Attorney General v. Price, and the other cases I have mentioned, had been before Vice-Chancellor Wigram in Lily v. Hey, I should have followed the more recent decision. As it is, I am not entitled to dissent from authorities so much in point." See also for an application of the same holding Coote v. Whittington, 21 W. R., 837, and Rowsell v. Morris, 22 W. R., 67, where Sir George

Jessel, M. R., refused to follow Coote v. Wittington.

Malins, V. C., may not unfairly be classed as one of the erratic Judges above alluded to. He deals with the question we are considering in his own peculiar style, as reported in Ferrier v. Jay, 23 L. T. N. S., 302. "This point," he says, "has been before two learned Judges, whose decisions are in direct opposition to one another. On the bulk of the authorities, I am bound to follow the latter of the two decisions. Although all the authorities do not appear to have been cited in that case, I must assume that the Vice-Chancellor had them all in his mind when he made that decision."

Of the Irish Bench, Lord Justice Christian may be taken as one of the most illustrious types of the judicial Ishmaelite that the annals of the law can exhibit. His views upon this subject are given in Re Tottenham's Estate, Irish R. 3 Eq. 528: "When the decision of one Court is cited to another of co-ordinate authority, the latter has a right to regard it in a critical and even sceptical spirit; and while accepting the decision, to decline the reason of deciding, if a better one can be assigned. But I confess, I think that when an inferior Court (I mean inferior in the sense of curial procedure) has before it the decision of its non-appellate tribunal, it is the duty to conform itself frankly and loyally to the reason of the decision, and not merely to its letter."

The decision of a co-ordinate branch of the Court, or of a Court of co-ordinate jurisdiction, will be followed till reversed on appeal, in order to avoid an unseemly conflict of decisions: Per James, V. C. in Re Times Assurance Co., 18 W. R. 404, and see also Re Hotchkiss's Trusts, L. R. 8 Eq. 643. In Boon v. Howard, 22 W. R. 541, Keating, J., is reported to say, "There is no positive rule which precludes the Court from examining its previous decisions, though those are to be

departed from only on the strongest grounds. The Court ought to respect its own decisions and those of other Courts." In Owen v. London R. Company, 17 L. T. N. S. 210, Cockburn, C. J., held, that as the authorities were somewhat divided, the Courts were entitled to exercise their own independent judgment on the question to be decided. In such a conflict of authority, the earlier decision was followed by Romilly, M. R., in Hall v. Bushill, 12 Jur., N. S. 243. But in making a choice among conflicting decisions, the considerations which ought to influence the Court are well expressed by Mr. Justice Jebb in Loveland Coyne v. Bartley, Alc. & Nap. 308, "When the Court is obliged to decide upon conflicting decisions, and one of them is of late date, of unquestionable authority, and is adopted by compilers, and text and elementary writers of character, and is also in accordance with the opinions of the Bar, so far as we can collect it from a series of authorities and precedents, we should not be warranted in making a decision contrary to that opinion." (To be continued)

SELECTIONS.

TESTAMENTARY POWERS OF

SALE.

There is, perhaps, no class of instruments which come under the cognizance of the law, where the intention of the parties is to form an element of consideration, in which greater difficulty arises in ascertaining that intention and enforcing it in accordance with the rules of law, than in wills; and in no branch of the construction of wills have the courts been driven to a greater nicety than in the interpretation of powers and trusts, and the discrimination between these two. To add to the inherent difficulties of the subject, the department of trusts is of later origin, or rather development, than the general rules of real property, and the enunciation of these by the elder authorities of the common law; and these latter,

with the decisions founded on them, present quite as much conflict inter se as assistance towards forming a coherent or symmetrical system of the principles of this topic of the law.

In recurring, therefore, to the older authorities, great discrimination must be exercised in referring to cases, as support can readily be drawn from them for opposite sides of almost every question which arises in this department; and the true rule is rather to eliminate from than attempt to harmonize the various decisions and propositions of the text writers when determining what are powers and what trusts, and who are authorized to execute the former.

In Tainter v. Clark," which may be regarded as a leading case in this commonwealth, the court decided that an administrator de bonis non cum testamento an

nexo could not execute a power given by the will to the executor, to sell such of the testator's real estate as in his judgment was best to raise the money necessary to pay testator's debts and certain pecuniary legacies given by the will. The power in question was not coupled with an interest, but was united with a trust to dispose of the proceeds as executor, i. e., to pay debts and legacies, and was given in the same clause in which the executor

was appointed, and immediately following

the mention of his name. It was also left to his judgment what parcel to sell, but a sale was imperative. The court rely upon the authority of Coke,† that a power given to "executors" to sell may be executed even though one dies, "because the plural number remaine;" but otherwise, if it had been given to "I. S., I. N., &c., his executors,' "because the words of the testator would not be satisfied;" and also refer with approval to the distinctions laid down by Mr. Sugden:‡ (1) that a power to two or more nominatim will not survive without express words; (2) where it is given not nominatim, but to two or more generally, it will survive while the plural number remains; (3) where it is given to "executors"

merely, even a single executor may execute it; but (4) if to executors by name, it is at least doubtful if it will survive.

It will be perceived that these authorities were not expressly upon the point in issue in the principal case. They applied, however, to the general question of the transmission or survivorship of powers, and were considered decisive of the incapacity of the power in question to survive, because it was considered a bare discretionary power. But the court also place their decision on a second ground, derivative though distinct from the first, namely, that the administrator cannot succeed to powers as to realty reposed in the executor; relying upon the authority of Wills v. Cowper § and Conklin v. Egerton, and cf a case in the Year Books.

To take in their order the two grounds herein relied upon, and which broadly present the two leading questions arising in reference to testamentary powers, it is apparent that the first goes upon the principle that where a testator has confided a power it must be exercised by, and only by, the person or persons selected; and second, upon the collateral ground that an administrator, though clothed with the representative capacity, is not in the confidence of the testator, and cannot act as the testator's grantee, unless expressly named.

In regard to the first of these positions, to which the court in their judgment suggest no exception or modification directly,

we must refer to the rules cited from Lord Coke and Mr. Sugden, to see what qualifications the court are disposed to admit. Now it is evident that in neither of these are any further departures from the testator's literal directions approved of, except in two cases, one of which is suggested by both these authorities, the latter only by Mr. Sugden. The first is, that where the power is limited to be exercised by exeecutors generally, it may be executed while a plural number remains; and the second is Mr. Sugden's extension of this, to allow even one executor to sell where the power was merely given ratione officii, not nominatim.

It is, of course, to be borne in mind that the case above stated, as well as the rules just referred to, related only to what were viewed-whether correctly or not, we shall inquire further on-as mere powers. The distinction, which we main

tain was not properly kept in view in these authorities, was that between a bare power and a power coupled with a trust. A bare power is necessarily a discretionary one, and precisely to the extent to which it is a power merely, must be limited to the donee or donees, and cannot in any way be transferred or pass to any other person. It may be either a legal or an equitable power. But the distinction between these two classes is foreign to the point under consideration; for an equitable power may be one that equity will interfere to compel the exercise of, and so take it from the domain of the donee's discretion, and replace that by the discretion of the court of equity. But equity will do this only on the ground that, and to the extent to which, there is an interest vested in some person in the execution of the power, and which equity is bound to enforce; in other words, that the power is coupled with a trust.

This is the first distinction which is to be maintained in order to a correct view of the position of the authorities on this subject; and it will be seen, therefore, that our whole inquiry to ascertain the survivorship or not of any power resolves itself into the question whether the power is wholly discretional throughout, or whether any part of it is compulsory, because a third person has an interest in its exercise, not dependent for its existence on the discretion of the donee of the power.

A second distinction, quite diverse in its nature from the one just commented on, is between bare powers and powers coupled with an interest. The latter phrase is often broadly employed to include every case where an interest is to vest by the exercise of the power. It is conceived that this is incorrect, and that the true meaning is, that an interest vests in the donees of the power, which is to be enlarged by the exercise of the power, or out of which the power is to take effect, as in case of a power of sale attached to a mortgage.*

The cases which turn on this latter distinction rest on a very different principle from those of the first class. The limitation of an interest, whether legal or equitable in its nature with a power appended, enables the grantee to deal with the power as he does with the estate;

* Hind v. Poole, 1 K. & J. 383.

and if the latter is capable of being as signed, the power will also pass to the assignees, even without words of limitation to them in the original grant of the power. If such words are inserted, then the power can be exercised without the intervention of a court of equity; and if not, then at least with such intervention.

It is, however, evident, from an examination of the early cases, especially those of or anterior to the time of Lord Coke, that the full conception of the distinction first stated did not then exist in any proper sense, and that the only distinction established or even recognized was the second one, i. e., between bare powers and powers coupled with an interest. With the then partially developed jurisdiction of the court of equity, the existence of a duty in the nature of a trust underlying a power was not recognized as a ground for equitable interference.† The settled distinction was, that if an estate was devised to several executors or trustees in trust to sell, here the power would survive as coupled with an interest; but if devised in trust that the executors, &c., should sell, then it would not survive. Thus in Atwaters v. Birt, on a feoffment to four to uses, there was a proviso that the uses should cease on (inter alia) the assent of the feoffees. One of the feoffees dying, the donor, with the assent of the other three feoffees, revoked the uses; but it was held void, Popham, C. J., saying that "before the statute of 21 Hen. 8, c. 4, the common law was, that if one devised his land to four to sell, and one of them dies, the survivors, because they have an interest, may sell; but if he had devised that three should sell the land, and one of them dies, the survivors, because they have but a mere authority, cannot sell." As authority, an anonymous case, some forty years earlier, § is referred to. Here, after a devise by a cestui que use that A, B and C, the feoffees to uses, should sell to pay legacies, &c., A, one of the feoffees, died. It was questioned whether B and C could sell; "and it seemed not, and so it was ruled; but quære, if they had not been named A, B, and C, but feoffees only." So in the case of Butler v. May,|| on a devise to

+ Lewin, Trusts, 430 et seq.

Cro. Eliz. 856.

§ 4 Dyer, 177.

|| Dyer, 189, 190.

the use of such wife as the testator's son should marry, upon the nomination of four persons named, and one of these four subsequently died, it was held that the uses failed, because the power of nomination could not be executed by the survivors. Dyer and Browne, J. J., dissented, because they thought that the donees had by the grant an interest in the marriage as a feudal incident.

Where a power was not coupled with an interest, it seems, therefore, at this time merely regarded as a bare power or authority; and the only two cases in which others than the first donees of the power could exercise it were where, by the general terms in which they were described, it might be considered as not restricted to the individuals named, but to pass to two, or even a singie survivor; or secondly, where there was no one named as donee of the power, that even a single survivor might execute it.

Thus, under this latter execption, in a case in 2 Leon. 220, where a mrn devised land to his wife for her life, and directed that after her death the lands should be sold, and the proceeds paid out to his next of kin, and made two executors, who both proved the will, after which one died; it was held that no one being named to execute the power, it went to the executors virtute officii, and the survivor might sell; and similar decisions were made in many other cases.

Yet though this rule obtained where no one was named to take the power, it was adjudged from even an earlier period that where the testator directed his lands to be sold by his executors, if one or more resigned, the accepting or qualifying executors alone could not sell, because the executors were in the nature of grantees, and must all act notwithstanding their resignation, as "a will of lands is not a testamentary matter;"* and in like manner the power of a survivor to sell seemed to be limited to the case where the co-executor had deceased prior to the vesting of the power.† The case of Bonifant v. Greenfield, cited by the court in a recent case in this State,§ to show that a power could be executed by the continuing executors, was not the

15 Hen. 7, 11.

+ Co. Litt. 113 a.

14 Cro. Car. 80.

§ Gould v. Mather, 104 Mass. 283, 290.

case of a bare power, but was a devise to executors to sell, which, as we have before intimated, was regarded as giving a power coupled with an interest which, as a joint estate, could well survive.

vor.

To enable the continuing executors to exercise such a bare power, the statute of 21 Hen. 8, c. 4, was passed, which authorized even a single qualifying executor to sell, but made no mention of the case of survivorship upon decease. The law upon this point seems to have been at that time that where the donees of a power not coupled with an interest were mentioned nominatim, the power could not survive; where, on the contrary, they were referred to generally, it would, at least while a plural number continued, and in some cases even to a single surviThus, in the anonymous case above referred to, reported by Dyer,* it seemed that if the donees were described as "feofees," their survivor could well sell. So in Lee v. Vincent,t on a devise that testator's "sons-in-law" should sell, a sale by the survivors after one had deceased was held good: "it was adjudged a good sale, because he named them not by their proper names." So Perkinst lays down the law that one executor may sell where the will is that the executors shall sell and one refuses to intermeddle; and in the later case of Houell v. Barnes,§ one executor, the survivor of two, was allowed to execute a power of sale. The case of Danne v. Annas || is sometimes referred to as an authority to the contrary ¶; but this is an error, and it will be found on examination to turn on quite a different ground. The case was a devise that executors, of whom there were two, should sell with the assent of A. B. A. B. and one executor died, and a sale was then made, and held not good. But no reason is given by the court; and it was the well-settled rule that such assent as was here required was a prerequisite or condition precedent to the exercise of the power, and even the decease of one of those named to give such assent would defeat the power. **