[THE VICE-CHANCELLOR. If the donor had said "writing testamentary or otherwise " it [389] would have come within the Act.] The law has said it for him. The object of the statute was merely to produce uniformity in the manner of executing wills.

THE VICE-CHANCELLOR. I must take time to consider this case. The question was decided by Vice-Chancellor Wigram, and that decision has not been appealed from, and must not be departed from lightly.

March 8. THE VICE-CHANCELLOR Šir W. PAGE WOOD. In this case the Court is called upon to consider the decision of Vice-Chancellor Wigram in Buckell v. Blenkhorn (5 Hare, 131), under circumstances precisely analogous, in consequence of the question having been brought before the Master of the Rolls, and ther before the Lords Justices, in the case of Collard v. Sampson (17 Jur. 641). That was a suit concerning this same will for the purpose of enforcing specifically a contract which depended on a title resting for its validity upon that decision in Buckell v. Blenkhorn (5 Hare, 131), and the case is now open for decision in consequence of the Lords Justices having expressed their opinion that they could not consider the point to have been so satisfactorily determined as to induce them to enforce specific performance of the contract. I must therefore look at the question, not guided by the decision of Vice-Chancellor Wigram, further than as giving the weight of his opinion to one conclusion on this somewhat difficult subject.

The question arises thus: the settlor here reserved a power of appointing "during the term of his natural life, by any deed or deeds, writing or writings, under his hand and seal, to be attested by two or more credible witnesses;" and then he made an appointment by will not under seal, but executed and attested as required by the [390] Statute of Wills, 1 Vict. c. 26. Vice-Chancellor Wigram, in Buckell v. Blenkhorn (5 Hare, 131), held that, inasmuch as the previous decisions had established that, where there was a power, worded like this, of appointing "by writing," coupled with certain solemnities, a testamentary writing executed with those solemnities would be a good execution of the power, the donor being indifferent, so long as the conditions were complied with, whether the instrument were a writing or a will; therefore the case would fall within that section of the new statute which directs that every will executed and attested in the manner required by the Act should, "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." Vice-Chancellor Wigram commented upon the case before him in this manner: "Before the Wills Act, the word writing,' in cases like the present, had received a judicial interpretation, which included a will. But the Court held that they could not dispense with the formalities prescribed by the instrument creating the power-although they were not necessary to the validity of a will-because those forms, being in themselves without value, could have no equivalent. Now, by the Statute of Wills (1 Vict. c. 26) it is provided that, in the execution of wills, one given form shall be observed, and that such form shall be an equivalent for every arbitrary form of execution which the donor of a power may prescribe. It was not at the expense but in favour and for the benefit of such donors, and in order that their intentions might not be disappointed by the neglect of useless forms, that this legislative provision was made. I must presume in this case that Sarah M'Lauchlan made the deed of the 1st of September [391] 1843 with the knowledge of the decisions upon the word 'writing,' and with knowledge also of the provisions of the Wills Act."

Now the Lord Justice Turner, after citing those observations of Vice-Chancellor Wigram in Collard v. Sampson (17 Jur. 641), considered that they were not such satisfactory reasons as to induce the Court to hold that an appointment made, as in this case, by a will not executed in compliance with the provisions of the power, but duly executed and attested under the Wills Act, would, by virtue of that statute, be a good execution of the power. I am bound to say, upon consideration, that I feel the justice of that remark, and that I cannot hold that this power has been duly executed; but, at the same time, I must add that, I fear, in nine cases out of ten, the intention, both of the donor and of the party executing the power, who of course intends to execute it effectually, will be defeated by such a decision. But the

Legislature might have provided for the case, and has not done so. I must consider the origin of those decisions of the Courts of law with reference to the solemnities required, in which it was held that every formality must be complied with. The Courts of law held this upon two grounds-first, because the donor of the power has declared how it must be exercised, and cujus est dare ejus est disponere; and, secondly, the Courts of law regarded appointments under powers as in the nature of conditional limitations to defeat existing uses, and considered that, therefore, they were to be strictly executed. However, as it often happened that some of the formalities were forgotten, and the intention would thus have been frustrated, the Courts of Equity, in certain favoured cases, have supplied the want of the required formalities. There still remain many instances in which the objection prevails; but in the case of wills the Legis-[392]-lature has interfered, and, instead of the many useless ceremonies that may be required for the execution of a power by will, has provided one form of execution and attestation, and, if that be complied with, all others are disregarded. The Legislature might have gone on to say, if the subject of deeds had been before them, that whatever instrument would be good as a deed, and was formally executed as a deed, should be a due execution of a power to be executed by deed, whatever other ceremonies might be required by the power; however, they have not done so. Now I find in this settlement a power not to appoint by will at all, but by deed or writing, with certain required solemnities. The decisions on this point before the statute were in effect that the donor of the power had thought the character of the writing, whether it should be testamentary or inter vivos, not of the essence of the case. All he had thought essential were the solemnities with which the power was to be exercised, and, provided they were observed, it was indifferent whether the instrument by which the power was exercised were a will or a deed; and when it was exercised by will, as in the case of Lisle v. Lisle (1 Bro. C. C. 533), though the instrument is a will and revocable, yet, being executed with all the required ceremonies, and being within the words of the power, it was held to be a good execution of the power. But when the donor has made the required solemnities essential to the power, and has not stated that it is to be exercised by will, but only by deed or writing, can I hold that it falls within the 10th section of the statute 1 Vict. c. 26, which provides that every will, executed in manner therein before 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?

[393] The donor might well say, "I have not made any direction at all as to a will, and therefore my case is not within the statute. It may be that it was a matter of indifference to me whether the exercise of the power should be by will or not; but it was of the essence of my direction that it should be done with certain solemnities. Where the instrument is a matter of form and the required solemnities are the substantial requisites, is not the same case as where the instrument is the substance of what is required by the power and the solemnities are the accessories, which is the state of circumstances to which the statute applies."

I regret to come to this conclusion, because, when persons fetter themselves with these forms, instead of saying simply that the appointment should be by deed or will, which would in most cases fulfil every purpose, they often disappoint themselves; or when they wish to give a power of appointment to third persons they frequently by these means disappoint the object of all parties. The Legislature has made a provision for the evil in cases of wills; but I think that it does not extend to the case where the power requires not a will but an instrument with certain formalities different to those observed in the execution of a will. The distinction is no doubt narrow; for if the power had been to be executed by a "writing testamentary or otherwise," then the case would have fallen within the statute; but in that case the donor would have made a will of the substance of the case, and then the provisions of the statute would apply. Not having used those words, I think that he has not brought the limitation of the power in the settlement within the operation of the statute; and I must therefore answer the question whether these premises passed by the will, which has been very well argued in the negative.

[394] HILL v. PRITCHARD. Feb. 25, 1854.

[S. C. 2 Eq. R. 374; 2 W. R. 297.]

Disentailing Deed. Assent of Protector. Power of Sale not barred.

A settlement, by which real estates were limited to the use of A. for life, with remainder to her son in tail, contained a power of sale and exchange, to be exercised during the life of the tenant for life, with her consent, signified by writing under her hand and seal.

By a disentailing deed, to which the tenant for life was a party, the tenant in tail, with the consent of his mother, the tenant for life, testified by her executing that deed, conveyed the settled estates, subject to her life-estate therein, and also other hereditaments, of which he was tenant in tail in possession, to uses to bar dower in his own favour.

This deed contained no recital of any contract, but, in the operative part, its object was stated to be in order to defeat the estate or estates tail of the tenant in tail in the hereditaments therein comprised, and all other estates, powers, rights and interests limited to take effect after the determination or in defeasance of such estate or estates tail, and to limit the fee-simple in such hereditaments, as to such parts thereof as were vested in the tenant for life, subject to her life-estate therein, to the uses thereinafter expressed. Held, that the concurrence of the tenant for life in the disentailing deed did not bar her power of assenting to a subsequent exercise of the power of sale and exchange, because this was a power to raise a use paramount to the estate tail, and there was nothing in the frame of the deed from which a contract could be implied that the tenant for life would not consent afterwards to the exercise of the power of sale and exchange.

By a settlement, dated the 15th of April 1817, made previously to and in consideration of the marriage which was shortly afterwards solemnised between William Massey, since deceased, and Mary Massey, now his widow, certain hereditaments in Wales were limited, subject to the trusts of a term of 5000 years, vested in trustees to raise portions for the younger children of the marriage, to uses of which the existing uses were, in the first place, for the said Mary Massey for life, with remainder to trustees to preserve contingent remainders, with remainder to the use of the first and other sons of the marriage successively, and the heirs of their respective bodies, with divers remainders over; and the settlement contained a power of sale and exchange, which was given to trustees to be exercised from time to time during the life of Mrs. Massey, and with her consent, to be signified by any writing under her hand and seal.

The marriage was duly solemnised, and there was issue thereof. The eldest son of the marriage was named Francis Elcocke Massey, and he attained twenty-one in 1843.

William Massey, the husband, died in 1837, leaving his wife and eldest son surviving.

[395] By an indenture, made the 8th of April 1846, between the said Mary Massey of the first part, the said Francis Elcocke Massey of the second part, and Robert Bover Hinchliffe of the third part, after reciting the said settlement and certain other instruments, under which the said Francis Elcocke Massey was tenant in tail in possession of certain other hereditaments, and reciting that the said Francis Elcocke Massey had attained the age of twenty-one, it was witnessed "that, in order to defeat the estate or estates tail of the said Francis Elcocke Massey, by virtue of the said indenture of settlement and other assurances herein before recited, or any of them, in the hereditaments hereinafter released or intended so to be, and all other estates, powers, rights and interests limited to take effect after the determination, or in defeasance of such estate or estates tail, and to limit the fee-simple in such hereditaments (as to such parts thereof as are vested in the said Mary Massey for her life, subject to her life-estate therein), to the uses and in manner hereinafter expressed-he the said

Francis Elcocke Massey, with the consent of the said Mary Massey, as to such of the hereditaments hereinafter described or referred to, of which she is protector of the settlement creating the estate tail, testified by her executing these presents,' granted and released the said hereditaments, together with other hereditaments of which the said Francis Elcocke Massey was tenant in tail in possession, to the said Robert Bover Hinchliffe and his heirs, to have and to hold the same unto the said Robert Bover Hinchliffe, his heirs and assigns, for ever, to uses to bar dower in favour of the said Francis Elcocke Massey.

Mary Massey and the trustees in whom the power of sale was vested contracted with John Pritchard for the sale to him of part of the estates comprised in the said power. John Pritchard raised the objection that, having regard to the terms of the disentailing deed, Mary Massey [396] could not consent to the exercise of the power of sale; and the trustees and Mary Massey as Plaintiffs, and John Pritchard as Defendant, now presented these facts to the Court in the form of a special case, in which the question was whether a valid sale and appointment could be made under the power.

Mr. W. M. James, Q.C., and Mr. Wickens, for the Plaintiffs. The right of the tenant for life to consent to the exercise of the power of sale is not affected by this disentailing deed: Roper v. Hallifax (8 Taunt. 845; Sudg. Pow. App. No. 3).

Mr. Rolt, Q.C., and Mr. W. D. Lewis, for the Defendant. The power of the tenant for life, as protector of the settlement, to assent to the disentailing deed is expressly opposed to and in derogation of the power of sale and exchange, which is a power to raise a shifting use to defeat the estate tail. If the shifting use were limited to take effect upon a collateral event, such as the payment by A. of £100, it would be barred by any assurance that barred the estate tail. But the power of sale is, for this purpose, the same as a use expressly limited. If the event provided for happen, or the power be exercised, before such an assurance, the estate tail will be defeated. If the disentailing deed be first executed the use or power must necessarily be defeated.

Then this disentailing deed contains no reservation of the powers of the tenant for life, for the object of the deed is expressed to be in order to defeat all powers to take effect in defeasance of the estate tail, and to limit the fee-simple in these hereditaments in manner thereinafter mentioned. Those words are directly applicable to the power of sale, which is only to be exercised with the consent of [397] the tenant for life, and which, therefore, it must have been intended to destroy during her life, for the power of consenting possessed by her being appendant to her lifeestate might be released. [THE VICE-CHANCELLOR. It would scarcely be a subject of release, but she might have bound herself by a contract not to consent.] Having joined in this deed she cannot now defeat it: Evans v. Jones (supra, p. 29). [THE VICE-CHANCELLOR. That was a contract between two parties to the deed, here the tenant for life merely consents to enable the tenant in tail to bar his estate tail.] They cited also the following extract from Burton's Compendium, p. 308, 5th edition. Supposing a settlement on A. for life, with remainder to B. in tail, "it seems clear that the power" of revocation by C. and his heirs "might be made co-extensive with that estate, because a recovery suffered by the tenant in tail when in possession would at any time effectually defeat it. Indeed, it is very usual to give a power to the trustees and their representatives, with the consent of the tenant for life or tenant in tail in possession for the time being," to sell or exchange. "While the estate of the tenant for life continues, the power, it is true, is secured. The tenant in tail in remainder cannot suffer a recovery without the concurrence of the tenant for life, and even this concurrence will not necessarily destroy the power. For his old estate for life may still continue, and whilst that lasts any shifting use arising by an exercise of the power given to the trustees must be antecedent to the estate tail, and paramount to it in title; and therefore the power will still continue exercisable, notwithstanding any act of the tenant in tail."

The reply was not called for.

[398] THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think that this power of sale can be well exercised. The ingenious argument which Lord St. Leonards used in Roper v. Hallifax (8 Taunt. 845) has been repeated in this case: that the power of

sale was to raise a shifting use which could not be said to be paramount to the estate tail, and, therefore, when the estate tail was barred, every interest connected with or depending upon or subsequent to it was destroyed also.

But in this case the same difficulty does not occur as in many other cases, where a shifting use is to be introduced in exercise of a power; because here it must take effect paramount to the estate tail, the exercise of the power of sale and exchange being confined to the lifetime of the tenant for life; and, therefore, no act of the tenant in tail could bar this power: there must be a contract on the part of the tenant for life not to give that consent, with which alone the power could be exercised. Then, as it is said in the passage cited from Burton, it is true that all the powers to be exercised during the estate tail, with the concurrence of the parties entitled to it, but displacing it to the extent of any interest created under the power, are barred by the effect of a recovery, and that is probably the meaning here of the words in this deed, in order to defeat all powers in defeazance of the estates tail. These words may also refer to the other estates of which he was tenant in tail in possession, and may be intended to defeat all powers which could affect them, and that too would be a sensible construction of the words. But I cannot import into this deed a contract on the part of the tenant for life that she never would consent to the exercise of the power of sale, unless I am driven to it, in order to give effect to all the words employed; and [399] I think that this deed is not so framed as to compel me to come to that conclusion. The deed is framed so as to reserve the lifeestate, and prima facie that would imply that all the incidents of the life-estate were also to be preserved; and, therefore, something very express would be necessary to deprive the tenant for life of her right to consent to the exercise of the power of sale. The only words which can create any doubt are those in which the disentailing deed is expressed to be made, to the intent that all "estates, powers, rights and interests limited to take effect after the determination or in defeazance of the estates tail, should be put an end to, and to limit the fee-simple in such hereditaments."

I have already shewn that several explanations of those words may be given; and it may be further observed that this is not a recital of a contract between these parties, but was merely an expression of the intention of the tenant in tail alone to do all that he could do, with the consent of the protector of the settlement, through the medium of his own act, to bar the estate tail and the powers incident to it. There is no contract on the part of the tenant for life that she will waive her power of consenting to the exercise of previous powers, which she could exercise during her life, her life-estate being expressly reserved.

There must, therefore, be a declaration answering this question in the affirmative.

[400]

[S. C. 23 L. J. Ch. 732. Everett, 1877, 6 Ch. D. Ch. D. 602; 30 Ch. D.

1 Vict. c. 26, s. 24.

DOUGLAS v. DOUGLAS. Feb. 21, 1854.

See Goodlad v. Burnett, 1855, 1 K. & J. 345; Everett v. 126; 7 Ch. D. 428; In re Portal and Lamb, 1884-85, 27 50; Cave v. Harris, 1887, 57 L. J. Ch. 64.]

Will speaking from Testator's Death. Specific Legacy.
Contrary Intention.

The 24th section of the 1 Vict. c. 26, which provides that a will shall speak and take effect as if executed immediately before the death of the testator, unless a contrary intention appear by the will, will probably give an extended effect to what would have been a specific bequest of a class of personal property before the statute. For instance, a bequest, since the Act, of "all my stock" would probably pass all the stock of the testator at the time of his death; but a gift of "all my stock which I have purchased" must be confined to stock actually purchased at the date of the will.

A will made since the statute contained the words, "I hereby exonerate my sister from all claims in respect of money laid out by me in improvements of the estates in Scotland, and which money has according to the laws of Scotland been charged V.-C. XIV.-6*