in pursuance, exercise *and execution of the power or autho rity, powers or authorities, given, limited or reserved to me in and by the two several deeds of appointment hereinbefore mentioned, or either of them, or in or by the several indentures. therein respectively recited"; and proceeds thus, "and by force and virtue thereof, and of all and every other power and powers, authority and authorities whatsoever to me belonging, in me vested, or me thereunto in anywise enabling"; nor do I see why, ut res pereat, these words should be departed from. The appointments of 1826 and 1820, and the deeds of 1813, were (it needs not be said) equitably invalid, because the deeds of 1813 were made under an arrangement, under a bargain, between the appointee Richard Carver and his father and mother, that Richard Carver should make the settlement of 1813, which gave or professed to give to his father a certain degree of control over the property, and a beneficial interest in it; and therefore, of course, previously to the year 1829, the power conferred on Mrs. Carver in 1807, had not been to any extent whatever effectually exercised.

Then, as to the appellant's second proposition, I consider that to be altogether immaterial, inasmuch as by the terms, the express language, of the appointments of 1820 and 1826, there was given to Mrs. Sarah Carver a full and complete power, exercisable by deed or will after her husband's death, if she should survive him, of revoking those two instruments respectively. She was expressly and plainly enabled accordingly to deliver herself and the property from each of them after his decease. It is true that, consistently with the instruments. executed between 1807 and 1829, she could not after the year 1813, make an appointment in favour of a child of a marriage between herself and any other person than Daniel Carver, but subject, and only subject to that qualification, she, after his death, had merely to revoke *the appointments of 1820 and 1826, in order to obtain the same power of appointment under the deeds of 1813, according to their tenor, as she had under the settlement of 1807. It must also be mentioned that the annuity professed to be conferred on him by the settlement of 1813, was to commence not before her death, and not at all if she should, as she did, survive him; and that every interest professed to be conferred by the deeds of 1813 and 1820, and the appointment of 1826 respectively, which before the year 1829 had not wholly ceased, was an interest that in nature, in extent, and as to the person or persons on whom it was professed or meant to be conferred, or for whom it was expressed or intended to be provided, was not in conflict,

CARVER

r.

RICHARDS.

[ *562]

[ *563 ]

CARVER

v.

RICHARDS.

[ *564 ]

but was consistent and in conformity with the settlement of 1807.

As to the appellant's third proposition, I think it destitute of foundation; and with regard to the fourth and fifth, I consider each of them also to be inaccurate and to fail. I am of opinion that it was competent to Mrs. Carver, without damaging the appointment of 1829, to refer in it to the appointments of 1820 and 1826, or either of them, for the purpose of describing and pointing out through that reference any such of the limitations and provisions contained in those instruments, or either of them, as in 1829, she wished to stand and have effect, so far, at least, as those limitations and provisions were authorized by the settlement of 1807 (considered as not affected by any instrument intermediate between 1807 and 1829). Now it is plain and clear, as I understand the matter, that every interest which the appointment of 1829 created, or professed or purported to confer (whether by confirmation, or reference or otherwise), was an interest which the settlement of 1807 authorized Mrs. Carver to create or confer; for if the appointment of 1829 literally taken may be said to confirm *Daniel Carver's annuity, and the joint power or joint powers professed to be conferred on him and herself, that is, I think, merely nothing, inasmuch as Daniel Carver was then dead, and his annuity, therefore, which had never come into possession, could never arise. Consequently I am of opinion that the appointment of 1829 does not transgress or exceed the power given to her by the settlement of 1807, and there is, in my judgment, no ground for supposing that in making the dispositions contained (whether by way of confirmation, or reference or otherwise) in the deed. of 1829, Mrs. Carver was not in every sense a free agent, or had any unfair or improper motive, or was actuated by any unfair or improper reason, or that she would not have made dispositions the same in substance and effect if all or any one or more of the instruments dated between 1807 and 1829 had never existed. She must be taken to have known in and throughout the years 1828 and 1829 that her husband having died, she was, at least from the time of his death, certainly and clearly authorized, entitled and able substantially and in effect to exercise the power conferred on her by the settlement of 1807, as fully and freely as if none of the instruments of 1813 and 1820, nor the appointment of 1826, had ever existedsubject only to this, that, by those instruments, if valid, she was prevented from making any appointment in favour of any child of a marriage between herself and any other husband than Daniel Carver. But she appears never to have had any

other husband than Daniel Carver, and, as I collect, her age at the time of his death, rendered it, if not impossible, at least highly improbable, that, in the event of her marrying afterwards, she should have a child: nor perhaps is it immaterial. to remember the power of revocation which the deed of 1829 gave or reserved to her, or the fact that there were at least seven children of Mrs. Carver living *in 1820, and probably in and throughout 1829 also. My conclusion as to this particular controversy is that of the MASTER OF THE ROLLS, although it relates. to a point of title between vendor and purchaser.

THE LORD JUSTICE TURNER:

I agree in the conclusion at which my learned brother and the MASTER OF THE ROLLS have arrived in this case. It cannot I think be doubted, that the deed of 1829 operated as an exercise. of the powers reserved by the deeds of appointment which were made in exercise of the power created by the deed of 1813, or that the power created by the last-mentioned deed was not well created, but it can, I think, be as little doubted that the deed. of 1829 operated also as an exercise of the power created by the deed of 1807, for the deed of 1829 professes to be made in exercise of every power enabling Mrs. Carver to make the appointment which is made by it; and so far from there being anything on the face of the deed to restrain the operation of the general words referring to all powers enabling Mrs. Carver to make the appointment, the deed expressly refers to the powers contained in the deeds recited in the deeds of 1820 and 1826, the former of which deeds recites the deed of 1807. It is impossible, therefore, as it seems to me, to treat the deed of 1829 otherwise than as made in exercise of the power created by the deed of 1807, as well as of the powers created by the deeds of 1820 and 1826. The case, therefore, as I view it, resolves itself into this point whether the appointment made under the power well created by the deed of 1807, ought to be held bad, because it is mixed up with an appointment made under the powers badly created under the deed of 1813, and I am of opinion that it ought not. It is not necessary to say, nor do I mean to say, that an appointment made under a power well created may not, in some cases, be held bad, if made *also under a power which is badly created. What is vitious may so far predominate over what is good, or the vitious and the good may be so mixed together, that the Court cannot give effect to the one and reject the other; but I think it is the duty of the Court to reject what is vitious and to maintain what is good, if it can properly be done. The Court, as I apprehend, is bound in such cases to

CARVER

v.

RICHARDS.

[ *565]

[ *566 ]

look to the intention of the party executing the power, and to give effect to that intention, if it is not influenced by improper motives. In this case, so far as the appointment of 1829 rests upon the power created under the deed of 1813, it is vitious, not by reason of any improper motive influencing the appointment, but by reason only of the power to make the appointment having been badly created. The motive for acting upon the invalid powers created under the appointment of 1813, rather than upon the valid power created under the deed of 1807, was at an end. The argument that Mrs. Carver may have been influenced by what had been done under the invalid powers is merely speculative. Her intention was to distribute the property in the manner pointed out by the deed of 1829, and I think what is vitious in her mode of carrying out that intention is so far separable from what is good, that her intention must prevail. I am of opinion, therefore, that this appeal must be dismissed.

1859. Nov. 10, 11.

HAINES v. BURNETT.

(27 Beav. 500–501; S. C. 29 L. J. Ch. 289; 5 Jur. N. S. 1279; 1 L. T. N. S. 18; 8 W. R. 130.)

Under an executory agreement to grant a lease of an hotel, with general and usual covenants, it was held, under the circumstances, that the lease ought to contain a power of re-entry on the lessee's becoming bankrupt or taking the benefit of the Insolvent Act.

[In the lease of a public-house a power of re-entry should be limited to non-payment of rent: In re Lander and Bayley's Contract [1892] 3 Ch. 41, following Hodgkinson v. Crowe (1875) L. R. 10 Ch. 622, 44 L. J. Ch. 680, 33 L. T. 388, which was a mining lease. Assuming that these cases apply to the agreement for a lease of an hotel it seems that Haines v. Burnett must be regarded as overruled as stated by JESSEL, M. R., in Hampshire v. Wickens (1878) 7 Ch. D. p. 560, 47 L. J. Ch. 243, 38 L. T. 408.-0. A. S.]

1859.

CROSSMAN v. BEVAN.

Nov. 16, 17. (27 Beav. 502-507; S. C. 29 L. J. Ch. 77; 5 Jur. N. S. 1145; 1 L. T. N. S.

Rolls Court.

ROMILLY,

M.R.

[ 502 ]

120; 8 W. R. 84.)

A testator gave a legacy to his daughter Lucy, and gave to her and her husband a similar power and control over it as was given by the settlement of her sister. And he directed, that if Lucy should die without issue, her legacy should revert to his surviving children. The settlement of the other daughter gave to her and her husband a joint power, and in default of appointment to the surviving husband, a separate power to appoint to their children, and in default of children, a separate power to the daughter to appoint the fund to any one by will: Held, that as there was an inconsistency, the will must be read strictly, and that Lucy had no power of testamentary appointment, but only a joint power with her husband to appoint to children. MR. CROSSMAN had two daughters, Elizabeth and Lucy, and two sons, Francis and George. In 1803, Elizabeth married Mr.

Doveton, and by her marriage settlement dated in July, 1803, Mr. Crossman settled a sum of 3,000l. in trust for Mr. Doveton for life, with remainder to Elizabeth for life, with remainder upon trust for all or any of the children of the marriage as Mr. and Mrs. Doveton, during their joint lives, should appoint, and in default, then upon trust, after the decease of Mrs. Doveton, for such of their children as Mr. Doveton should appoint, and in default, in trust for the children of the marriage equally. And in case there should be no children or child of the marriage, then upon trust for such person as Mrs. Doveton, by her will, should give or bequeath the same, and in default of such gift or bequest, in trust for her next of kin.

In August, 1803, Mr. Crossman made a codicil to his will, whereby he bequeathed to his daughter Elizabeth Doveton 500l. sterling, and a sum of 2,8331. 6s. 8d. 31. per Cents. And he bequeathed to his daughter Lucy 5,8331. 6s. 8d. 31. per cents. Reduced, and 500l. cash.

He then proceeded in the following terms:

"Should my daughter Elizabeth Doveton have any issue in consequence of her marriage with Mr. Doveton, I do hereby empower him to give and bequeath by his *will to such issue the several sums above mentioned, in such proportions as he shall deem proper. And I do further direct, that if my daughter Elizabeth Doveton should have no children, in consequence of her marriage with Mr. Doveton, then the several sums above specified, namely 500l. sterling, and 2,8331. 6s. 8d. stock in 31. per cent. Reduced funds shall revert, after the decease of Mr. Doveton and my daughter Elizabeth, to my surviving children, or in case of their decease, to their nearest relations.

"And should my daughter Lucy hereafter marry, I do hereby give to her and to the person who may be her husband a similar power and control over her marriage portion as is given by the marriage articles to Mr. Doveton and my daughter Elizabeth. And I do also direct, that if my daughter Lucy should marry and die without any lawful issue, the several sums given to her, after my decease, shall, after her demise and that of her husband, revert to my surviving children, or in case of their death, to their nearest relatives."

The testator died in 1803.

In 1808, Lucy Crossman married Mr. Ducarel, and on the occasion, the 5,8331. 6s. 8d. stock was settled in trust for Mr. Ducarel for life, with remainder to Lucy Ducarel for life, with remainder on trusts for their children and issue.

And if there should be no children or child of the said intended marriage or issue of such, or if all should die before

CROSSMAN

2.

BEVAN.

[503]