Power need not be referred to. alone will be considered.1 As to general powers, the rule is simply that the exercise of the power must not create a limitation which, at the time of such exercise, is obnoxious to the rule against perpetuities. In this case the validity of the limitation is totally irrespective of the instrument creating the power. For the freedom of alienation is no more interfered with by the gift of a general power than if an absolute interest had been vested in the donee, and, consequently, there is no tendency towards a perpetuity.2 The donee of a power may execute it without referring to it, provided the intention to execute appear by his mentioning the property over which he has the power. Thus, it was held, in an early case, that if a man, having a general power to appoint land by will, devise the land itself, as owner of it, without reference to his authority, the land will pass by the will; for his intention is clear.5 But it is otherwise if the donee of a power refer neither to it, nor to the property to which it is subject; and, as a general rule, it will be held, in such a case, that he did not intend to exercise his power. But an exception has been made in favor of a will made by a testator who has a general power of appointment over property. For it is enacted by the Wills Act that a general devise of the real estate of a testator, or of his real estate in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, or a bequest of the personal estate of a testator, or any bequest of per 8 1 Griffith v Pownall, 13 Sim. 393; Attenborough v. Attenborough, 1 K. & J. 296. 2 Tu. R. P. 419. 4 Clere's Case, 6 Rep. 17 b. 3 Sug. Pow. 289. 5 And see Hunloke v. Gell, 1 Russ. & My. 515. 6 Ex parte Caswall, 1 Atk. 559; Sloane v. Cadogan, Sug. Pow. 915. 77 Wm. IV. & 1 Vict. c. 26. 8 S. 27. sonal property described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), or any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper; and shall operate as an execution of such power, unless a contrary intention shall appear by the will. of formalities. It is also necessary that the donee of a power Observance should observe any conditions attached to its execution, as, for instance, that the consent of some particular person is to be first obtained. It was also necessary, formerly, scrupulously to observe, in the execution of a power, every formality which the caution or whim of the donor of the power had prescribed. But as to this it is now enacted by the Wills Act1 that no appointment made by will in exercise of any power shall be valid, unless the same shall be executed like a will; and that every will so executed shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding that 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. And as to the execution of powers by other instruments, it is enacted by the 22 & 23 Vict. c. 35,1 that a deed thereafter executed in the presence of, and attested by, two or more witnesses, in the manner in which deeds 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 Defective execution of 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 or solemnity. And on other points, besides those mentioned above, powers aided. the Court of Chancery has been in the habit, in cerBy Equity. tain cases, of aiding the defective execution of a power, where it has been intended to execute it, and that intention has been sufficiently declared, but the act declaring the intention was not an execution of the power in the form prescribed. Where, for instance,1 a man, having power to make a provision for his wife out of certain land by deed, devised part of the land to her for life by a will made under seal, this was upheld in equity as a good execution of his power, although it was not strictly within the terms. prescribed.2 Aid of this nature will be given to a wife or to children, although there has been no consideration given for the exercise of the power, and the rule is the same as to charities.3 But it will not be extended in other cases, to "volunteers persons, that is, who have taken under a voluntary gift. The court will, however, aid the defective execution of a power in favor of other persons, provided that they have given consideration, such as purchasers 4 (including in this term mortgagees 5 and lessees,) and Equity will creditors; but it cannot aid the non-execution of a not aid the non-execution power, since this would be to go against the nature of a power, the exercise of which is left to the free of a power. 1 Tollet v. Tollet, 2 P. Wms. 489, and, with notes, 1 L. C. 227. 2 And see Bruce v. Bruce, L. R. 11 Eq. 371. 8 Innes v. Sayer, 3 M. & G. 606. 4 Affleck v. Affleck, 3 Sm. & Giff. 394; Re Dykes, L. R. 7 Eq. 337. 5 Taylor v. Wheeler, 2 Ver. 564. 6 Shannon v. Bradstreet, 1 Sch. & L. 52. 7 Wilkes v. Holmes, 9 Mod. 485. will and election of the donee, and equity, therefore, will not say that he shall exercise it, or do that for him which he does not think fit to do for himself.1 3 Acting on this principle, the court formerly refused to give any aid in cases where trustees, having a power to sell an estate, had sold it without including that part of it which consisted of timber or minerals, or where, having sold an estate with timber or minerals, they had allowed the tenant for life, or some other party, to receive a part of the purchase-money on account of the timber or minerals. For the trustees had no power, at law, to sell the estate without these adjuncts, and consequently the case resolved itself into one of non-execution of a power to sell an estate in its entirety. We pointed out, however, in our chapter on estates for life, that a recent statute has now 22 & 23 Vict provided a remedy in cases where there has been an inadvertent sale of an estate with the timber thereon, or any other articles attached thereto, and the trustees have allowed some other person to receive the purchase-money for such timber or articles. And to this we have to add that the 25 & 26 Vict. c. 108, has 25 & 26 Vict. enacted that no sale of land, made before the date of the passing of the act,5 by any trustee or other person, expressed or intended to be made in exercise of any trust or power authorizing the sale of land and not forbidding the reservation of minerals, and which sale shall have been made with a reservation of minerals with or without rights or powers for working such minerals, shall be invalid on the ground only that the trust or power did not expressly authorize such exception or reservation: and that no sale, made before the date of the act, of any minerals separately 1 Per Sir J. Jekyll, M. R., 2 P. Wms. 490. 2 See Cockerell v. Cholmeley, 1 Russ. & My. 418, 424. 5 7th August, 1862. 4 S. 1. c. 108. Destruction and alienation of powers. Powers sim cannot be alienated. from the residue of the land subject to the trust or Coming now to the destruction and alienation of powers, we will first remind the reader that powers are for this purpose most conveniently divided into those which are, and those which are not, simply collateral. Powers simply collateral cannot be, in any way, ply collateral destroyed or alienated. But it is otherwise with destroyed or powers not simply collateral. For these may be, under certain circumstances, (1) suspended (or partially destroyed); (2) extinguished (or wholly destroyed); or (3) alienated. We will proceed to consider these points separately. But powers not simply collateral may be. Suspension of powers. The suspension of powers can only occur in cases 1 S. 2. 3 Digge's Case, 1 Rep. 173 a. 4 ! |