failed. For where an estate is made to a man, and the heirs of his body, and if he die without issue, or without heirs of his body, the remainder over, this is a good limitation, whenever the issue fails; though in that case, if he leaves issue, he cannot properly be said to die without issue. But this was a much stronger case, for death is a single act, and to be performed but once, and though the issue dies without issue, a year after, it cannot be said he died without issue, because he actually left issue; and yet a limitation over in such a case is good: but her surviving was a continuing act, and she survived her husband as much a year after his death, as she did the first moment; and therefore, if the issue fails during her life, she actually survives without issue, or not having issue, because the issue fails during her survivorship, which continues after the failure of issue and this was the plain and natural meaning of the words, and agreed with the intention of the parties; which was to give her the disposal of so much lands, in case the issue to be provided for by the settlement failed. And therefore dismissed the plaintiff's bill. 20. Where a person has a power to charge lands Kilmarry v. Geery, with a sum of money, he may also charge it with the 2 Salk. 538. payment of the interest. For the intention is, that Boycot v. the land should be charged with the principal money, and that of course must carry interest, otherwise it could not be raised. Cotton, 1 Atk. 552. Freke, a Trafford v. 1 P. Wms. 21. Where a power is given to trustees to raise sum of money out of the rents and profits of lands, Ashton, they may raise it by sale or mortgage; especially 415. where it is to be raised by a certain day, and the Joy v. Gilannual profits would not be sufficient to raise it, on 2 P. Wms. that day. But where the words are to raise a sum 13. bert, Beale v. Beale, 244. of money out of the annual profits, there the trustees cannot sell or mortgage. 22. Where there was a power to charge lands with 1 P. Wms. portions for younger children, living at the father's death, a child, in ventre matris, was considered within the power. For it might be well looked upon, in equity, to be living at the father's death, in ventre matris. A Power to appoint, im 23. With respect to common law powers, created by devise, they will be discussed in Title 38. Devise. 24. Although a power of appointing new uses, plies a Power implies a power of revoking the former ones; because otherwise the power of appointing new uses could not be exercised; yet a power of revocation alone, does not imply a power of appointing new uses. to revoke, not e contra. Ward v. 1 Sid. 343. 242. 2 584. 46. 25. This doctrine was contradicted by Lord K. Finch, who held, that if A. reserved a power to revoke, without saying any thing of limiting new uses, Anon. 1 Stra. yet he might limit new uses. But Sir J. Strange reports, that upon a trial at bar, the Court of King's Bench was of opinion, that a power of revocation alone, did not enable a person to limit new uses. If, upon such revocation, the person revoking became seised in fee, he might dispose of the lands by deed or will; but not by a new declaration of uses. But includes a Right to reserve a new Power. Hatcher v. Curtis, 26. A power of appointment, which relates to the land, includes a right to appoint either absolutely, or with a new power of revocation and appointment. But if a person once executes a power of revocation, 2 Freem. 61. and makes an appointment of new uses, by deed, over the whole estate, his power is thereby completely exhausted; unless he reserves to himself a new power of revocation and appointment. Hele v. 1 Ab. Eq. 342. 27. Sampson Hele, being seised in fee of the lands in question, conveyed them in 1684, by lease and 474. release, and fine, to trustees; to the use of himself Prec. in Cha. for life, remainder to the use of his son for life, re- Printed mainder over. In the release there was a power Cases, Dom. given to Sampson Hele, to revoke the uses contained Proc. 1717. therein, and to limit other uses; and also to revoke or alter such new limitations, and to declare other uses. Sampson Hele did accordingly, by deed poll, in 1687, reciting his power, revoke the uses limited. in the release of 1684, and appointed new uses: and by an indenture in 1704, between him and trustees, reciting the release of 1684, and the power of revocation therein, and also the deed poll of 1687, by which he had revoked the first uses, and limited new ones; did, according to the power and authority to him by the said recited indenture reserved, and the proviso therein specified, revoke the uses limited by the deed poll, and by virtue of the said power appointed new ones. The question was, whether the deed poll of 1687, and the uses thereby limited, were well revoked by the indenture of 1704. The Lord Chancellor declared, that this was a new case: that he did not find any authority to warrant such a revocation; nor was there an instance, in any of the authorities which were insisted on, of any such power of revocation. But referred it to the Judges of the Court of King's Bench, for their opinion; whether the uses limited by the deed poll of 1687, were well revoked by the indenture of 1704, by virtue of the power of revocation contained in the indenture of 1684. The Judges of the Court of King's Bench certified their unanimous opinion to be-"That the power of revocation in the indenture of 1684, was fully executed by the deed poll of 1687; and that the farther power in the indenture of 1684, to revoke any new appointment of uses, was void in its crea Unless the Power be collateral. Wall v. tion, as to such uses as should afterwards be duly limited, unless a power of revocation should be again expressly reserved, which was not in this case; and consequently, that the uses limited by the deed poll of 1687, were not revoked or annulled by the indenture of 1704." The Lord Chancellor concurred in this opinion, and decreed accordingly. The decree was affirmed in the House of Lords. 28. Where the power is collateral to the land, the person to whom it is given cannot, upon the execution of it, reserve to himself a new power of revocation. 29. Sir George Crook having three daughters, de1 Vern. 355. clared by his will, that his lands should descend and Thurborne, To whom Powers may Infants. go amongst his daughters, in such shares and proportions as his wife should by deed direct and appoint. The wife made an appointment in pursuance of the power, in which she reserved to herself a power of revocation. The Court said, that as to the power of revocation, the case might be eased of that, for it was only an authority in the wife; and that being once executed, she could not reserve such power to herself. 30. By the common law, powers and authorities may be given to persons who are in other cases incapable of disposing of lands, on account of particular incapacities and disabilities. For the execution of a naked power or authority cannot be attended with any prejudice to the persons labouring under such incapacities; or to those for whose benefit the authority is exercised. 31. Thus an infant is capable of executing a bare Hollingshead authority. And Lord K. Wright held, that a covev. Hollingsnant entered into by an infant on his marriage, was a good execution of a power. It is however now head, cited 2 P. Wms. 229. settled, that where a power is given to an infant, relating to his own estate, it must be inserted in the deed, that he may execute it during his infancy; otherwise he cannot execute such power. 32. A person devised all his real estate to trustees, Hearle v. Greenbank, in trust to apply the rents and profits thereof for the MSS. Rep. sole and separate use of his daughter Mary, the wife 3 Atk. 695. of W. W., (whom she had married without her father's consent, and who was since become a bankrupt,) during her life, to be at her own disposal, and not subject to the control of her husband. And upon farther trust, that they should permit his said daughter, by any deed or writing to be by her duly executed in the presence of three credible witnesses, to give, devise, and bequeath all his freehold, copyhold, and leasehold estates, to such person or persons as his daughter should think fit; she having a particular regard to his poor relations. Mary, the daughter, living separately from her husband, and having one child by him, did, when of the age of nineteen, in pursuance of the power given her by her father, by will, devise all her real and personal estate to her executors, upon trust for her child, and her other relations. The question was, whether this power, derived to Mary under her father's will, was well executed by her during her infancy? Lord Hardwicke.-This is a question of great consequence, and never determined before. And as 1 can find no precedent that a power of this sort, de rived under a will, can be executed by an infant, I There are cases indeed, powers, but there they am unwilling to make one. N |