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daughters, for the portions given them by these instructions, an issue was directed to try whether these notes were part of the last will of A., and a verdict was given that they were a will; whereupon the Court decreed them to be a good execution of the power.

Treat. of Eq. 27. Mr. Fonblanque observes, that this case has B.1.c.4.§25. been cited to prove that a non-execution of a power will be aided in equity; but that it is clear from the circumstance of directing an issue to try whether these notes amounted to a will, that the Court did not think the accident of the father's death, before he had completed his intent towards his younger children, a sufficient foundation for relief; it therefore directed a trial to ascertain whether these notes were a will; and it being found that they were, the question then was reduced to this, whether the Court could relieve the younger children, in respect that the will wanted circumstances which were required by the power to attend the execution of it; which, as between the younger children and the heir, it certainly would do; the case being, by the verdict, a case of a defective execution only.

Piggot v. Penrice, Com. Rep. 250.

28. A married woman having a power of revocation and appointment, and being sick, wrote a letter to her attorney who had drawn her settlement, desiring he would prepare a deed whereby she might give the inheritance to her niece, and on the back of the letter it was written that the attorney should keep it a secret. The attorney however communicated this letter to the husband, and several days intervened, during which the attorney swore that he did not propose any method to the husband, or use any means, to prevent the revocation. The question was, whether this letter amounted to a revocation in equity; and it was decreed that it did not.

29. In the case of Lassells v. Lord Cornwallis, 2 Vern. 465. Lord Keeper Wright said, the Court of Chancery had not gone so far, as where a person had a power to raise money, if he neglected to exercise that power, to do it for him; although he thought it might be reasonable enough, and agreeable to equity, in favour of creditors. But in a modern case it was held, that where a person had a power of charging lands with 2,000l. which he never executed, the power could not be considered as assets for payment of debts.

30. By the settlement made between Sir John Coghill and his son, certain estates were limited to him for life, with a power to charge them with the payment of 2,000 7. Sir J. C. having died in debt, his creditors contended that this sum was assets, for payment of his debts.

The Master of the Rolls (Sir W. Grant) declared, that the power not having been executed, the money could not be raised.

Holmes v.
Coghill,
Ves. 499.

7

Upon an appeal, Lord Erskine said, the general 12 Ves. 206. question was, whether the sum of 2,000l. which Sir J. C. had power to raise, was to be considered as assets. The first ground upon which that might be maintained was, that jus disponendi was to be considered as property itself. If there was no case directly in point, the result of the authorities was, that a general power of disposition, not restrained as to the objects or the mode, was in effect property: The distinction between power and property being, that the former was subject to some restraint, either as to the objects, or the mode of disposition; the latter consisting in general and unconfined dominion.

131.

2. There was no doubt, where an attempt was 1 Cox. Rep. made to execute a power in favour of creditors, but the execution was defective, the defect would be

George v.
Milbanke,
9 Ves. 190.

Coke's Case,
Godb. 289.

supplied. The law of the Court was also admitted, that if a power was executed in due form, but in favour of a volunteer, the Court would take the subject from that person, and give it to the creditors of him who had the power. But where there was a complete want of execution, it could not be supplied for creditors. The decree was affirmed.

31. Where a person has a power of revocation, by Jenk. Cent.7. the exercise of which he may acquire an estate in fee simple, the land will be liable to debts due to the

Ca. 19.

Crown.

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7. And by a Bargain and Sale, 22. A Power may be forfeited to

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TH

HE first and most obvious mode by which A complete powers, whether relating to the land, or col

Execution.

lateral to it, may be extinguished, is by a complete execution of them. And it was formerly held, that even a partial execution of a power operated as an Zouch . extinguishment of it; but this doctrine is not now ante, c. 16. deemed to be law.

Woolston,

§ 39.

111.

2. If a power reserved over a legal estate, is de- Barnad. R. fectively executed at first, it may be executed over again, and the last execution shall stand; the first being a mere nullity.

be

Powers relating to the Land may released. 1 Rep. 174 a.

Albany's
Case,

3. Powers relating to the land, whether appendant, or in gross, may be destroyed by a release to any person having an estate in possession, remainder, or reversion, in the lands to which the power relates: for where powers are given to a person having an estate or interest, either present or future, in the land, the exercise of them is considered as a species of property, advantageous to him; and there is no reason why he should not be allowed to depart with, or exclude himself from, the benefit of it.

4. Francis Bunny enfeoffed Miles Hitchcock, to 1 Rep. 110 b. the use of the said Francis for life, and after to the use of David Bunny in tail, &c., with a proviso that it should be lawful for the said Francis to alter, change, or determine any of the uses limited in the said deed. Afterwards Francis Bunny, by his deed, did remise, release and quit claim to the said Miles and David, the said condition, proviso, and agreement, and all his power, liberty, and authority aforesaid. It was resolved that the power was destroyed by this release.

Powers appendant barred by Feoffment. ante, c. 4.

ante, § 4.

By Fine or
Recovery.

And by Bar

gain and

Sale, &c.

5. Powers appendant may be barred by the feoffment of the persons to whom they are given; because a feoffment with livery is of such force that it excludes the feoffor, not only from all present, but also from all future rights and titles; and in Albany's case it was agreed by the Judges, that a power to revoke and limit new uses might be utterly gone and extinguished by a feoffment.

6. Powers appendant may also be barred and extinguished by fine, or common recovery; of which an account will be given under those titles.

7. Powers appendant may also be extinguished by any of those conveyances which derive their effect

1 Inst. 342 b. from the statute of uses; and which are said to

n. 1.

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