8. 27.

has a general power of appointment, and which he has ineffectually 1 Vict. c. 26, appointed. (Spooner's Trusts, 2 Sim., N. S. 129; Gale v. Gale, 21 Beav. 349.) Thus, A. having power to appoint 1,000l. by will, and which in default of appointment was given over to B., duly appointed it to C., who died included in genein the testator's lifetime: A. afterwards made a codicil giving his residue, ral residuary beand the dividends due at his death on the 1,000l. to his wife: it was held, that the 1,000l. passed to the wife under the residuary gift. (Bush v. Cowan, 32 Beav. 228.) Funds ineffectually appointed were held not to pass by a residuary clause in Wilkinson v. Schneider, L. R., 9 Eq. 423.

quest.

Estates A. and B. were so settled that the testator had no power to deal Instances of with A., but had a power of appointment over B. By his will, made after powers exercised this act, he referred to the settlement and confirmed it, and then reciting by general gifts. that he had considerable freehold estates and might become possessed of more, he devised all his real estates of which he might die possessed to certain persons as trustees for purposes totally different from those of the settlement. He had not at the date of his will or at his death any other estates besides A. and B.: it was held, that the testator must be taken to have known that he had a power of appointment over estate B., that the confirmation of the settlement operated only upon the estate A.; and that the devise was a good execution of the power. (Lake v. Currie, 2 De G., M. & G. 536; 16 Jur. 1027; 15 Beav. 472.) By a settlement leaseholds were limited in trust for a wife for life, with remainder as her husband should appoint, with remainder over. The husband by will made a general residuary bequest to the wife, but subject as to such property as was comprised in the settlement, which he thereby ratified and confirmed in all respects, to the trusts thereof. It was held that the will was an execution of the power. (Hutchins v. Osborne, 3 De G. & J. 142.) A testatrix, by her will dated in 1860, devised real estate on trust, in case her personal estate should prove insufficient to pay her debts, legacies, &c., to raise a sum to make good the deficiency. Subsequently she put the estate into strict settlement, reserving to herself a power to charge it with 1,000l. in priority to the uses declared by the settlement. Lastly, she made a codicil bequeathing a legacy, and in other respects confirming her will. Held, that the codicil, without any aid from this section, operated as an appointment under the power; and that even if the codicil had not been made, the will was an express exercise of the power. (Meredyth v. Meredyth, I. R., 5 Eq. 565.)

tion.

By a voluntary settlement in 1848, a settlor transferred a debt to a Contrary intentrustee in trust for such persons and purposes as the settlor should by any deed or instrument in writing appoint, and in default to pay the income to the settlor for his life, and on his death to distribute the amount amongst specified persons. He afterwards executed an appointment, by deed, of part of the fund, and confirmed the trusts of the settlement as to the remainder. By his will, made in 1852, the settlor gave certain legacies, and then gave all his personal estate not otherwise effectually disposed of to trustees. It was held, that the settlor had sufficiently expressed his intention not to affect the unappointed property comprised in the settlement of 1848. ( Moss v. Hasler, 2 Sm. & G. 458; 18 Jur. 973.) It has been suggested that the only safe rule for discriminating between mere conjecture and the contrary intent required by the statute, is to inquire whether there is anything in the will inconsistent with the notion that the residuary bequest is meant to operate as an execution of the power. A testator was under a covenant to pay 2,000l. to the trustees of his settlement, upon trust for his wife for her life, with remainder to his general appointees, by deed or will. By the will he directed his executors to pay the 2,000l. to the trustees, in order that they might invest it, and pay the income to the wife for life; and he then bequeathed his residuary estate, subject to certain legacies, to the wife absolutely: it was held, that the residuary bequest was a good execution of the power. (Scriven v. Sandom, 2 Johns. & H. 743.) As to a contrary intention, see further, Pettinger v. Ambler, L. R., 1 Eq.

510.

Coupling sections 24 and 27 together, the true construction of this statute Effect of sections is, that a will may operate as an execution of all powers vested in the 24 and 27.

testator immediately before his death. A person sui juris must, therefore, be held to intend his will to operate on powers, which he had not at the date of executing it, but which he acquired before his death. (Per Wood, V.-C., Thomas v. Jones, 2 J. & H. 482.) General powers have been held to have been executed by wills dated prior to the instrument creating the power. (Patch v. Shore. 2 Dr. & Sm. 589; Hodsdon v. Dancer, 16 W. R. 1101.) But where the testator is himself the settlor, the court may gather from the surrounding circumstances an intention on the part of the settlor to take the property comprised in the settlement out of a will of prior date. (Re Ruding's Settlement, L. R., 14 Eq. 266.)

Where A. bequeathed her residue to such persons as B. should by deed or will appoint, and in default to his next of kin, and B. died before A., it was held that B.'s will could not operate as an execution of the power by anticipation. (Jones v. Southall, 32 Beav. 31.)

Special powers are not within sect. 27 (Re Caplin's Will, 2 Dr. & Sm. 527), and are therefore governed by the old law. Thus, wills dated since 1837 have been held to operate in execution of special powers, on the ground of the testator's intention to dispose of the property which was the subject of the power. (Rooke v. Rooke, 2 Dr. & Sm. 38; Re Gratwick's Trusts, L. R., 1 Eq. 177. See Ferrier v. Jay, L. R., 10 Eq. 550.)

A settlement contained a power for the tenant for life by deed or will to charge lands comprised in the settlement with 5007. for his younger children, and to limit a term to raise the money. In 1846, the tenant for life devised the lands, charged with the payment to his younger children of legacies amounting to 500l.: but the will contained no reference to the settlement, nor did it limit any term. Held, that the will operated as an exercise of the power. (Davies v. Davies, 7 W. R. 85.)

A., being entitled to a share of a testator's residuary estate, by will dated in 1845, bequeathed all the effects due to him from that estate to his children. The estate was then unadministered, but it was afterwards administered, and certain debts due to it were allotted to A. as his share of the residue. After which he settled the debts in trust for himself for life, remainder in trust for his sons and daughters, or any of them or any of their children, as he, from time to time by deed or writing to be by him duly executed and attested or by his will, should appoint: it was held, that by sect. 24 the will spoke from A.'s death; and that inasmuch as the terms used in the will referred to the property which was the subject of the power, the will was a good execution of the power. (Stillman v. Weedon, 16 Sim. 26.)

A general power given to the survivor of two persons may, under sect. 24, be exercised by the will of the ultimate survivor executed during the joint lives. (Thomas v. Jones, 2 J. & H. 475; 1 De G., J. & S. 63.) As to whether a special power can be so exercised, see Sugd. Powers, 124, 8th ed.; Cronin v. Roche, 8 Ir. Ch. R. 103; Cooper v. Martin, L. R., 3 Ch. 47; 4 Davidson, Conv. 38, 2nd ed.) Where a power to appoint among children was, in default of any joint appointment by the husband and wife, to be exercised by the survivor" after the decease of the other:" it was held, that a will made during their joint lives by the one who survived did not operate as an execution of the power. (Cave v. Cave, 8 De G., M. & G. 131.) Sect. 27 applies to the wills of married women. (Bernard v. Minshull, Johns. 276; see the note to sect. 8, ante, p. 503.)

An appointment expressed to be made in exercise of every power enabling the appointor, does not exercise a power of revocation, if there be other property to which the appointment can apply. (Pomfret v. Perring, 5 De G., M. & G. 775; Palmer v. Newell, 20 Beav. 38.)

A married woman, in 1846, duly made a will in execution of a general power of appointment, disposing of certain stock, and appointing executors thereof. In 1855, she made another will without the consent of her husband, disposing of certain other property under her marriage settlement, and of other articles; it did not refer to the general power under which the will of 1846 was made, nor to the stock thereby appointed, but it contained a general clause of revocation, and named a different executor. It was held, that this section was intended to enlarge the dispositive powers of

8. 27.

testators, and has no bearing on questions of revocation. That the clause 1 Vict. c. 26, of revocation in the will of 1855 being in general terms, and containing no reference to the general power in the execution of which the will of 1846 was made, or to the property thereby appointed, did not operate to revoke that will. (In bonis Merritt, 1 Sw. & Tr. 112.)

tation shall be

construed to pass

the fee.

28. Where any real estate shall be devised to any person A devise without without any words of limitation, such devise shall be construed any words of limito pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will (g). (g) In wills prior to 1838, a devise of lands to a person without any words of limitation confers an estate for life only. (Hawk. Wills, 130.) The various cases in which such indefinite devises are enlarged to a fee simple are considered; 2 Jarm. Wills, 248; Hawk. Wills, 131. And see Lloyd v. Jackson, L. R., 2 Q. B. 269; Bolton v. Bolton, L. R., 5 Ex. 145; Pickwell v. Spencer, L. R., 7 Ex. 105; Re Harrison's Estate, L. R., 5 Ch. 408; Lander v. Elsmore, 27 L. T., N. S. 603.

A devise, before 1838, of "rents and profits" to A. without words of limitation passes an estate for life: such a devise, since 1837, passes the fee. (Hawk. Wills, 120.) And a devise of the "income" of land also passes the fee. (Mannox v. Greener, L. R., 14 Eq. 456.)

Rule as to wills

prior to 1838.

A. being seised in fee of freeholds, by his will dated since this act, Cases under this devised them to B. "to be kept in trust for C., that is, B. is to let the section. premises, and give the rent to my son C. for his support." Held, that C. took the absolute interest. (Malcolmson v. Malcolmson, 17 L. T. 44.)

A testator, by his will dated in December, 1838, gave to his niece the house she lived in, and grass for a cow in Gill Field. Held, that she took an estate in fee simple in the house, and the right of pasture of a cow during her pleasure. (Reay v. Rawlinson, 29 Beav. 88.)

A testator devised his real estate to a devisee in fee charged with certain annuities or annual rent-charges to two annuitants: it was held, on a special case, that the annuitants took the annuities for life; and that this section of the act only applies to estates vested in or in the power of the testator, and not to estates or interests created de novo by his will. (Nicholls v. Hawkes, 22 L. J., Chanc. 255; 10 Hare, 342.) As to the question whether an annuity given by will is perpetual or for life only, see Hawk. Wills, 125; Bent v. Cullen, L. R., 6 Ch. 235.

Lord St. Leonards considers that cases where, after the devise without any words of limitation, there are gifts over also without words of limitation, were not within the purview of the act, and that it would be dangerous to extend it to them. (R. P. Stat. 382.)

Where the particular devise is without words of limitation, a "contrary Contrary intenintention" that the fee shall not pass does not appear from the fact that in tion. other parts of the will words of inheritance have been used. (Wisden v. Wisden, 2 Sm. & Giff. 396.)

A testatrix, by her will dated in 1852, devised copyholds to a married woman to be her sole and separate property, and with power to her to appoint the same to her children and her husband in such way and in such proportions as she might think fit. It was argued, that a contrary intention appeared by the will; but the court held, that the married woman was devisee in fee, that the execution of the power was not made a duty, and, therefore, there was no trust in favour of the husband and children. (Brook v. Brook, 3 Sm. & Giff. 280.)

A contrary intention was collected from the circumstance, that by the same will an estate was subsequently given which could not come into existence unless the first devise was construed to be a life estate. (Gravenor v. Watkins, L. R., 6 C. P. 500.)

29. In any devise or bequest of real or personal estate the words "die without issue," or "die without leaving issue," or

S.

M&M

1 Vict. c. 26, 8. 29.

leaving issue," shall be construed to mean die with

out issue living at the death.

Old rules of construction as to wills prior to 1838.

Cases under new law.

Words importi g failure of issue.

"have no issue," or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise provided, that this act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue (h).

(h) In wills prior to 1838, the words "die without issue" and "die without having issue," in gifts both of real and personal estate, are construed to mean the death of the person spoken of and failure of his issue at the time of his death or at any time afterwards; unless the context shows the meaning to be confined to a failure of issue at the time of his death. The words "die without leaving issue" in devises of real estate are construed in the same way as the words "die without issue;" but in bequests of personalty they import a failure of issue at the death of the person spoken of. (Hawk. Wills, 205, 213.)

The various cases in which the words "die without issue," &c., are restrained by the context to mean a failure of issue at the death of the person are considered in Hawk. Wills, 207; Jarm. Wills, 472 et seq.; see Eastwood v. Avison, L. R., 4 Ex. 141; Morgan v. Morgan, L. R., 10 Eq. 99, which was the case of a settlement; Lander v. Elsmore, 27 L. T., N. S. 603; and Wilson v. Maddison, 16 W. R. 417.

It was said, that the object of this section is to redress the inconvenience which had arisen from the words "dying without issue," and other similar words having acquired a legal meaning different from the popular meaning. (Greenway v. Greenway, 1 Giff. 138.)

Where a testator, by his will dated in 1859, directed his residuary personal estate to be invested" and the interest to be divided half-yearly between his four sons, and at the decease of either without lawful issue, such share to revert to the remainder then living or their child or children:" it was held, that each of the four sons took an absolute interest in his share, subject to be divested in case of his dying without leaving issue. (Dowling v. Dowling, L. R., 1 Ch. 612.)

By his will, dated in 1857, a testator devised land to A.; in case of A. dying before B. and leaving no issue, then to B.; should both A. and B. die without lawful issue, then over. Held, that A. took an estate in fee liable to be divested, (1) in the event of his dying in the lifetime of B. without leaving children living at his death; and (2) in the event of both A. and B. dying without leaving any children. (Re Mid Kent R. Co., 11 W. R. 417.)

By his will, dated in 1845, a testator gave a freehold house and the furniture therein to A., but if A. should die in the lifetime of B., without leaving lawful issue, then over. A. died in the lifetime of B., leaving issue, who all died in the lifetime of B. Held, that the gift over took effect. (Jarman v. Vye, L. R., 2 Eq. 784.) See also Re Allen's Estate, 3 Drew.

382.

It has been held, that as this section is expressly confined to the word "issue," it makes no change in the meaning of the expression" die without heirs of the body." (In re Sallery, 11 Ir. Ch. R. 236; Harris v. Davis, 1 Coll. 416, and the remarks on that case, 2 Jarm. 507; see contra, Dodds v. Dodds, 10 Ir. Ch. R. 476). Where a testator, by his will dated in 1840, devised

8. 29.

real estate to his daughter" and her lawful heirs," "but in case she should 1 Vict. c. 26, not happen to have any child," then to his nephew and his heirs, it was held, that the daughter took a fee simple with an executory devise over to the nephew. (Mathews v. Gardiner, 17 Beav. 254.)

This section of the act has no application to cases in which the words dying without issue" are combined with other words, such as "dying under twenty-one;" which additional words, upon the authority of decided cases, modify their meaning. (Morris v. Morris, 17 Beav. 198; 17 Jur. 966.) A testator devised an estate in fee to his son, but if he should die under twenty-one, over; by a codicil he limited the estate over in the event of the son dying without issue "or" under twenty-one: it was held, that "or" must be read "and," and that the executory devise over took effect only on the happening of both events, and consequently that A., on attaining twentyone, had an absolute estate in fee simple. (b.)

A testator, by his will dated in October, 1838, gave the residue of his Contrary intenreal and personal estate to trustees, " in trust for all my children in equal tion. shares, and the heirs of their bodies and in case there shall be

a failure of issue of any such children, then as to the share or shares of him, her or them, whose issue shall so fail, to the use of the others or other of them, and the several heirs of their respective bodies." The testator was possessed of freehold and leasehold property and left one daughter, and one son, who executed a disentailing deed of all the freeholds devised to him by his father's will. It was held, that the son was entitled in fee to half of the freeholds, and absolutely to half of the leaseholds. The ViceChancellor appears to have decided that, although speaking with strict accuracy there cannot be a bequest of personalty to a person in tail, yet that both as to freeholds and leaseholds the case fell within the exception "unless a contrary intention," &c. (Green v. Green, 3 De G. & Sm. 480.)

A testator, by his will dated in 1850, gave his real and personal estate in trust as to the annual income for his brothers E. and C. or the heirs of their bodies; and if either should die leaving heirs of his body, his share should go to such heirs; but if one die without issue, then the whole income should go to the survivor, or in case of his death to his heirs; but in case both should die without issue, then the whole property should be divided equally among the testator's next of kin. It was held by Stuart, V.-C., that the case was governed by the rule laid down in the statute, and that there was a valid gift over of the personalty to the testator's next of kin, in the event of both his brothers dying without leaving issue at their respective deceases. (Greenway v. Greenway, 1 Giff. 131.) This decision was affirmed on the ground, that on the true construction of the will the words by which the gift over was introduced, were equivalent to "in case both the testator's brothers should die without leaving issue at the time of their death." But he abstained from giving any opinion as to whether the words in this section "unless a contrary intention,' &c., apply to a gift of personalty, or are to be confined to a devise of real estate. (Greenway v. Greenway, 2 De G., F. & J. 137; and see Re O'Beirne, 1 J. & Lat. 352.)

The operation of the section is limited by the final proviso. The Final proviso. question whether words importing a failure of issue refer to the objects of a preceding gift, is discussed 2 Jarm. Wills, 424 et seq.

tees or executors,

to a church, shall

interest.

30. Where any real estate (other than or not being a pre- No devise to trussentation to a church) shall be devised to any trustee or exe- except for a term cutor, such devise shall be construed to pass the fee simple or or a presentation other the whole estate or interest which the testator had power pass a chattel to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication (i). (i) "The meaning of this section is, that any devise under which before the passing of the act a trustee would have been held to take an indefinite