(1) Where there is no leading description, but there is property which answers the description exactly.

(2) Where there is a leading description, followed by words of additional description to some extent inconsistent with the leading description.

(1) If the words describe and apply specifically to a definite subject, the operation of the gift cannot be extended beyond the very terms in which it is expressed, nor can extrinsic evidence be resorted to for the purpose of shewing that something different from the description was intended by the testator.

Thus where there is a gift of lands in the parish of A., and in the occupation of B., lands not in the parish of A. or not in the occupation of B. will not pass.

There is here no leading description; and neither part of the description is inconsistent with the other.

(2) But if the words of description when examined do not fit with accuracy, and if there must be some modification of some part of them in order to place a sensible construction on the will, then the whole must. be looked at fairly, in order to see what are the leading words of description and what is the subordinate matter, and for this purpose evidence of extrinsic facts may be regarded. Hardwick v. Hardwick (1873), 16 Eq. 168, and the subordinate matter may be rejected. (Falsa demonstratio non nocet.)

Example.-Devise of farm and lands called H. in the parish of L., containing 80 acres more or less, now in the occupation of C. or his assigns.

The farm called H. was in the occupation of C. at the date of the will. It contained 175 acres, of which 89 were freehold in

the parish of L., 66 were copyhold in the parish of L., and the balance were copyhold in an adjoining parish.

Held, that the whole farm of 175 acres passed. It will be observed that the words of acreage were rejected, and also the words "in the parish of L."

Devise of messuage, farmhouse, with the barns, &c., gardens, orchards, &c., called T. in the parish of E. G. in the occupation of B.

T. was situate in two parishes, and all except a small portion was in the occupation of B.

Held, that all except the latter portion passed. The words “in the parish of E. G." were rejected. Whitfield v. Langdale (1875), 1 C. D. 61.

Upon this principle a reference to occupation may be rejected where it is not part of the leading description. Hardwick v. Hardwick (1873), 16 Eq.

168.

So the word "freehold" may be rejected in like manner. In re Bright-Smith (1886), 31 C. D. 314. It is of course a question of construction in each case whether or not there is a leading description.

CHAPTER XIV.

POWERS OF APPOINTMENT..

POWERS of appointment-which are unknown to some systems of law, e.g., the French-play a very large and useful part in the English system, for by their means a testator is enabled to indicate the general class of persons to whom he wishes his estate to go, while at the same time he is enabled to give to another person the power of settling at a later date which particular members of the class shall be benefited, and in what shares and proportions, so that the final provisions can be suited to circumstances which it was out of the power of the testator to foresee.

Powers of appointment may be General or Special. The property which is subject to a power of appointment may be realty or personalty, or both.

The person who creates the power is usually called the donor of the power.

The person to exercise it is usually called the donee of the power, or the appointor.

The person in whose favour it is exercised is usually called the appointee.

A power is general when the instrument creating it places no restrictions upon the persons to whom the property may be appointed, so that the person to whom the power is given may appoint to any person in the world, including himself; it is not general if the instrument creating it excepts certain particular

persons from its operation. In re Byron's Settlement,

[1891] 3 Ch. 474.

Nor is it general if it is to be expressly referring to the power. (1889), 43 C. D. 222.

exercised by a will

Phillips v. Cayley

In such cases the power cannot be exercised by a mere residuary devise or bequest under s. 27 of the Wills Act, mentioned below, but must be exercised specifically.

A power is special when the appointor may only appoint to certain named persons or to a certain class of persons marked out in the instrument creating the power.

Powers of appointment occur chiefly in marriage settlements and in wills; they are almost invariably followed by a clause specifying to whom the property is to go if no appointment is made-commonly called a "gift in default of appointment."

The following examples of the two kinds are supposed to be taken from wills :

General Power.-[Devise and bequest to trustees upon trust to pay to A. the annual income during her life], and after her death I direct that the said trustees shall stand possessed of the said property upon trust for such person or persons as the said A. shall from time to time by deed revocable or irrevocable or by will or codicil appoint. And in default of and subject to any such appointment [upon trust for the next-of-kin of the said A. at the date of her death as if she had died intestate and without having been married].

Special Power.- [Devise and bequest to trustees upon trust to pay the annual income to A. during her life], and after her death I direct that the said trustees shall stand possessed of the said [property] upon trust for all or such one or more exclusively of the others or other of the children of the said A. in such shares and in such manner in all respects as the said A. shall from time to time by deed revocable or irrevocable or by will or

codicil appoint. And in default of and subject to any such appointment [upon trust for all or any the children or child of the said A. who being a son or sons shall attain the age of twentyone years or being a daughter or daughters shall attain that age or marry, if more than one in equal shares].

The gift in default of appointment may of course be in any form.

If it is not specified in what way the power is to be exercised (e.g., by will or deed, or either), the person in whom the power is vested may exercise it by will or by deed. In re Jackson's Will (1879), 13 C. D. 189.

But a power exercisable by will only cannot be exercised by deed, and vice versâ.

Formerly it was common to insert special directions relative to the execution of the deed or will by which the power was exercised-for instance, that it should be executed in the presence of three or more witnesses. Such formalities are now seldom (if ever) attached to the exercise of the power; and even if they are so attached they can be disregarded in the case of the exercise of the power by will, for s. 10 of the Wills Act provides that:

66

'No appointment made by will, in exercise of any power, shall be valid, unless the same be executed in manner herein before required; and every will executed in manner herein before required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding 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."

So that a will in the usual English form is essential, and also sufficient, for the execution of any