survive the testator.

K. & J. 676.

Eccles v. Cheyne (1856), 2

It is commonly said that a general power of appointment over property is equivalent to absolute ownership; and the above is an illustration of this saying.

III. Destination of the property.

(a) When an appointment under a special power fails, it is caught by the residuary appointment (if any); otherwise it goes to the persons entitled in default of appointment under the former deed creating the power.

(b) When an appointment under a general power fails, if the appointment is specific, the property passes by the residuary gift in the will; if that fails, the destination of the property depends upon whether the testator intended to make the property his own for all purposes. See p. 130.

Lapse in Cases of Charity.

(a) Where there is a gift to a particular charity which is in existence at the death of the testator, but which subsequently ceases to exist before the legacy is paid, the gift does not fail, but is administered by the Court under a scheme for other charitable purposes. In re Slevin, [1891] 2 Ch. 236.

(b) But where there is a legacy for the benefit of a particular charitable institution, and no general charitable intention can be inferred, then, in the event of that institution coming to an end before the testator's death, the gift will lapse like an ordinary legacy. In re Rymer, [1895] 1 Ch. 19.

Where the bequest was "to the rector for the time

being of the A. Seminary for the education of priests in the diocese of W. for the purposes of such seminary," and the seminary had ceased to exist owing to lack of funds, but the remaining pupils had been removed to another seminary, it was held that the benefit of the particular seminary and not the education of priests generally, was the main object of the testator, and, therefore, there was no general charitable intention, and the legacy lapsed.

(c) The legacy will, however, not lapse where the object has only partially failed at the testator's death, or where, although the object has wholly failed, a general charitable intention is shown.

For instance, where the gift was to a school which at the date of the will was carried on as a weekday as well as a Sunday school, and the Government grant was lost so that the weekday instruction ceased but the Sunday school continued and was in existence at the testator's death, the gift did not fail. In re Waring, [1907] 1 Ch. 166.

There is no lapse or failure by reason of the uncertainty of the object in the case of a charity, as there would be in the case of an individual.

For instance, a gift to a trustee to distribute to such persons as he shall think fit, where there is no charitable purpose shown, would be void for uncertainty and would lapse; but a gift to a trustee for such charitable purposes as he shall think fit does not lapse, but will be applied to charitable purposes. Leading case Moggridge v. Thackwell (1803), 7 Ves. 36.

If the charity is misdescribed, evidence will be admitted to show which of several institutions was meant, and, in case it can be identified, the bequest falls within the principles relating to gifts to specific charities; but if the bequest is to an institution which cannot be identified or never existed, the

M.W.

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bequest will generally be held indicative of a charitable purpose, and will not fail for uncertainty, as a bequest to an uncertain individual would, but will be applied by the Court as in Moggridge v. Thackwell, above. Loscombe v. Wintringham (1850), 13 B. 87.

It is a very strong point in favour of a charitable intention if the gift to the misdescribed charity is found among a number of other charitable gifts. See In re Davis, [1902] 1 Ch. 876.

CHAPTER XXIII.

PERPETUITY.

A perpetuity is a future limitation, whether executory or by way of remainder, and of either real or personal property which is not to vest until after the expiration of, or will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interests; and which is not destructible by the persons for the time being entitled to the property subject to the future limitation, except with the concurrence of the individuals interested under that limitation. Lewis on Perpetuity, p. 164.

The "period fixed and prescribed by law" was laid down in Cadell v. Palmer (1833), 1 Cl. & F. 372, in the case of executory devises, and it applies likewise to all other limitations. The decision was as follows: A limitation by way of executory devise is void as too remote if it is not to take effect until after the determination of one or more life or lives in being, and upon the expiration of twenty-one years afterwards, as a term in gross, and without reference to the infancy of any person who is to take under such limitation, or of any other person, the period of gestation being allowed in those cases only where it exists.

In considering the validity of a limitation, the "life or lives in being" which may be taken into account

are the life or lives (of a person or persons alive at the testator's death) expressly or by necessary implication included in the period during which, according to the wording of the limitation, the particular property is not to vest absolutely in interest.

Very frequently the "life or lives in being" to be taken into account are the life or lives of persons to whom the testator has given life interests in property in priority to the interests in the same property as to which there is a question of remoteness. But the testator may also expressly define the period, during which the property is not to vest absolutely, by means of lives entirely dissociated from any interest in the property.

The following examples are illustrative of what life or lives may be taken into account in judging of the validity of a limitation, without reference, however, to the application of the doctrine to the particular cases.

Example 1.--Period defined by a prior life interest. Bequest upon trust for A. for life, and after his death for such of his children as shall be then living.

The property vests in the children at A.'s death, and not before. His life, and his life only, is included in the period.

Example 2.-No prior life interest. Bequest to "such of A.'s children, whether born before or after my death, as shall attain twenty-one" (A. being alive).

A.'s life, and his only, is included in the period, for until his death the full number of his children cannot be ascertained. Example 3.-No prior life interest; lives included, but not named. Bequest to "all my grandchildren, whether born before or after my death."

The grandchildren cannot be ascertained until the death of their respective parents, whose lives are therefore necessarily included in the period under consideration.

Example 4.-Lives expressly included bearing no relation to the persons to take the property.