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SECTION VI.

OF EXCESSIVE OR DEFECTIVE EXECUTION OF POWERS.

1. In what the execution of a power may be excessive.

2. Doctrine of cy-pres.

3. Rule applicable to excessive execution of a power.

4. When a second estate is accelerated by the first being void.

5. Appointing a less estate than that in the power, good.

6. Conditions not authorized by the power, void.

7. When an excess of execution does not affect.

8.

Of the time when powers should be executed.

9. Effect of priority of execution where there are several powers.
10. Donee cannot revoke an executed use unless he reserves the power.

1. FROM the strictness required by law in the mode of executing a power, a question often arises, whether a donee in undertaking to execute this power has not exceeded it; and if so, how far the execution is good within the limits of his power. This excess may be in including objects not intended to be embraced in the power, or in the quantity or amount of the subject-matter of the appointment, or in imposing conditions in the execution of the power which it does not warrant.1 The following is an example of an excess in the execution of a power, which, to that extent, was void: A. by will had a power to appoint an estate to the children of J. in such proportions and estates as the appointor should direct. He appointed to John for life, with a power to appoint to such uses as he should think proper; and, in default of such appointment, it was to go to his heirs. It was held, that so much of the exercise of this power as gave John a power to appoint was excessive and void. J. could appoint to the children, but could not authorize these, as appointees, to appoint further.2

2. A principle of construction applicable to wills, but not to deeds, called the doctrine of cy-pres, is to be taken in connection with the present inquiry, and is this: If the testator have a general intent, which he undertakes to carry out by

1 Tud. Lead. Cas. 306; 2 Sugd. Pow. ed. 1856, 55.

2 Wickerman v. Savage, 58 Penn. St. 371.

his will, and, in applying this to the particular object expressed in his will, so does it as to defeat his general intent, because the will cannot operate in the manner prescribed, courts will still so construe it as to carry out this general intent. As if, for instance, a testator limit an estate to the unborn son of his son J., and after the death of such unborn son to the sons of the latter in tail. This last limitation is too remote to be effectual in that form. But the general intent being to limit the estate first to the unborn son, and then to his issue, the courts consider the first limitation as an estate-tail in the unborn son, instead of an estate for life, as the will declares it to be.1 Upon a like principle, where a testator by his devise authorized his executor to sell his lands and to apply the proceeds in a way indicated in his will, the sale to be made after the death and only by consent of a majority of his children, and they all died in the lifetime of the wife, it was held that he might nevertheless convey the land, it being a trust-power, the execution of which was necessary to the disposal of the estate, the condition, in the judgment of the court, being annulled by the death of the children.2

*3. Now, where the doctrine of cy-pres does not [*327] apply, the rule as to the excessive execution of a power seems to be, that if the excess can be separated from what is within the legitimate exercise of the power, and if the latter part is not made to depend upon that which is void, or if the objectionable part is distinct from and independent of that which is authorized to be done, the execution, so far as it is conformable to the power, will be sustained, and beyond that will be void. Thus where the appointment was to several, a part of whom only could take, it was held to be a good appointment as to these. So where the power was to charge £7,000, and it was executed by charging £8,000, it was held to be good for the first-mentioned sum.5

1 2 Sugd. Pow. ed. 1856, 60, 61; Wms. Real Prop. 229, 230; Robinson v. Hardcastle, 2 T. R. 241.

2 Leeds v. Wakefield, 10 Gray, 514, 519.

32 Sugd. Pow. ed. 1856, 62, 75; Tud. Lead. Cas. 308; Crompe v. Barrow 4 Ves. 681; Warner v. Howell, 3 Wash. C. C. 12; 4 Cruise, Dig. 205.

4 Sadler v. Pratt, 5 Sim. 632.

5 Parker v. Parker, Gilb. Eq. 168.

4. As a general proposition, if, in executing a power, an estate is limited to take effect after a previous one, and the limitation as to such prior estate is void, the time of the subsequent one will be accelerated, and be as if the void limitation had not been made at all. But this rule does not apply where the previous limitation is void by reason of its violating the rule of law against perpetuities, as where the limitation in execution of a power was to an unborn child, then to the children of such child, and, upon failure of issue, over to A B. The child, in this case, was the object of the power; but the children were not, so that, as to them, the execution of the power was void. A B was an object of the power; but as his estate was only to take effect upon the failure of issue of the child, and this, as will be shown hereafter, was so remote as to make a limitation dependent upon it void, it was held that the limitation to A B would be void accordingly, because it was only intended that A B should take upon the assumption that the previous appointees were capable of taking, [*328] and that he should take only when they had failed by a failure of issue.2 In such and similar cases, "a subsequent limitation under a will or an appointment will not be accelerated merely because the previous limitation proves bad, but the whole, so given, must go as in default of any appointment." Nor does it make any difference that the objects of the prior limitation never came in esse; the validity of the appointment is referred to the time of making it.*

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5. The appointment of a less estate under a power than what the donee might have created is not thereby rendered invalid.5

6. If a donee of power, in undertaking to execute it, annex conditions to the estate he creates which are not author

1 Fuller v. Fuller, Cro. Eliz. 422; Cheddington's case, 1 Rep. 154 b; Good

right v. Cornish, 1 Salk. 226; Thornby v. Fleetwood, 1 Strange, 369.

2 Crompe v. Barrow, 4 Ves. 681; Brudenell v. Elwes, 1 East, 442; Burt. Real Prop. $$ 795, 796.

3 Bristow v. Warde, 2 Ves. 350, Sumner's note, 1.

4 Gee v. Audley, cited in Routledge v. Dorril, 2 Ves. 363. See also the same volume of reports, page 350, note. And see, upon the general subject, Beard v. Westcott, 5 B. & Ald. 801; Tud. Lead. Cas. 308, 313; 2 Flint, Real Prop. 549 54 Cruise, Dig. 205.

ized by his power, the estate will be absolute, and the conditions void.1

7. When in the execution of a power the requirements prescribed in its creation have been complied with, and something ex abundanti added which is improper, the execution will be held good by the rules of equity, and only the excess will be void. But where there is not a complete execution of a power, and the boundaries between the excess and the execution are not distinguishable, it will be bad. Thus, if the donee is authorized by his power to make a lease for twenty-one years, and he makes one for forty, though by law such lease would be wholly void, equity will sustain it to the extent of twenty-one years.3 But had the devise been for two separate and distinct terms, one for twenty-one and the other for nineteen years, neither law nor [*329] equity would sustain the second, though either would hold the first to be good.4

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8. In speaking thus far of powers, those of appointment and revocation have been frequently mentioned; and it may be added, questions as to the time when they may be executed, as well as to the effect of their execution, often arise, of a different character from those which have already been considered. Much will of course depend upon the nature of the powers which a donee is authorized, by the instrument creating them, to execute. They may, for instance, as in Digges' case, be to be executed at different times over different parts of the estate. In that case the grantor covenanted to stand seised to the use of himself for life, remainder to the use of his son in tail, with a proviso that it should be lawful for him to revoke any of the uses or estates, and to limit new It was held, that under this general power he might

uses.

1 2 Sugd. Pow. ed. 1856, 85; Alexander v. Alexander, 2 Ves. Sen. 640; Tud. Lead. Cas. 319.

2 2 Sugd. Pow. ed. 1856, 75; Alexander v. Alexander, 2 Ves. Sen. 640; Parry v. Bowen, 3 Rep. in Chanc. 6; Tud. Lead. Cas. 317, 820; Hay v. Wat. kins, 3 Dru. & Warr. 339.

8 Roe v. Prideaux, 10 East, 158; 4 Cruise, Dig. 202; Sinclair v. Jackson, 8 Cow. 581.

42 Flint, Real Prop. 548; Tud. Lead. Cas. 317.

revoke the uses of a part of the lands at one time, and a part at another, till he revoked the whole.1

9. Several powers are often inserted in the same deed, and two or more of them are to be executed where no provision has been made in regard to their priority. In such a case, the intention of the settlement and the object of the powers must be the guide as to the construction. So the execution of one of two powers may supersede the estate first actually appointed, just as if the estate which supersedes the other had originally been contained in the settlement creating the power. And this must depend upon the nature of the power.2 And it is the remark of Wilmot, J., in Woolston v. Woolston, that "it is the established practice in conveyancing, when it is intended that a power should be executed no further, to release it." 3

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10. But it should be understood, that, where the donee of a power intends to revoke the uses he appoints, he [*330] should expressly reserve this right in the deed executing the power. If such reservation be not made, the appointment cannot be revoked; and this is especially true where the power has been executed upon receiving a valuable consideration. The extent to which this doctrine may be applied may be illustrated by the following case: Lands were settled on A. L. in 1794, upon her marriage, to the use of such person, for such estate, and as she "by any deed or deeds, with or without powers of revocation to be sealed, &c., or by her last will and testament in writing, or by any writing or writings in the nature of a will, &c., should from time to time, and as often as she should think fit, devise, direct, limit, or appoint." In 1830, she made a deed reciting this indenture, and her intention to exercise her power of appointment, and reserving a power to revoke the appointment, and make any other appointment. In 1833,

1 Digges' case, 1 Rep. 174; 4 Cruise, Dig. 201; 1 Sugd. Pow. ed. 1856, 342. 24 Cruise, Dig. 200; 2 Sugd. Pow. ed. 1856, 43, 45; Co. Lit. 271 b, Butler's note, 281; Woolston v. Woolston, 1 W. Bl. 281.

8 Woolston v. Woolston, 1 W. Bl. 284.

4 2 Sugd. Pow. ed. 1856, 243; Co. Lit. 271 b, Butler's note, 231

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