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directed how the share of each daughter should go after her death; and though, if there had been a seventh or an [*335] eighth daughter, the appointment would *have been

bad as to their children, nevertheless the appointment as to the share of one of the daughters who was enumerated and named by him would have been good. The partial invalidity of the appointment with regard to the shares of her younger sisters could not have affected the validity of the appointment of her share.1

SECTION VIII.

HOW FAR EQUITY AIDS THE EXECUTION OF POWERS.

1. ALTHOUGH the law is thus strict in requiring an exact conformity to the terms of a power when executing it, equity often interposes to correct or supply a defective execution, where there has been a substantial compliance with the terms of the power. But it never interposes where the power has not been executed, and only where the interest created is what was authorized by the power, and where there is merely a defect in the matter of form, and the principal intent of the donor will be accomplished by carrying the execution into effect.2 If one with a power to lease for twenty-one years exceed that time, the lease would be void at law, but equity might hold it good pro tanto for the term of twenty-one years.3

2. The mode in which equity thus interposes is by requiring the person who is to hold the estate until the power shall have been executed to give it up in favor of him to whom the appointor intended to appoint, and for whom he took substantial steps to that end.1

3. Among the instances where this power has been exer

1 Griffith v. Pownall, 13 Sim. 393.

2 Story, Eq. Jur. § 169-175; 2 Sugd. Pow. 88 et seq.; Laussat's Fonbl. Eq. 238, 239, and notes; Wms. Real Prop. 248, 249; 4 Cruise, Dig. 222 et seq.; Burt. Real Prop. § 1559; Wilkinson v. Getty, 13 Iowa, 159.

3 Sinclair v. Jackson, 8 Cowen, 581.

4 Wms. Real Prop. 248.

cised by courts of equity have been cases where the appointment was in favor of creditors; and the terms by which the power was created required three attesting witnesses, but only two attested its execution. So, where a similar mistake has been made, it has been exercised in [*336] favor of a bona fide purchaser. So where there is a valuable consideration, and by accident the necessary instrument has been imperfectly executed, or the appointment was by will when it should have been by deed. In Virginia, in one case, a sale made by one of several executors was sustained upon the doctrine above stated, the sale having been made under a power to sell for the payment of debts.

4. It may be well to remind the reader again, in connection with what has been said of the execution of powers, that the several estates created by such execution, as they arise, take their places in the settlement in the same manner and order as would have been the case had each been originally limited to the appointee without the intervention of a power. So that, if it would have been invalid in the original settlement, it would be equally so as the offspring of a power created in such settlement."

5. And although an appointment, when executed, is regarded like a use created by the deed which creates the power itself, it nevertheless ordinarily takes its effect from its execution, and not its creation. The consequence of this rule is often very important in its bearing upon the rights of individuals. In one case a power was given by will to the devisee to appoint by deed or by will to such of her children as she chose, and she appointed by will to two who died in her lifetime. Now, if the appointment could be held to relate back to the time when the will which created the power took effect, the estate would be considered as vesting in the two, and not

1 Gilbert, Chanc. 301; 2 Sugd. Pow. ed. 1856, 125.

2 Schenck v. Ellenwood, 3 Edw. Ch. 175; Cotter v. Layer, 2 P. Wms. 622. 3 Hunt v. Rousmaniere, 2 Mason, 251; Cotter v. Layer, 2 P. Wms. 622; Tol

let v. Tollet, 2 P. Wms. 489; Godwin v. Kilsha, Ambl. 684.

4 Roberts v. Stanton, 2 Munf. 129, Roane, J., dissenting; contra, M'Rea v. Farrow, 4 Hen. & M. 444.

5 Wms. Real Prop. 256; Co. Lit. 271 b, Butler's note, 231; Commonwealth v. Williams, 13 Penn. St. 29; Roach v. Wadham, 6 East, 289.

defeated by their death. But if it could only take effect when the will of the appointor took effect, that is, upon her death, the appointment must fail, having lapsed by the death of the

appointees in the lifetime of the appointor. And it [*337] was held, that the appointment related to the time when it was effectually made, and therefore that the appointment in this case failed.1

6. Although it has been remarked, that powers are more frequently made use of in arranging family settlements than for any other purpose, it is not proposed to pursue this subject into its detail; and it is simply necessary to add, that the powers most usually found in modern deeds of settlement are those of raising a jointure in favor of a wife out of lands held by a tenant for life only, to lease lands by the donee of the power beyond the period of his own estate, and powers of sale and exchange of the lands settled in such deeds of settlement.2

1 Marlborough v. Godolphin, 2 Ves. 61; Co. Lit. 271 b, Butler's note, 231, § 3, pl. 4.

2 Cruise, Dig. Deed, c. 14-16, where the subjects are fully treated of. The reader is also referred to the Appendix for a form of a modern deed of settlement.

CHAPTER VII.

EXECUTORY DEVISES.

SECT. 1. Nature and Classification of such Devises.

SECT. 2.
SECT. 3.

SECT. 4.

SECT. 5.

How Rules as to Perpetuities affect Executory Devises.
Limitations upon Failure, &c., when Remainders or otherwise.
Interests of Executory Devisees.

Executory Devises of Chattel Interests.

SECT. 6. Power of Devisee over a Term.

SECT. 7. Devises for Accumulation.

SECT. 8.

Statute Rules against Perpetuities.

SECTION I.

NATURE AND CLASSIFICATION OF SUCH DEVISES.

1. Executory devises defined.

2. They are interests, though not estates, in land.

8. Of the analogy between executory devises, &c., and remainders. 4-6. Of the origin and introduction of such devises.

7. Of the classes into which they are divided.

8. First, where one fee is limited after another fee.

9. Second, where a freehold is limited in futuro.

10. How devisor's interest is affected in the first and second classes.

10 a. Mr. Smith's seventh class of executory limitations.

11. Mr. Preston's sixth class explained and applied.

12. Future estates, as construed by remainders, rather than executory devises.

13. Principle does not apply to the second class of devises.

14. Rules to distinguish between executory devises and remainders.

14 a. Limitations, both remainders and executory devises.

15. When a limitation over upon dying without issue is a remainder.

16. When a contingent remainder may be changed into an executory

devise.

17. When an executory devise may change to a contingent remainder. 18. How far a limitation may be certain, after one that is uncertain. 19. Effect on a subsequent limitation of a preceding one not a condition. 20. Effect upon subsequent limitations of a prior one carrying the whole

interest.

21. Case of Lion v. Bertiss, 20 Johns. 483.

22.

22 a.

Law as to "dying without issue," &c., being a general failure of issue
Same subject illustrated.

23. Distinguishing characteristics of devises and remainders.

24. Of the respective destructibility of the two.

25. Limitation by devise after a previous estate which fails. 26. Executory devises, not alienable, tend to perpetuities.

1. THERE is a class of interests well known to the law which partake so much of the character of the executory interests created by deeds under the statute of uses, as well as of remainders, that it seems proper to treat of them next in order in the arrangement of the topics of this treatise, and these are what are called Executory Devises. It is not proposed to speak at present of wills and testaments, by which alone they may be created, but of the nature, character, and incidents of the interest in lands embraced under the generic term above mentioned. An executory devise is defined by Blackstone to be "such a disposition of lands by will that thereby no estate vests at the death of the devisor, but only on some future contingency." While Mr. Fearne, objecting that this was broad enough to embrace contingent remainders created by wills, which the law distinguishes from executory devises

in many respects, defines an executory devise, so far [*341] as it embraces lands, as "such a limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law."1

2. Before the nature of an executory devise was settled, there was a long struggle in the courts, which is referred to in Jones v. Roe, where it was finally held that it was a something which might be assigned or released, and would descend, and might be devised; that, though not in all cases properly an estate, it was not embraced in the category of naked possibilities, such as that of an heir expectant to the estate of his ancestor, but was an interest in land. The language of Willes, Ch. J., is quoted with approbation, who says: "Ex

1 2 Bl. Com. 172; Fearne, Cont. Rem. 386, and Butler's note; 1 Jarm. Wills, 798; Lewis, Perpet. 74; Purefoy v. Rogers, 2 Wms. Saund. 388, note; McRee's Adm'rs v. Means, 34 Ala. 349. In the Alabama Code, remainder includes executory devises.

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