Effect of a general devise on powers be or the purpose of the trust. Wall v. Bright, 1 J. & W. 494; Lysaght v. Edwards, 2 Ch. D. 499, 515. But it will not if the devise is to tenants in common with limitations over. Thirtle v. Vaughan, 24 L. T. 5 ; 2 W. R. 632. A devise of mortgaged estates on trust to get in the mortgage debts will not pass a legal estate which has descended to the testator as heir of a deceased mortgagee. Ex parte Morgan, 10 Ves. 100. VIII. THE OPERATION OF A GIFT IN GENERAL TERMS In wills before the Wills Act a general devise will not, as a rule, carry lands over which the testator has a general power of appointment. Hoste v. Blackman, 6 Mad. 190; Wills Act. Roake v. Denn, 4 Bl. N. S. 1. fore the As regards realty. But the lands subject to the power will pass: If there is a clear disposition of land, and the testator has at the time no other lands. Standen v. Standen, 2 Ves. jun. 589; 6 B. P. C. 193; Denn v. Roake, 6 Bing. 475; 5 B. & C. 732. But there must be a clear disposition of lands, and not merely such general words as estate or property, though they would be sufficient to pass the proper lands of the testator. Jones v. Curry, 1 Sw. 66; Evans v. Evans, 23 B. 1. The land subject to the power is allowed to pass only in order to give effect to the words of the will, and not because the testator has shown an intention to execute the power, and therefore only so much of the land subject to the power will be allowed to pass as is sufficient to give effect to the words of the will. Thus, if a testator has freeholds and a power of appointment over freeholds and copyholds, a devise of his freeholds and copyholds will pass only the copyholds and not the freeholds subject to the power. Lewis v. Llewellyn, T. & R. 104; Napier v. Napier, 1 Sim. 28. But a gift of real and personal estate where the testator has no real estate, but has a power of appointing real and personal estate, will pass both the real and personal estate subject to the power. Standen v. Standen, 2 Ves. jun. 589; 6 B. P. C. 193. Where a testator has power to devise lands, and at the same time to appoint a sum charged upon the land, a general devise, whether before or since the Wills. Act, will not operate as an appointment of the sum so charged. Clifford v. Clifford, 9 Ha. 675. These rules are not applicable to personalty, since, As regards personalty. though the testator might not at the time of the bequest have possessed any property but that subject to the power which could have passed under the bequest, it would have been effectual with regard to after-acquired property. Therefore, if there is at the testator's death any property upon which the words of general gift can take effect, the power will not be executed. Jones v. Curry, 1 Sw. 66 ; Langham v. Nenny, 3 Ves. 467; Croft v. Slee, 4 Ves. 60 ; Bradley v. Westcott, 13 Ves. 445; Buckland v. Barton, 2 H. Bl. 136; Jones v. Tucker, 2 Mer. 533. death the testator has no pro perty but It is also said that even if there be at the testator's death If at his no other property upon which the general words can operate, the power will nevertheless not be executed. In all the cases, however, cited in support of this proposition, there that subject to the was some property besides that subject to the power. See power. supra. In Jones v. Tucker, supra, which goes nearest to the point, there were apparently arrears of rent due to the testatrix at the time of her death; and see Humphery v. Humphery, W. N. 1877, 44; 36 L. T. N. S. 90. On the other hand, a power vested in a married woman has been held to be executed by a general gift in her will Power vested in a married woman. In wills before the Wills Act, when there was nothing else at her death upon which the gift could operate (see post), and there seems to be no apparent reason why married women should in this respect differ from other persons. With regard to realty, it is clear that where a married woman has a power to appoint realty, a general devise of her real and personal property will pass the estate subject to the power, there being nothing else upon which the devise can operate. Curteis v. Kenrick, 3 M. & W. 461; 9 Sim. 443; Churchill v. Dibbin, 9 Sim. 447 n. Where the property subject to the power is personalty, the cases go to this: 1. Where a married woman has a power of appointment, and no other property at the date of the will, but at her death there is some separate estate upon which the will can operate, a general gift will not execute the power. Lovell v. Knight, 2 Sim. 275, affirmed on appeal. Lemprière v. Valpy, 5 Sim. 108; Evans v. Evans, 23 B. 1. 2. But if at her death there is nothing upon which the will can take effect, the power will be executed. Shelford v. Acland, 23 B. 10, where, however, the will was since the Wills Act. A.-G. v. Wilinson, L. R. 2 Eq. 816. But qu. whether this would be the case with the will of a testator; see supra. With regard to personalty, therefore, as also to realty, where the case is not within the exception above menand in all tioned, in wills before the Wills Act, in order to execute a cases of special general power, there must be a reference either to the there must power or to the property subject to the power. powers, be a refer- And the same is the case with special powers, whether ence to the power or to before or since the Wills Act. Wildbore v. Gregory, 12 the pro perty sub- Eq. 482; Harvey v. Harvey, 23 W. R. 478. ject to the power. Where the power is referred to and only a portion of the fund subject to the power is specifically given, the rest will pass under a general gift of the residue. Re Comber's Trust, 14 W. R. 172. 1. What is a sufficient reference to a power. What is a sufficient to a A ratification of the trusts of the settlement creating reference a power is no evidence of an intention to execute the power. Re Bingloe's Trust, 26 L. T. N. S. 58. A recital that a person is entitled to certain funds, over which the testator has a power of appointment, will not amount to an execution of the power in favour of that person. Pennefuther v. Pennefather, I. R. 7 Eq. 300; see Lees v. Lees, I. R. 5 Eq. 549; see In re Walsh's Trusts, 1 L. R. Ir. 320. A reference to a power as contained in a settlement of 1819, when the power was, in fact, contained in a resettlement of 1839, has been held a sufficient reference. Re Wilmot, 9 B. 644. powers. Probably words referring to property over which the General testator has any "disposing power," would be sufficient to execute a general power of appointment. See Thornton v. Thornton, 20 Eq. 599; Cooke v. Cunliffe, 17 Q. B. 245. powers. If the power is a special power, where there are Special words large enough to include everything belonging to the testator, the additional words, "or over which I have any power of disposition or control," may be referred to a special power if all the objects of the power are included in the gift, though the interest given may be larger than the power justifies, or though persons not objects of the power may be included as well. Pidgely v. Pidgely, 1 Coll. 255; In re Teape's Trusts, 16 Eq. 442; see Bruce v. Bruce, 11 Eq. 371; Bulteel v. Plummer, 6 Ch. 160. created This, however, does not apply to a power created after Power the date of the will, though the will may be subsequently after the republished. Hope v. Hope, 5 Giff. 13. A devise of property over which the testator has any "beneficial" power will not execute a special power if the date of the will. "Bene ficial' power. Use of the words "my devise is in excess of the power. Ames v. Cadogan, 12 Ch. D. 868. When there is a reference to the power either in direct property." terms or because there is nothing else to which the testator's words can apply, the fact that the property is described as "my property" will not exclude the property subject to the power from passing. Harvey v. Stracey, 1 Dr. 73, 115; Bailey v. Lloyd, 5 Russ. 330. Effect of a charge of debts. Gift of property over Nor will the fact that the bequest is made subject to the testator's debts, though the power may be a special power, where there is other property to which the charge of debts can apply. Bailey v. Lloyd, 5 Russ. 330; Cowx v. Foster, 1 J. & H. 30; Ferrier v. Jay, 10 Eq. 550; In re Teape's Trusts, 16 Eq. 442. Clogstoun v. Walcott, 13 Sim. 523, is no longer law. Whether a gift of property "over which I have any disposing power" without more will include property over which the testator has a special power of appointment disposing seems doubtful. which I have any power." Gift of legacies to charged It will not if there is an intention not to execute the power. Cooke v. Cunliffe, 17 Q. B. 245. In Thornton v. Thornton, 20 Eq. 599, a gift of "all my property over which I have any disposing power" to the testator's wife for life and then to his children, and in default of children to his wife's brothers and sisters, was held, reddendo singula singulis, to execute two powers of appointment-one in favour of the testator's wife, the other of his children. And where under a non-exclusive power exercised prior objects of to the passing of the statute, 37 & 38 Vict. c. 37, the the power testatrix gave legacies to three of the objects of the power, and then gave all the residue of her property of ject to the whatever kind, and over which she had any power of appointment, to the other objects of the power, the power was held well executed, the legacies to the objects of the upon the fund sub power. |