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will pass under a general gift of the residue. Re Comber's
What is a
sufficient 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. Pennefather 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. Probably words referring to property over which the General
powers. 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. If the power is a special power, where there are Special
. words large enough to include everything belonging to the powers. 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. This, however, does not apply to a power created after Power,
created 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 “ Bene“ beneficial” power will not execute a special power if the
date of the will.
over which I
devise is in excess of the power. Ames v. Cadogan, 12
Ch. D. 868. Use of the When there is a reference to the power either in direct words "my property.” terms or because there is nothing else to which the tes
tator'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,
i Dr. 73, 115; Bailey v. Lloyd, 5 Russ. 330. Effect of a Nor will the fact that the bequest is made subject to charge of
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; Coux v. Foster, 1 J. & H. 30; Ferrier v. Jay, 10 Eq. 550; In ve Teape's Trusts, 16 Eq. 442. Clogstoun v. Walcott, 13
Sim. 523, is no longer law. Gift of Whether a gift of property "over which I have any property
disposing power" without more will include property over
which the testator has a special power of appointment disposing seems doubtful. power.”
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. Gift of And where under a non-exclusive power exercised prior legacies to 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 charged
power, and then gave all the residue of her property of
, fund subject to the whatever kind, and over which she had any power of ap
pointment, to the other objects of the power, the power was held well executed, the legacies to the objects of the
be a refer
power being charged on the residue.' Gainsford v. Dunn, 17 Eq. 405.
So, too, where legacies are given to the objects of a power and the fund is then appointed to a person not an object of the power, subject to the legacies, the gift of the legacies operates as an appointment pro tanto. Disney v. Crosse, L. R. 2 Eq. 592.
2. Or again, a gift of the property subject to the power Reference without reference to the power is sufficient to show an
subject to intention to execute the power.
But there must be no doubt on the face of the will that There must the testator is referring to some specific fund in exist-ence to a
a ence at the time of making the will.
specific Therefore, the fact that property of the same kind as that subject to the power is given merely in general terms -as, for instance, some particular kind of stock—will not execute the power, since the gift would be satisfied by purchasing the stock in question. Webb v. Honnor, 1 J. & W. 352; Mattingley's Trusts, 2 J. & H. 427.
Nor will the fact that legacies are given equal in amount to the fund subject to the power. Jones v. Tucker, 2 Mer. 533; Davies v. Thorns, 3 De G. & S. 347; Forbes v. Ball, 3 Mer. 437, is explained in Davies v. Thorns.
Nor that legacies are given largely in excess of the testator's estate, unless the property subject to the power is included in it. Lowe v. Pennington, 10 L. J.
v Ch. 83.
The bequest of certain specific articles subject to the power will not be sufficient to make the rest of the property subject to the power pass by general words. Hughes v. Turner, 3 M. & K. 666.
On the other hand where the testator uses words showing that he is disposing of a specific fund, the power will be executed. Lowndes v. Lowndes, 1 Y. & J. 445 ; Sayer v. Sayer, 7 Ha. 381; 3 Mac. & G. 607; Rooke v. Rooke, 2
Dr. & S. 38; David's Trusts, Johns. 495; Gratwicke's
And this is the case though some of the persons in whose favour the power is exercised are incapable of taking. Gratwicke's Trusts, supra; Bruce v. Bruce, 11 Eq. 371.
Where a specific fund is referred to, the fact that the fund subject to the power is misdescribed, or that the donee purports to appoint under a different power, makes no difference. Mackinley v. Sison, 8 Sim. 561; Bruce v. Bruce, 11 Eq. 371.
In the same way, where a portion of the property subject to the power is excepted out of a general gift, the rest of the property subject to the power passes. Walter v. Mackie, 4 Russ. 76; Reid v. Reid, 25 B. 469.
Where the power was a special power and the testator gave legacies out of the funds subject to the power, and then gave the residue of his property "after payment of the legacies” to the objects of the power, the residue was held to include the property subject to the power. Elliott v. Elliott, 15 Sim. 321.
But a mere gift of the “residue of my personal estate and effects” to an object of the power would not have this effect. Butler v. Gray, 5 Ch. 26.
An express disposition of property settled subject to a power of revocation and new appointment may have the effect of exercising the power of revocation. Quin v.
Armstrong, I. R. 11 Eq. 161. Effect of Section 27 of the Wills Act enacts that a general devise
of the real estate of the testator, or of the real estate of Wills Act the testator in any place or in the occupation of any on general
person mentioned in his will or otherwise described in a general manner, shall be construed to include any real estate or any real estate to which such description shall extend (as the case may be) which he may have power to
the 27th sect. of the
appoint, in any manner he may think proper, unless a contrary intention shall appear by the will.
A general devise or bequest will not, under this section, Power of execute a power of revocation and new appointment. Pomfret v. Perring, 18 B. 618; 5 D. M. & G. 775 ; Palmer v. Newell, 20 B. 32. A power to appoint by will only is a general power Testamen
tary power, within the section. Re Powell's Trust, 18 W. R. 228 ; 39 L. J. Ch. 188.
Special powers are of course not within the section. Special Wildbore v. Gregory, 12 Eq. 482; Humphery v. Humphery, 36 L. T. N. S. 90.
The fact that the power is contained in a settlement made by the testator before the date of his will raises no presumption that the will was not intended to execute the power. In re Clark's Estate; Maddick v. Marks, 14 Ch. D. 422. A contrary intention is not indicated by an express Contrary
intention. confirmation of the trusts of the instrument creating the power, where there is anything to which such confirmation can apply; as, for instance, other settled property or prior trusts of the property over which the testator has the power, though the property may be disposed of in default of appointment. Lake v. Currie, 2 D. M. & G. 536; Hutchin v. Osborne, 4 K. & J. 252 ; 3 De G. & J. 142.
Nor by the fact that a life interest is given to a person when, if that person survives the testator, the power will be gone. Thomas v. Jones, 2 J. & H. 475; 1 D. J. & S. 63.
But it has been held that a gift of property“ not otherwise disposed of” does not execute a power where the property subject to the power is disposed of in default of appointment. Moss v. Harter, 3 Sm. & G. 458, sed qu.; see Bush v. Cowan, 9 Jur. N. S. 429; 11 W. R.