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. power. to property subject to power. 2. Or again, a gift of the property subject to the power Reference without reference to the power is sufficient to show an intention to execute the But there must be no doubt on the face of the will that There must the testator is referring to some specific fund in existence to a ence at the time of making the will. 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. 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 be a refer specific fund. Effect of the 27th 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. v. Mackie, 4 Russ. 76; Reid v. Reid, 25 B. 469. Walter 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. Section 27 of the Wills Act enacts that a general devise sect. of the 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 powers. person mentioned in his will or otherwise described in a on general 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 appoint, in any manner he may think proper, unless a contrary intention shall appear by the will. revocation. 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. tary power. A power to appoint by will only is a general power Testamenwithin the section. Re Powell's Trust, 18 W. R. 228; 39 L. J. Ch. 188. powers. 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. intention. A contrary intention is not indicated by an express Contrary 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. N powers. Effect of a By the same 27th section it is further enacted that in general bequest upon like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate or any personal estate to which such description shall extend (as the case may be) which he may have power to appoint, in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. Real estate sold. Effect upon a Under this section a residuary bequest has been held to execute a power over real estate which had been sold under powers of sale and reinvestment in land, but had not, at the death of the testatrix, been reinvested. Chandler v. Pocock, 15 Ch. D. 491. See In re Kingston's Estate, 5 L. R. Ir. 169. And where a testator appointed under a general power certain settled estates and made a general bequest of personal estate, over which he had any power of appointment, it was held that the proceeds of portions of the settled estate sold with his consent before the date of the will passed under the general bequest of personal estate. Gale v. Gale, 21 B. 349; Blake v. Blake, 15 Ch. D. 481. The section applies as well to a general residuary bequest as to a gift of a general pecuniary legacy. Spooner's Trust, 2 Sim. N. S. 129; Clifford v. Clifford, 9 Ha. 675; A.-G. v. Brackenbury, 1 H. & C. 782; Hawthorn v. Sheddon, 3 Sm. & G. 293; Shelford v. Acland, 23 B. 10; Re Wilkinson, 4 Ch. 587. A direction to executors to pay the testator's debts out general of his personal estate operates as an execution of a general direction power in favour of the executor. Wilday v. Barnett, 6 power of a to pay debts. Eq. 193. A simple direction to pay debts without the appointment of an executor would have the same effect. Laing v. Cowan, 24 B. 112. But the mere appointment of an executor would probably not be enough. Per Wickens, V.-C., In re Davies' Trusts, 13 Eq. 166. made now exercised by will made pre vious to in By the combined effect of sections 24 and 27, a general Power power may be exercised by a general gift in a will prior to the instrument creating the power, and it is settled that a general devise or bequest executes a general strument creating power contained in a settlement subsequently made by the power. testator, though the will thereby makes the whole settlement nugatory. Boyes v. Cook, 14 Ch. D. 53, overruling In re Ruding's Settlement, 14 Eq. 266. A subsequent power created by the testator will of course, d fortiori, be executed where the previous will expressly gives all property over which the testator has any power. Patch v. Shore, 2 Dr. & Sm. 589. Or where the will expressly refers to the property, which is afterwards settled by the testator, who reserves to himself a power. Stillman v. Weedon, 16 Sim. 26; Meredyth v. Meredyth, I. R. 5 Eq. 565; Cofield v. Pollard, 3 Jur. N. S. 1203. power. The same is the case where the power, though existing Contingent at the date of the will, is then only contingent, being given to the survivor of two persons of whom the testator is one. Thomas v. Jones, 2 J. & H. 475; 1 D. J. & S. 63. See pp. 72, 73, ante. Where the settlor and testator were the same person and the power was to be executed by a last will, and the testator made a will before and another after the creation of the power, the latter purporting to be his last will, it was held that the first will was not meant to be an execution of the power. Pettinger v. Ambler, L. R. 1 Eq. 510. created It does not appear to have been decided that a mere Power general gift will execute a power subsequently given to by third the testator by third persons, though it would seem to person. follow upon principle. |