Execution of But the execution of powers of appointment by Powers. will has been placed upon a better footing by the Wills Act, 1 Vict. c. 26, s. 10, which enacts, Wills Act, appointments by will to be executed like other wills. Stat. 22 & 23 "That no appointment made by will, in exercise of any power, shall be valid unless the same be executed in manner herein before required (e); and every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required (ƒ) that a will, made in exercise of such power, should be executed with some additional or other form of execution or solemnity." By the stat. 22 & 23 Vict. c. 35, it is enacted that : Sect. 12. "A deed hereafter executed in the presence of and attested by two or more witnesses in the manner in which deeds are ordinarily executed and attested shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or other form of execution or attestation or solemnity: provided always, that this provision shall not operate to defeat any direction in the instrument creating the power, that the consent of any particular person shall be necessary to a valid execution, or that any act shall be performed in order to give validity to any appointment, having no relation to the mode of executing and attesting the instrument; and nothing herein contained shall prevent the donee of a power from executing it conformably to the power by writing or otherwise than by an instrument executed and attested as an ordinary deed, and to any such execution of a power this provision shall not extend." (e) By sect. 9 all wills are to be executed ". . . by the testator or by some other person in his presence and by his direction; and such signatures shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator; but no form of attestation shall be necessary." (f) Notwithstanding the use of the words "shall have been expressly required," this provision applies to powers created since, as well as to powers created before, the Act: Hubbard v. Lees, L. R., 1 Ex. 255. Powers. A signature may be by mark; Blockhill v. Ascott, Execution of 2 Eq. Ab. 659; or by stamping or printing: Lemaine v. Staneley, 3 Lev. 1; 1 Freem. 538; Saun- Signature by derson v. Jackson, 2 Bos. & P. 239. mark, &c. observe so But no further solemnities are required than such Sufficient to as fall strictly within the words of the power. lemnities preTherefore, a requisition that the instrument shall be scribed. executed in the presence of witnesses, is satisfied by an instrument so executed, although the witnesses sign no attestation: Sayle v. Freeland, 1 Eq. Ab. 345; 2 Vent. 350. And it does not seem to be requisite that the witnesses, when they are required to attest the appointment, should attest it at the same time. See Ellis v. Smith, 1 Ves. jun. 11; Simeon v. Simeon, 4 Sim. 555. A power to appoint by writing, signed and sealed, may be exercised by an instrument signed and sealed, but not delivered: Carter v. Carter, Mosel. 369. And in an old case it was held that if a deed " duly attested" is required, one witness is sufficient: Poulson v. Wellington, 2 P. Wms. 533. And where a power was given to appoint leaseholds by will, duly executed and attested, it was held that there must be an attestation, though one was sufficient: Sanders v. Franks, 2 Madd. 147. But what shall be a "due " attestation or execution will depend on the nature of the instrument, and the subject-matter of the appointment; and therefore, though a power to appoint real estate by a revocable unattested instrument is good (see 22 & 23 Vict. c. 35, s. 12, above, p. 740), yet a power to Attestation appoint, whether by will simply, or by any writing ment by will. in the nature of a will, can only be exercised by such a will as is valid under the Wills Act. See Longford v. Eyre, 1 P. Wms. 740; Casson v. Dade, 1 Br. C. C. 99; Duff v. Dalzel, Id. 147; Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. at p. 76; Wagstaff v. Wagstaff, 2 P. Wms. 258; Jones v. Clough, 2 Ves. sen. 365; Belt's Supp. 360; Wilkes v. Holmes, 9 Mod. 485; Willan v. Lancaster, 3 Russ. 108. It seems to have been thought by Lord Gifford, M. R., and decided by Sir J. Copley, M. R., that a power to dispose of customary lands by will legally executed," could not be exercised by a will of appoint Powers. Execution of not executed according to the Statute of Frauds. See Tufnell v. Page, 2 Atk. 37; Barn. 12; 2 P. Wms. 261, n.; Carey v. Askew, 1 Cox, 243. It is conceived that "due" or "legal" attestation of a deed would mean attestation in conformity with the formalities specified in stat. 22 & 23 Vict. c. 35, s. 12. NATURE OF MENT-deed, or will. Testamentary Nature of the Instrument.]—A power at common law to execute by any deed or deeds, with or without power of revocation, signed and scaled in the presence of and attested by two witnesses, was held not to have been executed by a will, sealed and duly executed and attested: Earl of Darlington v. Pulteney, Cowp. 260. So, a joint power to husband and wife to appoint by deed was held ill-executed by the husband's will, with an indorsement of the wife's approbation made by her on it after his death; and it would have been no better had the wife ratified it at the time it was made: Bushell v. Bushell, 1 Sch. & Lef. at p. 96. See Hulton v. Simpson, 2 Vern. 723; Gilb. Ex. 115; Pr. Ch. 439. In Darlington v. Pulteney, Lord Mansfield, C. J., cited a case, decided in the House of Lords on appeal from Ireland, of The Countess of Roscommon v. Fowkes, 6 Br. P. C. 158, where a power to appoint by any writing signed, sealed, and attested," and by the same or any other deed to grant," &c., was held well executed by a will. See Ross v. Ewer, 3 Atk. 156. Of course, where the word "deed" does not occur to raise a difficulty, a power to appoint by any writing signed, sealed, and delivered in the presence of witnesses, may be executed by will: Doe d. Delegal v. Holloway, 1 Stark. 431. See Edwards v. Edwards, 3 Madd. 197. The will must, however, be sealed: West v. Ray, Kay, 385; S. C., 23 L. J., Ch. 447; see also Collard v. Sampson, 4 De G., M. & G. 224; Moss v. Harter, 2 Sm. & Giff. 458 (g). (g) A testamentary instrument signed, but not duly attested appointment as required by the law of this country, is not a good execution by a person domiciled in England of a power to appoint by any writing signed, or by will: Re Daly's Settlement, 25 Beav. 456; not affected by domicil. Powers. ried women. In the case of Sockett v. Wray, 4 Br. C. C. 483, a fund Execution of was limited in trust for the separate use of a married woman for life, and after her decease to transfer the Powerto mar. capital to such persons, &c. as she alone, whether sole or covert, should by will appoint: and it was held that, during her coverture, she could not dispose of the capital by deed; though Lord Alvanley, M. R., seemed to think that, if her coverture ceased, she might do so as to which see Reid v. Shergold, 10 Ves. 370, contra. In Lynn v. Ashton, 1 Russ. & M. 188, where a feme coverte had a separate life estate in a fund, with a power to appoint the capital by deed or will, to take effect after her death, was held to have the absolute and immediate dominion over the whole. So, where a life interest was bequeathed with a general power to appoint by will or otherwise, it was held that the legatee might claim the entire fund, and that her bill filed for payment was sufficient without any formal appointment: Irwin v. Farrar, 19 Ves. 86; and these decisions have been confirmed by Lempriere's case, L. R., 4 P. C. 572. A limitation to the heirs of A., "or as she might choose to will it," was held ill-executed by a deed of disposition executed in Scotland according to the form usual there instead of a will: Paul v. Hewitson, 2 Myl. & K. 434. But any writing which has received probate in an English Court of competent jurisdiction must be taken to be a will, and, if executed in manner required by the power, must in all courts be received as a proper instrument of appointment: Douglas v. Cooper, 3 Myl. & K. 378. But this rule does not extend to appointments of real estate, as to which probate is not necessary or conclusive evidence of the testamentary nature of the instrument: Hume v. Rundell, 6 Madd. 331. See S. C., 25 L. J., Ch. 751. But where a will of personalty purporting to be made under a power fulfils the requirements of the power, it will not be affected by the foreign domicil of the testator, as the donee takes under the instrument creating the power, which operates according to the law of the country where it was executed: In the Goods of Alexander, 1 Sw. & Tr. 454, n. ; S. C., 29 L. J., Prob. 93. Powers. As to revo cation of testamentary Execution of Ross v. Ewer, 3 Atk. 156; Shardelow v. Naylor, 1 Salk. 313; Watt v. Watt, 3 Ves. 244; Rich v. Cockell, 9 Ves. 369. The question in Douglas v. Cooper, ubi sup., was, whether a will made during coverture in exercise of appointments a power was not revoked by a second marriage of by marriage. the appointor, and it was finally held in the Ecclesiastical Court that it was not. Generally a testamentary appointment would be revoked by subsequent marriage if a devise or bequest would have been revoked under similar circumstances: Hodsden v. Lloyd, 2 Br. C. C. 534. And now every testamentary appointment made by a man or woman is revoked by marriage, "except a will made in exercise of a power of appointment where the real or personal estate thereby appointed would not in default of appointment pass to his or her heir, customary heir, executor, or administrator, or the persons entitled as his or her next of kin under the Statute of Distributions:" Wills Act, 1 Vict. c. 26, s. 18. OPERATION OF Another illustration of the rule, that a power must be strictly executed, is afforded by the doctrine of the case of Cockerell v. Cholmeley, 3 Russ. 565, where a tenant for life without impeachment of waste, and a trustee with power of sale, joined in a sale of lands, the tenant for life selling the timber and receiving the purchase-money for it, and the trustee selling the land, minus the value of the timber; it was held, that as the timber had not been severed, the power was ill-exercised. But this has now been altered by 22 & 23 Vict. c. 35, s. 13, which gives the Court power on summary application to declare that the sale ought to be established on certain conditions (h). Operation of Appointment.]-It is sometimes important, where a power of appointment is given to the person who has the ownership in default of appointment, to know whether a disposition by such person takes effect under his ownership or under the (h) See further, on the question of remedying the defective exercise of powers by the aid of the Court, Sugd. Pow. pp. 533 seq.; Farwell, Pow. 259. |