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acting otherwise in the case of a non-execution of a power would in effect deprive the party of all discretion as to the exercise of it, and would thus overthrow the very intention manifested by

never consented to bear it. The chance that it may never be executed, or that it may not be executed in the manner prescribed, is an advantage he secures to himself by the agreement, and which no one has a right to take from him. In this respect there is no difference between a non-execution and a defective execution of a power. By the compact the estate ought not to be charged in either case. It is difficult therefore to discover a sound principle for the authority, this court assumes, for aiding a defective execution in certain cases. If the intention of the party possessing the power is to be regarded, and not the interest of the party to be affected by the execution, that intention ought to be executed wherever it is manifested; for the owner of the estate has nothing to do with the purpose. To him it is indifferent whether it is to be exercised for a creditor or a volunteer. But if the interest of the party to be affected by the execution is to be regarded, why in any case exercise the power, except in the form and manner prescribed? He is an absolute stranger to the equity between the possessor of the power and the party in whose favor it is intended to be executed. As against the debtor, it is right that he should pay. But what equity is there for the creditor to have the money raised out of the estate of a third person, in a case in which it was never agreed that it should be raised? The owner is not heard to say it will be a grievous burthen, and of no merit or utility. He is told the case provided for exists; it is formally right; he has nothing to do with the purpose. But upon a defect which this court is called upon to supply, he is not permitted to retort this argument, and to say it is not formally right: the case provided for does not exist; and he has nothing to do with the purpose. In the sort of equity upon this subject there is some want of equality. But the rule is perfectly settled; and though perhaps with some violation of principle, with no practical inconvenience.'

There is much strength in this reasoning; but after all it is open to some question. The party possessing the power intends to execute it; he proceeds to do an act which he supposes to be a perfect act of execution. He possesses the right to do it in a formal manner; he has failed, by mistake, against his intention. But the objects in whose favor it is to be executed possess a high moral and equitable claim for its execution. Under such circumstances why should a mere mistake, contrary to the intention, defeat the bounty or the justice of the possessor of the power? If the case were one of an absolute property in the party, a Court of Equity would not fail to correct the mistake in favor of persons having such merits. Why should it hesitate when the possessor of the power has done an act intended to reduce it to the case of absolute property? There is no countervailing equity in such a case in favor of the other side. The case stands dryly upon a mere point of strict law. The difficulty in the argument is, that it deals with the power as a mere naked authority to act, without considering that when the party elects to act, an interest attaches to him in the execution of the power; and that the election thus made is defeated, and the interest thus created fails, by mere mistake, from the defective execution, against parties, standing on a strong equity, and in favor of others having none. See 1 Fonbl. Eq. B. 1, ch. 4, § 25.

the parties in the creation of the power. On the contrary when the party undertakes to execute a power, but by mistake does it imperfectly, equity will interpose to carry his very intention. into effect, and that too in aid of those who are peculiarly within its protective favor; that is, creditors, purchasers, wives, and children.1 (a)

171. What shall constitute an execution or preparatory steps or attempts towards the execution of a power entitling the party to relief in equity on the ground of a defective execution, has been largely and liberally interpreted. It is clear that it is not sufficient that there should be a mere floating and indefinite intention to execute the power, (b) without some steps taken to give it a legal effect.2 Some steps must be taken or some acts done with this sole and definite intention, and be such as are properly referable to the power.3 (c) Lord Mansfield at one time contended that whatever is an equitable ought to be deemed a legal execution of a power, because there should be a uniform rule of property; and that if Courts of Equity would presume that a strict adherence to the precise form pointed out in the creation of the power was not intended, and therefore not necessary, the same rule should prevail at law. But this doctrine has been overruled. And indeed Courts of Equity do not deem the power well executed unless the form is adhered to; but in cases of a meritorious consideration they supply the defect.5

1 Moody v. Reid, 1 Madd. R. 516; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 3, pp. 369, 370, 371, 372, 375; Darlington v. Pulteney, Cowp. 266, 267; Ellis v. Nimmo, Lloyd & Gould's Rep. 348. There seems a distinction in this respect between cases of the defective execution of powers and cases of voluntary contracts, covenants and settlements, of which specific performance is sought. See Jefferys v. Jefferys, 1 Craig & Phillips, 138, 141; Post, § 433, note; §§ 706, 706 a, 787, 793 b, 973, 987, 1040 b.

2 See 2 Chance on Powers, ch. 23, § 3, art. 3005, 3011.

8 See Sugden on Powers, ch. 6, § 2.

4 Darlington v. Pulteney, Cowp. R. 267.

5 Sugden on Powers, ch. 6, § 1, p. 344; Id. § 359; Id. 361 to 370.

Garth v.

power must be distinct.
Townsend, L. R. 7 Eq. 220.

(c) See Mitchell v. Denson, 29 Ala.
327. A contract to sell is sufficient
to indicate an intention to execute a
power of sale. In re Dyke's Estate,

(a) Equity reformed the execution of a power by inserting a hotchpot clause, in Wilkinson v. Nelson, 7 Jur. N. s. 480. Concerning volunteers under deeds, see note to § 140, at p. 152. (b) The intention to execute the L. R. 7 Eq. 337.

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172. And relief will be granted not only when the defect arises from an informal instrument not within the scope of the power, but also when the defect arises from the improper execution of the appropriate instrument. All that is necessary is, that the intention to execute the power should clearly appear in writing. Thus if the donee of a power merely covenant to execute it, or by his will desire the remainder-man to create the estate, or enter into a contract not under seal to execute the power, or by letters promise to grant an estate which he can execute only by the instrumentality of the power, in all these and the like cases equity will supply the defect.1 And even an answer to a bill in equity stating that the party does appoint and intends by a writing in due form to appoint the fund, will be an execution of the power for this purpose.2

173. The like rule prevails where the instrument selected is not that prescribed by the power, provided it is not in its own nature repugnant to the true object of the creation of the power. Thus if the power ought to be executed by a deed, but it is executed by a will, the defective execution will be aided. But if the power ought to be executed by a will, and the donee of the power should execute a conveyance of the estate by an absolute deed, it will be invalid; because such a conveyance, if it avail to any purpose, must avail to the immediate destruction of the power, since it would no longer be revocable as a will would be. The intention of the power in its creation was to reserve an entire control over its execution until the moment of the death of the donee; and this intention would be defeated by any other instrument than a will. An act done not strictly according to the terms of the power, but consistent with its intent, may be upheld in equity; but an act which violates the very purpose for which the power was created, and the very control over it which it meant to vest in the donee, is repugnant to it, and cannot be deemed in any just sense to be an execution of it.5

1 Ibid.

2 Carter v. Carter, Moseley, R. 365.

8 Smith v. Ashton, 1 Freeman, R. 308; s. c. 1 Ch. Cas. 269; Sugden on Powers, ch. 6 (4th edit.), pp. 362 to 367; Follett v. Follett, 2 P. Will. 489; 2 Chance on Powers, ch. 23, § 1, pp. 507, 508; Id. 513 to 516; Com. Dig. Chancery, 4 H. 6.

Reid v. Shergold, 10 Ves. R. 378, 380.

5 See Bainbridge v. Smith, 8 Sim. R. 86; Ante, § 97.

174. But in other respects there is no difference between a defective execution of a power by a will and by a deed, for in each case the remedial interposition of equity will be applied. Thus if a power is required to be executed in the presence of three witnesses, and it is executed in the presence of two only, equity will interfere in such a case. So if the instrument, whether it be a deed or a will, is required to be signed and sealed, and it is without seal or signature, equity will relieve.1 (a) And where a power is required to be executed by a will by way of appointment, there the appointment will be aided, although the will is not duly executed according to the Statute of Frauds; for it takes effect not under the will, but under the instrument creating the power.2 Equity will also in many cases grant relief where by mistake a different kind of estate or interest is given from that which is authorized by the power, or where there is an excess of the power. (b)

1 Sugden on Powers, ch. 6 (4th edit.), pp. 369, 370; 2 Chance on Powers, ch. 23, pp. 507 to 510; Wade v. Paget, 1 Bro. Ch. R. 363.

2 Wilkes v. Holmes, 9 Mod. 487, 488; Shannon v. Bradstreet, 1 Sch. & Lefr. 60; Sugden on Powers, ch. 6 (4th edit.), pp. 362 to 367; 2 Chance on Powers, ch. 23, § 1, pp. 507, 508. But see Gilb. Lex Pretoria, p. 301; Duff v. Dalzell, 1 Bro. Ch. R. 147; Wagstaff v. Wagstaff, 2 P. Will. 259, 260; Longford v. Eyre, 1 P. Will. 741; Com Dig. Chancery, 4 H. 7. Where an attempt is made to execute a power by a will (the power authorizing an execution by will), and the will is left imperfect, the same reason does not seem to exist, as may in other cases, to carry it into effect; for it may have been thus left intentionally imperfect, from a change of purpose. Lord Eldon, in remarking upon the difficulties of some of the cases, has said: 'If, in the instance of a want of a surrender of copyhold estate, the circumstance of the devise being to a child is considered, the more natural conclusion is, that the testator, whatever his purpose was, going only so far towards it, and not proceeding to make it effectual, had dropped it. So the attempt to execute a power is no more than an intimation that the party means to execute it. But if all the requisite ceremonies have not been complied with, it cannot be supposed that the intention continued until his death.' Finch v. Finch, 15 Ves. 51.

3 Sugden on Powers, ch. 6, § 1, art. 2; Id. ch. 9, § 8, art. 2; 2 Chance on Powers, ch. 23, § 7, pp. 610, 613; Jeremy on Equity Jurisd. B. 3, Pt. 2, ch. 2, pp. 373, 374.

(a) See Bernards v. Stebbins, 109 U. S. 341, 349; ante, note, p. 157. But equity will not relieve in the case of a deed given by an attorney who has no power under seal. That is a case of a defective power, not of a defective

execution of a power. Piatt v. McCullough, 1 McLean, 69.


(b) Where one had a power to appoint by his will or any writing in the nature of or purporting to be his will, or any codicil thereto,' and on

175. In all these cases it is to be understood that the intention and objects of the power are not defeated or put aside, but that they are only attempted by the party to be carried informally into effect. But where there is a defect of substance in the execution of the power, such as the want of co-operation of all the proper parties in the act, there equity will not aid the defect.1 (a)

176. But in all these cases of relief by aiding and correcting defects or mistakes in the execution of instruments and powers, the party asking relief must stand upon some equity superior to that of the party against whom he asks it. If the equities are equal, a Court of Equity is silent and passive.2 (6) Thus equity will not relieve one person claiming under a voluntary defective conveyance against another claiming also under a voluntary conveyance, but will leave the parties to their rights at law. (c)

1 See 2 Chance on Powers, ch. 23, § 2, pp. 540 to 543; Com. Dig. Chancery, 4 H. 7.

2 See Sugden on Powers, ch. 6 (4th edit.), pp. 353, 358; 2 Chance on Powers, ch. 23, § 1, pp. 502, 504, 507.

8 1 Fonbl. Eq. B. 1, ch. 1, § 7, and notes; Id. ch. 4, § 25, and notes; Id. ch. 5, § 2, and notes; Goodwin v. Goodwin, 1 Rep. Chan. 92 [173]; Mitf. Eq. Pl. by Jeremy, 274; Moody v. Reid, 1 Madd. R. 516; 1 Madd. Eq. Pr. 45, 46,

his death the third and fourth sheets of a will were alone discovered, these being in his hand and signed by him with the attestation of two witnesses, and one of the sheets contained a perfect appointment, it was held in equity, after refusal of probate, that this could not be regarded as a valid execution of the power. Gullan v. Grove, 26 Beav. 64. See Pomfret v. Perring, 5 DeG. M. & G. 775. In another case it appeared that the testator had in the will given his wife several powers of appointment; one by deed or will, and others by deed or deeds, instrument or instruments, in writing, sealed and delivered.' The donee executed a deed of appointment reciting only the power by deed or deeds,' &c., which included only that particular estate; and it was held that this estate was well appointed, but that the appointment did not extend to any others.


And the same person having afterwards by will appointed the same estate, it was held not to revoke the first appointment by deed, but to be wholly inoperative. Cooper v. Martin, 12 Jur. N. s. 887; s. c. L. R. 3 Ch. 47.

(a) See however Thorp v. McCallum, 1 Gilman, 614. So where the power is improperly exercised. Buckley v. Howell, 29 Beav. 546. As where the time for exercising it, being of the essence of the power, has elapsed. Cooper v. Martin, L. R. 3 Ch. 47. Ceremonials intended for the protection of a married woman are essential. Thackwell v. Gardiner, 5 DeG. & S. 58.

(b) Anderson v. Tydings, 8 Md. 427; Smith v. Turrentine, 2 Jones, Eq. 253.

(c) Hunt v. Hunt, 20 Ohio St. 119; ante, pp. 151-153, note.

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