terest, and it is intended to exercise the power, and also convey the interest, the appointment is almost invariably made by a distinct witnessing part, which` precedes the release. The deviation from the usual form in the present case is evidence that it was not the primary intention of the parties to exercise the power.

To the foregoing reasons another may be added which seems more conclusive. By the conveyance it is evident that the parties wished to prevent a right of dower attaching in their wives, and at the same time to keep the inheritance in themselves. This intention would have been effected by construing the instruments as a conveyance of Watts's interest, and appears to have been defeated by the construction adopted. For as the deeds were holden to operate as an execution of the power, the habendum to the purchasers and their trustees vested the fee in them, and the subsequent limitation to the purchasers and the trustee, and the heirs and assigns of the purchasers, was void at law, as an use upon an use, and was good only as a trust in equity.

Where a person having a particular estate and also a power, makes a disposition containing words both of appointment and conveyance, yet it shall not operate as an appointment, and also as a conveyance against the intention of the party executing the instrument. Thus, in Langley and Brown (g), under a settlement previously to an intended marriage, the estate was limited to the intended wife for life, then to her in tail, remainder to her appointment generally, in default of appointment to her in fee. She before marriage, by an instrument in pursuance of her power, did appoint, limit, give and

grant the estate and the reversion thereof expectant upon her death, to her intended husband in fee, who was in possession, chargeable with monies to be paid after her decease. Lord Hardwicke appears to have considered that the instrument might have operated both as an appointment of the remainder and as a release of her estate, so as to create a base fee, the grantee being in possession; but he ruled otherwise, as the grant was intended only to take effect after her death, and not to pass any estate in possession.

SECT.

SECTION VII.

OF THE QUALIFICATIONS WHICH MAY BE ANNEXED TO THE EXECUTION OF POWERS BY THE DONEES THEREOF.

A DONI

DONEE of a power may limit the event upon which the deed executing the power shall take place. Therefore, if a power be given to be executed by deed, inrolled in any court, the donce may direct the deed executing the power to be inrolled in some particular court, and until it is so inrolled, the execution of the power will be imperfect (h). So, if he declare that when A doth pay 10s. the settlement shall be revoked, there it is not singly the deed nor payment, but both that complete the revocation (i). And in like manner he may covenant to levy a fine, or suffer a recovery, with an intent to revoke the power; and although neither of them is necessary, yet the power will not be well executed till the fine is levied, or the recovery is suffered (k). Hobart, Chief Justice, even laid it down, that a verbal declaration that the execution of the power shall not take effect till a particular time, is good (1); which, it should seem, may be supported on the same principle that deeds in general inay be delivered as escrows.

Under a power of appointment, the donee may either appoint absolutely, or may reserve a power of revocation, although not expressly authorized to do so by the

(h) Digges's case, 1 Rep. 173. (i) 3 Keb. 511; Raym. 239.

(k) Earl of Leicester's case, 1 Ventr. 278.

(1) Kibbet v. Lee, Hob. 312.

R 2

deed

deed creating the power (m), and such a power may be reserved toties quoties (n), and the new power of revo cation need not be attended with the same solemnities as the first power (o).

And where a power is given to two persons, or the survivor of them, with or without power of revocation, they may execute a joint appointment, and reserve a power to the survivor to revoke. The argument against the validity of the power of revocation to the survivor was, that the parties could not intend that a joint appointment should be defeated by any but a joint revocation (p).

But it seems that where a power is given to two jointly, and not to the survivor of them, they cannot upon a joint appointment reserve a power of revocation to the survivor. Upon this principle, Lord Redesdale held, that under a power to husband and wife, a will by the husband, indorsed by the wife after his death, expressive of her approbation of the disposition thereby made, and her confirination of it, would not do: aud he said that being a will revocable by the husband at any time, even if the wife had at the moment subscribed a ratification of it, he could not conceive it to be an appointment under the power, because it would reserve a power of revocation to one of the two parties, as the husband might revoke his will, but his wife could not (9).

442, 7 Ves. jun, 382. (q) Bushell v. Bushell, 1 Rep. T. Redesdale, 90.

(m) Adams v. Adams, Cowp. 651; (p) Brudenell v. Elwes, 1 East
see Becket's case infra.
(n) Lady Hasting's case, 3 Keb.7.
(0) Winstandley's case, 3 Keb. 7,
cited; and see S. C. cited, 2
Keb. 270.

A will is always revocable, and, therefore, where the power is executed by will, an express power of revocation need not be reserved (r). But where the power is executed by deed, unless a power of revocation is reserved in the deed, the appointment cannot be revoked (s); no, not even if the original power expressly authorize the donee in the most unlimited terms, to appoint and to revoke his appointments from time to time; as the law will not endure a prospective power like this, but on every execution, a new power of revocation must be reserved. This was solemnly decided by Lord Chancellor Harcourt, and all the Judges of England (t), and finally in the House of Lords. The Court of King's Bench, upon a case referred to them by the Lord Chancellor, held the second execution void. Lord Harcourt decreed accordingly; and upon an appeal to the House of Lords, the decree was affirmed by the unanimous opinion of the Judges of the Court of Common Pleas and Court of Exchequer.

This decision appears to have owed its foundation to the anxiety of the courts, to restrain the reservation of such powers, and to the assimilation of powers to conditions at common law, which they do not resemble. It is impossible to frame any objection upon principle, to a general power of revocation in the first deed, embracing all future executions: the power is only tantamount to what may still be done, by repeatedly reserving new powers of revocation.

(r) Vide infra, sect. 8.

(s) Hatcher v. Curtis, 2 Freem.

61.

(t) Hele v. Bond, Prec. Cha. 474;

Eq. Ca. Abr. 342; S. C. MS. See a fuiler note of this case than any in print, App. No. 3.