revocation, reserved upon the execution of a former power no uses can be limited out of the old seisin, unless the deed creating such power of revocation also contain an express authority to limit new uses. This seems to depend upon the ground of the decision in Hele and Bond. But it is observable, that it is no where said that a power of revocation in the original settlement, is not tantamount to a power of revocation and limitation of new uses.

In the case of Smith and Wheeler (g), Twisden, Justice, said, that whoever hath a power of revocation, hath a power of limitation. In the case of Fowler and North (h), no decision was made, but Hale, Chief Justice, laid it down that a power of appointment might with power of revocation be executed toties quoties, and he said it was resolved before, upon as great a settlement as any subject in England had, without any power to limit new uses (1). Agreeably to this was my Lord Nottingham's judgment, when Lord Keeper (i), that a power of revocation in an original settlement, enabled the donee not only to revoke the old uses, but to limit new ones; and on a subsequent hearing he declared himself clearly of the same opinion (k).

(g) 22 Car. 2, 2 Mod. 40.

(h) 24 Car. 2, 3 Keb. 7.

(i) 26 Car. 2, Anon. 1 Cha. Ca.

241.

(k) See Colston v. Gardner, 2 Cha. Ca. 46.

(1) The same case is reported in 1 Ventr. 197, nom. Sir Samuel Jones v. The Countess of Manchester. Ventris appears to have mistaken the arguments at the bar, for the resolutions of the court, as will appear upon an attentive perusal of the reports.

It remains to state an anonymous case in Strange. The case was this: A suffered a recovery to the use of himself for life, remainder to three persons successively in tail, remainder to himself in fee, with power to revoke the three remainders in tail. He ac cordingly revoked them, and by the same deed declared new uses in favour of the plaintiffs, without any words of conveyance, covenant to stand seised, or consideration expressed. The court held, that the uses were not well raised, because the uses of the recovery were full before, and the power was only to revoke, and not to limit new uses (1).

This case does not appear to be in opposition to the decision of Lord Nottingham. It seems from the report, that A limited new uses out of the fee simple generally, and certainly it cannot be contended that he could affect his life estate or reversion, without an express power, as the power of revocation did not extend to those estates, but only to the remainder in tail. The question there must have been, not whether a power of revocation implied a power to limit new uses, but whether a power of revocation itself could be implied as to part of the estate in the land, to which it did not expressly relate. Besides, as he reserved a partial power of revocation, and would after the revocation become seised of the entire fee simple, and part of the fee could not be affected by a bare appointment, an intention appeared to reserve a power of revocation only, and not a power of limitation of new uses, which would not have answered the purposes of the settlement. This

(1) Anonymous, 1 Str. 584.

ease

case is very distinguishable from a general power of revocation, extending to all the limitations in the settle

ment.

And here we must be careful to distinguish the case of Atwaters and Birt (m). There it was declared, that upon the revocation the uses should cease, and the estate should remain to the use of the settlor and his heirs; and it was held, that after revocation he could not limit new uses out of the old seisin, as no one was seised to his use, and therefore no use could arise. No one can doubt the propriety of this determination: by the very terms of the settlement the scisin was exhausted in serving the use in fee, limited to the settlor, and consequently no use could be raised, except by an original conveyance. Whenever, therefore, it is declared, that the revocation the estate shall remain to the settlor in fee, it cannot be contended that he has a power to limit new uses.

upon

The result of the authorities appears to be,

1st, That in a deed executing a power, a power of revocation and new appointment may be reserved, although not expressly authorized by the deed creating the power (n). And that such powers may be reserved toties quoties (o).

2d, That where an appointment under a power is made by deed, it cannot be revoked unless an express power be reserved in the deed by which the power is executed: a revocation will not be authorized by a general prospective power in the deed creating the first power (p).

(m) Cro. Eliz. 856.

(n) Adams v. Adams, Cowp. 651;

see Digges's case, 1 Rep. 173 b. (0) Becket's case, Lane 118; Hele

and Bond, Pre. Cha. 474; App. No. 3; Digges's case, ubi sup. (p) Hele and Bond, Prec. Cha.474. 3d, That

3d, That although in the original settlement a power of revocation only be reserved, yet a power to limit new uses is implied, and may be executed accordingly (4), unless a contrary intention can be collected from the whole settlement (r), or the estate is expressly limited to other uses (s). But,

4th, That every power reserved in a deed executing a power will be strictly construed, and therefore a mere power of revocation in such a deed will not authorise a limitation of new uses (†).

It remains on this head to observe, that upon the authority of Wall and Thurborne (u) an opinion has prevailed, that a power of revocation cannot be annexed to a power simply collateral. The wife had a power under her husband's will to appoint an estate amongst her daughters, and she executed the power with power of revocation, but never actually revoked the settlement. The book says, "as to the power of revocation the case may be eased of that, for it was only an authority in the wife; and that being once executed, she could not reserve such power to herself." In the first place then it appears, that the point did not call for a decision, and it is very far from clear that the dictum was not the argument of the counsel. Such a doctrine would be very inconvenient, and certainly cannot be considered as settled.

We shall have occasion in another place to consider what conditions may be annexed to the estates limited under particular powers.

(4) Fowler v. North, 3 Keb. 7; (s) Atwaters v. Birt, Cro. Eliz.

Anon. 1 Cha. Ca. 242; Colston

v. Gardner, 2 Cha. Ca. 46. (r) Anon. Str. 584.

856.

(t) Ward v. Lenthal, 1 Sid. 343. (u) 1 Vern. 355.

SECT

SECTION VIIL

OF THE EFFECT OF THE EXECUTION OF A POWER.

I PROPOSE to treat first of the operation of the instrument executing the power; secondly, of the manner in which the estates created take effect in regard to themselves; and thirdly, the effect of the execution of the power on the estates in the settlement.

First, then, with regard to the instrument, in whatever mode the power is exercised, whether by an act inter vivos, as grant, bargain and sale, lease and release, covenant to stand seised, feoffment, and fine, or by a will, the instrument in every case operates strictly as an appointment or declaration of the use, and, therefore, by reason of the rule before noticed, that there cannot be an use on an use, the bargainee, &c. takes the legal estate, the appointment being made to him; and if any ulterior use is declared, it operates merely as a trust in equity. It is, however, apprehended, that if the power be executed by way of covenant to stand seised, the use would vest in the person intended to take beneficially, and not in the covenantec.

But a will made in execution of a power, has a peculiar operation, it not only operates as an execution of the power, but also in most respects partakes of the qualities of a proper will. We have seen, that if a power of revocation is not reserved in a deed executing the power, the instrument is irrevocable; but this does not hold good as to a will, for although in truth it is not strictly a will, but simply a declaration of use, yet it so far retains the properties of a

will