that he could not afterwards execute his power so as to over-reach the term; but this was over-ruled, "for the term was originally subject to the power being contained in the same deed, and he having exercised his power, the leases are precedent to the term, and controul it."

So, in another case, where the settlement was to A for life, remainder to such woman as he should marry for life, remainder to the first and other sons in tail, remainder to A in fee, with a power to him to charge portions for younger children, which he afterwards duly exercised it was prayed that the remainder only might be charged with the portion; but the court heid, that the power and the charge made pursuant thereto did affect the wife's estate for life as well as the remainder, and that it was like a power of leasing, which overreaches all the estates, for which reason they said it was usual to insert a proviso in such power of charging, that it shall not prejudice the jointure or other preceding estate (t).

Again, in the case of Mosley and Mosley (u), under a strict settlement by a father and his eldest son, terms of years were created to raise portions for the father's. younger children. And powers were given to the son, subject to his father's life estate, to direct portions to be raised for his younger children. These powers were executed, and the father's younger children insisted that their portions were a prior incumbrance, as they were created by the settlement which was executed long prior to the deeds executing the powers. But Lord Alvanley, then Master of the Rolls, held otherwise. He said, that the moment the power was executed it was as if in

(t) Beale v. Beale, 1 P. Wms. 244.

(u) 5 Ves. jun. 248.

the

the original deed, and in that way it would stand now. This power was subject to the father's life estate: therefore it must be taken as if made subsequent to the life estate of his father. As soon as he has executed that power the term created by it comes in immediately after the estate of the father before the other terms, but not before his life estate. The charge, therefore, is the first incumbrance upon the estate. Suppose the power was not for a provision for younger children, but to secure a jointure to his wife; according to the defendants that jointure would be postponed to his younger brother's fortunes. What pretence is there for that? The moment be raises the term it is put in after the life of his father to which the power is subject. He could not, he added, in point of conveyancing put it in any where else.

In a late case, where there was a strict settlement, the ultimate limitation was, to the use of the settlor in fee, "subject, nevertheless, and charged with the payment of 60001. as he should appoint." It was insisted by the bill, but not relied upon in argument, that the power only operated as a charge upon the ultimate reversion. The Master of the Rolls held, that upon the true construction the reservation of the right to charge must extend to the estate in all the limitations of it, and not be confined merely to the reversionary interest limited to himself, over which he would have a disposing power at all events (r).

II. Where several powers have been given by the same deed, and two or more of them are executed, the

(2) Stackhouse v. Barnston, 10 Ves. jun. 453; see Forster ham, 2 Str. 961, 2 Barn. R. R. 341, 429.

V. Gra

better

better opinion appears to be, that the uses limited under the powers will, in the absence of an express declaration to the contrary, take effect according to the priority of the execution of the powers by which they were respectively raised, although it is evident, that in most cases the intention of the settlement and the object of the powers must be the best guides to the construction. In the case of Yelland and Ficlis (y). Coke, Chief Justice, laid it down, that if one make a conveyance with a power to make leases and a power of revocation, if he make a lease (1) he may afterwards revoke for the residue. Indeed, it could not possibly be argued that the interest of a lessee, who is considered a purchaser pro tanto, would be defeated by the subsequent execution of another power by the lessor. So it would be impossible to contend, that a lease under a power could be defeated by the subsequent execution of a power in the same settlement of charging with portions, of jointuring, or even of sale and exchange. It were not easy to lay down any abstract proposition on this head, yet questions upon it seldom occur, which is attributable to the uni versal practice of conveyancers to express in a deed, by which several powers are created, to what uses and powers they shall severally be subject. The dictum in Moore is perhaps the only observation in the books on this point.

() Mo. 788.

(1) Viner, who inserts this dictum in his Abridgement, after this word "lease," adds the words [of part] between brackets. There is no pretence, however, for this interpolation.

CHAP.

CHAPTER VI.

OF EQUITABLE RELIEF IN FAVOUR OF DEFECTIVE EXECUTIONS OF POWERS.

SECTION I.

OF THIS RELIEF WHERE THERE IS A MERITORIOUS CONSIDERATION IN THE APPOINTEE.

We have before seen that powers took their rise be

E

fore the statute of uses, and were then sanctioned and protected by equity only, nor did equity suffer the statute to deprive it of this valuable branch of its jurisdic-, tion. At law, the omission of any circumstance required to the execution of a power, was deemed fatal; but equity, where there was a good or a valuable consideration, interposed its aid, and supported the defective cxccution of the power. Before the limits to this equitable relief were fully established, it was speciously argued, that although the circumstances required to a power must be observed at law, yet when a man hath a power over an estate, those circumstances are only a guard upon himself that be may not be surprised into a sudden disposition of it. But when deliberately and solemnly he hath done an act whereby he disposeth of this estate, but there wants some little ceremony or circumstance, such as the not tendering 12d. or the like, a court of equity

ought

ought to supply such a defect to support this solemn intention to dispose of it. For plain it is he is not surprised into this act, and so the reason for those circumstances fails, and they need not be strictly observed. But to this it was answered and resolved, that powers were similar to conditions at common law and as a man must perform a condition at common law to intitle him to re-enter, he must execute his power to intitle him to a revocation. And a court of equity can no móre let a man in to defeat an estate upon a power of revocation, without a due execution of the power, than the common law could let in a man to defeat an estate upon a condition, without performance of the condition; or than a court of equity can permit a man to defeat a voluntary conveyance without a power of revocation; for it is all but a condition which must be performed, or no advantage taken of it; and a court of equity may do great things, but they cannot alter things, or make them to operate contrary to their essential natures and properties (a).

In modern times it has been contended, that whatever is an equitable, ought to be a legal execution of a power (b): because, as Lord Mansfield observed, there should be a general rule of property; and if the courts of equity say we will presume, that where the execution is for a meritorious consideration, a strict adherence to the preeise form was not intended, and therefore it is not ne cessary, the moment the same rule is fixed and adopted at law, every man who creates, and every man who is