under the settlement, but this decree was reversed in the House of Lords (a) (1). The son was seised of the legal estate, and he had as good an equity to retain the estate discharged of the jointure, as the wife had to have the defect supplied. So although there is a meritorious consideration in the appointee, yet if the donee of the power after a defective execution of it, legally execute it in favour of a bona fide purchaser or mortgagee without notice, the court cannot interfere; for by the last execution the purchaser obtains the legal estate; and as he has equal equity with the first appointee, he cannot be disturbed. But if previously to paying his money, or to the execution of the power, he have notice either express or implied, of the prior appointment, equity will compel him, on the ground of fraud, to convey the estate to the first appointee, so as to make good the defect in the appointment to him (b)., And where trustees with a power of sale enter into a (a) Jevers v. Jevers, Dom. Proc. (b) As to what amounts to notice, 1734. see Treat. Purch. 2d. edit. ch.17. (1) The principle in the text is clear, and Jevers and Jevers is stated in Gro. and Rud. of Law and Equity, p. 19, as having been decided on the ground of the fraud in the father; but from the printed cases it appears that the settlement was made in consideration of the son waving the agreement entered into upon his mother's marriage, and the bond for settling the jointure had no reference whatever to the power, upon which perhaps the case turned. However, the author of the above book, who lived in the time when the decision was made, most likely knew the ground to which the decision was generally referred. The above case is in 4 Bro. P. C. 199, by the name of Ivers v. Ivers, which difference arose from the printed cases. In the appellant's case, the cause is entitled Jevers v. Jevers, in the respondent's Ivers v. Ivers. contract for sale of the estate, which would be deemed a breach of trust, equity will not only refuse to interfere in favour of the purchaser, but will even at the suit of the cestuis que trust, restrain the trustees from executing the contract, and the purchaser will be left to his remedy at law (c). Upon this subject of equitable relief, a question has often arisen, whether a party be intitled to the relief who is already provided for; but it is well settled, that of the quantum of provision, the parent or husband is the best judge (d). It has, however, been long vexata questio, whether a surrender can be supplied against an heir totally unprovided for (e). In Chapman and Gibson, Lord Alvanley considered that the heir could not be relieved against. The principle, he said, must be this, that the testator being under an obligation to do an act, we will compel the heir to perfect it; but we will not compel him to fulfil one obligation at the expense of another; and if the testator has totally forgot to make any provision for his eldest son, this shall be an answer to the claim of the wife or other children. In a late case (ƒ), Lord Rosslyn considered it equally clear that the court could not enter into the question, whether the heir was or was not provided for; but it was not necessary to decide the point. Lord Al 4 (c) See Mortlock v. Buller, 10 son, 2 Ves. 582; Smith v. Baker, 1 Atk. 385; Chapman v. Gibson, 3 Bro. C. C. 229. (e) Kettle v. Townesend, 1 Salk. 187; Hawkins v. Leigh, 1 Atk. 387. (f) Hills v. Downton, 5 Ves. jun. 557. vanley, vanley, however, did not subscribe to Lord Rosslyn's doctrine, but still retained his opinion, that an heir could not be compelled to supply the surrender where he could shew that the consequence would be (he being a son wholly unprovided for), that he would be compelled to fulfil the intention of his father in discharge of a moral or natural obligation in favour of a widow, or of his brothers or sisters, when it was manifest that he had neglected to discharge the obligation he was under of providing for him his eldest son (g). This question, therefore, is still very doubtful; nor is it easy to conjecture which way it will be decided. They who advert to principle will probably agree with Lord Alvanley, whilst those who regard practical inconvenience, will coincide with Lord Rosslyn, as certainly endless difficulties will be introduced if the court is to inquire into the circumstances of the heir at law. It is clear, however, that this question can never arise where the heirs are persons for whom the testator is under no natural or moral obligation to provide, as where the heir is a nephew or niece (h). But if the enquiry is to be made, it should seem that a grandchild will be within the principle, although a surrender or a defect in the execution of a power cannot be supplied in his favour. Lord Rosslyn has decided that daughters are provided for when married (i), nor is it necessary that the heir should be disinherited, for if he is provided for, it is immaterial from whom the provision moved (k), (g) See, App. No. 6, the observations of Lord Alvanley on Hills and Downton, written with his own hand. (h) Chapman v. Gibson, ubi sup. Smith v Baker, 1 Atk. 395. (i) Hills v. Downton, 5 Ves. jun. 557. (k) Hawkins v. Leigh, 1 Atk. 387; Chapman v. Gibson, 3 Bro. C. C. 229; Pike v. White, ib. 286. Important, Important, however, as this question is, and frequently as it will probably arise on copyholds, yet it is a point that can seldom occur in relation to powers. For questions as to aiding defective executions of powers, generally arise upon particular powers in settlements where the estate subject to the power is either settled on the heirs of the person creating the power, or on strangers: If it be settled on the heirs, then they are provided for under the settlement; and if it be settled on strangers, they cannot require a provision, so that in either case the defect may be supplied, although it should be determined that the relief cannot be granted against an heir totally unprovided for. Indeed, in the case of Carter v. Carter (1), Sir Joseph Jekyll addressing himself to this point, said, that where a younger child comes into equity to have the want of a surrender of a copyhold supplied, he must be wholly unprovided for, or have but a very slight provision, though there had been great variety of opinions upon this point, and where all the children have been well provided for, the court has supplied the want of a surrender against the heir, because the father was the best judge in which manner to provide for his children; and he believed Lord Cowper was the first who refused it, because the younger child was greatly provided for, and the heir had little or nothing; but he had never known this distinction made, or that the court would enter into the consideration of it where the younger child has applied to have a defective execution of a power made good. It is impossible, however, to administer a different equity in these cases. They stand on precisely the same ground. We have Lord Alvanley's authority for this (q). The same doc (D) Mose. 365. (4) Chapman v. Gibson, 3 Bro. C. C. 229. trine was laid down by Lord Chancellor King (r), and adopted by Lord Camden (s). In Mac Adam v. Logan (†), a power was given to appoint a fund amongst such child or children of the marriage as the donee should choose, and in default of appointment the fund was given to all the children equally. The power was defectively executed, as the appointment was not sealed according to the power, and Lord Thurlow, it is said, seemed to think that the want of a seal could not be supplied between persons having equal equities, though it might against an heir at law or remainder-man: but being all children, it was like a naked power. The case, however, was decided upon another ground: and it should seem that Lord Thurlow's opinion cannot be supported, for surrenders of copyholds and executions of powers in this respect go hand in hand; and it is well established, that as to copyholds the same equity shall be administered against a younger son as against an eldest (u). Therefore, if the children are entitled in the same way as heirs in gavelkind, the defect will be supplied in favour of any of the children, in the same manner as in common cases it would be supplied against the heir at law (x). So, if the case before Lord Thurlow had turned on that point, the defect ought to have been supplied on precisely the same principle; the mere circumstance of all the parties being children was not material, for those to whom the (r) Cotter v. Layer, 2 P. Wms. (u) See 2 Vern. 165; and Drake 623, third point. ย. Robinson, 1 P. Wms. 443. (x) Bradley v. Bradley, 2 Vern. 163; Andrews v. Waller, 6 Vin. Abr. p. 237, pl. 12. (s) Godwin v. Kilsha, Ambl. 684. (t) 3 Bro. C. C. 310. fund |