for the children, in default of appointment (r). He appears to have drawn a distinction between a bequest,

rr

amongst my children, as A shall appoint," which he considered as a trust, and a bequest amongst such of his children," &c. which he held to be a mere power. He considered the power in the principal case, as given to secure her the respect of her children. In Brown v. Higgs, upon the appeal, Lord Eldon observed, that the Duke of Marlborough v. Lord Godolphin, was certainly very difficult to reconcile with Harding v. Glyn, or with the case before him. But the question was not, whether one case was to be reconciled with others, but, whether all the cases had gone upon a principle, which professed to save whole, Harding v. Glyn. Lord Hardwicke in the Duke of Marlborough v. Lord Godolphin, did not say, that, where there is a power, and it is made the duty of the party to execute it, and he would not execute it, in such a case this court would not act: but he collected from the scope and object of the disposition in that case, taken altogether, the opinion, that it was a case in which the person having a power to dispose of the sum of 30,000l. had a mere power, not clothed with any duty requiring her to execute it; and therefore as to what was not disposed of, the court could not interfere (s). In another passage his Lordship said, that the case of Harding Glyn, could not be got rid of by saying it was a singular case, and that it was difficult to reconcile all subsequent cases with it; for that case had been treated as a clear authority, probably for the whole, cer

(r) And see Bull v. Vardy, 1 Ves. jun. 270; Target v Gaunt 1 P. Wms. (s) 8 Ves. jun. 569, 570.

432.

tainly

tainly by his own experience, for a very considerable part of the time elapsed since that judgment was pronounced.

In the before-mentioned case of Brown v. Higgs, one estate was devised, "to one of the sons of my nephew Samuel Brown, as he shall direct by a conveyance in his life-time, or by his will." This point did not call for a decision, but Lord Alvanley seemed to think it a mere power. Lord Eldon's opinion cannot be easily ascertained (t).

There is a class of cases where the bequest is considered not as a power in the nature of a trust, but as a power with a bequest over to the object of it in default of appointment, by implication. In many instances it is difficult to distinguish the cases.

Thus in Mason v. Limbery (u), a bequest to A for life, whom the testator "desired at his death to give it amongst his children, and the children of his said daughter, as he should think fit," was holden by Lord Talbot to be a devise to the children in default of appointment, and the childsen were accordingly decreed to be entitled to the fund, although A died in the life-time of the testator. And there are other cases to the same effect (x).

(t) 8 Ves. jun. 576.

(2) T. Term 1734, MS.

(x) Witts. v. Boddington, 3 Bro.

C. C. 95: 5Vas. jun. 503, stated

from Lib. Reg.; Reade v. Reade, 5 Ves. jun, 744; Longmore . Broom, 7 Ves. jun. 124.

CHAP,

CHAPTER VII.

OF RELIEF AGAINST THE ACTUAL EXECUTION OF POWERS.

SECTION I.

OF VOID EXECUTIONS BY THE GENERAL RULE OF LAW.

In the last chapter we considered in what cases a deIN fective execution of a power would be supported, and we are now to enquire in what instances the actual execution of a power may be set aside, although the solemnities required by the deed creating the power have been duly adhered to. This our present enquiry may be divided into two branches; 1. Where the instrument may be avoided at law. 2. Where equity only can relieve.

And first, an instrument executed under a power may be avoided at law on the same grounds as deeds in general may. To enter into the consideration of all the rules on this head would be an unpardonable digression, but their leading features, with reference to cases likely to arise upon the execution of powers, may, perhaps, without impropriety, be here stated. They form a link in the chain of our subject.

If then an instrument be altered by rasure or otherwise in a material part by the person for whose benefit

it was intended, the deed becomes absolutely void (a). The opinion formerly was, that a rasure by a stranger, would have the same operation (b); but it hath lately been very properly decided otherwise (c); for it should seem that the true ground of the rule is the fraud of the party interested. And since the statute of frauds (d), the mere cancellation of an instrument will not defeat the estate created by it (e).

If a power be executed as a consideration for stifling a prosecution for perjury, the execution is merely void : non est factum may be pleaded to the deed at law, and the special matter given in evidence (ƒ), although the opinion formerly was, that equity only could relieve where the consideration did not appear on the face of the deed. So an execution of a power as an inducement to a woman to live with the party in a state of prostitution, is void (g), but where it is a compensation for the loss of virtue after cohabitation, or, as it is termed, præmium pudicitiæ, the consideration is good, and the deed cannot be avoided (h), unless the man was married at the time of the cohabitation, and the woman was aware of this fact (i), or unless, according as it should seem to Lord Hardwicke's opinion, the woman was previously

to the intimacy a prostitute (k); but in a later case, Lord Camden held clearly, that there was no principle even in equity, which says a man may not make a voluntary provision for a common prostitute, and he made a decision accordingly in a case, the circumstances of which were well calculated to put the rule to the test (1). So an execution in consideration of the appointee procuring a marriage between the donee of the power and another person is void (m); and in like manner, the deed may be avoided whenever the consideration for executing it is such as the policy of the common law rejects, or as the statute law forbids.

If the deed be executed under duress, it is voidable, but not actually void, consequently the party may avoid it by special pleading, but cannot plead non est factum, and give the special matter in evidence (~).

There are only two other cases which I shall here notice-drunkenness and lunacy. As to drunkenness, the distinction seems to be, that the instrument cannot be relieved against, unless the party was drawn into drink through the management or contrivance of him who gained the deed (o), in which case the deed is abso lutely void, both at law and in equity, and consequently non est factum may be pleaded to it at law, and the drunkenness by the fraud of the plaintiff may be given in evidence (p).

(k) See Clarke v. Periam, 2 Atk.
333,337.

() Hill v. Spencer, Ambl. 641.
(m) Stribblehill, v. Brett, Prec.
Cha. 165, 2 Vern. 445; re-
versed in Dom. Proc.; see 1

Treat. Eq. book 1, ch. 4. s. 10; and Fonblq. notes, ibid. (n) See Bull. N. P. 172. (0) Johnson v. Medlicott, 3 P, Wms. 131, n.

(p) Cole v. Robbins, Bull. N. P, 172.