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220.

a little circumstance, when the owner of the estate had fully declared his intention to execute the power. But in a subsequent case Sir Joseph-Jekyll said, this Fitzg. R. was going too far, unless there were some equitable circumstances in the case; and was contrary to what was resolved in Bath and Montague's case. Lord Mansfield has also said, that where there is no me- Cowp. R. ritorious consideration, the intention of the person Ross v. Ewer, who creates the power cannot properly be fulfilled, 2 Atk. 156. unless the form is strictly pursued; and this doctrine Spranger v. has been confirmed by the following modern case.

269.

Bernard, 2 Bro. R.

585.

Hawkins v.

3 East, 410.

7. A husband, tenant for life, had a power of revocation, by any deed or instrument in writing, to be Kemp, executed by him in the presence of, and attested by, three or more credible witnesses, and to be enrolled in one of his Majesty's courts of record at Westminster; by and with the consent and approbation in writing of nine persons, or the survivors or survivor of them, but not otherwise. One of the nine persons whose consent was necessary gave a power of attorney to the husband, authorizing him to consent to any revocation he should think proper to make, and to execute any deed or instrument necessary for that purpose. By a deed poll executed by the husband in his own character, and also as attorney to one of the trustees under the power, he revoked the uses; and this deed was enrolled. Seven years after, the husband, by an indenture, reciting the deed of revocation, and that it being executed by the husband as the attorney of one of the persons whose consent was necessary, upon that account doubts were entertained of its validity, as a revocation, revoked the uses, with the consent of all the parties required; but this deed was not enrolled, in the lifetime of the husband: the court resolved that the first deed was

M'Queen v.
Farquhar,
11 Ves. 467.

Wright v.

Wakeford,

not a good revocation, because the consent of one of the persons, whose consent was necessary, was not sufficiently given, by the execution of the deed by the husband, as his attorney; for if such a mode of signifying a consent was held sufficient, it would be a total destruction of the check intended, by requiring the personal approbation of a third person: that the second deed was not sufficient, because it was not. enrolled; and that the enrolment of the first deed could not be transferred to the second; for every thing required to be done, in the execution of such a power, ought to be strictly performed.

8. It was held by Lord Eldon, that a power of appointment by deed, to be signed and sealed in the presence of two or more witnesses, but not required to be attested by them, the attestation applying only. to scaling and delivery, was sufficient; as it should be. presumed that the signature was also in the presence of the witnesses.

In a subsequent case, where a power of sale was 17 Ves. 454. given, with the consent of certain persons, testified by a writing under their hands and seals, attested by two or more witnesses; the attestation extending only to the sealing and delivery of the deed; Lord Eldon held, that there should have been an attestation of the act of signing; and directed a case to the Court of Common Pleas, where it was agreed that the deed was not executed conformable to the power.

9. By the stat. 54 Geo. III. c. 168. it is enacted, "that every deed or other instrument, made with the intention to exercise any power, authority, or trust, or to signify the consent or direction of any person, whose consent or direction may be necessary to be so signified, shall (if duly signed and executed, and in other respects duly attested,) be of

the same validity and effect, and no other, at law and in equity, and proveable in like manner, as if a memorandum of attestation of signature, or being under hand, had been subscribed by the witness or witnesses thereto, expressing the fact of sealing, or of sealing and delivery, without expressing the fact of signing; or any other form of attestation shall not exclude the proof, or the presumption of signa

ture."

10. There are however, several cases where a court of equity will support a defective execution of a power; which will be stated in the next chapter.

Instrument is

11. Where the nature of the instrument by which Where the a power is directed to be executed, is particularly specified it specified, it must be adopted. Therefore a power must be to revoke by deed, cannot be executed by will.

adopted.

12. The Earl of Bath, and Lord Pulteney his eldest Darlington v. Pulteney,

son, joined in suffering recoveries, and declared the Cowp. 260. uses thereof to such persons as Lord Bath and Lord Pulteney, by any deed or deeds sealed and delivered by them in the presence of two or more credible witnesses, should jointly appoint; and in case of the death of either of them, then as the survivor of them, by any deed or deeds, to be executed as aforesaid, should appoint. Lord Bath having survived his son, made his will, duly executed and sealed, and thereby devised a piece of ground comprised in one of the recoveries. The question was, whether this will should operate as an execution of the power. A case having been sent by the Court of Chancery to the Court of King's Bench on this point; Lord Mansfield said, the first requisite which the power prescribed was impossible to be performed by will, which was, that it should be by joint deed of Lord Bath and his son. It was true the survivor.

Doe v. Cavan,

5 Term R. 567.

6 Bro. Parl. Ca. 175.

A Power

given generally may be executed by

Deed or Will.

Kibbett v. Lee,

Hob. 312.

had the same power; but then it was emphatically reserved to be executed by deed. Now the word deed, in the understanding of the law, had a technical signification, to which a will was in no respect applicable. If any words had been thrown in, such as writing, instrument, or other term of a general comprehensive meaning, it might have been fair to have taken advantage of it, in favour of the intention; but there being no general words, nor any meritorious consideration, it was impossible to say that a will was a deed, within the terms of this power.

The Court of King's Bench certified, that the power was not duly executed by this will. This opinion was confirmed by a subsequent determination of that Court, and affirmed by the House of Lords.

13. Although the Courts have never deviated from the principle, that all the circumstances required should be pursued, yet, in other respects, they have proceeded with sufficient liberality in supporting revocations and appointments. Thus, if a power be given generally, without any restriction as to the nature of the instrument by which it is to be executed; or if words of a general nature only, such as writing or instrument, be inserted; it may in such case be executed either by a deed, or by a will.

14. A person covenanted to stand seised to the use of himself for life, remainder to his eldest son and the heirs of his body; reserving to himself a power, by writing under his hand and seal, and by him delivered in the presence of three credible witnesses, to revoke the uses. Afterwards the covenantor made his will in writing, under his hand and seal, delivered in the presence of four witnesses, and thereby devised the lands comprised in the deed of

1

covenant to his youngest son. It was resolved, that this will, being a writing signed, sealed, and delivered in the presence of three credible witnesses, was a good revocation and appointment.

15. In the preceding case, the power was directed to be executed by the donee thereof, being in perfect health and sound memory; and though the verdict did not find his being in perfect health and memory, yet it was held to be well enough; for that should be presumed, unless the contrary was proved.

16. A person devised lands to his wife for life, and Tomlinson v. Dighton, then to be at her disposal, provided it was to any of 1 P.Wms. his children, if living; if not, to any of his kindred 149. that his wife should please. The wife married a second husband, and conveyed the premises, jointly with him, by lease and release, and fine, to a trustee and his heirs, to the use of the wife for life, remainder to her daughter by her first husband, and the heirs of her body, remainder to her son by her first husband, and his heirs. The Court was of opinion that the conveyance by lease and release was an effectual though an improper execution of the power.

v. Fowke,

17. In a settlement a power was given to Elizabeth Roscommon Fowke, by any writing under her hand and seal, 6 Bro. Parl. attested by two or more credible witnesses, (notwith- Ca. 158. standing her coverture) to revoke the uses, and by the same or any other deed to appoint new uses. Elizabeth Fowke made her last will in writing, under her hand and seal, and in the presence of three credible witnesses, and thereby, without taking notice of her power, devised the estates. Upon a case sent from the Court of Chancery of Ireland to the Court of Common Pleas there, it was certified that the will was a good execution of the power. And on an appeal to the House of Lords of England, the

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