Vide Tit. 35 & 36.

A Power may be forfeited

uses, with a proviso, that if B. shall revoke, the uses shall cease: there B. cannot release his power; and a feoffment by him shall not extinguish it; for the power of B. is merely collateral, and the land doth not move from him, nor shall the party be in by him, nor under him; and neither a fine nor a recovery will in this case operate as a bar to the power.

22. A power of revocation may, in some cases, be to the Crown. forfeited to the Crown, by an attainder for high treason, and by that means become vested in the King. Thus, if a person is tenant for life, with a power of revocation over the estates in remainder, and he is attainted of high treason, his estate for life, and his power of revocation, will both be forfeited.

23. In a case of this kind, if the execution of the power of revocation be attended with circumstances inseparably annexed to the person of him to whom the power is given, it cannot be executed by the

Crown.

24. Thomas Duke of Norfolk conveyed his estate to trustees, to the use of himself for life, remainder to the use of his eldest son in tail, with several remainders over, with a proviso, that it should be lawful for the duke to revoke those uses, by any writing under his proper hand, subscribed by three witnesses. The duke was afterwards attainted of high treason; and it was determined that this power of revocation, although forfeited, could not be executed by Queen Elizabeth; because the circumstances prescribed in the execution of the power were so inseparably an nexed to the person of the duke, that no one but himself could execute them.

25. But if the execution of a power of revocation be not attended with circumstances inseparably annexed to the person of him to whom the power is

given; there, in case of an attainder for high treason, the power may be executed by the Crown.

Case,

26. Sir Francis Englefield left the kingdom in the Englefield's first year of Queen Elizabeth by licence, and re- 7 Rep. 11. mained abroad beyond the time of his licence. The Queen, by her warrant under the privy seal, required him to return, and upon his not complying, seised his lands. Sir Francis Englefield, by indenture executed at Rome, and made between him and Francis Englefield his nephew, covenanted for the advancement of his blood, &c. to stand seised to the use of himself for life, remainder to the use of his said nephew and the heirs male of his body, remainder to the use of the right heirs of his nephew; with a proviso, that as his nephew was an infant, so that his proof was not then seen, and because the uncle did not think it convenient to settle the said inheritance in the nephew absolutely, so long as the uncle should live, therefore if the uncle, by himself, or by any other, should, during his natural life, deliver or offer to the nephew, a gold ring, to the intent to make void the uses, then all the uses should be void.

Sir Francis Englefield was afterwards indicted for high treason, for compassing the Queen's death, on which he was outlawed. And in 28 Eliz. an act of attainder for high treason was passed against him. Queen Elizabeth, by letters patent, reciting the settlement, and power of revocation, on tender of a gold ring, appointed two persons to deliver a gold ring to Francis Englefield, which he refused. The question was, whether this tender of a gold ring to Francis Englefield, was a good revocation of the uses.

It was argued, that the execution of this power was not given to the Queen by the act of attainder, because it was inseparably annexed to the person of VOL. IV.

U

245.

Sir Francis Englefield. For although the tender of a ring was a thing that might be done by any person, yet, as that circumstance was only a mark of the intention of Sir Francis Englefield, which intention must arise from the opinion he himself should form of his nephew's future disposition and conduct, therefore no person but Sir Francis himself could direct the tender of the ring. But the Judges held, that the whole force and effect of the power of revocation depended on the tender of the ring, so that the Queen might lawfully execute the power, and therefore judgement was given for the Crown.

27. Lord Coke observes, that the counsel of Francis Englefield were not satisfied with this judgement; and therefore advised a writ of error; but at the next parliament a special act was passed to esta1 Hale P. C. blish the forfeiture in the Queen. And Lord Hale has observed on this case, that if Sir Francis Englefield had died before the Queen had made the tender, then the condition, which was only limited to him during his life, had been determined, and the Queen could not have tendered; for the attainder could not lengthen the condition, longer than the first 1 Vent. 130. limitation.

Vide Hardwin v. Warner, Palm. 429. Lat. 24. Smith v. Wheeler,

A Power may be merged.

Cross v.
Hudson,

3 Bro. R. 30.

28. A power given to a person, having a particular estate in the land, may be merged by his acquisition of the fee simple.

29. An estate was limited to John Hay for life, remainder to his wife for life, remainder to the children of the marriage in tail, remainder to the survivor of the husband and wife in fee; with a power to the husband, by deed or will, to charge the lands with a rent. There was no issue; and the husband in the lifetime of his wife, by will, reciting the power, devised, in execution of his power, and of

all other powers, a rent of 100 l. a year; and survived

his wife.

Lord Thurlow said the power was merged; but he was also of opinion, that though the power was gone, and the will purported to be an execution of the power; yet as he evidently meant the charge should take place on the estate at all events, it must be sustained as a charge on the estate, out of the interest he had at his death.

Where there

30. Where there is no object for the execution of is no Object a power, it of course becomes void.

of a Power, it becomes

Roe v. Dunt,

31. Thus where a person had a power given him void. by his marriage settlement, to appoint the lands to 2 Wils. R. the children of the marriage; and for default of 336. appointment, then to all the children equally; and there was but one child; an appointment to that child was held to be void, because he took under the limitation in the settlement.

31. Some Operation is always
given to a Deed.

40. Where the Grantee has an
Election how to take.

guity.

And where there is Fraud. 55. Where a Deed operates as an Estoppel.

61. Construction of Conveyances

to Uses.

65. Of Declarations of Trust. 43. No Averments admitted 67. Of Articles of Agreement.

against Deeds.

General
Rules.

Touch. 86.

1 Inst. 36 a. Plowd. 154. 160.

SECTION 1.

IN the construction of deeds, there are two sorts

of rules one general, and applicable to every kind of deed: the other particular, and applicable only to some kind of deeds; or to some particular part of a deed.

2. With respect to the first sort, it is a maxim of the highest antiquity in the law, that all deeds shall be construed favourably, and as near the apparent intention of the parties as possible, consistent with the rules of law-Benignæ sunt faciendæ interpretationes chartarum, propter simplicitatem laicorum; ut res magis valeat quam pereat.

3. If, however, the intention of the parties be contrary to the rules of law, it will then be otherwise;