In favour of children. Smith v. Blanfrey, Gilb, R. 166. Parker v. 10 Mod. 467. defective appointment, because there were only two witnesses, yet the Court of Chancery would supply the defect, where it was executed for a valuable consideration; much more where it was an execution of a trust only and though the appointment was inaccurately expressed, and in an informal manner, it should still amount to a grant of the 2000l. to Mr. Speke. 12. A covenant will, in equity, be deemed a good execution of a power, where it is entered into for the benefit of younger children; because parents are under a moral obligation to provide for them. 13. A person settled lands to the use of himself for life, and then, as to part, to his wife for life, for her jointure, then to the issue male of his own body, with several remainders over; with a proviso, that if he should have any younger children, it should be lawful for him, by deed or will, executed in the presence of two or more credible witnesses, to limit and appoint any of the said lands, except those limited in jointure, to such persons and for such estates as he should think fit, for raising 500l. a piece for younger children; to be paid at such times, and in such manner, as he by such deed or will should declare; and covenanted to do accordingly. The person to whom this power was given died, leaving several younger children; but did not make any appointment. Decreed, that this was a charge upon the lands, and bound the issue in tail; the covenant being looked upon as an execution of the appointment, in pursuance of the power. 14. A. having a power to charge lands with 70007. for younger children, by any writing under his hand, attested by three witnesses, did, in fear of sudden death, and being absent from home, and so not being able to have a sight of the deed in which this power was contained, by a paper attested by two witnesses, charge his estate with 8,000/. instead of 7000l. for his younger children. The Court of Chancery supplied the defect for the 70007. vided for. 15. Lord Hardwicke has said, that in cases of aid- Though proing the defective execution of a power, either for a wife or a child; whether the provision has been for a valuable consideration or not, has never entered into the view of the Court. But being intended for a provision, whether voluntary or not, has been always held to entitle the Court of Chancery to give aid, to a wife or child, to carry it into execution, though defectively made. Neither is it material that a wife or child who comes for the aid of the Court, to supply a defective execution of a power, must be entirely unprovided for. The general rule that the husband or father are the proper judges what was the reasonable provision for a wife or child, was a good and invariable rule. And when a father had done any thing extravagant, the Court did not break through the general rule, when they set it aside, but went upon a collateral reason, that this extravagant provision, either for a wife, or one child only, was a prejudice and injury to the rest of the family; and that one branch ought not to be improperly preferred, to the ruin of the rest. creditors. 16. It was laid down by C. J. Treby, in Bath and In favour of Montague's case, that where a person, having a power 3 Ch. Ca. 68. of appointment, executed it for the payment of his debts, but the circumstances of the power were not exactly observed, there should be relief in equity; because payment of debts was a most conscientious Pollard v. thing, and fit for a court of conscience to take care 1 Cha. R. 98. of, and see performed; and the precedents had all gone that way. Greenvill, chasers for a sideration. 17. Purchasers for a valuable consideration have And of puralways been favoured in equity; for there the sub- valuable constantial part of every contract is the consideration, and for that the right is transferred. It also being a rule in equity that what ought to have been done is Ante, c. 15. 224. considered as actually done, the Court of Chancery will, upon that principle, supply any defect in the execution of a power, where there is a valuable consideration. 18. It has been generally understood, that equity would not support a defective execution of a power of leasing against a remainder-man. It is however An. 2 Freem. said, by Sir J. Trevor, M. R., that where a lease is voluntary, there, if it be not good at law, it shall not be made good in equity. But if a lease is made to a tenant at rack rent without fine, which is voluntary; yet, if the tenant has been at any considerable expense in building or improving, equity will supply the defective execution of the power. 19. In modern times a lessee at rack rent has been considered as a purchaser for a valuable consideration. 7 Term R. 480. And Lord Kenyon has laid it down, that a lease being granted for a valuable consideration, and merely defective in point of form; a court of equity would interfere, and direct a proper lease to be granted. Shannon v. Bradstreet, 1 Scho. & Lefroy, 52. But not for volunteers. Ante. § 11. Bramhall v. 220. 20. It should however be observed, that courts of equity will give no assistance, where both parties are volunteers. For where the question, as to the execution of a power, lies between an appointee under a power, without consideration, and a remainder-man, the latter, having a vested interest, will be clearly entitled against the former; unless the appointee can show that the remainder-man is devested, by actual execution of the power, in due form. 21. In the case of Sergeson v. Sealy, the widow of Mr. Pitt made a voluntary disposition of 20007., the remainder of the 40007. And Lord Hardwicke said, Hall, 2 Eden. that this was not an appointment for a valuable consideration, but only a voluntary disposition; and therefore, as the will under which it was given, was not executed in the presence of three witnesses, it had not pursued the power, and consequently was a void appointment is fraud. 3 Cha. Ca. 87. 92.122. 22. As one of the principal objects of a court of Or where there equity is to relieve against fraud and deceit, it has been long established that where a party interested prevents a strict compliance with the circumstances required in the execution of a power, from immoral motives; there, if the person, who has the power, does any act that plainly evinces his intention to execute it, such act will, in equity, be deemed a good execution of it. 23. Thus, where the remainder-man gets the deed Gil. Cha. 306. into his possession, and will not allow the tenant for life to have a sight of it: there the tenant for life may execute conveyances, and though he does not pursue the terms of the power, yet equity will relieve, even in favour of a volunteer; because the remainder-man shall not take advantage of his own wrong, by withholding from the tenant for life the sight of his power. plete execution 24. Another object of a court of equity is, to relieve Where a comagainst all manner of accidents, even in favour of is prevented by volunteers; it being unconscionable for a remainder- accident. man to take advantage of them. It was therefore agreed, in Bath and Montague's case, that if a person 3 Cha. Ca. 68. made a conveyance with a power of revocation, by a deed executed in the presence of four privy counsellors; and he was sent by the King to Jamaica, where that circumstance could not possibly be complied with, equity would support a revocation without it. tion will not be supplied. 25. Although a court of equity will, in many in- A non-execu stances, aid a defective execution of a power, yet it will never interpose in the case of a non-execution of a power; which always leaves it to the free will and 2 P. Wms. 490 election of the party to whom the power is given, either to execute it or not. For which reason equity will not say he shall execute it, or do that for him which he does not think fit to do for himself. And the intervention of death between a man's resolving to execute a power, and his actually executing it, is not of itself, even in cases where the act is of such Arundell v. 3 Cha, Ca. 70. Smith v. Ash ton, Finch, 273. 1 Freem. 308. 1 Cha. Ca. 264. Treat. of Eq. a nature as a man is under an obligation to perform; a ground for the interposition of a court of equity in favour of the person intended to have been benefited by the doing thereof, although some steps be taken towards completing such intention. 26. A. having a power of revocation, by any writing under his hand and seal, and being desirous to provide for his daughters, prepared notes in writing, which he declared should have the effect of his last will, and which he called instruments for his counsel to draw up his last will in form. His counsel drew a writing, and had the same engrossed, leaving blanks for the names of the trustees. A. died without executing this will. A bill being exhibited by the daughters, for the portion given them by these instructions, an issue was directed to try whether these notes were part of the last will of A., and a verdict was given that they were a will; whereupon the Court decreed them to be a good execution of the power. 27. Mr. Fonblanque observes, that this case has been B. 1. c.4. 25. cited to prove that a non-execution of a power will be Piggot v. Pen aided in equity; but that it is clear from the circumstance of directing an issue to try whether these notes amounted to a will, that the Court did not think the accident of the father's death, before he had completed his intent towards his younger children, a sufficient foundation for relief; it therefore directed a trial to ascertain whether these notes were a will; and it being found that they were, the question then was reduced to this, whether the Court could relieve the younger children, in respect that the will wanted circumstances which were required by the power to attend the execution of it; which, as between the younger children and the heir, it certainly would do; the case being, by the verdict, a case of a defective execution only. 28. A married woman having a power of revocation ice, Com. Rep. and appointment, and being sick, wrote a letter to her attorney who had drawn her settlement, desiring 250. |