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But it is objected that a leasing power differs from all these cases of powers, and the difference is said to consist in this; that in the other cases the remainder-man has no interest in the mode in which the power is executed, that he claims nothing under it; but that under the leasing power he claims the rent reserved. Now, on what ground can it be contended that that which is a mere charge upon a remainderman, is to receive a more liberal construction than what is not a mere charge upon him, but may be much for his benefit? In the case of powers to make leases at the best rent that can be obtained, it is evident that the author of the power looks to the benefit of the estate; and that the power is given for the benefit both of the tenant for life and of all persons claiming after him; for where the tenant for life can give no permanent interest and his tenant is liable every day to be turned out of possession by the accident of his death, it is hard to procure substantial tenants; and therefore it is beneficial to all parties that the tenant for life should have a power to grant such leases. It is evident that the occupying tenant can afford to give a better rent under such circumstances than if he were only to have a precarious tenure; we see from the lettings for three years in this court, and under custodiams in the Exchequer how disadvantageous short and precarious lettings are; but if the letting be for twenty-one or thirty-one years, the tenant does not consider the amount of the profits for the first years so much as the profit during the term, and can afford to be out of

meaning of the power, but that the court ought to aid the defective execution, in favour of the creditors and younger children, considering their claim as under the settlement, and the mode of executing the power as depending on the settlement and not on the statute of frauds, except as the words, " duly executed" were construed by reference to that statute. If this had been a voluntary execution of the power and not for payment of debts, or other valuable and meritorious consideration, it must have stood on its own ground, and would not have been supported. See Smith v. Ashton,, 1 Ch. C. 263. S. P.; Wade v. Paget, 1 Bro. Ch. C. 368. See the above case under the name of Wilkie v. Holme, 1 Dick. 165.

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1803.

SHANNON

V.

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pocket by expenditure for the first years; because in the subsequent years he will make it up by the improvements the estate receives in consequence of his expenditure. This therefore is a power which is calculated for the benefit of the estate. Other powers, generally speaking, such as jointuring powers and powers to make provisions for younger children are calculated for the benefit of the family; they may be indirectly beneficial to the remainder-man, in some respects, but they are no direct benefit to him; nor can I conceive why these powers should be construed more liberally than powers to make leases, except where it is evident that such power is abused; and in case of letting leases, the power is certainly more liable to be abused than in making provisions for wife or children; in these latter cases, the sum to be raised is generally limited and cannot be exceeded, but a power of leasing is to a certain extent a power of charging; if a fine is taken, it is unquestionably so, and even where no fine can be taken, it is, to a certain degree a charge and for the benefit of tenant for life as well as the remainder-man, for tenant for life will get a better rent than if he had no such power. I cannot conceive therefore, what distinction there is between a leasing power and the other powers before noticed; they are all powers given to tenant for life for his benefit, to enable him to charge the estate; and in case of a rack rent, the power of leasing is also a benefit to the remainderman. Now, in case of a jointuring power, and in all the other cases, a contract has been held sufficient to enable a party to have the power executed in equity.

It has been contended that there is a difference between what is called a non-execution and a defective execution, and that though in the case of a defective execution of a power the court will execute it, yet where there is a non-execution (which this is contended to be) the court will not execute it. I apprehend this is founded upon a mistake of the

meaning of a non-execution; a power is said to be not executed, where nothing is done; but a defective execution is where the power has not been executed according to the terms of the power (for if it were executed according to the terms there would be nothing to be supplied) but where it has been intended to execute it, and that intention is sufficiently declared, but the act declaring the intention is not an execution of the power in the form prescribed, there the defect shall be supplied in equity. What stronger declaration of an intent to execute a power, can there be, than a contract, which makes the party liable to damages for not executing it, which may be enforced against him, and by which he may be compelled to execute the power in his life time? It strikes me to be beyond the case of a voluntary charge for younger children, or for a wife, which if for meritorious consideration have always been enforced against the remainder-man. In cases without number, upon jointuring powers particularly, (a) it has been

determined that a covenant is a sufficient declaration of intent to execute, even when made before the power arose, as where a power is limited to be exercised by tenant for life in possession, and he covenants that when he comes into possession he will execute; in all these cases, courts of equity have relieved.

The grounds on which the case of Coventry v. Coventry was decided, are stated in the decree in that cause, 2 P. Wms. 233, (note to Cox's edition) which declares that the articles executed by Gilbert, Earl of Coventry were a lien on the estate. If so, the consequence is that the party on whose estate they were a lien could have the benefit of them just as much in the form of articles, as in the form of an actual deed. Suppose a power to make a jointure not exceeding 1,000l. per ann. with a proviso that if there were no execution of the power, and if the tenant for life should die (a) Vid. Jackson v. Jackson, 4 Bro. Ch. C. 462.

1803.

SHANNON.

υ.

BRAD

STREET.

Non execution

of a power is where nothing is done. Defective Execu

tion is where

there has been

an intention to execute, and

that intention sufficiently declared. But

the act de

claring the intention is not an execution in the form prescribed.

!

1803.

SHANNON

υ.

BRAD

STREET.

leaving a widow that she should have 500l. per ann. and
suppose a contract made upon the marriage of the te-
nant for life to charge 400/. for her, under the power,
which would be a less provision than she would have if
the power had not been executed: I conceive the widow
could not say that she was not bound. So in the case
of an actual lease made under a power, containing co-
venants on the part of the tenant; the lease being a lien
on the lands by virtue of the power, the remainder-
man has the benefit of all the covenants, because they
are part of a contract which creates a lien on the lands;
yet they are mere contracts; they are no part of the demise
under the power, but stipulations entered into by the tenant
for life with the lessee for the benefit of the remainder-man ;
as for instance, in the case of a covenant on the part of the
tenant to repair, supposing it a covenant not required by
the
power.

If Sir Samuel had actually executed this lease and died, the covenant for laying out the 200%. might unquestionably, I apprehend, have been inforced by Sir Simon, as a covenant going with the land. After the death of Sir Samuel, suppose the rent had proved too high, the tenant could not have said, "I will abandon the lease;" he must have paid the rent to the remainder-man under the covenant; then if he could enforce the covenant upon a lease executed, what reason is there why he should not enforce the contract if the contract be binding upon him? therefore it necessarily follows, that if a contract be binding on a remainder-man, it is binding on the lessee, and that the remainder-man can enforce performance. And it is a mistake to say that there is no privity; there is a privity arising from the subject matter of the contract. The contract is to bind both the tenant for life and the remainder-man, and therefore the remainder-man has a right to have the benefit of the stipu lations made for his benefit.

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1803.

SHANNON

υ.

BRADSTREET.

bler, doubted.

In the case of Cambell v. Leach, Ambl. 749,(a) Lord Chief Justice DE GREY says, "As to the lessee's power of "enforcing the contract against the remainder-man, this is a new point, but though new I think upon principle it "is to be enforced; the ground of the objection is, that the "remainder-man is neither party nor privy to the lease, "which would hold in one made by bare tenant for life; "but under the power for leasing, there is a referable privity given by the settlement, and such tenant has a "qualified power of contracting to bind the remainder66 man, and I do not know that the remainder-man could on his part enforce the contract of such tenant for life. I had at "first some doubt of this point, but own myself satisfied by "what was said in answer." These additional words, I A passage in the report of suspect were not uttered by Lord Chief Justice DE GREY; Campbell v. but if they were, they were probably suggested by the case of Leach, in AmStamford v Omly, of which I have a slight note; that case was, tenant for life, having a power to make leases, made a contract for a lease, taking a sum of money (714.) and died without executing the lease; the lessee went to the remainder-man, agreed with him for the same lease, and then brought his bill against the representative of the tenant for life to get back the 71/. from him. Lord HARDWICKE did not wish to decide that case, and it was compromised; and it appears by the note which I have, that the bar were dissatisfied because he did not decide it; but I dare say something of that case was floating on Lord Chief Justice De GREY's mind when he gave his opinion in the case of Campbell v. Leach; for how he could follow up what he had before said by the words attributed to him by the reporter, I cannot conceive: however, in that case Lord Chief Baron SMYTH thought with him that the remainder-man was clearly bound by the act of tenant for life.

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