1803. SHANNON V. BRADSTREET. [The Lord CHANCELLOR having expressed some doubt, whether the expression here referred to had not been improperly ascribed to Lord Chief Justice DE GREY, it was observed at the bar, that in a former part of the same report, (p. 746) his Lordship is made to put the question, "Whe"ther the remainder-man could compel the lessee to per"form such a lease to the extent of the power, and in "the manner prayed by the bill in that case?" in answer to which it was said not to be an objection to that bill if he could not; and the instance of a contract between an infant and an adult was cited; in which the latter is bound, though the former was not, Lord CHANCEllor. That case is no answer to the difficulty raised; it is the peculiar privilege of infants for their protection, that though they are not bound, yet those who enter into contracts with them shall be bound, if it be prejudicial to the infant to rescind the contract.] 3. There is such a vagueness and uncertainty in this contract, that it cannot be carried into specific execution in all its parts, and is therefore wholly void. The rent, on the face of the agreement is uncertain, and to this day nothing has been done to reduce it to certainty. Then the covenant to lay out money in houses, buildings, and permanent and useful improvements, is so loose and uncertain, that it is impossible for the court to decree a specific execution of it. Mosely v. Virgin, 3 Ves. Jun. 184. This is therefore not merely a defective execution of the power, (which under circumstances, equity would relieve) but a non-execution, which equity will not help. Tollet v. Tollet, 2 P. Wms. 490. Lord CHANCELLOR. I have looked into the pleadings in this cause, and the cases which were cited, and I am of opinion that I ought to continue the injunction to the hearing. This is the only order that I can regularly make now; the parties will act on it as they see fit. (His Lordship then stated the facts of the case and observed that the endorsement on the draft of the'. lease by Sir Samuel Bradstreet was a complete approbation of the lease and a direction that possession should be given in conformity to it, provided Shannon entered into the short memorandum required; that all the terms of the agreement were thus completed except the ascertaining the rent by an admeasurement of the lands, and that the memorandum was completely accepted by Sir Samuel Bradstreet; His Lordship then proceeded :) The first and most important question in this case is, whether a contract of this description, binds the remainderman, for that it bound Sir Samuel cannot be controverted; there can be no doubt of that; it is as complete an agreement as can be made; completed by the possession in pursuance of the contract. If Sir Samuel had been living at this day, and there had been an enjoyment of the plaintiff, and the other circumstances as stated here, there is no doubt that if he had served such a notice in ejectment, he would have been restrained and compelled to execute the lease. If he had been seized in fee, no doubt Sir Simon would be bound as his heir, and the court would make a decree against him; but the question is, as Sir Samuel was only tenant for life with a leasing power (though he himself was bound, and though his assets would be bound to make recompence) whether the remainder-man be bound? This brings the question to one of great importance, namely, whether a remainder-man be bound by the contract of tenant for life to make a lease pursuant to his power? a 1803. SHANNON V. BRADSTREET. This question is of importance in many points of view. If the remainder-man be not bound in such cases the tenant for life is put into a very awkward situation: a contract of some kind he must make before he can make an occupation lease; he must agree with the tenant upon the terms; the tenant must prepare himself to take possession, for no lease can be made but in possession; so that the whole contract must be complete on both sides before a lease can be made; it is evident therefore, that some contract must precede; and if that is to be subject to the uncertainty of not being carried into execution, if the tenant for life should die in the mean time, it will be very disadvantageous to the letting of estates under such powers. Now it is decided in cases almost without number, that contracts for jointures will bind the remainder-man, though made only in pursuance of a power to make jointures. Contracts for valuable consideration to execute a power to make a charge of any description under a power, are also binding on the remainder-man. Voluntary executions, if one may so term them, where there has been an imperfect execution, but upon a meritorious consideration, have been also held to bind; as in the case of provision for wife or children, or for payment of debts; so in the case of a will where it was executed in the presence of two witnesses and where three were necessary; it has been held to be good in equity in Wilkie v. Holmes, 1752,(a) which has been acted upon ever since. (a) Wilkie v. Holmes, April 16 and 20, 1752. On a bill by creditors. By settlement power was given to husband and wife by deed, and to the survivor by will, to be duly executed, to charge the lands settled with 3,000. such charge by will to be only for payment of their or either of their debts, or for younger children.* The wife surviving, by will executed in the presence of two witnesses charged the estate with her husband's debts and her own debts, and 7001. a piece to two daughters, if her personal estate should be insufficient for those purposes. Lord HARDWICKE, CHANCELLOR, was of opinion that the will was not duly executed within tlte 1803. SHANNON V. BRADSTREET. Power to make leases is as liberally as powers of jointuring, charg ing, &c. 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 remainder- to be construed man, 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. 1803. SHANNON V. BRAD STREET. 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 |