The strict construction adopted by the Courts of law, in the case of instruments exercising powers, is in some degree counterbalanced by the practice of the Court of Chancery to give relief in certain cases, when a power has been defectively exercised. If the Courts of law have gone to the very limit of strictness, for the benefit of the persons entitled in default of appointment, the Court of Chancery, on the other hand, appears to have overstepped the proper boundaries of its jurisdiction in favour of the appointee (d). For, if the intended appointee be a purchaser from the person intending to exercise the power, or a creditor of such person, or his wife, or his child, or if the appointment be for a charitable purpose, - in any of these cases, equity will aid the defective execution of the power (e); in other words, the Court of Chancery will compel the person in possession of the estate, and who was to hold it until the power was duly exercised, to give it up on an undue execution of such power. It is certainly hard that, for want of a little caution, a purchaser should lose his purchase or a creditor his security, or that a wife or child should be unprovided for; but it may well be doubted whether it be truly equitable, for their sakes, to deprive the person in possession; for the lands were originally given to him to hold until the happening of an event (the execution of the power), which, if the power be not duly executed, has in fact never taken place.

Equitable relief on the defective execution of powers.

v. Wakeford now overruled by the case of Burdett v. Doe d. Spils-bury, 10 Clark & Fin. 310; 6 Man. & Gran. 886. See also Re Rick-elf's Trusts, 1 John. & H. 70, 72, affirmed in II. of L. as Newton v. Ricketts, 9 H. of L. Cas. 262.

(c) Stat. 22 & 23 Vict. c. 35, s. 12.

The above remarks equally apply to the exercise of a power by will. Formerly, every execution of a power to appoint by will was obliged to be effected by a will conformed, in the number of its witnesses and other circumstances of its execution, to the requisitions of the power. But the act for the amendment of the laws with respect to wills (f) requires that all wills should be executed and attested in the same uniform way (g); and it accordingly enacts (A), that no appointment made by will in exercise of any power shall be valid, unless the same be executed in the manner required by the act: and that every will executed in the manner thereby required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding- it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity.

Exorcise of power by will.

Wills Act.

(d) Sec 7 Vcs. 506; Sugd. Paw. 532 et seq., 8th ed.

(e) Sugd. Pow. 534, 535, 8th ed.; 2 Chance on Powers, c. 23, p.. 488 et seq.; Lucena v.. Lucena, 5, Bear. 249.

(f) 7 Will. IV. & 1 Vict. c. 26. (g) Sec ante, p. 196. (h) Sect. 10.

These powers of appointment, viewe'd in regard to the individuals who are to exercise them, are a species of dominion over property, quite distinct from that free right of alienation which has now become inseparably annexed to every estate, except an estate tail, to which a modified right of alienation only belongs. As alienation by means of powers of appointment is of a less ancient date than the right of alienation annexed to ownership, so it is free from some of the incumbrances by which that right is still clogged. Thus a man may exercise a power of appointment in favour of himself or of his wife(i); although, as we have seen (k), a man cannot directly convey, by virtue of his ownership, either to himself or to his wife. So we have seen (l) that a married woman could not formerly convey her estates without a fine, levied by her husband and herself, in which she was separately examined: and now, no conveyance of her estates can be made without a deed, in which her husband must concur, and which must be separately acknowledged by her to be her own act and deed. But a power of appointment either by deed or will, may be given to any woman; and whether given to her when married or when single, she may exercise such a power without the consent of any hus-band to whom she may then or thereafter be married (m); and the power may be exercised in favour of her husband, or of any one else.(n). The act of parliament to which we have before referred (o), for enabling infants to make binding settlements on their marriage, with the sanction of the Court of Chancery, extends to property over which the infant has any power of appointment, unless it be expressly declared that the power shall not be exercised by an infant (p). But the act provides, that in case any appointment under a power of appointment, or any disentailing assurance, shall have been executed by any infant tenant in tail under the act, and such infant shall afterwards die under age, such appointment or disentailing assurance shall thereupon become absolutely void (q).

Powers of alienation un-connected with ownership differ from alienation in respect of ownership.

Appointments between husband and wife.

Married woman may exercise powers.

(i) Sugd. Pow. 471, 8th ed. (k) Ante, pp. 181, 218. (l) Ante, pp 221, 222.

(m) Doe d. Blomfeld v. Eyre, 3C. B. 557; 5 C. B. 713.

The power to dispose of property independently of any ownership, though established for some three centuries, is at the present day frequently unknown to those to whom such a power may belong. This ignorance has often given rise to difficulties and the disappointment of intention in consequence of the execution of powers by instruments of an informal nature, particularly by wills, too often drawn by the parties themselves. A testator would, in general terms, give all his estate or all his property; and because over some of it he had only a power of appointment, and not any actual ownership, his intention, till lately, was defeated. For such a general devise was no execution of his power of appointment, but operated only on the property that was his own. He ought to have given not only all that he had, but also all of which he had any power to dispose. The act for the amendment of the laws with respect to wills (r) has now provided a remedy for such cases, by enacting (s) that a general devise of the real estate of a testator shall be construed to include any real estate which he may have power to appoint in any manner he may think proper (t), and shall operate as an execution of such power, unless a contrary intention shall appear by the will.