Infants' marriage settlements.


Ignorance of the nature of powers has caused disappointment of intention.

A general power of appointment now executed by a general devise.

(n) Sugd. Pow. 471, 8th ed. (o) Ante, p. 65. (p) Stat. 18 & 10 Vict. c. 43, 8. 1.

(q) Sect. 2.

(r) Stat. 7 Will. IV. & 1 Vict. c. 26.

(s) Sect. 27.

A power of appointment may sometimes belong to a person concurrently with the ordinary power of alienation arising from the ownership of an estate in the lands. Thus lands may be limited to such uses as A. shall appoint, and in default of and until appointment to the use of A. and his heirs (u). And in such a case A. may dispose of the lands either by exercise of his power (x), or by conveyance of his estate (y). If he exercise his power the estate limited to him in default of appointment is thenceforth defeated and destroyed; and, on the other hand, if he convey his estate, his power is thenceforward extinguished, and cannot be exercised by him in derogation of his own conveyance. So if, instead of conveying his whole estate, he should convey only a partial interest, his power would be suspended as to such interest, although in other respects it would remain in force; that is, he may still exercise his power, so only that he do not defeat his own grant. When the same object may be accomplished either by an exercise of the power, or by a conveyance of the estate, care should be taken to express clearly by which of the two methods the instrument employed is intended to operate. Under such circumstances it is very usual first to exercise the power, and afterwards to convey the estate by way of further assurance only; in which case, if the power is valid and subsisting, the subsequent conveyance is of course inoperative (z); but if the power should by any means have been suspended or extinguished, then the conveyance takes effect.

A power may exist concurrently with ownership.

A power may be extinguished or suspended by a conveyance of the estate.

(t) Cloves v. Awdry, 12 Beav. 604.

(u) Sir Edward Clere's case, 6 Rep. 17 b; Maundrell v. Maundrell, L0 Ves. 210.

(x) Roach v. Wadham,6 East, 289.

(y) Cox v. Chamberlain, 4 Ves. 631; Wynne v. Griffith, 3 Bing. 179; 10 J. B. Moore, 592; 5 B. & Cress. 923; 1 Russ. 283.

The doctrine of powers, together with that of vested remainders, is brought into very frequent operation by the usual form of modern purchase deeds, whenever the purchaser was married on or before the first of January, 1834, or whenever, as sometimes happens, it is wished to render unnecessary any evidence that he was not so married. We have seen (a) that the dower of such women as were married on or before the first day of January, 1834, still remains subject to the ancient law; and the inconvenience of taking the conveyance to the purchaser jointly with a trustee, for the purpose of barring dower, has also been pointed out (b). The modern method of effecting this object, and at the same time of conferring on the purchaser full power of disposition over the land, without the concurrence of any other person, is as follows: A general power of appointment by deed is in the first place given to the purchaser, by means of which he is enabled to dispose of the lands for any estate at any time during his life. In default of and until appointment, the land is then given to the purchaser for his life, and after the determination of his life interest by any means in his lifetime, a remainder (which, as we have seen(c), is vested) is limited to a trustee and his heirs during the purchaser's life. This remainder is then followed by an ultimate remainder to the heirs and assigns of the purchaser for ever, or, which is the same thing, to the purchaser, his heirs and assigns for ever (d). These limitations are sufficient to prevent the wife's right of down- from attaching. For the purchaser has not, at any time during his life, an estate of inheritance in possession, out of which estate only a wife can claim dower (e): he has during his life only a life interest, together with a remainder in fee simple expectant on his own decease. The intermediate vested estate of the trustee prevents, during the whole of the purchaser's lifetime, any union of this life estate and remainder (f). The limitation to the heirs of the purchaser gives him, according to the rule in Shelley's case (g), all the powers of disposition incident to ownership: though subject, as we have seen (h), to the estate intervening between the limitation to the purchaser and that to his heirs. But the estate in the trustee lasts only during the purchaser's life, and during his life may at any time be defeated by an exercise of his power. A form of these uses to bar dower, as they are called, will be found in the Appendix (i). As the estate of the husband under these uses is partly legal and partly equitable, the wife, if married after the 1st of January, 1834, will not be barred of her dower by these limitations (k); and if the deed is of a date previous to that day, even an express declaration contained in the deed that such was the intent of the uses will not be sufficient (/).

Modern method of barring dower.

(z) Ray v. Pung, 5 Mad. 310; 5 B. & Ald. 561; Doe d. Wigan v. Jones, 10 B. & Cress. 459.

(a) Ante, p. 223.

(b) Ante, p. 225. (c) Ante, p. 258.

Besides these general powers of appointment, there exist also powers of a special kind. Thus the estate which is to arise on the exercise of the power of appointment may be of a certain limited duration and nature: of this an example frequently occurs in the power of leasing which is given to every tenant for life under a properly drawn settlement. We have seen (m) that until recently a tenant for life, by virtue of his ownership, had no power to make any disposition of the property to take effect after his decease. He could not, therefore, grant a lease for any certain term of years, but only contingently on his living so long; and even now he must apply to the Court of Chancery, unless he claims under a settlement made on or after the 1st of November, 1856, and wishes only to make a lease not exceeding twenty-one years. But if his life estate should be limited to him in the settlement by way of use, as is now always done, a power may be conferred on him of leasing the land for any term of years, and under whatever restrictions may be thought advisable. On the exercise of this power, a use will arise to the tenant for the term of years, and with it an estate, for the term granted by the lease, quite independently of the continuance of the life of the tenant for life (n). But if the lease attempted to be granted should exceed the duration authorized by the power, or in any other respect infringe on the restrictions imposed, it would be void altogether as an exercise of the power, and might until recently have been set aside by any person having the remainder or reversion, on the decease of the tenant for life. But an act of parliament of the present reign (o) now provides, that such a lease, if made bona fide, and if the lessee have entered thereunder, shall be considered in equity as a contract for a grant, at the request of the lessee, of a valid lease under the power, to the like purport and effect as such invalid lease, save so far as any variation may be necessary in order to comply with the terms of the power. But in case the reversioner is able and willing, during the continuance of the lessee's possession, to confirm the lease without variation, the lessee is bound to accept a confirmation accordingly; and such confirmat ion may be by memorandum or note in writing, signed by the persons confirming and accepting respec-tively, or some other persons by them respectively thereunto lawfully authorized (p). And the acceptance of rent by the reversioner will be deemed a confirmation of the lease as against him, if upon or before such acceptance any receipt, memorandum or note in writing, confirming such lease, is signed by the person accepting such rent, or some other person by him thereunto lawfully authorized (q).