Remarks on the act.
(x) Stat. 23 & 24 Vict. c. 145, s. 10. (y) Sect. 32.
(z) Lord St. Leonards, Sugd. Pow. 877, 8th ed.
Other kinds of special powers occur where the persons who are to take estates under the powers are limited to a certain class. Powers to jointure a wife, and to appoint estates amongst children, are the most usual powers of this nature. When powers are thus given in favour of particular objects, the estates which arise from the exercise of the power take effect precisely as if such estates had been inserted in the settlement by which the power was given. Each estate, as it arises under the power, takes its place in the settlement in the same manner as it would have done had it been originally limited to the appointee, without the intervention of any power; and, if it would have been invalid in the original settlement, it will be equally invalid as the offspring of the power (e).
As to sales reserving minerals.
When the objects are limited.
The estates under the power take effect as if they had been inserted in the settlement.
(a) Buckley v. Howell, 29 Beav. 546.
(b) Stat 25 &26 Vict. c. 108. (c) Sect. 1.
(d) Sect. 2.
(e) Co. Litt. 277 b, n. (1), VII. 2.
It is provided, by the Succession Duty Act, 1853, that where any person shall have a general power of appointment, under any disposition of property taking effect upon the death of any person, he shall, in the event of his making any appointment thereunder, he deemed to be entitled, at the time of his exercising such power, to the property thereby appointed, as a succession derived from the donor of the power; and where any person shall have a limited power of appointment, under a disposition taking effect upon any such death, any person taking any property by the exercise of such power shall be deemed to take the same as a succession derived from the person creating the power as predecessor (f). But where the donee of a general power of appointment shall become chargeable with duty, in respect of the property appointed by him under such power, he shall be allowed to deduct from the duty so payable any duty he may have already paid in respect of any limited interest taken by him in such property (g).
Powers may generally speaking be destroyed or extinguished by deed of release made by the donee or owner of the power to any person having any estate of freehold in the land; "for it would be strange and unreasonable that a thing, which is created by the act of the parties, should not by their act, with their mutual consent, be dissolved again" (A). The exceptions to this rule appear to be all reducible to the simple principle, that if the duty of the donee of the power may require him to exercise it at any future time, then he cannot extinguish it by release (i). By the act for the abolition of fines and recoveries (k), it is provided (l), that every married woman may, with the concurrence of her husband, by deed to be acknowledged by her as her act and deed according to the provisions of the act (m), release or extinguish any power which may be vested in or limited or reserved to her, in regard to any lands of any tenure, or any money subject to be invested in the purchase of lands (n), or in regard to any estate in any lands of any tenure, or in any such money as aforesaid, as fully and effectuallv as she could do if she were a feme sole. Our notice of powers must here conclude. On a subject so vast, much must necessarily remain unsaid. The masterly treatise of Sir Edward Sugden (now Lord St. Leonards), and the accurate work of Mr. Chance on Powers, will supply the student with all the further information he may require.
The Succession Duty Act, 1853.
Powers may be extinguished by release.
(f) Stat. 16 & 17 Vict. c. 51, s. 4. See lie Barker, Exch. 7 Jur., N. S. 1061; Attorney-General v. Floyer, H. of Lords, 9 Jur., N. S. 1; 9 H. of L. Cas. 477.
(g) Sect. 33.
(h) Albany's case, 1 Rep. 110 b, 113 a; Smith v. Death, 5 Mad. 371; Horner v. Swann, Turn. & Russ. 430.
2. An executory interest may also be created by will. Before the passing of the Statute of Uses (o), wills were employed only in the devising of uses, under the protection of the Court of Chancery, except in some few cities and boroughs where the legal estate, in lands might be devised by special custom (p) In giving effect to these customary devises, the courts, in very early times, showed great indulgence to testators (q); and perhaps the first instance of the creation of an executory interest occurred in directions given by testators, that their executors should sell their tenements. Such directions were allowed by law in customary devises (r); and in such cases it is evident that
Release of powers by married women.
Creation of executory interests by will.
Directions that executors should sell binds devisable by custom.
(i) See 2 Chance on Powers, 584. (k) Stat. 3 & 4 Will. IV. c. 74. (l) Sect. 77. (m) Sec ante, p. 222. (n) Sec ante, p. 159.
(o) 27 Hen . VIII. c. 10.
(p)Ante, p. 195.
(q) 30 Ass. 183 a; Litt. sec. 586.
(r) Year Book,9 Hen .VI.24 b, Babington: - "La nature de devis the sale by the executors operated as the execution of a power to dispose of that in which they themselves had no kind of ownership. For executors, as such, have nothing to do with freeholds. Here, therefore, was a future estate or executory interest created; the fee simple was shifted away from the heir of the testator, to whom it had descended, and became vested in the purchaser, on the event of the sale of the tenement to him. The Court of Chancery also, in permitting the devise of the use of such lands as were not themselves devisable, allowed of the creation of executory interests by will, as well as in transactions between living persons (s). And in particular directions given by persons having others seised of lands to their use, that such lands should be sold by their executors, were not only permitted by the Court of Chancery, but were also recognized by the legislature. For, by a statute of the reign of Henry VIII. (t), of a date previous to the Statute of Uses, it is provided, that in such cases, where part of the executors refuse to take the administration of the will and the residue accept the charge of the same will, then all bargains and sales of the lands so willed to be sold by the executors, made by him or them only of the said executors that so doth accept the charge of the will, shall be as effectual as if all the residue of the executors, so refusing, had joined with him or them in the making of the bargain and sale.