Where the title depends on the exercise of a power of appointment, it is the duty of the conveyancer advising the purchaser to ascertain that the power has been or will be in all respects well executed. The general rule is that in the exercise of a power ail conditions prescribed in the instrument creating the power must be strictly observed; and in this respect no distinction is made between matters apparently sub-Mantial, such as the nature of the instrument by which the power is to be executed or the requirement of the consent of any person to its execution, and formalities like the number of witnesses by which the executing instrument is required to be attested (a). And the rule is that any instrument showing an intention to exercise the power, but not exactly complying with the terms and conditions imposed by the donor of the power, is void altogether as an exercise of the power (b).

Title depending on exercise of a power of appointment.

(a) Hawkins v. Kemp, 3 East, 410, 440, Holmev. Coghill, 7 Ves 499, 506; Reid v. Shergold, 10 Ves. 370; Marjoribanks v. Hovenden, 1 Drury, 11; Bug. Pow. 206 sq. 8th ed.; Farwell on Powers, 128 sq., 2nd ed; Wms. Real Prop. 384 sq., 21st ed.

(b) See previous note; Barretto v. Young, 1900, 2 Oh. 339. This rule. is modified in equity, though not at law, by the equitable doctrines mentioned below as to aiding the defective execution of powers; and is further modified in the case of powers of leasing by the Leases Acts, 1849 and 1850 (stats. 12 & 13 Vict. o. 26; 13 & 14 Vict. c. 17), under which an attempted exercise of a power of leasing, which is invalid at law for want of strict compliance with the terms of the power, may be considered in equity as a contract for the grant of a valid lease under the power, and leases prematurely granted in exercise of a power are made valid if the lessor's estate endure until the time when the lease might have been well granted: Wms. Real Prop. 392, 393, 21st ed.

Under the Wills Act (c), however, wills executing powers must be executed and attested by two witnesses in the manner therein prescribed for the execution of all wills (d); but if so executed and attested, they operate as valid executions of the power, notwithstanding that the instrument creating the power may have required some additional or other form of execution or solemnity.

(c) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 10.

(d) This rule must be strictly observed in the case of all wills exercising powers to dispose of land in England, leasehold as well as freehold or copyhold, whether the testator were domiciled in England or elsewhere; see Murray v. Champernowne, 1901, 2 Ir. 230; Pepin v. Bruyere 1902, 1 Ch. 24; and also in the case of all wills exercising an English power to dispose of personal chattels, and made in England by persons domiciled in England (whether British subjects or aliens). By an English power is meant one created by an instrument intended to be construed according to English law and to confer a power exercisable according to the rules of English law. Wills exercising English powers to dispose of personal chattels are valid, as an exercise of the power, if executed in accordance with the requirements of the Wills Act, whatever be the testator's domicile and although (where he is domiciled out of England) the will is invalid by the law of the place of his domicile; Murphy v. Deichler, 1909, A. C. 446. But wills made by persons domiciled out of England (whether aliens or British subjects), exercising powers to dispose of personal chattels, complying with the formalities (if any) required by the terms of the power, and otherwise executed in accordance with the law of the place of the testator's domicile are valid, as an exercise of the power, although they do not comply with the requirements of the Wills Act; D'Huart v. Hark-ness, 34 Beav. 324; Re Price, 1900,1 Ch. 442; Barrettov. Young, 1900, 2 Ch. 339; Re Walker, 1908, 1 Ch. 560. Cf. and distinguish Re D' Este's Settlement Trusts, 1903, 1 Ch. 898; Re Scholefield, 1905, 1 Ch. 4 08, settled, 1907. 1 Ch. 664. As to the wills of British subjects exercising a power over personal chattels and not complying with the Wills Act but admissible to probate as wills solely by virtue of Lord Kings-down's Act (stat. 24 & 25 Vict. c. 114, s. 1), see Re Kiruan's Trusts, 25 Ch. D. 373; Hummel v. Hummel, 1898, 1 Ch. 642; Re Price, 1900, 1 Ch. 442, 448-450; Dicey. Conflict of Laws, 691-696, 821 sq., 2nd ed. It has been decided in Ireland that a power to dispose of the proceeds of sale of land settled on trust for sale is for the purposes of the doctrine here discussed a power to dispose of land; Murray v. Champernowne, ubi sup. But it seems questionable whether this is correct, as an interest in the proceeds of sale of land settled on trust for sale is for all other purposes treated in English law as personalty; see Forbes v. Steven, L. R. 10 Eq. 178; A.-G. v. Hubbuck, 13 Q. B. D. 275; A.-G. v. Johnson, 1907, 2 K. B. 885. The same remark is applicable to a beneficial interest in a definite sum of money directed to be raised out of land, such as a portion.

And under Lord St. Leonards' Act (e) powers of appointment, exercisable by deed or by any instrument in writing not testamentary, may be well exercised, subsequently to the Act, by a deed executed in the presence of and attested by two or more witnesses, in the manner in which deeds are ordinarily executed and attested, although the instrument creating the power may have required some additional or other form of execution or attestation, or solemnity. It will be observed that, where a power is required to be executed by a deed or writing attested by two witnesses, it is not well executed by a deed attested by one witness only or unattested (f). Such a defect of execution is not aided by Lord St. Leonards' Act. And it is expressly provided (g) that this statutory provision shall not operate to defeat any direction in the instrument creating the power that the consent of any person shall be necessary to a valid execution, or that any act shall be performed, in order to give validity to any appointment having no relation to the mode of executing and attesting the instrument. Nothing contained in the Act shall prevent the donee of a power from exercising it conformably to the power by writing or otherwise than by an instrument executed and attested as an ordinary deed(h). Equity will aid the defective execution of a power, if the intended appointee be a purchaser from or the wife or a child or a creditor of the person intending to exercise the power, or if the appointment be for a charitable purpose (i); and this relief is granted, notwithstanding that the person entitled in default of appointment was a purchaser, and even against a purchaser from him, of the estate limited in default of appointment (k). But such relief is only afforded to cure defects which are not of the essence of the power, such as the want of a seal or of the proper number of witnesses, or execution by will of a power to appoint by deed (l). And equity will not uphold an act which will defeat what the person creating the power has declared, by expression or necessary implication, to be a material part of his intention (m). No relief will therefore be given against the exercise by deed of a power to appoint by will (n), or against the exercise by will of a power to appoint by deed to be executed before a specified event, which happened in the lifetime of the person purporting to appoint by will (o). It must not be forgotten that where a power to appoint the legal estate in lands is exercised defectively, but so that equity will grant relief against the defective execution, the legal estate remains outstanding in the person entitled in default of appointment, and must be got in if it be desired to make title under the appointment (p).