This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In certain cases, when an attempted appointment is bad at law because of a failure to make it in the manner required by the power, equity will aid the defective execution by compelling a transfer of the land to the apamong members of a class was exercised by appointing life estates to the members of the class, with remainders to their children, while the appointments by way of remainder were held to be invalid, the appointments for life were treated as valid, and the reversionary interest was divided among the members of the class. Horwitz v. Norris, 49 Pa. St. 213. But that an appointment was entirely void in such case, in view of testator's apparent intention, see Myers v. Safe Deposit & Trust Co., 73 Md.
413. And see Little v. Bennett, 58 N. C. 156.
89. See Loring v. Blake, 98 Mass. 253; Varrell v. Wendell, 20 N. H. 231.
90. Sugden, Powers, 521.
91. Sugden, Powers, 519; Campbell v. Leach, Amb. 740.
92. Sugden, Powers, 515, 526; Farwell, Powers, 343; Sadler v. Pratt, 5 Sim. 632; Ready v. Kears-ley, 14 Mich. 215; Hillen v. Iselin, 144 N. Y. 365, 39 N. E. 368; Pepper's Appeal, 120 Pa. St. 235, 6 Am. St. Rep. 702, 13 Atl. 929.
The defects thus aided in equity are those which are not of the essence of the power, but appertain to the form of the instrument by which the power is executed.96 Thus, relief will be given when the power calls for an execution by an instrument under seal, and the seal is omitted,97 or when the instrument by which the power is sought to be executed has less than the proper number of witnesses.98 Where the power should, by its terms, be executed by deed, and is, instead, executed by will, equity will relieve;99 but this will not be done if the power should be executed by will, and, instead, is executed by deed, since the intention that the power shall continue revocable is defeated by such an execution.1
93. Sugden, Powers, 533; Williams, Real Prop. (21st Ed.) 386; Toilet v. Toilet, 1 White & T. Lead. Cas. Eq. 227, notes; Beatty v. Clark, 20 Cal. 11; Howard v. Carpenter, 11 Md. 259; Mutual Life Ins. Co. v. Everett, 40 N. J. Eq. 345; Harker's Appeal. 121 Pa. 192, 1 L. R. A. 861, 15 Atl. 500.
94. Sugden, Powers, 534; Foth-ergill v. Fothergill, 1 Eq. Cas. Abr. 222, pi. 9; Ward v. Stanard, 82 X. Y. App. Div. 386, 81 X. Y. Supp. 906; Porter v. Turner, 3 Serg. & R. (Pa.) 108. The defect will be supplied in favor of a child, even to the prejudice of another child, if the latter is otherwise provided for. Farwell. Powers, 391; Morse v. Martin, 34 Beav. 500. The execution will not be aided in favor of a relative other than a child, such as a brother (Goodwyn v. Goodwyn, 1 Ves. Sen. 228), a grandchild (Perry v. Whitehead, 6 Ves. Jr. 544; Lynn v. Lynn, 33 111. App. 299), or a nephew (Marston v. Gowan, 3 Bro. C. C. 170; Wooster v. Cooper, 59 N. J. Eq. 204, 45 Atl. 381).
95. Sugden, Powers, 534; Say-er v. Sayer, 7 Hare 377; Piggot v. Penrice, Finch, Prec. Ch. 471.
96. Relief has been given when one only of two trustees executed a conveyance. Coates v. Lunt, 210 Mass. 314, 96 N. E. 685.
97. Smith v. Ashton, 1 Ch. Cas. 263.
98. Wilkes v. Holmes, 9 Mod. 485; Sergeson v. Sealey, 2 Atk. 412; Schenck v. Ellingwood, 3 Edw. Ch. (X. Y.) 175; American Freehold Land Mortgage Co. v. Walker, 31 Fed. 103. In Mutual Life Insur. Co. v. Everett, 40 N.
A mere covenant or contract to execute has occasionally been considered in equity, in favor of the classes of persons before enumerated, as equivalent to an execution.2 And where a tenant for life, with power to make leases, agrees, for a valuable consideration, to make a lease, the agreement will be enforced against the remainderman, provided it be valid under the Statute of Frauds.3
J. Eq. 345, it was held that where a trustee was empowered to convey on a written request, and did convey on an oral request, equity would relieve against the defect.
99. Sugden, Powers, 558; Toilet v. Toilet, 2 P. Wins. 489; Sneed v. Sneed, Ambl. 64. But see Wooster v. Cooper, 59 N. J. Eq. 204, 227, 45 Atl. 381.
1. Farwell, Powers, 382; Wilks v. Burns, 60 Md. 64; Bent-ham v. Smith, 1 Cheves Eq. (S. C.) 33. And see Moore v. Dlmond, 5 R. I. 121; Thrasher v. Ballard, 33 W. Va. 285.
2. Sugden, Powers, 550. This doctrine has been frequently applied in the case of a covenant, by one having power to settle a jointure, to settle it in favor of his wife. Clifford v. Burlington, 2 Vern. 379; Fothergill v. Fothergill, 1 Eq. Cas. Abr. 222, pl. 9; Farwell, Powers, 585. A contract to exercise a power which is exercisable only by will is nugatory. ante, Sec. 322, note 41.
3. Shannon v. Bradstreet, 1 Schoales & L. 52; Blore v. Sutton, 3 Mer. 237; Howard v. Carpenter, 11 Md. 259.
On the same principle, where a power was given to a person to be executed after she arrived at the age of twenty-five, a covenant by her, for valuable consideration, to execute the power, made before she arrived at that age, was held to be a valid execution in equity after she attained that age. Johnson v. Touchet, 37 Law J. Ch. 25.
4. Farwell, Powers, 394 et seq.; McBride's Heirs v. Wilkinson, 29 Ala. 662; Smith v. Bowe, 38 Md. 463; Miller v. Palmer, 55
In the case of a power given to a married woman, the courts have shown a decided indisposition to aid its defective execution, the formalities imposed as to execution being presumably for her protection against the influence of her husband, and perhaps also against her presumed lack of business experience.5