Sec. 330. Gifts in default of execution
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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 .
Sec. 330. Gifts in default of execution
The nature of a gift in default of execution of the power, "in default of appointment" as it is usually expressed, has been previously explained.26a Frequently such a gift is made in express terms, but though not expressed, such a power has frequently been implied by the courts.
It has in England been decided that even when the appointment is in favor of the very persons in favor of whom the property is limited in default of appointment, and gives them exactly the same interests as they would otherwise receive, they are to be regarded as taking by force of the appointment rather than of the limitations in the original instrument.26b In New York a contrary view has been asserted.26c
In the case of a power of appointment among a certain class, instead of regarding it as a power in the
St. 198; Myrick v. Williamson, 190 Ala. 485, 67 So. 273.
26. Wolf v. Hines, 93 Ga. 329, 20 S. E. 322; Griffin v. Griffin, 141 111. 373, 3 N. E. 131; Price v. Hay, 22 Ind. 18; Guarantee & Trust Co. v. Jones, 103 Tenn. 245, 58 S. W. 219.
26a. Ante, Sec. 315.
That one to whom a gift is made in default of appointment takes a vested estate, see Sugden, Powers, 622; Farwell, Powers, 310; Doe v. Martin, 4 Term. Rep.
39; Arnold v. Southern Pine Timber Co., 58 Tex. Civ. App. 186, 123 S. W. 1162; ante, Sec. 137, note 83.
26b. Sweetapple v. Horlock, L. R. 11 Ch. Div. 745.
26c. In re, Lansing's Estate, 182 N. Y. 238, 74 N. E. 882; Matter of Hoffman's Estate, 161 N. Y. App. Div. 836, 146 N. Y. Supp. S98, and apparently to this effect are: Southern Pine Timber Co. v. Arnold, - Tex. Civ. App. -, 139 S. W, 917, 1167; Boyce v. Waller, 9 Dana. (Ky.) 478.
When the instrument creating the power contains an express gift to a class, with a power to determine, by appointment, in what shares and in what manner the members of the class are to take, the property vests, until the power is exercised, in all the members of the class. Consequently, the death of one of the class before the time for the appointment does not divest his interest, and it goes to his heirs or devisees.31 On the sell for purposes of division, and the persons entitled agree to a division.37 So, in the case of a power to sell in order to obtain funds for the use or support of a person named, the power will cease upon the death of such person.38
27. Sugden, Powers, 591; The cases are fully considered by Professor John C. Gray, in an article in 25 Harv. Law Rev. 1 et seq. See also the extensive collection of cases in an article by Professor John R. Rood, in 15 Mich. Law Rev. 386 et seq.
28. McGaughey v. Henry, 15 B. Mon. (Ky.) 383; Govin v. Gordon, 38 Miss. 205; Loosing v. Loosing, 85 Neb. 66, 122 N. W. 707; Dom-inick v. Sayre, 3 Sandf. (N. Y.) 555; Stableton v. Ellison, 21 Ohio St. 527; Milliken v. Welliver, 37 Ohio St. 460; In re McNeile's Estate, 217 Pa. 179, 66 Atl. 328; Withers v. Yeadon, 1 Rich. Eq. (S. C.) 331; Cathey v. Cathey, 9 Humph. (Tenn.) 470; Rogers v. Rogers, 2 Head (Tenn.) 660.
29. See Sugden, Powers, 592; Farwell, Powers, 527; Saulsbury v. Denton, 3 Kay. & J. 535.
30. Roddy v. Fitzgerald, 6 H. L. Cas. 823, 856; Atkinson v. Dow-ling, 33 S. C. 414, 12 S. E. 93; Farwell, Powers, 533.
31. Farwell, Powers, 534; Lambert v. Thwaites, L. R. 2 Eq. 151, 5 Gray's Cas. 386; Caster-ton v. Sutherland, 9 Ves. 445; Wilson v. Duguid, 24 Ch. Div. 244, 392; Rhett v. Mason's Ex'x, 18 Grat. (Va.) 541; Carson v. Carson, 62 N. C. 57. See Govin v. Gordon, 38 Miss. 205. So, in Lambert v. Thwaites, supra where the property was, at the death of a life tenant, to be divided among all such tenant's children in such shares as he should declare by will, it was decided that, he not having appointed the shares by will, the surviving children, and also the devisees of a deceased child, were
[Sec. 331 other hand, if the instrument creating the power does not contain an express gift of the property to a class, but merely a power to A to give it, as he may think fit, among the members of that class, the law implies an intent to give it, in default of appointment, to those only of the class to whom it might have gone under an exercise of the power; and consequently, if the power could be exercised by will only, the heir, devisee, or representative of one of the class who dies during the donee's life is not entitled to share.32
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