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section 11, we may observe that it is doubted by some whether land can be effectually released at law from a judgment before execution; and although the validity of the doubt seems questionable (Prideau.c on Judgments, 4th Ed. p. 55), yet it would have been well had this section set the point at rest.
4. POWERS, (Secs. 12–18.)—The Act, from the 12th to the 18th section, is occupied by a variety of provisions on the subject of powers.
The 12th section takes away from settlors the right to fetter free dealing with their property, by requiring various and unusual solemnities to be observed on the execution of deeds of appointment. Under the old law the greatest licence existed with regard to this matter; and in the judgment delivered by Lord Ellenborough, in Hawkins v. Kemp (3 East, 410), the immateriality of these solemnities is forcibly expressed. It is true that relief against the defective execution of a power could be obtained in equity, in cases where some valuable or meritorious consideration in the appointee existed to call the Court into action; but, nevertheless, in many cases the result of the old strictness was that the intentions of persons executing powers were altogether defeated.
The old rule had, it may be thought, the good effect of allowing settlors to guard against any rash or hasty action on the part of those to whom they confided the allotment of their property; but, on the other hand, the great variety of the often meaningless checks devised by different settlors for that purpose, gave rise to the evil we have mentioned above, and which this act is intended to remedy. To have prescribed one uniform mode of execution, which should be necessary and sufficient in all cases, as was done in the case of wills, by Lord Langdale's Act, seems to have been considered likely to give rise to displeasure, as a needless interference with the rights of property ; and the Legislature has not adopted such a course. Appointments will still be valid if made with the prescribed solemnities; and Courts of equity will still give effect to any written document, expressive of an intention to benefit persons having a moral claim on the donee of the power; but the present statute enacts that a deed executed in the ordi
nary manner, and in the presence of, and attested by, two or more witnesses, shall in all cases be a sufficient execution of any power of appointment not testamentary.
Our readers, being familiar with “Sugden on Powers,” will see at once that this section sweeps away, for the future, a variety of questions which formerly gave rise to considerable litigation, and of which some are even yet undecided. It seems, however, that questions are not unlikely to arise hereafter, as to what is to be considered the ordinary mode of executing and attesting deeds; for instance there may, at the present time, be a difference of opinion, whether the attestation clause of deeds “ordinarily” expresses them to have been signed, and thus questions analogous to those in Wright v. Wakeford (17 Ves. 454), and Doe v. Burdett (10 Cl. and F. 340), may arise under the new law. Moreover, the propriety of requiring the execution of a power to be witnessed and attested by two witnesses, has been much questioned. A burden is thereby imposed which modern practice has thrown off, and the most experienced conveyancers of the present day merely provide that a power shall be executed by deed, or (in the case of a married woman) by a writing sealed and delivered, without requiring the attestation of even one witness. Practically, an appointment like any other deed is attested, but there is no ground in common-sense for requiring the attestation of a deed of appointment more than of any other deed.
The 13th section repeals a rule of law which wrought injustice in the case of Cockerell v. Cholmeley (10 B. and C. 564), where a tenant for life, without impeachment of waste, received part of the purchase-money in respect of the timber on a sale under a power, and the power was held not to have been well executed. A similar case is not likely to occur again ; but it is perhaps well that the recurrence of such a grievous wrong should be made impossible. It is right that the purchaser should
1 The best modern precedents in conveyancing follow this course. See the forms of powers of appointment in Davidson’s Conv., vol. 1, and Bythewood and Jarman's Conv., by Sweet, vol. 11. Mr. Prideaux in his Precedents, and Mr. Shelford in his late edition of Crabb's Conveyancing, have, however, adhered to the old practice of requiring two witnesses.
make good to the objects of the settlement the amount which they would have enjoyed had the settlor's intention been properly carried out; and the present section does this, while it leaves the purchaser in the enjoyment of the land.
The effect of a charge of debts in a will where no express means exist of carrying it into effect, has given rise to considerable litigation, and some of the decisions on the subject have been criticised' with no little warmth. We think that it is a pity that the Legislature did not take this opportunity of setting at rest the controverted question with regard as well to past as to future instruments. This, however, has not been done; but a series of provisions has been enacted (secs. 14–18), giving statutory powers of sale, in certain cases, to trustees and executors under wills coming into operation after the passing of the Act. Thus, when under such a will, lands charged with debts, or the payment of a legacy or specific sum, are devised to trustees, these trustees have a statutory power of sale over the whole estate, and if there be no devise to trustees, then the executors are invested with a like power. It niust be remembered that the principles laid down by the Master of the Rolls in Robinson v. Lowater (17 Beav. 592), Wrigley v. Sykes (21 Beav. 337), and Storry v. Walsh (27 L. J. ch. 338), are not directly affected by this statute; and therefore the powers which these and similar cases ascribed to executors will coexist along with those vested in them by these sections.
By the 16th section, any sale or mortgage under the act operates only on the estate and interest, whether legal or equitable, of the testator, and does not render it unnecessary to get in any outstanding subsisting legal estate. We are not aware that it has ever been supposed that the will of a testator, entitled in equity only, could give a power over the legal estate ; and the case of Doe v. Hughes (6 Exch. 223), seems to decide expressly that no power of sale over the legal estate can be ascribed by implication to executors, even when the testator
See particularly an article by Mr. Joshua Williams, in The Jurist of the 16th February, 1856 ; reprinted in a separate form in the following year.
was entitled at law; but the power given by this Act to executors, affects all the estate and interest of the testator, whether it be legal or equitable.
The powers we have been considering are given by sections 14, 15, and 16. The operation of sec. 14 is, by the actual wording of the section itself, confined to cases where the charge is created " by any will coming into operation after the passing of this Act." Section 15 applies only to the devolution of the powers given by the last section; and sec. 16 enacts, that where such a charge is created as is described in sec. 14, but there is no sufficient devise to trustees, the powers may be exercised by the executors of " such will."
of “such will." We should have thought that there could have been little doubt that such will ” meant such a will as is mentioned in sec. 14, namely, a will coming into operation after the passing of the Act; but, at any rate, the knotty point might have been easily settled by the addition of a few appropriate words. Another course, however, has been adopted ; and after sec. 17, which protects purchasers from the effects of an improper exercise of the powers, we find a section (18) which contains the following nonsense :
“The provisions contained in sections 14, 15, and 16, shall not in any way prejudice or affect any sale or mortgage already made, or hereafter to be made, under, or in
will coming into operation before the passing of this Act ;' but the validity of any such sale or mortgage shall be ascertained and determined in all respects as if this Act had not passed.” (!)
Now, putting sec. 16 out of the question, how is it possible that secs. 14 and 15, which apply only to wills coming into operation after the passing of the Act, can affect sales, &c., under wills which came into operation before the passing of the Act?
It would be a source of wonder had the profoundest and most experienced real property lawyer of the day committed this gross blunder ; but it is no source of wonder that it should have
1 " Coming into operation before the passing of this Act,” may be considered as grammatically correct in Parliament; elsewhere we should expect to find “ which shall have come into," &c.
been perpetrated in the House of Commons, where the abovequoted portion of section 18 was composed and foisted into the Act.
Though Lord St. Leonards is responsible for the rest of section 18, yet it is not happily worded. Secs. 14, 15, and 16, are not to "extend to a devise to any person or persons in fee or in tail, or for the testator's whole estate and interest, charged with debts or legacies.” The meaning no doubt is, that the sections in question are not to confer powers of sale or mortgage on trustees or executors, where the charged lands are devised in fee, &c., to any person for his own benefit; but, in order to attach any meaning at all to the words, it must necessarily be held that trustees are not persons.
5. INHERITANCE, (Secs. 19, 20.)-These sections are intended to prevent the recurrence of an injustice which, in one reported case (Doe v. Blackburn, 1 Moo. & R., 547), arose from the provision of the Inheritance Act of 1833, that descent should always be traced from the purchaser. It is clear that the heirs of the purchaser may have become extinct, although there may be persons claiming as heirs of the person last entitled by descent. For example, in the case we have quoted, the purchaser was a foundling who died intestate, leaving an only child, a son, who also died intestate. There were no heirs of the foundling, but there were persons who could have claimed as beirs of the son, ex parte maternâ, if he had taken by purchase and not by descent. These persons would seem to have a right to the land, although before the recent change no such right was recognised by the law. It is said that, inasmuch sec. 20 enacts that sec. 19 “shall be read as part" of the Inheritance Act of 1833, and does not save present rights, the law of inheritance as now altered must be taken as having been the law since the 1st of January, 1834; and, consequently, that persons in possession under the old law may be evicted unless they should happen to be protected by the Statute of Limitations. It would be a curious result of the present statute were Doe v. Blackburn tried over again; and such a result is not impossible, if some person under disability, VOL. VIII. NO. XVI.