I

"The money I had with my sister, Mrs. Mann, was left to me. let my late husband have it when he was in difficulties as security for money. He never took it, and wrote the inclosed for me to keep to prove what I have written.

"If I die suddenly, I wish my eldest son, Robert Bruce Kennard, to have it and the money that I have saved in my iron safe. My intention is to make it over to him legally, if my life is spared.

"January, 1870."

"M. A. Kennard.

Mrs. Kennard was taken ill on the 21st of March, 1870, and died on the 23d without making any other disposition of her property by will or otherwise.

The above freehold and leasehold properties were the only property, real or personal, which Mrs. Kennard ever held jointly with Mrs. Mann. It was admitted that by "Bruce" was intended Robert Bruce Kennard.

The money saved by Mrs. Kennard in her iron safe was £545.

Robert Bruce Kennard filed his bill for administration of Mrs. Kennard's personal estate, and for a declaration of his rights in respect of the leaseholds and the £545, under the deed of the 6th of December, 1842, and the memorandum of January, 1870. As he was heir-at-law of his mother no question arose as to his right to the freeholds.

The Master of the Rolls made a decree declaring that the document in the bill mentioned, dated "January, 1870," and signed "M. A. Kennard," operated as an effectual appointment under the indenture of the 6th of December, 1842, of the property of M. A. Kennard comprised in that indenture, but did not pass the money deposited by Mrs. Kennard in the iron safe.

Howard John Kennard, the administrator, and one of the next of kin of Mrs. Kennard, appealed from this declaration.

SIR W. M. JAMES, L. J. I am of opinion that the decision of the Master of the Rolls is quite right. In favor of purchasers or children the court relieves against the defective execution of a power, provided it sufficiently appears that there was an intention on the part of the donee to give the property which he had power to dispose of. Here the lady had power to give the property by an instrument sealed and delivered. By an instrument not sealed and delivered she expresses her intention that her son shall have the property which is subject to the power, and the case is one in which a Court of Equity will relieve against the defective execution. In Garth v. Townsend I considered that, upon the true construction of the instrument, there was no intention to give the property, but only to request the persons taking it in default of appointment to make a certain application of it, without legally binding them to do so.

SIR G. MELLISH, L. J. I am of the same opinion. A doubt which I felt, whether this instrument was not intended to be a will, and wheth

er an instrument intended to operate as a will, but incapable of doing so, could operate in another way, has been removed during the argument. The donee of the power expresses an intention to give the property by a more formal instrument, but still shows her intention to give it. She means in any event to give it, but to do so by a more formal instrument if her life is spared.18

13 See In re Kirwan's Trusts, L. R. 25 Ch. D. 373, 380, where the court in holding that it could not treat as a deed an instrument appearing on its face to be a codicil, but not properly attested for the purpose of supplying a defective execution said: "It is said that nevertheless, as this power might be executed by deed or will, the court may treat it as a valid execution by deed. For that the case of Kennard v. Kennard was referred to, where the power was in effect by deed or will, and a memorandum was left by the appointor which contained the words: 'If I die suddenly I wish my eldest son, Robert Bruce Kennard, to have it' (which is explained to be 'the money I had with my sister, Mrs. Mann,' meaning the money over which she had a power of appointment), 'my intention is to make it over to him legally if my life is spared.' That memorandum was dated in 1870, after the Wills Act, and the question was whether that memorandum, not being attested, was a good execution of the power, and it was held to be a good execution of the power, being in favour of a child. But upon what ground? Was it a good execution of the power because the instrument was not a will at all, but a memorandum, the formalities of a deed being supplied, or was it a memorandum which was considered to be a will and yet was treated as a deed? It seems to me a very strong thing indeed if the memorandum was really a testamentary document, to say, after the provision in the Wills Act that 'no appointment made by will in exercise of the power shall be valid unless the same be' in effect attested by two witnesses-that the defect could be supplied, and I must read this decision as meaning not that the memorandum being considered to be a testamentary document was in equity turned into a deed, but that the Court did not consider that the document was testamentary, but treated it as a mere memorandum which might, by aid of the Court of Equity, be turned into a deed, by supplying the defective execution. I think that appears to be the case from the language of both the judgments, but more especially from the language of Sir George Mellish."

CHAPTER XXIX

EXCESSIVE EXECUTION

KENWORTHY v. BATE.

(Court of Chancery, 1802. 6 Ves. Jr. 793.)

By indentures of settlement, dated the 29th of September, 1753, in consideration of the marriage of Bartholomew and Ann Penny estates of Bartholomew Penny were conveyed to trustees and their heirs, to the use of Bartholomew Penny for life; remainder to the use of Ann Penny for life, for her jointure and in bar of dower; and immediately after the decease of the survivor of them then to the use of such child or children of said Bartholomew Penny on the body of said Ann his wife begotten or to be begotten as the said Bartholomew Penny should in and by his last will and testament in writing under his hand and seal duly executed give, direct, limit, and appoint: and, for want of such direction, limitation, and appointment to the use of the first son of the body of Bartholomew Penny on the body of said Ann, &c., and the heirs of the body of such first son; with similar remainders to the use of the second, third, fourth, and all and every other, son and sons successively, and remainders over; with the ultimate remainder to Bartholomew Penny and his heirs.

Bartholomew Penny, having survived his wife, died in 1798; having had by her, besides other children who died under age and unmarried, three sons and two daughters: viz. Thomas George Penny, William Theyer Penny, Elizabeth Mary Guillandeau, Ann Aubert, and Bartholomew Penny. By his will, dated the 10th of December, 1795, reciting the settlement and the power therein contained, he gave, devised, and bequeathed, all the estates so settled and all the rest and residue of his estates real and personal to James Bate the elder and James Bate the younger, to sell and dispose of the estates above mentioned as soon as convenient after his decease; and. the net produce thereof together with the net produce of the remainder he should die possessed of he willed to be divided among his children; and he thereby gave to his son Thomas George Penny one shilling, to be paid within twelve months after his decease; to his son William Theyer Penny £500; to his daughter Elizabeth Mary Guillandeau £500 for her sole and separate use. The rest and residue of all his effects he willed to be divided into four equal parts; and he gave one fourth thereof to William Theyer Penny, one fourth part

thereof to Elizabeth Mary Guillandeau for her separate use; one fourth part thereof to Ann Aubert for her sole and separate use; and the remaining fourth part to Bartholomew Penny.

Bartholomew Penny, the youngest son, died in the life of his father. In December 1799, William Theyer Penny became a bankrupt; and the bill was filed by his assignees; suggesting, that Thomas George Penny, the eldest son, went to the East Indies in 1772, and for upwards of twenty-seven years had not been heard of; and praying, that if the Court shall be of opinion, that the estates are unappointed, the Defendant Bate may be decreed to deliver up the settlement; and that a Receiver may be appointed, &c.

The Defendants insisted, that the will of 1795 was a good execution of the power; and that by a prior will, dated the 1st of November, 1792, the testator gave, devised, and bequeathed, all the settled estates to Elizabeth Mary Guillandeau and her heirs for ever; and she insisted, that if the will of 1795 was not a good execution of the power, the will of 1792 was not revoked thereby; or, if revoked as a will, it was good as an instrument of appointment.

Upon an inquiry directed the Master's Report upon the circumstances stated, that Thomas George Penny died in 1775 without issue.

THE MASTER OF THE ROLLS [SIR WILLIAM GRANT]. It does not appear, that this case in specie has ever occurred; but in principle I cannot distinguish it from those, that have been cited. Three of those cases must have been ill decided, if it is true, that substantially a power to appoint land can be executed in no other way than by limiting the land itself. In Thwaytes v. Dye [2 Vern. 80] the limitation was precisely the same as this: the power was to appoint the land itself; and the argument arose as much as it does here, that beyond that the party could not go; that there was no election, except to do nothing or to give the land. He had a power to give the land: but he gave them nothing in the land; but instead of that made the /disposition stated in the Report. The objection was taken in the words, in which it was taken here. That was not a case in which he had directed a sale; but the effect of the decision, which was upon a plea, goes the length of showing, that a power to appoint land may in substance be executed without giving the land itself. If the heir's objection was a good one, it would have prevailed undoubtedly. In Roberts v. Dixall [2 Eq. Cas. ab. 668] also the power was to appoint land. The party did not appoint the land; but charged a sum of money upon the land; and it was held substantially an execution of the power. It was not contended to be so literally and formally. As an illustration of that Lord Hardwicke said, he might have directed a portion of the land to be sold, and the money to be paid to his daughters; and what he did was equivalent.

The case of Long v. Long [5 Ves. Jr. 445] determines this; and to enable a person to sell land it is not necessary to have that author

ity expressly given to him. There the party had no right to sell, but had a right to charge. There was a stronger case than this; for a power to charge is in its nature a more circumscribed power than a power to give land. In this case there is an absolute power to give the fee-simple, the whole, out and out, to any one of the children, or to divide it among them. That is a more extensive power; for the implication from a charge is generally, that something is to be left. The terms of the settlement in the other case gave room in a peculiar degree for that implication; for it might be contended, that was only a power to charge; and the estate was to be in the possession of the eldest son. Of necessity it was to be implied, that the estate was to be permitted to remain in the eldest son, to bear the charge; and therefore nothing but a charge could be intended. But it was held, that as there was nothing to restrain him in the amount, and he might have charged the utmost value, he had done only what was equivalent to that; and if the argument as to the eldest son's receiving £100, that it amounted to the same as if the charge had been to the full value except £100, is used, what is the argument here? The conclusion there was, that therefore he might sell the land; and give the son £100, instead of permitting land of that value to continue in his possession. It was supposed, he had all he was entitled to, if he had in money all he could have claimed in land. That is therefore a direct determination, that a power to charge includes a power to sell. Then, does not a power to give include a power to sell for the purpose of giving the money instead of the land? It is impossible not to collect from these cases a principle, that will bear out what is contended by the Defendants; though the case has not precisely occurred in terms.

Declare the appointment well made, &c.1

PARKER v. PARKER.

(Court of Chancery, 1714. Gilb. 168.)

Mr. Parker had a power to raise £7,000 for younger children by deed or will, executed in the presence of three witnesses; afterwards by will, executed in the presence of two witnesses, he charged the premises with £8,000 for his younger children, and 'twas decreed good for the £7,000.2

1 A fortiori, where the power is to appoint "in such manner and form" as the donee determines, an appointment to trustees in trust for the objects of the power is a proper appointment. Trollope v. Linton, 1 S. & St. 477; Thornton v. Bright, 2 Myl. & Cr. 230.

But see Busk v. Aldam, L. R. 19 Eq. 16 (1874).

2 So, under a power to lease for a given number of years, a lease for a longer term is valid and enforceable in equity for the given number of years, Campbell v. Leach, Ambl. 740, 749 (1775); but wholly void at law, Roe v. Prideaux, 10 East, 158 (1808).