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there is a gift by implication to the children; while if there is a gift to A. for life, and on his death to his children in such proportions as A. shall appoint, there is considered to be a direct gift to the children, subject to the power. In the former case, the children take by implication; in the latter, by direct gift.49 But there is a recent case which holds that it is only in the latter class of cases that the children can take, that is, that they take only by direct gift, that practically there is never any gift to them by implication. The proposition is a startling one, and the case must be considered carefully.
It is In re Weekes' Settlement.50 By a marriage settlement land was settled to uses in favor of the intended wife for life, and on her death, as she should by will appoint, and in default of appointment, to B. By another settlement of even date, personal property was settled in favor of the husband and wife for their lives, and on the death of the survivor, as the survivor should by deed or will appoint, and in default of appointment, to the children of the marriage. The wife died, and by her will gave to the husband a life interest in the land, and also gave him a power to dispose of the land and other property by will amongst the children "in accordance with the power granted to him as regards the other property which I have under my marriage settlements." There were children of the marriage. The husband died without exercising the power. The question was whether B. or the children were entitled to the land. Romer, J., held that B. was entitled.
If the general power given to the wife was not exercised, there was an express gift over in default of appointment to B.; and it may be, perhaps, the law that if a general power is exercised by giving a special power to appoint to a class, the implied gift over to the objects of the special power which would ordinarily be raised is displaced by the express gift in default of appointment under the general power. Whether such displacement would take place seems doubtful, and although Romer, J., refers to the fact that there was an express gift to B., on default of appointment under the general power,51 he does not rest his decision on this, but discusses the general question whether, upon a special power to appoint to
49 Sugden, Powers, 8 ed., 591, 597; Farwell, Powers, 2 ed., 472, 474; Leake, Land Law, 391.
a class, there is an implied gift over to the objects of the power; and he decides that there is no such implied gift, but that the objects of the power take in default of appointment only when an express gift to them, or the creation of a trust for them, in default of appointment, can be extracted from the language used by the settlor or testator. He says:
"You must find in the will an indication in fact that the power should be regarded in the nature of a trust only a power of selection being given, as, for example, a gift to A. for life, with a gift over to such of a class as A. shall appoint."
The only case cited by the learned judge in support of his position is the Irish case of Healy v. Donnery.52 Romer, J., says that in that case there was a life estate with a power to appoint, but, with submission, that is not so. What the Irish Court of Exchequer held was that the whole legal interest was in the plaintiff, and that, therefore, he could maintain a suit for ejectment against a tenant for years who had failed to pay his rent.
The learned judge then goes on to refer to nine cases in which there was held to be a gift over to the objects of an unexercised power, and he attempts to distinguish them on the ground that in them there was a direct gift to the objects of the power, subject to a power of distribution, and that they took by virtue of the direct gift, and not by implication.
(1) In Brown v. Higgs 53 the testator "authorized and empowered" J. to receive certain rent and to dispose of it, 100l. annually to himself and to employ the remainder to such children of the testator's nephew S. as J. should think most deserving and would make the best use of it, or to the children of the testator's nephew W. J. did not exercise the power. It was held that the children of S. and W. took. Romer, J., quotes passages from the opinions of Lord Alvanley, M. R., and Lord Eldon, C., but these learned judges speak of the question being whether the power was a simple power or a power in trust, and there is nothing to show whether the trust was to be effected by an implied gift or an express gift. The doctrine that the taking in default of appointment must be either by an express or implied gift was not then clearly apprehended.
3 Ir. C. L. 213 (1853). The case is stated p. 11, ante.
Ves. 708 (1799), 5 Ves. 495 (1800), 8 Ves. 561 (1801).
(2) In Burrough v. Philcox 54 a will directed that on certain contingencies the testator's property should "be disposed of as shall be herein after mentioned, (that is to say)" A. should have power by will to dispose of the property to one or more of the testator's nephews and nieces and their children as A. should think proper. The power was not exercised. Lord Cottenham, C., held that the nephews and nieces and their children took in default of appointment. He said:
"When there appears a general intention in favour of a class and a particular intention in favour of individuals of a class to be selected by another person, and the particular intention fails from that selection not being made, the court will carry into effect the general intention in favour of the class."
But whether the intention is carried into effect by considering that there is an implied gift or that there is an express gift, the Chancellor does not say.
(3) In Witts v. Boddington 55 a testator gave to his wife during her life the enjoyment of his watches, rings, jewels and plate and all his diamonds, etc., with an exclusive power for her, by deed or will, to give the same to the children of M., who was his only daughter, but if no such children were alive at his wife's death, then he desired her to give or leave the same to some one or more of his own relations. The wife did not exercise the power as to some of the articles. It was held that the children of the daughter took. Romer, J., disposes of this case by saying that the will was "very peculiar."
(4) In Forbes v. Ball 56 a will said: "I give to A. C. 500 l., and it is my will and desire that A. C. may dispose of the same among her relations, as she by her will may think proper." Sir William Grant, M. R., said that there was a gift to the wife's relations. Romer, J.'s comment on this case is that such gift over was by force of the words "my will and desire."
(5) In Birch v. Wade 57 the same words "will and desire" were used, and Romer, J., again says that it was by force of these words that there was a gift in default of appointment. But as to this a remark of Kenyon, M. R., in Pierson v. Garnet 58 is very weighty. He says: 59
"It would be a lamentable case, if this court were to raise a distinction upon slight words, such as peto, rogo, fidei tuæ commendo, and such expressions of the civil law; and if the decisions were to turn upon such grounds, property would be very vague."
(6) In In re Caplin's Will 6o a testator, after giving his wife a life interest in a trust estate, directed that on her death a part of the estate should be paid to such of the relations and friends of the wife as she should by will appoint. It was held by Kindersley, V. C., that if no appointment was made, there was a gift over to the objects of the power. Romer, J., sustains this case on the same ground upon which he puts the other cases, that it was "a gift to a class or such of a class as might be selected by the donee." He admits that there was "a general statement" in In re Caplin's Will which "went beyond the case." The "general statement" is this:
"There being then a life estate in [the wife] with a power to appoint by will to her relations, and no gift over in default of appointment, I must hold that there is an implied trust in favour of the objects of the power."
(7) In Re White's Trusts 61 a testator gave property to trustees in trust for his son R. for life, and then to R.'s children, and then proceeded thus: "Should my said son die childless, I confide in the said trustees for applying" the trust property "to the benefit of such other of my children as they may think fit, for the interest and good of my family." R., the son, died childless, and the trustees died without executing the power. Page Wood, V. C., said: "It is settled by Brown v. Higgs and Burrough v. Philcox that where there is a power to appoint among certain objects and no gift in default of appointment, the court will imply a gift to the objects of the power equally"; and he accordingly held that the power not having been exercised, the other children took by the implied gift. Romer, J., here again says: "Unless checked by reference to the case before him, that statement was too large." (8) In Butler v. Gray62 there was, as Romer, J., says, a sufficient indication that the class were to take.
(9) Of In re Brierley,63 a decision of the Court of Appeal, Romer, J., says: "It was a decision not in point on the proposition con
60 2 Dr. & Sm. 527 (1865).
61 H. R. V. Johns. 656 (1860).
63 43 W. R. 36 (1894).
tended for." But, with submission, it was very much in point, and is dead against the proposition contended for by the learned judge in In re Weekes' Settlement. In In re Brierley a testator gave his wife the income for life of a fund held in trust, and directed that if he died childless (which happened) the wife might "bequeath or appoint" the fund "to such of my brothers and sisters and nephews and nieces and other of my relatives or next of kin as she shall think proper." It is surely impossible to distinguish the power in this case from that in In re Weekes' Settlement. The testator went on to direct that the remainder of his property should be divided into forty-three parts. He disposed of some of these parts, and made his wife residuary legatee. The wife brought a suit in equity calling on the trustees to hand over the fund to her on her executing a release.
There were three possible views: first, that there was an implied gift of the fund to the objects of the power; second, that the fund passed under the gift of the remainder of the property; third, that it passed to the wife as residuary devisee. The Court of Appeal, Lord Herschell, C., Lindley and Davey, L.JJ. (certainly a very strong court), expressly declined to consider whether the second or third view was correct, and they declined because the first view was correct. The Lord Chancellor speaks rather contemptuously of the attempt to found any argument on the presence or absence of the words "it is my will" or "desire."
"The truth is that there is no magic about the use of the words 'it is my will and desire.' Everything that is found in the testator's will indicating what is his intention is as much indicating his will and desire as if he had in so many words used that language."
Davey, L. J., in the course of the argument said:
"Would it not be a correct statement of the law to say that if there be a power to appoint among certain objects, but no gift to those objects and no gift in default of appointment, then the law will imply a gift to those objects in default of appointment?"
In Carberry v. M'Carthy there was a devise to A. upon trust to receive the rents during her life, with full power to dispose thereof by deed or will to all or any of the testator's children. Chatterton, V. C., passing upon the provision, said:
647 L. R. Ir. 328 (1881).