"If the question depended solely on the effect of the portion of the will which I have mentioned, I should hold that the power was coupled with a trust, and that the testator's children, being the objects of the power, were intended to take in default of the execution of the power, and were not to be deprived of the benefits intended for them by the failure of the donee to appoint in pursuance of it. They would in such case take the property in equal shares by implication."

The Vice-Chancellor, however, thought that other language in the will excluded the implication.65

In In re Hall 66 the sum of 500l. was by will given in trust, to pay the income to R. for life or until she married, when the testatrix directed the sum to be settled, and she declared that it was her will and desire that if R. died unmarried, she should have power to demise (sic) the legacy to such of her brothers or sisters or their children as she should think proper. R. died without effectually exercising the power. Porter, M. R., held that there was no implied gift to the objects of the power. The decision in this case goes further than in In re Weekes' Settlement, for in this case the words "will and desire" are used, the presence of which Romer, J., seems to have thought sufficient to give a gift over. The opinion in In re Hall gives many extracts from earlier cases, but it seems to contain nothing that calls for remark. It is submitted that it is wrong.

In view of the above, and especially of the direct decision of the Court of Appeal in In re Brierley, it is submitted that the conclusion reached in In re Weekes' Settlement and in In re Hall cannot be sustained, but that, on the contrary, in accordance with the frequent statements of judges and the unanimous opinions of the text writers, gifts in default of appointment to the objects of a power can be raised by implication.

The American cases lend no countenance to the novel doctrine of In re Weekes' Settlement.

In Dominick v. Sayre 67 there was a devise to M. for life "with power to give the same to descendants." It was held that a gift in default of appointment was implied. The court consider and reject any distinction between a power to A. to appoint to a class and a gift to such members of a class as A. may select.6

65 See the case stated p. 10, ante.

67

3 Sandf. (N. Y.) 555 (1850).

66 [1899] I I. R. 308.

68 See Smith v. Floyd, 140 N. Y. 337 (1893).

In McGaughey's Admr. v. Henry 69 a tenant for life had a power to divide property as she might think right among her children. A gift to the children was implied.

In Milhollen's Admr. v. Rice 70 a testator directed that property in which A. had a life interest should be "at her disposal to whom she thinks proper of her heirs." It was held that there was a gift by implication to A.'s heirs.

In Rogers v. Rogers" A. who had a life interest, was given "the privilege" of giving the property to whom she pleased among his children or grandchildren. It was held that there was an implied gift to the objects of the power.

In Morris v. Owen 72 slaves were bequeathed to S. for life, "and then to be divided at her discretion, amongst my children." The Court of Appeals of Virginia in a per curiam opinion, besides disposing of other points, said that the slaves as to whom there was not any appointment "remained as part of the residuary estate." There does not seem to have been any discussion on the point. On the words of this will, it is clear that even Romer, J., and Porter, M. R., would have held there was a gift to the objects of the power. The case would seem to be of little, if any, authority. Frazier v. Frazier's Executors 3 is obscurely reported. The point in question here does not seem to have been considered.

In Holt v. Hogan" property was given to the testator's wife for life, with the privilege of disposing of the same by will or otherwise amongst "our children" at her death. Whether there was any gift over by implication was a matter not considered; it seems to have been taken for granted that there was not. The question discussed was whether the property fell into the residue or whether there was an intestacy with regard to it.

X. To what objects of a power is a gift implied?

The cases fall under three heads:

(A) Power to appoint to one or more defined classes of relations, such as children, grandchildren, issue, descendants, nephews, etc. (B) Power to appoint to "family" or to "relations."

(C) Power to appoint to charities.

(A) Under a power to appoint to the members of one or more

classes, e. g., a power to appoint to children or grandchildren, or a power to appoint to descendants, all the persons to whom an appointment could have been made take per capita as tenants in

In Jones v. Torin,76 where the power was to appoint to children or their descendants, "descendants" was held to be substitutionary, and in Tucker v. Billing," where the power was to appoint to brothers and sisters and their descendants, the same was held. Both of these decisions are questioned by Mr. Jarman.78 But in Rogers v. Rogers,79 where there was a power to appoint to children or grandchildren, it was held that the children of living children could not share an implied gift. These cases seem very doubtful.

In Martin v. Swannell 80 a testator gave his estate to his wife for life, and on her death he devised it to his three children and their issue, as the wife should appoint. The power was not exercised. Lord Langdale, M. R., held that the children took estates tail.

When there is a bequest to children as A. shall appoint, and there is no appointment and only one child, the child takes the whole. 81

In Eddowes v. Eddowes 82 a share of the residue was given to trustees, upon trust, at their discretion, to apply the whole or part of the capital or income for the benefit of the testator's son J., or, at the option of the trustees, to augment the other shares. J. died, and the trustees refused to exercise the option. Kindersley, V. C., held that the share was undisposed of. He said four implied gifts had been suggested: (1) To the other children of the testator (to whom the other shares of the residue were given) excluding J.;

75 Brown v. Higgs, 4 Ves. 708 (1799), 5 Ves. 495 (1800), 8 Ves. 561 (1803); Longmore v. Broom, 7 Ves. 125 (1802); Brown v. Pocock, 6 Sim. 257 (1833); Grieveson v. Kirsopp, 2 Keen 653 (1838); Burrough v. Philcox, 5 Myl. & C. 72 (1840); Penny v. Turner, 15 Sim. 368 (1846), 2 Phil. 493; Re White's Trusts, H. R. V. Johns. 656 (1860); Stolworthy v. Sancroft, 33 L. J. Ch. 708 (1864); Dominick v. Sayre, 3 Sandf. (N. Y.) 555 (1850). Cf. Tomlinson v. Nickell, 24 W. Va. 148 (1884).

3

76 6 Sim. 255 (1833).

77 2 Jur. N. S. 483 (1856).

78 I Jarman, Wills, 3 ed., 482, n. 1, 483, n. t. Cf., however, Crozier v. Crozier,

81 Bellasis v. Uthwatt, 1 Atk. 426 (1737); Davy v. Hooper, 2 Vern. 665 (1710); Madoc v. Jackson, 2 Bro. Ch. 588 (1789).

82 7 Jur. N. S. 354 (1861).

(2) to J., excluding the other children; (3) to all the children, including J., equally; (4) half to J. and half to the other children; and he concluded that there was not enough in the will to enable him to determine the persons to whom the testator wished the share to go.

If a power given to a life tenant is exercisable by either deed or will, all those of the class to whom an appointment might have been made are included in the implied gift in default of appointment, and therefore if one of them dies in the lifetime of the donee, his heirs or representatives share in the gift.83

In Winn v. Fenwick 84 property was settled in trust for A. for life, and after his death, if B., A.'s wife, died in A.'s lifetime leaving any child living at her death, then on trust for all the children of A. and B., in such shares as B. should by deed or will appoint. B. died in A.'s lifetime leaving children and not having executed the power. It was held that the implied gift was only to those children who survived B.

In Stolworthy v. Sancroft 85 property was given to trustees upon trust to pay the income to A. for life, and, after her death, if she left issue, to dispose of the property in such manner amongst such issue as A. should by deed or will appoint. A. did not exercise the power. Kindersley, V. C., held that there was a gift implied to the issue of A. living at her death.

Where there is no life estate, and the power is given to executors or trustees, the gift implied in default of appointment is to those objects of the power who are living at the time of the creation of the power.

86

If the power is exercisable by will only, then as the only objects of the power are persons living at the death of the donee, the gift implied in default of appointment is confined to such persons.87

& Madoc v. Jackson, 2 Bro. Ch. 588 (1789) (disapproving Maddison v. Andrew, I Ves. Sr. 58, 60, which is contra); Casterton v. Sutherland, 9 Ves. 445 (1804); Faulkner v. Wynford, 15 L. J. N. s. 8 (1845); In re Jackson's Will, 13 Ch. D. 189 (1879); Wilson v. Duguid, 24 Ch. D. 244 (1883). Contra, wrongly, Rogers v. Rogers, 2 Head (Tenn.) 660 (1859). Cf. Reade v. Reade, 5 Ves. 744, 748 (1800).

84 II Beav. 438 (1849).

85 33 L. J. Ch. 708 (1864).

86 Longmore v. Broom, 7 Ves. 125 (1802); Cole v. Wade, 16 Ves. 27 (1807); Walter . Maunde, 19 Ves. 424 (1810). See Sugden, Powers, 8 ed., 601, 622; Farwell, Powers, 2 ed., 476.

87 Kennedy v. Kingston, 2 Jac. & W. 431 (1821); Walsh v. Wallinger, 2 Russ. & M.

There is one, and only one, case which holds that where a power given to a life tenant is testamentary, the representatives of an object of the power who died in the lifetime of the donee can take. This is a decision of Vice-Chancellor Kindersley in Lambert v. Thwaites. 88 The case is referred to as law in the modern text books.89

The decision in Lambert v. Thwaites is rested on a distinction between a power with an implied gift in default of appointment (e. g., a devise to A. for life, with a testamentary power to A. to appoint to his children), and a direct gift to a class, coupled with a power of distribution or selection (e. g., a devise to A. for life and on his death to his children as he may by will appoint). The distinction is a fine one, and it is obvious that the cases may so run into one another as to make it difficult of application.90

But, assuming the distinction to be sound, it seems to be of no practical importance except on two points: First. It may be said that there is never an implied gift to a class in default of appointment, and that when the members of the class take in default of appointment, they take because there is a direct gift to them. This is what was held in In re Weekes' Settlement.91 I have discussed this case above,92 and have endeavored to show that the case is contrary to authority and is wrong. Second. It may be said that if a testamentary power is given to a life tenant to appoint to a class, only those members of the class who survive the life tenant can take, but that if there is a gift to a class after the death of the life tenant, in such shares as the life tenant may appoint, there is a direct gift to the class, and that in default of appointment the representatives of those members of the class who have died before the life tenant come in for their share. This was the ground of decision in Lambert v. Thwaites.

In that case, by a post-nuptial settlement, land was given to 78 (1830); Brown v. Pocock, 6 Sim. 257 (1833); Woodcock v. Renneck, 4 Beav. 190 (1841), 1 Phil. 72; Freeland v. Pearson, L. R. 3 Eq. 658 (1867); Tucker v. Billing, 2 Jur. N. S. 483 (1856); In re Susanni's Trusts, 20 W. R. 93 (1877); Sinnott v. Walsh, 5 L. R. Ir. 27 (1879). See Moore v. Ffolliot, 19 L. R. Ir. 499 (1887). 88 L. R. 2 Eq. 151 (1866).

89 Farwell, Powers, 2 ed., 472; Leake, Land Law, 391, 392; 1 Jarman, Wills, 6 ed., 651; 2 Jarman, Wills, 6 ed. 1705.

90 Cf. the remark of Kenyon, M. R., in Pierson v. Garnet, 2 Bro. Ch. 38, 45, cited p. 16, ante.

91 [1897] I Ch. 289.

92 See pp. 13 et seq.