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trustees in trust to pay the rents to W. and his wife during their lives, and, on the death of the survivor, to sell and divide the proceeds amongst all the children of W. in such shares and proportion as he should by will appoint. One of the children died in W.'s lifetime. W. died without exercising the power. It was decided that the representatives of the deceased child were entitled to share. The court held that there was not an estate by implication to the children in default of appointment, but an express vested gift to the children, subject to be divested by the exercise of the power.

But assuming that there was here a direct gift to a class, it still remains a question what is the class to whom the direct gift is made. The learned Vice-Chancellor refers to the doctrine, which is now perfectly well settled, notwithstanding some former doubts, that a gift which would otherwise be vested is not made contingent by being preceded by a power, but it by no means follows that a gift otherwise contingent is made vested by being preceded by a power. Suppose a power is given, with an express gift, in default of appointment, to those members of a class who survive the donee of the power. Here the gift is certainly contingent, and the representatives of a deceased member of the class would not share. Now was not this the case in Lambert v. Thwaites?

In Woodcock v. Renneck 93 a testator gave a fund to trustees in trust to pay the income to J. and his wife during their lives and the life of the survivor, and after their decease, in trust to pay the fund to their children in such shares and proportions as the survivor of J. and his wife should by will appoint. Lord Langdale, M. R., decided that only the children who survived J. and his wife could share. This case is in flat contradiction with Lambert v. Thwaites. Vice-Chancellor Kindersley sought to avoid its effect by declaring that what the Master of the Rolls said was only a dictum "very unnecessarily" pronounced. But this, it is submitted, is not correct. What Lord Langdale said was not a dictum, but a decision on a point at issue.

Only one of the children survived the parents, and the surviving parent made an appointment to this child. The administrator of a child who had died in the lifetime of the parents brought a bill in equity praying for a declaration that he was entitled to share in the fund, and for a decree that the trustees might be directed to 4 Beav. 190 (1841).


transfer the same to him. He contended that the appointment by the surviving parent was not valid.

Lord Langdale, M. R., did not decide whether the appointment was valid, and he expressed no opinion upon the point, because, even if the appointment was invalid, only the surviving child could take, and the plaintiff, whose claim was as representing a deceased child, could take no share. He therefore dismissed the bill.

Lord Langdale said:

"I think that there is a gift to children of Mr. and Mrs. Christie, subject to a power to be exercised by the surviving parent. But in considering what children of Mr. and Mrs. Christie were objects of the gift, it is necessary to consider the whole sentence in which the gift is expressed, and that sentence comprises the words creating the power; and although a portion of the sentence, if taken by itself, imports a gift to all the children, the generality of the expression may be limited by the other words of the same sentence; and as the power was to be exercised only by the will of the surviving parent, and therefore could only be exercised in favour of those who were living at the death of the surviving parent:as this is not, in express terms, a gift to all the children in default of appointment, but a gift or trust for children, with words annexed, shewing that the distribution was to be among the children living at the death of the surviving parent:- and, moreover, as the gift is expressed only in the form of a direction to trustees to transfer and pay to children, after the death of the surviving parent; I think that the objects of the power and the objects of the gift are the children living at the death of the surviving parent, and, consequently, that the Plaintiff has no interest in the fund.

"The Plaintiff contended that the words expressing the power ought to have no effect in determining the objects of the gift, but ought to have effect in shewing an intention to sever the shares of the children so as to prevent a joint tenancy, but the words cannot be thus alternately rejected and employed."

The case was brought by appeal before Lord Cottenham, C. 94 The Lord Chancellor appears to have thought that the appointment was valid. He affirmed the judgment of the Master of the Rolls and said:

"It was contended on the part of the Plaintiff that this was a vested interest in all the children living at the death of the testator William

94 1 Phil. 72 (1841).

Linton. For it was said that the words of the bequest in favour of the children were, in substance, the same as those which were made use of in the bequest to Joseph Christie and Sarah his wife, who, it was admitted, took a vested life interest under the will. But to support this argument a part only of the words are taken, omitting the subsequent portion of the clause, upon the true construction of the whole of which the question must depend."

It is submitted that the decision of Lord Langdale, M. R., approved by Cottenham, C., is good sense and good law, and should be followed rather than the decision of Vice-Chancellor Kindersley in Lambert v. Thwaites. It is certainly difficult, in construing such a provision, to attribute to a testator an intention that those children should take in default of appointment to whom no appointment could be made.

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But, further, the doctrine of Lambert v. Thwaites, that upon a gift to A. for life, and, on his death, to his children as he shall by will appoint, the children who have died in the lifetime of A. are entitled to share, that is, that persons can take to whom no appointment could be made, is inconsistent with what has been decided in two cases in which the life tenant and the donee were different persons. There would seem to be no difference whether the power is in gross or is simply collateral.

(1) In Halfhead v. Sheppard 95 a testator devised land to his wife C. for life, and directed that, if R. survived C., he should, immediately on her death, divide the land in such manner amongst all the testator's children as they should severally reach twenty-one as R. should think equitable and fair. The testator had three children; two only reached twenty-one, and all died in the lifetime of C. R. survived C., but did not execute the power. It was held that the children did not take.

(2) In In re Phene's Trusts 96 a testator gave a fund to his executors in trust for M. for life, and from and immediately after her death, in trust for the benefit of M.'s children, as the executors might think most to their advantage. Some of M.'s children and also the executors died in M.'s lifetime. It was held that only the children who survived M. were entitled.97

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» Cf. Wilson v. Duguid, 24 Ch. D. 244, 251 (1883); 2 Jarman, Wills, 6 ed., 1706.

In Carthew v. Enraght 98 a testator directed that after the death of his wife, his trustees should divide and pay a fund equally between such ten of the children or remoter issue of H. as the trustees should see fit. At the death of the widow, there were only six descendants of H. living. It was held that they were entitled to the whole fund.

(B) Power to appoint to "family" or "relations."

The word "family" has no technical meaning.99 When a will gives a power to appoint to a "family" or to the members of a "family," the question whether the person or persons to whom a gift is implied in default of appointment are the heirs, the next of kin, or the children, depends upon the words of the will taken in connection with the state of the family.100 "The cases on 'relations' are very peculiar." 101


Under a non-exclusive power to appoint to "relations," 102 none

20 W. R. 743 (1872).

99 2 Jarman, Wills, 6 ed., 1582 et seq.

100 See Cruwys v. Colman, 9 Ves. 319 (1804); Wright ». Atkyns, 17 Ves. 255 (1810), 1 Ves. & B. 313 (1813), 19 Ves. 299 (1814), more fully reported in G. Coop. III (1815), 1 Turn. & R. 143 (1833), (the best statement of the case is in Sugden, Law of Property in House of Lords, 376); Sinnott v. Walsh, 5 L. R. Ir. 27 (1879). 101 Per Chitty, J., in Wilson v. Duguid, 24 Ch. D. 244, 249 (1883).

102 When the doctrine of non-exclusive powers, namely that under a power to appoint to children a share must be given to each child, had become settled, it soon became obvious that by giving a shilling to a child, the application of the doctrine might be utterly evaded, and therefore the Court of Equity laid down the rule that the share given to any child must not be illusory. The establishment of this rule as to illusory appointments was the necessary corollary of non-exclusive powers. Without it, non-exclusive powers are a laughing-stock and a legal farce.

But the rule as to illusory appointments is unique in the law. Other rules of doubtful character have found defenders or apologists, but no one has had a good word for this. It has been condemned in the most unmeasured terms by judge after judge; by Sir Richard Pepper Arden (afterwards Lord Alvanley), M. R., in Spencer v. Spencer, 5 Ves. 362 (1800); Kemp v. Kemp, id. 849 (1801); by Sir William Grant, M. R., in Butcher v. Butcher, 9 Ves. 382 (1804); and by Lord Eldon, C., in Bax v. Whitbread, 16 Ves. 15 (1809), and Butcher v. Butcher, 1 Ves. & B. 79, 94, 96 (1812).

This state of things was so intolerably inconvenient and mischievous that a statute was passed abolishing the rule as to illusory appointments. The statute did not touch the doctrine of exclusive appointments, but the absurdity of this, after having been pointed out by Sir George Jessel, M. R., in Gainsford v. Dunn, L. R. 17 Eq. 405 (1874), was recognized by the legislature, and in 1874 another statute was passed by which every power is made exclusive.

There is very little law in the United States on non-exclusive powers and illusory appointments, but it is submitted that the proper mode of dealing with them is that adopted by the Judicial Committee of the Privy Council in the case of McGibbon v. Abbott, 10 A. C. 653 (1885). A resident in Lower Canada, under a power which would


of the statutory next of kin can be excluded from the appointment, and no one who is not of the statutory next of kin can be included.103 And though, under an exclusive power, an appointment may be made to a relation who is not one of the next of kin,104 yet even when the power to appoint to relations is exclusive, the gift over in default of appointment is to the statutory next of kin.105

But here a question of some difficulty arises.

At what time are the statutory next of kin to be determined? First. Suppose the donee of the power is also the life tenant. Here the next of kin are to be determined as of the date of the life tenant's death. This is so not only when the power is exclusive, as in Harding v. Glyn,106 but also when it is non-exclusive,107 and also whether it is exercisable by either deed or will.108

have been held non-exclusive under the English precedents, appointed to some only of the objects. The appointment was held valid. The Court said:

"The Courts in Lower Canada are not bound by the current of decisions in England, as the Judges in England before 1874, and Lord Alvanley in the case of Kemp v. Kemp, considered themselves to be bound, in deciding whether a power was exclusive or non-exclusive."

And again:

"It would be lamentable if their Lordships, in a case arising in Lower Canada and to be determined by the law of that country, should feel themselves bound by a course of English decisions which have been swept away by the legislature as fraught with inconvenience and mischief, and thus to be driven to such a construction of the will of William as would form a precedent in future cases of a similar nature, and thereby introduce into Lower Canada all those difficulties and inconveniences which it required the force of an Act of Parliament in England to remove."

103 Pope v. Whitcomb, 3 Meriv. 689 (1810); In re Deakin, [1894] 3 Ch. 565; Lawlor v. Henderson, Ir. R. 10 Eq. 150 (1876); In re Patterson, [1898] 1 I. R. 324; Varrell v. Wendell, 20 N. H. 431 (1846); Sugden, Powers, 8 ed., 657; Farwell, Powers, 2 ed., 504; 1 Jarman, Wills, 6 ed., 823.

104 Harding v. Glyn, 1 Atk. 469 (1739), see 5 Ves. 501 (1800); Grant v. Lynam, 4 Russ. 292 (1828); Sugden, Powers, 8 ed., 658; Farwell, Powers, 2 ed., 504; 1 Jarman, Wills, 6 ed., 823.

105 Doyley v. Attorney-General, 4 Vin. Abr. 485, pl. 16 (1735); Cole v. Wade, 16 Ves. 27 (1806); Salusbury v. Denton, 3 Kay & J. 529 (1857); Mahon v. Savage, 1 Sch. & Lef. 111 (1803); Sugden, Powers, 8 ed., 659; Farwell, Powers, 2 ed., 506; 2 Jarman, Wills, 6 ed., 1633. See Spring v. Byles, 1 T. R. 435–438 n. (1783); Varrell v. Wendell, 20 N. H. 431 (1846).

106 1 Atk. 469 (1739).

107 Pope v. Whitcomb, 3 Meriv. 689 (1810), correctly stated in Sugden, Powers, 8 ed., 662, 663.

108 Harding v. Glyn, Pope v. Whitcomb. See Cruwys v. Colman, 9 Ves. 319, 325 (1804); Birch v. Wade, 3 Ves. & B. 198 (1814); Finch v. Hollingsworth, 21 Beav. 112 (1855); Sugden, Powers, 8 ed., 661-663; Farwell, Powers, 2 ed., 508; 1 Jarman, Wills,

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