Sometimes the implied gift is of a legal, sometimes of an equitable estate or interest. Thus, if a legal life estate is given to A., with a power of appointment, the gift implied in default of appointment will be of a legal estate. On the other hand, if an estate is given to trustees, and a power is given to A. to appoint, the gift implied in default of appointment will be of an equitable estate only; but this is not because the power itself is in trust, but because the subject of the power is only an equitable interest. In cases of this second kind, if A. is both owner of the legal estate as trustee, and also donee of the power, there is in default of appointment undoubtedly a trust on his legal estate for the objects of the power, and therefore it is fair enough to say that A. has a power in trust, because a trust is fastened on his estate by reason of the existence of the power. This was what occurred in the earlier cases in which the expression "power in trust" was used. Such was the case of Brown v. Higgs, a leading authority, but one which has been a chief cause of confusion on this topic.

That, in cases of the second class, whenever property, in default of appointment, passes to the objects of a power, it passes by implied gift, and not by an exercise of the power, appears from several considerations:

First. Equity never compels a donee to exercise a power of appointment; what it does is to act when he has not executed it.

Second. When a legal estate is given to A. for life, and a power is given to A. or to B. to appoint the remainder, if the objects of the power take in default of appointment, they must take by an implied gift; equity has nothing to do with it.2

3

Third. The case of Bull v. Vardy 3 is conclusive to the point that equity does not exercise a power, when there is a failure to appoint. A testator devised certain real estate to his wife, but gave her no other interest in his property. He then went on: "I further empower my wife to give away at her death 1000 l.; 100 l. of it to T.; 100 l. to B.; the other 800 l. to be disposed of by her by her will.” He made several legacies, and gave the residue to two women named

1 4 Ves. 708 (1799), 5 Ves. 495 (1800), 8 Ves. 561 (1803).

2 See Morgan d. Surman v. Surman, 1 Taunt. 289 (1808); Halfhead v. Sheppard, 1 E. & E. 918 (1859); Tomlinson v. Nickell, 24 W. Va. 148 (1884); McGaughey's Admr. v. Henry, 15 B. Mon. (Ky.) 383 (1854); Rogers v. Rogers, 2 Head (Tenn.) 660 (1859).

C. The wife died without making any disposition of the 1000 l. T. brought a bill against the wife's executor claiming the 100 l. The bill was dismissed. The court said that where the absolute interest is given to one with any expression that the devisee shall dispose of the whole or a part to a particular person, there a trust is raised for that person which the court will execute. But that here the wife had no interest in the 100l. so there was nothing to raise a trust. That is, the court held that this was not a case of the first class above mentioned. The court then considered whether the testator was to be regarded as having made a direct gift to T. They seem to have thought that T. could not take by way of either direct or implied gift from the testator; but whether they were right or wrong in this, they were clearly right in dismissing the bill, for if there was either a direct or an implied gift to T., the bill should have been brought against the testator's executor and residuary legatees, and not, as it was, against the executor of the donee of the power. If the court was attending to the execution of the power, then the executor of the donee was the proper person against whom to bring the bill, but the court says: "It was not argued, that if it was the case of a power, the court could do anything to execute it." That is, that if the objects of a power in gross or simply collateral take upon default of appointment, they take under a direct or implied gift under the will of the original testator, and not by an exercise of the power.

Fourth. If equity really exercised an exclusive discretionary power, it would exercise the full power, discretion and all. This it never does. The estate or interest which is to arise in default of appointment is determined by fixed rules into which no element of discretion enters.

At the end of the seventeenth century, the court sometimes exercised discretion. But, as Lord St. Leonards says: 5 "These cases are not now law. . . . Such a power is now disclaimed. The Court never exercises a discretionary power." "

♦ Carr v. Bedford, 2 Rep. in Ch. 146 (1715). Cf. Moseley v. Moseley, Finch 53 (1673); Clark v. Turner, 2 Freem. 198 (1694) (and see Baker v. Barrett, there cited); Warburton v. Warburton, 2 Vern. 420 (1701), affirmed Dom. Proc., 4 Bro. P. C., Toml. ed., 1; and see Attorney-General v. Bradley, 1 Eden 482 (1760).

5 Sugden, Powers, 8 ed., 601.

See Doyley v. Attorney-General, 4 Vin. Abr. 485, pl. 16 (1735); Cruwys v. Colman, 9 Ves. 319 (1804); Robinson v. Smith, 6 Madd. 194 (1821); Salusbury .

It may be said, and it seems as if it must be said, by those who contend that the court is exercising the power, that the rule for giving the property to all the members of the class is not a refusal to exercise the full discretionary power, but is merely in accordance with a rule of convenience for equal division. It is hard to say this in the face of Lord St. Leonards' statement above given.

But there are cases for which this explanation will not suffice. In Brown v. Higgs there was a power to appoint to one of a class. No appointment. The case was not ripe for decision, but Lord Alvanley, M. R., said that the inclination of his opinion was that it was a mere power. This is approved by Lord St. Leonards 8 and by Mr. Leake."

In Little v. Neil 10 a testator gave a power in favor of one or more of the wife and issue of P., but declared that any provision for the wife should be by an annuity depending on the life of P. The donee declined to make an appointment. Kindersley, V. C., said that the only difficulty he felt was whether, in giving the wife a share in the fund, he ought not to give effect to the direction that she should have only an annuity. He went on:

"But under the present circumstances the court is not exercising the discretion of the trustees nor continuing the settlement; and therefore I cannot do otherwise than direct the fund to be divided equally among the children and grandchildren." 11

Fifth. If equity really exercised the power when the donee failed to exercise it, there is no reason why it should not aid the non-execution of a power in a case where it would aid a defective execution. But "it is an immutable rule that a non-execution shall never be aided." 12

It cannot be denied that in many of the cases, especially the earlier ones, the objects of a power are said to take because the power is in trust, but the distinction between the exercise of a power and an implied gift does not appear to have been in the minds of the courts. Even down to recent times we find a trust

Denton, 3 Kay & J. 529 (1857); McGaughey's Admr. v. Henry, 15 B. Mon. (Ky.) 383 (1854).

7 4 Ves. 708, 719 (1799).

Land Law, 391.

8 Sugden, Powers, 8 ed., 593.

10

31 L. J. Ch. 627 (1862).

11 See the opinion in this case in full, pp. 29, 30, post. 12 Sugden, Powers, 8 ed., 588.

coupled with a power and a gift by implication spoken of as if they were the same thing.13

13

It was the acute mind of Lord St. Leonards which first perceived that when the objects of a power take upon failure to appoint, they take by an implied gift. In the first edition of his book on Powers, published in 1808, he said: 14

"In Brown v. Higgs, 8 Ves. 574, Lord Eldon stated the principle of all the cases on this subject to be, that if the power is a power which it is the duty of the party to execute, made his duty by the requisition of the will put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of the power."

The important words here are "who has given him an interest extensive enough to enable him to discharge it," and that Lord St. Leonards thought so is shown by the fact that in later editions of the book these words are printed in italics.

In Brown v. Higgs, B., a trustee, had the absolute legal estate, and also the beneficial interest for life and a power to appoint the equitable estate subject to his life interest. He made no appointment. It was held that the objects of the power took. Now here I conceive the more exact expression is to say there was an implied gift of the equitable estate to the objects of the power; but as B. had the whole legal estate, there was undoubtedly a trust on that estate for the objects of the power, and therefore it was fair enough to say that there was a power in trust, because the donee of the power was also the owner of the legal estate, and a trust was fastened directly on that estate by reason of the existence of the power. Lord St. Leonards then went on to consider the cases where the donee of the power has not the whole legal estate. He says:

15

"There is a class of cases where the bequest is considered not as a power in the nature of a trust, but as a power with a bequest over to the object of it in default of appointment, by implication. [The italics are his.] In many instances it is difficult to distinguish the cases.

"Thus in Mason v. Limbery, T. Term, 1734, MS. a bequest to A.

13 Carberry v. M'Carthy, 7 L. R. Ir. 328, 333 (1881). Was it not an undue reliance by Mr. Ames on the expression "power in trust" which is responsible for his assault on Morice v. Bishop of Durham, 5 HARV. L. REV. 389?

14 See p. 317.

15 See p. 320.

for life whom the testator 'desired at his death to give it amongst his children, and the children of his said daughter, as he should think fit,' was held by Lord Talbot to be a devise to the children in default of appointment, and the children were accordingly decreed to be entitled to the fund, although A. died in the lifetime of the testator, and there are other cases to the same effect."

That is all that Lord St. Leonards says about this class of cases in his first edition, but in the sixth edition, published in 1836, and in the subsequent editions, he enlarges upon the subject and discusses four classes of cases: (1) where the objects of the power do not take; (2) where there is a power in trust within Brown v. Higgs; (3) when they take by implied gift; (4) where there is held, on the true construction of the will, to be an express gift to the objects of the power in default of appointment. He says: 16 "This doctrine of gift by implication has not been established without a struggle."

The first case in which I have observed a statement in the reports that objects of a power, upon failure to appoint, take by implication, is Kennedy v. Kingston."7

17

In Lambert v. Thwaites 18 it was held that there was an express gift to the objects of the power, but the doctrine of gift by implication was fully recognized.19

The best statement of the law is to be found in Moore v. Ffolliot: 20 "There are several classes of cases. . . First, an estate of inheritance with power of appointment. If the language used in the execution [qu. creation] of the power amounts to a precatory trust, the trust will fasten itself on the inheritance; the donee of the power will be bound to execute it, and if he fail to do so the Court will carry it into effect as if he had. This is the case of Brown v. Higgs and the like. In Brown v. Higgs stress is laid on the circumstance that the testator had given the donee of the power 'an interest extensive enough to enable him to discharge it.'

"There is, however, a distinct class of cases where the donee of the power does not take more than a life estate. In these, however clear the expression of desire on the part of the donor in favor of a particular

16 8 ed., p. 591.

17

2 Jac. & W. 431, 434 (1821). S. P. Brown v. Pocock, 6 Sim. 257 (1833). See Re White's Trusts, H. R. V. Johns. 656 (1860); Stolworthy v. Sancroft, 33 L. J. Ch. 708 (1864).

18 L. R. 2 Eq. 151 (1866).

19 See Farwell, Powers, 2 ed., 472, 474; Leake, Land Law, 391, 392.