person or class of persons may be, yet, as the donee has no estate, or none beyond his life, the trust to exercise the power is as such personal, and does not directly attach upon the inheritance, save in so far as the Court finds in the language an implication in favor of the objects in default of appointment. In this case, if they take the estate, they take it by implication, and thus by way of limitation under the instrument creating the power. In the former class of cases the Court acts by executing the power in lieu of the donee; in the latter by simply giving effect to the estate implied in the words of the deed or will."

I shall confine myself to the consideration of the second class of cases, the cases where a real power is given, and not where a trust is directly attached to property.

I. When a special power in gross or simply collateral to appoint to a class is given, and there is no gift over in default of appointment, and no appointment is made, the objects of the power take by implication the estate or interest that might have been appointed to them.21

In Marlborough v. Godolphin 22 a life interest in a fund was given to A.; after A.'s death the fund to be divided and distributed to such of the testator's children as A. should by deed or will appoint. It was held that no gift to the children in default of appointment was implied. But this case, although an elaborate opinion of Lord Hardwicke, has been much criticized.23 It would not now be followed.

In Crossling v. Crossling 24 land was devised to A. for life, “and she shall dispose of the same amongst my children at her decease as she shall think proper." It was held by the Court of Exchequer that there was no gift over in default of appointment. This case has been doubted, and justly, by Sugden 25 and Farwell.26

27

In Down v. Worrall a testator directed his trustees to settle such part of the residue at their discretion either for charitable

21 Sugden, Powers, 8 ed., 591; Farwell, Powers, 2 ed., 466; 1 Jarman, Wills, 6 ed., 650; Leake, Land Law, 391; 1 Tiffany, Real Property, § 290.

23 Brown v. Higgs, 5 Ves. 495, 505 (1800); Salusbury v. Denton, 3 Kay & J. 529, 535 (1857); Pocock v. Attorney-General, 3 Ch. D. 342, 348 (1876); Wilson v. Duguid, 24 Ch. D. 244, 250 (1881); Sugden, Powers, 8 ed., 592; Farwell, Powers, 2 ed., 464; 1 Jarman, Wills, 6 ed., 651, note.

24 2 Cox 396 (1794).

26 Powers, 2 ed., 464.

25 Powers, 8 ed., 592.

27

1 Myl. & K. 561 (1833).

purposes or otherwise for the benefit of the testator's sister and her children. The trustees had all died. Sir John Leach, M. R., held that the power was personal, and that what remained unappointed at the death of the surviving trustee belonged to the testator's next of kin, as undisposed of. The opinion is very short:

"Where a disposition is made in favor of charity and the trustee fails, the Court will interfere and execute the trust; but here no disposition is made in favor of charity as to the unappointed part. The trustees had a personal discretion as to the application of the fund, and, as they have died without exercising that discretion, this part of the property is undisposed of by the testator and belongs to the next of kin."

Down v. Worrall is not cited by Lord St. Leonards, and Mr. Farwell 28 speaks of it as "a very doubtful case," and in Salusbury v. Denton,29 where a donee had a power to appoint to a charity, and the remainder to the testator's relatives as the donee might choose, and the donee made no appointment, the court gave half the fund in charity and the other half to the relatives. No such solution was suggested in Down v. Worrall. It is submitted that Down v. Worrall is wrong.

In Bull v. Vardy 30 the point decided was that the objects of a power do not take, in default of appointment, by virtue of an exercise of the power by the court, but the court seem to have thought that under the circumstances of that case they did not take either by way of direct gift or implied gift under the will of the original testator. The case, though cited by Sugden, is not commented on by him, and is not even cited by Farwell.31

II. There is no gift implied after a general power. A general power is a power to appoint to all the world, and all the world cannot be made the object of an implied gift.

III. A gift in default of appointment is implied, although the power is an exclusive one, that is, a power to select and not to distribute.32

28 Powers, 2 ed., 471.

30 1 Ves. Jr. 270 (1791), stated p. 3, ante.

29 3 Kay & J. 529 (1857).

31 See In re Brierley, 43 W. R. 36, stated p. 12, post.

32 Witts v. Boddington, 3 Bro. Ch., Belt's ed., 94 (1790); Brown v. Higgs, 4 Ves. 708 (1799), 5 Ves. 495 (1800), 8 Ves. 561 (1803); Burrough v. Philcox, 5 Myl. & C. 72 (1840).

IV. If there is an express gift in default of appointment, no gift can be implied.33

But the fact that there is an express gift in default of appointment upon a contingency which has not in fact occurred does not exclude an implied gift. Thus, where there was a power in A. to appoint to the children of a marriage, and if there were no issue of the marriage, a general power in A. to appoint, and a gift over in default of appointment, and there were children, and the power was not exercised, there was a gift implied to the children.34

V. Although there may be no express gift over, the existence of an implied gift may be negatived by the provisions of a will. Thus in Carberry v. M'Carthy 35 a testator, after declaring in the will that he had already provided for his children, and that he did not "hereby make any further provision for them," gave certain property to his wife upon trust to receive the income during her life, with full power to dispose thereof by deed or will to any of his children. Chatterton, V. C., said that there would have been a gift over by implication to the children in default of appointment, had it not been for the declaration by the testator that he had already provided for the children, but that this declaration showed that the testator intended that the children should not take except by an execution of the power; and that, therefore, the implied gift to them which would have otherwise existed was excluded.

VI. Where there is an express gift in default of appointment, although it is void for remoteness, any implied gift is excluded.36

VII. In Brown v. Higgs 37 there was a devise to J. in tail, and in default of issue, to one of the sons of S., as J. should, by deed or will, direct. J. and S. both died in the testator's lifetime. S. had four sons. They brought a bill praying that the will might be established. The case was not ripe for decision, and Lord Alvanley,

23 Roddy v. Fitzgerald, 6 H. L. C. 823, 856 (1857); Pattison v. Pattison, 19 Beav. 638 (1854); Goldring v. Inwood, 3 Giff. 139 (1861); Richardson v. Harrison, 16 Q. B. D. 85, 102, 103, 104 (1885), commenting on In re Jeffery's Trusts, L. R. 14 Eq. 136 (1872); In re Lyons and Carroll's Contract, [1896] 1 I. R. 383.

34 Fenwick v. Greenwell, 10 Beav. 412 (1847). And see Bradley v. Cartwright, 16 Q. B. D. 511; Doe v. Goldsmith, 7 Taunt. 209 (1816). Cf. Butler v. Gray, L. R. 5 Ch. 26 (1869).

35

7 L. R. Ir. 328 (1881).

37

4 Ves. 708 (1799).

36 Re Sprague, 43 L. T. R. 236 (1880).

M. R., made no decision, but he said 38 that he was inclined against the plaintiffs. This inclination seems correct. Only one son was the object of the power, and it was impossible to say to which one a gift could be implied. 39

VIII. Is the gift of the residue a gift over in default of appointment, which excludes any gift by implication?

In Forbes v. Ball 40 a testator gave his wife 500l., and added: "That it was his will and desire" that she should dispose of it amongst her relations as she by will might think proper. The residue was given to her for life, with gifts over. Sir William Grant, M. R., held that the power had been well exercised, but he said that the will raised a trust for the wife's relations, subject to her appointment.

Healy v. Donnery 41 was ejectment by the heir of M. for failure to pay rent under a lease for 100 years made by M. to the defendant. The defendant contended that M. had only a life estate, and therefore the lease was determined. The decision of the question turned upon the construction of the will of M.'s father, who died seised of the premises, and devised the premises to M. upon trust to receive the rents during her life, with power to her, by deed or will, to dispose of or devise the premises among her children in such shares as she should see fit. He gave the residue of his estate to M. M. did not execute the power. The court held that M. took the absolute legal estate, and therefore her heir could maintain this ejectment. As M. took the whole legal estate, even if there had been an implied gift, it would have been only of an equitable estate, and M.'s heir was the proper person to bring the ejectment. As the counsel for the defendant said: 42 "The only question in the case is whether the children take the legal or only an equitable estate." This case, therefore, does not determine whether, when a life estate is given to A. and a power to him to appoint, a residuary devise to him is a gift in default of appointment so as to exclude an implied gift.43

38

4 Ves. 719.

39 See Sinnott v. Walsh, 5 L. R. Ir. 27 (1880); Sugden, Powers, 8 ed., 593; 1 Jarman, Wills, 6 ed., 653.

3 Ir. C. L. 213 (1853).

42 See p. 215.

The statement in Ahearne v. Aherne, 9 L. R. Ir. 144, 148 (1881), that in Healy v. Donnery it was not held that M. took the absolute legal interest seems unjustifiable, in face of the positive statement in that case of Greene, B., that she did.

But in Salusbury v. Denton,44 where property was given to the testator's wife for life, with a power to her to appoint, and the wife was made residuary legatee, and the power was not exercised, the court held that there was an implied gift to the objects of the power. It is rather singular that the point of there being a residuary gift to the wife is not mentioned in the opinion.4

45

In In re Brierley 46 a fund was given to trustees in trust to pay the income to the testator's wife for life, with a power to her to appoint the fund to "such of my relatives or next of kin as she may think proper." The wife was made residuary legatee. There was a question whether, on the construction of the will, there was a gift over, in default of appointment, to persons other than the wife, or whether there was a gift of the fund by implication to the testator's next of kin. The court decided that one of these alternatives was correct. They expressly abstained from deciding which, but they held that upon neither alternative was the wife as residuary legatee entitled if the power was not exercised. Davey, L. J., said: "A residuary gift is not the same thing as a gift in default of appointment; a residuary gift only gives what would otherwise go to the next of kin." In deciding that a gift of the residue is not a gift over in default of appointment, the court refer to Forbes v. Ball 47 and Salusbury v. Denton.48

It can therefore be said that a gift of the residue is not such a gift in default of appointment as to exclude a gift by implication.

IX. When there is a power to appoint to a class, and no gift over in default of appointment, and the power is not exercised, there is an implied gift to the members of the class, but it has often been remarked that the language of the will or other instrument creating the power may amount to a direct gift to the members of the class. Thus, if there is a gift to A. for life, with a power to him to appoint to his children, and A. does not exercise the power,

44 3 Kay & J. 529 (1857).

45 In the report of the argument of the counsel for the wife's administrator (pp. 531, 532), it is said that the residuary legacy was to the "testator's relatives now represented" by the wife's administrator. This is a slip of the reporter's; the residuary legacy was to the wife, and the counsel's client was her administrator.

48

3 Kay & J. 529 (1857). The case of In re Brierley will be referred to later in another connection.