Equitable relief against defective execution of a power.

(e) Stat. 22 & 23 Vict. c. 35, s. 12, passed 13th Aug. l859 (f) Sug. Pow. 207. 8th ed.

(g) Stat. 22 & 23 Vict. c. 35, s. 12.

(h) Stat. 22 & 23 Viet. c. 36, s. L2.

(i) Sug. Pow. 533-536, 8th. ed.; Farwell on Powers. 327, 2nd ed.; and see Charlton v. Charlton, 1906, 2 Ch. 523.

Where a title depends on the valid exercise of a special power of appointment, such as a power to appoint amongst a limited class of persons (the appointor's children, for instance), the conveyancer must, of course, see that the appointment is made in favour of those persons who are objects of the power (q) or some or one of them (r). And he must further ascertain that the appointment does not transgress the rules of equity with respect to the fraudulent execution of such powers; as where an appointment is made ostensibly for the benefit of some object of the power but with the real design of effecting some other purpose than that contemplated by the power (s). Where these rules are transgressed, it must be remembered that the appointment, if of the legal estate in lands, may be void in equity only, but not at law (t); so that where a title depends on the avoidance of such an appointment, the legal estate may have to be got in from the appointee. Another point to be borne in mind in considering the exercise of powers of appointment amongst a limited class of persons is the question whether the appointment infringes any of the established rules with respect to remoteness of limitation. In such cases, the validity of the estates limited by the instrument exercising the power depends on the result of the inquiry whether they would have been valid if inserted in the instrument which created the power. And in investigating this point, the conveyancer must not forget that, as the law now stands, powers given by a marriage settlement or any other instrument to appoint estates in land amongst the issue of the marriage or of some specified living person, cannot well be exercised in such a way that the unborn child of a child unborn when the instrument took effect shall take either a legal or an equitable estate in remainder expectant on a life estate appointed to his or her parent (u); or so that a legal or an equitable estate appointed in remainder after a life estate appointed to some such unborn child shall be such as need not necessarily vest (if at all) within the period allowed by the rule against perpetuities (x); or so that Title under a special power of appointment.

Fraudulent execution.

(k) Sug. Pow. 542, 8th ed.

(I) Sug. Pow. 548 sq., 558, 559, 560, 8th ed.; Farwell on Powers, 330, 2nd ed.

(m) Rolt, L. J., Cooper v. Martin, L. R. 3 Ch. 47, 58; Sug. Pow. 560, 8th ed.

(n) Reird v. Shergold, 10 Ves. 370.

(o) Cooper v. Martin, ubi sup.

(p) Sug. Pow. 532, 8th ed.; Farwell on Powers, 327, 2nd ed.

(q) See Sug. Pow. 498 sq., 652 sq., 664 sq., 8th ed.; Farwell on Powers, 298 sq., 486 sq., 2nd ed.

(r) As to exclusive appointments, see Farwell on Powers, 362 sq., 2nd ed.; Wms. Pers. Prop. 369, 16th ed.

Remoteness of limitation Exercise of powers to appoint land amongst unborn issue.

(s) See Bug. Pow. 606 sq., 8th ed.; Farwell on Powers, 403 sq., 2nd ed.

(t) See Sug. Pow. 606 - 608, 8th ed.

(u) Whitby v. Mutchell, 44 Ch. D. 86; Be Nash, 1910, 1 Ch. 1.

Be Frost, 43 Oh. D. 246, followed in Re Asforth, 1905, 1 Ch. 535 (as to which case, see any future estate or interest, whether legal or equitable, appointed to arise in favour of any child or issue unborn when the instrument took effect by way of shifting use or other executory limitation (and not by way of remainder) shall be such as contravenes the rule against perpetuities (y).

Attestation clause to instruments exercising powers.

Where an instrument creating a power of appointment has required that certain acts done in connection with the exercise of the power (such as the signing, sealing and delivery of a deed or writing) shall be attested by witnesses, the attestation clause of the instrument exercising the power should be examined with special care, as the omission to express therein that some or one of such required acts has been duly attested may vitiate the exercise of the power. On this subject Lord Justice Farwell (z) has laid down the following rule as the result of the authorities: - "If a power requires two or more formalities to be attested, and the attestation clause expressly certifies that one of such formalities has been performed, then the power is not well executed (a). But if the attestation, although a limited and special one, is of such a nature that it must necessarily be inferred that the other requisites were complied with (6), or if the attestation is general, then the execution is valid, unless the contrary is shown" (c). This rule is, of course, subject to the above-mentioned provisions of the Wills Act and Lord St. Leonards'Act (d), which have greatly diminished its importance in practice.

Mr. Charles Sweet's criticism in 49 Sol. J. 793, which it is respectfully submitted is well founded); Whitby v. Von Luedecke, 1906, 1 Ch. 783.

(y) See Wms. Real Prop. 361-366, 405-417, 21st ed.; and the writer's articles on Contingent Remainders and the Rule against. Perpetuities in the Encyclopaedia of English Law, 2nd ed.

(z) Farwell on Powers, 135, 2nd ed.

(a) Vincent v. Bishop of Sodor and Man, 4 De G. & Sm. 294, 307; 5 Ex. 683, 694. In Wright v. Wakeford, 17 Ves. 454, 4

Taunt. 213, where a power of consent to a sale was required to be exercised by writing under hand and seal attested by two or more credible witnesses, and the attestation clause of the deed exercising the power only certified that it was sealed and delivered in the presence of two witnesses, it was held that the power was not well executed. The like defect in instruments exercising powers executed before the 30th July, 1814, was cured by stat. 54 Geo. III. c. 168: but this Act had no prospective operation.