1 Vict. c. 26, 8. 27. What powers are within this section. Special powers. Powers exercised by general residuary bequest; by general pecuniary legacies. This section is confined to general powers, and does not extend to a special or limited power (Re Williams, Foulkes v. Williams, 42 Ch. Div. 93). Thus a power to appoint by will amongst children in such manner as the appointor shall think proper, is not within this section of the act (Cloves v. Awdry, 12 Beav. 604; Russell v. Russell, 12 Ir. Ch. R. N. S. 377). Nor is a power given by a testator to his wife to appoint by will among her relations or friends (Re Caplin, 2 Dr. & Sm. 527). Nor is a power to appoint to anyone except A. (Re Byron, Williams v. Mitchell, 1891, 3 Ch. 474), but such a power would seem to be within the section after the death of A. (Ib.). A power to appoint by deed or will to all and every person or persons, child or children," was within this section (Cofield v. Pollard, 5 W. R. 774). A power of appointment by will only is within this section (Re Powell, 18 W. R. 228). A general bequest does not under this section operate as an execution of a power to appoint "by will referring to the power" (Phillips v. Cayley, 43 Ch. Div. 222; overruling Re Marsh, Mason v. Thorne, 38 Ch. D. 630; see Re Phillips, Robinson v. Burke, 41 Ch. D. 417; Re Tarrant, 1889, W. N. 146; Re Davies, D. v. D., 1892, 3 Ch. 63). Special powers not being within sect. 27, it is necessary to find a reference either to the power or the property. So held as regards personal estate (Re Mattingley, 2 J. & H. 426; Rooke v. Rooke, 2 Dr. & Sm. 38; see Re Milner, 1899, 1 Ch. 563; Re Sharland, 1899, 2 Ch. 536. And compare Re Mayhew, Spencer v. Cutbush, 1901, 1 Ch. 677; Kent v. Kent, 1902, P. 108). As regards real estate, it was held before this act that where the testator had no real estate at the date of his will, a general devise to an object of the special power would exercise the power (Standen v. Standen, 2 Ves. jun. 589; see Denn v. Roake, Bing. 478); but having regard to sect. 24 of the act this reason no longer applies (Re Mills, Mills v. Mills, 34 Ch. D. 186; Re Williams, Foulkes v. Williams, 42 Ch. Div. 93). Under this section a general residuary bequest will operate as an exercise of a power to appoint sums of money up to a specified amount (Re Jones, Greene v. Gordon, 34 Ch. D. 65); and also as an appointment of personal estate which the testator has power to appoint as he thinks proper (Re Spooner, 2 Sim. N. S. 129; Clifford v. Clifford, 9 Hare, 675; A.-G. v. Brackenbury, 1 II. & C. 782). The statute makes the fund which is subject to the general power part of the testator's personal estate; for the purpose of paying debts and legacies it went in the same way as the other personal estate (Williams v. Williams, 1900, 1 Ch. 159; see, however, Re Davies, 13 Eq. 167; Fleming v. Buchanan, 3 D. M. G. 979). General pecuniary legacies, with no particular fund indicated for the payment, are bequests of personal property described in a general manner; and where the proper assets are inadequate, the will must be held to include personal estate subject to a general power, so far as necessary to satisfy such legacies (Hawthorn v. Shedden, 3 Sm. & Giff. 293; Re Wilkinson, 4 Ch. 587; see Williams v. Williams, sup.). So a power of appointment over a reversionary fund was exercised by a pecuniary legacy in the will of a married woman who had no property apart from the power (Ludlam v. v. Ludlam, 63 L. T. 330). Where a testator having a general power makes a will directing the payment of his debts without more, and appointing an executor, the appointed fund is liable for the payment of his debts, if his own estate is insufficient (Re Davies, 13 Eq. 166; Wilday v. Barnett, 6 Eq. 193; see Laing v. Cowan, 24 Beav. 112; Re Hodgson, Appointment Darley v. Hodgson, 1899, 1 Ch. 666). Wickens, V.-C., was of opinion that the same rule would apply, though no executor were appointed; but that an appointment of an executor without more would not make the fund assets (Re Davies, 13 Eq. 166; Re Thurston, Thurston v. Evans, 32 Ch. D. 508; Re Power, Acworth v. Stone, 1901, 2 Ch. 665). Direction for of executor. Where the power is exercised and an executor appointed, a good receipt can be given either by an executor (Re Hoskin, 6 Ch. D. 281) or an administrator with the will annexed (Re Peacock, Kelcey v. Harrison, 1902, 1 Ch. 552). As to estate duty, see Re Power, Acworth v. Stone (1901, 2 Ch. 659), and cases there cited; Re Dixon, Penfold v. Dixon (1901, W. N. 1 Vict. c. 26, 243). s. 27. Stock liable to re-invest A general power of appointment over real estate (which was represented by stock liable to re-investment) was held not to be exercised by a bequest of all moneys that I die possessed of," there being a tenant for life who, ment in land. after the death of the testator, had a right to call for re-investment (Re Greaves, 23 Ch. D. 313). But where there was no such person, the power was held to have been exercised by a bequest of "the residue of my personal estate," regard being had to the interpretation of "personal estate in sect. 1 of this act (Chandler v. Pocock, 16 Ch. Div. 648); in which last case the testatrix had procured the stock to be transferred into her own name before her death (see Re Harman, Lloyd v. Tardy, 1894, 3 Ch. 607). Where the appointee predeceases the testator, the question arises Appointee whether the property appointed passes as in default of appointment or predeceasing devolves as the property of the appointor. "The question is one of in- the testator. tention, viz., whether the donee of the power meant by the exercise of it to take the property dealt with out of the instrument creating the power for all purposes, or only for the limited purpose of giving effect to the particular disposition expressed" (per Chatterton, V.-C., Re De Lusi, 3 Ir. L. Rep. 232; adopted Re Pinede, 12 Ch. D. 672; Willoughby-Osborn v. Holyoake, 22 Ch. D. 240). In the case of general powers of appointment over Real estate. real estate where the donee of the power devised her real estate to trustees in trust for A., who predeceased her, it was held there was a resulting the heir of the testatrix (Re Van Hagan, Sperling v. Rochfort, 16 Ch. Div. 18). And the heir was also held to take in the case of a direct appointment to A. (Willoughby-Osborn v. Holyoake, 22 Ch. D. 238; Re Horton, Horton v. Perks, 51 L. T. 420; Coxen v. Rowland, 1894, 1 Ch. 406). trust for In the case of general powers of appointment over personal estate Personal where the will of the donee contained a direct gift of residue to A., who estate. predeceased the testator, the appointed property passed to the next of kin of the appointor (Re Ickeringill, Hinsley v. Ickeringill, 17 Ch. D. 151; Re Pinede, 12 Ch. D. 667; see Re Marten, Shaw v. Marten, 1902, 1 Ch. 314). cases were decided on the construction of particular wills. In other cases the property was held to pass as in default of appointment (Re Davies, 13 Eq. 163; Re Thurston, Thurston v. Evans, 32 Ch. D. 508, where the appointment directed that the property the subject of the power should continue to be held by the trustee of the instrument creating the power; Re Boyd, Kelly v. Boyd, 1897, 2 Ch. 232). The last Where the will of the donee of the power contained an express appointment to A., who predeceased him, and also a residuary gift, it was hold that the residuary legatee took the property the subject of the power (Re Spooner, 2 Sim. Ñ. S. 129; Re Elen, Thomas v. McKeckine, 1893, W. N. See Gale v. Gale, 21 Beav. 349. See the rules laid down, Farwell, Powers, 238, 2nd ed. 90; So A. having power to appoint 1,000l. by will, and which in default of appointment the testator's lifetime: A. afterwards made a codicil giving his residue, and the dividends due at his death on the 1,000l. to his wife: it was held, that the 1,000l. passed to the wife under the residuary gift (Bush v. Cowan, was given over to B., duly appointed it to C., who died in next of kin of the appointor were held to take (Wilkinson v. Schneider, 9 Eq. 423). in the will alone (Boyes v. Cook, 14 Ch. Div. 57; Re Marsh, Mason v. intention. Thorne, 59 L. T. 595). The rule is to inquire whether there is anything in the will inconsistent with the notion that the gift is meant to operate contrary intention" referred to in the section must be looked for Contrary as an execution of the power (Scriven v. Sandon, 2 J. & H. 743). And for the purpose of ascertaining this contrary intention, it makes no diffe ren ce whether the settlement creating the power was made by the testator himself or The contrary intention has been found in the fact that the bequest is of personal estate "not otherwise effectually disposed of " (Moss v. Harter, 2 s. 27. 1 Vict. c. 26, Sm. & G. 458); and also on the comparison of the words of two successive wills (Pettinger v. Ambler, 1 Eq. 510); and also in the fact that the will referred to a power different from the one possessed by the testatrix at her death (Thompson v. Simpson, 44 L. T. 710). It has, however, not been found in a confirmation of the settlement creating the power (Hutchins v. Osborn, 3 De G. & J. 142; Lake v. Currie, 2 D. M. & G. 536). Effect of sects. 24 and 27. General powers exe cuted by wills of prior date. Special power. Powers given to survivor of several. Married women, Powers of revocation in deeds. Coupling sections 24 and 27 together, the true construction of this statute is, that a will may operate as an execution of all powers vested in the testator immediately before his death (Thomas v. Jones, 2 J. & H. 482). General powers have been held to have been executed by wills dated prior to the instrument creating the power (Patch v. Shore, 2 Dr. & Sm. 589; Hodsdon v. Dancer, 16 W. R. 1101); even where the power has been created by the testator himself subsequently to the will (Boyes v. Cook, 14 Ch. Div. 53; Re Hernando, Hernando v. Sawtell, 27 Ch. D. 284; Airey v. Bower, 12 App. Cas. 263). The circumstances under which a testator has executed the subsequent instrument cannot be looked at to ascertain a contrary intention (Boyes v. Cook, sup., disapproving of Re Ruding, 14 Eq. 266; see Thompson v. Simpson, 44 L. T. 710; Airey v. Bower, sup.; Re Wells, Hardisty v. Wells, 42 Ch. D. 646). Where A. bequeathed her residue to such persons as B. should by deed or will appoint, and in default over, and B. died before A., B.'s will did not operate as an execution of the power by anticipation (Jones v. Southall, 32 Beav. 31). Sect. 24 does not apply to a will made in exercise of a special power (Re Hayes, Turnbull v. Hayes, 1901, 2 Ch. 529; Re Moses, Beddington v. B., 1902, 1 Ch. 100; Doyle v. Coyle, 1895, 1 I. R. 205; see Re Wells, Hardisty v. Wells, 42 Ch. D. 657; and see Stillman v. Weedon, 16 Sim. 26, where a special power was executed by will of prior date, which referred to the property which was the subject of the power). A general power given to the survivor of two persons may, under sect. 24, be exercised by the will of the ultimate survivor executed during the joint lives (Thomas v. Jones, 1 D. J. & S. 63). As to whether a special power can be so exercised, see Sugd. Powers, 124, 8th ed.; Cronin v. Roche (8 Ir. Ch. R. 103); Cooper v. Martin (3 Ch. 47); Re Blackburn (1889, W. N. 188). Where a power to appoint among children is to be exercised by the survivor of the husband and wife "after the decease of the other": a will made during their joint lives by the one who survived does not operate as an execution (Cave v. Cave, 8 D. M. & G. 131); but does so operate if subsequently confirmed by codicil after the death of the other (Re Blackburn, Smiles v. Blackburn, 43 Ch. D. 75). Sect. 27 applies to the wills of married women (Bernard v. Minshull, Johns. 276; see the note to sect. 8, ante, p. 444). As to a fund subject to a general power of appointment exercisable and exercised by a married woman's will being liable for her debts, see the note to 3 & 4 Will. 4, c. 104, ante, p. 403, and sect. 4 of the M. W. P. Act, 1882, ante, p. 348. With regard to the exercise by will of powers of revocation and new appointments in deeds, a general devise by will subsequent in date to the deed reserving the power does not per se amount by virtue of this section to an exercise of such power (Re Brace, Welch v. Colt, 1891, 2 Ch. 671; Charles v. Burke, 43 Ch. D. 223, n.). In a case decided apart from this section, it was said that the intention to revoke must be shown; but might either appear by the express terms, or might be inferred from the circumstance that the will would otherwise be ineffectual (Pomfret v. Perring, 5 D. M. & G. 775; Palmer v. Newell, 20 Beav. 38). Pomfret v. Perring (sup.), was the case of a special power of appointment, but the reasoning applied to general powers (Re Brace, Welch v. Colt, 1891, 2 Ch. 677). In another case a power of revocation reserved by deed was not exercised by a will dated before the deed, the date amounting to a contrary intention within sect. 24 (Re Wells, Hardisty v. Wells, 42 Ch. D. 646). Revocation of In the case of appointments by will a general clause of revocation in a testamentary later will revokes an appointment by an earlier will, unless it be entirely appointments. unreasonable that it should have that effect (Sotheran v. Dening, 20 Ch. 8. 27. Div. 99; Harvey v. Harvey, 32 L. T. 141; Re Eustace, L. R. 3 P. & M. 1 Vict. c. 26, 183; Re Kingdon, Wilkins v. Pryer, 32 Ch. D. 604; Cadell v. Wilcocks, 1898, P. 26). The old rule as to this was different (Re Merritt, 1 Sw. & Tr. 112; Re Joys, 4 Sw. & Tr. 214). A testamentary appointment may be revoked by a subsequent will containing dispositions inconsistent with the earlier will, and which does not refer thereto, but is expressed to be in exercise of all powers, &c. (Re Tenney, 45 L. T. 78); and even where not so expressed (Re Gibbes, White v. Randolf, 37 Ch. D. 143; see Cadell v. Wilcocks, 1898, P. 27). 28. Where any real estate shall be devised to any person A devise without any words of limitation, such devise shall be construed without any to pass the fee simple, or other the whole estate or interest which words of limitation shall be the testator had power to dispose of by will in such real estate, construed to unless a contrary intention shall appear by the will. pass the fee. In wills prior to 1838, a devise of lands to a person without any words Rule as to of limitation confers an estate for life only (Hawk. Wills, 130). The wills prior various cases in which such indefinite devises are enlarged to a fee simple to 1838. are considered (Jarm. Wills, 5th ed. 1131; Hawk. Wills, 131; Tudor, L. C. Conv. 166 et seq.; and see Lloyd v. Jackson, L. R. 2 Q. B. 269; Bolton v. Bolton, L. R. 5 Ex. 145; Pickwell v. Spencer, L. R. 7 Ex. 105; Re Harrison, 5 Ch. 408; Lander v. Elsmore, 27 L. T. 603; Re De la Hunt and Pennington, 57 L. T. 874; Yarrow v. Knightley, 8 Ch. Div. 736; Hill v. Brown, 1894, A. C. 123). The mere fact of a devise, otherwise conferring an estate for life only, being to several persons to be divided equally among them, did not enlarge the interest to a fee (Gatenby v. Morgan, 1 Q. B. D. 685). Where a testator devised his real estate to a devisee in fee charged with Cases under annuities, the annuitants took the annuities for life; and it was said that this section. this section of the act only applies to real estate vested in or in the power of the testator, and not to estates or interests created de novo by his will (Nicholls v. Hawkes, 10 Hare, 342). A devise, before 1838, of "rents and profits" to A. without words of limitation passes an estate for life: such a devise, since 1837, passes the fee (Hawk. Wills, 120; Re Martin, Martin v. Martin, 1892, W. N. 120). And a devise of the "income" of land also passes the fee (Mannox v. Greener, 14 Eq. 456). Where A., seised in fee of freeholds, devised them to B., "to be kept in trust for C., that is, B. is to let the premises, and give the rent to my son C. for his support"; C. took the absolute interest (Malcolmson v. Malcolmson, 17 L. T. O. S. 44). Where a testator gave to his niece the house she lived in, and grass for a cow in Gill Field, she took an estate in fee simple in the house, and the right of pasture of a cow during her pleasure (Reay v. Rawlinson, 29 Beav. 88; conf. Pym v. Harrison, 32 L. T. 817, a case under the old law). Lord St. Leonards considered that cases where, after the devise without any words of limitation, there are gifts over also without words of limitation, were not within the purview of the act, and that it would be dangerous to extend it to them (R. P. Stat. 382). 66 Where the particular devise is without words of limitation, a contrary Contrary intention" that the fee shall not pass does not appear from the fact that in intention. other parts of the will words of inheritance have been used (Wisden v. Wisden, 2 Sm. & Giff. 396); nor from the fact of a power of appointment in favour of children and a husband being given to a married woman in a devise in her favour of copyholds to be her separate property (Brook v. Brook, 3 Sm. & G. 280). So, the fact that, in a devise to two persons, power was given to the devisees to sell their property for their life, followed by a direction that the survivor of the devisees should take the property given to the other, was no indication that such survivor should take a life interest only (Chellew v. Martin, 21 W. R. 671). 1 Vict. c. 26, s. 28. The words issue," or "die without leaving issue," shall be construed to mean die without issue living at the death. A contrary intention, however, may be found from the whole will (Crumpe v. Crumpe, 1900, A. C. 127; and see Pelham Clinton v. Newcastle, 1902, i Ch. 34, 45, where the words were held to create an estate in special tail male). A contrary intention was collected from the circumstance, that by the same will an estate was subsequently given which could not come into existence unless the first devise was construed to be a life estate (Gravenor v. Watkins, L. R. 6 C. P. 500). And where a testator devised freeholds to several as joint tenants and to the survivor of them, his heirs and assigns, the latter words indicated a contrary intention within the section, so that the devisees took as joint tenants for life with a contingent remainder in fee to the survivor (Quarm v. Quarm, 1892, 1 Q. B. 184). 29. In any devise or bequest of real or personal estate the "die without words "die without issue," or "die without leaving issue," or "have no issue," or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise provided, that this act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. Old rules of construction as to wills In wills prior to 1838, the words "die without issue" and "die without leaving issue," in gifts both of real and personal estate, are construed to mean the death of the person spoken of and failure of his issue at the time prior to 1838. of his death or at any time afterwards; unless the context shows the Cases under new law. meaning to be confined to a failure of issue at the time of his death. The words "die without leaving issue" in devises of real estate are construed in the same way as the words "die without issue;" but in bequests of personalty they import a failure of issue at the death of the person spoken of (Hawk. Wills, 205, 213). The various cases in which the words "die without issue," &c., occurring in wills prior to 1838 are restrained by the context to mean a failure of issue at the death of the person are considered in Hawk. Wills, 207; Jarm. Wills, 5th ed. 1320 et seq. As to the effect of similar limitations occurring in a deed, see Morgan v. Morgan (10 Eq. 99); Olivant v. Wright (9 Ch. D. 646). It was said, that the object of this section is to redress the inconvenience which had arisen from the words "dying without issue," and other similar words having acquired a legal meaning different from the popular meaning (Greenway v. Greenway, 1 Giff. 138). In the case of wills since 1837, words importing failure of issue have been held to mean failure of issue at the death (Re Mid Kent Co., 11 W. R. 417; Jarman v. Vye, 2 Eq. 784; Dowling v. Dowling, 1 Ch. 612; see Re Allen, 3 Drew. 382). The section applies to a gift over on death without "male issue" (Re Edwards, Edwards v. Edwards, 1894, 3 Ch. 644; Upton v. Hardman, Ir. R. 9 Eq. 157). But the section does not touch the question whether any particular form of words shall import want or failure of issue during the life of the person spoken of, or a want or failure of issue at the time of |