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As to (1), a mere residuary devise can never (apart
from s. 27 of the "Wills Act), in the absence of all reference
to the ])()wer, carry jiroperty over which the testator had a
power of a})})ointment merely. Thus, in lie Willianis,
Fovlkes V. Williams (1^89), 42 ('h. D. 93, a testator, after
several specific bequests, left all his real and jiersonal estate
to his widow. He had no real estate of liis own, l)ut he
had a power of appointment in her favour over some real
estate : — flehh tliat the will showed no intention of
executine; the power, and that evidence was not admi>sihle
to sliow that, as he had no realty when he made the will, he
could onlv have Ijeen referring to the realty which he could
appoint bv iiis will. In Re Wait, Workman v, /'ch/fave
(1885), :50 Ch. D. (;i7,the testator left "my estates at B."
to a devisee, ^sow here the description, though general,
referred to specific property. The court accordingly
admitted evidence to satisfy condition (2), viz., to show-
that the testator by " my estates at B. " must have meant
the estates there over which he had a power of a])point-
ment, since he had no estates of his own theiv.

Owing to condition (1) it is very seldom that a general
description of personalty without any reference to the
power can be sufficient to execute the power to appoint
it so as to enable evidence to be admitted to satisfy
condition (2). See In re JJuddleston, Bruno v. Ejjston^

Chap. HI. — ({enehal Desckiption of Pkoperty. 143

[189i] 3 Ch. 3it5. Whore, however, there is no direct Art. 24.
reference to the power, a general reference to some power p.^^.^ ,.^.
or other may be sufficient to enable the court to admit
extrinsic evidence to iiU'iitify the property or the power.
Thus, such expressions as '* I bequeath and a{)poinr "' (In
re Mayliew, Spencer v. Cutlnish, [1901] 1 I'h. (177), or "' T
bequeath all the property I can in any way dispose of"
{Re Milner, Brai/x. Milner, [1899] 1 Ch. 563), have been
held sufficient to secure the admission of evidence that the
testator had only one power of appointment at the date of
the will, that it was over specific property, and that the
objects of the power were those ])ersons to whom siu-h
property was bequeathetl.

Hitherto we have been speakin^- of powers of a[)[ioint- Kxecution
ment in existence at the time the instrument in question powers by
was mack'. Whether a power not in existence when the anticipation.
instrument was made can be executed by even the most
specific reference in such instrument to the property over
which the power is afterwards acquired, is open to doubt.
Special ])rovision has lieen made by the Wills Act, 1837
(7 Will. 4 A: 1 Vict. c. ^tl), for the execution by will of
subsequently aLvjuircd gcncial powers. See infra, p. 117.
(Jutside that tlic law is vcrv unsettled. In Stillnian v.
Wtedoii (184S), Id Sim. 2(i, a testator sjx'cifiealiv referred
in Iii- will to certain pr<)|ierf v \\ liich thru licldiincd lo liiiii.
and which lu* be(|ueaflied lo his children. Sultse(juently,
he by deecj settle(l tlii> iiropert v. retainin;:," a power of
Uppointniciit over it aiiioii;^ his cliiMreu. < )ii hi- death it
wa< held that tlw will was an execution of tln' power.
The jud;;e, however, seemed to think that s. I'T ol tlu-
Wills Act, 1837 (see ////>.(. p. 117), apjilicd to all kind- of
powers. //' /T Hiii/fs, 7'iirn/iiill v. //iii/rs, [M.MKIJ 2 ( 'h.
332, liYKNK. d.. thoii;:lit that thi< de<-i-.i()n mi;:ht |io<>ihly

b«' supported on tie- ;:ii>Mnd that the property wa- -| i-

fically describeti, and the will inii-t he taken to he -p<-akiiie
a-^ if it were maile innnediately hel'ore the te-tator- death.
in the cu-e bef«jre himself, however, he held that the

144 Vww III. — Dksciui'Tion' o\- I'uoI'kuty.

Art. 24. >nl)sc(jU('iit spci-ial jiowcr wa.- not executed li\' the preeediuu-
I'iu-a. (.S). ^^'ll- Hi^ decision \va> :itiiniie(l liy tlie ( 'oiirt ol' A|i]ieal
([UtOl] 2 ("h. ")2i»), which, while it refused to deci(h'
whetlier. as a inaiter of law, ir is possible to I'xeoute a
power l)y anticipation, ludd that, if it is possible to tlo so,
the in-truineitt to ha\-e that eti'ect must be so clear as to
place Iteyond doubt the maker's intention to execute the
power if and when it arises.

The rules here laid down aj)ply to the execution of
special ))0wers, either l)y will or deed, and of "(Mieral
powers by deeds. As to the execution of general j)owers
b\- wills, see Infra, p. 147.

Akt. •!'). — Wliat is not included under a General

A specific description of property is not enlarged by a
general description contained in the same instrument.
Nor will a general description include property within
such general description where it appears from the
general scope of the instrument that such property
was not intended to be referred to.

Authorities:. "' Nothing. I consider, is better settled than that these
general words, even when they would pass the land e.r vi
terniinorum, are restricted by the recntals. and what is
called the scope of the instrument. This is illustrated by
the case of Jlopk/nson v. Lusk (180")), lU Beav. 215, before
Lord RoMiLLY. The principle is, that though words of
specific description are not easily dealt with, yet general
words are ; and that though general words may be in
themselves large enough " to comj)rise the properties in
dispute, "yet if, u))on the whole scope of the instrument —
as to which especial regard is to be had to what I call
introductory recitals— it appears it was not the intention
of the parties to })ass those proj)erties, it will not pass
them"" (yf'r/- Jessel, M.K.. in Ilotvurd v. Earl of Slireicsbiiri/

Chap. III. — Geneu.a.l Description of Property. 145

(li!>74:), 17 E(|. o'if<, at p. 3*J1. Cited and approval hy Art. 25.
Chitty. L.J.. in U'illianu^ v. Finckney (1897), 77 L. T.
700. at p. 705).

•• We gather from the decisions the propositions that
general words, whether descriptive of parcels or found in
the estate clause, are susceptihle of being controlled or
moditied l)y otlier ])arts of the instrument, and by what
has been appropriately termed the scope of the deed read
as a whole, and that for this purpose negative words are
not requisite. There does not appear to be any sound
distinction l)etween general words, whether found in the
parcels or in the estate clause. ... In arriving at
our conclusion, wo have not lost sight of the general rule,
that where the operative part of a deed is clear and
uuanibiguous. it cannot be cut down by recitals" (per
Chitty, L.J.. in WiUlams v. Pinckneu (1897), 77 L. T.
700, at p. 705).

It is to be noted that the rule deals merely with general Extent of
descriptions, as oi)})Osed to specific or particular descrip-
tions. Tile question, then, as to the relative effect of
conflicting particular descriptions in the recitals, and in
the operative part< of instruments, does not arise. As
to these, however, the rule is clear. As put by Lord
lioMlM.V. in llollidmi v. (h-evton (1852). 11 Tx-av.
407, '"It i- inip(js-iblc by a recital to cut down the |ilain
effect of the operative jtart of a deed."

The rule >tateil ill tin- article i^ akin to that «-tatei| in llnl.- akin
Article 2, ."n/'in, as to amhignou> wonl-. I >e-criplions in ,i','„i,ij;i„',„.s
general ttirms are alwavs treated a> ambiguous when in any «<inls.
wav opposeil to particular de>cription>^ in any other part of
the instrument, or when opposetl to what appears to be
the scoj)e of the instrument. They aic lialih- to be Hniited
in their meaning thereby.

The mo>t U'Ual in«taiice> nl' the ajipHcaiion ol' ilii> rnh- IllustnitioiiH
arise on the construction of deeds in connection with 'he ]^{ |!j'||^. "^""'

146 1'aKT 111. DkscKH'TION of I'lMI-KltTV.

Art. 25. '"all the estate"' clause in the dpcratiM' \v()r(l<. A single
illustratidii of its a|i]ilicati(»ii in this respect will -iitticc.

In Williams v. rinrlmy (1^1)7). 77 L. T. 700, A. had.
snhjoc't to a life estate in 13., tlic whole tee in certain
lands. A. and B., on the marriage of ('., conveyed,
"according to their respective estates and interests," the
fee, '' and all the estate right title claim and demand of the
said A. and B. respectively in or to arise out of the same
premises " to trustees by way of settlement on C. and the
issue of the marriage. B. had, besides his life estate, a
mortgage on the fee at the time of the conveyance. No
mention of this was made in the recitals, though two other
mortgages were set out: — //</</, that B.'s mortgage ilid
not pass.

Another common example of its application is in con-
nection with general words added to the parcels in a
conveyance. Thus, in Jeniwr v. Jenner (1866), 1 Eq. 361,
a marriage settlement contained recitals of agreements to
settle certain |)roperties in Yorkshire therein specified.
In the operative words, there was a conveyance of these
specified properties, and '' all otlier the freehold heredita-
ments (if any) in the county of York, of or to which the
grantor was seised or entitled for an estate of inheritance."'
The settlor owned an estate of inheritance in a freehold
hereditament in Yorkshire other than any of those sj)ecified
in the recitals : — Held, that it was not included under the
general words.

And see Crompton v. Jarmtt (1885), 30 Ch. D. 298 ;
Jn re Hodgson, 2\iijlor v. Hodijson, [181>8] 2 Ch. 545 ;
In re Walpole's Marriage Settlement, Thomson v. Walpole,
[1903] 1 Ch. 928 ; and supra, \k 31.

( 1^7 )




26. General gifts execute (jeneral potrers of ((ppoinfmenf - - 147

27. Bemhuinnjifts rami lapsed and void deviaes and bequests - 151

28. Wlien "'■estate" will include hotlt real and personal estate - Itil

29. "i>(»rf" inclitdesleasehold asfcell as freehold and copyhold

interests in land - - - - 11J4

Art. 26. — General Gifts execute General Powers
of Appointment.

A GIFT, in a will, of property described in a general
manner, whether by way of residue or not, will include
not merely all property within the general description
belonging to the testator, but also all property which
the testator had at his death a power to appoint by his
will in any manner he might think proper, unless a
contrary intention shall appear by the will itself.

"A gf'iKTal (Icvisf of the r<';il estate ol the testator, or ol'SidiDn -JT of

1 I.. I'iiii.. • 1 -.1 \Vills Act,

the ri-al estate ol the testatoi" in aii\' ]ilace or iii tlie ]v^^-

oceu|»ati<jii ol any person nientiiHied in his will, or other-
wise de-cribed ill u general niaiiiHT. shall he coiistiMied to
iiieludf aiiv real estate, or aii\' I'cai estate to which such
description shall extend (as the ease may lie), wliiih he
niav liav»; jiower to a)i|ioiiit in aiiv inanm-r he iiia\ iliiiik
jM'ojicr, :ind -hall ii|)<'i;ili" as an r\ccnl ion ol' such |io\\cr.
unlesH ;i contrary intention >hall a|>|M;ir by the will ; and
in like inaniDT a befjiicst ol the |Mr-(iii;d c-talc nl' the
testator, or aiiv liequest of jMi-oiial |iro|tcilv dc-ciihcd in
a general manner, -hall he eon-lriied to include ;in\
per-fJiial e-tate. or anv per-oiial e-tate to which -iicli

I. J

148 Part TIL — Dkschiption of Proi'kktv.

Art. 26. (l('si'ri{iti()ii shall extcml (as the cax- uv.w lie), wliicli he
niav liavc power to a|i]Htiiit in an\' inaiuicr he may tliiiil.
l)roj)('r, tuul shall oporato as an execution of such power,
unless a contrary intention shall appear l)y the will '*
( 7 W. 4 .\: 1 Vict. c. 2r.. s. 27).

The words used in the section to descrih(> the jtowei- ot"
appointment coniin<i; within its provisions, are a jiower
"to appoint in any manner he may think jiroper.'' This
means "to appoint ht/ will in any manner he may think
proper" (per BowEtf, L.J., in l*liillij>s v. i'nijU'n (ii^^^^J.
•43 Ch. D. ^'I'l. at p. 233). The section accordintrly does
not apply to any power which does not enable the testator
to appoint (1) l)y will ; (2) without restriction as to mode
of appointino- ; and {'^) without restriction as to objects of

(1) A power to appoint by ^V'(^<\ only woulil not, while

a power to appoint by will only would, be within
the section (1 Su^-. Powers, p. \Wd).

(2) If the instrument creatinn- the power re([uired any

express reference to the ])ower in the will
execiitinii it. the power woidd not he within the
section (/•*/</////'.< y. i'aijle>j, skju'u).

(3) A power to ap})oint amone- any ])articular class

as children, or for any particular ])urpose as
charity, wouhl not be within it (Clorcs y. Aivdiy
(1850), 12 Beay. (104).

It may be noted that s. 27 does not in any way dispense
with the formalities as to sionature and witnessino; re(|uired
l)y ss. D, 10, for the yalid execution of a ]iower by will.
Under Lord Kinesdo\vn's Act a ^vill made abroad is
admissible to probate if made in accordance with the local
law. The local law may not require a Nvill to be executed
with the formalities required by ss. 1.) and 10 of the
Wills Act. Where a will not so executed is in question,
difficulties may arise as to its eftect upon a general

Chap. iV.— Special Kules as to AVills. Ui>

power to appoint property in Enirlaml. The law seems tor Art. 26.
the present to be settled in this way : ^Vhere the will is
atlmissible to probate merely through the operation of
Lord Kinssdown's Act. and contains no evidence on the
face of it showino; that it was intended to be construed as
an Enghsh will {Hummel v. Hummel, [18it^] 1 Ch. 642),
even where the effect of it, if construed by the law of the
testator's domicile, would be to dispose of all the property
the testator could by law dispose of (In re Scholefiehl
ScholeneU V. St. John, [1905] 2 Ch. 408), s. 27 will not
operate to make it a good execution of the power.
AVhere, however, the will contains such evidence, s. 27
will apply {In re Price, Tomlin v. Latter, [lUOO] 1 Ch.
442), except when the instrument creating the power
shows that execution by a will made according to English
law was required {Bavretto v. Youwj, [1900] 2 Ch. :{39).

If the power be one within the section, it will be
executed by a general devise or bequest which does not
rt'fcr to it directly or indirectly. So will it be by a devise
or bequest by way of residue (Att.-Gen. v. Wilkinson
(18G0), L. R. 2 Eq. 810), and even, it would seem, by the
mere bequest of pecuniary legacies when the property
under the power is personalty (Hawthorn v. Shedden
(l8o(J), '.\ Sm. k G. 29!^ ; approved in Re Wilkinson
(1869), L. K. 4 Ch. :>87). And where the testator has
only a power to appoint generally a jiortion of the fund
subject to the power, a residuary oi" general bequest will
operate as an appointm«'nt of that ])()rtion (Jn re Jones,
Greene v. Gordon (1880), M < Ii. I >. *'>'>).

The et^'eet ol an appointment made bv residuary devise or
be(juest and one ma<le liv s|)eeitic execution of the power is
different, liy an appointment made 1)V a resiihiary tievise
or bequest, the jirojiertv ,»ul)ject to the power l»ecomes
simplv a part of the residuary estate, and so primarily
liable for the payment of the d^'ecased's del)ts. iiy a
8|)<;cific execution ol' the power, tiie property «ubject to the

150 P.MM' III. DksckII'TIoN- of Pltol'KHTV.

Art. 26. j.owcr is not lialilc for the (Icccascd's dclit- till the rest of
the assots is exhausted ( \\'/'lh',(„is v. \\'llh\(»ts, [I'.IOO]
1 ( 'li. I'r2).


To provont a general or residuary devise or bequest
from operating as an appointment, it is necessary tliat a
contrary intention "siiall a])ji('ar hy the will." In h'e
J^tii{in;/^s Sefflemenf (1.S72). !.. I{. 1 1 Ivp 2{'>6, it was hehl
tiiat ti)es(> words did i]ot prc\tMit the court from, taking
into consideration surrounding circumstances to ascertain
whether there was or was not a contrary intention, Tiiis
decision was dissented from in Boi/es v. Cook (16b()),
14 Ch. D. 53, where it was pointed out that the words of
s. 27 prohibited the court from gathering a contrary
intention from any other source than the will itself. This
decision led to another error. In /iV Mui't^h, Mason v.
Thome (1888), 38 Ch. D. G30, it was held, that where an
instrument cremating a power, expressly declared that it
should not be executed by a will unless the will expressly
reterred to it. this power woidd nevertheless be executed
by a general bequest in a will not i-eferring expressly to
it, since the intention not to execute the power did not
appear by the will itself. This decision was overruled in
PhlWps V. ('a//% (188'J), 43 Ch. D. 222, where it was
pointed out that the question in such a case was not
whether there was any intention not to appoint on the
testator's part, but whether the terms of the power — which
required a special reference to th(> power to effect a valid
execution — were comi)lied with. I'hillips v. Caijleij has
been followed in lie Davies, Ifavies v. Dacies, [18i>2]
3 Ch. 63.

Where pow er Where a testator at his death possessed a general

is create<l . i •!• i i • -n mi

subsequently power 01 appouitment, a general gitt by nis will will

to will. execute such power even when the power was conferred

on him after the date of the will, and the instrument con-

ferrinfj; it contained words showiufj that it was intended

that the power should be executed by a future instrument

Chap. IY. — Special Rules as to Wills. 151

(Aire(/y. Bower (1887). 12 App. ('as. 263). A secon.l Art. 26.

point upon which there was some doubt (1 Jar. on Wills.

p. 685), was whether s. 27 could be held to operate to

defeat limitations in default of appointment in a settlement

made by the testator himself subsequently to the date of

his will. It was contended that, though, under s. 27. the

intention not to execute the power must appear by the

will, ycr the will and the subsequent settlement really

constituted one instrument, and in order to construe the

will it was necessary to read the settlement which showed

the intention to take the ])roperty out of the operation of

the antecedent will. In Aire;/ v. Boirer, supra, the House

of Lords held that in view of s. 23 of the Wills Act, which

expressly enacts that no conveyance or other act made or

done subsequently to the execution of a will of or relating

to any real or personal estate therein comprised, except an

act by which such will shall be revoked, shall prevent the

operation of the will with respect to such estate or interest

in such real and pers(jnal estate as the testator shall have

power to dispose of by will at the time of his death, the

antecedent will must defeat the subsequent deed.

The decision was upon a general power, but the
jirincijtle of it would apply to special powers, provided the
antecedent will displaycil an intention to execute the
special power within Ait. 21.

AuT. 27. — licsidiitiri/ Gijfs include all Property nut
otiierivise effectively dinposed of by the Will.

(1) A gift of property in a will, described in a genei-a!
manner by way of residue, will include all jiroperty
within the general description which is not otiierwise
effectively disposed of by the will, unless a clear inten-
tion is expressed that some of this shall in no event
form jiari of lh<; residue-


Art. 27.

1'ai:t III. — Dksckiitiox of rnoi'KUTY.

i'2) The fact that a residuary ^nl't is of " all other
my property," or that a residuary devise is coiitined to
real estate of a certain kind, is not sufficient to exclude
from it properties bequeathed or real estate of that
kind devised the gift of which has failed.

(3) But a lapsed or revoked share of residue will not
fall into the residue which is effectively disposed of
unless a contrary intention appears.

(4) Where after a residuary gift there is a second
residuary gift of property of the same kind, the second
residuary donee will only take lapsed shares of the

as to


'' 1 take the rule to l)c {)lain that, iu geueral, the
residuary gift carries every lapsed legacy, and every
legacv -wliieli on any ground fails to take eliect ; but that
is subject to this other rule, that it a testator has shown
some intention with regard to the excepted property
inconsistent with its ever falling again into the residue,
effect must be given to that intention " ( per Fry. J., in
Bli.jht V. JIarfnoU (IS.SIV), 'IW Ch. D. 218, at p. 22(»).

" To exclude a particular })ortion of the personal estate
of a testator iiot otherwise disposed of by his will, tioni a
bequest of his residuary personal estate, it is necessary to
find an intention not to include that portion, even if it is
his" {per Lindley, L.J., in Re Bagot,Paton v. Ormerod,
[1893] 3 Ch. 348, at p. 3.57).

'■'■Bernard v. Minshull (1859), John. 276, woW defines
what passes under a general residuary gift. It passes
everything not disposed of, whether the testator has not
attempted to dis])Ose of it, or whether the disposition fail-

Chap. IV. — Special Uulks as to AVills. 1o3

bv lapse or any other event "' {pf>' Lopes, L.J., lie Jniaot. Art. 27.

Paton V. Orineroih siij>ni, at ii. 350). ^ T, >

^ ' 1 -^ 1 ara. (1).

" Unless a contrary intention shall appear by the will, Residuary
such real estate or interest therein as shall be comprised, 's^^.^ji'ofj "25 of
or intended to be comprised, in any devise in such will the Wills
contained, which shall fail or be void by reason of the "
death of the devisee in the lifetime of the testator, or by
reason of snch devise being contrary to law or otherwise
incapable of takin«; effect, shall be iiieludetl in the
residuary devise (if any) contained in such will " (7 W. 4
cV: 1 Vict. c. 20, s. 25).

'' The recent authorities have fully estalilished that Construction
s. 25 of the Wills Act is to be construed upon the "^ ^' ~^'
principle of assimilating a residuary devise of real estate
with a like bequest of ]>ersonalty" ( pei' Stuart, V.-C, in
Carter v. JIa.<iceU (1)!'57), 20 L.J. Ch. 570, at p. 577).

An example of a clear intention that certain })ro})erty
shall not be included in a residuary bequest occurs in
In re Frafer, LoivtJur v. Fraser, [1904] 1 Ch. 72G.
There a testator after a general bequest of his personalty
to trustees, made a gift of his realty and chattels real to a
brother. He afterwards added seven codicils to his will, the
last of which was executed in .luly. LS'.KS. In tliat codicil
he rccitccl that his brother was dead but he did n(»t revoke
th«' devise and b(*(|U('st to him. He had at that time entereij
into a contract to huy certain rents issuing out (»f Icm-i-IkiMs :
— Held, upon liis d<'ath that these rents were chattels real
and that they were undisposed of by the will. And see
Jliii<iiiis \. J)aivs<>it, [11)02] A. (', 1; Toole \. IliimHton,
[lUOl] 1 I. \{. i'.N.'l ; he Sinriiir. [liMKi] \V. N. 1 13.

A lapx-d legacy falls into the residuary gilt not merely
when the laj»>e is caUM'd by the death of the legatee liel'ore
the te.stutor, but when it fails from any other cauM' what-
ever. Thus, where accumulation of income is directed
for a lon<.'»'r jieriod tiian the law allows, the inconn* aceru-
ing after tlj<- h-gal period will iail into the residue ( /// n


Paki hi. — Dksciuptiox (if I*koi'i:ktv

Art. 27.
Para. (1).

of througli

share of

Where lapsed
under a
general power
go into

l'opi\ Sliarpt \. .]fars/iall, [IDOl] 1 ( 'h. CI : ('/. In re
Travis, Frod v. Greatore.r, [lUOO] 2 ('li. ."> 1 1 : ami /// re
Biv/erson, Bird v. Lee, [lilOl] 1 Ch. 71.")).

Tlio lionerality of a residuary ^it't wa.s at unc time
.supposed to be subject to two limitations besides that
stated by Fry, J., in Bliolit v. IfartnoU, supra, namely,
an express intention on the pai-t of the testator tliat flie
])roperty should be excepted in any event from the roidue.
The first of these limitations was that if j)ro])erty was
undisposed of by the ^vill througli a mistake as to the
facts, made by the testator, and ai)])earino; by the will,
this pro})erty would not fall into tiic residue Tliu.-. if
there was an untrue recital that certain property belonged
to a stranger which in fact belonged to the testator, and,
in consequence, the will did not aTrcinjjt to dispose of it,
this property would not pass under the residuary gift, but

Online LibraryArthur UnderhillThe principles of the interpretation of wills and settlements → online text (page 18 of 42)