Cave v Cave
| Jurisdiction | England & Wales |
| Judgment Date | 04 March 1856 |
| Date | 04 March 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 339
BEFORE THE LORDS JUSTICES.
S. C. 2 Jur. (N. S.), 295. See In re Blackburn, 1889, 43 Ch. D. 78.
f fO f, ?cX, 'tAlf- /.v/.-r- _.-'/ :' / c I [131] cave v. cave. Before the Lords Justices. March 4, 1856. [S. C. 2 Jur. (N. S.), 295. See In re Blackburn, 1889, 43 Ch. D. 78.] Where a power to appoint among children was in default of any joint appointment by the husband and wife to be exercised by the survivor after the death of the other: Held, that a will made during their joint lives by the one who survived did not apeak at his death, so as to be an execution of the power. This was a special case, transferred to their Lordships' paper from that of Vice-Chancellor Wood; and the question was, whether a will ought to be held as speaking at death of the testator for the purpose of operating as the execution of a power only exercisable after the decease of a co-donee of the power, who was alive at the time of the execution of the will. The power was contained in a marriage settlement of July 21, 1827, whereby the trust fund was limited in trust for such of the children of the marriage as the husband and wife should jointly appoint, or in default of such appointment, then as the survivor at any time or times "after the decease of the other" should by deed or will appoint. The husband had in 1847, during his wife's lifetime, made a will referring to the power, and appointing the fund in favour of some of the children. The wife died in 1848. There was no other attempt to exercise the power. The husband married again, and his will was thereby revoked as to his own property given by it, but a question was raised as to whether it could be held to be an execution of the power as speaking at his death. An eminent conveyancer having advised that the point was not sufficiently clear to enable the trustees to act without the opinion of the Court, the present special case was settled to obtain that opinion, and their Lordships consented to hear it without the will being 340 WEIGHT V. VANDEKPLANK 8DEQ.M.&G. 131. proved, on an undertaking [132] to prove it if it should be held to be a good exercise of the power. ' Mr. Osborne and Mr. Fane, for different parties interested in...
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