Evans v Evans Evans v Saunders
| Jurisdiction | England & Wales |
| Judgment Date | 03 August 1853 |
| Date | 03 August 1853 |
| Court | High Court of Chancery |
English Reports Citation: 61 E.R. 601
HIGH COURT OF CHANCERY
Appointment. Revocation. Powers, Exhaustion of.
[654] evans v. evans. evans v. saunders. May 26, 28, August 3, 1853. Appointment. Revocation. Powers, Exhaustion of. The facts of this case and the principal question were the same as in Evans v. Saunders, ante, p. 415; and on a rehearing the judgment was affirmed. General propositions concerning the nature, exercise and exhaustion of a general power to appoint by deed or will, and concerning powers of revocation and new appointment. The first of these causes was a creditor's suit affecting the estate of Mrs. Evans; and the material question involved was the same as that which had been previously argued and decided in the special case of Evans v. Saunders (ante, p. 415). But the Plaintiff in the suit not having been made a party to the special case, and insisting on having the point again argued, it was arranged that the parties to the special case should again appear on this occasion, and that the hearing should be treated both as a hearing of Evans v. Evans and a rehearing of Evans v. Saunders. The facts and the different documents are stated fully in the report of Evans v. Saunders. the solicitor-general [Sir E. Bethell], Mr. C. P. Cooper and Mr. Tripp, for the Plaintiff, contended that the will of Mrs. Evans operated as an execution of her power. They stated the different transactions set forth in the report of Evans v. Saunders, and proceeded to argue as follows :- the solicitor-general. All the attempted exercises of the original power are destroyed, as if they had never been attempted or intended. The power of disposition by testamentary act'reserved to Mrs. Evans remained unaffected, undisturbed by what had been done. [655] The authorities that were cited in Evans v. Saunders against the exercise of the testamentary power are all cases relating to a single power. This is not a single but a double power. If there is a power in a deed to appoint by deed, and in the same deed a power to appoint by will, these are different powers. Then, if I have exercised a power or authority given to me, and reserved authority to undo what I have done, and to exercise the authority anew, that which is reserved by the right of exercising the authority anew is no more than the old power, which the very language of the reservation purports shall revive and be restored. The power reserved is a power to declare a use; why should that be considered a new authority ? All that is required by the party exercising the power is that there shall be a reservation to him of a power of annulling his existing intention, and of being restored to his original position as donee of the old power. Now the judgment in Evans v. Saunders involves this proposition, which I submit is erroneous, viz., that the original power was a single power, and not two distinct powers. I contend that there are two distinct powers ; and that the power to appoint by will was not affected by the exercise of the power to appoint by deed, that exercise being afterwards annulled. This was the view taken by Mr. Preston (in his Treatise on Abstracts). (The learned counsel also referred to 1 Sug. Pow. 6th edit. p. 470: 2 Bolle's Abridgment, 262.) Hele v. Bond (2 Sug. Pow. App. 575) is in accordance with the note in [656] Eolle, and shews that the last appointment arises out of the original power. (He referred also to Montague . Kater (20 Law Times, 323, and 22 Law Journ. (N. S.) Exch. 154).) May 28. Mr. C. P. Cooper and Mr. Tripp, with the Solicitor-General. Assuming, for the purpose of the argument, that we are wrong in saying that the original power here was a double power, still Montague v. Kater contains dicta bearing on this case, and from which it must be collected that the original power was revived. 602 EVANS V. EVANS 1 DEEWKY, 657. (The learned counsel referred to the passages commented upon in the judgment. They referred also to Chance on Powers, vol. 1, p. 490.) Secondly, this is a creditor's suit to' have the debts of A. Evans paid out of the price of her estate, which she has devised on trusts for sale; and, admitting the power not to have been well exercised by will, the Court will aid the defective execution in favour of creditors. (2 Sug. Pow. 6th edit. 135; Toilet v. Toilet, 2 P. Will. 490). Mr. Malins and Mr. Pitman, for the trustees of Mrs. Evans's will, in the same interest. Without discussing whether the original power was a double or a single power, at anyrate Mrs. Evans had an absolute power, and she exercised it from time to time. The question is, did she intend to do anything more by the successive transactions than to undo what she had previously done? She need not have reserved anything but a power of revocation: the reservation of a power of new appointment was unnecessary; such a power would arise of itself. Therefore her reserving to herself a power of new appointment by deed does not [657] deprive her of her power to appoint by will. Montague v..Kater is inconsistent with Evans v. Saunders. Mr. Daniell, for Thomas Jones Saunders, the remainder-man. The original power is clearly a single power. (He referred to 1 Sug. Pow. 271.) It is equally clear that a power to revoke and a power to create new uses are two distinct powers. As to the argument that the reservation of a power of new appointment is redundant, he referred to 1 Chance, 111, to shew that a power of revocation does not always involve a power of new appointment. In this case the original power contains a power of revocation, but no power of new appointment is expressly reserved. But, whether a new power of appointment is implied or not by a power of revocation, it clearly may be reserved; and if it is, it is then clearly the only power. He referred to 1 Sug. Pow. 467; Brudenell v. Elwes (1 East, 442).) With him, Mr. Greene. He referred to The Countess of Roscommoris case (6 Br. P. C. ed. Toml. 158). When the new set of powers and limitations created under the original power was introduced into the original settlement, it wholly displaced the original settlement; nothing of the old power remained. It is said the deed of 1836 revoked the power to appoint by deed contained in the deed of 1835; but there is no indication of any such intention in the deed of 1835. The power to revoke applied to what went before it; the revocation [658] by the deed of 1836, therefore, only applied to the limitations preceding the power of appointment by deed. As to Montague v. Kater; there there was a special power to appoint to children given to the father and mother, and in default of appointment a clearly distinct power. All that was done in that case was under the joint power; the new power had never been exercised. Mr. Bevir, for the purchaser, took no part in the argument. the solicitor-general, in reply. The proposition on the other side is that a power is discharged the moment it is exercised, although the instrument exercising the power contains a power to revoke such exercise, and although that power of revocation is actually exercised. An instrument made in exercise of a power is to be construed according to the intention of the party. If the instrument first made in exercise of a power of appointment is accompanied by a power to revoke, even although it also reserves a new power of appointment, yet if that particular deed is revoked, the effect is to take it out of the way altogether, as not at all expressing the intention of the maker of the deed. And if the power of revoking, being exercised, prevents the instrument having any operation, how can the instrument so annulled by the exercise of the power of revocation have the effect of discharging the original power of appointment ? The question is, can it be said that by the instrument which has been absolutely annulled the original power has been executed and is at an end 1 Has any estate been created under that power? None. If an [659] estate is given subject to a condition, but the interest arising under that condition is determinable on another condition, then if the second condition occurs, the estate is remitted to its original ownership. Here 1DEEWRY,660. EVANS V. EVANS 603 is an estate made with a condition that the party creating it may revoke it, and that right to revoke is exercised, and the thing intended to have been done is annulled; the estate is then left to go in the original channel. The argument on the other side would go the length of annulling the terms of the original contract. The power was a power appendant, intended, if exercised, to be exercised at the pleasure of the donee, with a power of annulling what he might do. The several deeds here are all emanations from the original authority, and when obliterated the Plaintiff is reinstated in his former ownership. Hele v. Bond is only an authority for this, that if there is a power of appointment with a power of revocation, and the power of appointment is exercised without reserving a power of revocation, the instrument takes effect, and the original power of revocation cannot be resorted to; that was the ground on which Hele v. Bond was decided. The Court did not say in that case that if a power of revocation had been reserved it would have been a new power, but spoke of it as a reservation of the old power of revocation; so here the reservation of a power of revocation is not a reservation of a new power, but a preservation of the old power. The learned counsel commented on Montague v. Kater, and contended that in this case, the last deed being only a revocation, the original power was restored. [660] the vice-chancellor [Sir E. T. Kindersley] took time to consider, and on the 3d of August delivered the following judgment:-This matter comes before the Court on the rehearing of a special case, and also on the hearing of a cause of Evans v. Evans on further directions and a petition, the question to be determined in the...
To continue reading
Request your trial
-
Walker v Armstrong
...& Cr. 711); Elbeck v. Wood (1 Russ. 564); Plow-[53fj]-den v. Hyde (2 De G. M. & G. 684) ; Parsons v. Freeman (3 Atk. 741); Evans v. Evans (1 Drew. 654) ; Vawser v. Jeffery (16 Ves. 519); Thurston v. Cunningham (2 W. Black. 1046); Wigsdlv. Smith (1 Sim. & St. 321 ; 5 Russ. 299); Williams v. ......