29 F. Cas. 257 | U.S. Circuit Court for the District of Pennsylvania | 1811
The rule laid down in Alexander v. Alexander [supra], as well as in other cases, is, that where there is a complete execution of a power, and something ex abundanti added, which is improper, the execution is good, and only the excess void; otherwise, if there is not a complete execution of the power, where the boundaries between the excess and execution are not distinguishable. To illustrate the rule, the master of the rolls puts the case of the devisee under the power annexing a condition to the appointment, that the appointee should release a debt owing to him, or pay money over, where the appointment would be absolute, and the condition only void. The rule, with the illustration, is decisive of the present case. The condition annexed to the devise to Elizabeth Howell, is perfectly distinguishable from the devise of the £4000 to her, which is complete, and consequently, the excess only is void. We take the reason of the rule to be this, that the appointee under the power, takes under the first devisor, and not under the person appointing; and that by naming the person intended to take, the power is executed, and every thing beyond that which is inconsistent with the power, is void. The leaning of the court is strongly in favour of the execution of the power, if it can be supported, even though it should disappoint the intention of the person executing the power. Of this, there is a strong proof in the principal case before mentioned, where the whole interest devised for the support of Francis, his wife and children, is declared to vest in Francis alone, by supplying the words “if the wife and children shall by law be capable.” It was contended, in this case, that if the whole devise to Elizabeth Howell is not void, still it is to be construed as a devise of 4500 dollars to the persons to whom it is given by the will of Elizabeth Douglass. But there is certainly no ground for this. The condition cannot be void, so far as it qualifies the devise to Elizabeth Howell, and yet good as a substantive devise to those persons of 4500 dollars; more particularly, as such a construction would be to create a devise to persons incapable of taking, for the purpose of defeating the execution of the power in part, and to leave such part undis-posed of. We are therefore of opinion, that the plaintiffs are entitled to a decree for the whole sum of £4000, with interest.
