EXECUTION OF POWERS IN EQUITY. When a donee of a power purports to appoint, and the appointment is invalid at law on account of a defect in form, equity anomalously gives it full effect at the suit of two classes of appointees: first, those who gave value, including creditors;1 and secondly, those whose position is said to constitute a meritorious consideration, limited roughly to charities,2 wives, and children. Further, when a donee with present power to appoint binds himself by a valid legal contract for valuable consideration to exercise his power, but dies without so doing, the contract is held a good execution of the power in equity; not, surely, on the theory of specific performance, for the defendant is the remainderman, who is not in privity with the covenantor. Rather, then, is this a second kind of defective execution. This conclusion coincides with two decisions that covenants running to the second class of appointees — wives and children are also good appointments in equity, though unsupported by that valuable consideration required as a basis for specific performance. Though equity, therefore, will help out these two sorts of defective execution in favor of both classes mentioned, no aid will be given where there is a mere declaration of intent by the donee, or when the donee's agreement to appoint is unenforceable at law, though it be for value.10

7

8

9

The conclusion reached above will be of aid in solving the question as to the effectiveness of a covenant to appoint in respect to the time of its execution. If the covenant is to be enforced against the remainderman as a defective execution of the power, then it cannot be effectual unless a formally correct appointment made at the same time would have been valid. Now, with reference to the time when a power may be exercised, powers not presently absolute fall into two divisions. The first consists of powers the effectiveness of an exercise of which depends on the happening of some contingency. Here no reason appears why an appointment made at any time, though before the contingency happens, should not be good on the happening of the event specified. The second division comprises those cases where the donor imposes a limitation, not on the circumstances under which an execution of a power will be effectual and the appointee take his appointed estate, but on the conditions under which alone the donee may exercise his discretion and make an appointment. In the former division

the donor restricts the estates over which the donee's disposition will be effectual; in the latter he also circumscribes the discretion of the donee in appointing those estates. Here, therefore, a premature appointment is ineffectual. In deciding into which of these divisions, determined as they are by the intent of the donor, a specific case falls, it must be noted that more weight is to be given the nature of the condition than the mere chance of wording. Though the dividing line is thus one fixed by questions of fact, yet its existence is clearly established by authority." In the first division

1 Wilkes v. Holmes, 9 Mod. 485.

2 Innes v. Sayer, 7 Hare 377.

Tollet v. Tollet, 2 P. Wms. 489.

Smith v. Ashton, 1 Ch. Cas. 263.

Coventry v. Coventry, I Str. 596; In re Dykes, L. R. 7 Eq. 337

6 See Shannon v. Bradstreet, 1 Sch. & Lef. 52, 63.

7 Fothergill v. Fothergill, 1 Eq. Cas. Abr. 222, pl. 9.

8 Sarth v. Blanfrey, Gilb. 166.

Piggott v. Penrice, Prec. Ch. 471.

10 Blore v. Sutton, 3 Meriv. 237.

11 See Machir v. Funk, 90 Va. 284, 289. Contra, Johnson v. Touchet, 37 L. J

Ch. (N. S.) 25.

are cases where the contingency is the donee's surviving some one.12 or coming into possession of a life estate; 18 in the second, cases where powers are given executors to sell on the termination of a life estate,14 and cases of testamentary powers."

15

Accordingly, in the case of covenants, we find that those made before the specified event are, in the first class of cases, good executions in equity,16 and in the second, invalid." The former are instanced by a series of cases where successive life estates were created with a power to any tenant in possession to appoint by way of jointure, and covenants to appoint made by life tenants before their subsequent coming into possession were held to be good equitable appointments, on the ground that the requirement that the life tenant be in possession affected only the arising of the appointee's interest, and was not a prescription of the time in which the donee was to make the appointment.18 This same result was recently attained in a more extreme English case, where the power was created by the donor in his will, and the covenant was made before the donor's death, though after the execution of the will. Charlton v. Charlton, [1906] 2 Ch. 523. The case would of course have been correct had the covenant been made after the testator's death, but the present decision, though convenient and desirable, is difficult to support, for it is hard to see how a power can be exercised before it is created. It may, however, be followed on the reasoning that the operation of the covenant, the defective appointment, is suspended until the power is created, and that it then acts as an execution of the power from that time,19 as a will passes after-acquired property.20

EFFECT OF BEQuests and Devises to a CorpORATION IN EXCESS OF CHARTER LIMITATIONS. — At common law a corporation has the implied power to acquire, by either purchase or devise, realty and personalty for the purposes of its business. Often the state, however, for reasons of public policy imposes by law express limitations either in amount or in kind. In almost every state except Pennsylvania the usual limitation against "holding" interdicted property is construed as including a limitation against “taking" such property.1 Whether we construe this latter limitation as preventing the implication of a grant of full power to take property, or as merely inhibiting the use of that power, the determination of the rights of a corporation in personalty bequeathed to it in excess of charter limitations must be the same. On the death of a testator, his personal property passes to his personal representative for administration. If the corporation is seeking to get the bequest from him, the court should not aid it in abusing its powers and a fortiori

12 Sutherland v. Northmore, I Dick. 56; Dalby v. Pullen, 2 Bing. 144. 13 Cf. Allford v. Allford, infra.

14 Sweigert v. Berk's Adm., 8 Serg. & R. (Pa.) 299; Booraem 7. Wells, 19 N. J. Eq. 87; Carlyon v. Truscott, L. R. 20 Eq. 348.

15 Reid v. Shergold, 10 Ves. Jr. 370. See In re Parkin, [1892] 3 Ch. 510, 517.

16 In re Lambert's Estate. [1901]

17 Thacker v. Key, L. R. 8 Eq. 408.

Ir. Ch. D. 261.

18 Allford v. Allford, Gilb. 167; Jackson v. Jackson, 4 Bro. Ch. *462; Affleck v. Affleck, 3 Smale & G. 394.

19 Cf. In re Anstis, 31 Ch. D. 596.

20 Cf. Holroyd v. Marshall, 10 H. L. Cas. 191.

1 Wood v. Hammond, 16 R. I. 98; Leazure v. Hillegas, 7 Serg. & R. (Pa.) 313.

8

in asserting power to take if it does not possess it.2 Should the executor hand over the property which the corporation could not otherwise obtain, such payment would obviously be wrongful, and if the executor were irresponsible, the corporation should be forced to repay. The effect, however, of a subsequent act of the legislature enlarging the kind or amount of property which the corporation may hold, should vary according as we construe the limitation to be a denial of full power or a prohibition against the use of power. In the former case the act cannot divest the rights of the next of kin; in the latter, it removes the objection to the described legatee's taking, and the corporation should be allowed to receive the legacy.*

In the case of devises the construction of the limitation is all-important. Title to real estate vests in the heir and devisee eo instante with the death of the testator. If we say the corporation has no capacity to take title, the devise must vest in the heir on the death of the testator, and no subsequent act of the legislature can deprive him of this property without compensation. This construction of "lack of power" has been adopted in some states." Their statutory policy, which is particularly harsh to devises to corporations, might justify that interpretation. But the better construction would seem to be a mere prohibition against the use of power. It is settled that in the case of a grant of land in excess of charter limitations neither the grantor nor his heirs can upset the conveyance; that the grantees of the grantee corporation get a good title; and that the latter even has a marketable title for purposes of specific performance. The suggestion that the corporation may be a conduit of title without actually having it and that the status quo between the grantor and the corporation grantee is not disturbed solely for reasons based on some idea of estoppel, is not borne out by the cases. They are practically unanimous in saying that title passes to the corporation and that the state only can object in a direct proceeding to declare the charter forfeited." No real distinction is seen in this respect between a grant and a devise. Both are executed; both need the operation of law for their effect. Moreover, the analogy of the English mortmain laws sustains this interpretation. Under these acts title passed to the corporation, whether by grant or devise, subject to being forfeited by the overlord on office found. Though these laws do not obtain in the United States save in Pennsylvania, yet the same policy against the accumulation of property by the "dead hand" which dictated them, underlies in large part the statutory limitations under discussion. Hence, under the latter title should pass to the corporation, and any subsequent act of the legislature enlarging the amount of property the corporation might hold, should operate as a waiver of the state's right to declare the charter forfeited.10 And such was the holding of a recent Massachusetts Hubbard v. Worcester Art Museum, 80 N. E. Rep. 490.

case.

2 Trustees of Davidson College v. Chambers' Executors, 3 Jones Eq. (N. C.) 253, 273. Cf. Case v. Kelly, 133 U. S. 21.

8 See Orr v. Kaines, 2 Ves. 194.

4 Chamberlain v. Chamberlain, 43 N. Y. 424; Jones v. Habersham, 3 Woods (U. S.) 443, 475; aff. 107 U. S. 174.

5 Matter of McGraw, 111 N. Y. 66; The House of Mercy v. Davidson, 90 Tex. 529.

6 Alexander v. Tolleston Club, 110 Ill. 65; Shewalter v. Pirner, 55 Mo. 218; Lancaster v. Amsterdam Improvement Co., 140 N. Y. 576, 586.

7 Cooney v. Booth Packing Co., 169 Ill. 370; Hickory Farm Oil Co. v. R. R., 32

Fed. Rep. 22.

8 Shelford, Law of Mortmain, 1-21.

9 Cook, Corp., 4 ed., § 694.

10 Farrington v. Putnam, 90 Me. 405; Hanson v. Little Sisters of the Poor, 79 Md. 434. See Cromie's Heirs v. Institution of Mercy, 3 Bush (Ky.) 365.

2

CLAIM IN RESPECT OF A POSSESSORY TITLE TO LAND RESUMED BY THE CROWN. - The English Privy Council recently decided that one who had had adverse possession of land for ten years acquired such an interest that, when the crown resumed the land as if by eminent domain, his executors, as soon as the period of limitation had run after his entry, might require the land to be valued with a view to compensation. Perry v. Clissold, [1907] A. C. 73. Since the original owner was by that time surely barred under the English rule allowing adverse possession to be tacked even between successive disseisors,1 and since the valuation was to be of the whole fee as of the time of resumption, there is an inference supported by another case that the executors would recover the whole value. On the one hand, this case does not purport to require compensation for a right in the land acquired if such a thing be possible — after the state's title accrued. Such reasoning would oppose the general rule that a subsequent grantee & or heir of one whose land is taken acquires no right to compensation, which is a personal claim. And by way of analogy, a claimant of government land who has no adverse possession, but merely an expectation of staying on the land to obtain a grant of title, is recompensed only according to the probability of the fulfilment of his expectation. On the other hand, the court found in the resumption act under which the land was taken no authority given to the crown to enter under the absent owner in such a way as to disturb, as the owner could, any present vested right of the trespasser. This accords with the idea that the title taken by the state is not one of privity." Since, then, the adverse possessor acquired no new right in the land after it was taken, and since the crown did not take under the former owner, the question is, what is the vested right of an adverse possessor?

Two series of articles,' relied on by the court in defining this right, point out that originally at common law possession was protected against ownership. Then very early a disseisee was given a right to enter or gain back possession from his disseisor. This right was a mere chose in action, at first absolutely non-transferable and good only against the disseisor himself. It was founded simply on former possession and ouster. But the possession of the disseisor-the tangible thing was the property, - transferable, inheritable, devisable, giving dower and curtesy, subject to execution and escheat. Possession with no outstanding rights to take it away made a complete ownership. The right to get back possession is now generally transferable and follows the land against most possessors. It is so extensive that today a possessor who is free from such a right outstanding against him is commonly thought to have in himself, in addition to his possession, a valuable abstract right called title. This change in point of view, this turning of the absence of outstanding rights into the presence of an affirmative title, should not, logically, change the nature of the right of possession when the possessor is dealing with strangers to outstanding rights. As against all who have no outstanding rights, the possessor should have

1 See Willis v. Earl Howe, [1893] 2 Ch. 545.

2 See In re Harris, [1901] I Ch. 931.

3 Patten v. Fitz, 138 Mass. 456.

4 Moore v. City of Boston, 8 Cush. (Mass.) 274.

5 Elsworth, etc., Ry. Co. v. Gates, 41 Kan. 574. But see Spokane, etc., Ry. Co. v. Ziegler, 167 U. S. 65.

See Emery v. Boston Terminal Co., 178 Mass. 172.

7 Prof. Maitland in 1 L. Quar. Rev. 324; 2 ibid. 481 ; 4 ibid. 24, 286; Prof. Ames in 3 HARV. L. REV. 23, 313, 337.

the ownership. This proprietary character of possession appears today in cases allowing an adverse possessor to maintain ejectment a proprietary action — against any one not claiming under the outstanding title. It is further supported by a few cases like the present. The adverse possessor whose land is taken loses, as between himself and the state, not the mere expectancy of a property right, but one already in existence, for which logically he should have full recompense at once. Practically, however, to protect the state and the outstanding right of the former owner, it is better to have the money paid into court, the income and eventually the principal 2 to be paid to the adverse possessor unless the original owner appears before he is barred.10 It is immaterial how long the adverse possession has lasted,11 or whether it began in a wrongful entry, but it must be more than the possession of a tenant, even though the landlord does not appear.12

EQUITABLE ESTOPPEL OF MUNICIPAL CORPORATIONS. Cases occasionally arise the peculiar hardship of which pleads for a doctrine of equitable estoppel against municipal corporations which are asserting a right or setting up a defense based on the ground that they have acted ultra vires. The general rule, however, is well settled that, while a municipal corporation can be estopped from asserting an irregular exercise of corporate power, it cannot be estopped from asserting a lack of power. The reason for allowing the privilege is hardly because, as is sometimes said, the corporation is but a trustee for the inhabitants, for acquiescence by the latter in the ultra vires act will not estop them, though acquiescence in a trustee's breach of trust estops a cestui. Nor can the suggestion that the corporation is the agent of the inhabitants, binding them by wrongful acts within its powers but not by acts wholly beyond its powers, be pressed far; for the inhabitants can never ratify, as can an ordinary principal, an act done wholly in excess of authority. Rather, the reason is the strong public policy of restraining these corporate powers strictly within their grant. This is founded on the vital consideration of the necessity of saving municipalities from fraud and ruin, induced by the misconduct of corrupt officials.

2

Several classes of cases, however, which seem exceptions, must be carefully distinguished. Often it is not clear whether the corporation has exceeded its powers or only abused them. This is frequently the case with municipal bonds. But where the decisions seem contrary to the general rule it will usually appear that some sort of power to issue can be found, in which case irregularities in its exercise cannot be urged against a holder for value. Also, while a municipality may not be liable on a contract ultra vires as framed, yet, if it has accepted benefits under the contract which are

945.

Asher v. Whitlock, L. R. 1 Q. B. 1. Contra, Doe d. Carter v. Barnard, 13 Q. B.

See Andrew v. Nantasket Beach Ry. Co., 152 Mass. 506.

10 In re Loder, 19 N. S. W. Eq. 41.

11 See Geyde v. Commissioner of Public Works, [1891] 2 Ch. 630.

12 Geyde v. Commissioner of Public Works, supra.

1 Ottawa v. Carey, 108 U. S. 110; McPherson v. Foster Bros., 43 Ia. 48.

2 See Schumm v. Seymour, 24 N. J. Eq. 143, 154, 155; Halbut v. Forest City, 34

Ark. 246.

Lewis v. Shreveport, 108 U. S. 282.

4 Marcy v. Oswego, 92 U. S. 637.