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![handle is hein.slavery/ssactsengr0768 and id is 1 raw text is: CURTIS V. LLOYD
the children in default of appointment. Sir Edward Sugden, in his observations upon
Badham v. lee (Treat. on Powers, vol. i. p. 80, 6th ed.), also assumes, as I understand
the passage, that the appointment would be void as against the assignees. If, then,
the estate for life and the fee, unaffected by any execution of the power, passed to the
assignees, the bankrupt could not, by a subsequent execution of the power, deprive
them of it: Doe v. [192] Britain (2 Barn. & Aid. 93). The joint appointment of the
father and mother was, therefore, inoperative to confer any estate upon the children.
2. The appointment by the mother, who had survived the father, seems to be.
objected to upon the ground that, by the death of the father, living the mother, the,
limitation to the children living at the death of the survivor had failed, and that.
the estates attempted to be created by the appointment of the mother must also fail.
For this purpose the rule is referred to, that if limitations can take effect as contingent.
remainders, they shall not take effect by way of springing use. But this reasoning:
assumes that the limitations created by the mother's appointment are to be subject to.
the same rules as those made directly to the children. The latter are to take effect
only in default of appointment, either by the two parents, or by the survivor; and I
have not heard any sufficient reason to shew that the estates created under the prior
powers of appointment are affected by that infirmity which has defeated the ultimato
limitation. Be it that the estates limited to the children cannot take effect; how is.
that to affect the estates created by the mother's appointment, which originated in,
her act after the father's death, and could never have taken effect as remainders'
These remainders having failed by the death of the father in the lifetime of thel
mother, the fee vested in the heir of the father, the settlor; and why should not such
fee be devested by the appointment of the mother, and thereby effectually given to
the appointees ? Suppose there had not been in the settlement any such limitation to
the children in default of appointment, the state of the property would have been pre-
cisely the same.
[193] It was argued that the estates limited by the execution of the power are to.
be considered as if they had been created by the deed creating the power. For some,
purposes this is true ; but the rule was referred to for the purpose of building upon
it this argument, that limitations, which may possibly take effect as remainders, shall
not be considered as springing uses, and, that if considered as remainders, they would
have failed by the death of the father in the lifetime of the mother. No authority,
however, has been produced to shew that this rule applies to such cases as the present,.
which would, in effect, be to subject to the same rule a contingency depending upon,
future events, and the result of a discretion to be exercised at a future time.
Being unable, therefore, to find any principle or any authority for considering the
appointment by the surviving mother as void, and finding it clearly provided by the,
settlement that, in default of any joint appointment by the father and mother, the
power should be exercised by the survivor, I cannot concur in that part of the judg-
ment of the Master of the Rolls which considers such appointment as inoperative.
Being of opinion that the assignees are entitled, as against the appointment of
the bankrupt, but that the appointment of the wife surviving is good against them,
the decree, upon this bill, must be confined to an account up to the time at which tho
title accrued under the appointment of the wife, with a declaration that such separate:
appointment is good.
[194] CURTIs v. LLOYD. Nov. 25, 26, Dec. 8, 1838.
[See Hall v. Hall, 1879, 48 L. J. P. 60.]
A Plaintiff may obtain the common order dismissing the bill, with costs, at any time
before the cause has been actually heard ; and even after it has been called on for
hearing.
When this cause was called on before the Lord Chancellor for hearing, Mr. Wake-
field, of counsel for the Plaintiff, stated that it had come on rather unexpectedly, in
consequence of several other causes, which stood before it in the list, having been
struck out of the paper; and he requested that it might stand over until the next day,
4 MY. & CR. 192.](ViewImageLocal?handle=hein.slavery/ssactsengr0768&div=1&collection=&method=preview&ext=.png&size=3)