Mitchell v. Denson , 29 Ala. 327 ( 1856 )

WALKER, J.

The only question arising on the record, not settled by the former decision, is, whether the facts stated in the amended answer amount to an execution of the power of appointment, conferred on Mrs. Denson by the 8th clause of her husband’s will. The power of appointment thus conferred could not be exercised, without an unequivocal •designation of the person who was to take the property after the termination of the life estate. Courts of equity aid the defective execution of powers, but not the non-execution of them. Sugden on Powers (page 392) has the following language : “It is an immutable rule, that a non-execution •shall never be aided.” It is not sufficient that it was contemplated or intended to exercise the power, arid that the party was prevented; as for instance, by death. The same idea is expressed in Story’s Equity Jurisprudence, (vol 1,194, § 171,) as follows : “ It is not sufficient that there should be a mere floating and indefinite intention to execute the power, without some steps to give it legal effect. Some steps must be taken, or some acts done, with this sole and definite intention, and be such as are properly referable to the power. — Sugden on Powers, 392, 379 ; Eonblanque’s Equity, m. p. 322, note h ; Coventry v. Coventry, 2 P. Williams, 222 to 233.

In the case cited from 19 Yesey, by the counsel for the appellant, there was an unequivocal act in writing, in the shape of a bill in chancery, asserting a claim to the benefit of the appointment, and showing that the appointor regarded the appointment as made in his own favor — Irwin v. Farrer, 19 Yesey, 86. There is this difference between that case and this : here there is no act done with the intention of making the appointment to Mrs. Mitchell. She who held the appointing power did nothing more than to express an intention, which she might at any time retract, to give the property to her daughter, and consulted a lawyer as to whether it was necessary to make a will in order to dispose of the property. There is no act done with the intention to execute, and “ properly referable to,” the power.

According to the authorities cited, it is olear that the facts set forth in the amended answer do not amount either to an execution of the power, or an attempt to execute it, which, though defective, will be aided.

The decree of the court below is affirmed, at the costs of appellants.

Bice, 0. J., not sitting.