The times. [volume] (Richmond, Va.) 1890-1903, 1898-04-01

lJh6 rest OF the OPINION ID merely
discussion Of the instructions to the
jury, with the ruling of the court upon
each)
EXERCISE OF A POWER.
Wake and wife VS.. Moore and ais. Az
hrmed. Opinion by Judge Rely
b. owning jointly and equally with A.
the land ia controversy conveyed his
moiety together with certain personality
to A. upon trust to hold same for the sale
and exclusive use and benefit of Nirg MA
b.. wife Of grantoD and her children,
with power TO A. when requested by said
Virginia in writing. deeming II for the
benefit Of said Virginia and her children
to sell all or any part thereof and iein-
vest proceeds in otner property selected
by her or deemed by him more prontable
10 her and her children reserving to salo
Virginia the right 10 dispose of all said
property by will.
Held: The words FOR the sale and sep
arate use Of herself and children" 'no
similar words merely indicate the motiy,
for the gilt to the mother. and vested
no interest in the children. She took an
exclusive estate I'm fee in the land. anc
she and her husband having duly con-
veyed the same, complainants have no IN
terest in Il and no right TO maintain this
suit wallace and wife VS.. Dold's eX'cr's
3 Leigh 21S: S,inson ex'c'rs VS. Day etc;
/ Rob 1875: Penn. etc, vs.. Whitehead, ETC.,
Il Graft sos: Nye VS.. Lovitt %. va. 40
and many other Virginia cases. Here
the case IS stronger In favor OF an alb
sOlute estate in the personal property and
an equitable estate in fee in the wlte
than In any of the cases cited above. The
exercise Of the power of sale vested in
the trustee was not only restricted TO
request by the wife. but the power was
reserved to her to dispose of ali the
rroperty by will and that even 10
stranger TO the exclusion OF her children
This power was wholly inconsistent Win
the idea that II was intended that the
children should take an estate under the
deed. Grantor would not have given the
children a joint estate with their mother
and then have conferred or her the tuule
power to give II away to others
9. The execution OF the deed by her was
substantial compliance with the provi
sion Of the trust making request from
her Ia writing a prerequisite 10 sale by
he trustee q Parry on Trusts sec 1S4;
Montifore VS.. Brown, II. J.. Cas-. Al
Walter VS.. Palmer. 80 Cal. 1850; and the
necessary inference from his conveyance
OF the land Is that he deemed II for the
benefit OF the benefciaries. so the pro-
visions OF the trust were in this respect
compiled with.
Q. The deed made no reference to the
power OF sale conferred on Virginia 49,.
and A. and does not purport to have been
made by him as trustee the execution
OF power is matter OF intention, but
II is not necss sary that the intention be
expressed in the conveyance or other IN
srume't. IF the donee OF the
rover intends TO execute and the mode
he In other respects uneNchanreaole
that intention. however mamie sted.
whether directly or indirectly. positively
or by just implication will make the exc
cutiOn valid and oneratiye: II Is sufiici-
ent that the Intention TO execute appear
by words acts or deeds demonstrating II.
ploRge VS.. Niles. ] Story A6; Funk VS..
Egeleston. 80 ILL.,. SIS.
l. Where person. who has power Of
disposition over properly and also owns
an interest In 1t, executes an instrument
disposing of It without expressly referring
to the power. the instrument. will be
deemed as intended as disposition OF
hi sinterest ard not as an exercise Of the
rover or the transfer OF his interest will
satisfy the terms OF the instrument but
N he has no interest or though he have
an interest II the instrument convey
larger interest than he owns. then IL will
be considered to be an execution OF the
power, because necessary to satisfy the
terms OF the instrument and the apparent
intention OF the party Only where the
words OF the instrument may be satisfied
without supposing the intention to execute