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and illustration adopted by Lord Redesdale has brought the simple act of admission into the possession within the scope of the principle. What occurs, therefore, in page 150 of this Work, should not be read without regard to the controuling authority of this Decision of the Chancellor of Ireland.
In the note to pasre 113 of this volume, cases when the a.
10 m gent s autho.
are produced to show that the authority of the rity must be agent to treat and contract under the 4th and 17th wntinsclauses of the Statute need not be in writing; but I do not recollect that I have adverted to the dif. ference in the wording between the sections regarding contracts, and the 1st and 3d, which relate to actual conveyances, in respect to the agent's authority, which, on the last mentioned occasions is directed to be in writing. This distinction was recognised and established by Lord Redesdale in the same great case of Clinan v. Cooke.
As I may, perhaps, be judged to have used too much boldness in commenting upon the largeness of Lord Mansfield's doctrine in his views of this great Statute, I am glad to retreat within the shelter of Lord Redesdale's authority, by which I find myself supported in the case of Shannon v. Bradstreet, reported in the above collection of Irish Chancery cases (vid. pag. 66.) The case of Lord Massey t,. Touchstone, which the same Reporters have given in a note in page 67, affords us a pleasing specimen of the legal orthodoxy and judicial firmness of the Irish bench in the manly discriminating opinion pronounced by Mr. Justice Kelly in opposition to the decisions of Lord Mansfield in Yea v. Bucknell, and Goodtitle v. Bailey, reported by Cowper, and in support of Lord Kenyon's restoration of the' law in the case of Hodsden v. Staple, 2 T. R. 684. When the reader is perusing the note in page 275, of this Work, he is recommended to turn to the said case of Shannon v. Bradstreet. whether In which last mentioned case the reader will also
part-perfor- . ( _
mance by a find the following material point on the subject of life, with a part-performance. If tenant for life, with a leasing Fe°aT^rg,°of a power, enters into an agreement by article, to make truttomake a *ease Pursuant to his power, this agreement shalj » lease by bind the remainder man, for the making of the conpower, will tract without following it up by an actual lease is to mainder" be classed under fhe cases of defective executions,
• in which Equity will relieve where they stand on valuable consideration, and not of simple non-execution, in which Equity cannot give relief. Suppose, then, that article had been out of the way, and the contract had rested on parol, agreement, could a part-performance by the tenant for life only bind the remainder man? This would raise a question upon the Statute of Frauds, and upon this Lord Redesdale inclined to be of opinion that the tenant for life would be bound according to the extent of his interest, but that the remainder man might protect himself under the Statute; for the ground of the efficacy of partperformance is fraud, and fraud is personal, and could hardly be made to extend to the remainder man.
Of the be- In note 27, page 64, et seq. of this volume, I have ?ations!°" collected and contrasted the authorities on the effect of a bequest to relations. I had overlooked the case of Titcher v. Biles, 1 T. R. 435, on that subject; but my attention has been since called to it by the pote of Messrs. Scho lies and Lefroy, in page 113, of the above-mentioned collection. The testator
bequeathed to his several relations, A, B, C, &c. pecuniary legacies, and after some other bequests he devised the residue of his real and personal estate to his wife for life, with power for her to dispose thereof by her will "to and amongst all such of his relations as should be living at his decease, in such shares as his wife should think proper." The wife appoin e i to the lessor of the plaintiff; and one objection to the execution of the power was, that the wife could only give to a relation who would take within the degrees mentioned in the statute of distributions, and that the word 'relations' had received this construction in Harding v. Glyn, 1 Atk. 469, and in Hands v. Hands, at the Rolls, 24 June, 1782; but the court held the appointment to the lessor of the plaintiff good; that it was a discretionary power, and might be exercised in favour of any one relation; and Lord Mansfield, in giving judgment, observed, that "if the wife had died without making an appointment, it would have been a trust, and would have devolved on the court, who must have been governed by the statute of distributions." In the case of Mahon v. Savage, 1 Chan. Ca. in Ireland, Temp. Lord Redesdale 112, it was observed by the Chancellor, that where the bequest is general to relations, it must be void for uncertainty, or the court must call in the aid of the statute of distributions to restrain it; and his Lordship recognised the distinction between a discretionary trust for distribution among relations, and a general bequest to and among relations. It was by the same case resolved, that where there is a legacy to the executor to be distributed among the poor relations of the testator, a relation who was poor at the time of the testator's death, but became rich before distribution, was not entitled. It was further held, that if a poor relation died before distribution, his claim was not transmissible to his personal representative; and furthermore, that where a person had power of distribution among poor relations, he might distribute among all poor relations, however reT mote; but where the court was called upon to distribute, in failure of the person so empowered, it would confine itself to relations within the statute of distributions.
Parol evi- To assist the reader's apprehension of the doctrine mitted**- °f admitting parol evidence to show the contents pressionami °^ instruments suppressed, and of the presumption "poliation. against a spoliator, he is referred to Lord Redesdale's observations in Bowles v. Stewart, in the said collection of Irish cases, page 222; and see page 85, of this volume.
As to the To the same judicious compilation above menquit/ in" d'. ti°ned, I am indebted for the opportunity of referaes ofdefec- rjng niy readers to the case of Wilkie v. Holmes,
tive execu- ° *
tionofwiiu. the perusal of which will afford illustration and confirmation to the distinction drawn in page 331 of this work, on which the principle upon which equity. aids the defective execution of a will is supposed to turn. By a settlement, power was given to husband and wife by deed, and to the survivor by will, to be duly executed, to charge the lands settled with 3000/. such charge by will to be only for payment of their or either of their debts, or for younger children. The wife surviving, by will executed in the presence of two witnesses, charged the estate with her husband's debts and her own debts, and 700/. a-piece to two daughters, if her personal esT tate should be insufficient for those purposes. Ixird Hardwicke, Chancellor, was of opinion, that the will was not duly executed within the meaning of the power, but that the court ought to aid the defective execution, in favour of the creditors and younger children, considering their claim as under the settlement, and the mode of executing the power as depending on the settlement, and not on the Statute of Frauds, except as the words duly executed were construed by reference to that Statute. But if this had been a voluntary execution of the power, and not for payment of debts, or other valuable and meritorious consideration, it must have stood on its own ground, and could not have been supported. See the above case under the name of Wilkie v. Holme, 1 Dick. 163.
In page 126, the Reader will find, that on a slender foundation (being the only one which existed when that page was written) I have supposed a contract for the growing produce of land, as being made in prospect of severance, not to be for any interest in the land itself, and so not to fall within the fourth section of the Statute. A case, however, was determined last Trinity Term, in the Court of King's Bench, (vid. 6 East, 602, Crosby v. Wadsworth) which has decided the law otherwise, and placed such a contract within the reach of the fourth section of the Statute, as being a contract, or sale of an interest in, or, at least, an interest concerning lands. The subject matter is to be considered with reference to the time of the bargain, when the crop was an unsevered portion of the freehold. In the case last above alluded to, it was observed, that the Statute does not expressly and immediately vacate contracts concerning land, if made by parol, but that it only precludes the bringing of actions to en