Cooke v. Cunliffe.

The case was now argued by

Malins, for the plaintiff. The question is, whether the estates over which Bryan Cooke had a power of appointment passed by his will. It is contended that they did, and that the plaintiff takes by appointment under the words "all my real estate over which I have any disposing power." Standen v. Standen, 2 Ves. jun. 589; Bailey v. Lloyd, 5 Russ. 330.

[LORD CAMPBELL, C. J. A man may have a disposing power without acting under a power in a settlement.]

The words in the will clearly have reference to some enabling power; they are the same as if he had said "estates over which I have a power of appointment." He uses words which are proper to include every thing which he can give either by virtue of ownership or of the power of appointment. According to the construction which must be contended for by the defendant, some words of the will are rendered inoperative. It is enough if a testator by any expression shows clearly that he means to execute a power; no specific reference to it is necessary. Bennett v. Aburrow, 8 Ves. 609; Wallop v. Lord Portsmouth, 2 Sugd. Pow. App. 11; 1 Sugd. Pow. 244, 7th ed.; Curteis v. Kenrick, 3 Mee. & W. 461; s. c. 7 Law J. Rep. (N. s.) Exch. 169. In Adams v. Austen, 3 Russ. 461, the question was whether a general devise like this passed the produce of the sale of lands; it was assumed that it passed the lands themselves over which the testatrix had a power of appointment. There is certainly no case which goes the length of holding that such a devise as the present is not an execution of the power, and the 27th section of the 7 Will. 4 and 1 Vict. c. 26, amounts to a legislative declaration that it is so.

Peacock, contrà. This is a pure question of intention to be collected from the words of the will. The rule is stated in Roake v. Denn, 4 Bligh, (N. s.) 3, to be, that there must be a reference to the power or the property which is the subject of it, or the provision made by the donee of the power must be ineffectual unless it be an execution of the power. Here none of these conditions exist, or if they do there is a clear intention shown not to execute the power. At the time of making his will, the testator, Bryan Cooke, had a power to appoint real estates under the will of Mary Puleston, but he had also real estates of his own over part of which he had a disposing power, but of part of which, being settled, he could not dispose. There is, therefore, real property to which the words of the devise may be properly referred without assuming that they mean to execute the power.

or subject to the said term of 500 years, of the castle, manor, lands, and hereditaments devised by the will of M. Puleston.

The defendant's points were: that the will of B. Cooke did not exercise the power of appointment or selection by the will of M. Puleston limited to B. Cooke and Frances his wife, and the survivor of them, over the castle, manor, lands, and hereditaments devised by her will. That the term of 500 years limited by the will of M. Puleston is a subsisting term, and that P. D. Cooke is only tenant for life of the same premises. 36

VOL. VII.

Cooke v. Cunliffe.

[PATTESON, J. You read "real estate over which I have a disposing power" as meaning "all my unsettled estates?"]

Yes. But there is besides a clear intention shown not to execute the power. Each of his younger sons is assumed to be entitled to a sum of money under the wills of Mary and Frances Puleston without his then appointing it to them, for he bequeathes to them such additional sum as will make up 8,000l. Therefore he clearly does not mean to execute one power, and the same absence of intention must extend to the other also.

[LORD CAMPBELL, C. J. May not the intention be that the eldest son shall take in fee subject to the term?]

The sum which the children take under Mrs. Puleston's will is not fixed, except it be by appointment, and therefore Bryan Cooke could supersede the term in all respects, except as to the 1000l. settled upon the daughter upon her marriage. He could not prevent the term existing, but he could destroy it, except so far as it gave power to raise 10007. for his daughter. Then, as to the construction of the words, "all my real estate" cannot be satisfied by an estate over which the testator has merely a power of stating in what proportions it shall be divided-1 Sugd. Pow. 367, 7th ed.-"where, however, the power is not referred to, the property comprised in it must be mentioned, so as to manifest that the disposition was intended to operate over it; the donee must do such an act as shows that he has in view the thing of which he had a power to dispose." If this case had occurred since the new Wills Act, this property would not have passed. Cloves v. Audry, 12 Beav. 604.

Malins replied.

LORD CAMPBELL, C. J. The rule has been long established, that the donee of a power must either expressly refer to the power or to the subject-matter of it. Here the will of the donee of the power makes no reference to the power, and I think no distinct reference to the subject-matter, for the testator merely says, "all the residue of my personal estate, and all my real estate over which I have any disposing power, I give, devise, and bequeathe to my eldest son, his heirs and assigns." At this time, he had family estates of his own in Yorkshire, part of which were settled and part not settled, and all the words may be satisfied by holding that he had in contemplation only his own paternal estates, without at all referring to the Ewloe estate. This must be considered as the law stood before the passing of the Wills Act, (7 Will. 4 & 1 Vict. c. 26,) for under that act I should have no doubt in saying that the testator had no intention to include the Ewloe estate. The term for five hundred years created by Mrs. Puleston's will was necessarily to take effect, and the whole will shows that the testator contemplated its taking effect, and from that I infer that all the younger children were to be provided for under it, and it seems improbable that the testator would do that by which prima facie at least the terin would be defeated. If the intention had been to exercise a power over the Ewloe estate, the testator would

Cooke v. Cunliffe.

not have made it pass under the same words as those used to pass the paternal estates which he held in fee simple. He had not the same disposing power over the Ewloe estate as he had over the estates held in fee-simple. Looking, therefore, to the language used, it seems to me that the intention of the testator was to leave the disposition of the Ewloe estate as it was in Mary Puleston's will, both as to the fee-simple and the other estate for years. It is not necessary to refer to the authorities cited, because this case must rest on general principles applied to its own particular circumstances, and I am prepared to certify that the term for five hundred years in Mary Puleston's will is a subsisting term, and that the plaintiff is only tenant for life of the hereditaments demised by that will, subject to the said term.

PATTESON, J. The question is, whether there is any thing to satisfy the words "over which I have a disposing power," and so render it unnecessary to have recourse to the estate under Mary Puleston's will, over which the testator had a power of appointment. I think there is abundant property to satisfy those words, because it appears that the testator was tenant for life of some estates under Mary Puleston's will, and that he was seized in fee of other property. Although the words are not of much use as applied to the estates in fee, still I think, looking to the effect of the words, that it was the intention of the testator to apply the words to such estate. As to Mary Puleston's will, I cannot, I must say, understand it very well. The five hundred years' term was to commence from the death of the survivor of the testator and his wife, and in default of their exercising the power of appointment; and the power of appointment was not given to the testator to be exercised subject to the term. But be that as it may, I do not think that the testator had any disposing power; and if he had, I do not think that he intended to exercise it. As to the provision in Mary Puleston's will, it cannot be supposed that when the testator had exercised the power given by that will in favor of his younger children, which depended on the existence of the estate of the tenant for life, he would make a will, the effect of which would be to defeat the creation of the estate of the tenant for life.

ERLE, J. The plaintiff alleges that his father intended by his will to exercise the power given him by Mary Puleston's will, and that his father's will contains words referring to that power. Those words can in one sense be applied to the Ewloe estate, because it was held for life by the testator. He might, therefore, call it "my estate," but the words are capable also of another application, and of being applied to the Yorkshire estates; and I think, giving effect to the words of the will, their more obvious meaning is, that the testator did not intend to exercise the power of appointment over the Ewloe estate, but that he did intend to pass his Yorkshire estates. He does not say, all his real estate, and all the real estate over which he had a disposing power, but all his estate over which he had any disposing power, that is, the real estate he had of his own, as contradistinguished from

Cooke v. Cunliffe.

his wife's, some being settled and some held in fee simple. He meant, I think, the estates over which he had the absolute power of disposal in fee-simple, because he makes a devise in fee, and he had not any such general power of disposing as regards the property in Mary Puleston's will. I think that construction is confirmed by what seems to be conceded, namely, that the testator intended that each of his younger children should take 1,000l. As to the effect of the execution of the power upon the term of 500 years in Mary Puleston's will, it is contended, on the one hand, that if the testator appointed the feesimple, the term would be destroyed, and the provision for younger children defeated, but, on the other hand, that as the term was once recognized by the testator on the marriage of his daughter in 1818, it must be intended to exist for the benefit of the other younger children, and that the testator's will was an exercise of the power subject to the term of 500 years. But I should have expected to find the term mentioned in the will which intended to execute the power, and that after it the fee-simple would have been limited; and by holding that there is no appointment of the fee-simple, the term of 500 years remains a subsisting term, and the younger children would have a clear 1,000l. according to the declaration of the trusts in Mary Puleston's

will.

A certificate was accordingly sent to the Vice-Chancellor that the term of 500 years is a subsisting term, and that the plaintiff is tenant for life of the hereditaments devised by the will of M. Puleston.

The place in which a lost article is found does not constitute any exception to the general rule of law, that the finder is entitled to it as against all persons except the owner.

The plaintiff, having picked up from the floor of the shop of the defendant a parcel containing bank-notes, handed them over to the defendant to keep till the owner should claim them. They were advertised by the defendant, but no one appearing to claim them, and three years having elapsed, the plaintiff requested the defendant to return them, tendering the costs of the advertisements, and offering an indemnity. Upon the defendant's refusal, an action was brought in the county court, and judgment given for the defendant: — Held, on appeal, reversing the judgment below, that the plaintiff was entitled to the notes as against the defendant.

THIS was an appeal against a decision of the judge of the County Court of Westminster. The following facts appeared upon the case stated and signed by the judge:-In October, 1847, the plaintiff, who was town traveller to Messrs. Rae & Co., called at Messrs. Byfield & Hawkesworth's on business, as he was in the habit of doing, and as

115 Jur. 1079. Coram PATTESON and WIGHTMAN, JJ.

Bridges v. Hawkesworth.

he was leaving the shop he picked up a small parcel which was lying upon the floor. He immediately shewed it to the shopman, and opened it in his presence, when it was found to consist of a quantity of Bank of England notes, to the amount of 65l. The defendant, who was a partner in the firm of Byfield & Hawkesworth, was then called, and the plaintiff told him he had found the notes, and asked the defendant to keep them until the owner appeared to claim them. The defendant caused advertisements to be inserted in The Times newspaper, to the effect that bank notes had been found, and the owner might have them on giving a proper description and paying the expenses. No person having appeared to claim them, and three years having elapsed since they were found, the plaintiff applied to the defendant to have the notes returned to him, and offered to pay the expenses of the advertisements, and to give an indemnity. The defendant had refused to deliver them up to the plaintiff, and an action had been brought in the County Court of Westminster in consequence of that refusal. The case also found that the plaintiff, at the time he delivered over the notes to the defendant, did not intend to divest himself of any title that he might have to them. The judge had, upon these facts, decided that the defendant was entitled to the custody of the notes as against the plaintiff, and gave judgment in his favor accordingly. It was to review this decision that the present appeal had been brought.

Gray, Heath with him, for the appellant. The plaintiff, by finding the notes in question, acquired a title to them against the whole world, except the true owner. Amory v. Delamirie, 1 Str. 504; 1 Smith's L. C. 151. Having found them, he delivered them to the defendant for a special purpose only, and never intended to part with his property therein. The judge appears to have decided the case upon the ground that they were found in the house of another; but that makes no difference. If they had been found in the highway, they would have been the property of the finder, except as against the true owner; and yet the highway is the private property of some one, subject to the right of the public to pass over it. Suppose they had been found in the yard of the defendant, then they could be lawfully retained as against him; he might have had an action of trespass for entering the yard, but not any action founded on the possession of the goods. How did the defendant acquire any property therein? The mere fact of the notes having been dropped on the floor of his shop did not give it to him.

[PATTESON, J. If one enters a cab, and takes away a parcel left there by a former passenger, the property might be laid in the cabowner in an indictment for the felony.

WIGHTMAN, J. If the notes had been left on a chair, and the customer coming in had merely lifted them off, would they have become his property? They were not lost in the ordinary sense of the term, but were there in conspectu omnium. You say that any one taking possession of them, although they were, in one sense, in the possession of the shopkeeper, acquires a title to them, except as against the true owner.]