in cases of a defective execution of a power where it is rendered impossible, by circumstances over which the party has no control, for him to execute it; as if he is sent abroad by the Government, and the prescribed witnesses cannot be obtained; or if the remainder man refuses to the party a sight of the deeds creating the power, so that the party cannot ascertain the proper form of executing it.1

§ 136. Same. In regard to the defective execution of powers resulting either from accident or mistake or both, and also in regard to agreements to execute powers (which may generally be deemed a species of defective execution),2 Courts of Equity do not in all cases interfere and grant relief, but grant it only in favor of persons in a moral sense entitled to the same, and viewed with peculiar favor, and where there are no opposing equities on the other side. Without undertaking to enumerate all the qualifications of doctrine belonging to this intricate subject, it may be stated that Courts of Equity, in cases of defective execution of powers, will (unless there be some countervailing equity) interpose, and grant relief in favor of purchasers, creditors, a wife, a child, and a charity; but not in favor of the donee of the power, or a husband, or grandchildren, or remote relations, or strangers generally.4

§ 137. Distinction between Powers Created by Private Parties and Those Created by Statute. But in cases of defective execution of powers we are carefully to distinguish between powers which are created by private parties and those which are specially created by statute; as for instance powers of tenants in tail to make leases. The latter are construed with more strictness; and whatever formalities are required by the statute must be punctually complied with, otherwise the defect cannot be helped, or at least may not perhaps be helped, in equity; for Courts of Equity cannot dispense with the regulations prescribed by a statute, at least where they constitute the apparent policy and object of the statute.5

11 Fonbl. Eq. B. 1, ch. 5, § 2, note (h); Earl of Bath & Montague's Case, 3 Ch. Cas. 68; Gilb. Lex Prætoria, pp. 305, 306.

22 Chance on Powers, ch. 23, § 1, arts. 2824, 2825, 2897 to 2915.

3 Ibid. ch. 23, § 1, arts. 2817 to 2932.

42 Chance on Powers, ch. 23, § 1, arts. 2830 to 2858; Id. 2859 to 2863; Id. 2864 to 2873; 1 Fonbl. Eq. B. 1, ch. 1, § 7, and note (v); Id. B. 1, ch. 4, § 25, notes (h), (i); Id. B. 1, ch. 5, § 2, and note (b).

5 1 Fonbl. Eq. B. 1, ch. 1, § 7, and note (t); Id. B. 1, ch. 4, § 25, note (e); Earl of Darlington v. Pultney, Cowp. R. 267. But see 2 Chance on Powers, ch. 23, § 2, arts. 2985 to 2997; post, §§ 241, 251, and note 2; Bright v. Boyd, 1 Story, R. 478.

§ 138. Same. As to the defects which may be remedied, they may generally be said to be any which are not of the very essence or substance of the power. Thus a defect by executing the power by will when it is required to be by a deed or other instrument, inter vivos, will be aided. So the want of a seal,1 or of witnesses, or of a signature, and defects in the limitations of the property, estate, or interest, will be aided. And perhaps the same rule will apply to defective executions of powers by femes covert. But equity will not aid defects which are of the very essence or substance of the power; as for instance if the power be executed without the consent of parties who are required to consent to it. So if it be required to be executed by will, and it is executed by an irrevocable and absolute deed; for this is apparently contrary to the settler's intention, a will being always revocable during the life of the testator, whereas a deed would not be revocable unless expressly so stated in it.2

139. Failure to Execute Powers and Trusts by Accident. But a class of cases more common in their occurrence as well as more extensive in their operation will be found where trusts, or powers in the nature of trusts, are required to be executed by the trustee in favor of particular persons, and they fail of being so executed, by casualty or accident. In all such cases equity will interpose and grant suitable relief. Thus for instance if a testator should by his will devise certain estates to A, with directions that A should at his death distribute the same among his children and relations as he should choose, and A should die without making such distribution, a Court of Equity would interfere and make a suitable distribution; because it is not given to the devisee as a mere power, but as a trust and duty which he ought to fulfil; and his omission so to do by accident or design ought not to disappoint the objects of the bounty. It would be very different if the case were of a mere naked power, and not a power coupled with a trust.3

1 See Bernards v. Stebbins, 109 U. S. 341, 27 L. Ed. 956, 3 S. Ct. Rep. 252; post, note to § 209.

22 Chance on Powers, ch. 23, § 1, arts. 2894 to 2896; 2930; 2980 to 2984. I have contented myself with these general statements on this confessedly involved topic, as a full investigation of all the doctrines concerning it more properly belongs to a treatise on Powers. The learned reader will find the whole subject fully examined, and all the leading authorities brought together, in 2 Chance on Powers, ch. 23, §§ 1, 2, 3, arts. 2818 to 3024, and Sugden on Powers, ch. 6, pp. 344 to 393 (3d edition), and Powell on Powers, pp. 54, 155, 243, 280. See Post, §§ 247, 248; Levy v. Griffis, 65 N. C. 236.

3 Harding v. Glynn, 1 Atk. 469, and note by Saunders; Brown v. Higgs, 4 Ves. 709; 5 Ves. 495; 8 Ves. 561; 2 Chance on Powers, ch. 23, § 1.

§ 140. Cancellation of Prior Valid Will Believing Subsequent Defective Will Valid. Another class of cases is where a testator cancels a former will upon the presumption that a later will made by him is duly executed, when it is not. In such a case it has been decided that the former will shall be set up against the heir in a Court of Equity, and the devisee be relieved there upon the ground of accident.1 But this class seems more properly to belong to the head of mistake, or of a conditional presumptive revocation, where the condition has failed.2.

$141. Relief Granted in Confusion of Boundaries. Courts of Equity will also interfere and grant relief (as we shall presently more fully see) where there has been by accident a confusion of the boundaries between two estates. So they will also grant relief where by reason of such confusion of boundaries by accident the remedy by distress for a rent charged thereon is gone.* 4

§ 142. Material Party to Instrument Who Failed to Indorse through Accident May Be Compelled to Execute It. - So where by accident or mistake, upon a transfer of a bill of exchange or a promissory note, there has been an omission by the party to indorse it according to the intention of the transfer in such a case, the party, or in case of his death his executor or administrator, may be compelled in equity to make the indorsement, and if the party has since become bankrupt or his estate is insolvent, his assignees will be compelled to make it; for the transaction amounts to an equitable assignment, and a Court of Equity will clothe it with a legal effect and title.5

§ 143. Same. These may suffice as illustrations of the general doctrine of relief in equity in cases of accident. They all proceed upon the same common foundation that there is no adequate or complete remedy at law under all the circumstances; that the party has rights which ought to be protected and enforced; or that he will sustain some injury, loss, or detriment, which it would be inequitable to throw upon him.

1 Onions v. Tyrer, 1 P. Will. 343, 345; s. c. 2 Vern. 751; Prec. Ch. 459. 21 P. Will. 345, Cox's note; Burtenshaw v. Gilbert, Cowp. R. 49. 3 Beatty v. Dixon, 56 Cal. 619; Wetherbee v. Dunn, 36 Cal. 255. Mitf. Eq. Pl. by Jeremy, 117; post, §§ 766, 835 to 842, 615 to 622; Duke of Leeds v. Powell, 1 Ves. 171; post, § 842.

5 Watkins v. Maule, 2 Jac. & Walk. 242; Chitty on Bills, ch. 6, p. 263 (8th edit. 1833); Bayley on Bills, ch. 5, § 2, pp. 136, 137 (5th edit. 1830); post, 1010; Benson v. Abbott, 95 Ga. 69, 22 S. E. 127; Troeder v. Hyams, 153 Mass. 536, 27 N. E. 775.

$144. Relief from Breach of Positive Contract Will Not Be Granted on Account of Mere Accident. And this leads us naturally to the consideration of those cases of accident in which no relief will be granted by Courts of Equity. In the first place, in matters of positive contract and obligation created by the party (for it is different in obligations or duties created by law),1 it is no ground for the interference of equity that the party has been prevented from fulfilling them by accident, or that he has been in no default, or that he has been prevented by accident from deriving the full benefit of the contract on his own side.2 Thus if a lessee on a demise covenants to keep the demised estate in repair, he will be bound in equity as well as in law to do so, notwithstanding any inevitable accident or necessity by which the premises are destroyed or injured; as if they are burnt by lightning or destroyed by public enemies, or by any other accident, or by overwhelming force. The reason is, that he might have provided for such contingencies by his contract if he had so chosen; and the law will presume an intentional general liability where he has made no exception.3

§ 145. Relief Will Not Be Granted Where Express Covenant Has Been Breached by Accident. And the same rule applies in like cases where there is an express covenant (without any proper exceptions) to pay rent during the term. It must be paid, notwithstanding the premises are accidentally burnt down during the term. And this is equally true as to the rent, although the tenant has covenanted to repair except in cases of casualties by fire, and the premises are burnt down by such casualty; for, Expressio

1 Paradine v. Jane, Aleyn, R. 27. See also Story on Bailments, §§ 25. 35, 36.

21 Fonbl. Eq. B. 1, ch. 5, § 8, note (g). See Com. Dig. Chan. 3 F. 5, Barrisford v. Done, 1 Vern. 98.

3 Id. Dyer, R. 33 (a); Chesterfield v. Bolton, Com. R. 627; Bullock v, Dommitt, 6 T. R. 650; Brecknock, &c. Canal Company v. Pritchard. 6 T. R. 750; Paradine v. Jane, Aleyn, R. 27; Monk v. Cooper, 2 Str. R. 763; 1 Fonbl. Eq. B. 1, ch. 5, § 8, note (g), p. 374, &c.; Harrison v. Lord North, 1 Ch. Cas. 83. Clifton v. Montague, 40 W. Va. 207, 21 S. E. 858, 52 Am. St. Rep. 872, 33 L. R. A. 449; Arbenz v. Exley, 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 957; Rubens v. Hill, 213 Ill. 523, 72 N. E. 1127; Gulliver v. Fowler, 64 Conn. 556, 30 Atl. 852; Crawford v. Redding, 8 Misc. Rep. 306, 28 N. Y. Supp. 733; Huber v. Baum, 152 Pa. St. 626, 26 Atl. 101; Gallup v. Albany etc. R. Co., 65 N. Y. 1.

And where the defendant gave his note for a year's rent in advance, and at the end of thirty days the building was so badly burned, without the fault of the plaintiff, landlord, that it was of no further service to defendant, this was no defence to the payment of the note. Stafford v. Staunton, 88 Ga. 298, 14 S. E. 479.

unius est exclusio alterius." 1 In all cases of this sort of accidental loss by fire the rule prevails, "Res perit domino"; and therefore the tenant and landlord suffer according to their proportions of interest in the property burnt; the tenant during the term, and the landlord for the residue. [Where a contractor agrees with the owner of a lot to furnish all of the materials and build a house, and before completion the house burns, without fault of the owner, the contractor is liable to refund any money paid him on the contract and damage for its non-performance; but if the contract is not an entire one, and if the house is destroyed by fire or other inevitable accident before completion, the parties are relieved from further performance and the contractor may recover for what he has done, above the amount paid him.2]

3

§ 146. Same. And the like doctrine applies to other cases of contract, where the parties stand equally innocent. Thus for instance if there is a contract for a sale at a price to be fixed by an award during the life of the parties, and one of them dies before the award is made, the contract fails; and equity will not enforce it upon the ground of accident, for the time of making the award is expressly fixed in the contract according to the pleasure of the parties, and there is no equity to substitute a different period.4

§ 147. Same. So if A should covenant with B to convey an estate for two lives in a church lease to B by a certain day, and one of the lives should afterwards drop before the day appointed for the conveyance, B would be compelled to stand by his contract and to accept the conveyance; for neither party is in any fault, and B by the contract took upon himself the risk, by not providing for the accident.5 So So if an estate should be sold by A to B for a certain sum of money and an annuity, and the agreement should be fair, equity will not grant relief, although the party

1 Monk v. Cooper, 2 Str. 763; s. c. 2 Lord Raymond, 1477; Balfour v. Weston, 1 T. R. 310; Fowler v. Bott, 6 Mass. R. 63; Doe v. Sandham, 1 T. R. 705, 710; Hallet v. Wylie, 3 John. R. 44; Hare v. Groves, 3 Anst. 687; Holtzapffell v. Baker, 18 Ves. 115; Pym. v. Blackburn, 3 Ves. 34, 38; 1 Fonbl. Equity, B.1, ch. 5, § 8, note (g); Cooper, Eq. Pl. p. 131. See Wood v. Hubbell, 5 Barb. 601; s. c. 10 N. Y. 479. In Brewer v. Herbert, 30 Md. 301, a contract for the sale of a house and land was enforced though the house had burnt down. See also McKecknie v. Sterling, 48 Barb. 330, 335. But see Smith v. McCluskey, 45 Barb. 610, 613.

2 Keel v. Construction Co., 143 N. C. 429, 55 S. E. 826.

3 Com. Dig. Chancery, 3 F. 5.

4 Blundell v. Brettargh, 17 Ves. 232, 240.

White v. Nutt, 1 P. Will. 61.