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depends in like manner upon the doing of the act prescribed in the power. As Mr. Gray expresses it, “the vesting of an interest appointed under a power is subject to the condition precedent of the power being exercised; if the power can be exercised beyond the required limits, the condition precedent may be fulfilled beyond the limits, and therefore the interest appointed under the power will be too remote.” Afterwards, in speaking of the estates that may be appointed under a power exercisable by deed, he says that whether the power is given to an unborn or to a living person, "such a power is not really a power at all, but is a direct limitation in fee.” 26 This cannot mean, however, that the power gives an estate in fee unless it is exercised, and if the vesting of the estate is dependent on the exercise of the power, it is difficult to understand how such a power can be given to an unborn person unless he is in some way restricted to the legal period in exercising it.

In Davidson's Conveyancing 27 it is said, in a note, that "the writer conceives that until Wollaston v. King 28 was decided, the appointment there in question would have been considered by the profession to be within the authority of the prior cases, and to be protected by the principle on which those cases were founded, namely, that the general power of appointment (whether exercisable by deed or will, or by will only) is in substance part of the interest limited to the object of the special power.” It was right to consider the general power as part of the interest limited to the object of the special power, where it was given to a living person, as in Phipson v. Turner,29 and must therefore be exercised, if at all, within the legal limit. But it must have been overlooked that nothing would come of the interest unless the power were exercised, and that, if it were given to an unborn person, nothing could vest in any one under an exercise of the power until a time that might be beyond the legal limit. When it was decided in Wollaston v. King and Morgan v. Gronow 30 that a general power of appointment by will was void in such circumstances for that reason, it ought to have been recognized that a general power of appoint


26 GRAY, PERPETUITIES, 3 ed., appx. $8 959, 962; cf. $ 950.

DAVIDSON, CONVEYANCING, 3 ed., 157. 28 L. R. 8 Eq. 165, 169-170 (1869).

9 Sim. 227, 245, 250-251 (1838). 30 L. R. 16 Eq. 1, 9-10 (1873).



ment by deed or will would also be void in the like circumstances for the same reason.

J. L. Thorndike. BOSTON, Mass.

31 In a recent Canadian case, Re Phillips, 28 Ont. L. Rep. 94 (1913), a strange confusion was made in the application of the rule laid down in Wollaston v. King and Morgan v. Gronow. The testator, who died in 1910, gave his residuary estate in trust for his wife during her life or until her second marriage, and, after her death or marriage, in trust for his children then alive in equal shares, the issue of any then deceased child standing in its parent's place, with directions to pay to each of them the income of his or her share, and on the death of each to pay over his or her share as such child or grandchild should by will appoint, and in default of appointment to the persons entitled to his or her personal estate by statute in case of intestacy. He left surviving him a wife and seven children, all of whom seem to have been still alive. It is plain that, if a grandchild born after the testator's death should become entitled to a share, the limitation of his share to objects to be ascertained by his will or otherwise at his death would be too remote, and accordingly the power would be void as to such grandchild, and the judge so held, quoting (p. 97) the passage in Halsbury's Laws of England, vol. 22, p. 355. But he went on to say that the opposite view was taken in Farwell on Powers, 2 ed., 287, although in fact that book expresses exactly the same view (at p. 292) as the quotation from Lord Halsbury's book, and the passage at p. 287 relates to an entirely different subject, viz., the time from which the legal period runs in the case of an appointment under a general power to appoint by will, where the power is valid. He also thought he struck “a discordant note” in Rous v. Jackson, 29 Ch. D. 521 (1885) and In re Flower, 55 L. J. Ch. 200 (1885), but those cases also relate only to this latter question, and Lord Halsbury's book at p. 356 states the law exactly in accordance with them and with Farwell on Powers. It is clear, however, that, although the power of appointment would be invalid in the case of an afterborn grandchild, this did not affect its validity as to the shares of any of the children or of grandchildren living at the testator's death, for all the shares will be ascertained at the wife's death, or marriage, and the power applies to each of them separately, according to all the cases from Griffith v. Pownall, 13 Sim. 393 (1843), to In re Russell, (1895) 2 Ch. 698. The law is stated in Lord Halsbury's book at p. 346, and is the same here (Hills v. Simonds, 125 Mass. 536 (1878); Dorr v. Lovering, 147 Mass. 530, 18 N. E. 412 (1888). But the judge somehow got the impression from In re Bence, (1891) 3 Ch. 242, that the clause containing the power could not be split up, and accordingly held that the power and the alternative limitation were entirely void, and that the shares of the children and grandchildren must go to them absolutely under the original gift.




“THE Effect of War on the Running of the Statute of Limita

tions” might be deemed a proper topic of international law or of municipal law. It deals with the effect of war, an international relation, upon the operation of a municipal statute. Like many matters treated by writers on international law it combines international and municipal law, and the rules controlling are constantly spoken of as rules of each. The decisions, as will be seen, involve questions of tort, contract, and property right.

The English courts have ruled, as Sir Robert Phillimore states, “that the Statute of Limitations (21 Jac. I., C. 16, § 7) is no bar to a party, whether he be a subject of the realm or a foreigner, who was not in England at the time the cause of action occurred, and who continues resident abroad.” This rule has perhaps tended to prevent the question of the effect of foreign war on the running of the Statute of Limitations being litigated in the courts of England, but not as concerned her civil wars.

Thus in Hall v. Wybourn the court says (of the Statute of Limitations):

“In one Bynton's case, it was held by Bridgman, C. J., that though the courts of justice were shut up so as no original could be filed, yet this statute would bar the action because the statute is general, and must work upon all cases which are not exempted by the exception."

And in Prideaux v. Webber 3 the defendant pleaded the Statute of Limitations to an action of trespass for assault and battery and imprisonment. The plaintiff replying “ that certain rebels had usurped the government and that none of the King's Courts were open,” it was adjudged for the defendant. “And the reason they gave that the Statute of Limitations was a good bar, (be it so, as it was pleaded, that the Courts were not open) was, because there

2 Salk. 420 (1689).


31 (1661).



is not any exception in the act of such a case.” This case is one sounding in tort.

In Lee v. Rogers, the court says:

“And in Hillary term the 15th of Car. II, in the Common Pleas, between Sir George Bremion and Sir John Evelyn, on a promise made in 1646, the defendant pleaded the Statute of Limitations; to which the plaintiff replied, that the defendant was a member of the House of Commons till 1648, and that then the government was usurped, and no courts erect; and that he brought his action as soon as the courts were erected by the King's restoration. And on demurrer it was adjudged, (as I heard) . . . Thirdly, That privilege of Parliament, nor the courts not being open, are not any excuse against the Statute of Limitations not being excepted out of the Statute."

Here the rule is decided as to an action on contract.

The stop to the running of the statute in these cases, which was claimed but denied, is due to the fact that the courts were closed, not to the fact that parties were divided by the line of war.

The whole subject was reviewed and the doctrine that the running of the statute was not hindered by a state of war was affirmed in Beckford v. Wade. Sir William Grant, M. R., there discussing the subject, says (p. 93):

“A very strong case is put, that of the Courts of Justice being shut up in time of war, so that no original could be sued out; and yet it has been given as the opinion of learned Judges, that even in that case the Statute would continue to run. In the case of Hall v. Wybourn (2 Salk. 420) and Aubry v. Fortesque (10 Mod. 206) it is stated to have been hełd by Bridgman, Chief Justice, that though the Courts of Justice were shut up, so as no original could be filed, yet this statute would bar the action; because the statute is general and must work upon all cases, which are not exempt by the exception; and in roth Modern this resolution is said to have been often approved by Lord Chief Justice Holt."6


4 1 Levinz 111 (1663).

17 Ves. Jr. 87 (1810). 6 In the modern case of Musurus Bey v. Gadban, (1894! 2 Q. B. 352, the Court of Appeal held that the Statute of Limitations did not run in favor of His Excellency Musurus Pacha, Turkish Ambassador, while he was accredited as such to the sovereign of Great Britain, or during such reasonable time thereafter as he was detained by closing his business and preparing to leave England. In this case the narrower rule of the older cases, that no exception can be introduced into the statute except as therein stated, however reasonable, seems not to have controlled.

This passage is by way of argument and dictum.

In the United States the matter seems to have been much more extensively considered and adjudicated than in Great Britain, both as to the effect of the closing of the courts during war and the effect of the separation of the parties by the line of war.

To begin with the earliest case observed, in v. Lewis,' the United States Circuit Court in 1805 decided that the Statute of Limitations was suspended during the continuance of the war as to alien enemies disqualified to sue in our courts. This rule is applied to a British adherent. No reference is made to our treaty with Great Britain, which might well have governed the case. This seems the beginning of a rule differing from that of the English courts.

Shortly after the war of 1812 between Great Britain and the United States the question came before the Constitutional Court of South Carolina, in Wall v. Robson. This was a case of summary process on a bill drawn by Nesbit in favor of Robson (the plaintiff), a British subject, on Wall, an American citizen, residing in Charleston and accepted by him. The bill was dated March 2, 1812, payable at thirty days on sight, accepted on the 25th of April following, and protested for non-payment May 28, 1812. On June 18, 1812, war was declared by the United States against Great Britain and continued two years, six months, and six days. If this period were excluded, the Statute of Limitations had not run. The trial judge held it should be so excluded. This was affirmed by the Constitutional Court of South Carolina in an extended opinion by Mr. Justice Bay. He shows that war does not deprive an individual in an enemy's country of his rights, but merely suspends them. That there is no default on the part of creditors who cannot enforce a claim in case of war, and that law will not penalize such enforced delay. It will be observed that this was an action on a contract. This case seems to announce fully the rule that has been ever since generally adhered to in the United States. It turned, however, the separation of the parties by the line of war and the inability of an alien enemy to sue, not on the closing of the courts.

Many cases involving the principle arose, as was to be expected, at the close of the war with the Southern Confederacy. The people of the United States had been divided by a great civil war lasting



i Brunner, Col. Cas. 27, 15 Fed. Cas., No. 8,315 (1805). 8 2 N. & McC. (S. C.) 498 (1820).

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