Frame's Petition

2 Del. Cas. 517, 1819 Del. LEXIS 24

• Court: Orphan's Court of Delaware
• Decided: July 23, 1819
• Status: Published

Opinion

The Chancellor.

This land has not been disposed of by the testator after the death of his widow. No interest passed by his will. And this is not a power merely to apportion that which a legally executed instrument had given or disposed of, but it is a power to grant or dispose of what has not been granted or devised; and consequently Paynter Frame was the person who had the power to do that which the testator himself might have done. Now as the manner has not been prescribed in which this power should have been executed, it ought to have been performed in such a way as the law requires for the disposition of that which is the subject matter upon which the power given was to operate. Land cannot pass by a paroi contract or declaration. It must be in writing; and therefore as Paynter Frame never executed any writing in execution of this power, the verbal declarations which he made are not sufficient to vest in Elizabeth this land. Besides, the declarations did not seem to be intended by P. Frame as an execution of the power, but merely as expressions of the intention how he would futurely exercise the discretion committed to him. The law, as the testator said, must take its course.

Vide. Pow. Powers 83, 84, 1 P.Wms. 740, Longford v. Eyre, 2 P.Wms. 258, Wagstaff v. Wagstaff.