Doe v. Martin, 4 Term Rep. 39. $3. ante, § 49. 51. By marriage settlement, lands were limited to the use of the intended wife and her heirs, till the marriage; afterwards to her separate use for her life, remainder to her husband for life, remainder to all the children of the marriage, or such of them, for such estates, and in such shares, as the husband and wife, or the survivor, should by deed appoint; and for want of such appointment, then to the use of all and every the child or children equally. Upon a question, whether the remainders to the children were vested or contingent, it was contended that the power of appointment prevented their vesting, by absorbing the whole fee. Lord Kenyon after observing, that the judgement must depend on the authorities cited, of which the Tit. 16. c. 8. three leading ones were Leonard Lovie's case, Walpole v. Lord Conway, Barnad. Rep. in Chan. 153. and Cunningham v. Moody, and noticing the opinions in the two last, said he was happy to find that in the last of these cases, where Lord Hardwicke had an opportunity of re-considering this question more fully, and at a time of life when his judgement was more mature, he determined differently from the opinion held in the two former. He could not find any substantial distinction between that case, and the principal one. That the limitations to the children were first subject to a power of appointment to the children, &c. and whether the limitations preceded or followed the power of appointment, made no difference. That the opinion of Lord Hardwicke, in the latter case, was peculiarly deserving of attention; because, when it was discussed, the former one, of Walpole v. Conway, where he had intimated a different opinion, was pressed upon him; and because he decided the last case at a time when he had the assistance of some of the most eminent lawyers, that ever attended the bar of that Court. Lord Kenyon therefore thought, that on the authority of that case, the remainders to the Doe v. Dorchildren were vested, subject to be divested by the vell, 5 Term Rep. 518. execution of the power, and judgement was given accordingly. Origin and Restriction as to the clear yearly Value. SOON SECTION 1. OON after the statute of uses, the practice of limiting estates in strict settlement became frequent; but as estates for life are not subject to dower, a power was usually given to tenants for life, of appointing an estate to any woman whom they should marry, for their lives, by way of jointure, which is now universally practised. 2. As a rent-charge is a much more convenient species of property than an estate in land, it is now the usual practice to give tenants for life, a power of appointing a rent-charge, not exceeding a certain sum, by way of jointure: and where the power is to appoint all or any part of the lands, the usual way is to appoint certain lands to the wife, with a proviso, that in case the person in remainder shall pay to the wife a certain yearly sum, out of the rents, as a jointure, then that he may retain the possession of the estate. 4 3. In powers of this kind, the common phrase is, that it shall be lawful for the tenant for life to appoint any part of the lands, comprised in the settlement, to his wife, as a jointure, not exceeding the clear yearly value of a certain sum. And where an appointment of a jointure is made in this manner, clear of all taxes, and other outgoings, this refers to such outgoings and taxes as are in being at the time when the appointment is executed. Marlbo 4. The Marquis of Blandford, having a power to Blandford v. appoint a jointure, not exceeding 3,000 7. a year, rough, by articles previous to his marriage, covenanted to 2 Atk. 512. settle a jointure of 3,0001. a year on his intended wife, over and above all reprises. A settlement was afterwards executed, by a deed of appointment of certain lands, in pursuance of the power; in which there was a covenant, that the lands should produce 3,000l. per annum, clear of all reprises. Lady Blandford having survived the Marquis, brought her bill in Chancery, to have the lands appointed to her for jointure, made up a clear 3,000l. a year. Lord Hardwicke said-There were two questions in this case. First, what was the true construction of the power. And secondly, what was the construction of the articles. The words of the power were, to settle upon any woman a jointure not exceeding 3,000 a year, without any deduction or abatement, for any taxes, charges, or impositions, imposed or to be imposed, parliamentary or otherwise. He thought both sides were mistaken in the construction of the power. For the plaintiff's counsel carry it too far in extending it to a clear yearly rentcharge; and have insisted upon deducting for every little sum laid out in manuring, or any way relating to the land. And, on the other hand, the defendant's counsel have narrowed it too much, by insisting that the words taxes and impositions ought to receive a limited and restrained sense; and mean such taxes as are fixed, and certain in their nature, which the land-tax is not, being a fluctuating one. He thought the land-tax clearly within the power; for it would be very strange when there were the words, imposed or to be imposed, that the principal and most considerable public tax could be intended to be excluded. The best rule was to construe the power as referring to such taxes as were in being at the time the articles were executed. The jointure was not to exceed, in the whole, the annual value of 3,000l.; and in his apprehension the value of the land was to be estimated, as it stood at the time of the execution of the power: if by any accident, after the execution of the power, there should have been an excess, it would be for the benefit of the jointress. By parity of reason, if there should be any deficiency, by inundation or casualties, the jointress must acquiesce under it. To construe it otherwise, would make these powers executory. Upon the first question, therefore, the measure of the charges the jointured estate was to be freed from, must be taken from the valuation at the time of the execution of the power, and of such charges as were then in being. As to the second question, respecting the construction of the articles, there was a great inacuracy in not pursuing the power, nay, even the articles and the settlement had not so much as the same words, but differed in many places, and yet they ought both to be construed, so as to make them consistent; and by this means he should have some reason for what he said, and some foundation to stand upon. On the part of the defendant, an advantage had been attempted to be taken from the expression, that the jointure should be clear of reprises. Now the word reprises was of a very uncertain signification, and ought to be construed secundum subjectam materiam. The articles began with a recital of the power, and |