Robinson v. Hardcastle, 2 Term R. 241.

Brudenell v.
Elwes,

1 East, 442.

that the limitation to her daughters was good; but that the disposition of the inheritance to the child or children of her daughters was void; therefore there was no appointment of the inheritance, and the son took an estate tail therein, subject to the estates for life of his sisters.

47. A power of appointment was given to husband and wife, and the survivor of them, unto and among all the children of the marriage, for such estates as they should appoint; and in default of appointment, to the first and other sons of the marriage in tail male, remainder to the right heirs of the husband. The wife having survived, appointed the estate to a daughter for life, remainder to her eldest son for life, remainder to his first and other sons in tail male, remainder to her second son in the same manner, remainder to her daughter in fee. Both the sons died without issue. Lord Kenyon said, the wife had no power to appoint to the children of unborn children, but was confined to execute her power among the children. So far therefore as she appointed an estate for life to the daughter, with remainder for life to the eldest son, she did well; beyond that she exceeded her power, in appointing to the issue of the son; and therefore the excess was void. But it was equally clear that she did not intend that the subsequent limitation over to the daughter in fee should be accelerated; but it was made to depend upon the intermediate limitations to the issue of her brothers, and she was not to take till their issue male were extinct. Those intermediate limitations therefore being void, the ultimate remainder dependent upon them must also fall. If then the appointment were originally bad for the excess, the subsequent circumstance of the death of the brothers without

.

having had issue, could not make it good: the appointment must have been legal at the time of its creation. Therefore the estate must go as in default of appointment.

48. A condition annexed to an appointment, where the power does not warrant such condition, will be deemed void. So that if a father, having a power to appoint a sum of money among his children, qualifies his appointment to one of them with a condition, that he shall release a debt, or pay a sum of money, the appointment will be absolute, and the condition void.

49. The principle upon which this doctrine is founded, is, that where there is a complete execution of a power, and something er abundanti is added which is not warranted by the power; there, if the excess be distinguishable, so that the Court can draw a line, the execution will be good, and the excess only will be void. But if the boundary between the execution and the excess cannot be ascertained, the execution will then be void for the whole.

2 Ves. 644. Pawlett,

Pawlett v.

1 Wils. R.

224.

ment may

50. An appointment in execution of a power will An Appointbe good, though it limits a lesser estate than that give a lesser which the appointor was capable of creating.

Estate.

2 Vern. 80.

51. J. S. having four children, two sons and two Thwaytes v. daughters, settled his estate to the use of himself for Dye, life, remainder to his wife for life, and after their decease, to the use of such child and children, and in such shares and proportions, as he should appoint. J. S. by his will devised a rent charge out of those lands to his youngest son for life, remainder to the first and other sons of his body, and if he died without issue, so as the estate should come to his eldest son, then to pay 500% a piece to his daughters. The eldest son insisted that the power was not well pur

Roberts v.
Dixall,
2 Ab. Eq.
668.

sued, as the testator might have distributed the lands among his children, but had no power to devise a rent charge, or sums of money. But the Court held the appointment good.

52. Husband and wife levied a fine of the wife's estate; and the uses declared were, that the husband and wife, or the survivor, should have a power to appoint and divide the estate among their younger children, in such proportions as they or the survivor should think proper. The husband survived, and by his will gave his daughter, who was the only younger child, 3,000 l. charged upon his wife's estate, intending thereby to execute his power. One of the questions was, whether this was a good execution of his power. It was urged that this was a naked power, and ought to be executed in the very terms of it; and was compared to a condition, which must be strictly performed. But it was resolved by Lord Hardwicke that the power was in substance well executed. It was true the direct terms of the power were not pursued, but the intent and design of it were. It was admitted that the husband might have appointed part of the estate to be sold, and the money raised by such sale; and what was done was exactly the same thing. The Court might order a sale. It was the same to the heir or remainder-man which way the child was to be provided for, only that giving a portion of the estate itself, might be a means to tear it to pieces; whereas the estate would be kept entire; and it was better for the daughter, and perhaps thought so by the testator, that she should have a sum of money than a small estate; and though the will might not enure as a good execution of the power, in strictness; yet within the meaning and design of

it, was a good charge for the young lady's benéfit;

and the case of Thwaites v. Dye was a very strong ante, § 51. one to that purpose.

Rattle v.
Popham,
2 Stra. 992.

53. A tenant for life having a power to limit the lands to any woman whom he should marry, for her life, by way of jointure; made a lease for 99 years, determinable on the death of his wife, by way of a jointure for her. It was held by the Court of King's Bench, on a special verdict, that this was not a good execution of the power at law; for the estates were totally different, one being a freehold, and the other a chattel. But Lord Mansfield said the widow 2 Burr, 1147. brought her bill in Chancery, and Lord Talbot, arguing from the same premises, the power and the lease, without any other circumstance, held the lease to be warranted by the power: he said it was not a defective but a blundering execution; and he decreed the defendant to pay all the costs, both at law and in equity.

54. A power of charging an estate with portions Or direct a Sale, and ap for younger children; or of appointing an estate point the among them; has been held to be well executed by Money. a will, directing a sale, and appointing the money.

55. In a marriage settlement there was a covenant Long v. Long, by the intended husband, to purchase and convey an 5 Ves. Jun. estate in strict settlement, with a power to the hus- 445. band, tenant for life, in case there should be any younger child or children, to charge such sum or sums of money for such younger children, as he should appoint. The husband declared by his will that a particular farm should be sold after his wife's death, and the money disposed of among his younger children. The Court said, that this appointment being in substance exactly what the husband had a right to do, was good.

Kenworthy v. Bate,

6 Ves. Jun. 793.

Must not be illusory.

Menzey v.
Walker,
cases temp.
Talbot, 72.

Pocklington v. Bayne,

1 Bro. R. 450.

56. In a settlement there was a power given to the husband, of appointing the lands to the children. The husband by his will, reciting the settlement, and the power therein contained, devised the estates so settled to trustees, to sell and dispose thereof, and to divide the produce among his children. The Master of the Rolls (Sir W. Grant) held this a good execution of the power.

57. Where a person has a power of appointing an estate, or a sum of money, unto and among his children, or any other class of persons, in such shares and proportions as he shall think proper: the appointor must give the whole among the children, or class; and each of them must have such a fair and reasonable share as is not illusory.

58. The trust of a term of 300 years, was declared to be for raising such sums of money, for the portions of the children of a marriage, (except an eldest or only son,) in such manner, and at such time, and under such limitations, as the husband should by deed or will appoint; so as such sum or sums did not, in the whole, exceed 2,000 %. There were three younger children; and the husband by his will, reciting that his two daughters were amply provided for by their grandmother, appointed the whole of the money to his second son. It was decreed, that the execution of the power was void.

59. Lands were limited to S. P. for life, remainder to his wife for life, remainder to the use of all and every the child and children of the said S. P., in such parts, shares, and proportions, and for such estate and estates, not exceeding an estate or estates tail, with or without power of revocation, and by, with, and under such powers, provisoes, remainders, or limitations over, to some or one of the said children;