as the said S. P. should by any deed or writing, or by will, direct or appoint: and for default of such appointment, then to all and every the children, to be divided share and share alike. S. P. by will, reciting the power, did in pursuance thereof limit one acre of the premises to his eldest son, and his daughter for their lives, and the life of the survivor of them, with remainder to such person or persons as should be entitled to the residue of the said premises; and then limited the residue to his second son Henry, in strict settlement. Lord Thurlow was clearly of opinion, that the execution of the power was totally illusory, and contrary to its nature; that therefore the estate must go among all the children, agreeable to the direction, in default of execution of the power. 60. If however, it appears, from the words of the power, to have been the intention of the parties, that the appointor should be enabled to appoint the whole Thomas v. of the property to any one of the persons intended Thomas, to be benefited, an appointment to one will be good. 2 Vern. 513. Austin, 61. The trust of a term was declared, that if Austin v. Robert Austin should die, leaving issue by his wife, 2 Ab. Eq. a son and other children, then to raise a sum not 667. exceeding 1,500l. for the sole benefit and advantage of such child or children, (other than an eldest), in such proportions, manner, and form, in all respects, as the said R. A. should for such purpose, by his last will in writing, direct, limit, or appoint; and in default of such direction, then to the sole benefit of such child, if but one; and if more (other than an eldest), to them all equally. R. A., by his will, directed the money to be raised, and appointed 4507. to one of the younger sons, and 1,0507. to a daugh Swift v. ter; but gave nothing to another younger son; who brought his bill to be let in to a share of the 1,500 l. It appearing, however, that he was otherwise provided for, and because there was a discretionary power in the father, which he had exercised in a reasonable manner; the bill, after long consideration, was dismissed. 62. Lands were limited in a marriage settlement, to the use of John Gregson for life, remainder to and for the use and behoof of such child and children of the said J. G., and for such estate and estates, intents and purposes, as the said J. G. should appoint; and for want of such appointment, to the use of all and every the child and children of the said J.G. equally. J. G. by deed, reciting the settlement, and that he had two children, a son and a daughter, appointed that the premises should after his decease go to the use of the son, and the heirs of his body, remainder to the daughter and her heirs. The daughter brought an ejectment for the recovery of an undivided moiety of the estate, upon the ground that the appointment was illusory and void. Mr. Justice Buller said, the words of the power were "to and for the use and behoof of such child and children, and for such estate and estates, &c." The argument for the plaintiff was, first, that where there is a power to give an estate to and amongst all and every the children, each must have a beneficial part; and secondly, that these words were tantamount to those. His objection was to the minor proposition. These words were not like those assumed: there were no such words in this power as, to and amongst, but just the reverse, for it was a power to appoint to the use and behoof of such child and children; therefore, instead of including all, it says, that the appointor may appoint to one only. The plaintiff's counsel had admitted that under a power of appointing to such of the children, &c. an appointment to one only would be good; but the present words were stronger: an appointment to one, under a power of appointing to such child or children, was good, because it includes one. He cited the case of Spring v. Biles, Mich. 24 Geo. III. B. R., where a power was given to dispose of lands "to and amongst such of my relations as shall be living at the time of my decease; in such parts, shares, and proportions, as my wife shall think proper." And it was determined, that an appointment of the whole estate to one of the relations, was good. He observed that that case, with the difference only of relations, instead of children, was stronger than the present. There the power was " To and amongst such of my relations, &c. in such parts, shares, and proportions, &c. ;" which imported that a division was intended: but in the present case, the words, "parts, shares, and proportions," were not used, and there was no evidence of an intention that it should be divided into shares. In that case, the Court said, they had not a particle of doubt but that the word such meant one or more. Here, therefore, it must have the same construction. It must mean that the appointor Kenworthy should appoint to one or more. Judgement was given v. Bate, for the defendant. 6 Ves. Jun. 793. 2-336. 63. It has been determined in some modern cases, 1 Ves. Jun. respecting personal property, that an illusory ap- 299. pointment may be accounted for by circumstances. And therefore, where a person, having a power of appointment among his children, and having advanced one of his daughters in marriage, recited that 4 Ves. Jun. 785. 5-859. Bax v. bread, Whit 1 Ves. 15. Butcher v. A Power can as a reason for giving her a small share; the appointment was held not to be illusory. In a subsequent case, it was said, that in equity, an appointment of a very small share was not illusory, if justified by circumstances; as where that object was otherwise provided for. And Lord Eldon has observed, that the question whether an appointment is, or is not illusory, must be determined upon the circumstances of each case, according to a sound discretion; the power, however large the terms, being in some decree coupled with a trust: but an equal distribution is not required, nor any reason for the inequality, unless a share is clearly unsubstantial. 64. A power of revocation and appointment cannot not be dele- be delegated to another; whether the power relates to the land, or is only collateral to it: for it is a maxim of law, that delegatus non potest delegare. gated to Ingram v. 65. A husband, by his marriage articles and settlement, had a power of disposing by deed or will of a reversionary interest, to the issue of the marriage, in such proportions as he should think fit; the husband by his will, reciting the power, delegated it to his wife, that she might dispose of the estate among the children in such proportions as she should think proper. Lord Hardwicke said, this must be considered as a power of attorney, which could only be executed by the husband, to whom it was confined; and was not in its nature transmissible to a third person. 66. This doctrine is however confined to that part of the execution of a power in which the confidence and discretion is exercised; and does not extend to mere formal acts. In the case of the Attorney 1 General v. Scott, 1 Ves. 413, where a power was are special 67. If a power be expressly given, to be executed Unless there by the donee or his assigns; an execution of it by an Words. assignee will in such case be good; and a devisee will Englefield's be considered as an assignee, within the words of the power. Case, infra, c. 18. Whitfield, 1 Vent. 338. 1 Freem. 110. 68. A fine was levied of certain lands, to the use How v. of T. for life, remainder to I. his son, and the heirs male of his body, remainder to I. his executors and 2 Show. 57. assigns for 80 years, and that he, and his assigns of 476. the said term, should have full power and authority to W. Jones, demise, &c. for 21 years or three lives, rendering the ancient rent. I. the son devised this term, and died without issue male: the devisee entered, made his executors, and died. The executors assigned over the term, with power to make leases: and the question was, whether the power annexed to the term for 80 years, was transferrable, with the term, to assignees in law. The court was of opinion that the power was well transferred, and had been good if reserved to a stranger; but here it was annexed to an interest, and VOL. IV. S |