held that the power was void, as being inconfiftent with the fee given to the devisee in the first instance; and that she could not convey without a fine.

It is obfervable that this was not a power given by means of a conveyance to uses, and that the authority of this case has been questioned.

Vide Cox v. Chamberlain, infra ch. 16.

Who may

be

Appointees. I init. 3 a.

§ 33. All perfons capable of taking lands by any common law conveyance, may be appointees. And a married woman may take by appointment from her "1. husband, because she does not take immediately from him, but from the releafees to ufes in the deed, by which the power is created.

§ 34. It frequently happens that eftates are fubject to a power of appointment in the first taker, with remainders over in default of fuch appointment, upon which an opinion has obtained in fome inftances, that fuch a power fufpended the effect of the fubfequent limitations, and kept them in contingency, inftead of their vefting, fubject to be devefted by a subsequent execution of the power. But this doctrine has been altered by the following cafes.

§ 35. By marriage articles, money was agreed to be laid out in the purchase of lands, to the ufe of the husband for life, remainder to trustees during his life, to preserve, &c.; then to the wife for life; then to all and every the child or children to be begotten by the husband on her body, for fuch eftate, &c. proportion, &c. as the husband and wife during their

VOL. IV.

R

joint

A Power of Appointment does not fufpend the velting of Remainders.

Tit. 15, ch. I.

f. 57. Fearne Cont,

Rem. 343.

Cunningham v. Moody,

1 Ves. 174.

joint lives, by any writing under their hands and feals attefted, &c., fhould appoint: in default of a joint appointment, then as the furvivor fhould appoint; and, in default of appointment, to be equally divided among the children, if more than one, as tenants in common, with crofs remainders and benefit of furvivorship; if but one, then to the child in tail; in default of fuch iffue, to the husband, his heirs and affigns, for ever.

Upon a question, whether the inheritance in the lands to be purchased would have vefted in the father, it was contended it could not; becaufe, during his whole life, the inheritance, fuppofing a purchase made, would have been in abeyance: for, as he might have limited it to any child in fee, and the provision over in default of appointment would then have been out of the question, it was a fpringing ufe, refting in fufpenfe during his life, for which Lord Conway's cafe was referred to.

But Lord Hardwicke held, that, the father taking an estate for life by the fame fettlement, the inheritance would have vefted in him. He said, that, where no perfon was feen or known, in whom the inheritance could veft, it might be in abeyance; that the fees being in abeyance, had, in fome cafes, occafioned an act of parliament to remedy it; but there it was not fo: nor did the power of appointment make any alteration therein: for the whole effect thereof was, that the fee, which was vefted, was thereby fubject to be devefted, if the whole was ap pointed

pointed; or, if part, fo much as was not drawn out of the inheritance ftill remained in the father, as part of the old fee; and there was no occafion to put the inheritance in abeyance, which the court never did but from neceffity; and would fo mould it by opening the estate, as in Lewis Bowle's cafe, and in feveral others, as best to answer the purposes of the limitations: but, if the appointment was not made, it remained undisturbed.

It is to be observed, that this was not a cafe, in which the estate was originally the father's, or vefted in him at all before the fettlement; where the limitation of the fee to him, being the reverfion, and part of his old eftate, would have remained vested in him, till devested by the vesting of a contingent remainder. But it was the case of money, to be laid out in lands, where the father's title to the inheritance was to originate in the fame fettlement as the limitations to the children; and by which (as Lord Hardwicke obferved), as the father took also an estate for life, the inheritance, according to the ordinary rules, vefted in

him.

Martin,

4 Term R.

§ 36. By marriage fettlement, lands were limited Doe vi to the use of the wife and her heirs, till the marriage, afterwards to her feparate ufe for life; remainder to 29. the use of her husband for life; remainder to the use of all and every the child or children of the marriage, or fuch of them, for fuck intents and eftates,&c. and in fuch parts, fhares, and proportions, as the hufband and wife fhould by deed appoint; and, for want of R 2 fuch

fuch appointment, then to the use of the child or children of the marriage, in fuch parts, fhares, and proportions, and for fuch eftates and interests, as the furvivor of them fhould by deed or will appoint; and, for want of fuch appointment, then to the ufe of all and every the child or children, equally, fhare and share alike.

Upon a question, whether the remainders to the children were vefted or contingent, it was contended, that the power of appointment prevented their vesting, by absorbing the whole fee; and the cafes of Leonard, Lovie, Loddington v. Kyme, and Lord Conway, were cited in fupport of this conclufion.

Lord Kenyon, after observing that the judgment must depend on the authorities cited, the three leading of which were, Lovie's cafe, Walpole v. Lord Conway, and Cunningham v. Moody, and noticing the opinions in the two laft, was happy to find, that, in the last of these cases (Cunningham v. Moody), where Lord Hardwicke had an opportunity of re-confidering this queftion more fully, and at a time of life when his judgment was more mature, he determined differently from the the opinions held in the two former. His lordship faid, he could not find any fubftantial diftinction between that cafe and the principal one. That the limitations to the children were first fubject to a power of appointment to the children, &c.: and, whether the limitations preceded or followed the power of appointment, it made no difference. That the opinion of Lord Hardwicke in the latter cafe was

peculiarly

peculiarly deferving of attention; because, when it was difcuffed, the former one of Walpole v. Lord Conway, where he had intimated a different opinion, was ftrongly preffed upon him; and becaufe too he decided the laft cafe at a time when he had the affiftance of fome of the most eminent lawyers that ever attended the bar of that court. Lord Kenyon therefore thought, that, on the authority of that cafe, the remainders to the children were vefted, fubject, nevertheless, to be devefted by the parents executing the power.

Mr. Juftice Buller cited the cafe put by Mr. J. Powel, 2 Ld. Raym. 1158., of a limitation to fuch perfons as A. fhould appoint by will, remainder over, in fupport of the fame conclufion, and judgment was given accordingly.