$33. A power was given by will to a perfon, " from << time to time, by deed or deeds, writing or writings,

Zouch v.

Woollton,

2 Burr. R.

Rep. 281.

← to limit or appoint to the ufe of any woman or wo-1136. Bla. for and in lieu of jointure, all or any part of men, "the land," &c. The devifee, on his marriage, appointed part of the premises to the ufe of his wife, pursuant to his power.

Afterwards the devifee, by another deed, reciting that he had got an additional portion by his wife, in confideration thereof, and as an additional jointure, appointed another part of the premises to the use of his wife. The queftion was, whether the devifee had not completely exhausted his power by the first appointment, or whether he had ftill fufficient power to make the second appointment.

borne,

It was unanimously refolved, that the power was not Doe v. Milexhausted by the first appointment, and, therefore, that the fecond appointment was good.

S34.

34. An appointment may, in fome inftances, have a partial operation, and only operate as a revocation pro tanto. Upon this principle, it has been held, that where a person having a power of revocation and appointment, mortgages the lands, fuch mortgage only operates as a revocation pro tanto, becaufe, in equity, the mortgagor still continues owner of the estate, a mortgage being confidered as a pledge only for the

money.

$ 35. But where a mortgage is made by the execution of a power, and there is also a complete difpofi

2 Term Rep. 721. S. P.

Fitzgerald v.

207.

6 Bro. Parl. Ca. 295.

tion of the equity of redemption, there the revocation will be complete,

§ 36. A perfon who had a power of revocation and Fauconberg, appointment, conveyed the eftate to trustees and their Fitzg. Rep. heirs, upon truft out of the rents and profits of the premises, or by mortgage, &c. to raise so much money as fhould be fufficient to pay all the debts mentioned in a schedule thereunto annexed, and, after payment thereof, that they fhould pay the overplus (if any) and reconvey fuch part of the premises as fhould remain unfold, to the grantor, or to fuch perfons, uses, and eftates, as he should appoint.

An Appoint

ment may

give a leffer Eltate.

Rattle v.
Popham,

2 Stra. 992.
2 Burr. 1147.

It was determined, that this deed operated as a com, plete revocation of the uses, and not as a revocation pro tanto.

§ 37. The execution of a power will be good, although it limits a leffer eftate than that which the ap pointor was enabled to limit.

§ 38. A tenant for life having a power to limit the lands to any woman he should marry, for her life, by way of jointure, and in bar of dower, made a lease for 99 years, determinable on the death of his wife, by way of a jointure for her.

It was held, on a special verdict in ejectment, that this was not a good execution of the power at law, for the estates were totally different, one being a freehold, the other a chattel.

But

But Lord Chancellor Talbot held it to be warranted.

by the power, faying, that it was not a defective, but 2 Veley 644 a blundering execution of the power.

$ 39. 7. S. having four children, two fons and two daughters, fettled his eftate to the use of himself for life, remainder to his wife for life, and, after their deceafe, to the use of such child and children, and in fuch fhares and proportions as he should appoint. 7. S., by his will, devised a rent-charge out of those lands to his youngest fon for life, remainder to the first and other fons of his body; and if he died without iffue, fo as the eftate fhould come to his eldest fon, then he to pay 500l. a piece to his daughters. The eldest fon infifted, that the power was not well purfued, as the teftator might have diftributed the lands among his children, but had not power to devise a rent-charge, or fums of money. But the court held the appointment to be good.

Thwaytes v.

Dye, 2 Vern. So Vide Roberts v. Dixall, 2 Ab. Eq. 668.

Kenworthyv. Bate, 6 Vef. Jun. 792.

§ 40. In a modern cafe, it was held, that a power of appointing a real estate, was well executed by a devise to trustees to fell, and an appointment of the Longv.Long, money to arife from the fale.

5 Vel. Jun.

445.

ment must not be illu

fory.

§ 41. Where a perfon has a power of appointing An Appointan eftate, or a fum of money, unto and among his children, in fuch shares and proportions as he fhall think proper; the appointor must give the whole among the children, and every child must have fuch a fair and reasonable share as is not illufory.

Pawlet v.
Pawlet,

Will. R.

224.

Menzey v. Walker, Forrest 72.

Pocklinton v.

Ca. in Chan.

450.

§ 42. The truft of a term of 300 years was declared to be for raising such fums of money for the portions of the children of a marriage (except an eldest or only fon) in fuch manner, and at such time, and under fuch limitations, as the husband should by will or deed appoint, fo as fuch fum or fums did not, in the whole, amount to above 2,000 l. There were three younger children, and the husband by his will, reciting that his two daughters were amply provided for by their grandfather, appointed the whole of the fum to his fecond fon.

It was decreed, that the execution of the power was void.

§ 43. Lands were limited" to Samuel Packlinton Bayne, 1 Bro. for life, remainder to his wife for life, remainder to "the use of all and every the child and children of the "faid S. P., &c. in fuch parts, fhares, and propor❝tions, and for fuch estate and eftates, not exceeding "an eftate or eftates tail, with or without power of "revocation, and by, with, and under fuch powers,

provifoes, remainders, or limitations, over to fome or one of the faid children, as the faid S. P. fhould "by any deed or writing, or by will, direct or ap "point; and for default of fuch appointment, then "to all and every the children, to be divided share "and share alike."

S. P., by will duly attefted, 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

the life of the furvivor of them, with remainder to such person or perfons as fhould be entitled to the refidue of the faid premises, and then limited the refidue to his fecond fon Henry, in ftrict fettlement.

Lord Thurlow was clearly of opinion, that the execution of the power was totally illufory, 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.

the

S 44. If, however, it appears from the words of power, to have been the intention of the parties, that the donee fhould give the whole of the property to any one of the children, or perfons intended to be benefited, an appointment to one will be good.

Thomas v.

Thomas, 2 Vern. 513.

Austin,

§ 45. The truft of a term was declared, that if Ro- Austin v. bert Austin should die leaving iffue by his wife, a fon 2Ab.Eq.667. and other children, then to raise a fum not exceeding 1,500 l. for the fole benefit and advantage of fuch child or children, (other than the eldest), in fuch proportions, manner, and form, in all refpects, as the faid R. A. fhould for fuch purpose, by his last will in writing direct, limit, or appoint; and in default of fuch direction, then to the fole benefit of fuch child, if but one, and if more, (other than an eldeft), to them all equally.

R. A., by his will, directed the money to be raised, and appointed 450l. to Robert, one of the younger fons, and 1,050l. to his daughter; but gave nothing

to