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Swift v.
Gregfon,
1 Term R.
432.

to Edward, another younger fon, who brought his bill to be let in to a fhare of the 1,500l. But it appearing that he was otherwise provided for, and because there was a difcretionary power in the father, which he had exercised in a reasonable manner, the bill, after long confideration, was dismissed.

§ 46. Lands were limited in a marriage fettlement, to the use of John Gregson for life, remainder" to and "for the ufe and behoof of fuch child and children "of the faid J. G., &c. and for such estate and estates, "intents and purposes, as the faid J. G. fhould ap

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point, and, for want of fuch appointment, to the "ufe of all and every the child and children of the "faid J. G., &c. equally, fhare and share alike."

John Gregson, by deed reciting the fettlement, and that he had two children, Rain Gregson and Mary Huntley, appointed, that the premises fhould, after his decease, go to the use of the faid Rain Gregson and the heirs of his body, remainder to the faid Mary Huntley and her heirs. Mary Huntley brought an ejectment for the recovery of an undivided moiety of the estate, upon the ground, that the appointment was illufive and void.

Mr. Juftice Buller faid, the words of the power were, "to and for the ufe and behoof of fuch child and "children, and for fuch 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,

and, fecondly, that these words were tantamount to thofe.

His objection was to the minor proposition; these words were not like those affumed; there were no fuch words in this power, as, " to and amongft," but just the reverse, for it was a power to appoint to the use and behoof of fuch child and children; therefore, inftead of including all, it fays, that the appointor may appoint to one only.

The plaintiff's counsel admitted, that, under a power of appointing to fuch of my children, an appointment to one only would be good, but the present words were ftronger. An appointment to one, under a power of appointing to fuch child and children, was good, because it includes one. He cited the cafe of Spring v. Biles, Mich. 24 Geo. 3. B. R., where a power was given to difpofe of lands, " to and amongst fuch of

66

my relations as fhall be living at the time of my deceafe, in fuch parts, fhares, and proportions, as my "wife fhall think proper." And it was determined, that an appointment of the whole eftate to one of the relations was good,

He observed, that that cafe, with the difference only of relations instead of children, was ftronger than the prefent. There the power was, " to and amongst such

σε

"of my relations, &c. in fuch parts, shares, and pro"portions," &c. which imported that a divifion was intended but, in the present cafe, the words " parts,

fhares, and proportions," were not used, and there

was

Kenworthy
v. Bate, 6Vef.
Jun. 793.

1 Vef. Jun. 299.

2 Vel. 336.

4 Vef. Jun.
785.
Vide 5 Vef.
Jun. 859.

A Condition annexed to an Appointment is void.

2 Veley 644. Pawlet v. Pawlet,

1 Wilf. R. 224.

was no evidence of an intention that it fhould be divided into fhares. In that cafe, the court faid, they had not a particle of doubt, but that the word fuch meant one or more. Here, therefore, it must have the fame conftruction. It muft mean, that the ap pointor fhould appoint to one or more.

Judgment for the defendant.

§ 47. It has been determined in some modern cafes respecting perfonal property, that an illufory appointment may be accounted for by circumstances; and, therefore, where a perfon having a power of appointment among his child en, and having advanced one of his daughters in marriage, recited that as a reafon for giving her a fmall fhare. It was held not to be illufory.

In a fubfequent case, it was said, that, in equity, an appointment of a very small fhare was not illufory, if juftified by circumstances; as, where that object was otherwise provided for.

§ 48. A condition annexed to an appointment, where the power does not warrant fuch condition, will be deemed void. So that, if a father, having a power to appoint a fum of money among his children, qualifies his appointment to one of them, with a con. dition, that he fhall release a debt or pay a fum of money, the appointment will be abfolute, and the condition void.

§ 49. The

$ 49. The principle upon which this doctrine is founded, is, that where there is a complete execution of a power, and fomething ex abundanti is added, which is not warranted by the power, there, if the excefs be diftinguishable, fo 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 excefs cannot be afcertained, the execution will then be void for the whole.

§ 50. An appointment to perfons who are not objects of the power, will be void as to those perfons, but good as to those who are objects of the power.

S 51. James Alexander gave by his will 6000l. to two trustees, upon truft to pay the interest and produce to his wife for life; and gave unto his faid wife the abfolute difpofal of the faid fum of 6000 l. unto and amongst such children begotten between them, and in fuch proportions, as fhe fhould by her laft will and testament, or by any deed or deeds, &c. direct, limit, or appoint.

The mother, by her will, appointed part of the money to two of her children, but in trust to pay the interest thereof to their fifter Catherine for her life, and, after her death, to pay the principal to the children of Catherine.

It was held by Sir Thomas Clarke, that the provision made for Catherine was good, but that the appoinment to the children of Catherine was void, because a power

to

An Appointment to P'erjects of the

fons not Ob

Power, is
void.
Goodtitle v.
Weal, 2 Wilf.

R. 369.
Alexander v.

Alexander,
2 Vefey 640.

Adams v.
Ada.ns,
Cowp. Rep.
651.

to appoint to children, would, in no cafe, warrant an appointment to grandchildren.

reciting her power,

§ 52. Lands were limited to Shute Adams for life, remainder to Frances Adams his wife for life, remainder to the use of fuch child or children of the faid Shute Adams and Frances his wife, and for fuch estate and estates as they fhould jointly, or as the furvivor, in case of no joint appointment, fhould by deed or writing, direct or appoint; and, for want of fuch direction or appointment, to the use of the firft and every other fon of the faid Shute Adams and Frances his wife, feverally and fucceffively, in tail. Frances Adams furvived her husband, and, by deed, appointed the premises to the use of Mary Shute Adams her eldest surviving daughter, for life, remainder to trustees and their heirs to preferve contingent remainders, remainder to the first and other fons of the faid Mary Shute Adams in tail male, remainder to her daughters in tail general, remainder to Catherine Adams (the other daughter of Frances) for life, remainder to trustees to preserve contingent remainders, remainder to her fons and daughters in the fame manner, remainder to the use of the right heirs of the faid Frances for ever. Frances Adams died, leaving the said two daughters and one fon.

This cafe being referred by the Court of Chancery to the Court of King's Bench, that court certified their opinion, that, though Frances Adams had exceeded her power, which was confined to child or children, by limiting estates to her grandchildren, yet they thought

the

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