the fame ought to prevail, fo far as her power extended, and that the limitations to her daughters for life were good, but that the difpofition of the inheritance to the child or children was void. They were, therefore, of opinion, that there was no appointment of the inheritance of the premises; that the fon took an estate tail therein, subject to the estate for life, to his fifters. ufe G. Cavendish, 4 Term Rep. 741. $ 53. Lady Burlington devifed all her real estates to Doe v. Lord trustees to the use of her fon-in-law, the Marquis of Hartington, for life, and, after his decease, to the and behoof of fuch of his child or children, by Charlotte Lady Cavendish, his late wife, for fuch eftate and eftates, and in such shares and proportions, and under and subject to fuch powers, provifoes, conditions, restrictions, or limitations, as he should, by deed or will, nominate, direct, or appoint; and in default of fuch nomination, to the use of all and every the child and children of the faid Marquis of Hartington by his faid wife, equally to be divided between them as tenants in common, and of the feveral heirs of their bodies. The Marquis of Hartington (being Duke of Devonfhire) made his will, by which he gave all the eftates which he had power to difpofe of, under Lady Burlington's will, to his two younger fons, Richard and George Cavendish, for life, with remainder to their first and other fons in tail male, with remainder to his eldest fon in fee, Upon Upon a cafe reserved in ejectment, the question was, whether the Duke's will was a good execution of the power given him by Lady Burlington, to any, and what extent. Lord Mansfield delivered the opinion of the court. The first question determined, was, that the plaintiff's deriving great benefit under the Duke's will, were bound to acquiefce in his difpofitions throughout. 2d, That the appointment was good to Lord George for life, and, therefore, the ejectment was premature. 3d, The court was of opinion, that the appointment to the children of Lord George was good. But, as to this last point, the opinion of the court, which was extrajudicial, seems to be contradicted by the following cafes. § 54. By fettlement on the marriage of James Dunn and Dorothy Wright, certain estates were conveyed to the ufe of James Dunn for life, remainder to the use of trustees, in trust for such child or children of the said James Dunn and Dorothy Wright, and for such estates, and in fuch proportions, as the faid James Dunn fhould by deed or will appoint; and in default of fuch appointment, in truft for the first and other fons of the faid James Dunn by the faid Dorothy, in tail male; and in default of fuch iffue, in truft to raise portions for daughters, &c. James Dunn having by the faid Dorothy one fon and four daughters, devised part of the eftates, namely, the estate of Great Chilton and Dalton Percy, charged with his debts and two annuities, to two of his daughters, to the use of his fon James Dunn for life, remainder to the first and other fons of the faid James Dunn the fon, in tail general, remainder to his daughter's in tail, as tenants in common, remainder as to that part of his eftate at Great Chilton, which lay on the eaft fide of the road, to one of his daughters in fee; and as to the part which lay on the west fide, to another daughter in fee. Upon the death of James Dunn the father, his fon entered on the eftates devised to him, and having fuffered a recovery of them, to the use of himself in fee, he difpofed of them by his will, and died without issue. An ejectment was brought by the two fifters, to whom James Dunn had appointed the premifes, on failure of iffue of the fon of his fon; and upon a cafe sent out of the Court of Chancery to the Court of King's Bench, that court was of opinion, that the appointment to the fons of James Dunn the fon was void. A Power cannot be $ 55. A power of revocation and appointment cannot be delegated to another, whether the power relates delegated. to the land, or is collateral to it, it being a principle of law, that delegatus non poteft delegare. laram, 2 Atk. 83. $56. A husband by his marriage articles and fet- Ingram v. tlement, had a power of difpofing, by deed or will, of a reverfionary intereft, to the iffue of the marriage, in fuch proportions as he fhould think fit. The hufband, by his will, reciting the power, delegated it to VOL. IV. Τ his Unless there are fpecial Words. How v. 1 Vent. 338. 2 Show. 57. Freem.476. his wife, that she might difpofe of the estate among the children, in fuch proportions as fhe fhould think proper. Lord Hardwicke faid, this must be confidered as a power of attorney, which could only be executed by the husband, to whom it was confined, and was not in its nature tranfmiffible to a third perfon. $ 57. But if a power be exprefsly reserved to be executed by a perfon and his affigns, an execution by an affignee will, in fuch cafe, be good; and a devifee will be a good affignee, within the words of fuch a power. § 58. A fine was levied of certain lands, to the use of T. for life, remainder to 7. his fon and the heirs male of his body, remainder to his executors I The and affigns, for eighty years, and that he and his alfo conceived, that affignees included affignees in law as well as in fact, but that the tenant in tail, having devifed the term, the devifee was an aflignee, and the power, in the greatest ftrictness of acceptation, was in fieri, and confequently muft go to his executors, and by the fame reason to their affignee. $ 59. An instrument may in fome cafes take effect, either as an appointment of the ufe, or as a common law conveyance; and in Clere's cafe it was determined, that where a feoffment was made to the ufe of such person and perfons as the feoffor fhould appoint, and until appointment, to the use of himself and his heirs; if in fuch a cafe the feoffor devised the land by will (having a power to devise it) as owner, without any reference to his power, it would pass as a devife, by the will; and not as appointed, under the power. For the teftator had an eftate devifable in him, and also a power to limit a ufe, and he had his election to pursue whichever of them he chofe; so that when he devised the land itself, without any reference to his power, he fhewed his intention to pass the estate by his will, as owner of the land, and not to limit a use under his power. In what Cafes an Inftrument operates as an Appointment, Rep. 18 a. Cro. Eliz.877. Cro. Jac. 31. Hob. 160. Crofs v. Hudfon, ch. 20. Chamberlain, 4 § 60. By the fettlement, made on the marriage of Cox v. Thomas and Elizabeth Cox in 1777, a power of revoking the uses of the fettlement, with the confent of the 631. trustees, was given to Cox and his wife, fo as before fuch revocation they should convey and affure other lands, of equal or better value, in lieu thereof, to the fame uses. By indentures of leafe and release, dated T 2 |