so that in the case of a power created by will, children born in the testator's lifetime, though after his will, stand in the same situation as children born at the execution of the deed where the power is created by deed (0). We must be careful not to destroy this distinction by extending it to an instrument executing a power, for whether the power be executed by deed or will, the limitation in regard to the question of perpetuity must receive the same construction. The point of inquiry is the instrument creating, and not the instrument executing the power.

It remains to observe, that a power may be given to a person in esse, to appoint an estate amongst his grandchildren, or more remote issue born during his life; and even where the power is given generally, yet if he only appoint to such as are living at his death, it will be good (1) (p). There is no objection to the due execution of such a power on the ground of perpetuity. And a power to appoint to "issue," includes all issue, however remote, born in due time (q).

But although a limitation under a power may be void, as too remote, yet where the power is executed by will, the courts will construe it as a proper will, and endeavour to put such a construction on the limitation as will bring it within the proper limits. This will be considered hereafter (r).

(0) Duke of Devonshire v. Lord G. Cavendish, 4 Term Rep. 741.

jun. 150; Routledge v. Dorril, 2 Ves. jun. 357.

(2) Hockley v. Mawbey, ubi sup.

(p) Hockley v. Mawbey, 1 Ves. (r) Vide infra, sect. 8.

(1) As to the effect of an appointment to those born afterwards, vide

infra, sect. 8.

SECT.

SECTION II.

OF THE CONSTRUCTION OF POWERS IN GENERAL.

We may here consider, 1. What estates may be created under powers in general: 2. The construction of limitations in instruments executing powers; and 3. What acts are authorised by different powers, reserving the consideration of such powers as appear to require a separate discussion.

And 1. Where the intention is clear, a power may enable the disposition of a fee, although no words of inheritance are used, as where a testator gives a power to sell lands, the donee may sell the inheritance, because the testator gives the same power he himself had (a). So a general power to dispose of an estate in favour of a particular object will authorise the limitation of a fee, although no words of inheritance are contained in the power. This was decided in the 26 Car. 2. in a case which underwent great consideration (b). The devise was to the testator's wife for life, " and by her to be disposed of to such of my children as she shall think fit." It was agreed that the wife took for life only, and that the power to dispose did not relate to her life estate; but the question remained as to what estate the wife was authorised to limit to the children. Upon the second argument, Vaughan Chief Justice, and Atkius, seemed to incline that she should have power to

a) Liefe v. Saltingstone, infra.
(6) Liefe v. Saltingstone, 1 Mod.

2A2

189; 1 Freem. 149, 163, 176; 2 Lev. 104; Cart. 232.

dispose

dispose of an estate for life only, because if the testator had said, I dispose of it to my son, it would have been but an estate for life. But Windham and Ellis held otherwise, as there was a difference between a devise of an interest and a power; and they granted, that if the testator had said I dispose of it to my son, it would have been but for life; but here the testator gives a power to dispose, which seems to imply such a power as he himself had, which was to dispose of the fee (1) (c). After another argument, Atkins came over to the opinion of Windham and Ellis, and they three pronounced judgment in favour of the power enabling a limitation of the fee. But Vaughan Chief Justice dissented from his brothers, on the ground, that the wife was merely to nominate what person should take by the will, the plain signification of which was, "I bequeath the estate to such of my children as my wife shall think fit, at her disposal;" and by this way the children would take it expressly by the gift of the testator; and the words (at her disposal) are with relation to the children and not to the estate; and when she hath disposed of it to any child, that child shall have but an estate for life. But he added (with some want of decorum) subirascens, sententiæ numerantur non ponderantur.

In Leonard Lovie's case (d) the uses of a feoffment were declared to be, to the use of the settlor for life, with power to make leases, and then to the use of the

(c) See 1 Freem. 164.

(d) 10 Rep. 78.

(1) Levinz states, from the relation of a friend, that Vaughan and Atkins were in favour of a fee, and Windham and Ellis contra; but he was misinformed, 2 Lev. 104; nom. Sir Richard Saltonstall's case.

performance

performance of his will, and to the use of such person and persons to whom he should devise any estate or estates in the premises; and it was holden, that without question he might devise the land to any person in tail or fee.

And in a recent case in the court of King's Bench (e), the testator, after an estate for life to his grand-daughter, gave the estate to the lawful issue of her body, in such parts, shares, and proportions, manner and form aş she should appoint, and in default of appointment, to the children (as the court determined) in fee. My Lord Ellenborough, in delivering the judgment of the court, said, that this power in the course of the argument, was said, but not much pressed, to be only a power to appoint to her children in tail; and if that were so, it would furnish an inference, that the limitations which were to take place in default of appointment were intended to be of the same nature. But the court thought that this devise gave a power to appoint in fee; for admitting that there might be ground to contend that the power was only to appoint in tail, if the power of appointment had only been " to the use of her lawful issue, in such parts, shares, and proportions as she should direct;" upon which it was not to be understood that they gave any opinion (f); yet when the words "manner and form" were added, there could be no doubt but that in order to give them some effect (and every word, if it could, ought to be made operate), something more must be understood than merely a power of unequal division of an estate, to be limited in a certain

(e) Rex v. the Marquis of Staf- (ƒ) See Phelp v. Hay, MS. App. ford, 7 East, 521. No. 11.

course of descent and if they did mean any thing beyond a power of division, they must import a power of determining the nature and quantity of the estate the issue should take and if so, the mother might appoint estates in fee to all or any of her children.

It was not observed in the preceding case, that in Godolphin v. Godolphin (g), Lord Hardwicke thought that the words manner and proportion would not enable a limitation further than for life, although indeed this case depends too much on its own particular circumstances to be cited as a precedent.

In a case before the present Master of the Rolls (h), the testator, after devising an estate to his wife for life, gave it " unto and amongst all and every our children in such manner and in such proportions as she shall appoint." He then empowered his wife to sell the estates, and to lay out the money and receive the interest for life; and after her decease he directed and appointed the same, both principal and interest, to be paid "to and among our children in such proportions as aforesaid." The widow made no appointment. The Master of the Rolls said, that though in the devise of the lands in the first part of the will there were no words of inheritance, yet in the subsequent part, the testator giving his wife power to sell the estate, and appointing the money, both principal and interest, among the children; as the testator could not be supposed to intend to give them a larger interest in that part than in the former, they took several estates of inheritance.

(g) 1 Ves. 21.

(h) Casterton v. Sutherland, 9 Ves. jun. 445.