there was a mistake as to the time it would be raised. Then it was insisted, that as the widow had 10001. left her, with interest, [and the principal could not be paid at the time intended] the interest should be made good till it amounted to 20001. which he had power to raise. But Lord Hardwicke determined that the interest should not be made good out of the power, for that was to charge the estate with a principal sum of 2000 (m).

(m) Probert v. Clifford, 1 Atk. 440.

SECT.

SECTION III.

WHERE AN EXCLUSIVE APPOINTMENT IS AUTHORISED.

WHERE it is intended to give a power of appointing a fund to several objects, or to any of them exclusively, the power should run thus: to all and every, or such one or more exclusively of the other or others of the objects as the donee shall appoint; and in the common case of a power to appoint to children of the marriage, or their issue, it may run thus, providing for every event, to all and every, or such one or more, exclusively of the other or others of the children, or to all and every, or such one or more exclusively of the other or others of the issue of the children, or both, to all and every, or such one or more exclusively of the other or others of the children, and to all and every, or such one or more exclusively of the other or others of the issue as the donce shall appoint.

But we are now to enquire in what cases an exclusive appointment is authorised, although these precise technical words are not used; and first, as to the cases where an exclusive appointment is not authorised.

I. Under a power to appoint " to all and every the child and children" (a), or "unto and among several objects,' every one must have a share (b). So even a power of

disposal, "unto and amongst such children begotten between us, and in such proportion" as the wife shall appoint, compels a distribution amongst all the children, no child can be excluded (c). And in a late case (d), Lord Alvanley held, that a power to appoint " amongst the children as the donee shall think proper," did not authorise an exclusive appointment. He treated the word " amongst," as equivalent to "all and every," which words are mandatory, that each shall have a share (e). And in an early case (f), upon a gift to the wife, " upon trust and confidence that she would not dispose thereof, but for the benefit of her children," it was determined that no child could be excluded.

But,

"to such of

"to one or

II. On the other hand, powers to appoint my children as my wife shall think fit (g)," more of my children as my wife shall think fit (h), '“ to be at my wife's disposal, provided it be to any of my chil dren (i)," "amongst all or such of my children (k)," "to and amongst such of my relations in such parts, shares and proportions (1)," (1) have been held to enable the do

It seems,

(1) In determining this case, the court appears to have placed some stress on the power being for the benefit of relations. however, that the case must have received the same construction had the power been to appoint the children.

nees

nees to appoint exclusively to any of the objects. So where the power was to appoint unto, and amongst all such child or children of A in such parts, shares, and proportions, &c. as B should choose, it was holden to authorise an exclusive appointment, although it was insisted that upon the word all none could be excluded; but the Chancellor said, that the fault of the plaintiff's argument was, that they stopped at the word "all." They must he added, go on and finish the sentence, and then it was, all such child or children as he shall appoint (m). And this construction had previously been established by a case more difficult to manage. Under a marriage set. tlement, a real estate was settled to the use of such child and children, and for such estate and estates and purposes as the husband should appoint, and in default of appointment, the estate was limited to the use of all and every the child and children of the marriage in fee. The father made an exclusive appointment. Against the power it was forcibly argued by the present Chief Justice of B. R. then at the bar, that the grammatical sense and construction of the words plainly imported, that the appointment must be among the children, to such child, if only one, and to such children, if more than one, that "and" could not be satisfied without giving a share to each, that the words such child, and such estate were only added to shew, that even if there were only one child, the father had a discretion as to the estate to be given to him, and that the words in default of appointment, "to all and every the child and children," must mean the same as "child and children" in the former part, and they shewed that the

(m) Wollen. v. Tanner, 5 Ves. jun. 218.

power

power must be executed in favour of every one of the children. But the court construed the power to be exclusive, and read "or" for "and." Ashurst J. considered the case stronger, as the subject was realty aud not personalty, and that, if it had been intended that all should have derived some benefit, they would have said, among them," and they would not have used the word "child" in the singular number, which could only have been added for the purpose of giving a power to appoint to one only; and Buller, J. thought the case of Spring v. Biles stronger than the present. There the power was "to and among such of my relations, &c. in such parts, shares, and proportions," &c. which imported that a division was intended. But in the present case, the words "parts, shares, and proportions," were not used (1) (n).

In many cases an exclusive appointment may be authorised by the apparent intention of the donor, altho* no words of exclusion are expressly used.

Thus in the case of Bevil v. Rich (0), the testator gave all the rest of his estate to AB "on trust to give my children and grandchildren according to their demerits." A B gave the estate to one, omitting the rest. Lord Nottingham refused to set aside the appointment, as the children were to come in by the act of the devisee,

(n) Swift v. Gregson, 1 Term Rep. 432; and soe Kenworthy v. Bate, 6 Ves. jun. 793.

(0) 1 Cha. Ca. 309.

(1) These words, however, can scarcely be considered as important in any case with reference to the question under discussion, as they are inserted to meet the case of an appointment to two or more.

and