the court exercised a dangerous discretion, as by giving the whole (), or a double share of the estate to the heir at law (p).; but this power the court has of late very properly disclaimed (q), and a discretionary power in a parent, is never executed by the court (r); nor is it controlled except on the ground of fraud, as in the case of an illusory appointment.

Alexander v. Alexander, 2 Ves.

640.

(0) Clarke v. Turner, 2 Freem. (9) See 5 Ves. jun. 859; and see 198; and Mosely v. Mosely, cited, ib.; see Finch, 53. (p) Warburton v. Warburton, 2 Vern. 420; 1 Bro. P. C. 34; and see Carr v. Bedford, 2 Cha. Rep. 77.

(r) Maddison v. Andrew, 1 Ves. 57.

SECT.

SECTION V.

OF THE CONSTRUCTION OF A POWER TO APPOINT TO

CHILDREN.

Ir is upon the power of which I am now to treat, that

by far the greater proportion of cases arise. As we have already discussed, perhaps sufficiently, the general doctrine in regard to the estates which may be created under powers, I shall here only consider, 1. To whom an appointment may be made under a power to appoint to children. And 2. In what manner the fund may be settled upon them, merely premising that an indefinite power in words may, upon the whole instrument taken together, be confined to children (a). And,

I. First then, It is now perfectly established that a power to appoint to children will not authorise an appointment to grandchildren (b).

In the case of Doe on the demise of the Duke of Devonshire v. Lord George Cavendish, a contrary opinion was in effect delivered, although it was pronounced on the particular circumstances of the case. The case was shortly this, Lady Burlington devised freehold estates to the use of the Duke of Devonshire, for life, remainder to trustees, to preserve remainder

(a) Bristow v. Warde, vide supra, p. 376.

(b) Alexander v. Alexander, 2 Ves. 640; Bristow v. Warde, 2 Ves. jun. 336; Whistler v. Webster, ib. 367; Smith v. Lord Camel

to the use of such his

ford, ib. 698; Crompe Barrow, 4 Ves. jun. 681; Adams v. Adams, Cowp. 651; Brudenell v. Elwes, 1 East, 442; 7 Ves. jun. 382; Butcher v. Butcher, 9 Ves. jun. 382.

1

child or children by his late wife for such estate and estates, and in such shares and proportions, and under and subject to such powers, provisoes, conditions, restrictions or limitations as he should appoint;" and in de fault of appointment, to all the child or children of the Duke by his wife as tenants in common in tail, with cross remainders between them in tail, with remainder to the Duke in fee. He exercised the power by limiting the estate to his two younger sons for life, with remainder to their issue in strict settlement, with a power to make jointures, &c. In the view that was taken of the case, it was not necessary to decide the point, but the court gave an extrajudicial opinion upon it (c). They said there were three grounds from which they were of opinion that this was a good execution: 1. From the subject matter of the power; 2. From the limitations over for want of appointment; 3 From the words in which the power was created. 1st, This was not money, nor to be turned into money, nor portions. It was a limitation of a family estate, how it should go after her death. She considered how it should go, being determined that it should go amongst grandchildren. Suppose she had only said, at the time of making her will, that she meant it to go to the grandchildren, it must have been enquired, whether absolutely, or in strict settlement: if so, her answer must have been, "in strict settlement." There are two kinds of settlement, one by which the issue of the person to whom the first limitasion is made shall certainly take, by giving the first taker only an estate for life, the other by creating an estate tail in the first instance. But then there is a trick

(c) 4 Term Rep. 744, n.

in law, by which, when the issue arrive at twenty-one, the entail may be barred. If this had been represented to Lady Burlington, her answer would have been, that she was sorry for it, as it might be a mean of defeating her purpose: but then it would be answered to that again, that there was a trick against that, to make a strict settlement. That was meant; but to guard against all events, she said, "I will put the father in my place, and give him authority, if he choose to execute it." If the words" in strict settlement" had been used, no body could have doubted her meaning. in the language, except those, are used to carry this power as far as possible, and to shew that she meant an appointment in strict settlement. Whatever he might do with his own estate, he might do with this; that was her intention, only that the children were the objects. What is the use of powers? It implies a strict settlement, with power to make jointures, leases, and raise portions.

Now all the words

Upon the foregoing decision it need only be remarked, that as to the first ground, it can at most only go in aid of the construction upon the words of the power itself: that the second ground bears against the construction of the court, as the estate was in default of appointment, given amongst the children in tail, so that they might acquire the fee, and their issue could only take through them, and not as purchasers and that in regard to the 3d ground, the objects were the child or children, and the general words are merely those which are commonly inserted by conveyancers with a view to the interests to be given to the objects designated and not with an intent to extend the power by implication to objects not named in it, nor will the words

bea

bear a contrary construction consistently with the decided cases (d).

The same point arose in Griffith v. Harrison (e). By one codicil an estate, part freehold and part copyhold, was given to his wife for life, and after her decease, "to such child or children of him the devisor as she should judge most proper to bequeath the same to.". By a later codicil he gave the estate to his wife for life, and impowered her to devise the same to any one or more of his child or children, in such manner, share,, and proportion as she should appoint, but so as the said estate should not be divided, but transmitted whole and entire to his heirs. And he gave the reversion of an estate adjoining to the other in like manner, and declared that the two estates should be considered as one estate, and be transmitted entire to his family. In default of appointment, he gave the estate to his own right heirs. The widow appointed the estate to her eldest son for life, remainder to trustees, to preserve remainder to his children in strict settlement in the usual way, with like limitations to her other children and their issue. The court of King's Bench were equally divided in opinion(ƒ): Lord Kenyon and Mr. Justice Grose were of opinion that the children were the only objects, and that the whole execution of the power must be exhausted upon them. The execution which the wife had attempted took in persons who were not children of the testator, and affected to make them purchasers, and was not only not warranted by the power, but might give a descendable quality to the estate to persons out of the testator's

(d) See this case more fully observed upon in Pow. n. to Fearne's Ex. Dev. p. 349. (e) 3 Bro. C. C. 310. (f) 4Term Rep. 737.