other in point of sense, not upon omissions, occasioned by negligence. He has done enough to shew that the legacies are to be paid out of the funds. He gives his 3 per cents. to Mrs. Foljambe for life, then the legacies to the three ladies to be paid out of the 4 per cents. Then he gives the legacies to the Danvers family, then the £100 legacy, and, after that, the legacy to Mrs. Bennet to be paid out of the 4 per cents. Nothing is more usual than, in making wills, when the party has named the fund, not to repeat it to the next legacy. Then the legacies, amounting to £600, are expressly to be paid out of what the stock would sell for, after payment of the first dividends; and he says he means the same as to all the legacies he has bequeathed away. Then, by his codicil, he says, I find I have willed away £5600 4 per cents. This must apply to all the legacies; without those to the Danvers, the legacies would not near amount to that sum. The having mistaken the whole amount will not vitiate the clear intent.

Mr. King (for Mrs. Foljambe). With respect to the £400, it must be taken, not as a legacy, but as a residue; and, although the residue turns out to be larger, she must take that; as, if it had been less, she could have taken no more than the residue.

Lord Chancellor [Thurlow]. Upon the whole, the best construction that can be put upon this will, is that insisted upon by the defendants. He professes an intention of disposing of his whole property. With respect to the legacies to the five ladies, if the case went no further, it would be impossible to construe them otherwise than stock legacies. Then there are several other legacies to be paid from the 4 per cents. There is no doubt as to the common rule, that the last antecedent shall govern what passes before. I think it at least as probable, that the words govern all the class of legacies as the contrary. He then gives the legacy to Mrs. Cobb and the other persons, including the servants and parish boys, amounting to £600. Here he adds out of the stock, to be sold after the first dividend. The intention is, that, as they were small legacies, he did not intend the executors to transfer the stock, but to raise them by sale. Then he goes on, I mean the same to the rest of the legacies I have bequeathed, referring back to the former legacies: this must include all the classes. To say, in such a will, it is manifest what the [22] intention was, is too much; the expressions render it open to much argument, as to the application to the second class; but it is probable he meant it so to apply. But it does not rest here; for, by the codicil, he recites his disposition of a fund. He thought he had disposed of it to a farthing. A man who gives a fund in proportions, must mean proportions of that fund. It therefore amounts to a supposition, on the part of the testator, that they were parts of the fund. But he has mistaken the fund, and computed it wrong, so as to make a different residue. But although that be the case, it will be nearer the general intention to give the residue, as it really is, to Mrs. Foljambe for life, than the contrary construction. (Reg. Lib. 1785, A. fol. 808 b.) (See also the judgment of Lord Thurlow, reported by Mr. Cox, 1 Cox, Ch. Ca. 203, &c.)

ROBINSON against HARDCASTLE. [26 & 27 January 1786.]

[Vide S. C. 2 Bro. C. C. 344.A power being given to appoint an estate among children: Quære, Whether it is well executed by giving to a son for life, with remainder to his sons in tail? (Note: It was afterwards held a bad appointment; and that such a power to appoint amongst children did not extend to grand-children. See 2 Bro. C. C. 344. For some observations of Lord Eldon, C., in approbation of what Lord Thurlow says in this case, 2 Bro. C. C. 30. See in Thelluson v. Woodford, 11 Ves. 145.)

By indentures of lease and release 13 and 14 July 1713, the release being between Robert Dunn, then of Great Chilton, in the county of Durham, gent., and Jane his wife (grandfather and grandmother of plaintiff), deceased, and James Dunn (plaintiff's late father), also deceased, and other parties, in consideration of a marriage intended between said James Dunn and Dorothy Wright, and of a settlement made by Robert Wright, of lands in Dalton Piercy, for the marriage portion of Dorothy, Robert Dunn and James his son, conveyed to trustees the estate at Great Chilton, &c., in trust for James Dunn the son for life, and to secure a rent-charge by way of jointure to Dorothy, remainder in trust for such child or children of the body of the said James Dunn, upon the body of the said Dorothy Wright, to be begotten, and to, for, and upon such estate, estates, trusts, intents, and purposes, and in such proportions, as the said James Dunn the son should, at any time during his life, by any deed or deeds in writing, or by his last will, under his

hand and seal to be executed in the presence of two or more credible witnesses, direct, limit, or appoint. (Vide 2 Bro. O. O. 344.) And in default of such direction or appointment, or as and when the said uses, estates, and trusts to be directed or appointed, should respectively end, and determine, then in trust for the first son of the body, &c., in tail, and in default of such issue to the second son in tail, &c., and in default of such issue, in trust by [23] mortgage or sale, or the rents and profits in the mean time, to raise and pay £800 for the portion of all and every the daughters of the marriage, if more than one, to be equally divided among them, to be paid at their respective ages of twenty-one, or marriage, with benefit of survivorship, in case of death before that time, and, subject to such trusts, then in trust for James Dunn the son, and the heirs of his body, and, in default of such issue, for James Dunn the son in fee.-The marriage took effect, and they had issue one son named James, and four daughters, namely, Margaret, the plaintiff Elizabeth, Anne, and Catharine.-Robert Dunn, Jane his wife, and Dorothy the wife of James Dunn died in the life-time of James; Margaret intermarried with the defendant Wright; and the plaintiff intermarried with Christopher Robinson, since deceased; Anne, another of the sisters, intermarried with the defendant Hardcastle, Catharine remains unmarried. James Dunn, having such power of appointment of the settled estates, and being possessed of certain leasehold estates at Dalton Piercy aforesaid, held by lease for twenty-one years, under Queen's College, Oxford, and being also possessed of personal property, to a considerable amount, some time before his death, made his will, properly attested to execute the power, and did thereby charge all his messuages, lands, &c., at Great Chilton and Dalton Piercy, with payment of all his just debts and funeral expences, and also with the payment of £12 a year to his daughter the said Margaret Wright, during her life, and with the further payment of £30 a-year to his said daughter Catharine Dunn for life, and the testator did thereby give and devise his said estates at Chilton and Dalton Piercy, so charged and chargeable as aforesaid, and all other his real estates whatsoever, unto his sons-in-law, to the use of his son the said James Dunn, the plaintiff's brother, and his assigns for his life. without impeachment of waste, and after the determination of that estate to the said trustees during his life, to preserve contingent remainders, and after the decease of his said son, then to the use of the sons of the body of his said son in tail general, remainder to the use of all and every the daughters of his said son, in tail general, as tenants in common, and in default of such issue as to all that part of his estate at Great Chilton which lies [on the east side of the post road, leading from Rashby Ford to Ferry Hills], and all the farm at Dalton Piercy, commonly called the Out Farm, to the use of his daughter Elizabeth, the plaintiff, her heirs and assigns, for ever; and as to all that part of this estate at Great Chilton, situate, &c., and also all that part of his estate [24] at Dalton Piercy, called the Town Farm, to the use of his daughter Anne Hardcastle, her heirs and assigns, for ever, with a power to his son James Dunn to charge all the premises at Great Chilton and Dalton Piercy with any annual sum not exceeding £100, as a jointure, and to appoint any part or parts of the real estates to his younger children and their heirs, in such manner as his said son should think fit, as a provision for such child or children and their issue, and to charge any part or parts of the estate with any sum or sums of money he should think fit, as portions for younger children; and did also give to his son a power of leasing in possession, and not in reversion; and declared his will to be, that in case the limitations to his two daughters should take place, they should severally pay and discharge an equal moiety of such annuities, &c., as should be chargeable upon his estates; and after giving some specific legacies to his daughters, gave the residue of his personal estate to his son. By a codicil, bearing even date with his will, and duly attested, after reciting the devise in his will of his estates at Dalton Piercy, and that those estates were leasehold, not freehold, he bequeathed them to his sons-in-law, in trust to renew the leases from time to time, and to pay the rents, &c., to the persons who would be entitled, from time to time, to his estates in Great Chilton; and in case the limitations to his daughters should take place, from that time that part of his estate of Dalton Piercy, called the Out Farm, in trust for the plaintiff, and that part called the Town Farm, in trust for Anne Hardcastle. Anne Hardcastle died in the life-time of the testator her father, who himself died in September 1767, leaving the said James Dunn, the plaintiff's said late brother, his only son and heir at law, him surviving, who, in June 1769, suffered a recovery of the real estates, to the use of himself in fee, and, in December 1777, made his will, and thereby gave and devised his messuages, lands, &c., in Great Chilton (subject to the annuities to his sisters) to his

nephew the defendant John Hardcastle, his heirs, and assigns, for ever: and he thereby gave and bequeathed all his messuages, &c., at Dalton Piercy, to the defendant George Robinson, eldest son of Christopher Robinson, the plaintiff's late husband, to hold to him, his heirs and assigns, for ever; with a proviso, that if the said George Robinson, his heirs or assigns, should commence any suit in any court of law or equity, or should disturb the defendant John Hardcastle, his heirs or assigns, in the [25] possession or enjoyment of the premises at Great Chilton, or refuse to do proper acts to confirm the estate therein, this devise should be void, and the devised estate go to John Hardcastle. James Dunn afterwards made a codicil, dated January 1779, reciting, that the estate held of Queen's College, Oxford, might be renewed during his life; and declaring, that if it should be so, any new lease should be subject to the provisions in the will. He died unmarried in 1779, leaving Margaret Wright, the plaintiff Elizabeth, and defendant John Hardcastle and Catharine Dunn, his heirs at law. After making his will, he surrendered the leasehold premises, and took a new lease.

Mr. Mansfield and Mr. Mitford (for the plaintiff). The object of the bill is to have the estate at Great Chilton. The devise of the leasehold estate was revoked by parting with it to the son in the father's life-time, and subsequent to the making of the will. Notwithstanding, Dunn the son was only tenant for life, he did, in June 1769, by means of the trustees joining, suffer a recovery to himself, his heirs and assigns. The words of the power given to Dunn the father were, "in trust for children, and to, for, “and upon such estates, trusts, and purposes, as Dunn should think proper." This power gave the tenant for life, a complete fee as to the disposal of the estate, limited only as to the object. It is objected, that the power has not been well executed; and one objection is, that the power was confined to children: that James Dunn had no power to appoint to children, and to their children after. The answer is, that he is to limit estates at his pleasure; so that he might limit life estates. The power gives to Dunn the father the greatest latitude. It gives to the person who has the power, a mode of ownership, Zouch v. Woolston, 2 Burr. 1136. In Cavendish v. Cavendish,(1) in B. R. 22 Geo. 3 [1781-2]-upon Lady Burlington's will in 1755, the whole family were held to be objects of the power; and, unless that case can be distinguished some how from this, it is a decision upon it. But there was another ground taken in that case, which applies strongly to this; for it was held, that the void limitation would not prevent those which were good from [26] taking effect. So here, if the appointment to grandchildren be void, yet the appointment to children is good, and shall prevail for the appointment will be held good as far as it was in the capacity of the man to do the act. Alexander v. Alexander, 2 Ves. 644. A power may be good in part, and bad in part, and the excess only is void, where the execution is complete, and the bounds between it and the excess clear; and the same is the doctrine in Adams v. Adams, Cowp. 651. Now, the interest limited to the plaintiff in this case is good, and ought to take effect, though the remote limitations are void; for it will be the same as if the power had limited to the son for life, remainder to Mrs. Robinson, as a contingent limitation; and, if not too remote, it is good, and the act of Dunn the son, in suffering the recovery, will not have the effect of defeating the limitation for those who come in under the trustees will be considered in the same light as the trustees. But supposing the execution of the power to be void in toto, or that, if good in part, the limitation to Mrs. Robinson has been defeated by the recovery suffered, she will be entitled to a satisfaction out of her father's personal estate, come to the hands of the son, for the loss she has sustained, in being deprived of the moiety in the Chilton

estate.

Mr. Scott and Mr. Graham (for the defendants). The words of this power will be fully satisfied by a division among the children. In Lowson v. Lowson, in this Court, about a year ago, your Lordships intimated an opinion concerning the law of Cavendish v. Cavendish, that it was an anomalous case. It does not appear that there is any case which supports the limitation in Cavendish v. Cavendish the power was intended to be just the same as in the cases of Alexander v. Alexander, and in Mallison v. Andrews. (2) In the former of those cases, the giving a reversionary interest was holden an elusory execution of the power, in the latter that if the deceased daughter had left issue, the gifts could not have been to them. Cavendish v. Cavendish does not apply; for that [27] case went upon its own circumstances. The Duke having very considerable property besides, did not confine himself to that which was the subject of the power, but made large bequests besides; so that the devisees, having

taken the benefit of those bequests, were barred from bringing ejectments to try their right to the premises disposed of by that will. With respect to the striking out the intermediate limitations, there is no doubt, but, as in Adams v. Adams, the extension of the limitation to grandchildren is bad. The intent of the owner must have great weight; and it is to be considered according to the rules of language, what that intent is, as in Avelyn v. Ward, 1 Ves. 420. Jones v. Westcombe, 1 Eq. Abr. 245. Dougl. 78. Rolle's Abr. title Remainder, 2 vol. 415.

Mr. Mansfield (in reply). Such a power as this is to be construed very liberally; it amounts to giving him a fee; it is a power of the very largest extent, like the case of Zouch on the demise of Woolston v. Woolston, 2 Burr. 1136. These powers are very different from powers given under acts of parliament, which are always construed very strictly. The first question is, whether the power enabled James Dunn to give his children estates for life, or he must at once exhaust his whole power. The power is to give to his children for such estates, and upon such trusts, as he shall think proper. The second objection that is made is, that the power is to give to the child or children, which does not extend to grandchildren: but this confined sense is not given, in law, to the word children. It is not always confined to children, properly so called: as in Wild's case, 6 Co. 16; nor is it so confined in common language. It is objected again, that if he can carry it further than children, he may carry it to great and greatgreat-grandchildren: but where an ancestor gives his estate among his children, he means it to descend. It is also objected, that the children are purchasers; so are the grandchildren also. It may extend to all the descendants, though it cannot to strangers. It was observed by Lord Mansfield, that the intent of the power was to keep the estate as long in the family as the law would admit. With respect to the authority of Alexander v. Alexander, there were no such words in that case as there are in this; it was merely a power to dispose of money among children, in such proportions as the mother should think [28] fit. Lord Mansfield treated that as a very different case. The case of Adams v. Adams, in Cowper, is also very different from Cavendish v. Cavendish, and still more different from the present case. The words there expressly limited the power, and in fact there was no dispute upon the point : the counsel gave it up. There are words in this case not to be found in that. But Cavendish v. Cavendish, upon both the points, comes up to this. The first point there was upon the execution of the power, the second upon there being no son. Lord Mansfield, for the first time in a court of law, took up the point of election; but that point was not argued on behalf of any of the parties, because, during the life of Lord Richard Cavendish, the appointment was clearly good, he being the appointee. Lord Mansfield observed there were three grounds on which all the judges held the execution of the power to be good; 1st, the subject-matter; 2dly, the manner of execution; 3dly, the nature of the power; and held it a totally distinct case from Alexander v. Alexander. There was, in Cavendish v. Cavendish, another ground, which rendered it unnecessary to determine the point. The limitation was to Lord Richard for life; remainder to his first and other sons in tail; remainder to Lord George for life; remainder to his first and other sons in tail. The appointment to Lord Richard was held good, and also that to Lord George. Lord George, in that case, and Mrs. Robinson in this stand precisely in the same situation. The second point is, whether, supposing the power to be exceeded, the subsequent limitation to the daughter must fail. Mr. Graham contends, that the execution of the power, under the words here used, must be construed strictly, like the case of the monk in Rolle's Abr. tit. Remainder (2 Rolle's Abr. 415); and, therefore, the first limitation not being good, the subsequent execution of the power would fail also. I have always thought these uses were construed otherwise, even at law. This is only the declaration of a trust, which, by its original creation, was to be declared by any deed or writing. The will, like all others, is to be taken from what appears upon the face of it. The estate is a trust, not a freehold. The limitation is to James Dunn the son, with remainder to his sons, remainder over to his daughter Mrs. Robinson. But there is no case where the first devise being bad, has made the subsequent devises bad also. If the first limitation cannot take effect, the subsequent ones will take effect immediately. Mr. Graham has mentioned a few cases, which I shall [29] repeat. merely for the sake of laying them aside from the present case. Jones v. Westcombe was the reverse of this: the testator had meant to do one thing and had done another. Avelyn v. Ward was much such a case as Jones v. Westcombe. Watson v. Shepherd. in Douglas, has no relation to the present case. In

all the cases, as, for instance, where the gift is to a monk, or other person who cannot take, the subsequent limitation must take place immediately; as in Goodright v. Cornish, 1 Salk. 226, and 1 Eq. Abr. 189; Scatterwood v. Edge, 1 Salk. 229, which follows the other in 1 Eq. Abr. As to the main point in those cases, it has been since over-ruled in Chapman v. Blisset, Ca. Temp. Talb. 145. It would be no stretch of construction to say that this was a gift to Mrs. Robinson, in case there was no person to take preferably under the appointment: but, even against the intent of the party, where the first limitation fails, the second shall take place. Mr. Graham contends, that even if the provision had been explicit to children and grandchildren, it would have been bad but he cited no case to support this position. He referred to the case of Humberston v. Humberston, 1 Wms. 332, where the limitations were to persons unborn but this power does not tie up the estate, it only makes Dunn tenant in fee, to dispose of it as he pleases, only among particular objects; and the estate is not kept so long unalienable as it might have been by a common settlement.

Lord Chancellor [Thurlow]. This bill proceeds on the idea, that the estate has not been well conveyed by the plaintiff's brother, and claims an equity to redeem. It contains two points: the first, relative to the execution of the power; the other, as to the question of election. If the whole had stood on the former point, I should have thought it cognizable at law: but the last clause of the will rendered it absolutely necessary to come into this court, and that the first point should be disposed of here. But it would be improper to decide that point in a court of equity, unless it could be upon clear and satisfactory grounds. Exclusive of the case of Cavendish v. Cavendish, which I could not follow without knowing it more correctly than I do, or contradict without more consideration than I have been able to give it, I know of no other case where it has been decided, that an appointment to grandchildren is a good execution of a [30] power to divide among children. If that case be so decided, I believe it is the first case to that purpose. On the first point, a question arises too important to the parties for me to decide, without more consideration; especially sitting in a court of equity; the question is, whether the limitation is good to the child, with a further limitation over to her children; which brings it to the same case as Adams v. Adams, where the children of the child were expressly mentioned. There has been no case decided, in which it has been held that the word children has been construed to extend to grandchildren; it must therefore turn upon some circumstance in the will, to shew the word children is to be taken in this unnatural sense. Such a gift has never been considered as a part of the bounty to the children. All the cases, I can recollect, appear to have been decided the contrary way, that the children take a part of the estate as purchasers. I take the rule to be, that the parts of the estate must vest in the persons who are the objects of the power. The next question is, supposing the intent to appear, that the limitation should be such, whether the limitation, in itself, would be legal. In the Duchess of Marlborough's case (3 Bro. P. C. 232, octavo edit. and 5 vol. 592, folio edit.), the power was granted in perpetuum; it was to defeat estates, and revest them, and tended to an absolute perpetuity in sæcula sæculorum. What is a perpetuity, but the extending the estate beyond a life in being, and twenty-one years after? That would have been the effect of this if done by devise; the question therefore is, whether by the intervention of a power, a grantor may extend the estate, beyond the rules of law, to what the law terms a perpetuity. A man may appoint 100 or 1000 trustees, and that the survivor of them shall appoint a life-estate, that would [not] be within the line of a perpetuity. (See this observation referred to, and approved as unquestionable law by the Ch. Bar, and by Lord Eldon, C., in Thelusson v. Woodford, 11 Ves. 136, 137, 145.) Then the question is, whether, such an illegal estate being interposed, it shall not be considered as a nullity, and the next estate be brought forward, and attached to the estate for life. The cases seem to support this doctrine; but not so clearly as for it not to deserve further consideration. Void uses have been held to support remainders, in order to serve the intention in wills; but the law has not carried the same construction in deeds. This is a will; the object of it is to execute a power it must have therefore the favourable construction of a will, and you must consider the testator as intending, if the first use was bad, that the subsequent limitation should take place; though [31] this seems an extraordinary intent to attribute to him. There is a case of Nichol v. Nichol, which was sent by this court to the Common Pleas, and returned with a certificate: it was to the second son for life, and, after his decease, or in case he should become eldest, then to his second son, and his heirs-male. It was contended,