has power to disturb the settlement only as to B., and I find him by will confirming the settlement and then devising the estates, what must be the effect to be given under such circumstances to the disposition: it must be to make the confirmation apply to the estate the settlement of which could not be disturbed, and to give effect to the devise as to that estate of which the testator had power to dispose. In this way effect may be here given to every word in the will, and I construe the will and codicil just as if strangers only were the subjects of them.

His Lordship after commenting on other parts of the will, and showing that they were entirely consistent with the view of the case above taken, added,-With all respect for the learned Judge from whom this is an appeal, I entertain no doubt upon the case. I think the exception should have been allowed, and that there must be a decree that the will and codicil were a valid execution of the power of appointment over the estates in the trustees. The LORDS JUSTICES concur in the judgment I have given. The costs will come out of the estate.

LAKE

V.

CURRIE.

SHEFFIELD v. THE EARL OF COVENTRY (1).

(2 D. M. & G. 551–562; S. C. 22 L. J. Ch. 498; 17 Jur. 289; 1 W. R. 58; 20

L. T. O. S. 193.)

A testator by his will directed his trustees to purchase a sum of Bank Annuities, upon trust to pay the dividends to his son John for life with a proviso against alienation, and he then provided that in case his said son should marry with the consent of his trustees, the Annuities should subject to the life interest of his son be settled for the benefit of any woman with whom his son should intermarry and the issue of such marriage in such manner as should be agreed upon with the concurrence of his trustees, and subject to the trusts to be declared in any settlement to be made on the marriage of his son or in case none should be declared then the Annuities should go as his son should by will appoint, and the testator also provided that in case his son should die unmarried or having been married without leaving issue and without having exercised the power of appointment thereby given to him then a moiety of the Annuities should go to persons named in the will: the son died without ever having been married, and having by his will appointed a portion of the Annuities to two of his brothers: Held, sustaining this appointment, that in the events which had happened the son had a power of appointment over the Annuities.

THIS was an appeal by the Honourable Thomas Henry Coventry and the Honourable William James Coventry, two of the defendants in the suit which was instituted for the administration of the estate of George, Earl of Coventry, who died on the 26th March, 1831 from an order of the MASTER OF THE ROLLS, dated the 2nd August, (1) See Doutty v. Laver, 89 R. R. 712 (14 Jur. 188).

V.

SHEFFIELD 1852, made on a petition presented in the cause by the plaintiffs and the present appellants. The following are the circumstances under which the question now brought on for decision arose.

THE

EARL OF COVENTRY.

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George, Earl of Coventry, made his will, bearing date the 8th July, 1818, whereby, after reciting among other things the reason for making his son John's portion larger than that of the other younger children, he gave and bequeathed the general residue of his personal estate and effects to the plaintiffs, Sir Robert Sheffield and Henry Pitches Boyce, their executors administrators and assigns, upon trust to appropriate so much thereof as should be requisite for that purpose in the purchase of 20,000l. 41. per cent. Bank Annuities, in trust for his daughters Lady Barbara Coventry and Lady Sophia Gresley respectively and their respective issue in manner therein mentioned; *and upon further trust, after the application of part thereof as therein before directed, to appropriate and set apart so much thereof as would be sufficient to purchase the further sum of 20,000l. 41. per cent. Bank Annuities, and stand and be possessed of and interested in the same Bank Annuities when so purchased as aforesaid, and receive the dividends interest and annual produce thereof, and pay apply and dispose of the same during the life of his son John Coventry to such person or persons and for such intents and purposes and in such manner as his said son should from time to time by any draft note order or writing signed by him, but not by way of anticipation, direct and appoint, and in default of or subject to any such direction or appointment pay such interest dividends and annual produce into the proper hands of his said son for his sole use and benefit during his lifetime subject to the proviso next thereinafter contained, (being a proviso against alienation of the provisions thereby intended to be made for his said son or any part thereof). And the testator further declared his will as follows: "Provided also and my will is that in case my said son shall at any time hereafter marry with the consent of my said trustees or the trustee for the time being of this my will, then I direct that the said last-mentioned sum of 20,000l. 41. per cent. Bank Annuities, subject nevertheless to the life interest of my said son of and in the dividends interest and yearly proceeds thereof, shall be settled for the benefit of any woman with whom my said son shall or may intermarry and the issue of such marriage in such manner as shall be agreed upon with the concurrence of my said trustees or trustee for the time being, and subject to the trusts to be declared of and

concerning the said Bank Annuities in any settlement to be made on the marriage of my said son or in case none shall be declared then I direct that the same Bank Annuities shall go unto such person or persons for such uses estates and interest and in such manner in all respects as my said son shall by his last will and testament or any codicil or codicils thereto to be signed and published by him in the presence of and attested by two witnesses direct or appoint and be paid assigned or transferred accordingly: Provided also and my will is that in case my said son shall die unmarried or having been married without leaving issue and without having exercised the power of appointment I have hereby given to him, then I direct that the trustees or trustee for the time being of this my will do and shall stand possessed of and interested in the sum of 10,000l. 11. per cent. Bank Annuities, part of the said sum of 20,000l. like Annuities, in trust for all my children now born or hereafter to be born, other than and except my son Lord Deerhurst, who shall be living at the time of the decease of my said son John and the issue of any of my children who shall happen to die in his lifetime leaving issue, to be divided between or amongst them in equal proportions share and share alike if more than one, save only and except that the issue of any deceased child shall take between them such part or share thereof only as his her or their father or mother if living would have taken "-with a declaration as to the time of vesting of the shares in such children. sons and daughters respectively. And as to for and concerning the surplus of the residue of his said personal estate, after making such appropriations thereout as were therein before directed, the said testator directed that the trustees or trustee for the time being of his will should stand and be possessed of and interested in the same, upon trust that they or the survivor of them his executors administrators or assigns did and should appropriate and set apart so much of such last-mentioned surplus as would be sufficient to create a fund for the payment of certain annuities thereinbefore *given to his wife Lady Coventry and his sister Lady Ann Margaret Wright (one of these annuities lapsed by the death of the annuitant in the testator's lifetime, and the other had since determined): and after making the several appropriations aforesaid, upon further trust that his said trustees or the survivor of them his executors administrators or assigns should stand possessed of and interested in such surplus, and also from and after the decease of both or either of the said annuitants of and in the fund so to be appropriated to answer and

SHEFFIELD

v.

THE

EARL OF COVENTRY.

[*553]

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THE

EARL OF COVENTRY.

SHEFFIELD satisfy the same, in trust for his children, except his son Lord Deerhurst and his said son John, and the issue of such children in such shares and proportions and to vest and become transmissible at such ages or times and to be subject to such benefit of accruer and survivorship as he had therein before directed with respect to the share or shares of such children and their issue of and in the said sum of 10,000l. 4l. per cent. Bank Annuities therein before directed to be transferred to them from and after the decease of his said son John.

[*555]

After the death of the testator and the institution of the present suit, the sum of 20,000l. 41. per cent. Annuities was purchased and carried over in trust in the cause, to an account entitled "The Account of the Honourable John Coventry," and the interest and dividends of this fund, subsequently converted by Act of Parliament first into Annuities of 31. 10s. per cent. and afterwards into 31. 5s. per cent. Reduced Annuities, were paid to John Coventry down to the time of his death.

John Coventry died on the 24th May, 1852, without ever having been married, but having made his will, dated the 28th October, 1844, whereby, after reciting that he was entitled under the will of his late father to the sum of 20,000l. 31. 10s. per Cents. with a power of disposing of the same by will, but subject to a proviso that in case of his dying unmarried 10,000l. part thereof should be paid to his brothers and sisters equally, he gave and appointed the sum of 4,000l., part of that portion of the said stock over which he had power, to his brother the Honourable William James Coventry for his own use and benefit, without prejudice to his interest in the remaining portion of the said stock: and he gave and appointed all the residue and remainder of the said portion of stock unto his brother Thomas Henry Coventry for his own use and benefit.

The petition on which the order now appealed from was made was then presented, praying for the transfer to the present appellants of the portions of the 20,000l. Bank 31. 58. per cent. Annuities appointed to them by the will of John Coventry. This petition came on to be heard before the Master of the Rolls on the 2nd August, 1852, when his Honour refused to direct the transfer prayed, and made an order, declaring that, in the events that had happened, John Coventry had no power of appointment under the testator's will over any part of the 20,000l. 31. 5s. per cent. Annuities. The object of the present appeal was to obtain the reversal of this declaration.

t.

THE EARL OF COVENTRY.

Mr. Rolt, Mr. Elmsley, and Mr. Leigh Pemberton, for the appeal. SHEFFIELD They submitted that John Coventry had the power which he had exercised in favour of the appellants, the very event provided for by his father's will having happened, namely, no trust of the fund being declared; that the proviso as to marriage with consent and trusts to be declared in that case was not the only matter referred to by the words, "or in case none shall be declared," *but that the event of dying unmarried was also reached by them; and on the Lord Justice KNIGHT BRUCE referring to the case of Brown v. Higgs (1) as being very similar to the present, they pointed out. that in that instance there was a power only, whereas here it was a direct trust.

Mr. Bethell and Mr. W. M. James, for one of the residuary legatees of the testator, and in support of the decision of the MASTER OF THE ROLLS.

They contended that the power of appointment was intended to be given only in the event of John Coventry marrying with consent of the trustees and no trusts being in that particular case declared ; and that to say that it was to apply to the case of no trusts being declared generally, was inconsistent with the clause giving 10,000l. to the testator's other children in the event of John Coventry dying unmarried. In answer to a question put by the Lord Justice Lord CRANWORTH as to what would have been the effect of the son marrying without the consent of the trustees, they submitted that then the son would not have had any power to appoint.

Mr. Follett and Mr. Osborne appeared for other parties in the same interest, and supported the order appealed from.

Mr. Rolt replied.

THE LORD CHANCELLOR:

In this case it seems very clear that the testator intended as regards the 20,000l. to make it a portion for his younger son John, with certain checks in consequence *as one may suppose of want of providence in that person; for, although he gives him a life interest, he carefully provides that he shall not have a power to anticipate. With the same view, and there being no absolute gift of the property after the death of John, he makes the following provision in case he marries with consent,-" Provided also and my will is that in case my said son shall at any time hereafter (1) 4 R. R. 323 (8 Ves. 561, 570).

R.R.-VOL. XCV.

15

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