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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Burrough v Philcox [1840] EWHC Ch J62 (25 November 1840) URL: http://www.bailii.org/ew/cases/EWHC/Ch/1840/J62.html Cite as: (1840) 5 My & Cr 72, 41 ER 299, [1840] EWHC Ch J62

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IN THE HIGH COURT OF CHANCERY

		25 November, 1840

John Walton, by his will dated the 29th of February 1794, and executed and attested so as to pass freehold estates, gave to his daughter, Ann Fox Walton, the interest or dividends payable on £6000 Reduced 3 per cent. Bank annuities, for her life, for her separate use; and declared it to be his will that such £6000 annuities should continue and remain standing as they then were in his (the testator's) name, "until all the following contingencies are completed." He then declared that -on the decease of his daughter, he gave the interest or dividends of the above mentioned annuities towards maintaining, bringing up, and educating all her lawful children, until the youngest should be twenty-one years of age; then for the £6000 annuities to be equally divided amongst all her children. But if his daughter should die without a child or children, or they should all die before they attained the age of twenty-one years and unmarried, then he gave the interest or dividends, as they became due and payable, unto his son Thomas Walton for his life; and at his decease: he gave the foregoing interest or dividends towards maintaining, bringing up, and educating all his lawful children, until the youngest of them should be twenty-one years old; then for the £6000 Reduced 3 per cent. Bank annuities to be equally divided amongst them; but if his daughter and son should both of them die without leaving lawful issue, "then for it to be disposed of as hereinafter." The remainder of what property he then had or might be possessed of at the time of his decease, in the said Reduced 3 per cent. Bank annuities, he gave to his son Thomas Walton. He gave to his friends Mr. Dernger, Mr. James Roby, and Mr. William Walmsley, and their heirs in trust, all his estate at East Horsley and Effingham, in Surrey, and all his estate at Cam, in Gloucestershire, and all his estate at Scotforth, near Lancaster, and a close of land near Derby, "for the following uses: My intention is that my said trustees shall have no further trouble in it than to prevent the before-mentioned estates being alienated before the following contingencies are completed. I give the rents and the profits of the wood that is of a proper age and fit for felling for timber, of all my said estates, unto my son Thomas Walton for his natural life, and at his decease, unto any eldest son he may have lawfully born; and if his eldest should die without a son, then the estates should go to his second lawful son; after his decease, to his eldest lawful son; but if his second son should die without a lawful son, then for the estates to descend gradually down to the youngest son; and if he should die without a son, then I give all the aforementioned estates unto my son's eldest daughter for her natural life; and if she has a lawful son, I give all the said estates unto him, on condition that he takes the surname of Walton. But if my son should die without leaving lawful issue, or such issue should all die without leaving lawful issue, then I give all the aforementioned estates unto my daughter, Ann Fox Walton, for her natural life, she receiving the rents and profits thereof for her own use, and not to be subject to the control of any husband she might have, and not to be liable to the payment of any of his debts, and her receipt alone to be a sufficient discharge for such payment; and at the death of my said daughter, I give the said estates unto any lawful son she may have, on condition that he takes the surname of Walton, or to any grandson my daughter may have, on condition that he takes the surname of Walton. But in case my son and daughter should both of them die without leaving lawful issue, then for the said estates to be disposed of as shall be hereinafter mentioned (that is to say), the longest liver of my two children shall have power, by a will, properly attested, in writing, to dispose of all my real and personal estates amongst my nephews and nieces or their children, either all to one of them, or to as many of them as my surviving child shall think proper. I give unto my above-mentioned three trustees the sum of ten guineas unto each of them for their trouble. I give unto my daughter, Ann Fox Walton, all my household furniture, plate, linen, china, glass, and books. I do hereby appoint my son Thomas Walton and my daughter Ann Fox Walton, if she should be unmarried at the time of my decease, to be joint executor and executrix of this my last will and testament. Wrote with my own hand this 29th day of January, in the year 1794.

J. WALTON."

The testator died in the course of the year 1794, leaving Thomas Walton his only son and heir at law, and Ann Fox Walton his only daughter. They were his only children living at the date of the will; and they proved his will, and paid his funeral and testamentary expenses, debts, and pecuniary legacies, without having recourse to the £6000 stock, which remained standing in the testator's name until the decease of Ann Fox Walton.

Thomas Walton entered into possession of the real estates devised by the testator's will, and continued in such possession until the time of his death, having, as to the Scotforth estate, suffered a recovery in the Court of Common Pleas at Lancaster. By his will, dated the 15th of April 1813, he gave the Scotforth estate to his wife Mary Walton, for her life, with remainder to his sister, Ann Fox Walton, in fee; and, after giving to his sister five guineas for a ring, he gave all the residue of his personal estate to his wife, and appointed her sole executrix. He died in February 1825. Upon his death, his widow entered into possession of the estate at Scotforth, and she still continued in such possession; and his sister, Ann Fox Walton, entered into possession of the other estates, and continued in such possession until the time of her death: and she also, during her life, received the dividends upon the £6000 stock.

Ann Fox Walton, by her will, dated the 4th of October 1828, gave her reversion in fee in the Scotforth estate under her brother's will to her kinsman William Walton Lake for life, with remainder to his eldest son William Walton Lake the younger, in fee; and gave to John Walton Hull, described as one of the sons of John and Mary Hull of Castle Donington, in Leicestershire, and his heirs, the before mentioned close of land near Derby; and, after giving some pecuniary legacies, she bequeathed unto and amongst the children and grandchildren of her late kinswoman, Mrs. Ann Hull of Castle Donington, except her two grandsons Thomas Hull and John Walton Hull, the sum of £1000 stock Reduced 3 per cent. Bank annuities, part of the monies then standing in the name of her (the testatrix's) late father, John Walton, equally to be divided between them, share and share alike; and after directing that all the legacies and bequests therein before mentioned should be paid and transferred to the legatees within twelve months after her decease, she bequeathed to her kinswoman Sarah Caroline Walmsley, the daughter of William and Sarah Walmsley, formerly of Chelsea, for her life, the dividends of £2000 stock Reduced 3 per cent. Bank annuities, other part of the monies then standing in the name of her late father; and she bequeathed to Anna Philcox and Robert Hillier the sum of £2000 stock Reduced 3 per cent. Bank annuities, other part of the monies then standing in the name of her late father, upon certain trusts for the benefit of John Walton Hull and his children; but if he should die under twenty-four, and without leaving any child or children (an event which happened), then she bequeathed the same stock to Thomas Hull; and she gave to Joseph Burrough and Abel Peyton all her real estate at East Horsley and Effingham, and at Cam, to the use of Thomas Hull for life, with remainder to Burrough and Peyton during his life, as trustees to preserve contingent remainders; with remainder to his first and other sons successively, in tail male; with remainder to the use of John Walton Hull for life; with remainder to his first and other sons, successively, in tail male; with remainder to the use of the youngest son, living at the time of her (the testatrix's) decease, of her kinsman the Rev. John Roby of Congerstone, in Leicestershire, and the heirs and assigns of such youngest son for ever; and she bequeathed to Thomas Hull the sum of ~1000 stock Reduced 3 per cent. annuities, being part of the monies then standing in the name of her late father, and £~2000 New 4 per cent. annuities standing in her own name. And she bequeathed to Burrough and Peyton all the residue of her personal estate, upon trust to convert it into money, and to pay the produce of such conversion to Thomas Hull, on his attaining the age of twenty-four years, to whom she bequeathed the same accordingly, with a declaration that he should not be entitled to nor receive any or either of the legacies or bequests thereinbefore mentioned until he attained the full age of twenty-four years; but that all and every of the same legacies and bequests should remain invested in the stocks or funds thereinbefore mentioned at interest until he should attain that age; and with power to Burrough and Peyton to apply so much of the dividends, interests, rents, issues, and profits as they might consider necessary and proper for his education, clothing, bringing up, and advancement in the world, and to accumulate the remainder till he should attain twenty-four, and then to pay the same to him, together with the principal; and in case he should die before attaining twenty-four, and should leave any child or children, then the testatrix bequeathed all the same legacies and bequests to such children or child, equally to be divided between them, if more than one; but in case he should die before twenty-four, and without issue, she bequeathed the same, in manner therein mentioned, for the benefit of John Walton Hull and his children; and in case he should die before attaining twenty-four, and without issue, then unto and amongst all the children and grandchildren of her before-mentioned late kinswoman, Mrs. Ann Hull, equally to be divided between them; and she appointed Anna Philcox and Robert Hillier her executrix and executor.

Thomas Walton and Ann Fox Walton both died without issue. The John Walton Hull mentioned in Ann Fox Walton's will died in her lifetime, an infant, of the age of three years; but another John Walton Hull (a Defendant) was born between the date of her will and the time of her death; and the testatrix herself died on the 30th of July 1831, without having been married, leaving Joseph Osborne, Thomas Goodwin, Sarah Caroline Walmsley, and William Walton Lake her co-heirs at law, and also co-heirs of Thomas Walton and the testator John Walton. Anna Philcox and Robert Hillier proved her will, and Hillier afterwards died.

At the time of the death of Ann Fox Walton, one nephew and one niece of the testator John Walton, and eleven children of deceased nephews and nieces were living. The nephew was William Walton Lake, and the niece was Susannah Floyd Farquhar; and the eleven children of nephews and nieces were Benjamin Hull and Elizabeth Lacey, children of Ann Hull, who had been a niece of the testator; and Joseph Osborne, John Shaw, Mary Cookes, Ann Watson, Sarah Caroline Walmsley, William Walton Lake the younger, Susannah Lake, afterwards Brown, James Phillips Lake, and John Farquhar.

In November 1832, Joseph Osborne died intestate, leaving Thomas Goodwin, Sarah Caroline Walmsley, and William Walton Lake his co-heirs at law; but no person became his legal personal representative until after the institution of the original suit.

Mary Walton, the widow of Thomas Walton, by deed dated the 8th of April 1833, assigned to Burrough and Peyton what was described as all Thomas Walton's moiety of the £6000 stock, and the dividends of it since Ann Fox Walton's death, so far as she (Mary Walton) had any interest therein, upon the trusts upon which they would have held the same, in case Ann Fox Walton had become the absolute owner of the fund, discharged of all right or interest of Thomas Walton or of herself (Mary Walton) as his executrix and residuary legatee, either by reason that he was one of the testator's next of kin, or that there was any defect in Ann Fox Walton's will, and so that, as to legacies intended to be given by way of appointment, but which had lapsed, the lapse might be for the benefit of Ann Fox Walton's residuary legatees.

Two children and six grandchildren of Ann Hull were living at the time of Ann Fox Walton's death. The two children were Benjamin Hull and Elizabeth Lacey; and the six grandchildren were the infant Plaintiff Thomas Hull, and the Defendants Eunice Draper and Richard Lacey (children of Elizabeth Lacey), Alice Hull (afterwards Reeves), Eunice Hull, and John Walton Hull; and no grandchild of Ann Hull had been born since Ann Fox Walton's death.

The Defendant, Thomas Roby, was the youngest son of John Roby of Congerstone, living at Ann Fox Walton's death.

Dernger and Walmsley, two of the trustees named in the will of the testator John Walton, died in the lifetime of their co-trustee James Roby, and he died in September 1822, intestate as to John Walton's trust estates; and it was not known at his death who was his heir. Sarah Caroline Walmsley resided in France; William Walton Lake, and William Walton Lake the younger, Susannah Lake, and James Phillips Lake resided in America; and Susannah Floyd Farquhar and John Farquhar resided in Scotland.

Shortly after Ann Fox Walton's death, Burrough and Peyton entered into the receipt of the rents of the estates at East Horsley, Eflingham, and Cam, and the close of land near Derby.

The original bill in this cause was filed in the year 1833, praying that the trusts of the wills of John Walton and Ann Fox Walton might be carried into execution under the decree of the Court, and that the interests of all parties in the £6000 stock, and in the real estates of John Walton, might be ascertained and declared.

The Defendants, Sarah Caroline Walmsley, William Walton Lake, William Walton Lake the younger, Susannah Lake, James Phillips Lake, Susannah Floyd Farquhar, and John Farquhar, were out of the jurisdiction, but all the other Defendants, appeared and answered the bill, and Sarah Caroline Walmsley having afterwards come within the jurisdiction, appeared to the bill, but died intestate before answering it, leaving Thomas Goodwin and William Walton Lake, who was then still out of the jurisdiction, her co-heirs at law; and on the 13th of May 1834, the Plaintiffs in the original suit filed a bill of revivor against Thomas Goodwin and against Ann Hale, as Sarah Caroline Walmsley's personal representative; and Ann Hale afterwards answered the original bill, and the usual order of revivor was made against her and against Thomas Goodwin.

Before the cause was heard, Thomas Goodwin died intestate, leaving John Goodwin his heir, who also became his legal personal representative, and against whom the suit was revived in the usual manner.

In the month of October 1834 William Walton Lake the younger died intestate, leaving his father, W. W. Lake the elder, his heir at law.

The cause was heard before the Vice-Chancellor on the 11th of March 1836, when a decree was made, directing inquiries as to the nephews and nieces, and children of nephews and nieces, of the testator, John Walton, living at the death of the survivor of Thomas Walton and Ann Fox Walton, and as to who was the youngest son of John Roby of Congerstone living at the decease of Ann Fox Walton; and all further directions were reserved.

Under an order in the cause, dated the 9th of June 1836, the £6000 stock, which had up to that time continued standing in the name of the testator John Walton, and the dividends accrued upon it since Ann Fox Walton's death, after a certain deduction for costs, were brought into Court.

On the 7th of February 1837 the Master made his report, by which, in answer to the inquiries directed at the hearing, he found such of the facts above mentioned as are applicable to those enquiries. On the 1st of December 1837 Thomas Hull died, under twenty-four and under twenty-one, but of the age of twenty years, having made a will on the 28th of December 1835, by which he appointed Joseph Sowter his executor, who proved his will.

William Walton Lake took out administration to Joseph Osborne, and to William Walton Lake the younger.

On the 22d of March 1838 the bill in the suit, Lacey v. Philcox, was filed by Benjamin Lacey and Elizabeth his wife, who was a child of the testator's niece Ann Hull, against all the parties to the first suit, and the representatives of such as were dead, as a bill of revivor and supplement to supply the defects which the various deaths had occasioned.

On the 23d of November 1838 a decree was made in the cause of Lacey v. Philcox, by which the Plaintiffs were declared entitled to the benefit of the former suits and proceedings; and the Master was directed to inquire whether the son and daughter of John Walton the testator both died without leaving lawful issue, and whether John Walton Hull, the devisee and legatee named in Ann Fox Walton's will, died in her lifetime without issue, and whether Thomas Hull, the late Plaintiff in the former suit, died without issue, and what was his age at the time of his death, and whether there were then any, and, if any, what legal personal representatives of Joseph Osborne and William Walton Lake the younger, and what children and grandchildren of Ann Hull, other than the late Plaintiff Thomas Hull, were living at the decease of Ann Fox Walton, and whether any grandchildren of Ann Hull were born after Ann Fox Walton's death, and in the lifetime of Thomas Hull, and whether any or either, and which, of the children or grandchildren of the said Ann Hull, other than as aforesaid, who were living at the decease of the testatrix, or any or either, and which of the children or grandchildren of the said Ann Hull since born, had died, and, if so, who were their legal personal representatives; and whether the Defendants William Brown and Susannah his wife, Susannah Floyd Farquhar and John Farquhar, were living out of the jurisdiction; and it was ordered that so much of the £6000 Reduced annuities as would be sufficient to raise the amount of certain costs, charges, and expenses, should be sold, and applied in payment of such costs, charges, and expenses; and further directions and subsequent costs were reserved.

On the 6th of March 1839 the Master made his report in pursuance of this decree, finding in answer to the enquiries directed by it, such of the facts above mentioned as are applicable to those enquiries, and finding that the Defendant William Brown, husband of Susan (not Susannah) Brown, was dead; and that Susan Brown was then resident at Castle Donington; and that the Defendants Susannah Floyd Farquhar and John Farquhar were residing in Scotland, and out of the jurisdiction of the Court.

The suits now came on to be heard on further directions.

Mr. Richards and Mr. John Baily, Mr. Wigram and Mr. Kenyon Parker, Mr. Skirrow and Mr. Smythe, Mr. Tinney and Mr. Shadwell, and Mr. Cooper, for different parties claiming under Ann Fox Walton's will, contended that no trust was created by John Walton's will, in favour of his nephews and nieces, and children of nephews and nieces living at the death of the survivor of his son and daughter, but that a mere power of appointment amongst them was given to such survivor: that the only cases in which words of power had been held to create a trust were cases in which the whole interest had been given by the will to the donee of the power; in which cases there would have been an absurdity in construing the words of power as creating anything less than a trust; for the party having an absolute interest might, of course, dispose of that interest as he thought fit, without words of power to enable him so to do: That it was clear that the testator in this case knew how to create a trust, from the manner in which he had given the property to a set of trustees: That in the case of Harding v. Glyn (1 Atk. 469), which would be relied on on the other side, both the gift of the absolute interest and the use of precatory words, amounting to the creation of a trust, concurred; that Brown v. Higgs (4 Ves. 708, 5 Ves. 495, 8 Ves. 561), which would also be much insisted upon, clearly rested upon Harding v. Glyn, and was a case in which Lord Eldon felt great difficulty, as appeared from Whitmore v. Trelawny (6 Ves. 129); and that the case of The Duke of Marlborough v. Godolphin (2 Ves. sen. 61), in which, notwithstanding words of desire on the part of the testator, it was held that a mere power was given, was inconsistent with Harding v. Glyn, and was so felt to be by Lord Eldon: That there was an observation of Sir W. Grant in Longmore v. Broom (7 Ves. 124) which put Brown v. Higgs on its right footing, viz., that a gift to A. or B. was void for uncertainty, but that a gift to A. or B. at the discretion of C. is a valid devise, for nothing is wanting but the exercise of the discretion on the part of C.: That in Brown v. Higgs Lord Alvanley construed "or" as "and," but that that could not be done in this case: That the only two cases on this subject, subsequent to Brown v. Higgs, were Grant v. Lynam (4 Russ. 292), and Brown v. Pocock (6 Sim. 257), in the former of which the supposed power had been actually exercised, and the only question was, whether it had been exercised in favour of the right objects; and in the latter, a case which arose upon petition only, the fund in question had been derived from the testatrix's property generally, and the consequence of a different determination would have been that there would be an intestacy, which the Court is always anxious to avoid; and the supposed power, being required to be exercised in favour of all the children, was much more in the nature of a trust than an exclusive power of selection, such as that given in the present case.

They also relied on Bull v. Vardy (1 Ves. jun. 270), and Sale v. Moore (1 Sim. 534); and referred to Grieveson v. Kirsopp (2 Keen, 653), Moggridge v. Thackwell (1 Ves. jun. 464), Harland v. Trigg (1 Bro. C. C. 142), and Countess of Bridgewater v. Duke of Bolton (Salk. 236), and the cases on this subject collected in Sugden on Powers (vol. ii. p. 173 et seq.).

Mr. Hodgson (in the absence of Mr. Stuart), contra, for parties claiming as objects of the power, argued that the interest taken by Ann Fox Walton was a species of ownership which might be made the subject of a trust, and had been made the subject of a trust: That there might well be a limit of a power as of an estate; that the testator's words "then to be disposed of as hereinafter mentioned" were imperative, and strongly marked his intention; and that, in reality, there was no substantial difference between the expressions he had used, and a declaration that the property should be held in trust for such of his nephews and nieces and children of his nephews and nieces as the survivor of his two children should appoint, which would, undoubtedly, create a trust: That the testator would not have vested the legal fee-simple of the real estate in trustees, if he intended that, after a certain series of limitations ending in a power, the estate should descend to an heir at law: that the construction contended for on the other side would strike out a great part of the testator's will: That as the gift in Ann Fox Walton's will to the children and grandchildren of Ann Hull the testator's niece was bad, so far as the grandchildren were concerned, the Court would hold it void altogether; for it could not distinguish the aliquot shares given to children and grandchildren. He relied upon Harding v. Glyn, Brown v. Higgs, and Witts v. Boddington (3 Bro. C. C. 95), as stated from the registrar's book by Lord Alvanley in Brown v. Higgs (see 5 Ves. 503), Venables v. Morris (7 T. R. 342, 438), Brown v. Pocock (6 Sim. 257), and Griereson v. Kirsopp (2 Keen, 655). He submitted that it was a fallacious mode of expression to say, as had been said in speaking of Brown v. Higgs, that the Court sometimes read "or" as "and;" it should rather be said, the Court sometimes considered "or" as being used in the conjunctive. He said that the discrepancy between the cases of Harding v. Glyn and The Duke of Marlborough v. Lord Godolphin had been disposed of by Lord Eldon, in his observations towards the close of his judgment in Brown v. Higgs,

Mr. Bethell, Mr. Loftus Lowndes, Mr. Sharpe, Mr. Reynolds, for other parties in the same interest.

Mr. Norton for the trustees, Burrough and Peyton.

The cases of Grant v. Lynam (4 Russ. 292), Walsh v. Wallinger (2 Russ. & Myl. 78), Birch v. Wade (3 V. & B. 198), Forbes v. Ball (3 Mer. 437), and Kemp v. Kemp, (5 Ves. 849), were referred to, in addition to those above mentioned.

Mr. Richards, in reply.

It was agreed that no question of election, as arising upon Ann Fox Walton's will, should, at present, be discussed.

Nov. 25. THE LORD CHANCELLOR [Cottenham]. The testator directed the dividends of £6000 stock, then standing in his name, to be paid to his daughter for life, and he directed that the stock should remain in his name, "until the following contingences are completed." After the death of his daughter, he disposed of the stock for the benefit of her children, and if she should not leave children, he gave the dividends to his son, for life, and, after his decease, the principal to his children; "but if my daughter and son should both of them die without leaving lawful issue, then for it to be disposed of as hereinafter." He gave to trustees and their heirs certain estates, describing them, "for the following uses. My intention is, that my said trustees shall have no further trouble in it than to prevent the aforementioned estates being alienated before the following contingencies are completed." He then gave the rents to his son for life, and, after his death, to his son's sons and daughters, in terms which, I think, would have given to those sons and daughters estates tail, and, upon failure of such issue of his son, he gave his estates to his daughter Ann Fox Walton, for life, and, after her death, to her son, if any; " but in case my son and daughter should both of them die without leaving lawful issue, then for the said estates to be disposed of as shall be hereinafter mentioned, that is to say, the longest liver of my two children shall have power, by a will, properly attested, in writing, to dispose of all my real and personal estates amongst my nephews and nieces or their children, either all to one of them, or to as many of them as my surviving child shall think proper."

The question is, whether these nephews and nieces and their children take any interest in the property, independently of the power; that is, whether the power given to the survivor of the son and daughter is a mere power, and the interests of the nephews and nieces and their children were, therefore, to depend upon the exercise of it, or whether there was a gift to them, subject only to the power of selection given to the survivor of the son and daughter.

Before I refer to the authorities, it will be proper to consider what appears, upon the will, to have been the testator's intention, in the event which happened, of his son and daughter dying without children; and first, as to the personal estate, of which the capital of the £6000 stock would, in that event, form part, it was to remain in trust until the contingencies mentioned in his will should have happened; that is, at all events, until the death of the survivor of the son and daughter, and, in my construction of the will, until the interests of the nephews and nieces and their children should have been ascertained; but if no interest were to arise in such parties, except by the execution of the power, then all such stock and other personal estate, from the moment of the testator's death, was undisposed of, if such power should not be executed, and, subject to that contingency, became the property of the testator's son and daughter, as his next of kin; so that they might defeat the interests of the nephews and nieces and their children, by agreement during their joint lives, and giving to the survivor, as to all such survivor's share in the personalty in which he or she would have an absolute property, a power to appoint to and amongst a particular class. The observation with respect to the land is still stronger; the devise to trustees is "to prevent the lands being alienated before the following contingencies are completed," one of which is the creating or ascertaining the estates and interests of the nephews and nieces and their children; whereas, if these parties were to take no estates or interests, except through the execution of the power, the son, as heir, if he survived his sister, would, upon failure of their issue, be absolute owner of the property, as would the sister surviving, unless the son had disposed of his fee, subject to the execution of the power by the sister. There is, therefore, scarcely any supposable event in which the giving this power would, upon that supposition, give to the donee any dominion over the property, or be at all likely to secure any benefit to the declared objects of it. It would be unfortunate if the authorities made it necessary for me to put a construction upon this will leading to such results.

If I had to decide this case with no other authority to guide me but The Duke of Marlborough v. Lord Godolphin (2 Ves. sen. 61), I should have great difficulty in giving effect to what I cannot doubt having been the testator's intention; but, highly as I venerate the character of Lord Hardwicke as a lawyer, I am not only at liberty, in weighing that authority, to consider how it has been dealt with in subsequent cases, but I am bound so to do. One thing, however, may be observed upon this case. By the codicil, as stated by Lord Alvanley, from the registrar's book, in Brown v. Higgs (see 5 Ves. 506), the legacy was given to the executors as trustees, so that the mother of the children had only an estate for life, the fund itself being in trustees: but it does not appear to have occurred to Lord Hardwicke that this was of any importance in putting a construction upon the will, respecting interests being or not being given to the children, independently of the power. Harding v. Glyn (1 Atk. 469, and stated from the registrar's book, 5 Ves. 501) was a case in which there was a gift, to the donee of the power, of the property itself, with a desire, as to the mode of disposing of it, amounting to a trust; but that declaration of trust only ascertained the class amongst which it was to be exercised; it was "amongst such of my own relations as she shall think most deserving and approve of;" and yet Lord Hardwicke, at the conclusion of his judgment in The Duke of Marlborough v. Lord Godolphin (2 Ves. sen. 61, see p. 83), is made to say, that in all the cases cited for the Defendants, the bequest amounted to a legacy to all the children, so that the proportions only were left to the appointor.

In Witts v. Boddington (3.Bro. C. C. 95, and stated from the registrar's book in 5 Ves. 503), the gift to the testator's wife was of the use and enjoyment of the property for her life, with power, by her will or otherwise, to give the same amongst one or more of the children of his daughter Martha, in such manner and proportions as she should think proper; but in case no such child should be living at his wife's death, then he desired and directed her to leave the same to other parties. There were children of Martha living at the wife's death; but she attempted to leave the property to the other parties named by the testator, and it was held that Martha's children were entitled. This is a case in which the donee of the power had only a life estate, and where there was a power of selecting any of the favoured class; but there was, in that case, no doubt of the intention in favour of Martha's children if there should be any living at the death of the wife. If the intention in favour of the nephews and nieces and their children in this case be sufficiently apparent, that case is directly in point.

These and other cases shew that when there appears a general intention in favour of a class, and a particular intention in favour of individuals of a class to be selected by another person, and the particular intention fails, from that selection not being made, the Court will carry into effect the general intention in favour of the class. When such an intention appears, the case arises, as stated by Lord Eldon in Brown v. Higgs (see 8 Ves. 574), of the power being so given as to make it the duty of the donee to execute it; and, in such case, the Court will not permit the objects of the power to suffer by the negligence or conduct of the donee, but fastens upon the property a trust for their benefit.

Many other cases, of an earlier date than Brown v. Higgs, might be referred to; but the whole doctrine was so fully discussed, and so maturely considered by Lord Alvanley and Lord Eldon in that case, that it is not necessary to advert to them. In Brown v. Higgs, twice heard before Lord Alvanley, as reported in 4 Yes. 708 and 5 Ves. 495, and before Lord Eldon, upon appeal, as reported in 8 Ves. 561, and affirmed in the House of Lords, 2 Sugden on Powers, 176, the facts were, that the testator bequeathed a leasehold estate to John Brown, upon trust to permit his wife to receive a certain sum out of the rents, and to pay other sums thereout; and after the above trust was performed, he authorized and empowered John Brown to receive the remainder of the rents, and to dispose of it in manner following, that is to say, to take £100 per annum for his own use, and to employ the remainder of the rents, after paying certain necessary expenses, to such children of his nephew Samuel Brown, as John Brown should think most deserving, and as would make the best use of it; or to the children of his nephew William Augustus Brown, if any such there should be. John Brown died in the testator's lifetime. There were children of Samuel Brown, but none of William Augustus Brown. The decree declared that, in consequence of the death of John Brown in the testator's lifetime, the rents were well bequeathed in trust for all the children of Samuel Brown, and the children of William Augustus Brown, if there were any. Lord Alvanley said that he considered the bequest as equivalent to saying that he gave to the children, with a power to John Brown to select any he thinks fit, and to exclude the others; and that the fair construction was, that, at all events, the testator meant that the property should go to the children. Upon these facts it is to be observed that there was no gift to the children, except in the authority and power given to John Brown to pay to such of them as he should think proper; and, although the property was intended to vest in John Brown, it never did so in fact; and that the decision was founded upon this, that there was sufficient indication of an intention in favour of the children, as a class, to justify the Court in giving it to them; and that, although the word "or" is used in the will, both sets of children were held to be entitled. The case was reheard before Lord Alvanley, and the authority of The Duke of Marlborough v. Lord Godolphin pressed upon the Court, and it was argued that when a gift is through a power, and the power is not exercised by the donee, the Court cannot execute it. Lord Alvanley, in giving judgment, and adhering to his former judgment, answered this argument by denying that he had proposed to execute the power, but said that the question was, whether an intention appeared that the children were the objects to whom the testator meant to give the interest, with a power only in John Brown to select or apportion. Lord Eldon affirmed this decree, saying that, upon the probable intention, his inclination to the opinion of Lord Alvanley was too strong to permit him, upon any doubt he entertained upon that obscure will, to say that there was not intention enough to justify the declaration which had been made; resting, therefore, the decision upon the question of intention, and finding sufficient proof of the intention to give to a class, in an authority and power, confided to another, of selection and distribution amongst such class.

In this case, the intention is not to be found only in the power given to select and distribute; for the testator has directed his trustees to hold the property until the contingency has happened, and, as to the land, that it shall not be alienated in the meantime, and has himself declared that, in the events which have happened, the property should be disposed of as after mentioned. This is imperative, and is conclusive as to the intention that the subsequent gift should take effect; but the only disposition after mentioned is the provision for the nephews and nieces, and their children, subject to the selection and distribution of the survivor of his son and daughter.

Much argument was urged at the bar upon the ground that the donee of the power had no estate in the property under the will beyond a life interest. In my view of the case, this is quite immaterial. It is not, certainly, one of those cases in which property is given, with expressions added, as to the disposal of it, which are held to fix a trust upon the gift; but the whole is given to trustees, and the question is, whether there be found in the will a sufficient declaration of who, in the events which have happened, are to be the cestuis que trust; and if that be sufficiently expressed, it is immaterial whether the donee of the power be also a trustee, or whether the trust be vested in others.

In Birch v. Wade (3 Ves. & Bea. 198), the property was given in trust, and the donee of the power was only tenant for life. In this case, upon the authority of Brown v. Higgs, I think myself justified in giving effect to the intention, which appears to me to be sufficiently apparent upon the will, of giving the property to the nephews and nieces, and their children, subject to the selection and distribution of the survivor of the son and daughter; and that they all constitute the class to take all the property as to which no such selection and distribution has been made.