and that must be a fubftantial share, or a reafon must be assigned. But here no reafon was afligned or proved. The appointment was therefore held illufory and void. Spencer v. Spencer, 5 Vef. jun. 362. See Kemp v. Kemp, Ib. 849. The words there were to A. for life," and then to be difpofed of amongst her children as The hall think proper." 8. Voluntary bond to pay 6ool. "unto and amongst all fuch ❝ child or children of A. as the obligor should by deed or will ap"point;" and for want of appointinent, to and amongst all such child or children of A. as might furvive the obligor. An appointment by will of the whole to one of fix children established; the obligor having clearly referved to himself the power to fix the objects. Wollen v. Tanner, Ib. 218. 9. A power, given by will to appoint 1000l. for the benefit of a married woman and her family, was held, from the accompanying circumftances, but not as a general rule, to authorize an appointment to the hufbind. M'Leroth v. Bacon, Ib. 159. See (A. 7) fect. 2. fupra. (A. 15) To charge, &c. Land, &c. in refpect of the Perfon doing it. [Infant,] &c. I. ONE well executed; 16 Vin 481. Feme covert, NE feifed in fee, on his marriage, fettled lands on himself for life, then to his wife for life, remainder to the iffue of the marriage, then over. And the deed contained a provifo, that it fhould be lawful for the wife, during her life, to demife the premises to any person for such term, with and under such conditions, rents, and refervations, in fuch manner to all intents as tenant in tail might do by the ftatute 32 Hen. 8. The husband died, and the wife married again; and then she and her fecond hufband demifed the premifes pursuant to the power. And two questions were made. First, whether, the leafe being made by husband and wife, when the power was given to her alone, this was a good execution thereof, or whether it was not fufpended by the marriage? Secondly, whether this leafe by the husband and wife ought not to have been made by fine? And it was held, upon the first question, that this was a good execution, notwithstanding the coverture. And, as to the second, that no fine was necessary; for the estate of the leffees was not derived from the leffors, but arofe out of the eftate of the feoffees or releafees named in the original fettlement. And that, therefore, nothing more was requifite to railing it than what was required by the deed which created the power. Bailey v. Warburton, Com. 494. See Harris v. Graham, ftated in 3 Vin. 419. pl. 12. and fecond point in Godolphin v. Godolphin, 1 Vef. 21. 2. The cafe of Rich v. Beaumont, stated in 4 Vin. 168, pl. 26. and 22 lb. 277. pl. 47. has been fince reported in 3 Bro. Ca. Parl. 308. But the reporter, after ftating that the court of Chancery directed a cafe for the opinion of the court of K. B. adds, in a note, that, after a very laborious fearch, he had not been able to difcover a figle trace of any further proceedings in the caufe, except an order of the court of Chancery, directing the cafe to be fettled by the Mafter, in cafe the parties differed in ftating it. See Porwell on Powers, 36. S. C. 3. A., having an only daughter about 16 or 17 years of age that had married B. clandeftinely, who foon afterwards became a bankrupt, by his will devised all his freehold, copyhold, and real estate, and all his leasehold eftate to trustees, their heirs, executors, adminiftrators, and affigns, in truft to apply the refidue, after paying their own charges, to the fole ufe of his daughter during her life, and not to be subject to the debts or control of her husband, and to permit her by deed or writing, executed, &c. notwithstanding her coverture, to give and difpofe of all his freehold, copyhold, and leafehold eftate as the fhould think fit, fhe having a particular regard to his poor relations in Cornwall; and he gave to the fame trustees, whom he made joint executors, his perfonal estate, in truft for the separate ufe of his daughter. A. died foon afterwards. His daughter, being under 21, though above 17, after her husband's bankruptcy, and whilst living separate from him, made her will, and thereby, in purfuance of the power given her by her father's will, bequeathed to her daughter M. 3000l. to be paid her at 21, with a provifion for her maintenance in the interim. She then gave legacies to fome poor relations, ap. pointed the two trustees in her father's will, and two others joint executors, guardians, and trustees to her daughter, and then devifed the refidue of her real and perfonal eftate to the plaintiff. One question was, whether the will of the daughter was a good execution of the power in her father's will as to the real eftate? Lord Hardwicke remarked, that this question had never been determined that he knew of. He could find no cafe where a power, given generally, could be executed by an infant; and therefore he would make none. As to the general queftion concerning powers, it must be admitted, he faid, that there were fome powers which an infant might execute, as, where he was a mere inftrument, or conduit pipe, where no prudence or difcretion was required, or where his right was not affected. But this cafe was a power coupled with an intereft. Befides, there was an objection upon the penning of the power, against the daughter's executing it during infancy, for the teftator, having the coverture in view, had excluded that difability, giving her power to dispose, notwithftanding it; and would alfo have excluded the case of infancy, had he fo intended. And his lordship was of opinion, that the power was not well executed as to the real estate: but, as to the perfonal eftate, as the feme was above the age of 17, at which age, if fole, the might have made a will thereof, that was clear of the principal objection made as to the real eftate; and therefore the power was held to be well executed with refpect to it. v. Greenbank, 3 Atk. 696. I Vef. 298. S. C. Herle Mr. Har grave in note Q Co. Litt. 113. a. enterrains the opinion, which he fortifies by a train of argument and authorities, that a power to fell, when given to executors, eo nomine, will go to the furvivor; by reafon that it is annexed to their office and character, which itself furvives. I. (A. 16) Sufpended, determined, or extinguished. 16Vin. 482 ·BY 2. Bequest of refidue of perfonalty to trustees for A. for life, and then to and among all and every the children and child of A. if more than one, in fuch shares and manner, for fuch interefts, c. (in the fulleft terms,) as A. fhould appoint; and in default, &c. to veft at 21. A. had two children, one of whom attained 21, and died in her lifetime. A. afterwards appointed the bulk to the furviving child; and held good, though only one object remained. Boyle v. Bishop of Peterborough, 1 Vef. jun. 299. 3. But where there was a power to appoint among children an appointment to one who was dead, fo as to veft it in the reprefentative, was rejected, the objects being perfonal. The death, however, of that one did not affect the power as to the rest. Maddifon v. Andrew, 1 Vef. 57• 4. Mr. Butler, in note 1. Co. Litt. 342. b. et feq. has laid down and fubftantiated, by a train of argument and authorities, feveral rules refpecting the fufpenfion and extinction of powers. These he premises with a general divifion of powers, diftributing them into powers collateral to the land, i. e. which are given to mere ftrangers, who have not any intereft in the land; and powers relating to the land, i. e. which are referved to perfons who have either a prefent or future intereft in the land. And this latter fort he fubdivides into two claffes, powers annexed to the eflate in the land, and powers in grofs; the former being, where a perfon has an eftate in the lands, and the eftate to be created by the power is to take effect in poffeffion during the continuance of the eftate to which the power is annexed; (fuch as the power of leafing in poffeffion given to A. B. in the above-stated case;) and the latter being, where a perfon has an eftate in the land, but the eftate to be created by the power is not to take effect till after the determination of the eftate to which it relates; fuch as a power to jointure an after-taken wife. As to powers collateral to the land, the annotator informs us, that a fine, feoffment, or common recovery will not extinguish c destroy them, nor can they be releafed. As to powers relating to the land, fuch of these as are in the nature of powers appendant to the eftate, may be extinguished by releafe, feoffment, fine, or common recovery, and are alfo liable to be fufpended or extinguifhed even by any of the conveyances which are faid not to operate by tranfmutation of the poffeffion, as bargain and fale, leafe and release, and covenant to stand seised; and, as an affurance of this nature, which carries the whole of the grantor's eftate, is a total destruction of the powers appendant to it, fo, fuch as carries only a part of the estate, fufpends, during the continuance of that eftate, the exercife of the power, or at least the estate to be raised by it; and any fuch affurance, which induces only a charge upon the eftate, neceffarily fubjects the estate to be created by the power to that charge. (See letter (C) poft.) Next, with refpect to powers in grofs, thefe, we are told, are not affected by bargain and fale, leafe and release, or covenant to stand feifed. And this, if the appointor even makes a conveyance in fee, by any of thefe affurances, as they do not pafs a greater eftate than the grantor has a right to convey. But, if he conveys by fine, feoffment, or recovery, which affurances convey a tortious fee, the power will be extinguished. A power in grofs, it is added, may be alfo released to those in remainder. But Mr. Butler obferves, that, although it is faid, that a feoffment, fine, or common recovery may extinguifh powers annexed to the eftate, or in grofs, yet they do not unavoidably extinguish these powers in all cafes; and he inftances the Earl of Leicester's cafe, (ftated in 16 Vin. 491, 2. pl. 14) and Herring v. Brown, (stated in ib. 494. (E) fide note to pl. 3.); in both which cases the deed and fine operated as an execution of the power, and not in extinction of it. See Ingram v. Parker, ftated in (C) poft. See alfo Butl. note, stated in Suppl. tit. Recovery, (W) poft. 1. (A. 17) Defective Execution. Supplied in Equity. 16Vin 483. THE HE Mafter of the Rolls, in Fitzgerald v. Lord Falconberge, (tated 16 Vin. 492. pl. 20. and fince reported in 3 Bro. Par. Ca. 543) obferved, that the fecond pofition of Lord C. King, in Sayle v. Freeland, (ftated in 16 Vin. 496, 7. pl. 2.) that, if the power, in that cafe, had not been ftrictly executed, equity would help in fuch a little circumftance, where the owner of the eftate had fully declared his intent, was going too far, unless there was fome equitable circumftance in the cafe; for it was contrary to the refolution in the cafe of Bath v. Montagu, (ftated in Co. 14. ante.) See Porvell on Powers, p. 152. et feq. 2. In the cafe of Smith v. Afhton, (ftated 16 Vin. 483. pl. 3. and fide note,) one circumftance fhould be attended to, namely, that the estates chargeable with the portions were, foon after the death of A., fettled by R. (the eldeft fon of A.) upon his marriage, on his wife, (who had 500l. for her portion,) and the iffue of the marriage, without notice of the notes in writing prepared by A., which were afterwards found by the verdict to be his will. 3. A. upon his marriage covenanted, that his eftate fhould be chargeable with 1000l. for the benefit of younger children and his wife having an eftate of her own, fhe and her husband, after marriage, levied a fine of it, and the ufes declared were, that A. and his wife should have a power, by any deed or writing under their hands and feals, or the furvivor of them, by his or her laft will, to appoint and divide the eftate among their younger children, in fuch proportions as they or the furvivor fhould think proper. A. furvived, and by his will gave his daughter, (who was the only younger child) 3000l. which, he declared, fhould be in lieu and in full fatisfaction of the 1000l. covenanted to be raised out of his own eftate, and he charged the 3000l. on his wife's eftate, intending thereby to execute his power. Lord Hardwicke was of opinion, that the power was, in fubftance, well executed. It was true, the direct terms of the power were not purfued; but the intent and defign of it was it was admitted, that the father might have appointed part of the eflate to be fold, and the money raised by fuch fale. And what was done was exactly the fame thing. The court might order a file; and, though the will might not enure as a good execution of the power in ftrictnefs, yet, within the meaning and defign of it, it was a good charge for the young lady's benefit. Roberts v. Dixall, 2 Eq. Ca. Abr. 668. pl. 19. 4. M. having a power of charging a real eftate with 4000l. by deed or will, executed in the prefence of three witneffes, to any perfon fhe fhould appoint: the, being about to marry, by articles, executed in the prefence of two witneffes only, appointed 2000, part of the 4000, to be for the ufe and benefit of her intended husband during her coverture; and after her death to her fon. The other 2000l. fhe made a voluntary difpofition of by will; but |