are meant, as if it had been " his friends," it would be void for uncertainty.
But the word " relations" is a description known in the law. Shall her
neglect make it void ? It is a trust ; and she not having executed it, it
devolves upon this Court. It is not to go according to the Statute of Dis-
tribution ; but the devise is not void ; and that statute is a good rule to go by.
And as equality is a principle of equity, it shall go to such of his next of kin
as were alive at the death of his wife.'
" On the other hand, it was insisted to be a mere power; and the argument
of Mr. Chute is very well conceived ; for the argument is, that if it is a trust
it ought to be so at the death of the testator, for those who were to take at the
death of his wife ; and if not, it is a mere power, and the wife, not having
executed it, it is a void devise, and so to go, according to the statute, as undis-
posed of : so, either way it ought to go to those who were the next of kin at
his death ; and 1 Vern. 35, is cited upon that. This argument is added to
by this consideration, that, if it was a trust, and the relations at the death of
the testator were to take, the gift to Swindell could not be good ; for he was
not one of the next of kin at the death of the testator, or of his wife, but was
the son of one of the next of kin. The Court appears to have taken this
course. The wife took the whole legal interest, in terms, what may be called
a, power to give to his relations; and though, in ordinary cases, that means
next of kin at the death of the testator, yet, where the will itself affords the
means of avoiding the inconvenience of a construction giving *a r*(^n' - i
greater latitude to that word, the Court holds, that persons more re-
mote may take, viz., that she might give to any one de facto answering the
description. Swindell might be a legatee ; and if she had given to all per-
sons, of whom none were next of kin, but all were relations, it would have
been good.
" The next consideration was, what became of that property she did not
give to any one ? Was it undisposed of ? If so, of necessity it would have
gone to those who were next of kin at the death of the testator, or the repre-
sentatives of any who died in the life of the wife. But the Court seems to
have considered that there was a duty imposed upon the wife, and that a
latitude was to be given, to enable her to discharge the duty according to the
power, and which she was desired and commanded to discharge. Then,
having the power of naming during her whole life, the Court said, those rela-
tions, who were relations at her death, were to take. That could not be,
because they were strictly cestuis que trust ; but, as those to whom she might
vol. in. — 33
514 POWER COUPLED WITH TRUST.
have o-iven the instant before she died, were those to whom she ought to have
criven%he was intrusted with a power; and then they applied the doctrine of
the inconvenience of applying it with more latitute than relations, according
to the statute existing at that period. That was a case, therefore, of a power
in her, which he required her to execute, which enabled her to give to any
relations ; and the Court, looking at it as a power coupled with a duty to exe-
cute it, were bound as she had not executed it, to execute it ; and consistently
with its own rules, not giving more latitude to the word < relations' than in
ordinary cases, and adopting what it supposed her duty, viz., giving to those
who stood in that character at her death ; and the case establishes this, that,
though upon a mere power this Court will not interpose, if it is not executed,
yet, if it is so given as to vest the power in the person having the whole legal
interest, and to call upon that person to execute the purpose, sufficiently
expressed to make it the duty of that person, if he fails in that duty the Court
will execute it for him :" 8 Ves. 570.
The doctrine laid down in the principal case was approved of and acted
upon in the leading case of Brown v. Higgs, which was twice heard before
Lord Alvanley, as reported in 4 Ves. 708, and 5 Ves. 495, and before Lord
Eldon, upon appeal, as reported in 8 Ves. 561, and affirmed in the House of
Lords (see 5 My. & Cr. 92.) In that case, the testator bequeathed a lease-
hold estate to John Brown, upon trust, subject to certain charges, to employ
the remainder of the rent to such children of his nephew, Samuel Brown, as
John Brown shall think most deserving, and that will make the best use of
it, or to the children *of his nephew William Augustus Brown, if any
"- -1 such there are or shall be. John Brown died in the lifetime of the
testator, and William Augustus Brown had no children. It was held by Lord
Alvanley, that the children of Samuel Brown were entitled, in equal shares,
to the leasehold estate. " The question," said his Lordship, upon the rehear-
ing, (5 Ves. 500,) " is, whether this sentence in the will, upon which the
question arises, is to be considered as merely giving John Brown a power, if
he thinks fit, to give the profits of the farm, of which he was the trustee, to
the children of Samuel Brown or William Augustus Brown, or whether, upon
the true construction, it is anything more or less than a mere trust in him,
with a power to single out any he might think more deserving, but a gift to
him, in trust for those children, at all events; and I am of the same opinion,
upon very full consideration, and after the very able arguments I have heard
to shake that opinion, that it is a trust, and not a power in John Brown ; and
that his non-exercise of that power, or the circumstance of his being incapable
of exercising it, will not prevent the objects of the testator's bounty from
taking in some manner, though the power of distribution, on account of the
death of the testator, cannot be exercised."
The case of The Duke of Marlborough v. Lord Godolphin, 2 Ves. 61, is
certainly very difficult to reconcile with Harding v. Glyn, or with this case.
" But the question," Lord Eldon has observed, " is not whether one case is
to be reconciled with others, but whether all the cases have gone upon a prin-
HARDING V. GLYST. 515
ciple which professes to save whole Harding v. Glyn. Lord Hardwicke, in
The Duhe of Marlborough v. Lord Godolphin, does not say that, where there
is a power, and it is made the duty of the party to execute it, and he would
not execute it, in such a case this Court would not act ; but he collected, from
the scope and object of the disposition in that case, taken altogether, the
opinion, that it was a case in which the person having a power to dispose of
the sum of £30,000 had a mere power, not clothed with any duty requiring
her to execute it ; and, therefore, as to what was not disposed of, the Court
could not interfere :" Brown v. Higgs, 8 Ves. 57G.
In Burrough v. Philcox, 5 My. & Cr. 72, a testator directed that certain
stock should stand in his name, and certain real estates remain unalienated
"until the following contingencies are completed;" and after giving life
interests in such stock and estates to his two children, with remainder to their
issue, he declared, that, in case his two children should both die without
leaving lawful issue, the same should be disposed of as after mentioned : that
is to say, *the survivor of his two children should have power to dis- r^o^q-i
pose by will of his real and personal estate " amongst my nephews
and nieces or their children, either all to one of them, or to as many of them
as my surviving child .^hall think proper." It was held by Lord Cottenham,
that a trust was created in favor of the testator's nephews and nieces, and
their children, subject to a power of selection and distribution in his surviving
child. " When there appears," observes his Lordship, " a general intention
in favor of a class, and a particular intention in favor of individuals of a class,
to be selected by another person, aud the particular intention fails, from that
selection not being made, the Court will carry into effect the general inten-
tion in favor of the class. When such an intention appears, the case arises,
as stated by Lord Eldon, in Brown v. Higgs, (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 negli-
gence or conduct of the donee, but fastens upon the property a trust for their
benefit. ..." 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 mean time ; 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 trus-
516 POWER COUPLED WITH TRUST.
tees • and the ouestion is, whether there be found in the will a sufficient de-
claration 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 V. & B. 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. Biggs, I think myself jus-
tified in giving effect to the intention, which appears to *ine to be
L 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."
In Salusbury v. Denton, 3 K. & J. 529, a testator by will gave a fund to
be at the disposal of his widow by her will, " therewith to apply a part" for a
charity, " the remainder to be at her disposal among my relations, in such
proportions as she may be pleased to direct." The widow died without exer-
cising the power of determining the proportions in which each were to take.
It was held by Sir W. Page Wood, V. C, that the bequest was not void for
uncertainty, but that the Court would divide the fund in equal moieties, and
cive one of such moieties to charitable purposes, and the other moiety to such
of the testator's relatives as were capable of taking within the Statutes of Dis-
tribution. See also Hutchinson Y. Hutchinson, 13 Ir. Eq. Rep. 332; Gough v.
Bult, 16 Sim. 45. See and consider Cowper v. ManteU } 22 Beav. 231.
The result of the decisions is that the Court, as a convenient rule of con-
struction has adopted the Statutes of Distribution as the means of determining
who are comprehended under the term " relations," but although this is the
case, it is clear that a donee with a power of selection may go beyond the rule
adopted by the Court, and exercise it in favor of relations of the donor, who
are not within the degree of next of kin : Supple v. Lowson, Amb. 72! I ;
Spring v. Biles, 1 T. Hep. 435, n. ; Cruicys v. Colman, 9 Ves. 324 ; Mahon v.
Savage, 1 S. & L. Ill; Forbes v. Ball, 3 Mer. 437; Grant v. Lynam, 4
Russ. 292, overruling Brunsden v. Woolredge, Amb. 507; 1 Dick. 380;
Salusbury v. Denton, 3 K. & J. 529.
The same rule has been applied with respect to personal estate, where the
word " family" has been used in place of "relations :" C'ruwys v. Colman, 9
Ves. 319 ; Grant v. Lynam, 4 Russ. 297.
Where, however, the donee has merely a power of distribution, and not a
power of selection, — if, for instance, he has a power to appoint among relations,
and not amongst such of them as he thinks fit, or words of that effect, an
appointment to relations not being next of kin would be void : Pope v. Whit-
combe, 3 Mer. 689 ; and see Clapton v. Bnlmer, 10 Sim. 426 ; 5 My. & Cr.
108.
And if the power of selection is confined to a particular class, the donee
cannot go beyond it. Thus, a gift to the testator's " nearest relations," as A.
HARDING V. GLYN. 517
may appoint, will only authorize an appointment to next of kin under the
Statutes of Distribution : Goodinge v. * Goodinge, 1 Ves. 231 ; Edge v. p^o-. -, -,
Salisbury, Amb. 70. L â– "
In cases of charities in favor of "poor relations," ( White v. White, 7 Ves.
428; Attorney- General v. Price, 17 Ves. 371; Mahon v. Savage, 1 S. & L.
Ill,) or where the testator has himself furnished some test by which relations
extending beyond the Statutes of Distribution may be discovered, (Bennett v.
Honywood, Amb. 708,) the court of chancery will not confine itself, as in
ordinary cases, to relations within the statutes.
On the death of the donee of a power imperative as a trust, without hav-
ing made an appointment, the question arises, in whose favor will the Court
execute the power, — whether in favor of persons composing a certain class
at the death of the donor, or at the death of the donee of the power. It
seems, however, to be clear, that when, as in the principal case, the donee of
such a power has a life interest in the subject of the power, which he might
execute in favor of "relations," on his death, without having done so, the
Court will execute it, not in favor of those who are next of kin at the death
of the donor, but of those composing that class at the death of the donee;
see Doyley v •. Attorney-General, 2 Eq. Ca. Ab. 194, pi. 15; Witts v. Boding-
ton, 3 Bro. C C 95 ; Cruwys v. Colman, 9 Ves. 319, 325 ; Birch v. Wade,
3 V. & B. 95; Winn v. Fenwick, 11 Beav. 438; Tiffin v. Longman, 15 Beav.
275; Finch v. Hollingsworth, 21 Beav. 112; sed vide Hands v. Hands, 1 T.
11. 437, n., cited ; Grieveson v. Kirsopp, 2 Keen, 653. But where the distribu-
tion or selection is not suspended by the existence of any preceding estate for
life, those who are to take are such as answered the description of next of kin
of the testator at his death : Cole v. Wade, 16 Ves. 27. And see Brown v.
Higgs, 4 Ves. 708 ; Longmore v. Broome, 7 Ves. 124 ; and the same persons
will take when the donee of the power having a life interest dies in the life-
time of the testator; Penny v. Turner, 2 Ph. 493; Hutchinson v. Hutchinson,
13 Ir. Eq. Rep. 332.
Another question may arise in the exercise of such a power by the Court,
viz., what share persons who, by representation under the statute, would only
be entitled per stirpes, will take ? It seems, that they will take per capita ;
upon this principle, that the Court merely adopts the statute for the sake of
convenience, in finding out the persons intended by a term which would other-
wise be void for uncertainty; and when found out, they take, not under the
statute, but under the will, as joint tenants; see Walter v. Maunde, 19 Ves.
427, 428; and see Pope v. Whitcombe, 8 Mer. 689; Hinckley v. Maclarens,
1 M. & K. 27 ; Withy v. Mangles, 4 Beav. 358 ; 10 C. & F. 215.
* Although the subject be not capable of division, or one object out r*gi9-i
of a class is to be selected by the trustee, the Court will, if possible,
execute the power, on the default of the trustee ; Richardson v. Chapman,
7 Bro. P. C. 318, Toml. edit.; Moseley v. Moseley, Rep. t. Finch. 53; Brown
v. Higgs, 5 Ves. 504.
In Cruwys v. Colman, 9 Ves. 319, the testatrix bequeathed to her sister
513 POWER COUPLED WITH TRUST.
B. for life declaring that it was her absolute desire that she bequeathed to
those of her own family what she has power to dispose of, provided they
behaved well to her, with decency and affection. B., by her will, declared she
meant to make no disposition of her sister's property. Sir William Grant,
M. R. held that, as all that B. said was, that she did not intend to execute
the power, the trust remained unexecuted, and was consequently to be exe-
cuted by the Court in favor of the next of kin of B. But his Honor said,
that a difficulty might have arisen if B. had declared her own relations had
behaved ill to her, and therefore she had resolved not to give them any part
of the property. The question then would have been, whether she was not
constituted sole judge of the propriety of the behavior of her family, and
whether it was not an intestacy in the testatrix, the condition failing.
It may here be remarked, that, although a devisee may be bound to devise
an estate according to the confidence reposed in him, or in default of appoint-
ment it will go to the object designated by the testator, yet, in respect of
enjoyment, all the rights and incidents of property, for instance, the right of
fellin" - timber, will remain in the devisee during his life to the extent of the
estate vested in him. Thus, in WrigJd v. Atkyns, (17 Ves. 255,) a testator
cave all his leasehold, freehold, and copyhold estates, of whatever tenure or
tenures unto his mother, Charlotte Atkyns, and her heirs for ever, in the
fullest confidence, that, after her decease, she would devise the property to his
family ; and he charged the premises with the payment of his debts, and gave
to her all his personal estate, and appointed her his executrix. The testator,
who died possessed of no leaseholds, left his nephew his heir-at-law. Sir
William Grant, M. B., held that there was no uncertainty, but that it was a
trust for the testator's heir, and that therefore Mrs. Atkyns was to be con-
sidered as tenant for life of the estate. Lord Eldon afterwards granted an
injunction restraining her from cutting down trees, or committing waste :
1 V. & B. 313 ; 19 Ves. 299; G. Coop. Ill, 125. Upon an appeal to the
House of Lords, the decree was reversed, so far as it declared Mrs. Atkyns
only tenant for life, without prejudice to any question which might arise
touching the construction of *the testator's will, on the death of
L'bloJ charlotte Atkyns; and the order for the injunction, so far as it was
founded on the declaration that Mrs. Atkyns was only tenant for life, was
reversed, and Mrs. Atkyns was to apply to the court of chancery, as she
might be advised, touching such injunction, or any other ground. There
being no remaining incumbrance on the estate, Lord Eldon dissolved the
injunction, upon the application of Mrs. Atkyns : Sugd. Prop. 382. The per-
son who was the testator's heir at his death, having died, a bill was filed by
his devisees and the heiress-at-law of the original testator, not praying any
declaration of rights, but praying an account of timber sold, and an injunc-
tion. Lord Eldon gave Mrs. Atkyns power to cut timber in a husbandlike
manner, giving an account, and paying the money into Court. See T. & R.
143. This order being considered to be in opposition to the principle upon
which the House of Lords reversed the decree, a second appeal was made to
HARDING V. GLYN
519
the House in the same session, and the decision of Lord Eldon was reversed,
the judgment of the House of Lords declaring, that, according to the true
construction of the testator's will, the intention of the testator must be taken
to have been to give to the appellant a right to cut the timber for her own
use. See Sugd. Prop. 384.
Control of the Court over the Exercise of Powers."] — A court of equity has
not in general, in the absence of mala fides on the part of the donee, any juris-
diction to interfere with, or compel him to execute a mere discretionary power :
Brown v. ffiggs, 5 Ves. 501 ; 8 Ves. 570 ; Pink v. De Thulsey, 2 Madd. 157 ;
French v. Davidson, 3 Madd. 396; Walker v. Walker, 5 Madd. 424; Down
v. Worrall, 1 My. & K. 561 ; Meredith v. Heneage, 1 Sim. 554 ; Costabadie
v. Costabadie, 6 Hare, 410 ; Kekewich v. Marker, 3 Mac. & Gr. 311 ; In re
WiUceis Charity, lb. 440; White v. Grane, 18 Beav. 571; Hart v. Tribe,
19 Beav. 149.
Where a testator proposes to recommend any person to the favorable regard
of another, whom he has made the object of his bounty, it should be ascer-
tained whether he intends to impose a legal obligation on the devisee or lega-
tee in favor of such person, or to express a wish without conferring a right.
In the former case a clear and definite trust should be created, and in the
latter, words negativing such a construction of the testator's words should be
used. Equivocal language in these cases has given rise to much litigation :
2 Jarm. on Wills, App. 686, 2d ed.
The English rule has been followed
in several instances in this country,
and the qualification of a gift bywords
expressing a desire, wish, hope, or ex-
pectation, that the donee would use or
employ the thing given, for the bene-
fit of others, as well as his own, held
to create a trust in their favor, on the
general principle, that the construc-
tion of wills should be governed by
the intention of the testator; and that
when his wish is plain, it should not
be allowed to fail, because he has used
a gift to one man, as the means and
channel of conferring a benefit upon
another ; Erlckson v. Willard, 1 New
Hampshire, 217 ; Lucas v. Lockhart,
10 Smedes & Marshall, 466 ; Harri-
son v. Harrison, 10 Grrattan, 1. But
the tendency of the more recent de-
cisions, has been, in general, to limit
and restrict the operation of this prin-
ciple by the qualification, that a gift
ought not to be converted into a trust,
by words less clear and significant
than those by which it is conferred,
nor unless it is plain, that the testa-
tor meant to charge the donee with
the weight of a legal obligation, and
not merely to appeal to his conscience,
his generosity, or his kind feeling, by
intimating a wish, that a particular
course should be pursued, while leav-
ing him free to determine whether he
would or would not pursue it ; Bull
Chapln, 19 Conn. 342; Harper v.
Phelps, 21 Id. 257 ; Brunson v. King,
2 Hill, Chancery, 483 ; Ellis v. Ellis,
520
POWER COUPLED WITH TRUST.
15 Alabama, 296; Thompson v. MKis-
ick, 3 Humphreys, 631.
The question arose iu Ward v. Pe-
loubet, 2 Stockton, Ch. 305, where
those portions of the will which are ma-
terial, were worded as follows : " Se-
condly, I give and bequeath unto my
beloved wife, Susan Ward, all my
property, both real and personal, to
be disposed of in such manner as she
may think proper, for the benefit of
the family : it is my wish, that my
youngest daughters, Mary and Caro-
line, shall have an education equal to
my daughter Phebe; and my two
sons, Sydenham and John, to be edu-
cated and fully prepared to enter col-
lege, or the study of a profession ;
but, provided either of them should
not choose to have such an education,
the one who does not, to be made
equal in property, to the expense of
educating the othei*, in which case,
the mother is to be judge, or in case
of her decease, my executors, whom
I shall appoint.
" After the children arrive at age,
I leave it discretionary with Susan,
my loving wife, what donations to
make them out of the property ; and
in ease of her decease, or marriage,
to be left with the executors, whom I
shall hereafter name ; but in every
respect, I wish them made as near
equal as can be. Lastly, I hereby
appoint my loving wife, Susan Ward,
my brother, Joseph P. Ward, and
my brother-in-law, John Sydenham,
executors/' &c. And the decision
was, that although the words which
authorized the wife to dispose of the
property in such manner as she might
think proper, for the benefit of the
family, might, if they stood alone,
have given her an unlimited control
over the whole ; yet, as the testator
went on to express a wish, which the
residue of the clause showed was his
will, that the property should be ex-
pended in the education of his chil-
dren, and be divided equally among
them, on the death or marriage of his
wife, effect should be given to his
intention, by interpreting the bequest
as a trust, and denying the right of
the widow to dispose of the property
by deed or will, to third persons, or