case John earl OF BUTE Appellant james archibald stuart and others Respondents  that January Mews dig ten xv see also Eden a by will devise his colliery  etcetera to trustee upon trust to dispose and convey the same in such manner  as his daughter m whether sole or covert shall direct or appoint and for want  of such direction or appointment to apply the money arise thereby to certain  purpose in his will mention he then declare that though his meaning be to give  his say daughter the absolute disposal of the say colliery etcetera to prevent  the expense and trouble that must attend the management of affair of such a  nature under the direction of the court of chancery he request his say  daughter to direct the money arise therefrom to be apply in such manner as he  have direct the same in default of her direction and appointment the daughter  make a appointment in favour of her husband absolute but this appointment be  hold to be void as be contrary to the testator intention Edward Wortley  esquire by his will date the d of may give and devise all his manor land  tenement i open and unopen and hereditament in the westriding of the county of  York and also his freehold estate in Tintagel in the county of Cornwall  subject to a annual rentcharge of pound to the lady mary Wortley his wife and  of pound to his son the respondent Edward Wortley for their respective life  and to other annuity therein mention to and to the use of the respondent earl  Gower and sir Matthew lamb and to Godfrey Wentworth esquire and their heir  upon trust to permit his mansion house with the appurtenance in the westriding  of the county of York to be hold and enjoy by his daughter lady Bute for her  life and to pay the rend and profit of the residue of the premise to her for  her separate use and after her death in trust to pay the rend and profit of  all the premise into the proper hand of the respondent Edward Wortley and  after his death in trust for the first and brown er p other son of the say  Edward Wortley by any woman he shall then after marry successive in tail male  and for want of such issue in trust for the second and other son of the  testator say daughter lady Bute successive in tail male except her first son  with remainder to her first son in tail male with remainder in trust for her  first and other daughter successive in tail general remainder in trust for the  first and other daughter of the say brown Edward Wortley by any woman he shall  then after marry successive in tail general and for want of such issue in  trust for the testator own right heir and the testator thereby empower his  trustee and their heir yearly during the respective life of his say daughter  and son to cut down for building and repair and also for sale such timber on  his estate in the westriding of Yorkshire as they shall think fit leave the  usual stock of young timber and he direct that out of the money arise by such  sale of underwood his trustee shall pay to his say daughter the yearly sum of  pound for her life for her separate use and shall after her death pay the like  annuity to his say son and apply the surplus thereof in the purchase of land  tenement and hereditament in the westriding of the county of York to be convey  and settle to the same use as his estate in the say westriding be thereby  devise and settle and the testator give and devise subject to a annuity of  pound ayear thereby give to Edward Wortley his son for life all his manor land  tenement i open and unopen and hereditament in the northriding of the say  county of York and in the county of Nottingham Devon and Cornwall except his  estate in the parish of Tintagel in Cornwall unto the say earl Gower Godfrey  Wentworth and sir Matthew lamb and their heir in trust to pay the rend thereof  to the say countess of Bute his daughter for her life for her separate use and  after her decease in trust for her second and other son successive in tail  male except her first son remainder to the use of her first son in tail male  remainder to the use of her first and every other daughter successive in tail  general remainder in trust to pay the rend and profit thereof into the proper  hand of the testator say son remainder to the use of the first and other son  of his say son which he shall have by any woman he shall then after marry in  tail male successive remainder to the use of the first and other daughter of  his say son by such wife successive in tail general remainder in trust for his  the testator own right heir and he give and bequeathe all his ready money  security for money stock in the public fund and all other his good chattel and  personal estate except such part thereof as he by his will otherwise give and  dispose of to the say earl Gower Godfrey Wentworth and sir Matthew lamb their  executor administrator and assign in trust in the first place to pay his debt  legacy and funeral charge and subject thereto he direct that his say trustee  their heir executor and administrator shall from time to time as they shall  think proper lie out and apply the residue of his say personal estate in the  purchase of land tenement and hereditament in the say westriding of the county  of York in feesimple in possession to be convey to the same use as his estate  in the say northriding of the county of York be by his say will devise and  settle and further direct that until such purchase shall be make his say  trustee shall place out the say residue of his brown personal estate on real  or personal security and not on the public fund or government security and  apply the proceed thereof to such person as will be entitle to the profit of  the land if such purchase be real make the testator also by his aid will give  and devise all his colliery and coal i and all his estate and interest therein  and all his share in colliery and coal i and all his stock in the coal trade  and all his vessel ship and boat and all his land tenement hereditament good  and chattel in the county of Northumberland and Durham unto the say earl Gower  Godfrey Wentworth and sir Matthew lamb their heir executor administrator and  assign respective upon trust to convey and dispose of the same in such manner  as the say countess of Bute his daughter whether sole or covert shall direct  or appoint by any write or write under her hand and seal in the presence of  three credible witness and in default of such direction or appointment upon  trust for the manage and carry on the coal trade in partnership with his  partner brown er p therein and for that purpose he thereby authorize and  empower his say trustee their heir executor administrator and assign to sell  all or any of his land tenement and hereditament in the say county of  Northumberland and Durham when and as they in their discretion shall think fit  and to apply the money arise thereby and the rend and profit thereof in the  mean time in and for renew the lease of the present colliery or coal i and in  take to farm or purchase any other colliery or coal i or any land that lie  convenient for way or wayleaves and for the do all other act requisite and  proper for the carry on and manage the say coal trade in as full and ample  manner as he the testator can do and as they his trustee shall think most for  the benefit of his estate and the testator thereby declare his will to be that  his say trustee their heir executor or administrator shall stand possess of  and interest in the clear money which shall arise and be produce out of the  say colliery or coal i and other his real and personal estate and effect in  the say county of Northumberland and Durham thereby give and devise to they as  aforesaid in trust to apply and dispose of the same in such manner and for  such purpose as the residue and surplus of his personal estate be thereby  direct to be apply as aforesaid and he thereby also declare that although his  meaning be to give his say daughter the absolute disposal of the say colliery  and the premise relate to the same and of his land tenement and hereditament  in the say county of Northumberland and Durham to prevent the expense and  trouble that must attend the management of affair of such a nature under the  direction of the court of chancery he request his say daughter to direct the  money arise therefrom to be apply in such manner as he have direct the same in  default of her direction and appointment and the testator by his say will  direct that the several person who for the time be shall be entitle to his  real estate brown shall take the surname of Wortley and he give to such of the  daughter and young son of the say countess of Bute his daughter except the  respondent or such other son who shall after his death be entitle to his  estate under the limitation of his will the sum of pound each and give the  like sum of pound to his say daughter the countess of Bute and direct that  pound part thereof shall be apply towards finish WortleyHall in the county of  York and pound the residue thereof towards furnish the say house and that the  furniture thereof shall be enjoy with the house as heirlooms as far as the  rule of law or equity will permit and he appoint the say earl Gower Godfrey  Wentworth and sir Matthew lamb executor of his will in January the testator  die leave lady mary Wortley his widow and the respondent Edward Wortley his  only son and heir and the countess of Bute his only daughter and his personal  estate exclusive of what he be possess of in the county of Durham and  Northumberland be great more than sufficient to pay all his debt legacy and  funeral charge and the several annuity Payable thereout Mr Wentworth one of  the trustee and executor decline to act renounce the probate of the will and  release and assign to the respondent earl Gower and sir Matthew lamb their  heir executor administrator and assign all his estate and interest in the  several freehold and leasehold premise devise to he and his say cotrustees by  the testator will by which mean all the trust of the will relative to the  testator real and personal estate become vest in the respondent earl Gower and  sir Matthew lamb who prove the will and take upon they the execution thereof  the appellant and the countess his wife have issue between they the right  honourable John Stuart common call Lord viscount mount Stuart their old son  and the respondent James Archibald Stuart their second son and several other  young child it be insist by the appellant that the countess under the power  give to her by the testator will have a absolute power of dispose either  absolute for her own benefit or by way of voluntary gift or appointment to or  for the benefit of any other person and without any consideration of that very  great branch of the testator property which consist in his colliery and coal i  and other his real and personal estate in the county of Northumberland and  Durham brown er p and that accord she do by virtue and in pursuance of such  power sign seal and duly execute in the presence of three credible witness a  write or deedpoll date the that of march whereby she direct limit and appoint  all the say colliery and coal i and all such stock in the coal trade and all  such vessel ship and boat and also all such land tenement hereditament good  and chattel in the say county of Northumberland and Durham which her late  father be seize or possess of or interest in brown or entitle unto at his  death and which by his say will he give and devise to the say earl Gower  Godfrey Wentworth and sir Matthew lamb their heir executor administrator and  assign respective upon trust and subject to her disposition as aforesaid and  all benefit and advantage of the say premise unto the appellant her husband  his heir executor administrator and assign to and for his and their own use  and benefit absolute for ever accord to the nature or tenure of the say real  and personal estate and premise respective which she have power to dispose of  by virtue of her say late father will and the appellant insist that by virtue  of such appointment make in his favour and for his benefit as aforesaid he be  become absolute entitle to all the testator real and personal estate in the  say county of Northumberland and Durham soon afterward exhibit his bill in the  court of chancery against all the respondent pray that the respondent earl  Gower and sir Matthew lamb may be decree to convey to and to the use of he his  heir or assign or as he or they shall direct the several message land  hereditament and real estate in the say county of Northumberland and Durham  late belong to the testator and devise by his will subject to the disposition  and appointment of his say daughter the countess of Bute as aforesaid and may  also assign to he his executor administrator and assign or in such manner as  he or they shall appoint all the message land tenement colliery coal i and  hereditament in the say county of Northumberland and Durham which the testator  be possess of or entitle to at his death either in his own right or in  partnership with any other person by virtue of any lease or lease under which  the say premise be hold and may deliver up to he all the stock and utensil in  the coal trade wherein the testator be engage at his death and all the vessel  ship boat horse cart carriage engine implement and all other effect in the say  county of Northumberland and Durham which be use and employ at the testator  death in such trade or in carry on the same or in work or win the say colliery  and coal i and such part or share of and in the say several thing good chattel  and effect in the say county of Northumberland and Durham as the testator be  possess of interest in or entitle to at his death or which be then employ in  or about the say colliery and coal trade and may also pay to the appellant all  such sum of money as have be receive by they since the testator death by or  out of the stock in the coal trade or the produce or profit thereof and may  likewise assign to the appellant all such security as the testator be at his  death possess of in any land or hereditament in the say county of  Northumberland and Durham or either of they the respondent James Archibald  Stuart a infant by his guardian insist by his answer that the say deed of  appointment brown make by the countess of Bute his mother in favour of the  appellant be void and that she have no power by virtue of the testator will to  limit or appoint the colliery estate and premise in question to the appellant  for that although the testator have give such power of direct and appoint such  estate and premise as in the will be mention yet that such power be not  absolute but only a power sub modus and connect with a trust and control by a  subsequent part of the will wherein the testator request the countess his  daughter to direct the money arise from the say estate and colliery to be  apply in such manner as he have direct the same in default of her direction  and appointment and that such request ought to be deem as directory and  construe as legatory word of trust and ought to control the countess in the  execution of such power in favour of such person to who the testator direct  the same to go in default of her appointment and that he the respondent be by  virtue of the say will entitle thereto as tenant in tail on the death of his  say mother and he submit that in case the say brown er p appointment shall be  adjudge good and effectual how far the same ought to extend for that he have  be inform and believe that on the saint of December the account of the say  colliery be make up and adjust between the testator and his partner at which  time there be due from several person for coal sell by the partner pound S d  and that there be at the same time remain in the hand of messrs child and    the banker to the testator and his partner as the balance of their account  pound S d and in the hand of Mr Fetherstone the agent to the partnership pound  S d and that there may be due at the testator death other sum on account of  the say colliery and the respondent also submit whether in all event the  testator three part of the profit and balance of the say account so make up  and adjust between he and his partner in his lifetime and also onethird of any  other sum which may also be due at the testator death on the say partnership  account shall not be consider as part of the testator general personal estate  independent of the say colliery and insist that in case the testator be at his  death entitle to any sum of money secure by mortgage upon any estate in the  say county of Northumberland and Durham and the court shall be of opinion that  the say appointment be good and effectual yet that it ought not to be construe  in such a manner as to affect such sum so due on the say security by reason of  the locality of the land which be make a security for the same but that such  sum of money ought to be deem part of the testator general personal estate and  as such subject to the trust declare thereof by his will the respondent earl  Gower and sir Matthew lamb by their answer admit that they have act in the  trust of the will and submit to the judgement of the court how far the deed of  brown appointment make by the countess of Bute extend and the respondent  Edward Wortley the testator son and heir put the appellant upon proof of the  will issue be join in the cause several witness be examine on the part of the  appellant to prove the due execution of the testator will and also the  execution of the say deed of appointment and to show that the balance mention  in their respondent the infant answer be a necessary fund to answer the demand  on the partnership and a witness be examine on behalf of the respondent the  infant to prove the balance of cash on the partnership account to be as state  in his answer publication have pass the cause come on to be hear before the  Lord chancellor Henley on the saint and d of July when his lordship go through  the whole of the cause except the reply by the appellant counsel and then  state to they for their further consideration some matter which have occur to  his lordship as to the construction of the testator will upon the question  under consideration and that the appellant counsel may have full opportunity  to consider the same his lordship be please to adjourn the reply to the that  of the same month and afterward take time to give his opinion until the d of  November follow when his lordship be please to declare that the testator do  not intend to empower the countess of Bute his daughter to direct the trustee  to dispose of the premise for her absolute benefit or without consideration  but that he intend only to give her a power to have the same sell and that the  money arise therefrom shall be apply in the purchase of land in the same  manner as the clear profit of the premise in case she have make no appointment  and that therefore the appointment make by her to the appellant be void and he  therefore dismiss the appellant bill with cost to be tax as against the  respondent Edward Wortley and without cost as against the other respondent  from this decree the appellant think proper to appeal insist c York a  Wedderburn that the peculiar circumstance attend the estate in question which  upon a variety of probable event or sudden exigency may require the advance of  considerable sum of money for make new purchase or may create a necessity of  sell off parcel of land to answer the end of this partnership adventure tend  to make the management of it by trustee not only troublesome and hazardous but  incompatible with the nature of a partnership that these circumstance seem to  have induce the testator to devise his colliery different from any other part  of his fortune and he have therefore give to his daughter brown er p the  countess of Bute the absolute disposal of it the manner of do it be by a  direction to his trustee to convey and dispose of the same as his daughter  shall direct and appoint by write under seal in the presence of three witness  and the daughter be a marry woman she can not during the coverture exercise  her power of ownership so convenient in any other brown manner even over the  freehold colliery nor at all over the leasehold of which the great part of  this property consist that the power of dispose devise by the testator to his  daughter be not accompany with any trust and though he have request her to  direct the money arise from the same to be apply in such manner as the residue  of his personal estate yet that request can not raise a imply trust in her by  which her ownership shall be control because the testator himself have declare  that he have give the power to his daughter in order to prevent the expense  and trouble which must attend the management of affair of such a nature under  the direction of the court of chancery and this amount to the same thing as if  the testator have say in word I mean that my request shall not be construe  into a trust to control the power for take it to be the case of a trust either  express or imply it be plain in law that the jurisdiction of the court of  chancery will control it sandy the whole must be liable to account there but  it be submit that such a construction can not be make without contradict  express word which have confer a right of dispose so absolute that it be  impossible to say where the power end and the trust begin that the rule of  construe such devise which have obtain in similar case be that where a  testator bequeathe the ownership of land or a absolute power of appointment  uncontrolled by any express trust though accompany with a request as to the  disposition of the property or the exercise of the power a court of equity  will not presume that the testator intend to raise a imply or constructive  trust inconsistent with the express estate and interest devise and therefore  will not construe such bequest into legatory word of trust and accord to this  rule strengthen in the present case by the clear declaration that the testator  do not intend his daughter shall be consider as a trustee the request  accompany a devise of the absolute power of disposal can not be Obligatory and  amount in law as well as common language to no more than a bare recommendation  leave full power in the countess whether she will comply with it or not or in  what other way she will execute her power and adapt the execution of it to the  circumstance of her family and the dictate of her own prudence and honour if  the testator have only intend to give the countess a power to sell the premise  but that the money arise from the same shall be apply in like manner as the  residue of his personal estate the obvious method of effectuate that intention  will have be as in all such case by direct trustee to sell with her  approbation and declare a express trust of the money arise by such sale it be  however very observable that the testator have not give to his daughter mere  the power of sell in one place he have direct the trustee to convey and  dispose as she shall direct and in another he have declare that he have give  her the absolute disposal which power may be exercise by gift as well as sale  and be synonymous to ownership he brown be not only averse to the sale of this  part of his property which from its nature can not produce a price adequate to  the income it yield but from his wish express in the request if he have any  anxiety it be rather to have it so manage as to form a constant fund by the  accumulation of profit for increase that fortune which it have contribute to  raise so that whether the request in this case be Obligatory as a trust in law  and equity seem to be the sole question on behalf of the respondent Mr Stuart  for none of the other respondent contest the matter it be say t jewel g Perrot  to be apparent and manifest the view and intention of the testator and be the  general plan of his will to entail his whole estate real and personal on the  second son of his daughter the countess of Bute make her at most but tenant  for life and for perpetuate the same as much as may be in his daughter family  there appear a anxiety throughout the will he have make his daughter tenant  for life only of the westriding and northriding estate but not without  impeachment of waste for as the westriding estate be well wooded and timber he  have direct the money brown er p to be raise by sale of wood and timber after  deduct thereout two small annuity for life of pound each to be lie out in new  purchase of land of which she be to be again only tenant for life a house  which the testator have at Twickenham be direct to be sell and the money arise  by sale to be lie out in land to be settle in like manner the whole residue of  the personal estate be direct to be also lie out in the purchase of land of  which she be likewise to be only tenant for life the sum of pound give in the  form of a legacy to his daughter and to be pay to her own proper hand be  direct as to pound of it to be lie out in finish WortleyHall and pound the  residue thereof in furnish that house and the furniture to belong to and to be  use and enjoy as heirlooms with the house as far as the rule of law and equity  will permit and as to the colliery and the premise thereto belong and the  estate in Northumberland and Durham the subject matter of the present suit the  testator have direct that in default of the appointment in question the profit  thereof shall be lie out in the purchase of land of which his daughter be to  be only tenant for life which be only give her in default of appointment the  profit of the colliery and premise and of the coal trade that the testator be  apprehensive that the management of the colliery and coal trade may after his  death be too difficult for the trustee and that they may perhaps be unwilling  to execute the trust without proper indemnity and foresee that event may arise  which will make it more eligible and beneficial to his estate to have they  sell and convert into money and that the choice of continue to carry on or  sell they can be no where so proper lodge as in his daughter to who and to her  child not then capable of judge for themselves the whole benefit brown thereof  be give by the will he therefore for these reason give his daughter such a  power of disposal as will sufficient indemnify the trustee in act under her  direction and yet not in term that will compel her to make a sale at the same  time request her to direct the money arise from the same by which it appear he  mean a disposition for money to be apply in the same manner as he have direct  in default of her appointment and execution of the power thus he leave it at  her election either to carry on the work or direct a sale of they a power  which he do not lodge in his trustee not meaning however at all event to  oblige her to a sale which may have be attend with great inconvenience as  these be partnership work of a very extensive nature and where if there be to  be a sale at all event advantage may be take of that circumstance to the  prejudice of the estate but whether the work shall be carry on or the colliery  sell his intention be apparent that the money and produce arise therefrom  shall be apply to the use express in his will that this request of the  testator to his daughter be equal to a command it be a sufficient declaration  of his will and whether a testator use term expressive of his desire hope  request etcetera or word of command direction etcetera it be the same thing in  each case the testator intimate or express what his will be and that ought to  be observe and to prevail and in support of this doctrine and construction  there be many authority and judicial determination but there be no ground to  imagine or suppose that the testator by give his daughter a power of direct  the trustee to convey and dispose of the colliery and premise in question  intend to give her the absolute dominion and property of they it will be  repugnant to and inconsistent with the general plan and tenor of the will and  the express declaration of his reason and motive for entrust her with such a  power there be no express declaration or any intimation that by have such  discretionary power she shall have such dominion and property as there natural  and most certain will have be if the testator have so mean and intend and  especial when he be so express and anxious in the disposition of the rest of  his estate on the contrary she be not only require in case of disposal under  the power to direct the money which the testator consider as in the hand of  his general trustee to the same purpose as he have direct the profit in case  of no such disposal but in default of and therefore as it must be understand  until the exercise of such power she be only to have the profit of the  colliery and trade for her life and it will be absurd and inconsistent with  the idea or supposition of absolute dominion or property to give only brown er  p such a limit interest in default of appointment or exercise of the power for  it will be to suppose that the power be give for no other purpose than to  enable the countess of Bute to give away this valuable part of the testator  property which in default of her do so be to be settle in strict settlement  and in which brown she be in that case to take so limit and inconsiderable a  interest if the testator have intend that his daughter shall have the absolute  dominion and property and the whole beneficial interest in the premise in  question and that he vest the same in trustee on account of her be under  coverture it be natural to suppose he will have so declare the same as be  usual in such case and especial as in all other instance he have declare the  several interest which she take under his will to be for her separate use but  in the present instance he be total silent as to any interest she be to take  except as to the profit of the say colliery and premise in default of and  therefore until appointment upon the whole therefore and in every view it  appear that the countess be intend to have only a limit interest for life at  most in any part of the testator estate but that his great object be to secure  the whole of it after her death to the respondent her second son who for these  reason hope that the decree will be affirm accord after hear counsel on this  appeal it be order and adjudge that the same shall be dismiss and the decree  therein complain of affirm jour vol p