alexander v alexander July discuss in re kerr trust Ch d master of the roll  for Lord chancellor power to appoint among child see Maddison v Andrew Ves sen  et supplement p more especial Kemp v Kemp Ves butcher v butcher Ves and Ves b  c and Daubeny v Cockburn Meriv c each must have a part not illusory note it be  very observable that in the principal case no point be raise as to any  appointment be illusory whether do not claim more than her pound with the  interest vide Reg lib et Ves nor reversionary but a particular interest as for  life may be give to one such a power will not extend to grandchild vide t r  Cowp bro burr nor can a discretion be give to another to appoint but though  that will be void it will not devolve on the court which be only where the  power be well create but by accident can be execute by the party see Ves sen  where give to those not capable together with another who be capable the  latter will take the whole under such a power it can be give free from debt of  the appointee supplement James Alexander under power of appoint a real estate  to the use of such child and child c and where in default of appointment the  estate be settle to the use of all and every the child or child a exclusive  appointment to one be good there be a distinction between a power of  distribute personalty among young child and appoint a real estate the natural  construction of the former be to divide it as in general there be no other  provision of the latter to give it to one child only be a family estate per  Ashhurst just Durnf east in fisher and boil mich Geo d b r a exclusive  appointment under a power of appoint to and among such of his relation be hold  good report in Durnf east note f vern wms atk Mod by will bequeathe to two  trustee pound describe particular the fund of which it consist upon trust to  pay the interest and produce to his wife for life and direct they to place the  same out at interest with her consent and I give unto my say wife the absolute  disposal of the say sum of pound unto and among such child beget between we  and in such proportion as she shall by last will and testament or by any other  deed or deed write or write to be execute by her in her lifetime attest by two  or more credible witness direct limit and appoint then direct the trustee to  pay the same accord to such will or appointment and for want of such a will or  appointment that the say pound shall fall into and go in the same manner as  the residue of his personal estate but if his wife shall think fit to apply in  her lifetime any part of the say pound as a increase of any of the portion  give by the will to his say child or any of they for their better advancement  in marriage or otherwise in the world then the trustee shall out of the say  pound issue and pay such part thereof for the benefit of such child as his  wife shall by any write as aforesaid direct and appoint the mother make her  will there be then five of the child live she thereby recite her power and in  pursuance thereof give to her daughter whether pound to be pay out of the sum  of pound which she compute to be the only remain sum of pound vesey senior  after deduct what she have before pay to some of her child and as to the  remain produce after payment of the say pound she dispose to her daughter mary  and son James for their own respective use each one full four part thereof the  whole into four part equal to be divide and to the say mary and James also the  other remain twofourth part but as to those twofourth part upon the trust  followings videlicet as to one of the same to place out or continue on  security during the life of their sister her daughter Catherine wife of Thomas  clipperton and to pay the interest thereof to such person or person and for  such purpose as she shall from time to time direct and in default of such  direction into her own proper hand my will be that such interest shall be for  her separate use and disposal and not subject to the debt control or  engagement of her present or any future husband and upon trust at her decease  to pay and apply the principal of such four part to such child or child vesey  senior er p if any as she shall happen to have live at her decease in such  manner as she shall by write under her hand in nature of a will or otherwise  appoint and for want of such appointment to such child if but one if more to  they equal in default of such child or child the principal of such four part  if she survive her husband to be whole pay to her for her only use and benefit  but if she die in his life the say principal at her decease to go to the say  James and mary yet for their own respective benefit only as for onethird part  thereof to each of they and as to the other three part thereof and also as the  other of such remain twofourths part whereof no disposition be herein yet make  upon trust to pay and apply the principal and interest thereof or any part of  either from time to time weekly or otherwise in such manner as say mary and  James their executor administrator or assign shall in their discretion think  most beneficial for the personal support and maintenance of their brother my  son Francis and his wife and child but not for the payment of his debt sir  Thomas clarke say there be some particularity in the case and he will consider  of it and the next day deliver his opinion consider the nature of the power  the wife be confine as to the object to give it to but leave to her discretion  as to apportion it among they in consequence of this she be oblige to give the  whole among the child every child must have some such share as she please  provide not illusory which have be the language of the court as to such  appointment see Kemp v Kemp Ves et vide ante Ves sen if then she may apportion  as she please it be necessary imply in that vesey senior that she may  apportion it out in such manner as she please for it be such kind of  proportion as she shall think fit and therefore the power in the first part of  the will do not differ from the latter part where the word manner be add for  the first word mean kind of proportion this be the nature of the power brown  consequent she may give a interest for life in a particular share to one child  or limit the capital of the same share to another or even go far as to limit  it to a three child upon a contingency provide she dole out the whole in this  various way among all the child only one restriction she be under that she can  not have give any one child mere a reversionary interest brown for it be  intend as a provision and therefore it will be deem illusory the power do not  require that she shall dole it out in gross sum and give each child a absolute  interest in that gross sum for which among several other case Thwaytes v day  for be a strong authority that such a power will enable the give particular  interest and to apportion such interest as a general power of apportion land  itself will as this be necessary imply there be nothing in the objection that  where this be design the power be more extensive and word add as this be the  nature of the power consider what be do under it it be observable that in  consequence of the nature of the power the mother have give to each of the  five child then alive a share in possession not mere a reversionary interest  which I shall have doubt whether it will be good the pound to whether and the  onefourth of the residue to James and the other four to mary absolute be  undoubted good so be the interest to Catherine for life in the other four part  and the give it to her separate use be so far from be a objection that it be  more strict carry into execution the will of the father a strong execution of  the power agreeable to his intent but next the provision for the child of  Catherine be not a good appointment the mother have a power to do something  similar to this but in another way for though that power will have enable her  for better advancement in marriage to make a strict settlement that be  implicit contain in that power to limit any share she think fit to give for  advancement of marriage in that way but she have not take that method for she  have make a disposition of it by her will and therefore it must correspond  with every circumstance in that will No case will under a power to appoint to  child warrant to give to grandchild though a appointment to grandchild under  such a power be void yet it ought to prevail so far as the power extend Cowper  brown where sir Lloyd Kenyon hold the excess only be void burr see t r et Ves  sen there be a case in point to that if it need it in Vernon but it clear can  Thwaytes v day be more like a authority on that side of the question but that  be no authority to contradict the reason of the vesey senior thing that the  appointment to the child be bad next as to the contingent interest to  Catherine if she have no child and she survive her husband but in default  thereof twothirds to James and mary the other three to go over with vesey  senior er p the other four to Francis suppose Catherine leaves child at the  time of her death it be impossible any of these limitation over shall take  effect it will fall into the residue because it be no appointment be only a  partial appointment of that four give only to Catherine for life and the child  though they can not take themselves will yet prevent the limitation over but  the most material limitation be that give last to Francis his wife and child  consider the effect of this appointment first on a supposition that this  discretionary power be good and have be exercise by James and mary it be clear  they can not have duly exercise that power without give a share to the wife  and child of Francis otherwise it be not consistent with the mother intent nor  can I say they can discreet have give the whole to Francis and it be clear  that if they have exercise this power to the wife and child it will have be  bad if they have give any thing as they must something in consequence of their  power it will have be give so much contrary to the intent and effect of the  power but I be clear of opinion this discretionary power be not good because  if there be a power to a of personal trust or confidence to exercise his  judgement and discretion a can say this money shall be appoint by the  discretion of b for delegat non to be able refer to it be determine by Lord  chancellor in attorneygeneral v Berryman Feb where a personal estate be give  to such charitable use as one dr Berryman shall appoint he direct the money to  be apply as another dr Berryman his brother shall appoint which the court will  not allow next consider the consequence of this if the power can not be  exercise will it devolve on the court it clear can ante Ves sen for power  devolve on the court be power well create in the original but such as by  accident as the death of person can be execute by those person in such case  the court must be govern by the statute of distribution per Lord Mansfield  Durnf east note brown there be a natural substitution of the court in the room  of those person but if a power be void in the original there be nothing to  devolve on the court it be the same as if the mother have give it herself  indefinite for the benefit of Francis his wife and child lie the discretionary  power out of the case as if never insert in the will and certain so far as the  wife and child be to have the benefit of it that will not be good nobody can  say how much the wife and child be entitle to because it be give indefinite  have it be free from that circumstance of uncertainty how much each be to take  it will be void as to the wife and child just as that give to vesey senior  Catherine suppose she have give it to the husband his wife and child in gross  sum absolute equal to be divide that will have be bad and a excess of her  power and if it have be such a partial appointment so far as void it will have  fall into the residue the material question then be as to the consequence of  this whether the wife and child be incapable of take will carry the whole to  Francis or whether any medium can be find out it be say to carry the whole to  Francis because the execution of a power may be good in part and bad in part  and that even at law a irregular execution of a power will be support and not  amount to a execution at all Ves sen and that in many case only the excess of  a power will be void the residue good but see in Daubeny v Cockburn Meriv c c  all that I admit first that the execution of a power may be good and bad in  part but the consequence of this will be various as the circumstance of the  case be as suppose a power to a man to appoint pound among his child he  appoint pound among the child and pound among other who be stranger the  appointment of the pound will be so absolute void as that it will not be  prevent from go over if limit over for want of appointment as if he have make  none and something of this have happen in this case or may happen as to  Catherine on the other hand if the father give the whole pound to his child  and annex a condition that they shall release a debt owe to they or pay money  over the appointment of pound will be absolute and the condition will be only  void and the boundary between the excess and proper execution be precise and  apparent the ground and principle of all this be that where there be a  complete execution of a power and something ex abundant add which be improper  there the execution shall be good and only the excess void but where not a  complete execution of a power where the boundary between the excess and  execution be not distinguishable it will be bad suppose one have power to  jointure a wife for life and appoint to her for ninetynine year if she so long  live as in the case of Mr Newport at law it be hold in b r to be void but in  equity good pro tanto because he have do less than vesey senior er p his power  and it clear appear how much less the boundary be clear and distinguishable if  the wife shall outlive the ninetynine year the estate as to the residue of her  life will be undisposed and will go over to the remainder or other person  entitle now to put a case vice line suppose a power to lease for twentyone  year and lie lease for forty that shall be good for the twentyone because it  be a complete execution of the power and it appear how much he have exceed it  if the court can see the boundary it will be good for the execution of the  power and void as to the excess now be this appointment for benefit of Francis  his wife and child a complete execution as vesey senior to Francis for that be  contend for I think certain not for the wife and child be to have something  and so far as something be design for they it be bad and no possibility to  distinguish how much she have exceed the power it fall therefore within  neither of those circumstance which be essential necessary but it be proper to  consider if there be no other way to make this good because the court will  strong lean in favour of that side if it can I own I incline to think there be  a method suppose the mother instead of use the word she have have give this  onefourth to be apply in such way as most beneficial for her son and his wife  and child if they shall by law be capable I shall not have doubt but that as  the wife and child be not by law capable it will be absolute to Francis and  the question be whether there be any difference this bear a analogy to what  the disposition by the mother will be if she have give it to a son by name who  never appear to have existence or be never capable of take if give to these  four indefinite and three be incapable of take the four will have the whole  must take such as the other be incapable of take it fall within the reason of  the late case of Humphrey v tailor where a personal estate be give to two in  jointtenancy one be outlaw and therefore the testatrix make a codicil whereby  she adeemed what be give to one of the two the question be whether the other  jointtenant shall take only a moiety but the court hold he be to take what the  other do not they be to take the whole between they the mother never design  this four part shall fall into the residue and it will be extreme hard that it  shall then he will be entitle to the whole of that as to the subsequent  restraint that it shall be exempt from debt she have there exceed the power  give by the law as in the other case she exceed the power give by her husband  for it will be leave to take the fate of be his property and subject to be  come at as his creditor shall think fit I declare therefore that the execution  of the power so far as it concern other person than the child of the testator  be void and of no effect see headnote Ves sen and Ves note at the bar be cite  the case of Lord Conway who have power to grant lease of his estate by one  instrument grant several some of which be not within the power and though all  be within the same instrument they be consider as several lease and it be send  to the master to separate they also the dean and chapter of saint Paul case to  show that where a power exceed be void at law in the whole this court will  hold it good as a agreement and direct a specific vesey senior performance  restrain the contract accord to the power as be do there Reg lib a fol vesey  senior er p