Mr. Willcock, Q. C., and Mr. Wodehouse for the Plaintiffs, the surviving daughters of the testatrix.

Mr. Daniel, Q. C., and Mr. Surrage for some of the Defendants.

Mr. E. F. Smith, for the assignees in bankruptcy of the husband of Hannah Westcott Prior, argued, that the restraint upon anticipation of the daughters' life interests would have infringed the rule against perpetuities, if inserted in the settlement, and that it therefore rendered the appointment for them void.

Mr. Smale for other parties.

Mr. Willcock in reply.

1853.

FRY

v.

CAPPER.

Argument.

VICE-CHANCELLOR SIR W. PAGE WOOD:

In this case, there has been an appointment for the benefit of married women, for their separate use, with a clause restraining them from anticipation; and this is said not to be authorised by the power, because, although the appointor might have limited a share in the fund for life to a daughter who was unborn at the creation of the power, inasmuch as such daughter, together with those entitled to the fund subject to her life interest, might at any time dispose of it; yet, by an appointment in this manner to a married daughter, she is restricted, probably during her whole life, from disposing of the fund, and it is therefore tied up for a period which infringes the rule against perpetuities; and it is said, that the appointment is consequently void.

I should feel difficulty in deciding this question adversely to the appointment, looking to the decision in Thorn

Judgment.

But,

ton v. Bright (a); for, in that case, although this particu-
lar point does not seem to have been argued, there was
precisely the same limitation made by a will in execution
of a power in favour of a married woman who was un-
born at the time of the creation of the power; and the
appointment was decided by Lord Chancellor Cottenham
to be a valid exercise of the power. Therefore, indepen-
dently of principle, it would be difficult for me, after
that decision, to hold this appointment to be bad.
upon principle, I think that Mr. Willcock has given the
proper answer to the objection. In the case of an ap-
pointment under a power, the Court looks to the scope and
intent of the power; and, in appointments by will (b) of
real estate (c), has, by the doctrine of cy près, given effect
to them against the very words of the instrument, and has
enabled grandchildren, who were not objects of the power,
to take under a limitation to a child for life, with remain-
der to the children of such child, by treating the first taker
as a tenant in tail; and because the words of the appoint-
ment would otherwise have been wholly inoperative, the
Court has thus given effect to it in the mode in which
it can take effect legally (d). Therefore, in an instru-
ment made in execution of a power of appointing among
children only, if the Court finds an appointment of a
share to one child, with a direction that such share shall
be dealt with in this way, the Court may reject that part
of the limitation which exceeds the legal limits. Ac-
cording to Bray v. Hammersley (e), this is in other re-
spects a good appointment to the children who are objects
of the power (f); but if the restriction be not rejected, it

(a) 2 My. & Cr. 230.

(b) Brudenell v. Elwes, 1 East,

451.

(c) Not of personalty: Rout-
ledge v. Dorril, 2 Ves. jun. 364.
(d) Pitt v. Jackson, 2 Bro. C.
C. 51.

(e) 3 Sim. 513; affd. in D. P.

nom. Bray v. Bree, 2 C. & F. 453.

(f) The Vice-Chancellor had decided this upon the other objections to the appointment, by referring also to the authorities of Boyle v. The Bishop of Peterborough, 1 Ves. jun. 299; and Butcher v. Butcher, 1 V. & B. 79.

is said that it will make the whole void.

Rather than decide that, the Court will reject the limitation, and thus leave the rest of the appointment valid. In the words of Lord Mansfield, in Chapman v. Brown (a), "Where there is a limitation for life to a person unborn, with remainder in tail to the first and other sons, as they cannot take as purchasers but may as heirs of the body, and as the estate is clearly intended to go in a course of descent, it shall be construed an estate tail in the person to whom it is given for life." And by analogy to this cy près doctrine, although the donee of the power cannot appoint to grandchildren nor to persons unborn in the manner in which he has attempted to limit the property, yet the Court will so modify the limitation as to make it effective in the manner in which it may take effect according to the power. The argument on this point, in Thornton v. Bright(), suggests the decision to which the Court would probably come, that, if necessary, the Court would reject this limitation, and treat the appointment as being a settlement for the benefit of the daughter, without the restraint upon anticipation. The point is ingenious, and would deserve, perhaps, more consideration if it were open to me. However, if Thornton v. Bright (b) had not decided the question, I think that I should have come to the same conclusion independently of that authority.

There must, therefore, be a declaration, that the will of Honnor Fry is a valid execution of the power of appointment.

(a) 3 Burr. 1626, cited 2 Sugd. Pow., 7th edit., p. 59.
(b) 2 My. & Cr. 230.

1853.

FRY

ย.

CAPPER.

Judgment.

1853.

Dec. 16th.

Will-Con-
struction-
Power of
Appointment

not governed by
substitutionary
Clause.

Bequest of resi

due in trust,

after the death

of the testator's

wife, to be di

vided amongst

all his children, including his son A. if then living, in such

manner and in such propor

tions as the tes

tator's wife

NEATHERWAY v. FRY.

JOHN FRY, by his will, dated the 26th of August, 1803,

appointed his wife Honnor executrix, and Booth Hancock and John Capper, or the survivor or survivors of them, executors of that his will; and after appointing them guardians of his children, he confirmed the settlement of a sum of stock made on his marriage with his said wife; and after giving certain specific and pecuniary legacies to his said wife, and to Alfred Augustus Fry, his son by a former marriage, the testator disposed of the residue of his estate in the following words: "I give and bequeath all the rest and residue of my effects not already especially given and bequeathed to my said executrix Honnor and my said executors Booth Hancock and John Capper, or so many of the three as shall survive me, in trust for the following especial purpose, that is, that when all the previous bequests and purposes of this will shall be completely fulfilled, the remaining sum of money shall be, by my said trustees or the survivor or survivors of them, invested in such way as to them shall seem most beneficial, and the interest and income thereof shall be paid as it arises to my said wife Honnor, for the maintenance, support, and education of all our children, during the term of my said wife's natural life; and the principal thereof shall be divided, at her death, amongst all my children, including my son Alfred Augustus aforesaid, if then alive, and also including, if then alive, our daughters Honnor Frances, the death of the Hannah Westcott, Mary Craig, Anne Jane, Julia Maria, and Susannah Hancock, together with any other child

should by will appoint, provided that the share assigned to A. should

not be less than

those of any of the other chil

dren; and, in default of appointment, to be divided

equally among

all the testator's

children living

at his wife's

death, including

said son A.

Moreover, if

any child should

happen to die previously to

testator's wife,

leaving chil

dren, such children to have the "share" of their late parent. And if all the testator's children should die under age, and without leaving children, gift over. The wife appointed the fund by will amongst all the children who should be living at her death. A. died in her lifetime, leaving children:-Held, that the power was well exercised in favour of the surviving children of the testator, and that the clause commencing "moreover" did not apply to the preceding limitation, but only to the gift in default; and therefore A.'s children were properly excluded. Fox v. Gregg, 2 Sugd. Pow., App., No. 23, distinguished.

and all such children as may be hereafter born of my said wife Honnor before my death, if then alive, or any child or children that may be born of my said wife Honnor within nine calendar months next succeeding the day of my decease, in such manner and in such proportions as my said wife Honnor may by will direct; provided only, that the share or part assigned to my said son Alfred Augustus shall not be smaller or less than the share or part assigned to any one of my said wife Honnor's own children; and that if my said wife Honnor shall neglect or omit to make any such appropriation thereof, then and in that case it shall be divided equally, share and share alike, amongst all my children living at the time of my said wife Honnor's decease, including my said son Alfred Augustus, if then alive. Moreover, my mind and will is, that if any child or children should happen to die previously to the death of my said wife Honnor, but having been married and leaving a child or children issue of such marriage, then such child or children shall have and enjoy the part or share, parts or shares, respectively of their late parent so dying before the death of my said wife Honnor. And further, I do will and direct, that, should all my children die under age, and without having been married, or without having had children who shall have survived them, and neither I nor any of my children should leave a posthumous child lawfully begotten in wedlock, then and in that case that all the clauses in this my last will and testament, intended for the benefit of any such child or children, shall be construed for the sole use and benefit of my wife Honnor aforesaid."

John Fry died in 1810, and Honnor Fry, Booth Hancock, and John Capper proved the will on the 3rd of November, 1810.

Honnor Fry made her will, dated the 1st of November,

VOL. I.

E. K.W.

1853.

NEATHERWAY

v.

FRY.

Statement.