from him to a greater amount than the sums advanced, the Bond was held to be obtained by parental influence, and it was not allowed to stand as a security, even for the sums advanced, but was set aside altogether (p).

If a Warrant of Attorney (q), or a Compromise, be obtained from a Man in Gaol, it will not, it seems, be good, unless he has proper advice and assistance (r), the presence of Counsel for instance (s).

Frauds on Powers are often the subject of Relief in Equity.

A Party, for instance, will not be allowed to execute a Power for his own benefit, which was intended for the benefit of others; as where a person having a Power of Appointment amongst Children, and thinking one of his Children was in a consumption, appointed in favour of that Child, with a view, as the Court supposed, to take the chance of getting the Money as Administrator of the Child, the Appointment was set aside (t). So, when a Parent having a Power to appoint the Estate to any of his Children exclusively of the others, appoints to one, upon a bargain made before-hand with that Child, that he shall pay a consideration for it, a Court of Equity will relieve against the Appointment; and the same relief will be administered against a Purchaser with notice of the Fraud (u), or without notice of the

(p) Carpenter v. Heriot, 1 Eden, 328.

(q) Roy v. Duke of Beaufort, 2 Atk. 193.

(r) Hinton v. Hinton, 2 Ves. sen. 635

(s) Roy v. Duke of Beaufort, 2 Atk. 193.

(t) See what is said in Mac Queen v. Farquhar, 11 Ves. 479.

(u) Sugden on Powers, 330, and doctrine adopted in Palmer v. Wheeler, 2 Ball & Bea. 30.

Fraud, if the Purchaser has not the legal Estate (x). But the Court will not act against a Title under a Power upon a mere suspicion that the Power had been fraudulently exercised (y): as where there was a Purchase under the Execution of a Power of Appointment by a Father, subject to Estates for Life in him and his Wife, in favour of their Son; all three joining and receiving the Money, the fair value, which is presumed to be received according to their Interests in the Estate, and the Purchaser not bound to see to the application, and the transaction appearing fair both upon the Instrument and the abstract, it was held that the Purchaser could not object to the Title on the ground of a fraudulent execution of the Power (*).

A Child giving a consideration for an Appointment in its favour is a fraud in the Appointer and the Appointee, both on the other objects of the Power, who might not have been excluded but for such Agreements, and also upon those who are entitled in default of Appointment; for non constat, the Father would have appointed at all if there had been no such Agreement; nor can a purchaser for a valuable consideration, without notice, under the appointment, maintain his purchase against the person entitled under the settlement in default of Appointment, who has the legal Estate in the Fund, the subject of the Appointment (a).

Where a Party interested in the non-execution of

(y) See what is said in Mac Queen v. Farquhar, 11 Ves.

(z) Ibid. 11 Ves. 467.

(a) See Daubeny v. Cockburn, 1 Meriv. 626.

a Power prevents a strict compliance with the circumstance required in the execution of the Power, there, if the person who has the power does any act that plainly evinces his intention to execute it, such act will in Equity be deemed a good execution of it (b). As where the Remainder-man gets the Deed containing the Power into his possession, and will not allow the Tenant for Life to see it, the Tenant for Life may execute Conveyances; and though he does not pursue the terms of the Power, yet Equity will relieve, even in favour of a volunteer; the Remainderman not being allowed to take advantage of his own wrong (c).

So if a Wife having a Power is desirous of executing it, but is prevented by her Husband, Equity will relieve (d).

Though there be a Power in a Settlement to raise a portion for a younger Child, at such time as the Parent should direct, the Parent cannot direct it to be raised at an early age, fourteen for instance; for this is against the nature of the Power. Such a Power only enables the Parent to raise it in his own. Life, if it should be necessary. It would be proper so to do upon the Daughter's Marriage, or for several other porposes (e).

The Cases relative to illusory Appointments under Powers have created much difficulty in the minds of Judges, and great contrariety of opinion.

(b) Sugden on Powers, 302. Cruise's Digest, 4th vol. 276, 2d edit. 3 Cha. Cas. 67.

(c) Cruise's Digest, 4th vol. 276, 2d edit. Gilb. Chan. 306.

At

(d) Sugden on Powers, 302. Pigot v. Penrice, Com. 240. Prec. Ch. 471, there cited.

(e) Lord Hinchinbroke against Seymour, 1 Bro. C. C. 395.

Law, if some share, however small, be allotted, the Appointment is effectual (f); but in Equity the doctrine is very different. There an illusory Appointment is considered as a Fraud (g); and it is there held, that if a Person has a Power of Appointment among Children, or other objects, in such shares, manner, and form, and at such times as he thinks fit, he must make a fair, substantial, reasonable, and not an illusory Appointment; and of this the Court will, on a Bill filed for that purpose, form its Judgment (h). This doctrine, reluctantly adhered to in conformity to Precedents, seems to have overturned the principle laid down in several other cases (i), where the Court, from the difficulty of determining what is an illusory Appointment, has surrendered all discretionary authority on the subject, and has said, in determining what is illusory, that it will go as far as it is bound by Authority, but no farther; or in other words, that where the sum appointed in any case is not so small in proportion to the whole sum to be appointed, as in former cases where the proportion given has been held to be illusory, the Appointment is valid.

A Person having a Power of Appointment amongst Children, the terms of the Power compelling him to give something to each Child, is a Trustee, and must execute the Trust reposed in him, pursuant to the

(f) Vanderzee v. Aclom, 4 Ves. 785.

(g) Boyle v. Bishop of Peterborough, 1 Ves. jun. 310.

(h) Bax v. Whitbread, 16 Ves. 22. S. C. MS; and see particularly Vanderzee v. Aclom, 4 Ves. 784, 5. Butcher v. Butcher, on appeal, 1 Ves. & Bea.

79, &c. Colman v. Seymour, 1 Vez. 211; and see Prec. Ch. 256, and Cracker v. Parrott, 1 Chan. Cas. 228.

(i) Butcher v. Butcher, 9 Ves. 383. Moccata v. Lousada, 12 Ves. 123, and Dyke v. Sylvester, ibid. 126.

intent of the Trust; he cannot execute it so as to leave one of the children without provision, for that would be contrary to the intent of the Trust. It has been generally said, that such a Power is intrusted to a Parent because he is likely to know best the wants of his Family; as circumstances may arise which could not be foreseen when the Power was given, and to apportion the provision made for his children accordingly; and if he properly executes his discretionary Power according to existing circumstances, mere inequality, however gross, will not vitiate the Appoint

ment: But when he acts from mere caprice, or mistake, and places one of the Children in such a situation that the provision intended for him amounts to nothing, the reasoning fails on which so gross an inequality which renders the Appointment in his power merely illusory might have been supported, and the Appointment must be deemed bad (k).

If an Appointment be determined to be illusory, and therefore proper to be rectified, the Court, it has been holden, cannot do otherwise than by decreeing an equal distribution (1), and giving the property as in default of execution of the Power (m).

Where, upon the face of the Appointment, a sufficient reason has appeared why a nominal Sum is given, it has been held to be effective (n); and Lord Alvanley was of opinion, that as between Parent and

(k) Lysaught v. Royse, 2 Sch. & Lefr. 154.

(1) Gibson and Kinven, 1 Vern. 67, last edition; and see Spencer v. Spencer, 5 Ves. 362.

(m) Pocklington and Bayne,

(n) Bristowe and Ward, 2 Ves. 336. Long and Long, 5 Ves. 448; and see Kemp v. Kemp, 5 Ves. 859. Boyle v. Bishop of Peterborough, 1 Ves. jun. 310. Spencer and