Child a sufficient reason for giving such a sum might be proved (o).

If, where there is a Power of disposing among younger Children, in such shares and proportions as the Party should by Deed or Will appoint, a younger Son is provided for amply by a Fortune aliunde, by obtaining a lucrative situation, or the like, it may be a ground for an Appointment so unequal that it might be otherwise deemed illusory; but that cannot be considered as a provision which is a mere expectancy, depending on the will and pleasure of another; and an Appointment cannot be deemed good or bad according to the manner in which that pleasure may be afterwards exercised. If a Father supposed that provision would be made for one of his Sons by his Brother, which expectation might be finally disappointed, a very unequal appointment made under that expectation, however founded and however reasonable at the time, could not be supported (p).

If a Power of Appointment be in part defectively executed, the whole of the Fund will not be distributable as in default of Appointment; but so much of the Fund which is well appointed will stand, and the remainder divided as in default of Appointment (q).

It has been long settled that an Appointment cannot be made to a deceased Child (r).

(0) Spencer and Spencer, 5 Ves. 368.

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

(q) Bristow v. Warde, 2 Ves. 350. Wilson v. Pigott, ibid. 357. Routledge v. Dorril, ibid. 360,

which last case is observed upon in Leake v. Robinson, 2 Meriv. 391.

(r) Maddison v. Andrew, 1 Ves. 57. Butcher v. Butcher, 1 Ves. & Bea. 91.

After a partial execution by Baron and Feme of an original Power, a secondary Power to arise in default of the execution of the original Power cannot be executed (s).

If under a Power of Appointment among Children a substantial share is given to each Child, it may be by different Instruments, at different times (t). A Power, for instance, of appointing a Fee may be executed at several times-at one time to pass an Estate for Life, and the Fee at another (u). So Powers of Revocation and Appointment may be executed at different times over different parts of the Estate that are subject to the Power (x).

Wherever a Power is given to appoint to and among several Persons, the Power is not well executed unless some part is allotted to each (y).

In some of the Cases it has been determined, that where there is a Power to divide among Daughters in such proportions as the Wife should think fit, it must be equally, unless a good reason appeared (z); but that is not now the Rule of the Court. But, under words of that sort, if some very good reason does not appear for giving a very small sum to one, such a disposition will not be allowed (a). If, for instance,

(s) Simpson v. Paul, 2 Eden's Rep. 37.

(t) See Wilson v. Pigott, 2 Ves. 354. Simpson v. Paul, 2 Eden's Rep. 37, and Digge's case, 1 Co. 173, there cited; see also Doe v. Milborne, 2 Term Rep. 721.

(u) Borcy v. Smith, 1 Vern. 85; and see 2 T. R. 725. Zouch v. Woolston, 3 Burr. 1136.

(x) 4 Cruise's Digest, 245, and Digge's case, 1 Rep. 173. (y) Menzie against Walker, For. 72. Vanderzee v. Aclom, 4 Ves. 784.

(z) Astry v. Astry, Prec. Ch. 256.

(a) Kemp v. Kemp, 5 Ves. 859; and see Gibson v. Kinven, 1 Vern. 67, and Maddison v. Andrew, 1 Ves. 59. Burrell v.

the Person having the execution of the Power has provided for one of the objects of it in some other way, that is sufficient, and the Appointment will not be considered as illusory (b).

If the words of the Power be," then to be disposed of amongst her children, as she shall think

proper," a series of Judges, from Lord Nottingham to the present time (c), have held that they amount to a gift to all the objects; and the exclusion of one is an undue execution (d). If the words of the Power are, "to such of her Children as she shall think proper," " that would give a latitude to appoint to one only (e). So where the words are, "to one or more of his Children," or, "to any of his Children (f)," or, "to and amongst all such Child or Children (g)," or, "amongst all or such of his Children (h)," or,

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to such of my Children (i)," they have been held to show a manifest intention to give a Power to appoint to any one Child that should answer the description (k).

Powers of this description cannot be delegated (1). A Power of appointing among Children will include Children by any Marriage (m).

(b) Kemp v. Kemp, 5 Ves. 861. Bristow v. Warde, 2 Ves. jun. 336.

(c) See Gibson v. Kinven, 1 Vern. 66. Menzey v. Walker, For. 72. Maddison v. Andrew, 1 Ves. 57. Alexander v. Alexander, 2 Ves. 640.

(d) Kemp v. Kemp, 5 Ves. 856, 7.

(e) Thomas v. Thomas, 2 Vern. 513.

(f) Tomlinson v. Dighton, 1 P. Wms. 149.

A Power to make a Jointure, if fraudulently exercised, will be relieved against. As, where a Jointure is to be made in proportion to the Portion to be received, the transaction must be fair, bona fide, without fraud and collusion, not a nominal but a real Portion. It often happens a Man marries a Lady with a small Portion, and to warrant a Jointure, he or his friends advance Money to make up that a nominal Portion, afterwards taking it back; that is a Fraud. So if the Wife has the requisite Portion, and it is settled to her separate use, that is not allowable; but wherever the Portion of the Wife is stipulated to be applied in a proper and reasonable manner, in the usual way of settling for the benefit of the family, that will be considered as a Portion received (n).

A Jointure of a "clear yearly Sum," means clear at the time of making the Jointure, and not that it is to be so during its continuance (o). The term clear is adjudged to mean clear of encumbrances, and all other charges which by the course and usage of the country in which the Lands lie ought to be borne by the Tenant; but subject to the Land-Tax and all other outgoings, which according to such course of the country ought to be borne by the Landlord (p).

The Books abound with a variety of Cases (q) which have been considered as a fraud on the Custom of London; but the Statute of 11 Geo. I. c. 18. s. 17, having enabled Freemen of London "to give, devise (r), will and dispose" of their Personal Estates, "as

(n) See Earl of Tyrconnel v. Duke of Ancaster, 2 Ves. 501, 2.

(0) Ibid. 502.

(9) See Broers v. Fairbeard, 2 Vern. 202. Turner v. Jennings, 2 Vern. 612, 685, and other cases.

they shall think fit," such cases can now seldom, if ever, arise.

Fraud occasioned by preventing the execution of Deeds will be relieved against in Equity. As, where a Recovery was prevented by a Person, with a view that the Estate should devolve upon another, with whom he was connected, Lord Thurlow considered it as against conscience that any one should hold a benefit which he derived through the fraud of another (s).

It has been doubted whether on the Sale of a Ship the want of an Indorsement upon the Certificate, as required by the Register Acts (t), though occasioned by fraud, can be remedied in Equity; so imperative are the words of the Acts (u); and in some recent cases it has been held that under such circumstances no relief can be given on the ground of Fraud or accident (x).

Where an Heir apparent (y), or Devisee, prevents a Testator from charging a Legacy, by telling him it was unnecessary to give himself that trouble, and

of a Ship at Sea is made, it is prudent, to prevent any fraud in the Vendor, by refusing to indorse the Certificate ten days after the arrival of the Ship, in addition to the Bill of Sale to have a power of Attorney to sign an Indorsement on the Certificate; which power would not be revoked by the bankruptcy of the Vendor, subject to the execution of the power, but previous to the Indorsement. See Dixon and others v. Ewart and others, 3 Meriv. 322. (y) See Chamberlaine v. Chamberlaine, 2 Freem. 34.