1840. BURROUGH v. PHILCOX. LACEY v. PHILCOX. favour of the right objects; and in the latter, a case which arose upon petition only, the fund in question had been derived from the testatrix's property generally, and the consequence of a different determination would have been, that there would be an intestacy, which the Court is always anxious to avoid; and the supposed power, being required to be exercised in favour of all the children, was much more in the nature of a trust than an exclusive power of selection, such as that given in the present case. They also relied on Bull v. Vardy (a), and Sale v. Moore (b); and referred to Grieveson v. Kirsopp (c), Moggridge v. Thackwell (d), Harland v. Trigg (e), and Countess of Bridgewater v. Duke of Bolton (g), and the cases on this subject collected in Sugden on Powers. (h) Mr. Hodgson (in the absence of Mr. Stuart), contrà, for parties claiming as objects of the power, argued that the interest taken by Ann Fox Walton was a species of ownership which might be made the subject of a trust, and had been made the subject of a trust: That there might well be a limit of a power as of an estate; that the testator's words "then to be disposed of as hereinafter mentioned" were imperative, and strongly marked his intention; and that, in reality, there was no substantial difference between the expressions he had used, and a declaration that the property should be held in trust for such of his nephews and nieces and children of his nephews and nieces as the survivor of his two children should appoint, which would, undoubtedly, create a trust: That the testator would not have vested the legal fee (a) 1 Ves. jun. 270. (c) 2 Keen, 653. (d) 1 Ves. jun. 464, (e) 1 Bro. C. C. 142. simple (h) Vol. ii. p. 173, et seq. 1840. BURROUGH V. PHILCOX. LACEY v. simple of the real estate in trustees, if he intended that, after a certain series of limitations ending in a power, the estate should descend to an heir at law: that the construction contended for on the other side would strike out a great part of the testator's will: That as the gift in Ann Fox Walton's will to the children and grand- PHILCOX. children of Ann Hull the testator's niece was bad, so far as the grandchildren were concerned, the Court would hold it void altogether: for it could not distinguish the aliquot shares given to children and grandchildren. He relied upon Harding v. Glyn, Brown v. Higgs, and Witts v. Boddington (a), as stated from the Registrar's Book by Lord Alvanley in Brown v. Higgs (b), Venables v. Morris (c), Brown v. Pocock (d), and Grieveson v. Kirsopp (e). He submitted that it was a fallacious mode of expression to say, as had been said, in speaking of Brown v. Higgs, that the Court sometimes read "or" as "and;" it should rather be said, the Court sometimes considered "or" as being used in the conjunctive. He said that the discrepancy between the cases of Harding v. Glyn and The Duke of Marlborough v. Lord Godolphin had been disposed of by Lord Eldon, in his observations towards the close of his judgment in Brown v. Higgs. Mr. Bethell, Mr. Loftus Lowndes, Mr. Sharpe, Mr. Reynolds, for other parties in the same interest. Mr. Norton for the trustees, Burrough and Peyton. The cases of Grant v. Lynam (g), Walsh v. Wallinger (h), Birch v. Wade (i), Forbes v. Ball (k), and Kemp v. Kemp, (a) 3 Bro. C. C. 95. (b) See 5 Ves. 503. (c) 7 T. R. 342, 438. (d) 6 Sim. 257. (e) 2 Keen, 653. (g) 4 Russ. 292. (h) 2 Russ. & Myl. 78. 1840. BURROUGH บ. PHILCOX. LACEY V. PHILCOX. v. Kemp (a), were referred to, in addition to those above Mr. Richards, in reply. It was agreed that no question of election, as arising upon Ann Fox Walton's will, should, at present, be dis The testator directed the dividends of 6000l. stock, He out (a) 5 Ves. 849. out leaving lawful issue, then for the said estates to be disposed of as shall be hereinafter mentioned, that is to say, the longest liver of my two children shall have power, by a will, properly attested, in writing, to dispose of all my real and personal estates amongst my nephews and nieces or their children, either all to one of them, or to as many of them as my surviving child shall think proper." The question is, whether these nephews and nieces and their children, take any interest in the property, independently of the power; that is, whether the power given to the survivor of the son and daughter is a mere power, and the interests of the nephews and nieces and their children were, therefore, to depend upon the exercise of it, or whether there was a gift to them, subject only to the power of selection given to the survivor of the son and daughter. Before I refer to the authorities, it will be proper to consider what appears, upon the will, to have been the testator's intention, in the event which happened, of his son and daughter dying without children; and, first, as to the personal estate, of which the capital of the 60007. stock would, in that event, form part, it was to remain in trust until the contingencies mentioned in his will should have happened; that is, at all events, until the death of the survivor of the son and daughter, and, in my construction of the will, until the interests of the nephews and nieces and their children should have been ascertained; but if no interest were to arise in such parties, except by the execution of the power, then all such stock and other personal estate, from the moment of the testator's death, was undisposed of, if such power should not be executed, and, subject to that contingency, became the property of the testator's son and daughter, as his next 1840. BURROUGH v. PHILCOX. LACEY v. PHILCOX, 1840. BURROUGH บ. PHILCOX. LACEY v. PHILCOX. next of kin ; so that they might defeat the interests of the nephews and nieces and their children, by agreement during their joint lives, and giving to the survivor, as to all such survivor's share in the personalty in which he or she would have an absolute property, a power to appoint to and amongst a particular class. The observation with respect to the land is still stronger; the devise to trustees is "to prevent the lands being alienated before the following contingencies are completed," one of which is the creating or ascertaining the estates and interests of the nephews and nieces and their children; whereas, if these parties were to take no estates or interests, except through the execution of the power, the son, as heir, if he survived his sister, would, upon failure of their issue, be absolute owner of the property, as would the sister surviving, unless the son had disposed of his fee, subject to the execution of the power by the sister. There is, therefore, scarcely any supposable event in which the giving this power would, upon that supposition, give to the donee any dominion over the property, or be at all likely to secure any benefit to the declared objects of it. It would be unfortunate if the authorities made it necessary for me to put a construction upon this will leading to such results. If I had to decide this case with no other authority to guide me but The Duke of Marlborough v. Lord Godolphin (a), I should have great difficulty in giving effect to what I cannot doubt having been the testator's intention; but, highly as I venerate the character of Lord Hardwicke as a lawyer, I am not only at liberty, in weighing that authority, to consider how it has been dealt with in subsequent cases, but I am bound so to do. One thing, however, may be observed upon this case. By the codicil, (a) 2 Ves. sen. 61, |