been considered equivalent to "all and every;" which words are mandatory; and make it *necessary, that each should have a share. It seems to me, that upon the case now before the Court the Judges would have had no doubt, that every one must have taken a share.

I will now state the cases, that have occurred upon this subject, chronologically; and see how far the opinions upon this question of illusory appointment, and I lament extremely, that it has ever found its way into this Court, have been carried. The case, that settled this, is Gibson v. Kinven,t determined by that great Judge Lord NOTTINGHAM, stiled the Father of Equity. It was contended in that case, that any one might have been excluded. It is said in the Report to have been the opinion of Chief Justice PEMBERTON, then at the bar, that a ring might have been given to one; and so it might, if this would be good but the appointment was set aside by Lord NOTTINGHAM for inequality. How can the words in that case be distinguished from amongst her children?" Lord NOTTINGHAM was of opinion, it was necessary to give some part to each; and a nominal part would not satisfy the object of the power.

That case was followed by Wall v. Thurborne, reported in two places in Vernon: ‡ but that book is unfortunately so inaccurate, that I do not know upon which statement to rely. If I take the first statement, it is very near this case.

Two other cases are quoted there, by whom determined I do not know Cragrave v. Perrost, and Swetnam v. Woolaston. Upon the first I rather think the Court would have paused, before they would have set that aside, but for the peculiar circumstances. But Swetnam v. Woolaston, if it is to have any authority, would be against the decision in Gibson v. Kinven. It is a decision departed from in the principal case, and by whom determined I do not know. Therefore it is not entitled to be considered as of any authority.

Clarke v. Turner§ was, I believe, determined by Lord SOMERS. Whether, or not, the Court was struck with the extent of the word "relations" and the subject being land, they took upon themselves, to execute the trust; and decreed it to the heir at law.

† 1 Vern. 66.

1 Vern. 355, 414.

§ 2 Freem. 198.

KEMP

v.

KEMP.

[ *858 ]

KEMP

C.

KEMP.

[859]

[*860]

The next case is a very extraordinary one: Warburton v. Warburton: a power to two of the testator's daughters, whom he appointed his executors, to dispose to the use of themselves, their brothers and sister, or to such of them and in such proportions as they should judge fit and convenient according to their needs and necessities. There the Lord Keeper WRIGHT and the House of Lords seem to have thought that the trust devolved upon the Court. The reason is a very odd one. I hope, they did not lay much stress upon his being bred to the law. It is hardly to be collected, what construction they put upon it. It seems, as if they exercised the power themselves: a power, which of late the Court has disclaimed; and I hope, that will always be followed. If the power is not executed properly, the rule now is to set aside the execution and give the fund equally. But I suppose, the construction there was, that it was a general trust, to be exercised for their own benefit; and therefore the Court was very jealous; and completely controlled it.

The next cases are Thomas v. Thomas referred to in Swift v. Gregson, and Astry v. Astry.§ The former could admit no doubt; and it was determined, that the fund might be given to one: the power being to give to one or more, there was no room for the Court to interfere. In Astry v. Astry the power was to divide among his three daughters in such proportions as the wife should think fit; and the Court was of opinion, it must be equally; unless a good reason appeared. That I take not to be the rule of the Court now. However, it is perfectly clear, that under words of this sort, if some very good reason does not appear, which I admit might be given in the particular case, for giving a very small sum to one, such a disposition cannot be allowed.

Then we come to some cases more modern; and upon which the rule is settled, as it now stands. In Menzey v. Walker,|, notwithstanding the reason given, viz. the provision from the grandfather, yet Lord TALBOT thought, under the words in that case, every one must have a share, and not an illusory share. The next case is Maddison v. Andrew. The principal point does *not bear upon this; but this was held clearly, that each of the § Pr. Ch. 256.

† 1 Br. P. C. 34.

|| For. 72.

2 Vern. 513.

1 Ves. sen. 57.

objects living were entitled to a share; and that no discretion in
such a
case devolved upon the Court. Then in Coleman v.
Seymourt it was held, that a share must be given to each; and
that a share not illusory. The next is a case very often quoted,
Alexander v. Alexander; which seems almost to decide upon
such words as these. Under a power to appoint unto and among
such children begotten between them and in such proportion as
she shall direct, &c. Sir THOMAS CLARKE held, that each must
have some share; and that must not be a nominal share.

The last case I shall take notice of is that, which has been so
much commented upon, Burrell v. Burrell.§ The testator gave
all his real and personal estate to his wife, to the end she might
give his children such fortunes as she should think proper, or
they best deserve; to whom he charged his sons and daughters
to be dutiful and obedient, and loving and affectionate to each
other. The son had an estate of 400l. a-year. The wife gave
two daughters 2001. each; to the son a guinea; and the
remainder to two other daughters. It is impossible to suppose,
that Lord CAMDEN laid any stress upon the guinea. I cannot
conceive, that he considered that as any thing; for it is now too
well settled, and it is imposed on every Judge as an obligation,
whatever may be the inclination of his own opinion, that, though
a gift of any part is a good execution at law, yet in equity, unless
it is substantial and real, it is the same as no execution. The
words of the report leave it a little doubtful. It states two
reasons; and concludes, that, Lord CAMDEN being of the same
opinion, the bill was dismissed. Lord CAMDEN as I conceive, was
of opinion, that these words were so ample, that if she thought
fit to give nothing to one, she might so execute her power. I
will not say what my own opinion would have been. I am
willing to subscribe to that of Lord CAMDEN upon such a doubtful
question; being perfectly satisfied, that in setting aside these ap-
pointments, criticising upon the words "to and amongst," &c. and
the rule as to illusory shares, the Court goes against the in-
tention. I must therefore think, that under the words of that
will Lord CAMDEN thought, the wife might have given the whole
to one child; and had a right to exclude any, who in her opinion
† 1 Ves. sen. 209.
2 Ves. sen. 640.
§ Amb. 660.

KEMP

v.

KEMP. [861]

did not want it. Then ought that to have any effect upon these words? I think not.

My inclination is strong to support the execution of this power, if I could consistently with the rules I find established. Finding those rules established, I must consider these words with reference to those rules. This is a trust beyond all question. What is the effect of the words "amongst her children?" Is it necessary to say "all and every?" Alexander v. Alexander and the cases quoted in Swift v. Gregson plainly shew that, if it was not for the word "such" the word amongst" would require a distribution, so that every one must take some share. A court of law says, a share, however little, will be sufficient. The power must be executed according to the words: if not, it will be bad at law. I shall mention Pocklington v. Bayne, in order to shew that Lord THURLOW's opinion was the same. His Lordship held an acre given to two for their lives was illusory; evidently adopting the rule; which is too firmly established for a Judge to extricate himself from it. I wish to consider these cases as going upon the ground of fraud. I do not notice the late cases; principally because most of them were determined by me: but all of them, Bristow v. Warde,† Wilson v. Piggott, and Vanderzee v. Aclom,§ are upon the same principle.

I am sorry, I have taken so much time upon this cause: but it proceeded from an earnest wish, that the parties would compromise it. My conclusion upon it is, that, notwithstanding the large words, every child must have a share; and the mother was bound to dispose of the fund so as to give every one a share. She has done so but the share given to her daughter, for which no reason appears, sufficient to justify the mother as a trustee, is not sufficient. All the provisions from others will not do to exclude her from this fund; for Mrs. Scattergood has said, each shall have a share. If the person, not the person creating the power, but the person having the execution of it, has provided for them in some other way, that is sufficient; according to the LORD CHANCELLOR's opinion; of which I shall always be glad to † 2 R. R. 235 (2 Ves. J. 336). § 4 Ves. 771. ‡ 2 R. R. 246 (2 Ves. J. 351).

*

avail myself. But in this case I am under the necessity of adhering to the rule, established by such Judges, that it would be a presumption to attempt to get out of it; and under that obligation I must decide, that Martha Kemp was bound to dispose of this property, and to give a substantial share to each child; and that the words are not large enough to enable her to give only to one. Though I had some doubt as to that, I am satisfied now, I cannot make that construction; and am bound to give it among all. I am also bound to say, the bequest of 107. was clearly meant as an illusion and not an execution. Therefore the execution is void. It is in vain now to lament, as I' have in many other cases, that this Court did not follow the rule of law: but now this is so settled, that no Judge will, and certainly I will not, presume to go against it. The Court must decide, whether the share is substantial or not.

For these reasons, but with less satisfaction than I have had in any other judgment I have given, being satisfied, the party creating the power meant a much larger power than I can hold the person executing it had, I must declare this appointment void.

BROWN v. CARTER.
(5 Vesey, 862-879.)

A son, tenant in tail in remainder, when just of age, in 1769, joined his father, tenant for life, in a recovery, for the purpose of raising 3,000l. for the father, and re-settling the estate; the son taking back only an estate for life, with remainder to his first and other sons, &c. Whatever equity he might have had against that settlement was lost by his marriage and acquiescence till after the death of his father in 1793; though under the circumstances there was no probability of issue. Upon that ground a bill by trustees under a general trust for his creditors, claiming as purchasers under the statute 27 Eliz. c. 4, was dismissed; without deciding, whether they could sustain that character; or, how far a settlement, merely as being voluntary, is affected by the statutes of Elizabeth.

By indentures of lease and release, dated the 16th and 17th of February, 1746, Abraham Gapper, Serjeant at law, conveyed all his estates in the counties of Wilts and Somerset to trustees and their heirs; as to the Wiltshire estates, to the use of himself for

1800. Dec. 1, 11.

1801. March 24.

Rolls Court. ARDEN, M.R.

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