A

BUTCHER v. BUTCHER.

GOODAY v. BUTCHER.

PETITION of Appeal was presented from the Decree, pronounced at the Rolls (a); establishing the Appointment; except as to the Grandchildren; as to whom it was declared void.

Mr. Richards, and Mr. Trower, for the Appellants.

It is unnecessary to go through all the Cases upon this Subject; which were so fully considered in the late Case,

1812.

Feb. 8, 10.

April 27.
May 2.

Nov. 21.

(9 Ves. 382.)

of £200 Stock, Appointment

though a very

unequal Pro-
portion of the

Fund, held not
illusory.
The Question,
whether an Ap-
pointment is,

Bax v. Whitbread (b). In supporting this Appeal we have the Satisfaction of not contending with the Judg- or is not illument of the Master of the Rolls, upon the Question, sory, must be whether this Appointment is illusory; as that Question determined was not decided at the Rolls; and comes on now, as if upon the Cirthe Cause had been originally heard by your Lordship. cumstances of The Ground, taken by the Master of the Rolls, is, that each Case, he will not go farther than actual Decision has gone; according to a unless an Instance could be produced, in which the Sum of £100 had been held an unsubstantial Appointment, he

and,

sound Discre

tion: the

(a) 9 Ves. 382.

(b) 10 Ves, 31. 16 Ves.

15.

Power, how-
ever large the
Terms, being
in some Degree

coupled with a Trust; but an equal Distribution is not required: nor any Reason for the Inequality; unless a Share is clearly unsubstantial. Under a general Power of Appointment among all the Children by Deed or Will from Time to Time, &c. in default of Appointment, equally at Twenty-one, &c. the Death of one above that Age does not prevent an Appointment to the Survivors.

Appointment void as far as it exceeds the Power: viz. to Grandchildren under a Power to appoint to Children.

would

1812.

BUTCHER

v.

BUTCHER.
GOODAY

0.

BUTCHER.

would not hold it unsubstantial in this Case. That your
Lordship considered as not being the correct Principle;
but that, whenever the Question arises, however difficult,
the Court must determine it; and go into all the Circum-
stances. Upon the Result of all the Authorities a Power
of Appointment is considered as in the Nature of a Trust,
according to the Intention of the Author of the Power,
for the Family of the Person, who is to exercise it: a
substantial Part must be given; amounting in some way
to a Provision: otherwise it is illusory. The Question
therefore is, whether a Provision has been made for these
Children. It is impossible, that £200 Stock can be re-
presented as a Provision. Mrs. Butcher conceived her-
self at Liberty not to provide for them; assigning, as a
Reason, the Disobedience of some: no Instance appear-
ing; except the Institution of a Suit, in which the Costs
of all Parties were directed to be paid out of the Fund.
During her Life she made very considerable Advances to
some of the Children; but gave nothing to Mrs. Gooday,
except this trifling Fund by the Will. The Court must
say, whether this Division, in so great a Disproportion,
is such as the Authors of the Power intended. It may
be represented, that the Consideration for this Settlement
was visionary; the Will of Ives, Mrs. Butcher's Father,
not being found: but the Intention of Pickering and Par-
tington, the Devisees in Trust, and the Authors of this
Settlement, was to provide, not only for her, but for her
Children; and the Object of that Arrangement, into
which she came, was to guard against her Partiality and
Caprice. Upon all the Circumstances, and the relative
Situation of the Parties, the Court will consider this as
not a substantial Part of this Trust Fund: not a Provi-
sion; that the Appointment is not substantially executed;
and is therefore illusory.

Sir

Sir Arthur Piggott, and Mr. Wetherell, Sir Samuel Romilly, and Mr. Grimwood, in support of the Decree.

A Variation of this Decree would be a most improvident Interference of this Court with the Discretion of a Parent. The Appeal comes in no reasonable Time; after the Decree has been carried into Execution; except as to the Provision for the Lunatic; all the other Funds distributed; and the Interest of that only remaining Fund has been applied for Eight Years in the Lunacy for her Maintenance. This Appeal is a Speculation; proceeding upon a Misconception of the Case of Bax v. Whitbread; where your Lordship, affirming the Decree, did not think fit to hold, as an abstract Proposition, that any numerical Calculation could be adopted as the Rule. This is a very peculiar Settlement. The Funds, which are the Subject of the Power, must be considered as the Property of the Mother, however derived; whether by the Will of her Parent; or the Want of a Will; or the Effect of the Act of Pickering and Partington; it was her Property: they had conveyed to her and she was treated as a Feme sole: no Interest whatever being given to her Husband; not even in the Event of his surviving; no Discretion over his Children beyond what he necessarily had by Law. A Power is given to her alone of providing for Children on Marriage, or otherwise advancing them. So the Powers to raise £4000, and £6000, for such Persons as she should appoint, not confined to Children, are given to her alone. So other Powers over Freehold Estates, and the personal Property, are given to her; excluding her Husband from all Concern in the Property, and all Management of the Family.

There must have been Reason for all this. This Settlement, reciting the Will of Ives; that it had not been VOL. I.

G

found;

1812.

w

BUTCHER

V.

BUTCHER.

GOODAY.

0.

BUTCHER.

found; but that Pickering and Partington, being willing under the Circumstances to assign all the Interest they would have taken under that Will, had conveyed and assigned to Mrs. Butcher; and that, after her Interest was so secured, the Will was found; has a very important Qualification with regard to Children by a future Husband; that she shall not appoint to any Child by any future Husband more than One-half of that residuary Personal Estate. This shews the Object. The Inference is, that the Intention of this Parent, and these Trustees Pickering and Partington, was, that without that Restriction she might have appointed more than One-half of the Residue to an only Child by a future Husband. If they were to take in any Way, approaching Equality, a Provision, if that is to be understood as what will provide a Subsistence in Life, where was the Necessity for that Restriction; if she was intended so to execute her Powers, as this Appeal contends? In the Face of this most important Provision, shewing the Intention, that her Power of Distribution was confined only by this Limitation, that if she had Twelve Children by her first Marriage, and only one by a Second, she might give Onehalf to that only Child, distributing the other unequally among the former Class of Children, can it be maintained, that her Discretion is destroyed; and something is to be substituted, so arbitrary as the Discretion of this Court?

Whatever Opinion the Court may adopt, as an abstract Rule, it will not, under all the Circumstances of this Case, interpose. Many Years ago, long before the Date of the Will, some of these Children received different Sums, upon Marriage, or otherwise for their Advancement in the World. Will the Court recal those Advancements? Your Lordship's Doctrine in Bax v. Whitbread, properly understood, is that each Case must depend upon its particular Circumstances. Lord Alvanley in Spencer v. Spen

cer,

cer (a) expressed his Regret, that the Rule had got into the Court; and said, he would not extend it, but would get out of it, where he could; which is the Result of the Judgment of the Master of the Rolls upon this Case: the Difference being in Expression rather than in Substance; and that corresponds with your Lordship's Opinion in Bax v. Whitbread; that the Court has undertaken this Discretion; and cannot adopt any positive Rule of arithmetical Calculation; holding that hot a Case for the Interposition of the Court. The Cases of Appointments set aside as illusory, are, where something was given, so trivial, as to be mere Evasion: a Guinea for Instance: perhaps Five Guineas. All the Observations, made in this Case, are applied to one only of these Children, Mrs. Gooday: the only one, who received nothing but this £200 Stock. A Proportion of that Amount has never been considered illusory: and, if it was less, the Court would feel the Reluctance, expressed in Kemp v. Kemp (b), to interpose in a Case of such Difficulty and Inconvenience; where the Effect must be to undo all, that has been done; with regard to the Lunatic, as well as the others; reducing her to her original Share of the whole of this Fund; the Amount of which has been exaggerated; and does not exceed £11,000. Can the Court act with Success upon a Comparison of the Wants of the different Children? In Alexander v. Alexander (c) an Appointment of £100 was supported; though £1200 would have been the equal Share. The Master of the Rolls in his Judgment upon this Case proceeds in some Degree, but not entirely, upon the Proportion. If £100 is illusory, what Sum can be stated as substantial? That Question was asked, but not answered, at the Rolls; and it is upon

(c) & Ves. 640.

(a) 5 Ves. 362.

(b) 5 Ves. 549.

G 2

those,