1812. BUTCHER 0. BUTCHER. with the Circumstance, that the Parent is enabled to do this: if, instead of Twelve, there had been Twenty Children by the first Marriage, and only one Child by a second Marriage, that Child might have had one equal Moiety; and the other Moiety might have been justly divided into Twenty Parts for the first Class of Children. That is BUTCHER. One extremely strong Circumstance; there are also other Circumstances, to be attended to; and upon the whole the strong Inclination of my Mind is, that this is not illusory. GOODAY Nov. 21. The Lord CHANCELLOR. After the Decree was pronounced, from which this Appeal is presented, Two Cases were decided at the Rolls: Mocatta v. Lousada (a); and Dyke v. Sylvester (b); and the Opinion intimated in my Judgment upon the Appeal from the Decree in Bax v. Whitbread (c), that considerable Difficulties occurred to my Mind as to the Principle, upon which I understood the Master of the Rolls to have decided the Three preceding Cases, has produced this Appeal. It is impossible to describe in stronger Terms than I used on that Occasion the extreme Distress, in which the Rule of this Court, if such as I conceive it to be, places a Judge, who is called on to determine, whether an Appointment is, or is not, illusory. I could not select more apt Expressions than are to be found in Lord Alvanley's Judgments; nor more appropriate Terms than those contained in the Judgment of the present Master of the Rolls, now under Review; who has intimated this in Substance; that he does not know what is an illusory Appointment; when it is said, a bona fide substantial Share shall be given to each Object, and, when it has been held, that £100 is such bona fide substantial Share of £1200; (a) 12 Ves. 123. 15. (c) 10 Ves. 31. 16 Ves. when when Judges, such as Lord Alvanley, have pronounced, that £10 is nothing, declining to say, whether £50 out of £1900 would be a substantial Share: the Master of the Rolls states, that he will relieve himself from the Difficulty, belonging to such a Case, by taking the Rule thus: if you can shew a Case, where the Sum appointed bears the same Proportion to the whole Sum, which is the Subject of the Power, as any other Sum, which has been actually decided to be illusory, with reference to the whole Sum, the Subject of the Power in the Case so decided, he will adopt that Rule of Proportion; that, as the Share, appointed in each Case, does or does not bear the like Proportion, as in the decided Case, it is, or is not, illusory; and, as I understand him, he says, he will proceed upon that Rule, until instructed by higher Authority. In the Case of Bax v. Whitbread, where I was compelled to observe upon that Doctrine, I intimated as strong a Wish as a Judge can entertain, that I could adopt that Principle in Practice; which would relieve us from Distress in a Class of Cases, the most distressing we have to deal with: but it still appears to me, as it did on that Occasion, that where a Power of Appointment was given in Terms, importing the most unfettered Authority, for Instance, among Children, or other Objects, in such Shares and Proportions as the Person, executing the Power, shall think fit, this Court had in a Course of Authority, governing its Decisions for Ages, taken upon itself to say, whether at first upon a sound Principle, or misled by some Misapprehension, that, however large the Terms, the Execution must be governed by a sound Discretion; that it is a Power in some Degree coupled with a Trust; which, if not executed bona fide, and according to the Arbitrium boni Viri, the Execution would be good for nothing; and this Court would resort to that loose Doctrine, as it certainly is, though it has been stated by the greatest 1812. BUTCHER v. BUTCHER. GOODAY 0. BUTCHER. greatest Judges, that Equality is Equity; and the Fund is to be distributed, as if no such Power had been given. Such appearing to me, as it appeared to Lord Alvanley, the Course of the Court, I here express with the Master of the Rolls my sincere Wish, that it should be corrected by higher Authority: but, unless taught by higher Authority, I cannot disavow the Jurisdiction so long exercised; whatever the Difficulty of acting upon it may be. Having given to this Subject the most deliberate Attention, I find it in such a State of Contradiction, both from Dicta and Decisions of great Judges, that, if I had to advise, I could not say, how such a Power can be safely exercised. Upon a Subject, which has been so much the Topic of Discussion and Decision, it would be a Waste of Time to trace the Doctrine from beginning to end through all the Cases; as has been my Habit; which I hope will produce at least this Degree of Service; that I shall leave a Collection of Doctrine and Authority, that may prove useful. With regard to this particular Doctrine, which originated with Lord Nottingham, I observed in Bar v. Whitbread (a), that I cannot agree with him in the first Case he decided; which went to this Extent; that Equality is Equity; and if that is disturbed by the Exercise of the Power, some extremely good Reason must be shewn. It is impossible to admit, that this is the modern Doctrine of the Court; which gives full Sanction for declaring, that it is not necessary for the Person, executing a Power of Appointment, to give the Subject in equal Shares; and I may upon the Result of the Authorities say, it is now reduced to this; that, unless the Share appears upon the Mention of it not to be a substantial Part or Share of the Subject of the Power, the Court never does call on the Person, executing (a) 16 Ves. 15. it, to say, why he has not given in equal Shares among the Objects. In the same, or a subsequent, Case Lord Nottingham says, these Powers are to be good according to Circum stances. If he had explained that, it would have relieved the Court; and might have met the Observation, which is now justified; that upon this Subject the Books are full of Dicta, marked by Contradiction; and Decisions, with regard to each of which no one might agree with the Judge, who decided it. The Doctrine is as loose as this; that, though a Power is given, to be exercised according to Discretion, as to the Shares, yet in Effect, unless the Judgment of the Person, who was to exercise that Power, agreed with the Judgment of the Judge, who had to decide upon the Execution, it is impossible to know whether the Execution would, or would not, be good.. 1812. BUTCHER 0. BUTCHER. GOODAY. v. BUTCHER. Various Con In this way, through all the Cases, in some it is said, that a Reason for Inequality must be alledged in the In- tradictions upstrument executing the Power: in others, that you shall on the Subject be at liberty to prove a Reason, though not assigned: in of illusory Apsome, that, if the Person executing has made another Pro- pointment. vision for the Party, who suffers by the Inequality, that is a Ground for holding sufficient the small Sum, which Lord Alvanley would have characterised as nothing; the Phrase, by which he describes an unsubstantial Share: but the same Cases say, that, if the other Provision comes aliunde, it will not assist the Appointment; others saying, it certainly will; the Person, executing the Power, having only to look to what is reasonable; attending to all the Circumstances, affecting the Situation of each Part of the Family. It has been said by older Judges, that the Power may be executed by a Parent, having Regard to the Conduct of the Child towards that Parent. In later Cases VOL. I. H that 1819. BUTCHER υ. BUTCHER. GOODAY V. BUTCHER. Distinction as to Fraud in Equity and at Law. that has been represented as most dangerous; and too de- I do not pursue the Variety of other Contradictions, that may be pointed out: but will notice one, of some Importance. It is said universally, and cannot be controverted, that any of these Appointments, under which each of the Objects has some Share, is good at Law: but that, where that Share is illusory, that is a Fraud upon the Power; and must be dealt with accordingly in this Court. Some Judges have said, and the Master of the Rolls in his very able Judgment, (which cannot be read without the Observation, that it is a most able Exposition of his Sentiments) grounds one of his Difficulties upon this, that a Deed cannot be fraudulent, unless it is fraudulent both in Law and Equity; that the Question of Fraud is the same in the one Court as in the other. To that Doctrine I do not agree. Though in modern Times, and particularly during the Period, in which I have been engaged in this Hall, a strong Inclination has been evident to say, that whatever is Equity ought to be Law; an Opinion acted upon especially by Mr. Justice Buller; who persuaded Lord Mansfield to act upon it, until it was reformed by Lord Kenyon, with the Assistance of the same very able Judge, as he certainly was; yet the clear Doctrine of Lord Hardwicke and all his Predecessors was, that there are many Instances of Fraud, that would affect Instruments in Equity; of which the |