1836.--Thornton v. Bright.

third parts of Ballygrubane to Anne Eliot and the heirs of her body. But in case Anne Eliot should die in the lifetime of her said husband and of Phoebe Augusta Heywood, the testator thereby willed that Anne Eliot should have full power to give or appoint, after the decease of Phoebe Augusta Heywood, the whole or any part of the two-third parts of Ballygrubane to all or any one or more of her children who might survive her, for such *estate and [*238] estates, upon and for such trusts, and in such manner and form as, notwithstanding her coverture, she, by her last will and testament in writing, or any codicil thereto, executed and attested as therein mentioned, should direct or appoint; and in default of such direction or appointment, then the testator directed and appointed the same unto the heirs of the body of Anne Eliot. And the testator thereby also directed that, from and after the decease of Phoebe Augusta Heywood, the income of the bank long annuities should be paid to Anne Eliot for her separate use, during the joint lives of herself and her then present husband; and in case she should survive her husband, that the capital of the bank long annuities should be transferred to her for her own use; but in case she should die in her husband's lifetime, then, after her decease, the trustees were directed to transfer the capital of such long annuities to such person or persons and in such manner and form as Anne Eliot should, notwithstanding her coverture, by her last will and testament in writing, or any codicil, executed and attested and therein mentioned, appoint; and in default of such appointment, unto her executors or administrators as part of her personal estate. Richard Bright and Benjamin Heywood were appointed the executors of the will.

Serjeant Heywood died in the month of September, 1828, leaving his daughters Phoebe Augusta Heywood and Ann Eliot his co-heiresses at law and only next of kin. Phoebe Augusta Heywood died in the month of June, 1832, unmarried and intestate, leaving Anne Eliot her heiress at law and only next of kin.

The bill was filed by the trustees of Serjeant Heywood's marriage settlement against the trustees and executors of the Serjeant's will, (one of whom had also *obtained letters of administration de bonis non of [*239] Mary Isabella Heywood) against Mr. and Mrs. Eliot, their infant children, and the trustees of their marriage settlement, and against the personal representative of Phoebe Augusta Heywood; and it prayed that the rights of the several parties in the property which formed the subject of the settlement of December, 1780, might be ascertained and declared.

By the decree of the Vice-Chancellor, made at the hearing of the cause, it was, among other things, declared that the settlement of the 5th of January, 1815, made on the marriage of William Granville Eliot and Anne Heywood, was a valid appointment of one-third of the 5521. 1s. 9d. per annum bank long annuities; and that the one-third of the sum of 5521. 1s. 9d. per annum bank long annuities, amounting to 1841. Os. 7d., per annum like annuities, sold out in the lifetime of Samuel Heywood, and the proceeds whereof were paidto him, was unappointed; and that one-third of such last mentioned third vested

1836.--Thornton v. Bright.

in Anne Eliot, one other third in Phoebe Augusta Heywood, and the other third in Mary Isabella Heywood; and that Anne Eliot became entitled, as the next of kin of Phoebe Augusta Heywood to her said one-third of a third, and that the two-thirds of a third, to which Anne Eliot so became entitled, were liable to be settled under the covenants contained in her marriage settlement; and that under the appointment contained in the will of Samuel Heywood, Anne Heywood became absolutely entitled for her separate use to the remaining one third of the sum of 552l. 1s. 9d. per annum bank long annuities; and that she was not bound to settle the same. And it was further declared that the appointment contained in the will of Samuel Heywood, as to the two-thirds

of the real estate of Ballygrubane, to the trustees for the separate use [*240] of *Anne Eliot, was invalid; but that the appointment of the same

two-thirds by that will to Anne Eliot in tail was a valid appointment; and that under the covenants contained in her marriage settlement, she was bound to settle the same to the several uses in the settlement expressed concerning the one-third of the hereditaments and premises thereby granted and released; and that Anne Eliot should convey the same to the trustees of her marriage settlement, and settle the same accordingly; and that the trustees of Serjeant Heywood's will should pay to William Granville Eliot, as being entitled thereto under the settlement, a moiety of the rents received by them, and which became due after the decease of Samuel Heywood, and prior to the decease of Phoebe Augusta Heywood, in respect of the two undivided thirds of the said real estate, and also the entirety of the rents of the same two undivided thirds which had accrued due, and had been received by them since the death of Phoebe Augusta Heywood.

The defendant Mrs. Eliot appealed against so much of the Vice-Chancellor's decree, as declared the appointment of two-thirds of the estate of Ballygrubane to be void, and against the consequential directions.

The Solicitor General and Mr. Lovat, in support of the appeal :-Under the very general and comprehensive terms of the power contained in the settlement of 1780, the appointment by Serjeant Heywood's will, of the twothirds of the estate of Ballygrubane to trustees, for the separate use of Mrs. Eliot during her coverture, was a valid exercise of the power. So far as the

appointment purports to empower Mrs Eliot, in case she should die in [*241] the lifetime of her husband and of Phoebe Augusta Heywood, to *make

a provision for her surviving children out of the estate, after the decease of Phoebe Augusta, and directs and appoints the estate, in default of such provision being made, to the heirs of the body of Mrs. Eliot, it undoubtedly exceeds the power, and would of course be void for the excess; although, as Mrs. Eliot has survived her sister, the question never can arise. The ViceChancellor, however, has gone a step further, and considering the appointment to trustees for Mrs. Eliot's separate use during her coverture to be invalid, has directed the two-thirds of the property in question to be settled to the same uses as were declared by her marriage settlement with respect to the remain

1836.-Thornton v. Bright.

ing third; thus giving to the husband an absolute control over the rents and profits during his life, and entirely defeating the testator's object. This decision of his Honor is warranted neither by principle nor by authority; indeed it is directly at variance with both. The validity of such an appointment in the case of personal estate given for the benefit of a feme covert has been recognized in a great variety of cases; Alexander v. Alexander,(a) Maddison v. Andrew,(b) Pitt v. Jackson.(c) Crompe v. Barrow ;(d) and it has been assumed in this very case, in that part of the decree which relates to the appointment of the long annuities. There is no principle upon which a different. rule can be supported with respect to appointments of real estate. On the contrary, recent decisions show most distinctly that in this respect real and personal estate stand precisely on the same footing; the purpose and the result being to secure to the object of the power, more fully than at law could be done, the entire and uncontrolled enjoyment of the property which was the subject of the appointment. If it should be held that the [242] appointment is bad at law, and that the estate has therefore vested in the husband, still, according to Lord Kenyon's observation in Doe v. Martin,(e) the husband would be considered in this court as a trustee for the separate use of the wife, so as to secure to her all the benefits intended for her by the testator. The very point was in fact decided by Kenworthy v. Bate, (f) which absolutely concludes the question; and the principle was assumed by Lord Kenyon in Pitt v. Jackson, and again by Sir John Leach in the recent case of Trollope v. Linton.(g)

The following cases were also cited in support of the appellant's argument; Bennet v. Davis, (h) Roberts v. Dixwell,(i) Churchman v. Harvey, (k) Long v. Long,(1) Carver v. Bowles, (m) Major v. Lansley.(n)

Mr. Jacob and Mr. Norton, in support of the decree :-The general words "in such manner and form" apply in strict grammatical construction only to the limitations over and to the gross sums chargeable for the benefit of the children, and not to any prior interest to be created in the property. The terms in which the power is expressed are less comprehensive than the terms to be found in many of the forms in modern use, and less comprehensive than those which occurred in Pitt v. Jackson. At law, the appointment is certainly bad, for it purports to give legal estates to trustees who are persons not within the scope of the power; and the question then remains whether it is good in equity; Hervey v. Hervey.(o) Now, it is plain from the [*243] whole frame of Serjeant Heywood's settlement, that the power contemplated, and was intended to authorize the creation of legal estates only. In this respect, there is an obvious distinction between an equitable and a legal

1836.-Thornton v. Bright.

power-a power to give beneficial interests to be enjoyed through the medium of trustees, and to be moulded and dealt with in a court of equity, and a power to appoint legal estates. This is a power of the latter kind; the appointor himself had a legal estate, and all the limitations in default of appointment are limitations of legal estates. In putting a construction upon the settlement, therefore, it is not to be presumed that the parties intended to authorize the creation of any estates except such as could be created at law. A separate use vested in a married woman is a species of interest of which a legal estate is not capable, and to which there is nothing analogous at common law. Any appointment to Mrs. Eliot, in order to be a due execution of the power, must have given her a legal estate, upon which, however it might be modified, her judgment debts as well as the marital rights would attach. No such estate, however, could have been given to that lady without defeating the settlor's declared object. This circumstance suggests one essential distinction between the numerous cases in which equity has interposed to support appointments made under powers defectively executed at law, and the case now before the court, that whereas in the former there might, but for some slip or oversight, have been a valid execution at law, here the formal defect in the execution cannot possibly be supplied or corrected without defeating the very purpose of the appointment. No strictly legal execution of this power could have oper

ated to give to Mrs. Eliot such an interest as her father's will affected [*244] to create for her exclusive benefit. The effect of supporting *the trust

for her separate use as a good equitable appointment would be to convert a power, created for one purpose, to a totally different and foreign purpose, and would destroy the title of judgment creditors, as well as the right of her husband to receive the rents and profits of the estate, and to be tenant by the courtesy in case he survived her. All the former cases have arisen upon questions between the appointee and the persons claiming as in default of appointment. The peculiarity in this case is, that Mrs. Eliot is in equity claiming against herself and other parties interested under a marriage settlement; and that, for the purpose of excluding herself and her children, she is attempting to cut down the estate which she takes under that settlement from an estate tail to a mere life interest. With the exception of Pitt v. Jackson, Kenworthy v. Bute, and Trollope v. Linton, the authorities cited on the other side are all cases of appointments of personalty, and have no application; for the separate interest of a married woman in personal estate is generally, and almost necessarily, the subject of a trust, and has been recognized and supported by courts of equity for upwards of a century, with a view to her protection against the otherwise absolute dominion of the husband. In Pitt v. Jackson the same. counsel appeared on behalf of both husband and wife, so that the question never could have been distinctly raised. Trollope v. Linton is nothing more than a dictum, not necessary to the decision of the case; and as to Kenworthy v. Bate, on which so much stress has been laid, independently of the points. already noticed, in which it is clearly distinguishable from the case under

1836.-Thornton v. Bright

appeal, the appointment there was substantially a good execution of the power, inasmuch as it gave to the objects of the power, in the form of money, the whole property which was the subject of the power.

*Mr. Stevens and Mr. Gresley appeared for other parties. The Solicitor General, in reply.

[*245]

December 16.-The LORD CHANCELLOR :-The appeal in this case is confined to that part of the decree which declares that an appointment in the will of the late Serjeant Heywood of two-thirds of an estate in Ireland, to trustees, for the separate use of the appellant, Mrs. Eliot, was invalid, and that she was under the covenant in her settlement bound to settle the same to the uses contained in that settlement as to the other one-third, and which directs her to convey the same accordingly, and directs payment to her husband of the rents of such two-thirds: the appellant contending that the will of Serjeant Heywood ought to take effect so as to secure to her, for her separate use, the rents of the two-thirds in question; and that she is entitled to the two-thirds of the estate under the Serjeant's appointment by his will, and is not bound to settle it upon the trusts of her marriage settlement.

[His Lordship here stated the limitations contained in Serjeant Heywood's marriage settlement, and continued :-]

The power was to be exercised in favor of all or any of the children, for such estate and estates, charged with such annual or gross sums in favor of children, and in such manner and form as the Serjeant might appoint; and then follow limitations in default of appointment, under which, in the events which have happened, the estate has devolved upon Mrs. Eliot in tail. Of this marriage there were issue but three daughters who survived [246] childhood and attained twenty-one; Mary Isabella, who died, before the Serjeant's will, unmarried; Phoebe Augusta, who also died unmarried, but after the Serjeant; and Anne, now Mrs. Eliot, who has children.

Preparatory to the marriage of Mrs. Eliot, Serjeant Heywood appointed onethird of the estate in question to her in fee; and by her marriage settlement, dated the 5th of January, 1815, this third was conveyed to trustees in fee, to the use (subject to the life estates of Serjeant Heywood and his wife) of Mr. Eliot for life, remainder to Mrs. Eliot for life, remainder to the use of the children of the marriage as therein provided. In this settlement there was the following covenant by Mr. Eliot. [His Lordship read the covenant.] The subject upon which this covenant is to operate is any other interest in the estate in question to which Mrs. Eliot might become entitled by survivorship or otherwise; but the covenant is not to operate, if the property be otherwise expressly directed or appointed by the deed or will by virtue of which she shall become entitled thereto.

Serjeant Heywood, by his will, dated the 15th of June, 1826, executed and attested as was required by the power reserved in the settlement of 1780, (after reciting that one-third of the estate had been limited by the settlement