These two cases were the subject of much discussion in Brown v. Higgs (1), in which a testator gave certain leaseholds to John Brown upon trust (after payment of certain charges thereon,) " to employ the rents to such of the children of the testator's nephew Samuel Brown, as the said John Brown should think most deserving, and that would make the best use of it, or to the children of the testator's nephew William Augustus Brown, if any such there were or might be." John Brown died in the testator's lifetime. Lord Alvanley said, "The question is, whether the surplus rents are a gift to all the children, or to such of them only as the testator's nephew John Brown, who died in his lifetime, should appoint. If the former can be collected as his intention, the death of the trustee will make no difference: if that intention cannot be collected, the selection not having taken place, whatever the reason of its failing may be, the bequest must fail with it. Upon the true construction of this will, I am of opinion it is equivalent to saying, he gives it to the children of Samuel Brown or of William Augustus Brown, with a power to John Brown to select any he thinks fit and to exclude the others." His Lordship, therefore, declared the fund to have been well bequeathed in trust for all the children of Samuel Brown and William Augustus Brown. The cause was re-heard before his Lordship, who, after grave consideration of the subject, decreed as before (m). The decree was afterwards affirmed on appeal by Lord Eldon (n), and again affirmed in the House of Lords (o).

"The Duke of Marlborough v. Lord Godolphin," said

(1) 4 Ves. 708. (m) 5 Ves. 495.

(n) 8 Ves. 561.

(o) 18 Ves. 192.

Lord Eldon," is certainly very difficult to reconcile with Harding v. Glyn or Brown v. Higgs; but the question is not, whether one case is to be reconciled with others, but whether all the cases have gone upon a principle which professes to save whole Harding v. Glyn. Lord Hardwicke in The Duke of Marlborough v. Lord Godolphin does not say, that, where there is a power, and it is made the duty of the party to execute it, and he would not execute it, in such a case this Court would not act, but he collected from the scope and object of the disposition taken altogether that it was a case, in which the person having a power to dispose of the sum of 30,000l. had a mere power, not clothed with any duty requiring her to execute it, and therefore, as to what was not disposed of, the Court could not interfere (p).”

In the still later case of Birch v. Wade (q) a testator gave the residue of his real and personal estate to trustees upon trust for his wife for life, and after her decease to pay one third of the interest to his brother for life, another third to his sister Charlotte for life, and the remaining third to his sister Elizabeth for life; one third of the principal to be paid at Charlotte's death amongst such of her children as she should think proper, another third to be paid on his brother's death to his brother's son, "the other third to be left entirely to the disposal of my dear and loving wife among such of her relations as she may think proper;" and the latter direction was held not to be a power, but a trust.

Supposing the discretion not to be arbitrary as a mere power, but imperative as a trust, the next question is, in favour of what objects it will be executed by the Court.

(p) Brown v. Higgs, 8 Ves. 576. (9) 3 V. & B. 198.

It is observed in the "Treatise of Powers," that "in this kind of bequests, in default of appointment, the fund vests in the persons who are next of kin at the death of the donee of the power, and not in the persons who were next of kin at the death of the testator (r);" but the remark, it is presumed, must be applied to those cases only where, as in Harding v. Glyn, the donee of the power has also a life-estate in the fund, the distinction apparently being, that, where a prior vested interest is limited, the Court will execute the power in favour of the objects living when the exercise of the power is called for by the determination of the prior estate (s); but, where no such vested interest precedes, the Court regards not the death of the donee of the power, but executes the trust in favour of the objects living at the death of the testator (t).

It may be useful to inquire, upon this subject, in what manner the Court will execute a power in favour of "relations."

The donee of the discretion, if he have a power of selection, may appoint to relations in any degree (u), and

(r) Treat. Powers, c. 9, s. 6, div. 2.

(s) Doyley v. Attorney-General, 2 Eq. Ca. Ab. 194; Harding v. Glyn, 1 Atk. 469; Cruwys v. Colman, 9 Ves. 319, see 325; Birch v. Wade, 3 V. & B. 198; and see Witts v. Boddington, 3 B. C. C. 95; S. C. Brown v. Higgs, 5 Ves. 503.

(t) Cole v. Wade, 16 Ves. 27, see 48.

(u) Supple v. Lowson, Amb. 729; Grant v. Lynam, 4 Russ.

292; Harding v. Glyn, 1 Atk. 469; S.C. stated from Reg. Lib., Brown v. Higgs, 5 Ves. 501; Mahon v. Savage, 1 Sch. & Lef. 111; Cruwys v. Colman, 9 Ves. 324, per Sir W. Grant; Spring v. Biles, cited Swift v. Gregson, 1 T. R. 435, note (f). In Brunsden v. Woolredge, Amb. 507, Sir T. Sewell seems to have confined the trustees to relations within the statute, but his opinion was otherwise in Supple v. Lowson, ubi supra.

it is only in those cases where he has a mere power of distribution that he must confine himself to the relations within the Statute of Distribution of Intestates' Estates (x). But the Court, except where the bequest is for the benefit of poor relations by way of founding a charity (y), or the testator has furnished some intelligible rule by which the relations out of the statute may be easily ascertained (≈), must in all cases appoint to the relations within the statute; for as on the one hand the Court cannot act arbitrarily by selecting particular objects, so on the other it cannot execute the power in favour of relations in general, for this would lead ad infinitum (a).

The only point which remains open to discussion is, in what shares such relations shall take-whether those who in case of intestacy would have claimed by repre

(x) Isaac v. Defriez, Amb. 595; but see the case stated from Reg. Lib., Attorney-General v.Price, 17 Ves. 373, note (a); Carr v. Bedford, 2 Ch. Re. 146; Pope v. Whitcombe, 3 Mer. 689. The last case, and Forbes v. Ball, 3 Mer. 437, were both decided by Sir W. Grant, but appear to be contradictory; however, in the latter case the question raised was, not whether the donee had exceeded her power, but whether the discretion was a power or a trust; for if a power, and it had not been executed by the will, the fund would have sunk into the residue, and the plaintiff have been entitled as residuary legatee. Note, a power of

selection will be implied in the case of "relations," where it would not have been implied in the case of "children." Spring v. Biles, and Mahon v. Savage, ubi supra. In the latter case the words were "amongst the relations," but see Pope v. Whitcombe, 3 Mer. 689, where the expression was similar.

(y) See White v. White, 7 Ves. 423; Attorney-General v. Price, 17 Ves. 371; Isaac v. De Friez, Ib. 373, note (a); and see Mahon v, Savage, 1 Sch. & Lef. 111. (z) Bennett v. Honywood, Amb. 708.

(a) Thus in Bennett v. Honywood, ubi supra, 456 persons applied as relations within two years.

sentation shall under the execution of the power by the Court take per stirpes or per capita.

Now, the rule that those should be deemed relations who would take a distributive share under the statute was adopted on the ground, that unless some line were drawn for restricting the meaning of the word, a bequest to relations would be void for uncertainty. As this was the sole foundation for appealing to the statute at all, it is evident the single inquiry for the Court is, who would take a distributive share: in what proportions they would take is wholly beside the question, and in fact beyond the Court's jurisdiction; for, when the class has been ascertained, the testator himself has determined the proportions by devising to the objects in words creating a joint tenancy.

In Thomas v. Hole (b) a testator gave 5007. "to the relations of Elizabeth Hole, equally to be divided between them;" and Lord King determined, that, as the testator had directed the sum to be divided equally among them, he could not direct an unequal distribution, and so decreed the brothers and nephews of Elizabeth Hole to take per capita.

In Stamp v. Cooke (c) there occurs a dictum of Lord Kenyon which certainly militates against this construction. "If the testator," said his Lordship, "had given to his next of kin, and stopped there, the statute would be the rule to go by; and although the nephews and nieces are not in fact so near as sisters, yet the fund would have been distributable per stirpes according to the statute."

But in Phillips v. Garth (d), where the expression was

(b) Cas. t. Talb. 251.

(d) 3 B. C. C. 64.

(c) 1 Cox, 236.