Lady Manfell there are more material words to be added, viz. "That after their against Sir E. Vaughan Manfell and others. 66 deaths, his Son fhould have a Power of appointing a Jointure, without the consent of any body;" that is, the Teftator has given a Power to be executed in one event, and, because it cannot be executed in the manner he intended, therefore we must give him a Power, from conjecture, which we do not know whether he intended or no, and which we muft prefume he did not intend, as he has not faid it. This would not be expounding a Will, but making a Will; it is not like Coryton and Hilliard, where the words were equivalent to, if fo long live (a.) (a) Coryton and Hilliard, 10th August 1745, from Sir Eardley's MS. Notes. Sir William Coryton devised all and fingular his manors and lands unto his Wife Sarah, Sir Edward Littleton, and others, and their Heirs, determinable as hereafter declared, upon the feveral Trufts hereinafter mentioned, viz. until his Son John Coryton, Efquire, attained his age of twenty-feven years, and no longer; in Truft, in the mean time, out of the rents and profits, to discharge the legacies and fums of money mentioned in his Will, and after payment thereof, to lay out the remaining money at intereft, upon the fame Trufts as his lands are fettled; and after the determination of the eftate limited to them in Ufe or in Truft as aforefaid, and the accomplishment of his Son's age of twenty-feven years, to the ufe of the Trustees and their Heirs, that they fhould ftand feifed to the ufe of them and their Heirs, to the use of his Son John and his Affigns, for the term of ninety-nine years, fans wafte, and from and after the determination of that estate, to the use of the faid Trustees, during the life of his said Son John, to preserve, &c.; and from and after the death of his faid Son John, then to the use of his first and other Sons in Tail, with other Remainders over. John Coryton the Son died, having made his Will, and devised all his perfonal estate to his Wife, who claimed the ninety-nine years as a term in grofs. The Question in this Cause was, Whether, on the conftruction of this Will, John Coryton, the Son, took an absolute estate in the term, or whether only for his life? Lord Chancellor faid, There are two Questions; First, Whether thefe are limitations of a Truft, or of a legal eftate? Secondly, Whether the term of ninety-nine years is now fubfifting as a term in grofs, or is attendant on the inheritance? As to the first Queftion, Lord Chancellor was of opinion it was a Truft and not a Ufe, after the arrival of John Coryton to his age of twenty-feven years. As to the fecond point, he held it determinable on the death of Sir John Coryton. Uvedale Uvedale and Halfpenny, 2 P. Will. 151. was a plain apparent miftake. All these kind of affirmative Powers, imply a negative; viz. if they are not executed with confent, they fhall not be executed at all. Powers of Revocation are often given in Marriage Settlements, with confent of Trustees; but it was never apprehended that when the Trustees were dead, the Tenant for life might revoke all the uses of the Settlement. It is in the power of the giver to modify his gift as he pleases, and the donee must take it as it is given him; and if he cannot have it in that manner, he cannot have it at all. The qualification of this Power, being a confent to a Marriage, is looked upon with an unfavourable eye, and rather throws a mist about this point, which another kind of qualification would not have done; for fuppofe it had been to make Leafes with confent of A. to fuch perfons as A. fhall approve, or if A. comes from Rome, or any other collateral event, it would not have endured a moment's litigation. It has been faid, Powers must be literally conftrued, and the Cafes adduced are very proper to support that pofition; but in all these Cafes a Power has clearly existed; whereas the queftion here is, whether there is fuch a Power or not. Cro. Elizab. 26. Lee v. Vincent, is in point-state it.-Estate cannot be fold after the death of A. In 1 Leo. 286. is a cafe of the fame kind. Lands to be fold after an Estate Tail, with the affent of A. who dies, the Power is gone; and yet very improbable A. fhould furvive the Eftate Tail. But the true way of confidering this question is, to take it as a defcription and designation to take. All Powers arife out of the old Fee, and, when executed, operate by the Statute of Ufes, and are equivalent to a limitation inserted in the Deed containing the Power; the party is in by the giver of the Power: the fame as if devised to Lady Manfell against Sir E. Vaughan Manfell and others. Son Lady Manfell Son for life, remainder to fuch woman as he fhall marry with the against Sir E. Vaughan Manfell and others. confent of A. and B. She muft bring herself within the defcription, in order to take. Suppofe a Power to make Jointures upon any of the Daughters of a particular perfon, and that perfon never has any Daughters, or they all die, or upon a Peerefs. The cafe in Dyer, 189, b. Butler and Bray, is in point upon this part of the cafe, and though obfcurely reported, yet the fubftance is plain; and in Godbolt, 77, Bonefant v. Sir R. Greinfield, it is cited in this manner: Lord Bray covenanted, that if his Son marry with the confent of four Lords, whom he especially names, A. B. C. D. that then he would ftand feised to the ufe of his Son and his Wife, and of the Heirs of their two bodies begotten; one of the four was attainted and executed; the others confented he should marry fuch a one. He married her, yet no eftate paffed, becaufe the fourth did not confent, and it was a joint Truft. In 1 Leon. 74. Baldwin and Cock, it is cited again, and faid to be adjusted, that upon that Marriage no use fhall accrue. It has been argued from Intent, and faid, that comparing ages of Trustees with the Wife's age, it was five to one if they survived her; and therefore that he could not intend to give a Power with a reftraint which would probably defeat it. The Teftator was the proper judge of the propriety of such a difpofition: he knew the Wife's age, and the ages of the Trustees: he might not have given his Son any Power at all: he faw the improbability of the Power taking place. If he had thought proper to have given the Power without any restraint, in cafe the Trustees died, he would have faid fo. Suppose it had been given with the confent of one Trustee who had been younger than the fon's wife, yet he might have died before her; and the Teftator must be supposed to have taken that event into his confideration; and whether it is more or less likely that the contingency fhall happen is not material: he might have given him no Power; he might have given it him upon an event where it was two to one, or a hundred to one, whether that event should happen : expreffio unius eft exclufio alterius;" the giving it in one event, is faying he shall not have it in any other. 66 It would be moft abfurd to fay, he had given it on a contingency, and yet that he should have it, whether the contingency happened or not; the giving it on a contingency, is equivalent to faying, he fhall not have it unless the contingency happens. The other Lords Commiffioners being of the fame Opinion; DECREE, That the Plaintiff's Bill, fo far as it feeks Relief concerning the MANSELL Eftate, do ftand difmiffed out of this Court without Cofts, and that poffeffion of the MANSELL Eftate be delivered to the Defendant Sir EDWARD VAUGHAN MANSELL; and Order, that the Plaintiff do deliver to the faid Defendant, upon oath, all deeds and writings in her cuftody or power relative to the faid MANSELL Eftate. Lady Manfell against Sir E. Vaughan Manfell and others. GEORGE GREEN and MARY his Wife, THOMAS GREEN, DEFENDANTS. Deav 1.J.Ch. june 1757. Bridgeman against Green and others. 15 Leat THE fubftance of the original Bill was, that in 1746, the Plaintiff hired the Defendant GEORGE GREEN, as a Butler; that the Defendant having served him a short time, took advantage of the weaknefs of his understanding, and obtained a Bond from him for £.2,800. conditioned for paying him an Annuity, if his wages were not paid, or if the Plaintiff turned him out of his fervice; that he received his rents, and never accounted for them; that he introduced the Defendant WILLIAM Lock to him, and they together got him to execute conveyances of various forms; that Defendant GEORGE GREEN propofed to him to mortgage his eftate to EDWARD BRIDGES, Ef |