Alexander v Alexander
| Jurisdiction | England & Wales |
| Judgment Date | 17 July 1755 |
| Date | 17 July 1755 |
| Court | High Court of Chancery |
English Reports Citation: 28 E.R. 408
HIGH COURT OF CHANCERY
Discussed, In re Kerr's Trusts, 1877, 4 Ch. D. 600.
alexander v. alexander, July 17, 1755. [Discussed, In re Kerr's Trusts, 1877, 4 Oh. D. 600.] Master of the Bolls for Lord Chancellor.-Power to appoint among children (see Maddison v. Andrew, 1 Ves. sen. 57, 59 ; et Supplement, p, 45, 46 : more especially Kemp v. Kemp, 5 Ves. 849, 860; Butcher v. Butcher, 9 Ves. 382, 397; and 1 Ves. & B. 79, &c., and Daubeny v. Cockburn, 1 Meriv. 626, 640, &c.); each must have a part, not illusory (Note : It is very observable,, that in the principal case no point was raised, as to any appointment being illusory. Anne did not claim more than her 100 with the interest. Vide Reg. Lib. et 9 Ves. 392), nor reversionary; but a particular interest, as for life, may be given to one. Such a power will not extend to grand-children (vide 4 T. E. 741 ; Gowp. 637; 2 Bro. 50, 54; 3 Burr. 1626); nor can a discretion be given to another to appoint. But though that would be void, it would not devolve on the court; which is only where the power is well created, but by accident cannot be executed by the party. (See 1 Ves. sen. 60.) Where given to those not capable, together with another, who is capable, the latter will take the whole. Tinder such a power it cannot be given free from debts of the appointee.- [Supplement, 434.] James Alexander (1) by will bequeaths to two trustees 6000, describing particularly the funds of which it consisted, upon trust to pay the interest and produce to his wife for life, and directs them to place the same out at interest with her consent; " and I " give unto my said wife the absolute disposal of the said sum of 6000 unto and among " such children begotten between us, and in such proportion as she shall by last will " and testament, or by any other deed or deeds, writing or writings, to be executed by " her in her life-time, attested by two or more credible witnesses, direct, limit, and " appoint " ; then directs the trustees to pay the same according to such will or appointment ; and for want of such a will or appointment, that the said 6000 should fall into and go in the same manner as the residue of his personal estate ; but if his wife should think fit to apply in her life-time any part of the said 6000 as an increase of any of the portions given by the will to his said children, or any of them, for their better advancement in marriage or otherwise in the world, then the trustees should out of the said 6000 issue and pay such part thereof for the benefit of such children, as his wife should by any writing as aforesaid direct and appoint. The mother makes her will, there being then five of the children living, she thereby recites her power, and in pursuance thereof gives to her daughter Anne 100 to be paid out of the sum of 5390, which she computed to be the only remaining sum of 6000 [641] after deducting what she had before paid to some of her children ; and as to the remaining produce after payment of the said 100 she disposes to her daughter Mary and son James for their own respective use each one full fourth part thereof (the whole into four parts equally to be divided), and to the said Mary and James also the other remaining two-fourth parts; but as to those two-fourth parts upon the trusts following ; viz. as to one of the same to place out or continue on securities during the life of their sister, her daughter Catherine, wife ;of Thomas Clipperton, and to pay the interest thereof to such person or persons and for such purposes as she shall from time to time direct, and in default of such direction into her own proper hands, my will being, that such interest shall be for her separate use and disposal, and not subject to the debts, controul, or engagements of her present or any future husband; and upon trust at her decease to pay and apply the principal of such fourth part to such child or children, 2 VES. SEN. 642. ALEXANDER V. ALEXANDER 409 if any, as she shall happen to have living at her decease, in such manner as she shall by writing under her hand in nature of a will or otherwise appoint; and, for want of such appointment, to such...
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