Robinson against Hardcastle and Others

robinson against hardoastle and others. Friday, Feb. 1st, 1788. Every execution of a power must have a reference to the original instrument creating that power: and whoever claims under the execution must make title under the power itself. So that where a power was given to A. on his marriage with B. to appoint to and amongst the children of the marriage in such proportions, &c. and A. by will appointed to C. for life, remainder to trustees to (a) 7 Co. 1. (b) 1 Ld. Eaym. 172. (c) Ibid. 152 ROBINSON V. HAKDCASTLE 2 T. R. 242. preserve contingent remainders, remainder to the first and other sons, &c. of C., and in default of such issue to D. another child of A., it was held that C. took an estate tail (a). [7 T. R. 345. 1 East, 450.] [S. C. 2 Bro. C. C. 22, 344. See Crmnpe v. Barrow, 1799, 4 Ves. 684 ; Williamsm v. Fanoell, 1887, 35 Ch. D. 134; In re Abbott [1893], 1 Ch. 57.] A case was sent by the Lord Chancellor, for the opinion of this Court, in substance as follows: By settlement on the marriage of James Dunn, the plaintiff's [242] father, with Dorothy Wright, Robert Dunn, plaintiff's late grandfather, and said James Dunn conveyed to trustees, among other estates, an estate at Great Chilton, to hold, after the marriage, and after a limitation to the use of James Dunn for life, and other limitations not affecting the present question, to the use of the trustees, their heirs and assigns for ever, in trust for such child or children of the body of the said James Dunn on the body of the said Dorothy Wright to be begotten, and for such estates and in such proportions as the said James Dunn should during his life by any deed in writing, or last will under his hand and seal to be executed in the presence of two or more credible witnesses, direct, limit, or appoint, and in default of such appointment, or as the uses, estates, and trusts to be appointed should determine, in trust for the first son of said James Dunn by the said Dorothy, and the heirs of the body of such first son, and for default of such issue, in trust for the second and all other the sons of said James Dunn by said Dorothy, and the heirs of the body of such second and other sons successively, and in default of such issue, in trust to raise portions for daughters, and subject thereto, in trust for said James Dunn, and the heirs of his body, and in default of such issue, in trust for said James Dunn in fee. The marriage took place, and the issue of that marriage were one son, James, and four daughters, Margaret, Elizabeth, the plaintiff Ann, and Catherine. Margaret married the defendant Wright; Elizabeth married Christopher Robinson, who is dead ; Ann married the defendant Michael Hardcastle; and Catherine is unmarried Robert Dunn, and Dorothy the wife of said James Dunn the father, died in his life. The said James Dunn the father, by his will dated 9th June 1761, properly attested, devised the estate at Great Chilton and Dalton Piercy, charged with his debts, and two annuities, one of 121. to his daughter Margaret, another of 301. to his daughter Catherine, and all other his real estates to the said Robinson, Wright, and Hardcastle, to the use of James Dunn the son, for life, without impeachment of waste, remainder to trustees to support contingent remainders, remainder to the first and other sons of the said James Dunn the son, in tail general, remainder to daughters, and the heirs of their bodies respectively, as tenants in common; and for default of such issue, then as to all that part of his estate at Great Chilton which lies on the east side of the post road leading from Rushy Ford to [243] Ferryhill, and all that farm at Dalton Piercy, called the Out Farm, to the use of the plaintiff in fee, and as to that part which lies on the wet side, and all that part of the farm at Dalton Piercy, called the Town Farm, to the use of Ann, in fee; but nevertheless with power to the said James Dunn the son, to charge the said estates with an annuity by way of jointure for any woman he should marry, and to appoint any part of the said estates to younger children, as a provision for them, or to charge the same for their portions, maintenance, and education ; and also to grant leases under certain restrictions. The testator gave the residue of his personal estate to his son James Dunn ; and the said Robinson, Wright, and Hardcastle were also appointed executors, in trust for James Dunn the son; but the testator afterwards by a codicil revoked that part of the will, and made said James Dunn the eon, his sole executor. Ann Hardcastle died in the lifetime of James Dunn the father. James Dunn the father died on or about the 3d of September 1767; upon his death James Dunn the son proved the will, entered upon the estates at Great Chilton, and in 1769 suffered a recovery of them to the use of himself in fee, and afterwards by will devised them to the defendant John Hardcastle, son of defendant Michael (a) Vide Griffith v. Harrison, post, 4 vol. 737. 2T. R.844. ROBINSON V. HARDCASTLE 133 Hardcastle, in fee, charged with an annuity, and also subject to the annuities before-mentioned. The said James Dunn, the son, died 19th of April 1779, leaving Margaret Wright, Elizabeth Robinson, the plaintiff's, and the defendants John Hardcastle, and Catherine Dunn, his heirs at law. The said John Hardcastle, claiming under the will of said James Dunn the son, entered upon the said estate at Great Chilton. The plaintiff claiming all that part of the estate at Great Chilton under the settlement in July 1713, and under her father's will, in Michaelmas term 1782 filed her bill against defendants, praying that John Hardcastle might deliver up to her the possession of that part of the estate at Great Chilton, devised to her, and the title deeds, and account for rents since the death of James Dunn the son ; or if the appointment of James Dunn the father should be deemed void, then that an account of the value of the estate so devised to her might be taken, and that she might have a satisfaction out of the rest of the real and personal estates of James Dunn the father, which came to James [244] Dunn the son, by virtue of the will of James Dunn the father. The question sent for the opinion of the Court is, whether the plaintiff, Elizabeth Robinson, took any, and what estate or interest under the said indentures of lease and release, and settlement of the 13th and 14th of July 1713, and the said will of the said James Dunn her father, in that part of the estate at Great Chilton, comprized in the said settlement, which lies on the east side of the post road, leading from Rushy Ford to Ferryhill. This case was twice argued ; the first time on Friday, November 16th, 1787, by Mitford for the plaintiff, and Graham for the defendant; and again on this day by Bearcroft for the plaintiff, and Piggott for the defendant. Arguments for the plaintiff. This question arises on the...