
    [Philadelphia,
    March, 1827.]
    SALTER against HOWELL.
    CASE STATED.
    Testator left four thousand dollars “to my daughter M. B., to be placed out at interest upon good security by my executors, and the interest to be paid to her annually or oftener, as they shall receive the same during her life, and at her decease she may will it to any of my daughter’s children as she pleases or sees fit; and, in default of her making a will and so disposing of it, it is my will that the same shall be divided amongst her sister’s children, share and share alike.” In another clause, she bequeathed the interest of a like sum to the two sons of a deceased daughter, with cross-remainders to their issue, and she had then a daughter M, H., who had several children: M. B. afterwards made her will, and meaning to execute the power, gave one thousand dollars thereof to her great niece, E. S., and the remaining three thousand to her sister, M. H., if she should survive her, if not, then to her eldest son, S. E. H.
    
      Held, 1. That the power was not well executed by M. B., either as to the one thousand dollárs or three thousand dollars.
    2. That in that event the whole money went to the children of M. H., and no part to the children of the deceased daughter.
    The following case was stated for the opinion of the court:
    
      Ann Emlen, by her will, dated the 27th of June, 1815, proved the 10th of February, 1816, made the following bequests:—
    
      “ I leave four, thousand dollars to my daughter, Mary Beveridge, to be placed out at interest upon good security by my executors, and the interest to be paid to her annually, or oftener, as they shall receive the same during her life; and at her decease, she may will it to any of my daughter’s children as she pleases or sees fit; and in default of her making a will and so disposing of it, it is my will that the same shall be divided amongst her sister’s children,'share and share alike.
    
      “Item. I give and bequeath to my executors, and the survivor of them, and the executors and administrators of such- survivor, the sum of four thousand dollars, in trust that the same be placed out at interest upon good security, and the interest that may arise thereon to be paid over from time to time, as they shall receive the same, to my deceased daughter., Ann Mifflin’s two sons, Samuel and Lemuel, in equal shares, during their natural lives, and if either of them shall die leaving lawful issue, then 1 give an equal moiety, or one half part of the said principal and interest monies to such issue, if more than one, equally to be divided between them: but if either of them shall die without leaving lawful issue,, then the whole of the said interest (only) to be paid to the survivor of them during the life of such survivor. And, upon the decease of both of them, the said Samuel and Lemuel, if either of them shall leave lawful issue, such issue shall take the whole of the said monies, if more than one person, in equal shares. But in case both of them die without leaving lawful issue, then I give the the same, both principal and interest, to my daughter Mary Howell’s children, to be equally divided between them, share and share alike.
    
      “Item. I give to my executors forty dollars in trust, to pay the treasurer of the monthly meeting.
    
      “ Item. Furniture to go into rest and residue, &c.
    
      “Item. Residue to Mary Howell, in fee."
    
      “Item. I have made the foregoing disposition of my estate without leaving any part thereof to my sons’ children, because my sons received a much larger proportion than my daughters of their father’s estate, and I wish to make up the deficiency.”
    Lastly, she nominated Samuel E. Howell and Dr. .Samuel Emlen, executors, &c.
    
      Mary Beveridge died the 20th of September, 1820. Her will was dated the 16th of September, 1820, and was as follows:—“As to the principal sum of four thousand dollars, the income of which my late mother, Ann Emlen, by her will,, left to me during my lifetime, with power to dispose of the principal by my will, I do in performance and execution of that power give and bequeath one thousand dollars thereof to my great niece, Elizabeth Smith; and as to the remaining three thousand dollars residue,of the said principal sum of four thousand dollars, I do give and bequeath the same to my sister, Margaret Howell, if she shall survive me; but if she shall not survive me, then I give the same to her eldest son, Samuel E. Howell.”
    
    
      Ann Emlen left two daughters—the above-named Mary Beveridge and Mary Howell. A third daughter, Ann Mifflin, died before her, on the 22d of March, 1815, leaving issue, Samuel, who died July, 1819, and Lemuel, who died August, 1824, both without issue. Mary Beveridge never had children. Margaret Howell survived her, and died the 4th of May, 1822.
    At the time of the death of her mother, (Ann Emlen,) Margaret Howell had eleven children living, viz:—Samuel E.; George; Mary, wife of Benjamin Jones; Margaret, wife of John Salter, the plaintiff; Hannah, wife of Dr. Burton; Eliza, wife of Dr. Warner; Susan, wife of A. Fenwick; William E.; Joseph E.; Jane, and Emmeline, (now living,) and four grandchildren, the issue of another daughter, Ann Smith, who died several years before Ann Emlen.
    
    
      Joseph E. Howell, and William E. Howell, both died before their mother, (the said Margaret Howell:) the former the 20th of March, 1819; the latter, the 27th of February, 1822; leaving issue now living.
    
      Susan Fenwick is also deceased, having issue now living.
    The question for decision is, whether the plaintiffs are entitled to any; and, if any, and what part of the said legacy of four thousand dollars.
    
      1. Is the bequest in Mrs. Beveridge’s will a good execution of the power as to the disposition of the four thousand dollars ?
    If not, that sum is to be divided among Mrs. Beveridges sister’s children. Then,—
    
      2. Who are these children ? Do they include the children of Ann Mifflin, who was not living when Ann Emlen’s will was made?
    3. Children of Ann Smith, (daughter of Margaret Howell,) who died seven years before Ann Emlen, are they entitled?
    4. Representatives of Joseph E. Howell and William E. Howell, who survived Ann Emlen, but died before the mother, Margaret Howell, do they take the shares which they (the decedents,) would respectively have taken, had they survived their mother?
    The case was argued by Tilghman and T. Sergeant, for the plaintiff, and W. Smith, contra.
   The opinion of the court was delivered by

Duncan, J.

Two questions arise on the will of this testatrix:— The first is, was the power given to Mary Beveridge well executed? If it was not, then who on its non-execution are entitled to take, according to the provisions of the will?

The apportionment of three thousand dollars of the fund to Margaret Howell, if she survived Mary Beveridge, is clearly void. There is, a strictness required' in the execution of powers which frequently appears to be harsh; but if once a latitude was allowed, and the direction of the testator as to the appointment was departed from, there would be no rule to go by; and if an implied or presumed intention, even in hard cases, was permitted, and the broad rule of strict adherence to be broken in upon by a minute inquiry into the circumstances of families, it would be highly mischievous, and render the judge the distributor of favours, instead of deciding on the words of the testator, or his clear and declared intention. A power to appoint to the children of A. will not therefore authorize an appointment to the mother, whom the testator had passed by. The appointment to Mary Howell is therefore invalid. This likewise defeats the appointment to Samuel E. Howell in contingency; and here, where the contingency did not happen, he cannot take. It is given on a contingency, on which Mary Beveridge had no right to give it. The appointment of one thousand dollars to Eliza Smith, a grandchild of Margaret Howell, cannot be supported; for it is now well settled, that a power to appoint to children is not well executed by an appointment to grandchildren. Sugdenon Powers, 501. . If, indeed, this power could not otherwise be- executed, or if there were no children, then it might be valid, because the intention would be manifest to show that by children the testator meant grandchildren; the power not being well executed.

The next question is, what children, whose children, (the children of a daughter of the devisor, and the sister of Mary Beveridge, being the only objects,) are within the scope of the power, and within the distinction, in case of non-execution of the power; and here the intention of the testatrix is to govern: and, taking into consideration every provision of the will, that intention is very apparent. The testatrix’s plan was to put all on a footing: .there should be an equality among her children and grandchildren, and her design was, to put the children of her daughter on a footing with her son’s children, and the children of her deceased daughter, Anne Mifflin. She states that her son had received of his fathez’’s estate a much larger portion than her daughters, and therefore she leaves his children nothing. To the two sons of her deceased daughter, Ann Mifflin, she gives four thousand dollars; providing, that if both of them should die without leaving issue, it should go over to her daughter, Margaret Hoioell’s children; and to Mary Beveridge, which is the devise in question, she gives the interest of four thousand dollars annually-during her life:— And, at her decease, she may will it to any of her daughters’ children, as she pleases and sees fit; and, in default of her making a will, and so disposing of it, then it is to be divided among her sister’s children, share and share alike. What sister did she intend? the only living sister of Mary Beveridge. She might appoint to any one of them. Now the executor of that power could not give it to the child of any deceased sister. Those childz'en of Margaret Howell were otherwise unprovided for, and appear to have been the particular objects of the testator’s bounty, and of her justice in the distribution of her property, all others being provided for.

If Mary Beveridge did not so appoint, then. it was to be divided among all Margaret Howell’s children, share and share alike. When she speaks of her daughter, Ann Mifflin, she calls her her deceased daughter; when of Margaret Howell, she calls her her daughter,—“my daughter, my daughter’s childz’en;” and when she speaks of them in relation to Mrs. Beveridge, it is her daughter’s children. It is not a power to give to the children of “any one of my daughters,” but “to any one of my daughter’s children,” her whom before she had described as her daughter; that is, she may select any one of my said daughter’s children, not any child of any of any of my daughters. This may at first appear ambiguod's, but a careful attention to the whole structuz’e of the will, and the phraseology of the testatrix, will satisfy the mind that this bounty was intended for the children of her living daughter, Margaret, the children of the living sister of Mary Beveridge. That she never intended the children of her deceased daughter, Ann Mifflin, because for these childz’en she had made the same exact provision, and her son’s children were to get nothing, in any event. On the death of Ann Mifflin’s children, without leaving issue, the children of Margaret alone were to take what had been bequeathed to them; so that throughout the will the testatrix discovered her anxiety to provide for them. In one event, some one of these children being selected by Mary Beveridge, that child would take, but if she did not appoint, then it was still to go to the same family, and be equally divided among all the children of Margaret Howell.

The four thousand dollars is to be divided among the eleven^ children of Margaret Howell. Judgment is therefore to be entered for one eleventh part for the plaintiffs, the amount by agreement to be settled by the attornies of the parties.

Judgment for the plaintiff.  