
    Emma B. Fronty, and Henry Bailey, and Effingham Wagner, Executors of Mary Fronty, v. Rene Godard, and John H. Mey, Executors of Michael Fronty.
    The testator devised his real and personal estate in Charleston to his wife for life, with a special charge for the preservation thereof; but empowered her to make some provision, or portion, to their adopted daughter: and directed his executors, immediately after the death of his wife, to sell all his said estate, and to transmit the proceeds to his relatives in France, to whom- he bequeathed the same. And by a subsequent clause in his will, he declared his intention to make no disposition of his rights, or claims, to the property of his wife. By a codicil, subsequently executed in France, he bequeathed to the daughter a legacy of the value of $600, as a small portion; and directed it to be paid out of his estate in France. After his death, the wife, by an agreement with' his relatives in France, contracted, amongst other things, to exercise no rights over the property out of France, other than such as are conferred by the will. The testator left property in Charleston of the value of $50,000. Held, that the power was intended to operate on the testator’s own estate; that it was not revoked by the bequest in the codicil; nor impaired by the agreement entered into by the wife in France; and that it was well executed by a devise to the daughter of about two-thirds of the property in Charleston.
    The intention of the testator, whenever it can be legally ascertained, is to govern the construction of his will; and the whole must, if possible, be construed together, so that all its parts may have éffect.
    In determining the extent of a power, the intention of the parties in its creation must constitute the guide.
    In the execution of a general power, there can be no rule but the discretion of the party to whom it is confided; and where a power of appointment is to be exercised according to tire discretion of the person, to whom it is committed, no appointment, however unjust, or unreasonable it may seem, can be regarded as excessive by the Courts.
    The doctrine of the English Courts, in relation to illusory appointments, which has been carried to a most unwarrantable length, and is reprobated by the wisest judges, applies only to powers of distribution, where there is an obligation to give something to each of several objects of the power; and even if the doctrine were adopted by our Courts, it is not to he extended to other discretionary powers of appointment, so as to render the execution of them void on the ground that it is excessive.
    Tenant for life in possession, under a will, of real estate, hank stock, and other securities, having made an appointment of them, by virtue of a power contained in the will, the legal title vests immediately in the appointee,; and the executors of tire original testator have no authority to collect the rents, dividends, and interest, and therefore no right to commissions for receiving, and paying, if they do so.
    Dividends, and interest of bank stock, and other securities, which, had accrued, partially, during the continuance of a life estate, ordered to be apportioned between the executors of the tenant for life, and the persons intitled in remainder.
    Dr. Michael Fronty, formerly of Charleston, by-his last will and testament, executed in Charleston, on the 10th May, 1825, after disposing of a part of his estate, consisting of rights, credits, and various effects in France, and other foreign countries, devised and bequeathed as follows: “I give, devise, and bequeath, unto my beloved wife, Mary Fronty, generally, all the rest of my property, and estate whatsoever, real, and personal, which I own in Charleston, consisting of houses, lands, negroes, bank shares, stock, or otherwise, the same to have and enjoy, and the rents, issues, interest, and profits arising therefrom, to claim, and receive, during the term of her natural life, upon the special charge, however, that she will, at her own expence, keep the same in due order, and condition, make all repairs, pay taxes, insurance, and other necessary expences attending the same, and take all proper steps towards the preservation, and entertainment thereof. But I do nevertheless empower my said wife, by her last will and testament, or other instrument signifying her intention, to make some provision, or portion to our orphan, child, Augustine Matilda Emma Barton, whom I recommend to her good and generous heart. At the death of my beloved wife, my friends, .Rene Godard, Charles S. Mey, and John Henry Mey, or the survivors of them, shall in the most advantageous manner, and with the least delay possible, proceed to sell, and dispose of all my goods, chattels, property, and estate, of all descriptions, real, and personal, aforesaid, and transmit the proceeds thereof in the safest manner to my brother, Michael Fronty, in France, tvho shall hold the saíne in trust for his children, to whom I give all the said proceeds of my estate.” In a subsequent clause of his will, the testator declared as follows: “J do not think proper to make any disposition with respect to the rights, or claims, which I may have on the property of my dear wife, left her by the will of her deceased aunt, Mrs.’Loveday, as I decline interfering in any manner with her personal views, and dispositions, which I leave her full liberty to make, and execute, at her own pleasure, giving my full assent to any will, or testament, she may make, expressive of the same.” And of his said will, the testator appointed his said wife executrix, and the said Rene Godard, Charles S. Mey, and John Henry'Mey, executors.
    Shortly after the daté of this will, Dr. Fronty removed permanently to France; where, on the 2hd April, 1828, he made a codicil to his will, which contained the following clause. “ I give, and bequeath, to Miss, Augustine Emma Barton, orphan, whom we have brought up, and lives with us, since the year 1812, a sum of three thousand francs, as a small portion, which will be paid to her two years after my death, and this portion will be her property, of which her husband will be obliged to give her good security for. To make up this sum, the executors of my will shall sell three of the actions I have in the Bank of Bordeaux; and I oppose any more being sold.” By this codicil the .testator also devised to his wife, for life, “ the small domain of Bouscat, near Bordeaux;” and'made some other dispositions of his French estates. He also referred to his will made in Charleston, on the 1 Oth- May, 1825; and added, “ I also declare that I confirm my said will, in all which is not contrary to this codicil, which I wish to be executed in all its form and tenor.” -Of this codicil the testator appointed his wife executrix, and his brother, Michael Fronty, executor; -and died on the 12th February, 1830, at Bouscat, near Bordeaux, leaving both his said will, and the codicil, of full force.
    The testator, at the time of his death, possessed the following property in Charleston, and its vicinity. A house and lot of land in King street; a house and lot on Sullivan’s Island; one hundred and nineteen shares in the Union Bank; sixty shares in the Planters and Mechanics Bank; sixty shares'in the Bank of the United States; thirty shares in the Bank of South Carolina; one hundred shares in the Union Insurance Company; two thousand five hundred dollars of South Carolina State six per cent, stock; and one thousand dollars of South' Carolina State five per cent, stock. The testator was also possessed of a bond of the First Presbyterian, or Scotch Church, in Charleston, for the payment of six thousand five hundred dollars, which had been taken by him in payment for a house and lot of land at comer street, and Parsonage lane, which was pari of the real estate, and inheritance, of his wife, and which had been sold by him : and also of five thousand dollars of six per cent, stock Charleston, which he had received in payment for another lot of land of his wife in Clifford street, which had been taken by the City Council for the purpose of widening that street.
    Mrs. Fronty, during her marriage with the testator,- had acquired a very considerable real, and personal estate, on the death of her aunt, Mrs. Sarah Loveday, in the year 1812, partly by a limitation over in the will of John Loveday, made in September, 1792, but chlefly^under the will of Mrs. Loveday: who, after some inconsiderable legacies to other persons, devised the residue of her estate, real, and per sonal, to Mrs. Fronty, and appointed Dr. Fronty executor. Dr. Fronty proved the will, and took possession of the estate, the whole of which* both real, and personal, he sold before his death, with the exception of a house and lot of land at the corner of Church, and Queon streets, in Charleston, and another lot in Bercsford street, with a brick tenement thereon; Mrs. Fronty, in every instance of a sale of real estate, joining in the conveyance, and relinquishing her inheritance, conformably to the act of assembly. Dr. Fronty converted the whole of the proceeds of the sales of the estate to his own use, never rendered any account of his administration, and never made any settlement on his wife.
    Mrs. Fronty returned to Charleston in the year 1831, proved her husband’s will, and took possession of his estate. She herself died on the 30th December, 1831, having previously executed a last will and-testament, by which, after several small pecuniary legacies to other persons, she devised, and bequeathed, tho residue of her estate, real, and personal, to her adopted daughter, Emma Barton Fronty, the present complainant. By tho same will she devised, and bequeathed, to the same complainant, the bond of the Scotch Church, and the five thousand dollars of City six per cent, stock, heretofore mentioned; devising and bequeathing her own interest therein, and also devising, and bequeathing the same by virtue of the power of appointment contained in the will of Dr. Fronty: and, by virtue of the same power of appointment, she devised, and bequeathed, to the same complainant, the house and lot of land in King street, and one moiety of the hank shares, and other stocks, already enumerated, of the estate of Dr. Fronty. And of her said will the testatrix appointed the complainants, Henry Bailey, and Effingham Wagner, executors; who shortly after her death proved the will, and undertook the execution thereof.
    The defendants, Bene Godard, and John H. Moy, who had survived their co -executor, Charles S, Mey, qualified as executors of the will of Dr. Fronty, took possession of his estate, and were about to sell the same, and remit the proceeds to France, when this bill was filed for an injunction, and for an execution of the trusts created by the power of appointment contained in the will of Dr. Fronty, and the execution thereof contained in the will of his widow. The bill claimed the whole of the real, and personal estate, devised, and bequeathed to Miss Fronty, by the will of Mrs. Fronty; and prayed an account of the rents, issues, dividends, interest, and other profits. And if there were any defect-in the'creation, or the execution of the power, the complainants insisted, that they were at least intitled, to the bond of the Scotch Church, and the City stock; which they claimed the right to follow, as the real estate of their testatrix, contending that the relinquishment of the inheritance to the purchaser, was no gift of the proceeds to the husband: and that, at all events, these securities passed to Mrs. Frqnty; under that clause in her husband’s will, whereby he relinquished to her all his rights, or claims, to the property which she had derived from Mrs. Loveday; a provision in his will which was wholly unmeaning, and inoperative, unless they applied to this bond, and stock. The bill also prayed that an apportionment might be made of the annual, semi-annual, and quarterly interest, and dividends, which had partially accrued during Mrs. Fronty’s life, and to which she was intitled for life, under her husband’s will, but which had been received by the defendants since her death; the greater portion of them falling due only two days after her decease.
    The answer of the defendants admitted the statements of the bill generally; but denied that Mrs. Fronty had any legal title to the bond of the Scotch Church, or the City stock. They also contended, that the power of appointment was not intended to operate on Dr, Fronty’s estate; and that if it were, yet the execution was so excessive, and unreasonable, that it ought.to be either restrained in its extent, or declared altogether nugatory, and void for excess. They submitted the question as to the apportionment of interest, and dividends, to the judgment of the Court.
    The cause came on for a hearing on! the merits before Joiinston, Chancellor, at Charleston, in April, 1832, when some evidence was introduced, which is detailed in his Honor’s decree.
    Johnston, Ch. This case was t.aken up for trial by counsel, on Wednesday, the 25th April, 1832; when Mr. Godard, one of the defendants, was sworn as a witness for the complainants, by consent of parlies.
    He testified, that the bond for six thousand five hundred dollars was received for the lot at the comer of Archdalo street, and Parsonage *ane> S°D by Dr. Fronty to the Scotch Church. The Church wishing to procure a lot from a Mrs. Logan, bought this, and exchanged it to her, for the one they desired to obtain from her. The five thousand dollars of City six per cent, stock was taken by Dr. Fronty for the Clifford street lot, which was taken by the City Council, when the street was widened. Dr. Fronty went to France twice. Each time, before he went, he sold part of the slaves, and other personalty of the Lovedays. Both sales included all. The Dr. came here in 1793, or 4; having been ruined by the troubles in St. Domingo, and possessing then nothing but his profession. Mrs. Fronty often complained that Dr. F. had possessed himself of all her interest in the Loveday estates; and that if he died without a will, she would be destitute. In all Dr. Fronty’s absences, witness was his sole attorney. Fronty’s income varied from three thousand five hundred, to four thousand dollars. Witness remitted to him, in all, about twenty-eight, or twenty-nine thousand dollars. Dr. Fronty took out in 1825, from forty to fifty thousand francs. He also took about an equal sum in 1817. The witness proved a list of Dr. Fronty’s property: which was offered to show that he had had other property, which he sold; and that the sums remitted were not income alone. The list contains seven houses and lots. Dr. F. was fond of accumulating. He told witness before his first visit to France, that he had money in the hands of Hottinguer, banker at Paris. There were also debts due by Fuertes, at Havana, which were not collected by witness, nor by Dr. Fronty, while he was in this country.
    On his cross-examination, the witness stated, that the Scotch bond and the City stock are both payable to Fronty. The other stock also stands in his name; except twenty shares in the South Carolina Bank, in the nameofJohn,andtenin the name of Sarah Loveday. Fronty has thirty in his own name, in the same bank. He was charitable. Had a considerable practice. He was not a man of great property before he married. His wife’s fortune contributed very greatly to his estate. Thinks the remittances exceeded Dr. Fronty’s individual acquisitions.
    The defendants offered no evidence, and here the testimony closed.
    It was contended, that in the appointment made by Mrs. Fronty, to Emma Barton Fronty, she exceeded the power given her by her husband’s will. This matter of excessive and illusory appointments is new in our Courts. No case has occurred in which it has been touched, although in one or two it might have been, if the question had been raised. The English decisions are many of them unsupported by principle. Indeed, it is difficult to believe, that if the question wore res integra, the Courts would have gone half so far as they have. The decisions arc not to be extended.
    
      My impression is, that in the case ^efore me, there is nothing by which the power of Mrs. Fronty, could be limited, except her own discretion. If I were to attempt to limit her exercise of the power, by what should I be governed ? I see no guides in the will If Dr. Fronty had pointed out any purpose, for which he wished provision to be made, for Miss Fronty, the appointment could have been restricted, so as to answer, and not exceed that purpose. But nothing of the sort occurs in the will. ' The appointment must be supported.
    With respect to the apportionment of interest, I am satisfied that the view taken by the bill is correct, and that an apportionment must be made.
    Let the case be referred to the commissioner, to make up the accounts in conformity with this opinion; and when his report comes in, a final decree can be made.
    ' Subsequently to this decree, the. commissioner, to whom the matters of account were referred, made a report, accompanied by two schedules. Schedule A. contained an account, and apportionment, of interest, and dividends, which had accrued partially during the continuance of Mrs.' Fronty’s life estate, and which had been received by the defendants after her death; and this account exhibited a balance due to the Executors of Mrs. Fronty, of $1,439,21. Schedule B contained an account, and apportionment, of interest, dividends, rents, and profits, accrued since the death of Mrs. Fronty, and received by the defendants, to which Miss Fronty was intitled under the execution of the power of appointment; audit exhibited a balance due to her, of $1,241,06. In both schedules a charge was made, and allowed, for commissions on receiving and paying.
    The commissioner further reported a paper produced in evidence before'him, by the defendants, which had been received since the hearing of the cause. This was an agreement executed by Mrs. Fronty, and her brother-in-law, Michael Fronty, at Bordeaux, in France, and registered there on the 23rd February, 1831; by which she relinquished all claim to her husband’s estate in France, and contracted to exercise no rights over the property out of France, other than such as are conferred by the will. This agreement, the defendants insisted, was a bar to the execution of the power of appointment. Its effect upon the rights of the parties, was submitted by the commissioner to the judgment of the Court.
    The complainants excepted to the allowance of commissions on the several sums specified in schedules A., and B., on the ground; that the said sums either constituted a debt due to the complainants by the estate of the defendant’s testator, or are to be regarded as in the nature of specific pecuniary legacies, and are in neither case chargeable ^ commissions, or other exponeos oí' the administration, which must be borne exclusively by the residuary estate in the hands of the defendants.
    The cause came up for a final hearing on the report of the commissioner, and the exception thereto, before Johnston, Chancellor, at Charleston, in January, 1833, when the following decree was made.
    Johnston, Ch. This case comes up for final adjudication upon the report of the commissioner, and an exception thereto filed by the complainants.
    The paper stated in the report to have been produced to the commissioner by the defendants, in bar of the complainant’s claims, is not regularly before the Court. It was not relevant to the matters of account which were referred to that officer; nor can it be regularly introduced in evidence here, in the present stage of the proceedings. The complainants, however, are willing that it should receive the same consideration, and be intitled to the same weight, and' effect, as if it had been offered at the original hearing, But I do not see, that it can, in any manner, affect any of the questions at issue between the parties to the present suit. It is a contract between Mrs. Fronty and her brother-in-law, Mr. Fronty, and can confer no right upon the defendants. If it has been violated by Mrs. Fronty, her executors áre responsible to Mr. Fronty alone, and he is not a party to this suit. It is clear, however, that this contract is. in no particular inconsistent with the will of Mrs. Fronty, under which the complainants claim. Mrs. Fronty merely relinquished her claims to the property of Dr. Fronty, her husband, in France, and agreed to exercise no rights over the property out of France, other than such as are conferred upon her by his will. But the claims which the complainants have derived from the will of Mrs. Fronty, are restricted to the property in this country, and are.founded altogether upon the rights, conferred upon Mrs. Fronty, by the provisions of her husband’s will. Her own will isj therefore, in strict conformity with her engagements.
    The exception filed by the complainants to the commissioner’s report, appears to me to be well founded, and must be sustained. The report is in other respects confirmed.
    It is therefore ordered, and decreed, that the sums allowed for the defendants’ commissions, in schedules A., and B., be stricken out, and that the defendants pay over to the complainants, respectively, the balances specified in schedules A. ,and B., adding thereto the sums allowed in each for commissions. It is further ordered, that the defendants assign and transfer to the complainant, Emma B. Fronty, the various stocks, and securities, which wore bequeathed to her by Mrs. Fronty, by virtue of her power of appointment, as set forth and described in complainants’ bill: that they also deliver to her, possession of the house and lot in King street, in the city of Charleston, which was devised to her by virtue of the same power; or if the said house is at this time on lease, to assign and transfer to her all leases, agreements, and contracts, for the letting thereof, and all bonds, notes, and other securities,' which have been, or, may be taken by them for the rent- of the same; and to deliver to' her all title deeds, and other muniments, and policies- of insuraneb, relating to the said promises, which may be in their possession: and that they likewise pay over to her all moneys which they have received, or may hereafter receive, subsequently to the account taken by the commissioner, for interest, or dividends, of the said stocks, or other securities, and for the rents, issues, and profits of the said house and lot of land, deducting-only the necessary expences of taxes, insurance, repairs, &c. And, as the right of the Executors of Mrs. Fronty, to the balance due on the account, stated and set forth in schedule A., is not contested by the defendants, except as to the sum charged for commissions, it is further ordered, that the payment of the said balance, except as to the sum charged for commissions, be made immediately, unless this part of the decree be specially appealed from, in order that the said balance may be applied to the support and maintenance of the residuary legatee of Mrs. Fronty. It is lastly ordered, that the costs of this suit, be paid by the defendants, out of the residuary estate of their testator.
    The defendants appealed from the several decrees of the Chancellor in this case; and now moved that the same might be reversed, or modified, on the following grounds.
    1. That the devises and bequests by Mrs. Fronty to Miss Fronty, of the property belonging to the estate of Dr. Fronty, under the power, given by his will, to provide for their adopted daughter, constitute a clear case of excess in the execution of a power; inasmuch as the testator intended only a reasonable money legacy out of the estate, the whole of which estate, he expressly directs his executors, after his wife’s death, to sell, and to remit the proceeds thereof to his brother, and his family, in France. And it is submitted, that from the whole tenor of the will and codicil, the French family were the peculiar objects of the testator’s bounty, and that this, his manifest intention, would be clearly defeated, by the disposition of more than one half of his estate, made by his widow, to Miss Fronty, who, though a member of his family, was not a relation: as it appears from the calculation of the amount of the property left Miss Fronty, out of the Love-day estate, and of the half of- Dr. Fronty’s own estate, that she would receive about $25,000, more than the residue of his estate, to be divided among his eight nephews and nei'ces.
    
      ^af; ^le b°n(l °f ^l® Scotch Church, and the City six per cent. stock, although derived from the realty of Mrs. Loveday’s estate, belong to Dr. Fronty’s estate, there having been a reduction into possession by the husband; and it cannot, therefore, pass under the clause of his will, in which he relinquishes to his wife, -his claims on Mrs. Love-day’s estate.
    3. That by the contract entered into by Mrs. Fronty, and her brother-in-law, in France, she for a valuable-consideration, released all claims on his estate in France, and in this country, according to the French law: and that the large bequests to Miss Fronty, are in violation of this contract.
    4. That the amount of $1241,06 decreed to be paid by the executors, ought to be disallowed, on the chief ground of the will of Mrs. Fronty being an excess in the execution of the power granted to her.
    5. That the commissions on the two sums ought to be charged to the respective amounts, and not to the general estate.
    Lance, and King, for the motion.
    Petigru, and Bailey, contra.
    
   O’Neall, J.,

delivered the opinion of the Court.

In order to enable us to pass satisfactorily upon the much contested question in this case, it will be necessary, in the first place, to ascertain the intention of Dr. Fronty, in the power conferred by his will on Mrs. Fronty, “ to make some provision, or portion, to our orphan child,” the complainant: for it must be conceded, that the intention of the testator, whenever it can be legally-ascertained, is to govern. All the rules of construction serve but to enable us to attain-this end. So in determining the extent of a power, the intention of the parties in its creation must constitute the guide. Sugden on Powers, 459. To arrive at this, the whole will must, if possible, be construed together; in order that all its parts may have effect. The different clauses, speaking .of different matters, may be construed in relation to their subjects;; and thus a difficulty may be removed, which might otherwise be insuperable.

In the fifth -clause of his will, executed in Charleston, the -testator devises and bequeaths al-1 the rest of his estate, real, and personal, in Charleston, to his wife, Mary Fronty, during her life.; -‘‘upon the special charge, however, that she will, at her own expence, keep the same in due order, .and condition, make all repairs, pay taxes, insurance, and-other necessary .expences attending the same, and -take all proper ¡steps towards the -preservation, and entertainment thereof” Then follow the -words containing the power: But I ¡do,-nevertheless, ompower my said wife, by her last will and testament, or other instrument signifying her intention, 'to make some provision, or portion, to our orphan child, Augustine Matilda Emma Barton, whom I recommend to her good and generous heart.”

In the succeeding clause, he directs his executors, at the death of his wife, to proceed to sell, and dispose of all" his “ goods, chattels, property, and estate, of all descriptions, real, and personal, aforesaid, and transmit the proceeds thereof, in the safest manner, to Ms brother, Michael, in France, &c., &c.,” and then adds, I do not think proper to make any disposition with respect to the rights, or claims, which I may have on the property of my dear wife, loft her by the will of her deceased aunt, Mrs. Loveday, as I decline interfering, in any manner, with her personal views, and dispositions, which I leave her full liber - ty to make, and execute, at her own pleasure, giving my full assent to any will, or testament sire may make, expressive of the same.”

In a codicil to his will, executed in France, where ho and his family resided at the time of his death, is-the following clause: I give and bequeath to Miss Augustine Emma Barton, orphan, whom, we have brought up, and lives with qs, since the year 1812, a sum of three thousand francs, as a small portion, which wall be paid to her two years after my death, and this portion will be her property, of which her husband will be obliged to give her good security for. To make up this sum, the executors of my will shall sell three of the actions that I have in the Bank of Bordeaux, and I oppose any more being sold.”

Was this legacy of three thousand francs intended as a revocation of, or substitution for the power, is the first question which naturally presents itself. I think it clear that it was not. It does not purport to be in lieu of it; and unless this appears in terms, or the last is utterly inconsistent with the former, both must stand as distinct provisions in her favor. The power to provide for the complainant, conferred on Mrs. Fronty, looked to an event, which might not take place for years subsequent to the testator’s death. In the meantime, the complainant, who was the adopted child of the testator, was to depend altogether on Mrs. Fronty. To prevent this, the testator was willing she should have “ a small portion,” immediately on his death. It is unreasonable to suppose, that he intended six hundred dollars to be all the portion which he ever intended the complainant to receive out of an estate said to be worth, at least, fifty thousand dollars. Again, the “ small portion,” given by his codicil, is out of his actions in the Bank of Bordeaux, and in which his wife was to have no interest, whatever, under his will, or codicil: whilst the power to provide for the complainant, conferred by his will, certainly applies to the property in Charleston. The legacy is a present interest, given by himself: the power he left to be executed, or not, at the discretion of his wife, ^ am’ tbere^01'e> satisfied that the testator did not intend the legacy of three thousand francs as a revocation of, or substitution for, the power, and that both may stand together.

^ what property, his own, or that of his wife, did the testator intend that Mrs. Fronty should make “ some provision, or portion,” to the complainant ? The answer to this question will be obtained by recurring to his will. The power is in the clause by which he had given a life estate to his wife in all his estate, real, and personal, in Charleston; and it would seem, when the whole clause is read together, that there could be but one opinion: viz. that he intended that she should make the provision out, of this property. But it is said, that the anxiety which the testator has manifested, in that clause, for the entire preservation of tho body of his osta-.e, (hiring the life of his wife, from any charges on those who might take it after her death, is inconsistent with the power to make a provision out of it for the complainant. That is a manifestation of the prudence which a pains-taking, and economical old man, would he apt to exhibit in relation to his property, in the hands of one, who was not to have it absolutely ; hut it is no evidence that this desire to preserve it unincumbered, was not as much in reference to the provision to be made in favor of the complainant, and to increase its value in her favor, as of his residuary legatees.

The direction in the succeeding clause to his executors, to sell, at his wife’s death, all his estate, real, and personal, creates the only difficulty on this part of the case. To give these words a literal meaning, would exclude the idea that the complainant should have any provision out of his estate. The meaning of the testator is, however, to be collected from the whole of his will, and the words used must be understood in the sense in which he used, and understood them. He intended that his wife should make some provision for the complainant; and if he did not intend it to come out of his wife’s estate, it must have been from his. In addition to the evidence which the clause, in which the power is contained, furnishes, that the testator intended the provision, or portion, to be made out of his estate, other considerations lead us inevitably to that conclusion. In the last clause of his will, which is the residuary one, he disclaims, in express terms, any intention to dispose of her estate. For the property left her by the will of Mrs. Loveday was the only, estate which she had. In. relation to that, after declining to make any disposition of it, he assigns his reason, “as I decline inlerfering'in any manner with her personal views and dispositions.” If he had supposed he had charged her to provide for the complainant out of it, he would have directly interfered with her free disposition of it, and the reason assigned would-have been utterly untrue. But if he intended the provision to be made out of his own estate, then he had not, in any shape, interfered with his wife’s personal views and dispositions. From the words, therefore, which he has used himself, the best exponent of his intentions, we must conclude that he did not intend to direct his wife to provide, out of her own estate, fór the complainant. But independent of this view, it cannot be supposed that he thought it necessary to empower his wife to rpake a provision out of her own estate, if she thought proper so to do. Every one has the right to devise his own property to any one he may please; but this right of disposition does not extend to the property of another. This is known to the ignorant, as well as the learned; and it is Pot to be supposed that the testator thought any power from him was necessary to enable his wife to devise her own estate: more especially when he disclaims any intention to control her in the disposition of it. Being satisfied that the power given to Mrs. Fronty, was intended, by the testator, to- be applied to, and exercised by a disposition of, his own estate, the direction to his executors to sell, at her death, all his real and personal estate, must be understood to apply to all of it, which she might leave undisposed of by an appointment in favor of the complainant. This satisfies both the intention, and the words of the will. For, “all of his estate, real, and personal, at her death,” is the property which she did not appoint in favor of Miss Fronty. This is all which then belonged to him. The property devised to her by Mrs. Fronty, is no longer his property. He himself, by creating the power, has parted with his interest in whatever passes by its execution.

Having arrived at the conclusion, that Mrs. Fronty was authorized, under the will of Dr. Fronty, to make “some provision, or portion,” for the complainant, out of his estate, it remains to be examined, whether the appointment actually made, can be sustained. Mrs. Fronty’s will devises to the complainant, about two thirds of the property in Charleston, leaving the other third to go to the residuary legatees, under Dr. Fronty’s will.

Powers may be general, or limited. In the execution of a general power, there can be no rule, but the discretion of the party to whom it is confided. In a limited one, the limitations contained in it constitute the rule, by which it is to be executed. In the former, no Court can undertake to control that, which the party creating the power intended to leave to the honesty, good faith, and discretion of the person, to whom he confided it. In the latter, the Courts do no more than execute the intention of the party by whom it is created, by declaring the execution of the power, contrary to the limitations contained in it, void.

/ ^octr^ne illusory appointments, which, in England, hat? /been carried to a most unwarrantable length, and is reprobated by the wisest judges, is, nevertheless predicated on the ground, that the power ^ven ^as not ^eerL exeOTJed according to the intention of the testator. This, if it had been confined to plain and palpable violations of the intention, as indicated by the words of the power, could have produced no conflict between Law andEquity. But when it is attempted to control a discretionary power of distribution among children, by saying that each must receive a substantial part, it is to substitute the ■•discretion of the Court for the discretion of the person, to whom the ipower is confided. \ It is creating an equity against, and above the law, when it is our duty to follow, and obey the law: to declare it, ¡not to make it.

But the doctrine of illusory appointments has nothing to do with this case. That applies only where there is an obligation to appoint something to each of several objects of the power, and a merely illusory share is given to some one, or more of them. The complaint here is, that too much, not too little, has been done for the complainant. The power executed in her favor, looks only toiler. No other person is interested in its execution. The interests of others may be abridged by its being executed, but they cannot complain, if it exists, as we have already seen it does, unless some limitation, contained in it, has been exceeded. Does’ the execution exceed the power ? That is the only question. If it does, then it follows, that the complainant cannot take any thing under it.

There are three modes in which a power may be exceeded: 1st injhe objects; 2nd. in the interests; or 3rd. in the conditions annexed to the gift. Sug. Pow. 533. In relation to the first, the objects, or person, in whose favor the power is created, and the third, as to the conditions, there is no objection to the execution of the power in this case: it is as to the second, the interests, or rather the value, of the “ provision” made by the will of Mrs. Fronty, in favor of the complainant, that the execution of the power is alleged to be excessive.

To sustain this objection, it must appear, that more of the estate of the testator has been appointed to the complainant, than his will authorized. If this could be clearly ascertained, the appointment of the excess would be void. But if it is excessive, and the boundaries between the execution and the excess are not distinguishable, it would, as Mr. Sugden observes, be altogether bad. Sug. Pow. 549. So that really the question, now to be decided, is whether the complainant is to receive the whole provision made for her by the will of Mrs. Fronty, out of the estate of Dr. Fronty, or nothing. For it is in vain to say, that any mode exists, by which we can ascertain, how much she ought to receive from his estate, if the will of Mrs. Fronty is not to be our guide. Every .one would say she ought to receive something; but the opinion of each would ^fix that something according to his own standard of right and wrong. “ In the multitude of counsellors there is safety;” but it is seldom that certainty and precision, as to either amount, value, or truth,' are obtained from a multitude of opinions.

What is the provision, or portion, which the will of Dr. Fronty authorized to be made? Thé will must answer the question; for it is to that we must look for the limitations of the power, if there are any. It is, “ but I do nevertheless empower my said wife, by her last will and testament, or other instrument signifying her intention, to make some provision, or portion, to our orphan child, Augustine Matilda Emma Barton, whom I recommend to her good and generous heart” The true question on this' clause is, has the testator left the nature, and amount of the provision, to the discretion of his wife ? If he has, then his confidence in her must be held to have authorized any disposition in favor of the complainant, be it much, or little. For after all that has been said, and written, on the subject of the execution of powers, the only principle which can be safely extracted from the cases is, that where a power of appointment is to be exercised according to the discretion ,of the person to whom it is committed, no appointment, however unjust and unreasonable it may seem, can be regarded as excessive; but where any 'limitation is placed to the exercise of his discretion, the Courts will control the execution of the power.

It is said here, that some provision, or portion, did not authorize a devise to the complainant, of two thirds of the testator’s estate. Why? It is, in the word’s of the will, some provision, or portion. It is not the whole estate. If it was, there would be some plausibility in the argument, from the residuary clause; but I am not sure, that an appointment of even'the 'whole estate, would have been excessive. There is nothing in the power which restricts the gift to be made, in amount: and it is apparent, that the testator did not intend that his wife should dole out a scanty pittance, with a niggardly hand, to the complainant; for he recommends her to the kind and generous heart of his wife. And what was to be expected from the kind and generous heart of a childless woman, to her adopted daughter ? Could less be expected, than that she would act a mother’s part towards her? Such would be the ordinary calculation of every one acquainted with human nature.

The provision is liberal, but I cannot say that it is excessive. I can see nothing which enables me to say, that the testator did not in» tend that two-thirds of his estate should be given to the complainant: and if the intention to restrict the donation cannot be ascertained, it is manifest that the testator did not intend that it should be restricted; but that his wife should provide for her, as she might think best, and most suitable to her wants, and prospects.

It will be only necessary to refer to a few, out of the many, cases on this subject, to shew, that when, the testator leaves the appoint-' ment to be made to the discretion of the person who is to make it, any appointment which he makes, must be sustained.

The case of Cook and Wife v. Farrand, and others, 7 Taunt. 122, approaches more nearly to this case, than any other, That is, it is true, the opinion of a Court of Law, but it was on a case sent from Chancery for the opinion of the judges. John Sanders devised “ all the residue of what he should die possessed of, or in expectancy, of what nature, or kind soever, in that, or any other country, to his wife, E. Sanders, for her natural life, reserving to her full power to will away any part, or proportion, of his said residue, at her decease; and after that period, he bequeathed the said residue, and remainder, of what was undisposed of by his wife, to his daughter, Sophia Cook, (the plaintiff,) to her, and the heirs of her body forever.” The widow E. Sanders, by her will, appointed the whole residue to Far-rand, Cathcart, and Oldershaw, in exclusion of the plaintiff; and the Court held that the power was well executed. In that case it was as manifest, as it is in this, that the testator looked only to an appointment of some part of his estate by his widow; but still the power was general, and her discretion unlimited by any thing, which could enable the Court to say, that the testator intended that the power should not be executed, beyond such a part of the estate. As was well said, in the argument of this case, the gift of the residue for life, with the power of disposing of any part of it, turned the life estate into an absolute one, and hence the devise was good. So in the case in hand; the devise to Mrs. Fronty, for life, is of the residue of his property in Charleston, with the power of disposing of some part of it, with only one restriction, that it should be in favor of the complainant. This did not make her legal estate absolute for all purposes, but it made her estate for the purpose of the power absolute, and the analogy between the cases, is, in this respect, complete.

In the case of Wollen v. Tanner, 5 Ves. 218, James Winter, by bond, bound his exeéutors to pay £600, after his decease, unto and among all such children of Susannah Wollen, in such parts, shares, and portions, manner, and form, as the said James Winter should by deed or deeds, writing or writings, or by his will, appoint, and in default of appointment, then unto, and among, all the children of Su-Sannah who might survive the said James. James Winter, by his will, gave the whole £600, to Thomas Wollen, one of the children of Susannah, and it was'held by the Lord Chancellor to be a good appointment. The words all such children,” reserved to himself the discretionary power of selecting, from among them, the ’object, or objects, of his bounty. It would have seemed, that at least more than one ought to have been selected, to have satisfied the words; but there was a right to select, and no rule by-which its exercise could be regulated: and hence, being wholly arbitrary, and discretionary, the Court could not declare the appointment to be bad. The reason of that case touches this. For here some provision is to be made. How much ? Who can tell 1 The person to whom the testator confided the power, can alone answer the question, by her appointment. For it is wholly discretionary as to the amount, and her opinion of the proper portion of his estate to constitute that provision, is more apt to coincide with what were the testator’s wishes, than any conjecture which any other human being can make.

The case of Long v. Long, 5 Ves. 445, was the case of a power under marriage articles. Coombe Farm was, according to their terms, purchased, and settled to the use of the husband, for life; remainder to the use of the wife, for life, for her jointure, "and in bar of her dower; remainder to the first and other sons in tail male; remainder to the daughters, as tenants in common; remainder to the right heirs of the husband: with a power to charge the premises with the payment of such sums of money as he might, by deed, or writing, or by will, appoint in favor of the younger children of the marriage^ He devised Coombe Farm, to be sold, and appointed the money among his younger children, excluding the eldest son. The power to charge, and appoint, was held well executed by the sale, and appointment of. the proceeds; for the power to charge was unlimited in amount, and might have been exercised to the full extent of the fee simple value: and a sale was, in effect, a charge to this extent. In the appointment of the proceeds, the discretion of the father was not restricted, in either the amount, or the objects. His right of selection among the younger children was not limited; and as to his eldest son, he could not complain of an act of the father, which, although it conveyed the estate from him, was, in effect, the same as a charge to the fee simple value, which the power gave the father the authority to make.

The correctness of this decision is questioned by Mr. Sugden, on the authority of Tankerville v. Coke, Mosely, 146; and there is certainly some discrepancy between the two cases: but still, I see no reason to find fault with the case of Long v. Long. It is decided upon what seems to me the correct principle, that, when a power is discretíonaíy as 10 ^le objects, and interests, and without condition, the appointment is good. In Tankerville v. Coke, Mr. Baron Comyn states what I should not be willing to admit, in the general terms usec^: “ I allow,” says he, “ that this Court will take care a general power be executed in a reasonable manner, but it will not interpose if the execution is not apparently unreasonable.” If, by a reasonable manner is meant, that the discretion of the Court is to be substituted for .that of the person making the appointment, under a general pow: er, I deny it to be law. The rule is, that if any boundary is fixed to the exercise of the power, or can be ascertained, by a reasonable construction of the words, to have been intended, then the execution must conform to it, otherwise Equity, as well as Law, must hold it well executed.

In Bax v. Whitbread, 16 Ves. 24, Lord Eldon, while sustaining the doctrine of illusory appointments, yet admits, that when there is a discretion allowed to the person who is to execute the power, the Court ought not to interfere. Pie observes: with regard to the quotation, in the case of Butcher v. Butcher, 9 Ves. 382, which I take to be Lord Nottingham’s words, from his own manuscript, speaking with all due humility, I should have found it very difficult, construing that will, to say the wife was not intrusted with a discretion, because there was no convenience in trusting her ; the only question in judicature ■being, not wpon the convenience, but whether she was intrusted with the power. As I read the will, whether convenient, or not, she was intrusted with the power; and speaking with the same humility, I could not have declared, in judgment, that it seemed to me very ápparent that the true meaning was an equal provision.” Under the will, in the case before us, the wife has the power to make some provision, or portion,” for the complainant; and as to the nature, and amount of it, she was intrusted with a discretion, which, having been exercised, we have no right to interfere with it. She was intrusted with the power,” and has executed it, and the appointment must be held to be good.

■ This dispenses with the necessity of considering the question, whether the- City stock, and Scotch Church bond, are the estate of Mrs. Fronty. Whether her’s, or her husband’s,. is perfectly immaterial: they will, in either event, go to the complainant, under her will, according to-the view taken of the power of appointment.

Her power of appointment is not affected by the contract in France with her brother-in-law, Mr. Fronty. Her rights, under her husband’s will, were intended to be neither increased, nor diminished by it.

In relation to commissions, I concur with the Chancellor. The bequest to Mrs. Fronty, carried all the rest of the testator’s property in Charleston, to her, in specie. Upon his executors assenting tp the legacy to her, the stock vested in her, and the executors had no right to receive the dividends, as executors, afterwards. At her death, her will carried to Miss Fronty the property bequeathed to her, and her executors assenting to the legacy, it vested in her. She alone was intitled to receive the rents, dividends, interest, or principal of the bond. The executors of Dr. Fronty, having received for another, that which, as executors, they had no right to receive, can give them no title to commissions.

It is, therefore, ordered, and decreed, that Chancellor Johnston’s decree be affirmed.

Johnson, J., and Harper, J., concurred.

Decree affirmed.  