
    *Knight v. Yarbrough.
    June, 1820.
    Power of Appointment — Imperfect Execution — Effect.— W. devised property to his wife with power to sell, &c., or to dispose of among children and grandchildren as she pleased: the wife gave part to a •son-in-law, and made no provision for some of the children, and some of the grand-children: this is an imperfect execution of the power, and void.
    Appointment — Rights off Appointee in Residue.— Where an object of the bounty has received any thing by appointment, he can claim a share of the residue, only on bringing what he received into the collatio bonorum.
    Same- -Improper Execution — Chancery Practice-— Where the appointment is improperly executed, and a court of equity is called on to correct it equality is the rule.
    George Walton made his will, containing among other provisions a clause, bequeathing to his wife Martha, about four thousand acres of land in Kentucky, one half of a mill on Meherrin River, with about six hundred acres of land adjoining it, with all the negroes, debts, stock, &c., not previously devised, “to live upon, pay my debts, and dispose of among my children and grand-children, as she pleases, and should she find it necessary to sell, all or either of the lands, to convey and make titles thereto, to any person or persons whatsoever, which title so made shall be valid to all intents,” &c. this will was recorded in July 1797.
    Martha Walton afterwards made her will, which was recorded in October 1814, by which she gave to Thomas Walton, (her son) certain slaves, &c., and to his children by name, certain other slaves. To her grand-daughter Fanny Moore, a pecuniary legacy. The other children of her daughter Moore she added, were intentionally preter-mitted. To her son-in-law Joseph Yar-brough, she gave the half of the mill and its appurtenances on Meherrin River. The residue of her estate, she desired *might be divided into five equal parts, of which, one was given to her son Thomas Walton; one to the children of her daughter Temperance Yarbrough; one to the children of her daughter Susanna Morton — Hughes Morton being excepted; one to Robert and Thomas Walton sons of her son Robert; and the remaining fifth to her daughter Sally Bitts. Her daughter Martha Knight, and her son John B. Walton, and all her grand-children not expressly provided for, she added were intentionally omitted.
    Woodson Knight and Martha his wife, who was a daughter of George and Martha Walton, together with several of the children of Knight and his wife, brought their bill in Chancery, complaining, that the power of appointment conferred on Martha Walton by the will of George, was improperly executed; and praying, that the execution might be decreed to be void. The devisees of Martha Walton were made defendants to the bill.
    The Chancellor decreed, that the widow of G. Walton by his will, had power to dispose of the property in dispute among the children and grand-children as she pleased, and that she had well executed the power, except in devising half the mill, &c., to Joseph Yarbrough who was neither a child nor grand-child of the testator, but a son-in-law. He also decreed, that this moiety on the death of M.artha Walton vested in the heirs of George Walton; and ordered an account of the profits, &c. of the mill by a commissioner; who was directed, to report the value of the mill, the number of ¿eirs of G. Walton, &c.
    In vacation, one of the plaintiffs petitioned the Chancellor for an appeal from this decree the’ interlocutory, because the decree was erroneous, affected the rights of the parties, and an appeal in that stage of the cause might save the expense of the reference. The Chancellor refused the appeal. In which he was overruled by a Judge of this Court, and now the cause was argued on the merits by Leigh for the appellant :
    *Who said, it was the manifest intention of the testator, that each child and grand-child should have a share.' — And under the clause itself, she could not preter-mit any object of the testator’s bounty, or make the appointment illusory by giving a trifle. Equalit3' is equity in such cases.
    This case is to be argued upon authority: and on English authority, for there is no case in point, which has occurred in Virginia ; Fleming and Swan certainly is not.
    In Equity, powers to appoint are trusts, () and where a power is given to dispose of the subject at discretion, in whatever words, the appointment is improperly executed, if a mere trifle be given to any object of the bounty, and more so, if any object be entirely pretermitted. () The only case in which a variance from this doctrine appears, is that of Burrell v. Bur-rell, () But there the devise was, that the wife should make such disposition among the children, as she should think proper, or they best deserve. A guinea only was given to one, and the power was held by Lord Camden, to be well executed; because the wife had a discretion as to the objects, as well as the fund, by the words; and might have omitted the son altogether.
    There are many decisions as to what in equality will avoid an appointment; 2001. out of 18,0001. and 1001. out of 24,0001. have been held not to be illusory, () But in those cases, something was given to all, which was not done in the case before us; and then, the appointment is *clearly void, () The case of Alexander v. Alexander() seems opposed to all the cases on this point: for there must be a power given by the will to select some, in exclusion of others, to justify the omission of any one.
    This power is not well executed even at law, for there are no special reasons existing, to justify the exclusion of any of the objects. No misbehaviour is imputed to any of them, ()
    Another provision to be sure, will authorise a pretermission. But this must be a provision bj' the person charged with the appointment, ()
    And the death of the cestui que trust will justify an omission, ()
    The case of Morris v. Owen() does not affect this. There a power was given, to appoint among children, and the court held it error, to give a portion to a grand-child; and giving a slave to one of the children during the life of the person charged with the appointment, was held a good execution. In this case, I admit the appointments as to slaves given during Martha Walton’s life, to be well executed: but not so of those made by her will. If the will be no execution of the power, the estate must be distributed according to the statute; if it be a defective execution of the power, this court will supply the defect, and execute it equally. () And the slaves given in Martha Walton’s life must be included, in ascertaining what is equality.
    Wickham contra.
    Beside Morris and Owen, Coles v. Brown is a decision of this court, on the doctrine of appointments, *in which, an appointment was supported in a stronger case for the other side than this.
    This is equally a trust, whether the wife have power to select or not. An appointment of a penny to one is good at law, where all are to receive something. But a court of equity it is said will not allow such inequality. Yet it will allow inequality, and that very gross. One ninetieth part of the subject devised, has been supported even inequity, () All the judges regret, that such doctrine has prevailed, yet it is admitted. In Spencer v. Spencer, () the court expressed the difficulty it felt, on the subject of illusory appointments. The rule deducible from the English authorities, applies only to cases, in which all the objects of the bounty are in equal degree related to the testator, and is inapplicable to a case like this, of children and grand-children.
    The word among, does not necessarily mean all, but may be answered by dividing the subject between any number of the persons entitled; and at pleasure, and in her discretion, are different things ; one confers an arbitrary, the other a limited power: another point in which this case is distinguishable from the English.
    
      
       Appointment — Rights of Appointee in Residue. — See principal case cited with approval in Davis v. Rowe, 8 Rand. 898.
    
    
      
      Wiils — Construction—Power of Appointment.- In Mitchells v. Johnsons, 6 I.eigh 461, 472, a testator bequeathed to his wife slaves, etc., for life with a power at her death to dispose of them among the lineal descendants of the testator as she might thinlt proper. The widow renounced the will and took her dower of the testator’s real, and her distributive share of his personal, estate, Cabb. J.. citing the principal case, said that the power of appointment vested in her made a trustee for the lineal descendants of the testator and no act of hers or refusal to act could disappoint that trust; that, notwithstanding her renunciation of the will, he considered that she might have exercised the power of appointment; and, having neglected to do so, equity would interpose and execute the trust; and in doing so, it would take the statute of distribution for its guide, where it was necessary.
      Por other cases interpreting wills and basing their decisions partially upon the principal case, see foot-note to Harrisons v. Harrison, 2 Gratt. 1; Mil-hollen v. Rice, 13 W. Va. 563. See the principal case also cited in Thrasher v. Ballard, 35 W. Va. 526. 14 S. E. Rep. 232.
    
    
      
      (a) 4 Ves. jr. 708 ; 5 Ves. jr. 495.
    
    
      
      Cb) Gibson v. Klnven, 1 Vern. 66. The case of Wall v. Turbóme, 1 Vern. 355, 414 is ill reported, as is shewn by the case of Astry v. Astry, Prec. in Chan. 256. See also 5 Ves. jr. 858; 2 Ves. 640; 1 Br. Ch. 450 ; 2 Br. Ch. 344 ; 3 Ves. jr. 351, 714; 4 Ves. jr. 77.1; 5 Ves, jr. 362, 849. All of which shew appointments grossly unequal, and much more, appointments where some objects of the bounty are omitted, to be void.
    
    
      
      (c) Amb. 660.
    
    
      
      (d) 9 Ves. jr. 382, 4; lOVes. jr. 31.
    
    
      
      (e) 2 Vern. 513: 1 P. Wms. 149; 1 Atk. 349; 1 T. Rep. 439, note; 1 Mod. 189; 6 Ves. jr. 793.
    
    
      
      (f) 2 Ves. 640.
    
    
      
      (gr) 1 Ves. 59; 2Eci. Ca. 492-3; 5 .Ves. jr. 855-6; 9Ves. jr. 382.
    
    
      
      (h) 5 Ves. jr. 856, 861; Cas. Tern. Talb. 72; 2 Ves. jr. 326 ; 5 Ves. jr. 445; 9 Ves. jr. 426.
    
    
      
      (i) 1 Ves. jr. 299.
    
    
      
      (k) 2 Call 520.
    
    
      
      fl) 2 Com. Dig-. 359-60.
    
    
      
      (m) 9 Ves. jr. 382.
    
    
      
      (n) 5 Ves. jr. 366-7.
    
   By the Court.

The Court is of opinion, that by the true construction of the will of George Walton, as to the estate which is the subject of controversy, the testator intended, to create a trust in his wife, for the benefit of his children and grand-children ; and to empower her, to appoint the same among them, in such proportions as she might think proper; so that each object of his bounty should nevertheless have a reasonable share; that is to say, that she should appoint such share to each child alive, at the time of such appointment; and to the children of such child as should be then dead, and who in *such case are to represent their ancestor; and that it was not his intention, that an appointment should be made to the child, or children of any child alive, at the time of such appointment, or to one child of a deceased child, in exclusion of the others; unless such last mentioned appointment, would not operate to deprive the others of a reasonable share.

According to these principles, if Martha Walton the trustee, aforesaid, appointed, by act consummated in her life time, any portion of the trust fund to the child or children of a child of the testator, in the life of such child; such appointment is void; but if such appointment was made after the death of such child, then the grand-children in this case, representing their ancestor, being objects of the trust, and entitled toa reasonable share, such appointment was good; and if made to one or more of such children, in exclusion of others, ought to be confirmed ; if a sufficient fund shall remain, according to the principles of this decree, to give the other children a reasonable share of the proportion to which these children shall be found entitled, as representing their ancestor; otherwise, it is to be added to what may be assigned to those representing that stock, and the whole equally divided between them. So too if the trustee appointed, as aforesaid, give any portion of the trust fund to a child of the testator, such appointment is to be confirmed, if sufficient remains to give each object of the bounty, as above-designated, a reasonable share of the whole fund; otherwise such appointment is to be declared void, as not being conformable to the trust.

We are further of opinion, that all the appointments attempted to be made in and by the last will of Martha Walton, ought to be declared void; they being repugnant to the intention of the testator, in the particulars before declared.

We are also of opinion, that if any appointment, made as aforesaid, shall be declared valid under the principles 'x'herein stated, that the object or objects in whose favor such appointment shall so have been made, will not be entitled to come in for a share of the residue of the trust fund, without bringing into account, the subject so appointed ; the correct rule being, that when the trustee, who alone is confided in, to make a discrimination as to quantity, fails to do so, according to the confidence reposed, the Court must adopt equality as the rule: it would be a departure from this rule, to divide the residue among all the objects; and this is the more reasonable, in as much as the person having the power may not have intended the inequality which would thus be produced.

The decree is therefore to be reversed, and the cause remanded; that all parties, necessary to a final decision, according to these principles, may be made, and a final decree be pronounced, agreeably thereto. 
      
      BaooKE absent.
     