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I BROWN.

BUTE (EARL OF) v. STUART [1762]

was therefore unnecessary to make it any part of the issue, to try on what day he was born, the time of his death being the only thing necessary to be found, in order to ascertain whether he attained twenty-one; and it was certain, that if he lived to attain that age, he was absolutely entitled to the estates in question, and that they descended on the respondent William Sansam as his heir at law. Now the rule of law is clear, and has been established by many determinations, that if, as in the present case, a person be born on the 16th day of a month, and be alive on the 15th day of the same month twenty-one years afterwards, that person has attained his age of twenty-one, and that a will devising lands, made by such a person on that day, is a good will; because the law makes no fraction of a day: and therefore the issue directed was material, and (as it was certain that Thomas Sansam did not survive the 15th of August 1746,) was framed in the most advantageous manner to try the fact between the parties; for if the jury found that Thomas Sansam died on the 15th of August 1746, he had attained his age of twenty-one; if they found he did not die on that day, he could not have attained his age; but as the jury found that he died on the 15th, the decree of the 5th of July 1766 was right of course; there was an end of the claims of the plaintiffs in the cause, and the defendants the Sansams were entitled to have the bill dismissed.

[476] After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree and order therein complained of, affirmed and it was further ordered, that the appellants should pay the respondents £100 for their costs in respect of the said appeal. (MS. Jour. sub anno 1774–5. p. 281.)

APPOINTMENT.

Case 1.—John Earl of Bute,—Appellant; James Archibald Stuart, and others,—Respondents [28th January 1762].

[Mew's Dig. x. 1354, 1519, 1534; xv. 1476. See also 2 Eden, 87, 106.]

[A. by will devised his collieries, etc. to trustees, upon trust, to dispose and convey the same in such manner as his daughter M. whether sole or covert, should direct or appoint; and for want of such direction or appointment, to apply the money arising thereby to certain purposes in his will mentioned. He then declared, "that though his meaning was to give his said daughter the absolute disposal of the said collieries, etc. to prevent the expences and trouble that must attend the management of affairs of such a nature, under the direction of the Court of Chancery; he requested his said daughter to direct the money arising therefrom, to be applied in such manner as he had directed the same in default of her direction and appointment." The daughter made an appointment in favour of her husband absolutely. But this appointment was held to be void, as being contrary to the testator's intention.]

Edward Wortley, esq. by his will dated the 23d of May 1755, gave and devised all his manors, lands, tenements, mines opened and unopened, and hereditaments, in the West-Riding of the county of York, and also his freehold estate in Tintagel, in the county of Cornwall, (subject to an annual rent-charge of £1200 to the Lady Mary Wortley his wife, and of £1000 to his son the respondent Edward Wortley, for their respective lives, and to other annuities therein mentioned,) to and to the use of the respondents Earl Gower and Sir Matthew Lamb, and to Godfrey Wentworth, esq. and their heirs, upon trust to permit his mansion houses, with the appurtenances, in the West-Riding of the county of York, to be held and enjoyed by his daughter Lady Bute, for her life, and to pay the rents and profits of the residue of the premises to her, for her separate use; and after her death, in trust to pay the rents and profits of all the premises into the proper hands of the respondent Edward Wortley, and after his death, in trust for the first and

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