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and that accordingly she did, by virtue and in pursuance of such power, sign, seal, and duly execute, in the presence of three credible witnesses, a writing or deed-poll, dated the 11th of March 1761, whereby she directed, limited, and appointed all the said collieries and coal mines, and all such stock in the coal trade, and all such vessels, ships, and boats, and also all such lands, tenements, hereditaments, goods, and chattels, in the said counties of Northumberland and Durham, which her late father was seised or possessed of, or interested in, [480] or entitled unto at his death, and which by his said will he gave and devised to the said Earl Gower, Godfrey Wentworth, and Sir Matthew Lamb, their heirs, executors, administrators, and assigns respectively, upon trust and subject to her disposition as aforesaid, and all benefit and advantage of the said premises, unto the appellant her husband, his heirs, executors, administrators, and assigns, to and for his and their own use and benefit absolutely for ever, according to the nature or tenure of the said real and personal estates and premises respectively, which she had power to dispose of by virtue of her said late father's will.

And the appellant insisting, that by virtue of such appointment made in his favour, and for his benefit as aforesaid, he was become absolutely entitled to all the testator's real and personal estates in the said counties of Northumberland and Durham, soon afterwards exhibited his bill in the Court of Chancery against all the respondents; praying, that the respondents, Earl Gower and Sir Matthew Lamb, might be decreed to convey to, and to the use of him, his heirs or assigns, or as he or they should direct, the several messuages, lands, hereditaments, and real estate, in the said counties of Northumberland and Durham, late belonging to the testator, and devised by his will, subject to the disposition and appointment of his said daughter the Countess of Bute as aforesaid; and might also assign to him, his executors, administrators, and assigns, or in such manner as he or they should appoint, all the messuages, lands, tenements, collieries, coal mines, and hereditaments, in the said counties of Northumberland and Durham, which the testator was possessed of or entitled to at his death, either in his own right, or in partnership with any other person, by virtue of any lease or leases under which the said premises were held; and might deliver up to him all the stock and utensils in the coal trade, wherein the testator was engaged at his death, and all the vessels, ships, boats, horses, carts, carriages, engines, implements, and all other effects, in the said counties of Northumberland and Durham, which were used and employed at the testator's death in such trade; or in carrying on the same, or in working or winning the said collieries and coal mines, and such parts or shares of and in the said several things, goods, chattels, and effects, in the said counties of Northumberland and Durham, as the testator was possessed of, interested in, or entitled to at his death, or which were then employed in or about the said collieries and coal trade; and might also pay to the appellant all such sums of money as had been received by them since the testator's death, by or out of the stock in the coal trade, or the produce or profits thereof; and might likewise assign to the appellant all such securities as the testator was at his death possessed of, in any lands or hereditaments in the said counties of Northumberland and Durham, or either of them.

The respondent James Archibald Stuart, an infant, by his guardian, insisted by his answer, that the said deed of appointment [481] made by the Countess of Bute his mother, in favour of the appellant, was void; and that she had no power by virtue of the testator's will to limit or appoint the collieries, estates, and premises in question, to the appellant; for that, although the testator had given such power of directing and appointing such estates and premises as in the will were mentioned, yet that such power was not absolute, but only a power sub modo, and connected with a trust, and controuled by a subsequent part of the will, wherein the testator requested the Countess his daughter to direct the money arising from the said estates and collieries, to be applied in such manner as he had directed the same, in default of her direction and appointment; and that such request ought to be deemed as directory, and construed as legatory words of trust, and ought to controul the Countess in the execution of such power, in favour of such persons to whom the testator directed the same to go in default of her appointment; and that he the respondent was by virtue of the said will, entitled thereto as tenant in tail, on the death of his said mother. And he submitted, that in case the said