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appointment should be adjudged good and effectual, how far the same ought to extend; for that he had been informed and believed, that on the 31st of December 1760, the account of the said collieries was made up and adjusted between the testator and his partners; at which time there was due from several persons for coals, sold by the partners, £15,576 4s. 3½d. and that there was at the same time remaining in the hands of Messrs. Child and Co. the bankers to the testator and his partners, as the balance of their account, £8521 9s. 5d. and in the hands of Mr. Fetherstone, the agent to the partnership, £1502 7s. 2¾d. and that there might be due at the testator's death other sums on account of the said collieries: and the respondent also submitted, whether in all events the testator's third part of the profits and balances of the said account, so made up and adjusted between him and his partners in his life-time, and also one-third of any other sums which might also be due at the testator's death on the said partnership account, should not be considered as part of the testator's general personal estate, independent of the said collieries and insisted, that in case the testator was at his death entitled to any sum of money, secured by mortgages upon any estates in the said counties of Northumberland and Durham, and the Court should be of opinion, that the said appointment was good and effectual, yet that it ought not to be construed in such a manner as to affect such sums, so due on the said securities, by reason of the locality of the lands which were made a security for the same; but that such sums of money ought to be deemed part of the testator's general personal estate, and as such subject to the trusts declared thereof by his will.

The respondent Earl Gower and Sir Matthew Lamb, by their answer, admitted that they had acted in the trusts of the will, and submitted to the judgment of the Court, how far the deed of ap-[482]-pointment made by the Countess of Bute extended. And the respondent Edward Wortley, the testator's son and heir, put the appellant upon proof of the will.

Issue being joined in the cause, several witnesses were examined on the part of the appellant, to prove the due execution of the testator's will, and also the execution of the said deed of appointment, and to shew that the balances mentioned in the respondent the infant's answer, were a necessary fund to answer the demands on the partnership; and a witness was examined on behalf of the respondent the infant, to prove the balances of cash on the partnership account to be as stated in his answer.

Publication having passed, the cause came on to be heard before the Lord Chancellor Henley, on the 1st and 2d of July 1761, when his Lordship went through the whole of the cause, except the reply by the appellant's counsel, and then stated to them for their further consideration, some matters which, had occurred to his Lordship, as to the construction of the testator's will upon the question under consideration; and that the appellant's counsel might have full opportunity to consider the same, his Lordship was pleased to adjourn the reply to the 10th of the same month, and afterwards took time to give his opinion, until the 23d of November following; when his Lordship was pleased to declare, that the testator did not intend to empower the Countess of Bute his daughter, to direct the trustees to dispose of the premises for her absolute benefit, or without consideration; but that he intended only to give her a power to have the same sold, and that the money arising therefrom should be applied in the purchase of lands, in the same manner as the clear profits of the premises, in case she had made no appointment, and that therefore the appointment made by her to the appellant was void; and he therefore dismissed the appellant's bill, with costs to be taxed as against the respondent Edward Wortley, and without costs, as against the other respondents.

From this decree the appellant thought proper to appeal; insisting (C. Yorke, A. Wedderburn), that the peculiar circumstances attending the estate in question, which, upon a variety of probable events or sudden exigencies, might require the advance of considerable sums of money for making new purchases, or might create a necessity of selling off parcels of land, to answer the ends of this partnership adventure, tended to make the management of it by trustees not only troublesome and hazardous, but incompatible with the nature of a partnership. That these circumstances seemed to have induced the testator to devise his collieries differently from any other part of his fortune, and he had therefore given to his daughter