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the Countess of Bute the absolute disposal of it. The manner of doing it was, by a direction to his trustees to convey and dispose of the same as his daughter should direct and appoint, by writing under seal, in the presence of three witnesses; and the daughter being a married woman, she could not, during the coverture, exercise her powers of ownership so conveniently in any other [483] manner, even over the freehold collieries, nor at all over the leasehold, of which the greatest part of this property consisted. That the power of disposing, devised by the testator to his daughter, was not accompanied with any trust; and though he had requested her to direct the money arising from the same, to be applied in such manner as the residue of his personal estate, yet that request could not raise an implied trust in her, by which her ownership should be controuled; because the testator himself had declared, that he had given the power to his daughter, in order to prevent the expence and trouble which must attend the management of affairs of such a nature, under the direction of the Court of Chancery. And this amounted to the same thing, as if the testator had said in words, "I mean that my request shall not be construed into a trust to controul the power." For, taking it to be the case of a trust, either express or implied, it is plain in law, that the jurisdiction of the Court of Chancery would controul it; and the whole must be liable to account there. But it was submitted, that such a construction could not be made, without contradicting express words which had conferred a right of disposing so absolute, that it was impossible to say where the power ended, and the trust began. That the rule of construing such devises, which has obtained in similar cases, is, that where a testator bequeaths the ownership of lands, or an absolute power of appointment, uncontrouled by any express trust, though accompanied with a request as to the disposition of the property, or the exercise of the power, a Court of Equity will not presume that the testator intended to raise an implied or constructive trust, inconsistent with the express estate and interest devised; and therefore, will not construe such bequest into legatory words of trust. And according to this rule, strengthened in the present case by the clearest declaration that the testator did not intend his daughter should be considered as a trustee, the request accompanying a devise of the absolute power of disposal, could not be obligatory, and amounted in law, as well as common language, to no more than a bare recommendation; leaving full power in the Countess whether she would comply with it or not, or in what other way she would execute her power, and adapt the execution of it to the circumstances of her family, and the dictates of her own prudence and honour. If the testator had only intended to give the Countess a power to sell the premises, but that the money arising from the same should be applied in like manner as the residue of his personal estate; the obvious method of effectuating that intention would have been, as in all such cases, by directing trustees to sell with her approbation, and declaring an express trust of the money arising by such sale. It was however very observable, that the testator had not given to his daughter merely the power of selling. In one place he had directed the trustees to convey and dispose as she should direct, and in another he had declared, that he had given her the absolute disposal; which power might be exercised by gift, as well as sale, and was synonimous to ownership. He [484] was not only averse to the sale of this part of his property, which from its nature could not produce a price adequate to the income it yielded; but from his wishes expressed in the request, if he had any anxiety, it was rather to have it so managed, as to form a constant fund, by the accumulation of profits, for increasing that fortune which it had contributed to raise. So that, whether the request in this case was obligatory, as a trust in law and equity, seemed to be the sole question.

On behalf of the respondent Mr. Stuart, (for none of the other respondents contested the matter,) it was said (T. Sewell, G. Perrot) to be apparently and manifestly the view and intention of the testator, and was the general plan of his will, to intail his whole estate, real and personal, on the second son of his daughter the Countess of Bute, making her at most but tenant for life; and for perpetuating the same as much as might be in his daughter's family, there appeared an anxiety throughout the will. He had made his daughter tenant for life only of the West-Riding and North-Riding estates, but not without impeachment of waste; for as the West-Riding estate was well wooded and timbered, he had directed the money