Page:The English Reports v1 1900.pdf/722

to be raised by sale of wood and timber, (after deducting thereout two small annuities for life of £300 each,) to be laid out in new purchases of lands, of which she was to be again only tenant for life. A house which the had at Twickenham was directed to be sold, and the money arising by sale to be laid out in lands, to be settled in like manner. The whole residue Of the personal estate was to be also laid out in the purchase of lands, of which she was likewise to be only tenant for life. The sum of £2000 given in the form of a legacy to his daughter, and to be paid to her own proper hands, was directed, as to £1500 of it, to be laid out in finishing Wortley-Hall, and £500 the residue thereof, in furnishing that house; and the furniture to belong to, and to be used and enjoyed as heir-looms with the house, as far as the rules of law and equity would permit. And as to the collieries and the premises belonging, and the estates in Northumberland and Durham, the subject matter of the present suit, the testator had directed, that in default of the appointment in question, the profits thereof should be laid out in the purchase of lands, of which his daughter was to be only tenant for life; which was only giving her, in default of appointment, the profits of the collieries and premises, and of the coal trade. That the testator being apprehensive, that the management of the collieries and coal trade, might after his death be too difficult for the trustees, and that they might perhaps be unwilling to execute the trust without proper indemnity; and foreseeing that events might arise, which would make it more eligible and beneficial to his estate to have them sold and converted into money; and that the choice of continuing to carry on or sell them, could be no where so properly lodged as in his daughter, to whom and to her children (not then capable of judging tor themselves) the whole benefit [485] thereof was given by the will; he, therefore, for these reasons, gave his daughter such a power of disposal, as would sufficiently indemnify the trustees in acting under her direction, and yet not in terms that would compel her to make a sale; at the same time requesting her to direct the money arising from the some, (by which it appears he meant a disposition for money,) to be applied in the same manner as he had directed, in default of her appointment and execution of the power. Thus he left it at her either to carry on the works, or direct a sale Of them; a power which he did not lodge in his trustees. Not meaning however at all events to oblige her to a sale, which might have been attended with great inconvenience, as these were partnership works of a very extensive nature; and where if there was to be a sale at all events, advantages might be taken of that circumstance to the prejudice of the estate. But whether the works should be carried on, or the collieries sold, his intention was apparent, that the money and produce arising therefrom, should be applied to the uses expressed in his will. That this request of the testator to his daughter, was equal to a command. It was a sufficient declaration of his will. And whether a testator uses terms expressive of his desire, hope, etc. or words of command, direction, etc. it is the same thing: in each case the testator intimates or expresses what his will is, and that ought to be observed and to prevail. And in support of this doctrine and construction, there are many authorities and judicial determinations. But there was no ground to imagine or suppose, that the testator, by giving his daughter a power of directing the trustees to convey and dispose of the collieries and premises in question, intended to give her the absolute dominion and property of them. It would be repugnant to and inconsistent with the general plan and tenor of the will, and the express declaration of his reason and motive for intrusting her with such a power. There was no express declaration, or any intimation, that by having such discretionary power, she should have such dominion and property, as there naturally and most certainly would have been, if the testator had so meant and intended; and when he was so express and anxious in the disposition of the rest of his estate. On the contrary, she was not only required, in case Of disposal under the power, to direct the money, which the testator considered as in the hands of his general trustees, to the same purpose as he had directed the profits in case of no such disposal; but in default of, and therefore as it must be understood, until the exercise of such power, she was only to have the profits of the collieries and trade for her life: and it would be absurd and inconsistent with the idea or supposition of absolute dominion or property, to give only