Page:The English Reports v1 1900.pdf/735

said undivided moiety, she as soon as conveniently could be afterwards, by her will or deed of appointment, dated the 13th of May following, made in pursance of and according to her marriage articles, and the power thereby reserved to her, appointed and devised the same for the benefit of the respondent Peter Hofford, and his issue by her: which devise and appointment being so made according to the form prescribed by the articles, did therefore, together with the articles, absolutely and effectually, according to the established rules of equity, bind and affect the trust of the said reversion; and carry the undivided moiety to such persons, and for such estates, and upon and subject to such uses and purposes, as were expressed in her said will or deed of appointment. That Mrs. Holford seemed to have made this disposition with great prudence and judgment; she knew that the appellant her son by her first husband, was, or would soon be in possession of Lis father's estate, which was a very considerable one; that it would be increased upon her death, by the falling in of her jointure, and by the descent of her copyhold estate, which she was entitled to in her own right; and she well knew the inten-[504]-tions and bounty of her sister in favour of the appellant, and which were soon afterwards carried into execution, by her said sister's settling her moiety of the Carrington estate upon him and the heirs of his body; she knew that Mr. Holford her then husband had but a very small estate greatly incumbered, and that her children by him would be totally unprovided for, unless, by executing the power reserved to her by her marriage articles, she should dispose of her said undivided moiety for their benefit. And considering all these circumstances, it was natural and reasonable that she should so dispose thereof; and especially as it came to her in her own right from her own brother, and not from the appellant's family, who never had any interest therein, or title thereto. From hence, and from the words of her will, it was evident, that with respect to the said moiety, Mrs. Holford's intention was to dispose of it wholly and entirely for the benefit of her said husband, and her children by him; and that no part thereof should revert to her right heirs, till after her husband's death, and a total failure of issue of that marriage. And this conclusion was further supported, by that part of her will which made a provision for younger children; whereby after directing that £3000 should be raised and paid to each of such younger children, she expressly directed, that in case any of them should die before age or marriage, the portion of such child should survive to the others; and also by the devise of her said moiety, in case of no issue male, to her daughter or daughters; whereby it was clear, that if there should be only one daughter, she was to have the whole moiety.

It was nevertheless objected, that Mrs. Holford had not, by virtue of the articles, any power to affect or charge her said moiety, because it was not, previous to her marriage, conveyed by her and actually vested in trustees, to such uses as she should by deed or will appoint; and because she did not, by the articles, enter into any covenant whatever, nor, after her marriage with Mr. Holford, levy any fine.

But to this it was answered, that the legal estate of this moiety was then outstanding in Lord Cadogan and Sir Henry Englefield, and therefore no formal conveyance of it was by any means necessary, as such conveyance could not affect the legal estate, or have any legal operation; it could amount only to a direction to Lord Cadogan and Sir Henry Englefield, to become trustees of the moiety, for such persons, intents, and purposes, as she should by deed or will appoint; and as Mrs. Holford's interest was only equitable, the general agreement and intention of the parties, clearly and indubitably expressed in the articles, were equally as strong and binding as an equitable conveyance; and did in effect amount to a direction to Lord Cadogan and Sir Henry Englefield and their heirs, to stand seised of the reversion, in trust and for the benefit of such person and persons as she should appoint; and in the mean time for her separate use, exclusive of her intended husband and especially, as he by the articles ac-[505]-tually covenanted to do all necessary acts, to enable his wife to make any such disposition or appointment of her reversion as she should think fit, either by deed or will; by which covenant he was bound in equity, to do all necessary acts for authenticating and establishing of any deed or will which she should make concerning the same.

But it was further objected, that though the appointment should be considered as valid and effectual, yet as no cross remainders were thereby expressly limited of the premises between Mrs. Holford's two daughters; and as one of them died under