Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-01-12
OFFICIAL.

Opinions of the Supreme Court of Tennes-
see, delivered at Nashville, December
Tenn, 1858.
NJ. Cruise, admir-. vs.. A. Mckee and others
This bill is fled as administrator with the will
annexed of Rebecca Baggery, deceased, for the
construction of her will upon the interpeading Of
the parties whose interests conflict. The difficulty
arises upon the exercise of power by the widow,
given to her in relation the disposition of certain
slaves in the will of her husband.
David Baggerly, q citizen of North Carolina made
his will 10 1876 and the same admitted to pro-
bate by the County Court of Iredell in 1919. 1t
contains these two clauses, upon which the Official
ty arises.
"a To my beloved wife, Rebecca, legatee and be-
eueath all the lands owned by me, lying on the
south side of the Yadkin river, in Iredell county,
during her lifetime, and also sll my household
goods aud effects of every description, ard also my
negro WSmen, Fanny and Rena, and negro boy
named James," In subsequen. clause, he says ::
st is further my will and desire, that my ne
groes Fanny, Rena and ia nes be disposed of by my
wife, RebeCcs, with their increase, to the whole or
am one Of Hay children she may think proper
at her deeeaSe."
In March, 1856, she made her will and died in
Lincoln county, Tenn to which she had removed
many years ago. These slaves, or their increase
were disposed Of in her vii unequally among such
of her children were then living and to some of
the grand children. Some were to be sold, and the
proceeds to go partly to grand children.
She had power Of appointment under restric.
tons; it was to be to ''Gny one more of her
children" Her power was coupled with an interest
as well as trust.
power Of appointment to children does not en-
brace grand children and the exercise of il their
favor is without authority and void. Jarnsgin, Us
Conway, 2 Humph. 70, and authorities there cited.
This is not dsputable. But the difficult guess
ton here is, whether that avoids the appointments
bar IN oh IN loo boIs
erty undisposed of by her. is it good pro tdnto
and if so, how shall the balance go? This does not
fall under the head of aluSOry appointments. That
emily applies to q case where one invested with
power to appoint property amongst class, with full
discretion as TO the amount to be given to each,
gives to one q merely nominal share That will be
set aside as Hlusory, q fraud upon the donor of
the power he certainly intended by making all
the objects of his bounty, or Of the power, that
each should have q Su6StanhGlsshare. L. How and
Wallace, L. c. Eq., 332. But in this case she had
full and express power to give all to one two or
more, with an unrestricted discretion. 1t was not
to his children class, without distinction, but
she might exclude one, MORE if she chose entire
ly Not so in cases to which IiusOry appointment
applies, though in these determinations may
be made. Yet not to the entire exclusion of any
one or a nominal share to one.
In this case the widows estate is for lie only by
implication with power to controve the remainder to
a limited extent, and in a certain mode The lin>
itstion was to his children. They as class had
vested joint remainder under the will. But power
was given her to defeat the interest of any one
more, by the exercise Of the power given, but in
case she fails to appoint, or make an invalid ap-
pointmen then the property would 60 to all equally,
under his will at her death.
There is no doubt but that person having pow
er must execute it in good faith, for the end and
purposes designed, it will be void. In the leads
ing case of Alieyn Beechier White and Tu-
dor, 290 taken from l. Eden 1872, this principle is
illustrated, and in the notes the cases are collected
In that case the power of jcint-turing was given,
but it was exercised in fovor Of the wife, upon an
agreene1t on her part, that che should receive only
part as an annuity and that the residue should be
applied to the payment Of the husbands debts. This
was held to be a fraud upon the power, aud set
aside except far relates TO the annuity court
of equity will guard the exercise of these powers
and trusts, so as to prevent any fraud upon the
donor of the power In all cases where discretion
is given in the selection of the objects amongst a
class good faith must be observed, and if discrim>
inatiol are made to advantage to the trus-
tee himself or stranger, his act will be held vi
eous and corrupt. If there be aseeIet understand
ing that the appointee shall assign part of the
fund stranger, pay the debts the sppointor,
or to loan him the fund, the appointment would
thereby be vitiatsd and deelsrd void Notes to the
same case 295, citing s. Irsdele's Eq. R. $3.50 Z;
Sim 343, and other authorities, also Bostick, o.
WintOn, l. Sneed 58s. Any exercise of such aipOwer