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

IN fraud Of the original intention with which the
power was created, would render the appointment
vcid in equity. Lee Us. Ferril Beav. 463, ques-
ton sometimes arises as TO the extent che Courts
will 60 in setting aside fraudulent appointments,
whether to the extent Of the fraud or entirely
But that question does not come up in this case
there no pretance thas any advantage was secured
in this case BY the appointor, to herself, or any
one else, to induce the appointment The objection
is, that she undertook by mistake, OK miseons rne>
ton Of her authority to give part OF the property
to grand children. There was fraud contems
plated By her, nor can it be considered The
rules in relation to fraudulent appointments do net
then apply to the case, but it is simply question
Of the validity Of its exercise, far rs it is iE
favor Of grand children.
The result is that her appointment far as it is
exercised in favor Of her children is Valid and the
appointment to her grandchildren Is void
The slave Tillman given at valuation in the Sd
clause to her daughter, Mrs McKee, is not properly
disposed Of the amount Of the value is distribnL
ed in manner not authorized by her power. The
dispositions in clauses 4, 5 aud z being to child
rem Of the donor, are good So are the requests OF
the 9th clause, as that relates to property not en-
braced in the trust that being limited TO the slaves
A valid appointment, though in the came deed or
will with others not valid, win be maintained 2
Eng. On Pro 81. The other slaves not disposed Of
by the widow under the trust must be distributed
equally among all the objects of the power under
tho will VI Ddt4u iSESfty. lOlt oHVn6AJ
inclined to produce equality by compelling those
who have received slaves by the valid exercise Of
the discretionary power confded to the widow, but
have been unable to find any principle to author
Use it. She had the express power to give the whole
to ''any enc more " and exclude the others She
could have given all to one All would have betn
| equal on iailure to exert the power, or in case
of an invalid void exercise Of it. The unrestric-
ed power of selection and Discrimination entrusted
to her. enables her legally to produce any Unequal
| ity she desired So far then as she has appointed
that must stand with its advantages to the objects
| selected As to that portion of the property she
has left untouched by her power it must pass under
the will of the testator a vested remainder, ex-
empt from the contingent power Of appointment
given her it, to all his children and their
representatives where any dead. Il is not a
for collection of advsneements, in cases OF
intestacy but be right is derived from the will All
| the children then are embraced, without regard to
what any may have received under the exercise Of
the power, that is from different source. Eng. on
| Pom sos
Where Discretionary power is not exercised the
| whole of the objects who within it will take in
equal shares Hill on Trustees 20. 492 Msrg. So
it mus be where it is not exercised part in the
dispositions of that
The decree of the Chancellor will be reversed
and decree here in accordance with this opinion.
A correct copy. CARUTHERs.
! J. P. Clark, Clerk.