Cowles v. Brown

4 Va. 477

• Court: Court of Appeals of Virginia
• Decided: October 15, 1803
• Status: Published

Opinion

*ROANE, Judge,

said that, upon a view of the whole case, he was for affirming the decree; but that he did not mean to decide any thing as to the right of persons having power to appoint, to give unequal portions, in general.

TEEMING, Judge,

said that, he thought a general power was given; especially as the testatrix did not use the words “equally to be divided;’’ and that upon the whole, he was of opinion, that the decree should be affirmed.

CARRINGTON, Judge,

said that, as Cooper had a general power • to give the slaves among the children, and had given some to each, the decree ought to be affirmed.

LYONS, Judge.

Power is given to the husband to distribute the slaves among the nephews and nieces of the testatrix “in such manner and proportion as he shall think proper;” and there is nothing in the will to shew that an equal division was' intended. Of course it was left to him to make the appointments according to his own discretion ; and- then, what right has the court to control the execution? The latitude which has been sometimes taken by 'chancellors in England, has been repro-bated, and a different course is beginning to manifest itself there, -2 Eonbl. Eq. 201; which meets with my own approbation. Consequently, as the power was general in the present case, and the husband has given part of the slaves to each of the legatees, without any proof of fraud, I concur, with the rest of the judges, that the decree ought to be affirmed.