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therein; and for that purpose he thereby authorised and impowered his said trustees, their heirs, executors, administrators, and assigns, to sell all or any of his lands, tenements, and hereditaments, in the said counties of Northumberland and Durham, when and as they in their discretion should think fit; and to apply the money arising thereby, and the rents and profits thereof, in the mean time, in and for renewing the leases of the present collieries or coal mines, and in taking to farm or purchasing any other collieries or coal mines, or any lands that lay convenient for ways or way-leaves, and for the doing all other acts requisite and proper for the carrying on and managing the said coal trade, in as full and ample manner as he the testator could do, and as they his trustees should think most for the benefit of his estate. And the testator thereby declared his will to be, that his said trustees, their heirs, executors, or administrators, should stand possessed of and interested in the clear money which should arise and be produced out of the said collieries or coal mines, and other his real and personal estates and effects in the said counties of Northumberland and Durham, thereby given and devised to them as aforesaid, in trust to apply and dispose of the same, in such manner and for such purposes as the residue and surplus of his personal estate was thereby directed to be applied as aforesaid: and he thereby also declared, that although his meaning was to give his said daughter the absolute disposal of the said collieries, and the premises relating to the same, and of his lands, tenements, and hereditaments, in the said counties of Northumberland and Durham, to prevent the expences and trouble that must attend the management of affairs of such a nature, under the direction of the Court of Chancery; he requested his said daughter to direct the money arising therefrom, to be applied in such manner as he had directed the same, in default of her direction and appointment. And the testator by his said will directed, that the several persons who for the time being should be entitled to his real estate, [479] should take the sirname of Wortley; and he gave to such of the daughters and younger sons of the said Countess of Bute, his daughter, except the respondent, or such other son who should after his death be entitled to his estate, under the limitations of his will, the sum of £2000 each, and gave the like sum of £2000 to his said daughter, the Countess of Bute; and directed that £1500 part thereof, should be applied towards finishing Wortley-Hall, in the county of York, and £500, the residue thereof, towards furnishing the said house; and that the furniture thereof should be enjoyed with the house, as heirlooms, as far as the rules of law or equity would permit; and he appointed the said Earl Gower, Godfrey Wentworth, and Sir Matthew Lamb, executors of his will.

In January 1761, the testator died, leaving Lady Mary Wortley his widow, and the respondent Edward Wortley his only son and heir, and the Countess of Bute his only daughter: and his personal estate, exclusive of what he was possessed of in the counties of Durham and Northumberland, was greatly more than sufficient to pay all his debts, legacies, and funeral charges, and the several annuities payable thereout.

Mr. Wentworth, one of the trustees and executors, declining to act, renounced the probate of the will; and released and assigned to the respondents Earl Gower and Sir Matthew Lamb, their heirs, executors, administrators, and assigns, all his estate and interest in the several freehold and leasehold premises devised to him and his said co-trustees, by the testator's will; by which means all the trusts of the will, relative to the testator's real and personal estates, became vested in the respondents Earl Gower and Sir Matthew Lamb, who proved the will, and took upon them the execution thereof.

The appellant and the Countess his wife had issue between them, the Right Honourable John Stuart, commonly called Lord Viscount Mount Stuart, their eldest son, and the respondent James Archibald Stuart, their second son, and several other younger children.

It was insisted by the appellant, that the Countess, under the power given to her by the testator's will, had an absolute power of disposing, either absolutely for her own benefit, or by way of voluntary gift or appointment, to or for the benefit of any other person, and without any consideration, of that very great branch of the testator's property, which consisted in his collieries and coal mines, and other his real and personal estate in the counties of Northumberland and Durham;