Definition
A phrase appearing in testamentary instruments — chiefly wills and devises — granting a devisee, executor, or trustee discretionary authority to distribute, manage, or allocate property according to their own judgment. The full phrase typically reads in context as a grant of power to act "in such manner and proportion as he shall think proper" or a variant thereof, vesting broad discretionary control without specifying fixed shares or fixed methods. The phrase functions as a flexibility clause: rather than prescribing a rigid formula, the testator delegates the manner of execution to the named party's reasonable judgment.
The phrase is not a term of art with a single fixed definition. Its legal significance depends entirely on context — who holds the discretion, over what property or action, and what constraints (if any) the surrounding instrument imposes. Courts have generally read the phrase as conferring genuine discretion rather than merely procedural direction, meaning the holder of that authority cannot be compelled to act in a particular way so long as they act within good faith and the instrument's evident intent.
Common Confusion
Researchers encountering this phrase in historical instruments may conflate it with purely directional language — phrases like "in the manner following" or "in like manner" — which do not grant discretion at all but instead point forward or backward to a specific procedure or formula already stated in the instrument. The distinction is critical: "in the manner following" (appearing in deeds, as in 5 T.R. 522) is a cross-reference to an enumerated method; "in such manner as he shall think proper" (as in the Virginia devises reflected in 4 Call (Va.) 477) is a substantive grant of discretion. Conflating the two in research can lead to misreading whether a fiduciary had latitude to act or was constrained to a fixed procedure.
Why It Matters in Research
This phrase belongs to a family of discretionary-grant constructions common in 18th and 19th century American and English wills, trusts, and deeds. Researchers will encounter it most frequently in:
— Testamentary litigation over whether an executor or trustee exceeded or abused the granted discretion.
— Equity proceedings asking whether discretionary language created a trust power or a bare power.
— Construction cases asking whether proportional allocation language required equal shares or merely good-faith apportionment.
The Rapalje & Lawrence entry clusters this phrase with related contextual variants — "in like manner," "in such manner," "in the manner," "think proper" — all of which appear in different instrument types (statutes, agreements, deeds, devises) and carry different operative weight. Researchers should resist treating these variants as interchangeable. The Virginia case context (4 Call (Va.) 477) reflects early American equity practice in which devises with "think proper" language were construed to create precatory or advisory trusts rather than mandatory ones, a distinction that drove significant litigation in 19th century American probate courts.
Jurisdictional variation in how courts treated discretionary devises was substantial. Virginia and Pennsylvania courts — both represented in the Rapalje & Lawrence source citations — differed in their willingness to imply conditions or limits on broadly discretionary grants. Researchers working in historical equity records should not assume that a construction ruling from one state's courts governs the meaning of the same phrase in another's.
The phrase has largely fallen out of modern drafting practice. Contemporary wills and trusts accomplish the same goal with specific discretionary distribution standards (e.g., "health, education, maintenance, and support" standards under the Internal Revenue Code) or with express trustee discretion clauses governed by the Uniform Trust Code. Researchers encountering the phrase in modern instruments are likely reading historical documents or antique-style drafting, and should apply period-appropriate construction rules rather than modern trust law defaults.
Historical Dictionary Support
Rapalje & Lawrence treat this phrase not as a standalone entry but as part of a cluster of "manner" locutions, reflecting 19th century legal lexicography's approach of grouping contextual variants together. The entry under "Think Proper, In Such" is the most directly relevant and points to Virginia testamentary practice. The broader cluster — "manner following," "in like manner," "in such manner," "in the manner" — covers deed, statute, and agreement contexts respectively, suggesting that by 1883 these variants had each generated enough interpretive litigation to warrant independent citation.
What the historical dictionary does not address is the substantive legal test courts applied once they identified discretionary language: whether the discretion was subject to equitable control, what standard of review applied, and whether bad faith or fraud could void an exercise of the power. Researchers will need to move beyond the dictionary to treatises on powers and trusts — Story's Equity Jurisprudence and Hill on Trustees are the relevant period sources — to answer those questions.
Jurisdictional Note
Virginia and Pennsylvania courts are the primary source jurisdictions in the Rapalje & Lawrence cluster, reflecting the phrase's frequency in those states' reported testamentary and equity decisions. Construction norms varied: Virginia equity courts were generally more willing to treat broad discretionary language as creating unreviewable powers; Pennsylvania courts more frequently implied conditions of reasonableness. Researchers working in other jurisdictions should locate local precedent rather than transplanting the Virginia or Pennsylvania construction rules.