Burnett v. 1 Ves. 157. But they perly executed. decree of the Court of Chancery of Ireland, in con, formity to the opinion of the Court of Common Pleas, was affirmed, with the concurrence of the Judges. 18. Where a power is given generally to revoke must be pro- uses, and appoint new ones; or where a power is given to be executed by deed or will without prescribing the manner in which they are to be executed; the instrument is intended, in law, to be such a one as is proper for the disposition of that which is the subject matter of the power. From which it follows that a deed, made in execution of a power, must be sealed; and a will executed according to the statute of frauds. 1 P. Wms. 741. Wagstaff v. Duff v. Dalzell, 1 Bro. R. 147. 19. Lands were conveyed to trustees and their heirs, to the use of them and their heirs, in trust, after raising a sum of money, to convey them to J. S. and his heirs, or to such person or persons as he or they should appoint. J. S., by a will attested by two witnesses only, devised the lands. It was contended that this will should operate as an appointment. But, Lord Macclesfield held, that it could not be deemed an appointment, because it was not executed according to the forms prescribed by the statute of frauds. 20. Where no interest passes from the person who Power is col- executes a power directed to be executed by will, and he is merely to apportion that which another person has given; in such a case, as he is not the person who makes the charge, or affects the estate, it has been held that it is not necessary such a will should be executed according to the statute of frauds. 21. Thomas Clough being tenant for life under a marriage settlement, with remainder to his first and other sons in tail, and having two sons, John and Thomas, who were of age, they entered into articles reciting the settlement, and that there was no pro Unless the lateral. Jones v. 2 Ves. 365. vision for younger children, and agreed that 300 7. should be raised for that purpose, immediately after the death of the father; and should be paid to the younger children in such manner and form as the father should by his last will, duly executed, direct and appoint. The father, by a will attested by two witnesses only, distributed this sum of 300 1. It was decreed by Sir John Strange, M. R., that this will, though not duly executed according to the statute of frauds, was still a good appointment; because it did not make the charge, but only distributed the money. 22. Where a power of appointment is given, to be Dey v. executed by a will or writing attested only by two 3 Cha. Ca. witnesses, in such a case a will attested by two wit- 69. nesses only, operates as a good appointment; be- 432, cause it does not derive its effect from the statute of Guy v. Dormer, wills, but from the deed by which the power is cre- infra. ated; and the disposition is not considered as testamentary in its origin. Thwaites, Fearne's Op. A Will exe- ties. 23. Although a will made in execution of a power does not derive its effect from the statute of wills, but from the deed of uses by which the power is created; and a will made under these circumstances is, in fact, an appointment of a use, not a devise; yet it retains all the essential properties of a will. It is construed in the same manner as if it was a proper will; for otherwise there would be a strange confu- 2 Ves. 212. sion in the interpretation of testamentary dispositions; if some were to be construed as proper wills, and others as appointments. , Wallis, 2 Bro. R. 24. Thus a will made in execution of a power is Lawrence v. revocable without the insertion of a power of revocation: whereas it has been stated, that if a person 319. executes a power by deed, he cannot after revoke such deed, unless he has reserved to himself a new $ 24. power of revocation. ante, c. 13. Tit. 38. c. 8. 1 Ves. 135. Tit. 38. c. 8. 2-612. The Power need not be recited. Hob. 160. Clere's Case, 6 Rep. 17. Cro. Eliz. 877. Cro. Ja, 31. 25. So the appointee under a will, made in execution of a power, must survive the appointor, otherwise the appointment will be void. And an appointment by will, under a power, operates as a common devise; for the appointee in fee simple, if heir at law, is in by descent, not by purchase. 26. An instrument may operate as a revocation and appointment, without any recital or mention of the power. For if the act done be of such a nature that it can have no operation, unless by virtue of the power, the law will resort to the power, and thereby give validity to the instrument, upon the principle that quando non valet quod ago, ut ago, valeat quan tum valere potest. 27. Clement Harewood being seised of three acres of land held in capite, made a feoffinent in fee of two of them, to the use of his wife for life; and afterwards made a feoffment of the third acre, to the use of such person or persons as he should by his last will in writing appoint. Clement Harewood afterwards devised the third acre, by his will in writing, to a stranger in fee. It was resolved, that as Clement Harewood had not a power of devising the third acre under the statute of wills, it being held in capite, his will should operate as an appointment under his power; for otherwise it would have no effect. 28. N. Scrope reserved to himself a power of revoCase, 10 Rep. cation by writing indented under his hand and seal, subscribed in the presence of three witnesses: afterwards, by indenture subscribed in the presence of three witnesses, he covenanted to stand seised of the same lands to other uses. It was resolved in the Court of Wards, by the two Chief Justices and the Chief Baron, that although there was no express declaration of any intention to revoke the former uses, yet that this: Scrope's 143. conveyance should enure, first, as a revocation of the former uses, and secondly, as a declaration of new uses; quia non refert an quis intentionem suam declaret verbis, an rebus ipsis et factis. And when Scrope limited new uses, he thereby signified his purpose to revoke the former ones. mer, 29. W. Dormer conveyed his estate to trustees to Guy v.Dorcertain uses, with a proviso, that if he should by any T. Raym. writing, executed in the presence of two or more 295. witnesses, in express words, signify and declare his intention to revoke or make void that deed, the uses should cease. W. Dormer afterwards made his will in writing, signed and sealed in the presence of two witnesses, by which he gave and devised the lands Gilmore v. to different persons, from those to whom they were Skin. 325. limited by the deed. It was contended, that the Deg v. Deg, phrase, by express words, excluded all implied revo- 414. cations; but it was determined that the will operated 2 Bro. R. as an execution of the power. Harris, 2 P. Wms. 303. strument must refer to 30. The instrument by which a power is executed, But the Inmust however mention, or have some reference to the estate on which it is intended to operate; other- the Estate. wise it will not be considered as a revocation or appointment. But it will be sufficient if the estate subjected to the power be referred to, in terms which include it with the other property of the appointor; although it be not particularized. 1 Atk. 441. 31. A person having a power to charge an estate Probert v. with 2,000 7. after the death of his wife, and a term Morgan, for years being created for that purpose, he made a will, beginning with these words, "I charge all my real estate." It was held by Lord Hardwicke, that if a man had power to charge an estate, it was not ne- Exparte cessary in the execution of it that he should refer to the deed out of which the power arose; for in a court. Caswall, Standen v. 589. of equity it was enough that his intent appeared: and if in the execution he sufficiently described the estate which he had power to charge, it would be bound; especially where the person charging was a purchaser of the power: and he held the power to be well executed. 32. A person devised his real estate to be sold, and gave gave the money arising from the sale, and the residue of his personal estate, in trust for his wife for life, and after her decease, as to one moiety, for such person or persons as she should by any deed or writing, or by will, with two or more witnesses, appoint. The real estate was not sold. The testator's widow received the rents and profits, and the produce of the personal estate for her life; and by her will, after disposing of some specific articles, which she described to have been her husband's, she gave the residue thus :-" All the rest, residue, and remainder of my estate and effects, of whatever nature or kind soever, and whether real or personal, and all my plate, china, linen, and other utensils which I shall be possessed of, interested in, or entitled to, at the time of my decease, subject to and after payment of all my just debts, funeral expences, and charges of proving my will, and specific legacies, I give to A. B. &c." This will was attested by three witnesses. The testatrix had no other real estate than that directed by her husband's will to be sold. One of the questions was, whether the residuary clause in this will was a good execution of the power of appointment. Lord Loughborough.-It is material to consider what the interest was that she took under her husband's will, and what she has done. She was entitled for life to the income of all the residue of his real and personal estate, and a moiety was given to her absolute |