distributed something to all, and 290l. to Thomas. The word duly was in the agreement, as recited, but not in the covenant of the two sons. But it was not necessary to lay any great stress on that; because, supposing it was the case of the owner of an estate, reserving to himself a power by will, without adding duly or legally, his Honour admitted, that in such case his act must have been such, as would have answered the utmost idea of the word duly, though the word will had been only mentioned. But certainly there might be cases, where the words duly executed might not require the solemnity of the statute of frauds; for if no lands were given by the person making the will, that would be duly executed, though there were not those witnesses, which the statute required to pass real estate, because these words must refer to the nature of the act, and the nature of that which passed by it. Yet, if the word duly were to be construed otherwise, there have been cases where a court of equity, under such circumstances, would supply it. That in the case before him, two persons who had power to charge the estate, had done it by articles, but refer red to the act of a third, merely for the purpose of apportioning; and though that third happened to be a father, it would be the same as if he had been a mere stranger. If, therefore, one should charge his estate with a sum, to be divided as a mere stranger should think proper, by will, the necessity for its being a *will * [ 330 ] conformable to the statute, did not occur; and whether there were two or three witnesses, it was such a circumstance, as when the intent fully appeared as in the present case, a court of equity would supply.

His Honour added, that it was not necessary to criticise very nicely on the import of the word duly; but that, where a provision for younger children was thus attempted to be defeated by one who was a younger child, one would lay hold of any circumstance whatever on which any weight was to be laid; and supposing the father, having no land estate, executed a will, whereby his intent was sufficiently declared, in what manner this should be divided, it was good, though there were no such circumstances as required, whereby any interest was to pass from him. There was no occasion to consider, whether the whole must have fallen to the ground, if the father had made no will or appointment, or whether the court would, in such case, have interposed for the younger children. There have been cases, where a provision of

N N

Some essen

that sort has been referred to the account of a third person, which, if not executed, this court has thought proper to direct to be equally divided; but that that needed not thus to be determined, because, as his Honour was of opinion, that the will, though executed in the presence of two witnesses only, considering it as a will whereby the father passed nothing at all by way of interest from himself to them, but merely as a collateral person, there was sufficient within the authorities mentioned to warrant this opinion, that it was a proper execution of this power.

We should not read the above case, without remarking the tial distinc- judge's observation, that even if the force contended for were attended to given to the phrase duly executed, "there had been cases in

tions to be

in reading the above case.

which a court of equity, under such circumstances, would supply it." By which his Honour must not be understood to mean, that where a power is given to appoint real estate by a will, duly executed, or by will generally, such appointment will have the aid of *[331] equity, if it be not executed by a will according to the statute; When equi- but that, under such circumstances, *that is, where the subject of ty will help disposition is not such as does of itself call for the application of execution of the statute, being personal estate, if a power be to appoint the a will.

a defective

same by a will in the presence of three witnesses, or attested by three witnesses, or by any other form of celebration, these circumstances of accompaniment being stipulatory forms only annexed to the power, without which the will would be intrinsically good, according to law, courts of equity, in behalf of certain favoured objects and considerations, will supply such little formalities, for the sake of the substantial intention of the parties. But if a powerover real estate is to be exercised by will, inasmuch as there can be no will at all of such property, unless it be perfected in the manner prescribed by the statute of frauds, if a will be made without being so perfected, it is as if the power were attempted to be executed by a totally different instrument, from that to which it was expressly made subject.

The case of Sayle v. Freeland and others, infants, reported among the chancery cases in Ventris,(ƒ) referred to by Sir John Strange, in the case above produced, is not at variance with the principle of this distinction. There the bill was to redeem a mortgage made by the father of the defendant, or to be foreclosed. The defendants by guardian answered, stating that their grandfa

(ƒ) 2 Vent. 350.

ther was seised in fee, and made a settlement, whereby he entailed the estate, but with a power of revocation by any writing under his hand and seal, in the presence of three witnesses ; and the case was, that he made his will under his hand and seal, wherein he recited his power, and declared that he revoked the settlement; but the will had but two witnesses, who subscribed their names, though a third was actually present. The testator died, and the lands descended to the father, who made the mortgage; and the defendants claimed by virtue of the entail. But the Chancellor decreed, that the mortgage money should be paid; and first, he said, there was an execution of the power in strictness, for the third witness was present, though he did not subscribe. But secondly, if there had not been in strictness a good execution of the powers, equity would help it in such a little circumstance, where the owner of the estate had fully declared his intention; further adding, that there was a difference where a man had power to make leases, &c. which would charge and incumber a third person's estate, which sort of powers were to have a rigid construction; but where the power was to dispose of a man's own estate, it was to have all the favour imaginable. Here, we observe, that the power was to be exercised by a writing, and not necessarily by a will, executed in the presence of three witnesses; and although the party chose to execute the power by a writing, in the form of a will, and that will not such a one as would have a testamentary operation under the statute of frauds; yet it was not the less a writing† published under hand and seal in the presence of witnesses.

* [332]

Whether a power can be reserved or

given to appoint or

If, however, the power in the last mentioned case had been reserved to be exercised by will nominatim, with certain formalities not conformable to the statute, such as the attestation of two witnesses only, it may be doubted, whether the same judgment would have been pronounced ; but it is well established, that a disposition of lands may be made by a writing, purporting to be a will, though the same be not executed according to the statute of ed according

But as these instruments have no specific operation as wills, but work as appointments merely, should they not be stamped accordingly?

But if such a disposition be bad, it must be so on the ground of the power's being void in its creation, as contravening an act of par liament. I have met with no case full to this point.

make disposition of real estate by a

will unattest

to the statute?

A man can

reserve a

posing of real estate

by a future

unattested will or codicil

frauds, by virtue of a power of appointment, under the uses of a proper conveyance, in terms defining the particular mode of

execution.

But though a man by first passing the land by a sufficient connot by will veyance, may empower himself to make a future disposition power of dis- thereof by a writing, with one or two witnesses, and *under such a power, a will, or writing purporting to be a will, if attested according to the terms of the power, will be a good instrumentary execution of the power;(121) yet it has, upon very satisfactory reasons, been determined, that a person cannot by will enable him[333] self to make any future disposition of land by any instrument whatever, not executed and attested as the statute of frauds requires, in respect to wills of lands. If a will affects to reserve any power of disposition, such reservation is purely negative in its effect; it does nothing, unless, perhaps, it serves as a positive expression of its own non-effectiveness, as to certain subjects, or beyond certain limits. Such lands as a testator does not actually pass or dispose of by a present declaration of his mind, remain in him to be passed or disposed of by a future conveyance or will; but by such only as are respectively competent in law, by the perfection of their respective executions, to the gift or transfer of the property, according to its nature and requisites. And this rule obtains equally in respect to legal and trust estates; for trust estates are as much within the statute of frauds, with regard to the formalities requisite to the perfection of a will, as legal estates, since the same mischiefs would follow from the omission in the one case as the other.

Analytical view of the great case of

A full statement of the case of Habergham v. Vincent,(g) with a concise exposition of the reasonings on which the determination Habergham was founded, may help to guide the student in *his progress through this delicate and difficult learning. The case was thus :

.Vincent. *[334]

(g) 2 Vez. jun. 204.

(121) For in such a case the disposition is not testamentary in its origin, but is to be regarded as merely supplemental to, or directing the operation of the conveyance from which the power springs. But whenever the disposition is originally and substantially testamentary, it is within the statute, and every part of such disposition, whether primary, additional, or supplemental, requires to be executed as the statute directs. Fearne's Posth. 43.

"Samuel Hill, who was seised in fee simple of several freehold estates in Yorkshire, and also in fee, according to the custom of the manor of Wakefield, of copyhold estates in that manor, made his will on the 5th of October, 1759, and thereby devised all the copy hold estates, which he had surrendered to the use of his will, and also all his freehold estates, to five persons by name, and the survivors and survivor of them, and the heirs of the survivor, in trust, by sale or mortgage of certain parts specified, and by mortgage of the rest, to pay all his debts and legacies, and to complete an agreement he had entered into concerning the purchase of an estate, and to pay 50l. per annum, for the maintenance of his grand-daughter, and to his son Richard Hill, for life, a further sum, in the discretion of his executors and trustees, not exceed ing 1501. when the debts should be paid. Then upon farther trust, that upon the marriage of his grand-daughter, Betty Nuttall Hill, or upon her attaining her age of 21, the trustees should convey to her an estate for life, remainders to trustees to preserve contingent remainders, remainder to her first and other sons in tailmale, remainder to her daughters in tail-general, remainder to such person or persons, for such estate or estates, and subject and liable to such charges, provisoes, and conditions, as he should by any deed, or instrument in writing, to be executed by him, and to be attested by two or more credible witnesses, direct, limit, or appoint, and to no other purpose. The testator then provided what should be done with the surplus rents and profits, to arise before his grand-daughter should attain twenty-one, or marry. This will was duly executed and attested, according to the statute.

By an instrument dated the following day, under the hand and seal of the testator, attested by two witnesses, stamped, and concluding like a deed, the testator recited his will, and that he had reserved a power to himself of disposing of his estate farther, and went on thus: "Now, know ye, that by this my deed poll, I do direct and appoint, that my trustees, *(naming them) shall,”—and then he proceeded to direct, that his trustees should, immediately after the death of his grand-daughter, and failure of her issue, convey all the real estate to the first son of the said Richard Hill, and his heirs male; then to his second and other sons, in tailmale; then to his daughters in tail-general; with an exception of such children as he should have by a woman named Wild, and in default of such issue, to the right heirs of the survivor of his trustees, his heirs and assigns forever.

* [335]