vide Tit. 21. ch. 2. § 24. pears by a quotation from the Mirror, that by the old law they could not be attornies, nor (fo. 158 a.) even summoners. But powers like the present are of a very different nature, being introduced since the statute of uses, and coming in the place of conditions, before that statute. Hence it is that conditions and powers are often compared. Now conditions could be executed by infants; but. that was only where it was for their benefit. So an infant may present to a church; but that is very different from a power of this sort, for it may be done by a child of a month old, because he is under the inspection of his guardian, and the bishop is judge of the sufficiency of the person presented. But it cannot be pretended that such a power, as the present, could be executed by a child of one month old. An infant's declaration of the use of a fine is good also, while the fine stands unreversed for infancy, because both make but one conveyance, and the law gives credit to the judge who took the fine. The custom of gavelkind that an infant may make a feoffment at fifteen, is very different; and bears no resemblance to the present case. Particular customs being lex loci, and the same as if an act of parliament was made for that purpose. In Lord Buckhurst's case, Moor 512. it is said arguendo by him as counsel, that where an infant may by custom make a feoffment at 15, if he makes a feoffment to the use of his will, such will, though void as a will, on account of his infancy, is still a good declaration of uses. This looks as if an infant could execute such a power as that in question'; but he cites no authority for what he says, nor can I find any to that purpose, but rather the contrary. Bro. Custom, 50. said there, that though an infant may make a feoffment of gavelkind lands at 15, yet he cannot devise them, for the custom shall be taken strictly. And 2 Roll. Ab. 779. that if an infant make a feoffinent of gavelkind lands, warranted by the custom, to the use of himself, and afterwards devises the use, this is void, if not warranted by the custom; which last is almost a contradiction of what is said by Moor. In the case of feme coverts, executions of powers have been held good. So they were determined to be in Rich v. Beaumont infra, § 40. by Lord King, and afterwards by the House of Lords; and in Lady Travel's case also, by Lord King Thence it was inferred they should also be good in case of infants, the disability of feme coverts being, as was said, rather greater than that of infants. But I think this latter disability a greater one in the eye of the law; and so is Lord Hobart in Moore v. Hussey, in Hob. 95. marg. (which marginal notes are well known to be Lord Hobart's own), who says, that coverture was not at common law so far protected as was infancy, and some other disabilities. Upon the ground laid down there, is founded the separate examination of feme coverts upon fines, which is otherwise in case of infancy; for the feme covert has no less judgement, as Lord Hobart says, than if discovert. So in 1 Inst. 246. it was held, that a feme sole being disseised, and afterwards taking husband, and during the coverture a descent cast, her entry is thereby taken away, after her husband's death; but otherwise if she was within age at the time of her taking husband; for that no folly can be imputed to her, she being an infant at the time of her marriage. And in 10 Co. 43 a. it is held, that an infant is totally disabled from conveying during his minority; and there a difference is taken between recoveries suffered by husband and wife, and by infants; that in the first case, they are Hob. 225. good, but not in the other. It was said, that here the infant was of the age of 19, and the Court might judge of her discretion; but that rule lets in much too great a latitude, nothing being more vague and uncertain than the different abilities of people at the same age. Some certain age must be fixed by law for presuming discretion; and so it must be to make good a custom, enabling an infant to dispose; as is laid down in Needler v. Ep. Winchester. If infants could execute powers over their estates, there would be instances of leases or jointures made by them; whereas we daily see applications made for acts of parliament, enabling them thereto. I can find but one case of a power executed by an infant, that is Lord Kilmurry v. Gery, cited in Evelyn v. Evelyn, 2 P. Wms. 671. It was in 1712, as appears from the Register's book. Therewas a private act of parliament, 12 Will. III., making good all acts done by Lord Kilmurry, during his infancy; and is therefore by no means an authority, that infants may execute such a power as this. This is my opinion as to the general question; but there is something in this case that still strengthens it, from the words of the will, which go throughout to the disability of coverture, and none other, and imply therefore, that had he meant any other, he would have mentioned it. The testator's plain view was to secure his estate to the separate use of his daughter, who was then a strong young woman, not at all likely to die, and it cannot be presumed he had her death at all in view. This is a power coupled with an interest, and so, different from a naked authority. The daughter had an equit able interest in her for life, with a power of giving the inheritance to whom she pleased. The equitable reversion remained in her, and if not disposed of by her, would descend to her daughter; which shows it to be a power that was to be executed over her own inheritance. Women. 112 a. 33. A married woman may, without her husband, Married execute a naked authority; whether given before, or after her coverture; though no special words be used to dispense with the disability of coverture. Thus 1 Inst. 52 a. Lord Coke says, if cestui que use had devised that his wife should sell his land, and made her executrix, and died, and she took another husband; she might sell the land to her husband: for she did it in auter droit, and her husband should be in by the devisor. 34. The rule is the same where both an interest and an authority pass to the wife; if the authority be collateral to, and does not flow from the interest. Because there the two are as unconnected, as if they were vested in different persons. Moulton, Finch, 346. 35. A person devised an annuity to a feme sole Gibbons v. for life, with power to grant an annuity to any person she should name. The woman afterwards married. It was held that this power continued in her, and was not transferred to the husband. For by her nomination she did not anyways charge the lands by virtue of any interest arising from her; but under the power that was given to her for that purpose. 138. 36. Where lands are vested in a married woman, W. Jones, upon condition to convey them to others, she may convey them during the coverture, to save the condition. 37. If the legal estate in lands is vested in a married woman, in trust for another, some hold that she cannot pass it to the cestui que trust, unless her husband joins. This was the opinion of Judge Jones; Daniel v. Ubley, but Whitlocke and Doddridge dissented, and held that the husband's joining was not any more requisite, 137. W. Jones, 1 Inst. 112 a. than in the other cases. Mr. Hargrave has observed, n. 6. Bayley v. Rich v. Beaumont, 6 Bro. Parl. Ca. 152. that perhaps Jones's opinion may be most conformable to strictly legal doctrine; and his thus distinguishing a trust from a power, and a condition, may be accounted for. Trusts are properly the subjects of consideration for the courts of equity only; and though in them the legal estate is made subservient to the trust, yet the courts of law take notice of trusts for very few purposes, nor will it be easy to find an authority for departing from any rule about the effect of legal conveyances, merely in respect of their being a performance of trusts. 38. When powers of revocation and appointment were introduced into conveyances to uses, the judges reasoned by analogy from these principles, and held that coverture did not create an incapacity in a woman to execute a power. 39. A person settled lands on himself for life, remainder to his wife for life, remainder to the issue of the marriage; with a proviso that it should be lawful for his wife, during her life, to demise the premises, under certain conditions. After the husband's death, the wife married again, and she and her husband demised the lands pursuant to the power. It was held in the Exchequer, that this was a good execution of the power, notwithstanding the coverture: for the estate of the lessee was not derived from the estate of the lessor, but arose out of the estate of the feoffees or releasees, in the original settlement. 40. In a subsequent case Lord King held, that where a power was given to a woman to dispose of her estate by will, her marriage suspended the power. And on an appeal to the House of Lords, a case was directed to be made for the opinion of the Judges of the Court of King's Bench; but it does not appear |