whether any farther proceedings took place. It is however observable, that in the case of Hearle ante, § 32. v. Greenbank, Lord Hardwicke says, it was held in this case that a married woman may execute a power. 41. If however a power be expressly reserved to a woman, to be executed by her, being sole; a subsequent marriage will in that case suspend the execution of the power. 1Ab. Eq.343. 42. An unmarried woman settled her estate on Antrim v. Bueks, herself for life, remainder over, reserving to herself a power, being sole, to make leases for three lives. She afterwards married, and executed the power jointly with her husband. This execution was held not to be pursuant to her power: for by the marriage she became subject to her husband. And the Lord Keeper took a diversity between a naked power, and a power that flows from an interest: for where a bare power is given to a feme by will, to sell lands, although she afterwards marries, she may sell the lands, even to ante, § 33. her husband. But where a woman, upon a settlement of her own estate, reserves a power, which flows from an interest, that power ought to be executed by the woman whilst sole: and yet he said such powers ought to be taken liberally, though formerly they were taken strictly. 43. It is now usually inserted in the deed by which the power is created, that a woman shall be enabled to execute it, whether she be sole or married; in which case a subsequent marriage will not disable her from executing it. 44. The proper mode of creating a power of this kind, is to convey the lands to trustees in trust for the separate use of the woman, remainder to the use of such persons as she shall by deed or will, whether she be sole or covert, appoint. But though no such Wright v. conveyance be made, and articles only are entered into, previous to a marriage, by which it is agreed that the wife shall have a power to dispose of any estate which may descend to her, it will be sufficient; and a court of equity will support the execution of a power so given. 45. By articles before marriage, the intended husband covenanted that he would execute all such acts and conveyances as should be necessary for vesting any estate which might descend to his wife, in such persons as his wife should name, in trust for her sole and separate use; and to be subject to such disposition as she should make thereof, by any deed or writing under her hand and seal, or by her last will and testament. The wife became entitled to a trust estate in some lands, which she devised by her will. It was decreed by Lord Northington that the power was well created, and that the will of the wife was a good execution of it. On an appeal to the House of Lords, it was con tended on the part of the appellant, that the proper and only methods of enabling a feme covert to dispose of her inheritance by deed or will, operating as an appointment, were, either by a conveyance to uses or trusts before marriage, reserving such a power; or else by fine levied by the husband and wife after the marriage, with a deed to lead the uses of it, reserving such a power to her, over the inheritance vested in the cognizees: but unless one of these methods was taken, her will of real estates would be void, as an instrument of conveyance, and could not bind her heirs. Marriage articles being entered into for a valuable consideration, would bind the husband to do all proper acts for enabling his wife to make an effectual disposition of her real estate, notwithstanding her coverture; but when those acts had not been done, the heirs of the wife would be entitled to take advantage of all defects in the will, or in the capacity of the testatrix; just as they would have been entitled to claim by descent, in case, after a power duly reserved to her over a use, or a trust, she had not thought fit to make any appointment in execution of the power. On the other side it was argued, in support of the power, that the legal estate was outstanding in trustees, and therefore no formal conveyance of it was by any means necessary, as such conveyance could not affect the legal estate, or have any legal operation. It could amount only to a direction to the trustees to become trustees for such persons, intents, and purposes, as the wife should by deed or will appoint; and as the interest of the wife was only equitable, the general agreement and intention of the parties, clearly and indubitably expressed in the articles, were as strong and binding as an equitable conveyance, and did in effect amount to a direction to the trustees and their heirs, to stand seised of the premises, in trust for such person and persons as she should appoint, and, in the mean time for her separate use, exclusive of her intended husband; and especially as the husband, by the articles, actually covenanted to do all necessary acts to enable his wife to make any such disposition or appointment of her estate as she should think fit, either by deed or will; by which covenant he was bound in equity to do all necessary acts for authenticating or establishing any deed or Doe v. Staple, will, which she should make, The decree was af- 2 Term R. firmed. 684. 46. With respect to the persons to whom appoint. Who may be ments may be made, all those who are capable of Appointees. 1 Inst. 3 a. n. 1. A Power does taking lands by any common law conveyance, may be appointees. A woman may also take by an appointment from her husband; because she does not take immediately from him, but from the trustees. 48. It frequently happens that estates are subject not suspend to a power of appointment, in the first taker, with the vesting of Remainders. remainders over, in default of such appointment; Tit. 16. c. 1. upon which an opinion has obtained, in some in Fearne's Rem. 343. Cunningham v. Moody, 1 Ves. 174. stances, that such a power suspended the effect of the subsequent limitations, and kept them in contingency, instead of their being immediately vested, subject to be divested by a subsequent exécution of the power. But this doctrine has been altered. 49. By marriage articles, money was agreed to be laid out in the purchase of lands, to be settled to the use of the husband for life, remainder to trustees during his life, to preserve contingent remainders; remainder to the wife for life, remainder to all and every the children of the marriage, for such estates, and in such proportions as the husband and wife, or the survivor, should appoint; and in default of appointment, to be equally divided among the children; if more than one, as tenants in common, with cross remainders; if but one child, then to such one in tail; and in default of issue, to the husband, his heirs and assigns for ever. Upon a question, whether the inheritance in the lands to be purchased would have vested in the father, it was contended it would not, because during his whole life the inheritance, supposing a purchase made, would have been in abeyance; for as he might have limited it to any child, in fee, and the limitation over in default of appointment would then have been out of the question, it was a springing use, resting in suspence during his life. But Lord Hardwicke held, that the father с taking an estate for life, by the same settlement, the inheritance would have vested in him. He said, that where no person was seen or known in whom the inheritance could vest, it might be in abeyance. That the fee's being in abeyance, had in some cases occasioned sn act of parliament to remedy it, but there it was not so; nor did the power of appointment make any alteration therein; for the whole effect thereof was, that the fee, which was vested, was thereby subject to be divested, if the whole was appointed; or if part, so much as was not drawn out of the inheritance, still remained in the father, as part of the old fee: and there was no occasion to put the inheritance in abeyance, which the Court never did but from necessity; and would so mould it, by opening the estate, as in Lewis Bowles's case, and Tit. 16. c. 1. in several others, as best to answer the purposes of the limitations; but if the appointment was not made, it remained undisturbed. $51. 50. Mr Fearne has observed, that this was not a Cont. Rem. case in which the estate was originally the father's, 346. or vested in him at all, before the settlement: where the limitation of the fee to him, being the reversion, and part of his old estate, would have remained vested in him, till divested by the vesting of a contingent remainder. But it was the case of money to be laid out in lands, where the father's title to the inheritance was to originate in the same settlement as the limitations to the children; and by which, as Lord Hardwicke observed, as the father took also an estate for life, the inheritance, according to the ordinary rules, vested in him. But the general doctrine has been confirmed in the following case. |