In what Cases an Instrument operates as an Appoint ment. 6 Rep. 18 a. Cro. Eliz. 877. Cro. Ja. 31. not merely collateral, and the assignees might execute it. The Court also conceived that assignees included assignees in law, as well as in fact: but that the tenant in tail having devised the term, the devisee was an assignee, and the power in the greatest strictness of acceptation was in fieri, and consequently must go to his executors, and by the same reason to their assignees. 69. An instrument may in some cases take effect, either as an appointment of a use, or as a common law conveyance; where the person who conveys has a power of appointment, with an estate in fee in default of appointment. Thus in Sir Ed. Clere's case it was resolved, that where a feoffment was made to the use of such person and persons as the feoffor 1 Inst. 111 b. should appoint, and until appointment, to the use of himself and his heirs; if in such a case the feoffor devised the land by will (having a power to devise it) as owner, without any reference to his power, it would pass as a devise, by the will, and not as appointed under the power: for the testator had an estate devisable in him, and also a power to limit a use; and he had his election to pursue whichever of them he chose: so that when he devised the land itself, without any reference to his power, he shewed his intention to pass the estate by his will, as owner of the land; and not to limit a use under his Hob. 160. power. 70. In a subsequent case Lord Hobart said, that where an interest and an authority meet, if the party declare clearly his will to be, that this act shall take effect by his authority or power, there it shall prevail against the interest: for modus et conventio vincunt legem. And therefore in Sir E. Clere's case, it was agreed, that if the devisor had recited his power, and had relied upon that, all would have passed by ex press declaration of the party himself: nay more, though the party do not make an express declaration, yet if this act do import a necessity to work by his power, or else to be wholly void, the benignity of the law will give way, to effect the meaning of the party. 71. This last proposition is founded on the deter- 6 Rep. 17 b. mination in Sir E. Clere's case: in which it appeared, that C. H. being seised of three acres of land, held în capite, made a feoffment in fee of two of them, to the use of his wife for life; afterwards made a feoffment of the third acre, to the use of such person and persons, and for such estate and estates, as he should limit and appoint by his last will; afterwards by his will he devised the said acre to A. B. in fee. It was determined, that as C. H. could not, as owner of the land, devise any part of the residue by his will, therefore the will operated as an appointment under the Hudson, power; for otherwise it could have no effect. of re Cross v. infra, c. 18. Chamberlain, 4 Ves. Jun. 72. By the settlement made on the marriage of Cox v. Thomas and Elizabeth Cox in 1777, a power voking the uses of the settlement, with the consent 631. of the trustees, was given to Cox and his wife; so as before such revocation, they should convey and assure other lands of equal or better value, in lieu thereof, to the same uses. By indentures of lease and release, dated in 1784, a capital messuage and other premises were conveyed to a trustee and his heirs, to hold to him and his heirs, to the use of such person or persons, and for such estate or estates, interest or interests, and with, under, and subject to such powers, provisoes, and agreements, as Thomas Cox should by deed or writing under his hand and seal limit and appoint; and in default thereof, to the use of the said Thomas Cox, his heirs and assigns. In 1792, Tit. 12. c. 1. $9. infra, § 76. Thomas Cox entered into a contract to sell the estates comprised in the settlement of 1777; and by indentures of lease and release dated in 1792, Thomas Cox, in pursuance of all powers in him vested, did, with the consent of the surviving trustees in the marriage settlement, grant, bargain, sell, alien, release, and confirm, limit, declare, and appoint; and the said Thomas Cox and his wife did, with the like consent and approbation, convey and assure to the said surviving trustees, their heirs and assigns, the said capital messuage comprised in the indentures of 1784; to hold to them, their heirs and assigns, to and for the same uses, trusts, intents, and purposes, as were declared in the settlement of 1777. Thomas Cox and his wife revoked the settlement. Some doubts having arisen upon the title, with respect to the value of the substituted estates, and also upon the supposition that the indenture of August 1792 was intended to operate as an execution of the power, and therefore it was doubtful whether the legal estate did not vest in the trustees, in which case the uses declared thereon would be void at law, and good only as trusts in equity, the purchaser declined to complete his contract: upon which a bill was filed against him for a specific performance, and the usual order was obtained, referring it to the Master to inquire whether a good title could be made. The Master reported, that the substituted estates were of greater value than the estates comprised in the marriage settlement; and that the plaintiff could make a good title to the estates comprised in the agreement. Exceptions were taken to this report, and in support of them it was observed, that Thomas Cox, in the release of 1792, used words applying to the conveyance of an estate in fee simple, and also to the execution of a power of appointment: such a union was very unapt and improper; but the proper for the conveyance of an interest, than for the execution of a power. The words of appointment were thrown in generally by the conveyancer, and were quite superfluous: the party had no intention of executing the power. The Court always makes the deed operate according to the intention, if by law it may. The intention was declared to be, to vest the estate in trustees, to the uses of the marriage settlement: there was no room therefore for the presumption that the intention was merely to execute the power, not to convey an interest; that presumption was in oppo ante, $71. sition to the deed, which went to declare that the estate vested in them, and was to enure to the uses of the settlement: it did not begin with words of appointment, but with those importing conveyance. The order in which the words appeared, concurred with the form of the instrument, to show that the first words in order were intended to be the operative words: he threw in the words of appointment, if necessary, meaning to make use of all the powers that were in him. The deed did not recite the power particularly, but was in pursuance of all powers. But if the legal estate was vested in trustees, yet the proviso in the settlement was substantially complied with; for the estates were in equity in the persons entitled under the settlement, and they could come into Chancery for the legal estate whenever they thought fit. Sir R. P. Arden, M. R.-The plaintiff having entered into this contract, has conveyed the substituted estates by the deeds of 1792, in pursuance of all powers in him vested, and containing words both of conveyance and of appointment. This was preparatory to the revocation of the uses of the settlement, and to enable the plaintiff and his wife to revoke them under the power. The question is, whether, under this deed, there is a good execution of the condition in the proviso; or in other words, whether by the deeds the plaintiff had legally conveyed to the trustees in the settlement this other estate; exactly in the same manner, and to the same uses, as the estate comprised in the settlement. The objection is entirely technical, and certainly very nice, and I think a little too refined; though an objection of that sort certainly may be fairly made; and I will not find fault with a purchaser for taking the opinion of the |