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lordship, when a power is given to appoint the uses of land by deed or will, the will must be intended to be such a one as is proper for the disposition of land, and consequently, should be subscribed by three witnesses, in the presence of the testator. For this is within all the inconveniences which the statute of frauds was intended to prevent, and the words in the nature of a will, mean the same as a will, which must therefore be subscribed by witnesses in the presence of the testator. And according to the And the same
doctrine holds same Chancellor, in Wagstaff v. Wagstaff, if the in respect to
trust estates. trust of lands be limited to such persons as a man shall by will appoint, and the cestui-que-trust devises these lands by a will executed only by two witnesses, the will is void, and will not operate as an appointment. In confirmation of which, it was said by Sir John Strange, at the Rolls, in introducing his judgment in Jones v. Clough, that " where the owner of an estate in land, either in law or equity, réserves to himself a power of disposing of it to such uses as he by will shall appoint, that must be by such a will as within the statute of frauds would be
proper for a devise of land; otherwise the statute would be entirely evaded.”
But if the power extends over personal as well as But if such powreal property, though a will made in execution of the er extends to
personal as well whole power should fail as to the land for wantof a suf- as real estate; ficient attestation, it may nevertheless be a good ex- unexecuted to
pass real, it may
effectual to pass 12 P. Wms. 258. € 2 Vez, 366.
and the will be
ecution of the power with respect to the personalty. Thus where a man by his will had given several shares in the Sun-fire Office to his daughter, and after her decease to such persons as she should by her will direct; and had also devised real and personal estate in Jamaica, in moieties, the one moiety to Frances for life, and after her decease, to such person as she should by will direct; the other moiety to another person, in like manner; the daughter, by, her will reciting that of her father, disposed of the Sun-fire shares, and also by the same will devised the real estate, but the will was not duly executed to pass real estate, being attested by two witnesses only; and Lord Chancellor Thurlow held that the will being sufficient to pass the personal estate, was so far a good execution of the power".
If an agreement If an agreement be entered into, to charge cerbe entered into to charge lands tain lands with a sum of money for the benefit of with such sums as a stranger certain persons named, in such shares as a third shall by his last will direct, such person shall direct by his last will, such will need direction will be good if made by not be executed as the statute requires for passing an unattested will-but it real estate; but if one or more having the inheriseems othervise if such power be tance in them of certain lands, agree that one of given or reserved to the owner,
them shall have power to charge the same with any or to one of the
sum by his last will, this power can only be well inheritance,
executed, as it should seem, by a will with three
owners of the
• Duff v. Dalzell, 1 Bro. C. R. 147. et vide Powell v. Beres. ford, 2 Lord Raym. 1282.
witnesses. This doctrine is furnished by the case of Jones v. Clough, determined at the Rolls by Sir John Strange, which case was, in effect, as follows:
On the marriage of Thomas Clough, an estate was settled to the use of himself for life, remainders in the common manner in strict settlement, When John the eldest son of the marriage, and Thomas the younger, came of age, articles were entered into, reciting the settlement, and that
whereas there was thereby no provision or portion for maintenance of younger children, though several were then living, to the intent therefore that 3001. might be raised, Thomas the father, John the son and heir, and Thomas the younger, had taken it into consideration, and agreed, that 3001, should be raised in and upon all or part of the premises, from and immediately after the death of Thomas the elder, and to be paid to such you ger children in such manner and form as he should by his last will, duly executed, direct and appoint; and in order to have the same effectually done and assured, the two sons did covenant, grant, promise, and agree, jointly and severally, for themselves, their heirs, &c. that after their father's death, any part might be granted, mortgaged, or disposed of, for raising the 3001. to be paid as the last will and testament of Thomas the elder should direct and appoint, and to no other use. The father, by will, attested only by two witnesses, distributed this 3001.
i 2 Vez. 365.
John dying without issue, having suffered a recovery of part, Thomas became tenant in tail of the rest, and now insisted, that the provision, made for himself and the rest of the children, could not take effect, as not being a proper execution of the power, the will not being such as would pass lands, according to the statute of frauds, all the requisites of which were required by these articles, and the addition of duly was equal to legally.
But the Master of the Rolls adjudged otherwise, observing that it was to be considered, whether the father, by the articles or will, parted with any thing in his power to give. By the settlement, he was bare tenant for life; and by the articles had granted nothing, the charge being to take effect after his death. The agreement, indeed, was recited to be between the father and two sons, and referred to the act of the father by will duly executed; but in the next clause, which was to charge the estate, the two sons only covenanted and granted to the trustees, that this 3001. should be a charge; and it was upon their estate; and the intervention of the father was only to apportion the sums. It was not his will that actually made the charge; he was only referred to as a proper person for that
for that purpose.
This cause was attended with such circumstances, that the court was well warranted to go as far as they could to relieve the person standing in the place of the younger children, especially against him who was to have the benefit of the articles, but who hy the accident of his brother's dying, without issue, had turned the tables: it being more for his benefit to say, they should not be carried into execution.
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 were 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