When a will operating by

such circumstances would supply it. That in the way of appoint- case before him, two persons who had power to collateral to the charge the estate, had done it by articles, but reestate, and made ferred to the act of a third, merely for the purpose

ment is merely

to pass, may

no interest of apportioning; and though that third happened to be good, at least be a father, it would be the same as if he had been in equity, witha mere stranger. If, therefore, one should charge

out three subscribing wit

Resses.

his estate with a sum, to be divided as a mere stranger should think proper, by will, the necessity for its being a will 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 could 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 that sort has been referred to the direction of a third person, which, if not executed, this court has thought proper to direct to be equally divided; but that it was not necessary to determine that, because 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, was a sufficient execution of the power (1),

We should not read the above case, without re- Some essential

distinctions to

be attended to above case.

reading the

marking the judge's observation, that even if the force contended for were given to the phrase duly executed, "there had been cases in 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 equity, if it be not executed by a will according to the statute; but that under such circumstances, that is, where the subject of disposition is not such as does of itself call for the application of the statute, being personal tion of a will.

When equity

will help a de

fective execu

(1) When an act is done under a power, the act is deemed in law to be done by the grantor of the power. 2 Atk. 661. Middleton v. Crofts.

estate, or where the power is given to a stranger, then the mode of making the will being a stipulatory form 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 power over real estate is to be exercised by will, in as much 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 reported among the chancery cases in Ventris, 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 grandfather was seised in fee, and made a settlement, whereby he entailed the estate, but with a power of revocation by any writing published 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

2 Vent. 350.

he recited his power(2), 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

(2) That a power may be exercised without reciting it. See 1 Atk. 559. Molton v. Hutchinson, ib. 441, Robert v. Morgan. But see as to the question whether it will be executed by the general words of a will. 3 Vez. jun. 467, Langham v. Henny. 2 Bro. C. C. 297, Andrews v. Emmett. 4 Vez. jun. 60, Croft v. Slee,

A man cannot by will reserve posing of real

a power of dis

estate by a fu

ture unattested will or codicil

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.

But though a man by first passing the land by a sufficient conveyance, may empower himself to make a future disposition 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(3); yet it has, upon very satisfactory reasons, been determined, that a person cannot by will enable himself 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 may serve as a positive expression of its own non-effectiveness, as to certain subjects, or beyond certain limits. Such lands as a

(3) For in such a case the disposition is not testamentary in its origin, but is to be regarded as merely supplemental to, or as 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 exccuted as the statute directs, Fearne's Posth. 43. Habergham v. Vincent, 2 Vez. jun. 204. and see the case of Stansfield v. Habergham, 10, Vez, jun. 281,