case dorm all versus thurland all Lord chancellor king Eq can ab pl pl baron  and feme seize in fee in tie of the feme by deed and fine settle the premise  to the use of the baron and feme for their life remainder to the first c son  in tail remainder to the daughter in tail remainder to the husband and wife  and their heir with power to the baron during the joint life of he and his  wife by his last will or any write purport to be his last will under hand and  seal attest by three witness if baron die before his wife to charge the  premise with pound the like power different to move to the wife if she die  first to charge the premise with the like sum husband by will under his hand  attest by three witness but not seal charge the premise with pound hold void  be without a seal the bill be bring for raise pound out of a estate charge  therewith pursuant to a power the case be William Fenwick Esq marry Margaret  the only daughter and heir of sir Adam brown baronet who die seize in of a  considerable estate in Surrey and by indenture of the d of February and by a  fine levy pursuant to the covenant in that indenture William Fenwick and  Margaret his wife do settle and convey the castle and manor of Betchworth in  the county of Surrey to the use of William Fenwick and Margaret his wife for  their life without waste remainder to the use of trustee and their heir during  the life of he and his wife to preserve contingent remainder remainder to the  use of their first c son in tail male successive remainder to their daughter  in tail general remainder to the use of the say William Fenwick and Margaret  his wife and their heir peer William er p peer William with a power to the say  William Fenwick at any time during the joint life of he and Margaret his wife  by his last will or any write purport to be his last will under his hand and  seal attest by three or more credible witness if he shall die before his wife  without any issue between they then live to charge the premise with any sum or  sum not exceed pound to be pay to such person and in such proportion as he  shall appoint with the like power to Margaret if she shall die without issue  in the life of her husband Fenwick there be no issue of the marriage and  William Fenwick the husband by his last will in write under his hand attest by  three witness but not seal recite his power of charge the premise with this  pound dispose of the same to the plaintiff be his relation in the proportion  therein mention there be three witness to this will of Mr Fenwick two of which  swear that the will be sign by the testator in the presence of all the three  witness but the three swear that the testator Fenwick have write and sign the  will before call for the witness and declare that write to be his last will  and that all the three witness be then present and subscribe their name in his  presence the question be saint whether this will not be seal be a good  appointment of the pound within the power dly whether it be a good will to  charge the land one of the witness swear that the testator do not sign the  will in the presence of the witness but only acknowledge it peer William be  his hand and declare if to be his will and the three witness subscribe their  name in the testator presence Mr solicitor Talbot contend for the plaintiff  that this will of Mr Fenwick the husband be a will of land accord to the  statute be a good execution of the power and a effectual charge of the pound  upon the estate though not under seal that this power to charge be in the  disjunctive either by will or by write purport to be a will now as to the  power to charge the land b will there be no need to guard that the act of  parliament have do it by direct saint that it must be in write dly that it  must be sign by the party and dly that it must be subscribe by three witness  which circumstance have all be comply with and there be no need of a seal to a  will then as to the other part of the disjunctive any write purport to be will  it be plain he say there may be a write purport to be a will which yet may not  be a good will as to land as where there be three witness to a will but they  do not subscribe their name in the presence of the testator now this be a  write purport to be a will though it be not a will strict and accord to the  statute of fraud and yet will be good pursuant to the power because attest by  three witness though not subscribe by the testator in the presence of three  witness and if the power can bear this construction it will be reasonable to  understand it accord in a case where the testator must be admit to have have  this power and to have intend to execute it since he recite this very power in  his will and it be in case of a will which be the most favour of any  conveyance where if peer William counsel have be advice with they will have  direct the testator to put a seal to the will it will be very hard that the  plain intention of the party shall be overturn by the omission of so slight a  circumstance wherefore this power be capable of such construction the court  will understand it so as to make the charge effectual and there be no  necessity to apply to this court to help a omission the latter word which  require the seal not refer to the will but only to a write purport to be a  will on the other side it be say by Mr attorney that as this be a voluntary  charge not for any wife or child vide to lift v to lift ante but for legatee  if it have not pursue the circumstance which the party confine himself to and  prescribe as it will be void at law so there be no reason to aid it in equity  that the latter word require a seal refer as much to the will as to the write  purport to be a will and it be as necessary that this instrument by which the  pound be to be charge upon the estate shall have a seal as that it shall be  attest by three witness for the sentence be not complete until the end which  declare the circumstance require to execute the power also the principal case  can not be intend of a will or devise of land for that must be suppose where a  man have land devise they but here Mr Fenwick the testator be only tenant for  life and the will or write purport to be a will must single and alone operate  upon the power as to the second point it be argue by m solicitor general for  the plaintiff that peer William er p there be two witness prove the will to  have be sign by the testator Fenwick in the presence of the three witness this  be sufficient to establish the fact and make the will good and it have be  determine peer William upon debate late in this court in the can e of a will  of land that where the testator sign the will and afterward declare in the  presence of three witness that this be his hand and desire the three witness  to attest the same who subscribe their name in the presence of the testator  this be sufficient but the counsel on the other side insist on the case of lee  and Libb show Mod as report in Carthew where c I holt be of another opinion  Lord chancellor say that though hehimself incline to think the will of the  land good if the testator shall acknowledge the name to be his and the witness  shall subscribe in the presence of the testator yet that point shall be  reserve to the defendant Longford v Eyre ante vol Stonehouse v Evelyn post vol  Mr Lutwyche for the defendant what have be say concern the intention of the  testator be whole immaterial if a will of land be make and sign by the  testator and subscribe by two of the most credible witness in the world no  body can doubt but that it be the testator will and intention to pass his  estate but the word of the statute of fraud say this shall not be a good will  and as the statute say so in the one case so the law which the testator have  here prescribe to himself not to charge without a write under his seal be  equal express in the present case and this charge do not operate by virtue of  the will or other write but by virtue of the settlement and like the case  where a copyhold be surrender to the use of a will and the will be afterward  make of these copyhold land such a will be good though but with two witness  ante Wagstaff v Wagstaff or indeed without a witness at all because the  copyhold passes by the surrender and not by the will Lord chancellor I take  this will to be a good one and peer William be so to be a good charge the  power be in the disjunctive saint in respect of the husband who can make a  will and dly in respect of the wife who can not make a will but only a write  purport to be a will but for the satisfaction of both party as it be a matter  of law let it be refer to the judge of b b to be make a case on both the point  and as to the last point the testator not sign in the presence of the witness  the case to be make upon the deposition and refer to they and it be determine  by the judge of b r on argument that the will be void as a charge for want of  be seal in earl of Darlington v Pulteney Cowp Lord Mansfield say he be incline  to think with Lord king on the present case that the instrument be a good will  the power be thereby well execute but on the other point agree that where  there be no meritorious consideration for the execution of such a power the  form must be strict pursue so Ross v ewer atk see do v Morgan t r Sugden power  ed