atkins case Ross versus ewer July S c cite Ves by a settlement before marriage  pound S S stock belong to the wife be invest in trustee who be to transfer one  moiety to such person c for such use c as she shall by her last will in write  or other write under her hand and seal to be attest by two or more credible  witness appoint c and for want of such appointment c then in trust to transfer  all such stock to her executor or administrator after her death a paper be  find in her closet of her handwriting by which she give different sum to  different person but not sign or seal by her nor attest by witness Lord  Hardwicke of opinion that the word under her hand and seal to be attest by two  or more credible witness be referable to the will as well as to the other  write and for want of the ceremony of seal and attestation by witness this  paper be not a good execution of the power note in spring v Barnard bro  Charles Rep it be hold that a stamp be equivalent to a seal in the execution  of a power which require seal in there be a treaty of marriage between the  defendant and and Thompson widow and she be possess of Southsea stock and  annuity to the value of three thousand pound it be agree that the same shall  be vest in trustee and in pursuance of this agreement she do transfer her  stock to trustee accord and by and indenture of the first of June recite the  intend marriage it be declare the same be in trust for and till the marriage  and then to pay all the interest and dividend to the defendant during the  joint life of he and Ann and if she shall die in his lifetime and there shall  be any child of her body by he live at her death then to pay a moiety to he of  the say stock and the other moiety to such child or child and in case of no  child live at her death she die in his lifetime then the trustee be to  transfer the other moiety unto such person or person and to and for such use  intent and purpose and in such manner as the say and shall in and by her last  will andtestament in write or other write under hand and seal to be attest by  two or more credible witness notwithstanding her intend coverture limit direct  or declare and for want of such direction limitation or declaration then in  trust to assign and transfer all such stock to the executor or administrator  of the say and in which indenture be contain a proviso or power for the atkins  er p defendant and and with the consent of the trustee to revoke all or any of  the trust and declare any other use or trust as they shall think fit the  defendant and his wife have be marry some time and no probability of issue she  be prevail upon by he to join in revoke the trust as to one thousand pound and  the trustee by their direction do assign one thousand pound to the defendant  and die in April and on the day she die the defendant find a paper of her  handwriting in her closet in the presence of one of her sister and another  person but not sign by her nor seal nor attest by witness and the defendant  immediate take a copy of it and then seal the original under cover which  remain unopen in his custody till the day he put in his answer the defendant  produce this copy at doctor Commons when he take administration to his wife on  the saint of October be inform there that the paper be of no signification  atkins a Copy of the paper leave by mrs ewer December to declare this my will  to sister Elizabeth tailor to sister Sarah Ross to her son Alexander Ross to  pay his aunt tailor twenty pound a year during her natural life and then to  return to himself to Ann Ross fifty pound to Dorothy Ross fifty pound to  Thomas Bodenham to Edward Bodenham fifty to William Bodenham fifty to mary  branch fifty pound to Richard branch fifty to joy Kitford fifty Mr Hinchley  fifty pound to two trustee fifty pound to Mr e to Mr spring a ring to sister m  a ring to mrs Sarah Clampson twenty pound to her daughter Elizabeth twenty  pound the plaintiff have bring their bill against the trustee in who name the  stock are now stand that they may be compel to make sale of a moiety of all  such stock as remain indispose of at and S death and apply the money arise  thereby or so much as shall be necessary to and among the plaintiff towards  payment of the sum give they by the say paper write in proportion with several  other sum thereby give to other of and S relation Mr attorney general for the  plaintiff it may be say perhaps that though this paper write be a appointment  of money it be not a proper one of stock but if there be no other fund out of  which the sum give by this write can be pay yet I apprehend that this will be  sufficient to entitle the trustee to transfer the stock Lord chancellor you  need not labour this for the case will not turn upon it Mr attorney general  the first question be whether mrs ewer have make a sufficient appointment  within the meaning of the power atkins it may be say perhaps that this power  can be execute without a write in the presence of two witness and under hand  and seal but it must be admit to have be her own stock so that she have a  absolute dominion over it and what she have reserve be out of her own property  that the word or separate the clause and the attestation relate to the word  other write only and if so then this be a will within the meaning of the power  that a seal be not necessary to make a will good that the court will not  strain to set aside this execution of the power where the atkins er p  intention of mrs ewer be plain to dispose of part of her stock among the only  relation she have the plaintiff second where there be a trust for a wife  separate use this court look upon her as a feme sole if so then this be a  write which will have pass her personal estate if she have be a feme sole and  it will equal pass the separate property of a wife who this court consider as  a feme sole Mr Wilbraham of the same side it have be hold in many instance  that though a wife can make a will yet that she may appoint cro Elizabeth  Eston v wood cro car Merriot against Kingsman the present be a contract of the  same nature with these case at commonlaw whether this be so complete a  instrument as will be esteem a will in the spiritual court be the question  this be certain a testamentary schedule at least and will be regard as such by  that court nothing can be strong than the outset here I declare this my will  it be date beside and all write with her own hand Mr Tracy atkins of the same  side submit that it be a good execution of the power because the word or other  write separate the sentence as or be in its natural signification a  disjunctive atkins that there be no instance of court of law or equity  construe or a copulative except where the intention of the party require it  but be never so construe as to destroy a intention or to defeat the execution  of a power and therefore think himself justify from the word themselves to  insist that a will in write unattested by witness be a good appointment within  the meaning of this power as witness be not necessary to a will of personal  estate though they be to a deed to which the drawer of this settlement have  proper confine it vide   doctor Layflelds case and Inst b that suppose there  be any doubt in this clause yet in support of the execution of a power there  ought to be a favourable construction for though former take strict yet  latterly more liberal expound vide the marquis of Antrims case v the duke of  Buckingham Charles Cas Swinbourne dyer a d case the two last be in the case of  land and though not the same ceremony be require then in a will of land as  since under the statute of fraud and perjury yet land be always of high  estimation in the eye of the law than a personal chattle and notwithstanding  it be hold that the real estate pass by these will he also cite Loveday v  claridge in Limbrey v mason Lord chief baron comens and several other case in  the next page to show that if power be defective execute the court will supply  it vide smith v Ashton Cas in Chan vol to obviate the objection against these  cases that they have be where wife and child be concern and that this  circumstance weigh strong with the court in determine they he mention gold and  Rutland pasch t Eq Cas Abr where there be no execution in write pursuant to  the direction of a power but all dispose of by word of mouth and in favour too  of collateral relation three niece to the prejudice of the husband and yet  Lord Macclesfield on a bill bring by the husband to set this disposition aside  decree for the defendant to apply the last case to the present mrs ewer have  reserve the stock to herself have a absolute power to dispose of they as she  think fit and may have give they away absolute or upon term atkins that by  this power she be make in the nature of a feme sole and as such a disposition  in that case will have be good why not in this her administrator in that case  can not have impeach such a disposition no more can her husband in this who  have no other right but as a administrator and therefore the disposition which  she have make to the plaintiff be perfect and complete and hope that the  judgement of the court will be accord Mr solicitor general for the defendant  ewer that he give the plaintiff a exact copy of this paper and that they be so  well satisfy that they have no right to any part of mrs ewer stock that they  do not attempt to hinder the defendant to take out administration to his wife  atkins er p he argue that the plaintiff be not entitle on several ground first  that this court can consider it as a will for it have not yet be prove in the  spiritual court second that take it to be a write only and not a will yet if  it be accord to the power that write ought likewise to be prove first in the  spiritual court for though paper be admit to be establish there as a will yet  they will not admit every paper for their do or not do so depend upon  circumstance it be notorious in experience that the spiritual court do prove  the will where the feme covert have a separate power reserve over her estate  Lord chancellor I be of opinion that though in the notion of law a wife can  make a will yet where a feme covert have a separate power over her estate and  may dispose of it by will whatever sort of write she leaves it ought first to  be propound as a will in the spiritual court and in this case as there be no  executor appoint under this write by the wife that court will have grant  administration to the husband with this paper or testamentary schedule annex  it shall seem from some of the case that the execution of a power by a feme  covert be consider as a testamentary disposition and not proper as a will  Cotter v Layer p W henly v Philips atk Southby v Stonehouse Ves Jenkin v  Whitehouse burr however in Marlborough v Godolphin Ves Lord Hardwicke say that  a feme covert may not only make a write in the nature of a will but also a  proper will if such will be make with the consent of the husband see also  mariot v kinsman cro car henly v Philips atk oak v heath Ves stone v forsyth  dougl therefore if the defendant counsel do allow this to be a good execution  of the power I will direct the cause to stand over that the plaintiff may have  a opportunity of propound this paper to the spiritual court atkins but Mr  solicitor general insist it be not a good execution of the power go on as  follow that the will ought to have have the attestation by two witness and  under band and seal because the word of the power be not by will or deed in  the presence of two witness but by will or other write now the word other  write may be set in opposition to a will proper make and may refer to such a  paper as she have leave behind her and prove strong that she ought to have  execute even this paper under seal and in the presence of two witness he cite  for this purpose the case of dorm v thurland p wms Mr attorney general in  reply say if your lordship think this ought to be propound to the spiritual  court first we will not dispute it but be very Willing to try it there there  be two sort of instrument by which she may execute this power the one a will  the other a write the invest it in trustee hand before her marriage show her  intention of preserve a absolute power over her property and to prevent her  husband from ever intermeddle if this be will proper to be prove in the  spiritual court it be in effect admit it to be a will within the meaning of  the power because it be very well know that they have no authority to meddle  with a execution of a power by deed in the lifetime of the person which be to  be under hand and seal and where two witness be necessary he then endeavour to  distinguish this case from dorm v thurland Lord chancellor ask the attorney  general whether he think that case will have be hold good if there have be no  proof of a publication of the will he say he think it will the chancellor deny  it and mention the case of Mr Windham of Clearwell in the court of king bench  which be a trial at bar upon the will of his uncle and the only question be  whether the testator publish it for there be no doubt of his execute it in the  presence of three witness or their attest it in his presence which show that  publication be in the eye of the law a essential part of the execution of a  will and not a mere matter of form atkins Lord chancellor there be two  question in this case first whether this power be capable of be execute by any  paper purport to be a will second whether the plaintiff be proper to come into  this court before the will be propound to the spiritual court of which I have  already give my opinion but there be a question which be more material and go  to the merit that take it one way or other whether as a will or paper write  the solemnity of seal and attest be necessary to both I be of opinion the  latter word in the clause under her hand and seat to be attest by two or more  credible witness be referable as well to the will as to the other write first  upon the intention of the party themselves and from the reason of the thing  atkins er p then in trust to transfer the other moiety unto such person or  person and to and for such use intent and purpose and in such manner as the  say and shall in and by her last will and testament in write or other write  under her hand and seal to be attest by two or more credible witness  notwithstanding her intend coverture limit appoint or declare and for want of  such direction limitation or declaration then in trust to transfer all such  stock to the executor or administrator of the say and this be one entire  sentence and be so the word be natural referable to both therefore the  observation on the word or be a disjunctive be not material in this case the  meaning of frame it in this manner be to give mrs ewer a great latitude than  the word will in write only will have do these word to be attest be as proper  to a will as to any other write now if this clause have be stop there will  have be a comma after the word write and another comma after the word other  write and the next word by this mean will accord to grammatical construction  relate clear to they both atkins I do not deny the word may be construe in  another sense but will be much more strain than the other I take it that the  fetter and circumscribe power of this kind arise from jealousy on both side  first on the side of the next of kin that the husband may have such influence  over her as to prevail upon her to do some act to dispose of this money which  will prevent their have the benefit of it second the husband may apprehend  that there may be some undue method use by her near relation to surprise her  into a act which may deprive he of the advantage he expect from her fortune  now this intention be the most rational for in the execution of a power every  sensible person will choose to annex such circumstance to it the case of dorm  v thurland in p wms be a much strong case than the present though seal be not  necessary to a will yet be a circumstance require by the power in that case  Lord chancellor king hold that it can not be dispense with see macadam v Logan  bro Charles Rep there be nothing that require so little solemnity as the make  a will of personal estate accord to the ecclesiastical law of this realm for  there be scarce any paper write which they will not admit as such but in this  case to reject so material a part of the power provide as a necessary caution  in the deed in order to prevent a disposition by surprise or undue mean be  what this court can warrant therefore I ought not to dispense with these  circumstance in the execution of the power for if this shall be construe not  to refer to a will the husband may as well have allow her to dispose of it  without any restriction at all the case of dorm v thurland baron and feme  seize in fee in right 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 thelike sum husband by will under his hand attest by three  witness but not seal charge the premise with pound hold void be without a seat  dorm v thurland p wms be a authority in point if any thing the present be  strong in favour of the defendant atkins because it agree with the clear  intention of all the party that there shall be the ceremony of seal and attest  by witness for the reason I have before give and therefore I must dismiss the  bill but without cost atkins er p ex part bow Atkin er report date case ex  part bow July S c ante vol note I a infant trustee may levy a fine but  doubtful whether he can suffer a recovery without a privy seal the application  be for a infant trustee to join in suffer a common recovery to make a  conveyance effectual Lord chancellor it have be hold that a infant trustee may  levy a fine upon the act of parliament and c empower infant trustee to convey  estate and the judge may take it and it can be reverse but upon inspection and  during his nonage but I doubt whether judge will permit a infanttrustee to  suffer a recovery unless he procure a privy seal for that purpose say vide ex  part Johnson post ex part smith Amb but however I shall pen my order in this  general manner that all party be to concur in all necessary act for the infant  suffer a common recovery in order to make such conveyance effectual Reg lib a  fol