case Wilkes and other against holms in chancery easter term Geo refer to in re  Kirwans trust Ch d power the definitive execution of one in a  marriagesettlement after a limitation to the issue of the marriage and of a  jointure to the wife a power be give to the husband and wife to raise two  thousand pound out of certain land therein mention and if no part or only part  of that sum shall be raise in the lifetime of the husband and wife then that  it shall be lawful for the survivor of they by his or her last will or  testament in write duly execute to raise two thousand pound only for the  purpose of pay the debt of the husband and wife or either of they or make a  provision for the child of the marriage except a old son the husband die  without execute the power the wife execute it by a will sign in the presence  of only two witness Hardwicke Lord chancellor make two point first whether  this be a due execution of the power second whether if it be not the defect  may be supply by a court of equity as to the first his lordship observe that  since the statute of fraud no will relate to land can proper be say to be duly  execute unless it be in presence of three witness and that to determine  otherwise in this court will be a dangerous innovation that though the will  prescribe by the author of the power be a creature of his own and the  execution of it in the presence of two witness may have be good if he have  think fit to have order it so yet as he have express direct that it shall be  execute duly he must be understand to have refer to some know rule which as be  himself have mention none can be construe to be no other than the rule of law  and that the statute of fraud have furnish we with as to the second point his  lordship have great doubt and say there be much difference betwixt defective  deed and instrument inter live and defective will that the former may in many  instance be aid where the latter can not but afterward he be of opinion that  the defect in this case may be supply he say where a will be to operate by way  of appointment it take no effect from the statute though modern report the  rule prescribe by the statute may as in this case be arbitrary insert by the  party and that the appointee can claim under the will but by the deed of  settlement direct the execution of the power which deed together with the  instrument execute the power make in effect but one in raise the charge upon  the land but that in point of law the charge be create by the deed direct the  execution of the power to which purpose be the argument of Mr justice Powell  in Scatterwood v edge but to bring the matter still near this case if instead  of the power to charge the land with this sum of money it have be to create a  term for this purpose the party claim the benefit of the term if his right  have be dispute must have plead the deed create the power so that the whole of  this case must be take on the deed and the power together and the statute of  fraud be entire out of the question except so far as it be the rule which the  appointee be direct to follow in the execution of the power it be object that  at law as well as in equity a power relate to land to be execute by will must  be execute by a will pursuant to the statute this be true so if a power be to  be execute by deed and there be any defect in this deed it must fall to the  around but this be to be understand only where the power be execute voluntary  for if there be any meritorious consideration as the payment of debt or a  provision for young child this court will interpose and aid the defect in the  case of smith v Asheton Chan can where there be a defective execution of the  power in point of circumstance yet the substance be perform the court hold  they may modern report er p relieve so in the principal case the neglect be  only in form and circumstance in the case of Follett v Follett wms the husband  have a power to make a jointure to his wife by deed be make it by will this  defect be set right in equity which determination go a great way to decide the  present question for why may not this defect be supply as in that case a deed  be change into a will in the case of the duke of Marlborough v the earl of  Carlisle Michaelmas term there be no consideration of merit to make the court  supply the defect it have likewise be object that the debt which be to be pay  by mean of this power be the debt of the husband whereas the estate be  original the wife but those debt be express provide for by the deed of  settlement ex relation BEATRUFFE