ambler oh Hungerford against Wintor and other cite ante p lib Reg a foe Thomas  knight before his intermarriage with whether Edward by article date that of  April covenant to lie out in land and settle pound of his wife portion and  pound of his own to the use of himself for life remainder to trustee to  preserve contingent remainder remainder to his wife for life for her jointure  remainder to the first and every other son of the marriage in tail remainder  to the daughter in tail remainder to the right heir of Thomas knight and it be  thereby agree that till the money shall be lie out in land the interest of it  shall be pay to the person who will be entitle to the estate the marriage take  effect and Thomas knight die leave whether his wife and one daughter of that  marriage the money be put to interest but never vest in land and whether the  daughter after she come of age make her will in the presence of three witness  whereby she declare as follow as to the money to be lie out in land in  pursuance of my father marriage article the same not be lie out in land I  dispose thereof as follow and then among other legacy she give to defendant  Catherine Wintor pound and devise to plaintiff and other trustee in her will  all her real and personal estate whatsoever in trust for whether the widow of  Thomas knight her ambler mother who be marry to John Wintor for her sole and  separate use without this or any other husband intermeddle therewith and to be  at her disposal who receipt alone shall be from time to time a sufficient  discharge to the trustee afterward whether the daughter die without issue and  after her death whether the mother and wife of John Wintor by deed poll date  direct that the plaintiff and the other trustee name in the will shall pay to  two person mention in the deed upon trust to place the same out at interest  and that the interest shall be receive by her husband for life and after his  decease pound thereof shall be pay to Catherine his daughter and pound to  whether another daughter of the say John Wintor and pound to be pay to her  husband for her funeral expense and then she direct that her trustee in case  there shall be any surplus remain after all the money direct to be pay to be  deduct shall pay it to her husband I Wintor he give a proper discharge thereof  and secure whether knight executor against all unforeseen demand which may  arise touch her estate on the that nour John Wintor die have make his will and  appoint defendant Catherine Wintor his executrix and residuary legatee after  whether the wife of John Wintor make her will octr execute in the presence of  two witness only ambler er p and thereby give to defendant Catherine pound  over and above what she have by the will of whether knight and the deed of  appointment and several legacy to other and the residue of her real and  personal estate to John Edward and appoint plaintiff executor in trust this  bill be file by plaintiff as trustee for the direction of the court and upon  the case above state several question be make be it between the heir at law of  Thomas knight and whether his daughter and the devisees of whether the  daughter whether the reversion in fee can pass by her will and Mr Biddulph  argue that the money contract to be lie out in land be actual esteem such in  equity and ought to go accord and then it will descend to the heir at law for  that whether the daughter have not power to devise the remainder in fee  dependent upon the estate tail but the Lord chancellor be clear of opinion  that the remainder in fee be well devise and that the case cite can not be law  ambler and if the will of whether the daughter be good then it be insist by  John Edward that whether the mother and wife of John Wintor have no power to  make such deed as above mention she be then under coverture and therefore it  be void but more especial as to the residuum appoint to her husband he die in  the life of whether his wife by which the residuum become in the nature of a  lapse legacy and so ought to go to he as the residuary legatee under the will  of whether Wintor for the heir at law of whether Wintor it be insist that if  the pound intend to be dispose of by the deed be void on the residuum then it  ought to be look upon as land and descend to the heir at law for that it can  not be devise by a will execute in the presence of two witness only Talbot  chancellor the principal question be on the deed of appointment how that shall  operate at law the matter dispose of be money but in equity esteem as land  whether the daughter seem to have consider it as money have give it in legacy  which be proper to be pay out of the money and with regard to her she have the  reversion in fee may consider it either as land or money though the mother may  have prevent it she have a interest in it for her life by a clause at the end  of the will whether the daughter give all her other real and personal estate  whatever in trust for her mother e and then the question will be as to the  consequence of such a disposition to the sole and separate use c and I think  as the legal estate be in the trustee and the equitable estate only in the  mother the word must give her power to dispose of the property for so far she  be to be consider as feme sole and she may dispose of such separate estate  without fine or the join of the husband in the same manner as if she be sole  but in the present case be further word to be at her disposal and therefore to  say this shall not be at her disposal without the concurrence of her husband  be contrary to the intent and meaning of the word which be to give her a  separate property and power of disposal as to there not be a power give to the  wife to dispose notwithstanding the coverture the power of appointment be a  right consequential to the property as a power of disposal be incident to a  feesimple as to the particular sum they be well appoint by the deed but ambler  it be contend that the surplus be not well dispose of but become I void by  John Wintors death in the lifetime of his wife and that it be a personal  provision for the husband with personal condition annex to it and so it be  leave by his death and ought to be esteem as a sort of donation death causan I  think in this case whether Wintor have consider the contract in the marriage  article rather as money than land since she have direct it to be pay as money  and the residue after particular payment be by the deed appoint to the husband  then it remain whether by his death the surplus be lose as to he if this  appointment shall be consider as a will it will be lose as a lapse legacy the  husband die in her lifetime it be say this instrument be not proper a deed  because a feme covert can make a deed and perhaps in strictness of law it be  not but yet it have all the effect and consequence of a deed for it be a  appointment not by will but a instrument in the form of a deed if a  appointment be make in the form of a will it be revocable in its own nature as  the will be but that be not the case of a deed without the power of revocation  therefore this must be consider as a deed of appointment by a person Himself  law and not sub potestate man and the right immediate pass after the execution  of the deed to take place at a future day and though there be no express word  to postpone the gift till after the death of the wife yet the nature of the  thing and the matter to be do show the disposition can not take place till  ambler er p after it as to the objection that this be a personal right this  may be say in every case where a sum of money or a term for year be limit by  deed to take place at a future time and yet though the person himself may be  primary in the view of the donor if he die his executor will take it as to  there be personal condition if they be such as can be perform only by he the  objection will be of weight but here they be to give discharge c which may be  do by the executor as well as by himself and there be nothing mere personal  this can be take as donation death causan for there must be a transfer of the  thing itself immediate which there be not in the present case this case be  from serjeant hill ms Vol and from the ms of the master Eden correct from lib  Reg the pound with the interest which have become due since the death of  whether Wintor ought to be apply accord to the will of say whether knight  ambler and the deed of appointment make by say Ann Wintor the debt legacy and  funeral expense of say Ann knight with interest from her death to be pay in  first place out of the pound the debt and funeral expense of whether Wintor to  be pay in the next place and then the sum of pound give by her will and after  the several other sum direct by the deedpoll be to be pay out of the surplus  of the pound acquire step and in case the residue of the pound be not  sufficient to pay those sum they be to abate proportional and in case there  shall be any surplus of the pound after payment of the sum before direct to be  pay such surplus be to be pay to the defendant Catherine Wintor