coke b sir edward clear case mich Elizabeth feoff to such use as the feoff  shall appoint by will the use vest in the feoff till declaration make accord  to the power after declaration the estate limit shall take effect by force of  the feoff the will be but declaratory if in such case the feoff by his will  devise the land itself as owner of it without any reference to his authority  the land shall pass by the will a feoff to the use of a man will and to the  use of he and his heir be all one if the will as such will be inoperative to  pass the land the devise shall operate as a limitation of the use by virtue of  the power SC Moore affirm on error cro Elizabeth cro James in a assize by  Parker against sir Edward clear knight of land in the county of Norfolk the  case in effect be such clement Harwood seize of three acre of land each of  equal value hold in capite make a feoff in fee of two of they to the use of  his wife for her life for her jointure and afterward make a feoff by deed of  the three acre to the use of such person and person and of such estate and  estate as he shall limit and appoint by his last will in write and afterward  by his last will in write coke a he devise the say three acre to one in fee  under who the pl claim and whether this devise be good for all the say three  acre or not or for two part of it or void foe the whole be the coke report b  er p question and in those case four point be resolve by Popham chief justice  and baron clark justice of assize of the say county upon conference have with  the other justice if a man seize of land in fee make a feoff to the use of  such person and person and of such estate and estate as he shall appoint by  his will that by operation of law the use do vest in the a and more hob    light b b   b light Rep cro car a feoff and he be seize of a qualify fee that  be to say till declaration and limitation be make accord to his power vide  light fol a when a man make a feoff to the use of his last will he have the  use in the mean time if in such case the feoff by his will limit estate accord  to his power reserve to he on the feoff there the estate shall take effect by  force of the b brown Bulstr Cr car   a   light b Cr Elizabeth Cr James jenk  cent hob more b feoff and the use be direct by the will so that in such case  the will be but declaratory but if in such case the feoff by his c more    light b b Cr car hob c will in write devise the land itself as owner of the  land without any reference to his authority there it shall pass by the will  for the testator have a estate devisable in he and power also to limit a use  and he have election to pursue which of they he will and when he devise the  land itself without any reference to his authority or power he declare his  intent to devise a estate as owner of the land by his will and not to limit a  use accord to his authority and in such case the land be hold in capite the  devise be good for two part and void for the three part for as the owner of  the land he can dispose of more and in such case the devise can take effect by  the will for two part and by the feoff for the three part for he make his  devise as owner and not accord to his authority and his devise shall be of as  much validity as the will of every other owner have any land hold in capite if  a man a Cr Elizabeth   light a hob more a make a feoff in fee of land hold in  capite to the use of his last will although he devise the land with reference  to the feoff yet the will be void for a three part for a feoff to the use of  his will and to the use of he and his heir be all one a Mr Hargrave observe  note   Litt a the distinction between a feoff to the use of a last will and  one to such use as the feoff shall appoint by last will seem extreme subtle  however Lord coke report it as adopt by the judge in sir Edward clear case and  accord to more the same point be adjudge in Battey and Trevilian more but then  as to the former of these case the opinion on this point must have be  extrajudicial the feoff have be to such use as shall be appoint by will and  not to the use of the will itself and as to the latter case it go off final on  another point the reason in support of the distinction will be find   Litt b  and more at large more a in the case at bar when clement Harwood have b Cr  Elizabeth   light b b convey two part to the use of his wife by Act execute he  can not as owner of the land devise any part of the residue by his will so  that he have no power to devise any part thereof as owner of the land and  because he have not c more c elect as in the case put before either to limit  it accord to his power or to devise it as owner of the land for in the case at  bar have as owner of the land convey two part to the use of his wife ut above  he can not make any coke b devise thereof therefore the devise ought of  necessity to enure as a limitation of a use or otherwise the devise shall be d  Acc bing Cr James Cr Elizabeth hob d utter void and judgement be give accord  for the pl for the whole land so devise and afterward on the say judgement sir  Edward clear bring a e Cr James cro Elizabeth e writ of error in the king  bench send non provahbit but the judgement be affirm b it have be doubt  whether a power and a fee may subsist distinct in the same person without the  power merge in the fee sir Edward clear case have always be cite as a  authority to show that they may Vid Sugden on power d edition it be now settle  accord that the fee vest until the execution of the power and when the power  be execute it be a limitation of the use under and by effect of the instrument  by which the power be reserve and the wife of the person execute the power be  bar of her dower by a appointment in fee maundrell v maundrell Ves ray v pung  barn Ald SC mad Vid for what amount to a execution of a power Sugden on power  d edition Langley v Sneyd Brod bing S C b more black v Marnell ball and Beatty  do v roake bing b coke report b er p