case wright against sir henry Englefield and other and cross cause in chancery  that that that and that Nov a woman by marriage article reserve a power of  dispose of her present or any future estate real or personal by deed or will a  devise be a good execution of her power the legal estate be in trustee Rippon  v Dawding post Geo they Thornbury v Jew post devise to first and other son and  in default to daughter as tenant in common and in default of such issue over  raise cross remainder between the daughter l lib Reg b foe S c Eden nom wright  v Cadogan hill ms Francis Carrington upon his marriage with sir Henry  Englefields sister in settle his estate in Warwickshire Leicestershire and  Shropshire upon himself and the issue male of the marriage subject to a  rentcharge of pound ayear to his wife and a provision for young child and  daughter of the marriage with remainder to his uncle Charles smith and his  issue male in strict settlement with remainder to his uncle William smith in  like manner with remainder to his own right heir and in the settlement there  be two power of revocation the one enable he of own authority by any write  attest by two witness to revoke any of the use subsequent to the provision for  the issue of the marriage and to appoint new use the other enable he with  consent of his wife and certain trustee to revoke any of the use of the  settlement and to appoint new he afterward with consent of his wife and  trustee execute the last power with respect to the leasehold estate and limit  it to trustee to pay debt after that with the like consent he execute the last  power and revoke the use of the Warwick and Shropshire ambler estate and after  appoint pound ayear for the separate use of his wife during her coverture he  limit those estate to the old use he afterward make his will in and recite the  power reserve to himself he revoke the use of Warwick and Shropshire estate  subsequent to the provision for the issue of the marriage and limit the estate  in case of his death without issue male to Lord Cadogan sir Henry Englefield  and Mr Plowden in trust to pay his debt funeral expense and the legacy and  yearly rentcharge thereby give and inter alian give a legacy to sir Henry  Englefield in the word follow I give and bequeathe unto my brotherinlaw sir  Henry Englefield one yearly rentcharge of pound for his life clear of all tax  and deduction Payable by two equal halfyearly payment in the year at ladyday  and michaelmasday the first payment to begin and be make on such of the say  feast as shall next happen after my decease without issue male as aforesaid  with proper power for entry and distress for recovery thereof and after  payment thereof he devise the estate to his uncle and their issue in the same  manner as they be settle on they before on that may he make a codicil to his  will attest only by two witness ambler er p as follow whereas I have in my  will bequeathe only pound ayear to my dear brother sir Henry Englefleld by  this codicil bequeathe to he the say sir Henry Englefleld the additional sum  of pound ayear more Payable to he as mention in my will and he then give a  annuity and several specific and pecuniary legacy Carrington die in the year  may leave a daughter Teresa his only child in Charles smith die without issue  Teresa die in intestate and without issue and William smith die in without  issue have devise his estate to defendant Duane in trust for plaintiff ambler  upon the death of William smith the trust inheritance descend upon Constantia  the wife of Peter Holford and Catharine Carrington in moieties as sister and  heir at law of Francis Carrington on the marriage of Peter Holford with the  say Constantia who be then the widow of John wright and by who she have one  child the plaintiff wright article be enter into date that September between  Peter Holford of the one part Constantia of the second part sir Edward smith  and Thomas Branstone of the three part whereby after recite the intend  marriage and that she be seize of a copyhold estate of inheritance of pound  ayear and entitle to a rentcharge of pound ayear for her life as her jointure  make on her marriage with her former husband and have great expectation of a  considerable accession of fortune from several relation and that Peter Holford  not be in possession of any estate out of which any provision may be make for  her and that it be agree between they that the copyhold land and the  rentcharge shall be to the separate use of Constantia and that all such estate  either real or personal or of any kind whatsoever which shall or may descend  upon or come to her during her coverture or to her husband in her right by  descent or by virtue of a remainder or reversion or of any devise gift or  bequest or by virtue of the statute of distribution or by any mean whatsoever  shall likewise be to her separate use and to be apply and dispose of from time  to time as she shall by any deed or deed execute in her lifetime or by her  last will and testament duly make and publish in the presence of three or more  credible witness direct or appoint notwithstanding her coverture Peter Holford  covenant with smith and Branstone upon request to execute all such deed and  act as shall be advice by the counsel of the say Constantia for the better and  more effectual secure the say copyhold estate and rentcharge for the sole and  separate use of the say Constantia notwithstanding her coverture and will from  time to time and as any estate real or personal shall descend upon or come to  the say Constantia or to the say Peter Holford in her right by descent devise  bequest or gift or by virtue of any reversion or remainder limit or thereafter  to be limit or by virtue of the statute ambler of distribution or by any mean  whatsoever execute do and perfect all such deed act conveyance and assurance  for vest the same in such person or person as the say Constantia shall appoint  in trust for the sole and separate use of the say Constantia and to be subject  to such disposition as the say Constantia shall make thereof by any deed or  act or by her last will or testament attest by three witness Constantia make  her will on the that may after take notice of the say article and that she wag  entitle to one moiety of the undivided premise do by virtue of the power  reserve to her by the say article devise her say moiety of the undivided  premise to trustee to the use of her husband for life remainder to trustee for  year to raise portion for the young child by Holford remainder to her first  and other son by Holford in tail male remainder to all and every her daughter  by Holford in tail general as tenant in common and for default of such issue  to her own right heir she afterward die on the that July leave two daughter by  Holford Catharine maria and Constantia maria the latter of who die soon  afterward a infant and without issue Catharine Carrington the other sister oh  f Francis Carrington by lease and release of the saint and d of June for the  natural love and affection convey her undivided moiety of the premise to  Nathaniel Templeman his heir and assign to the use and upon the trust therein  mention videlicet to the use of trustee for year subject thereto to such use  as the plaintiff John wright shall after his attain his age of year by deed or  will appoint and in default thereof to he ambler er p in tail with remainder  to herself in fee and the say term of year be declare to be upon trust by  mortgage sale or other disposition to raise pound to pay the same to the say  Catharine Carrington to her own use or as she shall appoint and in default of  appointment to her executor and administrator and upon further trust in case  it shall be judicial determine that by virtue of the testamentary write of may  execute by Constantia as aforesaid the say Constantia maria Hol ambler ford  the survive daughter of the say Constantia shall not be entitle to her mother  moiety of the premise then the trustee be to raise the sum of pound for the  portion of the say Catharine maria Holford to be pay in manner therein mention  bill by plaintiff wright against Lord Cadogan and sir Henry Englefield for a  account of the personal estate of Charles and William smith three question be  make at the bar saint as between plaintiff wright and Catharine maria Holford  whether the appointment by mrs Holfords will be good d suppose it be whether  Catharine maria be entitle to the whole by way of cross remainder or whether  upon the death of Constantia maria her moiety do not go to the plaintiff as  heir as law to his mother vide cook v cook vern d whether sir Henry Englefield  be entitle to the additional annuity of the pound under the codicil Lord  chancellor upon the counsel for the plaintiff argue the second and three  question declare his opinion clear against they upon both note the counsel  argue the three question upon the word of reference in the codicil and contend  that the word Payable as in my will extend to the fund as well as to the mode  of payment and mean to charge the additional annuity on the real estate only  and that the codicil not be attest by three witness the annuity be void but  they do not consider the question which be intend to be insist on by sir Henry  Englefield counsel whether the codicil be not a execution of the power reserve  to he by the settlement of Lord Northington chancellor the second and three  question do not admit of my say more than that sir Henry England be entitle to  the annuity ambler out of the personal and miss Holford if entitle so to the  whole of her mother moiety as to the saint question I be of opinion that the  article be a good reservation of the estate and disposition of it and the will  be a good appointment and that the survive daughter be entitle to the whole of  the moiety it have be admit that if a woman before marriage retain a power  over a legal estate to be exercise by way of execution of a power she may do  it and though she have not do it with all the form yet the court will supply  they in favour of a person have a meritorious consideration Churchill v Devet  February cite Sug power d Edward note I from lib Reg it be say she can only do  it by new model her interest but she must have do it by way of grant for she  can not convey a trust the estate be in Lord Cadogan and sir Henry Englefield  and if she have attempt it by way of grant it can only have operate by way of  declaration of trust if so the law say thing need not be do per more which can  be do per pauciora by the article she declare that the trustee shall be seize  to her appointment the same thing as if her interest have be new model George  on demise of Thornbury v Jew Rippon v Dawding mich g in c b content d Nov ad  idem post it be say that trust and use must all spring out of the same  original deed though that in some sense be true yet it be not so in omnibus I  admit they must all come out of the original deed either by be insert in the  deed or by relation declaration of trust be the same as declaration of use  before the statute only they must be in write it be the intention govern in  both case vide wright v Pearson ante Lord Falkland v betty vern and see Mr  butler note to   Litt b xvi Philips v Philips p W Watts v bull ib bank v  Sutton p wms No rule be so strict adhere to in equity and so dangerous to  depart from as that the construction of trust must be the same as of legal  estate ambler er p ambler the liberality of the present time make judge regard  the substance and not the form and therefore where they discover the intention  of the instrument if they can take place in the common way of its operation  they will consider it good in some other way Osman v sheaf lev Coultman v  senhouse Jones Rep Tatlock v Harris t r see Tomlinson v Deighton p wms many  instance where instrument intend as a legal conveyance if defective the court  will not assist the defect against the heir unless there be a meritorious  consideration in Bramhall v hall I be of opinion there be no meritorious  consideration here the provision be for child and be meritorious case cite for  plaintiff wright peacock v monk that February Ves not determine on the  question but the dictum of Lord Hardwicke Bramhall v hall that June ante there  be a case afterward direct for the opinion of the court of king bench on this  point see wright v Holford Cowper that court certify that as nothing be give  to the heir at law while any of the daughter or their issue continue they must  among themselves take cross remainder see Phipard v Mansfield Cowp very v  white ib Watson v Foxon east Atherton v pie t r roe v Clayton east do v web  taunt Twisden v lock post the bill be file September by wright the son and  heir of mrs Holford by her former marriage to carry into effect the trust of  the will of Francis Carrington for a account c and that the trustee may convey  the premise as to one half to the plaintiff and his heir and as to the other  half to the use c limit by the indenture of saint and and June c and a cross  bill be file by the trustee for a general account and direction the Lord  chancellor say these gift be several and distinct the implication contend for  be groundless there be a wide distinction between expression which form part  of the substance and those which only affix a accidental circumstance to it  the word Payable as mention in my will mean no more than to describe the time  mode and place of payment c they can apply to the fund