Churchill agt DIBBEN a feme covert in pursuance of a power reserve to her in  the marriage settlement devise different part of the settle estate and also  land after purchase by her with the produce of it to several person and give  all the rest of her property to her residuary legatee and executor hold saint  that by the residuary clause both real and personal estate pass as by  appointment dly that a bequest of a moiety of m farm follow by one of other  land c to the same person his executor c for ever carry a fee dly that  freeholdlands contract for or purchase by a feme covert can be dispose of by  her will but that leaseholdestates may pass thly that a sum Kenyon er p to  which she may have appoint fall to her executor and not to her survive husband  SC cite Eden sim n see Harvey v Stracey draw follow Shelford v 4cland Beav by  a settlement in on the marriage of Thomas Dibben Esq and Elizabeth his wife  the say Elizabeth convey several land and tenement to the use of herself for  life and so on in strict settlement to the issue of the marriage and in  default of such issue as to part to the use of the husband as to other part  include a moiety of Mappercombe farm and likewise a tenement call Buccombe  farm and several other land to the trustee and their heir who be to stand  seize thereof in trust for and Kenyon to and for the benefit and behoof of  such person or person and for such estate as she shall notwithstanding her  coverture by deed or will or any write purport to be so sign and seal by her  in the presence of two witness appoint in this power likewise be include a  leasehold tenement call porten and some other leasehold premise and by the  same settlement she have a charge upon another estate in case there be no  issue of the marriage of pound to be dispose of as she shall appoint and for  want of appointment to her executor or administrator c during the coverture  mrs Dibben with the produce of her separate estate purchase several farms /and  land c some freehold other leasehold among the former be a farm in Nettlecombe  which she buy of one wm sander but this though contract for be not convey to  her at the time of her death about the year mrs Dibben die without issue live  her husband but before her death duly execute her will in the follow word the  last will and testament of I Elizabeth the wife of Thomas dibbed Esq make may  imprimis I give and bequeathe unto my sister mary the wife of Richard  Churchill Esq all my estate in porten item I give unto my kinswoman miss Ann  Churchill pound to be pay immediate after my decease item I give and bequeathe  unto my kinsman Thomas Churchill all the moiety of Mappercombe farm now in my  possession and I likewise give unto my aforesaid kinsman those Churchill all  the land which I have purchase except that which I buy of wm sander in the  parish of Nettlecombe to he his Kenyon executor administrator and assign for  ever item I give to my husband Thomas Dibben Esq Buccombe farm and the estate  I purchase of wm sander at Nettlecombe during his natural life and after his  decease I do give and bequeathe those my land at Buccombe and that which I  purchase of wm sander unto my kinsman Thomas Churchill to he his heir and  assign for ever item I give and bequeathe unto Thomas Regler my coachman pound  and all the rest of my good chattel estate and estate whatsoever undisposed of  I do give and bequeathe unto my kinsman Richard Churchill the young to he his  heir executor and assign for ever also I do nominate and appoint he my  executor to this my last will whereunto I have set my band and seal Elizabeth  DIBBEN sign seal and deliver in the presence of we and at the request of the  testatrix James burt wm buckler e c to ascertain the right of the several  party this bill be file by Richard Churchill and mary his wife the heir at law  of the testatrix against Thomas Dibben the husband Thomas Churchill and  Richard Churchill junr be devisees c and now at the hear the several question  follow arise videlicet whether the testatrix under the power before state have  a authority to dispose of the afterpurchased land either freehold or leasehold  and whether her purchase from sander not be complete but rest in contract vary  the case material d whether this will be good as a execution of the power  Kenyon d if it be whether the residuary devise to Richard Churchill Jun  include the residuum both of the real and personal estate which the testatrix  have a right to dispose of or the latter only that what interest Thomas  Churchill take under this will in the moiety of Mappercombe Farmwhether a  absolute fee or a estate for life only Kenyon er p that whether suppose the  afterpurchased leaseholdestates may be devise they be in fact devise by this  will to Thomas or will fall into the residuum that whether the pound of which  the testatrix have make no particular appointment shall go with the residuum  to the executor name in the will or to the husband as her general  representative the counsel be Mr Noel for the plaintiff Mr attorneygeneral  rider and Mr Wilbraham for the defendant the husband Mr solicitor general  Murray for Thomas Churchill Mr Henley for Richard Churchill Jun whether the  testatrix have any right under the power by will to dispose of the of  terpurchased estate be the produce of her separate estate upon this it be urge  and the chancellor agree that a agreement between husband and wife that the  sKenyon wife shall be at liberty to dispose of her personal estate will enable  her so to do and the solicitor general say where a woman have a separate  estate the spiritual court will grantprobate to b r will though there be no  such agreement but no agreement between husband and wife give her leave to  dispose by will c of a real estate will be of any effect because it be a three  person in this case the heir at law of the woman that will be defeat by it  which he can be by such a will unless the land be convey to trustee reserve to  the feme covert a power of appointinguses in which case it will be good for  the appointment take its force from the conveyance separate personal estate of  the wife therefore though by agreement she have power to dispose of it if she  lie it out in land and those land be accord convey to her use those land can  be dispose of by a will during her coverture so the question come to be on  this part of the case bow far 4f after a contract for a purchase the wife die  before it be carry into execution that will make a difference and upon this  question it be contend by Mr attorneygeneral and Mr Wilbraham that this  purchase rest in contract the vendor be to be consider as owner in point of  law and then the interest of the testatrix be only equitable be subject to her  disposition by a equitable appointment that such trust estate ought to be  subject to her appointment as muib as the money will have be wherewith they be  purchase for have she only take a mortgage she will clear have have a right to  dispose of that by appointment and it will be very hard to prevent her mere  because she have foreclose the equity of redemption sKenyon e content it be  insist by Mr Noel that as it be admit a estate purchase by a wife from the  save of her own personal estate provide it be legal convey to her can be  dispose of by her against her heir at law though the money purebasing it may  have be the contract in this case not be carry into execution can not vary the  case for that accord to the rule of this court a feme covert seize of land in  equity the legal estate in which be vest in trustee for her use can no more  dispose of those land by will during her coverture than if the legal estate be  in her dly whether this will be good as a execution of the power and here it  be admit that in respect of Mappercombe c part of the land include in the  power and specifical devise by this will it be so far a good execution of the  power for that in case of a specific devise of particular land if it can  operate as by will but may as by appointment it shall operate as it may then  as to the rest of the land include in the power the question come to be  whether such a sweep clause of a devise in general word as the residuary one  here of all her estate and estate whatsoever suppose those word include land  at all can be support as it do not refer at all either to any particular land  or to the power so as to pass particular land by way appointment and in argue  this point the next question videlicet dly whether the residuary devise  include the residuum of any real estate whatsoever be take up with it and upon  these question together Mr Henley argue they have this be the will of a  unmarried woman seize in Kenyon fee of these land there will have be no doubt  but that all of they together with the whole interest therein not before  dispose of will have pass by the residuary devise of all her good chattel  Kenyon er p estate and estate whatsoever indispose of unto r c his heir  executor and assign for ever for that the word estate be as Lord holt call it  in the case of the countess of Bridgewater and the duke of Bolton salk genus  generalissinium include all thing real and personal and passes all the  interest of the devisor that though this word may be so couple with personal  thing as to be confine in sense to personal estate accord to the case of  Wilkinson v Merryland Eq can ab cro car Ro Abr Jones where a testator devise  all the residue of his good lease mortgage estate debt ready money and other  good whereof he be possess to his wife the word estate there be couple with so  many species of personal estate be hold to be confine to the same sort of  property and the rather as the sense of it be further restrain by the word  possess in the present case it will admit of no such construction the word of  this clause be proper adapt part to the residue of her personal estate and the  other to the residue of her real estate and the respective limitation annex to  the devise show that she mean to include both for as the word whereof he be  possess in the above case follow the word estate c and make part of the  description of the thing intend to be devise be hold to restrain its sense by  parity of reason the word heir in the case now before the court enlarge the  limitation tailor v lVebbe style that as a devise of all the rest and residue  of my estate chattel real and personal in a will wherein pecuniary legacy be  before give have be hold not to pass land for that the word rest and residue  of his estate be relative and must be intend Kenyon estate of the same nature  with that he have before devise and have before give no real estate there can  be no rest and residue of that out of which he have give nothing Markant v  Twisden Eq can ab so for the same reason in the present case several part of  the testatrixs real estate as well as of her personal estate be bef over give  the relative word rest of her good chattel estate and estate must refer to  those precedent disposition and include what remain of both and the word  estate couple with the very word which it accompany here good and chattel have  have the construction now contend for in the case of Tirrel v page I Chan can  which be a devise of diverse legacy in money and then follow a devise of land  all the rest and residue of his money good and chattel and other estate  whatsoever he give to I S have other land it be decree by Lord Nottingham that  those other land pass that upon the whole therefore if this have be the will  of a unmarried woman it will have carry every sort of property of which she be  seize or possess but as this be a devise which she have no right to make but  under a particular power that there seem at first some force in that  distinction that this however be not the case of a person have a power to make  a appointment in the land of another the land here be absolute she and her  only incapacity of dispose of they in the ordinary way be her coverture that  as a feme covert to be sure she can dispose of nothing but under this power  the consequence of which be that in the act of make this will she can have  nothing in view but the execution of the power that make the case very  different from what it will have be can the devise have be mean of any other  estate than Kenyon those include in this power it certain be not mean to give  he the after purchase land not because she have no power to give they butj it  be plain she have no intention of do so because she have before give they to  Thomas Churchill and therefore the disposal of these land be all she can have  in view if a man have land of his own private property as well as a pqwer of  appoint in other land make such a devise the private property will satisfy it  and there will be great colour of reason in say that that be all that be mean  but in the present case unless these land be mean to pass the whole devise be  nugatory for she have no other that this will consider as a execution of the  power have follow it pretty accurate for as in the settlement when she have  dispose of part of her estate she add a sweep clause which include in this  power all the estate of which no use be before limit so in the will after give  a particular estate to g c the give to richd Churchill all the rest of her  estate and estate whatsoever indispose of suppose she have in her lifetime  convey these estate by deed one to Thomas Churchill and other her estate and e  tate whatsoever Vo Richard in fee will Kenyon er p not that as she be a feme  covert and have no other estate to dispose of be a good execution of the power  the court will allow a great latitude of construction in support of a  instrument affect a man own estate than of a instrument purport the execution  of a power in the estate of a three person as in Orby and lady haun vern where  a man have power to make lease reserve the ancient rend c without specify what  those rend be Lord Cowper and Kenyon Trevor contra holt hold it void for  uncertainty and the inconvenience the reniainderman will be put to in not be  able to avow with exactness c and that though a court of equity may decree  such a lease good between the lessor and lessee yet there be no consider ation  in the case it be not proper the court shall interpose in supply the defect  and thereby lie a charge on the right of a three person e contra on behalf of  the heir at law it be contend that the word estate in company I with other  word descriptive of particular sort of personal property have be often hold  not to carry land that the testatrix use the word heir in the limitation of  this residuary devise be no proof of her meaning any thing inheritable for in  the limitation to Thomas Churchill where she undoubted mean a fee she have use  the word executor and administrator which will not have carry a fee but for  the subsequent word if or ever this show she be not a competent judge of the  propriety of her word that if this clause shall be think comprehensive enough  to take in real as well as personal estate as it be pen in such general term  and without any kind of reference to the power there be no reason to suppose  it intend to extend to the land include in the power as it appear the  testatrix have other land which she plain think she have a right to dispose of  by her will and lest the whole of those other land shall not be comprehend in  the precede part of her will she may add this general clause or make it more  general in order to substitute r c junr in the place of her heir at law as to  what if any thing shall remain undisposed of that the residuary clause may be  satisfy by this Kenyon supposition if not by the personal estate alone that as  long ago as sir Edwd clear case there have be think to be a great difference  between the case where a man be dispose of land of his own property and where  it be to operate as a execution of a power that it shall never be consider as  a execution of a power unless where it can operate no other way and must  otherwise be total nugatory that no authority have be cite to support the  distinction attempt between a execution of a power by a marry woman and b that  a person at large and therefore the court will construe they both alike it be  contend that this will be proper adapt to the power and yet they will have it  take in all her real and personal estate whatsoever though clear she have no  right under the power to make such a general disposition the personal estate  may pass in such general term but as to the real there be no such violent  implication or as it may more proper be call very strong probability of  intention to comprehend any much less that include in the power that the court  must necessary give it that construction and if there be no preponderance the  turn of the scale belong to the heir at law and he be not to be disinherit  where it be so dubious that she may be suppose either to niean or not to mean  to disinherit he thly what interest have Thomas Churchill in the moiety of  Mappercombe farm and on this question it be contend by Mr Henley that the word  item I give and bequeathe unto my kinsman Thomas Churchill all the moiety of  Mappercombe farm now in my possession be a complete sentence and lad no more  to do with the word which follow than with those which go before it if so for  Kenyon want of word of limitation he have only a estate for life and the  remainder expectant on his death pass under the general devise to the  residuary devisee and for this he cite book v book vern where a man devise  Blackaere to a for life and all his land not before devise to b by this the  reversion of Blackacre be hold well devise to b Thomas Churchill the devisee  have by his answer disclaim any right to this farm e con it be insist by Mr  solicitor general that the sentence must be carry on and include the follow  word import a devise to the same person of other land and must be read thus I  give to my kinsman t c the moiety of m farm Kenyon er p and likewise give he  laud of another denomination to he his exeputors administrator and assigits  for ever that the whole make but one complete sentence and the word of  limitation relate and must be carry back as well to the land include in the  first description as the last which will give he a estate in fee and as to his  disclaimer it be only on the foundation of the testatrixs have no right to  devise it can bind he against the residuary legatee that whether the  afterpurchased leasehold estate be include in the devise to Thomas Churchill  of all the land which she have purchase except that which she buy of wm sander  for Thomas Churchill it be insist that the devise of all the land which she  have purchase without confine it to freehold or leasehold be large enough to  comprehend both Kenyon e content for the residuary legatee it be urge that the  exception of the estate purchase of sander seem to show that the devise be to  be understand to be of a estate of a similar kind and that this be a freehold  and the duration of the estate which by the limitation be to be for ever  confirm it thly what shall become of the pound as to this Mr Healey insist  that as by the express term of the charge in default of her appointment it be  to go to her executor she have make a executor he be entitle to it e content  it be contend by Mr attorney c that the power of charge a estate with this sum  to be dispose of as she shall appoint and for want of appointment to her  executor or administrator can only entitle her executor in case she have  survive her husband and die without make any appointment that though she have  here name a executor in her will that executor can be intend as liar general  representative but only her representative quoad the subjectmatter of her  appointment that the husband only be her general representative and as such  entitle to this money Lord chancellor the principal and most material question  upon this will arise from the last clause in it whereby the testatrix give all  the rest of her good chattel estate and estate whatsoever undisposed of unto  her kinsman Richard Churchill junior his heir executor and assign for ever and  appoint he executor upon this clause two question have be make saint Kenyon  whether it comprehend as well real as personal estate or be confine to the  latter only dly suppose it may comprehend both whether it be not restrain by  the testatrixs incapacity to dispose as a feme covert or whether it can be  support as a execution of the power give her by the settlement be it as to  what kind of estate passes by this devise I think the word sufficient to  comprehend both and have this be the will of a person who have a general  capacity to dispose of land of which he have the general ownership pursuant to  the statute of will such land will certain have pass for this be a gift of a  residuum of all the testatrixs good chattel estate and estate whatsoever in a  will wherein before as well real as personal estate be devise as to the word  estate be accompany with personal thing in which case it have be general  restrain to relate to thing the same noble birth this be particular pen in  that respect and the clear answer to that objection here be that though the  word estate and estate be in company with personal thing those personal thing  be word describe personal estate in general where a testator mention debt  money or any other particular species of personal estate and then add the word  estate there be ground to say the word estate may be mean to enlarge and take  in the other sort of personal property but good and chattel include all  personal estate and the word estate add to they must mean nothing if not real  estate beside the word be estate and estate now the word estate be never use  to describe a interest but whenever it be thus use in the plural number it  mean as in common parlance farm c dly as a feme covert can give nothing by  virtue of her ownership do this general clause include those Kenyon land of  which she have a power to dispose by the settlement now there be different  sort of power power over a estate of anotherpower overone sownestate have this  be a powerover the estate ofanother it will be Kenyon er p go a great way to  say such a estate shall pass under this general residuary clause it be not to  be presume such can be mean and in the next place the description of which the  word my be a part will not have take they in it have be dispute whether a feme  covert can execute a power couple with a interest and it be hold she may by  the house of lord with the advice of the judge in rich v Beaumont that be a  general power but here the question can arise because this power be express to  be execute whether covert or sole this be original the testatrixs own estate  she have settle it to herself for life and after in strict settlement with a  power to dispose of it in default of issue of the marriage so that the  reversion in fee be in herself and unless she dispose of it will remain in her  and descend to her heir beyond all question then the estate be she and the  inheritance will have descend from her what then isl the difference between  her case and that of a person who have a general capacity by virtue of the  statute of h accord to the general rule the will shall operate as it may as  awill as anappointment or partly one and partly the other ut res to greater  extent to be strong how to pass away it can not operate as a will on account  of her incapacity by coverture the land be take into the description by the  word my c for the estate be she Kenyon and she bad in this special manner a  power to dispose of it by devise she do not dispose by virtue of her ownership  but the word my perfect the description as these be in fat her land I be of  opinion then that those land whatever they be do pass and the rather because  the whole will must be consider as a execution of her power for though the  land purchase will not pass yet she intend to give they by her power for as  the money with which they be purchase arise from the land include in her power  she certain think but she be mistakeD that they will be include likewise she  can not dispose of her good and chatter but under this power yet there be no  more reference to the power in respect of they than of the land why then may  not the one as well as the other be dispose of without a reference the next  question be whether this will take in any part of Mappercombe farm which it  seem be the most valuable part of the land and thaf depend on the construction  of the devise to Thomas Churchill whether or no that be a devise of the fee or  passes only a estate for life I think it a fee for she give he a moiety of  Mappercombe farm then in her possession have she stop there he will to be sure  have have a estate for life only but she go on and likewise give he all the  land she have purchase except c to he his executor administrator and assign  for ever the question be whether this be two clause or one consist of two  branch I think it one clause of two branch it be like a grant in a deed of  land with several and alsos the habendum after refer to all that precede it  though this be not a habendum it ought to receive the same construction it be  exact the case of coal v Rawlinson salk only there the word of limitation  precede the last part of the premise Lord holt think the de Kenyon visee ought  to take only a estate for life in those because the word two heir can not be  carry forward but the other three judge think it the same whether preponed or  postpone this however be strong for here the word of limitation follow the  whole No objection can arise from the word executor c for as the word for ever  alone will carry a fee the addition of executor c can make no difference and  therefore the fee I be of opinion belong to Thomas Churchill another question  there be in respect to the land contract for with wm S whether she old devise  those land as they be purchase by her out of her separate personal estate  where a feme covert have a separate personal estate the general rule of the  court have be thatshe may dispose of it or of any personal thing purchase with  or arise from it and several case have be so determine but if part of that  personal estate be lie out in the purchase of land though those land be the  fruit of and do arise from that separate estate there be no authority to say  she may dispose of they for there come in another person he says heir at law  to be disinherit and he can be bind by any agreement of the husband if there  be a agreement between husband and wife intend to enable her to dispose of  land however strong it will Bro Parl can Sugden on pow Kenyon er p be of no  force for by no method can a heir at law of a feme covert be disinherit but by  proper conveyance fine declaration of use or appointment by vest the whole in  trustee in trust for such person as the wife as the power be here or by limit  it to such use as she shall appoint and then when she make a appointment b the  statute of use that appointee take from the original conveyance in which that  power be create and not from the particular instrument by which it be execute  where land be Kenyon purchase after there be no trust no use that can give  force to a appointment of they but then with respect to sander the contract  not be execute be it be say must be consider as a trustee yet as it be  consider as a thing do it must have the same legal and equitable construction  I agree he be in certain case to be consider as a trustee but have this be  convey to trustee a feme covert without a particular power can no more appoint  a trustestate than a legal one therefore as the purchase land be not such as  she have a power over I be of opinion they can pass by any part of her will  but must go to the heir at law but then here be purchase of leasehold estate  and another question be whether they be devise by the will they must be so in  one part or the other of it if they be not specifical devise they will fall  under the word good and chattel into the residuary devise for this whether  money or leaseholdestates be still personal and subject to her power the  question then be between the brother whether or no the devise to Thomas  include the leaseholdestates or only the freehold I think it sufficient to  take in both the real and personal but as to the real they can pass have not  freeholdlands be except out of this devise I shall have doubt whether or no  any real estate be intend to pass by it but for the word for ever in the  limitation the freeholdestates can not have pass only for life this part of  the limitation apply to they the word executor c be proper applicable to  leaseholds only where a man have a freehold and leasehold estate in the same  will devise all his land in that will to one his heir executor and  administrator will not all pass I think they Kenyon will for he have use such  word as describe or apply to his interest in both then as to theX as she have  make a will and name a executor though no particular appointment of this money  it be insist it shall go to the executor on the other side Mr attorney contend  as there be no particular appointment of it it be to go to her general  representative her husband not to her executor who be make such he say for a  particular purpose only I think there be no ground for this a feme covert with  the consent of her husband may make a will and that will accord to late case  in the spiritual court will have probate and the executor then become full and  complete representative for the husband can have administration this money  belong then to the executor and become part of her asset out of which the  contract with sander be to be carry into execution decree the plaintiff then I  declare entitle to all the freeholdlands purchase or contract for by the  testatrix Eliza Dibben during her coverture for the profit of which the  defendant Thomas Dibben be to account as likewise for the leaseholder estate  at porten and deliver possession the defendant Thomas Churchill entitle to all  the land hold by lease for year purchase by the testatrix during her coverture  for which he be to have a account and possession he be likewise entitle to the  inheritance of such part of Mappercombe farm as by the settlement be subject  to her power of appointment for which the party receive the profit be to  account and deliver possession I declare the pound to belong to Richard  Churchill the executor as part of her personal estate the contingency Kenyon  have happen on which the term for raise it commence declare the defendant  Richard entitle to all the freeholdestates comprehend in the marriage  settlement and thereby subject to the testatrixs power of appointment except  what pass to Thomas Churchill by the devise of a moiety of Mappercombe farm  and to all the leaseholdestates comprise in the marriage settlement except  that at porten and let he have possession and a account the land contract for  with sander to be convey to the plaintiff and the purchasemoney to be pay by  Richard the defendant Dibben to account with the plaintiff for the rend ut  that defendant Richard be to pay the interest out of the asset of the  testatrix for which unless he admit asset he be to account I declare the will  well prove and establish cost c reserve Kenyon er p