case aymor rich appellant george beaumont and other respondent that February  Mews dig ten xv where a power be give to a woman to dispose of her estate by  will and she afterward marry it seem that the marriage be a suspension of her  power but if she survive the husband her power revive say quaere for the lord  direct a case for the opinion of the judge of b r decree of Lord Hardwicke c  reverse in atk the principle of this case be thus state by the attorneygeneral  arguendo in the case of Hearle v Greenbank it be a rule that where a person  have two way of do a thing and it can be do one way it shall be do another ut  res to greater extent to be strong how to pass away so that if it can be  dispose of by way of interest yet it shall bet a good disposition by way of  power viner vol p can vol p can Eq ab can can see atkins a treaty of marriage  be conclude between the appellant and grace bagshaw the only daughter and heir  of William bagshaw decease and the say grace be then seize in fee tail of  several manor land and hereditament in the county of Derby part thereof in  possession and other part in reversion expectant upon the death of Elizabeth  her mother who after the death of Mr bagshaw marry with Daniel clarke and have  a intention to suffer a common recover of her say brown er p estate and to  settle the same in such manner as she shall think fit brown notwithstanding  her coverture by indenture of lease and release date the that and that of  October make between Daniel clarke and Elizabeth his wife and grace bagshaw of  the first part William Scrimshire and John launder of the second part and the  respondent athorpe Wadsworth and shore of the three part the say Daniel clarke  and Elizabeth his wife and grace bagshaw for the bar of all estate tail  remainder and reversion of and in the manor message land and hereditament  therein mention do grant and release to Scrimshire and launder and their heir  the manor of great Hucklow and all and every the message land and hereditament  of they the say Daniel clarke and Elizabeth his wife and grace bagshaw or any  of they in great Hucklow little Hucklow FlagMoney ash and tidswell in the  county of Derby to the intent that Scrimshire and launder may be tenant of the  freehold of the say premise for the suffer a common recovery thereof and which  be accord suffer in Michaelmas term follow and it be by the say indenture of  release covenant that the intend recovery shall be and enure to and for the  use and purpose and upon the trust therein after declare videlicet to the use  and intent that Elizabeth clarke may have during her life a annuity or rend  charge of pound to be issue and Payable out of the premise by quarterly  payment free from tax and with power of distress for non payment thereof and  subject to such rentcharge to the use of the respondent athorpe Wadsworth and  shore their heir and assign upon trust to permit and suffer grace bagshaw and  her assign during the term of year to be account from the date of the say  indenture if she shall so long live to receiver and take the rend and profit  of the say premise to and for her sole and separate use and benefit whether  she shall be sole or marry and exclusive of any husband or husband she may at  any time thereafter marry and upon further trust that if grace bagshaw shall  leave issue either a son or son daughter or daughter or both that shall  survive her or that the issue of such son or son daughter or daughter shall  survive her then the trustee and the survivor of they his heir and assign  shall upon request and at the direction of the say grace bagshaw testify under  her hand and seal by any deed in write or by her last will and testament in  write or any instrument purport to be heir last will sign in the presence of  three or more credible witness grant and convey the premise subject to the say  yearly rentcharge to and among such child child as she shall leave or to the  issue of such child or child if they shall die before the mother to and for  such estate and use and in such manner and proportion as by such write will or  instrument shall be direct and appoint and for want of such direction and  appointment shall grant and convey the say premise to and among such child or  child of the say grace bagshaw as she shall leave at her decease or in case of  the death of such child or child before her then to the issue of such child or  child brown equal to be divide among they to take as tenant in common and not  as joint tenant and upon further trust that in case grace bagshaw shall leave  no issue of her body and that the say Elizabeth clarke her mother shall  survive her then the trustee and the survivor of they his heir and assign  shall upon request and at the charge of the say Elizabeth clarke grant and  convey the say premise to her and heir heir and upon further trust that in  case Elizabeth clarke shall not survive the say grace bagshaw then the trustee  and the survivor of they his heir and assign shall upon request and at the  charge of the say grace bagshaw grant and convey the premise to her and her  heir or to such other use or use person or person and for such estate and  estate as she shall of any instrument in write under her hand and seal attest  by two or more credible witness or by heir last will and testament in write  duly execute or other instrument purport to be her last will and testament  direct and appoint and for want of such appointment then to convey the same to  such person and person and their heir as for the time be shall be heir at law  of the say grace bagshaw and in this indenture of release be contain a proviso  that in case the say grace bagshaw shall survive the say Elizabeth clarke it  shall and may be lawful to and for her by deed indent under her hand and seal  execute in the presence of three or more credible witness or by her last will  and testament in brown er p write duly execute to revoke alter change  determine and make void all or any the use or use estate or estate therein  before limit declare or appoint of and concern the say premise and by the same  or any other deed or will to create or raise limit or appoint any other new  use or use estate or estate of and concern the same or any part thereof grace  bagshaw at the time of execute these deed declare she be go to be marry to the  appellant and that she intend the estate for the advancement of the appellant  and his family and the deed be accord execute with a view and intention of  vest a power in her for that end and purpose the marriage be soon afterward  have and Elizabeth clarke die in January in the lifetime of her daughter grace  the appellant and his wife have issue only one son name Elkanah and she have a  settle intention to advance the appellant and his family as she frequent  declare by virtue and in pursuance of the power reserve to and vest in her by  the say settlement but without have any opportunity of see the same do on the  that of September make sign and seal her last will and testament attest by  three credible witness and thereby give and devise to her say son all her real  estate in land tenement and hereditament whether freehold or copyhold in the  county of Derby and will that her say son shall enter into full possession of  one half of her say real estate as soon as he shall accomplish his age of or  day of marriage which brown shall first happen and into full possession of the  residue thereof at the death of the appellant his father and she give to the  appellant all the rend and profit of her say real estate until such time as  her say son shall accomplish his age of or day of marriage the appellant take  care to maintain educate and bring up her say son accord to his degree and  quality until such his age or marriage as aforesaid and from and after the  time that her son shall attain such his age or marriage she thereby give to  the appellant only one half of the rend and profit of her say real estate for  and during the term of his natural life and if her son shall happen to die in  his minority not have any lawful issue at the time of his decease then she  devise all her say real estate to the appellant his heir and assign for ever  and she order and direct that heir trustee or such of they as shall be live  name in a settlement late make of her estate in Derbyshire shall convey their  say trust estate to such use and for such person as be name in her say will  and she thereby give all her good chattel and personal estate whatsoever and  also her lead i and mineral duty to the appellant and make he sole executor on  the very same day the testatrix die and in February follow heir son also die a  infant and without issue the appellant apprehend that by virtue of the say  will or write purport to be the last will of his say wife he be upon the death  of his son well entitle in equity to the feesimple and inheritance of the  premise and to have a conveyance of the legal estate thereof make to he and  his heir by the trustee in Hilary term exhibit his bill in chancery against  the respondent George Beaumont Gertrude jane Elizabeth and Sarah grammar as  the heir at law of his late wife and against the trustee pray that the trustee  may convey the legal estate in the premise to the appellant and his heir the  defendant have put in their answer and witness be examine on both side the  cause come to a hear before the Lord chancellor king on the that of February  when his lordship be please to dismiss the appellant bill as against the  trustee with cost and as to the other defendant the heir at law without cost  his lordship declare that if the appellant have any title to the premise in  question his remedy be proper at law and not in equity the appellant therefore  appeal from the decree and on his behalf it be argue p York t Lutwyche that in  case his late wife happen to survive Elizabeth clarke her mother then the  trustee of the settlement pursuant to the trust therein declare by a separate  and distinct clause be upon heir request and at her option either to convey  the premise to herself and her heir in her lifetime or to such other person or  person and for such estate and estate as she shall by any instrument in write  under her hand and seal attest by two or more witness or by her last will in  write duly execute or other instrument purport to be her last will brown brown  er p and testament direct and appoint that by the intent of the general  proviso in the close of the settlement a absolute power be also reserve to the  appellant wife on the death of her mother to revoke and alter the former trust  and to substitute new one in their place by her last will and testament duly  execute and to declare for who benefit such new trust shall enure that she  have survive her mother which be the only contingency express in either of the  say clause and have by her will or a instrument purport to be her will duly  execute subsequent to her mother death limit and appoint the premise and the  equitable estate therein to the appellant and his heir upon the contingency  therein mention and which have since happen the appellant ought to enjoy the  benefit of such appointment and be entitle to have a conveyance of the legal  estate from the trustee accord that the appellant wife by her say will or  instrument direct her trustee to convey their trust estate to such use and for  such person as be name therein whereby she express declare her intention to be  that the legal estate shall remain in the trustee and direct it to be convey  by they to such beneficiary and trust as she have nominate by her will and the  only proper remedy to obtain such conveyance be in a court of equity but if  this will or instrument shall be construe to enure as a revocation of the  legal estate out of the trustee rather than as a declaration off the trust of  that estate the same by such construction will be make to enure contrary to  the express word thereof and contrary to the manifest intention of the party  therein declare that the settlement plain appear to have be execute by the  appellant late wife with a view and intention of put the disposition of her  estate in her own power so that she may thereby have a opportunity of advance  the appellant and his family that her constant declaration to this purpose and  the solemn execution of her will with this view full explain and confirm it to  have be her intention and that this be the cage of a will a trust and a power  arise upon a trust all which have usual receive in court of equity a liberal  sense and construction the same ought here to be take liberal in favour of  their intend operation and no construction ought to be admit which will  manifest overturn and disappoint the declare intention of the party on behalf  of the respondent it be contend c Talbot n fazakerly that there be two  distinct case provide for by the settlement the first if grace bagshaw shall  die leave any child or child or issue of any child or child who shall die in  heir lifetime in which event her power of appoint be confine whole to such  child or child as she shall leave or to the issue of such as shall die before  her and the limitation it default of a appointment be in like manner confine  to her child or child or to their issue the next case provide for be that of  grace bagshaw die without issue survive her which be subdivide upon the  different contingency of her mother survive brown her or of her survive her  mother and to this the power of revocation be immediate subjoin now grace have  leave a son who survive her it be apprehend that neither branch of this  division or the power of revocation ever do or be intend to take place but if  the power exist it be not well execute for when a power be reserve to revoke  by a last will duly execute it must mean a legal will one that be to be make  under those circumstance and with such qualification as the law require but a  feme covert will of land be by law absolute void that there be no necessity  off understanding the will mention in the power in any sense different from  the legal one so as to mean any declaration of her last will and intent though  during coverture because she be unmarried at the time of create the power and  may then have execute it accord to law her marriage be a suspension only of  the power during coverture and upon survive her husband if that contingency  have happen she may again have execute it if the will be a good revocation the  use limit to the trustee be revoke and consequent their legal estate be take  away and vest in the appellant and then there be no foundation for his apply  to a court of equity to have a conveyance from the trustee but whether the  revocation in point of law be good or not be a question mere at law where the  appellant may have the full benefit of his right if he have any and if there  be any legal defect in the execution of the power a court of equity will never  make it good in favour of a volunteer against a disinterest heir and therefore  it be brown er p hope that the order of dismission will be affirm and the  appeal dismiss with cost but after hear counsel on this appeal it be order and  adjudge that the decree of dismission therein complain of shall be reverse and  it be further order that the court of chancery shall direct a case to be state  between the party and to be send to the judge of the court of king bench for  their opinion on the follow point videlicet whether the will or instrument  purport to be the will of grace rich former grace bagshaw the appellant late  wife date the that of September be a good appointment of the estate there in  contain and whether the trust therein limit the use execute or trust and that  on the return of the opinion of the judge of the say court of king bench to  the court of chancery that court shall proceed to make such further order  thereupon as shall be just it seem rather singular say Mr brown that the house  shall upon this occasion direct a case for the opinion of the court of king  bench instead of or during the judge to attend and call for their opinion in  the usual way and in atkins p Lord chancellor Hardwicke say that this be the  only instance of a case make by the direction of the house of lord for the  opinion of the judge but it be still more extraordinary add Mr brown that  after such a case be direct no step shall have be take on either side to have  it argue for after a very laborious search he be not able to discover a single  trace of any further proceed in the cause except a order of the court of  chancery direct the case to be settle by the master in case the party differ  in state it jour vol p