Churchill v Dibben post hill Geo in Chanc will construction power feme covert  a marry woman have freehold estate which be settle on her marriage to her  separate use with a testamentary power of appointment over they make a will by  which without refer to the power she dispose of certain of the estate nominati  and then give all the rest of her good chattel estate and estate to r c hold  that the residuary clause be a good execution of the power as to all the  estate not previous mention if a marry woman have a testamentary power of  appointment make a will it must be intend to be a exercise of the power  although it contain no reference to it a marry woman have real property settle  to her separate use with a testamentary power over it may dispose of  leaseholds and other chattel purchase with the produce of it but not of real  estate so purchase a bequest of all my good chattel estate and estate  whatsoever will pass real as well as personal property by article make  previous to the marriage of t Dibben with Elizabeth brown particular land  therein mention be convey to trustee to receive and pay the rend and profit  over to the say Elizabeth for her separate use and benefit and then on this  further trust that they their heir and assign shall stand seize of all such  premise in trust and for the benefit and behoof of such person for such  interest estate and estate and subject to such power proviso condition  limitation or agreement and in such manner and form as the say Elizabeth brown  shall or may at any time or time hereafter after the say intend marriage shall  he have and solemnized notwithstanding her say intend coverture or whether she  shall be sole by any deed or write by her to be sign or seal in the presence  of two or more credible witness or by her last will and testament in write  sign seal and deliver as aforesaid direct limit or appoint and in default c in  trust for the only use benefit and behoof of the say Elizabeth brown her heir  and assign for ever there be likewise a power give her by the settlement to  appoint pound of her personal estate by her will to such person as she shall  think proper and for want of such appointment it be to go to the executor that  she shall name in her will Elizabeth Dibben with the save out of the estate  which she have to her separate use purchase during the coverture several  freehold land and she likewise contract Simons er p and from time to time as  long as publication shall stand enlarge to exhibit interrogatory for the  examination of witness in chief and for their crossexamination under the then  exist and the new commission as he may be advice the new commission have issue  the defendant give notice that one Sylvester be to be examine as a witness on  his behalf on certain further interrogatory exhibit under the beforementioned  order the commissioner however decline to examine Sylvester on the ground that  he have be examine for the defendant under the former commission and therefore  they have no power to reexamine he without a order of the court for that  purpose whereupon the defendant move for liberty with one sander for some  other freehold land at Nettlecombe but the conveyance of they be not execute  at her death may that her husband be then alive she make her will whereby  without take any notice of the power give her by the settlement she devise as  follow I give unto my sister mary the wife of Richard Churchill Esq all my  estate in porten item I give unto Thomas Churchill all the moiety of  Mappercombe farm now in my possession I likewise give unto my aforesaid  kinsman Thomas Churchill all the land which I have purchase except that which  I purchase of W sander at Nettlecombe item I give unto Thomas Dibben Esq my  husband Buckham farm and the estate purchase of W sander at Nettlecombe item I  give unto my kinswoman Ann Churchill pound and to John Riglan pound all the  rest of my good chattel estate and estate whatsoever I do give and bequeathe  unto Richard Churchill the young to he his heir executor and assign for ever  upon the residuary bequest there arise two question which the Lord chancellor  state with his opinion as follow the first question be upon the extent of the  residuary clause whether it comprise real as well as personal estate if both  then second whether it be not restrain by the incapacity of the testatrix who  as a feme covert can devise only in execution of a power as to the first I  think the word of the residuary clause comprise both real and personal estate  and I consider the present in the same light as if it have be the will of a  unmarried person who have a capacity of ownership in which case there will be  no room for the second question it be say that the word estate stand couple  with other that carry a chattel interest and therefore be restrain to relate  to thing the same noble birth the clear answer to this be that the word estate  do stand so accompany yet it be with word that describe the whole personal  estate which distinguish this from other case where a gift of particular  species of personalty as bind note stock furniture c precede the general word  estate but when she have before give all the residue of her good and chattel  what other personal thing can she give unless therefore the word estate and  estate take in the realty they can have no operation at all that they may have  this sense be determine in the countess of Bridgewater v the duke of Bolton  salk this case be not within the distinction of the determination in I Eq ab  Wilkinson v Merryland another answer to the objection arise from the manner of  pen this clause the word be estate and estate in the plural number the latter  of which be never make use of to describe personal estate but mean the same in  common speech as land and farm the second question relate to the capacity of  the testatrix and I think that this clause be sufficient to pass land by  virtue of the power if it have be the devise of a unmarried woman there can be  no doubt but that this residuary clause will carry everything undisposed of be  there any difference as it be the devise of a feme covert take effect in the  nature of a appointment in pursuance of a power in the marriage settlement  there be several kind of power first over another estate second over one own  estate if this have be of the former kind the land will not have pass it be  former doubt whether a feme covert can execute a power couple with a interest  but in rich v Beaumont bro PC it be determine that she may in the present case  there be no room for that question because the power be give her to execute  whether sole or covert here the inheritance be in herself this be her estate  she have a power over it as her own Simons er p to examine witness  notwithstanding they shall have be examine under the former commission provide  such examination shall not be upon the same interrogatory as the witness have  be before examine upon this application be support by a affidavit state that  the defendant object in apply for the new commission be that he may be allow  to add further interrogatory in order to prove some new and additional fact  discover since the open of the Simons old commission and most important to his  case and that it be of the utmost importance to his defence that Sylvester  shall be again examine on further interrogatory as to some of the fact  thereinbefore refer to and on what difference be there between this and a  person capacity to make a will by the statute of Henry which in that case  shall operate as it can either by ownership or power here she can not give by  virtue of the former the expression all my land comprehend the land over which  she have a power and her ownership explain and complete that description  though she do not give by virtue of the ownership I be of opinion that the  land will pass and the rather because the court must think it a will mean to  execute a power though there Simons be no reference to it which make no  difference it can have no other sense by the very act of make a will she can  have nothing in view but to execute the power that be plain because as a feme  covert she have no other capacity than what be reserve to her by the  settlement which differ this from what it will be if the word can mean a  disposition of other land than what be comprise in the power if a man have a  power by appointment of dispose of particular land and other land of his own  in fee there the latter will satisfy the residuary devise but here the  testatrix must be intend by this disposition to have execute the only power  she have how be the good and chattel to pass but by the power in that manner  they may because the settlement have make they her separate estate as to the  land purchase after marriage I think they will not pass by the will where a  feme covert have a separate fortune she may dispose of the produce of it by  will if she have such a power over her personal estate but if it be lie out in  land she can devise that to the disinherit of her heir that be she shall not  by virtue of any power though before marriage devise a legal estate but it be  clear other wise where a estate be settle in trust subject to such power there  she may devise in execution of a power for he who take by the devise come in  under those who create the power all these purchase estate be legal estate in  her subject to the rule of law and therefore not devisable by virtue of her  ownership on account of her incapacity nor by virtue of any power for there  neither be nor can be any such power if the husband shall agree general with  his wife that she shall have a power to make a will and dispose of her real  estate it will be void the land contract for with W sander and devise to her  husband must be consider as if the conveyance have be execute the vendor who  have still the legal estate in he indeed may to some purpose be consider as a  trustee but this will not give her any power of devise for a feme covert can  no more dispose of a trust than of a legal estate without a particular power  of appointment I be of opinion therefore that as the testatrix have no such  power over those Simons land they will not pass at all either by the  particular devise to Thomas Churchill and her husband or by the residuary  devise to Richard Churchill as to the pound which by the settlement she be  enable to dispose of as she have not give it to any one that must go to her  executor have a power to make a will she may consequent appoint a executor as  it be now the settle practice of the ecclesiastical court to grant probate to  such a executor the husband be general the wife representative be the only  person that will contest this probate and he have preclude himself by the  express stipulation in the settlement upon the whole therefore I be of opinion  that this will passes all her estate real and personal except the land  purchase during the coverture it appear from Lord Kenyons report that the  testatrix appoint Richard Churchill the young her executor but sergeant hill  note omit that fact Simons er p which the defendant will have examine he under  the old commission have he be then acquaint with those fact Mr knight Bruce  and Mr steer for the motion say that the commissioner have act against the  establish practice of the court in refuse to examine a witness on fresh  interrogatory mere because he have be examine before on the old interrogatory  Mr Jacob and Mr g Richard for the plaintiff say that a witness who have be  once examine can not be reexamined except under a special order they cite  Asbee v Shipley mad smith pract p and Stanney v Walmsley mill Craig the  vicechancellor sir l Shadwell I think that the commissioner be not warrant in  refuse to examine the defendant witness for I never understand that where  liberty be give to a party to exhibit fresh interrogatory the examination be  to be confine to new witness motion grant