TITLE XXXII. DE E D. May be reArained by Circumitances. POWERS of revocation and appointment were formerly directed to be executed by the tender of a ring, the payment of a fum of money, &c. But in modern times they have in general been directed to be executed by deed or inftrument in writing, or by will. § 2. The execution of powers of revocation and appointment may be reftrained by fuch collateral circumftances, cumstances, and directed to be done by fuch inftruments, attended with fuch forms and ceremonies, as the perfons creating the power may think proper. Nor can a court of law difpenfe with the performance of those ceremonies without violating the intention of the parties. 55.107. This rule is the fame, though the power be referved 3 Cha. Ca. to the original owner of the estate; for where a man debars himself from making any future difpofition of his property, except by an act attended with certain forms, no court of law can difpenfe with the obfervance of thofe forms; becaufe a man may feel confcious of fuch weaknefs or frailty of mind, as to require that all future difpofitions made by him, fhould be attended with fuch forms and folemnities, as may effectually prevent furprife and impofition. S3. It has therefore been established at law, as a general rule, ever fince the introduction of powers, 10 Rep. 144. that all the forms and circumftances prefcribed by the deed, by which the power is created, must be strictly obferved; otherwife no revocation or new appoint ment will take place. S 4. Thus, where the execution of a power of Digga's Cafe, revocation and appointment was directed to be by deed 1 Rp. 173indented to be inrolled; it was refolved, that these circumstances must be complied with, for if the deed were allowed to operate as a revocation before inrolment, then it never would be inrolled. It was alfo refolved in the fame cafe, that where the deed was directed R 4 Hawkins v. directed to be inrolled in a particular court, it must be inrolled in that court. § 5. A husband who was tenant for life had a power of revocation, by any deed or inftrument in writing, to be executed by him in the prefence of and attefted by three or more credible witnesses; and to be inrolled in one of his Majefty's courts of record, at Westminster, by and with the confent and approbation, in writing, of nine perfons, or the furvivors or furvivor of them, but not otherwife. One of the nine perfons, whofe confent was neceffary, gave a power of attorney to the husband, authorizing him to confent to any revocation he should think proper to make, and to execute any deed or inftrument neceffary for that purpose. By a deed poll, executed by the husband in his own character, and alfo as attorney to one of the trustees under the power mentioned, he revoked the ufes; and this deed was inrolled. Seven years after, the husband by an indenture, reciting the deed of revocation, and that, it being executed by the husband as the attorney of one of the perfons whose consent was neceffary, upon that account doubts were entertained of its validity, as a revocation, revoked the uses with the confent of all the parties required; but this deed was not inrolled in the lifetime of the husband. The court refolved, that the firft deed was not a good revocation; because the confent of one of the perfons, perfons, whose confent was neceffary, was not fufficiently given by the execution of the deed by the husband, as his attorney; becaufe, if fuch a mode of fignifying a confent was held fufficient, it would be a total destruction of the check intended, by requiring the perfonal approbation of a third perfon; and that the fecond deed was not fufficient, because it was not inrolled; and that the inrolment of the first deed could not be transferred to the fecond, for every thing, required to be done in the execution of fuch a power, ought to be strictly performed. § 6. Where a perfon referved to himself a power of revocation by any deed or writing, to be executed in the prefence of fix witneffes, whereof three fhould be peers; a will executed before three witneffes, was held not to be an execution of the power. S § 7. The Duke of Albemarle made his will in 1675, and thereby gave a great part of his estate to the Earl of Bath. In 1681, he made a deed of fettlement, whereby, though he varied in feveral particulars from his will, yet he limited the greatest part of his estate to Lord Bath. In this fettlement the Duke reserved to himself a power of revocation, by any deed in writing, to be executed by him, in the prefence of fix or more credible witneffes, three whereof to be peers of the realm. In 1688, the Duke made another will, attefted by three witnesses only, whereby he revoked this fettle ment, Bath & 3 Cha. Ca.55. 2 Freem. 193. ment, and gave a great part of his eftate to Mr. Monk. Mr. Monk, upon the Duke's death, brought a bill in Chancery to fet afide the fettlement, and establish the will; and it was infifted on his behalf, that although the will might not in ftrictness of law, be a revocation of the deed of fettlement, the circumftances required not having been purfued, either in the number or quality of the witneffes, yet as it was made with great deliberation, it being in proof that the draft was not completed until fix months after inftructions had been given for preparing it, and that Lord Chief Juftice Pollexfen's opinion was taken upon it, it ought to be deemed an effectual revocation in equity, although the circumstances required had not been strictly pursued; as they were only prescribed to prevent surprise, and it was evident there was none in this cafe. But it was held by Lord Keeper Somers, the two Chief Justices Holt and Treby, and Baron Powell, that the latter will was no revocation of the former fettlement, either at law or in equity: for in all cafes of revocations, merely voluntary, all the circumstances required by the deed creating the power, must be strictly pursued; and there was no precedent of any cafe in equity in which the court had given any aid, where both parties were volunteers. § 8. Where a power of revocation was given to be executed by will, under hand and feal; a will not fealed was held not to be a revocation. § 9. Husband $ |