for The father, by a will attested by two witneffes only, diftributed this fum of 300l. It was decreed by Sir John Strange M. R., that this will, though not duly executed according to the statute, was still a good appointment; because it did not make the charge, but only distributed the money. $ 19. Where a power of appointment is given, to be executed by a will attested only by two witnesses, Fearne's Op. in such case, a will attested by two witnesses only, ope432. A Will made in Execution of a Power retains all its Properties. 1 Vefey 139. 2 Veley 77. 2 Veley 212. rates as a good appointment, because it does not derive its effect from the ftatute of wills, but from the deed by which the power is created; and the disposition is not confidered as testamentary in its origin. § 20. Although a will made in execution of a power does not derive its effect from the ftatute of wills, but from the original settlement or deed of uses, by which the power is created, and a will made under thefe circumstances, is, in fact, an appointment of a use, and not a devise, yet it retains all the effential properties of a will. It is construed in the fame manner as if it was a proper will, for, otherwise, there would be a strange confufion in the interpretations of teftamentary dispositions, if some were to be construed as proper wills, and others as appointments. § 21. A will of § 21. A will made in execution of a power is revocable in itself, without the infertion of a power revocation: whereas, we have feen, that if a perfon executes a power by deed, he cannot afterwards revoke fuch deed, unless he referves to himself a new power of revocation. § 22. The appointee under a will made in execution of a power, must survive the appointor, otherwise the appointment will be void; and an appointment by will under a power, operates as a common devise: and the appointee in fee-fimple (if heir at law) is in by descent, and not by purchase. any need not be recited. § 23. An inftrument may operate as a revocation The Power and appointment, without recital or mention of the power, or any declaration that fuch inftrument was intended as an execution of the power; for, if the act Hob. 160. done be of fuch a nature, that it can have no operation, unless by virtue of the power, the law will refort to the power, and thereby give validity to the inftrument, upon the principle or rule of law, that, quando non valet quod ago, ut ago, valeat quantum valere poteft. S24. Clement Harwood being feifed of three acres of land, held in capite, made a feoffment in fee of two of them, to the use of his wife for life, and afterwards made a feoffment of the third acre, to the use of such perfon or perfons as he should by his last will in writing appoint. Clement Harwood afterwards devised the third acre by his will in writing to a stranger in fee. VOL. IV. S It Clere's Cafe, 6 Rep. 17. Cro. Ja. 3 Eliz. 877 Scrope'sCafe, 10 kep. 143. Dor Guy v. mond 295. It was refolved, that as Clement Harwood had not a power of devifing the third acre under the ftatute of wills, it being held in capite, his will fhould operate as an appointment under his power, for, otherwise, it would have no effect whatever. S 25. Nicholas Scrope referved to himself a power of revocation, by writing indented under his hand and feal, fubfcribed in the prefence of three witneffes; afterwards, he covenanted to ftand feifed of the fame lands to other ufes. It was refolved in the court of wards, by the two Chief Juftices and the Chief Baron, that although there was no express declaration of any intention to revoke the former uses, yet that this conveyance fhould enure, firft, as a revocation of the former uses, and 'fecondly, as a declaration of new uses; quia non refert an quis intentionem fuam declaret verbis, an rebus ipfis et faclis; and when Scrope limited new uses, he thereby fignified his purpose to revoke the former ones. § 26. William Dormer conveyed his eftate to truftees, to certain ufes, with a provifo, that if he should, by any writing executed in the prefence of two or more witneffes, in exprefs words, fignify and declare his intention to revoke or make void that deed, the ufes fhould ceafe. William Dormer afterwards made his will in writing, figned and fealed in the presence of two witnesses, by which he gave and devised the lands to different perfons from thofe to whom they were limited by the deed. It was determined, that the power 2P.Wms.414. of revocation was well executed. Deg v. Deg, strument must refer to the $ 27. The inftrument by which a power is executed, But the Inmuft, however, have fome reference to, or muft mention the estate on which it is intended to operate, other- Eitate. wife it will not be confidered as a revocation or appointment. But it will be fufficient that the estate fubjected to the power, be referred to in terms which include it with the other property of the appointor, although it be not particularized. § 28. A perfon having a power to charge an eftate with 2,000l. after the death of his wife, and a term of years being created for that purpose, he made a will, beginning with these words, "I charge all my real "eftate." It was held by Lord Hardwicke, that if a man had a power to charge an estate, it was not neceffary, in the execution of it, that he fhould refer to the deed out of which the power arose, for, in a court of equity, it was enough that his intent appeared; and if, in the execution, he fufficiently defcribed the estate he had a power to charge, it would be bound, especially where the perfon charging was a purchafer of the power: and his Lordship held, that the power was well executed. Probert v. Morgan, Vide i Atk. 559. be executed by feveral Inftruments. § 29. Although a power of appointment be directed A Power may to be executed by any deed or writing, yet it may be executed by several acts and affurances, provided they have fuch a relation to each other, that they can be confidered as making together but one affurance. Herring v. 2 Show. 185. 2 Burr. R. 704. Doug. Rep. 45. And at dif $ 30. Sir James Williams being feised in fee, made a voluntary settlement, to the use of himself for life, remainder to his brother in tail, referving to himself a power of revocation, by deed indented and figned by two or more witneffes. Some time after, Sir J.Williams levied a fine, and, by a deed made between him, his brother, and others, bearing date a month after the fine was levied, reciting the fine, it was declared, that at the time of levying the faid fine, the agreement of all the parties was, that it' fhould enure to the use of Sir J. Williams and his heirs. It was determined in the Exchequer Chamber by fix Judges against two, that this fine and declaration of uses were to be confidered as one and the fame conveyance, and operated as an execution of the power. S31. Powers of revocation and appointment may ferent Times. be executed at different times, over different parts of the estates which are fubject to the power. Digge's Cafe, 1 Rep. 173. Sir R. Lee's Cafe, 1 And. 67. S. P. $ 32. Christopher Digges, in confideration of his marriage, covenanted to stand seised to the ufe of himself for life, remainder to the ufe of his fon in tail, &c. with a provifo, that it should be lawful for him to revoke any of the ufes or eftates, and to limit new uses. Christopher Digges revoked the ufes of part of the land, and afterwards revoked the ufes of another part. It was refolved, that he might revoke part at one time, and part at another, and fo of the refidue, until he had revoked all. I § 33. A power |