for I do not conceive the Judges meant to decide, that where there is a conveyance to fuch uses as a man fhall appoint, and, in default of appointment, to his own right heirs, the party may not under the power create an eftate that will fuperfede the estate in fee, though. perhaps not to bar dower. If that cafe is taken in the full extent, it is very doubtful, and would fet afide half the conveyances in the kingdom, and I defire to be understood, that is not my opinion. But I do not by any means go upon that ground. I will fuppofe he had the power; but he also had an intereft. The very refpectable opinions, upon which this objection has been taken, only state it as a doubt; and they are oppofed by the opinion of another gentleman in favour of the title. But I must determine upon the case, as it appears upon confideration of the conveyance; and I am clearly of opinion, upon every principle upon which the court acts with regard to the construction of conveyances, that it would be monstrous in this case to hold, that where there is a power and an intereft, and the act being equivocal, it is doubtful whether he acted under the one or the other, the court should adopt that, which would defeat the inftrument. But this cafe goes farther: for the act is not equivocal. The party has made ufe of words, that have no reference to the execution of a power. I am of opinion, therefore, that this is an exceedingly good title. Execution of § 61. With refpect to the effects attending the exe- Effects of the cution of a power, it has been already ftated, that when a power is executed, the former ufes and eftates cease, a Power, 1 Inft. 376 6. f. I. 2 Atk. 565. 2 Vel. 78. cease, and a new ufe fprings up to the appointee, which is derived from the feifin or fcintilla juris of the releasees or trustees, and the ftatute immediately executes the poffeffion to fuch new uses, by which means the appointee acquires the legal estate, without entry or claim. § 62. Although estates which arise from the execu tion of powers owe their commencement to the deed of appointment, yet the appointee under a power does not derive his title from the appointor, or out of the estate whereof the appointor is feifed, but comes in directly under the original conveyance, by which the power was created, and the uses declared by the appointment, being in order prior to the ufes limited by the original deed; which only take place in the mean time, and until the appointment, fuch new uses precede them, and the appointment operates by relation, from the time when the original deed was executed, juft as if the estate created by the appointment had been actually limited in the original conveyance. § 63. In the cafe of the Duke of Marlborough v. Lord Godolphin, which arose upon an appointment of perfonal eftate, Lord Hardwicke faid-" I admit the "principle, that where a perfon takes by execution "of a power, whether of reality or perfonalty, it is "taken under the authority of that power: but not "from the time of the creation of that power. "There is no cafe that the relation fhall go back for "that, which is quite of another nature: and that is "the "the point, which must be contended for here, that "they must take by relation, fo as to make them "take from the time of the creation of the power; "for which there is no authority: and that would be "unreasonable. The meaning that the persons must "take under the power, or as if their names had "been inferted in the power, is, that they shall take " in the fame manner as if the power and inftrument "executing the power had been incorporated in one "instrument; then they fhall take, as if all that "was in the inftrument executing, had been expreffed "in that giving the power. So is it in appointments " of uses. If a feoffment is executed to fuch uses, " as he fhall appoint by will, when the will is made, "it is clear, that the appointee, ceftui que ufe, is in 66 by the feoffment; but has nothing from the time of "the execution of the feoffment, fo as to veft the "eftate in him. The estate will veft in him accord ing to the nature of the act done, and appoint"ment of the use, from the time of the teftator's "death. This, therefore, is not a relation, fo as to "make things veft from the time of the power, but "according to the time of that act executing that power; not like the referring back in case of "affignment in commiffion of bankruptcy: that is, "by force of the statute, and to avoid mefne wrong"ful acts. The cafe was put of a bargain and fale; "which was faid to be like this of a will, or inftru66 ment in nature of a will. A bargain and fale, "when acknowledged and enrolled, has relation to "the time of execution; and if the grantee dies "within fix months, and afterwards it is acknow "ledged Inft. 216 a. .2. 1 Inft. 379 b. n. I. Vide 4 Vef. Tit. 12. c. I. f. II. ledged and inrolled, it is good; that is, becaufe, it "is a collateral act acquired by act of parliament, "and not arifing from the nature of the inftrument " itself." § 64. Where an eftate is limited to fuch ufes as A. B. fhall appoint, and in the mean time, and until appointment to the ufe of the faid A. B. and his heirs ; if A. B. happens to be married at the time when fuch conveyance is made, his wife becomes entitled to dower. But if A. B. executes his power of appointment, a new use arises, and vefts in the appointee, and the fee fimple originally limited to A. B. ceases, by which means, it is fuppofed that his wife's right to dower will also cease, § 65. An appointment in pursuance of a power operates under the statute of uses, not as a conveyance of the land, but as a fubftitution of a new use, in the place of a former one; and a use appointed under a power takes effect in the fame manner as if it had been inferted in the original deed, in the place of the power. From which it follows, that if an appointment is made under a power to A. to the use of B. and his heirs, it is a limitation of a ufe upon a ufe; and confequently B. only takes a truft eftate. It is therefore the practice, where an appointment is made to particular ufes, to appoint the lands not to trustees to ufes, as in the cafe of a releafe, but to the particular uses intended. § 66. Where § 66. Where a perfon fettles his eftate to the use of himself for life, remainder over, referving to himfelf a power of revocation, and executes his power, he becomes immediately feised of his former eftate, without any entry or claim; because, as he is already in poffeffion, he cannot enter on himself, and the revocation is stronger than any claim can be. § 67. It was refolved in Digge's case, that other ufes might be limited or raised by the fame conveyance, which revoked the former uses, for inasmuch as the ancient ufes ceafe ipfo facto by the revocation, without claim or other act, the law will adjudge priority of the operation of one and the fame deed, although it be fealed and delivered at one and the fame inftant; and therefore in conftruction of law, it fhall first be a revocation, and a ceffer of the ancient uses, and then a limitation or raising of the new ones; for the best conftruction of the ftatute of uses was to make them fubject to the rules of the common law, according to which, if two acts were done by one and the fame means, and took place in one and the fame inftant, the law would fo conftrue them, that that act fhould be taken to precede, which would give efficacy to the entire inftrument. $68. The execution of a power will not defeat an estate previously created, by the perfon who exe cutes it. 1 Inft. 218 b. I Rep. 174 a. Rep. 174 a. 6 Rep. 33 a. Will not defeat a Prior § 69. An eftate was fettled, in confideration of Goodright marriage, to A. for life, &c. and a power was given Doug. 477. to v. Cator, |