to take effect; (Brett v. Rigden, Plowd. 343;) yet it appears to have been long settled, that a woman's marriage is a complete revocation of her will. (Forse v. Himbling, 4 Rep. 61; Cotter v. Layer, 2 P. Wms. 624.) But, of course, if after the death of her husband, a woman republishes a will made before her marriage, the will so republished must be as effectual to dispose of her estate as if it had been actually and originally made in and during her widowhood: (Long v. Aldred, 3 Addams, 51:) and circumstances may be shown amounting to a virtual republication, though no formal republication may have been made. (Braham v. Burchell, 3Addams, 264.)

The incapacity of a feme coverte to make a testamentary disposition, though a general, is not an universal rule; thus, the right of disposition may be a necessary incident of separate property, or of the duties of a trust or may reasonably be permitted where the husband is banished for life. (See ante, p. 293, with the note.) It has also long been an established doctrine, that a wife may acquire the right of making a will by the special assent of her husband. (Marriot v. Kinsman, Cro. Car. 220; Eston v. Wood, Cro. Eliz. 27.) If, indeed, a husband's consent that his wife should be at liberty to dispose of property by will, was only given after marriage, and rests merely in agreement between the parties themselves, the agreement is nudum pactum, and may be retracted at any time before assent given by the husband to the probate of such will. (Swinb. part 2, sect. 9.) Lord Nottingham even said, that although the wife made the husband her executor, and he proved the will, still he would be no further bound than in honour to perform it. (Chis

well v. Blackwell, 2 Freem. 70.) However, with due submission to this high authority, a further obligation should seem to arise from the oath, which is required from every executor before probate is granted to him, truly to perform the will, and pay all the legacies of the deceased. (Lindw. 177; Rex v. Raines, 1 Lord Raym. 363; Anonym. 1 Ventr. 365; Brook v. Turner, 2 Mod. 172.) And in a case where a husband, after marriage, gave a bond to a trustee for the purpose of securing to his wife permission to make a will, the bond was held to be a valid obligation; and it was declared, that the disposition made by the wife, in pursuance of the agreement, if not good as a will, ought to operate as an appointment. (Marriot v. Kinsman, Cro. Car. 219, which decision was recognized as sound law by Lord Hardwicke, in The Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. 75.)

A fortiori, a bond of the purport above stated, if given before marriage, would indisputably be binding upon the husband himself; and it seems now to be settled, would in equity estop the claims of the wife's heir in respect of her freehold estates, if she actually devised them during coverture. (Rippon v. Dawday, Ambl. 565.) The decree made by Lord Camden in the case last cited, went to the point which Lord Hardwicke had previously thrown out for consideration, without being then called upon to determine it. In Peacock v. Monk, (2 Ves. sen. 191, 192,) Lord Hardwicke put the question thus:— Can a woman, by bare agreement before marriage, without doing any thing to alter the nature of her real estate, bar her heir? If so, his Lordship intimated, it must be on the principle that the agreement gave the

wife a right to come into equity after marriage, to compel the husband to carry his engagement into execution, and to join with her in a fine to resettle the estate; and then the consideration would be, whether her heir was not bound by the consequences of that agreement. The affirmative was resolved, as already stated, by Lord Camden, and, indeed, had been previously so determined by the House of Lords, in Wright v. Cadogan, (6 Br. P. C. 156, fol. edit.,) if, as Lord Camden held, it makes no difference, as to the principle of determination, in a court of equity, whether the wife's estate was legal or equitable. It is true, that a will made by a married woman, if relating to real estate of inheritance not conveyed in trust, though the woman may have been empowered by contract before marriage to make a will, cannot be supported in a court of law, to the prejudice of her heir: (George v. Ambl. 628) but if the estate be limited to uses, with a power reserved to the feme, before marriage, to declare those uses, in this way her disposal of estates so limited may take effect, and be supported even by a court of common law. (Doe v. Staple, 2 T. R. 695.) And, according to the doctrine of courts of equity, it is quite clear a woman may, antecedently to her marriage, reserve a power over a legal estate of which she is seised, so as to be enabled to dispose thereof during her coverture: in case of her making such a disposition, it is at once effective, provided the forms prescribed by the power have been complied with; and if in this respect the execution be defective, equity will interpose to effectuate it against the heir-at-law, whenever the appointment is shown to have been made upon a good (even though not a

valuable) consideration: (Wilkes v. Holmes, 9 Mod. 486; Shannon v. Bradstreet, 1 Sch. & Lef. 60; Cotter v. Layer, 2 P. Wms. 684 :) but the court will not, in behalf of mere volunteers, aid a defective execution. (Wright v. Cadogan, 2 Eden, 252.) These rules apply, equally, where the wife is only cestui que trust, the legal estate being outstanding. (Wright v. Englefield, Ambl. 473.) It is to be observed, also, that (at least where the execution of the power is intended in favour of volunteers,) if a power has been given to a married woman to appoint the uses of land by will, without more, the will must be intended such a one as is proper for the disposition of land; and consequently must be subscribed by three witnesses, in the presence of the testator. For, whether such an instrument be, strictly speaking, a will, or only in the nature of a will, it is within all the inconveniences which the statute of frauds intended to prevent. (Longford v. Eyre, 1 P. Wms. 741; Duff v. Dalzell, 1 Br. 146.) And though, under a special provision to that effect, a donee of a power affecting real estate may, it seems, well execute the same by a will not attested according to the statute of frauds; (Bath & Montague's case, 3 Cha. Ca. 69;) yet, no one can reserve a power to dispose of his or her own real estate, by will not executed according to the statute; (Goodhill v. Brigham, 1 Bos. & Pull. 198; Habergham v. Vincent, 2 Ves. jun. 226;) though a collateral power to charge the real estate of the donor of the power by the will of the donee, may admit execution by a will executed by two witnesses only; the charge, in such case, being in fact imposed by the instrument creating the power, not by the will, which merely directs the appropriation of

that which the owner has, previously, by deed inter vivos, put beyond his own control. (Jones v. Clough, 2 Ves. sen. 365.) However, it is only a charge upon lands which can be called into operation by a testamentary instrument, not executed according to the provisions of the statute. If the object of the power be to give a right of disposing of the lands themselves, or the uses of the lands, that object can be carried into effect only by a will duly attested. (Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. 76; Longford v. Eyre, 1 P. Wms. 741.)

It has been already intimated, that it has been matter of controversy, whether a disposition of property duly made by a feme coverte, to take place after her death, be, or be not, in technical strictness a will; or whether it ought only to be termed an instrument in writing. (Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. 75; Southby v. Stonehouse, 2 Ves. sen. 612; Oke v. Heath, 1 Ves. sen. 139.) The solution of this critical nicety, supposing the question still to remain in dubio, may, perhaps, seem not to be very imperiously called for; since it is allowed on all hands, that such a writing, if not a proper will, is at any rate of a testamentary nature; that it is liable to revocation and lapse: (Hurst v. Morgan, stated in 1 Hovenden's Supp. to Ves. jun. Rep. 21, whence great part of this note is extracted :) and that, so far as it relates to personal property, it must receive probate in the ecclesiastical court; (Ross v. Ewer, 3 Atk. 160; Cothay v. Sydenham, 2 Br. 392; Stevens v. Bagwell, 15 Ves. 153;) and that the court of Chancery will then give it all the operation of a will;

(Cotter v. Layer, 2 P. Wms. 623; Henley v. Phillips, 2 Atk. 48;) with this qualification, however, that where the testamentary paper is to operate as the execution of a power, (see Lloyd v. Abrahall, stated in 1 Hovenden's Supp. to Ves. jun. Rep. 379, 381,) there, although the judgment of the ecclesiastical court is necessary to declare such instrument to be in the nature of a will, yet the court of Chancery afterwards examines the circumstances of attestation and signature, according to its own rules of evidence; (see post, the addition to Mr. Christian's note to p. 378;) and does not trust the ecclesiastical court with the conclusion, that because the writing is testamentary, it must in equity be deemed a good appointment. (Rich v. Cockell, 9 Ves. 376.)

When an agreement has been entered into, by contract with the intended husband before marriage, that the wife should have free power to make a will at any time during the coverture, a court of equity will not act upon any subsequent instrument, the object of which is to put that power under control in any respect whatever. (Parkes v. White, 11 Ves. 231, 234.) But, though the marital right and interest in his wife's property, may be conclusively renounced by the husband, for himself; and he may have waived the claim which would invalidate the wife's disposition by will of that which, if not disposed of by his consent, must have devolved upon him, as her executor, if he proved the survivor; still, should the husband die before the wife, her will made during coverture will be void as against her next of kin, so far as it attempts to dispose of property

writing, to an attesting witness who did not see him actually execute his will. (Addy v. Grix, 8 Ves. 504; Morison v. Turnour, 18 Ves. 183.) But a distinction must be attended to, where the devise is in execution of a power; there, it is not the will which is to be attested, but the act of the testator in subscribing that will. (Wright v. Wakeford, 17 Ves. 458.) (9) Mr. Christian observes, that "copyholds and terms for years are not within the statute, but will pass by any will which is sufficient to bequeath personalty. 2 Atk. 37; 2 Bro. 58."

[But, this must be understood with some distinction. A term, not in gross, but vested in trustees to attend the inheritance, so follows the nature of the latter, that, if the owner makes a general devise of the land by a will not so attested as to pass the inheritance, not even the trust of the

term will pass. (Whitchurch v.

Whitchurch, 2 P. Wms. 238; S. C. Gilb. Eq. Rep. 171.) Also, even as to terms in gross, though a testator, being possessed of such, may transmit them by the same unsolemn kind of will as he might any other personalty; yet he cannot create them by will, without observing all the forms essential to a devise of real estate; because the interest in right of which the testator creates the term is real estate, and creating the term is a partial devise of it. (Mr. Hargrave's note (3) to Co. Litt. 111 b.)

[Mr. Sugden (in the concluding part of the 2nd section of the 9th chap.. ter of his Treat. on Vend. & Purch.) observes, that a term for years attendant on the inheritance, whether by express declaration, or by implication, is governed by the same rules to which the inheritance itself is subject. Therefore, such a term cannot pass

by a will not executed according to the statute of frauds. (Tiffin v. Tiffin, 2 Freem. 66; Villiers v. Villiers, 2 Atk. 72; Goodright v. Sales, 2 Wils. 331.) But, Mr. Sugden conceives there are good grounds for holding, that where a term attends the inheritance merely by operation of law, the owner may expressly bequeath it by a will not executed with the solemnities required by the statute; and, in support of this opinion, he refers to 9 Mod. 127, and 2 Collect. Jurid. 276. ED.]

Mr. Christian adds, that "where the testator is a trustee for the benefit of others, he may devise those lands, or the legal estate, by his will; but the trust estates will not pass by general words, as, all my lands or estates to pass a trust estate the intention of the testator must be expressly shown. 6 Ves. jun. 577."

[The case cited by Mr. Christian merely proves, that a trust estate will not pass under a general residuary disposition, where it can be collected that the testator only intended to give the devisee property which he could enjoy beneficially, as his own. Lord Eldon (in the subsequent case of Lord Braybroke v. Inskip, 8 Ves. 435,) explains that to be the principle upon which he decided the case referred to by Mr. Christian. It is true, however, that Lord Loughborough (in the earlier case of the Attorney General v. Buller, 5 Ves. 340,) said it was then the understanding, that general words would not pass trust estates, unless there was an apparent intention that they should pass ; but he added, the most convenient rule would be the reverse. And the reverse seems now to be fully established. It appears to be quite settled by the later cases, that under a general devise, estates held by the de