1822.

RAY against PUNG.

and Wood B., that an appointment of the fee by the husband defeated the wife's right to dower out of the fee, which was itself defeated by the execution of the power. And in Roach v. Wadham (a), the wife's dower was considered as defeated by the appointment. The plaintiff, therefore, is entitled to the judgment of the Court.

Barber, for the defendant. The fee in this case was vested in James Ray, subject to a power in him to appoint the fee; and being once vested in him, the wife's right to dower accrued; and he could not, by executing the appointment under the power, divest that right. Cunningham v. Moody (b), and Doe v. Martin (c), are authorities expressly in point to shew that the fee was vested in James Ray until he executed the power. In Goodill v. Brigham (d), there was a devise in fee to a feme covert, with a power to dispose of the estate without the control of her husband; that power was held to be void, as being inconsistent with the fee given to her in the first instance. And in Cox v. Chamberlain (e), Lord Alvanley, commenting upon the case of Goodill v. Brigham, says, "I do not conceive the Judges meant to decide, that where there is a conveyance to such uses as a man shall appoint, and in default of appointment, to his own right heirs, the party may not, under the power, create an estate that will supersede the estate in fee, though not, perhaps, to bar dower." In Maundrell v. Maundrell (f), where a husband had a power of

(a) 5 East, 283.
(c) 4 T. R. 39.
(e) 4 Ves. 631.

(b) 1 Ves. sen. 174.
(d) 1 Bos. & Pul. 192.'
(ƒ) 7 Ves. 567.

appointment,

appointment, and in default thereof an estate for life, re-
mainder to his heirs, the Master of the Rolls held, that if
the power was good, yet that a purchaser, taking by a
conveyance adapted to pass the interest of the estate as a
limitation of the fee, and not as an appointment, was sub-
ject to the wife's claim of dower; and in delivering the
judgment, he says, "The power of appointment is merely
nugatory, and nothing distinct or different from the fec:
the fee was clearly in the husband, until appointment.
In Goodill v. Brigham it was held, that a power added
to the fee was merely void. So the power in this case,
followed by a limitation of the fee, must be absorbed in
the fee, which includes every power. The reason com-
monly given why a power may have effect, though
limited to the owner of the fee, is, that he may appoint
in a mode by which his legal fee would not entitle him to
convey. I give no opinion upon the sufficiency of that
reason; but in this case, it is to such uses as he should
by deed or will appoint, that is, by deed or will, legally
executed; and by those instruments he might have passed
the fee, though nothing was said about the appoint-
ment: the limitation, therefore, operates purely as a
limitation of the fee, and that fee he could only convey,
subject to her right of dower." It is true, that in Maun-`
drell v. Maundrell (a), Lord Eldon expresses a decided
opinion, that a power capable of being executed may
be reserved to the person having the fee; but he does
not say that the consequence of executing the power
would be to deprive the wife of dower.
In Cross v.
Hudson (b) the party had the power to charge an estate,

1822.

RAY

against

PUNG.

(a) 10 Ves. 246.

(b) 3 Bro. C. C. 30.

Pp 4

of

1822.

RAYTM against PUNG.

In

of which he was tenant for life, with intermediate remainders, with a contingent fee to himself; and the contingent fee afterwards came to him: Lord Thurlow held, that the power was merged. In Wilde v. Forte (a) it was held, that the wife was entitled to dower. Sammes v. Payne (b) Anderson J. lays it down, that "If a feoffment be made to the use of I. S. and his heirs, until I. D. hath done such a thing, and then unto the use of J. D. and his heirs, the thing is done, and J. S. dieth, his wife shall be endowed." In Buckworth v. Thirkell c) there was a devise to trustees in fee, in trust to receive the rents and profits, and apply them for the maintenance of Mary Barr, until she should arrive at the age of 21 years, or be married; and upon her attaining such age, or being married, then to her in fee; but in case she should happen to die before she arrived at the age of 21 years, and without leaving issue, then there was a devise over. Mary Barr married and had a child, and afterwards died under the age of 21 years, without leaving issue. The Court of King's Bench were of opinion that her husband became entitled, by the curtesy, to the estate for his life. In this case, therefore, the wife is entitled to dower.

Cur adv. vult.

The following certificate was afterwards sent:
This case has been argued before us; and we are of
opinion, that, under the circumstances, the wife of
James Ray will not be dowable out of the lands,

(a) 4 Taunt. 336.

(b) 1 Leon. 168. Golds. 81.; and see Parke on Lower, 169.
(c) 3 Bos. & Pul. 652, and Col. Jur. 332,

tene

tenements, and hereditaments comprised in the hereinbefore stated indentures, in case of her surviving her husband.

1822.

RAY against PUNG.

C. ABBOTT.

J. BAYLEY.

G. S. HOLROYD.
W. D. BEST.

The Earl and Countess of JERSEY and Others against DEANE.

THE Vice Chancellor sent the following case for the opinion of this Court. By indentures of lease and release, dated the 15th and 16th December, 1806,

limited to the husband for life; remainder to the wife for life; remainder to the use of the first and other sons of the marriage successively in tail male; remainder in case the wife should survive the husband, to her in fee; but if she should die in the lifetime of her husband, remainder to the daughters successively in tail male; remainder to the use of such persons related by blood or consanguinity, and in such estates or interests, and in such manner, and charged with such sums of money in favour of such persons so related, as she by her will might appoint; and in case of no such appointment, to her in fee. The settlement also contained a power for the trustees there named, at the request, and by the direction of the husband and wife, or the survivor, to sell or exchange the settled estates, and for that purpose, to revoke all and any of the uses contained in the settlement; and also a covenant by the husband for further assurance on his part, and that of his wife, and all persons claiming under him. In pursuance of this settlement, certain fines were levied. By deed dated March, 1807, reciting the settlement, and the fines levied in pursuance thereof, and the limitations therein contained, and further, that the wife was desirous of acquiring an absolute power of appointment over the manors, &c. comprised in the settlement, in the event of her surviving, or dying in the lifetime of her husband, and there being a general failure of issue of her body, inheritable to the manors, &c. under the settlement, the husband and wife covenanted to levy certain fines, sur conusance de droit come ceo, with proclamations, to J. G. and his heirs, of all the manors, &c. comprised in the settlement: which fines were to operate, and to be taken to operate first for corroborating the uses contained in the settlement antecedently to the limitations to the use of the wife in feesimple, and subject thereto to the use of such persons, &c. as the wife by will or deed might appoint. In pursuance of this latter deed, several fines come ceo were levied by the husband and wife: Held, that under these circumstances, these latter fines did not operate to extinguish, destroy, or suspend the right or power of the husband and wife, and the survivor of them, to request and direct a sale or exchange of the settled estates under the powers for that purpose contained in the settlement, so as to prevent an exercise of those powers by the trustees.

1822.

Earl of JERSEY and Others against DEANE.

being the settlement made after, but in pursuance of, articles entered into before the marriage of the Earl of Jersey with the Countess of Jersey, his wife, and by certain fines duly levied by the Earl of Jersey and his wife, certain hereditaments, the inheritance of the Countess of Jersey, were limited to the use of T. F. and John Lord B., their executors, &c. for ninetynine years, to commence from the 23d of May, 1804, but upon the trusts thereinafter mentioned; with remainder to the use of the Earl of Jersey and his assigns, for his life, without impeachment of waste, &c. ;, with remainder to the use of the Duke of Bedford &c., as trustees, to support contingent remainders; with remainder, in case the Earl of Jersey should die in the lifetime of the Countess of Jersey, leaving issue an eldest or only son, entitled to the said hereditaments, immediately expectant upon the decease of the Countess of Jersey, and who should, at the decease of the Earl of Jersey, have attained, or should, during the life of the Countess of Jersey, attain twenty-one, then to the intent that he, after attaining twenty-one, and during the joint lives of himself and the Countess of Jersey, should receive a certain yearly rent-charge therein mentioned, payable out of the said hereditaments, with usual powers of entry, &c., for better securing the due payment of the same; and subject thereto to the use of the Earl of Clarendon and Lord Lowther, their executors, &c. for the term of one thousand years, to commence from the decease of the Earl of Jersey, without impeachment of waste, upon certain trusts; with remainder to the use of the Countess of Jersey, and her assigns, for her life, without impeachment of waste, &c. ; with remainder to the use of the Duke of Bedford &c.,

as