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of such daughters having died under twenty-one, without issue, after her mother's death; and therefore the decree ought to have declared, that the appellant was so entitled.

As to the annuity given to Sir Henry Englefield by the codicil, it was said to be given as an additional sum of £100 a-year more, payable to him as mentioned in the will; and by the will, the annuities were directed to be paid by the trustees out of the real estates, with powers of distress and entry; and the testator thereby gave his personal estate to his daughter, if she should attain twenty-one, if not, then to Charles Smith for life, and after his death, to William Smith absolutely That the codicil giving this additional annuity was attested by two witnesses only, so that it was not a charge upon the real estates, for want of a due execution of the codicil according to the statute of frauds; and it was no charge upon the personal estate, because it was directed to be paid in like manner as the original annuity, which was payable out of the real estate only. That the personal estate produced about £2452 12s. 2d. the interest of which at £4 per cent. was not sufficient to pay the annuity; and therefore, if payable out of that, it must have sunk the capital: this would disappoint the additional provision which Mr. Carrington made for his only child; [498] and in case of her death, and of the death of Charles Smith leaving issue male, his provision for William Smith would also have been disappointed; and therefore, a construction of the codicil, to make this annuity a charge upon the personal estate, would defeat the plain intention of the testator.

As to the validity of Mrs. Holford's appointment, under the power in her marriage articles, it was contended, that the proper and only methods of enabling a feme covert to dispose of her inheritance by deed or will, or writing in nature of a will, op-rating as an appointment, were, either by a conveyance to uses or trusts before the marriage, reserving such power, or else by fine in which she and her husband join after the marriage, with a deed to lead the uses of it, reserving such power to her over the inheritance vested in the conusees. But unless one of these methods is taken, her will of real estate will be void, as an instrument or conveyance, and cannot bind her heirs. Marriage articles being entered into for valuable consideration, will bind the husband to do all proper acts for enabling his wife to make an effectual disposition of her real estate, notwithstanding the coverture; but when those acts have not been done, the heir of the wife will be entitled to take advantage of all defects in the will, or in the capacity of the testatrix, just as he would have been entitled to claim by descent, in case, after a power duly reserved to her over a use or a trust, she had not thought fit to make any appointment in execution of that power. In the present case, the power rested only upon articles between husband and wife, without any estate vested in trustees, out of which an appointment by virtue of the power was to enure; the issue of the second marriage, who were the devisees in the will, could not be aided as purchasers; for the power was given to enable the wife, as a feme sole, to dispose of her land of inheritance by deed or will, in such manner as she should direct; and therefore the issue of the second marriage were not more the objects of the power, than the issue of the first, or any stranger. Mrs. Holford might have appointed her estate, as against the husband and his heirs, to whomsoever she thought fit, the articles being made for valuable consideration, as against the husband, and those claiming under him: but as between her own heir at law, the son of her first marriage, and the daughters who were the issue of the second marriage, it was a question merely between volunteers; and consequently, such issue could claim no aid in equity to supply a defect in the capacity of the testatrix, as a married woman, to make her will, when such will must take effect as an appointment in execution of the power, or not at all; and the power in this case remained only in covenant between her and her husband, without depending upon any estate vested in other persons, out of which it could take effect.

And as to the question of cross remainders, it would be proper to consider the precise words of the will: these words were,

To the use of all and every the daughter and daughters of the body of the said Peter Holford, on the body of me the [499] said Constantia Holford to be begotten, and to the heirs of their body and bodies, lawfully issuing; such daughters, if more than one, to take as tenants in common, and not as joint tenants; and for default of such issue, to the use of the right heirs of me the said Constantia Holford for ever.

The intent of the will