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still an appointment to uses, deriving all its efficacy from the power contained in the original deed of settlement, to which it was a kind of appendix or supplement, and into which, in point of construction, it was to be in a manner ingrafted: so that this writing, though called a will, derived no force or efficacy from the statute of 32 Hen. VIII. enabling persons having lands to devise; but fetched all its validity from the original settlement, operating by way of use, as instruments of a like kind did before the statute of wills was made, And therefore when any persons claim under these appointments, they are said to be in, not by the will, but by the deed; as the devisee of a copyhold is in, not by the devise, but the surrender to the use of the will; which last instrument in this case requires therefore no witness at all. For it is a rule, that when an act imports in itself a necessity to work by way of appointment under a power, that rather than the act shall be deemed void or invalid, the benignity of the law is such, that though it refers not by any express reference to the power, yet it shall be construed to have its force and operation from that power, and shall thereby be made good; and this to prevent deliberate and solemn acts from being ineffectual. In the present case, the codicil must be a good charge upon the personal estate, unless the appellant could make out, that the words necessarily imply a charge on the real estate; but if this should be so, there was then an equal necessity that this codicilary writing should be construed as an ulterior appointment, by force of the power in the settlement; the will was the first appointment, that will expressly referred to the power, and was an appointment in pursuance and in exercise of it; the codicil expressly referred to the will, and was to be tacked to it, and coupled with it by construction; it was like a postscript to a letter, or an appendix to a book, and was no more than ingrafting on the same stock that the will had done; if it could not operate as a real devise, there was a necessity that it should operate, as the will itself was declared by the testator in express words to operate, by force of the power; which, it was remarkable, did not confine the appointment of new uses to a single instrument, but expressly mentioned writing or writings; foreseeing, that though the revocation must be by one instrument, the new uses might be well created by two or more.

On the part of the respondents Mr. Holford and his daughter it was said (E. Willes, C. Sayer), that Mrs. Holford, at the time of executing her marriage articles, was a widow and feme sole, and entitled, as one of the sisters and coheirs of Mr. Carrington, to the trust of the reversion in fee of an undivided moiety of his real estate, expectant on the death of her uncle William Smith, and on failure of his first and other sons, and the heirs male of their bodies; [503] and as this was a trust of a vested reversion, it was absolutely in the power of Mrs. Holford at that time, by proper conveyances, to charge, grant, alienate, incumber, or otherwise affect the same as she thought fit. It accordingly appeared, not only by the tenor and purport, but by the very words of the articles, that it was the intent and meaning of all the parties, and especially of Mrs. Holford, that such power over the premises should, notwithstanding her intended coverture, be preserved to her in the same manner, and as fully and amply as if she had continued a feme sole; not only to secure the income thereof for her own sole and separate use, exclusive of her intended husband, but in order that the same might be from time to time applied and disposed of, as she should by any deed or deeds executed in her life-time, or by her last will and testament duly made and published in the presence of three or more witnesses, direct or appoint, notwithstanding her coverture: the recital or introduction to the articles also shewed, that the premises in question were one of the principal objects which Mrs. Holford had in view, at the time of executing the articles; for it is therein particularly mentioned, that she had great expectations of a considerable accession of fortune from several relations; and the subsequent words proved, that the great accession of fortune so expected, was the remainder or reversion of the premises, on the death of her uncle William Smith without issue male; for in the introduction it was immediately afterwards mentioned, that it was agreed that all such real estates as should during the coverture descend upon or come to her, or to her intended husband in her right, by descent, or by virtue of any remainder or reversion, should be disposed of by her in manner before-mentioned. When, by the death of her uncle William Smith without, issue, which happened on the 13th of April 1758, Mrs. Holford became entitled in possession to her