But do the circumstances thus detailed, namely, Mrs. Ladd's application to extend the credit payments, her request to divide the property for sale, and her conversing with the trustee, Hooff, on the premises on the day of sale-do all these circumstances amount to fraud in bar of her equity?

We contend not.

Because fraud consists in the "suppressio veri or suggestio falsi."

And there is no suppression by Mrs. Ladd of the fact that she had restricted her power by her marriage settlement. On the contrary, it is plainly recited in the deed to Hooff, who knew it well, and his purchasers were equally bound to know the recitals in the deed to their vendor. See 2 Tucker's Com. 439, 442.

Finally, if we have succeeded in demonstrating that this married woman had no power to convey except modo et forma, than we deny that her fraud can confer such a power on her. For where a feme covert had no power to convey by anticipation, it was held that her fraud could not operate so as to give such a power. Jackson v. Hobhouse, 2 Merivale, 488.

Then, if the settlement is relied on as conferring a power to appoint away this real estate, we have shown

1st. That it does not authorize such sweeping deposition.

2d. That what it does authorize has not been formally appointed or attempted to be.

3d. That as against this feme covert, under all the cases and all the circumstances, equity would not cure the defective execution.

And if there was a resulting separate equitable estate in Mrs. Ladd, with no power to alienate it in any mode, we have shown, first, that the express power to appoint during coverture negatives all other powers; second, that in Virginia separate real estate can only be disposed of by deed, etc., with privy examination.

The next subject matter is the turnpike stock. We show that the bank holds 80 shares, ad mitted to be part of the settled stock. We have already shown that it is defectively appointed. And if so, there is no pretense of fraud here, as touching the real estate.

It is true the Virginia decisions say that a 23*] simple settlement *of personal estate to separate use involves the jus disponendi, but that means where no special mode of disposition is expressed. See 3 Rand. 377, 381, 392; 9 Leigh, 206, 207-221.

In such cases, all the authorities concur, that the forms are restraints. Inasmuch, then, as the bank holds the legal title charged with our equity in these shares, we have a right to a decree, devesting them of the tortious title

As Mrs. Ladd's title is but an equitable one, she must enforce her rights in chancery, as she has no remedy at law.

Part of the brief on behalf of the defendants was as follows:

The bill charges force and fraud--the undue exercise of marital power, etc., etc., as the inducements that forced the complainant, against her will, into the execution of the deed in trust to Hooff, subjecting a portion of her separate estate as collateral security, etc., etc.

All these charges are met and conclusively repelled in the answers of the defendants-and are so left without a particle of evidence to countenance them; and positively discredited by every circumstance in the case.

The complainant's case is then left to rest upon certain technical objections to the said deed in trust, for supposed departures from the limitations impose by the settlement on her, the complainant's own rights in her own separate estate.

The following objections to that instrument are insisted on:

Objection 1. Attestation defective, in not specifying the act of signing as one of the acts attested.

Answer 1. The attestation, coupled, as it ought to be, with the conclusion of the deed, stating its execution under the hands and seals of the parties, is a sufficient attestation to the signing.

Answer 2. No distinct attestation to the signature necessary.

Against the reason and authority of the adjudications which, within the last thirty-six years seem to have upheld the objection, contrary to all the precedent opinions, and to have overruled our answers to it, see Sugden on Powers, 6th ed. ch. 6, sec. 4, pp. 294-325, and the authorities there reviewed and criticised; *Pollock v. Glassell, 2 Grattan, Va. 440, [*24 and the authorities there cited and reviewed, etc., etc.; Langhorne v. Hobson, 4 Leigh, 224; Tod v. Baylor, Ib. 498; Parks v. Hewlett, 9 Leigh, 511; Hume v. Hord, 5 Grattan, 374; Lessee of Fosdick v. Risk, 15 Ohio, 84; Lord Mansfield's opinion in Wright v. Wakeford, reported in the Appendix, No. 6, to Sug. on Pow. ed. 1823.

Answer 3. Even if the marriage settlement directed the writing to be signed, and the signature to be distinctly attested, that direction is not restrictive, and in no sort avoids the deed.

1st. Because the words of the settlement, if they call for Mrs. Ladd's signature, and for the attestation of three witnesses to her signature, are merely directory, and do not necessarily exclude any other form of alienation competent to an ordinary proprietor and bargainer. 2. Because Mrs. Ladd was in the nature of

And we also have a right to have a decree for the unsold portion of the property, under the prayers for special and general relief, and to an injunction against a sale of that and a reconveyance in trust.

stricted to the mode of alienation or appointment directed in the settlement; the settlement not purporting to negative every other mode. 1 Fonbl. ch. 2, sec. 6, pp. 96-101, notes n, o, p, q, and the authorities there cited; Ewing v. Smith, 3 Desaussure, 417, and the authorities there cited and commented on; Jaques v. Meth

when we keep in view the previous purpose set forth in the deed-that of settling on the feme, and subjecting to her disposition by deed or will, the whole of her estate, real and personal? Certainly there is nothing in the term "interest" incompatible with the meaning of the terms "estate" or "property," for in an ordinary as well as in a technical acceptation, interest may imply both estate and property. But there is another illustration of this matter which would seem to put it beyond farther doubt, that the power of appointment in question cannot by any rational construction be restricted to interest understood as revenue or money, or to rents and profits eis nominibus. Let it be again remarked, that, by the preced ing part of the marriage contract, all the estate, real and personal, was settled to the feme, with power to appoint the whole, without exception, by deed or will. Then, after the words which it is insisted for the complainant restricted her power, we have, at the conclusion of the deed, these words: "and in default of such appointment or devise, then the estate and premises aforesaid to go to those who may be entitled thereto by legal distribution." Now, the construction which would restrict her power to interest, rents, and profits, would seem as if intended to make the fee or inheritance dependent upon the contingency of an appointment of these mere chattel interests by the feme; if she 30*] *fail to appoint these, which alone it is insisted she had power to appoint, then, as a condition or consequence, "the estate and premises aforesaid" to go to those who may be entitled thereto by distribution. Let it be supposed that, being thus restricted, she does appoint these chattel interests; when then becomes of the inheritance or fee? The feme cannot, according to the argument, control or appoint it either by deed or will; this, it is said, is beyond her power. Does it not in this aspect of the case descend, or become subject to distribution, precisely as it was to do as the condition of non-appointment? So that, whether she appoints or not, the fee or inheritance goes precisely the same way. This construction | renders the provisions of the marriage contract useless and unmeaning. It contemplates on the part of the wife an action wholly nugatory as to the ultimate disposition of the fee, which it places entirely beyond her control either by deed or by will, and leaves it to pass according to the law of inheritance whether she be active or quiescent. This confusion and obscurity in the construction of the contract is removed by taking the context-by connecting the first clear and positive declaration of its objects, viz., the settlement on the feme of all her real and personal estate, and the power in her to appoint the same by deed or will, with the con

of the settlement.

It remains next to be considered whether the mode of appointment prescribed or indicated by the marriage arriage cont contract, whether the power be construed in an extended or restricted sense, has been strictly or fairly and substantially complied with. On behalf of the appellant it is insisted that, in the deed of the 9th day of October, 1827, from John H. Ladd, the trustee in the marriage settlement, and Harriet V. Ladd, to John Hooff, as trustee for the Farmers' Bank of Alexandria, regarding that deed as an appointment by Mrs. Ladd, under a competent power, still in its execution there has been such a departure from the mode prescribed for the exercise of the power by Mrs. Ladd, as renders her act wholly inoperative and void. The marriage contract, after securing the property *settled to the use of the wife, pro- [*31 ceeds thus: "or to the use of such person or persons, and in such parts and proportions, as she, the said Harriet V. Nicoll, shall appoint from time to time, during the coverture, by any writing or writings under her hand and seal, attested by three credible witnesses." The deed to Hooff, it will be seen, after reciting that John H. Ladd, the trustee in the marriage contract, in execution of the trusts expressed and declared in the marriage contract, and for a pecuniary consideration, does grant, bargain, and sell to Hooff; and, after farther recital, that "the said Harriet V. Ladd, in execution of the power of appointment to her reserved in the settlement, does hereby direct and appoint the premises hereinbefore described to be held by the said John Hooff and his heirs on the uses and for the purposes and trusts before recited," concludes in the following language: "In witness whereof, the said John H. Lada, Harriet V. Ladd, and John Hooff, have hereunto set their hands and seals, the day and year first before written." Then, after the names and seals of the parties are written, in the usual place of attestation, these words: "Sealed and delivered in the presence of George C. Kring, John McCobb, Matthias Snyder, Charles Muncaster, Jonathan Field."

Upon this state of facts, it has been contended that the execution of the power was defective and null, inasmuch as the power could be executed only by an instrument under the hand and seal of the married woman, and that the attestation of the witnesses shows simply a sealing and delivery of the deed of appointment, and shows nothing in relation to the signing by the parties. Some objection was made in the argument, founded upon the relative position of the names of the attesting witnesses, as tending to produce uncertainty as to which of the parties the witnesses meant to testify; but this objection, whether or not under other

thereto, and witnessed by the four persons whose names appear thereon. Such being the state of facts, it may very properly be questioned whether a party admitting and averring the execution of an instrument, and impeaching only its fairness or its legal operation, ex

so far as the reasonings of the English bench should shed light upon the judicial mind of our country, ought to be cleared away. This effect, we think, should be produced by the arguments in the House of Lords of the assembled judges in the case of Burdett v. Spilsbury, reported in

to deny or question at the trial the existence or execution of the document against his own averment or admission. Such a proceeding would be a surprise in the court below; but it would be still more so if, after the trial, and without even an exception indorsed upon the document, it could be objected to before an appellate tribunal. There is no exception taken to the form or attestation of this deed of appointment found in the record before us. But was there not proof of the full execution of this power, inclusive of signing, according to approved legal intendment? One of the earliest cases, perhaps the earliest, going directly to sustain the exception here urged to the execution of the power, is that of Wright v. Wakeford, 17 Vesey, 454. In that case, as in the one before us, the contract creating the power directed the appointment to be made by writing or writings under hand and seal; and in that case as in this, the memorandum of attestation was in the words "sealed and delivered," omitting to assert in terms the signature by the maker. Lord Eldon forebore to decide whether this certificate or memorandum embraced the signing as well as the sealing and delivery of the instrument, and sent the case to the Common Pleas, who certified (three of the justices, Heath, Lawrence, and Chambre, concurring against the opinion of Mansfield, Ch. J.) that in their opinion the power had not been well pursued. After Wright v. Wakeford, followed the cases of Doe, ex dem. Mansfield, v. Peach, 2 Maule & Selwyn, 576, Wright v. Barlow, 3 Maule & Selwyn, 512, Doe, ex dem. Hotchkiss, v. Pearce, 6 Taunton, 402. These cases rest upon Wright v. Wakeford, and some, if not all of them, refer to it expressly as their foundation. But, even contemporaneously with the cases just mentioned, it will be perceived that the courts have in some instances sought to free themselves from these literal trammels of Wright v. Wakeford, as too narrow to comprise the principles of justice and common sense; for as nearly as 7 Taunton, 355, in the case of Moodie v. Reed, which was sent from the Chancery, the will was attested in this general phrase, "witness, etc.," by two witnesses. In the testimonium clause the testratrix says: "These bequests are signed by me." Gibbs, Ch. J., said that this was clearly a good attestation of the signing. Still later, it has been ruled in several cases where the power required a will signed and published in presence of three witnesses, that the attestation was good expressing the will to have been signed and delivered. The evident 33*] *disposition of the courts being to adopt the reason and substance of the transaction, they have, as matter of construction, determined that delivery was publication. See 4 Sim. 558; 5 Sim. 118.

But whatever doubt may heretofore have

powers are the subjects considered. The cases from Wright v. Wakeford down, involving any important principle, are reviewed, and these subjects placed upon the basis of common sense. It is true that the facts in the case of Burdett v. Spilsbury were not precisely those of Wright v. Wakeford, the attestation clause in the latter being special, and that in the former case not special; yet in the examination of the latter case, and of those which have followed and been rested upon it, their doctrines are discussed and by a majority of the judges disapproved, several of the judges who conceived themselves constrained to support Wright v. Wakeford, upon the maxim stare decisis, expressing their regret at the obligation supposed to be binding upon them, and declaring that, were the case res integra, they should certainly reject its doctrines. The extended views of the judges in Burdett v. Spilsbury cannot be given consistently with the limits of this opinion, yet some of their illustrations of the principles they maintain may properly be adverted to. And it will be perceived that the substance and meaning of those principles are comprised in the following positions:

Ist. That the terms and modes prescribed in settlements for the execution of powers should be followed in reason and substance, so as to insure the purposes and objects contemplated by such settlements, and so as to prevent them from being sacrificed to mere literal severity of construction.

2d. That the memorandum of attestation to a deed or will, whether that memorandum be general or special, is not conclusive as to the ceremony of the execution of the instrument to which such memorandum is annexed, but may be explained by the testimony of the witnesses themselves, or by reference to the testimonium clause of the instrument, as showing the facts and circumstances set forth in that clause, and which the witnesses were called on to attest.

*Thus in the case of Burdett v. Spils- [*34 bury, p. 392, Wightman, Justice, says: "The power requires that the instrument shall be signed, sealed, and published by the testatrix in the presence of three witnesses, and that they shall attest the instrument. No form of attestation would for the first thirty years have dispensed with the necessity of calling one of the subscribing witnesses, if any were alive, to prove that the formalities required by the power had been complied with; but after thirty years, the case would rest upon the presumption arising from the production of the instrument itself. In the present case, the instrument shows a general attestation of it by three witnesses, without any statement of the particular facts they attested: but they must be understood to have attested something; and to ascertain