
    Pollock & Wife v. Glassell.
    January Term, 1846,
    Richmond.
    (Absent Allen, J.)
    Marriage Settlement — Power of Alienation. — A marriage settlement gives a power to the wife to dispose of the settled estate by gift, or devise, under her hand and seal, attested by two or more witnesses. Held:
    1. Wills — Sealing—Scroll—Recognition of. — That a testamentary paper signed by the wife, with a scroll annexed to her name, and attested by the requisite number of witnesses, though the scroll is not recognized in the body of the instrument, is a valid will under the power.
    2. Same — Will Duly Executed Recognizes Defective Will — Effect.—That Such a paper duly executed, referring to, and recognizing another testamentary paper, previously executed according to the statute concerning wills, but not according to the power, will constitute the paper recognized, a valid testamentary paper.
    3. Same — Same—Incorporation of Defective Paper.— To give validity to the paper recognized, it is not necessary that it should be incorporated into the paper recognizing it.
    4. Same — Attestation Clause. — It is not necessary that the attestation clause shall state, that the paper was duly signed and sealed by the testatrix.
    *5. Same — Scroll—Parol Test¡mony. — Thai: parol testimony is admissible to shew that the scroll was put upon the paper, by the direction of the testatrix, as a seal.
    6. Same — Witness Adopting Signature Previously Made. — Though the name of the witness was put to the paper, not as a witness, hut for some other reason, yet if the testatrix afterwards requests the witness to attest the paper, and she adopts the signature already there, it is a valid attestation.
    7. Same — Assignment to Operate at Death of Assignor. — Quaere. Whether an assignment under hand and seal, absolute on its face, hut not delivered, and intended to operate only at the death of the assignor, may he valid as a testamentary paper?
    Margaret C. Lee, the widow of Charles Lee, deceased, and the mother of two children by that marriage, Robert H. Lee, and Elizabeth, afterwards the wife of A. D. Pollock, being the owner of property in her absolute right, as well as the owner of property as dowress of Charles Lee, and being about to be married to John Glassell, a deed of marriage settlement was executed by them dated the 27th June 1821. This deed recites, that it is agreed between them that Mrs. Lee shall retain her own property, and shall have no claim for dower or distribution out of the estate of Glassell, except such as shall be the proceeds of the joint property of the parties; that Mrs. Lee’s debts shall be paid out of her own estate ; and that John Glassell may sell any of her slaves for misconduct; and in such case, shall replace the slaves sold, by others of equal value, to be subject to the provisions of the settlement.
    The deed then conveyed the whole of Mrs. Lee’s property to William Bell, in trust for Mrs. Lee till the marriage, and from thenceforth to the use of the said John Glassell and Margaret C. during the cover-ture ; and if she shall survive the said John Glassell, then to her use forever, as of her former interest therein. And if the said Margaret C. shall wish to sell or dispose of any of her own property, or any part of the land to which she is entitled as her dower in the estate of her late husband Charles Lee, deceased, then to the use of such person or persons as she may sell or dispose of the ‘same to, notwithstanding her coverture, and to hold the purchase money thereof subject to her disposition and appropriation. But if the said marriage shall take effect, and the said John Glassell shall be the survivor, and the said Margaret C. shall have a child or children, then to the use of such child or children forever. But in case she shall make a will, then, from her death, to the use of such person or persons as shall become entitled thereto by the gift or devise of the said Margaret C. under her hand and seal, attested by two or more witnesses; which she is hereby empowered to make; and for the want of such appointment by the said Margaret C., then to the use of such person or persons as would have been entitled to the same if this marriage had not taken effect. ’ ’
    After this declaration of trusts, the deed contains covenants on the part of John Glassell, that he will not sell or otherwise dispose of the slaves of the said Margaret C., except for the purpose of paying her debts, without replacing other slaves of equal value; and that he will not claim any estate, right, title or interest, in any of the slaves or furniture of the said Margaret C. ; but that they shall go to the donee, devisee or other representative of the said Margaret C., as above expressed: “and that she may dispose of the same by deed or will, or writing purporting to be her deed or will, notwithstanding her cov-erture; or if she dies before the said John Glassell, and makes no disposition or appointment thereof, then her child or children equally, if she have any, or if she hath none, her brother and sister, or their representative^, according to the law of distribution, shall respectively be entitled to hold and enjoy all and every such slaves and other personal estate as aforesaid, in like manner as if such marriage had not happened. ’ ’
    There is then a covenant on the part of Mrs. Lee, restraining her from claiming any part of her intended husband’s estate; and the settlement concludes as follows: *“And it is expressly agreed by and between the said John Glas-seli and , Margaret C. Lee, that the furniture, including plate, now respectively held by each of them, shall be at the sole and absolute disposal of such one to whom it now belongs.”
    The marriage took place; and on the day of August 1828, there being one child, the issue of the marriage, Mrs. Glasseli made her will. The will purports to be in pursuance of the power reserved to her by the marriage settlement, and is executed in strict conformity to it; being executed under seal, and attested by two witnesses. This paper is referred to in the proceedings in the cause as the paper marked A. On the 10th of February 1840, there being a second child, the issue of the marriage, Mrs., Glasseli made a codicil to her will. This codicil, which is referred to as marked B, is executed in the manner prescribed by the act of assembly, being signed by the testatrix, and attested by two witnesses; but there is no seal annexed to her name.
    On the 10th of December 1841, her daughter Elizabeth Lee being then married to A. D. Pollock,.Mrs.. Glasseli executed the following paper: “Whereas I have promised Elizabeth Pollock, the wife of A. D. Pollock, to pay her the sum of one thousand dollars, and whereas by my marriage contract, power was reserved to me to dispose of my property by deed or will: Now, therefore, in pursuance of said power, and in consideration of said promise, I do hereby give, grant and assign to the said Elizabeth Pollock two bonds executed by John Glasseli on the 8th of October 1822, to William Bell for my use, one for 1000 dollars, and the other for 350 dollars, together with all equitable rights and interests I may have in and to the said bonds. Witness my hand and seal this 10th day of December 1841.
    Signed, Margaret C. Glasseli, [Seal.] Teste, Henry Shackleford,
    E. A. E. Shackleford.” '
    *On the back of this paper was endorsed, “Eor E. Pollock, to be delivered at my death.” This paper is marked C, and the two bonds referred to in it, are marked respectively, No. 1, and No. 2, and on each bond was endorsed, “This bond I have assigned to E. Pollock by deed of this date. 10 Dec. 1841.
    Margaret C. Glasseli.”
    ' It appeared by the testimony of Henry Shackleford, that the paper C, was prepared .for Mrs., Glasseli at her request as an absolute assignment of the bonds mentioned in it; and after she had signed it, she acknowledged the same to be her hand and seal, and delivered it as her act and deed; but there was no person present but the two witnesses; and when she had acknowledged the paper, the witness folded the papers together, placing the two bonds under the paper marked C; and at the request of Mrs. Glasseli, wrote the endorsement upon that paper; and the papers when completed, were retained by her. Mrs. Shack-leford also proved that Mrs. Glasseli acknowledged the signature and scroll at ■ the foot of the paper C, as her hand and seal, and that she delivered it as her act and deed, in the presence of the witness; that there was no person present but the witnesses; and that the paper was retained by Mrs. Glasseli. They were found in her possession, with the other testamentary papers, after her death.
    On the 11th of March 1843, Mrs. Glasseli executed another codicil to her will, marked D.This paper is signed by her, with a scroll preceding her name, but not recognized in the body of the instrument, and it is attested by but one witness.
    On the 7th of October 1843, Mrs. Glasseli executed another testamentary paper, marked E, signed by herself with a scroll annexed to her name, and the word “seal” written therein; but the seal is not recognized in the body of the instrument. This paper is attested by three subscribing witnesses, but there is no attestation clause, stating the mode of its execution. Shortly before the *execution of this paper, Robert E. Lee, the son of the testatrix, had died. After making some special bequests, the testatrix says: “In all other respects, I establish my will as already written, with the codicil thereto, so far as it relates to my children now living.” She then revokes a bequest, which is to be found in codicil B, in favour of her son.
    On the same day on which the paper E was executed, the following paper marked F, was writtenAt the request of Mrs. M. C. Glasseli, I wrote down what she expressed to be her wish respecting some of her property. To Mildred S. Glasseli she gives Suckey, and her children; with the exception of a boy named Ezekiel; which boy she gives to Thomas G. Pollock. She also loans to Mildred S. Glasseli, so long as she is unmarried, her carriage filly, Queen; after Mildred is married, she is to be given to Elizabeth G. Pollock, to have as her own property. She also wishes a colt that is called Mildred’s given to Thomas G. Pollock, and Mildred S. Glasseli to be paid a good price for the colt, out of her mother’s, Mildred C. Glassell’s money. To her son John E. Glasseli, she gives her servant Ben, and wishes him bound out to a trade for the benefit of John E. Glasseli; and her wish is, that her cousin Henry W. Ashton should see that he is well treated, and any money that can be made from Ben to be taken care of for John E. Glasseli. Elizabeth G. Pollock to have Winny or Mary as a gift' from her.
    Margaret C. Glasseli, [Seal.]
    Written by S. S. Ashton.
    Witness, Ann R. Ashton.
    October 7th, 1843.”
    In relation to this paper, it appeared that Mrs. Glasseli, who was then in very great distress, on account of her sudden death of her son; and was also very ill, and died four days after, verbally expressed to Miss S. S. * Ashton, her wishes as to the disposition of her property after her death; and lest Miss Ashton should forget them, she of her own accord, wrote the paper as a memorandum. At the foot of the paper she wrote the words ‘ ‘Written by S. S. Ashton for,” intending to add the name of Mrs. Glassell, if the latter should be unable to authenticate the paper by her own signature. When Miss Ashton mentioned it to Mrs. Glassell, the latter did write her name to it herself; and therefore when she was about to sign it, Miss Ash-ton struck out with a pen the word “for,” which at first followed her own name, and was intended to precede that of Mrs. Glas-sell if it had been written by Miss A. Mrs. Glassell requested Miss Ann R. Ashton to witness the paper, which she did; and then Mrs. G. requested Miss S. S. Ashton to witness it, who thought, and so told Mrs. G., that it was not necessary for her to sign the paper again, as her name was already then to it, in the manner before stated; and therefore Miss S. S. Ashton did not subscribe the paper again. Mrs. Glas-sell said there ought to be two witnesses and a scroll, whereupon Miss S. S. Ashton annexed the scroll to Mrs. Glassell’s signature.
    At the June term of the Circuit Superior Court for the county of Culpeper, John Glassell, the surviving husband of Margaret C. Glassell, delivered to the Court the papers A, B, D, E, and E; and the counsel for Pollock and wife delivered the paper C, with the two bonds assigned therebj^; and thereupon, the said John Glassell propounded the paper A, in its original form, as the last will and testament of Mrs. Glassell, and submitted to the Court to make such disposition of the other papers as the Court should think proper; and Pollock and wife propounded the residue of the said papers as codicils to the said will.
    It appeared from, the proofs in the cause, that since the execution of the paper A, Mrs. Glassell had made ^erasures and interlineations therein, by striking out some of the bequests and inserting others; but the will as it was originally, could be read.
    The only questions of controversy were, whether the papers B, D, E, and F, were executed in proper form by the testatrix; and whether the paper C was a testamentary paper. The Court below rejected all the papers propounded as codicils to the will, and admitted the paper A, in its original form, to probat, as the last will and testament of Margaret C. Glassell deceased ; whereupon John Glassell qualified as her administrator with the will annexed. Prom this judgment of the Court, Pollock and wife obtained an appeal to this Court.
    C. & G. N. Johnson, for the appellants,
    insisted that under the marriage settlement, Mrs. Glassell had the absolute property in the estate thereby conveyed. They went into a critical examination of the deed of settlement to prove that it gave to her the absolute power of disposition, which they insisted gave the property; and that being absolutely hers, and being personal estate, she was authorized to dispose of it in any manner authorized by law; and was not restricted to the mode prescribed in the settlement. Jaques v. Methodist Episcopal Church, 3 Johns. Ch. R. 77; S. C., 17 Johns. R. 548; Eee v. Bank of U. S., 9 Leigh 200; Erwin v. Parrer, 19 Ves. R. 86; Hales v. Margerum, 3 Ves. R. 299; Standen v. Standen, 2 Ves. jr. R. 589; Heatley v. Thomas, 15 Ves. E- 596.
    But if the Court shall be of opinion, that Mrs. Glassell did not have the absolute property in the estate embraced in the marriage settlement, and therefore the right to dispose of it by any legal mode of disposing of it becomes necessary to enquire whether the papers propounded for probat are executed in accordance with the power. We admit that the will is properly executed; and the only questions of controversy, therefore, refer to the papers propounded as codicils to the will. Of these the validity of the papers B and I) depends upon the question whether the paper E is executed according to the power. They are executed without a seal, and are therefore not in accordance with the power; but we say they are recognized in the paper E.
    The paper E has a seal, and is attested by a sufficient number of witnesses; but the seal is not recognized in the body of the instrument, and, therefore, it is said that the sealing is insufficient. We say that the scroll with the word seal written in it, having been put to the paper at the request of the testatrix, the paper is a sealed instrument, and in accordance with the power.
    At common law proof of the affixing the seal might be made by parol evidence. Parks v. Hewlett, 9 Eeigh 511. By the statute 1 Rev. Code, ch. 128, $ 94, p. 510, any instrument to which the person making it shall affix a scroll, is a sealed instrument. We insist that the intention with which the scroll is affixed may be proved by parol. It is true there have been cases in this Court in which it was held that a scroll not recognized in the body of the instrument was not a seal; but in these cases, there was no proof that the scroll was intended for a seal. In Parks v. Hewlett, Judge Parker reviews most of the cases which had been decided in this Court. He obviously meant to bring the rule back to the common law. In that case, the Court holds the scroll is a seal, because the paper is stated in the attestation clause to be sealed. But the attestation clause is no evidence; it is a mere memorandum of the facts which occurred, and to which the witnesses are to testify. We submit, therefore, that it has not been decided that the affixing the seal may not be proved by parol.
    But it is said there is a technical rule peculiar to instruments executed under a power, which requires that ail the facts necessary to a valid execution of the instrument must be stated in the attestation clause. The *cases in which such a rule was recognized were cases of special attestation clauses, where some of the facts required by the power were stated, and others were omitted. In such cases, the rule may have been adopted, in analogy to the cases, at one time a matter of discussion, where a witness to a will was called upon to prove the insanity of the testator. In this case the attestation is general; and the authorities do not therefore apply. But the rule is a departure from the common law. It has never been acted on here; and we submit that it is not wise to introduce such an anomaly in the rules of evidence. The law requires a witness to the execution of an instrument to put his name upon it. That is all he is required to do, either by the law, or the power.
    The paper E, being executed in accordance with the power, is a valid codicil to the will; and that paper recognizing the papers B and D, they too are valid. But if the paper E is properly executed, then the paper E is also valid. The proof that the scroll with the word seal written therein, was affixed to the paper by the direction of the testatrix, is clear and positive; and there are two subscribing witnesses; so that it strictly conforms to the power.
    The other papers offered, are the paper C, and the two bonds referred to in it. This paper is in the form of a deed; but it is well settled, that the form of the instrument is a matter of no importance. It is testamentary, because made, not to operate: inter vivos. The essential characteristic of a testamentary paper is, that it confers nothing during the life of the maker, and it is in his power to revoke it. In this case, though the assignment is in form a deed, and though purporting to be delivered, yet it was not in fact delivered, but was retained by the assignor during her life; and intended, and so endorsed, to be delivered at her death. So retaining it, she had the power to revoke it. Powell on Dev. p. 9 to 11, 21 Eaw Eibr. p. 6, note 1.
    *Eeigh, for the appellee,
    took a distinction between powers arising out of contract for value, and powers arising by will of gift; and he insisted, that as this was a power arising out of a contract between husband and wife before marriage, by which he released all his marital rights, it was not open to that liberality of construction which had been applied in some cases, to powers arising under gifts or wills; and, therefore, the authorities cited by the counsel for the appellants, were not applicable to the case. For this distinction, he referred to Lee v. Muggeridge, 1 Ves. & Bev. 117; Anderson v. Dawson, IS Ves. R. S32; and he then examined the marriage settlement, to shew that the wife had not thfe absolute estate in the property thereby conveyed; but that she had a limited estate, with a power of disposition; which must be exercised according to the ' power. Williamson v. Beckham, 8 Leigh 20.
    Assuming that it was a power which was vested in Mrs. Glassell by the marriage settlement, the question is, whether it has been exercised in the manner prescribed in the deed? It is admitted that the will is properly executed; and it is admitted farther, that the papers B and D are not properly executed; but it is insisted, they are recognized in the paper E; and that this paper is executed in conformity with the power. As to the paper D, as that is attested by but one witness, it is not a good will under the act of 1835-6; so that if recognized as contended, it cannot be a valid will. But the paper E itself is not executed according to the power, because it is not a sealed paper. There is the utmost conceivable doubt whether the witness says she was requested to put the seal to the paper by Mrs. Glassell. But if she. does say so, the testimony is not competent; as it is not stated in the attestation, to have been signed and sealed in the presence of the witnesses. In the execution of a power, every circumstance required by the power must be complied with: *and this must appear upon the face of the instrument. Allen v. Bradshaw, 6 Eng. Eccl. R. 283; Waterman v. Smith, 16 Cond. Eng. Ch. R. 629. In the first of these cases, the power required that the will should be published, and the attestation clause not stating that the will was published, it was held not to have been properly executed. In Waterman v. Smith, the power required the will to be signed, and it was signed, but the signing not having been stated in the attestation, the Court held that proof of the fact of signing was not admissible. There have been repeated adjudications, both at common law, and in chancery, in accordance with these cases; so that the rule is fully established. Sugd. on Powers 303 to 310.
    But if the proof was admissible, the paper E is upon its face defective, because the scroll is not recognized as a seal in the body of the instrument. In Parks v. Hewlett, 9 Leigh 511, though the sealing was not mentioned in the body of the instrument, the attestation clause stated that the deed was sealed. This was held to distinguish that case from the other cases decided in this Court, in which it had been held that a scroll, though with the word seal written within it, must be recognized, to make the instrument valid as a deed. Cromwell v. Tate’s ex’or, 7 Leigh 301. There is nothing on the face of the paper E, either in the body of it, or in the attestation, which can be construed into a recognition of the scroll as a seal; and it must therefore be governed by these cases.
    Every thing said upon paper S applies with equal force to the paper F. The scroll is not recognized in the body of the instrument; and the attestation clause does not state that the will was signed and sealed.
    The paper C was clearly not intended to operate as a testamentary paper, but as a deed. Not only the form of the paper, but the proofs are conclusive on that subject; and the paper not having been delivered, it is therefore inoperative.
    
      
      He was. interested in a question involved in this case.
    
    
      
      Sealed Instruments — Recognition in Body. — The principal case is cited in Bradley Salt Co. v. Norfolk, etc., Co., 95 Va. 468, 28 S. E. Rep. 567. See the principal case cited and distinguished in Clegg v. Lemessurier, 15 Gratt. 115, 117, and Keller v. McHuffman, 15 W. Va. 78, 79.
    
    
      
      Wills — Incorporation of Defective Paper. — Nor the proposition in the third headnote the principal case is cited in American Surety Co. v. Worcester Cycle Mfg. Co., 100 Fed. Rep. 43.
    
    
      
       Same — Evidence Aliunde to Show That Scroll Was Intended as Seal. — The principal case is cited in Clegg v. Lemessurier, 15 Gratt. 115, 117, and Keller v. McHuffman, 15 W. Va. 78, 79.
    
    
      
       Same — Witness Adopting Signature Previously Made. — For the statement- in the sixth headnote the principal case is cited in Sturdivant v. Birchett, 10 Gratt. 83, 86, 87, 94, 95.
      Same — Same—Principal Case Distinguished. — Pollock v. Glassell, 2 Gratt. 439, is distinguished from Peake v. Jenkins, 80 Va. 293, 297, in that, though there the name of the witness was put to the paper, not as a witness, but for some other purpose, yet the testatrix requested the witness to alter the paper, and- the witness adopted her signature already there; whilst in Peake v. Jenkins, 80 Va. 293, the witness signed as amanuensis, and was not requested to attest the paper.
      Same — Witnesses Signing before Testator. — The principal case is cited in Parramore v. Taylor, 11 Gratt. 246, for the proposition that the subscription by witnesses to a will before the signing by the testator is valid. See also, Sturdivant v. Birchett, 10 Gratt. 67.
      In Pollock v. Glassell, 2 Gratt. 439, the name of the first witness was signed diverso intuituo, and whether in the presence of the testator or not, does not appear ; though it was certainly not signed at her request, and was signed before the name of the testator was signed.
      Acknowledgment by Testator — Attestation. — In Parramore v. Taylor, 11 Gratt. 214. it is said : '“The words in the new law authorizing the will to he acknowledged by the testator in the presence of the witnesses, were not in the old law, hut they only embodied the long settled construction of that law. The words ‘hut no form of attestation shall be necessary,’ in the new law, effected no change ; no form of attestation being necessary under the old law. Pollock v. Glassell, 2 Gratt. 439.” The principal case is cited in Green v. Crain, 13 Gratt. 259.
      Probate Court — Proof of Will — Number of Witnesses. —Although in a court of probate it is necessary to examine all the attesting witnesses to a will, or the number required by law, if to be had, it is not necessary or indispensable that the material facts should be proved by more than one of the subscribing witnesses. Any one of the subscribing witnesses may prove the due execution of the will and its due attestation by himself and the others, and if his testimony be satisfactory, it is sufficient. For this proposition the principal case is cited in Johnson v. Dunn, 6 Gratt. 627; Cheatham v. Hatcher, 30 Gratt. 60; Lamberts v. Cooper, 29 Gratt. 68. See foot-note to Cheatham v. Hatcher, 30 Gratt. 56.
      Testamentary Paper — Death of Maker. — In Roberts v. Coleman, 37 W. Va. 143, 16 S. E. Rep. 482, it was held, citing the principal case, that an instrument transferring property intended to operate only after the death of its maker is testamentary in character, and cannot operate as an instrument inter vivos. The principal case is cited for this point in Cann v. Cann, 40 W. Va. 138, 20 S. E. Rep. 917, and 4 Va. Law Reg. 778. See also, the principal case cited in McBride v. McBride, 26 Gratt. 481, and footnote to Hocker v. Hocker, 4 Gratt. 278.
      In Lauck v. Logan, 45 W. Va. 251, 31 S. E. Rep. 987, the following language of Junsis Baldwin in the principal case is quoted: “The very reason which prevents this assignment from taking effect as a deed requires that it should be treated as a will. A deed is an instrument which must operate inter' vivos; and here the instrument cannot operate in that way, it having no legal effect till the death of the party by whom it was executed.”
    
   *BALDWIN, J.

In this case, the testamentary powers of Mrs. Glassell, the testatrix, are derived from the deed of settlement made between her and her husband shortly before their intermarriage. That deed, though apparently designed as a formal instrument, is unskilfully, obscurely and confusedly drawn. The general intent, however, of the parties cannot be mistaken. Their object was to secure, to each respectively, complete title and dominion over their respective estates, real and personal; so that on the one hand the wife should acquire no rights of dower or distribution in that of the husband, and on the other, that he should acquire no title by curtesy or otherwise in that of the wife. And so far as concerns right and title, this general purpose was adequately provided for. But in regard to the profits of the two estates which should accrue during the coverture, the separation of interests was not unqualified. The husband was to have the pernency of the profits of both, but subject, so far as regards the wife’s, to be terminated at any moment by the exercise on her part of her powers of alienation. That she had complete powers of alienation which she could exercise during coverture, by deed or will, at her election, is also unquestionable; but difficulties occur as to the formalities that were to be observed in the exercise of those powers.

In the first place, it has been much debated at the bar, whether in the exercise of the power of appointment by will, it was sufficient, under the circumstances, for the wife to observe those formalities which the law requires in the case of a feme sole, even upon the supposition that the cumulative formality of a seal, or scroll by way of seal, was contemplated by the deed of settlement.

In the next place, the question arises, whether upon the true construction of the various details of the marriage contract, (in some respects seemingly incongruous,) the intention was to tie the wife down in an appointment *by will, to the cumulative formality of a seal, according to the language used in one of the clauses of the settlement, or whether that language is to be referred to a misapprehension of the draftsman in regard to the formalities required by law in relation to wills generally.

And, upon the hypothesis that the deed of settlement requires an appointment by will to be under seal, then the further question occurs in respect to some of the testamentary papers propounded, whether that requisition of the power has been complied with.

Of these questions, I shall consider the last only, my views of that rendering it unnecessary to express an opinion upon the first and second.

And here we must first ascertain the precise state of the question. It is not in regard to any one of these papers, whether it is a sealed instrument, with a view to its legal effects and consequences as such. The law does not require a will to be sealed; and it has precisely the same force and effect without as with a seal. The true question is, whether in conformity with the power of appointment the testatrix did affix her seal to the paper, and that is a question of evidence.

Whether a paper be in law a sealed instrument or not, is a question applicable only to contracts. If it has a seal, then it is a deed or specialty ; if not, it is a simple contract only: and that is a question of law to be determined by inspection of the instrument. But though the distinctive character of the instrument is to be determined by its intrinsic evidence, the question is still open whether it be the deed of the party, and that must be decided upon evidence aliunde. If by a plea of non est factum, or other proper denial, the fact that the paper was sealed by the party be put in issue, then it must be proved by competent and satisfactory testimony.

In contracts, the presence or want of a seal makes a wide difference in the general character of the instrument, *and its legal effects and consequences. A seal is essential in the conveyance of the title to real estate — it excludes the bar of the statute of limitations — it is indispensable to bind the heirs of the party — it gives a priority in the administration of assets, and in various respects it affects the rules of evidence and the forms of action and pleading. But in a testamentary paper, it has no bearing whatever upon the legal character or operation of the instrument: no solemnity of sealing could make it a specialty; and the act of sealing can amount to nothing more than the performance of a condition.

By the common law a deed is good though no mention of the seal be made in the instrument. In Virginia, by long usage which has received the sanction of a statute, a scroll used by waj of seal has the same force and effect as a seal. The decisions of this Court have however required that the substitution of the scroll for a seal shall be recognized upon the face of the instrument; but they were all in cases of contract, where the question was whether the instrument was a specialty or simple contract. And in no case has it yet been held, that, in the absence of such recognition, evidence is inadmissible to prove that in fact the scroll was affixed to the instrument, with intent that it should stand in place of a seal. There are some strong considerations of policy and convenience to recommend such exclusion, as a general rule, in actions founded upon contract; but there can be none applicable to a case like the present.

Here the question occurs before a Court of Probat — whose province it is to examine the subscribing witnesses, and if their testimony be satisfactory, to establish and perpetuate the due execution of the instrument. Upon what principle or authority are the subscribing' witnesses to be estopped, because of some informality in the paper, ■from proving the fact that it was sealed by the testator, or what is the same thing that she adopted a scroll affixed to it by way of seal? In the much ^stronger case of a deed, there could, I conceive, be no such estoppel in a Court of Probat. Let us suppose the case of a deed, offered as evidence in an action at common law, without other proof of its execution that the order of a Court of Probat, stating that it was there proved by the subscribing witnesses to have been signed, sealed and delivered by the grantor. It is possible that this proof would be rejected on the ground that the scroll had not been recognized in the body or attestation of the instrument? The case supposed is, in principle, that of Parks v. Hewlett, 9 Leigh 51-1. In that case, it is true, the clause of attestation stated that the instrument, a deed of emancipation, was signed, sealed and acknowledged in the presence of the subscribing witnesses; but on the other hand the probat order did not state the particulars of the proof, but merely that It was proved by the subscribing witnesses, and ordered to be recorded: and it was therefore necessary to resort to the special attestation, as presumptive evidence, that the subscribing witnesses did prove before the Court of Probat the act of sealing. But suppose the attestation had been general, and the probat order special, the former merely shewing who were the subscribing witnesses, and the latter, that they proved to the Probat Court the signing, sealing and acknowledgment. Would not that have been a stronger case than the one decided, inasmuch as the evidence of what was proved before the Probat Court would have been express, instead of presumptive?

It seems to me that the supposed estoppel is without foundation: and I will now briefly notice the other legal objections that have been taken to some of the papers propounded.

The document' marked C, propounded as one of the codicils, is a paper executed by Mrs. Glassell, reciting that by her marriage contract, power was reserved to her to dispose of her property by deed or will, and assigning *10 her daughter, Mrs. Pollock, two obligations for the payment of money, which had been executed to her by her husband Mr. Glassell. These obligations are exhibited with the assignment, and identified bj a memorandum on each signed by Mrs. Glassell. The due execution of the assignment is fully proved by the subscribing witnesses; and it is liable to no objection whatever, unless it be that it does not appear upon its face to be a testamentary paper, but on the contrary is in all respects in the form of a deed. It is proved, however, that the as-signee was not present when the paper was executed, and that it was never delivered to her; but on the contrary was retained by Mrs. Glassell, in her own possession, with the intent declared by her at the time of its execution, that it was not to be delivered till her death; and an unsigned memorandum to that effect endorsed upon the instrument, by one of the subscribing witnesses at her request.

There is nothing that requires less formality than the body of a will or testament. If it be duly signed, attested and published, it may assume almost any form, provided it be intended by the party to take effect after his death. Thus deeds,, bonds, agreements, assignments, &c., have been established as testamentary. Nor is it necessary that the testator should intend to perform, or be aware that he has performed, a testamentary act. Though it be meant to operate as a settlement, or a deed of gift, or a bond, and not intended to be a will or other testamentary paper, but an instrument of a different shape, yet if it cannot operate in the latter, it may nevertheless in the former character. Masterman v. Maberly, 4 Eng. Eccl. R. 103; Pow. on Dev. 8, 9, 10. It is therefore well settled that the form of a paper does not affect its title to probat, provided it be the intention of the deceased that it should operate after his death.

It is contended, however, that this intent must appear upon the face of the instrument, and can never be proved *by parol. This would perhaps be true if it were a naked question of intent: but it is something more. The true question is whether the deceased has done a testamentary act; and that involves in this case, not merely the terms, but also the perfect and appropriate execution of the instrument; and the latter is the proper subject of parol evidence. The act was done under a power of appointment in a marriage settlement, which authorized the feme to dispose of her property either by deed or will; but requiring the instrument in the latter case, to be under her hand and seal and attested by two witnesses. The appointment recites the power, and has been made in strict'.conformity with it, being duly signed, sealed and attested; and here, in a Court of Probat, the matter for decision is, whether the instrument is to be treated as a deed or a will, (its effect being precisely the same in either case;) and that, I think, is to be determined by the fact whether it was substantially, though not in form, delivered as a deed or published as a will; a fact dependent in this case exclusively upon the testimony of the subscribing witnesses.

Delivery is essential to the perfection of a deed, and it lies in parol: though signed and sealed, a deed is not effectual until delivered. The delivery may be actual, as by manual tradition to the grantee, or to another for his use; or it may be constructive,’ as where it is placed within the power and control of the grantee. It may be proved by evidence express, or it may be inferred from circumstances. It may be inferred from the solemnities of signing, sealing, acknowledgment and attestation, though the custody of the instrument be retained by the grantor; but the inference is presumptive and prima facie, and may be repelled by proofs of a contrary intent. It has never, I believe, been inferred in the teeth of a positive declaration by the grantor, at the time of the transaction, to the contrary.

*Here the grantee was not present, nor in any wise participating in the transaction; and there was no valuable consideration. The instrument was not only retaind by the donor, but there was an express direction endorsed upon it by her request, that it should be delivered at her death. Can it be doubted that she retained complete power and dominion over it, and might have destroyed or revoked it at any time during her life? It was, therefore, not perfected as a deed, but ambulatory and revocable until her death ; at which time, and not before, it was to take effect. This gave it a testamentary character, however uncons'cious the testatrix and others may have been that she had performed a testamentary act. It was testamentary in substance, though not in form, and the solemnities employed operated not as delivery, but as a publication.

The very reason which prevents this assignment from taking effect as a deed, requires that it should be treated as a will. A deed is an instrument which must operate inter vivos; and here the instrument cannot operate in that way, it having no legal effect till the death of the party by whom it was executed. This was the intent of the transaction, and therein it conforms to the power conferred by the marriage settlement, which contemplated that an appointment by deed should take effect during the coverture, and put an end at once to the marital rights of the husband, whereas, if by will, that it should not be effectual until the determination of the coverture by the death of the feme. The true question is as to the essential nature of the act, and that being testamentar}' it must be made to operate accordingly. To hold "otherwise would be to decide that the substance must give way to the form of the transaction, which is against the well established doctrine.

I do not perceive any force in the objection, that the endorsement made by the direction of the decedent is not to be considered a part of the instrument. Though *no part of the instrument, it was a part of the transaction, and bears upon the question whether the act was inter vivos or testamentary. Neither the delivery of a deed nor the publication of a will, is a part of the instrument: they both lie in parol, and yet are legitimate and important matters in the proof of its execution, to be ascertained by the attending acts and declarations. If in the present case the decedent had acknowledged the instrument to be her will, can it be doubted, notwithstanding its form, that it would have been testamentar}'? How then can its acknowledgment as a deed, with a direction defeating its delivery as such, and postponing its effect until her death, produce a different result?

There is nothing in our statutes concerning the execution of wills that militates against this view of the subject. The revised act of 1819, 1 Rev. Code, p. 375, regulating devises of real estate, (amended by the act of February 1823, Supp. R. C., p. 214,) and the act of 1835, Sess. Acts 1834-5, p. 43, placing bequests of personal property upon the same footing, require the will to be in writing, and signed by the testator, or by some other person in his presence and by his direction, and moreover, if not wholly written by himself, to be attested by two or more credible witnesses subscribing their names in his presence: but they do not prescribe any thing in regard to the form of the instrument; nor do the English statutes of 32 Hen. 8, ch. 1, and 29 Car. 2, ch. 3, the provisions of which we have substantially adopted. In the construction of the English statutes, it has never been held that the testamentary character of the instrument must, of necessity, appear upon its face.

On the contrary, in Greene v. Froud, 3 Keb. 310; S. C. 1 Mod. 117, which was an action of ejectment, parol testimony was admitted to give to a deed the effect of a will. The case is thus stated in Pow. on Dev. p. 9,10. The plaintiff’s title was by the will of F, *which was entitled “Articles of Agreement,” and began thus, “It is agreed between the said Nicholas and Walter, that Nicholas being sick in body, gives,” &c., in consideration whereof, the said Walter promised to pay several legacies, and the conclusion was, “In witness whereof, the parties have interchangeably set their hands and seals.” And this was delivered as an act and deed. The question was whether this instrument was revocable, which depended on its being considered in law as a will or as a deed; and it was contended that it was the latter species of conveyance, being delivered as such: but it was held per curiam that there being directions given to make a will, and a person sent for to that end and purpose, this was a good will. This decision, it is true, was prior to the statute of 29 Car. but subsequent to that of 32 Hen. 8, which correspond in requiring the will to be in writing, the latter superadding the solemnities of signing and attestation. If the former does not require the testamentary character of the instrument to appear upon its face, neither does the latter.

The case relied on for the appellee of Glynn v. Oglander, 4 Eng. Eccl. R. 179, is not like this in any of its features. There, Sir John Nicholl said, in his opinion, “the paper propounded is in the form of a letter to a friend, the writer wishing to do something for two families who are there mentioned. The instrument is hardly intelligible for that purpose ; but independent of that circumstance, the whole history and extrinsic evidence as laid in the plea shew that it was not a testamentary act, but a sale of stock for some immediate purpose, and to take place inter vivos.” His subsequent expression that “the character of the paper must depend on the paper itself,” has reference not to the inadmissibility, but the inadequacy of the parol proofs; which he says, though full and detailed, “were only explanatory of the objects and- amount of the intended ^bounty;” and he adds, that “the whole tenor of the conversations and explanations is, that the benefit was intended as a present gift.”

The learned Judge hardly intended, X presume, to overrule his previous decision in Masterman v. Maberly, above cited. There, unexecuted bonds, in connection with the unexecuted draft of a will, (of both which execution was prevented by death,) were, according to the rules of the Ecclesiastical Courts, admitted to probat as testamentary, though neither had reference to the other; it being proved by the parol evidence that the bonds, though in terms inter vivos, were intended in lieu of certain ■legacies, intentionally omitted in the draft of the will.

I do not mean, however, to intimate any opinion as to the admissibility at large of parol evidence, for the purpose of impressing a testamentary character upon a formal deed. In the present case, my opinion is founded upon the special circumstances, established by the unquestionably legitimate probat evidence; and indicating clearly to my mind a testamentary and revocable act. X have the less hesitation in coming to this conclusion because it can tend to no injustice or injurious precedent. Whereas if we refuse the probat of its paper on the ground that it is not testamentary, it must lead to a renewed litigation in a different forum, upon the question of its perfection as a deed; and if there rejected for want of delivery, it must fall to the ground between the two jurisdictions: and so the manifest intent of both the donor and donee of the power will be defeated upon objections foreign to the merits. Such a result would be a mockery of justice, and a sacrifice of the substance for the shadow.

There is no weight, it seems to me, in the argument, that the direction of the decedent endorsed upon the instrument, is proved by the testimon3 of only one of the subscribing witnesses. The statutes do not prescribe *the number of witnesses by whom a will shall be proved, but the number by whom it shall be attested. Any one of the subscribing witnesses may prove the due execution of the will, and its due attestation by himself and the others; and if his testimony be satisfactory it is sufficient. Pow. on Dev. 637-8; Lougford v. Eyre, 1 P. Wms. 741; 3 Stark, on Ev. pt. 4, p. 1692. Whether all the attesting witnesses, or at least the number required by law, must be examined is a different question. In art action at law where the case demands proof of the execution of the will, it is sufficient to call any one of the subscribing witnesses, who on production of the will can swear to its execution by the testator and the subscription by the witnesses in his presence. It is only where the witnesses have signed separately, so that one can only prove his own act, that they must all be called. But in the Court of Chancery, or upon an issue out of that Court, the rule is to require the examination of all the subscribing witnesses, if to be had. 3 Stark. Ev. ut. sup.; Pow. on Dev. 643; and the same rule governs a Court of Probat. In none of these tribunals, however, is it indispensably necessary that the material facts should be proved by more than one of the subscribing witnesses. If this were otherwise, then the proof of a duly attested will might be defeated by the death or forgetfulness, or perjury of some of the witnesses. Upon this doctrine, most of the cases are stated in Pow. on Dev. p. 637-8; some of whch I will briefly notice.

In Eongford v. Eyre, above cited, it was held that one witness is sufficient to prove what the rest have attested, for the statute does not direct the will to be proved by three credible witnesses.

Dayrell v. Glasscock, Skinner’s R. 413; S. C. Ca. Temp. Holt 742, shews that it is not necessary that all the witnesses should prove the fact attested; for it was ruled per Holt, Ch. J., at a trial at bar, that if there were three subscribing witnesses to a will, this was sufficient *within the statute of frauds and perjuries, though upon the trial one of them would not swear that he saw the testator seal and publish his will; for otherwise it would be in the power of a third person to defeat the will of the deceased; and, therefore, if it was proved to be his hand, and that he set it as a witness to the will, his lordship held that sufficient.

Hudson’s Case, Skinner’s R. 79, was a trial at bar upon a devise, where on one side two of the witnesses swore that the devisor did not publish the instrument as his will, but that another guided his hand, and that the testator made his mark, and was incapable of saying, any thing. But their testimony was discredited, and the will established.

In the last mentioned case, Pemberton, C. J., cited Digges’s Case, where a scrivener wro'-e the will, and two other persons with him were witnesses: the scrivener swore that the testator was compos, and the two others swore that he was non compos. But the verdict found the will a good will, and the two witnesses were committed to the Fleet.

So far from one witness being insufficient, if he proves satisfactorily the material facts, including the attestation of the rest, a will may beestablished against the evidence of all the subscribing witnesses. In Lowe v. Joliffe, 1 Wm. Black. R. 365, which was an issue devisavit vel non out of chancery, three subscribing witnesses to the testator’s will, and two to a codicil, and a dozen servants to the testator, swore that he was utterly incapable at the time of making' the supposed will or codicil, and at any intermediate time, of making a will or transacting any other business. To encounter which evidence, the counsel for the devisee examined several nobility and gentry of the county, who were with the devisor the day the devise was made, two physicians who occasionally attended him, and several other material witnesses; who all strongly deposed to the sanity *of the testator. And the will and codicil were established against the testimony of the subscribing witnesses.

Let us next look to the paper marked F, dated the 7th of October 1843, and propounded as a codicil, the attestation of which is objected to as defective. In the usual place for the names of subscribing witnesses, we find those of two persons, one below the other: the first put thus, “Written by S. S. Ashton:” the second thus, “Witness Ann R. Ashton.” It is urged, as I understand the objection, that this cannot be treated as an attestation by S. S. Ashton; or at least that it must be considered a special attestation, confined to the fact that the paper was written by her. She has been examined as a witness, and it appears from her testimony that she wrote the paper, and at the foot of it the words, “written by S. S. Ashton for,” intending to add the name of the testatrix, if the latter should be unable to authenticate the paper by her own signature; and that when this was mentioned to the testatrix, she did sign her name to it herself; and when about to do so, the witness struck out with a pen the word “for,” which at first followed her own name, and was intended to precede that of the testatrix, if it were found necessary that the latter should be written by the witness. The testatrix requested Ann R. Ashton to witness the paper, which she accordingly did; and then also requested S. S. Ashton to do so, but she thought and told the deceased that it was not necessary for her to sign it again, as her name was already there in the manner above stated.

Our statute of wills in relation to real estates, 1 Rev. Code, p. 37S; Sup. Rev. Code, p. 214, conforming substantially'to the English statute of frauds, 29 Car. 2, c. 3, $ 5, requires the will (if not wholly written by the deceased), to “be attested by two or more credible witnesses, subscribing their names in his or her presence;” and now, by our act of 1835, Sess Acts 1834-5, p. 43, *wills of personalty are placed in this and other respects upon the same footing as wills of realty.

It will be seen that the statute requires the will to be attested by witnesses, but does not prescribe what, nor that any facts shall be stated in their attestation. I think it plain that the Legislature meant nothing more than that the instrument itself should be attested, in order to identify the witnesses, and designate who are to prove its due execution. The object was not to obtain from the witnesses a certificate of the essential facts of the transaction, but to provide the means of proving them by persons entitled to confidence, and selected for the purpose. The subscription of their names by the witnesses denotes that they were present at, and prepared to prove, the due execution of the instrument so attested, and nothing more. The attestation is the act of the witnesses, and it was not intended to confide to them the duty of stamping their testimony upon the paper, which could avail nothing as evidence, however perfect, and which ought to occasion no estoppel, however imperfect. This view of the statutory provision is in effect sustained by the English decisions.

That the subscription of the witnesses be made in the presence of the testator, is, by the statute, indispensable to the validity of the will; and, therefore, if the attestation ought to state the essential facts of the transaction, it would be fatally defective if that circumstance were omitted. And yet it has been held by the English Courts, in several cases, that though the fact of the subscription of the witnesses in the presence of the testator be omitted in the attestation, it does not affect the validity of the will; for in those cases the witnesses being dead and their hands proved, it was admitted as evidence to the jury oil a compliance with all the circumstances. Hands v. James, 2 Comyn’s R. 531; Croft v. Pawlet, 2 Stra. 1109; Brice v. Smith, Willes’ R. 1. So, too, it has been held that the subscription of the *witnesses to an attestation which only contains the words “sealed and delivered by,” &c. is sufficient; Trimmer v. Jackson, 4 Burnes’ Ecc. L. 130, though sealing and delivery are wholly immaterial to the validity of a will. Now if a special attestation of the facts omitting an essential- circumstance will do, it follows that a general attestation omitting them all is enough.

I think it clear that the subscription of the witnesses is substantially the attestation contemplated by the statute; and it is sufficient if the purpose be indicated by the briefest memorandum, or merely by a fair presumption arising from the local position of their signatures upon the paper: and that whether a memorandum of attestation be general or special, it may be denied or contradicted by the subscribing witnesses, in the whole or in part, and of course is open to explanation if in any wise ambiguous.

I cannot doubt, therefore, that the attestation by Hiss S. S. Ashton of the paper F, is sufficient, under the statute. It is not to be presumed that she placed her name there merely to attest the circumstance that the paper was written by her; a fact utterly insignificant in respect to the legal authentication of the instrument. Her subscription alone was a sufficient attestation, and the memorandum does not disprove it was so intended. At most, it can only call for explanation, and that given by her testimony is completely satisfactory.

But the question is not merely whether the attestation be sufficient under the statute ; inasmuch as it must conform to the power which authorized the testamentary appointment. If, however, the attestation required by the power be the same with that required by the Legislature, there is no reason that I can perceive, why the rules applicable to both should not be identical. If a power merely authorizes an appointment by will, and is silent in regard to attestation, the case must of course be governed by the general rule of law upon the subject. *And so where the power requires an attestation, but indicates none different from that contemplated by the statute, what reason can there be for exacting a greater degree of formality in the one case than in the other? To do so is to make a distinction without a difference, in defiance, it seems to me, of common sense and practical convenience. And yet this is what the English Courts have done, by a course of adjudication commencing in the year 1812, and continued down to the present time.

These English decisions appear to be founded on the idea, that when the grantor of a power of appointment designates the instrument to be employed, and how it is to be executed, and requires that it be attested by witnesses, he does not contemplate a general attestation of the execution of the instrument, but a special attestation of the prescribed formalities.

Thus where a power was required to be executed with the consent of certain persons, testified by any writing under their hands and seals, attested by two or more credible witnesses; and it was executed accordingly ; but the attestation contained the words “sealed and delivered” only; it was certified to the Lord Chancellor by the Court of Common Pleas, against the opinion of Lord Chief Justice Mansfield, that the power was badly executed. Wright v. Wakeford, 17 Ves. R. 454; 4 Taunt. R. 213.

That case was followed by Doe v. Peach, 2 Maule & Selw. S76, where a power to two persons was required to be executed by any deed or writing, under both their hands and seals, to be by them duly executed in the presence of, and to be attested by two or more credible witnesses. A deed exercising the power was in fact so executed; but the attestation contained the words “sealed and delivered” only, omitting the word signed. And the Court of King’s Bench held that the power was badly executed ; though the body of the deed itself *stated expressly, that it was “under the hands and seals of both the donees, attested by, and duly executed in the presence of, the two credible witnesses whose names are thereupon endorsed as credible witnesses thereto.”

Then came the cases of Wright v. Barlow, 3 Maule & Selw. 512; and Moodie v. Reid, 7 Taunt. R. 355; 1 Madd. R. 516; the former of a deed, and the latter of a will, to the like effect.

These decisions are commented on by Mr. Sugden in his valuable work on Powers, and demonstrated to be unsound in principle, and irreconcilable with the adjudications upon the statute of frauds. Sugd. on Pow. 317-331. He states that the alarm which they occasioned in the public mind led to the passage of the act of Parliament, 54 Geo. 3, ch. 168; but that act is merely retrospective, and has no efleet upon subsequent cases.

Since that statute, the Courts have gone on in the same line of adjudication, in cases not embraced by it, as before; and the decisions upon the execution of powers have gone this length, that if the grant of a power requires it to be exercised by a writing under the hand of the donee, though the witnesses saw the party in the act of signing, yet if the attestation clause omit to insert the word signed, it is a bad execution of the power; and parol evidence is inadmissible to prove the fact, in opposition to the omission in the attestation clause. Allen v. Bradshaw, 6 Eng. Eccl. R. 283; Waterman v. Smith, 16 Eng. Cond. Ch. R. 629, and the note there.

The decisions of the English Judges since our separation from the mother country are doubtless entitled to great respect, but are not obligatory as authority here; and when evidently founded upon incorrect principles, and especially if repugnant to the habits and course of business of our own people, ought not to be adopted by the Courts of this country. The adoption of the doctrine in question would, with us, defeat most wills made by virtue of powers of appointment, unless executed under *the careful direction of counsel learned in the law. In the case before us, it would equally condemn the attestation of both the subscribing witnesses to the paper E, and would be fatal to most of the testamentary papers propounded in the cause. And in all such cases, it would utterly proscribe a general attestation of the instrument by the subscribing witnesses.

After what has been said, the case, it seems to me, is free from further difficulty. The will itself is liable to no objection, and both parties have concurred in its admission to probat. The testimony of the subscribing witnesses to the paper E, is sufficient to prove that it was duly signed, sealed and attested, in conformity with the power. This is equally true in regard to the paper E, of the same date, also propounded as a codicil. The paper B, propounded as a codicil, and dated the 10th of Eebruary 1840, has not been duly executed, it appearing upon its face not to have been sealed by the testatrix; but the objection is removed by its express recognition and confirmation in the codicil E. Lovelass on Wills 304; Law Lib. vol. 25, p. 163; Habergham v. Vincent, 2 Ves. jr. R. 228; Smart v. Prujean, 6 Ves. R. 560; Hume v. Rundell, 6 Madd. R. 331. The paper C, I have already shewn to be testamentary in its character, and in all respects duly executed. The paper D, dated the 11th of March 1843, also propounded as a codicil, is defectively executed, having but a single subscribing witness ; and I cannot perceive that it has been recognized by any of the other testamentary papers.

This objection to the paper D, it is argued by the appellants’ counsel, ought not to prevail, inasmuch as it merely presents a case of a defective execution of a power; and that the consideration for the appointment being meritorious, a Court of Equity would supply the defect. It is therefore contended that the Court of Probat ought to admit the paper, subject to the action of the Courts of construction. But, without expressing an ^opinion, whether in Virginia the Court of Probat must not in all cases be satisfied that the power has been duly executed; how can we get over the difficulty that the paper has not been duly proved as a merely testamentary act? Besides, if this be a proper case for relief in equity against the defective execution of the power, (as to which I express no opinion,) the admission of the paper to pro-bat as testamentary is not a requisite preliminary, (as it is upon the question of construction whether the power has been duly executed, 2 Wills’ Ex’ors 42,) inasmuch as a Court of Equity, in a case of defective execution, acts not upon the instrument, but upon the person in possession of the estate, by compelling him to make good the defect. Sugd. on Pow. 346.

Upon the whole case, my opinion is that the sentence of the Circuit Court is correct in admitting to probat the paper propounded as Mrs. Glassell’s will; and that there is no error in rejecting the paper D, propounded as a codicil; but that it is erroneous in rejecting the papers propounded as codicils, marked B, C, E and E.

STANARD, J.,

concurred generally in the opinion of Baldwin, J. ; but dissented as to the assignment C, and the papers No. 1 and No. 2, referred to therein. He was of opinion that the paper itself, and every circumstance connected with it, shewed that it was intended to operate inter vivos; and if it had been delivered it would have been irrevocable.

He had great doubt about the codicil B, confessedly not well executed, but said to be recognized in codicil E. He thought the authorities referred to cases where the one paper was incorporated in the other. He also had some doubt whether the codicil E was well executed according to the power.

BROOKE, J.,

concurred with Stanard, J., as to the paper C, and the bonds No. 1 and No. 2, referred to in paper C, and concurred with Baldwin, J., in all other respects.

*CABELE, P., concurred fully with Baldwin, J.

The decree of the Court was as follows:

The Court is of opinion, that there is no error in so much of the sentence of the Circuit Court as admits to probat and record, as therein mentioned, the paper writing marked A, bearing date the day of August 1828, as the last will and testament of Margaret C. Glassell, deceased, in execution of the power which she had under her marriage settlement, bearing date the 27th day of June 1821, nor in so much of said sentence as rejects from probat the paper writing marked D, bearing date the 11th day of March 1843, propounded as a codicil to said will, the same having been attested by only a single witness. And the Judges of this Court sitting in this cause being equally divided in opinion upon the question whether the paper writing marked C, propounded as a codicil, bearing date the 10th day of December 1841, together with the papers accompanying it, and marked respectively No. 1 and No. 2, ought to have been admitted to probat, so much of said sentence as rejects the same must, under the act of Assembly in such cases made and provided, be affirmed. It is therefore considered by the Court, that so much of the said sentence as admits to probat the said paper A, and rejects from probat the said paper D, and the said paper C with the accompanying papers No. 1 and No. 2, be affirmed. But the Court is further of opinion that so much of said sentence of said Circuit Court as rejects from probat the following paper writings propounded as codicils to the said last will and testament, to wit, the paper writing marked B, bearing date the 10th day of February 1840; the paper writing marked E, bearing date the 7th day of October 1843; and the paper writing marked E, bearing date the same 7th day of October 1843, is erroneous. It is therefore considered by the Court, that so much of said sentence as is above declared to be erroneous be ^'reversed and annulled, with costs to the appellants. And this Court proceeding to pronounce such sentence as the said Circuit Court ought to have pronounced, instead of so much of its said sentence as is above declared to be erroneous, it is further considered and pronounced that the said paper writing marked B, the said paper writing marked E, and the said paper writing marked E, are true codicils of the said Margaret C. Glassell to her said last will and testament, in execution of the power which she had by her marriage settlement aforesaid, and that the same be admitted to pro-bat and record as such: and it is further considered and ordered, that each of the parties do pay their own costs expended in the said Circuit Court. And the cause is remanded to the said Circuit Court, with instructions to set aside the order granting administration to the said John Glassell upon the goods, chattels and credits of the said Margaret C. Glassell, with the said last will and testament annexed, and to grant him such administration with the said last will and testament, together with the said codicils, annexed.  