Page:United States Reports, Volume 2.djvu/208

 zos Casas ruled and adjudged in the 1793. aconlidence would have been repofed in the truliee, that he La-vs.! would make fuch ellaresas {he lhould direct 5 and her willwould. have amounted to a dire€tion, which bound his confcience, and i which a Court of Chancery would enforce. 2 Vez:]. 192. § 6 Bro.Par. Ca. r 56. Powell Contr. 67, -8rc. i' But in this cafe, Margaret Irwin, or Hmderfvn, was the do- . nor, and alfo the donee of the power ;. audit is contended, that of Hm. 8. from makinga will; and by the maxima and rules of the law {he is difabled, as having no will of her own. 'I`he inltrument of 17go, executed by Margaret Header/Err, _ being then covert, is nc: ltriétly a will, but diltinét from it, though in nature of a will. It takes its eH·`e& out of the arti- cles or deed of 1 774, which created the power to make fuch an inltrumenr, and was made in execution'0f fuch power. She takes notice in the preamble of it, that the was a married wo- man, and that, as to what the was legally intitled to difpofe of, herwili was as therein mentioned. lt is ufually called an ap- pointment. A fcme covert can execute au appointment over her own cllate. Powell an Power.: 34. 3 Atl. 712. The rea- fon or ground of a wife’s being difablcd to make a will, is, from her being under the power of the hulband, not from Want of judgment, as in the cafe of an infant, or idiot. Mattbeev Hmdeifm and his wife, before their marriage, a- greed that her real eltate ibould remain her property, and might be difpofed of by will and tellament, in writing, by her, as {he fhould think lit, as abfolutely as if the marriage had never been folcmnized. The intention of the parties is plain, and admits of no doubt. She has accordingly difpofed of it by an inllzrument, in nature of a will and teliament, in execution of the power, and by the exprefs confcnt of the hulband, not to him, or his relations, but amongit her own neareit of kin. No fraud, force, flattery, or improper ufe of the power he had over her, as a huiband, has been exerted, nor is it alledged. This will bar him from any title to her ellate, and why fhould it not bar the heir at law, in equity and reafon? Here wa;. a fair and lawful agreement between them, founded on a valuable and meritorious c0n{idera·- tion. Mrs. H¢m{erj5n,with her hu.b:md,could during the coverture have given away her real ellate by {ine, or deed (if {he had been fecretly examined, agreeably to the at} of All`embl of Penn- _/jlvania) conformably to their agreement; and if he had re- _ fufed to join with her, a Court of Equity (if fuch a Court had exilied here) would, on her application, have compelled him to carry their agreement into execution. It is a lamentable truth, that there is no Court cloathed with Chancery powers, in Penn- jlvania; but Equity is part of our law, audit has been fre- quemly
 * {he could not execute it during her coverture, becaufe the fee
 * {till remained in herfelf, and {he was reltrained by the itatute

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