DOE d. SPILSBURY and an'. v. BURDETT and or.

King's Bench.

A power was

given to appoint

by last will and

testament in

nature of a last

codicil or codicils thereto, to be by the appointor sigued, sealed, and published in the presence of and attested by three or more

credible wit

nesses." A will the commencement was a decla

was made. At

EJECTMENT for estates in the several parishes of Etwall, Willington, Repton, and Barrow-upon-Trent, in the county of Derby, brought upon the several demises of Francis Ward Spilsbury and Lucas Ward Spilsbury, writing, or any against Sir Francis Burdett, William Jones Burdett, Frances Burdett, William writing purporting Horobin, John Wilson, and Anthony Harding. A marriage settlement, dated to be, or in the the 4th and 5th December, 1787, was entered into on the marriage of William will and testament, or by any Augustus Skynner with Lydia Henning Ward, by which a power of appointment was given to Miss Ward, to be exercised by her will executed and attested, as by the power required. By her will, dated 12th September, 1789, she assumed to exercise the power of appointment in favour of Mr. Skynner; from whom, by divers conveyances, the several defendants claimed. The lessors of the plaintiff claimed under the ultimate limitations in the settlement, on the ground that the power was not effectually exercised by the will. At the trial at the Lent assizes 1834 at Derby, before Tindal, C. J., a verdict was found for the plaintiff, subject to the opinion of the Court on a special case, which stated (amongst others) the following facts :-) -By the settlement, the estates were conveyed to the use and behoof of such person did publish and and persons, and for such estate and estates, upon such trusts, and to and for such ends, intents, and purposes, as she the said Lydia Henning Ward, whether covert or sole, and notwithstanding her present intended or any future coverture, by her last will and testament in writing, or any writing purporting to be, or in the nature of her last will and testament, or by any codicil or codicils thereto, to be by her signed, sealed, and published in the presence of and attested by three or more credible witnesses, should give, devise, direct, limit, or appoint; and for want of such gift, devise, direction, limitation, or appointment, and as to such part or parts thereof, whereof there should be no such gift, devise, direction, limitation, or appointment,

then over.

Lydia Henning Skynner died on the 30th September, 1789, in the lifetime of her husband William Augustus Skynner, leaving no child or children her surviving. She left at her death an instrument in writing, purporting to be her last will and testament, dated 12th September, 1789, of which the following is a fac simile copy :

ration by the testatrix, that she

declare it to be her last will and

testament. At the declaration, it

end, after a similar

proceeded, "In witness whereof,

I

have set my hand and seal."

Then followed her
name and seal, and
after the word
"witness," the

names of three

Held, that the

witnesses:

will was a good execution of the

it

power, though was objected tion ought in terms to have ex

that the attesta

pressed that the will was executed

of in the presence of

"I, Lydia Henning Skynner, wife of William Augustus Skynner, Esq., Gould Green, in the parish of Hillingdon, in the county of Middlesex, do publish and declare this to be my last will and testament.

"I appoint my beloved husband, William Augustus Skynner, my executor, and my beloved mother, Lydia Ward, executrix with him. I give to my beloved mother, Lydia Ward, for her natural life, the rents, issues, and profits of the messuage, farm, closes, lands, and hereditaments at Etwall, Twyford, and Stenson, in the county of Derby, and after her death to go to my beloved husband, William Augustus Skynner, his heirs, executors, administrators, and assigns, absolutely for ever.

"I give to my beloved cousins hereinafter mentioned, after the decease of the said William Augustus Skynner, to be paid out of the two thousand two hundred pounds New South Sea Annuities, now standing in trust in the names of Lucas Spilsbury, Esq., of Bawtry, in the county of York, Joseph

the witnesses.

DoF dem. SPILSBURY

v.

King's Bench. Amphlett, Esq., of Dudley, in the county of Leicester; the Rev. Charles Egerton, Clerk, Rector of Washington, in the county and diocese of Durham; and John Hollingworth, of Threadneedle Street, London, Esq.: that is to say, 1000l. New South Sea Annuities, to be equally divided among the five children of Nicolas Martyn, Esq, of Watford, in the county of Herts. The other thousand to be divided between the four children of the Rev. Barnard Fowler, of Wormley, in the county of Herts; and the 2007. to be divided, share and share alike, between the four children of John Hollingworth, banker, Threadneedle Street, London.

BURDETT.

“And as to all the rest and residue of my estates, real and personal, whatsoever and wheresoever, or of what nature, kind, or quality the same may be or consist of at the time of my decease, and entitled to hereafter, and not herein before disposed of,

“I give, devise, and bequeath the same, and every part and parcel thereof, unto my beloved husband, William Augustus Skynner, Esq., his heirs, executors, administrators, and assigns, absolutely for ever; and hereby revoking all former wills and codicils,

“I declare this only to be my last will and testament.

"In witness whereof I have to this my last will and testament, contained in one sheet, set my hand and seal, the 12th day of September, in the year of our Lord one thousand seven hundred and eighty-nine.

Ann Ball, one of the three witnesses, is still alive, and was not examined at the trial.

At the death of the said Lydia Henning Skynner, her uncle, Benjamin Ward, was her heir at law.

On the 18th November, 1789, a bill in Chancery was filed by the said William Augustus Skynner, (executor and devisee of his late wife,) and Lydia Ward, (her mother, and also executrix of and devisee named in her said will,) against the said Benjamin Ward and the trustees under the said settlement of the 4th and 5th December, 1787, praying to be at liberty to examine the witnesses to the said will, in order that their testimony might be perpetuated and preserved.

On the 2d March, 1790, the said Benjamin Ward put in his answer to the said bill, referring the plaintiffs to such proof of the due execution and attestation of the said will as they should be able to make; and in case it should appear not to be so executed and attested, claiming as heir at law.

On the 26th March, 1790, the depositions of Charles Ball and Elizabeth Ball, as to the execution of the said will, were filed in the said suit, and were, on the 20th February, 1834, ordered by the Vice-Chancellor to be published on a bill of revivor. Those depositions contain, amongst other things, that the witnesses examined were severally subscribing witnesses to the execution of the said will of the said Lydia Henning Skynner, and that they did severally see her sign, seal, publish, and declare the same as and for her last will and testament; and that each of them, the said Charles Ball, and Elizabeth Ball, and Ann Ball, were then also present, and were the subscribing witnesses thereto. No final order or decree was made in that suit.