Moodie v Reid and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1817 |
| Date | 01 January 1817 |
| Court | High Court of Chancery |
English Reports Citation: 56 E.R. 189
COURT OF THE VICE-CHANCELLOR OF ENGLAND
See Hughes v. Wills, 1852, 9 Hare, 769. For subsequent proceedings, see 2 Madd. 156.
[516] moodie v. reid and others. May 24, June 2, 1810. [See Hughes v. Wills, 1852, 9 Hare, 769. For subsequent proceedings, see 2 Madd. 156.] Husband not entitled to have a defective execution of a power in his favour, by his wife, supplied. Qucere.-Whether, when a power is given to be executed by a will, " signed and published in the presence of, and attested by, two or more credible witnesses," a will signed by the testatrix, and attested, generally, thus, " Witness B. H. and J. H." is a good execution of the power. The Plaintiff, previous to his marriage with his late wife, Sarah Moodie, joined with her in a settlement [517] of her property, on certain events, which happened, "In trust, as to one moiety thereof for the Plaintiff, his executors, &c.; and as to the other moiety thereof for such person and persons, and for such estate and estates, intents, and purposes, and subject to, with, and under such charges, conditions, provisoes, restrictions and limitations, and in such manner as Sarah Crowther (afterwards Mary Moodie deceased, the wife of the Plaintiff), by any deed or deeds, instrument or instruments in writing, to be by her sealed and delivered in the presence of two or more credible witnesses, or by her last will and testament in uniting, or by any writing or appointment in nature of a will, to be by her signed and published in the presence of, and attested by, two or more credible ivitnesses; and which deed and writings, and will, or writing in nature of a will, notwithstanding her then intended coverture she was thereby empowered to make, should direct or appoint, and in default of such direction or appointment, or in case any direction or appointment should be made; and also as to so much and such parts and shares thereof as should 190 MOODIE V. REID 1 MADD. 518. not be completely or entirely disposed of, as thereby is mentioned, subject to incomplete disposition or appointment, upon trust, for the person or persons who would have been entitled thereto in case the said Sarah Crowther had died sole and unmarried intestate, and possessed thereof, and did and should transfer the same accordingly." Sarah Moodie made her will, dated 4th May 1812, bequeathing to her husband, the Plaintiff, the property over which a power was reserved to her by the before-mentioned settlement. The will concluded with these [518] words, " Signed by me, this 4th day of February 1812, Sarah Moodie;" and the will was attested thus, " Witness, Betty Headington, Jane Headington." The Defendants, who were entitled to the property in case the power was not executed, insisted the power was not well executed. Evidence was adduced by the Plaintiff, proving, by the attesting witnesses to the will, that the testatrix signed and subscribed her name to the paper writing produced ; and that from what the testatrix said in the presence and hearing of the witnesses, they understood it to be her will, and that they set and subscribed their names thereto, in the presence of the testatrix, and in the presence of each other. The question was, whether this will, so signed and attested, was a good execution of the power; or, if it was a defective execution, whether the Court would supply the defect in favour of the Plaintiff. Mr. Hart and Mr. Eoupell, for Plaintiff. This power must be considered as well executed. The power to be well executed by will must be " signed and published in the presence of two or more credible witnesses:"-Now, this is a will, and it is signed and published in the presence of two witnesses; and the word " witness " in the...
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