Olivet v. Whitworth

Construction of Powers• — Punctuatibn—Power to Dispose of Property by Will, or Instrument in the Nature of a Will Executed in the Presence of Two Witnesses — Intent of Donor of Power. In construing an instrument of writing, the punctuation may be considered, provided the punctuation itself has not created the ambiguity. When the constituent of a power gives to the donee the right to dispose of property by will, it is not necessary to prescribe the formalities by which the will'is to be executed, for the law does that, but when the power is to be executed by "an instrument in the nature of a will, ’ ’ then he should determine the mode of its execution, and such mode must be followed. A “will” and an “instrument in the nature of a will” are not such equivalent terms as to make the mode prescribed for executing the one necessarily applicable to the other. The intent of the donor of the power is the great principle which governs in construing the mode in which the power must be executed, and a doubt should, if possible, be solved in favor of the valid execution of the power. By a deed made in contemplation of marriage, a woman conveyed certain property to a trustee to pay the income to her for life, and after her death to convey and deliver the estate to such persons as she (thegrantor) “may by last will and testament, or by instrument in the nature of a will executed in the presence of two witnesses, limit and appoint,” and in default thereof to her heirs at law. The woman subsequently became domiciled in Geneva, Switzerland, where she made a holographic will, not executed in the presence of witnesses, and a holographic codicil thereto by which the property held in trust as well as the balance of her estate was bequeathed to her husband in the event of her death without leaving issue. Such holographic will was valid under the Code Napoleon, the law of her domicil. The testatrix died without issue. Held, that this will was a valid execution of the power reserved in the deed of trust, since the terms “executed in the presence of two witnesses,” were strictly applicable only to an instrument in the nature of a will, and did not require that a will valid according to the general law should also be executed in the presence of two witnesses.

Appeal from the Circuit Court of Baltimore City. In 1873 William Charles Whitworth, an embosser, and his wife both died of typhus fever at the Stockwell Hospital, London, within three weeks of one another. They left surviving them seven young children. One of these, named Sophia Matilda, who had been born two years before in one of the Courts of Drury Lane, was at first placed by an uncle, upon the death of her parents, in a work-house, and was subsequently removed to an orphanage at Hornsby. In 1875, Mrs. Ann Pleasants, a wealthy American lady then residing in Europe, saw the child at the orphan asylum and adopted her with the consent of the child’s maternal grandmother, who told her relatives that Sophia was going to live abroad and “would be a lady for life.” Mrs. Pleasants called the child Aimée Page Pleas-ants, and took her to Geneva where she lived. None of the English relatives of Sophia ever heard of her again until after her death and the institution of these proceedings. Mrs. Pleasants died in 1888, leaving a will by which property amounting to $100,000 was bequeathed to her adopted daughter Aimée, then about sixteen years of age. Mr. Ludovic C. Cleeman, of Philadelphia, the executor and trustee named in Mrs. Pleasants’ will, went to Geneva upon a summons from the American Consul, and brought Aimée back to Philadelphia with him. She lived with Mr. Cleeman and with Mrs. Pleasants’ sister in Clark County, Virginia, until the autumn of 1891, when Mr. Cleeman sent her to Geneva to spend the winter. There she met and ^became engaged to Mr. Olivet, an architect. He returned to America with her in the spring of 1892, and they announced to Mr. Cleeman their engagement to be married. He urged Miss Pleasants to execute a deed of trust of all her property before marriage, reminding her of the solemn letter that her adopted mother had left advising her to do that if she married, and telling her “that a request from such a quarter could not be refused.” Miss Pleasants refused to execute a deed putting more than half of her estate beyond her control, and in June, 1892, while on a visit to friends in Baltimore, the deed of trust to the Safe Deposit and Trust Company, referred to in the opinion of the Court, was executed by Miss Pleasants and her fiancé. A few days afterwards they were married in Washington, D. C., and sailed immediately for Europe. They took up their residence at Belle Rive, a suburb of Geneva, and while domiciled there Mrs. Olivet made a holographic will in French of which the following is a translation: “ I, the undersigned, Aimée Olivet Pleasants, make my olographic will as follows: In case I should die without posterity, I name and constitute Mr. Alfred E. Olivet, my husband, my sole legatee of everything. Thus written, dated and signed, the whole by my own hand at Geneva, the 9th day of January, 1893. (Signed), Aimée Olivet Pleas-ants.” On February 12th, she made a holographic codicil at Nice, by which she bequeathed certain small legacies to "friends in America and Geneva and expressed her desire “ that all my fortune, as well — that placed in the Safe Deposit and Trust Company, Baltimore, Maryland, U. S. of America, as the rest thereof, be handed over at my death to my husband, Alfred Olivet, my sole legatee.” The next day she wrote the following letter to her former trustee and guardian — the last that he ever received from her: “ Westminster Hotel, Nice, February 13th, 1893. Dear Mr. Cleemann: — I have made a will, a very concise one, in which I name for my universal legatee my husband, and have also placed at the same notary in Geneva, at Mr. Charles Binet (office at 21 Corraterie), a codicils for the legacies I make, in which I mention my wish that there should be no trouble whatever in drawing out the $50,000 out of the Trust Co. in Baltimore and remitting it with the rest of the estate to Mr. Olivet at my death. This will and codicil are to be valid only in the case of my dying childless ; I made this will a codicilr in this manner, on my leaving Geneva for Nice, because I was in wretched health at the time, very anemic, and wanted everything to be all right in the event of my death. I expect the birth of a child towards the end of May or beginning of June. Sfiould the child or I both die, according to the will I’ve made, my husband inherits all except a few legacies. Should I die leaving a child, the will would be worthless, as he would naturally become my heir, by the law. I write you all this so as to ask you if you don’t think I’ve made things all right ? Perhaps it is necessary a copy of my will should be over in America ? Should I die without having sent a copy to America, will you, nevertheless, see that everything is done according to my wishes as written by my own handwriting an- left in the hands of the notary, Charles Binet, the will on the 9th of January, in Geneva, and on the 12th of February, 1893. The codicil*? was sent from Nice and duly received. Mr. Binet is the notary, my banker, Mr. Bates, recommended to me. Altho’ you are no longer my trustee, dear Mr. Cleeman, you have been so kind, that I can’t help thinking you will write and tell me that I must stop being nervous over these things, and that in case anything should happen to me you will see that things go smoothly and prevent Mrs. Randolph or anyone from impeaching the will I’ve made. Mr. Olivet is so good to me that sometimes I dread lest life with him should be too good to last. We will leave Nice very soon now, so please answer at my address in Geneva. The last battle of flowers took place this afternoon ; we watched it from the window, as it would have been rather useless to order a decorated carriage and flowers to throw, etc., unléss I could have been certain of my ability to go to it — and to-morrow will be the last of the Carnaval. I suppose you have seen several Carnavals ? I hope to come back here some day when I can enjoy the place thoroughly. But I am turning this business letter into one of sentiment and amusement and must stop, as I am feeling tired. Please give my best regards to all at 2135 Spruce ; my love to Miss Ellen and tell her I know she will make allowances for my not writing to her, as I would like to, when she learns I only write necessary letters, as I am not well. Affectionately yours, Aimee Olivet Pleasants. If you see Miss Page and Miss Bowie, will you kindly remember me to them. Illness has prevented me directing this until to-day.” On May 29, 1893, Mrs. Olivet was delivered of a stillborn child, in her villa at Belle Rive, and a few hours later died. The Act of Notoriety by which it was established that Mrs. Olivet disposed of her property by last will was as follows (translated:) “ The twenty-first day of June, in the year eighteen hundred and ninety-three. Before Mr. Charles Louis Ferdinand Cherbuliez and his colleague, Notaries of Geneva, the undersigned, the first acting for Mr. Charles Binet, for the moment prevented from acting, also a notary of Geneva. Appeared, Mr. Charles Albert Mayer, proprietor, residing at Geneva, Hotel Beaurivage, and Mr. Franz Paul Borisser, clerk, residing at Geneva, No. 13 Pierre Falto street, who on their honor and conscience have certified and declared as a fact of public notoriety to all whom it may concern: That they were perfectly well acquainted with Madame Aimeé Page Pleasants, born Whitworth, daughter of Mr. William Charles Whitworth and Mrs. Matilda Gilbert, and adopted daughter of Mrs. Annie F. Pleasants, wife of Mr. Alfred Etienne Olivet, architect, citizen of Geneva, domiciled at Belle Rive, Commune of Collonge, Canton of Geneva, and that they know that the said Madame Olivet Pleasants died at the said place the 29th day of May, 1893, at half-past eleven o’clock at night, as appears by an extract from the register of deaths of the Commune of Collonge, Belle Rive, signed and delivered the 20th of June, 1893, by Mr. John Bassell, Director of the Cantonal Bureau of the Etat Civil, which is hereto attached. “ That Madame Olivet Pleasants left an olographic will dated at Geneva, the ninth day of January, 1893, and a codicil, also olographic, dated at Nice (Maritime Alps France), dated the twelfth day of February, 1893, both of which have been deposited among the archives of Mr. Binet, a notary at Geneva, by Act of the 12th day of June, 1893, by virtue of a decree rendered the ninth day of the same month of June by Mr. George Navazza, Judge of the Tribunal of First Instance of Geneva. That by the said will and codicil Madame Olivet Pleasants, in case she should die without posterity, named and instituted her husband, Mr. Alfred Etienne Olivet, her residuary legatee, and made several special legacies. That Madame Olivet Pleasants left no relatives in the ascending line and no descendants whatever, her only child having been born dead on the 29th day of May, 1893, at half-past six o’clock in the evening, as appears from an extract of the Register of Deaths of the Commune of Collonge Belle Rive, signed and delivered the 19th day of June, 1893, by Mr. John Bassel, Director of the Bureau Cantonal of the Etat Civil, and which is hereto annexed. “ Wherefore, Madame Olivet Pleasants became a Genevese citizen by her marriage, having left no heir, having right by law to her property, according to -the laws of Geneva, the disposition made by her in favor of her husband comes by right into full execution. Of which this is the act. “ Done and passed at Geneva in the office, No. 21, Corraterie. “And after having been read, the witness have signed with the notaries the present minute on file with Mr. Binet. (Signed), Ch. Mayer, F. Boussar, H. Marquemer, notary; F. Cherbuliez, notary.” Subsequently upon the petition of Olivet reciting the death of his wife and the terms of her will the following order was passed: “ We, the Judge, whose name is subscribed by delegation of the President of the Tribunal of First Instance, having examined the present petition and the papers produced therewith, to-wit: (a.) An Act of Notoriety conducted the 21st day of June, 1893, by Mr. Charles Binet, notary. (A) An Act of Deposit in the minutes of Mr. Charles Binet, notary, of the olographic will and codicil of Madame Sophia Matilda, the said Aimeé Pleasants, wife of Alfred Etienne Olivet, the said Act of Deposit being dated June 12, 1893. Agreeably to the Articles 1006 and 1008 of the Civil Code. We place Mr. Alfred Etienne Olivet as general legatee in possession in everything bequeathed by the said Aimeé Page Pleasants, his wife, by her olographic will of the 9th day of January, 1893, and by her olographic codicil of the 12th day of February, 1893. Geneva, the 30th day of June, 1893. (Signed), Ch. Aubent, judge.” Upon the petition of the Safe Deposit and Trust Company the Court below had assumed jurisdiction over the administration of the fund conveyed to it by the above-mentioned deed of trust. The foregoing documents were filed' by Olivet in that case, and .he asked for a decree directing the payment of the fund to him as the legatee of his wife. An order of publication was issued warning the heirs at law and next of kin of Mrs. Olivet to appear and show cause why the decree asked for by Olivet should not be made. John Whitworth and other brothers and sisters of Mrs. Olivet appeared and claimed the fund-under the terms of the deed of trust. A commission to take testimony was issued to London, under which the births, marriages and deaths of the Whitworth family were proved by certificates from the Registrar General Office, Somerset House, London, and by the evidence of members of the family. Another commission to take testimony was issued to the United States Consul at Geneva, under which several depositions were taken. Among them was the evidence of MM. Des Gouttes and Demole, both doctors of law and advocates in the Courts of the Canton of Geneva, who testified that under Article 970, of the Civil Code Napoleon, which is in force in Geneva, a holographic will is perfectly valid, provided it be entirely written, dated and signed by the hand of the testator, and that witnesses thereto are in nowise necessary; • that under the Code there are three forms of wills,- the holographic, by public act, and the mystic, but the holographic is the most widely used form — nineteen out of twenty persons using it; that after the death of a testator the validity of a holographic will is established by being produced before a Judge of the Tribunal of First Instance for confirmation, according to Article 1007 of the Code Napoleon. The Court below (Dennis, J.), decreed that the holographic will of Mrs. Olivet was not a valid execution of the power contained in the deed of trust to the Safe .Deposit Co., and that under said deed the trust fund belonged to the heirs at law and next of kin of Mrs. Olivet, to-wit, two brothers and two sisters, and the administrator of a deceased brother. From this decree Olivet appealed. The sole question before the Court is this: Was the power legally executed by the olographic will? Olivet claims that an olographic will is a good execution of the power; the alleged next of kin claim that the power cannot be executed by any instrument, unless the same be executed in the presence of two witnesses. To state the question more exactly, it is this: Must the will, and any instrument in the nature of a will, be executed in the presence of two witnesses, in order to be a good execution of the power? Language of Power. — “To such person or persons as the said Aimée may by last will and testament, or by instrument in the nature of a will executed in the presence of two witnesses, limit, nominate and appoint, her coverture notwithstanding. 1. - Punctuation. — If we were to construe this sentence by the punctuation, it would be evident that the expres-. sion “ executed in the presence of two witnesses ” would apply to, and qualify, only the phrase “or by instrument in the nature of a will.” By the punctuation we have two separate and distinct clauses : First — “by last will and testament.” Second — “or by instrument in the nature of a will executed in the presence of two witnesses.” In order to make the other construction possible, it would be necessary to supply a comma after the expression “ nature of a will,” so as to have three separate clauses. We do not claim that this point is conclusive, for frequently punctuation is negligent; although in this deed it seems to have been carefully attended to, as an examination of all its contents will show. What we do claim, however, is this — our construction accords with the punctuation, and the construction contended for by the alleged next of kin does not. To that extent we have a right to claim it as an argument. Weatherly v. Mister, 39 Md. 629; Black v. Herring, 79 Md. 149. 2. Grammatical Construction. — By the grammatical construction, our contention is right. We are contending that the donor of the power intended to give an alternative method of executing the power. It was to be done either— a. by last will and testament, or b. by instrument in the nature of a will executed in the presence of two witnesses. When a power is created, the means of executing it are always introduced by the preposition “ by.” — The clauses are separated not only by the disjunctive “ or,” but by the governing preposition “ by,” which distinctly and peculiarily marks the method of executing the power. This effect of the repetition of the word “ by ” is adopted in Chance on Powers, section 864, page 314. 3. Instruments Differe7it. — It is argued that “ a will,” and “ an instrument in the nature of a will,” are practically the same ; that they are tautological or equipollent expressions ; and that, therefore, any mode of executing the one, should, in reason, be applied to the other. This reasoning is faulty, because the instruments are not the same — A will is a testamentary disposition, a. made by one having capacity to will, b. and in the form prescribed by law. An instrument in the nature of a will is an instrument which has the same effect as a will, but a. may be made by one having no testamentary capacity, b. and the form of which is not prescribed by law, but by the person creating the power. Thus, under the English law, a married woman had no right to make a “ will,” but, in the execution of a power, a married woman had a right to execute an “ instrument in the nature of a will.” If the Court should follow the construction contended for by the appellees, they would be obliged to force the expression, “ last will and testament,” from its ordinary and usual meaning. Though under the old law a married woman could not make a proper will, the instrument being necessarily “ an instrument in the nature of a willat this time, both in Maryland (the place of the execution of the deed of trust), and in France and Switzerland (the place of the domicil of the testatrix), a married woman can execute a proper will; and in all these places a proper will does not require the signature of the testator “ in the presence of two witnesses.” These are undoubtedly the general principles of construction which should govern this case, and are strongly supported by the case of Shearman v. Hicks, 14 Grattan, 96. 4. Why the qualification “ Í71 the presence of two wit-7iesses ? ” It may be argued that the qualification, “ in the presence of two witnesses,” was deemed essential by the donor of the power, and therefore should be applied to both clauses, because there is no other reason which can be given for its introduction into the deed of trust. This reasoning is not sound; because, ist. In Schley v. McCeney, 36 Md. 272, the same words were in the deed creating the power, and yet it was held that the power could be executed by a will made under the statutory forms. 2d. We have a pertinent illustration from Code, Article 93, section 311, copied from the Statute of Frauds, which provides for the methods of making a will. After providing that the original will shall remain in force unless revoked by burning, &c., it proceeds: “Unless the same be altered by some other will or 'codicil in writing, or other writing of the devisor, signed as hereinbefore said, in the presence of two or more witnesses, declaring the same ; ” and yet it has always been held that a will may be revoked in either way, e. g.: 1st. by a will executed according to law; or, 2d. by a writing, signed in the presence of two witnesses. Ellis v. Smith, 1 Ves. Jr. 11; Chance on Pozvers, section 869. This, the Court will perceive, is exactly our contention as to language exactly similar. The draughtsman in the present case evidently followed our old form applying to married women. It was usual to provide for the execution of a power by will, for the husband might die before the wife, and then she could will, or changes might be made in the law. It was usual also to provide for “ instruments in the nature of a will,” for, as a rule, married women, under the English law, could not make a will, strictly so called, during coverture; and the precedents show that this qualification, “ in the presence of two witnesses,” was usually required in such instrument, as appears in 36 Md. 272, and as appears in Code, Article 93, section 311. This is really the explanation of the whole matter. 5. Intention. — It is argued that the intention of the donor of the power was to protect the wife against the influence or fraud of the husband, and for that reason execution in presence of witnesses was required, a. “ The intent of the donor of the power is the great principle which governs in such cases; and we must ascertain that intent from the language used in the deed of settlement creating the estate and confirming the power.” Nevin v. Gillespie, 56 Md. 327. Courts seldom require any formalities in the execution of the power beyond those required by the strict letter of the power.” Schley v. McCeney, 36 Md. 275. b. No such intention can be inferred in this case, as the wife was herself the donor and donee of the power. There might be some ground for contending that a deed of trust executed by a third person might be intended to protect the wife against the husband ; but when the wife executes the deed herself just before her marriage, it seems somewhat absurd to argue that she intended to provide a protection for her own weakness against her intended husband’s influence, c. But the argument of the alleged next of kin must go further. They must show that the intention was not only to protect the wife against the husband, but that this protection was provided for by requiring that any testamentary disposition must be executed in the presence of two witnesses, as the only method of executing the power. Now why should this be the only method ? Suppose Madame Olivet had been domiciled in Maryland, and had attempted to execute the power by a will, good under the Maryland statute ; according to the contention of the other side, this would be an invalid execution of the power. And yet the will would be attested by two witnesses in the presence of the testatrix. Would not an attestation of two witnesses in the presence of the testatrix be as strong a protection to the wife as an execution by her in the presence of two witnesses ? If they concede that a will executed under our present Maryland formalities would be a good execution of the power, then they admit that there are alternative modes of executing the power; and if alternative modes in any case what right would they have to say that the alternative form, e. g., “ by will” should have special formalities other than those prescribed by law ? d. An olographic will is provided with safeguards. It must be dated, written and signed wholly in the handwriting of the testator and then publicly established before a Court. Madame Olivet being domiciled in Geneva, where the olographic is the common and usual will, “nineteen out of every twenty people use it,” the inference is strong, that when the expression “ last will and testament” was used, it was intended by her, the donor, to mean such a will as she was accustomed to. Indeed, unless she preserved a copy of the deed of trust and carried it about with her, the only fixed impression she would retain would be that she had the power to dispose of the fund by last will, such as she understood and was familiar with. e. The fact that she did execute the power by express reference to the deed of trust by an olographic will, shows beyond all doubt what her intention was as donor of the power. True it is that we are not dealing with what her intention was when she made the will, but with her intention when she made the deed ; but her acts under the deed furnish strong evidence as to what she intended by it. Topliff v. Topliff, 122 U. S. 131; LeRoy v. Beard, 8 Howard, 466; Black v. Herring, 79 Md. 146; Pearce v. VanLear, 5 Md. 91. The validity of the execution of a power depends upon the terms of its creation and is independent of the legality in other respects, of the will or other instrument under which the power is sought to be executed. The mode of alienation or appointment operates as a negation of any other mode and is the paramount law governing and controlling every contract in relation to it. Armstrong v. Kerns, 61 Md. 364, 367; Cook v. Husbands, 11 Md. 492, 503. Equity will aid a detective execution of powers in case of purchasers for value, wives, legitimate children and those to whom the party executing stands in loco parentis ; but will not aid a Imsband, illegitimate children, volunteers or the donee. Moodie v. Reed, 1 Mad. 516; 2 Pomeroy Eq. sc. 834; Chance on Powers, sc. 2843; Farwell on Powers, (2d ed.), 332. Puncutation is considered no part of a statute, and Lord Kenyon, C. J., in Doe v. Martin, 4 Term R. 65, said that Courts in construing Acts of Parliament or deeds should read them with such stops as will give effect to the whole. See also Hammock v. Loan & Trust Co., 105 U. S. 84, 85. An inspection of the original deed of trust will disclose that the punctuation was not carefully made by the conveyancer. Thus the comma which the appellant claims is inserted in the first paragraph of the power after the word “ will,” is not inserted at that place; beneath the word “will” and between the line on which “will” is written and the succeeding line appears a pen mark which may or may not have been intended for a comma, and the careless location of this mark in the paper shows the wisdom of Courts in not considering punctuation. The counsel for the appellant has tried to build an argument on the preposition “ by,” and have urged that its repetition in the first part of the paragraph, in connection with the conjunction “ or,” shows an intention to refer to two papers, in the execution of the power. That the conjunction “ or” would not have this effect is too plain to require illustration. As to the preposition “by,” some of the best grammarians consider its repetition before words, having equivalent meaning and conected by conjunctions as in the case at bar, is permissible and proper and it is universally held that had the second “by” in the clause been omitted, so that the clause had read “ by last will and testament or instrument, &c.,” in parsing the instrument it would be given the objective case with the preposition “ by ” understood as its object. The paper evinces an intention to wholly cut off the prospective husband from any part of the fund and secure it to the appellees, for the trust reads “ in default of appointment as aforesaid to convey and assign the same to her heirs at law and next of kin exclusive of any marital rights’' and though Miss Pleasants may not have known her brothers or sisters, the disposition of the fund to them shows the strongest evidence of her feelings. How then could she reserve the power of disposition by will and at the same time protect herself in the free exercise of her own volition ? The ceremony of witnesses required by the settlement, was introduced for the express purpose of protecting the wife against the influence of the husband and are matters of substance and not of form, and without an adherence to those ceremonies the interest of the brothers and sisters cannbt be defeated. The Courts look with especial jealousy to any transaction in which the wife may have acted under the influence of the husband. Breit v. Yeaton, 101 Illinois, 242; Hopkins v. Myall, 2 Russell and Mylnes, 86; 2 Sugden on Powers (3 Am. from 7 London ed.), p. 86*, 94, sec. 13; Hackrell v. Gardiner, 5 De G. & S. 58; McClintic v. Ocheltree, 4 W. Va. 349; Powell on Powers, 130, 148, 150; Watt v. Watt, 3 Vezey, 244; Bath v. Montague, 3 Ch. cs. 107-108; Justis v. English, 30 Graft. 565. Had Miss Pleasants not intended the direction contained in the power as a protection to her against her husband's duress she would have prescribed no formalities, as she could have directed by any testamentary appointment without witnesses to effectively execute the power. If Mrs. Olivet was acquainted with the laws of Switzerland as is contended, and made the deed of trust with a view to executing an olographic will, why did she think it necessary to require no witnesses in one case and two witnesses in the other, though the execution was to be by instruments of the same nature ? The best evidence that an olographic will is not considered as being surrounded by sufficient safeguards is that the laws of Maryland permitting testamentary disposition of property in this manner have been repealed, and the law now requires witnesses to -a will of personal property. In Switzerland, no provision is made for the safe custody of olographic will from the time of its execution until death of the testatrix. No provision is made for notifying persons as to the time and manner of attacking wills. The only method of revoking an olographic will is to destroy the old one and make a new one. The beneficiary becomes vested with the property without proof that the “will” was written by the testatrix, and no person can object, but must wait until the beneficiary has procured the estate, then institute a law suit against the beneficiary, and if the beneficiary has spent or made away with the estate, he will have the satisfaction of vindicating his rights to his sorrow, a solecism peculiar to heirs-at-law in Switzerland. It is not possible that such a paper was contemplated as an execution of the power, but it is probable that she, knowing this form of “will” under the. law, protected her heirs and next of kin against such a paper by requiring two witnesses to the “will,” for, in addition to what has already been written, the power does not read, “Last will and testament duly executed according to law, or by instrument of writing in the nature of a will executed in the presence of two witnesses,” as was the language in Schley v. McCeney (36 Maryland), in which case it would have been more evident that two distinct methods were intended, but the word “ executed” only appears once, and that after “ instrument of writing in the nature of a will,” thus showing that but •one instrument was intended. Expressio unius est exclusio .alterius. Where power is given to a woman to execute by “will” and she executes during coverture, it is held, though at common law a technical will could not be executed by a married woman, the use of this word when applied to a power is not given its technical sense, and is synonymous with “ instrument in the nature of a will.” Jenkins v. Whitehouse, 1 Burrows, 431; Barnes v. Irvin, 2 Dallas, 199-202; Sugden on Powers (8th Eg. ed.), 230; Longford v. Eyre, 1 Peere Williams, 740. Sugden’s Rule. — Where only one power is given and it is authorized to be executed by different' instruments, although the ceremonies required to the execution are not stated after each instrument they will relate to both. Sugden on Powers (8th ed.), p. 224. This rule is supported by the following cases: Dormer v. Thurland, 2 Peere Williams, 506, which was a case exactly like the case at bar, the settlement reading: “ By his last will or any writing purporting to be his last will, under his hand and seal attested by three or more credible witnesses,” and where a will was executed, attested by three witnesses but not sealed, the Court of King’s Bench decided the instruments were the same and therefore not an execution of the power. Ross v Ewer, 3 Atkyns Rep. 150, was where a settlement to married woman read “ by her last will and testament in writing, or other writing under her hand and seal, to be attested by two or more credible witnesses, &c.” The Lord Chancellor decided the direction of sealing and witnesses, applied to the “will” as well as “other writing,” and states: “To reject so material a part of the power, provided as a necessary caution to the deed in order to prevent a disposition by surprise or undue means, is what this Court cannot warrant, therefore I ought not to dispense with these circumstances in the execution of the power.” In Moodie v. Reid, 7 Taunton Rep. 355, the settlement read: “Should by her last will or any-writing or appointment in the nature of a will to be by her signed and published in the presence of and attested by two or more credible witnesses appoint.” In England a valid will did not require publication, yet the Court certified that the direction applied to every method designated for the execution of the power. See also to the same effect: Wade v. Padget, 1 Brown Ch. 364; Doe v. Weller, 7 Term Rep. 478; Chance on Powers, sc. 868.