This question arises on the execution of a power, created by the will of John Dowers, and the will and codicil of Catharine Dupuy. [Here his honour repeated the facts of the case.] Is this a good appointment ? Can the Court dispense with the seal, and is the want of it such a defect in the execution of the power, as that Chancery would grant relief to the appointees standing in the situation they do, and support the appointment ? Can the will and the codicil be considered as one conjunct disposition of her own estate, and appointment under the will of her father, constituting but ‘one instrument, and attended with all the solemnities, and ceremonies imposed by the testatrix ? The will itself has all the essential forms prescribed by the testatrix. The appointment is in writing under her hand. It is in the presence of a greater number of witnesses than is required. As was suggested by the plaintiff’s counsel, the will of John Dowers was most probably modelled on some ancient form by the scrivener. It perhaps had its origin in former days, when the credit of all instruments was justified by the actual seals of the parties. Here then we have the instrument authenticated by more witnesses than the testatrix required. This authentication by witnesses is all the testatrix had in view ; for it is not required to be by deed. Hand and seal, without proof of delivery, would be sufficient. Nor is it required, that the witnesses should be subscribing witnesses : but merely under seal, executed in the presence of two or more witnesses, in Pennsylvania, our Courts have in many cases departed from those forms, prescribed even by the legislature. One instance of which is in the acknowledgment of conveyances by femes coverts; there the substance only has been required, and not a rigid technical adherence to the letter of the law. Yet, with all this, I am *114not prepared to say the Court could dispense with the seal in the execution of this power.
This is not the case of the exercise of a power reserved by the owner over his own estate, but it is a power to be exercised over the estate of another. For a distinction has been taken between the execution of powers over the.estate of a third person, and the party’s own ; in the latter case, the want of little circumstances may be helped in equity. Sayle v. Freeland, 2 Vent. 350. But even this has been denied in Bath v. Montague, Powell on Powers, 130. But where the power is given to the devisee of a particular estate, the most strict adherence to all the forms and ceremonies prescribed, would seem to be required, and all the circumstances prescribed in the creation of the power internal and external, reserved by the owner to be exercised over his own estate, demand a strict observance.
If sealing be required to a will, though not incidental to such an instrument, the want of it is fatal. The instrumental circumstance of the seal is arbitrary; but it has pleased the owner of the estate to prescribe it. It is unimportant and insignificant, except as it is required.. It becomes essential, as it is required by him who gave the power. It is incapable of substitution, because the requisition has no spirit in it which can otherwise be satisfied. There can be no equivalent, because it is of no value. But oil the ground on which my opinion is formed, it becomes unnecessary to touch the question, whether in Pennsylvania, Courts would not, in the liberal relaxation in matters merely ceremonial and unessential, dispense with the seal, where all essential and substantial requisitions have been complied with.
If this be a defective execution of the power, do the appointees form one of those classes of claimants-, to whom a Court of Chancery would extend relief ? I think not. For the perfect execution of the power has not been prevented, either by fraud or accident. Here is neither purchaser, creditor, nor wife ; nor child, nor grand-child unprovided for. The owner of the estate, on failure of appointment, has provided for all his grand-children; for all equally ; and this is equity. All the grand-children come in by a title antecedent to the will of Catherine Dupuy, under the will of John Dowers.-
As this appointment appears to me to have been delibe*115rately and solemnly made ; and as it is attended with all the checks and guards required by the testator, against fraud and imposition, I feel a strong inclination to support it; believing it to be the duty of the Court to give it effect, if it can be done without violation of any principle or rule of property. I am of opinion it can be so done. Not that my mind has arrived at this conclusion without some hesitation. But the more I have reflected upon it, the less has been this hesitation. It can be so done, by considering the will and codicil as one conjunct disposition ; as one whole instrument; and then it will be executed with all the forms prescribed. In all acts performed on the same day, relative to the same matter, the Court will so arrange them as to conform to the intention of the parties, without regard to that which was first executed. 10 Mass. Rep. 336. Several instruments or deeds of the same parties, relating to the same matter, may be considered as one assurance. Johns. Cas. 91. All the several parts of a deed, and ceremonies necessary to the conveyance shall be taken together as one act, and operate by way of relation to the substantial part, 5 Burr. 2787.
The argument opposed to this by the defendant’s counsel, is not entitled to much' consideration; that the codicil has no relation to the appointment. It is true the appointment must be made with reference to the power, or must be by some act applying to the subject matter. But in the case before us, the will and the codicil were both in. the hands of Dr. Sim, one of the subscribing witnesses. Holding, them in his hands, he asked Mrs. Dupuy, if she acknowledged the same to .be her last will and codicil. It is made part of the case, that both will and codicil were acknowledged at one and the same time. The letter, though wrote before, was not attested, published, or acknowledged as her will, until the whole disposition was made ; and the whole, the will and the codicil, were conjunctly acknowledged. In Lord Leicester's case, cited by the counsel in favour of the appointment, the intention that instruments should act in conj unction prevailed. There is here internal evidence. The res ipsa loquitur ; the most unerring species of evidence; and external evidence, positive proof, that it was the intention of Mrs. Dupuy, that the two instruments should be taken together, and form one whole disposition; that they conjointly, should execute her views, as well with regard to the disposition of *116her own estate, as the power over her father’s estate. This is more than the case of annexation ; this is an incorporation. She desired that the codicil should be added to the will; it is added thereto with the seal; it is a continuation of the will. It is now settled, that'a codicil with three witnesses, relating to personal estate, and expressing no intention as to republication of the will, is a republication; and, therefore, if the will contain a general devise of lands, lands purchased in the interim will pass. These lands did not pass by the will; the will could not operate on them; Why did it operate ? Because the codicil, by its publication, incorporated the will: because the devise in the will was brought down to the codicil. But the case is sti-onger; for here the will was first published, and acknowledged conjointly with- the codicil; here is not an implied intention ; but a declared one ; an act; not only internal evidence, but fact proved. Puttirxg all the facts and circumstances together, in substance, and reality, the-seal is annexed to the whole disposition. It has riot, nor could it be made a question,-but that the appointment might be made by will. Where one of two partners executed an arbitration bond, to which he subscribed the name of the firm, and affixed one seal, the other party having previously i-ead and approved the bond, and consenting that his partner should execute it for both, and being in the store at the time of the execution, though it was not actually signed and sealed in his immediate presence, this was held a good execution of the bond, so as to make it the deed of both. Mackay v. Bloodgood, 9 Johnson, 285.
Now in this case,-,there was only a Constructive sealing by one of the parties, and yet it was decided to be his deed, though the seal was .not affixed to it in his immediate presence, nor was it delivered by him; nor had the other a power under seal, to affix the seal of the firm thereto.
The result of my opinion is, that the appointment made Mrs.' IPypuy, is a valid one, and that judgment be entered according to the agreement of the parties, in the case stated.
Judgment for the plaintiff.