A feme covert may make a feoffment, in two cases, to the prejudice of her husband: (1) When she does it in pursuance of an authority, (2) or in compliance with a condition. And in both cases the feoffment is good. A wife may give livery to her husband, as attorney, and e converso. 18 E., 4, 11. A feme sole made a feoffment to the use of herself and her heirs, and took husband; and on her deathbed called the feoffees and told them herwill was that they should enfeoff her husband; and died. The husband sued the feoffees by subpoena, but was denied. For in law, a feme covert cannot make a will, and in conscience (equity) the heir ought not to be disinherited, as is argued in all the books. A wife shall in no case have anything done to her advantage. 45 E., 3, 11; 31 E., 1; Voucher, 289. Husband and wife were *enfeoffed until marriage, and enfeoffed the feoffor of other lands in return; she shall be barred of her dower. The wife may well perform either a condition or an authority, and so she has done here.
CREW, C. J., It is a power, and as such may well be performed by the wife. A foeffment and livery ensuing as a feoffment would be void. But here it ensues as a nomination, or appointment, and she may give, *Page 730 part or the whole of the estate. Lady Russel's case was this: She was seized of sundry lands and manors, and suffered a recovery with power reserved to her (being covert) to dispose of any of the manors, and she made a disposition during the coverture. In the time of Queen Elizabeth, Butler levied a fine to the use of himself, remainder in fee, to Lord Leicester, with power to give part of it to his wife; which he accordingly did; and it was held well. I do not conceive, like my brother DODERIDGE, that where one devises that his executor shall levy a fine etc., this gives him a fee. 34 E., 3. Cui in vita, 19. It seems to me that the wife has not a conditional estate, and then it may be objected that she is disabled by the coverture. But I do not deliver an opinion how it would be if it was a condition. But admitting the feoffment and deed to be void, still they will serve to lead the uses of the fine levied by the wife; and in this case she might, by the authority given to her, give the estate to one of the sons by will in extremes.