STOBY, Circuit Justice.
This cause has-been very ably argued upon both sides. It turns principally upon a question, which, rarely occurs in our jurisprudence, the due execution of a power of appointment; and the learning, appropriate to it, has been fully brought before the court in the course of the present discussion. The facts in substance are as follows. (Here the judge recapitulated the facts as before stated, and then proceeded.)
The main question, therefore, is, whether, under the circumstances, Mrs. Blagge, by the devise in her will, has duly executed the-power, given her by the will of Mrs. Hall. If she has, then the demandant has no title whatsoever; if she has not, then he is entitled to recover in the suit.
Some other questions have, however, been raised at the argument, which should be disposed of before we proceed to that, which constitutes the main hinge of the controversy.
[565]*565And, first it is said, that even if Mrs. Blagge’s will is a due execution of the power, the demandant is- entitled to a share of her estate under the Bevised Statutes of Massachusetts of 1833 (chapter 62, § 21), as a lineal descendant of Mrs. Blagge, wfío was unprovided for in her lifetime, and was unintentionally and by mistake or accident omitted to be named as a devisee in her will. The language of the statute is as follows: “When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, they shall take the same share of his estate, both real and personal, that they would have been entitled to, if he had died intestate, unless they shall have been provided for by the testator in his lifetime, or unless it shall appear, that such omission was intentional, and not occasioned by mistake or accident.” The argument is, that this clause is equally applicable to cases, where the testator has a power of appointment of the estate, to dispose of the inheritance, as well as to cases, where it is his own estate in fee. It does not appear to me, that this argument is maintainable. The language of the section seems to me clearly to point exclusively to a case, where the testator has an inheritance in the estate, and not merely a power of appointment over it. It supposes a case, where the omitted descendant would and could take a title by descent, as of an heritable estate of the testator, and under him, as his heir, in case of his dying intestate. But no person can claim an inheritance, as heir, in case of intestacy, where the ancestor has a power •only, and not an interest. The party, if he can take at all, irust take as an appointee under the power, and not as heir. A power is not a descendible inheritance. The property, which he is to dispose of, is in no just sense vested in the appointor. It is not an Interest, right of, or title to, the property; but a mere authority given to the donee of the power, to be exercised over the property in a maimer, and to an extent, which he does not otherwise possess. And such has been the uniform construction from the earliest period of the law on this subject. See Co. Litt. 342b, Butler’s note 1; 1 Chance, Powers, §§ 1, 2; 2 Chance, Powers, § 1632; Co. Litt. 265b. The present power is technically a power in gross; that is to say, the estates, to be raised by it, do not fall within the compass of the estate for life devised to Mrs. Blagge. Co. Litt. 342b, Butler's note 1; Sugd. Powers (6th Ed.) § 4, pp. 43, 44. A power to dispose of an estate by an appointment among third persons in fee, may be given to a mere stranger; and it would certainly be utterly without the intent of the statute to create an inheritance in the ap-pointor in the execution of the power, which should give his descendants an interest in the estate, upon which the power is to operate. It can make no difference in point of law, that the power, if executed, might be by an appointment among his own children or descendants. This would not change the nature of the power, but only its objects.
Then, as to another objection, which has been urged, that the resolve is an unconstitutional exercise of power by the legislature, because it is usurping the functions of the judiciary, contrary to the provisions of the bill of rights of the constitution of Massachusetts, which declares, that “the legislative department shall never exercise the executive and judicial powers, or either of them.” Assuming that such a resolve might be construed, under some circumstances, tó be an exercise of judicial power, it would be difficult to apply the doctrine to a case like the present, where it is passed, not in invitum. but at the solicitation of the very person, who, under the power, possessed a complete dominion over the disposal of the entire property. But, after the exercise of this authority by the legislature for more than sixty years, (for such, I am persuaded, has been the practice,) in very numerous cases of a like or an analogous nature, without any objection by the parties in interest, and with the entire acquiescence of the public, it is not, perhaps, too much to say, that it would be still more difficult to treat it as an exercise of judicial power, in the sense of the constitution. The case of Rice v. Parkman, 16 Mass. 326, seems to me directly in point, and establishes, that an authority, granted by the legislature to transmute real property into personal property, for purposes beneficial to the parties interested therein, is not properly the exercise of a judicial power; for it is not a case of controversy between party and party, nor is thére any decree or judgment, affecting the title to the property. In short, the court, on that occasion, held it to be, not a judicial act, but a mere ministerial act. The case of Wilkinson v. Leland, 2 Pet. [27 U. S.] 627, 660, goes a great way to establish the same doctrine. There, an act of the legislature of Bhode Island, confirming a sale made by a foreign executrix, for the payment of debts of the testator, was held to be, not a judicial act, but an exercise of legislation; a legislative resolution, and not a decree. The case of Ashburton v. Ashburton, 6 Ves. 6. where the lord chancellor, upon the petition of a minor to have some of his money laid out in the purchase of- lands, authorized the purchase to be made, by no means shows, that the act was exclusively judicial. It seems, being upon petition, to have been an act by the lord chancellor, not as a judge, but as the representative of the crown, as parens patriae, having the custody and care of the persons and property of infants. Besides: it is one thing to assert, that a power may be delegated and exercised by a court or judge; and quite another thing to assert, that every power, delegated to. or exercised by a court or judge is judicial, and not ministerial. Many powers, exercised by courts and [566]*566judges, are in no accurate sense judicial; as, for example, the power to make rules for the due order and arrangement of business. But it is the less necessary to dispose of this question absolutely, and therefore I give no positive opinion upon it; because, if ihe power has been duly executed by Mrs. Blagge, whether the resolve be constitutional or not, makes no difference in this ease, since the demandant has no title whatsoever to the property under her will; and the constitutionality of the resolve is not contested by those, who alone are donees under the power.
Having disposed of these points, we may now advance to the main question involved in this controversy. Was the will of Mrs. Blagge a due execution of the power contained in that of Mrs. Hall? And this, after all, I take to depend upon her intention, as expressed in and derived from the language and object of the will of Mrs. Blagge. There was a long struggle in Westminster hall upon the point, whether in wills, the intention of the testator, as gathered ex visceribus testamenti, was to be followed in the interpretation of devises, or whether the technical construction of law, given to certain phrases, was to prevail over the intention. That struggle, at least, since the decision in Perrin v. Blake, 4 Burrows, 2579; Feame, Oont. Rem., by Butler (9th Ed.) p. 156, — seems to have terminated. It is now admitted to be established, as the general rule, that the intention of the testator is the polestar to direct the court in the interpretation of wills, and that technical words and set phrases are controlled by, and do not control, that intention, when clearly expressed or positively ascertained. The consequence is, that decisions upon particular wills are of far less consequence now, than they formerly were supposed to be; unless, indeed, where the leading provisions are almost identical, and the facts substantially alike. They now furnish, not so much authorities, as analogies, by which to interpret the words of wills in new cases.
I apprehend, that similar doctrines now generally prevail in regard to the execution of powers, and especially in regard to their execution by last wills and testaments. The main point is, to arrive at the intention and object of the donee of the power in the instrument of execution; and, that being once ascertained, effect is given to it accordingly. Bennett v. Aburrow, 8 Ves. 609. The authorities upon the subject may not all be easily reconcilable with each other. But the principle furnished by them, however occasionally misapplied, is never departed from, that if the donee of the power intends to execute, and the mode be, in other respects, unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. I agree, that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation. If it be doubtful, under all the circumstances, then that doubt will prevent it from being deemed an execution of the power. All the authorities agree, that it is not necessary, that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient, that it shall appear by words, acts, or deeds, demonstrating the intention. This was directly asserted, not only in Sir Edward Clere’s Case, 6 Coke, 18; but it was positively affirmed in Scrope’s Case, 10 Coke, 143b, 144, where the reason of the rule is stated, “Quia non refert, an quis intentionem suam declaret verbis, an rebus ipsis, vel factis.” On the other hand, to use the language of Lord Chief Justice Best, in Doe v. Roake, 2 Bing. 497, 504, “No terms, however comprehensive, although sufficient to pass every species of property, freehold or copyhold, real or personal, will execute a power, unless they demonstrate, that a testator had the power in his contemplation, and intended by his will to execute it.”
Three classes of cases have been held to be sufficient demonstrations of an intended execution of a power: (1) Where there has been some reference in the will, or other instrument, to the power; (2) or a reference to the property, which is the subject, on which it is to be executed; (3) or, where the provision in the will or other instrument, executed by the donee of the power, would otherwise be ineffectual, or a mere nullity; in other words, it would have no operation, except as an execution of the power. Langham v. Nenny, 3 Ves. 467; Bennett v. Aburrow, 8 Ves. 609, 616. It seems unnecessary to refer at large to the cases, which establish these propositions. They will be found collected, generally, in Mr. Chance’s Treatise on Powers (volume 2, c. 13, §§ 1591-1714), and in Sir Edward Sugden’s Treatise on Powers (volume 1, c. 6, § 2, p. 257 etc.; Id. § 7, p. 373, etc.; Id. § 8, p. 430, etc.), and in the opinion of the court, delivered by Lord Chief Justice Best, in Doe v. Roake, 2 Bing. 497. Lord Chief Baron Alexander, in delivering the judgment of the judges, in the house of lords, in Denn v. Roake, 6 Bing. 475. reversing the decision in the same case, in 2 Bing. 497, and affirming that of the king’s bench (5 Barn. & C. 720), has enumerated the same classes of cases; and he has added, that in no instance has a power or authority been considered as executed, unless under such circumstances. Whether this be so, or not, it is not material to inquire; for there is no pretence to say, that, because no other cases have as yet occurred, there can be no others. That would, in fact, be to say, that the cases governed the general rule as to intention, and not the rule the cases. Lord Chief Justice Best has put these classes of cases upon the true ground. They are instances of the strong and unequivocal proof, required to establish the intention to execute the power; but they are not the only cases. Doe v. Roake, 2 Bing. [567]*567504. On the contrary, if a case of dear intention should arise, although not falling within the predicament of these dasses, it must be held, that the power is well executed, unless courts of justice are at liberty to overturn principles, instead of interpreting acts and intentions. I entirely agree with Lord Chief Justice Best, in his remark in Roake v. Denn, 4 Bligh (N. S.) 22, that, “Buies with respect to evidence of intention are bad fules, and I trust I shall live to see them no longer binding on the judges.” The lord chancellor, (Lord Lyndhurst,) said, that “It has been settled by a long series of decisions from the case, which has been referred to in the time of Sir Edward Coke (Sir Edward Clere’s Case, 6 Coke, 18) down to the present time, that if the will, which is insisted on as an execution of the power, does not refer to the power, and if the dispositions of the will can be satisfied without their being considered to be an execution of the power, unless there be some other circumstances to show, that it was the intention of the devisor to execute the appointment by the will, under such circumstances the courts have uniformly held, that the will is not to be considered as an execution of the power.” Certainly it is not. But then this very statement leaves it open to inquire into the intention under all the circumstances; which seems to me to be the true and sensible rule upon the subject; and when that intention is thus once ascertained, it governs. So, it was expressly held, in Pomery v. Partington, 3 Term R. 665; and in Griffith v. Harrison, 4 Term R. 737, 748, 749, the court expressly repudiated the notion, that any technical exposition was to be given to the words of a will, executing a power; and held, that the intention was to be collected from the words according to the ordinary and common acceptation thereof. And again, in Bailey v. Lloyd, 5 Russ. 330, 341, the court held, that the question of the execution of a power by a will, was a mere question of intention, and that intention was to be collected, not from a particular expression, but from the whole will. See 4 Kent, Comm. (4th Ed.) Lecture 62, pp. 333, 334.
Now, Sir Edward Clere’s Case, 6 Coke, 18, is not only unquestionable law, and has so been always held; but it affords a strong illustration of the true doctrine. In that case, it was held, that the power was well executed, notwithstanding it was not referred to, because otherwise the devise in the will would be inoperative and void. The testator had no estate in the property devised, but only a power over it; and so, ut res magis valeat, quam pereat, it was held, that he intended to execute the power. Nor is there any objection to the doctrine of Lord Chief Justice Hobart, in the Commendam Case, Hob. 159, 160, that if an act will work two ways, the one by an interest, the other by an authority or power, and the act be indifferent, the law will attribute it to the interest, and not to the power. This is but saying, in other words, that where the terms of a devise are perfectly satisfied and inoperative, without any reference to the execution of a power, by working on the interest of the testator in the land, there it shall not be deemed, that he intended to execute the power; but merely to pass his interest. This proceeds upon the plain ground, that there is nothing in the will, which shows any intention to execute the power; and in cases of doubt the court cannot deem it a good execution of the power. Id.
Sir Edward Sugden (1 Sugd. Powers, c. 6, § 7, pp. 402, 428) has critically examined and commented upon all the leading authorities; and it appears to me, that his criticisms (and he is himself a very high authority upon this subject) are entirely well founded. The courts have, indeed, as he abundantly proves, proceeded in some cases upon very-narrow and technical grounds, and in others have adopted a more liberal and just interpretation; and the ¿ases do not all well stand together. The rule of ascertaining the intention, however, has been recognized at all times; and, as Lord Kenyon has well observed, in Pomery v. Partington, 3 Term R. 674, 675, if the judges, in construing the particular words of different powers, have appeared to make contradictory decisions at different times, it is not, that they have denied the general rule; but because some of them have erred in the application of the general rule to the particular case before them. In a conflict of authorities, I own, that I should choose to follow those, which appear best founded in the reason and analogies of the law. But, in cases of wills, where the intention is to govern, no authorities ought to. control the interpretation, which the court is called upon to make, unless all the circumstances are the same in both cases, and the ground of interpretation in one is entirely satisfactory to the mind, as applied to the other. If I were compelled to decide between the cases of Wallop v. Portsmouth, 1 Sugd. Powers, p. 394, c. 6, § 7; Hurst v. Winchelsea, 2 Ld. Keny. 444, by Harmer; Standen v. Standen, 2 Ves. Jr. 589; Lewis v. Lewellyn, 1 Turn. & R. 104; and the case of Jones v. Curry, 1 Swanst. 66, — if there be any dissonance between them, I should much incline to follow the former. But, in my view, all these cases stand upon their own particular circumstances, and neither is exactly like the present.
We must dispose of this case, then, upon principle; for I cannot admit, that it is governed by any positive controlling authority, or that it will trench upon any established doctrine, whichever way it is decided.
But before proceeding to discuss the terms of this devise, as an execution of the power, it is indispensable to dispose of an argument greatly pressed at the bar, and that is, that the New London estates, in no proper sense, fall within the scope of the power, which. [568]*568only applies to the original devised property, and not to these substituted New London estates; first, because the resolve itself does not attach the power to any substituted estates after the sale; and secondly, if it does, still the investment in the New7 London estates, being out of the state, was not authorized by the resolve, and, therefore, cannot be deemed an execution of the power, but is an utterly void act. I cannot accede to this interpretation of the terms of the resolve. The language of it is, that Price, the trustee, is ‘‘to invest the net proceeds of said sale in other real estate, to be held by him upon the like trusts, and for the same uses and purposes as the estate above described is now7 liolden.” It seems to me impossible to entertain any real doubt, that the substituted estate wras to be held upon precisely the same trusts, as the original estate, by the will of Sirs. Hall. The original estate was held expressly in trust for the use of Sirs. Blagge during her natural life, subject to her absolute disposal by her last will and testament, and if she should die without having disposed of the same, then the remainder and reversion to be to her heirs for ever. The language, then, of I the resolve, is not only appropriate to fasten ' upon the substituted estate the like trusts, i uses, and purposes as were attached to the original estate; but I am at a loss to understand, w'hat other words could have been more directly expressive for this purpose. The power was attached to the original estate, and was to be served out of the original trust for the uses and purposes therein stated; and the moment the power was executed, it created a direct trust and use in fayor of the appointees. The case of Wallop v. Portsmouth, 1 Sugd. Powers (6th Ed.) p. 394, c. 6, § 7, art. 34, seems to be strongly in point.
The other part of the argument may have a better foundation in law. It may be true, that the trustee had no right to invest the proceeds of the sale in any real estate out I of the commonw'ealth of Massachusetts; and yet, if that investment has been adopted by the appointees under the power, and the power has been well executed, third persons have no right to interpose and object to it. It amounts, at most, but to a wrongful conversion of trust property, which, however, may, at the election of the cestui que trust, be followed, and the trusts attached thereto in the hands of the persons, holding the property. Nothing is more common in courts of equity, than for the cestui que trust, upon a wrongful conversion of the trust fund to follow it in its new forms, and hold it subject to the original trust. 2 Story, Eq. Jur. §§ 1258-1266. and cases there cited.
But it is wholly unimportant, in the present case, whether the investment was rightful or wrongful on the part of the trustee, so far as the present controversy is concerned. It was adopted and sanctioned by Mrs. Blagge, as an investment properly made, and upon the identical trusts created by the will of Mrs. Hall, and authorized in the substituted estate by the resolve. In making her own will, and therein devising the New7 London estate, Mrs. Blagge manifestly intended to execute the power reserved to her, (in conformity to the original trusts,) contained in the deeds of these estates to Price. - She had no other right or title in or over the same to give effect to her devise; and this devise must, therefore, if at all, take effect solely as an execution of this power over the substituted property, as to this estate; and in this respect, then, the case falls directly within the rule already adverted to. It is a case, where, although the power is not referred to in terms, yet the subject matter is expressly disposed of, and the will is void and inoperative, except as an execution of the power.
The whole question is then nan-owed down to the mere consideration, -whether Mrs. Blagge intended a mere partial execution of the po-wer, -quoad the New London estate, or meant a full and entire execution of the ■whole power over all the property, to which it -was attached. She speaks of this estate indeed as her own estate, “my house and land lying in New London;” but this does not change the proper interpretation of the words. The language is precisely that, which would ordinarily be used by the donee of a power, absolutely to dispose of the whole property, although without any interest in the property. Lord Loughborough, in Standen v. Standen, 2 Ves. Jr. 589, alluded to such a form of disposition, as not producing the slightest difficulty in construing the devise to be an execution of a pow7er; and this is certainly now7 the received doctrine. But the true bearing of this language in this clause of the will of Mrs. Blagge most strongly applies to illustrate her meaning in the residuary clause, to which I shall presently allude. She treats the New7 London estate as her owrn property; but it w7as her own in the same sense, and in that only, as the other part of the unsold property, devised to her by the will of Mrs. Hall, that is, her property, as possessing the absolute pow7er to dispose of it by her owrn will.
Now, immediately after the devise of the New London estate comes the residuary clause. “All the rest and residue of my estate of every nature and kind, I give, devise, and bequeath, as follows: viz. one third part to my daughter, Sarah Miles, and her heirs for ever; one third part to my- daughter, Margaret C. Drane, and her heirs, for ever; one third part to my daughter, Eliza J. Caldwell, and her heirs and assigns, for ever.” I do not dwell upon the circumstance, that here the language used, “heirs and assigns,” applies peculiarly and emphatically to a devise of real estate: nor do I contrast it with the peculiar language in the numerous pecuniary legacies, named in [569]*569the preceding part of the will, where the words “heirs and assigns” are wholly omitted. Nor do I rely upon the fact, that the personal estate of Mrs. Blagge at her death, was insufficient to discharge these legacies; for that circumstance alone would not affect the present question; as, from the nature and fluctuation of personal estate, the amount, which would be assets at the death ■of the testatrix, must always be somewhat conjectural; and, on that account, has not, like real estate, been supposed to be within the contemplation of the testatrix as a specific bequest. Sugd. Powers (6th Ed.) c. 6, § 7, arts. 32, 33, pp. 393, 394; Andrews v. Emmot, 2 Brown, Ch. 297; Standen v. Standen, 2 Ves. Jr. 594; Doe v. Roake, 2 Bing. 497, 510; Jones v. Curry, 1 Swanst. 66, 71, 72.
But what may be relied upon is this, that Mrs. Blagge died possessed of no other real estate than that, which was attached to the power, and disposable by her under the same. Under such circumstances, if instead •of the words “the residue of my estate of every name and nature,” she had said, “the residue of my estate, real as well as personal,” it was admitted at the argument, and, indeed, is conclusively established by the authorities, that the residuary clause would have operated upon the real estate, subject to the power, since in that way, and in that way alone, could it be operative. Sudg. Powers (6th Ed.) c. 6, § 7, arts. 33-38, pp. 393, 394. And, therefore, to effectuate the intent, it must be construed as a due ■execution of the power. The case of Standen v. Standen, 2 Ves Jr. 589, which was affirmed in the house of lords, would be ■dp'dsive on this point; and, indeed, it is but following out the principle of Sir Edward Clere’s Case, 6 Coke, 18. See, also, Doe v. Roake, 2 Bing. 509, 510.
There is no doubt, that the words “all the residue of my estate of every nature - and kind,” in Mrs. Blagge’s will, are sufficient to pass real estate; and if she had left any interest in real estate, in her own right, that interest would have passed by the devise. This doctrine is clear upon the general principles applied to the interpretation of wills, and is also fully borne out by the authorities. It was admitted in Jones v. Curry, 1 Swanst 66, 72, 73, and recognized in the very recent case of Saumarez v. Saumerez, 4 Mylne & C. 340. See, also, Church v. Mundy, 15 Ves. 396, and Doe v. Morgan, 6 Barn. & C. 516. Still, however, as the word “estate” is nomen generalissimum, it may be satisfied by the mere bequest of personal property, if the testator has no real estate, upon which it can operate; and. therefore, a residuary clause of this sort is not, per se, decisive as an execution of a power, as it may operate without touching real estate in the power of the party, but not-in his interest.
But the view, which I take of the clause, is this, that it may include real estate, if the testator has any; and if the language then may justly admit of this interpretation, then we have a right to look to see, whether the testatrix did not, from other parts of the will, naturally, if not necessarily, mean to apply the residuary clause to real estate. If she did so intend, and it can be clearly seen, from the other provisions in the will, then it is the duty of the court to carry that intention into effect; and if it cannot be, except as an execution of the power, then it amounts to a due execution thereof. Now, it is precisely here, in my judgment, that the whole stress of the case lies. When I see, that1 Mrs. Blagge has, in the preceding clause of the will, executed the power, specifically, over certain real estate within the scope of the power, calling it “my house and land,” and then immediately adding, “all the rest and residue of my estate of every nature and kind,” it is plain to me, that she contemplated all the real estate within the scope of the power, as her own estate, and subject to her own absolute disposal, and that she intended to dispose of all of it by her will, by the very words, which she has used. I am not bold enough to fritter away such an intention, coupled with such acts, by resorting to any technical niceties and refinements. They partake too much of subtlety, and artificial distinctions, (and I say it with the utmost deference for other judgments,) to suit a just or even a reasonable administration of private justice. The case of Walker v. Mackie, 4 Russ. 76, was one of far less stringent circumstances; and yet the then master of the rolls (Sir John Leach) held the will a good execution of the power. In that case, the testatrix had power to appoint, by will, a certain leasehold estate, and certain 3 per cent, stock, standing in the name of the accountant general in chancery, she being entitled to both during her life. By her will, after certain pecuniary legacies, she gave “All the rest and residue of her bank stock to her daughter A., with her wearing apparel, goods, and chattels of every kind whatsoever, and all other property she possessed at the time of her decease, excepting £50 of her bank stock, which she gave there-out to her executors.” It was proved, that she had no bank stock, nor any stock whatsoever, except the stock in court. The master of the rolls held, that the will was a due execution of the 3 per cent, stock, and also of the leasehold estate. I am aware, that in a later case (Hughes v. Turner, 3 Mylne & K. 666, 697), his successor (Sir C. C. Pepys) disapproved of that decision. But I confess, that I am not prepared to join in this disapproval; and it be not reconcilable with Webb v. Honnor, 1 Jac. & W. 352, or rather with a dictum of Sir Thomas Plumer in that case, I am not at all disposed to surrender to the authority of the latter. See Sir Edward Sug-den's remarks on this latter case. 1 Sugd. Powers (6th Ed.) c. 6, § 7, art. 28, p. 390. Be this as it may, the present case differs [570]*570from all these three cases in its circumstances, and, therefore, is not governed by the authority of either of them, whatever may be their weight.
NOTE (from original report]. It may not be unimportant to state, that all these refined and subtile distinctions, in relation to the execution of powers, are now swept away in England by the statute of wills (7 Wm. IV., and 1 Viet, c. 26, § 27), which has declared, that a general devise of real or personal estate, shall operate as an execution of a power of the testator over the same, unless a contrary intention shall appear on the will. The doctrine, therefore, has at last settled down in that country, to what would seem to be the dictate of common sense, unaffected by technical niceties. J. S.
The judgment of Sir Thomas Plumer, M. R., in Jones v. Curry, 1 Swanst. 66, has been greatly relied on, at the argument, as directly in point against the present case being a due execution of the power. I have already had occasion to suggest, that it is not so in point; but is fairly distinguishable in its circumstances. The language there was not the same, nor the power the same, nor the facts the same. There seems to me to be great force in the criticism of Sir Edward Sugden on that case. If the words were not sufficient to pass real estate, (which they clearly were,) the point did not arise. If they were sufficient, the case does not appear to have been well decided; for if they were sufficient to pass real estate, and the testatrix had none but under the power, then it might plainly be presumed, that she intended to pass real estate by her will; and if so, it could only be by an execution of the power. Sugd. Powers, (6th Ed.) c. 6, § 7, p. 425. Besides; Sir Thomas Plu-mer, in that case, strongly relied upon the fact, that there was no language in the will of the testatrix, which showed any intention to execute the power, even in relation to the personalty. There was no clear case of an intended part execution of the power. Here, the contrary is established; and the testatrix has executed her power as to the New London estate. And I cannot but consider the language of Sir William Grant, in Bennett v. Aburrow, 8 Ves. 609, 616, to contain the true doctrine; and it is strictly applicable to the present case. “This, (said that great judge,) is always a question of intention, whether the party meant to execute the power, or not. Formerly it was sometimes required that there should be an express reference to the power. But that is not necessary now. The intention may be collected from other circumstances; as, that the will includes something the party had not otherwise, than under tne power of appointment; that a part of the will would be wholly inoperative, unless applied to the power.”
Upon the whole, my opinion is, that the will of Mrs. Blagge was a complete execution of the power, as to the premises in question; and, therefore, that judgment ought to be entered for the tenant