Green, C. J.
Daniel Snowhill died seized of the premises in question. By his original will, bearing date on the 7th of February, 1842, he devised the land to the children of his deceased son, William, in fee simple. At the date of the will the children were minors, and their mother (the widow of William Snowhill) was in possession of the premises. The will directed that the executors should act as guardians of the children, and hold the property devised to them until the youngest child should arrive at age, in trust, to appropriate the income to keeping the property in repair, and the residue to the maintenance and education of the children. In case the income was insufficient for that purpose, the executors were further authorized, if in their opinion it became indispensably necessary, to dispose of the property devised, aud to appropriate so much of the property as might be necessary to the support and education of the children. The will further directed, that so long as the mother of the children should remain a widow, and should choose to occupy the property, and use its proceeds for the support and education of the children, she might be permitted to do so. It is admitted that the defendant has remained a widow since the death of her husband, William Snowhill, and that, since the death of the testator, she has resided upon the premises in question, and appropriated the rents and profits thereof to the support and education of her children, some of whom are still minors.
It is clear that, by the terms of the original will, the fee simple of the land in question was vested in the children of William Snowhill; that the right to the possession and enjoyment of the land, during the minority of the children, was vested in their mother, subject to the conditions prescribed in the will ; aud that, upon the performance of those conditions, she had the right to the possession and enjoyment of the land [454]*454uncontrolled by the executors, until the youngest child came of age. The direction, that, upon the performance of the conditions specified, “she may be permitted" to occupy the property, was not designed to make her right of possession subordinate to that of the executors, or dependent upon their permission. The obvious design and meaning of the clause is, that her right to the possession should depend solely upon the performance, by her, of the prescribed conditions. Upon the performance of those conditions, her right of possession became absolute, and paramount to that of the executors. Their right of possession is subordinate, and arises only upon the failure of the widow to comply with the conditions prescribed.
If this clause of the original will remains in force, the case is clear against the plaintiffs. The material question is, whether this provision of the will is not revoked by the codicil bearing date on the 7th of July, 1845.
There is no revocation, in express terms, of the disposition of the land in question contained in the original will, nor is it necessary that there should be. If the subsequent disposition of the land be inconsistent with the former, it operates necessarily as a revocation. 1 Powell on Devises 517 ; 1 Jarman on Wills 156.
But it is an established rule not to disturb the dispositions of the will further than is necessary for the purpose of giving effect to the codicil. 1 Jarman on Wills 160.
In the application of these principles to the case under consideration, it is clear that the codicil operates as a revocation of the devise of the land to the children of William Snowhill. The testator directs, that “instead of" the devise made in the will to them, the lands devised shall be sold by his executors, as soon as they can dispose of the same to- advantage, and that out of the proceeds William’s children shall receive $3000, if t-he sale amount to so much, or whatever amount less than $3000 may be realized from the sale. The codicil does not leave it in the discretion of the executors, or dependent on a given contingency, (as under the original devise) to make sale of the land, but contains a peremptory direction that the land be sold as soon as it could be disposed of to ad[455]*455vantage, and the proceeds, not exceeding $3000, be paid to the original devisees, the excess of the sale, if any over that amount, falling into the residue of his estate. The devise of the will and the directions of the codicil are utterly inconsistent, and cannot stand together.
But it is insisted, that though the devise to the children be revoked, yet it is not necessary, in order to give effect to the codicil, to disturb the directions of the will ; that the mother shall enjoy the property for the support of her children, so long, at least, as the property remains unsold. The direction, that the mother occupy the property, was founded upon the devise to her children. She was to occupy it as their land, for their support and maintenance during their minority. The directions, that the executors should hold the property during the minority of the children, and that the widow, at her election, might occupy during her widowhood, are part and parcel of the devise to the children, containing merely directions for the advantageous management of the land devised during the minority of the devisees. An order to sell the land and a revocation of (die devise are clearly inconsistent with the right of the trustees or of the widow to hold the property until the youngest child should attain his majority. If such claim had been set up by the executors, it would have operated to the prejudice of the rights of the older children under the codicil, and the executors might have been compelled to make sale. It is not perceived that the case is really different in respect to the widow.
This being the case, the widow cannot defend under any right of possession vested in her under the will.
But it is incumbent upon the plaintiffs to show not only that the defendant is not entitled to the possession, but that they are. They must recover upon the strength of their title, not upon the weakness of hers. Have they shown title?
They take nothing by virtue of any devise to them as executors, either under the will or under the codicil. The authority to make sale of the land in question is a naked power, not coupled with an interest. It vests in them no title to the land. It confers upon them no present right of possession.
[456]*456Until the sale be made, the title and the right of possession descend to the heirs-at-law., 2 Coke Litt. (Thomas) Book 2, ch. 27, p. 118; 2 Shep. Touch. 148; 1 Pow. on Dev. 233; 4 Kent’s Com. 320; 9 John. R. 104, Jackson v. Burr ; 1 Green’s Chan. R. 108, Gest v. Flock.
The lessors of the plaintiff, therefore, cannot recover by-virtue of any title vested in them under the will, either as executors or guardians of the children of William Snowhill, deceased .
By the evidence produced on the trial, it appears that the heirs-at-law of the testator are five in number, of whom one of the lessors of the plaintiff and the wife of the other lessor are two, and that they are consequently the legal owners of two-fifths of the premises in dispute. This evidence was offered and received after the cause had been argued and the opinion of the court pronounced upon the title of the plaintiffs,' as originally adduced under the will of Daniel Snowhill.
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Green, C. J.
Daniel Snowhill died seized of the premises in question. By his original will, bearing date on the 7th of February, 1842, he devised the land to the children of his deceased son, William, in fee simple. At the date of the will the children were minors, and their mother (the widow of William Snowhill) was in possession of the premises. The will directed that the executors should act as guardians of the children, and hold the property devised to them until the youngest child should arrive at age, in trust, to appropriate the income to keeping the property in repair, and the residue to the maintenance and education of the children. In case the income was insufficient for that purpose, the executors were further authorized, if in their opinion it became indispensably necessary, to dispose of the property devised, aud to appropriate so much of the property as might be necessary to the support and education of the children. The will further directed, that so long as the mother of the children should remain a widow, and should choose to occupy the property, and use its proceeds for the support and education of the children, she might be permitted to do so. It is admitted that the defendant has remained a widow since the death of her husband, William Snowhill, and that, since the death of the testator, she has resided upon the premises in question, and appropriated the rents and profits thereof to the support and education of her children, some of whom are still minors.
It is clear that, by the terms of the original will, the fee simple of the land in question was vested in the children of William Snowhill; that the right to the possession and enjoyment of the land, during the minority of the children, was vested in their mother, subject to the conditions prescribed in the will ; aud that, upon the performance of those conditions, she had the right to the possession and enjoyment of the land [454]*454uncontrolled by the executors, until the youngest child came of age. The direction, that, upon the performance of the conditions specified, “she may be permitted" to occupy the property, was not designed to make her right of possession subordinate to that of the executors, or dependent upon their permission. The obvious design and meaning of the clause is, that her right to the possession should depend solely upon the performance, by her, of the prescribed conditions. Upon the performance of those conditions, her right of possession became absolute, and paramount to that of the executors. Their right of possession is subordinate, and arises only upon the failure of the widow to comply with the conditions prescribed.
If this clause of the original will remains in force, the case is clear against the plaintiffs. The material question is, whether this provision of the will is not revoked by the codicil bearing date on the 7th of July, 1845.
There is no revocation, in express terms, of the disposition of the land in question contained in the original will, nor is it necessary that there should be. If the subsequent disposition of the land be inconsistent with the former, it operates necessarily as a revocation. 1 Powell on Devises 517 ; 1 Jarman on Wills 156.
But it is an established rule not to disturb the dispositions of the will further than is necessary for the purpose of giving effect to the codicil. 1 Jarman on Wills 160.
In the application of these principles to the case under consideration, it is clear that the codicil operates as a revocation of the devise of the land to the children of William Snowhill. The testator directs, that “instead of" the devise made in the will to them, the lands devised shall be sold by his executors, as soon as they can dispose of the same to- advantage, and that out of the proceeds William’s children shall receive $3000, if t-he sale amount to so much, or whatever amount less than $3000 may be realized from the sale. The codicil does not leave it in the discretion of the executors, or dependent on a given contingency, (as under the original devise) to make sale of the land, but contains a peremptory direction that the land be sold as soon as it could be disposed of to ad[455]*455vantage, and the proceeds, not exceeding $3000, be paid to the original devisees, the excess of the sale, if any over that amount, falling into the residue of his estate. The devise of the will and the directions of the codicil are utterly inconsistent, and cannot stand together.
But it is insisted, that though the devise to the children be revoked, yet it is not necessary, in order to give effect to the codicil, to disturb the directions of the will ; that the mother shall enjoy the property for the support of her children, so long, at least, as the property remains unsold. The direction, that the mother occupy the property, was founded upon the devise to her children. She was to occupy it as their land, for their support and maintenance during their minority. The directions, that the executors should hold the property during the minority of the children, and that the widow, at her election, might occupy during her widowhood, are part and parcel of the devise to the children, containing merely directions for the advantageous management of the land devised during the minority of the devisees. An order to sell the land and a revocation of (die devise are clearly inconsistent with the right of the trustees or of the widow to hold the property until the youngest child should attain his majority. If such claim had been set up by the executors, it would have operated to the prejudice of the rights of the older children under the codicil, and the executors might have been compelled to make sale. It is not perceived that the case is really different in respect to the widow.
This being the case, the widow cannot defend under any right of possession vested in her under the will.
But it is incumbent upon the plaintiffs to show not only that the defendant is not entitled to the possession, but that they are. They must recover upon the strength of their title, not upon the weakness of hers. Have they shown title?
They take nothing by virtue of any devise to them as executors, either under the will or under the codicil. The authority to make sale of the land in question is a naked power, not coupled with an interest. It vests in them no title to the land. It confers upon them no present right of possession.
[456]*456Until the sale be made, the title and the right of possession descend to the heirs-at-law., 2 Coke Litt. (Thomas) Book 2, ch. 27, p. 118; 2 Shep. Touch. 148; 1 Pow. on Dev. 233; 4 Kent’s Com. 320; 9 John. R. 104, Jackson v. Burr ; 1 Green’s Chan. R. 108, Gest v. Flock.
The lessors of the plaintiff, therefore, cannot recover by-virtue of any title vested in them under the will, either as executors or guardians of the children of William Snowhill, deceased .
By the evidence produced on the trial, it appears that the heirs-at-law of the testator are five in number, of whom one of the lessors of the plaintiff and the wife of the other lessor are two, and that they are consequently the legal owners of two-fifths of the premises in dispute. This evidence was offered and received after the cause had been argued and the opinion of the court pronounced upon the title of the plaintiffs,' as originally adduced under the will of Daniel Snowhill. This evidence was objected to as inadmissible, on the ground that it was offered after the cause had been argued and the opinion of the court pronounced, and that it presented a ground of recovery entirely inconsistent with the claim of the plaintiffs, as originally presented and relied upon. It is not denied that the evidence in itself is competent. The objection addresses itself merely to the conduct of the cause at the circuit, a matter resting exclusively in the discretion of the judge by whom the' court was held, with which this court cannot interfere. Nor is there any ground of interference. The discretion appears to have been wisely and fairly exercised, not to the prejudice of the defendant.
But admitting the title of the plaintiffs, are they in a position to recover? They recover, if at all, upon a strict legal-title, not upon the ground that they have any just claim to the enjoyment of the land or to the rents and profits, but on the. ground that, as heirs-at-law, they have the title, and consequently the right of possession, until the land is sold in pursuance of the directions of the will; standing upon the apices litigandi, it is necessary that their right of recovery should be strictly legal.
[457]*457It appears that the widow had been in possession of the land in question several years before the death of the testator, and that she continued in possession after his death until the commencement of this suit. No lease or tenancy for a definite period being shown to exist, she is to be regarded as a tenant from year to year ; and, in the absence of any specific contract as to the termination of her tenancy, she was entitled to a notice to quit before she could be treated as a trespasser and subjected to costs and damages in a suit at law. Den v. McKay, Penn. 420 ; Den v. Depue, 6 Halst. 409 ; Den v. Drake, 2 Green 523 ; Jackson v. Bryan, 1 John. R. 322.
It is said that the defendant denied the plaintiff’s title, and claimed adversely, and that in such case no notice is necessary. But how does that fact appear ? The lessors of the plaintiff claimed originally the whole premises under the will of Daniel Stiowhill. Upon that claim they relied until the decision of the court was pronounced against them. That claim the defendant resisted, and successfully. But it does not appear that she ever denied or questioned their tille as heirs-at-law to two-fifths of the premises. There is no proof of any disclaimer of tenancy by the defendant of the shares for which the lessors of the plaintiff now show they are entitled, and consequently no forfeiture of her right to notice to quit.
Judgment must be entered for the defendant.
Njsvius and Ogden, Justices, concurred.
Cited in Romaine v. Hendrickson’s Ex’rs, 9 C. E. Gr. 237.