The opinion of the Court was delivered by
Kennedy, J.
The first question arising out of this case, as stated, is whether the deed of conveyance from Archibald M’Allister to Robert Coleman, bearing date the 10th of April 1805, can be considered a good execution of the power contained in the will of Hugh Hay, dated the 24th of May 1777, authorising his executors, in case his daughter Margaret, to whom he had devised, by a previous clause of his will, the land mentioned and transferred by the said conveyance, “to her, her heirs and assigns for ever,” should die without issue, to sell the whole of his estate, of which the land formed a part; and that the money arising therefrom should, after the decease of his widow, his executors being first satisfied for their trouble, be equally divided among his brother Patrick’s, and his sisters Buchanan and Morrison’s sons, share and share alike. Various objections seem to present themselves to the deed of conveyance being held an execution of the power: First, Because, although Archibald M’Allister was, at the time of his executing the deed, administrator cum testamento annexo of the testator, yet it appears ■very clearly from the face of the deed that it was not his intention, by means of it, to execute the power to sell under the will. By his having become the husband of Margaret, the devisee of the land, and having had by her issue capable of inheriting it, he upon his wife’s death, notwithstanding the previous death of her issue, became tenant for life of the land by curtesy. His life estate thus acquired, which extended to the whole of the land, after reciting the manner in which he had become invested with it, he conveys distinctly and expressly by the deed as an interest which he had in himself without referring to the power; so that upon the ground of . intention, as clearly expressed as it was possible on his part, as well [209]*209as the principle which is uncontrovertibly settled, that where a man has both a power and an interest, and does an act even generally, and not specially, as it would seem to have been done in this case, as owner of the land, without reference to his power, the land shall pass by virtue of his ownership. 1 Sugden on Powers 430; 15 Law. Lib. 229. Then by the same duty, after showing by a recital therein, that he had also become, as he conceived, the owner of the remainder in fee of an undivided moiety of the land, he thereby conveys it also without referring to the power, and in terms which seem very clearly to exclude it. It is plain that Archibald M’Allister, at the time of executing the deed of conveyance to Robert Coleman, conceived himself invested with the absolute and indefeasible right to the remainder in fee of an undivided moiety of the land by means of the deed of conveyance made to him by James Buchanan, on the 17th of December 1804, and the deeds of conveyance made previously to Buchanan by the sons of the testator’s brother Patrick Hay, and by his two sisters, Rebecca Buchanan, wife of the said James Buchanan, and Margaret Morrison, with the exception of Patrick Morrison, one of the sons of Margaret Morrison, who never parted with his right in any way, as will be shown in the sequel, to the money arising from the sale of the land, to be made under the will, in the event of the testator’s daughter Margaret dying without issue. But then it is more than probable that M’Allister was made to believe, when he received the deed of conveyance to himself from Buchanan, that the three sons therein named of Margaret Morrison were all that she ever had or that were then living, because they are mentioned in such way as to raise that belief. And for the same reason that M’Allister considered himself entitled to the remainder in fee of an undivided moiety of the land at the time he sold and conveyed it to Coleman, he must have believed that Peter Gloninger was the owner of the other moiety, who derived his claim or title to it in like manner from James Buchanan. The conveyances from the nephews of the testator to Buchanan, already alluded to, embraced all the land, and were made with a view no doubt to invest him with a right to the remainder in fee in the whole of it. Mr Sugden, in his treatise on powers, vol. i, 440, says, “ It is intention then, that in these cases governs; therefore, where it can be inferred that the power was not meant to be exercised, the court cannot consider it as executed.” Here then it is almost morally impossible to infer that M’Allister, supposing him to have been capable of exercising the power in the will at the time,intended to do so; because, under the power, his authority to sell extended to the remainder in fee in the whole of the land, but his conveyance is limited to an undivided moiety thereof, which he undertakes to show by a recital in the deed, he had become the absolute owner of, and as such, and in fact not otherwise, he thereby intended to convey it. But it may perhaps be said, that intention is made the test only where the grantor has such estate or interest as he undertakes to convey, and. [210]*210at the same time, also a power to convey the same; and not to the case where he mistakingly supposes himself to have such interest; because, having shown clearly, as it may be argued, by his deed that it was his intention to transfer such interest at all events, and therefore by any means within his power, the conveyance will be referred to the power so as to render it effectual. Admitting this, then to be the rule, a second objection arises, that it was not competent for him to exercise the power without relinquishing all his right in the land and giving the whole proceeds of the sale to the nephews. By the will it is dear that the testator gave his daughter an estate tail in the land, and as long as that estate endured, it is also equally clear that he did not intend the land should be sold; but upon the determination of that estate, from a failure of issue upon her part, it would seem to have been his wish that the fee simple estate in the land should then be sold and the money arising therefrom distributed among his nephews. But before the arrival of the time when the nephews should become entitled to receive the money in possession, there is no reason to believe that it was the intention of the testator that a sale should be made. It is perfectly manifest that it was not to be sold, at any time, for the benefit of his daughter, her issue or that of any other, who might acquire an interest in it by marriage with her. It was directed to be sold for the exclusive purpose of giving to his nephews the immediate benefit of the money arising from the sale; and, when sold for that purpose, it cannot be doubted but it was his desire that it should be sold for the highest and best price that could be obtained for it. Then, in order to meet the intention of the testator and fulfil his wishes in this respect, it is clear that a sale, under the power contained in the will, could not be effected until after the death of M’Allister; because, until his life estate was determined, the full value or price of the fee simple estate in possession in it, eould neither have been ascertained nor had for it. And even if it could, unless it had been paid over to them immediately, it might have been dissipated and lost to them, contrary to the design of the testator, as they could not have demanded or compelled the payment of it during the life of M’ Allister, the tenant for life. This view of the question here derives support from a late decision of the court of exchequer in Meyrick v. Coutts, 1 Sugden on Powers
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The opinion of the Court was delivered by
Kennedy, J.
The first question arising out of this case, as stated, is whether the deed of conveyance from Archibald M’Allister to Robert Coleman, bearing date the 10th of April 1805, can be considered a good execution of the power contained in the will of Hugh Hay, dated the 24th of May 1777, authorising his executors, in case his daughter Margaret, to whom he had devised, by a previous clause of his will, the land mentioned and transferred by the said conveyance, “to her, her heirs and assigns for ever,” should die without issue, to sell the whole of his estate, of which the land formed a part; and that the money arising therefrom should, after the decease of his widow, his executors being first satisfied for their trouble, be equally divided among his brother Patrick’s, and his sisters Buchanan and Morrison’s sons, share and share alike. Various objections seem to present themselves to the deed of conveyance being held an execution of the power: First, Because, although Archibald M’Allister was, at the time of his executing the deed, administrator cum testamento annexo of the testator, yet it appears ■very clearly from the face of the deed that it was not his intention, by means of it, to execute the power to sell under the will. By his having become the husband of Margaret, the devisee of the land, and having had by her issue capable of inheriting it, he upon his wife’s death, notwithstanding the previous death of her issue, became tenant for life of the land by curtesy. His life estate thus acquired, which extended to the whole of the land, after reciting the manner in which he had become invested with it, he conveys distinctly and expressly by the deed as an interest which he had in himself without referring to the power; so that upon the ground of . intention, as clearly expressed as it was possible on his part, as well [209]*209as the principle which is uncontrovertibly settled, that where a man has both a power and an interest, and does an act even generally, and not specially, as it would seem to have been done in this case, as owner of the land, without reference to his power, the land shall pass by virtue of his ownership. 1 Sugden on Powers 430; 15 Law. Lib. 229. Then by the same duty, after showing by a recital therein, that he had also become, as he conceived, the owner of the remainder in fee of an undivided moiety of the land, he thereby conveys it also without referring to the power, and in terms which seem very clearly to exclude it. It is plain that Archibald M’Allister, at the time of executing the deed of conveyance to Robert Coleman, conceived himself invested with the absolute and indefeasible right to the remainder in fee of an undivided moiety of the land by means of the deed of conveyance made to him by James Buchanan, on the 17th of December 1804, and the deeds of conveyance made previously to Buchanan by the sons of the testator’s brother Patrick Hay, and by his two sisters, Rebecca Buchanan, wife of the said James Buchanan, and Margaret Morrison, with the exception of Patrick Morrison, one of the sons of Margaret Morrison, who never parted with his right in any way, as will be shown in the sequel, to the money arising from the sale of the land, to be made under the will, in the event of the testator’s daughter Margaret dying without issue. But then it is more than probable that M’Allister was made to believe, when he received the deed of conveyance to himself from Buchanan, that the three sons therein named of Margaret Morrison were all that she ever had or that were then living, because they are mentioned in such way as to raise that belief. And for the same reason that M’Allister considered himself entitled to the remainder in fee of an undivided moiety of the land at the time he sold and conveyed it to Coleman, he must have believed that Peter Gloninger was the owner of the other moiety, who derived his claim or title to it in like manner from James Buchanan. The conveyances from the nephews of the testator to Buchanan, already alluded to, embraced all the land, and were made with a view no doubt to invest him with a right to the remainder in fee in the whole of it. Mr Sugden, in his treatise on powers, vol. i, 440, says, “ It is intention then, that in these cases governs; therefore, where it can be inferred that the power was not meant to be exercised, the court cannot consider it as executed.” Here then it is almost morally impossible to infer that M’Allister, supposing him to have been capable of exercising the power in the will at the time,intended to do so; because, under the power, his authority to sell extended to the remainder in fee in the whole of the land, but his conveyance is limited to an undivided moiety thereof, which he undertakes to show by a recital in the deed, he had become the absolute owner of, and as such, and in fact not otherwise, he thereby intended to convey it. But it may perhaps be said, that intention is made the test only where the grantor has such estate or interest as he undertakes to convey, and. [210]*210at the same time, also a power to convey the same; and not to the case where he mistakingly supposes himself to have such interest; because, having shown clearly, as it may be argued, by his deed that it was his intention to transfer such interest at all events, and therefore by any means within his power, the conveyance will be referred to the power so as to render it effectual. Admitting this, then to be the rule, a second objection arises, that it was not competent for him to exercise the power without relinquishing all his right in the land and giving the whole proceeds of the sale to the nephews. By the will it is dear that the testator gave his daughter an estate tail in the land, and as long as that estate endured, it is also equally clear that he did not intend the land should be sold; but upon the determination of that estate, from a failure of issue upon her part, it would seem to have been his wish that the fee simple estate in the land should then be sold and the money arising therefrom distributed among his nephews. But before the arrival of the time when the nephews should become entitled to receive the money in possession, there is no reason to believe that it was the intention of the testator that a sale should be made. It is perfectly manifest that it was not to be sold, at any time, for the benefit of his daughter, her issue or that of any other, who might acquire an interest in it by marriage with her. It was directed to be sold for the exclusive purpose of giving to his nephews the immediate benefit of the money arising from the sale; and, when sold for that purpose, it cannot be doubted but it was his desire that it should be sold for the highest and best price that could be obtained for it. Then, in order to meet the intention of the testator and fulfil his wishes in this respect, it is clear that a sale, under the power contained in the will, could not be effected until after the death of M’Allister; because, until his life estate was determined, the full value or price of the fee simple estate in possession in it, eould neither have been ascertained nor had for it. And even if it could, unless it had been paid over to them immediately, it might have been dissipated and lost to them, contrary to the design of the testator, as they could not have demanded or compelled the payment of it during the life of M’ Allister, the tenant for life. This view of the question here derives support from a late decision of the court of exchequer in Meyrick v. Coutts, 1 Sugden on Powers 349-50, where the devise was to A, the testator’s wife, for life, and after her death, a power to trustees to sell and pay the money amongst the children of B, who had an infant child then living, the court held that the sale could not be made till after the widow’s decease. It is also sustained, I believe, by the common course and practice of mankind, so far as we have evidence of it. In Lee v. Vincent, Cro. Eliz. 26, Co. Lit. 113, a, a case pretty much like the one under consideration, where John Lee devised land to his son William in tail, and, if he died without issue, directed that his SQ.ns-in-jaw (having then five) should sell the land; after the [211]*211death of the testator, one of the sons-in-law died, and then William died, leaving issue a daughter, who died afterwards without issue; then the four sons-in-law sold the land, and never thought or supposed that they could have done it before. Two questions were made: First, whether, as the son died leaving issue, though that issue died afterwards without issue, the sale was good; and, Secondly, whether, one of the sons-in-law having died, the sale could be made by the four surviving: and both questions were decided in the affirmative.
The next question which presents itself is, did the letter of attorney, from Patrick Morrison to James Buchanan, bearing date the 21st of June 1780, authorise the latter to convey or transfer any interest which the former had in the land or right to the money which should arise from a sale thereof, made under the will of the testator? It is very clear that the letter of attorney, according to the terms of it, has no application whatever to lands or real estate of any kind, and therefore confers no authority to sell or dispose of such estate. It is “to ask, demand, recover or receive his lawful part of the estate of Hugh Hay, (meaning the testator,) deceased, of the county of Lancaster, &c., giving and granting thereby to his said attorney, his sole and full power and authority to take, pursue and follow such legal course for the recovery, receiving and obtaining the same, as he himself might or could do were he personally present; and upon the receipt thereof, acquittances and other sufficient discharges for him, and in his name to sign, seal and deliver,” &c. Now nothing can be more plain than that the authority, piven by the letter of attorney, extends merely to such portions of the personal estate of the testator as might be coming to the constituent. And besides, the letter of attorney contains no authority to sell or dispose of the constituent’s interest in the personal estate, but to demand and receive it, and to do in his name whatever may be lawful and necessary to obtain and recover it. The deeds, therefore, of James Buchanan, the first bearing date the 25th of February 1793, to John Duffel Hay, and the second bearing date the 17th of December 1S04, to Robert Coleman, had no effect whatever upon the right or interest which Patrick Morrison had either in the real or personal estate of the testator. And even if the letter of attorney had authorized James Buchanan to have sold and assigned the interest of Patrick Morrison in the estate of the testator, neither of the deeds purports to have been executed by Buchanan for Morrison. It is perfectly obvious that they are both executed for and in behalf of himself alone. Patrick Morrison would, therefore, seem to have a right to demand and receive one-seventh part of the money arising from a sale to be made of the land, as directed by the will. It certainly has not been shown that he has ever released or parted with it. The conveyances of the other nephews to James Buchanan, may be sufficient to preclude them from ever setting up any claim to have the land sold on their account under the will; though it [212]*212would seem from their deeds that they misapprehended very much the nature of their claim to, or interest in, the estate. They, in fact, had no interest in the land; each had a right merely to receive a certain proportion of the money that should arise from the sale thereof, when made according to the provisions and directions of the will. Their claims, however, may be considered as assignable in equity for a valuable consideration; and their deeds as sufficient to bind and divest them, in equity at least, of their rights to any money that could be raised from a sale of the land under this power. That they had no right or interest in the land to' convey and transfer, is established not only authoritatively, but satisfactorily, by the cases of Allison v. Wilson’s Executors, 13 Serg. & Rawle 330, and Morrow v. Brenizer, 2, Rawle 188; and more especially by the clear and conclusive reasoning of the chief justice in the latter case.
We therefore think that the court below were right in rendering a judgment for the plaintiff, but that they erred in directing it to be released on the payment of one thousand five hundred and eighty-five dollars, with interest thereon from the 12th day of May 1832. We think the plaintiff, upon the case as stated, entitled to receive the. sum of three thousand one hundred and seventy dollars, with interest thereon from the time the judgment was rendered in the court below; and accordingly direct that the judgment be released on the payment of this sum to the plaintiff, and the costs of the action in the court below, together with the costs which have accrued on the writ of error in this court.
Judgment accordingly.