Jackson ex dem. Ellsworth v. Jansen

6 Johns. 73

• Court: New York Supreme Court
• Decided: May 15, 1810
• Status: Published

Opinion

Per Curiam.

It is unnecessary, at present, to take notice of the first point which was raised and argued in this case, because, if it were to be admitted, that a power to sell, unaccompanied with a devise of an interest in the land, will survive, the intent of the testator is here apparent, that the sale by his executors should be made in the life-time of his wife. The intent is much regarded in the construction of these powers; and from several of the cases it would seem, that the power was construed with greater or less latitude, as would best meet this intent. After giving the power to sell, the testator directs, that when his executors shall have so disposed of his estate, they shall put the moneys at interest, on good security, and pay the interest annually to his wife, who is also appointed one of the executors. The great object of the power was to make provision for the wife ; and if it was not exerted in her life-time, the intention is plain, that it was not to be exerted at all. It was granted upon the condition, necessarily implied, that it should be exercised for her benefit.

On this ground, then, even if the other was not tenable, the plaintiff is entitled to recover.

Judgment for the plaintiff.