Milhollen v. Rice

13 W. Va. 510, 1878 W. Va. LEXIS 16

• Court: West Virginia Supreme Court
• Decided: July 6, 1878
• Status: Published

Opinion

GreeN, PRESIDENT,

delivered the opinion of the Court.

William Milhollen died in 1837, leaving a wife but no descendants. He made a will, the true interpretation of which is sought by his personal representative, who instituted this suit for that purpose. By this will the testator appointed his wife his executrix, and bequeathed to her two negroes during her natural life, and directed, that after her death they should be sold, and their pro-ccecls to go to bis heirs. The residue of his personal estate he gave to his wife, “to use o.r dispose of at her' discretion during her natural life; ” and he also provided, that she should have the right of disposing thereof at her death.

There is no controversy with reference to the disposition, made by this will, of the two negroes, the will being clear with regard to the disposition to be made of them. The circuit court put no construction on the provisions of this will, as to the disposition of the residue of his personal estate, as but little, if any of it, remained for distribution. It is however proper, to consider the true meaning of the testator in the disposition of this residue of his personal estate, as it will aid in interpreting his meaning in the clause of his will, whereby he disposes of his real estate, the true construction of which is much controverted.

Syllabus 1. It is settled, that if a testator gives property to a dev-isee or legatee, to use or dispose of at his pleasure, that is to consume or spend, sell or give away, at his pleasure, such devisee or legatee has the fee simple or absolute property, even though his interest in it be called by the will a life estate, and there be a provision in the will, whereby what may remain of the property at the death of the devisee or legatee, is given to another person. See Pushman v. Filliter, 3 Ves. Jr. 7; Bull v. Kingston, 1 Meriv. 214; Attorney General v. Hall, 8 Vin. Abr. 103 50; Bradley v. Westcott, 13 Ves. 445, 457; Sprague v. Barnard, &c. 2 Bro. C. C. 585; Eade v. Eade, 5 Madd. 118; Cuthbert v. Parrier Jacobs, 415, (4 Cond. Eng. Ch. 191); Bourn v. Gibbs, 1 Taml. 414 (5 Com. Eng. Ch. 457); Green v. Harvey, 1 Hare 428 (23 Cond. E. Ch. 428); Huskison v. Bridge, 3 Eng. L & Eq. 180; Ide v. Ide, 5 Mass. 500; Jackson v. Bull, 10 Johns. 19; Jackson v. Robbins, 16 Johns. 537, 589; Helmer v. Shoemaker, 22 Wend. 119; Flinn v. Davis, 18 Ala. 132; Riddicks v. Cohoon, 4 Rand. 547; Madden v. Madden’s ex’r, 2 Leigh 377, 385; Burwell v. Anderson, 3 Leigh , 355; Nelson v. Cooper, 4 Leigh 408; May v. Jones, 20 Gratt. 692; Spinkle et al. v. Hayworth, 26 Gratt. 584.

There can be no doubt, that William Milhollen by his will intended to give to his wife the right to consume or spend, sell or give away, as she pleased all his personal estate, other than the two negroes. If she had but a lile estate in the residue of the personal property, then it would on her death have gone to his distributees, as un-disposed of by his will; that is it would have gone in the precise manner, that his will directs the two negroes to pass. Yet it is obvious, that he intended to give to his wife a larger interest in this residue of the personal estate, than in these two negroes.

It is also obvious, that this distinction made by the will between his other personal property and the two negroes named, did not arise from the different character of the property, for the testator owned a third negro, which by his will was included with the residue of his personal property, over which he gave his wife power to use or consume, sell or give away, as she pleased; for so the words “ to use or dispose of at her discretion during her natural life, and also to have the right of disposal at her death” must be interpreted. She had therefore absolute property in all his personal estate, other than the two negroes, it being the obvious intention of the testator to give her such complete ownership. And she having died intestate, the residue of his personal estate, if any remained on her death, would then pass as her other estate. We will hereafter consider the question, to whom her estate real and personal passed at her death.

Syllabus 2. The next enquiry is: Wh at estate had the testator’s widow in his real property ? Did she have a life estate in one moiety thereof, and a fee simple in the other moiety; or did she have only a life estate in the whole of the testator’s real property ?

It appears, from an elaborate written opinion of the circuit Judge, used in the argument of this cause, though not a part of the record, that the circuit court was of opinion, that she had a fee simple in the one moiety of the testator’s real property. This I think was an erroneous construction of the will. The language of the will disposing of the real property is “ it is my desire, that all the lands belonging to me shall belong to my wife during her natural life, to use in any way she may think proper during her life, and at her death said land is to be sold, and the money arising from said sale, the one half of it to go to my lawful heirs (including Andrew Milhollen, the son of Mary Alternan), and the other half of the moneys arising from said sale is to be at her disposal, to whom she thinks proper of her heirs.” Andrew Mil-hollen was an illegitimate child of one of the' testator’s sisters. He left no child or descendant, but brothers and sisters, or their descendants.

The words of the testator: “ to use in any way, that she may think proper during her life ” are very different from those used by him in disposing of the personalty, other than the two negroes.^ His language with reference to it is : “to use or dispose of at her discretion during her natural life.” And he further provided with reference to this personalty, that she was to have the right of disposing of it at her death. That is, he gave an unlimited power to her to dispose of it, to whomsoever she pleased.But in reference to this moiety of the real estate she had. only the power, to dispose of it to such of her heirs, as she thought proper.

While, as we have said, it was obvious, he gave her the right to use or consume, to sell or give away, to whomever she pleased this personal estate, it is equally obvious, that he did not intend to confer on her by the words : “ to use in any way, that she may think proper during her natural life,” a like unlimited power over his real estate, or any part thereof. All, that the testator meant by these words, was, 'that during her life she might use his real estate in any way, she thought proper without impeachment for waste. No power is given her, as in the bequest of personal property, to dispose of it during her life. Her right was only during her life to use this property. It is true, she had, under these words of the will, a right to use it in a manner, which other tenants for life have not ; she could cut timber, or commit other waste, as she was given the right to use it in any way, she thought proper. But no power to dispose of it was conferred by these words.

The substance then of the testators will with reference to this moiety of his real estate was, that his wife wasto have in it a life estate, and at her death it was to be sold, and the moneys, arising from the sale, were to be at her disposal to one or more of her heirs, as she thought proper.

The question for consideration now is: Did this power, conferred on her, convert her estate, jmeviously spoken of as a life estate, into a fee simple ? There are some authorities, which give countenance to such a construction, and it was considered by the circuit judge, that this power converted her estate, previously called a life estate, into a fee simple. But reason and the overwhelming weight of authority are opposed to such construction.

It is true, that Avhere by a will a devise is made indefinitely, that is, without any expression of what estate therein is given, and an unlimited power of disposition is given the devisee, he would take a fee simple. The simple indefinite devise would carry by the conmon law only a life estate, unless an intention to pass a greater estate in some way appeared. But that an estate, given in indefinite terms, was intended by the testator to be a fee simple, could always be shown by any other portions of the will; and since January J, 1777, in "Virginia such indefinite devise by statute is interpreted, without any explanation, to carry the fee simple.

The reason, why such an indefinite devise with an unlimited power of disposition by the devisee was construed to be a fee simple, was, that this general power of disposition was considered as evincing sufficiently the testator’s purpose, to pass to tbe devisee more of ownership, than a mere life estate would carry with it. The ' testator having failed to state in his will expressly, what estate he intended to pass, the common law implied, that he intended to pass a life estate : but if the testator gave to the devisee an unlimited power of disposition, a power belonging only to fee simple estate, the court considered, that he thereby interpreted the indefinite devise; and they then construed the will to pass a fee simple. See New. Beni, 11 fol. 9 ; Amr. 24 Hen. 8; Co. Litt. 9 b, where the devise was indefinite, and the power to give or to sell, to whom he willi also Bac. Abr. tit. Devise ¶" 39; Anon. 7 Edw. 6, where the devise was to one to give, sell or do therewith at his will and pleasure : Sutton v. Robertson, Moore 57 n. 162, where the devise was to the testator’s wife, to dispose and employ the same on her and her son, at her will and pleasure: Timewell v. Perkins, 2 Atk. 103, where the devise was to the testatrix’s daughter for her own use, to give away at her death, to whom she pleases.

It is also true, that in Goodtitle v. Otway, 2 Wils. Ch., as reported, the court is represented as deciding, that a devise to one for life, with power to the devisee to dispose thereof at her will and pleasure, gave to the devisee a fee simple. But it should be observed, that the case is badly reported, that portions of the opinion of the court, and the remarks of Gundry, Judge, are contradictory and unintelligible. The devisee too was in that case the heir at law, and as the court well says, the land descended to her as such; and this being the case, it was entirely unnecessary for the court to have gone further in deciding, that the estate belonged to her in fee simple. Their decision is obviously right on this ground; and it was unnecessary for them to go further and construe the will, as they did. Had the devisee not been the heir, the court would have had necessarily to construe the will. As it is, their expression of opinion pan be regarded, as of but little more weight than an obiter dictum. To sustain this opinion, the court relies on Jennor & Hardis’s Case. 1 Leon. 283. But the examination of that case shows, that the devise was not one for life, with power to dispose at her pleasure, but was to one indefinitely with power to dispose thereof at pleasure. It was therefore in entire accord with the cases I have before cited, and does not sustain the decision in Goodtiile v. Otway, 2 Will. 6.

In rendering their opinion in this case the court admit, that a contrary decision was rendered in Anon. 3 Leon. 71 and 4 Leon. 41. They say however, that this case was overruled by Jennor & Sardis’s Case, 1 Leon. 283; which was subsequently decided. This, we have seen, is a mistake. The case in 3 Leon. 71, was a devise expressly for life, with a power to devise, to whom the devisee chose ; and the court held, that the devisee had but a life estate. And the case in 1 Leon. 283, did not, as we have seen, conflict with this decision. The decision in Goodtille v. Otway, 2 Wils. 6, was not only in conflict with the Anon. Case in 3 'Leon. 71, but also in conflict with other cases. See Liefe v. Saltington, 1 Freeman 149, 163 176; 1 Mod. 189; Tomilson v. Dighton, 1 P. Wms. 149; 1 Salk. 189; 10 Mod. 31, 71.

Whatever doubt may have been produced by this decision of Goodtitle v. Otway, there would seem now to be no doubt, that if when a devise or bequest expressly gives a life estate, a superadded power of disposition will not enlarge the life estate into a fee simple, or make the property bequeathed absolute. It has been so decided in numerous English and American cases. See Nannock v. Horton, 7 Ves. Jr. 391; Reid v. Shergold, 10 Ves. Jr. 370; Doe v. Thorley, 10 East 438; Reith. v. Seymour, 4 Russ. 263; Archibald v. Wright, 9 Sim. 161; Fairman v. Beal, 14 Ill. 244; Dunning v. Vandusen, 47 Ind. 423; Henderson v. Vaulk, 10 Yerg. 30; Denson v. Mitchell, 26 Ala. 360; Freeman v. Okey, 3 Jones Eq. 473; Dorter v. Thomas, 23 Ga. 467, 471; Hollingshead v. Alston, 13 Ga. 277; Andrew v. Brunsfield, 32 Miss. 107; Johnson v. Coleman, 2 Johns. 291; Rail v. Dotson, 14 Smed. & M. 170; Dean v. Nunnally, 36 Miss. 358, 364; Bryant v. Christian. 58 Mo. 98; Hazel v. Hager, 47 Mo. 277; Green v. Sutton, 50 Mo. 186; Jackson v. Hussey, 41 Me. 495, 498; Scot v. Burt, 9 Rich. Eq. 358; Aurora v. Beck, 9 Rich. Eq. 411; Pulliam v. Boyd, 2 Strob. Eq. 141; Flintham’s Appeal, 11 Serg. & R. 16; Borden v. Downey, 35 N. J. (6 Vroom) 74; Downey v. Borden, 36 N. J. (7 Vroom) 460; Burleigh v. Clough, 52 N. 11. 267.

There are a few cases, which have been cited, as not in accord with the views expressed, or law decided in these numerous eases; but a closer examination of them will show, that their inconsistency with these cases is more apparent than real.

Thus in the cases of Irwin v. Farrer, 19 Ves. 86, the power, conferred on the life tenant, really amounted to a power, to consume the principal; and in accordance with the views, I have before expressed, it was properly held, that the legatee had an absolute interest, and not a mere life estate.

The case of Holloway v. Clarkson, 2 How. 521, though it might seem inconsistent with the views I have expressed, is not really so. This will be apparent, when we read the explanation of that ease, and the case of Irwin v. Farrer, 19 Ves. 86, and of Barford v. Street, 16 Ves. 135, as given by Vice Chancellor Turner, in Hughes v. Wells, 9 How. 768.

In the case of Barford v. Street, 16 Ves. 135, Sir William Grant said: “that an estate for life with the unqualified power of appointing the inheritance comprehends everything.” This, standing alone, certainly seems inconsistent with the views, I have expressed; but taken in its connection, as uttered in that case, it really is not, as is shown by Vice Chancellor Turner, in Hughes v. Wells, 9 How. 768, also 13 Eng L. & E. Rep. 389, 397.

In the case of Beacheroft et al. v. Broome, 4 T. R. 441, Lord Kenyon decided, that under a devise to A. and his heirs, but if he dies without selling or disposing -of the same, or without issue, then over, A may settle the estate in his lifetime, and defeat the limitation over. But as his opinion shows, this decision proceeded, not on the ground that the life tenant had a fee simple, but on the ground that he had a power to settle the estate, which power he had exercised. Judge Green in a dissenting opinion in Madden v. Madden’s ex’rs, 2 Leigh 380, denied (with some qualifications) that there was an established distinction between a ease of a gift for life, with a power of disposition added, and a gift to one indefinitely, with a superadded power to dispose by deed or will. He was apparently misled by the cases of Goodtitle v. Otway, 2 Wils. 6; Beacheraft v. Broome, 4 T. B,. 441; Barford v. Street, 16 Ves. 135; Irwin v. Farrer, 19 Ves. 86, which are the only cases he cites to sustain his view.

All these oases we have examined and commented on. Judge Green seems however to have entertained this view but a brief time. He concurred in the decision in Burwell’s ex’rs v. Anderson’s adm’r &c., 3 Leigh 356, decided shortly afterwards.

Judge Tucker, in delivering the opinion of the court in that case, says: “A devise to A, to dispose of at his will and pleasure, gives a fee simple; but a devise to a wife for life, and after her decease she to give the same to whom she will, passes but a life estate with a power. When such inconsistent life estate is given, the fee does not pass; for the whole matter rests upon intention.”

I conclude therefore, as stated by Sir William Grant in Bradley v. Wescott, 13 Ves. 453, and by Chancellor Kent in Jackson v. Robbins, 16 Johns. 588, that the distinction, on which I have been insisting, is perfectly established; and that a devise or gift to A and such persons, as he shall appoint, is a fee simple, or absolute property in A without an appointment; but if it is to him for life, and an unlimited power of appointment is superadded, he has but a life estate. And ii the super-added power was, to appoint a specified class of persons, it would a fortiori not enlarge his express life estate to a fee simple, or absolute property.

While the rule in Shelley’s case was in full operation, i there ivas one exception to the rule. If the devise or' bequest was to A, for life, with the superadded powerj of appointing to A’s heirs in fee simple or absolute! property, the life estate of A would be enlarged into ai fee simple, or absolute property, though the power was '■ never executed by A. If in such a case A executed the poiver, and appointed the estate to his own heirs, the rule in Shelley’s case would immediately apply, and A’s life estate would become a fee simple, or absolute property. And the same result would folloAV, if the estate had been devised or bequeathed to A for life, with poAver to B, to appoint the estate in fee simple, or absolute property, to A’s heirs, and such poAver aats executed by B, Avhen so executed, A’s life estate, by the rule in Shelley’s case, Avould at once become a fee simple in A; and his heirs Avould got nothing by such appointment.

By the rule in Shelley’s case, Avhonever the ancestor, by any gift or conveyance, takes an estate oj freehold in lands or tenements, and in the same gift or conveyance an estate is afterwards limited, by Avay of remainder, to his heirs, the Avord heirs are Avords of limitation of the estate, carrying the inheritance to the ancestor, and not Avords of purchase, creating a contingent remainder in the heirs. 2 T. Co. Litt. 144; Fearne Rem. 29, 28, n (1); Shelley’s case, 1 Co. 194 a. 106 b n (I. 5); Thomas’s ed. Minor’s Institutes, vol. 2 pp. 341, 342.

The ancestor by this rule must take the estate of freehold, by or in consequence of the same assurance, which contains the limitation to his heirs. But this requirement is satisfied, if the limitation to the ancestor, and to the heirs, be parts of the same transaction, although contained in several instruments, as a deed, or will, creating a power and an appointment exercising the power. Shelley’s case, 1 Co. 106 b. n (I. 5); Thomas ed. Minor's Institutes, vol. 2, p. 342.

If therefore in the cases supposed, it is the person, who by will was given the appointing power, A or B as the case may be, exercises this power by appointing the inheritance or absolute property to A’s heirs, it operates precisely as if by the will a life estate had been given to A, remainder in fee or absolute property to A’s heirs; and the rule in Shelley’s ease therefore applying, the estate of A at once becomes a fee simple, if the gift was real property; or absolute property, if the gift was personal property, for the rule in Shelley’s case is applied by analogy to personal property. Fearn Rem. 492 et seq. & n (a); 3 Lom. Dig. 339; Minor’s Institutes, vol. 2; p. 348.

When the life estate is by the will given to A, and a power conferred on him thereby to appoint the estate to his heirs in fee simple or absolute property, then, though A. does not exercise the power, his life estate will, by reason of the giving of such power, be enlarged into a fee simple or absolute property. For if A failed to exercise the power of appointment, as the subject of the testator’s bounty, the real or personal estate, as the case may be, and the object of his bounty, A’s heirs, are both certain, the power would be -regarded by the courts as imperative; and A’s heirs would be held by the court as in the same situation, as though the will had devised or bequeathed the remainder after the life estate to them.

This I hold to be the law, as I will presently endeavor to show, though the authorities are conflicting. If this be the law, and on the failure of A to exercise the power of appointment, the will is construed, as though the testator gave A an estate for life, remainder in fee simple or absolute property to his heirs, of course the rule in Shelley’s case, when in full operation, would have applied; and A would have a fee simple estate or absolute property. But even if the will, under the law, was not to be so construed, still A must be regarded as holding a fee simple estate or. absolute property. For we have •seen, by exercising tlie power conferred on him, and ap- ~ pointing his heirs, the devisee or legatee would have a fee simple estate or absolute property; and his lite estate, by the operation of the rule in Shelley’s case would enlarge to a fee simple; and he could consume, or sell, or give it away; and the will having thus indirectly conferred on him these powers, we have seen, that it must be construed as giving him a fee simple or absolute property, though he be thereby expressly given only a life estate.

.Thus in Schemer v. Schemer’s ex’r1 Wash. 266, the will gave to the testator’s wife the use and profits of his whole estate, both real and personal, during her natural life; and after that was ended, his .will and desire was, that the whole of his estate be equally divided betwixt, whomsoever his wife should think proper to make her heir or heirs, and the testator’s brother. The wife died without executing this power, and the court held, she took 'a fee simple in this moiety of the land, which descended to her heir at law. The decision of the court-below was rendered by Chancellor Wythe. His opinion in the case may be found in Shemer v. Richardson ex’r &c., Wythe’s Chancery Reports (Minor’s ed.) 159. He construed this will, as giving the power to appoint the inheritance by making an heir, that is a devisee, or by appointing her legal heir, to the inheritance, which she did by dying intestate. Ho shows, that an indefinite devise to her, with a general power of appointment, would, as we have shown, give her a fee simple estate or absolute property; and he answers the difficulty, arising from the testator having given her expressly a life estate, instead of an indefinite estate, thus: “When an estate for life is given to one, and afterwards in the same conveyance the estate is given to the heirs of the donee, the donee takes the inheritance immediately, Coke’s Institutes, vol. 1, fol. 22 b ; and by like reason, when an estate for life is devised to one, and afterwards in the same testament the donee is empowered to make an heir of the estate, the donee takes the inheritance immediately.”

It is obvious from this, that he held, that the devisee in this case had a fee simple, because if he had executed the power by devising the land to his own heirs, the rule in Shelley’s case would have applied, and the devisee would under that rule have had a fee simple: his reasoning-being substantially the same as mine, except that it is less elaborate.

He assigns as another reason, that by his interpretation of the will an express life estate ivas not given by the will to the one moiety of the land, over which she was given a power of appointment. It seems to me, that it can be shown, that the Court of Appeals .in affirming his decision based their affirmance on the first of his reasons given above, that is, because if she had appointed the estate to her heirs by will, the rule in Shelley’s case would have applied. President Pendleton closed the opinion of the Court of Appeals thus: “his words have been critically scanned, he does not give her a power to dispose, but to name the person or persons, she might choose to succeed to her part, to whom the testator gives the money. And it is doing small violence to the words, even in their technical meaning, to say, that by suffering her legal re¡>resentatives to succeed her, she has actually made them her heir or heirs, as much so as if she had pointed them out by an express devise.”

In other words President Pendleton regards the devi-see, as having executed the power in the same manner, as if she had devised the estate to her heirs ; and then, as Chancellor Wythe had shown, the rule in Shelley’s case would have applied, and her life' estate Avould have been enlarged to a fee simple.

That this was the true ground, on which the court decided that case, is, I think, rendered apparent, by Avhat J udge Lyons, Avho sat in that case, says of it in Robinson’s adm’r v. Brock, 1 H. & M. 233. He says: “In that case the wife, who survived, held an estate for life under her husband’s will with remainder, to whom she “ should think proper to make her heirs, whieh gave her a fee or absolute property, in the same manner as if devised to her and her heirs; and of course her own relations took the estate.” It is obvious from this, that he regarded the rule in Shelley’s ease, as applying in the case of Shermer v. Shermer’s ex’r., 1 Wash. 266.

In the case of Goodwin v. Taylor, 4 Call 305, same case, 2 Wash. 74, the testator bequeathed the interest on £4,000 in government funds to his four grandchildren; and at their decease the principal and interest to be disposed of by them to their heirs, in such proportion, as they by their wills respectively direct. The court basing its decision on Shermer v. Shermer’s ex’r 1 Wash. 266, held, that a granddaughter took, not a life estate, but an absolute property, in this one-fourth of this £4,000, she having died intestate. Upon her death she must be regarded by her intestacy, as having disposed of the property to her heirs, under the power conferred on her by the will; and then it was the same, as if the will had given her a life estate, remainder to her heirs; and under the rule in Shelley’s case she took an absolute property, and not a mere life estate.

In Burwell v. Anderson, 3 Leigh 359, Judge Tucker in delivering the opinion of the court referred to Shermer v. Shermer’s ex’r, 1 Wash. 266, as an instance of the liberality, with which the courts in’modern times acted in dispensing with the literal execution of powers. He evidently regarded the court as deciding that case upon the grounds, which I have assigned for its decision.

Judge Allen, in delivering the opinion of the court in Moore et al. v. Brooks, 12 Gratt. 151, refers to this case of Goodwin v. Taylor, 2 Wash. 74, as an instance of the application of the rule in Shelley’s ease. It is therefore clear, that these two cases of Shermer v. Shermer’s ex’r, 1 Wash. 266, and Goodwin v. Taylor, 2 Wash. 74, 4 Call 305, were both decided, as they were, on this - reasoning : if the powers conferred on the devisee had been executed, by devising or bequeathing the property to the heirs of the devisee or legatee !,(their suffering themselves to die intestate being regarded as the equivalent of this execution of the powers) then, as a life estate would be regarded as given to the devisee or legatee, and a remainder to the heirs by the testator’s will, and the rule in Shelley’s ease applying, the life estate given by the will became a fee simple estate or an absolute property. ■

The judge of the circuit court in his opinion regards the case, under consideration, as being ruled by the decision in Shermer v. Shermer, 1 Wash. 266. Whether this conclusion be correct, must depend on the answer to the question: If the devisee, the testator’s wife, had executed the power conferred on her, and given one-half of the proceeds of the sale of the real estate, to which her power extended, to her heirs, would the rule in Shelley’s ease have applied ? If so, she took under the will a fee simple in this moiety of the. land; and otherwise she took only a life estate.

The will in this ease differs from the will in Shermer v. Shermer’s ex’r, 1 Wash. 266, in this, that in the case now before us the devisee for life is given the power to appoint, as the recipient of the testator’s bounty, not whomsoever she pleased, but “whom she thinks proper of her heirs.” The testator in this case only moans, that she may appoint any one or more of her legal heirs. Her selection is limited to that class; she may select among them. This is the import of the word of in the portion of the will above quoted. She could not in executing this power go out of this class, her legal heirs.

On the contrary by the will in the case of Shermer v. Shermer’s ex’r, 1 Wash. 266, the power given to the devisee was : to appoint whomsoever she thought proper to malee her heir or heirs,” which, the court properly held, gave her the power to devise the land, to whomsoever sbe pleased, and did not limit her appointment to her legal heirs.

The decision however was not, if I am right in my view, of this case, at all dependant upon this difference. I do not understand, as counsel contend, that the court held, either in this case, or in the case of Goodwin v. Taylor, 4 Call 305, that a life estate, with superadded power of unlimited disposition, would beheld for that reason to be a fee simple. We have seen, that the overwhelming weight of authority, both English and American, is opposed to such conclusion.

In addition, to what I have said, I may add, that the reference by Judge Tucker, to the case of Shermer v. Shermer’s ex’r, 1 Wash. 266, in delivering the opinion in the case of Burwell v. Anderson, 3 Leigh 348, shows, he did not understand the case of Shermer v. Shcrmer’s cx’r, as laying down the law on this subject differently from what had been done in these English and American cases; foi while he heartily approves of them, he makes no comment on Shermer v. Shermer’s ex’r, as differing from them.

The will in the case of Shermer v. Shermer’s ex’r, 1 Wash. 266, differs from the will in the case before us in another very important particular. That will, after giving his wife a life estate, provided, that his property real and personal should be equally divided in kind between the testator’s brothers “and whomsoever his wife should think proper to make her heir or heirs” ; and it further directed, that his brothers, as soon as the crops were finished, after his wife’s death, should sell and dispose of his whole estate, real and personal, as they should think most conducive to the receiver’s benefit.”

In the case before us the will provides, that “at his wife’s death all the testator’s lands are to be sold, and one-half of the money arising from the sale is to go to his lawful heirs, and the other half to go at her disposal, to whom she thinks proper of her heirs.” The authorities show clearly, that under this will no estate in the testator’s land was conferred on the executor, but only a power to sell. Where a testator devises land to his executors to sell, the executors take a íee simple estate in the lands. But where a testator devises, that his executor shall sell his land, or that his lands shall be sold by his executor, or if ho devises his lands to be sold by his executor, no estate is thereby conferred on the executor ; but he has merely a power to sell. See Mosby’s adm’r et al. v. Mosby’s adm’r, 9 Gratt. 584; Campbell v. Johnston, 1 Sandf. 148; Jameson v. Smith’s ex’r, 4 Bibb 307.

Upon the death of his-wife therefore, the fee simple in the whole of William Milhollen’s land descended to his heirs; and if his wife had disposed of a moiety of the proceeds of his lands to her heirs, the fee simple in the whole of his lands would have still so descended ; and her heirs would have had no estate whatever in his lands, but only the right to a moiety of the proceeds of the lands, when sold by William Milhollen’s personal representative, under the power impliedly conferred on him, to make sale of these lands.

Now it has long been settled, that in order that the rule in Shelley’s ease may apply, where the ancestor has a legal estate of freehold, as in this case, her heirs must have a legal remainder in fee simple. It is not sufficient, that they have some interest in the land, or even that they have an equitable estate in fee simple. They must have a legal estate in fee simple. Unless they have in such a case a legal fee simple, they must take as 'purchasers, and not by descent. See Tippin v. Coson, 4 Mod. Rep. 380; Silvester on demise of Law v. Wilson, 2 T. B. 444; Venables et ux. v. Morris & Edwards, 7 T. B. 342; Minor’s Institutes, vol. 2, p. 342.

As therefore the life tenant, by executing the power conferred on her, could not have invested her heirs with a legal estate in. fee simple, she could not, by any act of hers, have brought the rule in Shelley’s ease into operation, so as to enlarge her express life estate into a fee simple. But not so in the case of Schermer v. Schermer’s' ex’r, 1 Wash. 266; for in that case, if the life tenant, who held a legal estate, had executed the power conferred on her (and she was regarded as having done so) she could have conferred on her heirs an estate in remainder in the land, for she was authorized to dispose of the lands themselves; and this estate would have been a legal estate in foe simple; and therefore the rule in Shelley’s case would have applied; and it was accordingly held, that she had a fee simple estate.

It is contended however, that as the will in that case provided, that the executors should, sometime after the rule in Shelley’s case had been brought into operation by her death, sell the land, this direction operated an equitable conversion of the land into money; and that a court of equity regards this conversion, as having taken place at the death of the testator. See Fairley v. Kline, Pen. (N. J.) 754; Reading v. Blackwell, Baldw. 166; Rinehart v. Harrison’s ex’r, Baldw. 177; Loftes v. Glass, 15 Ark. 680; therefore this case becomes identical with the case now before us.

But I cannot see, that this clause in the will, in the case of Schermer v. Schermer’s ex’r, could have any effect on the construction of that will. This conversion of land into money has no legal effect whatever; it is a mere doctrine of a court of equity, depending entirely on intention. "While the rule in Shelley’s case, where it applies is entirely independent of intention. If lands are devised to one for life, remainder in fee simple to the life tenant’s heirs as such, the rule in Shelley’s case will be applied, no matter how clearly the will may show, that the testator intended to give to the ancestor no moi e than a life estate. Such intention in such case was regarded by the courts to be in violation of public policy; and the courts therefore refused to carry out the testator’s clear purpose.

In almost every case, where the rule in Shelley’s case, has been applied, it violated the intention of the testa"tor, to give the ancestor no more than a life estate. See Taylor v. Clary, et al., 29 Gratt. 448. If the case was brought within the rule in Shelley’s case, it has been always inflexibly applied, though in so doing the testator’s intention, to give but a life estate to the ancestor, was ever so clearly violated. The case of Schermer v. Schermer’s ex’r was, as we have seen, within the rule; and being so, it would have been apjdied, though the court had seen, that in so doing it violated the testator’s intention to give but a life estate to the ancestor, deduced from the power given to the executor to sell the lands, or shown in any other manner.

But the case before us not falling within the rule in Shelley’s case, the court is at liberty to, and must, regard the testator’s intention in determining, whether Mrs. Rice took a fee simple or a life estate under her former husband’s will. My conclusion is, that she took but a life estate in these lands.

iSylhibus 3. The next enquiry is: "VYliat interest, if any, had Mrs. Rice, under her former husband’s will in the one-half of the proceeds of his lands? In Robinson v. Dusgate, 2 Vern. 181, where A, by will devised his lands to B in fee, he paying therefor £400, whereof £200 was to be at the disposal of his wife by will, to whom she shall think proper to give it; and she died intestate; the court decided, that her administrator should have the £200, the property thereof being absolutely vested in her.

But in Hanson v. Miller, 14 Sim. 27, the Vice Chancellor said: “if the case of Robinson v. Dusgate, is correctly reported, I must say, it would require a great deal of argument to satisfy me, it was rightly decided.” The court however in Muskelyne v. Muskelyne, 2 Amb. 750, cited Robinson v. Dusgate, approvingly, though that case differed from it materially.

In Whiskon & Claytor’s ease, 1 Leon. 156, the court hold, that if I will, that any lands be at the disposition of J. S., by these words J. S. has a fee simple; and that there is no difference, where the devise is, that J. S. shall do with the land at his discretion, and where the devise is, thereof to J. S. to do with it at his discretion.

This case seems scarcely reconcilable with the cases before cited, which held, that a devise of lands to an executor, to sell, gives a fee simple estate in the land, while a devise of my lands, to be sold by my executors, passes no estate in the land, but confers only a power. But be this as it may, it has been decided in Virginia, that a bequest of personalty, not to another, but to be at the absolute disposal of another, gives to that other ownership of it as his absolute property.

In the case of Burwell v. Anderson’s adm’r &c., 3 Leigh 348, the testator, after directing the sale of certain real and personal property to pay debts, and after giving all the residue of his estate real and personal to his wife for life, directs, that at her death all his estate real and personal shall be turned into money, to be distributed as follows: first he devises, that his wife hoy will or otherwise may have the absolute disposal of £500; and then he bequeaths the balance of the proceeds of sale to certain parties, specifying them. The court held, that the wife took by this will the absolute property in this £500, and not a mere power to dispose of that sum. Judge Tucker, in delivering the opinion of the court says:

“From the earliest times it has been among the received doctrines of the common law, that an absolute and unqualified power of disposing, conferred by will, and not controlled or explained by any other provision, should be construed as a gift of the absolute property. In this the law but corresponds with the dictates of common sense. Every man of ordinary capacity would understand a power to dispose of a thing as he pleased, as a gift of the thing itself; and hence every one, who uses the phrase without qualification, is understood by the law as intending a gift. The power of absolute disposition is indeed the eminent quality of absolute property. He, who has the absolute property, has inseparably the absó- ' lute power over it; and he, to whom is given the absolute power over an estate, acquires thereby the absolute property; unless there is something in the gift, which negatives and overthrows this otherwise irresistible conclusion.

“Thus a devise to A, to dispose of at his will and pleasure, gives a fee ; and a devise, to dispose of for payment of debts, or to give, sell, or do therewith at pleasure, is held to give an absolute estate, even in lands. 4 Com. Dig. 161. So a devise, to be at the discretion of a person without any express disposition to him, otherwise than to declare, that the lands are to be at his discretion, gives a fee. So, that a person (tenant in tail under another devise) shall have power to dispose at his will and pleasure; so too, that the executor shall sell or levy a fine, or make assessment, or grant a rent in fee. 2 Preston on Estates, 74, 75.

“ So though a devise to a wife/or life, and after her decease, she to give the same to whom she will, passess but an estate for life with a power; yet if an express estate for life had not been devised to the wife, an estate in fee would have passed by the other words. 8 Vin. Abr. Devise, W. a., ¶ 4, p. 234. When indeed such an inconsistent life estate is given, the fee does not pass; for this whole matter rests upon intention. The estate being the testator’s to give, his will is the law of the subject, unless that will be against the law of the land.

“ When therefore there is an absolute power of disposition, without any other bequest to the party, except what these words themselves imply, they operate to convey property, and not power only. And where an interest is given generally, and without limitations, the gift is not converted into a mere power by annexing thereto a general power of disposition. Looking at this case upon these principles, I cannot doubt, that this will conveyed not a mere power but an interest also. A life interest had indeed been given to some estate in specie ; but that interest is altogether severed from the subsequent appropriation of the proceeds of sale, by' the power to the ex-' ecutor to sell and distribute. This was forcibly illustra-trated by the counsel for the appellee himself. So that as to the £500 it is a devise, to be at the absolute disposal of the wife by will or otherwise, as she pleased, without any other disposition to her by name, than what is implied by these words; there is no life estate in the £500 to control their operation; and, therefore, they have the established effect of passing an absolute right.”

I have quoted thus largely from the opinion of the court in that case, in order that the grounds of this decision might be distinctly understood, as in the opinion of the circuit court if Mrs. Eice did not, under the decision of Schermer v. Schermer’s ex’r, have a fee simple, she had by this decision in Burwell v. Anderson’s adm’r, 3 Leigh 348, an absolute property in one-half of the proceeds of the sale of the testator’s land.

An important difference between this case and the one before us should be noted. In that case the wife was to have the absolute disposal of a small portion of the moneys, arising from converting into money all the testator’s estate, real and personal. ■ The fund, out of which the £500, which she had the absolute right to dispose of, as she pleased, was not the proceeds of the sale of the whole property, he had devised to her specifically, nor was the portion, she had this absolute right to dispose of, to arise specifically from the specific property given to his wife for life, but it was to arise from turning into money all the testator’s estate both real and personal.

In that case the court might.well hold, that though a life estate had been given in some estate in specie, yet that interest was altogether distinct fro m the fund, aidsing from converting, after his death, all his property real and personal into money, and therefore from the £500, a portion of this general fund.

In the case before us the fund, which the wife had a power to dispose of among her legal heirs, (not a general power to dispose of as sbe pleased as in that case,) was the ' entire proceeds of the sale of the whole of the idcntieal property, and none other, which he bad specifically given to his wife for life. In this case it seems to me to be impossible to say, that this fund, so arising, was altogether distinct from the property, in which she had been given a life estate. On the contrary, it seems to me, it was the same property. In the view of a court of equity it must be considered as the same property identically; for though its form had been directed to be changed, yet in the view of a court of equity its identity was not thereby lost.

On the contrary, from the authorities heretofore cited, it appears, that before the sale, (and indeed before her death) a court of equity regarded the remainder in the property, in which she had a life estate, as money. The sale directed by the will was, before it was made, regarded by a court of equity, as though it had been made.

There was then, in the view of a court of equity, no change made in the property of William Milhollen by the sale, directed to be made after his wife’s death. The land before the sale was regarded as identical with the proceeds of the sale, after it was made; and therefore the property, she was empowered in a qualified manner to dispose of, was the identical property, in the view of a court of equity, in which she had been given a life estate; and therefore by the reasoning in Burwell v. Anderson’s adm’r, 3 Leigh 348, her express life estate was not enlarged to an absolute property. But even if the proceeds of the sale, which Mrs. Rice was given a limited power to dispose of, had arisen from some other source than the sale of the identical property, in which she had a life estate, still this case would have differed entirely from that case.

The whole reasoning of Judge Tucker, in delivering the opinion of the court, shows, that she could not be regarded as having an absolute property in the moiety proceeds of the sale of the real estate, unless she had an absolute and unqualified power to dispose of the- same,' and no express estate had been given to her. In that case the devisee clearly had this absolute power of disposing of the £500 in any manner and to any person she pleased. In our case she had no such power. It was at her disposal, to whom of her heirs she pleased. Not at her absolute disposal.

It is true, that in Goodwin v. Taylor, 4 Call. 305, where the will bequeathed the interest upon £4,000 to four grandchildren, and at their decease the principal and interest to be disposed of by them to their heirs, in such proportion as they by their wills respectively direct, the court in concluding their opinion do say: “A power to a tenant for life, to make heirs, is the same as a power, to dispose to of his heirs. In both the meaning is, the heirs, whom he shall appoint or the law create.” But in that case the power was not, to dispose of to his heirs, but to dispose of to their heirs in such proportion as they may direct. Which seems to me, to be essentially different, though this difference does not seem to have attracted the attention of the court in that case. In truth ■ this language seems to have been thrown in by the court at the close of its opinion without much consideration.

It really made no difference in that case, whether the word heir included devisees or not. The case must have been decided in the same way, whether these words were so construed or not. It was decided, as it was, because, as we have soon, the case was held to come within the rule in Shelley’s ease; and not because the testator intended to give more than a life estate to the devisee. And from what we have heretofore said, the rule in Shelley’s case would have applied to it just as certainly, had the power to dispose of to their heirs been interpreted to mean legal heirs, as when interpreted to mean them and also devisees. I regard the expression by the court of its opinion on this subject, as a mere obiter dictum,.

That it ought to have no weight, is further shown, by - what is said on this subject in Wilkins v. Taylor, 5 Call 157, by President Lyons, who was one of the court in Goodwin v. Taylor, ex’r, 4 Call 305. Speaking of this same will he says : “the devise is of one-fourth of the interest to each of the daughters for lite, with power to dispose of the principal and interest at their deaths among their respective heirs; which, if the testator meant heirs general, necessarily gave the whole property to each daughter in her own fourth; for a power to give to one’s heirs is ownership in effect; and comes to the same thing, if he meant heirs of his body; because that would have created an estate tail in lands, and consequently have given the absolute property in a personal thing.”

From this it is obvious, that President Lyons thought, that the power in that will, to dispose of to their heirs, was a power to dispose of to their legal heirs, and not to any devisee the testator pleased. And this, it seems to me, was the true meaning of the will in that case. There can, in my judgment, be no doubt, that this was the meaning of the word “her heirs” used by William Mil-hollen in his will. His words were : “the other half of the moneys, arising from the sale, to be at her disposal, to whom she thinks proper of her heirs.” To regard this as unlimited power to dispose of, ^to whom she thinks proper, we must reject entirely the words ‘of her heirs;’ and no correct rule of construction would permit us to reject these important words. No meaning can be given them unless they are regarded as qualifying her absolute power of disposal.

The testator obviously meant, that she have the power to dispose of these proceeds among a fixed and definite class, to-wit, her legal heirs. Such is the usual and proper legal signification of thp words; and no reason can be given for giving these words an unusual and arbitrary signification. If his meaning could be regarded as in any degree doubtful, it is made clear by the testator’s own language, when he intended to give an absolute or unlimited power of disposal. When he bequeathed" his personal estate, he intended to give such power; and his language is: “to use or dispose of at her discretion during her natural life, and also to have the right of disposal at her death.” There is here no limitation of her power.

Compare this language with that used by him, as quoted above, with reference to the power to dispose of the proceeds of a portion of his real estate; and none can doubt, that he did not intend to give exactly the same power in both instances. She not having an absolute power of disposing of the proceeds of the real estate, she did not, according'to the case of Burwell v. Anderson’s adm’r, 3 Leigh 348, have any ownership in these proceeds.

Syllabus 4. The next enquiry is: Who, under the provisions of this will, has the ownership of one-half of the proceeds of lands left at the disposal of his wife, to whom she thought proper of her heirs ? She not having disposed of them, did the testator die intestate as to them ? If so, it would pass to his heirs, or, more properly speaking, distributees, as the direction to sell his lands was an equitable conversion of them into money. Or, did this moiety of the proceeds of this land under this will go to her heirs ?

If she had a mere naked power to dispose of these proceeds of the sale, she having failed to execute this power, these proceeds must pass to his distributees, unless the court, according to the doctrine laid down, or intimated, in Schermer v. Schermer’s ex’rs, 1 Wash. 266, should hold, that Mi’s. Nice, by suffering herself to die intestate, would be regarded as having disposed of these proceeds to whomsoever was her legal heir or heirs, and’thus constructively executed its powers.

If on the other hand this power, conferred on Mrs. Nice, by the will, to dispose of half the proceeds of the sale of the testator’s land, to whom she thinks proper of ^Ier heirs, should be construed as a power in the nature of a trust, then these proceeds must under the will go to her heir or heirs, as the objects of the testator’s bounty, even though she never executed the power conferred on her, either actually or constructively. All the authorities agree that no power can ever be construed to be a power in the nature of a trust, unless there bo a certain subject, on which the power is to act, and a certain object, in whose favor the power is to be exercised.

The only point of controversy is, whether, when there is this certain subject and certain object, there be anything else necessary, to convert a mere power into a power in the nature of a trust, and if so, what else is necessary? There is obviously here a certain subject, that is, one moiety of the proceeds of the sale of all the testator’s lands; and if the construction I have given this will be correct, then the object is equally certain, that is, the heirs of the testator’s wife.

All the authorities agree, that the fact, that the de-visee, on whom the power is conferred, has a right to select, as objects of the testator’s bounty, one or more, or give to all, of a certain fixed and determinate class, does not render the object uncertain, so as to prevent the court’s holding the power to be a power in the nature of a trust.

If the court so holds, it will distribute the testator’s bounty equally among all persons, belonging to the class designated in the will, wherever the person, who by the will was intrusted with such a power, has failed to execute the power ; and the power conferred on such person an arbitrary right of selecting among such class at his pleasure. See Harding v. Glynn, Brown v. Higgs, 4 Ves. 708; 5 Ves. 495; 8 Ves. 561; 5 Myl. & Cr. 92; Pierson v. Garnett, 2 Bro. C. C. 38; Dogley v. The Attorney General, 2 Eq. Ca. Abr. 194; Crossley v. Clan, Amb. 397: 4 Vin. Abr. 485, 486; Salusbury v. Denton, 3 Kay & J. 529; Crawys v. Coleman, 9 Ves. 319; Birch v. Wade, 3 Ves. & Bea. 198; Dominich v. Sayre, 3 Sandf. 571.

The appellant's counsel however contends, that the objects of the testator's bounty, assuming that this would otherwise be a power in the nature of a trust, cannot be so held, because the words, “whom she thinks proper of her heirs," do not designate the objects of her bounty with sufficient certainty; and they rely, to sustain this position, on Judge Samuels’s opinion in Robinson v. Allen, 11 Gratt. 790.

As I understand this opinion, it does not sustain this view of the appellant’s counsel. The language used by Judge Samuels, is far from being clear. The language of the will was : “At the death of my husband I give all the lands, <&c., to one or more of the children of Caroline A. Robinson, as he may designate; or authorize him to make such othqr disposition, as he may deem proper."

I understand Judge Samuels, as not questioning the law, as I have laid it down above, and as ‘saying, that if the will had stopped at the word “designate,” its meaning might be doubtful; but ho bases his decision on the concluding clause, which authorized her husband to dispose of the property to any person, he pleased, as rendering the objects of the testator’s bounty entirely uncertain ; and therefore this could not be regarded as a power in the nature of a trust.

The decision has no application to the case before us; for we have seen, that the true interpretation of the will of William Milhollen, does not. authorize his wife to dispose of this fund, to whomsoever she pleased, but only gives her the power to dispose of it, at her discretion, among her legal heirs. This is a perfectly defined class; anti the objects of the testator’s bounty are therefore entirely certain.

Is anything else essential, to require a power to be construed as a power in the nature of a trust, than that the subject and object of the power should be both certain ? It seems, that in New York a statute law was passed, which declares, that every power is a power in the nature of a trust, when the disposition, which it authorizes, is limited to be made to any person, or class of persons, other than the grantor of the power.

This statute is quoted in the opinion of the court by Duer in the case of Dominick v. Sayre, 3 Sandf. 559. Under it, all that is necessary to malee any power a power in the nature of a trust, is, that the subject and object of the power be certain. Judge Duer states, that the notes of the revisors of the New York code show that this provision of the statute law, recommended by them, was regarded as only declaratory of the common law. That case arose from a will of a testator who died before the statute was passed; and it was therefore governed by the common law ; and hence Judge Duer deemed it necessary in that case to examine the whole subject; and his conclusion was, that this statute only declared what was law before its passage.

The appellant’s counsel, in the case before us, seems to have overlooked this statement of Judge Duer, and erroneously concluded, that the decision in that case was controlled by this statute.

Francis Dominick by his will devised eight lots to his daughter Margaret, during her life, with power to give the same by deed, or will, to any of the male descendants of my family of the name of Dominick, and their heirs. This power was unexecuted, as to two of these lots; and the question submitted to the court was: whether this power implied a trust, the execution of which has de- - volved on the court. In other words, was the power merely discretionary, or must this power be construed, as imperative ? If the exercise of the power rested in the mere discretion of the donee, she having failed to execute it, an absolute fee vested in the heirs of the testator. .But if the power imposed a duty of execution, it should be regarded as imperative; and the court was bound to execute the power.

Judge Duer’s introductory remarks, in delivering the opinion of the court, so nearly correspond with the con-elusions I liave drawn from my examination of the authorities, that I will here quote them :

“It is not to be denied, that the language of the court cited by the counsel” (and which has been cited in the cause before us) “favors very strongly the position, that words of mere authority or power are not sufficient to create a trust, unless the estate or interest of the donee of the property is commensurate with the power itself; and where the estate or .interest is less extensive, as when a tenant for life is authorized to dispose of the fee, the power is not to be construed as imperative, unless other expressions or • provisions are to be found in the will, manifesting the intention of the testator that it should be executed,'and therefore imposing the execution as a duty. But whatever support these positions may seem to derive from the earlier cases, (and it was upon these principally the counsel relied,) they are not only inconsistent with, but are distinctly refuted by, the latter decisions.

“In the earlier cases there is much confusion and uncertainty, as to the proper construction of powers similar to the present; and of this no more striking proof can be given than results from a comparison of the decisions of Lord Hardwicke in Harding v. Glynn, 1 Atk. 496, and the Duke of Marlborough v. Lord Godolphin, 2 Ves. 6: decisions v'hich no effort of legal subtility, as both Lord Eldon and Lord Cotton have virtually confessed, has hitherto been able to reconcile.”

The court in that case decided, that this was not a naked power, but a power in the nature of a, trust, and that being unexecuted, all the male descendants of the name of Dominick, who were living at the death of the testator, were entitled to equal shares in these two lots, as the object of the trust.

In the case of Pierson v. Garnett, 2 Bro. C. C. 45, decided in 1786, Lord Kenyon, then Master of the Bolls, in his opinion first laid down- a broad principle, which has since been a guiding star to his successors. He says: “that where the property, to be given is certain, 'and the objects to whom it is given, are certain, then a trust is created; ” and he well adds : “And it would be a lamentable case, if this court were to raise a distinction on slight words, as peto, rogo, fidei tuce oommendo, and such expressions of civil law; if the decisions of cases were to turn upon such grounds, property would be very vague.”

This case was affirmed on appeal without hearing counsel; and Lord Thurlow said with reference to this rule laid down by Lord Kenyon. “I see no great reason to doubt the propriety of the rule, laid down by the master of the rolls. Where the object and person are both certain, the rule must be adhered to. Where the words peto, rogo, opto, ¿se., occur, they make a designation of the object; and the property must be applied according to that designation. •

The decision in this case is in itself unimportant, as these very strong expressions in the will manifesting the desire of the testator, that the power should be executed the words being: “it is my dying request that said Peter Pierson do dispose, &c.” The case is only important for the sound rule, laid down by Lord Kenyon, and for his declining to place his decision on words so strong, that he might safely have done so from previous decisions; but he preferred to ground his decision on a more solid basis.

As I understand both Lord Kenyon and Lord Thur-low, they regard as of no value such words, as often occur in wills, such as, “desire,” “will and devise,” “request,” “wish and request,” “entreat,” “recommend,” “hope,” “in the fullest confidence,” “not doubting,” “trusting and wholly confiding,” and the like, where there is sufficient certainty in the object and subject. To determine that in a particular case a given power was to be construed as a power coupled with a trust, basing the decision on the use by the testator of any such words, was regarded as indeed lamentable by Lord Kenyon, the proper basis of sucli a decision being only that the objects and subjects were both certain.

If the power is positive, and the subject oí it is certain, and it is limited in its execution to a class, specified with certainty by the testator, is not the inference to be drawn therefrom, that the testator desires the power, he has thus given, should be executed ? "Would this inference be really strengthened by the use of many of the words of the character above referred to ? Yet all of the words above quoted have been considered sufficient to create a trust, when there was certainty of object and subject. See Moggridge v. Thackwell, 7 Ves. Jr. 36; Estes v. England, 2 Vern. 466; Nowlan v. Neillgan, 1 Bro. C. 6, 489; Foley v. Parry, 2 Myl. & K. 138; Prevost v. Clark, 2 Madd. 581; Malvin v. Kneightty, 2 Ves. Jr. 333; Holland v. Iwigg, 1 Bro. C. C. 144; Wright v. Atkins, 1 Ves. & Bea. 313; Massey v. Sherman, Amb. 520; Wood v. Cox, 1 Keen 317.

In the leading case of Harding v. Glynne, 1 Atk. 469, the will gave a leasehold and personal property to the testator’s wife, but “did desire her, at or before her death, to give the same unto and among such of his own relations as, she should think most deserving and approve of.” Such of the property as was not disposed of by the execution of this power, it was decided, ought to be equally divided among such of the relations of the testator as were his next of kin at the time of the death of his wife. It would, as Lord Kenyon says in Pierson v. Garnett, 3 Bro. C. C. 48, be lamentable if such a decision was to be upheld, because the testator used the words “ I do desire ” her to give. Had he said “ I empowei her to give, &c.,” it seems to me the decision should have been the same; for why empower, if he did not desire her to execute the power ? ;

This ease is contradicted by the case of Puke of Marlborough v. Godolphin 2. Ves. 61. But it has been since fully approved; and is now regarded as a leading case. It is so treated in the leading cases in equity by White & Tudor, see vol. 2 p. 946.

The case of Brown v. Higgs, is justly celebrated for the elaborate consideration it received. It was first heard by Lord Alvanly, then master of the rolls, see 4 Ves. 708, was reheard by him, 5 Ves. 495; and appeal being taken from his decision, it was heard by Lord Eldon, 8 Ves. 561, and carried then by appeal to the House of Lords. But the original decree was in all these stages affirmed. In that case the testator by his will bequeathed a leasehold estate to A upon certain trusts, and then proceeded : “After the above trust is performed, I authorize and empower my nephew, John Brown, to receive the remainder of the rent, that arises from my estate at Brige Norton, and apply the same in certain specified ways, employ the remainder of the rent to such children of my nephew, Samuel Brown, as my said nephew, John Brown, shall think most deserving, and that will make the best use of it, or to the children of my nephew, William Augustus Brown, if any such there are, or shall be.” 4 Ves. p. 709. John Brown died in the testator’s life time.

The Master of the Bolls, in 4 Ves. 719, says: “The will is equivalent to saying, he gives it to the children of Samuel Brown, or of William Augustus Brown, with a power to John Brown to give to any he thinks fit, and to exclude the others; and it is too much to contend for, that nothing is intended for them exclusive of the appointment of John Brown. The fair construction is, that at all events he intended it to go to the children ; and these words of appointment he used, only to give a power to John Brown to select some and exclude others.”

The decree of the court in that- case was, that the -remainder of the rents, after applying them in the way directed by the will, went to all the children of Samuel Brown and the children of William Augustus Brown, if any there are or shall be, the power conferred by the will being held to be a power in the nature of a trust. The case was originally decided in 1799. On the re-bearing of the case, the Master of the Nolls referred to Harding v. Glynn, 1 Atk. 469, as exactly in point. 5 Ves. 503, 506. He regarded, that between the words request and desire in that case, and the words of simple power in this, there was an immaterial difference.

The case of Parson v. Poker, 18 Ves. Jr., Prescot v. Clarke, 2 Madd. 581, and Forbes v. Ball, 3 Meriv. 437, follow this decision of Brown v. Higgs. In the first of these cases the Master of the Nolls placed his decision distinctly on the rule laid down by Lord Kenyon, before cited. In all these cases, which have been cited, the estate or interest of the donee of the power was greater than he was authorized to create.

I cannot see, why a different construction should be put upon a power conferred on one, who has a fee simple estate nominally given him, than would be considered as conferred on one, who had a life éstate given; as, though the fee simple was nominally given, yet if a power is given after his death to dispose of his fee simple, and such power is construed as a power in the nature of a trust, it necessarily cuts down the fee simple estate in the donee to a life estate ; and why then should the same power be differently construed, -if instead of this constructive life estate, an express life estate was conferred on the donee, with power to dispose of the fee simple to a certain class of persons ? See Wright v. Atkins, 17 Ves. 255.

In Birch v. Wade, 3 Ves. & Bea. 198, the will provided : “ It is my will and desire, that the other third part of the principal of my estate and effects be left entirely to the disposal of my dear and loving wife among such of her relations, as she may think proper, after the death of my aforesaid sisters.” He had previously by his will given all his property to trustees, directing them to pay the interest thereof to his wife for life, and after her death, to his brothers and sisters for life, and after their death, two-thirds of the principal to their children, in a certain mode. The wife died without making any disposition.

The Master of the Rolls says : “ One-third of the principal is loit to her disposal amongst a particular class of persons, leaving it to her to select from that class such individuals, as she thinks proper. We cannot stop in the middle of the clause, and say, that all he willed was, that she should have the disposal of one-third; but that it was- no part of his will and desire, that her relations should have the benefit of that disposition. I think the intention was, that her relations, at least such of them as she should designate, should have the benefit of that third. He had already made a disposition in favor of his own relations; and given them everything he intended to give them. Her relations, living at her death, will be entitled, though there was no selection made by her."

In this case the wife had but a life estate, and yet was empowered to dispose of one-third of the principal. It is true, that the will was worded : “ I will and devise, that this other third be loft to the disposal of my wife among her relations." But surely this cannot be construed diflerently, from what the will would have been, had it simply empowered his wife to make 'such disposition. In Grieveson v. Kersopp, 2 Keen 653, the same principle was decided.

In Cropling v. Cropling, 2 Cox 396, the' terms of the power were imperative, yet as it was not executed, the fee was held to descend to the heirs at law of the testator. The only ground for this decision was, that the donee of the power had only a life estate. This case is in effect overruled by the subsequent cases of Birch v. Ward, 3 Ves. & Bea. 198, and Grieveson v. Kersopp, 2 Keen 653, before referred to.

It may be fairly deduced from the case of Whetmore v. Trelawney, 6 Ves. Jr. 129, that the donee of a life estate, with power to devise a fee simple to a class of persons, dying without executing this power, the property would pass, in Lord Eldon’s opinion, to this class of persons, it being a power in the nature of a trust. This point was not however decided in that case.

In Brown v. Pocock, 6 Sun. 257, -the report is imperfect; and it-does not appear, in what words the power was conferred. The donee had but a life estate. The substance of the power, however worded, was to leave by will ¿£4,000 in stock to his wife and children. The power was not executed; but it was jheld, that it was a power in the nature of a trust; and the wife and children were entitled to the £4,000 in stock.

In the case of Grant v. Lymann, 4 Russ. 292, though not decided, it being unnecessary to determine the question, yet it can be inferred, that the Master of the Nolls was of opinion, that where a tenant for life was given power to dispose of the same to any of her family, she might think proper, this was a power in the nature of a trust; and if she had died without executing the power, her next.ot kin would have been entitled to the property. The objection, that the donee of the power had but a life interest, was not in that case distinctly raised, or passed upon; but it is apparent in that case, that the court disregarded entirely the supposed distinction between words of request and those of mere authority.

In the case of Burrough v. Philcox, 5 Myl. & Cr. 72, the objection, that the donee of the power had but a life interest, was distinctly raised and ably argued. The power in that case was given to a tenant for life, it was limited to a particular class, but the donee had an unlimited right of selection among that class. The power was to dispose by will of the whole of the testator’s estate, among his nieces and nephews, or their children, giving all to one, or giving to as many as the donee of the power might think proper. It was held, that this power Was imperative, and amounted to a gift to all the nieces and nephews and their children, subject only to the power of selection, given by the will to the donee. It was held, that the fact, that the donee of the pqwer had no interest in the property under the will but a life interest, was entirely immaterial; it made no difference in whom the fee was vested, where the power was to bo executed, if the persons to receive the property were pointed out certaxnty. The Lord Chancellor in this case says : “Witts v. Boddington, 3 Bro. C. C. 95, 5 Ves. 503, and other cases reviewed by him, show, that when there appears a general intention in favor of a class, and a particular intention in favor of individuals of a class, to be selected by another person, and the ^particular intention fails, from that selection not being made, the court will carry into effect the general intention in favor of the class. When such an intention appears, the case arises, as stated by Lord Eldon in Brown v. Higgs, 8 Ves. 574, of the power being so given, as to make it the duty of the donee to execute it, and in such case, the court will not permit the object of the power to suffer by the negligence or conduct of the donee, but fasten on the property a trust for their benefit.”

Upon the question: What effect on the construction of the will should be produced if the fact that the donee had but a life interest, and not an interest extensive enough to enable the donee out of his estate to discharge his duty of executing the power, by granting to such of the objects of the testator’s bounty, as he thought proper, such a portion of the interest or estate of the donee as he elected? the Lord Chancellor says: “much argument was urged at the bar, upon the ground that the donee of the power had no estate in the property under the will, beyond a life estate. In my view of the case, this is quite immaterial. It is not certainly one of those cases, in which property is given with the expressions added as to the disposal of it, which was held to fix a trust upon the gift; but the whole property is given to trustees; and the question is, whether there be tound in the will a sufficient declaration of who, in the events which have happened, are to be cestuis que trust. If that be sufficiently expressed, it is immaterial whether the donee of the power be also trustee, or whether the trust be vested in others. In Birch v. Wade, 3 Ves. & Bea. 198, tbe property was given in trust; and the donee of the power was only tenant for life. In this case, upon the authority of Brown v. Higgs, 1 think my self justified in giving effect to the intention, which appears to me to be sufficiently apparent upon the will, of giving the property to the nephews and nieces and their children, subject to the selection and distribution of the survivor of the son and daughter; and that they all constitute the class to take all the property as to which no such selection or distribution has been made.”

In the case of Kemp v. Kemp, 5 Ves. 849, the testator, after disposing of some legacies, says : “ what remains, after paying these legacies, I give to my cousin, Martha Kemp, for her life, and then to be disposed of among her children, as she shall think proper;” and the court held, that this was a case, in which the donee was bound to execute the power. The court held it was a power in the nature of a trust. And the cases of Walsh v. Wallinger, 2 Russ. & M. 78, and Kennedy v. Kingston, 2 J. & W. 431, were somewhat similar.

In Randall et al. v. Wearle et al., 1 Anst. 124, it was decided, that a devise to A for life, with liberty to leave the same to whom she thought most deserving of it, recommending to her to have due regard to the testator’s mother’s relations, is not mandatory as to the objects of the appointment.

The case of Bull v. Vardy, 1 Ves. Jr. 270, is strongly relied upon by the appellant’s counsel, as showing, that the power conferred upon Mrs. Bice is not a power in the nature of a trust, and that it is a mere naked power, which must be executed to give it any effect. In this ease the testator devised to his wife several houses, and, after numerous specific legacies, made her residuary legatee under the following clause: “ I empower my wife to give away at her death £1,000, to A and B £100 each, the rest to be disposed of by her will.” It was decided she did not have an absolute property in this £1,000. Lord Chief Baron Eyre, after setting out the will and 'stating that the wife died without making any disposition of this £1,000, or any part of it, says:

“ It was insisted for the plaintiff, that the £100, which the wife was empowered to give, was sufficiently devised by the will, and argued, that expressions imparting recommendation, desire, request, &c., are in their nature, at least in a will, compulsory and words of devise ; therefore where the testator empowered his wife to give to a certain object a certain stun, that is a legacy. Many cases were cited as authority for this from 2 Vern. 153 down to Wymer v. Hawkins, 1 Bro. C. C. 179.

“The clear result of all is, that when the absolute interest is given to one, with any expression, that the devisee shall dispose of the whole, or a part, to a particular person, that does not amount to a devise properly: but will raise a trust for that person, which the court will execute after the death of the devisee. For the defendant it was truly observed, that this doctrine would not affect the present case; because the wife had not only no absolute interest in the £100, but none at all': so there is nothing to raise a trust. The, devise therefore to her is merely a naked power, which the principle of these cases does not- touch. From some of these cases this doctrine also arises, which is near to the present case : that a devise to one for life, or absolutely on the face of it, with directions that he shall dispose of it to another at his death, shall operate as an immediate devise without any such disposition.

“In arguing the case in 2 Vern. 467, it seems to be admitted, that a devise to one for life, with directions, that at his decease it shall go to J. S., is an interest for life in the first devisee, remainder over. Here the testator empowered his wife to give £1,000. The word 'empower’ must be understood to be imperative, as the only possible medium to make it the testator’s own bequest. If it can be so considered, the testator may be considered as doing that, which he compels another to do ; and in a will, where the intent is everything, it may operate without the assistance of the instrument.

“But can it be considered from the word ‘empower/ that he intended the two parties named to have each <•£100, after the death of the wife, at all events ? As to the £800, it cannot be said he devised that sum; because no object was marked out by him. Unless she selects objects, the devise cannot take effect. As to the persons named, if his intention was they should in all events take, why devise to them differently from all the other pecuniary legacies ?

“The plain meaning of the word with the context seems to be this: He gives the residue of his estate to these women, named Crowe, but say.s his wife may dispose of a £1000, if she pleases; if she does, she must give £100 to each of these women; the rest as she pleases. The word ‘empower’ in its most obvious sense is unfit to create a charge. The party must execute the power to create a charge. Upon the whole we are of opinion, the plaintiff is not entitled to this sum of £100; and the bill must be dismissed.”

I have given the whole opinion above of Lord Chief Baron Eyre, as the case appears to be one, on which the appellants rely more than any other. It seems to me to have scarcely any application to the case before us, because it is based expressly on the ground, that the wife had no interest in the property to be disposed of.

We have shown, that in the case before us, the wife had a life estate in the property to be disposed of. Again the learned judge put, in that case, the pertinent en-quiry, as to the persons named as recipients of this £100 each : “If his intention was, that they should take at all events, why devise to them differently from all his other pecuniary legacies ? ”

The case would obviously have been materially'different, had his wife had the selection, to which, of these two persons, and in what proportion, this £200'should be given. Then a very good reason could have been assigned, why this bequest was worded differently from his other pecuniary legacies.

Again, in that case there were residuary legatees, who, if the power was not executed, would take his whole estate ; and this it was natural for the testator to provide, if.he intended to leave it optional with the devisee of the power, to execute it, or not, at her pleasure. In our case no residuary legatee is made by the will.

The case of Marlborough v. Godolphin, 2 Ves. Sr. 61, and Malim v. Keighley, 2 Ves. Jr. 333, are also relied upon by the appellants’ counsel.

In the first of these cases there was a devise of £30,000 to testator’s wife for life, and afterwards to be distributed among his children, as she by deed, will, or instrument in the nature of a will should appoint. She having married again appoints by will (inter alia) unto two of the children, who died in her life time; and it was decided, that their representatives were not entitled ; and that the shares, so appointed to them, lapsed, and fell into the residue.

As before stated, no effort of legal acumen can reconcile this decision of Lord Hardwick with the previous decision of Harding v. Glynn, 1 Atk. 496, also decided by him; and the cases before commented on abundantly show, that the decision of Marlborough v. Godolphin has not been followed, but the case of Harding v. Glynn, which it is admitted cannot be reconciled with it, has been often followed and approved.

The other case, Malim v. Keighley, 2 Ves. Jr. 333, simply decided correctly, that a trust was raised under a recommendation by will to a legatee, to dispose of her legacy among certain persons after her death; and that a testator by showing his desire creates a trust, unless there be plain words, or a necessary implication, showing that there is to be a discretion, to defeat it.

But it is the language used by Sir Bichard Pepper Arden, the Master of the Bolls, in delivering his opinion, which is relied upon. He says : “ I will lay down the rule as broad as this: ivherever any one gives property, and points out the object, the property, and the way in which it shall go, that creates a trust, unless he shows clearly, that the desire expressed is to be controlled by the party; and that he shall have an option to defeat it. If a testator shows his desire, that a thing shall be done, unless there are plain express words or necessary implication, that he does not mean to take away the discretion, but intends to leave it to be defeated, the party shall bo considered as acting under a trust.”

This, it seems to me, lays down the law correctly, if it is understood, that the desire of the testator may be shown otherwise than by direct words. If this desire can be fairly inferred, from what the testator has 'provided in his will, it must control, or modify, the discretion given.

The American authorities throw generally but little light on the subject. Their general tendency is to give less effect to precatory words, or words of recommendation, when a devise is sought to bo converted thereby into a trust, than do the English eases; but they do not elucidate the matters under consideration in this case.

In Holt v. Hogan, 5 Jones (N. C.) Eq. 82, the will • provided : “ I give and bequeath to my beloved wife, Elizabeth Hogan, the use of the manor plantation and land adjoining during her life, and one-half of all my personal estate, that may be left after paying the above named legacies; and one-fffth part of all the marketable produce, that may be raised on my mill plantation, during her life, loith the 'privilege of disposing of the same by will, or otherwise, amongst our children at her death.”

A bill was filed to obtain a construction of this will. There were other clauses in the will, whose meaning was doubtful, and about which there was controversy; but there does not appear to have been any controversy about the above quoted clause; as the property would have gone to the same parties, whether this clause was to be construed as a power in tile nature of a trust, or a “mere naked power. It was never executed properly. The court held, the property, embraced by this power, was to be distributed, as undisposed of property, among the distributees of the testator. They do not discuss the question,whether this was a power in the nature of a trust, as it was unimportant to the parties, whether it was so considered, or whether it was considered a mere power.

' The only question, really considered and decided, was: whether there was a proper execution of the power in that case. The court held, there was no proper execution of the power, because a person, having a power of appointment for the benefit of others, cannot use’itfor her own benefit; and if attempted, such execution of a power is entirely- inoperative. They doubted, though they did not decide, whether it was not also inoperative, as she did not profess to dispose of her husband’s property.

The fact that so little consideration was given to the only point, which could have any influence in the decision of this cage, renders this decision one, which can have but little weight in considering the case before us.

On the contrai’y, the case of Nommie/c,V. Sayre, 3 Sandf. 559, is entitled to much weight, as the principal point of controversy in our case was fully considered in that case; most of the English cases we have considered were reviewed; and an able opinion was delivered by Judge Duer. Besides "Virginia cases, there are no other American cases, which I have seen, which throw light on this case.

The case of Shermer v. Shermer’s ex’r, 1 Wash. 266, and Goodwin v. Taylor, 4 Call 305, were, as we have seen, probably decided on the ground, that the life tenant, by suffering herself to die intestate, had constructively executed the power of attorney by disposing of the property to her heirs,"and she thus having a life estate witli remainder to her boirs under tbe will, tbe rule in ■ Shelley’s ease applied, and her life estate was enlarged to' a fee simple. But it may be, these cases were decided on the ground, that the powers given were powers in the nature of a trust, and being unexecuted, the court would enforce the trust, and give the property to her heirs; and thus taking it under the wills respectively, she having a life estate, and her heirs a remainder in fee, under the wills respectively, the rule in Shelley’s ease applied, and her life estate was enlarged to a fee simple. If these cases were decided on this principle, they are strong cases to give the real estate in the case before us to her heirs, under the will of William Mil-hollen; for we haye seen, the rule in Shelley’s case can have no application in this case.

The following are the other Virginia cases, which have more or less bearing on the decision of this case.

In the case of Guthrie v. Guthrie, 1 Call 7, the will was made prior to the act of 1778, which provided a fee should pass by an indefinite .devise, without the addition of words of inheritance. The will gave lands indefinitely, with a power to dispose of them; and it was held, this passed a fee simple; this case is therefore in accord with the numerous English and American cases, we have heretofore cited.

In the case of Morris v. Owens et ux. and Edwards, 2 Call 520, the testator by will devised personal property to his wife during widowhood, and then to be divided, at her discretion, among the testator’s children. As to such of the property, as she did not dispose of, the court held, that it should pass to the distributees of the testator.

This would have been its destination, whether the court had considered, thatthis was a power in the nature of a trust, or had considered it a mere naked power. In the one case these distributees would have taken under the will; and in the other case they would have taken, as distributees, this property, as undisposed of by tbe ’ will. In that ease therefore it was unimportant, which was the true construction of the will. The court however in its opinion say, that they took the property, as un-disposed of by the will.

Crossling v. Crossling, 2 Cox 396, Avas referred to as sustaining this position. The case, we have seen, has been repeatedly overruled in England. It proceeded on the broad ground, that if a devisee had but a life estate, no power, though imperative in its express terms, would be treated as in the nature of a trust. In such a case such a power has often been so treated. There seems to have been but little consideration given this question in this case, as it was immaterial, whether it was a power in the nature of a trust, or not; the same parties receive the estate, whether it was a power in the nature of a trust, or a naked power, which was unexecuted. The case is therefore entitled to but little weight.

The case of Hudson v. Hudson’s adm’r et al., was a case very similar to this. The testator by his will gives his slaves to his wife, for life, and directed, that the same should be disposed of, after her death, among his children, as she should think proper. The slaves, undis-posed of by her, it was decided, should be divided among his children and their representatives. But it should be here noted, that the court, though they refer to Owen v. Morris, 2 Call 520, carefully avoid saying, that it went to his children, as property undisposed of by his will, as was said in Owen v. Morris.

The inference I draw is, that the court had discovered the error, into which they had fallen in this case from inadvertance, the question being unimportant. It is true they do not say, in Hudson v. Hudson’s adm’r et al, in what capacity the children are to take the slaves; but their omission to say, as in the other case, that they took as distributees of the testator, justifies us in concluding, that they regarded them as taking as legatees under the will, or in other words, that the power given was a power in the nature of a trust. This inference is strengthened by other things said in their opinion. It may be regarded therefore as destroying any influence in this case before us, that the unnecessary expressions in the opinion of the court in Morris v. Owens, 2 Call 520, might have had.

In the case of Knight v. Yarbrough, Gilm. 27, the testator bequeathed land and personal property, “to live upon, pay my debts, and dispose of among my children and grandchildren, as she pleases; and should she find it necessary to sell all or any of the lands, to convey and make titles thereto, which title so made shall be valid to all intents.” But the court held, “ that by the true construction of this will the testator intended to create a trust in his wife, for the benefit of his children and grandchildren ; and to empower to appoint the same among them, in such proportions as"she thought proper; so that each object of his bounty should have a reasonable share; and that in that case all the appointments, attempted to be made by her will, ought to be declared void, they being repugnant to the intention of the testator; and that the correct rule in such case is, that when the trustee, who alone is confided in to make discrimination as to quantity, tails to do so according to the confidence reposed, the court must adopt equality as the rule.”

In the case of Frazier v. Frazier’s ex’r, 2 Leigh 642, the syllabus says: “ the testator bequeathed his personal estate to his brother, J., to be sold, and the proceeds to be distributed by the brother among testator’s next of kin, according to their deserts, as he should see at a future time, what may turn up; the brother dies without making an appointment: held, that the testator is to be regarded as intestate quoad this subject; and the same is distributable among the next of kin according to law. The court however says nothing on the subject. The property was held to be distributable among the next of kin, I presume, not because the testator was to be regarded as dying intestate as to it, ^but [because'itjwas either a trustor a power in the nature of a trust, wbicb 'being unexecuted, the property must go to the next of kin of the testator, as the legatees under the will.

In Mitchell v. Johnson, &c., 6 Leigh 461, the testator bequeathed personal property to his wife for life, and then to be disposed of among his lineal descendants, as she should think proper. The court held, “that the personal property bequeathed to the wife, for life, was subject to the power of appointment vested in her, which was a trust for the objects of the appointment • and as the power ivas ’ not executed by the trustee, the subject should be divided among the testator’s lineal descendants, according to the statute of distributions.”

I have examined various other Virginia cases, to which I have been referred; but these are all the cases, which I have seen, which throw light on the subject under discussion; and some, I have quoted, have but little bearing on the subject. The Virginia cases tend to confirm my view of the law, as deduced from the English cases.

As I understand the law, deducible from the English and Virginia cases, three things are necessary to create a power in the nature of a trust: first, there must be certainty in the subject, that is, the property to be disposed of must be clearly defined; secondly, there must be certainty in the object, that is, the beneficiaries, where the power is executed, must be certain; but by this is not meant, that the will must name definitely the individual person or persons, who are to be the beneficiaries, when the power is executed ; but the will must point out a definite class, to one or more, or the whole, of which the donee of the power is to dispose of the whole, or apart, of the subject of the power; and lastly, the power must be imperative; but in using the word imperative, it is to be understood in a sense somewhat different from its ordinary signification.

Its meaning as here used is, that under the will it is his duty to execute the power; and it is to be borne in mind, that it is always his duty to carry . out the intent of the testator, as shown by the will, no matter in what language that intent may have been expressed; and if therefore the testator, either by express declaration or fair implication, shows that he wishes the power, he has given, to be executed, it becomes the duty of the donee to execute such power; and such power is then regarded as imperative in the sense, in which I have used the word.

Syllabus 7. If a testator confers a power by simply authorizing the donee to dispose of definite property to or among a definite class of persons, as the donee may think proper, such a power will be held to be imperative, unless the testator by his will shows satisfactorily, that he had no wish, that such class,-or any member of it, should be the objects of his bounty, unless the donee ot the power desired. The mere giving of such power raises an inference, that the testator desires it to be exercised, unless it be shown by clear words, or necessary implication, that the testator intended to relieve the donee of the power of the duty of executing it, which duty the mere grant of the power imposed upon him. This must be shown, and that the testator had in contemplation, that the power might not be executed, and designed, that it should not be, if the donee thought proper to leave it unexecuted.

It is always sufficient, that the donee of such power has a life interest in the power, he is thus authorized to dispose of in fee simple among a definite class, in order that such a power may be held to be a power in the nature of a trust. The fact, that the donee of such power has not a tee simple interest, but is only a tenant for life, will not affect the construction of the power, or prevent it from being regarded as a power in the nature of a trust.

It is unnecessary in this case to determine, whether, if such a power of disposition is conferred on a party, who has no interest in the subject, such a power must not necessarily be construed to be a mere naked power, and not a power in tbe nature of a trust. It maybe, that the construction of a power, conferred on one having no interest in the subject, might depend uppn, whether the objects, to whom, he was to dispose of the property, were named, and the exact amount of property, each was to receive, was named; or whether the objects were a definite class, out of whom the person, on whom was conferred the power, was to select one or more persons at his pleasure. But on this question I express no opinion, as it is not involved in this case according to the construction I have given this will.

My conclusion from the law as thus laid down is necessarily, that the power conferred on his wife by William Milhollen in his will was a power in the nature of a trust, for the benefit of her heirs, which being unexecuted by her, the court will give the moiety of the proceeds of the sale of the testator’s lands to her heirs, as the beneficiaries intended by the testator, subject to her selection among them, which selection she having failed to make, the court could not make, but would have to distribute th,e proceeds among her heirs equally.

Syllabus 6. It remains then only to determine, who were her heirs. Does this word, “ heirs,” here, mean heirs in its natural and legal signification; or does it mean heirs apparent ? Does it mean the parties, who by the law in force at her death would have inherited her real estate; or does it mean such persons as would have inherited her real estate, had she died when the testator died, according to the law then in force ? This question need not be here discussed, as it was fairly presented to this court in the case of Stewart v. Reid supra. This ease was under consideration, when that case was decided; and the arguments of counsel in this case, as well as the authorities cited by them, were carefully examined, and duly weighed. We have seen no occasion to question the accuracy of our conclusions in that case. The reasons which led to those conclusions, are set forth at length in this case, and need Hot be repeated.

Syllabus 5 Our conclusion in this case, as in that, is that the word “ heir,” whenever used in the will of 'William Milhollen,' as in the will in that case, must receive its usual legal signification, and be regarded as the parties, who by the law in force at his widow’s death would have inherited her real estate. As she died in 1873, without children or descendants, by ¶11. §1 ch. 78 of Code of West Virginia, p. 484, then in force, her surviving husband, John Nice, washer sole heir, and being such, by virtue of William Milhollen’s will, he is entitled to one moiety of the proceeds of the sale of his lands, as his legatee pointed out by the will. As he takes these proceeds as legatee of William Milhollen, and not as heir or distributee of his wife, of course the marriage contract between him and his wife can in no manner affect his right to these proceeds. He does not get it from his wife, she never having had any interest in the proceeds of this land. Nor could she have prevented him from taking it, as the legatee pointed out by William Milhollen’s will, had she desired and willed it elsewhere, ’as he was her sole heir, and therefore no discrimination was left her by the will to be exercised.

Though the circuit judge, as his written opinion shows, misconceived the law in many respects; yet he reached the conclusion, that John Nice was entitled to the moiety of the proceeds of Wm. Milhollen’s lands, as sole heir of his wife, from whom he inherited a moiety of these lands. We have seen, that he is not so entitled; but that ho is nevertheless entitled to one moiety of the proceeds of these lands, as the legatee of Wm. Milhollen.

The decree does not state, in what capacity he is to receive this half of the proceeds of the sale of these lands; and being right in the disposition made of them, and in all other respects, it must be affirmed.

We have reached this conclusion by applying to Wm. Milhollen’s will, what I conceive to be established rules for construing wills. Had we paid no attention to these rules of construction, deduced from decided cases; but looked only to tbe wording of the will, and from it, and the circumstances surrounding the testator,- when the will was made and the testator died, we would have reached the same conclusion.

He gave two negroes to his wife, for life, remainder to his heirs. It is obvious, that he did not intend to make identically the same disposition of the balance of his personalty. If he had, the third clause of his will would never have been inserted. The first clause therefore obviously did not give her a mere life estate in the personalty, other than the negroes. If it had, it would have all gone to his heirs, i. e. distributees, after her death, precisely as the two negroes are directed to go.. The very words used in the first clause mean naturally, that she-should have an absolute property, and nota mere life estate. If that meaning could be regarded as doubtful, the third clause makes it entirely plain.

It is obvious from the second clause of his will, disposing of.his lands, that he intended that his wife should have a life estate, and only a life estate, in them; and that, on her death, they should be sold, and one-half of the proceeds should go. to his heirs, ,and the other half to her heirs, with this difference only, that his wife might select among her heirs, which of them she chose to have their half.

Disregarding all artificial rules of construction, no ordinary person could understand the language used, as giving her any inore than a life estate in the lands. This language is: “Idesire, that'all the lands belonging to me shall belong to my wife during her natural life, to use in any way she may think proper during her life.” It would seem impossible to misunderstand this language. It has but one meaning. And he directs, that, after her death, these lands, in which, it is obvious, she was only to have a life estate, were to be sold. Now, it may be asked, could he have directed them to be sold, after her death, if he intended her to have a fee simple in them, with power to sell them, and consume the proceeds in her life time ? Such power he never could have intended her to have. It would have rendered sense-' less his directions, that all his lands should be sold at her death,

Then with reference to the disposal of the proceeds of this sale, one-half of these proceeds is to go to his heirs. There can bo no doubt about what he meant by this; those, who would be entitled to his estate at his death, not those entitled to it, if he should happen to die immediately after writing his will — with reference to the other half of the proceeds of this sale he says: “They are to be at her disposal, to whom she thinks proper of her heirs.” Is not this the common sense meaning of these words, “to be disposed of by her amongst-her heirs, as she thinks proper ?” is it not obvious that he wanted them disposed of among her heirs, and not in any other manner ? And is it not equally obvious, that he wanted her, if she chose to exercise the right, to have a right to select among those heirs whomever she pleased ? If she did not have any choice, ami thus showed'her willingness, that it should go to them all equally, is it not obvious, that so holding would be carrying out the testator’s wish, that it should go to her heirs? This was his main purpose. His secondary purpose was to let his wife, if she chose, select among them. Would not any ordinary person unaided by decisions, say that, as by his heirs he meant those, who would inherit from him according to whatever law was in force, when he happened to die, so by her heirs he meant such persons, as would inherit from her according to whatever law was in force, when she died? This it seems to me is the plain meaning of his language. He did not mean her brothers and sisters, or her neices and nephews, whom he probably never saw, as their names and residences are still unknown. Had this been his meaning, he ■would have excluded even a child of his wife, if she should have afterwards had one. Is it possible, that ho meant this ?

But it is said he did not mean John Bice, a stranger to bis and her blood. He certainly meant a stranger to ' his own blood. It is not to be supposed, he was speculating, or caring, who would be the recipient of one moiety of the proceeds of the sale of these lands, so only he was an heir of his wife. He took for granted, that the law would make her heir, or heirs, the person or persons to whom she would naturally desire these proceeds to go. He could not possibly tell, who that would be; as an entire change of the relationship of his wife to others might take place after his death. He therefore said, it should go to her heirs.

It is assumed with great confidence, that had he contemplated her subsequent marriage, he would never have been willing, this property should go to her husband, but would certainly have wanted it to go to her collateral kindred. They were not only strangers to him in blood, but were probably entirely unknown to him. Why then should they have been preferred ? Is it not obvious, that his wife’s wishes were greatly to be consulted in the disposition of this half of the proceeds of this land? Was it not the wish of the testator, that her wishes should be consulted ? And did he not only require her to leave it, to which of her heirs she chose ? And can there be a doubt, that if her wishes were consulted, these proceeds would go to her husband, rather than to collateral relations, whom she probably never saw, and whose residences were yet unknown ?

But this is all mere surmising. The plain meaning of the testator was, that he would leave it to the law, at her death, to determine, who should be her heirs; and he could not possibly tell, who ought to be, when he wrote his will. The law then in force determined, that John Bice should be her heir ; and the will of the testator, according to the common sense meaning of the language he has used, is carried out by holding him entitled to one-half of the proceeds of this land.

The decree of the circuit court of May 17th, 1876, must therefore be affirmed; and the appellees must recover of the appellants, to be levied out of the assets of his intestate in. his hands to be administered, their costs about their defense in this Court expended, and $30.00 damages.

Judges Moore and Johnson concurred.

Judgment Affirmed.