Barker, J.
The question for decision is the extent to which Mrs. Miner has exercised upon the estate of her late husband the powers of disposition by will conferred upon her in the fifth and sixth clauses of his will.
As was said by Mr. Justice Charles Allen in Cumston v. Bartlett, 149 Mass. 243, 248, “The general rule is now well established in this Commonwealth, that a general residuary devise will operate as an execution of a power to dispose of property by will, unless there is something to show that such was not the testator’s intention. Amory v. Meredith, 7 Allen, 397. Willard v. Ware, 10 Allen, 263. Bangs v. Smith, 98 Mass. 270. Sewall v. Wilmer, 132 Mass. 131.” See also Hassam v. Hazen, 156 Mass. 93.
The power given to Mrs. Miner in the fifth clause covers “ all the household furniture, plate, pictures, fuel, provisions, books, watches; jewelry, ornaments, wearing apparel, and household articles of every description ” which belonged to Dr. Miner at his death, and is accompanied with a gift of the care and custody of all these articles, and is a power to dispose of them “ ultimately,” by will or otherwise, and is coupled with an expression of the testator’s confidence that she would exercise it by giving such memorials to personal friends and namesakes, both her own and those of the testator, as she might think best. The power given in the sixth clause covers the residue of the estate devised and bequeathed to the trustees after the payment of the debts, except the bond to Tufts College, the funeral expenses, the [193] expense of procuring and putting in order a burial lot and providing for the perpetual care of the same, the procuring of a monument, the pecuniary legacies of some $8,500 given by the third and fourth clauses, and not including the articles dealt with in the fifth clause, except as they might remain a part of the testator’s estate at the death of his wife. This residue the will contemplated would be held by the trustees, of whom the wife was one, until her death, save as she should from time to time make drafts upon it over and above the income, for her own comfort and support or for the comfort and support of others, as she might determine to be necessary, the only limitation of this power to draw upon the principal being that such drafts must not impair the sufficiency of the fund to discharge the bond to Tufts College payable at the wife’s death. In giving his wife the further power of disposal by her will, the testator states that since her wishes and his own entirely concur, and that since circumstances may arise that could not be then foreseen, he empowers her to devise and bequeath by her will any and all of the trust estate, not impairing the obligation mentioned, “ as in her judgment the interests we have at heart shall require.” These provisions were made less than three years before the testator’s death, and it is not suggested that between the date of the will and the time of the testator’s death, or in the interval of six days between his death and the making of his wife’s will, any unforeseen circumstances had arisen. Nor is it suggested that the testator was wrong in supposing that the wishes of his wife and his own entirely concurred.
While Mrs. Miner is given power to dispose by her will of the whole fund and property concerning which the plaintiff now asks for instructions, it is plain that she could not, without violating the faith reposed in her by the husband with whom she had lived for more than fifty years, change the disposition which he had given to the fund, save as in her judgment the interests which both had at heart should require. Among those interests were the benefit of the educational, religious, or charitable institutions with which Dr. Miner had been connected, and which he made his legatees by the provisions of the eighth and ninth articles of his will; and the bequests in his will for the benefit of those interests, unless his wife should order other[194] wise, were so large as to call for the application of the whole' fund.
The case thus differs from that of Amory v. Meredith, in which the rule of construction above mentioned was first adopted in this Commonwealth, and in which the power was one created by the testatrix whose will was held to have been an execution of the power, and in which the property over which the power was executed was property which had belonged to the testatrix absolutely, and had been by her for her own convenience placed in a trust of which she had the income, and which with the assent of the trustees she could terminate at her option, and by the terms of which, if she did not exercise her power, the trust property would go to her own heirs at law. In none of the cases in which the rule of Amory v. Meredith has been applied in our decisions was the power coupled by the donor with an expression of trust or confidence, and in none of them was the property over which the power was given already limited by the donor to benevolent or charitable purposes which would dispose of it in accordance with his own bequests, so far as the power should not be exercised. These considerations are entitled to some weight in determining how far Mrs. Miner intended to exercise by her will the powers conferred upon her, and the circumstances under which she made her own will are to be taken into account.
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Barker, J.
The question for decision is the extent to which Mrs. Miner has exercised upon the estate of her late husband the powers of disposition by will conferred upon her in the fifth and sixth clauses of his will.
As was said by Mr. Justice Charles Allen in Cumston v. Bartlett, 149 Mass. 243, 248, “The general rule is now well established in this Commonwealth, that a general residuary devise will operate as an execution of a power to dispose of property by will, unless there is something to show that such was not the testator’s intention. Amory v. Meredith, 7 Allen, 397. Willard v. Ware, 10 Allen, 263. Bangs v. Smith, 98 Mass. 270. Sewall v. Wilmer, 132 Mass. 131.” See also Hassam v. Hazen, 156 Mass. 93.
The power given to Mrs. Miner in the fifth clause covers “ all the household furniture, plate, pictures, fuel, provisions, books, watches; jewelry, ornaments, wearing apparel, and household articles of every description ” which belonged to Dr. Miner at his death, and is accompanied with a gift of the care and custody of all these articles, and is a power to dispose of them “ ultimately,” by will or otherwise, and is coupled with an expression of the testator’s confidence that she would exercise it by giving such memorials to personal friends and namesakes, both her own and those of the testator, as she might think best. The power given in the sixth clause covers the residue of the estate devised and bequeathed to the trustees after the payment of the debts, except the bond to Tufts College, the funeral expenses, the [193] expense of procuring and putting in order a burial lot and providing for the perpetual care of the same, the procuring of a monument, the pecuniary legacies of some $8,500 given by the third and fourth clauses, and not including the articles dealt with in the fifth clause, except as they might remain a part of the testator’s estate at the death of his wife. This residue the will contemplated would be held by the trustees, of whom the wife was one, until her death, save as she should from time to time make drafts upon it over and above the income, for her own comfort and support or for the comfort and support of others, as she might determine to be necessary, the only limitation of this power to draw upon the principal being that such drafts must not impair the sufficiency of the fund to discharge the bond to Tufts College payable at the wife’s death. In giving his wife the further power of disposal by her will, the testator states that since her wishes and his own entirely concur, and that since circumstances may arise that could not be then foreseen, he empowers her to devise and bequeath by her will any and all of the trust estate, not impairing the obligation mentioned, “ as in her judgment the interests we have at heart shall require.” These provisions were made less than three years before the testator’s death, and it is not suggested that between the date of the will and the time of the testator’s death, or in the interval of six days between his death and the making of his wife’s will, any unforeseen circumstances had arisen. Nor is it suggested that the testator was wrong in supposing that the wishes of his wife and his own entirely concurred.
While Mrs. Miner is given power to dispose by her will of the whole fund and property concerning which the plaintiff now asks for instructions, it is plain that she could not, without violating the faith reposed in her by the husband with whom she had lived for more than fifty years, change the disposition which he had given to the fund, save as in her judgment the interests which both had at heart should require. Among those interests were the benefit of the educational, religious, or charitable institutions with which Dr. Miner had been connected, and which he made his legatees by the provisions of the eighth and ninth articles of his will; and the bequests in his will for the benefit of those interests, unless his wife should order other[194] wise, were so large as to call for the application of the whole' fund.
The case thus differs from that of Amory v. Meredith, in which the rule of construction above mentioned was first adopted in this Commonwealth, and in which the power was one created by the testatrix whose will was held to have been an execution of the power, and in which the property over which the power was executed was property which had belonged to the testatrix absolutely, and had been by her for her own convenience placed in a trust of which she had the income, and which with the assent of the trustees she could terminate at her option, and by the terms of which, if she did not exercise her power, the trust property would go to her own heirs at law. In none of the cases in which the rule of Amory v. Meredith has been applied in our decisions was the power coupled by the donor with an expression of trust or confidence, and in none of them was the property over which the power was given already limited by the donor to benevolent or charitable purposes which would dispose of it in accordance with his own bequests, so far as the power should not be exercised. These considerations are entitled to some weight in determining how far Mrs. Miner intended to exercise by her will the powers conferred upon her, and the circumstances under which she made her own will are to be taken into account.
If, as the executors of Mrs. Miner’s will contend, it was her intention to exercise her powers of disposition by will over all the property to which that power extended, the simple and natural way of carrying out that intention would have been to bequeath to her sister the sum of one thousand dollars, given in her first bequest, and then to devise and bequeath all the residue of her own property, and of that over which she had power, to Miss Field. Instead of this, she provides in one clause for the giving of one thousand dollars to her sister, and of four thousand dollars to Miss Field, both sums to be paid out of the residue of Dr. Miner’s estate, and stating that she thereby exercises her power of appointment. She then by another clause gives to Miss Field two classes of property, separately designated and defined by these words, “All the rest, residue, and remainder of my estate, real and personal, together with the horse, car[195] riages, harnesses, and carriage furnishings, and the household furniture and personal effects, and the library left by my said husband,” the full sentence being this: “ All the rest, residue, and remainder of my estate, real and personal, together with the horse, carriages, harnesses, and carriage furnishings, and the household furniture and personal effects, and the library left by my said husband, exercising hereby the power of appointment vested in me, I give, devise, and bequeath to my niece, Maria Louisa Field.” A majority of the court are of opinion that the first portion of this sentence was intended by the testatrix to deal only with the property which, when the will was made, was her own, and which she could dispose of without being thereto empowered by the provisions of her husband’s will; and that the second portion of the sentence, beginning with the words “ together with,” and enumerating a number of classes of articles of which she had no power to dispose, except under the authority given by her husband’s will, is all to which the clause “ exercising hereby the power of appointment vested in me ” refers. It is urged that her own property was of no substantial value, and that she had no real estate of her own, while the language is, “all the rest and residue and remainder of my estate, real and personal.” But every woman in the position in life of the testatrix has many belongings which, while of no substantial value, are her estate, and a natural construction of the whole phrase is that it means all of her own property of every kind. There is nothing in this clause of the will to indicate that the testatrix was here dealing with any considerable amount of property, or was making a disposition which would render nugatory the bequests which her husband had made to the numerous institutions with which he had been connected. The expressions of confidence that her niece will make a disposal of a portion of the property so coming to her as she knows to be in accordance with the wishes of the testatrix, and the statement that the niece shall not be charged with any trust in regard to the property nor required to account to the Probate Court for her disposal thereof, are entirely consistent with the theory that this clause of the will dealt only with Mrs. Miner’s own personal belongings, and with certain classes of chattels which had been owned by her husband, and with the ultimate disposition of many of [196] which she had been charged by her husband in the fifth clause of his will, and neither the concluding sentence, nor the clause as a whole, seems to us to show that the testatrix intended by it to do more than to dispose of the property which she had independently of her husband’s will, and of the chattels coming from him and included in the classes specifically designated.
In our opinion the natural construction of the whole clause is that the testatrix gives all of her own property, not needed for the payment of debts and charges of administration, to the niece to whom she had just given four thousand dollars out of Dr. Miner’s estate, and that she gives her in addition, by way of appointment under the powers, the horse, carriages, harnesses,, and carriage furnishings, and the household furniture and personal effects and library left by Dr. Miner, exercising to that extent only her power of appointment. The niece had a legacy of five hundred dollars from Dr. Miner, and this and the four thousand dollars given her in the preceding clause were to be hers absolutely. In our view, it is more likely that the expressions of confidence that the niece would make a disposal of a portion of the property coming to her under the third clause in accord- • anee with the wishes of the testatrix were used with reference to what would go to the niece under our construction of the clause, than that they were intended to influence her with reference to the disposition of the large fund which would go to the niece under the other construction. That fund had been devised and bequeathed by Dr. Miner in accordance with wishes and purposes shared in by Mrs. Miner, and her own dispositions were to take effect when all further necessity of applying any portion of the fund to her own comfort or support, or to necessities caused by unforeseen circumstances were at an end, and when, unless she saw fit to provide otherwise, her husband’s gifts were to take effect. If she had intended to create a new period of suspense, and to commit the interests which both she and her husband had at heart to the will or conscience of her niece, she would have used other and more explicit language, even if she had not stated in terms the circumstances which impelled her to a course which the circumstances show would have been strange and unnatural. On the other hand, if the gift was only of the [197] personal belongings of herself and of her late husband, the giving of them to the niece, in confidence that she would do with some part of them what she knew the testatrix to wish, was entirely natural, and was in furtherance of the purposes of her husband’s will. The other construction would require us to believe that, within a very few days after her husband’s death, for no reason expressed by her, or indicated by the circumstances in which she acted, she intentionally defeated the charitable and benevolent purposes declared by his will.
A majority of the court is of opinion that there is enough to show that it was not the intention of Mrs. Miner to execute her powers of appointment further than to give to her sister a legacy of one thousand dollars, and to her niece a legacy of four thousand dollars and the chattels comprised in the classes of articles mentioned in the third clause of the will, and the petitioner should be instructed accordingly. So ordered.