BETTS, District Judge.
The points considered and decided by the court are: (1) The due execution of the power under the will, in the conveyance of the premises in question in fee to Halsey Rogers, on the 20th of January, 1827; (2) The sufficiency of the endorsement made by Col. Burr on the deed to Rogers, as a compliance with the directions of the will.
1. We regard it as settled, by the courts of this state, on the effect of the will of Medcef Eden, that Rachel Eden had only a naked power in respect to the disposition of the estate, and that the power could be rightfully exercised only by a sale of the estate in fee. Waldron v. McComb, 1 Hill, 111; McComb v. Waldron, 7 Hill 335; Bloomer v. Waldron, 3 Hill, 361. If the demise to Norsworthy, on the 1st of January, 1825, was intended as a conveyance under the power in the will, it would be void, as not fulfilling the declared intent of the testator, because not a sale of the estate for cash, or something which could be invested as its representative. Bloomer v. Waldron, 3 Hill, 361. But Rachel Eden, having an absolute estate for her. widowhood, could lease that, independently of the power of sale: and, whether she demised it in gross by a description appropriate to her special interest, or conveyed it for a term of years which might outrun the duration of her interest, the demise would be good for the interest she had, and only void for any surplus of the term unexpired at her decease. Bac. Abr., “Leases,” I, 2; A Com. Dig. (Day’s Ed.) 63, notes: Sinclair v. Jackson, 8 Cow. 543; Clarke’s Lessee v. Courtney, 5 Pet. [30 U. S.] 319. The lease purports to be executed by her, as executrix and trustee, but it also sets forth at large the will by which her personal interest is created, and the conveyance will, upon settled principles of law, be supported to the extent of her authority to make it as donee of the estate. Sugd. Powers, 298. She being tenant for life, unless she should re-marry, the demise was good for the amount of her interest, and she would never have been allowed to reclaim the premises from the lessee during her life, or before the expiration of the twenty-one years, on the allegation that she liad no rightful power, as executrix and trustee, to execute a lease, even though it had been executed by her with a formal declaration that she acted solely under the power of sale in the will. But the lease, though inartificially drawn, in no way limits the grant to the power of sale. On the contrary, it indicates, with a distinctness that can leave no doubt, an intention to grant the interest of the lessor, as well as to exercise a supposed power to convey a term beyond that. There was clearly nothing in the power of sale in the will which authorized the limitations as to rent contained in the lease, and. as those limitations are in consonance with the actual interest of Rachel Eden and Pelletreau, the instrument would naturally be construed so that the grantee might be assured of all the interest the widow had in her own right, and so as to correspond with honest and fair dealing on her part. These considerations show that the lease, operating only to convey the vested interest of the lessor during her widowhood, created no impediment to the exercise of her power of sale; and that the sale in fee, on the 29th of January, 1827, to Rogers, became valid and effectual, if so executed in point of form as to give it operation under the will.
[1366]*1366It is contended that the outstanding term of years granted by the trustee to Norsworthy was injurious to the devisees, in preventing a sale for the full value of their interests, and also that the sale to Rogers was in fact for an inadequate consideration. Questions touching the discreet and beneficial exercise of the power of sale belong to a court of chancery, and not to one of law. The devisees might, by bill, have had relief against the trustee, if she executed her trust improvidently and to their prejudice, and against the purchaser, also, if he knowingly induced such act and colluded with her in its commission. Franchot v. Leach, 5 Cow. 506; Champion v. White, Id. 510; Jackson v. Hills, 8 Cow. 290, 203; Taylor v. King, 6 Munf. 358. But, upon its face, the conveyance to Rogers is valid, in so far as Mrs. Eden’s capacity to execute it is concerned, and must so operate at law against the remainder-men, unless its execution was defective for want of compliance in form with the directions of the will.
2. The power to sell is given by the will, with a proviso, ‘‘that Aaron Burr shall, in writing, signed with his hand, approve and consent to such sale, but no sale shall be valid without such approbation and consent.” The argument for the defendant concedes, as broadly as the plaintiffs contend, that this power . must be strictly pursued, so far as it is directory as to persons, time and mode of execution. It is needless to rehearse the authorities for this doctrine, which is fundamental on this point. There can be no question that the deed by the trustee was inoperative and void, unless Aaron Burr, in writing, signed with his hand, approved and consented to the. sale. His consent and approbation in writing was made a vital part of the power. No form or method of conveyance could be devised omitting such consent, which would satisfy the special qualification of the power. No consent or approbation could be given by Col. Burr which would render the deed efficacious, except in the specific mode pointed out by the will. Sugd. Powers, 264; Hawkins v. Kemp, 3 East, 410; Taylor v. Horde, 1 Burrows, 60, 120; Daly v. James, 8 Wheat. [21 U. S.] 495; Clarke’s Lessee v. Courtney, 5 Pet. [30 U. S.] 319, 349, 350; Sinclair v. Jackson, 8 Cow. 543. It is, perhaps, not going too far to say, that the cases at law demand a precise and literal exercise of the power, to satisfy the rule. Daly v. James, 8 Wheat. [21 U. S.] 495. 535; Hawkins v. Kemp, 3 East, 410; Sugd. Powers, 210, 212.
Whenever a particular form is prescribed, no other may be adopted as equivalent to it, and the only question here is, whether the will has declared the formula with which the consent and approbation of Col. Burr shall be expressed. The manner must be in writing, and the writing must be signed by him. Both of these particulars have been fulfilled in this case, and we think that these are the only directions in the will which need be literally and exactly complied with. The conveyance is perfect in all its formalities when so framed, and, if the writing, so signed, expresses the consent and approbation of Col. Burr to the sale, there is no limitation to the use of those precise words in order to convey the consent. The will manifestly shows that the testator intended to secure the concurrence of Col. Burr to the conveyance and the investment of the proceeds, and it defines the manner in which his concurrence shall be communicated. This, however, does not necessarily import that the consent and approbation itself—the assent of Col. Burr’s mind—must be shown by the employment of those very expressions. Otherwise, any departure from those identical words would vacate the deed, although the consent and approbation of Col. Burr were expressed with a fullness and certainty beyond all question. Suppose Col. Burr had written and subscribed a declaration on the deed, that he well knew its terms and purpose and • had advised the sale, and that it met liis fullest concurrence, and was in all respects satisfactory to him—could any court deny that this was consent and approbation on his part? We are satisfied that no more is requisite on this point, than for the grantee to show that the writing signed by Col.
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BETTS, District Judge.
The points considered and decided by the court are: (1) The due execution of the power under the will, in the conveyance of the premises in question in fee to Halsey Rogers, on the 20th of January, 1827; (2) The sufficiency of the endorsement made by Col. Burr on the deed to Rogers, as a compliance with the directions of the will.
1. We regard it as settled, by the courts of this state, on the effect of the will of Medcef Eden, that Rachel Eden had only a naked power in respect to the disposition of the estate, and that the power could be rightfully exercised only by a sale of the estate in fee. Waldron v. McComb, 1 Hill, 111; McComb v. Waldron, 7 Hill 335; Bloomer v. Waldron, 3 Hill, 361. If the demise to Norsworthy, on the 1st of January, 1825, was intended as a conveyance under the power in the will, it would be void, as not fulfilling the declared intent of the testator, because not a sale of the estate for cash, or something which could be invested as its representative. Bloomer v. Waldron, 3 Hill, 361. But Rachel Eden, having an absolute estate for her. widowhood, could lease that, independently of the power of sale: and, whether she demised it in gross by a description appropriate to her special interest, or conveyed it for a term of years which might outrun the duration of her interest, the demise would be good for the interest she had, and only void for any surplus of the term unexpired at her decease. Bac. Abr., “Leases,” I, 2; A Com. Dig. (Day’s Ed.) 63, notes: Sinclair v. Jackson, 8 Cow. 543; Clarke’s Lessee v. Courtney, 5 Pet. [30 U. S.] 319. The lease purports to be executed by her, as executrix and trustee, but it also sets forth at large the will by which her personal interest is created, and the conveyance will, upon settled principles of law, be supported to the extent of her authority to make it as donee of the estate. Sugd. Powers, 298. She being tenant for life, unless she should re-marry, the demise was good for the amount of her interest, and she would never have been allowed to reclaim the premises from the lessee during her life, or before the expiration of the twenty-one years, on the allegation that she liad no rightful power, as executrix and trustee, to execute a lease, even though it had been executed by her with a formal declaration that she acted solely under the power of sale in the will. But the lease, though inartificially drawn, in no way limits the grant to the power of sale. On the contrary, it indicates, with a distinctness that can leave no doubt, an intention to grant the interest of the lessor, as well as to exercise a supposed power to convey a term beyond that. There was clearly nothing in the power of sale in the will which authorized the limitations as to rent contained in the lease, and. as those limitations are in consonance with the actual interest of Rachel Eden and Pelletreau, the instrument would naturally be construed so that the grantee might be assured of all the interest the widow had in her own right, and so as to correspond with honest and fair dealing on her part. These considerations show that the lease, operating only to convey the vested interest of the lessor during her widowhood, created no impediment to the exercise of her power of sale; and that the sale in fee, on the 29th of January, 1827, to Rogers, became valid and effectual, if so executed in point of form as to give it operation under the will.
[1366]*1366It is contended that the outstanding term of years granted by the trustee to Norsworthy was injurious to the devisees, in preventing a sale for the full value of their interests, and also that the sale to Rogers was in fact for an inadequate consideration. Questions touching the discreet and beneficial exercise of the power of sale belong to a court of chancery, and not to one of law. The devisees might, by bill, have had relief against the trustee, if she executed her trust improvidently and to their prejudice, and against the purchaser, also, if he knowingly induced such act and colluded with her in its commission. Franchot v. Leach, 5 Cow. 506; Champion v. White, Id. 510; Jackson v. Hills, 8 Cow. 290, 203; Taylor v. King, 6 Munf. 358. But, upon its face, the conveyance to Rogers is valid, in so far as Mrs. Eden’s capacity to execute it is concerned, and must so operate at law against the remainder-men, unless its execution was defective for want of compliance in form with the directions of the will.
2. The power to sell is given by the will, with a proviso, ‘‘that Aaron Burr shall, in writing, signed with his hand, approve and consent to such sale, but no sale shall be valid without such approbation and consent.” The argument for the defendant concedes, as broadly as the plaintiffs contend, that this power . must be strictly pursued, so far as it is directory as to persons, time and mode of execution. It is needless to rehearse the authorities for this doctrine, which is fundamental on this point. There can be no question that the deed by the trustee was inoperative and void, unless Aaron Burr, in writing, signed with his hand, approved and consented to the. sale. His consent and approbation in writing was made a vital part of the power. No form or method of conveyance could be devised omitting such consent, which would satisfy the special qualification of the power. No consent or approbation could be given by Col. Burr which would render the deed efficacious, except in the specific mode pointed out by the will. Sugd. Powers, 264; Hawkins v. Kemp, 3 East, 410; Taylor v. Horde, 1 Burrows, 60, 120; Daly v. James, 8 Wheat. [21 U. S.] 495; Clarke’s Lessee v. Courtney, 5 Pet. [30 U. S.] 319, 349, 350; Sinclair v. Jackson, 8 Cow. 543. It is, perhaps, not going too far to say, that the cases at law demand a precise and literal exercise of the power, to satisfy the rule. Daly v. James, 8 Wheat. [21 U. S.] 495. 535; Hawkins v. Kemp, 3 East, 410; Sugd. Powers, 210, 212.
Whenever a particular form is prescribed, no other may be adopted as equivalent to it, and the only question here is, whether the will has declared the formula with which the consent and approbation of Col. Burr shall be expressed. The manner must be in writing, and the writing must be signed by him. Both of these particulars have been fulfilled in this case, and we think that these are the only directions in the will which need be literally and exactly complied with. The conveyance is perfect in all its formalities when so framed, and, if the writing, so signed, expresses the consent and approbation of Col. Burr to the sale, there is no limitation to the use of those precise words in order to convey the consent. The will manifestly shows that the testator intended to secure the concurrence of Col. Burr to the conveyance and the investment of the proceeds, and it defines the manner in which his concurrence shall be communicated. This, however, does not necessarily import that the consent and approbation itself—the assent of Col. Burr’s mind—must be shown by the employment of those very expressions. Otherwise, any departure from those identical words would vacate the deed, although the consent and approbation of Col. Burr were expressed with a fullness and certainty beyond all question. Suppose Col. Burr had written and subscribed a declaration on the deed, that he well knew its terms and purpose and • had advised the sale, and that it met liis fullest concurrence, and was in all respects satisfactory to him—could any court deny that this was consent and approbation on his part? We are satisfied that no more is requisite on this point, than for the grantee to show that the writing signed by Col. Burr does give his consent and approbation to the sale, and that the omission to employ that precise phraseology is not decisive of the inquiry.
At the foot of the deed, and directly following the signature of the trustee, Col. Burr wrote: “I consent to the above,” and subscribed his name to it. We think that “consent” in this connection involves “approbation” also, even if the two expressions are not of equal and common value. Indeed, if any distinction can be made in the import and force of the words, it would appear that the testator used “consent” as the most significant and effective. If, as the supreme court intimate in Clarke’s Lessee v. Courtney, 5 Pet. [30 U. S.] 319, 350, overniceties and refinements are not to be disregarded in construing powers to sell and convey lands, certainly no more extreme rigor of construction will be applied to defeat a bona fide attempt to execute a power, than to uphold it. In both cases, the intention of the party creating the power is to control its construction, and the substantial fulfilment of that intention is all that will be required. Wilson v. Troup, 7 Johns. Ch. 25, 33; Pomery v. Partington, 3 Term R. 665; Griffith v. Harrison, 4 Term R. 737, 743, 748, 749. In view of these principles, whatever stress of interpretation is applied to “approve,” no sound and satisfactory distinction can be stated carrying its meaning beyond that of “consent.” Especially, as the words are used in the will— “approve and consent to such sale”—“consent to” is grammatically, if not intrinsically, the positive and operative phrase. For. “approve” can have no sense, as it is placed in the clause, without the transposition of “such sale” or of “approve” itself, so as to bring the three words in direct connection. As it stands, and literally construed, “approve” is valueless, having no grammatical connection with “sale.” Al[1367]*1367though the court, in effectuating the intent of the testator, and looking to the substance of the power, would certainly not suffer a fault in syntax to work its destruction, yet, upon a nice point of' synonymy or- tautology, the criticism made may not be without influence in indicating whether the intent and direction of the testator are not wholly conveyed by the word “consent.” Aside from such hypercritieism, we think that the written “consent” of Col. Burr to the sale necessarily imports his “approbation,” and that the requirements of the power are thereby satisfied. TVe do not perceive that any further significance would be afforded by using both words. No import or effect is pointed out as legally applicable to both terms, which “consent,” as employed, does not of itself express. We are to assume that the trustee and Col. Burr acted in good faith towards the grantee, and intended that the deed should be executed conformably to the power, and the “consent” of Col. Burr to the sale and conveyance for tliat purpose must be regarded as involving his “approbation” of both. Judgment for defendant.