
    * MIDDLESEX.
    Minot and Others versus Prescott.
    This was an ejectment for land in Middlesex, wherein a special verdict was found; that one J. Betton, on the 17th of July; 1776, being seised of the premises, made his last will, and devised to his wife Mary the income of his real and personal estate during life; and if not sufficient to support her comfortably, then power to sell any of his estate for that purpose ; and to will and dispose of all the wearing apparel, plate, and furniture, of which he should die possessed. It was further found that, on the 11th of December, 1776, the said Mary granted the premises in fee unto the defend ant, for a valuable consideration; and that, if evidence could be admitted (notwithstanding the deed to the defendant) to prove the income, &c., sufficient, &c.,- then that it was sufficient for her comfortable support. And whether, on the whole matter, the demandants could recover, the jury prayed the advisement of the Court, &c.
    
      Hichborn, for the tenant, contended,— 1.
    That the will gave a fee to Mary, the wife.— 1 Leon. 283.—2 Wils. 6.— 2. If not a fee, yet, under the power in this will, she was the sole judge of the insufficiency of the income, to support her comfortably; and no averment against the presumption of the insufficiency of the estate, arising from the making of the deed, ought to be allowed.
    
      Loivell, for the demandants,
    cited Sir W. Jones, 137. Cro. Car. 335, Dyke vs. Ricks, S. C., where it was adjudged, on a will devising that, “ if it plainly appear that sufficient goods and chattels cannot be found to pay debts, &c., then power to sell lands sufficient for that purpose, and no more,” that the insufficiency of the goods and chattels was a condition precedent, and ought to. be averred and proved.
   Cushing, C. J.

This is not a fee simple. The power is not to dispose at will and pleasure, as in the case cited from Wilson, but on the happening of a particular event, viz., the income proving insufficient to support the wife comfortably. This is a precedent condition; and was so adjudged in the * case of. Dike vs. Ricks, where the clause in the will' was substantially the same with that in the present case. The happen ing of this condition ought to have been stated in the deed to Picscott, as well as shown in the verdict, in order to entitle the defendant to judgment. It is a matter which can be traversed ; and as the jury have found that there was a sufficiency of personal estate for the comfortable support of the widow, this conveyance cannot be supported. I am therefore clearly of opinion that the demandants ought to have judgment on this special verdict And so adjudged per Cunarn una voce.  