
    BENJAMIN WEBB, et al., as Admr’s., &c. v. DAVID B. SANFORD.
    
      Will—devise of life estate, with limited power of disposition.
    
    Where the will gives the devisee, the testator’s wife, a life estate in his-. real property, and then provides, “ it is my will that.....my real estate be at the disposal of my wife for distribution among her own relatives,”—upon the death of such devisee without the exercise of this power, the fee is held by the heirs of the testator, free from such power.
    Upon construction of the will in question in this case, held that it gave-to the widow only a life estate in the realty, with a limited power of disposition thereof.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided November 21, 1887.
    Questions submitted to the court upon an agreed state of facts, under section 1279 of the Code of Civil Procedure.
    The facts are substantially as follows —One Benjamin Webb, in his lifetime, made and published his last will and testament, dated the 11th day of June, 1840, in due form of law, to pass real estate under the laws of the state of New York. By this will he gave his wife, therein named, all his household furniture and certain other property, and the use and improvement of all his real estate during her natural life for her support. He then directed that one third of his “ real estate be at the disposition of his wife for distribution among her own relatives.” The remaining two-thirds of his real estate he gave and bequeathed to certain of his relatives who were named in the will, and he then directed that at the decease of his wife his real estate be sold and divided and paid over as above directed. Said Benjamin Webb died in the month of August, 1840, without issue and with■out in any manner having revoked or altered the devises contained in the said will, which was duly proved ■and admitted to prohate according to law, as the last will and testament of the real and personal estate of the said Benjamin Webb, deceased, before the surrogate of the county of New York, on or about the 22d day ■of September, 1840. The wife of the said Benjamin Webb survived him, and died in the year 1870, intestate, without having made any disposition among her-•relatives of the one third of the testator’s real estate, relerred to in said will.
    The question which is submitted to the court is as •follows: Did the one third of the real estate of the said Benjamin Webb, as to which the said will provided as follows: “ It is my will that one-third of my real estate be at the disposal of my wife, for distribution among her own relatives”—the widow of said testator having died without making any distribution of the same—descend to the heirs of the said Benjamin Webb, the testator above named?
    It was agreed that if this question was answered in the ■affirmative, judgment was to be rendered against the said defendant for a certain amount, and that if the •question was answered in the negative, then judgment is to be rendered in favor of the defendant against the plaintiffs.
    
      Stapler & Wood, for the plaintiffs :
    I. The estate granted to Mrs Webb under the will was a limited estate, viz.: An estate for life, and the power of distribution which was placed at her disposal was not absolute, but limited in the scope of its exercise to a particular class; the fee, therefore, did not become vested in Mrs. Webb, but descended to the heirs of the testator, subject to being divested by the exercise of the power placed at her disposal. Her death without embracing the opportunity afforded her by the testator of .showing favor to her relatives, if she should see fit to do so, left an indefensable estate in fee simple to the heirs, since the fulfillment of the condition of the divestment of the estate, viz.: the desire of Mrs. Webb to benefit some one or all of her relatives, as expressed by the exercise of the power, was forever rendered impossible. See Sugden on Powers, 179; Liefe v. Sattingstone, 1 Mod. 189 ; Bradley v. Westcott, 13 Ves. jr. 445; Jackson v. Robinson, 16 John. 537; Flimthan’s Appeal, 11 S. & R. 23.
    II. The Revised Statutes, while enlarging the life estate accompanied by an absolute power of disposition of the remainder to a fee, have not changed the rule established by the common law, that where the estate is for life, and the power of disposition is not absolute but limited, the estate' for life is not enlarged to a fee. 3 R. S., Banks, 7th ed., p. 2, 189, § 81. An absolute power of disposition is defined by the Revised Statutes as follows : “ Every power of disposition shall be deemed absolute by means of which the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit.” 3 R. S., Banks, 7th ed., p. 2, 189, § 85. That the devisee of a life estate accompanied by a limited power of disposition of the remainder, and especially by a mere power of appointment, in the event of the life tenant desiring to execute the same, does not create a fee in the life tenant under the Revised Statute is not only clear from the above considerations, but is well settled by unquestioned authority. Terry v. Wiggins, 7 N. Y. 514 ; Trustees of Auburn Seminary v. Kellogg, 16 N. Y. 83; Taggart v. Murray, 53 N. Y. 233 ; Smith v. Van Ostrand, 64 N. Y. 278. See also Van Horn v. Campbell, 100 N. Y. 301.
    III. It is therefore clear that Mrs. Webb did not take a fee in this one third of the real estate in question, and this result clearly harmonizes with the intent of this testator. This intent is clear. He provided for the vesting of two-thirds of his real estate by specific divises. But as to the remaining one third he provides : “It is my will that one third my real estate be at the disposal of my wife for distribution among her relatives.” There is here no specific clause ipso facto changing the title of this estate from himself and his heirs to specific devisees; but in words indicating as clearly as the English language can express the purpose that one third of his real estate is to be, to remain in its then status of ownership, with liberty to his widow, if she sees fit to do so, to divert it to her own relations. The volition of Mrs.'Webb to so divert it is the necessary step to be taken before the property can be changed from its status as the undisposed of realty of. the testator, expressly so left by him in order that his widow, if she saw fit, might have the liberty of disposing of it to her relatives. The phrase “ at the disposal of ” also clearly shows this intent. The phrase is the ordinary phrase of our language which is used to permit the use by another of one’s property while retaining the full ownership and control of it until such permission is accepted.
    IV. There is nothing in this clause which justifies its construction as a “trust power,” or as a technical statutory power. There is no possible construction whereby the clause can be made imperative. There is no possible direction, no wish, no condition; merely an opjDortunity given for Mrs. Webb to exercise it, if she chooses. In the nature of things there is a wide distinction between a power and a trust. In the former a party may or may not act in his discretion. Story s Eq. Jur., § 1007; 2 Redfield Wills, 412. The power to appoint is considered a trust, in default of complete appointment, where the direction to appoint is imperative and the subject matter and the objects of the power can be distinctively defined. 4 Vesey, 708; 2 Hill, 569. Even if the words of this will were of doubtful import, a trust would not be spelled out by the court, since “ the tendency of modern decisions is not to extend the rule or practice which from "words of doubtful meaning deduces or implies a trust.” Foose v. Whitmore, 82 N. Y. 406.
    
      Charles W. Dayton, for defendant.
   By the Court.—Truax, J.

While it is well settled that a valid executory devise cannot at common law be limited after a fee, upon the contingency of the non-execution of an absolute power of disposition vested in the first taker, it is to be noticed that the first taker under the will of Mr. Webb did not have an absolute power of disposition. Her power of disposition was limited to the persons therein named, namely, her relatives; and :a disposition made otherwise than among her relatives would have been illegal and void. For this reason the will does not fall within the rule laid down by the court •of appeals in Van Horne v. Campbell, 100 N. Y. 287.

We are of the opinion that the will gave to the wife ■a life estate in the property with a limited power of •disposition, to be exercised by her in the method provided in the will; and that upon her death before any •exercise of this power of disposition, the heirs of the "testator held the fee freed from the power.

Judgment is ordered for the plaintiff for the amount ".mentioned in the consent.

.Sedgwick, Ch. J,, and Freedman, J., concurred.  