
    *Shearman’s Adm’r & al. v. Hicks & als.
    October Term, 1857,
    Richmond.
    Conveyance of Land — Power of Appointment — Case at Bar. — T conveys land to S and C bis wife, to have and to bold tbe same to S for bis life, with reversion to G and her heirs. And S covenants with T and C that she shall have the privilege during coverture to nominate “by last will and testament or power of appointment,” in the presence of two witnesses, such person or persons as she might designate for her heir or heirs to the property aforesaid after the death of S. O died in the lifetime of S, having made an olograph will, by which she devised the property. Held :
    1. Same — Same.—The deed to S and C his wife conferred on her the power of disposing of the land in the lifetime of S.
    2. Same — Same—Execution of. — The power of disposition was properly executed by an olograph will; the provision for two witnesses applying not to the disposition by will; but to other modes of executing the power.
    In October 1833 Kimble Hicks conveyed, to his daughter Celia Shearman certain slaves and a tract of land. At that time Celia Shearman was married to Thomas Shearman; and they, being childless, by deed bearing date the 16th of March 1835, conveyed this land to John Timberlake. This deed is upon the consideration of one dollar, but it is absolute upon its face; and is with general warranty. By deed bearing date the 18th of March 1835, Timberlake conveyed this same land, on the same consideration, to Thomas Shearman and Celia his wife; to have and to hold the same to-Thomas Shearman during his natural life, with reversion in fee to the said Celia Shearman and her heirs. And Thomas Shearman covenanted with Timberlake and the said Celia Shearman, that she should have the privilege, whether she should choose to execute it during the coverture or not, to nominate, by last will and testament, or power of appointment, in the presence of two witnesses, such person or persons *as she might designate for her heir or heirs to the property aforesaid after the death of the said Thomas Shearman. These two last deeds were recorded on the same day. Mrs. Shearman died in 1851, during the lifetime of her husband, having made a will in May of that year, which was duly admitted to probate in the Circuit court of Eauquier county. This was an olograph will; and by it she gave the aforementioned tract of land, after the death of her husband Thomas Shearman, to Kimble G. Hicks, jr., and directed that he should pay to her niece Celia Edmunds one hundred and fifty dollars annually, during her life.
    In January 1854 Thomas K. Hicks and others, the. heirs at law of Celia Shearman, filed their bill in the Circuit court of Eau-quier county, against Thomas Shearman in his own right, and as executor of Celia Shearman, Kimble G. Hicks, jr. and Celia Edmunds, in which the3r insisted that the deed from Timberlake to Shearman and wife did not vest Mrs. Shearman with the power to dispose of the land in the lifetime of her husband; and further, that if she did have the power, it was not properly executed by an olograph will: And they claimed the land as her heirs at law. Shearman answered the bill, stating that the object of the conveyance to Timberlake and from him to himself and wife, was to secure to him a life estate in the land, and to authorize Mrs. Shearman to dispose of it in the lifetime of her husband.
    In the progress of the cause an issue was directed to ascertain if any, and if any, how much of the paper admitted to probate as the will of Celia Shearman, was her will. The jury found a special verdict setting out the facts herein before stated; and referred the question of law to the court. And the court at its April term 1855, made a decree setting aside the paper as not the true last will of Celia Shearman.
    Shearman having died before the final decree, and *the suit having been revived against the administrator de bonis non with the will annexed of Mrs. • Shearman, he and Kimble G. Hicks, jr. applied to this court for an appeal; which was allowed.
    Morson, for the appellant, insisted:
    1st. That the covenant by Thomas Shear-man the husband, with Timberlake, was effectual to give to Mrs. Shearman the power to make a will disposing of the land conveyed in the deed from Timberlake to Shearman and wife. That no form .of words was necessary, but any provision which expressed the intention of the parties would have the effect to give the wife the power. 1 Sugd. Powers 116, 257, 15 Haw Libr. ; Hunt v. Kousmainere’s adm’r, 1 Peters’ R. 1, 13 to 17; 2 Story’s Equ. Jur. I 1388, 1389, 1390, 1392.
    2d. That the power was duly executed by an olograph will. He insisted that that deed provided two modes by which Mrs. Shearman might dispose of the property; one by will, the other by power of appointment in the presence of two witnesses. He referred to Sugd. on Powers 287, 288, and the cases cited there ; Dormer v. Thurland, 2 P. Wms. 506; Earl of Darlington v. Pultney, 1 Cowp. R. 260; Ross v. Ewer, 3 Atk. R. 156; Doe v. Morgan, 7 T. R. 103; Dunn v. Amey, 1 Eeigh 465; Phoebe v. Boggess, 1 Graft. 129. He also referred to 3 Lomax’s Dig. 11, note 1, to show that since the Code of 1849 a married woman may devise her separate real estate, without any express authority to do so in the instrument giving the estate to her. See Code, ch. 122, | 3, p. 516.
    R. T. Daniel, for the appellee, insisted:
    1st. That the Code of 1849 did not change the law as to the execution of a power by a married woman, as was evident from the fifth section of ch. 122, in which married women are expressly excepted out of *the provision dispensing with any peculiar modes of executing wills required in the instruments giving the power of appointment.
    2d. That the covenant in the deed from Timberlake did not give to Mrs. Shearman authority to make a will. He referred to West v. West’s ex’ors, 3 Rand. 373; Roper on Husband and Wife, ch. 18, 19, 32 Law Libr. ; 2 Thomas’ Coke 586, marg. note a, p. 124; note q, p. 578; 2 Sugd. Powers, ch. 8, (j 3; 1 Sugd. Powers, ch. 3, $ 1.
    3d. That the power, if it existed, was not properly executed by an olograph will. He referred to 2 Thomas’ Coke 587, marg. note; 1 Sugd. Powers, ch. 6, $ 3; Doe v. Thorley, 10 East’s R. 442; Williamson v. Beckam, 8 Leigh 20.
    
      
      Conveyance in Pee — Superadded Power of Appoint» ment. — In Thorndike v. Reynolds, 22 Gratt. 34, it was said: “Mr. Spence says, in his work on Equitable Estates and Interests, — If an estate be conveyed to a married woman in fee, with a superadded power of appointment, though it was formerly held that the power was merged in the fee, it is now settled that the wife has the power to appoint the fee. 2 Spence Eq. Jn. of the court of chancery. The question arose in this court in the case of Shearman’s Adm’r v. Hicks & als., and was decided in the same way, 14 Gratt. 99.” See also, Ocheltree v. McClung, 7 W. Va. 245.
      Trustees — How Discretionary Power Conferred on.— In Whelan v. Reilly, 3 W. Va. 611, it is said : “It is well settled that a discretionary power may be conferred on trustees either by the express terms of the trust or by implication from the nature of the duty imposed on them whenever the object of the trust is certain. Hill on Trustees, 485; Frazier v. Frazier, 2 Leigh 642; Cochran v. Paris, etc., 11 Gratt. 348; Steele v. Levisay, Ib. 454; Robinsons v. Allen and others, Ib. 785; Harrisons v. Harrison’s Adm’x, 2 Gratt. 1; Shearman v. Hicks, 14 Gratt. 96; Huntington v. Winchell, 8 Conn. Rep. 45; Hill’s Ex’or v. Bowman, 7 Leigh 650; Cowles, etc., v. Brown, etc., 4 Call 477; McGaughey’s Adm’r v. Henry, etc., 15 B. Monroe 383; Leavitt v. Beirns et al., 21 Conn. Rep. 1.”
      See the sequel to this case in Byrne v. Edmonds, 23 Gratt. 202 et seq., where the case again appears before the court of appeals because, on account of some accidental mistake in printing the record, the true will was not presented to the court on the first appeal.
    
   SAMUELS, J.

Two questions are presented by the record of this case, both of which must be decided in favor of the appellants before the sentence of the Circuit court can be reversed.

First. Did the deed of March 18th, 1835, executed by John Timberlake to Shearman and wife, confer on the wife a valid powqr of appointment?

Second. If it did, was the power well executed by her olograph will?

It must be conceded that Timberlake had the right (if he had chosen to exercise it) to convey the estate by deed of bargain and sale to Shearman for life, remainder to Mrs. Shearman in fee, determinable upon an event occurring at her death or before, and if so determined, then over to another in fee. See 1 Rev. Code, p. 369, 370. This right results from the power of the bar-gainor either to declare the use at once and finally; or to reserve to himself a power to revoke the use and to declare other and different uses; so he may confer on another the power possessed by him. In either case, the law against perpetuities must be respected. *The appointee would take under the grantor of the power. 2 Sugd. Pow. 25; 2 Lomax’s Dig. 237, § 23, new edition.

The counsel for the appellees conceded that it was manifest that Timberlake intended to confer on Mrs. Shearman a power to appoint her fee simple estate to a person or persons other than herself or her heirs at law; yet he insisted that the power was merged or extinguished in her estate in fee simple. This position is not well taken; for it seems to be settled that a title in fee simple (acquired as in this case) may coexist with a power of appointment in the same person; and when the power is executed the fee simple may be divested thereby. 2 Lomax’s Dig. 207 of new, 149 of old edition; 1 Sugd. Pow. 105; Clere’s Case, 6 Coke’s Reports, 17 b, and note b.

I am of opinion that a valid power was conferred on Mrs. Shearman, notwithstanding her estate in fee.

This brings up the second question. Was the power well executed by the olograph will of Mrs. Shearman? The grantor of a power may prescribe any form or mode for its execution, and his directions must be complied with, or the execution will be invalid. It is said that the power in this case to “nominate by last will and testament or power of appointment in presence of two witnesses,” required that two witnesses should be present, whether the appointment be by will or by other writing. This, in my judgment, is not the proper construction of the grant. A last will and testament is an assurance accurately defined and carefully guarded b^ law ; and when then the grantor authorized an appointment by “last will and testament, ” he is to be understood as prescribing such and so many of the requisites as may be essential to the making of the instrument. As the grantor authorized an appointment in another mode about which the law makes no specific provision, it was therefore proper that the *grantor should prescribe such safeguards as he deemed sufficient; and accordingly he required the presence of two witnesses. In my judgment a will in due form of law, wholly written and signed by the grantee, is a strict execution of one of the alternative powers with which Mrs. Shearman was vested.

I am aware of the conflicting opinions of eminent English judges in regard to cases like that in hand. Lord King, Lord Mansfield and Lord Kenyon, holding the appointment valid; Lord Hardwicke holding it invalid. Dormer v. Thurland, 2 P. Wms. 506; Earl of Darlington v. Pultney, Cowp. R. 260; Doe, lessee of Harman & wife, v. Morgan, 7 T. R. 103; Ross v. Ewer, 3 Atk. R. 156. In the absence of any controlling authority, I am of opinion the case must be decided on general principles; that Mrs. Shearman’s will passed the title to the land over which she had a power, and in which she had a fee simple estate, and that the sentence of the Circuit court revoking the probate of the whole will, is erroneous as to the land conveyed by Tim-berlake, and should be reversed, and the probate of the will as to that subject be held valid and binding.

LEE, J.,

concurred in the opinion of Samuels, J., as to the effect of Limberlake’s deed, but was inclined to think an olograph will was not a good execution of the power.

DANIEL, J., approved the decree of the Circuit court.

ALLEN, P., and MONCURE, L, concurred in the opinion of Samuels, J.

Decree reversed.  