
    MARY TROY, Executrix of ROBERT E. TROY and ALEXANDER TROY, an infant, who sues by his Guardian, MARY TROY, vs. ALEXANDER TROY.
    A gift by- will to A for life, remainder to B in fee, with «a power to A to sell all or so much of the property as, in her judgment, may be necessary, vests in A an estate for her life, with a power of sale appurtenant to her life estate.
    And the expression by the testator, in a subsequent part of his will, of a doubt, whether the power of sale would not make A the absolute owner of the «hole estate, and a direction that i» cose such should be the construction in law, that 0 shduld have the legal estate in fee íu the property, in trust, &e., do not convey to 0 any estate or interest in the property. ■ „
    The will declares the expense of the education of bis son to be a charge on ' all his property. A lmlds the proceeds of sales, made under the power, in trust to pay debts, for hev.own support, and for the support and ed-ucati n of B. , .
    ’• This cause was removed from tbe Court of Equity Tor Columbus County,- to this Court for trial.
    The bill states that in tbe year 1862, Robert. E.- Troy, tbe husband of tbe feme plaintiff, and tbe father of the other plaintiff died, leaving a last will and testament, which has been proved ; of which the plaintiff Mary is the executrix. • After stating, in substance, tbe contents of the will, and that a sale of spme of tbe property is necessary to pay the debts of the testator, the hill charges that the defendant sets up a claim to the legal estate in the testator’s property, and denies the right of the plaintiff, Mary,. tG sell ; and so' obstructs tbe exercise of the power given to ber. The prayer is for a declaration of the rights of the parties, and' that the defendant he restrained f^om setting up any claim to any of tbe property, or that he may be declared to be a trustee according to the claim he has made. '
    The jnaterial parts of the will (which is made a part of the bill) are as follows
    
      “ It is my will ahd.desire, that all my property and estate'of every kind and description, shall belong to my beloved wife Mary during the term of be.r natural life,'and at her death, to my sou Alexander. Should if- he necessary, however, in the judgment of my wife, that any of the property, real or personal, should be sold, then T authorize and empower my said wife to sell all, or such part thereof, as she may think proper,‘either at public or private salo, for cash or otherwise, and to convey the purchaser an‘absolute , title in foe simple. But if my said wife should marry, this power of disposing of my property .shall cease and determine ”
    “ Item. As, I have, some doubts whether the above disposition of my properly, would not be construed in law to vest in my wife the entire oshste and title, notwithstanding it is (wpreuely limited to her for life ; I therefore desire, in’case the ini ervention of a trustee be necessary in law to carry into effect the disposition which I have made of my property, that 'he whole of ihy said property shall ho held by my brother Alexander J. Troy ipr the purpose of carrying into effect my wish and deliró above' expressed : that is to say. in trust for m.y said wife during the term of her natural life, and at her death, in trust for my son Alexander, or in trust for such person or persons, as she may sell any of the property to, -while she remains a widow, and their heirs forever. But my said brother, Alexander J, Troy is to be appointed trustee only in case . that it should be necessary in law for carrying into effect said provisions.”
    
      
      “ It is my will and desire that as soon as practicable'after the probate of this my last will an$. testament, my executor hereinafter named, shall procure a bill to be filed in the proper Court of Equity, for the purpose of having it; declared whether or not it be necessary for the intervention of said trustee : which bill shall be removed into the Su- , pjreme Court tor final hearing.7’
    “Item. In case my wife die or marry before my sun arrives at the age of twenty'-one years, or shall have completed his education, then I desire and request that my brother, Alexander J. Troy, shall see that my son, Alexander, shall be properly educated, the expense of which education, I will and diréct, shall be a charge upon the whole of my property} whether my wife be living or not.”
    The answer admits the facts alleged in the bill. The eaijise was set for hearing on the bill and answer.
   Pbarson, 0. J.

The will gives an estate to Mrs. Troy for her life, with a remainder in fee to the infant son, subject to a power of .sale by her in respect to all and every part of the property, in the event that, in her judgment, it should be necessary. This is a power appurtenant to her life estate; and the estate which, may be created by its exercise will'take effect'out, of the life estate given to her, as well as out of the remain ler.

A power of this description is construed more favorably than a naked power given to a stranger, or a power ap-pendant, because, as its exercise .will be in derogation of the estate of the person to whom it is given, it is less'apt to be resorted to injudiciously than one*given to a stranger, or one which does not affect the estate of the person to whom it is given,

From the whole will it is clear the intention of the testator was t® confide in the judgment of "his wife, in respect to the necessity of selling property, either to pay Ms debts or for the support of herself, or for the support and education of their infant son ; and, for these purposes, (as long as she remains unmarried) he gives her as full power to sell as he would have himself, if living. There is no reason why this intention should not be allowed to take effect. The apprehension of the testator that, pos- • sibly, the power of sale conferred on his wife might be construed so as to vest in her the absolute title in fee simple was groundless ; for as an - estate is expressly. limited to her during the term of her natural life, and the remainder in -fee is also disposed of, there is no room foy construction. It follows that the provisional appointment of a trustee has no legal effect, and the defendant, Alex. J. Troy, has no estate pr interest in the property ; and these provisions'have no other effect than a -tendency to show the fulness of the power conferred; and that the object was to give his wife as ample power to sell, if, in her judgment, it was necessary for the purposes above stated, as-ifshe was the absolute owner.

The exercise of the power will vest in the purchaser an estate in fee simple, and' he will not be bound to see to the application of the purchase money. That will constitute a fund to be held by Mrs. Troy, in. trust for the payment of the debts of her husband ; and in trust for the support of herself and the support and education of the infant child. And in such payt as may not be required for these purposes, ‘she will take a life estate with remainder in fee to the child. Like all other trustees, she will be subject to the control- of a Court of Equity, in respect to t'ke proper application and management of the trust fund.

There will be a decree declaring the rights of the parties. The costs will be paid by the plaintiff, Mary Troy, out of the assets of the estate. . . • ‘ “  