
    Stevens et ux. versus Winship et ux.
    
    A testator devises a messuage to his wife for her life, she keeping the samern re pair, and, after her death, to his brothers and sisters; and gives her, in case she shall stand in need, full power to sell all his estate, real as well as personal, for her comfortable support. Held, that the wife takes only a life estate, with a power to sell depending on a contingency.
    It is incumbent on those claiming under the wife to show that the power was well executed, and that the contingency has happened; and whether the contingency has happened is a question for the jury.
    Evidence that the wife, who was also executrix, paid the debts of the testator has no tendency to prove that she was in need. Whether an account settled in the probate court, is the only admissible evidence to prove such payment, quaere.
    
    A remainder-man is not obliged to enter for a forfeiture by tenant for life, and anew right of entry accrues to him at the death of the tenant.
    A deed of bargain and sale, acknowledged and recorded, made by the tenant for life to L.,and a deed back from L., with special warranty against all claiming under him, and then a mortgage by the tenant for life, she remaining all the time in possession, does not work a discontinuance.
    After nut disseisin pleaded in a writ of entry by a tenant in common, proof of actual ouster is unnecessary.
    This was a writ of entry, in which the demandants counted upon their own seisin, m right of the. wife, of seven sixty-fourth parts of a messuage, and a disseisin by the tenants.
    ' On the trial, which was upon the general issue, before Jackson J., it appeared, that in January 1769, Samuel Simpson was seised in fee of seven eighth parts of the whole messuage, and his wife Alice Simpson, of the other eighth part. On the 17th of January, Samuel Simpson made his last will. After directing that his debts should be paid out of his estate, he devises to his wife the use of all bis personal estate for her life, and also the use and improvement of the messuage and appurtenances for her life, she keeping the same in repair ; and he gives the messuage after her death, and his personal estate that shall remain on her death, to his two brothers, John and Ebenezer, and his two sisters, equally. He then bequeaths £13 to a niece, to be paid after the death of his wife, and then gives to his wife, “ in case she shall stand in need, full power to sell his whole estate, real as well as personal, for her comfortable support,” and appoints her executrix.
    The will was duly proved in April 1769, and the widow undertook the charge of executrix. She filed in the probate office, on the 21st of July 1769, an inventory of the estate of the testator, in which the real estate, comprising nothing bu' this messuage, was appraised at £450, and the personal estate, consisting wholly of household furniture, plate, apparel, took and sundry utensils, at £ 125. 11s. 3d.
    
    Ebenezer died after the testator, leaving two children of whom the wife of the demandant, Stevens, is one ; and the demandants claim one half of what was so devised to Ebene *;er. Alice entered under the will, and continued in possession of the whole of the premises until her death, which was on the 8th of April, 1821 ; after which the demandants made a formal entry in right of the wife, and they now bring their auioi on that seisin.
    The wife of the tenant, Winship, is the only child of Alice by her second husband, J. Sheppard, to whom she was mar ried in 1772 ; and the tenants claim the whole messuage it right of the wife as heir of Alice.
    The tenants produced in evidence three deeds ; the first, dated on the 1st of February, 1770, and acknowledged and recorded, in which Alice recites her power under the will, and declares that she finds it necessary to sell the messuage to pay the debts of the testator, and for her own comfortable support; and then, in consideration of £450, paid her by one Lucas, undertakes to convey to him the whole of the messuage in fee ; — the second, dated on the 2d of the same February, and acknowledged and recorded, by which Lucas, in consideration of £450, undertakes to convey to Alice the same messuage in fee ; and wherein he warrants against all persons claiming under him, but against none other ; — and the third, dated on the 5th of the same February, and acknowledged, and recorded, by which Alice mortgaged the messuage to one Winslow to secure the payment of £100 in one year. Interest was paid from time to time on this mortgage, until December 1789, when the mortgage was discharged.
    The tenants offered evidence to prove that the executrix had paid debts of the testator to the amount of £ 174. 16s. 2d., and that she had preserved the vouchers therefor ; but it appearing that she had never rendered any account of her administration to the probate court, the demandants objected that this evidence was inadmissible, and it was rejected.
    The tenants contended, that by force of the will Alice had a right to decide whether it was necessary to sell the messuage for her comfortable support, and that her deed to Lucas was conclusive on that point, and it was sufficient to bar and exclude the remainder-men. The jury were instructed, that the deed was not conclusive, and that she had no right to convey the messuage to Lucas, unless it was necessary for her comfortable support; and that, unless the jury were satisfied that she sold for that purpose, or that such necessity existed, they must find a verdict for the demandants.
    The tenants also contended, that if Alice was not authorized to make the conveyance to Lucas, it would operate as a forfeiture of her estate for life, and would give an immediate right of entry to the remainder-men ; and that this right was now lost by lapse of time. This objection was overruled.
    A verdict was taken for the demandants, subject to the opinon of the whole Court.
    
      Hubbard and Jlustin, for the tenants.
    The first clause in the will respecting the messuage gives the widow an estate lot life only, but the clause which comes after is to be taken in connection with the first, or, if not, is to be the most effective. By this, the widow has an authority coupled with an interest, of such a nature as to give her a qualified fee simple. The testator had perfect confidence in her, and she was to be the judge of the necessity of selling for her comfortable support, since no tribunal was appointed to which she should resort for the determination of that question.
    A devise is to be construed most beneficially for the devisee. Parsons v. Winslow, 6 Mass. Rep. 174. The testator had no children, and it was his intention that his widow should live in the same style that she did before his death. If the widow had a power to sell when she should think it necessary, it was the same as a power to sell at her pleasure ; she had, therefore, an estate in fee. Brant v. Gelston, 2 Johns. Cas. 384; Whiskon and Cleyton’s case, 1 Leon. 156; Jennor and Hardie’s case, ibid. 283; Goodtitle v. Otway, 2 Wils. 6; Bagshaw v. Spencer, 2 Atk. 578; Villiers v. Villiers, ibid. 72. The demandants, then, whether the deeds were good or not, have no title.
    But if the widow did not take an estate in fee, but only had a power to sell upon a contingency, then the question is, whether she has duly executed the power. Where a party has an interest coupled with an authority, the burden is on the other party to prove that the power was not duly executed. But, admitting it to be otherwise, the inventory shows that the personal estate, even supposing that the testator had left no debts to be paid, was not sufficient to maintain the widow comfortably in the occupation of a real estate which was so much more valuable. The deed to Lucas recites that she was in need, and the mortgage shows that there was a necessity to raise money. This evidence, though perhaps not conclusive so that it might not have been rebutted by evidence on the part of the demandants, yet, in the absence of all counteracting evidence, was conclusive to prove that the contingency had happened.
    The tenants, however, offered to show what was the situationot the widow, but the evidence was rejected Although it may oe true, that an account settled in the probate office would have been the best evidence of the payment of debts of the testator, yet as no such account was settled, the receipts, which would have been vouchers in the probate office, were good evidence. The executrix was not bound to settle an account. Where the property is given to a person subject to the testator’s debts, the legatee gives a bond only for the payment of the debts.
    In regard to the form of executing the power, the three deeds are to be taken as one transaction. It Was necessary to raise money. The devisee could not mortgage the estate, for at her death the mortgage would have become ineffectual; she was therefore obliged to sell, in conformity to her authority. Having once executed the power, she takes back the estate by purchase of Lucas, and not under the will.
    A deed recorded passes the estate as much as a feoffment with livery ; and if the deed to Lucas was improperly made, as it was the grant of a fee by a tenant for life, it was a forfeiture of her estate. Wright’s Ten. 203; Lit. § 611. If there was a forfeiture, the demandants might have entered immediately. But they made no entry nor continual claim in the lifetime of Alice, and their right of entry is tolled by her dying seised. Lit. § 415. Whatever may be their right, they are mistaken in the form of their action. They have not a second right of entry upon the determination of the particular estate. The case of Wells v. Prince, 9 Mass. Rep. 508, does not reach the present. In that case, there was no forfeiture. The demandants are barred by the statute of limitations, which began to run against them at the time of the forfeiture. Dow v. Warren, 6 Mass. Rep. 328.
    If the demandants have entered, they never have been disseised, but are tenants in common with the tenants, and cannot maintain this action against their fellows without an actual ouster. [Vide Shumway v. Holbrook, ante, 116.]
    
      Orne, for the demandants.
    Alice Simpson took an estate for life only, with a power to sell for her comfortable support in case she should stand in need. If the devise was of a fee simple, it must be because of the intention of the testator. The tenants claim as heirs of Mice ; which is in direct opposition to the intention of the testator, who says that the estate shall go to his heirs. The will provides that the widow shall keep the estate in repair ; it gives her expressly an estate for life ; and if she is in need, then she is to sell for a limited purpose only. She has no right to sell for the payment of debts. In all the cases in which a power to sell has been construed to give a fee, the power has been general and not depending on any contingency. Daniel v. Uply, Latch, 9, 39, 134; S. C. W. Jon. 137; 4 Leon. 41, pl. 110; Liefe v. Saltingstone, 1 Mod. 189; S. C. 2 Lev. 104; Tomlinson v. Dighton, 1 P. Wms. 149; Reid v. Shergold, 10 Ves. jr. 370, Spring v. Biles, 1 D. & E. 435, note; Goodtitle v. Petto, 3 Str. 935.
    If the widow had a conditional fee simple, that does not make an end of the cause, for the power must be executed to •make it absolute. The power was not duly executed, since the widow never stood in need. The evidence offered was rightly rejected, because it was her duty to furnish the best which the case would admit of. But this evidence was im material, for it appears upon the face of the papers that the contingency never happened. The will was made three months before the 'testator’s decease, and the sale took place nine months after. The testator must have known the situation of his affairs, and he considered his property to be adequate to the support of his widow, and to keeping the messuage in repair.
    In point of fact the widow did not sell. The conveyance was from Alice of her estate under the will, to Alice in her own right. Lucas was merely the channel of conveyance, and the object was to cut off the limitation. If she was able to purchase the estate for her own heirs, she was able to have kept it for the remainder-men. She took back the same estate which she had under the will. A person holding in trust cannot be a purchaser. Ex parte Hughes, 6 Ves. jr. 617; Ex parte Lacey, ibid. 625 and note; Lister v. Lister, ibid. 631; Walley v. Walley, 1 Vern. 484. Admitting that the three deeds were one transaction, the widow held the same estate subject to the mortgage only. The deeds' would be good for this purpose alone, and as the mortgage is extinguished, the tenants have no title by virtue of the deeds. If she had been in need, she might have mortgaged it directly It was incumbent on her to show the necessity for selling. The contingency, in all cases of a power, must be strictly proved, and the jury are to judge whether it has happened or not. As to the execution of powers, see Taylor v. Horde, 1 Burr. 120, 125; Orby v. Mohun, 3 Ch. Rep. 135; Powell on Powers, 130, 296; Jackson v. Veeder, 11 Johns. Rep. 171.
    If the contingency did happen, the object of the power must be pursued, which was to provide a maintenance. The jury have found that the deeds were not made for that purpose. If the land was wanted to pay debts, the widow ought to have applied to the court of probate.
    The demandants are not barred by the statute of limita tians. There was no adverse possession, no disseisin by the widow, except at the election of the demandants. It is not the case of alienation by tenant for life to a stranger. When Alice as trustee conveyed to Alice in her own right, she was merely reinstated in her former possession. But if it was a discontinuance and forfeiture, she could not claim by her own wrongful act, if the demandants elected to consider her as in right fully. Lit. § 395 and commentary. She was tenant in common with the demandants ; and her possession and theirs was the same thing. Lit. § 398.
    But supposing that the alienation was to a stranger, the statute is not a bar until twenty years after the estate in remainder vests ; which is after the death of the tenant for life, and not after the forfeiture merely. Wells v. Prince, ubi sup.; Jackson v. Schoonmaker, 4 Johns. Rep. 390; Hall v. Vandegrift, 3 Binn. 384; Hunt v. Burn, 1 Salk. 339, and 2 Salk. 422; Ballantine on Limitations, 10; Hunt v. Bourne, 1 Lutw. 770; Barnardiston v. Carter, 3 Bro. P. C. 67; Doe d. Cook v. Danvers, 7 East, 321; Carter v. Barnardiston, 1 P. Wms. 520.
    
      Prescott, on the same side,
    being directed by the Court to confine himself to the question of the rejection of the evidence, denied the distinction taken between a person deriving title under a power coupled with an interest, and one claiming under a naked power. But if there is a distinction, it is incumbent on the former, rather than the latter, to prove the power duly executed, because he is under a greater temptation to elude the restrictions on the power. The object in offering the evidence which was rejected seems to have been, to show tho there were debts of the testator for the payment of which it was necessary to sell the real estate. If it had been admitted, it would only tend to show that the sale was made for the payment of the debts, instead of being made for the object of the power. The effect of admitting it would be to take the estate from the heirs of the testator. The executrix was nqt charged by the will with the payment of the debts any further than she was by the law, and she was bound like other executors to settle an account in the probate office ; then all parties interested would have had an opportunity of being present when it was settled. Such an account would have been the regular evidence.
    He cited, in respect to the statute of limitations, Kemp v. Westbrook, 1 Ves. sen. 278.
   The opinion of the Court was delivered by

Wilde J.

In the determination of this cause several points are to be considered. The first relates to the construction of the will. The question as to this point is, whether Alice Simpson took a life estate with a power to sell depending on a contingency, or an estate in fee. Several cases were cited by the counsel for the tenants to show, that on a devise of land to a person for life, with power to dispose thereof at his will and pleasure on the happening of a contingency, the devisee will take a fee on the happening of such contingency, or will -take a fee subject to be defeated by the failure of such contingency. It was so decided in the case of Goodtitle v. Otway, 2 Wils. 6, and in the cases cited from Leonard, Levinz, and Johnson's Cases. We are not disposed at all to question the law as laid down in these cases, but we are all of opinion that the principle on which they depend is not in this case applicable It is plain, I think, that it was not the intention of the devisor to empower his widow to dispose of the premises, unless she should stand in need, and such disposition should become necessary for her comfortable support. Her power to sell depended on this contingency ; if it never happened, then she had only a life estate, by the express word» of the will. This therefore is not a devise with power to the devisee in any event to sell at her will and pleasure, but the power depends cn a particular contingency.

It has been argued that the devisee shall take a fee, because the estate is charged with the payment of debts ; but the distinction is, that where the charge is on the person of the devisee, a fee will pass without words of limitation, because otherwise he might be a sufferer, but where the charge is on the land, or to be payable out of the rents and profits, the devisee takes only an estate for life. In the case of Dickins v. Marshall, Cro. Eliz. 330, it was decided that a devise to children of all the lands and goods after payment of debts passed only an estate for life. The same rule of construction was adopted in the case of Canning v. Canning, Mosel. 240, depending on a similar devise. In these, and in most of the cases in which this rule of construction has been adopted, there were no words of limitation, and the question was, what was the true intention of the devisor ; but in the case at bar the intention of the devisor is manifest, an estate for life being given by express words. We can therefore have no doubt that the devisee took only an estate for life, with authority to sell upon the happening of a contingency.

Whether this contingency has happened or not is a ques tian of fact which was properly left to the jury, and their determination is decisive, unless the evidence rejected is by law admissible, or the direction to the jury was wrong. The tenants offered to prove that the executrix or devisee had paid sundry debts of the testator to the amount of £174. 16s. 2d., and their counsel contend, that as no account has been settled in the probate office, and as an account cannot now be settled by reason of the death of the executrix and the lapse of time, this was the best evidence which the nature of the case would allow. Whether a settlement of an account in the probate office is the only evidence to prove the amount of the estate in question, after payment of debts and the expenses of administration, under the circumstances of the case, is a question of some difficulty; and we have not much considered it, because we are of opinion that the evidence, independently of this objection, had no tendency to prove the point in issue, and was therefore properly rejected. It could not prove that the personal property and the income of the real estate were insufficient for the comfortable support of the devisee, unless the amount of the/personal property and of debts due to the estate had been also shown. For aught we know, she might have received payment of debts sufficient for her support. Besides, if she had property in her own right, this also should be taken into consideration, for it cannot be supposed that it was the intention of the testator to provide for her support beyond the life estate, unless in case of need. He first made such a disposition of his property as he thought just and proper, and which, under existing circumstances, we must suppose he deemed adequate to her comfortable support. The authority to dispose of the real estate was superadded, probably in contemplation of the difficulties and wants to which she might be exposed by the vicissitudes of life. It is incumbent, then, on the tenants to show that the power was well executed, and that the contingency on which it depended actually hap pened.,

There being no competent evidence of this fact, we are of opinion that the power was not well executed, the tenant for life having no authority to dispose of the remainder, but on a contingency which has not yet happened. It is, therefore, unnecessary to consider the other objections to the execution of the power.

As to the objection of forfeiture, it is sufficient to remark, that the demandánts do not claim a right of entry arising from forfeiture. If a forfeiture were incurred, the demandants were not bound to enter ; Doe d. Cook v. Danvers, 7 East, 321; Wells v. Prince, 9 Mass. Rep. 508; and if the right to enter for that cause is now barred by the statute of limitations, this does not affect the right of entry arising afterwards on the death of the tenant for life. If there be two rights of entry, one may be lost without impairing the other. Wells v. Prince; Hunt v. Burn, 2 Salk. 422.

But if the case depended on the question of forfeiture, it would be difficult for thé tenants to show any act amounting to a forfeiture. By the common law a bargain and sale could not work a forfeiture or discontinuance of the estate ; it being a general rule, that no alienation which is not made by livery of seisin, or by that which is equivalent, can work a discontinuance. M’Kee v. Pfout, 3 Dallas, 486; Co. Lit. 330 a, note 284; Case of Alton Woods, 1 Co. 44; 2 Danv. Abr. 57. There can be no discontinuance without transmutation of the possession. It is true that a bargain and sale, covenant to stand seised, or release, with a general warranty annexed, may produce a discontinuance, when the warranty descends upon him who hath right to the lands. Co. Lit. 329 a; Gilb. Ten. 120. In this case it does not appear that there was any such warranty ; nor would it have descended upon the demandants if there was ; nor is it material to inquire as to these points, because it is clear there was no alienation. The deed to Lucas was never intended so to operate. The possession remained undisturbed jn the grantor, and the estate was immediately reconveyed to Alice Simpson with a special warranty, which would operate so as to defeat the first warranty, if there was one in the deed to Lucas. The whole object of the conveyance and reconveyance was to enable Alice Simpson to raise money by' mortgage. Nor did the mortgage work a discontinuance. The mortgagor remained in possession notwithstanding the mortgage; nor could she have pleaded to a writ of entry that she was not tenant of the freehold. It appears, therefore, that there has been no forfeiture, and if there had been, it would not have barred the demandants’ right of entry after the death of the tenant for life.

The objection, that the action cannot be maintained without proof of an actual ouster, cannot prevail after nul disseisin pleaded in a writ of entry. It was so decided in the case of Higbee et al. v. Rice, 5 Mass. Rep. 352, and we have no doubt of the correctness of that decision.

Judgment according to the verdict.  