
    Shank v. Dewitt.
    
      Will — Power of appointment — Abuse of power.
    
    1. Where a testator invests his widow with a life estate in his property, with power to dispose of the remainder to his heirs, an attempted appointment of it in such manner as to secure to herself a substantial pecuniary benefit from its disposition, not authorized by the testator, is an abuse of such power of appointment and is void..
    2 An innocent motive, or an honest misconstruction of the power conferred will not save the exercise of the power, if the true purpose of it is violated.
    3. A testator, possessed of real estate worth $G,600, and personal property sufficient to pay his debts, devised and bequeathed to his widow his real and personal estate for her life, directing her to sell so much of the latter as would pay his debts, and made the following direction: “And I do further authorize my wife, after my death, to dispose of all the above said property to my heirs as she thinks best.” The widow appointed to several of the heirs only five dollars each, to be paid by her grantees of parcels of the real estate. She deeded in fee-simple to one of the heirs, for the consideration of $1,000 paid to her, twenty-three acres of the land. She deeded to another of the heirs, in fee-simple, forty-three acres of the land (reserving (he use of it during her life), for the consideration of $100, the taxes, expenses of her last sickness, an attendant to be provided her during life, funeral expenses, and a tombstone at her grave. Heldi this was an attempt to make appointments of the fee of the land for her own benefit, not intended by the testator, was an abuse of the power conferred, and void.
    Error to the District Court of Holmes county.
    Ou the 1st clay of December, 1873, Barnard Dewitt, a resideut of Holmes county, died leaving a will by which he provided for the disposition of ¡all his property in the following language;
    “ Item 1st. I give and devise to my beloved wife the farm we now reside on, situate in'Knox township, Holmes county, Ohio, containing about one hundred and twenty acres, during her natural life-time, and all the stock, house-' hold goods, and chattels which may be thereon at the time of my decease, during her natural life as aforesaid, she, however, selling so much thereof as may be sufficient to pay my just debts. And do further authorize my wife, after my death, to dispose of all the above said property to my heirs as she thinks best.”
    '' He left surviving him his widow, Jane Dewitt, three sons, Charles, Henry, and Jackson, and one daughter, Margaret Gray; also grandchildren as follows; The five plaintiffs, Alonzo L. Dewitt, son of Milan Dewitt, deceased; Barnard, Boston, and Oliver Shank, sons of a deceased daughter; Elizabeth Shank, and George Zellers, son of the deceased daughter, Eliza Zellers; also Jennie, Dallas, Ida, and Galvin Zellers, children of Eliza Zellers, deceased.
    On the 15th of December, 1873, the will was admitted to probate and the widow made her election to take under the will. She never qualified as executrix or testamentary trustee, nor were any letters of administration ever granted i upon the estate.
    Besides the farm, the testator left personal property considerably more than sufficient to pay the debts. The farm was worth $6,600. The widow paid the debts out of the personal assets, and gave what remained of the personalty to Charles and Mrs. Gray.
    On the 16th of Eebruary, 1877, for the consideration of §1,000 to her paid, she executed to Henry a general warranty deed for some twenty-three acres of land left by the testator, and for the consideration of §1,000, and on the 25th day of July, 1878, Henry executed a deed for the samé twenty-three acres to the defendant, Jacob K. Lang, who has been in possession of the land ever since.
    On the 2d day of March, 1878, the widow executed deeds for the remainder of the land to Charles, Jackson and Mrs. Gray ; to Charles for forty-three acres, to Jackson for twenty, and Mrs. Gray for thirty acres. In her deed to Charles she reserved the use of the land during her life. Charles' was to pay her one hundred dollars, the taxes, the expense of her last sickness, and funeral expenses. He wag also to provide her with an attendant during her life, and to erect a tombstone on her grave.
    In her deed to Jackson, she reserved the use of the land during her life. The consideration stated was thirty dollars, to be paid by Jackson to the heirs of Milan Dewitt and Mrs. Zellers — or five dollars each — six months after the death of the widow.
    In her deed to Mrs. Gray, she reserved the use of the land during her life, with the privilege to Mrs. Gray to occupy and improve the land by paying the taxes and one-third of the products during the life of the widow. Mrs. Gray was also to pay the heirs of Mrs. Shank fifteen dollars —or five dollars each — six months after the death of the widow.
    On the 20th day of August, 1878, Jackson Dewitt executed a deed for the twenty acres described in the widow’s deed to Charles, and on the 25th day of March, 1878, Mrs. Gray also executed a deed for the thirty acres to Charles.
    On the 15th day of August, 1878, the widow, Charles, and his wife, executed a deed for the thirty acres to the defendant, Weaver, and on the 5th day of Eebruaiy, 1881, Charles executed another deed to Weaver for twenty-three acres out of the lauds described in his deeds from the widow and Jackson.
    Weaver has been in possession of the lands described in his deeds since the dates of their execution, and Charles has been in possession of the lands described in the several deeds to him, except the thirty and twenty-three acres described in his deeds to Weaver.
    The' widow died January ], 1879. The plaintiffs and the children of Mrs. Zellers have received nothing from the estate. On the 20th of January, 1882, the plaintiffs filed their amended petition, making all persons interested parties to the suit.
    The plaintiffs set forth all the above facts and pray that the several deeds described be set aside except as to the undivided interest of Henry in the twenty acres deeded to ‘Lang and the undivided interests of Charles and Mrs. Gray in the lands described in the deeds to Weaver; also for equitable partition; and further that Charles and Mrs. Gray be compelled to account and pay over to the plaintiffs their respective shares in the personal property and that Charles and the defendants, Weaver and Lang, be required to account for the rents and profits of the farm received since the death of the widow, and to pay over to the plaintiffs their shares of the same, and for general equitable relief.
    The children of Mrs. Zellers by their guardian filed their answer and cross-petition setting up their respective interests in the estate and join with the plaintiffs in their prayer for relief. .
    . To the petition as amended a general demurrer was filed by Charles and the defendants, Lang and Weaver. The demurrer was sustained aud the plaintiffs not desiring to amend or plead further, the petition was dismissed. An appeal was taken and the ease was again heard upon the demurrer of Charles and the defendants, Lang and Weaver. The demurrer was sustained and the petition again dismissed. For error in sustaining the demurrer and dismissing the petition, the plaintiffs now seek to reverse the judgment of the district court.
    
      
      W. J. Gilmore and Critchfield § Graham, for plaintiffs in error. ■
    
      Heed Hoagland and B. 8. Church, for defendants in error.
   Owen, C. J.

The contention of the plaintiffs is that the appointments made by the widow are void. Several grounds are assigned for this claim. Among them, that (1) the power conferred by the will was one of distribution or disposition only, and not of selection and distribution; (2) that if there was a distribution among all the objects of the power, -still the appointments to the plaintiffs were merely illusory and hence void; and (3) that the principal appointments made by the widow were for her own interest and benefit, and that while she may have acted upon an honest misconstruction of the power conferred upon her, its attempted execution was in legal effect an abuse, and in fraud, of the power actually conferred, and consequently void. An innocent motive will not save the exercise of a power if it violate the true purpose of the trust. William’s Appeal, 73 Pa. St. 249. We deem it unprofitable to consider more than the one ground upon which we rest our determination of the case. After giving to his wife a life estate in all his property and directing a sale of sufficient to pay his debts, the testator uses the following words: “And I do further authorize my wife after my death to dispose of all the above said property to my heirs as she thinks best.” It must be conceded that, subject to her own interest as a tenant for life, the widow was invested, at best, with but a power of appointment over the property which was the subject of disposition.

If in the attempted execution of the power conferred upon her she sought and obtained a substantial pecuniary benefit for herself, beyond, and not contemplated by, the manifest intention of the testator, the appointments fail as inoperative and void for want of power to make them.

“ A person, having a power of appointment for the benefit of others, shall not, by any contrivance, use it for his own benefit.” 1 Story’s Eq. Jur., § 255.

In 2 Pomeroy’s Eq. Jur., § 920, it is said that equity will regard an appointment as fraudulent “ where the donee is restricted to a certain class of beneficiaries not including himself, and he intentionally makes an appointment for the purpose of his own benefit, and in such a manner as directly or indirectly to secure his own benefit.”

“It is a principle well established that a father, having a power of appointment, can not derive a benefit to himself from the execution of it.” Lord Chancellor Manners, in Palmer v. Wheeler, 2 Ball & Beatty, 29.

“A power can not be executed in favor of the donee of the power unless the instrument specially authorizes him to do so. The donee of a power can not execute it 'for any pecuniary gain, directly or indirectly, to himself.” 2 Perry on Trusts, § 511; 1 Ibid., § 254.

This principle finds strong support in the following cases: McQueen v. Farquhar, 11 Ves. 479; Aleyn v. Belchier, 1 Eden, 138; Agassiz v. Squire, 1 Jurist (N. S.) 50; Bostick v. Winton, 1 Sneed (Tenn.) 525; Cruse v. McKee, 2 Head (Tenn.) 1; Holt v. Hogan, 5 Jones Eq. (N. C.) 82.

In the case at bar the widow attempted to convey to Henry Dewitt in fee-simple, by warranty deed, twenty-three acres of the land left by the testator, for the consideration of $1,000. She also attempted to convey to Charles Dewitt in fee-simple, by warranty deed, forty-three acres of the land for the consideration of $100 to be paid to her, the taxes, expénses of her last sickness, an attendant during her life, funeral expenses, and a tombstone at her grave. She reserved the use of the land during her life.

The suggestion that the money and beuefits received by her represented the stipulated value of her life interest in the property disposed of is conclusively answered by the averments of the petition, which are that they were the considerations, respectively, of the conveyance of the tracts of lands disposed of. Besides, it will be observed that her life estate is expressly reserved in the deed to Charles.

That her own personal, pecuniary benefit was in the contemplation of the parties to the transactions, seems too clear for discussion. We may well suppose that those heirs of the testator who were practically excluded from all benefits of the power conferred would have substantially shared in the disposition of the property but for these appointments made for her own benefit.

It was clearly the intention of the testator that his widow should not share in the estate beyond the life interest which the will bestowed upon her; and in seeking to derive a substantial benefit for herself from the estate which was intended to be appointed to the heirs of the testator, she exceeded and abused the power conferred. Upon the principle already declared but one result can follow the conclusion reached. The appointments attempted to be made by the widow are void. The claim made in behalf of the defendants, Lang and Weaver, that they are innocent, bona fide purchasers without notice, is not sustained by the most liberal construction, in their behalf, of the averments of the petition. The plaintiffs are entitled to the relief demanded.

The district court erred in sustaining the demurrer to the petition. The judgment of that court is reversed. The demurrer is overruled. The cause will be remanded to the eireuit court for further proceedings.  