
    Ruby Anna Vines, Appellant, v. M. Josephine Clarke, Respondent, Impleaded with Jonathan Flanders and Emma Flanders, His Wife.
    Third Department,
    January 8, 1906.
    Will — power coupled with interest — conveyance by warranty deed for . full value shows intention to exercise power — husband not necessary party to wife’s deed/
    When the devisee of a life interest, who was also named executrix with full power to Sell real estate, sells lands for full- value and gives a warranty deed, the transaction itself shows an intention to ..exercise the power to convey the fee and not the life estate only.
    Hence, the rights of a remainderman as against the grantee are cut oil.
    When the donee of á power to sell lias also an interest in the sub ject of the power and makes a conveyance without reference to the, powep, it is a question of intention- as to whether the conveyance was in. .pursuance Of the power or only a grant of the interest." «
    It is'not necessary for the husband of a donee of such power coupled with an interest to "join in the wife’s conveyance.
    Appeal by the plaintiff, Ruby Anna Vines, from--a. judgment of the Supreme Court in favor' of the defendant Clarke, entered in the office of the clerk óf the county- of Saratoga on -the 28th day of March, 1905, upon the decision of the court rendered after' a trial before the’court without a jury at the Saratoga Trial Term. i
    The action is for ejectment. The plaintiff' claims to be entitled to recover the possession of an undivided .one-fifth part of the premises described in the complaint' as a.remainderman under the will of Smith Mitchell, who died seized and possessed of such premises. By liis will, which was proven' in the Saratoga County Surrogate’s Court September 26, 18J0, lie devised and bequeathed the use and income of all his real estate to. his widow, Belinda Mitchell, for and during the term, of her natural life; and upon her- decease ■he devised .ati undivided one-fifth part.of said real estate to-the child or children of his, son, Commodore P. Mitchell, subject to a life estate'therein in favor of the said Commodore P. Mitchell The latter is now .deceased' and' the plaintiff is his only living child and there" is no issue of any predeceased children. By his will said Smith. Mitchell appointed his wife, Belinda Mitchell, as the sole executrix thereof witji full power and authority to sell and dispose of all his real estate and to invest the proceeds in such manner as shall be most for the interest of the estate. Belinda qualified as executrix and served as such up to the time of her death in 1904. Before March Y, 18Y3, she married one Chancellor Pettigrew. On that day she and her husband joined in a deed conveying the premises in question to one Charles B. Ford for a consideration of $1,100, which was the reasonable market value of the premises at the time of said conveyance. In the deed she described herself as the widow of Smith Mitchell, deceased, and the deed contained the usual covenants of warranty. The premises were thereafter conveyed by several mesne conveyances and were finally conveyed t» the defendant Clarke who. received and duly recorded her deed on Becember 3, 1898, and who paid the reasonable market value of said premises at the time of her purchase. The defendant Clarke has been in possession of said premises since s'aid last-named date. The court on the trial dismissed the complaint and the plaintiff appeals from the judgment of dismissal.
    
      Corliss Sheldon, for the appellant.
    
      Edgar T. Brackett and Hiram C. Todd, for the respondent.
   Chester, J.:

While. Belinda Pettigrew, as the executrix of her husband’s will, was thereby expressly given the absolute power of sale of his real estate, yet in the deéd which she gave there is no mention of such power. The question presented for determination, therefore, is whether by such deed she conveyed the entire fee or simply her life estate. Section 124 of title 2 of chapter 1 of part 2 of the Revised Statutes (1 R. S. 737), which was in force when the deed was given, provided that “every instrument executed by the grantee of a power, conveying an estate * * *, which such grantee would have no right to convey * * *, unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein.”

In Mutual Life Ins. Co. v. Shipman (119 N. Y. 324) it was held that' the enactment of this provision of the Revised Statutes, which is couched in- almost the identical language' of section 155 of the present Real Property Law (Laws of 1896, chap. 547), and from which the. provision of the Real Property Law was taken, did not change the rule of the common law as to the effect of a conveyance by the donee of a po\yer who is also the possessor of other interests in the property to which the power relates when in the" conveyance no mention is made of the power. -

. The common-law rule is well expressed by a quotation' in the " case cited from Sugden on Powers (3d Am. ed. p. 477). where it •is said that.“the doctrine settled by the decisions seems to be this : When.the donee of. a power to sell land possesses also an interest in the subject of the power, a, conveyance by him without actual reference to the power will not be deemed an execution of it, except there be evidence of an intention to execute it or at least in the face ' r N of evidence disproving such intent.”

Kent, in "his Commentaries,, says: “ The "power may be executed without reciting it, or even referring to it, provided the act shows that the donee had in view the subject.of the power. * * * The general rule of construction, both as to deeds and wills, is, that if there be an interest and a power existing-together in the same'person, over the same subject, and an act be done without a particular reference to the power, it will be applied- to the interest, and not to the power. * * * .In construing the instrument, in cases where the party has a power, and also. an interest,"the intention is the great, object of: inquiry.”. ' (4 Kent Comm. [14th ed.] *334-336.)

Chief Judge Denio, writing the opinion of the Court of Appeals ' in White v. Hicks (33 N. Y. 383, 393), quotes with-approval the language of Judge Story in Blagge v. Miles (1 Story, 426), who, after examining the -English. cases on the subject, there says : “ All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it shall appear by words, acts or deeds demonstrating the intention.” ' •

The general rule stated by Kent and by Sugden is that contended for as applicable to this case by counsel for the appellant, but these eminent authorities each indicate that the general rule is nevertheless subject ‘to the exception that effect .must be given to the intention of the parties if that can be ascertained.

Here the intention is clear'. The grantor received and the grantee paid full value for the premises, and the grantor covenanted that she would forever warrant and defend the grantee in the quiet and peaceable possession of the premises.

It is not to be presumed that the grantor would have taken full value for the premises, or that the grantee 'would have paid that amount, for the conveyance of a partial interest only. The deed in form being of the entire fee with a warranty of the title thereto shows clearly that the grantor intended to convey not only what she had as a life tenant but what she was entitled to dispose of by virtue of the power of sale. She also described herself as the widow of Smith Mitchell,* which indicates that in some way fehe thought she could only give a good title to the. entire fee as his representative. • The deed was evidently prepared by some one unacquainted with the law, but nevertheless the intent to convey the entire estate is apparent, and if heed is given to such intent the complaint was properly dismissed.

The. appellant relies upon the cases "of Weinstein v. Weber (58 App. Div. 112) and Mutual Life Ins. Co. v. Shipman (supra), but these cases were brought squarely under the rule rather than under the exception, which it seems to me governs here.

The fact that the husband- of Delinda joined in the conveyance is of no significance, for it was no more essential for him to join in a deed to convey his wife’s life estate thap to join in a deed of conveyance under the power of sale. -

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.  