
    Gilbert Bishop v. Ferd. F. Remple.
    -A testator, by one clause of hiswill, devised and bequeathed to his wife all hia property, real or personal, “ as may remain after all claims against my estate are satisfied, with full power to have and to hold, to sell or convey the same, during the term of her natural lite.” In another clause he gave and bequeathed to R. one hundred dollars to be paid to her, “ after the death of my wife, out of any moneys or effects of my estate, that may then remain.” Certain real estate of the testator which passed under his will to the wife, was by her sold and conveyed by a deed in usual form, describing the land and conveying it in fee simple, but making no reference to the will: Held, that the wife bad power to sell and convey the land in fee, and that the deed was a sufficient execution of the power.
    Error to the district court of Hocking county.
    Peter Kuder, on the 5th day of May, 1829, made his last will and testatment, as follows :
    “ I, Peter Kuder, of the town of Logan, county of Hocking, and the State of Ohio, being of sound and disposing mind and memory, but being enfeebled by disease, and death rendered probable, do make and publish this my last will and testament, revoking and annulling every other.
    “ Item — I do devise and request that the expenses of my funeral, and all just debts and claims standing against me, should first be paid out of my property and effects.
    “ Item — I do devise and request that the goods and merchandise now on hand, and in the custody of Sumner L. Cushing, be returned to Campbell, Rudisill & Co., of Lancaster, provided that they will take the same on terms satisfactory to my executors; but if not, that they shall be sold or disposed of as shall be deemed most expedient.
    “ Item — I do devise and request that my executors shall proceed to sell, at public or private sale, all, or so much of my real and personal property as shall be necessary to defray all just claims against my estate.
    “ Item — I do give, devise, bequest and bequeath to my beloved wife, Elizabeth, all and singular of my goods, chattels, effects, claims, moneys and property, real or personal, as may remain- after all claims against my estate are satisfied, with full power to have and to hold, to sell or convey the same, during the term of her natural life.
    
    “ Item — I do give and bequeath to Elizabeth Richter, an indentured girl in my family, the sum of one hundred dollars, over and above the stipulation of her indenture, to be paid toiler, the said Elizabeth, after the death of my said wife, out of any moneys or effects of my estate that may then remain.
    
    
      “ Item — do hereby constitute and appoint John A. Smith, Reuben Culver, and Sumner L. Cushing, executors of this my last will and testament, and I do hereby authorize and empower them, the said John A. Smith, Reuben Culver, and Sumner L. Cushing, to do, perform and execute all and singular the stipulations and provisions herein devised or contained.”
    Peter Kuder died seized of certain real estate, for the recovery of which the action was brought.
    The plaintiff claimed as one of the heirs at law of Peter Kuder. The defendant claimed under a deed executed by the widow of Peter Kuder, who after his death intermarried with James P. Gregory. This deed was as follows :
    • “ This deed made this eighteenth day of February, in the year of our Lord one thousand eight hundred and thirty-three, between James P. Gregory and Elizabeth Gregory his wife, of the county of Hocking, and State of Ohio, of the one part. Amos G. Bright, of the county of Fairfield and State aforesaid, of the other part: witnesseth, that the said James P Gregory and Elizabeth his wife, for, and in consideration of the sum of eight hundred dollars, to them in hand paid, or secured to be paid by the said Amos G. Bright, the receipt whereof they do hereby acknowledge, and forever acquit and discharge the said Amos G. Bright, his heirs, executors and administrators, have granted, bargained, sold, aliened, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, convey and confirm unto the said Amos G. Bright, his heirs and assigns forever, all those tracts and parcels of land, lying and being in the county of Hocking, and State of Ohio, known and designated as being two inlots in the town of Logan, in said county of Hocking, as number forty-five (45), and forty-six (46), on the recorded plat of said town. Together with all the improvements and appurtenances thereunto belonging, or in any wise appertaining, and all the estate, right, title, property and interest of them, the said James P. Gregory and Elizabeth his wife, of, in and to the same. To have to hold in fee simple, the lands hereby conveyed, with all the profits and appurtenances thereunto, in any wise belonging, and the reversions and remainders thereof, unto him the said Amos G. Bright, his heirs and assigns forever ; and the said James P. Gregory and Elizabeth his wife, do hereby warranty the aforementioned premises to be free from all incumbrances either in law or equity, and that they will, and their heirs, executors, shall warrant and defend the said premises to the said Amos G. Bright, his heirs and assigns against the lawful claims of all persons whatsoever. In testimony,” etc. And was duly executed, acknowledged and recorded.
    Some time after the execution of the deed, and before the commencement of the action, Elizabeth Gregory departed this life.
    Judgment was rendered in favor of the defendant in the district court, to reverse which, a petition in error was filed in this court.
    jP. Van Trump and James It. QrogTian, for plaintiff.
    
      
      Hunter Daugherty, for defendant.
   G-holsok, J.

The counsel for the plaintiff present the case to us, as one turning upon the proper construction of the will of Peter Kuder, and say : The question is, what interest ■did Mrs. Kuder take under this will? Was it a naked life estate, or was it an absolute fee ? Or, if the question does not resolve itself into one or the other of these simple propositions, was it an estate for the life of Mrs. Kuder, coupled with a power of disposition in fee ? or a life estate in her, coupled with a power of disposition only co-equal with the interest or estate thus devised ? ”

We do not think it necessary to determine which of these different views is correct, or to say whether the estate of Mrs. Kuder was a.life estate or a fee. We are satisfied it was not a naked life estate, and it may not have been an absolute fee. The power of selling and conveying seems to us inconsistent with the idea that it was a naked life estate, and unless the fee was disposed of by a sale and conveyance in the lifetime of Mrs. Kuder, we think it might be fairly claimed, that it would devolve upon the heirs of the testator.

The testator, in one clause of his will, devises all his property, real or personal, which may remain after the payment of his debts, to his wife, with full power to have and to hold, to sell and convey the same, during her natural life. In the next clause he gives a legacy of $100, to be paid after the death of his wife, out of any.moneys or effects of his estate that may then remain. We think that by the first clause the wife is to have power to sell and convey the property, and not a mere life estate in that property. The first object of the bounty of the testator was his wife, and should she require it during her life, his whole estate, after the payment of debts, was placed at her disposition, not merely to have and to hold, but to sell and convey. The nature of the property may have been such, that the only beneficial use would arise from a sale and conveyance. The payment of the legacy is postponed until the death of his wife, and is then conditional. It is to be paid out of any moneys or effects of his ■estate that may then remain. If the wants of the wife, dur ing her life, exhausted the property, the payment of the legacy could not be made. If there remained, at the death of the wife, any money or effects devised under the will, a trust would attach to them for the payment of the legacy. This view, we think, gives effect to each clause of the will, and shows that Mrs. Kuder had power, during her life, to sell and convey the land, not merely for her life, hut in fee.

Such being our construction of the will, a further question is presented. It is claimed that the power to dispose of the property was not properly executed by the deed under which the defendant derives title.

Some of the rules as to the execution of a power are certainly strict. It is admitted to be a question of intention, but then, it is said, that the rules by which the intention is 'to be ascertained are settled and fixed. It is said that “ to execute a power, there must be a direct reference to it, or a •clear reference to the subject, or something upon the face of the will, or, independent of it, some circumstance which shows the testator could not have made that disposition without having intended to comprehend the subject of his power.” Sales v. Margerum, 3 Vesey, 299, 301; Andrews v. Emmot, 2 Bro. C. C. 297. “ In no instance has a power or authority been considered as executed unless by some reference to the power or authority, or to the property which was the subject of it, or unless the provision made by the person entrusted with the power, would have been ineffectual — would have nothing to operate upon, except it were considered as an execution of such power or authority.” Denn & Nowell v. Roake, 6 Bingh. 475, 478; Roe & Caldecott v. Johnson, 7 M. & G. 1047, 1059. “If the act can be good in no other way than by virtue of the power, and some part of the will would otherwise be inoperative, and no other intention than that of executing the power can be properly imputed to the testator, the act, or will, shall be deemed an execution of the power, though there be no reference to the power.” Bradish v. Gibbs, 3 Johns. Ch. 523, 551 Andrews v. Brumfield, 32 Miss. 107-116.

Applying the strictest of these rules, the power in this case may be regarded as well executed. We have no reference to the power, but we have a “ reference to the property which was the subject of it; ” and the terms of the deed can not be satisfied, as a consequence of the fee in that property, unless it be considered an execution of the power. This is shown by the circumstances — the property is referred to and described; it was the real estate of the testator, which by his will passed into the possession and under the control and power of his wife, who during her life makes this deed, describing that property, and undertaking to convey it in fee-simple. This act of hers must be operative under the power, or fail altogether; and she must therefore have intended to execute the power.

In any view of the rules on the subject, we think the deed may be properly regarded a sufficient execution of the power. We think no instance can be found where the property which is the subject of the power is distinctly described and referred-to, and the disposition made of the property would fail, unless considered as made under the power, and there is no other objection to the mode of the disposition except the want of express reference to the power, that the execution of the power has been held to be invalid. The defendant thus having the title to the property, the plaintiff is not entitled to recover, and the judgment must be affirmed.

Judgment affirmed.

Brinkerhoff, C.J., and Scott, Sutliff and Peck, JJ., concurred.  