This is a controversy between the parties to this action, arising out of the following facts: Plaintiffs, who are the heirs of Thomas Chewning, claim that they are the owners of the trаct of land, which is the subject of the controversy; and defendants, who are the heirs of Martha Chewning, dispute this claim and assert ownership in themselves. The land was owned by Thоmas Chewning, who by his will devised it to his wife, Martha Chewning, in these words: “I give and bequeath (after all my just debts shall have been paid) all of my real *580 and personal property, together with all debts owing my estate, to my wife, Martha Ohewning, during her natural life, and then to dispose of as she sees proper.” If under this clause of the will Martha Ohewning acquired a life estate only, with power of disposal, the plaintiffs are entitled to the land, as she failed to exercise the power; but if the grant of the power enlarged the estate for life, which is expressly given, into an estate in fee, then the defendants are the owners of the land. The court below was of opinion with the plaintiffs and rendered judgment accordingly, from which the defendants appealed.
There is a marked distinction between property and power. The estate devised to Mrs. Ohewning is рroperty, the power of disposal a mere authority which she could exercise or not, in her discretion. She had a general power annexed to the lifе estate, which she derived from the testator under the will. If she had exercised the power by selling the land, the title of the purchasers would have been derived, not from her, who merely executed the power, but from the testator or the donor of the power. “The appointer is merely an instrument; the appointee is in by the originаl deed. The appointee takes in the same manner as if his name had been inserted in the power, or as if the power and instrument executing the power had bеen expressed in that giving the power. He does not take from the donee, as his assignee.” 2 Wash. R. P., 320; 1 Sugden on Powers (Ed. 1856), 242; 2 Sug. Pow., 22;
Doolittle v. Lewis,
7 Johns Ch., 45. “In the execution of a power there is no contract between the donee of the power and the appointee.- The donee is the mere instrument by which the estate is passed from the donor to the appointee, and when the appointment is made, the appointee at once takes the estate from the donor as if it had been convеyed directly to him.”
Norfleet v. Hawkins,
It has been held that a devise to A, with power to dispose at pleasure, is considered as conveying
properly,
not as conferring
poioer;
for the words of power will not be permitted to take away what, without them, is expressly given. 2 Prest. on Est., 81, 82; 13 Ves., 453. But where there is an express and inconsistent estate for life given, the construction of the instrument is altogether different; for the express estate for life negatives the intention to give the absolute property, and converts these words into words of mere power, which, standing alone, would have been construed to convey an interest. This appears to be very clearly established by the cases, which further lay it down that where аn
interest,
and not a mere
power,
is conferred, the absolute -property is vested, without any act on the part of the legatee; but where a power only is given, the power must be executеd, or it will fail. We may, therefore, take the rule to be settled that where lands are devised to one generally, and to be at his disposal, this is a fee in the devisee; but where they are devised to one expressly for life, and afterwards to be at his disposal, only an estate for life passes to the devisee, with a bare powеr to dispose of the fee. Anonymous, 3 Leon., 71;
Leefe v. Saltingstone,
1 Mod., 189;
Tomlinson v. Dighton,
Salk. 239
(s. c.,
1 Peere Wins., 149);
Burleigh v. Clough,
52 N. H.,
*582
267;
s. c.,
The text-writers thus state the general rule: “A devise of a life, interest in express terms, coupled with a power in the life tenant to dispose of the fee simple in the property by his will, either absolutely and at his full discretion among a class of objects to be selected by him or among a class of objects pointed out by the testator, gives the first taker a life estate only, but with a power to appoint the fee simple by his will.” 2 Under-hill on Wills, sec. 688. “A general power of disposition includes a power to dispose of the property by deed or will, and practically clothes the donee with all functions of ownership. In view of this fact, it has oсcasionally been provided by statute, and a few courts have reached the conclusion, without the help of the Legislature, that the devisee of a life estate, with a general power of disposition, takes a fee simple, and that a limitation over is void. But, by the overwhelming weight of authority, no fee results from the union of thе life estate and the power, but both remain distinct, and the limitation over is good unless defeated by the exercise of the power by the life tenant.” Gardner on Wills, p. 476. This doctrine has been adopted and applied by this Court in several cases. It is stated in
Patrick v. Morehead,
The casé of Herring v. Williams, decided at the last term, ante, 1, did nоt involve the question now presented. The question there was, whether there was a power of appointment or a power of disposal, while here the question is, the power being conceded, whether it enlarged the life estate into a fee. In the Herring case the donee had sold and conveyed the land by deed¿ or attempted to do so, while in this case she failed altogether to exercise the power. The reversion in the land belongs to the heirs of Thomas Chewning, and not to the heirs of the donee of the power, and the judgment of the court is, therefore, correct.
Affirmed.