11 Johns. 169 | N.Y. Sup. Ct. | 1814
delivered the opinion of the court. The question in this case is, whether there was a due execution by Elizabeth Feeder of the power given her by the codicil to the will of Myndert Feeder. By the codicil the testator devised a
There can be no doubt that the instrument by which the power was attempted to be executed, comported with the directions of the power. It was an instrument in writing, under her hand and seal, and signed in the presence of two credible witnesses, and was intended by. her as an execution of the power, being made with express reference to it.
The point upon which the doubt arises, if any exists, is, whether the designation should not have been to one only of the sons, and not to three. The general rule of law is, that the execution of a power must be according to the substantial intention and purpose of the party creating the power; not restraining . or lessening it by a narrow and rigid construction; nor by a loose and extended interpretation, dispensing with the substance of what was meant to be performed. (Doug. 280. 3 East's Rep. 441.) Powers are to be construed equitably in a court of law as well as in a court of equity. (3 Burr. 1446.) And the general intention must be carried into effect, though it may defeat a particular intent. (4 Term Rep. 87.) Testing the power given in the will before us by these rules of construction, it is evident that the general intention of the testator was to place the farm) of which the premises in question are a part, at the disposal of his wife, to enable her to live comfortably, and command the care and attention of some of
The plaintiff is entitled to judgment.
Judgment for the plaintiff.