74 N.W. 346
Wis.
1898
WiNslow, J.

The findings of fact were fully proven by •clear and satisfactory evidence, and it is not deemed necessary or profitable to review the evidence to demonstrate *519• that it supports the findings. The questions remaining for -consideration are purely legal, and are two in number, viz.: (1) Did the power given in the will to the widow, Lxicina, authorize her to mortgage the premises ? and (2) If the power to mortgage was granted by the will, then was such power exercised by the execution of mortgages which contained no reference to the power? and, if it was not, could such mortgages be reformed and made effective as valid mortgages upon the fee under the power?

1. The widow was left with a very small amount of property and with a very large family to support. It clearly appears by the will that the testator intended that his widow should have a life estate during widowhood in all the property, and that she should also be clothed with power to use and dispose of all the property left in carrying on a small mercantile business and supporting herself and educating the children, as fully as the testator could do if living. This was really necessary, under the circum-t stances, and in fact was the only reasonable provision which -could be made for her, in default of giving her an absolute fee. The question is, "What is the proper construction"to be given to the provisions of the will, construing it all together, and giving effect tó the manifest intent of the testator as shown by the will, in the light of the surrounding circumstances. Hopkins v. Holt, 9 Wis. 228; Eastman's Estate, 24 Wis. 556; Lovass v. Olson, 92 Wis. 616. Applying this test to the will in the present case, we can entertain no doubt that the intent of the testator was to give his widow power to mortgage the property as well as to sell and convey it. Otherwise she might not be able to educate and support the children, and would not have that full right and power “to hold the property and business ” and carry on the same in the same manner as the testator could do if living, and the clear ■intent of the testator would be defeated. Kent v. Morrison, 153 Mass. 137, 10 L. R. A. 756. In so holding, we are *520not to be understood as bolding that a simple power of sale will authorize a mortgage. This is a question upon which the decisions are not uniform. See Perry, Trusts (4th ed.), § 768; 18 Am. & Eng. Ency. of Law, tit. “Powers,” 940, note 2. "We simply construe the language of this will as giving thfe power to mortgage.

2. The power being established, we proceed to the second question, which naturally divides itself into two questions,, namely: Were the mortgages on their face a valid execution of the power? and, If not, was a case made for their reformation, so as to be valid under the power?

The widow had a life estate during widowhood, and a power of sale over the same land. The well-established rule-at common law is that where a person has both an interest and a power, a conveyance which contains no apt words indicating an intent to exercise the power will be held to be merely a conveyance of the interest, and not an execution of the power. 4 Kent, Comm. 334, 335; Sugden, Powers, ch. 6, sec. 8; Mut. L. Ins. Co. v. Shipman, 119 N. Y. 324. This rule was recognized and adopted in this state in case of a quitclaim deed made by a life tenant who had a power to convey the fee. Towle v. Ewing, 23 Wis. 336. It might seem that this rule was changed by sec. 2149, R. S. 1878, which is the same as sec. 51, ch. 85, R. S. 1858, and reads as follows: “Every instrument executed by the grantee of a power, conveying an estate or creating a charge, which such grantee is authorized by the power to convey or create, but which he would have no right to convey or create, 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.” The same statutory provision, in substance, exists in New York, and the court of appeals' of that state, in passing upon it in a case almost identical with the one at bar, held that the statute was intended “ to provide that, whenever a single power exists under which a grantor may *521convey or mortgage real estate, his conveyance is attributable to the exercise oí the power,” but that it was not intended thereby to change the long-existing rule that, if a grantor possessed an interest as well as a power, his mere-conveyance, without reference to the power, would be hekh to apply only to his interest. Mut. L. Ins. Co. v. Shipman, supra. Such, also, is the apparent effect of the decision of this court in the case of Towle v. Ewing, supra, although the statute was not referred to in that case. We are content to adopt this construction, and therefore hold that the mortgages, upon their face containing no reference co the power, only cover the life estate of Lucina H. Williams.

This conclusion, however, does not preclude the possibility of reformation of the instruments as between the parties, if a proper case for reformation be made. Such an instrument is fulty as susceptible to reformation as any other conveyance, where no rights of third persons have intervened. If the understanding was that the mortgages should be executed under the power granted by the will, and should cover the fee, and by mistake or ignorance of the scrivener they were not made in the proper form to carry out the agreement, then a court of equity has power to reform and enforce them as contemplated and agreed by the parties. Such' errors as these are very frequently corrected by a court of equity, and there have been marked examples of the exercise of this beneficent power by this court. Green Bay & M. Canal Co. v. Hewitt, 62 Wis. 316; Silbar v. Ryder, 63 Wis. 106; Whitmore v. Hay, 85 Wis. 240; 2 Pomeroy, Eq. Jur. § 845.

In the present case it was conclusively shown, not only by the circumstances but by direct evidence, that both mortgagor and mortgagees intended and agreed that the fee of the land should be mortgaged, and not the mere life estate* and that they knew that the power to mortgage came from the provisions of the will, and that they supposed that a *522mortgage in usual form would be sufficient to make a valid mortgage on the fee uuder the will. Ro lawyer was consulted, but one of the mortgagees drew the papers, and did not suppose it necessary to recite the power, but thought an ordinary mortgage would be sufficient. If a court of equity could not relieve the mortgagee under such circumstances, .and make the agreement what it was intended to be, it would be a reproach to the law. The court found that the intent of the parties was to execute the power and mortgage the fee, and that by mistake the papers were drawn without reference to the power, and that the plaintiff was entitled to the relief prayed in his complaint, a part of which consisted in the reformation of the mortgages.

We do not find that the judgment contains any provision specifically reforming the mortgages, but it adjudges foreclosure and sale of the fee in all respects as though the mortgages were reformed, and we regard this judgment, under the findings, as amounting substantially to a judgment of reformation.

By the Court.— Judgment affirmed.