The bill, in substance, alleges two grounds for the relief asked; first, that the contingency upon which, under the will of her husband, the power of Elizabeth Hutchinson to sell the real estate of which she was constituted tenant for life, never arose; and, secondly, if it did arise, that the conveyance made by her to the defendant, upon the consideration disclosed, was made in fraud of the power.
Upon the first of these grounds, we doubt whether sufficient cause is shown for the interposition of the court. There is certainly room for question upon the evidence, whether, after satisfying the debts of the testator out of his personal estate, as far as it would go, and the balance of them, so far as the personal estate was deficient, out of the realty upon which they were charged, the profits of a small house in Smithfield, and of some thirteen acres of farming land, were sufficient, in the hands of a woman, for her comfortable support and maintenance, however, humble might be the scale upon which, according to her condition and expectations, we might be disposed to adjust it. *Page 319
But upon the other ground alleged, the proof clearly brings the case within the jurisdiction of the court, both for discovery and relief. It is, that the life-tenant colorably sold the estate to the defendant for the sum of twelve hundred dollars, but really conveyed it to him without money consideration, for the purpose of promoting herself in marriage. It is not contested that this was substantially the fact; the main consideration of her conveyance being, that the defendant would marry her, although, as he swears, he paid her, at the time of the execution of the deed one hundred dollars, to enable her to settle a debt which she was owing. Now the question is not, as was argued for the defendant, whether this was not the best and most comfortable way in which the life-tenant could provide herself with a support by means of the estate, which, for that purpose she was empowered to sell; but, whether it was such an execution of the power as satisfied the intent of the testator in giving it. The will makes the widow but a life-tenant, with remainder in fee to the testator's children. A power is given to her to sell so much of the real estate as in her judgment shall be necessary for her comfortable support and maintenance through life, provided the rents and profits, to which she would be entitled as tenant for life, should prove insufficient for that purpose. In other words, the power to sell and to appropriate the proceeds of sale, so far as necessary, to her maintenance, was, to assure it, given to her, in addition to her right to rents and profits as tenant for life. To sell a portion of it, or to sell or encumber the whole of it, as her necessities might require, and to apply the proceeds to their relief, — in other words, the common sense of such a provision, was undoubtedly what was in the mind of the testator when he made it. Nothing, probably, was further from his thoughts, than that he was conferring upon his widow a power to buy with his estate, within a few months of his death, an eligible marriage for herself, to the disinherison of his children. The result illustrates how completely such an execution of the power defeats, to the injury of those entitled in remainder, the probable intent of the testator. Within fifteen months of the marriage thus purchased, the widow of the testator, now wife of the defendant, dies, leaving *Page 320 the defendant the gainer of this estate, at the expense of the remainder-men, in addition to having enjoyed during this interval the happiness of the society, as he gives us to understand, of the best of wives. The widow undoubtedly had a right to marry again, and for aught that we know, wisely chose her husband; but good as he might be, she had no right, under this power, to buy him with the estate of his predecessor; thus staking the property of others, as well as her own well-being, for what has proved to be so short lived a happiness. This was, in the sense of a court of equity, and for the purpose of its relief, a fraudulent execution of the power of sale entrusted to her; and the defendant, who was a party to the fraud, can derive no profit from it. 2 Sugden on Powers, ch. 11, § 2, and cases quoted.
Let a decree be entered declaring the defendant a trustee of the estate in question for the respective plaintiffs in proportion to their interest as remainder-men under the will of William Hutchinson, and as such, ordering him to convey said estate to them in that proportion. As there is some proof that the defendant, in consideration of the conveyance to him, paid a hundred dollars to Mrs. Hutchinson, in addition to marrying her, let a master inquire into and report upon that fact, as well as prepare and superintend the conveyance to be executed by the defendant. If it turns out that such a partial valuable consideration has been paid by the defendant, the return of it, with interest, must be secured, as the condition upon which a court of equity will relieve against such a fraud. Daubeny v.Cockburn, 1 Mer. 626.
The bill does not specifically pray for an account of the rents and profits of the estate received by the defendant since the death of the life-tenant, but we think that the plaintiffs, under the prayer for general relief are entitled to it in recoupment against the one hundred dollars and interest; and, therefore, order the master to take such an account, making the defendant all just allowances. *Page 321