While. Belinda Pettigrew, as the executrix of her husband’s will, was thereby expressly given the absolute power of sale of his real estate, yet in the deéd which she gave there is no mention of such power. The question presented for determination, therefore, is whether by such deed she conveyed the entire fee or simply her life estate. Section 124 of title 2 of chapter 1 of part 2 of the Revised Statutes (1 R. S. 737), which was in force when the deed was given, provided that “every instrument executed by the grantee of a power, conveying an estate * * *, which such grantee would have no right to convey * * *, 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.”
In Mutual Life Ins. Co. v. Shipman (119 N. Y. 324) it was held *14that' the enactment of this provision of the Revised Statutes, which is couched in- almost the identical language' of section 155 of the present Real Property Law (Laws of 1896, chap. 547), and from which the. provision of the Real Property Law was taken, did not change the rule of the common law as to the effect of a conveyance by the donee of a po\yer who is also the possessor of other interests in the property to which the power relates when in the" conveyance no mention is made of the power. -
. The common-law rule is well expressed by a quotation' in the " case cited from Sugden on Powers (3d Am. ed. p. 477). where it •is said that.“the doctrine settled by the decisions seems to be this : When.the donee of. a power to sell land possesses also an interest in the subject of the power, a, conveyance by him without actual reference to the power will not be deemed an execution of it, except there be evidence of an intention to execute it or at least in the face ' r N of evidence disproving such intent.”
Kent, in "his Commentaries,, says: “ The "power may be executed without reciting it, or even referring to it, provided the act shows that the donee had in view the subject.of the power. * * * The general rule of construction, both as to deeds and wills, is, that if there be an interest and a power existing-together in the same'person, over the same subject, and an act be done without a particular reference to the power, it will be applied- to the interest, and not to the power. * * * .In construing the instrument, in cases where the party has a power, and also. an interest,"the intention is the great, object of: inquiry.”. ' (4 Kent Comm. [14th ed.] *334-336.)
Chief Judge Denio, writing the opinion of the Court of Appeals ' in White v. Hicks (33 N. Y. 383, 393), quotes with-approval the language of Judge Story in Blagge v. Miles (1 Story, 426), who, after examining the -English. cases on the subject, there says : “ All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it shall appear by words, acts or deeds demonstrating the intention.” ' •
The general rule stated by Kent and by Sugden is that contended for as applicable to this case by counsel for the appellant, but these eminent authorities each indicate that the general rule is *15nevertheless subject ‘to the exception that effect .must be given to the intention of the parties if that can be ascertained.
Here the intention is clear'. The grantor received and the grantee paid full value for the premises, and the grantor covenanted that she would forever warrant and defend the grantee in the quiet and peaceable possession of the premises.
It is not to be presumed that the grantor would have taken full value for the premises, or that the grantee 'would have paid that amount, for the conveyance of a partial interest only. The deed in form being of the entire fee with a warranty of the title thereto shows clearly that the grantor intended to convey not only what she had as a life tenant but what she was entitled to dispose of by virtue of the power of sale. She also described herself as the widow of Smith Mitchell,* which indicates that in some way fehe thought she could only give a good title to the. entire fee as his representative. • The deed was evidently prepared by some one unacquainted with the law, but nevertheless the intent to convey the entire estate is apparent, and if heed is given to such intent the complaint was properly dismissed.
The. appellant relies upon the cases "of Weinstein v. Weber (58 App. Div. 112) and Mutual Life Ins. Co. v. Shipman (supra), but these cases were brought squarely under the rule rather than under the exception, which it seems to me governs here.
The fact that the husband- of Delinda joined in the conveyance is of no significance, for it was no more essential for him to join in a deed to convey his wife’s life estate thap to join in a deed of conveyance under the power of sale. -
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.