This is an appeal from a judgment at Special Term requiring the defendants Mary R. Washburn and Joseph Walker, Jr., as executrix and executor of Emma Jane Richardson, deceased, to account to plaintiff and other heirs at law of Thomas W. McLeay, deceased, for the proceeds of the sale by the said Emma Jane Richardson, during her lifetime, of real estate formerly belonging to said Thomas W. McLeay, deceased, and for moneys paid to said Emma Jane Richardson, in her lifetime, by the' city of New York for property taken in condemnation proceedings, and which formerly belonged to said Thomas W. McLeay. '
Tliere is no dispute as to the facts, and the only legal question involved is as to’ the construction to be given to the *786will of said Thomas W. McLeay, who was the husband of said' Emma Jane Richardson (she having contracted a second marriage), and who died in the year 1865, leaving a wid’pw, hut no children, father or mother. He also left one brother, four' sisters and a number of | nieces and. nephews. His will, which we are called upon to construe, reads as follows:
“In the Name of- God, Amen. ■
“I, Thomas W. McLeay of the City of Hew York] of the age of years and' upwards and being of sound mind and memory but aware of the uncertainty of life, do makje, publish and declare this my last will and testament in manner following, that is to say: •
“ First. I give, bequeath and 'devise 'to my dearly beloved wife Emma Jane McLeay all my personal estate of every! nature and.kind and wheresoever situated to have and to hold to her own use forever.
“Second. I give, bequeath and devise all my real estate of what nature or kind soever, and wheresoever situated to • ' . i my said wife, to be used and enjoyed by her during the term of her natural life, and from and immediately aft'pr her death one' house and lot such. as iny said Wife may ichoose and have designated in writing to Mary Eosenia Doughty, and to her heirs and assigns to have and to hold' to her or their .own use-forever and all the . rest and residue of my real estate or such parts or portions thereof as are not previously sold by my ’said wife to such of my brothers and sisters’ as shall be living at the time of her death share and share alike .if more than one, and to their heirs and assigns tó have and to hold to their own use forever;.and I authorize and give my said wife hereinafter appointed executrix of this miy last will? ⅛11 power to sell and dispose of any or all; of my real estate, at public or private sale, at such time or timéis and upon such terms and in such manner as to her shall! seem meet and to give good and valid deeds therefor and 1, also give lier as full power and authority to. manage said real estate as I myself have, and I also authorize her, at her discretion,, to give to any or all of my said brothers and sisters such sum sums from the principal of my estate, as she shall deem best, or desire and I hereby appoint my said wife Emma Jane McLeay *787sole executrix of this my last will and testament hereby revoking all former wills by me made.”
The widow qualified as executrix. She went into possession of the real estate and sold it all during her lifetime, except a parcel which was taken by the city of New York in a condemnation proceeding, and the award for which was paid to her. She never, in form, designated any house and lot to go to Mary Rosenia Doughty under the terms of her husband’s will, but some years after she had sold all of the real estate she repurchased one of the houses and. lots and then conveyed it, for a nominal consideration, to the said Mary Rosenia Doughty, then Mary Rosenia Washburn. This has been held by the judgment appealed from to have been an ineffectual attempt to exercise the power of appointment given by the will, and the executors are required to account for this house and lot, or its value, and for the rents thereof since the death of Emma Jane Richardson, deceased.
The appellants, executrix-and executor of Emma Jane Richardson, deceased, contend that under her husband’s, will their testatrix took an estate in the real estate in fee simple abso-' lute, subject, however, to ■ the executory devise to the surviving brothers and sisters of so much of the real estate as to - which she failed to exercise her power of disposition.
The respondents, on the other hand, contend (and so it was held at Special Term) that the said testatrix took only a fife estate' under the will, and that as to the proceeds of any real estate sold by her the testator, Thomas W. McLeay, died intestate. It is apparent upon the face of the will that the desire which was uppermost in the mind of the testator was that the ■ whole management and disposition of the real estate should be left to his wife to deal with as she saw fit. To those members of his family who - might survive her he left only what she might not see fit to dispose of in her lifetime. The main features of the will, so- far as it concerns the real estate (with which alone we are now concerned), are: (1) The gift of a fife estate to his wife; (2) the grant to her of an unrestricted 'power of sale; (3) the gift over, to the brothers and sisters who might survive her, of only so much of the real estate as the wife shall not have sold in her lifetime; (4) the a nee *788of any general devise over of the real estate after the termination of the life estate, and the absence of any specific gjift over ■ . or other disposition of the proceeds of any real estate -which the wife might sell during her lifetime. The gift overj of the undisposed real estate to the brothers and sisters failed because no brother or sister survived the wife, and there was' no real estate undisposed of at her death. The respondents, therefore, rest their claim upon the supposed intestacy of the testator as to the proceeds of the real estate sold by the wife. i
The appellants’ contention rests upon the provision^ of the Revised Statutes which were in force when the testator died and which read as follows: “Where an absolute power of disposition, not accompanied by any trust, shall be given to •the owner of a particular estate, for life or years, such; estate shall be changed.into a fee, absolute in respect to the rights Of creditors'and purchasers, but subject to any future jestates limited thereon, in case the power should not be executed, or the lands should not be sold for the satisfaction of debts.” (R. S. pt., 2, chap. 1, tit. 2, § 81.) I
. “In all cases, where such power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee shall be entitled to an absolute fee.” (Id. § 83.) ■ . '
“Every power of disposition shall be deemed absolute by . means of which the grantee is enabled in his lifetime to dispose, of the entire fee for his own benefit.” (Id. § 85.) ¡ ' .
These provisions are now incorporated in the Real’Property Law (Consol. Laws, chap. 50; Laws of 1909, chajp. 52) as sections 119, 151 and 153. These sections have furnished the theme for many learned and. interesting opinions, toj most of which,. however, it will not be necessary to refer at present. Our duty is to ascertain whether or not the! -present case falls within their provisions. We have in the first place a life estate in the widow. Nextwe find her invested with an absolute power of disposition— absolute because it-, is not. subject to the consent of any other person as in Ackerman v. Gorton (67 N. Y. 63), nor so restricted that it could be exercised only for a particular purpose as. in Terry v. Wiggins (47 N. Y. 512) and Hasbrouck v. Knoblauch (130 App. *789Div. §78). It was beneficial because no future estate or interest in the proceeds of so much of the real estate as might he sold was given to any one, or in any manner, disposed of. In this respect the will under'consideration is clearly distinguishable from those hi which a life estate is given, with remainder over of the whole estate, with a power of sale obviously intended to be exercised merely as a matter of administration and for the benefit of the estate. It is not easy to distinguish this case in principle from Leggett v. Firth (132 N. Y. 7), although the language of the will in that case was widely different from that now under consideration. As in the present will the testator bequeathed his personal estate to his wife absolutely. He then provided as follows: “ I also give, devise and bequeath to my wife Ellisheba all the rest and residue of my real estate, but, on her decease, the remainder thereof, ijLcmy, I give and devise to my said children, or their heirs, respectively* to be divided in equal shares between them.” Although the first nineteen words of the clause, read without the context, expressed an absolute gift of the real estate to the wife, the Court .of Appeals, reading the whole clause, construed the gift as being only of a life estate, but it found in the limitation of the devise over to the children, contained in the words, “if any,” an implied power of disposition in the wife, during Jier lifetime. Under such construction that case and this present a perfect parallel. In that the gift of a fife estate was found by construction; in this it is plainly expressed. In that a power of disposition was found by implication; in this it is to be found in the words of the will. ' In both cases the devise over is limited to so much of the real estate as shall not have been disposed of by the fife tenant during her lifetime. The Court of Appeals held that the will conferred upon the wife “ a beneficial power of disposition of all the property ” during her lifetime, with a limitation over in case of her death without an exercise of the power, and its conclusion was expressed in these words: “We think that the widow took a-life estate with a power of sale to be exercised during her life for her own benefit and that the children took a remainder in fee, subject to the exercise of the power.” The court cited and referred with approval to Thomas v. Wolford (49 Hun, 145) and Colt v. Heard (10 id. 189). In *790the first cáse the devise over was “should mere he a1135 left,” and in the second of “such part thereof as he may have at the time of his decease.” In both cases it was held that -the first devisee took a life estate, with a beneficial jow.er of s'ale, and that the second devisee took only what was left upon the death of the first. We think that under the plain provisions of the statute.the will under examination conferred upon jthe life tenant the absolute beneficial power of disposition duiing her lifetime of the real estate, and that as to such property as she did dispose of her estate amounted to a fee, - and the proceeds r atten-became her absolute property. The respondents call 01 tion to certain features of the will Which, Ls they consider, indicate a different dispository intention on tie part of the testator. “The statutory effect, and not' the donor’s intent, is the controlling factor in the construction cf powers.!” (Per Werner, J., in Farmers' Loan & Trust Co. v. Kip, 1912 N. Y. 266-279.) But even if we seek the intent of the. testator we find nothing in the will inconsistent with the construction we have given it. The power to desigate one house and lot to. go to Mary Rosenia "Doughty was clearly inserted in view of the possibility that the widow might not sell the real estate, in which case the testator desired one house and lot to b!e given to Miss Doughty, before the estate was divided between the brothers and sisters. There is nothing in thej suggestion that the power of sale was' given to the wife as executrix and not. individually. The language is, “I ⅜ ⅜ ⅜ give my said wife ”• power to sell;, the words following, •“ hereinafter appointed executrix,” are merely descriptive of the person, not: of the capacity in which she was to act. If there could be any doubton •this score it would be completely resolved by thk languagp of the' gift over to the brothers and sisters, which is] “my real estate or such parts or portions thereof as .are not previously sold by my said wife. ” The conclusion we have reached concerning the nature, of the title given to the testator’s widow renders it" unnecessary to consider the question whether or not there was a valid exercise of the power to appoint a'house! and lot tb go to Mary Rosenia Doughty (now Washburn).. If the widojw took a beneficial power to sell the real estate, she had the right to dispose, of the proceeds as she saw fit, and the respondents can*791not question her gift of a house and lot to Mrs. Washburn. The facts being undisputed and fully found by the court at Special Term, and the only question in dispute being one of law, it is not necessary to remand the case for a new trial.
The judgment appealed from must, therefore, be reversed and judgment entered in favor of the appellants dismissing the complaint and construing the will in accordance with the view hereinbefore expressed, with costs in this court and the court below to said appellants Mary E. Washburn individually, and Mary E. Washburn as executrix, and Joseph Walker, Jr.., as executor of Emma J. Eichardson, deceased, against the plaintiff.
Ingraham, P. J., Clarke and Miller, JJ., concurred; Laughlin, J., dissented.