(dissenting):
This is an. action for the construction of the will of Thomas W. McLeay, which was duly admitted to probate by the surrogate of the county of New York, as a will of real and personal property, on the 8th day of May, 1865, and upon which letters testamentary were duly issued to Emma Jane' McLeay, the widow of the testator and the executrix named in his will. The body of the will is as follows:
“In the Name of G-od, Amen.
“ I, Thomas W. McLeay of the City of New York, of the age of years and upwards and being ¡of sound mind and memory but aware of the uncertainty of life, do make, 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 my said wife, to be used and enjoyed by her during the term of her natural life, and from and immediately after her death one house and lot such as my said wife may choose and have desig*792nated in writing to' Mary Eosenia Doughty, and to her heirs- and assigns to have and to hold to her' or their own usé 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 ihe time of her death share and share alike if more than one[ and to their heirs and assigns- to have and to hold forever; and I authorize and give my said to their own use wife hereinafter appointed executrix of this my last will, full power to sell and dispose of any or all of my real estate, a-; public or private sale, at such time or times and upon such terms and¡ in such ■manner as to her shall seem meet and té give good and valid deeds therefor and I also give her as full power and authority to manage said real estate as I myself hajve, and I also authorize 1 her, at her discretion, to give to any or. all of my said brothers and sisters such sum cr sums from the principal of my. estate,, as she shall deem bist, or desire and I hereby appoint my said wife Emma Jane McLeay' sole executrix of this my last will and' testament hereby revoking all former wills by me made. In Wi ness Whereof,' I have hereunto set my hand and seal this twenty-fifth j day of April in the year óf our Lord one thousand eight hundred and sixty-one.” J j
The questions presented for decision arisje under the provisions of the' will- with respect to the devise of the real estate. ■
The widow individually and as executrix, in the year 1866, sold and conveyed three parcels' of real estáte of which the testator died seized. In the year 1810 the city of New York. acquired by condemnation proceedings for Lexington avenue, part of the remaining ! the opening of ands left by the .testator, for'which an award of $27,026 was made: to the “estate of ” the testator,, which was paid to the executrix and receipted for by her in that capacity. On | the 11th j day of February, 1880, the widow,- as executrix, so|Ld and conveyed the two remaining parcels of land of which ¡the testator died seized. She thereafter and on the 30th day of Aprl repurchased in her own name individually part of thi erty so conveyed by her in the year 1880, and 1892, s prop-on the twenty-*793sixth, day of July that year she executed a conveyance thereof to said Mary Rosenia Doughty, then Mary R. Washburn; but she did not state in said conveyance, or in any writing, that this was done in an attempt to comply with the provisions of the will of the testator, nor did the deed contain any reference thereto. She did not, before so conveying the real estate, or at any time thereafter otherwise than as already stated, attempt to designate a house and lot for said Mary Rosenia Doughty pursuant to the authority conferred upon her in the will.
By the interlocutory judgment, from which the appeal is taken, it is adjudged, pursuant to the decision, , that the widow of the testator merely took a life estate in the real property and in the proceeds thereof, and that .the brothers and sisters of the testator took a vested remainder in the real property, but that, inasmuch as they all predeceased the life tenant, the remainder in the real estate and in the proceeds of the sales and condemnation, which was limited upon the life estate of the widow therein, was undisposed of and upon the death of the widow passed to the descendants of the deceased brothers and sisters of the testator, as his heirs at law, and that they are entitled to have the executor and executrix of the deceased executrix of the testator account therefor, together with the rents, income and profits thereof since the death of the fife tenant. The interlocutory .j udgment also ad j udges that the power of appointment given by the will to said Emma Jane McLeay, who at the time of her death was Emma Jane Richardson, to appoint a house and lot to Mary Rosenia Doughty was a power to be exercised by will and not by deed, and could not be exercised by deed not referring to the power.
The respondents contend, in accordance with the decision on the trial, that the widow took only a life estate in the real property, and that the proceeds of the sale of the real property, as well as the proceeds of that taken by condemnation, were held by her as life tenant, and that the brothers and sisters of the testator took a vested remainder therein, subject to be divested by their deaths, during the life of the fife tenant, and that on their deaths during her lifetime their interests became divested and the real estate i’emained undisposed of by the will *794and, therefore, became intestate property. The' appellants contend that the widow took the entire estate, and that, therefore, the executrix of the testator was not accountable, andj:they- as her executor and executrix are not accountable for the proceeds of the real estate. ' Í
. If the contention of the appellants should be sustained, it is manifest that the' widow of the testator, having title ,to the property, was unrestricted with respect to her.disposition of it, and that it was competent for her to repurchase andj convey part of.it to said Mary R' Doughty. We are not, however, concerned with the validity of the title acquired under that conveyance. We are only required to construe the will. It is quite plain that until the exercise of the power of appointment conferred upon the widow or executrix unjier the will said Mary R. Doughty acquired no interest in the], real property of the , testator, and we think that power was never exjercised. The .authority was not to sell- and convey the real estate and out of the entire proceeds, or the proceeds of one parcel,j tp purchase real estate for said Mary R. Doughty] but to designate and appoint á house and lot left by the testator- for hen If it could be exercised with respect to "the proceeds' of the sale of a particular house and lot, a question which it is noi necessary to decide, there- is nothing here to shoy- that the action taken by the widow was intended as an exercise of the power óf appointment. ■ !
I am of. opinion that the learned Special Tprm properly construed the will., Whether the will was drawn by a layyer or a layman, its author apparently fully appreciated the | difference between giving property outright and giving a lifé estate therein, and by express terms the personal property wjap disposed of absolutely, and only a life use in the real estate was given-to the. widow. Moreover, if' the testator..intended to devise the .real estate in fee to his widow it would havlelbeen ■unnecessary for him to have conferred a power of appointment on her with respect to one of thó houses and lots for said Mary R. Doughty. Why would the testator have conferred authority in express terms on his widow to manage the real estate if he intended to give the4ame to her .in fee? Why would he have deemed it necessary to authorize her to sell the real estate at *795public or private sale, and at such time and on such terms and in such manner as to her should seem meet, if he intended that she should tafee the same in fee? The discretionary power thus conferred clearly shows that he did not intend that the sale should transfer a life estate into a fee, but on the contrary indicates that he understood that the remaindermen would be interested in the sale and might call the executrix to account therefor. Why should he confer express authority upon her to give to his brothers and sisters part of the principal of the real estate from time to time, which he knew could be done only by selling or what is equivalent thereto, mortgaging the real estate, if he intended to leave it optional with her, by exercising the authority to sell, to take the proceeds absolutely in her own right and freed from any claims on the part of the remaindermen ? It seems to me that the reasonable construction of the will, which will give force and effect to all of its provisions, is that the proceeds of the real estate are to be deemed real estate, and that the only disposition that the testator attempted to make thereof was that they should go to his brothers and sisters who survived his widow. It is quite likely that he did not anticipate that they would all predecease her, for five of them survived him, and that he intended to dispose of all of his real estate. If he did not intend that the proceeds of the real estate should descend as real estate then he attempted no disposition thereof by his will for the use of the real estate as such and of the proceeds thereof are governed by the same clause and one was not intended to be greater than the other. After authorizing the appointment of one house and lot to Mary B. Doughty, he proceeded to dispose of the residue in the following language: “ 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 to have and to' hold to their own use forever.”
The entire argument of the appellants is based on the clause, “or such 'parts or portions thereof as are not previously sold by my said wife,” which it is claimed excepted from the devise to his brothers and sisters such real estate as she might see fit *796to convey. I am of opinion that such construction! is not reasonable, for under it the widow, by selling the real Estate as she did, could take it all herself and thus convert a life! estate into a fee, and it would be quite natural to ejxpect that in such circumstances she would exercise the power of sale. ! Í think it is more reasonable to assume that the'testator intended that the provision with respect to his brothers anjl sisters should be one of substance. The will is susceptible of the construction that its author, who evidently from its composition was a layman,. in providing for the disposition of the residue of the real estate, inserted the clause commencing with the word dor” to obviate any question with respect to the exercise, of tile;power ■ of sale by the executrix. In other words he excepted from the devise by which it was intended and supposed that the| litle to the land as such should pass, the lands, if any, which Had been previously conveyed by his executrix; but he did not except and did not intend to except the proceeds of such sales J The construction of the will is not entirely free frcjm doubt, jbut this I deem a more reasonable construction than! ■ to hold that by the use of the words “to be' used and enjoyfed by her .during the term of her natural life,” language wljich the Court of.
Appeals has held gives merely a life estate (Matter of McDougall, 141 N. Y. 21; see, also, Ackerman v. Gorton, 67 id. 63), a fee give no scope to was devised, for such a construction would many of the provisions of the will. Clearly h life estáte only was devised in the first instance; but it is cohtended- tbit this I i i was enlarged into a fee by the unqualified power of sale and the provision with respect to use’and enjoyment. Thait ,argu-of titiéy2 of chapjtejr 1 of' tsections ⅛ and ment is based on sections 81 and 85 part 2 of the Revised Statutes, which are no-153 of the Real Property Law (Consol.'Laws, \chap. 50Í; Laws of 1909, chap; 52).
Said section 149 provides as follows: “WhenRestate fojr life or years is changed into afee. Where an absolute power of disposition, not accompanied by a trust, is given ⅜ the! qwner of a particular estate for life or for years, such 'estatá is cHánged into a fee absolute in respect to the rights of creditors] purchasers and incumbrancers, but subject to any future 'estates limited thereon in. case the power of absolute disposition is not *797executed and the property is not sold for the satisfaction of debts.”
Said section 153 provides as follows: “When power of disposition absolute. ' Every power of disposition by means of which the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit is deemed absolute.”
These statutory provisions shed but little light on the question presented for decision, for they have long since been confined to cases in which the power of disposition is for the sole benefit of the person upon whom, the power is conferred. (Coleman v. Beach, 97 N. Y. 545; Farmers’ Loan & Trust Co. v. Kip, 192 id. 266, 277.) We, therefore, are required to ascertain the intent of the testator as in ordinary casés, and such intent, when ascertained, governs. If the testator intended that his widow should not be at liberty to enlarge her estate by exercising the power of sale, but that if she exercised the power of sale she would have only a life use in the proceeds of the sale, and that the principal would go to the residuary devisees the same as if the power had not been exercised, then the authority conferred upon the widow of the testator, either individually or as executrix, to sell and convey the real estate was not an absolute power of sale within the purview of the statutory provisions already quoted. Whether a power of sale is absolute, within these statutory provisions is not to be determined by an inquiry as to whether if it be exercised good title passes, hut by considering who take or are interested in the proceeds of the sale. I am of opinion that the power of disposition, although not accompanied by a formal express trust, was accompanied by a trust within the purview of the statute, for if the testator intended that the interest of the remaindermen should attach to the proceeds of the sale, then his widow held the proceeds of the sale for her own use to be sure as to the income, but in a sense in trust for the remaindermen, for the life tenant becomes a trustee for them (Seaward v. Davis, 198 N. Y. 415, 420; Leggett v. Stevens, 185 id. 70, 76; Weinstein v. Weber, 58 App. Div. 112; 78 id. 645; affd., 178 N. Y. 94; Matter of Hamlin, 141 App. Div. 318), and it is upon that theory that her personal representatives are called upon to account. The statutory definition of ah absolute power of disposition sheds light on what *798was meant by the words, ‘ ‘ not accompanied by a trust. ; When the proceeds of the disposition of the property are held in part for the benefit of another or others then therk is a trust ¡within the .contemplation of the statute. ! ■ I ‘ .
I, therefore, vote for affirmance. ' '
Judgment.reversed and judgment ordered as directed in opinion. Order to be settled on notice. ! ! '