(dissenting, in part only):
All of the questions, save two, so thoroughly discussed on the argument of this appeal, were properly disposed of by the referee in an able and comprehensive opinion, and it is deemed unnecessary to reiterate, in different phrase, what he has so clearly expressed. It may be that his conclusions can be sustained by more numerous authorities than he has cited, as illustrated by the brief of Messrs. Poster and Thomson, and A. J. Yanderpoel, Esqs., submitted on the argument, in support of his views, but that is not material. It is enough that he was right.
The effect of the findings is, that the trust fund is appropriated as the donor designed it should be, and his intention, therefore, which is the guide in the construction of wills, prevails.
He meant that the children of his brother, William Nicholson, and their representatives, should have and enjoy the trust fund upon the death of his sisters, and he did not contemplate, unless some excellent reason existed which justified it, that any distinction should be made between them. He exhibited no preference himself, and there is nothing in the case from which the inference of prejudice can be fairly drawn.
The views of the referee are adopted, therefore, as a careful and *469correct exposition and application of the law which governs this case, and this result renders it necessary only to consider the claims of Elizabeth Nicholson, widow of John Nicholson, sixth child of William Nicholson; Eliza Nicholson, widow of Robert George Nicholson, fifth son of William Nicholson; Rosanna Nicholson, widow of Henry K. K. Nicholson, son of Thomas Nicholson, eldest son of William Nicholson; and of William S. Wallace, husband and administrator of Hannah K., the daughter of Thomas Nicholson, all allusion to which seems to be omitted in the opinion of the referee. The questions presented in relation to them are, whether these widows are entitled to a distributive share of the husband’s portion, and whether Wallace is entitled to a part of the share of his wife.
The testator, Samuel Nicholson, conferred upon . his surviving sister the power of distributing the trust fund among such of the children of his deceased brother William, or their representatives, as she should select, but he declared that, in default of such choice, then such moneys should be distributed among such children, or their representatives, per stirpes and not per capita, share and share alike. And further, in order that there should be no misapprehension, he said: “ That is to say, I design the sum of $100,000 for my said sisters, to be divided between them, while both are alive, to pass to the survivor on the death of one of them, a/nd to Toe distributed on the death of such survivor, as aforesaid, among the children of my brother William.”
The intention of the testator was, that the sum set apart for his sisters should ultimately be given to some or all of the children of his brother William, or their representatives, and the right of selection only was given to the surviving sister. In case of the failure to select, the whole was to be distributed among them all, and they all took a vested interest in the subject of the gift, therefore liable only to be divested by the exercise of the power to appoint or select from among them. The surviving sister had not the power to divest the interest, except in the manner provided by the instrument creating the power, and having failed properly "to exercise the duty or right given her, the provision of the will applies and is as if it were written thus: “ Upon the decease of my surviving sister, I direct the said sum of $100,000, to be distributed among the *470children of my brother William, or their representatives.” The fund was disposed of absolutely, subject only to the trust which was created for the benefit of the testator’s sisters, and the power which ought, perhaps, to be called a trust. This subject is treated fully by Perry, in the chapter devoted to “ trusts that arise by construction from powers” (§ 248, et seq.), which contains a correct exposition of the law applicable to a case like this. Under the statute of distributions the widow has always been entitled to share in the personal estate of the deceased husband (Eng. Stat., 2 Black. Com., 515; 2 R. S., 96, § 75), and the authorities sustain her right to receive her portion of the personal estate belonging to the husband, allotted them under the statute of distributions, according to the facts proved. (Cotton v. Cotton, 2 Beav., 67; Merchants' Ins. Co. v. Hinman, 34 Barb., 410 ; see Knickerbacker v. Seymour, 46 id., 198; Luce v. Dunham, 14 S. C. N. Y. [7 Hun], 202.)
For these reasons we think the widows named are entitled to such part of the husbands’ share as would have been distributed to them under the statute, had the money been in possession of the husband at the time of his death.
The claim of William S. Wallace seems to be well founded, to a portion of the funds. The right of the husband to administer upon the personal estate of his deceased wife is a positive right, notwithstanding the statutes of 1848 and 1849. (McCosker v. Golden, 1 Brad., 64; Ransom v. Nichols, 22 N. Y., 110; Barnes v. Underwood, 47 id., 351; Hatfield v. Sneden, 54 id., 287; 2 R. S., 75, § 29.) Under the amendment of the Revised Statutes, passed April 25,1867, chapter 782 (Laws, vol. 2, p. 1926), the provisions respecting the distribution of estates were applied to the personal estates of married women dying leaving descendants then surviving, and the husband of any such deceased married woman became entitled to the distributive share in the personal estate of his wife to which a widow is entitled In the personal estate of her husband by the provisions of that chapter, and no more.
Prior to the amendment, the provisions mentioned were declared inapplicable to the personal estates of married women, but it was also declared that their husbands might demand, recover and enjoy the same, as they were entitled by the rules of the common law. (2 R. S., vol. 2, p. 97, § 79.) The statute of 1867 was regarded as *471restrictive, but the Court of Appeals, determined that it did not affect the rights of the husband, except in the case therein specified, namely, of the wife dying leaving descendants. (Barnes v. Underwood, 47 N. Y., 351.)
Mrs. Wallace left no descendants. The decree should be modified by making the necessary changes to meet these claims, but otherwise it is affirmed. The costs of the appeal should be paid out of the fund.
Judgment affirmed.