Opinion by
Mr. Justice Sterrett :In 1842 Aaron Bums died seised of the lots in controversy, having first devised the same, inter alia, as follows: “I give and bequeath to my daughter Mary, intermarried with Joseph S. P. Harris, the house and lot,” etc., describing the property; “and I hereby authorize and empower iny said daughter Mary to sell and dispose of the same as she may think proper; but in case of her death and the property as aforesaid remaining unsold, then it is to be equally divided among her children, share and share alike, as they may arrive at the age of twenty-one. ”
In 1860 the devisee Mrs. Harris died, leaving her husband and four children surviving her. In 1873 this action of ejectment was brought by three of the children and the husband who had acquired the interest of the fourth child then deceased. They contended that the property had not been sold or disposed of by Mrs. Harris in her lifetime; and hence, according to the terms of the will, the title in remainder was vested in her children.
The defendants, on the other hand, claiming under the deed of Mrs. Harris, of March 25, 1851, to Rev. James Stevens, contended that the lots in controversy were conveyed to him in fee for the consideration of $1,400; that this was done in execution of the power of sale contained in the will. In support of this position the deed was offered in evidence, but the court rejected it, because the grantor’s husband was not a party thereto; and thereupon a verdict was directed for plaintiffs.
If the deed had been received and full effect given to it as a conveyance, the defendants would have been clearly entitled to a verdict. It will thus be seen that the controlling question presented by the record is whether the deed of March 25, 1851, operated as a conveyance of the lots to Stevens, under whom defendants claim. The solution of that question depends upon the construction given to the devising clause above quoted.
It was contended by plaintiffs in error that Mrs. Harris took merely an estate for life, with power independently of her hus*202band to sell or otherwise dispose of the devised property as she might think proper; and, in the event of her dying without having executed the power of sale, an indefeasible estate in remainder was given to her children; that the deed above mentioned was a good execution of the power, and therefore operated as a conveyance of the title in fee to her vendee, James Stevens.
An examination of the will has satisfied us that the construction thus contended for is correct and in harmony with the general scheme of the testator, as evidenced by other clauses of his will. Construing the devising clause in question according to the plain import of the language employed and in the light of other provisions of the will, we think the testator intended to give Mrs. Harris a life estate in the lots, with remainder in fee to her children, subject, however, to devestiture by the execution of the power of sale given in express terms to the life tenant.
The power thus given to Mrs. Harris by her father is a power to appoint, by way of sale or otherwise, to other uses than those specified in the will; and was, therefore, well executed by herself alone without her husband joining in the deed of conveyance to Stevens. Nothing is better settled than that a feme covert may, without the concurrence of her husband, execute any kind of power, whether given to her when single or married.' 4 Kent, Com. 324; Sugden, Powers, 148.
To require his concurrence might not only embarrass the depositee of the power in its execution, but in case of his refusal to concur it would prevent its execution altogether and thus defeat the testator’s intention. It is obvious from a consideration of the entire will in this case, that the intention of the testator was to exclude the husband from all interest in or control over the property to which the power of sale relates. Stevens, the vendee of Mrs. Harris, derived title to the lots in question, as part of the estate of Aaron Burns, under and by virtue of the power of sale, and not by virtue of any estate in Mrs. Harris herself. The only estate she had was for life; but the power of sale when executed, as it was by a regular deed of conveyance, vested in him the fee to the lots in controversy; and the plaintiffs in error, claiming under him, should have been permitted to show their title.
Judgment reversed and a venire facias de novo awarded.