The opinion of the' court was delivered by
Huston, J.It has been contended that the power of appointment does not prevent the estate or money from vesting in default of appointment. This, however, is where by the will, the estate is limited expressly-in case no appointment is'made. Sugden on Powers, 148, 151. On recurring, to the authorities cited, it will be found, that the case in 1 Vez. 209, was a devise to the testator’s, daughter of three thousand pounds, for the' us.e of her younger children, to "be by her distributed among them, in such a manner and shares as she shall think fit, and it was held to vest in the children; It is the *119same as if the devisor had given it to her younger children equally, unless she directed otherwise; and the chancellor expressly says, “ If might have been different had he given it to his daughter for life, and afterwards to her younger children, because, then it would be contingent and a devise over.” *
The case in 2 Vez. 209, is the same;, a devise t'o younger children in such shares as their father should appoint.
The case in Ambler, 562, is of the same kind, and nearly in the same words, and it was held to vest in the children, and' the case concludes, the distinction is. between the case where a sum of money is provided for portions of children, and the father and mother have only the power to fix' the time of payment, and quantum for each child; and where no sum is secured but in case of the appointment. ■ ...--. ,
This case differs from all of them, but comes nearer that supposed in the concluding words. Here there is no person , named or designated to whom the appointment is to be made. The testator stops at the death of Lewis; beyond that he (loes not direct it.
The distinction seems to be, and the point contended for by Sugden is, that if the testator after the life estate to Leíais, had given the property, if not disposed of by Lewis, over to a 'third person, it would have vested in that person,- subject to be. divested by an appointment by Lewis; but that is not this' case.
Certain actions, for real estate, in England, require,a person seised of the freehold to be always in existence, on.whom the process may be served, and the doctrine that the fee cannot be in abeyance, has been a means to prevent perpetuities; but every form of action relating to personal estate, may be brought against the person in possession of it; -and besides, it vests, on" the death of the testator, in the executor for the purpose of paying debts and legacies, whether directed to do so by the will or not. It does not pass out of the executor without his assent, even to a legatee, and when directed to pass to a legatee for a limited time or for á special purpose, the absolute interest may still continue in the executor, if necessary to fulfil the intention of the testator, or,to enable him to do his duty as executor; for example, suppose immediately before or at the death of Lewis, in this case, a debt of the testator, not barred by limitation, had been made known to the executor, or recovered against him by suit at law;, this money could have, been legally applied to the payment of such debt.
This matter lately came before this.court, in a case much discussed, in which the judges, though not unanimous in other points, •agreed on the construction of a devise such as this. I consi-' der the point settled by that case; and, if not, I would consider the intention of the testator to be so plainly expressed in this, as to govern the.construction, unless it would contradict some long established rule of law, for most clearly the testator devised his property in this will, expressly for the purpose of preventing his son *120from squandering it. It is, none of it, given over to strangers, nor intended to go to strangers. The widow and mother of Leíais., is to have all during her life, with power of disposition; evidently, that if Lewis did not become more prudent, she might, by will, secure-it against his imprudence; if she. did not, the father provides for half of it. Flintham’s Appeal, 11 Serg. & Rawle, 16, settles, that the widow and Lewis, each took an estate for life; but for that, I should haye doubtedwhether Lewis, at least, did not take .absolutely. ■ ,
As to the part devised to the widow, he giyes all .to her during her natural life, and at her death one half to be at her disposal. She. did not dispose of it. It was then personal estate of the testator, remaining after payment of debts undisposed of, and went to 'Lewis as next of kin. This'part vested in him absolutely, and is liable for his debts., •
The other half' remaining at. the widow’s death was to be put. at interest for the use and benefit'of his son Lewis, and he to receive the interest annually during his life, and at her decease the- principal and interest- to be at his disposal. This has, as I said, been held a life estate. Real estate gi.ven to a’ man for life, does not descend to his heirs, nór does- personal estate given for life, go to his executors, or next of kin.'. -Lewis had the use during his life, witb the power of disposing of it at his death. If it went to his next of kin, he would haye. been, absolute owner, and not for life. Lewis did not dispose of it.'
This half, .then; Was in the hands and possession of the defendant as-executor of the testator,- and, being undisposed of by the will,, goes to the next of kin of'the testator. The plaintiff is.next of kin to the testator, and entitled, to this half. The administrator of Lewis is entitled to the first half which fell to Lewis absolutely at the death of his mother. If Lewis left'debts unpaid, they must be discharged; and, if any surplus'remain, that will go to the plaintiff ás next of kin to Lewis, but will be demandable from the defendant, in his capacity of administrator of Lewis.
Gibson, C. J:It seems to me, the plaintiff can.take nothing as' next of kin to the testator;, ñor claim paramount to his father, unless by implication under- the will. It is difficult to comprehend how the. vesting of an interest undisposed of by the will, shall await the happening of a-contiiigency; or how, where there is an express bequest for life coupled with a power of appointment, the testator shall be said td die intestate, or otherwise, as to the residue, just as the person to appoint may afterwards happen to execute the power. A.power to appoint, is not an interest in the thing bequeathed; otherwise a power to dispose of the absolute property, would always be a bequest of the absolute property, which it clearly is not; and, it seems to me, that whatever is not disposed of by the will, sinks into the residuum, and vests in the next of kin necessarily at the death of the testator, subject; however, to be divested by an ex-*121ereise of the power of appointment; But, although the plaintiff, as it seems to me, cannot take as next of kin, a doubt-occurred during the argument, whether to effect the manifest intention that the property-should be exempt from the legatee’s debts, and .to prevent the will from'failing of effect altogether, we ought not to imply á bequest over, in'the event, of a failure'to appoint. And, undoubtedly, we ought, if there were any thing to designate the person to take. But there is nothing to designate the plaintiff, except that he is the next of-kin to the immediate object of the testator’s bounty;- a circumstance much too slight to found an implication.' Where a testator omits to provide for an event, which he probably would have-done had the particular instance occurred to him, a court of justice cannot repaTr the defect by inserting' the necessary-clause. The authorities for this are collected in Roper on Legacies, Ch. vi. Sect. 7, where they may be. Consulted. Here the plaintiff would probably have been provided for, had the contingency which has since happened, been foreseen. But this is by no means certain. He evidently was not intended to take in every -event; else there would have been a positive limitation over, instead of subjecting the legacy to his father’s power. It seems, then, that as nothing was bequeathed to the father but what vested in him. by operation of law, an interest for life, superadded to the absolute' property, being a legal absurdity, the entire bequest fails of effect; so that the property in dispute having vested absolutely in the father, is subject to his debts in a course of administration. .
Rogers, J., concurred with Gibson, C. J.Judgment for the plaintiff.