The opinion of the Court was delivered by
Haskell, A. J.There can be no question as to the quantity of the estate held by the widow Payne in the property which is the subject of this litigation. The principles announced in the case of Pulliam vs. Boyd, (2 Strob. Eq., 134,) and the authorities there cited, apply to the present case, and decide that the widow Payne had, by the will of her husband, an estate for life in the land, with a general power of appointment over the proceeds of the sale of a moiety of the land, which was directed by the will to be sold after her death.
It is argued by the appellants that this power could only be executed by will; that it was executed by a will drawn by the wido.w Payne in 1857 ; that if it could, however, be executed by deed, the deed of marriage settlement, which purports to have executed the power, has failed to execute, and is void as to the power, because it does not recite the power or describe the property, or in any wise clearly indicate an intention to execute the power. It is further contended that the power conferred upon the widow by the will was a power to dispose, not of a moiety of the land, but of the proceeds of the sale of that part of the land; and that the deed of marriage settlement with Boyd, the plaintiff, if it disposes at all, disposes not of the fund to arise from the land, but of the land itself, and is, therefore, not an execution of the power.
These points will be considered in their order.
There is no provision, by direct words, in the will of John Payne that the power of appointment thereby created should be executed only by will, nor, we think, can such intention be deduced from the language used. The words are “to dispose of as she may please at her death.” The expression “as she may please” naturally refers to the object of her bounty, and not to the time at which she is to make the disposition; while “at her death” relates not to the time at which the power is to be executed, but to the time at which the disposition is to take effect. In the case of Aaron vs. Beck, (9 Rich. Eq., 411,) the language of the power is: “the half of which my wife shall die possessed to be disposed of at her death as she may think proper.”
And she’“made a deed,” whereby, after reserving to herself “the enjoyment for life, she appointed and tranferred the aforesaid ” property in trust for the use, for life, of her married daughter, &c.; *52and, while the point was not decided, it was not even questioned that the power was duly executed by deed.
By transposing the words the meaning is not changed, but the grammatical order is made more apparent. '“To dispose, at her death, as she may please,” is the same as “to dispose as she may please at her death,” and is, in meaning and order, identical with the phraseology in Aaron vs. Beck, “to be disposed of at her death as .she may think proper.” The words “at her death” relate, of necessity, not to the time of the exercise of the power, but to the time at which the execution takes effect, for it is only then that the “ disposition” of the property takes place. The testator’s principal object seems to have been to keep for his wife the enjoyment of the property during her life. The ultimate disposition he left to her, to go into effect at her death. The deed is not inconsistent with this view, for, although made in presentí, it can only take effect in futuro. The words “as she may please, at her death,” are considered as not restricting the mode or time of the exercise of the power. And “if a power be givén generally, without any restrictions as to the nature of the instrument by which it is to be executed, * * * it may, in such case, be executed by deed or by will.” — 4 Cruise on Real Property, 253.
The power may be executed by deed, but has it been executed by the deed of marriage settlement? Very brief extracts of the deed are all that the Court has to guide it, but it is to be presumed that all that is of importance has been presented.
Sir William Grant said it was always a question of intention whether the party meant to exercise the power or not. — 1 Sugden on Powers, *372 ; 8 Ves. Jr., 616.
“All that is necessary is that the intention to execute the power should clearly appear in writing.” — -Story Eq. Jur., § 172.
“An act done not strictly according to the terms of the power, but consistent with its intent, may be upheld in equity.” — Ibid, §172.
“An instrument may operate asa revocation and appointment without any recital or mention of the power or any declaration that such instrument was intended as an execution of the power; for if the act done be of such a nature that it can have no-operation unless by virtue of the power, and thereby give validity to the instrument upon the principle or rule of law that quando non valet quod ago, ut ago, valeat quantum valere protest.” — 4 Cruise on Real Prop., 257.
*53If the donee of a power either refer to the deed out of which the power arose or describe the property over which he has a power of disposition, it is sufficient to prove the intention. — Ibid, 259; Robert vs. Morgan, 1 Atk., 441; Sugden on Pow., *357-367.
The words which confer the power upon the widow Payne are contained in a will which was thus described in a previous case between the widow and some of the same parties, (12 Rich. Eq., 494) : “ The testator was an uneducated planter, little acquainted with legal or commercial terms, and he employed a like person to draw his will.” The opinion in the same case concludes with an order that the Commissioner, among other things, report, “ distinguishing between the various bequests made to the complainant, Lucinda,— some absolutely, some for life with power of disposition in the whole, and some for life with power of disposition in part.”
The obscurity of the unprofessional language of the will must be considered in connection with the terms used in the deed of marriage settlement, which alludes to the will as the source from which the rights disposed of by the deed are derived. There certainly had been no adjudication upon the will at the time the widow Lucinda drew her will (1857) or at the time she executed her marriage settlement, (1858,) and it may have been uncertain in her mind exactly what was the character of her estate or interest in these lands.
In the deed of settlement she recites, among other property in her possession, “ a tract of land in Newberry and Laurens Districts containing eighteen hundred acres,” “ which said tract she became possessed of by virtue of the last will and testament of her late husband, John W. Payne, deceased, being thereby entitled to a life estate in the whole land and to an absolute estate in one-half and the following slaves.”
All this she conveys to C. B. Griffin in trust. The execution of the power, if at all, is in the following words : “And at the death of the said Lucinda Payne, the tract of land, as far as she may have any legal interest, to be divested of all trust and vested in fee simple in the said William B. Boyd, her intended husband.” Whether the “tract of land” as used in the last clause means the “ whole land ” or the half in which she says she has an absolute estate is not stated, and we have not the entire deed from which to derive a conclusion; but as she had so definitely limited her estate to the whole to life, the inference is that she concludes in this clause *54to the “one-half” which she had mentioned above. But this, perhaps, is not material.
It is possible that Lucinda Payne had a misconception of the character of her estate in that moiety. She may have thought or been advised, as so eminent a Chancellor had decreed in Pulliam vs. Byrd, that a grant to her for life, with a power to her to dispose of one-half of' it at her pleasure beyond her life, came within all the definitions of an absolute title. This opinion, however, had been corrected by the Court of‘Appeals previous to the time the deed was executed, and it must be observed that she uses this expression, “absolute estate.” In the recital to the conveyance to the trustee, the terms used in the grant do not appear; it is merely said “she conveys her whole estate of land.” It seems that the words “ absolute estate” are used in the recital more to draw a distinction between the interests which she has in the whole and a separate interest in a moiety than to define her legal title to that moiety. But if she did mistake the character of her right to or over that moiety, that is not material, unless it further appears that she set up that title in defiance of the wish expressed in her husband’s will and conveyed the property to Boyd by virtue of her title absolute and not under the power. It can hardly be said that this appears from the words used. She recites the will and refers to it as the source whence she derives any right she may have in the property. She describes the property and ,disposes of it by the following words : “And at the death of the said Lucinda Payne, the tract of land, as far as she may have any legal interest, to be divested of all trust and vested in fee simple in the said William B. Boyd.” She thus refers to the will which contains the powers; she describes the property, and intended either to execute the power or to recite it and ignore it. If she meant the latter, we think the words of conveyance would have been more positive and absolute. The words descriptive of her right are “ the land as far as she may have any legal interest.” This cannot refer to the amount of land, whether the whole or the half, for of that there would be no doubt or question ; it must refer to the character of her interest in that half. If that be the meaning of the words, and we think it is, her intention was to convey to Boyd, by any right or power that in her was, the land or whatever interest in the land that was at her disposal. This view is confirmed by the fact that in the will of 1857, which it is claimed was the execution of the power, the words by which she *55seeks to execute it are by leaving “ half the interest ” she had “ in the lands of her late husband.” “ Interest in land ” is not different in such a case from “ land as far as one may have legal interest ” in it. Either expression would be enough to execute a power of appointment either of the land or of the proceeds to arise from the sale of the land, provided the words could not apply to any other than the property intended by the donor.
And this leads us to the last point — that the disposition of the land or “ interest in the land ” is not an execution of the power to dispose, where a sale of the land is also ordered by the donor; that appointor was bound to indicate or name the fund, and that alo»tí could she appoint.
In the case of Standen vs. Standen, (2 Ves., Jr., 589,) fully discussed in Sugden on Powers, *378, the circumstances are not very dissimilar. The husband, by will, directed his estate to be sold, and gave the money and his other personal estate to wife for life, with power of appointment as to one moiety. The land was not sold. The widow, by will, “gave all the residue of her estate and effects, whether real or personal, which she should be possessed of, interested in or entitled to at the time of her decease to her friend, J. H.:” Meld, That the will was an execution of the power, from the fact that by the will she “gives all her estate and effects” — that this is of necessity included. But, in addition, held to be an execution, because the intention was manifest, from the fact that she had no other real estate. The present case is stronger than Standen vs. Standen, because the property is specified and described.
The land in each case was ordered to be converted into money, but in each it had not been converted previous to the execution of the power, and the land was appointed.
In Sugden, *398, it is said by the Judge, in another case: “The case of Standen vs. Standen had established that with regard to real estate the Court may examine whether the circumstances of the testator’s property are such as to give effect to the will; and if this will had given an unequivocal devise of realty, the Court must, in order to give operation to an instrument which would otherwise be inoperative, have reverted to the fund the subject of the power.” The widow Payne had no other real estate capable of her disposition under the will, to which she refers her right, and the deed would be inoperative if it were not applied to her “interest” in this land. We consider the gift or appointment by which she directs that the *56“land, as far as sbe may have any legal interest,” sufficiently describes the property and applies to the land or the proceeds of the sale of the land when sold, and, as was intimated above, regard the adoption of the sort of double form to have been for the purpose of vesting the property in Boyd, under the title, or by the power, whichever it might be ascertained she had. And equity will regard the property as land or as money, as may be necessary to carry out the purposes of the donor. It would be strange if the execution of a power appointing to land, which it is ordered shall subsequently be sold, should be defeated because the appointor had, after fully describing the property, and referring to the power, should call it “land” instead of “the proceeds to arise from the sale of the land.”
The judgment of the Court below is affirmed. Motion dismissed.
Willard, C. J., and Mclver, A. J., concurred.