dissenting. [Omitting the statement.] The appeal therefore involves, in the first instance, the single question, whether his honor erred in decreeing in favor of the respondent.
The following legal propositions will be conceded, no doubt: First. That the disposition by will of real property located in a State (South Carolina), must be made (under the doctrine of rei sitae) according to the laws of said State (South Carolina), and of personal property according to the laws of the domicile of the owner. Story Confl. Laws, § 474; 1 Redf. Wills, *398. Second. That where a testator devises and bequeaths property to one for life, with power on the part of the life tenant to appoint one to the remainder, if the power is properly executed, the appointee will take by virtue of the will of the original testator, and not by the execution of the power. In other words, the executed power becomes a part of the will of the original testator, as much so as if it had been originally incorporated therein. Pulliam v. Byrd, 2 Strob. Eq., 137; Robinson v. Hardcastle, 2 T. R., 252; 3 Am. Eng. Encyclo. Law, 633; Tatnall v. Hankey, 2 Moore P. C., 342; Thompson v. Perry, 2 Hill Ch., *214; 29 A. D., 68.
It follows from these propositions that if Mrs. Blount legally executed the power given her by Mrs. Harris, Mr. Blount, her husband, became a beneficiary of Mrs. Harris precisely as if Mrs. Harris had named him in her will as devisee and legatee of the property in question, in which event both the law of the situs *553and of the domicile would be complied with, as there is no doubt that the will of Mrs. Harris was executed according to the laws of this State, and that the real estate and the personalty were both hers, and both within the State.
The turning point of the case, then, is, did Mrs.'Blount legally execute the power of appointment given her ? If so, then the respondent takes under the will of Mrs. Harris, which, as we have said, meets the demands of both the situs and of the domicile — lex rei sitce, lex clomieilii. Now, Mrs. Blount was invested with power, not to dispose, but to appoint “by her last will and testament duly executed.” Did she duly execute a last will and testament in which the respondent was the appointee ? There is no doubt but that she executed a paper in North Carolina, where she then lived and where she died, which has been admitted to probate in that State and established there as her last will and testament, and in which her husband, the respondent, was appointed beneficiary of the property in question. This will, it is true, had not been attested by three witnesses in the presence of each other, one of the three having failed to attest in the presence of the other two, and was not, therefore, in compliance with the laws of this State, which require three witnesses to sign in the presence of each other ; and because of this, fact it is urged that the power was not executed in accordance with the will of Mrs. Harris.
Did Mrs. Harris require the power to be executed by a will made according to the laws of this State ? If so, then his honor was in error, as his holding would be contrary to the intention of Mrs. Harris, which must govern. The intention of the author of any paper, whether it be a will or any other instrument, must be reached by the language used. And the first and most important rule in endeavoring to reach the intent through the language is to give to the words employed their usual and ordinary signification. The words demanding construction here are duly executed, or rather the word duly, as there is no ambiguity about the word executed. What did Mrs. Harris mean by that qualifying word duly ? The property was hers, and she had the right to dispose of it as she saw proper. She had the right to give the whole of it to her daughter, or she had the right to dispose of it *554as she did, to an appointee, to be selected by her daughter, and she had the right to require the appointment to be made in any manner she chose. And the courts should hold that the manner of the appointment directed should be complied with. Otherwise the intent will be defeated, and the will would become the will of the court, and not that of the testatrix. Now, what is the usual and ordinary meaning of the word duly ? According to lexicographers it means, “in a fit and becoming manner ; regularly ; properly.” Such are its ordinary meanings. They do not in terms include any special legal form. But inasmuch as a last will and testament can nowhere be executed, except with some recognized legal form, this word, when qualifying the execution of such a paper, must necessarily include the idea of. legal requirements.
Looking at the language, then, of Mrs. Harris, as used in her will in reference to the power given to her daughter, we conclude, first, that she intended her daughter to execute this power by a last will and testament, executed regularly and properly, that is, free from undue influence, fraud, and imposition, in accordance with law, and in proper legal form. Did Mrs. Blount execute such a paper, and as thus required ? The paper relied upon by the respondent has been declared by a Probate Court in North Carolina, where she had lived and where she died, to be the last will and testament of Mrs. Blount. Also in this State. It cannot be denied, then, that it was duly executed, including freedom from undue influence'and fraud, and with the presence of all necessary legal forms, because the probate in the court of North Carolina having jurisdiction of such matters, of necessity embraces all this. Reaching this result, we conclude, second, that in so far as our judgment is to rest upon the words of Mrs. Harris’s will and her intent, developed through them by the application of the usual rules of construction, that Mrs Blount properly exercised the power with which she was invested by her last will and testament now before the court.
But it is earnestly urged that Mrs. Harris did not intend this. On the contrary, that she intended that the power given her daughter should be exercised by a last will and testament, executed according to the laws of South Carolina, and in no other *555way. Such a conclusion not appearing in the words of the will, can it be reached by a consideration of the circumstances by which she was surrounded at the time of her will ? Where an intent is doubtful, it is sometimes proper to resort to surrounding facts and circumstances, in aid of the legal and ordinary rules of construction. Assuming the intent here to be doubtful, let the aid suggested be invoked. What were the surrounding circumstances ? Mrs. Harris, during her life, was a citizen of South Carolina. She had just executed her own will in accordance with the laws of her State. She must be supposed to have known that the legal form of such papers here required three witnesses attesting in the presence of each other.
These facts, it is true, are somewhat significant. But, on the other hand, she knew that her daughter was a married woman; that her husband’s residence was in North Carolina; that her daughter had no close relations here, and that after her own death she would be left alone; that under these circumstances she would in all probability go to the home of her husband, which, being the domicile of her husband, was her domicile (Warrender v. Warrender, 2 Cl. & F., 488), there to reside permanently, and there, when she came to die, to make and leave her will. These facts are equally as significant as those above. And when it is remembered that no doubt it was the substance of Mrs. Harris’s wish and will that her daughter should direct the disposition of the property given to her for life when she was done with it, wherever she might be; and when it is further remembered that she did not state in terms that the will of her daughter should be made under the laws of this State, but only that it should be by will duly executed, the circumstances last mentioned above seem to strongly support the conclusion reached by the analysis made of the language of her will, to wit: that her daughter’s desire upon this subject, expressed in a will duly executed and established as her will in any State where she might reside, should control.
But are there any authorities or controlling' decisions upon this subject? If so, where they lead we must follow. We have found none in our own State, nor have the able counsel engaged in the case referred to any in our reports where this precise question *556was raised. The English cases are not entirely clear on the point, but so far as we have examined we think their weight is in support of the conclusion we have reached above. In Brack v. Johnston (5 Wils. Sh., 61), a Jamaica will, executed under a power reserved to be exercised by “my will, or by any separate writing or letter to that effect,” passed property in Scotland. It is true, the power reserved included any separate writing or letter, but it also included a will, and a will was executed under the laws of Jamaica, and it was held sufficient.
In D'Huart v. Harkness (34 Beav., 324), personal property was given by an English will to trustees, resident in England, with a power in the Baroness D’Huart to appoint, by her last will and testament in writing duly executed. The baroness domiciled in France, made her will in France, which was valid by the law there, but not by the English law. Lord Romilly held: “That a power to appoint by will simply may be executed by any will which according to the law of this country is valid, though it does not follow the forms of the statute.” It is urged, however, that this decision was made after the passage of Lord Kingsdown’s act, which provided, that as to personal property a will by a British subject, if valid where made, should be valid in England, and although Lord Kingsdown’s act had not gone into effect in England, yet that it influenced the opinion of the court. Lord Romilly does not allude to this act.
In Pennsylvania, the noted case known as Bingham’s Appeal (64 Pa. St.. 346), seems to point.in the other direction, though the precise question is not discussed. In that case, William Bingham, a citizen of Pa., bequeathed certain personal property to trustees in Pennsylvania with power to Alexander Bingham to appoint by his last will and testament. Alexander died, domiciled in England, possessed of an estate of his own, which he bequeathed to certain parties, not mentioning the estate over which he had power to appoint. Under the English law such a will would pass both his own estate, and the estate covered by the power, but in Pennsylvania it would not. The question before the Pennsylvania court was, which law should govern. The court held that the law in Pennsylvania controlled. That case, however, did not involve the question raised here. Here the *557question is one of intention on the part of Mrs. Harris as to the form in which the power should be executed. She had the right to give her daughter a power to make an appointment by her will duly executed in any State, and the question is, did she grant such a power?
In the Bingham appeal, .the question was one of law, as to the proper construction of the alleged executed power, to wit, whether the will as executed by Alexander Bingham, not mentioning the estate over, which he had power, carried said estate. Did the will as executed without reference to the power furnish such intent ? It did not in Pennsylvania, but it did in England, and the point was, which should control? The question there was the intent of the donee of the power, not that of the donor. Here it is the intent of the donor; that of the donee is plain and evident. There, it being the law in Pennsylvania that no power of the kind could be executed except by reference to the power, this determined the intent of the donee; but here there is no law holding that such power cannot be executed except by a will executed under the laws of this State. The donor may permit any form, to wit, a will executed elsewhere, and the question is, has she done so?
In Massachusetts, in the case of Sewall v. Wilmer (132 Mass., 131), Chief Justice Gray said: “As to the form of executing the power, it would seem that a will executed in the form authorized by the law of either State would be sufficient.” And he cites Willock v. Ouchterlony, 3 Paton, 659; Brack v. Johnston, 5 Wils. & Sh., 61, supra; and D’Huart v. Harkness, 34 Beav., 324, supra.
It is said that these cases all involved personal property alone. That is perhaps true, but the character of the property is not before us; it is the principle applicable to cases like this before the court, that we are after. In these cases the lex domicilii could not have controlled the question, because the personal property involved did not belong to the party executing the powers, and therefore the law of his domicile could have had no application.
It is urged that real estate cannot pass, unless the forms of law permitting it to pass have been strictly complied with, and that as to wills the statute requires at least three wetnesses. This *558would be conclusive if respondent’s claim depended upon the will of his wife passing to him title to the real estate in contest, but this is not the fact. He claims under the will of Mrs. Harris, which, it is admitted, was executed with all due legal formality, three witnesses, and all other requisites.
So that it appears to us at last, that although no direct and positive decision on the precise question before us has been found, yet that distinguished and learned judges and courts, both of this country and England, have indicated an opinion in accordance with our conclusion above. And in the absence of all controlling adverse authority, wc feel constrained to affirm the judgment below of his honor, Judge Wallace.
And we are the better satisfied with this result,' because we feel assured, that the purpose of Mrs. Hands was to give her daughter complete control. Had she desired to have Mrs. Blount to execute a will under the laws of this State, a few words more, in her own will, would have conveyed this idea clearly and without doubt, to wit, after “duly executed” to have inserted “according to the laws of this State.” The will of Mrs. Harris seems to have been carefully drawn, and if she intended, as suggested, the failure to insert the words above, was a strange omission. On the contrary, had she intended to leave Mrs. Blount in complete control with power not to dispose of the property, but to nominate an appointee thereto by her last will, under Mrs. Harris’s will, wherever she might live and die, what more appropriate words could she have used than those she did use ?
Such evidently being the wish of Mrs. Harris, and the property being hers, with absolute control over it, her intent should be carried out, if by a proper and reasonable construction of the papers this can be done; or, at least, no strained construction should be resorted to, the effect of which is to defeat the intent.
For the reasons given above, I am unable to concur in the opinion of the majority.
Judgment reversed.
A petition was filed for the rehearing of this case, but it was refused, May 12, 1888, per curiam, “no fact or principle material to the issue having been overlooked.”