delivered the opinion of the court:
The appellants insist the court below should have granted the relief prayed in the bill, as amended,—first, on the ground that the grantor, Mary Clark, under the provisions of her husband’s will, had no authority to make the conveyance in question; second, that even if she had such authority, her act in this instance did not come within the scope of her authority; and third, that the- conveyance was procured by the fraud and undue influence of the grantee. The appellee contends that the question of the grantor’s authority to make the deed is the only one properly before this court for review.
It will be seen by the terms of the will, after the payment of testator’s just debts Mary Clark was given the property of testator, “both real and personal, for and during her natural life;” then, after her death, whatever remained unexpended was to be applied to the payment of legacies to certain of his children, and after the payment of the legacies the remainder was to be divided equally among the complainant John W. Clark and others named.
It is said by appellee that the last clause of the will ■ appointing his mother executrix, and empowering her to sell and convey “any and all” of testator’s real estate andpersonal property, “using her own discretion,” authorized her to make the deed in question, and it seems his contention is that an absolute power of disposition was coupled with the life estate of the wife. We do not think this proposition can be maintained. It is clear that by the first clause the wife was given only an estate for life. By the last clause she was made executrix of the will and given certain powers, but her power of sale under that appointment was that of an executrix, and was no greater than would have been the power of any other person who might have been named as executrix. Had the testator intended her to have more than a life estate, he would have made it apparent in the clause limiting her enjoyment of the estate. The power of sale as an executrix was a wise provision. The will, upon its face, shows that the testator contemplated the payment of his just debts, and this might necessitate the sale of part or all of his property.
Having only the power to sell as an executrix, the inquiry then is, was the deed of Mary Clark such a sale as came within the scope of her authority? The consideration, as stated in the deed, was §100 “and the further consideration of services rendered and to be rendered by James S. Clark.” Testimony is introduced to show that the services contemplated by the language thus used were the care of the grantor as long as she should live. This, we think, was an act unauthorized by her power. The only sale which she could have properly made, in her capacity as executrix, was one for money, and in the usual course of administration of her husband’s estate.
This case, in principle, is not unlike that of Griffin v. Griffin, 141 Ill. 373. There the testator devised to his wife real estate for and during her natural life, “with the same right to sell the same for her support and maintenance that I would have if living,” limiting the remainder to his children. An attempt was made by the wife to sell it to a son in fee, in consideration that he would take care of her the remainder of her life. It was there held •that the sale, even for her support and maintenance, must be a sale for a stipulated sum in money. We said (p. 388): “This was not a good execution of the power to sell the land for the support and maintenance of Mary Griffin. The sale and conveyance were a fraud on the rights of the devisees of the remainder in fee. It was a perversion of the power given by the will, and not a dona fide exercise of that power. It was not within the reasonable contemplation of the power that the land should be sold thereunder for the purpose of paying the debts of the life tenant incurred for purposes other than her support and maintenance. Nor was it within its contemplation that the land should be sold otherwise than in the usual and customary manner, for a stipulated sum in money and with some reference to its value. That which John Griffin authorized his wife to do was ‘to sell’ his real estate,—i. e., dispose of it for an equivalent in money. It. would hardly be contended that if Mary Griffin, immediately upon the death of her husband, had conveyed all the lands, under the power, to a person who agreed to support and maintain her during life and bury her when dead, it would be a valid conveyance within the purview of the power; and it does not help the matter that she refrained from so doing until she was over ninety years of age and stood with one foot in the grave. * * * There was no error in setting aside and canceling the deed to him,” the grantee. The principle there announced applies with greater force to the case at bar, the widow in this instance being given no right to sell for her support and maintenance.
In this view of the case it is unnecessary to consider whether the issue of undue influence was properly raised by the bill and answer.
The conveyance, for want of power in the grantor, is void, and the circuit court erred in not setting it aside for that reason. Its decree will accordingly be reversed and the cause will be remanded to the circuit court, with directions to enter a decree in conformity with the views here expressed. „ 7 , 7 7 r Reversed and remanded.