dissenting.
I respectfully disagree with the Majority Opinion. For the following reasons I believe that Mrs. Colwell should not have succeeded directly to any proceeds from the sale of the condominium.
A life estate is a property interest for a term, the duration of which is limited to the life of the party holding it or some other designated person. Black’s Law Dictionary (6th ed.1990). Kenneth Hewitt bequeathed to Mrs. Colwell a life estate in his condominium, provided that she timely notified his corporate executor (Mellon Bank) that she chose to occupy it, and provided that she “keep such apartment adequately insured, maintained and repaired and ... pay all real estate taxes, water and sewer rents, assessments, carrying charges and similar charges thereon.” He also gave to his executors, Mellon Bank and Helen Colwell, the power to, inter alia, “sell ... any and all property, real, personal or mixed, at such times and for such prices and upon such terms and conditions as my Executors may determine.” The general power to sell, however, is limited concerning the condominium to circumstances where Colwell as beneficiary renounces her life interest before taking possession, defaults on the upkeep, or dies after taking possession. I believe the instant confusion over her rights in the proceeds from the condominium arises because Mrs. Colwell is both a beneficiary and an executor of Hewitt’s estate.
The holder of a life estate, unless otherwise constrained, may dispose of her interest by leasing or selling the property. But she may sell or lease only the interest she has — which is limited by the duration of the designated life. Thus, if Mrs. Colwell, in her capacity as beneficiary, chose to sell her interest in the condominium, the purchaser’s interest in the property would be a life estate for the duration of Mrs. Colwell’s life and would expire on Mrs. Colwell’s death. At that point, the entire condominium would, pursuant to Hewitt’s testamentary directive, revert to Hewitt’s residuary es*501tate and would “be sold and the net proceeds distributed as part of [his] residuary estate as set forth in Article III.”1
Kenneth Hewitt’s testamentary wishes were not ambiguous. It was clear that he intended Mrs. Colwell the beneficiary to be able to live in the condominium if she so chose. She was intended to use the property, but it is also eminently clear that there was never a provision giving her the right to share directly in the proceeds from the sale of the property.
Pursuant to Hewitt’s wishes, there are only three scenarios under which an interest in the condominium would be sold during Colwell’s lifetime. Two are described above, where Colwell the beneficiary, herself, either a) sells her life interest to a speculative buyer or b) defaults on the required maintenance, thereby curtailing her life estate. The more anticipated scenario is where Colwell the beneficiary renounces her right to the life estate by not declaring to Mellon Bank that she intends to occupy the property, and Mellon and Executor Colwell, pursuant to their powers and Hewitt’s instructions, sell the entire condominium. The proceeds would fall to Hewitt’s residuary estate and ultimately to the unitrust. The unitrust already provided Colwell the beneficiary with an annual income of six percent of the total value of the unitrust. Thus, on the sale of the condominium, her six percent would be an enhanced amount because the trust would be larger. Therefore, Colwell the beneficiary was permitted to “profit” *502from not occupying the condominium in only one of two ways. She could seek to sell her life interest if she could find a willing buyer for an interest with an unknown date of extinction or, upon an outright sale of the condominium, she could realize additional income from the enlarged unitrust.
I believe that what serves to confuse the issue in this case is that Mrs. Colwell was designated not only the beneficiary of the life estate but also co-executrix (along with Mellon Bank) of the estate. Had the two positions held by Mrs. Colwell been held, instead, by two different individuals (“Beneficiary” and “Executor”), I believe the testator’s intent would not have been so misinterpreted.2 Specifically, the grantee of the life estate (Beneficiary) would have been required to give notice to Executor/Mellon Bank of her intent to occupy the condominium. Beneficiary would then be the life tenant. Had Beneficiary subsequently decided to sell her interest, she could have sold only what she had — a life estate. Beneficiary would be entitled to whatever price she could get for such a speculative property interest. Beneficiary would not be entitled to go to Executor and have Executor sell the property and give Beneficiary the monetary value of her “life share.” Executor’s instructions were at all times that when the condominium was sold, the proceeds would all fall to the residuary estate and then to the unitrust.
In the alternative, had Beneficiary chosen to decline the life estate, the condominium would have been sold by Mellon and Executor for full value, all of which would have passed to the residuary estate. In this instance, the proceeds would have *503been put into Hewitt’s charitable remainder unitrust and Beneficiary would have drawn six percent of the market value of that trust each year for the rest of her life, any remaining money being distributed to Hewitt’s charities after Beneficiary died.
Under either scenario, Mellon Bank and Executor would have properly fulfilled Hewitt’s testamentary intent. It is only because Executor and Beneficiary happen to be the same person that permission for Beneficiary to partake outright in the proceeds from Executor’s sale of the condominium was effected. Had Executor and Beneficiary dealt at arm’s length, Beneficiary would never have directly realized a share of the proceeds, for that was not Hewitt’s intent.
Hewitt intended her to receive $300,000 plus six percent of the unitrust for life. Her interest in the condominium was to be realized either as a life estate for her use or, should she decline to “occupy” it, her interest in the condominium would have been realized when six percent of the unitrust, augmented by the sale proceeds, yielded more income to her each year.
Both the lower courts and the Majority improperly allow Colwell access to and use of the lump sum life estate share of the proceeds, $76,199.55.
Under the scenario approved by the Majority, Mrs. Colwell receives $300,000 plus the actuarial value of her share of the proceeds of the condominium plus six percent per year of the grander unitrust for life. Thus, Colwell gets outright control over the lump sum $76,199.55. This is not what Hewitt’s testamentary wishes express and, had Executor been anyone other than Beneficiary, I believe it would not have been permitted.
Similarly, placing the $76,199.55 in proceeds in a separate trust as prescribed by the lower courts does not redress the departure from Hewitt’s wishes. Under the lower courts’ scenario, Colwell wears yet a third hat as “Trustee” of this separate trust as well as being its income beneficiary. As Trustee, she has the power and authority to deplete the trust for her own benefit during her lifetime, thereby enabling her *504to succeed to more than Hewitt intended since she is not restricted to an income of six percent of its annual value.
I therefore agree with Judge Johnson’s dissent to the Superior Court opinion. Pursuant to Hewitt’s testamentary-intent, Colwell improperly- succeeded to the entire $76,199.55. Her only interest in the proceeds from the sale of the property is the six percent income she will draw from the unitrust where the entire proceeds properly belong.
Justice NEWMAN joins the dissenting opinion.. The Majority Opinion seems to have determined that, since Colwell as beneficiary has the power to alienate her life estate and Colwell as executor has the power to sell the entire property in fee, the two powers combined means that the entire property may be sold with Colwell the beneficiary still entitled to her share of the proceeds, the life estate. This is simply not true. Colwell the beneficiary may alienate only her life estate. When she dies, the buyer’s rights completely extinguish and the entire property goes to the remaindermen. Similarly, Colwell the executor has the power to sell the entire property, but so long as Colwell the beneficiary has a life interest, the property may only be sold subject to the life interest. In other words, the buyer in fee owns nothing until Colwell the beneficiary dies. Only if Colwell the beneficiary gives up her life estate may the executor sell the property free of the life interest. If Colwell the beneficiary does give up her life interest, she also gives up her right to the proceeds. Neither party may override the rights and responsibilities of the other, nor may they, jointly, agree to override the testator’s intent.
. I pose this hypothetical merely to illustrate the difficulty the Beneficiary would have effecting the same result arrived at by the Majority had she dealt at arm’s length with an independent Executor. My dissent, however, does not, as the Majority’s footnote 5 suggests, rest on this paradigm, but on the notion that the Executor abrogated her fiduciary duties when she circumvented the testator’s intent. Portioning out the monetary value of the life estate for the life tenant's use was never expressed as part of Hewitt’s testamentary intent. In response to the Majority’s footnote 5 hypothetical, it would therefore have been a breach of any Executor’s duty to agree to "merge [the] remainder interest with the ... life estate”; the rule of law which prevents it, as Justice Castille’s dissent properly notes, is fidelity to the testator’s intent.