#### VIOLET ALEXANDER vs. H. B. CUNNINGHAM & AL.

A. deñsed as follows: “ I will to my son M. W. A. all my estate, real and personal, for his use and benefit; and then to be divided off and distributed among his children, as he may think proper. That is to say, my land to be used by him, and the profits thereof to be to him; but the lands to be by him divided and distributed among his children as he may think proper. My negroes are to be used by him in any way he may think proper, and to be to his own use', for defraying their expenses for raising the younger ones, clothing, &e. but the said negroes and the increase thereof; to be by him divided among his children, as he may think proper. My notes and money (now about $30,000) to be by him kept on interest in good hands, and the interest accruing thereon to be to the use and benefit of the said M. W. A. and the amount of the said notes and money to be divided among his children, as he may deem proper. And I hereby appoint my son, M. W. A. the executor of this will.” Held, that under this will, M. W.- A. took' but an estate for life in the lands, with the power of dividing it, either in his ' lifetime or at his death, among his children, and that, until such appointment, the remainder in fee either vested in the children or deseended to the heirs of the testator, The widow of M. W, A. therefore, had no right to' dower in the land.

Where there is an express estate for life to one, and a power to him to appoint the estate among certain persons, the first taker gets but an estate for life.

Where the estate is not given expressly for life, but indefinitely to a devisee,-with power to appoint, at his discretion or as he pleases, among certain namedpersons, or to a certain class, the better opinion in England is, that the devise should be construed to be a devise for life, with a power to appoint the inheritance, unless the words of the will clearly negative such a construction.

AM the law is the same in this State, notwithstanding our act of 1784, Rev. Stat. cb. 122, sec. 10, which declares that devises of land are to be construed in fee, unless, by the express words of the will or by plain intendment, it may be held to be of a less estate; for the only purpose of that provision was to establish a rule between the heir and the devisee in respect to the beneficial interest of the latter.

Appeal from the Superior Court of Law of Mecklenburg county, at the Special Term in May, 1845, his Honor Judge Tearson presiding.

*431This is a petition for dower brought by the widow of Mo-sesW. Alexander against his-children and heirs at law. The only question m the case is with respect to a tract of land, of which Joseph McKnitt Alexander died seized in fee, and of which the petitioner alleges her late husband was, in his lifetime, and at his death in February of the present year, also seised in fee, under a devise thereof to him in and by the will of his father, the said Joseph McKnitt Alexander.

The petition states generally a seisin in fee of the husband, of several other tracts of land, described in the petition. With respect to the tract derived from Joseph MeKnitt Alexander, the petition states the title of the husband specially to be under the will of his father, and sets out the will itself. It was made in 1838, and is thus expressed: “ I do hereby will to my son Moses W, Alexander all my estate, real and personal, for his use and benefit; and then to be divided off and distributed amongst his children, as he may think proper. That is to say: my land to be used by him and the profits thereof to be to him; but the lands to be by him divided and distributed among his children, as he may think proper: My negroes are to be used by him in any way he may think proper, and to be to his own use for defraying their expenses for raising the young ones, clothing, &c. but the said negroes and the increase thereof to be by him divided among his children as he may think proper : My notes and money (now about $30,000) to be by him kept on interest in good hands, and the interest accruing thereon to be to the use and benefit of the said Moses W. Alexander, and the amount of said notes and money to be divided among his children, as he may deem proper. And I hereby appoint my son Moses W. Alexander the executor of this will.” Upon the death of the said testator, his son entered into the land devised, containing about 2000 acres, and resided thereon until his death; aud he died intestate and leaving children, and without having made any appointment among his children of the said land or any other part of his father’s estate. The petition insists, that, by virtue of the said devise, the said Moses W. became seized of the said last mentioned tract of land in *432fee, and that the petitioner, as his widow, is dowable thereof, we^ as sa^ ot^er lands; and it prays that her dower may be accordingly'set off and allotted to her in the said Several premises.

The facts stated in the petition were admitted by the defendants ; and, upon the hearing, the court decided, that the widow was not entitled to dower in the land devised in the will of Joseph McKnitt Alexander, and was entitled to dower in the other lands mentioned in the petition; and the petitioner appealed.

Badger for the plaintiff,

No counsel in this court for the defendants,

Ruffin, C. J.

The question in the case is, whether the plaintiff’s husband got the legal estate of the land in fee, or for life only, under his father’s will. It would, really, seem to be of very little consequence to the plaintiff, which way it is. For, if, upon the construction of the will, it should be held, that by the strict legal limitation he was the tenant in fee, he, immediately, took beneficially but an estate for life, and as to the remainder in fee he took the estate in trust to appoint and divide it among his children. Consequently, if the plaintiff could recover dower at law. it would answer her no purpose j for she would come in of the estate of the husband, and be, herself, a trustee for the children, and, therefore) equity would restrain her from enforcing her recovery by law. But we are of opinion, that the son took but an estate for life, with the power of dividing the Iqnd, 'and the other property either in his life-time or at his death, among his children, as purchasers from the testator, and that, until such app,ointment, the remainder in fee either vested in the children or descended to the heirs of the testator. It is very clear, that yrhen there is an express estate for life to one and a power tp him to appoint the estate among certain persons, the first taker gets but an estate for life. Indeed, a devise to one for life expressly, with a remainder to such persons, generally, as he shall appoint, does not confer on the former the absolute pro*433perty, though he may get it by "exercising his power. Barford v. Street, 16 Ves. 135. Of course the same result more clearly follows, when the power is to appoint to or among particular persons. When, however, the estate is not given expressly for life, but indefinitely to a devisee, with’power to appoint, in his discretion, or as he pleases, among certain named persons, or a certain class, it is not equally clear, at least upon authority, what estate the devisee takes: whether a fee simple conditional, or the fee upon trust to make the appointment, or an estate for life with power to appoint the fee. Anciently, when the jurisdiction in equity was not so fully established and understood as now, these limitations were treated as conditions, for the sake of the remedy by the entry of the heir for failing to appoint or appointing contrary to the will.

But, at this day, that view of a devise would, probably, be seldom taken, as the remedy is much more convenient in equity, by considering the fee absolute, and the direction to appoint a trust, rather than a condition at common law. Between the alternative of a life estate with power to appoint the inheritance, or that of a fee simple in the devisee upon trust to appoint, the authorities and the reason of the thing are favorable to the former. Such was the decision ultimately of the case of Daniel v. Ubley, 1 Jones Rep. 137. Noy’s Rep. 80; and Mr. Sugden, in his Treatise on Powers 121, says, “the better opinion certainly is, the devise is for life, with a power to appoint the inheritance, unless the words of the will clearly negative such a construction.'” But it is said, that the rule is different in our law, because, by the act of 1784, Rev. St. c. 122, s. 10, devises of land are to be construed to be in fee, unless by the express words of the will or by plain intendment they may be held to be of a less estate. But, we think the purpose of that provision is to establish a rule between the heir and the devisee, in respect to the beneficial benefit of the latter. Undoubtedly, the son took a life estate, at most, to his own use; for the will is express, that the land «hall be divided among his children, with only the qualification, that such division shall be in such mode, and shares, as *434the devisee may choose. Then why should the son have a Iarger legal estate than for his own life 1 What interest would it subserve ? None whatever; for the appointees would get the same in either instance, whether the appointment operate on the inheritance vested in the son as devisee, or in the testator’s heir at law, or on the inheritance limited in the will to the son’s children, as a remainder after the previous life estate of the son. There are therefore, the same reasons, drawn from convenience and the presumed intention of the testator, in our law as in that of England, upon a provision of this kind, that the devisee should not have a greater legal estate than one commensurate with his beneficial, ownership, namely, for his own life. This conclusion is fortified, too, by the circumstance that the language of the will is not, that the son may dispose of the residue of the estates, real or personal, after the termination of his own enjoyment, but merely that he shall “divide and distribute1'1 them among his children. If that be so, it is not material that we should determine in the present case whether, the inheritance is, as a reversion, in the testator’s heirs at law, or, as a remainder, in the children of the devisee and son. In either case, the fee was never in the plaintiff’s husband ; at-least, it does not so appear upon these pleadings.

Moses W. Alexander is called in the will the testator’s son, it is true ; but he is not stated to be his heir or one of his heirs, nor his son born in lawful wedlock, whereby he would appear to be his heir. On the contrary, the petition, by implication, excludes any such inference, by specially setting out the will and claiming the fee to be in Moses W. Alexander by virtue of the devise, and that only. As we think he took .only a life estate by the will, it follows the petitioner is not entitled to dower on this land, even at law; and, therefore, that the judgment must be affirmed. But as was mentioned p,t first, if our opinion were otherwise and the petitioner could recover at law, it would be of no value to her; as equity would certainly not allow the gifts to the children to fail, but would supply the want of the execution of the power by *435their father, and restrain the' present plaintiff from insisting on her right to dower at law.

There was not more an intention by the testator, that the land should be absolutely the property of his son, than that the money and bonds should be, and the plaintff might as well claim a distributive share in the personalty, as the estate of her husband, as to claim dower in the land.

Judgment affirmed with costs in this court; and this will be certified to the Superior Court, that further proceedings may be had in allotting the dower, recovered by the plaintiff in the other lands.

Per Curiam, Ordered accordingly.