Opinion of the Court, per DENIO, Ch. J. give by a will not referring to the power, all his real and personal estates, the estate, subjected to the power, will pass. (Sugden on Powers, ch. 6, § 7, pp. 33, 34.) The reason is, that by embracing real estate in the disposition, the testator must have intended to dispose of that species of property, and having none upon which the will could operate, except that affected by the power, it is clear that it was that which he intended to dispose of. Besides these instances in which the intention was clearly the governing principle in the decision, we find the judges uniformly declaring that it is unnecessary to refer to the power if an intention to execute it plainly appears. Thus, in the early case of Probert v. Morgan (1 Atk., 440), we find Lord Chancellor HARDWICKE declaring, that "if a man have power to charge an estate, it is not necessary, in the execution of it, that he should refer to the deed out of which the power arises; for in a court of equity it is enough that his intent appears; and if in the execution he sufficiently describes the estate he has power to charge, the estate is certainly bound, especially where the person charging is the purchaser of the powers." So in Molten v. Hutchinson (id., 558), and The Matter of Caswell (id., 559), it was admitted that it was unnecessary to refer to the power; but, as Lord HARDWICKE said in the last case, "he must do such an act as shows he takes notice of the thing he had power to dispose of." In Bennett v. Aburrow (8 Ves., 609), Sir WILLIAM GRANT, master of the rolls, laid down the general rule thus: "This (the question whether a particular disposition was an execution of a power) was always a question of intention, whether the party meant to execute the power or not. The intention," he added, "may be collected from other circumstances, as that the will includes something the party had not otherwise than under the power of appointment; that a part of the will would be wholly inoperative unless applied to the power. There is nothing of that sort in this case. No description of property is disposed of that there is not something to answer." And Judge STORY, in Blagge v. Miles, already referred to, states the spirit of the English cases, most of TIFFANY.-VOL. VI. 49 Opinion of the Court, per DENIO, Ch. J. which he had examined, in the following language: “But the principle furnished by them, however occasionally misapplied, is never departed from, that if the donee of the power intends to execute, and the mode be in other respects unexceptionable (that is, if it correspond to the former requirements of the power), that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. I agree that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation. If it be doubtful under all the circumstances, then that doubt will prevent it from being deemed an execution of the power. All the authorities agree that it is not necessary that the intention to execute the power should appear in express terms or recitals in the instrument. It is sufficient that it shall appear by words, acts or deeds demonstrating the intention." We come now to the precise question upon which this case must turn. As a will of personalty looks to the death of the testator to ascertain the subject upon which it is to operate, is it possible, in any case, to compare the dispositions of the will with the state of the testator's property at the time it was executed, for the purpose of deducing an intention to dispose of property which the testator did not own, but which he had a right to dispose of under a power? The terms in which the principle that the intention to execute the power is to govern in determining in a given case whether it has been executed, is usually stated, would admit of such a comparison, and in many probable cases which might be put would demonstrate, without the possibility of mistake, that such an intention existed. If, for example, a man, possessed of a mere modicum of property, but clothed with a power to dispose of many thousands, in which he had enjoyed a life estate, should be condemned to be capitally executed, and all applications for pardon had been denied, and should make his will, without noticing the power, bequeathing, in pecuniary legacies, sums corresponding with the amount disposable under the power, it would be perfectly evident that he Opinion of the Court, per DENIO, Ch. J. relied wholly on the power of appointment to give effect to the testamentary act; and yet, if his circumstances could not be inquired into, the intention could not be shown, and the will would be inoperative. There are, however, several cases in which the English courts appear to hold that no such comparison as has been suggested can be made. Andrews v. Emmot (2 Brown's Ch., 297) was decided in 1787, by Lord KENYON, then Sir LLOYD KENYON, master of the rolls. By a marriage settlement, between the plaintiff and John Andrews, executed in Dec., 1775, the plaintiff conveyed to trustees £30,000 in public stock, in trust, to permit her, the plaintiff, to receive the dividends until marriage, and afterwards to pay them to Andrews, the husband, for life; and if the plaintiff should survive him, to raise £500 and pay it to her, and to pay the interest on the residue to her for life; and after the death of both, to distribute the stock among the children of the marriage, in a manner mentioned; and in case there should be no children (and there were none), "on trust to transfer the stock to such persons, and in such shares, &c., as Andrews should by deed or will appoint, and in default of such appointment to such persons as the plaintiff should by deed or will appoint, and in default of any appointment, to the executors or administrators of the plaintiff." Andrews covenanted that if the plaintiff should survive him, she should have all his real and personal estate for her life. The marriage took place; and about three months after the settlement, Andrews made his will without noticing the settlement, or the power, giving several legacies, with a residuary clause of all his personalty, the whole payable after the decease of his wife. A reference was ordered to take an account of the personal estate of Andrews, at the time of making the will. The report did not correspond to the order, but stated an account of his personalty at the time of his death, in 1779, showing a deficiency at that time of the amount of the legacies. The bill was filed by the wife, who had survived her husband, for the transfer of the stock to her, for default of an appointment by the Opinion of the Court, per DENIO, Ch. J. husband; which was ordered, and the decree was affirmed by Lord Chancellor THURLOW. The counsel for the respective parties agreed that the question was one of intention; and, on behalf of the plaintiff, it was urged with great force, as it seems to me, that as the will was made so soon after marriage, when there was no improbability of issue, and as Andrews had property of his own upon which the will would operate, the probability was that he had no intention of executing the power. The master of the rolls said the question was, whether he meant to execute the power; but he thought that as he had property of which he could dispose, and thus the will would be operative, it ought not to be held an execution of the power, and that to send it to inquiry, as to the quantum, of that property, might lead to conjecture, which was a method of deciding cases to be avoided if possible. On the appeal, the counsel for the defendants sought to have the reference as to the property of the testator when the will was made, executed, as they thought it was material on the question of intention. The lord chancellor thought the reference immaterial, and that the case was almost too plain for argument. He took notice that the fund was originally the property of the plaintiff. It was necessary, he said, to the execution of the power, that the husband should, by his will, notify his intention to do it. "It is too late now," he added, "to expect that a testator, in order to execute a power, shall make an express reference to it; because it has been determined that if a man disposes of that over which he has a power, in such a manner that it is impossible to impute to him any other intention than that of executing the power, the act done shall be an execution of the power. But the doctrine is not carried by any case further than this, and it would be cruel to do it, as it would be throwing the property of testators into utter confusion. Then you must go out of the instrument itself to gather the construction of it. I do not mean by saying this, to exclude the rule that where there is what has been called a latent ambiguity in the will, you shall not go out of the will to explain the testator's intention by circumstances, but to Opinion of the Court, per DENIO, Ch. J. inquire into the testator's situation, in order to gather from thence what it is probable he meant, is a great deal beyond that. Here the testator has made a will, by which it does not appear that he recollected the settlement made upon the marriage; at least there is only one circumstance, the postponement of the residue until after the death of his wife, by which he appears to remember it." I have stated this case a good deal at large, because it is the first case I have met with which determines that the amount of the property, at the date of the will, cannot be inquired into, and because the case is very generally referred to in the subsequent cases as the foundation of the rule. The case was without doubt correctly decided. The testator had a considerable and probably a large personal estate besides this stock of his wife. By the settlement this belonged to the wife, for life, if she survived him, and at her death, in default of issue, it became subject to any testamentary disposition which he might make, or might have made. He made his will very soon after the marriage, making his legacies payable after her death, when his own property would become disposable. The stock over which he had a contingent power would not be liable to be affected by that power, except in the contingency that there should be no issue of a marriage then recently consummated; and the amount of his own property, subject to the will, could not be ascertained until the expiration of the lives of both himself and his wife. Under such circumstances, there was really no ground for supposing that his will had any reference to the stock; and an inquiry as to his personalty, at the time it was executed, would determine nothing as to his intentions beyond the merest conjecture. This case was commented on, with approval, by Lord Loughborough, in Standen v. Standen (2 Ves., 589), and by the master of the rolls, in Hales v. Margerum (3 id., 299), but both those learned judges take prominent notice of the special circumstance that the will was made early after the marriage, and that the interest of the husband under the power was contingent, and, prima facie, would not be considered |