#### WILLIAM R. HOLT, *Executor, &c.,*AND OTHERS *against*PLEASANT H. HOGAN AND OTHERS.

Whether a will made by one, having a power to appoint, which does not refer to the power nor notice, specially, any of the property subject to it, is an execution of such power — quere ?

Where a person having a power of appointment for the benefit of others, used it for his own benefit, it was *Held*that such exercise of the power was entirely inoperative.

Where property was left, by a will, to testator’s wife for life, with power to distribute it among her children, and she did not exercise the power, there being no general residuary clause, it was *Held*that after the falling in of the life-estate, the property passed to the distributees of the deceased under the statute.

Where a testator provided, that one of his sons should be supported out of his estate, while getting a profession, and charged his share with a certain sum with a view to that event, and such -son declined, of his own accord, to study a profession, it was *Held*that he had no right to ask that his share should be discharged of that sum in the ascertainment of his proportion of the estate.

*83Cause removed from the Court of Equity of Randolph county*

The bill is filed by the plaintiff, as the executor of the will of "Wiliam Kogan, praying a construction of certain clauses thereof, and for advice as to the manner of carrying the same into .effect. The clauses of the said will, out of which the questions arise, are as follows :

*“First,*I will and desire, that all my just debts shall be paid, and that my estate shall remain in the hands, and under the management of my beloved wife, Elizabeth ITogan, and my two sons, John A. Hogan and Alexander W. Hogan, until my youngest child arrive at the age of eighteen yearn, except such legacies as are herein after named.

*“Secondly.*I give and bequeath to each of my children, namely, John A. Hogan, William L. Hogan, Franklin H. Hogan, Elizabeth J. Stone, Alexander W. Hogan, Pleasant II. Hogan, Louisa Holt, Claudia Hogan, Frances Hogan, Eugenia Hogan, and Julia Hogan, the sum of three thousand dollars each, and to my grandsons, William Jones, Nathaniel Jones, and John Jones, one thousand dollars each, which legacies are to be paid in money and property at its valuation, and moneys which may be raised from the products of my farms ; out of which legacies are to be deducted the advancements I have already made to some of my children; which advancements are hereunto annexed and signed with my signature.

“ *Thirdly,*I give and bequeath to my beloved wife, Elizabeth Hogan, the use of the manor plantation and land adjoining, during her life, and one half of all my personal estate that may' be left after paying the above named legacies ; and one-fifth part of all the marketable produce that may be raised on my mill-plantation, during her life, with the privilege of disposing of the same by will, or otherwise, amongst our children at her death./

“ *Fourthly.*I willand direct,'that my son, Alexander W* Hogan, shall be supported out of my estate until he gets his profession, and, afterwards on the general division of my estate, amongst my children, my sons, John, William and Alex*84ander, shall be charged each with the sum of one thousand dollars, to be deducted from each of their parts in said distribution.

■ *Fifthl/y.*I also will and direct, that my son, Pleasant, shall have the charge of my mill, and exercise the business at that farm as long as he and my-executors herein named, can agree, for which he shall have a decent support and the sum of two hundred and fifty dollars, to be paid him annually by my executors.” * * *

*Sixthly.*I further will and direct that the aforesaid legacies of one thousand dollars, each, which I have willed to my grandsons, William, Nathaniel, and John Jones, shall be paid to them in negroes or land, or both, at the discretion of my executors when they arrive at the age of twenty-one years.”

In a paper referred to by the will as containing a list of advancements, the testator mentions that the sum of $1200 advanced to his daughter, Mary Jones, was not to be deducted from the legacies *to*her three sons, (William, Nathaniel and John,) “as they are not to have any more of my estate than one thousand dollars each.”

Mrs. Hogan and her two sons, John and Alexander, wore appointed executors, but the two latter having died, she continued solely to manage the affairs of the estate for several years preceding her death, during which time she accumulated, from the use of her life-interest, and the other sources provided in the will, an estate of considerable value. She died in 1856, having made a will, appointing the plaintiff', W. R. Holt, her executor, by which he became executor, also, of William Hogan’s will. All the debts were paid off before her death, as also were the special legacies, with the exception of a part of that to Nathaniel Jones, and the legacy of $1000 to John Jones, who died before he reached the age of twenty-one years. The will of Mrs. Hogan in its 10th clause, is as' follows:

“ The residue of my property I will and desire to be sold by my executor, and the proceeds to be applied first to the payment of my aforesaid legacies, and the balance to be divided *85between Elizabeth J. Davis, Louisa A. Holt, Eugenia A. Minniss, the two children of A. W. Hogan, dec’d, to wit, "William G. Hogan, and Jesse H. Hogan, ancl Pleasant Hogan, as follows, to wit, my son, Pleasant H. Hogan, according to the compromise before alluded to between us, and to *go*into the hands of a trustee as above provided: to my daughters, Elizabeth J. Davis, Eugenia A. Minniss, and Lonisa A. Holt, one share each, and to A. W. Hogan’s children one share, they to represent their father.”

Under the will of Gol. Hogan, especially the fifth clause as above stated, his son Pleasant claimed against his mother a large sum for support, and his yearly salary in superintending the business of the mill and mill-farm, which is charged on her interest, and was about to-file a bill in equity for the same; but, at the instance of mutual friends, the dispute was compromised in writing, and signed by each. In that compromise it is provided that Mrs. Hogan, “in making a division of her husband’s estate,, at her death, shall allow to the said Pleasant, twice as much as any other child.”

This is the compromise alluded to in Mrs. Hogan’s will.

The primary question submitted by the plaintiff is, whether the above will of-Mrs. Hogan is a valid and effectual execution of the power contained in her husband’s will, and if not, who are entitled, on the falling in of the estate, to the property left to Mrs. Hogan, to be divided by her.

John Jones, one of the children of Mary, deceased, died several years before he arrived at twenty-one, and another question submitted, is whether his share lapsed or whether it became payable to his administrator, and if payable at all, whether it bears interest, and from what time, and whether in the latter event it may still be paid in property. Alexander W. Hogan voluntarily declined studying a profession, and his support was no charge on the estate on that account. His administrator contends that the charge of $1000 on his share, made in his father’s will, on the supposition of Ms studying a profession, ought not to stand against him in the settlement of the estate, and the executor asks advice also, on this point.

*86By another clause of the will of Mrs. Hogan, she provides-as follows :

“7th. I will and direct that the legacy, or the part of it unpaid given by the will of my late husband, William Hogan, of which I am executrix, to Nathaniel Jones, my grandson, be paid out of lands in Alabama,, belonging to the estate of ray deceased husband, and the balance, if any, after deducting advancements made, out of any estate I may have coming to me from the estate of my deceased son, Franklin H. Hogan, and if I get nothing from his estate, or not sufficient, then out of any estate I may leave behind' me.”

Nathaniel Jones has been of age for several years, and, in his answer, insists that the executor of William Hogan is bound to' pay him his legac^y out of the estate, and that he is not bound to look to the uncertain provision attempted to be made in the will of his grand mother. Upon this point, also, the executor asks the advice of the Court.

All the surviving children of William Hogan, and the representatives of such as have died, are made parties; also-, the administrator of John Jones, and they all answered, but their answers do not vary the statement as herein above set forth.

*Morehead*and *G'omil,*for the pfeintiff.

*JFowle,*Miller, and *Kithrell,*for the defendants»

PbaesoN, C. J.

1. Under the third clause of the will of William Hogan, Mrs. Hogan took a life-estate in the land and personal estate therein mentioned, with a power of appointment among the children at her death, but in the profits of this property, and one-fifth of the produce of the mill-plantation during her life, she took an absolute interest, and was entitled to such portion thereof, as she did not find it necessary to expend; and these- “•savings” pass under her will.

But her will is not an effectual exercise of the-power of appointment. It does not refer to the power, or purport to act under it. Nor does it mention, specifically, any of the pro*87perty willed to her by Col. Hogan; but professes simply, to dispose of her *own estate;*so, that it may well be doubted whether, in this point of view, it could have effect as an exercise of the power. But, if we suppose the reference made to the compromise between herself and her son Pleasant Hogan, is sufficient to connect her will with the power, so as to show an intent thereby to exercise it, another difficulty is presented, which we consider fatal. The compromise shows, that in order to relieve herself from a' liability to Pleasant, which he was about to enforce by suit, she agreed so to exercise the power ás to give him a double share; and, in pursuance of that agreement, she does give him a double share. It is settled that a person having a power of appointment for the benefit of others, is not at liberty to use it for his own benefit; and, if he does so, it makes the exercise of the power entirely inoperative. Thus; if a parent has a power of appointment to such of his children as he may choose, he cannot appoint it to one of the children *wpon a bargain beforehand for his own benefit;*Adams’ Eq. 185. The grounds upon which this-doctrine is based, are too obvious to require comment, and its application to the case under consideration, is manifest.

The power not having been duly exercised, and there being no limitation over, in default of appointment, the question arises, who is entitled to this property, upon the falling in of the life-estate ? There is no general residuary clause' in the will of Col. Hogan. In the Yth clause he directs the residue of his estate, both real and personal, to be equally divided amongst his children by his executors, when the youngest child shall arrive at the age of eighteen years, and thus, by necessary implication, excludes the property which he had given his wife for life, with a power of appointment by her among his children, for there is no connection between the time of his wife’s death and the time when the youngest child should arrive at the age of eighteen. One might happen long before or after the other, consequently, the property given to his wife cannot be included in that which he directs should be divided by his executors; and, being undisposed of *88bj bis will, passed to his distributees under the statute of distributions; the legal effect being that by the will, Mrs. Ilogau took a life-estate, and the reversionary interest passed by act of law to the distributees subject to be divested by the exercise of the power of appointment. It follows that Mrs. Hogan was entitled to a distributive share of this undisposed of fund, for the life-estate given to her by the will, does not exclude her from claiming her part of what.is not embraced by the will. This interest, and her “savings” from the profits of her life-estate, and any other estate she may have owned, pass under her will. So, it also follows that the three children of Mrs. Jones, a deceased daughter, are entitled to a share of this fund; for the words of exclusion, as to them, only have the effect of preventing any further claim by them *wnder the*will, and do not embrace an interest as to which he died intestate; *Dunlap*v. *Ingram,*4 Jones’ Eq. 178.

2. The legacies of the sum of' $1000 to each of the three children of Mrs. Jones, were vested, although not to be paid, until they respectively arrived at the age of twenty-one years; consequently, the administrator of John Jones is entitled to his legacy, but he is not entitled to interest except from the time when he would have arrived at age. His dying before that time, does not entitle his representative to claim the money or interest on it, sooner than he would have been entitled had he lived. There will be a decree against the executor for these legacies and interest, to be paid in money. For, the discretion of the executor to pay in land or negroes, ought to have been exercised at the time the legacies were payable, and the arrangements which Mrs. Hogan attempts to make in her will, has no legal effect.

3. As Alexander Hogan, of his *own accord,*declined to study a profession, we can see no ground upon which he can take advantage of his own fault, or rather, his own pleasure, in order to free himself from a charge which the testator annexed to his share of the estate. The cases cited by Mr. *Miller,*do not support the position taken by him. If a legacy of $1000 be given to one to be paid when he arrives at age, and *89the interest is directed to be applied to his education, he is entitled to the interest, although he becomes a lunatic; because it was a direct gift to him with a mere direction as to its application. So, if $100 is given for the nurture of A, and also, $100 to bind him apprentice, and the *ewe autor neglects*to bind him, A is entitled to the $100 which ought to have been applied to putting him out as an apprentice; for, it was the fault of the executor, and not that of A, that lie was not bound apprentice; *Barton*v. *Cooke, 5*Ves. Rep. 461; which distinguishes from our case. Resides, there is not here any gift to Alexander, but only a direction that he shall be supported out of the estate until lie gets his profession, witli a charge of $1000 upon his share, and that of John and William. So the charge is positive, and the provision for his support was, of course, left for his election, and because he chose to disappoint the expectation of the testator, by not studying a profession, *non*constat, that he thereby relieved himself of the charge. There must be a decree and reference conform: ing to this opinion.

Peb Oubiam, Decree accordingly.