#### John J. Aaron, et al., *vs.*Elijah Beck, et al.

Testator devised and bequeathed as follows : “ I give all my property real and personal to my wife S. K. during her natural life and should she again marry then and in that ease the whole of the property to be equally divided between her and my daughter M. E. the half of which my wife shall die possessed to be disposed'of at her death as she may think proper and that which shall fall to my daughter to be exclusively hers” for life, with remainder, *&c.:*— Held, that the- wife took an estate - for life in the whole property, defeasible upon her marriage as to one half — that her estate in the half which upon her marriage she was entitled to retain, was not enlarged into an absolute estate, but remained an estate for life with power of appointment to take effect at her death. On bill by remainder-men for an inventory, costs allowed the plaintiffs.

BEFORE WARDLAW, OH., AT BARNWELL, FEBRUARY, 1857.

A full statement of the case is contained in the circuit decree which is as follows:

'WabdlA'W, Oh. Bobert Kennedy died October 16, 1834, leaving of force a will dated October 10, 1834, whereby, in a single sentence, without marks of punctuation, he disposed of his estate in the following terms: 111 give all my property both real and personal to my loving wife Saráh Kennedy during her natural life and should she again marry then and in that case the whole of the property to be equally divided between her and my daughter Mary Elizabeth Aaron the half of which my wife shall die possessed to be disposed of at her death as she may think proper and that which shall fall to my daughter Mary Elizabeth Aaron to be exclusively hers during her natural life and at her death to the lawful issue of her body and in *412the event of my daughter’s dying without issue to revert to my nearest blood kindredand specific partition by disinterested persons, and not by sale, is directed.

Afterwards in the year 1836, the widow, Sarah Kennedy, intermarried with Charles Beck, and thereupon a division of the estate of testator was made, and the said Sarah, took as her moiety, (besides some land which is not in controversy,) the slaves Billy, Bowman, January, Vicey, Amy, Samuel, Sophy, Sabrina, George, Priscilla, Cornelius, Aquilla and Marcella. Charles Beck died in 1855, leaving of force a will dated June 1, 1846, whereby, he gave to his said wife, Sarah for life, the slaves Billy, Bowman, January, Yicey, Amy, George Sabrina, and Sylvia, (which last is dead) and all the remainder and residue of his estate to the defendants, his four children by a former marriage, on certain trusts and limitations not affected by the present litigation. After the death of said Charles Beck, namely, on November 1, 1855, his widow, Sarah, professedly in execution of the power of appointment given to her by the will of Bobert Kennedy, made a deed, whereby, after reserving to herself .the enjoyment for life, she apg^nted and transferred the aforesaid twelve slaves to John J. Aaron absolutely, in trust for the sole and separate use of Mary E., wife of John Aaron, for life, and at her death to her children left living. After the death of Charles Beck, the defendants, or some of them, as his legatees and representatives, procured the said slaves to be appraised as belonging to his estate, and were proceeding to divide them among themselves, when the plaintiffs filed this bill to have their rights declared and secured. It is conceded by the defendants, that, if the plaintiffs as appointees of Sarah Beck or distributees of Bobert Kennedy, (and the mother Sarah, and daughter Mary E. are his distributees,) have any right to the slaves, then they are entitled to a schedule of the slaves, signed by the defendants, identifying them as liable to delivery to plaintiffs on the death of Sarah Beck; and the plaintiffs are *413content to have tbis remedy. Tbe question of tbe cause, therefore, is whether Sarah, widow of Eobert Kennedy, took under bis will an estate for life only in tbe said slaves, with a power of appointing tbe succession, or an absolute estate in tbe slaves, which on her marriage with Beck vested in him as husband.

Tbe distinction although nice is completely established, between a gift to one indefinitely with a general power of appointment superadded, and a gift to one for life with like power of appointment; in the former case the estate passes absolutely to the donee, and in the latter case an estate for life only passes to the donee, with a power of appointing the inheritance or succession, which must be exercised to be effectual. "Where the estate for life is given to let in intervening estates in strangers in default of appointment, and especially if no specific mode of appointment be prescribed, and the intervening estates.fail in event, this distinction has not been so inflexibly preserved as in cases where there is no such mesne estate, and a particular mode of appointment is specified. The general doctrine, however, as to express gifts for life is as above stated. Wherever a power only, by the construction of the instrument of gift, is properly interpreted to be given, the donee cannot take an absolute estate; and it is against the course of Courts to enlarge express estates by implication. 1 Sug. Pow. 119,128. *Anon.*3, Leon 71. *Tomlinson*vs. *Dighion,*1 P. Wms. 149. *Bradley vs.*Westcoit, 13 Ves. 445. Beithvs. Seymour, 4 Kuss. 263. *Pulliam*vs. Byrd, 2 Strob. Eq. 142.

In the present case, the primary gift of the estate is to the widow Sarah, for life, and the express and formal word of donation to her is limited to such life estate, and this affords an argument of some strength against extending her estate by implication. Still it is plain that the terms of the will directing equal division of the whole property between widow and daughter in the event of the widow’s second marriage, are adequate to pass the fee if the context demonstrates such in *414tention of tbe donor ; *Banlchead*vs. Carlisle, 1 Hill, Ob. 357; *Shaw*vs. *Moni/eldt,*6 Eicb. Eq. 240. And it is urged that snob intention is demonstrated as to the widow’s moiety, by tbe omission of express restriction of her estate for life, and the insertion of a general power of disposal; whereas tbe other moiety, by tbe same clause, is expressly restricted to the daughter’s life, with limitations over at her death, and as the daughter might, and in the course of nature probably would survive the mother, this provision could not be reasonably confined to the widow’s life estate. But the words of division are satisfied by supposing them to refer merely to the subjects of property to be divided, without defining the estate therein to be acquired by the widow on the division; and there is no inconsistency of purpose imputed to the testator by deducing his intention to be, to give, in the event of the widow’s marrying again, one-half of the' property to her for life with power of appointment, and the other half to the daughter for her life with remainder to her children, &c. It is unusual, perhaps, unnatural, for a testator to provide with greater or equal liberality for his wife, in case she shall become the partner of another’s bed, as where she preserves her widowhood intact; and yet this would be the result of the construction urged for defendants. The portion of the wid.ow upon second marriage is described as “ the half of which my wife shall die possessed to be disposed of at her death as she may think proper,” and these words seem to contemplate that she shall remain in possession of the specific property during her whole life, and make no valid disposition of it to take effect in enjoyment before her death. If the general power of disposal conferred had been intended to carry the fee, it was inconsistent and preposterous to provide for the time when her appointment should take effect, as her *jus disponendi*as owner would have included any lawful time and mode. The fact, that the property is not given to her separate use, strengthens the inference, that her right of disposal accruing when she married, was a power and not an *415absolute estate. It is argued that as the wife’s power of disposal has no limit as to mode beyond her discretion, her second marriage without any settlement of the chattels on herself amounts to an appointment by the act of marriage in favor of the husband; but this view overlooks the provision that the power was to be exercised only in the event of her marriage, or in other words, after she had incurred disability by the act of marriage. It is held in *Nix*vs. *Bradley,*6 Bich. Eq. 43, that the husband does not acquire *eo instanti*upon marriage, chattels settled to the separate use o£*SKt£mfe; and chattels as to which she has merely a p^WS^pf appoimpnent after marriage are clearly within the/¡sájale p|jnci|le. \^.nd notwithstanding the disparaging ria^|k tí|,may’q^pteé|ried brother Dargan in that case, I am sam^I witmthe^ifS-iiiency of the reason for the doctrine that tn® ;ito.e ^^he'¿l4u|band to the wife’s chattels does not accrue mtE^the^ct, .^marriage be complete, whereby she isrendereamftj^^^etent to contract with him, except in virtue of some special power reserved to her. The wisdom and policy of the law, that the wife by marriage confers upon the husband the unsettled chattels owned and possessed by her, maybe vindicated; but surely a different result is reasonable, where a separate estate in her has been created for the obvious purpose of restricting the marital rights, or a power has been given to her to be exercised when she has ceased to be *sui juris.*Where in the instrument creating the power there is no limitation as to mode or objects, the wife might appoint to the husband or any other person in any form by which the estate, according to its nature, could be legally transferred; *Olarlc*vs. Malcenna, Chev. Eq. 163; *Converse*vs. *Converse,*MS. But it is not pretended here that the wife has appointed to the husband unless by the act of marriage. Again, it is argued that as the will of Kennedy does not dispose of his estate beyond the life of his wife, except on the contingency of her marrying again, which event has happened, it is proper to presume, in the actual event, *416against intestaey, and in favor of complete disposition. It is tbe province of tbe Court to expound and not to make tbe wills of testators; and if, in some possible event wbicb bas not occurred, Robert Kennedy might have been intestate as to tbe remainder of bis estate after tbe interest in tbe wife for life, tbe defect could not be judicially supplied, nor made tbe ground for deflecting tbe interpretation of bis dispositions so far as they were expressed.

It may be observed, however, that tbe testator does not absolutely define tbe interest of bis daughter in tbe estate as a portion or part, or as accruing on a single event, but describes it as 11 that wbicb shall fall to my daughterand perhaps these words are adequate to embrace tbe whole remainder if tbe wife died without contracting another marriage, or if she married again, then one-balf certainly, with as much more as the mother might choose to appoint to tbe daughter.

My general conclusion is, that tbe will of R. Kennedy gave to- bis widow an estate for life in tbe whole property, defeasible as to one-half on her second marriage in favor of his daughter and her issue, and with a general power of appointment to take effect at tbe widow’s death in tbe other half: and that tbe execution of this power in favor of tbe plaintiffs is effectual.

It is adjudged and decreed, that tbe defendants are bound to deliver to tbe plaintiffs, tbe slaves in question at tbe death of Sarah Beck; and it is ordered that defendants sign a schedule- of said slaves under tbe direction of tbe Commissioner. It is further ordered that tbe defendants, except Sarah Beck, pay tbe costs.

The defendants appealed and now moved this Court to reverse tbe decree,

Because tbe will of Robert Kennedy, rightly construed, gives one-balf tbe property to Sarah Beck, not for life, but *417*generally and indefinitely, with a general power of appointment superadded,*and Ms Honor should have so decreed.

Failing in the motion to reverse, the defendants then moved to modify the decree as to the costs, because in all such cases as this, where there is no proof of danger, and the complainants ate therefore only entitled to an *inventory*of the property, the proceeding must be at the costs of the complainants, as was decided in' *Joyce*vs. *Gunnels,*2 Rich. Eq. 259, and his Honor should have so decreed in this ease.

*J. T. Aldrich,*for appellants,

cited Co. Litt. 221 b; 2 Crabb, 2067; 1 Sug. on Pow. 120, 331, 472 ; 2 Crabb, 2059; 2 Atk. 202 ; 2 Johns. 391; 2 Story Eq. 1394; 1 Sug. on Pow. 128; 1 Ventr. 203; *Napier*vs. *Wightman,*Sp. Eq. 370 ; 1 Jac. & .Walk. 89; 13 Yes. 108; *Austin*vs. *Payne,*8 Rich. Eq. 1; 1 Jarm. 830; 18 Yes. 429 ; 1 Sug. on Pow. 109, 110, 406; Bao. Abr. Legacy, B ; *Blewer*vs. *JBrightman.*4 McC. 60.

*Hutson,*contra,

cited 1 Spence, 528, 557, 587; 2 Jarm. 742; 2 Wm’s onEx’ors, 714, 715.

*Per Curiam.*

This Court concur in the decree of the Circuit Court, which is hereby affirmed and the appeal dismissed.

JohnstoN, DuNKIN, DargaN and Wardlaw, CC., concurring.

*Appeal dismissed.*