1872. March Term. Thorn V. Reynolds and intend that the property in my will given and devised to her shall be disposed of according to what I believe to be her wishes." And he then proceeds to dike & als. give to James H. Gardner, in the event that Mrs. Hubbard does not survive him, the house and lot, &c., which he had given to her by his will, and fifty thousand dollars of the stock of the State of Virginia and the city of Richmond, in trust for his said adopted daughter; and the remaining fifty thousand dollars he gives to the brothers, sisters, and nieces of his wife. & als. In October 1861, Mr. Hubbard made a second codicil to his will. In it, beside legacies to other parties, he, in addition to the property given in his will to his beloved wife, devises to her, in fee simple, another house and lot on Broad street. In March 1863, the testator made a third codicil to his will. By the tenth clause of this codicil he revokes the previous residuary bequests, and directs that the surplus of his estate, after satisfying the devisees and specific legacies, shall be divided into two equal parts, one of which parts shall belong in absolute property and estate to my wife, if she survives me, and, if not, shall pass and belong as she may by her will direct; and the other half shall be equally divided among my nephews and nieces at the time of my death, and to the descendants per stirpes of such of them as may be then dead. But if, at the time of my death, any of my said nephews or nieces, or their descendants, be an alien enemy, or so circumstanced that the legacy herein contemplated would be liable to sequestration, confiscation, or forfeiture, then it is my will that the share of said surplus, otherwise intended for such person, shall belong to my wife, if she survives me, and, if she do not, shall go as she may by her will direct. "And for all the purposes contemplated in my will and codicils thereto, I authorize and empower my wife to make a will in my lifetime, which shall be good and effectual in law and equity; but no 1872. March Thorn V. Reynolds & als. thing herein shall impair or affect that part of the thirteenth clause of the first codicil to my will, which relates Term. to my adopted daughter." Mrs. Hubbard, with full knowledge of her husband's dike & als. will and codicils, which were exhibited to her by his request, in June 1863 made her will, and in August 1864 she made a codicil to it. By the first clause of her will she gives to James H. Gardner, in trust for her adopted daughter, Ann Hubbard, then married to Richard F. Reynolds, the house and lot on Broad street in which her husband and herself then lived, with the furniture, &c.; also the other house and lot on Broad street, given to her in the will of Mr. Hubbard; fifty thousand dollars in stocks of the State of Virginia or the city of Richmond, and pew No. 64 in St. Paul's church, which is also given to her in Mr. Hubbard's will: upon certain trusts, and with the powers set out in the clause. By the second clause of her will she says, if my husband die before me, I give to James H. Gardner, as trustee, fifty thousand dollars, in stocks of the State of Virginia or city of Richmond, to be divided and appropriated as follows: And she then distributes this sum among her brother, nieces, and nephews. There are other legacies given among her relations, and a residuary bequest in favor of her adopted daughter Mrs. Reynolds. All the property and estate owned by Mrs. Hubbard, and which her will and codicil purport to dispose of, came to her from her husband, Wm. H. Hubbard, under his will and codicils. Wm. H. Hubbard died in May 1865, and in October of the same year his will and the three codicils were admitted to probate in the Circuit court of the city of Richmond. After his death Mrs. Hubbard kept the papers purporting to be her will and codicil without change, and frequently recognized them as her will, and spoke of them as such; and this was repeated in her last sickness. She died on the 15th of October 1865, and in November following her will and 1872. March Thorn codicil were admitted to probate in the Circuit court of the city of Richmond. The plaintiff having died, the suit was revived in the dike & als, name of Wm. II. Thorndyke and others, her heirs at V. law and next of kin; and came on to be finally heard on Reynolds &als. the 16th of July 1870, when the court held that the papers which had been admitted to probate as the will and codicil of Mrs. Hubbard was her will, and dismissed the bill with costs. Whereupon the plaintiffs applied to this court for an appeal, which was allowed. Crump, Page & Maury, for the appellants. ANDERSON, J. This is a proceeding by bill in chancery, under the statute of wills, to contest the validity of paper writings purporting to be the last will and testament of Mrs. Ann Hubbard deceased, which had been admitted to probate in the Circuit court of the city of Richmond as her last will and testament. An issue devisavit vel non, as required by the statute, was directed to be tried by a jury. Upon the issue the jury found a special verdict ; whereupon the court gave judgment for the defendants, and decreed that the bill of the plaintiffs be dismissed with costs from which decree an appeal was allowed to this court. Two questions are raised upon the record in this cause, which comprehend the whole case: I. First. Can a husband devise or bequeath to his wife an estate, and empower her by his will to make her will in his lifetime, and designate the person, or persons, to whom the estate shall pass at her death, if she survive her husband, or, at his death, if he survive her? Our statute of wills empowers a married woman to make a will, in the exercise of a power of appointment. But it is contended that such power cannot be conferred by the will of the husband, to be exercised by the wife in his lifetime, because the property so devised, and upon which the power of appointment is to operate, is his while he lives, and may be otherwise disposed of by him, by a change in his will, which is ambulatory and revocable. Under our statute of wills, which declares that the power of making a will "shall extend to any estate, right or interest to which the testator may be entitled at his death, notwithstanding he may become so entitled subsequently to the execution of the will" (Code of 1860, ch. 122, § 2, p. 572), an estate devised by A to B, who is sui juris, will pass to C, by the will of B, though made in the lifetime of A, provided A dies without revoking the devise, and B survives him, and then dies without revoking his will. Is there any difference as to the effect of a will made by a married woman, if she has authority to make a will? Within the power given to her by the statute, her will is as effectual to pass the estate as if she were a feme sole. But in this case, the wife having no separate estate, could only make a will in the exercise of a power of appointment. If the ambulatory and revocable character of the will does not incapacitate the devisee to dispose of a devise made by it to him, by his will, in the lifetime of the devisor, I can perceive no reason why the donee of a power under the will may not exercise the power of appointment by will in the lifetime of the testator. In either case, the efficacy of the devise by the will of the devisee, or of the execution of the power of appointment by the donee of the power, depends upon the testator dying without making a revocation. In the one case, the will of the devisee is valid to pass the estate to his devisee if his devisor dies without making a revocation, he surviving. In the other, the appointment is good and effectual if the donor of the power dies without revoking the power, whether the donee of the power survives him or not. It is difficult to perceive a 1872. March Term. Thorn dike & als. V. Reynolds & als. March Thorn 1872. reason why the owner of an estate may not by his will Term, grant to another the power of appointing in his lifetime the succession to that estate, after his decease, if he can dike &als. bequeath the estate directly to the person whom he inV. tended to be the appointee. It would seem to be reasonReynolds &als. able that, when the donee has exercised the power of appointment by will, it should be as valid to pass the estate to the appointee as if it had passed to him by the will of the devisee of the donor of the power. In both cases his title and succession to the estate depends upon the donor dying without the revocation of the power in the one case, or of the devise in the other. There is this difference, however: If the donee of the power dies in the lifetime of the donor, having executed the power, it is valid to pass the estate at the death of the donor; but, if the testator survives his devisee, the estate cannot pass to his devisee, but lapses into the residuary estate, or passes to the issue of the first devisee. So that an appointment by the will of the donee of the power would be a more certain means of investing the title in the appointee than a devise by the devisee of the donor. But it may be objected, that the donee, after executing the power by her will, may revoke the same before, or, if she survive him, after the death of her husband; and that consequently the will of the donor can vest no right in the appointee, except at the will and pleasure of the donee of the power. But it will be perceived, that if this would invalidate the power conferred by the will of the donor, it would invalidate every power of appointment, for its exercise in every case depends on the will and pleasure of the donee of the power. But it is further contended, that the will of the husband cannot confer the power in his lifetime, because it must be given directly, by conveyance to the donee of the power, or by creating a seisin in a third person, to serve and feed the uses, to be raised by the exercise of the power, so that the power may work and take effect |