SECOND DEPARTMENT, APRIL TERM, 1903. [Vol. 82. me for my natural life, I hereby appoint and give to my wife, for her own absolute use after my death, the whole of the property, both real and personal, given to me by the will of my mother for the term of my natural life, with power of appointment as aforesaid. "Witness my hand and seal this 20th day of November, 1897. "(Signed) JOHN B. STANARD [SEAL.]" This will was admitted to probate in Virginia, in March, 1898 under the statute of that State (Code of Va. [1887] § 2514), which provides that "no will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it be wholly written by the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses present at the same time; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." The estate of Caroline M. Stanard consisted wholly of personal property which has always been within this State and is now in the custody of the plaintiff, who, after he became trustee, paid one-half of the income to John during the remainder of his lifetime. John died without issue, leaving his widow, Susan L. Stanard, to whom letters of administration were issued by the County Court of Clarke county, Va., in April, 1898. She claims that her husband's will "is a valid appointment, bequest and disposition to her of the whole of that portion of the estate of the said Caroline M. Stanard which was devised and bequeathed by her will to the said John B. Stanard, and of which the income was paid to him in his lifetime as aforesaid; and she therefore claims one-half of the trust funds now in the hands of the said trustee." The other parties defendant are the executor, legatees, heirs at law and next of kin of Maria, and they claim the whole corpus of the trust fund in the hands of the trustee, upon the grounds that the testatrix intended to give John merely a life estate in one-half of her estate, with a power of appointment at his death; that the intended life estate was not changed into a fee by the Revised Statutes; that his attempted execution of the power was defective; App. Div.] SECOND DEPARTMENT, APRIL TERM, 1903. that equity will not aid this defective execution of the power; and that his one-half portion reverted on his death to the next of kin of the testatrix. We are called upon to decide between these conflicting claims. Mrs. Stanard, the widow of John, contends that the expectant legacy of $5,000 given to Caroline Chew Stanard, daughter of John, lapsed by the death of the legatee during the life of her father, but did not become a part of the residuum of the estate; that it fell back into the fund out of which it was to be taken only in case Caroline survived her father, and is to be dealt with as if it had never been otherwise disposed of than in the legacy to John. The other defendants claim that the legacy lapsed by the death of Caroline Chew Stanard during the lifetime of her father, and contend that as the will contains no residuary clause and makes no provision for the devolution of the legacy in case of its lapse, the testatrix, as to this amount, died intestate and the amount is to be divided equally between John and Maria, and they concede that Susan, under the will of her husband, became entitled to his moiety of the $5,000. Let us start with the principle that the law favors a construction of a will that will prevent partial intestacy. (Vernon v. Vernon, 53 N. Y. 351; Stokes v. Weston, 142 id. 433.) English v. Cooper (183 Ill. 203) cites with approval the strong language in 2 Redfield on Wills (3d ed.), *235: "The idea of any one deliberately purposing to die testate as to a portion of his estate and intestate as to another portion is so unusual in the history of testamentary dispositions as to justify almost any construction to escape from it." The principle was also approved in Woman's Union Missionary Society v. Mead (131 Ill. 338). There can be testacy of the $5,000 only by holding that the legacy fell back into the portion out of which it would have been taken if Caroline Chew Stanard had survived her father. It is not at all doubtful that the testatrix intended to divide her estate equally between John and Maria, and it is her intention for which we are searching. If we hold that the lapsed legacy fell back into John's portion at Caroline's death, the equality intended by the testatrix will be exactly preserved. The law favors equality among children in the distribution of estates. (Stokes v. Weston, supra.) SECOND DEPARTMENT, APRIL TERM, 1903. [Vol. 82. There is a manifest and logical distinction between a legacy charged on a devise, and a legacy excepted from a devise, and the reason is apparent. When a legacy is charged upon land and the legacy lapses, the legacy sinks into the devise and the devisee takes the land free from any charge thereon, for the gift to him in the first instance was of the whole, and, being thereafter modified or changed, and the modification failing, the gift remains complete as at first. But where a legacy is excepted from the devise, a lapse of the legacy does not inure to the benefit of the devisee, for the reason that he never had a complete gift of the whole interest. (18 Am. & Eng. Ency. of Law [2d ed.], 766, 767, where cases are cited in support of the two principles.) The same rule is applicable to personal estate. The question, therefore, is whether the testatrix intended to make the $5,000 legacy to Caroline Chew Stanard a charge upon John's share or whether she intended to except it from such share. I can find in the will and codicil no intention to except Caroline's legacy from John's equal share of the estate save in case of her survival. Certainly, his interest was not to be diminished during his lifetime, for the legacy was contingent upon Caroline's survival. A similar provision occurs as to the share devised to Maria. The legacy to John was of one-half of the estate for his use during his natural life, and in this use there was to be no diminution by Caroline's legacy, as that was to take effect only at his death. The legacy to her was not to become an exception out of his share unless she survived him. We are clearly of opinion that the lapsed legacy fell back into the fund from which it was to be taken, and not into the residuum of the estate. The next question is whether John had the power of disposal of the remainder, after his life estate, of the one-half of the estate either by will or otherwise. In considering this question it is well to refer to established rules. The Real Property Law (Laws of 1896, chap. 547, § 205, revised from 1 R. S. 748, § 2) provides: "Every instrument creating, transferring, assigning or surrendering an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law." See, also, Heath v. Hewitt (127 N. Y. 166), where it is said that the doctrine applies indifferently to wills or grants and that "the sur App. Div.] SECOND DEPARTMENT, APRIL TERM, 1903. rounding circumstances existing when the contract was entered into, the situation of the parties, and the subject-matter of the instrument" may be considered in reaching the intent. It will be noted that the paragraph of the will containing the bequest to John is identical in its language with the paragraph which relates to the share of Maria. This also demonstrates the intention of the testatrix to treat John and Maria equally. This intention is further confirmed by the codicil, and will and codicil are to be construed together. (Ward v. Ward, 105 N. Y. 68.) The absence of a residuary clause also reflects light upon her intention. It shows that she believed that she had already disposed of her entire estate so that there was no necessity for a residuary clause, and it may also be noted that, if the contentions of the heirs of Maria should be sustained, the testatrix died intestate as to one-half of her estate, a result which, as already shown, is to be avoided whenever possible. Riker v. Cornwell (113 N. Y. 115), where there was a residuary bequest, held (p. 127) that the doctrine is firmly established that "where the residuary bequest is not circumscribed by clear expressions in the instrument and the title of the residuary legatee is not narrowed by special words of unmistakable import, he will take whatever may fall into the residue, whether by lapse, invalid dispositions or other accident." But, in the case at bar, as there was no residuary clause, we must take our choice between testacy and intestacy. Besides there are words of unmistakable import in the will to indicate that one-half share of the estate was, as to its disposition, under his absolute control. "the Each paragraph of the will, relating to John and Maria, gives to each, in the same language, an equal estate, that is, one-third for his (or her) use, benefit and profit for the term of his (or her) natural life, "at his (or her) death" $5,000 to his (or her) child, balance of his (or her) portion of my estate at his (or her) own entire disposal." This can be construed as nothing more, nothing less, than a power of disposal by John. We must not fail to give effect to the whole language of the paragraph. The first part, standing alone, would have erected a life estate, without the words "at his death * * * the balance of his portion of my estate at his own entire disposal." This latter clause did not relate to a life estate, SECOND DEPARTMENT, APRIL TERM, 1903. [Vol. 82. but to the body of the estate. It not only conferred upon John power of disposal of his whole portion by a will which, of course, would take effect "at his death" and after his life estate had terminated, but it also conferred upon him the power of disposal during his lifetime by a suitable instrument of transfer. The testatrix said, in effect, I give John the power to dispose of one-half of my estate as it shall exist at the time of his death. If at his death Caroline is living, she is to receive $5,000 out of his portion, and he may dispose of the balance. If she is then dead, there is to be no exception of the $5,000 from his portion. In any event, he shall have the "entire disposal" of the balance of his portion of the estate. The codicil divides the estate into equal portions between the then surviving children, Maria and John. It was the evident intention of the testatrix, according to will and codicil, that no distinction should be made between them. Caroline died during the lifetime of the testatrix, and we may assume that this fact was known to her, yet she made no change as to equality in her estate on account thereof. The will was left intact by the codicil, so far as it relates to equal division between Maria and John. The income of John's portion up to the time of his death was paid to him. It was never diminished by the legacy to Caroline, for she died before him. The will exhibits no intention of the testatrix to diminish John's share, except in the contingency that Caroline should survive him, and she did not survive him, so that his portion was not diminished by Caroline's survival. Her legacy lapsed and fell into his portion, and he became vested with power to dispose of his equal one-half portion of the estate. This leads us to consider his exercise of his power, if it shall be concluded that he had power as defined in the Revised Statutes (1 R. S. 732, §§ 74, 77, 81; Id. 733, § 83), which were revised in the Real Property Law. "A power," by the Real Property Law, "is an authority to do an act in relation to real property, or to the creation or revocation of an estate therein, or a charge thereon." (Laws of 1896, chap. 547, § 111.) Section 114 defines a power as general where it authorizes the transfer of a fee by means of conveyance, will of or charge on the lands embraced in the power, to any grantee whatever. Section 129 provides that where an absolute power of disposition, not accompanied by any trust, is given to the |