for value and in good faith, it may be availed of by the township in the actions at law on the coupons. If these objections are not of that character, they do not impair the equity of the purchasers to relief against the accidental omission of the seals of the commissioners. The validity of both these objections, therefore, may be more appropriately determined in the actions at law. The remaining question argued at the bar is how far the citizenship of the real parties in interest, and the amount of the claim of each, should affect the exercise of jurisdiction, and the extent of the decree. The position of the plaintiffs is, that the bonds and coupons being payable to bearer, they are entitled to sue, at law or in equity, on all the coupons held by them; that the combination of the holders of several claims of moderate amount against the same defendant for the purpose of diminishing and sharing the expense of litigation, was entirely proper, and should be encouraged by the court; that the bonds and coupons owned as well as held by the plaintiffs, and by others not citizens of New Jersey, clearly brought the case within the jurisdiction of the court, and that to deny to citizens of New Jersey the right to transfer their claims to the plaintiffs for the purpose of collection in the same suit would be to discriminate unjustly between the citizens of New Jersey and the citizens of other States. But, in the matter of the jurisdiction of the Federal Courts, the discrimination between suits between citizens of the same State and suits between citizens of different States is established by the Constitution and laws of the United States. And it has been the constant effort of Congress and of this court to prevent this discrimination from being evaded by bringing into the Federal Courts controversies between citizens of the same State. In the Judiciary Act of 1789, the only express provision to this end was that the circuit court should not "Have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.' Stat. September 24, 1789, ch. 20, sec. 11; I Stat. at L., 78; Rev. Stat., sec. 629, cl. 1. That provision has been held not to be restricted to actions at law, but to include bills in equity to foreclose mortgages, or to compel the specific performance or enforce the stipulation of contracts. Sheldon v. Sill, 8 How., 441; Corbin v. Black Hawk Co., 105 U. S., 659 [XXVI., 1136]. request, and for the sole purpose of giving ju risdiction to the Federal Courts, was dismissed, because the grantors were necessary parties to the suit, and because their conveyance, not transferring their real interests, to the other parties, was a fraud upon the court. The Act of March 3, 1875, ch. 137, sec. 5, directs that if "In any suit commenced in a circuit court" it shall appear to the satisfaction of the court, "at any time after such suit has been brought," "that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable" by the circuit court, that court "shall proceed no further therein, but shall dismiss the suit," and shall make such order as to costs as shall be just, and its order of dismissal shall be reviewable in this court on writ of error or appeal. 18 Stat. at L., pt. 3, 470. In Williams v. Nottawa,104 U.S.,209 [XXVI., 719], decided by this court since the hearing of these cases in the circuit court, an action was brought by Williams, a citizen of Indiana, in the Circuit Court of the United States for the Western District of Michigan against a township in that State and district, upon its bonds payable to bearer. The action, as the record on file shows, was brought in September, 1874, about six months before the passage of the Act of 1875. It appeared that Williams personally owned only three of the bonds, of $100 each, and that the other bonds in suit had been transferred to him solely for the purpose of collection with his own, by the owners thereof, all of whom were citizens of Michigan, except one Tobey, whose bonds amounted to $300 only, and whose citizenship was not disclosed by the record. The circuit court gave judgment for the plaintiff for the amount of the bonds belonging to Williams and to Tobey, and in favor of the township for the remainder. Upon a writ of error sued out by Williams to reverse the judgment in favor of the township, this court held that, in obedience to the Act of 1875, the action should be wholly dismissed; because, so far as concerned the bonds owned by citizens of Michigan, who could not sue a Michigan township in the courts of the United States, it could not be doubted that the transfer to the plaintiff, being colorable only and never intended to change the ownership, was made for the purpose of "creating a cause cognizable in the courts of the United States;" and, as to the bonds owned by Williams and by Tobey, there was a collusive joinder, because, when the suit was begun, the amount due to each was less than $500, and therefore insufficient to maintain a suit in the Federal Courts. In Barney v. Baltimore, 6 Wall., 280 [73 U. 8., XVIII., 825], a bill in equity for the partition of real estate and for an account of rents and The decision in Williams v. Nottawa estabprofits, in the Circuit Court of the United States lishes that the Circuit Court of the United for the District of Maryland, by a citizen of States cannot, since the Act of 1875, entertain Delaware, owning a share in the estate, against a suit upon municipal bonds payable to bearer, citizens of Maryland, owning other shares there- the real owners of which have transferred them in, and to whom the owners of the remaining to the plaintiffs of record for the sole purpose of shares, being citizens of the District of Colum-suing thereon in the courts of the United States bia, and not of any State, and therefore not authorized to sue in the Circuit Court of the United States, had conveyed their shares without consideration, under an agreement to reconvey upon for the benefit of such owners, who could not have sued there in their own names, either by reason of their being citizens of the same State as the defendant, or by reason of the insufficient value of their claims. The principle of that de-companied with the declaration that it is to be "for cision is equally applicable to suits in equity to the purpose of raising money to pay off any and all incumbrances now on said property." assert equitable rights under such bonds. [No. 125.] It was argued that these bills in equity were only auxiliary to the actions at law, which were brought before the passage of the Act of 1875, Argued Nov. 14, 1883. Decided Nov. 26, 1883. and therefore that Act had no application. The APEAL from the Circuit Court of the United inois. States for the Northern District of Ill The bill in this case was filed in the court below, by the appellee, to foreclose a mortgage, securing an indebtedness of $20,000, on certain premises situated in Chicago. The hearing resulted in a decree in favor of the complainant for $27,191.73, and for the foreclosure of the mortgage and sale of the premises. The decree also dismissed the cross-bill, on general demurrer, for want of equity; whereupon the defendant appealed to this court. answer to this is twofold: First. The bills in equity, filed since the passage of the Act are independent suits, of broader aim than the actions at law. The actions at law are to recover the amount of coupons only; the bills in equity seek, not merely an injunction against setting The appellants, who are heirs and devisees of up the defense of want of seals in the pending the mortgagor, filed a cross-bill setting up an exactions on the coupons, but also a decree declar- tension of the mortgage in question, which they ing that the bonds shall be deemed valid. Sec-claimed was invalid, and prayed that the mortond. Even the actions at law, brought before gage be discharged of record, and the premises the passage of the Act of 1875, are subject, un- freed from the cloud thereof. der the adjudication in Williams v. Nottawa, to be dismissed, in whole or in part, as the facts may require, in the court in which they are pending. It follows, that these bills should have been dismissed, so far as regarded the bond for $200, owned by a citizen of New York in the first case, and also as to all the bonds owned by citizens of New Jersey in either case. But no valid objection has been shown to the maintenance of these bills, so far as regards those bonds of which the plaintiffs are the bearers, and which are act- Mary Beers, appellants' mother and testator, ually owned, either by themselves or by other in executing the mortgage upon her separate citizens of New York or Pennsylvania, to a suf- property to secure the indebtedness of Cyrenius ficient amount by each owner to sustain the ju- Beers, occupied the position of surety; and ap‐ risdiction of the circuit court. Thompson v.pellants as her devisees succeeded to the same Perrine [ante, 298]; Chickaming v. Carpenter [ante, 307]; Comrs. v. Bolles, 94 U. S., 104, 109 [XXIV., 46, 47]; Cromwell v. Sac Co., 94 U. S., 351, 360 (XXIV., 195, 200]. The decrees of the circuit court must be modified accordingly. The decrees in favor of the appellees being reversed as to a large part of their claims, they should pay costs in this court; but as they still maintain their bills as to the rest of their claims, they should recover costs in the court below. The decrces of the Circuit Court are reversed, and the cases remanded with directions to enter decrees in conformity with this opinion. Mr. Justice Field took no part in this decision. James II. McKenney, Clerk, Sup. Court, U. S. The facts of the case are fully stated by the court. Messrs. John S. Miller and Geo. Herbert, for appellants: position and rights as such surety, and are entitled to every defense which could have availed to their mother had she lived. Bank v. Burns, 46 N. Y., 170; Smith v. Townsend, 25 N. Y.,479; Gahn v. Niemcewicz, 11 Wend., 312; S. C., 3 Paige, 614; Johns v. Reardon, 11 Md., 465; Purvis v. Carstaphan, 73 N. C., 575; Aguilar v. Aguilar, 5 Madd., 414; Stamford Banking Co. v. Bell, 4 DeG. F. & J., 310; Earl v. Countess of Huntingdon, 2 Bro. P. C., 1; 2 Lead. Cas, in Eq., part II.,4th Am. and 4th London ed., 1938. Hare & W.'s Notes. A construction will be favored by the court, both of the power and of the agreement of extension, which will favor the surety. Law v. East India Co., 4 Ves., 833; Kings bury v. Westfall, 61 N. Y., 360; Wright v. John son, 8 Wend., 512; Chase v. McDonald, 7 Harr. & J., 193; Stratton v. Rastall, 2 T. R.,370; Wright v. Russell, 3 Wils., 539. bond of Cyrenius Beers, released the premises The extension of the time of payment of the from the lien and operation of said mortgage to secure said bond. Bank v. Burns (supra); Smith Townsend, 25 N. Y., 479; Gahn v. Niemes wicz (supra); Purvis v. Carstaphan (supra). RISSA J.WARNER. Formerly RISSA J.BEERS, V. (See S. C., Reporter's ed., 357-371.) By the said will an estate for his own life only was devised to said Cyrenius Beers, and a vested remainder in fee was devised to the chil Execution of a power conferred by will-mortgag-dren of the testatrix. Doe v. Considine, 6 Wall., ing estate. 1. The donee of a power under a will by doing a thing which, independently of the power, would be nugatory, conclusively evinces an intention to execute the power, and the Act, if within the scope of the power, must be regarded as a valid execution of it. 2. The power to encumber an estate "by way of mortgage or trust-deed or otherwise, and renew the same," is broad enough to include the renewal and extension of an existing incumbrance, as well as the creation of a new one; although the power is ac 458 (73 U. S., XVIII., 869); 1 Prest. Est., 70; L. R., 2 Eq. Cas., 151; Minors v. Battison, L Doe v. Martin, 4 T. R.,39; Lambert v. Thwaites, R., 1 App. Cas., 428; Hoyt v. Jaques, 129 Mass, 286. The extension was not authorized by the power in the will. Ward v. Bank, 7 T. B. Mon., 93; Seitzinger v. Weaver, 1 Rawle, 377; Horwitz v. Norris, 49 Pa., 213; Slifer v. Beates, 9 S. & R., 166; Hetzel v. Barber, 69 N. Y., 12. The agreement of extension was not in execution of the power. Clere's Case,6 Coke, 17; Blagge v. Miles,1 Story, 446; 4 Kent, 335; Doe v. Roake, 2 Bing., 497; Roake v. Denn, 1 Dow. & C., 437; Nowell v. Roake, 2 Bing., 497; Denn v. Roake, 6 Bing., 475; S. C., 2 Bing., 497; Story Eq. Jur., sec. 1062 a; Lewin, Trusts, 22; 6th Lond. ed., 19; 3 Redf. Wills, 469; Hill, Trust., 67; 2 Sugd. Pow., 159; Eldridge v. Heard, 106 Mass., 579. In the construction of wills, courts have manifested a solicitude to protect the interests of heirs, and every fair intendment is made in their favor. Moone v. Heaseman, Willes, 141; Roe v. Blackett, Cowp., 235; Areson v. Areson, 3 Den., 458; Bender v. Deitrick, 7 W. & S., 284; Luce v. Harris, 79 Pa., 432; 1 Redf. Wills, 434, 435; 2 Jarm. Wills, 741, Rule V. Mr. Edward S. Isham, for appellee: Regarded merely as a surety, consent was given to the extension by the will of Mrs. Beers. No other consent was of any importance. Cyrenius was authorized to make a contract by which the estate should be incumbered, to provide for its liability on an existing mortgage. In Tasker v. Small, 6 Sim., 625, one having under a settlement a power to raise £15,000 by mortgage, annuity," or "otherwise;" it was held he might sell the estate for that purpose. 1 Sugd. Pow., 514. that is to say: to receive the rents, income and profits thereof during his life, with the remainder to my children, Mary C. Foster, wife of Orrington Č. Foster, Rissa J. Beers and Charles G. Beers, share and share alike to them, their heirs and assigns forever. But, provided that said Cyrenius Beers may incumber the same by way of mortgage or trustdeed or otherwise, and renew the same, for the purpose of raising money to pay off any and all encumbrances now on said property, and which trust-deed or mortgage so made shall be as valid as though he held an absolute estate in said property. But provided further; that the said Cyrenius Beers may, in his discretion, during his life, sell and dispose of any or all the real estate of which I may die seised or possessed, as though he held an absolute estate in the same, and out of the proceeds pay any of the incumbrances upon any of the property of which I may die seized and possessed, and the remainder, over and above what may be required to pay the indebtedness upon said property, the same being now incumbered, to re-invest in such way as he may see proper, and from time to time to sell and re-invest, such re-investment to continue to be held in trust the same as the estate of which I may die possessed; that is to say, the said Cyrenius Beers only to have the use during his Regarding the case as one merely of the exe-life of said estate, with the right of sale and to cution of a power, there was no defect in the execution. 1 Lead. Cas. in Eq., pt. 1, pp. 229, 230, 234, 241; Notes to Tollett v. Tollet; Blagge v. Miles, 1 Story, 426; Clere's Case, 6 Coke, 17; Maundrell v. Maundrell, 10 Ves., 258. Under the will of Mary Beers her estate became no longer a surety merely, but the principal debtor. Mr. Justice Matthews delivered the opinion of the court: This appeal brings into review a decree for the foreclosure of a mortgage, of real estate and sale of the mortgaged premises, and dismissing a cross-bill filed by the appellants, praying that the mortgage might be declared not to be a lien on the premises and delivered up to be canceled. The mortgage in question was dated February 24, 1869, and was made by Cyrenius Beers and Mary Beers, his wife, to secure payment of a debt due from the husband to the mortgagee, according to the terms of his bond, conditioned for the payment thereof on February 24, 1874, with interest at the rate of eight per cent per annum, payable semi-annually. The title to the real estate mortgaged is recited in the mortgage to be in the wife. Mary Beers died, leaving a will, which was duly admitted to probate in March, 1872. It is as follows: "I, Mary Beers, wife of Cyrenius Beers, of Chicago, of lawful age and sound mind, in view of the uncertainty of human life, do make, publish and declare this my last will and testament: First. I order all of my debts to be paid, including the expenses of my funeral and last ill ness. Second. I give and bequeath to my husband, Cyrenius Beers, all the estate, both real, personal and mixed, of which I die seised or possessed, to be held by him in trust for the following uses, purposes and trusts, and none other, encumber and re-invest, the remainder after his death to go to my children and their heirs forever. Third. I hereby appoint said Cyrenius Beers executor of this my last will and testament, hereby waiving from him all bail and security, as I have a right to do under the statute in such cases made and provided, as such executor." Cyrenius Beers qualified and acted as executor, administered the estate fully, and was discharged September 20, 1877. The appellants are children and devisees of the testatrix, and the only ones interested in the mortgaged premises, as such, a brother, the only other child, Charles G. Beers, having released his interest to them. The life estate of Cyrenius Beers was determined by his death, on or about February 25, 1878. The accruing interest on the mortgage debt had been duly paid by him until the maturity of the principal sum, February 24, 1874, when the appellee and Cyrenius Beers entered into a written agreement whereby the time of payment of the principal of the mortgage debt was extended and postponed until February 24, 1879, in consideration of the agreement of Cyrenius Beers to pay the same when due, and interest thereon in the meantime at the rate of nine per centum per annum, payable semi-annually. This extension of the time of payment of the mortgage debt was made without any consent thereto on the part of the appellants. It is claimed on their behalf that, as owners of the estate mortgaged by the testatrix to secure the debt of her husband, they are in the position of suretics, and that the extension of time for the payment of the debt, without authority from them, is, in equity, a discharge of the lien of the mortgage. The appellee insists, in reply to this claim, that the agreement by which further time was given for the payment of the debt, during which | the mortgage was continued in force, was authorized by the will of Mary Beers and binds her devisees. Whether this be so is the precise question we are required to decide. the day named therefor, and the interest thereon as stipulated, it being understood that on failure to pay any installment of interest, the whole of the principal sum shall thereupon become due, and may be collected without notice, toWe are reminded, at the outset of the argu-gether with all arrearages of interest. It is also ment, by the counsel for the appellants, that understood and agreed between the parties, that being sureties, they are favorites of the law; nothing in the agreement shall operate to disthat their contract is strictissimi juris; and that charge or release Cyrenius Beers from his lianothing is to be taken against them by intend- bility upon the bond originally given for the ment or construction. It is quite true that "The payment of the debt, "But it is expressly unextent of the liability to be incurred must be derstood that this instrument is to be taken as expressed by the surety, or necessarily com- collateral and additional security for the payprised in the terms used in the obligation or ment of said bond." It is also expressly undercontract;" that is, "the obligation is not to be stood and agreed between the parties that in the extended to any other subject, to any other per- event of failure on the part of Cyrenius Beers, son, or to any other period of time than is ex-"to fulfill, keep and promptly perform, as well pressed or necessarily included in it." "In this in spirit as in letter, the covenants in said mortsense only," continues Mr. Burge, Law of Sure-gage contained, given by said Cyrenius Beers tyship, 1st Am. ed., p. 40, "must be understood the expression that the contract of the surety is to be construed strictly. It is subject to the same rules of construction and interpretation as every other contract." Besides, the rule of construction applies only to the contract itself, and not to matters collateral and incidental, or which arise in execution of it, which are to be governed by the same rules that apply in like circumstances, whatever the relation of the parties. So that, the fact that the appellants occupy the relation of sureties cannot control the determination of the question whether the agreement, extending the time of payment of the mortgage debt, and the continuance of the mortgage as an incumbrance upon the estate, was a valid execution of the powers conferred by the will of the testatrix. That question must be answered according to its own rules. It is further said, however, on the part of the appellants, that the agreement of February 24, 1874, cannot be sustained in support of a continuation of the mortgage lien, as an execution of the powers conferred by the will of Mary Beers, because it does not appear that it was so intended by Cyrenius Beers, the donee of those powers. It is argued that the agreement of extension makes no reference either to the power or to the property of the testatrix, which is the subject of the power; that every provision contained in it can have its full operation and effect; that is, all that it professes to do or provide for can be done, according to its full tenor, without referring the act to the power, and by referring it solely to the individual interest of Cyrenius Beers, as the debtor of the appellee. to said Company, then, at the election of the said Company, the whole of said principal sum in the condition of said bond mentioned shall thereupon at once become due and payable, and may be collected without notice, together with all accrued interest thereon at said rate of nine per centum per annum, anything herein before contained to the contrary notwithstanding." Taking the instrument in all its parts and looking at its entire scope and purpose, it must be admitted that, notwithstanding its omission of any direct and express stipulation of that character, its meaning and legal effect are to continue in force, so far as the parties to it had lawful authority to do so, the covenants and lien of the mortgage as security for the payment of the original debt, with the interest reserved at the increased rate until the expiration of the extended time of payment. This effect was undoubtedly intended by the parties, and this intention could not take effect except by virtue of the powers contained in the will of Mary Beers. Cyrenius Beers, as debtor, had no power to continue the mortgage in force, nor as tenant for life to renew it as a mortgage in fee. This is a demonstration, therefore, that the instrument must be treated as an execution of those powers, because, if it cannot otherwise operate according to the intention of the parties, it must be referred to the power which alone can make it effectual in all its provisions. The rule applicable in such cases, it is claimed, is that deduced as the doctrine of Sir Edward Clere's Case, 6 Coke, 17 b, as stated by 1 Sugd. Pow., 417, 7th Lond. ed., that "where the disposition, however general it may be, will be absolutely void if it do not inure as an execution of the power, effect will be given to it by that construction." Mr. Chance, however, says: This, however, on an examination of its terms, will appear to be an erroneous view of the true meaning and legal effect of the agreement of extension. It recites the indebtedness"There are, indeed, in the case dicta apparentof Cyrenius Beers to the appellee, as then due and unpaid; that he had applied to them to extend the time for the payment of the principal sum; that Cyrenius Beers and Mary, his wife, had executed and delivered their deed of mortgage to secure the payment thereof; it is thereupon witnessed that the Connecticut Mutual Life Insurance Company doth thereby extend and postpone the time of payment of the principal sum until February 24, 1879, interest to be paid thereon at the rate of nine per centum per annum; and in consideration thereof Cyrenius Beers agrees to pay the principal sum on ly to this effect, that if the instrument refer not to the power and can have some effect by means of the interest of the party, though not all the effect which the words seem to import, still the instrument shall not operate as an execution of the power, the intention being thus contravened. It appears quite clear, however, at this day, and a reference to the authorities will, it is apprehended, show that it has been considered clear for nearly two centuries that the rule is not thus confined; indeed, it may well be asked why, admitting that the intention can be discovered to pass all, the intention should not prevail in the one case as well as in the other? What rule of law or construction would be thereby violated?" Chance, Powers, sec. 1597, Vol. 2, p. 72, Lond. ed.,1831. And Sir Edward Sugden said: "And notwithstanding Sir Edward Clere's Case, an intent, apparent upon the face of the instrument, to dispose of all the estate, would be deemed a sufficient reference to the power to make the instrument operate as an execution of it, inasmuch as the words of the instrument could not otherwise be satisfied." 2 Sugd. Pow., ch. VI., sec. VIII., p. 412, 7th Lond. ed. In the present case, as we have seen, the legal effect and meaning of the instrument cannot be satisfied without treating it as an execution of the powers under the will, for Cyrenius Beers, merely as debtor, as mortgagor and as owner of the life estate under the will of his wife, could not lawfully agree to keep in force and renew a mortgage upon the estate of which the appellants were devisees in remainder in fee. And in Sewall v. Wilmer, 132 Mass., 131-134, the Supreme Judicial Court of Massachusetts, in reference to a will made in Maryland, which was the domicil of the testatrix, but the provisions of which related to both real and personal estate situated in Massachusetts, held it to be a valid execution of a power contained in the will of her father, whose domicil was in that State, although it would have been otherwise, held in Maryland. Gray, C. J., said: "But in this Commonwealth the decisions in England since our Revolution, and before the Stat. of 7 Will. IV., and 1 Vict., ch. 26, section 27, have not been followed; the court has leaned toward the adoption of the rule enacted by that statute as to wills thereafter made in England, namely: that a general devise or bequest should be construed to include any real or personal estate of which the testator has a general power of appointment, unless a contrary intention should appear by his will; and it has been adjudged that the mere facts that the will relied on as an execution of the power does not refer to the power, nor designate the property subject to it, and that the donee of the power has other property of his own upon which his will may operate, are not conclusive against the validity of the execution of the power; but that the question is in every case a question of the intention of the donee of the power, taking into consideration not only the terms of his will, but the circumstances surrounding him at the time of its execution, such as the source of the power, the terms of the instrument creating it, and the extent of his present or past interest in the property subject to it." The Supreme Court of Illinois in the case of Funk v. Eggleston,92 Ill., 515, had the question under consideration, and in a learned opinion, in which a large number of authorities, both English and American is reviewed, discarded even the modified English rule of later date, and adopted that formulated by Mr. Justice Story in Blagge v. Miles, 1 Story,427, as follows: "The main point is to arrive at the intention and object of the donee of the power in the instrument of execution, and that being once ascertained, effect is given to it accordingly. If the donee of the power intends to execute, and the mode be in other respects unexceptionable, 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 oth-upon her estate, for the reason that it is upon er interpretation. If it be doubtful, under all the circumstances, then that doubt will prevent it from being deemed an execution of the powAll the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it should appear by words, acts or deeds demonstrating the intention." er. The rule as adopted by this court was tersely stated by Mr. Justice Strong in delivering its opinion in Blake v. Hawkins, 98 U. S., 315-326 [XXV., 139-141], in this form: If the will contains no expressed intent to exert the power, yet if it may reasonably be gathered from the gifts and directions made that their purpose and object were to execute it, the will must be regarded as an execution. After all, an appointment under a power is an intent to appoint carried out, and if made by will the intent and its execution are to be sought for through the whole instrument." In the case of Munson v. Berdan, 35 N. J. Eq., 376, it is said: "It is sufficient if the Act shows that the donee had in view the subject of the power." And in White v. Hicks,33 N. Y., 383-392, Denio, Ch. J., said: "This doctrine proceeds upon the argument that by doing a thing which, independently of the power, would be nugatory, she (the donee of the power) conclusively evinced her intention to execute the power." We cannot doubt that Cyrenius Beers, in the agreement of February 24,1874, intended to exert whatever power had been conferred upon him by the will of his wife to continue in force the mortgage to the appellee, as an incumbrance that supposition alone that it can have its due legal effect, Ut res magis valeat quam pereat; and by force of the rules which we have seen ought to govern in such cases, we hold that, if the agreement, as made, is within the scope of the power, it must be regarded as a valid execution of it. The question next to be considered, therefore, is, whether Cyrenius Beers was empowered by the will of his wife to consent to an extension of the time of payment of the mortgage debt, and a continuance thereby of the lien on the mortgaged estate. It is to be observed, in the first place, that he is made executor of the will, tenant for life for his own use of all the property of the testatrix, and trustee of the legal title. Whether his title as trustee is to be considered as a fee simple or for life, or a chattel interest only, it is not necessary to decide. Its duration is to be measured by the nature of the purposes for which it was created, and they include the power to mortgage, to sell and to re-invest in his own name as trustee. And it is not without significance, although of how much importance is not material, that the remainder in fee limited to the children of the testatrix, and which is described as a limitation of all the estate, of which the testatrix should die, seised or possessed, is subsequently referred to, as what shall remain after the death of the tenant for life, and after the exercise by him of the power of mortgaging or selling and re-in |