Appeal from a decree of the Circuit Court for Montgomery County where the following opinion was rendered by JAMES B. HENDERSON, J., and concurred in by McSHERRY, C.J.

Samuel Jones, late of Montgomery County, died in 1891, having on December 30th, 1890, made and duly executed a last will and testament which contained, among other things, the following provision: "I give and bequeath to my wife, Cecelia S. Jones, after my debts have been paid, all my property, real and personal, to have and to hold during her life and to will to my children as she thinks proper, at her death." Mrs. Cecelia S. Jones died in January, 1902, having on the 28th of April, 1899, made and duly executed a last will and testament, in which she undertook to execute the power of appointment conferred upon her by the will of her husband, by the following provision: "In pursuance and in execution of the power vested in me under the last will and testament of my husband, Samuel Jones, late of said county, deceased, which said last will is dated December 30th, 1890, and is of record in the office of the Register of Wills of Montgomery County, in Liber R.W.C., No. 15, folio 412, I give and devise to my sons, Samuel M. Jones and Wm. K. Jones, and my daughter, Margaret A. Jones, share and share alike, in fee-simple, all of the real estate, wheresoever situated, of which my husband, Samuel Jones, died, seized and possessed, or was in any wise entitled to, subject to the payment by them to my daughter, Catherine J. Allder, of the sum of one thousand dollars in four equal installments, payable without interest, in one, two, three and four years from the date of my death; and in further execution of the power vested in me by the will of my said husband I give and bequeath all the goods, chattels and personal property of which my husband died, possessed or was in any wise entitled to, to my daughter, Margaret A. Jones, and my son, William K. Jones, share and share alike."

The question to be determined in this case is whether this provision of Cecelia S. Jones is a valid execution of the power created by the will of her husband, Samuel Jones. The respective contentions have been presented with marked ability and we are much indebted to counsel on either side for the light thrown upon the question at issue by the clear and forcible arguments made and the authorities cited.

It is contended by the learned solicitors for the plaintiff that the discretion committed to, and confided in, the donee of the power is confined to the subject of the contemplated appointment and does not extend to the objects thereof; and, for the purpose of this case, this contention is conceded by the defendants. In other words, they assert that it is not necessary to the successful maintenance of the issue on their part that the discretion to be exercised by the donee of the power should be determined to refer to anything else than the subject-matter of the appointment. On the face of the power under consideration there would seem to be no limit to the discretion of the donee with reference to the quantum of the estate or interest to be given to each appointee, except that imposed by the rule of law which prohibits illusory appointments, assuming that such rule obtains and would be enforced in this State. She was to will the property to the children of the donor as she thought proper. No allegation that the bequest in favor of Mrs. Allder is an illusory gift is made in the bill, nor was such a contention presented at the argument. Indeed, so far as anything to the contrary is disclosed by the record, the sum of one thousand dollars secured to her may be equal to, or even more than one-fourth of the entire estate. No question, therefore, of any attempted fraud upon the rights of the appointee, or willful perversion of the intention of the donor can enter into the decision of this case.

Assuming, without deciding, that each one of the children of Samuel Jones was, under the power we have quoted, entitled to some substantial provision for his benefit under the will of the widow, the will of Samuel Jones very closely resembles that of James Cathey, which is discussed in Cathey v. Cathey, 9 Humphreys, 470. In that case, the clause creating the power is as follows: "I give and bequeath to my beloved wife, Honor B. Cathey, all my property, both real and personal, for her to divide among my children as she may think best." No attempt to execute this power was made by Mrs. Cathey, either in her lifetime or by will, but the Supreme Court of Tennessee in discussing this power, say, "The time for a distribution is left to the discretion of Mrs. Cathey. She might have made it forthwith, if she had chosen, but she had the right to enjoy the property during her life and give or divide it by her will. Although the children of James Cathey, as a class, took a vested interest in the property, and of course, each of them took a vested interest, yet the quantum each one took remained uncertain until Mrs. Cathey should make the division; for, although she was required to divide among all the children, she was not required to make them all equal."

So, in the will under consideration, the words, "to will to my children as she thinks proper," necessarily import that the donee of the power was to have some discretion in the division of the testator's property, which was the subject-matter thereof, and it is impossible to see how such discretion could be freely and fully exercised unless it includes the right to make an unequal distribution. In fact, we do not understand that this right is questioned.

The real substantial contention made by the bill and in the argument is, that the charge on the real estate devised by Mrs. Jones to the other three children, of one thousand dollars in favor of Mrs. Allder is not a bequest of an interest in the estate of Samuel Jones; that it is not the gift of an integral part of his estate, and for that reason is not a valid execution of the power. It must be apparent to the most casual consideration of the question that this is an extremely technical objection. By the terms of the devise of Mrs. Jones, the real and personal property are blended and treated as a whole. There is nothing in the power that requires her to will to each child a part of the realty and also a part of the personal property, or that would prevent her from giving to each child that portion of the estate which she, in the exercise of the discretion vested in her, might determine he should have either in real or personal property, as she might think proper. The donee of the power was the wife of the testator, in whose judgment and discretion it is manifest from this and another provision of the will to be hereafter averted to, he had the utmost confidence. It is probable he contemplated what actually occurred, namely, that she would survive him quite a long period of time. In the meantime, changes in the condition and value of his estate and in the position and circumstance of the beneficiaries of the power would probably occur. It was his desire to place his widow in a position to meet the exigencies that might arise from these changed conditions, that doubtless suggested to him the propriety and expediency of giving her a free hand in the disposition of his property among his children. In a subsequent clause of his will he says, "I desire my wife to carry on the farm and not to sell it unless she can get a big price for it." It is clear from this, that in the event of the obtention of a large price for the farm, the conversion of his real and personal estate into money would have done no violence to the wishes of the testator. Now, suppose the proper authority had been invoked, and this conversion had been effected and the purchase-money for this property had been evidenced by a series of notes secured upon the farm, and in the execution of the power, these notes had been bequeathed to the children of Mr. Jones and one of them, for a substantial amount, had been left to Mrs. Allder, and the executors of Mrs. Jones had been directed to transfer it to her. Could it be contended that such a disposition of the estate would not have been a valid execution of the power, although the note given to Mrs. Allder may not have matured at the time of the death of her mother? And if not, is there any material difference between the bequest of a note so situated and this legacy charged on the real estate by the express provision of her will. In the power we are considering, there is no restriction upon the donee other than the requirement to appoint the entire estate; to will all the property, real and personal. Within this limitation the amount and character of the interest to be given each appointee is left to the discretion of the appointor. Torrance v. Torrance, 4 Md. 11, is authority for the position, that in the exercise of such a power, the quantity and quality of the estate to be devised are matters entirely in the discretion of the donee. And no less eminent authority on powers than Mr. Sugdon, has said that: "There is no magic in words. Estate or estates mean quantity of interest and a rent charge is clearly a portion of the entire interest in the land. Such a determination, therefore, would be authorized as well by the spirit as the words of the law." Sugden on Powers, sec. 490. But we are not without direct authority upon the precise question raised. In the case of Darling v. Edson, 4 Pa. Superior Court Reports, 498, it was held that a legacy charged upon land was a valid execution of the power to divide an estate by will. This is not a decision of the Court of final resort in Pennsylvania, but it is an adjudication by a Court of respectable authority, made in a case in which five Judges sat, all of whom concurred in the decision, and the losing parties seem to have been so well satisfied with the reasons given for the conclusion reached, that no appeal was taken. And, indeed, that Court found ample support for its decision in the text writers of approved authority and in the English precedents. In the cases of Thwaytes v. Dye, 2 Vernon, 80, and Ricketts v. Loftus, 4 Younge Collyar, Exch. 515, it was decided that the appointment of a rent charge, was a valid execution of the power to appoint a share of an estate. In the case of Kenworthy v. Bate, 6 Vesey, 793, it was held that the power to appoint real estate was well executed by a devise to trustees to sell and the appointment of the money produced by the sale. In the case of Roberts v. Dixvell, 2 Equity Cases Abr. 668, where the limitation was to such of the children of the marriage, for such estates, and in such shares and proportions as the husband and wife of the survivor of them should appoint, it was held that the devise of the entire estate to the son, subject to a charge in favor of his sister of three thousand pounds, and fifty pounds a year for maintenance until she attained the age of twenty-one years or married, was a good execution of the power.

And in the case of Crozier v. Crozier, 2 Conner Lawson, 294, where by a settlement on the marriage certain fee-simple lands were conveyed to John Crozier for life, and after his death to such of his children by his wife Catharine, as he should by deed or will appoint, and to their heirs and assigns, and in default of such appointment, to the children equally, John Crozier, having had several children, devised these lands and others to his wife for life upon conditions that she should maintain, support and educate the children and after her decease to his son John upon the same condition, it was held that while the gift to the wife was void, the trust in favor of the children was valid.

It is true that in all the cases referred to the language defining the discretion is comprehensive and specific; but in the will of Mr. Jones, if it be conceded that the discretion to be exercised by his widow is to be restricted to the subject of the appointment and does not extend to its objects, it is impossible to perceive how proper efficacy can be given to the words "to will to my children as she thinks proper" unless she is to be allowed in her distribution of the estate of her husband the utmost latitude consistent with the rule against illusory appointment.

Nor do we think that the fact of the postponement of the payment of the legacy to Mrs. Allder for a considerable time subsequent to the death of Mrs. Jones, tends to invalidate the appointment. In the case of Darling v. Edson, supra, the legacies to two of the sons were made payable, one-third in one year, and the balance in three years after the death of the testatrix, and in the opinion of the Court, this mode of payment is specially referred to and sanctioned. And in several of the English cases, the payment of a part at least of the provision made for the appointee, was deferred for a considerable length of time after the death of the appointor. This contention of the learned counsel for the plaintiff also ignores the well recognized distinction between the time of the vesting of the title to an estate or interest, and the period of its possession or enjoyment. Tayloe v. Mosher, 29 Md. 454; Dulaney v. Middleton, 72 Md. 75; Von Der Horst v. Von Der Horst, 88 Md. 127. There can be no question that Mrs. Allder's title to this legacy vested immediately upon the death of Mrs. Jones. She has the absolute and immediate right to dispose of it as she thinks proper, and should she die before the time for its payment arrives, her right to it would pass to her legal representatives, legatee or assignee.

Conceding to Mrs. Jones the amount of discretion in the distribution of this estate which we think must be allowed her in the execution of this power, we can see no reason why this feature of the appointment, which is a mere subordinate detail should be permitted to completely destroy its validity.

The cases of Myers v. Safe Deposit and Trust Co., 73 Md. 413, and Smith v. Hardesty, 88 Md. 387, cited by the plaintiff's counsel, are clearly distinguishable from the case at hand. By the express terms of the will of Charles Myers, immediately upon the death of his wife, all the residue of his property, i.e., the absolute and unqualified estate, was to pass to and become the estate and property of such of his children and grandchildren or either, as she, by her last will and testament, should nominate and appoint. In that case this discretion was restricted to the objects of the appointment. Having made the authorized selection, she had no right or power to give to the person or persons, so selected, anything less than an absolute estate. In this case the discretion is to be exercised upon the subject of the appointment, and Mrs. Jones had the right to carve it into as many and as different kinds of estates or interests as she thought proper, provided in so doing she disposes of the entire estate, and willed it to the children of Samuel Jones.

All that was decided in the case of Smith v. Hardesty, is, that under the power to devise to the child or children of the donor, the donee had no power to devise the property to a grandchild and charge the estate so devised with the payment of a legacy to the appointor's sister.

We have been able to reach no other conclusion, than that the provision in the will of Mrs. Cecilia S. Jones, we have quoted, is a valid execution of the power vested in her by the will of Samuel Jones and we so determine.

The bill of complaint must therefore be dismissed.