RUGER, Ch. J.

The material questions in this case are: First, whether Mary Livingston De Peyster took an estate in fee under the deed to her from J. Watts De Peyster and his wife in certain premises in the city of New York, or whether such estate was a life estate merely, with remainder in fee to the issue of the said grantee and her husband, Frederick De Peyster, Jr., and second, whether in the latter event there has been a valid execution of the power contained in the deed authorizing the said Mary to sell and convey the property in question and invest the proceeds for the purposes described in the instrument. While the title of two parcels of land, transferred by separate conveyances, is involved in this controversy, it will be convenient to speak of but one, as we think neither the intent of the grantor, as indicated by the language used or the principles of construction applicable thereto, can be distinguished by any material circumstance.

The questions involved are to be determined by a consideration of all of the provisions contained in the deeds, with a view of arriving at the intent of the grantor in executing the conveyance. The rule governing controversies between grantor and grantee, by which the language of a conveyance is required to be taken most strongly against the grantor, has no application when the dispute occurs between parties claiming under the same conveyance, and who are each entitled to the benefit of the same rule of construction. Here the simple question is, to whom did the grantor intend to convey the property described. If the disposition which the owner of property desires to make does not contravene any positive prohibition of law, his control over it is unlimited, and the only office which the courts are called upon to perform, in construing his transfers of title is to discover and give effect to his intentions. In the case of repugnant dispositions of the same property contained in the same instrument, the courts are from necessity compelled to choose between them; but it is only when they are irreconcilably repugnant that such a disposition of the question is required to be made. If it is the clear intent of the grantor that apparently inconsistent provisions shall all stand, such limitations upon, and interpretations of, the literal signification of the language used must be imposed, as will give some effect if possible to all of the provisions of the deed. ( Salisbury v. Andrews, 19 Pick. 250; Norris v. Beyea, 13 N.Y. 273; Jackson v. Blodget, 16 Johns. 178.) "It is a cardinal rule in the construction of contracts, that the intention of the parties is to be inquired into, and if not forbidden by law, is to be effectuated, and whenever the language used is susceptible of more than one interpretation, the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and of the subject-matter of the instrument." ( French v. Carhart, 1 N.Y. 102.) This rule is now, by statute, made imperative upon judicial tribunals and cannot be evaded, when the intention of the grantor is made clearly apparent by the language of the conveyance. (3 R.S. [7th ed.] 2205, § 2.)

Guided by these rules the effect of this conveyance is easily and surely determined. The declaration in the deed that the property conveyed was to be regarded as an advancement upon the share of the grantor's son in his estate, and that it was conveyed to the wife instead of the son, indicate that the arrangement was regarded in the light of a settlement upon the family of Frederick De Peyster, Jr., and repels the idea that it was intended to confer an absolute estate upon the grantee therein named. This view is further strengthened by the provisions intended to guard the corpus of the property conveyed from diminution while in the possession of the grantee, and the requirements that either the same property, or in case of its sale by the grantee during her life, its proceeds upon her decease, should be conveyed unimpaired to the issue of the grantee and Frederick De Peyster. The intention of the grantor that Mary Livingston De Peyster should enjoy only the rents, issues and profits of the property conveyed during her life is unmistakably expressed in the conveyance and seems to require that such a construction should be given to the instrument as will effectuate that intention; although the granting part of the deed would seem to import a conveyance in fee, and a consequent repugnance between that estate and the remainder subsequently provided for, yet when the whole instrument is considered together, the apparent repugnance is obviated by the express declaration that the form of the grant was adopted for the purpose, only, of enabling the grantee to sell and convey in fee-simple the property described. The same repugnance, and no greater, occurs in all conveyances of property in trust, whereby the title is vested in trustees, but is made subject to the particular object defined in the subsequent clauses of the grant. Here the interest, which the grantee was to take in the premises, was clearly intended to be limited by the provisions inserted therein, requiring her to invest the entire proceeds of any sale of the property, either in real or personal securities, and the covenant by which she was upon her decease required to convey either the property itself — or the securities, in which its proceeds were invested to her issue. The circumstance that the ultimate disposition of the property was attempted by the grantor to be secured by a covenant does not in any degree impair the significance of the language used — as indicating his intent to direct such disposition. A construction, that gives Mary Livingston De Peyster an absolute estate in fee in the land, renders the clause declaring the grantor's intent in making it unmeaning and absurd, and constitutes a violation of the rule requiring effect to be given to every part of the instrument. No question could have arisen over this instrument except for the use of inappropriate words on the part of the conveyancer in describing the method of transmission, of the title from the grantee to her issue. The intent that the property should pass directly from the mother to such children as she should have by Frederick De Peyster, Jr., is expressed in clear and unambiguous terms, although the method of accomplishing this result is made impossible — if we are controlled by the letter of the deed. The covenant requiring the grantee upon her decease to convey the property to her issue is ambiguous and inappropriate. If construed according to its literal signification the physical capacity of the grantee to convey would have expired, upon the happening of the same event, which required her to execute the transfer of the title.

It is evident, therefore, that the grantor did not intend that which the letter of his grant imports, and rules of interpretation are necessarily invoked to give effect to his intention.

If the grantor had intended that the children of Mary and Frederick De Peyster should take the property through an affirmative transfer from his grantee, it would naturally have been provided for through a testamentary devise, but this method of transfer is not referred to in the deed. A power to convey by deed alone, cannot be executed by a testamentary devise, even though the estate is not to take effect until after the death of the party executing the power. (3 R.S. [7th ed.] 2192, § 116.) It is probable that the grantor anticipated the certain conversion of the real estate into personal property during the life of the grantee, in which event the language used would be less inappropriate than as applied to the property described in the deed. Neither is it probable that he was either ignorant or unconscious of the laws of descent and distribution while framing his deed, and therefore realized that all of the children of his grantee would, upon her decease, inherit her real, and be entitled to a distributive share of her personal estate, without the intervention of any conveyance, and that such a result could have been jeopardized or defeated only by her voluntary act in incurring debts, or making by deed or will a contrary disposition. The grantor probably also contemplated the possibility of a second marriage by his grantee, and the birth of issue not of his own blood, who might, in case the property remained undisposed of, be entitled to share in the estate of their mother upon her death. He, therefore, inserted the covenant in question, probably as a security that neither the property nor its proceeds should be diverted from his own mediate descendants. Whatever construction is given to the instrument, the grantee still takes all of the interest which the grantor intended to confer upon her, and by confining her estate to that of a life tenant only, as is clearly contemplated by the deed, a door is closed against the possible defeat of the expressed intention of the grantor to transmit the corpus of the estate to his own descendants. ( Goodtitle v. Bailey, Cowp. 600.)

If it be held that she takes the fee of the land, the covenant in the deed would restrain her from impairing the principal of the estate during her life, and if her interest is adjudged to be a life estate merely, she would of course be entitled to enjoy its rents, issues and profits during her life.

We think that a construction which gives to Mary Livingston De Peyster a life estate, only effectuates the design of the grantor, and is abundantly supported by authority. ( Jackson v. Myers, 3 Johns. 387; Moore v. Jackson, 4 Wend. 68; French v. Carhart, 1 N.Y. 96; Post v. Hover, 33 id. 593; Hunt v. Johnson, 44 id. 27; Saunders v. Hanes, id. 354; Terry v. Wiggins, 47 id. 512; Wager v. Wager, 96 id. 164; Smith v. Bell, 6 Peters, 68.)

The grantee having died without exercising the power of sale conferred upon her, and issue having been born to her and Frederick De Peyster, a valid remainder was created in the property conveyed, which became vested upon the birth of such issue.

The only subject of inquiry remaining is, whether the power to sell the property and invest its proceeds, given to Mary Livingston De Peyster by the deed, has been properly executed by her. No other execution of it is claimed than that attempted to be delegated to her executor, by her will.

A brief examination of the several provisions of the deed will show that this delegation, did not constitute a valid exercise of the power. It will be observed, that while the power to sell is directly implied, careful provisions are also inserted for the disposition of the proceeds of the sale. They are to be immediately invested in real or personal property, and the principal is to be conveyed unimpaired to the issue upon the decease of the grantee of the power. It appears, therefore, that its exercise after the death of the grantee was impliedly forbidden, and she was given no eventual disposing power over the property conveyed. Her interest is confined to the enjoyment of the rents, issues and profits during her life.

These provisions do not constitute either of the expressed trusts permitted by the statute, and are, therefore, ineffective to create such an estate, but do contain an authority to do an act in relation to lands which the owner might himself lawfully perform, and there being other persons than the grantee entitled to the benefits, if any there are, derivable from the performance of the act, it takes effect as a power in trust. (3 R. S. [7th ed.] 2188, §§ 74, 95; Russell v. Russell, 36 N.Y. 581; Delaney v. McCormack, 88 id. 174.)

This power is a general power, since it authorizes the grantee to convey the property to any alienee whatever (§ 77), but it is neither imperative nor beneficial, since its exercise is left altogether to the discretion of the grantee, and other persons than herself are to be benefited by its execution (§§ 79, 96). While the absolute power of disposition is vested in the donee, yet under the statute the express directions given for the investment of the proceeds, and the limitations imposed upon her authority to control its ultimate destination, show that it was not a power to be executed for her sole benefit, and the creation of a fee in the grantee of the deed, by implication, is therefore precluded (§§ 81, 85).

The interest which the heirs in remainder took in the described estate, did not at all depend upon the execution of the power, and they, therefore, had no interest in having it executed, their only concern in the subject relating to its wise exercise, whenever the donee should in her discretion, choose to avail herself of the authority conferred. As no duty is imposed by the deed upon the grantee to execute the power, so no authority is conferred upon the courts to compel its execution, and the subject of a sale is left to the sole discretion of the donee.

No right to the selection of the objects of the trust, is attempted to be given to the grantee, but the persons who are to take the estate are designated by the deed, and remain the same whether the power be executed or not.

It would seem, therefore, that the power was simply one of trust, to be exercised only when, in the judgment of its donee, the prudent and profitable management of the property, required its exchange into some safer or more remunerative investment. The exercise of the power was intended for the benefit of the owners of the ultimate estate, as well as for that of the life tenant, and could be exercised or omitted at the mere discretion of the donee.

The terms of the power confer its exercise upon the donee alone, and being a trust to sell lands and invest the proceeds, it was purely a discretionary power, whose execution could not be delegated to another, or restrained or enforced upon the application of any of the parties. ( Newton v. Bronson, 13 N.Y. 592; Lewin on Trusts, 296; Mayor of N.Y. v. Stuyvesant, 17 N.Y. 42; Perry on Trusts, 287, 408.)

The power, and the trust connected therewith, necessarily determine upon the death of the grantee, and the property after that event went to the remaindermen, discharged of any authority over it by any person whatsoever.

It follows from these views that the title of the plaintiff derived through a deed from the executor of Mary L. De Peyster alone was defective, and justified the defendant in refusing to accept the conveyance tendered.

The judgment of the General Term should be reversed, and judgment absolute ordered for the defendant, with costs.

All concur, except FINCH, J., not voting.

Judgment accordingly.