It is too plain for argument that the power of appointment conferred upon Mrs. Reid does not vest an absolute estate in her. She and her husband are joint tenants for life with a power of appointment in the former. If she fails to execute this power and her husband survives, he takes the property for life, and then it goes in remainder to the children. By the terms of the deed the wife’s power of appointment, during the life of the husband, can only be exercised by “her last will and testament,” and it is well settled, says Chancellor KENT (4 Com., 330), “that the conditions annexed to the exercise of the power must be strictly complied with, however unessential they might have been if no such precise direction had been given. They are incapable of admitting any equivalent or substitution; for the person creating the power has the undoubted right to create what checks he pleases to impose, to guard against a ten*348dency to abuse. The Courts have been uniformly exact .on this point.”
Although a will made in execution of a power is not strictly a will, but simply a declaration of a use, yet it so far retains the properties of a will as to be ambulatory until the death of the testator, and consequently revocable in the same manner as an ordinary testamentary instrument. 2 Sugden Powers, 14.
It must follow, therefore, that the execution of a will by Mrs. Reid in favor of the defendant purchaser is not a performance of the plaintiffs’ contract to convey to him an indefeasible estate in fee.
It is insisted, however, that the covenant of Mrs. Reid not to revoke the will, operates, in some manner, to take away the power of revocation, and that the will and covenant together are sufficient to vest an acceptable title to the land in the purchaser.
In Whaley v. Drummond, Ch. Easter Term, 1745, M. S., Lord Hardwick e said that “a power to be executed by will cannot be executed by any act to take effect in the life-time of the donee;” and to the same effect is 4 Kent Com., 331, and the general current of authority.
If, then, the will and covenant are sufficient to vest a present indefeasible fee in the purchaser (and he can be required to accept none other), the principle above stated will be contravened, and that which is clearly forbidden to be done directly will be permitted to be done indirectly.
Such, in our opinion, is not the law, and we are not surprised that the researches of the plaintiffs’ counsel have resulted in a failure to discover any authority in support of his contention.
There is no error in the ruling of the Court that the plaintiffs had not performed their contract to ext cute to the defendant a valid title to the property.
Affirmed.