The question is as to tbe proper construe*445tion of the second clause of the will of Thomas Pool, which is .given above.
The widow did not ‘‘lay out the surplus fund in land,” and the cpiestion is, whether her failure to do so caused an intestacy as to the remainder of the surplus fund, or, whether it vested in Mary Jane. The next of kin of the testator insist, that it was a gift to the widow for life, with a power to invest the fund in land, and then to give the land to Mary Jaue; and that as the power was never executed, the legacy to Mary Jane fails. In behalf of Mary Jane it is insisted that it was not a general power simply, but a power coupled with a trust which vested in Mary Jane, and that it was not to be lost for the want of a trustee, and that the •Court will enforce it.
The learning upon the subject was well presented and will be found in the cases cited. We think, however, that the doubt as to the proper construction may be solved by transposing the parts of said clause, so as to read as follows: I also leave to my wife Lovey all the surplus funds, consisting of notes and cash and a county bond of $2,573.21, during her life, and after her death to be given to my niece Mary Jane; with the power to my wife to lay out the funds in land, in which event the land shall go to Mary Jane, as the fund itself would have gone.”
With this reading, it is plain that the remainder in the surplus fund would go to her if the investment had been made. We think that this is the proper construction of the ■clause, and that the remainder in the surplus fund vested in Mary Jane, whether laid out in land or not. We would so ■construe the clause unaided by extrinsic circumstances; but we are further induced to it by the considerations, (1) that it appears from the whole will that Mary Jane was the principal object of the testator’s bounty (after his wife,) and we can not conceive why the testator desired her to have it if *446converted, into land, and to lose it if not converted. The only reason suggested at the bar was, that it might he to guaní against improvident marriage; hut in other parts of his will, he gives her not only land, hut very large legacies in persona1 property. If he desired that she should have it in land only, it would have been easy in him to make it imperative on his wife to make the investment, instead of leaving it discretionary with her, as his language clearly indicates. (2.) There is nothing to indicate that the testator intended to' die intestate as to any portion of his estate.
There was no error in sustaining the demurrer, which referred to the second clause, hut there was error in dismissing the bill. The plaintiffs are entitled to an account, if they desire it, and if there are other questions they will arise upon exceptions to the account.
Per, Curiam. Order accordingly.