delivered the opinion of the Court. Appeal from a decree of the Probate Court of this county, granting a license to the appellee, as administrator, cum testamento annexo, of the estate of Daniel Earned deceased, to sell and dispose of so much of the real estate of the testator, as should be *342sufficient to reimburse certain sums of money, either paid by the appellee, or which he is called upon to pajr, as deots incurred, or sums paid, for the comfortable support and maintenance of Rebecca Earned, widow of the testator, now de ceased.

Upon the construction of this will, it has been contended in support of the decree, that the provision in the will is in the nature of a legacy, and devolves a duty upon the administrator cum testamento annexo. But we think it is impossible to put that construction on the will. It is a gift to her of the use and benefit of the real estate, and taken in connexion with the use of the word “ income ” afterwards, must be construed to be an estate for life, both in the real and personal property. The further clause “ should the income prove insufficient for her comfortable support, she to dispose of so much thereof,” &c., is a naked power, depending upon a contingency. The case of Stevens v. Winship, 1 Pick. 318, was one, where the terms of the gift were nearly the same, and the principle of that case decides the present. In order to the due execution of the power, the happening of the contingency is a condition precedent, and in addition to the contingency happening, the power must be executed in the lifetime of the person to whom it is given, and by himself personally.

It is not like the case where the comfortable support to a widow, child or other person, is deemed a legacy, because it is not in terms the gift of a comfortable maintenance to the widow, or a direction to the executor to support and maintain her, or any thing equivalent. It is a gift of the whole income of the real and personal estate, with a personal power depending upon a contingency, superadded. The non-execution of such a power cannot be aided, even by a court of equity ; but were it otherwise, it could give no validity to this license, anil a Court of Probate can grant license only to sell real estate for payment of debts and legacies.

But it has been contended, that as this power was conferred on the widow, and she at the time was appointed executrix, it may be deemed a power attached to the office of executor, and upon her renunciation of the office, the power devolved with the office upon the administrator of the will There is *343no doubt, that where a power is conferred upon an executor as such, and where the execution of such power is necessary to the purposes of the will, which are to be accomplished by the officer, it is to be considered as a power to the officer as such, and not to the person named as executor exclusively ; as where legacies are given, and the executor is empowered and directed to raise money to pay them by sale of the real estate. But this cannot be deemed a power of that description, because it was not to effect any purpose contemplated to be accomplished through the agency of an executor It was a power to the widow personally, and in her natural capacity, to provide for her comfortable support, in case the income of the property given should prove insufficient, by a disposition of a sufficient portion of the testator’s real estate for that purpose. And so the widow and her advisers must have understood the matter ; because, though she renounced the executorship from the beginning, and never assumed the office, yet she twice executed the power, by two several sales.

But if the principle could be established as contended for, it would not give efficacy to this decree, because the administrator with the will annexed would derive his power directly from the will, and would have no need of a license, and could not be aided by a license from the Court of Probate.

Decree reversed