¶1The question involved in this case is whether Frederick Arleth, by bis will, made such a disposition of the -property left him by the will of his wife Louise Arleth, as by said will he was authorized to do.
¶2Louise Arleth, by her will, says, “And as-to the fee simple or absolute title thereof, it is my will, and I do direct andTequire him (Frederick Arleth) by deed or -will to convey, give or demise the same to and among the’ heirs of his body, … in such.parts and proportions, and by such title as he may deem best.”
¶3By the fourth item of the will Frederick Arleth gave to his daughter-Eliza Arleth, her successors, heirs and assigns, the balance of the estate left him by his wife, in trust, to hold for five years after his death, with power to rent, lease, repair and dispose of in any manner, and for any price and upon any terms, without bond, as she or her successor might see fit, and at the expiration of said term of years to divide and distribute among certain designated persons, in certain sums as he has pointed out.
¶4In doing this, we think he did not act in accordance with the power given him under the will of Louise Arleth. He was.required by deed or will to dispose of the fee simple or absolute title among certain persons. This he has not done. The fee simple, or absolute title, he has given to a trustee, with power by deed to dispose of the property, and the proceeds she is to dispose of as he directs; in other words, he has clearly delegated to another, to do that which he only was authorized to do. This he could not do, and what he has attempted to do by item four of h’is will is, we think void.
¶5The petition of the plaintiff asks for an order of the court to sell the real estate that passed by said item four. This the court can not grant, and the same will therefore be dismissed.
¶6This decision in no wise conflicts with the former decision of this court, wherein this court held that it had no power, in a suit in equity brought for that purpose, to declare this will void, the parties not being in possession.