Clay v. Chenault

108 Ky. 77 | Ky. Ct. App. | 1900

Opinion op the court by

JUDGE GUPPY

'Affirming.

Anderson Chenault, Sr., died in Montgomery county, after first making and publishing his last will, which was duly probated. Among the devisees were Waller and Anderson Chenault, Jr., to whom, among other things, were devised 275 acres of land in equal shares. Some time after the death of the testator, Waller Chenault died without having sold' his interest in the land devised; but by his will •he devised said land to his brother for life, with remainder to all the descendants of the testator, Anderson Chenault, except that the share that would otherwise go to W. O. Chenault should go to his children. After the will of said Waller was probated, the appellants instituted this' action, seeking a division of the land so devised to appellee, claiming that said land descended to them, and appellee. The appellee, by his answer, claimed to own said land for life, under the will of his brother, Waller, and set up and pleaded said will as- defense to appellants’ action. Appellants demurred to' the answer, as well as- moved to strike out so much of the same as pleaded the will of said Waller, which demurrer and motion was overruled by the court; and, appellants failing to plead further, their petition- was dismissed, and to reverse that judgment this appeal is prosr ecuted.

It is the contention of appellants that under the will of Anderson Chenault, Sr., Waller took, at most, only a defeasible fee in the land' in contest; that the will of his father provided that if said Waller died without living descendants, said land reverted to the other heirs of said Anderson. It is the contention of appellee that Waller was invested with the fee-simple title to the land. Appellee also contends- that the reference to the death of Waller in the will of bis father referred' to his death prior to the death of the testator.

It will be seen, from the will of Anderson Chenault, which is exceedingly voluminous, that he devised certain property to his wife for life, and also to his daughters for .life, with fee to their descendants, if any, and', if nene, their shares to revert or pass to his other children. The same provisions, in substance, were made concerning the property devised to his son W. O. Chenault. So much of the will as seems to have any bearing upon the question at issue herein is hereinafter copied. The.first reference is item 5, which is as1 follows: “I own about 2-75 acres of land, which embraces what is known as my ‘Peters’ Farm,’ and my land adjoining it, which tract of 275 acres lies in the vicinity of what is known as ‘Wilkerson’s Blacksmith's Shop,’ and) which tract of land I. give and bequeath equally and jointly to my two sons, Waller Chenault and Anderson Chenault, Jr.; and I charge them for said land at the rate ■Off sixty-six dollars and sixty-six and twodbirds cents ($66.66 2-3) per acre, and for which land at said price per acre my said two sons must be charged and account for in the settlement of my estate; but I reserve the right hereafter, if I think proper to do so, by a codicil here to require my said sons, if they sell said land, to reinvest the proceeds in other lands as I may direct. . . .”

Item 10 reads as follows: “If at the time of the’ death of any of my children they or any of them shall leave no child, children, or descendants of theirs then alive, then the land, and also any personal property I have devised them which they have not then received, is to revert back to my estate and to become a part and parcel thereof; and such' property as may revert 'back to my estate as is provided herein I give and devise in equal portions to such of my children as are then alive, and to the descendants of any that may be dead, — the descendants of those dead to ■take the share or part their parent would have taken if alive.”

Item 12 reads as follows: “The land I have devised to my sons, Waller and Anderson, they may hold jointly or divide it between them equally according to its quality, quantity, and yearly value.”

Item 15 reads as follows: “Whatever,, if anything, the land I have given my sons, Waller and Anderson, may lack of amounting at $66 2-3 per acre to $20,720, they are to receive interest on (that is, on the deficiency) from the date of my death until the date of the sale of the 150 acres, and this interest is to be paid out of the money arising from the sale of said 150 acres; and the charges I have placed upon the proceeds arising from the sale of said 150 acres are all to be paid before an equal division of the balance of said proceeds takes place between all my children.”

On April 14th the testator executed a codicil of considerable length to his will theretofore made. Item 2 of the codicil reads as follows: “I have recently had some trading and dealing with my two sons, Waller and Anderson Che-nauit, Jr., and in these transactions I have given and advanced to them jointly one hundred and eighty-two dollars and fifty cents ($182.50), and with which sum I charge them,, and they must account for it in the settlement of my estate; and, if, as is named in the 15th clause of my will, there may be any deficiency as therein indicated, then' the above $182.50 to be applied to its extent in making up such possible deficiency, as is also any other sums that I may pay, give, or advance to them hereafter, and for which I may hold their receipt, and these advancements are to be payments at the time they are respectively made on said possible deficiency, but no interest is to be computed on them, but they are to be deducted1 as of tbe date' of my death from such deficiency; but, if it shall turn out that there is no deficiency, then they are to be charged with and account for said advancement, or for any overplus that said' advancement may make in the aggregate over and above said possible deficiency. By the tenth clause of my will I do not mean or intend to prohibit my two sons, Waller and Anderson Chenault, Jr., or either of them, from selling the land I have devised to them, but I here give them or either of them the right, privilege, and power to sell and convey his part of said land, and make the purchaser a good title thereto; but if the proceeds arising from the sale of the land devised to them by me or to either of them shall at the time of the death of them or either of them be invested in other lands, and they or either of them at the time of their death shall leave no child, children, or descendants then alive, then the said land of both or either one in which said proceeds are invested is to revert back and become a part of my general estate.”

Section 2342, Kentucky Statutes, which is an exact copy of section 7, article 1, chapter 63, of the General Statutes, reads as follows: “Unless a different purpose appears by express word's or necessary inference, every estate in land created by deed or will, without words of inheritance shall be deemed a fee-simple or such other estate as the grantor or testator had power to dispose of.” It will be seen that item 5 is an absolute devise of the land in question, — ■ coupled, however with a reservation of power by the testator in a codicil to require the devisees, in the event of a sale of the land devised, to invest the proceeds in other lands in such manner as the testator might direct. This' reserve power seems never to have been exercised, but at most only a direction given as to the land in the event a sale and reinvestment should be made by the de-visees. It is provided in item 10 that “if, at the time of the death of any of my children, they shall leave no descendants alive, then the land, and also any personal property I have devised them which they' have not then received, is to revert back to my estate and become a part and parcel thereof. . . It is argued for appellee that this provision has reference to the death of the de-visee before the death of the testator. The above provision of the will is referred, to in item 2 of the codicil, and the meaning thereof to- some extent explained; and said devisees are clearly authorized to sell or pass a perfect title to. the land in question, with the further provision that if the proceeds arising from such sale shall at the time of the death of either be invested in other land, and the devisee shall have no descendants, then the said land in which said proceeds are invested is to revert back and become a part of the general estate.

It will be seen from the foregoing that the said devisees were invested with an unconditional power of sale and conveyance, without any requirement as to the reinvestment of the proceeds, and, beyond question, they could hae sold the land and passed a perfect title thereto, and used the proceeds for any purposes whatever, and in no event could any remainder ever be claimed unless the proceeds were then invested in land at the time of the death of the devisee. It will be seen from the item in question that the provision as to the remainder over in the event of the death of the devisee without issue is specifically confined to the land in which the proceeds of the land devised should then be' invested.

It is, however, the contention of appellee that the testator invested Waller Chenault with the fee simple, and that any attempt to control or limit'the disposition of the land is repugnant to the fee, and therefore invalid, and we are referred to various authorities in support thereof, it is said in section 270 (12th Ed.) 4 Kent. Comm., that: “At law the grant of a term to a man for life would have been a total disposition of the whole term. Nor can an exe-cutory devise or bequest be prevented or destroyed by an alteration whatsoever in the estate out of which, or subsequently to which, it is limitéd. The executory interest is wholly exempted from the power of the taker. If, therefore, there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A. in fee, and if he dies possessed of-the property, without lawful issue, the remainder over, or remainder over the property which he, dying without heirs, should leave, or without selling or devising the same, — in all such cases the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate or power of disposition expressly given oh necessarily implied by the will.” The question under consider-, ation seems to have been decided in Jackson v. Bull, 10 Johns. 19. It appears that Charles Bull by his last will devised to his son Moses -and to his heirs and assigns, forever, certain property. In another part of the will, it is provided as follows: “In case my son, Moses, should die without lawful issue, the said property he died possessed of I will to my son, Young, his lawful issue,” etc. After the death of the testator, Moses entered into the possession of the property devised to him, and died- in possession thereof, without lawful issue, and devised his property to his wife, sister and half-brother. The court said in the opinion delivered: “The limitation over must be considered void, as applying to an indefinite failure of issue, by which the devisee would take an estate tail (with us is turned into an estate in fee), and is a question we need not now discuss; for it is void on another ground, as being repugnant to an absolute control over the estate which the testator intended to give.” The court cites with approval the case of Attorney General v. Hall, Fitz., 314; also, Ide v. Ide, 5 Mass., 500. The same question was elaborately discussed and decided by the supreme court of judicature of New York in Jackson v. Robins, 16 Johns, 582 et seq. It will be seen from an examination of the opinion that, in addition to a consideration of the validity of certain sales made under execution, it was-deemed necessary to construe the will of Lord Stirling. After discussing at length the validity of the sales under execution, upon grounds other than the meaning of Lord Stirling’s will, the court said:

“If Lady Stirling took an estate in fee under the will of Lord Stirling, then at her death Mrs. Neilson would have been entitled, as one of her heirs, to an equal, undivided moiety of all her interest in the premises. But, if Lady Stirling took a fee, then an adverse possession commenced when Harlow entered into possession under John Taylor, in 1794, and the statute of limitation began to run against her, for she was then under no disability. When the statute once begins to run, it continues to run until the twenty years have expired, and therefore not only Lady Stirling, but all who claim under her by will or by inheritance, were bound in 1814, and before the commencement of this suit. The question, therefore, as to what estate Lady Stirling took under the will, becomes material only by its influence upon this other question of the statute of limitations; and it was quite entertaining to see how industriously and profoundly tlie counsel were obliged to labor upon the one question merely to bring it to bear upon the other. This question is also supposed to have been decided by this court in the former cause of Jackson v. Delancy, 13 Johns., 537. But I apprehend that the decision of this court in that case does not rest at all upon this point, and I barely mentioned, in the opinion which I then delivered, that Lady Stirling did take a fee under Lord Stirling’s will, and that the devise over to his daughter, Oatlierine Duer, was not a good limitation by way of ex-ecutory deyisé. J relied for this upon the decision of the Supreme Court of Jackson v. Bull, 10 Johns., 19, and observed that nothing had been urged to show why that decision was not to be regarded as correct. It is that decision, then, and not the one in this court, which I think governs this question. If that decision be sound, then, according to the principle of it, Lady Stirling did take an estate in fee; and, notwithstanding all that has been said or suggested to the contrary in the court below (vide Page v. Lennox, 15 Johns., 171, 172), I am obliged still to be of the opinion that it was a well-founded decision. Suffer me for one moment to re-examine its foundations. ‘Reclit labor actus in orbem.' The -testator in that case devised to his son Moses, and to Ms heirs and assigns forever, a lot of land, and then added that, in case his son should die without lawful issue, the property he died possessed of he gave to his son Young Moses. The son did-die in possession of the property, and without lawful issue; but he devised by will to his wife and others, under whom the plaintiff claimed, in opposition to the devise to the other son. The counsel for the plaintiff contended that the limitation over by way of executory devise was void, because repugnant to the absolute power of disposal given by the will to Moses, w7ho was thereby enabled to defeat it. The court unanimously acceded to that principle, and cited authorities in support of it, and gave judgment for the plaintiff. The first case that the court then relied upon wTas that of Attorney General v. Hall, Fitzg., 314, decided in 1731 by Lord Chancellor King, assisted by the master of the rolls and Chief Baron Reynolds. Hall, the testator, owning real and personal estate, gave it by will to his son and to the heirs of his body, and, if he should die leaving no heirs, then he gave so much of the real and personal estate as his .son should be possessed of at his death to the Goldsmiths' Company, at London, for charitable purposes. A limitation over for such a purpose had strong claims upon the protection a court of chancery; and I hope that I may be excused for making, as a passing remark, that the will awakens interesting associations from another circumstance, which is that Sir Isaac Newton was one of the executors. The son alienated the real estate by a comm'on recovery, and bequeathed the personal estate by will to his wife, and died without issue. The question arose between the wife, claiming under the will, and the Goldsmiths’ Company, claiming by virtue of the limitation over on the event of the son dying without issue. The case was fully and ably argued, and there was no distinction made between the real and personal estate as to the validity of the limitation over. The court were unanimously of the opinion that the Goldsmiths’ Company had no valid claim, and the limitation over was void, because the absolute ownership had been given to the son; for the property was given to him and the heirs of his body, and the company were to have no more than he should leave unspent, and therefore he had a power to dispose of the whole. The words that gave him an estate tail in the land gave him the entine property in the personal estate, and nothing remained to be given over by the testator. The point of that case, then, was that where an estate is given to a man and the heirs of his body, with a power of disposal, at his own will and pleasure, it carries with it an absolute ownership, repugnant to any limitation over, and destructive of it. The court, did not make any distinction between the real and personal estate, and say that the limitation over was good as to one and void as to the other. They said generally that the limitation over in the will- was void, because the testator gave the son an unqualified power to spend the whole.

“The other case that the court relied upon in Jackson v. Bull was Ide v. Ide, 5 Mass., 500, decided in the supreme court of Massachusetts in 1805. There the testator gave by will to his son, and to his heirs and assigns, forever, certain real and personal estate, and then added that, if the son died without heirs, the estate which he should leave was to be equally divided between two other persons. The son did die without leaving heirs, and the question arose between those claiming the real estate under the limitation over and those claiming it under a conveyance from the son. The opinion of the court was delivered by the late Chief Justice Parsons, whose character as a lawyer and judge is held in universal reverence. He cited and relied upon the case of Attorney General v. Hall, and said, that: ‘Whenever it is the clear intention of the testator that the devisee should have an absolute property in the estate devised, a limitation must be void, because it is inconsistent with the absolute property supposed in the first devisee. And a right in the first devisee to dispose of the estate devised at his pleasure, and not a mere power of specifying who may take, amounts to an, unqualified gift.’ He then applied the rule to the case before him, and observed that ‘the absolute, unqualified interest in the estate devised was given to the son, which was inconsistent with the limitation over, and consequently by the limitation was void.’ The error in the case of Jackson v. Bull, said the learned counsel, was in applying the English case to the real estate, when it was applicable only to chattels. But the-supreme court of Massachusetts were then in the same error, for they equally so applied it. ‘The limitation over,’ says Chief Justice Parsons, ‘makes no distinction between the real and personal estate, operating only on such part of either as the first devisee should have.’ In both of those cases the devise was of real and personal estate in the same sentence, and the same limitation over was created as to each; and neither the English nor the Massachusetts court admitted any difference in the rule of construction, or in the operation of the power of alienation, whether applied to the limitation of the real or of .the personal estate.

“I do not know that either of those two last decisions has ever been questioned in any court or by any author. They were pronounced by the highest judicial authorities, and Lord Hardwicke, (1 Ves. Jr., 10), gives his sanction to the accuracy of the English case. Beachcroft v. Broome, 4 Term R., 441, decided in King’s Bench in 1791, is in confirmation of the doctrine of the prior case. That was the case of a devise to B and his heirs, and if he die without having settled or otherwise disposed of the estate, or without leaving issue of his body, then the devise over. B sold the premises in fee, and died without issue, and the question was whether the purchaser took an estate in fee, and the King’s Bench held clearly that he did. The decision is entirely conformable to the doctrine in Attorney General v. Hall and Ide v. Ide and Jackson v. Bull; but a single expression of Lord Kenyon is seized upon, and great reliance was placed upon it by the counsel for the plaintiff in this case. Lord Kenyon said (and it must have been in loose conversation on the bench) that, if the case had turned on the question whether that was an estate tail in B, he should have thought it extremely. clear that on failure of the first limitation the second ought to have taken effect as an executory devise. Perhaps the meaning of Lord Kenyon is not io be clearly understood. It was an observation not required by the decision nor applicable to the point; but, let it mean what it may, are we to permit such a loose remark to be of any weight or consideration, in opposition to the deliberate and solemn judgments of the courts? It is enough, I apprehend, merely to mention such a dictum, and then to pass it by in silence.

“If we now apply these cases to the will of Lord Stirling, we can not but be struck with their perfect and controlling application. He does, in the first place, devise- and bequeath unto his wife, Sarah, all his real and personal estate whatever, to hold the same to her, her executors, administrators, and assigns. This was a gift in fee. The word ‘estate.3 in a will, carries the land and all the testator’s interest in it. It is the germs generalis-sirmrn, said Lord Holt, (Countess of Bridgwater v. Duke of Bolton, 1 Salk., 236), and includes all things, réal and personal. The words ‘all his estate’ are, in a will, descriptive of his fee. And in a subsequent case (Barry v Edgeworth, 2 P. Wms., 523), the Master of the Rolls, referring to this opinion of Holt, said that the law was then settled on the point, and that the word ‘estate’ comprehended not only the thing, but the interest in it, and, if it liad been agreed and settled to convey a fee in a will, it would be dangerous to refine upon it. So, again, Lord Mansfield observed (Roe v. Harvey, 5 Burrows, 2638), that the word ‘estate,’ in a will, carried everything, unless tied down by particular expressions. And in a subsequent case (Holdfast v. Martin, 1 Term R., 411) Mr. Justice Buller said that the word ‘estate’ was the most general word that could be used, and the words of restraint must be added to make it carry less than a fee. And, lastly (for I will not fatigue myself with further citations on the point), Mr. Justice Patterson, of the Supreme Court of the United States, declared (Lambert v. Paine, 3 Cranch, 134, 2 L. Ed., 377), that the word ‘estate’ was the most general, significant, and operative word that can be used in a will, and it comprehends both the land and the inheritance. We may say, then, that Lord Stir, ling, by the first part of his will, gave an estate in fee to his wife. So he, also, repeated this gift of a fee, by the next clause in the will, when he admits expressly that she has the power and the right to give, devise, and bequeath, or sell or assign, the estate, or any part thereof.

This power, of itself, is an attribute of ownership, and carries with it a fee. Thus, as early as 6 Eliz., (Dalison’s Rep., 58), it was held by the judges that if a man devises land to his wife, to dispose of and employ it upon herself and her son, at her pleasure, she takes a fee. So, again, Lord Coke says (Co. Lit., 96) that if a man devises land to another, to give and to sell, this amounts to a devise in fee; for, in a will, the word ‘heirs’ is not necessary to create an estate of inheritance. There are many other cases to the same effect, which I need not particularly mention (Moore, 57; 2 Atk., 102; Jackson v. Coleman, 2 Johns., 391); and we may lay it down as an incontrovertible rule that where an estate is given to a person generally or indefinitely, with a power oí disposition, it carries a fee; and the only exception to the rule is, where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee notwithstanding the distinct and naked gift of a power of disposition of the reversion. This distinction is carefully marked and settled in the cases. Tomlinson v. Dighton, 1 Salk., 239, 1 P. Wms., 149; Crossling v. Crossling, 2 Cox, Ch., 396; Reid v. Shergold, 10 Ves., 370; Goodtitle v. Otway, 2 Wils., 6.

“The question then occurs, was the limitation over to Mrs. Duer valid, after the creation of such an estate in fee? The words of the will were that fin case of the death of his wife without giving, devising, and bequeathing by will, or otherwise selling or assigning the estate, or any part thereof, he doth give and devise all such estate as should so remain unsold, undevised, or unbe-queathed to his daughter, Lady Catherine Duer/ etc. This , limitation over must be as a remainder, or as an executory devise, and it is impossible that it should be either, upon any known principles of law. No remainder can be limited after an estate in fee, and therefore if a devise be to A and his heirs, and, if he die without heirs, then to B, the remainder is repugnant to the estate in fee, and. void. Preston v. Funnell, Willes, 164; Pells v. Brown, (Cro. Jac., 590, point 2.) Nor can the limitation over operate by way of executory devise, because the power to dispose of the estate by will or deed, which Lord Stirling gave to his wife, is fatal to the existence of that species of interest. It is a clear and settled rule of law that an executory devise can not be prevented or defeated by any alteration of the estate out of which or after which it is limited, or by any mode of conveyance. It can not be created and it can not live under such a, power in the first taker. ‘These limitations/ says Mr. Justice Powell (Scatterwood v. Edge, 1 Salk., 229), ‘make estates, unalienable, for every executory devise is a perpetuity, as far as it goes; that is to say, it is an estate unalienable, though all mankind join in the conveyance.’ Vide, also, 2 Fearne, Rem., p. 51, by Powell; 2 Saund., 388d, note. We are obliged, • therefore, to have recourse to the explicit and settled doctrine'in the cases of Attorney General v. Hall and of Ide v. Ide and of Jackson v. Bull, and say that an absolute ownership! or capacity to sell, in the first taker, and a vested1 right by way of executory devise in another, which can not be affected by such alienation, are perfectly incompatible estates, and repugnant to each other, and the latter is to be rejected as void. Lord Stirling clearly intended to give his wife an estate in fee. The words amount to demonstration of that intention. If she sold the land, she was not accountable for the proceeds. She could not be chargeable with waste, and she might mortgage or incumber the land, for that .is included in the right to give and sell and assign. And when he attempted to ingraft an executory devise or limitation over upon a fee, with such absolute power of control, he did what was incompatible with his other and principal intention, and which the courts must, of necessity, reject as repugnant and void. There is not a case to be found in which -a valid executory devise was held to subsist under an absolute power of alienation in the first taker. I have looked at the cases so industriously collected by the plaintiff’s counsel, and there are none of. them that reach this point. All executory devises may be said, in some degree, to depend upon the will or discretion of the owner of the .precedent estate. If a devise be to A in fee, but, if he die without issue living at his death, then over to B, it is hia volition and power -(morally speaking) not to marry, or to marry and have issue, and so avoid the devise over. So, if the limitation over be made to depend upon the contingency that the first taker marry without the consent of B or marry a prohibited person, he may undoubtedly avoid marrying without the requisite consent, or avoid marrying against the prohibition, and so defeat the limitation. But these distinctions have nothing to do with the simplicity and good sense of the general rule we are discussing. The first taker, in these special cases, has not an absolute discretion and free agency, within the meaning of the rule.' The sound doctrine on the subject is that an executory devise, under the salutary checks provided for it, is a stable and unalienable interest, and the first taker has only the use of the land or chattel pending the contingency mentioned .in the will, and he can not convert the property to his own use, and defeat the subsequent estate by a voluntary alienation. This is the rule for which we contend, and it was not so with Lady Sterling. She could give and devise and she could sell .and assign the estate when and to whom, and for what purpose, she pleased. She was a free moral agent, and an absolute and independent owner, in respect to the estate. This is what we understand by a right incompatible with an executory devise, and this is what we are' to understand by the books when they speak of a limitation over as being void, because inconsistent with such an absolute power and dominion in fee.

“But It is time that this discussion should draw to a close. The result of my inquiry is a belief that the de--fendant has a good title under the judgment and execution, and that, if he had not, he is nevertheless, protected by the statute of limitation, because Lady Stirling was seised in fee, so as to enable the statute to run against her, when the adverse possession commenced in 1794. ' Upon either ground, if correct, the judgment must be affirmed.- During the examination of this subject I have not been insensible to the weight of the inquiry, and more especially as one of the judges of the court below seems to think the law in favor of the claim. The counsel for the plaintiff, and one of them a son of a lessor of the plaintiff, have, indeed, labored the points in their argument annexed to the case, as well as’ at this bar, with a diligence and painful anxiety, and, no doubt, with a sincere conviction, that has excited my sympathy. The descendants of Lord Sterling appear to feel (that a rich inheritance has been injuriously snatched from their enjoyment, but I think it was fairly lost-by the inability or neglect of their ancestor or his representatives to redeem the incumbrance. And, if the law was with the plaintiff, wmuld not our sympathies be as properly directed to this defendant, whose father was a tona fide purchaser under-the execution, and cultivated the premises as his own for twenty years, and died in possession, and transmitted the fruit of his labor to his son? The truth is that judges are bound to declare the rules of law strictly, without regard to consequences. They must follow the conclusions of the understanding, and not the dictates of the heart. If the argument on the part of the plaintiff has made a more favorable impression upon others than it has upon me, I shall be perfectly contented. I am, however, obliged to say, as the case strikes me, that the law is with the defendant, and that the judgment ought to be affirmed. This being the unanimous opinion of the court, it was thereupon ordered, adjudged, and declared that the judgment of the supreme court be affirmed, and that plaintiffs in error pay to the defendant in error fifty dollars and fifteen cents for his costs and charges in and about his defense in this court, and that the record be remitted,” etc.

The same question was decided by the court of appeals of New York in Van Horne v. Campbell, 100 N. Y., 287, 3 N. E., 316, 771. We quote as follows:

“The precise question presented, therefore, for our determination, is whether an executory devise can be made to depend on the nonexecution by the first taker of an absolute, beneficial, disposing power vested in him by the will creating the limitation, or, in other words, whether there can be a valid executory devise where the execu-tory limitation is conjoined with an absolute power in the primary devisee to defeat and cut off the future estate or interest by alienation of the entire fee in his lifetime, and whether it makes any difference, as' to the rights of the ulterior devisee, whether the power has or has not been exercised. This question we may reasonably expect to find answered by the authorities, and, as we understand them, it is answered by an unbroken line of authorities in this State, and almost uniform course of decision elsewhere, against the validity of such limitation. If it ap. peared that the testator intended to confer upon the first devisee an absolute power of disposition, and in his will he afterwards made a gift over, the two dispojRions can not stand together. The absolute power of disposition shows that he intended to give an unqualified title to the first devisee, and it is in the nature of such title that the property, if not alienated by the owner, shall descend to the heirs if it be real estate, or go to the next of kin if it be personal. The gift over is repugnant to this quality of absolute ownership, and it is consequently void. It will be noticed that Judge Denio regarded the rule stated as alike applicable to devises of real and personal property. Tyson v. Blake, 22 N. Y., 563, was the cause of an executory bequest with a limitation over on the death of the primary legatee without issue, and is only important in the discussion as containing an express recognition of the doctrine of the prior cases that a limitation over is incompatible with an absolute disposing power in the first taker. Terry v. Wiggins, 47 N. Y., 512, was an action of ejectment, the title depending upon a devise in a will which took effect in 1862, of certain land to the testator’s wife, for ‘her own personal and independent use and maintenance,’ with power to sell the same, and a deyise over after her death of any residue, etc. The court construed the will as giving the wife a life estate only, with a limited power of disposition, and sustained the devise over on this ground. Allen, J., said, ‘The power of disposition is not absolute, so as to bring it within the rule making all devises with absolute power of disposition in the devisee, gifts in fee.’ And he further said that, if the devise to the wife had been a fee, the claim that the devise over was repugnant and void would have been well founded. The learned judge also referred to certain provisions of the Revised Statutes, and remarked that it was not material to decide whether the limitation over was a good executory devise at common law. Smith v. Van Ostrand, 64 N. Y., 278, involved the construction of a will which, as construed, gaye to the testator’s widow a sum of money during life or widowhood, with power to use so much of the principal as might be necessary for her support, with remainder to her. children. The court sustained the validity of the gift in remainder on the ground that the power of disposition was not absolute, but limited and conditional. Judge Rapallo said, ‘The cases sustain the proposition that where an absolute power of disposal is given to the first legatee a remainder over is void for repugnancy,’ and adds: ‘But they also recognize the principle that, if the jus dispon end i is conditional, the remainder is not r epug-nant. The power of disposition in the present case is only for a special purpose, — the support of the widow.’ Campbell v. Beaumont, 91 N. Y., 464, was an action for the construction of a will of real and personal estate, which took effect in 1876. The principal question was whether there was a valid limitation over of the real and personal estate, which in the first instance was given to the wife of the testator. The alleged limitation over was of the property, or such portion ‘as may remain,’ etc., after the decease of the wife. The court held that upon the construction of the whole will the fee in the real estate and the absolute interest in the personal property were given to the wife, and, further, that if the intention of the testator was to limit the estate over, the limitation' was void, as repugnant to the power of disposition. Danforth, J., said: ‘The gift appears absolute and entire in its terms. No child of the testator was to be provided for, and it better accords with decisions in this State to hold that, if a limitation over was attempted, it is repugnant and void,’—citing Jackson v. Bull, supra.

“The decisions in other States upon this question are equally uniform. Ide v. Ide, 5 Mass. 500, decided in 1809, by Chief Justice Parsons, is perhaps the earliest case in the country upon the subject. The action was ejectment. In that case the .testator devised real estate to his son P. his heirs and assigns, forever, and also bequeathed to him personal estate in words denoting a absolute interest, and in a subsequent clause declared, ‘And, further, it is my will that, if my son P. shall die and leave no lawful issue, what estate he shall leave to be 'divided between my son J. and- my grandson N.,’ etc. P. conveyed the land in his lifetime, and died leaving no issue. The court held that the limitation over was void for repugnancy to the disposing power, and on that ground decided the case for the plaintiff, making no reference to the fact that P. had exercised the power by a conveyance. The power of disposition was held to be implied from the words ‘what estate he shall leave.’ Melson v. Cooper, 4 Leigh, 408, decided by the supreme court of Virginia in 1838, was a case where a testator devised to his son W. and his heirs, and if he should die without a son, and not sell the land, then to the testator’s son G-. It was held, as stated in the head-note, that the devise gave W. absolute powTer to sell a fee simple, and, therefore, whether he sold or not, he took a fee simple, and the devise over was void. The same principle was declared in a prior case in the same State (Riddick v. Cohoon, 4 Rand., 547), where the power of disposition was held to be implied from the words ‘So much of the estate as may remain undisposed of.’ Cook v. Walker, 15 Ga., 459, involved the construction of a marriage settlement of real and personal property, which provided for the devolution of the property if the wife ‘should die intestate without making any disposition,’ etc. Lumpkins, J., in delivering the opinion of the court, said: 'We hold it to be an incontrovertible rule that whenever an estate is given in Georgia, either by deed or will, to a person generally or indefinitely, with "an unlimited power of disposition annexed, it invariably vests an absolute fee in the first taker, and that neither a remainder nor an executory devise can be limited on such an estate.’ The cases of Flinn v. Davis, 18 Ala., 132, and McRee’s Adm’rs vs. Means, 34 Ala., 350, declare the same rule. In Pickering v. Langdon, 22 Me., 413, it was declared that a gift over of real and personal estate, of 'wliat remains’ on the death of the first taker, was void; and in Ramsdell v. Ramsdell, 21 Me., 288, it was declared that the doctrine of Jackson v. Bull, supra, was the settled law. The doctrine that an absolute power of disposition in the first taker was fatal to a limitation over was also declared by the court of North Carolina in Newland v. Newland, 46 N. C., 463, and also by the courts of Tennessee in two cases. Williams v. Jones, 2 Swan, 620, and Davis v. Richardson, 10 Yerg., 290. After a somewhat diligent examination, T have been unable to find any decision in any court in this country adverse to the doctrine declared in Jackson v. Bull, supra, and I think it may safely be affirmed that the doctrine of that case is the settled law of the Amercian courts. I can not better conclude this review of the American cases than by quoting the words of Chancellor Kent in his Commentaries, written long after the decisions in Johnson, supra, and after the close of his judicial life. Speaking of executory devises (4 Kent, Com., 270), after stating that a valid executory devise must be indestructible by the first devisee. or taker, ho adds: 'If, therefore, there be an absolute power of dis* position given by the will to the first taker, as if an es. tate be devised to A in fee, and, if be dies possessed of the property without lawful issue, the remainder over, or remainder over of the property which he dying without heirs should leave, or without selling or devising the same, — in all such cases the remainder over is void as a remainder because of the preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate or power of disposition expi-essly given or necessarily implied by the will.’ See also, to the same effect, 2 Washb. Real Prop., 669.”

The opinion supra discusses the question at great length, and fully sustains the doctrine announced in Jackson y. Bull, and cites many decisions of various other courts.

The case of Ramsdell v. Ramsdell, 21 Me., 288, seems to be in accord with the cases already cited. We quote as follows from the syllabus: “The intention of the testator is to have a controlling influence in the interpretation of the language used in the will; but if' he would have that intention, when discovered, fully carried into effect, he must conform to those rules of law'which establish and secure the rights of property. It has become a settled rule of law that, if the devisee or legatee have the absolute right to dispose of the property at pleasure, a devise over is inoperative. An exception, however, to this rule is that where a life estate only is clearly given to the first taker, with an express power, on a certain event, or for a certain purpose, to dispose of the property, the life estate is not by such power enlarged to a free or absolute right, and the devise over will be good. The testator in his will provided: ‘First, I give and bequeath to my beloved wife, S. 0., the use during her life of all my plate and household goods; also, my personal property and real estate, except as is hereinafter excepted.’ Then made pecuniary bequests to several persons, to be paid by his executrix. Then says: ‘1 give and bequeath to my wife, S. C., the sum of one hundred and fifty dollars, to be paid, if she thinks proper, fifty dollars to my niece, A. R., and one hundred dollars to my nephew, B. R.; otherwise, it is to be disposed of as may best suit her.’ Next: ‘I give and bequeath, after the decease of my wife, all my property, if any remains, to my brothers and sisters and her brothers and sisters, to be divided equally between them.’ Then: 'It is my desire that my executrix sell my farm, either at public auction or at private sale.’ And made his wife executrix. It was held that by the will the widow had the absolute right to dispose of the entire property, for her own use and benefit, subject only to the payment of debts and legacies.” The opinion in Smith v. Starr, 31 Am. Dec., 498, seems to fully sustain the doctrine announced in the foregoing decisions. We quote as follows from the syllabus: ‘‘'Devise to use of A, with power of disposition by will, and, in default of will, then to her daughter, vests in A. an absolute estate in fee. A restriction inconsistent with a general power of disposal.” In Melson v. Cooper, 4 Leigh, 408, the syllabus reads as follows: “Testator devises land to his son William and his heirs, and, if he should die without a son and not sell the land, then to testator’s son George. Held, the devise gave William absolute power to sell the fee simple, and therefore, whether he sold it or not, he took a fee simple, and the devise- over to George was void.” In Howard v. Carusi,, 109 U. S., 725, 3. Sup. Ct., 575, 27 L. Ed., 1089, the same doctrine announced in the foregoing opinions seems to have been approved. We quote the syllabus, which is as follows: “A devise of real estate and bequest oí personal property ‘to my brother S. C., to be held, used, and enjoyed by him, his heirs, executors, administrators, and assigns, forever, with the hope and trust, however, that he will not diminish the same to a greater extent than may be necessary for his comfortable support and maintenance, and that, at his death, same, or so much as he shall not have disposed of by devise- or sale, shall descend to my three beloved nieces, P. E. C., Gr. E. C., and 1. E. C.,’ is, as to real estate, a devise to S. C. in fee simple, with no limitation over, and creates no trust, execu-tory or otherwise. An execution of power to name beneficiaries to take under the deed, which designates A, his heirs, executors, administrators, and assigns, forever, with the hope and trust that he will not diminish the same, and a provision that at his death so much thereof that he shall not have disposed of by devise or sale shall descend to B, vests the fee simple absolute in A, with no remainder.”

It will be seen from.the opinion su-pra, that the court refers with seeming approval to the cases of Jackson v. Bull, Ide v. Ide, Melson v. Cooper, and Ramsdell v. Ramsdell, hereinbefore referred to, together with many other decisions.

It is the contention of appellee that the opinion of this court in Barth v. Barth, 38 S. W., 511, sustains his contention that a will which conveys real estate, with power to sell, passes the fee to the first taker, and that any further devise over is void. The syllabus of this decision is as follows: “Under a devise by a testator to his widow of all his estate, real and personal, absolutely and forever, with power to sell or dispose of as she deems proper, the widow took the fee, notwithstanding the subsequent provision of the will that all the property that remained at her death should be equally divided among the testator’s sons; the devise over of what might remain being inconsistent with the fee, and therefore void.” It seems to us that the decided weight of authority, if, indeed, there be any to the contrary, is to the effect that a will or deed giving to the vendee or devisee full power to sell and convey passes the absolute fee, and that any provision or devise is absolutely void for the reason that it is inconsistent with or repugnant to the fee. And it is wholly immateral whether the power to sell or dispose of the property shall have been exercised or not. This view is not at all in conflict with the law which allows a power of appointment to be vested in one who merely owns a life estate in the property.

We deem it unnecessary to discuss or decide the other questions presented by counsel. Judgment affirmed.

Petition for rehearing filed by appellee and overruled.