delivered the opinion of the court.
The language of the fourth clause of the will of Joseph B. Bedd is as follows:
“I give to my brother William Redd and my brother-in-law James A. Colbert one share of my real estate, to be held by them in trust and for the benefit of my niece Agnes Priscilla Redd, daughter of my brother James A. Redd, during the natural life of said Agnes Priscilla Bedd; and, should the said Agnes Priscilla Redd die and leave no child, in that case the property devised above, or what may remain of the same, I give to my sister Nancy J. Massie.”
The question to be determined is, Did Agnes Priscilla Redd take a fee simple in the trust fund created by the clause quoted, or did she take only a life estate therein ?
It cannot be longer doubted that the law is settled by the courts and text-writers everywhere, of the highest authority, that am, estate for life, coupled with the absolute power of alienation, either express or implied, comprehends everything, and
In this view of the law, the real question to be determined, in construing the language under consideration, is this: "Whether or not the devise in trust for the benefit of Agnes Priscilla Redd is coupled with the unrestrained power in her to dispose of the property. In this connection, the language to be interpreted is as follows: “Should the said Agnes Priscilla Redd die and leave no child, in that case the property devised as above, or what may remam, of the same, I give, ’ ’ etc.
This language cannot be reasonably construed otherwise than that the devisee under it has not only the power to use this property, but to consume it, if she will. The gift over at her death of what umay remaAn of the same” shows that the testator intended, notwithstanding the direction that the property was to be held by the trustees named, during her natural life, that she should have the power to dispose of, consume, or spend it in her lifetime, which she could only do by being invested with the fee-simple. "What might remain of the same was all that was to go over. The language forcibly implies an unlimited and unqualified power of disposition. The devisee could acquire no greater estate, nor exercise greater power over it. To put any restriction upon her absolute dominion over it would be to say that the whole, or some part of it, should go over to the second taker, when the will expressly says that only uwhat may remain of the same” shall pass to the second taker.
In 2 Minor’s Insts. 969, 970, it is said: “Although a devise be expressly for life of the devisee, yet if the devisee be, by other clauses of the will, permitted to use and dispose of the subject absolutely at his pleasure, or if so much as may remain undisposed of by him at his death (which implies a power of unqualified disposition) be given over at his decease, the de
It was said by Judge Green in Madden v. Madden, 2 Leigh, 377, in an able review of the cases on the subject, that it was settled law that whenever there is an interest gimen, coupled with cm absolute power of disposition in respect to all property of every description, real and personal, the first taker would home the absolute property, and that there was no distinction between a case of a gift for life, with a power of disposition added, cmd a gift to one indefinitely, with a super added power to dispose of by deed or will.
In May v. Joynes, 20 Gratt. 692, the testator gave his whole estate, real and personal,- to his wife, for life, with full power to dispose of it, and use the purchase money for investment, or any purpose that she pleased, with this restriction: that whatever remained at her death should be divided among his children and grandchildren. Though the gift was to the wife expressly for life, it was held that she took a fee-simple in the real estate, and an absolute estate in the personalty, and that the gift over was void for repugnancy and uncertainty. See, also Shermer v. Shermer's Ex'or, 1 Wash. 266; Riddick v. Cohoon, 4 Rand. 547; Melson v. Cooper, 4 Leigh, 409; Brown v. George, 6 Gratt. 424; The Missionary Society of the M. E. Church v. Calvert's Adm'r et als., 32 Gratt. 357; Carr et als. v. Effinger et als., 78 Va. 197; Cole v. Cole et als., 79 Va. 251; Hall v. Palmer, 87 Va. 354; Bowen v. Bowen, 87 Va. 438.
The cases cited clearly establish that whenever it is the intention of the testator that the devisee shall have an unrestrained power of disposition over the property devised, whether such intention be expressed or necessarily implied, a limitation over to another is void, because it is inconsistent with, and repugnant to, the estate given to the first devisee, although the will shows that it was the testator’s intention,
It follows from the foregoing statement of the law, that Agnes Priscilla Redd took a fee-simple in the estate devised for her benefit, under the fourth clause of the will of her uncle, Joseph B. Redd.
It appears that in August, 1870, James A. Colbert, acting trustee, had a settlement with his cestui que trust, then Mrs. Agnes P. Farish—a widow with a number of children-—-as a result of which he conveyed to her a tract of land containing one hundred and nine acres, and improvements, in full settlement of her estate derived under the will of Joseph B. Redd, which was about $1,500. Mrs. Farish took possession, and has lived on the land ever since. James A. Colbert, the trustee, is now dead, and his estate is -being settled in this case. Mrs. Farish and her children-—all now grown —file a petition, and insist that Colbert’s estate must be charged with this $1,500, and credited by the true value of the land conveyed to her in 1870. Some evidence is taken tending to show that the land was not worth $1,500, but very much less. If Mrs. Farish had rights which were violated in this transaction, her laches would now preclude the assertion of those rights. A time must come when the transactions of life can be regarded as closed. Mrs. Farish has quietly enjoyed the fruits of her bargain, as a home, for a quarter of a century. She was never heard to utter a word of complaint, until the petition was filed in this case by herself and children, twenty years after the purchase of the land. There is no charge of fraud in the petition. James A. Colbert is unable
For the foregoing reasons the court is of opinion that there is no error in the decree complained of, and it must be affirmed.
Affirmed.