§ 923. The Same Subject: Effect of Use of Such Words as "Forever," "Absolutely" or "Exclusively." A devise of property to a person and his heirs or his children forever, passes the fee. A limitation to a devisee by name coupled with the word forever, which is a word of inheritance, will vest the fee.35 Where realty is devised to a person absolutely, he will take an estate in fee;30 and the rule is the same where the devise is to one exclusively. A devise of realty to one for his exclusive use is unlimited and tantamount to a devise of the land in fee.38 § 924. Where Devise Is Upon Conditions, or in Trust. A devise upon conditions which can not be performed without an absolute ownership of the property will confer a fee upon the devisee.39 A devise to one simply, provided that if he "or his heirs" alien the property the devise shall be void, confers a fee by force of the words of the condition, although the condition itself is void.40 Where the fulfillment of a trust is imposed upon a devisee which he can not perform unless vested with title in fee, a fee will be implied. A devise in fee to trustees 35 Hood v. Dawson, 98 Ky. 285, 33 S. W. 75; Toman v. Dunlop, 18 Pa. St. 72. 36 Schneer V. Greenbaum, 4 Boyce (Del.) 97, 86 Atl. 107; Anders v. Gerhard, 140 Pa. St. 153, 21 Atl. 253. 37 Roskrow v. Jewell, 154 Iowa 634, Ann. Cas. 1914B, 63, 135 N. W. 3. 38 Moore v. Moore, 84 N. J. Eq. 39, 92 Atl. 948. 39 White V. White, 52 Conn. 518. 41 40 Barnard's Lessee v. Bailey, 2 Har. (Del.) 56; Holliday v. Divon, 27 Ill. 33; Gleason V. Fayerweather, 4 Gray (70 Mass.) 348; Walker v. Vincent, 19 Pa. St. 369; In re Naglee's Appeal, 33 Pa. St. 89; In re Kepple's Appeal, 53 Pa. St. 211; Fewell v. Fewell, 6 Rich. Eq. (S. C.) 138. 41 Sears v. Russell, 8 Gray (74 Mass.) 86, 89; Angell v. Rosenbury, 12 Mich. 241, 266; Fisher v. Fields, 10 Johns. (N. Y.) 495, 505; In re Koenig's Appeal, 57 Pa. St. 252. for the use of a person indefinitely confers a beneficial interest in fee upon the cestui que trust where the purpose of the trust requires the legal estate in fee to be in the trustees.42 § 925. Where Devisee Is Charged With Payment of Debts. Where the debts of the testator are charged upon a particular devisee, a fee passes without words of limitation or inheritance, there not being sufficient personal property passing to the devisee to satisfy the charges and the estate given the devisee is not expressly limited." The reason of the exception just mentioned is that if the devisee takes an estate for life only, he might be injured by the termination of his interest before he could be reimbursed for his expenditures." Where it is expressly stated what the devisee's estate shall be, the charge will 42 Knight v. Selby, 3 Man. & G. 92; Moore v. Cleghorn, 12 Jur. 591. See, also, Lemen v. McComas, 63 Md. 153. 43 Gaukler v. Moran, 66 Mich. 353, 33 N. W. 513; Curtis v. Fowler, 66 Mich. 696, 33 N. W. 804; In re Hinkle's Appeal, 116 Pa. St. 490, 9 Atl. 938; Backenstoe v. Hunsicker, 244 Pa. St. 295, 90 Atl. 641; Couch v. Eastham, 29 W. Va. 784, 3 S. E. 23. The disparity in the amount charged upon the devisee to the value of the land makes no difference. Where, however, the charge is upon the land so devised and not upon the devisee personally, the indefinite devise is not enlarged from a life estate into a fee. Robinson v. Randolph, 21 Fla. 629, 58 Am. Rep. 692. 44 Coke, Litt. 9b; Robinson v. Randolph, 21 Fla. 629, 58 Am. Rep. 692; Korf v. Gerichs, 145 Ind. 134, 44 N. E. 24; Wait v. Belding, 24 Pick. (41 Mass.) 129; Jackson v. Bull, 10 Johns. (N. Y.) 148, 6 Am. Dec. 321; Mooberry v. Marye, 2 Munf. (Va.) 453. It has been held that a charge upon the land only did not enlarge the estate. See Denn v. Mellor, 5 T. R. 558; Doe v. Garlick, 14 Mees. & W. 698; Fairfax v. Heron, Prec. Ch. 67; Burton v. Powers, 3 Kay & J. 170. See, however, Doe v. Richards, 3 Term Rep. 356; Gully v. Exter, 12 Moore J. B. 591; s. c., 4 Bing. 290. But, see, Britton v. Thornton, 112 U. S. 526, 28 L. Ed. 816, 5 Sup. Ct. 291; Carr v. Effinger, 78 Va. 197. not enlarge it to a fee.15 And where the charge is made on the estate alone, and not on the devisee, and there are no words of limitation, the devisee takes a life estate only. In fact, where the charge is upon the devisee, he will take the fee only where the testator's intentions are in doubt and the devise is indefinite.46 § 926. Devise of Life Estate With No Gift Over. A devise for life to the testator's heir, with no gift over, will vest in him the fee, for the life estate taken under the will and the reversion by descent together constitute a fee-simple. Likewise where an estate was given the testator's widow for life with no gift over, and she was constituted residuary devisee, the two provisions together operated to confer upon her the fee.48 § 927. Devise Coupled With Power of Disposition. A devise coupled with a power to sell or dispose of the property will create a fee in realty, and an absolute interest in personalty.50 Thus, a gift of property for life, with a power to dispose of a half thereof, confers a fee simple estate in half of the subject of devise.51 So a bequest of the interest of a fund, "the principal not to be touched unless necessary," will confer an absolute inter 45 Gaukler v. Moran, 66 Mich. 353, 33 N. W. 513; In re Hinkle's Appeal, 116 Pa. St. 490, 9 Atl. 938; Couch v. Eastham, 29 W. Va. 784, 3 S. E. 23. 46 Backenstoe v. Hunsicker, 244 Pa. St. 295, 90 Atl. 641. 47 Herbert's Guardian v. Herbert's Exr., 85 Ky. 134, 2 S. W. 682. 48 Warner v. Willard, 54 Conn. 470, 9 Atl. 136. 49 Bradley v. Westcott, 13 Ves. Jun. 445; Howard v. Carusi, 109 U. S. 725, 27 L. Ed. 1089, 3 Sup. Ct. 575; Chase v. Salisbury, 73 Ind. 506; Roy v. Rowe, 90 Ind. 54; Pettingell v. Boynton, 139 Mass. 244, 29 N. E. 655; Canedy v. Jones, 19 S. C. 297, 45 Am. Rep. 777. 50 Kendall v. Kendall, 36 N. J. Eq. 91. 51 Turner v. Durham, 12 Lea (80 Tenn.) 316. est in the principal in the absence of any gift over.52 A testamentary gift to one, generally or indefinitely, with power of disposition, carries the entire estate, and the beneficiary takes not a simple power, but the property absolutely. Any limitation over is void for repugnancy.53 § 928. The Same Subject. A power to dispose of the property as absolute owner includes both the right to sell and to devise,54 and a gift over in such a case can not take effect even as an executory devise.55 This would seem to follow as of course where the first gift is limited in fee. Thus, a devise in words purporting a fee, with power to sell or dispose of by will, and with a gift over should the devisee die without issue, was held to vest the fee absolutely; and it was decided that the limitation over was void, even though the prior devisee died intestate.56 52 McMichael v. Hunt, 83 N. C. 344. 53 Bradley v. Westcott, 13 Ves. Jun. 445; Howard v. Carusi, 109 U. S. 725, 27 L. Ed. 1089, 3 Sup. Ct. 575; Mayo v. Harrison, 134 Ga. 737, 68 S. E. 497; Markillie v. Ragland, 77 Ill. 98; Burke v. Burke, 259 III. 262, 102 N. E. 293; Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659; Luckey v. McCray, 125 Iowa 691, 101 N. W. 516; Clay v. Chenault, 108 Ky. 77, 55 S. W. 729; Welsh v. Gist, 101 Md. 606, 61 Atl. 665; Bassett v. Nickerson, 184 Mass. 169, 68 N. E. 25; Kemp v. Kemp, 223 Mass. 32, 111 N. E. 673; Roth v. Rauschenbusch, 173 Mo. 582, 61 L. R. A. 455, 73 S. W. 664; Loosing v. Loosing, 85 Neb. 66, 25 L. R. A. (N. S.) 920, 122 N. W. 707; Brohm v. Berner, (N. J. Eq.) 77 Atl. 517; Jennings v. Conboy, 72 N. Y. 230; Bass v. Bass, 78 N. C. 374; Hoxie v. Chamberlain, 228 Pa. St. 31, 76 Atl. 423; Johnson v. Johnson, 48 S. C. 408, 26 S. E. 722; Hansbrough v. Trustee of Presbyterian Church, 110 Va. 15, 65 S. E. 467. 54 Wead v. Gray, 78 Mo. 59. But, see, John v. Bradbury, 97 Ind. 263. 55 Hoxsey v. Hoxsey, 37 N. J. Eq. 21; Van Horne v. Campbell, 100 N. Y. 287, 53 Am. Rep. 166, 3 N. E. 316, 771; Read v. Watkins, 11 Lea (79 Tenn.) 158. 56 Combs v. Combs, 67 Md. 11, 1 Am. St. Rep. 359, 8 Atl. 757. There are cases, however, in which the gift over follows so The circumstance that the testator, in making an absolute gift of property, grants to the beneficiary the power to will or dispose of the property at death, does not impair the absolute estate given, but merely expresses an incident of its enjoyment." § 929. The Same Subject: Where Devise Is Limited to a Life Estate, or Power of Disposition Is Restricted. Under a will devising an estate in general terms, without specifying the nature of the estate, and giving the devisee a power of disposition over the property, the devisee takes a fee if the power of disposal is unconditional, and any limitation over will be void.58 Especially is this the effect where the gift over is only of so much as may remain undisposed of by the prior devisee.59 But where an estate is devised to a person expressly for life closely the devise to the first taker "and his heirs," that strong as these words are they must yield to the evident general intent of the testator, and he will take a base or conditional fee, subject to defeasance upon dying without heirs, or the occurrence of other contingencies, and the gift over may take effect as an executory devise.O'Brien v. O'Leary, 64 N. H. 332, 10 Atl. 697; In re New York, L. & W. Ry. Co., 105 N. Y. 89, 59 Am. Rep. 478, 11 N. E. 492. See §§ 866, 867. 57 Byrne v. Weller, 61 Ark. 366, 33 S. W. 421; Goldsmith v. Petersen, 159 Iowa 692, 141 N. W. 60. 58 In re Stringer's Estate, L. R. 6 Ch. Div. 1; In re Hutchinson, L. R. 8 Ch. Div. 540; White v. Hight, L. R. 12 Ch. Div. 751; How- 59 Howard v. Carusi, 109 U. S. See, also, McKim v. Harwood, 129 Mass. 75; Williams v. Parker, 84 N. C. 90. See § 930. |