with a power of disposition, qualified or unqualified, annexed to the life estate, the devisee takes but a life estate notwithstanding the gift of the power of disposal.0 If a life estate only is given, the fact that the beneficiary has the power of disposition during his lifetime which he does not exercise, does not enlarge the estate into a fee.61 The testator may evince an intention that the devisee take but a life estate. A limited power of disposition is repugnant to the idea of a devise in fee simple since such estate is consistent only with the unlimited right to convey or devise.62 If a devisee takes the property with but a restricted power of disposition, as where he could only sell for reinvestment on the same terms under which the original property is held, he does not take an absolute interest.63 § 930. Gift Over of What Remains Unexpended by Devisee. A gift over of what remains unexpended upon the death of a legatee will not cut down an absolute gift of personalty. When real estate is given absolutely to one person with a gift over to another of such portion as may 64 60 Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659; Ramsdell v. Ramsdell, 21 Me. 288; Pickering v. Langdon, 22 Me. 413; Shaw v. Hussey, 41 Me. 495; Fox v. Rumery, 68 Me. 121; Warren v. Webb, 68 Me. 133; Stuart v. Walker, 72 Me. 145, 39 Am. Rep. 311; Nash v. Simpson, 78 Me. 142, 3 Atl. 53; Welsh v. Gist, 101 Md. 606, 61 Atl. 665; Greffet v. Willman, 114 Mo. 106, 21 S. W. 459; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Benz v. Fabian, 54 N. J. Eq. 615, 35 Atl. 760; Jackson v. Robins, 16 Johns. (N. Y.) 537; Alexander v. Cunningham, 27 N. C. remain undisposed of by the first taker at his death, the gift over is void as repugnant to the absolute estate first given. This is necessarily so because after an estate in fee simple has vested in the first taker, there remains nothing to pass over as a remainder; and the limitation being inconsistent with the power of disposition given or necessarily implied by the will, the gift over is void as an executory devise.65 § 931. Where Fee Is Devised, Rights of Devisee Can Not Be Limited. No one can create an estate that in law constitutes a fee, and then deprive the owner of those essential rights and privileges which the law annexes to it, without reserving a reversion to himself or to some one in whom the right to insist upon the condition is vested." Where there is a valid devise of a fee with an attempted invalid qualification or limitation, the devise must be construed as a fee simple.67 654 Kent, Com. *270; Bull v. Kingston, 1 Meriv. 314, 35 Eng. Repr. 690; State v. Smith, 52 Conn. 557; Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659; Tarbell v. Smith, 125 Iowa 388, 101 N. W. 118; Irvine v. Putnam, 28 Ky. L Rep. 465, 89 S. W. 520; Dorsey v. Dorsey, 9 Md. 31; Roth v. Rauschenbusch, 173 Mo. 582, 61 L. R. A. 455, 73 S. W. 664; Moran v. Moran, 143 Mich. 322, 114 Am. St. Rep. 648, 5 L. R. A. (N. S.) 323, 106 N. W. 206; Foster v. Smith, 156 Mass. 379, 31 N. E. 291; Spencer v. Scovil, 70 Neb. 87, 96 N. W. 1016; Jackson v. Bull, 10 Johns. (N. Y.) 19; Tuerk v. Schueler, 71 Where a testator devised land to 66 Conger v. Lowe, 124 Ind. 368, 9 L. R. A. 165, 24 N. E. 889. 67 Reeder v. Antrim, (Ind. App.) 112 N. E. 551; Schwren v. Falls, 170 N. C. 251, 87 S. E. 49. Where the limitation over is void, the precedent estate becomes absolute; as for example, where the limitation offends the doctrine of perpetuities, or is a restraint on alienation, or there is a void devise to pious uses.70 69 68 § 932. As to Cutting Down a Devise in Fee by Subsequent Provisions in the Will. When an absolute estate is given in one part of a will in clear and decisive terms, such estate can not be cut down or limited to a life use by subsequent provisions of the will unless that part providing for a life estate is expressed in as clear and decisive language as the part giving the estate in fee." Thus, a testator can not devise his estate in fee to his wife and then undertake to direct what shall be done with any portion of it which she may leave at her decease.72 Nor can a testator devise an absolute estate to one and then vest a remainder in the same property in others.78 68 Post v. Rohrbach, 142 Ill. 600, 32 N. E. 687; Huxford v. Milligan, 50 Ind. 542. 69 Schwren v. Falls, 170 N. C. 251, 87 S. E. 49. 70 Horn v. Foley, 13 App. Cas. (D. C.) 184. 71 Eaton v. Eaton, 88 Conn, 269, 91 Atl. 191; Taylor v. Reid, 144 Ga. 437, 87 S. E. 469; Langman v. Marbe, 156 Ind. 330, 58 N. E. 191; Roberts v. Crume, 173 Mo. 572, 73 S. W. 662; Lemp v. Lemp, 264 Mo. 533, 175 S. W. 618; Banzer v. Banzer, 156 N. Y. 429, 51 N. E. 291; Criner v. Geary, (W. Va.) 89 S. E. 149. "A clear gift is not to be cut down by anything which does not with reasonable certainty, indi cate an intention to cut it down." -Pitts v. Campbell, 173 Ala. 604, 55 So. 500, quoted in O'Connell v. O'Connell, (Ala.) 72 So. 81. "Where the words that create, in the first place, an estate in fee in one and vests him with full title and power of alienation, any later expression which would destroy, nullify, or expunge that which has been done must be held ineffectual, because they both can not stand. A thing can not be and not be at the same time."-Cana day v. Baysinger, 170 Iowa 414, 152 N. W. 562. 72 Jones v. Bacon, 68 Me. 34, 28 Am. Rep. 1. 73 In re Condon's Estate, 167 Iowa 215, 149 N. W. 264. The rule above mentioned, however, should be carefully applied where it manifestly conflicts with the expressed intention of the testator." And although an estate in fee is given, yet if subsequent passages in the will unequivocally show that the testator meant that the beneficiary should take a life interest only, the gift should be restricted accordingly.75 § 933. The Same Subject. When the will has clearly given an estate in fee-simple in realty or an absolute interest in personalty, the testator is not to be presumed to have intended by subsequent expressions and limitations to cut the estate or interest down to one for life unless the words employed clearly indicate such an intention;76 although, of course, an absolute devise must be construed with a subsequent 74 Hopkins v. Keazer, 89 Me. 347, 36 Atl. 615. 75 Griffin v. Morgan, 208 Fed. 660; McClintock v. Meehan, 273 III. 434, 113 N. E. 43; Freeman v. Maxwell, 262 Mo. 13, 170 S. W. 1150; Richardson v. Paige, 54 Vt. 373. In Kurtz v. Wiechmann, 75 App. Div. (N. Y.) 26, 77 N. Y. Supp. 964, the testator in one paragraph provided that "all the residue and remainder of my estate, both real and personal, I give, devise and bequeath unto my beloved wife M. W., to be hers in fee simple absolutely and forever, with full power to sell and convey, buy and discharge any and all matters as she sees fit." In the next paragraph he provided: "After the II Com. on Wills-32 death of my said wife, the remainder of my estate is to be divided in halves, one-half to be divided between the legal heirs on my side, and the other half between the legal heirs of my wife's, share and share alike." It was held that the rule in no way interfered with the construction that the widow did not take a fee simple absolute, but only a life estate in the property. 76 Jamison v. Craven, 4 Del. Ch. 311; Wallace v. Hawes, 79 Me. 177, 8 Atl. 885; Fairfax v. Brown, 60 Md. 50; Damrell v. Hartt, 137 Mass. 218; Rhodes v. Rhodes, 137 Mass. 343; Parker v. Iasigi, 138 Mass. 416; Kerr v. Bryan, 32 Hun (N. Y.) 51; Campbell v. Beaumont, 91 N. Y. 464. clause which modifies its effect." Conversely an estate clearly devised for life or for widowhood will not be enlarged by the mere use of the word "fee-simple. ''78 Generally, superadded words which merely describe or specify the incidents of the estate, created by such words of limitation as "heirs," do not cut down the interest of the devisee. Thus, a fee clearly given will not be impaired by a subsequent appointment of a guardian to manage an estate on account of the physical infirmity of the devisee, so nor by reason of restrictions upon the expenditure of the income.81 But a clause in a will which, standing entirely alone, will pass an absolute title in fee, may be so restrained and limited by subsequent clauses as to pass a life estate only, or conditions may be imposed by which, upon certain contingencies, the estate may be entirely defeated.82 Thus, an estate in fee simple does not pass where there is a limitation providing that in case the devisee dies before arriving at a specified age, s or before marriage, the estate shall go to other heirs of the testator; so, also, where the limitation over is that 77 Stevens v. Miller, 2 Demarest (N. Y.) 597. See, also, Baldwin v. Taylor, 37 N. J. Eq. 78. 78 In re Appeal of McGuire, (Pa. St.) 11 Atl. 72. 79 Shimer v. Mann, 99 Ind. 190, 50 Am. Rep. 82. 80 In re Shoemaker's Appeal, 91 Pa. St. 134. 81 Fairfax v. Brown, 60 Md. 50. 82 Smith v. Bell, 6 Pet. (U. S.) 68, 8 L. Ed. 322; Siegwald v. Siegwald, 37 Ill. 430; Bowser v. Mattler, 137 Ind. 649, 35 N. E. 701, 36 N. E. 714; Wheeler v. Long, 128 83 Iowa 643, 105 N. W. 161; Anderson 83 limas v. Neidt, 101 Iowa 348, 70 N. W. 203; Wheeler v. Long, 128 Iowa 643, 105 N. W. 161; Howe v. Fuller, 19 Ohio 51. 84 Bennett v. Packer, 70 Conn. 357, 66 Am. St. Rep. 112, 39 Atl. 739; Brook's Will, 125 N. C. 136. 34 S. E. 265. |