in the event of testator's children dying without heirs, the property shall go to another named person.85 And a subsequent provision in a will may limit the enjoyment of the thing granted or the right to control or enjoy it for a limited period, as where the property is to be held intact and not sold until the youngest son shall arrive at his majority, or in case of his death before that time, that it shall not be sold before a certain date. 86 Where an estate otherwise than an estate in fee simple is devised in one clause of a will in clear and decisive terms, and the subsequent provisions clearly and distinctly show an unmistakable intention upon the part of the testator to give an estate less than a fee simple, such later intention must control.87 § 934. The Same Subject: Where the Expressions Are of Doubtful Meaning. A clearly expressed intention in one part of the will can not yield to a doubtful construction in another.88 An intent to cut down an estate once granted abso 85 Pratt's Lessee v. Flamer, 5 Harr. & J. (Md.) 10. 86 Elberts v. Elberts, 159 Iowa 332, 141 N. W. 57. 87 Hayes v. Martz, 173 Ind. 279, 89 N. E. 303, 90 N. E. 309. 88 Morrison v. Schorr, 197 Ill. 554, 64 N. E, 545; Hayes v. Martz, 173 Ind. 279, 89 N. E. 303, 90 N. E. 309; Lohmuller v. Mosher, 74 Kan. 751, 11 Ann. Cas. 469, 87 Pac. 1140; Gannon v. Albright, 183 Mo. 238, 105 Am. St. Rep. 471, 67 L. R. A. 97, 81 S. W. 1162; Mee v. Gordon, 187 N. Y. 400, 116 Am. St. Rep. 613, 10 Ann. Cas. 172, 80 N. E. 353; Ir vine v. Irvine, 69 Ore. 187, 136 Pac. 18. Where a fee simple was plainly given in one clause, and was followed by a later clause declaring: "If any of my children should depart this life leaving a child or children, such child or children are to be entitled to the father or mother's share, which I hereby give them and their heirs under the provisions of this will," the court held that the devisee took a fee simple as the contingency provided for was the death of the devisee in the lifetime of the tas lutely must be manifested clearly and unmistakably, and where the expression relied upon be doubtful, the doubt must be resolved in favor of the absolute estate.89 In case of doubt as to whether an estate in fee or a lesser estate has been created by the words used by the testator, the law favors the fee in preference to the lesser estate.90 The reason for this rule is that the law favors the vesting of the estate at the earliest possible period, and in the absence of a clear manifestation of the intention of the testator to the contrary, the court will construe the will with that end in view.91. § 935. Statutory Changes Regarding Words of Limitation. The rule of the common law requiring words of limitation has been abolished by statute in England,92 and in most of these United States. Thus a devise of realty without words of limitation is construed to pass an estate in fee simple or the whole interest in the property which the testator could devise, unless a contrary intention appears from the context of the will.98 The spirit of the tator.-Peyton v. Perkinson, 98 Va. 215, 35 S. E. 450. 89 McClellan v. Mackenzie, 126 Fed. 701, 61 C. C. A. 619; Birney v. Richardson, 5 Dana (Ky.) 424; Benson v. Corbin, 145 N. Y. 358, 40 N. E. 11; Meacham v. Graham, 98 Tenn. 190, 39 S. W. 12. 90 Putbrees v. James, 162 Iowa 618, 144 N. W. 607; Hardin's Exr. v. Hardin, 170 Ky. 736, 186 S. W. 893. 91 Putbrees v. James, 162 Iowa 618, 144 N. W. 607. 92 Stat. 1 Vict., ch. 26, § 28, reads: "Where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will." As to the meaning and effect of words of limitation, see § 909. 93 See state statutes generally. Cal. Civ. Code, §§ 1072, 1329; § 24, Del. Rev. Code, 640; Ill. Rev. Stat., ch. 30, § 13; Burns' Ann. Stat. of Ind., (1914) § 3123; Kan. Gen. Stat., 94 statutes and the disposition of the courts, as a matter The result of the statutory enactments is to reverse (1897) ch. 110, § 54; Gen Stats., See, also, Smith v. Greer, 88 Ala. Kane, 102 Va. 547, 46 S. E. 312, 94 Strawbridge v. Strawbridge, 95 Davis v. Ripley, 194 Ill. 399, 62 N. E. 852. 96 O'Connell v. O'Connell, (Ala.) 72 So. 81; King v. King, 215 Ill. 100, 74 N. E. 89; Brookover v. Branyan, (Ind.) 112 N. E. 769; Keplinger v. Keplinger, (Ind.) 113 N. E. 292; Dalmazzo v. Simmons, 25 Ky. L. 1532, 78 S. W. 179; Johns Hopkins University v. Garrett, 128 Md. 343, 97 Atl. 640; Roth v. Rauschenbusch, 173 Mo. 582, 61 L. R. A. 455, 73 S. W. 664; Feit v. Richards, 64 N. J. Eq. 16, 53 Atl. § 936. The Same Subject: Creation of Estates Generally: Limited to Those Recognized by Law. Where the common law rule has been abolished by statute, it is a cardinal rule of construction that the court will seek to discover and give effect to the testator's intention as to the character of the estate given his beneficiaries.97 If the testator possesses an estate in fee simple and devises the whole of his estate, though by words not technically descriptive of an interest in fee simple, it will be held to convey such estate and to pass not only the whole quantity of the testator's property, but also the whole of his interest therein.98 99 The testator can not create by will such an estate as by the rules of the common law he could not in his lifetime create by deed. He can not create an estate or inheritance unknown to the law. A will which seeks to introduce a tenure or estate which the law does not recognize or enforce, is void.1 824; Morrison v. Clarksburg Coal & Coke Co., 52 W. Va. 331, 43 S. E. 102. Examples. A testamentary gift as follows: "I give and bequeath unto my beloved wife C. C. all my property of every kind and nature," gives to the widow an estate in fee, and the fact that there is added the words "to hold and to use as she may see fit and proper," does not qualify and limit the fee so as to cut down the absolute title to a life estate.-In re Crofoot's Will, 137 N. Y. Supp. 430. Where the devise was, "I give to my wife for a home," etc., and the testator had other real estate, the words "for a home" held not to qualify the absolute gift to the wife and as not sufficient to restrict it to a life estate. The widow therefore took an estate in fee simple.-Wilkinson v. Chambers, 181 Pa. St. 437, 37 Atl. 569. 97 Mace v. Mace, 95 Me. 283, 49 Atl. 1038; Irvine v. Irvine, 69 Ore. 187, 136 Pac. 18. 98 Steward v. Knight, 62 N. J. Eq. 232, 49 Atl. 535; King v. Miller, 11 Lea (79 Tenn.) 633. 99 Mullany v. Mullany, 4 N. J. Eq. 16, 31 Am. Dec. 238. 1 Coke, Litt. 27; Succession of McCan, 48 La. Ann. 145, 19 So. 220; Johnson v. Whiton, 159 Mass. 424, 34 N. E. 542. 937. Estates tail defined. 938. The same subject: As to personalty. §939. Effect of the statute de donis on conditional fees. § 940. Converting estates tail to fees simple by fine or common recovery. $941. Estates tail in the United States: Statutory regulations. §942. Words sufficient to create an estate tail. §943. The same subject. $944. The same subject: Statutory requirements. § 945. Adding words of inheritance. $946. "Issue" as a word of limitation or of purchase. § 947. Creation of estates tail by implication: Gift over if devisee "die without issue." § 948. "Die without issue": At common law meant indefinite failure of issue. § 949. The same subject: Statutory changes. § 950. The same subject: Referring to death of first devisee. § 951. The same subject: Referring to death of testator. § 952. "Children" as a word of purchase. § 953. "Children" as a word of limitation. § 954. Children not in being: Rule in Wild's Case. § 955. The same subject. § 956. The same subject: Will speaks as of date of testator's death. 8937. Estates Tail Defined. An estate tail is an estate in real property granted to one and the heirs of his body, such heirs tak |