remainder over, which can not be done without explicit words or an unmistakable intention on the part of the testator;95 or it will be found that, though terms were used which might, if standing alone, import only a life estate in the first devisee, there were united with these words other words conferring the power to dispose of the entire estate, an authority incompatible with a life estate only; or else some phrase was used which clearly imported that the entire fee was devised.87

§ 973. Life Estate Coupled With Absolute Power of Disposition.

Where the devise, either in express terms or by necessary implication, is to the beneficiary for life, there is some diversity of opinion as to whether or not an added power of disposition enlarges the estate to a fee simple. The general rule is that a power to dispose of the fee annexed to a devise for life does not enlarge the estate given. Where the devisee is given a life estate only, a later clause granting such devisee the power to dispose of the fee is governed by the former provision, and the express limitation for life will control the operation of the power so as to prevent it from enlarging the estate first devised.88

85 See § 931.

86 See §§ 927-929. 87 See §§ 920-926.

As to cutting down a devise by fee by subsequent provisions in the will, see §§ 932-934.

88 In re Sanford, L. R. (1901) 1 Ch. Div. 939, 84 L. T. N. S. 456; Lucas v. McNeill, 231 Fed. 672, 145 C. C. A. 558; Brant v. Virginia Coal & Iron Co., 93 U. S. 326, 23 L. Ed. 927; Kennedy v. Alexan

der, 21 App. Cas. (D. C.) 424; Morffew v. San Francisco & S. R. R. Co., 107 Cal. 587, 40 Pac. 810; Mansfield v. Shelton, 67 Conn. 390, 52 Am. St. Rep. 285, 35 Atl. 271; Nort v. Healy Real Estate Co., 136 Ga. 287, 71 S. E. 471; Kirkpatrick v. Kirkpatrick, 197 Ill. 144, 64 N. E. 267; Forbes v. Forbes, 261 Ill. 424, 104 N. E. 1; Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659; Beatson v. Bowers, (Ind. App.) 88

There are authorities to the contrary which lay down the rule that where a devise of a life estate is coupled

B

with an absolute and unlimited power of disposition, everything is comprehended within the power with the result that an estate in fee simple is created, since a lesser estate would be inconsistent with the right of disposition. 89

In both instances the courts recognize the rule that the intention of the testator should prevail. The apparent conflict of authority may be reconciled by the fact that the courts construed the intention of the testator in such a manner as in one instance to create a fee, while in the other the estate was limited to one for life.90

8974. The Same Subject: Statutory Regulations.

In some jurisdictions it is provided by statute that a devise is presumed to pass the fee simple unless it clearly appears that a less estate is intended; and where an absolute power of disposition is given, not accompanied by any trust, and no remainder is limited over on the estate devised to the donee of the power, an estate in fee simple is created; and every power of disposition is deemed absolute if by means thereof the donee is enabled

Where a power of disposal accompanies a bequest or devise of a life estate, such power is only coextensive with the estate which the devisee takes, and means such disposal as a tenant for life could make, unless there are other words clearly indicating that a larger power was intended.-Metzen v. Schopp, 202 III. 275, 67 N. E. 36.

See §§ 1011, 1012.

89 Bolman v. Lohman, 79 Ala. 63; Hale v. Marsh, 100 Mass. 468; Cummings v. Shaw, 108 Mass. 159;

Hardaker's Estate, 204 Pa. St. 181, 53 Atl. 761; Hair v. Caldwell, 109 Tenn. 148, 70 S. W. 610; McKnight v. McKnight, (Tenn.) 107 S. W. 682; Davis v. Heppert, 96 Va. 775, 32 S. E. 467; Brown's Guardian v. Strother's Admr., 102 Va. 145, 47 S. E. 236; Randall v. Harrison's Exr., 109 Va. 686, 64 S. E. 992; Smith v. Schlegel, 51 W. Va. 245, 41 S. E. 161; Morgan v. Morgan, 60 W. Va. 327, 9 Ann. Cas. 943, 55 S. E. 389; Newman v. Newman, 60 W. Va. 371, 7 L. R. A. (N. S.) 370, 55 S. E. 377.

90 See § 929, § 933, n. 87.

in his lifetime to dispose of the entire fee for his own benefit.91

Some of the statutes provide that where an absolute power of disposition, not accompanied by any trust, is given to the donee of the particular estate for life or for years, such an estate is enlarged to a fee simple as to the rights of creditors and purchasers, but is subject to any future estate limited thereon in case the power is not executed or the lands are not sold for the satisfaction of debt during the continuance of the particular estate.92

§ 975. Life Estate With Limited Power of Disposition.

Where the devisee takes property with but a limited power of disposition, such power is consistent only with. a life estate.93 As to whether or not the power is limited to specific purposes depends upon the intention of the testator, and such intention must be ascertained and, if possible, given effect. Such power of disposition is limited

91 Code of Alabama, §§ 1020, 1048, 1049.

Under such statutory provisions, where the wife gave her husband her home "for the use of himself and children as a home, with the right and power in him to sell and convey the same at his discretion," the husband took an estate in fee. Smith v. Phillips, 131 Ala. 629, 30 So. 872.

Under the Kentucky statute, a devise to the testator's wife of all his estate for "her lifetime, to manage and dispose of as she may see cause," and there was no gift over, was held to convey an estate in fee.-Alsip v. Morgan, 33 Ky. L. 72, 109 S. W. 312.

As to statutory regulations regarding words of limitation, see §§ 935, 936.

92 Hood v. Bramlett, 105 Ala. 660, 17 So. 105; Hershey v. Meeker County Bank, 71 Minn. 255, 73 N. W. 967; Hume v. Randall, 141 N. Y. 499, 36 N. E. 402.

See, also, Civil Code, 1907, Ala., §§3423-3426; Howell's Mich. Stats., §§ 10764-10768; Gen. Stats., Minn., 1913, §§ 6735-6739; Real Property Law, N. Y., §§ 129-133; Comp. Laws, Okla., 1909, §§ 7324-7327; Stats. 1913, Wis., §§ 2108-2112. 93 See § 929, n. 62, 63.

Whether interest in remainder is vested or contingent, see §§ 1011, 1012.

where the devisee, although given the right to sell the property at his discretion, is further required to reinvest the proceeds in other lands, taking a deed for the same to himself for life with remainder over as provided by the testator's will.94 A power may also be limited to conditions as where there must exist a necessity to provide funds for the support of the devisee." But the right to sell at any time when, in the judgment of the devisee, a sale is necessary for his comfort or convenience, makes the devisee the sole criterion of the exercise of the power and makes such power practically without limitation.96

Although a limited power of disposition be coupled with a life estate, as the right to sell and use the proceeds for the use, comfort and support of the devisee, the entire property may be sold during the devisee's life for the specific purposes mentioned, and thus the rights of the remainderman may be defeated.97 If the right to exercise a power of disposition depends upon a certain condition or the happening of a certain contingency, such condition or contingency must exist at the time of disposition; but unless otherwise restricted by the terms of the devise, it is not necessary that the donee of the power secure an

94 Waller v. Martin, 106 Tenn. 341, 61 S. W. 73.

95 Cox v. Wills, 49 N. J. Eq. 130, 22 Atl. 794; Bradway v. Holmes, 50 N. J. Eq. 311, 25 Atl. 196.

Where the will gave a sister a life estate with power "to sell and dispose of so much . . . as will ensure her a comfortable living," she is limited to the right to sell only in order to ensure her such living. Morse v. Inhabitants of Natick, 176 Mass. 510, 57 N. E. 996.

Where the testator manifested the intention of charging his entire estate with the burden of the support and maintenance of his wife, and gave her a power of sale and reinvestment to that end, the power could only be exercised by the wife for the particular purpose mentioned.-Gadd v. Stoner, 113 Mich. 689, 71 N. W. 1111.

96 Wills v. Wills, 73 N. J. Eq. 733, 69 Atl. 256.

97 Rowe v. Rowe, 120 Iowa 17, 94 N. W. 258.