order of court to dispose of the property. Proof of the actual existence of the condition or contingency is sufficient.98 If the power to sell requires the approval of others, as where the widow can dispose of real estate only with the approval of the adult children of the testator, the widow, having only a life estate, can not dispose of the property without the consent of such children.""

§ 976. Where Power of Disposition Is Not Exercised.

Where the testator gives a life estate to one coupled with a power of distribution, with remainder over to another in the event the property is not disposed of, the gift over creates a remainder which vests at the death of the testator, subject to be defeated by the exercise of the power.1 Where the power of distribution is not exercised it leaves both the life estate and the remainder over unaffected by the grant of the power; and of course where such power is exercised, it defeats the remainderman as to the property disposed of.2

8977. Express Devise Not Affected by Subsequent Doubtful Expressions.

In the interpretation of every will all technical rules of construction must give way to the intention of the testator when such intention can be fairly ascertained; but clear expressions will not be controlled by those which are doubtful. Where a life estate has been created in clear

98 Bartlett v. Buckland, 78 Conn, 517, 63 Atl. 350.

99 Schneider v. Schneider, 124 Wis. 111, 102 N. W. 232.

1 McCullough's Admr. v. Anderson, 90 Ky. 126, 7 L. R. A. 836, 13

S. W. 353; Burleigh v. Clough, 52
N. H. 267, 13 Am. Rep. 23.

As to a gift over of what remains "undisposed of" by the devi. see, see § 930.

2 Grace v. Perry, 197 Mo. 550, 7 Ann, Cas. 948, 95 S. W. 875.

and unequivocable terms, no expressions or words thereafter used in the will, short of plain and explicit terms to the contrary, will be deemed to have enlarged the life estate into a fee. A life estate clearly expressed can not be converted by a later clause into an absolute estate in favor of the same person on the theory that where two testamentary dispositions are antagonistic, the latter must stand as the last expression of intention, unless the later clause is as clear as the first and can not be reconciled therewith, and the real intent of the testator can not be gathered from the general scope of the will. If there be no doubt as to the meaning of the earlier clause while doubt exists regarding the later so that either of two constructions is possible, that construction will be adopted which will give effect to both. But doubt as to the meaning of the last clause, instead of destroying the limitation in the former clause, confirms it. An express limitation will not be affected by subsequent expressions of doubtful meaning.

3

This does not mean that words which, standing alone and unmodified by other clauses of the will, would create an estate for life, can not be preceded or followed by clauses which change the nature of the estate given. But

3 Doe v. Biddle, 2 Houst. (Del.) 402; Johnson v. Johnson, 98 Ill. 564; Cecil v. Cecil, 161 Ky. 419, 170 S. W. 973; Vaughan v. Bunch, 53 Miss. 513; Adams v. Massey, 184 N. Y. 62, 76 N. E. 916; In re Souder, 203 Pa. St. 293, 52 Atl. 177; Ellis v. Birkhead, 30 Tex. Civ. App. 529, 71 S. W. 31.

A devise in fee will not be cut down by doubtful expressions, see $934.

A provision that the widow may have the privilege of a home in a house devised to the son is not necessarily inconsistent with an intention to invest her with a life estate in all the testator's property so long as she remains unmarried.-Clough v. Clough, 71 N. H. 412, 52 Atl. 449.

4 Cruse v. Kidd, 195 Ala. 22, 70 So. 166.

an estate for life can not be defeated or cut down because of a doubt raised by other clauses in the will, but only by express and explicit words or by clear and undoubted implication."

§ 978. Life Estate in Personalty: Money.

The law authorizes the creation of the same interests, in effect, in personal property as are permitted with regard to real property, and life estates, with remainders over, may be created in personalty. Personal property, including money, may be bequeathed for life with remainder over. Even successive life estates in personalty are allowed.8

Where an estate in personal property is given for life with remainder over in general terms and not specifically, the property is to be converted and invested by the executor and the income only paid to the life tenant. This rule of construction must always prevail unless a contrary intention is indicated in the will that the tenant for life is to enjoy the possession of the property in specie."

A life estate may be created in money as well as in land.10 A bequest of money does not always vest in the beneficiary an absolute estate, for a trust may be created so that he has only a right to the interest or income, the

5 Montgomery v. Brown, 25 App. Cas. (D. C.) 490.

6 French v. Hatch, 28 N. H. 331; Matter of Ryder, 41 App. Div. (N. Y.) 247, 58 N. Y. Supp. 635.

7 Dickinson v. Griggsville Nat. Bank, 111 Ill. App. 183; Webb v. Webb, 130 Iowa 457, 104 N. W. 438; Merrill v. Emery, 10 Pick. (27 Mass.) 507; Hitchcock v. Clendennin, 6 Mo. App. 99; French v.

Hatch, 28 N. H. 331; Van Wagoner's Estate, (N. J. Eq.) 97 Atl. 893; Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334, 346; Davis' Appeal, 100 Pa. St. 201.

8 Matter of Ryder, 41 App. Div. (N. Y.) 247, 58 N. Y. Supp. 635.

9 Van Wagoner's Estate, (N. J. Eq.) 97 Atl. 893; Ott v. Tewksbury, 75 N. J. Eq. 4, 71 Atl. 302.

10 Conover v. Cade, (Ind.) 112 N. E. 7.

fund being kept intact for the remainderman.11 Where the beneficiary takes but a life estate in money he is entitled to the interest or income only, and the principal is retained by the trustee or executor.12

§ 979. Gift of Income of Personal Property.

A bequest of the income of personal property is a gift. of a life estate. 13 In the gift of a mere life estate in personalty, with remainder over, there is no implication that the beneficiary may spend or diminish the principal. A gift of the income is absolute so far as the income is concerned, unless its use be limited. 14 If the use of the income be not limited, it belongs to the legatee absolutely; and in the fund he has a life estate but without the right to expend it.15

§ 980. Life Estate in Personalty With Power of Disposition.

A testator may confer a life estate in personalty with remainder over, coupled with the power in the life tenant to make an absolute disposition of the property. The rule is the same whether the property be real or personal.16 Wagoner's Estate, (N. J. Eq.) 97 Atl. 893.

11 "It is not true, as argued by counsel for the defendant in error, that a bequest of money will always vest an absolute estate in the beneficiary on the theory that the enjoyment means the destruction. A trust may be created so that the beneficiary may have only the right to the interest or income of a fund and the fund itself kept intact for remaindermen."-Wixon v. Watson, 214 Ill. 158, 73 N. E. 306.

12 Harrison's Exr. v. Stockton's Exr., 19 N. J. Eq. 235, 243; Van

Thus it is held that a bequest of personalty for life only is not converted into an absolute gift by reason of being coupled with the power of absolute disposition." What is really given is a life estate coupled with a power and not an absolute gift.18 As with realty, however, the authorities are conflicting, and some hold that a bequest of personalty for life with an unlimited power of disposition conveys an absolute interest.19 Other authorities hold that the power of disposal by the life tenant in personalty is only co-extensive with the estate which he takes under the will and means only such disposal as a tenant for life could make.20

Where but a life estate in personalty is created with remainder over, although a power of disposition be granted, if it be not exercised the property will pass to the remainderman at the death of the life holder.21

Where the testator authorizes his wife to sell and dispose of his personal estate as she may see fit, for her own support according to her condition in life and for the benefit of his estate so far as she may deem proper, a life estate is created therein.-Cresap v. Cresap, 34 W. Va. 310, 12 S. E. 527.

17 Bradly v. Westcott, 13 Ves. Jun. 446, 450; Boyd v. Strahan, 36 Ill. 355, 357; Copeland v. Barron, 72 Me. 206; Wooster v. Cooper, 53 N. J. Eq. 682, 33 Atl. 1050; Matter of French, 52 Hun 303, 5 N. Y. .Supp. 249.

"If the property is for her use during her natural life, it is difficult, if not impossible, to con

ceive how she can have an absolute power of disposition."-Goudie v. Johnston, 109 Ind. 427, 10 N. E. 296.

18 Dallinger v. Merrill, 224 Mass. 534, 113 N. E. 279.

19 Patty v. Goolsby, 51 Ark. 61, 9 S. W. 846; Wells v. Doane, 3 Gray (69 Mass.) 201; Matthis v. Rhea, 23 N. C. 394; Mercur's Estate, 151 Pa. St. 49, 24 Atl. 1094; Davis V. Richardson, 10 Yerg. (Tenn.) 290, 31 Am. Dec. 581.

See § 973.

20 Dickinson v. Griggsville Nat. Bank, 111 Ill. App. 183.

21 Webb v. Webb, 130 Iowa 457, 104 N. W. 438.

See § 976.