"In a devise of land in fee simple, a condition against all alienation is void, because repugnant to the estate devised; for the same reason, a limitation over, in case the first devisee shall alien, is equally void, whether the estate be legal or equitable."

All modern cases hold the rule to be that where an estate or interest in land is devised, or personalty is bequeathed, in clear and absolute language, without words of limitation, the devise or bequest can not be defeated or limited by a subsequent doubtful provision inferentially raising a limitation upon the prior devise or bequest. When there is an absolute or unlimited devise or bequest of property, a subsequent clause, expressing a wish, desire or direction for its disposition after the death of the devisee or legatee, will not defeat the devise or bequest or limit the estate or interest in the property to the right to possess and use during the life of the devisee or legatee. The absolute devise or bequest stands and the other clause is to be regarded as presenting precatory language. The will must be interpreted to invest in the devisee or legatee the fee simple title of the land and the absolute property in the subject of the bequest. Williams v. Allison, 33 Iowa, 278; Benkert v. Jacoby, 36 Iowa, 273; Rona v. Meier, 47 Iowa, 607; Alden v. Johnson, 63 Iowa, 124, 18 N. W. Rep., 696; In re Will of Burbank, 69 Iowa, 378, 28 N. W. Rep., 648; McKenzie's Appeal, 41 Conn., 607; Jackson, ex dem., v. Bull, 10 Johns., 19; Mitchell v. Morse, 77 Me., 423, 1 Atl. Rep., 141; Ramsdell v. Ramsdell, 21 Me., 288; Jones v. Bacon, 68 Me., 34; Harris v. Knapp, 21 Pick., 412; Lynde v. Estabrook, 7 Allen,

68; Fiske v. Cobb, 6 Gray, 144; Gifford v. Choate, 100 Mass., 343; Williams v. Worthington, 49 Md., 572; Foose v. Whitmore, 82 N. Y., 405; Campbell v. Beaumont, 91 N. Y., 464; Stowell v. Hastings, 59 Vt., 494, 8 Atl. Rep., 738; Seibert v. Wise, 70 Pa. St., 147; Moore v. Sanders, 15 S. C., 440; Canedy v. Jones, 19 S. C., 297, and Anderson v. Cary, 36 Ohio St., 506.

In Bills v. Bills, 45 N. W. Rep., 748 (80 Iowa, 269), the syllabus is as follows:

"Where a testator devises all his personal and real property to his wife, except as thereafter provided in his will, and in a subsequent clause states that it is his 'desire' that what remains at her decease shall be divided between named persons, the wife takes a fee-simple in the realty, and the absolute property in the personalty, the latter clause being merely precatory."

In Snodgrass v. Brandenburg, 164 Ind., 59 (72 N. E. Rep., 1030), the court uses this language at page 69:

"If, upon an examination of a will, a court concludes that it was the purpose of the testator to make a grant, and that he attempted, by subsequent language, to create a legal estate in derogation of the grant, that is the end of the discussion, for a testator must effectuate his intent within the rules of law. The rule that we have invoked does not apply to such cases; it is one of construction, and is wholly consistent with the proposition that the court will explore the four corners of the instrument to bring out its meaning; but, if it is found that one clause, standing alone, clearly evinces a purpose to create a certain interest, and the sub

sequent language merely operates to create a doubt about the testator's intent in that particular, the latter words will be disregarded."

In Stowell et al. v. Stowell, 8 Atl. Rep., 738 (59 Vt., 494), the first proposition of the syllabus is: "A testator devised the residue of his estate to his wife 'for her benefit and support, to use and dispose of as she may think proper,' and then provided that 'if any of the estate should be left in my wife's possession at her death,' that the same be divided between his brothers and sisters. Held, that the wife took an absolute estate, and that the remainder over was void for repugnancy."

In Alden v. Johnson, 18 N. W. Rep., 696 (63 Iowa, 124), the first proposition of the syllabus is as follows:

"Where property is devised in fee-simple to a widow, and words are added directing the disposition of what remains at her death, such words, if precatory, do not affect her title, and, if intended to impose a condition, are void, as repugnant thereto." In the opinion the court says, at page 697:

"If they [the words of the will] be regarded as imposing a condition or limitation to the effect that she shall take less than the unqualified and absolute interest and title in the property, they are repugnant to prior language of the instrument devising to her the fee-simple title in the land, and an unqualified right to the personal property, and are therefore void."

See also Widows' Home v. Lippardt, 70 Ohio St., 261, and Darlington v. Compton, 20 C. C., 242. In Mitchell v. Morse, 1 Atl. Rep., 141 (77 Me., 423), the syllabus is:

"A devise to M., without words of limitation, remainder over in case of M.'s death, vests an estate in fee-simple in M., and the devise over is void."

In Jackson v. Robins, 16 Johns., 537, the court in the syllabus says:

"Where A. devises all his real and personal estate to his wife, and in case of her death, without giving, &c. by will, or otherwise selling or assigning the said estate, then he devises the same to his daughter D.: * * * [the wife] takes the entire fee simple, both by force of the word estate, and of the absolute power given by the will, and the subsequent limitation, being repugnant thereto, is void, either as a remainder, * * * or as an executory devise,

* in either case, it is void. Where there is a devise for life, in express terms, a power of disposal annexed, does not enlarge it to a fee; but where to a general devise, without any specification of the quantity of interest, an absolute power of disposal is annexed, the devisee takes a fee."

In the opinion the court says, at page 588:

"We may lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is, where the testator gives to the first taker an estate for life only. * * *

"When he [the testator] attempted to ingraft an executory devise or limitation over, upon a fee

* he did what was incompatible with his other and principal intention, and which the courts must, of necessity, reject as repugnant and void."

In the syllabus of McKenzie's Appeal, 41 Conn., 607, the court holds:

"A testator gave his widow certain personal estate and provided that if any remained at her decease it should be equally divided among his children. Held that an absolute power of disposal was given to the widow and that the gift over was inconsistent with this power and therefore void."

In the opinion in the same case, at page 156, the court cites the case of Jackson, ex dem. Brewster, v. Bull, 10 Johns., 19, and says the language of the testator was: "In case my son should die without lawful issue, the said property he dies possessed of, I will," etc.

The words were held to imply a power of alienation by the devisee and consequently an absolute ownership repugnant to the limitation and destructive of it.

In Harris v. Knapp, 21 Pick., 412, it is said at page 416:

*

"The words 'whatever shall remain', necessarily mean that portion of the property bequeathed, which shall be undisposed of at her decease; * and therefore the implication is inevitable, that she had a power to make such disposition. This is inconsistent with the supposition, that the whole was to remain undiminished in the hands of the executor, or other trustee, for the purpose of satisfying the gift over."

In Flinn v. Davis et al., 18 Ala., 132, the third proposition of the syllabus reads:

"When by the terms of a will the first devisee is given the absolute right to dispose of the property, a limitation over of so much as he may leave undisposed of at his death, is void for repugnancy."