McHaney, J.,
(after stating’the facts). The question for decision on this appeal is whether the complaint states facts sufficient to constitute a cause of action. Counsel for appellants first insist that the decree of the chancery court of October 2, 1925, construed the will of Nathan Combs “as devising a defeasible fee in said real property to Isaac G-. Combs, and, upon his death without issue, the remainder to the sons of Alfred, Sewell and Isaac Combs.” In this contention we believe counsel is in error, for this is not the effect of the finding of the chancery court. It found “that Isaac G-. Combs died testate in Washington County, Arkansas, March 6, 1925, and that his last will and testament has been duly probated in the manner required by law, and that said last will and testament provided ‘that, after the payme'ht of all my just debts and funeral expenses, I will, devise and bequeath all my property, both real and personal, to my beloved wife, Martha Combs, to her sole'use and benefit, ’ and that, under this provision of said will, plaintiff, Martha Combs, was the sole beneficiary and legatee under said will, and, as such sole legatee, was the owner in fee of all the real and persorial property of which the said Isaac Gr. Combs died seized and possessed, and that the said Isaac Gr. Combs died without having born to him any child or children, and that he died seized and possessed of the real estate situated in Washington County, Arkansas, which he derived from and under the last will and testament of his father.” Therefore it is manifest that, instead of the court decreeing that Isaac Gr. Combs was devised a defeasible estate under the will of his father, the court did find and decree that Isaac Gr. Combs, by the will of his father, Nathan, became the owner in fee simple of said lands, and that Martha Combs became the owner thereof in fee as sole beneficiary and legatee under the will of her husband. If Isaac G. Combs got only a defeasible fee, how could his wife get the absolute fee under his will? Certainly she could acquire by virtue of his will no greater interest in the lands than he had. This being true, appellants’ whole argument, based on this assumption, must fall, as it is without foundation to support it.
Under that paragraph of the will of Nathan Combs hereinbefore quoted, the residue of the testator’s estate was given to his wife, Elizabeth, and his son, Isaac, for and during their natural lives, “with remainder in fee to Isaac Gr. Combs, if he should survive my said wife.” The lower court found that this .clause gave to Isaac G. Combs the fee simple in said lands, and that his will gave to his wife, Martha, the same estate, the fee, and we think the court was right in so holding. The clause following, after vesting the fee in the remainder in Isaac G. Combs, is: “And in the event my said son, Isaac G. Combs, should fail to have a child or children born to him, and should die seized and possessed of any of said property, I desire and will that the same be divided equally between the sons of my three brothers,” naming them.
Under the decisions of this and other courts generally, this clause of the will must be held to be mere surplusage, and void, fox* the reasoxx that it is a subsequent clause attempting to limit a cleax* fee already given by the testator.
The gexxeral rule is laid down ixx 40 Cyc, pages 1585, as follows: “A limitation over, after a clear fee is given, oxx the death of the first taker, at a certain age, or without issue, children, or heirs, or intestate, or on his or her marriage, is usually void, aixd leaves a fee in the first taker. So a fee may be created notwithstanding other restrictions. Where property is given ixx clear language sufficient to convey an absolute fee, the interest thus given should not be taken away or diminished’ by any subsequexxt, vague, or gexxeral expressions in the will. Where fee .is clearly given, a limitation over of the remainder is void as inconsistent with the fee granted, whether the gift over is expressed to be of what remains, or may be left, or the residue, or is on death of the first taker without having disposed of the property.”
Many authorities are cited in the footnotes to sustain the above declaration of law.
Ixx the case of Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, the following clause ixx a will was under consideration: “All the rest, residue and remainder of my estate, real as well as personal, and wheresoever situated, I hereby give, devise and bequeath to my beloved wife, Minna Elle, to have and to hold the same ixx fee simple forever. But, in the case of the death of my beloved wife, it is my will that all the estate then remaining and not disposed of by her by a last will or other writing shall pass to my said brother, Moritz Elle, and my sister,' Henrietta Bernstein, or their heirs ixx equal parts.” This is a very similar paragraph to the one ixx question, and, in construing same, this court said: “The property in controversy was devised to Minna Elle ixx fee simple 'with an absolute power of disposition either by will or devise clearly and unmistakably implied,’ accoi*ding to the authorities cited, the limitation over to Moritz Elle and Henrietta Bernstein is void.”
Tlie cases on this question were exhaustively reviewed by Judge Battle, who wrote the opinion in the Bernstein case, and, among others, he quoted from Page on Wills, '§ 684, which, as said in Davis v. Sparks, 135 Ark. 417, 205 S. W. 804, “is peculiarly applicable to the ease in hand.”
It follows: “It not infrequently happens that a testator disposes of property in fee, .and then attempts to provide for the disposition of the property after the death of the devisee in fee simple. A provision of this sort is to be carefully distinguished from the cases where a fee simple is cut down to a life estate by a devise over after the death of the first taker. The distinction between the two classes of cases, though not strongly marked, is well recognized by the courts. If the devise over upon the death of A is intended to pass entire property, it is evident that the testator contemplated that A should take only a life estate, without any power of disposing of his property for a longer term than his own life. But where the devise over upon the death of A shows that A was vested with a fee simple estate, and that testator wishes him to have such an estate, but to direct the course of its descent upon his death, the limitation over after the fee is repugnant to the nature of the estate, and void. * * * A condition that, if devisee does not dispose of his property in any way during his lifetime, it shall pass to certain named persons, is held to be void.” GarlLee v. Ellsberry, 82 Ark. 209, 101 S. W. 407; Davis v. Sparks, 135 Ark. 417, 205 S. W. 803; Archer v. Palmer, 112 Ark. 527, 167 S. W. 99; Fies v. Fiest, 145 Ark. 351, 224 S. W. 623.
Clearly Isaac G-. Combs took the fee, and had the power to convey, either by deed or by will, and this is further evidenced by the clause, “and should die seized and possessed of any of said property.” Evidently this contemplated that he might sell and dispose of the property during his lifetime, conveying the fee thereto, and, if so, he could dispose of it by will at his death. Having done so, the fee vested in his wife, Martha Combs.
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McHaney, J.,
(after stating’the facts). The question for decision on this appeal is whether the complaint states facts sufficient to constitute a cause of action. Counsel for appellants first insist that the decree of the chancery court of October 2, 1925, construed the will of Nathan Combs “as devising a defeasible fee in said real property to Isaac G-. Combs, and, upon his death without issue, the remainder to the sons of Alfred, Sewell and Isaac Combs.” In this contention we believe counsel is in error, for this is not the effect of the finding of the chancery court. It found “that Isaac G-. Combs died testate in Washington County, Arkansas, March 6, 1925, and that his last will and testament has been duly probated in the manner required by law, and that said last will and testament provided ‘that, after the payme'ht of all my just debts and funeral expenses, I will, devise and bequeath all my property, both real and personal, to my beloved wife, Martha Combs, to her sole'use and benefit, ’ and that, under this provision of said will, plaintiff, Martha Combs, was the sole beneficiary and legatee under said will, and, as such sole legatee, was the owner in fee of all the real and persorial property of which the said Isaac Gr. Combs died seized and possessed, and that the said Isaac Gr. Combs died without having born to him any child or children, and that he died seized and possessed of the real estate situated in Washington County, Arkansas, which he derived from and under the last will and testament of his father.” Therefore it is manifest that, instead of the court decreeing that Isaac Gr. Combs was devised a defeasible estate under the will of his father, the court did find and decree that Isaac Gr. Combs, by the will of his father, Nathan, became the owner in fee simple of said lands, and that Martha Combs became the owner thereof in fee as sole beneficiary and legatee under the will of her husband. If Isaac G. Combs got only a defeasible fee, how could his wife get the absolute fee under his will? Certainly she could acquire by virtue of his will no greater interest in the lands than he had. This being true, appellants’ whole argument, based on this assumption, must fall, as it is without foundation to support it.
Under that paragraph of the will of Nathan Combs hereinbefore quoted, the residue of the testator’s estate was given to his wife, Elizabeth, and his son, Isaac, for and during their natural lives, “with remainder in fee to Isaac Gr. Combs, if he should survive my said wife.” The lower court found that this .clause gave to Isaac G. Combs the fee simple in said lands, and that his will gave to his wife, Martha, the same estate, the fee, and we think the court was right in so holding. The clause following, after vesting the fee in the remainder in Isaac G. Combs, is: “And in the event my said son, Isaac G. Combs, should fail to have a child or children born to him, and should die seized and possessed of any of said property, I desire and will that the same be divided equally between the sons of my three brothers,” naming them.
Under the decisions of this and other courts generally, this clause of the will must be held to be mere surplusage, and void, fox* the reasoxx that it is a subsequent clause attempting to limit a cleax* fee already given by the testator.
The gexxeral rule is laid down ixx 40 Cyc, pages 1585, as follows: “A limitation over, after a clear fee is given, oxx the death of the first taker, at a certain age, or without issue, children, or heirs, or intestate, or on his or her marriage, is usually void, aixd leaves a fee in the first taker. So a fee may be created notwithstanding other restrictions. Where property is given ixx clear language sufficient to convey an absolute fee, the interest thus given should not be taken away or diminished’ by any subsequexxt, vague, or gexxeral expressions in the will. Where fee .is clearly given, a limitation over of the remainder is void as inconsistent with the fee granted, whether the gift over is expressed to be of what remains, or may be left, or the residue, or is on death of the first taker without having disposed of the property.”
Many authorities are cited in the footnotes to sustain the above declaration of law.
Ixx the case of Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, the following clause ixx a will was under consideration: “All the rest, residue and remainder of my estate, real as well as personal, and wheresoever situated, I hereby give, devise and bequeath to my beloved wife, Minna Elle, to have and to hold the same ixx fee simple forever. But, in the case of the death of my beloved wife, it is my will that all the estate then remaining and not disposed of by her by a last will or other writing shall pass to my said brother, Moritz Elle, and my sister,' Henrietta Bernstein, or their heirs ixx equal parts.” This is a very similar paragraph to the one ixx question, and, in construing same, this court said: “The property in controversy was devised to Minna Elle ixx fee simple 'with an absolute power of disposition either by will or devise clearly and unmistakably implied,’ accoi*ding to the authorities cited, the limitation over to Moritz Elle and Henrietta Bernstein is void.”
Tlie cases on this question were exhaustively reviewed by Judge Battle, who wrote the opinion in the Bernstein case, and, among others, he quoted from Page on Wills, '§ 684, which, as said in Davis v. Sparks, 135 Ark. 417, 205 S. W. 804, “is peculiarly applicable to the ease in hand.”
It follows: “It not infrequently happens that a testator disposes of property in fee, .and then attempts to provide for the disposition of the property after the death of the devisee in fee simple. A provision of this sort is to be carefully distinguished from the cases where a fee simple is cut down to a life estate by a devise over after the death of the first taker. The distinction between the two classes of cases, though not strongly marked, is well recognized by the courts. If the devise over upon the death of A is intended to pass entire property, it is evident that the testator contemplated that A should take only a life estate, without any power of disposing of his property for a longer term than his own life. But where the devise over upon the death of A shows that A was vested with a fee simple estate, and that testator wishes him to have such an estate, but to direct the course of its descent upon his death, the limitation over after the fee is repugnant to the nature of the estate, and void. * * * A condition that, if devisee does not dispose of his property in any way during his lifetime, it shall pass to certain named persons, is held to be void.” GarlLee v. Ellsberry, 82 Ark. 209, 101 S. W. 407; Davis v. Sparks, 135 Ark. 417, 205 S. W. 803; Archer v. Palmer, 112 Ark. 527, 167 S. W. 99; Fies v. Fiest, 145 Ark. 351, 224 S. W. 623.
Clearly Isaac G-. Combs took the fee, and had the power to convey, either by deed or by will, and this is further evidenced by the clause, “and should die seized and possessed of any of said property.” Evidently this contemplated that he might sell and dispose of the property during his lifetime, conveying the fee thereto, and, if so, he could dispose of it by will at his death. Having done so, the fee vested in his wife, Martha Combs.
Counsel for appellants nest contend that, even though this may be the correct rule, and although Martha Combs may have taken the fee, yet he says she renounced the will of her husband, and that she and J. W. and A. T. Combs are estopped to raise the question of the invalidity of the subsequent clause in the will of Nathan Combs, aforesaid; that a devisee or legatee who has accepted benefits under a will is estopped to deny its validity. No doubt this is a correct declaration of law, but we do not think the facts, as reflected solely by the decrees of the chancery court as set out in appellant’s complaint, which is the only evidence in the record now before us, justify the conclusion that appellees assumed or took any position in that cause contradictory to the one they now take in this case. The pleadings in the chancery court in the Martha Combs case are not before us. Judging from the decrees in the record we are of the opinion that appellees were seeking the construction of the two wills, that Martha Combs desired a construction of -the will of Nathan, in which the two appellees joined, to ascertain who was entitled to the property under said clause of said will, if same was legal, and the court decreed that appellees, J. W. and A. T. Combs, being the survivors of the class mentioned in said will, would take the whole of said property. She then asked that said property be decreed to them, or, in other words, that her title to said property under the will of her husband be divested out of her and vested in them. We do not think this amounted to a renunciation or a refusal to accept the legacy under the will of her husband. At least it cannot be said that either she or the other appellees accepted any benefits under the will by her action, but, on the contrary, she surrendered certain rights under the will, and the other appellees accepted her grant or gift. The effect of her action was to grant or give to J. W. and A. T. Combs, as the only survivors of the class mentioned in the will of Nathan Combs, the property in controversy, and the decree of the court passed the title as per her request.
Appellants’ next contention is that, the complaint having alleged that C. F. Comhs and H. H. Combs are the sons of Sewell Combs, named in the will of Nathan Combs, and that Nathan Combs .never had a brother named Sewell, bnt that said Sewell Combs, of which said appellants were sons, was in fact a nephew of Nathan Combs, and that it was the intention of Nathan Combs to designate the sons of his nephew, Sewell Combs, instead of his brother, Sewell Combs, states a cause of action. But the language of the will of Nathan Combs was: “To the sons of my three brothers, Alfred, Sewell and Isaac Combs.” The contention of appellants is that Nathan Combs intended only to mention the sons of one brother, Isaac Combs, and intended to mention his two nephews, Alfred and Sewell Combs, instead of his two brothers, Alfred and Sewell Combs. To do so, we would have to change the language of the will to read: “To the sons of one brother, Isaac Combs, and to the sons of two nephews, Alfred- and Sewell Combs.” We cannot do this, and we cannot hold that the testator intended to name the sons of two nephews instead of the sons of the two brothers named. This clause of the will, upon this allegation of the complaint, would be void for uncertainty. 40 Cyc., 1445, announces the rule of the law on this point as follows: “In order that a beneficiary may take under a will, he must be designated therein, either by name or by description, with such certainty that he can be readily identified and distinguished from every other person, otherwise the devise or bequest is void for uncertainty.”
But counsel contends that parol evidence is admissible for identifying the beneficiary. This is always true where there is uncertainty or ambiguity in the designation of the beneficiary. In the case of McDonald v. Shaw, 81. Ark. 240, 98 S. W. 953, cited by appellant, this court said: “It is an elementary rule of construction that a bequest or devise will not fail because of a mere inaccuracy in the designation of the beneficiary, where the meaning of the testator can be gathered with reasonable certainty from the instrument itself, or where the identity of the object of his bounty can be shown by extrinsic evidence; and such evidence is always admissible for the purpose of identifying the beneficiary, where there is uncertainty or ambiguity in the designation.”
A complete answer to this contention is that, in the case at bar, there is no uncertainty or ambiguity in the designation, “to the sons of my three brothers, Alfred, Sewell and Isaac Combs. ’ ’ It does not read to the sons of one brother and two nephews, but to- the sons of three brothers. Therefore parol evidence would not have been admissible in proof of the allegation in the complaint. 40 Cyc., 1440.
The decree of the chancery court dismissing appellants ’ complaint for want of equity is therefore affirmed.