Parker, C. J.
The devise in this case does not constitute an estate tail. It seems clear that the testator did not intend to constitute such an estate. There are sufficient circumstances to show that by the phrase, “ in case she' should die and leave no issue,” he intended issue living at the decease of Huldah Straw, and not any indefinite failure of issue. Hall v. Chaffee, 14 N. H. Rep. 215; 3 Myl. & Craig 127, 153, and note. If the phraseology might, in some connections, be construed to mean an indefinite failure of issue, against its plain and ordinary import, the devise to Huldah Straw, the daughter, which [329]*329appears to authorize her to appropriate so much of the property as she should need for her support, and the limitation over to the defendant being, in effect, of what she shall not need for her support, in case she should leave no issue, tends very strongly to show that the devise over was to take effect, if it ever became effective, at her decease ; and especially is this apparent, when he couples the devise over to the defendant with a condition by which he is to pay $200 to Huldah Straw, the daughter of Joseph Straw, a nephew, which, of itself, is sufficient to show that an indefinite failure of issue was not intended. 1 B. & Ald. 713, Doe v. Webber. Superadded to this is a further provision, that in case of the death of the defendant, without issue, the property shall go to the testator’s lawful heirs. This serves to show that the testator contemplated that the final disposition of the property, under the special provisions of the will, would take place on the decease of the daughter and of the defendant, at which time, if not taken under the will by the issue of Huldah Straw, at her decease, or by the issue of the defendant, upon his decease, the will gave it to the right heirs of the testator, and of course ceased to operate further upon it.
Here is somewhat more than enough to show that a definite failure of issue, on the decease of the daughter, Huldah Straw, was intended; and the case is another instance to show the ordinary meaning of a testator, when he provides for a further disposition of his estate, if the first taker shall die and leave no issue, and nothing is superadded to aid in the construction of that phraseology. The testator in this case would doubtless have intended a limitation over at the same point of time, if he had made a simple limitation over, in such words, without any of the special circumstances which tend to fortify their common meaning.
There is nothing, then, in the language of this will to require us either to follow the course, of decisions upon [330]*330that subject which have, in so many cases, defeated the intention of testators, by substituting, through the application of an artificial and technical rule of law, a different estate from that which the testator intended; or to determine that the law is “ more honored in the breach than in the observance” of those decisions. There is authority enough of a contrary character to justify this latter conclusion.
It may be proper to suggest, farther, that on the supposition that estates tail (which are not in accordance with our laws, generally, for the disposition of property), should be abolished here, it would no longer be possible to follow those decisions, because the will could not be construed to give an estate which the law did not permit to exist, without destroying the provision itself. But no court could say, in such a case, that the provision of the will was void because it constituted an estate tail, when in fact the testator never contemplated the constitution of such an estate, and the will was capable of a different construction.
There can be no reasonable doubt respecting the intention of the testator in this case. He designed to give all his estate to his daughter ; but in relation to'his real estate what she should' not need of it for her support was, on her decease, if she left no issue, to go to the defendant, he paying $200 to a daughter of a nephew of the testator, giving his daughter in effect, in that contingency, a life estate in the real property, with a power of alienation, so far as should be necessary for her support.
It is the duty of the court to sustain this intention of the testator, if it may be done without violating legal principles. The question is, whether this intention can be carried into effect consistently with the rules of the law.
It is clear that there can be no limitation over after a devise of an absolute fee simple. If the whole estate has passed, unconditionally, there is nothing left to limit over. [331]*331But there may be a devise of defeasible fee simple, and the limitation over of another fee upon the happening of the event which defeats the first. It is the common case, of an executory devise; and the inquiry arises, in every case where a testator makes a limitation over after-wards which may import a fee, whether the first disposition is in fact an absolute fee, so that the limitation over is void, or whether that disposition is only of a defeasible fee; and the limitations may have an operation in giving a construction to the preceding clause.
There are authorities to show that there can be no limitation over where there is a general power of disposition in the first taker, because such limitation over is inconsistent with or repugnant to the power.
This is certainly not a necessary result from any legal principle, for a general power of disposition does not necessarily imply ownership. In fact, the existence of such a power, as a technical power, excludes the idea of an absolute fee simple in the party who possesses the'power. The absolute fee simple, including and involving the power of disposition, no technical power, as a mere power, could exist in the same party, separate from and independent of it. It would be preposterous for the owner of an absolute estate in fee simple to make a conveyance of his estate,, under a technical power over it, .even if the language in which the constitution of a power is usually expressed were supcradded to the conveyance in fee by which he took his estate.
There is nothing incongruous, however, in holding that the gift of such a power, superadded to language which might otherwise be construed as conveying an absolute fee, tends to limit the preceding phraseology, so that it is not to be construed as creating such an estate.
But it is not necessary in this ease that we should controvert the opinion that there can be no limitation over, after the gift of a general power of disposition of an estate.
[332]*332This will gave to Huldah Straw neither a fee simple absolute nor a general power of disposition over the property. In the same clause by which he gives the property to her and her heirs, after paying his debts and funeral charges, is the prqvision, but in case “ she should die and leave no issue, so much of my real estate as she shall not need for her support during her natural life, I give and bequeath to James Straw,” &c. It is clear from this that he did not intend that she should have such afee or power as would give her the general ownership. But if she had lived she would have had, by implication, a power of disposing of so much as she should need for her support.
It is as if he had said, “ I give my real estate to my daughter, Huldah Straw, in fee simple, which fee is to be defeated by her death without issue, living at that time.
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Parker, C. J.
The devise in this case does not constitute an estate tail. It seems clear that the testator did not intend to constitute such an estate. There are sufficient circumstances to show that by the phrase, “ in case she' should die and leave no issue,” he intended issue living at the decease of Huldah Straw, and not any indefinite failure of issue. Hall v. Chaffee, 14 N. H. Rep. 215; 3 Myl. & Craig 127, 153, and note. If the phraseology might, in some connections, be construed to mean an indefinite failure of issue, against its plain and ordinary import, the devise to Huldah Straw, the daughter, which [329]*329appears to authorize her to appropriate so much of the property as she should need for her support, and the limitation over to the defendant being, in effect, of what she shall not need for her support, in case she should leave no issue, tends very strongly to show that the devise over was to take effect, if it ever became effective, at her decease ; and especially is this apparent, when he couples the devise over to the defendant with a condition by which he is to pay $200 to Huldah Straw, the daughter of Joseph Straw, a nephew, which, of itself, is sufficient to show that an indefinite failure of issue was not intended. 1 B. & Ald. 713, Doe v. Webber. Superadded to this is a further provision, that in case of the death of the defendant, without issue, the property shall go to the testator’s lawful heirs. This serves to show that the testator contemplated that the final disposition of the property, under the special provisions of the will, would take place on the decease of the daughter and of the defendant, at which time, if not taken under the will by the issue of Huldah Straw, at her decease, or by the issue of the defendant, upon his decease, the will gave it to the right heirs of the testator, and of course ceased to operate further upon it.
Here is somewhat more than enough to show that a definite failure of issue, on the decease of the daughter, Huldah Straw, was intended; and the case is another instance to show the ordinary meaning of a testator, when he provides for a further disposition of his estate, if the first taker shall die and leave no issue, and nothing is superadded to aid in the construction of that phraseology. The testator in this case would doubtless have intended a limitation over at the same point of time, if he had made a simple limitation over, in such words, without any of the special circumstances which tend to fortify their common meaning.
There is nothing, then, in the language of this will to require us either to follow the course, of decisions upon [330]*330that subject which have, in so many cases, defeated the intention of testators, by substituting, through the application of an artificial and technical rule of law, a different estate from that which the testator intended; or to determine that the law is “ more honored in the breach than in the observance” of those decisions. There is authority enough of a contrary character to justify this latter conclusion.
It may be proper to suggest, farther, that on the supposition that estates tail (which are not in accordance with our laws, generally, for the disposition of property), should be abolished here, it would no longer be possible to follow those decisions, because the will could not be construed to give an estate which the law did not permit to exist, without destroying the provision itself. But no court could say, in such a case, that the provision of the will was void because it constituted an estate tail, when in fact the testator never contemplated the constitution of such an estate, and the will was capable of a different construction.
There can be no reasonable doubt respecting the intention of the testator in this case. He designed to give all his estate to his daughter ; but in relation to'his real estate what she should' not need of it for her support was, on her decease, if she left no issue, to go to the defendant, he paying $200 to a daughter of a nephew of the testator, giving his daughter in effect, in that contingency, a life estate in the real property, with a power of alienation, so far as should be necessary for her support.
It is the duty of the court to sustain this intention of the testator, if it may be done without violating legal principles. The question is, whether this intention can be carried into effect consistently with the rules of the law.
It is clear that there can be no limitation over after a devise of an absolute fee simple. If the whole estate has passed, unconditionally, there is nothing left to limit over. [331]*331But there may be a devise of defeasible fee simple, and the limitation over of another fee upon the happening of the event which defeats the first. It is the common case, of an executory devise; and the inquiry arises, in every case where a testator makes a limitation over after-wards which may import a fee, whether the first disposition is in fact an absolute fee, so that the limitation over is void, or whether that disposition is only of a defeasible fee; and the limitations may have an operation in giving a construction to the preceding clause.
There are authorities to show that there can be no limitation over where there is a general power of disposition in the first taker, because such limitation over is inconsistent with or repugnant to the power.
This is certainly not a necessary result from any legal principle, for a general power of disposition does not necessarily imply ownership. In fact, the existence of such a power, as a technical power, excludes the idea of an absolute fee simple in the party who possesses the'power. The absolute fee simple, including and involving the power of disposition, no technical power, as a mere power, could exist in the same party, separate from and independent of it. It would be preposterous for the owner of an absolute estate in fee simple to make a conveyance of his estate,, under a technical power over it, .even if the language in which the constitution of a power is usually expressed were supcradded to the conveyance in fee by which he took his estate.
There is nothing incongruous, however, in holding that the gift of such a power, superadded to language which might otherwise be construed as conveying an absolute fee, tends to limit the preceding phraseology, so that it is not to be construed as creating such an estate.
But it is not necessary in this ease that we should controvert the opinion that there can be no limitation over, after the gift of a general power of disposition of an estate.
[332]*332This will gave to Huldah Straw neither a fee simple absolute nor a general power of disposition over the property. In the same clause by which he gives the property to her and her heirs, after paying his debts and funeral charges, is the prqvision, but in case “ she should die and leave no issue, so much of my real estate as she shall not need for her support during her natural life, I give and bequeath to James Straw,” &c. It is clear from this that he did not intend that she should have such afee or power as would give her the general ownership. But if she had lived she would have had, by implication, a power of disposing of so much as she should need for her support.
It is as if he had said, “ I give my real estate to my daughter, Huldah Straw, in fee simple, which fee is to be defeated by her death without issue, living at that time. But I give her the power of disposing of so much of the property as she may need for her support, even if the fee given to her is defeated by her death without issue. If she dies without issue, I give what she shall not have disposed of under this power to James Straw,” &c.
Upon this construction it appears not only that she was not to have an absolute fee, but that her power of disposition was not to be a general power. It was to bé a power limited to what she should need for her support, and so the limitation over to the defendant is good, within all the decisions upon that point.
Had she lived and undertaken to exercise the power, the question might have arisen, whether the necessity was commensurate with the attempt, which serves to show that the power was not a general but a limited power.
This devise over to the defendant is not to be held void, because, in the exercise of her power, she might, if her need had required it, have defeated the devise over to him by a disposition of the whole of the property. That does not show the power to be a general one. It merely proves that a limited power might possibly, have exhausted the property.
[333]*333On this construction, also, the devise to the defendant is good as an original devise, (Iluldah Straw having died in the life time of the testator,) even within the authorities cited by the plaintiff’s counsel. Some of those eases are to the effect that if the limitation over would have been void, because repugnant to the first disposition, provided that took effect, it cannot be good as an original devise, notwithstanding the first disposition becomes nugatory by the death of the first devisee, and the consequent lapse of the devise.
Aside from authority, this is certainly not a necessary result. Supposing the devise to Huldah Straw to have been beyond question a fee simple absolute, and that the limitation over to the defendant, in case of her death without issue, would have been repugnant and void, if Iluldah Straw had survived the testator, because of the repugnance. On what principle must it be held void, she, having died in the testator’s life time, the devise to her having thereby lapsed, and there being at his death therefore no repugnancy. The will becomes operative at the death of the testator. Before that time it had no vitality. So long as the will had no operation, the repugnancy was but a possibility. If Iluldah Straw had survived the testator, she would, in the case supposed, have taken an absolute fee, and the devise to the defendant would have been void, because the estate which purported to be given to him was repugnant to the estate which vested in her, and for that reason alone. By her death, in the life time of the testator, leaving no issue, no part of the will became effective, to which the devise to the defendant' could be repugnant, and the reason why the devise to the defendant should be void seems to fail altogether.
On the supposition, therefore, that there would have been a repugnancy if Iluldah Straw had survived the testator, yet, as she in fact died in his life time, it might well be held that the devise to her, and the power intended to [334]*334be given her, becoming void before tbe decease of the testator, by her death, without issue, that provision in the will was to be regarded as if it had never existed: If the provision is inoperative as a devise and as a power of alienation, it certainly might be held to be inoperative to defeat the devise to the defendant, because, whether as an estate or a power, neither in fact ever vested or existed.
But here, as we have seen, there would have been no repugnancy if Huldah Straw had survived the testator, and taken the estate devised to her.
The devise to the defendant, which, if Huldah Straw had lived, would have constituted an executory devise, changed to a vested estate, with a right of possession, she being dead without issue at the testator’s decease.
It has not been, argued that the vesting of the estate in Huldah Straw was a condition precedent to render the devise to the defendant operative, nor is there any thing in the provisions of the will which could sustain such a position.
Judgment for the defendant.