Woodruff, J.
I cannot yield my assent to the argument that (apart from the legal effect of the power of testamentary [31]*31disposition), each devisee was invested with the power to dispose of the entire fee in her lifetime, in her share devised for her benefit. That view of the subject is sought to be inferred from the will “ because the limitation over embraced only such part of the property as shah remain undisposed of at the death of the devisee who shall first die.” This is a partial and disjointed presentation of the terms of the will, and is made the ground of inference that a power to dispose of the estate in the life-time of the devisee was intended by the testator. That is to say, a gift or limitation over of “ whatever may then remain of the same property and estate ” implies that the first taker may dispose of a part, or even-the whole of it.
This lays entirely out of view the preceding language, which in my judgment entirely forbids such implication. First, the testator gives all his estate to his wife and daughter, each the one half thereof, share and share alike. If he had stopped here, our statute, which renders the use of the habendum to heirs, etc., unnecessary to the creation of a fee by devise, would operate, and the devisees would have taken real estate in fee simple. But that statute does not operate where the intent to pass a less estate or interest appears by express terms, or be necessarily implied in the terms of the grant. (1 B. S. 748.) Having used words which at the common law are apt to create a life estate only, but which under the statute might create a fee, the testator' proceeds to limit or restrain the operation of these terms, by declaring the devisee to be “ subject only to the restrictions and provisions in the second item” of his “ will stated and contained.”
That item declares that his wife may make such testamentary disposition of the property so given to her as shall seem to be just and proper; but, in case of her death, intestate and without issue, “ then she shall be deemed to have held the same in trust for and during her life only, and not absolutely or in fee.”
Ho words could more distinctly satisfy the statute, or show more clearly that in the event of her dying intestate without [32]*32issue, the interest devised by the first clause of the will shall be only a life estate.
Doubtless, the terms “in trust” have no legal significance. There was no trust except for herself, and the conveyance to A, in trust for himself for Efe, would certainly give him no greater interest than a life estate.
This express language is even more pointed and precise as to the share of his daughter: In case of her death intestate and without issue, “ she shall be deemed to have held the property cmd estate hereinafter [query, hereinbefore?], given to her in trust, for and during her life only, and not in fee absolutely.”
This very clear and distinct language is not noticed in the opinion below. It relates to the whole estate and property given by the first clause in the will, and in the event contemplated, declares that it shall be deemed a life estate only.
How it matters not, that whether the will devised a fee or only a life estate could not be determined during the life of the first taker—the condition is just as definite and precise as if any other condition or contingency had been mentioned; e. g., suppose the second item had read, “ if A B shall return from Borne during the life of my said daughter, then she shaU be deemed to have held the property and estate given to her herein,- for and during her life only, and not in fee or absolutely.” A clear intent, that, in the event contemplated, the daughter should take a Efe estate only, is thus in terms expressed, and “ in which case I give, devise and bequeath whatever may then remain of the same property and estate, to my wife.” This is supposed to imply power of disposition in the life tenant.
1. Such an implication nuEifies the declared intent that' she shall take “ for and during her Efe only, and not in fee or absolutely”—and it is made the very ground for holding that she did take a fee.
2. This clause is a paraphrase of the term “ remainder to my wife,” a legal phrase entirely understood, and importing that the whole fee, after the expiration of the particular estate, is to go over.
[33]*33It is not “ whatever may remain undisposed of by my said daughter,” or equivalent words, which might involve some probability that the testator supposed he had given her such an interest or power that she might dispose of some part of the property—but it is whatever may remain of the same property and estate, i. e., the remainder therein not above disposed of.
3. The possible inference from that language is not sufficient to overcome the distinct and positive declaration, that she shall be deemed to have held the property for and during her life only.
I feel therefore constrained to reject the construction which would infer from the terms of the will above referred to (irrespective of the power of testamentary disposition), the creation of a life estate with an absolute power of disposition by the life tenant, in his life time, which even before the statute was deemed equivalent to a fee, and which would, of course, make the title of a purchaser absolute.
Such a construction would enable either of the life tenants to convey her own share absolutely, and as effectually without as with, the consent of the other or the contingent remainder man, and is, I think, at war with the plainly expressed intention of the testator.
But it does not necessarily follow from these views, that the plaintiffs cannot convey, and did not tender to the defendant a good title, or at all events a title which neither the plaintiffs, nor their heirs-at-law, nor the heirs-at-law of the testator could afterward impeach.
This, in my judgment, depends upon other considerations than those above adverted to.
1. It should be remembered that the deed of the plaintiffs, which was offered, containing full covenants and warranty of title, will not only invest the defendant with all the estate and interest which is invested in the plaintiffs, or which they can convey, but by estoppel will bar the plaintiffs, and all who shall claim through them as heirs-at-law, from asserting any title to the premises.
2. If the devisee of either half of the premises shaE die [34]*34leaving issue, then the second item of the will has no operation as a qualification of the first clause, and of course the devisee will be deemed to have taken a fee, and her conveyance in fee will have full operation. The devise would not operate as an estate for life in the first taker, with a limitation over to such issue, as purchasers, by force of the devise. But rather the event upon which the estate was to be deemed a life estate only, not happening, the first clause of the will would be left to operate as a devise in fee.
3. If the first taker dies without issue, then the estate would go over to the other devisee (unless the provision in regard to the power of testamentary disposition, prevents). Under our Bevised Statutes (vol. 1, p. 722, art. 1, title 2, ch. 1) such other devisee takes under the will, not a mere possibility, but an expectant future estate, depending on the contingency of the death of the other without issue, intestate.
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Woodruff, J.
I cannot yield my assent to the argument that (apart from the legal effect of the power of testamentary [31]*31disposition), each devisee was invested with the power to dispose of the entire fee in her lifetime, in her share devised for her benefit. That view of the subject is sought to be inferred from the will “ because the limitation over embraced only such part of the property as shah remain undisposed of at the death of the devisee who shall first die.” This is a partial and disjointed presentation of the terms of the will, and is made the ground of inference that a power to dispose of the estate in the life-time of the devisee was intended by the testator. That is to say, a gift or limitation over of “ whatever may then remain of the same property and estate ” implies that the first taker may dispose of a part, or even-the whole of it.
This lays entirely out of view the preceding language, which in my judgment entirely forbids such implication. First, the testator gives all his estate to his wife and daughter, each the one half thereof, share and share alike. If he had stopped here, our statute, which renders the use of the habendum to heirs, etc., unnecessary to the creation of a fee by devise, would operate, and the devisees would have taken real estate in fee simple. But that statute does not operate where the intent to pass a less estate or interest appears by express terms, or be necessarily implied in the terms of the grant. (1 B. S. 748.) Having used words which at the common law are apt to create a life estate only, but which under the statute might create a fee, the testator' proceeds to limit or restrain the operation of these terms, by declaring the devisee to be “ subject only to the restrictions and provisions in the second item” of his “ will stated and contained.”
That item declares that his wife may make such testamentary disposition of the property so given to her as shall seem to be just and proper; but, in case of her death, intestate and without issue, “ then she shall be deemed to have held the same in trust for and during her life only, and not absolutely or in fee.”
Ho words could more distinctly satisfy the statute, or show more clearly that in the event of her dying intestate without [32]*32issue, the interest devised by the first clause of the will shall be only a life estate.
Doubtless, the terms “in trust” have no legal significance. There was no trust except for herself, and the conveyance to A, in trust for himself for Efe, would certainly give him no greater interest than a life estate.
This express language is even more pointed and precise as to the share of his daughter: In case of her death intestate and without issue, “ she shall be deemed to have held the property cmd estate hereinafter [query, hereinbefore?], given to her in trust, for and during her life only, and not in fee absolutely.”
This very clear and distinct language is not noticed in the opinion below. It relates to the whole estate and property given by the first clause in the will, and in the event contemplated, declares that it shall be deemed a life estate only.
How it matters not, that whether the will devised a fee or only a life estate could not be determined during the life of the first taker—the condition is just as definite and precise as if any other condition or contingency had been mentioned; e. g., suppose the second item had read, “ if A B shall return from Borne during the life of my said daughter, then she shaU be deemed to have held the property and estate given to her herein,- for and during her life only, and not in fee or absolutely.” A clear intent, that, in the event contemplated, the daughter should take a Efe estate only, is thus in terms expressed, and “ in which case I give, devise and bequeath whatever may then remain of the same property and estate, to my wife.” This is supposed to imply power of disposition in the life tenant.
1. Such an implication nuEifies the declared intent that' she shall take “ for and during her Efe only, and not in fee or absolutely”—and it is made the very ground for holding that she did take a fee.
2. This clause is a paraphrase of the term “ remainder to my wife,” a legal phrase entirely understood, and importing that the whole fee, after the expiration of the particular estate, is to go over.
[33]*33It is not “ whatever may remain undisposed of by my said daughter,” or equivalent words, which might involve some probability that the testator supposed he had given her such an interest or power that she might dispose of some part of the property—but it is whatever may remain of the same property and estate, i. e., the remainder therein not above disposed of.
3. The possible inference from that language is not sufficient to overcome the distinct and positive declaration, that she shall be deemed to have held the property for and during her life only.
I feel therefore constrained to reject the construction which would infer from the terms of the will above referred to (irrespective of the power of testamentary disposition), the creation of a life estate with an absolute power of disposition by the life tenant, in his life time, which even before the statute was deemed equivalent to a fee, and which would, of course, make the title of a purchaser absolute.
Such a construction would enable either of the life tenants to convey her own share absolutely, and as effectually without as with, the consent of the other or the contingent remainder man, and is, I think, at war with the plainly expressed intention of the testator.
But it does not necessarily follow from these views, that the plaintiffs cannot convey, and did not tender to the defendant a good title, or at all events a title which neither the plaintiffs, nor their heirs-at-law, nor the heirs-at-law of the testator could afterward impeach.
This, in my judgment, depends upon other considerations than those above adverted to.
1. It should be remembered that the deed of the plaintiffs, which was offered, containing full covenants and warranty of title, will not only invest the defendant with all the estate and interest which is invested in the plaintiffs, or which they can convey, but by estoppel will bar the plaintiffs, and all who shall claim through them as heirs-at-law, from asserting any title to the premises.
2. If the devisee of either half of the premises shaE die [34]*34leaving issue, then the second item of the will has no operation as a qualification of the first clause, and of course the devisee will be deemed to have taken a fee, and her conveyance in fee will have full operation. The devise would not operate as an estate for life in the first taker, with a limitation over to such issue, as purchasers, by force of the devise. But rather the event upon which the estate was to be deemed a life estate only, not happening, the first clause of the will would be left to operate as a devise in fee.
3. If the first taker dies without issue, then the estate would go over to the other devisee (unless the provision in regard to the power of testamentary disposition, prevents). Under our Bevised Statutes (vol. 1, p. 722, art. 1, title 2, ch. 1) such other devisee takes under the will, not a mere possibility, but an expectant future estate, depending on the contingency of the death of the other without issue, intestate.
The term, “ without issue,” in the will, does not mean an indefinite failure of issue, but on well settled principles,' as well as by our statute, a failure of issue living at the death of the first taker. The event upon which the remainder would rest in possession is uncertain, it may never happen— but if it should happen at any moment, the other devisee would take eo msttjmM, and the remainder would vest in possession.
Such a remainder passes by her deed (1B. S. 725, § 35), and in this view, therefore, by uniting with the first taker in the deed tendered, she and her heirs are forever concluded.
4. "What is the effect of the power of testamentary disposi- • tion contained in the will 2 and does the conveyance by the deed tendered, prevent its exercise, or defeat any disposition made by the donee of the power 2
If the existence of the power operates by force of our statute "to make the estate of the devisee herself, a fee, as is argued, then, of course, her conveyance invests the grántee with a fee, and no subsequent act of the grantor can defeat it.
By section 84 of 1 Bevised Statutes, title, “ Of Powers ” (p. 733), where a general and beneficial power to devise the [35]*35inheritance shall be given to a tenant for life * * such tenant shall be deemed to possess an absolute power of disposition, within the meaning and subject to the provisions of the three last preceding sections.
This power is both general and beneficial.
It is, therefore, an absolute power of disposition within section 81, which says that where such power of disposition is given to the owner of a particular estate for life, or years, such estate shall be changed into a fee, absolute in respect to the rights of creditors and purchasers, but subject to any future estates limited thereon in case the power should not be executed, or the lands should not be sold for the satisfaction of debts.
Here the power is given to the owner of a particular estate-for life, and there was a remainder limited upon the estate-for life in a certain specified contingency. If no sale was-made, and either devisee died without issue, and without-executing the power, the remainder was-limited to the other..
What is the import of this last named section % Does itr mean to declare that in respect to creditors and purchasers-the estate shall be changed into an absolute fee, and therefore if levied on by creditors, or conveyed to any purchaser,, they shall take an absolute fee % or does it mean, that, though-deemed an absolute fee as to creditors and purchasers, it-shall nevertheless remain subject to be diverted' by the limitation over, in case the power to devise shall not be executed, or the land be not sold for debts ?
If. the former, then a conveyance extinguishes the power as respects the rights of a purchaser, and" destroys the limitation.
If the latter, it would operate simply and only as a conveyance of the life estate, because the estate- would still be subject to the execution of the power to devise, and the limitation, even in default thereof, would still take effect. This makes the statute work no change, except in case the property should be taken for debts.
It means, that, although the power is, by the will, a power to devise only, it shall be construed to be an absolute power [36]*36of disposition, and the estate shall he deemed an absolute fee as to purchasers and creditors, and. a purchaser will therefore take title.
But if the power (*". e., the absolute power of disposition), be not executed, and the land be not sold for the satisfaction of debts, it shall remain subject to the limitation over which may then take effect.
The two following sections are, I think, in harmony with this view. If I am correct in this, the defendant will obtain, by. the deed tendered, a safe and secure title.
The judgment should be affirmed.
Mason, J.
The rule in equity requires the vendor, when he seeks a specific performance against the purchaser, to be able to make a clear title, for courts of equity will not compel a purchaser to take a doubtful title.
If, therefore, the plaintiffs’ title, which they offered the defendant, -is doubtful, the -judgment of the Supreme Court ought not' to have compelled the defendant to take it, and the judgment must be reversed. This question of title depends upon the construction to be put upon this devise to the plaintiffs, in the will of James Cutwater, above stated. If this devise carries an absolute, unqualified fee to each of these plaintiffs, then there can be no question in regard to the title. I am inclined to think, although it is expressed with hesitancy, that such is the construction which the law requires us to put upon this will. The primary devise is to (each of these plaintiffs “ the equal one-half part of all the testator’s real estate, subject only to a limitation over to the survivor of them, of such part of the same property and estate as may remain at the death of the. devisee who shall first die, and even this remainder is not carried over to the survivor, if the first taker shall die leaving issue. The apparent intent of the testator was to give to each of these devisees an equal half of all his property real and personal, with the simple restriction imposed, that whatever shall remain in the hands of the devisee who shall first die without issue, shall go over to the survivor—that is, what should [37]*37remain of the same property at the death of the devisee first dying. The case of Helmer and Wife v. Shoemaker (22 Wend. 137) is scarcely distinguishable from the ease at bar, where the subsequent clause in the will giving a limitation over in favor of another, as to so much of the property given to the first devisee as may remain at the decease of the first taker, was inoperative to carry any thing over, and the first devisee took a fee simple absolute in the real estate. This construction is expressed with great doubt, and I need not regard it as very important whether this view be sustained or not, for, during the life-time of both these devisees, each of them holds the fee of one-half of this real estate, with the expectancy of a future estate in fee, in the other’s half. These limitations of the expectant estates being limited to the two devisees, and the survivorship necessarily giving to the one or other the whole, estate, and as expectant estates are transferable under our statutes the same as any other estate, it follows that the deed of the two devisees must convey all their right, title and interest, present and expectant; and consequently, a good title was offered to the defendant, in the full covenant deed of the plaintiffs. This must be so, if these devisees simply-took a life estate with a general and beneficial power to devise the inheritance; for in such a case the tenant for life possesses an absolute power of disposition under our statute. (1 R. S. 733, §§ 81, 82, 83, 84.) And, as regards a purchaser, his estate shall be deemed turned into a fee, and his conveyance, to pass a good title to the purchaser. (1 R. S. 725, § 35; 723, §§ 9, 10, 12; Nichol v. N. Y. & Erie R. R. Co., 2 Kern. 133; Lawrence v. Bayard, 7 Paige, 76 ; Leslie v. Marshall, 31 Barb. 564.)
The judgment must be affirmed.
The majority of the court expressed no opinion upon the first ground stated in this opinion, some expressing opinions against its accuracy.
Judgment affirmed.