BEAN, J.
This controversy arises out of the construction of paragraphs 7 and 12 of the will, and as to the estate or interest in the real property thereby devised to the plaintiff. It is the contention of the defendant that the provisions of the paragraphs of the will referred to vested in plaintiff only a life estate with the remainder over to his children or grandchildren living at the time of his death; and in case he died “without leaving lineal descendants, children or grandchildren, ’ ’ then in such case only does title to the property pass to the brothers and sisters.
1. It is a cardinal principle of law that in construing a will the intention of the testator is the guide. If such intention can reasonably be ascertained it controls the disposition of his property: Jasper v. Jasper, 17 Or. 590 (22 Pac. 152); Love v. Walker, 59 Or. [595]*59595, 107 (115 Pac. 296); Kaser v. Kaser, 68 Or. 157 (137 Pac. 187); Beakey v. Knutson, 90 Or. 574 (174 Pac. 1149, 177 Pac. 955).
2, 3. By paragraph 7 of the will, Robert Imbrie devised to his son, the plaintiff Ralph Imbrie, the land in question, subject to the restrictions that the real estate should not be sold or mortgaged until Ralph Imbrie was 40 years of age, nor be subject to his debts. If he had sold or mortgaged any part of it, all his interest in the land would have ceased and the land would have descended to his children, if he had any, and if not then to all his brothers then living. This paragraph of the will provided that this devise was to be accepted and received in full payment of the indebtedness of the testator to Ralph Imbrie, except $500. The encumbrance upon his land was to be paid out of the testator’s estate. Had it been the intention of the testator to devise a life estate to his son Ralph Imbrie, it would have been the most natural thing for whoever drafted the will to have used the words “during his natural life,” or words of like import. A devise of real property is deemed to be a gift of all of the testator’s estate in the premises devised “unless it clearly appears from the will that he intended to devise a less estate or interest”: Section 10121, Or. L. Section 10124, Or. L., provides that—
“All courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true interests (intent) and meaning of the testator in all matters brought before them.”
The provision of the will that Ralph Imbrie should not sell or mortgage the land until he became 40 years of age clearly indicates that after that time he could dispose of it at his pleasure. The provision [596]*596for the payment of the encumbrances on the land from the estate indicates that it was the intention of the testator to pass a clear title to his son. The specifications indicate that no other restrictions upon the title were intended by the testator. The language of the will in question is entirely different from that used in the will construed in Love v. Walker, 59 Or. 95, 107 (115 Pac. 296), and Love v. Linstead, 76 Or. 66 (147 Pac. 935, Ann. Cas. 1917A, 898), cited and relied on by defendant. In this state the term “heirs,” or other words of inheritance, are not necessary to create or convey an estate in fee simple: Section 9487, Or. L.
It is clear that by the seventh paragraph of the will Robert Imbrie devised the land to his son, Ralph Imbrie, in fee, subject to certain restrictions enumerated in that part of the will. Applying the maxim, ex-prés sio unius est exclusio alterius, it would not occur to one by the reading of the will, when taking it by its four corners, that it was the intention of the testator to include or apply other restrictions or limitations to take effect after his decease. Under any suggested construction of the will when taking into consideration paragraph 12, the estate devised to Ralph Imbrie may last forever, as he may not “die without leaving lineal descendants, children or grandchildren.” Therefore, it is safe to start with the premise that Ralph’s estate is a fee.
4. It is a well-established rule that where an estate in fee is given in one clause of a will in clear and explicit terms, the interest which the devisee thus obtains in the land cannot be taken away or diminished, by any subsequent vague or general expression of doubtful import, or by any inference deducible. therefrom, that may be repugnant to the estate given: [597]*597Irvine v. Irvine, 69 Or. 187, 190 (136 Pac. 18); Roberts v. Roberts, 140 Ill. 345 (29 N. E. 886); Meacham v. Graham, 98 Tenn. 190 (39 S. W. 12); 2 Underhill on Wills, § 689; 2 Alexander, Com. on Wills, § 931.
It is noticed that by the provisions of paragraph 7, the devise to Ralph was conditioned upon its being accepted and received by him in full of the testator’s indebtedness to him, with the exception of $500. While the amount of the indebtedness is not disclosed by the record, it would not seem that the father in the liberal disposition of his bounty to his son, as manifested by the will, would devise a title in fee .to land for a consideration in one part of the will and take it away or diminish the title, debase the fee as it is usually termed, in another part. It would be inequitable for him to attempt to do so, and a construction of the will which would effectuate such a result would be antagonistic to the intention of the testator, according to the language of his testament. As well said by Mr. Justice Burnett, in Bilyeu v. Crouch, 96 Or. 66 (189 Pac. 222), “No will has a twin brother.” It might be said that on this account, the precedents which we find for enlightenment, do not appear to belong to the same family. It is seldom that one undertakes to reconcile the divergent judicial -decisions. No such effort will here be made.
It is stated in 21 O. J., page 995, Section 149, as follows:
“The tendency of modern decisions on questions of contingent and vested remainders has been more and more to break away from the technical refinements of the old common-law learning, and to allow deeds and wills to be effective in line with the intent of their faces, as gathered from the everyday good sense of their language.”
We quote from 10 R. C. L., page 651, Section 7:
[598]*598“Since an estate in fee simple implies absolute sovereignty over tbe land, the power of alienation is necessarily and inseparably incidental thereto, and an unlimited condition in restraint of alienation attached to such an estate is void. The estate is subject to dower and curtesy; and it is descendible to the heirs general, whether male or female, lineal or collateral.”
Nevertheless the question is submitted as to whether or not the language of paragraph 12 of the will clearly shows an unmistakable intention on the part of the testator to diminish the estate of Ralph Imbrie, or debase the fee advised by the terms of paragraph 7. It is believed that the question should be answered in the negative.
5.
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BEAN, J.
This controversy arises out of the construction of paragraphs 7 and 12 of the will, and as to the estate or interest in the real property thereby devised to the plaintiff. It is the contention of the defendant that the provisions of the paragraphs of the will referred to vested in plaintiff only a life estate with the remainder over to his children or grandchildren living at the time of his death; and in case he died “without leaving lineal descendants, children or grandchildren, ’ ’ then in such case only does title to the property pass to the brothers and sisters.
1. It is a cardinal principle of law that in construing a will the intention of the testator is the guide. If such intention can reasonably be ascertained it controls the disposition of his property: Jasper v. Jasper, 17 Or. 590 (22 Pac. 152); Love v. Walker, 59 Or. [595]*59595, 107 (115 Pac. 296); Kaser v. Kaser, 68 Or. 157 (137 Pac. 187); Beakey v. Knutson, 90 Or. 574 (174 Pac. 1149, 177 Pac. 955).
2, 3. By paragraph 7 of the will, Robert Imbrie devised to his son, the plaintiff Ralph Imbrie, the land in question, subject to the restrictions that the real estate should not be sold or mortgaged until Ralph Imbrie was 40 years of age, nor be subject to his debts. If he had sold or mortgaged any part of it, all his interest in the land would have ceased and the land would have descended to his children, if he had any, and if not then to all his brothers then living. This paragraph of the will provided that this devise was to be accepted and received in full payment of the indebtedness of the testator to Ralph Imbrie, except $500. The encumbrance upon his land was to be paid out of the testator’s estate. Had it been the intention of the testator to devise a life estate to his son Ralph Imbrie, it would have been the most natural thing for whoever drafted the will to have used the words “during his natural life,” or words of like import. A devise of real property is deemed to be a gift of all of the testator’s estate in the premises devised “unless it clearly appears from the will that he intended to devise a less estate or interest”: Section 10121, Or. L. Section 10124, Or. L., provides that—
“All courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true interests (intent) and meaning of the testator in all matters brought before them.”
The provision of the will that Ralph Imbrie should not sell or mortgage the land until he became 40 years of age clearly indicates that after that time he could dispose of it at his pleasure. The provision [596]*596for the payment of the encumbrances on the land from the estate indicates that it was the intention of the testator to pass a clear title to his son. The specifications indicate that no other restrictions upon the title were intended by the testator. The language of the will in question is entirely different from that used in the will construed in Love v. Walker, 59 Or. 95, 107 (115 Pac. 296), and Love v. Linstead, 76 Or. 66 (147 Pac. 935, Ann. Cas. 1917A, 898), cited and relied on by defendant. In this state the term “heirs,” or other words of inheritance, are not necessary to create or convey an estate in fee simple: Section 9487, Or. L.
It is clear that by the seventh paragraph of the will Robert Imbrie devised the land to his son, Ralph Imbrie, in fee, subject to certain restrictions enumerated in that part of the will. Applying the maxim, ex-prés sio unius est exclusio alterius, it would not occur to one by the reading of the will, when taking it by its four corners, that it was the intention of the testator to include or apply other restrictions or limitations to take effect after his decease. Under any suggested construction of the will when taking into consideration paragraph 12, the estate devised to Ralph Imbrie may last forever, as he may not “die without leaving lineal descendants, children or grandchildren.” Therefore, it is safe to start with the premise that Ralph’s estate is a fee.
4. It is a well-established rule that where an estate in fee is given in one clause of a will in clear and explicit terms, the interest which the devisee thus obtains in the land cannot be taken away or diminished, by any subsequent vague or general expression of doubtful import, or by any inference deducible. therefrom, that may be repugnant to the estate given: [597]*597Irvine v. Irvine, 69 Or. 187, 190 (136 Pac. 18); Roberts v. Roberts, 140 Ill. 345 (29 N. E. 886); Meacham v. Graham, 98 Tenn. 190 (39 S. W. 12); 2 Underhill on Wills, § 689; 2 Alexander, Com. on Wills, § 931.
It is noticed that by the provisions of paragraph 7, the devise to Ralph was conditioned upon its being accepted and received by him in full of the testator’s indebtedness to him, with the exception of $500. While the amount of the indebtedness is not disclosed by the record, it would not seem that the father in the liberal disposition of his bounty to his son, as manifested by the will, would devise a title in fee .to land for a consideration in one part of the will and take it away or diminish the title, debase the fee as it is usually termed, in another part. It would be inequitable for him to attempt to do so, and a construction of the will which would effectuate such a result would be antagonistic to the intention of the testator, according to the language of his testament. As well said by Mr. Justice Burnett, in Bilyeu v. Crouch, 96 Or. 66 (189 Pac. 222), “No will has a twin brother.” It might be said that on this account, the precedents which we find for enlightenment, do not appear to belong to the same family. It is seldom that one undertakes to reconcile the divergent judicial -decisions. No such effort will here be made.
It is stated in 21 O. J., page 995, Section 149, as follows:
“The tendency of modern decisions on questions of contingent and vested remainders has been more and more to break away from the technical refinements of the old common-law learning, and to allow deeds and wills to be effective in line with the intent of their faces, as gathered from the everyday good sense of their language.”
We quote from 10 R. C. L., page 651, Section 7:
[598]*598“Since an estate in fee simple implies absolute sovereignty over tbe land, the power of alienation is necessarily and inseparably incidental thereto, and an unlimited condition in restraint of alienation attached to such an estate is void. The estate is subject to dower and curtesy; and it is descendible to the heirs general, whether male or female, lineal or collateral.”
Nevertheless the question is submitted as to whether or not the language of paragraph 12 of the will clearly shows an unmistakable intention on the part of the testator to diminish the estate of Ralph Imbrie, or debase the fee advised by the terms of paragraph 7. It is believed that the question should be answered in the negative.
5. It is suggested by the provisions of the twelfth paragraph of the will the estate of Ralph Imbrie may end if he should die without lineal descendants, children or grandchildren, and therefore it is a determinable or qualified fee, with a gift over in the nature of an executory devise in favor of his brothers and sisters and their children.
An executory devise is defined as a future estate or interest in lands created by will and limited so that it cannot take effect as a remainder or a future use. It does not vest at the death of the testator, but only on the happening of some future contingent event. It is such a limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules of limitations regarding conveyances at common law. It can be created without the intervention of a preceding estate, and it may be limited after a fee: 2 Alexander on Wills, § 1017. This kind of an estate or interest, it is declared, was instituted to support the will of the testator in cases where by the rules of law the devise of a future estate [599]*599could not operate as a remainder, as in case of a remainder after a fee which, although not good as a remainder, is valid as an executory devise: 4 Kent’s Com. *269.
6. An executory devise to take effect only upon an indefinite failure of issue is void under the rule as to perpetuities, for an executory interest, in order to be valid, must take effect within the life or lives of those in being, and within 21 years thereafter, with the usual period of gestation added.
7. There appears to be a distinction between a case where a life estate is devised with a remainder over in case the devisee die without issue, and where an estate is devised or conveyed in fee with a gift over upon the proviso that the grantee die without heirs. It is stated in Love v. Walker, 59 Or. 95, at page 107 (115 Pac. 296, at page 301):
“The rule of construction prevailing in most states of the Union is that a devise of a fee, coupled with a condition that if the devisee die without issue the estate is to go to others, means dying without issue in the lifetime of the testator, unless a different intention is manifest from the context of the will. ‘The presumption that the contingency of dying without issue,’ says the author of the exhaustive note to the case of Lumpkin v. Lumpkin, 25 L. R. A. (N. S.) 1063, 1064, ‘is to be restricted to testator’s lifetime being fundamentally limited to cases where an absolute gift is made to the first taker, in express terms or by implication, is not applicable where the gift is clearly of a less interest.’ ”
Turning to the foundation of that enunciation, 25 L. R. A. (N. S.) 1059 et seq., we find among numerous authorities cited in the notes the following on page 1060:
“It is well settled that where the terms of the will indicate an intention that the primary devisee shall [600]*600take tlie fee on the death of the testator, coupled with a devise over in case of his death without issue, the words refer to a death without issue during the life of the testator; and where the primary devisee, surviving the testator, takes an absolute estate in fee simple, this rule of construction is adopted in order to avoid repugnancy, and because the law favors the vesting of estates at the earliest possible moment, in the absence of a clear manifestation of the intention of the testator to the contrary: Tarvell v. Smith, 125 Iowa, 388 (101 N. W. 118).
“Where a bequest is direct and immediate, and nothing else appears to aid in the interpretation, the law inclines to construe ‘die without issue’ as meaning the death of the legatee without issue in the testator’s lifetime: Birney v. Richardson, 5 Dana (Ky.), 424. * *
“So, also, in Washbon v. Cope, 144 N. Y. 287 (39 N. E. 388), it is said that the rule is well settled that where a devise or bequest over to third persons is dependent upon death without issue or without children, the death referred to is death in the lifetime of the testator.”
8. The fact that our Code is closely related to those in the states of Iowa and New York lends weight to the opinions in those states. In the present case, instead of the language of the will, other than that in paragraph 12, manifesting an intention of the testator to devise an estate less than that of fee simple, the expression of the will of the devisor is to the contrary as we have noted.
We therefore conclude that the proviso that in the event Ralph Imbrie should “die without leaving lineal descendants, children or grandchildren,” etc., was not inserted in the memorandum of the testator with the intention of debasing the fee devised to Ralph Imbrie, or indicating that Robert Imbrie proposed to give to this son an estate less than an absolute fee [601]*601simple after lie attained the age of 40 years without violating any of the restrictions embodied in paragraph 7.
It is no doubt the rule that where an estate otherwise than an absolute estate in fee simple is devised in one portion of a will, in clear and decisive terms, and the subsequent provisions clearly show an unmistakable intention on the part of the testator to give an estate less than an indefeasible fee simple, such latter intention must control: 2 Alexander on Wills, p. 1363, § 933. In considering the will in question we do not find such unmistakable intention indicated on the part of the testator.
9. There can be no remainder upon an estate in fee simple for the reason that, by disposing of such an estate, one divests himself of all interest in the land and has no estate to transfer to another. For the same reason there can be no remainder upon a determinable fee: 1 Tiffany on Real Property, 481; 21 C. J., p. 1024, §§ 205 and 206.
10. The very reason of the institution of an ex-ecutory devise being for the purpose of carrying out the wish of a testator, it should not be transformed into an instrument serving the purpose to defeat such will. No technical, indefinite or uncertain clause in paragraph 12 of the will should be construed to defeat or lessen the plain devise made by the testator in the seventh clause of the will. Plaintiff Ralph Imbrie, by virtue of his father’s will, took an absolute title in fee simple to the real estate described: Love v. Walker, 59 Or. 95 (115 Pac. 296); Rowland v. Warren, 10 Or. 29; Bilyeu v. Crouch, 96 Or. 66 (189 Pac. 222); Love v. Lindstedt, 76 Or. 66 (147 Pac. 935, Ann. Cas. 1917A, 898).
[602]*60211. In Britton v. Thornton, 112 U. S. 526, 532 (28 L. Ed. 816, 5 Sup. Ct. Rep. 291, 294, see, also, Rose’s IT. S. Notes), quoted from with approval in Bilyeu v. Crouch, supra, we find this statement of the law:
“"When indeed a devise is made to one person in fee, and ‘in case of his death’ to another in fee, the absurdity of speaking of the one event which is sure to occur to all living as uncertain and contingent has led the courts to interpret the devise over a referring only to death in the testator’s lifetime. * # But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated at any time, whether before or after the death of the testator.”
Applying this excerpt to the present case, upon an analysis of the entire will, we think that the provisions of the will, other than those embraced in paragraph 12, control and clearly express the desire of the testator in bestowing his bounty. Whatever road we travel, and view as many precedents as we may, we necessarily come back to the language found in the testamentary instrument.
The minor child of plaintiff has no interest in the real property in question. The time is past for the happening of the event detailed in the seventh' paragraph of the will. Ralph Imbrie did not sell or encumber the land prior to his arriving at the age of 40 years, so that his interest in the real property would cease and the land go to his children by virtue of the will.
12. Erom the averments of the complaint, which :must he taken as true when considered upon demur[603]*603rer, plaintiff has a marketable title to the land in question.
The decree of the lower court is therefore affirmed.
[^firmed.
Johns, J., concurs.
Brown, J., concurs in result.