Van Horne v. . Campbell

3 N.E. 316, 100 N.Y. 287, 55 Sickels 287, 1885 N.Y. LEXIS 982

• Court: New York Court of Appeals
• Decided: November 24, 1885
• Status: Published

Opinions

Andrews, J.

The original plaintiff, Jane Van Horne,

claimed title to the premises in controversy, under Henry V. Fonda, one of the sons of Jellis Fonda, who died seized of the premises in 1791, leaving a widow and two sons and three daughters surviving him. The title of Henry V. Fonda depended upon the validity of a devise over in the will of Jellis Fonda. Jellis Fonda, in his will, devised a parcel of land containing about fourteen acres, including the lot in question, to his wife, Jannettie, for life, remainder to his son Douw, his heirs and assigns, forever. He devised another parcel, under a similar limitation, to his son Henry V. In a subsequent clause of the will it was provided that, “ if either of my two sons shall di & seized of the estate herevribefore bequeathed, or any part thereof, without lawful issue, that then the estate of him so dying seized, hereby bequeathed, shall descend to the other of my sons, in which case the survivor shall pay to my said three daughters, each, the sum of one hundred dollars.” Jannettie, the widow of the testator, died soon after her husband and prior to the year 1800. Douw Fonda, after the death of the testator, entered into possession of the fourteen acres devised to him, and died intestate in 1837, without issue, and without having conveyed or otherwise disposed of the land. The contingencies thereby happened upon which, by the terms of the will, the limitation over to his brother Henry V. was to take effect. The question is, whether this ulterior limitation was valid and vested the fee of the fourteen acres devised in the first instance to Douw Fonda, in his brother Henry, upon the happening of the contingencies specified. If the limitation was valid, the plaintiff is entitled to recover; if invalid, he has no title, and cannot maintain the action.

Before proceeding to examine the authorities bearing upon the question, it is important to observe the terms of the devise, and the character of the contingencies upon which the limita-' tian over is made to depend. The devise to the testator’s son Douw in the first instance was of a remainder in fee, dependent upon the life estate of the mother. The devise was to him and his heirs and assigns forever, —words apt and sufficient to carry an absolute fee. The devise over was upon a double contingency: the death of Douw without issue and without having disposed of the property in his life-time. The latter contingency is not stated in express words. But the power of the primary devisee to dispose of the land by a conveyance taking effect in his life-time, and thereby defeat the ulterior limitation, is implied from the words limiting the gift over to the land or such part thereof as the primary devisee “ shall die seized of.” That these and similar words import an absolute- power of disposition in the first-taker has been frequently adjudged, and some of the cases on this point will hereafter be referred to. The devise may therefore be described in general terms as a devise to the testator’s son Douw in words importing an absolute fee, with superadded words conferring an absolute beneficial power of disposition of the whole subject of the devise by conveyance executed in his lifetime, and a limitation over in the event of his dying without issue and without having exercised the power of alienation. If the devise in question was a simple devise to the testator’s son Douw, in words importing a fee, and a devise over to his brother Henry in the event of the death of Douw without issue at his death, it would have constituted a valid executory devise, according to the doctrine finally settled by the Court of King’s Bench in Pells v. Brown, (Cro. Jac. 590), decided in 1619, and which has been uniformly followed in subsequent cases. In that case, as the will was construed, lands were devised to A. and his heirs, and if he died without issue living at his death, then to B. The devise to A. was in words importing a fee-simple, and according to the rule of the common law prevailing in respect to conveyances inter vivas, no further limitation was permitted. The common law did not allow a remainder or other legal estate to be limited after a fee. The rule was founded upon the postulate that a conveyance of a fee was a conveyance of the whole estate, and that nothing was left upon which the limitation over could operate. Upon the assumption that a fee given in the first instance carried the entire and absolute interest in the land to the grantee, the common-law rule that there could be no further limitation was logical and consistent, because where the whole is given there can be nothing beyond that left to give. But under the statute of uses, and indeed before they were legalized by that statute, a species of limitations known as shifting or springing uses had been recognized, which permitted ulterior estates to be created, to arise upon the defeasance of prior estates in the same property, contrary to the strict rules of the common law. The courts, after the passage of the statute of wills (32 Hen. VIII), following the analogies furnished in conveyances to uses, and in support of the intention of the testator, gradually came to recognize the validity of limitations not permitted in conveyances at common law. In this desire to sustain the intention of a testator originated the species of property limitations known as executory devises. There are traces of the doctrine that a fee limited after a fee may be good by way of executory devise, prior to the case of Pells v. Brown. But that case completely established the validity and indestructibility of that species of limitations, and it has ever since, as stated by Lord Kenyon in Porter v. Bradley (3 Term Rep. 145), been regarded as the “ foundation and, as it were, magna oha/rta of this branch of the law.” Since that time, executory devises limiting a fee after a fee, upon some contingency operating to defeat the estate of the first taker, as upon his death without issue or other specified event, have become common forms of assurance. The common-law doctrine of repugnancy between the two estates, which, as has been said, was perfectly rational upon the assumption upon which it proceeded, has given way to the more just and reasonable view, which regards the prior gift, although made in words which, standing alone; import an absolute estate, as restrained by the subsequent limitation, and as conferring only a qualified estate. This prior estate, although properly denominated a fee, because it may last forever, is nevertheless a base or determinable fee, because it is liable to be defeated by the happening of the contingency upon which it is limited. In other words, in such a case, as the limitation is construed, an absolute fee is not given to the first taker, but only a qualified and determinable one. But a reference to the devise contained in the will of Jellis Fonda discloses an element not contained in the will under consideration in Pells v. Brown. It is not a simple devise as in that case, to A. and his heirs, with a devise over on the death of A. without issue, but there is interposed between the primary and secondary limitation a disposing power whereby the first taker was entitled to dispose of the whole fee for his own benefit, and thereby cut off and defeat the ulterior limitation ; because it is evident that the testator, in conferring this power oh his son Douw, was not providing for a disposition by him, subject to the limitation over to Henry, but for a disposition which would defeat and destroy it.' It is hardly necessary to call attention to the radical difference in the situation of the ulterior devisee, effected by this power of disposition in the first taker, from the situation of the executory devisee in Pells v. Brown and similar cases. In cases of the latter class the right of the ulterior devisee cannot be cut off or divested by any act of the primary devisee. It is true that the secondary limitation depends upon a contingency which may never happen, and so no estate may ever vest thereunder; but whether it shall, or shall not, is not subject to the will of the first taker, but depends upon the event of life, or death, or other contingency, not within his volition or control. On the other hand, where, as in the will in question, in addition to words importing an absolute fee, in the first taker, there is superadded a beneficial disposing power, authorizing him to convey an absolute fee, and thereby divest all- rights in the secondary devisee and cut off the limitation over, the interest of the ulterior devisee, assuming that the limitation is valid, is reduced to scarcely more than a mere possibility. The power given to the first, taker is conjoined with an interest in him to exercise the power and thereby defeat the subsequent estate. In any view the estate of the first taker is scarcely less than complete ownership, and the right of the ulterior devisee is, as has' been said, scarcely more than a very remote possibility.

The precise question presented, therefore, for our determination is, whether an executory devise can be made to depend on the non-execution by the first taker of an absolute beneficial disposing power, vested in him by the will creating the limitation, or, in other words, whether there can be a valid executory devise where the executory limitation is conjoined with an absolute power in the primary devisee to defeat and cut off the future estate or interest by alienation of the entire fee in his life-time, and whether it makes any difference as to the rights of the ulterior devisee, whether the power has or has not been exercised. This question we may reasonably expect to find answered by the authorities, and, as we understand them, it is answered by an unbroken line of authorities in this State, and the almost uniform course of decision elsewhere, against the validity of such a limitation. If the limitation over was void, the absolute fee to the fourteen acres vested, on the death of the testator, in his son Douw. Where a limitation over after a devise of a fee-simple is void for remoteness or other reason, the fee-simple stands as an absolute fee, as though no limitation over had been attempted. (Lewis on Perp. 657; 2 Washb. on Real Prop. 360, and cases cited.) Another remark may properly be made before proceeding to examine the authorities. Executory devises are what the courts have made them, and whether in a given case there is or is not a good executory devise depends upon whether the devise conforms to the rules which the courts have adopted regulating that species of limitation. This is very clearly brought out in a striking passage from Hr. Hargrave (Harg. Lurid., Arg. 31): “ Executory devises,” says that eminent authority, “ appear to be not a genuine branch of our law, but an indulged superinduction to it; not a regular production of our general system, but an excrescence ; not a strictly regular species of entail, but a permitted regular mode of settlement; not a legitimate offspring of our common law, but a privilege gradually insinuated into our jurisprudence.” The general rule sustains a limitation over after the devise of a fee, on a contingency defeating the prior estate ; but if it shall be found that the law of executory devises, as established by the courts, does not permit such a limitation over on a particular contingency, as, for example, where an absolute power of dispositon is vested in the first taker, then the limitation over in that case is not a good executory devise, because it does not come within the rules regulating that species of limitation. The limitation over in the case supposed would be repugnant to the prior fee and the superadded power, not because there could not in the nature of things be a complete and perfect execution of the intention of the testator, for manifestly there is no necessary repugnancy, in fact, between a gift to A. with power of disposition, and a gift over to B. in case the power is not exercised. But such a gift over, upon the assumption made, is repugnant in law to the prior estate and power, because the law has declared that a valid limitation over cannot be made to depend upon such a contingency. The law in the case supposed defeats the intention of the testator. But this occurs in all cases where a testator undertakes to do what the law does not permit. The rule of perpetuities and our statute of uses and trusts furnish familiar examples. Lord Langdale, referring to this principle in Byng v. Lord Strafford (5 Bea. 558), said: “ The words are not rejected against the rule that every word in a will shall, if possible, have a meaning, but because the testator has attempted to do what the law will not permit, or has made dispositions of property which are inconsistent with each other.”

The earliest case in the courts of this State, involving the question now presented, is Jackson v. Bull (10 Johns. 19), decided in 1813. The action was ejectment. The plaintiff claimed title under the will of one Bull, whereby the testator devised the demanded premises to his son 'Moses, his heirs and assigns forever, and another parcel, by a similar devise, to his son Young, aiid then declared as follows: “ In case my son Moses should die without lawful issue, the said property he died possessed of I will to my son Young,” etc. After the death of the testator, Moses, the son, entered into possession of the property devised to him, and died in possession without issue, and by his last will devised the property to his wife, sister and half-brother, under whom the plaintiff claimed title. The question was, whether the testator’s son Moses took under the devise an absolute fee, thereby rendering the limitation over void. The cause was tried before Kent, Chief Justice, and a verdict was taken subject to the opinion of the court. The court in banc, in a per curiam opinion in which all the judges concurred, held that the limitation over was void as being repugnant to the absolute ownership and power of disposition given to Moses by the will, and it was declared to be a settled principle that a “ valid executory devise of real or personal property cannot be defeated at the will and pleasure of the first takerand also that the question did not turn upon the fact whether the devisee had exercised the power of alienation. The power of disposition in the testator’s son Moses was implied from the words “ died possessed of.” The fact that Moses had himself devised the property was not referred to by the court, and was clearly immaterial. The language from which the power of disposition was implied manifestly confined the disposition to a conveyance by Moses operating in his life-time. He would die possessed of the land in absence of such a conveyance, notwithstanding he had devised it, and if the limitation over was valid, it would not be defeated by a testamentary disposition, because such a disposition was not within the power. The very close correspondence between the circumstances of that case and the one now before us cannot fail to attract attention. In both the primary devise was in words appropriate to carry a fee; the limitation over in both cases was on a double contingency of precisely the same character, that is, on the contingency of death without issue and without having disposed of the property, and in neither had the power of disposition been exercised. The case of Jackson v. Bull is a direct and explicit authority against the validity of the limitation over in the case before us. The next case involving the question arose upon the will of William Alexander, known as Lord Sterling, who died in 1783. By his will, dated in 1771, he devised, in words sufficient to carry the absolute property, all his estate, real and personal, to his wife Sarah; but in ease of her death without disposing of such estate by will or otherwise, then all such estate, or all parts thereof as should remain unsold or undevised at her death, he devised to his daughter, Catherine Duer. This, it will be observed, was a perfectly valid executory devise to Catherine unless the limitation over was void by reason of the disposing power vested in the mother. Several cases are reported in Johnson, arising under this will. But the case of Jackson v. Robins (15 Johns. 169; S. C., 16 id. 537) is the only one to which reference need be made. That was ejectment brought to recover lands in Ulster county, the plaintiff claiming title under the limitation over to Catherine, the daughter of Lord Sterling. The defendant relied upon two principal grounds of defense: first, that the limitation over in the will of Lord Sterling was void, by reason of the power of disposition given to the mother; and second, a title by adverse possession. The case came before the Supreme Court on special verdict, and judgment was rendered for the defendant. It was carried to the Court of Errors, and was there argued by some of the most eminent counsel in the State. The opinion was delivered by Chancellor Kent, adversely to the plaintiff, sustaining the defense on both grounds. The counsel for the plaintiff, at great length and with great ability, assailed the correctness of the decision in Jackson v. Bull. The chancellor in his opinion re-examined the principles of that decision, and after an elaborate discussion and examination of the authorities, re-affirmed the doctrine of that case, and declared that “ there is not a case to be found in which a valid executory devise was held to subsist under an absolute power of alienation in the first taker.” The court concurred unanimously in the opinion of the chancellor, and the judgment was affirmed. Passing by the case of Patterson v. Ellis (11 Wend. 260) as not material to the discussion, except that Chief Justice Savage in his opinion cites and expressly approves the doctrine of Jackson v. Bull, we come next in order to the case of Helmer v. Shoemaker (22 Wend. 137). The plaintiff claimed certain land under an executory devise, the defendant under a deed from the first taker. By the will the land was devised to the testator’s wife, without words of limitation, and it was then declared that “ all the avails of the property that might remain ” at her decease should go over. It was held, Cowen, J., writing the opinion, that the widow took an absolute fee by reason of the power of disposition. The title of the defendant might, perhaps, have been sustained on the deed from the widow, as an execution of the power, but no reference was made to this point, and the court disposed of the case on the doctrine of Jackson v. Bull. In McDonald v. Walgrove (1 Sandf. Ch. 274), a testator devised all his real estate to his wife, to be at her entire disposal; but if any pa/rt remained unsold at her death, he devised the same to his children and grandchildren. The will took effect before the Revised Statutes, and the widow died without having sold the property. It was held by the vice-chancellor that the wife took an absolute fee and that the subsequent limitation was repugnant and void. The learned judge touches very nearly the marrow of the question when he° says: “ Here the whole estate was made defeasible by the disposition of the property of the testator, and by consequence it ccurmot be deemed cm executory devise. " Norris v. Beyea (13 N. Y. 273) was a case involving the construction of a will of personal estate, taking effect after the Revised Statutes. The testator, after bequeathing a personal fund in language denoting an absolute gift, provided that it should go over in the event of the first legatee dying under age and without issue. It was held in accordance with the settled law that the gift over was a valid executory bequest. Judge Dekio, delivering the opinion of the court, distinguished the case from those in which the limitation over was preceded by an absolute power of disposition in the first taker, and said: “ In such cases a further limitation was clearly hostile to the nature and intention of the gift.” No reference was made by the learned judge to the provisions of the Revised Statutes, but the case was decided on common-law principles. The case of Trustees, etc., v. Kellogg (16 N. Y. 83) involved the validity of a legacy under a will which took effect in 1824. The testator devised his real and personal estate to his daughter Chloe, her heirs and assigns, forever, and in the event of her dying without issue, he gave to the plaintiff a legacy of $10,000. The testator by his will appointed a guardian for the daughter during her minority, and directed him to apply such part of the estate as he should deem necessary for her maintenance, education and support. It was claimed on behalf of the executors that the legacy was void for repugnancy to the prior gift to the daughter. The objection was overruled on the ground that the power of disposition was limited to a special purpose, and during a limited period, viz., for the maintenance, education and support of the daughter during her minority, and also, that from the amount of the estate, the provision for the support of the daughter could not have been intended to interfere wdth the legacy, to the plaintiff. Judge Denio in his opinion recognizes the rule that an absolute power of disposition would have rendered the legacy void. He says: “ If it appeared that the testator intended to confer upon the first devisee an absolute power of disposition, and in his will he afterward inade a gift over, the two dispositions cannot stand together. The absolute power of disposition shows that he intended to give an unqualified title to the first devisee, and it is in the nature of such a title that the property, if not alienated by the owner, shall descend to the heirs if it be real estate, or go to the next of kin if it be personal. The gift over is repugnant to this quality of absolute ownership, and it is consequently, void.” It will be noticed that Judge Denio regarded the rule stated as alike applicable to devises of real and personal property. Tyson v. Blake (22 N. Y. 563) was the case of an executory bequest, with a limitation over on the death of the primary legatee without issue, and is only important in the discussion, as containing an express recognition of the doctrine of the prior cases, that a limitation over is incompatible with an absolute disposing power in the first taker. Terry v. Wiggins (47 N. Y. 512) was an action of ejectment, the title depending upon a devise in a will which took effect in 1862, of certain land to the testator’s wife, for “ her own personal and independent use and maintenance, ” with power to sell the same, and a devise over after her death, of any residue, etc. The court construed the will as giving the wife a life estate only, with a limited power of disposition, and sustained the devise over on this ground. Allen, J., said: “ The power of disposition is not absolute, so as to bring it within the rule making all devises with absolute power of disposition in the devisee, gifts in fee; ” and he further said that if the devise to the wife had been a fee, the claim that the devise over was repugnant and void would have been well founded. The learned judge also referred to certain provisions of the Revised Statutes, and remarked that it was not material to decide whether the limitation over was a good executory devise at common law. Smith v. Van Ostrand (64 N. Y. 278) involved the construction .of a will which, as construed, gave to the testator’s widow a sum of money during life or widowhood, with power to use so much of the principal as might be necessary for her support, with remainder to her children. The court sustained the validity of the gift in remainder, on the ground' that the power of disposition was not absolute, but limited and conditional. Judge Rapallo said: “ The cases sustain the proposition that where an absolute power of disposal is given to the first legatee, a remainder over is void for repugnancy,” and adds: “ But they also recognize the principle that if the jus disponendi is conditional, the remainder is not repugnant. The' power of disposition in the present case is only for a special purpose —the support of the widow.” Campbell v. Beaumont (91 N. Y. 464) was an action for the construction of a will of real and personal estate, which took effect in 1876. The principal question was, whether there was a valid limitation over of the real and personal estate, which in the first instance was given to the wife of the testator. The alleged limitation over was of the property, or such " portion “ as may remain,” etc., after the decease of the wife. The court held that upon the construction of the whole will, the fee in the real estate and the absolute interest in the personal property was given to the wife, and further, that if the intention of the testator was to limit the estate over, the limitation was void, as repugnant to the power of disposition. Daneobth, J., said:

“ The gift appears absolute and entire in its terms; no child of the testator was to be provided for, and it better accords with decisions in this State to hold that if a limitation over was attempted, it is repugnant and void,” citing Jackson v. Bull (supra).

We have referred to all the cases which we have found in this State having a direct bearing upon the point under discussion. They unite, in declaring as an undoubted principle of the common law that a valid executory devise cannot ' co-exist with a devise of a primary fee, accompanied with an absolute disposing power in the first taker, and that an executory limitation by will, either of real or personal property, after a gift of an absolute estate, is void. An abso-' lute power of disposition annexed to a primary devise in fee is deemed conclusive of the existence in the primary devisee of an absolute estate. Such of the cases as sustain a limitation over after a life estate, accompanied with a limited power of disposition in the life tenant, proceed upon a distinction perfectly well settled, and fall within that common form of * limitation, viz., a limitation for life, with power of appointment in the life tenant, and remainder over on default of its exercise. The estate created by the exercise of the power does not take effect out of the interest of the life tenant, but out of the estate of the grantor of „the power not embraced in the life interest. (See Bradly v. Westcott, 13 Ves. 445.)

The decisions in other States upon this question are equally uniform. Ide v. Ide (5 Mass. 500), decided in 1809 by Chief Justice Parsons, is perhaps the earliest case in the country upon the subject. The action was ejectment. In that case the testator devised real estate to his son P., his heirs and assigns, forever, and also bequeathed to him personal estate in words denoting an absolute interest, and in a subsequent clause declared, “ and further, it is my will, that if my son P. shall die and leave no lawful issue, what estate he shall leave, to be divided between my son J. and my grandson N.,” etc. P. conveyed the land in his life-time and died leaving no issue. The court held that the limitation over was void for repugnancy to the disposing power, and on that ground decided the case for the plaintiff, making no reference to the fact that P. had exercised the power by a conveyance. The power of disposition was held to be implied from the words, “ what estate he shall leave.” Melson v. Doe (4 Leigh, 408), decided by the Supreme Court of Virginia in 1833, was a case where a testator devised land to his son W. and his heirs, and if he should die without a son, and not sell the land, then to the testator’s son G. It was held, as stated in the head-note, that the devise gave W. absolute power to sell a fee-simple, and therefore, whether he sold or not, he took a fee-simple and the devise over was void. The same principle was declared in a prior case in the same State (Riddick v. Cohoon, 4 Hand. 547), where the power of disposition was held to be implied from the words, “ so much of the estate as may remain undisposed of.” Cook v. Walker (15 Ga. 459) involved the construction of a marriage settlement of real and personal property which provided for the devolution of the property if the wife “ should die intestate, without making any disposition,” etc. Lumpkin, J., in delivering the opinion of the court, said: “We hold it to be an incontrovertible rule that whenever an estate is given in Georgia, either by deed or will, to a person generally or indefinitely, with an unlimited„power of disposition annexed, it invariably vests an absolute fee in the first taker, and that neither a" remainder nor an executory devise can be limited on such an estate.” The cases of Flinn v. Damis (18 Ala. 132) and McRea's Administrators v. Means (24 id. 350) declare the same rule. In Pickering v. Langdon (22 Me. 413) it was held that a gift over of real and personal estate, of “ what remains ” on the death of the first taker, was void ; and in Ramsdell v. Ramsdell (21 Me. 288) it was declared that the doctrine of Jackson v. Bull (supra) was the settled law. The doctrine that an absolute power of disposition m the first taker was fatal to a limitation over was also declared by the court of North Carolina (1 Jones, 463), and also by the courts of Tennessee in two cases ( Williams v. Jones, 2 Swan, 620; and Davis v. Richardson, 10 Yerg. 290). After a somewhat diligent examination I have been unable to find any decision in any court'in this country, adverse to the doctrine declared in Jackson v. Bull (supra), and I think it may safely be affirmed that the doctrine of that case is the settled law of the American courts. I cannot better conclude this review of the American cases than by quoting the words of Chancellor Kent in his Commentaries, written long after the decisions in Johnson (supra), and after the close of his judicial life. Speaking of executory devises (4 Kent’s Com. 270), after stating that a valid executory devise must be indestructible by the first devisee or taker, he adds: “ If, therefore, there be an absolute power of disposition. given by the will to the first taker, as if an estate be devised to A. in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over of the property which he, dying without heirs, should leave, or without selling or devising the same; in all such cases the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate or power of disposition expressly given or necessarily implied by the will.” (See, also, to the same effect, 2 Wash. Real Prop. 669.)

The doctrine of Jackson v. Bull is assailed as contrary to the settled rule of the English courts, and as based upon a misconception of the case " of Attorney-General v. Hall (Fitzg. 314), cited as authority for the decision, and upon a mistake of the court in applying to executory devises a rule applicable only to limitations of personal property. If the claim made was well founded, it would furnish no reason for departing from a rule of property settled by repeated decisions m our courts, and which has become the foundation of legal titles. Many of the established rules of property limitation are technical, and in many instances were founded upon mistaken analogies or upon reasons which no longer have any significance. But to depart from them in cases where rights have become vested and titles have been taken in reliance upon them, would produce great inconvenience, and in many cases work gross injustice. But after an examination of the English cases, I have reached the conclusion that the doctrine of Jdekson v. Bull accords with the great weight of authority in England, and that the alleged distinction between executory testamentary limitations of real and personal estate has no foundation in English law,, or at least that such a distinction has not been recognized from a time anterior to the case in Fitzgibbon which was decided in 1731. In that case a testator owning real and personal estate gave it by will to his son F. II., and to the heirs of his body, and if he should die leaving no heirs, then he gave so much of the real and personal estate as the "son should he possessed of at his death, to charitable purposes. The question was, whether the limitation over of the personal property was good. The court, as the case states, “ unanimously held that the absolute ownership had been given to F. H., for it is to him and the heirs of his body, and the company are to have no more than he shall have left unspent, and therefore he had power to dispose of the whole,” and the limitation over was held to-be void. The case was referred to and approved by Lord Hardwick in Flanders v. Clark (1 Ves. Sr. 9), who said : “ It was insisted in Attorney-General v. Hall (Fitzg.) that he, F. H., had only a usufructuary interest, and so to go over, but it was determined by Lord King- that he had the absolute property, and therefore the devise was void; for he had the power to spend the whole, which was an absolute gift.” It will be noticed that Lord Hardwick understood the case as holding that the gift was absolute, because of the power of disposition. It accords with logic as well as law, that where a gift of real or personal property is in law absolute, there can be no valid ulterior limitation engrafted upon it. Executory devises of a fee, limited after- a fee, were sustained, as I have said, upon the ground that, construing the whole limitation together, the first fee was a qualified and not an absolute interest. In the early period of the law, as is well known, future estates in 'personal property were not permitted. It was originally held that a gift of personalty for life was an absolute gift, so as to invalidate any further limitations (7 roll. Abr. 610); then a distinction was raised between the gift of the thing itself, and a bequest for the use only for life (Plowd. 521; Cro. Jac. 346), but this distinction was finally laid in Hyde v. Parrot (1 P. Wms. 2), and for more than a century and a half," executory bequests of personal property have been permitted by the law of England, under the same rules of limitation as apply'to executory devises of land. It will avoid confusion to refer to one distinction between limitations of real and personal property, founded upon a peculiar reason, and which is an exception to the general rule of uniformity of construction. It was settled at a very early period in the law that words of limitation that give an estate tail in laud give an absolute interest in personal property. This distinction was indulged in order to prevent the creation of perpetuities in limitations of personal property. The statute de donis, which was the foundation of estates tail, applied only to land. In their origin these estates were perpetuities, because they could not be alienated out of line of the entail. The courts, to defeat the design of the great lords in enacting the statute, invented the processes of fines and common recoveries as a means of unfettering these entails. But limitations of personal property in the nature of estates tail in land could not be barred by fine or common recovery, and unless cut off and held to be invalid, would lead to perpetuities in that species of property. And to prevent this, the limitation to issue was held to be void, and the first taker was held to take an absolute interest, free from the limitation over. (Bradhurst v. Bradhurst, 1 Paige, 331-345 ; Roper on Leg., p. 1522.) Executory devises were also exempt from the operation of fines and common-recoveries, because the fiction of compensation to the- issue in -tail, upon which those proceedings were founded, was inapplicable to that -species of limitation ; but they were prevented .from becoming perpetuities by the rule established by the courts that, in order to bo valid, they must be limited on a contingency which must happen within the period prescribed for the vesting of future estates. The doctrine of executory devises in its origin had reference to real property; but from a very early period in the law, and prior to the case in Fitzgibbon (supra), executory bequests of a future interest in personal property, to take effect on a contingency defeating a prior bequest, made in words denoting a gift of an absolute estate in the first taker, were recognized as valid, and I am unable to find any trace in recent times of any distinction between the two species of limitation, or any case which holds that a limitation bad as to one species of property is good as to the other, or conversely. .The very early case reported in 2 Freeman’s Ch. 137, decided in 1672, expressly affirmed the validity of an executory bequest of personal property after words of absolute gift, to take effect on a contingency defeating the prior estate. The case was a bequest of £500 to the testator’s daughter, and if she died under thirty years of age, unmarried, then over. She received the money and died before the time; it was held that her executors were chargeable as .possessed in trust for the legatees over. This indeed, says Fearne (p. 404), was not the case of a devise to one for life or a particular period, and afterward to another, but a conditional new disposition of the property upon a particular contingency. There are many other English cases sustaining an executory bequest of the same character. (Atkinson v. Hutchinson, 3 P. Wms. 258; Wilkinson v. South, 7 T. R. 555; Stone v. Maule, 2 Sim. 490.) The doctrine that personalty may be bequeathed under the same limitations as realty, and that the validity of executory bequests depends upon the same rules as govern executory devises, is affirmed by the text-writers, and, so far as I know, without dissent. (Lewis on Perp. 99; Smith on Exec. Int. 312; Roper on Leg. 1546; Fearne on Rem., Mr. Butler’s note E, p. 401.) Upon the authorities the claim that the case in Fitzgibbon proceeded upon any distinction known to the law between an absolute bequest of personal property with a super-added power of disposition in the first taker, and an executory devise of the same character, cannot be supported. The rule that a gift over of personal property by will, after a prior general gift accompanied with an absolute disposing power in the first taker,'is void for repugnancy, was held in Bull v. Kingston (1 Mer. 314) and in Ross v. Ross (1 Jac. & W. 154). They go upon the general principle and not upon any distinction between real and personal property. The case last cited was of a legacy to A., to be paid at twenty-five, with a limitation over if A. should not receive or dispose of it by will in his lifetime, and the limitation over was held to be void for repugnancy. Sir Thomas Plumer, M. R, said : “Idonot recollect any instance of a will where an absolute property is first given, with a condition that if a party does not make use of it, it goes over,” and referring to the case before him, he said: “ It is quite a novel attempt' to separate tile devolution of property from the property itself.”

There is a single case in England which sustains the contention of the plaintiff. In Doe v. Glover (1 M., G. & S. 448), decided in 1845, a testator devised lands to his son, his heirs and assigns, forever, but in case his son “ should depart this life without leaving any issue of his body then living,” and shall not have “ disposed of or parted with his interest in said lands,” then over. The son died without issue and without having disposed of the land in his life-time, but left a will devising the property. The question considered in the opinion was, whether the will was a good disposition of the disposing power. The court decided that it was not, and having reached this conclusion, held that the limitation over took effect, without adverting to the question whether there was any repugnancy between the limitation over and the disposing power. In Beachcroft v. Broome (4 T. Rep. 441) is a dictum by Lord Kenton, also supporting the plaintiff’s pósition. The case of Doe v. Glover is the only case in England which we have been able to find involving the question, which sustains a limitation over after a devise in fee accompanied with an absolute power of disposition in the primary devisee. But as early as 1746, in the case of Gulliver v. Vaux, a report of which was found among Sergeant Hill’s manuscripts, and which is printed in an appendix to the case of Holmes v. Godson (8 De G., Mac. & G. 152), it was held that a limitation over of real estate after a fee, on the contingency of the death of the first taker without issue and “ without appointing the disposition of the estate,” was not a good executory devise by reason of its repugnancy to the disposing power. The case was decided by Willis, Oh. J., and his associates, and is declared by Lord Justice Turnee, in Holmes v. Godson, to be of the highest authority. The case of Holm.es v. Godson, which was decided on appeal in chancery in 1856, is a precise authority in support of the doctrine of Jackson v. Bull (supra). That was the case of a devise of real and personal estate in trust for the. testator’s son, with a proviso that if he should die under twenty-one, or without having made a will, then over. The plaintiffs claimed under a conveyance of the real estate from the son, and the defendants under the limitation over, the son having died after he had attained the age of twenty-one without making a will. The court held that the limitation over was void for repugnancy, Lord Justice Turner saying: “ This is in terms a disposition of real estate in favor of other devisees, in the event of the primary devisee dying intestate, and I think such a disposition is repugnant and void.” After referring to decisions relating to personal property, he said: “ It was objected to these cases that they all referred to personal estate. But upon this question I confess myself unable to see the distinction between cases relating to personal property and cases relating to real estate,” and then, after referring to Gulliver v. Vaux and other cases, he continued: “All these are cases of real estate, and they seem clearly to prove that upon this point there is no distinction between the cases relating to real and personal estate. In truth, the decisions in both cases turn, as I apprehended, on this : The law has said that if a man dies intestate, the real estate shall go to the heir, and the personal estate to the next of kin, and any disposition which tends to contravene that disposition which the law would make is against the policy of the law, and therefore void.” And then, referring to Doe v. Glover (supra), and to the fact that the point of repugnancy was not brought to the attention of the court, he said: “ If the case of Doe v. Glover is to be considered as conflicting with the other authorities, I think that the other authorities, and especially the case of Gulliver v. Yaux, ought to prevail against it.” Lord Justice Bruce also delivered an opinion to the same effect. The case In re Stringer, etc. (L. R., 6 Ch. Div. 1) arose upon a will in which the testator gave to J. his real and personal estate, with full power to sell and dispose thereof, by deed or will, with a gift over in case J. should make no disposition of the property. J. died in the life-time of the testator. It was held at the hearing, by Sir George Jessel, M. B., that the gift over was void for repugnancy. The decision was reversed on appeal on two grounds: first, that as the first gift failed by the death of the primary devisee before the death of the testator, the second devise took effect as a primary limitation ; and second, that on the whole will, the intention was, that the testator should have only a life estate. But the judges expressly recognize and affirm the doctrine that a limitation over, after a fee with an absolute power of disposition in the first taker, would be void. James, L. J., said: “ It is settled by authority that if you give a man some property, real or personal, to be his own absolutely, that you cannot by your will dispose of that property which becomes his. You cannot say that if he does not spend it, or if he does not give it away, if he does not will it, that which he happened to have in his possession, or in his drawer, or in his pocket, at the time of his death, shall not go to his heirs at law if it be realty, or to his next of kin if it be personalty.” (See, also, Shaw v. Ford, L. R., 7 Ch. Div. 669.)

The authorities cited, sustain, I think, the main proposition of this opinion, that according to the uniform course of decision in this country and the great weight of authority in England; a valid executory devise cannot at common law be limited after a fee, upon the contingency of the non-execution of an absolute disposing power vested in the first taker, and that such a limitation over is void in its creation. I have not referred to the provisions of the Revised Statutes. If these provisions (1 R. S. 725, §§ 32, 33) have changed the common law, a point which we do not now decide; they cannot affect the disposition of this case. The rights under the will of Jellis Fonda became fixed upon his death in 1791, and must be adjudged according to the rules of the common law.

- I have considered the case upon the assumption that the right of the plaintiff rested solely upon the will of Jellis Fonda, and have made no reference to the claim made on the argument, so far as appears, for the "first time, that, admitting that the testator’s son Douw took an absolute fee in the fourteen acre's under the will, yet upon his death, his brother Henry took an interest in the land as one of his heirs at law, which became vested in his children upon his death. It is unnecessary to consider this aspect of the case, as the defendant, if the order of the General Term is affirmed, is entitled to judgment absolute upon the plaintiff’s stipulation.

I close this too protracted discussion. It may find some excuse in the desire to vindicate the doctrine of JaoJeson v. Bull, and the cases in this State which have followed it, from the claim persistently urged, but, as I think, without foundation, that that doctrine was a departure from the established law.

The order of the General Term should be affirmed, and judgment absolute directed for the defendant.