
    David and others vs. Bridgman and others.
    
    A devised as follows: 1st. “It is my will that my beloved wife Martha David, have all my estate, both real and personal, during her life, excepting a debt due me by James Chandon ol’ about three thousand dollars, which I will and bequeath to the grand children of my mother, Mary David, to be paid them equally as they come of age,” &c. 2d. “ It is my will, that my wife Martha) at her death, may have full power and authority to dispose of all njy personal property, money, bank stock, &c. (my negroes excepted) in any manner she may think proper.” It was held, that this bequest gave to the wife the absolute and unqualified property in the personal estate, (the slaves excepted) which upon her death, without making a will, vested in her distributees.
   Catron, Judge.

Sampson David, of Campbell county, made .his will in 1826, and shortly’ thereafter died. He left a wife,but no children. By the first clause of his will, he provides for his wife in these words: 1st. “It is my will that my beloved wife, Martha David, have all my estate, both real and personal, during her life, excepting a debt due me by James Chandon,” which he devised to the grand children of his mother, specially.

2. “It is my will that my wife Martha, at her death,. may have full power and authority to dispose of all my personal property, or money, bank stock, &c. (my negro slaves excepted) in any manner she may think proper.”

Sampson David left a considerable personal estate (being a merchant) in store goods, outstanding debts, stock, household goods, farming tools, &c.

His wife was also appointed sole executrix; she qualified and proceeded to carry on the mercantile business as usual, and treated the whole personal properly (except the slaves) as her own absolutely, after paying the debts owing by her husband at his death.

In 1827, Martha David, the wife, died intestate, leaving brothers and sisters. Her husband also left brothers and sisters; the latter are complainants, and the former defendants to this bill, and the question is, did Martha David take an absolute title to the personal property devised to her by her husband, or did she take a life estate only? If the former, her distributees are entitled to the property; if the latter, the distributees of the husband “are entitled. The Chancellor below thought the title of Martha David absolute, and dismissed the bill.

Our only business is to ascertain the intention of the testator, Sampson David. By the first clause he gave his wife Martha,-all his property and estate, personal and real, during her life; and the difficulty is, how far the latter clause controls the first. He gives the wife power, at her death, to dispose of all the personal property, (slaves, excepted,) in any manner she might think proper. As to so much of the personal property as was of a perishable nature, and must necessarily have been exhausted in the use, no remainder it is supposed could be limited. The old rule was, that of personal goods no limitation over; could be made. (Bac. Ab. Remainder A. This was an established principle until after the days of Lord Coke. Inroads have since been made upon it, until the exceptions, applying first to one, and then to another species of personal property, are as well settled as the rule; but then the intention of the testator must be plain that he only gives the use of the property to the first taker for life; for if words of enlargement are added, authorising the first taker.to dispose of the property by deed or contract generally for his own use, it is a well settled principle that the first taker has vested in him the absolute title. This court laid down the rule .in Smith vs. Bell and wife to be, that a valid executory devise, is such an one as cannot be defeated at the will and pleasure of the first taker by sale, or any other mode of alienation.” To this rule there are the exceptions, of a power given by the will to dispose of the property by deed, or by will, executed in a particular manner. As the intention of the testator in every instance is to be executed, so in case of a limited power of disposition, it is too manifest to admit of doubt, or legal construction; but where a general power of alienation is given in any mode, and to any person, at the will and pleasure of the first taker, the law deems the interest of the remainderman, too uncertain to af „ , , „ , ford it any protection: to impound the property cannot be ¿]one3 because this would violate the intention of the testator, who gave the first taker all his life time to appropriate the entire property.

The first taker, if the remainder be valid, can only have the use for life; but if he, at his discretion, without limitation as to the mode, can by the terms of the bequest destroy the interest in the remainder, it is manifest the testator intended not to limit, him to the use only, but give him the entire interest; for to give property to A for life, to be disposed of as he might think proper by sale, or otherwise, in fee, would be contradictory and absurd; hence a term of enlargement, which gives a general power of bargaining and selling in fee by the first taker, is deemed in law to communicate the whole estate. The terms employed in Sampson David’s will, fall clearly and plainly within this rule, except that he says, “my wife Martha, at her death, may have full power and authority to dispose of all my personal property, or money, bank slock, &c. in any manner she may think proper.” If the words, “at her death,” had been left out of the will, the case would be free from all difficulty. That Martha David had the right to use the property, without any right on the part of the distributees of Sampson David to impound it during her life time, is, we think, incontrovertible ; that she could sell, give away or destroy it, without legal restraint or molestation by complainants, follows; and that a sale or gift of the property, at any period during her life, would have been in effect, a disposition at her death, (because then, as well as previously, a subsisting alienation,) we have no doubt.

The intention of the testator, it is our object and bu-sinessto ascertain. Judging from the circumstances and situation of Sampson David, and his wife Martha, at the time his will was made, and it is to our minds hardly possible to believe, that he intended this objeci of his bounty and affection, should in her declining years, submit to the drudgery of managing and nursing his estate, (to do which the few years she had to live by the course of nature, would hardly have been sufficient to complete the administration,) without the power to touch a penny of it, save the issues and profits, until the day of her deaths when by testamentary disposition, she would have had the melancholy consolation of providing for those, in reference to whom she saw proper to die intestate. It never came into his mind to trammel his wife to the day of her death with the care of his property, holding it as a trustee, for the ultimate benefit of distant relations. She had helped him to acquire it, they were childless, and it is perfectly manifest from the whole tenor of Sampson David’s will, that his wife’s future comfort was the only object of his solicitude, aside from his slaves, whom he directed to be carried to a non-slave holding state, and emancipated. As some authority, to prove that the words, “dispose of at her death in- any manner she may think proper,” carry the fee the same as if the words, “at her death,” had been left out of the will, we refer to the cases of Goodtitle vs. Otway, (2 Wils. 6,) Turnwell vs. Perkins, (2 Atk. 102,) Robertson vs. Dusgale, (2 Ver. 181,) Pushman vs. Filliter, (3 Ves. 7. In these wills, the words were, 1. The testator devised his lands to Agnes Pearson, for and during her life, and after her death to her lawful issue, and if she shall have no issue, she shall have power to dispose thereof at her will and pleasure. (2 Wils. 6.

2. I give my house to A. for her own use, to give away at her death, to whom she pleases. (2 Atk. 182.

3. To A. for life, remainder to B. in fee, he paying £400, whereof £200 to be at the disposal of my wife? in and by her last will and testament, to whom she shall think fit to give the same. (2 Ver. 181.

4. All my household goods, furniture, ready money, securities for money, stock in trade, &c. I give, devise and bequeath unto my said wife Mary Pushman, desiring her to provide for my daughter Anne . out of the same, as long as my said wife shall live, and at her decease to dispose of what shall be left among my children in such manner as she shall judge most proper. (3 Ves. 7. In the foregoing cases, the devisees were declared to hold in o o ’ fee5 because powers to dispose of the fee, and destroy the remainder, were given.

The cage of Goodtitle vs. Otway, is not distinguishable from the present, except that any issue Agnes Pearson might have were provided for; she had none, hence the contingent remainder did not vest, and the power to dis. pose of the estate at her will and pleasure, was holden to carry the fee, although the first part of the clause gave the estate for life only.

In Shermer vs. Shermer’s Executors, (I Washington’s Rep. 266,) John Shermer, by his will devised to his wife the use and profits of his whole estate both real and personal, duringher natural life,and after thatwas ended,then the whole of his estate tobesequally dividedbetween whomsoever his wife should think proper to make her heir or heirs, and his brother Richard Shermer. The supreme court of Virginia declared the wife (who died intestate) took the fee to the moiety, and decreed it to her heirs and distributees. The provisions ofthe wills and the circumstances of the parties, were the same in that case and in the present.

If Martha David as devisee of her husband, could law. fully part with the property bequeathed (and now m controversy) at every period after S. David’s death, and communicate a good title to the purchaser, it follows, that she had the power as effectually to defeat the estate in remainder, as if the words at her death,” had not been inserted in the will. To test this, we will suppose she had sold as devisee, to A, part of the property, (and she sold as owner much of it,) and after her death, A had been sued by the administrator de bonis non of Sampson David, the defendant A, relying upon his title acquired from Martha David, not as executrix, but as devisee of her husband; such a case would present an alienation subject to no legal objection when made, and good and subsisting at the death of Martha David, at which time she accorded to the tranfers her sanction. This would have been a disposition of the property at her death, within the meaning of the will, and a good execution of the power. The legal effect therefore of the bequest is the same as if Sampson David had given to his wife his property for life, to be disposed of in any manner she might think proper, which would have vested the absolute title, as is admitted on all hands.

Did Sampson David die intestate in reference to his slaves? He devised them to his wife during life, if she should die before 1840; on her death, or in any event, on the first of January, 1840, he vested them in trustees in remainder, to be hired out until a sufficient sum was earned to transfer them to some colony or state where freedom was allowed or tolerated, and directed them to be emancipated. After the death of Martha David, the trustees assumed the duties of the trust, took the slaves into their possession, and hired them out.

This disposition violated no law or policy of Tennessee, and cut off all pretence of claim on the part of the distri-butees of Sampson David. They charge the trustees with an unfaithful execution of the trust. It matters nothing to them; they have no interest,and consequently no right to complain.

It is insisted the property should be taken out of the hands of the administrator of Martha, and placed in the hands of Sampson David’s administrator, de bonis non; because the latter may be sued, plead fully administered, and the real estate in possession of complainants, as heirs of Sampson David, be sacrificed by the creditors. The administrator of Sampson David is not sued; it is even uncertain, whether any debts are outstanding against him as administrator. The contingency is too remote for this court to notice it; when the supposed case arises, it will be time for a court of equity to interpose its powers. Dismiss the bill and affirm the decree of the chancellor.

Peck, Judge, concurred.

Whyte, Judge,

(dissenting.) The matter in controversy between the parties, originates in the will of Sampson David, and depends on the following clause, to “It is my will, that my beloved wife, Martha David, jlave a]j my esj;ate, both real and personal, during her life, (excepting a debt due by John Chandon, of three thousand dollars, or thereabouts,) which said debt due me by said Chandon, I will and bequeath to the grand children of my mother, Mary David, to be paid to them equally as they come of age, to wit, the children of Sims David, James David, Isaac David and Mary Chandon, wife of David Chandon. It is my will, that my wife Martha, at her death, may have full power and authority to dispose of all my personal property, or money, bank stock, &c. my negro slaves excepted, in any manner she may think proper.”

On the part of the plaintiffs it is contended, that Mrs David took an interest in the property for her life only, with a power of appointment at her death, of the remainder of the personalty, (which is only in dispute by the argument,) and that she (Mrs David) having departed this life without having executed the power so given to her, the personal property, by the statute of distributions goes to the next of kin of the testator, Sampson David. On the part of the defendants, it is contended, that Mrs David took the absolute interest in the personalty by the will, and that the power given of disposing of it at her death, accords with such interest being in her, and (hat the intention is evidenced by the amplitude of the expression, “may have full power and authority at her death, to dispose of all my personal property, or money, bank stock, &c., my negro slaves excepted, in any manner she may think proper.”

The object in all contested testamentary dispositions of property, where the subject matter of disposal, the person who is the object of the testator’s bounty, or the quantum of interest to be passed by the instrument, are all, or either of them litigated, is to ascertain the intention of the testator; this is the first and great inquiry, and when it is first ascertained, a second may according to circumstances arise, to wit, whether this intention comports with the rules of law, and is sanctioned by those principles, which in a course of judicial decision have governed cases of the like kind.

There is no question raised upon this will, as to the kind of property, or the specific nature of it: the only question made by the argument is, the quantum of interest in the property which is the subject of the testamentary disposition. On the solution of this question depends necessarily at the same time, who is taker under the will and the object of the testator’s bounty; for if a limited interest only is given to Mrs David the wife, then .the next of kin of the testator, Sampson David, are the takers of the remainder of the interest. If an absolute estate is given to Mrs David by the will, then her next of kin become the objects of the testator’s bounty, and not the next of kin of the testator. If there is no latent ambiguity on the face of the will, the construction must be on the face of the instrument itself. “It is a well settled rule,” says Chancellor Kent; “that seems not to stand in need of much proof or illustration, for it runs through all the books, from Cheyney’s case, (5 Coke, 68,) down to this day, that parol evidence cannot be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specified cases; 1st, where there is a la’tent ambiguity arising dehors the will, as to the person or subject meant to be described; and 2d, to rebut a resulting trust.” The objections to supply the imperfections of a written will by the testimony of witnesses, is founded on the soundest principle of law and policy. It would be full of great inconvenience, say the justices in Cheyney’s case, “that none should know by the written words of a will what construction to make or advice to give, but that it should bé controlled by collateral averments out of the will.” “If collateral averments be admitted,” says Lord Hale, in Fry vs. Porter, (1 Mod. 310,) “how can there be any certainty; a will may be any thing, every thing, nothing.” And in a later case, (3 P. Williams, 354,) Lord Talbot said, “that if we admit parol proof,, then the witnesses and not the testator, would make the will.”

Neither of the two specified cases excepted out of the rule, exist in the present cause; the construction, by all the authorities, must be upon the face of the instrument itself. That part of the above clause which is principally contested, if not altogether, between the parties to the suit, consists of the first and last members of it. The subject matter of the middle member being excepted out of the provisions of the first and last members, is out of the case, no question being raised upon it by the argument. The first member is, “it is my will, that my beloved wife Martha David, have all my estate both real and personal, during her life, excepting,” &c. It is contended for the defendants, that the words “during her life,” have an application only to the real estate, and were inserted for the purpose of limiting the extent, or repelling the effect which a general devise to a person, even without words of procreation or perpetuity, would be construed to give without such words; that this reference being applicable solely to the real estate, disengages the personal estate from their operation, and passes the absolute interest, as if they, the words “during her life,” had not been inserted, which absolute interest passing for a moment without qualification, passes forever. 1 am at a loss to perceive the propriety of this criticism, and why there should be a separation in the tenure of the two kinds of property, which the obvious sense of the passage, as well as the structure of the clause, the preceding copulate “both,” and the following limitation, “during her life,” have inseparably joined together. “All my estate both real and personal,” is a junction of the two estates, an uniting them together for the same purpose, to wit, to be held by my beloved wife, Martha David, for what length of time? During her life. It would not only be a distortion of the sense, but a grammatical impropriety, to pass over the first antecedent, and gratuitously claim, without a scintilla of reason, the second; or to claim one part of a subject, and reject another part, both parts forming a whole, the subject matter of the limitation It therefore seems to me to be the obvious, apparent and undoubted intention of the testator, by this member of the clause, to give to his wife, Martha David, the like interest in both kinds of property, the same in the personal as in the real; that is, ah interest or estate during her life. And it further seems to me, that no mode of expression could have been used by him more appropriate to the purpose of communicating that intention, in a plainer and clearer manner than has been done.

It is next to be seen, whether the intention manifested by this first member, to give a life interest only to the wife, is impugned in any manner by the other member above noticed, either by diminution or enlargement of that interest, or in any other way affecting it. This member says, “it is my will, that my wife Martha, at her death, may have power and authority to dispose of all my personal property, or money, bank stock, &c., my negro slaves excepted, in any manner she may think proper.” The plain meaning of this member is, his giving his wife the liberty of choosing or selecting the person or persons who shall take the persona] property after her death, that was given to her during her life; or in other words, the power of appointment generally, both as to the object and quantity, whether to one or more persons, and if the latter, in what proportion or quantity to each respectively. This was a liberty or power that necessarily follows the interest previously given, to be exercised and take effect upon the termination of that interest, her life estate, to wit, after her death, It is perfectly consistent with the interest before given, not infringing upon it in the smallest degree, following the ■ former in regular succession, corroborating, were it necessary to do so, the intention of giving, and of having given an estate or interest for life only, by the former or the first member, to his wife. But it is argued by the counsel, that the last member enlarges the interest given by the first, or shows the intention of the testator by the first to be, not a limited interest for life only, or an estate for life, but an unlimited interest, or the absolute property. How can such a construction as this be passed upon the testator for his intention? If the absolute property was given before by the words “during her life,” it virtually included the provision contained in this member, and ex necessitate, carried with it as an incident, the power of disposing of the personal property, not only at her death, as in this member, but during her life also, and that at all times. And therefore, if that was his intention before, an expression of it here was wholly unnecessary, and could not have been expected to be used by him, because its use upon that construction would be inoperative. One other circumstance in the phraseology of the last member of the clause, is to be noticed as strongly indicative of the intention, and that is, the repetition of the time when the power given is to be exercised, to wit, at her death. The diction is, “at her death, to have full power and authority, at her death, to dispose, &c.” This double expression of the time shows the importance attached to it by the testator, and betokens a state of mind solicitous to insure clear notice and strict observance, implying forcibly the negative of any other previous time than the one so pointed out.

This is my view of this clause of Sampson David’s will; and I think it must be the view that would naturally present itself to any person whose mind is disineum-bered from the distinctions and niceties to be found in the books on contested testamentary bequests, upon his reading this will for the purpose of seeing how the testator has disposed of his property; and such, to my mind, undoubtedly was the intention of the testator, Sampson David.

Having now examined what I consider the most important question in the cause, that is, the intention of the testator appearing on the face of the will itself, as it is thereby presented to the common understanding of mankind, I next proceed to examine this intention upon the cases, and apply the rule in them laid down, as indicative of that intention; which rules may be said to be the intention of the testator, as it has appeared so to be to legally informed minds, to chancellors and judges, upon the wills and testaments before them in a course of litigation between the parties concerned therein.

These cases it is well known are very numerous, and many of them have been cited and referred to in the argument. I shall only notice those particularly, which in my opinion have the nearest resemblance, and are the most in point to the present. The case of Reid vs. Shergold, (10 Ves. 370,) shews that an express estate for life, with a power to dispose by will, does not give the absolute interest, so as to preclude the necessity of executing the power; and the Lord Chancellor in his judgment, page 379, says, it is well settled, in the case alluded to by Mr. Romilly, and many others, that where there is an express limitation for life, with a power to dispose by will, the interest is equivalent only to an estate for life, and the power is to be executed prima facie at least by will. If the party dies, the interest ceases with the life, and no one can take by transmission of interest from that person, though they might take by the power, if executed.” This case is directly in point to the present, as appears from the judgment of the Chancellor; and indeed to use the words of Lord Ellenborough in a case before him, “it runs upon all fours with it.” There is no difference in substance or effect, though a nominal variation in one or two of the words giving the power; in the cited case, the power is to dispose by will; in the case before the court, the power is “to dispose at her death,” an equivalent expression, signifying the same thing: The disposition is to be at her death, taking effect after her death, excluding any disposition to others during her life, and conferring nothingininterest onherwhich she had not before,and that by express terms was an interest for life only, this last being a power. From the very striking similarity between these two cases, I shall make another citation from the judgment of Lord Eldon immediately following the one already made; and I do this as it meets the argument of the counsel on both sides in the present case. Lord Eldon proceeding, says, “In this c9.se the meaning of the testator was this: he was providing anxiously in every part of his will, that his neice should have the power of receiving the rents and profits from time to time, for her separate use, tying up her hands from indulging her inclination against herself. He studiously confines the power of giving the premises, to a power of giving by will, in its nature revocable in every period of life; the power was given in that way to protect her against her own act. This is the more strong, as the bequest of the £20 a year, and the dividends of the £400 stock, are expressly given to the neice for life, and after her death nothing was to take effect in her, or any one but by her authority. She had nothing therefore in point of interest, but for her life. In point of authority, she might by her will have made a disposition to take effect at her death.” All the reasons in the judgment of the chancellor in this casein reference to the will, are peculiarly applicable to Mrs. David. As the Chancellor says, the property was given in the way it was, to protect her against her own act, and from indulging her inclination against herself; therefore, the testator deprived her of the ability of doing so, by virtue of her interest in the estate given her, by limitingit for life; and nothing more than that was to take effect in her, or any one else, as springing from quaintity of interest, but as springing from a power which alone was to be executed at her death. This case in 10 Ves. is a late case, in 1805, of high authority, and shows the law on the point as held in England, in reference to all the preceding decisions to that time. On this ground a particular notice of prior cases on the point, is deemed quite unnecessary. Two later cases from the same reporter have been cited by the defendant’s counsel as having analogy to this case, for the purpose of impugning the doctrine of it, to wit, the case of Bradford vs. Street, (16 Ves. 139,) decided in 1809; and Turin vs. Farner, (19 Ves. 85,) in 1812; but when looked info will be found not to interfere with it. In the first, by the will and codicil, the power is given to dispose of the estate in her lifetime, by any deed or deeds in writing, or by her last will and testament, and therefore is far from coming up to the present case. In the last case, there was a legacy for life, with a general power of appointment by will, or otherwise, of course by deed in her lifetime, which amounts to an absolute power of disposition at any time. These cases are wholly inconsistent with a life interest. They strengthen instead of detracting from the authority of Reid vs. Shergold, and are direct authorities in favor of the plaintiff.

I will now advert to some of the cases relied on by the arguments for the defendants. The principal case is Shermer vs. Shermer’s Executors, (1 Wash. Rep. 266. John Shermer by his will, devised to his wife the use and ■ profits of his whole estate, both real and personal, during her natural life, and after that was ended, then the whole of his estate, exclusive of that already given to his wife, to be equally divided between whomsoever his wife should think proper to make her heir or heirs, and his brother Rich’d. Shermer. He further directed, that his executors, as soon as the crops were finished after his wife’s death, should sell and dispose of his whole estate, real and personal, as they'might think most proper for the receiver’s benefit. The wife died in 1775, a few days after the testator, without making any appointment of her part of the estate. The executors sold the estate agreeably to the will, and distributed one moiety thereof amongst the relations of Mrs. Shermer, for the recovery of which this suit was brought against the executors and distributees, by John Shermer, son, heir and executor of Richard Shermer. It was argued for the appellee, that in last wills it is not necessary that the testator should use technical words in order to pass a fee; for however inartificially he may express himself, yet if his intention can be discovered to mean a disposition of his whole interest in the thing devised, the court will supply such words as maybe necessary to effectuate the intention. It will be seen, when looking into the report of this case, to be an authority not very happily applied to support or prove any particular principle, rule or point, as springing from, laid down, or established by any case, or class of cases. It pays no great respect to eases in general on this subject, and the decision professes not no be founded on any of them, but on the apparent intention upon view of the will. The President in delivering the opinion of the court, says, “several cases have been cited, but they seem to verify the saying of a judge,‘that in disputes upon wills, cases seldom elucidate the subject, which depending on the intention of the testator to be collected from the will, and the relative situation of the parties, ought to be decided upon the state and circumstances of each case.’ To which I will add, that I have generally observed, that adjudged cases have more frequently been produced to disappoint, than to illustrate the intention; and I am free to own, that when a testator’s intention is apparent to me, cases must be strong, uniform, and apply pointedly, before they will prevail to frustrate that intention.” And accordingly the decision of the cause was directed by the intention of the testator. The opinion proceeding, after noticing a point in the case, says, “that point need not be decided, since upon a view of the will, the intention is apparent that the wife’should have the whole estate for life, and that at her death one half (except his special bounty to her) should go to her family, and the other to his own.” This case it is seen is unlike the present in its statement or facts, and therefore not a special authority to support the position for which it was adduced. But it is a highly respeqtable authority upon its own point, which is, that when upon a view of the will, the intention of the testator is apparent, cases must be strong, uniform and apply pointedly, before they will prevail to frustrate that intention.

Another case cited as showing that where a life estate is given to the wife, and a power of disposing at her death, gives the absolute property to the wife, is Pushman vs. Filliter, (3 Ves. 7;) but on examining that case it will be found to establish no such principle: the bequest is, “lastly, all my household goods and furniture, plate, linen and china, ready money and securities for money, stock In trade, together with the residue and remainder of my personal estate, of every nature and kind soever, and wheresoever, I give, devise and bequeath unto my said wife Mary Pushman, desiring her to provide for mydaugh-ter Anne out of the same, as long as she my said wife shall live, and at her decease to dispose of what shall be left among my children in such manner as she shall judge most proper.” No life estate or interest is given here to the wife; the absolute gift is to her of part of the property, clothed only with a trust for his daughter Anne; the life term is not attached to the interest of his wife Mary Pushman, but to the trust of the daughter Anne, who only could file a bill to impound the property. The rest of the children could not file a bill, which proves the absolute estate passed to their mother as far as regarded them, and not a life estate, which it must have done to make it an authority for the defendants, and bearing on the case before the court. This is a single case, of Push-man vs. Filliter: it occupies the middle ground between an estate given generally without specification of interest, with power to dispose of it at her death as she may choose, and where an estate is given expressly for life, having that particular specification of interest, with a power to dispose of at her death, as she may choose. In the former, the law on the cases has made the bequest an absolute interest in the first taker, or legatee, to dispose of in any manner, or at any time such taker may choose, being complete owner to all intents and purposes whatever.

In the latter, the law upon the cases is, that the first taker, or life interest, has only the use during life, with a power of appointment at death; which if executed, passes the property to the appointee 5 if not executed, it vests under the statute of distributions. This case of Pushman vs. Filliter, as far as regards the trust to the testator’s daughter, comes within the principle of the latter class of cases, and as far as regards the rest of the testator’s children,comes within the principle of the former; and though in terms it is not precisely in point to the present case, yet is directly illustrative of the principle of each of the above classes of cases alluded to, and an authority for the plaintiffs.

Having now made my observations upon the cases the most relied upon on either side, particularly, it would be too tedious, and also unnecessary to go through all the other cases in the same manner, that have been cited on the argument, and therefore I will content myself with observing, that in general they are such as from the generality of the expressions creating the estate or interest given to the first taker, are necessarily construed to be a fee in the case of real property, and the absolute interest in the case of personalty, as in 1 Salk. 236; 2 P. Will. 543; 5 Bur. 2638; 1 Leon. 256; 2 Atk. 102; 2 Wils. 6; 2 Johns. Rep. 381; and that whenever it is the clear intention of the testator that the devisee should have an absolute property in the estate devised, a limitation must be void, because it is inconsistent with the absolute property supposed to be in the first devisee, as in Attorney General vs. Hall, (Fitz. 314;) Ross vs. Ross, (1 Jac. and Walk.) and Smith T. vs. Bell and wife, (Martin and Yerger’s Rep. 302.

A review of the doctrine on this much extended subject, is taken by Chancellor Kent in the recent case of Jackson vs. Robins, 1819, in the court of Errors of the State of New York, in affirmance of the decree of the supreme court of that State in the same cause, in which after a most able and laborious examination of the cases, as well English as American, (and it must he admitted that no man was perhaps better qualified for such a task,) he comes to the following conclusion: “We lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is, where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case, the devisee for life, will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion.” And he says this distinction is carefully marked and settled in the cases. Tomlinson vs. Dighton, (1 P. Wms. 149;) Cropling vs. Cropling, (2 Cox 396;) Reid vs. Shergold, (10 Ves. 370;) Goodtitle vs. Otway, (2 Wilson 6.

From these cases, and a very great number of others, for the books are full of them, the great governing principle upon contested devises and bequests, is, that the intention of the testator is to govern, unless inconsistent with the established rules of law. And the particular principles established by the particular cases, are the construction of the expression made use of by the testator, or the intention of the testator as it appeared to be to the learned expounders or declarers of that intention. The result of the whole of them is, that whereas in the present case before the court, an express estate is given for life, with a power to dispose of the subject by will, or at death, which is the same thing, there the interest for life is not increased by the power, the operation of the power being that of appointing who shall take after the death, not that any further or greater interest be given to the taker of the life estate.

I am of opinion, therefore, that the decree of the chancellor be reversed, and a judgment and decree be rendered for the plaintiffs, and the cause remanded to the court of chancery, &c.

Judgment affirmed.  