
    Marilla C. Rail et al. vs. William Dotson et al.
    The testator, after devising certain real estate to H., as trustee for his daughter M. H., to her sole and separate use, to the exclusion of her husband, adds : “It is my will that the said M. H. shall have the entire control for life, and at her death, the said land and negroes shall be divided among her children, but in case she should die without issue, then said land and negroes shall be equally divided among my surviving children ; ” in a codicil the testator provided as follows, viz.: “ It is my will, that all the devises in my will, for the benefit of my said daughter M. II., shall vest in C., as trustee for my said daughter, and for her sole and separate use, and I hereby appoint the said C. to be trustee for my said daughter; and it is my will that the said M. H. shall, at her election, be entitled to the possession, use, management, and control, of all the property devised to her in such will during her life, and to sell and exchange the same, and shall have full power to dispose of the same or any part thereof, at her discretion, by her last will and testament; and I hereby ratify, confirm, and republish my said will in all things except as altered by this codicil: ” held, that by the clause of the will proper, a life estate only in the property was devised to M. H., with valid limitations over to the testat'or’s surviving children; and that there was nothing in the codicil to alter this life estate into a fee simple estate.
    The estate in M. H., created by will and codicil, was a life estate, subject to be divested by the exercise of the power of disposition ; and if that power were not exercised, no change was wrought in the character of the estate.
    In the English law, power of “ sale and exchange” have a definite meaning; they imply that the proceeds of the sale are to be vested in another estate of the same character, and to be settled to the same uses; in practice they are often exercised in aid of, and not to interfere with the ultimate limitations, and to carry out the intentions of the parties.
    Powers derive their principal effect from the statute of uses; they are watched with the same jealousy as any other mode of conveyance, when they tend to create perpetuities ; subject to the limits prescribed to guard against restraints upon alienation, they may be created at the pleasure of the party; if they transgress these limits, they are void ; if they do not, they have the same claims to support with remainders or executory devises; and it seems that the statute, Hutch. Code, 610., § 26, in relation to limitations of estates, by will or deed, should be extended to estates to be created by the exercise of powers, and their validity should be tested by its provisions.
    Where a testator bequeathed certain portions of his property to M. for life, with limitations over: it was held, that upon the termination of the life estate, a portion of those claiming the remainder estate might apply to the probate court, to have set apart to them their share of the estate to which, as remainder-men, they were entitled, even though other parties claiming also under the will, claimed the whole property.
    On appeal from the probate court of Claiborne county; Hon. Wm. M. Randolph, judge.
    At the May term, 1846, of said court, Marilla C. Rail and Calista J. Rail, infants, by their next friend, filed their petition, in which they allege, that they are the children of John Rail, deceased, that prior to his death the said John Rail made a will and codicil thereto, and appointed William Dotson, James E. Calhoun, and Moses D. Shelby, his executors; which said last will and codicil were duly admitted to probate in said court, and letters testamentary granted to Dotson and Shelby, Calhoun having declined to act.
    That in and by said last will, the said Rail devised and bequeathed to his daughter, Mary Hume, for life, 500 acres of land; and to the said Mary Hume, and the children of his deceased son in law, E. W. Calhoun, all of his negro slaves and their increase, not therein previously bequeathed, to be equally divided according to valuation, one half for the separate use and benefit of said Mary Hume, and the other half to the children of said E. W. Calhoun.
    That in and by said last will, the said John Rail provided, that the said Mary Hume should have the entire control and disposal of the proceeds and profits of the land and negroes devised to her, for life; and at her death, that said land and negroes should be divided among her children; but that in case she died without issue, the said land and negroes should be equally divided between the surviving children of him, the said Rail.
    That by the codicil to said will, the said John Rail appointed Mrs. Amelia A. Calhoun, trustee, to hold, for the use and benefit of Mary Hume, all the property bequeathed and devised to her in said will; and furthermore provided, that the said Mary Hume should, at her election, be entitled to the possession, use, management, and control, of all the property devised to her in said will, during her life, and to sell and exchange the same, and to dispose of the same or any part thereof, at her discretion, by her last will and testament.
    They then give the names of the negro slaves bequeathed to Mary Hume and the children of E. W. Calhoun, and allege that they are now in the possession of Thomas Young, who has intermarried with Amelia A. Calhoun.
    They allege that in 1843, and after the death of sai'd John Rail, Mary Hume departed this life without issue, without having sold or exchanged any of said property, and without having made a will.
    That John C. Calhoun and Mary H. Calhoun are the sole surviving children of E. W. Calhoun, and that no division has been made between them and Mary Hume.
    That Amelia A. Young and petitioners are the only surviving children of John Rail.
    They submit that they are severally entitled to one third part of the land and negroes bequeathed to Mary Hume, for life, and pray for commissioners to divide the same.
    They pray for citations against Dotson and Shelby, executors of John Rail, Thomas Young and Amelia A., his wife, and John C. and Mary H. Calhoun, &c.
    A copy of the will of John Rail is filed as Exhibit A, to said petition.
    Young and wife demurred to said petition ; the demurrer was sustained, and the petition dismissed, and this appeal prayed.
    It was admitted in this court, that complainants below were only half sisters to Mary Hnme and Amelia A. Calhoun, now Amelia A. Young; and that the two latter were sisters of the full blood.
    
      Jno. B. Coleman, for appellant, insisted,
    1. That the probate court had jurisdiction.
    The petition prays for a division of real estate devised, and personal estate bequeathed, by will.
    In regard to real estate, this proceeding is expressly given by Hutch. Code, 670, § 112.
    In regard to personal property, it is also given, in the same terms, by Hutch. Code, 673, § 2, art. 2.
    It is also provided, Hutch. Code, 665, § 92, that ány person entitled to a legacy, ! or any estate by will,” may petition the orphan’s court, &c.
    2. That the will gave to Mrs. Mary Hume an estate for life only, in the land and negroes devised, with remainder to her issue, should she have any surviving her, and on failure of issue, with remainder to the surviving children of the testator.
    The codicil does not revoke the will in the foregoing particular, or confer upon Mrs. Hume a higher or different estate from that given by the will. It recognizes her estate, as it is created by the will, to be but a life estate, but confers upon her the power to sell and exchange it, and to dispose of the same or any part thereof, at her discretion, by her last will and testament.
    When an estate is devised, generally, with a power of disposition by will or otherwise, the devisee at once takes an absolute fee. But when the devise is expressly for life, with a like power of disposition, the estate for life is not thereby enlarged. 6 Cruise on Real Est. 822; 1 Sugd. on Pow. 119, 124; 13 Vesey, Jr. 453; 10 East, 438; 16 Johns. 588; 2 Sugd. on Pow. 514-517.
    The will gave Mrs. Hume an estate expressly for life. The codicil gave her the power of disposition, and nothing more. The codicil no more revoked the estate for life, than if the will itself had contained the grant of the power of disposition, and there had been no codicil. 1 Jarm. on Wills, 160; lb. 165; ■Brant v. Wilson, 8 Cow. 56.
    3. As to the limitation over, upon the indefinite failure of issue, although such a limitation might be void at common law, our statute has abolished the common law definition of the term, and has substituted for it one more consonant with reason. Hutch. Code, 610, § 26; Rucker v. Lambdin, 12 S. & M. 256.
    
      W. /S'. Wilson, on same side,
    made an elaborate argument.
    
      H. T. Ellett, for Young and wife.
    The limitation contained in the 5th clause of the will of John Rail, to take effect upon the indefinite failure of issue of Mary Hume, may be a good executory devise under our statute. 12 S. & M. 256; 8 lb. 462; 7 lb. 798.
    But a general power of alienation gives a fee, and a limitation over, after a general power of disposition, is void, being repugnant to the nature of the estate. A power to defeat the executory devise by alienation, renders the limitation void. 10 Johns. 12, 17, 19; 12 lb. 389; 2 lb. 391; 16 lb. 589.
    An exception to this rule exists, where the testator gives the first taker an estate for life only, by certain and express words, and annexes a power of disposal. In that case the devisee for life will not take the fee, notwithstanding the power of disposition. 16 Johns. 588; 10 Yesey, 370; 1 P. Wms. 149; 6 Cruise, Dig. 322; 13 Yesey, 453.
    The question then is narrowed to this, Is the estate of Mary Hume, an estate given to her for life only, by certain and express words 7
    We contend that neither the will, nor the codicil, contains any such express limitation of her interest to an estate for life only.
    I. As to the will. The third item gives and bequeaths to Mary Hume, 500 acres of land, and appoints Harding as trustee, to possess and manage it for her. This devise clearly passes a fee simple.’
    
      The fourth item gives to Harding, as trustee for Mary Hume, and to the children of E. Calhoun, all the residue of testator’s negroes, and their increase, to be equally divided, one half for the separate use and benefit of said Mary Hume, and the other half to said children of E. Calhoun. There is no restriction here, and the words of the will clearly pass a fee.
    The fifth clause gives to Mary Hume the entire control and disposal of the proceeds and profits of the land and negroes, for life, that is, during her life, and at her death the land and negroes shall be divided among her children. There is no power of disposal of the property itself given to Mary Hume, nor is there any limitation of her estate to an estate for life only. Her control of the proceeds is confined to her lifetime, and on her death the property is given to her children.
    That this is the appropriate language to create an estate tail, and not for life. 4 Kent, 214;' Shelley's case, 1 Coke, 104. The same words which would create an estate tail in freeholds, give the absolute interest as to chattels. 2 Kent, 353; 2 Black. Comm. 113, n. 17, p. 398; Harg. Co. Lift. 20; Fearne, R. (3d edit.) 345; Rop. on Leg. ch. 17.
    By our statute, the rule is now the same as to lands. Words that at common law create an estate tail, now pass the fee. Hutch. Code, 609, § 24.
    Mrs. Hume then took a fee simple, both in the land and negroes devised to her; and as a power of disposition is incident to a fee, then upon the principles before laid down, the limitation over, on failure of her issue, being repugnant to her absolute ownership, is void, and cannot take effect.
    
    Lands, by the statute, Hutch. Code, 609, § 24, may in some cases be devised over, but personalty cannot; but in all cases, words that at common law would create an estate tail, now pass the entire interest in personal chattels.
    It is submitted, that, by the will, the estate devised to Mary Hume, is not an estate expressly for life, but is clearly a fee.
    2.. Upon the construction of the codicil. This removes Harding and appoints Mrs. Calhoun to be trustee for Mary Hume. It then provides, that Mary Hume shall, at her election, be entitled to the possession, use, management, and control of all the property, during her life, and to sell and exchange the same, and shall have full power to dispose of the same, or any part thereof, by last will and testament.
    The plain intent and object of this provision is to give the absolute fee to Mary Hume. The manifest intention is to give her as full a property, as is consistent with the design of excluding her husband from all participation in it, without her consent. By her death, without having chosen to exercise her power of disposition, the property is left to the legal course of descent, and her husband is entitled to it, if living, and if not, then Mrs. Young, her sister, of the. whole blood, inherits.
    The ratification of the will, except as altered by the codicil, amounts to nothing; for without any such express ratification the will would stand, except so far as expressly altered. The ■question is, How far is the will altered ? The will attempts to entail the property. The codicil shows a purpose to alter this estate to an absolute fee, an object which the law itself would have accomplished.
    We insist, therefore, that, by the will and codicil both, the limitation over, on the failure of issue of Mary Hume, is void, because Mary Hume herself takes the fee.
    Thrasher, on same side,
    argued the case at length.
   Mr. Justice Clayton

delivered the opinion of the court.

The controversy in this case grows out of the will of John Rail, deceased. Two clauses bear principally upop the point, though it may be necessary to allude to others. The first of these is in the body of the will, the other in the codicil. Their legal effect, however, is the same as if both were contained in the will itself.

After devising certain real and personal estate to Richard Harding, as trustee for his daughter, Mary Hume, to her sole and separate use, to the exclusion of her husband, the first clause in question says: “It is my will, that the said Mary Hume shall have the entire control and disposal of the proceeds and profits of the land and negroes devised to her, for life, and at her death the said land and negroes shall be divided among her children, but in case she should die without issue, then said land and negroes shall be equally divided among my surviving children.”

The other clause revokes the appointment of Harding, as trustee for his daughter, Mary Hume, and then goes on to say: “It is my will, that all the devise's in my will, for the benefit of my said daughter, Mary Hume, shall vest in Mrs. Amelia A. Calhoun, as trustee for my said daughter, and for her sole and separate use. and I hereby appoint the said Amelia to be trustee for my said daughter: and it is my will that the said Mary Hume shall, at her election, be entitled to the possession, use, management and control, of all the property devised to her in said will, during her life, and to sell and exchange the same, and shall have full power to dispose of the same, or any part thereof, at her discretion, by her last will and testament. And I hereby ratify, confirm, and republish, my said will, in all ' things except as altered by this codicil.”

Mrs. Hume died without issue. The appellants are her half sisters, and claim under the limitation. The appellees represent those, who, as the whole blood, claim the estate by descent from Mrs. Hume. The validity of the limitation over, is the point to be decided. ,

There is no doubt that, according to the former decisions of this court, if the first clause stood alone, and unaffected by the latter, that the limitation over would be held good, and the appellants entitled to recover. Rucker v. Lambdin, 12 S. & M. 256; Kirby v. Calhoun, 8 Ib. 462.

Is there any thing in the codicil to change this result? The leading object of the testator in his bequests to Mrs. Hume, was to make a provision for her sole and separate use, and to place her fortune beyond the reach of her husband. In the will the property is vested in her trustee, and the profits and proceeds made subject to her disposal. In the codicil, the property is again vested in a trustee for' the same purposes, but at her election she is to be entitled to its possession and management, and to sell and exchange the same, and to dispose of it at discretion by last will and testament. Does the codicil enlarge the life estate given by the will, into 'a fee simple! If it does not, the limitation is admitted to be valid. In express words, then, it does not. Taking the two clauses together, it is still an estate for life, with a power of sale and exchange, or a power of disposition by will, snperadded. The authorities are express that such power appended to an estate for life, does not enlarge it into a fee simple. 1 Sugd. Pow. 119; Jackson v. Robins, 16 Johns. R. 587.

The estate was not to be taken out of the hands of her trustee, except at her election: if she made no such election, it remained as it stood before. The estate was vested, subject to be divested by the exercise of the power, and if not exercised, no change was wrought in it. 1 Sugd. ut supra; 2 Sugd. Pow. 5; 4 Kent, 324.

In the English law, powers of “sale and exchange” have a definite meaning. They imply that the proceeds of the sale are to be vested in another estate of the same character, and to be settled to the same uses. Ibid. 494. In practice they are often exercised in aid of, and not to interfere with, the ultimate limitations, and to carry out the intention of the parties.

At last it is a question of intention. Wherever the intention is apparent, it will be carried into effect, if it do not contravene some positive rule of law. 4 Kent, Comm. 318, et seq.; Shermer v. Shermer’s Ex'rs, 1 Wash. (Va.) R. 266. In this instance the testator has shown no intention to enlarge the life estate, unless the legatee elected to exercise the power. The codicil confirmed the will, except so far as altered expressly. There is no change of the limitation, unless by implication. He has shown no design to exclude his younger children from a participation in his bounty, unless Mrs. Hume shonld exercise the power to their prejudice. She might have defeated the limitation, but unless she did so, the fifth clause remains in force. Words are sometimes construed to create an estate for life, or an inheritance, as shall best promote the testator’s intention. In this case that object is best secured, by holding that only a life estate passed to Mrs. Hume, with a power of disposition annexed. 1 Wash. R. 266. Here, however, it is only necessary to give the words their plain meaning.

Powers derive their principal effect from the statute of uses. By their aid, on a given event, by the future direction of the party himself, or of some person appointed by him’j estates which had been limited or permitted to descend to a person, may be divested from him, and vested in another. Fearne, Ex. Dev. 563, note. They are watched with the same jealousy as any other mode of conveyance, when they tend to create perpetuities; but subject to the limits prescribed to guard against restraints upon alienation, they may be created at the pleasure of the party. If they transgress these limits, they are void ; if they do not, they have the same claims to support with remainders or executory devises. 4 Kent, 324, 345. If this will be tried, either by the common law rule against perpetuities, or by our statute in regard to limitations of estates, its provisions will not be found to trench on the prescribed boundaries. Hutch. Code, 610, § 26. Indeed there is every reason to extend this statute to estates to be created by the exercise of powers, and to test their validity by its provisions.

On the whole, we think the intention of the testator was, to give his younger children, on a certain event, a portion of the estate devised to Mrs. Hume, if she did not cut them out by the exercise of her power, and that there is nothing in the law, to prevent carrying this intention into effect.

There is no doubt as to the jurisdiction of the court of probates in the case.

The petition was dismissed in the court below. This was error, and the order is reversed, and the cause remanded, for proceedings in accordance with this opinion.

Judgment reversed.  