
    *May v. Joynes & als.
    
    March Term, 1871,
    Richmond.
    Wills — Interpretation — Life Estate with Power to Dispose of Pee. — Testator says, I give to my beloved and excellent wife, subject to the provisions hereafter declared, my whole estate, real and personal and especially all real estate which I may hereafter acquire, to have during her life, but with full power to make sale of any part of the said estate and to convey absolute title to the purchasers; and use the purchase money for investment or any purpose that she pleases; with only this restriction, that whatever remains at her death shall, after paying any debts she may owe, or any legacies that she may leave, be divided as follows: There are then limitations to his children and grandchildren. Held: The wife takes a fee simple in the real, and an absolute property in the personal, estate; and the limitation over of whatever remains at her death, is inconsistent with and repugnant to such fee simple and absolute property in said real and personal estate, and fails for uncertainty.
    John D. May, of Petersburg, died in July, 18S6, leaving, surviving him, his wife, Margaret B. May, and two daughters. One of the daughters, Mrs. Bayly, was a widow, whose husband died shortly before the testator, and had two daughters; both under age. The other daughter of the testator was the wife of William T. Joynes, and had a daughter and two sons; all under age. These grandchildren were all living at the date of the testator’s will, and were the only grandchildren then living; and they and their mothers were the only descendants of the testator.
    *The testator left a will dated May 21, 1853, and . several codicils. A question arose whether, upon the true construction of the will, the widow took a fee ■simple in the real estate, except that embraced by the second codicil, and an absolute title to the personal property, or only a life estate- in both. This question depended on the second clause of the will, which.is as follows:
    “2. I give to my beloved and excellent wife, subject to the provisions hereafter declared, my whole estate, real and personal, and especially all real estate which I may hereafter acquire, to her during her life, .but with full power to make sale of any part of the said estate, and to convey absolute titles to the purchasers; and use the purchase money for investment or any purpose that she pleases; with only this restriction, that whatever remains at her death, shall, after paying any debts she may owe, or any legacies that she may leave, be divided as follows.” He then ■gave one moiety to three trustees in trust for the use of his daughter Evelyn and her children, during her life, paying to her five hundred dollars per annum, semi-annually; and at her death to be equally divided between them. And he gave the other moiety to trustees for the use of his daughter Margaret and her children, during her life, with the same annuity; and at her death to be .equally divided between them, and the survivors.of them. Out of the profits of this moiety, he wishes $500 to be paid to each of his grandsons for five years after they respectively come of age, unless their mother should deem it right to withhold it in whole or in part. And there were farther limitations over upon the death of any of the grandchildren. He appoints his wife executrix, with power to appoint executors of his will to succeed her.
    In the first codicil he provides that, in case of the marriage of his granddaughter Anna Joynes, he ^wishes an annuity of $500 for five years, out of her mother’s share of his estate, but with her consent only, to be paid to Anna. And he makes the like provision in favor of Anna and Evelyn Baily.
    By the second codicil he refers to a sum of nearly $5,000 which his wife will derive from the United States for the naval services of her father; and that he had directed an investment of $6,000, which he considers wholly hers. If she dies without disposing of it, he wishes each of their five grandchildren, then living, to have one thousand dollars of the principal, and the other thousand dollars of the principal and all the interest to be divided between his two daughters, for their sole and separate use respectively. And he appoints his sons-in-law executors after the death of his wife. There was a devise in this codicil of a tract of land to the wife of William B. Green, about which there was no dispute.
    To settle the construction of this second clause of the will, a friendly suit in chancery was instituted in the Circuit court of Petersburg, at November term, 1856. The bill was filed by the children of Mrs. *Joynes. Mrs. May, in her own right and as executrix of her husband, Mrs. Bayly and her children, and Mrs. Joynes and her husband, were made defendants.
    The bill insisted that Mrs. May was entitled to the real and personal property for her life only; and that the plaintiffs, who claimed to be interested in remainder, were entitled to demand from her an inventory of all such money and personal property in her hands, as she elected to hold as legatee; and like inventories, from time to time, as other money or personal property should come into her hands as legatee; and as she should, under the power given her by the will, convert one sort of property into another; and that they were also entitled to require that she should register the slaves that had come, or might come, to her hands as legatee, as provided by the statute. Code of 1849, ch. 103, sec. 8. The prayer of the bill was, that the court would construe the will and settle the rights of the parties, and order Mrs. May, as tenant for life, to file the inventories and to make the registry of slaves, as the plaintiffs claimed they had a right to demand.
    The answer of Mrs. May claimed that she was entitled absolutely to the whole estate, real and personal, except that embraced in the second codicil; and denies the right of the plaintiffs to demand of her an inventory or a registry of the slaves. Answers were filed by the other defendants, all of which, so far as they related to the- rights claimed by Mrs. May, were merely formal, and submitted the question to the decision of the court. The following facts were agreed in the pleadings; that the testator, at the date of the will, was about seventy years of age, and-his wife nearly as old; that the testator’s estate consisted of land, slaves, money and other personalty, worth not less than $200,000, and yielding an income of about $12,000 per annum; that the debts were of inconsiderable amount; that the husbands of the testator’s daughters were men *in easy circumstances; that the testator was a man of ability and sound judgment, a lawyer of distinction and great experience, and was for several years a judge of the General court.
    The case was heard, by- consent, on the bill and answers, and the Circuit .court being of opinion that Mrs. May was not entitled to a fee simple in the real estate and an absolute title to the personal property, as claimed by her, but was entitled only to a life estate in both classes of property: decreed that she should file the inventories, and make the registry of slaves, prayed for by the bill.
    Mrs-. May, in her own right and as executrix of John E. May, dec’d, applied for an appeal from this decree, which was allowed.
    Conway Robinson for the appellant.
    It is true that the testator, in the second clause of his will, begins by giving to his wife, subject to the provisions thereafter declared, his whole real estate during her life; and if the clause had stopped there, the court might well have pronounced the opinion that she is entitled to the same, except the part embraced in the second codicil, for life only. But the clause extends farther. Not only does it give her full power to make sale of any part of said estate, and to convey absolute title to the purchaser, and use the purchase money for investment, but it authorizes her to use it for “any purpose that she pleases, with only the restriction that whatever remains at her death shall, after paying any debts that she may owe, or any legacies that she may leave, be divided as follows.” These words show a clear intent in the testator to give to his widow an absolute control over his whole estate, and vests in her absolute property.
    The case in 20 Elizabeth, 3 Beon. R. 71, which might seem to sustain the pretensions of the appellees, *it has been judicially declared is not law. After it, in the 29 Elizabeth, was decided Jenner v. Hardie, 1 Beon. R. 283, where lands were devised to one Edith for life, and after some intervening estates there was provision that.if A died without issue in the life of Edith, that then the land should remain to the said Edith, to dispose thereof ■ at her pleasure; and it was held that by these words Edith had a fee simple estate.
    It is enough that the testator places the subject at the disposal of his wife. Although it is given in terms to be at her disposal- in and by her . will, yet if she may dispose of it to whom she shall think .fit to give the same, it has been decided that the whole interest and property of the subject vests in her. Robinson v. Dusgate, 2 Vern. R. 181; Maskelyne'v. Maskelyne, Amb. R. 750; Tomlinson v. Dighton, 1 P. Wms. R. 149; 1 Salk. R. 239. In this last case, Parker, Ch. J., p. 171, speaking of a power given to executors to give or sell, he says: “As the persons intrusted are to convey a fee, they must consequently, and by a necessary construction, be supposed to have a fee themselves.” As Mrs. May is clothed with full power to make sale of any part of the estate, and to convey absolute title to the purchaser, she must consequently, and by necessary construction, have herself the fee simple or absolute property to enable her to pass the absolute title.
    The whole question is, whether the proceeds is not equally absolute; as absolute as was the wife’s title to one-half in Sher-mer v. Shermer’s ex’ors, 1 Wash. 266. It would not be, if she was only author-rized to use the proceeds for investment. But when we find that she may use the proceeds for any. purpose whatever that she pleases, it follows that however absolute was her title to the property, her right to the proceeds is no less so. Elton v. Sheppard, 1 Bro. Ch. R. 532; Hales v. Margferum, 3 Ves. R. 299; Hixon v. Oliver, 13 Ves. ■ R. 108. This must be so, unless a different conclusion *be necessary because of the restriction as to what remains at her death. Upwell v. Halsey, 1 P. Wms. R. 651, 10 Mod. R. 441. But this cannot be; for a limitation is not valid when it is of no more than the first taker shall have left unspent. Attorney-General v. Hall, Eitzg. R. 314; 8 Vin. Abr. 248, pi. 21; 2 Equ. Cas. Abr. 293, pi. 21; Bland v. Bland, 2 Cox R. 349. In such a case it cannot be maintained that the widow has only a usufructuary interest. The power to her to spend the whole is an absolute gift, and confers on her the absolute property. Elanders v. Clark, 1 Ves. Sen. R. 9; 3 Atk. R. 509.
    In Goodtitle v. Otway, 2 Wils. R. 6, the devise was to Agnes Pearson for and during | her life, and after her death to her issue; and, if she shall have no issue, that she shall have power to dispose thereof at her will and pleasure. And the whole court held “that the testator, by giving Agnes power to dispose thereof at her will and pleasure, in case she had no issue, had given her a fee simple, according to what was said by Sergeant Shuttleworth in 1 Beon. R. 283, where the words are the same as here.” “Against this opinion was cited 3 Beon. R. 71, where the like devise was only held to be an estate for life, with authority to dispose of the reversion. But the court said that case was not law; and that the case in 1 Beon. R. 283, was determined after that in 3 Beon. R. 71.”
    The grounds taken in Bightburne, &c. v. Gill,.&c., 3 Bro. P. C. 250 (Tomlin’s edi.),-are as applicable here as there. Here is no partial interest- in the estate given to the widow, which would render her a usu-fructuary owner, entitled to the annual produce only, but without power over the capital. She might sell, give or waste the whole capital itself as her absolute property, and-no court could interfere to prevent her.
    When such an unrestrained power has been-given to the widow, and an absolute interest vested in her, *there can be no valid limitation over to other persons. If the testator imagine, that after giving to the widow such absolute power of disposition, he might by law make further limitations, he was mistaken, as was the testator in Grey v. Montagu, 3 Bro. P. C. 316 (Tomlin’s edi.). But in truth he did not mean to create a limitation valid against her. He “meant his fortune to pass through the pleasure of his wife, leaving it to her to use what she pleased, and consequently to make the residue what she chose.” He never meant that any court should have the power to order the money, to be laid out, and that she should have the interest for her life, and then it should go over. Wynne v. Hawkins, 1 Bro. Ch. R. 179. In Sprague v. Barnard, &c., 2 Bro. Ch. R. 585, the testator employed similar language. The gift for the first taker’s use was followed by these words: ‘ ‘At his death, the remaining part of what is left, that he does not want for his own wants and use, to be divided between,” &c. There, as here, the first taker was the personal representative. The chancellor declared him absolutely entitled to the subject.
    Thus the principle was established, that when there is in the first taker a power to spend or dispose of the whole subject, and the limitation over is of no more than he shall have left unspent or undisposed of, the first taker is thereby vested with- the absolute property, and the limitation over is void.
    The counsel then proceeded to shew that the will did not create a trust in Mrs. May, within the principles laid down in Malim v. Keighley, 2 Ves. Jr. R. 333; and Push-man v. Filliter, 3 Id. 7; and that class of cases. ■ And he then proceeded:
    
      Whenever it is the clear intention of the testator that the devisee shall have an absolute property in the estate devised, a limitation over must be void, because it is inconsistent with the absolute property supposed in the first' devisee. And a right in the first devisee to ^dispose of the estate devised at his pleasure (as distinguished from a mere power of specifying who may take), amounts to an unqualified gift. Ide v. Ide, &c., 5 Mass. R. 500. In this case, the gift to Peleg Ide was followed by a limitation over of “what estate he shall leave.” And it was held, Peleg Ide took the absolute, unqualified interest in the estate; and that the limitation over was void. A similar decision was made by the Supreme court of New York, where the limitation over was of property the first taker “died possessed of.” Jackson v. Bull, 10 John. R. 19. And the same principle was applied where the testator devised his estate, with the provision that, if the first taker died “without giving, devising, selling or assigning it, ” &c., the estate should go over. Jackson v. De Dancy, 13 John. R. 537, 552; Jackson v. Robins, 15 Id. 169; 16 Id. 537, 584. And it was applied to the limitation of real as well as personal estate. Id. 586.
    The limitation over cannot be valid as a remainder; for no remainder can be limited after an estate in fee. Nor can it operate by way of executory devise; for it is a settled rule that a valid executory devise cannot be prevented or defeated by any alteration of the estate out of which or after which it is limited, or by any mode of conveyance. An absolute ownership or capacity to sell, in the first taker, and a vested right by way of executory devise in another, which cannot be affected by such alienation, are, says Chancellor Kent, perfectly incompatible estates, and repugnant to each other; and the latter is to be rejected as void. Jackson v. Robins, 16 John. R. 537, 589. The language used by the chancellor in delivering his opinion in that case, is equally applicable to that now before the court. See Id. 590.
    We find, then, the principle established by the English courts, that although the will shews it to have been the testator’s inten+ion, in respect to the property *given to the first taker, that whatever may “remain at her death,” or whatever is “left undisposed of by her, ” should go to another, this is an intention which must fail on account of its uncertainty, and the first taker in such case has the absolute property. Bull v. Kingston, 1 Meriv. R. 314. He cannot make a valid limitation of such property as she happens to possess at her death. Heaving her to deal with his estate as she pleases, no trust can, be created by a request as to the uncertain property which she may be possessed of at his death. Eade v. Eade, &c., 5 Madd. R. 118. If you give absolute property to a person, you cannot subject it for his life to a proviso, that if he does not spend it, his interest shall cease. One of the consequences, Sir Thomas Plumer remarks, would be, that, if he had not spent it, and were to die indebted to any amount, his creditors would be excluded from it. Ross v. Ross, 1 Jac. & Walk. R. 154. The two objects being inconsistent, to invest the wife with the absolute property, and then provide for the event of her not exercising her rights over it, the latter must yield to the former. Cuthbert v. Furrier, Jacob’s R. 415, 4 Cond. Eng. Ch. R. 191; Bourn v. Gibbs, 1 Tam-lyn’s R. 414, 5 Cond. Eng. Ch. R. 457; Green v. Harvey, 1 Hare’s R. 428, 23 Eng. Ch. R. 428; Huskisson v. Bridge, 3 Eng. E. & Eq- 180.
    The law has been thus established not only in England but also in Virginia. The Virginia cases distinctly recognize the rule, that after an absolute property given to one, with an unlimited power to dispose of it, expressed or implied, a disposition by the owner of so much of the property as may not be disposed of by the donee or legatee, to another, is void because of the inconsistency and uncertainty as to what part of the property is intended to go over. Riddick v. Cohoon, 4 Rand. 547; Madden v. Madden’s ex’ors, 2 Heigh 377, 385; Bur-well’s ex’orsv. Anderson, adm’r, &c., 3 Id. 348, *355. As before mentioned, a like doctrine is established in Massachusetts and New York. Helmer v. Shoemaker, 22 Wend. R. 139. The same doctrine is sustained by many elementary writers. 1 Roper Deg. 640-643; 2 Id. 1431-32; 1 Sugd. Powers 119; 3 Homax Digest p. 116-17, old, and 193 new, edi. ; 2 Story’s Eq. § 1070 to 1073; Keyes on Chattels, p. 110, § 144 to 146, citing at p. 113-14-15, Elinn v. Davis, &c., 18 Alab. R. 132. No distinction between a gift of real and personal property is recognized in 2 Powell on Dev. 460, or in 1 Jarm. on Wills 321-22, or in the early English cases before mentioned, or by the cases in Massachusetts, New York or Virginia. It was suggested, in Nelson v. Cooper, 4 Heigh 408, but held untenable.
    Hord Eldon considered there might be cases in which, there being a particular, limited interest and a sort of power, liberty or authority, though the latter, without a particular, partial, limited interest pointed out, might have amounted to an absolute gift, yet both occurring, the gift is to be held to be of the limited interest, and the other but a power and not an interest. Nannock v. Horton, 7 Ves. R. 392, 398. A case of that class is Reid v. Shergold, 10 Ves. R. 370, 379, where there was an express limitation for life, with a power to dispose by will, but in no other way. In the present case what is given to the wife is more than power, it is property. The opinion of Sir Win. Grant, in Bradley v. Westcott, 13 Ves. R. 444, 451, shews that the wife could not have what she has here without its being property distinct from powers. He says: “it is necessary to construe this (the residue as given) to be either a mere interest for life, or to be property in the widow. There is no medium ; for I cannot say she shall have an interest for life, with a power to 'dispose of the whole as she thinks fit; but the will of the husband shall operate upon what she shall leave undisposed *of. Upon that construction it would be property, as it would be absolutely uncertain what would be the subject of the residuary bequest.”
    In a subsequent case, wherein an estate for life was given to a woman with power to dispose of the estate by deed, writing or will, Sir Wm. Grant laid down, that “an estate for life, with an unqualified power of appointing the inheritance, comprehends everything. ’ ’ And the trusteee was directed to con vey the fee according to the prayer of her bill. Barford v. Street, 16 Ves. R. 135. And to the same effect is Irwin v. Farrar, 19 Ves. R. 86.
    The counsel referred to and commented on the cases of Curtis v. Rippon, 5 Madd. R. 434; Horwood v. West, 1 Sim. & Stu. 387, 1 Cond. Eng. Ch. R. 387; Madden v. Maden’s ex’ors, 2 Beigh 377; Burwell’s ex’ors v. Anderson, 3 Id. 348; Comber v. Graham, 1 Russ. & Myl. 450, 4 Éng. Ch. R. 510; Doe dem Herbert v. Thomas, 3 Adol. & EU. 123, 30 Eng. C. B. R. 48; Archibald v. Wright, 9 Sim. R. 161, 16 Eng. Ch. R. 161; Knight v. Boughton, 11 Clark & Ein. R. 551; Williams v. Williams, 1 Sim. R. N. S. 358, 40- Eng. Ch. R. 358. And he then proceeded:
    The terms employed shew here clearly, as to the whole estate, that the testator intended his wife to have the enjoyment of it during her life, with the fullest power to dispose of it beyond her life, without limitation as to the mode or object of disposition. They give a dominion and control which are precisely the dominion and control of an owner. No owner could have greater. When (says Johnson, Ch.,) a life estate is created in terms, and to this is added a power of ulterior disposition, unconfined as to mode or object, no case has been produced suggesting that this power is a naked power, and requiring to be executed in order to divest the grantor of the fee. Such a power, united to such an interest, . is not a power requiring to *be actually executed; but the two together are descriptive of the most absolute title known to the law. Pulliam, &c. v. Byrd, &c., 2 Strobh. Eq. R. 134, 138.
    There are, no doubt, some cases in England which hold that where there is a gift for life with a testamentary power of disposition over the property, she has not the absolute property, but only a power added to her life estate. Borton v. Borton, 15 Sim. R. 552, 39 Eng. Ch. R. 552. And if the passage in 1 Jarm. on Wills 321, referred to in 3 Botnax Dig. 117, is to be confined to cases of that class, there is no occasion to comment upon it in the present case. It is very certain that the present case is in no wise affected by the case which Jarman refers to of Cooper v. Williams, decided in 1697, and reported in Prec. Ch. 71. And with respect to Gibbs v. Tait, 8 Sim. R. 132, it is sufficient to observe, 1, that according to Jarman the point was not made in that case; and 2, that according to the adjudged cases, new as well as old, there must be a certainty of the subject to make such a trust as can be enforced, and there is not such certainty in a case “where there is a right in the donee to spend the subject of the gift.” If, in such a case, there is a precatory trust to bequeath it over to any other person, the court collects from the fact of a power in the donee to dispose of the subject, that he is to be at liberty to disregard the ulterior intentions of the testator, and holds that a trust which could not be enforced shall not be raised. Such cases are considered to fall completely within the same class as those where in the testator makes a gift of so much as be left at the decease of the person to whom he has given the use. Conman v. Harrison, 17 Eng. B. & Eq- 290; Green v. Marsden, 21. Id. 538.
    In this case the conclusion that Mrs. May has the absolute property, both in realty and personalty, is strengthened by the 2d codicil, and is sustained by all *the Virginia decisions; not only by those which have been reported and
    hereinbefore referred to, but by two others. One of these was made in or about 1850, by the special Court of Appeals, in the case of White’s ex’or v. White’s ex’or, upon the will of Moses White, who left his son land, slaves and other personal property, with a provision that in case his son should die without lawful heir, all the property so left to him should go to the children of the testator’s daughter, unless his said son “has made sale of it in his lifetime.” The son died without issue; and without having ever married, and without making sale of any of the property in his lifetime. Yet the special court held that the giving the son the right to make sale of the property in his lifetime, vested in him the absolute property. The other was the case of Kee.-see’s adm’r v. Sharpe, &c., which related also to the proceeds of realty as well as personalty; and in which, in addition to the life estate, there was, in ithe event that happened, to be one-fourth of the estate at the wife’s own disposal at her death, by will or otherwise, with a limitation over if-she should fail to dispose of it; and it was held that to defeat the limitation there was no necessity for any further disposition than was made by her in that case. In the present case it will be seen that Mrs. May, in her answer, claims the right to hold and deal with the estate as her own, unless it shall be decided that such are not her rights.
    James Alfred Jones, for the appellees.
    In construing this will of Judge May, we are to bear in mind that his wife was not the only object of his bounty. He had children and grand-children; and he owned a large estate. It was natural, therefore, for him to embrace within the scope of his dispositions his offspring as well as his wife. And this he did: he *gave to his wife the life estate, and to his children and grand-children the remainder.
    
      But, it is said, there are powers conferred upon the life tenant, which are destructive of the remainder. These are: 1. The implied power to spend; 2. The testamentary-power to dispose of the property.
    The enquiry is, Was it intended by this testator to confer such powers? for the intention is the life and soul of the will; and, where it violates no rule of law, must govern with absolute sway. Carr, J., 5 Beigh 222. To ascertain this intention, the surrounding circumstances are to be looked to as well as the will itself.
    This testator left a wife and issue — the wife old and infirm. He left an estate of great amount, and producing a large income. This income exceeded his wife’s wants. To leave her to digest a scheme for the disposition of this large estate, would be to impose a burthen upon her unnecessarily, unless some change in the family’s circumstances might be expected to require it; of which there is no intimation. Under these circumstances, Judge May deliberately (returning to it repeatedly) digested his own scheme of disposition. This scheme, embracing alike his wife and issue, was perfected in the minutest detail; and left by him to have effect as his will. He did not leave it as a chart merely, to guide his wife in her dispositions — as words of request or of trust — but as his own complete and deliberate will, towards his children and children’s children, as well as his “beloved and excellent wife. ”
    An ignorant testator, inops consilii, might defeat his scheme of disposition by repugnant provisions. But the testator was learned in the law; knew the legal effect of the words he used. In Judge May’s will we would not expect to find such re-pugnancy ; to find the detailed and carefully digested provisions for his own descendants rendered utterly nugatory by grants to his wife incompatible with the estate limited to them. *And the greater the success in showing that the powers claimed to be granted to Mrs. May amount to the full property, the stronger is the argument resulting, that they were not granted.
    That the powers granted do not amount to property, even though they be considered to extend to the whole estate, and not to the life estate merely, I refer the court to Tomlinson v. Dighton, 1 Pr. Wms. R. 149; Reith v. Seymour, 4 Russ. R. 263; Jackson v. Robins, 16 John. R. 537, 538; Caleb v. Field, 9 Dana’s Ken. R. 346; Burwell’s ex’ors v. Anderson, 3 Beigh 348, 357. But, with the tendency of the courts to aid defective executions of powers, illustrated in Irwin v. Farrar, Barford v. Street, and other cases cited in Burwell’s ex’ors v. Anderson, 3 Beigh 348, 357, it is of less importance to consider the question, whether the powers given in this will be mere powers, or amount to property, since Mrs. May’s answer claiming the property.
    It is argued here, as it was argued in Madden v. Madden’s ex’or, 2 Beigh 377, that the testator “meant to give to Mrs. May the absolute power of disposal of the property; and that this converts the estate for life into an absolute estate, and destroys the intention to give it for life.” But the court, in that case, did not suffer a doubtful phrase to defeat the will of the testator; and it ought not to suffer it here. Effect should be given to the entire will — every part of it — as well that in which children are provided for as that which provides for the widow. We should so construe the will “as to the devisor’s intention, by giving effect to all the words used by him. ’ ’ Coleridge, J., Doe dem Herbert v. Thomas, 3 Ad. & Ell. R. 123, 30 Eng. C. B- R. 48. 1 ‘No word is to be rejected which can have any construction.” 2 Prest. Est. 102 m. No effort to explain the words in a different sense can do so much violence to the clause as the total rejection of the whole bequest given in express terms over.” Marshall, Ch. J., Smith v. Bell, 6 *Peters IT. S. R. 79. And by Dargan, Ch. J., Flinn v. Davis, 18 Alab. R. 132 (cited in Keyes on Chattels, p. 114, § 146), “If it be doubtful about the first taker’s power to dispose, this doubt should not defeat the remainder over.” Even the dissenting judge in Madden v. Madden’s ex’or admitted (see 2 Beigh 386), “the character of the estate first given may, in doubtful cases, influence the construction of the will, as to the extent of the power given. Opinion of Green, J.
    We should not, then, struggle against the estate in remainder; but should so read the words of power annexed to the life estate as to preserve the remainder, if possible, to carry out the intention. “Such a sense, if possible, ought to be put upon a will as is agreeable to the intention of the party and consistent with the rules of law.” By Sir Joseph Jekyl, in Upwell v. Halsey, 10 Mod. R. 441. For “the estate being the testator’s to give, his will is the law of the subject, unless that will be against the law of the land.” By Tucker, P., in Burwell’s ex’ors v. Anderson, 3 Beigh 348, 356. And unless what the testator gave Mrs. May amounts to the absolute property, there is no law of the land to forbid the gift of a remainder to children.
    The express estate given to Mrs. May is for life only; and “the express estate for life negatives the intention to give the absolute property.” Tucker, P., S. C. p. 357. And shall the words of the will, confining Mrs. May to a life estate, and the words granting the estate in remainder to the children, both, be rejected? If words are to be rejected, is it not better to reject the words giving the powers than reject the words limiting the estates? Certainly, as was said bj7 Chief Justice Marshall, “no effort to explain the words in a different sense can do so much violence to the clause as the total rejection of the whole bequest given in express terms” to the children and grandchildren. Would it do so much violence to this will, to construe *the words of power to Mrs. May to relate to the life estate, as to allow them to overrule the words limiting' both estates: enlarging one over the express estate granted, and defeating the other entirely. Such words of power were so limited in the construction in the before cited cases of Madden v. Madden’s ex’or, and Smith v. Bell; and they were understood to be confined to the first taker’s estate; authorizing the first taker to sell, convert, &c., the estate; but no more.
    The manner in which the clause granting the powers is introduced, indicates that they are intended to qualify the already granted estate, rather . than to confer a new and larger estate: thus “to have (luring her life, but with full power to make sale,” &c. And the grants “to make sale,” “to convey absolute titles,” “to use the purchase money for investment,” neither imply the fee (for the appointee takes under the original deed, 2 Sugd. Powers 26-7 m), in the subject sold, nor the property in the price. They are but ■a cautious expression of the mere power of conversion, and an implied negation of property; for expressio unius exclusio al-terius.
    It would not be • expected that the next words would convey absolute power; presenting a striking contrast, not only with the life estate, but also with the cautious expressions of power, just used. The power “to use the proceeds for any purpose she pleased, ’ ’ could not be given that she might herself enjoy them: she did not want them; the income exceeded the wants of this old lady. And, if this power had been intended to enable her to give away the whole estate, why was she forced to convert it by selling before she could give? To require a lady of her age to bring so large an estate into market, would be an inconvenient restriction on the jus disponendi, if intended to be granted, and might damage the estate. It might not be judicious to sell it to convert it into the state to be given away. *Bike the power to invest, it was designed for the improvement’ of the estate; while it exonerated her from accountability; as. in Bradley v. Westcott, 13 Ves. R. 444.
    It is argued that these words import an absolute power of disposition. These words are “to use;” and though for any purpose, it is still to use: And the use of money is not the gift of it. Green, J., in Madden v. Madden’s ex’or, 2 Beigh 377, 389; Dunbar’s ex’ors v. Woodcock’s ex’or, 10 Beigh 628; Keesee v. Sharpe, decided by the special court of Appeals; 1 Jarm. Wills 793 note (1st Amer. edi. by Perkins). It means such use as is consistent with the life estate; as in Smith v. Bell, 6 Peters U. S. R. 68. On the other side the following cases were cited to maintain a different view, viz: Elton v. Sheppard, 1 Bro. Ch. R. 532; Hales v. Margerum, 3 Ves. R. 299; Hixon v. Oliver, 13 Ves. R. 108; Robinson v. Dusgate, 2 Vern R. 181; Maskelyne v. Maskelyne, Amb. 750 ; R. Tomlinson v. Dighton, 1 P. Wms. R. 149. But in these cases there is a general bequest, with express power to dispose. They decide nothing as to the effect of such words, in such a connexion as in this will. 1 Sugd. Powers 125-6; 1 Roper Beg. 429-30 (1 Amer. 3 Bondon edi.). And I refer to Keyes on Chattels, s. 154, as to the case of Green v. Harvey; Grey v. Montagu; Bradley v. Westcott; Ross v. Ross; and Cuthbert v. Purrier. Por the effect of such words, see 2 Preston Est. 74, 75 c. m. ; but that “the general power of - disposition, without an express limitation of estate, is their distinguishing feature; and that express words would qualify or restrict the estate, ’ ’ see Id. 80 m, 85 m; Keyes Chattels, p. 131, s. 167; Reith v. Seymour, 4 Russ. R. 263.
    The law does not incline to enlarge express estates by implication. 1 Sugd. Powers 124 m. And if this was a power to dispose, rather than use, it would be restricted by the context to Mrs. May’s lifetime. Madden *v. Madden’s ex’or, supra; Smith v. Bell, 6 Peters U. S. R. 68; Keyes Chattels, s. 262. In Smith v. Bell, the gift being of personalty, was absolute ; and the absolute interest was cut down by implication ; and this construction prevailed. Ch. J. Marshall reviewed the authorities; and, as to Upwell v. Halsey, it is sustained by Cooper v. Williams, Prec. ch. 71; Surman v. Surman, 5 Madd. R. 123; Stevens v. Winship, 1 Pick. R. 318; Barned v. Bridge, 17 Id. 339. And see also Bradley v. Westcott, 13 Ves. R. 444.
    In support of the argument ■ that the express' grants of power do not give Mrs. May power over the estate beyond her life, I refer to 1 Jarm. Wills 321; Keyes Chattels, s. 75, p. 56, s. 78, p. 59, s. 147, p. 115; Bomax Dig. 117 marg. 193 top; Kinnard v. Kinnard, 5 Watts Pa. R. 100, 110; Dunbar’s ex’ors v. Woodcock’s ex’ors, 10 Beigh 628. And that it is even so where the estate is cut down to a life estate; see Constable v. Bull, 15 Eng. B. & Eq. R. 424; Duhomel v. Ardovin, 2 Ves. Sen. R. 162; and whether the life estate be express or implied ; Constable v. Bull, supra; Gibbs v. Tait, 8 Sim. R. 132; Upwell v. Halsey, 1 P. Wms. R. 651, 10 Mod. R. 441; Keyes Chattels, s. 74; Smith v. Bell, 6 Peters U. S. R. 68, 74: and equally if on a contingency the first taker was allowed to diminish the capital; as for support. Cooper v. Wrilliams; Sur-man v. Surman; Stevens v. Winship; Barned v. Bridge, supra; Upwell v. Halsey, 10 Mod. R. 441; Smith v. Bell, 6 Peters U. S. R. 68, 83. That no gift is void for uncertainty ; but that the uncertainty may be removed by an account; see Keyes Chattels, s. 73-78.
    In this case the express powers are followed by the clause, ‘ ‘with only this restriction, that whatever remains at her death shall, after paying any debts that she may owe, or any legacies that she may leave, be divided as follows, viz.,” &c. And because the remainder only, after paying her debts and legacies, is *limited over, it is said Mrs. May has the power to dispose, by will, of the whole estate.
    But at most she can dispose only of so much as would fall under the denomination of legacies. This testator knew the difference between legacies and devises; and if it be said the testator intended to enable her to make devises, too, the answer is, this is not a case to be helped out by in-tendment; that we should struggle rather to save the remainder, than to enlarge the first estate. And because power to convert realty into personalty, so as to draw the entire estate within the vortex of her power, is given to Mrs. May, it does not follow that she has the devising power. The testator might confide in her discretion in converting the property; that she would not injure the estate, but improve it. This does not imply that he would leave his scheme of disposition of his realty to be disturbed.
    The cases of Comber v. Graham, 4 Cond. Eng. Ch. R. S10, and Doe dem Herbert v. Thomas, 30 Eng. C. E. R- 48, cited on the other side, do not oppose this view. In these cases the first gift was clear, and of the absolute estate ; and if the subsequent words mentioned some of the incidents of the estate, it was not thereby abridged. But here it is not enough that the subsequent words do not abridge the estate ; they must help it out; for the estate is limited to Mrs. May for life in express terms.
    Then, is this a grant of power? In terms this clause is a restrictive clause. Is not the grant or reservation, as to debts and legacies, simply and clearly an exemption from the restriction about to be thrown on the life estate already granted. A life estate had been granted, subject to provisos. The words .of the grant were, “I give to my wife, subject to the provisions hereafter declared. ’ ’ These provisions were about to be declared, to wit, that at her *death what remained of it should go over. But this restriction is qualified by allowing her debts to be paid, and legacies to be given by her, out of the life estate left, before any of it goes over. The testator intended to do no more than dedicate to her debts and legacies the large revenues of the life estate, ample enough to afford handsome legacies, and leave a surplus. This construction avoids the objection of making of a restrictive clause an enlarging clause, whilst it suits the language and arrangement of the provision.
    If it had been intended to give the general disposing power, proper words would have been used by this learned 'testator; and if so important a power had been intended, a distinct grant of it would be expected of him.
    This view is aided by the testamentary paper of 1840, the admission of which to probate is contested. The express grant by it to Mrs. May, of a limited power to make settlements, is fatal to her claim of the absolute estate. And why should not that paper be admitted to probate? The counsel then discussed that question; but the court refused to admit the paper to probate, and the argument need not be reported. He then proceeded.
    The powers granted to Mrs. May, then, are powers over the life estate.
    So far attention has been confined to the will, but the second codicil does not conflict with the view presented. What was done by it is no more than was done in Devaux v. Barnwell’s ex’or, 1 Dess. R. 497; Doe dem Stevenson v. Glover, SO Eng. C. E. R. 447, and Gibbs v. Tait, 8 Sim. R. 132.
    In Huskisson v. Bridge, 3 Eng. E. & Eq. R. 180-183, Knight Bruce, speaking of all the will except the last paragraph, said, “If no more had been done, he would not have known when or how to decide it.” And yet with the last clause omitted, that will was stronger by *far, for the first taker, than the will of Judge May for Mrs. May. With the express life estate given to Mrs. May, the main case is unlike Shermer v. Shermer’s ex’ors, 1 Wash. 266; Burwell’s ex’ors v. Anderson, 3 Eeigh 348; Keesee v. Sharpe; White v. White, (the last two decided in the special Court of Appeals) ; Melson v. Cooper, 4 Eeigh 408, and Riddick v. Cohoon, 4 Rand. S47. In the last three the first estate was absolute; and in White v. White and Riddick v. Cohoon the limitations over were bad for remoteness. In Shermer v. Shermer’s ex’ors, Burwell’s ex’ors v. Anderson, and Keesee v. Sharpe, the life estates were either separated from the estates over which the powers were given, or a new corpus was created, or both ; in which case it is as if the powers stood unconnected with the life estate; as to which see Morris v. Phaler, 1 Watts Pa. R. 389; Reith v. Seymour, 4 Russ. R. 263, and 1 Sugd. Powers 124 m.
    Mrs. May then takes the life estate only, with powers over that, and the estates limited over are good.
    
      
       This case was decided at the January term, 1857, hut was not then directed to he reported. It is now published at the request of some of the judges.
    
    
      
       Wills — Interpretation—Devise for Life with Unlimited Power to Dispose of Fee — Effect on Limitations Over.- The rule laid down in the principal case, that limitations over, after a devise for life with unlimited power in the first taker to dispose of the subject, are void for repugnancy, and the fee vests in the first taker, is known as the doctrine of May v. Joynes, and has been cited and approved in many subsequent cases.
      See Sprinkle v. Hayworth, 26 Gratt. 400; Missionary Society v. Calvert, 82 Gratt. 364; Haymond v. Jones 33 Gratt. 335, 337; Carr v. Effinger, 78 Va. 206, 207; Cole v. Cole, 79 Va. 258; Farish v. Wayman, 91 Va. 435, 21 S. E. Rep. 810; Davis v. Heppert, 96 Va. 776, 32 S. E. Rep. 467; Milhollen v. Rice, 13 W. Va. 520; Wilmoth v. Wilmoth,34 W. Va. 431,12 S. E. Rep. 732; Watson v. Conrad, 38 W. Va. 545, 18 S. E. Rep. 747; Bank of Berkeley Springs v. Green, 45 W. Va. 176, 31 S. E. Rep. 263. See also, as following the doctrine of May v. Joynes, Hall v. Palmer, 87 Va. 354, 12 S.E. Rep. 618; Bowen v. Bowen, 87 Va. 438, 12 S. E. Rep. 885; Robertson v. Hardy (Va.), 23 S. E. Rep. 766.
      See in accord, in Madden v. Madden, 2 Leigh 377, opinion of Green, J., atp. 390; Nixon v. Rose, 12 Gratt. 425; Burwell v. Anderson, 3 Leigh 356, 357, and footnote to Missionary Society v. Calvert, 32 Gratt. 357, where there is a collection of authorities in point.
      The principal case was distinguished in Randolph v. Wright, 81 Va. 616; Johns v. Johns, 86 Va. 335, 336, 10 S. E. Rep. 2; Miller v. Potterfield, 86 Va. 877, 11 S. E. Rep. 486; Smythe v. Smythe, 90 Va. 640, 19 S. E. Rep. 175; Cresap v. Cresap, 34 W. Va. 323, 12 S. E. Rep. 531; Lee v. Law (Va.), 19 S. E. Rep. 258; in each of which cases, the limitations over were held valid.
      In Randolph v. Wright, 81 Va. 608, the court, atp. 616, said: “That case (May v. Joynes) was decided in 1857, and not ordered to be reported by the judges who decided it; perhaps regarded by them as authority only for itself and it w'as not reported until 14 years after, when, as the reporter states, it was reported at the request of some of the judges — one of the judges of this court, at that time, being a party to the cause. But whatever may be its authority, it is easily distinguished from this case by the learned council for the plain tiff in error.”
      In Johns v. Johns, 86 Va. 333, 10 S. E. Rep. 2, the will read: “I will and desire that my wife, Rebecca, shall have and hold all my estate during her natural life, for the benefit of herself and children, to be used as she may think proper.” The testator left, surviving him, his wife and eight children. He left no real estate but a small personal estate. The court held that the wife took a life estate, with remainder to her children free from her debt. The court, at p. 336, said: “In the case of Randolph v. Wright, 81 Va., Judge Lacy says that the case of May v. Joynes, is authority for itself alone, and commenting upon the cases of Riddick v. Cohoon, 4 Rand. 547; Burwell v. Anderson, 3 Leigh 348; Melson v. Cooper, 4 Leigh 408; Brown v. George, 6 Gratt. 424; Cole v. Cole, 79 Va. 251; Carr v. Effinger,78 Va. 197, he shows that in all these cases, either expressly or by necessary implication,- authority was conferred •on the first taker of the estate to consume it or dispose of it absolutely; but in the case under consideration, the words, 'to be used as she may think ■proper,’ are only apt and proper words to describe the use of the life estate given to Mrs. Johns by the ■clause of which they are a part.”
      In Farish v. Wayman, 91 Va. 430, 21 S. E. Rep. 810, the devise was to W. and J. in trust for A. during her natural life; should A. die and leave no child, in that case the property devised, or what may remain of the same, to go to N. The court, following the doctrine of May v. Joynes, held, that the words, “What may remain of the same,” showed the intention of the testator to give A. the unrestrained power of disposition of the whole property converting her life estate into a fee, and that the limitation over was void. Judge Burks, criticising this case in 1 Va. L. R. 219, 220, says: “If the property had been both real and personal, or personal only, it might have been contended with some force, that by ‘what may remain of the same’ was intended only of such of the personal property as did not perish from natural causes. But such intention could not reasonably be predicated of property wholly real— •of land. To give land for life, and, at the death of the tenant, to' give ‘what may remain of the same’ to another, would seem to imply of necessity that the first taker shall have the power to dispose of the absolute estate or interest in the land; otherwise, the words ‘or what may remain of the same’ would be meaningless.
      “Butit would seem tobe essential to this view that .these words should be predicated of the estate of the first taker from its inception, and throughout, without contingency. For instance, if the devise of the land in this case had been to or for the benefit of Agnes Priscilla Redd during her life, and of ‘what may remain of the same’at her death, to Nancy J. Massie, the devise would have vested the fee-simple ■estate in Agnes Priscilla Redd. The limitation over would have been void both for repugnancy to the estate previously granted and for uncertainty.
      “But was the devise in this case of that character? with great deference, we submit, that it is not so clear as not to admit of doubt, at least. The property is devised in express terms to Agnes Priscilla Redd during her natural life. It is only upon her death without a child that the property devised to her, ‘or whatmayremain of thesame’ at her death, is to go to Nancy J. Massie. But suppose Agnes Priscilla Redd dies leaving a child or children surviving her: would they not be entitled under the will to the property devised to her for life? Does not the testator, by implication, devise the remainder to them? Such we understand to be the rule of construction laid down in Wine v. Markwood, 31 Gratt. 43. If this rule be applied, the clause of the will written out so as to express fully the testator’s intention would, in substance, be this: T give to Agnes Priscilla Redd one-fifth share of my real estate during her life. If she die leaving a child or children surviving her, then, at her death, I give that share to such surviving child or children. If she die leaving no child surviving her, “in that case” I give said share, “or what may remain of the same,” to my sister Nancy J. Massie.’ Should not the words ‘or what may renjain of the same’ be confined in their operation to the event of the death of Agnes Priscilla Redd without a child surviving her, and in that event and that only — ‘in that case,’ as expressed in the will — the life-estate be construed as enlarged into afee-simple? See 2Minor’s Inst. (4thEd.) 454, 462.
      “This construction, suggested with diffidence, while it would defeat the ultimate limitation over to Nancy J. Massie, would at the same time secure the corpus of the estate to the children of Agnes Priscilla Redd (now Mrs. Farish) who may survive her, which would seem to have been the testator’s intention.”
      As said by Judge Burks in the above-mentioned article, the question, whether, in the particular will to be construed, the testator intended to give the first devisee or legatee a life estate only, with a limitation over to another, or to give him an absolute estate is wholly a matter of intention. But where, an estate for life is given in expressed terms, the language in other parts of the will relied on to enlarge that into an absolute estate ought to be very clear indeed to have that effect. See also, article 3, Va. L. R. 65.
      
        Note by the Reporter. — Another paper was propounded for probate by Anna M. Joynes and others, by their next friend, as another codicil to the will of John F. May, which was rejected; and an appeal was taken, and the case was heard at the same time with this; but the judgment of the court was affirmed. The paper was as follows: “I empower my wife, by deed or will, to settle any portion of my estate upon my daughters or their issue, or both, in any manner she may deem proper, so that there may be some safe provision for their comfort beyond the casualties of life, to which all are subject; and yeti know of no men less liable to them, in my opinion, than my sons-in-law.
      John F. May.
      “July 2?, 1840.”
      On the back of this paper was an endorsement, which had the appearance of being written in different ink from the inside of the paper; and was as follows: “Another codicil to my will, probably unnecessary, but showing a strong motive of action in my testamentary action.
      John F. May.”
    
   AEEEN, P.,

delivered the opinion of the court.

This day came the parties, by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the Circuit court erred in holding that Margaret B. May is not entitled to a fee simple in the real estate, and an absolute property in the personal estate, of her late husband, John F. May, deceased, under his last will and testament, as claimed by her in her answer; but that she is entitled to the same, except the part embraced by the second codicil, for life only, with remainder to the children and grand-children of the testator. The court then reversed the decree of the Circuit court, with costs, and proceeded: “And this court, proceeding to pronounce *such decree as the said Circuit court ought to have pronounced, doth declare that, by the last will and testament of John E. May, the said Margaret B. May is entitled to a fee simple in the real estate, and an absolute property in the personal estate, of her late husband, the said John E. May, deceased, under his last will and testament, as claimed by her in. her answer; and that the limitation over of whatever remains at her death is inconsistent with, and repugnant to, such fee simple and absolute property in said real and personal estate, and fails for uncertainty; and doth adjudge and decree that such are the rights of said Margaret B. May under said will; and that no interest vested in the other parties by the limitation over in said will.” The court proceeded, therefore, to dismiss the bill with costs.

SAMUBBS, J., dissented.

Decree reversed.  