
    Pillow, Ex’r. vs. Rye and Wife et al.
    
    Will. Construction of. The testatrix in her will declared her ct intention to provide for the personal comfort and independence of her daughter, Martha W. Keeble, during her natural life.’* After setting apart certain property to this end, the will proceeds: “But it is my will and intention that all the property, real and personal, and all the money herein set apart to her, the said Martha W., shall be for her sole and separate use during her natural lile, free from any debts or charges of any iuture husband she'umay have. My object is to make a provision for her and not to postpone her interests to .those of my remote descendants; and if for any cause it becomes necessary for her ease and comfort to use any portion of the principal of the property and money herein set apart for her, it is my wish that it should be done. It is my wish that she should have the' full use and enjoyment of all this property and money during her natural life; and if she marries again, and has other children, or dies, leaving those only she now has, in either event it is my will that the property and money or the part remaining after providing for her in the manner herein declared, shall go to her children, or their descendants, according to the statute of descents and distribution of Tennessee.” Held, that under this clause of the will, Mrs. Keeble took only a life estate with a limited power of disposal upon the happening of the contingency referred to.
    This was a bill filed in the chancery court at Columbia, by Pillow, Ex’r. of the last will and testament of Martha Cook, for the purpose, among other things, of having a judicial construction of so much of the will of the said Martha as is quoted in the opinion. On the hearing of the cause at the October term, 1851, Chancellor Frierson decreed that an absolute separate estate in the property bequeathed, vested in Mrs. Keeble. From which decree there was an appeal.
    Nicholson, for complainant.
    The intention of the testatrix is expressed in clear and unambiguous language. “It is my intention to provide for the comfort and independence of my daughter, Martha W. Keeble, during her natural life,” &c. After specifying the property and money which are given to secure her “ personal comfort and independence,” she proceeds: “But it is my will and intention that said property and money shall be for her sole and separate use during her natural life, free from any debts and charges of any future husband she may have.” To place the personal comfort and independence of her daughter beyond doubt, she goes on to say : “My object is to make a provision for her and not to postpone her interests to those of my remoter descendants, and if for any cause it becomes necessary for her ease and comfort to use any portion of the principal, it is my wish that it should be done.”
    The question presented upon this item in the will, is, Does Martha W. take an absolute estate in the property set apart for her, or does she take only an estate for life, with remainder to her children ?
    If the intention of the testatrix is to prevail, it is perfectly manifest that Martha W. takes only a life estate, with power to break in upon the principal to the extent that the same may be “ necessary for her ease and comfort,” and that her children are interested in the corpus of the property. But it is insisted for Martha W. that this right to break in upon the principal when that becomes necessary for her ease and comfort, is tantamount to an absolute power of disposing- of the property, and, therefore, that her estate in the property is absolute, and her children have no interest therein, notwithstanding the intention of the testatrix.
    The rule is well settled, that an executory interest, though intended by the testator, cannot be limited in a thing which is already absolutely given, or over which an absolute power of disposal is given; 3 Humph. 635; 2 Yerg. 559; 10 Yerg. 292; Mart. & Yerg. 302 ; 5 Humph. 505 ; 10 John. R. 21; 16 John. R. 571. The principle settled in these cases, is that an absolute power of disposal vested in the first taker, is inconsistent with and destructive of an interest limited to the remainder man. In this case, is there an absolute power of disposal vested in Mrs. Martha W. Keeble? The language of the will is, “if for any cause it becomes necessary for her ease and comfort that any portion of the principal should be used, it is my wish that it should be done.” The contingency on which any portion of the principal may be used, is, upon its becoming necessary for her ease and comfort — and when such contingency arises, only so much of the principal as may thus be necessary shall be used — this is the plain meaning of the will. But who is to judge when the contingency has arisen? A given state of facts must exist before the princidal can be touched — it must appear that the rents and profits have failed to secure her ease and comfort. Is she made the judge as to the existence of such state of facts, and as to what may be necessary for her ease and comfort ? The will does not say that if from any cause she considers it necessary for her ease and comfort to use any portion of the principal she may do so. Such language would have vested her with a discretion as to what might be necessary for her ease and comfort, aud with a power to dispose of the principal to meet such necessity. But the testatrix was careful not to use such language, and to give such a construction to the language used, is destructvie of her manifest intention. She was careful to place the property beyond the reach of her husband, with the view of making it a continuing provision for her comfort and independence during life. She was equally careful to place the principal beyond the reach of her daughter, for she nowhere clothes her with any power to use the principal. But if by implication or construction this power is given to her, the solicitude of the testatrix to make a permanent provision for her daughter during life, is defeated.
    The plain import of the language leads to no such result— a state of things is described, upon the happening of which, the principal may be used as far as necessary — but the daughter is not made the judge of the existence of this state of things, nor is she authorized to use any portion of the principal. Whether the state of things described should at any time exist, was left to either the judgment of the executor and testamentary guardian charged with executing the trusts of the will, or to the determination of the proper judicial tribunal. The daughter is so far from being clothed with the power of absolute disposal, that she is clothed with no power at all. A contingent benefit is secured to her, but whether she can ever enjoy it is made to depend upon the fact whether the use of the property will secure her ease and comfort, and that fact is not left to her judgment or discretion or caprice, but to the determination of the trustee or the court.
    S. D. FRIERSON, for~respondents.
    For Rye and wife it is insisted that Mrs. Rye (formerly Mrs. Keeble,) takes an absolute estate in all the property mentioned in this clause.
    The language of this clause gives to Mrs. Rye the unrestricted and unlimited power of disposition; there is no trustee interposed whose consent is to be had, nor is there any restraint on the power and right of disposition, except Mrs. Rye’s own will and pleasure, judging of her own ease and comfort. “A right in the first devisee to dispose of the estate devised at his pleasure, and not a mere power of specifying who may take, amounts to an unqualified gift.” See note 1, Jarman on Wills, Perkins Ed. top page 665, and authorities there referred to. So, when it is clearly the 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 taker. (See same authority.) The intention of the testatrix in this case is manifestly to give to the devisee the absolute right and power of disposition, and that for her own benefit, and not of another; the provision and devise are for her benefit, and she is not to be postponed to those of the testatrix’s remoter descendants.
    When the first taker under a will has the power of spending the property bequeathed, in his lifetime, though the testatrix may have expressed an intention to dispose of what the first taker shall leave unspent at his death, there is obviously no unascertained part upon which a trust can attach, and the first taker has virtually the whole property. 13 Ves. 453> note 1.
    A direct bequest of property is never to be narrowed into a mere power by implication. 13 Ves. 114. And when the absolute property is first given, it is not restrained by a gift over, of what the first taker does not dispose of in his lifetime, or by will. Jacob’s Rep. 416; 2 Swans 157.
    In Deadriclc and others vs. Armour, 10 Humph. 593-94, the court has decided that “a gift for life, with unlimited and unrestricted power of disposition, carries the fee” — that “a limitation to the separate use of a married woman, either indefinitely with a general power of appointment superadded, or else for life only with a similar power, in either instance she takes the entire property in the thing limited.” So, if there be an absolute power of disposition given by the will to the first taker, “ as if an estate be devised to A. in fee, and if he die possessed of the property, &c., the remainder over, or the remainder over of the property which he, dying without heirs, should Leave, or without selling, or devising, in all such cases the remainder over is void as a remainder, because of the fee, and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate or power of disposition expressly given;” 4 Kent Com., 270. This doctrine is also decided in the several cases, Smith T., vs. Bell and Wife, Mar. & Yerg., 302; Davis vs. Bridgeman, 2 Yerg., 557; Davis vs. Richardson, 10 Yerg., 290; Booker vs. Booker, 5 Humph. 513, and are sustained — •Jackson vs. Ball, 10 John. Rep., 20 ; Jackson vs. Robins, 16 John. Rep., 588.
    This case does not come under the rule laid down in the case of Deadriclc vs. Armour, above referred to. The devise in this clause is not one of a power to be executed with the consent of any one, or in any particular manner, nor for any particular person or persons; the power (if so called,) and the right of disposition given by the will is to be exercised at the discretion of the first taker, “ for any cause.”
    It is further insisted that the limitation in this clause is too remote, and therefore void : 9 Yerg., 236; 4 Kent Com. 220.
   McKinney, L,

delivered the opinion of the court.

The question in this cause is in relation to the construction of a part of the will of Martha Cook.

In the ninth clause, the testatrix declares her “ intention to provide for the personal comfort and independence of her daughter, Martha W. Keeble, during her natural life.” The will sets apart, to this end, a tract of land, four slaves, other personal property and money, and then proceeds as follows :

But it is my will and intention, that all the property, real and personal, and all the money herein set apart for her, the said Martha W., shall be for her sole and separate use, during her natural life, free from any debts or charges of any future husband she may have. My object is, to make a provision for her, and not to postpone her interests to those of my remote descendants; and if, for any cause, it becomes necessary for her ease and comfort, to use any portion of the principal of the property and money herein set apart for her, it is my wish, that it should be done. It is my wish that she should have the full use and enjoyment of all this property and money during her natu'ral life; and if she marries again, and has other children, or dies, leaving those only she now has, in either event, it is my will that the property and money, or the part remaining after providing for her in the manner herein declared, shall go to her children, or their descendants according to the statutes of descents and distribution of Tennessee.” Mrs. Keeble has since intermarried with the defendant, Joseph C. Rye; and it is now insisted on her behalf, that, under the foregoing clauses she takes an absolute estate in the property devised.

In the determination of this cause, we have not thought it necessary to enter into an examination of the cases to which we have been referred. Although there may be some discrepancy in the decisions, owing, perhaps to the different force and effect given to particular words and phrases, by different judges, as indicating an intention to confer a general power of disposal upon the first taker, or the contrary; yet, all the authorities agree, that it is a question of intention, and that every case mast depend very much upon its own particular facts.

There can be no question that, although the interest of the first taker be, in terms, limited to an estate for life, yet if there be superadded words, conferring an unlimited power of disposal, it will be considered as equivalent to an absolute gift of the property, because such unlimited power of disposition, is incompatible with the limitation over in remainder.

But it is equally clear, that where the power of disposal is limited, and made to depend upon a contingency, the first taker has no power of disposition till the contingency happens.

In such case, the property can only be disposed of, in execution of the power expressly conferred; and it need scarcely be added, that should the contingency never happen, the power cannot be executed.

The assumption that the clause of the will under consideration confers any such unlimited power of disposal is wholly unfounded. The intention of Mrs. Cook is too obvious to admit of any doubt. Her purpose was to make a comfortable provision for her daughter during life, in every event that might happen. In this view, she appropriated an amount of property, the use or increase of which, unless in the event of some change in the condition of her daughter, or of the pi'op-erty, she manifestly regarded as amply sufficient for that purpose. But yet, foresaw that in possible events, it might turn out to be otherwise, and her daughter’s comfort being the first and chief object of her solicitude, which she intended to secure in every event, and not to make subordinate to the interests of those in remainder; her intention was, thatif, in the future, the use or increase of the property should prove to be insufficient from any cause, to furnish Mrs. Keeble with the provision designed for her, the corpus might be resorted to, so far as necessary to supply the deficiency, but only such in event, and only to the extent the necessity might require.

In the absence of this limited power of disposal, the daughter would have been restricted to the mere use of the property during life ; although by reason of the death of the slaves, or in other contingencies, the income might turn out to be wholly inadequate to supply her with the means of a comfort-, able support.

For such an altered state of things, and against all such contingencies, the testatrix intended to provide; and hence the power was conferred to resort to “ the principal of the' property,” should it become “necessary for her ease and comfort.” But the provision, it must be borne in mind, is merely a qualification of, or exception to, the general restraint upon the power of alienation, which, otherwise would have been absolute ; and it must, therefore, be limited by the purpose for which it was annexed. It is certainly perfectly consistent with the general restriction upon the life owner, and equally consistent with the limitation over, which vests in remainder, subject to be divested as far forth, as upon the happening of the contingency, necessity may demand.

This qualification, or exception so far from conferring an unlimited power of disposal, the more clearly excludes all idea of such intention.

We hold, therefore, that under the foregoing clause of the will, Mrs. Keeble takes only a life estate, with a limited power of disposal, upon the happening of the contingency referred to in the will. See 1, Pick. Rep., 317, 325.

The decree of the Chancellor will be modified in accordance with the view herein expressed.  