Applied in cases in which there was a limitation over in ease the first taker failed to dispose of the land by deed or by will, this being regarded as giving a power to dispose of it in either of such ways.83 It has also, on a like theory, been applied in the case of a limitation over in case the first laker fails to dispose of the land in his lifetime, or which is in effect the same, a limitation over of what remains to the first taker at the time of his death, as not having then been disposed of by him.84 And it has, in at least one case, been applied when the gift over was on condition that the first taker did not dispose of his property by will.85

Brooks, Esq., 32 Am. Law Reg. N. S. 1035; Editorial notes, 16 Harv. Law Rev. 458; 8 Columbia Law Rev. at p. 397, 17 Id. at p. 625; Gibson v. Gibson, 239 Mo. 490, 144 S. W. 770.

82. Howard v. Carusi, 109 U. S. 725, 27 L. Ed. 1089; Park v. Powledge, - Ala. -, 73 So. 483; Wilson v. Wilson, 261 111. 174, 103 N. E. 743; Law v. Douglass, 107 Iowa, 606, 78 N. W. 212; Easton v. Miller (Ky.) 128 S. W. 1091;7n re Banks, Will, 87 Md. 425, 435, 438; Foster v. Smith, 156 Mass. 379, 31 N. E. 291; Galligan v. McDonald, 200 Mass. 299, 86 N. E. 304; Hoxsey v. Hoxsey, 37 N. J. Eq. 21; Van Horne v. Campbell, 100 N. Y. 287, 53 Am. Rep. 166, 3 N. E. 316; Fisher v. Wister, 154

Sec. 167]

Rights of Future Possession.

That the doctrine referred to is not based on any considerations of public policy, appears from the fact that

Pa. St. 65, 25 Atl. 1009; Behrens v. Baumann, 66 W. Va. 56, 66 S. E. 5; Hunter v. Hicks 100 Va. 615, 64 S. E. 988.

This doctrine appears not to have been applied when the power was qualified or limited in character. Healy v. Eastlake, 152 111. 424, 39 N. E. 360; Defrees v. Brydon, 275 111. 530, 114 N. E. 336; Stuart v. Walker, 72 Me. 145, 39 Am. Rep. 311; Eaton v. Straw, 18 N. H. 320; Terry v. Wiggins, 47 N. Y. 512; Smith v. Van Ostrand, 64 N. Y. 278; Hall v. Robinson, 3 Jones Eq. (56 N. C) 348.

83. Howard v. Carusi, 109 U. S. 725, 27 L. Ed. 1089; Mulvane v. Rude, 146 Ind. 476. 45 N. E. 659; Wolfer v. Hemmer, 144 111. 554, 33 N. E. 751; Williams v. Elliott, 246 111. 548, 138 Am. St. Rep. 254, 92 N. E. 960; McNutt v. McComb, 61 Kan. 25, 58 Pac. 965; Combs v. Combs, 67 Md. 11, 1 Am. St. Rep. 359, 8 Atl. 757; Foster v. Smith, 156 Mass. 379, 31 N. E. 291.

84. Gray, Restraints on Alienation, Sec. 56a; Williams v. Green, 246 111. 548, 92 N. E. 960; Outland v. Bowen, 115 Ind. 150, 7 Am. St. Rep., 420, 17 N. E. 281; Bills v. Bills, 80 Iowa, 269, 8 L. R. A. 696, 20 Am. St. Rep. 418, 45 N. W. 748; Becker v. Roth, 132 Ky. 429, 115 S. W. 761; Easton v. Miller (Ky.) 128 S. W. 1091; Morill v. Morill, 116 Me. 154, 100 Atl. 756; Joslin v. Rhoades, 150 Mass. 301, 23 N. E. 42; Bennett v. Ass'n, to Provide and Maintain a Home for the Friendless, 79 N. J. Eq. 76, 81 Atl. 1098; Van Home v. Campbell, 100 N. Y. 287, 53 Am. Rep. 166, 3 N. E. 316; Newland v. New-land, 46 N. C. 463; Karker's Appeal, 60 Pa. St. 141; Hall v. Palmer, 87 Va. 354, 24 Am. St. Rep. 653, 11 L. R. A. 610; Rolley v. Rol-ley, 109 Va. 449, 63 S. E. 988, 21 L. R. A. N. S. 64.

85. Fisher v. Wister, 154 Pa. St. 65, 25 Atl. 1009; Crutchfield v. Greer, 113 Va. 232, 74 S. E. 166 (semble).

It is to be observed that in the cases in which the doctrine referred to has been applied, the limitation over has been almost invariably a Imitation over on the death' of the first taker, with or without the mention of any other contingency. When the limitation is to take effect upon the death of the first taker, and no other contingency is mentioned in the limitation, the devise over is simply a direction that the property, which has been given to the first taker in fee simple, shall pass to a particular person upon his death, a direction which obviously cannot affect the devolution of the estate in fee simple. Such a limitation over on the death of A, without the mention of any other conBut that a limitation over on death intestate without leaving issue is valid, see Freedman v. Steiner, 107 111. 125; Randolph v. Wright 81 Va. 608.

That a devise over on death without having disposed of the property by deed or will, is invalid, see Middleton v. Dudding, (Mo.) 183 S. W. 443.

86. Gray, Restraints on Alienation, Sec.Sec. 74d, 74e; State v. Smith 52

Conn. 557; Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659; Steiff v. Sei-bert, 128 Iowa, 746, 6 L. R. A. (N. S.) 1186, 105 N. W. 328; Angel v. Wood, 153 Ky. 195, 154 S. W. 1103; Hall v. Otis, 71 Me. 326; Kent v. Morrison, 153 Mass. 137, 10 L. R. A. 756, 25 Am. St. Rep. 616, 26 N. E. 427; Armor v. Frey, 226 Mo. 646, 126 S. W. 483; Burleigh v. Clough, 52 N. H. 267.

87-88. Ante Sec. 32, note 36.

89. Ante Sec. 32, note 37.

90. Lambe v. Drayton, 182 111. 110, 55 N. E. 189; Meyer v. Weiler, 121 Iowa, 151; Becker v. Roth, 132 Ky. 429; Snodgrass v. Brandenburg, 164 Ind. 59, 71 N. E. 137, 72 N. E. 1030; Bradley v. Warren, 104 Me. 423, 72 Atl. 173; Foster v. Smith, 156 Mass. 379, 31 N. E. 291; Merrill v. Webster, 187 Mass. 562, 73 N. E. 672; Bassett v. Nickerson, 184 Mass. 169, 68 N. E. 25; Moran v. Moran, 143 Mich. 322, 5 L. R. A. (N. S.) 323, 114 Am. St. Rep. 648, 106 N. W. 206; Campbell v. Beaumont, 91 N. Y. 464; Tuerk v. Schueler, 71 N. J. L. 331, 60 Atl. 357; Foster v. Lee 150 N. C. 688, the validity of the limitation over upon marriage. There are occasional decisions to the effect that the limitation over is in such case invalid,96 but, as in the case of a limitation over on death without issue, with a power of disposition in the first taker, the soundness of such a view would seem to be open to question.

Is ordinarily perfectly valid. Although it may operate to divest the fee simple upon his death it is not repugnant to such estate. Such being the case, it is somewhat difficult to see how any repugnancy can be created in such case by the fact that the first taker is given a power of disposition. He still has a fee simple estate, the same estate which he would have had without the power. Nevertheless, there are a number of decisions to the effect that a limitation over, upon the death of first taker without leaving children or issue, of such part of the property as he has not disposed of during his life, is invalid,94 and at least some of these are based on the theory that there is in such case a power of disposition with which the limitation over is in some way inconsistent, without any explanation of wherein the inconsistency lies. In so far as the gift of the power is inferred from a limitation over of what has not been disposed of by the tenant during his life, it appears particularly singular that while a limitation over on death without leaving issue is valid, if in terms applicable to all the property, such a limitation is invalid if applicable only to property which has not been disposed of previous to death.95