This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
64 S. E. 761; Bowlby v. Thunder, 105 Pa. 173; Johnson v. Johnson, 48 S. C. 408, 26 S. E. 722.
91. Ide v. Ide, 5 Mass. 500; Law v. Douglass, 107 Iowa, 606. 78 N. W. 212; Wilson v. Turner, 164 111. 398, 45 N. E. 820; Loosing v. Loosing, 85 Neb. 66, 25 L. R. A. (N. S.) 920, 122 N. W. 707: Roth v. Rauschenbusch, 173 Me 582, 61 L. R. A. 455, 73 S. W. 664: McNutt v. McComb, 61 Kan. 25. 58 Pac. 965; Fisher v. Wister, 154 Pa. 65, 25 Atl. 1009; Rolley v. Rol ley's Ex'x, 109 Va. 449. 21 L. R. A (N. S.) 64, 63 S. E. 988; Stowell v. Hastings, 59 Vt. 494, 59 Am Rep. 748, 8 Atl. 738.
[Sec. 167 qualified or determinable fee, while if he has a power of disposition by which the limitation over can be defeated he has a fee simple, and that a limitation over on a fee simple is invalid, is, it is conceived, absolutely erroneous. What would otherwise be a fee simple estate is not a qualified or determinable fee merely because there is a limitation over,92 and even were it otherwise a qualified or determinable fee by reason of the limitation over, it would not, it is conceived, be an estate in fee simple merely because the donee thereof is given a power to dispose of the land in fee simple.
In so far as the limitation over on the death of the first taker, without mention of any other contingency, may be regarded as invalid on the ground favored by Chancellor Kent, that a power of disposition given to the first taker, by the exercise of which the limitation over may be defeated, is so inconsistent with such a limitation as to render it invalid, it may be remarked that the general rule that an executory limitation cannot be defeated by the act of the tenant of an estate previously created by the same instrument,93 refers to an act by him based on his ownership of such estate. It no more means that the gift to him of a power by which he can destroy the limitation invalidates the limitation than would the statement that a particular tenant cannot destroy a vested remainder mean that the remainder is invalid if the particular tenant is given a power by the exercise of which he can destroy the remainder.
While there is a necessary repugnancy between the gift of a fee simple estate to one and a limitation over upon his death in favor of another, without mention of any other contingency, there is no such repugnancy when another contingency is mentioned. That is, a limitation over in defeasance of a fee simple upon the first taker's death under some particular state of facts, as for instance his death leaving no issue or children then living,
92. Ante Sec. 163(b), notes 35-40.
93. Ante, this section, note 71.
Occasionally, after a gift in fee simple to testator's widow, a limitation over is in terms to take effect upon her marriage, as well as upon her death, and the question may arise whether the fact that there is a power of disposition expressly given to her, or that the limitation over is in terms of what she has not disposed of, affects of the latter character might also perhaps be regarded as invalid as depriving the first taker of the right to enjoy the land without alienating it during his life,2 a right which would seem to be incident to an estate in fee simple to the same extent as the right of alienation.
94. Park v. Powledge (Ala.) 73 So. 483; Channell v. Aldinger, 121 Iowa, 297, 96 N. W. 781; Tar-bell v. Smith, 125 Iowa, 388, 101 N. W. 118; Cralle v. Jackson, 26 Ky. L. Rep. 417, 81 S. W. 669; Ide v. Ide, 5 Mass. 499; Spence v. Scovil, 70 Neb. 87, 96 N. W. 1016; Jackson v. Bull, 10 Johns. (N. Y.) 19, 98 N. W. 843; Armstrong v.
Kent, 6 N. J. Eq. 559, 21 N. J. L. 509; Kent v. Armstrong, 6 N. J. Eq. 637; Fisher v. Wister, 154 Pa. 65, 25 Atl. 1009; Hoxie v. Chamberlain, 228 Pa. 31, 76 Atl. 423; Wil-moth v. Wilmoth, 34 W. Va. 426, 12 S. E. 731.
95. See Gray, Restraints on Alienation, Sec. 56c.
In England it appears to be settled that, after a gift in fee simple, a limitation over upon the death intestate of the first taker is invalid, not upon the theory that a power to devise is thereby created, with a resulting repugnancy of the limitation over, but rather upon the theory, apparently, that to give effect to the limitation in such case would deprive the estate in fee simple of its quality of heritability.97 And likewise it has been there decided that a limitation over upon the first taker's death intestate and without issue or children is invalid.98 Moreover, after a gift in fee simple, a limitation over conditioned that the first taker does not dispose of the property in his life time has in England been regarded as invalid as depriving him of the right of alienation by will,99 and a like view has apparently been adopted in one state.1 A limitation that age.6 But if there is no intermediate disposition of the property in such case, that is, no prior estate created, the presumption in favor of vesting cannot apply.7
96. Becker v. Roth, 132 Ky. 429, 115 S. W. 761; Little v. Giles, 25 Neb. 313, 41 N. W. 186.
97. Holmes v. Godson, 8 De G., M. & G. 152; Barton v. Barton, 3 Kay & J., 512; Wilcocks Settlement, 1 Ch. D. 229; In re Han-bury (1904) 1 ch. 415. But a devise over on the death of the first taker in case he fails to devise to one of a class of persons named has been regarded as valid. Com-iskey v. Bowring Hanbury (1905) App. Cas. 84. This latter decision is criticized by Mr. Edward Jenks in an article in 33 Law Quart. Rev. at p. 12, and supported by Mr. Charles Sweet, in 33 Id. at pp. 253, 361.
98. In re Dixon (1903) 2 Ch. 458. In re Crutchley (1912) 2 Ch. 335.
99. 2 Jarman, Wills, (5th ed.) 856. Theobald, Wills, 16th ed.; 15 Halsbury's Laws of England, 423. It has lately been there held, however, that the limitation over is valid and effective if, owing to the death of the person first named during testator's life, the prior limitation never takes effect. In re Dunstan, Dunstan v. Dunstan (1918) 2 Ch. 304, discussed in editorial note, 17 Mich. Law Rev. 434. See also Gray, Restraints on Alienation, Sec. 64 note.
1. Rea v. Bell, 147 Pa. 118.
In New Jersey a limitation over
Rights of Future Possession.