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 .
An executory limitation cannot, except in one case, be affected by the act of a tenant of an estate previously created by the same instrument, so as to prevent the limitation from creating an estate on the satisfaction of the condition precedent or the ascertainment of the persons to take,71 the rule thus differing from that which applies to a common-law contingent
68. Chesebro v. Palmer, 68 Conn. 207, 36 Atl. 42; Perry v. Bulkley, 82 Conn. 158, 72 Atl. 1014; Caulk v. Caulk, 3 Penn. (Del.) 528; Hertz v. Abrahams, 110 Ga. 707, 50 L. R. A. 361, 36 S. E. 409; Gilkie v. Marsh, 186 Mass. 336, 71 N. E. 703; Chelwood v. Winston, 40 N. J. L. 337; Graham v. Abbott, 208 Pa. 68, 57 Atl. 178; Arnold v. Muhlenberg College, 227 Pa. 321 76 Atl. 30; Holden v. Wells, 18 R. I. 802, 31 Atl. 265. And cases cited ante Sec. 26, note 90.
69. Post Sec. 185.
70. 1 Jarman, Wills, 824; Underhill, Wills, Sec. 846; Pells v. Brown, Cro. Jac. 590; Britton v. Thornton, 112 U. S. 526, 28 L. Ed. S16; Newsome v. Holesapple, 101
Ala. 682 15 So. 644; Myar v. Snow, 49 Ark. 125. 4 S. W. 381; Lawlor v. Holohan, 70 Conn. 84, 38 Atl. 903; Summers v. Smith, 127 111. 645,
21 N. E. 191; Moore v. Gary, 149 Ind. 51, 48 N. E. 630; Weybright v. Powell, 86 Md. 573, 39 Atl. 421; Dorr v. Johnson, 170 Mass. 540, 49 N. E. 919; Mullreed v. Clark, 110 Mich. 229, 68 N. W. 138, 989; Miller's Estate, 145 Pa. St. 561,
22 Atl. 1044; Randall v. Josselyn, 59 Vt. 554, 10 Atl. 577.
71. Challis, Real Prop. 179; Pells v. Brown, Cro. Jac. 590; In re Barber's Settled Estates, 18 Ch. Div. 624; Smith v. Hunter, 23 Ind. 580; Hilleary v. Hilleary's Lessee, 26 Md. 274; Parker v. Parker, 5 remainder.72 In the ease, however, of a limitation in derogation of an estate tail, the power of the tenant in tail to turn his estate into a fee simple by Buffering a common recovery, or, under modern statutes, by a deed in fee simple, enables him to destroy all subsequent limitations.73
In two early cases in this country the doctrine was enunciated that where one is given an absolute interest, a fee simple estate, with a power to convey the land in fee simple, a limitation over in defeasance of the fee simple estate previously given, is invalid. In one of these cases,74 the limitation over was regarded as invalid because "inconsistent with the absolute property supposed in the first devisee," while in the other,75 the invalidity of the limitation over was based on the ground that "a valid executory devise of real or personal estate cannot be defeated at the will and pleasure of the first taker," and the gift of the power of disposition enables this to be done. The doctrine of these eases, that an executory limitation is invalid if there is a power of disposition in the first taker, was strongly approved by Chancellor Kent in a somewhat later decision,76 and is stated by him as settled law in his commentaries,77 citing, however, only the three cases above referred to, in the decision of two of which he participated, and also an English case,78 on which these
Mete. (Mass.) 134; Wilkes v. Lion, 2 Cow. (N. Y.) 390; Bouknight v. Brown, 16 S. C. 170; Randall v. Josselyn 59 Vt. 557, 10 Atl. 577.
72. Ante Sec. 140.
73. Fearne, Cont. Rem. 424; 2 Preston, Abstracts, 121; Taylor v. Taylor, 63 Pa. St. 481; Gray, Restraints on Alienation, Sec. 77 As to the effect of this rule upon the application of the rule against perpetuities, see post Sec. 184 note 38.
74. Ide v. Ide, 5 Mass. 500.
75. Jackson v. Bull, 10 Johns.
(N. Y.) 19
76. Jackson v. Robins, 16 Johns. (N. Y.) 537.
77. 4 Kent's Comm. 270.
78. Attorney Gen. v. Hall, Fitz. 314, W. Kel. 13. This case decided merely that a common recovery will bar a contingent remainder limited on an estate tail, and that an executory limitation of chattels personal is not good where the first taker has an absolute property therein, as distinct from a gift of the mere right of use. See article various decisions purport to rest, but which in no way sustains them. It is to be observed that the two cases first above referred to are not entirely in harmony as to the ground upon which the executory limitation is to be regarded as invalid, one basing it upon the repugnancy between such limitation and the absolute estate previously given, and the other upon the ability of the first taker to defeat the executory limitation, an ability said to be inconsistent with the validity of such limitation. The latter ground of invalidity appears to have been originally favored by the learned jurist above named,79 but he later says that the limitation is invalid because "inconsistent with the absolute estate, or power of disposition expressly given, or necessarily implied by the will,"80 thus giving in terms two alternative grounds of invalidity, inconsistency with the estate previously given and inconsistency with the power previously given. In spite, however, of this ambiguity in the earlier announcements thereof, and the unsatisfactory character of the reasons judicially advanced in its support,81 the general doctrine that, if land is given to one and his heirs, and he is also expressly given power to dispose of the land in fee simple, a subsequent limitation over in favor of another is invalid, has been generally adopted in this country.82 It has been frequently by Edward Brooks, Jr. Esq. 32 Am. Law Reg. (N. S.) 1035; Gray, Restraints on Alienation, Sec. 68.
79. In Jackson v. Robins, 16 Johns (N. Y.) 537.
80. 4 Kent's Comm. 270.
81. For criticisms of the doctrine, see Gray, Restraints on Alienation, Sec.Sec. 66-74g; Article by Edward tingency, might in some cases be effective to show that A is given merely a life estate,87-88 but it could not well have any other effect, and for the purpose of our present discussion it is assumed that it does not have even this effect, that is, thai A has a fee simple, and not a life estate. Applying this view, it would follow that, in the case of a gift to A and his heirs, a limitation over on A's death, of the same land, or of what remains thereof, is invalid by reason of its repugnancy to the estate previously given, without reference to whether A has or has not a power of disposition by the exercise of which the limitation may be defeated.89 There are some cases which appear to indicate such a view with more or less clearness,90 while in others,91 though the limitation over is regarded as invalid by reason of repugnancy to the estate previously given, it appears to be assumed that, in some way not clearly explained, the gift of a power of disposition to A in the case supposed alters the character of his estate, so as to give rise to this repugnancy. The idea, occasionally indicated, that if the estate first created is subject to a limitation over, which cannot be defeated, the first taker has a the same results as those excluded by its application can usually be obtained by giving a particular estate to the first, taker, with a power to dispose of the fee, and a remainder to the second taker, which remainder is subject to be defeated by the exercise of the power.86 In other words, when there is a gift to A for life, with or without a special limitation, and a power in A to dispose of the fee by deed or by will, a remainder on the life estate may be given to B, though this is liable to be defeated by an exercise of the power, and though this may be, for most purposes, the same in effect as a limitation over to B, which is to take effect in derogation of a gift in fee simple to A, but which A may defeat by an alienation of the fee.