607. But when a life estate only is given to one person with a power to dispose of the land in which the life estate is given, and on the death of the first taker the portion of the land remaining undisposed of is given to another, the gift over is valid, and takes effect as to all the land remaining undisposed of on the death of the life tenant, as a remainder. Smith v. Snow, 123 Massachusetts, 323; Taft v. Taft, 130 id. 461; Bamforth v. Bamforth, 123 id. 280; Gibbins v. Shepard, 125 id. 541; Johnson v. Battelle, 125 id. 453; Burleigh v. Clough, 52 New Hampshire, 267; In re Stringer's Estate, ubi supra. Whether the first devisee takes a fee or only a life estate with a power to dispose of the land, and whether the power of disposition is only of the life estate or of the whole property, are often difficult questions of construction. Lyon v. Marsh, 116 Massachusetts, 232; In re Stringer's Estate, ubi supra; Pennock v. Pennock, L. R. 13 Eq. 144; Bowen v. Dean, 110 Massachusetts, 438; Smith v. Bell, 6 Peters (U.S.), 68; Brown v. Woodward, 12 Gray, 376; Brant v. Virginia Coal & Iron Co., 93 United States, 326. In the case at bar, if the provisions of the first codicil had been such that, if Meins should die without leaving issue living at his death, then the land given him should be equally divided among the sisters and nieces of the testatrix, Meins would have taken a fee in the land determinable on his dying without leaving issue living at his death, with an executory devise over to the sisters and nieces of the testatrix. Such an estate Meins could convey subject to the executory devise; but it would have been a different estate from an estate for his life. With such a determinable fee, the first codicil actually gives to Meins an absolute power of disposing of the land during his life. The addition of this power cannot well be held to diminish the estate given to Meins, and to cut it down to a life estate. It was the intention of the testatrix that, if Meins died leaving issue living at his death, he might dispose of what remained by will, or that, leaving no will, it should descend to his heirs. Such a power of disposal is, we think, inconsistent with an executory devise; and as the estate of Meins cannot be cut down to a life estate, it follows that the limitation over is void. Such, we think, is the weight of authority. Ide v. Ide, ubi supra; Gifford v. Choate, 100 Massachusetts, 343; Jackson v. Robins, 16 Johnson (N. Y.), 537; McRee v. Means, 34 Alabama, 349; Jones v. Bacon, 68 Maine, 34; McKenzie's Appeal, 41 Connecticut, 607; Holmes v. Godson, ubi supra. Andrews v. Roye, 12 Richardson (S. C.), 536, is contra. Stevenson v. Glover, 1 C. B. 448, must, it seems, be regarded as overruled by Holmes v. Godson and Shaw v. Ford, ubi supra. In Sullivan, 113 Massachusetts, 345, it was left undetermined whether Kimball V. the wife took an absolute fee, or a qualified fee with an executory desire over.” The addition of a power of disposition to the grant or devise of a life estate is usually held not to invalidate either a remainder or an executory devise over, or enlarge the life estate into a fee. Wortman v. Robinson, 44 Hun (N. Y.), 357; Burleigh v. Clough, 52 New Hampshire, 267; Hall v. Otis, 71 Maine, 326; Wooster v. Cooper, 53 New Jersey Equity, 682; Wommack v. Whitmore, 58 Missouri, 448; 2 Jarman on Wills (Bigelow's 6th Am. ed.), ch. 33. In Alabama, see Hood v. Bramlett, 105 Alabama, 660. And when by the express terms of a devise a full and absolute right is given to the devisee to dispose of the property as any other owner, he is not precluded in his lifetime Holmes v. Godson. —Notes. from conveying the premises in trust with the reservation of an interest therein for life, although the language of the devise clearly implies that he could not devise by will that which is undisposed of at his decease. Perry v. Cross, 132 Massachusetts, 454. Even a mere quality or condition which a testator aims to attach to a gift of a fee simple is void as being inconsistent with such an estate. Kent v. Morrison, 153 Massachusetts, 137; Foster v. Smith, 156 id. 379. In Virginia it is held that when an estate for life is given in real and personal property for life, with full power to dispose of it, and to use the purchasemoney for investment, or any other purpose, provided that what remains at the devisee's death is to be divided as directed by the testator, the devisee takes a fee simple in the realty, and an absolute estate in the personalty, and that the gift over is void for uncertainty and repugnancy. Madden v. Madden, 2 Leigh (Va.), 377; May v. Joynes, 20 Grattan (Va.), 692; Farish v. Wayman, 91 Virginia, 430; Robertson v. Hardy (Virginia), 23 Southeastern Rep. 766. In Ohio, it is held that, upon such devise of a life estate to the testator's widow for support, and "if at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between," &c., the unconsumed part remaining at the widow's decease belongs to the remainder-men designated in the will, and that the widow is a quasi trustee for such remainder-men. Johnson v. Johnson, 51 Ohio St. 446. See Ladd v. Chase, 155 Massachusetts, 417; Birmingham v. Lesan, 76 Maine, 482; Wright v. Wright, 41 New Jersey Equity, 382; Griffin v. Griffin, 141 Illinois, 373; Paxton v. Bond (Kentucky), 15 Southwestern Rep. 875. The rule against repugnancy applies with especial force in the case of personalty. Thus, upon a bequest of certain personal property to the testator's widow with a gift over "if any remains at her decease," the latter gift is void because inconsistent with the absolute power of disposal given to the widow. McKenzie's Appeal, 41 Connecticut, 607. These cases are not placed on the uncertainty or difficulty of tracing personal property, but on the grounds upon which the cases concerning real estate are generally dealt with in the United States. Gray on Restraints on Alienation (2d ed.), § 65. When personal property is not consumed in the use, as in the case of slaves, a remainder therein may be limited after a life estate; but when the personalty is of different kinds, and some of it is of a trifling and perishable nature, general words in a will, applicable to property of different kinds, may be restricted to property of a particular kind; the phrase "whatever may remain " may thus be limited to personal property only, though used in a sentence applying to both real and personal estate. Smith v. Bell, 6 Peters (U. S.), 68; Giles v. Little, 104 United States, 291, 298. A remainder may even be created in money, which, though it may be lost, will not be destroyed in the use; and an executory devise of money limited upon a definite failure of issue is valid. Philips v. Crews, 65 Georgia, 274; Crawford v. Clark (Georgia), 36 Southeastern Rep. 404; Rowe v. White, 16 New Jersey Equity, 411; Scott v. Price, 2 Sergeant & Rawle (Penn.), 59. In Rowe v. White, ubi supra, it was held that, in the case of a specific bequest of chattels for life with remainder over, the legatee in remainder is not now, as formerly, entitled to call upon the tenant for life for security that the chattels shall be forthcoming at his decease. Attorney-General v. Beech, 68 L. J. Q. B. 130. — Rule. Under the general rule against repugnancy, any reservation, exception, or condition in a deed, which detracts from or is inconsistent with the granted estate or interest, is also void. Riddle v. Charlestown, 43 West Virginia, 796; Hale v. Docking, 6 Kansas Appeals, 283, affirmed in 60 Kansas, 856. The habendum clause of a deed, when repugnant to the premises or the granting clause, is rejected. 3 Washburn on Real Property 5th ed., 469; Hunter v. Patterson, 142 Missouri, 310, 320. The prevailing doctrine as to both deeds and devises is, that when good and bad provisions are mixed therein, the good are to be saved, so far as consistent with the probable intent. Darling v. Rogers, 22 Wendell (N. Y.), 483; Noyes v. Guy (Indian Territory), 48 Southwestern Rep. 1056. REVENUE.-ESTATE DUTY. ATTORNEY-GENERAL v. BEECH. RULE. WHERE a tenant for life under a settlement surrenders his life interest so as to merge it in the remainder, and dies more than twelve months afterwards, estate duty is not payable by the remainder-man under the Finance Act, 1894 (57 & 58 Vict. c. 30). Attorney-General v. Beech.1 68 L. J. Q. B. 130-135 (s. c. 1899, A. C. 53). Revenue.- Estate Duty. - Property "passing" on Death. - Settlement. [130] Surrender by Tenant for Life of Life Interest to Remainder-man more than Twelve Months before Death. - Finance Act, 1894 (57 & 58 Vict. c. 30), ss. 1 and 2, sub-s. 1 (b). Estate duty is not payable under the Finance Act, 1894, upon the death of the tenant for life of settled property, where the tenant for life has, more than twelve months before his death, surrendered his life interest in the property to the remainder-man so as to merge the life estate in the estate in remainder. Appeal from an order of the Court of Appeal (A. L. SMITH, L. J., CHITTY, L. J., and COLLINS, L. J.), which reversed the decision of the late POLLOCK, B., and RIDLEY, J. 1 Coram the LORD CHANCELLOR (Earl of HALSBURY), Lord WATSON, Lord ASHBOURNE, Lord MACNAGHTEN, Lord MORRIS, Lord SHAND, Lord DAVEY, and Attorney-General v. Beech, 68 L. J. Q. B. 130, 131. The question was whether, when a tenant for life under a settlement surrenders in his lifetime his life interest to the person entitled in remainder, estate duty is on the death of the tenant for life payable by the remainder-man on the life estate so surrendered. In July, 1852, on the marriage settlement of William Philip Beech and his wife, Eliza Catherine Prince Beech (then Howard), all the real and personal estate to which Mrs. Beech was or might become entitled, or to which her husband in her right might become entitled, was to be vested in trustees and converted into money, and such part thereof as was real estate, until such conversion considered as personal estate, upon trust during the joint lives of husband and wife to pay the income to the wife for her separate use without power of anticipation. Then, in case (which happened) Mrs. Beech should survive her husband, upon trust to pay the income of the trust funds to Mrs. Beech; [*131] * then upon trust for children or remoter issue as after her husband's death Mrs. Beech might by deed or will appoint, and in default of appointment upon trust for the then present children of W. P. Beech and the children of the intended marriage who being sons should attain twenty-one, or daughters should attain that age or marry, in equal shares. The husband died on November 21, 1885, and there were only two children of the marriage, namely, the defendant (respondent in the House) Howard Beech and Catherine Henrietta, now Mrs. Greig. Provision was made by a deed of appointment in 1886 for Mrs. Greig, and on December 18, 1894, the indenture was executed which gave rise to the claim of the revenue authorities. It was between Mrs. Beech, widow, of the first part, the defendant Howard Beech of the second part, and the defendant William Beech of the third part; and, after a recital of Mrs. Beech's desire to surrender her life interest for the benefit of her son, it was witnessed that Mrs. Beech thereby surrendered to the defendants William Beech and Howard Beech (who were then trustees of the settlement of 1852) all that her life interest under the settlement to the end and intent that such life interest might merge in the interest in remainder of the defendant Howard Beech, and that accordingly the defendants William Beech and Howard Beech, as trustees of the settlement, might hold the moneys, investments, and property in trust for Howard Beech to be disposed of as he or they should direct. Attorney-General v. Beech, 68 L. J. Q. B. 131. Mrs. Beech died on August 27, 1896. The Queen's Bench Division declared that on the death of Mrs. Beech, estate duty became payable under sect. 2, sub-sect. 1 of the Finance Act, 1894,1 upon the principal value of the trust property specified in the schedule to the indenture of December 18, 1894, mentioned in the information, and that the same passed on her death within the meaning of the Act. This order was reversed in the Court of Appeal. The Attorney-General (Sir R. E. Webster, Q. C.) and Sir R. T. Reid, Q. C. (the Solicitor-General, Sir R. B. Finlay, Q. C., and Vaughan Hawkins with them), for the appellant. The property "passed" to the respondent within the meaning of sect. 2, subsect. 1 of the Finance Act, 1894. The object of the Act is to impose the duty once during the settlement, which, as soon as made, was stamped with liability to duty. The Act is designed to follow the limitations of the settlement so that duty may attach to each successive interest. The artificial life of the settlement is to take the place of the natural life of the individual. Thus the doctrine of merger does not affect the question of duty. Whatever the respondent has, he has under the settlement. The duty is charged in sect. 2, sub-sect. 1 (b), on " Property in which the deceased . . had an interest," that is, "had at any time an interest. The other construction requires "had at the date of a remainder-man. sold his interest to a stranger, and one of the purchasers bought up the interest of the other, it is admitted that duty would be payable. In like manner, if the tenant for life first sold his interest to the remainder-man, and the latter subsequently assigned the remainder, the assignee would pay duty on the death of the These illustrations show that the words "pass tenant for life. |