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share and share alike." The will was duly probated, and thereafter the grantee of the power, the widow of the devisee, conveyed by deed containing full covenants of warranty and in the usual form a part of the premises to a railway company. In an action of ejectment, brought after the decease of the widow, by the heirs at law of a remainderman against the tenant of the company, it is held that under the provisions of G. S. 1894, §§ 4309, 4312, 4313, 4350, the grantee in the deed acquired a perfect and complete title to the property, and that the plaintiffs have no interest therein.31

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433. Gift of the use and benefit of property-A gift of the use of property, without any restrictions or limitations, is an absolute bequest of personal property and a devise in fee of real property.32 A devise of the use of property for life is a devise of the property for such term if there is no limitation.38 A gift of the use of money for life is a gift of the income only and the legatee must give security for the protection of the remainderman.3 A testator devised certain land to trustees, in trust to permit his son-in-law "to use and occupy the same for and during the term of his natural life, and after his decease in trust," etc. There was no limitation on the use of the land by the son-in-law. He was not restrained from selling or incumbering his interest and was not subject to the control of the trustees in his use of the land. Held, that under the statute of uses (G. S. 1913, §§ 6703, 6704) the legal estate in the land for his life was vested in the son-in-law and his interest was assignable and subject to be sold for his debts.35 Where a will gives to a wife all the property of the testator, for her use and benefit, including an absolute power of disposition, with a provision that at her death any residue shall go to children, it is often difficult to determine whether the testator intended to give her a fee or merely a life estate. Such wills are very common and they vary so much in the language used that no hard and fast rules can be laid down." 36 A will giving all the

31 Ashton v. Great Northern Ry. Co., 78 Minn. 201, 80 N. W. 963.

32 Chase v. Chase, 132 Mass. 473; Gallison v. Quinn, 183 Mass. 241, 66 N. E. 961; Hayward v. Rowe, 190 Mass. 1, 76 N. E. 286; Dallinger v. Merrill, 224 Mass. 534, 113 N. E. 279; Moore v. Moore, 84 N. J. Eq. 39, 92 Atl. 948; 30 A. & E. Ency. of Law (2 ed.) 715; 40 Cyc. 1583, 1609.

33 Farmers Nat. Bank v. Moran, 30 Minn. 165, 14 N. W. 805; In re Oertle's Estate, 34 Minn. 173, 181, 24 N. W. 924; Semper v. Coates, 93 Minn. 76, 100 N. W. 662; Sorenson v. Carey, 96 Minn. 202, 104 N. W. 958; Worley v. Wimberley, 90 Neb. 20, 154 N. W. 849; Cross v. Bus

kirk-Rutledge Lumber Co., 139 Tenn. 79, 201 S. W. 141; Allen v. Hunt, 213 Mass. 276, 100 N. E. 552; 40 Cyc. 1516, 1627.

34 Tapley v. Douglass, 113 Me. 392, 94 Atl. 486. See In re Oertle's Estate, 34 Minn. 173, 24 N. W. 924.

35 Farmers Nat. Bank v. Moran, 30 Minn. 165, 14 N. W. 805.

36 See cases under §§ 431, 432, 468; White v. Grand Rapids etc. R. Co., 190 Mich. 1, 155 N. W. 719; Laberteaux v. Gale, 196 Mich. 150, 162 N. W. 968; Sellick v. Sellick, 207 Mich. 194, 173 N. W. 609; Ironside v. Ironside, 150 Iowa 628, 130 N. W. 414: Kemp v. Kemp, 223 Mass. 32, 111 N. E. 673.

property, after payment of debts and expenses, to testator's wife for her use and benefit during her life, and at her death giving to others all that given to her, "or so much thereof as may then remain unexpended," gives her the right to use from the corpus.37

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434. Devise of possession, rents and profits-Statute-A devise of the rents and profits of land is equivalent to a devise of the land itself and will convey the legal as well as the beneficial interest therein, unless the will limits the estate. 38 Every person who, by virtue of any grant, assignment, or devise, is entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interests. This statute does not mean that every person who is by will entitled to the possession of lands, and the receipts and profits thereof, shall be deemed to have a legal estate therein, but applies only where the will contains no limitations on the estate or interest of the devisee.40 It does not apply to trusts arising by implication of law or authorized express trusts.41 This section of the statute refers exclusively to a class of passive trusts, where the immediate possession and whole beneficial use of the land is given directly to the cestui que trust, the trustee being made by the will or deed the depositary of a mere naked title, with no active duties to perform in respect to the property. By this and other sections of the statute all naked, dry, nominal or passive trusts are abolished.12 An absolute gift of all income of property is a gift of the property itself. A will contained the following provisions: "It is my wish and desire that my husband, John Poseng, shall have all the rents, profits and income derived from all my real estate and houses of which I shall die seized and possessed of, during his natural life provided, * that my husband, John Poseng, shall pay and continue to pay

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37 Chamberlain v. Husel, 178 Mich. 1, 144 N. W. 549.

38 Morrison v. St. Paul & N. P. Ry. Co., 63 Minn. 75, 80, 65 N. W. 141; Scruggs v. Yancey, 188 Ala. 682, 66 So. 23; Jordan v. Walker (Ala.) 77 So. 838 (rule inapplicable where will makes other disposition of the property); 30 A. & E. Ency. of Law (2 ed.) 743; 40 Cyc. 1583; 28 R. C. L. 239; 9 Ann. Cas. 247.

39 G. S. 1913, § 6703; 49 McKinney's Consol. Laws (N. Y.) § 92; Blakeley v. LeDuc, 25 Minn. 448; Farmers' Nat. Bank v. Moran, 30 Minn. 165, 14 N. W. 805; Thompson v. Conant, 52 Minn. 208, 53 N. W. 1145; Haaven v. Hoaas, 60 Minn. 313, 315, 62 N. W. 110; Rosbach v. Weidenbach, 95 Minn. 343, 104 N. W. 137.

40 Rosbach v. Weidenbach, 95 Minn. 343, 104 N. W. 137.

41 G. S. 1913, § 6705; Johnston v. Spicer, 107 N. Y. 185, 13 N. E. 753.

42 Trustees v. Froislie, 37 Minn. 447, 452, 35 N. W. 260; Whiting v. Whiting, 42 Minn. 548, 44 N. W. 1030; Thompson v. Conant, 52 Minn. 208, 53 N. W. 1145; Rogers v. Clark, 104 Minn. 198, 222, 116 N. W. 739. See McKinney Consol. Laws (N. Y.) §§ 92, 93; New York Dry Dock Co. v. Stillman, 30 N. Y. 174; Wendt v. Walsh, 164 N. Y. 154, 58 N. E. 2; Jacoby v. Jacoby, 188 N. Y. 124. 80 N. E. 676; 39 Cyc. 220.

43 Birge v. Nucomb (Conn.) 105 Atl. 335.

year after year all current expenses such as taxes, insurance, improvements and repairs on said real estate." Also: "It is my wish and desire, and this bequest herein is made upon the express condition that all my real estate, of which I shall die seized or possessed of, shall be kept free from any incumbrances by mortgages or otherwise, and that no such incumbrance shall be made upon the same by my husband, John Poseng, during his natural life." Held, upon the death of the testatrix her husband did not become vested with the legal estate, but the interest and profits thereof were devised to him during his natural life only.**

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435. Absolute estate with inconsistent or indefinite limitations-It is a general common-law rule that an absolute estate in either real or personal property clearly given cannot be cut down to a lesser estate by inconsistent or repugnant limitations thereon. This general common-law rule is greatly restricted by our statutes relating to estates and powers derived from New York. Under our statutory system the tendency is against a construction destroying a clause in a will which limits or cuts down a prior absolute gift. To cut down a prior absolute gift a subsequent provision must be as clear as the provision creating the absolute gift, but if reasonably possible both provisions must be given effect. All the provisions of a will must be read together and given effect so far as possible and a fee clearly granted may be cut down by subsequent provisions clearly showing an intention to give a lesser estate. An absolute estate clearly granted cannot be cut down to one for life by subsequent indefinite provisions. But an absolute estate clearly granted may be cut down to a life estate by subsequent provisions clearly showing an intention to give the lesser estate. 48 The

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44 Rosbach v. Weidenbach, 95 Minn. 343. 104 N. W. 137.

45 Sherburne v. Littel, 220 Mass. 385, 107 N. E. 962; Kemp v. Kemp, 223 Mass. 32, 111 N. E. 673; Canaday v. Baysinger, 170 Iowa, 414, 152 N. W. 562; 30 A. & E. Ency. of Law (2 ed.) 748; 40 Cyc. 1586, 1610; 28 R. C. L. 242.

46 Goodwin v. Coddington, 154 N. Y. 283, 48 N. E. 729; Trask v. Sturges, 170 N. Y. 482, 63 N. E. 534; In re Bearse, 153 N. Y. S. 514.

47 Schnitter v. McManaman, 85 Neb. 337, 123 N. W. 299; Bennett v. Packer, 70 Conn. 357, 30 Atl. 739; Plaut v. Plaut, 80 Conn. 673, 70 Atl. 52; Clark v. Baker, 91 Conn. 663, 101 Atl. 9; Meriden Trust & Safe Deposit Co. v. Squire (Conn.) 103 Atl. 269; Scott v. Gillespie, 103 Kan. 745, 176 Pac. 132; Otis v. Otis (Ky.) 177 Pac. 520; Fecht v. Henze, 162 Mich. 52,

127 N. W. 26; Hollway v. Atherton (Mich.) 171 N. W. 413; 30 A. & E. Ency. of Law (2 ed.) 748, 40 Cyc. 1611; 28 R. C. L. 241. See § 431.

48 Elberg v. Elberg, 132 Minn. 15, 155 N. W. 751; Long v. Willsey, 132 Minn. 316, 156 N. W. 349; Clark v. Baker, 91 Conn. 663, 101 Atl. 9; Clay v. Wood, 153 N. Y. 134, 47 N. E. 274; Trask v. Sturges, 170 N. Y. 482, 63 N. E. 534; Tillman v. Ogren, 227 N. Y. 495, 125 N. E. 821; Fecht v. Henze, 162 Mich. 52, 127 N. W. 26; Wheeler v. Long, 128 Iowa 643, 105 N. W. 161; Grieves v. Grieves (Md.) 103 Atl. 572; McClintock v. Meehan, 273 Ill. 434, 113 N. E. 43; Pattison v. Farley, 130 Md. 408, 100 Atl. 634; Scott v. Gillespie, 103 Kan. 745, 176 Pac. 132; Otis v. Otis (Kan.) 177 Pac. 520; Grant v. Hover (Neb.) 174 N. W. 317; Meins v. Meins, 288 Ill. 463, 123 N. E. 554; 30 A.

general rule that a fee clearly granted cannot be cut down by a subsequent inconsistent provision is subject to the exception of an executory devise, whereby, upon the happening of some contingency, such as the death of the first devisee without issue, the estate first granted is cut down to a base or determinable fee.49 Where there is an absolute gift of property, real or personal, with full power of disposition, a gift over is void at common law, being inconsistent with the first gift.50 This rule rests on no solid foundation and has been abrogated by statute in this state. It does not apply unless there is a full power of disposition given. There may be a remainder over in the form of an executory devise after an absolute fee.52 The principle stated above does not apply where the will purports to give only a life estate to the first taker, with merely a power of disposition of the remainder as a separate interest. In such a case, if the power is executed, the property passes under the original will, through the execution of the power, to the person designated, and if it is not executed it remains to be affected by the other provisions of the will, or to pass as undevised estate of the testator.5 Where an absolute fee is given subsequent provisions limiting or postponing the control or enjoyment of the property for a limited time are not necessarily repugnant and void. An absolute title in fee cannot be cut down by a condition against alienation by the devisee within a certain number of years, or during his life.55

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436. Joint tenancy and tenancy in common-Statute-All grants and devises of lands, made to two or more persons, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy. This does not apply to mortgages, or

& E. Ency. of Law (2 ed.) 687, 748; 40 Cyc. 1577, 1586; 28 R. C. L. 241; Woerner, Am. Law of Adm. (2 ed.) § 416; 3 Ann. Cas. 615; 10 Id. 176; 11 Id. 470. See § 431.

49 In re Peavey's Estate, 144 Minn. 208, 175 N. W. 105; Defrees v. Brydon, 275 III. 530, 114 N. E. 336; Guilford v. Gardner, 180 Iowa 1210, 162 N. W. 261; Meriden Trust & Safe Deposit Co. v. Squire (Conn.) 103 Atl. 269. See § 430. 50 Ide v. Ide, 5 Mass. 500; Collins v. Wickwire, 162 Mass. 143, 38 N. E. 365; Bassett v. Nickerson, 184 Mass. 169, 68 N. E. 25; Galligan v. McDonald, 200 Mass. 299, 86 N. E. 304; Sherburne v. Littel, 220 Mass. 385, 107 N. E. 962; Kemp v. Kemp, 223 Mass. 32, 111 N. E. 673; Davis v. Davis, 225 Mass. 311, 114 N. E. 309; Law v. Douglass, 107 Iowa 606, 78 N. W. 212; In re Ithaca Trust

Co., 220 N. Y. 437, 116 N. E. 102; Spencer v. Scovil, 70 Neb. 87, 96 N. W. 1016; In re Condon's Estate, 167 Iowa 215, 149 N. W. 264; Morrill v. Morrill, 116 Me. 154, 100 Atl. 756; Moran v. Moran, 143 Mich. 322, 106 N. W. 206; Barry v. Austin (Me.) 105 Atl. 806; 24 A. & E. Ency. of Law (2 ed.) 446; 30 Id. 749; 40 Cyc. 1587; Woerner, Am. Law of Adm. (2 ed.) § 439; 5 L. R. A. (N. S.) 323. See § 439. 51 See § 439.

52 See § 437.

53 Collins v. Wickwire, 162 Mass. 143, 38 N. E. 365.

54 Elberts v. Elberts, 159 Iowa 332, 141 N. W. 57; Williams v. Williams, 73 Cal. 99, 14 Pac. 394.

55 Hause v. O'Leary, 136 Minn. 126, 161 N. W. 392; Gishell v. Ballman, 131 Md. 260, 101 Atl. 698. See § 407.

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to devises or grants made in trust, or to executors.56 In New York the statute applies to personalty as well as realty, to legacies as well as devises. While our statute is limited to realty the same rule is probably applicable to personalty. There may be a joint tenancy of personalty as well as of realty, with the right of survivorship.58 An estate in joint tenancy can only be created by language clearly declaring the estate to be in joint tenancy. Such an estate is disfavored and every presumption is against its creation. Even the use of the word "jointly" is not decisive of an intention to create such an estate.59 To create a joint tenancy, however, it is not necessary that the words "joint tenancy" should be used. Any other expression is sufficient if it clearly expresses an intention to create such a tenancy and negatives the presumption arising from the statute. A gift to a man and his wife creates a tenancy in common unless a joint tenancy is expressly declared."1 A gift to A and his children is a gift to them concurrently as tenants in common unless the will provides otherwise. At common law they took as joint tenants, but under G. S. 1913, § 6694, they take as tenants in common, unless the will expressly provides that they shall take as joint tenants. The context may show that it was the intention of the testator to give the parent a life estate with remainder to the children. The same rules apply to a gift to A and B and their children. The statute does not apply to mortgages and a mortgage to two or more makes them joint tenants as 'at common law, unless a contrary intention is expressed by the instru

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56 G. S. 1913, § 6694; 49 McKinney's Consol. Laws, N. Y. § 66; 23 Cyc. 486; 40 Cyc. 1636; 17 A. & E. Ency. of Law (2 ed.) 657; 7 R. C. L. 813; Ann. Cas. 1914C, 233; Ann. Cas. 1917B, 57.

57 Mills v. Husson, 140 N. Y. 99, 35 N. E. 422; Commercial Bank v. Sherwood, 162 N. Y. 310, 56 N. E. 834; Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 138; Stetson v. Eastman, 84 Me. 366, 24 Atl. 868; Ann. Cas. 1917B, 57, 97; 49 McKinney's Consol. Laws, N. Y. § 66. See contra, Farr v. Grand Lodge, 83 Wis. 446, 53 N. W. 738; Dupont v. Jonet, 165 Wis. 554, 162 N. W. 664; Hart v. Hart, 201 Mich. 207, 167 N. W. 337; In re Grote's Estate, 203 Ill. App. 50.

58 Attorney General v. Clark, 222 Mass. 291, 110 N. E. 299; Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738; In re McKelway's Estate, 221 N. Y. 15, 116 N. E. 348; In re Reynold's Estate, 163 N. Y. S. 803; In re Harris' Estate, 169 Cal. 725, 147 Pac. 967; Dupont v. Jonet, 165 Wis. 554, 162 N. W. 664. Contra, Hart v. Hart, 201 Mich. 207, 167 N. W. 337.

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59 Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738; In re Haddock's Will, 155 N. Y. S. 630; Allen v. Almy, 87 Conn. 517, 89 Atl. 205; Hart v. Hart, 201 Mich. 207, 167 N. W. 337 ; Bassler v. Rewodlinski, 130 Wis. 26, 109 N. W. 1032.

60 Coster v. Lorillard, 14 Wend. (N. Y.) 342; Purdy v. Hayt, 92 N. Y. 446; Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738; Mustain v. Gardner, 203 Ill. 284, 67 N. E. 779; Roaf v. Champlin (N. H.) 107 Atl. 339.

61 Wilson v. Wilson, 43 Minn. 398, 45 N. W. 710; In re Klatzl's Estate, 216 N. Y. 83, 110 N. E. 181. See Dorsey v. Dorsey, 142 Minn. 279, 171 N. W. 933.

62 In re Utz' Estate, 43 Cal. 200; Whitefield v. Means, 140 Ga. 430, 78 S. E. 1067; In re Russell, 168 N. Y. 169, 61 N. E. 166; Colby v. Wortley (Mich.) 172 N. W. 561 Hutchens v. Denton (W. Va.) 98 S. E. 808; 30 A. & E. Ency. of Law (2 ed.) 754; 40 Cyc. 1638; L. R. A. 19176, 49.

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