The re

with power to devise in fee carries but a life estate." mark was not essential to decide the cause, and so it is left to stand unsupported by reasoning or authority, yet whoever will consider the positions and examine the cases fully will find it difficult to come to a contrary conclusion. The first proposition is correct because the power to convey in fee, is a fee itself, and not a mere power, it is that which you cannot separate from a fee, being the absolute power or right of disposal in any way; but the power to devise in fee is a very different matter, not being itself a fee, but merely one of the attributes of a fee, it is a mere power and does not constitute a fee in the first devisee, as a power or right of general conveyance or disposal does, consequently the first devisee takes but an estate for life with a power; and no case of a devise contrary to this has been shown or discovered by the Court.

When the power is to be executed by will it cannot be done by deed or otherwise. Boyd's heirs v. Bingham, before cited, 8 T. R. 57; 2 East 481.

It is said that an executory devise is indestructible, that it cannot be barred or destroyed by the holder of the preceeding estate; now this rule only means that the first taker as a general rule cannot create a greater estate than he has; having a defeasible estate he cannot create an indefeasible one; he can do no act to prevent the vesting of the devise on the happening of the contingency, but he may prevent that occurrence. Mr. Fearne's rule as to the indestructibility of the devise by the holder of the preceding estate does not apply because the former does not proceed out of the latter but is an independent estate. Fearne Ex. Dev. 418, and so is not indestructible by destroying the contingency, or vice versa, thus the executory devise upon dieing without a will is good, but if a will be made the contingency is destroyed and so is the devise.

An executory devise may be so limited after an estate-tail and yet the tenant in tail may convey the estate by fine or recovery and thus destroy the devise over. 16 John R. 539; Powell on Dev. by Janvin 246; Jarman. on Wills 664; Cro. Jac. 592; Fearne by Pow. 18.

The only question left for our consideration is whether the same doctrine applies to personal that has been advanced as to real property. Where a fee-tail is created by will, the law as before stated creates a distinction between the real and personal estate on the ground that it will not presume that the testator intended to limit personal property on an indefinite failure of işsue, and therefore as to such property is construed that the legatee under such a limitation has the absolute interest. But an executory devise only applies where the terms used imply a definite failure of issue, and of course the above distinction does not apply, but both real and personal property can and do go over, on such definite failure of issue by way of executory devise. Hull v. Eddy, 2 Green 175; 16 John. R. 565, 584; 1 Jarman on Wills, 793 (n. 2.)

We come then to the conclusion that in the real and personal property devised and bequeathed to Eliza Rosetta by the will of her mother, subject to the limitations therein expressed, she takes a life estate only, with a power of appointment or disposition by will, and that in the event of her dying without issue and intestate, the executory devise over vested in her brother Charles and sister Margaret, and that they therefore are entitled to all the principle of the estate which of course does not include interest, dividends, or rents and profits due at the death of Eliza; they go to her personal representatives.

The deed executed by Margaret Salter, Charles and Edward Armstrong, and the marriage settlement entered into between Eliza Rosetta and her future husband, and Judge Kent, can in no way alter the above conclusion. The former only operates in confirmance of the power of their mother to execute a will under her marriage settlement, and the latter only on the property which Eliza Rosetta had a right to convey or absolutely control.

I am therefore of opinion that the decree below must be reversed and a decree entered in favor of the complainants, in accordance with the foregoing principles and conclusions.

In this opinion WALL, SPEER and MCCARTER, Judges, concurred.

OGDEN, Justice, and PORTER and SCHENCK, Judges, dissent

ed.

Decree reversed.

NOTE. CHANCELLOR H. considering the questions involved in this case proper for the Law Courts to decide, and having given an opinion on the will when at the bar, referred it to the Supreme Court; and gave no opinion in the Court of Chancery, or the Court of Errors and Appeals. REPORTER.

INDEX.

A.

ABATEMENT (OF LEGACY.) Vide WILL, 7.
ACCOUNT. Vide Trust and Trustee, 7, 8, 9.

ADULTERY.

1. Insufficient evidence of, on Bill for Divorce.
Bray,

Vide Court of Errors and Appeals, Adultery, 1.

ADVANCEMENT.

Bray v.
506

1. A deed in the form of bargain and sale, in consideration of
$1 and of love and affection, to one son, his heirs and as-
signs forever, to have and to hold to the use and benefit of
the said son and his wife and their heirs and assigns forever,
is, unless a different intention can be made to appear, an ad-
vancement to the son. Gordon v. Barkelew.

94

2. A father put one of his sons in possession of lands, which
the son occupied twenty years and then sold, and the father
made the deed to the purchaser and the son received the
consideration money. Held, to be an advancement.

ib.
3. A child who has received an advancement cannot be com-
pelled to pay anything on account of it to the other child-

ren.

AFFIDAVITS. Vide Injunction, 3.

AGREEMENT.

ib.

1. An improvident agreement made for a consideration grossly
inadequate, by one of great imbecility of mind, with anoth-
er whose position in relation to him conferred undue influ-
ence and control over him, will be set aside. Adm'rs of
Cook v. Cole.

522

Can-

Vide Specific Performance, 1, 2, 3, 5, 6. Fraud, 1, 2. Will, 8.
Usury, 5, 6, 7. Intemperance, 1, 2. Injunction, 6.
cellation of agreement, Vide Jurisdiction, 1. Specific Per