The opinion
Allen, J.
(concurring): The will of the testator provided: “I give, grant, devise and bequeath to my wife” certain property. This language was effective to create an estate in fee simple absolute in the real estate and an absolute interest in the personal property. By a later clause it was provided that in case his wife “should die without having used or otherwise disposed of the property herein devised and bequeathed to her, I give, grant, devise and bequeath the same to my son Albert T. Dyal.”
The question is whether the gift to the son is good.
It is clear that the widow was given the power to dispose of the property by deed or by will. While the power is not stated in express words, it is implied from the gift over to the son of such portion of the property that was not disposed of by the widow. If the power to dispose of the property by deed or by will was not exercised, the property undisposed of by the widow, and of which she died intestate was to go to the son. The real question then is whether a gift over on intestacy is good.
The leading case on this question is Jackson v. Robins, (1819) 16 Johns. 537 . In that case the court was called upon to construe a will in which the testator devised property to his wife in fee simple and then provided that in case of her death without giving, devising and bequeathing by will, or otherwise selling or assigning the said estate, or any part thereof, then such parts thereof as should so remain unsold, undevised or unbequeathed, unto his daughter Catharine Duer. The opinion of the court was delivered by Chancellor Kent. The court held the gift over was void and that the widow took an estate in fee simple absolute. The argument of Kent, stated in that opinion, was formulated in his Commentaries in the following passage:
“Nor can an executory devise or bequest be prevented or destroyed by any. alteration whatsoever, in the estate out of which, or subsequently to which, it is limited. The executory interest is wholly exempted from the power of the first devisee or taker. If, therefore, there be an absolute power of disposition *150 given by the will to the first taker, as if an estate be devised to A in fee, and. if he dies possessed of the property without lawful issue, the remainder over, or remainder over the property which he, dying without heirs, should leave, or without selling or devising the same; in all such cases the remainder over is^ void as a remainder, because of the preceding fee; and it is void by way of' executory devise, because the limitation is inconsistent with the absolute-estate, or power of disposition expressly given, or necessarily implied by the-will. A valid executory devise cannot subsist under an absolute power of disposition in the first taker. When an executory devise is duly created, it is-a species of entailed estate, to the extent of the authorized period of limitation.” (4 Kent’s Commentaries, 14th ed., 305.)
A similar question was presented to this court in McNutt v. McComb, 61 Kan. 25 , 58 Pac. 965 . The court quoted the passage from. Kent’s Commentaries above set out and decided the case on the-theory that the gift over was void as a remainder, because of the preceding fee, and void by way of executory devise because the limitation is inconsistent with the absolute estate, or power of disposition expressly given, or necessarily implied by the will.
In 2 Simes, Future Interests, 510, it is stated:
“If a fee simple in land or a like interest in personalty is given, coupled with an absolute power of disposal by deed or will, the great weight of authority is to the effect that a gift over in the same instrument of what remains undisposed of is void. Hundreds of decisions lay down this rule. Not infrequently the gift over is upon some other contingency in addition to a failure to dispose of the property, such as death without children or without issue. By far the most common situation is that of a gift to the testator’s wife, with express or implied powers of disposal, followed by a gift over of ‘what remains’ to the testator’s children or heirs. But, regardless of these variations, the result is generally the same—the gift over is void.”
Various reasons have been advanced in support of the rule, but there is little doubt that the American decisions have been influenced by Chancellor Kent’s decision in Jackson v. Robins. The majority opinion gives a catalogue of our cases where the rule announced in McNutt v. McComb has been followed, distinguished and repudiated. But it is a singular fact that in none of the cases in which that case was criticised was the doctrine of Kent, therein quoted and upon which the decision rested, mentioned or discussed. It seems to have been a general impression that the rule was based upon a constructional preference for a prior over a subsequent clause.
If McNutt v. McComb is to be overruled, a casé based upon a doctrine formulated by Chancellor Kent, later reexamined on principle and reaffirmed in Van Horne v. Campbell, 100 N. Y. 287 , 3 N. E. 316 , 53 Am. Rep. 166 , and endorsed by the great weight of *151 authority in America, it would seem fitting that an outline of the controlling question should be stated.
To understand the theory of Kent quoted and relied on in theMcNutt case, it is necessary to bear in mind the nature of a con-, tingent remainder, and also the rule that an executory devise is-indestructible.
At common law a contingent remainder would fail if it did not vest before or immediately upon the termination of the preceding-estate of freehold. Thus in the often cited case of Festing v. Allen, 12 M. & W. 279, the testator devised land to his granddaughter during her life with remainder to her children who should attain the-age of twenty-one years. The granddaughter died, leaving three minor children. It was held the remainder to the children failed. (The rule as to the destructibility of contingent remainders was; repudiated in this state in Miller v. Miller, 91 Kan. 1 , 136 Pac. 953 .)
Where there was a life estate with contingent remainders over, it was possible for the life estate to be destroyed during the life' of the life tenant. In such case if the contingent remainder had not. vested, it would never take effect. Suppose A, an owner in fee-simple, should devise land to B for life, remainder to the heirs of C. A dies, leaving X as his only heir. -The ultimate fee is divided between X who has the reversion by descent and B the life tenant. If, then, X and B should convey to Y, the life estate in B would merge with the reversion, giving Y a fee-simple estate. The result, was the destruction of the contingent remainder in the heirs of C..
It was also a settled common-law rule that if a life tenant made, a tortious alienation his life-estate was destroyed and a contingent, remainder limited upon such life estate could never take effect.
These rules were in effect when the case of Pells v. Brown, Cro. Jac. 590, 79 Eng. Rep. 504, was decided in 1620. In that case the testator devised land to his son Thomas in fee, but provided that if Thomas should die without issue in the lifetime of his brother William then the land was to go to William. Thomas suffered a common recovery and tried to destroy the contingent interest of his. brother William in the same manner as contingent remainders could be destroyed. The interest of William was contingent, but it was-, not a contingent remainder but an executory devise. When the-court held that the executory devise in William could not be destroyed as contingent remainders could be destroyed it was necessary to formulate a rule fixing the time within which such con *152 tingent interests must vest and the rule thereafter formulated is called the rule against perpetuities.
The argument of Kent was based on the doctrine announced in Pells v. Brown that executory devises were indestructible. The following passage from 2 Simes, Future Interests, page 525, is pertinent:
“When we come to consider Chancellor Kent’s argument to the effect that an executory devise is necessarily indestructible, we find one which is peculiarly American; no trace of it being found in the English decisions. No better illustration than this can be found of the power of words to affect the course of judicial decision. Kent’s argument is this: By the decision in Pells v. Brown, executory devises, unlike contingent remainders, are indestructible. A limitation in a will following a fee or absolute interest in personalty is necessarily an executory devise and not a remainder. A power of disposal in the first taker would render the gift over destructible. Hence the gift over is void. The fallacy lies in the use of the word ‘destructible’ to mean two different things. What Pells v. Brown meant was that an executory devise would not be defeated by common recovery and the intention of the testator thus frustrated. Its whole purpose was to sustain the executory devise and to effectuate the testator’s intention. But an executory devise after an absolute gift to the first taker coupled with a power of disposal is not destructible in that sense. It is merely destructible in the sense that, according to the intention of the testator, it may fail to take effect if the power is exercised, because the testator has so provided. Thus Kent’s view produces an effect about as inconsistent with Pells v. Brown as can well be imagined, since it defeats the intention of the testator and destroys the executory devise.”
Executory interests are common in this state. Platt v. Woodland, 121 Kan. 291 , 246 Pac. 1017 ; Beverlin v. First National Bank, 151 Kan. 307 , 98 P. 2d 200 . See, Miller v. Miller, 91 Kan. 1 , 136 Pac. 953 .
Where the first taker is given the power to transfer his interest by deed or will, there is no restraint on alienation, hence a gift over on intestacy seems to be free from any valid objection. In Gray, Restraints on the Alienation of Property, 2d ed., § 57, it is stated:
“It has been often said and held that a devise to A. in fee, but if A. dies without having disposed of the land by deed or will, then over to B., is bad. It is not at first eaáy to say why this should be so; the owner of the land has full power of alienation, either by deed or will. It rests indeed with him to say whether the gift over shall take effect, but that is the case with many executory devises. A devise may be made to A. with a gift over, unless at his death he has been married, or has been called to the bar, or has gone to Rome, or has given $100 to B.; and no one will question that the gift over is good, although it may rest entirely within A.’s control whether the event which is to prevent the gift over shall take place or not. What illegality is there in *153 an executory devise depending on A.’s not making a deed or will, if he has the power of making one should he so wish?”
We are now committed to the doctrine that a gift over on intestacy is good. It is certainly sound in principle (see Hoover v. Roberts, 146 Kan. 785, 797 , 74 P. 2d 152 ) and has the merit of carrying out the intention of the testator.
It is to be carefully observed, however, that where the power to transfer is in a particular manner—as by deed only—or by will and not by deed, the rule adopted would seem to have no application. Obviously, if the first taker is authorized to transfer by will only, it would be a restraint on alienation by deed.