But it is argued with great earnestness by counsel that while these words standing alone might be sufficient to create a fee simple, yet when considered in connection with the subsequent words of the will they in fact create a fee tail.

Let us consider, then, the words "unto them and their heirs and assigns forever," with the subsequent clauses of this fourth item of the will. . Did the testator intend to give his said two sons an absolute fee, or a fee defeasible upon the death of both without issue, or 251 did he intend to create an estate tail? Two views are maintained by defendant. The first is that by the gift of an absolute fee in most appropriate language in the first instance and understanding and intending thereby that they had the absolute power of aliening the land thus devised to them, when he added the clause, "It is my will that the same shall not be sold, at least not before the younger of the two, Joseph E. Gannon, becomes of age," he gave, and intended to give, an additional power to sell when Joseph reached his majority. Keeping in mind, as we do, that he had already granted an estate to them to which the power of sale attached as a necessary incident and that he understood that he had done so, and that it was, therefore, his intention to do so, the clause restraining the sale until Joseph arrived at age must be construed and read as if he had said, "I give my said sons full power to sell and convey said land when Joseph, the younger of the two, becomes of lawful age." To our minds it seems absolutely clear that he understood he had already granted them a fee simple with the power to sell, and he only desired the land should not be sold during the minority of Joseph, but after that it was his will that no restraint should exist on their power to sell and convey. It is to be observed in this connection that the restriction is not to the sale of a mere life estate, but to a sale of the land itself. No such restriction was necessary if he had given them a mere life estate. We understand it is settled law that where an estate is devised to one and his heirs and assigns forever and there is added either by express words or by implication an absolute power of alienation, the limitation over is void. In our opinion the words of this restraining clause give an express power to sell, but if not there is clearly given such power by implication.

In 2 Redfield on Wills, page 277, it is said: "It is a settled rule of American as well as English law, that when the first devisee has the absolute right to dispose 252 of the property in his own limited discretion, and not a mere power of appoint

ment among certain specified persons or classes, an estate over is void, as being inconsistent with the first gift." Void as a remainder, because of the preceding fee, after which a remainder cannot be limited. Void as an executory devise, because a valid executory devise cannot subsist under an absolute power of disposition in the first taker. Thus Chancellor Kent says, volume 4 (fourteenth edition), 270: "If, therefore, there be an absolute power of disposition 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": Jones v. Bacon, 68 Me. 34, 28 Am. Rep. 1; McKenzie's Appeal, 41 Conn. 607, 19 Am. Rep. 525; Rona v. Meier, 47 Iowa, 607, 29 Am. Rep. 493; Kelley v. Meins, 135 Mass. 231 and cases cited; Howard v. Carusi, 109 U. S. 725, 3 Sup. Ct. Rep. 575, 27 L. ed. 1089; 2 Washburn on Real Property, 6th ed., 667; Roth v. Rauschenbusch, 173 Mo. 582, 73 S. W. 664, 61 L. R. A. 455; Wolfer v. Hemmer, 144 Ill. 554, 33 N. E. 751; Ball v. Hancock's Admr., 82 Ky. 107; Combs v. Combs, 67 Md. 11; Hoxsey v. Hoxsey, 37 N. J. Eq. 21; Wead v. Gray, 78 Mo. 59; Van Horne v. Campbell, 100 N. Y. 287, 53 Am. Rep. 166, 3 N. E. 316, 771.

If we are right in this position plaintiffs cannot recover. Let us next inquire whether an estate in fee tail was intended to be created in these two sons and the heirs of their body. And first, was there an estate tail created by express words? The contention is that the word "heirs" expressed or implied is just as essential to the creation of an estate tail as of an estate in fee simple, the difference being that in the creation of a fee 253 tail a particular class or line of heirs must be indicated, while in fee simple it is to the heirs general.

As understood by all lawyers, what is known as fee tail estates had their origin in the statute 13 Edward I, chapter 1 (1285). The name "fee tail" was borrowed from the feudists, amongst whom it signified any mutilated or truncated inheritance from which the heirs general were cut off, or, as some say, because ownership of the subject was cut in two parts, one going to the donee and the heirs of his body and the other re

maining as a reversion in the donor: 2 Blackstone's Commertaries, 112n. (M.); 1 Coke's Littleton, 512-525. The familiar forms of creating such estates were "grant to A and the heirs of his body"; or "grant to A and the heirs male of his body"; or "grant to A and the heirs male of his body on Mary, his now wife, to be begotten": 2 Blackstone's Commentaries, 113, 114; 2 Minor's Institutes, 80.

In conveyances inter vivos the word "heirs" was necessary to create the estate, whereas in wills, any words manifesting the testator's intent were sufficient; thus, a grant by deed to a man and his issue of his body or to his issue or to his offspring, would pass only a life estate for want of proper words of inheritance, whereas in a will the same words would create an estate tail: 2 Blackstone's Commentaries, 115, 116.

In all the foregoing examples it is to be observed that the grant or devise is to the heirs of the body or to the issue or offspring, and these are cases wherein by express words a fee tail is created. Leaving out for the present any consideration of the creation of estates tail by implication, it is too obvious for serious discussion that there is no express gift by the testator to the heirs of the bodies of Michael J. Gannon, Jr., and Joseph nor to their issue. But the contention is that the word "heirs" is explained by the subsequent use of the word "issue" and they must be read together and so used they are synonymous with "heirs of his or their bodies," and thus interpreting the words "unto them 254 and their heirs and assigns," as "heirs of their bodies," an estate tail is created by express words. To us this seems a most unnatural and forced construction of the words "unto their heirs and assigns forever," words which, we have already seen, have a settled meaning in the law and carry on their face a clear unambiguous intention of passing or creating a fee simple.

In order to reach this conclusion the word "assigns" in said clause must be stricken out of the will, and utterly disregarded, in the face of the settled rule that in construing any document, deed or will we must give effect to every word if it be possible without contravening the intention of the grantor or devisor. In addition to striking out the word "assigns" we must interpolate the word "heirs of his or their bodies," and both to reach an intention in conflict with a plain and unambiguous intention to devise a fee simple to these two sons. To accomplish this, the first devise given to the natural objects of the testator's bounty is made secondary to the ulterior and contingent devise

over, found in a subsequent clause. We do not question that courts may transpose the words of a will if necessary to reach the true intention of the testator, but we insist that it must be presumed that the testator used the words he intended to use in their plain and ordinarily accepted legal sense, and we are not justified in interpolating other words and words of entirely different import. By resorting to such a course we import an ambiguity in the will and then substitute words which the testator did not use to remove that ambiguity. We submit there is no occasion for resorting to such refinements to avoid the force and effect of a plain devise of a fee simple to the two sons, and hence we say that there is nothing in the language of this will to justify the construction that an estate tail was limited by express words. Such a construction is only reached because the plain and ordinary signification of the words "to them and their heirs and assigns forever" puts them in a supposed 255 conflict with the subsequent contingent disposition of the land in suit. But there is no such conflict-the obvious purpose was to give the two sons a fee simple in the land, defeasible if they should die without issue or children living at the death of the survivor of the two sons named, and if they should die leaving no issue living at the death of either or both, then an executory devise over to the other heirs of the testator, a disposition entirely legal, if the testator had not already annexed to the fee devised to them the absolute power of disposal, but as that contingency never happened and never can happen, because both of said sons left children, the plaintiffs in this case, surviving them, the fee simple became absolute in the two sons and their grantees, the defendant and others, even if the power of sale was not superadded.

But we are now brought to the further contention that a fee tail was devised by implication. We concede that under the statute de donis a fee tail may be created by implication, and in this case, if a fee tail is to be implied, it must be by construing the words "dying without issue" to mean an indefinite failure of issue, and that consequently the executory devise over is void for remoteness. Such was the case of Farrar v. Christy, 24 Mo. 453. That was the construction of a deed made in 1832 in which the grant was "to have and to hold the premises aforesaid with all the appurtenances thereto belonging to them and their heirs forever, upon condition that should either of the grantees herein named die without legal heirs of their body, the survivor shall inherit the whole of the property hereby con

veyed; and should both die without leaving heirs as aforesaid, the property conveyed shall revert to the other legal heirs of the said William and Martha T." It was conceded that these words, "should die without legal heirs of their body," created a fee tail by implication under the statute de donis. At the date of that decision, morover, section 6 of chapter 32 of the Revised 256 Statutes of 1845 had not been enacted, and the words "dying without issue" without further limitation at the time were held and construed by both the English and American courts to mean an indefinite failure of issue, and by implication to create a fee tail in the first taker or ancestor named. It is too plain for discussion that the majority of the court in Farrar v. Christy, 24 Mo. 453, did not and could not have had section 6 of chapter 32 of the Revised Statutes of 1845 under consideration in deciding that cause. Judge Leonard dissented.

Harbison v. Swan, 58 Mo. 147, is also relied on as controlling the construction of this will. It is true that the will in that case was made in 1846 and the testator died in 1852, but it is to be observed that this court in deciding that case based its decision on Farrar v. Christy, 24 Mo. 453, and the common law, and made no reference whatever to section 6 of chapter 32 of the Revised Statutes of 1845, and it cannot be said that said section was construed by the court. The will was construed with reference to the common law and the act of 1825 alone, and the attention of the court was not called to the act of 1845 by counsel in the case. Moreover, there were no words in that will from which a power to sell could be implied, and in that respect it differs materially from the will under consideration.

Conceding that prior to the act of 1845, the words "dying without issue" had been construed to mean an indefinite failure of issue at any time, and that many of the courts of England and of this country held these words created an estate tail by implication, what effect is to be given these words since the act of 1845, section 6, chapter 32, went into effect? Obviously, they were enacted to settle forever the construction to be placed upon the words "dying without heirs" or "without issue" in the future by our courts, and that they should not be construed in deeds and wills thereafter made to mean an indefinite failure of issue, and by implication to create estates tail, but henceforth they should be construed 257 to mean "heirs or issue living at the death of the person named as ancestor." Granting that if section 5 of the act of 1845 stood alone, those words would create an estate tail under the statute de donis, and that the case of