The case made by the bill of complaint is based on the will of Samuel Carusi and upon the deed of trust alleged to have been executed and delivered July 18, 1872. The contention of complainant is that, by the deed, Lewis Carusi conveyed to Samuel Carusi all his real estate in trust to convey the same to such person or persons as the said Lewis Carusi might 'by his last will and testament, or other paper writing under his hand and seal, by two persons witnessed, designate and direct;' and that, although the will was revoked by the trust deed, it was nevertheless effectual as a designation of the persons to whom said real estate was to be conveyed by Samuel Carusi, the trustee; and that the complainant and her sister, Genevieve Carusi, were the persons who were so designated by the will. It is clear, therefore, that complainant's case can derive no aid from the declarations of the testator, Lewis Carusi, alleged to have been made before and after the execution of his will, in relation to the disposition which he intended to make of his property. It must stand or fall upon the designation made in the will. It is clear, also, that the will is to receive precisely the same construction, as an instrument designating the beneficiaries of the trust deed, as it would have received as a last will duly proven and recorded. The question is, therefore, what estate did the testator intend to give the complainant by his will of March 18, 1872? This will gives-First, an estate in fee-simple to Samuel Carusi; it contains, second, the expression of a hope and trust that he will not unnecessarily diminish the estate; and, third, it gives to the nieces of the testator so much of his estate as Samuel Carusi shall not at his death have disposed of by sale of devise. We have, then, devised to Samuel Carusi an estate in fee-simple, with an absolute power of disposition either by sale or devise, clearly and unmistakably implied. Therefore, according to the adjudged cases, the limitation over to the niece of the testator is void. The rule is well established that, although generally an estate may be devised to one in fee-simple or fee-tail, with a limitation over by way of executory devise, yet when the will shows a clear purpose of the testator to give an absolute power of disposition to the first taker, the limitation over is void.
Thus, in the case of Atty. Gen. v. Hall, Fitz G. 314, there was a devise of real and personal estate to the testator's son and to the heirs of his body, and that if he should die leaving no heirs of his body, then so much of the real and personal estate as he should be possessed of at his death was devised over to the complainants in trust. The son in his life-time suffered a common recovery of the real estate, and made a will as to the personal estate, and died without issue, and a bill was filed against his executor to account. It was held by Lord Chancellor KING, aided by the master of the rolls and the chief baron of the exchequer, that the devisee was tenant in tail of the real estate, and had barred the plaintiffs by the common recovery, and that the executrix was not to account for the personal estate to the persons claiming under the limitation, for that was void as repugnant to the absolute ownership and power of disposal given by the will.
In the case of Ross v. Ross, 1 Jacob & W. 154, a limitation over was declared void because it was limited upon the contingency that the first taker did not dispose of the property by will or otherwise. See, also, Cuthbert v. Purrier, Jacob, 415; Bourn v. Gibbs, 1 Russ. & M. 615; Holmes v. Godson, 8 DeGex, M. & G. 152.
The American cases are to the same effect. Thus, in Jackson v. Bull, 10 Johns. 19, Charles Bull died seized of the premises in question. By his last will, after devising a certain lot of land to his son Moses, he declared: 'In case my son Moses should die without lawful issue, the said property he died possessed of I will to my son Young, his lawful issue,' etc. It was held that the limitation over was void, as being repugnant to the absolute control over the estate which the testator intended to give.
In Ide v. Ide, 5 Mass. 500, the devise was to the testator's son Peleg, his heirs and assigns, with the following provision: 'And further, it is my will that if my son Peleg shall die and leave no lawful heirs, what estate he shall leave to be equally divided between my son John Ide and my grandson Nathaniel Ide, to them and their heirs forever.' Held, that his limitation over to John and Nathaniel Ide were void because inconsistent with the absolute, unqualified interest in the first devisee.