The opinion of the court was delivered, by
Read, J.— This case has been discussed at great length in the court below, on the original report of the auditor, and in the very learned opinion of Judge Brewster overruling the auditor. This makes it unnecessary to enter into a detailed examination of the numerous authorities cited by the counsel on both sides. John Rex, by his will, devised two tracts of land to his son, Joseph Rex, his heirs and assigns for ever, which was followed by this clause: “ Item. All the rest and residue of my personal property, of every description, not hereinbefore willed and bequeathed, I give and bequeath unto my sons, William and Joseph Rex, share and share alike, and to their heirs and assigns for ever.” The estates thus given to Joseph Rex were absolute and unqualified, and both species of property are placed on the same footing. Then comes the clause which occasions the present dispute: “Item. In case my said son Joseph, who is now in a declining state of health, shall happen to dye intestate and without issue, then, and in that case, I give, bequeath and devise the estate, real and personal, willed, bequeathed and devised unto him, to my son, the said William Rex, and to his heirs and assigns for ever, *155subject to the payment of one hundred and fifty pounds to each of my other sons, the said Jacob and John Rex, or to their respective heirs and assigns.”
The testator died in 1802. William Rex died in March 1845. Joseph Rex remained in possession of the land devised to him until his death in 1859. Both brothers died intestate, unmarried and without issue.
It is unnecessary to consider whether the language used indicated a definite failure of issue, either in the lifetime of the testator or of William, because the words “ shall happen to die intestate” negative entirely the idea that the clause gives only an estate tail to Joseph, with remainder to William. There is first an unqualified gift or devise in fee simple, and then a condition entirely repugnant to this estate upon which this is to go over to William. The result of the authorities is succinctly stated by Jarman on Wills, vol. 2, p. 15, thus: “A power of alienation is necessarily and inseparably incidental to an estate in fee. If, therefore, lands be devised to A. and his heirs upon condition that he shall not alien or charge them with any annuity, the condition is void. And in like manner, a condition or conditional limitation annexed to a devise in foe, purporting to give the property over- in case the devisee shall die intestate, or shall not part with the property in his lifetime, is repugnant and void; since, in the first case, it would not only defeat the rule of law, which says that upon the death intestate of an owner in fee simple, his property shall go to his heirs at law, but also deprive him of the power of alienation by act inter vivos, and in the second case it would take away the testamentary power from an owner in fee.”
And the same author, in the same volume, page 19, says, “It is clear, therefore, that if a legacy were given to a person, his executors, administrators and assigns, an injunction not to dispose of it, though followed by a limitation over in case of non-compliance, the restriction would be void, and a gift over, in case of the legatee dying without making any disposition, would he also rejected as a qualification repugnant to the preceding absolute gift.” The same doctrine is stated by Justice Williams, in the second volume of his treatise on “ The Law of Executors and Administrators,” p. 176. The principles thus stated are supported by all the English and American cases cited in the argument, to which may be added Annin’s Executors v. Vandoren’s Administrator, 1 McCarter Ch. R. (N. J.) p. 135, decided by Chancellor Green.
Agreeing therefore with the court below, the decree is affirmed at the costs of the appellant.
Decree affirmed.