(dissenting). — I think it must be conceded that the will gives the wife, Mary Podaril, a life estate, coupled with absolute power of disposition “to whomsoever she may see (fit) or think best to do during her lifetime.” Such grant was not necessary to the creation of a life estate. She had the right to sell or dispose of her life estate as a necessary incident thereto. The testator had some purpose in granting this absolute power of disposition. That purpose we must arrive at from the established canons of construction, which are so firmly imbedded in' our jurisprudence that every one is presumed to have knowledge thereof, and to act with reference thereto. *271The fact that the power of disposition is conferred, not in an independent paragraph, as the majority would have it, but in a complete sentence, properly punctuated, is not, in my judgment, of any importance. The majority say that, as the power is limited to the natural life of the devisee, it is qualified, and for that reason does not enlarge . the estate devised into a fee. This proposition is not plain to my mind. I do not just see how one can sell and convey an estate after death. Real property may pass by descent or by purchase. Property which passes by will does not descend. That a devise is a purchase is written on the hornbook of the law. . A will or a deed must be made during the lifetime of him who executes it. A will speaks from the death of the testator, but it is nevertheless the act of the testator, and must be executed during his lifetime. I do not think the power of disposition contained in the will is limited. On the other hand, it seeins to me to be absolute and unlimited. The testator evidently intended to dispose of his estate by will, and it will be noticed that he made -no disposition of the fee, if the majority opinion is correct. Had he made a disposition of the remainder, I would then have less hesitancy in'argeeing with my Brethren. Weaver v. Weaver's Ex'rs, Ky. (18 S. W. Rep. 228, 36 Am. St. Rep. 604); Ladd v. Chase, 155 Mass. 417 (29 N. E. Rep. 637); Barnes v. Marshall, 102 Mich. 248 (60 N. W. Rep. 468.) That he does not do so is to my mind quite significant. Certainly it has an important bearing on the question of intent. True, in the first sentence of the will the devise seems to be^ for life, but to that estate is annexed absolute power of disposition “to whomsoever she may think best to do.” What, then, is the effect to be given a devise of real estate for life, with absolute and unlimited pi w m of disposition. Our own cases are not entirely clear on this subject, but we have never, I think, departed from this doctrine: that such a power added to the life estate in the manner indi *272eated by this will creates an estate in fee. It will further be noticed that the widow is given power to sell and convey the same; meaning, as I think,- all the -property belonging to the testator, both real and personal. The grant of absolute power and dominion over the property necessarily carries with it absolute ownership thereof. In re Burbank's Will, 69 Iowa, 381. Time and again we have said that, if the first taker of property under a will is given full power of disposition, he must be considered the absolute owner thereof. Rona v. Meier, 47 Iowa, 609; Alden v. Johnson, 63 Iowa, 125; Killmer v. Wuchner, 74 Iowa, 359; Pellizzarro v. Reppert, 83 Iowa, 498; Halliday v Stickler, 78 Iowa, 388; Law v. Douglass, 107 Iowa, 608; In re Barrett's Will, 111 Iowa, 570; Williams v. Allison, 33 Iowa, 78. As said in Benkert v. Jacoby, 36 Iowa, 273: “In order that the widow may dispose of the fee, she must be invested with that title.” This, to my mind, seems very clear, and the only difficulty is to determine whether or not the power is annexed as a separate gift, in which the property undisposed of may be devised to another, or a devise of property with absolute power of disposition in the first taker. Was the power of disposition in this case,a separate gift? I think not. It is not the remainder which the devisee is authorized to sell and convey, as in Collins v. Wickwire ( Mass.), 38 N. E. Rep. 365, and some other cases relied upon by the majority, but all the real estate and personal property theretofore owned by the testator. The majority admit, as I understand it, that the widow is given full power to dispose of' the fee, but seem to think that this is a separate gift, because contained in another sentence of the will. I do not think punctuation should be given this effect. Had the will made the devise just as it does, and proceeded, “with privilege to sell or convey the same to whomsoever she may see fit or think best,” it would seem there would be no separate gift. The language of the will in Law v. Douglass, supra, gave the *273devisee power to sell the real estate, and we said, “Having given her the property, with unlimited power of disposition, nothing remained to be disposed of to another.” In Hambel v. Hambel, 109 Iowa, 459, the widow was given power to sell and convey all testator’s real and personal property, but a remainder was also disposed of. It will be observed that the widow in that case was not given power to make a will, except as that power might be inferred from the power given, but we held that the widow took the fee; quoting a statement from Halliday v. Stickler, 78 Iowa, 388, which has become almost a commonplace with the profession, as follows: “If the first devisee has power, by the terms of the will, to dispose of the property, he must be considered the absolute owner.” This was said, it will be noticed, in a case where there was a devise of the remainder; and we further added in that case, ‘ ‘ and any limitation over is void for repugnance.” In the Halliday Case, we said: “If a life estate was intended to be devised, the whole of the real estate would be left at the death of the devisee, and he could not by sale enlarge his right thereto.” In re Proctor's Estate, 95 Iowa, 172, there was a limited power of disposition, and we held the devise was for life; but in that case we again recognized the rule that, where the power of sale is absolute, the estate devised is a fee, and not limited to the life of the first taker. It is difficult to see how one may sell a greater estate than he has. If the devisee may sell and convey a fee, he cerbainly must be possessed of such an estate, or be given a power independent of the estate to make the transfer. I do not question the rule that one may have a power coupled with an estate, but when the power is conferred as a part of the estate granted, or is a description of that estate, there should be no doubt, I think, under our decisions, of the character of the estate granted. In the Pellizzarro Case there was a devise for life in express terms, but *274this was followed by these words: “To'be used and disposed of in such manner as she sees fit, and at her death, if any remains,” etc., “it shall go to my children.” Here there was not only an express limitation of the estate, but an attempt at disposition of the remainder, which, if the majority are correct, was nothing more than a life estate, with power of disposition as a separate gift, and an express disposition of the remainder. But in that case we again said: “It'is the rule that a devise of property in general terms, with power of disposal creates an estate in fee, and any limitation over is void for repugnancy.” It will be noticed that this language was used in a case where the devise to the first taker was expressly of a life estate.
I will not take time to quote from all the cases where the quoted expression has been used. They are so numerous and familiar that it would be a work of supererogation to do so. Some of the decisions in which it has been used are cited in this dissent, and others may easily be found. True, in some of them the language may be said to be dictum, but dictum oft repeated may have the force and effect of law. If this be true, then the principle for which I contend is certainly the law of this state. Other jurisdictions are in conflict on the proper rule to be applied in such cases, and I will not take the time necessary to cite and review these authorities. Many of them will be found in Law v. Douglass, supra, where the whole matter was quite fully considered. Suffice it to say that I am not without support in respectable authority. See Bolman v. Lohman, 79 Ala. 63; Judevine's Ex'rs v. Judevine, 61 Vt. 587 (18 Atl. Rep. 778, L. R. A. 517); Basford v. Street, 16 Ves. Jr. 135; May v. Joynes, 20 Grat. 692; Hood v. Bramlett, 105 Ala. 660 (17 South. Rep. 105); Dillard v. Dillard's Ex'r, 78 Va. 208; Hershey v. Bank, 71 Minn. 255 (73 N. W. Rep. 967); Bradley v. Carnes, 94 Tenn. 27 (27 S. W. Rep. 1007, 45 Am. St. Rep. 696); In re Moehring, 154 N. Y. 423, (48 N. E. Rep. 818); In re Jones *275[1898] I Ch. 438, s. c. 78 Law Times (N. S.) 74; Barcley v. Platt, 170 Ill. 384 (48 N. E. Rep. 972). When the majority concede that the first taker has power not only to dispose of her life'estate, but the fee as well, it seems to me that the conclusion I arrive at necessarily follows, if we are to give effect to our previous decisions. This is especially true where, as here, there is no limitation over, and no-attempt to dispose of the remainder. We must assume, I think, that the testator knew of our previous holdings,, and that he attempted to dispose of his entire estate by will. Had he looked át our cases, and read the oft-asserted expression which I have quoted, I have no doubt about what he thought he was devising to his wife. The effect of a limitation or of the gift of a remainder is fully explained in Van Horne v. Campbell, 100 N. Y. 287 (3 N. E. Rep. 316, 771, 53 Am. Rep. 166), and cases therein cited. If there is a limitation for life, with power of appointment, simply, in the life tenant, and a .remainder over in default of its exercise, nothing but a life estate, according to the majority of the cases, is devised. But if the power is not of appointment but is annexed to the primary estate devised, so that the estate con-v y.ed pursuant to the power takes effect out of the interest of the first taker, then a fee is created, and any limitation over is void. The distinction.made is between an estate passing from the grantor of the power, in virtue of the appointment, and a power in the devisee or first taker to sell the property as his own. Whenever there is a devise of what remains after the exercise of the power, it is clear that, as a general rule, the estate conveyed or devised by the will is that reserved by the devisor after the devise of the life estate. But where there is no devise of the' remainder, but full disposition is made of the property, accompanied with absolute disposing power in the first taker, nothing remains, and a fee is created; The distinction is between an interest and' a trust, which, I *276admit, is not very clear; but, in reason, there seems to me to be no distinction between absolute power of disposition and absolute ownership, especially where the power is to be exercised by the party for his own benefit. That Mary A. Bodaril had power to dispose of a fee during her life, as part of the estate granted to her', seems to me to be clear; and, in view of our previous holdings,T think the judgment should be affirmed.
Bishop, J. — I concur in the dissenting opinion of Deemer, J.