(dissenting) — I cannot concur in either the opinion or the. decision of the majority. I cannot believe that my Brothers have rightly conceived the case made by the will. While the majority opinion states some of the facts which, standing alone, would give equity to the bill, it does not state all the facts, nor any of those which, to my mind, conclusively show that there is no equity in the bill.
These facts are that the bill is filed by the heirs expectant against a remote grantee of their ancestor, and alone seeks to change the character of the estate granted from a fee to a life estate during the life of one of the grantors. The whole claim of the complainants is based upon a will of their grandfather, devising the lands in question to their mother, who was a daughter of the testator. That part of the will, relating to the lands in question, reads as follows: “I will, devise and bequeath *296unto my daughter, Sarah E. Nabors, the land owned by me and known as the Lon Martin place, to be held by her during her life for her own benefit and behoof, and she is authorized to sell or dispose of the same at any time for the purpose of reinvesting the proceeds to be held and treated the same as original property bequeathed, and the said Sarah T. is authorized to dispose of said legacy at her death by will or devise if she chooses; otherwise at her death it shall descend to her children or heirs at law.” It therefore clearly appears that the plaintiffs do not and cannot in any event take under the will, but that if they ever take they take, and must take, only by descent or inheritance from their mother, and not by devise under the will of their grandfather.
They can have no more interest in these lands than they have in any other lands owned by their mother,, whether acquired by her by purchase, descent, or by devise. If there could be any doubt about this, the will itself removes this doubt, by expressly saying that, in the event their mother does not dispose of it by grant or devise, it shall descend to her children or heirs. This last clause of the quoted section of the will is, of course,, wholly superfluous. It neither confers nor takes away any rights that complainants or any other person would have but for this clause; but it does emphasize the fact by stating that whoever takes after her death shall take as heir of the devisee, and not by grant or devise from the grantor or testator.
Construing the quoted clause of the will in connection with the other parts of the instrument, and with the averments of the bill, it is made certain — almost beyond reasonable doubt — that the only purpose of the conditions of the devise in question was to cut off the marital rights of the husband of the devisee; and, the bill show*297ing that he is dead, and that the wife is still living, that question is of course eliminated.
The bill also shows that the devisee', Mrs. Nabors, had disposed of the land in question, and her deed so disposing of a part of it is made an exhibit to the bill, and it recites that the land was disposed of in accordance with the will, and for the purpose of reinvestment. The deed recites, in substance, the above-quoted provision of the will, which is as follows: “Know all men by these presents, that whereas, Nathaniel Hawkins deceased did devise to Sarah E. Nabors by will which has been duly established and admitted to probate in the probate court of Jefferson county, and recorded in Will Book A, page 413, the hereinafter described land, and did in and by said will expressly empower and authorize her, the said Sarah E. Nabors, ’to sell and dispose of the same, at any time for the purpose of reinvesting the proceeds; and whereas, as the said Sarah E. Nabors deems it to be to her interest and advantage to sell the hereinafter conveyed lands., under said power and by virtue thereof for said purpose: Now, in consideration of |7,085.00, the receipt whereof is hereby acknowledged, I, Sarah E. Nabors, joined by my husband, French Nabors, as a grantor with me, do hereby grant, bargain and sell unto Lucien G. Pettyjohn, and his heirs and assigns forever, in fee simple absolute, that tract of land lying in Jefferson county, Alabama, which is described as,” etc.
The bill also shows that the devisee, Mrs. Nabors, is still living, and that she yet has the power and right to dispose of this land in accordance with the power, if she has not already done so, by sale, for reinvestment, or by devise, and consequently, until her death, no human agency, except herself, can know whether she will so dispose of it or not. In no. event do or can these com*298plainants have any interest in or right to these lands. The will, as before stated, expressly removed all doubt, by expressly providing that her heirs or children shall take from the mother by descent, and not as purchasers or devisees from their grandfather. A living person does not have heirs, nor can it be known who will be his heirs until the ancestor is dead, nor what such heirs will or may take by descent or inheritance, until the death of the ancestor. He or she may dispose of any part, or the whole, by grant, gift, or devise.
It is clear to my mind that Mrs. Nabors took a fee in these lands by virtue of section 3428 of the Code. This is the view the learned chancellor (once a justice of this court) took of the case, and his opinion, to my mind, is conclusive. It is as follows: “By the last will of Nathaniel Hawkins, his daughter, Sarah E. Nabors, is given the power to devise the land in question, and this disposition is unqualified, and is not accompanied by any trust. Therefore, irrespective of the power of sale expressed in the will, Mrs. Nabors became, as to her vendees, invested with the fee in the land. — Code, § 3423; Hood v. Bramlett, 105 Ala. 660 (17 South. 105.) The defendant succeeded to the title of Minth orne Woolsey, who from the bill appears to- have purchased the land for value, under conveyances coming consecutively from Mrs. Nabors; and hence, under the doctrine above referred to, complainants have no remainder or other interest in the land of which they can be availed as against the defendant’s title. These considerations lead to the conclusion that the bill is without equity.”
The majority opinion attempts to distinguish the case at bar from that of Hood v. Bramlett, 105 Ala. 600, 17 South. 105; but I submit that it is a distinction without a difference. The will in question does not attempt to dispose of any remainder, but, making a much stronger *299case than that of Hood v. Bramlett, it expressly provides that if these plaintiffs, or the class to which they belong, take at all, it shall he by descent from their mother, and not by devise from their grandfather. It is true that the will does give the land to Mrs. Nabors “during her life, and for her ovni benefit and behoof; but it also authorized her, during her life, to dispose of the fee, by sale or by will, and directed that in case of sale it should he for reinvestment, and that the proceeds should be treated as the original property bequeathed; that is, for “her own benefit and behoof,” not for that of any remainderman, because the will expressly provides that if she does not dispose of it during her life, it shall at her death descend. How could it descend, unless she owned it? If she had merely a life estate, that was gone at her death, and there would be nothing to descend. How could she convey or devise the fee, if she did not own the fee? Only by the power of will? But if it was the intention of the testator to devise to her only a life estate, and he yet authorized her to dispose of the fee, by deed or devise, for “her own use and behoof,” both the common law and the statute converted the' life estate devised or granted into a fee, as against creditors or purchasers of the life tenant. — Code, §§ 3422-3440, and notes thereto. The last clause in section 3426 covers' this case like a blanket. No case can he conceived to which that clause would more clearly apply than it would to the case at bar. It provides that, “where a general and beneficial power to devise the inheritance is given to a tenant for life or years, it is absolutely within the meaning of the last two sections.” The attempted distinction in the majority opinion that this case does not fall within the operation “of the last two sections” is not well taken; it is’entirely too technical; it is hunting for something to defeat the Avill of the testator and the Legislature.
*300It is very true that the subject of “contingent remainders,” “executory devises,” “powers,” users,” and “trusts,” in connection with deeds and devises, are easily the most abstruse and the most abounding in mere technical difficulties of all the questions which appear in the reported cases and in the text-books. This is true, because they depend upon distinctions that are highly technical, artificial, and refined. Added to this is the undeniable fact that upon some points there is found a most distressing diversity of opinion among the most eminent jurists and text-writers. But, to my mind, this case could and ought to be decided upon those fixed rules of law in Avhich all authorities concur, Avithout involving those vexed questions upon which the authorities are so. much divided. It is true that I have probably said more on these subjects than is said in the majority opinion; but it is only in my attempt to show that the majority opinion is wrong, not that it is necessary to a correct decision.
This case could, and in my judgment should, be affirmed, because the bill and the exhibits, the briefs of counsel, and the majority opinion, reversing the decree of the lower court, all show that these complainants do not now and never have had any legal or equitable estate or interest in the lands the subject of this suit. The most that they claim is an expectancy, a mere possibility, that they may have an estate or interest in the future. Courts can deal only with facts, not Avith expectancies or possibilities, when unconnected with any existing rights, estate, or property in the subject-matter of litigation.
The bill and the majority opinion conclusively show that it is wholly within the power and discretion of a third party to prevent the possibility of plaintiffs ever having any interest whatever in, to, or against this de*301fendant, and that it cannot be known whether this third party will exercise this power until her death; and, of course, no one can know when she will die. Is it possible that a plaintiff can maintain a suit in a court of law or of equity when his pleadings and claims conclusively show that he has not then, and never has had, a legal or equitable title, claim, right, or demand to or against the subject-matter or the defendant? I believe that this is the only case in the history of the world that has ever so decided.
If these plaintiffs had any vested interest with which a court could deal, the mere fact that the time of possession and enjoyment was postponed until an uncertain date would not prevent the court from protecting such vested interest. Such suits are often maintained hy remaindermen and revisioners; but in all such cases they have, and must have, at the beginning of the suit a vested interest, claim, or demand, and it is only the time of possession or enjoyment that is postponed, or uncertain, or contingent.
The will in question having been made since the Code of 1852, it is within the Code provisions on this subject, and is therefore relieved of some of the difficulties which might have attended the case as to contingent remainders. Section 1301 of that Code (section 3398 of the Code of 1907) provides that: “No estate in lands can be created by way of contingent remainder; but every estate created by any will or conveyance, which might have taken effect as a contingent remainder, has the same properties and effect as an executory devise.” Therefore, since the Code of 1852, contingent remainders must take effect, if at all, as executory devise; if they cannot SO' take effect, they are void. Surely there can be no doubt that these plaintiffs did not and cannot take in this case as by an executory devise.
*302Our Code defines remainders as follows:
“An estate in remainder is one limited to be enjoyed after another estate is determined, or at a time specified in the future. An estate in reversion is the residue of 'an estate, usually the fee left in the grantor and his heirs after the determination of the particular estate which he has granted out of it. The rights of the reversioner, are the same as those of a vested remainderman in fee.” — Section 3400.
“Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen.” — Section 3401.
The Supreme Court of the United States defines remainders and an executory devise as follows: “A vested remainder is where a present interest passes to a certain, and definite person, but to be enjoyed in futuro. There .must be a particular estate to support it. The remainder must pass out of the grantor at the creation of the particular estate. It must vest in the grantee during the continuance of the estate, or eo instan ti, that it determines. A contingent remainder is where the estate in remainder is limited, either to a dubious and uncertain person, or upon the happening of a dubious and uncertain event. A contingent remainder, if it amount to a freehold, cannot be limited on an estate for years, nor any estate less than freehold. A contingent remainder may be defeated by the determination or destruction of the particular estate before the contingency happens. Hence trustees are appointed to preserve such remainders. An executory devise is such a disposition of real property by will that no estate vests thereby at the death of the devisor, but only on a future contingency. It dif*303fers from a remainder in three material points: (1) It needs no particular estate to support it. (2) A fee simple or other less estate may be limited by it, after a fee simple. (3) A remainder may be limited, of a chattel interest, after a particular estate for life in the same property.” — Doe, Lessee of Poor v. Considine, 6 Wall. 474, 475, 18 L. Ed. 869.
That great Chief Justice — Shaw, of Massachusetts— in speaking of the difference between a remainder and an executory devise said: “The essential difference in the quality of the estate, between a remainder and an executory devise, is that the former may be barred at the pleasure of the tenant in tail by a common recovery, or, in our state, by a conveyance by deed; but he who holds by force of an executory devise has an estate above and beyond the power and control of the first taker, who cannot alienate or change it, or prevent its taking effect, according to the terms of the will, upon the happening of the contingency upon which it is limited. It does not depend upon the particular estate, but operates by way of determination of the first estate limited, and the substitution of another in its place.” — Nightingale v. Burrell, 15 Pick. (Mass.) 110.
In the case at bar, not only the character and the quantum of the estate to be taken by the plaintiffs, but also the fact as to whether they take at all, depends solely upon the will and pleasure of the life tenant, who is yet living, as the bill and the majority opinion both recite. This being so, it is certain that they do not, and can never, take as under an executory devise. Having no present interest, right, claim, or demand, but merely the possibility of taking, as heirs of their mother, how they can have standing in a court of equity, to assail a conveyance of their mother, is more than I can understand..
If any one on earth can complain of the matters set forth in this bill, it is the mother of these complainants, *304and she is not complaining, and is not a party to this suit; but if the relief prayed in this bill is ever granted she will be decreed to have breached a trust, thus paving the way to make her liable to her grantees in a subsequent suit of covenant as for breaches of warranties.
There are other reasons, equally conclusive to my mind, why this bill has no equity, and why no relief can or should be awarded under its prayer; but those above stated I think are sufficient.
But for the opinion and decision in this case, I would say that it is a universal rule of pleading that a plaintiff must always show a present title, right, claim, or demand, as distinguished from a future one, or he shows no right of action. This is the rule as stated by Messrs. Chi tty, Gould, Stephens, Heard, Andrews, Story, Adams, Pomeroy, and all other text-writers which I have examined; and, so far as I know, they state no exceptions to it. I am likewise unable to find a reported decision of any court to the contrary of the rule.
Here plaintiffs not only fail to show any present title, claim, or demand, but conclusively show that their sole claim is that they will probably have a right or title in the future, if the life tenant does not dispose of the land, which she has a right to do; and that if she does dispose of it, as she is authorized to do, then they will not have any right in the future. I ask the question in all seriousness: How is it possible for a court to remove a cloud from a title when there is no title, and when it is not certain, and cannot be made certain, that there will ever be in the future any such title from which to remove a cloud? If the court undertakes to do what is prayed in- this bill, it cannot do it, for the simple reason that it is impossible. A decree by the chancery court, or by this court, as prayed in this bill, would not be worth the paper upon which it is written. It would itself be nothing but a cloud on title and on the records.