(dissenting). — Ejectment for ten acres in the north part of lot 3 of a survey and subdivision of the west half of the northwest corner of section 12, township 44, range 5 east, in St. Louis county; Robert A. Yeates is the common source of title. Plaintiffs claim as the heirs at law of Catherine Cornwell, and defendant claims as grantee, by mesne conveyances, of J ames Oornwell, deceased, husband of Catherine Cornwell.
On October 15, 1859, Yeates and wife executed and •.delivered to John A. Goodlett, trustee, the following deed:
“This deed, made and entered into this 15th day of October, 1859, by and between Robert A. Yeates and Sophie Yeates, his wife, of, etc., parties of the first part, and John A. Goodlett, of, etc., party of the second part, and Catherine Cornwell, wife of James Cornwell, of, etc., party of the third part, witnesseth: That the said parties of the first part, in consideration of the sum of thirty-one hundred and seventy-two and 40-100 dollars to them in hand paid by the said party of the second part, receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto *568tbe said party of tbe second part, and bis beirs and assigns, a certain tract or parcel of land situated, etc., to have and to bold tbe same, with all tbe rights, privileges and appurtenances thereto belonging or in any wise appertaining unto him, tbe said party of tbe second part, bis beirs and assigns forever. In trust, however, to and for tbe sole and separate use, benefit and behoof of said Catherine Cornwell, wife of «aid James Cornwell; and tbe said John A. Goodlett, party of tbe second part, hereby covenants and agrees to and with tbe said Catherine Cornwell that be will suffer and permit her without let or molestation, to bave, bold, use, occupy and enjoy tbe aforesaid premises, with all tbe rents, issues, profits and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said husband and wholly free from bis control or interference, and from bis debts in such manner as she may think proper; and that be will at any and all times hereafter at the request and direction of tbe said Catherine Cornwell, expressed in writing, signed by her or by her authority, bargain, sell, mortgage, convey, lease, rent or otherwise dispose of said premises, or any part thereof; and will pay over tbe rents, issues, profits and proceeds thereof, which may come into bis bands, and not otherwise liable, to her, tbe said Catherine Cornwell, in such manner as she shall in writing direct or request; and that be will, at tbe death of said Catherine, convey or dispose of tbe said premises or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof in such manner to such person or persons and at such time or times as tbe said Catherine Cornwell shall by her last will and testament, or any other writing signed by her or by her authority, direct or appoint; and in default of such appointment then, that he will convey said premises to said James Cornwell, his heir or assigns.”
On the trial in the circuit court the parties made the following admissions:
*569“1. That the defendant is now in possession of the property and was at the institution of this suit.
“2. That Mrs. Catherine Cornwell died intestate, December 23rd, 1860, without having made any conveyance or appointment of said real estate under said conveyance in her lifetime.
“3. That James Cornwell died December 25th, 1889, and the plaintiffs are Mrs. Catherine Cornwell’s children and grandchildren and her heirs at law, and are also the only children and heirs of James Cornwell.
“4. That the plaintiffs, Frederick J. Cornwell and Catherine Holmes, wife of James C. Holmes, are the children of Catherine Cornwell, and that Charles J., Frederick L. and Benjamin S. Cornwell, infant plaintiffs, are the children of Benjamin Cornwell, who died prior to the institution of this suit, and who was the son of Catherine Cornwell; and these plaintiffs are represented in this suit by their next friend, Helen Y. Cornwell, plaintiff and widow of said Benjamin Cornwell, deceased, who was duly appointed their next friend in this case prior to the institution of this suit.
“5. That James Cornwell and Catherine Cornwell were husband and wife at and prior to the date of the deed of Yeates to G-oodlett.
'“6. That plaintiffs are the only heirs at law of Catherine Cornwell.
“7. That the value of the monthly rents and profits of the premises is, and since James Cornwell died has been, $10.”
Defendant read in evidence a decree of the St. Louis Land Court, rendered at the March term 1862, in case of James Cornwell, plaintiff, against John A. Goodlett, defendant, directing the defendant to convey the property in controversy to the plaintiff, and the deed made in pursuance thereto, and mesne conveyances from Cornwell to Wulff.
*570The circuit court rendered judgment for plaintiff, in conformity to the opinion of this court, when this case was here on former appeal, Cornwell v. Orton, and Same v. Wulff, 126 Mo. 355, and defendant appealed.
I.
The true construction of the deed above set out determines the lights of the respective . parties. Plaintiffs contend that the deed conveyed a fee simple estate to Catherine Cornwell, and that as a fee can not be limited on a fee, the direction to the trustee to convey to. James Cornwell, in a default of a disposition by Mrs. Cornwell, by deed or will, being repugnant to the creation of the fee in Mrs. Cornwell, is void.
Defendant claims, first, that the limitation to James Cornwell is good as a conditional limitation, and that although the deed created an equitable fee simple in Mrs. Cornwell, the limitation of a, fee to James Cornwell after the termination of the' estate of the first taker is valid in equity; and, second, that under the decisions in this State the intention of the grantor must be observed in preference to any mere technical construction, and that to give effect to that intention, the estate of Mrs. Cornwell must be construed as a mere life estate, and that of Mr. Cornwell the fee limited upon the life estate.
Formerly there was a difference between the rules for the construction of wills and deeds. A deed required words of inheritance to pass the fee, while in a will no such formality was necessary. Now under our statute (G. S. 1865, Ch. 108, sec. 2; W. S. 1872, p. 1370, sec. 45; R. S. 1879, sec. 4004; R. S. 1889, secs. 8912 and 8834) they stand on the same footing, and a grant or devise by name carries the fee, without the term “heirs” or words of inheritance. [Green v. Sutton, 50 *571Mo. l. c. 192, and especially Waddell v. Waddell, 99 Mo. l. c. 345, and cases cited.]
Tbe true rule of construction of deeds and wills is'that tbe intention of tbe grantor or devisor shall be observed unless it conflicts with some inflexible rule of law. In Hogan’s Heirs v. Welcker, 14 Mo. l. c. 183, Napton, J., said: “If a deed admit-of two constructions, one of wbicb will support and tbe other defeat tbe intent, tbe construction wbicb will uphold tbe deed must be adopted, unless some inflexible rule of law interfere.” In Small v. Field, 102 Mo. l. c. 122, Sherwood, J., said: “And in construing wills, tbe polar-star of construction or exposition of a will, tbe meaning, tbe intention of tbe testator, is never to be lost sight of; single words, single clauses, will not be considered singly; but tbe whole instrument, its general scope and design as gathered from its four corners, will be taken into bonsideration, in connection with tbe surrounding circumstances, when properly admissible, in order that tbe intention of tbe testator may, if possible, prevail.” In Chiles v. Bartleson, 21 Mo. 346, LeoNaed, J., said: “Tbe intention of tbe testator is plain enough; tbe whole will must be read together, and effect given to every clause of it, and tbe words used are. to be understood in tbe sense indicated by tbe whole instrument.” In Carr v. Dings, 58 Mo. l. c. 406,Tories, L, said: “By a technical construction of the language used in tbe will, tbe bequest to tbe children might be so limited; but in construing wills, tbe intention of tbe testator is tbe object to be attained, and in order to ascertain this object, it frequently becomes necessary to look at tbe whole will, by wbicb it will sometimes become necessary to qualify particular clauses so as to bring them in harmony with tbe general intention, as tbe same may be indicated by other clauses.”# In Munro v. Collins, 95 Mo. l. c. 37, Braoe, J., said: “It will not be necessary, in order to determine this question, to consult authorities outside of our own State, and in examining them, *572it will be well to remember that courts, iu the construction of wills, endeavor never to lose sight of that leading canon: to ascertain, if possible, the true intent and meaning of the testator in any given case, as the same is gathered from the whole context of the will, viewed in the light of the circumstances under which it was made, and aim to give effect to that meaning unless some positive legal principle forbids.” In Redman v. Barger, 118 Mo. l. c. 573, Peace, J., said; “The first and last inquiry in the construction of a will is, what was the intention of the testator. To that intent technical rules must yield, and to it, other canons of legal hermeneutics must be subordinated.”
In the light of these principles we approach the crucial question in the case, to wit: did the deed from Teates to Goodlett vest a fee in Catherine Cornwell, or did it vest in her only a life estate notwithstanding the power of disposal given to her, or did it create a fee in her with a conditional limitation over to her husband.
The pi'evious adjudications in this State can not be harmonized. On the one hand it has been held by this court that if a deed or will gives an absolute power of disposal a fee is created, and as a fee can not be limited upon a fee, a limitation over in such an instrument is void for repugnancy, and that it is only in cases where the absolute power of disposal is qualified by express words limiting the first estate to a life estate that a limitation over is valid or effectual. Scott, J., in Rubey v. Barnett, 12 Mo. l. c. 7; Scott, J., in Norcum v D’Oench, 17 Mo. 98; Bliss, J., in Green v. Sutton, 50 Mo. l. c. 191, 192, concurred in by Wagner, J., but Adams, J., expressing no opinion; Hough, J., in State ex rel. v. Tolson, 73 Mo. l. c. 326; Hough, J., in Tremmel v. Kleiboldt, 75 Mo. l. c. 258; Henry, J., in Wead v. Gray, 78 Mo. 59; Black, J., in Cook v. Couch, 100 Mo. 29.
On the other hand it has been held by this court, that it is not necessary that the life estate be created by express *573words, blit that if an intention of the grantor or devisor, as gathered from the whole instrument, to limit the estate of the first taker to a life estate be evident, the snperadded power of disposal in the first taker will not raise the estate to a fee nor defeat the limitation over. Leonard, J., in Chiles v. Bartleson, 21 Mo. 344; Vories, J., in Carr v. Dings, 58 Mo. 400; Adams, J., in Straat v. Uhrig, 56 Mo. 482; Ray, J., in Russell v. Eubanks, 84 Mo. l. c. 82; Ray, J., in Bean v. Kenmuir, 86 Mo. l. c. 666; Eat, J., in Harbison v. James, 90 Mo. 411; Brace, J., in Munro v. Collins, 95 Mo. 33; Brace, J., in Redman v. Barger, 118 Mo. 568; Black, J., in Lewis v. Pitman, 101 Mo. 281.
Of the cases last referred to, the following have been cited approvingly in the following cases: Chiles v. Bartleson, 21 Mo. 344, by BlacK, J., in Cook v. Couch, 100 Mo. 29, and in Emmerson v. Hughes, 110 Mo. 630, though they were not followed by the judge in either instance; Carr v. Dings, 58 Mo. 400, by Henry, J., in Wead v. Gray, 78 Mo. 64, though he distinguishes the two cases; by Henry, J., in Russell v. Eubanks, 84 Mo. 86; by Sherwood, J., in Small v. Eield, 102 Mo. l. c. 123; by Brace, J., in Munro v. Collins, 95 Mo. 33; by Black, J., in Lewis v. Pitman, 101 Mo. l. c. 293; by Sherwood, J., in Harbison v. James, 90 Mo. 411, and by Macfarlane, J., in Jarboe v. Hey, 122 Mo. 348.
It is plain therefore that there is a most unusual and deplorable conflict of authority in our own State upon this question. It may fairly be said that the first group of cases follows the lead of Parsons, Chief Justice, in Ide v. Ide, 5 Mass. 500, and of Chancellor Kent, 4 Kent’s Com. (14 Ed.) *270; and are in line with Jackson v. Bull, 10 Johns. 19; Jackson v. Robins, 16 Johns. 587; Pells v. Brown, Cro. Jae. 590; Howard v. Carusi, 109 U. S. 725; Van Horne v. Campbell, 100 N. Y. 287; Fisher v. Wister, 154 Pa. St. 65; Ball v. Hancock’s Adm’r, 82 Ky. 107; Cushing v. Blake, 30 N. J. Eq. 689; Wright v. Pearson, 1 Eden, *119; Boswell v. Dillon, *5741 Drury, 291; Egerton v. Earl of Brownlow, 4 H. L. Cas., star page 210; Witham v. Brooner, 63 Ills. 344; Lynch v. Swayne, 83 Ills. 336; Dean v. Long, 122 Ills. 458; Gifford v. Choate, 100 Mass. 343; Kent v. Morrison, 153 Mass. 137; Combs v. Combs, 67 Md. 11; Hoxsey v. Hoxsey, 37 N. J. Eq. 21; Malson v. Doe on demise of Cooper, 4 Leigh. 408; Riddick v. Cahoon, 4 Rand. 547; Cook v. Walker, 15 Ga. 457.
All of these cases proceed upon the principle that the intention of the grantor or devisor must be observed but that a life estate must be created in express terms or the power of disposal will create a fee, and that an absolute power of disposal may be limited by the creation of a life estate in express terms and in such event the limitation over will be good.
On the contrary the second group of Missouri cases cited are bottomed upon the decision of the Supreme Court of the United States in the case of Smith v. Bell, 6 Peters, 68, where the will gave the property with the absolute right of disposal thereof to the first taker, “remainder of said estate after her death to be for the use of said Jesse Goodwin.” No life estate was created by express words. In construing the absolute power of disposal, the court said: “The operation of these words when standing alone can not be questioned. But suppose the testator had added the words 'during her life.’ These words would have restrained those which preceded them, and have limited the use and benefit, and the absolute disposal given, by the prior words to the use and benefit, and to a disposal for the life of the wife. The words, then, are susceptible of such limitation. It may be imposed on them by other words. . . . If this would be true, provided the restraining words 'for her life’ had been added, why may not other equivalent words, others which equally manifest the intent to restrain the estate of the wife to her life, be allowed the same operation. The words 'remainder of the *575said estate after ber decease to be for tbe use of said Jesse Goodwin,’ are, we think, equivalent words. They manifest with equal clearness the intent to limit the estate given to her, to her life, and ought to have the same effect. They are totally inconsistent with an estate in the wife,-which is to endure beyond her life.”
The second group of cases are in line with Andrews v. Roye, 12 Rich. (S. C.) 536; Hubbard v. Eawson, 4 Gray, 247; Brant v. Va. C. & I. Co., 93 U. S. 326; Norris v. Beyea, 13 N. Y. 273; Tyson v. Blake, 22 N. Y. 558; Burt v. Herron’s Exrs., 66 Pa. St. 400; Dehoney v. Taylor, 79 Ky. 124; Malim v. Keighley, 2 Vesey, Jr., 333; Wright v. Atkyns, 17 Vesey, 255; Hall v. Otis, 71 Me. 326; Fox v. Rumery, 68 Me. 121; Burleigh v. Clough, 52 N. H. 267; Cook v. Ellington, 6 Jones’ Eq. 371; Knight v. Knight, 3 Beavan, 148; Prior v. Quackenbush, 29 Ind. 475; Richardson v. Palmer, 38 N. H. 218; Yore v. Yore, 63 Fed. Rep. 645; Kent v. Morrison, 153 Mass. 137.
The first group of cases, like the rule in Shelley’s Case, establish an absolute rule of law, while the second group establish a rule of intention or of construction to reach and carry out the grantor’s or devisor’s intention. The first group profess to respect the will of the grantor or devisor, but require him, by an inflexible rule, to express his intention by limiting the estate of the first taker to a life estate in express terms, employing the identical words of the rule. The second group also respect the intention of the grantor or devisor, but gather that intention from the four corners of the instrument, and regard any equivalent words that clearly express the intention as of as much force as the words “life estate.”
Technically and strictly speaking when property is granted or bequeathed to a person with full power to dispose of the same in any manner the grantee or devisee chooses to *576employ, it involves the idea of absolute ownership, for the jus (Msjponemdi implies a fee simple estate. And logically one who has given all he has to another has nothing more to give to a third party. This was the reason underlying the old doctrine that a fee could not be limited on a fee, yet the cases first above grouped admit a relaxation or modification of this original doctrine, so as to permit an absolute gift to be limited to a life estate provided the set phrase “for life” is made to qualify the absolute title.
If this is permissible because it effectuates the intention of the grantor, what logic is there in requiring the grantor 'to express his intention in set or stereotype language, and in refusing to observe that intention when clearly expressed in equivalent terms? In either event the qualification imposed on the absolute ownership (or power of disposal which is the equivalent of absolute ownership) by limiting the estate of the first taker to one for life, must be construed that he has power to dispose of the estate only during his life, but that after his death the remainder or what is left is to go to the expectant owner. And if this is true, what difference does it make in what words this intention is expressed? In both cases the old, inflexible rule is equally softened, modified and made more elastic. In our day there is not the undefined apprehension about tenures that formerly disturbed the placid dreams of our English predecessors in the law. In all other respects our laws, as to pleading and practice, as to proceedings and remedies and as to interpretation and construction, have been softened and broadened and made plainer and simpler, and it is hard to give a reason why we should tread with leaden heel with respect to conveyances, or try to hamper our real estate transactions with gauges and measures which do not fit our conditions.
If the maxims of interpretation first hereinbefore referred to are applied, the second group of cases will be found *577to be in. consonance with tbem. If tbe latest enunciations of this court are to be observed as the law, the second group of eases must be followed. If we are to be governed by the rules of stare decisis, we are hopelessly lost unless we treat-the second group as overruling the first group. It is a most singular circumstance that none of these conflicting decisions have noticed this conflict in our State, or in terms overruled the prior inconsistent cases. It can not be said that these decisions have established a rule of property in our State unless the second group, being the later utterances, have done so. The wonder is that greater confusion has not already arisen. As if to mark more plainly the discrepancy in this regard, this court has had before it two cases wherein the deeds under consideration were identical with the deed involved in this ease, and in the first case, Straat v. Uhrig, 56 Mo. 482, AdaMS, J., held that it created a life estate only in the first taker, and that the fee passed to the remainderman, while in the second, Tremmel v. Kleiboldt, 75 Mo. 255, Hough, J., held that it vested a fee simple estate in the first taker, and that the limitation over was void, for repugnancy.
It is a noteworthy fact that the last of the first group of cases, Cook v. Couch, 100 Mo. 29, was decided by Blaoh, J., in which he cited and commented upon the prior cases, without attempting to reconcile them or overrule the conflicting ones, and decided the case in hand according to the doctrine of the first group, and that the next time the question was presented to this court, Lewis v. Pitman, 101 Mo. 281,Black, J., wrote the opinion of the court, again referred to both classes of cases, followed the latter or second group of cases, and practically, though not expressly, overruled those of the first group, and said: “If we follow the common-sense reading of the will from first to last, it seems to us that there is no difficulty in discovering its true purpose aryl meaning as to the personal property, and that is this: *578Tlie testator gives all of it to hiswifewitbtberight and power in lier to carry on the manufacturing business, or to dispose of tbe same, as to ber may seem best, with the further qualification that whatever she has remaining at her death shall go to the children. Thus interpreted does the will violate any rule of law ? It is claimed by the appellant that it does, and for the reason that where there is a devise of property, with an absolute power of disposal in the first taker, a subsequent limitation over is void. We shall not review the many authorities cited in support of this proposition of law. It may be conceded that a devise of an estate generally or indefinitely, with a power of disposition over it, carries a fee. [Green v. Sutton, 50 Mo. 186.] But there is a wide difference between that class of cases and those where there is a devise.for life with a power of disposition. Where an express life-estate is created, an added power of disposition does not convert the estate into a fee. [Rubey v. Barnett, 12 Mo. 3; Gregory v. Cowgill, 19 Mo. 416; Reinders v. Koppelmann, 68 Mo. 482.] Nor is it necessary that the life-estate should be created in express terms. If it is $ie clear intention from the whole will that the first taker is to have but a life-estate, then the added power of disposition will not convert the estate into one of absolute ownership. Thus in the case of Smith v. Bell, 6 Peters, 68, the testator gave to his wife all of his personal estate, To and for her own use and benefit and disposal absolutely; the remainder of said estate, after her decease, to be for the use of the said Jesse Goodwin/ It was held the wife took but a life-estate, and that for the reason that the will as a whole disclosed a clear intent to make provision for the wife and a future provision for the son. In Wead v. Gray, 78 Mo. 62, it was said that Smith v. Bell is an exceptional case and has not been followed in this State. Smith v. Bell was cited with approval and liberal quotations made from it in the recent case of Harbison v. James, 90 Mo. 411. In *579that case the testator gave all of his property, real and personal, to his wife with The right to sell and reinvest, as she may desire, any part of the same, for her separate use and benefit, and at her death I desire that any portion of my estate remaining undisposed of shall go to my three daughters.’ There was no express life-estate created in the wife in that case, and yet it was held, notwithstanding the power of disposition, that she had but a life-estate.. The intention of the testator so clearly expressed was allowed to prevail. Although a life-estate is not created in express terms, still an added power of disposition will not convert it into an absolute estate, if upon a consideration of the whole will it is clear that the testator intended to give a life-estate only. This is the deduction to be made from Smith v. Bell and Harbison v. James, and they have the support of other well considered cases. [Giles v. Little, 104 U. S. 291; Siegwald v. Siegwald, 37 Ill. 435; Green v. Hewitt, 97 Ill. 113.] If the first taker is to have but a life-estate, then it matters not whether this appear from express words creating a life-estate or from a consideration of the whole will. What difference can it make in which form the testator expresses his intention, so that it is clearly expressed? There may be and are many cases where the added power of disposition will turn the scale, but if it is the intention of the testator to give the first taker a life-estate only, notwithstanding the power of disposition, then that intention ought to prevail. This is the common-sense view of the matter, and it has the support of well considered judgments.” The court was then composed of Rat, O. J., Shee-wood, BlaoK, Beaoe and Babolay, JJ., and they all concurred.
It is patent therefore that if the doctrine of the first group of cases had been followed, the conclusion reached by the learned judge would have been exactly the reverse, and it is manifest that he had both groups of cases in his mind, for he referred to cases belonging to each, and that upon fuller and maturer consideration he concluded that the better rule, *580founded upon tbe better reason and logic, was that announced by tbe second group of cases, and so be followed tbe “commonsense view of the matter,” effectuated tbe intention of tbe devisor, and discarded tbe old, inflexible rule which measured every man’s intentions by a set phrase which was formerly held to be tbe only words in tbe English language a party could employ to effectively express bis intention.
This case must therefore be regarded as settling tbe law in this State up to 1890, when it was decided. Afterwards in 1893, tbe question came again before this court in Redman v. Barger, 118 Mo. 568, and BRACE, J., delivering tbe opinion of tbe court, cited and approved Lewis v. Pitman, 101 Mo. 281; Munro v. Collins, 95 Mo. 83; Harbison v. James, 90 Mo. 411; Russell v. Eubanks, 84 Mo. 83; Bean v. Kenmuir, 86 Mo. 666, and Smith v. Bell, 6 Pet. 68. This decision was concurred in by Brace, P. J., Barclatand MaoearlaNe, JJ., being all tbe judges of Division No. 1.
It follows that Lewis v. Pitman is still tbe law in this State, unless it has been overruled by Cornwell v. Orton, 126 Mo. 355. That case stands squarely upon tbe doctrine of tbe first group of cases, and follows tbe old iron-clad rules of interpretation. It refers to Lewis v. Pitman, Munro v. Collins, Harbison v. James, and Redman v. Barger, but contains no suspicion of intention to overrule them or tp distinguish them. It simply follows tbe earlier eases and subscribes to tbe harsh rule upon which they were bottomed.
Tbe case at bar involves tbe same deed that was construed in Cornwell v. Orton, supra, and this case was decided on former appeal, by Division No. 2 of this court, at tbe same time and upon tbe faith of tbe Orton case. It is here a second time before tbe Court in Banc, and we are asked to review and reverse tbe decision on former appeal.
If we adhere to the decision in Cornwell v. Orton, supra, it is our plain duty, in tbe condition of tbe law in our State as hereinbefore pointed out, to overrule Lewis v. Pitman, and *581its kindred eases. On tbe other hand, if we reverse Cornwell v. Orton, it is our duty to ourselves and to the bench and bar of the State to expressly overrule Green v. Sutton and its kindred cases, for it is not to be tolerated that two distinct and diametrically opposed lines of decisions on the same principle shall be allowed to stand.
It can not be denied that the rigidity and inflexibility of the common law rule that a fee could not be limited upon a fee and that an absolute power of disposal in the first taker, created a fee in him 'and made the limitation over void for repugnancy, has been relaxed in America, and that all the cases in both groups, and the cases from other States upon the same subject, cited in support of each group, concede that words which would create an absolute fee simple estate if standing by themselves, may be qualified, or limited, by other words in the same instrument, so as to- create only a life-estate in the first taker, and vest a fee in remainder. The only practical difference between the two classes is what words shall be deemed sufficient to so limit what would otherwise be an absolute fee.
If the power to qualify or limit at all be conceded— which the common law denied — as it is conceded by all the^ American cases and text writers, and if the purpose to be thus subserved is the effectuating of the grantor’s or devisor’s intention, it logically follows that it can make no difference what the words of qualification or limitation employed may be, so long as they clearly express the intention of the grantor or devisor, and that it is a solecism to concede the right to qualify but to refuse to enforce the intention unless it is couched in terms arbitrarily required by the courts.
If the opinion in Lewis v. -Pitman, swpra, had been written for the case at bar it could not have fit it more completely than it does. All of the elements present and decided in that case are involved here. We have here the conveyance with absolute power of disposal, whether by deed or will, and *582not qualified by any express life-estate, bnt superadded a clear intention of the grantor that whatever is left of the-estate after the first taker’s death, or undisposed of by her,, was to vest in James Cornwell; manifesting, therefore, most conclusively a desire and intention to provide for Mrs. Corn-well during her life, and after her death for Mr. Cornwell. These are clearly equivalent words and are just as effectual, as if an express life-estate had been granted to Mrs. CornwelL with a remainder in fee to Mr. Cornwell.
The reason upon which the common law rule rested that an absolute power of disposal created a fee and made the limitation over void for repugnancy, was, that it was thus planed in the power of the first taker to cut off the limitation by disposing of the estate; and the reason underlying the modern,. American doctrine that where the absolute fee is qualified by words creating only a life-estate in the first taker, is, that the first taker’s power to dispose must be construed to be-limited to the right he had in the estate — the life-estate; and that if he disposed of his life interest, the remainder would vest immediately upon his death in the person for whom the-grantor or devisor intended to provide, and so it is not within the power of the first taker to defeat the remainder, and hence-there is no repugnancy, and therefore the principle upon which the common law rule rested, is not violated.
The only remaining question then is how shall this intention be voiced in words — by the words, “for life only,” or by equivalent words, pregnant with the same idea and expressive-of the same intention.
One theory is purely arbitrary and technical; the other is-common sense. Between the two, all reason and logic, all precedents for the construction of all laws, contracts and dealings of mankind, is on the side of the rule laid down in Lewis v. Pitman, Supra, and the second group of cases.' This-being true, that case and its kindred cases should behereafter-*583regarded as tbe law in onr State, and Green v. Sutton, and its kindred cases should no longer be followed.
It follows that tbe deed to Goodlett was a conveyance in .trust for Mrs. Catherine Cornwell for life, with power in her to dispose of her life interest, and a remainder in fee to James Cornwell. It also follows, that it was not a mere naked, dry trust, and that the use was not executed in Mrs’. Cornwell under the statute of uses, even if the statute of uses applies to the second use, which Scott J., in Guest v. Earley, 19 Mo. 151, held-the statute of uses never was intended to ■do, saying: “The statute only executes the first use. A use upon a use is no estate in law; it is only a trust, a creature •of courts of equity.”
The judgment of the circuit court should therefore be reversed.
Sherwood and Beaus, JJ., concur; Gantt, O. J., Burgess, RobiNSON and "Williams, JJ., dissent.