SEPARATE CONCURRING OPINION.
GANTT, C. J.The most casual reading of Cornwell v. Wulff, 148 Mo. 542, will demonstrate that the Court in Banc in that case and Division No. 2 in Cornwell v. Orton, 126 Mo. 355, recognized the modification of the rule laid down in Jackson v. Robins, 16 Johns. 587, and both held that it is no longer necessary in this State that the life estate should be created by express words as ruled in the earlier case of Ide v. Ide, 5 Mass. 500, but if it is the clear intention from the whole will that the first taker is to have but a life estate, the added power of disposition will not convert it into an absolute ownership.
My learned brother is mistaken in saying that “the majority opinion in Cornwell v. Wulff, followed Ide v. Ide, 5 Mass. 500,” as to this point. That case was cited only to show that at that early day Chief Justice Parsons, several years before Chancellor Kent had announced the same rule, had held that a valid conditional limitation or executory devise could not exist where the first taker is granted either the legal or equitable fee conjoined with an absolute power in the first taker or primary devisee to defeat and cut off the further or ulterior estate or interest by alienation of the entire fee in the lifetime of the first taker, and to show that Ide v. Ide, to the extent of holding that the two grants were repugnant, had been expressly approved by this court in State ex rel. v. Tolson, 73 Mo. 320.
Neither in the dissenting opinion in Cornwell v. Wulff, 148 Mo. 542, nor in this concurring opinion, has my learned *510brother favored us with authority which overrules the overwhelming adjudications both in England and in the United States supporting the proposition stated by Chancellor Kent that a valid executory devise can not subsist under an absolute power of disposition in the first taker in fee.
The writer has never denied that where an estate for life only is given, either expressly or by necessary implication, to the first taker with an added power of alienation and no disposition is made under this power, an ulterior devise or grant would be good. It was so ruled in Rubey v. Barnett, 12 Mo. 1, save and except at that time the law required the life estate to be limited by certain or express words.
Bean v. Kenmuir, 86 Mo. 666, clearly recognizes the rule announced in Cornwell v. Wulff. It will be noted there was no power of disposal granted to the wife further than would follow from the grant of the fee to her. The court said: “The deed, in question does not, by express words, vest a life estate only in Neamie J. Talley, nor does it give a distinct or express power of disposition.....A power of disposition, such as is needful to defeat the limitation over to the husband, should appear, we think, in more express terms.” The conclusion is inevitable that the majority of the court would have concurred with the minority in that case, had the power of disposition by the wife been given in express words.
I fully agree that all parts of a deed or will must be looked to in construing it.
It is often exceedingly difficult to determine whether a fee simple in realty or an absolute interest in personalty has been conferred upon the first taker as distinguishable from an estate for life with a general power of disposition.
In Cornwell v. Wulff, the court construed the deed as conferring an equitable fee simple on Mrs. Cornwell with an added express and absolute power of disposal.
I have come to the conclusion, after much consideration, that the deed in this case construed as a whole only granted *511Barbara Yore an equitable life estate with a power of appointment with a limitation over in fee to her husband Patrick Yore.
Patrick Yore was to all intents the grantor in the deed and created and carved out of his estate an active trust for the benefit of his wife. Upon the trustee was cast the burden of renting, leasing and collecting the rents and paying them over to the wife, thus creating an active special trust according to the great weight of authority. [1 Perry on Trusts (4 Ed.), sec. 305.] While the majority of my brethren see no difference between this and the Cornwell trust, it seems to me the distinction is found nowhere more clearly stated than in Pugh v. Hayes, 113 Mo. loc. cit. 432, wherein Judge Black, speaking for the whole court, says: “Where the estate is limited to a trustee to pay the rents and profits to another person for life, the trustee takes the legal estate, for he must receive them before he can make the payments; but, where the estate is limited to a trustee to permit and suffer another to have the rents, the statute vests the legal estate in such other person because the trustee has no duties to perform.” Citing 1 Saunders on Uses and Trusts (Am. Notes), 253; Hill on Trustees (Am. Notes), 361; Upham v. Varney, 15 N. H. 462; Barker v. Greenwood, 1 Horn & Hurlstone, 389, To this list may be added, Wagstaff v. Smith, 9 Vesey, 524; 2 Perry on Trusts (4 Ed.), sec, 520; Witham v. Brooner, 63 Ill. 344,
While it is clear under these authorities that the trust in the Yore deed is an active executory trust, I think it is equally clear that in the Cornwell deed the trust was a dry executed trust, Wagstaff v. Smith, 9 Vesey, 524.
As pointed out by the learned counsel for respondents in his brief, the other distinctions between the two deeds are quite as pronounced. In this Yore deed the grantor limits an estate over to the husband, whereas in the Cornwell deed no such limitation over was made.
*512But the most important difference between the two deeds is that the Cornwell deed created an equitable fee simple in Mrs, Cornwell with an absolute power of disposal, whereas this deed created in Mrs. Yore only an equitable life estate with power of disposal which she never exercised.
I am moved to these remarks, not because I think the opinion of Judge Burgess needs any support, but because of the discrediting of Cornwell v. Wulff.
Burgess and Yalliant, JJ., concur.