¶1The following opinion on motion for rehearing was filed November 16,1945. Former opinion vacated in part; judgment affirmed.
¶2The plaintiffs brought this action in the district court for Knox’County to obtain a decree and judgment determining their respective interests to certain lands located therein, and to quiet title thereto in them, and for an accounting of the rents and partition of the land. This appeal involves only the first cause of action, the second and third causes of action being deferred pending decision of the first.
¶3The material facts are not in dispute, and in substance are as follows:
¶4On February 11, 1936 Addie E. Watson, widow, was the owner of certain lands in Knox County, Nebraska, and on said date she conveyed by warranty deeds to Fern M. Dalton, her daughter and sole and only heir at law, such lands. The deeds were duly recorded on June 25, 1936. The first deed set forth in the first cause of action contained the following restrictions: “The grantor reserves unto hereself the use of said premises during her life time and further as a part of the consideration for the execution of this deed the grantor restricts the grantee for a period of 5 years from this date, from selling or mortgaging said premises or in any manner during said period from placing or causing to place a lien of any kind against said premises.” The second deed contained like restrictions, with the exception that the *88period was for 12 years. On August 5, 1940, Fern M. Dalton and Charles S. Dalton, husband and wife, executed and delivered to Charles S. Dalton a quitclaim deed to all such real estate. This deed was filed of record November 25, 1940. On August 9, 1940, Fern M. Dalton made and executed her last will, and in paragraph 2 thereof, gave, devised and bequeathed to her husband, Charles S. Dalton, all of her property, both real and personal, wherever situated, to be his absolutely, forever.
¶5The heirs of Fern M. Dalton consist of Charles S. Dalton, her husband, and eight uncles and aunts. The uncles and aunts were not heirs of Addie E. Watson, deceased., Addie E. Watson died intestate a resident of Knox County on May 28, 1936, and on January 17, 1941 a short form of administration proceedings was had and decree of heirship rendered, adjudging her daughter, Fern M. Dalton grantee in each of the deeds, as her sole and only heir. Fern M. Dalton died October 2, 1940. No appeal was taken from the final .decree entered in the county court of Knox County in the matter of the estate of Addie E. Watson, deceased, and no appeal was taken from the decree of the county court of Knox County admitting the will of Fern M. Dalton to probate. There were no clauses in the deeds expressly providing- for re-entry, termination, reverter or limitation over. The habendum clause contained the language, “subject to the conditions above stated.”
¶6The trial court dismissed the plaintiffs’ petition and dismissed the cross-petition of certain defendants, the children of a deceased uncle of Fern M. Dalton who predeceased her in death. These cross-petitioners did not appeal nor cross-appeal. The court quieted title' to the real estate in Charles S. Dalton as against each and all parties thereto. Motion for new trial was filed, submitted and overruled. The plaintiffs appeal.
¶7Plaintiffs will hereafter be referred to as appellants and defendants as appellees.
¶8First, the appellants in their motion for rehearing- direct this court’s attention to our former opinion ante p. 78, 18 *89N. W. 2d 658, wherein we held that the restrictions on alienation contained in the deeds made and executed by Addie E. Watson to Fern M. Dalton, constituted a condition subsequent.
¶9“The term ‘condition subsequent’ denotes that part of the language of conveyance, by virtue of which upon the occurrence of a stated event the conveyor, or his successor in interest, -has the power to terminate the interest which has been created subject to the condition subsequent, but which will continue • until this power is exercised.” Restatement of the Law, Property, s. 24, p. 59.
¶10Estates on condition subsequent are defined in 19 Am. Jur., Estates, ss. 62, 63, 65, pp. 522, 523, 526, as follows: “Conditions subsequent are those which in terms operate on an estate conveyed or devised and render it liable to be defeated for breach of condition. The title passes to the grantee, subject to divestiture on failure to perform the condition. … While no precise form of words is necessary to create a condition subsequent, still it must be created by express terms or by clear implication so as to leave no doubt of the grantor’s or devisor’s intention. … While the use of technical words appropriate to the creation of a condition or of an express provision for re-entry and forfeiture is not' an absolute prerequisite to the creation of a condition subsequent, the failure to use them, or to use other language clearly indicating the creation of such condition subsequent, is an important consideration as indicating the absence of an intention that the estate conveyed shall be restricted by such a condition.” See, also, 26 C. J. S., Deeds, s. 141, p. 468.
¶11In Majerus v. Santo, 143 Neb. 774, 10 N. W. 2d 608, this court quoted with approval from Ruggles v. Clare, 45 Kan. 662, 26 P. 25, the following: “The authorities are uniform, that estates upon condition subsequent, which, after having been fully vested may be defeated by a breach of the condition, are never favored in law, and that no deed will be construed to- create an estate upon condition, unless the language to that effect is so clear that no room is left for any other construction.”
¶12*90The grantor, Addie E. Watson, failed to provide for an express provision for re-entry, termination or forfeiture. She apparently did not intend to terminate the estate granted if the restrictions on alienation were violated.
¶13Within the conception of the cited authorities, we deem the language as used therein does not permit the creation of a condition subsequent, and we were in error in so holding. We conclude the language in the deeds in controversy constitutes a restriction on alienation.
¶14The appellants contend that the restrictions on alienation as contained in the deeds of Addie E. Watson to Fern M. Dalton are valid and effective; that the deed and devise by will of Fern M. Dalton to her husband each contravened and violated the restrictions within the limitation of the restrictive period as contained in the deeds, and that each were ineffective to convey title. In this connection, the appellants assert that the restrictions contained in the aforesaid deeds are reasonable and are valid in Nebraska, citing Peters v. Northwestern Mutual Life Ins. Co., 119 Neb. 161, 227 N. W. 917, and Blochowitz v. Blochowitz, 130 Neb. 789, 266 N. W. 644, and further state that the rule announced in the cited cases was reaffirmed in Majerus v. Santo, supra:The latter case reviewed several of our previous decisions on the subject matter here involved, setting forth that in Peters v. Northwestern Mutual Life Ins. Co., supra, the will devised to the son a fee simple title with a restriction against alienation until the devisee became 35 years of age, the restraint was held to be a reasonable restraint and valid; and also that we held in Hiles v. Benton, 111 Neb. 557, 196 N. W. 903, Nebraska National Bank of Minden v. Bayer, 123 Neb. 391, 243 N. W. 115, and Drury v. Hickinbotham, 129 Neb. 499, 262 N. W. 37: “ … when the estate in fee does not pass, but a lesser estate is created, then provisions against alienation are valid.”
¶15The rule announced in Majerus v. Santo, supra,is as follows: “Where the owners of an interest in real property convey the same but by agreement contained in the instrument of conveyance retain an interest in the premises, such *91interest will support the imposition Of a restriction on alienation where it is reasonably necessary to protect the interest retained.”
¶16This brings us to the restrictions contained in the deeds made and executed by Addie E. Watson. It is not questioned that in the instruments there was an effective reservation by the grantor of a life estate in the premises. Assuming.it was reasonably necessary to protect this life estate by the restrictions and the same were reasonable within the contemplation of the authorities cited by the appellants and the rule announced in Majerus v. Santo, supra,we are convinced that from an analysis of the following facts and the law hereinafter set forth and pertinent thereto, it is unimportant whether the restrictions on alienation were reasonable or necessary to protect the life interest.
¶17It will be noted that Addie E. Watson died intestate on May 28, 1936; Fern M. Dalton was her sole and only heir at law; when the original conveyances were made by Addie E. Watson to Fern M. Dalton, Fern M. Dalton became vested with the fee containing restrictions on alienation; the purpose of the restrictions was to protect the interest of the grantor; that interest was a life estate which she retained; upon the death of Addie E. Watson, Fern- M. Dalton also became possessed of a lesser estate, the life estate; she became possessed of both estates. There appears no reason why the lesser estate should not merge in the greater estate, and no reason why the two estates should remain separate and distinct. There would be no reason for non-merger, there were no intermediate estates. See Peterborough Savings Bank v. Pierce, 54 Neb. 712, 75 N. W. 20.
¶18“The doctrine of merger of estates is that whenever a greater and a less estate meet in the same person without an intermediate estate the less is immediately annihilated.” 31 C. J. S., s. 123, p. 141, and Nebraska cases cited tinder note 74.
¶19“Equity will prevent or permit a merger as will best sub-serve the purposes of justice and the actual and just intent of the parties … .” 31 C. J. S., s. 124, p. 144. See, also, *92Anderson v. Lincoln Joint Stock Land Bank, 131 Neb. 150, 267 N. W. 355; American Savings & Loan Assn. v. Barry, 123 Neb. 523, 243 N. W. 628; Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207, 55 N. W. 643.
¶20We conclude that the life estate, being the lesser title, merged with the greater in the same person, Fern M. Dalton, without an intermediate estate, and that the restrictions on alienation became extinct. This being true, the conveyance made by Fern M. Dalton to her husband on August 5, 1940, and the will made August 9, 1940, effectively convey to the husband a fee simple title in the premises.
¶21The following is likewise pertinent to a determination of this case:
¶22“A fee simple estate is one by which a tenant holds lands, tenements, or hereditaments to himself and his heirs forever. The terms ‘fee,’ ‘fee simple,’ and ‘fee simple absolute’ are substantially synonymous. … an estate of inheritance without condition, belonging to the owner, and alienable by him or transmissible to his heirs absolutely and simply; … 31 C. J. S., s. 8, p. 18.
¶23“A fee-simple estate is the greatest estate a person can possess in landed property; … . It embraces all of the estates that may be carved therefrom, … . It is not subject to a special limitation or a condition subsequent or an executory limitation.” 31 C. J. S., s. 8, p. 19. See, also, Restatement of the Law, Property, s. 15, p. 42, and 1 Simes, Law of Future Interests, s. 37, p. 49. The fee simple title descends upon the death of the owner, to both lineal and collateral heirs, according to the statutes of descent in force in the jurisdiction. In this state, under section 30-102, R. S. 1943, the title in fee simple would descend to the sole and only heir, Fern M. Dalton.
¶24We have held that a grant or devise of real estate to a designated person in fee simple with provisions therein that are inconsistent or repugnant thereto, such as a restriction against the power to sell, mortgage or otherwise encumber, such provisions are void.
¶25In State Bank of Jansen v. Thiessen, 137 Neb. 426, 289 N. *93W. 791, this court held: “A devise of real estate to a designated person ‘and his heirs forever/ without power to sell, mortgage or otherwise encumber, vests such designated person with a fee simple title. The restraints against alienation contained therein are repugnant to the estate devised and are therefore void.” In the opinion this court said: “It is a fundamental rule when an estate in fee simple is devised that an attempt by the testator to prevent alienation is ineffective and void for the reason that it is repugnant to the estate devised. Yates v. Yates, 104 Neb. 678, 178 N. W. 262; Myers v. Myers, 109 Neb. 230, 190 N. W. 491.” See, also, Moffitt v. Williams, 116 Neb. 785, 219 N. W. 138.
¶26In Grant v. Hover, 103 Neb. 730, 174 N. W. 317, this court said: “It has been regarded by the courts that it is impossible to convey an absolute title to real estate in fee simple by deed or will, and at the same time in the same instrument convey to the same person a limited right or title in the same land.”
¶27We conclude that the restrictions on alienation contained in the deeds of Addie E. Watson to Fern M. Dalton, especially upon the death of Addie E. Watson, were repugnant to and inconsistent with the fee simple title absolute which was then vested in Fern M. Dalton, and that the subsequent conveyance by deed and devise by will by her to her husband, vested in the husband the fee simple title to all the real estate.
¶28Our former opinion reached the same result as we have reached in the case at bar, except that the former opinion was predicated upon a condition subsequent. To this extent our former decision is hereby set aside and vacated, as being in conflict with this opinion.
¶29For the reasons given in this opinion, the judgment of the district court is affirmed.
¶30Affirmed.