M'Cay v. Hugus , 6 Watts 345 ( 1837 )

The opinion of the Court was delivered by

Huston, J.

The plaintiffs in this cause are the daughters and descendants of the daughters of John M’Clure, and the question arose on his will, in which, after the preamble, he says: “ I give and bequeath to my beloved wife, Mary M’Clure, the thirds of my personal estate of goods and chattels, and the thirds of my real estate, during her widowhood. I do also give and bequeath to my oldest son, Samuel M’Clure, half of all the remaining goods and chattels, lands and tenements, to have, and to hold forever. I do also give and bequeath to my youngest son, John M’Clure, the remaining half of my goods and chattels, lands and tenements, to have, and to hold forever, both shares alike. I give and bequeath to my three daughters, Elizabeth, Hannah and Mary, 80 pounds each;” then to Jennet Johnson, a married daughter, 250 pounds, and directs these legacies to be paid by his sons, in one year after his death, &c. &c.; proved December 1795. It was agreed that the sons took tjie land devised to them in fee; but the question was, whether they took the remainder, in the one-third, devised to the widow during her widowhood. The plaintiffs contended that it was undisposed of by the will, and descended to the heirs of the testator. The defendants who claim under the sons, say it was devised to the sons.

The cause rvas well argued; among the authorities cited, perhaps not one meets this case. 5 Term. Rep. 558, and 1 Bos. & Pull, 558, and 2 Bos. & Pull. 247, which is the same case in different courts, has this difference; the question there arose on a devise to the widow in general terms, such as she contended gave her a fee, and then followed a general devise of all the residue of testator’s estate to the same widow. The final decision was, that under the first devise, she took only an estate for life in the lands, and that the residuary clause did not enlarge this life estate in the lands there named, but might apply to property not before named; where however, a present interest for a definite time, as for years or for life is given to one, and then a devise of all the remaining estate, real and personal, or of all lands and tenements, and all personal estate, a remainder or reversion will pass by the residuary clause.

In 2 Ventr. 285, a man bequeaths sums of money to different legatees, and certain freeholds to his wife, for life, and then disposes of- some other property; and then, the better to enable his wife to pay the legacies, gives all his messuages, lands, tenements and hereditaments, to her and her heirs, and held the reversion after her life estate passed; and Alyn 2, was cited, where a man devises to A, certain lands for six years, and certain other lands to B in fee, and then all the rest of his lands to his brother. The brother took the reversion after the expiration of the six years, during which the devise to A continued.

In 3 Atk. 485, we find a devise of certain premises to the testator’s wife for life; then follow many devises to other persons, and the will concludes, all the residue and remainder of my goods and chattels and real estate, I give to my wife, &c. &c. Lord Hardwicke notices the cases above cited and others, and considers the law settled that the wife took the reversion in the lands given to herself for life.

The same doctrine, in cases where the first estate is expressly for years or for life, is recognized in 1 Wash. 112. Though where the estate was given, one farm to one son, another farm to another son, and the testator had a third farm, and devised all the rest of his goods and real estate to his wife and daughter, it was held, though the devises to the sons might, in law, be held only for life, yet the reversion after the death of the sons, did not pass to the widow and daughter, because, says the judge, the testator intended to give each of his sons a fee, and thought he had done so; and therefore, never intended-to give his widow and daughter a reversion of which he had no suspicion. We have nothing to do with the latter part of the opinion; the first part alone applies to this case.

Some of the cases cited, turned on the word used in the residuary clause, as hereditaments, in others, real estate, in another, all the rest of his land, &c.; perhaps no one of these words, in a certain connection with other words, might pass in reversion, though each, in certain cases, has rightly passed a remander or reversion. In the present case, the devises to his sons are in fee, to each of them forever. The devise to the widow is of goods, and one-third of the lands is during widowhood. The testator knew these would fall into his estate. Instead of giving to each of his sons one-third of his goods, and one-third of his lands and tenements, which would have been the most obvious method, if he meant they should have no more; he gives to Samuel, the half of the remaining goods and chattels, lands and tenements, and to John the remaining half of the goods and chattels, lands and tenements, to each forever, both shares alike. Now he knew the estate to his wife could not last many years, that it would fall into his estate on her death or marriage, and considering it then as a whole, he gives half to each of his sons. There is no question, but that the words lands and tenements, may pass every interest which' a testator has in real estate. It may be observed, that in the next sentence, the testator proceeds to make provision for his daughters, to each of whom, he gives a pecuniary legacy, but no part of either goods or land.

Judgment affirmed.