The question in this case is whether the sale and conveyance which the testator made of his farm, in his lifetime, after the execution of his will, operated as a revocation pro tanto of the bequest to his nephews and nieces of the proceeds of the sale of his real estate. *Page 206
The testator, by his will, first, gave all his personal estate to his wife, for her use and disposal; next, he devised to her all his real estate, during her life; lastly, he directed that, at her death, the real estate be sold, and the avails, after paying debts, be divided among his nephews and nieces therein named; and he appointed his wife executrix, and the respondent executor of his will.
Unquestionably, the sale of the farm was a revocation of the devise to the wife of an estate therein, during her life. To that extent, at least, it was inconsistent with the plan of the will. The appellants' counsel is, therefore, mistaken in supposing that the sale by the testator was simply equivalent to an execution by him of the power of sale conferred upon the executors; by the terms of the will, they could not execute the power until the death of the widow, thus preserving her life estate, but the life estate given to her by the will was absolutely cut off by the sale made by the testator. He procured her to join in the conveyance, thus cutting off even her right of dower.
If the will, instead of giving the nephews and nieces the proceeds of the land after the life estate of the widow, had given them the land itself in fee, it is clear that the devise of such estate in remainder, as well as the life estate of the wife, would have been revoked by the sale. (2 R.S., 65, §§ 47, 48.) The case is the same with respect to the proceeds. The direction to convert the real estate into personalty after the death of the widow, was merely for the convenience of distribution.
Although the sale of the farm operated as a revocation of the gift of a life estate to the wife, it was not designed to enlarge the gift to the nephews and nieces at her expense. It was made in view of the provision of the will, giving to her all the personal estate. Indeed, the will secured to her the use of the entire estate, real and personal; of the personalty, absolutely, and of the realty, for life. That provision is its prominent and controlling feature. Without it, the whole scheme of the will would fail. I am satisfied that the intention of the testator will be subserved by holding that, *Page 207 as the clause giving the wife a life estate in the land, was revoked pro tanto by the sale of the farm, so the bequest of the proceeds of the farm, to be made by a sale thereof after her death, was revoked in like manner, and that the avails of the sale made by the testator passed under the general bequest of all the personal property to the wife. In short, the provisions of the deed were wholly inconsistent with the terms and nature of the testamentary disposition of the farm, including the power of sale and of distribution of proceeds, and, therefore, operated as a revocation thereof. (§§ 47, 48, supra.)
For these reasons I am of opinion the judgment of the Supreme Court should be affirmed, with costs.
All the judges concurring,
Judgment affirmed. *Page 208