Elizabeth, the daughter of Peter Foust, married one John Clapp, and was living at the death of her father. After the death of her father, but in the life time of her mother, Elizabeth died, leaving her husband and several children, her surviving. The plaintiff Daniel Foust administered on the estate of Elizabeth, and claimed the slaves in question as her property, as one of the next of kin of Peter Foust. The surviving executor of Peter Foust had acquiesced in this claim, and allotted and delivered the slaves to the plaintiff; afterwards they went into the possession of the defendants, and were detailed by them at the bringing of this suit. The defendants claimed as purchasers from the children of Elizabeth Clapp, who, at the death of Mary Foust were her next of kin, their mother being then dead, and they insisted that, according to the following will of Peter Foust, their grandmother, Mary, took an absolute estate in the property bequeathed to her, of which these slaves are a part. The plaintiffs contend that, under this will, Mary Foust took only a life interest, and that, as to the interest after her death, there was an intestacy which gave a vested right to the next of kin of Peter Foust immediately, but not to be enjoyed till after the death of Mrs. Foust.
The following is a copy of the will of Peter Foust:
"3d. As touching such worldly property as it has pleased the Lord to bless me with, I bequeath, give, devise and dispose of as follows:
"4th. I give to my daughter Elizabeth Clapp a negro girl named Erry.
"5th. I give to my daughter Sarah Amick a negro girl named Esther.
"6th. I give to my son John Foust the plantation I bought of Joseph Stout, and a hundred acres of land that lie joining Daniel Foust, James Neal, Jacob Moulder and my own, a horse, saddle and bridle, and plow irons, with gears fit to plow. *Page 186
"7th. I give to my son George Foust the plantation I brought of William Ray, adjoining my own land, Jacob Marshall's and Freeman, a horse, saddle and bridle, plow and gear fit to plow.
"8th. I give to my son Daniel Foust the plantation I bought of Henry Dale, with ten acres more, including the field that lies North of the house I now live in, with a horse, saddle and bridle, plow and gears fit to plow, and three hundred dollars in cash.
"9th. I give and bequeath to my beloved wife, Mary Foust, the plantation I now live on, with all the household and kitchen furniture, with all the horses, cows and stock of every kind, wagon and plantation tools, of every kind, with all the Negroes unmentioned, so long as she remain my widow; but, if she marry, she must quit the plantation, and have the half of the household and kitchen furniture, and negro man, and a negro woman her life time, and they and their offspring, if any, to return to my children, to be equally divided between them, living at that time. I give her a horse, saddle and bridle, two cows: the remainder of the stock and household furniture, and every other property in her hand, to be sold, and the money given to the child she is pregnant with; if a boy, he to have eight hundred dollars. a horse, saddle and bridle, plow and gear fit to plow; if a girl, to have equal to what the other girls have had.
"10th. I give my son Peter Foust the plantation I now live on, when he comes to age, if his mother be living and unmarried, to have the one-half thereof for himself, with a horse, saddle and bridle, plow and gears fit to plow, and the half of the land my father entered, which is to be divided between my brother Daniel and me, that to be joined with this old plantation for him.
"N.B. If my widow should marry as above said, after she makes her choice of the two negroes, the remainder of them must be divided amongst my sons that may be living at that time. *Page 187
"In witness and testimony whereof, I Peter Foust, have hereunto set my had and affixed my seal, the day and year above written."
On the foregoing case agreed, his Honor, pro forma, gave judgment for defendants. Appeal. If there is an intestacy, Mrs. Clapp took an interest transmissible to her personal representatives, and the plaintiff is entitled to recover. Otherwise he is not.
It was agreed upon in the argument, and is undoubtedly true, that as the widow died without marrying, the will must receive one of two constructions. Either there is an intestacy as to all of the property given to her, except the land, or the absolute estate in the personal property is given to her. So the only question is, which of these two is the true construction. In support of the intestacy, it was insisted, that the property is limited to the wife, "so long as she remains my widow," which is at most a life estate, leaving a reversion that is not disposed of, except in the event of marriage and the failure to make a disposition of it in the event of her death without marrying, was casus omissus, in other words, it was forgotten.
There are several objections to this construction:
1st. Every testator is presumed to intend to dispose of all his estate, so as not to die intestate as to any part. This presumption is strengthened in the present case, by the fact. that the will professes on is face to dispose of all the testator's worldly property.
2d. The reversion, which it is alleged was forgotten, is not a small article, or trifling in value, such as is usually covered by a residuary clause, but is a valuable interest, constituting a large part of the estate. *Page 188
3rd. In the event of her marriage, he gives his wife a part of the property absolutely, and a part for her life time, and makes a disposition of the reversion in this part and of the part which is taken from her. This shows that he knew how to give a life estate, and that after such life estate, there was a reversion to be disposed of. If he intended his wife to have only a life estate in the event of her remaining his widow, why did he not say so in so many words, and go on to make the same minute and detailed disposition as he does in the event of her marriage? No answer can be given, except that he forgot it. For the same reasons given above, the mind cannot rest satisfied with this answer and naturally seeks for some other solution. It was suggested by Mr. Winston, that the whole will is made consistent and intelligible by considering the words, "so long as she remains my widow," to have been used in the sense of a condition, so as to read, "if" she remain my widow, in opposition to "if she marry." and he argued, that although the words "so long as" and "during" are words of limitation and the words "if" and "provided" are words of condition, yet the difference between a limitation and a condition is sometimes not readily distinguished, and that to suppose words of limitation were used, when it was intended to use words of condition, is not going as far as the Courts do in many cases. for instance, in making "or" mean "and," in order to carry out the intention, and make the will consistent and intelligible. The question is a perplexing one, but after much reflection, we have come to the conclusion, that it was the testator's intention to give the absolute estate in the personal property to his wife, in case the remained his widow. If the property had been limited to her for life, or for her life time, these words could not have been avoided, for they are the words that naturally suggest themselves, and are commonly used when the intention is to give a life estate. The fact, that he does not use these words, but goes out of the *Page 189 way to get words of less direct signification; that he makes no disposition of the reversion; that in the event of her marriage, he gives her a life estate in the part of the property which she is to lose by her marriage, and disposes of the reversion in the part which she is allowed to retain, except a small part which is given to her absolutely, show almost conclusively, that he did not intend to restrict her to a life estate if she remained his widow.
This conclusion is confirmed, by the further fact, that he provides for all of his children, who are of age, and appear to be settled off, in the world, and also for a son who is under age, and for a child of which his wife was pregnant, and having thus particularly provided a sufficient livelihood for his children, it is highly probable that he should intend to give the rest of his property to his wife, provided she remained his widow; knowing that, in that event, she would give it to their children, as circumstances might afterwards require, or leave it at her death, to be divided among them, according to the Statute of Distributions, taking care to make other dispositions, in the event she disappointed his wishes, and married a second time.
Should it be objected, that, if the words are so construed as to give the widow an absolute estate in the personal property, the same words must give her an absolute estate in the land also, the reply is: the reversion in the land is disposed of: one-half is given to Peter, when he arrives at age, and the reversion in the other half is given to him by implication, either at the death of his wife, if she remains a widow, or at her marriage; whereas, no disposition whatever is made of the reversion in the personal property, if she remains a widow. This difference justifies the distinction, which is made necessary to avoid an intestacy in regard to the personal property, and the fact, that he disposes of the reversion in the land, and does not dispose of the reversion in the personal property, shows, that he intended to *Page 190 give the latter absolutely, so as to have no reversion, unless his wife married.
Judgment for defendants.