By the Court.
Lumpkin, J.,delivering the opinion.
[1.] Me are called on to construe the will of Nicholas Lewis, deceased, and to say, first, what estate his widow took.— Most clearly, a life estate only. The share given to her, is limited expressly to the term of her natural life, with the power of disposition, either by deed during her life, or by will after her death. She died without doing either. She took an estate for life only.
[2.] The next and main question is, what became of the fee *152of that portion of the property allotted to Mrs. Lewis ? Did it go to the younger children mentioned in the 3d item of the will ? or did it revert to the estate of the testator, and become distributable, under the Statute, to his heirs generally ?
It is insisted, that the latter proposition cannot be maintained, because the older set of children are expressly exempted, by the second clause of the will, from all further share or portion of their father’s estate, except what shall bo expressly given to them, in the subsequent part of the will. This may be true—still, if no disposition is made of this reversion by the testator, the laws will cast it upon his heirs, for the simple, and yet most satisfactory reason, that there is nobody else totako it. The inquiry, then,, is narrowed down to this, does the will expressly, or by necessary implication, dispose of this reversion?
The younger children contend, that this is done by the 8d' item in the will, which directs that all the property, real and personal, of the deceased, be equally divided between the widt ow and the five children therein named. That it is true, that a life-estate was carved out of one-fifth of the property, for the widow; but that upon her death, the whole belonged to. the five children.
We do not think that this item of the will, is fairly susceptible of this interpretation. She took her share just as absolutely, as the children took theirs. Her portion was separated, in legal contemplation, just as much as theirs, and the only difference is, that the children took the fee in theirs, while the widow takes only an estate for life, with the power of disposition in hers. But is not the arrangement, of itself,, utterly inconsistent with the idea, that she took the usufruct only, in her portion, while the corpus was vested in the children? The power of disposition negatives this conclusion. But’, that the reversion in her part, was not included in this-division directed to be made by the third item of the will, is demonstrable from this consideration alone, namely: that she participates equally with the children, in everything to be divided.. And it would be a self-evident absurdity to hold, that *153she could divide with the children .an interest that could accrue only after her death; and that, too, upon the failure on her part, up to the last moment of her life, to make any disposition of it herself. In other words, the widow is made, by this course of reasoning, to divide with her children, the reversion in her share in her husband’s property, after her life estate therein has terminated.
It is in vain to search this instrument for any disposition of this reversion. The testator neither intended to dispose of it, nor has he done it. He supposed, no doubt, that when he had sub-divided his property between his widow and these younger children, giving her a life estate in hers, with the power of disposition, that he had willed the whole of his estate. It never occurred to him, that his widow might die without making any disposition of her share; hence, he made no provision for such a contingency.
What then, is to be done ? Why, to permit the law to come in and do that with his property, which the testator has omitted to do, viz : make disposition of it. Nor is any violence done to the testator’s intention .
By authorizing his widow to give, during her life, or bequeath at her death, her share of the estate to any of his children, he evinced that he had no choice or preference as between the children. The law makes none, but treats them all alike.— Should not this fact reconcile all parties to this decision? The interpretation we put upon the will, best subserves the intention of the testator, so far as it can be gathered from the will. For, notwithstanding the terms of exclusion in the second item of the will, it is not pretended but that the widow had plenary power to dispose of the entire part left to her, to thó older children.^ She is clothed with authority to give or will it to any of the testator’s children, that she might think proper. And this contingent interest, and the request to his wife, in the fourth item of his will—to keep her house open for any of his children that are, or may become indigent—may be, and probably is, what is meant by the words in the latter clause *154of the second item, that is, that the older children were to take nothing “ more than Which shall be expressly pointed out thereafter.”
Why should it be thought a strange thing then, that these older children, as well as the younger, were in the mind of the testator, when he endowed his wife with legal capacity of dispensing her bounty to any of them ? Or, that neglecting to do so, the law should distribute it to them all alike. Neither the testator or his widow cared to select, and the law will not.
We have been requested to state, for the instruction of the executor, whether the house and lot in LaGrange, given to the widow, in the seventh item of the will, is in addition to her equal portion of the real estate ? If this clause stood alone, we should be inclined to think that it was. Rut, by examining other parts of the will, the third item especially, our opinion is, that such was not the purpose of the testator.
Eor instance, if the widow married, his directions were, that his lands, as well as his town lot, should be sold, and the proceeds equally divided between the widow and the four younger sons. Looking at the whole will then, and interpreting this latter item in the light of the rest, and especially of the third clause, we are satisfied that the intention of the- testator was merely to indicate his wish, that during the life-time or widowhood of Mrs. Lewis, that she should occupy this place as a home for herself, as well as the younger and unfortunate children ; and that it was to constitute a part of his real estate,, and be equally divided between the widow and four younger sons, when the youngest should become of age. And it is apparent that the testator never conceived that Mrs. Lewis might die before this event happened.
The judgment of the Court below, therefore, must be reversed, as well for not charging the Jury as requested, as in giving the instructions which he did. It being the unanimous opinion of this Court, that Mrs. Lewis took a life estate only,, in the property left to her, and that, at her death, reverted to,, and became a part of the estate of Nicholas Lewis, subject to distribution, amongst his heirs at law, generally.