Birkbeck v. Wadsworth

Opinion by

Mr. Chief Justice Mitchell,

If the testator had devised the house to his wife and then directed the conversion of all the rest of his real estate, there would have been no doubt, and yet the meaning is clearly the same. What he said was that the real estate should be converted into cash with the exception of the property at Dana and Grove streets, which should be “ held in reserve for his widow.” The expression, “ held in reserve,” is not apt, nor in itself entirely clear, but the testator certainly meant the house was not to be converted. His wife was to have it, and the expression, “ held in reserve,” must be taken as equivalent to what he said about the piano for his daughter, that it was to be “ set apart ” for her. It being clear, therefore, that he meant the house to go to his wife in the first instance, the statutory presumption is that his entire estate in it passed to her. There is no devise over or anything showing contrary intent.

Judgment affirmed.