The argument in support of the motion is, that the words “ then remaining,” in the introduction to the devise over after the death of the widow, import a power of unlimited disposition in her which is consistent only with an estate in fee in the first taker and makes void the devise over. It is claimed that the case is within the rule applied in McClellan v. Larchar, 18 Stew. Eq. 17. The rule invoked is subject to an exception which has-been clearly and repeatedly defined in the adjudications of our courts. The leading case is that of Borden v. Downey, 7 Vr. 460, in which, in the court of errors and appeals, the rule and exception were stated by Mr. Justice Depue, who pronounced the opinion of that court, in this language:—
“We may lay it down as an incontrovertible rule, that when an estate is given to a person generally or indefinitely, with a *27power of disposition, it carries a fee, and the only exception to this rule is where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case, the devisee for life will not take an estate in fee.”
In the same case, in the supreme court (6 Vr. 74), Chief-Justice .Beasley said that where the estate for life is expressly given and a power of disposition is annexed to it, the fee does not pass, but only a naked power to dispose of the fee. In this view he was sustained by the court of errors and appeals.
In the present case the gift of the residue of the testator’s estate to his widow is expressly for her life, and, if the words “ then remaining ” are held to bestow a power of disposition, the case is undoubtedly within the exception so clearly defined in Borden v. Downey. It may, however, be seriously questioned whether those words, in the connection in which they are used, do import a power of disposition, or whether they simply refer to the condition in which the residue of. the estate will be left at the death of the wife—worn and partially consumed by use. Before he uses the words, the testator makes three specific bequests from the residue of his estate, thereby treating the residue as though it were not liable to disposition, in that he assumes, with confidence and certainty, that the things he specifically gives will remain at the death of his wife. The implication that a power of disposition was intended does not appear to me to be either strong or necessary. I am inclined to believe that-the testator did not mean to give such power.
It is, however, neither necessary nor proper that I shall now attempt to ascertain the meaning of the words “ then remaining ” &c. The bill does- not set out the testator’s will in extenso, and I, therefore, being on this motion confined to the allegations of the bill, have not that entire instrument before me. Whether a power of disposition be given, or a reference only to the consumption which is incident to the use of the residue of the estate by the widow, during her life, is intended, it is clear that the present motion cannot prevail, for, even if a power of disposition be given, it is a mere naked power to dispose of the fee,' and not *28the fee itself, and, as that power has not been exercised, the widow now stands, with respect to the land in question, subject to all the liabilities and duties of a tenant for life, among which is the duty to pay current taxes.
I will deny the motion, with costs.