The intent and effect of the second paragraph of the will are unmistakable. The right therein given to William Scanlin and his family to make their home on the premises in which the testator's wife, Martha, was given a life estate contemplated, as to his "family," a joint occupancy, with him, and a continuance of his life use during such occupancy of the premises. The succeeding sentence has no reference to that occupancy, but deals solely with the conditions under which a bequest to the testator's wife of $800, in addition to her life estate, might become effective, i.e., only if William die before her leaving no widow or children or grandchildren surviving him. This paragraph vested in the testator's widow alternate interests; the first, the life estate, effective in any event; the second, the additional bequest, dependent upon the existence, at William's death, of the conditions specified. Allen v. Almy,87 Conn. 517, 523, 89 A. 205. Since William survived her, the only present importance of this clause is such assistance as it may afford in construing the further provisions of the will.
The first portion of the third paragraph — "I give, devise and bequeath to may said adopted son William *Page 312 James Scanlin to him, his heirs and assigns forever all my estate both real and personal subject to the life use of my wife Martha as aforesaid" (in paragraph second) is, taken by itself, ample to pass a fee, subject only to the life use of the testator's widow. The question to be determined is whether that which follows the above quotation is to be given such effect as to further modify and reduce this fee by imposing upon it a life use in a widow of William if, although he survived the testator's widow, he should, upon his subsequent decease, leave no surviving child or grandchild but should leave a widow. The answer depends upon whether the decease of William, therein mentioned, means his death during the life of the testator, or during the life of the testator's widow, or at any time after the death of the testator, whether before or after the death of the widow.
The decease of William, mentioned in the second paragraph of the will, expressly refers to his death before that of the testator's widow. One phrase in the third paragraph may be taken as a significant indication that his decease as therein referred to is used in the same sense as in the preceding paragraph. It is provided that if at his decease (not leaving a child or grandchild), he shall leave a widow, she "shall have a right to make it her home on said premises" (the premises mentioned in the second paragraph) "andafter the death of my said wife Martha" she shall have the life use of the residue of the estate. The words which we have italicized are unnecessary and inappropriate if decease of William after that of Martha is referred to. On the other hand, they are applicable to and consistent with the situation which would have been created had William died, leaving a widow, prior to the death of Martha.
Such a construction derives additional support from *Page 313 consideration of the practical results which would ensue from a contrary view. It cannot be supposed that the testator contemplated or intended that the fee which he clearly purposed to pass to William, if he was in a situation to take it, should remain, during the entire life of William, subject to potential rights of a wife whose existence was, at the time, and remains, only an increasingly remote possibility. White v.White, 52 Conn. 518, 522.
However, even if this provision be not accorded such effect as to make it clear that the decease of William, for the purposes of this paragraph, means his death before Martha, the language is, at least, susceptible of that meaning as well as to decease in the lifetime of the testator or to death at any time after that of the testator. Certain settled rules of testamentary construction then become applicable and operative. One of these is that an express and positive devise of an estate in fee followed by a provision capable of construction as cutting down the fee to an inferior or lesser estate will only be so construed "when the lesser estate is expressed in positive terms and in language which is unambiguous and incapable of any but the one meaning."Hull v. Hull, 101 Conn. 481, 486, 126 A. 699;Burnham v. Burnham, 101 Conn. 529, 126 A. 704;Fanning v. Main, 77 Conn. 94, 58 A. 472; Mansfield v. Shelton, 67 Conn. 390, 394, 35 A. 271; Burr v.Tierney, 99 Conn. 647, 651, 122 A. 454; MeridenTrust Safe Deposit Co. v. Squire, 92 Conn. 440,103 A. 269; Clark v. Baker, 91 Conn. 663, 666, 109 A. 9;Strong v. Elliott, 84 Conn. 665, 671, 81 A. 1020.
Equally well established is the rule that "`when in a will an estate in fee is followed by an apparently inconsistent limitation, the whole should be reconciled by reading the latter disposition as applying exclusively to the event of the prior devisee in fee dying in *Page 314 the lifetime of the testator.'" Hull v. Hull, supra, 485;Walsh v. McCutcheon, 71 Conn. 283, 41 A. 813;Meriden Trust Safe Deposit Co. v. Squire, supra, 447; Lawlor v. Holohan, 70 Conn. 87, 90, 38 A. 903, and cases cited; Gay v. Dibble, 72 Conn. 590,45 A. 359.
Since William J. Scanlin did not predecease the testator, the gift of the life use to his widow never became effective unless the intention of the testator, gathered from the entire will, was that the widow of William should take the life use whenever William should die, whether before or after the decease of the testator. We find in the provisions of the will no expression of such an intent; indeed, as is above indicated, the intent, so far as expressed, is to the contrary. Under our rules of law, therefore, the provision for a life estate in the widow of William is not to be construed as being intended to take effect in case of his decease after that of the testator, but only if he died before the testator.
The question presented by the fourth paragraph of the will — whether the gift over to the testator's nephews cut down the prior devise, under paragraph third, of the fee to William — is governed by the same rules of law to which we have adverted. Under these rules the fee is not to be cut down by the subsequent gift over, since it is presumed that such gift was intended to take effect only upon the decease of William before the testator, unless the will exhibits a contrary intent, and this it does not do.
Our answer to the first question reserved — that the plaintiff takes an estate in fee after the death of Martha Scanlin — also sufficiently covers the remaining questions.
No costs will be taxed in this court.
In this opinion the other judges concurred.