FROM ROCKINGHAM CIRCUIT COURT. The testator has given to his wife, Sally Smith, all his estate, real and personal, goods and chattels, during her natural life.
It would seem as if there could be no doubt that by this clause the testator intended to give his wife a life estate in all his property. The effect of that would be to give her the use and income during her life of everything, excepting such personal property as would perish in the using, and that she would have a right to consume.
Under this clause, taken by itself, there would be no doubt that the income would belong to the widow, and the savings and accumulations of it would be absolutely hers. Is there anything in the will which, by any fair construction, can be held to limit this devise? It is claimed that the provision for the payment of her debts as well as his, and the erection of gravestones for her as well as for himself, and the payment of her funeral expenses as well as his own, indicates rather his intention that she should have a right to use as much of the property as she needed to use during her life, and to dispose of the balance, either principal or interest, by his will. I cannot find evidence of any such intention in any part of the will. No doubt the testator had, and with reason, entire confidence in his wife's integrity and prudence, and fully believed that if she failed to get her support from the income, and left debts behind her, it would not be through any fault of hers. It was very proper, therefore, that he should order that all her debts as well as his own, and all their joint debts, if any there were, should be paid before any other parties should receive any of the property. This was a natural and proper provision to be made, and I cannot see that it has *Page 156 any effect in limiting or controlling the clause in the will under consideration.
The other part of the will relied on is his attempt to dispose of his wife's clothing. The argument seems to be that he considered everything which his wife had, or might afterward have, as subject to his control; and from this is attempted to be drawn the conclusion that he did not intend to give his wife a life estate in the property, but only a support out of it, and that he considered everything which she had or bought to be always a part of his estate, and subject to his disposition by will. According to this view, if she were keeping house, it would be improper for her to invite a guest, because by so doing she would consume some portion of what ought to be the surplus.
I cannot draw any such conclusion from this bequest. The wife was appointed executor of the testator's will, and he might well rely upon her to see this bequest properly carried out.
Such appears to me to be the construction of this will, according to the principles of common sense. No technical rule has been suggested by which what seems to me the plain and evident meaning of the testator can be controlled. I think, therefore, that whatever estate of Sally Smith is so separated that it can be seen that it is no part of the original estate of her husband, should be held by the administrator on her estate, to be disposed of by him according to law, and that it is not controlled by the will of her husband.