Wade v. Russell

By the Court. Benning, J. delivering the opinion. Whatever kind of estate it was, which the testator intended' to create in the daughters, he intended to create it in them, whether they ever married or not. This is clear. And therefore, it cannot be said, that he intended only a separate estate in them. Such an estate could only exist in them, in case they married. Indeed, the words of the will are as suitable to-the creation of estates in sons as in daughters. [1.] And it is well settled, that to defeat the marital right,, the intention to create a separate estate in the wife must be unequivocal. (Hill on Trustees, 421.) And in this, the intention to create a separate estate cannot be said to be unequivocal. So we think the non-suit should not be disturbed.