Wilson v. McKeehan

The opinion of the court was delivered, by Thompson, J. The testator, William Davidson, deceased, in order to make a suitable provision for his widow, carved out in very express terms in her favor, a life estate in his farm with contingent remainders in fee. The contingency referred to happening during her life gave her a fee in an undivided moiety of the land, and we are asked to hold that this result cut out her life estate in the other moiety. We do not see any controlling reason for this as incident to the happening of the contingency referred to, and certainly the reason is not to be found in any words used or provisions attempted to be made to modify this result. The remainder-men take under the will and in no other way; they took therefore subject to its very terms, one of which was the continuance of the preceding life estate. Their moiety, so far as the life estate in the widow was concerned, was unchanged by the happening of the event which gave them a fee. Unless we so hold, we defeat the intent of the testator plainly expressed in the following clause: — “ I give and devise to my beloved wife and my three children all the proceeds of my farm during her natural life; and my wife the privilege of living with the family in the dwelling-house as long as she does live.” We have already held this to be a joint devise for life to the widow and children and the survivor or survivors. She for her own life and they per auter vie. It is, therefore, a life estate in her whether she survived the children or not; but she did survive them all many years. Here then we have a life estate in the entire farm, created by a devise of the proceeds with the expressed intent that possession should accompany it during life. The rule is to regard the first taker as the preferred object of the testator’s bounty, and in doubtful cases, the construction leans in favor of making the gift to him or her as effectual as possible: 11 Harris 388. The wife was unmistakeably the first object of the testator’s bounty; and we see nothing in the words of the will or in its provisions to entitle the plaintiffs below to any profits in the land during the life of Mrs. Davidson. The judgment is affirmed.