Holme v. Harrison

The opinion of the Court was delivered by Sergeant, J. The devise to the widow of “ a house to live in,” is but a life-estate. The garden is an incident to the house ; and the same interest passes. As to the other property the testator devises to his wife “ one-third part of all the estate.” The words “ all the estate” are now well settled to be referable to the quantity of interest, and to pass the fee. They therefore give her a fee-simple in all the rest of the property not previously disposed of. In the first-mentioned premises, therefore, Frances Maghee had an estate for life. In the rest of the property referred to, she had a vested estate in fee-simple in one-third part thereof, which by the partition was allotted to her and her heirs, in the second-mentioned premises in the case stated; and therefore, in the second-mentioned premises, she had an estate in fee-simple. Judgment must be entered according to the case stated, for the plaintiff, for one-ninth of the first-mentioned premises ; and for the defendant for the second-mentioned premises. Judgment accordingly.