Chesebro v. Schoolcraft

Headnote

Where a testator, by his last will and testament, gave a life-estate in all his lands an,d tenements to his widow, and then proceeded and parcelled ont his estate by subsequent clauses tg three daughters, making the devises to two of them subject to the life-estate of the widow, but in. the devise, to thojirsf and last clauses of the will were not necessarily repugnant; and that consequently the widow was entitled to a life estate,^ as. well in the, property (Jevised to the third daughter, as. in that devised to the others.

This was- an action of ejectment, tried at the Schoharie circuit in October, 1839, before the Hon. John- P. Cushman one of the eircuit- judges.

The suit was brought for the recovery of about thirty-five acres of land. The plaintiff is the widow, and the defendant the husband of Phebe, one of the daughters of Christopher *Ohesebro, upon the [ *634 ] true construction of whose last will and testament the rights of the parties depend. By the first clause of the will, the testator gives and bequeaths unto his wife, Mary Chesebro, the rents and profits of all his lands, tenements, and real estate, wheresoever being, in the state of New-York ; also all his personal property. He then gives to her all his right in his father’s estate, and also a lot, particularly described, and concludes this clause of the will in these words : “ This right I give and bequeath unto my widow, Mary, so long as she lives, after my funeral charges is paid, and the rest of my debts.” Secondly, he gives specific lands to his daughter, Betsey, authorizing two of her sons to sell the same, and to dispose of the proceeds in a manner particularly directed, concluding in these words; “ This they shall have full power to do after the 'death of the widow, Mary Chesebro.” Thirdly, he gives certain lands to his daughter, Phebe, “ after the death of my widow Mary.” And fourthly, he gives certain lands to his daughter, Phebe, without any reference whatever to his widow. The lands devised to Phébe, are the premises claimed to be recovered. The judge instructed the jury, that the plaintiff was entitled to recover, and the jury found a verdict accordingly. The defendant, on a case made, moves for a new1 trial.

insisted, that when twb clauses in a will are repugnant, the first must be rejected, and the last must stand as the will of the testator. The devise to the wife of the defendant is without reservation, and consequently the plaintiff was hot entitled to recover. The limitation imposed upon the other devises in the will shows that the testator intended that Phebe should take a fee unincumbered with a life-estate.

insisted, that the prevailing rules of construction applicable to the will in question are, that effect, if practicable, is to be given to every part of the instrument; and that the intention of the testator, to be collected from whole will, is to prevail. Upon these principles he said the judge Correctly instructed the jury, that the plaintiff *was entitled to recover. He cited Powell on Devises, 360, n ; [ *635 ] 4 Mass. R. 208 ; 2 Plowden, 539, 541; 20 Wendell, 53.