Jackson ex dem. Bush v. Coleman , 2 Johns. 399 ( 1807 )

Kent, Ch. J.

delivered the opinion of the court. The will of William Watson took away entirely the title of Mary Bush, as heir to her father. The testator gave to his wife the use of all his real estate, to use and dispose of tit her pleasure, and after her death, he gave the one third to his daughter Susannah in fee, and the other two thirds were to he disposed of at the pleasure of his wife, after the death of his grandson, Daniel Tice. This amounted to a devise in fee to his wife. It is to be distinguished from the case’ of a mere power, for here the estate was in the first instance devised to th w ife. It will be sufficient to fhention only two or three of the most analagOus cases' On the question. In Whiskon v. Cleyfon, (1 Leon. 256.) C. devised an estate to his godson after the death of his wife, and if he failed, then he willed all his part to the discretion ofhisfathet; it was held that the father took a fee, and that to will my lands at the disposition of or to will my lands to B. to give and sell at his pleasure, carried a fee; and that there was no difference where the devise was, that B. should do with the land at his discretion, and-the devise thereof to B. to do with it at his discretion, in Moore, 57. A. devised his lands to his wife, to dispose and employ them upon her and his son at her own will and pleasure. It was held, that she took an estate in fee. Again, in Timwell v. Perkins, (2 Atk. 102.) the devise was, I give nty house to A. for her oten use, to give away at her death io whom she pleases-; and in Goodtitle v. Ofway, 2 ils. 6.) the words were, a devise to B. during her life, and if she should have no issue, that she should have power to dispose thereof at her pleasure, and in both cases it was ruled that the devisee took a fee.

Whether the two nephews took a fee, or only an estate for life under the will of their aunt, is perfectly immaterial in the present suit, as the case states that they aré both living; and although the disposition of the two thirds of the estate by the wife was not to take effect until after the death-of Tice, the grandson, yet that event has also' happened. A title has accordingly been shown out of the' lessors of the plaintiff. We are, therefore, of opinion,that a judgment of nonsuit must be entered.

Judgment of .no ns nit.-