Cooper v. Pogue ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

This contention arises under a clause in the last will and testament of Robert Pogue. It is this: “ to my beloved wife, Sarah Pogue (so long as she remains my widow), I give all the income of the home farm, on which I now live, containing two hundred acres more or less, with all the tenements and appurtenances belonging thereto, together with all the products arising therefrom, also the mansion house in which I live, together with all belonging to it, and all that is in it, or about it, I give to my beloved wife, Sarah Pogue, the same to be hers and to belong to her for ever.”

The question is, what estate did Sarah Pogue take in the home farm and mansion house thereon ?

In the clause quoted the words “I give” are used twice, once before the use and product of the real estate are devised, and once after the personal estate is specified. It begins by declaring, “ to my beloved wife, so long as she remains my widow, I give all the income of the home farm * * * with all the tenements and appurtenances belonging thereto, together with all the products arising therefrom, also the mansion house in which 1 live.” If the clause ended here, there would be no reason to doubt either the intention of the testator or the legal effect of the devise. In clear and express language the income and profits of the lands were given to her. only so long as she remained his widow. There is not only an absence of words necessary to pass a fee, but there is the express use of words giving a less estate. The gift is unequivocally limited to the time that she shall remain his widow. At the latest the interest devised ended at her death; but would end sooner in case of her marriage. While a devise of the income and profits of land is a devise of the land itself, yet it is a devise of it for no longer period of time than the testator gave the income and profits: France’s Estate, 25 P. F. Smith 220. The income and profits having been limited to the duration of her widowhood, her estate in the land was limited to the same period of time. She took an estate for life, because it might possibly last for life, but liable to be determined sooner, on the happening of the contingency of her marriage: 2 Black. Com. 121; 4 Kent’s Com. 26; Rodgers v. Rodgers, 7 Watts 15. It is not a devise upon condition, nor one the object of which is to impose a penalty or forfeiture; but it is a conditional limitation which marks the extent of the duration of the interest given: Bennett v. Robinson, 10 Watts 348.

The clause proceeds, “ together with all belonging to it, and all that is in it, or about it, I give to my beloved-wife, Sarah Pogue, the same to be hers and to belong to her for ever.” “ It,” manifestly refers to the mansion house stated in the preceding sentence, and the property in and about the house he gives to her. This evidently means personal property. How does he give it?- Not as he has given the products of the land so long as she remains his widow, but “to be hers and to belong to her for ever.” The distinction is thus clearly made between the real and the personal estate. The former is given to her for life, the latter for ever. This view gives effect to the letter and spirit of the will. It would be giving an unnatural interpretation to the clause to say the latter “I give” refers to the use and products of the lands. They had already been given in distinct and appropriate language. It would do still greater violence to the reading of the will to hold that the gift “to her for ever,” which following immediately after the personal estate, had any reference to that other property that he had just said she should have only so long as she remained his widow. As the last part of the clause reasonably and naturally applies to the personal estate only, we will not assume that it was intended to contradict the language he had used in regard to the real estate, nor to change the estate therein given. We see nothing obscure or ambiguous in the will. It does clearly appear therein, that the testator intended to devise to his wife, an estate in the land less than a fee. The fact that he did not devise the remainder is insufficient to overcome or change the effect of the language giving his wife a life-estate only. It follows that the parol evidence offered was insufficient to change its legal effect, and the title of the testator’s heirs must prevail.

Judgment affirmed.