Cowles v. Cowles

The opinion of the court was delivered, by

Strong, J.

The testator gave to his wife Henrietta all his property, real, personal and mixed, to have and to hold the same expressly during her natural life, and added that at her death all the property devised or bequeathed to her as aforesaid, or so much thereof as might remain unexpended, should go to the testator’s children in fee. This conferred upon the wife, now Henrietta Cowles, a clear estate for life in the realty, and no greater estate. There is nothing to cast doubt upon this, except a supposed inference from the words of the devise in remainder. An implication of a greater estate in the devisee for life is thought to be found in the fact that the gift to the children in remainder was the property devised or bequeathed to the wife, or so much thereof as may then remain unexpended. But the express gift for life is not to be enlarged into a fee by a mere implication. Besides, the words relied upon are satisfied by applying them to the personal estate, and therefore there is no necessary implication affecting the realty. Or if applied to realty as well as personalty, they refer only to what had before been given to the wife, as given to her, in the language of the will, “ devised as aforesaid,” that is, devised as life estate. If so, the gift over is the property, real and personal, and what may remain of her life estate. In no aspect of the will can it be considered as giving to Mrs. Cowles more than an estate for life. The heir is not to be disinherited by anything less than a clearly apparent intention to pass the estate in another line of succession.

Judgment affrmed.