Sec. 970. Construction of wills-Value of precedents. Precedents in will cases are not very satisfactory aids in reaching a conclusion in the work of interpretation, for each will differ in its scheme as in its form of expression. Clay v. Wood, 153 N. Y. 134 (47 N. E. Rep. 274). In the recent case of Heard v. Read, 169 Mass. 216 (47 N. E. Rep. 778), the supreme court of Massachusetts say: "The present tendency in this country is against absolute rules of construction, and in favor of a careful consideration of the particular language of each will, as well as of its general scope and purpose, in order to determine, in view of the circumstances known to the testator when the will was made, the testator's intention as expressed in it. Sears v. Russell, 8 Gray 86; Knowlton v. Sanderson, 141 Mass. 323 (6 N. E. Rep. 228); Fargo v. Miller, 150 Mass. 225 (22 N. E. Rep. 1003; 5 L. R. A. 690); Wood v. Bullard, 151 Mass. 324 (25 N. E. Rep. 67; 7 L. R. A. 304); Peck v. Carlton, 154 Mass. 231 (28 N. E. Rep. 166); Eager v. Whitney, 163 Mass. 463 (40 N. E. Rep. 1046); Delaney v. Mc Cormick, 88 N. Y. 174; Hardy v. Gage, 66 N. H. 552 (22 Atl. Rep. 557); Robinson v. Orphan Asylum, 123 U. S. 702 (8 Sup. Ct. Rep. 327)."

Sec. 971. Construction of wills-Rules for-General principles. Wills will be construed in favor of vesting estates. Brice v. Horner, Tenn. (38 S. W. Rep. 440). Citing, Schofield v. Olcott, 120 Ill. 362 (11 N. E. Rep. 351); Byrnes v. Stilwell, 103 N. Y. 453 (9 N. E. Rep. 241; 57 Am. Rep. 760); Gobel v. Wolf, 113 N. Y. 405 (21 N. E. Rep. 388; 10 Am. St. Rep. 464). Courts are averse to construing conditions to be precedent where they might defeat the vesting of estates under a will. Congregational Church Bldg. Soc. v. Everett, 85 Md. 79 (36 Atl. Rep. 654; 60 Am. St. Rep. 308). A definite devise of a less estate than the fee will not be enlarged to a fee simple because no disposition is made of the fee by the will. Rusk v. Zuck, 147 Ind. 388 (45 N. E. Rep. 691). In the absence of an intention to that effect clearly manifested, a devise in fee will not be cut down to a lesser estate by a subsequent clause providing how the propery shall go in case the devisee dies without children or issue.

Keating v. McAdoo, 180 Pa. St. 5 (36 Atl. Rep. 218); In re Engel's Estate, 180 Pa. St. 215 (36 Atl. Rep. 727). Nor by the expression of the testator's "desire and request" as to what use and disposition the devisee shall make of the property. Clay v. Wood, 153 N. Y. 134 (47 N. E. Rep. 274). Where the punctuation in a will accords with the sense, the use of a capital in the middle of a sentence may be regarded as accidental and should not be permitted to confuse a construction otherwise reasonably clear. Kinkele v. Wilson, 151 N.

Y. 269 (45 N. E. Rep. 869). Where the language is not clear, or where the meaning is doubtful, the courts will not favor an interpretation that revokes a devise once given, or disinherits an heir, or devests a remainder in fee once vested, or excludes issue from a remainder originally limited upon the life estate of a parent, or prevents the issue of a deceased child from participation in the distribution of the estate. Goodwin v Coddington, 154 N. Y. 283 (48 N. E. Rep. 729). The partial revocation of a will by codicil will not be extended beyond the clear intention of the testator. McGehee v. McGehee, 74 Miss. 386 (21 So. Rep. 2). A devise to one for life with remainder to his heirs, does not lapse by the death of the first devisee before the death of the testator. Brice v. Horner,

Tenn. (38 S. W. Rep. 440). The right of an illegitimate child of a devisee to take property under the will as an "heir of his body" is to be determined by the law of the testator's domicile at the time of the execution of the will. Keith v. Eaton, 58 Kan. 732 (51 Pac. Rep. 271). A devise of the use and occupancy of land passes an estate in the land, and consequently a right to let or assign it, and is not confined to the personal use or occupancy of the property, unless the context clearly calls for the more limited construction. Wilson v. Curtis, 90 Me. 463 (38 Atl. Rep. 365). Every devise of a future interest which is not preceded by an estate of freehold created by the same will, or which being so preceded is limited to take effect before or after and not at the expiration of such prior estate of freehold, is an executory devise. Ryan v. Monaghan, 99 Tenn. 338 (42 S. W. Rep. 144). Where a testamentary disposition is made to a class and possession is postponed, it includes all persons within the class at the time to which possession is postponed. Cal.

Civ. Code, § 1337, applied. In re Cavarly's Estate, 119 Cal. 406 (51 Pac. Rep. 629). A future and contingent devise or bequest to a class takes effect on the happening of the contigency on which the limitation depends only in favor of those objects who at that time come within the description. In re Allen, 151 N. Y. 243 (45 N. E. Rep. 554). In the absence of a contrary intention clearly expressed. where there is a devise to several persons by name, to be equally divided among them, they take as tenants in common and not as joint tenants or as a class. Frost v. Courtis, 167 Mass. 251 (45 N. E. Rep. 687). Where a devise is to several persons designated by name, in equal shares, without the use of any word applying strictly to a class, or anything requiring a class to satisfy the scheme of the will, the devisees take distributively, as tenants in common, and not as a class and the interests of those dying before the testator are deemed to have lapsed. Moffett v. Elmendorf, 152 N. Y. 475 (46 N. E. Rep. 845).

Sec. 972. Construction of wills as to property embraced-Statutes construed-Particular cases. Under Wis. Rev. Stat., § 2278, providing "every devise of land in any will should be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate," it is held that a residuary devisee takes at once on the death of the testator all the real estate devised to him, subject only to the intervening life estate. Hall v. Hall, 98 Wis. 193 (73 N. W. Rep. 1000.) A statute (Conn. Gen. Stat., § 537) which provides that "every devise purporting to convey all the real estate of the testator shall be construed to convey all the real estate belonging to him at the time of his decease, unless it shall clearly appear by his will that he intended otherwise," is held not to apply to a devise which provides that" from and after the decease of my wife, I give my brother, W. E., the residue or remainder of my real estate, being a lot of land adjoining his own", so as to pass to such brother land subsequently acquired by the testator which did not join the brother's land or the lot mentioned. Whecler v. Brewster, 68 Conn. 177 (36 Atl. Rep. 32). Where a will specially refers to a particular recorded deed as containing a

description by metes and bounds of the property intended to be devised, it will pass title only to the land embraced in such deed, although a partial intestacy may result from such construction, as the rule in respect to presumptions against partial intestacy can have no controlling effect where the language used by the testator is plain and unambiguous. Oldham v. York, 99 Tenn. 68 (41 S. W. Rep. 333). A devise of the testatrix's "unimproved" real estate passes leased premises upon which are buildings belonging to her tenants. Coles v. Coles, N. J. Eq. (37 Atl. Rep. 1025). Where a testator's residence and tenant houses owned by him were all situated upon one lot which he acquired at a single purchase, a devise of a life estate in " 'my home place where I now live," was held to carry only the house occupied by the testator and the enclosure about it, with such use of the outbuildings and entrances as he enjoyed. McKeough's Estate v. McKeough, 69 Vt. 34, 41 (37 Atl. Rep. 275). A testator's devise of

all the money and estate and property of every kind to which I may be entitled at the time of my death," was held to pass to the devisee his estate in reversion in land which he had conveyed to another for life with the provision that it should rever to him on the death of the grantee. Balkely v. Quinlan, Ky. (39 S. W. Rep. 513). A testatrix's devise of "real estate" derived from her deceased son, does not pass land which she purchased upon foreclosure of mortgages which he bequeathed to her. Coles v. Coles, Eq.

(37 Atl. Rep. 1025).

N. J.

Sec. 973. Construction of wills-Devise of remainder after termination of life estate. Where a devise over after a life estate rests upon a contingency the happening of which is an impossibility, the devise over fails. Hadley v. Hadley, 147 Ind. 423 (46 N. E. Rep. 823). A devise of a testator's "home property" to his wife "for and during her natural life, for the joint use and benefit of herself and four children," with fee simple title to go to the children share and share alike, is held to create an active trust for the joint use and benefit of the wife and four children, and that the limitation over takes effect on the termination of the life estate. Partition of such estate cannot be had during the continuance of the trust.

Tenn.

(38 S. W. Rep. 109).

Muldoon v. Trewhitt, Construing a devise to the testator's wife for life providing that "after the death of my said wife, all the remainder of my estate, both real and personal, shall be divided equally among my surviving children and their heirs," it is held that the words of survivorship relate to the time of the testator's death and not to the time of the widow's death. Grimmer v. Friederich, 164 Ill. 245 (45 N. E. Rep. 498). Where a testator devised lands to his wife during her life and after her death to his three sons, H., A. and A. J., “ during the term • of their natural lives and then to the children that each may have surviving him," it is held that the children take per stirpes. Bethea v. Bethea, 116 Ala. 265 (22 So. Rep. 561).

Sec. 974- Construction of wills-Devise over in case first taker dies without issue. Ordinarily a stipulation in a will conditioned upon the devisee dying without issue or children, has reference to his death before the testator. In re Engel's Estate, 180 Pa. St. 215 (36 Atl. Rep. 727); Moore v. Gary, 149 Ind. 51 (48 N. E. Rep. 630). In the absence of a stipulation to the contrary, where there is a devise over to a certain class, in the event of the first devisee dying without issue, the persons entitled to the benefit of such a devise are to be determined as of the time of the decease of such devisee. Welch v. Brimmer, 169 Mass. 204 (47 N. E. Rep. 699); Madison v. Larmon, 170 Ill. 65 (48 N. E. Rep. 556; 62 Am. St. Rep. 356). Although in Virginia the settled rule is "that after a bequest or a devise of an estate for the life of the first taker, words of survivorship in a will are always to be referred to the period of the testator's death when no special intent appears to the contrary," it is held that where real estate is devised by a testatrix to her nephew, "and at his death to his surviving children," and the will made other bequests to "his children," all of such nephew's children living at his death take an estate in the property devised. Cheatham v. Gower, 94 Va. 383 (26 S. E. Rep. 853). Where a devise to a testator's daughter for life with remainder to the heirs of her body subject to the right of her surviving husband to a life interest therein, provided that should any of the "children herein named die without issue, the property shall revert to the sur