Ky.

viving brothers and sisters or their heirs," it is held that the death of the daughter without surviving children did not defeat the husband's life estate. Hatchett v. Henderson Trust Co., (39 S. W. Rep. 235). Where a testator's devise of real estate to his two grandsons, naming them, sub. ject to a life estate in favor of their mother, provided that in case either of them "should die before their mother, or before they arrive at the age of 21 years, then the one living shail possess the whole of the above farm, and in case both die before their mother, or before they arrive at the age of 21 years, leaving no issue, then I ordain and beqeath the whole of the above described property to" certain other grandchildren named, it is held that where one of the grandsons after passing the age of 21 died before his mother, leaving a wife and children, his children are entitled to inherit his portion upon the death of his mother. Kelley v. Kelley, 182 Pa. St. 131 (37 Atl. Rep. 830).

Sec. 975. Construction of wills-Devise for life with power of disposal. Where a testator's will gives his wife a life estate," with full power to use and dispose of the same as she shall deem right and proper," and contains a devise over of the remainder of the estate after the death of his wife, she cannot dispose of the estate by will. Ford v. Ticknor, 169 Mass. 276 (47 N. E. Rep. 877). Construing a will which gave to the testator's wife the use, income, improvements and avails of all the rest and residue of my estate whether real or personal, for her to have and to hold, use, possess and enjoy so long as she remains my widow, or until her decease, and a codicil appointed her admistratrix with the privilege of using as much of the principal as she may desire for her comfort and maintenance, with full power and authortiy to sell and legally convey any of my estate, both real and personal as she may see fit and to freely use the avails thereof as long as she remains my widow, it is held that the widow does not take an absolute estate in the rest and residue; that she is entitled to the possession of the real estate; that she is confined to what she may require" for her comfort and proper maintenance and support;" and so long as she conducts herself reasonably and in good faith, the amount she may appropriate to her support

must be left to her own discretion, but wastefulness may be enjoined. Little v. Geer, 69 Conn. 411 (37 Atl. Rep. 1056). A devise by a testatrix to her sister for life" to be disposed of at her discretion, at her decease to go to my next of kin," limits the devisee's power of disposition to her life and she cannot dispose of the property by will. The words "next of kin," mean the next blood relation of the testatrix at the time of her death. Keniston v. Mayhew, 169 Mass. 166 (47 N. E. Rep. 612). Where property devised to the testator's wife for life was charged with her support and power given her to sell and convey it absolutely, but it was provided that she should have only a life estate in the proceeds of such sale, it is held that her conveyance to one in consideration of his agreement to support her for life, did not give the grantee a fee, but such grantee might elect to consider the conveyance as creating a lien on the land for the value of such support less the value of the use of the land. Gadd v. Stoner, 113 Mich. 689 (71

N. W. Rep. 1111).

Sec. 976.

Construction of particular wills. Where a devise to a testator's daughter empowers her to dispose of one-third of the estate devised upon her death, the other twothirds to go to her children if she has any, if not, "to be distributed to my other children as she may direct," it is held that the devisee dying without children cannot dispose of twothirds of her estate among the children of the testator so as to disinherit any one of them. Clay v. Smallwood, 100 Ky. 212 (38 S. W. Rep. 7). Where a devise is made to the testator's son, R., and daughter, C., of a certain farm, in equal shares, which provides that " if my daughter, C., dies unmarried her brother, R., shall have what remains of her share of my property, and if she marries, then her brother, R., shall pay her $1,000 as her share of my estate," it is held that the quoted words refer to the marrying or dying unmarried during the testator's lifetime and not after. In re Jackson's Estate, 179 Pa. St. 77 (36 Atl. Rep. 156). Where a will gave the testator's son an option to purchase certain lands at a fixed price after the termination of the life estate created therein by the will, the time within which such option is to be exercised not being mentioned or limited nor any particular mode for its

exercise indicated, and it appears that before the termination of the life estate the son had fully determined to exercise the option, but was prevented from doing so afterwards in any formal manner by disease or death, it is held that the option may be exercised by his heir. Parker v. Seeley, 56 N. J. Eq. 110 (38 Atl. Rep. 280). A will which gave to the testator's wife all of his property real and personal "for her sole benefit," and after appointing her guardian of his son and executrix of the will, provided, "but if one or the other dies, the one that survives the other take it all," is held to give the wife a life estate with remainder in fee to the son, but if she survive the son her life estate will be merged in the fee. In re Littlewood's Will, 96 Wis. 608 (71 N. W. Rep. 1047). A provision in a devise of land to F., declaring that in case it "shall at any time be subjected, or sought to be subjected, by process of law, to the debts of F., then his estate therein shall co instanti cease," is not violated by the issuance of an execution against F., upon which a homestead exemption was laid off in other land, where the execution was returned endorsed "no property found after said homestead laid off." Bryan v. Dunn, 120 N. C. 36 (27 S. E. Rep. 37). Particular will of one holding a life estate under a devise, held to operate as an execution of the power of disposition of the fee, given to her by the will under which she claims. Bullerdick v. Sadlier, 153 N. Y. 551 (47 N. E. Rep. 920; 40 L. R. A. 666). Where property was devised and bequeathed to a named person, to be held by him in trust for the sole and separate use of a daughter of the testator for and during the term of her natural life, with remainder to the child or children of such daughter living at the time of her death, and in default of such child or children, then to the right heirs of the daughter, the legal title passed to the trustee as to the life estate only. The remainder thus created was a legal, and not an equitable, estate. A successor of the trustee named in the will could not, even under an order granted by a chancellor, sell any greater interest in the property which passed under such a devise than the estate of the life tenant therein. Fleming v. Hughes, 99 Ga. 444 (27 S. E. Rep. 791). For cases which depend upon particular facts and construe particular wills, see, as to estate devised, Hopkins v. Keaser, 89 Me. 347 (36 Atl. Rep. 615); Heard v.

Read, 169 Mass. 216 (47 N. E. Rep. 778); Bailey v. Fisher, Ky. (38 S. W. Rep. 140); Calmes v. Eubank, Ky. (40 S. W. Rep. 669); Collins v. Williams, 98 Tenn. 525 (41 S. W. Rep. 1056); Field v. Burbridge, Ky. (42 S. W. Rep. 912); Young v. Harkelroad, 166 Ill. 318 (46 N. E. Rep. 1113); as to when an estate vests, Wilhelm v. Calder, 102 Ia. 342 (71 N. W. Rep.214) ; Riggan v. Lamkin, 120 N. C. 44 (26 S. E. Rep. 918); as to creation of a defeasible fee, Malona v. Schwing, Ky. (39 S. W. Rep. 523); Daniel v. Daniel, 102 Ga. 181 (28 S. E. Rep. 167); as to creation of a vested estate, In re Snyder's Estate, 180 Pa. St. 70 (36 Atl. Rep. 420); as to creation of valid executory devise, Ryan v. Monaghan, 99 Tenn. 338 (42 S. W. Rep. 144); as to limitation of absolute devise by subsequent clause, Timas v. Neidt, 101 Ia. 348 (70 N. W. Rep. 203) ; as to creation of remainder in joint tenancy, Simonds v. Simonds, 168 Mass. 144 (46 N. E. Rep. 421); as to devesting a remainder by codicil, Goodwin v. Coddington, 154 N. Y. 283 (48 N. E. Rep. 729); as to power of sale given an executor, Potts v. Breneman, 182 Pa. St. 295 (37 Atl. Rep. 1002); Petit v. Flint & P. M. R. Co., 114 Mich. 362 (72 N. W. Rep. 238): as to the power and authority of a joint trustee, Duckworth v. Ocean S. S. Co., 98 Ga. 193 (26 S. E. Rep. 736); as to designation of beneficiaries, Rhode Island Hospital Trust Co. v. Peckham, 20 R. I. 332 (38 Atl. Rep. 1001); as to residuary clauses, Moffett v. Ellendorf, 152 N. Y. 475 (46 N. E. Rep. 845); as to property embraced in a devise of "the old home. stead," Moore v. Powell, 95 Va. 258 (28 S. E. Rep. 172).

Sec. 977. Devises and bequests in lieu of dower -Election. A devise of a life estate to a widow will bar her right to dower unless she elects otherwise, although it contains a provision for its termination in case of her remarriage. Cooper v. Cooper, 56 N. J. Eq. 48 (38 Atl. Rep. 198). A devise of land to a testator's widow will not be construed to be in lieu of a homestead right, given her by the statute, so as to put her to an election, unless the provisions of the will are so repugnant to the claim of homestead that the two cannot stand together. Stokes v. Pillow, 64 Ark. 1 (40 S. W. Rep. 580). Ill. Rev. Stat., ch. 41, §§ 11, 12, construed

and applied-renunciation of will by a widow and election to take one-half of the estate after debts and charges are paid, in lieu of dower. Gullet v. Farley, 164 Ill. 566 (45 N. E. Rep. 972). Construing Ind. Rev. Stat.. 1894, § 2666, which provides that the widow of a person dying testate takes under the will unless within one year after the probate of such will she makes her election to take under the law, it is held that unless the widow elects to take under the law, as required by the statute, her rights are governed by the will, and she is not estopped by the filing of an election to take under the will from afterwards making an election to take under the law, except as to innocent parties who have been induced to deal with the property relying upon the first election. Dudley v. Pigg, 149 Ind. 363 (48 N. E. Rep. 642. In Iowa it is held that a devise of a life estate to a widow does not bar her right to a distributive share of her husband's real estate, unless made with the express provision that such estate shall be in lieu of dower. Sutherland v. Sutherland, 102 Ia. 535 (71 N. W. Rep. 424; 63 Am. St. Rep. 477). In Iowa it is held that a widow by probating her husband's will, qualifying as executrix thereunder, and selling land as such, does not operate as an election on her part to take under the will and she is not required to make an election to take under the will, in lieu of her distributive share under the statute, unless there is a devise to her inconsistent with such statutory right. In re Proctor's Estate, 103 Ia. 232 (72 N.W. Rep. 516). Construing How. Ann. Mich., Stat., §§ 5750, 5751; Pub. Acts 1881, No. 18, § 1, it is held that where a husband's will gives both real and personal property to his wife, she cannot elect to take unIder the will as to one and under the statute as to the other. Crawford v. Bloss Estate, 114 Mich. 204 (72 N.W. Rep. 148).

Sec. 978. Failure of a testator to provide for a child -Statute construed. Construing and applying Cal. Civ. Code, § 1307, providing that "when any testator omits to provide in his will for any of his children or for the issue of any deceased child, unless it appears that such omission was intentional, such child or the issue of such child must have the same share in the estate of the testator as if he had died intes