
    Philips and Wife v. Melson and Others.
    Argued, Jan., 1812.
    Wills — Construction—Residuary Clause — What Passes Thereby — Reversion after Life Estate.  —In this case, a general residuary clause in a will was construed as not carrying the reversion after a life estate iu the land; there being other property which the testator evidently intended to convey by such clause; and moreover, the life estate in the land being created for the benefit of the same persons, to whom the residuum was bequeathed: it was therefore decided, that they were not entitled to the fee simple; but that it vested in the heir at law.
    Same — Same—Same—Same— Same. — See Keunon v. M’Robert and wife, 1 Wash. Ill, 112. where it was said, that a testator might devise lands for years “or for life, and limit no particular remainder; and, in that case, the reversion will pass in the residuary clause:” but the reason given is, that such appears to be the intention of the testator. A case, therefore, like this, in which the intention of the testator, collected from the whole will^taken together, appears to be different, may properly be considered as not conflicting with the principle there laid down. See Wyatt v. Saddler’s heirs, 1 Munford, 537, and Johnson and others v. Johnson’s widow and heirs, Id. 549.
    Isaac Melson, of the county of Accomack, by his last will and testament, dated the 5th day of June 1784, and recorded June 1st, 1785, devised his land to his wife “during her widowhood, to raise his four youngest children on. He gave to his son Bevin Melson, one large iron pot, his riding saddle, and a black heifer; to his wife and four youngest children, his two best feather beds and furniture; to his daughter Nancy, one safe; to his daughter Betty, one desk; and to his daughter Polly, one square walnut table. ’ ’ He desired the rest of his estate to be sold, and the money to be equally divided among his four smallest children, and concluded with appointing Charles Bagwell executor, who refusing to act, administration, with the will annexed, was granted to M’Keel Bonowell. The personal estate of the testator, in possession, at the time of his death (exclusive of the specific legacies aforesaid) was worth, according to the inventory, 421. 9s. lOd. The debts paid by the administrator, and necessary expenses of funeral and administration, amounted to 421. 15s. 10 l-2d.
    Rachel Melson, the widow of the testator, by a “bargain *with Bevin Melson, his eldest son and heir at law, on certain conditions, which she considered beneficial to herself, gave up to the said Bevin, possession of the land devised to her as aforesaid. She died, and after her death, he remained in possession of the land, and, by his last will and testament, dated the 31st day of March, 1795, and recorded June 29th, in the same year, devised it to his wife Nanny Melson, during her life or widowhood; and at her death or marriage, part to his son Noah Wyat Mel-son, and his heirs for ever, and the residue thereof to his son James Milliner, and his heirs for ever.”
    Matthias Philips, having married Nancy, the only survivor of the four youngest children of Isaac Melson, (the other three having died unmarried, and without issue,) laid claim to the whole, or a considerable part of the said land, contending that, by virtue of the clause in his will, by which he directed the “rest of his estate to be sold, and the money to be equally divided among his four- youngest children,” the remainder over, after the widow’s life estate in the land, was devised to the said youngest children.
    To try his title, he instituted an action of ejectment against Nanny Melson, the widow of Bevin Melson ; in which action a case was agreed, stating, among other things, that Betty Melson, one of the said four youngest children, died in her father’s lifetime; and that Caty Melson and Polly Melson, the other two, departed this life after having survived him; and, “that the said Isaac Melson, at the time of his death, left two daughters not mentioned in his said will, to wit, Peggy Wyatt, who is now living, and Susanna Smith, who has died, since the death of the said Isaac Melson, leaving issue, who are yet alive.”
    Judgment was entered for the defendant in ejectment; whereupon Philips and wife filed their bill in the Superior Court of Chancery for the Williamsburg district, making the lawful representatives of Isaac and ■ Bevin Melson defendants, and praying a decree for the land *itself, or part thereof; or, if the Court should be of opinion that it must be sold, under the words of the will, then for the money, or so much thereof as they were «entitled to.
    “The widow and children of Devin Mel-son answered the bill, denying the right -of the plaintiffs to any interest in the said land; insisting that, at the death of the widow of Isaac Melson, a remainder over «did not pass, by the residuary clause, to the four younger children, but the reversion vested in Devin Melson, the heir at law; there being other property, which the testator probably had in contemplation in the said residuary clause; and not the said remainder in the land. The facts contained in the case agreed at law were admitted by the counsel on both sides as evidence in this suit.
    Chancellor Tyler was of opinion, that the residuary clause in Isaac Melson’s will, «conveys no interest to the plaintiffs in the real estate; that there are no words in the will conveying an intention in the testator to defeat the heir at law; that, as the testator devised his land to his wife for life, for her benefit and that of the younger children, it is to be fairly inferred, that he had given them all the interest in his land he intended; that the implication in the residuary clause is too weak to warrant the exclusion of the heir; and that, therefore, the reversion of all the real estate of the said Isaac Melson went to his heir at law, Devin Melson, or his descendants.” It was therefore decreed and ordered, that the bill be dismissed with costs; from which decree the plaintiffs appealed.
    
      
      See monographic note on "Legacies and Devises” appended to Early v. Early, Gilm. 124. The principal case was cited in Markells v. Markells, 32 Gratt. 557; Irwin v. Zane, 15 W. Va. 653.
    
   Friday, January 24th, 1812.

JUDGE) ROANE

pronounced the opinion of this Couit, (consisting of JUDGES ROANE, •CABEDU, and COADTER,) that the decree be affirmed.  