
    Luther Claflin versus James Perry.
    A devise was “ to my beloved daughter, E., wife of my son, A. S., and to her children, born or to be born; that is to say, to the said E., the sole use and improvement of one third part of the same, so long as she shall live after the decease of my said son, A. S., if it should ever please God to order her to be left his widow; and the other two thirds to be equally divided between my said grandchildren, their heirs, dye., as well the reversion of the third part as the other part without reserve.”
    
    It was holden, that the said grandchildren took, immediately on the death of the testator, a base or qualified fee in the third part, determinable on the event of the mother surviving the father. Upon her dying before her husband, the base fee becomes absolute. If she survive him, she takes a life estate, with remainder to her children ; it appearing that the testator intended to dispose of his whole estate, and also intended that his son, A. S., should have none of it.
    This was an action of assumpsit, and was submitted to the determination of the Court upon the following facts agreed by the parties.
    [*426] * Samuel L. Scammell died testate, leaving two sons, John and Alexander, his only heirs at law. In the last will and testament of the said deceased, which has been duly proved in the county of Norfolk, was a devise in the following words, namely : — “ I give and bequeath unto my beloved daughter, E¡de Scammell, wife of my son, Alexander S., and to her heirs, namely, Samuel S., Daniel S., Lisle S., children of my beloved son, Alexander, and the said 
      Ede, as also all the children which may be born of her the said Ede, while the lawful wife of my said son, Alexander S., all and singular my old homestead farm that 1 own in Milford, whereon my said son, Alexander, now lives, with all the woodland and meadow land thereto belonging, which he, the said Alexander, doth now improve, in manner following; that is to say, to the said Ede, the sole use and improvement of one third part of the same, so long as she shall live after the decease of my son, Alexander, if it should ever please God to order her to be left his widow ; and the other two thirds of said lands and buildings to be equally divided between my said grandchildren now born, and those that may hereafter be born to them, the said Alexander end Ede S., their heirs, and assigns ; as well the reversion of the third part, as the other part without reserve ; it being in full of what I heretofore intended to have given to my son, Alexander, as his share.”
    The said Alexander and Ede are now living. The defendant has been appointed guardian to their said children, and, in virtue of his said appointment, has entered into possession of the said premises so devised as aforesaid, taking the profits thereof for the benefit of his said wards.
    The plaintiff, having recovered a judgment against the said Alexander, for the sum of $ 347.65, levied his execution, which issued upon the said judgment, upon one moiety of the rents and profits of the lands and buildings aforesaid, for a term of years ; and this action is brought to recover of the defendant the said moiety of the rents and profits aforesaid. And if, in the opinion of the Court, the * said rents and profits could be lawfully so taken to [*427 ] satisfy the said execution, the defendant agreed that judgment should be rendered against him upon default, for the sum of -; otherwise, the plaintiff agreed to become nonsuit.
    The cause was argued at the last September term in this county, by Hastings and Bigelow, for the plaintiff, and by the Solicitor-General, for the defendant.
    And, being continued for advisement, the Court in the interim agreed in an opinion, which was now read by Jackson, J., as prepared by
   Putnam, J.

In this case, the claims the rents and of one half of certain real estate, in virtue of a levy of his execution upon the same, as the estate of one Alexander Scammell.

The defendant resists the claim, upon the ground that the said A. S. had no estate in the premises ; and, if he had, that the proceedings upon the execution have not been such as to entitle the plaintiff to this action.

The plaintiff contends, that A. S. had a freehold estate in the premises, for and during the life of Ede, his wife, in virtue of the following clause in the last will and testament of Samuel L. Seim mell, father of the said A. S. [Here his Honor recited the aforesaid clause, and proceeded.]

We are therefore to determine, whether the said Ede has any estate whatsoever in the premises, during the life-time of her husband. For, if she took a life estate presently, we do not perceive but that the consequence, which the plaintiff has drawn, follows ; that her husband has it for her life.

We are, however, satisfied, that the will does not admit of this construction. The testator devises to Ede the sole use and improvement of one third part of the farm, &c., so long as she shall live after the decease of his son, if it should please God to order her to be left his widow. Unless she should be left a widow, it is our opinion that nothing is given to her. It is an executory devise to her for life, depending upon the contingency of her surviving her husband.

But, then, it was contended, that, in the mean time, that is, during the life of her husband, the estate descended to the [*428] * testator’s heirs at law ; because it could not take effect as a remainder, for want of a particular estate on which it could depend ; and so A. S. during his own life would be entitled to a moiety of the estate in his own right, as one of the children and heirs of his father.

, This construction, however, would be manifestly contrary to the intent of the testator. For it appears, on examining the will, a copy of which has been furnished to the Court, that he made it, “ as touching such worldly estate as it had pleased God to bless him with in this life.” We cannot suppose, therefore, that he intended to die intestate as to any part of it. This construction would also be against the plain intention of the devisor, inasmuch as he says that the estate he had given to his daughter-in-law and her children was what he theretofore intended to have given to his son, Alexander, thereby leaving a necessary implication that Alexander was not to have any thing in that estate. We think, that, for some reason which does not appear in the will, but which was satisfactory to the testator, he intended to exclude his son from this estate, and to substitute his son’s wife and their children, as the objects of his bounty, m respect to the same, and that, by the rules of law, this intention may be carried into effect.

The devise is to his beloved daughter, Ede S., wife of his son, A. S., and to their children, and his grandchildren, then born, or to be born, and their heirs and assigns. They have the whole estate. But, as the executory devise to Ede gives her no right during the life of her husband, and as the testator did not die intestate as to this estate during the life of her husband, the said A. S., it is necessary to determine who has the estate during that period. And we are of opinion that the children of A. S., the grandchildren of the testator, in the first place, take a base or qualified fee simple in this estate in virtue of this devise, determinable upon the event of their mother’s surviving their father. But, if their mother should die before their father, then their qualified fee becomes absolute. If the mother should survive, then * the life estate to her [*429] commences ; and the remainder, expectant upon her decease, immediately vests in her said children, the grandchildren of the devisor.

Upon this view of the case, it is not necessary to determine whether the proceedings relating to the levy of the execution were good ; because we are of opinion that the judgment debtor had ño interest in the estate.

According to the agreement of the parties, the plaintiff must be called.

Plaintiff nonsuit. 
      
       Quære, whether it would not be more rational to suppose that the testator, in this informal will, intended to give one third of the premises to his son’s wife, for her natural life, to be used and improved by her husband and herself during his life, and by her solely after his death ? If not, why did he expressly devise the reversion of the one third, as well as the other two thirds, to the children in such a manner as to exclude the idea that he intended they should have any thing in the one third part but the reversion. Besides, no reasonable motive can be assigned for an intention to exclude his son’s wife from all benefit in the premises during her husband’s life, which might prevent her ever having an estate or interest therein, or benefit therefrom, when in the first part of the will he expressly gives them to her and her heirs.
     