
    Den Ex Dem. John Probasco et al. vs. John H. Creveling.
    1. A testator- devises as follows: “I give unto my daughter, E. P., the quantity of one hundi'ed and fifty acres of land on the east end of my farm, &c., to her, her heirs and assigns for ever. It is my will, when my daughter departs this life, that my executors sell and dispose of her lands, and divide the same among her children, share and share aliké.” He then devises the residue of his e'state to his two sons. Admitting that the devisee, E. P., took only an estate for life, and that her children are entitled to a beneficial interest in the remainder, the legal title to the remainder is not vested in them, nor have they such an estate therein as to enable themrto maintain an ejectment.
    3. Where a testator has not given away all his interest in land, so that if he were to die immediately, something would remain undisposed of, It is to be presumed that he intended to give the remainder in such land to the residuary devisee.
    This was an action of ejectment, brought in this court by John Probasco and others, against John H. Creveling, to try the title to a tract of land in the county of "Warren. The titles relied upon by the respective parties are sufficiently shown in the opinion of the court. The question upon which the ease turned was the construction of the will of George Warne, the grandfather of the lessors :©f the plaintiff.
    • An extract from the will, inserted in the opinion delivered, shows the grounds upon whieh the plaintiff claimed.
    The case was tried at the Warren Circuit, April term, 1855. By agreement of counsel, a verdiet was rendered for the plaintiff, and it was agreed that the question arising upon the construction of the will of George Warne, deceased, should be reserved for the decision of the Supreme Court. If, by the true construction of the will of the testator, his daughter, Elizabeth Probasco, took an estate in fee simple, then the vez’diet to be set aside, otherwise to stand.
    Argued, February term, 1856, before the Chief Justice, and Ogden, Elmer, and Haines, Justices,
    by W. Halsted, for plaintiff, and W. L. Dayton, for defendant.
    
      Halsted cited
    12 Geo. 47, Cook v. Travers ; 6 Vesey 129, Whitmore v. Trelawney ; 10 Vesey 595, Blunt v, Clitherow; Baldwin 454, Gardener v, Wagoner ; Spence's Eq. Ju. 536 ; 4 Holst. Chan. 749, Van Houten v. Pennington; 3, Ves. Jr. 320, Holmes, v. Cradock ; 2 Halst. 379, Den v. Wortendyke; Sugden on Powers 128; 1 Williams on Ex'rs 451.
    
      Dayton cited
    
      Sugden on Powers 106, 107; 2 Johns. Chap. 20 ; 1 Harr. 25 ; Spencer 248 ; Saxton's R. 141; 3 Zab 478, Den v. Youmg ; 5 Pick. 528, Hayden, v. Inhabitants of Stoughton ; 10 Pick. 462, Clapp v. Inhabitants of Stoughton; Preston on Est. 365, 366, 271-3 ; 2 Black. R. 698 ; 4 Kent's Com. 131; 1 Bac. Abr, “ Conditions."
    
   The Chief Justice

delivered the opinion of the. court.

George Warne, of the county of Warren, by lzis- last will and testament, bearing date on the 14th of September, 1789, devised the premises in question to. hjs; daughter Elizabeth, the wife of Rynear Probaseo. The testator fed in 1789. Rynear Probaseo and Elizabeth his wile, by , o.;ed, dated the 29th of June, 1795, conveyed the premises in fee to Samuel Davis, from whom the title has been transmitted, by sundry mesne conveyances, to John H. Oreveling, the defendant. Elizabeth Probaseo died in 1834, leaving five children, two of whom are the lessors of the plaintiff. They claim title to two-fifths of the premises in question, under the will of their grandfather, George Marne. The devise in the will, under which the lessors of the plaintiff claim, is as follows: I givé unto my daughter, Elizabeth Probaseo, the quantity of one hundred and fifty acres of land, on the east end of my farm, to the north side of the great road, half way up the east mountain; lying on the north side of Pohatcong, to her, her heirs and assigns for ever. It is my will, when niy daughter departs this life, that my executors sell and dispose of her lánds, and equally divide the same among her children, share and share alike. And should my daughter Elizabeth move frond said plantation, it is my will, that my executors do rent said farm, and the profits arising thérefroni td go to the support of my daughter’s children; not to sell or dispose of any kind of wood dr timber whatever on said premises.” By a subsequent clause, the testator gave and bequeathed unto his sons, Elijah and Elisha, their libirs and assigns fdr ever, all the residue and remainder of his estate, real and persdttal, ánd appointed his said sons executors of his will.

The question principally discussed upon the argument was the true construction of the devise to Elizábetlí Prbbaseo. The langtiage of the devise is appropriate to the Conveyance of an estate in fee. The gift is to the devisee, her heiis and assigns for ever. If this be the true construction of the devise, it is clear that the lessors have no title. All the interest of Elizabeth Probaseo under the will has passed to the defendant. In 1795, she executed, in connection with her husband, a deed in fee simple for the prejnises in question to Samuel Davis, from whom the defendant derives his title. I

It is insisted, by the plaintiff’s counsel, that the terms of the devise to Elizabeth Probasco are restricted and qualified by the subsequent provisions of the will, so that ,she takes not an estate in fee, but an estate for life only; and that her children are entitled to a beneficial interest in the remainder. Admitting this to be the true construction of the will, the question still remains, have the lessors of the plaintiff a legal title to the premises, such title as will sustain a recovery in ejectment. There is no devise of any estate or interest in the land to the children of Elizabeth Probasco. Upon her death, the testator wills that his executors shall sell and dispose of her lands, and divide the same equally among her children. The executors take a naked power, not coupled with an interest. 2 Powell on Dev. 233 ; 1 Sugden on Powers, 128; 1 Williams on Ex’rs 451.

That power has never been executed. There has been ,no attempt, by the executors, either to sell or divide the land among the children. This title, therefore, is not in the children of Elizabeth Probasco. It cannot, be in abeyance.

. If the devisee took but a life estate,' the remainder in ,fee must have passed by the residuary devise to Elijah and Elisha, the sons of the testator. Where the testator has not given away all his interest in the land, so that if he were to die immediately something would remain undisposed of, it is to be presumed that he intended to give the remainder in such lands to the residuaiy devisee. Doe v. Scott, 3 Maulé & Sel. 300; Doe v. Underdown, Willes 293; 'Mm/deri v. Stoughton, 5 Pick. 528.

Admitting, then, (as is" claimed on the part of the plaintiff) that ’ Elizabeth Probascó took only an estate for life in the premises in question under the will, the remainder in fee is not vested in her children. Whatever beneficial interest they may have in the land, they have not the legal title, and consequently cannot maintain an action for ejectment.

Let judgment be entered for the defendant.

Cited in Romaine v. Hendrickson's Ex'rs., 9 C. E. Gr. 287.  