
    Benjamin Parsons and Mary, his Wife, versus John Winslow.
    A devise to the testator’s wife of an annuity, “ during her widowhood and life,” was held to cease upon her second marriage, by the testator’s intention; but it was further held, that such intention being in terrorem, and against the policy of the law, as in restraint of marriage, it could not take effect, and that the wife was entitled to the annuity during her life, notwithstanding her second marriage, the same not being expressly devised over, except to the residuary legatee, who was the heir at law to the testator.
    This action was assumpsit for 2000 dollars had and received by the defendant to the use of the plaintiffs. It came before the Court on a case stated by the parties, which is substantially as follows, it being agreed that the plaintiffs should have liberty to file a new declaration: —
    
      
      John Gray, who was the former husband of Mrs. Parsons, on the 1 9th of April, 1805, made his last will, which contained, among other things, the following bequest and devises to his said wife, viz.. one third of his real estate during her natural life, she keeping the same in good repair; — also all his household furniture, except- [ * 170 ] ing his plate, *of which he gives her the use during her widowhood and life, expressing his desire that it should continue in the family ; — also his horse and chaise, and 5000 dollars in cash to her own use forever. After which comes the following provision : “ I likewise give and bequeath to General John Winslow, of said Boston, Esquire, thirty thousand dollars, in trust, nevertheless, to the sole use, benefit, and advantage of my said wife, during her widowhood and life; and if the said John Winslow die, living the said Mary, it is my will that the trust aforesaid pass to, and vest in, Jeremiah Belknap, of said Boston, if then living, his executors and administrators; but in case the said Jeremiah die, living the said John Winslow, then that the trust be in him, the said John Winslow, his executors and administrators.” The testator then gives directions as to the funding or investing the said sum of 30,000 dollars, and directs the trustees to pay over to his wife all the interest and produce of the said sum; and adds, “ The trust hereby raised and created, to cease with the widowhood of the said Mary, and to expire at her decease; and the said 30,000 dollars, in whatever form it may then be, whether in cash, stocks, or real estate, or all three of them,” he devises over to his son, whom he also makes residuary legatee of his w'hole estate, and appoints the said Winslow his executor. — The testator died May 19th, 1805, and on the 30th of the same month the said will was proved. On the 26th of July, 1808, the said Mary was married to the said Benjamin. The said Winslow accepted the trust above described, and duly paid over to the said Mary the interest and produce of the said sum of 30,000 dollars, until her said intermarriage; since which, although he retains said principal sum, he has not paid the said interest, &c., or any part of it, to the plaintiffs, or either of them. The estate of the testator amounted, at his decease, to 215,007 dollars and 41 cents, of which the real estate was 53,000 dollars. The household furniture was appraised at 3583 dollars 25 [ * 171 ] cents; and the annual * income of the third part of the real estate given to the wife is from 400 to 500 dollars.
    If, upon this statement, it should be the opinion of the Court, that the plaintiffs, in right of said Mary, are by law entitled to receive the interest of the said sum of 30,000 dollars since their intermarriage, the defendant agreed to be defaulted, and that judgment should be entered for the sum of 750 dollars, being the amount due at the commencement of the suit; otherwise the plaintiff agreed to become nonsuit.
    The cause was argued at the last March term, and again at this term, by Dexter and Prescott for the plaintiffs, and Whitman for the defendant.
    
      Whitman. The parties to this suit have no adverse feelings, The defendant, being executor to J. Gray’s will, as well as trustee of the particular fund in question, having doubts of the legality of the claim made by the plaintiffs in this action, has thought it his duty to resist it, and to obtain a decision of this Court upon the subject.
    A principal rule, in giving a construction to wills, is, that the heir at law is to be favored. If, then, there is a doubtful or irreconcilable mode of expression in the clause of the will, under which the plaintiffs claim, the son and heir, who alone is opposed in interest to that claim, must prevail against the wife, who is the devisee. 
    
    The defendant objects to the plaintiffs’ recovery in this action, 1. Because the estate he possesses, out of which the annuity is demanded, being a trust estate, this Court has no jurisdiction in the case,  and if they had, an action at common law does not lie to compel the execution of a trust. In the case referred to, of Prescott and Tarbell, the chief justice, in delivering the opinion of the court, has this expression: “ If this conveyance was in trust, this court could not have compelled the execution of it; and until the legislature shall think proper to give us further powers, we can do nothing upon subjects of that nature.”
    
    * But, 2. Upon the only construction that can be [*172J given to the devise in question, it means no more than,
    
      “ I give to my wife this annuity for her life, but if she shall marry again, then I give it over,” &c. The annuity was to cease with her widowhood.
    A will must be so construed as to make use of all the words, and not of part, and so as they may stand together, and have no contrariety in them; and the clauses and sentences of a will shall be severally transposed, to serve the meaning of it. 
    
    
      For the. plaintiffs, it was contended that the necessary construction of the devise was a gift of annuity during the life of the widow. On another construction, many of the words would be wholly inoperative, which is against the common rules of construction, which require a meaning to be given to every word. If the word life is rejected, a construction the most adverse to the legatee :"s given. The provision for the appointment of a second trustee, in case of J. Winslow's death, living the wife, is a very strong implication that the benefit was intended to continue during the life of the annuitant.
    The devise over to the son, if not void, as will be shown presently, is limited to the decease of his mother. After having declared that the trust was to cease with her widowhood, and to expire at her decease, he adds, “ And the said 30,000 dollars, in whatever form it may then be, &c., I give to my son.” The word then, by the soundest and best construction, must relate to the last event mentioned, viz., her decease.
    The intent of the testator being to be collected from the whole will, it is worthy of notice, in this view, that he expresses the utmost affection for his wife, and a very great confidence in her. He calls her his “ dearly beloved wife Mary; ” he directs a guardian to be appointed for his only son, “ by and with the advice and consent of his mother; ” and he orders that such guardian shall “ with the advice and assistance of the said Mary, direct and superintend the education " of his son.
    [ * 173 ] * Whether the law will favor the heir or devisee, Mrs. Parsons has claims to such favor. For to the amount of this annuity she would be entitled under the statute of distributions, were there no will, which makes her quasi heir for the purpose of this argument; and as she claims under the will, she is devisee.
    It is a known principle of the common law that limitations in restraint of marriage are not to be favored, and only in case of an express and immediate devise over, are they ever regarded, being holden to be void as merely in terrorem. The doctrine that a devise over supports the limitation, is not so much a rule, as it is an example or instance wherein the general doctrine is controlled. The devise over, to have this effect, must appear to be the principal object of the testator; therefore a devise over to the residuary legatee, or to the heir at law, who would be entitled without the devise over, will not support the limitation. But it is apparent from all the circumstances of this case, that the principal object with the testator was much more to prevent his widow’s marrying than to benefit his son, to whom the devise over is limited, or his niece, to whom it passes in case of the death of the son under age. 
    
    The opinion of the Court was afterwards delivered by
    
      
      
        Gilb. on Devises, 76.
    
    
      
      
        Prescott vs. Tarbell, 1 Mass. Rep. 208
    
    
      
      
        Bac. Abr. Wills, F. — Luzford vs. Cheeke, 3 Lev. 125.
    
    
      
      
        Long vs. Dennis, 4 Burr. 2052. — Doe vs. Freeman & Ux., I D. & E. 389. — Wheeler & Ux. vs. Bingham, 1 Wils. 135. — Paget vs. Heywood, 1 Atk. 378, cited also in Wheeler & Ux. vs. Bingham, 3 Atk. 364. — Hervey vs. Ashton, Ca. Temp. Talbot 212. — Fleming vs. Walgrave, 1 Ch. Ca. 58. — 1 Fonblangue, 260, in notis.
      
    
   Sedgwick, J.

The first question that presents itself is, What was the intention of the testator, as to the annuity, which he gave, by his will, to his wife ? was it to continue for her life ? or, if she should marry, only during her widowhood ? If that intention can be discovered, it must be carried into effect, if it can be done consistently with the rules of law.

In investigating the meaning of the testator, every part of the will, in relation to the subject of inquiry, must be taken into consideration.

The bequest is made in the following words: “ Likewise I give and bequeath to General John Winslow, of said Boston, Esq., thirty thousand dollars, in trust, nevertheless, to the sole use, benefit, and behoof of my said wife, * during her widow- [ * 174 ] hood and, life; and if the said John Winslow shall die, living the said Mary, it is my will that the trust aforesaid shall pass to and vest in Jeremiah Belknap, of said Boston, if then living, his executors and administrators ; but in case the said Jeremiah die, living the said John Winslow, then that the said trust be in him, the said John Winslow, his executors and administrators.” It then declares that the principal sum shall be so invested as, in the opinion of the trustees, to promise the greatest benefit and advantage to her for whose use the trust is created; and it then directs the proceeds of the fund to be paid to her.

The words of a testator, favorable to the claims of a legatee, are to be liberally and beneficially construed; and the bounty ought to be extended as far, at least, as the express words of the bequest necessarily carry it; and it is an additional consideration for such a construction in this case, that the bequest was in favor of a wife, who enjoyed the affection and confidence of the testator. When, then, the bequest is declared to be for her benefit during her taidowhood and life, was there nothing more, however difficult it might be to conjecture a reason for mentioning her widowhood at all, it might be reasonable to believe, that it was the intention, that it should continue to the utmost extent, to which the testator had declared that it should — during her natural life. This construction might also derive strength from a consideration of the provision, which is made for a successor to General Winslow, in the trust, if he should die during the life of the wife ; and further support might perhaps be given to such a construction, from the direction in an after-part of the will, to the guardian of the testator’s son, to pay particular attention to all the real estate devised to him, and which might, by the death of his mother, come into his possession. For although the dower of his mother would by her death come into his possession, yet as the capital of the bequest under consideration might be vested in real * estate, that also [*175 | might be in the mind of the testator, and it might be contemplated by him, as not coming into his possession until after her death ; and thence it might be inferred, that it was intended to be appropriated to her use during her life.

But taking the whole will together, I do think that it was the manifest intention of the testator, that the annuity should cease with the widowhood of Mrs. Gray.

In the first place, it is a rule of construction, that if it can bo done, all the words of an instrument shall be supposed to have a meaning, and that none were used insignificantly. Now, if the intention of the testator was, that the annuity should, at all events continue during life, every thing that is said relative to the widow hood of the annuitant is without any meaning. It would, then, from this just rule of construction, seem probable, by the expressions first used, designating the continuance of the annuity, that the intention was to make a provision, to continue during widowhood; whether it should terminate by marriage or by death. It was to be for her benefit during her widowhood and life. But, when, proceeding further on, we observe that she was to receive that bounty through the medium of a trust, and that the bounty and trust are to be commensurate in duration, (which is certainly the case,) if by the words, in which the annuity is given, there is doubt, whether it was intended that the annuity should continue at all events during life, or should cease, in the event of the annuitant’s marriage, with her widowhood; and if it is certain, that by the words descriptive of the duration of the trust, that the trust is expressly to cease with the widowhood, what before was doubtful will be rendered evident, — that the annuity was also to cease with the widowhood.

The intention of the testator, as to the duration of the trust, is expressed in these words: “ The trust hereby raised and created, to cease with the widowhood of the said Mary, and to [* 176 ] expire at her death.” When, then, the * annuity is dependent on the trust, and the former cannot continue any longer than the latter, and when the testator has expressly declared his intention that the trust shall “ cease with the widowhood of the said Mary,” it follows, to my mind, as an irresistible consequence, that with her widowhood the annuity also should expire.

It is said that by the word then, used in the paragraph immediately succeeding that which has been last mentioned, it is apparent that the annuity was in any event to continue during the life of Mrs. Parsons. The words alluded to are, “And the said thirty thousand dollars, in whatever form it may then be, whether in cash, stocks, real estate, or all three of them, I do hereby give and bequeath to my son herein named.” It is said that the word then refers only to the last event above mentioned, that is, the decease of the annuitant, and shows that, although the testator had said that the trust was to cease with her widowhood, and expire at her death, it truly meant, that it should continue during life.

I know no rule that will justify or authorize the construction contended for; but I think that the word then must be understood to refer to whichever event should first happen. If one promises another, that if he will pay him one hundred dollars, or deliver him one hundred bushels of wheat, he will then deliver to him his horse, the word then refers to either part of the alternative.

It seems to me, from other parts of the will, that the testator had constantly in his mind a distinction between the widowhood and the life of his wife; and that he well knew how to express, in proper language, an estate for life, when such was his intention. He gives an estate to Anthony Gray, “ during his natural life ; ” and another to Bethiah Paine, “ for and during the term of her natural life.” And not only in the distribution of his bounty among others, but where it was intended for the life of his wife, it is so expressed, The first devise in the will is in these words: “ I give, and bequeath, and devise, to my beloved wife Mary, [* 177 J one third part of all my real estate, for and during her natural life, she keeping and maintaining the same in good repair.” Thus, when it is so intended, a life estate is created by clear and unambiguous language; but when a different intention is enter tained, different language is employed; and the use of language so different is, to my mind, pretty strong evidence of a different intention. The next provision in the will to that last recited is in these words: “ I also give and bequeath to my said wife all the household furniture which I may own at my decease, saving and excepting that part which is made up of plate; it being my desire that that should continue in the family, I give and bequeath to my said wife the use of the said plate during widowhood and life.” The manifest intention here was, that the legatee should have the plate during life, if she did not marry, but that, if she should marry, the plate should not be carried out of the family. In other words, it was a gift for life, if she did not marry, and during widowhood, if she did ; and this intention is expressed, in substance, in the same manner as the béquest under consideration. And why should not the same construction be given to the latter as is manifestly proper for the former ?

That the event of his wife’s future marriage was all along in the mind of the testator, is further apparent from another part of the will, by which it is provided, that she should have his dwelling-house, free of rent, during the minority of his son, if she should so long remain unmarried

It was said in the argument, that, upon this construction, the word life is used without any meaning. But that is not true; although it is true that it expresses only what would otherwise be implied. And it will be sufficient to notice, in answer to this observation, that there is nothing more common, both in speaking and in writing, than to express what the mind clearly perceives to be implied. She would, by the gift during widowhood, if she did not [ * 178 ] marry, enjoy during * life; and this being the intention, it was natural to express it.

On the whole, I think it impossible not to conclude, that it was the intention of the testator, that this provision for his wife should cease with her widowhood.

There is another question, — whether this intention, under this will, can be carried into effect, consistently with the rules of law.

The real intention of the bequest was for the life of the wife, on condition of being void in the event of her marrying. Had this been a condition precedent, it would have defeated the gift.

But when the condition is subsequent, as this is, and the legacy is not given over, it is considered merely in terrorem, and the condition is void, because it puts a restraint upon matrimony, which ought not to be discouraged. But if the legacy be given over, the limitation may take effect.

The only question, then, which remains to be considered, is, whether <his legacy is given over in such manner as to give efficacy to the intention, that it should cease with the marriage of the wife.

Immediately after the words in the will, expressive of the duration of the annuity, it goes on in these words : And the said thirty thousand dollars, in whatever form it may then be, whether in cash, stocks, or real estate, or all three of them, I do hereby give to my son herein named.” Is this such a giving over of the legacy as will give effect to the expressions in the will limiting its duration ?

It is a rule of law, that to give a thing to the person to whom the law gives it, and in the same manner, is as if it had not been given; so that a devise or bequest to a person to whom the law would give the same thing in the same manner, is utterly void.

Now, as the son here mentioned is the sole heir, as to the real estate, and the sole representative, as to the personal estate, | * 179 ] of the testator, the giving over to him made * no alteration in the disposition of the estate from what the law would have done, and consequently does not bring the case within the rule by which efficacy is to be given to the expressions in the will, limiting the duration of the legacy in the event of mar riage. But this opinion goes upon the hypothesis, that the son would take by the will the estate, in the same manner that he would have taken it by law. Now, the testator contemplated that the capital sum might, at the time when he intended it should cease to be a provision for his wife, be invested, or a part of it, at least, in real estate; and there are no words by which an estate of inheritance is given ; and in every other part of the will, where a fee, or a less estate, is intended, it is expressed. If it was intended that the son should take only an estate for life, in such real estate as might be purchased in fee with the thirty thousand dollars, or part of it, then it was meant to make a disposition different from what the law would have done, and, of consequence, the rule above mentioned, whereby legacies and devises are made to terminate in the event of marriage, will apply.

But I am satisfied that it was the intention of the testator to give the whole fund, in whatever it might be invested, and as it should happen to he invested, to the son; and, if so, the declared intention of passing it over is wholly inoperative and void. It is like that devise in the will, by which the testator gives all his real estate to his son, his heirs and assigns forever. I think he intends to give the whole fund, however it might be invested; because he shows a manifest intention to dispose of all his estate; and there is no supposable motive why he should leave a remainder in this undisposed of.

There is another clause in the will, in which the testator declares his intention in these words: “ And in case my said son should die before he attains the age of twenty-one years, and without issue, male or female, then I give, devise, and bequeath, to Jane Paine and her heirs forever, all the estate, real, personal, and mixed, here by given, devised, and bequeathed, to my said son.”

* It only remains to be determined, whether this is [ * 180 ] such a giving over as will by law give effect to the limitation under consideration. And I think it is not. It is an estab lished rule, that a bequest over, to give effect to such a limitation, must be an express bequest of the particular legacy, and that a bare gift of the residuum will not be sufficient. This has frequently been decided ; but I will mention only two cases. In the* case of Garratt vs. Pretty, Pretty, by his will, gave 30007. to his daughter, the plaintiff’s wife, at twenty-one years or marriage; provided, if she married without the consent of his friend Mr. S., her legacy was to cease, and she to have 500?. only, and made his son, the defendant, executor and residuary legatee. The daughter married without the consent of Mr. .S'.; yet the whole 3000?. were decreed, because it was not expressly devised over, but fell into the surplus. And there was the same determination in the case of Wheeler vs. Bingham, and for the same reason.

In the case at bar, the legacy, first given to the wife, was not specifically and expressly bequeathed over to Jane Paine, but was bequeathed over in the same devise and bequest, and by the same words, as the other property, real, personal, and mixed, which before had been devised and bequeathed to the son. This reasoning may perhaps be deemed merely artificial; but it is founded in authority, and is the known law ; and I am not sorry that the rule has been established, because it is a liberal check upon dispositions, where they exist, to make testamentary provisions in restraint of matrimony.

There is another well-established principle, by which the bequest over to Jane Paine is prevented from giving efficacy to the limitation under consideration. The principle is, that the bequest over, to give it the effect now under consideration, must be immediate, so as to take effect at the time of the marriage, The estate, by this will, is to go to Jane Paine only in the event of the death of the son before twenty-one years of age, without issue [ * 181 ] and * unmarried. The bequest to her, therefore, is not immediate. In the case of Doe vs. Freeman & Ux., this principle is recognized and established. In that case, William Warraker devised the premises to his wife for life; but in case she married a second husband, then he gave them over to his nephew, John Surry, when he should attain his full age of twenty-three years, on condition of paying certain legacies, within a limited time after he should have got the possession. It will be perceived how much this case resembles the one before the Court. In the case cited, after stating the settled principle, that limitations in restraint of marriage are not to be favored, it is said by the court, that, wherever an estate is given to a widow for life, provided she shall not marry, unless there be a devise over immediately, it is merely in terrorem.” The bequest over to Jane Paine cannot, then, operate to give efficacy to the intended limitation, as well because it is not immediate, as because it is not an express bequest of the particular legacy.

As an original question, perhaps it would have been more consonant with reason, to have determined, in the first instance, that no bequest over should be sufficient to divest a widow of property given to her for life, on condition of her not marrying. But it is not necessary, for the decision of the case before us, to examine that principle, nor whether it is law here. It is sufficient now to determine that it is not applicable to this bequest.

The principles established upon this subject by the English authorities, to which our opinion in this case conforms, are plain and intelligible. It is a general rule, that a condition annexed to a devise or bequest for life, whereby it is to be divested by the marriage of the devisee or legatee, is to be considered as intended merely in terrorem, and it is therefore void. To this rule there is an exception, that such condition shall be effectual, if the subject of the devise or bequest be given over, so as to create an interest in another person. And, again, this * exception [*182] is restrained and limited. To give it effect, the giving over to a third person must be an express giving over of the particular devise or legacy, unincorporated with any other subject; and it must also be immediate, to take effect at the time of the marriage. Neither of these circumstances attends the bequest under consideration. It is not an express bequest of the particular legacy, nor was it to have an immediate effect.

Judgment for the plaintiffs.

Note. The chief justice, being related by affinity to one of the parties, did not sit in the cause. After Sedgwick, J., had delivered the opinion of the Court, he observed that his brother Sewall, who was not then in Court, did not concur in that opinion. 
      
       4 Burr. 2055, Long vs. Dennis.
      
     
      
       4 Burr. 2052 — Com. Rep. 726. — 2 Ves. 293. — Ca. Ch. 22. - -1 Ch. Rep. 121 Skin. 286.
     
      
      
         Styles, 148. — Bac. Abr. Tit. Wills, F.
      
     
      
       1 Wils 138, Wheeler vs. Bingham
      
     
      
      
        2 Ves. 293.
     
      
      
        Wils., ubi supra.
      
     
      
      
        1 D.& E. 389.
     
      
       [Unqualified restrictions on marriage are clearly void on grounds of public policy. —Perrin & Al. vs. Geddes, 9 East. 170. — 2 Rob. Wills, 335, note 7. — 2 Powell by Jarman, 290, 291. — Ed.]
     