
    [Philadelphia,
    April 18th, 1836.]
    MOORE and Another v. HUMPTON.
    IN ERROR.
    A testator gave to his wife all his estate real and personal, that should remain after payment of his debts, &e., adding, “but if it shall be the opinion of my executors, that my said estate is more than sufficient for the comfortable support of my said beloved wife during her life, then I direct them to pay to L. the sum of £100, when the settlement of my affairs shall admit of its being done without inconvenience to my aforesaid wife, &c. And I further direct them to pay or transmitió my nephew R. H. L., one half of the remainder of the said property, if any there should be, that my said wife may die possessed of; and the other half I leave to her disposal.” The widow of the testator afterwards made her will, which, besides various legacies, contained the following: “ Item —I devise and direct that one half part of all my estate (after payment of my just debts and funeral expenses,) be paid to the heirs or legal representatives of R. H. L., agreeably to the will and intention of my late husband, excepting thereout my household furniture, which I dispose of as hereinafter mentioned.” Held, that R. H. L. was entitled to one half part of the remainder of the testator’s estate, and not to the half part of the estate of the widow.
    Upon a writ of Error to the District Court, for the City and County of Philadelphia, it appeared, that an amicable action was entered to December Term, 1834, of that Court, by Lewis Edwards Humpton against John Wilson Moore and Caleb Peirce, executors of the last Will and Testament of Elizabeth Humpton, deceased; and the following case was stated for the opinion of the Court:
    “ Richard Humpton, being seised and possessed of certain real and personal estate, died on or about the 20th day of January, a. d. 1805, having made his last will and testament dated the 10th of June, a. d. 1804, which was duly proved on the 29th of January, a. d. 1805, and letters testamentary thereon granted to Elizabeth Humpton and John D. Steele, executrix and one of the executors named in said last Will. The following is a copy of the said Will:
    “I, Richard Humpton, of the Township of West Bradford in the County of Chester and State of Pennsylvania, being infirm in body, but of sound understanding and memory, do make this my last Will and Testament, hereby revoking and disannulling all former Wills and Testaments, as follows, namely:
    Item 1. I do hereby will and direct that my executors hereinafter named, shall as soon after my decease as conveniently may be, cause an impartial appraisement to be made, and inventory taken and recorded in the office at West Chester of all my personal estate, and that they shall have fall power to dispose of all or any part of my real estate for the purpose of discharging my just debts and funeral expenses and fulfilling the intention of my will as hereafter expressed.
    Item 2. I do hereby will and bequeath to my beloved wife Elizabeth Humpton, all my estate real and. personal that shall remain after my just debts and funeral, expenses shall have been paid as before mentioned ; but if it shall be the opinion of my said executors that my said estate real and personal, is more than sufficient for the comfortable support of my said beloved wife during her life, then I direct them to pay to Lewis Edwards Humpton, the sum of one hundred pounds, when the settlement of my affairs shall admit of its being done without inconvenience to my aforesaid wife: and if at the decease of my aforesaid wife, the said legacy to Lewis Edwards Humpton shall remain unpaid, I direct my surviving executors or executor to pay to him if she dies possessed of property sufficient for that purpose. And I further direct them to fay or transmit to my nephew Richard Humpton Lister of the North Riding of Yorkshire in the Kingdom-of England, one half of the remainder of the said property, if any there should he that my said wife may diepossessed of; and the other half 1 leave to her disposal.
    
    Item 3. I do hereby nominate and appoint my.beloved wife aforesaid executrix, and my esteemed friends Francis Bailey of Lancaster County, and John H. Steele of Montgomery CoUnty, executors of this my last Will and Testament, to whom I transfer full power to apt in the premises and make good and sufficient deed or deeds of conveyance of all or any part of my estate, as the circumstances thereof shall by them be deemed necessary.”
    An inventory and appraisement of all the persona] estate of which the said testator was possessed at the time of his decease, was taken and made a short time afterwards and filed in the office of the Register for the probate of Wills and granting Letters of administration for the County of Chester, agreeably to directions contained in said last Will, amounting'to $7046 62, prout said Inventory and appraisement.
    The testator was seised at the time of his death of certain real estate: 1, A lot of woodland in East Fallowfield Township, Chester County; 2, A tract of woodland in West Bradford Township in the same County; 3, A tract of land situate in Oxford Township; 4, A tract of woodland situate in said Bradford Township. This real estate was afterwards sold by the executors, in pursuance of the powers contained in said Will, and produced the following ' sums, viz.: No. 1, One hundred and twenty dollars; No. 2, One thousand six hundred and eighty-eight dollars; No. 3, One thousand dollars; No. 4, One thousand and sixty-six dollars sixty-six cents.
    The accounts of the executors of said will were filed by John D. Steele, as acting executor, on the 3d of October, 1808, in the Office of the Register of Wills, &c. for Chester county, as aforesaid, and having been duly transmitted to the Orphans’ court, were afterwards confirmed by said court, as by a copy therein duly certified and hereto annexed appears; which, with all the matter therein contained, is made part of this case.
    Elizabeth Humpton having received the several sums of money charged to her in said account, and the amount due on the several bonds therein mentioned as deposited with her, except those of Henry Benner and John D. Steele, having been paid to her, made her last will and testament, dated the 20th of the Seventh month, (July,) a. d. 1821, and having died about the day oí a. d. 1828, the said will was duly proved on.the 9th of October, 1828, and letters testamentary thereon granted to Caleb Peirce and J. Wilson Moore, the above named defendants. The following is a copy of her said last will.
    “ Be it remembered that I, Elizabeth Humpton, of the city of Philadelphia, (widow of Richard Humpton, deceased) being of sound ■and well disposing mind, memory and understanding, do make and publish this my last Will and Testament in manner following, that ■is to say,
    First, I will and devise that all my just debts and funeral expenses be duly paid and satisfied.
    
      Item — I devise and direct that one half part of all my estate (after payment of my just debts and funeral expenses) be paid by my executors to the heirs or legal representatives of Richard Humpton Lister, late of Yorkshire, in England, deceased, agreeably to the last (Pill and intention of my late husband, excepting thereout my household furniture, which 1 dispose of as hereinafter mentioned.
    
    Item — I give and bequeath to my esteeemed friend John Wilson Moore, of the city of Philadelphia, physician, the sum of one thousand -dollars, also my small desk.
    Item — I give and bequeath to Lewis Edward'Humpton, of Chester county, Pennsylvania, the sum of two hundred and fifty dollars, including the fifty dollars with interest, lent him in the year 181°.
    Item — I give and bequeath to my friend Lydia Jones, (wife of John M. Jones, of the city of Philadelphia) the note I hold of hers for one hundred and fifty dollars, more or less.
    Item — I give and bequeath to Henry Benner of the same city, the ■sum of one hundred dollars, and also the note I hold of his.
    Item — I direct my executors, in case there shall be a sufficiency ®f funds, to invest in the best manner they are capable, the sum of four hundred dollars, or in sums to that amount, which I bequeath and direct to be paid to the four next hereinafter mentioned legatees, as they severally come to lawful age, to wit, to Richard Humpton (son of the said Lewis E. Humpton) one hundred dollars; to Elizabeth M. Humpton, (daughter of the said Lewis) one hundred dollars, and I moreover give her half a dozen of my silver spoons — To Ephraim Humpton, (son of the said Lewis) one hundred dollars — To Elizabeth Humpton Mears, (daughter of Benjamin Mears, of the city of Philadelphia) one hundred dollars; I also give’her half a dozen of my silver tea spoons — each of the said sums to be paid, with its proportional part of the interest which shall have accrued thereon.
    Item — All the residue of my household and kitchen furniture, of every description, I give and bequeath to the said Elizabeth M. Humpton.
    Item — I give and bequeath all my wearing apparel, to be equally divided between Mary Humpton (wife of said Lewis) and their daughters, the said Elizabeth and Mary.
    Item: — If, after paying all the aforesaid legacies, there shall still remain a sufficiency, then I further will and direct, as hereinafter mentioned, that is to say, I direct my executors to procure or have made a neat, plain silver tankard, of the value of fifty dollars, which I give and bequeath to my beloved friend, Mary Cuthbert — I give and bequeath to the contributors to the Pennsylvania Hospital, to be added to the capital stock, the sum of fifty dollars — I give to my executors fifty dollars, in trust, to pay the same to the treasurer of Philadelphia Monthly Meeting, for the use of the poor — All the rest and residue of my estate, whatsoever and wheresoever, I give and bequeath the same to my friend, John D. Steele, of Chester county, Pennsylyania, and the said Lydia Jones, (wife of John M. Jones,) to be equally divided between them, part and share alike.
    And lastly, I nominate and appoint my friends, the said John Wilson Moore and Caleb Peirce, of the city of Philadelphia, executors of this my last will and testament, and I do hereby revoke all wills by me heretofore made.
    , In witness whereof, I have hereunto set my hand and seal, this twentieth day of the seventh month, (July,) a. d. 1821.”
    At time of her decease, the said Elizabeth Humpton, the testatrix, had in her possession the bond and mortgage for £15, and the note for £12,12s., given by Henry Benner, and also the bonds and mortgage given by John D. Steele for £.1000, which are mentioned-in the said accounts of the executors of said Richard Humpton to have beend ejjosited with her, and also the principal part of the household furniture, mentioned in the same account and for which an allowance is craved for “ deficiency in sales, occasioned by the reservation made by the relict of the deceased, of plate, furniture, linen and horse, &c., for her own use.,” being the same furniture which is bequeathed by her in her will. The whole fund which her executors have, has been derived from the following sources, viz:
    A bond and mortgage of Mary, Margaret, and Elizabeth Lisle, given to said Elizabeth Humpton, and dated September 28th, 1827, for - ' $2000 00
    A bond of William Coates to said Elizabeth, dated May 17, 1814, for 364 00
    On account and in part of JohnD. Steele’s bond and mortgage, deposited with said Elizabeth as aforesaid, 855 45
    The funds now in the hands of the defendants consist of the following investments:
    1. Bond and mortgage, 2300 00
    2. Chesapeake and Delaware Canal loan, $392 65, worth 251 29
    3. 15 Shares Commercial Bank stock, 992 48
    From which are to be deducted the executors’ commissions and certain incidental expenses; amount tobe ascertained by attorneys.
    Richard Humpton Lister died between the time of the deaths of Richard Humpton, and his widow, Elizabeth Humpton.
    1. Did Elizabeth Humpton, under her husband’s will, take an absolute estate in all the property, real and personal, of which her husband died seised and possessed ? or
    2. Did she take but a life estate in the said property, with a power merely to dispose of so much thereof as might be necessary for her comfortable support during life, and also a power to dispose absolutely of one half which might remain at her death ?
    3. In case the court should be of opinion in the affirmative of the second question, vvhat proportion, if any, did the heirs or legal representatives of Richard Humpton Lister take under the will of Elizabeth Iium'pton, of the funds admitted to be in the hands pf her executors 1
    
    If the court should be of opinion in the affirmative on the first question, then judgment is to be rendered for the plaintiff for the principal sum bequeathed by said Elizabeth Humpton to the plaintiff, with half interest thereon from one year after the said Elizabeth’s death — If the court should be of a different opinion on said first question, then the judgment to be entered for the plaintiff or defendants as its opinion upon the other questions shall affect the assets in the hands of the defendants. Either party to be entitled to a writ of error.”
    On the 14th of March, 1835, the District Court “ being of opinion -on the case stated, in the negative of the first question, and in the affirmative of the second, and on the third question that Richard [ Humpton Lister’s heirs or legal representatives took nothing under J the will of Elizabeth Humpton, she intending merely to confirm her I husband's will, ordered that judgment be rendered for the plaintiff in { the sum off169 82.” • ]
    The defendants took a writ of error to this judgment.
    Mr. J. P. JVorris, for the plaintiffs in error,
    cited Upwell v. Halsey, (1 Peers Wms. .621.) Smith v. Bell, (6 Peters’ Rep. 68.)
    Mr. W. M. Meredith, for the defendant in error,
    cited Morris v. Phaler, (1 Watts, 32.)
   Per Curiam-

Let the absolute interest of Elizabeth Humpton have been wliat it may, she certainly undertook to dispose of no more than she had power to dispose of. What did she mean by the words “ one half part of all my estate,” by which she designated the subject of the payment directed to be made to the legal representatives of Richard Humpton Lister? Clearly not that part which she had, in any event, an indisputable right to dispose of; but all that was her’s for life and enjoyed by her as such. It was still her own when she dictated her will. The direction is declared to be in furtherance of her husband’s arrangement, and it is but a repetition of what he had said. She never meant that the representatives of Mr. Lister should have a moiety of the part left at her disposal in addition to a moiety of the whole ; and the only supplementary arrangement made by her, was to direct that the household furniture specially bequeathed by her, should come out of .the part over which she had an unqualified disposing power. The result of this construction is the same that would be produced by holding her to have been the absolute and unlimited owner of the whole estate; and according to the terms of the agreement the plaintiff below was entitled to "the whole of his legacy.

Judgment affirmed.  