
    NEW LONDON COUNTY,
    OCTOBER TERM, 1859.
    Present, Stores, C. J., Hinman, Ellsworth, and Sanford, Js.
    Sophia M. Dolbeare and others: Appeal from Probate.
    A testator gave to his widow one-third of his real estate for life; to his daughter L one-half his real estate, subject to the widow’s dower; to his grand-daughter M one-twelfth, also subject to tbe widow’s dower; and the remainder of his real estate to his five remaining grandchildren, to be divided equally among them; the shares óf tbe five grandchildren not being stated however to be subject to the widow’s dower. Held, that it must be regarded as the intention of the testator that these shares should be taken subject to the widow’s dower, like the others.
    Appeal from a probate decree accepting the distribution of tbe estate of Axel Pierce under his will. The important parts of the will are as follows;
    “T give to my beloved wife, Marietta F. Pierce, the use and improvement of one-third part of all the real estate of which I may die possessed, to be for her use during her life time. * * * I give to my daughter, Lydia Pierce, one-half of all my real estate which may be left after paying my debts and funeral expenses, and being subject to the use and improvement or dower of my widow, to be hers and her heirs and assigns forever. Also, I give to my granddaughter, Margaret E. Worthington, and to her heirs and assigns forever, one-twelfth part of my real estate aforesaid, subject to the use and improvement or dower of my widow. All the residue or remainder of my real estate I do give and place into the hands of my executor hereinafter named, to be by him kept [ *591 ] *in trust, and to be by him paid or divided in equal proportions between mv five remaining grandchildren, viz., Charles A. Worthington, Maria E. Dolbeare, Sophia M. Dolbeare, Rhoda M. Dolbeare, and Lydia L. B. Dolbeare, when they shall severally arrive at the age of twenty-one years ; and in case any of my said grandchildren shall not live to the age of twenty-one years, said child’s share shall be divided equally among my remaining grandchildren as before mentioned ; and I empower my executor to sell and convey that portion of my real estate which I have placed in his hands in trust for my grandchildren, and invest the avails of the same in bank stock, or deposit the same in some savings bank in this state, for the benefit of said grandchildren.”
    The appellants were three of the five grandchildren named in the last clause of the will. The shares of these grandchildren had been distributed to them, in part, subject to the widow’s dower, which had been already set out in a portion of the real estate, and they contended, upon the appeal, that it was not the intent of the testator that these shares should be subject to the dower, but that they should have been set out wholly in parts of the real estate not encumbered by the dower. The superior court affirmed the decree of the court below, and the appellants brought the case before this court by motion in error.
    
      Wait and Hovey, with whom was Pratt, for the appellants.
    
      Foster and Holbrook, for the appellees.
   Hinman, J.

It is claimed by the plaintiffs in error in this case, that the superior court gave an erroneous construction to the will of Azel Pierce.

The testator left a widow, a daughter, and six grandchildren, to whom he left his whole estate; and the only controversy is between the daughter and one of the grandchildren on one side, and the other five grandchildren on the other. He gives to his daughter Lydia one-half, and to his granddaughter [ *592 ] Margaret one-twelfth of his real estate, *and at the close of each of these devises he uses this language; “subject to the use and improvement or dower of my widow,” while in the devise to the other five grandchildren of the remaining five-twelfths, he does not say that it is subject to the share which he had previously given to his widow; and the claim is, on the part of the five grandchildren, that the testator intended that their shares should not be subject to the widow’s life estate, but that her share should be taken wholly from the shares of Lydia and Margaret. We think, however, that his intention was to give to the daughter one-half, and to the grandchildren equally the other half, of his real estate which remained after the widow’s share was taken out. The words added to the devises to Lydia and Margaret were not intended to limit the language by which lie had given them their shares, but were used for the purpose of showing that he did not intend that they should i take more than one-half and one-twelfth of what remained after the widow’s share was taken out. The construction claimed and insisted upon by the five grandchildren would make the language of the will contradictory to itself, since Lydia would not get one-half of his real estate left after the payment of debts and funeral expenses, nor Margaret one-twelfth thereof, if the life estate of the widow in one-third of the whole was to remain an incumbrance upon their shares. We are of opinion, therefore, that the superior court construed the will correctly, and that the judgment should be affirmed.

In this opinion the other judges concurred.

Judgment affirmed.  