
    Orlando B. Merrill, Administrator, versus Moses Emery, Executor.
    Devise : —“ I give to my wife one half of all the money which I may leave in my house at my decease, together with all my family stores at that time on hand, subject to the following conditions, viz. that my said wife shall relinquish all her right to dower in my estate, and provided that she educate and bring up my granddaughter M. L. R. ; and it is my will also, that my said granddaughter shall have all the family stores my said wife shall leave at her decease, and that whatever money my said wife may have in her possession at the time of her decease may be equally divided between my said grandchildren and their respective heirs." The wife died in seven days after the testator, without expressly waiving the provision made for her in the will, or claiming her dower. It was held ;
    That her acceptance of such provision might be presumed, it being more beneficial than her right to dower : —•
    That the condition to educate the granddaughter was a condition subsequent, and so Lite legacy vested in the wife, and the non-performance of this condition, being occasioned by an act of Providence, did not devest the legacy : —
    And that the bequest of the money on hand and family stores to the wife, was absolute, and therefore the limitaiion over of so much thereof as should remain at her death, was repugnant and void.
    Assumpsit for a legacy.
    The parties agreed, that on September 18th, 1826, Josiah Smith made his will, appointing the defendant his executor, and bequeathed to Mary Smith, the plaintiff’s intestate, as follows : — “I give to my wife Mery Smith twenty-five shares in the NewburypOrt bank, and one half of all the money which I may leave in my house at my decease, together wdth all my family stores at that time on hand. I also give her the use of my household furniture during her natural life, excepting such part thereof as is otherwise disposed of in this will. I also give her my pew in &c. during her life. The foregoing bequests being subject to the following conditions, viz. that my said wife shall relinquish all her right of dower in my estate, and provided also that she educate and bring up my granddaughter Mary L. Richards until she arrive at the age of eighteen years or is married, as the case may be. And at the decease of my said wife, I give all the furniture above given to her use for life, to my said granddaughter Mary L. Richards and her heirs. And it is my will also, that she have all the fam' ly stores which my said wife may leave at her decease.” — And' it is also my will, that whatever money my said wife may have in her possession at the time of her decease, may be equally divided between my said granddaughters and their-respective heirs.”
    On September 9th, 1828, the testator died, leaving twenty-five shares in the Newburyport bank, $ 507 in money on hand, and family stores to the value of $ 92, his wife then living in his house, and being in possession of the $ 507 and the family stores.
    On the evening succeeding the funeral of the testator, Mary Smith was taken ill, and on the 16th of the same month she. died, without ever having expressly, by writing or other proceeding, in the probate court or elsewhere, waived the provision made for her in the will; nor did she ever claim dower. The provision for her under the will was of more value than all the real estate of the testator.
    Soon after the death of the testator the defendant took possession of his personal property, including the $ 507 and the family stores, and on September 30th he caused the will to be proved in due form of law ; and on the same day the plaintiff took out letters of administration on the estate of Mary Smith The plaintiff soon afterwards made a demand of the property so bequeathed to his intestate, which the defendant refused to deliver without an order of court.
    At the time when Mary Smith was married to the testator, in 1804, she was possessed of personal property of the value of $ 2500, and of a life estate in certain real prbperty of the value of $ 5000.
    Mary L. Richards, the granddaughter, was twelve years old at the time of the decease of the testator, and is now living.
    
      Mbv mi.
    
    ./. Pickering and Marston, for the plaintiff,
    contended that the bank shares, half of the money on hand, and the family stores, (for which bequests only the action was brought,) vested in the wife immediately upon the death of the husband. 1 Roper on Leg. 414 ; Harrison v. Foreman, 5 Ves. 207 ; Randall v. Russell, 3 Meriv. 193.
    The condition that the wife should waive her dower, is nugatory, being no more than the provision in St. 1783, c. 24, § 8, that a widow may waive the provision made for her in the will of her deceased husband and claim her dower. Unless she waives such provision and claims dower, the property devised vests in her, as in the case of any other legatee. In the present case the assent of the widow to take under the will, is to be presumed, this being most for her benefit. Stebbins v. Lathrop, 4 Pick. 43 ; Townson v. Tickell, 3 Barn. & Ald. 31.
    The condition in regard to educating the granddaughter, is a condition subsequent; so that the legacy vested, subject only to be devested by non-performance of the condition ; and this condition is saved by the act of God. Lowndes on Leg. 12,106 ; Finlay v. King's Lessee, 3 Peters, 346 ; Aislabie v. Rice, 3 Madd. Ch. R. 256 ; Cavendish v. Lowther, 3 Bro. P. C. 186 ; 1 Roper on Leg. (ed. 1828) 513, 523, 525 ; Preston on Leg. 109 to 119; 1 Bac. Abr. 677, Condition, Q. Non constat that the education was not commenced by the intestate, and it may be continued by her representatives. 1 Bac. Abr. 662, Condition, P.
    
    The condition respecting a waiver of dower, was likewise a condition subsequent.
    
      Moseley, for the defendant.
    The relinquishment of dower, and the education of the granddaughter, are both conditions precedent. Burgess v. Robinson, 3 Meriv. 7 ; S. C. 1 Madd. Ch. R. 172; 1 Roper on Leg. 516 ; Tulk v. Houlditch, 1 Ves. & Bea. 248, 259 ; Atkinson v. Turner, 2 Atk. 41.
    The widow might have released her dower, as she survived her husband seven days. Her acceptance of the legacy cannot be presumed, inasmuch as it would impose on her the burden of educating the granddaughter.
    But if the provision respecting the education of the granddaughter was not a condition precedent, it was a condition subsequent which has not been performed. A charge was imposed on the widow requiring her personal attention. Taylor v. Johnson, 2 P. Wms. 504 ; Hayden v. Stoughton, 5 Pick. 528.
    Admitting there was no condition in the will, still so far as regards the money on hand and the family stores, the widow took only a life estate, with a limitation over to the grandchildren. The terms of the limitation over, are indeed broad enough to embrace all the money and family stores which she might leave, from whatever source derived, but they will be construed to apply only to the money and family stores left by the testator.
    Pickering, in reply, cited on this last point, Pushman v. Filliter, 3 Ves. 9 ; Standen v. Standen, 2 Ves. Jun. 591 ; Strange v. Barnard, 2 Bro. C. C. 585 ; Preston on Leg. 139.
    -You. Wth.
    
   Shaw C. J.

delivered the opinion of the Court. Several objections are made to the plaintiff’s recovering in this action. The first is, that the legacy claimed by the plaintiff was to vest only upon the performance of certain conditions which have not been complied with by the legatee. This objection applies to all the several subjects of the bequest.

One of the conditions was, that the legatee should relinquish her right of dower in the estate of the testator.

We think it would be a forced construction of the will, to construe this a condition precedent, in the manner contended for. It did not imply that the widow should, by any express and formal act, release her dower; it would be a sufficient compliance that she made no claim, but tacitly waived her right. The plain intent was, that she was not to have the provision in the will and also her dower ; and the same construction would have been put upon this bequest, by force of the statute, had the will contained no such condition. St. 1783, c. 24, § 8. In such case a widow has a reasonable time to make her election, and unless she elects to claim her dower, her right to the provision under the will is not defeated or suspended. In the present case it is manifest, that the widow did no act in her lifetime denoting any intention to claim her dower, and certainly no unreasonable time elapsed, within which she coul’d make her election.

But there is another view of the subject, which is this ; whether, where a personal right depends upon an election, and no express election is shown, nor any positive act or declaration, manifesting such election, an election is not to be presumed from the circumstances ; and we think it may be.

The question then is, what was the widow’s presumed election ; to determine which it becomes necessary to look into the facts. It appears by a reference to the inventory, which is now made part of the case, that the whole of the testator’s real estate was not equal in value to the provision in the will. It is manifest therefore, that she could not, without acting greatly against her interest, elect to take one third, of this real estate for her life, the provision in the will being obviously so much more beneficial. The presumption of law therefore is clear, that she must have elected the provision, in preference to her dower. The first condition therefore does not stand in the way of the plaintiff’s recovery.

The other condition was, that the legatee should educate and bring up the testator’s granddaughter. This is clearly a condition subsequent. It was to be performed for a time which might, and probably would continue long after the legacy was to vest. The defendant objects that it was not complied with. To this there are two answers ; depending upon the force of the terms educate and bring up. If they imply personal parental care, then the duty terminates with her own life, and the condition was performed. She did educate and bring up the granddaughter, so long as she lived ; though it was indeed for a very short period. Besides, in the case of a condition subsequent, the act of God excuses non-performance. But if “to educate and bring up’’means to furnish subsistence to the granddaughter, then the condition was a mere charge on the legacy ; and it might be performed by the personal representative, and would not prevent the legacy from vesting. We think that a personal care was intended, and consequently that by the death of the legatee the legacy became discharged of the condition.

This point may be viewed in another light. Suppose the granddaughter had died. The legatee would then have been excused from the further performance of the condition. Such an event would not have defeated the legacy ; and the death of the wife is of the same nature.

The remaining questions relate to the particular subjects of the bequest.

The law warrants a bequest for life, of various kinds of personal property, with a limitation over ; and we are to consider how this principle applies to the bequests in the present case. The gifts of the bank shares, and of one half of the money in the house, were in terms absolute, and without any limitation over. But it is contended that the expression of the will, that whatever money the wife might have in her possession at the time of her decease, might be equally divided between the testator’s granddaughters, was in effect a limitation over, of the money before given to his wife, and so reduced that bequest to a gift for life, by implication. But to this view there are two objections. First, it is a well settled rule, that if a gift is absolute and entire in its terms, any limitation over afterwards is repugnant and void. But another and decisive objection is, that the money in the wife’s possession at her decease, was not understood by the testator to be the same money which he gave her by the will, and of course, the recommendation or direction in the latter clause, was no limitation over, of the money bequeathed to her in the former. If the money in the wife’s possession, had been given to her for' her life only, this clause might have borne a different construction. Where a testator has a disposing control, these words might be construed to be an authoritative disposition ; but otherwise, they must be construed to be words of recommendation only. Where the testator intended to give personal property to his wife for life, with a limitation over, he has done it in apt and precise terms, as in the case of the furniture. Here there is no expression or implication that he intended to give the money to his wife for life and not absolutely, and the general circumstances would lead to the opposite conclusion.

In regard to the family stores, the same rule, to a certain extent, applies. The gift to the wife is absolute, and the subsequent direction applies to all the family stores which the wife may leave, not those which the testator leaves to her. Perhaps he might suppose that he had a power of disposing of all such personal property as his wife might leave, under which mistaken belief he inserted these expressions of his will; or perhaps, what is more probable, he used these expressions by way of request and strong recommendation to the wife.

But there is another rule applicable to this species of property, which is, that where the use of things is given, which are necessarily consumed by the use, the gift is absolute and the limitation over is void.'

The result is, that as to the bank shares, one half of the money in the testator’s house at the time of. his decease, and the family stores, the plaintiff is entitled to recover. 
      
       See Revised Stat. c. 60, § 11.
     
      
       See Delay v. Vinal, 1 Metcalf, 57; Bailey v. Culverwell, 8 Barn. & Cressw. 448; Marston v. Butler, 3 Wendell, 149; Camp v. Camp, 5 Connect. R. 291; 2 Phil. Ev. (Cowen & Hill’s ed.) 303, notes.
     
      
       S held in Richards v. Merrill, 13 Pick. 405
     
      
       Non-performance of the condition of a bond or recognizance is excused when performance becomes impossible by an act of Divine Providence. People v. Manning, 8 Cowen, 299; Holland v. Bouldin, 4 Monroe, 147
     
      
       See Field v. Hitchcock, 17 Pick. 182.
     
      
       See 2 Kent’s Comm. (3d ed.) 353, 354.
     