
    William Davison v. James Wolf and Wife, and Others.
    Under the following will: “ I bequeath to my wife my real estate, in -order to raise my younger children, to have it as long as she continues my widow, but if she ceases to be my widow, I wish it not to be disposed of until the youngest child becomes of age,” no partition can be made among the residuary devisees until the majority of the youngest child, although the widow's estate may have become extinct.
    Chancery. From Pickaway. Edward Davison died in 1827, seized of the lands in controversy, leaving a widow, now the defendant, Mrs. Wolf, seven children by a former marriage, and five children by the last marriage. The plaintiff is one of the earlier children, and having acquired the interest of the other six elder children, *seeks by this bill, a partition of the land. Averring that the widow and her husband have forfeited the estate by waste, he also demands an account of rents and profits.
    The waste proven, consists in clearing and improving a plantation of wild land, and burning the logs of some old cabins for firewood; and was thought by the court undeserving of further notice. The answer and evidence present the question whether the estate of the widow and devisees have not so determined, as to leave the plaintiff a right of partition.
    The will of Edward Davison, after some small legacies to his eldest children, bequeaths his property, as follows ; “ I will and bequeath to my wife Elizabeth, after all my debts and funeral expenses are paid, all my personal property and real estate, in order to raise my five (younger) children: I wish her to have all this property so long as she continues my widow, but if she discontinues my widow by reason of death, I wish the property not to be sold, or disposed of, until my son Edward Davison becomes to the age of twenty-one, then I wish my property to be equally divided between my first named children, and my last named children.” Edward Davison, the devisee, will not be of age until 1847.
    Green and Olds, for the plaintiff,
    contend that the will only devises to the wife a life estate upon condition she remains a widow; and by marrying again she has determined her estate. As to the trust for the benefit of the five younger children, there is no difficulty. The object of the testator was two fold, the benefit of the widow as such, and the raising the children. The widow has ceased to be such, and the children are raised, so far as to be no longer a charge. The provision in the will, forbidding the sale of the property in ease of the widow’s death, until the youngest child came of age, was designed to secure them the means of subsistence, when unable to earn it. The devise to the widow was expressly for raising the children, but upon condition she should not marry again. The trust in favor of the, younger depended, upon the event of her dying the widow of Davison; which is rendered impossible by her intermarriage with Wolf.
    J. D. Caldwell, for defendants,
    contended that the condition of the devise to the widow, the raising of the children, amounted to the full value of estate, and inasmuch as she and her husband had faithfully performed the condition, they were to be regarded in,equity as ^purchasers for a meritorious and valuable consideration, of an estate during the life of Mrs. Wolf. The design of the testator evidently being to place the estate beyond the interference of the elder children during the life of his widow and the minority of her children. There is also a trust for the education and support of the younger children, until the youngest is twenty-one years old, which can not be defeated by their mother’s marriage, but will be protected by the court. 2 Munf. 234; Saund. on uses, etc. 349,351; 3 Pr. Wms. 215 ; 2 Atk; 406.
   By the Court,

Lane, C. J.

The plaintiff insists, that by the marriage of Davison’s widow to Wolf, in 1828, her estate under the will ceased, and that the land became subject to distribution among the residuary devisees. To sustain this position, it is necessary to give such an interpretation to that instrument, that not only the widow’s estate is determined by the marriage, but that no other estate was interposed by the donor, between it and those who hold the remainder.

The common principles of the construction of wills, requires courts to search for the meaning of a testator, without regard to the 'form he ■adopts to express it, and to give effect to that intention, if consistent with the policy of the law. It is evident here, that the object of the ■testator was to provide for the nurture of his youngest children, by keeping the estate undivided for their benefit, until the youngest became of age. To this end he gave the land to his wife during her ■widowhood, to raise them;, and when her estate should be ended by her death, he directed it to remain undisposed of during their minority, -evidently as a provision for them. Admitting, then, for present purposes, that the estate of the widow was extinguished by her marriage, the specific object of the testator, in providing for the nurture of his younger children, can not be carried into execution, without creating ran estate, in those depending on the contingency of the falling in of the widow’s interest, before the youngest child became of age. Viewed in this aspect, the relations of the devisees were : a conditional freehold for the life of the widow ; a contingent remainder to all the younger children in fee. Whether the contingent estate in the younger children, be at law or in equity, is of no moment in this suit in chancery ; either is equally destructive of the plaintiff’s claim for partition.

Bill dismissed.  