
    Ardelle J. Brown, Appellant, v. Chastina E. Perry, Olivia I. Merritt and Chastina E. Perry, as Executrix, etc., of Laura E. Scofield, Deceased, Respondents.
    
      Will—clause devising property to a wife with power to sell “ftr her own personal benefit and for my children ” it gives an absolute fee-to the wife.
    
    A will providing : “After all my lawful debts are paid and discharged. I give and bequeath to my wife, Laura E. Scofield, all of my personal and real estate of every name and nature, with power to hold, mortgage or sell and dispose of the same at public or private sale at such times and upon such terms as she may deem best for her own personal benefit and for my children,” vests the absolute fee of the testator’s real estate in his wife; the reference to the testator’s children is to be treated merely as the expression of a parental desire and not as a limitation of the devise.
    Appeal by the plaintiff, Ardelle J. Brown, from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Genesee on the 18th day of November, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Genesee Trial Term.
    
      Frank S. Wood, for the appellant.
    
      George Bowen, for the respondent Chastina E. Perry.
    
      William West Shaw, for the respondent Olivia I. Merritt,
   Adams, P. J.:

One Samuel Scofield departed this life in the year 1878, leaving a last will and testament which was subsequently duly probated. By such will the testator made the following disposition of his-property, viz.: “ After all my lawful debts are paid and discharged,

I give and bequeath to my wife, Laura E. Scofield, all of my personal and real estate of every name and nature, with power to hold, mortgage or sell and dispose of the same at public or private sale at - such times and upon such terms as she may deem best for her own personal benefit and for my children.”

Laura E. Scofield, the widow of the testator, survived her husband until JVIay 12, 1899, when she also died, leaving a last will and testament, by which she gave and devised all of her property to the defendant Chastina E. Perry.

This action is brought to partition a farm of about twenty-five acres of which Samuel Scofield was seized in fee at the time of his decease; and the sole question to' be determined is whether, under the above provision of his will, his widow became the owner of 'the absolute fee of such premises,, or. simply of a life estate therein. . . ■ •

The record which the appeal brings before us fails to disclose the entire will of Samuel Scofield, and it must consequently be assumed that the clause above quoted is the only provision of that instrument by which any testamentary disposition of the testator’s property is.

.accomplished. Such, indeed, is' the plain import of. its language; and this being the case, it necessarily follows that the intent of the. testator must be gathered from that clause, unaided by any other qualifying or explanatory provisions. Circumscribed by this limitation, the task which is set before us may be easily performed by invoking two familiar rules of construction, one of which is that an express devise can be limited and controlled by succeeding words; only where such words are definite and certain in their meaning, and the other requires that, in order to limit a fee, there must be an actual disposition of the same property to some oth'er person or • object.. (Collet v. Lawrence, 1 Ves. 269; Jones v. Colbeck, 8 id. 42; 1 Jarm. Wills, *294; Parsons v. Best, 1 T. & C. 211.)

With these rules in- mind, the first thing to be noted is that the clause we are' now construing contains no devise over to any person whatsoever, nor does it, either expressly or impliedly, confer ■ upon ' any one but the devisee nanied therein the. right to interfere in any manner with the enjoyment or disposition of the estate devised. 'This omission is significant, for had tne testator intended to give to .his wife a life estate only, it is reasonable to suppose that he would have indicated with some degree of . certainty the person to whom "the remainder should go. But even greater significance must be given to the first part of the clause in question, for by it the testator expressly declares that after all his lawful debts are paid and discharged, he gives and bequeaths to his wife, Laura E. Scofield, all •of his personal and real estate of every name and nature. Assuredly this language would seem to be sufficiently explicit to indicate an intention upon the part of the testator to vest his wife with an absolute fee to the estate devised, and, therefore, it only remains to be determined whether the intention thus expressed is in any sense impaired or qualified by the words which follow, viz., with power to hold, mortgage or sell and dispose of the same at public or private sale at such times and upon' such terms as she may deem best for her own personal benefit and for my children.”

We are clearly of the opinion that it is not. As the owner in fee, "the devisee would have the right, in the exercise of her discretion, to make precisely the same disposition of the estate devised as is -contemplated by the will, and the provision which it is claimed requires that the testator’s children should share in any benefit which might result therefrom must, we think, be treated merely as the expression of a parental desire, and not as a limitation of the -devise. Certainly this language is not sufficiently definite and certain to meet the requirements of the rule to which we have adverted; nor, as we construe it, does it in anywise conflict with the absolute ownership of the property by the devisee. (Washbon v. Cope, 144 N. Y. 287 ; Benson v. Corbin, 145 id. 351; Goodwin v. Coddington, 154 id. 283, 286.)

It follows.that the judgment appealed from should be affirmed.

All concurred.

-Judgment affirmed, with costs.  