
    Sevier et als. vs. Brown.
    Construction of Whitings. Will. Testator, Thomas Brown, made the following bequest: “ To my wife I give all my household furniture and farming tools of every description, and the one-half of all my stock of every description not disposed of; and I give her the following negroes, to-wit: Manuel and his wife, Nancy; big Phil; Samuel and Nancy, his wife; boy Henry Clay; Malinda and child, Winston; and after her death; if not disposed of by her, after her death to goto the children of Mary Caroline Sevier, (after her death,) and the use and benefit of my man Handy, during her life, with the use and benefit of my land and ferry her life time, and Arch and wife.” Held that an unlimited power of disposal is conferred upon Mrs. Brown by this clause, and that a remainder, created to depend upon the non-disposition of an estate by the first taker, who has an unlimited power of disposition, is void.
    This was a bill filed by complainants in the chancery court at Kingston, alleging that they had a remainder interest in the property mentioned in that clause of the will of Thomas Brown, quoted in the opinion, and that the widow of Thomas Brown was about to sell or dispose of a portion of the property, to prevent which they prayed the injunctive interposition of the court. The chancellor, "Williams, decreed that Mrs. Brown had an unlimited power of disposal, and the complainants appealed.
    SNeed & Temple, for complainants
    argued: The great rule in the exposition of wills is, that the intention of the testator shall prevail, provided it does not conflict with any rule of law; and in ascertaining that intention, the whole will is to he looked to, and not merely detached passages. Another rule is, to give effeet to all the words, without rejecting or controlling any of them, if it can be done by a reasonable construction; Black. Bom. Vol. 1, Book 2, top page, 307.. A third rule is, that if the words will bear two senses, one agreeable to, and ¡another against law; that sense be preferred which is most agreeable thereto. Id.
    
    
      The words in the will, “and after her death, if not disposed of by ber, after her death to go to the children of Mlary Caroline Sevier, after her death,” plainly show an intention on the part of the testator to leave a remainder interest in the slaves to the children of Mrs. Sevier. If he intended to give her the entire interest, why did he use the expression, “ after her death,” three times ? It is ° evident he felt great solicitude about his grand children, and that he wished them to have these negroes at the death of his wife. To dispose of them thus, is consistent with the idea of the most tender affection for her. At her death they will have answered the purpose for which they were given, that is to wait upon and support her. How natural then that he should give them to his grand children, for whom he had the most tender regard, instead of leaving them to go to his wife’s heirs.
    Again: after he had used the only expression relied on by respondent, to wit: “ if not disposed of by her,” he goes on to say, in an independent member of the sentence, “ after her death, to go to the children of Mary Caroline Sevier.” If he had intended her to have them absolutely, why would he have used those words? 'Why would he attempt to dispose of 'them after her death? In the codicil, where it is admitted the entire interest in the slaves, Bob and Mmgo, is given to her, there is no such language used; there is no attempt to dispose of her absolute property after her death.
    Regarding it as clear that the words in the last part of the sentence, if standing alone, would give the remainder interest to the children of Mrs. Sevier, then the expression “ if not disposed of by her,” is either to be regarded as surplusage, and therefore to be rejected, or, as conferring on her the power of defeating the remainder interest wbicb is unequivocally created by tbe following words. Tbe intention to qualify tbe estate in remainder, or to confer tbe power of defeating it on bis wife, would render tbe remainder void for uncertainty. But if tbe intention to give a remainder interest is plain, tbe intention to qualify it would be illegal, and therefore void. If tbe testator attempts to effect tbat wbicb the law forbids, bis will must yield to tbe rules of law. 6 Peters B. 79.
    Tbe intention to give tbe remainder to tbe grand children, will not be defeated unless it be indispensable. If two clauses in a will are repugnant, they are to be reconciled, if possible, by a reasonable construction, rather than reject either of them. In tbe construction of words very similar to tbe ones now under consideration, Chief Justice Marshall, in tbe case of Smith vs. Bell, in 6 Peters 79, referred to above, says: “ If tbe first bequest is to take effect according to tbe obvious import' of tbe words taken alone, tbe last is expunged from tbe will. Tbe operation of tbe whole clause will be precisely tbe same as if tbe last member of tbe sentence were stricken out; yet -loth clauses me eqioall/y the words of the testator, are equally Toimdvrog, and equally clamo the attention of those who may construe tbe will. ¥e are no more at liberty to disregard tbe last member of a sentence than tbe first. No rule is better settled, than tbat tbe whole will is to be taken together, and is to be so construed as to give effect, if possible, to tbe whole. Either tbe last member of tbe sentence must be totally rejected, or it must influence tbe construction of tbe first so as to restrain tbe natural meaning of tbe words.”
    In tbe construction of wills, it is a rule tbat tbe last of two contradictory clauses prevails over the first. Black. Com. 1 Yol. Book 2, 307; Roberts on Wills, 2 Yol. 230; Meigs’- Big., Yol. 2, 1015.
    Ceoziee, for respondent.
   G-REene, J.,

delivered tlie opinion of tlie court.

The only question in tbis case is, whether the complainants, children of ■ Mary Caroline' Sevier, take a remainder interest in certain negroes, which they claim under the following clause of the will of their grandfather, Thomas Brown: “To my wife I give all my household furniture and farming tools of every description, and the one half of all my stock of every description not disposed of; and I give her the following negroes, to wit: Manuel and his wife, Nancy, Big Phil, Samuel and Nancy, his wife, boy Henry Clay, Malinda and child Winston, and after her death, if not disposed of by her, after her death to go to the children of Mary Caroline Sevier (after her death,) and the use and benefit of my man Handy during her life, with the use and benefit of my land and ferry her lifetime, and Arch and wife.”

We think it clear that an unlimited power of disposition is confered on Mrs. Brown by this clause. In the first place, the testator gives these negroes and other property by general unrestricted words, and the gift of the remainder to the complainants, is then made to depend upon the contingency that the property shall not be disposed of by his wife. This shows, that so far from having an intention, by the creation of a remainder, to limit the estate first given to his wife, he expressly excludes such an interpretation by declaring that this remainder is to take effect, if tbe estate “is not disposed of by her.”

The remainder thus created, to depend upon the non-disposition of an estate by the first taker, who has an unlimited right, and power of disposition, is void.

The case of Smith vs. Bell, as decided by this court, (Mart. & Yerg. Rep., --) has been uniformly followed in many cases which need not be referred to, rather than the judgment of the supreme court of the IJ. S. in the same case in 6 Peter’s R.

Any argument in favor of the rule of decision adopted by this court, would be superfluous.

Affirm the decree.  