
    GENERAL COURT,
    OCTOBER TERM, 1791.
    Henry O’Neale against Joseph Ward.
    THIS was an appeal from the county court of MontgomeryIt was an action of partition brought by the appellee against the appellant for the partitioning of -three parcels of land called Ward’s Chance, Beall’s Design, and Comfort.
    
    By an exception taken at the trial of the cause, it appears the plaintiff claimed title to the lands in question, as heir at law to Joseph Ward, deceased, and read in the evidence the will of the said Joseph Ward, in which was the following devise: “ I give and bequeath to my wife during her widowhood, all my lands ; but in case she should marry, my desire is, that she take one third only, and after her decease, I give all my land to be equally divided between my three sons ; and in case any or either of them die without a will, • or heirs of their bodies, to be equally divided between the survivors. As to the rest, or remaining part of my estate that ite not willed, my desire is, that first my wife take one third in what she likes, and the other two thirds to be equally divided among my children.”
    The plaintiff proved the marriage of the widow and devisee of the said Joseph.
    
    The defendant prayed the direction of the court to the jury, that by the residuary devise in the said will, all the interest and estate real and personal of the said Joseph Ward, deceased, not before disposed of, passed to the wife and children under the said devise, and that no part of his land descended to the said Ward, as his heir at law, on the marriage of the widow of the devisor, and therefore the plaintiff ought not to recover; but the court were of opinion, that the contingent interest which the testator had in the lands, on the marriage of his widow, did not pass by the residuary devise to hei' and his children. The defendant excepted.
    
      B. Johnson, for the appellant.
    
      W. H. Dorsey and Gant, for the appellee.
   The general court reversed the judgment of the county court, being of opinion that by the will, the wife of Joseph Ward took an estate for life in all the lands during her widowhood, and'on that event, she took one third for life. On her death, his three sons took an estate of inheritance in all the lands. On her marriage, the two thirds passed, by the residuary clause in the will of Jq* seph Ward, to her and his children during her life.  