
    (75 Hun, 432.)
    PLACE et al. v. BURLINGAME et al.
    (Supreme Court, General Term, Fourth Department.
    February 15, 1894.)
    Wills—Life Estate.
    Only a life estate passes under a will which provides that “I give and bequeath to my wife, X, my real estate in the town of W„ and appurtenances thereunto belonging, together with all my household furniture, or, rather, the use thereof during the period that she may live and remain my widow.”
    Appeal from circuit court, Cortland county.
    Action by Frank Place and others against Miles E. Burlingame and Amy Burlingame to recover possession of certain lands in the town of Willett. From a judgment entered on a verdict directed in favor of defendants, plaintiffs appeal. Reversed.
    On the 8th of October, 1860, Henry T. Jones executed his last will and testament, which was admitted to probate, and contained the following clause: “I give and bequeath to my wife, Johanna Jones, my real estate in the town of Willett, and appurtenances thereunto belonging, together with all my household furniture, or, rather, the use thereof during the period that she may live and remain my widow. Her furniture, bedding, etc., that she had of her own when I married her, is to be at her disposal. I also give to her my cow free and clear. Also, further, I give to her one hundred dollars, said hundred dollars to be paid to her by my executors hereinafter named within two years after my decease, and the other property above named she is to have at my decease." The will also contained specific legacíes of $400, and also: “Fourthly. I give and bequeath one-half of all the rest, residue, and remainder of my estate, both real and personal, of every name and nature, to be divided among the children of my son, Benjamin Jones, equal, and the other half I give and bequeath and to be divided equal among the children of my daughter, Julia Ann Place.” The testator’s second marriage, to Johanna Huling, took place on the 5th day of October, 1856, she then being a widow, having children, the issue of her former marriage. On the 7th day of November, 1856,-33 days after the marriage,—the testator executed and acknowledged a conveyance to his then wife, Johanna, wherein and whereby he quitclaimed unto her the premises described in the complaint, which conveyance contained the following language: “To have and to hold the said released premises, with the appurtenances thereunto belonging, unto the said J. Hannah E. Jones, for and during her natural life, or for and as long as she shall remain the widow of the said. Henry T. Jones in case of his death. And also the said Henry T. Jones sells, assigns, and hereby sets over to the said J. Hannah E. Jones all the household furniture, to be at her disposal and use so long as. she shall remain the wife or widow of the said Henry T. Jones, and no longer.” That instrument was acknowledged upon a recited consideration of $1,500, and was recorded on the 17th day of November, 1857. The testator, died on the 30th day of October, I860, and his widow, Johannah Jones, died on the 22d of October, 1888, intestate. The plaintiffs are grandchildren of the testator, being all the children of his daughter, Julia Ann Place, and his son, Benjamin Jones, and the only persons who would take as residuary legatees under the will of the testator. The defendant Amy Burlingame was a daughter of Johanna, and the defendant Miles B. Burlingame was the husband of the daughter. At the close of the evidence the plaintiffs asked “to go to the jury upon the question as to what was the intention and purpose of the testator in the devise in question upon all the facts and circumstances of the case.” Thereupon the court remarked, “I will deny the motion to go to the jury,” and to that ruling the plaintiffs took an exception. Thereupon the court observed, viz.: “I hold under that will the widow took the fee of the Willett property, and that results in a nonsuit against the plaintiffs. Nonsuit granted.” To that ruling the plaintiffs excepted. Thereupon the plaintiffs’ counsel took an exception to the ruling of the court “that it was the intention of the testator to make an absolute gift to his wife.” In response thereto the court observed, “I bold that he did do it.” Thereupon the plaintiffs took an exception. The defendants' motion for a nonsuit was granted, and, pursuant to the direction of the court, the jury rendered a verdict for the defendants.
    Argued before HARDIN, P. J., and MARTEN and MERWEN, JJ.
    B. T. Wright, for appellants.
    Kellogg & Van Hoesen and Eugene Burlingame, for respondents.
   HARDEN, P. J.

Interpretation of the testator’s will, and a declaration of his intent, as evidenced by the language of the will, must be had in order to solve the question presented by the appeal. Respondents’ learned counsel call our attention to a provision of the Revised Statutes, which is as follows: “Every grant or devise of real estate or any interest therein shall pass all the interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms or be necessarily implied,” (Rev. St. [8th Ed.] p. 2461, § 1:) and under that statute, and the language of the will, contend that the testator devised in fee to the widow the house and lot in question, and call our attention to cases which have interpreted the statute, and in which it has been declared that all the interest of the testator passed under language used, unless it appear by express terms, or it was necessarily implied, that a less estate was intended to pass. Among the cases referred to are Roseboom v. Roseboom, 81 N. Y. 356; Campbell v. Beaumont, 91 N. Y. 464; Crain v. Wright, 114 N. Y. 307, 21 N. E. 401; Schult v. Moll, 132 N. Y. 122, 30 N. E. 377. The phraseology found in the cases referred to differs from the phraseology found in the will before us. We think the testator intended to devise only a life estate to his wife when he used the words: “I give and bequeath to my wife, Johanna Jones, my real estate in the town of Willett, and appurtenances thereunto belonging, together with all my household furniture, or, rather, the use thereof during the period that she may live and remain my widow. Her furniture, bedding, etc., that she had of her own when I married her is to be at her disposal.” We think the words, “or, rather, the use thereof during the period that she may live and remain my widow,” relate to and control all the antecedent language used in connection with the devise to the wife, and limited her to the use of the property during the period of her life, subject to a sooner determination if she had ceased to be his widow. Construing the words as relating to the real estate as well as to .the household furniture, they were apt and appropriate to cut down what otherwise might be a devise to her in fee of the real estate. We think the words, “I also give to her my cow free and clear,” do not aid the contention of the respondents; on the contrary, the words indicate that the testator, by the use thereof, understood what language to use when making an absolute bequest. The contention of the appellants is somewhat aided by the clause found in the fourth provision of the will wherein the testator gives one-half of all “the rest, residue, and remainder of my estate, both real and personal, of every name and nature,” to his grandchildren. We are therefore of the opinion that upon the close of the life of the widow her interest in the real estate ceased, and the same passed, under the residuary clause, to the grandchildren, who are the plaintiffs in this action. Areson v. Areson, 3 Denio, 458; Van Allen v. Mooers, 5 Barb. 110; Thomas v. Snyder, 43 Hun, 14; Crain v. Wright, 114 N. Y. 307, 21 N. E. 401; In re McClure, 136 N. Y. 238, 32 N. E. 758; Tallman v. Tallman, (Super. N. Y.) 23 N. Y. Supp. 734; Dew v. Kuehn, 64 Wis. 293, 25 N. W. 212.

We have not overlooked the argument of the respondents, based upon the circumstance that in October, 1856, the testator conveyed a limited interest in the premises in question to his wife. The language then used is quite indicative of an intent on his part to vest her with only the use of the premises during her widowhood or life; and in answer to the argument that is made that it was his intention, by the use of the language found in his will, to give her a greater interest in the real estate, it may be observed that he was presumed to know the law that at that period of time a conveyance from husband to wife direct was not valid at law. Johnson v. Rogers, 35 Hun, 267; Graham v. Van Wyck, 14 Barb. 531; Winans v. Peebles, 32 N. Y. 423. It is not unreasonable to suppose that he used the language in the will relating to the real estate to confirm to her a life use of the real estate. We think the construction of the will which obtained at the circuit ought not" to remain. Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event. All concur.  