| N.Y. Sup. Ct. | Aug 15, 1812
Upon this will it is clear, upon the established principles of construction, that the defendant’s father took only an estate for life. The words of the will are, “I give and bequeath unto my eldest son, Daniel Wells, all that part of a lot of land that I now live on.” Here are no words of limitation or perpetuity, though it appears, from other parts of the will, that the testator understood their force and effect, and knew how to use them; nor is there a single word, or expression, which denotes any thing more than a description of the land devised. There is nothing which alludes to the quantity of interest which the testator bad in the land. It is a mere designation of its local situation, and to give this devise the effect of a fee would overset a volume of adjudged cases, and throw the law of devises into inextricable confusion and uncertainty. The cases of Denn v. Gaskin, (Cowp. 657.) Right v. Sidebotham, (Doug. 759.) Doe v. Wright, (8 Term Rep. 64.) and Doe v. Child & Wife, (4 Bos. & Pull. 335.)
2. The next question is, whether the remainder of the testator’s interest in: the premises, after the termination of the life estate, was not devised to the lessor of the plaintiff. He gives to the lessor, in fee, “ All the rest of his estate, both moveable and immoveable, of every kind not disposed of,” and then charges it with some debts and legacies, and in default of his paying the same, the testator directs that so much of the estate so devised to him, should be sold, as should be requisite to pay the debts and legacies. This point is as clear as the other. All the rest of his estate, not disposed of, is a general sweeping clause, that must most obviously embrace the interest in question. After this clause, there could be no dying intestate as to any part of the estate. The authority to the executors to sell any part of his estate on nonpayment of the debts and legacies, cannot be considered as a restraint or qualification of the residuary clause, so as to detach the interest in question from it; for an interest in remainder is capable of being sold no less than a vested interest.
The plaintiff is, accordingly, entitled to judgment.
Judgment for the plaintiff