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By the Court.

Lumpkin, J.

delivering the opinion.

We shall confine ourselves strictly to the case made by the record, as other interests, not at present before the Court, might be prejudiced. Are the complainants entitled to recover the two thousand dollars for which this bill is brought ?

*268[1.] It was given to them, if at all, upon condition that there was no “heir.” What is meant by the words in the 4th item of the will, “in case of no heir ?” It is supposed to mean one of three things, to-wit: no heir at law of the testator’s wife; no heir of her body,' either begotten by the testator or any future husband, or no heir by the testator himself. I suggest, why restrict the words to the heir of the wife ? May the clause not mean as well — perhaps more legitimately — no heir of the testator ? If that be its signification it cuts off much of this discussion.

, But grant that it means no heir of the wife, to which of of the three hypotheses as stated above does it belong ? I remarked during the argument that it did not refer to an heir at law of the wife. It is apparent that it cannot. No one is the heir of the living, and yet this $2,000 is directed by the will to be given to the Claxtons, who are complainants, by the wife of the testator as executrix, and of course during her life. Its vesting, then, could not depend upon the existence or non-existence of an heir at law of Mrs. Claxton.

Did it mean an heir by a future husband ? If we are to presume that the testator knew the law, this likewise is an impossibility. Because, as already remarked, this legacy was to be given over by his wife as his executrix $ whereas, by the very act of marriage, her letters testamentary would be revoked, and the administration, with the will annexed, conferred upon the husband or any other person that the Court might see fit.

But suppose the testator was not aware of the act of 1828, and such is probably the fact, is it likely that he would make this legacy to his near relatives, depend upon an heir to his wife by a future husband ? I have scrutinized this will carefully, and I am fully persuaded that the will was not made in prospect of immediate death, and moreover, the conclusion to my mind is irresistible, that the testator never contemplated a second marriage by his wife. He had ceased *269to look upon offspring born to himself as a probability; he still thought of it as a possibility. He is disposing of estate, not with a view to make provision for children, but recollecting the ages of his wife and himself, he throws in parenthetically, as it were, “in case of no heirand this is all he says upon the subject. /

Is it .a supposable case that the testator intended that this gift of $20<j0 to his nephews and nieces to be paid to them by his wife as his executrix, and in the event of there being no heir, should wait until it was ascertained whether his wife would marry again and then be suspended upon the possibility of offspring by that future marriage before this gift was to take effect ? No such thought ever entered the testator’s mind. I appeal to every husband to repudiate such an unnatural interpretation. Our very love for our wives is outraged by such a construction. The days of stoicism are past when Cato will lend his wife to a friend, or a fond husband, (and such was John Claxton,) make provision by will for the children of his wife, to be begotten by a successor to his bed. No, he meant in case of no heir which should be the fruit of his own loins, and he meant nothing else.

[2.] Having ascertained then, what is meant by this term, let us next enquire what is the proper exposition of this will. Is this an estate tail special ? Clearly not as to the two thousand dollars, the only subject now in controversy. The wife is not given a freehold in this two thousand dollars, and therefore a remainder in tail cannot be ingrafted upon it. But there is another reason : this two thousand dollars, limited to take effect upon the failure of an heir, was to be paid over by the wife as executrix. Of course the testator did not and could not have meant to limit this bequest upon an indefinite failure of issue. He would likely have directed this légacy to be paid at his death, but for the discretion which he chose to give to his wife as to the time of its payment; still that discretion was restricted to her own life at furthest. Suppose the testator had directed in so many *270words the two thousand dollars to have been paid in five years in case there was no heir, could there have been any pretence that an estate tail special was created ? Why should there be, when it is directed to be done by the widow as his executrix. For all the purposes of this argument the principle is precisely the same.

[3.] Lastly as to the form of this bequest; the rule of law is this : whenever the property, the legatee, and the mode of disposition are specified with sufficient certainty, and there is no option as to whether the legacy shall be paid, the bequest is good. Here the sum is definite, $2,000 ; the objects of the testator’s bounty are the Claxtons designated in the will; and the fund is to be equally divided between them. The only discretion left is, as to the time of payment; twenty years have elapsed, and the phraseology used by the testator would seem to convey the idea that the legatee’s interest rather than the widow’s convenience was to be consulted and made the criterion of decision.

What estate by implication, if any, the heir would have taken, had there been any heir, or what estate the widow-takes under the will as to the rest of the property, whether a life estate only in the whole or a fee to a part and a life estate in the rest, it is unnecessaiy and improper to express any opinion.

Judgment reversed.

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