¶1delivered the opinion of the court:
¶2The hill in this case was filed for the purpose of restraining plaintiff in error from selling certain real estate" described in the bill. The whole controversy arises on the construction of the last will of David Siegwald, from whom both parties claim title. The clause of the will under which the question in dispute arises, is this: “I give and bequeath to my beloved wife, Antonia, all my real and personal estate wheresoever situated, in fee simple absolute forever, that is to say, that my said wife shall have all of the benefits thereof, until the expiration of her life, at which time my son, Anton, shall be the only heir of real or personal estate, what may be left.” He then appoints his wife executrix of the will. The bill alleges that the will was proved and duly admitted to record in the proper office and that letters testamentary were duly granted by the probate court.
¶3It is also alleged in the bill that plaintiff in error was about to sell the real estate and to convey the same in fee simple absolute. Thai the property proposed to be sold was worth near thirteen thousand dollars, and was incumbered by the testator in his life time to the amount of about three thousand dollars, which still continued- on the premises, and that one of the objects of the sale was to pay the incumbrance. Complainant insists that by the terms of the will, defendant has only a life estate in the premises, and that the fee simple estate is vested in h'im, subject only to her life estate. The bill prays an injunction to restrain the sale of the premises. To this bill a demurrer was filed, and on the hearing it was overruled and an injunction decreed restraining plaintiff in error from selling the property; to reverse which, this writ of error is prosecuted.
¶4Had the devise contained no language designed to operate as a limitation, the will would have been free from all difficulty. The first clause unaffected by the words of limitation, unquestionably vested a fee simple absolute, and plaintiff in error insists that-they are repugnant to the devise, and are, therefore, inoperative, and leaves an estate in fee in the devisee, and not a life estate. Wills, like all other instruments, must be so construed as to effectuate the intention of the testator, and that intention must be ascertained from the language employed in the instrument itself. And in arriving at the intention, all of the language employed must be considered. It seems to be evident that the testator did not intend to devise to his widow a fee simple absolute, otherwise he would not have added the limiting clause.- Had that been the intention, he had fully accomplished the purpose without employing the latter clause; but when he did so, it must have been to limit or qualify the estate already devised.
¶5By the limiting clause, the testator declares that she shall only have the benefit of the estate until her death. This would seem to manifest the intention only to devise a life estate, as all would have admitted had he not in the previous clause declared that she should take “in fee simple absolute forever.” It may be that he designed to devise to her a contingent fee depending upon the survivorship of herself and the son. That in the event of the death of the son, she surviving him, she should have the fee, but in case of her death before that of the son, he .should take the fee; and. until that was determined, that., she should use and enjoy the benefit of all the property. And it is altogether probable, that this language that the son should be the heir to what might be left at her death, had the devise not embraced goods and chattels, would have been different. Had it related to land alone, different language would probably have been employed.
¶6We are, however, of .the opinion that the design was to give the widow simply a life estate in the property, in remainder .over to the son. But the personal-property being perishable in 'its nature, and generally of that character that it must be used or consumed to be enjoyed, he only provided that the son should take such portion as remained at her death. Hence the language employed in the will. We think that this is the most reasonable construction that can be applied to the whole clause when considered together. To adopt the construction contended for by the plaintiff in error, we must reject the whole of the qualifying words of the devise, and this we are not at liberty to do unless when considered, the provision is repugnant to the law, and contravenes its rules or policy. Then does this devise, limited as a life estate to the widow, in remainder to the son, contravene any rule of law, as it clearly does not its policy? We are referred by plaintiff in error to the case of Jackson v. De Lancy, 13 Johns., 537, as an authority which supports the position that she took a fee simple estate notwithstanding the limitation over. The court there said there was no disability on the part of Lady Sterling as she owned the whole .estate in fee. The devise to her, was of “ all the real and personal estate whatsoever, etc.,” and the court say that th'e word estate carried a fee, and the farther provision in the will, that if she died “without giving, devising, selling or assigning it, etc,” the estate should go to his daughter, Catharine Duer, was not a good limitation by way of executory devise, as such a limitation' was repugnant to the power to sell, and, consequently void. The case of Jackson vs. Bull, 10 Johns., 19, is referred to in support of the opinion of the court which announces the same rule.
¶7It will be observed, that in these cases, an express power to sell is given, or language employed from which the law implies the power. In the first case referred to, the limitation is upon the condition that the first taker should not give, devise, sell or assign the property during her life. In the latter the property was devised to the son, his heirs and assigns. The case of Ide v. Ide, 5 Mass., 500, was a devise to a son of the testator in fee, with devise over, in case the' devisee should die without issue. The court there held that the limitation was repugnant to the devise, and that an absolute estate vested in the first devisee, which was not divested by his dying without issue ; considerable stress is placed upon the fact that the devise over, was of whatever estate he might have at his death without lawful heirs from which the court inferred, that it was the intention of the testator to give full power to dispose of the property, which he did in his life time.
¶8In the case at'bar, however, the testator not only makes an executory devise of the estate at the death of his wife, to his son, but he expressly limits the enjoyment of the property to her benefit until the termination of her life. Had this been a deed, there can be no question that the limitation would have been void as repugnant to the fee previously granted. But the entire clause is contained in one sentence, and he nowhere, in terms, gives power to sell the property. It is true that he gives to his son, after the death of his wife, what may be left of the real and personal property. But he no doubt knew that the personal property would not remain until the period arrived when the limitation over should take effect.
¶9Again, it is a plain and primary rule that a fee cannot he limited upon a fee, by deed, but may by an executory devise. And when it' appears that such was the testator’s intention it is the duty of the courts to give it operation. And that such was the testator’s intention in this case, we are no doubt fully warranted in holding* as it does appear that he only intended to devise to his wife a life estate, or the use of the. property until her death, and then in fee to the son.
¶10The decree of the court below is therefore affirmed.
¶11Decree affirmed.