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countervailing considerations; rather than to restrict and constrain the judicial mind.51

Any reasonable construction should be adopted, consistent with the terms of the will, so as to dispose of the entire estate; but if no such intention is shown, the result may be partial intestacy.52 Devises by implication are recognized, but are given effect only in cases of necessity, as where the will leaves no reasonable doubt as to what the testator intended. All estates created by implication are founded upon the supposed intention of the testator. There must be something more than mere conjecture; the implication must be necessary or at least highly probable, and the whole will, taken together, must produce the conviction that the testator intended to create the estate implied.53

A gift by implication must be founded upon some expression in the will; it can not be inferred from mere si

51 Engelthaler v. Engelthaler, 196 III. 230, 63 N. E. 669; Matter of Vowers, 113 N. Y. 569, 21 N. E. 690; In re Donges' Estate, 103 Wis. 497, 74 Am. St. Rep. 885, 79 N. W. 786.

52 Minkler v. Simons, 172 III. 323, 50 N. E. 176; Craw v. Craw, 210 Ill. 246, 71 N. E. 450.

53 Wilkinson v. Adams, 1 Ves. & B. 422; Chamberlain v. Springfield, L. R., (1894) 3 Ch. 603; Hatch v. Ferguson, 57 Fed. 966; Reinhardt's Estate, 74 Cal. 365, 16 Pac. 13; Connor v. Gardner, 230 Ill. 258, 15 L. R. A. (N. S.) 73, 82 N. E. 640; Bond v. Moore, 236 Ill. 576, 19 L. R. A. (N. S.) 540. 86 N. E. 386; Young v. Quimby, 98 Me. 167, 56 Atl. 656; Ridgely v. Bond, 18 Md.

433; Welsh v. Gist, 101 Md. 606, 61 Atl. 665; Ball v. Phelan, 94 Miss. 293, 23 L. R. A. (N. S.) 895, 49 So. 956; Barlow v. Barnard, 51 N. J. Eq. 620, 28 Atl. 597; Brown v. Quintard, 177 N. Y. 75, 69 N. E. 225; Shaner v. Wilson, 207 Pa. St. 550, 56 Atl. 1086; Sutherland v. Sydnor, 84 Va. 880, 6 S. E. 480; Coberly v. Earle, 60 W. Va. 295, 54 S. E. 336.

"In construing a will, conjecture must not be taken for implication; but necessary implication means, not natural necessity, but so strong a probability of inten tion that an intention contrary to that which is imputed to the tes tator can not be supposed."Coryton v. Helyar, 2 Cox 340.

54

lence. The courts will liberally construe the words of the testator so as to carry out his intention, but they can not introduce words in order to make the provisions of a will more reasonable or to supply a gift not found in the will.55 Nor is a court justified in declaring a devise by implication if such construction violates public policy or the settled rules of law.56 And if the intention is discovered to accomplish two purposes so inconsistent that both can not stand, there must be a failure as to one of them.57

§ 966. The Same Subject: Exceptions.

Although a devise in general terms, not indicating the quantity of the estate conveyed, will be construed to confer a fee where debts or legacies are charged upon the devisee, an estate expressly devised for life can not be thus enlarged by implication;58 nor where a testamentary gift is expressly limited to the donee for life, will a superadded power to sell and appropriate the proceeds enlarge the interest into an absolute estate.59 Nor is a devise clearly expressed to be for life enlarged to a fee by a

54 In re Reinhardt, 74 Cal. 365, 16 Pac. 13; Bond v. Moore, 236 Ill. 576, 19 L. R. A. (N. S.) 540, 86 N. E. 386; In re Nebinger's Estate, 185 Pa. St. 399, 39 Atl. 1049; O'Hearn v. O'Hearn, 114 Wis. 428, 58 L. R. A. 105, 90 N. W. 450.

55 Ranelagh V. Ranelagh, 12 Beav. 200; Neighbour v. Thurlow, 28 Beav. 33; Seymour v. Kilbee, L. R. 3 Ir. 33.

56 Ball v. Phelan, 94 Miss. 293, 23 L. R. A. (N. S.) 895, 49 So. 956.

57 Ramsdell v. Ramsdell, 21 Me. 288; Bradley v. Warren, 104 Me. 423, 72 Atl. 173.

58 Gernet v. Lynn, 31 Pa. St. 94; Moore v. Dimond, 5 R. I. 121. See § 925.

A charge upon a life tenant to provide for others "while they remain single women in said house," confers upon the latter an interest pur autre vie only.-Loring v. Arnold, 15 R. I. 428, 8 Atl. 335.

59 Russell v. Eubanks, 84 Mo. 82; Tompkins v. Fanton, 3 Demarest (N. Y.) 4; Rhode Island Hospital Trust Co. v. Commercial Nat. Bank, 14 R. I. 625.

See § 973.

As to a devise coupled with a

power to sell or to appoint by deed or will;60 but a deed made by such devisee, purporting to convey the fee, may take effect at his death, although he has no power to alien during life.62 A devise of money and real estate for life, with power to dispose of enough for the devisee's support, confers only a life estate with a conditional power of disposition.63 Neither will a gift over of "what may remain" enlarge the life estate by implication.64 Nor will the absence of a gift over imply a gift of a larger estate where the devise is clearly for life.65

§ 967. Creation of Life Estate by Implication.

A life estate may be created without the use of direct words, but by implication from the various provisions of the will.66 Words, expressions or clauses, inferential only in import, disposing in general or indefinite terms of real or personal property, with a limitation over after the death of the first taker, are sufficient to create in the first taker an estate for life.57 Where the testator directs that certain land shall not be sold until his wife's death,

power of disposition, see §§ 927929.

60 Fairman v. Beal, 14 Ill. 244; Andrews v. Brumfield, 32 Miss. 107; Dean v. Nunnally, 36 Miss. 358; Troy v. Troy, 60 N. C. 624.

61 Pulliam v. Christy, 19 Ill. 331. 62 Christy v. Ogle's Exrs., 33 Ill. 295.

63 And the real estate can not be sold under the power so long as any of the money is available for the support of the devisee.-Morford v. Dieffenbacker, 54 Mich. 593, 20 N. W. 600.

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But see Shaw v. Hussey, 41 Me. 495.

See § 930.

65 In re Evans' Appeal, 51 Conn. 435.

See § 926.

66 Gibson v. Brown, (Ind. App.) 110 N. E. 716; Burnett v. Burnett, 244 Mo. 491, 148 S. W. 872; Donohue v. McNichol, 61 Pa. St. 73.

67 Glore v. Scroggins, 124 Ga. 922, 53 S. E. 690; Hill v. Gianelli, 221 III. 286, 112 Am. St. Rep. 182, 77 N. E. 458; Rice v. Moyer, 97 Iowa 96, 66 N. W. 94; Van Driele v. Kotvis, 135 Mich. 181, 97 N. W. 700; Armor v. Frey, 226 Mo. 646,

and that notes due him shall be collected and the proceeds remain in her hands until her demise, a life estate is created in the widow in both the land and the proceeds of the notes, by necessary implication.68

Although the will does not in terms specify the particular estate which is to pass, yet if property be given to one with the proviso that it is to be sold at the beneficiary's death and the proceeds divided among named heirs, a life estate only is given."9

§ 968. The Same Subject: Devise to A Upon Death of B.

A devise to A upon the death of B is by implication a devise of a life estate to B, otherwise there would be intestacy until B's death. A direction for the division of

126 S. W. 483; Carson v. Carson, 115 Tenn. 37, 88 S. W. 175.

68 Eaton v. Broaderick, 101 Miss. 26, 57 So. 298.

See, also, Donohue v. McNichol, 61 Pa. St. 73.

If a will devise the same property to two different persons, to the first with words of inheritance, and to the second without words denoting the quantity of the estate, the latter gift will not destroy the former, but will be construed as a life estate only, with reversion to the heirs of the first devisee.-Jones v. Doe, 1 Scam. (2 Ill.) 276.

"I bequeath to my son-in-law J. McM. the lot of ground in Irwin's place, and that J. McM. will have to pay $150 still yet to pay on said lot, and said lot is to be given to Wm. McM. as the first son of the above," is a devise of a life estate to J. McM. charged

with the payment of $150, with remainder to Wm. McM. in fee. The word "bequeath" implies an intention to grant an interest to J. McM., and a life estate is the least interest which will satisfy the terms employed.-McMullin v. Leslie, 29 Pa. St. 314.

Compare: The fact that the testator directs that other legacies are not payable until after the death of his widow except with her consent, or that her legacy is not given in lieu of dower, is not sufficient to create an estate by implication. McCoury's Exrs. v. Leek, 14 N. J. Eq. 70.

69 Canaday v. Baysinger, 170 Iowa 414, 152 N. W. 562.

70 Blackwell v. Bull, 1 Keen 176; Smith's Trusts, L. R. 1 Eq. 79; Blake's Trusts, L. R. 3 Eq. 799; Masterson v. Townshend, 123 N. Y. 458, 10 L. R. A. 816, 25 N. E. 928.

2 Bl. Com. *381 gives as an exam

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property among the children of the testator after the death of his widow will confer upon her by implication a life estate." This rule is generally applied where the gift after B's death is to those who would succeed to the testator's estate in the event of intestacy, it being presumed he did not intend them to take the property sooner than the will provides. Should it be held that B did not take a life estate, then partial intestacy would result and the beneficiaries whose enjoyment of the gift is postponed by the terms of the will, would be immediately benefited. This being contrary to the expression of the will, B is held to take a life estate. But if those who take after B's death are strangers, the same reasoning does not apply since. they can receive no benefit during the life of B. In such a case it has been held that B does not take a life estate, but partial intestacy results by which the heirs are fa

vored.72

§ 969. The Same Subject: Gift Over If First Taker “Die Without Issue,"

There is an apparent irreconcilable conflict in the decisions as to the interest taken by the various persons named, either individually or as a class, where the devise provides for a gift over in the event the first taker shall "die without issue." Herein we will deal with those cases

ple, "as where a man devises land
to his heir at law, after the death
of his wife: here, though no es-
tate is given to the wife in express
terms, yet she shall have an estate
for life by implication; for the in-
tent of the testator is clearly to
postpone the heir till after her
death, and if she does not take it,
nobody else can."-Quoted and ap-

plied in Nicholson v. Drennan, 35 S. C. 333, 14 S. E. 719, and McCoury's Exrs. v. Leek, 14 N. J. Eq. 70.

71 Kelly v. Stinson, 8 Blackf. (Ind.) 387.

72 Ralph v. Carrick, L. R. 11 Ch. Div. 873; In re Springfield, (1894) 3 Ch. 603.

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