#### Chesebro *vs.*Schoolcraft.

Where a testator, by his *last will*and testament, gave a life-estate in all his lands an,d tenements to his widow, and then proceeded and parcelled ont his estate by subsequent clauses tg three daughters, making the devises to *two*of them subject to the life-estate of the widow, but in. the devise, to *thojirsf*and *last*clauses of the will were not necessarily repugnant; and that consequently the widow was entitled to a *life estate,^*as. well in the, property (Jevised to the *third*daughter, as. in that devised to the others.

This was- an action of *ejectment,*tried at the Schoharie circuit in October, 1839, before the Hon. John- P. Cushman one of the eircuit- judges.

*483The suit was brought for the recovery of about thirty-five acres of land. The plaintiff is the widow, and the defendant the husband of *Phebe,*one of the *daughters*of Christopher *Ohesebro, upon the [ *634 ] true construction of whose last will and testament the rights of the parties depend. By the *first*clause of the will, the testator gives and bequeaths unto his wife, Mary Chesebro, the *rents and profits of all his lands, tenements, and real estate,*wheresoever being, in the state of New-York ; also all his personal property. He then gives to her all his right in his father’s estate, and also a lot, particularly described, and concludes this clause of the will in these words : *“*This right I give and bequeath unto my widow, Mary, *so long as she lives,*after my funeral charges *is*paid, and the rest of my debts.” *Secondly,*he gives specific lands to his daughter, *Betsey,*authorizing two of her sons to sell the same, and to dispose of the proceeds in a manner particularly directed, concluding in these words; “ This they shall have full power to do *after the 'death of the widow, Mary Chesebro.” Thirdly,*he gives certain lands to his daughter, *Phebe,*“ *after the death of my widow Mary.”*And *fourthly,*he gives certain lands to his daughter, *Phebe,*without any reference whatever to his widow. The lands devised to *Phébe,*are the premises claimed to be recovered. The judge instructed the jury, that the *plaintiff*was entitled to recover, and the jury found a verdict accordingly. The defendant, on a case made, moves for a new1 trial.

*M. T. Reynolds,*fot1 the defendant,

insisted, that when twb clauses in a will are repugnant, the *first*must be rejected, and the *last*must stand as the will of the testator. The devise to the wife of the defendant is without reservation, and consequently the plaintiff was hot entitled to recover. The limitation imposed upon the other devises in the will shows that the testator intended that *Phebe*should take a *fee*unincumbered with a life-estate.

*A. Taber,*for the plaintiff,

insisted, that the prevailing rules of construction applicable to the will in question are, that effect, if practicable, is to be given to every part of the instrument; and that the intention of the testator, to be collected from whole will, is to prevail. Upon these principles he said the judge Correctly instructed the jury, that the plaintiff *was entitled to recover. He cited *Powell on Devises,*360, *n ;*[ *635 ] 4 *Mass. R.*208 ; 2 *Plowden,*539, 541; 20 *Wendell,*53.

*By the Court,*

Nelson, C. J.

There is no necessary repugnance or contradiction between the two clauses of the will; on the contrary, full effect and operation may be given to both. The first vests the widow1 with a life-estate; the last, the remainder in the daughter.

*484It is true, in the preceding clauses containing dispositions to other children, the testator in terms limited them to take effect after the death of the widow, and, therefore, made them more specific and plain; but the one in question, when taken iri connection with the first clause, is equally so, unless we repudiate altogether an express and positive devise to the plaintiff. The only possible doubt in the case arises from the omission to add the.limitation in the devise to Phebe that is found in the others. Had it been omitted in them, it would have been clear, that neither daughter could take possession till the termination of the life-estate. Did the testator intend by the omission to discriminate between his children ? If he did, I think he 'should have been more specific, and qualified the general devise to his widow. While that stands absolute in terms, and not necessarily repugnant to any other part of the will, full effect must be given to it; and then the interest of the wife of the defendant is but a remainder to take effect in possession on the death of her mother.

New trial denied.