#### John A. Trumbo, et ux *v.*John D. Magowan’s Admr., et al.

Wills — Life Estate with Remainder Interest.

A will providing “I bequeath to * * * my beloved wife * * during her life, to have and use the same to her own use, having no legitimate children,” followed by a clause “after the death of my wife, the estate she leaves, to descend to my grandaughter,” is held to create a life estate only, though the legatee provided for, died before the testator.

Same — Devise Void.

The devise to the grandaughter, by her death, being void, the remainder interest passed by the will to the testator’s brothers and sisters.

APPEAL EROM BATH CIRCUIT COURT.

October 12, 1871.

Opinion oe ti-ie Court by

Judge Peters:

The main question in tbis case is whether Mrs. Trumbo. who was the wife of John D. Magowan at the time of his death, is entitled under his will to more than a life estate in the property-devised. And *second,*if he died intestate as to any part of his personal estate, whether his widow can take a distributable, share, one half thereof, the testator having died without issue, or can she take any part of the property .undisposed of by the will. ' -

*99The following is all of the will that it is necesasry to quote to present the questions.

> “I will and bequeath to my dearly beloved wife Minerva McGowan the whole of my estate, whatever it may be at the time of my death, both real and personal, during her life, paying my just debts, to have and to use the same to her own use and benefit, having no legitimate children.

> - “I will, after the death of my wife, the estate she leaves of mine, the same shall descend to my grand-daughter, Annie Cooper, her mother being illegitimate.”

The grand-daughter had died before the will was published without issue, and the devise to her as is conceded by all is void.

The administrator with the will annexed brought this suit in equity for a construction of the will, and the direction of the chancellor in making distribution of the estate, making the widow, and the brothers and sisters of the intestate defendants.

The widow who has, since the institution of the suit, intermarried with John Trumbo, claims the whole estate absolutely under the will, and if she cannot-get that, then she claims as widow one-half thereof, it all being personal estate, because as she says, if she only takes a life estate, then the testator made no testamentary disposition of the estate in remainder, and under *section 11, chapter 80, 1 R. S., 423,*of the Revised Statutes she is entitled to the oné-half thereof. The heirs resist this claim of the widow, and assex*t that she is only entitled to a comfortable support- out of the estate during her life, and at her death the estate will pass to them.

The court below adjudged that the appellant Mrs. Trumbo was only entitled to an estate for life under the will and that if the annual profits of the estate should not be sufficient for her comfortable maintenance, then so much of the principal as should be required therefor should be appropriated to her support, and retained the caxxse on the docket, to make all proper orders and jxxdgments to effectuate that purpose, and further adjudged that the devise to the granddaughter, who was then dead, v?as void, and consequently, the estate in remainder passed to the brother and sisters who were the heirs of testatqr.

And of that judgment Mrs. Trumbo and her husband complain.

As the grand-daughter died unmarried and childless and was dead before the pxxblication of the will we concur with the circuit *100judge that tbe devise to ber was void, and tbat whatever of tbe estate tbe wife could not take passed to tbe heirs of tbe testator. And we also concur with him tbat she only took a life estate, subject to ber comfortable support. In tbe first clause of tbe will tbe estate is expressly limited to tbe wife for life, and in tbe next be attempts to dispose of tbe remainder to bis grand-daughter, of whose death be was at tbe time no doubt ignorant.

*Lacy, Apperson & B., for appellants.*

*Nesbitt & G., Beid, for appellees.*

It only remains to consider whether tbe widow is entitled to tbe one-balf of tbe remainder of the estate absolutely under *section 11, chapter 30, 1 R. S., 423.*

Under tbe will she claims and takes a life estate in tbe whole. It clearly appears in this will tbat a life estate in bis property was all tbe testator intended bis wife should have; tbat be gave ber in ’express terms — and having failed to renounce tbe provision made for ber, she can claim no more of tbe estate than tbe testator gave to ber.

Under *section 20, chapter 106, 2 R. S., 462,*it is provided tbat unless a contrary intention shall appear by tbe will, such real or personal estate, or interest therein as shall be comprised in any devise in such will shall fail, or be void, or otherwise incapable of taking effect, shall not be included in tbe residuary devise contained in such will, but shall pass as in case of intestacy. The testator did not die intestate as to tbe life estate which appellant takes, but to permit ber to take one-balf the estate as a distributable share would be allowing ber to claim under and against tbe will, which cannot be done.

Judgment *affirmed.*