#### Silas Ireland, adm’r v. Sarah Parmenter.

*Construction of wills*— Jtesiduarg *devise.*

A man devised certain lands to his wife and in a further provision of his will devised the same lands to his children after the decease of his wife. Another clause devised them to iris wife “ during her natural life.” He then disposed of “all the residue of [his] estate, real, personal and mixed, * * * to have and to hold the same to her use and benefit, during her natural life, and then to be divided equally between [his children] or their heirs.” *Held*that after the wife’s death whatever remained passed immediately to the children and not-to the wife’s administrator.

Where a will disposes of real and personal property in the same terms tlio testator’s language cannot receive one construction for one class • of property and another for the other unless the context requires it to-be differently construed.

A will must be construed as a whole and its provisions harmonized to give effect to the testator’s evident intent.

Error to Berrien.

Submitted June 15.

Decided June 21.

Trover. Defendant brings error.

Reversed.

*Glapp <& Fyfe*for appellant.

Provisions in a will disposing of a mixed fund of realty and personalty should be construed alike: *Toms v. Williams*41 Mich. 566; this will transferred the property to the children subject to the wife’s use while she lived: *Stevens v. Winship*1 Pick. 318; *Dole v. Johnson*3 Allen 368; *Brant v. Virginia Coal & Iron Co.*93 U. S. 326.

*632*H. H. Goolidge*and *O. W. Goolidge*for appellee.

The ■will conveyed to the wife absolutely, whatever personal property remained at the time of testator’s death: *Jones v. Jones*25 Mich. 401; *Harris v. Knapp*21 Pick. 412; *Jackson v. Robins*16 Johns. 537; and the personalty itself and not merely its income having been given in specie for the wife’s use and benefit, a limitation over was void: *Hale v. Marsh*100 Mass. 468; *Jackson v. Bull*10 Johns. 148; *Ide v. Ide*5 Mass. 500; *McLean v. MacDonald*2 Barb. 534.

Marston, J.

The plaintiff as administrator of the estate ■of Betsey Schmeele deceased brought an action of trover to recover the value of certain personal property, a part of which plaintiff claimed under the will of her husband, and all of which, it was alleged in the declaration, the defendant ■converted during the life-time of the deceased.

The defendant was one of the heirs at law of Samuel Schmeele, and claimed title to this property as such and also by gift.

A.n important question in this case arises as to what interest Betsey Schmeele acquired in and to the personal property under the will of her husband.

The will attempts to dispose of both real and personal property, and the language of the- testator cannot receive one construction as applied to the real estate, and another and different one as to the personalty, unless there is something in the context clearly calling for a different rule.

The will evidently was drafted by some person not familiar with such business, and some of the provisions relating to the real estate, if standing alone, would lead to a different conclusion than would others. *We*are however to take the entire instrument and harmonize it and give effect to the evident intent of the testator.

He first gives, devises and bequeaths to his wife Betsey two certain descriptions of land with all the appurtenances and fixtures belonging thereto. Next follow provisions devising and bequeathing the same lands to his son Lewis and daughter Sarah, “ from and after the decease of my wife Bet- *633■ sey.” Then follows another clause, giving, devising and bequeathing to his wife Betsey, the same lands, *“*during her natural life.” The will then proceeds as follows: *“*I give • and bequeath to my wife Betsey all the residue of my estate, real, personal and mixed, of which I shall die seized and pos- . sessed, or to which I shall be entitled at the time of my decease, to have and to hold the same to her own use and benefit, • during her natural life, and then to be divided equally between my son and daughter Lewis and Sarah or their heirs.”

Now whatever right this may have given to Betsey • Schmeele to dispose of the personal property during her .life-time, and which we need not at present determine, it is ■very clear, that whatever remained at her death, did not pass to her administrator, but under this will at once passed to the testator’s son and daughter, and for all such property in itheir possession, Betsey Schmeele’s administrator could not maintain this action.

The provisions in this will are very different from those in either of the cases referred to by counsel, and the question here raised comes up in a very different manner. See *Jones v. Jones*25 Mich. 401, and *Proctor v. Robinson*35 Mich. 288. In each of these cases the language of the will left no doubt as to the title which the testator intended to .give to his wife with the full and absolute power of disposition; besides, the question arose during the life-time •of the wife, and the important point related to the rigid •and power o± the wife over the property devised during her life-time.

In this case the real estate is given during the term of her ■natural life, and then it is to be equally divided, and the same disposition is made of the personalty. It cannot be . successfully contended that an absolute title to the real estate was devised or intended to be, but that, in accordance with ■other provisions, at her death it was to go to the testator’s ■children, and the same language, when applied in the same interest to the personalty, cannot be held to give the present .administrator any right to maintain this action, whatever *634Betsey Sclimeele’s rights thereto may have been during her life-time.

The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.