The Lessee of WILLIAM BARNARD, et al vs. EZEKIEL BAILEY and MATTHEW KETTLEWOOD, 2 Harr. 56

By the Court: T. Clayton, Chief Justice. This is not merely a question of construction of a. will as to the intent of the testator, but of the application of settled principles of law. By the first clause of the will a life estate merely is given to the widow, but the second clause enlarges her estate to a fee simple, which may well be. The testator declares his meaning to be, to leave his widow his whole estate forever, and to be at her disposal at her death, except his and her blood kin. These words unquestionably give a fee simple, as well by the expressed intent of the testator as by construction of law.

There is no doubt of the intention of the testator in any part of the will. He had two purposes, both of them manifest; to give his wife the estate, and to keep it from ever going to his or her blood kin. The first and main purpose must be executed, though the other be defeated ; as it is said it will be under any construction of the will. He sought to effect this latter purpose by a mode in which he could not by the rules of law effect it, by appending it as a restriction to the estate before absolutely given to his widow. Such a restriction is inconsistent with the previous devise and is void.

This is not the case of the mere grant of a power of appointment or disposition, but of the attempt to restrain a power incident to the estate before given. Judgment for defendants.