John Jones, Thomas Jones, and William Jones, appellants v. John Doe ex dem. Betsey Bramblet and Nancy Bramblet, appellees, 1 Scam. 276

Smith, Justice, delivered the opinion of the Court: This was an action of ejectment to recover the possession of the S. E. qr. of

Section 14, in T. 8, S. R. 6 East. The lessors of the plaintiff claimed the land under the will of John Brown, who devised the lands named in his said will, as follows, viz: “ First, I give and bequeath to my well beloved wife, Sarah, the following quarter

section of land, viz: The South East quarter of

Section Eleven, in Township 8, South of Range 6 East. Also the South East quarter of

Section Fourteen, in Township 8, South of Range 4 East, in the lands sold at Shawneetown, for her to have the benefit and profit of the farms and improvements that are on both quarter sections, during her natural life; and at her death to descend to her heirs, except the South East quarter of

Section Fourteen, which is given equally to two infant children that are now living with us, named and called Nancy Bramblet and Betsey Bramblet, daughters of Benjamin and Polly Bramblet. This land is given to the aforesaid Nancy and Betsey, if they should continue to live with my wife, and are bound to her and continue to live with her until married. And further, should both or either of them marry with my wife’s consent, they are authorized to settle and improve on the aforesaid South East quarter of

Section Fourteen; but my wife is to have the benefit of the present improvements during her natural life.” The defendant claimed title under the recited clause in the will, and this portion of the will is all that the respective parties assert their claims under. The jury found a verdict for the lessors of the plaintiff. The defendants in the Court below, assign for error the following causes : 1. That the Circuit Court admitted improper parol testimony to go to the jury, on the part of the plaintiff’s lessors. 2. That it rejected proper parol evidence, offered on the part of the defendants. 3.

That the verdict of the jury was contrary to law and the evidence. The points made will be considered in the order they are stated. It appears from the evidence embodied in the bill of exceptions, that the will of the testator was executed on the 1st of March, 1830; and that he died on the 12th day of the same month; that his wife, Sarah Brown, was feeble and infirm, and died in May, 1832.

That the lessors of the plaintiff offered in evidence the declaration of Sarah Brown, as to her inability to receive and take charge of them, and did not desire to have them; and of her removal to Kentucky without them, where she died. That the lessors were at the time infants of tender age, not more than 8 or 9 years old. This is the substance of' the testimony objected to under the first point as inadmissible.

There can be no doubt that the testimony was proper to show that that portion of the will which made the estate, created in the lessors of the plaintiff, depend on the condition of their living with Sarah Brown, and being bound to her, had.been dispensed with by Sarah Brown; and therefore the performance of those acts as conditions precedent to their taking the estate, was by no means necessary to the perfection of such estate.

On the second point made, the offer to give in evidence the declaration and acts of Nancy Brown, that the children should not live with, or be bound to, Sarah Brown, was wholly irrelevant, being the declaration and acts of a third person, and wás properly rejected. The last point made necessarily involves the construction-of the will of the testator, and upon that construction must depend the tenableness of the objections, that the verdict and recovery of the lessors of the plaintiff, is not justified by the evidence.

It is admitted that the language of the will is by no means free from obscurity, owing to its peculiar phraseology, and the seeming incongruities of its several parts; still it is a settled judicial maxim, that when the court can fairly ascertain the real intention of the testator, and give effect to the several parts of the will, without rendering any component

part inoperative, it is bound so to do. It is believed that in the present case, that maxim can be justly applied. If there should be an adherence to the literal

interpretation of the first devise in the will, it is evident that the testator created an estate for life in both the quarter sections described, in favor of his wife, with a remainder over to her heirs; but after having done so, he then excepts

Section 14, being one of the two named, from the operation of this devise, and devises it to the lessors of the plaintiff, upon the condition, “ that they should continue to live with his wife, and be bound to her, and live with her until they are married.” Now this second devise of the same land evidently operated on and destroyed the first, as it relates to

Section 14, and it gave this

Section in presentí upon a condition which might, or might not, be'performed. The performance would first depend on the consent of his wife, for unless she consented to the lessors’ residing with her, and being bound to her, it is 'evident that they could not perform either part of the condition.

Doubtless the testator was, desirous that they, being then of tender age, should continue undgr the care and protection of his wife; and to effectuate that object more certainly, he designated the mode he supposed most likely to accomplish it; but it is seen that both the living and the indenturing of the lessors, was prevented by the voluntary act of the wife, for whose benefit it may be supposed, the condition was also in some measure originally created; and the more so, as when they became of more mature age, the testator must have supposed that they would be of -great service to her.

The accomplishment of this object, is, however, eventually defeated by the death of Sarah Brown, the wife of the testator, and thereupon the condition annexed to the creation of the estate, in the lessors of the plaintiff, became an impossible condition to be performed, and consequently the' lessors take the estate given, without the condition thus rendered nugatory. That estate, however, is but a life estate, to take effect on the death of testator’s wife, there being no words of inheritance or perpetuity contained in the devise, and such words being indispensable to make a fee.

The verdict then was neither against law nor evidence. The judgment of the Circuit Court is to be affirmed with costs. Judgment affirmed.