Pattie et al. vs. Hall, Pattie et al., 2 B. Mon 461

Judge Ewing delivered the Opinion of the Court. The only question submitted to the Court for their decision is, whether Wm. Hall is entitled, as the survivor of his wife, to any interest in the estate of John Pattie, deceased.

John Pattie executed an awkwardly drawn instrument, which was recorded and has been acted upon as his last will and testament, which, after making a provision for equalizing those of his children who had not been advanced, with those that had, the following clause is introduced: “So that if there is any thing to divide after my death and that of my wife, Lucy’s death, that they may all share equally in the residue, if any.” A remainder in slaves and personalestalevesting in the wife during coverture vests absolutely in the husband.

Intention of testator governing principle in the construction of wills, but the provisions can-notbetranscended to impose restrictions not in ihe contemplation of the testator. Wm. Hall had intermarried with Polly Pattie, one of the daughters of John Pattie, the decedent, who survived her father, but died before her mother, Lucy Pattie.

She had by Hall three children, two of whom died in infancy, the third attained twenty-one years of age, married Blakemore and died without issue, before the death of her grand-mother, Lucy Pattie, but after the death of her mother, the wife of Hall; her husband, Blakemore, surviving her. The children of John Pattie having been all equalized, and Lucy Pattie having died, is Hall entitled to his wife’s share in the residuum of personalty, slaves and land that remained after the death of Lucy Pattie? We are clear that he is.

The residuum devised is a vested remainder in each of the children of John Pattie, that were in being at his death; and Mrs. Hall’s remainder in the land descended from her to her daughter, Mrs. Blakemore, and from her to her father, Mr. Hall, by the general law of descents, unless the descent was obstructed and prevented from passing to her father, by the exception contained in the fourth

section of the statute of 1790, (1 Slat. Laios, 562.) The exception contained in this

section only obstructs the descent to the father in cases where the child, deriving the estate from the mother, dies in infancy without issue. And as Mrs. Blakemore arrived at the age of twenty-one before her death, the exception does not apply: Duncan vs Lafferty’s administrator., (6 J. J. Marsh. 47.) As Lhe remainder in the personal estate and slaves vested in Mrs. Hall, during coverture, it became absolutely the property of. the husband, and the particular estate of Mrs.

Pattie did not affect his right: Banks’ administrator vs Marksberry, (3 Litt. 276.) It is true that the intention of the testator should be the governing rule in the construction of wills, and should be carried out, and the estate vested in those in whom he intended it to vest, so far as that intention has been expressed, orean, by fair

interpretation, be implied. But we cannot look beyond the provisons of the will, or impose limitations and restrictions on the future course of descents, not contemplated or provided for by the testator, but must leave the estate afterwards to descend and pass as the law directs. Hewitt for appellants; Morehead ($■ Reed for appellees. The decree of the Circuit Court is affirmed with costs.