Ethington J. Merritt and Elizabeth, his wife, Appellants, vs. Bartholomew Brantly et al., Appellees, 8 Fla. 226

BALTZELL, C. J., delivered the opinion of the Court.

This is a bill in the nature of a quia timet, filed by the heirs of John Brantly, asserting an interest in his estate and claiming that it be preserved for their benefit. ■ Whether they have an interest depends upon the construction to be given to his will, which, excluding the formal parts, for the payment of debts and the appointment of executors, is in these terms: “I give and bequeath unto my dearly beloved wife, Elizabeth Brantly, her heirs and assigns, all the property, goods, chattels, rights and credits of which I may be possessed for and during her natural life, except as hereafter provided.” “I give and bequeath to my relative and friend, Dolphin Drew Bawls, the sum of one thousand dollars, to be paid out of my estate after rrvy wife Elizabeth shall hare departed this life or again marries.” There is another bequest, giving the same sum to his nephew William B.

Brantly, in the precise language of the preceding one. If Brantly gave his wife a life estate only in the property, leaving the fee or absolute interest undisposed of, in which event his heirs at law would take, then they may maintain their suit, and the decision of the Court below in their favor was right.

If this be the fair import of the will, it must be in the clauses quoted, which are not very obscure, and may, perhaps, be better understood by rejecting expletives and general expressions, so as to throw the three clauses into one thus: I give to my wife, her heirs and assigns, all the property of which I may be possessed for and during her natu/ral life, except that I give to my relative Rawls and my nephew Brantly the sum of $1,000 each, to be paid after my wife shall have departed this life or again ma/rries. ■ There can be but little doubt, we think, that the testator designed to dispose of his entire estate, so as to leave no residuum; that he gave it all to his wife and his two relatives ; that the bequest to his wife was of the absolute interest in the personalty — of the fee in the realty, subject to the payment of these two sums.

He “ gives all his property” “to his wife, her heirs and assigns,” except $2,000. The only objection to this construction arises from the words “ during her life ” in the bequest to the wife, about which there can be but little difficulty, as their force and effect in such connection has been long since declared, by high judicial authority, in the case of Doe ex Dem., Cotten vs.

Stenlake, where the devise was to one and her heirs during their lives, in which the Court said, “ the words during their lives, after the devise to the daughter- and her heirs, are merely the expressions of a man ignorant of describing how the parties whom he meant to benefit would enjoy the property; for, whatever estate of inheritance the heirs of his daughter might take, they could in fact only enjoy the benefit of it for their lives.” 12 East, 515. This ruling has never been questioned and has our entire approval.

If these words have no force in such a case, what is due to them in one like the present, when attached to and connected with expressions of more decided import, giving a different meaning to them and restricting and qualifying .their usual sense and acceptation? “Eor and during natural life ” are attached to the bequests for the payment to. the pephew and relative and qualified by them.

It is seen that the payment of the $2,000 is made to depend upon the marriage of the wife or her death, and she has since intermarried with defendant Merritt, so that the contingency has happened upon which these legatees are entitled to their portion.

If such a result follows this act* would not the other follow by the construction contended for, to wit: the vesting the property absolutely in the heirs* for the marriage and death of the wife are the two events on which a change is to take place in her interest, and these are inseperable in their connection, yet no such position is assumed by the bill or in argument before us. It is not, then, that the property is to go to his heirs on her death or marriage, but a payment of $2,000 to be made on the occurrence of each event.

But, aside from all authority and precedent and from this view, where is the pretence foi saying that by this Will these complainants are entitled to all the property of this estate in absolute right, except an uncertain life interest of the wife and the payment of $2,000 to two. other relatives ? There is none, not the slightest. If such a result were attained* it would be, not through the will and in compliance with its clear and manifest design, but in direct opposition tiP it.

To produce such result, the testator should have said, (directly the reverse of what he has said,) I do not give to my wife all my property, nor to her heirs and assigns, but I give to my brothers and sisters all my property, to their heirs and assigns, subject to a life estate for my wife. This is what he would have said, if he designed making a will such as they claim he has made, to give them the property. So far from saying this, he declares expressly that others are, and they are not, to participate in his estate — not to be the recipients of his bounty.

Should they succeed in obtaining it, then, as we think, it will be not through any will of his, but through a mistake of his scrivener in the nse of words contravening his expressed wishes. But we really have not been able to perceive, in the use of these words, contrariety or' opposition or conflict. There is- but a mere expression of a wish that the wife shall have the property for her life' and enjoy it during that time. They are in harmony with the larger estate interest.

The’ estate in fee includes the life estate and all minor interests’, a term for years in reversion or remainder, and it is inconceivable how the mere mention of any of these in connection with the fee should reduce the larger estate to the dimensions of the smaller. If a different estate or interest in some one else had been created — something to divest the interest already clearly vested in the wife — there might have been ground for contest; but there is nothing of the kind in this will. We then think the Court below erred in decreeing the defendants to answer and overruling their demurrer.

The decree ofthe Circuit Court will be reversed and set aside, and the cause remanded, with- directions to dismiss-the complainants’ bill.