The will of B. G. contained the following clause:
"Also I give to my wife Elizabeth Goodwin all my personal estate
whatsoever and wheresoever and of what nature, kind, and quality
soever, after payment of my debts, legacies and funeral expenses,
which personal estate I give and bequeath unto my said wife,
Elizabeth Goodwin, to and for her own use and disposal absolutely,
the remainder after her decease to be for the use of the"
said Jesse Goodwin,
the son of the testator. Jesse Goodwin took a vested remainder
is the personal estate, which came into possession after the death
of Elizabeth Goodwin.
In this case it is impossible to mistake the intent. The
testator unquestionably intended to make a present provision for
his wife, and a future provision for his son. The intention can be
defeated only by expunging or rendering totally inoperative the
last clause of the will. In doing so, a long series of opinions,
making the intention of the testator the polar star to guide in the
construction of wills, must be disregarded, because we find words
which indicate an intention to permit the first taker to use part
of the estate bequeathed.
The first and great rule in the exposition of wills, to which
all rules must bend, is that the intention of the testator
expressed in his will shall prevail, provided it be consistent with
the rules of law. This principle is generally asserted in the
construction of every testamentary disposition. It is emphatically
the will of the person who makes it, and is defined to be "the
legal declaration of a man's intentions, which he wills to be
performed after his death." These intentions are to be collected
from his words, and ought to be carried into effect if they be
consistent with law.
In the construction of ambiguous expressions, the situation of
the parties may very properly be taken into view. The ties which
connect the testator with his legatees, the affection subsisting
between them, the motives which may reasonably be supposed to
operate with him, and to influence him in the disposition of his
property, are all entitled to consideration in expounding doubtful
words, and ascertaining the meaning in which the testator used
them.
The rule that a remainder may be limited after a life estate in
personal property is as well settled as any other principle of our
law. The attempt to create such limitation is not opposed by the
policy of the law or by any of its rules. If the intention to
create such limitation is manifested in a will, the courts will
sustain it.
It is stated in many cases that where there are two intents
inconsistent with each other, that which is primary will control
that which is secondary.
Notwithstanding the reasonableness and good sense of the general
rule that the intention shall prevail, it has been sometimes
disregarded. If the testator attempts to effect that which the law
forbids his will must yield to the rules of law, but courts have
sometimes gone further. The construction put upon words in one will
has been supposed to furnish a rule for construing the same words
in other wills, and thereby to furnish some settled and fixed rules
of construction, which ought to be respected. We cannot say this
principle ought to be totally disregarded, but it should never be
carried so far as to defeat the plain intent, if that intent may be
carried into execution without violating the rules of law. It has
been said truly
"that cases on wills may guide
Page 31 U. S. 69
us to general rules of construction, but unless a case cited be
in every respect directly in point, and agree in every
circumstance, it will have little or no weight with the court, who
always look upon the intention of the testator as the polar star to
direct them in the construction of wills."
In the circuit court, John Smith T. instituted an action of
trover against Robert Bell for the recovery of the value of certain
negroes named and described in the declaration. The defendant
pleaded not guilty, upon which plea issue was joined.
The facts of the case were agreed by the parties, and the
plaintiff moved the court for judgment for $2,615.62.5, the agreed
value of the negroes; if the court should be of opinion that the
plaintiff was entitled to recover.
Upon the case agreed, the following questions arose upon which
the judges of the court were divided, and the division was
certified to this Court: whether by the will of Britain B. Goodwin,
Elizabeth Goodwin had an absolute title to the personal estate of
Britain B. Goodwin, or only a life estate, and also whether Jesse
Goodwin, the son of Britain B. Goodwin, by said will, had a vested
remainder that would come into possession on the death of said
Elizabeth; or was said remainder void.
The facts of the case agreed were as follow:
That Britain B. Goodwin, a citizen of the State of Tennessee and
resident in the District of East Tennessee did, on 17 October in
the year of our Lord 1810, make and execute his last will and
testament in the words and figures following, to-wit:
"In the name of God, amen. I, Britain B. Goodwin, of the State
of Tennessee and County of Roane, yeoman, being mindful of my
mortality, do, this 17 October in the year of our Lord 1810, and
thirty-fifth year of independence of the United States of America,
do make and publish this my last will and testament, in manner
following:"
"First, I desire to be decently buried in the place where I
shall happen to die; also, I give and bequeath
Page 31 U. S. 70
unto my son, Jesse Goodwin, my young sorrel gelding and one
feather bed, to be delivered to him by my executrix after my
decease; also I give to my wife, Elizabeth Goodwin, all my personal
estate whatsoever and wheresover and of what nature, kind, and
quality soever, after payment of my debts, legacies, and funeral
expenses; which personal estate, I give and bequeath unto my said
wife, Elizabeth Goodwin, to and for her own use and benefit and
disposal absolutely; the remainder of said estate, after her
decease, to be for the use of the said Jesse Goodwin, and I do
hereby constitute and appoint my said wife Elizabeth Goodwin sole
executrix of this my last will and testament."
"In witness whereof, I have hereunto set my hand and seal, the
day and year above written."
"his "
"BRITAIN B. + GOODWIN [L.S.]"
"mark"
The foregoing will is duly witnessed, proved, and recorded.
"It is further agreed that said Britain B. Goodwin departed this
life in the month of October, 1811; that his wife, the said
Elizabeth Goodwin, named in the foregoing will, took into her
possession all the personal estate of said Britain B. Goodwin,
under the bequest in said will to her, and retained the same until
the month of November in the year of our Lord 1813, when she
intermarried with Robert Bell, the defendant in this suit; that she
and Robert Bell kept the possession of said personal estate till
the latter part of the year 1826, when the said Elizabeth Goodwin
died. Said Robert Bell has kept the possession of said personal
estate ever since, claiming the same as his own, under the bequest
in said will to his said wife Elizabeth; among which are the
following named negroes, to-wit, Lucy, aged about forty-five; Jack,
aged about twenty-six; Sophia, aged about twenty-four; Harry, aged
about twenty-one; Alexander, aged about nineteen, and Ned, aged
about thirteen, which said negroes are admitted to be of the value
of $2,325; which sum, with interest thereon from the 1st day of
September, 1827, at which time said negroes were demanded of
defendant by plaintiff's agent, and it is agreed the said sum and
interest would amount
Page 31 U. S. 71
to $2,615.62.5, which last sum is sought by plaintiff to be
recovered of defendant in this action of trover. It is further
agreed that said Jesse Goodwin, the person named in the will of
Britain B. Goodwin, did in due form execute to John Smith T., the
plaintiff, the following bill of sale, to-wit:"
" I have sold to John Smith T. all my right, title, interest,
and claim to the estate of my father, Britain B. Goodwin, and I do
hereby authorize the said John Smith T. to bring whatever suit or
suits may be necessary to recover all of the property I am or may
be entitled to from the said estate; to act in all cases as he, the
said John, may think proper, and to convert the property he may
recover to his own proper use, and give any receipts or
acquittances in my name which may be necessary, hereby vesting the
before named John Smith T. with all the power I could use in my own
proper person, were I personally present, for value received."
" Witness my hand and seal this 31 Marc, 1815."
"JESSE GOODWIN [L.S.]"
Said bill of sale has been duly proved and registered, in
pursuance of the statute of the State of Tennessee in such cases
made and provided.
Page 31 U. S. 74
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This case is adjourned to this Court from the Court of the
United States for the Seventh Circuit and District of East
Tennessee, on a point on which the judges of that court were
divided in opinion.
The plaintiff brought an action of trover and conversion against
the defendant for several slaves in his declaration mentioned. He
claimed the slaves under the following clause in the will of
Britain B. Goodwin:
"Also, I give to my wife, Elizabeth Goodwin, all my personal
estate whatsoever and wheresoever and of what nature, kind, and
quality soever, after payment of my debts, legacies, and funeral
expenses, which personal estate I give and bequeath unto my said
wife, Elizabeth Goodwin, to and for her own use and benefit, and
disposal absolutely, the remainder of the said estate after her
decease, to be for the use of the said Jesse Goodwin. "
Page 31 U. S. 75
Elizabeth Goodwin took the estate of the testator into her
possession, and intermarried with Robert Bell, the defendant. After
which the said Jesse Goodwin sold his interest therein to the
plaintiff, who, after the death of Elizabeth, instituted this suit.
Upon the trial, the following questions occurred on which the
judges were divided in opinion:
"Whether, by the will of said Britain B. Goodwin, said Elizabeth
Goodwin had an absolute title to the personal estate of said
Britain B. Goodwin, or only a life estate, and also whether said
Jesse Goodwin, by said will, had a vested remainder that would come
into possession on the death of said Elizabeth, or was said
remainder void?"
The first and great rule in the exposition of wills, to which
all other rules must bend, is that the intention of the testator
expressed in his will shall prevail, provided it be consistent with
the rules of law. Doug. 322; 1 Black. 672. This principle is
generally asserted in the construction of every testamentary
disposition. It is emphatically the will of the person who makes
it, and is defined to be "the legal declaration of a man's
intentions, which he wills to be performed after his death." 2
Black.Com. 499. These intentions are to be collected from his
words, and ought to be carried into effect if they be consistent
with law.
In the construction of ambiguous expression, the situation of
the parties may very properly be taken into view. The ties which
connect the testator with his legatees, the affection subsisting
between them, the motives which may reasonably be supposed to
operate with him, and to influence him in the disposition of his
property, are all entitle to consideration in expounding doubtful
words, and ascertaining the meaning in which the testator used
them.
In the will under consideration, but two persons are mentioned
-- a wife and a son. The testator attempts in express words to make
a provision for both out of the same property. The provision for
the wife is immediate, that for the son is to take effect after her
death. The words of the will make both provisions, but it is
doubted whether both can have effect. In the first member of the
sentence he says,
"I give to my wife, Elizabeth Goodwin, all my personal estate
whatsoever and wheresoever and of what nature, kind, and quality
soever,
Page 31 U. S. 76
after payment of my debts, legacies, and funeral expenses, which
personal estate I give and bequeath unto my said wife, Elizabeth
Goodwin, to and for her own use and benefit and disposal
absolutely."
It must be admitted that words could not have been employed
which would be better fitted to give the whole personal estate
absolutely to the wife, or which would more clearly express that
intention. But the testator proceeds: "the remainder of said
estate, after her decease, to be for the use of the said Jesse
Goodwin." Jesse Goodwin was his son.
These words give the remainder of the estate, after his wife's
decease, to the son with as much clearness as the preceding words
give the whole estate to his wife. They manifest the intention of
the testator to make a future provision for his son as clearly as
the first part of the bequest manifests his intention to make an
immediate provision for his wife. If the first bequest is to take
effect according to the obvious import of the words taken alone,
the last is expunged from the will. The operation of the whole
clause will be precisely the same as if the last member of the
sentence were stricken out; yet both clauses are equally the words
of the testator, are equally binding, and equally claim the
attention of those who may construe the will. We are no more at
liberty to disregard the last member of the sentence than the
first. No rule is better settled than that the whole will is to be
taken together, and is to be so construed as to give effect, if it
be possible, to the whole. Either the last member of the sentence
must be totally rejected or it must influence the construction of
the first so as to restrain the natural meaning of its words;
either the bequest to the son must be stricken out or it must limit
the bequest to the wife and confine it to her life. The limitation
in remainder shows that, in the opinion of the testator, the
previous words had given only an estate for life. This was the
sense in which he used them.
It is impossible to read the will without perceiving a clear
intention to give the personal estate to the son after the death of
his mother. "The remainder of the said estate, after her decease,
to be for the use of the said Jesse Goodwin." Had the testator been
asked whether he intended to give anything
Page 31 U. S. 77
by this bequest to his son, the words of the clause would have
answered the question in as plain terms as our language
affords.
If we look to the situation of the parties, to the motives which
might naturally operate on the testator, to the whole
circumstances, so far as they appear, in the case; we find every
reason for supporting the intention, which the words, giving effect
to all, of themselves import.
The only two objects of the testator's bounty were his wife and
his son. Both must have been dear to him. The will furnishes no
indication of his possessing any land. His personal estate was
probably small, too small to be divided. It appears to have
consisted of a negro woman and four others, probably her children.
Their relative ages, which are stated in the plaintiff's
declaration, would indicate that the woman was the mother of the
other four. A sixth is sued for, but he was not born at the death
of the testator. The value of the other articles, which constituted
his personal estate, is not mentioned, but it was probably
inconsiderable. Farmers and planters, having no real estate, and
only five slaves -- a woman and four children, have rarely much
personal estate in addition to their slaves. The testator was not
in a condition to make any present provision for an only child,
without lessening that he wished to make for his wife. He therefore
gives to his son only a horse and one feather bed. The residue is
given to his wife.
What feelings, what wishes might be supposed to actuate a
husband and a father, having so little to bestow on a wife and
child he was about to leave behind him? His affections would prompt
him to give something to both. He could not be insensible to the
claims of either. But if his property would not, in his opinion,
bear immediate division, the only practicable mode of accomplishing
his object, would be to give a present interest to one, and a
future interest to the other. All his feelings would prompt him to
make, as far as was in his power, a comfortable provision for his
wife during her life, and for his child after her decease. This he
has attempted to do. No principle in our nature could prompt him to
give his property to the future husband of his wife, to the
exclusion of his only child. Every consideration, then, suggested
by the relation of the parties and the circumstances of the case
comes
Page 31 U. S. 78
in aid of that construction which would give effect to the last
as well as first clause in the will, which would support the
bequest of the remainder to the son, as well as the bequest to the
wife. It is not possible to doubt that this was the intention of
the testator.
Is this intention controverted by any positive rule of law? Has
the testator attempted to do that which the law forbids?
The rule that a remainder may be limited, after a life estate in
personal property, is as well settled as any other principle of our
law. The attempt to create such limitation is not opposed by the
policy of the law or by any of its rules. If the intention to
create such limitation is manifested in a will, the courts will
sustain it. Some other rule of law then must bear on the case, or
the intention will prevail.
It is stated in many cases that where there are two intents
inconsistent with each other, that which is primary will control
that which is secondary; but the intent to provide for the wife
during life is not inconsistent with the intent to provide for the
son, by giving him the same property after her decease. The two
intents stand very well together, and are consistent, as well with
the probable intention as with the words of the testator. The
intention to give the personal estate absolutely to the wife is, it
is true, inconsistent with the intention to give it after her
decease to his son; but which of them is the primary intent? which
ought to control the other? If we are governed by the words, if we
endeavor to give full effect to them all, or if we are influenced
by the relation of the parties, and the motives which probably
governed in making the will, no such inconsistent intentions exist;
but if they do exist, we perceive no motive for ascribing any
superior strength to that which would provide for those who might
claim the estate of the wife after her decease; to that which would
provide, after her decease, for the only child of the testator.
To create these inconsistent intentions -- this intention to do
in limiting this remainder what the policy of the law forbids, the
bequest to the wife must be construed to give her the power to sell
or consume the whole personal estate during her life, which is
totally incompatible with a gift of what remains at her death. The
remainder after such a bequest is said to be void for
uncertainty.
Page 31 U. S. 79
As this construction destroys totally the legacy, obviously
intended for the son by his father, it will not be made unless it
be indispensable. No effort to explain the words in a different
sense can do so much violence to the clause as the total rejection
of the whole bequest, given in express terms to an only son.
The first part of the clause which gives the personal estate to
the wife would undoubtedly, if standing alone, give it to her
absolutely. But all the cases admit that a remainder limited on
such a bequest would be valid, and that the wife would take only
for life. The difficulty is produced by the subsequent words. They
are "which personal estates I give and bequeath unto my said wife,
Elizabeth Goodwin, to and for her own use and benefit, and disposal
absolutely." The operation of these words, when standing alone,
cannot be questioned. But suppose the testator had added the words
"during her life." These words would have restrained those which
preceded them; and have limited the use and benefit, and the
absolute disposal given by the prior words, to the use and benefit,
and to a disposal for the life of the wife. 13 Ves. 444. The words
then are susceptible of such limitation. It may be imposed on them
by other words. Even the words "disposal absolutely" may have their
absolute character qualified by restraining words, connected with,
and explaining them to mean, such absolute disposal as a tenant for
life may make.
If this would be true, provided the restraining words "for her
life" had been added, why may not other equivalent words, others
which equally manifest the intent to restrain the estate of the
wife to her life, be allowed the same operation. The words "the
remainder of said estate, after her decease, to be for the use of
the said Jesse Goodwin," are, we think, equivalent. They manifest
with equal clearness the intent to limit the estate given to her,
to her life, and ought to have the same effect. They are totally
inconsistent with an estate in the wife, which is to endure beyond
her life.
Notwithstanding the reasonableness and good sense of this
general rule, that the intention shall prevail, it has been some
times disregarded. If the testator attempts to effect that which
the law forbids, his will must yield to the rules of law. But
Page 31 U. S. 80
courts have sometimes gone further. The construction put upon
words in one will, has been supposed to furnish a rule for
construing the same words in other wills, and thereby to furnish
some settled and fixed rules of construction which ought to be
respected.
We cannot say that this principle ought to be totally
disregarded; but it should never be carried so far as to defeat the
plain intent; if that intent may be carried into execution without
violating the rules of law. It has been said truly, 3 Wils.
141,
"That cases on wills may guide us to general rules of
construction, but unless a case cited be in every respect directly
in point, and agree in every circumstance, it will have little or
no weight with the court, who always look upon the intention of the
testator as the polar star to direct them in the construction of
wills."
In
Porter v. Tournay, 3 Ves. 311, Lord Alvanley
declared his opinion to be
"that a gift for life, if specific, of things
quae ipso usu
consumuntur, is a gift of the property, and that there cannot
be a limitation after a life interest in such articles."
In the case of
Randall v. Russell, 3 Mer. 190, the
Master of the Rolls inclines to the same opinion. But these cases
do not turn on the construction of the wills, but on the general
policy of the law in cases where the legacy is of articles where
"the use and the property can have no separate existence."
One of the strongest cases in which the court of chancery has
decided that the legatee first named took absolutely, though there
was a limitation in remainder, is that of
Bule v.
Kingston, 1 Mer. 314.
Ann Ashby, by her will, gave the sum of fifteen hundred pounds,
bank annuities, to John Earl Talbot, his executors, &c., in
trust for her sister Charlotte Williams for her separate use, and
"all other sums that may be due to her," she left in trust with the
said John Earl Talbot for the use of her said sister:
"What I have not otherwise disposed of I give to my said sister
the unlimited right of disposing of by will, excepting to E. P.,
&c., and in case my said sister dies without a will, I give all
that may remain of my fortune at her decease to my godson William
Ashby. The rest and residue of my fortune I give to my sister
Charlotte Williams, making her the sole executrix of this my last
will and testament. "
Page 31 U. S. 81
Charlotte Williams made a will by which she appears to have
disposed of the whole of her own estate, but not to have executed
the power contained in the will of Ann Ashby. What remained of her
estate was claimed by the representative of the husband, who
survived his wife, Charlotte Williams, and also by William Ashby,
under the bequest to him of what might remain at the decease of
Charlotte Williams if she should die without a will. The Master of
the Rolls, being of opinion that the whole vested in Charlotte
Williams, decided in favor of the representative of her husband and
that the bequest to William Ashby was void.
In support of this decree it might be urged that as the
remainder to William Ashby was limited on the event of her sister's
dying without a will, which event did not happen, the remainder
could not take effect. Or, which is stronger ground, that the whole
will manifests an intention to give everything to her sister, and
that the eventual limitation in favor of William Ashby, accompanied
as it is by various explanatory provisions, does not show such an
intention in his favor as to defeat the operation of the clauses in
favor of Charlotte Williams, which show a superior solicitude to
provide for her. The testatrix gives to her sister the unlimited
right of disposing of whatever may not have been bequeathed by
herself, thereby enabling her to defeat the contingent remainder to
William Ashby, and then gives to her sister all the rest and
residue of her fortune. The sister is obviously, on the face of the
whole will taken together, the favorite legatee, and no violence is
done to the intention by giving to bequests to her their full
effect, uncontrolled by the contingent remainder to William
Ashby.
But the Master of the Rolls does not place his decree on this
ground, and we must understand it as he understood it himself.
He says it is impossible to make sense of the will if the
residuary clause is to be taken as distinct from what goes before
it.
"It is evident the testatrix perceived a defect in her intended
disposition of the entire property in favor of Mrs. Williams, and
that she had only given a power where she meant to give the
absolute interest. To supply that defect, she gives the residue by
the clause in question, and then the will
Page 31 U. S. 82
is to be read as if it stood thus:"
" I give to charlotte Williams the residue of my estate,
together with the right of disposing of the same by will, except to
E.P., and if she dies without a will, then I give whatever may
remain at her death to William Ashby."
"She gives to Charlotte Williams, as a married woman, the right
of disposing by will of the property vested in her, independently
of the control of her husband, and she intended at the same time
that if anything was left undisposed of by her, it should go to
William Ashby. But this is an intention that must fail on account
of its uncertainty. Charlotte therefore took the absolute interest
in the property,"
&c.
This opinion is not so carefully expressed as to remove all
doubts respecting its real meaning and to show precisely whether
the uncertainty which destroyed the validity of the remainder
belonged to all cases in which property was given in general terms,
with a power to use it and to dispose of it, or belonged to those
cases only in which analogous circumstances were found. The Master
of the Rolls admits that the testatrix intended to dispose of the
entire property in favor of Mrs. Williams, but perceived that she
had only given a power where she meant to give the absolute
interest. In speaking afterwards of the right given to Charlotte
Williams of disposing by will, he says it is "of the property
vested in her independent of the control of her husband."
The whole opinion furnishes strong reason to believe that the
Master of the Rolls considered himself as pursuing the intention of
the testatrix in declaring the remainder void, and that Charlotte
Williams took absolutely. It would be difficult, we think, to
support the proposition that a personal thing not consumed by the
use could not be limited in remainder after a general bequest to a
person in being with a power to use and even dispose of it,
provided the whole will showed a clear intention to limit the
interest of the first taker to his life.
In
Upwell v. Halsey, 1 P.W. 651, the testator directs
"that such part of his estate as his wife should leave of her
subsistence should return to his sister and the heirs of her body."
The court observed
"As to what has been insisted on, that the wife had a power over
the capital or principal sum; that is true, provided it had been
necessary for her
Page 31 U. S. 83
subsistence, not otherwise, so that her marriage was not a gift
in law of this trust money. Let the master see how much of this
personal estate has been applied for the wife's subsistence, and
for the residue of that which came to the defendant, the second
husband's, hands let him account."
This decree is founded on the admission that in a case in which
the first taker might expend an uncertain part of the thing given,
a remainder might be limited. The uncertainty of the sum which
might remain formed no objection. The cases are numerous in which
the intent has controlled express words.
In the case of
Cowper v. Earl Cowper, 2 P.W. 720,
several questions were discussed which arose on the will of Robert
Booth, one of which was founded on a bequest of money to Mr. Samuel
Powell, to be laid out in lands to be settled
"in trust for and to the use of my son and daughter, William
Cowper Esquire, and Judith his wife, for the term of their lives,
and after the decease of my daughter, then to the child or
children,"
&c. It became a question of some importance whether the
limitation over took effect on the death of the daughter or on the
death of the husband, who survived her. The Master of the Rolls was
of opinion that it took effect on the death of the wife, being of
opinion that the express words giving the estate to both for their
joint lives, though always adjudged to carry the estate to the
survivor, were restrained to the wife by the subsequent words which
give the remainder "after the decease of his daughter." "If the
latter words be not so taken, they must," he says, "be totally
rejected."
After reviewing the various decisions on the effect of such
limitations, he adds
"So in our case, the words subsequent to the limitation 'and
after the decease of my daughter to the child or children,' &c.
show the testator's intent, and must determine the effects of the
limitation, especially in a will, where the intent overrules the
legal import of the words, be they never so express and
determinate."
In finding this intent, every word is to have its effect. Every
word is to be taken according to the natural and common import; but
whatever may be the strict grammatical construction of the words,
that is not to govern if the intention of the
Page 31 U. S. 84
testator unavoidably requires a different construction. 4 Ves.
329, 57, 311.
The court said in
Sims v. Doughty, 5 Ves. 247, "and if
two parts of the will are totally irreconcilable, I know of no rule
but by taking the subsequent words as an indication of a subsequent
intention."
Blackstone, in his Commentaries Vol. II. 380, asserts the same
principle. The approved doctrine, however, unquestionably is that
they should, if possible, be reconciled, and the intention be
collected from the whole will.
In the case before the Court it is, we think, impossible to
mistake the intent. The testator unquestionably intended to make a
present provision for his wife and a future provision for his son.
This intention can be defeated only by expunging or rendering
totally inoperative the last clause of the will. In doing so, we
must disregard a long series of opinions, making the intention of
the testator the polar star to guide us in the construction of
wills, because we find words which indicate an intention to permit
the first taker to use part of the estate bequeathed.
This suit is brought for slaves -- a species of property not
consumed by the use, and in which a remainder may be limited after
a life estate. They composed a part, and probably the most
important part, of the personal estate given to the wife "to and
for her own use and benefit, and disposal absolutely." But in this
personal estate, according to the usual condition of persons in the
situation of the testator, there were trifling and perishable
articles, such as the stock on a farm, household furniture, and the
crop of the year, which would be consumed in the use, and over
which the exercise of absolute ownership was necessary to a full
enjoyment. These may have been in the mind of the testator when he
employed the strong words of the bequest to her. But be this as it
may, we think the limitation to the son on the death of the wife
restrains and limits the preceding words so as to confine the power
of absolute disposition, which they purport to confer of the
slaves, to such a disposition of them as may be made by a person
having only a life estate in them. This opinion is to be certified
to the circuit court.
Page 31 U. S. 85
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
East Tennessee, and on the points and questions on which the judges
of the said circuit court were opposed in opinion, and which were
certified to this Court for its opinion agreeably to the act of
Congress in such case made and provided, and was argued by counsel
on the part of the plaintiff, on consideration whereof, this Court
is of opinion that Elizabeth Goodwin took only a life estate, by
the will of Britain B. Goodwin, in the slaves belonging to the
personal estate of the said Britain B. Goodwin, and that Jesse
Goodwin had, by said will, a vested remainder in the said slaves
that would come into possession on the death of the said Elizabeth.
All of which is hereby ordered and adjudged to be certified to the
said circuit court as the opinion of this Court.
