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following: I direct my executors, as soon as it created, and for the investment of so much can be done to the best advantage, to convert thereof as may at any time be upused or unexsaid real and personal estate into money or safe pended, so that the fund may be preserved and moneyed securities and pay over one half of increased so far as practicable, and that said my estate, after articles numbers 1, 2, 3, 4 and trustees, each and every year as long as said 5 bave been complied with, to the University | fund exists, shall give public notice in at least of Vermont and State Agricultural College, three weekly newspapers printed in the State and that the trustees of said institution sball of Vermont, one of which shall be in Caledonia apply the income thereof, and such part of the County and one in Essex County, at least three principal as shall become necessary, to be ex. weeks each year, stating the existence of the pended from time to time in paying the ex- fund and briefly stating to what class of young penses, in whole or in part, of poor and deserv- men the fund is made available by the terms of ing young men pursuing their studies in the this will. Same to be paid to said university academical department of said institution, or and college in sums not to exceed $1,000 each in loaning to such young men such sums, and for the first five years. The trustees of said in. in such manner and on such security as said stitution are to report semi-annually to each of trustees may determine. The bequest or legacy my executors the amount of the funds expend. I bere make not to be expended in the educa- ed and to whom, and should the said trustees tion of young men who themselves or parents fail at any time to carry out the provisions of are pecuniarily able to pay for their education, this will on the part of said university and colunless on a loan well secured to be refunded to lege, in all particulars, my said executors are said trustees, and held as a fund as far as prac- directed to withdraw the payment of further ticable for the education of poor young men, as funds to said Vermont University and Agriculthis bequest is intended; herein giving pref. tural College, and said executors are directed erence to applicants residing in the Towns of to (invest?) ihe remainder of said funds in some Hardwick in Caledonia County and Concord other institution of learning in Vermont that in Essex County, Vermont, and after these to my executors in their discretion shall select, un. applicants residing in any town in Vermont. der the same provisions and restrictions the No discrimination to be made against appli- grant or bequest is made by this will to the cants on the ground of sect, religion or society. Vermont University and State Agricultural Thonigh intemperate young men are to be ex- College. cluded from the benefit of this my bequest. “Article Seventh. It is my will that my exAll loans when paid shall be held by the trustees ecutors shall hold the other fourth-part of my for the same purpose. It is my desire that said estate, both real and personal, not beretofore trustees establish proper regulations and condi- appropriated, as a fund to be known as the tions for the expenditure of the fund hereby i Cornelius A. Jeudevine memorial fund, for the
she leaves issue or descendants, the principal sum, Testator bequeathed the residue of his estate to with accumulated interest, to be paid to them, - his nephews and nieces, share and share alike, exgives an absolute title to the daughter. Brubaker's cept one nephew; and in a subsequent clause proApp. (Pa.) 15 Atl. Rep. 708.
vided: “At the decease of either said nephews or A devise, in 1847, of certain land to a daughter and nieces I give and bequeath such one's half portion her children, free from the disposition of any fu- and interest on the trust fund to his or her legal ture husband, the daughter then having no chil- heirs; and at the decease of all my nephews and dren, gave her an absolute fee under the statute, nieces I give and bequeath the principal of said enlarging an estate tail to a fee simple, and the trust fund to their legal heirs, including W's heirs," children born to her after testator's death take no the nephew above excluded. It was held the sube estate by way of remainder or otherwise, Lofton sequent clause did not cut down the estates given V. Murchison, 80 Ga. 391.
by the prior clause, and the word "all" should be A will giving to the three daughters of testatrix construed "each" or "every one,” and the word certain land to be jointly used wbile they remained "on" should be construed "in." Sherburne v. unmarried, any one of them marrying to forfeit Sischo, 3 New Eng. Rep. 431, 143 Mass. 439. the use, the survivor having the right to dispose of So an estate given in clear words cannot be cut the property by will or otherwise, the share of any down by subsequent words, unless they are equally one of them dying unmarried to descend to the clear and decisive. An estate created by clear survivors, the daughters to sell the property and words cannot be enlarged by words less clear and divide the proceeds, if they all marry, and giving decisive. Goudie v. Johnston, 7 West. Rep. 589, 109 them all the residue of her property, if any,-gives Ind. 427. the three daughters an estate in fee simple in the Thus a devise of real estate to a wife, "to remain property, so that two of them, on the death of the hers so long as she shall remain unmarried after other unmarried, may convey their entire interest my decease," confers life estate only; a subsequent by deed. Myers v. Bentz, 127 Pa. 222.
provision authorizing her to sell so much as she The fee simple given by a devise to a son, his heirs may find necessary does not enlarge the estate to a and assigns forever, is not cut down by a subse- fee. Nash v. Simpson, 1 New Eng. Rep. 699, 78 Me. quent clause, after a devise to a daughter, provid- 142. ing that the lands before devised to the son, if he should die without a descendant, should be disposed
Precatory words not to affect estate granted. of in various ways, dependent on certain contin- After an unqualified devise by a testator of his gencies, leaving a possible intestacy as to such property, no precatory words addressed to his devlands, where the will shows a clear determination isce can defeat the estate previously granted. to make a final disposition of the whole estute. In Hopkins v. Glunt, 2 Cent. Rep. 63, 111 Pa. 287. such case the rule applies that an estate given in A will giving testator's wife all his property, both clear and decisive terms in one clause cannot be real and personal, with the further provision that, taken away or cut down by subsequent words that in case of her death “ before the settlement of "his are not equally clear and decisive. O'Boyle v. estate, his property should be equally divided beThomas, 116 Ind. 243.
tween two nephews; and adding: “I have full con. 7 L. R. A.
education of poor deserving young men in the Woodbury for sale, in view that some capitalist same manner and with the same restrictions as would purchase the whole for the sake of operprescribed in article 6th, that the Vermont Uni. ating the timbered lands, and would further versity and State Agricultural College are to suggest an additional executor to be appointed, perform as vamed in said article 6th, and at any who resides in Hardwick, to particularly bave time after five years from my decease, should charge of my real estate and, with the advice my executors in their discretion judge best, of the other executors named, to dispose of alb whatever may remain of the one-fourth part of my real estate, and would suggest as such admy estate they bave the right to appropriate ditional executor either Loren C. Foss or L. one half of said fourth part remaining unex. H. Warren (as my other executors may think pended to my native Town of Concord,
in Es- advisable) for one of them with the other exsex County, Vermont, and the other half to the ecutors named in my will to see to said real esTown of Hardwick in Caledonia County, both tate and personal property and also to see that bequests to be known as the Cornelius A. Jeude- each provision of my will is carried out, and vine memorial fund, the interest of which to that the probate court, at the decease of the ex. be used in each of said towns for school pur- ecutors named, continue to appoint an executor poses in the education of all classes in the sev. and sufficient funds retained to pay for his eral school districts in each town without dis- services and expenses, to see that the Burlingcrimination, though in the latter town some ton University and Agricultural College and parents are not deserving any assistance from the Towns, viz., Hardwick and Concord, sball me to educate their children or aiding them in use the funds as specified here and in my said paying their school-district taxes.
will and bonds duly executed and filed in the ** Article Eighth. It is my will that my Probate Court in Caledonia County for the home place in said Hardwick where I now re- faithful performance of each. side, or any other place where I may reside at “Each of said Towns to receive what is paid my decease, including the new house and out each Town as a memorial fund in the name of buildings and so much of the land connected my deceased son, Cornelius Alden Jeudevine, as my wife may desire to occupy, to be kept the interest of wbich, at 6 per cent annually, to for the use of my wife and occupancy during be expended for school purposes as named in her lifetime, unless my wife desires it sold, and said will. The sum paid to each Town may be while she thus occupies it it is to be kept in used to pay the indebtedness of each Town, and good repair by said executors, taxes and insur- should either Town, or both, neglect to carry ance also to be paid out of my estate before a out the provisions set forth by me, the funds division of said estate and to be no charge to delivered and paid to such Town by my execumy said wife for its occupancy by her, and tors, to be collected from said Town and placed when sold the avails of which to be divided in some other town or towns that will receive and to go as other parts of my estate as willed it and carry out my desires, wishes and will as in articles 5, 6 and 7, half to my wife, one set forth by me. fourth to the Vermont University and State “I would suggest as appraisers and comAgricultural College, and the other fourth to missioners to my estate, P. K. Gleed of Morrisbe appropriated and expended by my executors ville, Abel Gile of Walden and Isaac P. Titus as pamed in article number seven.
of Hardwick, if living at my decease. Codicil. “I, Alden E. Jeudevine, make the “And to further explain my wishes say I following additions and explanations of my prefer that what is necessary to pay my execuwishes in addition to my last will and testa- tors for their services to see that the provisions ment, dated Nov. 16, 1883, to which this is at- of my wishes and will are carried out rather tached. It is my wish and will that my real than have that amount paid to the University estate in particular shall not be sacrificed by an and Towns and they not carry out the provisions immediate sale, and that my timbered lands in of my will. Hardwick shall be held by my said executors “If anything in this conflicts with my will until my other real estate in Hardwick is dis- dated November 16, 1883, it is my will that posed of, and to carry out my wishes and ideas this explanation of my wishes and will shall would suggest that my executors sball adver. take precedence to that will wherein it contise my whole real estate in Hardwick and flicts.
fidence in my beloved wife, Mary, that she will do as to a specific disposition of his property, standing what is best and proper with my effects, and that by themselves alone, may constitute a valid devise she would do with my property the same as I would or bequest thereof, but not when such expressions wish to have done, that she will take care of the are used after an absolute disposition of the propproceeds. She is by this gift free from all restraint erty has been made. After an unqualified devise to do as may seem to her best and proper;” and also by the testator of his property, no precatory words appointing her executrix,-gives to her, after her to his devisee can defeat the estate previously final settlement and discharge as executrix, all the granted. Burt v. Herron, 66 Pa. 400; Bowlby v. property absolutely, without any trust in favor of Thunder, supra. the nephews. Giles v. Anslow, 128 III. 187.
The precatory form of a testamentary writing is The rule is well settled that words in a will merely immaterial, where it has the essential element of expressive of desire, recommendation and confi- being a disposition of property to take effect after dence, are not sufficient to convert a devise or be- death, although it is in form merely a request, inquest into a trust. Re Pennock's Estate, 20 Pa. 238; stead of a command, addressed to no specified perJauretche v. Proctor, 48 Pa. 466; Second Ref. Presb. son by name, but plainly to those who should have Church v. Disbrow, 52 Pa. 219; Bowlby v. Thunder, possession or control of the property. Knox's Apa 105 Pa. 173.
(Pa.) 6 L. R. A. 353. Expressions of a desire or a wish of the testator
Mr. P. K. Gleed for appellants.
gift over "inconsistent with this power," and Messrs. Wales & Wales for the defendant therefore void. College, appellee.
See Richardson v. Paige, 54 Vt. 373; Smith, Messrs. Wilson & Powers, for Malvina v. Bell, 31 U. S. 6 Pet. 68 (8 L. ed. 322); Brant M. Jeudevine, appellee:
V. Virginia Coal & Iron Co. 93 U. S. 333 (23 The estate conveyed by article 5 of the will L. ed. 928); Bradley v. Westcott, 13 Ves. Jr. 445; is a fee; and if a fee is thus conveyed, the gift Boyd v. Strahan, 36 III. 355; Burleigh v. Clough, over is void for repugnancy. Nothing but a 52 N. H. 267; Dunning v. Van Dusen, 47 Ind. clear intention to cut down the estate thereby 423; Chaplin v. Doty, 60 Vt. 715; Shepard v. conveyed will be allowed to do so.
Shepard, Id. 116; Stowell v. Hastings, 59 Vt. 1 Jarman, Wills, 480, and cases cited; Camp- 497; McCloskey v. Gleason, 56 Vt. 264; Hibbard bell v. Beaumont, 91 N. Y. 464; Damrell v. v. Hurlburt, 10 Vt. 178; Brightman v. Bright. Hartt, 137 Mass. 218; Parker v. Iasigi, 138 man, 100 Mass. 238; Williamson v. Daniel, 25 Mass. 416.
U. S. 12 Wheat. 568 (6 L. ed. 731); Randall v. The absolute power of disposal, at all times, Josselyn, 59 Vt. 557; 2 Jarman, Wills, 46; Shaw and for all purposes, as distinguished from a v. Huzzey, 41 Me. 495; Ramsdell v. Ramsdell, power to use in a particular way, or dispose of 21 Me. 288. to a particular person, constitutes a fee.
1 Roper, Leg. 642, and cases cited; Hughes Veazey, J., delivered the opinion of the v. Ellis, 20 Beav, 193; Perry v. Merritt, L. R 18 Eq. 152; McDonald v. Walgrove, 1 Sandf. Ch. Treating the 5th article of the will, for con274; Jackson v. Coleman, 2 Johns. 392, 3 Co-venience or reference, as divided into three ops. C. L. 425; Jackson v. Robins, 16 Johns. parts,--the first ending with the first punctua537, 6 Co-ops. C. L. 234; Van Horne v. Camp. tion period, the second with the next period, bell, 100 N. Y. 287; Kendall v. Kendall, 36 N. and the third with the last, --it is quite plain, J. Eq. 91; McClellan v. Larchar, 45 N. J. and not disputed, that the first part standing Eq. 17; Ide v. Ide, 5 Mass. 500; Daris v. Mailey, alone would carry a fee. In the second part, 134 Mass. 588; State v. Smith, 52 Conr. 557; there is clearly granted an unlimited, absolute Storcell v. Hastings, 59 Vt. 494.
power of disposal. That is not disputed; but The remainder over is void for repuguancy. it is claimed in behalf of the College and Town Chaplin v. Doty, 60 Vt. 712.
that this part indicates an intention to limit the The intention of the testator, gathered from title in Mrs. Jeudevine to a life estate, and that the will itself when “taken by its four corners,
," this import is strengthened by the third part. must govern its construction, unless well-estab. The contention on the part of Mrs. Jendevine lished rules of law would thereby be violated. is that, as the first part makes the grant a fee,
Finlay v. King, 28 U. S. 3 Pet. 377 (7 L. ed. the third part must be rejected as repugnant. 712).
It is claimed for the College and Town that ibe The language used shows that the testator intention of the testator, fairly deducible from did not use the words “during her life” in a the language of the article as a whole, was to technical sense; their technical meaning will give a life estate only to the wife, with power therefore be over-ridden by such intention. of disposal at her pleasure. Taking the sev.
1 Redf. Wills, 435, 436; 4 Kent, Com. 633, eral parts up in their order, the first one connote 4; Doe v. Stenlake, 12 East, 517; Doe v. cededly imports a devise of an estate in fee, Thomas, 3 Ad. & El. 123; Robertson v. Johns without a word indicating a different inten. ton, 24 Ga. 102; Loury v. Muldrow, 8 Rich. Eq. tion. The second part begins by saying the 241; Lasher v. Lasher, 13 Barb. 106; Post v. foregoing grant and devise to his wife is for Horer, 30 Barb. 312.
her sole use, control and enjoyment during her Mr. Harry Blodgett, for the Town of life. This points to a life estate; but it is folConcord, appellee:
lowed by the expression, “trusting and expectThe court will carry into effect the declared ing that she will use and dispose of the whole intent of the testator if it is clearly expressed thereof as she may desire, and that she will and is consistent with the general rules of law. give the residue, if any remains at her death,
“The intention must be gathered from the by her will, to such persons, and for such purwords of the testator, and the words construed poses, as she may desire.” Therefore the secaccording to the letter and legal effect of them.” ond part, as a whole, seems to us to negate an “ The intent is to be collected from the will it intention to limit the grant to a life estate. self, giving effect to every word and part." The portion quoted makes it ciear that the in
See notes, with cases cited, in Pray v. Belt, tention was to give an absolute power of dis26 U. S. 1 Pet. 670 (7 L. ed. 309).
posal, not of a life estate, but “of the whole The express bequest to Mrs. Jeudevine is for ibereof,” either by deed or will. “her sole use, control and enjoyment during To deduce an intention of limitation upon a ber life,” which are apt words and limit the previous grant in terms constituting a fee, from grant to a life estate only. The gift of the a clause providing for an absolute and unre. "remainder" shows that the intention of the stricted power of disposition, would indeed be testator was that if Mrs. Jeudevine left any a violent and unreasonable inference. The part of the one-balf interest undisposed of at clause “during ber life" is to be interpreted in her decease, such “remainder," instead of de- the light of the following clauses, wbich unscending to her heirs, would become a part of mistakably point to unrestricted power of disthe "Cornelius A. Jeudevine Memorial Fund” position of the fee. and inure to the benefit of the “University of Therefore, until we come to the third part, Vermont” and “Town of Concord.”
we find no indication of an intention to limit Tbe fact tbat Mrs. Jeudevine is given the ab- the grant to a life estate. But it is upon this solute power of disposal does not render the l part that counsel mainly rely to show an intertion to thus limit the grant. It is plain that | But, this remainder clause being only for the the central idea in the mind of the testator in purpose just stated, we do not think it indi. drawing the third part of this article was not cates an understanding of the testator that he to make a provision for the Town of Concord had not already made a grant in fee to his wife. and the College, but to guard against any of In this respect this case differs from that of the property granted to his wife from passing Smith v. Bell, supra, and others of tbat class; to her beirs unless she should give it to them. and it differs, also, from Richardson v. Paige, They had no living children. He provided for supra, in this: that there the bequest to Paige the Town and College elsewhere in the will. was in express terms made subject to the proHerein is a distinction between this will and vision for the contingent benefit of his wife. the wills in Smith v. Bell, 31 U. S. 6 Pet. 68 (8 Neither does it fall into the category of those L. ed. 322), and other cases cited. The lan- cases, several of wbich are cited in ihe briefs, guage of the granting clause in Smith v. Bell, where the testator gives to the first taker an es. as in the case at bar, was adequate to carry a tate for life only, by certain and express words, fee, but that was followed by a provision for a and annexes to it a power of disposal, in which remainder, which was interpreted by the court case the devisee for life will not take an estate to manifest the intention of the testator to make in fee, notwithstanding the distinct and naked a future provision for his son. Therefore the gift of a power of disposition of the reversion; court, in order to carry out such intention, and that is, an absolute and unqualified power of give effect to all parts of the will, regarded the disposal annexed to an express life estate does remainderclause as indicating an intention in the not enlarge the quantum of the estate. See granting clause to limit the grant to a life estate. Jackson v. Robins, 16 Jobps. 588, and cases
In ihe opinion of Redtield, J., in Richardson there cited. v. Paige, 54 Vt. 373, the learned judge, after We think it was the intention of the testator quoting this rule, “The exclusion of the devise to make a grant and devise to his wife of an over depends upon whether the first taker bas estate in fee, and that the case falls directly the absolute right to dispose of the property," within the decision in Storell v. Hastings, 8. says that Chief Justice Marsball disregarded it pra, where the will, after disposing of a part in order to construe the will according to the of the estate, gave to the testator's wife the res. intention of the testator.
idue, “for her benefit and support, to use and We think a careful reading of the opinion of dispose of as she may think proper," and then the chief justice does not warrant such conclu provided that, if any of the estate should be sion, but that he put the decision upon the left in her possession at her death, it should ground above stated. That has been regarded be equally divided between the brothers and as an extreme case, and has provoked some sisters of the testator; and it was held that the adverse comment; but it bas been cited with wife took an absolute estate, and that the reapproval by this court, and so far as it involves mainder over was void for repugnancy. The legal rules of construction it seems to be with proposition of law upon which the court rested in the general line of authority, especially as ihe decision, as enunicated by Taft, J., in the adopted in this State, and lately expressed in opinion, was this: "If'an estate be given to a Chaplin v. Doty, 60 Vt. 712, viz.: ' "It is an person generally or indefinitely, with an abelementary rule of construction that an abso-solute power of disposition, it carries a fee, and lute gift in a will will not be defeated by a a remainder over is void for repugnancy;” and subsequent repugnant clause. If the subse- he then cited numerous authorities in support. quent clause is plainly a qualification or condi. Under the 7th article, we consider that the tion, which evidently was intended by the tes-executors are to hold and appropriate the por tator to be read as part of the preceding clause, tion of the estate tberein specified for five years, the rule is different. It makes little difference for the purposes, and under the same restricin the construction whether the granting clausetions, and in the same manner, in all respects, itself is in form conditional, or ihe condition is as prescribed and provided in the 6th article of annexed to a clause in form absolute.”
the will, as to the portion of the estate therein And again, in Stowell v. Hastings, 59 Vt. 494, granted and devised to the University of Verviz.: "In determining what estate is given the mont and State Agricultural College. We first taker, the whole will should be considered, think the clause, “whatever may remain," etc., and all the clauses construed together. Even plainly indicates that this fund is not to be kept in those cases where an absolute estate is in for accumulation during the five years, but is terms given, if subsequent passages unequivo- to be used as above stated. cally show that the testator meant the legatee All parties agree tbat the provision of the to take a life interest only, the prior gift is re- first codicil as io sale of timbered lands does stricted accordingly. 1 Jarman, Wills, chap. not operate as a restraint of the sale thereof 15. Such are the cases in this State of Rich. I until all the other real estate in Hardwick is ardson v. Paige, 54 Vt. 373; McCloskey v. Glea- disposed of, but was intended to be only adson, 56 Vt. 264.”
visory, and that the executors may, in their If the remainder clause, the third part of the discretion, effect a sale notwithstanding such 5th article, not being for the purpose of a it other real estate is undisposed of. A majority to the Town and College, but, as before stuurd, of the court are inclined to adopt this view, all to keep an assumed remainder undisposed of parties agreeing thereto, and being satisticd by deed or will by Mrs. Jeudevine from going that it would be carrying out the real intention to her heirs, she having no children, shows that of the testator; that is, an administration of in the opinion of the testator the previous words the estate in a way that would promote its best had given only an estate for life, tben, upon interests, and that of all parties interested the authority of Smith v. Bell, supra, we may therein, and that the beneficial purposes of the hold that the grant was only of a life estate. / testator would thereby be better attained.
We also concur in the suggestion of the In the first part of the first sentence of this orators in the bill that the taxable costs of all article the tesiator used language, if that were parties, with reasonable counsel fees, should be all, appropriate to convey an absolu:e estate to paid out of the funds of the estate before dis. the wife. He then made the proceeds of his tribution, the same to be fixed and allowed by life insurance a part of the half of the residue, the court of chancery.
and closes the sentence with, “and subject to The pro forma decree disinissing the bill is re- the conditions specified in article numbered der sed, and the cause remanded, to be disposed eight in this will, relating to my home premof pursuant to the mandate filed.
ises.” Turning to article 8, we find that the
wife is given only a life estate in the home Ross, J., dissenting:
premises. Hence by the express terms of the I do not concur in the construction given to will, at least in that part of the half of the the devise of the testator to his wife. All rules residue received from bis life insurance, the of construction are devises, originating in the wife takes only a life estate. But I think it is peculiar language and circumstance of some no departure from the ordinary use of lan. case or cases, to aid in ascertaining the inten- guage, nor from the usual rules of construc. tion of the testator. Their proper use is to tion, to make the last clause of the sentence ascertain, and not to defeat, the intention of apply to the whole devise rather than to limit the testator. How far they may be helpful in its application to the proceeds received from determining such intention in a given case de his life insurance. By this construction only pends upon whether the language used, and a life estate is given by the first sentence of this circumstances to which it is applicable in the article. given case, are substantially identical with the The second sentence, in terms, is made to aplanguage used, and circumstances of the case ply to the devise made by the first sentence, or cases in which the rule or rules originated. and must be read as a part of it. It reads: It rarely bappens that the language and cir- “The foregoing grant and devise to my wife is cumstances of two cases substantially coincide. for her sole use, control and enjoyment during Hence such rules should never be given undue her natural life.” Thus far this sentence disforce, or followed without reason, and should closes only a life estate, and is consistent with never be allowed to defeat the express intention the first sentence as I have construed it. It of the testator. When such intention is clearly then proceeds: “Trusting and expecting that and unmistakably expressed on a given point, she will use and dispose of the whole thereof it, of itself, furnishes a safe guide to the con-j as she may desire, and that she will give the struction which should be given to his language residue, if any remains at her death, by her used in other portions of the same devise, will to such persons, and for such purposes, as which, if read by itself, might be of doubtful she may desire." By this clause the testator import. I think it should be the invariable clearly confers upon the wife the power to disendeavor of the court to harmonize all parts of pose of what she receives, a life use under this a will relating to the same subject maiter, so devise, by gift inter vivos or by will. What as to give meaning and effect, and consistent need had he to make this explicit provision if ones if possible, to every clause relating to the be bad given to her the property covered by same devise. It should never create a repug- this devise in fee absolute? The two parts of nancy, if it can reasonably be avoided. this sentence, taken together, relate, in terms,
I do not think that there is necessarily any to the property devised by the first sentence, Tepugnancy between the different clauses of and, if need be, limit the estate granted to a article five of the will. This article reads: “I life estate, coupled with the power of disposal grant and devise to my beloved wife, Malvina by gift inter vivos or by will. On this conM. Jeudevine, one half of the residue of my cs- siruction no inconsistence nor repugnancy tate, both real and personal; and it is my will arises, thus far, in the terms creating the de. that the proceeds of any policy of insurance vise. on my life wbich my wife may receive shall be Then comes the third and last sentence of computed as a part of the sbare given her by the article, which only empbasizes the conthis will, and subject to the conditions specified struction already given. It is: “But inasmuch in article numbered eight in this will, relating as I desire that such residue sball in no event to my home premises. The foregoing grant pass to her legal heirs, if undisposed of by and devise to my wife is for her sole use, con- her, I give” etc., making a devise over of trol and enjoyment during her life, trusting whatever she may leave undisposed of under and expecting that she will use and dispose of the power conferred. Here is a clearly exthe whole thereof as she may desire, and that pressed intention that his wife shall not take she will go ze the residue, if any remains at her absolute title to the property granted by this death, by her will to such persons, and for such devise, inasmuch as it must not descend to her purposes as she may desire. But ipasmuch as heirs. My brethren wholly disregard the I desire that such residue at ber decease shall clearly expressed intention of the testator by in no event pass to her legal beirs, if undis- giving such a construction to the preceding posed of by her, I give, grant and devise one sentences that the wife takes an absolute title half of the same to the University of Vermont to the property covered by this devise. Thus and State Agricultural College, in the same they create a war between the different provismander as named in article number six of this ions of the devise. It seems to me an endeavor will, and the other balf to be held and ex. to create by construction, rather than to avoid pended by said executors for the purpose named a repugnancy. I do not concur in that portion in article number seven in this will, meaning of the opinion of my associates wbat is unappropriated by my wife before her decease."