In re Estate of Silvey

By the Court, Wallace, J.: The entire estate was community property. Silvey left a widow (since his death become the wife of Biddle) and eight children. His will (so far as is claimed to be pertinent to the question here) was as follows:

“ Item First—I will that out of my estate all my just debts be paid.

“ Item Second—I will and bequeath the entire residue of my property to my dearly beloved wife, Susan, to be held, used, and enjoyed by her during her natural life, and after her death to be equally divided between * * * our children.”

Upon the death of Silvey, one half of the estate vested in his surviving wife, and the will is conceded to be inoperative as to that moiety. The Court below seems, however, to have been of opinion that the surviving wife could not be permitted to claim her moiety as survivor, under the statute, and, at the same time, claim an estate for life in the other moiety under the devise of the husband, and she was accordingly decreed to elect whether she would take one moiety in fee, and no more of the estate, or would take the [213]entire estate for life, with remainder over to the children at her death.

It is said, in support of this decree, that though it he true that the devise must in law be confined in its operation to one moiety only, it was, nevertheless, the intention of the testator to dispose, by will, of the whole estate—that he intended to devise to the children an estate in remainder in the wife’s statutory moiety at the same time that he purposed to vest her with an estate for life in the other moiety, which, but for the will, would have gone to the children as heirs at law of the father; and it is urged, that if the wife insist upon her right under the statute, she must be considered as thereby repudiating the will, and cannot be permitted to claim the benefit of its provisions in her favor.

There is nothing, however, in the language of the will which evinces an intention on the part of Silvey to dispose of the entire estate. The devise must be read as applying only to that moiety which was within his testamentary power. A purpose to attempt the disposition, by will, of property, which, by statute, would pass to the wife, as survivor of the matrimonial community immediately upon his death, is not to be readily inferred, especially where, as here, the words employed by the testator may have their fair and natural import, by applying them only to that moiety of which he had by law the testamentary disposition.