#### DEN on Dem. of WILLIAM D. JONES et al. vs. REBECCA POSTEN.

Where a testator, who had three tracts of land adjacent to each other, over parts of all which his plantation extended, and had three sons, R., J. and W., of whom R. and J. were married, and resided upon the testator’s lands, devised to his wife “full possession of all the plantation and stock &c., during her natural life or widowhood, except the particulars that may hereafter be mentioned,” and then devised to his son R. “all the 200 acre tract of land that he now lives on, and so much of the old tract as lies on the same side of Romony creek,” &c.; and in a subsequent part of his will, devised as follows: “I will and bequeath to my son J. all the remaining part of the old tract of land, ex- ' elusive of the part above mentioned, to my son R., and bequeath unto my son J. my still and all her furniture at the death or marriage of my wife. Also my wagon and hind gearing at her death:” It was held that the testator’s son J. took an immediate estate in fee in the lands devised to him, and not an estate in remainder after the death or marriage of the testator’s widow.

This was an action of Ejectment, for a tract of land, tried at Buncombe, on the last circuit, before his Honor Judge Hall; when the jury found the following special verdict:

“ That the paper writing given in evidence, is the last will and testament of John Posten, deceased; that in the said will are contained, among others, the following clauses: ‘Item 2nd. I will and bequeath unto my dearly and well beloved *167wife, Rebecca, full possession of all the plantation and stock, hquse and household furniture, during her natural life widowhood, except the particulars that may hereafter be mentioned. Item 8th. I will and bequeath unto my son, Robert, all the two hundred acre tract of land that he now lives on, and so much of the old tract as lies on the same side of Homony creek, above Joshua Jones, Junior’s, land, and all the land that is included in a bottom, known by the name of the Wagon Ford Bottom, on the north side of Homony creek. Item 9th. I will and bequeath to my daughter, Mary, fifty dollars. Item 10th. I will and bequeath to my son, John A. B., all the remaining part of the old tract of land, exclusive of the part above mentioned to my son Robert; and bequeath unto my son John A. B. my still and all her furniture, at the death or marriage of my wife. Also, my wagon and hind gearing, at her death. Item 14th. I will, and bequeath unto my son William, the three hundred acre tract of land that I now live on — the house and cupboard, at the death or marriage of my wife — and one horse and saddle, and mill and her furniture;’ that the land therein devised to the testator’s son, John A. B. Posten, is the land in controversy; that the lessors of the plaintiff claim title under the. devise made to John A. B., and have his title'thereto; that Rebecca Posten, the defendant, is the widow of the testator and devisee under said will, and that she has never since married, and is in possession of the land in controversy; that the lands devised in the said will, comprise the whole of the testator’s real estate, and lie in three adjoining tracts, to wit, the three hundred acre tract on which the testator had his dwelling house, mills, &c&wkey;the tract devised to his son Robert, and the lands devised in part to Robert,- and the remaining part to John A. B., being that in dispute; that the testator’s plantation embraced lands on all the tracts,- two thirds of which were on the lands devised to John A. B., and the field thereon extended up to within two hundred yards of the mansion house; that the testator had no other sons except the three devisees; that Robert and John were married and living on the testator’s lands, but John was not living on the lands devised to him; and that William was a boy under age, living with his *168father; that the testator died, not long after the date of bis will, which was on the 27th of January, 1819. If, in law, ' ' ' the devisee, John A. B., took a present interest under the will, they find the defendant guilty; but if he took only a remainder after the wife’s death or marriage, they find her not guilty.”

Upon these facts, the court gave judgment for the plaintiff’s lessors, and the defendant appealed.

No counsel appeared for either party in this Court.

Gaston,- Judge.

The will of John Posten, winch we are called upon to expound, is set forth at length in the transcript. At the time of its execution, he was seized of three adjacent tracts of land, and no other. The first of these was rt tract of 300 acres, on which his dwelling house and mills were situate; the second, a tract of 200 acres, on which his son Robert was living, being the same which, in the will, is altogether devised to the said Robert; and the third, a tract called the old tract, being the same whereof a part is in the will given to Robert, and a part to the testator’s second son, John A. B. Posten. The inclosed land or plantation of the testator covered parts of all these tracts, and embraced two thirds of the part given to John A. B., whereof the field approached to' within 300 yards of the testator’s dwelling. The testator had three sons, Robert,- John A. B., and William, of whom the two former were married and living on land of their father; but John was not living on the part devised to him in the will. William was a boy under age, living with his father. The testator died very soon after the execution of the will. And the sole question is, whether the devise to John A. B. Posten was of an immediate fee, or of an estate in remainder after the death or marriage of the testator’s widow.

We cannot pronounce with confidence what was the intention of the testator; but, following as well as we can the established rules of construction, we are brought to the conclusion that, under the will, John took an immediate fee simple.

The disposition made for the testator’s wife of “full possession of all the plantation and stock, house and household *169furniture, during her natural life or widowhood,” is qualified by the exception, “ except the particulars that may be hereaf-' ter mentioned.” Upon these words we should be obliged to hold, that the exception is broad enough to take in any subsequent disposition that might be therein made, of the plantation, as well as of the stock and other articles. The plantation, stock, house and household furniture, are enumerated as constituting one subject of gift — and the subject, consisting of these individuals, is given with the modification, and liable to the exceptions, expressed in the donation. The correctness of this opinion is made the more manifest, by examining the devise to the testator’s son Robert. The words of it are, “ I will and bequeath to my son Robert, all the 200 acre tract of land that he noio lives on, and so much of the old tract of land as lies on the same side of Homony creek, above Joshua Jones’s land, and all the land included in a bottom known by the name of the Wagon Ford Bottom, on the north side of Homony creek.” The testator recognizes that the devisee is then actually living on the 200 acre tract; and if the testator did not design to clothe this possession with a title, but to confer a right of possession at a future day — it cannot be doubted, we think, but that he would have here used some words indicative of this his purpose. This part of the devise to Robert, admits of no other construction than as passing an immediate estate in fee. If so, all contained in that clause, being but the sum of what is thereby given, is necessarily also given immediately; and, therefore,- the whole of the land given to Robert is excepted out of the disposition to the testator’s widow. After this devise to Robert,- comes a bequest of $50 to one of the testator’s daughters, Mary; arid then follows the item or section of the will which is the immediate subject of the present dispute. If the first sentence be. considered per se — and taken as a whole- — it leaves no room for doubt. “ I will and bequeath unto my son John A. B., all the remaining part of the old tract of land, exclusive of the part above mentioned to my son Robert.” There could be no reason for refusing to hold this to be an immediate gift, after having ascertained that a devise in the same terms to Robert was to be so expounded. If the gift to Robert come's' *170within the “ exception” to the disposition made to the wife, so must this also. The enquiry then is, does the sentence stop here? Is the force of the act, expressed by the terms, “ * §?7e an<^ bequeath,” here expended? The clause or section continues thus: “ and bequeath unto my son John A. B., my still and all her furniture, at the death or marriage of my wife — also, my wagon and hind gearing, at her death? Are these words, “ at the death or marriage of my wife,” or the words, “ at her death,” in the same sentence which contains the devise of the land’ — so that the modification expressed by them is applicable to that devise, or are they parts of distinct sentences, containing modifications of distinct gifts? It seems .to us that the rules of grammar oblige us to say. — if there be no plain reason to the contrary — that these modifications are not parts of the sentence in which the land is devised, and do not qualify that devise. The still and furniture, the wagon and hind gearing, do hot follow on after the land, as an addition or enumeration of further articles making up the subject matter on which the beginning words of the section “ I will and bequeath” are to operate — but are separated therefrom by distinct words of gift, and a distinct nomination of the legatee, “ and bequeath unto my son John A. B,” &c. This shews that the testator is now dealing with a new subject, and that the words which follow apply to that only, and not to the preceding subject — unless the intent that they should do so is plain. The idea is fortified by the peculiar language of the last part of the clause, “also, my wagon and hind gearing, at her death? Here is a modification with respect to the gift of these last articles, somewhat though slightly variant from that in the disposition of the articles just before mentioned. The clause .must, therefore, be regarded as consisting of three sentences, each containing a separate disposition of the subject matter of gift therein mentioned. The second and third are gifts to be enjoyed at a future day —but the first is without qualification, therefore immediate and absolute.

We feel that this mode of exposition is artificial, and of course not well calculated to eviscerate the intent of those who have expressed themselves in inartificial language. But *171we can find in this case no plain indications oí the testator’s meaning; and, unless we resort to the rule adopted, we shall be left altogether to conjecture. What the result of such conjecture might be, it is not easy to say. On the one hand, it seems strange that the testator should, in providing for his wife, give her the full possession of all Ids plantation, with the exceptions thereinafter mentioned, and then, by exceptions, take away more than two-thirds of the seemingly liberal gift. But, on the other hand, it is manifest that, in the devise to one of his married sons, he intended a provision securing to him a present home for himself and his family— and it is very improbable that, in a devise to another married , \ i , . . . son, he intended to make a provision for him and his family after the death or marriage of testator’s widow ! ' But we are not permitted to indulge in conjecture. The grammatical construction must prevail, when an intent to the contrary does not plainly appear.

_ In expounding a will, maticaim" eonstmeprevail “thlT1 contrary plainly appear

■ As our opinion corresponds with that expressed by his Honor, in the Court below, the judgment must be affirmed,

Per Curiam. Judgment affirmed.