The opinion of the court was delivered, by
Woodward, C. J.
— It is a conceded point that the 1st article of the testator’s will gave to his wife a fee simple in his real estate, and an absolute estate in his personalty, and the question is, whether the subsequent clauses must be so construed as to cut down her interest to a life estate.
The words of the 2d article, taken separately from the context, are manifestly merely precatory, and not mandatory. He desired her not to sell the plantation at Cambo, if she could do otherwise, but he did not, by these words, expressly forbid a sale.
But the 3d article applies to the whole estate, as well that at Cambo as elsewhere; and its words necessarily qualify those of the 2d article. According to the idiom of our language, there can be no doubt that the expression “she is not to divest herself,” &c., is an imperative prohibition, and means that she shall not divest herself, or that power is withheld from her to divest herself, &c.
And though the will was written by a Frenchman, in French, and we may not be able to catch precisely the shade of thought which his words would convey to a French eye, yet, from the several translations with which we have been favoured, we think it pretty apparent that, by the idiom of the French, no less than by that of our own language, his words in the 3d article are not to be taken in a precatory sense, as expressive of desire, but in a mandatory sense, as expressive of will.
What is it, then, but the devise of a fee simple, with a denial of the power of alienation ? “ She is not to divest herself of what I may leave her, until after her death,” implies that she may dispose of the estate by will, which can only take effect after death, but that she shall not dispose of it by deed, which must take effect during her life. The paramount thought in the testator’s mind was to make his wife absolute owner of his estate, and he expressed this thought by sufficient words; but the particular thought was to take away from her one of the incidents of absolute ownership — in other words, that he would grant a fee, with power of testamentary disposition, but would withhold the power of alienation.
That this was his meaning is further apparent from the 4th article, which, in giving the “residue” over to the children, implied the right of consumption in the wife. This word residue, as used in this place, does not imply a residuum of estate or interest like a remainder, but a residuum of the property — or, in the testator’s own language, of “what I may have left her,” and in this sense is exactly equivalent to “ surplus,” a word which was fully considered and expounded in Pennock’s Estate, 8 Harris 282. It was there said, upon the authority of several English cases, that where it c.an be implied from the will that a discretion is left to withdraw any part of the subject of the devise from the object of the wish or request, or to apply it to the use of the devise, no trust is created, but an absolute right to use and consume exists. As the word surplus in the devise over in that case was held to imply a right in the first taker to consume the whole, so the word residue here implies that the testator’s wife was to enjoy his estate with no other restraint than that of alienation.
Such, then, is this will — the devise of an absolute estate to the wife, with all the rights of a tenant in fee, except the power of alienation, and with direction that what may remain of the property at her death may be equally divided among the children. Now, a power of alienation is necessarily and inseparably incident to an estate in fee, and therefore if lands be devised to A. and his heirs, upon condition that he shall not alien, the condition. is void: 4 Kent 131; McWilliams v. Nisely, 2 S. & R. 513; Schummacher v. Negus, 1 Denio 448. And this principle is not peculiar to persons entitled to the inheritance of lands, but applies also to the entire or absolute interest in personalty: 1 Jarman on Wills 688. A partial restriction, such as not to alien to a particular person or for a limited time, may be supported, but a general restraint of alienation, when annexed to an absolute estate, is void, upon the familiar principle that conditions repugnant to the estate to which they are annexed, bind not.
To the same effect is that other rule in interpreting wills which sacrifices the particular to the general intent, where they are inconsistent. Here the testator’s general intent was, that his wife should enjoy his whole estate absolutely, and that only the unconsumed residue should go to the children, and as his desires and expectations, however expressed, did not make her a trustee for the children, so neither can the expressions of his secondary intent, however imperative, restrict her enjoyment of the estate granted.
The judgment is afiirmed.