Page:Federal Reporter, 1st Series, Volume 4.djvu/71

 DOWNIB P.DOWSIB. 67 �în the will that she shall enjoy the saine as though it were devised to her in fee ? The firet observation to be made on this language is that she is to have the enjoyment of it aa though it were devised to her in fee ; and how was she to have the enjoynlent of it as though it were devised to her in fee ? It seems to me, clearly, by executing the power which haa already been conferred upon her, viz. : by selling the land, and, when sold, that the deeds and conveyances shall pasa a title in fee to the purchaser. In that way she has the right to appropriate the proceeds to her use and beneût as though it were devised to her in fee. It has been assumed by th© counsel on both sides that the language which foUows that last cited means that, in case his mother died before he did, the remainder of the estate was to go to Charles Lindley Downie. I am not so clear that that is what this language means. "Should my mother die first, then, and in that case, I devise ail the remainder of my estate to Charles Lindley Downey." �There may be, I think, great force in the position that it includes not only the case of the death of his mother before bis owu death, but also the death of his mother before the death of Charles Lindley Downie, he surviving her. In no other way can we give any meaning to the words, "ail the remainder of my estate." I do not think it is material, so far as the question now before the court is concerned, whether one or the other be the true construction of this last clause of the first item of the will. I only refer to it for the purpose of showing what were the intentions of the testator — that he meant to provide not only for his mother, giving her f uU power over the property to sell the same during her life, but, also, if any remained unsold and unused by her, that it should go to the benefit of Charles Lindley Downie. And that is empha- sized by the first clause in the second item of the will: "After the death of my mother, I devise ail of the said estate to my half-brother, Charles Lindley Downey." �It is impossible, I may add, to give any effeot to this last clause of the will, upon any other assumption than that the mother had only a life estate, with the power to sell as already ����