A testator by his will, executed in 1885, provided: "I give and bequeath to my beloved wife M. all of my estate, . . . except as hereinafter named, to her for her own use and benefit and behoof forever, as long as she shall remain my widow; "To have and to hold the same, with all the rights and privileges thereof, to her the said M. her heirs and assigns forever. "But in case my said wife shall marry again at any time after my decease, then I give and bequeath all of my real estate, however or wherever situated, to J., to and for his own use, benefit, and behoof forever." Then followed certain specific and pecuniary bequests, among the latter one to J. of $2,000. The final disposing clause of the will was: "I also give and bequeath to the said J. all the rest, residue, and remainder of my estate left after the expense of settling my estate be paid." Held, that the wife M. took the entire estate after payment of debts and legacies, pecuniary and specific, to hold subject to the defeasance in favor of J., who, in case of her remarriage, would receive the estate both real and personal.
PER CURIAM.
Our opinion is, that under the will of Ira Harvey his widow, Mary Harvey, takes the entire estate, less so much thereof as is necessary to answer the requirements of the first clause, to pay the pecuniary legacies in trust and other, these legacies being excepted by the words "except as hereinafter named;" but that she takes the same subject to defeasance by her marriage, in which event the real estate will go to James G. Harvey by the specific devise over, and the personal estate given primarily to her will go over to him under the residuary clause. Under that clause he would also have taken any lapsed legacies, if there had been such. This construction may not be entirely clear, but it seems to us the most reasonable of which the will is capable. It will be observed that the will gives to James G. Harvey a pecuniary legacy of $2,000, which we cannot suppose the testator would have given in that form if he had meant for him to take the entire estate, less debts and pecuniary legacies, under the residuary clause.
It also seems very clear to us, from the language of the will, that the testator intended a special and substantial benefit to the wife in the early clause of the will, and could not have intended to defeat it by the residuary clause. We therefore decide that the executor shall pay over to Mary Harvey what remains after satisfying the requirements of the first clause of the will and the pecuniary and specific bequests.