Mr.. Justice M'Lean
delivered the opinion of the Court:
This is an appeal froin the decree of the Circuit Court for the District of Columbia.
The complainant filed his bill, stating that, as devisee of James Walker, he claims the fee in lot numbered six, in square one hundred and six, with all the improvements thereon, in t the city of Washington; and also under a deed- fioraMargaretand James Peck, lots numbered twenty-one and- twenty-two, in the 'same square, which lots wére devised to the said Margaret in the samé will. And that the wife of the devisor, since intermarried with George Parker, claims.under, the will one-third of the above property during hey life, and that at her death it shall go to the son of the deceased named in the will.
And the complainant insists . that he is entitled'to the whole of the property, free from the claims of the wife of the devisor or her son; and he prays that the Gourt may so decree. But if the Court should think that he is only entitled to two-thirds of the .property, then he asks a division of it, or that it may be sold, as shall be deemed proper.
The wife of the devisor and her present husband, and the infant son, by guardian, assert their interest in one-third of the premises in their answers; and are opposed to a sale or division of the property because, among other reasons, it would be prejudicial to the interest of the infant son and devisee of the deceased.
Almost every part of the. will has some bearing on the question raised by the complainant.
In his first devise, the testator says, " I béqueath' and give to my dearly beloved wife, Ann Sophia Walker, one-third of the whole of my personal estate forever, for her own proper usé and benefit; and also one-third of my real estate during herlifetime; and inthe event of her death, all the right in real property hereby bequeathed to her, shall be, and is hereby, declared to be vested in my dear and infant son; James Walker."
Hé'then gives to his mother, "forever," a certain lot with its improvements. And then follows the devise to the complainant in these .words: " I bequeath and give to my dearly beloved brother, John Walker, for ever, all .of lot numbered six," &c. The devise of the two lots to Margaret Peck is, that they shall -be " her property forever."
Several other devises of real property are made in the same form, to His brothers and-sisters; and then he says, "I bequeath and give to my déar infant son, James Walker, lot numbered twenty-two, in square numbered three hundred and fifty-twó," &c. " I also bequeath to him forever, the balance of my real estate, believed to be and to consist in lots numbered six, eight and nine, in square one hundred and sixteen, lots thirty-one, thirty-two and thirty-three, in square numbered one hundred and forty; lots numbered eight and eleven in square numbered two hundred and fifty, and lot numbered twenty-eight in square numbered one hundred and seven."
It is contended by the counsel for the complainants, that the specific devises to the brothers and sisters of the deceased, show his in tention to give to them the property devised, clear of all encttmbrance; and that the devise of the real estate to the widow, must be Satisfied out of the residuary devise to' the infant son of the deceased.
The devises are inconsistent with each other, but they are not entirely so. The whole of any specific property is not devised to each of two devisees. The devise of one-third of his real estate to his wife, and at her death to his son, is, to this extent, inconsistent with the specific devises which follow, and which dispose of all his real estate. '
The devise of the " balance" of his real estate to his infant son, goes on to describe particularly the property.
From Ms first devise to his wife, there can be no doubt that the. testator intended- to give her what the law allowed her to take, And it cannot be supposed that by the subsequent specific- devises, he designed to defeat this arrangement. It is equally clear that he intended, on the death of his wife, that the property devised to her should go to his son.
The construction urged, that "all the right in real property hereby bequeathed to her," shall go to his son, means a life estate only in one-third of the real property, to -the son, cannot be sustained. The words, "all the right," fairly import the entire- or perfect right, " in the real property given to his wife." This reference to the devise to the wife, is descriptive of the extent of the property to be vested in fee in the son.- The right of his- wife was to terminate at her death, and it would be inconsistent tó suppose that the testator would dispose of the same right, and no more, to his son.
This devise to his wife and son is a leading devise in the will. It was first in the mind of the testator, and must limit and control the other devises. The devises to the son are as specific as tho'se to other persons; and there would seem to be little or no ground for the construction, that the devise to the wife must be satisfied out of the devises to the son. One-third of the entire real estate is. given to the wife, and on her death this third goes-to the son; and in the conclusion of the will certain lots are also specifically devised to the son. The son, in common with the other devisees, takes the lots specifically devised to him, subject to the devise of oné-third to his mother, and at her death he takes this third of these lots; and onéthird of each specific devise in the will.
This construction gives effect to the different devises of the will; and it would, seem to be the only mode by which the intention of the testator can be effectuated. And. it, is in accordance with' that well settled rule in the construction of wills, which regards the in-, terest of-the heir at law.
With the exception of the devises to the wife and son, all the deyises are collateral, and take the property from ff\e line of descent, established by law.
If the complainant can hold the lots claimed by him free from the devise to the wife of the testator, by the same rule every-other devisee in the will must hold in the same manner. And this would defeat the leading devise, for the entire real estate is specifically'disposed of in the will.
Ifthe devise to-the wife he thrown upon the specific devises'to the son, it not only violates the rule which it is claimed. exempts the specific devises from this devise to the • wife 5 but supposes that the testator first devises to his wife and. son one-third of his real estate, and then at the conclusion of' his will .gives specific devises to his son, which are intended wholly as to him to annul the first devise.
This construction would do injustice to the language of the .testator, and defeat his intention.
•Had. the widow taken a life estate under the law,' her interest of one-third would have extended to every part of the real property of her deceased husband. And as the devise is made in as general terms as the statute which gives dower, it must-have the same effect.
This construction of the will defeats the main object of the complainant's bill. But his counsel insists that the part, devised to the wife should be set off, or the sale' of the property ordered..
The bill does not seem to have been framed with a view to a partition or sale of the estate- Several of the devisees, all of whom are interested in such a proceeding, are not made parties. And a partition or sale is opposed by the infant son and his mother, as injurious to his interest. And the rights of the mother and son are so intimately blended, that any proceeding which shall affect the life estate must affect the inheritance.
A partition or sale of. this, estate is regulated by the statutes of Maryland.
The 12th section of-the act of 1785,-chapter':7£,-provides, that wheré an infant has an interest iii lands, and it shiill -appear to the Chancellor upon application , of any 'of tbe parties Concerned, and upon the appearance of the>infant, that it shall he to' the interest./ and advantage of the infant, to have the land sold; be may order a ° sale.
And in the 8th section of the act of 1794, eh. 60, if is provided, on a similar application and appearance of the infant, as stated in the above statute, for a partition, if the Chancellor, "upon hearing $nd examining ail the circumstances, shall think that it will be for the interest and advantage of all parties concerned;" he may order a-partition.
In this ease there is no evidence which will enable the Court to judge whether a sale or^partition of the property, would be to the advantage of the infant and the other parties. -. And it should hardly be expected that this Court, in the. absence of aB evidence; should decree either of these alternatives against the answer-
The complainant may be subjected to some, inconvenience by holding the property as tenant in common with the devisee of the testator; but it .was a condition imposed by the terms of the will. And this Court, acting under the law of Maryland, cannot remedy this inconvenience; unless the complainant shall bring himself clearly within the provisions and policy Of that law.
The decree of the Circuit Court dismissing the bill is affirmed with costs.