Cole v. Clayborn

1 Va. 338

• Court: Court of Appeals of Virginia
• Decided: April 15, 1794
• Status: Published

Opinion

Lyons, J.

delivered the opinion of the Court.

There is no difficulty in this case. A testator may carve out as many particular estates from the fee simple interest in the property disposed of, as he pleases; and, whatever part is*not specially given away, remains with him. If he disposes of the rest and residue of his estate, such remnant will pass, unless restrained by other parts of the will. There are no words in this will which limit the general operation of the sweeping clause. All the rest of his estate, means every thing over which he had a power ; and his intention, so far from appearing to control these general expressions, seems to favour the operation of them in their greatest latitude. The testator had no doubt an equal affection for all his children. They are all equally provided for by the will, and it can hardly be presumed that he would leave a part undisposed of, in order that it might descend to the heir at law, who was otherwise provided for.

This case is not like that of Kennon v. M'Roberts, in this Court, [ante, p. 96.) In that, the intention was very clear.

Judgment affirmed.

(1)

Read v. Payne, 3 Call. 225.