Forbes, J.
This is a petition for partition. The petitioner alleges that she is seized in fee of the several parcels of real estate described in her petition. The seizin of the petitioner is denied by the respondents, Avho contend that she has nq legal estate in the premises. All parties claim title under the will of Windsor Fay, the late husband of the petitioner, and their rights depend upon the true meaning and construction of that will. The will is not drawn with legal precision, and in several particulars, the intention of the testator is not free from doubt. One of the most embarrassing of the duties, which the court are called on to perform, is to gather their real meaning and intent from writings, the object of which is either imperfectly conceived by the writer, or obscurely and unskilfully expressed. In the construction of wills, it is a well settled general rule, that the intention of the testator shall govern, and the intention is to be collect-[101]*101from the whole will, rather than from an isolated clause or expression. But as no two wills are precisely alike, cases frequently arise, in which but little aid can be derived from previous decisions; and the intention, when ascertained, is sometimes liable to be controlled by technical rules and the force of technical expressions.
The first clause in this will provides for the payment of the debts of the testator, and directs the sale of a certain description of property, with a view to a permanent investment. The second clause gives to the father and the mother of the testator, and the survivor of them, a life estate in the farm in New Hampshire ; it directs the executors to release them from all claims of the testator, for rents or otherwise ; and it imposes upon them the burden of taxes and repairs. The principal questions have arisen upon the provisions contained in the third and sixth clauses of the will.
The third clause is as follows. [Here the judge recited the clause as above, p. 95.]
In the construction of this clause the counsel for the petitioner contends:
1. That at common law, it would be held to be a devise of a freehold estate for the life of the petitioner; and to this point several authorities were cited.
The use and improvement of real estate, by necessary implication, imports the exclusive possession and occupancy ; and the court entertain no doubt of the correctness of this construction of the devise.
2. That if it was a devise of a freehold estate at common law, then, by force of the statute, it must be held to be a devise of an estate in fee.
The will was made a few months after the revised statutes went into operation, and is therefore to be construed with reference to the provisions of that code.
The petitioner relies upon the fourth section of the sixty-third chapter oí the Rev. Sts., which provides, that “ every devise of land, m any will hereafter made, shall be construed to convey all the estate of the devisor therein, which he [102]*102could lawfully devise, unless it shall clearly appear by the will, that the devisor intended to convey a less estate.”
The exact language of the statute is not found in this clause of the will, this not being, in terms, a devise of land; but assuming that the statute is applicable, the question arises, whether it does not clearly appear by the will, that the testator intended to convey an estate less than a fee. The proviso contained in the foregoing section regards the intention of the testator exclusively. The legislature have not required that the intention should be declared in express terms; but to avoid the danger of defeating it, by any inflexible rule of law, they have left such intention to be gathered from the will by a comparison of its several provisions and a clear deduction from them. The inference must be clear and satisfactory to the mind, and it may be drawn from particular provisions, inconsistent with an intent to give a fee, or from the general import, scheme, and object of the will. Wills being frequently made by persons unacquainted with the technical language of the law, it sometimes happened that the intention of the testator was defeated by the omission of apt words of limitation. It was the design of the legislature to remedy this evil, and they are supposed to have proceeded on the hypothesis, that in a large majority of cases, in which a less estate is not named, testators intend to give a fee; and as a general rule, presumptions in favor of the larger estate are safer, and better calculated to give effect to the intention of devisors. But while the legislature changed the rule, they were careful not to fall into the opposite error, by requiring estates less than a fee to be created in express terms; and the court, it is believed, will promote the object of the legislature, by extending the proviso in this section to all cases, in which the intent to give an estate less than a fee can be justly and fairly inferred from the provisions of a will.
In this case, the testator evidently was aware that in the absence of a testamentary disposition of his property, the petitioner would be entitled to a life estate in the realty, by [103]*103way of dower; and the several devises and bequests are made to her expressly in lieu of dower, as well as in satisfaction of all other claims on the estate. In ascertaining the duration of the estate devised, it is impossible to keep out of view the purpose for which the devise was made, and the analogy which existed in the mind of the testator between the two estates; that is, the estate created by the will, and the estate for which it was intended as a substitute. This arrangement raises a probability, at least, that the testator intended to give a life estate only.
This clause contains a bequest to the petitioner of certain personal property during her life, and of the income of other personal property during her life or widowhood ; it also contains the expression of a wish to provide amply for the petitioner, but only during her widowhood. The testator had the entire disposal of his personal property, but not of his real estate ; and in the absence of any motive to the contrary (and none is disclosed by the will), it is not to be presumed that the testator, while anxious to restrict the petitioner, in the enjoyment of the income from the personal property, to the period of her widowhood, intended to give her a fee in the real estate. It is much more probable, that if the testator had possessed the power, he would have imposed upon the devise of the real estate conditions similar to those which he annexed to the bequest of the income from the personal estate.
But further, it cannot be inferred from this will, that the testator was ignorant of the terms of art, which are appropriate, and frequently necessary to create an estate in fee. The first sentence of the third clause furnishes evidence to the contrary, for the farm in New Hampshire, after the death of the father and mother of the testator, is therein given to two of his sons, “ to be equally divided between them, to their heirs and assigns forever; ” and similar language is to be found in the sixth clause of the will. In this view, the omission of words of limitation in the devise to the petitionei is mdicative of an intention to give to her an estate less than a fee.
[104]*104The terms, in which the devise to the petitioner is made, are somewhat significant. This is not a devise, in terms, of one third part of the land, or of the real estate of the testator, but of the
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Forbes, J.
This is a petition for partition. The petitioner alleges that she is seized in fee of the several parcels of real estate described in her petition. The seizin of the petitioner is denied by the respondents, Avho contend that she has nq legal estate in the premises. All parties claim title under the will of Windsor Fay, the late husband of the petitioner, and their rights depend upon the true meaning and construction of that will. The will is not drawn with legal precision, and in several particulars, the intention of the testator is not free from doubt. One of the most embarrassing of the duties, which the court are called on to perform, is to gather their real meaning and intent from writings, the object of which is either imperfectly conceived by the writer, or obscurely and unskilfully expressed. In the construction of wills, it is a well settled general rule, that the intention of the testator shall govern, and the intention is to be collect-[101]*101from the whole will, rather than from an isolated clause or expression. But as no two wills are precisely alike, cases frequently arise, in which but little aid can be derived from previous decisions; and the intention, when ascertained, is sometimes liable to be controlled by technical rules and the force of technical expressions.
The first clause in this will provides for the payment of the debts of the testator, and directs the sale of a certain description of property, with a view to a permanent investment. The second clause gives to the father and the mother of the testator, and the survivor of them, a life estate in the farm in New Hampshire ; it directs the executors to release them from all claims of the testator, for rents or otherwise ; and it imposes upon them the burden of taxes and repairs. The principal questions have arisen upon the provisions contained in the third and sixth clauses of the will.
The third clause is as follows. [Here the judge recited the clause as above, p. 95.]
In the construction of this clause the counsel for the petitioner contends:
1. That at common law, it would be held to be a devise of a freehold estate for the life of the petitioner; and to this point several authorities were cited.
The use and improvement of real estate, by necessary implication, imports the exclusive possession and occupancy ; and the court entertain no doubt of the correctness of this construction of the devise.
2. That if it was a devise of a freehold estate at common law, then, by force of the statute, it must be held to be a devise of an estate in fee.
The will was made a few months after the revised statutes went into operation, and is therefore to be construed with reference to the provisions of that code.
The petitioner relies upon the fourth section of the sixty-third chapter oí the Rev. Sts., which provides, that “ every devise of land, m any will hereafter made, shall be construed to convey all the estate of the devisor therein, which he [102]*102could lawfully devise, unless it shall clearly appear by the will, that the devisor intended to convey a less estate.”
The exact language of the statute is not found in this clause of the will, this not being, in terms, a devise of land; but assuming that the statute is applicable, the question arises, whether it does not clearly appear by the will, that the testator intended to convey an estate less than a fee. The proviso contained in the foregoing section regards the intention of the testator exclusively. The legislature have not required that the intention should be declared in express terms; but to avoid the danger of defeating it, by any inflexible rule of law, they have left such intention to be gathered from the will by a comparison of its several provisions and a clear deduction from them. The inference must be clear and satisfactory to the mind, and it may be drawn from particular provisions, inconsistent with an intent to give a fee, or from the general import, scheme, and object of the will. Wills being frequently made by persons unacquainted with the technical language of the law, it sometimes happened that the intention of the testator was defeated by the omission of apt words of limitation. It was the design of the legislature to remedy this evil, and they are supposed to have proceeded on the hypothesis, that in a large majority of cases, in which a less estate is not named, testators intend to give a fee; and as a general rule, presumptions in favor of the larger estate are safer, and better calculated to give effect to the intention of devisors. But while the legislature changed the rule, they were careful not to fall into the opposite error, by requiring estates less than a fee to be created in express terms; and the court, it is believed, will promote the object of the legislature, by extending the proviso in this section to all cases, in which the intent to give an estate less than a fee can be justly and fairly inferred from the provisions of a will.
In this case, the testator evidently was aware that in the absence of a testamentary disposition of his property, the petitioner would be entitled to a life estate in the realty, by [103]*103way of dower; and the several devises and bequests are made to her expressly in lieu of dower, as well as in satisfaction of all other claims on the estate. In ascertaining the duration of the estate devised, it is impossible to keep out of view the purpose for which the devise was made, and the analogy which existed in the mind of the testator between the two estates; that is, the estate created by the will, and the estate for which it was intended as a substitute. This arrangement raises a probability, at least, that the testator intended to give a life estate only.
This clause contains a bequest to the petitioner of certain personal property during her life, and of the income of other personal property during her life or widowhood ; it also contains the expression of a wish to provide amply for the petitioner, but only during her widowhood. The testator had the entire disposal of his personal property, but not of his real estate ; and in the absence of any motive to the contrary (and none is disclosed by the will), it is not to be presumed that the testator, while anxious to restrict the petitioner, in the enjoyment of the income from the personal property, to the period of her widowhood, intended to give her a fee in the real estate. It is much more probable, that if the testator had possessed the power, he would have imposed upon the devise of the real estate conditions similar to those which he annexed to the bequest of the income from the personal estate.
But further, it cannot be inferred from this will, that the testator was ignorant of the terms of art, which are appropriate, and frequently necessary to create an estate in fee. The first sentence of the third clause furnishes evidence to the contrary, for the farm in New Hampshire, after the death of the father and mother of the testator, is therein given to two of his sons, “ to be equally divided between them, to their heirs and assigns forever; ” and similar language is to be found in the sixth clause of the will. In this view, the omission of words of limitation in the devise to the petitionei is mdicative of an intention to give to her an estate less than a fee.
[104]*104The terms, in which the devise to the petitioner is made, are somewhat significant. This is not a devise, in terms, of one third part of the land, or of the real estate of the testator, but of the use and improvement of a third part. It was, indeed, contended for the petitioner that the word “ use ” was to be taken in its strictly legal and technical meaning. But we perceive no satisfactory reason for such a construction; its collocation in the sentence and its connection with the term “ improvement ” lead to the conclusion, that both words were used by the testator in their more general and popular acceptation, and that they refer to a temporary occupancy of the land, rather than to an estate in it, coupled with the power of alienation. These words are not, ordinarily, selected to convey a permanent interest in land, nor is such their natura, import or meaning. In the case of Barnes v. Porter, 4 Pick. 204, C. J. Parker said, that “ the use of the word improvement may have a considerable tendency to show that a fee simple was not intended to be given; ” and the same remark, we think, is applicable to the word “use,” as it stands in this clause of the will. A different construction of the terms here used, in violation of the common use of the language, may sometimes be permitted, in order to give effect to the evident intent of a testator; but after all, it is a departure from the ordinary force and effect of the terms, and to be resorted to for the purpose of promoting, not for the purpose of defeating, the apparent objects of a will. For these reasons, connected with the general design and objects of the testator, as disclosed in this will, the court are of opinion, that the petitioner is entitled to an estate for life in the premises, and not to an estate in fee.
But on the supposition that this might be the true construction of the third clause, if it stood alone, the respondents contend, that this clause is controlled by other parts of the will, and that the legal estate is thereby vested in the trustees. In support of this position, they rely principally upon the seventh clause, which is a^ follows: “ And 1 do hereby authorize and empower my said trustees or the sue[105]*105cessor of them to grant and sell the whole or any part of my estate, real or personal, with full power to execute any deed or deeds effectual in law to pass a complete title thereto, at and for such prices as they may deem proper; -but the avails thereof are to be by them retained and held for the same uses and purposes as the lands or other property would be held by the trusts before created.”
The trusts referred to are created by the sixth clause, and embrace “ the residue and remainder ” of the testator’s estate, undisposed of by the preceding clauses, among which is the devise of real estate to the petitioner. There appears to be a well settled distinction between a devise of land to executors to sell, and a devise that executors shall sell, or that land shall be sold by them. A devise of the first description gives a power coupled with an interest, and the estate passes to the executors; but the latter are instances of a naked power. It has been held, and is probably the better opinion, that a devise of the land to be sold by the executors confers a power without any interest. 4 Kent, (5th Ed.) 320. And if, upon a just construction of the will, the power to sell can be held to extend to the real estate devised to the petitioner,—a point upon which we give no opinion, —still we do not perceive any necessary implication by which the legal estate is vested in the trustees. In the case of Bradstreet v. Clark, 12 Wend. 602,—an authority much relied on by the respondents,— there was a devise to the executors, in terms, as joint tenants - and the opinions of two senators in ¡Shaube v. Jackson, 2 Wend. 1, are not very satisfactory evidence of the law, especially as one senator repudiated the ground upon which the other senator had based his opinion; and the opinions of both senators are in conflict with the doctrine of the chancellor, and the decision of the judges of the supreme court of the state. 7 Cow. 187.
It was said in the argument for the respondents, that the following provision was equivalent to a declaration that the petitioner was interested in the real estate as cestui que trust, viz. “ In trust, in the second place, to pay over quarterly the [106]*106rent, income and interest of the said residue of my estate, including and embracing that the use whereof is devised to my wife.” And if this were the whole of the provision, it would certainly countenance that view of the case, inasmuch as rent is properly incident to real, and not to personal estate. But upon a comparison of the whole clause with other parts of the will, we think that there can be no ground for the inference. The third clause gives to the petitioner the income of one third part of the personal estate during her widowhood, and provides that, upon her marriage, this income shall fall into the residue of the testator’s estate, and shall be disposed of in the manner thereinafter to be set forth in the residuary clause. In the residuary clause, and immediately preceding the declaration above cited, the trustees are directed to pay over to the petitioner, quarterly, the income and interest of one third part of the personal estate, during the term of her widowhood; and to render the sentence, cited and commented upon by the respondents, perfect, the words “ during widowhood, when the same shall fall in,” are to be added. But it was contended that either the word “ rent ” or the words “ during widowhood ” must be rejected on the ground of' repugnancy. In our opinion, such a construction is not necessary, or even plausible. The clause embraces “ income and interest,” as well as “ rent; ” and these terms may be taken distributively. Unexplained, the estate, the use of which was given to the wife, might be personal or real r if real estate, the rent of it was to be included, if personal, the income. By adding the words “ during widowhood; ” a reference to the income becomes manifest. These words were evidently added by design, and by the use of them, the meaning of the testator is rendered clear and definite, which otherwise might have been equivocal. In the judgment of the court, the trust does not extend to the real estate which was devised to the petitioner.
Another objection was made by the respondents. It was said that the power to sell embraced the estate devised to the petitioner; and as the power might be executed at any time. [107]*107it left an estate not fit for partition. Whether the power tc sell extends to the estate devised to the petitioner or to the remainder, or however else it may be limited, we do not think material to the decision of the present case. If such a power exists, it does not preclude the right of partition. The petitioner is, in any view, seized of an estate which may continue during her lifetime, and, by the provisions of the statute, (Rev. Sts. c. 103,) is entitled to partition. If the power to sell exists, it may never be executed; and certainly it is not to be presumed, that the trustees would sell without a due regard to the interests and convenience of the petitioner as well as of the other devisees.
The petition must be made to conform to the views of tht court by an amendment, after which, judgment for partition may be entered.