Miller v. McNair

Lowe, C. J.

The single question made in this case is whether in the devise made to Charlotte McOomber, the testator intended to cover his reversionary interest in lot 96 in the city of Dubuque.

It is a question of intent, to be gathered from the natural and obvious import of the words employed in the devise.

The language, “that portion of lot 96,” admits of but one construction; it necessarily implies a quantity less than the *527 whole. And it is further limited, restrained and rendered explicit by the words, “now owned by me,” because at the date of the will, the title, possession and present ownership of the north twenty feet in question were in the city of Dubuque, but were to revert to the donor, wrhen the city ceased to use the same for a market place. This interest in expectancy which itself depended upon a contingency which might never happen, is not reached by the wrords in the devise, unless they are to be wrested from their ordinary signification.

It was competent for the donor to have granted this easement without parting with the legal title and ownership of the ground. It is unnecessary for us to determine if he had done so what then would have been the legal effect of the words of the devise. It is questionable, however, whether even then under the restraining words of the devise, we could fairly infer the intent of the testator to give the reversionaryinterest to his sister. It occurs to us that if such had been His intention he could not have been at a loss for appropriate-words to express the same. If he had simply devised to-Charlotte Macomber, all his right, title and interest in lot 96, her right to the reversionary interest could not be questioned ; and the plaintiff in that event, would have had as little claim to the possession and ownership of the property in question, as we think the defendant now has through his immediate grantors.

Reversed.