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preclude him from thereafter raising any. But his agreement shows that the debt remained unpaid, and that, knowing the proceedings were pending and without suggesting any objection to them, he stipulated for their completion. The reasons on which a party in interest is allowed to purchase at a judicial sale whereby he must become answerable for his bid, are inconsistent with the notion that the proceedings have resulted in nothing more than a continuance of the trust for the same whole debt. We think the legitimate result of the foreclosure proceedings was to transfer the trust to the proceeds of the sale; for by assigning the Bissell debt and mortgage, Butler must have contemplated that the consequence must be that upon his default this transmutation of his interest by foreclosure of the mortgage and the sale of the mortgaged property would be likely to ensue.
We are aware that in Slee v. Manhattan Co., 1 Paige (N. Y.) 48, it was held in substance by Chancellor Walworth that in a case where the assignee of a mortgage becomes the purchaser of the premises at a sale made under a power given by the mortgage, that, the assignee having become the purchaser at his own sale, there was no transmutation of the interest of the mortgagee; that his interest in the mortgage "remained untouched by that foreclosure,” and that the purchaser had acquired thereby only the equity of redemption. The learned chancellor further indicated his opinion that the same consequence would ensue in the case of an assignee of a mortgage bidding in the property at a sale under a decree in a suit brought by him to foreclose the mortgage. This was obiter. But the case has been accepted by the courts of New York as authority for the application of the doctrine to judicial sales, as well as to sales under a power in the mortgage deed. The chancellor in his opinion admitted that the authority to execute the power was vested in the assignee “by the mere act of the assigning the legal interest in the mortgage,” and that if the assignee in the fair execution of the power had sold and conveyed the premises to a stranger for one-half the amount of the debt, the assignor would have been bound to pay the balance of the debt, and would have had no claim to redeem the mortgaged premises from such purchaser; "that he must have understood that the defendants (the assignees) had a right to foreclose under the statute. The premises were advertised and sold with his full knowledge of the facts, and he made no objection that they were not thus authorized to proceed.” And the chancellor further says that if the assignee had foreclosed in chancery, "a stranger purchasing under the decree, would unite the legal estate which is in the defendants [the assignors] with the equity of redemption of the mortgagors sold under the decree and thus acquire the whole estate which existed in the mortgagors previous to the giving of the mortgage.” But because the premises were bid off by the assignee (in that case they were sold to a person who was an agent of the assignee, who conveyed them to his principal) the chancellor held that the assignor's interest had not been cut off by the sale. This is opposed to the decision in Richards v. Holmes, supra. There might be good reason for holding in such a case that if any injury had been done to the assignor in consequence of the assignee's bidding, the
former could have elected to disaffirm the sale. But the dictum that the sale to the assignee under a decree would be ineffectual to pass the title of the assignor, and the distinction made between a purchase by the assignee, and one made by a stranger cannot be supported, when it has been admitted that the assignee may bid at the sale. In such a case the thing sold is not one thing if sold to a stranger and another thing if sold to an assignee. They were not bidding for different things, and the deed of the master is for the thing sold.
Coming, then, to the agreement of October 4, 1844, it is apparent that Butler knew that Anderson had bid off the property, and he consented that the sale should go on to its consummation. It was not stated that the expected deed should be affected by a trust, and the insistence with which Anderson, by the stipulation of his contract, held on to the benefits of his purchase is indicative of his understanding in making the agreement, and it was indicative to Butler of Anderson's expectation. The latter relinquished the control of his other securities and gave Butler the power to discharge Bissell's liability upon his note. It seems singular that Anderson would have practically stripped himself of the control of everything else in the nature of a security to a slow debtor for so large a sum as $29,000 unless he were to gain some substantial advantage under his purchase at the master's sale. And it is noteworthy that in the deeds which Butler obtained from the sons of Henry Anderson after the latter's death and which deeds will hereafter be more particularly considered, they are moved to recite that Henry Anderson took the title to said lands as security for Butler's debt and that he died without “having made or executed any declaration in writing of the purpose for which said property was held;" which seems to indicate that such a declaration was due and expected, and the inquiry is pertinent, why, if there was such an understanding, nothing was said about it in the agreement of October 4, 1844. Butler seems to have been very watchful for his own interests, and it seems unlikely that so important a matter should have then been overlooked and not taken care of until several years after Anderson's death and only developed while the trustees were settling his estate. But the material circumstance, now to be regarded, is that there is no fact agreed, or finding by the court which imports any qualification of the legal effect of the foreclosure proceedings, the agreement of Butler and Anderson made pending those proceedings, and the master's deed following thereon. We have given detailed exposition of special facts for the reason that it is proposed to fasten a trust upon the deed in question by proof of subsequent transactions and thereby raise an equity which would entitle the defendant to the possession of the premises notwithstanding it should be held that the plaintiff has the legal title. We think it must be held that at the time of Henry Anderson's death he held the legal title to the lands in question unaffected by any trust in favor of Butler. On February 28, 1846, Henry Anderson made his will
, and on the 3d day of April following he died, being then a resident of Mississippi. He was at the date of his will and at the time of his death a widower.
He left two children only, William, born February 12, 1828, and James H., born June 25, 1831. The parts of this will which are now material are here set forth:
"I, Henry Anderson, do make and ordain this to be my last will and testa. ment. I declare my domicile to be the town of Holly Springs, Marshall Countty, State of Mississippi. I revoke the will made by me on the 3d of March, 1837, and all other wills, if any there be.
"Item. I give, devise and bequeath to Peter Anderson, Walter Goodman and Peter W. Lucas all my property, both real and personal, legal and equitable in possession, reversion or remainder, and all claims and demands whatsoever, except such right, title or claim to land, money or choses in action as I may be entitled to as one of the agents of the American Land Company and as one of the stockholders of said company; this property they shall hold in trust, and if one or more of them die, the survivors or survivor shall hold in trust for the following purposes: They shall pay my debts, other than such as may be owing to the American Land Company, out of moneys on hand and such property as may be sold least injurious to my estate. I wish them to collect debts due to me and apply to this purpose. They may, if they think fit, and can, obtain an extension of time on any debt, and they may pledge my property to raise money to pay debts. They may sell for cash or on credit, and if at any time they have funds on hand not required for debts or legacies they may invest the same. They shall have full power to make titles for property sold and to pay charges for preservation, and in all respects have the power of owners, but always as trustees. I have entire confidence in each of them, and therefore give each the power of all, so that each may do separately what all acting together may do, except in making investments; in that I wish all to join. The annual accounts of my said trustees, signed by their respective names, shall be binding on my heirs and shall be conclusively so unless error or fraud be clearly established. I have directed the payment of debts other than what I may owe the American Land Company.
ompany. I exclude the debts to the company because that is subject to an account with the company, and I do not wish my trustees to make payments before that account is adjusted. The adjustment of that account, and the direction and management of the affairs of the company, so far as I have power, right or interest, I place in the hands of Peter Anderson and Walter Goodman, and when they have finally closed it, it shall become a part of the trust created by this article of my will and subject to the control of my said trustees. By saying 'it shall become a part of the trust,' I mean the effects and proceeds that I may be entitled to as stockholder and agent of the company.
"Item. It is my will that when my son William arrives at the age of twenty-one years the trustees of the first and general trust shall deliver to him a settlement of the affairs of the trust, and if my debts are then paid, and as soon as that takes place, they shall put him in possession of one-half of my property, reserving thereout two-fifth parts of said moiety by valuation, which my said trustees shall hold in trust and properly invest and pay over to him at the age of twenty-five years. If my interest in the American Land Company be not brought into the general trust at the time William becomes twenty-one, but is brought in at any time before he arrives at twenty-five, so soon as brought in, two-fifths shall be deducted therefrom and invested and paid over to him at twenty-five, the other three-fifths he shall have as soon as paid in. I find the above does not express my will in this: When I say two-fifths shall be deducted from the interest I may have in the land company for investment, and three-fifths to be paid to him, I mean two-fifths of a moiety shall be deducted and three-fifths of a moiety paid over.
“And it is my will that my said trustees hold and invest and pay over the remaining moiety of my estate to my son James at the respective periods of twenty-one and twenty-five years of age, being governed as to the amounts to be paid at each of the respective periods by the same rules and directions as are above laid down in the bequest to William, and to be governed in all other respects by the regulations laid down concerning the same.
“If either of my sons die without lineal descendants, the one surviving shall take his estate above bequeathed, and, if the survivor dies without lineal descendants, then one-half both of the decedent's original portion, as well as onehalf of the portion taken by survivorship, shall go to by brother Peter, the other half to such of my brothers and sisters as may be living at the time of the death of such surviving son. If my brother Peter be not living at the time of the death of my surviving son, so dying without lineal descendants, then the share he would have taken, if living, shall go to his children living at the time of the decease of my said son, and if there be no children surviving, then the share shall go to my other brother and sisters surviving at the time of such decease of my son. I make the following explanation: The limitation over on the death of my surviving son without lineal descendants is intended to take effect if there be no lineal descendants living at the time of the decease of such son. Nothing in the foregoing will shall be construed as to deprive either of my sons disposing of their portions by will on their attaining the age of twenty-one years, respectively. The above limitations over shall give way to the provisions of such wills."
This will was duly probated in Mississippi, and an authenticated copy of the will and of the probate thereof were thereafter duly filed in the probate court of Lucas county, Ohio, where the will was duly admitted to probate and record as a will from another state. The construction of this will of Henry Anderson is the next subject which engages our attention. The particular question is, what did the testator intend by the words of the will:
"If either of my sons die without lineal descendants, the one surviving shall take his estate above bequeathed, and if the survivor die without lineal descendants, then one-half both of the decedent's original portion as well as one half of the portion taken by survivorship shall go to my brother Peter, the other half to such of my brothers and sisters as may be living at the time of the death of such surviving son. If my brother Peter be not living at the time of the death of my surviving son, so dying without lineal descendants, then the share he would have taken, if living, shall go to his children living at the time of the decease of my said son, and if there be no children surviving, then the share shall go to my other brother and sisters surviving at the time of such decease of my son."
The other language of the will is important only as it sheds light upon the testator's meaning by the use of the language quoted. The plaintiff, who is the lineal descendant of the testator's surviving son, James H. Anderson, claims that the testator intended to give to each of his sons a life estate in his moiety with a remainder over to the survivor of the one first dying, in the event of his dying without lineal descendants, and to the survivor a life estate in both moieties with remainder over to the lineal descendants if such should be living at his death, and if not, then to the testator's brother Peter one-half and to his other brother and sisters one-half, or, if Peter should not then be living, to Peter's children, if any, and if there be none, then to the surviving brother and sisters of the testator. If this is correct, the plaintiff took an estate in remainder in both moieties on the death of his father, James H. Anderson. The defendant claims that the testator intended that each of his sons should take a fee simple in one moiety, which would be defeated by his death without lineal descendants, in which event the surviving son should take a fee simple in that moiety which with the fee simple in his own moiety would be defeated by his dying without lineal descendants, in which event, the whole estate
would go to the testator's brother Peter, etc.; in other words, that each of the two sons of the testator took an estate in fee simple, which would be defeated if the survivor died without lineal descendants, whereupon the testator's brother Peter and the other collateral relatives would take the estate by way of an executory devise.
The rule by which the court will be guided is stated by Chief Justice Marshall in Smith v. Bell, 6 Pet. 68, 75, 76, 8 L. Ed. 322, 325, as follows:
“The first and great rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law. 1 Doug. 322, I W. Bl. 672 et seq."
And this statement has been repeated and confirmed in many subsequent cases. Brant v. Virginia Coal and Iron Co., 93 U. S. 333, 23 L. Ed. 927; Blake v. Hawkins, 98 U. S. 324, 25 L. Ed. 139; Giles v. Little, 104 U. S. 296, 26 L. Ed. 745; Colton v. Colton, 127 U. S. 309, 8 Sup. Ct. 1164, 32 L. Ed. 138; Hardenberg v. Ray, 151 U. S. 126, 14 Sup. Ct. 305, 38 L. Ed. 93; Home v. Noble, 172 U. S. 391, 19 Sup. Ct. 226, 43 L. Ed. 486; Adams v. Cowen, 177 U. S. 475, 20 Sup. Ct. 668, 44 L. Ed. 851; Robbins v. Smith, 72 Ohio St. 1, 17, 73 N. E. 1051.. And in order to "attain the general intent,” said the court in Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 7 L. Ed. 617, “words of limitation shall operate as words of purchase, and words of implication shall supply verbal omissions."
Another rule in the construction of wills is that we are to put ourseives in the place of the testator and search all parts of the will in order to gather his meaning in the use of the words employed in the particular parts of it. If, by so doing, we become convinced in regard to his general purpose, we use that light in preference to arbitrary rules. But if the testator's meaning cannot be clearly discerned, we are at liberty, and, generally for the sake of certainty in the possession and transmission of estates, required, to apply such rules of construction as have by long usage been approved and used. It often happens that in wills in which the provisions are complex and elaborate, especially in such as are written by testators themselves, implications are seen where the testator has assumed as understood what he has not in terms expressed; and in such case, if the implication is clear, it has equal effect, as if the purpose had been expressed in words. The relevancy of these observations is found in undertaking to determine what consequences the testator intended when he said, “If either of my sons die without lineal descendants the one surviving shall take his estate above bequeathed, and if the survivor die without lineal descendants, then” to his collateral relatives. Now, we cannot but think that to the common understanding this language would convey the meaning that in the other alternative—that is, if the sons should leave lineal descendants—it was intended that they should take, and that it was only in the event of their not leaving lineal descendants, that the estate should go over to collateral relatives. The reason which gives force to the familiar rule of construction, that the inclusion of one alternative is the exclusion of the other, and vice versa,