Wright, Administrator, v. Jones et al. "First. My executor shall have and take possession, charge and control of all real estate held by me at the time of my death, and of said house and lot No. 488 North Illinois street at the death of my husband, if he shall survive me; and he shall use and rent the same in such way and manner as he may deem best and most advantageous to my estate, and out of the income thus arising from year to year, he shall pay all taxes, assessments and repairs on or against any or all of said real estate, and the net income thus arising therefrom shall be held by him and used and applied in the same way and manner as the income of my personal estate. "Second. If, at any time during the life of my said husband, he and my said daughters shall deem it best that said real estate, or any part thereof, should be sold, and if, after the death of my said husband, my said daughters, or the survivor of them, shall so wish, then, on such wish being made known in writing to my executor, the whole or such parts. may be sold by said executor, from time to time, under the order and supervision of the proper court having jurisdiction over such executor, as may be deemed best, and the proceeds realized from any and all sales shall be by said executor added to and held in trust for the uses and applied in the manner as my personal estate." same The answer further alleges that Louisa J. Jones died on the 16th day of February, 1879; that her will was duly admitted to probate; that immediately after the will was probated, the executor surrendered to Jesse Jones the property devised to him; that the latter elected to receive the property in lieu of his interest and right in the estate of his deceased wife, and that it was so delivered to him by the children and trustee of the testatrix. The first question in natural order is as to the proper construction of the will. If it does not assume to divest Jesse Jones of all interest in the estate of his wife, except that especially devised to him, then, without further inquiry, the principal and decisive point involved in this controversy must Wright, Administrator, v. Jones et al. be resolved in favor of the appellant. Our conclusion is that it does assume to cut him off from all other interest except that specifically devised to him. We put our conclusion upon this general principle: Where a will assumes to dispose of the entire estate of the testator, does dispose of it in terms, does devise the entire estate in trust for beneficiaries expressly named, carves out for a designated devisee a life-estate in a particular piece of property, and directs that the remainder shall, after the expiration of the life-estate, fall into the trust for the beneficiaries designated, it devises to the person for whom the life-estate is carved out that particular estate, and nothing more. This principle is founded on the fundamental one that undergirds all the doctrine of the construction of wills, and this fundamental principle is, that the intention of the testator rules upon all questions of construction. The principle that courts must ascertain and execute the intention of the testator is an elementary one, and needs no more than its statement to command approval. To deny the principle which we first stated involves a denial of this cardinal principle which lies at the foundation of the chief rule for the construction of wills; since it is evident that if the fee in all the property of the testator is disposed of by a devise to a trustee, nothing remains in the devisee to whom a life-estate is devised except that particular estate, for the remainder in fee goes with the other property into the trust. It is inconceivable that a testator should, in clear words, devise all his estate in fee to a trustee, and yet vest in a devisee, to whom is given a life-estate, a fee in part of the same property devised in trust for the beneficiaries named. No reasoning can be valid which assumes that all of the fee of all of the property of a testator can be devised to a trustee, and yet a fee in onethird of the property vest in a devisee to whom a life-estate is devised in clear and unambiguous terms. To restate our original proposition in a somewhat different form: Where all of the fee of all of a testator's estate is devised to a trustee, and a life-estate in part of it is carved out for a designated Wright, Administrator, v. Jones et al. devisee, with the remainder in fee vested in the trustee, the devisee of the life-estate takes no greater estate under the will than that carved out for him. The will under examination would be thrown into irremediable confusion, the intention of the testatrix thwarted, and an irreconcilable inconsistency be produced between its provisions, if the theory of the appellant, that it devises a life-estate to the husband and also leaves in him one-third of the land in virtue of his right as surviving husband, should be adopted; on the other hand, the opposite view carries into effect the intention of the testatrix, prevents all conflict between the different parts of the instrument, and makes its provisions clear and consistent from the beginning to the end. The one result it is the duty of the courts to avert; the other it is their duty to bring about, if it can be done without doing violence to the language of the instrument. Much stronger the reason for bringing about this latter result, where the language is well chosen and unambiguous and the intention clearly and adequately expressed. We find no decisions directly in point, but we do find cases closely analogous; so much so, indeed, as to declare the principle which rules the case. The cases to which we refer are those in which it is held that where the provisions of the will are clearly inconsistent with the right to dower, the widow will be put to an election. The common law authorities generally agree in holding that, as Redfield expresses it, "It must be reasonably clear that the provisions of the will were intended in lieu of dower." 2 Redf. Wills, 353. Some of the authorities state the rule in stronger terms. 1 Pomeroy Eq. Juris. 541; Kelly v. Stinson, 8 Black f. 387; Young v. Pickens, 49 Ind. 23; Holdich v. Holdich, 2 Y. & C. Ch. 18; Strahan v. Sutton, 3 Vesey, 249; Lasher v. Lasher, 13 Barb. 106; Carroll v. Carroll, 20 Texas, 731; Fuller v. Yates, 8 Paige, 325; Brown v. Caldwell, 1 Speers Eq. 322. Much as the law favors the right of dower, and strong as are the rulings in favor of it, yet it is nevertheless held that where the will on its face clearly shows that the intention Wright, Administrator, v. Jones et al. was that the provisions of the will should be in lieu of dower that intention will prevail. The question received consideration in Stewart v. Stewart, 31 N. J. Eq. 398 (1 Am. Probate Cases, 168), and it was said: "A wife will be put to her election between a testamentary disposition in her favor and her dower, when it clearly appears from the will that the testamentary provision was intended as a substitute for the legal one; and the intention will be implied if the claim of dower would be clearly inconsistent with the will." In a similar case it was said by the Court of Appeals of New York, in speaking of the rule that dower is not barred unless the intention to bar it is clear, that "The intention need not be declared in express words. It may be implied, if the claim of dower would be plainly inconsistent with the will." Savage v. Burnham, 17 N. Y. 561, 577. These authorities, to which many more might be added, express the general opinion of the courts and text-writers, and it only remains, in the discussion of this branch of the case, to ascertain whether there are authorities declaring that a will, framed as the present is, can be said to clearly evidence an intention to make the testamentary provision take the place of the provision made by law. There is in this will one controlling provision that evidences the intention to make the testamentary provision a substitute for the legal one, and that is the provision that the whole estate, after the termination of the life-estate, shall vest in fee in a trustee clothed with the power of management and disposition. The rule is, that where there is such a devise to trustees, the testamentary provision supplants that made by law, in so far at least as to put the party claiming in virtue of marital rights to an election. It is said by an English court, that "The will also gives to the trustees the management of the estate, and directs them to make such repairs as they may deem necessary: this provision is also inconsistent with the existence of a right to dower in the wife." Parker v. Sowerby, 4 DeG. M. & G. 321. To the same effect are the decisions in Butcher v. Kemp, 5 Mad. 45, Wright, Administrator, v. Jones et al. Roadley v. Dixon, 3 Russ. 192, Miall v. Brain, 4 Mad. 68, Goodfellow v. Goodfellow, 18 Beav. 356. But it is not necessary to put the construction of the will upon this ground alone, important as is the influence which it exerts, for the whole scope of the language employed clearly and forcibly indicates an intention that all of the real estate of the testatrix, except the life-estate carved out for her husband, shall go to the trustee for the benefit of her children, and this is irreconcilably opposed to the theory that the husband has a life-estate in the property specifically devised to him, and, in addition, an estate in fee in one-third of all the real estate of which his wife died seized. It is argued with signal ability in the able brief of appellant's counsel, that, conceding that the will does assume to divest the husband of his interest as the heir of his wife, still the appellant must succeed, because a husband can not be put to an election. We do not find it necessary to decide. this question, for we think the sufficiency of the fifth paragraph of the answer is maintainable without deciding it. Our opinion is that the answer pleads facts showing a valid family settlement, which it is the duty of the courts to uphold. We suppose it to be quite clear that if Jesse Jones had agreed with his wife that he would join her in conveying the fee of her real estate to their children, and had executed a deed at the time the will was made, and he was then free from debt, the deed would have been valid. We can conceive of no reason why a husband might not join with his wife in conveying to their children her land, reserving to himself such an interest as they might agree upon. If the contracting parties, at a time when there were no impediments to the consummation of the contract, should agree in writing upon the disposition that should be made of the property of the wife, we can perceive no legal reason, nor any equitable principle, that would prohibit the execution of such a contract. If the husband prefers a life-estate in a particular piece of property, and to secure the desired estate promises to ac |