The opinion of the Court was delivered by
Willard, A. J.It will not be necessary to look into the complicated provisions of the will of J. Barrett at the present time. The exact situation of the estate, and the circumstances affecting *519the various parlies, particularly the infants entitled under the will, .are not brought before us, so that the bearing of the various provisions of the will, upon their interests, can be determined.
The decree of the Circuit Court materially modifies the dispositions made by the testator. If such modifications could, under any circumstances, be made, it would be in view of a full disclosure of the situation of the estate, and of circumstances tending to render the intentions of the testator inoperative upon the construction primarily due to the language and expressions of the will. We intend to express no opinion as to the merits of the question raised upon the construction of the will, for the reason that the cause is not mature and in readiness for such a decision.
It is evident, as appearing by the statements of the decree, and the representations of counsel, that the Circuit Judge was largely influenced in pronouncing the decree, by the supposition that all the parties before the Court were desirous that the decree should be entered in the form in which it appears before us. Whatever may be the fact in this respect, and whatever force the Circuit Court would be justified in ascribing to the consent of the adult parties, and the representatives of the infants, the decree cannot be held by us as made upon consent of all parties bound by it, for the record before us shows no such binding consent. For all that appears on the record, the appellants are at liberty to dispute the provisions of the decree.
The decree not being sustainable, as a consent decree, will have to be vacated as unsupported by any state of facts, established by proofs, justifying a departure from the primary force of the language of the will.
The decree must be set aside, and the cause remanded for further proceedings.
Moses, C. J., and Wright, A. J., concurred.