delivered the- opinion of the Court:
This case is one involving the construction of a will.
Walter L. Newberry, a citizen of Chicago, made his will on the 30th day of October, 1866, and died November 6, 1868. He left a widow and two unmarried daughters. By his will he devised and bequeathed unto two trustees his whole real and personal estate, after payment of certain specific legacies of inconsiderable amount, to be held upon the general trusts declared in the will until its distribution by them to the persons ultimately entitled, — the will containing careful directions governing during this period the administration of the estate and its income. The estate was a very large one, of the estimated value of from four to five millions of dollars.
The will provides for an annual paymfent by the trustees of ten thousand dollars to the wife of the testator, and also gives to her certain articles of personal property, such as furniture, horses and carriages, books and paintings, and a life estate in the homestead situated in the city of Chicago, on the condition that she would consent to accept the same in lieu of her dower right and all other right in the estate.
The remainder of the net income of the estate was to be divided by the trustees equally between the two daughters, for life, with benefit of survivorship between them in such income.
After their lives and that of the wife, the whole of the estate was to be by the trustees divided equally amongst and distributed to the children of the daughters, the child or children of either taking the whole in default of lawful issue of the other. There is then this further provision, upon which the question arises:
“ In case of the death of both of my said daughters, without leaving lawful issue, then immediately after the decease of my wife, if she survive my said daughters, but if not, then immediately after the decease of the last surviving one of my said daughters, my said trustees shall divide my estate into two equal shares, my said trustees .being the sole judges of the equality and correctness of such division, and shall at once proceed to distribute one of such shares among the lawful surviving descendants o'f my own brothers and sisters, such descendants taking per stirpes and not per capita.
“ The other share of my estate shall be applied by my said trustees, as soon as the same can consistently be done, to the founding of a Free Public Library, to be located in that portion of the city of Chicago now known as the North Division.”
Both of the daughters have died without issue and unmarried, one dying in February, 1874, the other, Julia, in April, 1876. The widow of the testator is still living. She, within one year, renounced her rights under the will, and took, under the law of Illinois, one-third of the personalty, and her dower in the realty.
Eight nieces and nephews and ten grand nieces and nephews of the testator (the parents of the latter being dead), living at the death of the last daughter, Julia, constitute the complainants in the bill in chancery herein, which was exhibited in the circuit court of Cook county, asking a present distribution of the estate. The court below granted the prayer of the bill, and the defendants appealed.
The question for determination is, can there be now, during the lifetime of Mrs. Newberry, a legal division of the estate by the trustees, one-half to the descendants of the testator’s brothers and sister, and the other half to the public library.
Complainants claim, that upon the death of the last daughter without issue, the class to whom the devise was in part made, viz: the lawful “surviving descendants” of testator’s brothers and sister was in existence and capable of taking. That at that time the estate became vested in the members of the class; that the testamentary life estate which was given to the widow by the will was the impediment to the distribution of the estate until the death of the widow, and the reason of the postponement of the distribution until that event; that such life estate having been extinguished by her renunciation, it is, as to the complainants, the same as if her life had come to an end,, and that the remainder to them was accelerated, under the doctrine of the acceleration of remainders, so that they became entitled to immediate enjoyment thereof.
The defendants assert that the death of the widow is fixed by the will as the time when the division and distribution by the trustees shall be made; and further, that no distribution can be made till then, because they say that that time enters into the description of those who are to take, — that the devise over is to those descendants only who survive the death of the wife, and until that time it can not be ascertained who the donees under the will are.
' Who are the donees in this devise to whom one-half of this estate is to be distributed?
They are a class of “surviving descendants” of the testator’s brothers and sister. The members of this class are to be determined by the event or time to which the word “surviving” relates.
There are three periods here to which it may be claimed to relate, the death of the testator; the death of the last daughter, Julia Newberry, without issue; or the time appointed for the distribution upon the death of Mrs. Newberry. However it may have been at some former time, we understand the rule now prevailing to be, that where a gift to survivors is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution, and those only.
In Knight v. Poole, 32 Beav. 548, there was a bequest to A, and at his death to B, and at “her decease” to be divided among four named persons, or “as many of them as may be living.” The question was, at -what time the persons to take must be living, for some survived one of the tenants for life, and died before the other. Sir John Bomilly, the Master of the Bolls, said: “I am clear that no person took except those who survived the period of division. There is a gift of property to A for life, and at his death (with certain exceptions) to B, and at her death it is to be divided between the surviving brothers and sisters who are named. The case of Gripps v. Wolcott clearly applies, and only those who survived both A and B could take. The property is to be ‘ divided/ and nobody was to take who was not living at the period of division. * * * I am of opinion that the words in question have relation to the period of division, and that the plaintiff takes no interest in the property.”
In Stevenson v. Gullan, 18 Beav. 590, there were bequests to two for their lives, and, from and after their decease, to their “ surviving children.” One of the tenants for life had seven children living at the death of the testatrix; six were living at his own death, but only four were living at the death of the other tenant for life. The question was, to what period the word “surviving” must be referred. Sir John Komilly, the Master of the Bolls, remarked: “ The survivor-ship must be referred to the death of the last of the tenants for life, which is the period of distribution. Where the income of a fund is given to tenants for life, and there is a gift over after their deaths to children, or a class of persons surviving, it is a gift to those only who are then surviving.”
In Spurrell v. Spurrell, 11 Hare, 54, the testatrix, by will, gave all her property whatsoever to her mother for life, and after a legacy of two hundred pounds, then the residue of any property to be equally divided between any surviving brothers and sisters, share and share alike. Sir W. Page Wood said: “I think the word (surviving/ in this will as applied to the brothers and sisters of the testatrix, must mean surviving at the time of the distribution of the fund. The word was capable of receiving four different constructions, which were suggested in the argument. * * I think it better that the court should hold that there is no rule referring the time of survivorship of the legatee to the death of the testator. The natural inference is rather the other way, and the court must ascertain the true meaning of the testator after looking at every portion of his will. * * It seems to me that the period to which the word ‘surviving’ refers, is the period when the fund came to be distributed— when the event has happened which is to guide the executors in making distribution.”
In Young, v. Robertson, 8 Jur. N. S. 825, this question arose in 1862 in the House of Lords. The testator directed his estate, real and personal, to be divided equally among his grand-nephews and grand-nieces. The Lord Chancellor there said : “ How, I apprehend it to be a settled rule of construction, and in itself a very reasonable and natural rule, that words of survivorship occurring in a settlement (that is, a will) should be referred to the period appointed by that settlement for the payment or distribution of the subject mat- . ter of the gift. That, undoubtedly, is the rule that is now finally established in this country. * * * The result, therefore, is, that in the event of such a gift the survivors are to be ascertained in like manner by a reference to the period of payment or of distribution, namely, the expiration of the life ■ estate.” Numerous other like cases might-be cited.
This court recognized and applied the above rule in Ridgeway et al. v. Underwood et al., 67 Ill. 419, where, after referring to 2 Jarman on Wills, 3d Am. ed. 462, and Marriott v. Abell, 7 Law Rep. Eq. Cas. 478, as authorities to show the existence of such a rule of construction, it was said : “ Here was a ‘prior interest’ which was to be extinguished by lapse of time before the land could be sold. The land was then to be sold and the proceeds divided between certain-of the children. Here, then, applies, with literal exactness, the rule expressed by Jarmau. The will provides for survivorship. It is indefinite in its terms, and the rule solves the doubt by applying the language of the testator to those who survive the period of distribution.” In Linton v. Boyd, 19 Ohio St. 30, the court, after citing the case of Young v. Robertson, supra, and the statement of the rule there, that words of survivorship should be referred to the period appointed for the payment or distribution of the subject matter of the gift, observed: “ This, undoubtedly, is the general rule recognized in this country, subject, of course, to such modifications as the paramount rule giving effect to the intention of the testator may require.” And see Olney v. Hull, 21 Pick. 311; Teed v. Morton, 60 N. Y. 503, and cases cited in note (y) 2 Williams on Executors, 1576, 7th ed.
We find it then to be the settled rule of law that, as expressed in Cripps v. Wolcott, 4 Madd. 12, “surviving” means surviving at the time of the distribution and possession of the estate, unless a special contrary intent is found in the will. We do pot'find any such contrary intent in this will.
The form of the gift here, too, there being none except in the direction to distribute, adds to the strength of the rule in confining the reference of the words of survivorship to the time of distribution. The significance which the authorities attach to such a form of gift will be found to be as laid down in Leake v. Robinson, 2 Meriv. 363. There was there a- direction to trustees, in case Wm. Rowe Robinson should die without issue, to pay, apply and transfer unto and among all and every his brothers aud sisters, share and share alike, upon their attainment of 25, or marriage, respectively. The question was whether those only were the donees who lived until 25 and attained the period of actual payment and transfer, or whether that was merely a time fixed for payment of shares that had vested at some antecedent period.
The Master of the Rolls, Sir Wm. Grant, said: “ There is no direct gift to any of these classes of persons. It is only through the medium of directions given to the trustees that we can ascertain the benefits intended for them. * * * There being, as I have already said, no direct gift to the grand-children, we are to see in what event it is that the trustees are to make it over to them. * * * The attainmenfc of 25 is necessary to entitle any child to claim a transfer. It is not the enjoyment that is postponed; for there is no antecedent gift, as there was in the case of May v. Wood, of which the enjoyment could be postponed. The direction to pay is the gift, and that gift is only to attach to children that shall attain 25. * * * None but a person who can predicate of himself that he has attained 25, can claim anything under such a gift.”
Under the form of gift here there is no gift to any one except such as are surviving and capable of taking at the time of distribution. Surviving at• the time of distribution is a part of the description given by the will of the donees, and there is no gift to any one who does not answer the description in this-element of- time, — who is not at that time living. The donees then, here, are the descendants living at the time of distribution, whenever that time may be, and not those living at the death of the daughter, Julia Newberry, unless that event should be coincident with the time of distribution. Until the time of distribution it is uncertain who will be alive to take then, and. until that time arrives it can not be ascertained and made certain who the donees are.
To a similar effect are Vawdry v. Geddes, 1 Russ, and Myl. 203; Locke v. Lamb, 4 Law R. Eq. 372; Drake v. Pell, 3 Edw. Ch. 267.
In Smith’s Executory Interests, § 281, it is laid down that “where real or personal estate is devised or bequeathed to such of the children, or to such child or individual as shall attain a given age, or the children, etc., who shall sustain a certain character, or do a particular act, or be living at a particular time, without any distinct gift to the whole class, immediately preceding such restrictive description; so that the uncertain event forms part of the original description of the devisee or legatee, — in such case, the interest so devised or bequeathed, is necessarily contingent on account of the person. For, until the age is attained, the character sustained, or the act performed, the person is unascevtained ; there is no person in rerum natura answering the description of the person who is to take as devisee or legatee.”
We find it unnecessary to enter into the discussion of the doctrine of contingent and vested remainders, the learning pertaining to which was so elaborately gone into by counsel in the argument. For, even conceding the claim of the complainants that survivorship here is to be referred to the death of the last surviving daughter without issue, and that upon that event the devise to the surviving descendants of the testator’s brothers and sister ceased to be a contingent and became a vested estate in the descendants then living, — still, unless the time of distribution has arrived, complainants can not maintain their bill for present distribution. And if the time for distribution has in fact arrived, the defendants’ claim that the devise is contingent as to person would seem to be of force no longer, as that contingency would have been determined, and the donees have become ascertained by the arrival of the period of distribution. So that we are brought to that which at last is the prime inquiry in the case, what is the time of distribution under the will? Has the period of distribution arrived'?
The time appointed by the testator, in the contingency which has happened, the death of both daughters without issue, when the trustees should divide his estate into two equal shares, and at once proceed to distribute one of such shares among the lawful surviving descendants of his brothers and sister is, “immediately after the decease of my wife.” Complainants say, by the renunciation of the widow, their remainder has become accelerated, under the rule of acceleration of remainders, so that it is as if the widow were dead, and that thus the appointed time of distribution has arrived.
This doctrine of acceleration is stated by Theobold thus: “ Where there is a gift to A for life, and after his death to ' B, if A is incapable of taking, because he is an attesting witness, or from any other cause, or if he refuses to take, the remainder is accelerated. The same is the case if the life estate is revoked by the testator, or determined by a forfeiture clause.” Theobohl on Constr. of Wills, 450.
Jarman says, (1 Jarm. on Wills, 3d ed. 539): “ The doctrine evidently proceeds upon the supposition, that though the ulterior devise is in terms not to take effect in possession until the decease of the prior devisee, if tenant for life, or his decease Avithout issue if tenant in tail, yet that, in point of fact, it is to be read as a limitation of a remainder to take effect in every event AA'hich removes the prior estate out of the Avay.”
In Jail v. Jacobs, L. R. 3 Ch. Div. 711, it is laid doAvn : “ That a gift to A for life, and from and after the decease of A, to B, C, D or anybody else, means from and after the determination of the estate; and whether the estate is determined by revocation or by death, or by the incapacity of the devisee to take, or by any other circumstance, the life estate being out of the way, the remainder takes effect, having only been postponed in order that the life estate may be given to A.”
This doctrine of acceleration, howeA7er, is not an arbitrary one, but it is founded on the presumed intention of the testator that the remainder-man should take on the failure of the previous estate, notwithstanding the prior donee may be still alive, and is applied in promotion of the presumed intention of the testator, and not in the defeat of his intention. And when it is the evident intention of the testator that the remainder should not take effect till the expiration of the life of the prior donee, the remainder will not be accelerated.
The further language of Vice Chancellor Maliks, in deciding the case of Jull v. Jacobs, supra, shows clearly and fully the principle Avhich governs this doctrine of acceleration. He said: “It is perfectly clear, in the first place, that the children are postponed to the mother, simply because the mother is to have the property for her life; but if the mother can not have the property for her life, why are the children to be postponed ? The reason of their postponement altogether ceases; they are not to have it until after her death, because the testator assumed that she would have it during life. But he was ignorant of the law, that if he called in his daughter to be an attesting witness, the very gift he made to her Avould absolutely fail. Now he has postponed his grandchildren,— that is, his daughter’s children, solely because the daughter was to take for life, and if he had known that she could not take it for life, he would not have postponed the children until after her death. He would not have left her and her family totally destitute in the meantime. It is a mere accident that the daughter can not take the life estate, and I am of opinion that the children are postponed to the daughter simply that she may have the property for life, and if she could not have it for life, the children would have had it immediately.”
In Augustus v. Seabolt, 3 Met. (Ky.) 155, where a prior life estate devised had failed, the devisee for life still living, the court refused to accelerate the remainder, because to do so would violate the plain language of the testator, and might defeat his will, by letting in, as devisees, persons not intended to be the recipients of his bounty — the words of the devise over in remainder being, after the death of the devisee for life to a class of children, or such of them as might be living at the time of the death of such devisee.
In Estate of Matthew Delaney, 49 Cal. 76, the testator devised his residue of estate to his executor, with directions to sell certain realty, and, after certain payments, to invest the ■proceeds remaining; to pay certain income to his children ■and wife during her life ; and on the death of his wife, to distribute the estate among his surviving children. The widow renounced the provisions of the will, and claimed under the statute. After such renunciation, the executor sold a large part of the realty. Afterward, the estate being in condition to be closed, one of the three children claimed, in her petition, that by the renunciation the trusts in the executor were defeated, and that that portion of the estate devised to the executors in trust became snbiect to distribution among the heirs at law, in the same manner as if the said Matthew Delaney had died intestate. So that she was entitled to distribution of the lands which had been sold by the executor after the renunciation. The court denied this claim, and upheld the conveyances made by the executor after the renunciation, saying: “ The will devised to the executor the fee of the lands in question to be held in trust for the purpose mentioned in the will. The renunciation by the widow of the testator of her right under the will, and the order of the probate court setting off to her a portion of the property as common property, did not extinguish the trusts declared in the will, nor divest the executor of the fee in the remaining portion of the property. The executor retained the same power over the portion of the estate remaining in his hands after the renunciation by the widow, and the setting apart the property to her, that he possessed prior to the renunciation.”
As respects the intention of the testator, which is to be regarded in the interpretation of a will, it is not the intention to be deduced from speculation upon what the testator may be supposed to have intended, but it is the intention as spoken by the words of the will.
In 2 Williams on Exrs. (7th ed.) 1078 marg. it is laid down:
'“The use of the expression that the intention of the testator is to be the guide, unaccompanied with the constant explanation that it is to be sought in his words, and a rigorous attention to them, is apt to lead the mind insensibly to speculate upon what the testator may be supposed to have intended to do, instead of strictly attending to the true question, which is, what that which he has written means.”
As bearing upon the testator’s intention, there are other words of the will which should be considered, as:
“In case of the death of both my said daughters, without lawful issue, it is my will that thereafter the portion of my estate, both principal and interest, which would have belonged to them respectively, in case they or either of them had survived, shall revert to and become a part of my estate. And it is my will, and I direct, that in the case of each and every bequest, and of every instance in which I have directed my Trustees to pay over money to any person or persons whomsoever, if the person or persons to whom or for whose benefit I have made such bequests, or directed money to be paid as aforesaid, shall have deceased, or from any cause be incapable of taking, then the amount so bequeathed, or so directed to be paid over, shall revert to and become a part of my estate, unless I have otherwise specifically directed.”
The bequest and payment of money mentioned in the last sentence above would include this testamentary provision offered to Mrs. Newberry by the will, if she would consent to take the same in lieu of her dower, which she became incapable, by her election, of taking, and it is declared what shall be the effect of not taking this provision; and it is, that what is embraced within it “shall revert to and become part of my estate;” and this is all the effect which is anywhere intimated in the will shall follow from not taking this provision. There is no hint of ah intention that it shall hasten or in anywise affect the expressed time of the distribution. The two sentences last above given embrace the exact case which is now presented here, to-wit, the death of both the daughters without issue and the failure of the wife to take the testamentary provision, and the testator declares what the effect shall be — which is, not that there shall be immediate distribution, but that the bequests to the daughters and the failing bequest to the wife shall revert to and become a part of his estate, with the intention presumably, that they should be and remain such, in the hands of the trustees, to be cared for and managed by them until the appointed time for the distribution should come, viz., the death of the wife.
Had it been the intention of the will, that on the failure of the wife to take the testamentary provision, and the daughters dying without issue, there should then be immediate distribution, here, where that very case was mentioned, would have been a most fitting place to have signified such intention ; but there is no intimation that way.
The last sentence of the above clause shows that the period of distribution was not fixed at the termination of their lives, simply that the life tenants might enjoythe property, because after the death of the daughters without issue, the.widow, if she took under the will, would take the use and income of but a small portion of the property, and the rest, in accordance with the express provision of the testator, would be held by the trustees for accumulation.
“In case of the death of both or either of my daughters, during the lifetime of my wife, leaving lawful issue living, it is my will, and I direct, that such lawful issue shall have and receive from my said trustees the portion of the net income from my estate which would have belonged to that one of my daughters from whom they are descended, had she survived,” etc.
To this issue, not only the income, but the whole principal is given at the time of final distribution, and the time of distribution to them is fixed the same as it is to the descendants of the testator’s brothers and sister, viz., the termination of the three lives of the daughters and wife. Now supposing this contingency of the death of both daughters during the lifetime of the wife, leaving lawful issue living, say minor issue, had happened, and a claim like the present for immediate distribution had been set up in behalf of such minor issue, could it then have been successfully claimed, that as the widow had not taken the testamentary provision, the estate of the trustees had ceased and guardians of the minor issue should be appointed and the capital of the estate be at once turned over by the trustees ? The testator had selected his own guardians for this property, these trustees, and the estate during the life of the wife Avas to be cared for and managed by these persons of his OAvn choice, under the specific directions Avhich he had himself given, and the estate with its accumulations as thus managed Avas to be passed OA'er direct from the hands of these trustees to the children. Must we not suppose this to have been the intention of the testator and that it was not the intention that the estate should be turned over by the trustees into the hands of guardians appointed by the court to be managed by them during the wife’s life, according to their own notions, and not in the way the testator had directed, with the liability of depreciation and waste of the property from the mismanagement of such guardians? Has not one the right to provide as to the management of his property in such case, and does not this appointment of trustees look to that end, and is it not to be upheld accordingly ? Further, in such event of the decease of both daughters during the wife’s lifetime, leaving lawful issue living, there should be an immediate distribution to the daughters’ children, according to appellees’ claim that renunciation was the same as death in this regard; but this clause of the will says that in that event the trustees shall pay over to the children the daughters’ portion of the net income, thus implying that the estate is to continue in the trustees, and that the income is to continue to be paid to the children during the wife’s lifetime until the time comes for distribution, viz., the wife’s death. If the taking of the testamentary provision had been the sole reason for postponing the distribution until the wife’s death, would there not have been some reference to that circumstance in this place — the uncertainty of the accepting of that provision being so vividly before the testator’s mind — such as that the income should be paid to the children in case the testamentary provision should have been accepted, or that if it had not been accepted, there should be then an immediate distribution of the estate to the children ? This would have been natural had the circumstance of taking the bequest been the sole reason for fixing the time of distribution at the wife’s death.
“In the management and conduct of my estate by my said Trustees, it is my will, and I direct, that the following described premises and property, situate, lying, and being in the city of Chicago aforesaid, to-wit: Blocks numbered nine (9), ten (10), eleven (11), and eighteen (18), in New-berry’s addition to Chicago, and lots twenty-two (22), twenty-three (23), twenty-four (24), twenty-five (25), and twenty-six (26), all in block numbered one (1), in Butler, Wright and Webster’s addition to Chicago, and sub-lots one (1), two (2), and three (3), of lot five (5), in block numbered four (4), of the original town of Chicago, shall not be sold or mortgaged by my said Trustees during the lifetime of my wife and daughters, or either of them, nor until it shall become necessary for my said Trustees to divide and make final division and distribution of my estate as hereinbefore in this my will provided.”
Then follow careful provisions and directions concerning the powers and discretion of the trustees covering leases, sales of realty, the improvement of the estate by the trustees by the erection of “stores, dwellings, hotels, offices of all kinds,” as they may judge best for the interest of the estate, and that the premises above described shall be first improved.
Provision is made in regard to investment by the trustees of moneys of the estate, directing the particular securities in which the investments shall be made.
Thus large powers of control and management were given to the trustees, almost those of an absolute owner; and this clause of the will imports that there were to be extensive improvements made by the trustees, implying the continuance of the estate in the trustees for a considerable length of time, which might well be for so long a time as the duration of three lives, and the provision would not comport with any short time of holding the property. This clause, too, recognizes in terms the time of the duration of the estate in the trustees to be “during the life-time of my wife and daughters.”
The following provisions, which make the bequest to the wife, show that the testator contemplated that his wife might renounce the will, and hold to her statutory estate:
“ It is my will and desire to make provision for my beloved wife, Julia Butler Newberry, provided she consents to accept of the same in lieu of and instead of her dower right, and all other right, claim and demand to my estate, or any part thereof, in the following manner: I give and bequeath to her, etc., (naming the bequest made to her.) None of the aforegoing provisions for the benefit of my wife shall be operative or have any effect, but the same shall all and singular be inoperative and void, unless she shall, within twelve (12) months after my decease, relinquish in due form of law all claim to my estate.”
Now, bring the provisions of this will side by side with the language of the Vice Chancellor above cited in the case of Jull v. Jacobs, and apply to them the reasoning which was there employed. As was there said with reference to the facts of that case, can it be said here,that it is perfectly clear that the distribution is postponed to the death of Mrs. New-berry, simply because she was to have this particular testamentary provision for life? That the reason of such postponement altogether ceases, because of her not accepting that provision? That the postponement to her death was solely because she was to take this testamentary provision for life, and that, if the testator had known that she would not take that provision for life, he would not have postponed the distribution until after her death ? There was here no absolute gift to Mrs. Newberry for life, but a conditional one only, the very form of it showing consciousness that it might not be accepted. It will be seen that the testator first declares his will and desire to make provision for his wife, provided she consents to accept of the same in lieu of her dower right. He then makes the bequest to her before named. And then immediately following says: “None of the aforegoing provisions for the benefit of my wife shal.1 .be operative or have any effect, but the same shall all and singular be inoperative and void, unless she shall, within twelve months after my decease, relinquish in due form of law all claim to my estate.” All this shows that the failure to take this testamentary provision was not an unforeseen, or unanticipated event, but that it was present to the mind of the testator and in his distinct contemplation that his wife might not take this provision. He knew that she would have a life estate of dower, and he offered her by his will this annuity of $10,000 for her life if she would take it in lieu of the dower estate ; and it was not only once, but repeatedly declared that this testamentary provision should be void, unless accepted in lieu of dower; and it was to be void, unless a formal relinquishment of dower should be made by the widow within twelve months after the testator’s decease. It was uncertain to the mind of the testator whether his wife would or not comply with this prescribed condition and take this provision of the will, and he distinctly contemplated that she would have a life interest, either of the annuity provided by the will, or of dower, with an entire uncertainty before his actual view whether it would be the one or the other.
Thus seeing, he wills that the distribution shall be made “immediately after the decease of my wife.” What reason for saying that the not taking this testamentary provision is the equivalent of the wife’s decease; that now, upon .the death of the two daughters without issue, is the time of distribution under the will?
When, as here, there is a dower estate, and a testamentary estate given for life on condition that it shall be accepted in lieu of dower, and expressly providing that the gift shall be void unless there be a formal relinquishment made of the dower estate within a specified time, and then the simple direction, without more, that the final distribution of the estate shall be upon the death of the wife, that event is the time for the distribution, we consider, whether the testamentary provision be accepted or not. The wife’s death being fixed as the time of distribution in distinct view of there being the life estate of dower and of the uncertainty whether the provision of the will would be accepted in lieu of dower or not, whether the life estate of the annuity, or that of dower, would be the one the wife would have and enjoy, it manifests the intention that the wife’s death should be the time of distribution, whichever the event might be, whether she accepted or declined to accept the provision of the will in lieu of her dower estate.
If it had been otherwise, if the intention had been that if the wife did not elect to take this testamentary provision in lieu of her dower, that then the distribution should take place on the death of the last surviving daughter without issue of either, why did not the will so say, as this contingency of not taking the bequest was in the actual view and contemplation of the testator. The will is a very carefully drawn one. It seems to make provision for almost all possible contingencies which might be supposed to arise.
And if this time of distribution, upon the wife’s death, had not met and covered the contingency of her not taking the testamentary provision and been expressive of the intention of the testator in that contingency, it is inconceivable that there should not have been some expression in the will that there should be a different time of distribution in the case of that contingency, it having been so distinctly in the view of the testator.
The intention of the will, as we find, is, that the time of distribution should be the wife’s death, whether she did or did not take this testamentary provision. And this intention is not deduced solely from the words used, that the distribution shall be “ immediately after the decease of my wife,” but it is manifested from other provisions of the will. The intention of the will must govern. No artificial rule of construction can be allowed to prevail over the intention. Surely, if the will had expressed that the wife’s death should be the time of distribution, whether she accepted the testamentary provision or not, the rule of acceleration invoked by appellees’ counsel would not be suffered to change this fixed time of distribution. The intention of the will that the wife’s death should be the time of distribution, whether the testamentary provision was accepted or not, seems to us to be satisfactorily manifested from the provisions of the will, and almost as much so, as if there had been such expression of it as above, in terms.
The rule upon the subject of the acceleration of remainders relied upon by appellees’ counsel as authority to change the fixed time of distribution in this case, namely, that when there is a gift to A for life, and after his death to B, if A is incapable of taking, or refuses to take, then the remainder is accelerated and takes effect, is in agreement with the manifest intention of the testator. It is in such case the testator’s intention that A and B shall take the whole estate; that he shall die testate as to all of it, and that no part of it shall, go as intestate estate. Now, if on A not taking, the estate should go during A’s life to some one else than A or B, the testator’s intention that they should have the entire estate between them, and that none of it should pass as intestate estate to any one else, would be disappointed. That the estate should go immediately to B, on A not taking, is carrying out the palpable intention of the testator that the two should take the whole estate. But the rule would not apply if there was the expression of a contrary intent. Any expressed intention would be paramount to the rule.
No question is made as to this general rule. But how different is it here in the present case? On the failure of the wife ta take the offered bequest, there would be no dying intestate as to that, and no passing of it to some one else whom the testator did not intend, but it would go to his devisees, the trustees, to be held for those ultimately entitled to it under the will; and the will even taking the pains to provide that on failure of the wife to take the bequest it should revert to and become a part of the testator’s estate which was devised to trustees to hold for the purposes of the will. It was not necessary, as in the case instanced above in the rule as to the acceleration of remainders, that the failure to take the bequest should be held the equivalent of the wife’s death, and distribution be made upon such failure to take as upon the wife’s death, in order to carry out the intention of the testator that the devisees should have the whole estate, and to prevent the subject of the bequest from going as intestate estate to some one else whom the testator did not intend during the lifetime of the wife. Here we do not find, as in that case, the intention to be that if the wife did not accept the testamentary provision offered to her, the distribution should be made upon the death of the last surviving daughter without issue, or that that would be carrying out the intention ; but we find the intention to • be that the time of distribution should be the wife’s death, whether she did or did not take the offered provision of the will. This ease is without the reason of the rule as to the acceleration of remainders, and, as we conceive, that rule has no applicability here, under the peculiar provisions of this will; that to so apply it would be wresting it from its proper purpose of being in furtherance of the intention of the testator, to the thwarting of such intention.
In regard to the controlling effect of the intention in the application of the rule as to accelerating the remainder, see Craven v. Brady, 4 L. R. Eq. Cases, 209.
In Hinckley v. House of Refuge et al. 40 Md. 461, the testator gave property in trust for the use of his wife during her life, and from and after her death to certain charitable institutions named. The widow renounced all benefit under the will and made her election to take dower. She being still living, the charitable institutions made application to have their bequests paid at once, upon the theory that as the widow had renounced, the time of payment of the legacies to them had been thus accelerated, and that they were entitled to receive them presently, notwithstanding by the terms of the bequests they were payable only on the death of the widow. The court held that the property should be retained by the trustee until the death of the widow, her death being the event upon which the legacies, according to the terms of the will, were payable. The general rule as to the acceleration of remainders was acknowledged, but that it should not be applied where the result produced would contravene the intention of the testator.
In Firth v. Denney, 2 Allen, 468, the testator gave $9000 to his executors to invest and pay the income to his wife during her life, and after her death to pay the fund to certain legatees. The widow renounced the provisions made for her in the will. The court held that the fund of $9000 must be retained in the hands of the executors during the life of the widow, and on her decease be paid over to the legatees.
Upon the happening of the wife’s death in the lifetime of the daughters, why should not the will have directed that the estate should then be distributed to the daughters? Upon their death, in such event of the wife’s death, it would, by the will, have been distributed to the children, if any, of the daughters, and did not the testator hold his children in as high regard as unknown grand children, and why not the estate go then, on the wife’s death, as well to children, as to grand children on the wife’s and daughters’ death? No reason is apparent, -save the one, that the estate should be kept together, managed and improved by the trustees for a certain length of time, and that the body of the estate as it should then be, at the end of that time and not before, should go over to the ultimate devisees. The whole scheme of the will seems to be permeated with the idea of the holding and the management of the estate by the trustees for a certain length of time, which was measured by the duration of these three lives of the wife and the two daughters; that the body of the estate should be held in the hands of the trustees to be' managed, improved and augmented by them under the directions given by the testator, for that length of time, at the end of which, and not before, with its accumulation as thus managed, it should be distributed.
We are favored with the elaborate and able opinion delivered by the learned judge of the circuit court who decided this case below, which we have read with interest and profit.
It is there said there can be no doubt that had Mrs. New-berry not renounced, but taken under the will, there could be no division or distribution now, “for two reasons: First, The will is clear and distinct upon this point. Three lives must terminate before distribution can be made. Second, In the nature of things, no division and distribution could be had so long as the widow’s testamentary estate existed. She was to derive an income from the whole property, and the income was an incumbrance upon the whole property. She was also to have a homestead for life out of the testator’s property.” We are quite unable to perceive why these same reasons do not exist with full force under the widow’s renunciation. The will is no more clear and distinct upon the point in the case of the one event, than in the other. There are no words of the will connecting the time of final distribution with the so-called testamentary estate, any more than with the statutory one; nor, in fact, with either of them at all.
As respects the second reason, there now remains the same impediment in the way of division and distribution, to-wút: The outstanding life interest of the widow. Had she accepted the will, it would have been her homestead and annuity. Now that she has renounced the will, it is the incumbrance of her dower estate. It appears that a large portion of this estate is realty, — defendants’ counsel say, three-fourths.
The case shows that the widow’s dower has been assigned in the lands in Illinois, but not in the lands in Wisconsin. The widow, then, has now a life estate in one-third of all the realty, showing there to be the same impediment of a life interest in the widow, to the final distribution now, that there would have been had she accepted the homestead and annuity. The annuity was not, by the terms of the will, made any charge upon the estate. A portion of the realty, it is true, has been disincumbered of the dower estate; but there was to be no piecemeal distribution of the estate; there was to be but one, a final, complete division and distribution of the entire estate at once. This is clearly manifested by the will.
What is called here the testamentary estate, was but an offer of a testamentary provision in lieu of the statutory estate of the widow, which was never accepted. A provision by will in lieu of dower is, in fact and in legal effect, a mere offer by the testator to purchase out the dower interest for the benefit of his estate. 2 Scribner on Dower, 496; 2 Williams on Exrs. ed. 1877, 1364; Isenhart v. Brown, 1 Edw. Ch. 413; and in the present case it was such in express terms. This offered substitute for the statutory estate might or might not be accepted by the widow, as the testator knew and foresaw. Both contingencies then, the one that the widow might retain her statutory estate, and the one that she might accept the proposed substitutional testamentary . estate, were actually present before the mind of the testator, and in equal view of both of the contingencies he made the directions of the will appointing the time of distribution, and those directions must govern, and must, we think, have been intended to govern equally in either one of the contingencies.
We do not see how the rule of acceleration can be made to apply here, so that the time appointed by the will for the distribution, namely, the death of Mrs. ¡Newberry, can be accelerated to the time of the death of the daughter, Julia ¡Newberry. The principle of that rule is, that a remainder is accelerated whenever it is apparent that the only object of postponing the remainder-man Avas that the property might be enjoyed by the tenant for life. The facts of the present case preclude the idea that the postponement of the time of distribution was simply and only because of this offered testamentary provision as a substitute for the dower estate of the widow. There is no more room to say it was for such cause, than that the postponement was because, and on the account of such dower, estate, which yet subsists, and will until the death of Mrs. Newberry.
We fail to perceive any failure here of the precedent estate upon which the ultimate remainder was limited.
If the time of distribution is to be considered as dependent on a life estate, it must be regarded as only contingently so on this particular testamentary substitute — in case of its acceptance — and that if not accepted, it was dependent on the dower estate. That it is to be viewed as fixed with reference to whichever estate should ultimately be and remain the estate of the widow, according as she should accept or renounce the provision under the will. A life interest, the dower estate, yet remains in the widow.
There is, too, the trust estate. The intermediate estate is not gone and out of the way. We deem this view sufficient, without noticing other objections which have been urged against the applicability here of the rule of acceleration.
The testator might very well prefer, whatever the motive, that his estate should be kept together during the life of the members of his immediate family, and he has most distinctly shown by his words that to have been his purpose, and directed explicitly that the property should not be divided and distributed until after the termination of their three lives. If we were to seek for the object of the testator in postponing the distribution when both daughters had died without issue, until after the decease of his wife, it can not well be found to be because it was thought necessary that the whole of this large estate should be kept to support a trust to pay an annuity of ten thousand dollars to the wife, and especially when it was uncertain whether the annuity would be accepted. But a small portion of the estate would be needed to produce that annuity, and it might have been provided for as was done by the court in Sears v. Hardy, 120 Mass. 524, by setting aside a part, say $200,000, of the personalty of the estate, invested in such securities as are directed by the will. Then the rest of the estate would be disengaged. And this, too, serves to show that this annuity would have been at least no more of an incumbrance, in point of extent, upon the estate, than the dower interest, — the annuity, as remarked, not having been made any express charge upon the estate by the terms of the will.
Upon the assumption that the period of distribution is, in true meaning, appointed, not upon the death of the widow, but upon the termination of her life interest in the testator’s estate, it must have been in order that the complete division and distribution contemplated by the testator might be made, and not because of the necessity of this whole estate to support the annuity of $10,000 to the widow. It was an integral, complete disposition of his entire estate he desired to make, which could not be made before the falling in of the reversionary estate; and it must be taken that the reversionary estate, however arising, was the reason of the postponement, rather than the expected acceptance of the offered testamentary estate, when the uncertainty of its acceptance was in the actual and expressed contemplation of the testator.
Until the death of the1 dowress, the reversion expectant in the dower lands will not be subject to the distribution.
It is, we regard, the plain purpose of the will, that the division and distribution should not be made until after the termination of the three lives; only at a time after the whole estate should have fallen into the trustees disencumbered of all further uses for the two daughters or the widow.
We can come but to the one conclusion, that the period of distribution appointed by the will has not yet arrived, and will not, until the death of Mrs. Newberry. To determine otherwise would seem to us to be, in this particular, making a will for the testator, instead of expounding the one which he himself made.
The decree must be reversed, and the cause remanded for further proceedings in conformity with this opinion.
Decree reversed.