delivered the opinion of the court:
Under the several assignments of error counsel for the respective parties present for our decision,-—first, under the provisions of the will of the ancestor, Henry Witbeck, deceased, what are the rights of the parties in the one-third share of the real estate devised to Henry J. Wit-beck? Second, what are the rights of the parties in the one-third share of the personal estate bequeathed to him? Third, to whom should be paid the §20,375, called “income investment account?” And fourth, what disposition shall be made of the future income from said real and personal estate? It is agreed that these questions must be determined upon a construction of the first, seventeenth, nineteenth and twentieth clauses of the will.
The first clause of the will vests the fee of the real estate and the absolute title to the personal property in the trustees, to hold for the uses and purposes provided in the subsequent clauses. The seventeenth clause gives to the three grandchildren the benefit of the estate during their lifetime, the net income therefrom to be divided into three equal parts, one part to be paid to each of the grandchildren from time to time, as the trustees and their successors in trust shall, in their judgment, deem for the best interest of said grandchildren, subject to the restrictions and restraints thereafter mentioned. The nineteenth clause is devoted to the disposition of the respective shares of the beneficiaries in case of their death, and therefore is of controlling importance in the decision of the case. Whatever difficulties there are in arriving at a satisfactory conclusion as to how the testator intended the share or shares of one or-more of the grandchildren dying without issue or descendants of issue to be disposed of, arise from the last provision in that clause. The pre- ' ceding language, “then said one-third share of my residue estate shall go to the survivor or survivors of said last named three grandchildren,” would, under section 13 of chapter 30 of our statute entitled “Conveyances,” vest the fee simple title to the real estate in Frank M. and Gertrude H., were it not for the further provision: “And I further provide and direct that in case of the death of all three of said last named grandchildren without either of them leaving such issue or descendants of issue them surviving, then all of said estate hereby provided for such last named three grandchildren shall descend to my son John H. Witbeck and his heirs-at-law.”
Three views are presented as to the title vesting in these parties as the surviving brother and sister of Henry J., deceased: First, as insisted upon by them, that they take the fee simple title to the real estate and absolute ownership of the personal property; second, as held by the circuit court, that they take a determinable fee in the realty and an unqualified title to the personalty; and third, as contended by appellants and John H. Witbeck, that they take but a life estate or interest in both the realty and personalty.
We see no escape from the conclusion that the devise over to John H. Witbeck and his heirs limits the estate which would otherwise vest in the survivors, cutting it down either to a base or determinable fee or a mere life estate. In Friedman v. Steiner, 107 Ill. 125, the language of the will under consideration was: “I give and bequeath all the rest and residue of my said estate, real, personal and mixed, * * * unto my beloved wife, Rebecca Steiner, and unto her heirs and assigns forever, to the total exclusion of any and all person or persons whatsoever, provided, however, upon the express condition hereby made by me, in case the said Rebecca Steiner, after my decease, shall die intestate and without leaving her surviving lawful issue, * * * that then and in such event all the rest and residue of my said estate so bequeathed and devised unto her * * * shall at once be converted into money,” and paid over to certain persons named, among them Pauline Friedman, who was the appellant. This was held to convey to Rebecca Steiner a determinable fee. In Summers v. Smith, 127 Ill. 645, it was again held that a will containing a bequest “to my youngest son, Westley Clark Smith, to have and to hold to my said son and his heirs forever,” followed by the condition, “in case any of my sons to whom I have bequeathed property in this my last will and testament should die without heirs of his body, the real estate I have bequeathed to him shall g"o to his surviving brothers or brother and the personalty to all the other heirs, equally,” vested in the son, Westley Clark Smith, a fee determinable. To the same effect is Strain v. Sweeny, 163 Ill. 603, and Smith v. Kimbell, 153 id. 368.
In another line of decisions, beginning with Siegwald v. Siegwald, 37 Ill. 430, in the construction of wills somewhat similar to those construed in the foregoing cases we have held that the first devisee took only a life estate. In the Siegwald case the devise was as follows: “I give and bequeath unto my beloved wife, Antonia, all my real and personal estate, wheresoever situated, in fee simple and absolute forever, that is to say, that my said wife shall have all the benefits thereof until the expiration of her life, at which time my son, Anton, shall be the only heir of real and personal estate what may be left.” In the decision of the case it was said (p. 436): “Wills, like all other instruments, must be so construed as to effectuate the intention of the testator, and that intention must be ascertained from the language employed in the instrument itself, and in arriving at the intention all of the language employed must be considered. It seems to be evident that the testator did not intend to devise to his widow a fee simple absolute, otherwise he would not have added the limiting clause. Had that been the intention, he had fully accomplished the purpose without employing the latter clause; but when he did so, it must have been to limit or qualify the estate already devised.” See Bergan v. Cahill, 55 Ill. 160; Walker v. Pritchard, 121 id. 221; Siddons v. Cockrell, 131 id. 653; Johnson v. Johnson, 98 id. 564; Healy v. Eastlake, 152 id. 424; Thomas v. Miller, 161 id. 60.
Under either line of these decisions it is clear that the language of the nineteenth clause of the will under consideration does not vest a fee simple title of inheritance in the surviving brother and sister. Whether the title which they would take by the construction of the language, “then said one-third,” etc., shall go to the survivor or survivors of said last named three grandchildren, followed by the devise over to John H. Witbeck and his heirs, would be a fee determinable or a mere life estate, is not, in the view we take of the case, important. Counsel for appellants err, however, in their contention that the ground of distinction between the determinable fee cases and the life estate cases, above cited, is that in the former the devise to the first party named was accompanied with such words of inheritance as would at common law vest the fee, whereas in the latter the first gift was without such words. It is admitted that this distinction does not hold good in the case of Smith v. Kinibell, supra, but that case is criticised as being in conflict with the other life estate cases. The real ground of distinction between the two classes of decisions is misapprehended. In the determinable fee cases no intention whatever is indicated by the testator to give only a life estate. The fee is given, and the only limitation is a condition attached that the devisee shall die leaving heirs, issue, children, etc. There the will does not provide that the heir, issue or children shall take the estate upon the death of the devisee, thereby indicating an intention to limit the first estate to one for life, but simply provides the fee shall terminate upon the failure of the devisee to comply with the condition, and the moment the condition is complied with, that which was before a base, conditional or determinable fee becomes a fee simple absolute.
It cannot be seriously contended that under the provisions of the will construed in Smith v. Kimbell, supra, Sarah Jane Spears took but a life estate. No such intention can by any possibility be attributed to the testator. She was, under the provisions of section 13 above referred to, vested with a fee simple title just as effectually as though there had been the common law words of inheritance; but following that gift was the condition, “should the said Sarah Jane Spears die leaving no heirs, I will,” etc., thereby meaning that if she did die leaving heirs the title in her should become a fee simple title of inheritance, but if not, the fee should terminate. One of the peculiarities of a fee determinable is, that upon the happening of the event or the performance of the condition named the title is changed into a fee simple title. Friedman v. Steiner, supra.
There is no conflict or inconsistency whatever between the case of Smith v. Kimbell and other decisions of this court, and ordinarily the language used in this will would lead to the conclusion that the surviving brother, and sister took an estate in fee determinable upon both dying leaving no issue or descendants of issue. We think, however, that in the decision of each of the questions here raised the testator must be held to have intended that the interest of the survivor or survivors to accrue in a share or shares of one or more of the grandchildren dying without issue or descendants of issue should be owned and enjoyed subject to the same restrictions and conditions upon which the original shares are given. We see no other way to give practical effect to the clearly expressed intention that in case of the death of all three without either of them leaving such issue or descendants of issue then surviving, then all of said estate thereby provided for such last named three .grandchildren should descend to the son, John H. Witbecic, and his heirs-at-law. And this view seems to be well supported by authority. It is said in Theobald on Wills (p. 516): “Clauses in a will disposing of the shares of devisees and legatees dying before a given period or event do not, without a positive indication of intention, extend to shares which have once accrued under these clauses so as to pass them a second time. Accrued shares will go with the original shares if there is an intention expressed that they should do so.” And in classifying those conditions which will pass accrued shares as a fifth class, it is said: “And a gift over of the whole is convincing evidence of the same intention. In such a case ‘share’ must have meant every interest accruing, as well as original, for otherwise the estate would go away from the issue piecemeal, whereas it is obvious nothing was intended to go over, but that all should go over at once on failure of issue of all the children, as if all but one had died without issue who was intended to take all.” 29 Am. & Eng. Ency. of Law, 494.
Doe v. Webb, 1 Taunt. 234, was ejectment. The lessors of the plaintiff claimed twenty-five undivided 360ths of the premises in question. If cross-remainders were created by the devise in question the lessors of the plaintiff were not entitled, and in that case a non-suit was to be entered. The character of the devises sufficiently appears from the following extract from the opinion of Mansfield, C. J.: “The method to bring the estate all together is to imply cross-remainders. Here the testatrix devises her moiety of her several manors and lands, and all her moiety of her tithes, etc., treating it as one entire subject of devise, to her husband in the first place. She then adds several devises over, and in each of them she studiously describes her estate by the most collective and comprehensive terms, and devises all that she had before devised, to her sons, and their sons and their daughters, in succession. Afterwards, in default of such issue, she gives the same moiety to her three daughters and the heirs of their bodies as tenants in common, and not as joint tenants; and in default of such issue (not thereby meaning her daughters, for to them she gave estates, respectively, but their heirs of their bodies,) she gave the same to her own right heirs. What was the same? It is evident from every preceding devise that the same was the whole. She had in no part of her will i disposed of less than the whole. It is plain, then, that it was not her intention that a part should go to her/ heir-at-law, but the whole. She has given him nothing,! unless the issue of all her daughters should fail, when, if the heir-at-law was to take anything, he was to take the whole estate.” The judgment was for the defendant.
In 2 Jarman on Wills (R. & T. ed. p. 552) it is said: “Sir G. Jessel, M. R. said (in Maden v. Taylor, 45 L. J. Ch. 569,) that the true rule was laid down in Doe v. Webb, that you must ascertain whether the testator intended the whole estate to go over together. If you once found that to be intended, you were not to let a fraction of it descend to the heir-at-law in the meantime. You were to assume that what was to go over together, being the entire estate, was to remain subject to the prior limitations until the periqd when it was to go over arrived. He thought that principle applied to a case like that before him, where it was plain in one event the whole estate was to g"o over together, although it was possible that another event might happen in which that intention might be disappointed. He therefore held that cross-remainders must be implied between the children of each niece, otherwise, while the particular event was still in suspense, a fraction might, by the death of one child without issue, descend to the heir-at-law.” To the same effect is Doe v. Birkhead, 4 Exch. 110; Douglas v. Andrews, 14 Beav. 347; Dutton v. Crowdy, 33 id. 272; In re Jarman’s Trusts, L. R. 1 Eq. 71.
The twentieth clause of the will provides: “And in no case shall any part of the real estate left by me for their use and benefit, or the proceeds thereof if sold, be advanced or conveyed to said grandchildren, or any one of them, during their lifetime,” and this restriction is consistent with the view that the survivor or survivors must take the accruing share of a deceased brother or sister in conformity with and under the conditions of the will. We think the trustees should hold the share of Henry J. in the real estate, and the proceeds of any real estate sold or to be sold, in their hands for the benefit of Prank M. Witbeck and Gertrude H. Grice, placing to the credit of each an equal part thereof, and manage and control the same, accounting for the income derived therefrom, in all respects as provided in the will for the management of the original shares. If Prank M. Wit-beck or Gertrude H. Grice should die leaving no issue or descendants of issue, his or her share in the one-third of said real estate will pass with his or her original share to the survivor, to be held by the trustees in the same manner as the original shares; and if the last survivor shall die leaving no issue or descendants of issue, then the fee simple title to the whole of the trust real estate must vest in John H. Witbeck and his heirs. If, however, Prank M. Witbeck or Gertrude H. Grice should die leaving* issue or descendants of issue, and afterwards the other should die leaving no issue or descendants of issue, then the share of the last survivor will go back to such issue or descendants of issue of the other.
The provisions of the last sentence of the nineteenth clause, standing alone, are broad enough to carry over the personal estate in the same manner. The twentieth clause, however, provides that the said trustees may advance from said personal estate not to exceed the full amount thereof, and also that they may withhold the income of any one of said grandchildren’s share, except such part thereof as may be necessary for their actual support in case of theif becoming intemperate or otherwise incompetent to manage his or her estate, or shall be a spendthrift, “and upon his or her death the said principal and income so retained shall descend to the issue or descendants of issue born in lawful wedlock of such grandchild, if any, otherwise to the survivor or survivors of said last named three grandchildren.” Giving effect to these provisions, we think the decree of the court below ordering the trustees to pay over and deliver to said Frank M. Witbeck and Gertrude H. Grice, in equal parts, the share of the personal estate left to Henry J. Witbeck, should be affirmed.
We are also of the opinion that the $20,375 which was withheld from Henry J. by the trustees, under the facts shown by the evidence, should be divided equally between Frank M. Witbeck and Gertrude H. Grice. The fact that the trustees had not actually turned this fund back into the principal estate, as they were authorized to do by clause 20 of the will, but kept it separate as a matter of convenience in book-keeping, did not amount to a transfer of it to the individual estate of Henry J. Witbeck.
Appellees contend that the allowance by the trial court of $2500 as solicitors’ fees was error,—first, because the pleadings did not claim any solicitors’ fees; second, that the allowance was excessive; and third, that the fees should, if allowed, be paid out of the residue of the estate in the hands of the trustees other than that involved in this suit. They do not dispute the right of appellants to have some allowance if their claim is properly prosecuted. Solicitors’ fees in cases of this kind, when allowed, are treated as costs, and need not be specifically claimed in the bill. The true interpretation of this will is attended with much difficulty, and the allowance does not appear to be excessive. We said in Woman’s Union Missionary Society v. Mead, 131 Ill. 338: “As to the amounts allowed by the court to the respective parties, they are so far in the discretion of the chancellor that in the absence of proof of the abuse of that discretion we cannot interfere.” In Goodwillie v. Milliman, 56 Ill. 523, the allowance was set aside, but only because upon the face of the record it appeared to be excessive. In determining what fund should pay solicitors’ fees it is announced in Daniell’s Chancery Practice (vol. 2, p. 1431): “But although the rule is that the costs of litigation in the course of administering a will are given out of the general assets in preference to the particular fund, yet if the particular fund has been severed from the residue and the question is merely between the person claiming to be entitled to it, the costs must come out of the particular fund.” Here the controversy is as to the disposition of the share of the deceased legatee, but the questions raised, both below and here, affect the rights of all the parties to the trust estate, and our decision must serve as a guide to the trustees in the future performance of their duties.
The view taken of the case renders the question as to what fund the expenses of the litigation shall be paid from of little importance. We think, however, that in view of all the circumstances of-the case they should be paid out of the'entire estate.
The decree of the circuit court will be reversed in respect to the matters indicated and in all others affirmed. The cause will be remanded, with directions to the circuit court to enter a decree in conformity with the views here expressed, the costs of this appeal to be paid by the trustees as other expenses of the litigation.
Reversed and remanded.