delivered the opinion of the court:
The defendants in error made a motion to dismiss the writ of error in this case on the ground that this court has no jurisdiction of the subject matter of this suit, as a freehold is not involved, which motion was reserved to the hearing.
The seventh assignment of error is as follows: “The court erred in decreeing that William E. Millar take and have the lands devised to him by the will of William Millar free from the interest of any other person, and in not decreeing that he had forfeited his interest in said lands and that the same should be divided as intestate estate.”
If the defendant William B. Millar had forfeited his title to the lands devised to him by William Millar by reason of the non-payment of the bequests to Hannah D. Vause and Mary F. VanMeter, and the title thereto, by reason of such forfeiture, had vested in all the heirs of William Millar, to hold that William B. Millar took said lands in fee would be to deprive the plaintiff in error, she being one of said heirs, of a freehold estate. On the other hand, to hold that William B. Millar had forfeited his interest in said lands by reason of the non-payment of said bequests, and to decree that the title thereto did not pass to him by reason thereof, but that said lands were intestate property and descended to the heirs of said William Millar, would be to deprive William B. Millar of a freehold estate. In the case of Sanford v. Kane, 127 Ill. 591, we said (p. 597): “A freehold is * * * involved in all cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, but it is equally clear that a freehold is involved, within the meaning of the constitution and statute, where the title to a freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining and the other party losing the estate.” Under the doctrine announced in that case and subsequent cases there can be no question but that a freehold is involved in this case. The motion to dismiss the writ of error will therefore be denied.
It is contended that a court of equity has no jurisdiction to entertain a bill at the suit of the complainant to construe said will, as no trust is involved. The construction of wills, in proper cases, falls within a well recognized head of equity jurisdiction. (Whitman v. Fisher, 74 Ill. 147; Longwith v. Riggs, 123 id. 258; Woman’s Union Missionary Society v. Mead, 131 id. 338.) The jurisdiction of the court in that regard was not challenged in the court below by the plaintiff in error, and such question cannot now be raised for the first time in this court. (Richards v. Lake Shore and Michigan Southern Railway Co. 124 Ill. 516; Central Elevator Co. v. People, 174 id. 203.) It is not, however, clear that a trust was not involved. In Minkler v. Simons, 172 Ill. 323, on page 326 we say: “The executors were clothed with power to sell the real estate belonging to the testator at the time of his death, and, upon making sale, distribute the proceeds in the mode pointed out in the will, different from the disposition provided by the Statute of Descent. A trust was therefore created, and any one interested in the distribution of the trust property had the right to invoke the aid of a court of equity to obtain a construction of the will and enforce the trust as provided therein.” Here the executors had reduced the personal property to possession. Twenty-four hundred dollars thereof remained in their hands, and a controversy had arisen as to the manner in which the same should be distributed. To determine the question a construction of the will was necessary, and we see no reason why the complainant might not invoke the aid of a court of equity to obtain the construction of the will and thereby protect himself in the execution of his trust, especially as he and his co-executor disagreed as to the proper interpretation of the will.
William Miliar, by the third, fourth, sixth, seventh and eighth paragraphs of his will, manifested a clear intention to exclude five of his children from all interest in his estate other than such as is given to them, respectively, by said paragraphs. A considerable portion of the estate of William Millar is intestate property. A testator cannot disinherit his heir unless he devises his estate to some one else. This doctrine is fully recog-' nized by this court in Lawrence v. Smith, 163 Ill. 149, and in Minkler v. Simons, supra. We are therefore of the opinion that the circuit court erred in holding that Garrett V. Millar, Adam Millar, Elizabeth Ann Dora, Jemima H. Vause and Sarah M. Parsons, or their heirs in case of their death, took no part of the intestate estate of William Millar in the hands of said executors.
The circuit court by its decree attempted to determine the manner in which the West Virginia lands belonging to William Millar at the time of his death, or the proceeds thereof in case of sale, should be distributed. The courts of the State of Illinois have no jurisdiction over lands located in the State of West Virginia, and the decree as to said lands is void. (West v. Fitz, 109 Ill. 425; McCartney v. Osburn, 118 id. 403; Osburn v. McCartney, 121 id. 408.) Neither did the court have jurisdiction over the proceeds thereof by virtue of the agreement of the heirs of William Millar providing for a sale thereof, as James H. Clark, the trustee, is not a party'to this suit and said fund is not in court and subject to the order of the court, and jurisdiction was not conferred upon the court over the subject matter thereof by said agreement. In Richards v. Lake Shore and Michigan Southern Railway Co. supra, we say (p. 519): “It is a fundamental principle that parties to a suit cannot, by consent, confer jurisdiction with respect to the subject matter of the suit by stipulation or consent, for that is fixed by law and is consequently beyond the control of the parties.”
It is evident from the language of paragraph 11 of the will that the title to the lands therein devised passed absolutely to William E. Millar, charged with the payment of the bequests of $1000 each, contained in paragraphs 9 and 10, to Hannah D. Vause and Mary F. VanMeter. Daly v. Wilkie, 111 Ill. 382.
For the errors above indicated the decree of the circuit court is reversed and the cause remanded to that court for dispositidn in accordance with the views herein expressed.
Reversed and remanded.