delivered the opinion of the court:
The controversy in this case is over the construction of the eighteenth and nineteenth clauses of the will of John Thomas, deceased. By the nineteenth clause the executors of the will are directed to lease for ten years after the death of the testator, and until the death or re-marriage of his widow, certain real estate, and, after paying taxes, assessments, repairs, insurance and the costs and charges of executing the trust in reference to said real estate, to distribute the net proceeds according to the distribution directed in the eighteenth clause. By the eighteenth clause the executors are directed to sell at public or private sale, “at such time or times and in such manner and upon such terms” as they may deem best for the interests of the estate, all the testator’s property not otherwise specifically bequeathed or devised by the will and all property which by the happening of any contingency in the will mentioned may revert to the estate, “except the property described in clause 19 hereof,” and certain other property, and, after deducting costs and taxes and paying funeral expenses and debts, to divide the balance between the widow and eight children of the testator, the widow to' receive one-fourth of such balance and the other three-fourths to be divided equally among the eight children. In case of the death of any of the persons mentioned in this clause, that portion of his or her share not theretofore received by him or her is to be paid to his or her heirs-at-law.
Appellants contend that by these two clauses the title to the real estate described in the nineteenth clause is vested in the executors of the will, in trust, to be by them sold after the expiration of the period during which they are to lease the same, and that the proceeds are to be divided according to the distribution directed in the eighteenth clause. Appellees, on the other hand, insist that the fee of said real estate was not disposed of by the will, but descended to the heirs of John Thomas, deceased, as intestate property, subject to the right of the executors to lease it for the period mentioned, and that the widow of the testator having died and ten years having elapsed since the death of the testator, the executors have no further authority or control over said real estate. The circuit court adopted the construction contended for by appellees, and in our judgment that construction is the correct one for the following reasons:
First—The eighteenth clause expressly excepts the real estate described in the nineteenth clause when it confers upon the executors power to sell such property as is not specifically bequeathed or devised by the will and such property as might revert to the estate by the happening of some contingency mentioned in the will. Appellants’ contention that the exception refers merely to the time when such property shall be sold and does not exclude it from the general power given to the executors to sell is not sustained by the phraseology adopted by the testator in the eighteenth clause.
Second—No language is found in the nineteenth clause which can be considered as authorizing the executors to sell the property therein described, or as authorizing them to divide any proceeds of the sale among the persons mentioned in the eighteenth clause. Appellants regard the words “net proceeds,” as used in the nineteenth clause, as referring to the net proceeds of a sale of the property. Obviously those words, as used in that clause, refer to the net proceeds derived from the rents. The executors are directed to lease the property and to first pay taxes, assessments, repairs, insurance, and the costs and charges connected with leasing the property and collecting the rents, and to then divide the “net proceeds” according to the distribution directed in clause 18. The items directed to be first paid are mostly annual charges against the real estate. The intention of the testator, therefore, undoubtedly was that the rents -derived from the property should each year be first applied to the payment of the items of expense enumerated, and the balance, being the net proceeds of the rents, should be distributed annually among the persons and in the proportions as specified in the eighteenth clause.
Third—The testator in the sixteenth clause of the will used language which in express terms directed the executors, after the death or re-marriage of the widow, to dispose of the property therein described in accordance with the provisions of the eighteenth clause. Had he intended that the property described in the nineteenth clause should be disposed of in the same manner he certainly would have used language equally clear in expressing such intention.
Fourth—The distribution contemplated by the eighteenth clause was evidently one which might be made during the widowhood of Magdalena Thomas, since she was to receive one-fourth of all sums distributed under that clause, and it clearly appears to have been the intention of the testator that the interest of his widow in his estate should be reduced in case of her re-marriage. The property described in the nineteenth clause was to be leased by the executors until the death her re-marriage of the widow. Had the testator not excepted that property from the power of sale and distribution provided by the eighteenth clause, when the time arrived for such' sale and distribution of this property the widow would have been either dead or remarried, and the proceeds, in the event of her death, could not have been paid to her, and in the event of her marriage her interest in the testator’s estate would have been thereby increased instead of diminished. In our judgment the testator had this in mind when he inserted the exception in the eighteenth clause, and specifically and intentionally excepted this property from the general power of sale in the eighteenth clause in order that it might, after the death or re-marriage of the widow, pass to his children and their descendants in accordance with the statute of descent of this State. A contrary construction would give to the descendants of his widow, Magdalena Thomas, resulting from her marriage to Holdner, (which was her first marriage,) who are strangers to the blood of the testator, an interest in his estate. There is nothing in the will to show any intention on the part of the testator to give any of his property to such descendants of his widow.
We are not unmindful of the rule that in determining the intention of the testator the presumption of law is that he intended by his will to dispose of all his property and to leave none as intestate estate, yet, as said in Wixon v. Watson, 214 Ill. 158, “this is only a presumption and cannot be permitted to overcome the expressed language of the will.” The decree of the circuit court will be affirmed.
Decree affirmed.