dissenting:
I do not concur in the foregoing opinion. The conclusion reached is manifestly contrary to the plain intent of the testatrix as expressed in the will. The paramount rule in construing wills is to ascertain the intention of the testator and to give to such intent effect, if consistent with the rules of law. (Bradsby v. Wallace, 202 Ill. 239.) This is the first and great rule in the interpretation of wills and to it all other rules must bend. (Smith v. Bell, 6 Pet. 68; Wardner v. Baptist Memorial Board, 232 Ill. 606.) This will provides that the son shall have a life estate, with the right to control, manage, sell or exchange the property and-to re-invest the proceeds as he may think best, but he can only use of the proceeds that which is required for his reasonable expenses for living. It is further provided that if the son should die “without children” the remainder shall go to testatrix’s nearest relatives. When she was disposing of her property she had these grandchildren in mind and must have intended them to take something or nothing. Clearly she intended them to take something. And what could this be but the intermediate estate? (Dowling v. Dowling, L. R. 1 Eq. Cas. 441.) If reasonably possible a will will be so construed as to dispose of the entire estate of the testator. (Scofield v. Olcott, 120 Ill. 362; Craw v. Craw, 210 id. 246.) By this will the testatrix intended to dispose of all her property, the son taking a life interest in the entire estate. She did not mean to give the remainder to the residuary legatees unless her son died without children. The phrases, “die without children,” and “die without issue,” have been construed by this court to mean without having had children or issue. (Field v. Peeples, 180 Ill. 376.) If the son had children, to whom did the testatrix mean that the remainder should go? Why did she mention these grandchildren if she did not mean them to take this remainder? (Ex parte Rogers, 2 Madd. 576.) By necessary implication the children of the son of testatrix should be considered as entitled thereto.
An estate may pass by mere implication without any express words, “and in general, where any implications are allowed they must be such as are necessary or at least highly probable. * * * A will is construed * * * and expounded rather on its own particular circumstances than by any general rules of positive law.” (2 Blackstone’s Com. 381.) If the testator’s meaning cannot be clearly ascertained we are at liberty, and for the sake of certainty in the possession and transmission of estates generally required, to apply such rules of construction as have by long usage been approved and used. (Anderson v. Messinger, 77 C. C. A. 179.) The doctrine that the intent of a testator must be the guiding and controlling rule of interpretation requires, not unfrequently, as was said in Lytle v. Beveridge, 58 N. Y. 592, “a disregard of the usual technical meaning of words and phrases, and, when necessaty, such technical meaning must yield to the evident intent of the testator.” It was further said in that case: “Rules of construction are resorted tp as helps or aids in arriving at the intent of a testator, and ought not to be followed when they lead to results subversive of such intent. There is no rigid rule of law to the effect that words shall only be used in one certain sense, or requiring courts to give language the same interpretation and effect under all circumstances and in every connection. The infinite variety of circumstances that may occur, distinguishing one case from another, in the use of the same words and phrases, renders it impossible to give an absolute and unbending rule for the interpretation of language applicable to all cases.” The rule that the intention of the testator must govern is so strong that in seeking for such intention courts are not restrained by unbending technical rules, but may adopt the most liberal construction without much regard to the grammatical structure of the sentences or the precise definition of the words used. These instruments are sometimes made in ex-tremis and often drawn by unskillful persons. They are therefore entitled to great indulgence and are treated with greater liberality than any other legal instruments. It frequently happens, in reading a loose and carelessly written will, that the meaning of the testator is perfectly obvious, and yet it may be difficult to explain such meaning by any strict rules of interpretation. (Ferson v. Dodge, 23 Pick. 292; 40 Mass. 287.) The implication that can be followed in construing a will must rest upon a legal inference and not upon bare conjecture. (Ferson v. Dodge, supra; O’Hara on Interpretation of Wills, chap. 14, p. 166.) An estate by implication must be apparent on the face of the will and for the purpose of carrying into effect the manifest intention of the testator. Carr v. Porter, 1 McCord’s Ch. (S. C.) *61.
The devise to these grandchildren of the testatrix arises by implication, founded upon expressions in the will from which such an intention on the part of the testatrix is inferred. (Connor v. Gardner, 230 Ill. 258; 15 L. R. A.— N. S.—73, and note.) The common understanding of the language of the will would convey the meaning that if the son died without children the remainder must go to the other relatives of the testatrix, but just as plainly the meaning is conveyed that in the other alternative,—that is, if the son should leave children,—it was intended that these children should take this remainder. The familiar rule of construction that the inclusion of one alternative is the ex-elusion of another, or vice versa, would tend to confirm this conclusion. (Anderson v. Messinger, supra.) Not only would this be the meaning given to these words by the ordinary layman, but the lawyer would almost certainly say, as a matter of first impression, that such' a construction of the will carried out the plain intent of the testatrix. The construction placed upon this will by the majority opinion of the court would not readily suggest itself on the first reading of the will and certainly was not intended by the testatrix. It is a construction that must be searched for. Does it not require a strained and unnatural meaning to be placed upon the words of the will? Rules of law should not be permitted to thus defeat the intention of the testatrix unless they have been long established and upheld by the great weight of authority. It may be admitted that it is “essential to the security of property that a rule should be adhered to when settled, whatever doubt there may be as to the grounds upon which it originally stood;” (Ram on Regal Judgment, p. 230-;) that it is extremely dangerous to shake the authority of decided cases. (Beal on Cardinal Rules of Regal Interpretation, p. 20.) I find no such settled rule, however, upholding the construction placed upon this will by the majority opinion of the court. The precise question here under consideration has never been passed upon by this court, but as, will be shown hereafter, cases have been decided by this court in which this question has been discussed, and the reasoning in those. cases fairly tends to uphold the construction contended for in' this dissent. It is conceded that the decisions in the English courts tend to uphold the conclusion of the opinion, but it is evident from a study of the English authorities that they are not all in harmony on this question and that the rule on this subject has been changed by the modern decisions of those courts. (Anderson v. Messinger, supra.) The great weight of authority in this country is opposed to the rule of construction laid down in the majority opinion.
It has been held in the English courts that while American decisions will be entitled to great respect, yet they can not be treated as controlling or placed on the same footing as the decisions of their own courts. (Beal on Cardinal Rules of Legal Interpretation, p. 47.) It has been rightly said that the English decisions are only “quasi authority” in this country. (Ram on Legal Judgment, p. 293.) The law of this State requires that the common law of England, so far as the same is applicable and,of a general nature, shall be the rule of decision in this State unless repealed by legislative authority. (Hurd’s Stat. 1908, p. 485.) The English cases since the Revolution are not regarded as authority. Upon disputed doctrines in our courts they are entitled to respectful consideration, but where the question relates to the construction or effect of written documents they have no greater weight than may be due to the reasons given in their support. Andrews v. Durant, 11 N. Y. 35. To the same effect are Cathcart v. Robinson, 5 Pet. 264, and Koontz v. Nabb, 16 Md. 549.
No decisions have been cited in the opinion of the court that were decided previous to the American Revolution. The earliest of English decisions cited is Greene v. Ward, 1 Russ. 262, which was decided in 1826, and the latest Scale v. Rawlins, A. C. 342, in 1892. One of the earliest decisions in this country is Carr v. Green, 2 McCord, 75, in which the highest chancery court of South Carolina decided, in 1822, after a review of many of the English authorities, that the words of the will, “the rest and residue of my estate to be divided between my grandsons at the age of twenty-one years, but should they die leaving no lawful issue” then the whole to go to others, manifested a plain intention of the testator to provide distinctly “for the issué of his grandsons, if they should leave any, and if the common sense of the community should be consulted on it there would not, probably, be found one man that would hesitate in deciding that this must have been the intention of the testator.” It appears that the court in deciding this, was in conflict with some of the other courts of that State, and when a law was passed creating a new court of appeals, that court, in 1825, reviewed the same facts in the case of Carr v. Porter, supra, reversing, in effect, the earlier decicision in Carr v. Green, supra. From that day to this the American courts, so far as my attention has been called to them, have given to similar words in wills the construction contended for in Carr v. Green, supra.
In Holton v. White, 23 N. J. L. (Zabr.) 330, the will provided that in case “of the decease of my son Eli before the expiration of said lease, then the house and lot called Oak Island, together with its appurtenances, shall descend to my son Andrew and his heirs and assigns forever.” In discussing that provision of the will that court said (p. 334) : “In the present case the devise over is to Andrew, one of the six children of the testator, on the contingency of Eli’s dying before the expiration of the lease referred to in the former part of the will. It is not a limitation over to the heirs-at-law, but to one of the heirs-at-law. If Eli cannot take this property by implication in case he lived beyond the expiration of the lease, the question is, what was to become of it, according to the intention of the testator ? He did not mean to die intestate in regard to it, for in addition to his declaration in the introductory part of the will, that he means to dispose of such things as God has blessed him with, he makes distinct mention of these very premises. He did not mean that his heirs general should take it, for he gave it in distinct terms to his son Andrew on a certain contingency which did not happen, and, on the same reasoning, it is clear to my mind he did not mean that it should be sold by his executors. I cannot resist the conviction that the intention of the testator, as gathered from the whole will, was to devise these premises to Eli in case he survived the lease, and that he talces an estate in them by necessary implication.”
In Anderson v. Messinger, supra, the United States Court of Appeals had under consideration the words in a will, “if either of my sons die without lineal descendants the one surviving shall take his estate above bequeathed, and if the survivor dies without lineal descendants, then one-half, both of the decedent’s original portion as well as one-half of the portion taken by survivorship, shall go to my brother Peter, the other half to such of my brothers and sisters as may be living at the time of the death of such surviving son,” and decided that in case there were lineal descendants the testator intended to prefer them, rather than the collateral branches of his family,—that this was clear by implication.
In Shaw v. Hoard, 18 Ohio St. 227, in construing the following words in a will: “On the death of either my wife or daughter then the survivor shall have all the property left them by me, and if both die without leaving any heirs of their body, then in that case said property shall be given to my wife’s brother, David Campbell,” that court held that by fair implication the testator intended to give the property to the issue of his wife and daughter after their decease, if they left issue surviving them.
In Lytle v. Beveridge, supra, the court of appeals of New York, in construing in a will the following: “I allow my son Joseph to possess by devise of will the farm I now live on, (describing it,) with all the rights and privileges thereunto belonging, as fully and freely as if I had made him lawful conveyance by full covenant during his natural life, but if he leaves no legitimate heirs, then in that case the property according to my will I allow to revert back to my son David, his heirs or assigns forever, without hindrance of any person whatsoever, as fully and freely as if I had given him. a lawful conveyance,” stated that from the above quoted words the law would imply a devise in fee to the children of Joseph living at the time of his death, and thus give effect to the intent to provide for them in case there should be any such children.
In Wetter v. United Hydraulic Cotton Press Co. 75 Ga. 540, a will gave to a daughter, after she arrived at the age of twenty-one, the estate of the testatrix, but provided that “if said daughter should depart this life leaving no issue or lineal heirs, that the whole of the estate herein bequeathed should go and belong to my mother and sister, as tenants in common, and their heirs forever,” etc. The court, in construing the will, said that nothing was expressly said as to what effect the existence of the children of the daughter was to have on the course of the property, but the only contingency upon which other persons,—in the one case the mother and sister and in the other the next of kin to testatrix,—cart take, was the death of the daughter “without issue or lineal heirs,” and continued: “The inference or implication seems to us plainly to be, that if there were such issue lineal or heirs left by the daughter the property should go to them.” ,
Practically to the same effect as the American decisions just referred to are In re Moore’s Estate, 11 Misc. (N. Y. Delahanty,) 436, Bentley v. Kaufman, 12 Phila. 435, and In re McAlpin’s Estate, 60 Atl. Rep. (Pa.) 321. Rood on Wills (sec. 495) also tends to support the same conclusion, where certain English authorities are cited supporting the text, as does also 1 Spence’s Equitable Jurisdiction, p. 530.
It will be noted that in most, if not all, of the cases just cited there was in the first instance, by the terms of the will, a devise in fee to a certain person, which devise in fee was cut down to a life estate by later provisions of the will. The reasoning of the majority opinion would necessarily be much stronger in support of the construction that is contended for in that opinion as to such a wording than it would where the will plainly states, as it does here, that in the first instance the first taker is only to have a life estate. In discussing this question, Jarman, in his work on Wills, (vol. 1, 6 Bigelow’s Am. ed. *525,) says: “And even where the language of the will necessarily confines the interest of the parent to his life, the children will not generally be held to take by implication. It is extremely probable that the testator intended a benefit to them. But si voluit non dixit. But it seems to me that in such a case the court will lay hold of slight circumstances to raise a gift in the children, and thereby avoid imputing to the testator so extraordinary an intention as that the devisee or legatee over is to become entitled if the first taker have no child, but that the property is not to go to thfe child if there be one, or its parents.” Evidently this eminent author thought the English courts had gone further than they ought in holding that a devise by implication should not arise by words similar to those contained in this will. It will be noted that he said it is extremely probable that the testator intended a benefit to them, and that the construction contended for in the majority opinion imputes to the testator an extraordinary intention.
The latest authority that has been called to my attention is Beilstein v. Beilstein, 194 Pa. St. 152, and decided in 1899. That decision is precisely in point. In construing the following language of a will, “It is my desire that my daughter, Gertie Beilstein, shall receive the income of my property * * * as long as she lives, but should she die without leaving a family” then the remainder to the testator’s brothers and sisters, that court held (p. 154) : “The devise over in case Gertie should die ‘without leaving a family’ is an implied devise to her family if she should leave one. It is only if she does not that the devise over is to take effect, and there is a necessary implication that in the other unexpressed contingency of her leaving a family the estate is to go to them. This is practically assumed without question in the long line of cases on the subject,”— citing authorities. That the construction here contended for was generally understood to be proper by the courts of this country is very clear from Washburn on Real Property, (vol. 1, 6th ed. sec. 192,) where that author says: “An instance of an estate tail by construction, where there is no direct limitation to the heirs of the donee’s body, would be an estate to A, with a proviso that if he shall die without heirs of his body the estate shall revert to the donor or go over to one in remainder. Here, it will be perceived, there was no direct limitation to the heirs of A, and it is too plain for doubt that the donor intended the heirs of his. body should take it at his decease, for he gives it over, or reserves it, in case he has no such heirs, and only in that contingency.”
It may be conceded, as stated in the majority opinion, that some of the decisions of the American courts just cited did not all have under consideration the exact question in this case, and it may also be conceded, as suggested, that on some other questions as to the construction of wills, rules of law are laid down in some of those decisions not in harmony with the decisions of this court; but the reasoning in these cases, whether the question under consideration was the exact one in this case or a kindred question, tends strongly to uphold the construction contended for in this dissent. Moreover, as I have stated, the decisions in our own court, while not decisive, are strongly persuasive, and the profession, in reading them, would naturally conclude that this court was inclined to follow the American rather than the English authorities on this subject.
In Schaefer v. Schaefer, 141 Ill. 337, the will under consideration provided: “I do bequeath to my beloved daughter, * * * the following property (describing it) in trust for her sole use and benefit, and of her children, and their children thereafter. But in the event that my daughter * * * should die and leave no children as heirs to the within mentioned property, then it is my will and desire that all of said property shall go to my brother, Jeremiah Coughly, * * * and to his heirs and assigns.” This court, through the late Justice Baker, in construing this will, stated (p. 344): “Further evidence of the intention to give said children the remainder in fee is amply afforded by the provision that if appellee ‘should die and leave no children, * * * then * * * said property shall go to my brother, Jeremiah Coughly, * * * and his heirs and assigns forever.’ The necessary implication from this language is, that if there were children of appellee, then, primarily, the property should go to them and to their heirs and assigns forever.” The holding in that case that the children were entitled to the remainder did not rest alone upon the clause of the will last quoted, but it is manifest from the last sentence quoted from Judge Baker’s opinion that the court then had no doubt that a devise would necessarily be implied from language such as is contained in the will here in question.
In King v. King, 168 Ill. 273, where the question as to devises by implication was exhaustively presented in the briefs, the will there under consideration provided: “It is my will that in the event of the death of the wife of said William Jones King, and of his leaving no children surviving him, that then, and in such case, the said trustees, after the death of said William Jones King, shall convey and transfer to my children and their descendants all the estate, both real and personal, then in their hands .or remaining undisposed of,” etc. In construing this will this court stated (p. 286) : “We think the intention of the testator was that the estate should go to the issue of William Jones King, if he left any.” It is true that in that case there were other provisions of the will which tended to uphold the same conclusion, and the court did not rest its opinion solely upon the intention of the testator as drawn from the words quoted.
In Orr v. Yates, 209 Ill. 222, the will provided that the testatrix devised to Jefferson Orr, trustee, certain described land, “constituting what is commonly known and called the Putz farm, to have and to hold in trust for the sole use and benefit of Mary Maria Yates, for and during her natural life, and in the event of the death of the said Mary Maria Yates without child or children or descendants of child, then to have and to hold for the sole use and benefit of Lydia Yates, my wife, if she shall be living, during her natural life, and at the death of Lydia- Yates, my wife, and Mary Maria Yates, my daughter, (if said Mary Maria Yates dies without child or descendants of child,) the fee to the said last described tract of land known as the Putz place shall be equally divided between my brothers and sisters and their heirs and assigns,” etc. In discussing the 'will this court said, speaking by Mr. Justice Wilkin (p. 238) : “The only uncertainty is as to what shall be done with the trust property in case Mary Maria Yates dies leaving issue. Will it go to such issue in fee, or will it fall back into the estate as intestate property and descend to the heirs of William H. Yates? Our opinion is that it will vest in the issue of Mary Maria Yates. That' seems to be the fair inference from the language used. If she dies without issue, then the trust continues during the life of Lydia Yates and the fee vests in the brothers and sisters. If Mary Maria Yates dies leaving issue, that is clearly the end of the trust, and it seems to be the intention of the testator that the fee shall vest in her issue. This construction is in harmony with the rule of law that where a party disposes of his estate the presumption is that he intended to dispose of all of it, and the courts will so construe' the will as to leave no part of the estate as intestate property.”
While it is conceded that in none of these three cases did the decision turn upon wording precisely like the one in the will here under consideration, yet I am confident that the profession generally adopted the view that in those decisions .(and others of a similar nature where the reasoning is not quite so strong or clear) the construction insisted upon in this dissent was intended to be laid down. In note 2 to section 207 of Kales on Future Interests that author says: “Gift to issue of first taker raised by implication from gift over if life tenant leaves no issue,”—citing Orr v. Yates, supra, and other Illinois cases.
In the recent case of Stisser v. Stisser, 235 Ill. 207, this court construed the following words of the will: “It is my will that should either of the above named children (naming them) die without issue,” then and in that case the property shall be disposed of in a certain way, and stated (p. 210) : “We think under said clause the remainder, after the death of either of said life tenants, in the property described in said clauses 4, 5 and 6 was devised, by necessary implication, to the issue of the respective life tenants, if they had issue.” This statement may be considered dictum, as the question was not necessary for the decision of the case or exhaustively discussed in the briefs; still the reasoning there, in connection with the former decisions of this court, might almost be held judicial dictum as distinguished from mere obiter dictum, and as that rule was laid down by this court, speaking by the late Justice Wilkin, in Law v. Grommes, 158 Ill. 492.
The decided weight of American authority is against the construction of the will upheld by the majority opinion of the court. If the English and American authorities are in conflict, surely the American courts ought to follow the American decisions rather than the English, unless sound reasoning and principle require the following of the English authorities; but when not only the American authorities are substantially, if not entirely, unanimous on the question, but also the reasoning in the decisions of our own ■court tends to support the construction given to this will by the chancellor in the court below, then before this court should hold to the contrary we ought to be convinced that the rule of the American decisions is not sound in principle and is manifestly mischievous in its results. This court has time and again laid down the doctrine that the intention of the testator as stated in the will must control when not against public policy or public law. It is the courts’ duty to construe wills as they find them, and not to make them. {Illinois Land and Loan Co. v. Bonner, 75 Ill. 315.) But courts may, in effect, make wills for parties by giving them a mistaken interpretation. While the doctrine of implication must be resorted to cautiously in the construction of wills, the court should not hesitate to resort to that doctrine when thus, only, can the manifest intention of the testator be carried out. Does not the construction given to the words by the majority opinion rest to a far greater extent on conjecture than does the construction given by the trial court? The testatrix, without question, intended that her son should only have a life estate in her property, with the right to control and manage it and with the right to use sufficient of the proceeds for his support and comfort; but is it not a most violent inference that she intended that if he had children he should have a fee simple title instead of a life interest? The intention of a testator “is to be collected from the whole will taken together. Every word is to have its effect and every word is to be taken according to the natural and common import.” (Thellusson v. Woodford, 4 Ves. 329.) The rule just quoted from this early English authority has always been followed in this court. Applying it in this case and giving to the words of this will their natural and common meaning, it should be held that the intermediate estate in remainder was intended to go to the grandchildren of the testatrix, if any such were born to her son. To give the estate to such issue leaves none of it intestate and will do no violence to the language of the will, but will carry into effect the purpose of the testatrix clearly implied from the language she has used in that instrument.
The only justification, it seems to me, for construing the will in accordance with the rule laid down in the opinion of the court is the decisions of the English courts during the past century. Those courts seem to apply fixed rules to the construction of devises to an extent not generally adopted in this country. (Anderson v. Messinger, supra.) In following their decisions on this question are we not adopting an arbitrary rule for its own sake rather than to carry out the intent of the will, thus defeating instead of promoting justice? By so doing are we not imputing to the testatrix the “extraordinary intention” (1 Jarman, supra,) that other and more distant relatives are to become entitled to the remainder if the son has no children, but that the remainder is not to go to these children, if any there be? Is it not “too plain for doubt” (1 Washburn, supra,) that the testatrix intended these grandchildren to take this remainder?
Hand and Farmer, JJ.: We concur in the dissenting opinion of Mr. Justice Carter.