dissenting:
It is agreed that appellee (the widow) took a life estate in the premises, and the sole question here to be determined is, did she take one-half of the fee?
In construing a will the entire will must be considered. B)r the second paragraph of the will the appellee is given a life estate in thé premises in controversy. By the third paragraph she is given one-third of the rents during life, arising from the lands devised to the son Hugh D. Grigsby, and by the fifth she is given one-half of the estate remaining after the payment of debts. The property which is given to the appellee under those provisions of the will she is given enjoyment of immediately, and it does not seem reasonable that in addition to the property which is thus given to the appellee the testator intended she should have one-half of the fee in the premises in which she is given a life estate, which she would not come into possession of during her life. In Carpenter v. VanOlinder, 127 Ill. 42, on page 47, it was said: “There never was an instance where an estate for life was expressly devised to the first taker that the devisor intended he should have any more.” We think it apparent, when the will is considered as a whole, that the testator intended that his widow should enjoy the use of the homestead during her life and upon her death it should go to his then living heirs; that the words, “at her death to revert to my estate,” signify that upon the death of the appellee the fee underlying the life estate in the homestead should be divided among his then heirs. There is no expression found within the four- corners of the will which indicates a desire on the part of the testator that any part of his real estate should go to the heirs of his widow, which would be the case if the widow took a life estate and at her death took one-half the fee in the homestead premises, (Johnson v. Askey, 190 Ill. 58,) and there is nothing in the will to indicate that the testator intended his widow should have a life estate in the homestead and at the same time an undivided one-half of the fee therein. On the contrary, it is quite evident that the testator proceeded upon the assumption that the widow would occupy the homestead during her life; that that part of his estate would not be divided under paragraph 5 of the will, as the portion of the estate covered by that paragraph of the will he evidently intended should be divided immediately upon payment of his debts; that his children or their children would survive the widow, and upon her death the portion of his estate occupied by the widow would become disencumbered of her life estate and would then be divided among his then living heirs. It was said in the Johnson case, that while the law favors the vesting of remainders and will fix the time at which they vest at the time of the death of the testator rather than at the period of distribution, where it clearly appears from the entire will that it was not the intention of the testator that the remainder should vest at the time of his death but at the period of distribution such intention will be carried out by the courts.
We have reached the conclusion that the appellee took only a life estate in the premises sought to be partitioned, and that the trial court erred in holding that she was the owner of one-half of the fee therein.