On Petition for Rehearing.
Jordan, C. J.Appellants have filed a petition for rehearing in this appeal, wherein they assign numerous reasons, and in support thereof they present an extended argument. Their counsel still appear to be impressed with the view that all that passed to the wife of the testator was merely the rents and profits of the land, and all that he intended to give to his nieces and nephews (appellees herein) was the mere unconsumed portion of these rents and profits remaimng at the death of his wife. It is claimed that, in reaching the conclusion we did at the former hearing, we overlooked, ignored and overtMew well-settled rules of law. Upon this feature, they especially argue that we ignored *699the old rule of the common law which they advanced, to the effect that a general devise of real estate, that does not define the interest to be taken by the devisee, passes only a life estate, unless it affirmatively appears from the will that a greater estate was intended. They insist that this is a rule of law and not of construction, and seemingly insist that it is an inflexible rule, and one to which all other rules pertaining to the interpretation of wills must become subordinate. It is argued that we erred in overlooking the fact, as they claim, that the devise in the will to appellees is a general one, containing no words of inheritance or limitation, and no words defining the extent of the interest to be taken by them, therefore, the common-law rule for which they contend must prevail, and thereunder it must be held that the devise to appellees passed to them only a life estate.
10. Upon the proposition that a devise of the rents and profits or the income of land is in effect a devise of the land itself, we, in addition to the authorities cited in the original opinion, refer to the following: Merrill v. American, etc., Union (1905), 73 N. H. 414, 62 Atl. 647, 3 L. R. A. (N. S.) 1143, 111 Am. St. 632; Reed v. Reed (1812), 9 Mass. *372; Sampson v. Randall (1881), 72 Me. 109; Diament v. Lore (1865), 31 N. J. L. 220.
It is certainly immaterial what language or terms the testator, employed to express his intention that his wife was to be invested with a life estate in his lands. That he carried out his intention by the use of language well recognized by law, is sufficient. We have, therefore, the settled fact that his wife took a life estate in all his lands, other than that which he devised to his sister, Margaret M. Sprole. The inquiry then arises, What disposition, if any, did he make of the fee-simple interest which he held? This fee interest, as shown, amounted to about ninety-five per cent of his entire estate.
Counsel for appellants, in their brief on petition for re*700hearing, still assert that as to his fee interest in his lands the testator intended to and did die intestate, and, therefore, at his death the lands devised to his wife for life descended to her in fee simple as his heir, and at her death they descended to appellants as her heirs under the law.
9. 17. At the former hearing we did not ignore the common-law rule, but were convinced by the consideration of the will in its entirety, as well as by certain portions thereof, that the intention of the testator, to invest appellees with the fee simple in the lands devised to them, was plainly shown. Therefore, according to the decisions, to which we shall hereafter refer, there was no room for the application of this rule. The principle is well settled that in a testamentary devise of land, the term “heirs,” or any other legal word of inheritance, is not necessary to pass the fee to the devisee. As appellants now seem to rest their case upon the common-law rule, which they apparently insist must absolutely control in the construction of the will in this case, we shall give this rule a full consideration.
While it is true that it is still in force in this State, nevertheless, it has been materially modified by our legislature, and as now recognized by this court it will not be permitted to defeat the intention of a testator, where his intention can reasonably be discovered from the will itself. Or, in other words, the rule in question is not, as appellants insist, an inflexible one of law, but is one of construction, and cannot be permitted to prevail over the intention of the testator, but is subordinate to such intention, and can operate only in connection with other well-settled rules applicable to the construction or interpretation of wills.
It is certainly true that a court in construing a will is not to be controlled by the bare provision therein devising the lands, which does not name the interest intended to be taken by the devisee, and hold that such devise must be limited or confined to a life estate only, without regard to or con*701sideration of other provisions, clauses or terms of such instrument. Wills are not to be so construed.
Section 3123 Burns 1908, §2567 R. S. 1881, which is a part of the statutes of this State pertaining to wills, provides that “every devise, in terms denoting the testator’s intention to devise his entire interest in all his real or personal property, shall be construed to pass all of the estate in such property, including estates for the life of another, which he was entitled to devise at his death.” This section provides a rule of construction, and appellants’ counsel apparently overlook the fact that the common-law rule for which they contend has been thereby modified, and that the intention of the testator, when ascertained, must prevail, notwithstanding said rule. Korf v. Gerichs (1896), 145 Ind. 134; Mills v. Franklin (1891), 128 Ind. 444.
In Korf v. Gerichs, supra, the court, speaking by Hackney, J., after referring to and quoting from §3123, supra, said: “While this statute does not defeat the common-law rule, it implies that that rule shall not prevail as against the intention of the testator 'to devise his entire interest.’ The rule that the testator’s intention shall prevail, notwithstanding the common law, has been applied in this State. Ross v. Ross [1893], 135 Ind. 367; Mills v. Franklin [1891], 128 Ind. 444; Morgan v. McNeeley [1891], 126 Ind. 537; Patterson v. Nixon [1881], 79 Ind. 251. That it is the general rule for the construction of wills that the intention of the testator is of first importance, is without question. One rule of intention is that a testator will not be presumed to have intended partial intestacy, unless the language of the will compels such construction. * * * This rule has been applied to defeat that of the common law, above referred to in Morgan v. McNeeley, supra, and Mills v. Franklin, supra. Partial intestacy would be written upon each of the three devises to the appellees, if the appellant’s contention should control. * * * In speaking of the rule of the common law, this court said in Roy v. Rowe [1883], 90 Ind. *70254: 'This rule often operates in contradiction of the rule that the testator’s intention shall prevail, especially in the case of wills made by persons unskilled in the law; for the common mind will usually suppose that a general devise, without limitation, carries the whole estate of the testator. Therefore, if the will contain any expression, in addition to the general devise, indicating an intention to pass a fee simple, the court will use this to bear out the intention; though it must, in some way, affirmatively appear, courts are easily satisfied that an estate of inheritance was intended. Cleveland v. Spilman [1865], 25 Ind. 95. They are always ready to adopt any plausible excuse for rescuing particular cases from the wrong direction, which the general rule would give them. 2 Redfield, Wills [3d ed.] *327.’ We think, in view of the statute above quoted, that this proposition could have been made even stronger by stating that the common-law rule will not be allowed to defeat the testator’s intention, where that intention can be otherwise reasonably ascertained. The common-law rule at most is but a guide to the ascertainment of the testator’s intention, and it must take its place in connection with the other established rules for like purpose. To give that rule the control of the question made by the appellant, would set at naught the rule against partial intestacy.”
The argument of appellants’ counsel, that the rule in question is one of law and nob of construction, is certainly refuted by the holding of this court in the case of Korf v. Gerichs, supra. As there said, it is, at most, ''but a guide to the ascertainment of the testator’s intention, and must take its place in connection with other established rules for like purpose.”
In the case of Mills v. Franklin, supra, this court also considered the rule as one of construction, for it is there said: “Admitting that this rule of construction is in force, as stated in Roy v. Rowe [1883], 90 Ind. 54, yet it is a somewhat technical rule of construction, and is not applied where *703the other expressions and language of the will indicate an intention of the testator to pass a fee simple, and due consideration must be given to other well-settled rules of construction.”
13. One of the infirmities that impress the argument of appellants’ counsel is their effort to make a will for the testator according to their own views, instead of properly construing the one he actually made. Turning again to the provisions of the will of James W. Brown, it will be seen that after making a devise of the life estate to his wife under item one, he then, in item two, positively directs that upon her death “all of the property” devised to her for her own use and benefit during her life, that shall be remaining, shall be divided into eight equal parts, etc., and go to the beneficiaries therein named— kindred of his own blood. Evidently what he meant by the word “remaining,” was the remainder over of the lands devised to his wife, that she had not sold and used the proceeds thereof for her maintenance and support, under the power with which she was invested. By the language all “which shall be remaining shall be divided into eight equal parts,” and one-eighth given to the devisees as therein mentioned, the intention of the testator to vest the fee is evident, and therefore may be said affirmatively to appear.
9. The fact that said decedent made a will creates a strong presumption of his intention to derise his entire interest in all his property, both real and personal, which he was entitled to devise at the time of his death. This fact, coupled with the further fact that he made no provision or gave no direction. that the part of his estate which he devised to appellees — the kindred of his own blood —should at any time pass beyond them, indicates that he intended them to enjoy the property given to them absolutely. Roy v. Rowe, supra; Mills v. Franklin, supra.
It is unreasonable to argue that he, in the disposition of his property, intended to create two life estates, one in favor *704of his wife, and the other in favor of the appellees, making no testamentary disposition whatever of the fee of his valuable real property; or, in other words, leaving it to be controlled by the law of descent.
Referring again to the introductory clause of this will, it will be observed that the testator thereby declares his intention to dispose of his property; not merely a portion thereof, but, as he declares, “my property,” manifestly meaning all his property. According to the meaning of the term “disposition,” it was his purpose to distribute all his property under and by the written instrument that immediately followed this introductory clause, which instrument or document he declared to be his last will.
In the case of Pattison v. Doe (1855), 7 Ind. 282, the will there involved was executed by Edward Pattison in 1827, when the common-law rule was in force in this State. By this will the testator devised to each of his seven sons a tract of land, reserving a life estate in one tract to his wife. He also gave specific and pecuniary legacies to his two daughters. The will contained a residuary clause disposing of the remainder of his property. By the fourth item of his will he devised to his son James Pattison a certain described tract of land, without naming the interest intended to be passed. In an action involving this will, the lower court held that James Pattison took a life estate only under the devise in question. On appeal, the judgment below was held to be erroneous, and a reversal followed. In that case this court said: “The will disposed of the entire estate of the testator; and it would be subversive of the first and most obvious rule of construction, that is, the intention of the testator, to hold that a life estate only passed by the devise. * * * If, upon examining the entire will, the intention to pass a fee is apparent, a fee will pass, although the word heirs is not used. Doe v. Harter [1845], 7 Blackf. 488. That such was the intention of the testator appears from the fact already adverted to, that he disposed of all *705his property; and from the fact that the devises are all alike, the word heirs not occurring in the entire will.”
13. 16. Without any further comment, we are satisfied that the conclusion we reached in the former hearing, that appellees took a fee in the property devised to them by the will of James W. Brown, was correct. We again affirm, for the reasons stated in our original opinion, that no question for the taxation of costs is presented.
14. Appellants in their petition also request a rehearing in this cause in respect to the will of Agnes C. Brown. Under our holding, however, we are fully satisfied that her will was properly construed, and that no reasons are presented for a rehearing upon the construction of her will.
Appellants’ petition for rehearing is in all things overruled.