On Petition for Rehearing.
Caldwell, C. J.1. 2. *4744. *473An examination of the briefs filed in support of plaintiff’s petition for a rehearing convinces us that we did not succeed in making ourselves entirely clear in some phases of the original opinion. Certain language of the will considered apart from what follows, in effect devises and bequeaths to Alonzo C. McMillan the undivided one-half of the residue of the real and personal estate of the testator. As indicated in the original opinion, such language constitutes a general devise of such real estate, and it is therefore sufficient of itself to create in him an estate in lands only for the period of his natural life. Being coupled with a general bequest of personal property, however, the power of the language of the general devise is augmented to the extent that, severed from the language immediately following, it is sufficient to create a *474fee, the contrary not appearing. The rule that the fact that language bequeathing personal property in general terms is coupled with language devising real estate in general terms increases the power of the latter, is a mere rule of construction that readily yields to a clearly expressed contrary intention. Such clearly expressed contrary intention is indicated by the language immediately following, towit: “And that it shall be held by him not in fee simple.” Our analysis is to the effect that the testator devised real estate by the use of words, which under the common-law rule in force in this State, of themselves create but a life estate; but by recourse to such rule of construction, we should be compelled to say that a fee rather than a life estate was intended. However, the language immediately following,as abovequoted, being plain and unmistakable, it becomes both unnecessary and improper to apply such rule of construction. It follows that the language of the devise must be held within the limits of its common-law potency, and that, considered in connection with the language quoted, it is sufficient to create but a life estate. It is probably more apt to state that a life estate results from construction rather than implication as expressed in the original opinion.
We' do not overlook the fact that the language of the will is “not in fee simple, but in trust” etc., and that such language apparently creates an antithetic relation between an estate in fee simple and an estate in trust. Such conclusion, however, results only from a superficial examination of such language, disassociated from what precedes it. An estate in trust is not and can not be made the antithesis of an estate in fee simple. The one expression has reference to the quality of the estate; *475the other to its quantity. The expression “fee simple” defines the quantity of the estate, regardless of whether it is owned individually, or held for the use and benefit of another, while an estate in trust may in quantity be a fee simple, for life or for a term of years. The provision for the division of the residue between Alonzo C. McMillan and his sister imports an estate for the individual benefit of each. There follows a clause specifying the tract devised to the former. Individual benefit is still indicated. Under the circumstances, we are firmly of the opinion that if the testator intended to create an estate in trust, rather than an estate for the benefit of Alonzo, the language “and that it shall be held by him not in fee simple” is very inapt. We adhere to our original conclusion as to the nature of the estate created.
However, a deduction conditionally made by the original opinion to the effect that any other interpretation of the will than as therein and herein indicated would result in partial intestacy, is possibly not Justified. On the assumption that the testator intended to create an estate in trust rather than an estate for the individual benefit of Alonzo C. McMillan, the phrase “not in fee simple” should probably he held not to reduce the estate imported by the preceding language, but rather as used antithetically to the phrase, “but in trust.” On such assumption, the estate in trust, if created, would be in quantity a fee. Such assumption, however, as we have indicated, is not allowable. In effect, we applied the rule in Shelley’s Case in the original opinion in arriying at the conclusion that the will created in Alonzo C. McMillan an estate tail, and that such estate, by virtue of the statute, became a fee simple. It follows that the argument that we ran counter in part to the actual *476intent of the testator is not effective. Every devise coming within the rule in Shelley’s Case is controlled by it, even though the actual intent of the testator is thereby thwarted. Bonner v. Bonner (1901), 28 Ind. App. 147, 62 N. E. 497; Hamilton v. Sidwell, supra, note p. 1039.
Petition for rehearing overruled.
Note. — Reported in 110 N. E. 716, 112 N. E. 894. See under (1), (3) 40 Cyc 1575, 1577; (2) 40 Cye 1607; (9), (10) 40 Cyo 1595-1602.