OPINION DENYING A PETITION POR A REHEARING.
The opinion of the court was delivered by
Mason, J.:In the opinion heretofore filed in this case this language was used:
“We do not at this time pass upon the interpretation or effect of the will, for no definite question with re-*374sped thereto has been argued. The purpose of the testator seems to have been that the trustees should hold the $8000 until the children became of age, in the meantime paying interest to them and their mother, and then turn the principal over to her unless she had remarried, in which case' it should be divided among the three. At all events the children were intended to be beneficiaries of the trust to some extent, and the surviving child has apparently an interest in its continuance.”
In a petition for a rehearing it is argued that what is said as to the apparent purpose of the testator is in effect an interpretation of the will (and a mistaken interpretation), and will be regarded as binding upon the trial court, should the question hereafter arise. As appears from the' words quoted, the actual decision was made to turn upon the fact that the surviving child had at all events an interest in the preservation of the trust until he reached his majority, in order that he might continue to receive a revenue from the fund until that time, whether or not he was entitled to any of the principal. But a further consideration of the concluding paragraph of the will makes the matter that was confidently relied upon seem quite as doubtful as the one that was referred to as a mere probability. The entire will reads as follows:
“I, A. R. Benton, do hereby make the following disposition of my property, should I never recover.
“(1) Three thousand ($8000) dollars life-insurance held in Modern Woodmen of America — to be divided as follows :
“To father and brother H. H. one thousand dollars— ($1000).
“To my son Glenn two thousand dollars ($2000) at his majority.
“Ten thousand dollars held in the New York Life disposed as follows:
“(1) Two thousand dollars to unborn child at its majority.
“(2) Eight thousand dollars to wife, all of which is to be held in trust by J. O. and H. H. Benton without *375bond — they to pay beirs such rate of interest as shall be agreed upon, until children become of age — and she remains unmarried — in such case money shall fall to my legal heirs.
“The balance of my effects and personal property— after all expenses are paid — to be divided among my heirs and representatives according to the laws of the state of Kansas.
“In case of the death of either my son Glenn during his minority or in case of the still-birth of unborn child or its birth and death before majority all payments of interest to said children or any one of them or either of them shall cease and the several sums bequeathed them shall be divided as heretofore.”
The opinion was written upon the assumption that the final paragraph meant merely that upon the death of one of the two children the payment of interest on its account should cease and its share should fall into the common fund. The language used, however, is susceptible of the further meaning that after the death of one child no payments of interest should be made to the other. The present case, therefore, can not be decided without interpreting one or the other of two clauses of the will, each of which is involved in considerable obscurity. We prefer, however, to pass upon that to which our attention was first attracted, and therefore recur to the part of the will quoted in the original opinion:
“All of which is to be held in trust by J. O. and H. H. Benton without bond — they to pay heirs such rate of interest as shall be agreed upon, until children become of age — and she remains unmarried — in such case money shall fall to my legal heirs.”
The precise question is, What did the testator mean by “in such case” ? In what case did he intend a part of the fund to be diverted from the wife to the children ? The defendant in error offers this answer:
“According to the terms of the will, $2000 of the $10,000 life-insurance held in the New York Life Insurance Company is given to the unborn child, and *376$8000 to May Benton. Her $8000, however, is to be held in trust until the children become of age and she remains unmarried. In such case the $8000 is to pass to the legal heirs. That is, if May Benton remains unmarried and the children become of age, then the money goes to the legal heirs; but it only goes to the legal heirs in the event of her remaining unmarried and the children becoming of age. When May Benton remarried that terminated the trusteeship. The remarriage made it impossible for the conditions to exist upon which the money devised to her should go to the heirs. It was given to her and her right to it could only be devested upon the occurrence of certain named conditions, and those conditions being made impossible by her remarriage, the trusteeship terminated and she was entitled to the money.”
This explanation involves the inherent improbability that Benton intended his widow to receive a larger share of his property if she remarried than otherwise, and it fails to account for the language used or to exhibit any general and consistent purpose. It puts the testator in the attitude of saying that the money was to go to his wife, but until the happening of a stated event, which was spoken of as though expected to take place, it was to be held in trust by others, and then a part of it was to be paid to some one else. There is a manifest inconsistency in his first giving the money to his wife and then providing that she shall receive it only in case of her remarriage, which he must have regarded as the exceptional rather than the normal outcome of her widowhood.
On the other hand the interpretation originally suggested attributes to the testator a natural and orderly plan — he wished his wife to have the money, but during the minority of the children it was to be held in trust, she sharing the interest with them; when they became of age, in the usual and expected course of events she was to receive the entire fund in her own right, her husband evidently relying upon her, if still unmarried, to render them such financial aid as might be suitable; *377but should she have remarried, being then presumably less dependent upon the legacy for her own support and less singly devoted to the welfare of the children, he preferred to make a definite provision for them. True, this idea was not expressed with literal accuracy. But the will shows on its face that it was hastily drawn. Its phrases are unstudied. Its introduction alludes to an illness from which recovery was doubtful. The sick' man’s thoughts were clearer than his. words. Evidently he wrote or dictated without revision. He set the $8000 apart to his wife; then he arranged for the trustees to hold it until the children were of age, implying a payment to her at that time; then he imposed the condition — provided she remained unmarried. So far all is plain. Then apparently having in mind that the phrase he had used was “and she does not remarry,” or some equivalent expression, he added “in such case”- — -that is, in case she remarries —“money shall fall to my legal heirs.” This seems the simplest available explanation, and we adopt it for the purpose' of the present case. Of course the parties may be by this time committed to some other construction, or the matter may be affected by other extraneous circumstances. But here nothing is involved but the face of the papers, and the question is-one of pleading. The result already announced will be allowed to stand for the additional reasons stated, and the petition for a rehearing is denied.