Inasmuch as I agree that the decree of the circuit court in this case should be affirmed but cannot agree to the construction given the will of John Crabb, I have thought there would be no impropriety in my giving brief expression to my views upon that question.
It seems to me the court has construed the will in this case contrary to the plain intention of the testator. If he intended to give his children living at the time of his death a fee simple absolute estate but in order to guard against lapses in case any of them predeceased him he made further provision by paragraph 3, no rule of law or of public policy would be violated by giving effect to the intention of the testator. The question is one of intention of the testator, and that ought not to be obscured by courts by technical refinements of arguments which are much less easily understood than the plain language of the will. As I see it, there is no occasion for "darkening counsel by words." This and all other courts and text writers agree that in construing a will the intention of the testator, when not contrary to public policy or to law, should be given effect. We have many times said that is the cardinal rule in will construction; that all other rules must yield to it; that the intention of the testator is the polar star by which courts are to be guided in construing wills; and we have often held that as an aid in determining what the testator intended by the language used in his will, courts may consider the circumstances surrounding the testator at the time he made the *Page 472 will, the condition of his property, his family, his relations with them, and the language of the will should be interpreted from the standpoint of the testator at the time he employed it. We have held the state of the law at the time the will was made may be considered, and often affords material assistance in arriving at the testator's intention when such intention might otherwise be doubtful. Carpenter v. Browning, 98 Ill. 282.
Fifer v. Allen, 228 Ill. 507, construed the will considered in that case as referring to the death of the first devisee at any time, whether before or after the death of the testator. If that was what the testator intended, — and the court held it was, from the language used in the will, — the construction given it was correct.
In Kohtz v. Eldred, 208 Ill. 60, the devise was of real and personal estate in trust for the testator's children, to be equally divided between them, share and share alike. If either of them died leaving no issue surviving, then the share of the deceased child was to go to the survivor, and if both the testator's children died leaving no issue surviving, then to go to others mentioned. The court held the devise to the first devisee was of an equitable fee, and that the estate was not cut down by the provision made in case of their death; that the death referred to meant death during the life of the testator. The court cited Jarman on Wills and decisions of courts of many States, among them Wright v. Charley, 129 Ind. 257,28 N.E. 706, from which case the court quoted the following: "It is the well settled doctrine that the courts of this country will so construe a will, when not inconsistent with the intention of the testator, as to prevent the title to real estate from remaining contingent, and, unless there are plain indications of a contrary intent, will consider the entire title as vested in those claiming under the will, rather than in abeyance. (Wills v. Wills, (Ky.) 3 S.W. Rep. 900; Heilman v. Heilman, 28 N.E. Rep. 310.) In accord with this rule it is said by Mr. Jarman *Page 473 to be an established rule that where a bequest is simply to one person and in case of his death to another, the primary devisee surviving the testator takes absolutely. This rule applies to both personal and real estate, and the authorities in this country uniformly sustain the construction that in a devise or bequest simpliciter to one person and in case of his death to another, the words refer to a death in the lifetime of the testator. (2 Jarman on Wills, 752.) This rule is fully sustained by the authorities. (Moore v. Lyons, 25 Wend. 119;Kelly v. Kelly, 61 N.Y. 47; Briggs v. Shaw, 9 Allen, 516;Whitney v. Whitney, 45 N.H. 311; Vanderzee v. Haswell, (N Y App.) 8 N.E. Rep. 247; Reams v. Spann, (S.C.)2 S.E. Rep. 412; Wills v. Wills, (Ky.) 3 S.W. Rep. 900; Hoover v.Hoover, 116 Ind. 498; 19 N.E. Rep. 468; Harris v. Carpenter,109 Ind. 540; 10 N.E. Rep. 422.) So, too, another well established rule is, that where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, coupled with a devise over in case of his death without issue, the words refer to a death without issue during the lifetime of the testator, and that the primary devisee surviving the testator takes an absolute estate in fee simple. — Clayton v. Lowe, 5 Barn. Ald. 636; Gee v. Mayor, etc. of Manchester, 17 Adol. E. (N.S.) 735; Woodburne v. Woodburne, 23 L. J. Ch. 336; Doe v.Sparrow, 13 East, 359; Quackenbos v. Kingsland, (N.Y.App.) 6 N.E. Rep. 121; Livingston v. Greene, 52 N.Y. 118;Embury v. Sheldon, 68 id. 227; Michley's Appeal, 92 Pa. St. 514; Heilman v. Heilman, 28 N.E. Rep. 310."
In Fifer v. Allen, supra, the court said it was beyond question that the will was correctly construed in Kohtz v.Eldred. In the Kohtz case the entire will is set out and the decision is based upon the construction of its language, unaided by any extraneous circumstances or context. The case ofWright v. Charley, supra, was decided by the Supreme Court of Indiana in 1891. The same court in 1896 decided *Page 474 Fowler v. Duhme, 42 N.E. 623, in which case the testator devised lands to his children, with a provision that if any of them died without lawful issue living, then the share of such deceased child should become the property of the survivor. The court held death of the child without issue meant death during the life of the testator, and cited and quoted with approvalWright v. Charley. Those cases were approved and followed by the Supreme Court of Indiana in 1924 in Quilliam v. Union TrustCo. 142 N.E. 214.
It seems to me the language of the will in this case does not justify the construction given it by the court. There can be no question that paragraph 2 of the will was sufficient to devise a fee to the testator's children, for he says they are to have his estate in fee simple absolute, in equal proportions. InBecker v. Becker, 206 Ill. 53, this court held it is the settled policy to adopt the construction of a will giving an estate of inheritance to the first devisee unless limiting or qualifying clauses show clearly and unequivocally that it was the intention of the testator to limit or qualify the estate granted. In doubtful cases the law favors that construction of a will which gives the first taker a fee simple estate, especially if he is an heir. (Bookless v. Charnoch, 307 Ill. 578; Tucker v. Tucker, 308 id. 371; Romer v. Romer, 300 id. 335; Tomlin v. Laws, 301 id. 616.) In the last case cited the court said it was a settled rule of construction of wills that when an estate is devised to one person and in case of his death to another, death refers to death during the lifetime of the testator, in the absence of other words of the will showing a different intention, — citing Carpenter v. Sangamon Loan and Trust Co. 229 Ill. 486, and Kolb v. Landes, 277 id. 440.
There is no pretense that any rule of law or of public policy would be violated if the testator intended in the will here under consideration that his children living at the time of his death should take a fee simple absolute, but if any of them predeceased him, paragraph 3 was executed to guard *Page 475 against lapses. To my mind the testator's intention as expressed by his will is not doubtful. But conceding for the sake of argument that it is, then the rule we have referred to favors the construction which gives the first takers a fee simple. There is certainly no language in the will which manifests a clear and unequivocal intention of the testator to limit the estate granted to the first takers to less than a fee simple. Furthermore, any doubt whether the language of the will referred to the death of the first taker before the death of the testator is dissipated when we consider the circumstances of the testator, his family, his property, the law of the State in which he lived, where most of his property was situated, where most of his children resided at the time the will was executed and at the time of the testator's death. The personal estate of the testator was given testator's children by the same clause giving them his real estate, which itself indicates the intention to devise a fee in testator's lands. (Hempstead v. Hempstead, 285 Ill. 448.) It was not his intention to confer one kind of an estate in his personal property and another kind in his land. Under the law of Indiana the death of the first taker referred to in the will meant death before the death of the testator, and he was presumed to know the law of the State of his residence and where most of his property was situated. No one would contend it was the intention of the testator to give his children one estate in the property in Indiana and a different estate in his property in Illinois. It cannot be disputed that he intended to give them the same estate in all of his property, wherever situated. The law of Indiana is, of course, not controlling in the construction of wills and the settlement of titles to land in this State, but it may be looked to to determine what the testator intended. If he had used language which this court had construed contrary to the construction of the same language by the Supreme Court of Indiana the decision of that court would not govern the decision in this State, but the Indiana courts, *Page 476 as well as this court and all other courts, have said the cardinal rule in the construction of wills, to which all other rules must yield, is the intention of the testator, and if it was his intention to give his children a fee simple estate in all his property, wherever situated, if they survived him, no rule of construction established by the decisions in this State would be violated. To hold that such was the intention of the testator would not violate any rule of construction in this State. In construing wills courts have no inspired powers for determining the intention of the testator but must decide what the testator meant from the language he employed, considered in connection with all the surrounding circumstances, which all courts hold are proper to consider in arriving at what the testator intended by his will.
The bill in this case alleges, and the demurrer admits, that the courts of Indiana have vested the property devised in that State, real and personal, in the children of the testator in fee simple absolute. That was done because the courts of that State held such was the intention of the testator. This court holds the language of the will clearly and unequivocally shows such was not the intention of the testator, the effect of which is that the testator intended his children should take an estate in fee simple absolute in the property in Indiana and only a qualified or determinable fee in the property in Illinois. Of course, the testator had no such intention, and this court is not obliged by any of its own decisions to hold that he had. There are no equities in this case which would, in any event, require any such a construction. Defendant stated in open court he was willing and anxious to perform the contract if complainant had a good title, and he reiterates that statement in his brief in this court.
I think complainant's title good without reference to the question of merger, and that the decree should have been affirmed upon the ground that testator's children took a fee simple title under the will. *Page 477