ON PETITION FOR REHEARING. In their petition for a rehearing, the appellees urge that in the consideration of this case the court failed to take into account certain rules of construction applicable to the 7, 8. interpretation of wills, which, if applied, would have led to a different conclusion. Our original opinion was written upon the theory that the will of Adam Weppler was not uncertain nor ambiguous. We held that the meaning of the clause, "should any of them (referring to the testator's children) die without issue before my wife's death," when considered in the light of the other provisions, was definite and clear. Under such circumstances, it is not proper to apply the rule that words of survivorship will be held to relate to the death of the testator rather than to the death of the first taker because this rule is merely one of construction, to be resorted to only when the terms of the will relating to that subject are uncertain and ambiguous.
"Where the intent of the testator is plain, there is no occasion for resort to such rules, because no construction is required." Alsman v. Walters (1916), 184 Ind. 565, 569, 106 N.E. 879, 880, 111 N.E. 921.
The appellees have directed our particular attention to Fowler v. Duhme (1896), 143 Ind. 248, 42 N.E. 623, *Page 38 and Aspy v. Lewis (1899), 152 Ind. 493, 52 N.E. 756. We have subjected these cases, together with the others cited, to careful scrutiny. They set out in detail the rules for construing uncertain and ambiguous wills that have been developed and enunciated by the courts through the years. These rules have been so often defined and so frequently reiterated that there can be little controversy about their meaning.
The apparent conflicts in the reported cases where wills have been construed may be better understood, if they cannot be harmonized, by taking into account the facts involved 9, 10. because, in the nature of things, the construction of a will ordinarily presents a mixed question of law and of fact. There is usually no question as to the terms of the instrument, though the meaning of the provisions may not be clear. Too often, there has been a disposition on the part of the courts to isolate a particular phrase, clause, or provision of a will and ascribe to it the same meaning that has been given to similar language in another will. Thus, in the case at bar, the appellees would have us construe the clause, "should any of them (the testator's children) die without issue before my wife's death," the same as comparable language was construed in the cases of Fowler v. Duhme and Aspy v. Lewis, supra. The dangers in adopting such a policy are so clearly set out by Professor Page in his treatise on wills that we feel justified in quoting liberally from that text:
"In determining testator's intention as expressed in his will, courts are often asked to decide the case in dispute in the same way as some previous case in which somewhat similar expressions were employed in the will there construed. In most cases courts are unwilling to construe a will in a certain manner merely because in a previous case they *Page 39 have construed a will containing similar expressions in the same manner.
"While such a method of construction is, at first glance, very tempting, it is radically at variance with what we shall see is the fundamental rule of construction, namely, that the intention of the testator is to be ascertained, and that it is to be ascertained from the language used in the entire will. An attempt, therefore, to construe the separate phrases and clauses of the will in accordance with precedents is likely to lead at once to a total disregard of testator's intention, unless it happens that in the two wills taken each as a whole testator's intention is substantially the same, and to be carried out in the same way. Such a coincidence rarely happens except in the introductory clause and attestation clause of a will.
"Wills are almost never drawn in any set form. In this respect they are strikingly different from instruments like deeds, leases, mortgages and certain types of business contracts, like insurance policies, bills of lading, etc. Instruments of each of these different classes are drawn each substantially alike. A precedent for construing a phrase in a deed, therefore, is likely to be a most valuable precedent for construing the same phrase in another deed, since the effective parts of the two instruments are likely to be almost identical.
"On the other hand, the construction of a phrase in a will is likely to give but little help in construing a similar phrase in another will, since the remaining effective parts of the two instruments are likely to be widely dissimilar. While precedents are of great weight in aiding construction, they have not the controlling force that they have in most branches of law, since a slight difference in the language which testator uses may make a great difference in his intention." Page on Wills, Vol. 1, 2nd Ed., § 807, p. 1363.
After having again considered the provisions of the will of Adam Weppler as a whole, we are still of the opinion that the intentions of the testator are clear *Page 40 and unambiguous. We are further of the opinion that when the facts presented by the cases called to our attention by the appellees are analyzed, those cases can be distinguished from the one now before us.
The petition for rehearing is denied.
NOTE. — Reported in 30 N.E.2d 549.