where there is no direct gift to the issue, the question being whether a limitation over upon the death of the first taker without issue can by implication allow such issue to take as purchasers. Scarcely any two wills can be found identical in terms and based upon the same facts, therefore each case really stands as the determination of the court as to the intention of the testator.73 The general rules of construction are recognized, but are applied with more or less force according to the circumstances. In some cases certain rules of construction may have been brought to the attention of the court while the same rules may have been overlooked in other cases. Practically every will is dictated under the influence of family relationship, and the courts, in construing wills, lay hold of slight circumstances to raise a gift in favor of children rather than impute to the testator the intention of leaving them unprovided for.74 Yet an absolute gift to a parent may naturally be on the assumption that if he have issue, he will provide for them.75 In every instance all the facts and the provisions of the will are to be considered, and the intention of the testator will prevail if not contrary to the established principles of law and public policy, and such intention is at least inferentially expressed. But even to avoid intestacy the court can not, by construction, make the will for the testator.76 73 Rice v. Moyer, 97 Iowa 96, 66 N. W. 94; Andrews v. Schoppe, 84 Me. 170, 24 Atl. 805. 74 Ball v. Phelan, 94 Miss. 293, 23 L. R. A. (N. S.) 895, 49 So. 956; Vanderzee V. Slingerland, 103 N. Y. 47, 54, 57 Am. Rep. 701, 8 N. E. 247. See § 867. 75 Dowling v. Dowling, L. R. 1 Ch. App. 612; Doe d. Barnfield v. Welton, 2 B. & P. 324; Boling v. Miller, 133 Ind. 602, 33 N. E. 354; Baker v. McLeod's Estate, 79 Wis. 534, 48 N. W. 657. 76 See § 965. 8970. The Same Subject: Where Devise to First Taker Is a Life Estate. A testator may make a devise to one either with or without words of limitation, followed by a proviso that if the beneficiary shall "die without issue," then the property shall be divided among other designated devisees. The question arises as to whether or not there is a remainder created by implication in the issue so that the estate to the first taker is limited to a life estate. Where a devise is made to a beneficiary for life, with a proviso that if he die without issue, or die without children, the remainder shall go to others, the general rule is that such provisions do not by implication create an estate in remainder in the issue or children. This seems to be the established rule in England," but in the United States the decisions are conflicting, some favoring the English rule,78 some denying it."9 79 1 § 971. The Same Subject: Where Devise to First Taker Is in Fee, Where a devise to the first taker is in fee, either by direct expression or because the gift is unlimited so that the language used imports that the first taker shall have the fee, and then is followed by a proviso that if the beneficiary "die without issue" the property shall be distributed to others, there is a conflict of authority as to the estate conferred. The general rule is that the first taker is not limited to a life estate, but at the least takes a qualified or conditional fee with an executory devise in favor of those who take at the termination of such qualified or conditional fee upon the happening of the condition upon which it is limited. The fact that the event upon which the estate of the first taker is to terminate is his death without issue does not give such issue a gift by implication.80 On the other hand some decisions hold that where tain person, not to be subject to sale or mortgage, but to descend to his children free and unencumbered, and in the event of his having no children then over to another, vested a life estate only in the first devisee.-In re Grim's Appeal, 1 Grant Cas. (Pa.) 209. To the same effect, see Walker v. Milligan, 45 Pa. St. 178. Personalty. Where "personalty" is given to a daughter for life and on her death to her children, and if she should die unmarried and without lawful issue then over to her surviving brothers and sisters, the gift over becomes effective should the daughter not marry or not leave lawful issue surviving at the time of her death. -Piersoll v. Roop, 56 N. J. Eq. 739, 40 Atl. 124. A bequest of "personal" estate to a devisee for life with remainder to his children and descendants, and if he die without issue, remainder over to others named, vests a life estate in the devisee, and if he die childless, his widow and next of kin can not share in its distribution.-Tingley v. Harris, 20 R. I. 517, 40 Atl. 346. so Smith v. Kimbell, 153 Ill. 368, 38 N. E. 1029; Fifer v. Allen, 228 Ill. 507, 81 N. E. 1105; Halsey v. Gee, 79 Miss. 193, 30 So. 604; Ball v. Phelan, 94 Miss. 293, 23 L. R. A. (N. S.) 895, 49 So. 956; In re New York L. & W. Ry. Co., 105 N. Y. 89, 59 Am. Rep. 478, 11 N. E. 492; the will provides that in case a devisee shall "die without issue" and then makes another disposition of the same property, such a provision indicates an intention on the part of the testator that the first taker shall have only a life estate.8 81 § 972. Apparent Devise of Fee Limited by Additional Provisions to a Life Estate. The general rule may be said to be that where an estate is given to A in language which would convey a fee simple, but is followed by a provision that at his death the property shall vest in another, the estate to A will be construed to be a life estate only.82 An apparent devise of the fee may be restricted by subsequent words and thus limited to a life estate. Thus where the devise to the first taker is uncertain, a gift over or a limitation upon the gift may have the effect of restricting the estate to one for life only.83 Piatt v. Sinton, 37 Ohio St. 353; See, also, § 867. Contra: Anderson v. Messinger, 146 Fed. 929, 7 L. R. A. (N. S.) 1094, 77 C. C. A. 179; Wetter v. United Hydraulic Cotton Press Co., 75 Ga. 540; Close v. Farmers' Loan & Trust Co., 195 N. Y. 92, 87 N. E. 1005; Shaw v. Hoard, 18 Ohio St. 227. As to creation of estates tail by implication upon first taker "dying without issue," see §§ 948-951. 81 Johnson v. Johnson, 98 III. 564; Nowland v. Welch, 88 Md. 48, 40 Atl. 875; Simonds v. Simonds, 112 Mass. 157; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786; Kendall v. Kendall, 36 N. J. Eq. 91; Eagle Fire Ins. Co. v. Cammet, 2 Edw. Ch. (N. Y.) 127; Crandell v. Barker, 8 N. D. 263, 78 N. W. 347; Noble's Estate, 182 Pa. St. 188, 37 Atl. 852; Robert v. Ellis, 59 S. C. 137, 37 S. E. 250; Doty v. Chaplin, 54 Vt. 361. 82 Hill v. Gianelli, 221 Ill. 286, 112 Am. St. Rep. 182, 77 N. E. 458; McClintock v. Meehan, 273 Ill. 434, 113 N. E. 43. 83 Healy v. Eastlake, 152 III. 424, 39 N. E. 260; Gruenewald v. Neu, 215 Ill. 132, 74 N. E. 101; Fenster The authorities, however, are not harmonious. It is hardly worth while to review and point out the differences between the words used in those devises which were held to pass an estate in fee simple, and the words used in devises held to pass only a life estate to the first devisee, with remainder over. While the cases are not entirely consistent, they may possibly be reconciled by careful attention to the language employed in the particular will construed. "It has been well said that it is extremely difficult to construe one will by the light of the decisions upon other wills framed in different language. Unless the words used are very similar they are more likely to mislead than to assist in coming to a correct conclusion."'84 As a general proposition when the estate given to the first devisee has been regarded as a fee simple, it will be found either that it was given unqualifiedly and by proper technical words to the first taker as an estate in fee simple, and in a later part of the will there was an attempt to cut down the fee to a life estate and limit a maker v. Holman, 158 Ind. 71, 62 N. E. 699; Rice v. Moyer, 97 Iowa 96, 66 N. W. 94; Loeb v. Struck, 19 Ky. L. 935, 42 S. W. 401; Hatch v. Caine, 86 Me. 282, 29 Atl. 1076; Kent v. Morrison, 153 Mass. 137, 25 Am. St. Rep. 616, 10 L. R. A. 756, 26 N. E. 427; Estate of Mallary, 127 Mich. 119, 86 N. W. 541, 89 N. W. 348; Pratt v. Saline Valley Ry. Co., 130 Mo. App. 175, 108 S. W. 1099; Langley v. Tilton, 67 N. H. 88, 36 Atl. 610; Matter of Talmage, 32 App. Div. 10, 52 N. Y. Supp. 710; affirmed in 160 N. Y. 704, 57 N. E. 1125; Noble's Estate, 182 Pa. St. 188, 37 Atl. 852; Young v. Mutual Life Ins. Co., 101 Tenn. 311, 47 S. W. 428; Sprinkle v. Leslie, 36 Tex. Civ. App. 356, 81 S. W. 1018; In re Keniston, 73 Vt. 75, 50 Atl. 558; In re Stuart, 115 Wis. 294, 91 N. W. 688. Where land was devised in general terms without words of limitation, and in another part of the will the testator referred thereto as having been given for life, it was decided that only an estate for life was conferred.-Fearing v. Swift, 97 Mass. 413. 84 Andrews v. Schoppe, 84 Me. 170, 24 Atl. 805, quoted in Rice v. Moyer, 97 Iowa 96, 66 N. W. 94. |