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Opinion of the Court.

the inhibition against control by the husband over the principal points unmistakably to the conclusion that each daughter was to have control over the principal which on decease of the husband would be absolute. We think not. The provision following is significant. It is: "nevertheless, each of my children shall have full power and authority to will and devise her portion of said inheritance in such manner as she shall see fit," a provision seemingly useless and without apparent legal effect as to either daughter in case she should survive her husband provided the will is construed as giving to the wife absolute control of the corpus on decease of her husband, since absolute title itself implies power to will. We do not overlook the expression "her portion of said inheritance," which occurs twice. At first blush it might seem like a contradiction of the idea of a life estate. But this is not necessarily so. If the phrase will bear a construction consistent with the plain import of that which precedes, then, under the rule that all parts must be given effect if practicable, we are required to give the term "her portion of said inheritance" such construction as will reconcile it with the idea of a life estate in the portion in which she has the beneficial interest. Such construction seems not unreasonable. Indeed, using the language in the popular sense, such would be her portion. It would not necessarily imply or embrace the idea of an absolute estate in the portion, but would be her portion because it is the part from which she as the beneficiary is to receive her annual income, and the part over which, by special provision of the will, she is given control to the extent of disposing of it

Opinion of the Court.

by will. With this construction all appearance of inconsistency with the idea of a life estate, as it seems to us, disappears. Then follows the third item providing that in case of either of the children dying without leaving a will, then "her portion of said inheritance" to be equally divided between her children who may survive her, and failing such children, then to be paid to the children of the testator who may survive her, i. e., the surviving daughter or daughters. That language is surely not equivocal. It is a clearly expressed remainder over, and carries the further implication that the precedent estate in the daughter was less than an absolute estate.

The apparent meaning of the entire provision is, we think, to inhibit any control whatever by the husbands, either of interest or principal, but to clothe the wives with absolute control of the interest, that is the income, and a qualified control of the principal, the corpus, viz. to dispose of the same by will, an instrument which, however, would take effect only at their decease.

It is, however, contended that this third item is repugnant to the provisions of the second item, and must, therefore, be totally disregarded. With due respect, this is begging the question. It is only upon the theory that the second item creates an absolute estate in the three daughters, modified only by the alleged marital trust, that there can be any claim of repugnancy. But it is not upon uncertain language in the first provision that repugnancy can be predicated. The intent to create an absolute estate must be beyond serious question before a subsequent item, if it clearly creates a remainder,

Opinion of the Court.

can be alleged to be repugnant. If the first item is doubtful in meaning the later item should be held to remove the doubt, not to confirm it, or be disregarded wholly. The meaning of the third item is clear beyond question. It creates a remainder, and, it has already been shown, we think, that at least there was not, by the preceding item, a clearly expressed intent to create an absolute estate.

But the proposition that this will creates a marital trust which ended with each daughter when she became discovert is subject to another answer which seems conclusive. It assumes that the marital relation, if terminated as to coverture with one husband by his decease cannot possibly be renewed by a second marriage. However improbable that event may appear as a matter of fact there surely can be no legal presumption to that effect. The term "the husband" cannot be confined in its application to the husband then living, but, in order to carry out the clear purpose of the testator, as shown by the whole will, must be held to apply to any husband. This purpose is made especially apparent by the appointment by the testator of the husband of one of the daughters as executor. That act imports great confidence in that husband and of itself affords a strong presumption that the exclusion of the then living husbands from control was not personal to them. So long, then, as the possibility of coverture remains (and why does it not remain during natural life?) it cannot be said that the trust ended as to each daughter when she became

discovert.

The real question at the bottom of the inquiry so far as the claim of repugnancy is concerned is akin

Opinion of the Court.

to that presented in Baxter v. Bowyer, 19 Ohio St., 490, and in Johnson v. Johnson, 51 Ohio St., 446. Those cases establish the rule that conflicting provisions of a will should be reconciled so as to conform to the manifest general intent, and it is only in cases where such provisions are wholly and absolutely repugnant that either should be rejected. And where, by one clause in a will, property is devised or bequeathed, by words prima facie importing an absolute estate, and by subsequent clause is given in remainder to another person, the first devisee or legatee takes only a life estate, and the limitation over is valid. Giving effect to this principle the general intent and paramount purpose of the will can be easily carried out. The principle here declared is abundantly sustained by Smith v. Bell, 6 Pet., 68, and a long line of adjudications since.

To the contention that these ladies having executed wills in favor of those entitled to the remainder in case of failure of the parents to execute the power to will, the purpose of the testator is fully accomplished and the trust should be terminated, we think a sufficient answer is found in the rule that the power to make a will is a power to be exercised freely, so that the power to execute implies a power to revoke. 1 Sugden on Powers, *262. As well stated in Wilks v. Burns, 60 Md., 64: "The word 'will' has a technical meaning, and implies an instrument executed in conformity with prescribed formalities, but subject to alteration or cancellation at the volition of the maker. It is his will because his own mind, untrammeled and free, has determined to give the

Opinion of the Court.

disposition of his property a certain designated direction. It does not take effect until his mental and physical powers have been destroyed by disuse and dissolution, and while he has a disposing mind it is under his control." By virtue of this principle of law, therefore, the contract between the plaintiffs and their children, and the provision in the wills, if there be such, that they are irrevocable, can have no effect upon the controversy here. This disposes of the claim based upon the supplemental petition. That made by the supplemental petition in error can have no firmer foundation. It is met, also, by the further answer that it is an appeal to this court to exercise original jurisdiction; to hear and determine for the first time facts touching the merits of the original cause, and that, too, because of the happening of events since the decree of the circuit court with which the trustee has had nothing whatever to do.

It is not doubted that where one has such exclusive ownership of property as to imply an unqualified power of disposition by will he can make a contract upon a valid consideration to execute a will in favor of the other contracting party, and, upon failure to so execute, his estate may be made liable, but where the authority of disposition by will is a mere power given to one having no reversionary interest, an attempted execution of the power by will made in conformity with the terms of an alleged contract, is invalid. Wilks v. Burns, supra. Nor is it doubted that although a trust may not have ceased by operation of time, and although some of its subordinate purposes may not have been accomplished, yet if the paramount purposes have all been accomplished

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