child who should die without issue, the property tate of the portion of the trust estate of to be held in trust for the children until the John H. Bradley received by her sister by

and that if either daughter married she to my surviving children and their heirs, equalshould not have the right to so occupy it with ly. In all cases the child or children of any of her husband as to exclude the unmarried my children who may die shall take his or her deceased parent's share, only. If any of my child from its use, and the husband of either above named children shall die leaving issue and of the daughters marrying should have no such issue shall die childless, then in that case control or use of the homestead property all property derived from me shall go to my other children and their heirs, such heirs to have against the will or to the prejudice of the un- only their ancestor's part in any case. Any of married daughter desiring to live in it. By my said five children, and every one of them, the sixth item he gave, devised, and be- may, as he or she pleases, by will give and bequeathed all the rest and residue of his es- other child or lineal descendant of mine or of queath his or her share of my estate to any tate to his five children (naming them) in my deceased wife, giving it only to persons of equal parts, to have and to hold to them and my or her blood. I hereby appoint my friends their heirs forever, the shares of Emmor, William N. Jackson and Francis M. Churchman aforesaid to be joint trustees for each of my Catherine, and Lydia being subject to the said children, and as such to receive and hold terms of a trust therein created by the sev- in trust all the estate of each of the said chilenth item of the will. It further provided dren given and bequeathed to them in and by or that if any child should die before the tes- under this article or clause to this codicil to my will, with full power to manage, invest and tator without leaving a child or children, put the same to profit for the benefit of my said then such child's share should be equally di- children, and with similar powers and authorvided among the surviving children, the chil-ity, jointly, as to such trust property, as I have dren of such deceased child or children to given to trustees of certain donations made by me to three of my said children, in writing, on take their parent's share, and in case any the first day of 1869, a copy of which such issue should die childless, then and in writing the said Jackson and my said children that case the property derived from him each have. And I do hereby will, order and should go to and belong to his other children direct that said trust in each case, and as to any one of said children, may be terminated or to their heirs. By the seventh item he and the share of such child and its increase paid devised his property to William N. Jackson, over to such child whenever it will be for the John B. Kitchen, and Frederick A. Ross as trustees shall be the sole judges, and have the advantage of such child, of which fact the said trustees, and directed that the trust in each power of a parent to decide, and which they case should be terminated and the share of may decide, to do so; but I desire that they do each in the trust fund and its increase be paid not do so except in a very strong, clear case of its propriety, and not in any case to enable such over to the cestui que trust as soon as and child to invest his or her money in speculation. whenever it would be proper and for the The estate or interest hereby given to each of benefit of such estate to do so, vesting the my daughters and held by said trustees in trust trustees, or a majority of them, with the and separate estate, and shall not pass to or be for them is given and intended to be her sole same power and discretion of parents to de-paid to or be in any way controlled by her huscide that matter, and in case his daughters should marry, that none of the trust should pass to or be paid to their husbands or in any way controlled by them, except by the consent of the trustees.

band except by the consent of the said trustees and such daughter, his wife; and this to apply to principal and increase both. I fully authorize said trustees to manage and use the trust funds in each case, in every respect, for the benefit of the cestui que trust and where necessary with my executors to sell any real estate and for his or her support and maintenance, and make or cause to be made the proper conveyance thereof to the purchaser, and to so manage, invest, change and re-invest any part of said funds as will be best for the interest of the child or children owning it. Where any real estate shall be sold, the proceeds thereof shall be added to and invested with the trust funds; but they and shall consult and advise with the cestui que my executors, before selling any real estate, trusts. Every act of said trustees shall be joint. by or by agreement and order of both. In case of a disagreement a majority of the cestui que trusts may decide it."

On April 22, 1870, the testator made and executed, in accordance with the laws of the state of Indiana, a certain codicil to his will, consisting of 12 items or clauses. The one material to be considered here, and over the construction of which this controversy arises, is the tenth item, which is as follows: "Tenth-I change Item Sixth' of my said will, and instead thereof I give, bequeath and devise all the rest and residue of my estate, real and personal, of every kind and description whatever, consisting of lands, houses, bonds, mortgages, notes, stocks, money, claims, debts due me and rights of any kind, not specifically given, devised or bequeathed by me to my child or children, to William N. Jackson and Francis M. Churchman as joint trustees, in trust for the sole use, ownership, benefit and behoof of my five children, Mary, Emmor, Frances, Cather ine and Lydia Ellen, in equal parts, share and share alike, they, my said children, each to have, hold and own the one-fifth part of the proceeds thereof annually, and when the fund shall be On August 12, 1872, John H. Bradley dedivided by said trustees or their successors, to have the one-fifth part of the principal thereof parted this life in the city of Indianapolis, to her or him or her or his heirs forever, but Ind., leaving him surviving no widow, but until such division and the termination of the leaving the five children above named as his trust to be subject to the trust hereby made. only heirs at law. On September 2, 1872, If any of said children shall die before I do, or afterwards, without leaving issue, such deceased his last will and testament, and the two codichild's share shall go, and is hereby bequeathed, cils thereto, were duly proven and admitted

On June 7, 1871, the testator made and executed, in accordance with the laws of the state of Indiana, a second codicil, making certain changes in his original will and also in the other codicil, none of which, however, have any important bearing on the questions now before us.

to probate in the court of common pleas of Marion county, Ind. On October 23, 1872, the five children, as beneficiaries under his will and codicils, together with the trustees of the estate created by such instruments, filed a petition in the court of common pleas of Marion county in the matter of the estate of John H. Bradley, deceased, setting forth the devises and bequests made by the last will of the testator in the premises and the clauses granting to the trustees full power and authority in the premises to terminate the trust as to any or all of the said children and their heirs and to make partition of all of the property among them; that it was the desire of all of the heirs and legatees of the testator that such division should be made, and that the trustees had decided that it would be to their advantage and best interests to make such division and partition of all the property of which the testator died seised among the parties in interest, in equal parts, and that the children and heirs of the testator and the trustees had agreed upon a division of the real and personal property among them, setting forth the division of the property to be made, and asking that full credit should be given to the executor for the respective shares of the personal estate in his hands as such executor which he had delivered to them, namely, $18,150 to each of the said heirs. The petition is signed by the trustees and each of the children of the testator, with their respective spouses. Apparently at the time of signing the petition Lydia E. Defrees was a minor, as the following appears on the petition under date of February 25, 1873:

"Since signing the foregoing instrument I have arrived at the full age of twenty-one years, and do now ratify and confirm the division of property made as per said instrument. Done with my consent. Lydia Ellen Defrees, "Morris Defrees."

It has been stipulated that the statutes and published reports of the courts of the state of Indiana are to be considered as being before the court, and that the court may determine what the law of Indiana was or is upon any proposition of law which may be material or pertinent to the issues involved in this case without the necessity of pleading and proving such laws; it being the intention of the parties that the court may construe and determine the laws of the state of Indiana, wherever material, by reference to the statutes and decisions of that state, the same as if the court were sitting as one of the courts of such state.

dren, did not change the provisions of the will or divest appellants of their interest in the estate of Catherine S. Brydon, created by such executory devise, in the event that she died leaving no child or children or descendants of a deceased child or children her surviving. Appellee contends that the will, codicils, the petition to the court of common pleas, and the rights of the parties to the property received thereunder must be construed according to the laws of Indiana; that the testator did not intend to create, and did not create, an executory devise by the tenth item of the first codicil to the will, and that the absolute title to the property vested in the children of the testator immediately upon the termination of the trust estate and its division among them pursuant to the proceedings had in the court of common pleas of Marion county, Ind.; also that if by the item in question the testator attempted to create an executory devise the same is void, for the reason that the will vested the first takers with an absolute power of disposition of the property devised to them, which is repugnant to any limitation over. It is also contended that the appellants have been guilty of laches, and that an executory devisee cannot require an accounting, but must trace the property which the first taker received subject to the executory bequest.

Fyffe, Ryner & Dale and William F. Anderson, all of Chicago (Colin C. H. Fyffe and Leo Brewer, both of Chicago, of counsel), for appellants. Charles M. Haft and John E. Foster, both of Chicago, for appellee.

CRAIG, C. J. (after stating the facts as above). [1-4] In construing wills the constant effort of the courts is to ascertain and give effect to the intention of the testator as expressed by the language of the whole will, and to give effect to the same in so far as is consistent with the established rules of law and the public policy of the state. Morrison v. Tyler, 266 Ill. 308, 107 N. E. 602; Howe v. Hodge, 152 Ill. 252, 38 N. E. 1083. This rule is as old as the law of wills itself and a necessary part of it, as any other rule would defeat the very object in permitting a disposition to be make of property by last will and testament. The intention is to be gathered from a consideration of the whole will and all of its parts, and not from the isolated sentences, clauses, or paragraphs of which it is composed. Black v. Jones, 261 Ill. 548, 106 N. E. 462, Ann. Cas. 1915D, 1173. Where it consists of an original will and one Appellants contend that the estate created or more codicils, all are to be construed to by the tenth item of the first codicil is an gether as an entirety or one instrument. 40 executory devise in favor of the descendants Cyc. 1421; Fry v. Morrison, 159 Ill. 244, 42 N. of the testator in the event of the death of E. 774; Hubbard v. Hubbard, 198 Ill. 621, 64 any of his children without issue, and that the N. E. 1038. In cases of doubt, where some of proceedings had by the heirs and trustees in the provisions of a will or codicil have been rethe court of common pleas of Marion county, voked by a later one, resort may be had to Ind., making a settlement of the trust and a the revoked provisions as an aid in gathering division of the trust estate among the chil- | the intention of the testator as expressed by

his later acts. Langdon v. Pickering, 19 Me. I erly termed an executory bequest. 40 Cyc. 214. When so construed the question here 1648; Glover v. Condell, 163 Ill. 566, 45 N. E. presented is: What was the Intention of the testator as expressed by the language used in the will in the case at bar?

When resort is had to the provisions of the original will by which the trust was created, and which are superseded by the later provisions contained in the tenth item of the first codicil, it will be seen that the only substantial difference between the provisions of the two instruments in this respect is, that by the codicil the terms of the trust are so enlarged as to include all of the children of the testator, and the words "or afterwards" were added after the words, "if any of said children shall die before I do," in that part of the will wherein provision is made for the disposition of the property in case of the death of any of the testator's children without leaving issue during the lifetime of the testator. The codicil makes no change, however, in the character of the estate given, the time of its vesting, or the time or manner of terminating the trust estate, and the making of a division of the corpus of such estate among his children.

By the tenth item of the first codicil the testator gives the residue of his estate to trustees, "in trust for the sole use, ownership, benefit and behoof" of his five children, "in equal parts, share and share alike, they, my said children, each to have, hold and own the one-fifth part of the proceeds thereof annually, and when the fund shall be divided by said trustees or their successors, to have the one-fifth part of the principal thereof to her or him or her or his heirs forever, but until such division and the termination of the trust to be subject to the trust hereby made." Had the testator stopped here there could be no question as to his intention or the character of the estate taken by each of his children. By apt and appropriate words expressing his intention as clearly as words could express it, he declares that the prop erty is to be owned by his children and become theirs or their heirs forever, subject only to the provision of the trust therein created, which may be terminated at any time, in the discretion of the trustees. After making the foregoing provision, however, the testator proceeds as follows:

"If any of said children shall die before I do, or afterwards, without leaving issue, such de ceased child's share shall go, and is hereby bequeathed, to my surviving children and their heirs, equally. In all cases the child or children of any of my children who may die shall take his or her deceased parent's share only. If any of my above named children shall die leaving issue and such issue shall die childless, then in that case all property derived from me shall go to my other children and their heirs, such heirs to have only their ancestor's part in any case."

173, 35 L. R. A. 360. The will in this case disposes of real and personal property. Whenever a will purposes to dispose of real estate and personal property in the same words and in the same connection, and it is manifest that the testator intended both to go together, it is held the will must be so construed. Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659, and cases cited.

[7] Appellants insist that by use of the above language the testator limited and qualified the estate granted so that it became a base or determinable fee, liable to be divested in the event any of the children died without leaving issue. Appellee insists that by the above language the testator only intended to provide against intestacy in the event of the death of any of his children without leaving issue, having in mind the rule that where a devisee or legatee dies during the lifetime of the testator, the devise or bequest to such child lapses and is to be distributed as intestate property. Haight v. Royce, 274 Ill. 162, 113 N. E. 71; Dorsey v. Dodson, 203 Ill. 32, 67 N. E. 395; Magnuson v. Magnuson, 197 Ill. 496, 64 N. E. 371; Schumaker v. Grammer, 200 Ill. 48, 65 N. E. 722. With the contention of appellee we do not agree. In the devising or granting clause the testator gives the estate to his children, naming them, and "to his or her heirs forever," and also provides for the contingency of any child's death after the death of the testator as well as before. This is inconsistent with an intention to provide only against intestacy in case any child's death should occur prior to that of the testator, for the reason that if a child did not die until after the death of the testator, the property devised to him or her would not descend as intestate property, but would immediately vest in such child or his or her heirs upon the death of the testator, and descend to such child's heirs in case of the death of such child after the death of the testator, in accordance with the laws of his domicile. Language was used in the sixth item of the original will similar to that used in the tenth item of the first codicil, with the exception that no provision was there made for the contingency of the death of a child after the death of the testator. In the tenth item of the first codicil this contingency is provided for by the addition of the words "or afterwards" after the words "before I die," as contained in the original will.

[8] While it is true that where the same or similar words are used in different parts of the same instrument the presumption is that the testator used them in the same sense in each instance (Madison v. Larmon, 170 Ill. [5, 6] Executory devises are applicable to 65, 48 N. E. 556, 62 Am. St. Rep. 356), this testamentary dispositions of personal prop- presumption cannot prevail where the words erty as well as real estate. In the case of are used in connection with other words not personal property the limitation is more prop-contained in the former instrument, which

explain, change, or modify the legal effect of of the termination of the trust and the divithe words as used in such former connection. sion of the trust estate. When these various By the addition of the words "or after-provisions of the will are considered and the wards," in the tenth item of his first codicil, same construed in the light of the well-setthe testator extended the provisions of that tled rules of law, we think it must be held item so as to include the death of a child or that the intention of the testator as expresschildren after his death as well as before, ed by the language of his will was not to proand thus negatived any presumption that it vide against intestacy in case of the death was his intention by the above item to pro- of any of his children without leaving issue, vide only against intestacy as to any part of but rather to control the disposition of the his estate in case of the death of any of his estate devised in case of such contingency. children without leaving issue, which would not occur in case of the death of such child after the death of the testator.