| Ill. | May 12, 1882
delivered the opinion of the Court:
The question presented is simply one of the construction of the will,—whether, as appellants claim, all the children of the testator, the older as well as the younger set, are to share equally in the land described in the will, or whether, as appellees claim, the widow and the five younger children take the land in fee and in equal parts among them to the exclusion altogether of the four older children.
Looking at the first clause of the will by itself, the widow and five youngest children take the whole land absolutely, and taking the- first and second clauses by themselves, the more natural construction would be the same, that the widow and five youngest children take the land absolutely, and as to the personal estate, that that was given to them only during the natural life of the widow, and until the minor heirs became of age. But this looking at, and resting upon, some particular clause or clauses of an instrument is not the right mode of construing it,—it must be looked to in all its parts, and the entire will be considered together, in order to ascertain what is its meaning. Now, when we come to look at the last clause of this will, we see that when the youngest child becomes of age, the property, both real and personal, is to be divided amongst the testator’s children, share and share alike. It is the property, both real and personal, which is to be thus divided,—that is, the property before mentioned and devised. As this farm devised was all the real property the testator had at the making of the will and his death, as the demurrer admits, it was this farm,—the real property he had been speaking of and had devised to his wife and five youngest children,—which, no doubt, the testator had in mind when he said, the property, both real and personal, should be divided amongst his children. And he said it should be divided amongst his children,—not amongst his five youngest children.
Appellees’ construction disregards this third clause, and denies to it any force and effect, but the will is to be so construed, if possible, as to allow effect to every part. It is the intention of the testator derived from the whole will which must govern. Beading, then, these three clauses of the will together, we find that it was the intention of the testator that this farm which he devised should be divided among all his children, share and share alike, when the youngest child came of age; that the devise of the farm to the widow and five youngest children mentioned in the first clause was not a devise to them absolutely, but a qualified devise to them until the youngest child should come of age; that there was the same limitation of the devise of the real estate that there was of the personal estate; that in the second clause, “all the rest, residue and remainder of my personal estate also to my beloved wife and the five above named heirs,—that is to say, to my wife during her natural life, and to the minor heirs-until they become of lawful age to account for themselves, ”—the limitation therein following the words “that is to say, ” is not confined to the personal property, as would seem the more natural construction from the reading of this clause alone, but that it applies to the real estate as well as to the personal property. Such we believe to be the true construction in view of the last clause,—the one which effectuates the intention of the testator as there manifested,—and which the application of the well known rules of construction requires to be made. It is necessary in order to give effect to the last clause, and it gives effect to all the clauses of the will.
In Rountree v. Talbot, 89 Ill. 249, this court said: “The great and leading principle in the construction of wills is, that the intention of the testator, if not inconsistent with the rules of law, shall govern, and this intention is to be ascertained from the whole will taken together. . Courts will, if possible, adopt such construction as will uphold all the provisions of the will.” So in Brownfield v. Wilson, 78 Ill. 467" date_filed="1875-09-15" court="Ill." case_name="Brownfield v. Wilson">78 Ill. 467, it was said: “It is one of the familiar rules of construction, whether of a will or other instrument, that in cases of doubt all its parts should be considered together, and, if possible, to give every clause and provision effect according to the intention of the maker. When ascertained, the intention of the testator must be enforced. ” And further: “The question, however, is, the entire instrument considered, what did the testator intend by the will?” And see City of Peoria v. Darst, 101 Ill. 609" date_filed="1882-01-18" court="Ill." case_name="City of Peoria v. Darst">101 Ill. 609.
We find that by this will he intended this farm should be divided amongst all his children, share and share alike, when the youngest of them came of age.
In case of this being found to be the true construction of the will, the question is suggested whether any division of the property can now be had. This question is raised upon the showing of the bill that one of the five younger children has deceased, leaving'an only child and heir, which is still a minor, and by the terms of the will the property is to be divided “at the time of the youngest heir becoming of lawful age. ” We have no doubt that by the term “heir” the testator meant child, and as the bill avers the youngest child had become of lawful age, we see no obstacle in the way of a present partition.
The decree of the circuit court is reversed, and the cause remanded for further proceedings in conformity with this opinion. 7
7 Decree reversed.