| Kan. | Jan 15, 1886
The opinion of the court was delivered by
The evident purpose of this action is • to obtain a construction of the will made by William McKinney on September 24,1867, and under which all the parties to the action claim. The case turns upon the single question whether by the terms of the will Nancy McKinney, the widow, took an estate in fee simple, or only a life estate, in the lands in controversy. The plaintiffs claim that upon the death of William McKinney his widow became the absolute owner of the lands, and that when she died intestate the lands descended to the plaintiffs and defendants under the law of descents and distributions of this state. On the part of the defendants it is contended that the will gave to the widow only a life estate, and that upon her death the lands, under the terms of the will, became the property of the defendants, who were minors when the will was made and when William McKinney died. After making certain specific bequests, the testator provides that—
“All the residue of my real and personal property, after the payment of my debts, and the payment of the amounts herein bequeathed to my said heirs, I give and bequeath to my beloved wife Nancy, for her sole use and benefit, and for the rearing, nurture and education of my minor children, to wit, David Russell, Archibald, and Susan; and it is my wish,*518 desire and bequest, that at her death all that remains of my said real and personal property, and its rents, issues, and increase, shall fall to and be owned by my said! heirs David Bussell, Archibald, and Susan, to be divided between them, and if possible by them share and share alike.”
The words used in the first part of this provision, taken by themselves, and without qualification or limitation, would certainly give to the widow an estate in fee simple; but we are not to determine the legal effect of the will from any detached portion thereof, nor from any single phrase which it may contain. All parts of it should be considered and construed together, and if possible it should be construed in such a way as to arrive at the intention of the testator. The leading consideration in determining its effect is, what disposition did the testator intend to make of his property; and this intention is to be learned from an examination of the entire context of the instrument. It has been said that “the construction of a will depends upon the intention of the testator, to be ascertained from a full view of everything contained within the four corners of the instrument.” (1 Redfield on Wills, 434; Hoxie v. Hoxie, 7 Paige Ch., 187" court="None" date_filed="1838-05-01" href="https://app.midpage.ai/document/hoxie-v-hoxie-5548361?utm_source=webapp" opinion_id="5548361">7 Paige, 187.) The supreme court of Ohio has well expressed the rule applicable in this determination, where it is said:
“The question thus made, like all others arising upon the construction of a will, is one of intention on the part of the testator, and this intention is to be gathered not necessarily alone from the phraseology of a particular clause to be construed, but from the whole will, including codicils, if any, and all these viewed in the light cast upon them by the relations and circumstances of the testator of the estate, and of the objects of his bounty. Such intention, when ascertained, if not in contravention of law and public policy, is to govern, and in searching for such intention, courts ought not to permit themselves to be enslaved by mere technical rules of construction.” (Starling’s Executors v. Price, 16 Ohio St. 31.)
It will be observed that to the words which the plaintiffs claim gave the property absolutely to the widow, limitations are added. Coupled directly with those words and included in the same expression, there is restrictive language by which
“And it is my wish, desire and bequest, that at her death all that remains of my said real and personal property, and its rents, issues, and increase, shall fall to and be owned by my said heirs David Russell, Archibald, and Susan, to be divided between them, and if possible by them share and share alke.”
It is argued that the second clause of the limitation contains only precatory words which cannot operate to reduce the estate taken by the widow to less than the fee. In support of this claim, Campbell v. Beaumont, 94 N. Y. 464, is cited and relied on. In that case the testator gave his property absolutely to his wife, and added the following language:
“To be enjoyed by her for her sole use and benefit, and in case of her decease, the same, or such portion as may remain thereof, it is my will and desire shall be received and enjoyed by her son Charles.”
And the court held that the widow took an absolute title, unaffected by the provision as to her son. This case is easily distinguished from the one before us. In that case, as the court stated, there were no words of qualification, and the language employed in the provision regarding the son were mere words of recommendation which could not operate to convey any estate to the son; while in the present case the words used with reference to the minor children are not alone advisory, but are sufficient to constitute a devise to them. In
It is further claimed in behalf of the defendants, that the subsequent clause is a limitation over to the minor children which is repugnant to the estate already granted to the wife, and must therefore be held void; and many authorities are cited in support of the claim. The principle established by these authorities is applicable in a case where the pi’operty is actually devised in fee simple with an absolute power of disposal in the first taker. It cannot be applied in a case like the one before us, where, as we think, the testator has so qualified and restricted the bequest as to convey a life estate only. It may be remarked here that no words of inheritance or perpetuity are found in the bequest to the wife. Although such words are not essentially necessary to convey an estate in fee, yet their absence, when considered in connection with the qualified bequest to the wife, is important. The other provisions of the will are, in our opinion, incompatible with an absolute power of disposal in the wife. •
The earlier provisions of the instrument shed some light with regard to the intention of the testator, and tend to strengthen the view which we have taken. Mention is made of every member of his family, showing that none of the plaintiffs were overlooked, and all of them, as the will shows, received a portion of his bounty. In the first item he states that—
“Having provided and given equally, as I intended and believed, to the male children born unto me, to wit, Wilday McKinney and Nicholas McKinney, now of age, such portion of my estate as I deemed just and proper, and to the female children born unto me, in the same manner equally provided and given to them, to wit, Polly Jane Reid, Julia A. Moore,*521 Marion Breeze, and Sally Ann Hindman, I give and bequeath to each of my said children the sum of one dollar additional, and to the heirs of Sally Ann Hindman, to wit, Freddy Hindman and Nora Hindman, the sum of fifty dollars each.”
By this language it is manifest that the testator had already provided for all of his children other than the minors. He had given them such portion of his estate as in his judgment was just and proper. It appears, too, that no discrimination was made with respect to the elder children, as he gave equally of his estate to them. Now provision must be made for the remaining children, who had not yet received any portion of his estate, and evidently he intended to treat them with equal fairness and justice. He first provided that the residue of the estate, after the payment of the debts and certain specific gift% shall be used for the support of the wife during her declining years, and the maintenance and education of the three children during their minority; and next provided that out of the remainder of the estate the younger children shall receive their portion of his bounty, as the elder ones had already done.
Eeading all parts of the will together, and giving effect to all its provisions as we should, where it can be done, and guided by the light derived from the relations and circumstances of the testator of the estate and the objects of his bounty, we conclude that only a life estate was given to the wife. The interpretation which we have adopted is warranted by the rules of law, and is, in our judgment, according to the true intention of the testator. As having some application to the case, we cite Smith v. Bell, 6 Pet. 68" court="SCOTUS" date_filed="1832-02-18" href="https://app.midpage.ai/document/smith-t-v-bell-85765?utm_source=webapp" opinion_id="85765">6 Pet. 68; Terry v. Wiggins, 47 N.Y. 512" court="NY" date_filed="1872-02-20" href="https://app.midpage.ai/document/terry-v--wiggins-3593434?utm_source=webapp" opinion_id="3593434">47 N. Y. 512; Smith v. Meiser, 51 Ind. 419" court="Ind." date_filed="1875-11-15" href="https://app.midpage.ai/document/smith-v-meiser-7040933?utm_source=webapp" opinion_id="7040933">51 Ind. 419; Trustees, etc., v. Kellogg, 16 N.Y. 83" court="NY" date_filed="1857-09-05" href="https://app.midpage.ai/document/trustees-of-the-theological-seminary-of-auburn-v--kellogg-3616319?utm_source=webapp" opinion_id="3616319">16 N.Y. 83.
The judgment of the district court will be affirmed.