
    Benjamin T. Davis et al. v. Jane T. Boggs et al.
    
    1. A repugnancy -which, will justify the rejection of a word or clause from a will must arise upon the face of the will itself, and cannot be created or supplied by extraneous proof.
    2. Such a repugnancy, however, need not necessarily arise between the-word or clause to be rejected and some other distinct word or clause, but may consist in the fact that the word or clause to be rejected is in conflict with the general tenor and scope of the will, including as well its implications and omissions as its positive provisions.
    3. A testator bequeathed to his wife (who was his only heir-at-law, and whom he appointed as one of his two executors) “ in trust only, and during her natural life only,” the rents of certain real estate, the dividends on his bank stock, and the interest on debts due him, “ as long as she ” might ‘1 live ; ” with a proviso that the bank stock and debts should not be diminished, but without any such proviso as to the rents, dividends, or interest. He then directed, that- after the death of his wife “ all his estate, real, personal, and mixed” (except certain named tracts of land which had been specifically devised), should be equally divided between the children of his nephew, but that no such division should be made till the youngest child became of age. The will did not otherwise appoint or name any beneficiary of the trust fund, or give any directions as to its management by the wife, or make any provision for its management after her death, in case she should die before the majority of the youngest child. The will provided that, in case of the death, resignation, or refusal of either of the executors, the other should act as sole ex ecutor. Held — that the words ‘ in trust only,” in their ordinary technical sense, are repugnant to the general scope and tenor -of the will, and are without legal effect in its construction, and that the wife took an absolute property in the rents, dividends, and interest so bequeathed to her.
    Appeal. Reserved in the district court of Muskingum county.
    James Taylor died on tbe 20th. of March, 1843, testate, and without children, leaving a widow, who was his only heir-at-law. By the first three clauses of his will, dated January 1st, 1842, he devised his “ home-farm ” to his wife in fee, and devised in fee three other tracts of land, namely, his “ spring lot” to Sidney McMeehan, and his “ upper place ” and the “ Ryan farm ” to his nephew Grundo Taylor. The remaining clauses of the will are as follows:
    
      “Fourth. I give unto my beloved wife, Jane Taylor, in trust only, and during her natural life only, the rents of all my other lands and tenements, and interest arising from all debts due me, and the interest or dividends of all the bank stock I may die possessed of, as long as she may live. Provided, however, that such debts or bank stock is not to be diminished in the amount of principal or stock.
    
      “ Fifth. My entire bank stock I direct to remain in those banks where it now is, unless those banks, or either of them, shall cease to exist, and in that event I direct that the whole, amount thus in disuse to be vested in bank stock in the bank of Marietta, if said institution be sound, and the stock can be had at a fair value; or in some other sound banking institution, at the discretion of my executors, to remain for a period hereinafter provided.
    “ Sixth. After the death of my beloved wife, Jane Taylor,. I direct that all my estate, real, personal, and mixed, except my home-farm, my spring lot, my upper place, and the Ryan farm, as above provided, be divided, share and share alike,, between the lawful children of my nephew, Grundo Taylor provided, however, no such division be made until the youngest child of my said nephew, Grundo Taylor, shall have arrived at the age of twenty-one years.
    
      “ Seventh. I hereby appoint my friend, Doctor Isaac Spangler, of Zanesville, and my beloved wife,’ Jane Taylor, the executors of this my last will and testament, with full power to carry every part thereof into full effect; and should either die before the provisions are all carried out, or either refuse to serve, then I appoint and constitute the other my exclusive executor, with all the power delegated to both.”
    The widow duly accepted the provisions thus made for her in the will, but declined to act as executrix, and thereupon said Spangler elected to act as sole executor, and was qualified as such, but he afterwards resigned,.and the widow was. appointed administratrix de bonis non, and administered the. estate. The estate consisted of some fourteen thousand dollars in bank stock, over two thousand dollars in debts due the testator, and a small amount of personal property, besides several parcels of real estate in addition to those specifically devised as aforesaid'.
    The youngest child of Grundo Taylor became of age in 1861, and the widow died in 1865. During her lifetime she received the rents, dividends, and interest mentioned in the fourth clause of the will, and appropriated the same to her own use, claiming them to be her absolute property; and the present case is a petition filed by the children of Grundo Taylor, and the representatives of some of them who are deceased, against the executors of the widow, to obtain a construction of the will, to have these rents, dividends, and interest declared a trust fund, and the defendants as such executors compelled to account for the same.
    On hearing in the common pleas the petition was dismissed, and the cause having been thence taken to the district court by appeal, it was there reserved for decision in this court.
    Depositions taken in the cause show, among other things,, that the widow of the testator, from want of education, and of experience in such matters, was quite unqualified to manage and administer a trust fund of the nature of that claimed to have been created by the fourth clause of the will. These depositions, and an agreed statement which is made part of the case, also show other facts relating to the condition and history of the parties, and the nature aud value of the estate; but it is unnecessary to set them forth, as in the view of the cause taken by the court they become immaterial.
    
      Lucius P. Marsh, for plaintiffs:
    The petition is filed to obtain a construction of the fourth, fifth, and sixth clauses of the will of James Taylor, deceased.
    The plaintiffs claimed that what is devised in the fourth clause the devisee took in trust only; that the beneficiaries of the trust not being named as such, i.e. the trust not being declared, the devised income, etc., passed to the residuary devisees named in the sixth clause, who are the plaintiffs.
    
      The operative words of the fourth clause create in the de-visee a definite and determinate estate, declared by the testator to be “ in trust only? These words are certain, clear and unequivocal; they create an estate as determinate in law and as certain as do the words “ in fee-simple.”
    I. "We may not by extrinsic evidence, or by considering matters not appearing upon the face of the will, defeat this trust estate, and vest in the devisee an estate in. her own right.
    “ The judgment of a court in expounding a will should be simply declaratory of what is in the instrument.” Collins et al. v. Hope et al., 20 Ohio, 500.
    
      “ An ambiguity, appearing within the four corners of an instrument, must be removed, if at all, by construction; but never by averment or evidence of extrinsic facts.” Bac. Max, reg. 23.
    “ Evidence cannot be heard to show a different intention in the testator from that which the will discloses.” Allen's Ex’rs v. Allen, 18 How. (U. S.) 385; Doe ex dem. Sams v. Garlick, 14 Mecs. & W. 698; Doe ex dem. Blackstone v. Hazelwood, 70 Eng. Com. Law R. 554; Jackson v. Sill, 11 Johns. 202; Worman v. Teagarden, 2 Ohio St. 382; King v. Ackerman, 2 Black, U. S. 405.
    Extrinsic considerations being excluded, it follows we must look to the will alone to determine whether the trust estate is defeated.
    II. A failure to declare the trust — to name the beneficiaries— will not defeat the trnst, or vest in the devisee the bener ficial interest.
    
      “ There is no equitable principle more firmly established than that, where a voluntary disposition of property, by will or deed, is made to a person as trustee, and a trust is not declared at all, Or is ineffectually declared, or does not extend to the whole interest given to the trustee, or it fails, either in whole or in part, by lapse or otherwise, the interest so undisposed of will be held by the trustee, not for his own benefit, but as a resulting trust for the donor himself, or for his heir-at-law, or next of kin, according to the nature of the estate.”
    
      
      “ In all these cases, all that the court requires for the purpose of establishing the resulting trust, is a plain declaration on the-face of the instrument, that the person to whom the property is given is to take in trust.”
    
      “ Where the gift is expressly ‘ in trust] or the donees are-mentioned in the instrument as ‘ trustees] the point is clear against them; so clear, indeed, that parol evidence would be-inadmissible in support of their claim to the beneficial interest.”
    Hill on Trustees (*p. 114); Ib. (*66); Morris v. Bishop of Durham, 10 Ves. 537; 2 Wms. Ex’rs, 904; 1 Jarm. Pow. Dev. 506.
    What, then, in the context of this will would overcome this trust estate ?
    III. Where the language of a devise clearly and unequivocally creates in the devisee a definite and determinate estate, and the terms used,proprio vigore, exclude every other estate-in such devisee, to authorize such estate to be supplanted by construction, there must be created elsewhere in the will an equally determinate estate in the same subject of the devise, by the use of equally unequivocal language.
    I am not contending that there should be express words of' rebuttal to overcome the estate created by the words “ in trust only,” but I am contending that whatever is relied upon for such purpose shall at least be equally certain, and create an equally determinate estate.
    “ I hold it to be a rule that admits of no exception, in the construction of written instruments, that where one interest is given, where one estate is conveyed, where one benefit is bestowed in one part of the instrument, by terms clear, unambiguous, liable to no doubt, clouded by no obscurity, by terms upon which, if they stood alone, no man breathing, be-he lawyer, or be he layman, could entertain a doubt — in order to reverse that opinion, to which the terms would, of themselves and standing alone, have led, it is not sufficient that you should raise a mist; it is not sufficient that you should create a doubt; it is not sufficient that you should! show a possibility; it is not even sufficient that you should deal in probabilities; bnt you must show something in another part of that instrument, which is as decisive the one-way as the other terms are decisive the other way; and that the interest first given cannot be taken away either by taciturn or by dubium or by possibile, or even by probabile,. but that it must be taken away, and can only be taken away by expressum et certumP Thornhill et al. v. Hull, 2 Clark & Finn. 22 (House of Lords Cases). This case is cited and approved in Parker v. Parker, 13 Ohio St. 95, and is there' followed in construing a will, where the context more certainly overcomes a previously devised estate, than can possibly be claimed for the context in this will.
    LV. The operative words “ in trust only ” may not be rejected in construing the will, if the will can be construed and retain the words.
    “Every string ought to give its sound.” Blamford v. Blamford, 3 Buils. 103.
    “ To authorize the rejection of words in a will, there must be an absolute impossibility of construing the will, those-words being retained. The mere improbability that a testator could have meant what he has expressed, neither amounts' to a cause for rejection, nor renders the devise void for uncertainty.”* Chambers v. Brailsford, 2 Mer. 25.
    Y. The will may not be so construed as to give to Jane-Taylor the beneficial interest in the thing devised.
    When the testator says, “ I give in trust only¡\ he says two-things, — the one as certainly as the other: that he gives in trust, and that he does not give to her the beneficial interest.
    YI. If the context of this will creates a doubt as to-whether the testator did not intend to vest in the devisee the-beneficial interest, I have to say: The only province of a court in construing a will, is to determine what the will is not what the testator intended to do, but what has he done; while it is the intention of the testator which is sought, this-must be understood as his expressed intention, as distinguished from any intention which he may have had, and which he has not expressed; and if we find, two inconsistent intentions, the one which is declared may not be made to give •way to one which is only a matter of vnferenee.
    
    YII. A court will be astute to find a meaning for that which is less certain, to make it harmonize with what is certain ; and “ where an instrument is open to two constructions, and one will give effect to the whole, and the other will destroy a part, the former must always be adopted.” Pruden v. Pruden, 14 Ohio St. 251. And see Parker v. Parker, supra.
    
    This will and all its provisions can stand with my construction; but with the construction contended for by the defence, the trust estate must be destroyed.
    
      We may not hunt for reasons in the context to defeat a declared intention; the testator had a right to make her a trustee for life only, to put the corpus in the hands of his executors and the income arising therefrom in trust in the hands of his wife; to postpone the enjoyment by the residuary legatees . as he pleased, and, generally, to do just what we claim. We have no right to inquire why he has done so; he had the right to do so, and to carry his reasons into the grave with him, and we have no right to dig them up. We can only inquire, What has he done ? We have no right to force the will to harmonize with a view that we can find reasons for.
    
    VIII. Where a trust is created and is not declared, — the beneficiaries are not named, — and such trust is of personalty, a general bequest of the residuum, such as is here, will carry the trust estate.
    Judge Redfield, in speaking of a residuary bequest as to personal property, says: “It seems to be settled,” that it “ carries not only everything not attempted to be disposed of, but everything which turns out not to have been effectually disposed of, as void legacies, and lapsed legacies. A presumption arises in favor of a residuary legatee, as to personalty, against every other person except the particular legatee. The testator is supposed to give it away from the residuary legatee, only for the sake of the particular legatee.” 2 Red field on Wills, 442, 445.
    In Hill on Trustees, (*136), is this language of the author: “It follows, therefore, that where the subject of the disposition that fails is personal estate [the trust fund in this case]'' a resulting trust will arise for the next of kin, in those cases only where there is no general residuary gift, or where it is • the whole or part of the residuary gift itself that fails.”
    2 Story’s Eq. Jur. sec. 1065 d; 2 Roper on Legacies, 453; 2 Williams on Executors, (*1313), and 1 Redfield on Wills, 705.
    
      A. G. Thurman and Hunter & Daugherty, for defendants:
    I. The widow, Jane Taylor, was beneficially entitled to>the rents, interest and dividends mentioned in the fourth' clause of Capt. James Taylor’s will, and was not a trustee for any other person or persons.
    The court, in construing the words “in trust only,” will not confine themselves to those words, but will look at the context of the will, the circumstances, as to family, property, etc., under which it was made, the qualifications of Mrs. Taylor to execute such a trust as is claimed by the plaintiffs, and the effect of this or that interpretation of the will.
    The strongest expressions of trust have been rebutted by a consideration of the context and such circumstances.
    See Hill on Trustees, 84, note 1, 85, 158, 159, 160, 167, 168; Meredith v. Heneage, 1 Sim. 555; Wood v. Cox, 1 Keen, 317; 2 M. & Or. 692; 3 Ohio, 157, 166; 9 Ohio, 73, 75 ; 17 Ohio, 256, 260; 18 Ohio, 247, 265; 6 Ohio St. 563, 578; Hildebrand v. Fogle, 20 Ohio, 147; Thompson v. Thompson, 4 Ohio St. 351; Worman v. Teagarden, 2 Ohio St. 382; Gholson & Oakey’s Dig. 580, 581, 582; G. & P. R. R. Go v. Kelley et al., 5 Ohio St. 190; Pruden v. Pruden, 14 Ohio St. 254.
    “ Extrinsic parol evidence is always admissible to give effect to a written instrument by applying it to its proper subject matter, by proving the circumstances under which it was made, thereby enabling the court to put themselves in the-place of the parties, with all the information possessed by them, the better to understand the terms employed in, the contract, and to arrive at the intention of theparties.” Hilde brand v. Fogle, 20 Ohio, 142, Syl. sec. 2.
    
      It is also to be observed that tbe context is not extrinsic -evidence, nor is a consideration of the effects of an instrument, upon this or that interpretation, extrinsic. These are -daily considered by courts, not only in construing private instruments, but also public laws. Thus, if a statute literally construed would be unconstitutional, it will not be so construed, but, if possible, some other interpretation will be given to it, though inconsistent with its strict letter. And so if an instrument may have two interpretations, — one making it illegal, the other legal — or, one making it unreasonable, the other reasonable — that interpretation will be adopted that -makes it legal and reasonable. Hence the old maxim, “ ZTf res magis valeat quam pereat, etc?
    
    The construction contended for by the plaintiffs is inadmissible for the following, among other reasons :
    1. Because it makes the very fourth clause, upon which •they rely, wholly unnecessary.
    2. It is inconsistent with the context of the will.
    3. It requires an accumulating fund, when there is not one •word in the will providing for any such thing, in respect to the rents, issues, and profits embraced by the fourth clause.
    4. It ignores the negative pregnant contained in the provi-sion that the capital shall not be diminished.
    5. And the further negative pregnant arising upon the provision that the residuary legatees were not to take until the •death of the widow, though that event might not happen until long after they became of age.
    6. It would make the will provide for a trust ruinous to whomsoever should undertake it.
    
      1. And devolve this trust upon an aged female, wholly incapable of executing it, and continue it to the last moment of >her life.
    8. And devolve it upon her without requiring any security, instead of leaving the fund in the hands of the executors, who were bound to give security; or, devolving it upon some competent person and requiring him to give security.
    9. And it would make the will provide for an accumulat¡dng fund, without any provisions as to investment, reinvestment, or account — and this in the face of the fact that where the testator intended investment, reinvestment, etc., he gives .the most explicit directions.
    10. And it ignores the distinction that seems to have been in the testator’s mind between the capital or corpus of his estate, .the residuum of which is to go to the plaintiffs, under the sixth clause, and the profits, etc., mentioned in the fourth clause, and as to which there is no express bequest, except, to the widow.
    Considerations much less cogent than these have rebutted plainer words of trust than those on which the plaintiffs rely.
    In view of the whole will, the words “ in trust only ” may be rejected.
    11. But it is not • necessary to reject them. The word “trust” may be construed to mean and create an “use,” which applied to this case would make the fourth clause a bequest for the use or benefit of the widow. 8 Peters, 326.
    III. If the widow was a trustee for some other person or persons, the beneficiaries of the trust are the next of kin of Capt. Taylor, and not the plaintiffs, who are not next of kin. Morris v. Bishop of Durham, 9 Ves. 399; 10 Ves. 522, 535; Paige v. Archbishop of Canterbury, 14 Ves. 369; Gibbs v. Rumsey, 2 Ves. & Beam, 298; King v. Mitchell et al., 8 Peters, 326; Gardner et al. v. Gardner's Ex'rs, 13 Ohio St. 426; Hill on Trustees (notes by Wharton), marg. pp. 114 to 134, top pp. 157 to 185.
   Welch, J.

Two questions are involved in the construction of this will: 1st. Does its fourth clause create a trust ? 2d. If it does, who are the beneficiaries ? Although both questions arise upon the face of the will, and have been elaborately argued before us, yet if the first question be answered negatively, the second one falls outside the case, and need not be considered. We naturally, therefore, inquire, first, is there a trust? Does the wife take the rents, dividends and interest, mentioned in the fourth clause of the will, as a beneficial and absolute estate; or does she take them in trust, no matter now, whether that trust, if it exists, will result to herself as heir-at-law, by implication, or will inure to the benefit of Orando Taylor’s children, by virtue of the sixth clause-of the will.

The operative words of the bequest, by themselves considered, unmistabedly and admittedly, give to Mrs. Taylor a mere trust. The bequest is plainly expressed to be “ in trust,”' and, as if to make it more certain, it is declared to be “ in trust only.” The question presented, therefore, is whether these words, “in trust only,” are so in conflict with other parts of the will as to justify their rejection or modification, on the ground that the will, taken in all its parts and provisions, shows an intention to give to the wife an absolute and beneficial estate in the rents, dividends and interest, and not a-mere naked trust.

It is a well-settled rule of law, that in order to justify such rejection or modification, the repugnancy must arise upon the-face of the will itself, and cannot be created or supplied by extraneous proof. And it is true also, as has been argued by counsel, that there is no other distinct word or clause in this-will, so in conflict with the clause in question, as necessarily to require the rejection of one or the other. I apprehend,, however, that a direct repugnancy of that nature is not always necessary for the purpose, but that the repugnancy may-consist in the fact that the clause to be rejected is in conflict with the general scope and tenor of the will, including as-well its implications and omissions, as its positive provisions.

The words “in trust only” importing clearly an intention to give to the wife a mere trust, the question to be decided is, whether a contrary intention is more clearly manifested elsewhere, or otherwise, in the will. In other words, does-the simple reading of the will — the whole will and nothing-but the will — inspire the belief that the testator meant to-give to his wife a beneficial interest, or does it inspire the-belief that he meant merely to impose upon her the burden of a trust ? If upon such reading the latter conviction is reached, then we ought to reject the words “ in trust-only,” or assign them some other than their strict legal import, so as to make them harmonize with the other provisions of the will.

The provisions and features of the will which seem to negative the idea of a mere trust estate in the wife are these:

1. The trust is limited to the life of the wife; a limitation wholly useless in case an actual trust was intended, but which is apt and appropriate on the supposition that she was to have-a beneficial interest.

2. The bequest is accompanied by a proviso, that the corpus from which a part of the subject of the bequest arises,, namely, the debts and stock, shall not he diminished; & proviso evidently pointed at the wife, and pregnant with the implication that something else which had been mentioned might be diminished by her; which something else could be-nothing but the income so bequeathed. To hold that this-proviso means, that one trust fund shall not be increased at the expense of the other, is wholly inadmissible. A proviso-is in its nature disjunctive, expressing opposition of meaning. But no opposition of meaning can be found in what precedes-the proviso, unless it be found in the fact that the wife had been invested with the right to diminish the fund so put into-her hands. And in what manner could the testator suppose she would diminish it ? Not, surely, by taking from the income and adding to the corpus from which it was to arise,, A proviso for the purpose of guarding against such a diminution of the income fund would have been useless -and nonsensical. If such had been the intention, the copulative word and ” would have been used, and not the disjunctive word. provided; ” because, in that case, there would be no opposition of meaning, but a mere continuation of the same meaning, and the testator would have said: “ I give the-income to my wife as a trust fund, and the corpus from, which it springs shall not be diminished.” Declaring the income to be a mere trust fund in her hands, was all the inhibition against its use or diminution that was needed, and .it. only remained to add a like inhibition as to the corpusT, which had not yet been disposed of. But the language is,, “provided that such debts and stock shall not be diminished.” Here is an undeniable implication that the income-might be diminished.

3. The testator, while he is careful to provide for the management and protection of the corpus from which the fund is to arise, gives no direction as to the management or protection of the fund itself, or the manner of executing the'trust. Not a word is said as to the times, places, or forms of its investment, or requiring its investment at all; nor is any direction given as to the appointment of another trustee, in the event that the wife should die before the majority of the youngest child of Grundo Taylor, or in case she should decline to act as trustee.

4. No beneficiaries of the trust are named, and none can be inferred even, unless the inference is to be drawn from the use of general terms contained in the sixth clause, which can be fully satisfied, and more appropriately construed, without :any such inference.

5. The receipt of the.devise and bequest made to the residuary legatees is postponed till the decease of the wife, notwithstanding the fact that they might all become of age, and be fully qualified to receive and enjoy them during her life, and without any apparent reason for such postponement, except on the supposition that the wife took a beneficial inter-est.

6. The absence of any apparent reason for severing the two funds, the corpus and the income, constituting as they naturally do but one, if the testator intended to give the whole to the residuary legatees; and when we add to this, that one of the funds, the one most easy of management, and -already secure, was put into the hands of two trustees, with bond and security for its faithful administration, and the other’, a fund whose management required much labor and skill, was placed in the hands of one of the same trustees,— or it might be, the same person acting both as trustee and -sole executrix, and without any security whatevei’ — the supposition that the testator so intended becomes not only impi’obable, but almost absurd. All this was natural enough, and strictly sensible and pi’oper, on the theory that the funds -were thus separated because they ai-e’ given to separate -parties; but if the testator intended both funds for the same persons, the provisions of his will in that respect are not only apparently without any just or wise object had in view, but they seem to be without any object whatever.

These several provisions, implications and omissions of the will strongly repel the idea of an intention to create a trust estate in the wife. Taken separately neither of them may have much force, and each may, on some imaginable theory, be reconcilable with the idea that the wife takes no beneficial interest. But combined, constituting as they do the scope and body of the will, they compel the conviction, that there must be something radically wrong in the assumption, that any real trust was intended, and they force the mind to go back, as it were, and re-read the- words “ in trust only” and see whether some secondary meaning cannot be assigned them, or whether they cannot be rejected altogether.

Although the phrase “in trust” has a well defined.and settled legal meaning, it must be remembered that’ it is a technical phrase, and peculiarly liable, therefore, to be misapplied, or used in some secondary sense, by persons not learned in the law. I can imagine two such secondary senses, or rather inadmissible senses, in one or the other of which the phrase in question might have been, and most probably was, used by the draftsman of this will. He may have intended the idea, that this life income was mtrusted to the wife’s discretion, to be used in whole or in part by her, as she might see proper, thus using the term “ trust ” in the sense of confidence. Or, he may possibly have intended to apply the words “ in trust only, and during her natural life only,” to the corpus, and not to the income, on the ground that by having the use, the wifé virtually had the corpus in her hands. To assign the words either of these secondary meanings, however, would in legal effect be equivalent to their rejection. In case the first suggested meaning was the one actually intended, the wife would take an absolute estate ; and upon the latter supposition, the words “ in. trust only ” would be mere surplusage. I have little doubt but. the former was the sense in which the draftsman of this will used the phrase. He meant, in other words, to do what the law has over and over again decided cannot be done — toengraft a remainder upon a fee. He intended to give the wife full dominion and power of disposition over the property, and then provide that any part of it which she chose to leave at her death, should go over to G-rundo Taylor’s children, trusting entirely to her to make a just and proper disposition of it, at or before her death. The law is well settled that such a devise would vest an absolute estate in the wife, and that for the plain reason, that a party cannot give his property absolutely to one, and qualifiedly to another. He cannot give full and unlimited dominion. over it to one, and any dominion over it or right in it to another. He cannot will his property to another, and then make a will for that other. Now, I can well imagine that the testator might have fallen into the very common error of supposing that he-could thus give the full and free use and disposition of this property, and at tbe same time limit over to the residuary legatees whatever the wife might choose to leave at her death. If such were his purpose, and he was ignorant of the true import of the technical words “ i/n trust f I know of no words he would be much more likely to adopt, to express the confidence he thus reposed in his wife than the words in trust.” In this sense the words are in harmony with the other provisions of the will. In their strict legal meaning they are at. war with all it contains, so far as any light is shed by its contents upon this question of trust. Strike out these words, or, what is the same thing in legal effect, give them this-secondary and impracticable import, and the will becomes sensible, reasonable, and consistent with itself. In their technical' sense they have no apparent kinship with the other words of the will. They stand there as strangers and intruders, apparently in sympathy with nothing that preeedes- or follows them.

That the draftsman of this will was capable of making such a mistake, and that some such mistake equally gross and bungling, either here or elsewhere, in the will, was actually committed by him, is quite evident. He was manifestly unkilled in the art of expressing thoughts by words. The testa¡tor’s intentions, regarding two of the principal subjects of his will, namely, the hind of estate the wife should take in the life income from the property, and, if a mere trust estate, for whose benefit it should be held by her, are not only not made clear and certain, but it would almost seem as if the language •employed had been used for the purpose of covering them up, and it is only by a very liberal use of the rules of construction that they can be reached, or rather conjectured, at all. Some of the words of the will must be eliminated, or severely modified, otherwise no sensible and reasonable con•clusion can be attained as to what the testator’s intentions in relation to this life income reallywere. We are compelled either to eliminate the phrase “in trust only,” or else to eliminate from the will its reasonableness, its good sense, and the harmony and consistency of its several parts. These words out, and all is plain. With them in, the will is a riddle The maxim that a remainder cannot be engrafted on a fee is a truism resulting from adjudications made in cases where blunders, like the one here supposed, have been committed, and where a consequent repugnancy has resulted. Inconsistent estates in the same property were apparently devised. In one part of the will, or viewed from one standpoint, the testator seemed to have intendéd an absolute fee in the first devisee, while in another part of the will, or viewed from a different standpoint, he seemed to intend a remainder in fee to a second devisee. Both intentions cannot be carried out. Either both the apparent devises must be declared void for uncertainty, or else one or other must be rejected, or modified. The latter alternative has invariably, been adopted by the courts. The cases under this head, accordingly, arrange themselves into two classes, those where the present estate is left to stand as a fee-simple^ and the remainder is rejected, and those where the remainder is left to stand, and the present estate is cut down to a life interest. I cannot better summarize the rules by which courts seem to have been guided in both classes of cases, as I understand those rules, than by saying, that we are to discriminate in favor of the estate, or rather the intention, which the will, taken in all its parts, most strongly supports. It is simply a question of probable meaning, to be decided in the light of all that appears in the will. A leading case of the last-mentioned class, where the fee-simple estate was cut down to a life interest and the remainder permitted to stand, is that of Smith v. Bull, 6 Pet. 68. There the language of the bequest to the wife, by itself considered, clearly imported an’absolute title. The bequest was'expressed to be “for her own use and benefit, and disposal absolutely.” And yet the court held that enough appeared elsewhere in the will to show that the testator meant to give her only a life estate. This case was "substantially followed by us in the case of Baxter v. Bowyer et al., 19 Ohio St. 490, where the leading cases on the subject will be found referred to.

I allude to these adjudications for a single purpose, and that is, to show that the principle which necessarily underlies them all is broad enough to reach the present case. That principle is no narrower than this, that language plainly importing a devise or bequest, of any description of estate, may, by what appears elsewhere in the will more plainly, be overcome or modified, so as to annihilate the estate, or change it into an estate of a different hind. If the result indicated is a change, it matters not whether the change is to be made by cutting down, or by magnifying the estate. The same reason and the same necessity underlie both processes. If the hand of construction is at all to be laid upon the immediate .words of the devise or bequest, it must be left free, as well to build up as to pull down. If a' fee-simple may be thus cut down to. a life estate, for a similar reason a trust estate may be raised to a beneficial estate.' It is a rule which necessarily works both ways, if it works at all. It is a rule which can never be applied except to wills which are inartifieially drawn. It is said that no two wills are alike, and the saying is very probably true if applied only to wills inartificially drawn, and therefore the manner and process of applying the rule in each case will depend upon the particular nature of the blunder committed by the draftsman. I have already indicated the character of the blunder which wa think most probably occurred in drawing this will. If we are right in this, it was the testator’s intention to give the wife a beneficial interest.

Upon the whole, we are of opinion that these words in trust only,” in their ordinary legal sense, are so in conflict with the general scope and tenor of the will, that they must be rejected, or held to have no legal effect in its construction, and that the wife took an absolute property in the rents, dividends, and interests specified in the fourth clause of the will.

Petition dismissed, without costs.

Scott, C.J., and ‘White, Day, and McIlvaine, JJ., concurred.  