
    CASE 26 — PETITION EQUITY
    OCTOBER 8.
    Jacob vs. Jacob, &c.
    APPEAL FROM LOUISVILLE CHANCERY COURT.
    1. “All my estate, real and personal, * * ® shall be equally divided among my children. * * * The share of my estate allotted to my son William R. Jacob, shall be retained by my executors, paying to him during life, quarter-yearly, the net proceeds of the rents and profits thereof; * * * but he shall have no power to sell or encumber any part of the estate allotted, or the profits thereof, or lo anticipate its receipt; nor shall the same be in any way liable for his debts. After his death the property, with the unexpended avails, shall be conveyed and paid to bis descendants, * * * in the same manner as it would pass by the law of descents, if the same were to descend from him. If there be no such descendants, then the same shall be conveyed and paid to his heirs.”
    Wm. R. Jacob died, leaving a widow and one child. In construing the foregoing clauses, &c., of the will of John I. Jacob, the court held that the legal title of W. R. Jacob’s share remained in the executors as trustees, and that the testator intended to carve out a life estate only to him; that he did not take a fee by implication, but only a life estate, with remainder, which passed by the will, and not by the law, to his descendants or heirs; but these devisees in remainder, though taking under the will, and not as descendants or heirs of W. R. J., still take precisely the same as though the property had descended by law from him; and his widow took a dower interest as 
      
      legatee by implication, and the child took the other estate in fee, just precisely as though the property had been owned in absolute fee by its father, and he had died intestate.
    2. A widow is entitled to dower, as legatee by implication, in the life estate which was devised to her husband, with remainder at his death to pass by the law of descents to his descendants.
    3. Previous clauses of a will must be construed as harmonious with subsequent clauses, and if inconsistent therewith, they must give way under a familiar rule, that the last will must prevail.
    J. F. Bullitt and E. M. Yerger, For Appellant,
    CITED—
    12 B. Mon., 65, 73, 74, 76; Northcut vs. Whip, fyc.
    
    
      Act of 1796, sec. 14, 1 M. and B., 444, and 11th sec., p. 443.
    
      Revised Statutes, chap. 80, sec. 10.
    14 B. Mon., 560; Turman vs. White’s heirs.
    
    
      Hill on Trustees, chap. 2, sec. 1, and s. p. 248.
    2 Jarman on Wills, s.pp. 194, 181, 32.
    8 B. Mon., 616 ; Deboe vs. Bowen.
    
    
      8 B. M., 625; Grimes vs. Ballard.
    
    6 Cruise’s Digest, p. 181.
    1 Jarman on Wills, s. p. 465.
    1 Mon., 25; Chinn and wife vs. Respass.
    
    1 Dana, 199 ; Stone’s adm’r vs. Halley.
    
    1 Scribner on Dower, pp. 229, 270, 271, 273, 294, fyc., 802.
    F. K. Hunt, For Appellees, and R. W. Woolley, For some of the Beneficiaries,
    CITED—
    1 Jarman on Wills, s.p. 830.
    2 Jarman on Wills, s.p. 810.
    1 Sim. R., 66; Graves vs. Dolphin.
    
    1 Russ, and Myt., 395; Green vs. Spicer.
    
    
      18 Ves., 429; Brandon vs. Robinson.,
    
    2 Red field on Wills, 665-7.
    4 Kent’s Corn., 131.
    2 Caine’s R., 353 ; Newkirk vs. Newkirk.
    
    5 Paige, 583; Hallett vs. Thompson.
    
    8 Paige, 83 ; Cíate vs. Bool.
    
    1 M. Sf B., 443; 2 Rev. Stat., 230, chap. 24, sec. 2.
    
      Rev. Stat., chap. 80, sec. 6, 2 Stant., 230.
    12 B. M., 483; Johnson vs. Ellis.
    
    3 Met., 260 ; Samuel vs. Salter.
    
    8 B. Mon., 56; Pope’s ex’rs vs. Elliott Co.
    
    
      MSS. Opn. j Stewart and wife vs. Brady.
    
    14 B. Mon., 560; Turman vs. White.
    
    
      MSS. Opn., Jan., 1852; Humphreys vs. Evans.
    
    
      Williams’ Law of Real Property, 49, 192.
    14 B. Mon.; Daniel vs. Thompson.
    
    16 B. Mon.; Carr and wife vs. Estill.
    
   CHIEF JUSTICE WILLIAMS

dewyered the opinion op the majority op the court:

By the second item of his will, John I. Jacob devised all his estate, “real and personal, to my (his) executors, the survivor or survivors of them, for the purpose of executing this will.”

“ 3d. All my estate, real and personal, after the payment of my debts, shall be equally divided among my children by three commissioners, to be appointed by and under the supervision of the Louisville chancery court, except as herein directed.

“ 11th. The share of my estate allotted to my son, William R. Jacob, shall be retained by my executors, paying to him during his life, quarter-yearly, the net proceeds of the rents and profits thereof, after deducting repairs, insurance, and taxes, with power to sell any unimproved property in his share for the purpose of investing the proceeds in permanent improvements; but he shall 'have no power to sell or encumber any part of the estate allotted, or the profits thereof, or to anticipate its receipts; nor shall the same be in any way liable for his debts. After his death, the property, with the unexpended avails, shall he conveyed and paid to his descendants, if there be any such living, in the same manner as it would pass by the law of descents if the same were to descend from him. If there be no such descendants, then the same shall be conveyed and paid to his heirs.”

The legal title of W. R.. Jacob’s share remained in the executors as trustees, to pay over quarterly the annual .profits to him, with power to sell unimproved’real estate, for the purpose of-investing the proceeds in permanent improvements.

When the commissioners should divide the estate, as provided in the will, and allot William’s share, still the legal title would remain in the executors, for the purpose of executing the will, which, so far as he was concerned, would be to pay over to him the annual profits during his life, and at his death to convey and pay to his descendants or heirs, in such proportions as they would be entitled to had the estate descended from him to them.

The testator clearly manifested a desire to make the estate as profitable to William during his life as could reasonably be done consistent with the rights of those in remainder, by vesting the power in the executors to sell unimproved estate and vest it in improved; and that he intended to carve out a life estate only to his son William, is quite as apparent from his vesting the legal title in his executors, there to remain until his son’s death, wfithout power of alienation, conditional or otherwise, in him, and then to be conveyed to his descendants or ^ heirs, thereby -clearly making a remainder, which passes by thé will, and not by the law, to William’s descendants or heirs.

It was not intended by the testator that there should be any incongruity in the different items of his will; therefore, the second, third, and eleventh should be construed as consistent'arid harmonious, unless the language disallows this. ’ ' ' •

The second devised all his estate to his executors, for the purpose of executing his will; and so far as William is specially named and provided for, it is found in the eleventh item, and which gives him the profits for life, with remainder to his descendants or heirs. The third clause was, then, evidently intended to specify the portions and manner of the division — that is, equally and by three commissioners, to be appointed and controlled by the chancery court. Having therein provided that the estate was to be divided into equal shares, and by what process this was to be ascertained, except as to some specific devises following, the testator then proceeds with his direction and devise as to each share, making the desired limitations, &c.; and this is umade the more manifest in the twelfth, thirteenth, and fourteenth clauses, by which he directs that the property allotted to his daughter, Susan Maria, and his other daughters, “ shall be held by my executors in same manner as in the eleventh clause mentioned, for the use and benefit of each of said daughters, severally, during her life, * * ' * and after her death to be conveyed and paid to her descendants or heirs, as in said clause mentioned;” and as to property allotted to each of his sons, except John, to be held “ in like manner, for like use of each of said sons, severally, during his life, with lik,e restrictions,” &c., “ and after his death to be conveyed or paid to his descendants or heirs, as in the eleventh clause directedand in the fourteenth clause he restricts John’s interest in the farm devised to him to its use for life, with remainder over.

Thus he had, by subsequent clauses, each, however, referring to the eleventh clause, limited the previous devises to a life estate in all his other children, and no perceptible motive can be seen for exempting William from this general purpose of the testator to give a life estate to his children, with remainder over to their descendants.

Whatever construction, therefore, might have been given to the third clause, uncontrolled by the subsequent clauses, yet, with this manifest purpose of the testator therein appearing, it must be construed as harmonious with the subsequent clauses, or, if inconsistent therewith, it must give way under a familiar rule, that the last will must prevail.

But these devisees in remainder, though taking under the will, and not as descendants or heirs of William, still take precisely the same as though the property had descended by law from him. In other words, had there been children and grandchildren, whose parents were dead, then each child would take a share, and the children of the dead child would take the share their parent would have been entitled to if alive. So, as William left a surviving widow, and but one child and descendant, the widow took a dower interest, as legatee by implication, and the child took the other estate in fee, just precisely as though the property had been owned in absolute fee by William, and he had died intestate.

All these provisions manifest an intention in the testator, that, should any of his sons die, his surviving wife should be endowed, as he devises the remainder to those who would take under the laws of descent from the holder of the life estate.

The authorities are abundant, and need not be recited, to show that William did not take a fee by implication, but only a life estate.

The appellant is entitled, as legatee by implication, to so much as she would have taken from her deceased intestate husband had he owned the estate.

Judgment reversed, for further proceedings consistent herewith.

Judge Robertson, though concurring in the judgment, does not concur in the reasoning herein.

JUDGE 'ROBERTSON

concurring with the decision op the majority OP THE COURT IN THE POREGOING OPINION, BUT NOT CONCURRING WITH THE REASONING THEREIN, DELIVERED THE FOLLOWING SEPARATE OPINION:

After the opinion first delivered unanimously by this court, a rehearing was granted on an able and earnest petition of a party that had not been heard before that decision. The case has not been reargued except by that petition.

The majority of the court has taken back the first opinion, and substituted another, essentially different, on the construction of the will of J. I. Jacob. Both opinions allowed the widow of W. R. Jacob dower, and concur in one of two grounds adjudged by the first; and, consequently, I concur in the conclusion of the last opinion. But as the unanimous concurrence in so much of the last opinion, as gives to the widow all she claims, I thought it unnecessary and rather unsafe to overrule, by a bare majority, the construction of the will given in the first opinion. I considered it more prudent and befitting to leave that superfluous matter undecided as it stood when the rehearing was granted. But as the majority saw fit to take another course, and I cannot concur in its changed construction of the will, and, able as the petition is, have not changed my opinion, but feel it rather strengthened by a more careful consideration of the case and scrutiny of the authorities cited, none of which, in my judgment, apply essentially to the provisions of Jacob’s will, I will submit my former opinion for the ground of my dissent; and, as I have no time to devote to the unnecessary purpose of elaboration, I will only add, that the opinion, as now rendered, will deprive all the daughters and most of the sons of the testator of more than a life estate, and this increases the force of my objections to it.

This is a friendly litigation between a widowed mother and her infant daughter, for the purpose of obtaining a judicial construction of a devise by John I. Jacob to his son, William Robinson Jacob, the husband of the widow, and father of the daughter, who is his only child.

The devisee, W. R. Jacob, having survived the testator and died intestate, his widow claims dower in the estate devised to him; and his infant daughter’s next friend, claims the whole of the estate unencumbered by dower.

The Chancellor adjudged the whole estate to the child; and this appeal by the widow requires a revision of that judgment.

The clauses of the will which bear directly on the question herein involved are as follows:

“ 2. I devise all my estate, real and personal, -to my executors, the survivor or survivors of them, for the purpose of executing this will.
“3. All my estate, real and personal, after the payment of my debts, shall be equally divided among my children by three commissioners, to be appointed by and under the supervision of the Louisville chancery court, except as herein directed.
“11. The share of.my estate allotted to my son William Robinson Jacob shall be retained by my executors, paying to him during his life, quarter-yearly, the net proceeds of the rents and profits thereof, after deducting repairs, insurance, and taxes, with power to sell any unimproved property in his share for the purpose of vesting the proceeds in permanent improvements; but he shall have no power to sell or encumber any part of the estate so allotted, or the profits thereof, or anticipate its receipts; nor shall the same be, in any way, liable for his debts. After his death the property, with the unexpended avails, shall be conveyed and paid to his descendants, if there be any such then living, in the same manner it would pass by the law of descent if the same were to descend from him; if there be no such descendants, then the same shall be conveyed and paid to his heirs.”

Other provisions in the wall prescribed the same restrictions and qualifications on the property to be allotted to some of the testator’s other sons, and to all of his daughters ; and all the inter-alotments had been made before the death of William Robinson Jacob.

The spirit and context of the will manifest a cautious purpose to preserve the estate devised to most of the testator’s children for the benefit of themselves and families, and for secure transmission to their immediate descendants or heirs; and that provident aim was his only presumed motive for devising the legal title to his executors and securing the equitable title from improvident alienation or encumbrance by the testamentary beneficiaries to whom, by the third clause, he devised it, without limitation as to time, except in the usufruct for life.

The will imports an absolute devise to his children, subject only to the legal title in the trustees, and to the express limitations on their use and on their power of disposition by sale, mortgage, Or devise. The use, and not the title, is expressly limited to the life only of the beneficial owner of the title. Had the testator intended that the title should cease with the life, no reason for such a purpose has been suggested or can be presumed; and why, in the legatory clause or elsewhere, did he not expressly say so ? And if he intended that descendants should take by purchase and not by law, why did he not say so explicitly; and why, in relation to the ulterior transmission of title, did he use the words “ descendants or heirs ? ” If he so intended, he has been strangely unlucky in .the use of langage which imports what he did not mean. The devise of the equitable title of his entire estate, to “ be equally divided” among all the testator’s children, certainly passed, the whole of that title to each of them as afterwards allotted. This is the plain construction of the third clause, which alone devises the estate ; and this must be its inevitable effect unless controlled by some other provision limiting the estate to life. We see no such express limitation; nor is there any other provision which implies any such limitation. The only limitation on the equitable fee simple is that contained in the eleventh clause, and that is only on any alienation or encumbrance of the title. The direction to the trustees to convey the legal title and pay any residual profits to the descendants or heirs, does not imply such limitation. The only presumable reason for that direction was, that the legal title had been devised to the trustees for a purpose fulfilled at the death of the testamentary recipient of the equitable right, and whoever succeeded to that equity was entitled to the legal title which the holders of it alone could convey; and, so too, as to the unexpended profits in the same custody. And why did the testator simply direct conveyances and payments instead of devising the title directly to those to whom the conveyances were to be made ? The will does not, in our opinion, devise a life estate in the title and also a remainder. We presume that, if the testator had so intended, his language would have been unambiguous and essentially different from that which his eminent counsel employed.

Having secured the title from alienation by the devisees to the prejudice of “their descendants or heirs” to whom it would then go by law, there was no necessity for a specific devise for transmitting by will precisely the interest which would, undevised, pass to the same persons, and to exactly the same extent. There could be no consistent motive for such apparent absurdity, unless he intended, unreasonably and unjustly, to deprive widows of dower and surviving husbands of curtesy; and such a purpose could not be imputed to such a man and such a fathér as John I. Jacob, of Louisville; and such an intent is also negatived by his silence on that subject, and by his declaration that the transmission should be as by descent.

By harmonizing the will consistently with its context, and with reason and justice, the appellee’s title is that of the heir of her father, and not of a devisee of her grandfather; but if the appellee even holds as devisee and not as heir, the testator’s declaration that the title shall pass as if it descended from her father, subjects it to all the same legal consequences so far as the widow is concerned, and,-reserves all her rights as in estate descended from her husband. Therefore, even according to this interpretation of the will, the testator did not intend to cut her off; and, consequently, •as widows here are dowable of equitable estates which descend, the appellant is entitled to dower in this case.  