
    Stophlet, Exrx., v. Stophlet et al.
    
      Wills — Inconsistent provisions reconciled, but irreconcilable provisions rejected — Limitation over rejected where fee given first devisee — Remainder cannot be ingrafted on fee —Testator’s intention not to give first devisee absolute fee, determined, how.
    
    1. If two provisions of a will are apparently inconsistent, they should be reconciled and both given effect, if the language used and the circumstances will warrant the conclusion that by so doing the manifest intention of the testator can be carried out; but, if the two provisions are absolutely irreconcilable, and a fee in the first devisee is clearly and unmistakably given, a limitation over must be rejected, because, if the testator has given the whole estate in fee simple, he has nothing to give in remainder. It is settled that a remainder cannot be in-grafted on a fee.
    2. If the first provision only prima facie imports an absolute estate, and the circumstances warrant the conclusion that the testator did not intend to give to the first devisee an absolute estate in fee simple, then the intention of the testator, as ascertained from the whole will, fairly construed in the light of all its provisions and the surrounding circumstances, should be carried out.
    (Decided May 26, 1926.)
    Appeal: Court of Appeals for Wayne county.
    
      Messrs. Critchfield, & Etling, for plaintiff.
    
      Messrs. Kean & Adair, for defendants.
   Washburn, J.

In this case we are called upon to construe the following provision of a certain will:

“I give and devise, to my beloved wife, Elisabeth, all the residue of my estate, to be hers forever. At the death of my said wife the property is to revert to my brothers and sister and their heirs, viz.: S. W. Stophlet, E. W. Stophlet and Olive Plank.”

If two provisions of a will are apparently inconsistent, they should be reconciled and both given effect, if the language used and the circumstances will warrant the conclusion that by so doing the manifest intention of the testator can be carried out; but, if the two provisions are absolutely irreconcilable, and a fee in the first devisee is clearly and unmistakably given, a limitation over must be rejected, because, if the testator has given the whole estate in fee simple, he has nothing to give in remainder. It is settled that a remainder cannot be ingrafted on a fee.

If the first provision only prima facie imports an absolute estate, and the circumstances warrant the conclusion that the testator did not intend to give to the first devisee an absolute estate in fee simple, then the intention of the testator, as ascertained from the whole will, fairly construed in the light of all its provisions and the surrounding circumstances, should be carried out. Baxter, Adm’r., v. Bowyer, 19 Ohio St., 490.

The controlling question in the instant case is: Is there anything in the provisions of this will and the surrounding circumstances, other than the limitation over, warranting the conclusion that the testator did not mean to give an estate in fee when he gave the residue of his estate to his wife “to be hers forever?”

The will is very short, and we find nothing therein, or in the surrounding circumstances, indicating that the testator did not intend to give the estate to his wife absolutely and forever, except the inconsistent provision of a limitation over.

The provision giving her the absolute estate must prevail or else the provision inconsistent therewith must prevail. The two provisions being absolutely irreconcilable, the rule that a remainder cannot be ingrafted on a fee must control. Hull v. Chisholm, 7 Ohio App., 346; Steuer v. Steuer, 8 C. C., (N. S.), 71, 18 C. D., 145; Robraham v. Gregg, 2 Ohio App., 108; Watkins v. Price, 16 Ohio App., 27.

A decree may be entered as in the court below.

Decree for plaintiff.

Pardee, P. J., and Funk, J., concur.  