
    William H. Gilpin and Euretta his wife v. Francis B. Williams and others.
    1. Where the words of a will, creating a trust, clearly point out what the trust is to be, and distinctly specify its limitations, the same construction will be put on the words of the will, whether the trust be regarded as executed or executory.
    2. Where a testator devises to his “ daughter E., during her natural life, and to her children after her death forever,” one-eighth part of his real estate, and there is no provision in the will in respect to a disposition of the remainder in case E. shall die without having had issue, and there is nothing in the will showing a contrary intention on the part of the testator, E. takes a life estate only; although, on the death of E. without having had issue, the testator will have died intestate as to the contingent reversion of her share, and the same will revert to his heirs general.
    3. In cases of executory trusts, created by will, the words of the will shall have their full legal effect, unless it appear from the will itself that the testator’s real meaning will be frustrated by a strict execution of his directions.
    *4. The rule that a testator will not be presumed to have intended to die intestate as to any part of his estate, to which his attention seems to have been directed, applies only in the construction of a will the language of which is of equivocal import.
    Appeal. Reserved in the district court of Hamilton county.
    The case stated in the opinion of the court.
    
      W. Y. G-holson and J. W. Okey, for plaintiffs:
    1. This is plainly a directory trust; the testator has not been his own conveyancer ; but he has “ left it to the court to make out from general expressions what his intention is.” Egerton v. Brownlow, 4 H. L. Cas. 210; Jarman on Wills, 253*; Adams’ Eq. 40*, n. 2; Edmondson v. Dyson, 2 Kelly, 307; Wood v. Burnham, 6 Paige, 513 ; S. C., 26 Wend. 9; 1 Lead. Cas. in Eq. 1, and notes; Fisher v. Fields, 10 Johns. 495, 506; Jervoise v. The Duke of Northumberland, 1 Jac. & W. 539; Stoner v. Curwen, 5 Sim. 264; Blackburn v. Stables, 2 Ves. & Bea. 367; 2 Jarman’s Pow. on Dev. 44-49, 442; 2 Story’s Eq. Jur., sec. 974; Lewin on Trusts, 4, 87, 561; 2 Spence’s Eq. 130, 224, 249; Countess of Lincoln v. Duke of Newcastle, 12 Ves. 218, 227, 230; Rochfort v. Fitzmaurice, 4 Irish Eq. 375; 1 Story’s Eq. Jur., see. 179; Cram v. Green, 6 Ohio, 429; Wilcox’s Pr. (2 ed.) 585; 4 Kent’s Com. 163*, note d; Le Clercq v. Gallipolis, 7 Ohio (1 pt.) 217-221; Winckworth v. Winckworth, 8 Beav. 576; Mayer v. Townsend, 3 Beav. 443; Hulme v. Hulme, 9 Sim. 644; Campbell v. Brownrigg, 1 Phil. 301; Gurney v. Goggs, 25 Beav. 334; Corbett’s Trust, 1 Johns. Eng. Ch. 591.
    A testator is never presumed to intend to die intestate as to any part of his estate, or any possible interest therein, when his intention appears to have been called to the subject; and a court of equity will put such a construction upon equivocal words as to prevent such a result. Collier v. Collier, 3 Ohio St. 369, 373; Pyot v. Pyot, 1 Ves. Sen. 335; Bernasconi v. Atkinson, 17 E. L. & E. 103; Boys v. Bradley, 17 E. L. & E. 132.
    And the rule that the general intention is to have a controlling effect in cases of this sort, is recognized in many of *the cases already cited, and was adopted in Parks v. Parks, 9 Paige, 107; Constantine v. Constantine, 6 Ves. 99; 4 Mass. 208; 6 Mass. 175; 3 Yeates, 187.
    The general rules for the interpretation of wills have been often, stated with clearness by the Supreme Court of this state. Thus, in Starling v. Price, 16 Ohio St. 29, 31; Banning v. Banning, 12 Ohio St. 456; Moore v. Beckwith, 14 Ohio St. 132; Thompson v. Thompson, 4 Ohio St. 333; Lessee of Williams v. Veach, 17 Ohio, 180; Brewster v. Benedict, 14 Ohio, 383. And see other cases collected in the Ohio Digest, 324, 580. See also Wills Act, sec. 55; 8 Ohio, 365.
    The question is one of construction. Every case must necessarily, in a great measure, stand by itself — must be determined from the language of the whole will. Brasher v. Marsh, 15 Ohio St. 103, 109.
    2. The question before the court may, we think, be properly stated in this form: Does it clearly appear, looking to the language of the will and the apparent object of the testator, that in the contingency mentioned — a failure of children in the plaintiff Euretta — she shall not be entitled to the whole estate ? We deny that, looking to the whole will, and the facts existing at the time of its execution, any such inference can be drawn.
    Much of the property was unproductive. Was it intended that the plaintiff Euretta should improve her part of the real estate, and pay the taxes and assessments thereon, and that in the event she should die without children, that the whole should pass to her brothers,and sisters? On the contrary, the terms of the will and the condition of things at the time it was made, strongly support the claim of the plaintiffs; and the construction for which we contend is plainly in accordance with the affections and intentions of the testator.
    In disposing of his property, the testator provided first for his widow, in a manner similar to that contemplated by the statute, and then, as to his eight children, equality was his main object.
    Why did the testator, when he provided that in case of the death of a devisee his share should pass to the other devisees, restrict this in terms to the death of a devisee within the *fifteen years? If ho had not intended that a different rule should prevail in case of the death of a devisee after the fifteen years, these words would certainly have been omitted.
    When we look to the general provisions and expressions, we can, not fail to see that the testator intended to dispose of all his property. He gave all his real estate to trustees; they were required to convey all to his children in equal proportions. But the equal share of each daughter was subject to a provision inserted by the testator for the benefit of her children; hence, failing the children, the daughter takes the whole, and the trust should be so executed; the case thus falling within the principle of Winckworth v. WinCkworth, and other cases of that class already cited.
    3. Waiving the principle of that class of cases, and looking only to the general principle as to directory trusts, the result will be the same. If a deed or settlement is to be made, as required by the general expressions and provisions of the will, of one-seventh of the estate to a daughter and her children, this can-only be done by conveying, as we claim in this case.
    
      B. P. Banney, for E. B. Williams.
    1. The rules for construing the will claimed by plaintiffs are quite correct, and are made complete when it is added that, after looking at the whole will and considering its language in the light of the surrounding circumstances, “ the will must speak for itself, and the intention of the testator must be gathered from what appears on its face. To allow the natural import of the words thus ascertained to be varied or contradicted, or omissions supplied, or apparent ambiguities to be removed by parol evidence, would be to repeal the law requiring it to be in writing, and to introduce all the uncertainty, fraud, and perjury the statute was designed to prevent.” Lessee of Worman v. Teagarden, 2 Ohio St. 382.
    2. The plaintiff, Euretta, is, very plainly, given but a life estate.. She now seeks a decree enlarging it, upon the presumption that her father would have given her a fee simple, if he had foreseen that she would, up to this date, have no children. To grant it, is not only to make a disposition for her which *the testator has not made, but also directly to contradict the one he has made; while the settled rule is, that intention merely, however clearly expressed, in the absence of an actual disposition of the property, is unavailing. Crane v. Doty, 1 Ohio St. 282; Needles v. Needles, 7 Ohio St. 432; Bane v. Wick, 14 Ohio St. 508; Nickerson v. Bowley, 8 Met. 424.
    3. There is nothing in the will to show that the testator even desired her to have a fee simple in the event that she had no children, much less anything that can operate as a disposition of a larger estate than that expressly named and described. Everything relied upon is simple conjecture. Who can penetrate the mind of the testator so as to be able to say that, in the event she died unmarried, he-did not desire his1 other children to take that share? Or, if married, and dying without issue, he would not have preferred that they should then take, than that the whole might be squandered by a husband, or diverted outside of his blood altogether? This would, not be an unreasonable conjecture; but upon conjectures pro or con the court is not at liberty to act. The law has provided a definite successor to every interest not effectually disposed of by the will, and to displace this successor, another must be pointed out by the will, with at least equal distinctness, is the universal language of the decisions.
    The controlling question is stated by the learned counsel for the plaintiffs with great ingenuity, but with very little regard to controlling decisions. “Does it clearly appear,” they inquire, that the testator intended, if Euretta had no children, that she “ should not-be entitled to the whole estate?” By the decisions, it must clearly appear that he intended she should have it. Those who would take property from the heir must make a case affirmatively, and can not require him to prove a negative.
    4. The circumstances, in and out of the will, upon which the plaintiffs seem to rely, are: 1. That the whole estate passed to the trustees, and that they must necessarily convey the whole to exe^ cute the trust; 2. The unproductive character of the property; 3. The inference arising from, the provision made in case of the death of any of the children within *the fifteen years; and, 4. The presumed intention of the testator to dispose of his entire estate. Of these in their order.
    1. It is perfectly settled that trustees take just such an estate as is necessary to enable them to execute the trust and no more. 2 Redf. on 'Wills, 501, and cases cited in note 50. This will is most explicit upon that point. It devises to the trustees and the survivor of them, without words of perpetuity, the lands, “in trust for the uses and purposes herein specified;” and the last purpose specified is, at the expiration of fifteen years, “ to surrender up the control of all my real estate, and release the title hereby vested in them as herein directed, to wit, to my son,” etc. It is certain that they took such title only as would enable them to make just such deeds as the testator specifically directed; that when they made such deeds they divested themselves of all title, and fully executed the trust; and this they did more than twenty years ago.
    2. I see nothing in the condition of the property to throw any light upon the construction of the will. It is certain that the testator considered it productive from the trust expressed as to its use, and, being in and contiguous to a large and growing city, he might well expect it to become rapidly more so. Besides, it gives to the plaintiffs all the estate and interest that it gave to either of his other daughters.
    3. The provision vesting the interest of any one of his children, ■either sons or daughters, in the survivors, who should die within fifteen years, fortifies instead of weakening the proposition of the defendants, that the testator, if he had spqken his wishes upon the subject, would have reserved the contingent reversion in the shares of his daughters to the residue of his children or their descendants, rather than suffer it to go to a husband, or be diverted out of his family.
    4. The testator did dispose of his whole estate — of every item of property belonging to it — but he did not provide for the happening of possible contingencies. The demand upon this court to provide a disposition upon such contingencies, is simply asking it to exercise testatorial instead of judicial powers.
    5. The result of all the authorities upon the distinction between executed and executory trusts, is this: Where the ^testator has clearly defined the limitations of a trust estate, it is an executed trust, or is to be construed as an executed trust; but where he has left the means to be adopted undefined, and has simply expressed a result, the court has a discretion as to the adoption of the means for reaching that result. In this sense, this is an executed trust, the precise thing to be done by the trustees being clearly defined by the testator, and leaving no power in the court to devise means other than th ose he.has expressly defined. In all the other cases cited, a full estate was given in the first instance, to be diminished by a contingency which did not happen; while here the only grant is of a life estate, with a remainder in fee, contingent upon the birth of children. This contingency not happening, can in no event enlarge the limited estate given to Euretta.
    
      8. & 8. JR. JMJatthews, for defendants:
    1. The trusts now in question are not, in any sense known to courts of equity, executory or directory, so as to require or justify a decree directing a conveyance of the interest now in controversy, in any terms, different from those employed by the testator himself, in its original creation; and there is no intention, clearly expressed or fairly to be inferred, which is not fully perfected by the conveyance already made by the surviving trustee. Lewin on Trusts and Trustees, 85, 95; Neves v. Scott, 9 Howard, 211; S. C., 13 Howard, 270; 1 Mad. Ch. 558; 2 Story’s Eq., sec. 983; Jervois v. The Duke of Northumberland, 1 Jac. & Walker, 559; Jeremy on Eq. 31; Adams’ Eq. 40; 2 Spence’s Eq. Jr. 131, 132, 135; Edmondson v. Dyson, 2 Kelley, 367; Austen v. Taylor, Ambl. 378; S. C., 1 Eden, 368; Seal v. Seal, Prec. Ch. 421; S. C., 1 P. W. 290; Sweetapple v. Bindon, 2 Vern. 536; Blackburn v. Stables, 2 Ves. & B. 370; Synge v. Hales, 2 Ball & B. 508 ; Britton v. Twining, 3 Mer. 176; Marshall v. Bonsfield, 2 Madd. 166; Lord Deerhurst v. Duke of St. Albans, 5 Madd. 260 ; Rochford v. Fitz Maurice, 2 Drur. & W. 21; Franks v. Price, 3 Beav. 211; Samuel v. Samuel, 9 Jur. 222 ; Fearne Cont. Rem. & Ex. Dev. 144; Glenorchy v. Bosville, 1 Lead. Cas. in Eq. 55, notes.
    2. Suppose it to be admitted, that, for sufficient reasons, the court feels authorized or required to supply a new ^limitation of this trust estate, in view of the contingent remainder to Euretta’s children never vesting, what shall it be? The answer to that must be given, after ascertaining what the testator intended it should be. The plaintiffs contend that it ought to be a limitation in fee to Euretta herself. Waiving the objection to this, that it would defeat the contingent remainder in fee to her children, by the destruction of the particular estate for life of Euretta, by merger, which might be mot, by the interposition of an additional limitation to trustees to j)reserve the contingent remainder, still it is obvious -that such a limitation could never have been intended by the testator. There is no evidence in favor of such a supposition. It is altogether inconsistent with the only intention he has expressed on the subject, for it actually destroys the very estate which he has expressly conferred upon her, and gives her an inheritable estate, which subjects her to that influence and control on the part of her husband which must have furnished the only motive to the testator for making the restrictions he has expressed. The fact that the testator has expressly given to his daughter Euretta an estate for life, is conclusive that his intention was that she should take that estate and no more. Tallman v. Wood, 26 Wend. 20; Hawkins on Construction of Wills, 267; 2 Williams’ Ex’rs, 1138; 1 Roper on Legacies, 648; 2 Redf. on Wills, 649.
    
      F. A. Ferguson, also for defendants:
    1. What estate did the trustee take ?
    (1.) This will was made before the act of March 3, 1834 (1 Cur-wen, 145), giving all the estate the divisor had, unless the will, “ by express words, or manifest intent,” showed that a lesser estate was-intended. Therefore, neither that act nor the present wills act, section 55, have any application to this case.
    (2.) It may be laid down as a general rule, that when an estate is devised to trustees for particular purposes, the legal estate is vested in them as long as the execution of the trust requires it, and no longer, and therefore, as soon as the trusts are satisfied, it will vest in the person beneficially entitled to it. Doe v. Nicholls, 1 B. & Cr. 336; S. C., 8 E. C. L. 92; Hawkins *on Construction of Wills, 143, 144; and see Goodtitle v. Whitly, 1 Burrows, 228; Doe v. Lea, 3 Tenn. 41; How v. Fuller, 19 Ohio, 51.
    There are no words in this will which give the trustees an estate beyond the time during which the trust was to be performed; and the case falls within the general rule above mentioned, that a trust estate is not to continue beyond the period required by the purposes-of the trust. They therefore took an estate for the term of fifteen years.
    2. It follows, from the foregoing cases and principles, that the will operated as a conveyance to the devisees of the estates limited in it, with a trust to be executed for their benefit during the term of fifteen years.
    The presumption is that the testator knew the. law, and that he intended on the failure of the contingent remainder to the children of the daughters, the fee should revert to his own heirs. King v. Beck, 15 Ohio, 564.
   Brinkerhoff, J.

The plaintiffs filed their petition in the common pleas of Hamilton county, to obtain a construction of the will of Thomas Williams, deceased, the father of the plaintiff Euretta, claiming that under the provisions of the will, properly construed, and by reason of the death of one of her brothers without issue, the said Euretta is entitled to an estate for her life in one-seventh part of the real estate of the testator, and if she shall die without having had a child or children, then to a fee-simple estate in such seventh part. The heirs and devisees of the testator, and the surviving trustee named in the will and his heirs, are made parties defendant.

Issue having been taken by answer to the petition, the ease was submitted to the court on an agreed statement of facts ; and a decree having passed in the common pleas, the case was appealed to the district court, where it was reversed for decision in this court.

The facts apparent from the pleadings and the agreed statement are these:

The plaintiff, Euretta Gilpin, wife of William H. Gilpin, formerly Euretta Williams, is the daughter of Thomas Williams, *de•ceased, the testator, the construction of whose will is the subject of this controversy.

The defendants are Francis B. Williams, a son; the legal representative of William Williams, deceased, another son; the legal representative of Mary Ashburn, deceased, a daughter; Rebecca Rusk, another daughter, her husband and children; Susan Elston, .another daughter, and her children; Catharine M. Cook, another daughter, her husband and children, who are devisees under the will; and the heirs and legal representatives of Isaac G. Burnet, ^deceased, the surviving executor and trustee named in the will.

Thomas Williams, the testator, made and published his last will on March 6,1831, which was duly proved at the' February term (April 15), 1833, of the court of common pleas for Hamilton county.

The material portion of his will, the construction of which is involved in this suit, is as follows:

“4. To my friend, Isaac G-. Burnet, and my son William Williams, and to the survivors of them, I will and bequeath all the real estate of which I may die possessed, in trust for the uses and purposes herein specified: 1. That for the term of fifteen years, from the first day of June, eighteen hundred and thirty-one, the said Isaac G-. Burnet and William Williams, or the survivor of them, shall receive all the rents and profits of said real estate, and after payment of the proper rates of insurance and the assessed taxes and necessary repairs, the remainder shall be distributed as received, one-third to my wife Mary, and the other two-thirds to my eight children in equal proportion, as heirs at law; and if, by any casualty, the house on Main street should be consumed by fire, I authorize and empower the said Isaac G-. Burnet and William Williams, or the survivor of them, to cause a house to be again erected on the ground, and to mortgage the lot and the rents of the building after it is erected, to< raise funds for that purpose. • 2. After the expiration of the said term of fifteen years, the said Isaac G-. Burnet and William Williams, or the survivor of them, shall, surrender up the control of all my real estate, and release the title hereby vested in them, as herein directed, to wit: To my son * William Williams, his heirs and assigns forever, one undivided eighth part j to my son Thomas Williams, his heirs and assigns forever, one undivided eighth part; to my son Francis Burdett Williams, his heirs and assigns, forever, one undivided eighth part; to my daughter Mary Ashburn, during her natural life, and to her children after her death forever, an undivided eighth part; to my daughter Rebecca Rusk, during her natural life, and to her children after her death forever, one undivided eighth part; to my daughter Susan Elston, during her natural life, and to her children after her death forever, one undivided eighth part; to my daughter Catharine Mason Williams, during her natural life, and to her children after her death forever, one undivided eighth part; and to my daughter Euretta Williams, during her natural life, and to her children after her death forever, one undivided eighth part; and if my wife Mary be in life at the expiration of the aforesaid term of fifteen years, the-bequest and division, as herein above provided for, are to take effect subject to her right of dower, in the same manner as if this will had never been made; and if any one of the before-named deviseesshould decease before the expiration of the said fifteen years without children, the distribution of such deceased devisees then shall be made to the surviving devisees.”

Thomas Williams, one of the sons and devisees, died, without-children, before the decease of the testator, in the year 1831.

William Williams, one of the trustees and devisees, died, leaving children, prior to the expiration of the said term of fifteen years.

Isaac G-. Burnet, surviving trustee, about June 18, 1846, the said term of fifteen years having expired, executed a deed to the plaintiff, Euretta Gilpin, she being then married, in which, reciting the provisions of the will, he surrendered, remised, and released to her during her natural life, and to her children after her death, and their heirs and assigns forever, an undivided seventh part of the real estate accrued to him by virtue of said will, to have and to hold to *the said Euretta during her natural life, and to her children after her death, their-heirs and assigns forever.

At the time of the execution of the will, two of the testator’s daughters, Catharine Mason Williams, afterward Cook, and Euretta Williams, the plaintiff, were unmarried. Both have since married. Mrs. Cook has children, who are made defendants. Mrs. Gilpin has never had any. Francis B. Williams was the youngest child of the testator, and on or about the 15th of June, 1831, was six years of age.

The real property which the testator possessed when he made his will consisted of a tract of land in Colerain township, about five miles from Cincinnati, of 166 12-100 acres; another tract on Walnut Hills, Mill creek township, near Cincinnati, of 135 acres 2 roods; an out-lot in the city of Cincinnati, No. 40, lying between Twelfth and Thirteenth streets and Race and Yine streets, which was subdivided in the partition; a lot on Walnut and Columbia streets, 91 feet 10 inches on Walnut, and a lot on Main and Columbia streets, about 76 feet on Main and 150 feet on Columbia. Of the land in Colerain township, a part was cleared for cultivation and a part woodland. There was wood on the tract on Walnut Hills, but its chief value was on account of its proximity to the city, and its capability of being used for country or suburban residences and truck or vegetable gardens. There were no buildings of much value on either tract. The out-lot was unimproved. There were moderate improvements on the other city lots, yielding a rental.

After the expiration of the term of fifteen years, prescribed in the will, and the execution of the deed by Burnet, as surviving trustee, a partition was had among the devisees, by judicial proceeding instituted to that effect, by which one-seventh of the testator’s real •estate was allotted to Euretta Williams.

The plaintiffs, in their petition, charge and claim that the circumstances under which said will was made, and the character of the real estate, all which is set out above, in connection with the provisions in said will, show that the testator intended to dispose of all his property, and to die intestate as to ño part thereof or any interest therein; that in the ^direction to convey to each of his •daughters and secure a provision for her children, he intended that each daughter should have her equal share of his estate, subject ■only to the reservation out of it for her children, and contemplated that this intention should bo effectuated by a proper deed of settlement to be made by the trustees. The plaintiffs, therefore, insist that they are entitled to require from the heirs of the surviving trustee, or from a trustee to be appointed by the court, a |>roper conveyance of the interest of the said Euretta in the estate of her father, by convoying the same to the said Euretta for life, with contingent remainder in fee to her children, and in the event she should have no children, to Euretta in fee.

The claim'of the plaintiffs is based upon two propositions:

1. That the trust declared by the will, in respect to the property Revised to the trustees, is an executory trust, which, for the purpose -of effecting the intentions of the testator, requires from the trustees .a conveyance of the property, to the beneficiaries, in other terms than those used in the will itself.

2. That the terms to be supplied must be such as will secure to Euretta Gilpin, in the event of her having no children, the fee simple of the property.

In the argument of the case, counsel have expended a large amount of learning and industry in the discussion of the question, whether the trusts created by this will are executory or executed.

An executory trust is thus defined in 2 Jarman on Wills, 253*: “A trust is said to be executory or directory where the objects take, not immediately under it, but by means of some further act to be •done by a third person, usually him in whom the legal estate is vested. As where a testator devises real estate to trustees in trust to convey it to certain uses. In these cases the direction to'convey •or settle is considered merely in the nature of instructions or heads of a settlement, which are to be executed, not by a literal adherence to the terms of the will, which would render the direction to settle nugatory, but by formal limitations adapted to give ^effect to the purposes which the author of the trust appears to have had in view.”

And the rule seems to be the same in the United States. Adams’ Eq. 40*, n. 2.

Lord Eldon, in Jervoise v. The Duke of Northumberland, 1 Jac. & W. 539, states the law to be, that in those cases of executory trusts, where the meaning of the party who declares the trust is imperfectly expressed, courts of equity take upon themselves so to modify the words as to carry into effect that which, upon the whole, appears to be the meaning of the party, although imperfectly expressed.

“ The trust created by this will,” said Sir L. Shadwell, V. Ch., in Stonor v. Curwen, 5 Sim. 264, “ is clearly an executory trust, and an executory trust as to which nobody can say that the words which the party who has created the trust has used are so clear as -at once to show what sort of conveyance he meant. And although I apprehend the law to be, that whether the trust be executed or executory, the same construction must be put on the words, yet that means only in those cases where the words which declare the executory trust are so clear in themselves as to point out what the 'trust is to be.”

An excellent illustration of a case of executory trust, in which, a court of inquiry will depart from the particular language of a testator in order to effectuate his clearly expressed and controlling intention, is afforded by the case of the City of Zanesville v. McIntire’s Adm’rs et al., decided at the present term.

“ Where directions are given for the execution of some future conveyance or settlement of trust property, but the particular limitations are not fully or accurately specified, this is an executory trust; and in carrying such a trust into execution, regard must be •had to the general intention rather than to the technical import of any particular expressions used.” Hill on Trustees, 328*. But the same author adds: “However, in executory trusts created by will, all parties claim equally as volunteers under the bounty of the testator. In these cases, therefore, the words of 'the will receive their *full legal effect, unless it appear from the will itself, that the testator's real meaning would he frustrated by a strict execution of his directions.” lb. 329*.

Now, in the view which we take, and with the understanding which we have, of the language of the testator in the will which we are called upon to construe, and guided by the general principles above laid down — the correctness of which is, on all hands, conceded — we do not find ourselves obliged to discuss or to determine the question so laboriously argued by counsel, whether the-trusts created by this will are, or are not, executory; for, be that as it may, these are “trusts created by will; all parties claim equally as volunteers under the bounty of the testator;” the “ words of the will,” therefore, “receive their full legal effect;” and, in our opinion, it does not appear from the will itself, that the testator’s real meaning would be frustrated by a strict execution of his directions.” Those directions have been strictly executed as respects the plaintiff Euretta, in the conveyance made to her by the surviving trustee ; and we are unable to find in the words of the will, with such aid as the light reflected from surrounding circumstances affords, any satisfactory indications of an intention to vest a reversionary estate in fee simple in his daughters in any event, or on any contingency whatever, but rather significant indications to the contrary. And if we are right in our conclusions in this respect, it follows that the plaintiffs can not be aided in any way by this court. We can not make for the testator a will which, for whatever cause, he himself did not make. And we arrive at these conclusions from the following considerations :

1. The language of this will is the language, not of ignorance, but of intelligence — of legal intelligence. So far as the testator has gone, in the expression of his purpose and desire in respect to the disposition of his estate, his words are apt, direct, and clear; and in the absence of countervailing considerations, this gives rise to the reasonable presumption that he meant what he said, and no more.

2. It is certain that the testator, in the final disposition of his real estate, after the lapse of the first fifteen years limited by him, did make, and did intend to make, a difference between *his sons and his daughters. He gives, in unequivocal words, to each of his sons an equal share absolutely in fee; and in words equally unequivocal, he gives to each of his daughters a life estate only in a like share, with remainder over to their children, if any.

Grant that this was making an unreasonable difference. He had a right to give to whom he pleased, and with such limitations and on such terms as he pleased, provided the gift did not contravene good morals or public policy. But I am unable to see anything that can properly be characterized as unreasonable, and much less anything unnatural, in the limitations he has imposed on his gifts to his daughters. It is certainly possible that his failure to provide in express terms for the contingency of his daughters having no issue, may have been the result of oversight, and, if this be so, it can make no difference in the case; for we do not know, and are not at liberty to act on mere conjecture, as to what he would have done with the contingent reversion, in case the possible contingency on which the reversion depends had occurred to his mind. But I think it is quite as probable — and even more so, considering the degree of intelligence in the testator or his scrivener which the will manifests — that the omission to expressly provide for the contingency mentioned, was the result of design. "What motives influenced the formation of such design wc may only conjecture, with a view to show that they may have been neither unreasonable nor unnatural. It may have been that he was distrustful in respect to the possible character of his sons-in-law, or that he feared that the weakness of his daughters might subject them to influences which would lead to such a disposition of their patrimony as he could not anticipate with approval; or more likely still, as I think, he may have known, as matter of law, that if his daughters had no issue, their shares, after the termination of their life estates therein, would revert to his own heirs general, and thence his bounty would descend along with the current of his own blood; and so he would have no occasion to make express provision for the contingency named, and one of the'most natural and most .commonly operative of human motives would be gratified.

*We thus arrive at the conclusion, that, as to the possible contingent reversion, on the death of the plaintiff Euretta without having had issue, the plaintiff died intestate; and it is urged against this conclusion, that “ it is a settled rule of construction, •that a testator is never presumed to intend to die intestate, as to any part of his estate to which his attention seems to have been directed, and a court of equity will put such a construction upon equivocal words as to prevent such a result.” Collier v. Collier, 3 Ohio St. 373. But this rule can have no application where there are no equivocal words to be construed; and this, it seems to us, is such a case.

Again, it is urged in behalf of the plaintiffs, that the testator, in the first place, devises an entire fee-simple estate to his trustees in trust; and yet, if the trustees make no other or further conveyance to the plaintiff Euretta than they have made, and in case she shall die without having issue, then there will still remain in the trustees a reversionary interest undisposed of by the will; and hence, it is argued that the testator intended to dispose by will of his entire estate in every possible contingency. But to this it is, we think, well answered, that it is a general rule of law, that “where real estate is devised to trustees, though with words of inheritance, prima facie, the trustees take only so much of the legal estate as the purposes of the trust require ” (Hawkins on the Construction of Wills, 143, 144, and cases there cited) ; and that, at the time this will took effect, there was no statutory provision affecting the operation of this rule.

The petition will be dismissed.

Day, C. J., and White, Welch, and Scott, JJ., concurred. 
      
       Ante, 352.
     