
    James Baxter, Administrator with the will annexed of David W. Baxter, deceased, v. James Bowyer and others.
    1. Conflicting provisions in a wiU should be reconciled so as to conform to the manifest general intent, and it is only in cases where such provisions are wholly and absolutely repugnant that either of them should he rejected.
    2. Where, by one clause in a will, property is devised or bequeathed, by words primó facie importing an absolute estate, and by a subsequent clause is given in remainder to another person, the first devisee or legatee takes only a life estate, and the limitation over is valid.
    3. The will of David W. Baxter contained the following provisions:
    “ Item 1. — I give and devise all my property to my beloved wife, Deborah Baxter, both real and personal, of every description, with full power to collect, by law or otherwise, all debts due me, and to adjust and pay all expenses resulting from my last sickness and demise, and all other just claims whatsoever. I also expressly desire that she shall have unlimited power in the possession of all property, real and personal, thus bequeathed to her; to sell at public or private sale, on such terms as she may think best, or use in any manner as she may deem proper, any or all of the property, real or personal; and deeds to purchasers to execute, acknowledge, and deliver in fee-simple.
    “ Item 2. —-I do hereby devise that, at the death of my beloved wife, the sum of two hundred dollars be placed in the hands of the Treasurer of 1 Union Cemetery ’ as a perpetual fund, to he by him placed at interest, the interest to be annually collected and expended in taking care of our graves.
    “Item 3. —I do hereby devise and bequeath, at the death of my beloved wife, after all expenses resulting from her last sickness and demise, and expenses of tombstones and item second shall have been adjusted, al] the property then remaining to the Presbytery of Cincinnati; said principal to be placed by the said Presbytery in a fund where it will be permanent, and the interest thereof to be annually collected and equally divided between the Boards of Foreign and Domestic Missions.”
    
      Held: That under this will the wife took only a life estate, and life support, with power of sale for the benefit of the estate, and that the remainder goes to the parties and uses specified in the last two items.
    4. Where the provision in a will for the widow includes the dower, it is equivalent to a provision in addition to dower, and she holds the dower right free from the claims of creditors of the estate.
    5. In such ease, if the widow actually accepts the provision, and then dies without making her statutory election in court, and without being cited to appear in court for that purpose, she will be held to have taken under the will, and her representatives will be entitled to no part of the personal estate, except what is given her by the will.
    Appeal. Reserved in the district court of Warren county.
    David W. Baxter, who died in July, 1865, by his last will provided as follows:
    
      “Item 1.— I give and devise all my property to my beloved wife, Deborah Baxter, both real and personal, of every description, with full power to collect, by law or otherwise, all debts due me, and to adjust and pay all expenses resulting from my last sickness and demise, and all other just claims whatsoever. I also expressly desire that she shall have unlimited power in the possession of all property, real and personal, thus bequeathed to her; to sell, at public or private sale, on such terms as she may think best, or use in any manner she may deem proper, any or all of the property, real or personal; and deeds to purchasers to execute, acknowledge, and deliver in fee-simple.
    “ Item 2.— I do hereby devise, that, at the death of my beloved wife, the sum of two hundred dollars be placed in the hands of the Treasurer of ‘ Union Cemetery as a perpetual fund, to be by him placed at interest, the interest to be annually collected and expended in taking care of our graves.
    
      “ Item 3. — I do hereby devise and bequeath, at the death of my beloved wife, after all expenses resulting from her last sickness and demise, and expenses of tombstones and item second shall have been adjusted, all the property then remaining to the presbytery of Cincinnati; said principal to be placed by the said presbytery in a fund where it will be permanent, and the interest thereof to be annually collected and equally divided between the Boards of Foreign and Domestic Missions. ”
    The testator’s wife survived him, and took possession of the property, which consisted of some ten thousand dollars’ worth of real estate, and personal property to the amount of twenty-five hundred dollars. She possessed and used the entire property during her life, and died in less than one year after the decease of her husband, without making any election in court to take under the will, and without being cited to appear in court for that purpose.
    Neither the testator nor the widow left any children, but she left brothers and sisters, who are her heirs-at-law.
    The present action is brought by the administrator of David W. Baxter, against the administrator and heirs of the widow, and the Presbytery of Cincinnati and other beneficiaries named in items 2 and 3, for the purpose of obtaining a construction of the will, and directions from the court regarding the manner of its execution.
    On behalf of the administrator and heirs of the widow, it is claimed that by the provisions of the first item of the will she took an absolute fee, both in the real and personal estate, and that the devises over are void for uncertainty and repugnancy..
    On the part of the Presbytery of Cincinnati it is claimed that these devises are valid and effectual, (1) because by the terms of the will the widow only took a life estate; and (2), because, admitting she took a fee, she lost it by her failure to elect, and was therefore remitted to her right of dower, and to such portion of the personal estate as would have fallen to her in case her husband had died intestate.
    
      J. M. and J. E. Smith for plaintiff:
    1. We would not undertake to deny, if Item 1st of the will was the only one which related to the disposition of this estate, that under it Mrs. Baxter would have taken all the property of her husband absolutely! But such is not the case. Both Items 2 and 3, so far as they are operative, limit the interest before given to the widow to a life estate, and direct what shall be done with the estate on the death of Mrs. Baxter. See King v. Beck, 15 Ohio, 561; Thompson v. Thompson, 4 Ohio St. 351; Thompson v. Hoop, 6 Ohio St. 487; Brasher v. Marsh, 15 Ohio St. 108; Redfield on Wills, vol. 1, 431 et seq.
    
    If, then, on a fair interpretation of this will, it appears that the intention of Mr. Baxter was to give his wife but a life estate in his property, and that on her death it should pass to the other devisees, it would seem clear, on authority, that this intention must be carried out by the court, unless it contravenes some other principle of law.
    2. To the argument of counsel for defendants, that the bequest first made to her was of the whole estate absolutely, and that there was nothing left to go to the other legatees ; that it is contrary to the settled principles of law to allow a limitation over on a fee-simple estate, etc, — we reply: while denying, as we have already done, that there was, taking the whole will together, the gift of a fee-simple estate to the widow, we claim that the authorities relied upon by opposing counsel do not sustain their positions. In each of the cases referred to in their brief, it will be seen, on examination, that an absolute estate and jiower of disposition was given to the first taker, and for his use. And as nothing of the kind appears in the Baxter will, as we claim, the cases above examined are not in point in this. The doctrine of these cases, as it is stated by Judge Redfield in his work on Wills, vol. 1, page 676, sec. 19,hath this extent only: “That where personal estate (or real) is given absolutely to one with no limitation or restriction upon his title, a subsequent bequest of so much as the legatee should be possessed of at the time of his death, without leaving issue, is void, as being repugnant to the first bequest.” Surely the rule ought not, at this day, be made more stringent than this.
    ' 3. But whatever may have formerly been the decisions of our courts, or those in England, on questions of this charac- - ter, we think the tendency of courts in both countries, in later times, is towards a more sensible and rational doctrine; and that is, to favor the manifest intention of testators, and to be exceedingly averse to finding such a total repugnancy to exist between the devise to the first taker, and the limitation over, as to render the latter void. 1 Redfield, p. 444, and post, sec. 1 and note 3; sec. 2 and note 6; secs. 9, 13, 16, and 17, and note 36; also p. 679, secs. 20, 21, and 23; Sherrall v. Bentley, 2 Mylne and Keen, 149; Doe ex dem. Stevenson v. Glover, 50 E. C. L. 447; Hatfield v. Snyder, 22 Barb. 615; Howe v. Fuller, 19 Ohio, 51; Bishop v. Remple, 11 Ohio St. 277; Niles v. Gray et al., 12 Ohio St. 320; Pruden v. Pruden. 14 Ohio St. 251; Smith v. Bell, 6 Peters, 68; 20 Ohio, 483,
    4. As to the non-election of the widow : "We claim that Mrs. Baxter having died within the time limited by law for the making of her election, and without having made the same in the legal mode, the devise for her benefit never took effect; and that at the death of her husband, by operation of law, her right of dower in his estate became vested; that the same not having been subsequently barred by her own act, at her death her estate in the lands of her husband ceased and determined, and consequently that only her distributive share of her husband’s personal estate passed to her heirs-at-law, the defendants in this case. The nature of this electing act, the circumstances under which it is to be done, and the legal effect bf it, are specifically set forth in sections 43, 44, 45, and 46 of the Statute of Wills. See Davis et al. v. Davis, 11 Ohio St. 386; Smith v. Smith, 20 Verm. 270; Stilley v. Folger et al., 14 Ohio, 610; Delay v. Vinal, 1 Metc. 57; Pratt v. Felton, 4 Cushing, 174; Merril v. Emery, 10 Pick. 507; Boone's Representatives v. Boone, 3 Harris & McHenry, 95; Welch et al. v. Anderson, 20 Misso. 293.
    Looking, then, at this case in the different aspects in which it has been presented on either side, it would seem that there are three views, one of which must be adopted as the true one.
    1. If the construction of the will, as claimed by the counsel for the heirs of Mrs. Baxter, be the correct one, viz.: that the devise to the widow was of an absolute estate, and the limitation over void, and, in addition to this, that no election was necessary under our law to give to her the estate devised, instead of her dower and rights by law; then, of course, the whole estate, on her death, passed to her brothers and sisters. But all of these propositions must be true, or the result will not follow; failure on either is fatal to their claim.
    2. If the widow took but a life estate in the property of her husband, by the will, and no formal election was necessary on her part for the acceptance of the devise; then clearly, at her death, the whole estate would pass as provided in Items 2 and 3 of the will, and the heirs of Mrs. Baxter would receive nothing.
    3. If Mrs. Baxter took under the will a life estate, or an estate with power of sale, if she chose to exercise it, and the limitation over is good; and, by our law, an election is necessary before a widow can be barred of her dower or distributive share of a husband’s estate — then, as she did not, in fact, make such election, on her death her heirs are entitled tc such share of the personal estate left by D. "W. Baxter, as his widow, on distribution, would have been entitled to had he died intestate and without children, viz.: the one-half of the first $400, and the one-third of the residue.
    This last view is the one adopted by us at the time of the filing of the petition for the construction of this will, and subsequent examination has but strengthened the opinion of its correctness.
    
      Matson <& Paxton and Caldwell de Coppoch for defendants :
    By the terms of the will, the devisee, Deborah Baxter, wife of the testator, took an estate in fee-simple. The limitation over to the Missions, as claimed by the plaintiff, is void, being inconsistent with the former estate granted to Mrs. Baxter. To admit that a remainder could be limited, on such a title as Mrs. Baxter takes under this will, would certainly confound all our ideas of ownership of property. We refer to a number of decisions, in which all that we contend for has been definitely settled in our favor. It will be found that in all cases wherever the right of absolute disposal of property is given, the fee passes, and no remainder can be .limited on such estate. It will be seen, too, that it is a matter of no importance whether the party thus taking the property has disposed of it or not. The title is complete on the taking effect of the will. The Attorney-General, etc. v. Hall, Fitzgibbon, 314; Goodtitle ex dem. Pearson v. Otway, 2 Wilson's Rep. 6; 4 Kent's Com. 270; Ide v. Ide, 5 Mass. 500; Jackson ex dem. Brewster v. Bull, 10 Johns. 19; Pells v. Brown, Cro. Jac. 590; 1 Salk. 299; Powell, 1; Jackson ex dem. Bush v. Coleman, 2 Johns. 392; Jackson v. Robbins, 16 Johns. 537; Ramsdell et al. v. Ramsdell, 8 Shipley (Maine), 288.
    It is true that, as a general rule, the intention of the testator is to prevail. This, however, is always subject to that other inflexible rule, that such intention must be consistent with the'primdiples of law and the established rules of property. In making a will a man does not become a lawgiver; his intention cannot contravene the laws and policy of the government. This principle is well expressed in the case of Patterson v. Ellis, 11 Wendell, 260. See also King v. Ackerman, 2 Black, 408.
    2. As to the election of the widow:
    This is not a case where any election was necessary; it is not one of the cases contemplated by the statute. Here the whole property is given — the whole, with all its parts, vests on the- death of the testator. The widow is endowed of the lands of her husband; she has no dower in her own lands.
    But if we should admit that this was one of the instances where the statute required an election, still the case would be equally clear in our favor. The widow did not live through the year in which she was required to elect; she died a few months after the death of her husband. She had possession of all the property (except such parts of the personal property as she had disposed of), treating it as her own.
    The cases are numerous in which the- courts have had before them the question: “ What are the rights of the widow when she has died before the expiration of the time in which she was required to elect and has made no election ? ” This question has always been decided the same way, that the widow will be presumed to have elected to take what would be most beneficial to her. If the provision in the will was of greater value than the dower, she has been presumed to have elected to take it. It has also been held, that the provision in the will vests on the taking effect of the will, without reference to the election. Hastings v. Clifford, 32 Maine, 132; Thompson v. McGee, 1 Metc. 66; Merrill v. Emery, 10 Pick. 507; Pratt v. Felton, 4 Cushing, 174; Vaughan v. Vaughan, 30 Ala. 329; Lessee of Thompson v Hoop, 6 Ohio St. 485.
   Welch, J.

The first question involved is, whether, by the terms of the will, the wife took an absolute estate in fee, or only a life interest. The language of the first item, construed by itself, would undoubtedly give her a fee. But the whole will must be construed together;. and in the light of the whole will, and of the surrounding circumstances, each clause is to receive its interpretation. It is only in cases of total and irreconcilable repugnancy, that any of the provisions of a will can be rejected. It is claimed that there is such a repugnancy here, and that the two last items of this will must be stricken out, leaving the first item to stand alone as the testator’s will. Having disposed of the whole estate absolutely by the first item, the other two items, it is said, are a mere attempt to do what the law will not permit, to engraft a remainder upon a fee-simple estate.

It is true that a remainder cannot be engrafted upon a fee. The true reason of this rule, however, is not because the law will not permit it, but because the thing is impossible. I cannot give the whole of my estate to one, and part of it to another. I cannot give the absolute fee to my wife, and the remainder to the church, for the same reason that I cannot give a square circle, or give nothing, because it involves an. absurdity. But before this rule can be applied, it must first be well ascertained that the will in question does, when construed fairly, and in the light of all its provisions and sur roundings, give an estate in fee. Whether this will does so, is the very question here.

The testator’s intention is the polar star in the construction ■of a will. It is quite evident on the face of this will, and in view of the fact that neither the testator nor his wife had .any children, that he intended his property should go to her .and the presbytery, to the exclusion of all others. By the .■last two items he undertakes to dispose of the entire estate in remainder. He gives, unconditionally and absolutely, .$200 for tombstones, and a sum sufficient to defray the •expenses of the wife’s last sickness and death; and then provides that, when these two things have been adjusted, “ all •the property then remaining” shall go to the presbytery. When remaining ? Why, remaining after the deduction of •these two sums. In other words, all the estate, except these two sums, and the widow’s life interest, shall go to the presbytery. These last two items constitute a very important part of the will, and are not to be rejected if they can at all -be reconciled with the provisions in the first item. To reject hem m toto would be doing much greater violence to thp language of the will than would be done by holding that the testator intended by the provisions of the first item to give a life estate only. What are the provisions of the first item % They are simply these: He gives his “ property ” to his wife, with the unrestricted right to “possess ” and “use” it, and with .a power of “sale” to be exercised publicly or privately. The provisions as to the “possession” and “use” of the property .add nothing to the word property, and certainly do not import •an absolute estate. Indeed, their introduction at all, after .the clause devising the “ property,” would seem to negative the idea that the testator supposed he had already vested the property absolutely in his wife. If he supposed he had .already made her the absolute owner, why make cmy provision as to her manner of usvng or possessing it. She would, as a matter of course, use and possess her own property as she pleased. The same may be said of the power to sdl. The absolute owner of property can sell it when and where he pleases. But the tenant for life cannot sell without a power granted for that purpose. When so granted, prima, facie, it is in the nature of an executorial power, or power to change the property into money for the benefit of the estate, or for its better enjoyment. That such is the nature of the power intended here, is also to be argued from the fact that a similar power is given to the wife to collect and pay the debts of the estate. The only thing, therefore, in the first item, which is actually, or even apparently, repugnant to the limitation over, is this word “property.” The testator gives to his wife all his “ property.” If he had added the words “for life” after the word property, all parts of the will would harmonize, and nothing need be rejected. But any equivalent words will surely answer the same purpose ; and words fully equivalent are found in the provisions of items two and three. Read together, the two apparently conflicting provisions would stand thus: “I give all my property to my wife, with remainder in fee at her death to the presbytery of Cincinnati.” Such is substantially the language of the will construed in Smith v. Bull, 6 Peters, 68. Indeed the language there was more repugnant than here. The language there was, “I give to my wife Elizabeth Goodwin all my personal estate ... to and for her own use and benefit, and disposal absolutely; the remainder of said estate, after her decease, to be for the use of said Jesse Goodwin.” And yet the court held, Chief-Justice Marshall delivering the opinion, that .the wife took only a life estate, and that the limitation over was effectual. Substantially to the same effect are many other eases, both English and American. Most of the authorities cited by .counsel, where an apparently contrary doctrine has been held, are distinguishable from the present case by a single peculiarity. In most of them the subject-matter of the limitation over was, not the remainder of the estate, but such part of the estate as the first devisee or legatee chose to learn. Thus, in the leading ease of Att'y-Gen. v. Hall, Fitzgibbon, 314, the subject-matter of the limitation over was, “so much as he should be possessed of at his death.” In Ide v. Ide, 5 Mass. 500, it was “ the estate he shall lerneP In Jackson v. Bull, 10 J. R., it was “ the property he died possessed of.” In Jackson v. Robbins, 16 J. R., 537, it was “such estate as should remain unsold, umdevised, or unbequeathed.” These and the like cases are clearly distinguishable from the present one. They are cases where the testator gives to the first devisee full dominion and control over the estate, and then, under Ike form of a limitation over, undertakes to make, as it were, a will for the first devisee, to take effect in case the first' devisee should fail to make one for himself, or otherwise to dispose of the property. This the testator cannot do. Every one has the right to dispose of his own property. To make one the absolute owner of my property, and at the same time retain any power in my own hands to control or dispose of it, is simply impossible. In the cases referred to, where the limitation was held to be void, the repugnancy was total and irreconcilable. The language of the will left no escape, in those cases, from the conclusion, that the testator intended to give the first devisee absolute dominion and control over the property. There was no escape, because the bimitation itself, as well as the previous devise, necessarily implied such absolute power and dominion, by making the thing limited over, its existence or non-existence, to depend upon the pleasure of the first devisee. Such a limitation cannot be sustained, because it is only a limitation in words, and not a limitation in fact, or in law. It is in legal effect what the will here would be if it had read: “ I give all my property to my wife, and she may give to the presbytery of Cincinnati such part of it as she chooses to give.” Such is not the legal meaning and effect of the will under consideration. It simply gives the property to the wife, with remainder at her decease to the uses specified in items two and three. A,majority of the court are satisfied -that these provisions are not necessarily repugnant, but are reconcilable upon the theory that the wife took a life estate and life maintenance, with an unrestricted right as to the manner of enjoying the property, and with power to change the property into money, by sale, for the benefit of the estate; and that the limitations expectant upon her death are, therefore, valid and effectual.

It being determined that the widow took only a life estate,, the question as to the effect of her non-election becomes comparatively unimportant to the present case. The argument of plaintiff’s counsel is, that even if she took a fee by the terms of the will, she lost it by her non-election, and the whole estate at her death passed to the parties in remainder. Tin's argument is clearly fallacious. If the wife took the whole estate, she took it because the limitation over was a nullity. If the will gives her the whole estate, it gives nothing to the presbytery; and if she, being offered by the will the whole estate, refuses to take it, then it goes to the testator’s heirs, and not to the uses specified in items 2 and 3. The widow would, in that event, moreover, be liable to the testator’s estate for the rents of the real estate, less the dower interest, and for the personal effects she has consumed, less such portion thereof as she would have been entitled to in case of intestacy. This argument, it seems to me, if carried to its results, would work mischief, instead of benefit, to the parties claiming in remainder, whether we hold that the wife took a fee, or a life estate. In the former case, the parties claiming in remainder would take nothing. In the latter case, the widow would take a portion of the personal estate, which would go in remainder in case she takes under the will. We are unanimous, however, in the opinion that, under the circumstances of this case, the widow must be held to take under the will, and that, therefore, her representatives are entitled to no part of the personal estate. The circumstances I allude to are these: 1st. The provision made for her by the will meludes her dower, and is, therefore, tantamount to a provision in addition to dower, and entitles her to hold the dower interest freed from the claims of the testator’s creditors. 2d. She in fact accepted and enjoyed the provision, although she never made the statutory election in court. 3d. She was never cited to appear in court, and died within the time allowed by law for that purpose. What would be our holding as to the effect of the widow’s non-election, in a case where either or any of these circumstances should be wanting, we do not at present undertake to say.

A decree can, therefore, be taken upon the principles indicated, to wit: that the widow took a life estate and maintenance in both* the real and personal property, with remainder over for the purposes and uses specified in items 2 and 3 of the will. *

Decree accordingly.

Brinkerhoff, O.J., and Day, J., concurred.

Scott and White, JJ., dissent from the construction given to the will in proposition 3 of the syllabus.  