
    Collins v. Collins.
    A testator, by his last will, gave and devised to his wife, during her natural life in lieu of her dower, the farm on which they then resided; and provided, that all the household goods of which he might be in possession at the time of his decease should remain in possession of his widow during her lifetime. He then gave and devised as follows: “ At the death of my said wife, the real estate aforesaid, and such part of my household goods as may then remain unconsumed and unexpended, I give and devise to my two sons, Silas and William Collins, and their heirs. If, however, either of my said two sons should die, leaving no children at their decease, then the share of said property above devised to such deceased son, is to go into the possession of the surviving son. If, in case both of my two sons, Silas and William Collins, should'die leaving no heirs, then the property above described to be equally divided among my heirs.” — Held:
    1. That by the will of their father, Silas and William each took a vested remainder in fee simple in one undivided half of the lands, defeasible \ipon tlie contingency of the death of either, leaving no children at his decease, and leaving the other brother to survive him.
    2. That upon the death of Silas, leaving children at his decease, and William, his brother to survive him, the vested estate in fee simple of William in one undivided half of the lands, was no longer subject to be divested by the contingency expressed in the will.
    Appeal. Reserved in the District Court of Noble County.
    The original action was commenced in the court of common pleas of Noble county, by William Collins, against John Collins and others, to obtain a construction of the will of Finley Collins deceased, and to ascertain the interest which the plaintiff takes under that will. The action was appealed to the district court and by the district court reserved to this court. Finley Collins died on or about the 13th day of October, 1854. On the 29th day of September, 1854, he executed his'last will and testament in words and figures following, to wit:
    “In the name of the Benevolent Father of all, I, Finley Collins, of Brookfield township, Noble county, Ohio, do make and publish this, my last will and testament.
    “ Item First. I give and devise to my beloved wife in lieu of her dower, the farm on which we now reside, situate in Brookfield township, Noble county, Ohio, and also seventy-seven acres, more or less, situate in Spencer township, Guernsey county, Ohio, in all, three hundred and sixty (360) acres, more or less, during her natural life time; and all the household goods that I am in possession of at my decease áre to remain in the possession of my widow during her life time. At the death of my said wife, the real estate aforesaid, and such part of my household goods as may then remain unconsumed and unexpended, I give and devise to my two sons, Silas and William Collins, and their heirs. If however, either of my said two sons should die, leaving no children at their decease, then the share of said property above devised to such deceased son, is to go into the possession of the surviving son. If, in case both of my two sons, Silas and William Collins, should die leaving no heirs, then the property above described to be equally divided among my heirs.
    “ Item Second. I devise and bequeath to my son, John Collins, five dollars; to my son, Michael Collins, five dollars; to my son, Ira Collins, ten dollars, to my son, Jacob Collins, five dollars.
    
      '■'•Item Third. I devise and bequeath to my daughter, Sarah Smith, five hundred dollars; and to my daughter, Hannah Johnson, five hundred dollars; and to my daughter, Mariah Barnes, five hundred dollars; and to my daughter, Margaret Spencer, five hundred dollars; and to my granddaughter, Mariah Jane Nickerson, two hundred and fifty dollars; and to my grandson, Wm. Finley Nicker-son, two hundred and fifty dollars.
    “Foregoing named sums to be paid in the manner following, viz.:
    “ My sons, John, Ira, Michael and Jacob, to be paid at my decease; my daughter, Sarah Smith, to be paid in one year from my decease; my daughter, Hannah Johnson, to be paid in two years from my decease; my daughter, Mariah Barnes, ;to be paid in three years from my decease; my daughter, Margaret Spencer, to be paid in four years from my decease; and my two grandchildren, Mariah Jane and William Finley Nickerson, in five years from my decease.
    “ Item Fourth. I also devise and bequeath to my daughter, Mariah Barnes, and her heirs, the house and lot, with all the appurtenances belonging thereto, in the town of Cumberland, Guernsey county, Ohio, known as the stone ■touse, in which the said Barnes now lives.
    
      “Item Fifth. I devise and bequeath to my two sons, Silas and William Collins, all my stock of every kind, with all the farming utensils of every description that I may be in possession of at the time of my decease.
    “ In testimony whereof, I have hereunto set my hand and seal, this twentieth day of September, 1854.”
    The will was duly admitted to probate, and now remains of record in the probate court of Noble county.
    
      Besides his widow, Margaret Collins, who died about the 1st day of September, 1862, Finley Collins left sundry heirs at law, who are named as defendants in the action.
    The plaintiff, an heir at law of Finley Collins, is the William Collins named in said will. His brother Silas Collins, also named in said will, died on or about the 28th day of December, 1864, intestate, leaving to survive him, his widow, and Edward W. Collins, aged twenty years, and Finley S. Collins, aged eighteen years, his only children and heirs at law, who are named as defendants in the action.
    On the 28th day of June, 1865, the plaintiff filed in the court of common pleas of Noble county, a petition, in which he demanded partition of the lands and tenements referred to in said will, as the premises on which the said testator resided, situated in said county of Noble, and, in said case, caused the said Edward W. Collins and Finley S. Collins to be made parties defendant; and such proceedings were afterwards had in that ease, that a part of said lands and tenements was duly and regularly set off to the plaintiff for his interest therein, to wit: One hundred and twenty-six acres thereof, more or less, which said partition was duly confirmed in said court, and the plaintiff was put in possession of the premises set off to him.
    The plaintiff, William Collins, claims, that he is the owner, in fee simple, of the said lands and tenements so set off to him, while the other heirs of Finley Collins insist, that the interest of William is only a life estate.
    John E. Planna and Belford & Obey, named as defendants in the action, come in by answer and cross-petition, in which they set up judgments against the plaintiff, and also assert, that by reason of the cloud cast upon the title of the plaintiff in the lands in question, by the other heirs, he is unable to sell or incumber the same, and for the same reason, they cannot sell the same on execution.
    The court of common pleas held, that the plaintiff was not entitled to any relief; and dismissed his petition, and the cross-petitions of John E. Hanna and Belford & Okey.
    
      
      Bedford Obey and Gceorge B. Okey, for plaintiff in error.
    1. The court will observe that by the first clause of the first item of the will, the lands of the testator are devised to his widow for life. . ■
    2. That by the second clause of that item, the testator devised to his sons, Silas and William, at the death of the widow, an estate in fee simple, in clear, concise and unequivocal terms — in language so plain that, standing alone, there could be no controversy about its meaning. w
    3. That according to the terms of the third clause of the same item, that if either Silas or William die leaving no children at his decease, his share shall go into the possession of his survivor.
    4. That by the provision of the fourth clause of the same item, if both Silas and William die leaving no heirs, the property shall be equally divided among the heirs of the testator.
    5. That there is no other clause in the will, by force of which the estate given to Silas and William, or either of them, may be cut down or taken away.
    6. How far the vested remainder in fee, given in the second clause of the first item to Silas and William, is liable to be cut down by the third clause of that item, is manifest. One of the brothers must die leaving no children to survive him, but leaving to survive him the other brother. As Silas died leaving children to survive him, the contingency upon which the estate could be cut down is clearly impossible.
    7. Nor is there any more doubt concerning the fourth clause of that item. That was a contingency upon which the property was to be equally divided among the heirs of the testator, to wit, the death of loth Silas and William without heirs. As Silas died leaving children, the contingency can never happen. Hence, in the language of the court in Jeffers v. Lanipson, 10 Ohio St., 101-104, looking to the first item, “We are of opinion, that by this language, a remainder in fee, (after the determination of the life estate of the mother) was vested immediately ir (Silas) and (William), in equal moieties of the premises in common ; such vested remainder, however, being subject to be divested in the contingency expressed.” And we have shown that the contingency is rendered impossible. And we think that this brief, but as we submit perfectly fair analysis of the first item of this will, read in the light of the material facts we have stated, ought to put an end to this controversy. But the importance of the case demands an examination of the authorities and some further remarks concérning the language of the will.
    8. The language of Lord Brougham in Thornhill v. Hull, 2 Clark & Finnelly, 22-36; s. c. 8 Bligh., N. S., 88, referred to in Strong v. Lemer, 10 Ohio St., 93-98, and cited with approbation in Parker v. Parker, 13 Id., 105-110, but only the recognition of the law as briefly stated by Mr. Jarman in Rule XII, is clear and strong. Jones v. Colbeek, 8 Yes., 42; Blakiston v. Heasleivood, 10 C. B. (70 Eng. C. L.), 544; Croly v. Weld, 21 Eng. L. & Eq., 425, 426; Hearle v. Hicks, 1 Clark & Finnelly, 20, 24; Carriganv. Kilman, 1 Brad. Sur., 208; Brown v. Lyon, 6 N. Y. (2 Selden), 419, 420; Redfield on Wills (4th ed.), 434; Rev. Stats., § 5970.
    9, The word “heirs,” in the clause’wherein the property is devised to Silas and William Collins, cannot be read as “ children ” as claimed by defendants’ counsel. It certainly cannot be so read when used in other parts of the will, and the case must be a strong one to change the meaning of that word in the devise to Silas and William. But even if it could be, the case is no better for defendants. Niles v. Gray, 12 Ohio St., 320. No one doubts that the devise to Silas and William, standing alone, clearly imports a fee. We do not deny, however, that in a clear case the word “ heirs ” may be read “ children.” King v. Beck, 15 Ohio, 559 ; (Jollier v. Collier, 3 Ohio St., 369. But in such ease the intent to use the words not in their strict legal sense must, in the language of Lord Alvanley, “ appear so plainly that no one can misunderstand it.” 3 B. and P., 620. “ General and clearly established rules of construction must be followed, as much as statutory requirements.” Redfield on' Wills, (4th eel.), 422, citing Lord Hale in King v. Melling, 1 Ventr., 231; Wilmot,’ J., in Long v. Laming, 2 Burrow, 1110, 1112; Wilmot, J., in Doclson v. Grew, 2 Wilson, 322; 2 Jarman, 761.
    “ The general rule deducible from the cases, in regard to departing from the natural import of the words, is, that it is not to be done, where there is any doubt in regard to that being the intention of the testator,” 1 Redfield on Wills, (4th ed.), 450; Thompson v. Whiteloclc, 5 Jur. N. S., 991; Campbell v. Raiodon, 18 New-York, 412 ; Guthrie’s Appeal, 37 Penn. St., 9. In the latter ease the court say: “Admitting now, with Mr. Hayes, that the word ‘ children ’ may be construed to mean ‘ heirs of the body,’ yet there must be, as he says, an express warrant for this change of its legitimate meaning, under the hand of the author of the gift. The intention to use' it as a word of limitation, contrary to its natural import, must be rendered clear by„the words of the grantor or testator himself. Conjecture, doubt, or even equilibrium of apparent intention, will not suffice.” To the same effect is Mr. Jarman’s Rule XVII; De Beauvoir v. De Beauvoir, 15 Sim., 163; S. C. on appeal,. 3 Ho. Lds. Gas., 524-557.
    
      John M. Amos, for defendants in error.
    Had Silas died without issue, there could, we think, be no controversy. William would succeed to the estate, during life, and at his death, if he have children, the object of the testator would be attained by his wise provision for his grandchildren. But Silas died leaving these two sons. ' William is as yet childless. If he die without issue, his brothers and sisters cannot succeed to the estate, for the will plainly provides that only in^the contingency of both William and Silas dying without issue can they succeed. This cannot happen.
    “ Since the death of Silas, partition of the estate was made between the sons of Silas and the plaintiff.” There was no ground for William to contest in that action. The provisions of the will were plain as to Silas, there was no ambiguity, because he left children. Are they not equally plain if William die leaving no children? During the life of William no contingency can arise to interfere with his possession or rights under the will, except his inability to pledge the estate for debts.
    Referring to the sixth point of plaintiff’s argument, by reading — “ One of the brothers must die, leaving no children to survive him but leaving to survive him the other brother,” or his children, we discover the. mind of the testator, otherwise, why should any provision be made for the disposition of the property, in the case of the death of both Silas and William, “ leaving no heirs ” [children ] ? The testator seems to have fully realized that he could preserve the estate no further than to his grandchildren.
    The object of the testator seems to have been to so entail the estate as to prohibit either of his sons, William and Silas, from doing exactly what William now seeks to do, and thus t« preserve the estate in fee to the children of these sons, or of either of them if the other died rVithout XbblXG*
    Both William and Silas took possession at the death of their mother under the provisions of the will; at the death of Silas, his sons, Edward W. and Finley S., received their moiety of the estate by partition, under the further provisions of the will,- thus all the provisions of the will have been peaceably carried out, except the last one, which yet remains contingent upon the death of William “leaving no heirs” (children).
    We therefore maintain that the plain interpretation of the will, under the rules and precedents, so fully cited in plaintiff’s argument so far as it relates to William and Silas and their children is that testator intended to create and did create an estate tail, and that the children of Silas Collins inherit the estate now in possession of William, in fee should he die “leaving no heirs” (children).
   Dick man, 5.

The question of construction involved in this case, grows out of item first of the will of Finley Collins, which reads as follows:—

“ I give and devise to my beloved wife in lieu of her dower, the farm on which we now reside, situate in Brook-field township, Noble county, Ohio, and also seventy-seven acres, more or less, situate in Spencer township, Guernsey county, Ohio, in all, three hundred and sixty acres, more or less, during her natural lifetime; and all the household goods that I am in possession of at my decease, are to remain in the possession of my widow during her lifetime. At the death of my said wife, the real estate aforesaid, and such part of my household goods as may then remain unconsumed and unexpended^ I give and devise to my two sons, Silas and William Collins, and their heirs. If, however, either of my said two sons should die, leaving no children at their decease, then the share of said property above devised to such deceased son, is to go into the possession of the surviving son. If, in case both of my two sons, Silas and William Collins, should die leaving no heirs, then the property above described to be equally divided among my heirs.”

It is claimed on the part of William Collins, the plaintiff in error, that by the will of his father, he and his brother Silas each took a vested remainder in fee simple in one undivided half of the lands, defeasible upon the contingency of the death of either, leaving no children at his decease, and leaving the other brother to survive him. It is contended however in behalf of the children of Silas Collins, that the testator intended to create and did create an estate tail, and that they will inherit in fee, the estate set off to William by partition, should he die leaving no children. We do not so construe the words of the will. The testator in the first instance gave to his wife a life estate in the homestead farm. At her death, he devised the real estate so given to her, to his two sons Silas and William Collins “and their heirs.” If we pause at this point, and do not consider the subsequent clauses of item first of the will, there can be no doubt as to the meaning of the language of the instrument, or as to the intention of the testator. The two sons, in plain and unmistakable terms, each took a vested remainder in fee simple in one undivided half of the lands, determinable however upon a certain event. The words of inheritance used to vest the estate in the sons, standing alone, are to receive that construction and interpretation, which a long series of decisions has attached to them, unless it is very certain they were used in a different sense, and there is no pretence of such certainty in the present case. The fee simple' devised was not indefeasible, but subject to be divested upon the contingency expressed. In the event that either of the sons should die leaving no children at his decease, his share of the property was to pass into the possession of the surviving brother. The survivor would take the propert}r, after the determination of the estate in fee simple by way of executory devise. But Silas having died, leaving at his decease two sons, his only children and heirs at law, the contingency upon which his vested remainder in fee simple would be divested, became impossible, and his children are now the owners in fee, of the moiety of the lands which was set off to them in the partition proceedings. Moreover, while the death of Silas, leaving children at his decease, fixed the title of his share of the lands in his offspring, and thus destroyed the limitation over, that event had the effect of relieving William’s vested remainder in fee simple, from a liability to be defeated. If William should die, leaving children at his decease, no one could question their right, as heirs at laAV, to a fee in their father’s share. And if he should die without leaving children at his decease, there would be no surviving brother, as designated in the Avill, who could take possession of his share by way of executory devise. No contingency provided for by the testator, can uoav arise, which can curtail the fee. simple estate of William, as vested by the plain and concise words of his father’s will. Following the well-settled rules for the interpretation of wills — for the construction of written instruments — and searching for the testator’s intention in the language contained within the “ four corners ” of his will, we can find no satisfactory reason for suppleme uting the words “ go into the possession of the surviving son ” with the words “or his children,” or other equivalent words not used by the testator. And it is only by thus supplying language, upon the assumption of its intended use by the testator, that the children of Silas can make good their claim to the lands set off to William, upon the event of his dying without leaving children at his death. Furthermore, while there can be no “surviving son” in the person of Silas, into whose possession William’s moiety of the lands can go, the contingency upon which it might go to the heirs of the testator, has become impossible. The death of both Silas and William, leaving no heirs, is an event which can never occur, and hence the provision of the will for dividing among the heirs of the testator the real estate described in item first has become entirely inoperative.

The manifest intention of the testator was that his two sons, William and Silas, should together occupy the farm, and equally enjoy its avails during their joint lives. And with this in view he bequeathed to them all his stock of every kind, with all the farming utensils of every description of which he might be possessed at the time of his decease, and also such part of his household goods as might remain unconsumed and unexpended at the demise of his wife. He was doubtless aware that if either of the two sons should die, leaving children, a partition of the farm would become expedient if not absolutely necessary, and in such an emergency as the children would become the absolute owners of their ■ father’s share, a sense of justice and a desire for impartiality as between the two sons would prompt him to vest in his surviving son an estate equal in quantity to that of the brother’s children. And such indeed was the operation of his will — it being so drawn that by the death of Silas, with children surviving him, the instrument became inoperative as to its subsequent limitations, and per force gave a fee simple to William.

It would, therefore, be a forced construction to hold that the testator by his will" created an estate tail in William and Silas. Estates tail are not favored in this country, but are in fact, either prohibited or, as in our own state, very essentially limited and curtailed. The presumption is against the intention to create them, and that presumption must be overcome by language entirely free from ambiguity. It is insisted that the testator, when he made the devise to “ Silas and William Collins and their heirs,” intended “heirs of their bodies,” or “their children”; and that in providing that the property “devised to such deceased son is to go into the possession of the surviving son,” he meant the surviving son or “ his children,” thus giving William’s share to the issue of Silas in the event of William’s death without children. As we have hereinbefore in effect said, such an interpolation of language and such a departure from the legitimate import of words are not necessary to a proper construction of the will, and are not to be resorted to unless authorized — as they are not in this case — by the clearly expressed intention of the testator. If he had designed to give the two sons only a life estate with limitations over, it would have been very easy to use the ordinary language adapted to that purpose. When devising the farm to his widow, “during her natural lifetime,” the testator failed not to use the appropriate words for such a devise. That he did not ignore the word “ heirs ” as a word of inheritance absolute, is evident from the fact that in his bequests of pecuniary legacies it is omitted because unnecessary, while it is employed when he wishes to give the stone-house and lot in fee simple to his daughter Maria Barnes.

In our view, by clear and unequivocal terms in the second clause of the first item of the will, William took a vested remainder in fee simple in one undivided half of the homestead farm; and, as the contingency upon which his estate might be divested became impossible, it cannot be cut down to a life estate by any construction given to the subsequent clauses. As held in the case of Thornhill et al. v. Hull, 2 Clark & Finn., 22. “It is a rule of the courts, in construing written instruments, that when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate can not be taken away or cut down'by raising a doubt upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate.”

The judgment of the court of common pleas must be reversed, and the will construed as prayed in the petition and cross-petitions.

Judgment accordingly.  