11. EASEMENTS 18(1) IMPLICATION - ESTATES CREATED BY WILL.

tate is not in tail.

[Ed. Note. For other cases, see Estates Tail, Cent. Dig. § 1; Dec. Dig. 1.

For other definitions, see Words and Phrases,

First and Second Series, Estate Tail.]

4. WILLS ~607(2) - CONSTRUCTION-TECHNICAL WORDS.

That the testator used the word "entailed" erroneously, intending only to create a life estate in his children, will not defeat his clear intention, nor invalidate the will for creating estates tail.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1370; Dec. Dig. 607(2).]

5. WILLS

CREATED.

607(2)—ConstrUCTION—ESTATES

Under the rule in Wild's Case, a devise to children, "and then when they are done with itto go to their children," is not invalid as an attempted entailment, but creates a life estate with remainder over.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 1370; Dec. Dig. ~607(2).]

6. WILLS 495- CONSTRUCTION-PARTICULAR WORDS-"CHILDREN"-"HEIRS."

The word "children" is of purchase, while "heirs" is of limitation, although the liberal construction of wills requires that "heirs" be construed to mean "children" if manifestly so intended by the testator.

(Citing Words and Phrases, Children; see, also, Words and Phrases, First and Second Series, Heirs.)

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1061-1064; Dec. Dig. 495.] 7. WILLS 605- CONSTRUCTION - ESTATES TAIL.

The mere provision that the testator did not want his property "to get away from his heirs to outside parties" held not to attempt to create an estate tail, in view of the further provisions of the will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1360-1365; Dec. Dig. 605.]

Where the testator devised the family burying ground to one child, whose land abutted it and separated it from the road, a right of

way thereto was necessarily implied.

[Ed. Note.-For other cases, see Easements,

Cent. Dig. §§ 50, 52, 55; Dec. Dig. 18(1).]

12. WILLS 441-CONSTRUCTION.

The court, in construing a will, should assume as far as possible the standpoint of the

testator.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 958; Dec. Dig. 441.]

13. WILLS 457-CONSTRUCTION.

In construing the will of an unlettered man, written by himself, a special duty devolves upon the court to give effect to the intention, and not to give technical meanings to words mis takenly used.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 975; Dec. Dig. 457.] Appeal from Circuit Court, Fountain County; Isaac Schoonover, Judge.

Action by Martha J. Conover against Clifford A. Cade and others. Judgment for defendants, and plaintiff appeals. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Affirmed.

Addison C. Harris, of Indianapolis, and Crane & McCabe, of Crawfordsville, for appellant. Lucas Nebeker, of Covington, for appellees.

MORRIS, C. J. Action by appellant, Martha J. Conover, to quiet title, involving the Construction of the will of Samuel Cade. The testator owned 3,095 acres of land in Fountain county, of the value of $250,000, and on or before May 18, 1904, commenced the preparation of his will, which was finished and signed May 25, 1906. The instrument is in his own handwriting. He died in 1908. When the will was written, and at

A deed inter vivos of the fee substituted for a devise of a life estate in the land conveyed and other land could not change the devise of a life estate in such other lands to a fee.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1368-1369, 1371; Dec. Dig. G07(1).]

9. WILLS 597(1)-CONSTRUCTION-ESTATES CREATED.

A devise of a life estate, with the provision that, if the land should be sold, the devisee should have a certain sum of money, does not impliedly grant the fee, since a life estate may exist in personalty, especially where it did not appear that the sum named was the full value of the land.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1319, 1322, 1326; Dec. Dig. 597(1).]

children, Martha J. Conover, Clifford A. and David S. Cade, Frances O. Glasscock, Mary F. Nixon, and Bessie L. Hurst, all of whom were married and had children, except Mrs. Conover and Clifford Cade. The latter was married in 1903, when 26 years of age, but never had any child. Mrs. Conover was married in 1896, at the age of 34 years, and has had no child. The husbands and wives of the children survived the testator. Frances O. Glasscock died before the bringing of this action. Testator had no descendants except said children and grandchildren. He left a personal estate of the value of $45,000. So much of the will as is material here reads as follows:

* I Samuel Cade while I have the ability to divide my land and personal property between my wife and Children-I know that I know more about my real estate than any Judge or Commissioner that might be appointed

"Mary F. Nixon has had and is in the page that that I give her the land & the Veedersburg home Property if $4650.00 in cash and the house and lots cost me in 1883 $3600.00 and in taxes I paid on the property about $1500.00 and loaned Mary F. Nixon to pay for paving Second St-$1000.00 and got Back $500.00 and then loaned him $300.00 and he never paid it making it $8000.00 all $9400.00.

"Francis O. Glassock has $1500.00 and I have give Bessie L. Hurst March 1906 $3000.00

"No. 11 Continued. and I have made numer

as gifts in money to my Children but as thare is not much difference will not make any State

ment

"I expect to build Bessie L Hurst a house and barn to Cost a bout three thousand dollars on the north Side of the road on the hill beyound the end of the lain or road north of my house and east as we go to Veedersburg and this not to be counted against her it is to be counted real estate-Mattie J. Conover David Samuel Cade Bessie L Hurst and Clifford A cade have more in acres that Mary F. Nixon or Frances O. Glasscock but they have nearly all the waist land Coal Creek and Branches that run into it and hills and hollows and poorer land and will

not be fit to Cultivate.

"No. 11 Continued. as an explanation of the fore going will of Samuel Cade of Wabash Township-Fountain County Indiana it is my will and wish that my personal property that means notes & money moastly that my wife gets one third and that the Children get the ballance Share & Share alike-Bessie to have three thousand dollars for her house & barn if I do not build them for her before the divide begins-but the $3000.00 already given her to be part of her personal property-now if my wife thinks Mary F. Nixon & Frances O Glasscock has had too little-She is to make it up to them.

"In witness whereof I have hereunto set my hand and seal this 25th day of May 1906. Samuel Cade. [Seal.]"

The will contains a correct plat of the land devised to each child, with its name written thereon by the testator.

At the trial it was agreed that the "Yeddo" land referred to in paragraph 4 of the will was not sold by testator; that the lands referred to in paragraph 6 in relation to the way to the graveyard were owned by testator at his decease and when he executed the will; that testator's widow qualified as executrix and made final settlement and distribution of the personal estate; that the distribution to legatees was made pursuant to a written agreement of interested parties; that testator's widow elected to take under the law; that after the probate of the will, at a family conference, testator's widow agreed to convey to each child and his or her wife or husband her fee-simple interest (reserving a life estate for herself) in the undivided third of the land described in the devise to such child; that subsequently she did convey by deed, in fee simple, to appellant and her husband, as tenants by entireties, in consideration of love and affection, the undivided one-third of the lands described in the devise to appellant, subject to a life estate therein to the grantor; that the widow made conveyances to the other five children pursuant to the terms of her agreement; that on July 23, 1904, testator, his wife joining, conveyed by quitclaim deed to appellee Mary F. Nixon

the Veedersburg town lots referred to in paragraph 3 of the will.

Appellant's action here is to quiet her alleged title in fee simple to the undivided twothirds of the 453 acres described in paragraph 5 of the will, on the theory that the will devises such estate. All the other living descendants of testator were made defendants. Appellees claim that appellant took primarily a life estate only, with a remainder interest in event of the death of a brother or sister

without a child. The trial court held with appellees.

It is contended by appellant, and conceded by appellees that the testator did not contemplate partial intestacy. The learned counsel for appellant assert that the estate given to each child must be determined from the language used in each of paragraphs 3 to 8, inclusive, wherein the testator says "to [name of child] I give," followed by a description of land; that the phrase "I give" must be held sufficient to devise a fee, and that such estate is not cut down by the language found in the other paragraphs; that the intention denoted in other paragraphs was to restrain the inheritance from his children to his own blood descendants, and cannot be given effect because of our statute abolishing entails; that testator intended to entail his personal property in ignorance of the law, which never permitted such disposition.

Counsel for appellees contends that the language in the first paragraph, "I want it distinctly understood that I want my property to go to my children and then when they are done with it-to go to their Children if any they have—and if there is any that have no children then their Share goes to my other Children or their Children provided they should be dead" (italics here and throughout ours), constitutes a devise, but for life only to appellant and the other children, with alternative remainders in fee to grandchildren or brothers and sisters, and citing in support of the latter proposition Granger v. Granger, 147 Ind. 95, 44 N. E. 189, 46 N. E. 80, 36 L. R. A. 186, 190, Thompson v. Jamison, 31 Ind. App. 376, 68 N. E. 176, 16 Cyc. 649, 650, and 40 Cyc. 1643; that the language in clauses 3 to 8, inclusive, is not in conflict with such theory; that it does not define the estates given, and is consistent with the theory of devises of life estates already given, and must be held as devising nothing more; that, regardless of some loose language used in reference to "entailing" his estate, no intent is revealed in the law to create estates tail. That in the construction of a will all its provisions must be considered, and the intent of testator, if manifested, must be given effect, if lawful, is settled beyond controversy, and is not questioned by appellant. Alsman v. Walters (1916) 111 N. E. 921.

[1] We are of the opinion that the language we have italicized manifests the testator's intention to devise primarily a life estate only,

[2] We are further of the opinion that such gift is not enlarged by the language found in paragraph 5, as follows: "To Martha J. Conover I give." At common law the paragraph, standing alone, would have devised no more than a life estate. Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659. If it stood alone here, by virtue of our statute (section 3123, Burns 1914), and because of the presumption against intestacy, it would devise a fee. But it does not stand alone, and, in our opinion, the fee is devised to others by paragraph 1 which manifests, not only the intention to make a devise of the entire two-thirds to others than the wife, but also a purpose to partition the estate and allot the shares in severalty. Rusk v. Zuck, 147 Ind. 388, 45 N. E. 691, 46 N. E. 674. The testator was of the opinion (likely correct) that he was better qualified to make a just division of the land than would be commissioners appointed by a court, or the court itself, if called on to review the commissioners' work on evidence of witnesses. Sections 1255, 1256, Burns 1914. The will shows that the land was of variant quality, that his children had been advanced in different amounts, and had enjoyed the fruits of his estate in varying degrees, and that it was testator's intention to make an equitable division among them, taking into consideration all these factors. Considering the will as a whole, it is evident that in the first paragraph he determined the character of the estate to be devised, and that in the paragraphs 3 to 8, inclusive, he was concerned chiefly, if not entirely, about the proper partition of the large estate.

[3] Aside from these six paragraphs, it is claimed by appellant that the will exhibits the intention of testator to devise to his children what at common law were recognized as estates tail, and which by our statute have been converted into fee simple ones. An "estate tail" is generally defined as one of inheritance (deriving its existence from the statute de donis conditionalibus, 13 Edw. I, cl. 1, 1285) which is descendible to some particular heirs of the devisee or grantee, and not to his heirs generally. 1 Cruise, 78; Outland v. Bowen, 115 Ind. 150, 17 N. E. 281, 7 Am. St. Rep. 420; 2 Blackstone Com. 110. Its character is not changed by its descent

[4] It is true that testator says (paragraph 11) that he has "entailed" his estate, "so that when my Children are done with it that it goes to their Children & if any of my Children die without Children then this property shall go to my other Children or to their children." Evidently the testator did not know the meaning of the word "entail," but he had the right to assign his own meaning to the words he used. Ridgeway v. Lanphear, 99 Ind. 251, 253. In the clause just quoted he furnished his own definition, erroneous though it be. a devise of a life estate to his children, and after their death to their children, which is clearly denoted by the language quoted, loses none of its effect by a patent mistake in naming it. The Century Dictionary, after defining the word "entail," uses this language:

But

"The word is now, however, often loosely used, since strict entails are obsolete, to indicate the giving of property to one or two successively for life with suspension of power of alienation meanwhile."

It is a matter of common knowledge that those unlearned in the law have hazy notions about entailed estates, and sometimes consider a mere vested remainder in fee as constituting a species of entailment. Estates tail were long ago abolished here. R. S. 1843, p. 424.

[5] However, since appellant never had any child, the rule in Wild's Case (1599) 6 Coke, 17, is invoked to show that the devise to appellant created what the common law recognized as an estate tail. What is called the rule in that case is recognized here as one of construction. Biggs v. McCarty (1882) 86 Ind. 352, 359, 44 Am. Rep. 320; Moore v. Gary, 149 Ind. 51, 53, 48 N. E. 630. In the report of Wild's Case it is said:

"And the case for difficulty was argued before all the judges of England." It "was resolved for good law that if A. devises his lands to B. and to his children or issues, and he hath not any issue at the time of the devise, that the same is an estate tail, for the intent of the devisor is manifest and certain that his children or issues should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is * * such words shall immediate, therefore * be taken as words of limitation. * 串 * But it was resolved that, if a man * * * devises land to husband and wife, and after their de