the property in the alternative of her son's death having children. She may have desired him to have the use of the property during his life, and, in case of his having children, the power to dispose of it as he might in his own discretion think best for the interest of his family, but have also wished the property, in case he had no children, to go to her relatives. It is possible that the testatrix, in case of her son's death having children, desired them to take the property directly from her, but the will expresses no such wish. It is equally consistent with the will that she desired her son to inherit the fee in such event. Being content with the statutory rule of descent, she made no provision to the contrary.

It may be said that it will be presumed that the testatrix intended to dispose of her entire estate, and that the will should be so construed, unless this presumption is rebutted by its provisions. It is true that any reasonable construction of a will, consistent with its terms, will be adopted so as to give it effect to dispose of all the testator's property, and not to leave a part intestate, but this rule cannot be carried to the extent of inserting provisions in the will which the testator failed to insert. Clear words are necessary to disinherit an heir; and, even where the intention is clearly manifested, the heir will take, unless the testator devises the property to some one else. Parsons v. Millar, 189 Ill. 107, 59 N. E. 606; Lawrence v. Smith, 163 Ill. 149, 45 N. E. 259. The court cannot presume a will for a testatrix on mere speculation as to what might have been her intention. It is the intention of the testatrix only so far as she has communicated that intention by her will which is to govern the descent of her estate. The omission to make any gift, in the one case, may have been the intention of the testator as fully as the gift over in the alternative.

[The court then held that the estate to the nearest relatives of the testatrix, should Lester Curtis die without children, was a contingent remainder, and was destroyed by the merger of the life estate in the reversion of Lester Curtis, which occurred upon the conveyance to William A. Bond.]

Our conclusion is that the language of the will does not warrant the implication of a devise of the remainder to the children of Lester Curtis; that the reversion descended to Lester Curtis, as heir at law; that by his deed to William A. Bond the life estate merged in the reversion, and the contingent remainder to the nearest relatives of the testatrix was destroyed; and that the appellants hold the title to the premises involved in the respective causes in fee simple.

The decrees are reversed, and the causes remanded for further proceedings in accordance with this opinion. Reversed and remanded. CARTER, J. (dissenting). [Only the following portions of the dissenting opinion are given:]

The devise to these grandchildren of the testatrix arises by implication, founded upon expressions in the will from which such an in

tention on the part of the testatrix is inferred. Connor v. Gardner, 230 Ill. 258, 82 N. E. 640, 15 L. R. A. (N. S.) 73, and note. The common understanding of the language of the will would convey the meaning that if the son died without children the remainder must go to the other relatives of the testatrix; but just as plainly the meaning is conveyed that in the other alternative-that is, if the son should leave children-it was intended that these children should take this remainder. The familiar rule of construction that the inclusion of one alternative is the exclusion of another, or vice versa, would tend to confirm this conclusion. Anderson v. Messinger, supra. Not only would this be the meaning given to these words by the ordinary layman, but the lawyer would almost certainly say, as a matter of first impression, that such a construction of the will carried out the plain intent of the testatrix. The construction placed upon this will by the majority opinion of the court would not readily suggest itself on the first reading of the will and certainly was not intended by the testatrix. It is a construction that must be searched for. Does it not require a strained and unnatural meaning to be placed upon the words of the will? Rules of law should not be permitted to thus defeat the intention of the testatrix, unless they have been long established and upheld by the great weight of authority. It may be admitted that it is "essential to the security of property that a rule should be adhered to when settled, whatever doubt there may be as to the grounds upon which it originally stood" (Ram on Legal Judgment, p. 230); that it is extremely dangerous to shake the authority of decided cases (Beal on Cardinal Rules of Legal Interpretation, p. 20). I find no such settled rule, however, upholding the construction placed upon this will by the majority opinion of the court. The precise question here under consideration has never been passed upon by this court; but, as will be shown hereafter, cases have been decided by this court in which this question has been discussed, and the reasoning in those cases fairly tends to uphold the construction contended for in this dissent. It is conceded that the decisions in the English courts tend to uphold the conclusion of the opinion; but it is evident, from a study of the English authorities, that they are not all in harmony on this question, and that the rule on this subject has been changed by the modern decisions of those courts. Anderson v. Messinger, supra. The great weight of authority in this country is opposed to the rule of construction laid down in the majority opinion of the court.

It has been held in the English courts that while American decisions will be entitled to great respect yet they cannot be treated as controlling or placed on the same footing as the decisions of their own courts. Beal on Cardinal Rules of Legal Interpretation, p. 47. It has been rightly said that the English decisions are only "quasi au thority" in this country. Ram on Legal Judgment, p. 293. The law of this state requires that the common law of England, so far as the

KALES FUT.INT.-36

same is applicable and of a general nature, shall be the rule of decision in this state unless repealed by legislative authority. Hurd's St. 1908, p. 485. The English cases since the Revolution are not regarded as authority. Upon disputed doctrines in our courts they are entitled to respectful consideration; but where the question relates to the construction or effect of written documents they have no greater weight than may be due to the reasons given in their support. Andrews v. Durant, 11 N. Y. 35, 62 Am. Dec. 55. To the same effect are Cathcart v. Robinson, 5 Pet. 264, 8 L. Ed. 120, and Koontz v. Nabb, 16 Md. 549. No decisions have been cited in the opinion of the court that were decided previous to the American Revolution. [Then follows a review of the authorities referred to in the opinion of the majority.]

The decided weight of American authority is against the construction of the will upheld by the majority opinion of the court. If the English and American authorities are in conflict, surely the American courts ought to follow the American decisions rather than the English, unless sound reasoning and principle require the following of the English authorities; but when not only the American authorities are substantially, if not entirely, unanimous on the question, but also the reasoning in the decisions of our own court tends to support the construction given to this will by the chancellor in the court below, then before this court should hold to the contrary we ought to be convinced that the rule of the American decisions is not sound in principle and is manifestly mischievous in its results. This court has time and again laid down the doctrine that the intention of the testator as stated in the will must control when not against public policy or public law. It is the courts' duty to construe wills as they find them, and not to make them. Illinois Land & Loan Co. v. Bonner, 75 Ill. 315. But courts may, in effect, make wills for parties by giving them a mistaken interpretation. While the doctrine of implication must be resorted to cautiously in the construction of wills, the court should not hesitate to resort to that doctrine when thus only can the manifest intention of the testator be carried out. Does not the construction given to the words by the majority opinion rest to a far greater extent on conjecture than does the construction given by the trial court? The testatrix, without question, intended that her son should only have a life estate in her property, with the right to control and manage it and with the right to use sufficient of the proceeds for his support and comfort; but is it not a most violent inference that she intended that if he had children he should have a fee-simple title instead of a life. interest? The intention of a testator "is to be collected from the whole will taken together. Every word is to have its effect and every word is to be taken according to the natural and common import.' Thellusson v. Woodford, 4 Ves. 329. The rule just quoted from this early English authority has always been followed in this court. Applying it in this case, and giving to the words of this will their natural

and common meaning, it should be held that the intermediate estate in remainder was intended to go to the grandchildren of the testatrix, if any such were born to her son. To give the estate to such issue leaves none of it intestate and will do no violence to the language of the will, but will carry into effect the purpose of the testatrix clearly implied from the language she has used in that instrument.

The only justification, it seems to me, for construing the will in accordance with the rule laid down in the opinion of the court is the decisions of the English courts during the past century. Those courts seem to apply fixed rules to the construction of devises to an extent not generally adopted in this country. Anderson v. Messinger, supra. In following their decisions on this question, are we not adopting an arbitrary rule for its own sake, rather than to carry out the intent of the will, thus defeating instead of promoting, justice? By so doing are we not imputing to the testatrix the "extraordinary intention" (1 Jarman, supra) that other and more distant relatives are to become entitled to the remainder if the son has no children, but that the remainder is not to go to these children, if any there be? Is it not "too plain for doubt" (1 Washburn, supra) that the testatrix. intended these grandchildren to take this remainder?

HAND and FARMER, JJ. We concur in the dissenting opinion of Mr. Justice CARTER.

SECTION 2.-IMPLICATION OF LIFE ESTATES-NOTES ON DISTRIBUTIVE CONSTRUCTION AND INTERMEDIATE INCOME

RALPH v. CARRICK.

(Court of Appeal, 1879. 11 Ch. Div. 873.) 1

Andrew Carrick, M. D., who died in June, 1837, by his will, dated in March, 1837, gave to his executors thereinafter named (three in number), their heirs, executors, administrators, and assigns, the whole of his property, real and personal, in trust for the payment of his just debts; with full power to sell absolutely and convert into money all or any part, or as much as they should at any time think fit and necessary, of his estates real and personal (but subject as to his personal property to certain specific directions), or to demise or let all or any of his hereditaments; and after providing for the appointment of new trustees to act in the execution of the trusts of the will, he directed that they should stand possessed of the moneys produced, upon trust out

1 The statement of facts is taken from the report of the case in 5 Ch. Div. 984, when it was heard by Hall, V. C.

of those to arise from his real estate only, or out of the rents and profits (and not out of the produce of his personalty) to pay all costs, charges, and expenses which they should be put to in or about the performance of the trusts, all his mortgages and other debts, and funeral charges and the legacies and bequests. After giving some legacies he gave to his wife £1500, and all his household furniture and other articles mentioned. He then gave various other pecuniary legacies, including certain legacies to charitable institutions (which he directed to be paid out of his personal estate), and after referring to a marriage settlement, and making provision for payment under certain circumstances of other legacies out of the produce of his real estate, directed that in the event of his death without lawful issue (which event happened), and after the death of his wife (which event happened in 1876), and after the payment of all debts, legacies, and bequests, the whole residue of all his remaining property, real and personal, in England should, by his executors, trustees, or administrators, be divided into twelve equal portions, whereof three portions should be given to the children of his late aunt, Mrs. Wingate, equally among them, the descendants (if any) of those who might have died being entitled to the benefit which their deceased parent would have received had he or she been then alive; that two portions should in like manner be given to the children and descendants of his late aunt Mrs. Bannerman; two portions should in like manner be given to the children and descendants of his late aunt Mrs. Monteath; one portion to the children and descendants of his late aunt Mrs. Cunningham; one portion to the children and descendants of his late aunt Mrs. Matthie; one portion to the children and descendants of his late aunt Mrs. Elder; one portion to the children and descendants of his late aunt Mrs. Finlayson; and that the remaining twelfth portion should be given to the children or descendants of his late maternal aunt Mrs. Pearson; and should there be no children or lawful descendants of any of his aunts above named remaining at the time these bequests should become payable, then the portions of his residuary estate thereby devised and destined for such of them, should be placed in the general residuary fund, and bestowed as part thereof as above pointed out. The testator then proceeded thus: "And seeing that a large portion of my real estate must be sold immediately after my decease for the payment of my just debts and the expenses necessary in proving this my will and in carrying the provisions thereof into effect, and that great loss of property will unavoidably accrue from the hasty conversion of land into money in these times of great and undue depression, through that most unjust, impolitic, and swindling measure of restoring, as it is called, the current medium; or rather, as it should be called, a measure to compel debtors to pay their creditors double the amount that was due; in order, therefore, to mitigate in some degree this dreadful mischief by giving longer time for making the necessary arrangements, I hereby declare that it shall not be incumbent on my executors, trustees, or administrators to pay