(No. 13438. Decree affirmed.)

CLARENCE J. BEATY et al. Appellants, vs. JAMES W. CalLISS, Appellee.

Opinion filed October 23, 1920.

I. WILLS when contingency must happen where gift over is preceded by particular estate. Where there is a devise of a future interest which depends upon a contingency and is to take effect in possession upon the termination of an intervening particular estate, the intention is construed to be that the gift over shall take effect if the contingency happens at any time during the existence of the particular estate, unless there is something in the will showing that the testator referred to a later date.

2. SAME-first devisee will be given estate of inheritance if intention is not to the contrary. On grounds of public policy, where the meaning of a devise over is doubtful, such construction will be adopted which will give an estate of inheritance to the first devisee, provided the will itself does not indicate a contrary intention.

3. SAME-the word "issue" may be construed to mean "children." In a legal sense the word "issue" means descendants and includes the whole line of lineal descendants, but in a popular sense the word may mean child or children and may be used in that sense in a will.

4. SAME when a devise over depending upon death without children will take effect if such contingency happens at any time. Where a testator, after giving his wife a life estate with remainder to his grand-daughter, provides that the latter shall not take control until she becomes of age but that a trustee shall act until that time, if necessary, and further provides that if the grand-daughter dies before the wife or subsequent thereto, leaving no surviving child or descendants of such, the land shall go to the testator's brother, the devise over will take effect if such death occurs at any time without leaving a surviving child or descendants of such.

5. HOMESTEAD there is no homestead after determinable estate ends with death of householder. Although a homestead is now an estate the purpose of the statute is merely to exempt the property from the householder's debts, and the estate is measured by the value of the interest which the householder actually has in the premises; and where the householder has a determinable fee, which comes to an end at her death, her husband is not entitled to an estate of homestead.

6. DOWER-husband is entitled to dower in wife's determinable fee. Where a wife has come into possession of an estate by a pro

vision in a will, with a devise over in case of her death without issue, upon the happening of the contingency her surviving husband is entitled to dower.

7. SAME dower may be assigned with dwelling house if there is no homestead right. Under section 37 of the Dower act dower may be assigned to a husband so as to include the dwelling house if it can be done without injustice to any party and there is no homestead right.

APPEAL from the Circuit Court of Sangamon county; the Hon. FRANK W. BURTON, Judge, presiding.

ROBERT H. PATTON, and GRAHAM & GRAHAM, for appellants.

JOHN L. KING, and Barber & BARBER, for appellee.

Mr. CHIEF JUSTICE CARTWRIGHT delivered the opinion of the court:

The appellants filed in the circuit court of Sangamon county their bill in equity to quiet their title to eighty acres of land and for partition. The bill alleged that Bertha E. Beaty acquired title to the land by devise from her grandfather, Randolph M. Calliss; that she died intestate, leaving the appellants her heirs-at-law, and that the appellee, James W. Calliss, claimed an interest in the land by virtue of an executory devise but his claim was unfounded. The bill was answered and the issue referred to the master in chancery, who took the evidence and reported the same with his conclusion that the premises were owned in fee simple by the appellee, subject to the dower of the appellant Clarence J. Beaty, surviving husband of Bertha E. Beaty. The cause was heard on exceptions to the report, which were overruled and a decree was entered finding James W. Calliss to be the owner in fee simple, that Clarence J. Beaty was entitled to dower in the land and that none of the complainants had any other right, title or interest therein. The decree provided for an assignment of dower, and that in

such assignment Beaty should have the dwelling house, if he desired it.

Randolph M. Calliss was the owner of the land and he died on December 13, 1897, leaving a last will and testament, made on March 9, 1897. The third clause of the will, which devised the land, was as follows:

"Third-I give, devise and bequeath to my said wife, Elizabeth A. Calliss, to have and to hold for her use and benefit during her natural life, my farm, described as follows: The south half of the southeast quarter of section thirty-one (31), township thirteen (13), north, range five (5), west of the third principal meridian, situated in the county of Sangamon and State of Illinois, and direct that should use so much of the proceeds therefrom as may be necessary to keep the taxes thereon paid and the buildings and improvements thereon in good repair. And at the death of my said wife the said farm shall descend to my grand-daughter, Bertha Eva Williamson, but it is my will that my said grand-daughter shall not assume control of said premises until she attains the age of twenty-one years, and if my said wife shall die before my said grand-daughter shall reach such age of twenty-one years, I direct that a trustee be appointed to control and manage such farm for the benefit of my said grand-daughter. If, however, my said grand-daughter should die before my said wife or subsequent thereto, leaving her surviving no child or descendants of such, then I direct that my said farm shall descend to my brother, James W. Calliss, if he should be then living; if not, I direct that the said lands be sold at public or private sale, as may seem most advantageous, and the proceeds thereof divided among the children of my said brother, James W. Calliss, then living, in equal shares."

When the will took effect Bertha E. Williamson was four years of age, and at the death of Elizabeth A. Calliss, on April 1, 1907, when the life estate came to an end. she was fourteen years old. From that time until she was

twenty-one years of age she was entitled to the income of the land, but the management and control were by the will placed in a trustee. At the termination of the trust she assumed control and possession of the land and was married to Clarence J. Beaty on November 25, 1918. She died intestate on September 27, 1919, leaving no issue surviving her, and leaving the appellants, her husband, Clarence J. Beaty, and her father, brothers and sisters, as her heirsat-law.

The principal question is whether the executory interest limited upon the death of Bertha E. Beaty leaving no surviving child or descendants of such, was intended by the testator to take effect only upon the happening of the contingency during the trust prior to her attaining the age of twenty-one years, when she was to come into possession and control of the premises, or upon her death at any time under the conditions stated in the will. She was four years of age when the will took effect and the life tenant was fifty-nine years of age, so that it was quite natural that the testator should have contemplated, as he in fact did, that there might be a period after the termination of the life estate during which the devisee would be under twenty-one years of age, and he provided that if there should be such a period a trust should be created for the management and control of the property. There was such an intervening period, and the argument for the appellants is that when the devisee came into possession and control of the property she was invested with the fee simple title.

While the purpose of construction is to ascertain the intention of the testator, it has been settled by judicial construction that certain provisions manifest such intention. One such case is where there is a devise of a future interest to take effect in possession upon the termination of an intervening particular estate, and it is held that the intention in such case is that the gift over shall take effect if the contingency happens at any time during the existence

of the particular estate, unless there is something in the will showing that the testator referred to a later date. (Lachenmyer v. Gehlbach, 266 Ill. 11; Spencer v. Spencer, 268 id. 332; Sheley v. Sheley, 272 id. 95; Abrahams v. Sanders, 274 id. 452; Fulwiler v. McClun, 285 id. 174; Morris v. Phillips, 287 id. 633; 40 Cyc. 1505; 2 Jarman on Wills, 1568; Underhill on Wills, sec. 346.) In Welch v. Crowe, 278 Ill. 244, there was a period during which a trust was created, and in this case provision was made for an intermediate period for withholding enjoyment, possession and control from the devisee, and at twenty-one years of age she was to be invested with all the rights of the owner of the fee.

On grounds of public policy it is the settled rule of this court that where construction is doubtful a construction will be adopted which will give an estate of inheritance to the first devisee. (Kohtz v. Eldred, 208 Ill. 60; Mills v. Teel, 245 id. 483; Williamson v. Carnes, 284 id. 521; Sheridan v. Blume, 290 id. 508.) In conformity to that rule the contingency upon which the executory devise was to take effect might well be referred to the period of the life estate and the interval between the termination of that estate and the time when the devisee was to come into full enjoyment of the devise, if it were not that the will itself indicates a contrary intention. The testator specifically provided for the contingency of death before that of the life tenant or subsequent thereto and upon the devisee leaving her surviving no child or descendants of such. It is true that the rule has been consistently applied in the above cases where the word "issue" was employed, and in a legal sense that word means descendants and includes the whole line of lineal descendants, (Arnold v. Alden, 173 Ill. 229; 23 Cyc. 359;) but in a popular sense it may mean child or children and may be used in that sense in a will. In view of the policy of the law the word might be held to mean a child, which would not be improbable at twenty