This court has never made the fact that the life tenant was the sole heir of the testator the only basis of a decision that heirs-at-law are to be ascertained at his death. The case of Johnson v. Askey, supra, was referred to in Bond v. Moore, 236 Ill. 576, where Lester Curtis was given a life estate with power to sell and exchange and invest proceeds, and if he should die without children, the estate, or so much of it as might remain after his reasonable expense for living, should go to the nearest relatives of the testator in such proportions as the law in such case provided. In case Curtis left issue no disposition was made of the remainder, and no estate was given to such issue either by the terms of the will or by implication, but whatever remained unspent of the estate was to go by way of remainder to the nearest relatives of the testatrix, which term does not have the direct, strict and technical meaning of heirs-at-law. Regardless of the meaning of the term, the estate devised in remainder could not be ascertained until the death of Curtis, or what, if anything, unspent would go to the nearest relatives. These provisions of the will made reference to Johnson v. Askey, applicable, not because it was a positive rule of law but as a means of interpretation. In Smith v. Winsor, supra, the rule declared was that the fact that a life tenant was one of the heirs of the testator does not establish an intention to exclude him from the heirs who take the remainder, and Johnson v. Askey, which was referred to as an exception, was in no way involved. In Downing v. Grigsby, supra, Carpenter v. Húbbard, 263 Ill. 571, and Lynn v. Worthington, 266 id. 414, Johnson v. Askey was referred to as not applicable to the wills under consideration. In People v. Camp, 286 Ill. 511, it was said to be well established as a general rule of construction that a bequest or devise by a testator to his heirs-at-law will be construed as referring to those who were such at the time of his death unless a different intent is plainly manifested by the will, but where it is clearly

manifested by the provisions of the will that the intent of the testator was to designate those persons who would be his heirs at the time of the distribution of the property that construction must prevail, citing Kellett v. Shepard, supra, Carpenter v. Hubbard, supra, and other cases, and it was held that the rule laid down in Johnson v. Askey was not applicable to that case. It has been held by other courts that the fact that the first taker is also the sole heir, where nothing further appears in the will, is not sufficient to postpone the period of vesting of the remainder, (Rand v. Butler, 48 Conn. 293; Thomas v. Castle, 76 id. 447; Kenyon, Petitioner, 17 R. I. 149;) but under our decisions what effect is to be given to the fact in determining the intention of a testator is to be determined from the whole will. In Jewett v. Jewett, 200 Mass. 310, the court repeated what was said in Heard v. Read, supra, that the principle is not a rule of substantive law but a rule of interpretation adopted as one means of ascertaining the intention of the testator, and that his intention is to be ascertained from the language of the whole will in view of all the circumstances of the case, and in many cases a limitation to the heirs of a testator or of a beneficiary after the termination of a life estate which is prolonged beyond the period of his own life, had been construed as requiring the heirs to be determined at the date of the termination of the subsequent life estate, because it was found that otherwise an intention which the testator had clearly manifested would be frustrated. In that case a remainder was limited to the heirs of the testatrix upon the death of her last surviving daughter, and it was decided that the time of ascertainment of the heirs to take was the death of the testatrix and not the death of the last survivor of her daughters. The court quoted from Whall v. Converse, 146 Mass. 345, the general rule that in case of an absolute limitation to the testator's heirs-at-law, persons to take are those who answer the description at the time of the testator's death; that the rea

sons for the rule are that the words cannot be used properly to designate anybody else; that such a mode of ascertaining the beneficiary implies that the testator has exhausted his specific wishes by the previous limitations and is content thereafter to let the law take its course.

It is clear that the statement made in Johnson v. Askey, supra, in connection with the cases cited and the provisions of the will under consideration, cannot be taken as a substantive and positive rule of law controlling and overcoming the intention of the testator upon a consideration of the whole will and all its provisions, but the fact that the life tenant is the sole heir is to be considered in determining the nature of the remainder and the time when the heirs-at-law are to be ascertained.

The language of the will of Mary Marshall in devising the remainder was, that if the life tenant should die withbut leaving issue surviving him, "then it is my will that such real estate revert and go to my heirs as if no will had been made." The use of the word "then" does not indicate the time for ascertaining who would be her heirs-atlaw. In People v. Camp, supra, the word "then" was used in providing for the distribution of the property according to law, and the court said that the word has been held in certain cases to be an adverb of time as used in connection with the devise of property; but this is not the general rule, which is that it does not point to the time when the right of the beneficiary to take begins but refers to the event upon the happening of which the legal heirs take the property. That was also the holding in Fitzpatrick's Estate, 233 Pa. 33. In Boston Safe Deposit and Trust Co. v. Parker, 197 Mass. 70, where the same word was used, the court held that it was not used as an adverb of time but meant the specified event.

The provision of the will of Mary Marshall was, that upon the death of her son, Horace S. Marshall, without leaving issue surviving him, the real estate was to go to

her heirs as if no will had been made. By the will she clearly manifested an intention to give her son a life estate and to secure and preserve to his issue surviving him a remainder in fee, and on failure of that limitation she had no intention or wish to change the disposition which the law would have made in regard to her estate, and she was to be considered as making no provision different from the laws of descent and leaving the property to be disposed of by such law as if she had made no will. She expressed in her will all that she desired in the way of limitation of the estate to her son for life and the fee to his issue if he should have any, and if the fee did not go to his issue her will was that the real estate should go to her heirs in the same manner as intestate estate. There is no positive or substantive rule of law, based on the fact that Horace S. Marshall was the sole heir of the testatrix, which interferes in any manner with the disposition of the real estate according to the intention expressed by the testatrix, and the persons who are her heirs-at-law and would have taken the estate if no will had been made were ascertained at her death.

Horace S. Marshall, the sole heir-at-law of the testatrix, would have taken the estate if no will had been made, and the limitation to his issue having failed by his death without surviving issue, his widow, Sara E. Marshall, took one-half in fee and the other one-half descended to his aunts and uncles living at the death of the testatrix and the heirs and devisees of those who have died since, if any, subject to dower and homestead rights of Sara E. Marshall. Lockwood v. Moffett, 177 Ill. 49.

The decree is reversed and the cause remanded, with directions to enter a decree in accordance with this opinion and for partition accordingly.

Reversed and remanded, with directions.

(No. 13458.-Reversed and remanded.)

FREDERICK Z. MARX, Appellant, vs. THE STATe Bank of CHICAGO et al. Appellees.

Opinion filed October 23, 1920.

1. PARTITION—mortgagee is a necessary party to suit-costs. Under the Partition act a mortgagee of premises sought to be partitioned is a necessary party to the suit, and may, in the discretion of the court, be considered a party in interest, within the meaning of section 40 of said act, concerning the apportionment of costs.

2. COSTS-apportionment of costs in partition suit rests in discretion of court. There is no technical rule governing the exact apportionment of costs in a partition suit and the subject is one for the exercise of a sound discretion in the application of equitable principles.

3. SAME-when complainant's solicitor's fee should not be paid from proceeds of sale. Where a mortgagee, made a party to a partition suit, declares a forfeiture for non-payment of interest and proves the amount due, it is equitable that some portion of the costs be paid from the proceeds of the sale even though such · proceeds are less than the amount due the mortgagee, but the deficit should not be further increased by allowing complainant's solicitor's fee to be paid from such proceeds.

4. MORTGAGES-what amounts to consent by mortgagee to sale free from lien. A mortgagee who, when made a party to a partition suit, elects to declare the mortgage due, answers setting up the forfeiture and proves the amount due, consents that the premises may be sold free from the lien of the mortgage and the proceeds of the sale be applied to payment of the debt.

APPEAL from the First Branch Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. THOMAS G. Windes, Judge, presiding.

BUTZ, VON AMMON & MARX, (FREDERIC E. von AmMON, of counsel,) for appellant.

JOHN J. HEALY, for appellees.