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Then, it is secondly said, that "in the nature of things," no division could be made if the widow had taken under the will. The reason given is that a part of the estate would be outstanding for her use during her life, and no division could be made until that life interest fell in! Certainly, that is right. It is consonant with reason, and with the terms and scheme of the will. But would not one infer from this language of the learned judge below, that the renunciation of the widow had removed this difficulty, which, "in the nature of things," prevented a division of the estate? And is that true? If she had taken under the will, she would now be holding out a quarter of a residence block as a homestead, and an annuity of $10,000. This annuity might have been provided for as was done in Sears v. Hardy, 120 Mass., 529, in the supreme court of Massachusetts, by setting aside a portion, say $200,000, of the personalty of this estate, invested in such securities as are directed by the will. Then the rest of the estate would be disengaged. But now she is holding outstanding for her lifetime one-third of all the realty of this estate. In the lands in Illinois, her dower has been assigned; but in valuable lands in several counties in Wisconsin, dower has not been assigned. These lands are still charged in every part with the widow's life estate. Nor can they be freed by any process more simple than that by which, as in Sears v. Hardy, all the lands of the estate might have been freed from their charge for the annuity. Every impediment in the nature of the testamentary estate is magnified ten fold in the statutory estate. No one reading this judgment below would learn, or suspect, that the failure of this testamentary proposal, so far from removing the impediments to division, emphasized by the court, left the estate complicated in a far greater degree with the same impediments arising from the statutory estate. Nor would one learn that in this will there is no gift to any one, except in the direction to distribute, so that no one is a donee, except such as may be present, capable to take at and through the distribution; and we are justified to charge error in a judgment which can only be made superficially plausible, by putting

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out of sight not only the whole form of the only gift by the will set up by the claimants, but also all the facts concerning the alternative estate taken by the widow. It is plain, therefore, upon the express words of the will, and upon all the considerations of reason presenting themselves to the testator, that this time of distribution is appointed not merely after the termination of the testamentary estate, if we are to regard estates at all, but after the termination of that more substantial statutory estate of the widow, for which the former was but a proposed substitute. This is the meaning of the provision, occurring wherever there is occasion for it throughout this will, that every gift or interest failing by lapse or otherwise before the time of final distribution, shall revert to the mass of the estate; no remainder in it being limited to any one until at and through the final distribution.

It must be agreed, that if the testator knew the right of the widow to retain her statutory estate, then he had equally in view the contingency that she might retain that estate, and the contingency that she might accept the testamentary substitute tendered her. If that be so, then he made the directions of this will, appointing the time of distribution and the class within which that distribution should be made, in equal view of both contingencies, and intended those directions to govern equally in either. The provisions fixing the time of distribution are perfectly explicit in the will, and they must govern, and must have been intended to govern in both contingencies, if it appears that the testator knew and contemplated both when he made the provisions. That he did so, admits of no doubt.

The widow's right to hold to her dower estate was created by law, existing when the testator made the will. But every man is presumed to know the law, and until the contrary is affirmatively shown, it must be presumed the testator knew his widow might claim her statutory estate; and that he directed the provisions of his will to that contingency. The plain words of this will were employed by him with reference to the precise event that has occurred.

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Turning to the will itself, what do its provisions indicate, as to how far the testator had in view the contingency that the widow would claim her statutory estate? Upon page 13 of the abstract he makes the provision he tenders for her benefit. The language is:

"It is my will and desire to make provision for my beloved wife, "JULIA BUTLER Newberry, provided she consents to accept of the same "in lieu of and instead of her dower right, and all other right, claim "and demand to my estate or any part thereof, in the following man

"ner :

Did he not know she might not consent? Then he offers her an annuity and a life-estate in one-quarter of the block that constituted his homestead.

This provision alone would, under the statute, have put the widow to her election, but the testator, not trusting to that alone, puts her expressly to an election, and gives her the interest only, provided she consents to accept in lieu of her statutory rights in the estate. Men do not give in the alternative without consciousness that there is an alternative.

But this is not all. After declaring the provision he desires to make, he presents the very alternative to which it is pretended his words do not relate. Having first said what she may have if she will accept the condition, he reverses the case, and presenting the alternative, declares that if she will not consent to the condition she shall have nothing. He says:

66 None of the aforegoing provisions for the benefit of my wife shall "be operative or have any effect, but the same shall all and singular be 'inoperative and void, unless she shall, within twelve months after my decease, relinquish in due form of law, all" claim to my estate.

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Did he not contemplate the event that occurred, namely: that she might renounce the will and hold to her statutory estate? If he did, it is impossible not to understand that his language appointing the time of final distribution is directed as much to the statutory estate as to the testamentary substitute for it.

If, instead of renouncing, the widow had accepted the substitutional estate proposed by the will, counsel might have argued,

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with more force than they have been able to do in the present case, that her taking the testamentary offer was not what the testator anticipated she would do; that his language fixing the time of distribution related to her substantial statutory estate, with its impediments to distribution; that that estate being extinguished by the acceptance of the testamentary substitute, the reason of postponement was removed, and they had become entitled to immediate distribution of an accelerated estate. The testator seems to have thought it the more probable chance his widow would decline his offer. If she had accepted his provision, they might have contended for the same result they now insist upon; for the terms of the will are perfectly explicit concerning distribution, and apply to one alternative as clearly as to the other. There would be less violent wrenching of the terms of the will required, and there would be no more, but the same, words and clauses to be suppressed or construed away.

But the clauses relating in the will to the final distribution, have no connection with those relating to the widow's estate; and the language of the testator appoints the distribution upon the death, simpliciter, of the last member of his family.

It is not difficult, therefore, to ascertain who are the donees under this will. The gift is to those descendants of testator's brothers and sisters surviving at the appointed time of distribution. That distribution is appointed at the death of Mrs. NEWBERRY; or, if the words of the will are to be connected with any estate of hers by construction, for in terms they are not so, that estate must be that primary,statutory one which the testator found existing when he came to make this will. It is that which prohibited then and prohibits now, any distribution of the entire estate by the trustees at once to the ultimate donees, such as is directed by the will. For that the testamentary interest was but a substitute proposed for the convenience of Mrs. NEWBERRY, and of the administration of the trust.

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II.

Now, the theory which has governed this judgment below is this: That the part of this estate claimed by appellees, vested in them in interest at the death of JULIA, the possession being postponed by the testamentary life interest offered Mrs. NEWBERRY by the will in lieu of her dower estate; that this substitution having been declined by her, the antecedent life estate impeding distribution was removed, and these persons became, by the rule of acceleration, entitled to immediate distribution of the already vested interests. Upon this question of vesting, at the death of JULIA, the acceptance or rejection of the will by the widow is immaterial. The interests limited over must vest at the same time under this will, whether the enjoyment and possession are postponed or not. The case of appellees, if supported at all must be supported by these two theses of vesting and acceleration. We believe it matter of demonstration, that both are impossible. Then see :

WHETHER, UNDER THE LIMITATIONS OVER IN THIS WILL, ANY ESTATE WAS VESTED BY THE DEATH OF JULIA NEWBERRY?

If so, it was vested by the force of either an actual intent sufficiently declared in the will; or of rules of construction ascertaining such intent, not apparent without their aid.

The learned judge in the circuit court found by a special intent in this will that the interests limited over vested at the death of JULIA NEWBERRY; and rested that judgment upon two supposed indications, viz:

I. The regard shown by the testator for his own name and blood, represented in the persons of the present appellees;

2. The force of the words, “surviving,” and “ survive,” in the other cases where it is used in the will;

To these is added the principle that the law favors the early vesting of estates in those to whom they are given; but this is a rule of construction, and not an index of a special intent of the

testator.