G-ambue, Judge,
delivered the opinion of the court.
The question is presented, under the clauses of the will set out in the statement, whether a partition can now be made of the real estate. It is stated in the petition and admitted, that the widow has regularly renounced the provision made for her by the will, and that Eugenia, the youngest child of the testator, is about five years old.
As cases upon the construction of wills have but little authority in controversies which arise upon other wills, it is neither necessary nor useful to enter upon an elaborate discussion of the meaning and force of the language employed by the testator, in the present instrument.
It is obvious, from the first clauses of the instrument, that the chief design of the testator, in making a will, was, to secure to his widow and minor children, the support which, in their circumstances, he thought necessary, and that next after this object, he intended to provide for the division of his property at suitable periods. When we enter upon an examination of the provisions of the will, after reading this declara[63]*63tion of bis purpose in making it, we naturally expect to find in it, not only tbe provision for tbe support of tbe widow and minor children, during ber widowhood and their minority, but also to find tbe “ suitable periods” mentioned, when be wished tbe balance of bis property to be divided among bis children. We certainly would not expect that upon this point of a division of bis estate, be bad left tbe whole question open, so as to leave bis children to proceed as if be bad died intestate.
It is apparent that tbe testator intended, in tbe first article, to make tbe provision for bis wife and minor children a charge upon tbe “revenue” and “income” of Ms estate, and tMs charge is intended to continue, certainly as long as there are minor children. Tbe third article or section provides for leasing a portion of tbe real estate, if bis wife did not think proper to occupy it. The fifth, still keeping tbe provision for bis wife and minor children in view, as tbe prominent object in making a will, subjects tbe proceeds of bis personal property, which be directed to be sold, to tbe payment of tbe sum required for tbe support of Ms wife and minor children, if tbe interest upon money “which be bad out” and tbe general revenue of bis estate should not be adequate to that object. Tbe testator here evidently regards this interest upon money and. tbe general revenue of bis estate, as primarily and certainly charged with this burden.
In tbe sixth clause, tbe testator comes to tbe second object be bad in view, in making a will, to-wit, tbe division, “ at suitable periods,” of the balance of bis estate. He here directs that whatever amount may remain of tbe proceeds of bis personal estate, interest or money, cash on band, or general revenue of Ms estate, bis executors should proceed to divide equally among all Ms children — tbe shares of tbe minor children to be put out at interest, under tbe direction of tbe Probate Court — and tbe executors are directed to make similar dividends and distributions, annually, until tbe accounts of tbe estate are closed. This clause contemplates a division of some of tbe effects, which will be completed at once, such as “ tbe [64]*64remainder of the proceeds of Ms personal estate,” and “ cash on hand but it also provides for annual dividends and distributions, and this can only apply to the other subject mentioned in the article, “ the general revenue of his estate.” This distribution is to be of the “ remainder” of those different funds, and that remainder evidently is, what remains after the provision for his wife and minor children, during her widowhood and their minority, shall be deducted. As this provision, under the first clause, is to be “annually set apart, out of the revenue of the estate,” and as the distribution of -the remainder of the general revenue is to be made annually, the inference is natural and inevitable, that the testator designed the whole estate to be a productive fund, during the time tMs provision was to continue, unless he has expressed a different intent in some other clause.
In the eighth article, the testator has combined two objects, first, the manner in which the most valuable portion of his estate shall be made productive, and, second, the time at which his estate at large should be divided. He directs that his executors shall continue the system of leasing, which he had commenced, until his youngest child shall be of age or get married. What that system of leasing is, does not appear upon the record, but whatever it is, it is to be continued until his youngest child is of age or gets married. By necessary implication, the executors are to have the control of this property during the period they are to exercise the power of leasing it, and as, by the common meaning of the terms here employed, there is to be an annual income from the property leased, this direction is designed to enhance the “general revenue of the estate,” which is first to provide the “ annual” sum for the support of the wife and minor children, and after that is accomplished, the remainder is to be divided equally among all the children, under the sixth article.
The second object to be accomplished, under tMs eighth article, is the general division of the estate, and the “ suitable period” for this, is, the majority or marriage of the young[65]*65est child, ££ if not sooner.” The whole argument, in. favor of an immediate partition, rests, upon these words, ££ if not soon-erf and it is insisted that they must have effect given to them, in ascertaining the intent of the testator. It is true, that in construing a will, effect must, if possible, be given to all the words of the testator, and none must be rejected, unless there is an irreconcilable repugnance. It is to be observed, that the testator’s design, as declared in the preamble to his will, is, in relation to the matter of dividing his estate, to ££make an equal division,” at ££ suitable periods,” of the balance of his estate, amongst all his children. This design is only to be carried out by affirmative declarations of the periods at which the division is to be made. If the will were silent as to the times, the testator might be supposed to have forgotten one of the main objects he had in view, in making the will; but if there be in the instrument any language, indicating the periods, such language must receive the construction which will give effect to his general intent. If the words ££ if not sooner” were not in this clause, it is not supposed that there could be any doubt that the testator’s intent was, that the general division should take place, when the youngest child attained majority or married. Does the insertion of these words express any different active intent ? It is not sufficient that the mind of the testator contemplated a probability that a division might be sooner made; the question is, whether he has expressed an intent that it should be sooner made. It is plain, that the clauses, which make provision for the wife and minor children, and which are to be satisfied out of the annual revenue of the estate, suppose it will beheld together as a productive fund, at least during the minority of the children, and this eighth clause fixes the period for the division, at the time when the youngest of those minors shall have attained to majority or married.
Taking the whole of these clauses together, it is not supposed to be in any degree doubtful, that the general intent of the testator was to postpone a division of his estate, during the
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G-ambue, Judge,
delivered the opinion of the court.
The question is presented, under the clauses of the will set out in the statement, whether a partition can now be made of the real estate. It is stated in the petition and admitted, that the widow has regularly renounced the provision made for her by the will, and that Eugenia, the youngest child of the testator, is about five years old.
As cases upon the construction of wills have but little authority in controversies which arise upon other wills, it is neither necessary nor useful to enter upon an elaborate discussion of the meaning and force of the language employed by the testator, in the present instrument.
It is obvious, from the first clauses of the instrument, that the chief design of the testator, in making a will, was, to secure to his widow and minor children, the support which, in their circumstances, he thought necessary, and that next after this object, he intended to provide for the division of his property at suitable periods. When we enter upon an examination of the provisions of the will, after reading this declara[63]*63tion of bis purpose in making it, we naturally expect to find in it, not only tbe provision for tbe support of tbe widow and minor children, during ber widowhood and their minority, but also to find tbe “ suitable periods” mentioned, when be wished tbe balance of bis property to be divided among bis children. We certainly would not expect that upon this point of a division of bis estate, be bad left tbe whole question open, so as to leave bis children to proceed as if be bad died intestate.
It is apparent that tbe testator intended, in tbe first article, to make tbe provision for bis wife and minor children a charge upon tbe “revenue” and “income” of Ms estate, and tMs charge is intended to continue, certainly as long as there are minor children. Tbe third article or section provides for leasing a portion of tbe real estate, if bis wife did not think proper to occupy it. The fifth, still keeping tbe provision for bis wife and minor children in view, as tbe prominent object in making a will, subjects tbe proceeds of bis personal property, which be directed to be sold, to tbe payment of tbe sum required for tbe support of Ms wife and minor children, if tbe interest upon money “which be bad out” and tbe general revenue of bis estate should not be adequate to that object. Tbe testator here evidently regards this interest upon money and. tbe general revenue of bis estate, as primarily and certainly charged with this burden.
In tbe sixth clause, tbe testator comes to tbe second object be bad in view, in making a will, to-wit, tbe division, “ at suitable periods,” of the balance of bis estate. He here directs that whatever amount may remain of tbe proceeds of bis personal estate, interest or money, cash on band, or general revenue of Ms estate, bis executors should proceed to divide equally among all Ms children — tbe shares of tbe minor children to be put out at interest, under tbe direction of tbe Probate Court — and tbe executors are directed to make similar dividends and distributions, annually, until tbe accounts of tbe estate are closed. This clause contemplates a division of some of tbe effects, which will be completed at once, such as “ tbe [64]*64remainder of the proceeds of Ms personal estate,” and “ cash on hand but it also provides for annual dividends and distributions, and this can only apply to the other subject mentioned in the article, “ the general revenue of his estate.” This distribution is to be of the “ remainder” of those different funds, and that remainder evidently is, what remains after the provision for his wife and minor children, during her widowhood and their minority, shall be deducted. As this provision, under the first clause, is to be “annually set apart, out of the revenue of the estate,” and as the distribution of -the remainder of the general revenue is to be made annually, the inference is natural and inevitable, that the testator designed the whole estate to be a productive fund, during the time tMs provision was to continue, unless he has expressed a different intent in some other clause.
In the eighth article, the testator has combined two objects, first, the manner in which the most valuable portion of his estate shall be made productive, and, second, the time at which his estate at large should be divided. He directs that his executors shall continue the system of leasing, which he had commenced, until his youngest child shall be of age or get married. What that system of leasing is, does not appear upon the record, but whatever it is, it is to be continued until his youngest child is of age or gets married. By necessary implication, the executors are to have the control of this property during the period they are to exercise the power of leasing it, and as, by the common meaning of the terms here employed, there is to be an annual income from the property leased, this direction is designed to enhance the “general revenue of the estate,” which is first to provide the “ annual” sum for the support of the wife and minor children, and after that is accomplished, the remainder is to be divided equally among all the children, under the sixth article.
The second object to be accomplished, under tMs eighth article, is the general division of the estate, and the “ suitable period” for this, is, the majority or marriage of the young[65]*65est child, ££ if not sooner.” The whole argument, in. favor of an immediate partition, rests, upon these words, ££ if not soon-erf and it is insisted that they must have effect given to them, in ascertaining the intent of the testator. It is true, that in construing a will, effect must, if possible, be given to all the words of the testator, and none must be rejected, unless there is an irreconcilable repugnance. It is to be observed, that the testator’s design, as declared in the preamble to his will, is, in relation to the matter of dividing his estate, to ££make an equal division,” at ££ suitable periods,” of the balance of his estate, amongst all his children. This design is only to be carried out by affirmative declarations of the periods at which the division is to be made. If the will were silent as to the times, the testator might be supposed to have forgotten one of the main objects he had in view, in making the will; but if there be in the instrument any language, indicating the periods, such language must receive the construction which will give effect to his general intent. If the words ££ if not sooner” were not in this clause, it is not supposed that there could be any doubt that the testator’s intent was, that the general division should take place, when the youngest child attained majority or married. Does the insertion of these words express any different active intent ? It is not sufficient that the mind of the testator contemplated a probability that a division might be sooner made; the question is, whether he has expressed an intent that it should be sooner made. It is plain, that the clauses, which make provision for the wife and minor children, and which are to be satisfied out of the annual revenue of the estate, suppose it will beheld together as a productive fund, at least during the minority of the children, and this eighth clause fixes the period for the division, at the time when the youngest of those minors shall have attained to majority or married.
Taking the whole of these clauses together, it is not supposed to be in any degree doubtful, that the general intent of the testator was to postpone a division of his estate, during the [66]*66period that the revenue was charged with the support of his minor children. The words, “ if not sooner,” express no contrary intent. If they do, then, as they indicate no time at which partition is to be made, they leave the whole estate subject to partition by law at once ; they cut off the powers given to the executors, to make the estate productive, by leasing it; they extinguish the eleventh section, which directs the executors to sell valuable portions of the real estate, and annul the sixteenth section, which confers a discretionary power on the executors, to sell the portions which they were previously directed to lease.
Such a construction is not to be given to these words, in the present case. As has been said before, they do not express any wish or intent of the testator. They are not, therefore, repugnant to any clause which affirmatively expresses his intent. There is no necessity for rejecting them, in order to give full effect to every intent of the testator. They occupy no other position and have no other effect, than merely to express the thought in the testator’s mind, that a partition might take place sooner, under some circumstances, than the time at which he declared it should be made. If the youngest child should die a minor and unmarried, all the other children being adults, they and the widow might make a partition.
This would not be a partition under the will, and yet it would not be inconsistent with the will; and still it might take place at an earlier day than the youngest child would have attained to majority.
It is said, resort is not to be had to conjecture, in order to ascertain the intent of the testator, in using the words, “ if not sooner.” If the words, in themselves, or in the connex-ion in which they stand, expressed any intent of the testator, any design, or direction, as to the time at which partition is to be made, there could be no conjecture indulged, by which they should be made to refer to any other time than that in the mind of the testator ; but when they have no such force, when they form but a parenthesis in the sentence in which they stand, we [67]*67are compelled to ascertain tbeir meaning, by supposing tbe cases to wbicb they refer. Accordingly, the counsel for the plaintiff supposes the clause ought to be read, as if it were in this form : £ ‘ that partition shall be made when the youngest child is married or arrives at the age of twenty-one, if it has not been sooner effected and then, it is conjectured, that the words, “if it has not sooner been effected,” mean, that the testator intended, that from the time of his death until the time when the youngest child should attain majority, the whole estate was left open to have partition made, as in case of intestacy, and that the scope and meaning of the clause is, a command, that if partition has been neglected so long, it shall certainly be made at that time. It is not thought that this is a correct construction of the language here employed. The whole will, in all its clauses, and in the intent of each clause, is at variance with the position that partition could be made immediately upon the death of the testator. The renunciation of the widow of all interest under the will, does not alter the intention or change the force of the language used by the testator. The provision made for the support of the minor children, is not lost by that renunciation. This is not a bequest to the widow of an annuity for the support of herself and the minors. The first article of the will no more vests an interest in the widow, than in the children. A sum is annually to be set apart out of the income of the estate, for the purpose of this support; but this differs entirely from a direct bequest of a specific sum to a widow, declaring the purpose to be, for her support and for the education and support of children, as was the case of Hawley v. James, 5 Paige R. 457. There, the legacy became lapsed, by. the refusal of the legatee to take under the will; but here, we have a will, directing a sum to be appropriated annually, for the benefit of the widow and minor children, and the legacy directly bequeathed to neither, although the fund is to be disbursed by the widow.
Upon the whole case, the judgment of the Circuit Court must be affirmed.