OPINION OF THE COURT BY CHIEF JUSTICE MILLER — Reversing.
Mordecai B. Hardin, a bachelor, of Washington county, died in March, 1915, leaving a last will and testament which was duly probated by the Washington county court.
The testator left a brother, Joseph A. Hardin, surviving him. Joseph A. Hardin had two children, Annie C. Hardin, now Goggin, and Joseph S. Hardin. Rhoda Hardin is the wife of Joseph A. Hardin, the testator's brother.
This action was instituted by the executor for the purpose of having the will construed and a settlement of the estate.
The contentions as to the interpretation of the will arise out of the 2nd, 3rd, 4th, 5th and 6th clauses thereof, which read as follows:
"2. After the payment of my said debts and funeral expenses, I will, give, devise and bequeath to my niece, Annie C. Hardin, and my nephew, Joseph S. Hardin, children of my brother, Joseph A. Hardin, all the residue of my estate, both real and personal, but said estate nor any part thereof is to be delivered to, received by, come into possession of or paid over to them during the natural life of their mother, Mrs. Rhoda Hardin, the wife of my said brother, Joseph A. Hardin, nor until after she is dead.
"3. Should said Annie C. Hardin die without lawful issue or a child or children of her own, leaving her brother, Joseph S. Hardin, surviving her, then he is to take her part or share subject to the restrictions set out in the second clause of this will. Should said Joseph S. Hardin die without lawful issue or child or children of his own, leaving his said sister surviving him, then she is to take his share, subject to restrictions aforesaid.
"4. It is my will and I so devise and direct that in the event my said brother, Joseph A. Hardin, shall have a child or children born to him by said Rhoda Hardin, or any other wife hereafter, then such afterborn child or children shall in no event or any manner whatever, either by gift, devise or inheritance or conveyance ever have or come into the possession of any of my estate.
"5. In the event both said Annie C. Hardin and Joseph S. Hardin die without lawful issue or a child
or children of their own and my said brother, Joseph A. Hardin, survives them and be without any afterborn child or children as aforesaid, then I will, give, devise and bequeath all the residue of my said estate to him, my said brother, Joseph A. Hardin. But in no event is either said Joseph A. Hardin or said Annie C. Hardin or Joseph S. Hardin or either of them to receive, take or have any of my said estate, nor shall same or any part thereof be delivered to, come into the possession of, received by or paid over to them or either of them during the natural life of said Rhoda Hardin nor until after her death.
"6. Should said Joseph A. Hardin die before his said children, Annie C. Hardin and Joseph S. Hardin, and they both die without lawful issue or a child or children of their own, then, in that event I will, give, devise and bequeath all my said estate to Silas R. Logsdon, Mordecai Logsdon, Walter Logsdon, Hattie Logsdon and Hartford Logsdon, of Washington county, children of my cousin, Mrs. Mary Logsdon, oftentimes called Nellie, widow of J. W. Logsdon, to be taken by them in equal shares and share and share alike."
The question is: Who gets the income from the devised estate during the life of Rhoda Hardin?
For the executor, it is contended that the devise of the corpus of the estate carried the income with it, and that both corpus and income vested in Annie C. and Joseph S. Hardin, subject to be divested on the happening of the conditions subsequently set forth in the will; and, that not until the happening of those contingencies will Joseph A. Hardin, the brother, take anything.
For Annie C. Hardin, who is now an adult married woman, it is contended that, there being no disposition of the use of the property during the life of her mother, Rhoda, the limitation was meaningless and void, and that Annie C. and Joseph S. Hardin took the estate at once, subject to be defeated by their deaths during the period of their mother's life; or, if she should be in error about this, she contends that the use being undisposed of, it descended under the statute to their father, Joseph A. Hardin, as the brother and heir-at-law of the testator.
The guardian ad litem contends that Annie C. and Joseph S. Hardin take a defeasible fee, the possession thereof, however, being suspended during the life of
their mother, and that the income to be derived therefrom from the death of the testator to the death of their mother, Rhoda, should be accumulated in the hands of a trustee for distribution, upon the death of Rhoda, to those who should then be entitled thereto.
The chancellor construed the will as follows:
"1. Said testator failed by his will to dispose of the use and enjoyment of his estate during the life of Rhoda Hardin, and the right to hold, possess, use and enjoy said property for said period descends, as undevised estate, to his brother and only heir-at-law, the defendant, Joseph A. Hardin.
"2. On the death of said Rhoda Hardin the estate will pass under the will to the defendants, Annie C. Goggin and Joseph S. Hardin, if they be alive at said time. If either of them die before said Rhoda, leaving no children or issue alive, then the whole of said estate will pass to the survivor. If either or both of said devisees die leaving children or issue surviving, in that event the estate devised becomes vested in them, or the one surviving and leaving issue, in fee simple.
"3. In the event that said devisees, Annie C. Goggin and Joseph S. Hardin, die before their mother, neither leaving surviving issue, and their father, Joseph A. Hardin, is still alive, then said estate will pass to him absolutely under the will, after said Rhoda Hardin's death, but in the event that he dies before the death of his said children and before his said wife, and they and each of them die leaving no surviving issue, before the death of their mother, then said property will pass absolutely to the last alternate devisees, Silas R., Mordecai, Walter, Hattie and Hartford Logsdon, share and share alike.
"4. The language in the fourth and fifth clauses of the will purporting to limit the devise to Joseph A. Hardin in the event of his having other children, tends to restrict or restrain the right of marriage and lawful procreation of children and is therefore held to be void and of no effect."
It will be observed that the chancellor was of the opinion that the will failed to dispose of the use and enjoyment of the estate during the life of Rhoda Hardin, and, that the use of it during that period descended as undevised estate, to Joseph A. Hardin, the testator's brother, and only heir-at-law. From that judgment the
executor appeals. No objection is made to the other portions of the judgment.
The purpose and intention of the testator cannot be misunderstood. The one predominant note of the entire instrument is the exclusion of all the possible takers under the second, third, fourth and fifth clauses of the will from any use of any part of the testator's property during the life of Rhoda Hardin. In the second clause the testator in unmistakable terms declared his purpose that no part of his estate should ever be delivered to, received by, or come into possession, or paid over to Annie C. Hardin or Joseph S. Hardin "during the natural life of their mother, Mrs. Rhoda Hardin, nor until after she is dead."
And, again in the fifth clause, after providing that his brother, Joseph A. Hardin should take the estate upon the death of Annie C. Hardin and Joseph S. Hardin without issue, their father, Joseph A. Hardin surviving them, the testator devised the estate to Joseph A. Hardin; but in the plainest terms, directs that "in no event is either said Joseph A. Hardin, Annie C. Hardin or Joseph S. Hardin, or either of them, to receive, take or have any of his said estate, nor shall same or any part thereof be...
