lapsed by reason of her death. The court ordered that by the true construction of the will the trust estate created by the will was given at the death of said Lizzie K. Jones to the heirs-at-law of said testator, John J. Jones, as hereinbefore set forth, and taxed the costs in the case to appellees, George E. Black and Andrew J. Fonner, complainants in the original bill.

Appellees contend that since the evidence shows that the will was drawn by Charles W. Woolverton, a lawyer of experience, the words "my heirs-at-law," used in the fifth clause of the will, in which the real estate is devised in trust, with directions "upon the death of my said wife, Lizzie K. Jones, all the trust estate created by this will shall be by my said trustee conveyed to my heirs-at-law living at the time of my death, they to take the same per stirpes and not per capita," are to be taken in their strict legal and technical sense as including all those upon whom the law would cast the inheritance in case the testator had died intestate, and therefore they included the widow, citing Crabtree v. Dwyer, 257 Ill. 101, Smith v. W'insor, 239 id. 567, and Carpenter v. VanOlinder, 127 id. 42, which hold that where technical words are used in a will they are presumed to have been used in their technical sense or meaning. This is no doubt true, but it is only a presumption adopted as a rule of construction for the purpose of aiding the courts in ascertaining and giving effect, to the true intention and meaning of the testator where the language used renders its meaning or his intention obscure. It has never been resorted to where to do so would be to defeat the intention of a testator as expressed in his will, except in those rare cases where to have held otherwise would have contravened some well established and positive rule of law.

It is fundamental that in construing wills the constant effort of the court is to give effect to the true intention and meaning of the testator as expressed by the language used in his will, and this is to be ascertained from a considera

tion of the will in all of its parts and details, bearing in mind the scope and plan of the testator as expressed by the whole will. (Heisen v. Ellis, 247 Ill. 418; Harrison v. Weatherby, 180 id. 418; Whitcomb v. Rodman, 156 id. 116; Leary v. Kerber, 255 id. 433; Mettler v. Warner, 243 id. 600.) It is equally true that cases frequently occur in which the established rules, and precedents of a more technical character are of little or no value in ascertaining the intention of the testator. (Leary v. Kerber, supra; Robinson v. Martin, 200 N. Y. 159.) In the latter case it is said: "Precedents and rules frequently have but slight value in interpreting wills, for those instruments are rarely, and in the nature of things are not likely to be, similar in When the testator's intention is obscure, resort to them may be helpful in ascertaining it. Where, upon inspection of the will and upon a consideration of the relevant facts and circumstances, an intent is apparent, all rules to the contrary must yield, provided the intent does not offend against public policy or some positive rule of law." By this intention is meant the actual, personal, individual intention of the testator, and not merely the presumptive or speculative one that may be inferred from the use of set phrases, formal words or technical words and phrases. (40 Cyc. 1389; Penyado v. Penyado, 82 Ky. 5; In re Tyson, 191 Pa. St. 218.) For the purpose of giving effect to the intention of the testator the will should be construed liberally and technical words and phrases given their usual, ordinary and commonly understood meaning, when to do so will not violate some rule or positive law of property or settled principle of public policy. (40 Cyc. 1389; Mills v. Teel, 245 Ill. 483.) Guided by these cardinal rules of construction, it becomes important to ascertain the meaning and effect of the phrase, "my heirs-at-law living at the time of my death," used in the fifth clause of the will.

The word "heirs," in its legal sense, means those whom the law appoints to take the intestate estate, and unless

restrained or qualified by the context of the will is always given that meaning. In ordinary use, however, it is frequently given a more limited sense. (Smith v. Winsor, supra.) And since the purpose of construing a will is to give effect to the intention of the testator as gathered from the four corners of the will, whenever it is apparent that technical words and phrases were not used in their strict technical sense, that meaning should be given to them which will carry out the intention of the testator. (40 Cyc. 1398; Winchell v. Winchell, 259 Ill. 471.) In 21 Cyc. 416, it is said: "Heir' is a legal term and is used in a legal sense, with a fixed legal meaning. The word has a technical signification, and when unexplained and uncontrolled by the context must be interpreted according to its technical sense or its legal import. But the word, notwithstanding its primary and well understood meaning, is susceptible of more than one interpretation, and has, in law, several significations under different circumstances, and the word 'heir,' as frequently happens, is not used in any exact or technical way. The signification of the word is in all cases a question of intention." In 40 Cyc. 1464, it is said: "The word 'heirs' in a will, when applied to real estate, primarily means persons so related to one by blood that they would take the estate in case of intestacy, and when applied to personalty primarily means next of kin or those persons who would take under the Statute of Distribution in case of intestacy. * * * Where the gift consists of both real and personal estate the word 'heirs' will ordinarily be construed as 'legal heirs' or 'heirs-at-law' as to the real estate and 'next of kin or 'distributees' as to the personal estate."

At common law an heir "is he upon whom the law casts the estate immediately upon the death of the ancestor." (2 Blackstone's Com. 201.) In Meadowcroft v. Winnebago County, 181 Ill. 504, the common law meaning of the word "heir" is stated as follows: "Heir, at common law: he who is born or begotten in lawful wedlock and upon

whom the law casts the estate in lands, tenements or hereditaments immediately upon the death of his ancestor." In 40 Cyc. 1463, it is said: "In its legal or technical sense the word 'heirs' ordinarily does not include the widower of a deceased wife or the widow of a deceased husband,"citing, among others, the following cases: Wilkins v. Ordway, 59 N. H. 378, Phillips v. Carpenter, 79 Iowa, 600, and Hanvy v. Moore, 140 Ga. 691. In the latter case it is said: "No one speaking of children speaks of his wife, in contemplation of her survivorship, as his heir, but it is believed, and it is universal, that she is referred to as his widow and his children as heirs." The widow's status, as such, is created by statute, and in the general sense in which the word is usually used and understood a widow is not spoken of as an heir. (Unfried v. Herber, 63 Ind. 67; McNutt v. McNutt, 116 id. 545.) In this State the widow does not take real estate as heir where there is a child or children or descendants of a deceased child or children. (Hurd's Stat. 1913, chap. 39, sec. I, par. 4.)

The phrase "heir-at-law" is commonly and rightfully used to indicate the heirs at common law, the next of kin by blood. (21 Cyc. 427; Meadowcroft v. Winnebago County, and Smith v. Winsor, supra.) In the latter case it is said: “It has frequently been held by this court that the word 'heirs' in a will does not necessarily have a fixed meaning. It may mean children. If it may mean children, it may also, where there are no children, mean some other one class of heirs, (not including all the heirs,) if the context of the entire will plainly shows such to have been the purpose of the testator. In the construction of a will greater latitude is allowed than in the construction of a deed, (Webbe v. Webbe, 234 Ill. 442,) and while, as above stated, the technical meaning of the word is the one which prima facie should prevail, yet such meaning will not be given effect to the extent of defeating an obvious general intention of the testator. (Blackmore v. Blackmore, 187

'Heirs' and 'heirs

In this case we are

Ill. 102; Johnson v. Askey, 190 id. 58.) at-law' are in a legal sense the same. satisfied, from all the words used in this will, that the general scheme or intention of the testator was that his heirsat-law who were of his blood should have such portion of his property as remained after the death of himself and wife. It seems plain to us that the words 'heirs-at-law' were used by the testator in their colloquial or popular meaning and not in their technical sense. This excludes the wife." The same intention is apparent from a consideration of the general plan and scheme of the testator in this case. By the third clause the testator gives to his wife, absolutely, all of his personal property, including his interest in the banking firm of Baughman, Bragg & Co. By the fourth clause she is given the homestead in Tuscola, together with all the remainder of the block upon which the homestead stood, except that part owned by one Goodspeed. The devise is in fee simple absolute, and no reason is perceived why, if it was his intention, also, that she should have an undivided one-half interest in fee in the remainder of his real estate, the same was not included in this clause instead of in the fifth clause, wherein the fee was devised to a trustee, with direction that she shall have the rents, issues and profits thereof, but under no circumstances should the trust property, or the rents, issues and profits arising therefrom, be held liable for any debts or be subject to any judgment or lien against her, and that upon her death the fee shall be conveyed to "my heirs-at-law living at the time of my death." This provision is wholly inconsistent with any intention on his part she should also have the fee simple title in an undivided one-half interest in the property thus devised in trust. No possible reason can be perceived for such provision. The absolute gift of all of the personal property, including the interest to the extent of $18,000 or more in the banking business of Baughman, Bragg & Co., forbids the assumption that it was based upon any fear of