The opinion
*476 Dissenting Opinion.
Wiley, C. J. —
Appellees have petitioned for a rehearing and have based the same upon six grounds, viz.: (1) That the court erred in construing the statute of the State concerning the adoption of children; (2) that the court erred in construing the will of John Miles; (3) that the court erred in holding that the word “children”, as used in the will, meant and included the adopted child (appellant) of the testator’s .daughter, Martha Walker; (4) that the court erred in that it did not, in the construction of the will, give effect to the intention of the testator, but on the contrary defeated his intention; (5) that the court erred in holding that appellant is a devisee or legatee of the testator, John Miles, and (6) that the court erred in adjudging that the facts specially found entitled appellant to judgment.
The petition for a rehearing is supported by a very able brief, and in view oí the fact that the majority of my associates still adhere to the conclusions reached in the prevailing opinion, and hence affirm as the law the several propositions thereby established, I deem it important and proper to make some additional observations upon the very important and interesting questions at issue. I am so thoroughly convinced that the rules announced in the prevailing opinion are in conflict with the law, as established by the great weight of authorities, that I can not let them pass without more fully expressing my views.
In my original dissenting opinion I stated that the construction placed upon the will .of John Miles in the majority opinion was so foreign to the manifest intention of the testator, as plainly expressed by his whole will, that violence was thereby done to such intention; and also to hold that under the will appellant was entitled to share in the residue of the estate to which Martha Walker would be entitled, if living, was to hold that it was the manifest intention of the- *477 testator, from the will itself, to give to her who was alien blood to him, an entire stranger, in fact not in legal existence at the time the will was made, an equal share of his estate. Upon a reexamination of the authorities, and a careful consideration of the argument, both in the original briefs and the briefs in support of the petition for a rehearing I am more strongly convinced than ever that the authorities will not support the construction given to the will, nor the construction given to the statute, so that the word “children”, as used in subdivision twelve, embraced, or was intended to embrace, an adopted child. As to the cardinal rule for the construction of a will, viz., that the intention of the testator must prevail, my associates and myself fully agree. As Judge Redfield says: “The intention of the testator is the polar star.” Our point of divergence is in interpreting the will as to what the intention of the testator was in the language used in subdivision twelve taken in connection with the whole will. My contention here is that my associates departed from that rule, so well established, and instead of giving effect and force to the intention of the testator, frustrated and confounded it. By the majority opinion, the clear intention of the testator, as gathered from the entire will, as it seems to me, has .been diverted, and a large portion of his estate given to one of alien blood, upon which it was not his intention that his will should operate, or upon whom his bounty should descend. It seems perfectly obvious to me that when we read the twelfth subdivision of the will in connection with and in the light of the whole will, and especially the third item or subdivision, that it was the manfest intention of John Miles to provide for a designated class of persons, who were to be objects of his bounty, and that the class thus provided for was composed of those who were of his own blood. By his will, he was making provision for such class of persons, and it was upon them that his mind was fixed. He did not contemplate making provision for strangers, or aliens, and to construe the will differently is not *478 only reading something into the will that is not there, but it is also reading something into the will that the testator had no intention of putting there, or that should be there. As I tried to show in my original dissenting opinion, .and think that I did show, the will, as a whole, plainly expresses the intention of the testator, and that intention- was to provide for those of his own blood. This fact is made doubly plain and specially clear and certain by the following clause in item three, viz.: At the death of said Martha and Columbus Walker, the lands aforesaid shall descend to my heirs at law.” If it was the intention of the testator that a possible adopted child of Martha should share in his estate, why did he not provide that certain real estate should go to her in a certain contingency, as well as that she should share in the residue of his personal estate? It is clear that by the adoption- of the appellant by Martha Walker, she (appellant) did not become the heir of Martha Walker’s father, though by the adoption she did become her heir. A will should be construed so as to make all of its provisions harmonious and consistent, and so as to carry out the general scheme of its author. A construction which will create inconsistencies is not.allowable.
In Jackson v. Hoover, 26 Ind. 511 , the court quoted approvingly from Jarman on Wills as follows: “That all parts of a will are to be construed.in relation to- each other, and so as, if possible, to form one consistent whole. Courts will look to the circumstances under which the devisor makes his will, as the state of his property, of his family and the like.” In no sense could the heirs of Martha Walker be the heirs of John Miles, unless they were of his blood. When he used the-words “my heirs at law”, he meant simply what the law implies, — heirs of his own blood. It is only by extending the word “child” far beyond its primary, etymological and legal signification that it can be held that John Miles said by -his will, and thereby intended to say, that a child of an entire stranger to him was to him his daughter’s child in the sense of being entitled to share in' *479 his will -under subdivision three thereof. She was not the child of the child of the testator within his meaning that she should be one of his beneficiaries. Appellant is not a descendant of the father of Martha "Walker, for she is not of his blood, but is of the blood of strangers. And not being a descendant, she can not, as to him, be a child of his daughter, -within any ■ reasonable or legitimate meaning of the word “child” or “children”. Again, by reference to item two of the will, which I need not here repeat, as the will appears in full in my former opinion, it will be seen that its provisions further exhibit and make plain the intention that was foremost and dominant in the mind of the testator in the execution of his will only to maké provision for those of his own blood and to whom he was united by natural affection. I assert without fear of successful contradiction that there is not a single clause, word, or sentence in the whole will that even indicates a remote intention on the part of John Miles, to bestow any part of his estate upon any one, except those of his own blood, unless it be the use of the word “children” in item twelve. On the contrary, every word, clause, and sentence in the will, and the circumstances and conditions that surrounded him when it was executed, point with unerring certainty to the fact that his intention was to bestow his entire estate in just and equitable proportions, only upon those of his own blood. Nor do I concede that the word “children”, as used in item twelve, and as meant by him, as shown by the entire will, included or was intended to include any one else. Why would he make a liberal provision for appellant, who was an entire stranger to him; who was not in legal existence, and who could not have been in his mind? Can a person intend to include one in his will who does not exist, except when its provisions are broad enough to embrace one subsequently and legitimately born, to which such provisions would apply and upon whom they would operate? Can a person by his will intend to bestow a bounty upon a. person who is a stranger to him, and *480 who is not in his mind when such will is executed? If my learned associates will satisfactorily answer these inquiries within the light of the will of John Miles, and all the authorities, then I will yield the point and believe what now seems to be impossible. The very word “intention” itself is conclusive, it'seems to me, that in the majority opinion the intention of the testator has not been carried out, but on the contrary perverted. The meaning of the word as defined by lexicographers is plain and unequivocal. In defining the word, Webster says: “A stretching or bending of the mind toward an object; closeness of application; fixedness of attention.” Again: “A determination to act in a certain way, or to do a certain thing; design.” 1 And again: “The object toward which the thoughts are directed; end; aim.” Mr. Locke says: “Intention is when the mind, with great earnestness, and of choice fixes its view on any idea-” Locke on Human Understanding, 11, xix 1. As defined in the Century Dictionary, p. 3386, intention is “that which is intended, purposed or meant; that for which a thing is made, designed or done.”
Taking the meaning of the word as thus defined, how is it possible, within the light of the authorities, to single out the word “children” in item twelve, and conclude that appellant was one toward which the testator’s mind was1 directed; or that with great earnestness, and of choice, his mind fixed its view on appellant, when he executed his will? Yet this must be done before appellant can be included in the word .thus used. Such reasoning is seems to me is paradoxical. To go entirely outside of the meaning of the word “children”, and against the unmistakable evidence of the intention of the testator, as expressed by the general terms and provisions of his will, it appears to me that there is neither reason nor legal precedent by which the court can single out a detached and isolated word, or provision, and by that declare that because the testator used the word “children” he meant to go outside of the class of persons hé uni *481 formly embraced in all the other provisions of his will, and thereby include and place upon an equality with such class, who were all of his own blood, a person who was without kinship, and the offspring of strangers. If I have a fair conception of the law relative to the construction of wills, the construction which my associates have given to- the will under consideration is indefensible.
In Edgerly v. Barker, 66 N. H. 434, 28 L. R. A. 328, the court on page 449 used the following language: “Correct construction is not insured by correct views of the law. A testator’s right to use the words in the sense in which they are commonly understood may be infringed when that sense is not known to his judicial interpreters, or is disparaged by their educational bias. The professional and official sense sometimes introduced by construction is in effect a scholastic dialect not used by the mass of the people.” As I showed in my former opinion, the intention of the testator, as gathered from the will itself, when the will is read in the light of the circumstances and environments at the time of its execution, is in the last analysis and in every instance the objective point of judicial inquiry. The law will not deny to the reader of an instrument the same light that the writer had. In view of this rule, the inquiry naturally suggests itself, what did the word “children” mean to John Miles, when he signed the will? I have no doubt, in the light of the whole will, and the circumstances and, environments that surrounded him, that it ineant to him just what the ordinary man understands it to mean, and, as used by him, it meant the natural offspring of his children. It certainly did not mean to him artificial children. ~We can not presume that he employed the word in any technical or professional sense. There is an expression in the Bible to the effect that the sins of the father shall be visited upon the “children’s children to the third and fourth generations.” If we construe the word in the light of the prevailing opinion, then the sins of John Miles are to be visited upon the adopted child *482 of his .daughter and upon her children’s children. The clause of the will that has given rise to the contention here is itself explanatory of what the intention of the testator was. It is: “And in the event of the death of any of the last' above named [meaning Thomas, John, and Samuel Miles, and Martha Walker, his only sons and daughter], the shares due such as may be deceased shall go to the children of such deceased person, if there be children, and if there be no children then such share shall go to the survivors.” The words which precede those I have just quoted show a distinct and emphatic purpose of the testator to keep his property in the line of his own blood. Without extended comment, 1 refer to some authorities to show that the word “children” means natural offspring. Jarman on Wills, Vol. 2, p. 690; 2 Redfield on Wills, p. 15. In Williams on Executors, Vol. 2, p. 362, in a note, it is said: “Neither does the word ‘children’ embrace a child adopted under a statute providing for such adoption.”' See, also, Russell v. Russell, 84 Ala. 48 , 3 South. 900 . Neither are stepchildren included in the word children. Barnes v. Greenzebach, 1 Edw. Chan. 41. Beach on Wills, §279, says: “A gift to children, if there be children in existence, does not include grandchildren nor stepchildren nor adopted children.” See, also, Douglas v. James, 66 Vt. 21 , 28 Atl. 319 , where it is said: “We recognize the rule that in construing wills, the word ‘children’ is deemed to have been used in its popular sense, that is, as signifying descendants of the first degree.” In Ward v. Cooper, 69 Miss. 789 , 13 South. 827 , a devise was made “to the children of my sister.” . The court said: “Onlypfche immediate offspring of Barthenia Guinn were entitled to take under the will, since the gift is to ‘children’, and a broader than the primary signification of the word is not given to it by the will.” Her children were the class designated to take by the will. Also, see, Wylie v. Lockwood, 86 N. Y. 291 , to the same effect. Cummings v. Plummer, 94 Ind. 403 , 48 Am. Rep. 167 , which I cited in my former *483 opinion, is directly in point. While many additional authorities in line with the above, and in harmony with those cited before, might be cited, it seems unnecessary to do so.
When we consider the meaning of the word “children” to be natural offspring, as fixed by law writers and judges of great learning, and as used by the sages of the law for centuries, it does not appear to me that when John Miles, who was ignorant of the law and unversed in its technicalities, but who used the word as he understood it, and in its primary, usual, and ordinary sense, such meaning as he gave it should be allowed to stand, and that his intention, as expressed by his will, ought not to be subverted by a forced and technical construction.
Appellees’ reasons for a rehearing are, in my judgment, well taken, and the petition should be granted.