court of equity is, it is nevertheless within the limits of the statute law of the state, and the chancellor is as much bound to obey that law as is the judge in a law court. But a court of equity, exercising its ancient jurisdiction uninfluenced by the statute above quoted, would not make partition at the suit of a devisee in express violation of the will. A court of equity would no more at the suit of a devisee require a trustee, in violation of the will, to encumber or sell a part of the trust property merely to render the rest more profitable, than it would at the suit of a prospective heir require a man to improve his own estate or protect it from decay." That the statute in hand applies to equitable partition is suggested in Evans v. Blackiston, 66 Mo. 437.

That equity follows the law is illustrated by the proposition that equity courts will follow and enforce the statute of limitations: Burrus v. Cook, 117 Mo. App. 385, 93 S. W. 888. We refer to the dissenting opinion of Ellison, J., in that case, since it was held a correct pronouncement of the law when the case came here on his dissent: See Burrus v. Cook, 215 Mo. 496, 114 S. W. 1065.

The very rights asserted by plaintiff arise alone under the will of Patrick Henry Jones-i. e., no will, no rights in him. The Carson children were not heirs at law of Patrick; they took under the will. The widow took under the will; not otherwise. Plaintiff stands in their shoes-ergo, plaintiff takes under the will or not at all. He must take, therefore, cum onere, the bitter with the sweet in its provisions, and he cannot, by going into equity, hold any rights in the homestead free from the valid limitations and restrictions 639 of that instrument. It follows him into a court of conscience like the skeleton in Holbein's Dance of Death, and confronts him at every step.

It follows that sections 4383 and 4650, supra, must be held to apply to the subject matter of this litigation, and we so hold. Any other view would trample down the plain law.

3. It is hornbook doctrine that the intention of the testator-not from one word, but from all the words; not from one corner, but from the four corners of the will-is the touchstone of judicial interpretation of a will. That, also, is the statutory rule: Sec. 4650, supra. In getting at testator's intention and giving effect to his intendment, a court, called upon to interpret his will, puts itself as nearly as may be in his environment, stands in his shoes, and looks with his perspective through his eyes.

With which generalization, we come to the next question in logical order, viz.: What was the object and intention of testator as evidenced by his will?

It is alleged in the petition and argued by counsel for respondent at our bar that the sole object of testator was to provide a home for his widow, Eliza. That his only purpose in postponing a sale of the homestead was to provide such home for her. The conclusion drawn is that as such object has been subserved, after the widow has parted with her home, equity will not concern itself to maintain the status quo, but will sell the land in advance of the period named in the will and divide the proceeds: Hamlin v. Thomas, 126 Pa. 20, 17 Atl. 506.

But the learned counsel, through inadvertence, argues unsoundly, we think, by assuming a premise not true. Patrick Henry's will does not say that his only object was to preserve a home for his widow. That may well have been one of his objects, but not the only one. He knew his widow, in the course of nature, would be likely to survive him a term of years. He owned a 640 valuable homestead on the edge of an ambitious and growing town, long of slow or no growth, but on the verge of rapid expansion. Who shall say he did not anticipate the growth of that town and the rise in the value of suburban property presently, just as has happened? We find such an object commented upon in the case of Loomis v. McClintock, 10 Watts, 274, and by Gibson, C. J., in Styer v. Freas, 15 Pa. 339. With that in view, he makes it contrary to his will to partition his homestead among those participating in his bounty until the happening of a certain event, to wit, Eliza's death. When that time arrives, his daughter, Cora, takes, or (if she be dead) her own daughter, Mary, takes, and if both be dead, then the Murray children take her per capita share. When that time arrived, if there were no Carson children alive and no one to inherit through them, there would have to be a different alignment of takers. Shall we say that this testator did not mean that this property should be held intact in anticipation of increasing value until the event of Eliza's death, when the definite takers would be settled and determined by the will? Or shall we say that equity will seize the situation as of the year 1905 and divide the proceeds among those then alive? If we say the latter, and, if when Eliza dies the property would then have passed to different takers, had the will been obeyed, have we not flown in the face of the intent of the testator and made it impossible to perform the will? It seems to us plainly so.

Am. St. Rep., Vol. 131-39

It is argued that Cora holds the naked legal title in the homestead, subject to the life estate, under the residuary clause of the will in trust, awaiting the execution of the power donated by the will, that the trust has become unprofitable, and equity should end it, as was done in Donaldson v. Allen, 213 Mo. 293, 127 Am. St. Rep. 601, 111 S. W. 1128. Let us see about that. It seems to be profitable to Mrs. Tillery and those interested with her. The land is rising on the market; the plaintiff, as life tenant, voluntarily assumed 641 the burden of repairs and taxes. In this condition of things, it may be profitable to him to at once bring this situation to an end and to have commutation of the life estate in a large lump sum, which he may put in his pocket, and to have five-sixths of the remainder given to him as assignee of the Carson children; but this situation he brought on himself-he went into it with eyes wide open, in "a hazard of new fortune," and it creates no condition appealing persuasively to a chancellor. Clearly he is not entitled to a sale and division if the widow, Eliza, and the Carson children were not entitled to one, and, if we should hold that they were so entitled prior to the time appointed by the will, we would be making a new will for Patrick Henry Jones. He seems to have been quite capable of making his own, and we will give effect to it.

4. What we have said disposes of the case. Questions relating to equitable conversion and equitable reconversion seem to us afield. The right to elect to reconvert into real estate under certain conditions and thus avoid a sale under the power in a will treating real estate as converted into money, discussed in Williams v. Lobban, 206 Mo. 399, 104 S. W. 58, is not controlling in this case. In the Williams case those who were to take under the will were definitely determined by its terms. Without awaiting the execution of the power of sale, all the beneficiaries but one sold. His interest passed by execution sale under the ruling in Eneberg v. Carter, 98 Mo. 647, 14 Am. St. Rep. 664, 12 S. W. 522. It was held, in effect, that though the estate by the terms of the will was subject to the doctrine of equitable conversion, yet that all the beneficiaries had elected to reconvert it into real estate by their several sales and deeds made; and that a grantee, holding under mesne conveyances, held the land freed from the power to sell 642 donated to the executor by the will. It is manifest that the Williams case (206 Mo. 399, 104 S. W. 58) is not this case.

As we read the Mandlebaum case (29 Mich. 78, 18 Am. Rep. 61), somewhat relied upon by plaintiff, that is not this case. That case was on all-fours with the Williams case, and, in discussing the principles of law underlying the judgment rendered, Christiancy, J., pointed out that the question did not involve a will limiting the property over to another. On page 89 he said: "The estate devised is not a conditional one to be forfeited or to revert to the heirs of the testator, or to go over to others on a breach of the restrictions, nor one which is to vest at some future day, or upon the happening of some future event, but an absolute vested remainder or estate in fee, and though not to come into actual enjoyment until the death of the widow, to whom a life estate is given, it is just as much vested and the devisees have just as much right to sell the interest or estate devised as if there had been no intervening estate for life. And the question of validity of the restriction is, in my view, precisely the same in all its legal aspects as if no life estate had been given to the widow but the whole had been given in fee directly to those devisees, as an absolute estate in fee and in possession, with the same provisions restricting the power of sale."

The Mandlebaum case, it seems to us, lends no countenance to the contention of plaintiff, because the will there is essentially different from the will here. The same may be said of the wills in judgment in the Sikemeier case (124 Mo. 367, 27 S. W. 551), and the McQueen case (131 Mo. 9, 31 S. W. 1043).

I am inclined to the individual opinion that one part of the beneficiaries under a will such as this have no right to elect to reconvert an estate, equitably converted into money, back into real estate, and have their election enforced in equity, but the point is not necessary to the case, and, therefore, is reserved.

643 Neither is it necessary to decide whether the defendant Jones, by virtue of his discharge as executor in the probate court, has lost the power of making the sale, for, if he has not lost that power, then he can make it when the time arrives. If he has lost it, then it may be that a court of equity, rather than see a trust fail for want of a trustee, will appoint one to execute the power. Or it may be that, under section 137, Revised Statutes of 1899, reading, that: "The sale and conveyance of real estate under a will shall be made by the acting executor or administrator with the will annexed; if no other person be appointed by the will for the purpose, or if such person fail or refuse to perform the trust," an administrator,

de bonis non, cum testamento annexo, might be appointed to execute the power. (See authorities cited in counsel's briefs.) Those are interesting questions which naturally will arise when the right time comes, but a consideration of them at this time would not only be in the nature of obiter, but would throw no light on the turning point in the case, which is the construction of the will and the testator's intention.

5. We do not think the facts justify an injunction restraining plaintiff and those holding under him from prosecuting further suits. The interpretation of the will was not without difficulty. Counsel, however learned, are allowed some latitude in hypotheses and theories in that behalf. The plaintiff and his predecessor were entitled to go into court on one hypothesis or another, so long as they acted in good faith, did not move willfully with the purpose of harassing and annoying defendants, and were willing to assume the burden of costs incident to an unsuccessful venture. It is not likely another suit in partition will be instituted during the widow's life.

The decree is reversed and the bill is ordered dismissed.

All concur, except Woodson, J., not sitting.

Equitable Partition of property held in common is considered in the recent cases of Donaldson v. Allen, 213 Mo. 293, 127 Am. St. Rep. 601; Field v. Leiter, 16 Wyo. 1, 125 Am. St. Rep. 997; Chase v. Angell, 148 Mich. 1, 118 Am. St. Rep. 568.

Partition of the Estates of Decedents is the subject of a note to Smith v. Smith, 119 Am. St. Rep. 586. See, also, the subsequent case of Field v. Leiter, 16 Wyo. 1, 125 Am. St. Rep. 996.

Partition Involving Estates in Remainder or Reversion is the subject of a note to Fitts v. Craddock, 113 Am. St. Rep. 55. See, also, the subsequent cases of Collins v. Crawford, 214 Mo. 167, 661; Field v. Leiter, 16 Wyo. 1, 125 Am. St. Rep. 997; Lawson v. Bonner, 88 Miss. 235, 117 Am. St. Rep. 738; Rutherford v. Rutherford, 116 Tenn. 383, 115 Am. St. Rep. 799.

Where a Wife Occupies as a Home the Homestead set apart by order of the probate court for the use of herself and the family of her deceased husband, the same is not liable to partition at the suit of the assignee of some of the adult heirs: Funk v. Baker, 21 Okl. 402, 129 Am. St. Rep. 788.