Fenstermaker v. Holman. view is correct, the case must be affirmed; if she took a fee, it must be reversed. The purpose in construing a will is to ascertain the intention of the testator, and, when that intention is ascertained, it must be given effect, unless in violation of some rule of law. Langman v. Marbe, 156 Ind. 330, 331; Mulvane v. Rude, 146 Ind. 476, 480; Wood v. Robertson, 113 Ind. 323, 326; 4 Kent's Com. (14th ed.) 534, 535. To ascertain such intention, the whole will must be considered, and no word or clause in the will is to be rejected to which a reasonable effect can be given, and that effect must be given to every part of the will if possible. Moore v. Gary, 149 Ind. 51, 57; Nading v. Elliott, 137 Ind. 261, 276; Beach on Wills, p. 517, §313; 4 Kent's Com. (14th ed.) 534, 535. In this State, only a life estate in land will pass to a devisee, unless it affirmatively appears from the will that a greater estate was intended. Cleveland v. Spilman, 25 Ind. 95, 98, 99; Rusk v. Zuck, 147 Ind. 388, 390; Mulvane v. Rude, 146 Ind. 476, 480; Roy v. Rowe, 90 Ind. 54, 58; Ross v. Ross, 135 Ind. 367, 370; §2737 Burns 1901, §2567 R. S. 1881 and Horner 1901. While a general devise of real estate, without defining the interest to be taken by the devisee, gives only a life estate, yet the word "heirs", or other word of legal inheritance, is" not necessary in a will to convey an estate in fee simple; if the whole will denotes an intention to devise more than a life estate in real estate, it must be so construed. It is said concerning this rule in 4 Kent's Com. (14th ed.) 535 et seq., that: "It does not require the word 'heirs' to convey a fee; but other words denoting an intention to pass the whole interest of the testator, as a devise of all my estate, all my interest, all my property, my whole remainder, all I am worth or own, all my right, all my title, or all I shall die possessed of, and many other expressions of the like import will carry an estate of inheritance, if there be nothing in the other Fenstermaker v. Holman. parts of the will to limit or control the operation of the words." It will be observed that the interest to be taken by the widow, Sarah Ann Reeves, in said real estate, is not defined in the will. It may be that the devise to the widow, standing alone, without considering the subsequent provisions of the will, would be construed to give her a fee in said real estate; but wills are not to be so construed. Such construction would be the result of presumption or inference as to the intention of the testator, because he has not said in express terms that he devised said real estate to his widow "in fee simple", either in apt words or by the use of legal words of inheritance. The whole will must be considered to ascertain the intention of the testator. In clear and distinct terms the testator provided that at the death of his wife the real estate devised to her shall go to his daughters, describing the part given to each daughter. Said testator also directed "that said Martha M. Fenstermaker be paid the sum of $200 out of that part of my estate which I herein will and devise to my beloved daughter Cyrena Ann Holman. This said sum bequeathed to her in order to make them share my estate share and share alike." Considering the whole will, it is evident that the testator did not intend to give his widow more than a life estate in said land. In reaching this conclusion we are not unmindful of the rule that, where an estate in fee simple is devised in one clause in a will in clear and decisive terms, it can not be cut down or modified by a subsequent clause which raises a mere doubt, nor by inference therefrom, nor by any subsequent words which are not as clear and decisive as those giving the estate. Underhill on Law of Wills, §§358, 682. When, however, the subsequent provisions clearly and distinctly show an unmistakable intention on the part of the testator to give an estate less than a fee simple, such intention must control. O'Boyle v. Thomas, 116 Ind. 243; Ross v. Ross, 135 Ind. 367, 370, 371; Mulvane v. Rude, 146 Carver v. Forry. Ind. 476, 481, and cases cited; Rogers v. Winklespleck, 143 In this case said real estate was not devised to the widow in fee simple in clear and decisive terms, and the provisions of said will, subsequent to said devise, clearly and distinctly show, when read in connection with the other parts of said will, not an intention to interpose a restraint or limitation upon the estate granted, but an unmistakable intention on the part of the testator to give his widow a life estate only, in said real estate. It is not necessary, therefore, to decide what the effect of said subsequent provisions would have been if the testator had, in express words, devised said real estate to his widow in fee simple, or had used legal words of inheritance in making said devise to her. The judgment of the trial court is affirmed. CARVER ET AL. v. FORRY ET AL. [No. 18,789. Filed February 6, 1902.] BILLS AND NOTES.-Plea of Payment.-Burden of Proof.-Where the defendant in an action on a promissory note pleads payment, the burden is upon him to establish his plea by a preponderance of the evidence. pp. 77, 78. APPEAL AND ERROR.-Evidence.-To justify the Supreme Court in disturbing a judgment of the trial court on the evidence alone it must appear that the evidence is such as to present for decision a question of law on some material issue, and that such question, under the judgment of the trial court, was decided erroneously. pp. 78-81. From Madison Circuit Court; J. F. McClure, Judge. Action by Charles T. Doxey against David K. Carver and others on a promissory note. From a judgment for plaintiff, defendants appeal. After the rendition of the judgment Charles T. Doxey died and his executors and legatees were made party appellees. Affirmed. F. A. Walker and F. P. Foster, for appellants. JORDAN, C. J.-This appeal is prosecuted to reverse a judgment recovered in the lower court by Charles T. Doxey Carver v. Forry. against David K. Carver and his co-appellants. After the rendition of the judgment, Doxey died testate, and the executors of his will and all of the legatees were made party appellees herein. The action was instituted in the lower court on June 6, 1896, to recover a personal judgment against appellant David K. Carver on a promissory note executed by him to said Doxey on January 18, 1888, for the sum of $5,000, bearing interest at eight per cent. per annum, due and payable five years after date, and to foreclose, as against all of the defendants, a mortgage executed by David K. Carver and Mary Carver, his wife, to secure the payment of the note in suit. David K. Carver filed an answer in three paragraphs. The first was a denial, the second pleaded payment of the note, and the third set up matter as a counterclaim. Mary Carver and other defendants filed answers. On the issues joined the cause was submitted to the court for trial, and after hearing the evidence there was a finding in favor of plaintiff on his complaint, and against Carver and wife on the issues tendered by them in their separate answers. The complaint conceded that the ten coupon interest notes which had been executed for the interest of the principal note of $5,000 had been paid, and sought only to recover the face of the principal note, together with the accrued interest thereon and attorney's fees. The trial court found that there was due on the note in suit, principal and interest, $6,394.27, and the further sum of $225 as attorney's fees, making a total due to plaintiff of $6,619.27, and, over the separate motions of Carver and wife for a new trial, rendered judgment for that amount, and decreed a foreclosure of the mortgage. The only complaining party in this appeal is David K. Carver, and the error which he assigns relates to the action of the court in denying his separate motion for a new trial. The single question discussed by his counsel is in respect to the alleged insufficiency of the evidence to support the finding and judgment of the court. Or, in other words, it is contended Carver v. Forry. that there should have been a finding in his favor under the evidence on the issue of payment. There is no controversy under the evidence in respect to the plaintiff's right to recover on his complaint in the event the note in question is not shown to have been paid before the beginning of the action. The burden of the issue of payment as tendered by the separate answer of appellant Carver was cast upon him, and in order to make his plea available he was required to establish it by a preponderance of evidence. We have read and considered the evidence as exhibited by the record, and find that there is evidence disclosing the following facts: On January 18, 1888, appellant Carver borrowed of Charles T. Doxey $5,000, and executed the note in suit. Ten coupon interest notes, in payment of the interest accruing on the principal note to the time of its maturity, were also executed, all of which were secured by the mortgage in suit. At the time Carver borrowed the $5,000 he also appears to have secured a further loan from Doxey to the amount of $4,000, for $3,000 of which he executed a note due in five years, bearing interest at eight per cent. Payments seem to have been made on these notes from time to time to Edwin Schlater, the private secretary of Mr. Doxey, and there is evidence to show that Schlater gave proper credits for the payments so made. Some time during the first part of 1894 Schlater died, but before his death it appears that the loans of $3,000 and $1,000, as heretofore mentioned, had been fully paid. After the death of Schlater, Horace C. Stilwell succeeded him as Doxey's secretary, assuming the duties of his employment on June 1, 1894. Soon after becoming installed in his position he notified appellant by letter that he was in default in the payment of the interest which had accrued on the $5,000 note after its maturity, and also in the interest coupon notes. Appellant does not deny that he received this notice. Some time after giving this notice, Stilwell, it seems, sent him several other notices in regard to the same matter. In |