Bland v. Bland

• Decision Date: 12 May 1882
• Citation: 103 Ill. 11,1882 WL 10276
• Parties: WILLIAM BLAND et al.v.DAVID BLAND et al.
• Court: Illinois Supreme Court

103 Ill. 11

1882 WL 10276 (Ill.)

WILLIAM BLAND et al.

v.DAVID BLAND et al.

Supreme Court of Illinois.

Filed at Ottawa May 12, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. JOHN BURNS, Judge, presiding.

This was a bill in chancery for a partition of certain real estate, and assignment of dower therein, brought in the circuit court of Peoria county by appellants, representing the four elder children of John Bland, deceased, against appellees, representing the widow and five younger children of said deceased, and basing their right to the relief asked upon the provisions of the will of such decedent. The bill sets out the will, the provisions of which, material to be considered, are as follows: “First, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to-wit: To my beloved wife and five youngest children,--that is to say, Rachel Ann Bland, Charlotte Bland, Elizabeth J. Bland, David Bland, and Eliza Paradine Bland,--the farm and all its appurtenances thereunto belonging, known and described as follows, to-wit: it being 157 acres, being and lying in the south-west quarter of section 34, in township 11, north of the base line, in range 8, east of the fourth principal meridian. All the rest, residue and remainder of my personal estate also to my beloved wife and the five above named heirs,--that is to say, to my wife during her natural life, and to the minor heirs until they become of lawful age to account for themselves. To my other heirs and oldest children, heirs at law, I give and bequeath the sum of five dollars each; to Margaret Bland five dollars, to William Bland five dollars, to Mary Ellen Pierce five dollars, and to John A. Bland five dollars and two yearling colts, (one is a bright bay, the other is brown, with a bald face and white hind legs); and at the time of the youngest heir becoming of lawful age, the property, both real and personal, to be divided amongst my children, share and share alike.” The will bears date October 8, 1862. The bill avers that John Bland died in 1863 or 1864, that the real estate described in the will is all the real estate owned by him at the making of his will and at his death, and that the youngest child long since became of lawful age. The circuit court sustained a demurrer to the bill and dismissed the same, and the complainants appealed.

Messrs. STEVENS & LEE, for the appellants:

The intention of the testator, as gathered from the whole will, must govern, and, if possible, effect should be given to every part. It being admitted by the demurrer that there was no other real estate than that mentioned in the first clause of the will, it will be presumed the testator referred to it in providing for a division.

If the first and third clauses of the will are repugnant, the latter must be considered as modifying or abrogating the former. Brownfield v. Wilson, 78 Ill. 467; Smythe v. Taylor, 21 Id. 296; Caruthers v. McNeil, 97 Id. 256; Johnson v. Johnson, 42 Id. 425; Poole v. Blakie, 53 Id. 295; Wesch v. Belleville Savings Bank, 94 Id. 191.

There are two constructions that may be given to the will without doing injustice to any one:

First--The widow took a life estate in the personal property by the express terms of the will; now, giving her dower in the real estate, and, under the last clause of the will, dividing the balance equally among all the children, would work no injustice to any one.

Second--If the first and second clauses of the will should be considered as connected, and constituting but one clause, then the widow would take a life estate in both the real and personal property. By the last clause of the will, the youngest child having long since become of age, the property should be divided among all the children equally, subject to the life estate of the widow. It is immaterial to complainants which interpretation shall prevail. But to give the will the construction contended for by the respondents, would be an act of injustice to the older children never intended by the testator.

Messrs. COOPER & TENNERY, for the appellees:

The rule that in case of repugnancy in different parts of a will the last part is to be held as modifying or defeating the first, is not one of general application, and is adopted only in extreme cases, and from necessity. Rountree v. Talbot, 89 Ill. 246.

The first clause unqualifiedly gives “the farm and all its appurtenances” to the testator's wife and five younger children. The second clause was not designed to change the first, but rather to fix the time when the division of the...