Reid v. Corrigan

• Decision Date: 31 October 1892
• Citation: 32 N.E. 387,143 Ill. 402
• Parties: REID v. CORRIGAN.
• Court: Illinois Supreme Court

143 Ill. 402

32 N.E. 387

REID

v.CORRIGAN.¹

Supreme Court of Illinois.

Oct. 31, 1892.

On rehearing.

WILKIN, J.

This was a bill in chancery in the circuit court of Cook county by appellant against appellees and Mary Corrigan, executrix of the last will of Michael Corrigan, to construe the will of said Michael, and enforce the payment of a legacy of $3,000 to her. Said will is set out at length in the bill as follows, to wit:

‘I, Michael Corrigan, being of sound mind and memory, do make this, my last will and testament. First. I give and devise unto my wife, Mary, the Corrigan block, and the grounds upon which it stands, situate on the northeast corner of State street and Hubbard court, (not meaning to include the property known as the ‘Emery’ or ‘Panorama’ Hotel.) I also give and devise to her the homestead situate on the corner of Twenty-Ninth street and Prairie avenue, forever; and also all my personal property of every description. Second. I give the sum of three thousand dollars to my niece Minnie Reid. Third. I give and devise the seventy-five feet of land I own on State street, south of Twenty-Ninth street, to the Little Sisters of the Poor and the St. Vincent Foundlings' Home, both of Chicago, share and share alike. Fourth. I give and devise all the rest, residue, and remainder of all my real estate, without any exception, to my brother Martin Corrigan, my sisters Margaret Clifford and Jane Keefe, and my sister-in-law, Johanna Corrigan, and their heirs, share and share alike, but the portion to said Johanna Corrigan is to be held in trust by her for her children, Richard, Lizzie, and Jennie. Fifth. I appoint my wife executrix of this, my last will, without bond. All the above property is situated in the county of Cook and state of Illinois. In witness whereof, I have hereunto set my hand and seal this third day of October, A. D. 1887.

‘MICHAEL his X mark. CORRIGAN. [Seal.]’

It is alleged in the bill that the testator died on the same day he executed said will; that there are no debts or charges against his estate; that the real estate devised to his wife was of the value of $100,000, and the personal property bequeathed to her worth about $20,000, $19,000 of which was cash in bank; also that the devise to appellees, made by the fourth clause of the will, was of the value of $100,000, yielding a rental of some $500 per month. It is further alleged in the bill that the complainant has demanded the payment of said legacy from the said Mary Corrigan, both as executrix of said will, and individually, but she has refused to pay the same, claiming that no fund has come into her hands, in either capacity, out of which the said legacy should be satisfied; also that she has made a like demand of the devisees named in the fourth clause, who likewise refuse to pay her. The prayer is that the court ascertain the intention of the said Michael Corrigan, as to the fund or property out of which her said legacy should be paid, and decree accordingly. Mary Corrigan and appellees answered the bill, each admitting that said legacy had not been paid, and their refusal to pay the same, each claiming that it cannot be charged upon the bequest to them. On a hearing, the court found and decreed that the complainant was entitled to have her said legacy paid out of the real estate devised to appellees, and made it a lien on the same. On appeal by appellees the appellate court of the first district reversed the decree of the circuit court, and the complainant below now prosecutes this appeal.

On the administration of testate estate, the personal property is the primary fund for the payment of debts and general legacies, unless a contrary intention on the part of the testator satisfactorily appears. It is sometimes difficult to determine whether or not such contrary intention does appear, but it is no longer necessary that it should be shown by express words; it ‘may be implied from the whole will, taken together.’ Heslop v. Gatton, 71 Ill. 528, and authorities cited. That it was the intention of Michael Corrigan to give appellant the sum of $3,000 by his last will is clearly expressed. It is an elementary rule in the construction of wills that effect must be given to that intention if it can be done consistently with the rules of law. In other words, this bequest must not be allowed to abate unless it shall be found that, by no fair interpretation of the entire testamentary devise, can it be ascertained from what part of his estate the testator intended it should be paid. Therefore, although the only question here presented for decision is, can it be charged upon the real estate devised to appellees by the fourth or residuary clause? in determining that question it becomes important to determine, first, whether, by the terms of the preceding clause, it can, consistently with the intention of said testator, be paid out of any other part of his estate. That it was not his purpose to charge it upon the real estate devised by the first and third paragraphs of his will is conceded. It is said, however, that the personal estate bequeathed to the wife is not exonerated from its payment. The argument in support of this contention is based upon the foregoing rule by which the personalty is made the primary fund for the payment of all general legacies. We have, however, seen that rule ceases to be applicable whenever a contrary...