Barrenscheen v. Grosch

• Decision Date: 09 July 1940
• Docket Number: Gen. No. 41192.
• Citation: 28 N.E.2d 181,306 Ill.App. 200
• Parties: BARRENSCHEEN v. GROSCH ET AL.
• Court: United States Appellate Court of Illinois

306 Ill.App. 200

28 N.E.2d 181

BARRENSCHEEN

v.GROSCH ET AL.

Gen. No. 41192.

Appellate Court of Illinois, First District, Second Division.

June 26, 1940.

Rehearing Denied July 9, 1940.

Appeal from Circuit Court, Cook County; Robert Jerome Dunne, Judge.

Action by Emilie Barrenscheen against Katchen Grosch and others to construe a will. From an adverse decree, plaintiff appeals.

Affirmed. Edwin L. Waugh, of Chicago (Walter B. Smith, of Chicago, of counsel), for appellant.

J. Colburn Hamilton, of Chicago (Daniel F. Kemp, of Chicago, of counsel), for appellee.

SCANLAN, Justice.

Plaintiff filed a bill to construe the will of Henry Barrenscheen. The case was heard by the court upon the complaint, with the will of Henry Barrenscheen attached, and the joint and several answer of defendants. The complaint prayed that the court find: “A. * * * that plaintiff was by the will aforesaid vested with a fee simple title to all the real estate aforesaid free and clear of all charges of any and every kind and nature whatsoever,” and that the court find “B. * * * that plaintiff, under the last will and testament of the said Henry Barrenscheen aforesaid, became seized and possessed of all the real estate of which the said Henry Barrenscheen died seized and possessed, free and clear of all charges of any kind and nature whatsoever.” The answer of defendants prayed “that said will be construed by the court, but deny that plaintiff is entitled to the relief prayed for in said complaint, and ask that a decree be entered finding that the payment of $5,000 out of the estate of said Henry Barrenscheen by Emilie Barrenscheen, after her death, to Jacob Brand or his heirs is a charge or equitable lien upon the real estate described in said complaint.” The decree recites the second paragraph of the will (the one which the trial court was called upon to interpret), which provides as follows: “Second: After the payment of such funeral expenses and debts, I give, devise and bequeath unto my wife, Emilie Barrenscheen all my personal and real property to have and to hold the same forever. Should, however, no child be born to my wife during our matrimonial life, or should a child be born and should the same die before the death of my wife, then my wife shall be held to pay out of my estate after her death, the sum of Five Thousand Dollars ($5,000.00) to Jacob Brand of Biebelnheim, Hene-Darmstadt Germany, brother of my first wife or his heirs.” The decree found that no child was ever born to Emilie Barrenscheen during her matrimonial life with Henry Barrenscheen; that said Barrenscheen died seized of certain real estate (the legal description follows); that Jacob Brand departed this life “leaving him surviving Katchen Grosch, Philipp Brand, Elisabeth Malsy, Anna Brand, and Marie Gurisch, as his only heirs at law.” The decree orders, adjudges and decrees: “1. That the true construction, meaning, interpretation and effect of the second paragraph of said will according to the intent of the testator as gathered from the entire will is that Emilie Barrenscheen, plaintiff herein, takes a fee simple title to said real estate, subject to a charge of $5,000, to be paid to Jacob Brand of Biebelnheim Hene-Darmstadt, Germany, or his heirs after the death of the said Emilie Barrenscheen. 2. That Emilie Barrenscheen is the owner in fee simple of the following described real estate: [Here follows a legal description of the real estate.] subject to a charge or lien in the sum of $5,000, to be paid to the heirs of Jacob Brand of Biebelnheim Hene-Darmstadt, Germany upon the death of said Emilie Barrenscheen.” Plaintiff appeals from the decree.

Plaintiff contends: “I. By the will * * the plaintiff was bequeathed all his personal property and was devised an estate in fee simple in and to all the real estate of which he died seized and possessed. Therefore there was no estate remaining from which any further gift might be paid. II. The $5000 referred to in the will was not a lien or charge upon the real estate. III. The condition stated in the second paragraph of said will was impossible of fulfillment and therefore was void. IV. In the construction of a will, any ambiguity should be resolved in favor of the widow in preference to the children of a deceased brother of a former wife of the testator.”

Defendants contend: “I. A specific bequest of a sum of money directed to be paid out of the testator's estate by the executrix, who is also the sole devisee, is not void as an attempted limitation on the fee simple title devised to her. A. A charge on real estate is not an interest in land and does not limit a fee subsequently devised. B. An estate in fee simple absolute may be cut down by subsequent language in the will which is clear and unmistakable. II. The bequest directed to be paid by the executrix and sole devisee out of the testator's estate is a charge upon the real estate devised under the will. A. The intention to charge the payment of a bequest or legacy upon the real estate may be implied from the whole will taken together. B. Where real and personal estate are blended together in one mass in a general disposition, the real estate is charged with payment of the legacies. C. Where a devisee is expressly directed to pay certain legacies, although not expressly charged by the will, this will charge the legacies on the real estate devised.”

Our Supreme Court has always followed the old rule that in the construction of wills the intention of the testator is the polar star to guide the court in its interpretation. In Meins v. Meins, 288 Ill. 463, at pages 465, 466, 123 N.E. 554, at page 555, the court states: “The principal rules of construction are: The intention of the testator, if not inconsistent with the established rules of law or public policy, must govern. This intention must be gathered from the whole will, and all its parts taken together. Every clause and provision, if possible, should have effect given to it according to the intention of the maker. Fifer v. Allen, 228 Ill. 507, 81 N.E. 1105; Lander v. Lander, 217 Ill. 289, 75 N.E. 487;Hamlin v. United States Express Co., 107 Ill. 443;Henderson v. Blackburn, 104 Ill. 227, 44 Am.Rep. 780;Bland v. Bland, 103 Ill. 11;City of Peoria v. Darst, 101 Ill. 609;Giles v. Anslow, supra [128 Ill. 187, 21 N.E. 225];Boyd v. Strahan, 36 Ill. 355. A later clause of a will, when repugnant to a former provision, is to be considered as intending to modify or abrogate the former. Harris v. Ferguy, 207 Ill. 534, 69 N.E. 844; Hamlin v. United States Express Co., supra.” In Keiser v. Jensen, 373 Ill. 184, 187, 25 N.E.2d 819, 821, the court states: “Where, in a will, language is used which, standing alone, is sufficient to create an estate of inheritance in the first taker, any subsequent language, in order to cut down such estate, must be clear and unmistakable. Sweet v. Arnold, 322 Ill. 597, 153 N.E. 746;Hempstead v. Hempstead, 285 Ill. 448, 120 N.E. 782. If it appears from the entire language of the instrument that it was the intention to impose a limitation upon the estate, that intention will be given effect. Gahan v. Golden, 330 Ill. 624, 162 N.E. 164;Tripp v. Krauth, 340 Ill. 11, 171 N.E. 919;Knight v. Gregory, 333 Ill. 643, 165 N.E. 208. The test whether words used in a devise are dispositive or merely precatory is: Does the testator mean by such words to control the disposition of the property? If so, it is his will no matter how mildly the wish is expressed; but if he simply indicates by such words what he regards as a wise disposition, leaving it to the discretion of the person taking the legal title to the property to dispose thereof, then it is not his will. Hempstead v. Hempstead, supra.”

In our opinion the intention of Henry Barrenscheen is clearly and unmistakably expressed in his will. The testatorstates: “Should, however, no child be born to my wife during our matrimonial life, * * * then my wife shall be held to pay out of my estate after her death, the sum of Five Thousand Dollars ($5,000.00) to Jacob Brand * * * or his heirs.” (Italics ours.) These are not precatory words but positive directions, the testator clearly intending by the language used to impose a charge upon the real estate to insure the payment of...