Boye v. Boye

• Decision Date: 22 December 1921
• Docket Number: No. 14176.,14176.
• Citation: 300 Ill. 508,133 N.E. 382
• Parties: BOYE et al. v. BOYE et al.
• Court: Illinois Supreme Court

300 Ill. 508

133 N.E. 382

BOYE et al.

v.BOYE et al.

No. 14176.

Supreme Court of Illinois.

Dec. 22, 1921.

Error to Circuit Court, Fayette County; Thomas M. Jett, Judge.

Action by John H. Boye, Jr., executor of the last will of John H. Boye, deceased, and others against Walter F. Boye and others, in which the executor, the widow, and three of testator's children bring error to reverse the decree rendered construing the will, and Walter Landeck, a minor, by his guardian ad litem, assigns cross-error.

Affirmed.

Matheny & Welker, of Vandalia, and Noleman, Smith & Dallstream, of Centralia, for plaintiffs in error.

Albert, Webb & Albert, of Vandalia, Olen R. Clements, of Marshall, and Fred A. Meyers, guardian ad litem, of Woodriver, for defendants in error.

DUNN, J.

The will of John H. Boye, who died on April 5, 1915, was admitted to probate. After providing for the payment of his debts and funeral expenses, it directed in the second, fifth, sixth, and seventh paragraphs as follows:

‘Second. I give and devise and bequeath to my wife, Johanna Boye, all the rest and residue of my property, of every kind and character and wherever situate, real, personal and mixed, to be used by her, or so much of it as she may desire or need, so long as she lives. It being my desire that my executor hereinafter named shall rent the real estate and keep any moneys that I may have, loaned at interest, and pay to my said wife from the rents received from real estate, the interest on money loaned, and any other income that may come into his hands as such executor, all or so much of it as she may need to support her so long as she may live.

‘Fifth. At the death of my wife I hereby direct my executor hereinafter appointed, within a reasonable time to sell any real estate that may not be at that time disposed of and convert the same into cash.

‘Sixth. At the death of my wife I hereby give and bequeath all of my property to my children, share and share alike and hereby direct my executor to divide any property among my children within a reasonable time, share and share alike, and hereby direct that in the event any of my child or children shall be dead at that time, leaving child or children, then I direct that such child or children shall take its or their parent's portion.

‘Seventh. I hereby direct that that portion of my estate that under this will will go to my grandson, Walter Landeck, the only child of my deceased daughter, Tillie Landeck, shall be held by my executor and the income from said estate, only, be paid to my said grandson. I further direct that in the event that my said grandson should need a portion of the principal to care for and educate him in a proper manner, that my executor is hereby authorized to pay to my said grandson such portion of the principal as my executor in his judgment deems to be wise and proper. I further direct that my said executor shall hold that portion of my estate going to said grandson until my said grandson arrives at the age of twenty-eight years, and I further direct that in the event my said grandson dies without leaving a child or children before arriving at the age of twenty-eight years, that that portion of my estate that will go to my grandson under and by direction of said will revert to and become the property of my estate.’

The third and fourth paragraphs conferred authority upon the executor in the management and control of the estate during the life of the wife and the payment of the income to her. Letters testamentary were issued to the testator's son John H. Boye, Jr., who was nominated executor. Besides his widow the testator was survived by three sons, two daughters, and the grandchild, Walter Landeck, named in the will. Walter F. Boye, a son of the testator, filed a bill praying for the construction of the will. It was answered, and after a hearing a decree was entered. The executor, the widow, and three of the testator's children sued out a writ of error to reverse the decree, and Walter Landeck, who is a minor, by his guardian ad litem, has assigned cross-error.

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