Brownfield v. Wilson
| Decision Date | 30 September 1875 |
| Citation | 78 Ill. 467,1875 WL 8514 |
| Parties | MARY BROWNFIELDv.MARY ANN WILSON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.
Messrs. WILLIAMS, MCKENZIE & CALKINS, for the appellant.
Messrs. HUMPHREY & SNOW, for the appellees.
In the month of August, 1871, Christian Brownfield made and published his last will and testament, which contains two clauses, out of which this controversy has grown. They are these:
First. “I give and bequeath to my beloved wife, Mary Brownfield, forty acres, viz: the north forty where the house and orchard now stands on.”
Second. “I give and bequeath to my heirs, John Brownfield, and Mary Ann Brownfield, and Margaret R. Brownfield, Catharine Jane Brownfield, Nancy Elizabeth Brownfield, Sarah Louise Brownfield, Susannah Armstrong, to share equally and alike in my real estate, and also my personal property; the personal property to be sold after my death, and the real estate after Mary Brownfield's death.” The heirs, being dissatisfied with the will, and Mrs. Brownfield being a step-mother, filed a bill to set it aside, on the grounds that it had been obtained by undue influence, and that the testator, at the time of its execution, was not of sound mind and memory. But subsequently these grounds were abandoned, and the bill was amended, asking the court to construe the will, and to decree that the widow took by the will but a life estate in the real estate named in the first clause. A trial was had on the bill, answer, replication, exhibits and the proofs, when the court found and decreed that the widow took, under the first clause of the will, but a life estate. And from that decree Mrs. Brownfield appeals to this court.
The question has not been raised as to the power of the court to entertain a bill simply to give a construction to a will, and we will therefore not examine or discuss that question, but we will proceed to determine whether the court erred in rendering the decree. This is the only question pressed in argument, and we shall confine ourselves alone to its consideration.
Both parties are agreed, that, if the first clause were considered alone, it devises to Mrs. Brownfield the forty acres upon which the house and orchard are situated in fee simple absolute; but appellees contend, that, when considered with the second clause, it is manifest that it limits the devise by the first to a life estate in the devisee--that this is the true construction of these two clauses. On the other hand, appellant claims and insists that the second clause is entirely separate from and has no reference to the first, and consequently has no control over it, or the title or estate devised therein. This is the precise question presented by this record for solution.
It is one of the familiar rules of construction, whether of a will or other instrument, that in cases of doubt all of its parts should be considered together, and, if possible, to give every clause and provision effect, according to the intention of the maker. When ascertained, the intention of the testator must be enforced. And, inasmuch as wills are frequently draughted by persons unskilled, and who are imperfectly acquainted with the accurate meaning of language, and are wholly unacquainted with the technical meaning of words, and have no knowledge of the theory of tenures, as they obtain in our system of jurisprudence, technical rules are not so rigidly applied as in the construction of deeds. The question, however, is, the entire instrument considered, what did the testator intend by the will? Then, when this will is considered, what, if any, effect, had the second clause upon the first?
A latter clause of a will is to be considered, when repugnant to a former provision, as intending to modify or abrogate the former. Now, when the testator had given to his wife the home forty acre tract in fee, can we suppose in the very next sentence he gave, or intended to give, the same without limitation, except that it, with his other real estate, should, at the time named, be sold, and the proceeds divided among his heirs. Such a supposition can not be indulged, unless the language employed will bear no other construction. And yet, if the phrase, “to share equally and alike in my real estate,” was intended to embrace all of his lands and tenements, it would revoke the devise in the first clause, because he gives and bequeaths to the persons named, real estate, to be shared alike and equally between them. Now, if this phrase embraces, or by fair intendment could be held to embrace, all of his real estate for any purpose, it must be held to do...
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Drager v. McIntosh
...that when clauses of a will are irreconcilable and the repugnancy is invinciblethe later clause will usually prevail. Brownfield v. Wilson, 78 Ill. 467;Rountree v. Talbot, 89 Ill. 246;Murfitt v. Jessop, 94 Ill. 158;Dickison v. Dickison, 138 Ill. 541, 28 N. E. 792,32 Am. St. Rep. 163. Every ......
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