Edgar Cnty. Children's Home v. Beltranena

• Decision Date: 15 March 1949
• Docket Number: No. 30704.,30704.
• Citation: 402 Ill. 385,84 N.E.2d 363
• Parties: EDGAR COUNTY CHILDREN'S HOME et al. v. BELTRANENA et al.
• Court: Illinois Supreme Court

402 Ill. 385

84 N.E.2d 363

EDGAR COUNTY CHILDREN'S HOME et al.

v.BELTRANENA et al.

No. 30704.

Supreme Court of Illinois.

Jan. 19, 1949.

Rehearing Denied March 15, 1949.

Appeal from Circuit Court, Edgar County; Ben F. Anderson, judge.

Action by the Edgar County Children's Home and another against Joseph T. Beltranena, administrator and others, for the construction of a will. Decree for plaintiffs and defendants apppeal.

Reversed and remanded with directions.

Meeks & Wise, Samuel V. Jinkins and Horace E. Gunn, all of Danville, and Harvey Gross, of Paris (Henry S. Wise, of Danville, of counsel), for appellants.

Lawrence B. Moore, of Paris, and Karl J. Mohr, of Rockford, for appellees.

CRAMPTON, Justice.

William Brock-Jones died testate on April 9, 1905, leaving his widow surviving. The second and third paragraphs of his will provide:

‘Second. I give devise and bequeath to my wife Mattie Brock-Jones, absolutely, all the rest and residue of my property of whatsoever nature and kind, and wherever situated, and it is my desire that on her demise, said property or estate as it may then be shall pass into the hands of the Orphans Home, Paris Edgar County, Illinois, and the Masonic Orphans Home, Chicago Illinois, share, & share, alike.

‘Third. I hereby nominate my wife Mattie Brock-Jones the Executrix of this my last Will and Testament, and direct that she be not required to give bond for the discharge of the duties devolving upon her under this appointment, and is to manage and control said property in the manner which seems best to her.’

The will was admitted to probate on May 10, 1905, letters testamentary were issued to his widow, and the estate was duly administered. The widow continued in possession of testator's real estate and personal property until the time of her death, intestate, in 1945. The two charities named in testator's will then filed this suit against her heirs for the purpose of obtaining a construction of testator's will.

The question is whether, under the terms of that will, the widow acquired a fee-simple title to this real estate or whether she was given only a life estate, with the remainder in the two named charities. The court below found that under a proper construction of the will it was testator's intention to devise his wife a life estate and the plaintiffs ‘the fee simple title * * * subject only to the life estate.’

The law is well settled that the intention of the testator must be ascertained from a consideration of the will itself; that such construction must be adopted as will uphold all the provisions and give effect to all the language used by the testator. In doing this all repugnancies must be reconciled, if possible to do so without adopting an unreasonable or absurd construction. Scott v. Crumbaugh, 383 Ill. 144, 48 N.E.2d 532.

It is clear, from the first half of the second paragraph, that the widow was thereby given absolute title to the real estate and personal property. Had nothing more been added there could be no question as to the sufficiency of this paragraph to devise to her a fee-simple title in the property. Indeed, this would have been the effect even if the word ‘absolutely’ were omitted. After making such provision, however, the testator said: ‘and it is my desire that on her demise, said property or estate as it may then be shall pass into the hands of’ the two named charities.

The rule is well settled that subsequent language, in order to cut down the devise from an estate of inheritance to a lesser estate, must be clear and explicit so that there can be no uncertainty as to what was intended. MacGalliard v. Duis, 370 Ill. 230, 18 N.E.2d 223. Generally speaking, this is not true of words such as ‘desire’ or ‘request.’ They are susceptible to two different constructions. They are either dispositive or precatory, depending upon the context in which they are used. Whatever may be said as to the effect of this clause had it been preceded merely by the words ‘I give, devise and bequeath to my wife Mattie Brock-Jones,’ the addition of the word ‘absolutely’ required a much greater precision of expression than that contained in the words ‘and it is my desire’ before the subsequent language can operate to substitute a life estate for that created by the ordinary meaning of the words first used. That the testator was familiar with accurate dispositive terminology is apparent from his use of the words ‘give devise and bequeath’ in connection with his gift to his wife. By failing to employ...