Engelthaler v. Engelthaler

• Court: Illinois Supreme Court
• Writing for the Court: MAGRUDER
• Citation: Engelthaler v. Engelthaler, 196 Ill. 230, 63 N.E. 669 (Ill. 1902)
• Decision Date: 16 April 1902
• Parties: ENGELTHALER et ux. v. ENGELTHALER et al.

196 Ill. 230

63 N.E. 669

ENGELTHALER et ux.

v.ENGELTHALER et al.

Supreme Court of Illinois.

April 16, 1902.

Appeal from circuit court, Cook county; Frank Baker, Judge.

Bill by Ferdinand Engelthaler and wife against Joseph Engelthaler and others to construe the will of Joseph Engelthaler, deceased. From a decree in favor of defendants, complainants appeal. Affirmed.Fanning & Herdlicka, for appellants.

L. B. Dyer, for appellees.

This is a bill filed on May 10, 1901, in the circuit court of Cook county, by the appellants, Ferdinand Engenthaler and his wife, for the purpose of construing the will of one Joseph Engelthaler, deceased, father of FerdinandEngelthaler, against the appellees, who were the heirs at law of the deceased testator, and others. The will was dated June 1, 1896. Joseph Engelthaler died on September 30, 1900. His will was admitted to probate in the probate court of Cook county on November 14, 1900. By the will the appellant Ferdinand Engelthaler was appointed executor. The bill was demurred to, and the demurrer was sustained. Subsequently, on August 1, 1900, an amendment to the bill was filed by leave of court; and the bill as amended, or the amendment thereto, was also demurred to. The latter demurrer was also sustained, and the circuit court entered a decree dismissing the bill at the costs of the complainants below, and ordering execution. The present appeal is prosecuted from such decree of dismissal.

The second clause of the will reads as follows: ‘After the payment of my funeral expenses and debts, I give, devise, and bequeath unto my beloved wife, Anna Engelthaler, all my property, of every kind and nature, during her natural life, should she survive me. After the death of my wife, I give, devise, and bequeath my homestead, known as lot 23, * * * known as No. 129 West Eighteenth street [in Chicago], subject to the payment to my daughter Petrolina Soukup $300.00; to the widow of my son Joseph Engelthaler, deceased, $400.00; to Barbara Meisinger, my daughter, $300.00; to John Engelthaler, my son, $300.00; my other children having received their share during my lifetime. It is alleged in the bill that the wife, Anna Engelthaler, died before the testator died, and also that the daughter Barbara Meisinger and the son John Engelthaler died before the death of testator. The will fails to dispose of the fee of the homestead, devised by the testator to his wife, Anna Engelthaler, during her natural life, should she survive him; and the bill alleges that, when the will was drawn, the testator directed the scrivener so to word it that the fee of the homestead should vest in the appellant Ferdinand Engelthaler, a son of testator, after the death of testator's wife, should she survive him. The bill seeks to correct and reform the second clause of the will by adding thereto and inserting therein, after the words ‘West Eighteenth street,’ the words, ‘to my son Ferdinand Engelthaler.’ As thus changed, the second clause of the will would read as follows: ‘After the payment of my funeral expenses and debts, I give, devise, and bequeath unto my beloved wife, Anna Engelthaler, all my property, of every kind and nature, during her natural life, should she survive me. After the death of my wife, I give, devise, and bequeath my homestead, known as lot 23, * * * known as No. 129 West Eighteenth street, to my son Ferdinand Engelthaler, subject to the payment to my daughter Petrolina Soukup $300.00; to the widow of my son Joseph Engelthaler, deceased, $400.00; to Barbara Meisinger, my daughter, $300.00; to John Engelthaler, my son, $300.00; my other children having received their share during my lifetime.’ The bill alleges, in support of its prayer, that the will was written by the scrivener in the English language, but that the testator did not understand the English language, and that, when the will was read to him, both the testator and the scrivener supposed that it contained the provision devising the fee of the homestead to Ferdinand Engelthaler. The bill also alleges that the testator made statements to other persons after the execution of the will, and before his death, to the effect that he had provided for his son Ferdinand Engelthaler in his will, by devising certain real estate to him, to vest in him after the death of the testator's wife. The amendment to the bill averred that, after the will was executed, the testator made a memorandum in writing in a book, usually kept by him of his affairs and transactions, to the effect that he had devised by a will to his son Ferdinand Engelthaler, after the death of his wife, the lot described in the bill.

MAGRUDER, J. (after stating the facts).

The bill in this case, though nominally a bill to construe the will of the deceased testator, is really and in effect a bill to correct and reform the will. It is sought by the bill to correct and reform the will by inserting therein the name of Ferdinand Engelthaler, a son of the testator, as a devisee, when the will itself did not name him as such devisee. The will gave to the wife of the testator all his property, of every kind and nature, during her natural life, should she survive him. She did not survive him, and the general rule is that, if a legatee dies before the testator, the legacy lapses, because the gift cannot take effect until the death of the testator, and, if the legatee is then dead, he cannot be benefited thereby. Glover v. Condell, 163 Ill. 566, 45 N. E. 173,35 L. R. A. 360. The same is true as to the daughter Barbara Meisinger and the son John Engelthaler, both of whom are alleged to have died before the death of the testator. The will in fact makes no devise of the homestead lot, although it may have been the intention of the testator to devise...