Gridley v. Gridley

• Decision Date: 22 January 1948
• Docket Number: No. 30432.,30432.
• Citation: 399 Ill. 215,77 N.E.2d 146
• Parties: GRIDLEY et al. v. GRIDLEY et al.
• Court: Illinois Supreme Court

399 Ill. 215

77 N.E.2d 146

GRIDLEY et al.

v.GRIDLEY et al.

No. 30432.

Supreme Court of Illinois.

Jan, 22, 1948.

Appeal from Circuit Court, McLean County; William C. Radliff, judge.

Suit by Emily R. Gridley and the First National Bank of Chicago as trustee under the will of Logan A. Gridley, deceased, and as trustee of Irene T. Hyde, deceased, against Asahel Gridley and others for the construction of the wills of Asahel Gridley, Logan A. Gridley and Irene T. Hyde. The defendants filed counterclaims. From a decree dismissing the counterclaims and for partition, the defendants appeal.

Affirmed.

William R. Bach, William J. Bach and Costigan, Wollrab & Yoder, all of Bloomington, for appellants.

Dunn & Dunn and Edward Barry, Jr., all of Bloomington, for appellees, Emily R. Gridley and others.

George F. Barrett, Atty. Gen., and Stone & Stone and Whedon Slater, all of Bloomington, for other appellees.

THOMPSON, Justice.

A decree entered by the circuit court of McLean County construed the last will and testament of Asahel Gridley, deceased, and ordered partition of the real estate described in the thirteenth clause thereof.

Asahel Gridley died testate January 25, 1881, leaving surviving a widow, Mary A. E. Gridley, and four children, Albert W. Gridley, Edward B. Gridley, Juliet Schonrock and Mary Gridley Bell, who were his only heirs-at-law. September 11, 1880, he executed his last will and testament and on October 15, 1880, he executed a codicil to his will.

By his will he gave his wife a substantial amount of real and personal property in fee simple. He also devised to her a life estate in other real property and provided that at her death the same should descend and vest in such of the heirs of his body as were then living, to be held by them in the shares and proportions provided by the laws of the State of Illinois then in force regulating the descent of real property.

By the thirteenth clause of his will he provided as follows:

‘Thirteenth: I give and devise to Edward B. Gridley as trustee, and to my son in law Frederic A. Bell as co-trustee, as joint tenants and not as tenants in common, for the use and benefit of my daughter Mary, now Mrs. Mary Bell, during her natural life, the following land and tenements, towit: Two sections of land in said county of McLean being sections 19 and 30 in Township 24 North, Range 5 East being the two sections of land conveyed to me by William B. and Davis Henline.

‘Also lot 3 of Assessor's Subdivision of Lots 77, 78, 79 and 80 in James Allin's Addition to Bloomington, on which is a three story brick store now occupied by I. D. Smith and Co., as a boot and shoe store.

‘It shall be the duty of said trustees to keep said land and tenements well rented, to make reasonable repairs upon the same, to pay promptly all taxes and assessments thereon; to keep the buildings thereon reasonably insured against damage by fire; and to pay over all remaining rents and income into the hands of said Mary in person and upon any assignment or transfer by the said upon any assignment or transferby the said Mary.

‘At the death of the said Mary such trust estate shall cease and be determined and the said lands shall vest in the heirs of the body of the said Mary, and in default of such heirs, shall descend to the heirs of my body then living, according to the laws of Illinois, then in force regulating descents.’

By the tenth, eleventh and twelfth clauses of the will he made similar provisions for his other three childreen, using the same language used in the thirteenth clause, except as to the names of the trustees, the name of the child and the description of the property. The codicil modified the residuary clause of the will by eliminating Juliet as one of the residuary legatees and devisees of the estate and directing that such estate vest in the testator's three children, Albert W., Edward B., and Mary, share and share alike.

The testator's son, Albert W. Gridley, died intestate, in 1895, leaving his son, Logan A. Gridley, his only descendant, and leaving a widow, who was the mother of Logan A. Gridley. The widow died December 12, 1924. Logan A. Gridley died testate Frbruary 21, 1931, leaving no descendants. He devised his estate to the First Trust & Savings Bank of Chicago, (now the First National Bank of Chicago,) as trustee, to hold one fourth for his mother, one half for his widow, Emily R. Gridley, and one fourth for his half-sister, Irene T. Hyde. His will provided that if either of the beneficiaries should predecease the testator, her share should be added to the shares of the survivor in equal parts, and each beneficiary surviving the testator was given the right by will to dispose of her share of the trust estate. Irene T. Hyde died March 6, 1939, leaving a will by which she devised her estate to the First National Bank of Chicago, as trustee for the benefit of Emily R. Gridley.

Edward B. Gridley died testate January 7, 1914, leaving no descendants and devising his entire estate to John H. Wood, a friend. John H. Wood died testate May 20, 1923, leaving all his property to Carrie E. Wood, his widow, Carrie E. Wood died intestate February 2, 1939, leaving a first cousin, Camilla M. Shelper, her only heir-at-law.

Juliet Schonrock died September 29, 1930, without children or descendants.

Mary Gridley Bell died testate November 9, 1944, without children or descendants. She left a will and three codicils thereto, wherein she appointed the People's Bank of Bloomington as executor and, after specific bequests, left the remainder of her property to said bank as trustee.

After the death of Mary Gridley Bell, the appellees, Emily R. Gridley and the First National Bank of Chicago, as trustee under the will of Logan A. Gridley, deceased, and also as trustee under the will of Irene T. Hyde, deceased, filed this suit for partition of the lands in controversy and for a construction of the wills of Asahel Gridley, Logan A. Gridley and Irene T. Hyde. Their amended and supplemental complaint set forth the facts above stated and charged that the thirteenth clause of the will of Asahel Gridley created a life estate in trust for the life of Mary Gridley Bell with remainder at her death to the heirs of her body and in default of such heirs, to the heirs of the testator's body then living, that both of these remainders were contingent during the life of Mary Gridley Bell and at her death were defeated for lack of beneficiaries, that the reversion in fee not being disposed of by the thirteenth clause, passed under the residuary clause of the will, as modified by the codicil, and vested upon the testator's death in his three children, Albert W. Gridley, Edward B. Gridley and Mary Gridley Bell, and that their successors in title, upon the death of the life tenant, became seized of an indefeasible title in fee to said property, appellee the First National Bank of Chicago, as trustee under the will of Logan A. Gridley, deceased, being the owner of an undivided 5/24 part thereof, and as trustee under the will of Irene T. Hyde, deceased, being the owner of an undivided 3/24 part thereof, appellee Camilla M. Shelper being the owner of an undivided 8/24 part thereof, and appellee People's Bank of Bloomington, as executor of the will of Mary Gridley Bell, deceased, being the owner of an undivided 8/24 thereof.

Appellants are the descendants of the brothers and sisters of the testator, Asahel Gridley. They were made defendants and appeared and filed answers and counterclaims, asserting that they are the sole heirs of the testator living at the death of Mary Gridley Bell, and as such heirs they became the owners in fee simple of said real estate upon the death of Mary Gridley Bell, by reason of the failure of issue of both Mary Gridley Bell and Asahel Gridley. The chancellor, on hearing, dismissed appellants' counterclaims for want of equity and entered a decree for partition in conformity with the prayer of appellees' amended and supplemental complaint.

It is claimed by appellants on this appeal that the testator did not use the words ‘heirs of my body’ in the thirteenth clause of his will in their literal sense, but that it was his intention by the thirteenth clause of his will, as plainly indicated upon a proper construction of the will as a whole, to limit to his heirs generally the contingent remainder created to come into possession upon the death of Mary Gridley Bell without heirs of her body. This construction of the will was not advanced by appellants in the court below, and for that reason appellees claim that appellants are not entitled to have the will so construed by this court. However, both appellants and appellees, in their respective pleadings, have asked the court to construe the will of Asahel Gridley, deceased, and it is therefore the duty of the court to construe the will in such manner as may be found to be correct and proper notwithstanding the construction contended for by either party. If a correct and proper construction of the will requires the thirteenth clause thereof to be read as though the testator had used the words ‘the heirs generally’ instead of the words ‘the heirs of my body,’ then it is the duty of this court to give to the will this construction. A court in construing a will is not limited to the constructions contended for in the pleadings. Jackman v. Kasper, 393 Ill. 496, 66 N.E.2d 678;Smith v. Burt, 388 Ill. 162, 57 N.E.2d 493, 157 A.L.R. 1118.

The object in construing a will is to determine the testator's intention and follow it as ascertained, unless contrary to some settled rule of law. It must be conceded, as appellants contend, that in ascertaining the testator's intention the will as a whole and every provision thereof must be considered in the light of the surrounding circumstances at the time of its execution. However, the intention which is to be sought for is not what may by inference be presumed to have been in the mind of the testator, but that...