Henderson v. Harness
Decision Date | 24 October 1898 |
Citation | 176 Ill. 302,52 N.E. 68 |
Parties | HENDERSON et al. v. HARNESS. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, McLean county; Thomas F. Tipton, Judge.
Bill by Milton Harness against F. R. Henderson derson and others. Decree for complainant. Defendants appeal. Reversed.Frank R. Henderson and E. E. Donnelly (Wm. E. Hughes, of counsel), for appellants.
Rowell, Neville & Lindley, for appellee.
This was a bill in equity, brought by Milton Harness, against the appellants, to construe the will of his father, Isaac Harness, and to set aside certain sales of the lands described in clause 6 of the will, wherein the and others. Decree for complainant. issued on judgments rendered against the appellee. The cause was heard upon bill, answer, replication, and report of the master, and a decree rendered in favor of the appellee. The will of Isaac Harness was probated in the county court of McLean county on February 25, 1895. Clauses 6 and 10 are as follows: In 1874 a judgment was rendered against Milton Harness, in favor of one Terrell, which judgment was afterwards assigned to F. R. Henderson, one of the defendants in this bill. In the same year, another judgment, in favor of F. Oberkoetter & Sons, the other defendant in this bill, was obtained against the same parties. After the death of Isaac Harness and probate of his will, executions were sued out on these two judgments, and levied on the lands so devised to Milton Harness. Sales were made under the executions; and F. R. Henderson became the purchaser of a portion of the three hundred and odd acres of land under his execution sale, and F. Oberkoetter & Sons became the purchaser of the remainder of the lands under its execution sale.
PHILLIPS, J. (after stating the facts).
The primary question to be determined in this case is whether the interest of Milton Harness in the lands devised to him by his father, Isaac Harness, was such an interest as could be sold under executions upon judgments against Milton Harness, rendered before the death of Isaac Harness. This must be determined by the construction of the will of the latter. The particular clauses which have reference to the interest of appellee are the sixth and tenth, hereinbefore set forth. In determining the construction of the will, the intention of the testator is not to be sought for in what might possibly have existed in his mind, but must be determined from the instrument itself, which must prevail unless inconsistent with the rules of law, and the construction is to be made from the language of the will. Reference may be made to surrounding circumstances for the purpose of ascertaining the object of the testator's bounty or the subject of disposition, and for the purpose of placing the court in a position of interpreting the language used from the standpoint of the testator at the time he employed it; but surrounding circumstances cannot be resorted to for the purpose of including in the will any intention not expressed therein. The language used must be carefully considered in arriving at the testator's intention, and, if clear and unambiguous, effect should be given to it in its general and popular sense. A cardinal rule in the construction of a will is to discover the intention of the testator. Finlay v. King's Lessee, 3 Pet. 346;Bingel v. Volz, 142 Ill. 214, 31 N. E. 13.
In the clause containing the devise, the testator declares: ...
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