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

176 Ill. 302

52 N.E. 68

HENDERSON et al.

v.HARNESS.¹

Supreme Court of Illinois.

Oct. 24, 1898.

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: ‘Sixth. I give, devise, and bequeath to my son Milton Harness, during his natural life, the following described real estate, situated in McLean county, Illinois, to wit: The southwest quarter of section thirty (30), excepting 24.75 acres off of the north end of said quarter section, by this will bequeathed to Caroline Kennedy and the heirs of her body, leaving 220 acres remaining in said quarter section, and the north half of lot three (3) of the northwest quarter of section thirty-one (31), containing 80 acres, all in township twenty-five (25) north, range four (4) east, third principal meridian; also, beginning on the half-section line running east and west through the center of section eight (8), intownship 25 north, range 4 east, third principal meridian, at the east line of the Lexington and Pleasant Hill road as now laid out and traveled, and running from thence south, along the east line of said highway, to the south line of said section eight (8); thence east, on said section line, twenty (20) rods; thence north, to the half-section line running east and west through the center of said section eight (8); thence west twenty (20) rods, to the place of beginning,-containing 20 acres, more or less. My said son, Milton Harness, to have and to hold the same during his natural life, he to have the full use and occupation of the same if he desires it, provided he shall pay all taxes and assessments levied against said land before sale for taxes, and that he shall not sell nor in any way incumber said realty during his lifetime. After the death of my said son, Milton Harness, it is my will that the real estate in this item of my will mentioned and described shall be equally divided between all the heirs of the body of my said son, Milton Harness, and their legal representatives, in accordance with the statutes of the state of Illinois in relation to descent, share and share alike, to have and to hold the same, to them and to their heirs and assigns, forever. In case my son Milton Harness, during his lifetime, shall permit said real estate to be sold for taxes, or shall or in any way incumber the same, that his life estate therein shall terminate, and the heirs of his body, in whom the title to said realty is vested, may take possession of said real estate, and use and possess the same, as if a life estate to Milton Harness had not been given therein. In case my said son, Milton Harness, shall not occupy or take possession of said real estate, then Almaron J. Moon, of Lexington, Illinois, who is hereby appointed trustee for my son Milton Harness, shall have full power to control and lease the same to the best advantage of all concerned, and, after payment of all taxes, repairs, and necessary expense of management, he shall annually pay over the residue of the rents and income from said real estate to my son Milton Harness, in person, only, and it shall not be paid on any written order or other assignment of his interest in my estate; and, at the death of my said son, all rents unpaid and accruing shall be equally divided among all the heirs of the body of said Milton Harness.’‘Tenth. It is my will that no portion of the land in this will bequeathed shall be sold or otherwise disposed of during the lifetime of my child to whom is given a life interest therein; and in the event of the termination of the life estate of either of my said children, otherwise than by death, I direct that the heirs of their respective bodies shall not sell or otherwise dispose of any part of the land in this will bequeathed to them, until after the death of the parent through whom they derived the inheritance.’ 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: ‘I give, devise, and bequeath to my son, Milton Harness, during his natural life, the following described real estate, situated in McLean county, Illinois: [Then follows a description of the land devised.] My said son, Milton Harness, to have and to hold the same during his natural life, he to have full use and occupation of the same if he desires it, provided he shall pay all taxes and assessments levied against the said land before sale for taxes, and that he shall not sell nor in any way incumber said real...