Johnson v. Bolund

• Decision Date: 23 April 1931
• Docket Number: No. 20495.,20495.
• Citation: 175 N.E. 794,343 Ill. 552
• Parties: JOHNSON v. BOLUND et al.
• Court: Illinois Supreme Court

343 Ill. 552

175 N.E. 794

JOHNSON

v.BOLUND et al.

No. 20495.

Supreme Court of Illinois.

April 23, 1931.

Bill by Carl J. Johnson against William Bolund and others. From a decree dismissing the bill on exceptions to the master's report, complainant appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, Knox County; Willis F. Graham, judge.

R. C. Rice, of Galesburg (Sig. B. Nelson, of Galesburg, of counsel), for appellant.

Burnett M. Chiperfield, Claude E. Chiperfield, and Robert B. Chiperfield, all of Canton, for appellees.

ORR, J.

The construction of a will is presented by this appeal, which comes from a decree of the circuit court of Knox county, where a bill for partition was dismissed for want of equity.

John Bolund (also spelled Boland) died testate on July 3, 1911, leaving his widow, Anna Bolund, his two daughters, Ida Bolund Johnson and Anna Bolund Urelius, and his two sons, William Bolund and J. Alfred Bolund, all adults, as his sole surviving heirs at law. His will was duly probated and his estate administered upon and closed. After first providing for the payment of his debts he gave all his real and personal property to his wife for her lifetime. He then provided in the third clause that, upon her death, ‘I give, bequeath and devise my property and estate both real and personal as hereinafter stated with the express limitation that no part of my real estate shall be sold, conveyed or disposed of until after a period of ten years by any or either of my heirs,’ etc. By the fourth clause he devised 240 acres of farm land to his two sons above named, subject to his wife's life estate and to a restriction against sale within ten years, and upon condition that they pay a $5,000 mortgage indebtedness, together with payments of $4,000 to Anna B. Urelius and $5,000 to Ida B. Johnson, which bequests are made liens upon the land until paid. By the fifth and sixth clauses of the will the testator devised certain real estate to his two daughters above named. By the seventh clause he directed the executor to enforce payment of the bequests ‘by any appropriate means and if necessary to sell and convey so much of the real estate as shall be necessary to enforce the payment thereof’; and by the eighth clause he provided that upon the death of his wife all the residue of his estate should be divided equally among his sons and daughters. Then follows the clause in question: ‘Ninth-Upon the death of any of my aforesaid children, the share given, bequeathed or devised to such deceased child shall go to his or her child or children, the descendants of such deceased child or grandchild to take the share to which their children would have been entitled if living in equal parts among them. But in the event that any or either of my aforesaid children shall die without issue or without leaving any child or children or descendant of child or children surviving him or her, then the share given, bequeathed or devised herein to such deceased child or children shall revert back to my estate and go and descend to my remaining children, brother or sister of such deceased child, to be divided in equal parts among such of my surviving children and the descendants of any child that may have died leaving children.’

Anna Bolund, the widow, died in 1915. Ida B. Johnson then took possession of the real estate devised to her and remained in possession until her death, February 27, 1928, and since her death her husband, Carl J. Johnson, the appellant, has been in possession of said premises. Ida B. Johnson left as her only heirs at law her husband, her sister, Anna B. Urelius, and her two brothers, J. Alfred and William. Johnson then brought his suit for partition, making the other heirs of Ida defendants, and alleging that as surviving husband of Ida he was entitled to homestead in the premises devised to her by the will of her father, and that subject thereto he was the owner of an equal undivided one-half of the premises and entitled to his dower right in the other half; and that, subject to his rights, Anna B. Urelius, J. Alfred, and William Bolund were each entitled to an equal undivided one-third of one-half of the premises. The defendants by their answer denied that Johnson had any interest in the devised real estate after the death of his wife and claimed that the land in question was owned by the three defendants. Replication was filed, reference had to the master in chancery, and proof taken. In his report the master found the equities to be with the complainant, and construed the ninth paragraph of the will to mean that, upon the death of any of the testator's children prior to the death of the life tenant, Anna Bolund, then the share given by the testator to such deceased child should go to the descendants of such deceased child, or should go to the testatro's remaining children in case such deceased child died prior to the death of the life tenant and without leaving issue or descendants; that Ida B. Johnson survived the life tenant, and thereupon became seized of the fee in the real estate involved upon the death of the life tenant; that the rights and interests of the parties in the real estate involved had been correctly set forth in the bill, and that a decree of partition should be entered accordingly. Objections made to the report were overruled by the master and by agreement were allowed to stand as exceptions before the court, where they were sustained and the bill dismissed, as first noted.

There is no controversy as to the facts in this case. The point at issue is the proper construction of the ninth clause of the will of John Bolund, taken in connection with all other parts of the will. The whole will is to be considered and every provision given due weight. The paramount rule in construing a will is to ascertain and give effect to the intention expressed by the testator unless he has attempted to dispose of his property contrary to some rule of law or public policy. McCormick v. Sanford, 318 Ill. 544, 149 N. E. 476;Carlin v. Helm, 331 Ill. 213, 162 N. E. 873;Fay v. Fay, 336 Ill. 299,168 N. E. 357. In interpreting a particular provision of a will the law authorizes a consideration of the whole will, and the intention of the testator will be determined from a consideration of all the language he has used, in whatever portion of the will it may be found. Drager v. McIntosh, 316 Ill. 460, 147 N. E. 433.

Appellees contend that by the ninth clause of his will Bolund expressed an intent that in no event should the land devised to his daughter Ida vest in any other person than her children, or, in default of issue surviving her, to his own children who survived her-in other words, that the property should be kept in his own family. We can not agree with this contention, and a consideration of the whole instrument reveals expressions of contrary intent. The ninth clause of the will does not mention Ida or any of his three other children, but refers to them as a class. Therefore its provisions must be construed as applicable to all four of his children, in which case the devises to all of them, according to appellees' position, would be contingent upon their respective deaths with issue living. Applying this principle to other clauses of the will yields absurd results. For instance, under the fourth clause the testator gave his farm to his two sons, Alfred and William, and provided that they pay a mortgage indebtedness of $5,000, that they pay...