Karsten v. Karsten

• Decision Date: 21 June 1912
• Citation: 254 Ill. 480,98 N.E. 947
• Parties: KARSTEN et al. v. KARSTEN et al.
• Court: Illinois Supreme Court

254 Ill. 480

98 N.E. 947

KARSTEN et al.

v.KARSTEN et al.

Supreme Court of Illinois.

June 21, 1912.

Appeal from Circuit Court, Ford County; T. M. Harris, Judge.

Suit by Charles F. Karsten and others against Freda Karsten and others to construe the will of John Karsten, deceased. From a decree dismissing the amended bill, complainants appeal. Affirmed.

Cloud & Thompson, for appellants.

George A. Williams, James H. Chapman, and Frank Lindley, for appellees.

H. H. Kerr, guardian ad litem.

CARTWRIGHT, J.

John Karsten died on July 9, 1910, leaving Sofie Karsten, his widow, Mary Spellmeyer, Charles F. Karsten, and Annie Knox, his children, and Freda Karsten, Reuben Karsten, and Luella Karsten, his grandchildren, minor children of William Karsten, a deceased son. He owned 400 acres of land in Ford county, a lot and a half in the village of Melvin, and some personal property. He left a last will and testament, the material parts of which are as follows:

‘First. That I hereby Will unto my Beloved Wife all my Real and Personal Property Sofie Karsten as long as she may live after her Death and the West Half (W. 1-2) of the North East Quarter (1-4) of Section twenty-three (23) Township twenty-five (25) Range Eight (8) East (3) P. M. and the North Half (1-2) of the North West Quarter (1-4) of section twenty-four (24) Township twenty-five (25) Rainge (8) East of the Third P. M. Shall be sold to Pay all Expenses and to pay to the Hears of My Deceased Son the Sum of one Thousand Dollars Each that is to say Fridie Karsten and Ruben Karsten and Luella Karsten that if they all three Die that the Grant shall fall Back to the Original Heirs.

‘Second. That is my Will that My Daughter Mary Spellmeyer and My Son Charles F. Karsten and My Daughter annie Knox shall be Equally Devided between all three.

‘Third. That the One of My Children shall take care of one or either of us shall receive for their recompenc the sum of One Thousand Dollars, ($1,000.00)

‘Fourth. That it is My Will that My Executor plase a Monument in one year after our demice not to Exceed the sum of Three Hundred Dollars, $300.00.

‘Fifth. That any of My Heirs oing the Estate any notes shall be counted in their share.’

The widow, Sofie Karsten, died on March 2, 1911, and on May 29, 1911, Charles F. Karsten, as executor of the will, filed in the circuit court of Ford county the original bill in this case against the devisees, legatees, and heirs at law, including himself, asking the court to construe the will. The court permitted an amendment making the appellants Charles F. Karsten, in his own right, and Mary Spellmeyer and Annie Knox complainants, and the appellees Charles F. Karsten, as executor, and the three minor grandchildren and others defendants. The amended bill alleged that the provision of the second item of the will expressed in the following words, ‘That is my Will that My Daughter Mary Spellmeyer and My Son Charles F. Karsten and My Daughter annie Knox shall be Equally Devided between all three,’ was operative as a devise and bequest to the three persons named therein of the residue of the estate, real and personal, after the payment of debts, costs of administration, the cost of the monument, and the specific bequests mentioned in the will; that the testator did not own the N. 1/2 of the N. W. 1/4 of section 24, but did own the S. 1/2 of said N. W. 1/4, and owned no other land in said section; that, through the inexperience of the scrivener and the want of correct knowledge of the description of the land, the word ‘north’ was inserted instead of the word ‘south’; that the testator intended to dispose of land he owned in section 24; and that the will should be construed by striking out the word ‘north’ and making the same read, ‘the South Half of the North West Quarter.’ Charles F. Karsten, in his capacity as executor, was defaulted, and a guardian ad litem was appointed for the minor defendants. The guardian demurred specially to the bill, and the court sustained the demurrer as to all of the grounds but one. The complainants elected to stand by their amended bill, and the court entered a decree construing the will, and finding that the testator died intestate as to all of his property, exceptthe W. 1/2 of the N. E. 1/4 of section 23, which he owned, and which he ordered to be sold, and that the intestacy included any balance of the fund arising from the sale of that tract of land, after paying the expenses of administration arising from any deficiency in the personal property, the bequests to the minor children, $1,000 to the child or children who took care of the testator or his wife, and the cost of the monument. From that decree this appeal was taken.

[1] The important question to be determined is whether the testator, by the second item of his will, devised and bequeathed the residuary estate, real and personal, to the son and two daughters therein named. Inasmuch as the statute requires wills to be in writing and attested by witnesses, the settled rule is that, while surrounding facts and circumstances may be proved to explain a latent ambiguity which is not found upon the face of the instrument itself, extrinsic evidence cannot be admitted to explain an ambiguity which appears on the face of the will, or to supply its omissions and deficiencies, since that would be to make a will for the testator. Under the statute, that only is the will of the testator which is in writing and signed by him; and the statutory provisions would be rendered nugatory, and the door opened to all the evils which the law requiring wills to be in writing and attested was designed to prevent, ‘if, when the written statement failed to make a full and explicit disclosure of his scheme of disposition, its deficiencies might be supplied or its inaccuracies corrected from extrinsic source.’ 1 Jarman on Wills (4th Ed.) 409. Extrinsic evidence is a mere aid to construction, and is never admissible for the purpose of making a will for the testator, even if it establishes the fact that he intended to make one, if he did not, in fact, do so.

[2]...