Knisely v. Simpson

• Decision Date: 18 September 1947
• Docket Number: No. 30084.,30084.
• Citation: 397 Ill. 605,74 N.E.2d 695
• Parties: KNISELY v. SIMPSON.
• Court: Illinois Supreme Court

397 Ill. 605

74 N.E.2d 695

KNISELY

v.SIMPSON.

No. 30084.

Supreme Court of Illinois.

Sept. 18, 1947.

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

Action by Mary Frances Knisely against Ruth Virginia Simpson and another for construction of the will of George W. Simpson, deceased, and accounting for rents and profits received from realty devised by the will to defendant's mother, since deceased. From a decree construing the will and ordering partition of the property and an accounting, defendant appeals.

Affirmed.

Arlo E. Bane, of Bloomington, for appellant.

Homer English, of Bloomington, for appellee.

WILSON, Justice.

A decree of the circuit court of McLean county construed the second section of the last will and testament of George W. Simpson, deceased. From this decree, one of his daughters, Ruth Virginia Simpson, prosecutes this appeal, a freehold being necessarily involved.

George W. Simpson died testate on September 6, 1936, leaving surviving as his only heirs-at-law his wife, Leonore Kline Simpson, their daughter, Ruth Virginia Simpson, and Mary Frances Knisely, Simpson's daughter by an earlier marriage. The testator's estate included personal property, four vacant lots and an improved parcel of real estate in the city of LeRoy, in McLean county. By the first section of his will, Simpson directed the payment of his debts and funeral expenses. The second section provides: ‘Second, After the payment of such funeral expenses and debts, I give, devise and bequeath unto my beloved wife Leonore Kline Simpson all my estate and effects, whatsoever and wheresoever, both real and personal of which I die possessed or seized. It is my desire that she may sell and convey any or all of my property of which I die seized or possessed in her own name and in my stead the same as I might do were I living and this at any time she thinks best. It is my wish that at the death of my said wife Leonore Kline Simpson that of what is left of my property so left by me as aforesaid my daughter Ruth V. Simpson have the sum of $500.00 (Five Hundred Dollars) and what of the furniture and fixtures I die possessed as she may select.

‘After the fulfillment of my wishes as stated above it is my wish and I give, devise and bequeath of all the rest, remainder and residue unto the said Ruth V. Simpson and Mary Frances Knisely of Toledo, Ohio, share and share alike.’

Leonore Kline Simpson died testate on December 9, 1940, without having sold any of the real estate previously described. A stipulation of the parties discloses that she had disposed of all other property devised and bequeathed to her by her husband. By her will, she made a bequest of five dollars to her stepdaughter, Mary Frances Knisely, and devised and bequeathed the residue of her estate to her own daughter, Ruth Virginia Simpson.

October 25, 1945, the plaintiff, Mary Frances Knisely, filed her complaint captioned‘Complaint to Construe Will and for Accounting’ in the circuit court of McLean county. The complaint alleges that, by the quoted portion of Simpson's will, he intended to devise to his wife a life interest in the real estate, with power to convey; that she failed to exercise the power under the will and that, by virtue of the will and the death of the life tenant, plaintiff and Ruth Virginia Simpson, hereafter referred to as the defendant, each became seized of an undivided one-half of the property. The relief sought was a decree directing defendant to account for rents and profits received from the property, commencing December 9, 1940, the date of her mother's death; that the parts and shares belonging to plaintiff and defendant be settled, and that a division and partition of the property be made.

Defendant's answer avers that the property was devised to Leonore Kline Simpson in fee and that, upon her death, it descended, under the terms of her will, to defendant, subject only to the payment of $5 to plaintiff. Answering further, defendant denied that plaintiff was entitled to a division or partition of the premises and challenged her right to an accounting.

It appears that a codefendant, a public utility company, was in possession of a portion of the property in controversy under a lease providing for a tenancy from month to month at a rental of $35 per month and that another tenant occupied a part of the property at a monthly rental of $8.

The cause was referred to a special master in chancery who found that George W. Simpson intended to, and did, devise to his wife a life estate in the real estate, with power to sell and convey the fee of any or all of the property during her lifetime and at any time she might think best, with remainder to plaintiff and defendant, share and share alike, subject to the payment of $500 to defendant; that since Leonore Kline Simpson died without exercising her power of sale over the premises, plaintiff and defendant are each seized of an undivided one-half part of the premises, subject to the payment of defendant's bequest and to the rights of the tenants. The master found, further, that defendant had expended $608.28 for repairs, decorating and taxes, and that she should render an accounting counting of all rents and profits from the property received by her, be credited for the expenditures described, and that the net rents be divided equally between plaintiff and herself. Objections to the report filed by defendant were overruled and ordered to stand as exceptions. On November 25, 1946, the chancellor entered a decree in substantial conformity with the master's recommendations and ordered partition of the property and an accounting. This appeal followed.

The decisive question presented by the pleadings and upon this appeal is whether Leonore Kline Simpson, under the will of George W. Simpson, took title in fee simple to the real estate owned by her husband or, instead, a life estate with the power of disposition. The cardinal rule of testamentary construction is to ascertain and give effect to the intention of the testator, unless he attempts to accomplish a purpose or to make a disposition contrary to some established rule of law or public policy. Riddle v. Killian, 366 Ill. 294, 8 N.E.2d 629;Norton v. Jordan, 360 Ill. 419, 196 N.E. 475. To arrive at his intention, as expressed by the words of the will itself, is the purpose of testamentary construction. Cahill v. Michael, 381 Ill. 395, 45 N.E.2d 657;Dahmer v. Wensler, 350 Ill. 23, 182 N.E. 799, 94 A.L.R. 1. In determining the intention of a testator, the words the will are to be read in the light of the circumstances under which the will was made, including the nature, extent and condition of the testator's property as well as his relations to his family and the beneficiaries named. In re Estate of Reeve, 393 Ill. 272, 65 N.E.2d 815. All the provisions of a will, including the residuary clause, are to be construed as a whole and effect given, if possible, to every part of the will. Strauss v. Strauss, 363 Ill. 442, 2 N.E.2d 699, 105 A.L.R. 1386. Isolated language in one clause should not be extracted and construed apart from its relation to the entire will. In re Estate of Reeve, 393 Ill, 272, 65 N.E.2d 815;Halderman v. Halderman, 342 Ill. 550, 174 N.E. 890. Where a testator, by his will, employs language sufficient to pass title in fee, if it be clearly shown by other clauses or parts of the will that he intended to reduce, qualify or cut down the fee granted, such...