Koelmel v. Kaelin
| Decision Date | 02 October 1940 |
| Docket Number | No. 25499.,25499. |
| Citation | 374 Ill. 204,29 N.E.2d 106 |
| Parties | KOELMEL et al. v. KAELIN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Action by Rudolph Koelmel and others against Dora Kaelin and others, and the Shell Oil Company, to establish title to two parcels of realty, wherein defendant Shell Oil Company counterclaimed disclaiming interest in the title and praying that a lease from defendants Dora Kaelin and others be canceled if their claim of title should fail. From a decree for plaintiffs and denying the relief sought by defendant Shell Oil Company, defendant Shell Oil Company appeals, and defendants Dora Kaelin and others cross-appeal.
Decree affirmed.Appeal from Circuit Court, Clinton County; Josiah T. Bullington, judge.
Joe T. Dickerson, George W. Cunningham, and John C. Quilty, all of Tulsa, Okl., and Craig & Craig, of Mattoon, for appellant.
Hugh V. Murray, Jr., and William C. Stephens, both of Centralia (David K. Breed, of St. Louis, Mo., of counsel), for appellees.
Wham & Wham and George V. Kempf, all of Centralia, for Rudolph Koelmel, appellee on cross-appeal.
Rudolph Koelmel filed a complaint in the circuit court of Clinton county claiming title to two parcels of real estate as devisee under the will of his father and by adverse possession for more than thirty years. With the exception of the Shell Oil Company, which will be referred to as Shell, the named defendants were the descendants, their spouses and children, of Magdalena Buehler, deceased sister of the plaintiff. These defendants, who will be called the Buehler heirs, were Dora and Ed Kaelin, Elizabeth Kaiser, Anna and Claude Hampton, Albert, Dorothy and Louise Buehler, Claude, Evelyn and Robert Reynolds, William and Billie Peck, and Marie and Walter Zipt. Claude Reynolds was represented by David K. Breed, the trustee of his bankrupt estate, and the court appointed Hugh V. Murray, Jr., guardian ad litem of Billie Peck, a minor. In their answer the heirs asserted a one-fifth interestin the title. Shell filed an answer and a counterclaim, disclaiming interest in the title, and praying that a lease from the Buehler heirs, covering one tract, be cancelled if their claim of title should fail. A decree was entered in favor of the plaintiff upon both of the grounds alleged in his complaint, and denying the relief sought by Shell. The cause is here upon the direct appeal of Shell and the cross-appeal of the Buehler heirs from the portions of the decree adverse to their respectively asserted interests.
John Koelmel died testated in 1906 owning three tracts of land. His will, duly admitted to probate, devised two of the parcels in the following language: Only the first parcel, containing 39.5 acres, is here in controversy. It actually is located in section one rather than in section eleven, and the second tract, of three acres, is in the southeast, instead of the northeast quarter of said section two. The remaining eighty acres were correctly described and are not involved in this proceeding. The plaintiff distributed, as executor, certain legacies provided in the will, paid $500 to each of the four other heirs in performance of the condition of the devise, and entered into possession of the real estate. Until the present controversy, he had openly exercised ownership without dispute, and has paid all taxes assessed against the land.
The foregoing facts are adequate for a consideration of the cross-appeal of the Buehler heirs concerning the title to the 39.5 acres. The single issue requiring determination is whether the testamentary description may properly be considered with extrinsic evidence, in order to identify this tract. When extrinsic evidence discloses latent ambiguities in a will, the testator's intent may be determined by reading the will in the light of the circumstances existing at the time of its execution. Norton v. Jordan, 360 Ill. 419, 196 N.E. 475;Bimslager v. Bimslager, 323 Ill. 303, 154 N.E. 135. The testator's express intent may not be varied, nor may words of description be added, but a part of the description, shown by parol to be false, may be stricken, and the will read as if originally composed only of the remaining language. Stevenson v. Stevenson, 297 Ill. 338, 130 N.E. 771. If this remainder is sufficient to identify with certainty land which the testator is shown by parol evidence to have owned, the property thus identified will pass. Bimslager v. Bimslager, supra; Stevenson v. Stevenson, supra; Alford v. Bennett, 279 Ill. 375, 117 N.E. 89. The evidence in the present case discloses that John Koelmel owned no property of the disputed description in section eleven; that no property having excepted from it a half acre in its southeast corner is located in section eleven, and that the testator owned only one tract with an exception of this description, being the 39.5 acres in section one. If the words ‘section eleven (11)’ be stricken from the will, the balance of the devising language conforms in all other respects to the description of the 39.5 acres. This language, containing an exception of a half acre in the southeast corner, sufficiently identifies the only parcel of like description owned by John Koelmel. It need only be mentioned that since the total value of all of the testator's property was $2,500, the devisee, being conditioned upon his paying $500 to each of the other four heirs, or an aggregate of $2,000, was in net value only $500 to the plaintiff. This circumstance, together with the absence of a residuary clause covering real estate, strengthens the presumption that the testator intended to devise his whole estate. Alford v. Bennett, supra. The court properly found title in the plaintiff as devisee, and it is unnecessary to discuss the effect of his open, notorious and clearly adverse possession for the period exceeding thirty years.
On December 23, 1936, the plaintiff executed an oil and gas lease to Shell, covering both the misdescribed parcels. Shell later discovered the defects in the title and obtained quitclaim deeds from all of the other heirs except the defendants. After negotiations with the Buehler heirs through their attorney, June C. Smith, Shell agreed to waive the question of their title and to pay them royalties on the oil and gas produced from the 39.5 acre tract, in consideration of a lease of this parcel, a deed in the name of the plaintiff covering the three...
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