Levings v. Wood

• Decision Date: 02 April 1930
• Docket Number: No. 18961.,18961.
• Citation: 170 N.E. 767,339 Ill. 11
• Parties: LEVINGS et al. v. WOOD et al. DODSON et al. v. CARNAHAN et al.
• Court: Illinois Supreme Court

339 Ill. 11

170 N.E. 767

LEVINGS et al.

v.WOOD et al.

DODSON et al.

v.CARNAHAN et al.

No. 18961.

Supreme Court of Illinois.

Feb. 21, 1930.

Rehearing Denied April 2, 1930.

Commissioner's Opinion.

Error to the Appellate Court, Third District, on Appeal from Circuit Court, Edgar County; John H. Marshall, Judge.

Application by Edward Levings and others for the construction of the will of John B. Wood, deceased. Decree disposing of legacies which had been left to several parties who predeceased the testator was revoked in part by Appellate Court (253 Ill. App. 46), and Ada Wood Dodson and others bring certiorari.

Judgment of Appellate Court reversed in part and judgment of circuit court affirmed.Atkinson & Nichols, of Bardstown, Ky., Doyle, Sampson & Giffin, of Springfield, and Berenice J. Ayer, of Chicago (C. J. Doyle, of Springfield, and A. W. Nichols, of Bardstown, Ky., of counsel), for plaintiffs in error.

Trogdon & Dole, of Paris, Acton, Acton & Snyder, of Danville, and Charles McKnight, guardian ad litem, of Paris (William M. Acton, of Danville, of counsel), for defendants in error.

EDMUNDS, C.

In a proceeding in the circuit court of Edgar county to construe the will of John B. Wood, deceased, the chancellor entered a decree disposing of legacies which had been left to several parties who predeceased the testator. From this decree certain heirs at law of the testator appealed to the Appellate Court. That court entered judgment (253 Ill. App. 46) reversing the decree in part and remanding the cause. The case is here on certiorari.

The first paragraph of the will involved provided for payment of funeral expenses and debts. By the second paragraph the testator bequeathed to his brothers, Jonathan C. Wood and Joseph P. Wood, $25,000 each, and a like amount to his niece Miriam W. Wood. By this paragraph he also bequeathed the sum of $1,000 to each of five other named legatees, including Marcia Brown, and directed that the several legacies provided for by it be paid within six months. By the third paragraph he devised a farm in Edgar county to Jesse C. Buckler and Louisa Buckler, and a house and lot in Paris, Ill., to Mary F. Brown Roberts. By the fourth paragraph he ordered the remainder of his estate, real, personal, or mixed, to be sold at public sale under certain prescribed terms. The fifth paragraph was as follows:

‘Fifth-After all properties of my estate is sold, money collected, taxes, expenses and executors paid, I give and bequeath to each of my nephews and nieces as follows: To Mary L. Wood the sum of $15,000; to Glenn C. Wood the sum of $15,000; to Jennie C. Wood the sum of $15,000; to Ada Wood Dodson the sum of $15,000; to Otho Wood the sum of $15,000; to Adria Wood Dodson the sum of $15,000; to Daniel B. Wood the sum of $10,000; to Edwin C. Wood the sum of $10,000. All of the above parties of Bardstown, Kentucky. I also give and bequeath to the children or heirs of Jesse C. Buckler and Louisa Buckler, namely, to Adria Buckler the sum of $5,000; to Belvia Buckler the sum of $5,000; to Jessie L. Buckler the sum of $5,000; to Ona F. Buckler the sum of $5,000; to Dennie Wood Buckler the sum of $5,000. The amount of legacy so bequeathed to the said Dennie Wood Buckler, shall by his parents be deposited in bank at interest or may loan on real estate until said boy arrives at the age of twenty-one years. Should there be a balance or remainder after all legacies are paid, it shall be equally divided between all those who have shared any part or parcel in my estate, executors and all shall share and share alike. I hereby nominate and appoint Stephen I. Headley and Edward Levings as my executors with full power to make all conveyances of land and title, execute all deeds necessary to carry out and execute the provisions of this instrument of writing and give to each of them $5,000 for their services as executors.’

The bill to construe was filed by the executors above named. It alleges that the testator died on August 22, 1925, that his will was admitted to probate in the county court of Edgar county on September 21, 1925, and that the executors named therein duly qualified as such. The bill alleges that Jonathan C. Wood, Marcia Brown, and Ona Buckler died before the testator; that the heirs of Jonathan C. Wood are his children, Ada Wood Dodson, Otho Wood, and Adria Wood Dodson; that the heir of Marcia Brown is her sister, Mary F. Brown Roberts; that Ona F. Buckler left her surviving her husband, Howard Porter, and an infant son, Howard Vernon Porter, and that these heirs are claiming the lapsed legacies. All of said heirs and devisees were made defendants. Answers were filed by some of the defendants and default duly taken against the others.

The chancellor found that the court had jurisdiction, and that a construction of the will was necessary; that Ona F. Buckler, Jonathan C. Wood, and Marcia Brown died prior to the death of the testator, leaving heirs as named in the bill; that the legacy to Ona F. Buckler did not lapse, but vested in her son, Howard Vernon Porter; that Jonathan C. Wood and Marcia Brown were not residuary legatees under the provisions of paragraph 5 of the will; and that the legacies of Jonathan C. Wood and Marcia Brown lapsed and sank into the residuum, ‘and should be distributed equally among the residuary legatees.’ Decree was entered accordingly. Adria Wood Dodson, Ada Wood Dodson, and Otho Wood, the heirs of Jonathan C. Wood, prayed an appeal to the Appellate Court. The Appellate Court sustained the decree in so far as it held that the legacies to Jonathan C. Wood and Marcia Brown lapsed and went into the residuum, but reversed the portion which gave the legacy of Ona F. Buckler to her son, Howard Vernon Porter, ordering this share to be included in the residuum and distributed accordingly. Adria Wood Dodson, Ada Wood Dodson, and Otho Wood are plaintiffs in error here. Howard Vernon Porter has assigned cross-error, praying reversal of the Appellate Court judgment in holding that the bequest to Ona F. Buckler lapsed.

Plaintiffs in error assert that the Appellate Court was right in holding that the legacy to Ona F. Buckler lapsed. As to the legacies to Jonathan C. Wood and Marcia Brown they contend that these should not go into the residuum, but should be distributed to the heirs at law of the testator as intestate property. They further contend that the heirs at law are entitled to share in the residuum to the extent of three twenty-fifths thereof, on the theory that there was a residuary bequest to each of the three deceased parties, and that it should go to the heirs in the same manner as the lapsed specific bequests.

In determining whether the decree of the chancellor was right in holding that the legacy to Ona F. Buckler did not lapse, but went to her heir by way of substitution, there must be borne in mind the rule that all the clauses and words of the will should, if possible, be construed as intended to have some meaning and to have been used for some purpose and should be given effect in arriving at the intention of the testator. Hollenbaugh v. Smith, 296 Ill. 558, 130 N. E. 364, 365;Defrees v. Brydon, 275 Ill. 530, 114 N. E. 336;Bergman v. Arnhold, 242 Ill. 218, 89 N. E. 1000.After expressing the above rule in Hollenbaugh v. Smith, supra, this court further said, referring to the words and clauses of the will: ‘None can be arbitrarily rejected as meaningless or surplusage.’

It has been held in several cases that, where a will devises property to one ‘or his heirs,’ or directs the executors to distribute property to one ‘or his heirs,’ it creates an alternative devise, under which the heirs may take by substitution. Pearson v. Olson, 310 Ill. 252, 141 N. E. 736;Straw v. Barnes, 250 Ill. 481, 95 N. E. 471;Ebey v. Adams, 135 Ill. 80, 25 N. E. 1013,10 L. R. A. 162. The language involved in the present case is: ‘I also give and bequeath to the children or heirs of Jesse C. Buckler and Louisa Buckler, namely’ (here setting out five names, including Ona F. Buckler). Obviously the word order and construction are not such as to clearly and forcefully create a substitutional gift to the heirs of Ona F. Buckler under the holdings of the above cases. On the other hand, nowhere else in the will does the word ‘heirs' appear. Effect may be given to the words ‘or heirs' by construing them to pass a gift over, under the principle of the cases cited. Not to do so means that they must be absolutely disregarded as surplusage. No one can have heirs while living. Ebey v. Adams, supra. There is nothing in this or any other paragraph to negative the propriety of a construction which gives them effect. So far as awkwardness of the manner of expression is concerned, attention may appropriately be directed to the portion of the fifth paragraph which immediately follows the words under consideration. While the sentence, ‘The amount of legacy so bequeathed to the said Dennie Wood Buckler, shall by his parents be deposited in bank at interest or may loan on real estate until said boy arrives at the age of twenty-one years,’ may convey an understandable meaning, it is clumsily phrased, and such style of expression, not only shows no tendency toward redundancy, but rather a proclivity to economize on words to a very noticeable degree. Having in mind this latter portion of the paragraph, to round out the proper meaning of which it is obviously necessary to supply the sense of a number of additional words, it is evident that it would be going no farther to supply the sense of the word ‘their’ between ‘or’ and ‘heirs,’ making the clause read: ‘I also give and bequeath to the children or their heirs of Jesse C. Buckler and Louisa Buckler, namely.’ The clause in this form could still be improved upon, but its meaning would be unmistakable. The propriety of supplying words, under proper circumstances, to effectuate the testator's intention has frequently been recognized by this court. McClure v....