Liesman v. Liesman
| Decision Date | 06 October 1928 |
| Docket Number | No. 18435.,18435. |
| Citation | 162 N.E. 855,331 Ill. 287 |
| Parties | LIESMAN et al. v. LIESMAN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Logan County; Frank Lindley, Judge.
Suit by Mary A. Liesman, individually and as executrix, against Florence Liesman and others. From the decree, plaintiff and certain defendants bring error.
Affirmed.Fred I. Edgell and Peter Murphy, both of Lincoln, and Charles H. Woods, of Chicago, for plaintiffs in error.
Lyman S. Mangas, of Lincoln, for defendants in error.
Brown Liesman, a resident of the city of Lincoln, in Logan county, died testate on November 29, 1925, leaving him surviving Mary A. Liesman, his widow, and nine children, his only heirs at law. His estate consisted of his residence in the city of Lincoln, 441 acres of land in Logan county, 640 acres of land in the state of Oklahoma, and securities valued at approximately $44,000. His will was admitted to record by the county court of Logan county. Mary A. Liesman, the widow, was appointed executrix of the will and qualified as such. By the second, third, and fourth sections of the will, the testator disposed of all his property, and these sections are, respectively, as follows:
‘Second-After the payment of such debts and funeral expenses, I give, devise and bequeath unto my beloved wife Mary Liesman, all such part or share of the estate I may die seized of, to which she is entitled under and by virtue of the now existing laws of the state of Illinois.
‘Third-I give, devise and bequeath to my son Frank Liesman the sum of ($1,000) one thousand dollars, to be paid to him out of my estate so soon after my decease as may be practicable and convenient; that said sum of one thousand dollars so bequeathed to my said son Frank Liesman to be in full of his share as one of the heirs to my estate, unless otherwise provided herein.
Prior to the testator's death, Maude Liesman, a daughter, one of the devisees and legatees mentioned in the fourth section of the will, died without a child or descendant of a child surviving her.
On May 27, 1926, Mary A. Liesman, the widow, renounced the will, and in lieu of its provisions in her behalf elected to take her legal share of the estate. By a second instrument dated the same day she waived her right of dower and elected to take one-third of each parcel of real estate in fee simple. The first instrument was filed in the office of the county clerk and the second in the office of the circuit clerk and ex officio recorder of deeds of Logan county. Subsequently Mary A. Liesman, individually and as executrix, filed a bill of complaint in the circuit court of Logan county against the surviving descendants of the testator for a construction of the will, declaring that each of his children, except Frank Liesman, became seized in fee simple, upon the testator's death, of an undivided one-eighth of his real estate, subject to the interests of the complainant, and that the residue of the personal property should be likewise distributed. Daniel Liesman, one of the adult defendants, filed an answer to the bill. Certain grandchildren of the testator, parties defendant, were minors, and a guardian ad litem interposed an answer to the bill in their behalf. Replications were filed to the answers. The bill was taken as confessed by the adult defendants, who failed to answer. The cause was referred to a master in chancery, who, after taking evidence, reported his conclusions. Objections and exceptions to the report were overruled. The court in its decree found that, by reason of the widow's renunciation of the testator's will and her election, she became seized of an undivided one-third in fee simple of the real estate; that by the fourth section of the will the devisees and legatees named therein became entitled to life estates in the real estate in Illinois and in the personal property owned by the testator at the time of his death, with contingent remainders upon their respective deaths to their children, if any, who might survive them, or, if any child of the testator so named died without issue, to the then surviving children of the testator, including Frank Liesman, if living, in equal shares, all subject to the interest of Mary A. Liesman, the widow, under the law; that the testator in section 4 of his will meant to refer to the death of any of his children named, at any time, and intended the contingent remainders to take effect in interest upon the respective deaths of his children named as life tenants, as well after as before his (the testator's) death, and that Maude Liesman, a daughter named in section 4, having predeceased the testator leaving no issue surviving, her share became vested in fee simple in equal shares in the other children of the testator, including Frank Liesman. The complainant and the adult defendants, the children of the testator, prosecute this writ of error to review the record.
Plaintiffs in error contend that all the testator's real estate in this state, and the residue of his personal property, except the share or portion given by law to the widow, were devised and bequeathed, at the testator's death, to the children named in the fourth section of the will, in equal shares, in fee simple and absolutely, and that the share of Maude Liesman, who died without issue, was likewise vested in the surviving children of the testator, including Frank Liesman.
[1][2][3] The paramount rule in the construction of wills is to ascertain the intention of the testator and to give it effect if it is not prohibited by law. The purpose of construction is to give the will the meaning and interpretation which the testator intended it should have, and his intention will be carried out whenever it can be done without violating some established rule of law or public policy. McCormick v. Sanford, 318 Ill. 544, 149 N. E. 476;Wells v. Dalies, 318 Ill. 301, 149 N. E. 279;Brill v. Green, 316 Ill. 583, 147 N. E. 446;Bradsby v. Wallace, 202 Ill. 239, 66 N. E. 1088;Perry v. Bowman, 151 Ill. 25, 37 N. E. 680;Crerar v. Williams, 145 Ill. 625, 34 N. E. 467,21 L. R. A. 454. In interpreting wills, the law authorizes the consideration of the whole will and the determination of the intention of the testator from a consideration of all the language used, in whatever portion of the will it may be found. Thomas v. Stoakes, 328 Ill. 115,158 N. E. 269;Boys v. Boys, 328 Ill. 47, 159 N. E. 217;McClure v. McClure, 319 Ill. 271, 149 N. E. 748;Drager v. McIntosh, 316 Ill. 460, 147 N. E. 433;Baley v. Strahan, 314 Ill. 213, 145 N. E. 359;Himmel v. Himmel, 294 Ill. 557, 128 N. E. 641, 13 A. L. R. 608. A devise of a fee may be restricted by subsequent words in a will and changed to an estate for life. Drager v. McIntosh, supra; McClintock v. Meehan, 273 Ill. 434, 113 N. E. 43;Hill v. Gianelli, 221 Ill. 286, 77 N. E. 458,112 Am. St. Rep. 182;King v. King, 215 Ill. 100, 74 N. E. 89;Johnson v. Johnson, 98 Ill. 564;Bergan v. Cahill, 55 Ill. 160;Siegwald v. Siegwald, 37 Ill. 430; 2 Page on Wills (2d Ed.) § 981; 2 Preston on Estates, pp. 86, 87.
[4] The devise and bequest by the fourth section of the will to the nine named children of the testator, followed by the words, ‘share and share alike, to be theirs in fee simple absolute and forever,’ if standing alone, are clear and unambiguous and sufficient to devise the real estate in fee simple and to bequeath the personal property absolutely. In the same section, however, and immediately following the quoted words, the testator directs that, The devise of a fee is inconsistent with the subsequent provision for a gift over, which reduces the devise to a life estate. Every clause and provision in a will, if possible, should be given effect according to the testator's intention, but, where two clauses are so repugnant to each other that reconciliation is impossible, the later clause is considered as intended to modify or abrogate the earlier one. Drager v. McIntosh, supra; Dickison v. Dickison, 138 Ill. 541, 28 N. E. 792,32 Am. St. Rep. 163;Hamlin v. United States Express Co., 107 Ill. 443;Murfitt v. Jessop, 94 Ill. 158;Rountree v. Talbot, 89 Ill. 246;Brownfield v. Wilson, 78 Ill. 467; 1 Jarman on Wills (Bigelow's 6th Am. Ed.) p. 473; 1 Redfield on Wills (4th Ed.) 443.
[5][6] It is a well-established rule for the construction of wills, that, when a devise is made to a person in fee and in case of his death to another in fee, the absurdity of treating as contingent or uncertain the one event which is sure to occur to all living persons requires an interpretation of the devise over as referring only to death in the testator's lifetime, but, when the death of the first taker is coupled with other circumstances which may or may not occur, as, for...
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