Norton v. Jordan

• Decision Date: 11 June 1935
• Docket Number: No. 22835.,22835.
• Citation: 196 N.E. 475,360 Ill. 419
• Parties: NORTON et al. v. JORDAN et al.
• Court: Illinois Supreme Court

360 Ill. 419

196 N.E. 475

NORTON et al.

v.JORDAN et al.

No. 22835.

Supreme Court of Illinois.

April 17, 1935.

Rehearing Denied June 11, 1935.

Suit by James M. Norton and another against Carrie Norton Jordan and others, for the construction of the last will and testament of Harriet L. Milligan, deceased. From an adverse decree, defendants Lillian De Forest and others appeal.

Modified and affirmed.Appeal from Superior Court, Cook County; John P. McGoorty, judge.

George C. Otto, of Chicago, for appellants.

Cutting, Moore & Sidley, of Chicago (Merritt C. Bragdon, Jr., and William H. Avery, Jr., both of Chicago, of counsel), for appellees.

HERRICK, Justice.

A decree entered by the superior court of Cook county construed the last will and testament of Harriet L. Milligan. From that decree fourteen defendants prosecute this appeal, a freehold being involved.

Harriet L. Milligan, a widow and a resident of the city of Chicago, died testate on August 25, 1932. She left no descendant surviving and her heirs were James M. Norton and Carrie Norton Jordan. The testatrix' estate consisted of a substantial amount of personal property and one parcel of real estate. Her last will and testament, dated July 26, 1929, and a codicil thereto dated August 20, 1932, were admitted to record by the probate court of Cook county. By the second section she made thirty-two specific bequests, aggregating $104,000, to relatives, friends, and charities; by the fourth she bequeathed the residue of her estate to nine of the legatees named in the second paragraph of her will; and by the fifth she appointed Frank W. Lawton executor. The codicil reduced the bequests of three legatees and increased that of one, making the total amount of specific bequests $84,500. The controversy in the present case arises over the construction of a portion of the second section and the entire fourth section of the will, as follows:

‘Second.-I give and bequeath ten thousand dollars to my cousin Carrie Norton Jordan, of Montreal, Canada, and one thousand dollars to Beatrice Jordan Dever, who can be found through inquiry of said Carrie Norton Jordan, and, ten thousand dollars to my cousin Richard Norton, who can be found, I believe at 247 Girouard street, Montreal, Canada, and, one thousand dollars to the present Mrs. Richard Norton, wife of the said Richard Norton, and, one thousand dollars to Florence Norton, and, one thousand dollars to Isabel Norton, both of whom can be found through said Richard Norton. * * *’

‘Fourth.-I give, devise and bequeath all of the rest, residue and remainder of my property, of what nature soever and wherever situate, including all lapsed legacies, to the said Carrie Norton Jordan, said Beatrice Jordan Dever, said Richard Norton, said Florence Norton, said Isabel Norton, said Lillian De Forest, said Florence Phillips, said Frank W. Lawton, and said George C. Otto, share and share alike. In event of the death of any one or more of said last named nine persons, in my lifetime, then his or her share, in each such instance, shall go and belong to those of the said nine persons surviving at my death, share and share alike.’

On August 12, 1933, James M. Norton and Isabella Edwards Norton, his wife, filed in the superior court of Cook county a bill, which was later followed by an amended bill, for the construction of the will of the former's cousin, Harriet L. Milligan. Thirty of the thirty-two legatees, being all of the legatees excepting Richard Norton and Mrs. Richard Norton, named in the second section of the will, eight of whom, including the executor and his attorney, also are residuary legatees under section 4, were made parties defendant. Later, by the amendment to the bill, Richard Henry Norton, a nephew of James M. Norton, and Susan Lawrie Norton, his wife, were made additional parties defendant. These additional defendants disclaimed any interest in the legacies and bequests and by their bill admitted the allegations of the bill as amended. By their bill as amended the complainants claimed that the specific legacies of $10,000 and $1000 to ‘Richard Norton’ and the ‘present Mrs. Richard Norton’ were intended for the complainants, and the complainant first named was also entitled to one-ninth of the residuary estate devised to ‘Richard Norton,’ the one-ninth being devised to him by the name of ‘Richard Norton.’ The complainants further alleged that they had requested the executor and his attorney to file a bill to construe the will and to obtain the directions of the court as to the proper distribution of the legacies to ‘Richard Norton’ and the ‘present Mrs. Richard Norton,’ but that they had neglected and refused to do so. Numerous defendants, including the executor and his attorney, filed answers denying the allegations of the bill and denying that the complainants were entitled to the relief or any part of the same. The decree granted the relief sought, directing the executor to pay and deliver such sums and property to the complainants, upon the distribution of the estate, in satisfaction of such bequests as the assets would permit. By the decree the court also found, among other things, that the complainants were natural objects of the bounty of the testatrix; that she knew no person by the name of ‘Richard Norton’ or ‘Mrs. Richard Norton’ living at the time of the execution of her last will nor at the time of her death; that if the word ‘Richard’ be stricken from the will wherever it appears, sufficient language would remain to identify James M. Norton as a legatee of the sum of $10,000 and a devisee of one-ninth of the residuary estate, and to identify Isabella Edwards Norton as a legatee of the sum of $1,000 under the will. By its decree the court then construed the will to mean that the testatrix gave, devised, and bequeathed to James M. Norton the sum of $10,000 under the second section of the will, one-ninth of the residue of the estate under the fourth section, and $1,000 to Isabella Edwards Norton under the second section. The decree directed the executor, upon the distribution of the estate, if sufficient to pay in full all specific and general legacies, to pay and deliver $10,000 to James M. Norton, $1,000 to his wife, and one-ninth of the residue to the former, and in the alternative, if insufficient to pay in full all the specific and general legacies in the will, to pay and deliver to the complainants the same proportion of their specific legacies as shall be paid upon the other pecuniary legacies contained in the will. The court fixed the fees of the solicitors for the complainants at $3,000 and for the defendants at $2,500 and directed the executor to pay these fees, and further directed him to pay ‘the master's fees on the reference herein, which said master's fees are hereby taxed at the sum of two hundred and seventy-seven dollars ($227).’

James M. Norton, Carrie Norton Jordan, and Richard Lee Norton the second, were brothers and sister. Through their mother's blood they were first cousins of the testatrix and were children of Richard Lee Norton the first, and his wife. Richard Henry Norton, one of the defendants, is a son of Richard Lee Norton the second. From the evidence it appears that there were no other persons named Richard Norton, either relatives of or stangers to the blood of the testatrix, who might have been the objects of her bounty. The wife of the first Richard Lee Norton was an aunt of Mrs. Milligan. The first Richard Norton was, therefore, related to her only by marriage. Both the aunt and her husband had been dead for many years prior to the execution of the will. Their son Richard Lee Norton died April 4, 1918, and his wife died January 13, 1919. Prior to January 17, 1927, Mrs. Milligan had knowledge of the deaths of the four persons last named. The testatrix was not personally acquainted with either Richard Henry Norton (commonly known as Harry Norton) or his wife.

In prior wills dated January 17 and 18, 1927, respectively, Mrs. Milligan made a bequest of $10,000 to ‘my cousin Richard Norton, who can be found, I believe, at 29 Chesterfield avenue, Montreal, Canada,’ and $500 each to Florence and Isabel Norton, ‘both of whom can be found through said Richard Norton.’ The complainants and their daughters Isabel and Florence, on the days last mentioned and and for some time immediately prior thereto, resided at the address designated in the wills. On the day the third and last will was executed these same four persons resided at 247 Girouard street, the address specified in the will as the place where ‘Richard Norton’ could be found. Neither Richard Lee Norton the first, his wife, Richard Lee Norton the second, his wife, Richard Henry Norton, or his wife, ever resided at either 29 Chesterfield avenue or 247 Girouard street, in Montreal. Mrs. Milligan had visited the complainants and their daughters at each of these residences and in consequence knew their street address when she executed each of the three wills. She had known the complainants more than thirty years, had visited them in the city of Quebec, where they resided prior to 1925, and at Montreal, and they, in turn, on several occasions had visited the testatrix at her home in Chicago. George D. Milligan, the husband of the testatrix, died in 1926, and thereafter she visited with James M. Norton and his family and Carrie Norton Jordan and her family each year on her way to Europe. In 1928 Mrs. Milligan accompanied the complainants in their automobile from Chicago to Montreal and was their guest at 247 Girouard street. When in Montreal she stayed either at a hotel or at the houses of her cousins James and Carrie. She visited the complainants again in 1929, in October, 1930, in 1931, and in August, 1932.

The testimony of several witnesses establishes the fact that when the testatrix referred to the complainant James M. Norton by his Christian name she habitually and customarily called him ‘Richard,’ although at times ...