Olcott v. Tope

• Court: Illinois Supreme Court
• Writing for the Court: MAGRUDER
• Citation: Olcott v. Tope, 213 Ill. 124, 72 N.E. 751 (Ill. 1904)
• Decision Date: 22 December 1904
• Parties: OLCOTT et al. v. TOPE.

213 Ill. 124

72 N.E. 751

OLCOTT et al.

v.TOPE.

Supreme Court of Illinois.

Dec. 22, 1904.

Appeal from Appellate Court, First District.

Bill by John W. Tope against Nellie M. Olcott and others. From a judgment of the appellate court affirming the decree construing a will in question, defendants appeal. Affirmed.Bowles & Bowles (Thomas E. D. Bradley, of counsel), for appellant Edward J. Hammett.

Frederick Mains for appellants Nellie M. Olcott, Sarah J. Mahoney, and Fannie Dean.

Jesse A. & Henry R. Baldwin, for appellee John W. Tope, trustee.

Julius A. Johnson, for appellee Mary Spikings.

The following is the statement of facts in this case made by the Appellate Court:

‘This is a bill filed by appellee, praying for a construction of the will of Anna B. Moore, deceased, and asking the direction of the court. Letters were issued to appellee as executor named in the instrument, and he proceeded to administer the estate. September 29, 1902, he was discharged as executor. The bill states that it became necessary to sell the real estate to pay debts; that this was done under the direction of the probate court and the debts were paid; that there was left in the hands of appellee, as executor, a balance of $4,924.76 belonging to the estate, which, it is claimed, by the terms of the will appellee should hold and manage for the purposes therein stated; that appellee is advised and believes that in accordance with the provisions of the will he should invest the money in his hands for the benefit of Charles Leslie Spikings, the amount, with its accumulation, to be paid to him when he shall reach the age of 21 years; that in the event of the death of said Spikings before arriving at that age the accumulated fund shall be paid to Mary Spikings, mother of Charles Leslie Spikings; that in the event of her death before the death of Charles Leslie Spikings, and of his death before reaching the age of 21 years, the fund shall be distributed to the next of kin and heirs at law of said Anna B. Moore, deceased; that it is the right and duty of appellee to invest the funds so remaining in his hands, and the income therefrom, and to reinvest the same in such manner as will, in his judgment, be safe and promote the interests of the estate. Answers were filed by the surviving heirs and next of kin, who are nephews and nieces of Anna B. Moore, deceased, claiming that by the terms of the will any moneys remaining in appellee's hands arising from the sale of the real estate should be distributed to the legal heirs of the deceased according to the laws of descent. The decree appealed from finds, inter alia, that Mary Spikings and Charles Spikings are sole beneficiaries under the will, and that the true intent and meaning of its provisions are in accordance with the views of the executor as set out in the bill. The will is as follows:

“This memorandum I wish as my last will and testament being written and witnessed by my request. I desire Dr. J. W. Tope to act as my executor. I wish my executor to collect the rents of my farm in Leyden Tp., Cook Co., Ills., and any other indebtedness due me and pay all just debts that may be owing at my decease at the expiration of the term for which my farm is leased, I desire my executor to either lease the same again, or sell it whichever in his judgment is to the best interest of my estate, after the payment of all my debts, I desire my executor to invest the surplus rent, or in the case of the sale of the property heretofore mentioned, or any moneys derived from any source which may be owing at my decease, for the benefit of Charles Leslie Spikings, son of Charles and Mary Spikings of Chicago, Cook Co., Illinois, and to be paid to him when he shall have arrived at the age of twenty-one years.

“In case the said Charles Leslie Spikings should die before arriving at the age of twenty-one years, I desire that whatever money or property of any kind which would belong to him under the will, to go to his mother Mary Spikings, and in case of her decease prior to the decease of her son Chas. Leslie Spikings, I desire the property to be distributed to my legal heirs according to the laws of Illinois.

“Signed by me as my last will and testament this 28th day of January, 1899.

“Anna her X mark, B. Moore.

“Witnessed at her request and signed and sealed in the presence of each other this 28th day of January, 1899.

“H. S. Hubbell,

“[L. S.]

118 43d St., Chicago, Ill.

“Mrs. M. J. Bunnell.'

“State of Illinois, County of Cook-ss.: Personally appeared before me, a notary public in and for said county, Anna B. Moore, and acknowledges the above will to be her free and voluntary act.

“Given under my hand and notarial seal this 29th day of January, 1899.

“Henry S. Hubbell,

“[Seal.]

Notary Public.'

‘Anna B. Moore died the day following the execution of the above instrument, which, it appears from the bill, was contested and found to be her last will and testament.’

MAGRUDER, J. (after stating the facts).

The following opinion, delivered by a majority of the Branch Appellate Court, speaking through Mr. Justice Freeman, correctly disposes of the questions involved in this case, and is adopted as the opinion of this court:

‘It is contended in behalf of the heirs at law of Ann B. Moore, deceased, that no intention is expressed by the language of the will to devise the fee of the land, or to dispose of the principal sum derived therefrom; that having a farm, which was leased, and assuming the income therefrom would be more than sufficient to pay her debts, the testatrix intended to leave to Charles Leslie Spikings-only the surplus of said rent that might be due at the time of her death, together with any other moneys then due her estate, as a modest bequest in indication of her affection for him; that the executor has a mere power of sale, and that the proceeds must be distributed among the heirs at law, since, as is claimed, the fee was vested in them upon the death of the testatrix.

‘We are unable to agree with these contentions. It is true that ‘heirs at law are not to be disinherited by conjecture, but only by expressed words or necessary implications (29 Am. & Eng. Ency. of Law [1st Ed.] p. 352), and that a court of equity will not undertake to rectify a mistake in a will. Engelthaler v. Engelthaler, 196 Ill. 230-235, 63 N. E. 669. But where, from the language used in the will itself, the intent of the testator can be clearly conceived, and is not contrary to some positive rule of law, it must prevail, though the gift is not made in formal language. Powell v. McDowell, 194 Ill. 394-397, 62 N. E. 879, and cases there cited.

‘In the present case, there is no serious difficulty in discovering the intention of the testatrix, as expressed by the language of the will, taking into consideration all its parts. The contention of appellants is based upon the absence of words explicitly devising the real estate or its proceeds. There is no want of clearness until we come to the following: ‘After the payment of all my just debts, I desire my executor to invest the surplus rent, or in case of the sale of the property heretofore mentioned, or any moneys derived from any source which may be owing at my decease for the benefit of Charles Leslie Spikings, son of Charles and Mary Spikings, of Chicago, Cook County, Illinois, and to be paid to him when he shall arrive at the age of twenty-one years.’ The ambiguity in this is due, in part, to an equivocal or superfluous use of the word ‘or,’ and to the omission of other words implied, but not expressed, but which may be with propriety ‘supplied by the court in order to effectuate the intention of the testator as gathered from the context of the will.’ 2 Jarman on Wills, c. 16, p. 486, 60; 29 Am. & Eng. Ency. of Law, 372; Glover v. Condell, 163 Ill. 566, 45 N. E. 173,35 L. R. A. 360;Blinn v. Gillett, 208 Ill. 473, 70 N. E. 704;Lash v. Lash, 209 Ill. 595-604, 70 N. E. 1049. In the last mentioned case the will provided that the executor should ‘have one year after my decease to sell the land.’ The court finds that the intention, collected from the context of the will, was that the wife should have the use and benefit of the land during her natural life, and that at her death the land should be sold and the proceeds applied by the executor, as directed in the will. It is held that what the testator intended to express by that portion of his will was that the executor should ‘have one year after my [wife's] decease to sell the land’; that the word ‘wife’ was omitted in drafting, and that the ambiguity or apparent inconsistency on the face of the will is ascribable to that omission, which may be supplied to effectuate the intention of the testator.

‘In the case before us, the testatrix provided for the collection of the rents of her farm and any other sums due her and their application in payment of her own debts. Then she authorizes her executor either to let the farm again after the expiration of the then existing lease, or to sell it, whichever would be, in his judgment, for the best interest of the estate, thus indicating a purpose that the executor should control the farm and its proceeds after her death. Then follows the language above quoted, over the meaning of which this controversy arises. What the testatrix honestly intended to express, reading this part of her will in connection with the whole instrument, is, in substance, that the executor shall invest the surplus rent (and a surplus might be expected if he should relet the farm for a term of...