Papa v. Papa
| Decision Date | 17 September 1941 |
| Docket Number | No. 26197.,26197. |
| Citation | 377 Ill. 316,36 N.E.2d 717 |
| Parties | PAPA v. PAPA et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Crispino Papa against Antonio Papa and others to construe the will of Federico Papa, deceased. From an adverse decree, the plaintiff appeals.
Affirmed.Appeal from Superior Court, Cook County; Peter H. Schwaba, judge.
Michael F. Zlatnik and Robert G. Phelps, both of Chicago, for appellant.
Nicholas A. Pope and Richard E. Dooley, both of Chicago, for appellee.
This is an appeal from a decree of the superior court of Cook county which construed the will of Federico Papa, deceased. He died in 1909 leaving surviving Rosaria Papa, his widow, three sons, two daughters and certain grandchildren, children of a deceased child, as his heirs-at-law.
The controversy is as to the interest Rosaria Papa took under the will in certain real estate. The will first directed the payment of debts. The material parts are as follows:
‘I give, bequeath and devise my estate and property as follows: that is to say, an undivided one-half interest’ [then follows the legal description of several lots located in Cook county.]
‘My will is that my wife Rosaria Papa, during such time as she shall remain my widow, the whole interest and produce of the premises when as the same accrues and shall be received, shall apply to the comfortable maintenance of my said wife.’ [Various personal bequests not material here were made to certain beneficiaries.]
‘To my three sons Antonio, Chrispino and Raffaele, I give, bequeath and devise equally among themselves all the real estate, moneys and personal property wheresoever it may be found and whatsoever it may consist, to hold to them and their heirs forever.’
The will was probated in 1909 and administration of the estate closed in 1911. The case was submitted on the complaint and answer. From the pleadings it appears that soon after the death of testator, plaintiff,acting for and on behalf of Rosaria Papa, began managing the property and collecting the rents and continued to do so until April, 1930. At the termination of the plaintiff's agency, appellee Antonio Papa became the agent of Rosaria Papa in the management of the property and continued in that capacity until the beginning of the instant suit. In 1940, plaintiff filed this suit for construction of the will, claiming Rosaria Papa did not take under the will, that the provision made in the will for her was inoperative for the reason that it was repugnant and in conflict with the clause which devised and bequeathed the real estate and personal property to the plaintiff and his two brothers.
Plaintiff alleges the widow took only a dower interest. It is also alleged that during plaintiff's representation of Rosaria Papa in the management of the property he placed the rents received in a special trust fund and, at the termination of his trust, he delivered all of said money to appellee, Antonio Papa. The prayer is that Antonio Papa be declared a trustee of the fund and be required to account to plaintiff and other beneficiaries under the will for all money received from plaintiff at the termination of his agency, and also that which was collected subsequent to April, 1930.
The chancellor construed the will as giving Rosaria Papa a life estate in the property. Such construction disposed of plaintiff's claim for an accounting. He appealed directly to this court. A life estate being involved, this court has jurisdiction of such appeal. Plaintiff's right to an accounting was dependent upon the construction of the will. Although any interest Rosaria Papa had in the lots terminated by her death, which occurred during the pendency of this appeal, the question of what that interest was remains in the case, for back of it lies the answer to plaintiff's claim for an accounting.
The fundamental rule in construing wills is to ascertain the intention of the testator from a consideration of the whole will, and such intention must be given final effect if not in conflict with an established rule of law or of public policy. Brumsey v. Brumsey, 351 Ill. 414, 184 N.E. 627;Heitzig v. Goetten, 347 Ill. 619, 180 N.E. 428;Dahmer v. Wensler, 350 Ill. 23, 182 N.E. 799, 94 A.L.R. 1. The whole scope of the will must be considered and every provision given due weight to ascertain the plan of the testator in the light of the facts and circumstances surrounding him, his family and property at the time the will was made. Sartain v. Davis, 323 Ill. 269, 154 N.E. 101;Johnson v. Boland, 343 Ill. 552, 175 N.E. 794. The intention must be gathered from the language of the entire will and considered as a whole, and not by extracting therefrom certain language without regard to its relation to the balance of the will. Halderman v. Halderman, 342 Ill. 550, 174 N.E. 890. A technical construction of...
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Continental Illinois Nat. Bank & Trust Co. of Chicago v. Llewellyn
...what the testator intended. Storkan v. Ziska, 406 Ill. 259, 94 N.E.2d 185; Scott v. Crumbaugh, 383 Ill. 144, 48 N.E.2d 532; Papa v. Papa, 377 Ill. 316, 36 N.E.2d 717. Equal treatment of descendants of equal degree is preferred, rather than an excessive share being given to members of one gr......
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Barnhart v. Barnhart, 32493
...the language of any particular clause, phrase or sentence. Lydick v. Tate, 380 Ill. 616, 44 N.E.2d 583, 145 A.L.R. 1216; Papa v. Papa, 377 Ill. 316, 36 N.E.2d 717. Because, as we have often noted, no two wills are ever exactly alike, precedents in other will cases are never of controlling i......
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Kiesling v. White
...is unwarranted, particularly where, as here, the testator's intention becomes apparent from other provisions of the will. Papa v. Papa, 377 Ill. 316, 320, 36 N.E.2d 717; Pollock v. Pollock, 328 Ill. 179, 192, 159 N.E. The fourth paragraph, since it deals with the actual division of the esta......
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Vollmer v. McGowan
...407 Ill. 532, 96 N.E.2d 485; Monarski v. Greb, 407 Ill. 281, 95 N.E.2d 433; Jackman v. Kasper, 393 Ill. 496, 66 N.E.2d 678; Papa v. Papa, 377 Ill. 316, 36 N.E.2d 717. Again, the testator's intention must be ascertained from the words of the will itself, and effect must be given to the inten......