Rountree v. Talbot
| Decision Date | 30 June 1878 |
| Citation | 1878 WL 10016,89 Ill. 246 |
| Parties | ELIZABETH C. ROUNTREEv.SARAH TALBOT et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.
Mr. JAMES M. ROUNTREE, for the appellant.
Messrs. J. A. & A. L. WATTS, for the appellees.
This was an action of ejectment, by Elizabeth C. Rountree, against Sarah Talbot and another, wherein there were a verdict and judgment for the defendants, and the plaintiff appeals. The claim of title by both parties was under the will of Harry H. Talbot, deceased, the main question presented upon the record being on the construction of the will, whether or not thereunder the defendant Sarah Talbot took a life estate in the premises in controversy, viz: lots 40 and 42, in Barger's addition to Nashville. The material clauses of the will are: 1st, I give, devise and bequeath to my wife, Sarah Talbot, during her natural life, the possession, use, control, rents, issues and profits of all my real estate now owned by me and hereinafter described, so far as the same remains undisposed of at my death, and any other real estate hereafter acquired by me and owned by me at the time of my death, also all my household and kitchen furniture, goods, chattels, moneys and effects belonging to me at the time of my death, to have the said personalty as her own with authority to sell and dispose thereof as she may deem best, but subject to the payment of the bequest to Elizabeth C. Rountree, hereinafter made.
2d. I give, devise and bequeath to my daughter, Elizabeth C. Rountree, in fee simple, lots No. 40 and 42, in Barger's addition to Nashville, and the sum of $150 yearly as long as she lives, to be paid her in half-yearly installments of $75 each, to be paid her at the Washington County Bank, in Nashville, Illinois, on the first days of January and July promptly, by my wife or my executor, as they may agree, etc.
3d. I give, devise and bequeath to my granddaughter, Ida Rountree, in fee simple, subject to the right of my wife, Sarah Talbot, to take and use the rents, during her lifetime, lots No. 6 and 9, in Robert S. Coffey's addition to Nashville, the possession and rents to go to her on the death of my wife.
4th. I give, devise and bequeath to my granddaughter, Sophia Brown, in fee simple, subject to the right of my wife, Sarah Talbot, to use the rents, during her lifetime, lots 7 and 8 and the west half of lots No. 6 and 9, in Robert S. Coffey's addition to Nashville, the possession and rents to go to her on the death of my wife.
5th. I give, devise and bequeath to my daughter, Emily Brown, in fee simple after the death of my said wife, lot No. 8 and the east third of the south two-thirds of lot No. 6, both in block No. 4, in the town of Nashville, and all the residue of my goods, chattels, household and kitchen furniture, moneys and effects remaining unexpended after my wife's death, subject, however, to the payment, every six months, of the bequest to Elizabeth C. Rountree during her natural life as hereinbefore provided for.
There are no extrinsic circumstances in evidence to aid in the construction of the will, but it is left to be construed by itself alone.
In favor of the construction claimed by appellant, Elizabeth C. Rountree, that lots 40 and 42 were given to her clear of any life estate, three points are made by her counsel. First, that the rule of law is, that where there are two clauses in a will repugnant to each other, the first must be rejected and the latter prevail; and thus the second clause of the will, giving the lots to appellant in fee simple, must, as respects these lots, supersede the first clause, which gives to the wife of the testator, during her natural life, the use of all his real estate.
If two parts of a will are totally irreconcilable, the subsequent part is to be taken as evidence of a subsequent intention. But this rule is only adopted from necessity, to prevent the avoiding of both provisions for uncertainty. It is only applied in those cases where the intention of the testator can not be discovered, and where the two provisions are so totally inconsistent that it is impossible for them to coincide with each other or with the general intention of the testator. Covenhoven v. Shuler, 2 Paige, 129. The great and leading principle in the construction of wills is, that the intention of the testator, if not inconsistent with the rules of law, shall govern; and this intention is to be ascertained from the whole will taken together. Ibid. Courts will, if possible, adopt such construction as will uphold all the provisions of the will. 1 Redf. on Wills...
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