Updike v. Tompkins

• Decision Date: 30 September 1881
• Citation: 1881 WL 10638,100 Ill. 406
• Parties: GEORGE W. UPDIKEv.MARY W. TOMPKINS et al.
• Court: Illinois Supreme Court

100 Ill. 406

1881 WL 10638 (Ill.)

GEORGE W. UPDIKE

v.MARY W. TOMPKINS et al.

Supreme Court of Illinois.

Filed at Springfield Sept. 30, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Tazewell county; the Hon. JOHN BURNS, Judge, presiding.

Mr. N. W. GREEN, and Mr. WM. DON MAUS, for the appellant:

The principal question presented is, whether the will is to be construed as speaking from the date of its execution, or from the death of the testatrix.

A will speaks from the death of the testator, and not from its date, unless its language, by fair construction, indicates the contrary intention. 1 Redfield on Wills, 379, 380; 21 Conn. 550*, 616.

Because of the words, “I hold a number of notes,” etc., appellees conclude that it refers to a period of time, viz: the date of the will, and not the fact of possession or ownership of notes, hence insist that only such notes as were in existence and held by testatrix at the date of the will were to be so cancelled and surrendered. Certainly such construction would be a strained and narrow one, and not admissible under the rule requiring the adoption of some unequivocal form of expression, having reference in terms to the date of the will. If the testatrix intended to restrict the operation of that clause in respect to the cancellation and surrender of notes to those only held at the date of the will, the clear and unequivocal form of expression would have been, “notes now held by me, and not those hereafter given me by my said brother;” and had such been her intention, then, as to after acquired notes, a codicil to the will would have disclosed it; but the language, “I hold,” is the mere general form of expression naturally keeping pace with the ambulatory character of the instrument, and just as applicable at the time of the decease of testatrix as at any antecedent period. The court, we apprehend, will not so construe the intention of testatrix, and if it is conceded that the mother (in case she survived the testatrix) was to have, as income, the interest of the notes of George W. Updike, taken by testatrix after the date of said will as well as those taken before, and if notes were so taken after the date of said will and before the death of said mother, and that no other notes are in controversy, then all those notes are, by the terms of said will, to be cancelled and surrendered to appellant, and the decree below is erroneous, and should be reversed.

Mr. WILLIAM E. HUGHES, and Mr. L. DEARBORN, for the appellees:

Judge Redfield clearly recognizes the law, as laid down by an unbroken line of authorities, that while a general devise of property is presumed to take effect from death, that is not the rule in cases of specific devises of personal property. He says: “Specific gifts, whether of stock or other personal estate, have been construed to have reference to the property of the testator then in existence, and if the testator dispose of the article described, either in whole or in part, and subsequently acquires more of the same description, the legacy will, nevertheless, fail as to all, except the portion not disposed of.” Redfield on Wills, p. 381, sec. 7; 1 Jarman on Wills, 593; Cochran v. Cochran, 14 Sim. 248; Slater v. Norton, 16 Ves. 197.

When a testator expresses himself in the present tense, it must relate to what is in being at the time of making the will. Abney v. Miller, 2 Atkins, 593. See, also, Goodland v. Burnett, 5 Kay & J. 347; Rudstone v. Rudstone, 2 Ves. 418; Coppin v. Fernyhough, 2 B. C. C. 291.

When a testator refers to an actually existing state of things, the language will be referred to the date of the will, and not to his death, as this is then a prospective event. Gold v. Judson, 21 Conn. 616.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Two clauses of the will of Martha M. Updike are presented for construction by this record. The third clause is this: “If I survive my mother, Mary A. Updike, it is my will that my estate, real and personal, shall descend and be distributed in the same manner as intestate estates descend and are distributed under the laws of Illinois.” And this is the fourth: “I hold a number of notes against my brother, George W. Updike,--one of these notes is for $900, and I intend that one to be cancelled absolutely at my death, and given up to him. As to the others, if I survive mother (Mary A. Updike), then at my death I want all the other notes cancelled and surrendered to George W. Updike, but if mother survives me, then George must pay the interest on the other notes until her death, and then the other notes are to be cancelled and surrendered to him, the said George; and I will that said $900 note shall be given up as aforesaid, and I declare that said George W. Updike, in case I survive my said mother, shall inherit equally in all my estate with my other heirs, notwithstanding the cancelling and surrendering of the said notes, his full share therein.”

At the time of her death testatrix held six notes against George W., aggregating $2278.53. But the $900 note spoken of in the will had been surrendered to him before the death of testatrix, and she only held one note of $1000, dated July 1, 1876, given before the will was executed. The will bore date the 23d of September, of that year, and testatrix survived her mother, and died May 24, 1880, and George W. qualified as executor of the will, and reported these notes, but claimed they were cancelled by the terms of the fourth clause of the will.

It is conceded that the $1000 note dated July 1, 1876, was...