Vestal v. Garrett

• Decision Date: 19 June 1902
• Citation: 64 N.E. 345,197 Ill. 398
• Parties: VESTAL v. GARRETT et al.
• Court: Illinois Supreme Court

197 Ill. 398

64 N.E. 345

VESTAL

v.GARRETT et al.

Supreme Court of Illinois.

June 19, 1902.

Appeal from circuit court, Mercer county; F. D. Ramsey, Judge.

Suit by David J. Garrett and others against Martha A. Vestal and others. From a decree in favor of complainants, defendants appeal. Reversed in part.

Bassett & Bassett, for appellant Vestal.

William J. Graham and Graham & Burgess, for appellants Garrett.

Connell & Thomason, for appellees.

WILKIN, J.

On the 23d day of February, 1892, William Lafferty deeded to Richard Garrett and his two sons David J. and Douglas, jointly, the S. W. 1/4 and the W. 1/2 of the S. E. 1/4 of section 33, township 13 N., range 3 W., in Mercer county, this state. On the 13th day of July, 1893, Richard Garrett made a will by which he disposed of all his real estate, consisting of over 300 acres, besides the above-described land conveyed to him and his said sons jointly, and also of his personal property. The sixth clause of the will is as follows: ‘Sixth. I give and devise to my sons David J. Garrett and Douglas Garrett, their heirs and assigns, and to my daughter Martha A. Vestal, her heirs and assigns, the following tracts or parcels of land: Fifteen acres to David J. Garrett, fifteen acres to Douglas Garrett, and fifty acres to Martha A. Vestal, of the undivided southwest three-fourths of the south half of the southwest quarter and the west half of the southeast quarter of section 33 in township 13, north, range 3 west of the fourth principal meridian, together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining; to have and to hold the premises above described to the said David J. Garrett, Douglas Garrett, and Martha A. Vestal, their heirs and assigns, forever.’ On the 29th day of March, 1895, he made the following codicil: ‘Whereas, I, Richard Garrett, * * * have made my last will and testament, * * * in and by which I have given and bequeathed to my daughter Martha A. Vestal fifty acres of land of the undivided southwest three-fourths of the south one-half of the southwest quarter and the west one-half of the southeast quarter of section 33, township 13 north, range 3 west of the fourth principal meridian: Now, therefore, my said daughter Martha A. Vestal having received other property in lieu of said bequest, I do by this writing, which I declare to be a codicil to my last will and testament, and to be taken as a part thereof, order and declare it my will that the above-described premises be given and devised to my wife, Juliette Garrett, for her sole use and benefit during her life; and, lastly, it is my desire that this codicil be annexed to and made a part of my last will and testament, as aforesaid, to all intents and purposes. In witness whereof, I have hereunto set my hand and seal this 29th day of March, in the year of our Lord one thousand eight hundred and ninety-five.’ The testator died on the 14th day of December, 1897, leaving his widow, Juliette, and 12 children, surviving him; and thereupon his said will, with the codicil attached, was duly admitted to probate. Peyton Garrett, one of the sons, died subsequent to the death of his father, leaving a widow, Maude, and one infant son, Peyton, Jr., surviving him. Douglas Garrett and David J. Garrett, joint grantees in the Lafferty deed, with their other brothers and sisters, except the sister Martha A. Vestal, joined with their mother in a bill for partition of the said land described in the Lafferty deed; making the said Martha A. Vestal and the widow and infant son of Peyton Garrett defendants. By this bill the complainants David J. and Douglass each claimed an undivided 80 acres, or one-third of the said land, and an undivided 15 acres in the one-third interest of their father under his will; also that the undivided 50 acres of said one-third willed first to Martha A. Vestal passed to the heirs of their father, under the codicil of March 29, 1895, as intestate estate, subject to a life interest in their mother, and that each of the said 12 children of Richard Garrett, or their descendants, should take by inheritance one-twelfth of the remainder of said 50 acres in fee. Martha A. Vestal answered, admitting the death of the father and the execution of his will as alleged in the bill, and averred that the description of the land in section 33, though not strictly accurate, was sufficient to pass all his interest therein. She admitted that the codicil gave her mother a life estate in the 50 acres, but denied that it revoked the gift of the remainder in fee to her, which she claimed subject to the said life estate. Maude and Peyton Garrett, Jr., widow and infant son of Peyton Garrett, deceased, also answered the bill, alleging that the sixth clause of the will and the codicil thereto were void for uncertainty, and that the land should be partitioned among the heirs of Richard Garrett as intestate estate. On the hearing, verbal testimony was introduced by the complainants, subject to the objection of Martha A. Vestal, to the effect that the testator, between the making of his will and the codicil, gave Martha A. $2,000, and that he gave specific verbal directions about the drafting of the codicil. The circuit court decreed that the description of the land in the sixth clause and in the codicil was sufficient to pass the interest of the testator as therein provided, and that the codicil revoked the gift to Martha A. Vestal, and left the 50 acres devised to her intestate estate, except as to the life estate of the widow. This appeal is by Martha A. Vestal, Maude Garrett, and Peyton Garrett, Jr.

Martha A. Vestal, by her assignments of error, questions only the decree of the court below in so far as it holds that the codicil revoked the devise to her made by the sixth clause of the will. Maude and Peyton Garrett, Jr., assign for error the refusal of the court to hold the said sixth clause of the will and the codicil void for uncertainty. It will be proper to consider this last question first, because, if the contention of appellants Maude and Peyton Garrett, Jr., prevails in that regard, the claim of Martha A. Vestal will also be thereby disposed of. Manifestly, the testator intended by the sixth clause of his will to dispose of his entire interest in the S. W. 1/4 and the W. 1/2 of the S. E. 1/4 of said section 33. That intention is evidenced-First, by the presumption that a person who makes and publishes a will intends to dispose of his whole estate thereby, unless there is something in the will to rebut that presumption (Higgins v. Dwen, 100 Ill. 554;Society v. Mead, 131 Ill. 338, 23 N. E. 603); and, secondly, by the fact that he did dispose of all his other property by will, and attempted to devise the exact quantity of land he owned in said tracts,-that is to say, he devised to his sons David J. Garrett and Douglas Garrett 30 acres (fifteen to each), and to his daughter Martha A. Vestal 50 acres, making in all 80 acres, the undivided one-third of 240 acres which he owned jointly with his two sons. The difficulty, if any, upon this branch of the case, is to determine whether effect can be given to that intention without doing violence to settled and recognized rules for the construction of wills. Inasmuch as our statute requires all last wills and testaments to be in writing and properly witnessed, extrinsic evidence is never admissible to alter, detract from, or add to the terms of a will. If the words of the testator as to the donee and subject of the gift are unambiguous, those words cannot be varied by evidence of extraneous facts, however clearly a...