Ward v. Caverly

• Decision Date: 08 February 1917
• Docket Number: No. 10958.,10958.
• Parties: WARD v. CAVERLY et al.
• Court: Illinois Supreme Court

276 Ill. 416

114 N.E. 924

WARD

v.CAVERLY et al.

No. 10958.

Supreme Court of Illinois.

Dec. 21, 1916.

Rehearing Denied Feb. 8, 1917.

Error to Circuit Court, Stark County; Clyde E. Stone, Judge.

Bill by Mary J. Ward against Vada Caverly and others. Decree dismissing bill, and plaintiff brings error. Reversed and remanded, with directions.

T. W. Hoopes and F. B. Brian, both of Toulon, for plaintiff in error.

J. H. Rennick and W. W. W.right, both of Toulon, for defendants in error.

CARTER, J.

This was a bill filed in the circuit court of Stark county by plaintiff in error, Mary J. Ward, for the construction of the will of Charles D. Ward, her deceased husband. Demurrers were filed by all the defendants, and one of them also filed an answer by his guardian ad litem. On a hearing the court entered a decree construing the will, but dismissed the bill for want of equity. From that decree this writ of error was sued out.

From the allegations of the bill it appears that at the time of his death, December 24, 1914, testator owned certain lots, or portions thereof, in Toulon, in said county, and also personal property valued at about $1,800, and that there were about $900 of debts against the estate. The will was dated February 22, 1913, and, after providing for the payment of funeral expenses and just debts, reads:

‘Second-After the payment of such funeral expenses and debts, I give, devise and bequeath unto my beloved wife, Mary J. Ward, all the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind or nature and wheresoever situated and whether owned by me now or acquired by me hereafter for and during her natural life, after having disposed of the tools and machines in my shop and the stock on hands, which I direct shall be sold at either private or public sale, as my executor may think best.

‘Third-At the death of my wife it is my will that all the property so devised to my wife, or so much thereof as may remain unexpended, shall be divided equally, share and share alike, between my three children, viz., Vada Caverly, wife of E. C. Caverly, Myrtle I. Brown, wife of J. H. Brown, and Charles W. Ward; and I direct that a guardian be appointed for my son, Charles W. Ward, and that his share shall be used as required in the support of my said son, and the guardian may use such portion of the principal towards his support as he may think advisable.’

The last clause nominates J. H. Brown, his son-in-law, as executor, revoking former wills. The will was duly admitted to probate January 23, 1915, and Brown appointed executor. This bill was thereafter filed by the widow, praying that the will be construed as giving her power to sell the real estate, the right to expend the money derived therefrom and the right to spend the proceeds of all the personal property after the payment of the debts, as well as the right to the income from all of said real and personal property during her lifetime so long as it should be unexpended or unsold, and that the fee-simple title of said property was vested in the testator's three children, subject to be divested by the widow exercising said power of sale. The decree construed the will as giving the widow no power to sell the real estate, and that the fee-simple title to the same was vested in the three children, subject to the life estate of the widow; that said widow was not entitled to the possession of the money of said estate after the payment of debts and expenses, but that said money, or any part thereof remaining unexpended at her death, should go to the said three children in equal shares; and dismissed the bill for want of equity at the cost of plaintiff in error.

The fundamental rule in construing a will is that the intention of the testator as expressed therein must prevail, provided it is consistent with the settled rules of law. Bradsby v. Wallace, 202 Ill. 239, 66 N. E. 1088;Wardner v. Baptist Memorial Board, 232 Ill. 606, 83 N. E. 1077,112 Am. St. Rep. 138. This intention must be found by construing the words employed by the testator in the will itself in the light of surrounding circumstances, the court being entitled to hear such extrinsic evidence as will put it in the place of the testator. Abrahams v. Sanders, 274 Ill. 452, 113 N. E. 737;O'Hare v. Johnston, 273 Ill. 458, 113 N. E. 127. Without question, a will may create a life estate with power to sell and convey the fee before the determination of the life estate, and may also create a life estate in personal property of a durable nature with power of sale of the same, and a limited remainder, after the termination of the life estate, in whatever remains. Hetfield v. Fowler, 60 Ill. 45;Kaufman v. Breckinridge, 117 Ill. 305, 7 N. E. 666;Walker v. Pritchard, 121 Ill. 221, 12 N. E. 336;Dickinson v. Griggsville Nat. Bank, 209 Ill. 350, 70 N. E. 593.

Numerous cases have been cited by counsel on each side in support of their argument as to the proper construction to be put on this will; but, while the general rules of construction must always be kept in mind, none of those rules can be absolutely decisive. The language of a decision must always be construed with reference to the facts of the particular case, and its authority is largely limited to those points of law raised on the record and necessary to the determination of the case; therefore, in the interpretation of wills, as those instruments are rarely, if ever, identical in wording, and often not even similar, the rules or precedents laid down in former decisions are frequently of little value. Black v. Jones, 264 Ill. 548, 106 N. E. 462, Ann. Cas. 1915D, 1173; O'Hare v. Johnston, supra. We shall, however, refer to a few of the cases in which the wording of the will considered is most nearly like that of the will here involved.

In Markillie v. Ragland, 77 Ill. 98, the will provided that ‘whatever may remain of my estate, real and personal,’ at the death of testator's wife, should descend to his heirs; the next clause giving the wife a life estate with power to manage the property at her discretion and deal with it as the sole owner, giving her power also, if she deemed expedient, to sell any portion of the property. It was there held that the wife had unlimited power of alienation, but that she only took a life estate, and not an estate in fee.

In Green v. Hewitt, 97 Ill. 113, 37 Am. Rep. 102, the will provided:

‘After the payment of such debts and funeral expenses, I give and bequeath to my beloved wife, Elizabeth Thompson, the farm on which we now reside [describing it], also all my personal property of every description, so long as she remains my widow; at the expiration of that time the whole, or whatever remains, to descend to my daughter, Mary Thompson.’

The opinion holds that the will passed a life estate, only, to the widow in both the real and personal property, subject to be terminated by her marriage, and that the clause ‘whatever remains' did not apply to real estate, but only to that species of personal...