Wardner v. Seventh Day Baptist Mem'l Bd.

• Decision Date: 20 February 1908
• Parties: WARDNER v. SEVENTH DAY BAPTIST MEMORIAL BOARD et al.
• Court: Illinois Supreme Court

232 Ill. 606

83 N.E. 1077

WARDNER

v.SEVENTH DAY BAPTIST MEMORIAL BOARD et al.

Supreme Court of Illinois.

Feb. 20, 1908.

Appeal from Circuit Court, Cook County; G. A. Carpenter, Judge.

Bill by Martha Harvey Wardner against the Seventh Day Baptist Memorial Board and others. From a decree dismissing the bill, complainant appeals. Affirmed.

Nicholas W. Hacker, for appellant.

B. F. Langworthy, for appellees.

On October 10, 1905, appellant filed her bill in the circuit court of Cook county, Ill., to clear title to certain lands, and for other relief. Demurrer was sustained to the bill as amended, and, upon appellant electing to stand by said bill, the same was dismissed for want of equity, and an appeal was taken to this court. The amended bill sets forth that Nathan Wardner, late of Rock county, Wis., on April 20, 1885, published his last will and testament, and later on made two codicils thereto (a copy of the will and codicils being given in the bill), which, so far as relates to the questions involved in this case, provide substantially as follows:

The original will provides: For payment of just debts and funeral expenses. To wife, Olive Brown Wardner, her heirs and assigns, forever, the dwelling house he then occupied as a homestead in Wisconsin, together with furniture, etc., therein; also stock in Illinois Land & Loan Company. To son Morton S. Wardner $4,000, to be paid within one year of testator's decease, less certain advancements. To each of grandchildren who survive him $200, to be invested and the principal and accumulations to be paid them upon their respective attainment of majority. Disposes of watch to grandson, N. S. Wardner, and provides for monument. ‘All the rest and residue of my estate, real, personal or mixed, of which I shall die seized and possessed or to which I shall be entitled at the time of my decease, meaning the proceeds thereof, I give and bequeath to the Seventh Day Baptist Memorial Board upon the following trust and conditions, to wit: That said board shall divide and pay the same as follows: One-third thereof to be paid to the American Tract Society, known as the American Sabbath Tract Society for Publishing Sabbath Literature; one-third thereof to be paid to Alfred University, in the state of New York, to be used for its benefit and support in such manner as the board of trustees of said university shall deem fit and proper; and one-third thereof to be paid to the Seventh Day Baptist Missionary Society; and upon this further trust and express condition, that the said Seventh Day Baptist Memorial Board shall pay or cause to be paid out of said legacy, divided as aforesaid, an annuity of $500 per annum to my wife, Olive Brown Wardner, payable semi-annually during her natural life.’ If Morton S. dies before testator, or any surviving grandchild dies before reaching majority, the portion of such beneficiary shall go to the Seventh Day Baptist Memorial Board as part of the general fund. ‘Also, I will and ordain that the executor of this my last will and testament, for and towards the full and faithful performance of my said testament, shall, with all convenient speed after my decease, bargain, sell and alien in fee simple and dispose of all my estate, real, personal or mixed, of which I shall die seized and possessed or to which I shall be entitled at the time of my decease, wherever situated, except that which I have hereinbefore devised to my said wife and grandson, N. S. Wardner; and for the doing, executing and perfect finishing whereof I do by these presents give to my said executor full power and authority to grant, alien, bargain, sell, convey and assure and dispose of all said property, real, personal or mixed, with the exception last above noted, to any person or persons and their heirs forever, in fee simple.’ Appoints his nephew, Horace Wardner, as executor.

The first codicil, dated January 3, 1888, omitting the attestation clause, reads: ‘I, Nathan Wardner, of Milton Junction, Wisconsin, made my will bearing date April 20, 1885, and do now make this codicil to be taken as a part of the same. I ratify said will in every respect, save so far as any part is inconsistent with this codicil. I give and bequeath unto my son, Morton S. Wardner, all rents, issues and profits of premises in the city of Chicago known as 1260 and 1262 West Harrison street, being two brick tenements, taxes and insurance thereon deducted, the same to be given him after my decease, to have, use and enjoy the same during his natural life, repairs thereon to be made at the expense of the said Morton, and in case he should die first, then this codicil to be of no effect.’

The second codicil, dated July 29, 1890, omitting the signature and attestation clause, and provisions as to alternate executor, gift of a watch, and erecting monument, reads as follows: ‘I, Nathan Wardner, of Milton Junction, Wisconsin, a clergyman, do make this my codicil, hereby confirming my last will made on the 20th day of April, 1885, and my former codicil made January 3, 1888, so far as this codicil is consistent therewith, and do hereby state: First, my former wife, Olive Brown Wardner, having died since the date of my said will and I having taken another wife, am impressed with the importance of changing my will by adding to said will another codicil. That all reference made in said will to the said Olive Brown Wardner I hereby withdraw. And the name of my present wife is Martha Harvey Wardner, and she shall have all that remain of the property which I shall die seized, and after paying my son, Morton S. Wardner, and the grandchildren, as specified in said will, is to use, dispose of and control according to her own judgment during her natural life, and if she shall have children by me, they shall have at their majority, or their survivors of them, the same amount, each, as is bequeathed to may son, Morton S. Wardner, as estimated by three competent, disinterested judges to be appointed by the judges of probate before whose court my will shall be proven. At the decease of my said wife, Martha Harvey Wardner, all that remains after paying the legacies made to my children and grandchildren shall be divided among the three societies as named in my will.’

The amended bill further sets out that the testator died April 6, 1894; that the will and codicils were admitted to probate in Rock county, Wis., and Horace Wardner was appointed executor; that exemplified copies of the will and codicils, order of probate, and letters testamentary were filed in Cook county, Ill.; that said executor received and disposed of all the personal estate in accordance with the will, except $400, and income therefrom, held for two of the grandchildren; that the executor departed this life, and appellant was appointed administratrix de bonis non with the will annexed; that testator died seised of a number of houses and lots and some vacant property in Chicago and vicinity, besides the homestead in Wisconsin, the average net annual rental realized by complainant from the real estate being $472.26 (the gross annual rental appears to be $1,424, of which appellant appears to have been receiving $848 and the son $576 from his life interest); that the complainant is, and has been for a number of years, in feeble health and unable to earn her own living, and is a patient at a sanitarium, under care of a physician; that in order to continue at said sanitarium she sought to dispose of certain lots, but was unable to do so because the various institutions mentioned in the will claim that the title is vested in them; that Morton S. Wardner and Eva Wardner, his wife, or divorced wife, insist that they are entitled to the income from two of the houses and lots in Chicago, and are in receipt of said income; that their acts are contrary to equity, and the interest of complainant in said lots should be determined by the court, and that the rights and interest of all parties may be ascertained and declared; that the title to the whole of the real estate vested in the said Seventh Day Baptist Memorial Board, and other institutions named in the will, may be declared subject to the power of sale vested in complainant; and that their interest may be removed as a could on her title; also prays for general relief.

CARTER, J. (after stating the facts as above).

The chief subject of contention is whether the second codicil to the will gave appellant power to sell the real estate in fee and consume or dispose of the proceeds. In reaching a conclusion on this matter it is necessary to construe the two codicils in connection with the will.

In construing a will and codicil it is the general rule that the disposition made by the will should not be disturbed further than is absolutely necessary to give effect to the codicil. The codicil revokes only so much of the will as is inconsistent with it. Vestal v. Garrett, 197 Ill. 398, 64 N. E. 345;Meckel v. Johnson (Ill.) 83 N. E. 209. ‘The first and great rule in...