Whitcomb v. Rodman

• Decision Date: 02 April 1895
• Citation: 40 N.E. 553,156 Ill. 116
• Parties: WHITCOMB et al. v. RODMAN et al.
• Court: Illinois Supreme Court

156 Ill. 116

40 N.E. 553

WHITCOMB et al.

v.RODMAN et al.¹

Supreme Court of Illinois.

April 2, 1895.

Appeal from circuit court, McLean county; Owen T. Reeves, Judge.

Bill by Edward L. Rodman and others against Lucinda Whitcomb and others. Complainants obtained a decree. Defendants appeal. Affirmed.Kerrick, Lucas & Spencer, for appellants.

Benjamin & Morrissey, for appellees.

This is a bill brought by Edward L. Rodman, Joseph L. Rodman, and Mary J. Rodman against the heirs and other devisees of John Rodman, deceased, to construe the will of deceased, and to grant title to certain lands alleged to have been devised by the will. John Rodman died testate July 30, 1889. At the time of his death he owned in fee the N. W. 1/4 of the N. E. 1/4 of section 27, 60 acres off of the west side of the S. E. 1/4 of section 22, the S. W. 1/4 of the N. E. 1/4 of section 22, and the S. E. 1/4 of the N. E. 1/4 of section 22, all in township 23 N., range 3 E., in McLean county. He left surviving him Mary Jane Rodman, his widow, and his only heirs at law, his children, Ann Eliza Boyce, Joseph L. Rodman, Edward L. Rodman, Lucinda Whitcomb, and his grandchild, Mary Eveline King, the sole heir and child of his deceased daughter, Mary A. Craig. The will was executed October 17, 1888, and admitted to probate July 19, 1889, and was as follows: ‘First. I will to my daughter Ann Eliza Boyce forty (40) acres of land, being the northwest quarter of the northeast quarter of section twenty-seven (27). Second. To my son Joseph L. Rodman I will and bequeath one hundred acres of land (100),-sixty acres (60) off of the west side of the southeast quarter of section twenty-two (22), forty acres (40) being the northwest quarter of the southeast quarter of section twenty-two (22). Third. To my son Edward L. Rodman I will and bequeath forty acres of land, being the northeast quarter of the southeast quarter of section twenty-two (22). Fifth. To my granddaughter, my daughter Lucinda Whitcomb two thousand dollars ($2,000). Fifth. To my granddaughter, Mary Eveline King, I give two hundred dollars ($200). The above legacies to be paid out of moneys and credits on hand, and proceeds of the sale of personal property. All of the above land being in town twenty-three (23) north, range three (3) east of the third principal meridian.’ The will contained a sixth clause, in which certain personal property was devised to the widow, and she was also given the control of the above-described lands during her life. It will be observed that the two 40-acre tracts (S. W. 1/4 N. E. 1/4 section 22 and S. E. 1/4 N. E. 1/4 section 22) owned by the testator are not mentioned in the will, and that the testator never owned the N. E. 1/4 of S. E. 1/4 section 22, which is devised to Edward L. Rodman, and that the 40 acres devised to Joseph L. Rodman laps onto the 60 acres devised to him, and includes within it the north 30 acres of the 60 acres, and that he did not own the east 10 acres of the N. W. 1/4 of the S. E. 1/4, which is devised to Joseph. The situation will be better understood by the following plats of the land; No. 1 being the land owned by the testator, and No. 2 that specifically named in the will:

Image 1 (2.61" X 2.44") Available for Offline Print

The testator, when he executed the will, and at the time of his death, was in possession of the lands owned by him. He owned no other lands. The bill prayed for a construction of the will, and that the lands be held to have vested under the will, the S. E. 1/4 of N. E. 1/4 of section 22 in Edward L. Rodman, and the S. W. 1/4 of N. E. 1/4 in Joseph Rodman, and that the widow be held to have a life estate in all the lands. The answer practically admitted the facts set up in the bill, but denied that it was the intention of the testator to devise the two 40-acre tracts in the N. E. 1/4 of section 22, or that the will was capable of construction, and claimed that said lands descended as intestate estate. The court, on the hearing, decreed substantially as prayed for in the bill.

CRAIG, J. (after stating the facts).

In the construction of a will the important question, always, is to ascertain the intention of the testator. As was well said by Chief Justice Marshall in Finlay v. King's Lessee, 3 Pet. 346: ‘The intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail, although, in giving effect to it, some words should be rejected, or so restrained in their application as materially to change the literal meaning of the particular sentence.’ See, also, Decker v. Decker, 121 Ill. 354, 12 N. E. 750. It will be presumed that a person, when he makes and publishes a will, intends to dispose of his whole estate, unless the presumption is rebutted by its provisions, or evidence to the contrary. Higgins v. Dwen, 100 Ill. 556;Society v. Mead, 131 Ill. 358, 23 N. E. 603; 2 Redf. Wills, 35. Upon an examination of the will in this case, nothing will be found tending in the least to establish an intention on the part of the testator to leave any portion of his property to descend as intestate estate. On the other hand, in view of the property owned by the testator, it is manifest from the language of the will that the testator intended to devise his entire estate. When the will was executed, and at the time of the testator's death, he owned 180 acres of land, and no more. Of this the testator, as is manifest from the will, attempted to devise 100 acres to his son Joseph, 40 acres to his son Edward, and 40 acres to his daughter Ann Eliza Boyce, making 180 acres,-all the land possessed by the testator. But while it is manifest that the testator intended to dispose of all the lands he possessed, yet the language of the will, as found in the second and third clauses, if construed literally as written, will defeat the plain intention of the testator. Shall that be done, or shall resort be had to extrinsic evidence to ascertain the real intent of the testator? In the consideration of a question of this character, in Decker v. Decker, supra, it was held: ‘While the general rule is that the intention of the testator is to be gathered from an inspection and consideration of the will, and from no other source, yet, in case of latent ambiguity,courts do and must listen to extrinsic evidence, not for the purpose of contradicting or adding to the terms of the will, but for the purpose of determining the existence or nonexistence of latent ambiguity, and to enable the court to look upon the will in the light of the facts and circumstances surrounding the testator at the time the will was made, whereby to determine the intention of the testator.’ In Wigram on Extrinsic Evidence, on the interpretation of wills, after citing cases to prove that extrinsic evidence may be resorted to, the author says ‘they might be multiplied without end,’ and adds, ‘They appear to justify the conclusion that every claimant under a will has a right to require that a court of construction, in the execution of its office, shall, by means of extrinsic evidence, place itself in the situation of the testator, the meaning of whose language it is called upon to declare.’ Quoted with approval in Society v. Mead, 131 Ill. 362, 23 N. E. 603. In Patch v. White, 117 U. S. 210-217, 6 Sup. Ct. 617, 710, it is said: ‘A latent ambiguity in a will, which may be removed by extrinsic evidence, may arise: (1) Either when it names a person...