Whittington v. Hunt, 13418.
| Decision Date | 02 February 1921 |
| Docket Number | No. 13418.,13418. |
| Citation | 129 N.E. 543,296 Ill. 133 |
| Parties | WHITTINGTON et al. v. HUNT et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Bill by William H. Whittington and another against Illinois W. Hunt and others. Decree for complainants, and defendants appeal.
Reversed and remanded, with directions.Appeal from Circuit Court, Shelby County; Thomas M. Jett, judge.
John H. Webb and Walter F. Boye, both of Vandalia, for appellants.
Truman E. Ames and George B. Rhoads, both of Shelbyville, for appellees.
December 12, 1908, Joseph C. Whittington executed his will, by which he made temporary provision for the care of his wife during her lifetime and then divided his property into three parts, giving a part to each of his two sons and dividing the third part among his four daughters. By the eighth clause of his will he provided:
‘It is my will that if any of the above-named children shall die without children living, then their share or part shall go to the other living children, share and share alike.’
At the time of making this will his family consisted of his wife, Joanna Whittington, his sons, Heston Whittington and Frank Whittington, and his daughters, Harriet Whittington Stokes, Noia Whittington Hunt, Ella Whittington Bolt, and Ida C. Whittington. All his children had children living excepting his daughters Harriet and Ida. His property consisted of about 1,000 acres of valuable farm lands in Shelby county, Illinois, and money, notes and mortgages aggregating in value over $100,000. May 16, 1913, testator made and attached a codicil to his will. In the meantime his wife had died, and April 12, 1912, he had conveyed to his two sons, by warranty deeds, the fee-simple title to the lands described and devised to them in his will. It was to meet this changed condition in his family and worldly affairs that the codicil was executed. By the codicil he revoked practically all of the original will excepting clause 8. He then gave to each of his sons the sum of $5, and then provided in the second clause:
‘It is my will that all my real estate of every kind and character of which I die seized and possessed be sold by my executors, either at public or private sale, after my decease, and the proceeds thereof, together with the money derived from all my personal property, shall be equally divided between my daughters, Ida Whittington, Harriet Whittington Stokes, Noia Whittington Hunt and Ella Whittington Blot, giving to each a one-fourth interest of my entire estate after the payment of all just debts, legacies, expenses and costs of administration in carrying out the directions and terms of this my last will and codicil attached.’
By the fourth clause of his codicil he authorized and empowered his executors to make sale of all his real estate within one year from the date of his decease, and make and execute proper deeds of conveyance to the purchasers without an order of court. February 27, 1915, Joseph C. Whittington died, leaving these instruments as his last will and codicil. The instruments were duly probated and the estate was settled in accordance with the terms of the instruments, except that the daughters on December 30, 1915, entered into a written agreement ‘to take the land of which J. C. Whittington, deceased, died possessed in place of the proceeds of said land, as provided by said will.’ All the sons and daughters above named survived the testator, and all had children living excepting the daughters Harriet and Ida. Upon the execution of the agreement above mentioned the executors conveyed to the daughters by warranty deed all real estate left by the testator. Ida C. Whittington received as her share and portion of the estate $6,751.78 in cash and notes and an undivided one-fourth interest in the real estate. The estate was closed and the executors discharged May 22, 1916. Ida C. Whittington remained single all her life, and died September 8, 1917, leaving no child or descendant of such child, but leaving her two brothers and three sisters as her only heirs at law. By her will she gave $1 to each of her two brothers, and all the rest of her estate to her three sisters. The two brothers filed their bill in the circuit court of Shelby county, asking for a construction of the will of Joseph C. Whittington, and declaring that, as Ida C. Whittington died without leaving children living, there was created by the eighth clause of the will an executory devise or bequest in favor of the surviving brothers and sisters. The decree of the circuit court was in favor of the complainants, appellees here, the court declaring that, by virtue of the eighth clause of the will of Joseph C. Whittington and the death of Ida C. Whittington and without children living, the undivided one-fourth interest of Ida C. Whittington in the real estate received by the daughters from their father's estate became and was the property in fee simple, share and share alike, of the two brothers and three sisters, and was not a part of the estate of Ida C, Whittington, and that whatever remained of the moneys and notes coming to her as her distributive share in her father's estate became and was the property of the living children of Joseph C. Whittington, and did not pass under her will. Appellants prayed and perfected an appeal from this decree, and seek to reverse the decree, contending that Ida C. Whittington took absolute title to the property when distribution was made in accordance with her father's will.
[1] We have found no case in this state directly in point, but there are many cases which will be helpful in reaching the correct conclusion. As we said in Wallace v. Noland, 246 Ill. 535, 92 N. E. 956,138 Am. St. Rep. 247, the language of different wills is so varied and the circumstances surrounding the testators are so different that decisions in will construction cases are of less value as guides or authority than is the case upon almost any other subject of the law. Aside from settled general rules and principles, each will must be construed in the light of its own peculiar phraseology and the facts and circumstances surrounding the testator at the time of its execution. When the testator made his will, in 1908, he may have had in mind the keeping of his property in the family, because he made the eighth clause of his will apply to all of his property. It appears from the disposition which he later made of his property that he abandoned this plan, if he ever entertained it. When he conveyed the farms to his two sons, which were practically all the real estate he owned, he gave them absolute title to the property, with no restrictions or limitations. There is no assurance that these sons will die leaving children living, and so it cannot be that the testator, at the time he made his codicil, had in mind that his property should go only to persons of his blood. It seems more reasonable to...
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...prevailing at the time the will was executed, and the ties connecting the testator with the objects of his bounty. Whittington v. Hunt, 296 Ill. 133, 129 N.E. 543; Wardner v. Seventh Day Baptist Memorial Board, 232 Ill. 606, 83 N.E. 1077; Abrahams v. Sanders, 274 Ill. 452, 113 N.E. 737; Ret......
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