55 Ill. 160 | Ill. | 1870
delivered the opinion of the Court:
Martin Morris died, leaving a will containing the following disposition of his property:
“ First—My will is that all my j ust debts and fun eral expenses shall, by my executors hereafter named, be paid out of my estate as soon after my decease as shall by them be found convenient. First, I give, devise and bequeath to my beloved wife, Johanna Morris, all my real estate and personal property; also one cow. All, without reserve, I give unto my beloved wife.
“ N. B. In case my wife is not supported by her children, so as it may be necessary for her bodily comfort, I give her power to sell and dispose of any or either of the two lots which I now possess and own in Underhill’s Addition to the City of Peoria. Also, I hereby declare it my wish that after my wife’s decease, whatever property, real or personal, of which she may be possessed, or which she may own at the time of her decease, shall be devised and bequeathed to my faithful son, Martin, providing that he pays over unto my daughter, Julia, one hundred dollars or an equivalent.” °
The will ivas duly proimd, and after the death of the widow, Martin Morris, the son mentioned therein, conveyed the lots to appellant, William Bergan.
The widoAY, not having exercised the power to sell, died intestate, and this controversy arises between Bergan, the grantee of Martin, and the remaining heirs of the testator, as to the true construction of the will.
The first clause in the will clearly indicates the intention of the testator to devise all his property to his Avife. In the last clause the power to sell, upon a contingency, and the declaration of a wish, that his “faithful son, Martin,” should have Avhatever property the wife might die possessed of, cast some doubt upon the intention. There is some apparent contradiction. A will, however, should not be rendered void by mere repugnancy. We must gather the intention from the entire instrument. Sometimes a clause, posterior in position, will denote a subsequent intention. The gift of an estate of inheritance in lands may be restricted by subsequent Avords.
It may be regarded as a judicial maxim, that effect should be given to the several parts of a will, so as to render no component part inoperative. If the will be so construed as to have vested in the wife a fee simple, absolute, then the language as to the son is meaningless and inoperative. The intention of the testator must govern, and that must be ascertained, if possible, from the language of the instrument. If the intention was to give to the wife a fee simple estate, this was fully accomplished by the first clause, untrammeled by the subsequent provision.
The first clause made the estate certain and vested. The latter manifested another and different intention. The one is qualified by the other. The one is limited by the other so as to determine the character of the disposition intended. If the construction claimed by appellees is the true one,—that the whole property became vested in the widow, as a fee simple estate, then the declaration of the testator, as to his son, is of no force. The last clause in the will certainly created a different estate from that which had been created by the first part. If this be not true, why should any wish have been expressed as to the son? The language includes more than the mere expression of a hope or a recommendation. .It is equivalent to a devise of the property to the son, after the death of the wife.
This- will was inartificially and bnnglingly written. But courts always look with indulgence upon the ignorance and unskillfulness of testators, and the son should not be disinherited, unless by express words or necessary implication. In this case we must suppose the testator intended to make provision for his son, as well as his wife. We must construe the subsequent words as restraining and limiting those which preceded.
We are of opinion that the intention was to give the widow a life estate, and upon her death, the fee to the son, subject to the legacy to Julia. The appellant, William Bergan, is, then, entitled to the property, as the grantee of Martin Morris, Jr.
The decree is reversed and bill dismissed.
Decree reversed.
Scott, J: I cannot concur in the construction given to the will in this case.
