66 Ill. App. 116 | Ill. App. Ct. | 1896
delivered the opinion oe the Court.
This was a bill in equity presented to the Circuit Court for the purpose of having construed certain provisions of the last will of Henry Mansfield, deceased.
The will provided that the testator’s personal estate should, for a period of five years after his decease, be kept invested in' interest-bearing loans secured by real estate, and that the net income therefrom and the rents from real estate after the payment of an allowance designated to his wife, an annuity designated to a. Mrs. Maggie T. Clark, taxes, repairs and insurance, should be divided quarterly among his children in the following proportion : “ To my sons, Henry Mansfield, Jr., and Nathaniel Mansfield, each ten per cent of the same; to my daughters, Eliza, Maggie, Eleanor and Sadie Mansfield, each, six (6) per cent; to my daughters, Isabelle T., Mrs. Blakeslee and Mrs. Mosher, each four (4) per cent of the said income.”
It was further provided that at the expiration of the five years and after fifty thousand dollars had been set apart and invested to secure the payment of an annuity of two thousand dollars to Mrs.- Maggie T. Clark, the principal of the personal estate should be divided among his “ several children or their descendants in the proportions hereinbefore specified; as to the income thereof during the said period of five years, as follows: To my son Henry Mansfield, Jr., and my son ¡Nathaniel S., each ten per cent of the same; to my daughters Eliza, Maggie, Eleanor and Sadie, each six (6) per cent, and to my daughters Isabelle T., Mrs. Blakeslee and Mrs. Mosher each four (I) per cent of the same.”
The only controversy is over the construction of these provisions.
Appellants contend that they dispose of but fifty-six per cent of the personal estate mentioned in the two paragraphs of the will considered, and that the remaining forty-four per cent is intestate. Appellee contends that the words “ per cent ” as used in the paragraphs means parts or shares, and that no portion of the personal estate is intestate.
The Circuit Court adopted the latter construction and held that the two sons, Henry and ¡Nathaniel, each take ten fifty-sixths, the daughters Eliza, Maggie, Eleanor and Sadie each take six fifty-sixths, and the daughters Isabelle, Mrs. Blakeslee and Mrs. Mosher each take four fifty-sixths of the personal estate.
“ Per cent ” is an abbreviation- of the Latin term per centum and means by the hundred. It is so used and understood by mathematicians, accountants and all English speaking persons having occasion to use it.
If in our construction of the two paragraphs in question we limit ourselves to the phrases where the term is used in designating the proportions in which each one of the children shall take of the personal estate, the conclusion is inevitable that the testator disposed of only fifty-six hundredths of his personal estate and income and left forty-four hundredths intestate. To so limit ourselves, however, would do violence to a well recognized canon for the construction of wills. To discover and promulgate the intention of the testator should be the single purpose of the court, and in ascertaining the intention isolated clauses or phrases will not be selected and their meaning determined without any relation, to other parts of the will. The court will look to the whole instrument and construe each part with relation to the language used in other parts which may shed any light on the controverted portions of the will. Taubenhan et al. v. Dunz, 125 Ill. 524; Jenks et al. v. Jackson et al., 127 Ill. 341; Dickison v. Dickison, 138 Ill. 541; Howe et al. v. Hodge et al., 152 Ill. 252.
In the second paragraph of this will the testator, after directing how his executors shall keep bis personal estate invested for the period of five years, provides for the distribution of the net income in the following language: “ After first paying all taxes, repairs, insurance and other expenses, and said annuity to my said wife and Mrs. Maggie T. Clark, the surplus remaining shall be by my said executors divided quarterly among my said children in the following proportions.” The use of this language clearly indicates an intention on the part of the testator to distribute all the surplus of the net income quarterly among his children. The construction contended for by appellants would have forty-four per cent of such surplus undistributed at the end of each quarter; and yet the will will be searched in vain for any direction or intimation as to the disposition or management of such remaining surplus by the executors.
In the third paragraph, after setting apart fifty thousand dollars to be invested to secure the annuity to Mrs. Clark, he provides for the distribution of the personal estate in the following language : “ Five. years after my decease the principal of said personal estate shall then be divided among my several children or their descendants in the proportions hereinbefore specified; as to the income thereof during the said period of five years, as follows,” etc. Here is a plain direction for a distribution of the entire personal estate, except fifty thousand dollars, among his children, in the same proportions that he had provided for as to the quarterly distributions of the net income. The use of the words “ principal of said personal estate ” plainly indicates an intention to dispose of the whole and not a part of it.
We think the Circuit Court discovered the true intention ■of the testator. ¡Decree affirmed.