| Ill. App. Ct. | Jan 22, 1887
The first question to be decided is as to the proper construction to be given to the clause in the will of Henry B. Chapman, deceased, made for the future support of the appellee. Was it a direction, or did it leave the matter to the arbitrary discretion of his wife, the executrix appointed in the will? We are of the opinion that the court below gave the proper construction of the clause in question.
It was undoubtedly the desire of the testator that his brother, who was a poor man and becoming quite old and helpless, he then being near seventy years of age, should have a decent and comfortable support out of his large estate. Henry B. Chapman appears to have been benevolent and kind toward his brother and to have for some time aided and assisted him pecuniarily to make a support for himself and family.
It could not have been the intention of the testator to cut off his brother from a comfortable support, or to have him restricted to an insignificant sum per annum, and the balance given by his wife at her death to the “ worthy poor ” of the city of La Salle and other indifferent persons and objects. We can not but think that his wish and desire have been disregarded and his benevolent intentions toward his br< her thwarted by the will of his wife if that be carried out.
The general rule of construing wills is that the intention of the testator as expressed in the will, construed as a whole, must govern and prevail. The language in this will is quite strong: “ I rely on her (his wife) to make all needful provisions for the future wants of my brother, Sylvester.’’
If he relied upon her to do this it was certainly his will that it should be done, not that it should be wholly or in part omitted.
If the testator had not had confidence in the goodness and kindness of his wife as he recites he had, he would not have intrusted the matter to her at all, but would have chosen another in whom he did have confidence to carry out his will and good intention toward his brother, who was old • and poor, while the testator was wealthy and had good feeling toward him. He believed in the goodness and kindness of heart of his wife, and for that reason believed that she of all others would carry out his intentions in letter and spirit; therefore she was intrusted with the full title - to all his property and with the trust.
The testator wants the trust executed in behalf of his brother, and he relies upon her as the trusty instrument to carry out his will. The will does not provide that the future wants of his brother may be supplied or not at her option, but she is relied upon to do the acts desired. The language will not bear the construction contended for by appellants that the will left it a matter of discretion with his wife.
The general rule of law in construing such clauses in wills as to whether they are precatory or absolute is, that, “ when property is given absolutely to any person and the same person is, by the giver who has power to command,''recommended, entreated or wished to dispose of the property in favor of another, the recommendation, entreaty or wish, shall be held to create a trust, if the words so used as a whole ought to be construed as imperative, if the subject of the recommendation or wish be certain, and if the persons intended to have the benefit of the recommendation or wish be also certain.” Knight v. Knight, 3 Beav. 172 ; Perry on Trusts, Sec. 112; Knox v. Knox, 59 Wis. 172" date_filed="1884-01-08" court="Wis." case_name="Knox v. Knox">59 Wis. 172 (48 Am. Rep. 487).
All these elements seem to combine in the present case. As to this assignment of error we hold that no error was committed by the court below
As to the amount that was allowed it is objected that it was excessive. We have examined the evidence carefully and are of the opinion that $1,000 per annum, considering the amount and value of the estate, is not an excessive allowance for the necessary and reasonable wants of the appellee and that the amount provided for by Mrs. Chapman was inadequate. But, as we read the will, no support was due the appellee unless he really needed it.
The will does not provide that he should be paid a sum equal to his wants whether he needed it or not for his actual support. He might have means of his own or be able to make his owm living. He might never call for any support and might manage to pay his own way and in case he did so the estate would not be his debtor at all. It appears from the evidence that appellee had the legacy of $1,000 his brother left him and some property of his own, and that he never called on Esther S. Chapman for any support during her life nor of her executors after her death, till about the time this bill was filed. And it does not appear from the evidence that appellee had incurred any indebtedness on account of his living that was unpaid at the time this suit was commenced. We can not see under what principle of law he could recover at the rate of $1,000 per annum from one year after his brother’s death to the time the suit was commenced. The commencement of the suit may be regarded as a demand for support and he reasonably might be allowed from that time to the date of the trial and from that date forward ; but not prior to that under the evidence. For the réason that the court below allowed appellee the sum of $3,208.66 from June 6, 1882, to August 18, 1885, the date when the suit was commenced, that much of the said decree is reversed, and the balance of the amount due and decreed of $933.60, and the decree for the quarterly payments of $250 after the date of the decree, July 27, 1886, and in all other respects, is affirmed, and the costs of this court is awarded against the executors of Mrs. Chapman, deceased.
jDecree affirmed in part and reversed'in ypa/i't.