45 N.E.2d 657 | Ill. | 1942
Frederick D. Michael, a citizen of Cook county, died December 28, 1938, leaving a last will, in which he designated Frederick Michael of Greensboro, North Carolina, sole executor. The will was duly probated in the probate court of Cook county, but because of nonresidence of the named executor, Martin J. O'Brien as Public Administrator of Cook county was appointed administrator with the will annexed. October 29, 1939, O'Brien, as administrator with the will annexed, filed a complaint in the circuit court of Cook county to construe the last will of said Frederick D. Michael. Martin J. O'Brien died while in office, and John F. Cahill, who was appointed Public Administrator of Cook county, was substituted as plaintiff in his place. Appellant Frederick Michael filed an answer to the effect the will properly construed gave him the entire residuary estate, and the heirs-at-law also answered claiming the will was so uncertain and ambiguous that it amounted to an incomplete testamentary disposition, and therefore the deceased died intestate.
Service was had upon all of the heirs, devisees and legatees of Frederick D. Michael, deceased, and issues formed upon the respective answers filed to the complaint. *398 The actual controversy is between Frederick Michael, who was not an heir-at-law of the deceased, mentioned in the will as the residuary legatee, and the heirs-at-law of Frederick D. Michael, deceased, who were not mentioned in the will at all. The will is as follows:
"WILL
I, Frederick D. Michael, of the City of Lexington, Norrh Carolina, a bachelor, and having no descendents, make, publish and declare this instrument as my last will and testament.
FIRST: Without the necessity of first obtaining an order or allowance by the Probate Court, my executors after my death shall pay all of my just debts and the hereinafter mentioned expenses of my last illness and funeral.
SECOND: Upon my death, wherever I happen to be, I hereby direct that my executors shall order the undertaker in said place to embalm my body, place it in a suitable coffin and ship it to the undertaker at Lexington, North Carolina. I furthermore direct my executor to instruct said undertaker at Lexington, North Caroline, to bury my body at the Shiloh Church Cemetary in Davidson County, North Carolina, by the grave of my dear father and mother; to have the grave dug; to get a suitable tombstone for my grave, and to secure the services of the Shiloh Church minister to officiate during said burial. I also direct my executor to pay all of the expenses connected with the duties set forth in this paragraph out of the general assets of my estate.
THIRD: I give, bequeath and device all the rest and residue of my estate, whether real or personal, and wheresoever situated, share and share alike, to my first cousin, Frederick Michael, son of R.L. Michael, 311 East Hendrix Street, Greensboro, North Carolina. If my cousin, Frederick Michael, shall have died before me, his or her share shall be delivered per stirpes to his descendants living at my death:
FOURTH: I nominate and appoint Frederick Michael, of 311 East Hendrix Street, Greensboro, North Carolina, sole executor of this will; said executor to serve without bond, and generally have full power and authority to deal with my said properties in the same manner that I could do if living. No property should be sold until a reasonable price can be had. And the executor in making distribution of the principal hereunder, may do so in money, securities or other property, and he will first deduct his necessary expenses and salary for any time he has put in managing and acting as such executor; and his judgment as to what shall constitute a just and proper division or apportionment among the beneficiaries shall be binding and conclusive upon all parties. *399
FIFTH: All other wills or documents of any kind previously written by me is hereby cancelled and marked void, as this is intended to be my last will.
IN WITNESS WHEREOF I have hereunto set my hand to this, my last will and testament, on this 13th day of May A.D. 1936.
FREDERICK D. MICHAEL.
We hereby certify that FREDERICK D. MICHAEL, the testator named in the foregoing Instrument of writing, subscribed his name thereto, on this day, and to us declared the same to be his Last Will and Testament; and that we subscribed our names hereto as witnesses in the presence and at the request of said testator, and in the presence of each other, and at the time of the execution of said Instrument, as aforesaid, and of our subscribing the same as witnesses, the said testator was of sound and disposing mind and memory to the best of our knowledge and belief.
WITNESS our hands in the City of Miami, Florida, this 13th day of May, A.D. 1936.
NAME ADDRESS
B.A. Trussell 125 N.E. 1st St. Miami, Florida
A.G. Seagrut Patricia Hotel Miami, Florida
M. Antoinette R. 100 Bedford Bl. Miami, Harden Florida"
Upon a hearing the circuit court of Cook county decided that Frederick Michael was the only person, legatee and devisee to take the property of the deceased under said will. Upon appeal the Appellate Court for the First District held the will was so uncertain the deceased did not dispose of his estate to anyone, and therefore died intestate as to the whole of his estate, the same as though no will had ever been made. We have allowed an appeal to this court.
The contention made by appellant is that the will clearly and distinctly devises the entire residuary estate to Frederick Michael, and that the ambiguous statements contained in the will hereinafter referred to can either be construed as being consistent with such a devise, or may be properly disregarded as contrary to the manifest intention of the testator. On the other hand, the appellees contend (a) that the whole context of the will, including expressions which are claimed to be contradictory or repugnant by implication, *400 show that no complete will in fact was ever made, because it is a case of an attempted will in which there is a hiatus or gap, which causes it be incomplete; and (b) that the will shows upon its face the property is to be divided, and nowhere specifies appellant is to take the undivided whole estate; and therefore the residuum was not disposed of, leaving it to descend as intestate property.
There are certain fundamental rules which govern the construction of wills. And at the outset we may say that cases upon the construction of wills do not have the controlling force of precedents that they do in other cases for the reason that the form of a will does not follow a common standard, such as do deeds, leases, contracts and other similar written documents, but a will is a writing found in a great variety of forms, and executed under circumstances peculiar to each individual case.Walker v. Walker,
In order to construe a will the court will examine the surrounding circumstances for the purpose of placing itself in the position of the testator as it existed when the will was made. (Himmel v. Himmel,
Turning now to an examination of the will under consideration, which both parties seem to concede was prepared by the testator himself, we find he describes himself as a bachelor having no descendants, who first gives directions to his executors to pay debts, expenses of last illness and funeral expenses, without an order of the probate court. It next directs his executors to make arrangements for his burial in the family lot in Lexington, North Carolina, beside his father and mother, and to get a suitable tombstone, and for certain church officials to officiate at the funeral, which expenses are to be paid out of the general assets of the estate. The third clause is the one concerning which there is the most controversy. It bequeaths and devises "all the rest and residue of my estate, whether real or personal, and wheresoever situated, share and share alike, to my first cousin, Frederick Michael, son of R.L. Michael, 311 East Hendrix street, Greensboro, North Carolina," and then contains a provision that if such devisee shall have died before the testator such share shall be delivered per stirpes to his descendants living at the testator's death. It is asserted that while this clause would make a definite devise to Frederick Michael of all of the *402 estate, not necessary for the payment of debts and funeral expenses, without the words share and share alike, nevertheless the use of these words has the effect not of making the will ambiguous, but of rendering it an incomplete and unfinished will, and therefore no will at all.
It is further contended by appellees that if the words "share and share alike" be disregarded in the construction of the will, its meaning would be completely changed and the effect would be that of the court making the will instead of the deceased. It is also urged that the fourth paragraph of the will, nominating Frederick Michael as executor, which makes provision that he may deduct his necessary expenses and salary, and use his judgment as to what shall constitute a just and proper division or apportionment among the beneficiaries, indicates the will is incomplete because only one beneficiary is actually named, from which it necessarily follows that to make a division there was somebody else in mind, whose name was omitted.
It is our first duty to examine the will in the light of the surroundings of the testator, and see what may be gathered from within its four corners. Frederick Michael, the designated devisee, was well known to the testator and was on friendly terms with him. He was not an heir-at-law, but the son of an heir-at-law. There were forty-four heirs-at-law, some of whom were known to the testator, among which were some whom he greatly disliked and others with whom he appeared to be on good terms, but most of whom he had not known or been in touch with for more than twenty-five years. A number of circumstances, such as written directions to appellant found in the safety box of deceased, but not delivered, and evidence of similar import, have been proven, which go beyond the permissible proof of surrounding circumstances which may be considered by the court. Quigley v.Quigley, supra.
Considering the will in the light of the permissible surrounding circumstances, the intention of the testator may be gathered upon the following matters: (1) he wished to *403 die testate; (2) he desired his property be administered by an executor; (3) he canceled all previous wills or documents; (4) he intended Frederick Michael to be a beneficiary; (5) he intended the descendants of Frederick Michael to be beneficiaries in case the latter died before he did; (6) he failed to name any of his heirs-at-law as beneficiaries; (7) he provided that his just debts be paid; (8) he desired to be buried in a certain place with certain ceremonies; (9) the named beneficiary was designated as a certainty, being identified as the son of R.L. Michael, living at a given address. The matters on the face of the will which appear to be inappropriate, inconsistent or contradictory are the following: In the third paragraph he uses the words "share and share alike" as applicable to a single beneficiary. In the same paragraph he refers to Frederick Michael as "my first cousin," when as a matter of fact he was a grand nephew. In the same paragraph, in disposing of the share of Frederick Michael in case of prior death, he refers to it as "his or her share." In the fourth paragraph, after directing the executor to make distribution, he provides the executor may deduct his necessary expenses and salary, and in the same paragraph recites the judgment of the executor of what shall constitute a just and proper division among the beneficiaries shall be binding upon the parties. In addition there are a number of misspelled words.
Considering the will itself and these matters of intention which are fairly obvious, it is clear the testator intended not only that Frederick Michael, but that the children of Frederick Michael, in case of the latter's death, should be beneficiaries. We are required to ascertain the meaning of the words the testator used. (Dollander v. Dhaemers, supra; Knight v. Knight,supra; Brill v. Green,
It is asserted that by the use of the words "share and share alike" before the name "Frederick Michael," in the third paragraph, it is absolutely necessary to conclude that the latter, under the will, was to share with some one else, but to infer such a fact there must be such a probability, which arises from an examination of the will, which is so strong it cannot be supposed any other intention existed. (Pontius v. Conrad, supra;First Trust Savings Bank of DeKalb v. Olson,
It is also to be observed that the disposing words give the entire residuary estate to Frederick Michael. The words "share and share alike" are not disposing words, but only words which are intended to show how the beneficiary or beneficiaries participate in the property. The Appellate Court found the deceased died intestate. The court will prefer any construction of a will to avoid intestacy. (Hartwick v. Heberling,
In construing a will the courts have not only stricken words from a will, but have inserted or transposed words in order to arrive at the true intention of the testator. In Jarman on Wills, 5th ed. vol. 2, page 53, after citing a number of illustrative cases, it is said: "These cases also exemplify a rule * * * that where there is a clear gift in a will it cannot afterwards be cut down except by something which with reasonable certainty indicates the intention of the testator to cut it down." To the same purpose Tripp v. Krauth,
It is also said in Jarman on Wills, supra, "It is clear that words and passages in a will, which are irreconcilable with the general context, may be rejected, whatever may be the local position which they occupy; for the rule which gives effect to the posterior of several inconsistent clauses must not be so applied as in any degree to clash or interfere with the doctrine which teaches us to look for the intention of a testator in the general tenor of the instrument, and to sacrifice to the scheme of disposition so disclosed any incongruous words and phrases which have found a place therein."
One of the earliest applications of this principle is to be found in Smith v. Pybus, 9 Vesey, 566, where a will provided a certain sum should be equally divided between Martha Briggs, Charles Small Pybus and Catherine Amelia Pybus "to them and their heirs or the survivor of them in the order they are nowmentioned." In referring to the last words the chancellor said: "The proposition, equally to divide a fund between two persons in a given order, is mere nonsense, directly repugnant. There can be no order, in which they are to take, if it is to be devided: there can be no division, if there is an order, in which they are to take. * * * They are insensible, as coupled with such preceding words. The only question therefore is, whether words, having a plain meaning, are to be rejected for the sake of words, of which you do not see the sense or meaning." The judgment of the court rejected the words as having no effect whatever. The reasoning of this case is apt here, as the words "share and share alike" are applied solely to Frederick Michael, and to no one else. They do not constitute a clear provision to cut down the gift to Frederick Michael, since he is specifically named, and the persons with whom he might share are left entirely to conjecture. "Share and share alike" does no more than make us guess there was a forgotten devisee, which is short of the certainty required. Tripp v. Krauth, supra. *407
While, as pointed out above, holdings in other cases are not of binding effect in any case except as to the will directly involved, yet numerous examples have occurred in this State, in which words were rejected, added or transposed. Thus in Jenne v.Jenne,
Halderman v. Halderman,
Appellees contend that the will nowhere says Frederick Michael is to take the undivided whole estate. Just what they mean by the term "undivided" is not made clear. However, the will after providing for the payment of debts and funeral expenses does devise "all the rest and residue *408 of my estate," which was the sole estate subject to disposition. The claim of appellees that there is a hiatus or gap in the will by a failure to complete it is not sustained, because there is nothing in the will to indicate there was such a gap or hiatus. When the "rest and residue" was given to Frederick Michael there could be no gap to be filled by other beneficiaries. The words "share and share alike" might have some peculiar meaning to the testator, but it certainly could not have the meaning by implication or otherwise to furnish a sure basis upon which to say the testator intended some unknown persons to further share in his estate.
Appellees have cited cases which they assert are authority for holding the words in the will indicate an uncertain or incomplete devise. In Rodisch v. Moore,
Appellees place great reliance upon Hampton v. Dill,
354 Ill. 415 . We do not think it has any application. The testator made a will, and provided for a disposition of his property only in case he died married. All the contingencies upon which legacies were made was on the condition that he marry and have a widow. He did not marry, and the ultimate beneficiary, who was to take after the death of the wife, contended he had the same interest in such case as he would have had had the condition been fulfilled. This contention was denied because the testator made no disposition of the property in case he did not marry. In one marital state he died testate; in another intestate. We fail to see what light this throws upon the present situation, which only calls for a decision of whether, by the presence *410 of the questioned words, the devise to appellant was destroyed by uncertainty created thereby.
From the many cases cited we fail to extract the principle that a devise certain as to person and property becomes void if some other word or phrase appears, which, without describing property or beneficiary, might cause us to conjecture as to its meaning or effect upon the rest of the will.
Appellees also contend the will is not capable of two constructions, but only one, and that construction is that the will is so uncertain it is no will at all. It would be a dangerous doctrine to hold the principal purpose or intent of a will is to be derived from terms of uncertain meaning, where a distinct intention otherwise clearly appears. It would, in effect, make the validity of a will depend upon the absence of obscure or ambiguous terms, from which guesses or conjecture may be drawn instead of ascertaining whether devises, otherwise certain, may be upheld, by either disregarding uncertain language or by finding it not inconsistent with the gift which is otherwise certain. In other words, the object of construction is to interpret and give effect to a will, if possible, unless the language is such as to imperatively require the whole will be rejected.
We find that taking the will as a whole and examining all of its parts, together with surrounding circumstances and the rules of construction applicable thereto, there can be but one construction of the will under consideration, and that is that Frederick Michael was intended to be the sole devisee in case he survived the testator, and in case he did not survive him, his descendants were to take his place as beneficiaries.
The judgment of the Appellate Court for the First District is reversed and the decree of the circuit court of Cook county is affirmed.
Judgment of Appellate Court reversed; decree of circuit courtaffirmed. *411