188 Ill. 187 | Ill. | 1900
delivered the opinion of the court:
First — As to the contention of the appellant Dehra Kerr Fisher, an infant appearing by guardian ad litem:
The power of conversion in the will in question is as follows: “And subject to the bequests jn favor of my said wife and Mrs. Belle Sawdy I direct my trustees to hold my residuary real and personal estate for my daughter Dehra Kerr Fisher Upon trust until my said daughter ghall qttain the age of twenty-one years at the discretion of my said trustees and thereafter with the consent in writing of my said daughter to demise or lease my said real estate or any part thereof for any term not exceeding twenty-one years at the best rent or rents obtainable and at the like discretion and with the like consent to convert my said residuary real and personal estate or any part or parts thereof into money and to invest the moneys to arise therefrom as my said trustees in their opinion may think most advantageous.”
It is a well recognized rule that in the construction of a will the court will look at the state of the property devised in endeavoring to ascertain, from the language used, the testator’s intention. (Kaufman v. Breckinridge, 117 Ill. 305; Ingraham v. Ingraham, 169 id. 432; Lomax v. Shinn, 162 id. 124; Greenwood v. Greemuood, 178 id. 387.) It appears that the real estate devised in trust for this appellant is unimproved and unproductive, and it might well have been the intent of the testator to give the power of sale thereof “at the discretion of my said trustees,” that the unproductive property might be converted into income producing property for the benefit of the cestui que trust. Moreover, the personal estate devised consisted of stocks and bonds, which common experience demonstrates are frequently of fluctuating and doubtful values, which fact might well be presumed to have been in the mind of the testator when he gave to his trustees the power of sale “at their discretion.” Again, it is a familiar rule of construction that in ascertaining the intention of a testator effect must be given to all the language used, if it can be done. If one construction will render a portion of the language used meaningless and another will give effect to all the words used, the latter construction must be adopted. ° To adopt the construction contended for on behalf of this appellant will render the words “at the discretion of my said trustees” meaningless and of no effect, as there would be nothing to which they would apply. If these words should be eliminated the trustees would be bound to hold both the real and personal properties, no matter to what their values might become reduced or how profitably for the cestui que trust they might dispose of all or a portion of either, until Dehra Kerr Fisher became twenty-one years of age.
That the testator intended to give to his trustees the power of sale during the minority of his daughter is further shown by the subsequent language of the will, as follows: “And thereafter with the consent in writing of my said daughter to demise or lease my said real estate or any part thereof for any term not exceeding twenty-one years at the best rent or rents obtainable and at the Mice discretion and with the Mice consent to convert my said residuary real and personal estate or any part or parts thereof into money and to invest the moneys to arise therefrom as my said trustees in their opinion may think most advantageous.” The words “like discretion” refer necessarily to the discretion reposed in the trustees before appellant should attain the age of twenty-one, because it is only in that clause that any discretion has been given. The discretion reposed in the trustees is the same at all times, but after appellant has arrived at what the testator considers years of discretion they must obtain her consent before selling, leasing or converting any of the property in which she is interested.
We think the language used in the will clearly shows an intention in the testator to vest in his trustees the power, in their discretion, to convert any or all of the residuary real and personal estate into money during the minority of this appellant, and to re-in vest the moneys derived from such sale in such manner as they may deem most advantageous for the interest of the cestui que trust, and the circuit court conimitted no error in so holding.
Second — As to the contention of the appellant Annie Kerr Fisher: '
(a) That portion of the will in controversy under which she claims to be entitled to one-third part of both the residuary real and personal estate is as follows: “And as to all the real and personal estate whatsoever and wheresoever whereof I may die possessed * * * (hereinafter called my residuary real and personal estate) I give devise and bequeath the same unto my said trustees upon trust to pay one-third part of the income arising from my residuary personal estate to my said wife for life and so long as she continues my widow And upon further trust out of ray residuary real and personal estate after deduction of one-third part or share thereof to answer the annuity given to my said wife to set apart * * * a sum of four thousand pounds and to pay the annual income arising therefrom to Mrs. Belle Sawdy.” The foregoing language gives to this appellant one-third part of the income arising from the residuary personal estate only, and not that from the real estate, and her contention that it was the intention of the testator to give her the income arising from both the real and personal property cannot be sustained on a mere suspicion or allegation, as contended, that the intention has been clouded by the language used by incompetent or designing counsel in preparing the will, notwithstanding the fact that she would have received more property if she had renounced the provisions of the will and elected to take under the statute. This fact affords no indication of the intent o„f the testator, and his manifest intention, as expressed in his last will, cannot be ignored merely because this appellant might have received more had she acted differently. The circuit court committed no error in holding that the devise to Annie Kerr Wisher must be confined to the residuary personal estate.
(&) The will in question, after providing" for the setting apart (after the deduction of appellant’s one-third) of £4000 for the benefit of Mrs. Belle Sawdy during her life or until her second marriage, continues: “I direct that the said sum [after the decease or marriage of Mrs. Sawdy] of four thousand pounds or the investment thereof shall follow the same trusts as the rest of my residuary real and personal estate.” It will be observed that the trust for the benefit of Mrs. Belle Sawdy is not carved out of the share of the “residuary personal estate” thereinbefore devised to the wife, this appellant, but out of the “residuary real and personal estate” after deduction of the one-third share set apart for the wife. The language of the will that this sum of £4000 shall, upon the happening of either of the contingencies named, “follow the same trusts as the rest of my residuary real and personal estate,” seems to us to be too plain for any serious controversy. The “rest” unmistakably means the estate remaining after the interests of this appellant and Mrs. Belle Sawdy have been set apart, and to hold that this appellant is entitled to a contingent interest in the sum of £4000 would be to increase a specific bequest to her, evidently in lieu of all other interests she might have or become entitled to in the testator’s estate, and to violate what seems to us to be the plain language of the will.
For the reasons herein stated, the judgment of the circuit court upon the rights of the several appellants here will be affirmed.
Judgment affirmed.