| Ill. | Oct 24, 1898
delivered, the opinion of the court:
The true purpose to be attained by the construction of a will is to ascertain the intention of the testator. Unless some principle of public policy or unyielding legal rule intervenes, the intention of a testator is to be observed and enforced by the courts. (Phayer v. Kennedy, 169 Ill. 360" date_filed="1897-11-01" court="Ill." case_name="Phayer v. Kennedy">169 Ill. 360; Taubenhan v. Dunz, 125 id. 524; Dickison v. Dickison, 138 id. 541.) The said second clause opens with a clear and unequivocal bequest of $2700 to Elizabeth Plumber. The remainder of the clause was not, in our opinion, added to this bequest for the purpose of depriving the said Elizabeth Plumber of the benefit of the bequest, but rather for the purpose of securing to her every possible advantage therefrom. Therefore it was the testator directed that $800 of the money he had given her should be devoted to the purpose of buying a home. The direction then is, that the “balance” of the bequest to her should be'devoted to the purpose of producing an annual income for her. That it was not the intention of the testator that said “balance” of the bequest could never be availed of by her, and that she could not, in any possible event, use the same otherwise than as a principal sum to produce interest, is clearly manifested by the directions given to the trustees in whose custody said principal balance was committed, as to their duties in connection with said balance in case of her death. These directions are, that if said Elizabeth should die leaving in their hands any unused part of said balance the same should be paid to the heirs of John Gaffield.
A careful reading and consideration of the entire clause has convinced us the testator intended that Mrs. Plumber should have the full benefit of the said $2700; that he desired a designated portion of it to be expended in securing her a home; that he wanted the balance put at interest for her benefit, but did not desire to restrict her to the use of the income alone. The gift to the heirs of John Gaffield of any part of said balance of said fund which might remain unused necessarily implies the testator understood the clause permitted the use of the principal of the fund. It would follow as a further necessary implication, that any depletion of the principal sum should be for the benefit of the party to whom he had bequeathed the entire sum. The reasonable construction of the clause therefore is, that the testator intended the beneficiary, Mrs. Plumber, should be allowed to draw from the principal in case the annual income arising from the interest should prove insufficient to supply her with the reasonable comforts of life. Such was the view entertained by the trial court, and we think it the correct one.
The directions of the trial court that before the principal sum should be broken in upon, the legatee or beneficiary should make it appear to the court that such a course was justifiable and proper, also meets our approbation. Such a course will secure to Mrs. Plumber every just demand upon her part, and will protect every possible interest of the heirs of John Gaffield.
The directions of the testator that $800 of the bequest to Mrs. Plumber should be invested in a home for her cannot but be regarded as an absolute gift of the home so purchased out of the money bequeathed to her.
We are unable to see that the provisions of clause 18 of the will serve .to throw any light upon the proper construction of clause 2. The gift in the eighteenth clause is of articles of personal property and that of the second clause is of money. The use to be made of the articles of personal property was determined by the nature and character of the different articles embraced within the gift of the clause. The testator was, for that reason, content to throw no safeguard around this property. Money, however, which is the subject matter of the second clause, may be devoted to many different wants, real or imaginary; made productive of income, or wasted by extravagance, lack of forethought or judgment; and for these reasons the testator chose to direct the manner of investment and use of the money bequeathed to Mrs. Plumber.
The trustees named in the second clause declined to accept the trust, and the appellee, Mrs. Plumber, prior to the date of the filing of the bill in this case, exhibited a petition in chancery wherein she asked the appointment of other persons as trustees. The phraseology of portions of this petition, and some of the language employed by the court in the decree rendered upon it, are made the basis of a contention by the appellants that the rights and interests of the appellee, Mrs. Plumber, in the said homestead property and in the said balance of the said bequest of the said $2700, were involved in the proceeding and were adjudicated by the court adversely to the right of Mrs. Plumber, as declared by the decree brought before us by this record. This is a misapprehension. The sole purpose of the petition and of the decree entered upon it, which are interposed here as an adjudication, was to procure the appointment of trustees to execute the trust. No construction of the will was sought and no directions to the trustees asked or attempted to be given by the court. That which appears in either the petition or decree, and which is relied upon as an estoppel or adjudication, is beyond the scope and purpose of the petition and decree, and appears only by way of narration.
The decree appealed from is correct and is affirmed.
Decree affirmed.