151 N.E. 577 | Ill. | 1926
Defendants in error filed a bill for partition in the circuit court of Pike county seeking partition of certain tracts of land therein described. The bill alleges that William T. Hawkins died May 9, 1913, leaving a widow, Betty Hawkins, and two children, Fanny and Elisha Hawkins, minors, defendants in error herein, as his only heirs-at-law; that at the time of his decease he owned the tracts of land in question, and that during his lifetime he executed a will, by which he purported to devise all of his property, real and personal, to his wife; that after the death of Hawkins his widow married Ed. Ringhausen, and, claiming to be the owner of the fee in said tracts of land, she made deeds purporting to convey the different tracts to the various plaintiffs in error, some of whom deeded to other plaintiffs in error. It is unnecessary to follow the transfers of these lands, as there is no question concerning the regularity *200 of the conveyances if Betty Hawkins Ringhausen had the fee simple title to said lands. The bill, however, alleges that the will of Hawkins, by which his widow (later Betty Ringhausen) claimed the right to make deeds to said tracts of land, was executed on January 9, 1908, before the birth of either of defendants in error, complainants, who are the only children of Hawkins and his wife; that Fanny Hawkins was born on November 27, 1908, and Elisha Hawkins was born on September 9, 1910; that it does not appear from the will of Hawkins that he intended to disinherit his two after-born children, and that by force of the statute in such case made and provided, the bequest and devise made to Betty Hawkins, as the widow of the testator, abated, and defendants in error became the owners in fee of the real estate as though Hawkins had died intestate, subject only to the dower and homestead in their mother. The bill alleges that Betty Hawkins (later Betty Ringhausen) is now deceased, and that therefore defendants in error are the owners in fee simple of all the real estate, free from homestead and dower; that plaintiffs in error took from Betty Hawkins her dower and homestead interest, only, and that such interest on her death became extinguished and plaintiffs in error therefore hold nothing by their deeds.
Plaintiffs in error by their answer deny that it did not appear by the will of Hawkins that it was his intention to disinherit his after-born children, but aver that, on the contrary, it did so appear, and that therefore the statute referred to in the bill did not apply. The answers of the various plaintiffs in error also alleged that each, as purchaser, entered into the respective tracts purchased by them, paid the full consideration therefor and all taxes thereon, and in some instances made improvements.
The circuit court found that defendants in error are owners in fee of the property and decreed partition in accordance with the prayer of the bill. The decree also found that *201 plaintiff in error Charles McKee had made improvements on tract No. 2 purchased by him, amounting to $400; that plaintiff in error Rose Utterbach, together with those from whom she had purchased tract No. 5, had placed improvements on the tract to the amount of $100; and that plaintiff in error Henry Ogle had placed improvements on tract No. 6, purchased by him, amounting to $40. The decree directed that commissioners be appointed to appraise the lands and improvements separately, and that such plaintiffs in error have their respective liens for such proportion of the total value of the premises as the value of the improvements bore to the value of the land separate from the improvements, and in the decree approving the report of the commissioners the court found that McKee, Utterbach and Ogle were entitled to liens on the tracts held by them for such improvements.
The principal question involved in this case concerns the application of section 10 of chapter 39 of our statutes, relating to descent. This section, so far as material here, is as follows: "If, after making a last will and testament, a child shall be born to any testator, and no provision be made in such will for such child, the will shall not on that account be revoked; but unless it shall appear by such will that it was the intention of the testator to disinherit such child, the devises and legacies by such will granted and given, shall be abated in equal proportions to raise a portion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died intestate," etc.
This statute has been before this court in seven different cases, hereinafter referred to. The rule laid down in those cases is, that while statements of the testator made before or after a will is executed cannot be received to prove what was intended by the words of the will, still, under the section of the statute referred to, it is not essential that the testator's intention to disinherit after-born children shall be *202 declared in express terms, but the same may appear from a consideration of proven facts and circumstances surrounding the testator when the will was made, not for the purpose of changing the language of the will but to explain its meaning.
The language of the will in this case is: "I give and devise all of my real estate of every kind and nature whatsoever to my wife Betty Hawkins, and lastly, I give and bequeath all the rest and remainder of my personal estate, money, goods and chattels of whatever nature or kind so-ever to my wife Betty Hawkins whom I hereby appoint sole executrix of this my last will and testament hereby revoking all former wills by me made." The question is whether the testator intended to disinherit after-born children. Such intention must be drawn from the will itself. While evidence of circumstances surrounding the testator may be received, such evidence is competent only for the purpose of showing the intention of the testator, where there is an ambiguity in the will, with reference to disinheriting after-born children. That question was before this court for the first time in Osborn v. JeffersonNat. Bank,
The construction of section 10 of the Descent act again came before this court in Ward v. Ward,
In Salem Nat. Bank v. White,
In Hawhe v. Chicago and Western Indiana Railroad Co.
165 Ill. 561 , the testator devised all of his property to his *204 wife. At the time of his death his family consisted of his wife, a daughter aged four and a son aged two. The appellant, another son, was born about two months after the testator's death. The will was made subsequent to the birth of the other two. The after-born son later brought suit against the widow's grantee of certain real estate owned by the testator in his lifetime, on the ground that, being a posthumous child and the will disclosing no intention on the part of the testator to disinherit him, he was entitled to a child's share in the land. The rule is there announced that extrinsic evidence may not be resorted to to show the intention of the testator where there is no latent ambiguity in the will but may be received to explain the testator's intention where latent ambiguity does exist. It was there held that the evidence concerning the circumstances surrounding the testator at the time of the making of the will did not tend to vary or change the intent of the testator but to aid in disclosing such intention as evidenced by the language, and that such evidence was competent for that purpose. It was decided in that case, in construing the will, that the fact that the testator made no allusion in his will to any of his children, either those born or to be born, but devised the property to his wife, using language of particular significance, when considered with the fact that he had two children at the time of the making of the will whom he excluded, was sufficient to show an intention on his part to disinherit not only his children living, but likewise after-born children.
In Lurie v. Radnitzer,
In Peet v. Peet,
In Froehlich v. Minwegen,
It will be seen that the case at bar differs from the cases just considered in that in the present case the testator had no children at the time of the execution of the will. His first child was born nearly a year after the making of the will. In no case in this State has a will been construed as showing an intention to disinherit after-born children where the testator had no children at the time of the making of the will and after-born children were not referred to in *206 the will. These distinguishing facts are of such importance in considering the application of section 10 of the Descent act that the cases previously considered by this court can not be held to be controlling.
All devises simpliciter are by their terms to the exclusion of anyone other than the devisee, and if all such devises are to be held to be evidence of an intention on the part of the testator to disinherit after-born children, the provisions of section 10 securing a child's share to after-born children could never have application where a devise simpliciter appears in the will. In the instant case there is nothing in the will to indicate an intention to disinherit after-born children, and since the testator had no children and no reason to know that he would have, there is nothing to indicate that he had any intention whatever respecting after-born children. It seems clear, therefore, that it can not be said to appear from the will in this case that the testator intended to disinherit his after-born children. There are no circumstances tending even in a remote degree to establish such an intention or any intention concerning after-born children. It cannot, therefore, be said, as the statute requires, that it appears from the will that the testator intended to disinherit defendants in error, and the provisions of that section directing that the devises and legacies abate must be held to apply.
It is urged that to so hold amounts, in effect, to a revocation of the will, which section 10 specifically says shall not take place. The fact that the shares of defendants in error given them by this statute consume the entire estate, subject to the widow's dower and homestead, does not, of itself, revoke the will. The will still stands to be probated, and other provisions of it, if there be such, are to be carried out. A revocation is a destruction of the will. The abatement of all devises and legacies does not amount to a destruction of the will. It is to be probated and the estate administered by an executor chosen by the testator, whereas *207 an intestate estate is to be administered by an administrator to be chosen by the court.
It is also urged that defendants in error received the benefit of the purchase price of this property paid to their mother and that they are estopped to assert ownership in the lands. The evidence in this case does not show that defendants in error received the money paid to their mother for the property. It appears that she used the money to purchase some property in her own name, which was later sold to pay her debts. Under section 10 of the Descent act defendants in error were entitled to the real estate, subject to the dower and homestead rights of their mother. When plaintiffs in error purchased these lands from the mother they must be held to be chargeable with notice of the rights of defendants in error therein. Nor does the fact that some of the proceeds of the sale of this property may have been used by the mother to pay debts of the testator have the effect of making valid the void deeds of the mother by which she sought to transfer the fee to this property. (Manternach v. Studt,
We are of the opinion that the will in this case did not disinherit defendants in error and that the chancellor did not err in decreeing partition. The decree will therefore be affirmed.
Decree affirmed. *208