| Ill. | Nov 8, 1897
delivered the opinion of the court:
Whether the 14-¡- acres of land in controversy are to be regarded as intestate property belonging to the heirs of Charles S. Young, deceased, and as such subject to partition, or whether they passed to the defendant Noah Young, depends upon the construction to be placed upon the will of Charles S. Young. The will was made an exhibit to the answer of Noah Young, and among other provisions it contains the following:
“Item S.—I give and devise to my son, Noah Young, the north-west quarter of section twenty-one (21), township twenty-one (21), north, range'number eleven (11), west of the second principal meridian; also 62-J- acres off of the east side of the north-east quarter of section number twenty (20), township and range aforesaid.”
There is no question or doubt in regard to the first tract of land named in the above bequest, but as to the other tract, it was not owned by the testator at the time of making the will or at his death. The following plat shows the land in dispute, and also the land held by other parties embraced in the description named in the will:
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From the plat and the other evidence introduced on the hearing, it appears that the Chicago and Eastern Illinois Railroad Company owned a right of way consisting of over six acres which would fall within the description given in the will, and a part of the south end of the tract named in the will constituted a part of the village of Bismarck. The evidence showed that the testator did own 62$ acres in the 80-acre tract, but not 62$ acres off the east side. It is manifest the testator never intended to devise land that he did not own, but bis intention doubtless was to devise that 62$ acres of land that he did own in the north-east quarter of section 20. In the construction of wills, as has often been declared by this and other courts, the great and important question is to arrive at the intent of the testator, and when the intent can be ascertained, and it is not contrary to some positive rule of law, it must prevail, although in giving effect to it some words may be rejected or so restricted in their application as materially to change the literal meaning of the particular sentence.
In Decker v. Decker, 121 Ill. 341" date_filed="1887-06-20" court="Ill." case_name="Decker v. Decker">121 Ill. 341, where by the’ literal reading of the language of the will the testator had conveyed land which he never owned, words were rejected to carry out the intent of the testator. It is there, among other things, said (p. 352): “Tested by these principles, it is very clear that in the devise under consideration there is a latent ambiguity. On the face of the will the subject matter of the devise is clear, but on inquiry it is found that the descriptive words of the devise are, in part, false. The parcel of land appearing to be devised did not belong to the testator. If, then, we may strike out of the description of the premises appearing to be devised so much as is false, and enough remain in the will, interpreted in the light of surrounding circumstances at the time the will was made, to identify the premises devised, this case will fall within the class of cases of which Patch v. White, supra, (and many other cases named,) are examples as to the object of devise.”
The defendant Young in this case does not seek to inject into or add to the will any words which may explain the real intent of the testator to devise him the land. He does not desire to add a word or sentence to the will. He only asks that the false words found in the description of the premises devised may be stricken out,—words that place the testator in the false attitude of devising lands he never claimed or owned.
What was said in Whitcomb v. Rodman, 156 Ill. 116" date_filed="1895-04-02" court="Ill." case_name="Whitcomb v. Rodman">156 Ill. 116, applies with much force here. It is there said (p. 125): “While words cannot be added to a will, yet in arriving at the intention of the testator, as has been shown by the authorities, so much as is false in the description of the premises devised may be stricken out, and, after striking out the false description, if enough remains to identify the premises intended to be devised, the will may be read and construed with the false words eliminated therefrom.”
Adopting the rule established in the cases cited, and striking out the words “off of the east side,” the third item of the will will read: “I give and devise to my son, Noah Young, the north-west quarter of section twenty-one (21), township twenty-one (21), north, range eleven (11), west of second principal meridian; also 62j- acres of the north-east quarter of section number twenty (20), township and range aforesaid.” This description is sufficiently definite to include the land in dispute.
Reliance, however, is placed upon Bingel v. Volz, 142 Ill. 214" date_filed="1892-03-28" court="Ill." case_name="Bingel v. Volz">142 Ill. 214. Upon an examination of that case it will be found that there is no inconsistency between it and the Decker case and the case of Whitcomb v. Rodman. In the Bingel case an attempt was made to reform a will by striking out certain words and inserting others, which it was held could not be done. No effort is made here to strike out words and insert others in their place, but all that is asked here is, that certain false words in the description of the premises may be stricken out, which the Bingel case holds may be done, as is apparent from what is there said, as follows (p. 225): “Doubtless, if there were repugnant elements in the description employed in the devise in question, and if ■the description, after rejecting a repugnant element, were complete in itself, so as to accurately and sufficiently describe the land intended to be described, that rule of construction might be adopted. * * * The difficulty of the description as it appears in the devise is, that it substitutes ‘north-west’ for ‘south-west,’ and the correction of the description so as to make it apply to the right tract requires not only that one of these words should be stricken out but that the other should be inserted. It involves more than construction—it requires reformation; and in this State, at least, courts of equity have persistently refused to entertain bills to reform wills.” Nothing of the character mentioned in the case cited is claimed here.
We think the decree of the circuit court dismissing' the bill was correct, and it will be affirmed.
Decree affirmed.