25 N.E.2d 819 | Ill. | 1940
Lead Opinion
Frank Keiser died testate in DuPage county in 1926. The second and third paragraphs of his last will provide: *186 "Second. After the payment of such funeral expenses and debts, I give, devise and bequeath to my wife Anna B. Keiser all of my property both real personal and mixed of what nature and kind soever and wheresoever the same shall be at the time of my death.
"Third. If at the decease of my wife, Anna B. Keiser, there should be any real estate or personal property left it is my request that it be divided between my two children, George W. Keiser and Mabel E. Keiser Jensen, to share and share alike."
At the time of his death decedent was seized of two contiguous lots in the village of Downers Grove improved with a dwelling occupied by him and his wife as a homestead. The widow died testate in 1935. By her last will the real estate mentioned was devised to Mabel E. Keiser Jensen. George W. Keiser filed a suit in the circuit court of DuPage county for partition of the premises, alleging that by his father's will the widow became seized of a life estate, and the two children with a vested remainer. A decree was entered finding the issues for the complainant and decreeing partition, from which the defendant has appealed.
Appellant contends the second paragraph of the will gave the widow an indefeasible estate in fee simple with absolute power of disposition by will or otherwise; that the third clause amounts, in law, merely to an expression of desire or hope on the part of the testator, and did not create a remainder or executory devise, and that the word "request," therein, is merely a precatory word which did not limit or curtail the fee simple estate.
The issues require a construction of the two paragraphs mentioned. The purpose of construing a will is to ascertain, and, if possible, to give effect to the intention of the testator. In interpreting a particular provision of a will the law authorizes and requires a consideration of the whole will, and the testator's intention will be arrived at from a consideration of all the language he has used, in whatever *187
part of the will the language is found. (Bender v. Bender,
The test whether words used in a devise are dispositive or merely precatory is: Does the testator mean by such words to control the disposition of the property? If so, it is his will no matter how mildly the wish is expressed; but if he simply indicates by such words what he regards as a wise disposition, leaving it to the discretion of the person taking the legal title to the property to dispose thereof, then it is not his will. (Hempstead v. Hempstead, supra.) This is in accord with the rule laid down in Page on Wills, sec. 59; 2 Story's Eq. Jur. (11th ed.) sec. 1068a; 2 Redfield on Wills, (3d ed.) p. 446.
In determining what the testator meant by the word "request," account should be taken of the relative situation of the parties, the ties of affection subsisting between them, and the motives which would naturally influence the mind of the testator, as well as the existence of a moral duty on his part toward the party who will benefit from compliance with his desires and recommendations. (Morrison v. Tyler,
Another circumstance frequently held to indicate that precatory expressions were intended to be mandatory is that the person to whom they were addressed is the spouse of the testator, to whom it is not to be expected that commands would be expressed in such forcible language as between strangers.Warner v. Bates,
According to its context and manifest use, an expression of desire or wish will often be equivalent to a positive direction, where it is the evident purpose and meaning of the testator. (Colton v. Colton, supra.) In line with this doctrine we held in Kirkpatrick v. Kirkpatrick,
Coulson v. Alpaugh,
The remaining question is whether such a gift over is valid when preceded by a devise, which, standing alone, would give the first taker an estate in fee simple. Appellant relies largely upon Sweet v. Arnold, supra. In that case, the provisions of the will in controversy were: "After the payment of my funeral expenses and just debts, all the other and residue of my estate, * * * I give and devise and bequeath to my beloved wife, Hannah J. Stewart, and if at her decease there be any unexpended remainder of my said estate," one-fourth to be at her disposal, by will or otherwise, and the other three-fourths to go to the testator's nephews and nieces or their survivors. In holding the gift over was void, the opinion says that in cases where it was held the first taker had a life estate it is to be noted the devise was coupled with an express power of sale or some other clear expression of intention that an estate in fee simple absolute should not be created. It mentions the fact that there was no express power of sale or disposition given Mrs. Stewart other than the power given her by the devise itself, and holds that the words "If at her decease there be any unexpended remainder" cannot be construed as giving her such power. The opinion concludes by holding the devise was of an indefeasible estate in fee simple with an absolute power of disposal and that, therefore, the limitation over was void either as a remainder or as an executory devise. While it is true the words quoted cannot be construed as conferring a power of sale, they are senseless and without meaning unless the testator intended the widow might, prior to her death, dispose of the property, and they imply the testator intended to give her such a power. (In re Estate of Cashman,
Professor Simes, in his work on Future Interests, volume 2, section 599, in discussing cases where the gift to the first taker is indefinite, says: "In Jackson ex-dem-Livingston v.Robbins, 16 Johns, 537 (N.Y. 1819) Chancellor Kent observes that `we may lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee.' This doctrine has been the lode star for numerous subsequent opinions, where it would be much more rational to say that effect could have been given to all the language of the instrument including the gift over by treating the indefinite gift as a life estate. There is, however, quite a tendency in more recent years to escape from the hardship of Chancellor Kent's dictum, and in Missouri and Nebraska and perhaps other jurisdictions this has been done." Krause v. Krause,
Jensen v. McMahon,
The decree finds that the property is free from incumbrance except certain unpaid general taxes and that the widow continued to reside on it until her death. The fact, found by the decree, that Mabel E. Keiser Jensen and her family lived with her mother for some years prior to her death and still reside there can have no possible bearing on the question of the testator's intention. Statements by counsel for appellant of alleged facts outside the record can, of course, receive no consideration.
We have repeatedly held that the court should, if posble, harmonize apparently inconsistent or repugnant clauses or provisions of the will so as to give effect to each in *192
accordance with the testator's general intention in the light of the circumstances surrounding its execution. (Field v.Field,
The decree of the circuit court is affirmed.
Decree affirmed.
Concurrence Opinion
I agree with the result reached in this opinion but not with the reasoning by which such result is reached.