| Ill. | Apr 23, 1908
delivered the opinion of the court:
The writ of error raises the question as to the correctness of the judgment of the Appellate Court reversing that part of the decree of the circuit court abating the annuities of Joseph Denny and Phoebe K. Hitt one-half. The widow of the testator having filed her renunciation of the will and elected to take under the statute, her estate of homestead and one-half of the real and personal estate remaining after the debts were paid necessarily reduced the amount of property available for the payment of legacies.
Section 79 of chapter 3, Hurd’s Statutes of 1905, is as follows: “In all cases where a widow or surviving husband shall renounce all benefit under the will, and the legacies and bequests therein contained, to other persons, shall, in consequence thereof, become diminished or increased in amount, quantity or value, it shall be the duty of the court, upon settlement of such estate, to abate from or add to such legacies and bequests in such manner as to equalize the loss sustained or advantage derived thereby, in a corresponding ratio to the several amounts of such legacies and bequests, according to the amount or intrinsic value of each.”
Plaintiffs in error, who are the residuary legatees, contend that this statute required the abatement of all legacies provided by the will one-half, and that the Appellate Court erred in reversing the decree of the circuit court abating the annuities given by the will to Joseph Denny and Phcebe Hitt.
If no aid could be found in the will for the solution of this question we would be disposed to agree with the Appellate Court, as the decision of that court is sustained by the decision of this court in Lewis v. Sedgwick, 223 Ill. 213" date_filed="1906-10-23" court="Ill." case_name="Lewis v. Sedgwick">223 Ill. 213. But we are aided in the determination of this question by the provisions of the will, which we think clearly evince the intention of the testator that the legacies specifically bequeathed to particular persons named in the will should be paid before any distribution of the testator’s estate should be made among the residuary legatees. The twenty-second paragraph of the will directs that the executor first pay out of the rents and profits of the lands in McLean county, the taxes, insurance, necessary repairs and expenses of the trust; that he next pay the annuity to the testator’s wife, (which by renunciation of the will she declined to accept;) that he next pay the annuity of $1000 to Phoebe K. Hitt, then the annuity of $1000 to Martha A. Booth, and next the annuity of $500 to Joseph Denny. Said clause of the will further reads: “After these payments are made, annually, the residue of the net income shall be applied to the payment of my debts as rapidly as the same can be paid from year to year until my entire indebtedness is fully paid. The sum remaining after the debts are paid is provided in another 'clause of this will.” The other clause referred to is the twenty-third, which provides that after the payment of the debts, funeral expenses, costs of administration and other necessary expenses, the net proceeds of the income of the lands in McLean county, “after paying the annuities hereinbefore enumerated in the preceding clause of this will, be paid * * * until the sale of said lands,” one-fourth to George H. Moore, one-fourth to Albert H. Moore, (brothers of the testator,) one-fourth to Phoebe K. Hitt, (a sister,) and one-fourth to the children of Dannie A. Russell, a deceased sister of the testator. The intention of the testator is also indicated by the twenty-first paragraph of the will. We are of opinion. the judgment of the Appellate Court upon this branch of the case is supported by the law and is • in accordance with the intention of the testator as evidenced by his will.
Upon the other branch of the case the circuit court decreed that the debts of the testator remaining after the application of the proceeds of the sale of one hundred and twenty-seven acres of land upon a mortgage for $20,000 upon five hundred acres of the McLean county land were by the will made a charge upon the rents and income from the DeWitt county lands; also that the specific money legacies, (but not the annuities,) and the expenses of a monument costing not to. exceed $3000, and the costs and expenses of administration, were charged against the rents and income from said DeWitt county lands, and that the annuities mentioned in the will were required to be paid from the rents and income from the McLean county lands.
The testator, at the time of his death, owned about sixteen hundred acres of land in McLean county and about four hundred acres in DeWitt cbunty. He resided on the lands in DeWitt county. By the sixth clause of his will he devised to George M. Kincaid, whom he appointed executor and trustee, the lands in DeWitt county, and authorized and directed said executor and trustee to rent said lands and collect the rents arising therefrom, and “apply the same towards the discharge of my indebtedness and the payment of the specific legacies in this will mentioned, (not, however, meaning hereby the legacies or annuities to be paid annually,) the erection of the monument hereinafter mentioned, and the costs and expenses of the administration of my estate.” After the payment of the debts, funeral expenses, specific legacies and the expenses of the monument, the executor and trustee was directed, within a reasonable time, to sell the DeWitt county lands and out of the proceeds to pay to the library association of Farmer City $2000 and the residue to the building and furnishing of a township high school at Farmer City. If there were no other provision of the will showing an intention that the income from any other land owned by the testator should be charged with the payment of any of his indebtedness remaining after the sale of the one hundred and twenty-seven acres of land referred to, the decree of the circuit court would be clearly right. In said sixth clause of the will the testator described the DeWitt county lands and,made no reference to other lands owned by him. By the fourth clause of the will the testator devised to George M. Kincaid, in trust, the McLean county lands, “upon the trusts hereinafter provided and created.” There are two clauses in the will numbered 21. For convenience we will distinguish them as “210” and “21 b.” Clause 21a authorizes the trustee to renew or execute new mortgages on the McLean county land for the purpose of raising such amount of moneyas may be necessary to pay the testator’s debts, or any part thereof, that his personal estate should be insufficient to pay, and it was made the trustee’s duty to use the annual income “from my said lands, except said homestead lands, for the purpose of paying all deficiency on my said mortgage and other indebtedness that remains after the application of my personal estate and the proceeds of the lands directed herein to be sold for that purpose.” To further make clear the meaning of the testator, said clause states his intention to be “that all deficiency in the payment of my debts and specific legacies after the application of my property, as hereinbefore directed, shall be finally paid from the income derived from said lands, excepting said homestead lands and the land directed to be sold for the purpose of paying the mortgage indebtedness.” Up to this point the DeWitt county lands had not been referred to in this clause of thé will, so that by any reasonable construction the lands referred to by the testator were the McLean county lands. Clause 21 b makes it the duty of the trustee to rent the McLean county lands, and out of the net proceeds of the rents “pay, from time to time, all my just debts and the legacies which my personal estate is insufficient to pay and the annuities herein created, it being my true intent and meaning that legacies and annuities herein provided for shall be paid out of the income of my said estateand the power to borrow money conferred upon the trustee was “for the purpose of paying my indebtedness, and such mortgages or debts so created by my said executor or trustee are to be discharged out of the rents and profits of said lands in the county of McLean.” Clause 22 provides that after the trustee had paid out of ‘the rents and profits of the McLean county land the taxes,insurance, necessary repairs and the expenses of the trust, he should next pay the testator’s wife, $2000 annually as long as she lived, $1000 annually to Phoebe K. Hitt, $10.00 annually to Martha A. Booth and $500 annually to Joseph Denny. “After -these payments are made, annually, the residue of the net income shall be applied to the payment of my debts as rapidly as the same can be paid from year to year until my entire indebtedness is fully paid.” The twenty-third clause provided that after the payment of the testator’s debts, funeral expenses, costs and expenses of administration, and other necessary expenses, and the annuities therein above enumerated, the remaining income from the McLean county lands should be paid to the residuary legatees in the proportions mentioned.
It seems clear to us that clauses 21 a, 21 b, 22 and 23 can be given no other meaning than that the testator intended his indebtedness should be as much a charge against the income from the McLean county lands mentioned in those clauses as it was that it should be a charge against the income from the DeWitt county lands mentioned in the sixth clause. Nowhere else in the will is any language to be found indicating an intention on the part of the testator to make his indebtedness a charge only upon the income from the DeWitt county lands. The language used in the sixth clause of the will is, that the executor and trustee should collect the rents from the DeWitt county lands “and apply the same toward the discharge of my indebtedness” and the payment of specific legacies, not including annuities; and after the debts and annuities were paid, and also the expenses of the monument, the trustee was authorized to sell the DeWitt county lands and distribute the proceeds as we have above mentioned. When that clause is read in connection with the other clauses of the will, they seem to show clearly that the rents from all the lands the testator owned, both in DeWitt and McLean counties, should be appropriated to the payment of debts until the indebtedness was finally paid. The annuities were made a charge against the income from the McLean county lands and the monument against the income from the DeWitt county lands. Aside from the bequests to the library association and township high school, the specific legacies or money bequests, costs of administration and the remainder of the indebtedness of the testator after applying the proceeds of the sale of the one hundred and twenty-seven acres of land upon the $20,000 mortgage, were made a charge upon the rents and income from the land in both counties. In our opinion any other construction would be contrary to the expressed intention of the testator as evidenced by the plain and unambiguous language of the will.
We do not question the rule that where the controversy is between the heir of the testator who is a beneficiary under the will and another beneficiary who has no claims upon the bounty of the testator, and two equally proper interpretations of the will can be adopted, that one will be adopted which prefers the kin of the testator to strangers. But that rule can have no application where only one proper construction can be given to the will, as we hold to be true in this case.
In our opinion the Appellate Court erred in affirming that portion of the decree making the income from the DeWitt county lands alone liable.for the testator’s indebtedness, money legacies and costs and expenses of administration. In so far as the judgment of the Appellate Court reverses the decree of the circuit court abating legacies it .is affirmed, but in so far as it affirms that part of the decree of the circuit court making the indebtedness of the testator, the money legacies and costs of administration a charge against the DeWitt county lands alone it is reversed, and that part of the decree of the circuit court is reversed and the cause remanded to the circuit court, with directions to enter a decree in accordance with the views herein expressed.
Reversed and remanded, with directions.