55 Ill. 514 | Ill. | 1870
delivered the opinion of the Court:
John Hibner and others, children and. heirs at law of John Hibner, deceased, filed their bill for partition, in the circuit court of Will county, against appellants, Charles, Elizabeth, and James Kurtz.
The bill alleges, that by the death of the deceased,.complainants and defendants, except James, became seized in fee, as tenants in common, of the west half of the south-west quarter of section 33, town 35, range 10 east, eighty acres, and the south half of the east half of the south-east quarter of section 32, town 35, range 10 east, forty acres; that Elizabeth^ was entitled to the undivided one-sixth part of the lands; that James claimed title to the forty acre tract; and that Elizabeth is a daughter of the deceased, and the wife of Charles. The bill is in the usual form.
Appellants answered, admitting the allegations of the bill, except as to the intestacy of Hibner, and averred that he devised the eighty acre tract to Elizabeth, and the forty acres to James; that there was a mis-description of the lands in the will, and that Charles and Elizabeth had been in possession of, and made valuable improvements upon, the eighty aero irucj, upon the promise of the deceased, that he would give the same to Elizabeth.
The usual replication was filed, cause heard, and decree rendered for partition. To reverse this decree appellants have brought, the case to this court.
The circuit court refused to hear parol evidence, to explain the language of the will. The only provisions of the will to be considered are the following:
“ Third. I give and bequeath to my daughter, Elizabeth Kurtz, all that tract or parcel of land situate in the town of Joliet, Will county, Illinois, and described as follows: the west half of the south-west quarter of section 32, township 35, range 10, containing eighty acres, more or less, together with all the appurtenances thereunto belonging, or in anywise appertaining.
“Seventh. I give and bequeath to my grand-son, James Kurtz, all that part or parcel of land described as the south half of the east half of the south .quarter section 31, in township 35, range 10, containing forty acres, more or less.”
Appellants offered to prove that the testator, at the time of his death, owned only one eighty acre tract, in township thirty-five, which was the one described in the bill; that a mistake was made in drafting the will, by the insertion of the words “section thirty-two,” instead of “section thirty-three”; that Charles and Elizabeth Kurtz had been in the actual possession of the tract for a number of years, and upon the repeated promise of the testator in his life time, that he would give the same to Elizabeth, had made lasting and valuable improvements, at their own expense, on the land,—had fenced it, and erected thereon a dwelling house, barn and corn cribs, dug wells and set out fruit trees.
Appellants also offered to prove that James Kurtz, at the time of the death of the testator, was in the actual possession of the forty acre tract, as the tenant of the deceased, and that the draughtsman of the will, by mistake, inserted the word “one,” after the words “section thirty,” instead of “two,” so as to bequeath to James land in section thirty-one instead of section thirty-two. This evidence was rejected by the court, on the hearing.
It has been strongly urged by counsel for appellants, that this evidence should have been received, for the purpose of ascertaining the intention of the testator. The will devises land to Elizabeth in section thirty-two; the parol evidence offered was for the purpose of locating the land in section thirty-three. The will devised to James “the south half of the east half of the south quarter of section thirty-one.” It was proposed to show, by parol evidence, that the testator intended to devise to James “the south half of the east half of the southeast quarter of section thirty-two.”
The law requires that all wills of lands shall be in writing, and extrinsic evidence is never admissible, to alter, detract from, or add to, the terms of a will. To permit evidence, the effect of which would be to take from a will plain and unambiguous language, and insert other language in lieu thereof, would violate the foregoing well established rule. For the purpose of determining the object of a testator’s bounty, or two subject of disposition, parol evidence may be received, to engine the court to identify the person or thing intended. In this regard, the evidence offered afforded no aid to the court. The devise is certain both as to the object and subject. There are no two objects,—no two subjects.
The' intention of the testator must prevail. How shall this be ascertained? In the case of Smith v. Bell, 6 Peters, 74, Chief Justice Marshall says: “The first and great rule in the exposition of wills, to which all rules must bend, is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law. This principle is asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be ‘the legal declaration of a man’s intentions, which he wills to be performed after his death.’ These intentions are to be collected from his words, and ought to be carried into effect, if they be consistent with law.”
The thing devised is certain and specific. Section, township and range are given. The evidence offered, as to the mistake in the section, would have made a new and different will. The testator devises lands in certain sections. The description is full, certain and explicit. No doubt arises upon the reading of the will. Every mind is forced to the same conclusion, that the land devised, the subject of disposition, is clearly, and without the slightest ambiguity, described. The language is, not applicable to any other land. No extrinsic evidence, then, is needed, to identify the thing intended. The intention is manifest from the words of the will.
The case of Tucker et al. v. Seamen’s Aid Society, 7 Metc. 188, is cited by appellants’ counsel. It appeared, in that case, that in consequence of incorrect information, the legatee was not, probably, the object of the testator’s bounty. Other societies claimed the legacy. The court, however, decided that the legacy should be paid to the “ society ” designated in the will, not upon extrinsic proof, but upon the words of the will.
The case of Riggs v. Myers, 20 Mo. 239, is also cited by counsel for appellants. That case is very different from the one under consideration. The testator, in that case, made a full disposition of all his estate, and then described certain lands, locating them in a township in which he owned no lands. The land intended to be devised, was, however, identified, by reference to “ the big spring” upon it. In the case before the court there is no disposition, either specifically or generally, of the lands in the bill mentioned.
We think, therefore, there was no error in refusing the admission of extrinsic evidence, to detract from, or add to, the terms of the will. The law requires a will to be in writing; to be executed in the presence of two witnesses, and with certain solemnities, to insure its correctness, and protect the testator from mistake and imposition.
There is no ambiguity in this case, as is urged. When we look at the will it is all plain and clear. It is only the proof, aliunde, which creates any doubt, and such proof we hold to be inadmissible. Doe v. Hiscocks, 5 Mees. & Welsb. 363; Miller v. Travers, 8 Bing. 244; Jackson v. Sill, 11 Johns. 212; Jackson v. Wilkinson, 17 ib. 146; Mann v. Mann, 1 Johns. Ch. 231.
The decree, in this case, must, however, be reversed, for the refusal of the court to admit the evidence offered, as affecting the rights and interests of the parties, in making the partition. By the decree, the court found that Elizabeth Kurtz was entitled to the undivided one-sixth part of the lands, without any directions to the commissioners to assign to her the portion improved, and in case partition could not be made, to allow her a reasonable remuneration, from her co-tenants, who received the benefit of the improvements. This was error. Louvalle et al. v. Menard et al. 1 Gilm. 39; Dean et al. v. OMeara et al. 47 Ill. 121; Borah v. Archer, 7 Dana, 176.
It would be inequitable to permit the complainants to share in the benefits of the improvements, without making some compensation to the defendants for the necessary increased value to the land, occasioned by the improvements.
As to the eighty acre tract, we think from the evidence offered, that Elizabeth Kurtz is entitled to specific performance of the parol promise, repeatedly made, by her father. Appellants offered to prove such parol promise, by the-testator, in his life time, to Elizabeth, and that in consequence of such promise, possession was taken, and extensive and valuable improvements made by them. A court of equity will always enforce a promise, upon which reliance is placed, and which induces the expenditure of labor and money in the improvement of land. Such a promise rests upon a valuable consideration. The promisee acts upon the faith of the promise. We can perceive no important distinction between such a promise and a sale. Courts would sanction wrong and fraud not to sustain such a promise. If the proof offered can be made, then Elizabeth is entitled to specific performance, and a decree for the conveyance of the eighty acres to her, upon the filing of the proper bill. Bright et al. v. Bright, 41 Ill. 97; Shepherd v. Bevin, 9 Gill, 32; King’s Heirs v. Thompson, 9 Peters, 204.
We do not think that James Kurtz has any title to the forty acres, by virtue of the will, or otherwise, and partition should be made of it.
The decree of the circuit court is reversed, and the cause remanded, with instructions to that court to proceed in accordance with this opinion, and with leave to Elizabeth to file her cross bill.
Decree reversed.
