217 Ill. 289 | Ill. | 1905
delivered the opinion of the court:
Section i of the will of Charles W. Lander, deceased, referred to in the statement preceding this opinion, is as follows:
“First—I have already transferred to my wife, Letitia Lander, by absolute deed for life, remainder to my and our daughter, Louise Lander, in fee simple—the grounds and buildings composing my livery stable property in Blooming-ton, Ill., as the full share of my said daughter Louise in my estate, and by deed of gift and transfer, bearing even date herewith. I also give, transfer and set over all of my personal property to my said wife, Letitia Lander, subject to the payment of a note of mine to my daughter, Ida Lander, for $750.00, and also subject to the payment of all debts, if any, I may now owe at this date. Now it is my will that she my said wife shall have and take her life interest in said real estate and her absolute title to said personal property as evidenced by said deeds of transfer, as and for her full share, interest and dower in my estate, and that our said daughter, Louise Lander, shall have and take her said residuary interest in said real estate as her full share in my estate.”
The contention of the appellants, Frank Lander and Ida M. Jones, is that, by section 1 of the will, the real property therein referred to was not devised at all to the'widow and daughter, but that the same was intestate property; and the only issue to be determined by this court is, whether or not the real estate in question, owned by Charles W. Lander at the tim"e of his death, is intestate property. The basis of the contention, thus made by appellants, is the recital in section 1 of the will by the testator, that he had already executed a deed, transferring the property to his wife, Letitia Lander, for life, with remainder to his daughter, Louise Lander, in fee simple; and that, inasmuch as the testator did not make any such deed as he refers to, giving a life estate to his wife and the remainder in fee simple to his daughter, Louise, this erroneous recital does not show any purpose on the part of Charles W. Lander to bequeath or devise anything by the will, and that his intention can only be ascertained by resort to the deed referred to. .'
The doctrine, thus invoked by appellants, is announced by this court in the case of Hunt v. Evans, 134 Ill. 496, in which case it appeared that Edwin Evans, the testator, made a will and recited therein that he had deeded in trust to Williams and Plumb, as trustees, certain lots in Streator, LaSalle county, with store buildings on them, for the purpose and upon the trust named in said deed, reserving to himself during his life the rents of the property, and upon his death the residue to be vested in a certain body of directors, with a view of establishing a public library for the use of the inhabitants of Streator; no deed in trust to Williams and Plumb, as trustees, conveying the property to establish a public library, was found, notwithstanding the recital in the will that such a deed had been executed, and in construing the will in that case this court said (p. 501) : “While the authorities may not be entirely harmonious, we think the decided weight of authority establishes the doctrine, that, where the recital is to the effect that the testator has devised something in another part of the will, when in fact he or she has not done so, and thus the recital turns out to be erroneous, then such recital is construed to show a purpose and intention of the testator to devise by the will, and the courts carry out such purpose and intent to devise by the will, and give such erroneous recital the effect of a devise by implication. But where the recital in the will is to the effect that the testator has, by some instrument other than the will, given to a certain person named in the recital, property, when, in truth and in fact, he has not done so, such an erroneous recital does not disclose a purpose and intent on the part of the devisor to give by the will, and, in such case, resort must be had to the other instrument, and not to the will, by persons interested. Harris v. Harris, 3 Eq. Irish Rep. 610, is a leading case on the subject. It is there said: ‘The doctrine as to the effect of erroneous recitals in wills is well established, namely, that if the erroneous recital in a testamentary instrument be of a gift contained in that instrument, the recital may operate as being in itself a devise or bequest, by implication, of that very property. But when the erroneous recital refers to an estate created by another instrument, that recital cannot operate to create an estate by implication.’ * * * Here, the recital has no reference whatever to a gift or devise created by or under the will, but it refers to a deed of trust,—an instrument in no manner connected with the will, under which the title to the property passed; and, under the rule announced, reliance cannot be placed on the erroneous recital in the will to pass the title to the property to the persons named as trustees in that recital. * * * The fact that Evans may have made a deed, in and by which he had conveyed certain property in trust, as he declared in the will he had done, was not a devise of property in trust, nor could it be held to be a declaration of trust signed by him. The clause in the will can be regarded as nothing more than a mere statement or declaration that Edwin Evans had, by a certain deed, conveyed certain property in trust. But the evidence, that a trust had been created, would be the deed itself, and not the declaration named in the will.”
Applying the views announced in Hunt v. Evans, supra, to the case at bar, appellants say that the testator in section 1 refers to a deed, which he had executed, giving a life estate to his wife and remainder in fee to his daughter, Louise; that this deed is in no manner connected with the will, and that, under the rule announced, no reliance can be placed upon this erroneous recital in the will to pass the title to the property to the appellees, Letitia and Louise Lander. In other words, it is said that, here, there is an erroneous recital, which refers to an estate created by another instrument, and that that estate cannot operate to create an estate by implication. If the first sentence of section i of the will now under consideration be considered by itself, the contention of appellants would be correct. The fact, that Charles W. Lander may have made a deed, such as he declares in his will that he did make, was not a devise of the property in question. But the will of Charles W. Lander is different from the will referred to in Hunt v. Evans, supra. It not only contains a statement that the testator had theretofore executed the deed in question, but it proceeds in the third sentence of section I to make the following statement: “Now it is my will that she, my said wife, shall have and take her life interest in said real estate, and her absolute title to said personal property as evidenced by said deeds of transfer, as and for her full share, interest and dower in my estate, and that our said daughter, Louise Lander, shall have and take her said residuary interest in said real estate as her full share in my estate.”
The third sentence of section i, as above quoted, is something more than a mere declaration, that a deed had been executed. It is a statement by the testator that it is his will, then at the time when he executed his will, that his wife should take a life estate, and his daughter a residuary estate in said property, described in section i. It is not necessary here, in order to establish a devise by the testator, to rely solely and exclusively upon the first sentence of the will, but such first sentence must be construed in connection with the third sentence, and, in our opinion, the latter, construed with the former, certainly does devise the property to the widow, and the daughter, Louise, independently of the declaration as to the deed, made in the first sentence.
Counsel for appellants say that there is an indefiniteness in the description of the property in section I. The first sentence of section i refers to the property as “the grounds and buildings composing my livery stable property in Blooming-ton, Ill.” It is conceded by the appellants that the property thus referred to is the same as the lots described in the bill by number and block., It is not necessary that an estate devised by will should be described with the accuracy necessary in the case of a deed. Stich descriptions as “all the property I possess,” or “the residue of my estate,” or, “mountain lands,” or “uplands,” have been held sufficient to pass real estate. (Page on Wills, sec. 488). In Boyd v. Strahan, 36 Ill. 355, this court, after referring to the familiar rule that, in the interpretation of wills, the intention of the testator must govern, and is to be gathered from the entire will, said (p. 359): “There is no other class of written instruments known to the law, in which so little importance is to be attached to the technical sense of language in comparison with that sense, in which the apparent object of the writer indicates his words to have been used.” The description of the property, in the will in the case at bar, as the “grounds and buildings composing my livery stable property in Bloomington, Ill.,” is sufficient to lead to a definite ascertainment of the particular property, which the testator had in his mind; and, although the first sentence of the will does not disclose any purpose on the part of the testator to make a devise, yet it is a declaration that he had conveyed the property by a deed, and the property therein mentioned is referred to in the third sentence as “said real estate.” In other words, the first sentence of section 1, though not a devise, but only a mere declaration, is yet properly referred to in the third sentence of section 1 as containing a description of the property, which is devised by the third sentence of said section.
If section x, when all its parts are construed together, had amounted to nothing more than a declaration that the testator had previously made a deed, then, under the principle announced in Hunt v. Evans, supra, it would be true that the testator had died intestate as to the property in question, and a bill for partition, as filed by the appellants, would properly lie. But, in the view we take of the will, that the third sentence of it does amount to a devise of a life estate to the widow, and of a remainder to the daughter, Louise, the deceased did not die intestate as to this property. It passed by his will to his widow, and his daughter, Louise. Accordingly, the court below decided correctly in holding that the property was testate property, and in dismissing the bill and overruling the demurrer to the cross-bill.
For the reasons above stated, the decree of the circuit court of McLean county is affirmed.
Decree affirmed.
