| Ill. | Oct 23, 1906
delivered-the opinion of the court:
When a person dies testate it will be presumed that he intended to dispose by his will of all his property and leave no part of it as an intestate estate. (Boehm v. Baldwin, 221 Ill. 59" date_filed="1906-04-17" court="Ill." case_name="Boehm v. Baldwin">221 Ill. 59; Hawkins v. Bohling, 168 id. 214; Hayward v. Loper, 147 id. 41.) This will on its face disposed of all testator’s property. The residuary clause was amply sufficient for this purpose. (Hale v. Hale, 125 Ill. 399" date_filed="1888-06-16" court="Ill." case_name="Hale v. Hale">125 Ill. 399; Richards v. Miller, 62 id. 417; Dickison v. Dickison, 138 id. 541.) This court has more than once decided that the renunciation of a will by a widow does not make the remaining property left by the testator an intestate estate,—it is still testate property. It would lessen the quantity of the balance of the estate to the extent of the estate which the law gives the widow, but otherwise the property will pass by will. (Laurence v. Balch, 195 Ill. 626" date_filed="1902-04-16" court="Ill." case_name="Laurence v. Balch">195 Ill. 626; Marvin v. Ledwith, 111 id. 144; McMurphy v. Boyles, 49 id. 110; Logan v. Logan, 11 Col. 44.) A provision in the will in favor of the widow is in legal effect an offer by the testator Jo purchase her statutory interests for the benefit of his estate. (Blatchford v. Newberry, 99 Ill. 11" date_filed="1880-02-02" court="Ill." case_name="Blatchford v. Newberry">99 Ill. 11; Carper v. Crowl, 149 id. 465; ReQua v. Graham, 187 id. 67.) If she refuses to accept the offer in the will she acquires her interests under the statute the samé as if there was no will, but her renunciation does not make any of the estate outside of her interests intestate.
Under the holdings of this court we do not regard the allowance of solicitor’s fees for plaintiff in error as erroneous. The amount allowed in such cases is generally a matter of discretion with the trial court, and will not be reviewed unless there has been plainly an abuse of such discretion. (Woman's Union Missionary Society v. Mead, 131 Ill. 338" date_filed="1890-01-18" court="Ill." case_name="Woman's Union Missionary Society of America v. Mead">131 Ill. 338; Ingraham v. Ingraham, 169 id. 432.) We do not feel that there has been any showing on this hearing that would justify this court’s interference in this regard.
Some of the questions raised by cross-errors, as shown in the statement of facts, have never been passed upon by this court, and we do not find that the precise questions at issue have been decided in other jurisdictions. Clearly, under the Statute of Descent, if the widow renounces she is “entitled to one-third of the personal estate after the payment of all debts,” including in this case, in the personal estate, the stock of the Sandwich Manufacturing Company. Her title undoubtedly relates back to the date of the death of the testator. Even if the rule obtains that specific legacies must be paid in full if the general legacies or residuary fund be large enough to permit, yet without question the specific legatees, under our statute, fake subject to the widow’s rights, and specific legacies would be compelled to abate to pay the widow’s share if the estate was not sufficient for that purpose without such abatement. Section 79 of chapter 3, on administration of estates, (Hurd’s Stat. 1905, p. 118,) provides, in substance, that where a widow or surviving husband renounces and the legacies and bequests to other persons become diminished or increased, the court, on the settlement of the estate, shall abate or add to such legacies and bequests so as to equalize the loss or advantage. Does that section apply in this case ?
The general rule has always been that a specific legacy is a gift of a specific part of testator’s estate, identified and distinguished from all things of the same kind, and can only be satisfied by the delivery of the particular thing,, and that if the estate for any reason should turn out to be less than the testator anticipated, or if for any reason there is required an abatement as to any of the legacies, general legacies or residuary funds must first be abated before any-abatement of the specific legacies could be required. We are of the opinion that the shares of the Sandwich Manufacturing Company stock disposed of under clauses 3, 4, 5, 6 and 7 are specific legacies. (Page on Wills, sec. 769; 2 Redfield on Wills, pp. 142, 143; 2 Woerner’s Am. Law of Administration, p. 1006; 18 Am. & Eng. Ency. of Law,—2d ed.— p.714; Dauel v. Arnold, 201 Ill. 570" date_filed="1903-02-18" court="Ill." case_name="Dauel v. Arnold">201 Ill. 570.) The residuary fund under this will may be classed as a general legacy. Section 79 for the equalizing of legacies was passed in substantially the same form as at present in 1845. It is to be presumed that the legislature had in mind the law requiring general legacies first to be abated before trenching on the funds of the specific legatees. We do not believe it was their intention to make a different rule in the case of renunciation affecting legacies than in other cases where legacies were diminished or increased, but rather to apply the same rule. Such is the construction we give to this statute. Our conclusion in this regard is strengthened by the fact that any other would render the distribution of an' estate, where the widow or surviving husband renounces under the provisions of the will, exceedingly difficult and expensive. Such facts should not overthrow any clear statutory provisions, but may assist in learning the intent of the statute when it is not otherwise entirely clear. The residuary fund is sufficient to pay the widow her share without touching the specific legacies.
The further question remains whether the court ruled correctly in taking into account the value of the Sandwich Manufacturing Company stock at the time the decree was entered and fixing the amount of personal property to be allowed to the widow. She is entitled, as we have said, to one-third of the personal property. In justice and right, in computing the value of this one-third the value of the personal property at the time of the distribution must be taken, and not the value at the time of the death. She has an interest in an undivided one-third of all the personal property up to the time of the final distribution. Some question was raised as to her right to have her one-third interest of personal estate distributed to her in kind, but that point is not insisted upon and therefore we do not pass upon it.
We find no error in the record. The decree of the circuit" court will accordingly be affirmed.
Decree affirmed.