168 N.E. 900 | Ill. | 1929
A bill in equity was filed by the appellant, Lena Higgins McCormick, in the circuit court of Douglas county on June 29, 1926, to obtain a construction of the will of Worth McCormick, her deceased husband. The eighth paragraph of his will is as follows: "It is further my will that the devises and bequests made as above in this my last will and testament, to my said sons and daughters, are made subject to the legal rights of my wife, Lena Higgins McCormick, to her said dower, homestead and award under the laws of the State of Illinois. Therefore, I devise, bequeath and give to my said wife, Lena Higgins McCormick, that portion of my real estate and personal estate allowed to her under the laws of the State of Illinois, the same as would be allowed to her provided I had departed this life intestate." By preceding paragraphs of the will the testator gave all of his real and personal estate to his four children, subject *234 to certain conditions not material to this controversy. The testator died April 27, 1925, seized of three tracts of real estate, one of which was the homestead of the appellant. He left surviving the appellant as his widow and his four children named in the will as his only heirs-at-law. These four children were made defendants to the bill and are the appellees here. The will was made May 1, 1923, and admitted to probate on May 1, 1925. It is stipulated that the appellant did not file an instrument in writing making an election either to take or to waive dower within one year after the death of the testator. The appellant maintains that the interest devised to her is determined by the laws in force at the time of the testator's death and that she is entitled to a one-third interest in fee in the real estate of which he died seized. It is contended by the appellees that the widow takes under the will the amount of property which she would have taken had her husband died intestate as defined in the eighth clause of the will of the testator, namely, dower, homestead and widow's award, and that the gift in the will was in lieu of dower and was something different in character though not in amount. The decree of the circuit court so construed the will, and from that decree the appellant has prosecuted an appeal to this court.
The Statute of Descent in force at the time the will was made provided that where there was a widow and surviving children the widow should receive one-third of the personal estate of the intestate. (Smith's Stat. 1921, chap. 39, sec. 1.) Under the Dower act then in force the widow of an intestate was also entitled to a one-third interest for life in the real estate of which he died seized. (Smith's Stat. 1921, chap. 41, sec. 1.) By the Statute of Descent in force at the time of the death of the testator the widow in such case is entitled to one-third of the personal estate of the intestate and to a one-third interest in fee in the real estate of which he died seized and in which she has waived her *235 right of dower. Such waiver may be effected by either of two methods. One of these methods is by filing and recording, within one year after the death of the intestate, an instrument expressing her intention to waive dower. The other method is by failing to file within that time an election to take dower. Such election to take dower can be made only by an instrument in writing signed by the widow which shall state in substance that she elects to take dower instead of a one-third interest in fee. (Smith's Stat. 1923, chap. 39, sec. 1.) The Dower act in force at the time of the death of the testator was the same as that in force at the time the will was made.
In the paragraphs preceding the eighth paragraph of the will the entire estate of the testator is devised to his children. In interpreting wills the law authorizes the determination of the intention of the testator from a consideration of all the language used. The rule is well settled that where two portions of a will are so repugnant to each other that they cannot be reconciled, the latter portion will control as being the later expression of the testator. (Liesman v. Liesman,
A will, in legal contemplation, takes effect at the time of the death of the testator and is to be considered as if it bore date as of that time. (Dickinson v. Belden,
The appellant can take nothing under the Statute of Descent because its provisions apply only to intestate estates. (Suiter v. Suiter,
The law is that the intention of the testator must be given effect unless to do so would contravene some principle of public policy or some rule of property. (DesBoeuf v. DesBoeuf,
If the testator had died intestate the appellant would have received, under the laws in force at the time of his death, one-third of his personal estate and a one-third interest in fee in the real estate of which he died seized and in which she waived her right of dower. In such a case her right of dower in the real estate of which he died seized could be waived either expressly by filing within one year after his death a written waiver of dower in such real estate, or impliedly by failing to file within that time an election to take dower therein. (Steinhagen v. Trull, supra.) In this case, however, the only election open to the appellant was between dower and the provision made for her by the will, and the election to take dower could be exercised only by the renunciation in the manner required by law, within one year, of the issue of letters testamentary or of administration, of the benefit of the provision made for her by the will. There was no such renunciation and she therefore had no right of dower. Instead of waiving her right of dower she had elected to accept in lieu of it the provision made for her by the will, which was that portion of the testator's real and personal estate which would have been "allowed to her under the laws of the State of Illinois" if her husband had died intestate. She was entitled to that portion of the testator's real estate not because it was allowed her under the law but because the will gave it to her. The portion of an intestate's real estate which is allowed to his widow under the laws of this State at the time of Worth McCormick's death was dower, — that is, a *239 life estate in one-third of his real estate, or, at her election, manifested in the manner provided by law, one-third of his real estate in fee, — the estate in fee being subject to the debts of the estate while the life estate was not. It was this provision which was "allowed to her under the laws of the State of Illinois," and it was this provision which by the language of his will the testator intended her to receive. She could have elected to take, instead of the provision made for her by the will, dower in the testator's real estate, which was a life estate in one-third of it, but she could do this only by renouncing the will. She did not renounce the will within the time fixed by law, and by her failure to do so she accepted the provision made for her by the will. She was not, however, obliged to waive her dower in the testator's real estate, for she did not take under the Statute of Descent but under the will, and the provision made for her by the will was, under the law, in lieu of dower. She had, therefore, no dower to waive, and the provision of the will which gave her that portion of the testator's real estate "allowed to her under the laws of the State of Illinois" was in effect a devise of one-third of his real estate in fee. It must be presumed that the testator intended she should take some interest in his real estate, and since by the very fact of accepting the provision made for her in the will she deprived herself of dower, there was no way for the provision to operate except as a devise of the fee in one-third of the real estate. It cannot be said that the testator, intending to give his wife an interest in his real estate, devised to her one-third of it in fee and in the same clause of his will made the devise dependent upon a condition that she waive dower when the acceptance of the devise deprived her of dower, and that therefore it was impossible for her to waive the dower to which she had no right. We are here construing the will in connection with the statute. The appellant is entitled to receive under the will a one-third interest *240 in fee in the real estate, subject to her right of homestead in that portion thereof which constitutes her homestead, to which she is also entitled. She is further entitled under the will to one-third of the personal estate of the testator.
It is further contended by the appellant that the court erred in refusing to allow her the reasonable fees of her solicitors in these proceedings, to be paid from the assets of the estate. The position of the appellees is that such fees can be allowed and paid out of the assets of the estate only where a trust is involved in the will sought to be construed. The rule is not so limited. Where a testator has expressed his intention in his will so ambiguously that it becomes necessary to prosecute a suit in chancery in order to obtain a construction of the will, the reasonable fees of the solicitors for the complainant should be paid from the assets of his estate even though a trust is not involved in the will sought to be construed. (Ward v. Caverly,
The decree of the circuit court is reversed and the cause is remanded, with directions to determine the reasonable fees of the solicitors for the appellant in these proceedings and to enter a decree in conformity with the views herein expressed.
Reversed and remanded, with directions. *241