| Ill. | Dec 17, 1907
delivered the opinion of the court:
To the bill herein, which was for the specific performance of a contract for the conveyance of real estate located in Cook county, Illinois, a general demurrer was sustained. It is urged in support of the action of the court below that the court had no jurisdiction to proceed in the cause, for the reason that all the defendants to the bill were non-residents of the State of Illinois and that no personal service was had upon either of them. Whether or not personal service was had upon either or ail of the defendants does not appear from the face of the bill, and -this question as to the jurisdiction of the court cannot, therefore, be raised by demurrer in this case.
It is next contended that the bill is fatally defective because it does not aver that the complainant, who was the vendee, tendered the unpaid portion of the purchase money prior to the filing of the bill. The contract acknowledges the payment of $1000 to be applied on the purchase price, and the vendee agrees to pay, within thirty days after the title has been examined and found acceptable, the balance of the purchase money ($29,000) at a certain office in Chicago, provided the deed to be executed to him, and a title guaranty policy, shall then be ready for delivery. The deed and the guaranty policy were to be ready for delivery at a time as early as, or earlier than, the time when the $29,000 was to become payable, and there was no occasion to make a tender of that sum until the time when it was payable. The bill avers that Sara L. Johnson, who was to make the conveyance, neglected and refused to obtain the title guaranty policy and neglected and refused to execute or tender to complainant the deed for the premises. Under these circumstances it was not necessary to aver by the bill the tender of the unpaid portion of the purchase money prior to the filing of the bill, where, as here, the bill averred the complainant’s ability and readiness to comply with the contract at all times after the execution thereof, and where, as here, he offered by his bill to bring into court the unpaid portion of the purchase price. Dulin v. Prince, 124 Ill. 76" date_filed="1888-03-28" court="Ill." case_name="Dulin v. Prince">124 Ill. 76; Watson v. White, 152 id. 364.
It is next insisted on behalf of demurrant that Sara L. Johnson, who as executrix of the will of her husband made the contract, enforcement of which is sought,- had no authority, under and by virtue of that will, to sell the real estate of the deceased, and that, this being true, specific performance should not be decreed.
The will of Johnson contains certain numbered clauses or articles. That portion which follows the sixteenth article, as set out in the bill, is numbered and paragraphed and reads as follows:
“Seventeenth.—I appoint my said wife, Sara L- Johnson, to be executrix and Charles W. Miller of Sparkhill, New York, to be executor, of this my will and in case of the refusal or inability of either to act or in case of the death or the removal of either, I do appoint Francis LFames to be executor in his or her stead and place.
“I authorize my said executrix and executors or such of them as may be acting as such, in their discretion, and also authorize my trustee in its discretion, to sell and convey any and all real estate left by me whether within or without the State of New York, but any such sale if not for the payment of debts, shall be deemed to be in aid of the trust hereinbefore created, and the proceeds of such sale or sales shall be handed over to or kept by said trustee as part of said trust estate.
“I direct that neither of said executrix and executors or said trustee be required to give bonds or security for the performance of their duties, as such executrix, executors or trustee.
“Lastly, I revoke all former wills by me made.”
Afterwards he executed a codicil, the fourth clause of which reads as follows:
"Fourth—I hereby modify the seventeenth article of my will so that it shall read as follows:
"Seventeenth—I hereby appoint my said wife, Sara L. Johnson, to be executrix and Charles W. Miller of Spark-hill, New York, to be executor of this my will, and in case of refusal or inability of either to act, or in case of the death or removal of either, I do appoint the Union Trust Company of the city of New York to be executor in his or her stead and place. If, however, the said Union Trust Company should refuse to qualify as such executor, then and in such case, I appoint my friend Francis L. Fames to be executor in the place and stead of the said Sara L. Johnson or the said Charles W. Miller, as the case may be.”
The position of demurrant is, that it appears from the fourth clause of the codicil that it was the intention of the testator to take away from his executrix the power, which he had given her under article 17 of his will, to sell the real estate, while appellant contends that clause 4 of the codicil modifies only the first paragraph, following the word “seventeenth” in the will, leaving intact the two succeeding paragraphs, by which the executrix and executor were authorized to sell his real estate and by which it was provided that they should serve without being required to give bond. By the first clause of the codicil the testator stated:
“First—I hereby re-publish, ratify and in all things confirm my said last will and testament, save in so far as any part of it is inconsistent with this codicil or is modified or changed hereby.”
That portion of the will which authorizes the executrix and executor to sell real estate and relieves them from the necessity of giving bond is not inconsistent with any part of the codicil. The codicil contains no words of revocation. It only provides that each of certain specified articles contained in the will shall be modified to “read as follows.” The fourth clause of the codicil merely provides that in case either the executrix or executor first named in the will does not act or ceases to act, then the Union Trust Company shall be substituted, and if that company refuses to qualify, then Francis L. Fames shall be appointed. The first paragraph following the word “seventeenth” in the original will is to the same effect, except that the Union Trust Company is not therein mentioned but Fames is to. become an executor in case either of those first nominated fails or ceases to act. The fourth clause of the codicil is not germane to either the second or third paragraphs following the word “seventeenth” in the original. It does not refer to the same subjects and seems to have been drawn without any purpose of dealing with those matters.
“Where a codicil is appended to a will and does not contain any clause of revocation, the provisions of the will are to be disturbed only as far as is absolutely necessary to give effect to the provisions of the codicil, and in other respects such a will and codicil are to be construed together.” Page on Wills, sec. 462; Vestal v. Garrett, 197 Ill. 398" date_filed="1902-06-19" court="Ill." case_name="Vestal v. Garrett">197 Ill. 398.
Keeping this rule in mind and taking into consideration all parts of the will and codicil now before us, it seems to us that the proper conclusion to be drawn therefrom is, that when the testator, in the fourth clause of his codicil, designated a certain portion of his will as the “seventeenth article” thereof, he had reference only to the first paragraph of that will which follows the word “seventeenth” therein, and did not regard the paragraph which conferred upon his executrix and executors power to sell real estate, and the paragraph which dispenses with the necessity of a bond from his legal representatives, as a portion of the seventeenth article, and did not intend to modify, change,'alter or revoke the two last mentioned paragraphs. We are therefore of the opinion that his executrix had power to sell his real estate and to enter into the contract which is involved in this suit.
The decree of the circuit court will be reversed and the cause will be' remanded to that court, with directions to overrule the demurrer.
Reversed and remanded, with directions.