18 N.E.2d 186 | Ill. | 1938
Appellants, nephews of the testatrix, filed in the circuit court of Cook county, a bill to construe the will of Alice M. Quigley, deceased. The will, written in longhand by the testatrix, provides: "I hereby give, devise and bequeath to my brother, Charles L. Quigley, all my property, real estate, personal and of whatever form for his personal use during his lifetime." It then provides for the payment of all her debts and obligations and the expenses of her last sickness and death, and provides for the payment of $100 to the Catholic Extension Society for masses for the repose of her soul. The will further provides: "After the death of my brother, I wish that whatever is left of my estate be divided among my four nephews." The question presented is the extent of the interest given to Charles L. Quigley. The circuit court held he was given a life estate with full power to dispose of the corpus of the estate during his lifetime, by proper deed or deeds of conveyance, but not by his last will or testament. It is the contention of appellants that Charles was given only a life estate, with no power to dispose of the corpus.
The testatrix was a spinster sixty-nine years of age at the time of her death. She had been a teacher in the public schools of Chicago for about thirty years and had retired a few years before her death. She lived with her brother Charles, for the last seven or eight years of her life. Charles and her four nephews were her only heirs and next of kin. Her estate consisted of two vacant lots worth about $1000 each, and personal property valued at approximately $29,000. The personal property included capital stock in various corporations, of a market value of $27,000, and the rest consisted of bank deposits, checks and a promissory note.
In determining the interests created by the will, we must ascertain and give effect to the intention of the testatrix as expressed by all the provisions of the will, interpreted *153
in view of the circumstances surrounding the testatrix.(Hollenbeck v. Smith,
It is next argued by appellees that the words "whatever is left" show an intention to create a power of disposal. Appellants agree the rule is that when a will creating a life estate contains a subsequent clause granting remaindermen whatever is left of the estate, no power to dispose of the corpus of the estate is created unless the expression "whatever is left" can be given no other reasonable meaning than *154
that of a grant of such power of disposal. (Vanatta v. Carr,
It is further argued that the will, when read in the light of the surrounding circumstances, including the nature of the property and the relationship of the parties, shows an intention to create a power of disposal of the corpus. The substance of this argument in regard to the circumstances is that the testatrix had lived with Charles for the last seven years of her life, the income from the estate was small and her relations with the nephews were strained, so that she did not intend to give Charles merely a life estate *155
and the corpus to the nephews. Much of the evidence on which this argument is based is not convincing. The only evidence which might indicate the existence of a strained relation between the testatrix and appellees is the testimony of the woman who had been housekeeper for the testatrix and Charles for three and one-half years immediately preceding testatrix's death, that testatrix and appellees had not visited each other during that time. She could not possibly have known of all the visits made by or to testatrix. Moreover, shortly before making her will, the testatrix loaned appellee Vernon J. Quigley, $1410, and gave him a larger share of the remainder than any of the other remaindermen. The only evidence as to the income from the estate is the bare statement of Charles that the first year the income was $500. If this be true, it is of little significance. The financial condition of Charles or of the nephews is not shown. It is true that the testatrix lived with Charles for seven years prior to her death, but it is not shown that he supported her. The housekeeper testified she was paid by the testatrix. There was testimony that the testatrix had made statements that she wanted to leave everything to Charles. This evidence was clearly incompetent, for statements of the testatrix, either before or after the making of the will, cannot be received to prove what she intended by the written words of the will. (Peet v. Peet,
It is argued by appellees that the character of the testatrix's property is such that unless the power of disposal is granted, the life tenant can receive but little benefit from *156
the estate. In support of this contention the life tenant says that $500 was cash in bank, upon which no interest is being paid, and that it is absurd to think that the testatrix would want him to keep the money on deposit during his entire life just for the benefit of the remaindermen. One or two other items of property are also mentioned in this category. The contention of the life tenant is predicated upon an erroneous view of the law. It is well settled that a gift of the use of money to a life tenant is a gift of interest and not of the corpus. A life tenant has, under proper restrictions, the right to invest and reinvest money or its equivalent in order that his bequest may be made remunerative. It would be idle to say that he must leave such assets dormant. The executor or trustee, as the case may be, is bound to invest the money for the benefit of the usee. If the life tenant desires to have possession of the property he may do so under such reasonable restrictions as the courts may impose. The matter of requiring security is now, ordinarily, one of discretion with the court having jurisdiction over the property. 17 R.C.L. "Life Estates," sec. 17, p. 626, et seq; 21 Corpus Juris "Estates," sec. 245, p. 1040; Scott v. Scott,
After considering the entire will and all the competent evidence of the surrounding circumstances, we conclude the will created only a life estate in Charles L. Quigley, with a remainder to appellants.
The decree is reversed and the cause is remanded to the circuit court, with directions to enter a decree in conformity with the views herein expressed.
Reversed and remanded, with directions. *157