195 Ill. 70 | Ill. | 1902
delivered the opinion of the court:
As far as appellants are concerned, the only question to be determined here is whether the gifts in the codicil to the Rexford children are absolute and unconditional or whether they are subject to the rule of preferences established by the testatrix in clause 10 of the will. According to this rule all gifts in clauses 2 to 6 inclusive are to be first fully met, then follow in order those in clauses 7, 8 and 9. The gifts to the Rexford children are in clause 8. The gifts in clause 7 are more than enough to exhaust the remainder of the assets. So, unless it can be determined that the provisions of the codicil as to the Rexford children are not subject to the .provisions of clause 10, there will be nothing for the gifts to the Rex-fords to operate on.
The codicil in express and apt terms revokes the bequest in trust for the children of the late Jennie Rexford, and then gives them (using the language of the codicil) “the lands belonging to me in section 2, town 37, in Palos, Cook county, Illinois, and other property to be selected by my executors of the value of $5000, such valuation to be made by my executors and fixed by them, or by my trustees, or my said trustees may pay money for said $5000 instead of other property, if they shall deem best.” It will be noticed that the gift to the trustees in paragraph 2 of the will is as comprehensive as language can make it, of all the property and estate of the testatrix, all to be in trust, however, upon the trusts declared in the will. It is contended by appellants that the language of the codicil in reference to the Rexford gifts is at variance with this language of the will, and as both cannot stand, the latter must prevail, as being the latest expression of the testatrix’s will.
The cardinal doctrine in the interpretation of wills is to ascertain the testator’s intention. If the intention as expressed in one part of the will can be carried out without doing violence to the language of the will in another part, it is the duty of the court to so construe the will as to give all parts of the will effect. This principle is so elementary that it is unnecessary to refer to authorities. It is plain that the testatrix intended all of her property to vest in her trustees. It is also plain that she had a very definite and well defined scheme of preferences. The beneficiaries in clauses 3, 4, 5 and 6 are her daughter and her daughter’s children. These are to be paid first. The beneficiaries in clause 7 are her own relatives and friends. They are to be paid next. The beneficiaries in clause 8 are her husband’s relatives and friends. They come next in the order of payment. Last of all comes the Chicago Orphan Asylum, in clause 9. If the estate was not sufficient to pay all, it will be seen that her own friends and relatives were to be preferred to her husband’s friends and relatives. Where the testatrix has laid down and carried out a consistent scheme of distribution throughout, it will not be disturbed by the courts unless they are compelled to do so by the very terms of the will or codicil.
The codicil makes many changes in the provisions of the will. It first makes an additional "gift of real and personal property to the daughter, adding to this gift the words, “It is my will that the above property pass direct to her and her children, and not to my trustees under the will.” Then follow changes in clause 7, and then changes in clause 8. After making these changes in clause 8, follows the gift to the Rexfords, but without any direction that this property shall pass directly to them and not to the trustees under the will. There would be no inconsistency in this property passing to the trustees, to be by them held and administered until such time as they would, by the terms of the will, be called on to transfer the same to the beneficiaries.
In Jenks v. Jackson, 127 Ill. 341, it was held that there was a gift in trust of all of a certain property to the trustee, to be held by him until he had set apart and allotted this property to the beneficiaries, and that then the title passed to the beneficiaries or to their special trustees. It was said in this case (p. 350): “The rule which controls all others in the interpretation of wills is, that the intention of the testator or testatrix, to be gathered from the entire will, must govern. Such intention is not to be ascertained from any particular word or expression used in the instrument, but is to be collected from all the words and all the provisions considered as a whole. At the same time, if it is possible, full effect must be given to every word and every clause of the will. The rejection of one clause to uphold another is a desperate remedy, to be resorted to only in case of necessity. While, where two clauses are diametrically opposed to each other and are wholly irreconcilable, the later must prevail, on the presumption it was intended to modify or abrogate the former provision, yet such later clause, if such a construction can fairly be given it, should be deemed to affirm, and not to contradict, the earlier clause. So, also, while the general rule is that words used in one part of a will must be understood in the same sense when used elsewhere in the same instrument, yet where there is something in the context which makes a different meaning imperative, as that otherwise the actual intention of the testator or testatrix would be defeated or a prior provision expressed in clear and decisive terms would be rendered inoperative, the courts will presume such words were used in different senses, when such different senses are not strained or unnatural, do no violence to the language used, lead to a reasonable conclusion and harmonize otherwise inconsistent provisions.”
It is clear that the gift to the Rexfords in the codicil was in lieu of the one in the will, revoked by the same codicil. A legacy given in addition to or in lieu of a previous legacy, to the same legatee, is generally subject to the same conditions as the previous legacy with respect to vesting, the fund out of which it is payable, etc., unless a different intent appears. (18 Am. & Eng. Ency. of Law,—2d ed.—730.) That the testatrix knew how to take a gift out of the general scheme of the will is plainly shown by the additional gift to her daughter, Mary E. Jackson, in the codicil, by the words: “It is my will that the above property pass direct to her and her children, and not to my trustees under the will.” No such words are found in the gift to the Rexfords. It is true, the gift begins with the words, “I give, devise and bequeath,” but so does the gift to Mary E. Jackson, and no conclusion can, we think, be drawn from these words which would exempt the gift from the general scheme of the will. If the testatrix had intended to make the Rex-ford gift absolute and unconditional, the other parts of the codicil show that she knew how to do it. Neither can the fact that the devise of the land is specific avail the appellants anything. The property, funds and assets are exhausted before the beneficiaries under clause 8 are in a position to have preferences among themselves. If it were a question of preference, only, as between distributees under clause 8, such specific devise might be effective.
The cross-errors assigned by appellees are in regard to the disposition made by the court in relation to the interests of Melissa D. Blood. One of the bequests of clause 7 is: “To pay my sister, Melissa D. Blood, the sum of $1000, which sum I direct to be paid her in installments, from time to time, after my death, as she asks for it.” There is no provision anywhere in the will making this gift preferential to any others given in the same clause, and the natural inference would be, that all of the gifts in this clause, in case of any deficiency of assets, would have to abate proportionately, including this gift to Mrs. Blood.
But it is contended that the words, “to be paid her in installments, from time to time, after my death, as she asks for it,” indicate a preference over the other gifts in this clause. In the third paragraph of the will the testatrix provides that the various legacies and bequests shall be paid as soon as possible, but delay in making payment shall not postpone the vesting of the same, and that no legacy shall bear interest, except those given in trust. This legacy to Mrs. Blood is payable to her “as she asks for it,” and not “as soon as possible,” as the others are. The time of the payment of this legacy is to be determined by the beneficiary; the time of the payment of the others is at the convenience of the trustees. We do not think that this indicates a preference. The third section of the tenth clause gives no intimation of any preference among the donees in that clause.
Appellees further contend that the notes and "mortgages of Mrs. Blood to the testatrix that came to their hands as executors were part of the estate comprehended in the general gift of the estate to the trustees, and that the gift of them to Mrs. Blood should abate proportionately, the same as the other gifts in clause 7. The language of the will is: “All moneys and property which I may have heretofore, or which I may hereafter duringmy life advance, loan or give to my said sister, are to be hers absolutely, notwithstanding the above provision for her benefit:” This was a declaration by the testatrix that what she had already given her sister or would yet give her before her own death was to be hers absolutely, notwithstanding the generous provision she had just made for her benefit in giving her the income of §15,000 for life. This was a confirmation of all ante mortem gifts and an absolute gift of all loans. We think this gift was a specific legacy, being a gift of a specific part of the testatrix’s estate, identified and distinguished from all other things of the same kind, and which could only be satisfied by the delivery of the particular thing,—that is, the notes and mortgages representing such loans. (18 Am. & Eng. Ency. of Law,—2d ed.—714.) Specific legacies do not abate in favor of general legacies. This is the only specific legacy in clause 7, all the others being general, and it should not be held to abate in the same proportion as such general legacies given under the same clause.
Appellants advanced Mrs. Blood §800, from time to time, on her legacy of §1000, as she asked for it. They claim that this sum should have been allowed them, as they paid it out in the utmost good faith, not knowing that there would, be a deficiency of assets until after the sale of the real estate of the testatrix showed a great shrinkage in values. The codicil, in reducing the bequest in trust for Mrs. Blood to §10,000, authorizes the trustees to use part of the principal of that fund, from time to time, for her support and comfort, in addition to the income, as they may deem necessary. Taking all the equities of the case into consideration, we are of the opinion that the circuit court should have allowed appellees so much of this amount as they may have overpaid Mrs. Blood on the assumption the estate would be sufficient to pay out the gifts in clause 7 in full, and charged the same on the trust fund of §10,000 created for her benefit.
The cross-errors of appellees are to this extent held to be well assigned and the decree is to this extent reversed, but is in all other respects affirmed, and the cause is remanded to the circuit court with directions to enter a decree in accordance with this opinion.
Affirmed in part and in part reversed and remanded.
