240 Ill. 476 | Ill. | 1909
delivered the opinion of the court:
The principal controversy in this case is in regard to the meaning to be attached to the words, “whatever interest in my estate he may be entitled to under the laws and statutes of the State of Illinois,” found in the seventh clause of the will. It is contended by appellant that thereby the testatrix designated the interest which her husband would have had in her estate had she died intestate, while, on the other hand, the insistence is that the words mean the interest which he would have in her estate she dying testate as to all her property without making any provision for him, and no election having been made by him pursuant to section 12 of the Dower act. A number of cases.have been cited from other jurisdictions in which words substantially identical with those quoted were held to mean the interest which the devisee or legatee would have taken had there been no will. The words, however, have no fixed meaning. They are not like words which bring a devise within the rule in Shelly’s case, and which must be given force even if it appear, upon a consideration of the entire document, that a result follows which was not intended by the testator. In construing this instrument the only thing to be ascertained is the intention of the testatrix. If appellant be correct, she intended that her husband should have homestead, and, subject thereto, should have one-half of her real estate in fee, dower in the other half and all her personal property. An examination of the will shows at once that such was not her intention. By the residuary clause she devised and bequeathed the residue of her property, both real and personal, to Jettie Richardson. If her husband was to take all her personal property there would have been no personalty upon which the residuary clause could have operated. Again, she specifically bequeathed to Jettie Richardson her silverware, pictures, jewelry and diamonds, to be delivered in kind, and to Arthur B. Pease certain vases. Had she intended this property so specifically bequeathed to go to her husband, it seems clear that she would not have provided that it should go to other persons. She also provided by the seventh clause of her will that the property devised and bequeathed to her husband should be subject to a charge against him of $2000, and interest, on account of a loan which she had theretofore made to him. If she had bequeathed to him all her personal property it would have been unnecessary to make this arrangement. It is true that provision is made for the contingency of the husband’s making claim to the personal property specifically bequeathed to Jettie Richardson; but that is without significance, for the reason that the husband would be entitled to a share of the personal property in any event, and he might seek to obtain the personal property so specifically bequeathed to Jettie Richardson or some part thereof.
We think it clear that what the testatrix intended her husband to have was such interest in her estate as he would take under the laws of the State she dying testate as to all her property and making no provision for him by her will. The property to which he would then be entitled would be, first, one-third of her personal property after the payment of debts; (Laurence v. Balch, 195 Ill. 626;) second, homestead ; third, dower in the remainder of her real estate. In such event he could, of course, alter his rights by making an election under section 12, supra, just as he might have done here by such an election or by renouncing and making such an election-. In this case, however, as the will directs the manner in which the personal property left to him shall be paid or distributed to him and provides for deducting his debt to the estate from the property which he is to have, he takes by the will and not by the statute, which would have fixed his rights had no provision whatever been made for him by the will. While this conclusion is in accord with the views of appellee as presented by her brief, the decree is less favorable to the appellant, and we do not think it properly preserves his rights. As above indicated, the husband is entitled to homestead and dower, which is precisely the homestead and dower to which he would have been entitled had no provision been made for him in the will, subject only to such burden as the will imposes. The seventh clause requires that the husband “take his interest in my estate out of my real estate, so far as possible, except the household goods.” Those words can have no application to the homestead and dower, because they already came out of the real estate. The manner in which those interests shall be enjoyed is not in any manner altered nor is the husband’s right in the household goods affected by those words. He is still entitled to one-third of the household goods, but his right to one-third of the other personal property remaining after the payment of debts is affected by those words. By them, while he is entitled to the value of such one-third of other personal property so remaining, the same, so far as possible, is to be paid out of the real estate, subject to his homestead and dower. The decree adjudges Trubey “entitled to his rights of homestead as described and set forth in the statutes of the State of Illinois,” but the commissioners are not specifically directed to set off the homestead. The decree does not award dower, but provides that the husband is to “receive, use and enjoy one-third of the net rents and profits” of the premises after deducting the said homestead right. The commissioners are not directed to assign dower. They should have been required to set off the homestead and allot or assign dower as is contemplated by section 22 of the Partition act. It does not appear that dower cannot be assigned without great injury to the estate, and no jury has been empaneled under the provisions of section 39 of the Dower act. Under this decree the real estate other than the homestead would be partitioned between Jettie Richardson and'Mollie G. Taylor, and it would be their duty to pay to the husband one-third of the net income of the property so long as he should live. This arrangement does not find warrant in our laws pertaining to dower. The decree also fails to charge upon the real estate, for the benefit of the husband, the value of that portion of the personal property, other than the household goods, which passes to him. The proof in this record does not disclose whether or not his interest in the personal property exceeds the amount of his indebtedness to the estate, but in the absence of proof that nothing will be payable to him out of the real estate his rights in that respect should be preserved by the decree.
If Trubey’s interest in the personal property is not sufficient to pay his indebtedness to the estate, the balance due the estate is chargeable against his dower interest. It has not been contended by appellee that the husband’s debt to the estate can' be charged against his homestead interest. Any question of that character is therefore outside the scope of this contest.
Complaint is also made of that provision of the decree which adjudges that Brown, by virtue of his judgment against Trubey, has a lien upon whatever interest Trubey has in the real estate. This makes the judgment a lien upon the homestead, which is plainly wrong. Unless Trubey should assent to the sale of his dower interest and elect to take the present worth thereof in cash, it is clear the court has nothing to do with the Brown judgment, but the owner thereof should be left to enforce the same by such methods as he could have used had he not become a party to this suit. What Brown’s rights would be if Trubey should so assent and elect we do not now determine. That question will be decided when it arises.
Except as hereinabove indicated the record is free from error. The decree will be reversed and the cause will be remanded for further proceedings consistent with the views expressed in this opinion.
Reversed md remanded.
