61 Ill. App. 625 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
It is insisted on the part, of the appellant that the bequest of §2,409.55 to T. O. Tanton was a legacy, pure and simple, and that unless the will was revoked in some manner known to the law, it is to be paid; that the legacy is not what is known in law as a specific legacy, but is a general and demonstrative legacy, and therefore not adeemable. The view we take of the case is that the Circuit Court held correctly in deciding that the bequest over which this conten, tion arises was adeemable. Without going into a critical examination as to the different kinds of legacies, we think that the will in question, properly construed, gave one half of the personal and real estate to the objectors subject to the charge of the payment of the sum of money in controversy, and that if the legacy was adeemed, then the half of the estate under the will went to the objectors, free from the charge of the appellant for the debt due him from Mary E. Keller and which the testator willed him by way of compensation, the sum of $2,409.55.
In the fourth clause of the will the testator provides, in speaking of the objectors, that “ should their share of my personal estate not be equal to said sum of $2,409.55 and interest, as aforesaid, then my son, T. O. Tanton, shall have a lien on the land devised to them to secure the payment thereof,” etc. Thus clearly indicating that he had given by his will to the objectors one half of the estate, which was “their share,” although “ their share” might be exhausted in paying the $2,409.55, which was nothing more than ah incumbrance upon their bequest; in our minds it was clearly the intention on the part of the testator, only to give T. 0. Tanton one half of the estate, and to give the other half to the objectors, but to compel the objectors to pay the debt of Jacob Keller for which Mary E. Keller, his wife, had given'her bond. Where a legacy is given to pay the debt of another in the will, and 'after the,execution of the will, the testator himself pays it, there will be an ademption. It seems to us to be a very plain proposition, and any refinement of reasoning that would lead to a different conclusion would do violence to the plain meaning of the testator, and would be unjust; such a legacy is in its nature a specific legacy, put in the will for a specific purpose, and when that purpose is fulfilled by the testator himself, the legacy will be adeemed. Taylor v. Tolon, 38 N. J. Eq. 91; Richards v. Humphrey, 15 Pick. 133; Langdon v. Astor’s Executors, 16 N. Y. 36; Ware v. The People, etc., 19 App. 196; Richardson v. Eveland, 126 Ill. 37.
The question of fact tried in the case is as to whether or not the legacy of $2,409.55 was paid to T. O. Tanton by his father in his lifetime. The evidence in the case is somewhat conflicting, but from a fair consideration of it all, we think the court was not in error in finding that John Tan ton, the testator, had settled with and paid his son in full, shortly before his death, the sum of $2,409.55, the amount provided for in the will, and that it was done ivith the intention of satisfying that portion of the will. It was claimed, and insisted on by counsel for appellant, that if the payment was made by the testator as claimed, it was upon the condition that Mary E. Keller should sigma release accepting the provisions of the will on the day of its probate, which they claim she did not do, hence the bequest, they argue, was in full force. It is not so clear from the testimony that such conditions "were not attached, but we think the court below was justified in finding there were no such conditions as contended for by appellant. According to the admissions of the appellant, he made a memorandum at the time he settled with his father, for the bond of Mary E.- Keller, and attached it to the agreement of hers which he held, or wrote it on the agreement at the time of the setlement. This memorandum, some two years after the settlement "with his father, and after his father’s death, and after he anticipated trouble on account of this payment, he cut from this agreement and destroyed, so that it could not be produced; he then undertakes in his testimony to give an account of its contents, which according to his evidence shows that the legacy was not to be satisfied unless his sister, Mrs. Keller, ratified and agreed to be bound by the will on the day of its probate. This fact of itself throws suspicion on appellant’s case, for if the memorandum contained nothing against his interest and claim, why should he desire to destroy it % and the court had a right to take that fact into consideration with all the other evidence, and give it such weight as it deserved. Downing v. Plate, 90 Ill. 368; Winchel v. Edwards, 57 Ill. 41; Andrews v. Irwin, 101 Ill. 411. Appellee makes objections to the evidence admitted against objectors, of T. O. Tanton and Hannah Tanton, wife of the deceased, and probably other evidence, but as there are no cross-errors assigned we are not called upon to notice them. It is insisted that Mary E. Keller was an incompetent witness in favor of the objectors because she would, be heir to the item or amount freed by- the ademption, if any, as one-half of it, being intestate estate, would go to.her. But it will be seen from what we have held that it would all go to her children under the will, either as directly willed to them by the fourth clause or as residuary legatees under the sixth clause of the will. It is also objected that her-testimony as regards what the testator said to her in his lifetime concerning the payment of the legacy in question, in the absence of the appellant, was incompetent. This may have been so, but as the substance of it all was brought to the attention of the appellant by his sister, and he had an opportunity to explain it, and it was admissible for that reason, no harm could be done as long as it was admitted otherwise. Although some incompetent evidence may have been admitted, we do not think that any error of the kind was reversible error.
There are many other points raised by these parties and argued which we do not regard' of sufficient importance to notice. There is an objection that the circuit judge erred in sustaining objections of appellee to the appellant’s executor’s report not before the court and not appealed from. We regard the order of the Circuit Court as applying to the order appealed from only. After a careful review of the whole ca,se, we are satisfied that justice has been done. The order and judgment of the Circuit Court sustaining the fifth exception to the eighth item of appellant’s executor’s report, appealed from the Circuit Court to this court, will be affirmed.
