Wardner v. Seventh Day Baptist Memorial Board
83 N.E. 1077
Ill.
1908
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

The chief subject of contention is whether the second codicil to the will gave appellant power to sell the real estate in fee and consume or dispose of the proceeds. In reaching a conclusion on this matter it is necessary to construe the two codicils in connection with the will.

In construing a will and codicil it is the general rule that the disposition made by the will should not be disturbed further than is absolutely necessary to give effect to the codicil. The codicil revokes only so much of the will as is inconsistent with it. (Vestal v. Garrett, 197 Ill. 398; Meckel v. Johnson, 231 id. 540.) “The first and great rule in the exposition of wills, to which all other rules must bend, is, that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law.’’ (Smith v. Bell, 6 Pet. 68; Bradsby v. Wallace, 202 Ill. 239.) In seeking the intention of the testator as to the construction and interpretation that should be placed upon ambiguous terms or clauses in a will, the relation of the parties, the nature and situation of the subject matter, the purpose of the instrument and the motives which might reasonably be supposed to influence him in. the disposition of his property may properly be considered. (Smith v. Bell, supra; 17 Am. & Eng. Ency. of Law,—2d ed.—p. 21: 17 Cyc. 673, and cases cited in each.) In discovering the intention of the testator by judicial construction, the courts should apply natural methods of finding and weighing evidence. Peet v. Peet, 229 Ill. 341.

The original scheme of the testator was to provide for his wife, his son, grandchildren and three societies. His first wife having died, he, having married again, found it necessaiy to change his will, and thereupon made a provision for appellant, his second wife. He also made a provision as to any children that might be born of his second wife, but as there are none that condition is not here important. He left only one child. Testator was a clergyman, and it is obvious from the will and codicils that he was deeply interested in the religious and spiritual welfare of his fellow-men. He left no real estate in fee to his son or grandchildren. There is nothing in the entire document to indicate that he intended that his son or grandchildren should be supported and maintained out of the estate. Unless the second codicil of the will should be construed as giving the wife the power to dispose of and use for herself the principal of the real estate, it is very clear that, outside of the legacies provided for, he intended to have the bulk of the principal of his estate left to the three societies rather than to his wife or heirs. It would hardly be reasonable to suppose, from anything in this record, that testator intended to make more liberal provisions for appellant, his second wife, than he did for the first wife, the mother of his child and presumably the one who assisted him in accumulating his property. From the language of the will, viewed in the light of surrounding circumstances, the condition of testator’s property and of his family, his relation to' the legatees and devisees, it would not be the natural ¡presumption that testator intended that appellant should have the power to cut off absolutely the three societies named.

As we understand appellant’s contention, it is that she has the right to sell any or all of the property of testator in fee simple and use or consume as much of the proceeds as she desires, subject to the payment of the legacies to the son and grandchildren. It is a general rule in all cases where by the terms of the will there has been an express limitation of an estate to the first taker for life and a limitation over, with general expressions apparently giving the tenant for life an unlimited power over the estate but which do not in express terms do so, that the power of disposal is only co-extensive with the estate which the devisees take under the will, and means such a disposal as the tenant for life could make, unless there are other words clearly showing that a larger power was intended. (Welsch v. Belleville Savings Bank, 94 Ill. 191; Henderson v. Blackburn, 104 id. 227.) Do the words “use, dispose of and control according to her own judgment during her natural life,” in said codicil, give appellant the power to sell and dispose of the fee in the property?

In Boyd v. Strahan, 36 Ill. 355, a will provided that the wife should have the balance of money and all personal property not enumerated or otherwise disposed of by the will, “to be at her own disposal and for her own proper use and benefit, during her natural life.” It was there held that these words meant only that she should have such disposition as a tenant for life could make.

In Kennedy v. Kennedy, 105 Ill. 350, the will provided that after the payment of just debts and expenses the testator gave his homestead to his wife, to have “during her life, to occupy and use the same or dispose of it at her will and pleasure, and use and control the proceeds thereof.” It was held that the will gave the wife only a life estate and the power of disposition in her was limited to the life estate.

In Brant v. Virginia Coal and Iron Co. 93 U. S. 326, the will devised to the wife a life interest in certain property, “to do with as she sees proper before her death.” It was there held that this only conferred a power to deal with the property as a life estate.

In Smith v. Bell, supra, the will gave the wife personal property “for her own use and benefit and disposal, absolutely.” The estate was not expressly limited to her life but a remainder was limited to her son, and the court there held that the widow’s power of disposal of the personal property in question was merely such a power as might be made by a person having a life estate, only, in said property.

The testator has used in this codicil the words, “all that remain of the property” after paying legacies, and again, “all that remains after paying the legacies.” We think these quoted phrases are used in both cases with substantially the same meaning, and that they mean all that “remains” after paying the legacies in question. On the construction that has been placed upon similar words by this court in Siegwald v. Siegwald, 37 Ill. 430, Welsch v. Belleville Savings Bank, supra, Green v. Hewitt, 97 Ill. 113, and Thompson v. Admhs, 205 id. 552, it is evident that these words do not necessarily manifest an intention to create a power in the life tenant to dispose of the whole estate. Under these authorities our conclusion is that the testator intended to give to appellant only a power of disposal coextensive with the life estate. There are no words in the will clearly indicating that the larger power was intended. Mansfield v. Mansfield, 203 Ill. 92; Metzen v. Schopp, 202 id. 275; Vanatta v. Carr, 223 id. 160.

Appellant cites and relies upon Coulson v. Alpaugh, 163 Ill. 298, Skinner v. McDowell, 169 id. 365, and Kirkpatrick v. Kirkpatrick, 197 id. 144, as laying down a contrary doctrine. The wills in question in these last three cases gave the life tenants, in terms, the power to sell or dispose of the property in fee simple. In the first case the words of the will were, “with full power to use and dispose of, to sell, and re-invest the proceeds in lands or otherwise.” In the second case the will read: “That all the residue of my estate, personal and real, shall be held by my wife, * * * to be sold, retained and exchanged, used and managed by her as she may think proper during her life.” In the third case the will read: “I give to my wife, during her life, to manage, rent or sell, as she may direct.” There is nothing said in these cases, or in Markillie v. Ragland, 77 Ill. 98, and Funk v. Eggleston, 92 id. 515, that in any way conflicts with what has been heretofore said.

The appellant further insists that if this codicil does not give the power to dispose of the fee in the real estate, then that under the authority of Gavin v. Curtin, 171 Ill. 640, the widow should be entitled to have the property sold and the proceeds used for her maintenance and support. This last' case held that a court of equity might take jurisdiction to dispose of real estate in which there was a life tenancy and re-invest the proceeds for the benefit of the life tenant and the remainder-man, where it appeared that unless equity interfered the property would be lost to both the life tenant and the remainder-man. There is nothing said in that case that would justify the conclusion that this court would have the right to construe this will so that the property could be disposed of and a part of the principal used for the support of appellant.

Appellant contends that the second codicil revoked the first codicil, and that the son, Morton S. Wardner, does not, under the will as it now stands, have a life interest in the real estate known as 1260 and 1262 West Harrison street, Chicago; that the second codicil, in referring to the legacies to be paid said Morton S. Wardner, intended only the money legacy. If this construction be placed upon the second codicil, then it, in effect, renders meaningless that portion of said second codicil which provides that in case the appellant shall have children by the testator, they shall have, or their survivors, at majority, the same amount as said Morton S. Wardner, “as estimated by three competent, disinterested judges to be appointed by the judges of probate before whose court my will shall be proven.” There would be no necessity for having three persons estimate the amount to be given to said children of the appellant if the money legacy of $4000, only, was being considered. An executor or the court could readily figure out the amount if such were the construction. When one construction of a will renders a portion of it meaningless and another gives effect to all the words used, the latter must be adopted. (Fisher v. Fairbank, 188 Ill. 187; Hubbard v. Hubbard, 198 id. 621.) The life estate of appellant must be held subject to the life estate of the son, Morton S. Wardner.

In the view that we have taken of the questions already considered it will be unnecessary to decide the other points raised in the briefs.

The appellant took only a life estate, with the power of such disposition as a tenant for life could make. The circuit court therefore properly dismissed the bill for want of equity, and its decree will be affirmed.

Decree affirmed.