189 Ill. 500 | Ill. | 1901
delivered the opinion of the court:
Two questions are presented for our consideration by the record in this case: First, whether by the first clause of the will of the deceased, George C. Williams, appellant took the lands, described in the answer and the cross-bill as containing forty-one acres more or less; and, second, whether the legacies mentioned in the will were thereby made a charge upon either or both of the tracts of land described, the one as containing seventy-eight acres' more or less, and the other as containing forty-one acres more or less.
First—By the first clause of the will the testator gives and bequeaths to the appellant, George W. Williams, “forty acres of land, the same being the north-east forty of section 22,” etc. The north-east forty acres of section 22 could not be located elsewhere than in the north-east quarter of section 22. It is conceded by both parties to this litigation, that the testator did not own forty acres of land, or any land at all, in the north-east quarter of section 22. Therefore, the first clause of the will, upon its face and by its literal terms, gave and bequeathed to the appellant forty acres of land, which the testator did not own.
In view of the fact, that the testator did not own forty acres of land in the north-east quarter of section 22, it is claimed by the appellees that a latent ambiguity exists, which arises under 'the evidence outside of the will. As $i consequence, the rule is invoked that, where there is a misdescription of the property devised in a will, and the misdescription can be struck out so as to leave enough in the will to identify the property devised,.the court will deal with it in that way. In other words, it is contended that so much of the description as is false may be struck out, if enough remains in the will, interpreted in the light of surrounding circumstances at the time it was made, to identify the premises devised. This doctrine has been announced by this court in a number of cases. (Decker v. Decker, 121 Ill. 341; Whitcomb v. Rodman, 156 id. 116; Huffman v. Young, 170 id. 290).
The manner, in which the rule above announced is sought by the appellant to be applied to the present case, is as follows: It is said that the words, “the same being the north-east forty,” may be stricken out as being false, leaving the description of the premises as follows, to-wit: “Forty acres of land of section 22.” The testator owned, at the time of his decease, the parcels of land described in the answer and cross-bill as containing forty-one acres more or less. These parcels of land, making up forty-one acres more or less, are in section 22; and it is claimed that the description as above corrected is sufficient to identify the forty acres mentioned in the first clause of the will. The contention of the appellant is that the intention of the testator was to devise to the appellant, George W. Williams, the parcels of land so alleged to contain forty-one acres.
It was held by this court in Bingel v. Volz, 142 Ill. 214, that, in construing a will, the intention to be sought for is not that which existed in the mind of the testator, but that which is expressed by the language of the will; and that, while reference may be made to surrounding circumstances for the purpose of ascertaining the objects of the testator’s bounty, or the subject of disposition, and thus place the court as far as possible where it may interpret the language used from the standpoint of the testator at the time he employed it, still the rule is inflexible, that surrounding circumstances cannot be resorted to for the purpose of importing into the will any intention not therein expressed; and it was there held that, where a testator devised to his daughter seventy acres off the south side of the north-west quarter of a certain section 16, which he never owned or claimed to own, instead of seventy acres off the south side of the south-west quarter of said section 16, which he did own, the description in the will could not, by any rule of construction, be held to mean the land off the south side of the south-west quarter of section 16, and that parol evidence was inadmissible for the purpose of correcting the mistake. In Bingel v. Volz, supra, the doctrine, laid down in Kurtz v. Hibner, 55 Ill. 514, was re-affirmed and re-adopted; and in Bingel v. Volz, supra, we said, in'reference to the description under consideration in that case (p. 225): “If it be admitted that there are repugnant elements in this description, it is impossible to see what repugnant element can be rejected so as to leav.e a description which will apply to the land which the appellant claims. If we reject the words ‘north-west quarter,’ or ‘north-west,’ or ‘north,’ what remains does not apply to the land in question. The difficulty of the description, as it appears in the devise, is, that it substitutes ‘northwest’ for ‘south-west,’ and the correction of the description, so as to make it apply to the right tract, requires not only that one of these words should be stricken out, but that the other should be inserted. It involves more than construction; it requires reformation, and in this State at least, courts of equity have persistently refused to entertain bills to reform wills.”
In Huffman v. Young, supra, the case of Bingel v. Volz, supra, was referred to and was held to be not inconsistent with the cases of Decker v. Decker, supra, and Whitcomb v. Rodman, supra; and it was there said: “In the Bingel case, an attempt was made to reform a will by striking out certain words and inserting others, which it was held could not be done.” In Huffman v. Young, supra, the property devised in the will was described as “sixty-two and one-half acres off of the east side of the north-east quarter of section No. 20;” and it was there held that the words “off of the east side” might be stricken out so' as to leave the description as follows: “Sixty-two and one-half acres off of the north-east quarter of section No. 20;” but it there appeared that, although the testator did not own sixty-two and one-half acres off of the 'east side of the north-east quarter, yet he did own sixty-two and one-half acres in the eighty-acre tract lying in the north end thereof. The case at bar, however, is different from the case of Huffman v. Young, supra, and presents a state of facts, which brings it within the doctrine of the cases of Bingel v. Volz, supra, and Kurtz v. Hibner, supra. Here, the testator owned a tract of land in the south-west quarter of the north-west quarter of section 22, containing about twelve acres, certainly more than eleven acres. Some of the testimony tends to show, that the number of acres, contained in it, was twelve acres, but it certainly contained more than eleven acres, and at least 11.54 acres, the quantity of land contained in it being more than a half acre in excess of eleven acres. The testator also owned two tracts, one of nine acres, and the other of twenty acres, lying in the north-west quarter of the southwest quarter of section 22, the twenty acres being the east half of said north-west quarter, and the nine acres being off of the north side of the west half of the said north-west quarter. These three parcels of land, the first containing between eleven and twelve acres, the second containing nine acres, and the third containing twenty acres, were none of them in the north-east quarter of section 22, but the first was in the south-west quarter of the north-west quarter of section 22, and the last two were in the north-west quarter of the south-west quarter of section 22. To put these three descriptions together into the will, in order to give it effect, would be in direct violation of the rule of construction laid down in Bingel v. Volz, supra. It would amount to an attempt to reform the will of George 0. Williams by striking out certain words and inserting others. “The law requires that all wills of lands shall be in writing, and extrinsic evidence is never admissible, to alter, detract from, or add to, the terms of a will. To permit evidence, the effect of which would be to take from a will plain and unambiguous language, and insert other language in lieu thereof, would violate the foregoing well established rule.” (Kurtz v. Hibner, supra). The first clause of the will attempts to give and bequeath to the appellant forty acres of land, but the three tracts in section 22, which it is claimed the testator intended to give and bequeath to appellant, contained more than forty and one-half acres, if not forty-one acres. Hence, the quantity of land in the tracts, sought to be substituted for the description in the will, is not the same, as the quantity of land devised by the terms of the first clause of the will.
We are, therefore, of the opinion that the court below decided correctly in holding, that the tract described in the answer and cross-bill, as containing forty-one acres more or less, was not devised to appellant by the first clause of the will.
A large amount of testimony was introduced by the appellees, tending to show that many years before his death, the testator owned forty acres of land in the northeast quarter of the south-east quarter of section 22, called the “Cope tract;” that the deed, conveying" it to him, described the grantee as George Williams, instead of George G. Williams; that the appellant, whose name is George W. Williams, sold the Cope tract to a third party as his own; that, there being some dispute as to whether the Cope tract was owned by the father or the son, the father, in making his will, devised the Cope tract of forty acres to his son, so as to settle the dispute, and make the title of the latter’s grantee good; and that it was the testator’s intention to devise the Cope tract by the first clause of the will. We do not deem it necessary to discuss this branch of the case, or to pass any opinion upon it.
Second—The next question is, whether the legacies, mentioned in the will and the codicil thereto, are charges upon the tracts described, the one in the original bill as containing seventy-eight acres more or less, and the other in the cross-bill as containing forty-one acres more or less. This question must be determined entirely from the provisions of the will itself. It is conceded here, that the personal property is not sufficient to pay the legacies mentioned in the will. The general rule is, that the debts and pecuniary legacies are to be paid from the personal property, and, where there is a deficiency of personal property for that purpose, the legacies must abate, unless the testator charges his real estate with their payment. The charge upon the real estate may be made by express directions to that effect contained in the will, but the intentibn of the testator to charge the real estate with the payment of the legacies may be implied from the whole will taken together. In other words, legacies may be made a charge upon real estate, either in express terms, or by implication. (Heslop v. Gatton, 71 Ill. 528). In the present will, there are no words, which amount to au express charge of the payment of the legacies upon the real estate, and the question, therefore, arises whether the terms of the will are such, as that an intention on the part of the testator to make such charge can arise by implication therefrom. It is a general rule well established by both English and American decisions that, if legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge upon the residuary real as well as personal estate. (13 Am. & Eng. Ency. of Law,—1st ed.— p. 117).
In Reid v. Corrigan, 143 Ill. 402, it was said, quoting from Duncan v. Wallace, 114 Ind. 169: “Where a testator gives legacies, and so disposes of all his personal property that it cannot be made available for the payment of the legacies, the natural presumption is that he intended to charge the land with the payment of the legacies, since a different rule would attribute to him a purpose to make a gift in appearance and not in reality.” In Reid v. Corrigan, supra, it was also said: “If the residuary clause in this will had read, ‘all the rest, residue and remainder of my estate’ or ‘property,’ it would scarcely have been questioned that the testator only intended appellees to have so much of the rest of his real estate as remained after the payment of the legacy to appellant. * * * By holding that the expression, ‘rest, residue and remainder, ’ was intended to limit the devise to appellees to that part of his estate which should remain after deducting all that had been previously bequeathed, effect can be given, to the entire will, whereas to say that by their use he intended to devise all of his real estate not previously devised, without reference to said legacy, we are forced to defeat an intention as clearly expressed as language can make it, or attribute to him the inconsistency of having made his niece the object of his bounty by words, at the same time intending that she should never enjoy that bounty.”
In the case at bar, the testator bequeathed different sums of money to his sons and daughters, and he must have known that his personal property, excluding such part of it as he gave to his daughter, Josephine Price, was not sufficient for the payment of the legacies. It is, therefore, natural to suppose that he intended to charge the residuary lands of his estate with the payment of the legacies. By the terms of the tenth clause of the will, the testator gives and devises “all the rest, residue and remainder of my estate, after my debts and funeral expenses are paid, to my sons and daughters, to share and share alike.” This language brings the present will within the rule announced in Reid v. Corrigan, supra. After the legacies are given generally, “the rest, residue and remainder of my estate” are given in one mass to his sons and daughters; and it follows that the legacies must be a charge on the residuary real estate.
We are, therefore, of the opinion that the decree of the court below was correct in making the payment of the legacies a charge upon both the tracts of land above mentioned.
For the reasons above stated, the decree of the circuit court is affirmed.
„ „ _ 7 Decree affirmed.
Boggs, C. J. and Hand, J., dissenting.
