Kennedy v. Kennedy , 105 Ill. 350 ( 1883 )

Mr. Justice Sheldon

delivered the opinion of the Court:

The principal object of the bill in chancery in this case was to obtain a judicial construction of the following clause of the will of Dempsey Kennedy, deceased, viz: “After the payment of all my just debts and expenses, I give and bequeath to my wife, Mary, my homestead., to have and to hold 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, in lieu of her dower in my real estate, and one horse and carriage, and harness, two cows, all my household and kitchen furniture, $2000 in money, and my family library, for her own property. ” And the particular in which construction is sought respects the word “homestead,”—the meaning thereof, and what estate it embraces.

The will bears date September 6, 1869. The testator died about the month of October, 1870. His wife, Mary, was his second wife, by "whom he had three children living at his death, and she was then about seventy years of age. By his first wife he had five children, two of whom were living at his death, and descendants of the three others. The testator, at the time of the making of his will and of his death, was the owner of a body of land of about six hundred and thirty acres, situated in Washington county, in this State, and in sections 16, 17 and 20, in township 2 south, range 2 west of the third principal meridian,—the part in section 16 lying along the whole extent of its west line; the part in section 17 lying along the whole extent of the east line, and the part in section 20 being the west half of the north-east quarter, and the east half of the north-west quarter. These lands formed one connected body of land, upon which the testator resided, and which he cultivated and carried on as one common farm, having owned the lands in sections 16 and 17 from thirty to forty years, and the others about fifty-nine years. His dwelling house and out-buildings were situated on the west half of the north-east quarter of section 20. There were four tenant houses on the premises,—one in the yard where the dwelling house stood, and the others in different places. • The testator also owned a detached tract of one 'hundred and forty-five acres of timbered land in the southeast quarter of section 5, in the same township, and a two-thirds interest in three hundred and twenty acres of land in Williamson county, and some three or four lots in Fayetteville. .The testator left no minor child, nor had one, when he made the will. There were devises over of the remainder. The circuit court decided that Mary Kennedy, the widow, was entitled only to a homestead of the value of §1000, and appointed three commissioners to set the same off, who set off to the widow the dwelling house and thirty acres of land upon which it was situated, in the west half of the north-east quarter of section 20.

In support of the decree, counsel for defendants in error insist upon the application of the rule, that where a testator uses technical words he is presumed to employ them in their legal sense, and contends that the term “homestead” in this will must he held to mean the estate of homestead which is given by our Homestead Exemption act. The point of inquiry must be the intention of the testator, what did he mean by the term employed, and if that be satisfactorily ascertained from the will, it should prevail over any artificial rule of construction.

. It would be strange that a testator should undertake, understandingly, to devise the estate of homestead which is given by the Homestead Exemption act, and that, too, in lieu of dower. The law itself gives it, and it would be an idle act to attempt to give it by devise. And the law gives dower as well, and it would not be in the power of a testator to give that estate of homestead in lieu of dower, or of anything else. We are of opinion that the testator in this ease did not employ the term “homestead” in the statutory sense, as known in the Homestead Exemption law, but that he used it in the untechnical, ordinary acceptation of the word,—that he meant by it his home place, the place upon which he lived. And we do not know how we can restrict this in extent to any particular legal subdivision, or to any definite quantity of land short of the entire place which was used - and occupied together,—which is to say, the testator intended here to embrace his home farm, this whole body of land in sections 16, 17 and 20, which was all connected together, which he lived upon, and carried on as one single farm. . This would not include the detached tract in section 5, or any other land. It is only a life estate which is given, and the power of disposition mentioned in the clause under consideration is to be limited to the life estate. Boyd v. Strahan, 36 Ill. 355; Henderson v. Blackburn, 104 id. 227.

We are satisfied with the finding that no waste had been committed.

Three executors of the will were appointed. The bill represents that one has died; that since his death it has been impossible to transact any business, on account of one of the two remaining executors refusing to act; that the will requires the cooperation of two executors, and the appointment of an executor in place of the one deceased is asked. The decree makes appointment of another executor. The appointment of executors belongs to the jurisdiction of the court of probate, (the county court,) and we think it should have been left with that court to make such appointment.

The decree of the circuit court is reversed, and the cause remanded for further proceedings in conformity with this Opinion.

Decree reversed.