Fry v. Morrison , 159 Ill. 244 ( 1896 )

Mr. Justice Phillips

delivered the opinion of the court:

Appellant’s first contention is, the codicil upon which appellee bases her claim to an annuity was not duly proved and admitted to probate. It is provided by section 2 of the Statute of Wills, that all wills, testaments and codicils by which lands, annuities, etc., are devised, shall'be reduced to writing, and signed, etc., in the presence of two or more witnesses attesting the same, two of whom, declaring on oath before the proper court, etc., “shall be sufficient proof of the execution of said will, testament or codicil to admit the same to record.” We have held: “To entitle a will to probate four things must concur: it must be in writing and signed by the testator or testatrix, or in his or her presence by some one by his or her direction; it must be attested by two or more credible witnesses; two witnesses must prove that they saw the testator or testatrix sign the will in their presence, or that he or she acknowledged the same to be his or her act and deed ; they must swear that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same.” Dickie v. Carter, 42 Ill. 376; Canatsey v. Canatsey, 130 id. 397; Crowley v. Crowley, 80 id. 469.

The generic term “will” includes codicils, and legal provisions relating to wills must be understood as embracing codicils. A codicil duly attested is a will. The authorities are uniform in holding that proof of a codicil, whether written on the same paper or on separate paper, which codicil clearly and unmistakably refers to the will so as to preclude all doubt of its identity, establishes the will without further proof. Such is the rule in this State. (Duncan v. Duncan, 23 Ill. 306, and authorities cited.) In this case it was said (p. 308): “When the codicil is written on the same paper, or clearly refers to and identifies the will, no reason is perceived why the proof of the codicil should not establish the will. When that has been done, the requirements of the statute and its object has been fully accomplished. All fraud is prevented as effectually as if the will itself was proved by subscribing witnesses. This codicil refers to and makes the will a part of itself. The preceding will being on the same piece of paper, the proof of the due execution of the codicil necessarily gives effect to the whole paper consisting of the two parts, constituting together one will.”

In the case now before the court, the codicil and will, being on the same piece of paper, were each attested by the same witnesses. The papers attested by these witnesses together constituted one will. The witnesses appeared before the probate court, and their testimony shows they were present and saw the testatrix sign the will and codicil in their presence, and they believed the testatrix was of sound mind and memory, of lawful age, and under no restraint when she signed said will. The last clause of the affidavit of the attesting witnesses, in referring to the condition of mind of the testatrix “when she signed said will,” can by no reasonable interpretation be held to exclude the codicil as being a part of the will. They saw the testatrix sign both parts, which they attested, and when the will-—-the entire instrument-—-was made she was of sound mind and memory, of lawful age and under no restraint, as they believed. This testimony fulfilled all the requirements of the statute, as we have held it, and was sufficient to authorize the entire instrument to be admitted to probate.

It is next contended that the testatrix, at the time of her death, was not seized, in fee simple, of the real estate on which the annuity is sought to be declared a lien. The evidence shows that on August 29, 1878, appellant was the owner of certain property, which he and his wife conveyed to Thomas H. Boyd in exchange for the premises in controversy. Thomas H. Boyd and wife on the same day conveyed the premises in controversy to Julia W. Fry? the wife of appellant. Appellant was at that time financially embarrassed and was anticipating a financial crisis. He and his wife took possession of the premises in controversy the following March, and occupied the same from that time down to the time of her death as their homestead, with the exception of a temporary removal, for a period of about two years, to the home of appellant’s father. Appellant with his own funds erected barns, remodeled and repaired the dwelling house, constructed fences, out-houses, cisterns and walks, and made other like improvements upon the premises in controversy, and expended the sum of §5127 in that behalf, in the lifetime of his wife. The premises in controversy were assessed, after August 29, 1878, in the name of the appellant, who from his own funds paid all taxes and assessments upon the same, including the taxes assessed in 1878, which, to the time of the taking of testimony in this case, aggregated §1489.77. He also expended his funds in keeping the premises insured. During all that period the rental value of the premises ranged from four dollars to five dollars an acre per annum, and the entire premises were controlled and treated by the appellant as his own, in fee, during the lifetime of his wife, notwithstanding they were conveyed to her. After the death of his wife appellant continued to occupy the premises. It does not appear the deed was made to the wife by reason of any fraud or mistake, or was in her name without the knowledge or consent of the husband. Neither are facts shown by the evidence in this record which will overcome the general presumption that where lands are purchased and paid for by the husband and the title taken to his wife it will be intended as an advancement. The facts here relied on are very similar to those in Maxwell v. Maxwell, 109 Ill. 588, where it was said (p. 592): “The facts relied upon by complainant to overcome the presumption are, that he entered into the possession of the land, improved it, paid the taxes, and occupied it with his wife as a homestead, as his own property. There is nothing, however, in these facts inconsistent with the theory that the land was conveyed to the wife as an advancement to her. * * * The possession and improvements of the complainant, as well as the payment of taxes, may with the same propriety be presumed to have been under his life estate in the lands as under a claim of title in fee.” On the question under discussion that case is conclusive of this.

Appellant next urges, that if the testatrix was seized in fee simple of the premises in controversy at the time of her death, then, under the facts of this case, appellant had an estate of homestead, which could not be affected or divested by the codicil. By the terms of the will the property and estate of the testatrix were devised to the appellant subject to this annuity. At no time has he renounced under the will. It is a well settléd rule in equity, that a person, by taking any beneficial interest under a will, is thereby held to confirm and ratify every other part of the will,—or,.in other words, he shall not take any beneficial interest under a will and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat or in any way prevent the full effect and operation of any part of the will. Gorham v. Dodge, 122 Ill. 528; Brown v. Pitney, 39 id. 468; Woolley v. Schrader, 116 id. 29; Wilbanks v. Wilbanks, 18 id. 17; Stunz v. Stunz, 131 id. 210; Cowdrey v. Hitchcock, 103 id. 262.

Appellant insists the two last cases are in conflict with the statute, and opposed to the legislative enactments in force in this State. A careful examination of the reasoning on the part of appellant’s counsel does not tend to cause us to qualify those cases.

It is next insisted by appellant’s counsel that by virtue of section 10, chapter 59, of the Revised Statutes, the codicil is void. We do not accept the applicability of the reasoning to the will in question, and will not extend this opinion by a discussion of that section of the statute, as there is here no question of the claims of creditors against the testatrix.

It is finally urged that the decree is inequitable. We have examined the questions in this record, and every principle of law sustains the decree,’ and no other finding or construction could have been had without doing violence to established rules. The rights of the parties are fixed by law, and it is a maxim that “equity follows the law.”

We find no error in the decree, and it is affirmed.

. Decree affirmed.