Blackmore v. Blackmore , 187 Ill. 102 ( 1900 )

Mr. Justice Hand

delivered the opinion of the court:

This case turns entirely upon the construction to be given to the will of John Blackmore, deceased. If complainant’s construction of said will, and that under which all his brothers and sisters, except the defendant Lincoln Blackmore, have acted in releasing their claims, is correct, then the demurrer should have been overruled and the defendant Lincoln Blackmore be decreed to be entitled to only said sum of $108.52, and upon payment of that sum to said Lincoln Blackmore he should be decreed to release the lien created in his favor by said will. On the other hand, if the construction placed upon said will by the court below is correct, then the said defendant Lincoln Blackmore is entitled to said sum of $108.52; also to $456, being one-tenth the valuation of said one hundred and twenty acres of land at $38 per acre; and also to one-tenth of the rental value of said land from the time the last money was paid up to the time said $456 is fully paid.

What the testator intended by said will is to be gathered from the will and the circumstances under which it was made. The will is inartificially drawn. It is evident that it was drawn by an illiterate person and one unlearned in the law and even unacquainted with the correct use of the English language. In the second clause of the will the word “is” is used for “his;” “the” for “they” in two different places; “of” for “off” and “there” for “their;” while in the fifth clause the word “to” is used for the word “two.” In the sixth clause “there" is again used for “their.” The third clause of the will is the one under which the complainant gets his right to the land in question, and to determine the meaning of it the second clause has to be taken in connection with it. When it comes to a construction of the fourth clause, the second clause has to be taken in connection with. i't. The third clause does not specifically refer to the second clause, but it speaks of the condition imposed upon Albert, which condition is found in the second clause, devising eighty acres of land to Albert. The second clause of the will is as follows: “My son Albert shall have Eighty acres in section Twenty-three, known as the Keley farm, said land shall be valued at Thirty-six Dollars per acre, the amount to be divided in equal parts among my sons & daughters. Albert to have is share in said farm & he shall pay annuly to my sons and daughters what the cash rent would be on the said farm until the are all paid of. Albert need not pay Charles, or Grant, as the will have to pay Albert the difference in the value of there farms.” The third clause, being the clause under which the complainant gets his right, reads as follows: “My son Charles shall have One Hundred & twenty acres in section twenty-six, known as the Morgan farm, said land shall be valued at thirtyeig’ht dollars per acre. Charles shall pay annually to my sons and daughters on the same condition as Albert." It will.be seen that the condition referred to and which was imposed upon Albert, and which is fotmd in the second clause of said will, is as follows: “Albert to have is share in said farm &-he shall pay annuly to my sons' and daughters what the cash rent would be on the said farm until the are all paid of.” This condition is to be, we take it then, read into said third clause and treated the same as though forming a part of it. It will be seen that the following language found after the price per acre in the second clause of said will, namely, “the amount to be divided in equal parts among my sons & daughters,” is not found in the third clause of said will; but that it is to be treated as though it were we make no question, for we see that in the last two lines of the second clause of said will the testator provided that “Albert need not pay Charles or Grant as the will have to pay Albert the difference in the value of there farms. ”

We think the idea of equality pervades this entire will and each and every clause of it; that an equal division of the value fixed upon the farms by the testator among his children was the evident intent of the testator. If this were his intention then that intention must prevail. It is further evident from the will that the testator designed to keep the three farms devised to Albert, Charles and Grant in the Blackmore family. To effect such intention and avoid a sale he devised his land to his sons, Albert, Charles and Grant, and fixed a valuation thereon to govern his heirs in the settlement of his estate. The farm devised to Albert was valued at $36 per acre, and that devised to Charles at $38 per acre and that devised to Grant at $45 per acre, the three farms upon such valuation aggregating the sum of $12,840. This amount, he directs, “shall be divided in equal parts among my sons & daughters.” The time of such division is fixed by the last clause of the first paragraph of the will after the death of his wife. As further evidence that the testator had determined upon an equal division of his estate between his children he provides by paragraph 6: “Those of my sons and daughters who have had or may have money from me, the same shall be deducted from there share of estate.”

The difficulty arises over the following language found in the second paragraph of the will: “Albert to have is share in said farm & he shall pay annuly to my sons and daughters what the cash rent would be on said farm until the are all paid of.” At the time the will was made, Albert, Charles and Grant were minors. It was evident to the testator that his children, other than such sons, might hot come into the possession of their share of the estate for some time, should he and his wife die soon, by reason of the inability of Albert, Charles and Grant to pay them their portion thereof. We .think such provision was inserted in the will with a view to cover such contingency, and was to be the payment to them of rent for the use of and in lieu of interest on their shares of the estate until the same should be paid to them. Such construction is not strained or unnatural, but is in harmony with the idea of equality which pervades the will. The construction of a will depends upon the intention of the testator, to be ascertained from a full view of everything contained within “the four corners „of the instrument.” The natural construction of the. words will be adopted unless there is such an impracticability of so construing them as to authorize their rejection, or such uncertainty that no effect can be given to them in that sense. (Taubenhan v. Dunz, 125 Ill. 524.) A technical construction of words and phrases, although prima facie the one which should prevail, will not be carried to the extent of defeating any obvious general intention of the testator, since wills are often prepared by those wholly unacquainted with the precise technical force of legal formulas, and who, from a consciousness of such deficiency, often exert themselves to drag in such phrases wherever they suppose they would probably have been adopted by an experienced draughtsman. , 1 Redfield on Wills, (3d ed.) 435, 436; 29 Am. & Eng. Ency. of Law, 345; Markillie v. Ragland, 77 Ill. 98; Brownfield v. Wilson, 78 id. 467,

The fifth paragraph of the will shows that the testator intended to, and did, charge each of his three farms with th$ share of each of his children, save the. particular one to whom a particular farm was devised. To hold that the annual rent as paid was a payment on the principal of the share of Lincoln Blackmore, would be to hold that the only interest he took by the will of his father in his father’s estate was the right to receive' one-tenth of the rent thereof until such rent equaled the value thereof fixed thereon by the will, while Charles Black-more would receive the same amount as rent and the Morgan farm at the end of such period. This construction would entirely destroy the equality contemplated by the will.

From a consideration* of all the parts of this will we are satisfied the will gives to Lincoln Blaqkmore the one equal tenth part of the value of the Morgan farm as fixed by the will; that he has a lien thereon to secure the payment of such share, and is entitled to receive for the use of such share the one-tenth part of “what the cash rent” thereof will be until such share is paid.

We find no error in this decree, and the same will therefore be affirmed. '

_ „ , Decree affirmed.