Hubbard v. Hubbard , 198 Ill. 621 ( 1902 )

Mr. Justice Hand

delivered the opinion of the court:

There are but two objections urged by appellant to the decree.of the circuit court: First, that the court erred in holding that the.provision of the will bequeathing a specific sum of money to the appellant was revoked by drawing ink lines through said provision; second, that the court erred in not construing the codicil to be a revocation of the bequest of $8000 to Margaret Hubbard.

First — The circuit court found that the codicil was executed after the bequest of money to appellant had been erased. The evidence was heard in open court, and on this point was conflicting, and the chancellor having seen the witnesses and heard them testify, and having had an opportunity of observing their demeanor while upon the witness stand, is in a better position than we to judge as to the weight that should be given to their testimony* and in whose favor it preponderates, and this court will-not reverse as to a finding of fact unless the error appears to be clear and palpable. (Fabrice v. Von der Brelie, 190 Ill. 460.) The publication of the codicil was a republication of the will in the form it was at the time of the execution of the codicil, and proof of the execution of the codicil established the will. Duncan v. Duncan, 23 Ill. 364; Fry v. Morrison, 159 id. 244.

Second — Appellant insists that a fair construction of the codicil shows that the testator intended thereby to revoke the bequest of $8000 to his mother.. In this contention we cannot agree w-ith appellant. Considering the instrument presented for probate as an entirety- and construing the will and codicil together, as we must, (Fry v. Morrison, supra,) it is clear that no revocation of that provision was intended by the testator. By the first clause the testator disposes of the farm occupied by himself and wife as a homestead; by the second he gives his wife his life insurance; by the third he gives to his mother §8000, to be paid within sixty days after his death, from “the money now in my safety Box in the National Safety Co. Vaults Chicago.” By the first clause of the codicil he gives his sister ten dollars, to be paid within the same time and from the" same fund as the bequest to his mother, and by the last clause of the codicil he gives “all money left” of the fund in the safety deposit box to his wife, subject to the payment of his funeral expenses and just debts. How the testator could have expressed his intention plainer we do not see. Each of the sections bequeathing money refers to the same fund. It appears that at the time the will was drawn there was §30,000 in the box, all of which had been-drawn out by the appellant upon the order of the testator, except §10,-531.40, at the time of his death. The testator knew that after paying the §8000 to his mother and the ten dollars to his sister there would be a balance remaining in the box, the exact amount of which he could not tell. There is no necessity in this case of reversing the relative order of devises or bequests or transposing the different provisions of the will to render them consistent and give effect to each, as might be done to prevent a revocation by implication. (Dickison v. Dickison, 138 Ill. 541.) The arrangement is logical and orderly, and the intention is clear that what was left in the deposit box after the deduction of the bequests to his mother and sister was what the testator wished the appellant to have. Any other construction is forced, and not within the intention of the testator as expressed by the will.

Finding no error in this record, the judgment of the Appellate Court affirming the decree of the circuit court will be affirmed.

Judgment affirmed.