Dunshee v. Dunshee , 251 Ill. 405 ( 1911 )

Mr. Justice Hand

delivered the opinion of the court:

This was a bill in chancery filed in the circuit court of Carroll county by Sadie K. Dunshee against Charles Dunshee, John Dunshee, Hudson Dunshee, Frank S'. Dunshee, George W. Dunshee, Fdna Dunshee Mann, Mary Dunshee and Seib Dykstra, for the partition of a farm containing 307 acres, situated in Carroll county. The bill alleged that the complainant, Sadie K. Dunshee, was the owner in fee of the undivided one-half of said premises, subject to her homestead rights in said premises as widow of Robert Dunshee, who departed this life, testate, on March 2, 1910, and subject to the rights of Seib Dykstra in said premises as lessee; that Charles Dunshee was the owner in fee of the undivided one-sixth part of said premises; that John and Hudson Dunshee were each the owner in fee of the undivided one-twelfth part of said premises; that Frank S. Dunshee, George W. Dunshee and Edna Dunshee Mann were each the owner in fee of the undivided one-eighteenth part of said premises, subject to the homestead rights of complainant and the rights of Seib Dykstra as lessee, and that Mary Dunshee had no rights in said premises although she claimed to be the owner in fee of a part thereof. An answer was filed by the adult defendants, and a guardian ad litem was appointed for Mary Dunshee, who was a minor, and who filed an answer to- the bill by her guardian ad litem. Replications were filed and the case was tried without a reference, and a decree was entered in accordance with the prayer of the bill. Mary Dunshee, alone, by her guardian ad litem, prosecuted an appeal to this court.

It appears from the record that Robert Dunshee died seized in fee of said premises and other real estate, and was also possessed of a large amount of personal property, which was all disposed of by his will, the premises in question being devised to the complainant; that the complainant, Sadie K. Dunshee, is the widow of said Robert Dunshee; that he left him surviving no child or children, descendant or descendants of a child or children, or parent or parents; that Charles Dunshee is his brother, and John, Hudson, Frank S., George W. and Edna Dunshee Mann are his nephews and niece, and that Mary Dunshee is a grand-niece; that subsequent to the probate of the will of Robert Dunshee, and on the 8th day of August, 1910, the complainant, as widow, declined, in writing, in due form of law, to take under the will of Robert Dunshee and elected to take under the law.

The questions arising upon this record involve the consideration of the eleventh and thirteenth paragraphs of the will of Robert Dunshee, which read as follows:

“Eleventh — I give, devise and bequeath the following described lands .[other lands, describing them,] to the heirs of my brother Amasa, as follows, to-wit: To Frank S. Dunshee and his heirs an undivided one-third; to George W. Dunshee and his heirs an undivided one-third; to Edna Dunshee -Mann and her heirs an undivided one-third. I also devise and bequeath to the surviving heirs of my said brother Amasa Dunshee an undivided one-half interest in the cattle and hogs on said lands; provided that if either of the above named children should die without issue before my death the entire share of such child to go to the survivors, and if any should die childless such share to revert to the survivors, it being my intention that my entire estate shall descend to my own kin and no part thereof to go to the husbands or wives of my kin but all descend to heirs of my blood, except the property herein devised to my wife.

"Thirteenth — All the rest and residue of my estate, of every kind, nature and description and wherever situated, I give, devise and bequeath as follows: One-third to Charles Dunshee and his heirs; one-third, share and share alike, to the surviving heirs of Amasa T. Dunshee; one-third, share and share alike, to the surviving heirs of my brother Garrison Dunshee, to-wit, John and Hudson; meaning and intending that in no event shall the wives of either of my brothers inherit or become beneficiaries of any part of my estate. Should it become necessary, the testator authorizes his executor to make deeds, collect rents, and to manage my estate not herein specifically devised, and account to the county court.”

It is first contended by the appellant that upon the complainant, as widow, declining, to take under the will and electing to take under the law, the farm in question, which had been specifically devised to her, became intestate property, and that the appellant inherited her proportionate share thereof as one of the heirs-at-law of Robert Dunshee. On the contrary, (and the trial court so held,) the complainant contends that said premises passed to Charles, John, Hudson, Frank S., George W. Dunshee and Edna Dunshee Mann under the thirteenth paragraph of the will of Robert Dunshee. This court has held in a long line of cases that where the widow renounces the provision made for her by the will of her deceased husband and elects to take under the law, such renunciation does not have the effect to render any part of the estate of the deceased husband intestate estate. (McMurphy v. Boyles, 49 Ill. 110; Marvin v. Ledwith, 111 id. 144; ReQua v. Grahmn, 187 id. 67; Laurence v. Balch, 195 id. 626; Lewis v. Sedgwick, 223 id. 213.) In the Lewis case, on page 220, it was said: “This court has more than, once decided that the renunciation of a will by a widow does not make the remaining property left by the testator an intestate estate, — it is still testate property. It would lessen the quantity of the balance of the estate to the extent of the estate which the law gives the widow, but otherwise the property will pass by will.”

It is said, however, that all tire cases on the subject decided by this court are cases in which the property relinquished by the widow was personal property or an interest in real estate less than a fee, and it is urged that where the property relinquished is, as here, a fee in real estate, the doctrine of the cases heretofore decided by this court upon the subject ought not to apply, as, it is said, at the common law, which is in force in this State, a lapsed or void devise of real estate will go to the heir-at-law of the testator, notwithstanding the fact that the will contains a residuary clause, because a devise to a particular person or for a specific purpose is recognized as intended to be an exception from the gift to the residuary devisee. (English v. Cooper, 183 Ill. 203; Crerar v. Williams, 145 id. 625.) Without deciding whether the rule contended for by appellant would apply to a lapsed or void legacy under a residuary clause like the one in the will of Robert Dunshee, we think the rule contended for can have no application to the renunciation by a widow of a provision made for her in the will of her deceased husband, as a devise to a widow is not a lapsed or void legacy after she has relinquished under the will and elected to take under the law. The provision in the will in favor of Sadie K. Dunshee, the widow, in legal effect was no more than an offer on the part of the testator to purchase her statutory interest in his estate for the benefit of his estate, (Blatchford v. Newberry, 99 Ill. 11; Carper v. Crowl, 149 id. 465; ReQua v. Graham, supra;) and if she refused to accept the offer made her in the will and elected to take under the statute, she had her interest in his estate, under the statute, the same as if there were no will. And in this case, if the testator had not made the offer of purchase to his widow but had left her to her statutory rights and failed by the will to specifically dispose of the farm in question, clearly the farm would have passed to the devisees named in clause 13 of his will. We are unable to see any difference, in principle, in this case from the cases heretofore decided by this court upon this question, and are of the opinion that the renunciation of the widow did not have the effect to malee the premises in question intestate property, but think it clear said premises passed as testate property, under the thirteenth paragraph of the will, to the devisees named in that paragraph.

It is next contended, if it be held that the premises in question passed as testate property under the thirteenth paragraph of the will, that then and in such case the appellant took an undivided one-twenty-fourth part of said premises as one of “the surviving heirs of Amasa T. Dunshee.” Amasa T. Dunshee was a brother of the deceased, who died September 4, 1904, and left him surviving four children, viz., Frank S., George W., Edna and Vernon Dunshee. All of said children survived the testator with the exception of Vernon Dunshee, who died in the month of November, 1908, leaving him surviving as his sole heir-at-law the appellant, Mary Dunshee, who is now four years of age. By the thirteenth paragraph of the will one-third of the residuary estate is given “to the surviving heirs of Amasa T. Dunshee.” It is a well known rule of construction as applied to wills, that the entire will must be considered in determining the meaning of any particular part thereof, as one. provision of a will, when considered alone, might bear one construction, while if that provision were considered in connection with other provisions of the will it would bear an entirely different construction. In the eleventh paragraph of the will real estate other than that covered by the thirteenth paragraph was devised to the heirs of Amasa T. Dunshee, and the testator there named the heirs as Frank S., George W. and Edna Dunshee Mann, showing clearly that it was the living, children of Amasa T. Dunshee that the testator had in his mind when dispensing’ his bounty; and again in that paragraph, when the testator came to dispose of the personal property which was kept ppon the farm, which he had specifically devised to Frank S., George W. and Edna Dunshee Mann, he characterized the three children as “the surviving heirs of my brother Amasa T. Dunshee.” We think, when the two provisions of the will, — that is, paragraphs n and 13,— are read together, that the words used in the thirteenth paragraph, the “surviving heirs of Amasa T. Dunshee,” did not include, and were not intended by the testator to include, the grand-daughter/of his brother Amasa T. Dunshee, as it is a rule of construction that where words are used in one place in a will and the testator has clearly defined the sense in which he has used these words, if the same words are used again in the will the presumption is that the testator intended to use them, in each instance, in the same sense. The testator used the words “surviving, heirs” synonymously with the words “surviving children,” and there were only three surviving children of Amasa T. Dunshee at the date of the will and the date of the death of the testator. In Summers v. Smith, 127 Ill. 645, Griswold v. Hicks, 132 id. 494, Smith v. Kimbell, 153 id. 368, Fishback v. Joesting, 183 id. 463, and Gannon v. Peterson, 193 id. 372, it is held the word “heirs,” as used in a will, will be construed to mean “children” when that is the evident intention of the testator; and again, in Katies v. Bwert, 248 111. 612, that the word “heirs” is not always given a strict legal significance in the construction of wills, and if the word is used in such a way by a testator as clearly to indicate that it is intended to mean “children,” it will be given such meaning. It is also held where words in one part of a will have been given a definite and fixed meaning by the testator, the same meaning will be given to the same words used in a later clause of the' will, unless a contrary intention is expressed. (Lockhart v. Lockhart, 56 N. C. 205; Tomlinson v. Nickell, 24 W. Va. 148; Ireland v. Parmenter, 48 Mich. 631; State v. Ewing, 17 Ind. 68.) We think, therefore, the chancellor correctly ruled that the appellant, Mary Dunshee, took no interest in the premises sought to be partitioned.

Finding no reversible error in this record the decree of the circuit court will be affirmed.

Decree affirmed.