Wimbush v. Wimbush , 253 Ill. 407 ( 1912 )

Mr. Justice Hand

delivered the opinion of the court:

This was a bill in chancery filed in the circuit court of Marion county’ by Frank A. Wimbush, John H. Wimbush, Thomas Wimbush and Maud K. Linberg, the children of John )¥imbush, deceased, by his first wife, against Jane M. Wimbush, his widow, and Fannie J. Wimbush and Nelson R. Wimbush, his children by said Jane M. Wimbush, for a construction of the will of John Wimbush, deceased. Jane M. Wimbush and Fannie J. Wimbush filed an answer to the bill and Nelson R. Wimbush answered the bill by his guardian ad litem, and a replication was filed, and the court entered a decree, in which it was held that Jane M. Wimbush took title, to all of the lands of which John Wimbush died seized in the State of Illinois and of the personal property of which he was possessed, in trust, with the absolute power of sale, for the use of herself and the six children of said John Wimbush, deceased, in equal parts, with the exception of a bequest of $200 to each of said children. From that decree Jane M. Wimbush . and Fannie J. Wimbush have prosecuted an appeal to this court, and they contend in this court that Jane M. Wimbush took the entire estate in Illinois of said John Wimbush, deceased, absolutely, under the terms of his will, with the exception of the sum of $1200, which the will provided should be paid, in equal amounts, to each of the six children of said John Wimbush, deceased, and which bequests have been paid.

The will of John Wimbush, deceased, omitting the formal parts, reads as follows:

“To my wife, Jane M. Wimbush, I give, devise and bequeath all my property, estate and effects, real and personal or mixed, of whatsoever kind, character or description and wheresoever situated.

“I appoint my said wife, Jane M. Wimbush, my sole executrix herein, and I direct that as such she give no bond. I direct, as such trastee, the said wife, Jane M. Wimbush, while not re-married, give no bond for said trust estates of said minors born of marriage. I invest my said executrix, Jane M. Wimbush, as such and without bond, with full and absolute discretion, capacity, authority and power to sell, grant, convey and deliver, in such manner, on such terms and at such prices as said executrix may elect, all' or any part of my estate, real, personal or mixed, and to make perfect record title thereto and create perfect ownership thereof, all absolutely and forever, the same as I could do if living, and to collect and re-invest the proceeds thereof or any insurance thereon for the benefit of herself and said children named hereafter, Frank A. Wimbush, John H. Wimbush, Maud K. Rinberg, Thomas Wimbush, being children of my former wife, Julia A. Wimbush, who died July 29, A. D. 1886, also my children of my present wife and executrix of this will, (Jane M. Wimbush,) Fannie J. Wimbush and Nelson R. Wimbush, with the exception of an allowance of two hundred dollars ($200) which I bequeath to each of my children named hereafter, to be paid within two years after my death by my said wife and executrix, Jane M. Wimbush: Frank A. Wimbush, John H. Wimbush, Thomas Wimbush, Fannie' J. Wimbush, Nelson R. Wimbush and Maud K. Rinberg. The balance of my estate to be handled as above stated by my wife and executrix, Jane M. Wimbush. I hereby nominate my said wife, Jane M. Wimbush, the executrix of this my last will and testament, and I hereby request that she be not required to give bond for the faithful discharge of the trust hereby reposed in her as such executrix.”

It is clear from the first paragraph of the will of John Wimbush, deceased, hereinbefore set out, that Jane M. Wimbush would take the entire estate of John Wimbush, real, personal and mixed and wheresoever situated, if that paragraph of the will were not limited or controlled by the succeeding paragraph of the will. When, however, the two paragraphs are read together, it is clear Jane M. Wimbush is not given the entire estate but that she takes the same as trustee. The law is well settled that in construing a will all the provisions of the will must be taken into consideration. If, therefore,' the contention of the appellants be sustained and it be held that Jane M. Wimbush takes the entire estate, this well settled rule of construction must be disregarded, as to reach such conclusion the second paragraph of the will must be entirely eliminated from the will. We do not see why this should be done. We are of the opinion, when the entire will is read, that it is clear that it was the intention of the testator that Jane M. Wimbush should hold the testator’s land and personal property in trust for the benefit of herself and the six children of the testator, in equal parts, with the exception of the bequests to be paid to his children, and that Jane M. Wimbush should have the right to sell his estate, or any part thereof, for the benefit of herself and the testator’s children. To hold that the testator intended to give to Jane M. Wimbush his entire estate, with the exception of the six small bequests to his children, would be to eliminate the portions of the will which were clearly intended by the testator to impress a trust upon his estate, in the hands of Jane M. Wimbush.

We recognize the rule that when a testator by his will creates a fee, the fee will not be cut down to a lesser estate by a subsequent provision of the will unless the subsequent provision is clear and unambiguous. We think, however, if we give that rule its fullest force it is apparent from the reading of this will as a whole that the language of the subsequent paragraph of the will limits the estate created by the will and creates in Jane M. Wimbush a trust estate, and not an absolute fee. The second paragraph of the will is free from ambiguity and in construing the will it cannot be disregarded.

We are of the opinion, therefore, the circuit court properly construed the will of John Wimbush, deceased, and that the decree entered by that court should be affirmed.

Decree affirmed.