Clark v. Todd , 310 Ill. 361 ( 1923 )

Mr. Justice Carter,

dissenting:

I do not agree with the reasoning or the conclusion in the foregoing opinion. The original will gave testatrix’s property to her husband for life, with power to sell and repurchase or account to the “heirs-at-law” for the proceeds, “with remainder over, at the death of said husband, to my heirs-at-law.” There is no further wording in the original will to throw light on the testatrix’s meaning as to the quoted phrases, and there was apparently no need for further interpretation, as her nearest kin were,two sisters and a brother and there was no inequality of groups. Subsequent to the making of that will, however, the brother and sisters died, one leaving one child, another leaving four children and another leaving eight, and there was also a descendant of a deceased child of one of the sisters, so that an entirely new condition existed when she made her first codicil, twenty-two years after the will was executed. Instead of there being a husband, brother and two sisters, there were now the husband and an unequal number of nephews and nieces and a grand-nephew as children or descendants of the brother and sisters, so that when she drafted the codicil to meet the new condition she knew that the nephews and nieces and the grand-nephew were, or would be, her “heirs-at-law” if surviving, and that the same term could be applicable and express her wishes in the codicil without rewriting the will, (the substance of much of which she wished to retain,) if she explained how her “heirs-at-law” were to be ascertained and considered. She was especially desirous that Charles E. Pratt, a nephew, and William Atkinson, a grand-nephew, should take nothing. But this was not the sole end of clause 1 of the first codicil, for, as the majority opinion holds and as contended by the appellee, a single sentence could have made that intention clear; and this would be true whether the desire was to classify the heirs per stirpes or have them take per capita. But she desired to explain that she meant more than simply the elimination of these two persons as if they had never been born. She wishes to show how such elimination shall affect those remaining, and in so doing it will be shown hów the others are to take the legacies provided for them. She made no reference to heirs, as a class, in the first will, because there was no inequality of groups, but at the time the first codicil was executed there was inequality of groups and need for “ascertainment of heirs-at-law,” for the purpose, first, of excluding a nephew and grand-nephew; and second, that to further express her meaning as to her heirs-at-law, “the class ‘my heirs-at-law,’ as used in my said last will and testament, shall be made up and constituted of those persons who would be such ‘heirs-at-law’ according to the laws” of two different States, so that the two should be excluded as if she had named them all individually, and the elimination of the two as individuals would have the effect of leaving those that remain as individuals, for, as stated in the illustration, “if my said heirs-at-law, including said Pratt and Atkinson, should be ten in number, by such omission of the said Pratt and Atkinson there shall be but eight of my said ‘heirs-at-law’ to take as my said residuary legatees.” This wording indicates clearly that the testatrix wished to show the effect of the elimination upon those remaining, and it was just as clearly stated or illustrated that those that remained were to be treated as individuals as that those excluded were excluded as individuals rather than as representatives of the different groups. If it was not the intention to explain the effect of the exclusion of the two persons and the number of those remaining to take, on the basis above indicated, then the only other effect of such explanation and illustration is merely to state that if two are excluded from a number such as ten, it shall have the effect of leaving eight. This is a mathematical computation so simple that no explanation or illustration is necessary to further clarify it. What is obvious needs no explanation.

Nine years after making the first codicil, when the husband had died, the testatrix wished the proceeds of property which had been owned by him restored to the “Yeazell heirs” and have it distributed per stirpes, and it was there shown that the person who drew the codicil knew what language to use so as to clearly convey that intention. I think, taking the will as a whole and giving to the words used in the first codicil a logical meaning, that it is possible to determine what the testatrix intended. As stated in Welch v. Wheelock, 242 Ill. 380, on page 385: “Cases on wills may guide us to general rules of construction, but unless a case cited be in every respect directly in point and agree in every circumstance it will have little or no weight with the courts, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.” While it is necessary to refer to various authorities and the rules of law therein laid down, it is particularly necessary in this case to bear in mind the principle stated in this quotation from Welch v. Wheelock in applying these various authorities. In 28 R. C. L. the author in section 242, page 267, lays down the following rules of construction that should be followed in construing wills: “A devise to named individuals * * * requires a per capita distribution. A devise to a class, such as ‘all my nephews,’ and the like, likewise calls for a per capita distribution. The addition of the words ‘equally,’ or ‘share and share alike,’ tends to strengthen this conclusion. Where the word ‘heirs’ is used in the will as one of description and purchase, it must be divided per capita.” These same rules are practically approved in 40 Cyc. 1490, and 2 Jarman on Wills, (6th Am. ed.) chap. 30, sec. 12.

It has been held by this court that a will, if possible, should be so construed as to give it effect without reference to the statute of descents and distributions, since the testator or testatrix has in this respect full and ample authority to direct the distribution of his or her property as he or she desires. (Richards v. Miller, 62 Ill. 417; Pitney v. Brown, 44 id. 363 ; Page on Wills, — 1901 ed.— sec. 554.) Where the will by explanation and illustration, as contained in the first codicil, is susceptible of a reasonable and logical interpretation, the court, in my judgment, should attempt to carry out that intention, even if it results in a per capita distribution.