Boyd v. Broadwell , 19 Ill. App. 178 ( 1886 )

Congee, J.

The intention of the testator, as manifested by all the provisions of the will, must prevail. While it is the general rule “ that where the bequest is simply to A, and in case of his death, or if he die, to B, A, surviving the testator, takes absolutely,” yet very slight circumstances suffice to make these words refer to death at any period.

When it is considered that it was not the land or personalty of which the testator might die seized, but the proceeds, that Avas devised; that the conversion of the estate into money by the executors must necessarily take place after the death of the testator; that the language of the will is, “ In the event of the death of any one named above, then „the portion or share of the deceased to be paid to his or her offspring,” it seems reasonably clear that the vesting of the legacies Avas intended to take place at such time as the executors should be ready to pay over the proceeds. Jennings v. Jennings, 44 Ill. 488.

The bequest is not to Spencer Boyd, and in the event of his death then to his offspring, or to descend — pass to, go to, or any other of the many expressions commonly used to express inheritance or succession — but in the event of his death such portion is to le paid to his offspring. To be paid to them by Avhom? Evidently by the executors. This language, Ave think, admits of no other reasonable construction than to regard it as an express direction to the executors to pay to living persons who Avould receive such payment in their own right, and not as the repreleitatives of another. We hold, therefore, that Spencer Boyd’s interest was contingent upon his being alive to receive payment at the hands of the executors when the conversion should be completed, and he being dead when that period arrived, it was the .duty of the executors to pay his portion to his children. It is urged, however, by appellee, that the latter c’ause of the will does not apply to the portion of Spencer Boyd, but that the first clause alone- controls it, by which, in the event of his death, such portion is to be poaid to his widow. They are not in our opinion inconsistent, but -may be reconciled and effect given to both.

By the first clause, Spencer Boyd’s portion, in case he were dead at the date of the execution of the will, or should thereafter die, was to be piaid to his widow. By the second it is provided that “in the event of the death of any one named above, then the portion or share of the deceased to be paid to his or her offspring.” Who is meant by the expression “ any one named above”? We think it does no violence to the language of the will to say it includes the widow of Spencer Boyd as well as himself. - While she is not described by name, she is in fact as accurately identified by the description of his widow as though her name were given in full. This construction reconciles both clauses and gives emphasis to the prevailing idea in the testator’s mind, i. e., that his executors should themselves pay to Spencer Boyd, if living, if dead, to his widow; and in the event of the death of both, they should pay such portion to their offspring. We think the circuit court erred in holding that the administrator of Spencer Boyd was entitled to the money, and the decree of the circuit court will therefore be reversed, and the cause remanded with directions to the circuit court to enter a decree in favor of ap>pellants.

Reversed and remanded.