Smith v. Curry , 52 Ill. App. 227 ( 1893 )

Mr. Presiding Justice Boggs

delivered the opinion of the Court.

We can not assent to the view pressed upon us by counsel for the appellant, that the clauses of the will and of the codicil are in respect of the rights of these parties so irreconcilable and repugnant that both can not stand. “ Such a result should never be declared unless, after the application of all rules of construction, it is found that the difficulty is unsolved and the repugnancy invincible.” Dickenson v. Dickenson, 138 Ill. 541. The rejection of one clause of a will to uphold another is declared in Jenks v. Jackson, 125 Ill. 341, to be “ a desperate remedy, to be resorted to only in case of necessity.” And in the same case it is said : “ "While where two clauses are diametrically opposed to each other and are wholly irreconcilable, the latter must prevail, * * yet such later clause, if such construction can be fairly given it, should be deemed to affirm, not to contradict the earlier clause.” It is also a familiar rule that a clearly expressed intention, in one portion of a will, is not to be overcome by a doubtful construction of another portion of a will. Schouler on Wills, Sec. 208-487; Covenhoven v. Schuler, 2 Paige, 122. The intent of the testator in the case at bar to bequeath $1,000 of his personal estate to the appellee is not only clearly and unequivocally expressed in the second clause of what may, for convenience’ sake, be called the original will, but the inference that the testator desired to give such legacy a priority and preference over all other gifts and bequests inevitably arises from the words used in and the context of said second clause. The bequest, the second clause directs, shall be paid to the appellee in good and lawful money, out of the personal estate, as the first disbursement after the payment of debts, etc., and after such payment the residue and remainder of the estate is bequeathed to the wife, Sarah, during her natural life. In the testator’s mind this legacy had preference over the provision made for the wife, for whom it is manifest that he entertained full husbandly affection. Aside from bequeathing this legacy to Curry, he invests his wife with full ownership and control of the remainder of his estate of every nature and kind during her life.

The desire and intention to give the legacy to the appellee so clearly expressed ought to be carried into execution unless the codicil unequivocally evinces that the mind of the testator has undergone a change and that he made other provisions for the disposition of his estate, entirely inconsistent with and repugnant to his former intention. We do not think there is any necessity for resorting to the “ desperate remedy ” of rejecting the clause giving the legacy to the appellee. The conflict between the provisions of the codicil and of the will are, we think, apparent only and arise out of a doubtful and strained construction of the terms of the codicil.

The second clause of the original will, as it is called, bequeaths $1,000 out of the personalty to the appellee and the remainder to Sarah, the wife, for life. The third clause devises the real estate to Sarah for life. The fourth clause deals with the property which may, at the death of the wife, remain undisposed of by her, and directs that it be sold and the proceeds divided equally between six nephews of the testator whose names are given.

The codicil in its first clause affects and purports to affect only property given the wife for life by the original will and by her undisposed of during her lifetime, and in its second clause deals with a remainder of the personal estate of the deceased. The word “ remainder,” as applied to real property, has a technical legal meaning, and while, strictly speaking, there can not be a remainder in personalty, yet for the purpose of convenience of expression an interest in personalty to take effect after the determination of a prior life estate created by the same instrument is frequently designated a remainder, and in construing a will the word may, with propriety, be given a technical legal meaning, or its meaning in popular and common use, as may seem to best accord with the intent of the testator as gathered from the will as an entirety.

We think'this word “remainder” was used by the testator in its popular sense, and was intended to designate such of his property as should remain after a portion of it had been applied to other purposes according to the direction of the will; a balance remaining after á portion had been otherwise appropriated. The will first directs payments of the debts and funeral expenses of the testator and the cost of a tombstone. A balance or remainder of the personal estate would remain after such expenditures, but no one would contend that it was this balance or remainder that the testator intended to give the appellant, for that would leave the wife and Lillie Crawford as well as the appellee, wholly unprovided for. The desire of the husband to provide liberally for the wife is so manifest and natural, and the special provisions for Lillie Crawford so clear, as to render a conclusion that he intended to exclude them in favor of this appellant preposterous and absurd. After providing for the payment of his debts, funeral expenses and cost of a tombstone the testator bequeaths the legacy to the appellee and directs that the same be paid in good and lawful money out of his estate, and thus a second remainder or balance is created. This balance or remainder is, however, given to the wife; and when the whole will is considered together, it would be in unjustifiable defiance of the unmistakable intention of the testator to hold that he intended by the clause in the codicil in question to exclude the ivife and vest the balance of his property after the payment of the legacy to Curry in the appellee. He had no such thought. He intended that his wife should have for life all his personalty after his debts, funeral expenses and the legacy to Curry had been paid. At the death of his wife the balance or remainder of the property not used by her was to be disposed of. This is the remainder the ■ codicil refers to and makes disposition of, and it was intended by the codicil to change and affect only the fourth clause of the original will. This construction seems to us the only reasonable one. It harmonizes all apparent inconsistencies and carries into execution the manifest wish of the maker.

If the testator designed the use of the word remainder in its technical sense the construction we have given the will would be as well sustained as if the popular meaning of the word be adopted.

In such sense the word remainder would apply only to an interest in personalty remaining at the expiration of a prior life estate created by the will. The only such life interest is that of the wife, and it included only such of testator’s personalty as should remain after the payment of the legacy to Curry. The remainder could not include more. In any view that may be taken the judgment of the court was right and must be and is affirmed.