Wentworth v. Read , 61 Ill. App. 539 ( 1895 )

Mr. Justice Lacey

delivered the opinion op the Court.

The appellants appealed from a decree of partition, rendered in the Circuit Court, of certain real estate, owned by Charles G. Read in his lifetime, who, dying in 1887, left a will, in which he bequeathed to appellants certain legacies, to wit: To Mary Wentworth, five thousand dollars, to Henry B. Bead three thousand dollars.

The will did not make the legacies a charge on the real estate; and left it undisposed of except that he gave to his wife, in lieu of dower, a life interest in his realty, and at her death the above legacies were to be paid. The testator made no mention of the amount of his personalty or realty in his will. At the time of his death he had only about $100 in personal property; his wife had become deceased before the filing of this bill for partition. The appellants set up this will and these legacies, and some extrinsic facts, not appearing in the will, by way of plea to the bill, which they proposed to prove in connection with the will, and attempted to establish the fact by a construction of the will, that their legacies were liens on the realty claimed by the heirs of Bead.

The court set down the pleas for a hearing, and held that the appellants had no interest in the real estate; that by the terms of the will the legacies were not liens upon the real estate, and they having no interest in it, were not entitled to be made parties to the bill; and therefore their pleas were set aside, and their request to be made parties denied.

We are of the opinion that the court committed no error in regard to its ruling concerning appellants’ pleas. Where there is no latent ambiguity in the will, parol evidence is not admissible to show the intention of the testator, against the construction to be placed on the face of the will; and the state of the testator’s property can not be resorted to in explanation of the intention of the testator. There is no residuary clause in the will, and therefore it plainly appears that the testator intended his real estate to remain intestate, except as to the life estate created in favor of his wife. Hislop v. G-atton, Exr., 71 Ill. 528; Reed v. Corrigan, 143 Ill. 402.

The appellants also assign for error that the court failed to make the heirs of Olivia Bead, whom they claim have a half interest in the land, parties defendants to the suit. These appellants can not raise such objections, because they have no interest in the land and can not be heard to complain.

The court below rightfully ordered partition.

The decree of the Circuit Court is affirmed.