Worrell v. Patten

Mr. Justice Walker

delivered the opinion of the Court:

It is claimed that this case falls within the rule announced in Kurtz v. Hibner, 55 Ill. 514, that parol evidence will not be received to alter or change a will, or even to correct a mistake in its provisions. A careful examination of this record will show that this case stands on entirely different-grounds j that the rules there announced have no application here ; that there were mistakes in the description of several tracts of land attempted to be devised, is not only proved but is admitted; that some of the lands intended to be devised were not described, but in several cases other and different lands were named. The lltli clause of the will, under which the parties claim as devisees of William Patten, is this:

“I hereby give and bequeath to my said wife, Jane Patten, all the rest and residue of my estate remaining at the time of my decease, real, personal and mixed, of every' name and nature whatsoever, provided that the farming utensils remaining at the time of my decease, I hereby give and bequeath to my said son, James A. Patten, together with all the wagons and harness, except one lumber wagon and one set of' double harness suitable to be used therewith, and one double family carriage and suitable harness to be used therewith.”

Under this clause, it is manifest that Mrs. Patten took all real estate which rvas so defectively described as not to pass to the intended devisees. She took, under the will, the residue of the real estate not devised, and where, by mistake or otherwise, any land was not devised to other persons, she took a fee simple in such lands. And when there was such a misdescription of any of the lands attempted to be given to other persons as not to pass by the will, such property remained unaffected by such clauses, and became and was a part of the residue of the real estate devised to this widow of the testator, and she holds the same instead of the persons to whom the testator designed them to pass by the will.

The bill shows that Jane Patten, the widow of testator, and the residuary legatee and devisee, is one of the complainants, and prays for the correction of the will, so as to conform to the intention of the testator She in nowise complains of the decree, nor can she, as it is in conformity to the prayer of her bill. She being the owner of the land misdescribed and intended, as she claims, to have been given to others as devisees, she, alone, is deprived by the decree of any right by its terms. She, as such owner, held it absolutely free from all claim from any of the heirs of the testator. She could have sold and conveyed it to whom she chose. She could have rectified, by conveyance, all of the mistakes she asked to have corrected by the decree, and thus have rendered this proceeding unnecessary. But having chosen to institute this suit, and the court having granted the relief she asked, the decree is as effectual as if she had made the correction by conveyance.

Had the court below heard no evidence, the decree would have been rendered on her request. The property was hers, and at her absolute disposal, and that right was in nowise enlarged or affected by the evidence heard on the trial. It was entirely useless, and affected the rights of no one. In fact, the remedy was completely in her own hands, and the aid of the court, with or without evidence, was not required to enable her to dispose of her own property according to her own pleasure.

The minor heirs and devisees had no interest whatever in the lands that passed to Mrs. Patten as residuary devisee. The decree deprives them of no right, but leaves their interest wholly unimpaired. Nor has any of the heirs a right to complain if Mrs. Patten chose to strictly carry out the intention of her husband in disposing of his property, instead of holding it herself, or giving it to others. She has deprived them of no legal or equitable right. No one can complain of her disposing of her OAvn property as she chose. We are not willing to hold that plaintiffs in error may control the residuary devisee in disposing of her property as she thinks proper.

No error is perceived in the decree, and it must be affirmed.

Decree affirmed.