Estate of Hubbard v. Hubbard

Mr. Justice Waterman

delivered the opinion of the court.

Evidence as to the circumstances of the testator at the making of the will was properly admitted, but testimony as to his declarations concerning his intentions and in what manner he wished to dispose of his property should not have been received. Lurie v. Radnitzer, 166 Ill. 609, 618; Hawhe v. Chicago & Western Indiana Ry. Co., 165 Ill. 561.

Whenever a condition is presented calling for the construction of a will, the polar star of direction is the intention of the testator. Effect is, if possible, to be given to the entire will, and the provisions of a codicil are to be so construed as to harmonize with the body of the will, if this can be fairly done.. 1 Eedfield on Wills, 4th Ed., 352, 363, paragraphs 13 and 34; 3d Am. and Eng. Encv. of Law, 294; 6tli Am. and Eng. Encv. of Law, 2d Ed., 183.

It is urged that there was no cancellation of the bequest of $23,000 once written in the instrument and afterward erased.

The case of Wolf v. Ballinger, 62 Ill. 368, to which our attention is called, is to the effect, only, that the erasure from a will by the testator, of the name of a devisee, and the interlineation of another name as a substitute, will not produce any change in the will as originally written; for the reason that a new devisee, the bequeathing of property to a party, can not be made save by an instrument witnessed as provided by statute; consequently, there not having been an "acknowledgment of the bequest to the substituted party, such as the law requires, the contemplated devise to the new party fails, and the erasure is disregarded, because the intent manifested by the testator was to change the direction of his gift and not to have it fail or become undevised estate. In Lurie v. Badnitzer, 166 Ill. 609, where a bequest in a will had been erased by the testator by the drawing of lines across the words comprising the devise the Supreme Court said:

“It must be conceded that the erased clauses are no more a part of the will than if they had been so completely erased that they could not be read or had never been inserted in the draft for such will.”

The rule, generally, is that the entire -Will, or any provision therein, may be revoked by cancellation or obliteration as well as' by tearing or burning. 29th Am. & Eng Encv. of Law, 276; Bedfield on Wills, Yol. 1, 807, paragraphs 8, 9, 10; Bigelow v. Gillott, 123 Mass. 122.

In the present case, the will remaining in the custody of the testator and no question of alteration by another arising, if the erased lines had been so obliterated that no word of them could be read, it would hardly be contended that the remaining portions were of no effect; yet the intent to revoke the erased devise would be no more clear than it is now.

As is said in Thonlinson’s Estate, 133 Penn. St. 245: How can we say that the testator did not intend to cancel this devise of $23,000, when as a matter of fact he did?

In the present case there is no claim that the erasure was made by any one save the testator.

It- is perhaps unnecessary to discuss the motives actuating the testator in making the erasure. Seemingly it worked no very material change unless the money in his box at the safety vaults was less than $23,000 plus $8,000 plus $10, plus the amount of funeral expenses and debts.

It may be that the testator, as time ran on, feared that this would be the case; and wishing to give his mother $8,000, changed his will so that the residuum only of the money at the deposit company should go to his wife.

The evidence as to a gift inter vivos of $20,000 to Mrs. Hubbard is not sufficient to establish it.

The decree of the Circuit Court is affirmed.