Brown v. Castle

Mr. Justice Freeman

delivered the opinion of the court.

This decree cannot be sustained. The portion of her father’s estate left for the benefit of Hetty Matilda Castle never became her absolute property. The will provided that she should receive the income from it, but the principal was to be given to her only upon an express condition that she should outlive the term of the trust. Failing that condition and upon her death the share of the estate to which she would otherwise have become entitled reverted to and became “absolutely” the property of Hetty "Yail Wentworth (now Brown) free from condition or charge of any sort on account of Mrs. Castle. We can discover in the will no ground or excuse whatever for charging that share with debts or expenses incurred by or for the deceased, Hetty Matilda Castle.

The contention of appellee’s counsel is that there was an intention on the part of the testator, Henry Warren, to provide for the payment of the expenses of the last illness and funeral of his said daughter should she die before the'expiration of the trust. This contention seems to be based upon the fact that by a codicil to his will the testator, Henry Warren, provided that upon the death of his son Harry Warren, brother of Hetty Matilda Castle, the son’s share of the trust estate .should revert to a grandson of the testator, “after the payment of the necessary expenses of his sickness and his funeral expenses.” The argument is that the testator ought to have intended to make the same provision for liis said daughter, that hence he did so intend, .and hence such prestimed intention should be given effect, although no such intention is indicated by any language of the will. It is undoubtedly true that “where from the language used in the will itself the intent of the testator can be cleaHy conceived and is not contrary to some positive rule of law, it must prevail.” Olcott v. Tope, 213 Ill. 124-128, and cases there cited. But the doctrine here sought to be applied is at least novel. The proyision of the statute to the effect that the power of an executor before probate of a will shall extend to payment of necessary funeral charges out of the estate of the deceased (R. S., chap. 3, sec. 4,) can scarcely be seriously supposed to authorize an appropriation of property not belonging to the estate for such purpose.

The decree of the Circuit Court is reversed and the cause will be remanded to that court with directions to dismiss the bill.

Reversed and remanded with directions.