Decker v. Decker (121 Ill. 341, 1887)

Mr. Justice Shops

delivered the opinion of the Court:

This writ of error brings before us for review a decree of the circuit court of Cass county, giving' construction to the last will and testament of John Decker, late of Cass county, deceased. The testator, at the time of his death, left Oliver Decker, a son, and Bosina and Homer Decker, two minor grand-children, his only lineal descendants, and devisees under the will. Oliver was of full qge, and is made executor of the will. The estate of the deceased, at the time of his death, consisted of a number of tracts of land, and something over $8000 in personal property, consisting chiefly of $368.70 cash, and $7592.75 loaned money. Besides this, there were various articles of household furniture, and other articles of but little value, the whole of which were perhaps worth but little, if anything, over $100. The condition of the estate at the time the will was made, was about the same that it was at the time of the testator’s death, the only difference being, the amount of loans was somewhat increased by the accumulations of interest.

As questions are raised on the argument upon all the clauses of the will, it can be considered more conveniently by setting the instrument out in extenso. Omitting the formal parts at the beginning and conclusion, it is as follows:

“First—After the payment of funeral expenses and just •debts, I give, devise and bequeath to my son, Oliver Decker, a part of my real estate, to-wit: The south-east quarter of the south-east quarter of section 19, and the west half of the north-east quarter of section 29; also, twenty acres off the west half of the north-east quarter of the north-east quarter •of section 33,—all in township 18 north, range 11, west of the third principal meridian,

“Second—My grand-daughter, Eosina Decker, shall have the west half of the north-east quarter of section 28, thirty acres •off the east half of the north-west quarter of section 28, thirty .acres off the east half of the north-east quarter of section 29, thirty acres off the north-east quarter of the south-east quarter of section 28, all in same town and range,—the last mentioned lot to contain forty acres, more or less,—and west half, north-west quarter, of section 28, same town and range.

“Third—That the following property be equally divided between my son, Oliver Decker, and my grand-daughter, Eosina Decker: The north-east quarter of the north-east quarter of section 27, and sixteen acres off the north side of the north-west quarter of the north-east quarter of section 27, and twenty-two acres, part of the north-west quarter of the north■east quarter of section 27, township 18, range 10, which lies south of sixteen acres off the north side of said north-west quarter of the north-east quarter of said section 27, and the north end of the south-west quarter of the north-east quarter ■of section 27, containing twenty-six and one-half acres.

“Fourth—My grand-son, Homer Decker, shall have all my real .estate remaining and belonging to me, after taking therefrom the real estate bequeathed to my son, Oliver Decker, and grand-daughter, Eosina Decker.

“Fifth—If there is any money remaining after my death, it shall be equally divided between Eosina Decker and Homer Decker. ”

As the most important question, and the one about which we have had the greatest difficulty in arriving at a satisfactory conclusion, arises on the construction of the fifth clause, that clause will be considered first.

The difficulty consists in determining what the testator intended by the expression, “any money remaining after my • death.” It is clear enough that whatever was intended to be ■ embraced within that description, was to be divided between the two grand-children. Plaintiff in error contends that the testator intended by it to include the amount of actual cash in his possession at the time of his death, and nothing more. Defendant in error, on the contrary, maintains, that by the •expression in question, the testator intended to include, not particularly the amount oí cash on hand at the time of his ■ death, but the residue of his entire personal estate after the payment of all debts and funeral expenses. The general .rule undoubtedly is, that a simple bequest of money, in the ■absence of anything in the context to show that the word ‘“money ” is used out of its ordinary or popular signification, •will not include personal estate in general, but will be con■'fined to money strictly so called. • (2 Williams on Executors, *1190.) On the other hand, it is equally clear that the word “money” or “moneys” is often employed in making testamentary disposition under circumstances hardly distinguish.■able from the present, in the general sense of property or ■personal estate. When the term is thus used, it most generally has reference to the residuum of the personal estate after ■certain charges upon it have been satisfied, such as the payment of funeral expenses and the like, as is claimed to be the ■case here. Moreover, an examination of the cases will show, -that generally, where this construction has been adopted, the ■contrary view would have resulted in leaving a portion of the testator’s estate undisposed of by the will,—a view which courts are always disinclined to adopt, on the ground that it is contrary to the presumed intention of the testator. Such would be the case here if the word “money, ” as it occurs in the fifth clause of the will, is to be restricted to cash in the-actual possession of the testator at the time of his death. After a careful consideration of the entire will, in the light, of the authorities bearing upon the question, we are satisfied that both of the circumstances mentioned as having a. controlling influence with the courts in construing the word, “money” in its enlarged or extended sense, are present in this case, and therefore demand that construction. That the-construction contended for by the plaintiff in error would result in making the great bulk of the personal estate intestate-property, is manifest. That the term “money, ” in the connection used,, was intended to express the residuum of the personal estate after the payment of all debts and funeral expenses, is strongly fortified by the implication arising from the use of the qualifying word “remaining, ” is equally clear.

This conclusion, however, is sought to be overcome by what we regard as a very strained and unnatural construction of the first clause of the will. The claim is, that the payment of the debts and funeral expenses is, by the introductory words of the will, made an express charge upon the real estate, to the exclusion of the personal estate. We perceive nothing in the language relied on that warrants such a conclusion. The fact that the dispositions of the will, including both realty and personalty, are preceded by the formula, “after the payment of funeral expenses and just debts, I give,” etc., indicates, no purpose on the part of the testator to specially charge his-realty with such debts and expenses. The manifest intention, of the testator in using the language in question was, to make-all the bequests of the will, whether of personalty or realty,. ■ subject to the payment of his debts, leaving it to the law to-determine the order in which the real and personal assets should be liable. And since the law requires the personal assets to be exhausted before resort can be had to the realty, (a fact which we must presume the testator had in his mind at the time of drawing his will,) the reason is apparent why the final bequest in the fifth clause is preceded by the qualifying ■expression, “if there is any money remaining,” etc. We are unable to perceive anything to which the word “remaining, ” as it occurs in the fifth clause of the will, could refer, except the residue of the personal estate after the payment, of debts and funeral expenses; and hence we conclude,that the term “money, ” qualified as it is by the word “remaining, ” was used to signify such residue. And our conclusion in this respect is strongly fortified by the further consideration, that any other construction would lead, as we have already seen, to making the great bulk of the personal estate intestate qu'operty.

In addition to this, we think the use of the expression, “money remaining, ” instead of, “personal estate remaining, ” ■or some like expression, is sufficiently accounted for by the fact that the great bulk of the personal property consisted, as is commonly said, of loaned money. This was true both at the time of making his will and at the time of his death. It was in this peculiar sense he doubtless used the word “money, ” as it covered, appropriately enough, all his personal estate, except a few insignificant chattels. Moreover, we think this view of the question is fully sustained by the authorities. Redfield on Wills, 442; 2 Jarman on Wills, *768, et seq.; Higgins v. Dwen, 100 Ill. 554; Smith v. Smith, 17 Gratt. 268; Irwin v. Zane, 15 W. Va. 646.

The next question to be considered arises under the first ■clause of the will. By it there is given to plaintiff in error “twenty acres off the west half of the north-east quarter of the north-east quarter of section 33,” township 18 north, range 11, west of the third principal meridian.

The evidence shows that the testator never owned the north-east quarter of the north-east quarter of this section 33, or any part of it; but it also shows that he did own the north-west quarter of the north-east quarter of that section. So far as appears from the record, the only lands owned by the testator in section 33 was the north-west quarter of the; north-east quarter,—forty acres. No part of it was specifically devised or otherwise referred to in the will, and the same-would, therefore, pass, under the fourth clause of the will, to the residuary legatee, unless it shall appear to have been, devised to plaintiff in error, as is contended by his counsel,, under the first clause of the will above quoted.

There is said to exist a latent ambiguity, arising under the-evidence dehors the will; and that the provisions of the will, read in the light of this extrinsic evidence, sufficiently make it appear that the devise to plaintiff in error, under this first clause-of the will, was of a part of this north-west quarter of' the north-east quarter of said section 33. While the general, rule undoubtedly.is, that the intention of the testator is to be-gathered from an inspection and consideration of the will, and from no other source, in case of latent ambiguity courts-do and must listen to extrinsic evidence,—not for the purpose of contradicting or adding to the terms of the will, nor to wrest the words of the testator from their natural operation, but for the purpose of determining the existence or nonexistence of latent ambiguity, (for a latent ambiguity can only be shown by extrinsic evidence,) and for the further purpose-of enabling the court to look upon the will in the light of the facts and circumstances surrounding the testátor at the time-the will was made, whereby to determine the intention of the-testator. (Gilmer v. Stone, 120 U. S. 586.) “The law is not so unreasonable,” says Mr. Wigram, “as to deny to' the reader' of an instrument the same light which the writer enjoyed.”" Wigram on Wills, (2d Am. ed.) 161. See, also, Brearley v. Brearley, 1 Stockt. Ch. 21; Perry v. Hunter, 2 R. I. 80.

It is further to be observed, that as a latent ambiguity is-only disclosed by extrinsic evidence, it follows, that if removable at all, it may be removed by extrinsic evidence. (Patch v. White, 117 U. S. 210.) Mr. Bedfield, in his w'ork on Wills,. (volume 1, page 584,) lays down the rule, that where the description of the object or subject of a devise is erroneous and mistaken, extrinsic evidence is admitted to aid the construction, by showing to whom or to what the testator must have referred.

Latent ambiguities, as found by Chief Justice Tindal, in Miller v. Travers, 8 Bing. 244, and which might be explained by parol, fall into two classes: First, where the description of the devisee or subject matter of devise is clear on the face of the will, but on inquiry it is found that the words describe two or more persons or things with equal accuracy, so, unless it can be shown, by extrinsic evidence, to w'hich the testator intended his words to apply, the devise must fail for uncertainty; and second, where the description of the devise or of the devisee is correct in part and in part incorrect, as, where devisee’s name is correctly given, but his residence, or some other circumstance descriptive of the person or thing, is incorrect. And the modern state of the law upon this subject is well illustrated in the recent opinion of the Supreme Court of the United States, w'herein Mr. Justice Bradley, speaking for the court, said: “It is settled doctrine, that * * * such an ambiguity may arise upon a will, either when it names a person as the object of the gift, or a thing as the subject of it, and there are two persons or things that answer such name or description; or secondly, it may arise when the will contains a misdescription of the object or subject, as, where there is no such person or thing in existence, ,or, if in existence, the person is not the one intended, or the thing does not belong to the testator. The first kind of ambiguity, where there are two persons or things equally answering the description, may be removed by any evidence that will have that effect,—either circumstances, or declarations of the testator. (1 Jarman on Wills, 370; Hawkins on Wills, 9,10.) Where it consists of a misdescription, as before stated, if the misdescription can be struck out, and enough remain in the will to identify the person or thing, the court, will deal with it in that way; or, if it is an obvious mistake, will read it as if corrected. ” Patch v. White, 117 U. S. 210.

Tested by these principles, it is very clear, that in the devise under consideration there is a latent ambiguity. On the face of the will the subject matter of the devise is clear, but on inquiry it is -found that the descriptive words of the devis.e are, in part, false,—the parcel of land appearing to be devised did not > belong to the testator. If, then, we may strike out of the description of the premises appearing to be devised, so much as is false, and enough remain in the will, interpreted in the light of surrounding circumstances at the time the will was made, to identify the premises devised, this case will fall within the class of eases of which Patch v. White, supra, Allen v. Lyons, 2 Washb. C. C. 472, Winkley v. Kaime, 32 N. H. 268, Riggs v. Myers, 20 Mo. 299, Orphan Asylum v. Emmons, 3 Bradf. 144, Townsend v. Downer, 23 Vt. 225, Doe v. Roe, 1 Wend. 541, Mann v. Mann, 1 Johns. Ch. 234, Woods v. Moore, 4 Sandf. 579, and Emmert v. Hays, 89 Ill. 12, are examples as to the subject devised; and Gilmer v. Stone, supra, Vernon v. Henry, 3 Watts, 385, In re Gregory, 34 Beav. 600, and Button v. Tract Society, 23 Vt. 336, are examples as to the object of devise.

As indicative of the extent to which these principles have been carried by courts of the highest respectability, and as showing the current of authority, we select a few examples of their application. In Patch v. White, the testator said, “and touching my worldly estate, I give, devise and dispose of the same in the following manner. ” He devised specific lots to near relatives, and, among others, to his brother “lot numbered 6, in square 403.” He then gave to his son “the balance of my real estate, believed to be and consist of” certain named lots, but not mentioning lot 3, in square 406. And it was held that the testator intended to dispose of all his real estate, and thought he had done so; that in the devise to his brother he believed he was giving his brother one of the lots he owned; that evidence might properly be received to show that the testator did not, and never did, own lot 6, in square 403, but did own lot 3, in square 406, and that the evidence, in connection with the context of the will, sufficiently showed an •error in description, and that the lot really devised was lot 3, in square 406. Allen v. Lyon was a devise of a house and lot in Fourth street, Philadelphia, in the occupation of E. H. It appeared from the evidence that the testator did not own a house and lot in Fourth street, but did own a house and lot in Third street occupied by E. H., and it was held that the latter property passed under the will. Winkley v. Kaime was •a devise of thirty-six acres of lot 37, in the second division in Barnstead, being the same testator purchased from J. P., and the evidence showed there was no such lot in the second division in that town, but that testator owned a part of lot 97 in that division, purchased from J. P. Held, that the part of lot 97 owned by testator, passed under the will. In Orphan Asylum v. Emmons, the testatrix devised her shares of the Mechanic’s Bank stock. She had no bank stock except shares •of the City Bank. Held, that the word “Mechanic’s” must be rejected as inapplicable to any property owned by testatrix, and the rejection of the word left the bequest to operate upon any bank stock possessed by her, and so passed the City Bank •shares. And in Riggs v. Myers, the devise was of the southeast and south-west quarters of section 4, town 60, range 38, devisee of the south-west quarter to have access to the Big Spring. Parol evidence was heard showing the testator never •owned any land in section 4, town 60, range 38, but did own the south-east and south-west quarters of section 4, town 59, range 38, the south-west quarter of which was accessible to a big spring, and it was held that the latter quarter sections passed under the will.

And as to the identity of the object of the devise, the following may be taken as examples : Gilmer v. Stone.—Here the bequest was of the testator’s residuary estate, “to be equally divided between the Board of Foreign and the Board of Home Missions.” The evidence showed several religious denominations, including the Presbyterians, had boards of home and foreign missions; that the testator was an elder-in a Presbyterian church, and had, in his lifetime, always sent his contributions for home and foreign missions to the Presbyterian boards, and had contributed nothing to the mission boards of other denominations; and it was held, that this evidence, in connection with other bequests in the will made to the Presbyterian church, showed that the Presbyterian hoards of home and foreign missions were the ones, intended, and entitled to receive the bequest. And in Vernon v. Henry, a legacy was given to James Vernon Henry, described as a nephew of the testator, and son of the testator’s deceased sister, Elizabeth. The legacy was claimed by James-Vernon Henry, a