Lomax v. Shinn

Mr. Justice Wilkin delivered the opinion of the court: We entertain' no doubt that in the light of the parol evidence introduced upon the hearing, to the effect that the testator owned no other real estate than that mentioned in the will, the court below, by its decree, gave effect to his intention. At common law the language, “I give, bequeath and dispose of * * * to my beloved wife,” would confer upon her but a life estate. Under section 14, chapter 30, of our statute, (1 Starr & Curtis, p. 576,) it is sufficient to convey the fee simple title “if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.” The question therefore is, does the subsequent language of this will limit a less estate than a fee? Appellants insist that it does not, contending that the words, “the balance of my estate I will to my wife during her natural life save and except,” etc., have no reference to the lands previously devised, but to any other property which the testator might own. In determining the correctness of this position the controlling consideration must be, what was the intention of the testator, as gathered from all the language used in the instrument, together with the parol proof as to the nature and quantity of his property and the objects of his bounty. It is a familiar rule of construction that in ascertaining the intention of the maker of a will effect must be given to all of the language used, if it can be done. That is to say, if one construction will render a portion of the language used meaningless while a different one will give effect to all the language used, the latter must be adopted. It being true that the testator, at the time he wrote his will and at the time of his death, owned only the lots of land described in the first part of his will, the words “the balance of my estate,” if held to mean other and different property, would render meaningless all that part of the will which gives his wife a life estate and which makes a bequest to his nephews and nieces. The will was written by the testator himself, and, as will be seen from the foregoing copy, wholly regardless of the rules of punctuation. It seems to us, when the whole instrument is construed, that the language “balance of my estate,” was intended to mean what remained after taking out the personal property. The lands described, together with all the personal property, (and his claim on his father’s farm in Ohio,) constituted his entire estate. He first gives the land to his wife, without saying whether she is to have it for life or in fee. He then gives her the personalty absolutely, but subject to the payment of his debts and the obligation to Castle, which he says will be more than sufficient for that purpose. The “balance of my estate,”—that is, the remainder of all the property mentioned after deducting the personalty,—he wills to his wife for life, with the power to dispose of one-half thereof by will, and gives the other half to his nephews and nieces. The will, under the evidence, is to be construed as .though instead of saying “the balance of my estate,” it had been said “the real estate,” or “my real estate I will to my wife during her natural life,” etc. But counsel say the evidence introduced for the purpose of proving that Thomas B. Carroll owned no other real estate was incompetent, and, even if not so, failed to establish the fact. That the evidence was properly admitted is too well settled to be made the subject of contention. (1 Greenleaf on Evidence, sec. 287; Kaufman v. Breckinridge, 117 Ill. 305; Richardson v. Eveland, 126 id. 37.) We also think it does prove that he owned no other property. It is true it is not of that affirmative and positive character which would be required if the ownership of property were in issue, but for the purpose of aiding the court in putting a construction upon the language used by the testator it may properly be regarded as establishing the fact. It was certainly sufficient for that purpose in the absence of all affirmative proof of title or ownership in other lands. The decree of the circuit court will be affirmed. Decree affirmed.