Wentworth v. Read

Mr. Justioe Carter delivered the opinion of the court: The only question presented by this appeal for our decision is, were the legacies by the will in question made a lien or charge upon the real estate of the testator? It is not claimed that the will, upon its face, either expressly or impliedly provides for such lien or charge, but it is insisted that the will should be read in the light of extrinsic facts and circumstances which existed when it was made and when it took effect and which were well known to the testator, and that when so read and considered the implication arises that the testator intended to charge these legacies upon his real estate. It is, however, well settled that' the intention of the testator must be determined by the will itself, and not from evidence aliunde. There is no latent ambiguity in the will requiring parol evidence to explain, and where the intention to make the legacies a charge upon the real estate is not expressed in the will or cannot be implied from the language used, we know of no rule of law which would authorize us to go outside of the will to look for proof of such intention. There is no residuary clause in the will, from the language of which it might appear that the residuum of the estate, after paying the legacies, was devised or bequeathed in a particular way, as in Reid v. Corrigan, 143 Ill. 402, where it was held that from the will itself, and not from extrinsic evidence, it appeared that it was the intention of the testator to charge the residuary estate with the payment of the legacies there in question. We cannot agree with appellants that that case supports their contention. We see no occasion for reviewing here the authorities on this question. It is well settled in this State, and the rule here held is stated in Heslop v. Gatton, 71 Ill. 528. As it does not concern appellants whether or not the decree correctly apportions the realty among the heirs-at-law, there is no reason why we should consider that question on their assignments of error. The judgment of the Appellate Court is affirmed. Judgment affirmed. Mr. Justice Cartwright took no part.