Phayer v. Kennedy

Mr. Justice Boggs delivered the opinion of the court: The contention of the appellant is, the second clause of the will devised to her mother, Ellen McKenzie, a remainder in fee, and that such remainder vested in said Ellen at once upon the death of the testator, and from this premise it is argued the subsequent provisions of the will cannot avail to limit her title or vest it in another. But it is our view the devise to Ellen was a contingent, not a vested, remainder. The fundamental rule in construing a will is to ascertain the intention of the testator. This is to be gathered from full consideration of the whole will,—its scope and plan and its various provisions,— all of which are to be given full and just operation, unless incurable repugnancy is found or some principles of public policy or legal rule of property contravened. (Taubenhan v. Dunz, 125 Ill. 524; Dickison v. Dickison, 138 id. 541; Young v. Harkleroad, 166 id. 318.) The intention of the testator in the case at bar is unmistakable. The general scope and plan of his will cannot be deemed at all in doubt. It was, that'his other legal heirs should be excluded from sharing in his estate if his wife, Mary A., or his daughter, Ellen, survived him to enjoy it. If they both survived him, he intended his wife, Mary A., should enjoy the income of his estate for and during her natural life, and that if Ellen should survive his widow, he intended Ellen should succeed to the full and complete ownership of the property upon the death of his wife; if, however, Ellen did not survive him or did not survive Mary A., he desired to invest Mary A. with full title and ownership to the property. That such was his intention is beyond contention, when the whole will is consulted. But it is urged the second clause of the will vested a remainder in fee in Ellen, and it is argued the operation of well-settled legal rules forbids that effect should be given to subsequent repugnant provisions of the will. The supposed repugnancy arises from a forced and strained construction of the second clause, and entirely disappears when the will, in all its parts,—its whole scope and plan,— is considered. The second clause only-purports to invest Ellen with right or title “after the death of Mary A.” It is, however, urged, a proper construction in this respect only postpones the vesting of the right of possession until the death of the first taker, and that the title vested upon the death of the testator. The law favors the vesting of estates, and in view of such declared policy of the law rules of interpretation to advance it have been adopted; but courts have no artificial rule of construction, which will avail to declare a remainder absolute and vested, if it clearly appeared, from the language of the will, the testator intended it to be contingent. It is unmistakable from the third clause of the will the testator did not intend title to the remainder should vest absolutely in Ellen at his death, but that it should be contingent upon the event said Ellen should survive his wife, Mary A. The different provisions of- the will are entirely consistent if the words “after the death of my said wife,” in the second clause, are construed as we have indicated, and such construction gives full operation to the will in all of its parts. “The intention of the maker, clearly and unmistakably manifested in one portion of a will, is not to be overcome or thwarted by doubtful and forced construction of another portion of the instrument.” (Schouler on Wills, sec. 208.) Ellen died before the wife. The contingency upon which the investiture of title in Ellen depended did not occur, hence it did not vest. Upon the death of Ellen the title to the remainder vested in Mary A., according to the provisions of the third clause of the will. The order of the county court empowering her administrator to sell the property to create a fund wherewith to pay her debts was correct, and is affirmed. Order affirmed.