Blinn v. Gillett

Mr. Chief Justice Hand delivered the opinion of the court: The first question presented for consideration is, to whom did the $9345 received from the banks that had gone into voluntary liquidation belong upon the death of Lemira P. Gillett? The rule is fundamental that in construing a will the intention of the testator, if legal, should control, and to ascertain such intention the entire will should be considered in the light of all the circumstances surrounding the testator at the time the will was made. In Decker v. Decker, 121 Ill. 341, on page 354 the court said: “In every case calling for construction the question of first importance is, what was the testator’s intention.” And in Finlay v. King's Lessee, 3 Pet. 346: “The intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly perceived and is not contrary to some positive rule of law, it must prevail.” And in Johnson v. Askey 190 Ill. 58, on page 61: “The rule is well settled that in construing a will the intention of the testator must control, and to ascertain such intention the entire will should be considered in the light of all the circumstances surrounding the testator at the time the will was made.” If those paragraphs of the will of John D. Gillett which deal with the bank stock of the testator be read as a whole, it will appear clear, we think, that the testator intended his widow should have the absolute control of his bank stock, or the funds arising therefrom, during her lifetime, and that no interest therein should vest in his children or their descendants so long as the widow should live, and that the testator, upon the death of Lemira P. Gillett, intended that the principal of his bank stock, in whatever form it might be at that time,— that is, whether in stock, cash received from the sale of stock or cash received from banks that had gone into voluntary liquidation,—should be divided among his then surviving children and the descendants of deceased children. By paragraph 9 it is provided, if his wife survive him, for and during her natural life she shall have “all the use, interest, dividends and profits that may accrue during such period "on or from any share of bank stock which I may own at the time of my death,” and in case any of the banks in which the testator owned stock should wind up their business and distribute their capital, it is provided the widow shall be entitled to receive the funds received from such banks upon liquidation, and she is given the right to re-invest the principal and to retain to her own use all interest and profit derived from such re-investment during her natural life. She is also given power, with the advice and consent of the executors, to sell any part or all of the stock in certain of said banks, and in case of such sale she is given authority to re-invest the proceeds arising therefrom, and is to have as her own property all the interest and profit arising from such investment, and at her death the principal arising from a voluntary liquidation shall “be applied and distributed as hereinafter directed,’’and in case of sale the principal shall “be applied as hereinafter directed.” While the stock, or the funds arising from a sale of the stock or from a voluntary liquidation of any bank, remained in the widow’s hands, no distinction is made with reference to the profit arising therefrom,—whether in the form of dividends upon the stock, interest upon the money or profit upon the investment. It is all treated as income and is given to the widow for life. As showing the intention of the testator with reference to the division of his bank stock upon the death of the widow, we think the first part of paragraph 24 of the will has an important bearing. The testator-there provides in what proportions he desires his bank stock divided among his children in case he shall survive his wife, and provides that in case any of his children shall die before he dies, leaving a child or children them surviving, such child or children shall take the share of the parent, and that in case a child shall die before he dies, without leaving a child or children him surviving, the share or shares of such deceased child shall be divided in equal parts among his surviving children, and that the surviving children of any of his children shall take the share which their deceased parent would have taken if living, thereby clearly manifesting an intention that the principal of his bank stock should be divided among his children and the children of his deceased children. In the same paragraph, after devising the income of the bank stock to his wife for life if she should survive him, upon her death he divides the bank stock among his children in the same proportion he had provided it should be divided among them upon his death in case he should survive his wife, and then provides that it is his intention that in case his wife survive him none of his children or their children or descendants shall take any vested interest in said stock until after the deqth of his wife, and that they shall not have the ability to transfer it, and it shall not become liable for their debts by attachment, execution or other legal process, and in case of his widow’s death subsequent to his death, limited the right of his children or their descendants to take said bank stock to those who should survive his widow. It is conceded said limitation ajiplies to the bank stock and to the principal in the hands of the widow at the time of her death, derived from the sale of bank stock, but it is said that no such limitation applies to the fund in the widow’s hands- received from the banks which had gone into-voluntary liquidation. The clause of the will which disposes of the bank stock, and the proceeds thereof, after the death of Lemira P. Gillett, reads as follows: “If my said wife shall survive me, I give and bequeath all my bank stock that shall remain unsold at the time of her death, and all money arising from the sale of said bank stock by my wife, in manner following,” etc., which clause does not include the moneys received from the banks which have gone into voluntary liquidation, unless the following or similar words, “and moneys received by her from banks which have gone into voluntary liquidation,” can be legitimately read into that clause of the will, and it is earnestly insisted by the appellants to read such words into that clause of the will would be to make a new will for the testator. If the effect of reading into that clause of the will the words above specified would be to change the clause and to make it include something which it did not include before, manifestly the words cannot be read into the clause. But we do not so view the matter. The words are read into the clause to make plain what is the manifest"intention of the testator, considering the will as a whole, but which intention the testator has not accurately or completely expressed by the words he has used. And the authorities are clear this may be done. In Glover v. Gondell, 163 Ill. 566, "on page 584, the language of Mr. Jarman in his work on Wills, (2 Rand. & Tal. 5th Am. ed. p. 60,) is quoted with approval. He there says: “It is established that where it is clear on the face of a will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention as collected from the context.” And in that case the court read into the will the words “of the income,” or “of the interest,” or “of the dividends,” the insertion of which words, it was said, “effectuates the clear intention of the testator and is necessary to give expression to his meaning.” To the same effect is 29 American and English Encyclopedia of Law, (1st ed. p. 372,) where it is said: “Where it is clear on the face of the will’that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention as collected from the context.” A glance at paragraph 23 of the will, wherein the testator directs that all of his personal property, other than bank stock, shall be divided in stated proportions among his children, shows that the testator considered the bank stock; and the funds which might arise therefrom,—and so treated it,—as having been fully disposed of by other provisions of the will, and the clause in relation to the disposition of the fund arising from banks in liquidation and the clause in relation to the disposition of the fund proceeding from sales of stock are in substantially the same language, and both refer to future directions in the will for the distribution of both funds. It would seem to follow that the provision, “f give and bequeath all my- bank stock that shall remain unsold at the time of her death, [the widow’s death,] and all money arising from the sale of said bank stock by my wife, in manner following,” should be held to cover and include all money from both sources. If this position be not correct, then it would appear the testator, when dealing with these two funds, intentionally disposed of one fund and left the other to pass under the residuary clause of the will, although both funds were the proceeds of bank stock received by the widow subsequent to his death. This is not probable. In paragraph 24 of the will it is provided that in case any of the children of the testator should die before his wife leaving a child or children, then such child or children should take in equal parts the share or shares of said bank stock and money which his, her or their deceased parent or parents would have taken in the event of surviving the wife of the testator; again, that if any child of the testator should die leaving no child before the death of his wife, then the share of such child in such bank stock and money should be divided among the surviving children of the testator or their descendants; and further, that none of the children or descendants of children of the testator shall take any vested interest in "said stock or money until the death of the wife. It seems apparent the money arising from stock in liquidated banks, as well as money derived from sales of stock by the widow, was alluded to in these clauses of the will when the testator spoke in general terms of bank stock and money; and this reference to money in this connection strengthens the position that the testator intended to dispose of all moneys derived from both the sale of stock and the liquidated banks to-his children or their descendants who survived the widow, by the provisions of his will, other than the residuary clause. Our conclusion is, that the fund in the hands of Lemira P. Gillett received from banks which had gone into voluntary liquidation, upon her death went, under the terms of the will of John D. Gillett, deceased, to.his children who survived his widow. The next question presented for determination is, did the one hundred shares of stock of the First National Bank of Lincoln represented1 by certificate No. 122, issued to Lemira P. Gillett as a stock dividend, belong to her at the time of her death, and pass, by virtue of her will, to Charlotte L. Barnes as trustee, or did the same belong to the estate of John D. Gillett, deceased, and pass to his devisees, under the terms of his will, at the death of Lemira P. Gillett? It appears that the stock issued to Lemira P. Gillett was paid for with the earnings of said bank which had accumulated prior to the death of John D. Gillett. In the case of DeKoven v. Alsop, 205 Ill. 309, it was held that a stock dividend which evidenced a conversion by the. corporation into capital of earnings accumulated during the stockholder’s lifetime goes to the remainder-men as a part of the corpus of the estate, and not to the life tenant under a will devising the income of the estate to the testator’s widow for life and directing the residue to be divided among others at her death. That case considers all the questions urged upon the consideration of the court bearing upon the phase of this case now under consideration, and is conclusive against the right of Charlotte L. Barnes, as trustee, to hold the stock issued as a stock dividend to Lemira P. Gillett by the First National Bank of Lincoln. The contention is made by appellants other than Charlotte L. Barnes, that if it is held certificate No. 122 does not pass to Charlotte L. Barnes as trustee, then the shares represented by said certificate are so far intestate property that they pass under the residuary clause of the will of John D. Gillett, deceased, to all his children, which would include the devisees of his deceased children. We do not agree with this contention. In Gibbons v. Mahon, 136 U. S. 549, it is said: “A stock dividend really takes nothing from the property of the corporation and adds nothing to the interests of the shareholders. Its property is not diminished and their interests are not increased. After such a dividend, as before, the corporation has the title in all the corporate property. The aggregate interests therein of all the shareholders are represented by the whole number of shares, and the proportional interest of each shareholder remains the same. The only change is in the evidence which represents that interest, the new shares and the original shares together representing the same proportional interest that the original shares represented before the issue of the new ones.” The new shares of stock represent the surplus earnings of the bank and go to the remainder-men under the will of John D. Gillett, deceased, the same as the surplus or improvements made with the sur-, plus would have gone had no stock dividend been made. In Minot v. Paine, 99 Mass. 101, the court said (p. 107): “It is obvious ‘that if the directors had made no stock dividend but had invested the income in permanent improvements, making no increase of the number of shares, the improvements would have been capital, belonging to the legatees in remainder.” .We think it clear that certificate No. 122, upon the death of Lemira P. Gillett, became the property of the children of John D. Gillett, deceased, who survived Lemira P. Gillett, his widow. Finding no reversible error in this record the judgment of the Appellate Court will be affirmed. Judgment affirmed.