Douglas v. Bolinger

Mr. Justice Scott delivered the opinion of the court': It appears from the express recitals of the will of Ebenezer M. Douglas, deceased, that he intended by that document to dispose of all the property of which he died possessed. The bill avers that he was the owner of the west half of the north-west quarter of section 12, in town 20, range 5, in Mason county, Illinois; that he never owned any other part of that quarter section, and that his purpose was to devise that part which he did own to Edward Douglas, subject to a life estate in the widow, but that by error said tract was in the will referred to as the north half instead of the west half of the quarter. If the will be given effect according to its precise wording, not only will the purpose of the deceased to die testate as to all his property be defeated but his intent will not be effectuated, in that Edward.Douglas will not receive certain property which he intended should pass to him. While words may not be added to a will nor inserted in lieu of other words stricken therefrom, yet if in a will there is a misdescription of the subject of a devise, and if, after striking out that portion of the description which is false, enough of the description remains, when read in the light of the circumstances surrounding the testator at the time the will was executed, to identify the property he intended to convey, the remaining portion of the description may be so read and the testator’s purpose given effect. Whitcomb v. Rodman, 156 Ill. 116; Decker v. Decker, 121 id. 341; Huffman v. Young, 170 id. 290. In Decker v. Decker, supra, the description contained in the will was, “twenty acres off the west half of the northeast quarter of the north-east quarter of section 33.” The testator did not own the north-east quarter of the northeast quarter but did own the north-west quarter of the north-east quarter, and owned no other land in that quarter section. This court rejected the words “of the northeast quarter” where they first occurred in the description as contained in the will, and, reasoning that the testator’s purpose was to devise twenty acres off the west half of that quarter of the north-east quarter of section 33 which he owned, held that the devise would be given effect and taken to convey twenty acres off the west half of the north-west quarter of the north-east quarter of section 33. The case at bar cannot be distinguished from the one last cited. Striking out the word “north” where it occurs before the word “half” in the description in the clause under consideration in .the will of Douglas, leaves a devise of “the half of the north-west quarter of section 12,” If the facts are as stated by the bill, viz., that the only land owned in that quarter by the testator was the west half of the quarter and that it was the purpose of the testator to devise that half of the quarter to Edward Douglas, the devise will be given effect by striking out the false part of the description, to-wit, the word “north” where it appears before the word “half” in the description in the clause in question, and by so construing the will as that the remaining portion of the description will be held to convey that half of the northwest quarter of said section 12 which was actually owned by the testator. The Decker case has been followed and approved in Whitcomb v. Rodman, supra, and Huffman v. Young, supra. Appellees rely principally on the cases of Kurtz v. Hibner, 55 Ill. 514, Bingel v. Volz, 142 id. 214, and Williams v. Williams, 189 id. 500. The distinction between the first of these cases and a case such as the one now before us is pointed out in Decker v. Decker, supra. This court, in deciding Bingel v. Volz, supra differentiated that case from the Decker case. In Williams v. Williams, supra, when the false part of the description was rejected, the portion remaining, when read in the light of the circumstances surrounding the testator at the time of the execution of the will, could not be deemed descriptive of the realty which it was said the testator intended to devise, without inserting in that remaining portion of the description words not found in the will. The decree of the circuit court will be reversed and the cause will be remanded, with directions to overrule the demurer. Reversed and remanded.