Hollenbeck v. Smith

Mr. Justice Dunn delivered the opinion of the court: The deed was no part of the will of Henry Hollenbeck. It was not admitted to probate as part of the will and no attempt was made to have it so admitted to probate. It could not have been probated, for the evidence fails to show that it was executed in conformity to the Statute of Wills. It did not purport to be testamentary in its character, and there is nothing in the evidence to indicate that it was intended to become operative only after the grantor’s death. It was delivered, and took effect, so far as it took effect at all, as a present conveyance of the title. The premises being a homestead, and the husband and wife not having joined in the execution and acknowledgment of the deed in accordance with the statute, it did not affect the estate of homestead. (Dinsmoor v. Rowse, 200 Ill. 555; Karsten v. Winkelman, 209 id. 547.) The excess over $1000 in value of the premises passed to the wife, but to the extent of $1000 in value the title to the premises remained in the husband unaffected by his deed, and upon his death passed by his will to his devisee, subject to the estate of homestead in his widow. (Jespersen v. Mech, 213 Ill. 488; Venters v. Wickens, 224 id. 569.) She was the owner in fee of the premises except $1000 in value thereof, and as to that $1000 in value the estate of homestead which remained in her husband continued, after his death, for her benefit so long as she continued to occupy the premises. Her possession was therefore not adverse to the devisee. He could not maintain an action against her to recover possession of the premises. The possession of land by a life tenant cannot be adverse to the remainder-man or reversioner so as to set the Statute of Limitations running against him. Mettler v. Miller, 129 Ill. 630; Weigel v. Green, 218 id. 227; Schroeder v. Bozarth, 224 id. 310. Mr. Tritle, who wrote the deed and will, was permitted to testify, over appellant’s objection, that his understanding of Mr. Hollenbeck’s conversation at the time was that the house and lot were to go to Mrs. Hollenbeck, and, as he remembered, the farm was to go to appellant after certain legacies were paid. This evidence was incompetent. The testator’s intention must be determined from the language of the will, and his declarations cannot be received to vary its meaning. Kirkland v. Conway, 116 Ill. 438; Brownfield v. Wilson, 78 id. 468. It is contended by appellees that under the circumstances shown by the evidence the property included in the estate of homestead did not pass to appellant by virtue of the language, “the rest, residue and remainder of my real estate, of every name and nature whatsoever;” that the court, placing itself in the situation of the testator, can see that in order to leave a residue or remainder the property which had been conveyed to the wife was to be taken out from the operation of the will, and that “the rest, residue and remainder” is the farm. The intention of the testator which courts will carry into effect is that expressed by the language of the will. This language will be interpreted in view of the circumstances surrounding the testator, and evidence will be received to show those circumstances, but it will not be permitted to import into the will an intention different from that expressed by its language, however clearly such different intention may be made to appear. (Kurtz v. Hibner, 55 Ill. 514; Bishop v. Morgan, 82 id. 351; Bingel v. Volz, 142 id. 214; Williams v. Williams, 189 id. 500; Vestal v. Garrett, 197 id. 398; Engelthaler v. Engelthaler, 196 id. 230.) Even if the property conveyed to the wife is to be excluded from the operation of the will, the estate of homestead had not been so conveyed. The words, “rest, residue and remainder of my real estate, of every name and nature whatsoever,” include all the real estate the testator owned and had not otherwise disposed of. The fact that he had not disposed of any other real estate by his will does not affect the question. If the words apply to any of his real estate they apply to all of it. He, perhaps, believed that he no longer owned the homestead and did not intend it to pass by his will, but in fact he did own an interest in it, and by the language of the will it would pass to the devisee. The intention so expressed must be given effect. The claim that Mrs. Hollenbeck was led to accept the provisions of the will in her behalf, instead of renouncing them, by reason of appellant’s failure to inventory the homestead as part of the estate of Henry Hollenbeck, and that the appellant is therefore estopped to claim this property, is without merit. There is no evidence to sustain the claim that she was so influenced. Moreover, she knew the condition of the title as well as appellant, and could not be misled by his action or failure to act in regard to the inventory. The decree of the circuit court will be reversed and the cause remanded to that court, with directions to enter a decree of partition of the premises, awarding to the appellant $1000 in value of said premises 'and one-eighth of the remainder; to the appellees Catharine Elizabeth Smith, Sylvester Hollenbeck, John Henry Hollenbeck, Mary Esther McQuarters, Angeline Powell and Luther Hollenbeck each .one-eighth of the excess above $iooo in value of said premises ; and to the appellees Wallace Hollenbeck and Herbert Hollenbeck each one-sixteenth of said excess. Reversed and remanded, with directions.