Gano v. Gano

Mr. Justice Dunn delivered the opinion of the court: George D. Gano died in March, 1906, leaving a will whereby he devised to his wife the use of all his real estate during her life. Subject to the life estate to his wife he devised to the appellant, who was his son, the south-east quarter of the north-east quarter and the north-east quarter of the north-west quarter of section 14, township 19, north, range 3, east of the third principal meridian. To his other children and to his grandchildren he devised other parts of his real estate, subject to the life estate to his wife. The testator owned all of the north-west quarter of section 14, but none of the north-east quarter. He had bought the south-east quarter of the north-west quarter in' 1867 and occupied it for nearly forty years, but after his death it was found that the deed which was supposed to have conveyed the title to him did not describe it but did describe the southeast quarter of the north-east quarter. The surviving wife and all the adult heirs conveyed to the appellant all their interests in the south-east quarter of'the north-west quarter of section 14, but on behalf of the appellees, William Oscar Gano, Lola Pearl Gano and Freía Bell Gano, who' were the minor children of a deceased son of the testator, a bill was filed for the partition of said tract. The appellant, having answered, filed a cross-bill setting up the foregoing facts, and praying that the will might be construed as devising to him the south-east quarter of the north-west quarter of section 14, subject to the life estate to the wife. From a decree sustaining a demurrer to the cross-bill and dismissing it for want of equity this appeal is prosecuted. • The clause of the will under which the appellant claims reads as follows: “Third—I give, devise and bequeath to my son David T. Gano the following described real estate, to-wit: The south-east quarter of the north-east quarter and the northeast quarter of the north-west quarter of section 14, township 19, north of range 3, east of the third principal meridian, in DeWitt county, Illinois.' Subject to the life estate of my wife, Susan B. Gano, as provided in second clause of this my last will and testament.” The purpose of the construction of a will is to ascertain the intention of the testator, which intention must be found in the words of the will itself, as applied to the subjects and objects of the testator’s bounty. Evidence of the state and condition of the testator’s property is admissible for the purpose of identifying such subjects and objects and applying the language of the will to the existing conditions. However many errors there may be in a description, either of a devisee or the subject of a devise, the devise will not be avoided if enough remains, after rejecting the errors, to show with certainty what was intended, when considered from the position of the testator. (Collins v. Capps, 235 Ill. 560.) In this case the testator made specific devises of his real estate after the termination of the life estate given to his wife. It is to be presumed that he intended to dispose of property which he owned. He intended to devise to the appellant eighty acres. Forty acres were properly described, and the other forty were described by the description contained in the deed under which the testator claimed the premises in controversy and had taken and held undisputed possession of them for nearly forty years. There is no doubt as to the intention existing in the testator’s mind. Did he express it in his will? The devise is of “the south-east quarter of the northeast quarter and the north-east quarter of the north-west quarter of section 14,” etc. If the words “quarter of the north-east quarter” are stricken out, there remain the words “the south-east and the north-east quarter of the north-west quarter of section 14,” etc. The testator owned the southeast quarter of the north-west quarter and had the power to devise it, but he did not own and could not devise the south-east quarter of the north-east quarter. Applying the language used in view of the situation of the testator’s property and striking out the false part of the description referring to property which the testator did not own, the language identifies the property intended to be devised. This case cannot be distinguished from those of Decker v. Decker, 121 Ill. 341, Douglas v. Bolinger, 228 id. 23, Felkel v. O'Brien, 231 id. 329, and Collins v. Capps, supra. In each of these cases it was held that where it appears that the description of land devised, though full, certain and explicit on the face of the will, is, in part, false and the testator did not own the land, extrinsic evidence may be heard, not to add to or change the words of the will, ,but to show the situation of the testator’s property and to enable the court to apply the words to the subject matter in view of the circumstances surrounding the testator at the time of the execution of his will, and if enough remains, after striking out the false part of the description, to identify the property the testator intended to convey, his intention will be given effect. If the testator owns any real estate which corresponds, in part, to the description in the will, the court will reject the incorrect part of the description and will pass the realty conveyed by the correct description. (Page on Wills, sec. 819, p. 376.) Many cases in which this principle has been-applied are cited in Collins v. Capps, supra. It is the settled rule in this court. The decree of the circuit court will be reversed and the cause remanded to that court, with directions to overrule the demurrer to the cross-bill. Reversed and remanded, with directions.