Gillmann v. Dressler

Mr. Chief Justice Stone delivered the opinion of the court: This is an appeal from an order of the circuit court of Cook county receiving in probate the purported last will and testament of Hugo J. Gillmann, - deceased. On May 24, 1920, Charles P. Gillmann, named as legatee and executor of said will, filed his petition in the probate court of Cook county for probate of the will, and on October 2, 1920, the probate court admitted the will to probate. From this order an appeal was taken to the circuit court of Cook county, where a like order was entered. The sole contention of appellants is, that this will, which was made by Hugo J. Gillmann while a bachelor, was revoked by his marriage to Marion Woodman, (now Marion G. Dressier,) one of the appellants. The will, after making certain devises and bequests to the testator’s mother and other members of his family, provides as follows: “Fourth—In the event of my being married at the time of my death, leaving no offspring, then my estate is to be divided as follows: One-third to be paid to my widow, the balance, two-thirds of my estate, to be divided as provided for in article first of this will, namely, equally between my mother, Antoinette Gillmann, my sister, Helen Fannie Gillmann, and my step-father, Charles F. Gillmann. “Fifth—In the event of my being the father of children born or begotten by me, my wife is to receive the interest on one-third of my estate, which is to be held in trust by my step-father, Charles F. Gillmann, he furnishing a bond for the amount of such trust; one-third of my estate to be held in trust by the said Charles F. Gillmann, or his executor, for my child or children until they have reached the age of twenty-one years, then the principal is to be paid to them, the interest on said amount to be paid quarterly; and the third one-third of my estate be divided as in article first, between my mother, Antoinette Gillmann, my sister, Helen Fannie Gillmann, and my step-father, Charles F. Gillmann. “Sixth—If my wife re-marries, the interest of the one-third of my estate which was to be paid to her as provided for in article five is to be paid to my child or children for their support and education, and the principal to be paid to them, with the other "one-third, as provided for in said article five. “Seventh—Should my wife remain unmarried and my child or children die before my estate is distributed, after paying all their lawful debts my estate is to be divided as provided for in article first or second.” Section 10 of chapter 39 of our statutes provides that marriage shall be deemed a revocation of a prior will. Appellee’s contention is that this case falls within the rule laid down in Ford v. Greenawalt, 292 Ill. 121, where it was held that as to that particular case the' legislature did not intend that in such a situation the marriage should be deemed a revocation of the will. The will in the Ford case provided as follows: “In case I intermarry with Ruth Inscho, sister of my deceased wife, as I now contemplate doing, and she survive me, I bequeath to her,” etc. It will be noted that in that case the will of Ford showed by its terms that it was not intended to be revoked by his marriage to Ruth Inscho; that the devise and bequest to Ruth Inscho was a devise and bequest to a particular person, (naming her,) conditioned on the testator’s marrying her. It was not an attempt to provide for some woman not-yet ascertained, in the event of the testator’s marriage with her, but in that case if Ford married Ruth Inscho, as he contemplated doing, she was to receive the estate; if he did not marry her but married someone else, then Ruth Inscho would take nothing, not only by the statute, which would revoke the entire will under such circumstances, but by the terms of the will itself. That case is clearly distinguishable from the case at bar. In the instant case the evidence showed that Gillmann did not marry for a period of nearly three and one-half years after making the will, and there is nothing in the will to indicate that he had in mind marriage with Marion Woodman at the time the will was made. It is not a devise to her conditioned upon such marriage or a statement that he contemplated marrying her, but it is a general provision that in case he should marry, the person who should then be his wife was to receive certain devises or bequests. This clearly does not come within the rule laid down in Ford v. Greenawalt, supra. The construction of the statute given in the Ford ca^e is, that the legislature did not intend that the act should apply to a case where the will showed upon its face that it was to remain the will of the testator under the changed conditions by reason of the devise to a particular person conditioned upon the marriage to such person. To hold that such á rule should apply to a case where a devise is made simply upon the happening of an event which the will does not show to have been considered as certain to happen but which is viewed merely as one of the possibilities of his life, would be to extend the rule beyond that laid down in the Greenawalt case and to nullify section 10 of chapter 39 of our statutes. The reasons for the decision in that case are set forth therein, and it is clear that the present case does not come within such reasoning. As was held by this court in Woody. Corbin, 296 Ill. 129, the rule should not be extended to those cases clearly coming within the intention of the legislature requiring the revocation of the will. We are of the opinion that the will in the instant case was revoked by the marriage of the testator. The order of the circuit court admitting the will to probate is therefore reversed and the cause remanded to that court, with directions to enter an order denying probate of the will. Reversed and remanded, with directions.