Clark v. Todd

Mr. Justice Thompson delivered the opinion of the court: Anna E. Yeazell died testate at her home in Springfield, Ohio, April 22, 1920, possessed of lands in Ohio and Illinois which she had inherited from her father. July 5, 1888, she made her will, giving to her husband all her personal property and a life estate in all her real property, “with remainder over, at the death of said husband, to my heirs-at-law.” Her nearest relatives then living were a brother and two sisters, who in the event of her death, leaving out of consideration her husband, would have been her heirs-at-law. One of the sisters, Mary C. Pratt, died leaving eight children surviving her: Charles, Irene, Ida, Josephine, John, Norma, Blanche and Mabel. The other sister, Martha Calvert, died leaving four children surviving her: Cosette, Bertha, Robert and Ralph. The brother, James Clark, died in 1906, leaving surviving him Emerson E. Clark, his only son. Thereafter, October 3, 1910, testatrix made a codicil to her will, the first clause of which reads as follows: “1. I direct that in the ascertainment of my ‘heirs-at-law,’ wherever and whenever the same be necessary, either under said last will and testament or under this codicil thereto, there be excluded therefrom my nephew Charles E. Pratt, now of Chicago, Illinois, son of my deceased sister, Mary C. Pratt, and also my grand-nephew William Atkinson, of Plain City, Ohio, son of my niece Mabel Atkinson, deceased, who was a daughter of my said deceased sister, Mary C. Pratt; meaning thereby that the class ‘my heirs-at-law,’ as used in my said last will and testament, shall be made up and constituted of those persons who would be such ‘heirs-at-law’ according to the laws of such State as would have jurisdiction in the premises, omitting and-excluding therefrom the said Charles E. Pratt and William Atkinson, the same as if in said last will and testament I had specifically named as my said residuary legatees and devisees all of the persons who would be such ‘heirs-at-law’ according to the laws of such State, other than the said Charles E. Pratt and William Atkinson; so as that, for illustration, if my said heirs-at-law, including said Pratt and Atkinson, should be ten in number, by such omission of the said Pratt and Atkinson there shall be but eight of my said ‘heirs-at-law’ to take as my said residuary legatees and devisees, I hereby directing and declaring that the said Charles E. Pratt and William Atkinson are in nowise to take, either per stirpes or per capita, any of my estate and property as of the number of my ‘heirs-at-law’ constituting my residuary legatees or devisees.” May 26, 1919, her husband died, and two months later she executed a second codicil to her will. By the third clause of this codicil she bequeathed to the heirs-at-law of her deceased husband $12,000, specifically providing that they were to take per stirpes and not per capita. She stated that she made this bequest for the purpose of restoring to his family money received through her husband from one of her husband’s brothers. By the fourth clause she made' this provision: “4. My husband, William M. Yeazell, having predeceased me, I give, bequeath and devise all of the residue and remainder of my estate, both personal and real and wheresoever situate, including all of my lands and property in Logan county, Illinois, and also including any legacy or devise lapsed from any cause, absolutely and in fee simple to my heirs-at-law as they are defined in the first codicil, dated October 3, A. D. 1910, to my said last will and testament.” 'Her nephew Emerson E. Clark is named executor. After the drafting of the first codicil and before the drafting of the second, one of her nephews, John Pratt, died leaving three children surviving him, and one of these children died leaving two children surviving. Irene Pratt Gilroy died leaving no descendants. When testatrix died she left surviving her as her heirs-at-law one nephew, son of the deceased brother; two nephews and two nieces, children of a deceased sister; four nieces, one nephew, three grandnephews, a great-grand-niece and a great-grand-nephew, descendants of another deceased sister. The will and codicils were admitted to probate in Clark county, Ohio, and Emerson E. Clark qualified as executor. Clark filed his bill in the circuit court of Logan county praying that the 830 acres of Logan county lands be partitioned among the heirs-at-law, giving to him one-third; to Cosette Todd, Bertha Shelton, Robert Calvert and Ralph Calvert each one-twelfth; to Ida Murray, Josephine Flynn, Blanche Sharp and Norma Pratt each one-fifteenth; to Eveleigh Pratt and Emerson Pratt each one-forty-fifth; and to Mary Louise Pratt and Wyatt E. Pratt each one-ninetieth. Appellants filed an answer, stating that at the time of making the first codicil, testatrix had living, exclusive of Charles E. Pratt and William Atkinson, ten nephews and nieces, and alleging that her real estate was by said will and codicils devised in fee simple in equal shares to her heirs-at-law the same as if each had been specifically named as a residuary devisee. The chancellor held that the lands passed under the will and codicils to the heirs-at-law per stirpes and net per capita, and granted the prayer of the bill. This appeal followed. Appellants argue with much force that testatrix intended by the codicils to her will to divide her estate equally among her heirs-at-law. Their contentions are supported by the changed conditions which prompted the execution of the codicils and by the language used in the second codicil. When the will was made testatrix had a brother and two sisters, and had they survived her and her husband her property would have been equally divided among them. When testatrix made the first codicil, which was twenty-two years after she executed the will, the brother and two sisters were dead and she had as her nearest relatives eleven nephews and nieces and one grand-nephew. By this codicil she left her diamonds to six nieces, naming them, and she excluded from participation in the distribution of her estate her nephew Charles E. Pratt and her grand-nephew William Atkinson. In speaking of those who were to take she used this language: “Meaning thereby that the class ‘my heirs-at-law,’ as used in my said last will and testament, shall be made up and constituted of those persons who would be such ‘heirs-at-law’ according to the laws of such State as would have jurisdiction in the premises, omitting and excluding therefrom the said Charles E. Pratt and William Atkinson, the same as if in said last will and testament I had specifically named as my said residuary legatees and devisees all of the persons who' would be such heirs-at-law according to the laws of such State, other than the said Charles E. Pratt and William Atkinson.” If the testatrix in this codicil used the word “heirs” to describe the persons who were to take, and not to fix the interest which would vest in each person by virtue of his or her heirship, then the persons described would take per capita. On the other hand, appellee contends just as forcibly that the only purpose of clause 1 of the first codicil was to exclude Pratt and Atkinson and to cause the property to pass to the heirs of testatrix.the same as if Pratt and Atkinson had not been born. If this was the only purpose, the scrivener could by the use of a single sentence have made this purpose clear. Where, as in this case, the scrivener by the use of many unnecessary and ambiguous words has successfully concealed the intent of the testatrix so that it is not possible to determine to a certainty what was intended, there are certain definite and well established rules which are applied to aid the courts in reaching a correct conclusion. Where, as here, a codicil is appended to a will and does not contain a clause of revocation but contains specific clauses of ratification, the provisions of the will are to be disturbed only as far as is necessary to give effect to the provisions of the codicil, and in other respects such will and codicil are to be construed together. (Meckel v. Johnson, 231 Ill. 540; Vestal v. Garrett, 197 id. 398.) A codicil does not supersede a will but should be construed in harmony with it unless there is a clear revocation in the codicil of the provisions of the will. The plain provisions of the will cannot be taken away or modified by doubtful expressions contained in the codicil. ( Tucker v. Tucker, 308 Ill. 371; Alford v. Bennett, 279 id. 375.) There was in the will a specific devise of the remainder in fee to the heirs-at-law of testatrix. We do not find in the codicil language which clearly and unequivocally expresses an intention of testatrix to revoke this provision of her will and cut down the interest of those nearest akin to her and make an equal distribution of her estate among her heirs-at-law regardless of the different degrees of consanguinity. There is no doubt that testatrix executed this first codicil to exclude from those who were to benefit by the distribution of her estate two who would otherwise have participated in the distribution. Where a specific change of disposition is made by a codicil it negatives an intention to make any other change in the will, and the determination expressed by the codicil to alter the will in a specific particular negatives an intention to alter it in other respects. (2 Schouler on Wills, — 6th ed. — sec. 904.) She had lands in Ohio and in Illinois, and according to the language of the codicil she recognized that the shares of those who were to share in her bounty might under the laws of descent in the different States be different. If she had intended that all her kin should share equally she would have named them specifically, so that they would have shared equally in all her property, wherever situated. There are no words in the will or either of the codicils indicating equality of distribution. The devise is to her heirs-at-law. We must invoke the aid of the Statute of Descent to determine the persons who are to take, and when invoked for that purpose we must, in the absence of an intent expressed in the will, follow the provisions of the statute in determining the quantity the beneficiaries aré to take. As a general rule, when gifts are made by will to heirs-at-law simpliciter, the persons to take and the proportions must be determined by the Statute of Descent. (Richards v. Miller, 62 Ill. 417; Kelley v. Vigas, 112 id. 242; Welch v. Wheelock, 242 id. 380.) Where, as in this case, it is doubtful who are to take under a designation such as “heirs-at-law,” the presumption is that the testator intended that his property should be distributed in accordance with the laws of descent, and the will will be construed to favor those who are nearest of kin to the testator. Dollander v. Dhaemers, 297 Ill. 274; Annotation, 16 A. L. R. 15-152; Conklin v. Davis, 63 Conn. 377, 28 Atl. 537; Dunlap’s Appeal, 116 Pa. St. 500, 9 Atl. 936; Henry v. Thomas, 118 Ind. 23, 20 N. E. 519. The decree of the circuit court is in accordance with the settled law of this State, and it is therefore affirmed. Decree affirmed.