Spearman v. Foote

Mr. Justice Fbeeman delivered the opinion of the court. Disregarding certain technical objections urged by counsel, which do not, we think, constitute valid objections to the jurisdiction of the court or to the decree on the one hand, nor to the certificate of evidence on the other, the substantial question presented is the construction and effect to be given to the tenth clause of the will of Thomas Lonergan, deceased. By that clause the testator directed his wife during her lifetime and his children after her death to pay $350 yearly in quarter yearly payments of $87.50, to his sister, the complainant, during her natural life, for her support. This direction is plain and unambiguous. It is followed, however, by a direction that such provision in behalf of complainant “shall not be a charge upon my real or personal property.” Appellants claim that by reason of this last proviso they are relieved entirely from legal or equitable obligations to pay complainant anything. In other words, they contend that the whole tenth clause of the will has no binding force, because the provision therein made for complainant is not to be a charge upon the testator’s real or personal property. They assert that the testator merely intended to leave these payments to what their counsel calls a benevolent discretion, should they possess the benevolence and choose to exercise the discretion. It appears from the evidence that the real estate left bv the testator had an estimated valuation of over $378,000, and the bulk of it was by the will devised and bequeathed to appellants in equal parts, subject to a life interest in the widow terminated in 1895 by her death. Appellants admit they have taken possession of their respective shares in the estate under the terms and provisions of the will. The same instrument in clear and explicit language directed them to make the payments to complainant. They took the estate charged with an imperative trust created by said tenth clause of the will, and this obligation they are nob relieved from because not charged upon the real and personal estate of the testator. The fact that the testator left them at liberty to use or dispose of the real and personal property devised to them without setting aside any specific portion of it as a special trust fund out of which the payments to appellee should be made, does not relieve them of the trust personally assumed by them when they accepted the portions of the estate devised to them respectively. In a case much in point, where property was devised to a son, the testator directing him to furnish the testator’s widow annually with a certain specified provision for her comfort and maintenance (Mahar v. O’Hara, 4 Gillman, 425-428), Mr. Justice Gabon, after holding that jurisdiction of equity “in cases of legacies has been firmly established,” said: “How, in equity he is considered a trustee for the purpose of executing these provisions in favor of the widow, and by accepting the estate he assumed the trust, and the estate thus devised is not chargeable in equity with the trust, but by accepting the devise he became personally responsible for the payment of the legacy according to the provisions of the will.” In Schouler on Wills, sec. 595, it is said that “expressions of desire accompanying a devise or bequest areprima facie obligatory moreover, and create a trust unless the actual intention appears different. Where, for example, one gives to A. B. $5,000, hoping, wishing, recommending,expecting or, perhaps,entreating him to give the same or some part of it to O. D. or use it for C. D.’s benefit—for here C. D. is considered an object of the testator’s bounty—A. B. is pro tanto, at least, a trustee for him by inference.” In the present case the testator not only expresses his desire, but absolutely directs appellants to make these payments to complainant. See, also, Beach on the Law of Wills, Sec. 215; Blanchard v. Chapman, 22 Ill. App. 341-347. It is a well settled rule in equity that a person, by taking any beneficial interest under a will, is thereby held to confirm and ratify every other part of the will, and shall not set up any right or claim which shall in any way defeat or prevent the full effect and operation of any part of the will. Fry v. Morrison, 159 Ill. 244-252; Van Schaack v. Leonard, 164 Ill. 602-606; Buchanan v. McLennan, 192 Ill. 480-483. The rule is stated in Funk v. Eggleston, 92 Ill. 515-534, to be that “if the legacies are made a personal charge on the devisee an acceptance of the devise imposes a personal liability on the devisee, and she will take the estate devised as a purchaser and in fee.” In Spraker v. Van Alstyne, 18 Wendel, 199-204, it is said that the meaning of the expression, “a charge upon the person in respect to the lands devised,” is that the devisee is directed to pay the debts or legacies personally, because the testator has made the devise to him; so that, if he accept the devise, he impliedly assumes to pay the charge. In the case at bar appellants, by acceptance of the devise made to them by their father, assumed personal liability to make the payments as directed in the tenth clause of the will. The decree of the Superior Court will be affirmed. Affirmed.