McDavid v. Miller

Mr. Justice Duncan delivered the opinion of the court. The sole question for our decision is whether the second and third clauses of the second codicil were intended to be cumulative and additional devises, or substitutes for and in lieu of, the devise in the third clause of the original will. The lower court held that they were cumulative and that John Russell Miller was entitled to $2,000 by the original will and $1,500 by the third clause of the second codicil. “The publication of the codicil was a republication of the will in the form it was at the time of the execution of the codicil, and proof of the execution of the codicil establishes the will.” “A clear gift cannot be cut down by any subsequent words (or codicil) unless they show an equally clear intention. * * * Where a codicil is appended to a will and does not contain any clause of revocation, the provisions of the will are to be disturbed only as far as is absolutely necessary to give effect to the provisions of the codicil, and in other respects the will and codicil are to be construed together.” Hubbard v. Hubbard, 198 Ill. 621; Vestal v. Garrett, 197 Ill. 398; Jenks v. Jackson, 127 Ill. 341; Phayer v. Kennedy, 169 Ill. 360; 30 Am. & Eng. Ency. 665. When two legacies of quantity are given simpliciter to the same person by different testamentary instruments, the presumption is that the second legacy is cumulative without regard to the matter of equality or inequality in amount. And an expressed intention to make the alteration in a will in one particular, negatives, by implication, an intention to alter it in any other respect. 18 Am. & Eng. Ency. 729; 3 Am. & Eng. Ency. 296 (1st Ed.); Vestal v. Garrett, 197 Ill. 398. ‘Examining the will and codicils carefully and applying the well established principles of construction to them we think it clearly appears that the lower court gave the proper interpretation of said will. Great stress is laid by appellant on the twelfth clause of the second codicil as showing a clear intent in the testator to abrogate the third clause of the original will. We see no more reason why this clause should be thus abrogated from the will than any other clauses of the original will with the exception of the second and fourth. It is practically conceded by appellant that the whole of the original will is in full force except the third clause. It seems to us clear that what the testator meant by the words in said twelfth clause “after the foregoing bequests herein have been met and fulfilled as herein set forth, and the bequests, as set forth in my former codicil have also been fulfilled, then the seventh clause of my will shall take effect,” etc., is that the two codicils in his will are to take effect and be complied with before the taking effect of the residuary legacy spoken of in the third provision of said seventh clause, and without any notion of abrogating the other clauses in his original will. In other words the testator simply meant that we were to insert the first and second codicils in his original will as part and parcels thereof and between the sixth and seventh clauses thereof. He clearly did not intend that the two codicils and the seventh clause of the original will should constitute the whole of his will, and we therefore conclude that the clear intent of said twelfth clause when fully expressed is that the first six clauses of the will are to be first met and then the clauses of the codicils and then the seventh clause of the original will shall take effect, etc. The payment of .the devises in the codicil necessarily reduced his whole estate previously willed the amounts thereof, and the language in the said twelfth clause is a clear and explicit direction that the whole amounts are to be paid in reduction of the residuary devise. It is also insisted that the tenth clause of the second codicil furnishes a sufficient reason by the use of the words “an additional sum” to show that the devise in the third clause thereof is not additional or it would have been so expressed. Such words when connected with other circumstances have been held sufficient for such a conclusion, but standing alone we see no more reason why it should be an argument against a cumulative devise than in favor of it. To our minds it is only an argument that the testator knew how to make himself very definite, and that he realized some necessity for it in the tenth clause; but it does not clearly explain to our minds why he did not use explicit words of revocation as to the third clause of his original will if that was his intention. The devises in the second and third clauses of the second codicil are entirely different from the third of the original will as will be seen by comparison. Carrie Miller was his adopted daughter and John Eussell Miller was her son and his namesake and had lived with the deceased and had been schooled and clothed by him. The presumption is in favor of the validity of the devise and more strongly so when the devisee has sustained intimate and affectionate relations with the testator during his life and we see nothing in the will and codicils to overcome this presumption. Waters v. Waters, 222 Ill. 26. The decree of the Circuit Court will therefore be and is affirmed. Affirmed.