{ "id": 5498510, "name": "George W. Young et al. v. William Harkleroad et al.", "name_abbreviation": "Young v. Harkleroad", "decision_date": "1896-11-11", "docket_number": "", "first_page": "318", "last_page": "327", "citations": [ { "type": "official", "cite": "166 Ill. 318" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "142 Ill. 606", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "156 Ill. 61", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3022313 ], "opinion_index": -1, "case_paths": [ "/ill/156/0061-01" ] }, { "cite": "156 Ill. 116", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3022756 ], "opinion_index": -1, "case_paths": [ "/ill/156/0116-01" ] }, { "cite": "3 Sandf. Ch. 293", "category": "reporters:state", "reporter": "Sand. Ch.", "case_ids": [ 2166692 ], "opinion_index": -1, "case_paths": [ "/sand-ch/3/0293-01" ] }, { "cite": "1 Edw. Ch. 174", "category": "reporters:state", "reporter": "Edw. Ch.", "case_ids": [ 485645 ], "opinion_index": -1, "case_paths": [ "/edw-ch/1/0174-01" ] }, { "cite": "141 Ill. 337", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5457262 ], "opinion_index": -1, "case_paths": [ "/ill/141/0337-01" ] }, { "cite": "138 Ill. 541", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5445651 ], "opinion_index": -1, "case_paths": [ "/ill/138/0541-01" ] }, { "cite": "6 Wall. 458", "category": "reporters:scotus_early", "reporter": "Wall.", "case_ids": [ 3456203 ], "opinion_index": -1, "case_paths": [ "/us/73/0458-01" ] }, { "cite": "43 Fed. Rep. 854", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3726752 ], "opinion_index": -1, "case_paths": [ "/f/43/0854-01" ] }, { "cite": "145 Ill. 300", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "pin_cites": [ { "page": "317" } ], "opinion_index": -1 } ], "analysis": { "cardinality": 732, "char_count": 19464, "ocr_confidence": 0.589, "pagerank": { "raw": 6.102899988581868e-07, "percentile": 0.9556580325725554 }, "sha256": "b032abcbc8a6a15bb24bb743074a6ca71abbe10eb108a8f82ec490c718832b3b", "simhash": "1:98c98612a5623750", "word_count": 3409 }, "last_updated": "2023-07-14T17:00:05.075610+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George W. Young et al. v. William Harkleroad et al." ], "opinions": [ { "text": "Mr. Justice Wilkin\ndelivered the opinion of the court:\nCounsel for George Young insist that the words, \u201cand in case of the death of either one then their portion to descend and belong to the heirs of the other persons mentioned in this section, in equal portions,\u201d are meaningless and inoperative, and that when Annie B. Young died without any heirs -of her body, as contemplated by the testator, the portion of the land devised to her for life descended to the heirs general of the testator as intestate property, and that as Mrs. Young was one of those heirs, and had willed her estate to her husband, George Young, he, by virtue of the descent to his wife and of her will to him, took the estate. Counsel for Fred B. Kinder also insist that the above words are inoperative, but their contention is, that the portion of the estate of his mother held for her life descended to him, not as an heir of his mother\u2019s body under the will, but as one of the general heirs of the testator. William, Florence Maud and Isaac Harkleroad, (son of the life tenant, Isaac Harkleroad,) by their counsel, contend that the above words should not be considered as meaningless, but by construing them to mean \u201cthat in case of the death of either one without such heirs\u201d the real intention of the testator will be discovered, the latter words, \u201cwithout such heirs,\u201d being implied from the general intent of the testator. Counsel for Ida B. Anderson maintains that the true construction of the clause in question does not require the use of implied words nor the striking out of other words as inoperative, but insists that the words \u201cin case of the death of either one,\u201d refer to the heirs of the bodies of those taking the life estate.\nIt has been frequently announced by this court that the fundamental rule in the construction of wills is to consider their whole scope and plan, comparing their various provisions with one another, and construing them, if possible, so that all may stand. The testator in this cause bequeathed his real estate to his children and grandchildren \u201cduring their natural lives, and after their decease to the heirs of their bodies.\u201d Thus far his meaning is clear and plain. But the remaining portion of the sentence, \u201cand in case of the death of either one, then their portion to descend and belong to the heirs of the other persons mentioned in this section,\u201d taken literally, directly contradicts what has just been said. For instance, since the death of the testator Isaac Harkleroad (the life tenant) has died, leaving a son. Under the first part of the clause under consideration the son takes a remainder in fee as the heir of the body of his father; under the second part he is cut off, for, in case of his father\u2019s death, that estate is to go \u201cto the heirs of the other persons mentioned\u201d in the section. Under such a construction he would take as remainder-man at the death of and as successor to other life tenants than his father, taking the estate, not of his father, but of other devisees,\u2014and this again would be contrary to the intention of the testator previously expressed, as he would not be an heir of the body of the first taker. It is apparent that the sentence, as it stands, does not literally express the testator\u2019s intention. Clearly, something has been left out. Is it not equally clear, from the language used, what that omission is? It is needless to say that the testator did not contemplate the \u201cdeath\u201d of the life tenants as a contingency. Such a construction renders the clause inconsistent within itself, as he recognized the absolute certainty of that event in the first part of the sentence, making it the point at which the remainder-man should take the estate.\nFrom a careful reading of the will we think the words \u201cin case of the death of either one\u201d indicate substitution, and is a further provision, to take effect upon the failure of some event anticipated by the testator. They are a part of the same sentence, and do not indicate a change in the general plan of disposition of his property. We think that provision is understood, by implication, to mean, \u201cin case of the death of either one without such heirs then their portion to descend and belong to the heirs of the other persons,\u201detc. Under this construction there is no necessity of rejecting any part of the will nor of adding anything thereto, the words \u201cwithout such heirs\u201d being plainly inferred. The defect in the language is simply a verbal omission, and being so, the true meaning of the clause may be implied \u201cin order to reach the obvious general intent of the testator.\u201d 1 Redfield on Wills, 465.\nOur attention is directed to two cases cited by counsel for appellees, the first being Abbott v. Middleton, 21 Beav. 143. The testator in that case bequeathed to his wife an annuity of \u00a32000 for life, and directed a particular fund to be set apart for securing it. He then proceeded to express himself as follows: \u201cAnd on her decease the sum provided and set apart for such payment to become the property of my son G. 0., so far as the said G. C. shall receive interest on such sum during his life, and on his demise the principal sum to become the property of any child or children he may leave, born in lawful wedlock; but in case of my said son dying before his mother, then and in that case the principal sum to be divided between the children of my daughters, (naming them,) in equal portions to each.\u201d The son died before his father and mother, leaving one child, who survived them. It was held that to effectuate the plain intention of the testator the words \u201cwithout leaving a chil\u00e1V should be implied after the word \u201cdying.\u201d Under this construction of the will the child was held entitled to the principal sum after the grandmother\u2019s death. The second case cited is Spalding v. Spalding, Cro. Car. 185, cited in the Abbott case. In this case the words \u201cwithout issue\u201d were understood to be implied, under circumstances similar to those in the Abbott case. We are satisfied these cases are in point and are in harmony with the decisions of this State, and hence we think the sixth clause should be construed as if it read, \u201cin case of the death of either one without such heirs.\u201d\nUnder this construction the next question is, what are the respective interests of the parties to this cause? Isaac Harkleroad, the life tenant, died prior to the filing of this bill, leaving a son, who takes his father\u2019s portion of the lands in fee, under the will. Of this there is no question. The last, and more difficult, question is, what becomes of the portion of the estate held for life by Annie B. Young? She is now deceased, but has left no heir of her body who comes within the provisions of the will, her only son, Fred B. Kinder, being expressly excepted by its terms. Under our construction of the sixth clause, Mrs. Young having died without such heirs, the will directs that the portion held by her shall \u201cbelong to the heirs of the other persons mentioned in this section, in equal portions.\u201d The other persons mentioned in the section are William, Is-aac and Florence Maud Harkleroad. William and Florence Maud are still living, but, technically speaking-, have no heirs. Isaac, one of the life tenants, being dead and leaving a son, that son is the only person coming within the terms of the will as an \u201cheir of the other persons mentioned in this section.\u201d What portion of the estate does he take? Does he take all, as the only heir capable of taking, or does he take but a part of it? In other words, does that portion of Mrs. Young\u2019s estate which would have gone to the heirs of William and Florence Maud lapse for want of such heirs, and become subject to distribution among the heirs of the testator generally, as intestate estate, or does the heir of Isaac, deceased, take the whole of that portion? The determination of this question depends upon whether the testator intended that the estate of either party dying without heirs of the body should go to the heirs of the other parties per capita or per stirpes. His language is, \u201cthen their portion to descend and belong to the heirs of the other persons mentioned in this section, in equal portions,\u201d and, taken literally, it means that his several grandchildren who come within the term \u201cheirs of the other persons mentioned,\u201d shall take pro rata or in equal portions, without any reference to the number of children of each life tenant; and in our view of the case, the only person who comes within the terms of the will as an \u201cheir of the other persons\u201d mentioned is the son of Isaac Harkleroad, deceased, the life tenant, and the whole of the life estate of Mrs. Young therefore goes to him in fee. From a painstaking examination of the entire will we are unable to discover anything which sufficiently shows a different intention from that thus literally expressed, and therefore effect must be given to the language used. This conclusion is fortified, to some extent, by the fact that William Harkleroad, one of the life tenants, is non compos, and was known by his father to be so, and therefore it is fair to presume that he did not contemplate William would have children.\nAs to the seventh clause of the will, it is clear the testator disposed of the entire proceeds which will arise from the sale of the Collinsville property upon the death of the widow, Altheda Harkleroad. She was still living at Mrs. Young\u2019s death, and hence the latter could have had no vested interest in that fund capable of being disposed of by her will. Upon the death of the widow, when that time arrives, the portion of the proceeds of the sale which would have gone to Mrs. Young had she been living at that time will go to her \u201clegal heirs, excepting only Frederick Kinder,\u201d they taking under the will of the testator, Isaac Harkleroad. It cannot now be told who they will be.\nWe think the action of the circuit court in decreeing a part of the sixth clause tobe meaningless and inoperative is erroneous. Its judgment is therefore reversed and the cause is remanded, with directions to that court to construe the sixth and seventh clauses of the will in conformity with the views herein set forth.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Wilkin" } ], "attorneys": [ "Hadley & Burton, and E. C. & W. F. Springer, for appellants:", "Travous & Warnock, for appellees William, Florence M. and Isaac Harkleroad:", "John G. Irwin, for appellee Ida B. Anderson:" ], "corrections": "", "head_matter": "George W. Young et al. v. William Harkleroad et al.\nFiled at Mt. Vernon November 11, 1896\nRehearing denied May 5, 1897.\n1. Wills\u2014in construing a will its whole scope and plan will be considered. In construing a will its whole scope and plan will be considered, its various provisions will be compared, and, if possible, such a construction be adopted as to allow all provisions to stand.\n2. Same\u2014iohere a defect in language is simply a verbal omission the meaning may be implied. Where the defect in the language used in a will is merely a verbal omission the meaning of the clause may be implied, in order to reach the testator\u2019s obvious general intent.\n3. Same\u2014language of will construed. Where the first part of a sentence of a will devises the testator\u2019s estate to his children \u201cduring their natural lives, and after their decease to the heirs of their bodies,\u201d a second part, that \u201cin case of the death of either one their portions shall belong to the heirs of the others,\u201d etc., will be construed as meaning \u201cin case of the death of either one without such heirs,\u201d etc.\nAppeal from the Circuit Court of Madison county; the Hon. Benjamin E. Burroughs, Judge, presiding.\nThis is a bill by William Harkleroad and others to construe the will of his father, Isaac Harkleroad, deceased, late of Madison county. The testator died leaving a widow, William and Isaac Harkleroad, his sons, Florence Maud Harkleroad, a daughter, Fred B. Kinder, (the only child of his grand-daughter, Annie B. Kinder, only daughter of a fourth child of the testator, who was the wife of George Young at the time of her death,) and Ida B. Anderson, (only child of a fifth child of the testator,) his only heirs him surviving. The sixth and seventh clauses of the will in question are as follows:\n\u201cSixth\u2014It is my will and I do hereby bequeath my real estate in the American Bottom, known and described as follows, to-wit: The south half of the north-west quarter and the south half of the south-west quarter and the south-west quarter of the south-east quarter of section 13, and the south-east quarter of the south-east quarter of section 14, and the north-east quarter of section 23, and the north half of the north-west quarter of section 24, all in T. 3K, 9 W., in Madison county, Illinois, to my sons, William Harkleroad and Isaac Harkleroad, and to my daughter, Florence Maud Harkleroad, and to my granddaughter, Annie B. Kinder, during their natural lives, and after their decease to the heirs of their bodies, (excepting only the heir now living of Annie B. Kinder, who shall not receive any portion whatever above that set apart and heretofore mentioned,) and in case of the death of either one, then their portion to descend and belong to the heirs of the other persons mentioned in this section, in equal portions. Said real estate is to be so subdivided that my son William Harkleroad shall receive one-fourth of one share or portion more than either of the shares mentioned in this section. The division or setting apart to each one of their share or portion after five years from my decease, or when Florence Maud shall arrive at the age of eighteen years.\n\u201cSeventh\u2014After the death of my said wife, Altheda Harkleroad, it is my will that the real estate in Collins-ville, hereinbefore described, be sold and the proceeds thereof divided as follows: $1000 to Ida Belle Harkleroad, and the remainder between William Harkleroad, Isaac Harkleroad, Florence Maud Harkleroad and Annie B. Kinder, .and in case of the death of either one, then their portion to descend to and belong to their legal heirs, excepting only Frederick Kinder, son of Annie B. Kinder, especially mentioned.\u201d\nThe circuit court construed the will, finding the interests of the parties as follows: \u201cIt is therefore decreed, that in and by the sixth section of said will William Harkleroad, Isaac Harkleroad, Florence Maud Harkleroad and Annie B. Kinder took an undivided life estate in the premises described in said section 6 in the following proportions: William five-seventeenths, Isaac four-seventeenths, and Florence Maud Harkleroad four-seventeenths, and Annie B. Kinder four-seventeenths, with remainder to the heirs of the bodies of said William, Isaac and Florence Maud Harkleroad and Annie B. Kinder, excepting therefrom Fred B. Kinder, each to take per stirpes a share in the remainder equal to the parents\u2019 share in the life estate, so that the heirs of the body of William Harkleroad would take five-seventeenths of the remainder and the heirs of the body of each of the other three (excepting Fred B. Kinder) four-seventeenths; that upon the death of any of said four life tenants without leaving heirs of their body the share devised to such life tenant vests in the survivors, including Ida Belle Anderson, (formerly Harkleroad,) and their descendants; that the clause of section 6, namely, \u2018and in case of the death of either one, then their portion to descend and belong to the heirs of the other persons mentioned in this section, in equal portions, \u2019 is inoperative and does not change the legal meaning thereof; that the title and interest of said parties in and to the real estate in said section are now as follows: William Harkleroad is the owner of a life estate in an undivided five-seventeenths; also an undivided one-seventeenth in fee simple, being the undivided one-fourth of the share devised to the heirs of the body of Annie B. Young, other than Fred B. Kinder; Isaac Harkleroad, complainant, is the owner in fee of an undivided five-seventeenths; Florence Maud Harkleroad has a life estate in an undivided four-seventeenths and an undivided one-seventeenth in fee; and Ida Belle Anderson (formerly Harkleroad) is the owner in fee of an undivided one-seventeenth of said premises. By said seventh section, construed according to its legal effect, Ida Belle Anderson is entitled to the net proceeds to be realized from a sale of the Collinsville real estate mentioned in sections 3 and 7, after the death of Altheda Harkleroad, to the extent of $1000, and the remainder of said net proceeds is bequeathed to William Harkleroad, Isaac Harkleroad, Florence Maud Harkleroad and Annie B. Young and their legal heirs, except Fred B. Kinder. The interest of Isaac Harkleroad, devisee, at his death descended to his infant son, Isaac. The interest of. said Annie B. Young, at her death, by her will vested in her husband, George Young, subject to the payment of the legacy of $100 to Fred B. Kinder.\u201d\nGeorge Young and Fred B. Kinder bring the cause here and assign errors, and William Harkleroad and others, complainants below, assign cross-errors. Ida B. Anderson also questions the correctness of the decree below.\nHadley & Burton, and E. C. & W. F. Springer, for appellants:\nIf there is no devisee the devise fails, and the title to the property remains in the devisor. Dinwiddie v. Self, 145 Ill. 300; Lehndorf v. Cope, 122 id. 317; Lewis v. Barnhardt, 43 Fed. Rep. 854; Tiedeman on Real Prop. sec. 403; Doe v. Considine, 6 Wall. 458.\nTravous & Warnock, for appellees William, Florence M. and Isaac Harkleroad:\nIn the construction of a will the testator\u2019s intention controls. This intention is ascertained from a full view of everything contained in the will, and every provision will be upheld and given its proper force, unless there is some invincible repugnancy or it is absolutely unintelligible. 1 Redfield on Wills, 451; Dickison v. Dickison, 138 Ill. 541; Allen v. McFarland, 150 id. 455; Roberts v. Roberts, 140 id. 345.\nIn order to conform to and effectuate the obvious intent of the testator, gathered from his whole will, words will be transposed, changed or supplied. 1 Redfield on Wills, 466; Schaefer v. Schaefer, 141 Ill. 337; Marsh v. Hague, 1 Edw. Ch. 174; Carter v. Bloodgood, 3 Sandf. Ch. 293.\nThe words \u201cin case of the death of\u201d import substitution, and the words \u201cwithout heirs of the body\u201d will be supplied by implication, where necessary to effectuate the plain purpose of the testator. Galland v. Leonard, 1 Swanst. 161; Abbott v. Middleton, 21 Beav. 142; Sheppard v. Lessingham, Amb. 122; Spalding v. Spalding, Cro. Car. 185; 1 Redfield on Wills, 454, and note.\nJohn G. Irwin, for appellee Ida B. Anderson:\nThe intention of a testator is always to be ascertained from the language of his will, but parol evidence may be heard to aid in the interpretation of wills,\u2014not to add words to them, but to explain latent ambiguities, and to put the judge in the shoes of the testator, so that the language used may be construed from that point of view. Whitcomb v. Rodman, 156 Ill. 116; Richardson v. Eveland, 126 id. 39; Bowen v. Allen, 113 id. 59; Kaufman v. Breckenridge, 117 id. 313; Decker v. Decker, 121 id. 345.\nA devise to a person named \u201cand Iiis heirs,\u201d under the rule in Shelly\u2019s case, gives him a fee, which cannot be limited by a subsequent provision that in case he dies without heirs of his body the property shall pass to other persons in fixed proportions. Ewing v. Barnes, 156 Ill. 61.\nA limitation after a fee simple determinable will be void, unless the contingency upon which the first limitation is to determine and the second to arise is within the rule against perpetuities, 20 Am. & Eng. Ency. of Law, 920; Post v. Rohrbach, 142 Ill. 606." }, "file_name": "0318-01", "first_page_order": 318, "last_page_order": 327 }