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(162 N.E.)

were living in and occupying the Posen Acres property in September, October, and November. Appellee visited them there in September and in October, 1925, and appellants claim on each occasion of such visits they insisted on the performance of the contracts, and that appellee said he would not perform because they had not placed a mortgage on their Lowe avenue property, as they agreed. Through the assistance of a lawyer named Perlman, appellants in September, 1925, executed a mortgage or trust deed on their property for $2,800. It purported to secure a loan, and was dated September 21, 1925, and acknowledged by appellants on that date. They had delivered the abstract of their title to appellee's attorney on August 27, 1925. September 24, 1925, appellants' attorney wrote appellee that appellants had placed the matter of performing the contract in his hands, and that, unless he heard from appellee before October 1, he would begin suit for specific performance. The letter stated appellants were ready, able, and willing to perform on their part. Appellants, or one of them, testified to making an appointment with appellee to meet him on a certain day at an attorney's office to close the deal; that they went to the office at the time mentioned, but appellee did not appear, and afterwards, when seen by one of the appellants, he said he was going back to his farm, where appellants were living, and that he would not go through with

the deal.

To us it seems from the evidence that the written contracts did not embrace all of the agreements of the parties. We infer from the pleadings and evidence that appellants' property was subject to two mortgages, of $1,000 and $1,800, respectively, and that they agreed to have them released and execute another mortgage on the property for the same amount, but this does not clearly appear from the written agreements. If that was the understanding of the parties, it was not complied with before September 23, when appellants executed a mortgage or trust deed for $2,800 on their property, but the master reports that the evidence does not show that there was any consideration paid for the trust deed, and we do not find that the evidence shows this was untrue. It simply shows the execution of the trust deed on September 23, but there is no proof that appellee was ever notified of its execution. On some of his visits to appellants, appellee was told

by them that they had not been able to get a mortgage on the Lowe avenue property, and he objected to closing the deal until they had done that. Appellee testified, on one occasion of his visits to them about the matter, in September, they said they could not get a mortgage on their property, and offered to pay him a commission if he could get it. On most of the important parts of the testimony of appellants and appellee there were flat contradictions.

[1] We have reached the conclusion that, owing to the uncertainty and ambiguity of the contracts and the evidence of the respective parties, a decree for specific performance would not be justified.

[2] Counsel for appellants say in their brief they did not draw the contracts; that they do not believe they were drawn by a Blackstone, a Kent, or a Story, but do believe they are enforceable. This court has repeatedly held that to enforce the specific performance of a contract to convey real estate it must be unambiguous, complete in its terms, and clearly proven, and that it must express the terms agreed upon. In Westphal v. Buenger, 324 Ill. 77, 154 N. E. 426 (a specific performance case), the court, commenting upon the construction contended for, says:'

such a construction. While such may have been "The language of the contract does not justify the intention of the parties it does not appear

from the contract. A written contract is one which is all in writing, so that its terms and provisions can be ascertained from the instrument itself. [Citing authority.] To entitle a party to specific performance the contract must be clear and certain in its terms and be admitted or proved with a reasonable degree of certainty. [ Citing authorities.] An agreement in writing which does not purport to give an absolute right without further negotiations thereon cannot be specifically enforced."

The parties to this action are not native Americans, or at least they spoke English very imperfectly, and did not seem able to express themselves very clearly. We have spent considerable time on the case, but have been unable to construe the contracts as expressing all the intentions of the parties when considered in connection with their testimony, and conclude that the court did not err in rendering its decree.

The decree is affirmed. Decree affirmed.

(330 III. 624)

GAHAN v. GOLDEN. (No. 17734.) Supreme Court of Illinois. June 23, 1928.

1. Wills 601 (1)-Fee-simple estate, devised to wife in will, held cut down to life estate by subsequent provision that "residue" at wife's death should go to daughters (Conveyance Act, § 13).

Under Conveyance Act, § 13 (Smith-Hurd Rev. St. 1927, c. 30, § 12), fee-simple estate devised to wife held to be cut down to life estate, and remainder in fee devised to daughters, by addition of later clause in will that residue of estate at death of wife should go to daughters, share and share alike; "residue" not meaning what remains unexpended by widow.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Residue.] 2. Wills 450-Effect must be given each part of will, if possible, in determining testator's intention.

Whole will must be considered, and effect given to each sentence, word, or phrase, if possible to do so, in determining testator's intention.

3. Wills 634(14)-Under will providing that, after wife's death, all property shall go to children in equal parts, remainder to children is vested.

Where testator provides that, after death of wife, all property remaining shall go to children in equal parts, or share and share alike, remainder to children is vested.

4. Wills 470-Testator's intention must be ascertained from consideration of whole will. Intention of testator must be ascertained from consideration of whole will, and, if it was intended that estate should be less than fee simple, it is wholly immaterial in what part of will such intention is manifested.

5. Wills 593-Language of clause creating limitation must be as clear as that of first clause creating estate.

Language of clause creating limitation of estate in will must be clear as that of first clause creating estate; but, if it shows clearly any, intention to impose limitation on estate, such intention will be given effect.

6. Wills 634(14)—Under will leaving wife life estate, remainder to daughters, daughters' interest became vested at testator's death.

Where will left property to wife for life, remainder to 'daughters, share and share alike, interests of daughters became vested at death of testator.

7. Descent and distribution

17-Under will leaving wife life estate, remainder to daughters, interest of daughter's husband in testator's property became vested on daughter's death.

Under will in which property was left to wife for life, remainder to daughters, share and share alike, interest of daughter's husband in property of testator became vested on death of daughter, and husband immediately became

tenant in common with testator's widow and the other daughter.

8. Partition 12(5)-Remainder men in fee of undivided interests in land subject to unexpired life estate are entitled to partition. Remaindermen in fee of undivided interests in land subject to unexpired life estate under will are entitled to partition.

9. Wills 614(4), 622—Where testator leaves real and personal property to wife for life, remainder to children, wife takes life estate, and children remainder, in both real and personal property.

Where testator by will devises and bequeaths, after payment of debts and funeral expenses and specific legacies therein mentioned, all real and personal property to wife for life, and remainder to children, wife takes life estate in real estate and personal property, and children take remainder in both real and personal property.

10. Homestead 141 (1)-Widow may have homestead in realty devised to her, but never in personal property.

Widow may have homestead in real estate devised to her, if facts show that she is entitled to such estate; but she is never entitled to homestead in personal property.

11. Executors and administrators

190-De

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ty court may at subsequent term set aside order discharging executrix, and have allowed and paid widow's award, not previously done because of fraud, accident, or mistake.

County court, in exercise of its equitable jurisdiction, has jurisdiction at subsequent term to set aside order discharging executrix, and to have allowed and paid widow's award, where it was not previously done by reason of fraud, accident, or mistake.

13. Partition 74-In suit by deceased daughter's husband against mother for partition of property devised by defendant's husband, circuit court held authorized to adjudicate question whether defendant was entitled to widow's award (Administration Act, §§ 74, 76).

In suit by deceased daughter's husband against mother for partition of real estate devised by defendant's husband, circuit court held to have right to adjudicate question whether defendant was entitled to have award allowed and paid her under Administration Act, §§ 74, 76 (Smith-Hurd Rev. St. 1927, c. 3, §§ 75, 77), where defendant had administered husband's estate under misapprehension that she was entitled absolutely to all of real and personal property devised and bequeathed in residuary clause.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(162 N.E.)

14. Wills 675-Desire that life tenant give daughter musical education held not to impress corpus of property with trust for such musical education.

Where testator left wife life estate in property, desiring that she give daughter education in music, such desire held not to impress corpus of property with trust for such musical education.

15. Life estates 6-Widow held properly required to give security for corpus of personalty in which she was bequeathed life estate, notwithstanding testator's request that she be allowed to serve as executrix without bond,

Where testator bequeathed wife life estate in personal property, it was proper in partition suit to require widow to give personal security for actual amount of corpus of such personal property, notwithstanding clause requesting that widow be permitted to serve as executrix without usual bond.

16. Wills 440, 487(1)-Testator's intent as expressed in will must govern, and cannot be varied by oral evidence.

It is intent of testator as expressed in will that must govern in interpretation thereof, and such intent cannot be varied or defeated by resorting to oral evidence.

Appeal from Circuit Court, Clay County; F. R. Dove, Judge.

Suit by Meryl L. Gahan against Flora B. Golden and others. Decree for complainant, and defendant named appeals. Reversed and remanded, with directions.

Smith & Smith, of Flora, for appellant. Harold S. Williams, of Taylorville (Walter M. Provine, of Taylorville, of counsel), for ap-. pellee.

DUNCAN, J. Allen E. Golden, a resident of Clay county, died testate on July 31, 1918, seized of a large amount of real estate and possessed of several thousand dollars' worth of personal property. He left surviving him, as his only heirs at law, Flora B. Golden, his widow, and his two children, Marjorie M. Golden, of the age of 11 years, and Ruth E. Gahan, of the age of 21 years. His will was admitted to probate by the county court of Clay county and his widow was appointed and qualified as executrix. She administered the estate and paid the debts and legacies, and was by order of the county court discharged and the estate declared closed. By the second clause of his will, after providing for the payment of his debts and funeral expenses, Golden devised to his daughter Ruth a store building in the town of Flora, Ill., and bequeathed to her $1,000 of insurance covered by a policy in the Modern Woodmen of America. By the third clause of his will he bequeathed to his wife, to be held in trust for his daughter Marjorie until she reached the age of 18 years, 20 shares of stock of the First National Bank of Flora

and $1,000 of insurance covered by a policy in the Etna Life Insurance Company, which were to be kept invested and the interest accumulated until Marjorie reached the age aforesaid, at which time they were to become hers absolutely and the trust dissolved. The fourth and last clauses of the will provide as follows:

"Fourth-I give, devise and bequeath all the rest, residue and remainder of my estate, both real, personal or mixed, to my beloved wife Flora B. Golden, desiring of her only that she give to Marjorie an education in music such as was given Ruth.

"The residue of this my estate, at the death of my wife Flora B. Golden to go to my two daughters Ruth E. Gahan and Marjorie M.

Golden, share and share alike.

"Lastly, I make, constitute and appoint Flora B. Golden to be executrix of this, my last will and testament, hereby revoking all former wills by me made, and ask that she be permitted to serve as executrix without the usual bond."

It is disclosed by the pleadings and the evidence in the record that Golden was 60 years of age at the time of his death. He was a successful business man and trader and had land in Clay county. This land was in small accumulated approximately 1,000 acres of tracts, situated in three different townships. and was in the main unimproved and unproductive land, and the majority of it is referred to in the evidence as "thin" or "trading" land. He was also the owner of two business properties and 26 or more pieces of city property in Flora, some of which were vecant lots, and two of the lots were occupied by him as his homestead at the time of his death. He was possessed of personal property, consisting of cash, notes, mortgages, bonds, bank stock, judgments, tax sale certificates, cattle, mules, farming implements and other chattels, which, after the payment of his debts, funeral expenses, the specific legacies under his will, and the costs of the administration of his estate, amounted to $14,459.04. His will was executed a few days before his death, while he was in a hospital in St. Louis, Mo., awaiting an operation, which terminated fatally.

The entire will, with the exception of the signatures of the testator and the attesting witnesses and the concluding sentence in the fourth clause, was either printed or typewritten; the typewritten part having been inserted in the blank spaces of a printed form. The original will was certified and transmitted with the record for our inspection. The concluding sentence of the fourth clause was written with pen and ink, and is as follows:

"The residue of this my estate, at the death of my wife Flora B. Golden to go to my two daughters Ruth C. Gahan and Marjorie M. Golden, share and share alike."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

It is apparent, from an inspection of the original will, that the pen and ink sentence was inserted in the will after it had been first drafted with a typewriter, and it is in the handwriting of the attesting witness, J. O. Pride, an attorney whom the testator had employed to prepare his will.

At the time the will was executed the testator's daughter Ruth was married to appellee, Meryl L. Gahan. She had been given an education by her parents in music, voice culture, and harmony, and had been given three diplomas, one from the Kroeger School of Music of St. Louis and two from Forest Park University of St. Louis. She died intestate in 1920, leaving her surviving her husband, Flora B. Golden, her mother, and Marjorie M. Golden, her sister, as her only heirs at law. After the death of Ruth her husband filed his bill in the circuit court of Clay county against Flora B. and Marjorie M. Golden and others, alleging that by the last will and testament of Allen E. Golden his property, both real and personal, except that specifically devised and bequeathed to his two daughters under the second and third clauses of his will, vested in fee simple and became the absolute property of his two daughters at the death of the testator, subject only to a life estate therein of his widow, and that on the death of Ruth her share of the property devised and bequeathed to her by the will descended to her heirs at law, of whom her husband is one. The bill prayed for partition of the real estate between appellee, Flora, and Marjorie, and that Flora be required to state an account of all items of personal property received by her from the estate of the testator in which she has a life estate and that she exhibit such property to the court, and, if any such personal property has been converted to her personal use, the amount thereof be determined, and that she be required to account for the same.

Flora and Marjorie answered the bill and denied that the appellee had any interest in any of the real estate or personal property of which the testator died seized or possessed, and averred that all of the testator's property, both real and personal, not specifically devised under the second and third clauses of the will, became vested in Flora under the terms of the fourth clause of the will, in fee simple if real estate, and as her absolute property if personalty. All of the other defendants, who are interested as tenants or mortgagees or who hold other similar interests, adopted the answer of Flora and Marjorie as their answer to the bill. Replications were filed to the answers, and there was a hearing upon the issues formed by the court in open court.

There is virtually no dispute as to any of the facts in this case. The store building specifically willed to Ruth E. Gahan was disposed of and the proceeds thereof divided

among her husband, mother, and sister, and the personal property bequeathed to her descended to her husband. No question arises as to the property bequeathed to Marjorie M. Golden. It is therefore to be understood that all questions arising on this appeal relate solely to the residue of the property, real and personal, devised and bequeathed by the fourth clause of the will and described in the bill for partition.

Appellant contends that, under the proper construction of the fourth clause of the will, she is entitled to all of the real estate in fee simple devised by the testator by the fourth clause, and that she is the sole and absolute owner of all of the personal property thereby bequeathed. The court found that the testator, at the time of his decease, occupied two of the lots in Flora as his homestead, and that Flora B. Golden has continuously resided on said lots and occupied the same as a homestead, and is now entitled to a right of homestead therein, and that she is also entitled to a life estate in all the lands devised by that clause; that on the death of the testator the remainder in fee of the land so devised vested in Ruth E. Gahan and Marjorie M. Golden in equal shares, as tenants in common, subject to the rights of Flora; that upon the death of Ruth her share in such real estate descended to her husband, her mother, and her sister as her only heirs; that appellee is entitled to an undivided onefourth or three-twelfths, Flora to an undivided one-sixth or two-twelfths, and Marjorie to an undivided seven-twelfths of such remainder in fee, subject to the life estate and homestead right of Flora. The court further found that the share of appellee in the real estate is incumbered by a first mortgage given by him and Faun Gahan, his wife, to Lee T. Nichold for $1,500, and by a second mortgage given by him and his wife to A. J. Gahan in the sum of $2,500, which mortgages are liens on his share, and that no other persons have any interest in the real estate devised by the fourth clause of the will and described in the bill for partition. It was further ordered and decreed by the court that a division and partition of the premises be made among the parties in accordance with said findings, and commissioners were appointed to make such division and partition.

[1-5] Section 13 of our Conveyance Act (Smith-Hurd Rev. St. 1927, c. 30, § 12) provides that:

"Every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law."

Under that section of the statute, appellant would, under the first sentence of the fourth

(162 N.E.) devises a fee, the later clause, being the last. expression of the testator's intention, must prevail, and must be considered as intended to modify or abrogate the former provision, and that it does not matter whether the later provision immediately follows the clause or part of the will that devises a prima facie fee, or whether such later clause is found in some other portion of the will.

clause of the will, take a fee-simple estate in the lands therein devised, if the pen and ink clause had not been added. By the addition of this latter clause the interest of the widow in the real estate was cut down to a life estate, and the remainder in fee was devised to the two daughters of the testator, subject to the life estate and homestead of the widow, as decreed by the court. The plain meaning and provision of the pen and ink clause is that the residue of the real estate devised to the widow in the first sentence of the fourth clause, at the death of the testator's wife, is to go to his two daughters, Ruth and Marjorie. The word "residue," as defined by Bouvier in his Law Dictionary, means that which remains of something after taking away a part of it, "as the residue of an estate, which is what has not been particularly devised by will." So the property devised by the pen and ink clause to Ruth and Marjorie is the real estate devised by the first sentence of the fourth clause that shall remain at the death of their mother, which is clearly a feesimple estate, out of which was carved a life estate to the widow. This pen and ink clause was inserted in the will, according to the finding of the court, after the will had been first drafted with a typewriter but before the testator executed the will. This finding was clearly warranted.

Both sentences of the fourth clause of the will must therefore be considered as parts of the will and with equal claim upon the attention of those who shall construe the will. We are not at liberty to disregard the pen and ink clause or sentence any more than we are at liberty to disregard the first sentence of the fourth clause, unless the construction of the entire will results in a conclusion that such repugnancy exists between those two parts of the fourth clause as to make the second part or sentence void. It is elementary that the whole will must be considered, and effect given to each sentence, phrase, or word, if it is possible to do so, in determining the testator's intention. Giles v. Anslow, 128 Ill. 187, 21 N. E. 225. Where a testator provides that, after the death of his wife, all of the property remaining shall go to his children in equal parts, or share and share alike, the remainder to the children is vested. Strickland v. Strickland, 271 Ill. 614, 111 N. E. 592.

The decisions of this court have at all times given full force and effect to the provisions of our statute on conveyances, but we have at all times recognized that the concluding clause of that statute, "if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law," is just as binding on this court as are the words preceding that clause. We have repeatedly held, under this same statute, that where a later clause in a will is repugnant to a former provision of the will, which prima facie

There are two rules that also govern in construing a will, apparently falling under the provision of said statute. The first one is that the intention of the testator must be ascertained from a consideration of the whole will, and if it was intended that the estate should be less than a fee simple, it is wholly immaterial in what part of the will such intention is manifested. The second rule is that the language of the clause creating the limitation must be as clear as that of the first clause creating the estate, and if it shows clearly any intention to impose a limitation upon the estate that intention will be given effect. Glass v. Johnson, 297 Ill. 149, 130 N. E. 473; Giles v. Anslow, supra ; Meins v. Meins, 288 Ill. 463, 123 N. E. 554; Wiltfang v. Dirksen, 295 Ill. 362, 129 N. E. 159. See, also, Kales on Estates and Future Interests (2d Ed.) 156.

We have considered the argument of appellant that it is a rule of construction and the policy of our law to construe a will as giving the first taker a fee where such a construction is not inconsistent with the provisions of the will, and have considered all the cases cited by appellant where that rule applies. We are clearly of the opinion that the provisions of this will were properly construed by the circuit court as to the real estate thereby devised. Other cases relied upon by appellant to sustain her contention that the fee-simple title cannot be cut down by other clauses because of repugnancy are distinguishable.

In the cases relied upon which follow the rule laid down in Wolfer v. Hemmer, 144 Ill. 554, 33 N. E. 751, and Wilson v. Turner, 164 Ill. 398, 45 N. E. 820, words of inheritance are added, and gifts over are held to be void; but those cases only recognize that an attempted gift over is void, where words necessary at common law to give a fee simple in real estate or an absolute interest in personal estate are used. The gifts over in those cases are held to be void, because the first devise or bequest gives an absolute and unlimited right to the first taker to dispose of the property so devised or bequeathed. Such a devise of real estate cannot take effect as an executory devise, because the limitations are inconsistent with the absolute estate or power of disposition expressly given or necessarily implied by the will.

The pen and ink sentence was unnecessary to confer a power upon the widow to dispose of the fee in the realty or the corpus of the

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