APPEAL from the Circuit Court of Macoupin County; the Hon.
L.E. WILHITE, Judge, presiding.
MR. JUSTICE GUNN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 17, 1950.
This is an appeal from a decree of the circuit court of Macoupin County, partitioning certain real estate which passed under the will of Jonathan Plowman, who died February 19, 1900, leaving surviving him seven children, and leaving a certain last will and testament which was admitted to probate.
The case concerns property which was devised to his daughter Rachel Plowman by the sixth and ninth paragraphs of his will. By the sixth paragraph of the will it was provided:
"SIXTH: I give and bequeath to my daughter Rachel Plowman, the east half of the northeast quarter, and the northeast quarter of the southeast quarter, all in Section two (2), Township twelve (12), North, Range Seven (7) West of the third Principal Meridian, in Macoupin County, Illinois.
and the ninth paragraph of the will reads as follows:
"NINTH: I give, devise and bequeath to my daughters, Mary E. and Rachel Plowman, my homestead in Virden, described as follows, to-wit: Lots eight (8), nine (9) and twelve (12), also Lots one (1), four (4), and five (5) all in block forty-three (43), in Hickox and Others Addition to the Town (now City,) of Virden, also Out Lot "H" in said addition to the City of Virden, all being in the County of Macoupin and State of Illinois, also all of my personal estate of every kind which my said daughters are to take without appraisement."
The controversy concerns the construction of the eleventh paragraph of the will, which provided:
"ELEVENTH: In the event of the death of any of my said children, without leaving them surviving lawful issue, I direct that the portion devised to such child be distributed share and share alike among my said children then surviving."
Of the seven children of Jonathan Plowman, Emily Cheney died January 17, 1917, leaving surviving issue; Mary E. Plowman died August 19, 1920, leaving no issue. She was survived by five of her brothers and sisters, viz., Adoniram J. Plowman, who died August 9, 1921, without issue; Charles Plowman, who died January 13, 1927, leaving issue; Edward Plowman, who died January 14, 1931, leaving issue; Hattie Cooper, who died July 6, 1931, leaving issue; and Rachel Plowman, who died without issue on January 14, 1948. It is to be noted that Rachel Plowman, who died without issue, was not survived by any of the other children of the testator.
It is the contention of the plaintiffs-appellees that, upon the death of Rachel without issue, her interest was divested by operation of paragraph II of the will, and that such interest then became vested in such persons as were the heirs-at-law of Jonathan Plowman, determined as of the date of Rachel's death.
The defendants-appellants contend that paragraph II does not operate to divest the fee-simple estate devised by paragraphs 6 and 9 to Rachel, for the reason that Rachel had no brothers and sisters surviving at the time of her death, and that the will and the eleventh paragraph must be read as a whole, and that the testator's intent was to divest the estate devised to Rachel only in the event she died without lawful issue surviving her, and was survived by other children of the testator.
The lodestar of will construction is to ascertain the intention of the testator. When the intention is ascertained it will be given effect by the court if it is lawful, is not against public policy, and not contrary to words having a fixed or technical meaning. (Lawson v. Illinois Merchants Trust Co. 337 Ill. 49.) To ascertain this intention the entire will must be examined so each clause may be given effect, and in ascertaining this intention certain elementary rules applying to testamentary disposition must be observed, among which are: (a) the language construed must be found within the four corners of the instrument (Halderman v. Halderman, 342 Ill. 550;) (b) a construction should be given avoiding intestacy of the whole or any part of the property, if possible, (Hartwick v. Heberling, 364 Ill. 523;) (c) give the language used its ordinary common meaning, unless other language manifests that it be used in a special or limited sense, (Carlin v. Helm, 331 Ill. 213; McClure v. McClure, 319 Ill. 271;) (d) render a construction that will vest the whole title in the earliest taker, the first if possible, (Bradsby v. Wallace, 202 Ill. 239; McFarland v. McFarland, 177 Ill. 208; Davis v. Ripley, 194 Ill. 399.) And even technical rules will not be permitted to defeat the intention of the testator when not in violation of law. Lawson v. Illinois Merchants Trust Co. 337 Ill. 49.
Having regard for such rules of construction, we observe that by the sixth paragraph of the will of Jonathan Plowman there was a plain devise to Rachel Plowman of one hundred twenty acres by the use of the words "I give and bequeath." Were the same language used in a deed, transposing the words "convey and warrant" for those of "give and bequeath," a fee-simple title would result under the statute of Illinois. (Ill. Rev. Stat. 1949, chap. 30, par. 8.) The same result would apply to paragraph 9, devising the homestead, except that Rachel was given a half interest only therein, with ...