APPEAL from the Circuit Court of Whiteside County; the Hon.
RAY I. KLINGBIEL, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
The plaintiffs, Helena Maria Stern, Oscar R. Stern, and Delores Stern Nelson, and defendant, Mary Lou Finkle, are appealing from a decree of the circuit court of Whiteside County, construing the will of Henry W. Stern, deceased, and ordering the division, sale, and distribution of decedent's estate substantially in accordance with the interpretation of defendants, Walter T. Stern, Emma M. Stern, Edwin Stern, Glenn Stern, Paul Stern, Elda Taylor, and Lola Hunsberger.
The salient inquiry presented by this cause is whether, under the terms and provision of the will of Henry W. Stern, the option given the testator's son Carl to purchase a specific tract of land, of which Carl was the lessee, within a designated period, passed to Carl's descendants upon his death before exercising the option.
The operative facts are uncontroverted. The decedent, Henry W. Stern, executed the will involved herein in 1935, when he was 73 years of age, and his second wife was 59 years old. At that time he owned, in addition to his homestead and the tract upon which it was situated, a farm of 160 acres leased and occupied by his son Carl, and another tract which was farmed by his son Walter. All of the property had formerly been farmed by the testator with the help of these sons. The testator's family consisted then of his second wife and their son Oscar, age 20, and his two sons by his first marriage, Walter, age 59, and Carl, age 48, and the daughters of his deceased son Alfred. At the time the will was executed, Carl had five children, defendants Edwin Stern, age 22, Paul Stern, 21, Glenn Stern, age 14, and two daughters.
Carl and his wife had made substantial improvements on the leased premises prior to the execution of the will in controversy, of which the testator was aware. Although the cost of these improvements is disputed, it appears that they included a cattle shed, a double garage, the installation of a bathroom and a complete water system, reshingling the corncrib and laying a cement floor in it, installing a cement drive, and a cement floor in the cattle shed.
Under the principal provisions of the will, the testator, Henry W. Stern, bequeathed to his wife the household goods, $2500, and the income therefrom, the use of the home for and during her lifetime, and a specific per annum income from the operation of the farm lands. Subject to the foregoing provisions and the options provided in the will, the testator devised all of his real estate to the executor to be converted into money or securities, with distribution thereof to be made among the children in equal shares. The option clause provides:
"I hereby give to my son, Carl F. Stern, the option to purchase my farm land [legal description of tract 1]. Said option to purchase shall be at a price of $100.00 per acre and shall be in effect for at least two years after the date of my death and for at least one year after the date of death of my said wife. Notice of the exercise of said option shall be given my executor within two years from the date of my death or within one year from the date of the death of my said wife whichever shall be the later period, and settlement shall be made by the first day of March next succeeding such notice."
Under the eighth clause of the will, the testator's son Walter is given a similar option to purchase tract 2, to be exercised within the same time limits, and on the same conditions. The ninth clause provides, in substance, that if either or both of said options are not exercised within the time specified the lands thus released from option shall be sold by the executor for the purpose of distribution of the proceeds thereof as provided in the fifth clause, except that said farm lands shall not be sold during the lifetime of the testator's wife. The tenth clause specifically states that the provision in the will for the benefit of the testator's wife shall be accepted by her in lieu of dower, homestead, widow's award, and all other rights that she would be entitled to in case of intestacy.
The eleventh clause provides: "All the rest, residue and remainder of my estate of every kind and character, I give, devise and bequeath to my children in equal shares, and in all clauses of this, my will, where I have made any gift or provision for my children, such terms shall be taken to include the descendants of any of my children who die prior to my death leaving descendants, such descendants to take their parent's share in equal shares, per stirpes."
The testator thereupon provided that certain charges be deducted from the shares because of advancements or obligations owed him by his children. Walter T. Stern and Oscar R. Stern are appointed trustees for the children of the deceased son Alfred, and the will establishes a trust on their behalf. Carl F. Stern is nominated as executor, and, in the event of his death, Walter T. Stern is designated.
The testator died February 18, 1949, and shortly thereafter on March 11, 1949, his son Carl died, leaving a will whereby his widow, Emma M. Stern, was designated as his sole heir and devisee. Both wills were admitted to probate on March 21, 1949, and Walter T. Stern was appointed executor of the will of Henry W. Stern, and Emma Stern was appointed executrix of the will of Carl F. Stern.
On June 29, 1949, Helena Maria Stern, the widow of Henry Stern, renounced the provisions of the will, and elected to take in lieu thereof her statutory share in the estate. This partition proceeding was thereupon instituted by her, her son Oscar, and Delores Stern Nelson, the daughter of the deceased son Alfred. In their prayer for relief, plaintiffs seek a construction of the will, particularly a determination that the option given Carl, under the seventh clause of the will, to purchase tract 1 at any time within one year after the death of the widow of the decedent, was personal to Carl, and cannot upon his death be exercised by persons claiming under him. Plaintiffs also request a sale of the premises if partition cannot be made, and a determination of the manner in which the option given Walter under clause 8 shall be exercised.
In their reply thereto, defendants assert that the option given to Carl under the will was not personal to him, but was an interest which passed to his widow, Emma, as his sole devisee, and may be exercised by her. In support thereof, defendants allege that in reliance upon the provisions of the will which were communicated to Carl during the lifetime of the testator, Carl continued in possession of tract 1 and made valuable and extensive improvements upon the property, which would not have been made except for the fact that Carl considered the word "option" in the will to be used in the sense of a contract to sell, otherwise he would have purchased other farm lands at that price and made similar improvements. A similar claim was made by defendant Walter Stern with reference to the "option" granted to him. Defendants further asserted that the widow, by her renunciation, was entitled to take one third of each tract of land, but subject to the respective contracts of purchase, and that if a sale is directed, she is entitled only to $33 an acre from the proceeds.
The court allowed plaintiffs' motion to strike the parts of the answer referring to the improvements made by Walter and Carl, to the allegations that the word "option" was used as a contract in the will, and to the assertion that the widow was entitled only to one ...