APPEAL from the Circuit Court of Sangamon County; the Hon.
DeWITT S. CROW, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 21, 1952.
Katie M.A. Peck filed in the circuit court of Sangamon County a bill to construe the joint will of Charles F. Drennan and Kate Haire Drennan, husband and wife. Donald H. Drennan, B. Homer Drennan, individually and as executors of the will of Charles F. Drennan, deceased, Jane Ann Drennan, and John Charles Drennan, and the unborn descendants of Donald H. Drennan and Katie M.A. Peck were made parties defendant. On March 3, 1951, the defendants filed their motion to dismiss the plaintiff's complaint. The plaintiff elected to stand by her complaint and the court entered a decree dismissing the complaint. From the decree dismissing the complaint an appeal has been prosecuted to this court.
On January 25, 1932, Charles F. Drennan and Kate Haire Drennan executed their last will and testament, properly signed and attested. Kate Haire Drennan died testate in Sangamon County on December 20, 1936. On February 2, 1937, the will here sought to be construed was filed and admitted to probate as the last will and testament of the said Kate Haire Drennan. At the time of her death she owned some personal property not here involved and 79 1/3 acres of land, individually, in Sangamon County. She owned in common with her husband some 500.44 acres located in Sangamon County. At that time her husband owned individually 165 1/3 acres located in Sangamon County. On November 14, 1949, Charles F. Drennan departed this life in said Sangamon County. On December 2, 1949, the same last will and testament was again filed in the office of the probate clerk of Sangamon County, as the last will and testament of the said Charles F. Drennan, deceased, and on December 23, 1949, by order of the probate court of Sangamon County, was admitted to probate as the last will and testament of Charles F. Drennan.
The will of January 25, 1932, was jointly executed by Charles F. Drennan and Kate Haire Drennan. After directing the payment of all just debts and funeral expenses, and bequeathing the personal estate of each to the survivor of them for life, they divided their lands, that which they owned both individually and in common, into three separate farms, devising one farm each to their children, Katie M.A. Peck, Donald H. Drennan, and B. Homer Drennan, for life and thereafter to the heirs of their body in fee simple, forever. It was then by the sixth clause stated, that, "We, and each of us, hereby mutually agree, and the above described real estate is hereby devised to our said children on condition, that each of said children is to have the use and possession of one-half of the real estate devised to such child, from and after the death of one of us."
Provision was made for the distribution of the real estate should any child die leaving no surviving heirs of the body, and should all three children die leaving no descendant. The surviving testator was nominated as executor with Donald H. Drennan, or, in case of his death or inability to act, then B. Homer Drennan to act, as co-executor with the survivor. Upon the death of the surviving testator both Donald and B. Homer, or the survivor of either, were to act as executors.
Upon the death of Kate Haire Drennan, Charles F. Drennan and Donald H. Drennan became executors under the will. On April 1, 1938, they filed their final report and were discharged as such executors. Upon the death of Kate Haire Drennan, Charles F. Drennan, her husband, took possession of the real estate described in the joint will as devised to Donald H. and B. Homer Drennan, respectively, and continued so in possession until his death, receiving all rents, issues and profits from such lands. Charles F. Drennan allowed appellant to have the use and possession for her lifetime of all real estate described as devised to her in the will.
In her complaint the appellant alleged that the provisions of the will were ambiguous and doubtful, setting forth two possible meanings for the clauses of the will whereby the lands of the two parties were devised to their three children. One meaning (A) alleged for the will was that each child was to take a life estate in one half of the lands of Kate Haire Drennan in possession and a life remainder in the other half, subject to a life estate in such half by implication to her husband, Charles F. Drennan. A second meaning (B) alleged that the sixth clause (set out above) might mean that each child was to take a life estate in one half of the lands of Kate Haire Drennan in possession and a life estate in remainder in the other half subject to a life estate in such half by implication in Charles F. Drennan, subject to a condition precedent that Charles F. Drennan permit them to occupy one half of the lands owned by him during his lifetime.
Uncertainty was also alleged as to whether the will was intended to be the separate will of each testator or a joint disposition of their property, as to who were to be executors and their duties, as to when title was to vest in devisees, as to the interests of the heirs on Kate Haire Drennan's death, as to where the land would vest on death of two or more of the children, as to what estate is taken by surviving testator in the estate of deceased, as to the interests of appellant in Charles F. Drennan's real estate, and as to the disposition of the residue of real estate of each testator upon the death of the survivor.
Katie M.A. Peck now prosecutes this appeal, contending the will is ambiguous and uncertain as alleged in the original complaint before the circuit court, and that the said court erred in decreeing the dismissal of such complaint.
The court will take jurisdiction to hear and determine bills to construe wills where there is doubt or uncertainty as to the rights and interests of the parties arising under such wills. (Sherman v. Flack, 283 Ill. 457.) Just as certainly, the court will refuse to assume jurisdiction of a bill to construe a will which is neither ambiguous nor uncertain, where there is no equitable estate to be protected or equitable right to be enforced. The court never acquires jurisdiction to construe a will merely by allegation that a question requiring construction exists, when the record shows there is no such question. Bartlett v. Mutual Benefit Life Ins. Co. 358 Ill. 452; Chicago Title and Trust Co. v. City of Waukegan, 333 Ill. 577.
"A joint will is a written instrument executed and published by two or more persons disposing of the property, or some part of the property, owned jointly or in common by them or in severalty by them. On the death of the testator first dying it is subject to record and probate as his will, and on the death of the surviving testator it is subject to probate as his will." (Curry v. Cotton, 356 Ill. 538.) The will here under consideration was executed by a husband and wife disposing of their real estate owned in common and in severalty by them. The dispositions directed were to be upon the death of each testator. The will was probated as the will of the wife, Kate Haire Drennan, and was admitted to probate as the will of Charles F. Drennan, her husband. It was jointly executed, and properly attested. The instrument, in the absence of any defects, falls under the foregoing definition and is a joint will.
It is a general rule of law that joint wills are irrevocable without notice, and generally it is required that such wills are executed in pursuance of a compact or contract between the executing parties, the promise of each being consideration for the other. The rule of irrevocability is particularly applicable where the joint will is that of a husband and wife. Due to the relationship of mutual trust and confidence imposed by such status, it may be presumed that the provisions are induced by the mutual love, respect for, and faith which, the parties have in each other. The consideration thus arising from the relationship, and the fact of the joint execution of the instrument, gives rise to the presumption of a contract or agreement between the parties, husband and wife. By notice of revocation such will may be made ...