APPEAL from the Circuit Court of Coles County; the Hon. ROBERT
F. COTTON, Judge, presiding.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1955.
Defendants-appellants appeal from a decree of the circuit court of Coles County construing the last will of George W. Stites and ordering partition of certain real estate. A freehold being directly involved, this appeal properly comes to this court.
George W. Stites died in Coles County on September 21, 1899, leaving no children or descendants of deceased children nor adopted children and no parents, but leaving surviving him Lucinda Stites, his widow, and six brothers and sisters, there being no descendants of deceased brothers or sisters.
On September 12, 1899, George W. Stites had made a last will, which was subsequently admitted to probate in Coles County, the dispositive clause of which read as follows:
"I give, devise and bequeath to my beloved wife, Lucinda Stites, all my property, both real and personal, including the 160 acres of land where I now live for the term of her natural life, and after her death I desire the real estate to pass by the law of descent the same as though I had made no will. It is my desire that the remainder after such life estate in my said wife shall vest at my death in such persons as would be my heirs by the law of descent. This applies to the real estate only. The personal property I give to my wife absolutely to own, use and dispose of as her own."
Appellants are the heirs-at-law and devisees of Lucinda Stites, the surviving widow of the testator, who died on April 30, 1953. Appellees are the descendants and heirs of the six brothers and sisters of the testator, all of whom have died since the testator's death.
It is contended by the appellants that Lucinda Stites, the surviving widow, was an heir of the testator and was therefore under the terms of his will entitled to a life estate in the land in question and a one-half interest in the remainder. Appellees contend that the surviving widow was not an heir of the testator within the meaning of that term as used in the will and that she was during her lifetime entitled to no interest in the remainder in said land, and the trial court so held.
The assignment of errors presents but one basic issue for our decision and that is: whether or not the trial court erred in finding that Lucinda Stites, the surviving widow, was not an "heir" of George W. Stites within the meaning of that term as used in the will of George W. Stites.
As established by a long line of decisions of this court and as restated in the recent case of Sloan v. Beatty, 1 Ill.2d 581, the paramount rule of testamentary construction is that the intention of the testator as expressed in his will governs the distribution of his estate, and the intention of the testator, once it has been ascertained, will be given effect unless to do so would violate some settled rule of law or would be contrary to public policy. All rules of construction yield to the intention of the testator as expressed in the will and no rule of construction will be applied to defeat that intention. Effect must be given to the whole will, and the testator's intention cannot be determined from the language of any particular clause, phrase or sentence. Since wills are seldom exactly alike, the precedents in other will cases are seldom of controlling importance in determining the intention of the testator as expressed in the particular will under construction.
The word "heirs" in its technical sense applies to those persons appointed by law to inherit an estate in case of intestacy. (Le Sourd v. Leinweber, 412 Ill. 100.) Being a technical word of fixed legal meaning the word "heirs" will be given its legal effect when used in a will even though the testator uses inconsistent words, unless such inconsistent words are of such nature as to make it clear that the word "heirs" was not used in its proper legal sense. Le Sourd v. Leinweber, 412 Ill. 100; Richardson v. Roney, 382 Ill. 528.
However, as stated in In re Estate of Fahnestock, 384 Ill. 26, this court has frequently held that the word "heirs" when used in a will does not necessarily have a fixed meaning. It may mean children or, where there are no children, it may mean some other one class of heirs (not including all the heirs) if the context of the entire will plainly shows such to have been the intention of the testator.
Greater latitude is allowed in the construction of a will than is allowed in the construction of a deed, (Duffield v. Duffield, 268 Ill. 29; Webbe v. Webbe, 234 Ill. 442,) and though the technical meaning of the word "heir" will ordinarily prima facie prevail, such meaning will not be given effect to the extent of defeating the obvious general intention of the testator. (Johnson v. Askey, 190 Ill. 58; Blackmore v. Blackmore, 187 Ill. 102.) In Black v. Jones, 264 Ill. 548, at page 557, the court said in this respect as follows: "The widow's status, as such, is created by statute, and in the general sense in which the word is usually used and understood a widow is not spoken of as an heir. (Unfried v. Herber, 63 Ind. 67; McNutt v. McNutt, 116 Ind. 545.) In this State the widow does not take real estate as heir where there is a child or children or descendants of a deceased child or children. (Hurd's Stat. 1913, chap. 39, sec. 1, par. 4.) The phrase `heir-at-law' is commonly and rightfully used to indicate the heirs at common law, the next of kin by blood. (21 Cyc. 427; Meadowcroft v. Winnebago County, 181 Ill. 504; and Smith v. Winsor, 239 Ill. 567.)"
The testator in this case having died in the year 1899, leaving no child or children or descendants of a child or children, but leaving a widow and brothers and sisters surviving, one half of the real estate and the whole of the personal estate would have descended to the widow as an absolute estate forever and the other half of the real estate would have descended in equal parts among the brothers and sisters of the deceased according to the Illinois law of descent then in force. (Hurd's Stat. 1915-1916, chap. 39, sec. I, par. 3.) Accordingly the surviving ...