APPEAL from the Circuit Court of Moultrie County; the Hon.
GROVER W. WATSON, Judge, presiding.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1955.
Plaintiffs-appellants appeal directly to this court from a decree of the circuit court of Moultrie County dismissing for want of equity a bill for partition and accounting. A freehold being involved, this appeal properly comes to this court.
Barnabas W. Fulton died testate in Moultrie County on January 10, 1895, leaving surviving him a widow and two sons, viz: Barney Fulton, a son by a former marriage, and the defendant, Isaac W. Fulton, a son by his last marriage.
The will of Barnabas W. Fulton, which was duly admitted to probate in Moultrie County, by its first paragraph devised to the surviving widow, in fee simple, 160 acres in Shelby County. The second paragraph of said will, which is the paragraph here in issue, provided as follows:
"I give and devise to my beloved son Barney Fulton the Southeast Quarter of Section 5 in Township 15 North of Range 6 East of the Third Principal Meridian in the County of Moultrie and State of Illinois, to have and to hold the said Quarter Section during his natural life with no power to sell or dispose of said life estate with remainder in fee simple to the heirs of his body and in case he should die without children or descendants of children then said real estate to descend to his nearest of kin according to the rules of descent as declared by the Statute of the State of Illinois."
The third paragraph of said will made a devise of another quarter section of farm land in Moultrie County to the defendant Isaac W. Fulton in identical language. The fourth paragraph of said will contained directions concerning the possession and rental of the testator's farm lands until certain mortgages were discharged, and the fifth paragraph appointed the surviving widow executor.
After the death of Barnabas W. Fulton, his son Barney Fulton went into possession of the quarter section of land described in the second paragraph of said will and continued in possession until he died intestate on January 21, 1930, leaving him surviving his widow, Lou Fulton, and the defendant, Isaac W. Fulton, as his sole heirs-at-law. Since the death of Barney Fulton, the defendant Isaac W. Fulton has collected all rentals from the quarter section of land described in paragraph 2 of the will of Barnabas W. Fulton and has paid all taxes thereon.
Lou Fulton, the surviving widow of Barney Fulton, died testate in 1942, and the plaintiffs-appellants are the residuary beneficiaries under the terms of her will, or their alleged successors in title.
The bill for partition and accounting filed by plaintiffs-appellants alleges that an undivided one-half interest in the quarter section of land in question vested in Lou Fulton at the death of her husband, Barney Fulton, under the terms of the second paragraph of the last will of Barnabas W. Fulton, and that the other half vested in the defendant, Isaac W. Fulton. The answer filed by defendants-appellees alleges that the widow of Barney Fulton is not within the meaning of the term "nearest of kin according to the rules of descent as declared by the Statute of the State of Illinois," as used in paragraph 2 of the last will of Barnabas W. Fulton, and also pleads the twenty-year Statute of Limitations as a bar to the claim of plaintiffs-appellants.
The trial court, in dismissing the complaint for want of equity, held that paragraph 2 of the will of Barnabas W. Fulton vested title to the quarter section of land in the defendant, Isaac W. Fulton, as the nearest blood kin of Barney Fulton, on his death, to the exclusion of the surviving widow of Barney Fulton, and that the plaintiffs were further barred by the twenty-year Statute of Limitations.
The assignment of errors presents two issues for decision by this court. First, the proper legal construction of the will of Barnabas W. Fulton, deceased, and second, the application of the defense of the twenty-year Statute of Limitations.
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 ...