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Finnerty v. Neary

OPINION FILED NOVEMBER 26, 1956.

LUKE N. FINNERTY ET AL., APPELLEES,

v.

JOHN L. NEARY ET AL., APPELLANTS.



APPEAL from the Circuit Court of La Salle County; the Hon. WILLIAM I. HIBBS, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

A decree of the circuit court of La Salle County construed the wills of Abigal Neary and Eliza Neary and fixed the interests of the plaintiffs and defendants in four parcels of real estate. Defendants appeal and the plaintiffs cross-appeal.

Abigal Neary died testate in 1892. She was survived by six children, John, James, Eliza and Alice Neary, Abby Finnerty, and Ellen Farrell, her only heirs-at-law. Plaintiffs are children and grandchildren of Abby Finnerty. Defendants are the widow, children and grandchildren of John Neary. James, Eliza and Alice Neary and Ellen Farrell all died without descendants. James Neary died intestate and his three sisters last named died testate. By inheritance and by devise the descendants of Abby Finnerty and John Neary have acquired interests in the land that had been owned by Abigal Neary. There is no dispute within the Finnerty family, and none within the Neary family. The controversy concerns the proper division of the property between the two families.

Both plaintiffs and defendants accept the decree to the extent that it relates to some of the land owned by Abigal Neary at her death. But neither plaintiffs nor defendants are satisfied with the decree to the extent that it fixes the rights and interests of the parties in the parcel known as tract II, on which valuable sand deposits are located, and plaintiffs' cross appeal also challenges the decree with respect to parts of tract IV.

The principal dispute centers about the construction of the fourth and fifth clauses of Abigal Neary's will. By the fourth clause she devised tract II to her daughters, Eliza and Alice Neary, "during their natural lives, said Eliza Neary to have the right to dispose of her portion said real estate in fee by her last will and testament." By the fifth clause she devised another tract to her son John, and also "a one-half interest in any sand or clay pits that may be worked on the lands devised to Eliza and Alice Neary, one of which is now worked by Phelps and Phelps, also the right to take timber and coal for his own use from the land devised to said Alice and Eliza Neary. And the said John Neary shall have the right to dispose of said real estate in fee by his last will and testament."

Thereafter, Abigal added a codicil to her will which provided: "In the fifth clause of my said Will I did among other things give devise and bequeath to my son John Neary a one half interest in any sand or clay pits that may be worked on the lands devised to Alice and Eliza Neary. Now I do hereby give devise and bequeath all of the interest in said sand or clay pits to said Alice and Eliza Neary share and share alike."

Plaintiffs contend that by the fourth and fifth clauses of Abigal's will, and by the codicil, Eliza Neary took a life estate in one half of tract II with the power to dispose of that half by her will, and that her sister Alice took only a life estate in the other half without any power of disposition, by will or otherwise. The latter half interest, on this theory, descended as intestate property to the heirs-at-law of Abigal Neary. Defendants contend that these provisions read together show an intention to give Eliza and Alice equal interests in the sand deposits on the lands devised to them. The gist of their contention is that Abigal Neary severed the sand deposits and treated them as a separate estate, and devised the fee in the sand to Eliza and Alice. The chancellor determined this issue in favor of the plaintiffs, and in our opinion he was correct in doing so.

Defendants point out that under the construction adopted by the chancellor, the one-half interest in tract II devised to Alice Neary for life remained intestate property, and they argue that a construction that produces such a result should be avoided. They urge that the provisions of the codicil which increased the devises to Abigal's other daughters, Ellen Farrell and Abby Finnerty, from a life estate to a fee sustain their position. They suggest that the purpose of the entire codicil was "to place the gift of property to her daughter Alice Neary on the same basis as the devise to her daughter Eliza, giving them both a fee, and increasing the life estate to her other two daughters, Abby Finnerty and Ellen Farrell, to a fee." They direct particular attention to the words, "Now I do hereby give devise and bequeath all of the interest in said sand or clay pits to said Alice and Eliza Neary share and share alike," and they urge that the words "share and share alike" indicate how it was intended that the beneficiaries participate in the property, and that when the testatrix devised "all of the interest in said sand or clay pits to said Alice and Eliza Neary share and share alike" she must have intended that each take the sand and clay pits in equal shares. Defendants also argue that if Abigal intended by the codicil only to revoke the devise made to John Neary in the fifth clause of her will of "a one-half interest in any sand or clay pits that may be worked on the lands devised to Eliza and Alice Neary," it was not necessary to mention her daughters in the codicil. A simple revocation of the provision for John Neary in the fifth clause would have accomplished that purpose.

The fourth clause, standing alone, disposed of tract II, including all interest in the sand. The fifth clause gave her son John "a one-half interest in any sand or clay pits that may be worked on the lands devised to Eliza and Alice Neary, * * *." It is upon this language that defendants contend that a separate estate was created in the sand. Separate estates may be created in minerals, as defendants state, and such separate estates are deemed real estate. (Jilek v. Chicago, Wilmington & Franklin Coal Co. 382 Ill. 241; Kinder v. La Salle County Carbon Coal Co. 301 Ill. 362.) We incline strongly to the view, however, that the fifth clause shows no more than an intent to give her son John one half of the income from such sand and clay pits as might be worked during his lifetime, that he was to have no interest in any sand until sand was mined, and that no separate estate was created. But we do not specifically decide that question, for the outcome is the same whichever way it is decided.

Defendants' argument that the construction adopted by the trial court results in partial intestacy is not convincing. There is partial intestacy under any construction. The codicil does not purport to revoke the fourth clause of the will. Under the interpretation urged by defendants, Alice Neary would have received only a life interest in tract II with no power of disposition under the will, but would have received a fee interest in the underlying sand with power of disposal. No purpose to be served by such a discrimination is suggested and nothing in the language of the codicil shows such an intent. The codicil deals with the interest given to John in the fifth clause of the will. Even if the will be interpreted as creating a separate estate in the sand, the interest devised to John was not a fee, and it was that interest that the codicil devised to Eliza and Alice, "share and share alike."

When Abigal intended to create a fee interest, she knew how to do it. By the second clause of her will, she had made devises to Ellen Farrell and Abby Finnerty for life and after their death to their children "share and share alike in fee." She made a like devise to her son James. By the fourth clause, she provided that Eliza Neary should have the right to dispose of her portion of tract II in fee by her will. By the fifth clause she made the same provision for her son John. By the second clause of the codicil, she provided that the property devised in the will to her daughters, Ellen Farrell and Abby Finnerty, for life be given to them absolutely forever, "to sell and dispose of the same as they see fit." There is a complete absence of explicit language of this kind in the clause of the codicil on which defendants rely.

An examination of a photostatic copy of the original will confirms our conclusion. The draftsman wrote it in longhand. The fourth clause as originally drafted devised tract II to Eliza and Alice Neary "during their natural lives, they to have the right to dispose of said real estate in fee by their last will and testament." An interlineation changed the fourth clause to give the property to Eliza and Alice Neary "during their natural lives, said Eliza Neary to have the right to dispose of her portion said real estate in fee by her last will and testament." From the face of the will it thus appears that Abigal Neary intended to treat Eliza and Alice differently. To the one was given the power to dispose of the fee by her will; this power was consciously withheld from the other.

It is true that it was not necessary to mention Eliza and Alice in the codicil. But from the fact that the testatrix did mention them it does not follow that she intended the result for which defendants contend. Our task is to ascertain the intention of the testator and give it effect unless it violates an established rule of law or public policy. (Vollmer v. McGowan, 409 Ill. 306; Riddle v. Killian, 366 Ill. 294.) The provisions of the will and codicil are to be construed as a whole and effect given, if possible, to every part ...


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