APPEAL from the Circuit Court of Bond County; the Hon. QUINTEN
SPIVEY, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
This is an appeal from a decree of the circuit court of Bond County construing the will and codicil of Ernest E. Wise, who died testate and a widower on May 23, 1955, leaving surviving as his only heirs-at-law his brother, Dwight A. Wise, and his niece, the plaintiff, Lettie Wise, neither of whom was mentioned in the will and codicil. Following the testator's death but before the present action was filed by the niece, the brother Dwight A. Wise died leaving all interest which he may have had in said estate to the Illinois Masonic Home, a defendant herein. The other defendants to this cause are the First National Bank in Greenville, executor and trustee named in the will, and Florence Ward and First Christian Church of Greenville, beneficiaries under the testamentary trust.
The lower court found that the will was executed on September 6, 1950; that the codicil was made on May 19, 1952; that the testator's wife, Ida B. Wise, predeceased him on October 14, 1953; that the will and codicil had been regularly admitted to probate on August 12, 1955; that these instruments effectively passed all property owned by the testator at his death to the legatees named therein; and that neither the plaintiff, the brother, nor the Illinois Masonic Home had any interest in this property as heirs-at-law. Since the ownership of real estate is here involved, direct appeal has been taken by the plaintiff to this court.
The will itself, after providing in the first clause for the payment of debts and funeral expenses, goes on to dispose of the testator's property in the following manner:
The second clause states that all household goods and personal effects should be given to the testator's wife, Ida B. Wise.
The third clause bequeaths the remainder of said estate to the First National Bank in Greenville, as trustee, with directions to consult the wife during her lifetime as to the management of the trust estate and to pay to her during her lifetime such sums from principal or income as might be necessary for her comfort and support.
The fourth clause then says:
"In the event that my wife, Ida B. Wise, predeceases me, and I own real estate at the time of my death, the same having been held in joint tenancy by my wife and I during our lifetime, it is then my will and I hereby direct and authorize my said Trustee to sell and dispose of the same, or any other remaining real property that I may own or to which I may be entitled at the time of my death, hereby giving full power and authority to said trustee to execute deed or deeds of conveyance therefor without any court order in the premises."
The fifth clause authorizes the trustee to invest trust assets in a reliable life insurance company if prior written approval therefore is procured from the testator's wife.
The sixth clause is set out as follows:
"Any property remaining in the possession of my Trustee, or undisposed of at the time of the death of my wife, Ida B. Wise, it is my will that said Trustee shall sell the same with full power and authority as aforesaid, and out of the proceeds of the sale thereof, to pay any debts owing by my said wife, and also her funeral expenses, including any expenses of her last illness, and I hereby request that the remaining balance then in the hands of said Trustee be distributed as follows:
Said Trustee is hereby directed to make disposition and distribution of the remaining assets of said trust in its hands at the death of both Ernest E. Wise and Ida B. Wise, his wife, as follows:
(a) It shall set up an ample reserve, out of said assets, for necessary expenses incident to the administration of said trust, and otherwise, and for possible payment of taxes, insurance on and upkeep of our residence property located at 123 East Oak Avenue, Greenville, Illinois, same being Lot Number Thirty-eight (38) and the East Twenty-two (22) feet of Lot Number Thirty-seven (37) in Greenwood's Addition to the Town (now City) of Greenville, and any unused portion of such reserve, at the final termination of said trust, when the purposes of said trust have been fully carried out and final distribution made and any balance remaining, to be paid to Lincoln Bible Institute, of Lincoln, Illinois, and in the event the said Lincoln Bible Institute is not in active existence at that time, such unused reserve and remaining balance to be paid to the First Christian Church in Greenville, Illinois.
(b) After the death of myself and my said wife, said Trustee shall offer Miss Florence Ward of Greenville, Illinois, the use of our home at 123 East Oak Avenue, Greenville, Illinois, she to live in same and make same her home, as long as she lives in Greenville, if she so desires, the taxes and insurance on said property to be paid during the time of her occupancy from the money remaining in the above-mentioned reserve fund and the maintenance thereof as she sees fit to be paid by said Florence Ward. At refusal of said offer or the termination of her occupancy of said property, whether during her life or at her death, said property is to be sold by the above-named Trustee and the ...