APPEAL from the Circuit Court of Knox County; the Hon. BURTON
A. ROETH, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
This case involves a suit by the residuary devisees to have certain provisions of the will of Mary Weir Deatherage construed. It is the plaintiffs' contention that the will as written is clear and unambiguous and that no extrinsic evidence as to the testatrix's intent is, therefore, admissible. The defendant, William Leafgreen, on the other hand, contends by counterclaim that certain language in the will is ambiguous and that the admission of extrinsic evidence, the nature of which is hereinafter set forth, establishes the existence, at the death of the testatrix, of an option on his part to purchase certain real estate. The counterclaim herein discloses that this alleged option was exercised by the appellant and that he tendered the purchase price specified in the will to the testamentary trustee. The circuit court of Knox County, on plaintiffs' motion, entered a decree dismissing the counterclaim for want of equity and refused to allow the filing of an amended counterclaim. This order provided that as to those issues decided by the dismissal there was no reason for delaying its enforcement or an appeal therefrom. The title to a freehold is so put in issue by the pleadings that the determination of the case necessarily involves a decision with respect to the ownership of the property in question and this court has jurisdiction of this appeal. Ashton v. Macqueen, 361 Ill. 132; Bromberg v. Kulp, 398 Ill. 449; Sandra Frocks, Inc. v. Ziff, 397 Ill. 497; Schiro v. Gould & Co. 18 Ill.2d 538.
No construction of the will as written, without resort to extrinsic evidence, was made by the trial court. The issue before this court is, therefore, simply whether or not extrinsic evidence should be considered by the trial court to aid in its construction of this will.
The will contains four main articles, the first two of which provide for the transfer of property through the exercise by designated individuals of options to purchase (one stated to have been executed inter vivos). The money received through the exercise of these options is then directed to be paid by the trustee to designated charities and individuals. Then follows an extensive article wherein numerous household and personal items are given to various persons, including appellant and his wife, and one charitable institution. Finally, article IV provides for the sale of an antique violin and "the Henderson property" and for the disposition of the residue of the estate to certain of the appellees, who are, or whose parents were, nieces and nephews of decedent.
The provision under question, section I of article II of the will, provides as follows:
"Since my late husband's death, William Leafgreen and I have farmed the farm land owned by me on the partnership basis I furnishing the land, and he furnishing the equipment and doing the farming. The proceeds of anything sold from the farm has been divided equally. The said William Leafgreen has a ten-year lease expiring on March 1, 1948, and, in the event of my death prior to said expiration, it is my Will that my Trustee herein be appointed to extend said lease for an additional period of five (5) years on the same terms and conditions in the event said William Leafgreen desires to have the same so extended. In accordance therewith, I give, devise and bequeath to the First Galesburg National Bank & Trust Company of Galesburg, Illinois, as Trustee, for the uses and purposes as hereinafter set out, my farm consisting of One Hundred Seventy-three (173) acres, more or less, my undivided one-half interest in any livestock, grain, hay or other produce owned by me in connection with said farming operations, plus Twenty-five Hundred ($2500.00) Dollars to be kept on hand as a working capital for the purchase of additional livestock and feed for same as needed, said Trustee to continue the operation of said farm, as aforesaid, and to extend said partnership agreement and lease with said William Leafgreen to March 1, 1953, at which time, or within thirty (30) days thereafter, said William Leafgreen is to be given the right, privilege and option of purchasing said farm for the sum of Ten Thousand ($10,000.00) Dollars cash, and my said Trustee is hereby authorized to execute a good and sufficient deed for said property upon payment of said sum, as aforesaid, without notice, hearing or court order. It is my further Will, instruction and direction that said Trustee, as soon after the receipt of said Ten Thousand ($10,000.00) Dollars as is practical, shall make distribution of same as follows:"
(Paragraphs (1) through paragraph (6) of this section provide that various amounts of this $10,000 are to be paid to certain charitable institutions and to certain individuals, including each of Leafgreen's children.)
"(7) During the last year of the extended lease with William Leafgreen, as aforesaid, all cattle and hogs are to be fed and marketed, except twenty-five (25) head of cows and heifers and twenty-five (25) head of brood sows, same to be selected by William Leafgreen and my Trustee, my half interest of this to be given to him. He also to have all grain and hay left on premises upon the expiration of his renewed lease.
"(8) All cash remaining in the hands of my Trustee from farming operations carried on by it after my death and from the sale of the livestock not going to William Leafgreen to go to the same persons mentioned in Number 6 of this Article II."
Appellant alleged in his counterclaim that he was associated with the decedent and her husband either as an employee or tenant for almost 50 years, until her death in 1960. Since 1919 until decedent's death appellant took care of the grounds and garden at decedent's residence 1 1/2 miles away and delivered to her eggs, cream, and butter for her own personal use without compensation. In 1936 when decedent's husband died she asked Leafgreen to stay and take care of the operation of her farms; she executed a 10-year lease to the farm in question expiring March 1, 1948. Leafgreen's entire family were apparently intimate with the decedent and since 1938 at least one member thereof called on her daily. Her meals since 1946, when she suffered a heart attack, were prepared in Leafgreen's home and taken to her residence. The decedent left a note for appellant containing her burial instructions and asking that in lieu of flowers those desiring could give Leafgreen money for a memorial fund to be sent by him to the Arthritis Fund. An obviously close relationship between appellant and the testatrix was alleged.
At the time the will was executed the decedent was 78 years old and was suffering from severe arthritis and had recently suffered an attack of jaundice. The decedent lived until December 1, 1960, and was 96 years of age at her death. She extended Leafgreen's lease orally each year from March 1, 1948, until her death.
It is the defendant's contention that the date for the exercise of the option, March 1, 1953, or within 30 days thereafter, following a 5-year period of leasing the property from the trustee, was inserted by the testatrix at a time when she believed that she could live only a few years and was intended to prevent imposing upon Leafgreen at her death an immediate burden of paying $10,000 in cash. When construed in light of the surrounding circumstances the will, according to appellant, clearly evidences an intent by the testatrix that he should have an option to purchase the farm at her death. In addition appellant advances the proposition that even if the language of the will itself, when construed in light of the surrounding circumstances, does not express this intention, the plan of the will as a whole indicates that the probability of the intention of the testatrix to make the gift is so strong that a contrary intention cannot be supposed and that a gift to him of the option was made under the doctrine of gift by implication.
Appellees, on the other hand, contend that the will is clear and unambiguous, that the testatrix's intention as expressed must be given effect and that extrinsic evidence is not admissible to alter, detract from or add to the terms of the will. To say that the appellant has an option to purchase the farm after the death of the testatrix on December 1, 1960, in view of the fact that the only language regarding this option provides that the trustee may extend the lease to March 1, 1953, "at which time, or within thirty (30) days thereafter, said William Leafgreen is to be given the right, privilege and option of purchasing said farm," would, according to appellees, be changing, not construing, her will and could only be based upon conjecture.
The court is not, of course, justified, under the guise of construing a will, in creating a wholly new gift where the testator has made no provision whatever for the contingency that has occurred or where it appears that in view of subsequent events a particular provision would probably have been made had the testator thought of their occurrence. (Lenzen v. Miller, 378 Ill. 170; First Trust and Savings Bank of DeKalb v. Olson, 353 Ill. 206.) Where, however, the will is ambiguous extrinsic evidence is admissible, although not for the purpose of contradicting or adding to the terms of the will nor to conjecture as to the testator's probable intent. Such evidence is considered for the purpose of determining, initially, whether or not there is an ambiguity and for the further purpose of enabling the court to construe the will in light of the testator's surrounding circumstances. (Decker v. Decker, 121 Ill. 341; Cahill v. Michael, 381 Ill. 395.) In addition if, upon consideration of the will as a whole and the surrounding circumstances, it should ...