Appeal from the Circuit Court of Henry County, Fourteenth
Judicial Circuit; the Hon. CHARLES J. SMITH, Judge, presiding.
Decree reversed and remanded.
This is an action commenced in the Circuit Court of Henry County for partition and for construction of a will.
Mina Riner died testate on September 9, 1939, owning an undivided interest in each of three parcels of land in Henry County, Illinois. In her will which was duly admitted to probate, she provided in paragraph 4 for a life estate in all of her real property to her husband, Charles Riner. Paragraph 5 provided, "upon the death of my said husband, Charles P. Riner, or upon my own death, should I survive him, I direct that my lands and real estate be sold within such time after the death of the survivor of us as shall not result in a material sacrifice to my estate, either at public or private sale, and the proceeds of such sale, after deducting therefrom reasonable expenses incident thereto, be divided in the following proportions among the following named persons:
"One-Sixth thereof to my niece, Mabel E. Mueller, and in case of her predecease, then in equal parts to her children.
"One-Sixth thereof to my nephew, Vern P. Vandell, and in case of his predecease, then in equal parts to his children.
"Two-Sixths thereof to my sister, Mary E. Nostrom, and in case of her predecease, then in equal parts to my sister, Julia E. Forsyth, and my niece, Mabel E. Mueller, and my nephew, Vern P. Vandell.
"Two-Sixths thereof to my sister, Julia E. Forsyth, and in case of her predecease, then to her son, Evald M. Forsyth."
Charles Riner, life tenant and husband survived the Testatrix but died December 2, 1962. Mabel Mueller and Vern Vandell, Plaintiffs-Appellees herein, survived both Testatrix and Charles Riner. Mary E. Nostrom predeceased Testatrix, Julia E. Forsyth died intestate on December 30, 1940, leaving no surviving spouse and leaving her son, Evald E. Forsyth as her only heir. Evald died intestate on December 9, 1947, leaving Defendants-Appellants, his widow Gladys M. Forsyth and his daughter, Rena Forsyth Dean, as his only heirs at law.
Plaintiffs-Appellees, Mabel Mueller and Vern Vandell, allege in their complaint for partition, that they are the sole surviving beneficiaries under paragraph 5 of the will and therefore entitled to the interest of the Testatrix and the property sought to be partitioned. Defendants-Appellants, Gladys Forsyth and Rena Forsyth, deny such allegation and by way of answer and counterclaim for partition allege that by virtue of paragraph 5 of the will, Evald Forsyth had an interest in the property on the date of his decease to which interest they succeeded, or, in the alternative that the devise to Evald Forsyth lapsed and descended to heirs of Mina Riner as intestate property, there being no residuary clause in her will.
After a hearing, the trial court found, "It is the opinion of this court that the fifth paragraph of the will in question is ambiguous and therefore the real estate involved would vest at the death of the life tenant, Charles P. Riner.
"It is further the opinion of this court that the actions of the parties hereto were not sufficient to be considered a practical construction of the said will so as to vest said real estate as of the death of the testator." The decree of partition prepared by the Plaintiffs at the direction of the court found ". . . the interest of Julia E. Forsyth and Evald M. Forsyth as beneficiaries under the fifth paragraph of said will lapsed upon their respective deaths, and that Plaintiffs, Mabel E. Mueller and Vern P. Vandell, are entitled in equal shares to all of the proceeds of the sale of the land owned by the said Mina L. Riner at her death, . . ."
Appellants in seeking to reverse the decree of the trial court contend paragraph 5 creates an interest of inheritance in the substitute or alternative beneficiaries Julia Forsyth and Evald Forsyth, to which they succeed as heirs at law.
Appellees, in support of the decree of the trial court, contend paragraph 5 of the will requires the initial beneficiaries i.e., Mary Nostrom and Julia Forsyth, or the alternative beneficiaries i.e., Julia Forsyth or Evald Forsyth, to survive the life tenant. The contingency of survival of the life tenant not having occurred with respect to any such persons the gifts to each of them lapsed. A lapse having occurred, such interest goes to the Appellees as the only other persons specifically named in such paragraph.
The cardinal rule of testamentary construction, to which all other rules must yield, is to ascertain the intention of the testator from the will itself, and to give effect to this intention, unless contrary to some established rule of law or public policy. Harris ...