APPEAL from the Circuit Court of Stephenson County; the Hon.
JOHN L. MOORE, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Jeanette Miller, the widow of Frederick S. Miller, grandson of Ira Miller, filed the instant declaratory judgment action to construe the will of Ira Miller. The trial court granted plaintiff's motion for judgment on the pleadings and held that part of the will was void and that Ira Miller devised to the grandson, Frederick S. Miller, a fee simple remainder in the real estate involved herein. The defendants, devisees of a portion of the real estate under the will of Floyd Miller appeal.
Ira Miller died March 25, 1939, leaving him surviving Nettie E. Miller, his wife, Floyd Miller, son, and Frederick S. Miller, a grandson. Nettie E. Miller died April 10, 1948, leaving her surviving Floyd Miller as her only heir. Frederick S. Miller, the grandson of Ira, died June 9, 1971, predeceasing his father Floyd who subsequently died on October 13, 1971. Floyd Miller also left a will in which he devised 80 acres of the farm in question to Janice Okey, the daughter of Frederick. The remaining acres were devised by Floyd to Emma O'Neil for her lifetime with the remainder equally to the Freeport Memorial Hospital and the Lena Continental Manor Nursing Home., Inc.
Most of the provision of Ira Miller's will in question was handwritten with no regard for conventional punctuation, although the record does not reveal by whom. As nearly as may be reproduced in typewritten form it is as follows:
"SECOND After the payment of such funeral expenses and just debts, I give, devise and bequeath To my wife Nettie E Miller all of my real estate and personal property consisting of Bond's, note's and all money in bank and my interest in live stock and machinery on farm and farm consisting of One hundred and twenty acres in Harlem Township and Five acres of timber land in Loran Township and after her death said property to be bequeathed to my son Floyd Miller The old homestead is not to be sold and after Floyd's death is to be the property of Frederick S. Miller son of Floyd Miller The said Nettie E. Miller is to serve as Executrix of said will without bond's"
Both parties claim interests in the 120-acre farm which Ira Miller owned at the time of his death. The plaintiff claims the entire 120 acres while defendants claim a 40-acre parcel which is separated by a road from the remaining 80 acres.
• 1 In construing wills the trial court is required to ascertain and give effect to the intent of the testator, and the issue on appeal in such cases is whether the trial court's construction truly accomplished that objective. (In re Estate of Hayden (1974), 23 Ill. App.3d 242, 318 N.E.2d 668.) It has also been stated that in a case in which all parties have asked the court to construe a will,
"* * * it is therefore the duty of the court to construe the will in such manner as may be found to be correct and proper notwithstanding the construction contended for by either party." Gridley v. Gridley (1948), 399 Ill. 215, 221, 77 N.E.2d 146, 150.
With these principles in mind, we turn first to the finding of the trial court that the portion of Ira Miller's will which reads "The old homestead is not to be sold" was void. The trial court based this conclusion upon its reading of the opinion in Whitmore v. Starks (1959), 17 Ill.2d 202, 161 N.E.2d 254. The provision which was held to be void in Whitmore was a gift of a remainder interest in a certain piece of property "for a home not to be sold." It is clear that the restriction sought to be imposed by the testatrix in Whitmore was upon the holders of the remainder interest. It is also to be noted that the court in Whitmore interpreted the will as disposing of all of the testatrix' interest in the piece of property in question. That being so, the remainder was in fee simple and the attempted restriction upon that interest was void.
• 2, 3 We must, therefore, determine what interests each of the named devisees took under the will of Ira Miller. The parties before us all seem to agree that Nettie E. Miller, the wife of Ira, took a life estate under the will. This is so because, after the gift to Nettie appear the following words:
"and after her death said property to be bequeathed to my son Floyd Miller."
It is well recognized in this state that a devise over at the death of the first named taker is sufficient to create only a life estate in the first such person. (See, e.g., Scott v. Crumbaugh (1943), 383 Ill. 144, 48 N.E.2d 532; Hoge v. Hoge (1959), 17 Ill.2d 209, 161 N.E.2d 117.) This principle applies to subsequent gifts also. Hoge v. Hoge.) Thus, the next portion of the will reading, "* * * The old homestead is not to be sold and after Floyd's death is to be the property of Frederick S. Miller," was sufficient to make the gift to Floyd a life estate in whatever property constituted "the old homestead." As to the remaining property, exclusive of the "homestead," Floyd had a remainder in fee simple following the life estate of his mother because the gift of "said property" to him referred back to the previous gift of "all" of Ira's real estate and personal property. It has been recognized that any uncertainty in the language used to describe the property to be included in the gift over of the remainder does not affect the limitation imposed upon the estate of the prior taker. (Scott v. Crumbaugh.) Thus, we hold that it was the intention of Ira Miller to give his grandson, Frederick, a remainder in fee simple in whatever property constituted "the old homestead."
• 4 That does not, however, mean that the restriction imposed in this will is the same as that in Whitmore. We note that the provision to the effect that the homestead is not to be sold appears before the gift over to Frederick. Our reading of the entire will convinces us that by including that language in that position, Ira intended to impose a restriction upon Nettie and Floyd that they were not to sell the homestead. If Ira had intended to impose the restriction upon Frederick, we believe that he would have done so in a manner similar to that used by the testatrix in Whitmore. Thus, there was no void restriction upon the remainder given to Frederick.
There remains, however, the question of whether the restriction sought to be imposed upon the life estates of Nettie and Floyd was valid. It is well recognized in Illinois that an absolute restraint on the power of alienation of a life estate is void. (Department of Public Works & Buildings v. Porter (1927), 327 Ill. 28, 158 N.E. 366; Gray v. Shinn (1920), 293 Ill. 573, 127 N.E. 755.) It is equally well recognized, however, that when a will is susceptible of either of two constructions, one of which would render it valid and the other of which would render it void, the court will adopt the construction which will render the will valid, if such can be done without doing violence to the intention of ...