Appeal from the Circuit Court of Woodford County; the Hon.
Richard M. Baner, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On March 18, 1980, plaintiff, Eldon Harms, filed suit in the circuit court of Woodford County seeking construction of the will and codicil of Folkert J. Harms, deceased, as they concerned the rights of tenancy on a farm tract of approximately 120 acres in that county and related questions concerning limitations upon the sale of the property. Numerous persons were joined as defendants. Some answered and counterclaimed, others merely answered, and some were defaulted. After completion of an evidentiary hearing, the court entered an order on November 21, 1981, determining defendants-counterclaimants, Robert Harms and Alfred Harms, to be entitled to be tenants of the tract, and the property not to be then subject to being sold without their consent. Defendants, Esther Flessner, David Bruns, Paul Bruns, James Bruns, Margaret Van Hoveln, E.O. DeWeerth, Raymond DeWeerth, E. Allen DeWeerth, Phyllis Holtfreter, Adrian Harms and Thora Mercer, and plaintiff have appealed. We affirm.
The testator died on March 5, 1966, survived by his wife, Tenna Harms, who lived until December 22, 1979. The testator devised to her a life estate in all his realty, terminable if she remarried. Clause Fourth of the will provided that, upon termination of the life estate, persons "hereafter named" shall sell all the real estate "within two years." The clause further stated:
"During the period which may elapse from the time of my wife's death or remarriage until the time of sale my said personal representative shall have the power and authority to rent and collect the rents from said real estate but not for a period of more than two years."
On May 6, 1965, 10 months before his death, the testator executed a codicil, the pertinent portions of which stated:
"I provide that the provisions in the Fourth Clause relative to the two year period for the sale of my real estate, which is farm land and leased to tenants, be deleted and eliminated and in lieu thereof I provide that said real estate shall be sold as provided in and by said clause ten (10) years from the date of the death of my wife, or upon her remarriage, and if she shall have preceded me in death, then ten (10) years after my death. My purpose in making this provision is to give the tenants on said real estate the right to remain on and in the possession of said farm land as I realize that it is sometimes difficult for a tenant to move and secure another farm.
In the event that the tenant on any of the land does not wish to avail himself of the ten (10) years period as above provided, then he can waive the same and my Executors can then sell the said real estate as soon after the death of myself and my wife as they in their judgment shall deem proper.
I also provide that in the ten (10) year period as above provided, that if any such tenant shall die, or does not wish to avail himself further of the right to remain as a tenant on the farm land, then he can waive the further right of possession and my said Executors can then proceed with the sale of said real estate."
Plaintiff, Eldon J. Harms, was the tenant on the 120-acre tract in question at the time of the execution of the codicil and at the time of the testator's death. During the existence of the life estate of Tenna Harms, she terminated plaintiff's tenancy and leased the tract to defendants, Robert Harms and Alfred Harms. Plaintiff maintained that under the provisions of the codicil, he had a right to remain as tenant. However, in a suit entitled Tenna Harms v. Eldon J. Harms, Docket No. 69-L-104, the circuit court of Woodford County ruled on May 12, 1979, that under the terms of the will and codicil, Tenna Harms had authority during the existence of her life estate to rent the tract to whom she pleased. No appeal was ever taken from that order.
Throughout the litigation, plaintiff maintained that a patent ambiguity existed in the codicil. He further maintained that when properly construed, the codicil provided that only he was entitled to be the tenant during the 10-year period following the death of Tenna Harms or, in the alternative, no one was entitled to be the tenant and, accordingly, the property was subject to immediate sale. The defendants, other than Robert and Alfred Harms, contend that the 10-year period was intended to be operative only if plaintiff was tenant at the termination of the life estate and because he was not, the provision does not come into effect, and the property is subject to immediate sale. Defendants Robert and Alfred Harms assert the trial court properly ruled that by virtue of being the tenant of the tract when the life estate terminated, they are entitled to be tenants for 10 years, and they have the power to determine whether a prior sale may be made.
The plaintiff and defendants-appellants contend that the statement in the codicil that "[m]y purpose in this provision is to give the tenants on said real estate * * *" is patently ambiguous as to whether the "tenants" referred to were those holding that position at the execution of the codicil, at the testator's death, or at the life tenant's death. To show the ambiguity and to support the contention that the testator did not intend to benefit the plaintiff, appellants rely upon the testimony of attorney James A. Riely of Minonk. He stated that after discussion between the testator, the witness and attorney Edward F. Riely, the latter dictated the codicil in the presence of the other two. On cross-examination by attorney John C. Hirschfeld on behalf of defendants-appellants, the witness stated that in the discussion the testator mentioned plaintiff Eldon Harms, defendant Alfred Harms, and a Mr. Kalkwarf who were then the existing tenants on the three farms of the testator. The following colloquy then took place:
"MR. HIRSCHFELD: I will ask you the question. Did he specifically state to you that he wanted to benefit these three tenants?