Schneller v. Schneller , 356 Ill. 89 ( 1934 )

We can conceive of no language which would more definitely express a testator's desire to limit his devise to the children who survived him than was used by John L. Schneller in the third section of his last will and testament. His intent seems to be clear and unambiguous. His devise was made to his three children "or to the survivors or survivor of them." It is not the province of a court to make a new will for a testator but to give the will he made the effect he intended as shown by its unambiguous terms.

Section 11 of the Statute of Descent provides that "whenever a devisee or legatee in any last will and testament, being a child or grandchild of the testator, shall die before such testator, and no provision shall be made for such contingency, the issue, if any there be, of such devisee or legatee, shall take the estate devised or bequeathed as the devisee or legatee would have done had he survived the testator, and if there be no such issue at the time of the death of such testator, the estate disposed of by such devise or legacy shall be considered and treated in all respects as intestate estate."

It will be seen that the statute which permits the issue of a child or grandchild of the testator to take in place of the original devisee is contingent upon the testator's having made no provision in his will for the disposition of the property in case of the death of the devisee before that of the testator. If the will contains a provision for such contingency, the statute does not apply. Here the plain language of the third clause contains a provision for the contingency. It expressly provides that if any of his three children shall die, the survivors or survivor of them shall take the entire remainder. The words of survivorship are in the same sentence which creates the gift.

It is the rule, as to which we know of no exception, that words of survivorship in a will are to be construed as referring to the testator's death, where the language of the will does not clearly and definitely indicate that a subsequent date was intended. (Thompson on Construction of Wills, sec. 263.) It has been universally held in this country and in England that where there is a devise simpliciter to one person, and in case of his death to another, there being no contingent or doubtful circumstances connected with such death, the testator will be presumed to intend a death preceding his own. (Lee v. Roberson, 297 Ill. 321.) Words of survivorship in a will, particularly when used in connection with an immediate gift, such as the gift in this case, refer to the death of the testator as the time at which the survivorship will be determined, unless it clearly appears from the context of the will and the circumstances surrounding the testator that he intended to refer it to another time after his death. A different rule obtains, however, where the gift to the survivors is preceded by a particular estate for life or years. In such a case, in the absence of anything indicating a contrary intention, words of survivorship usually refer to the termination of the particular estate. (40 Cyc. "Wills," 1511.) The will in this case created no preceding or particular estate. The devise was an immediate gift simpliciter to the testator's three children or their survivors or survivor. The devise contained an express provision for the contingency of death of any one of the children in language definitely referable to the testator's death.

The purpose of section 11 of the Statute of Descent is to prevent the lapsing of a devise or legacy to a child or grandchild of a testator. Under the circumstances in this case there could be no lapse of the devise. Upon the testator's death there were living children of the testator to whom he had devised "all the remainder and residue of my estate."

We cannot see the application of the cases cited in the majority opinion to support its conclusion that section 11 of the Statute of Descent applies to the situation here presented. Thus, in Rudolph v. Rudolph, 207 Ill. 266, the will contained no words of survivorship and the case fell squarely within the statute. In Kehl v. Taylor, 275 Ill. 346, there was a preceding estate created, and the case therefore differs from this case, where there was no preceding estate created and where the devise was simpliciter. The same is to be said of Burlet v. Burlet, 246 Ill. 563. There is no similarity between the facts in Frail v. Carstairs, 187 Ill. 310, and the facts in this case. In the Frail case there vested in the testator's children a fee determinable as to any one of three dying unmarried, in which event his share went to the survivors or survivor. The devise to the survivor of a terminated fee which had vested was necessarily upon a contingency subsequent to the death of the testator. It was the only contingency of which cognizance was taken in the will, and when a devisee died before the testator, a contingency for which no provision was made, section 11 of the Descent act applied. Not a question involved in that case is involved in this one, nor is there a question involved in this case that was involved in that one.

For the reasons above stated, we are unable to concur in the majority opinion.