Dial v. Dial , 378 Ill. 276 ( 1941 )

Although I fully agree with the majority opinion's disposition of the dower questions, I cannot concur in the conclusion that the fifth section of Robert H. Dial's will created a trust for the benefit of his insane daughter, Mildred Dial, rather than a charge on an undivided half of his land for her benefit. The majority opinion, in order to reach its result ignores basic rules of testamentary construction. The cardinal rule, to which other rules must yield, is to ascertain the intention of the testator from a consideration of the entire will and to give it effect, unless he attempts to accomplish a purpose or to make a disposition contrary to some rule of law or public policy.(Hartwick v. Heberling, 364 Ill. 523; Norton v. Jordan, 360 id. 419; Muhlke v. Tiedemann, 280 id. 523.) In ascertaining the testator's intention the words of the will should be read in the light of the circumstances under which the will was made, and to that end the court may put itself in the place of the testator for the purpose of determining the objects of his bounty or the property which is the subject of disposition. (Dahmer v. Wensler,350 Ill. 23.) It is proper, this court has declared, in such an inquiry to take into consideration all the circumstances under which the will was executed, including the nature, extent and condition of the testator's property as well as his relations to his family and the beneficiaries named in the will. Norton v. Jordan, supra; Dahmer v. Wensler,supra.

Prior to, at the time of, and subsequent to her father's death, Mildred was an inmate of a State institution for feeble minded at Lincoln, Illinois. She was an inmate of this institution at the time her father executed his will on May 15, 1926. The fifth section of his will reflects a careful attempt to make adequate provision for the afflicted daughter without vesting title to any of the real estate in her. This purpose the testator sought to attain by devising an undivided one-half of his real property, "subject to the life estate therein of my said wife," to his son, as trustee for his daughter. Apparently the one contingency not anticipated by the testator has happened, namely, his son, Earl, has predeceased his daughter, Mildred. The courts should, however, apply the law to the factual situation presented and construe the will as it was executed. Construing the will in the light of the circumstances attending the testator who well knew of the mental condition of his daughter, his manifest intention was that she continue to receive the same care after his death as she received during his lifetime. By placing a charge for her care and attention upon one-half of his real estate so long as Mildred lives the testator indicated in plain and unmistakable language his desire that she should not acquire title to this or any other property through his will. The language directing the son to provide proper care and attention for his sister is a direct charge upon the vested remainder devised to the son by the last sentence of the fifth section. Stipulated facts disclose that the daughter has at all time been furnished adequate care and attention, — indeed, of the same character as she received during her father's lifetime. The defendant is, hence, not entitled to an accounting of the rents and profits collected from the property devised in trust during the period between her mother's death on November 11, 1935, and her brother's death on April 7, 1940. Since the remainder interest in the property charged with her support was vested in her brother, Earl, the surplus rents and profits, if any, belonged to him. Howe v. Hodge, 152 Ill. 252.

It is respectfully submitted that a correct application of the test announced by section 10 of the Restatement of Trusts leads inevitably to the conclusion that an equitable charge was created in favor of Mildred Dial. Circumstances under which the will was made preclude a conclusion that the testator, Robert H. Dial, created a trust in favor of his insane daughter. In order to ascertain and effectuate the testator's intention, the court may put itself in his place for the purpose of determining the objects of his bounty and the property which is the subject of disposition. The fact that Earl H. Dial, the son, is twice referred to as "trustee" is not decisive. A technical construction of words and phrases will not be carried to the extent of defeating the obvious general intention of the testator, and this intention will be given effect even though the language may not be clear or technically correct. (Papa v. Papa,377 Ill. 316.) The obvious intent of the testator was to make certain that his afflicted daughter receive the same degree of care and attention after his death as she had received during his lifetime. On the other hand, one purpose the testator did not have in mind, and, indeed, was the farthest from his mind, was to accumulate a fund for his daughter, a fund which could be of no useful service to her. It is not the province of a court to make a new will for the testator, as the majority opinion does, but to give the will he made the effect he intended as shown by its language, the circumstances attending its execution, and the testator's relations to his family and the beneficiaries named in his will.

For the reasons stated, among others, I am impelled to dissent, in part, from the majority opinion.