(123 N.E.) reference to orders entered in vacation under the sound discretion of the trial court. As the special statutes then in force. The time when a reply must be filed is, as has been said, usually fixed by statute or rule of court, but these statutes and rules should be given a liberal construction in the interest of justice, and such a practice should doubtless be encouraged by the court so far as is consistent with the prompt and efficient dispatch of the business of the courts. Dunn v. Keegin, supra. [5, 6] Rules of pleading and practice should facilitate getting at the real facts in a legal proceeding in an orderly manner, and should promote and not impede the administration of justice. In our judgment the correct rule was laid down by this court in Walter Cabinet Co. v. Russell, supra, both as to our General Practice Act and the Municipal Court Practice Act, that after the expiration of the rule to plead the defendant has no right to plead without leave of court, and while the court could, during the term, on good cause shown, rule liberally in favor of allowing pleadings to be filed in order to hear and decide the case on the merits, the persons who ask for such extension of time are asking it as a favor, and should ordinarily be expected to show some good reason for such request. Courts very generally exercise their discretion in such matters by requiring, in support of such motion, an affidavit setting out such reasons. 31 Cyc. 374. See, also, City of Carlyle v. Carlyle Water, Light & Power Co., 140 Ill. 445, 29 N. E. 556; Anderson Transfer Co. v. Fuller, 174 Ill. 221, 51 N. E. 251. [7] The setting aside of a default judgment, or giving time to plead, is within the sound discretion of the court, and not reviewable on appeal except for abuse of discretion. Culver v. Hide & Leather Bank, 78 Ill. 625; Anderson Transfer Co. v. Fuller, supra; 21 Ency. of Pl. & Pr. 708, and authorities cited in notes. In our judgment the answer of appellants was rightly stricken as being filed after the rule had expired, and in moving to set aside such order appellants were asking a favor and not demanding a right, and therefore they were only entitled to its allowance in they made no showing why they were late in filing such answer or that they were acting in good faith in asking to have the order set aside striking the answer from the files, there is nothing in this record to show that it would promote the ends of justice for this court to interfere with the discretion of the trial court in refusing to set aside such order. Surely, if appellants were acting in good faith it would have been a very simple matter to make a showing to that effect. Not having done so, we cannot say that the trial court abused its discretion in refusing to set aside said order. [8] Counsel argue at considerable length that the trial court disregarded one of its rules as to notices of motions when the answer was stricken from the files. The purpose of such a rule is to give both parties a hearing before the court enters an order. They had such a hearing upon the merits of the question, so far as presented in the record, on their motion and request to set aside the order and for leave to refile their answer. We agree with the conclusion of the Appellate Court on this point that whether the trial court violated its own rules in not requiring notice before striking the answer from the files is therefore immaterial. [9] Counsel for appellants also argues that the trial court erred in allowing solicitors' fees of $350 and $400, respectively, in these cases. The objections and exceptions relied upon before the master and court were limited to the fact that the witness who testified as to the solicitors' fees had no information as to the work actually done by complainants' solicitors, except what he could judge from an examination of the files. There can be no question as to the competency of the witness. He had been a master in chancery of that court, and we assume was competent to judge from the knowledge so obtained, what would be the usual and customary fee in that county for the work so indicated. We see no reason why the decree of the court should be reversed on this ground. The judgment of the Appellate Court will be affirmed in each of these cases. Judgments affirmed. (288 Ill. 463) (Supreme Court of Illinois. June 18, 1919.) 1. WILLS 597(3)-CONSTRUCTION-ESTATES CONVEYED. Under Conveyance Act, § 13, a devise, though without words of inheritance, conveys a fee simple, if a less estate be not limited by express words, and it is the disposition of the courts to construe a will so as to give an estate of inheritance to the first devisee. 2. WILLS ~601 (1)—CONSTRUCTION-ESTATE OF INHERITANCE. When the fee is devised by one clause of the will, other portions will not be given the effect of limiting or qualifying the estate, unless they show that to be the clear intention of the testator. Appeal from Circuit Court, Whiteside County; Emery C. Graves, Judge. Suit by Edna L. Meins and others against Lizzie Meins and others for the construction of a will. From a decree construing the will in favor of the latter, the former appeal. Reversed and remanded, with directions. R. W. E. Mitchell and Henry C. Ward, both of Sterling, for appellants. Carl E. Sheldon, of Sterling, for appellees. STONE, J. The only question involved in this case is the construction of the second, third, and fourth clauses of the will of Meino Meins, deceased. The testator left an estate of 240 acres of land in Whiteside county, of the value of approximately $30,The first clause of 000, and $800 in cash. REthe will provides for the payment of debts. The other clauses are as follows: 597(2) — CONSTRUCTION STRICTION OF ESTATE. Where other clauses of the will show a clear intention to limit a clause devising the fee, those clauses will prevail, regardless of the part of the will in which they are manifested. 4. WILLS 439-CONSTRUCTION-INTENT OF TESTATOR. In construing a will, the intention of the testator, if not inconsistent with the established rules of law or public policy, must govern. 5. WILLS 470-CONSTRUCTION-CONSTRUC TION AS A WHOLE. The intention of testator must be gathered from the whole will, and all its parts taken together. EFFECT OF ALL PARTS. "Second-After the payment of such funeral expenses and debts, I give, devise and bequeath to my wife, Lizzie Meins, all of my property, both real and personal, which I may die possessed of. "Third-It is my wish, and I hereby direct, Lizzie Meins, $10,000 of my said estate shall that three years after the death of my wife, be given to my daughter, Annie Oltmans. "Fourth-After my daughter, Annie Oltmans, has received her share of $10,000, the remainder of my estate I give, devise and bequeath to my son, Albert Meins. Lizzie Meins, to be executrix of this my last "Lastly-I nominate and appoint my wife, will and testament." The chancellor construed the will as vestEvery clause and provision of a will, if pos-ing an estate in fee in the widow, Lizzie sible, should have effect given to it according to Meins, by the second clause of the will, and the intention of testator. decreed accordingly. Albert Meins died, and 7. WILLS NANT CLAUSES. 472-CONSTRUCTION - REPUG- his widow, Edna L. Meins, personally and as administratrix of his estate, together with her daughters, Mildred A. and Grace E., are appellants herein. A later clause of a will, when repugnant to a former provision, is considered as intended to modify or abrogate the former. 8. WILLS 634(16) — CONSTRUCTION-VESTING OF ESTATE-PAYMENT OF LEGACY. Where testator directed that within three years after the death of his wife his daughter should receive a sum of money from his estate, and after that the remainder was devised to his son, the payment of the legacy to the daughter was not a condition precedent to the vesting of the remainder in the son, but was a charge upon the estate vested in the son. It is the contention of appellants that the second, third, and fourth clauses of the will should be construed as one clause, creating a life estate in the widow, with remainder in fee to Albert Meins, now vested in Mildred A. and Grace E. Meins, his daughters, subject to the dower interest of Edna L. Meins, their mother, and charged with the payment of $10,000 to Annie Oltmans not later than three years after the death of Lizzie Meins, widow of the testator. On the 9. WILLS 614(5)-CONSTRUCTION-ESTATES other hand, the appellees contend that the CONVEYED-LIFE ESTATE. widow, Lizzie Meins, took a fee simple estate by the second clause of the will, unlimited by the third and fourth clauses thereof; that, by reason of the passing of Where testator devised all his property to his wife, but by subsequent clauses directed that within three years after his wife's death a legacy be paid to his daughter, and devised the remainder of the estate to his son, the the fee-simple title under the second clause, wife took only a life estate, though the devise the third and fourth clauses of the will are to her would be in fee if it were not qualified mere precatory words, and are therefore by the latter clause of the will. void. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (123 N.E.) [1-3] The rule is that a simple devise of time should be sold after the death of the land without any words of inheritance is wife and divided in the manner therein sufficient, under section 13 of the Convey-specified. This court in that case said: ances Act (Hurd's Rev. St. 1917, c. 30), to "The wife is given everything, with full powconvey an absolute estate in fee, unless a er to use, enjoy, and dispose of the same, and contrary intent is shown in other parts of convey the real estate by absolute conveyance the will. It is the disposition of courts to in fee simple. This, if unqualified, would, of adopt such a construction as will give an course, vest a fee simple in the real estate; estate of inheritance to the first devisee. but, being qualified, in order to give the lanTherefore, when the fee is devised by one guage of the qualification any effect, this lanclause of the will, and other portions or guage must be restricted to the life of the wife clauses of the will are relied upon as lim- will is to be considered, no less than the forof the testator. *** The latter part of the iting or qualifying the estate thus given, mer part, and to the extent there is repugnance they should be such as show a clear inten- the language of the former part is to be read tion on the part of the testator to thus qual-as modified by that of the latter part." ify the estate granted. Giles v. Anslow, 128 Ill. 187, 21 N. E. 225; Jones v. Jones, 124 Ill. 254, 15 N. E. 751; Walker v. Pritchard, 121 Ill. 221, 12 N. E. 336. Where a testator by his will employed language sufficient to pass the fee-simple title to land, in the absence of the expression of a clear intention to cut down the fee to a life estate, an estate in fee simple will pass. Bowen v. John, 201 Ill. 292, 66 N. E. 357. If it is clearly shown by other clauses or parts of the will that the testator intended to limit the fee thus granted, such intention will prevail, and it is wholly immaterial in what part of the will such intention is manifested. Rose v. Hale, 185 111. 378, 56 N. E. 1073, 76 Am. St. Rep. 40; Giles v. Anslow, supra; Huffman v. Young, 170 Ill. 290, 49 N. E. 570; Whitcomb v. Rodman, 156 Ill. 116, 40 N. E. 553, 28 L. R. A. 149, 47 Am. St. Rep. 181; 2 Jarman on Wills (5th Am. Ed.) 53. [4-7] The principal rules of construction are: The intention of the testator, if not inconsistent with the established rules of law or public policy, must govern. This intention must be gathered from the whole will, and all its parts taken together. Every clause and provision, if possible, should have effect given to it according to the intention of the maker. Fifer v. Allen, 228 Ill. 507, 81 N. E. 1105; Lander v. Lander, 217 Ill. 289, 75 N. E. 487; Hamlin v. United States Express Co., 107 Ill. 443; Henderson v. Blackburn, 104 Ill. 227, 44 Am. Rep. 780; Bland v. Bland, 103 Ill. 11; City of Peoria v. Darst, 101 Ill. 609; Giles v. Anslow, supra; Boyd v. Strahan, 36 Ill. 355. A later clause of a will, when repugnant to a former provision, is to be considered as intending to modify or abrogate the former. Harris v. Ferguy, 207 Ill. 534, 69 N. E. 844; Hamlin v. United States Express Co., supra. In the case of Hamlin v. United States Express Co., supra, the devise was to the wife for her own use, with full power to dispose of any of the estate, real or personal, and to convey the real estate by conveyance in fee simple. Elsewhere in the will it was provided that such of the testator's real estate as his wife had not sold during her life In Boyd v. Strahan, supra, where the testator left property to his wife with the power of disposition, but by later phraseology limited her estate, it was held that, as a general rule, where a will bequeaths personal property to be at the absolute disposition of the legatee, such legatee, in the absence of all clauses showing a contrary intent on the part of the testator, becomes the absolute owner; that the rule which controls in the interpretation of a will is that the intention of the testator to be gathered from the entire will must govern. It was there said: "There is no other class of written instruments known to the law in which so little importance is to be attached to the technical sense of language in comparison with that sense in which the apparent object of the writer indicates his words to have been used. So far is this principle carried, that the court say in 3 Wills. 141: Cases on wills may guide us to general rules of construction; but unless a case cited be, in every respect, directly in have little or no weight with the courts, who point, and agree in every circumstance, it will always look upon the intention of the testator as the polar star to direct them in the construction of wills.'" To the same effect is Lander v. Lander, supra. This court said in Fifer v. Allen, supra: is to ascertain the intention of the testator, so "The purpose of courts in construing a will that such intention may be given effect, if not prohibited by law. The object to be attained is to give the will the interpretation and meaning which the testator intended, and his intention will be carried out whenever it can be done without violating some established rule 145 Ill. 625 [34 N. E. 467, 21 L. R. A. 454]; of law or public policy. Crerar v. Williams, Bradsby v. Wallace, 202 Ill. 239 [66 N. E. 1088]; Perry v. Bowman, 151 Ill. 25 [37 N. E. 680]. To ascertain the intention of the testator the entire will is to be considered and the different parts compared, in view of the the question is: What did the testator intend? circumstances existing when it was made, and Young v. Harkleroad, 166 Ill. 318 [46 N. E. 1113]; Johnson v. Askey, 190 Ill. 58 [60 N. E. 76]." in this case took the fee. An examination of that case discloses that it is to be distinguished from the case at bar. The will devised the property in question to the wid [8] It is contended by appellees that the | Reed v. Welborn, 253 Ill. 338, 97 N. E. 669, payment of $10,000 to Annie Oltmans is a in support of their contention that the widow condition precedent to the vesting of any estate in Albert Meins, and that, as the law favors vesting of estates, this entire estate must be held to be vested in Lizzie Meins, the widow. In support of this contention ow and upon her death to the daughter, with appellees cite Jacobs v. Ditz, 260 Ill. 98, 102 N. E. 1077. In that case the will specifically provided "that before he shall receive the farm" the son was to pay the testator's daughter a certain sum of money and a certain sum to the testator's stepson, and file receipts therefor with the county clerk. That was held to be a condition precedent to the vesting of the estate. The rule, however, as stated in that case is: "In doubtful cases the courts are inclined to construe an estate as vested in accordance with an accepted public policy, and in such cases will construe a legacy as a charge upon the land devised rather than a condition precedent to the vesting of the estate." In Hempstead v. Hempstead, 285 Ill. 448, 120 N. E. 782, the rule is laid down that where there is a large charge imposed by the will upon a devisee, or where a devise in a will is made subject to the payment of specific sums to the other beneficiaries, such fact, while not conclusive, is necessarily strong evidence of an intent of the testator to pass by his will a fee to such devisee, as the devise might otherwise not prove a beneficial interest. Page on Wills, § 561; Johnson v. Johnson, 98 Ill. 564. In Bergan v. Cahill, 55 Ill. 160, the testator devised a life estate to his wife and the remainder to his son, provided the son pay to the daughter $100 or an equivalent, and there were no words implying a precedent condition, and if was held that upon the testator's death the son took the fee, subject to the legacy. In Daly v. Wilkie, 111 Ill. 382, the devise was subject to the condition that the devisee should, within a term of seven years after the death of the testator, pay to the testator's daughter the sum of $500. The payment was postponed for seven years after the death of the testator, and it was held that the son took the fee charged with the payment of the legacy. In Parsons v. Millar, 189 Ill. 107, 59 N. E. 606, the devise was subject to the provision that the son should pay certain sums to the testator's daughters within two or three years after his death. The payments were postponed and held to be charges on the property. To the same effect is the case of Spangler v. Newman, 239 Ill. 616, 88 N. E. 202. The rule is that the postponement of the time of payment indicates that the payment was not a condition precedent to the vesting of the estate. Jacobs v. Ditz, supra. [9] Counsel for appellees cite the case of the further provision that if the widow outlived the daughter and the daughter should die leaving no child or children, then at the death of the widow the property was to go to the nearest kin of the testator. The question there was whether or not the fee in remainder vested in the daughter upon the death of her father, the testator. It was there held, under the rule that the court will, if possible, construe a will so as to give an estate of inheritance to the first donee, that the fee vested in the daughter. That case, however, does not contravene the rule, well established in this state, that where other provisions of the will clearly show an intention on the part of the testator to limit a fee the will must be so construed. That rule is applicable here. Reading the entire will, the second, third, and fourth clauses of which all treat of the same subject-matter, and applying the rules herein discussed, we are convinced that it was the intention of the testator that the widow, Lizzie Meins, should have a life estate in the property conveyed by the will and that the remainder should vest in fee in the son, Albert Meins, charged with the payment of the sum of $10,000 to Annie Oltmans. The subsequent provisions of the will, whether they be read as one clause or separately, clearly and unequivocally show the intention of the testator to limit the estate given to the widow by the second clause to a life estate. The third clause directs that $10,000 shall be given to the daughter, Annie Oltmans, which the testator in the fourth clause designates as her share of the estate. The fourth clause gives, devises, and bequeaths the remainder of the testator's estate to his son, Albert Meins. These are not precatory words, but positive directions. In addition it may be said that the second clause of the will contains no words of inheritance, and under the well-established rule such a devise passed but a life estate. Albert Meins being now deceased, the remainder in the property in question vests in fee in his daughters, Mildred A. and Grace E. Meins, subject to the dower interest of their mother, Edna L. Meins, and charged with the payment of $10,000 to Annie Oltmans not more than three years after the death of the testator's widow, Lizzie Meins. The decree of the circuit court will be reversed, and the cause remanded, with directions to enter a decree in accordance with the views herein expressed. Reversed and remanded with directions. (123 N.E.) (288 Ill. 568) (No. 12301.) circuit court of Marshall county to construe her will. Isabelle McCartney, who was never married, died testate February 8, 1917. She (Supreme Court of Illinois. June 18, 1919.) was 68 years old at the time of her death, and left surviving as her only heirs five 1. PERPETUITIES 8(4)—BEquest for CaRE brothers, one of whom, George W. McCartOF BURIAL LOT · UNINCORPORATED CEME-ney, was insane and had been for several TERY ASSOCIATION. years. He had been in the hospital for in In addition to the A bequest to an unincorporated cemetery as- sane at Bartonville some time, but his sissociation in trust to place at interest perpetual-ter, the testatrix, caused him to be removed ly, and use the interest for caring for a burial from that place to the Lake Geneva Sanilot, is void, as violating rule against perpetui- tarium, in Wisconsin. ties; Hurd's St. 1917, c. 21, § 31a, empowering an incorporated cemetery association to receive a gift in trust in perpetuity for care of a burial lot, not aiding it. 2. WILLS - 558(1) UNCERTAINTY QUESTS FOR GRAVE MARKERS. Bequests for markers for graves of testatrix and her brother, to cost not less than $75 each, is not objectionable as uncertain and indefinite, and giving executor uncontrolled power; the county court having jurisdiction and power to control the amount expended. 3. WILLS 673 TION OF TRUST. CONSTRUCTION CREA A clause of a will held to show intention to create, and to create, a valid trust, of the rents and profits of the interest of testatrix, in lands owned by her in common with an insane brother, for purpose of caring for him during his life. 4. TRUSTS 160(2) TRUSTEE MENT BY COURT. APPOINT A will creating a trust for care for testatrix's insane brother during his life, without naming a trustee, the court properly appoints one. property individually owned by the testatrix, she and her insane brother each owned Item the undivided one-half of 240 acres of farm land as tenants in common. At the time of BE- her death she was conservator for her insane brother. The will is paragraphed into nine items. Item 1 simply directs the payment of the testatrix's debts and funeral expenses. The clauses of the will sought to be construed are items 2, 3, and 4. 2 directs the payment by the executor of $200 to the United Presbyterian Cemetery Association, or the proper authority having charge and management of the United Presbyterian Cemetery in the town of La Prairie, Marshall county, Ill., to be held in trust and placed at interest perpetually, the interest only to be used each year for taking care of the John D. McCartney burial lot in said cemetery. Said item 2 further directs the executor' to procure markers for the burial lots of testatrix and her brother George at a cost of not less than $75 for each marker. Item 3 directed that "the real estate held in common by myself and my said brother, George W. McCartney" (describing the 240 acres), be rented from year to year and the rents received therefrom applied to the expense of keeping George in the Lake Geneva Sanitarium the remainder of his life. Said item further directed that testatrix's said brother should be kept at said sanitarium and should not be sent to or placed in any other institution; that after paying out of the rents of the 240 acres the maintenance of George, if there was any remainder it should be applied to the payment of taxes and the general upkeep and improvement of the land. In case the rents were insufficient to pay the expense of keeping and maintaining the insane brother, then the will directed that additional funds necessary be procured by loan "upon any of the real estate aforesaid," and if any conservator was appointed to succeed testatrix, she expressed the wish that said conservator be authorized by the court to procure a loan on the interest of George to make up any deficiency. If that could not be done, then the will directed that the trustee thereafter FARMER, J. Appellants, heirs at law of named should borrow what was necessary Isabelle McCartney, filed their bill in the on the interest of the testatrix in the 240 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |