CHARLES F. JOHNSON

v.

THE FIRST NATIONAL BANK OF CHARLESTON.

Opinion filed October 24, 1901.

1. WILLS-punctuation of will may be disregarded. In construing a will the punctuation is not to be regarded, if any change in that respect will render the meaning of the instrument more obvious and unquestionable.

2. SAME will construed as to who are beneficiaries thereunder. Under a will giving all the property of the testatrix to her legal heirs, to be divided equally, etc., and “in case of their death I bequeath the same to their legal and lawful heirs, except in the case of my son Alonzo Hilton Davis' heir, he is to have no lot or part of my estate; and my beloved son, James M. Davis, in person or

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by his heirs have no part or lot in my estate," neither the grandson nor the son, James M. Davis, takes as legatee or devisee.

APPEAL from the Circuit Court of Coles county; the Hon. FRANK K. DUNN, Judge, presiding.

J. H. MARSHALL, for appellant.

A. J. FRYER, for appellee.

Mr. CHIEF JUSTICE WILKIN delivered the opinion of the court:

In November, 1899, Rachel A. Davis, residing in Coles county, this State, died testate, owning the south-east quarter of the south-east quarter, the north-west quarter of the south-east quarter and the east half of the south-west quarter of the south-east quarter of section 19, township 11, north, range 11, east of the third principal meridian, situated in that county. She left surviving her Walter P. Davis, Mark C. Davis, Roswell R. Davis, James M. Davis and Mollie Epperson, her children, and William Davis, her grandson, the child of her deceased son, Alonzo H. Davis, her heirs-at-law. Prior to her death she executed her last will and testament, which, after

providing that her administrator should first pay her funeral expenses and debts, was as follows:

"Second-I hereby will and bequeath my personal property and real estate whatsoever to my legal and lawful heirs to be divided equally between them after payment of funeral expenses and outstanding bills are paid justly contracted by me. In case of their death I bequeath same to their legal and lawful heirs, except in the case of my son Alonzo Hilton Davis' heir, he is to have no lot or part in my estate, I having previously deeded him twenty acres of land in Coles county, Illinois, in full of. all demands; and my beloved son, James M. Davis, in person or by his heirs have no part or lot in my estate, I having paid him $500 in full of all demands against my estate—a receipt for which will be found with my papers.” This is the only clause of the will important to be considered in the decision of this case. After the will had been duly probated the administrator sold the real estate above described to one Charles F. Johnson,-the above named heirs, except James M. and William Davis, joining in the deed of conveyance. The appellee, the First National Bank of Charleston, holding a judgment against the said James M. Davis for the sum of $600, caused an execution to be levied upon his supposed interest in the above real estate, and on June 14, 1900, the sheriff of said county sold the same to the said bank, and issued to it, in due form of law, a certificate of purchase. This bill is filed by the said Charles F. Johnson to set aside that sale as a cloud upon his title. To the bill a demurrer was interposed by the bank and sustained, a decree being entered dismissing the bill at the complainant's cost. To reverse that decree this appeal is prosecuted.

It is conceded by counsel on either side that the only question in the case is whether or not, by the terms of said second clause of the will of Rachel Ann Davis, her son James M. Davis took an interest in her estate. It seems that counsel for the appellee relies upon the case

of Wolfer v. Hemmer, 144 Ill. 554, as sustaining the contention that James M. Davis, by the language of the will, became a devisee or beneficiary. We are unable to see how that case can be in point here. There the question was not as to who were the legatees or devisees under the will, but, as stated in the opinion, the only question was, did the wife of John Hemmer, under his will, take the title to certain lots for life only, with a power of disposition of the same, or in fee. Here the question is who, by the terms of the will, are made beneficiaries, and this depends, not upon a construction of different clauses of the will, but upon the language used in a single clause or provision.

We need not repeat the rule as to the intention of the testator controlling in the construction of wills. That is conceded by both parties. We are at a loss to perceive how there can be any serious question, from the language used, as to what the testatrix meant. It is a well recognized rule of construction that, as applied to wills, the "existing punctuation is not to be regarded if any change in that respect will tend to bring out and render the meaning of the instrument more obvious and unquestionable." (1 Redfield on Wills, secs. 433, 434.) Suppose we read over the period at the end of the first sentence; does it not make it perfectly clear that the testatrix intended to give the property to her legal and lawful heirs, exccpt the said grandson and James M. Davis? We regard the language as clearly and unequivocally expressing the intention that the grandson and James M. Davis should have no part or interest in the testatrix's estate, giving the reasons therefor. The first sentence, as the will is written, would vest the title in fee in all the heirs of the testatrix, and so understood the will would be of no effect, the law preferring to vest the title in heirs by inheritance rather than by will; and so the manifest object of the succeeding language excepting the grandson and James M. was to show the testatrix's intention to give

the property, not to all of her heirs, but only to those not excepted.

We are of the opinion that the chancellor was in error in sustaining the demurrer to the bill. Its decree will accordingly be reversed, and the cause will be remanded for further proceedings in conformity with the views herein expressed. Reversed and remanded.

THE CICERO AND PROVISO STREET RAILWAY COMPANY

v.

LUCY A. WOODRUFF.

Opinion filed October 24, 1901.

This case is controlled by the decision in Chicago City Railway Co. v. Olis, (ante, p. 514.)

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN C. GARVER, Judge, presiding.

GRAHAM H. HARRIS, (W. W. GURLEY, and JOHN A. ROSE, of counsel,) for appellant.

JOHN F. WATERS, and C. HELMER JOHNSON, for appellee.

Per CURIAM: The Appellate Court for the First District affirmed the judgment entered in the circuit court of Cook county in the sum of $10,000 in favor of the appellee and against the appellant company, and this appeal seeks reversal of such judgment of affirmance.

The declaration was in case for the recovery of damages for personal injuries sustained by appellee in a collision of appellant's trains, on one of which appellee was a passenger.

The errors relied upon for reversal are that the court erroneously modified two instructions asked in behalf of the appellant company. The instructions as given are

as follows:

"If you believe, from the evidence, that any person who testified in this case has knowingly [corruptly, intentionally] and willfully testified falsely as to any matter or thing upon the existence or non-existence of which the right of the plaintiff to recover or the right of defendant to escape liability depend, or upon the existence or nonexistence of which the amount of damages, if any, to be recovered by the plaintiff depends, then you are at liberty to entirely disregard the testimony of such person, except in so far as it may have been corroborated by evidence in the case which you believe to be true, or by circumstances shown by the evidence in the case which you believe to be true."

"The court instructs you that if you believe, from the evidence in the case, that any witness has [willfully, corruptly, intentionally and] knowingly testified falsely as to any material matter in the case, then you are at liberty to disregard the testimony of such witness entirely, except wherein it is corroborated by other credible testimony in the case or facts and circumstances in evidence."

As asked, the instructions did not contain the words printed in italics and enclosed in brackets in the instructions as above set forth.

The contention is, the court erred in modifying the instruction by the insertion of the word "corruptly." In Chicago City Railway Co. v. Olis, (ante, p. 514,) the precise question was presented for decision. We reached the conclusion the modification of the instruction did not constitute reversible error. On the authority of the decision in that cause, and for the reason given in the opinion filed in the case cited, the judgment of the Appellate Court in this cause is affirmed. Judgment afirmed.