Funk v. Eggleston

92 Ill. 515

Opinion

Mr. Justice Baker

Footnotes

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*

delivered the opinion of the Court:

It was admitted on the trial, the appellees were in possession of the premises in controversy at the time of the institution of the suit, as tenants of the executors of the last will and testament of Sarah Funk, deceased.

Mrs. Harriet Albee was examined as a witness on behalf of appellees. It was objected that she was not a competent witness, as she was directly interested in the event of the litigation and appellants were suing as the heirs and devisees of Absalom Funk, deceased. The substantial facts to which she testified were, that Sarah .Funk never had any gold watch except one, which she got as a part of the estate of Absalom Funk; that after the death of Sarah Funk, that watch was sent to Absalom Funk, Jr., and he got it; and that she knew what furniture Sarah Funk had at the time of her death, and that she added a few things to the furniture that was in the house at the time of Absalom’s death.

When adverse parties sue as heirs or devisees of any deceased person, then parties to such suit, or persons directly interested in the event thereof, are excluded by the statute as witnesses in their own behalf, except in a very limited number of cases. In this case Mrs. Albee was a competent witness to testify to facts occurring after the death of Absalom Funk. Rev. Stat. 1874, chap. 51, sec. 2, first exception. She was examined only as to such facts, and there was no error in the ruling of the court in that behalf.

Appellees also called as a witness Walter P. Roche, whose competency was objected to on the ground he was the husband of Sarah Roche, daughter of Sarah Funk, deceased. This objection was overruled and an exception taken. A husband is a competent witness for or against his wife “in cases where the litigation shall be concerning the separate property of the wife.” Rev. Stat. 1874, chap. 51, sec. 5. The court properly overruled the objection made.

It is the settled rule, that, in construing a will, the intention of the testator must prevail, and the whole will should be taken together, in order to ascertain that intention. Such intention, when ascertained, is the controlling element, and the technical meaning of the words used must give way thereto. Tested by this rule, we-think it easily determined that, by the will of Absalom Funk, his wife, Sarah Funk, took a life estate with power of disposition by deed or will. With this view of the case, we deem it unnecessary to critically examine many of the points made in the elaborate and learned argument made on behalf of appellees on this branch of the present controversy.

In Fairman v. Beal, 14 Ill. 244, this court said: “If land be devised to a person, with general power to dispose of the same, an estate in fee simple passes. Such a power of disposition amounts to an absolute gift of the property. But if it be devised to a person for life, with power to dispose of the reversion, an estate for life only passes; and if the devisee dies without disposing of the reversion, it goes to the heir of the devisor. The creation of the life estate controls the operation of the power, and prevents it from enlarging the estate to a fee. Nothing passes under the clause conferring the power until the power itself is exercised.”

The language used by Mr. Funk in the second clause of his will, is: “The remaining two-thirds of my real and personal estate * * * shall go to and become the property of my beloved wife during her life;” and again, in the same clause, the language is: “All the rest of the said two-thirds of my estate so given to my said wife during her lifetime.”

It was the evident intention to give, the wife an estate for life in the property, with power to dispose of the same, by will or otherwise, before her death. The construction contended for by appellees would render inoperative the expressions, “during her life,” and “during her lifetime,” and destroy the intention of the testator to give a life estate only, which we think is plainly apparent from a consideration of all the provisions of the will taken together.

In regard to the legacies, the language of the will is as follows : “ It is my will and desire that the remaining two-thirds of my real and personal estate, after the pa/yment of my debts and the payment of the legacies hereinafter named, shall go to and become the property of my beloved wife during her life.” “I give and bequeath to my said wife, Sarah Funk, said two-thirds of my estate subject to legacies.” “I desire that she shall give of said estateand, “The $500 each, and the $2000 legacies, above named, are to be paid over to said legatees at all events, as their respective estate, out of my wife’s two-thirds above named.”

We understand the rule to be that, if the legacies are made a personal charge on the devisee, an acceptance of the' devise imposes a personal liability on the devisee, and she will take the estate devised as a purchaser and in fee; but, if the legacies are charged on the estate devised, the 'devisee does not take as a purchaser, but as a beneficial devisee. We think the legacies in this will are not made a personal charge on Sarah Funk, but that they are expressly directed to be paid out of the property devised, and are made a charge thereon.

The important question, however, in this record, is whether the general devise in the will of Sarah Funk was a good appointment under the power donated by the prior will of Absalom Funk.

Sir Edward Sugden, in his work on Powers, after reviewing the cases in which was involved the matter of the execution of a power by the donee, remarks: “It is impossible not to be struck with the number of instances where the intention has been defeated by the rule distinguishing power from property. The mischief'has been increased by the courts, in some recent instances, adopting a strict construction, with a view to establish a certain rule. The particular disposition, when the power or the subject is not clearly referred to, must always raise a question of construction. Now, without breaking in upon the general rule, but, on the contrary, giving to it its full force, the intention in many of the decided cases might have been effectuated.”

In Jones v. Tucker, 2 Mer. 533, Sir William Grant, in announcing the decision of the court, said: “In my own private opinion, I think the intention was to give the £100 which the testatrix had a power to dispose of, but I do not conceive that I can judicially declare it to have been executed.”

In Nannock v. Horton, 7 Vesey, Jr. 398, Lord Chancellor Eldon said: “I am not sure the rule does not oblige the court to act against what probably might have been the intention nine times in ten.”

In Davies v. Thorne, 2 DeGex & Sm. 347, Sir J. L. Knight Bruce, Vice Chancellor, remarked, in giving judgment: “ I must, although almost ashamed to say it, decide against what I firmly and sincerely believe to have been the intention of the testatrix, that the power of appointment has not been exercised. I am bound, however, by the authorities. I can not help myself, and I must so decide.”

Criticisms upon this particular branch of the law equally severe, and emanating from judges and jurists of equal eminence, might be greatly multiplied; but they have, perhaps, no effect, unless it be to impress upon the mind that some rule has been pressed beyond its legitimate domain by at least some of the adjudicated cases.

The fundamental principle deducible from all the cases, from Sir Edward Clere’s case, in 6 Coke, 17, down, is that there should be a certain ascertainment of the intention of the donee of the power to act under the power. Three classes of cases arose in which it was demonstrated to an absolute moral certainty there was an intention to execute the power, and these were where there was a reference to the power, or to the subject or property covered by the power, or where the instrument would be inoperative ivithout the aid of the power. The cases ranging themselves in one or another of these three classes, it was judicially announced in some of the cases that there could be no execution of a power by a testator, unless the case fell in one of these three classes. This has been questioned by some judges, but the weight at least of English authority is that way. At all events, the rule which requires the existence of one of these three elements, in order to effect an execution of the power, is altogether subordinate and secondary in its character, and if circumstances could and should arise that indicated clearly the intention of the donee to work by the power, it could not be but that the artificial rule, predicated upon former experience, must give way, and the primary and fundamental rule, which requires only that the intention be made clear and manifest, would prevail.

It is evident the one rule is based upon principle, and is substantial, while the other is artificial and based upon past experiences, and it is at least within the range of possibility that future experience may develop exigencies that the past has not, and demand a recurrence to the fundamental rule. Hot only so, but we are strongly impressed that these exigencies, which are possible in the future, have, to some considerable extent, occurred in the past, and have afforded occasions for criticism such as we have quoted, and for nice and subtle distinctions, and for refined reasoning, in order to effectuate the intention of the donee of the power, and at the same time on some theory, plausible if not substantial, bring the case within one or another of the three classes referred to.

In Maddison v. Andrews, 1 Vesey, Sr. 58, the deed reserved a power to charge, limit or appoint, and in the will the word “charge” was used, and Lord Hakdwicke considered the use of a term in the power as a reference to the power. The testator, by his will, charged all his real and personal estate with his debts and legacies, and it does seem to us that to refer the words “my estate” to the property under the power, is going beyond even a liberal construction of the rule said to be deduced from Clere’s case, and that the turn made upon the word “charge” is hardly substantial. So, also, the same eminent judge, in Churchill v. Dibbin, cited by Sugden, held both the freeholds and the leaseholds covered by the power to pass by the residuary gift, and this notwithstanding the fact the testatrix had purchased other leaseholds with her savings, which other leaseholds were also held to pass. It would seem difficult to harmonize this decision with the illiberal rule contended for. It would be equally difficult to bring Walker v. Mackie, 4 Russell, 77, within such rule.

In the celebrated case of Standen v. Standen, 2 Vesey, Jr. 589, which was afterwards affirmed in the House of Lords, the gift was generally of the residue of the testatrix’s real and personal estate. The gift was held valid as to the real estate, because she had no real estate of her own; but this did not apply to the personal estate within the power, and it was equally held to pass. The ground of this decision was, that the fact of the testatrix not having real estate, gave to her disposition the character of an execution of the power over the real estate; it showed her intention to execute her power, and that when she talked of her real estate, she meant the real estate in the power; and the same intention was held to govern the entire gift. And yet, the power was not referred to in this will, the-personal estate under the power was not in any manner specified, and it does not appear but that the testatrix had other personal estate out of the power. It is going a long way to say that, where the extrinsic evidence introduced the fact that she was dealing with real estate in the power, that fact supplied, as to the personal property under the power, one of the three elements supposed to be necessary to work its transfer.

We might readily multiply instances where the reasoning of the courts has been equally far-fetched in order to bring eases, where the real intent of the testator was clear and manifest, within the pale of the secondary and technical rule spoken of above. And such cases indicate the straits to which judges have been driven to effectuate that which they were satisfied was the real intention of the testator. In the vast diversity of human affairs and conduct it is useless, vain and unsound to attempt to limit the modes by which human intention may be manifested.

It is the established doctrine, in the interpretation of wills, the intention is the polestar to direct the court. In Boyd v. Strahan, 36 Ill. 358, this court said: “ The familiar rule which controls all others in the interpretation of wills, is, that the intention of the testator to be gathered from the entire will must govern. There is no other class of 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.” It seems anomalous, then, that, in the interpretation of a will, the court should require a degree of proof that amounts to an absolute moral demonstration of the intention of the testator, before it will regard his wishes; that even that degree of proof which will justify a conviction for a capital crime, will be insufficient.

In Scrope’s case, 10 Co. 144, Lord Coke says, “ Quia non refert an quis intentionem suam declaret verbis, an rebus ipsis, velfactis.” And Chief Justice Best says, in Nowell v. Roake, infra, “ The rule given by Lord Coke is larger than that which has been deduced from the decision in Clere’s case. Lord Coke’s rule will be complied with, if the intention to execute a power be unequivocally manifested by any circumstances occurring in the case, or any act of the owner of the power, without requiring any specified overt acts of such intention.”

In the case of Blagge v. Miles, 1 Story, 427, Mr. Justice Story, of the Supreme Court of the United States, speaking in regard to the execution of powers by last wills and testaments, says: “ The main point is to arrive at the intention and object of the donee of the power in the instrument of execution, and that being once ascertained, effect is given to it accordingly. If the donee of" the power intends to execute, and the mode be in other respects unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. I agree that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation. If it be doubtful, under all the circumstances, then that doubt will prevent it from being deemed an execution of the power. All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it should appear by words, acts or deeds demonstrating the intention.”

We find no case so like the one before us in its circumstances as Nowell v. Roake, first decided by Lord Chief Justice Best, in the Court of Common Pleas, (2 Bing. 503,) after-wards reversed in the King’s Bench, (5 Barn. & Cress. 730,) and the judgment of the King’s Bench affirmed in the House of Lords, (6 Bing. 475.) We are not constrained by the decisions in this ease as binding authority, as they were not rendered until a period long subsequent to our Bevolution.

For the purposes of condensation we quote from Sugden on Powers, vol. 1, side page 383, his statement of the point decided, and of the case: “Although the testator has the entirety of an estate, yet if any share of it is vested in him only for life, with a power of appointment, a general devise of all his estates will only pass the share of which he is seized in fee, and a direction which might properly be applied to the entirety will not be construed to enlarge the gift. This was decided in Nowell v. Roake, when one moiety of an estate was settled by the testatrix to her husband for life, remainder to herself for life, remainder to such uses as she should appoint by deed or will, and for want of such appointment to the children of the marriage, with remainders over, and the testatrix afterwards bought the other, moiety, which was conveyed to her in fee, and she had no other real estate, it was held in the Court of Common Pleas that a devise by her of all her freehold estates to one for life, on condition that out of the rents thereof he should from time to time keep such estates in proper and tenantable repair, with remainders over, passed the entirety of the estate, that is, operated at once as an execution of her power over one moiety, and a devise of her interest in the other. The court relied upon the general intention, and laid some stress upon the condition to keep the estate in repair, as the devisee could not keep an undivided moiety in repair.”

Lord Wynford, in the House of Lords, observed (Sugden, side, page 384,) “ that he believed that nine hundred and ninety-nine persons out of a thousand would say, on reading this will, that the testatrix did intend by it to pass her whole property, and this is a question of intention. He knew that it was decided in Sir Edward Clere’s case, that a will can not operate as an execution of a power, unless it refers to the power or the subject of it, or unless the will can have no operation without supposing that an execution of the power was intended. But he conceived that here the estate or subject of the power is referred to in the will, and that this is a case that never occurred before. The words of the will are, ‘ I give and devise all my estates in London and Surrey,’ and she adds a condition to repair, yet it is said that these words may be satisfied by supposing that they refer only to that moiety which she had in absolute property; but he defied any ingenuity to show that the words applied only to the one moiety, and not to the other; that the tenant for life was to repair one moiety, and leave the other unrepaired. The testatrix is clearly speaking of the whole of her property, and this will may be held to apply to all, and to be an execution of the power, in perfect consistency with the doctrine in Sir Edward Clere’s case.”

Chief Justice Best said, in delivering the judgment of the Common Pleas, “ It has long been settled, that an express declaration of the intent to execute a power is not necessary; on the other hand, no terms, however comprehensive, although sufficient to pass every species of property, freehold and copy-hold, real and personal, will execute a power, unless they demonstrate that a testator had the power in his contemplation, and intended by his will to execute it. It has often been said that a power is not executed, unless the power or the estate be referred to by the will, or the will can have no effect except as an execution of the power. We are not disposed to say these are the only cases, and we have high authority for saying they are not. They are only put as instances of the strong and unequivocal proof that is required; but if there were a rule that courts of law are only permitted to hold a power well executed in these instances, we should say that this case comes within it, for we think the estate is referred to.”

He further said: “We think it impossible to impute any other intention to Mrs. Trymmer than that of executing the power she had reserved to herself in the estate in question; and we think that intention is demonstrated by every part of the will, and particularly by a reference to the estate over which she had this power. Mrs. Trymmer being seized of one undivided moiety, and having a power over the other undivided moiety, of which power she was the creator, gives all her freehold estates in the city of London and county of Surrey, or elsewhere, to her nephew, John Roake. This is not a description of her interest in the estates, but of the estates, and shows an intent to pass all the property that she had a right to dispose of. I should be inclined to think these words referred to both parts of this property.”

Mr. Sugden, in commenting on this case, says: “In a case like Nowell v. Roake, the nature of the property might, without introducing any uncertainty into the rule, be considered to manifest a sufficient intention. I hold an estate as an entirety, but the tenure is in moieties, and one is subject only to my appointment; I give, by my will, all my estates to one for life. The rule would exclude that moiety within the power, if it stood there, but I direct that the tenant for life shall keep the estates in repair. The estate can not be repaired by undivided moieties, although two tenants in common may repair the estate; and therefore the direction might, in favor of the intention, have been held, according to the decision in the Court of Common Pleas, as evidence that she was dealing with the entirety.” This, it must be borne in mind, Avas said by Mr. Sugden from the standpoint that there can be no sufficient demonstration of an intention to execute a power except in the three classes of cases to which we have referred. But, as we have intimated, this stand-point we are not prepared to concede.

In Blagge v. Miles, Mr. Justice Story has criticised the opinion of Lord Chief Baron Alexander, in delivering the judgment of the judges in the House of Lords in this case of Nowell v. Roake, and in re-affirming the doctrine as to the enumerated three classes of cases, and he says, “ Lord Chief Justice Best has put these classes of cases upon the true ground. They are instances of the strong and unequivocal proof required to establish the intention to execute the power; but they are not the only cases.”

But, to get closer to the substance of the matter now before us : Sarah Funk owned one undivided third of this estate in fee, and, under the will of her deceased husband, she had a life estate in, and full power and authority to dispose of, the other undivided two-thirds as she might think proper, by will or otherwise, before her death. In her last sickness she makes her will, in which, after certain specific bequests of personal property, she makes disposition of “ all and singular the rest, residue and remainder of my estate, real and personal, of whatever kind and wheresoever situated.” By any construction which can be given the will she disposed of the one undivided third that she held in fee, and, so far as the right to hold and enjoy during life and dispose of as she saw fit either before or at death could make it hers, the other two-thirds was hers also. When, therefore, she spoke of all her real estate, and the undivided one-third was necessarily included, did she not refer also to the undivided two-thirds? In the language of Lord Chief Justice Best, “ This is not a description of her interest in the estates, but of the estates, and shows an intent to pass all the property that she had any right to dispose of.”

The case of the property not subject to the power being an undivided interest in the same property the other undivided interest in which was covered by the power, seems never to have arisen before Nowell v. Roake. The property not subject to the power to answer the requirement was present there as well as here; but neither that case nor this turns upon the last point determined in Sir Edward Clere’s case, that “ the devise ought of necessity to enure as a limitation of an use, or otherwise the devise would be utterly void.” These cases proceed upon another ground entirely. They stand upon the ground of the general intention to be gathered from a consideration of the whole will and from the situation of the property. The fact of co-existing undivided interests, one within and the other without the power, is but one element in the proof of intention, but a circumstance of great weight.

Here, too, the disposition "of her real estate of whatever kind was coupled with an order and direction to sell “my real estate,” and make all deeds and conveyances “ necessary to assure and perfect in the purchaser or purchasers thereof the full title thereto,”—that is, the title to her real estate, not the title to her interest in the real estate.' These words would seem to apply to the whole property and to refer to both parts thereof, as vrell that held under the power as that held by a different tenure. And other parts of the will specifically disposed of other property in which she only had a life estate under the will of her deceased husband and a like power of disposition. The evidence shows she had no gold watch except one bequeathed to her for life with the like power of disposition, and that most of the furniture she had was held by like tenure and with like power of disposition. And yet, just preceding the disposition of her real estate, she bequeathed “my gold watch” to the nephew and namesake of her husband, and she bequeathed “all my household furniture” to her daughters. Now, she had no authority to bequeath the watch and the furniture which had been her husband’s, except by virtue of the power in her husband’s will. She had in such property, strictly speaking, only a life estate with full power of disposition before her death. That she did exercise the power of disposition delegated by the prior will, in reference to these articles of personal property, and then proceeded to dispose of “my” real estate, using the same language she had used in bequeathing the chattels “ my watch,” “ my furniture,” would seem to afford strong evidence she intended her will to work not only by the interest, but by the power. It has been long settled that a will may operate both as an appointment under a power and as a conveyance of an interest. All that is required is that it should appear it was so intended.

In Hughes v. Turner, 3 Mylne & Keene, 666, the Master of the Rolls, Sir John Leach, said: “ There is a gift here of a gold watch, piano forte and music books, which she could only dispose of by the execution of her power. It is argued, that she had assumed and treated these as her own property, independently of her sister’s will. No such inference judicially arises. A gift of the rest, residue and remainder of her real and personal estate imports a gift of the rest and residue of that estate which she considered her own and had previously partly disposed of. . A gift of that which a testator can not dispose, except in execution of a power, necessarily manifests an intention to execute that power.” The matter of the Cardiganshire estate was also relied on by the Master of the Rolls in this case, but the decision of the House of Lords in Bowes v. Bowes, effectually disposed of this Cardiganshire matter. And so the cause came up again for a rehearing before Sir C. C. Pepys, his successor as Master of the Rolls. It is true the judgment was otherwise upon the rehearing, principally by force of the Bowes case, but upon this point now in review the consideration of the court only was that a reference to part of the subject, or to some of many subjects of the power, will not be sufficient to make a will operate as an execution of the power, when there is no other indication of an intention to execute it. But here, we think there are other indications of an intention to execute, and we only regard the bequests of the watch and furniture as cumulative evidence, derived from the face of the will itself, of the intent.

When the subject of the power is real estate, and the question is as to the execution of the power by the devise, it is the well settled doctrine, you may always look at the condition of the property and the facts dehors the will, to arrive at the intention of the testator. These facts are, in addition to the evidence in regard to the watch and furniture, that Sarah Funk held, under the will of her deceased husband, a life estate in two-thirds of the south thirty feet of lot 6, with power to dispose of the same as she thought fit • that, after the death of her husband, she purchased the other undivided one-third interest, and the same was conveyed to her in fee; that she also purchased other real estate in fee, and that at the time of the execution of her will and of her decease, she held the entirety of said south thirty feet, one-third in fee simple absolute, and the other two-thirds for life, with full power of disposition by will or otherwise. There is no judicial presumption that at the time she made the devise she had forgotten either that she owned this thirty feet, or by what tenures she held it, or that she had power of appointment under the will of Absalom Funk as to the undivided two-thirds. The presumption would be she knew her own titles, and the powers she had in reference to the property she held and enjoyed. This presumption is made manifest fact when we see her disposing in her will of property which she could legally only dispose of by virtue of the powers in the first will. It would hardly be contended the gift of the watch was not a valid execution of the power in the first will, so far, at least, as that' watch is concerned. But it was not a good execution of the power unless she: intended to execute it. The fact she did specifically execute it, conclusively establishes that she had such intention, and, having such intention, she must have known and remembered the power vested in her by the first will. She thus knowing and remembering the powers she had, and devising all her real estate to trustees to be sold as soon as the same could be done,0and the proceeds divided among her children and grandchildren, is there any reasonable and consistent theory other than that she intended to execute the power, and wished the entirety of the thirty feet of ground sold ? Again, there is this further fact dehors the will, that, in the absence of an appointment by her, the undivided two-thirds interest she had under the power would have to be divided among two hundred and twenty-two heirs of her deceased husband. So that, unless we find an intent to act by the power, she was leaving an undivided one-third interest in this small parcel of land to be held in common with two hundred and twenty-two tenants of the undivided two-thirds interest. This would appear absurd, especially when considered in connection with the injunction for a speedy sale of her estate, and the caution in her will against any sacrifice of her property.

It is a question of intention. If it were only admitted that the rules by which that intention may be ascertained were not fixed and settled, then it can not be doubted but that the evidence afforded by this will and this record establishes that intention beyond a reasonable doubt. If the intention is clear and manifest, it is all that is required by that which we have designated as the fundamental rule; to require more would be, as is suggested by Justice Story, to make “the cases govern the general rule as to intention, and not the rule the cases.”

The demands of substantial justice do not require we should follow the subtle niceties of some of the English cases; and such course would be inconsistent with the liberal rules we have heretofore announced should govern in the ascertainment of the intentions of testators.

The English Parliament has' radically changed the law of that country by the statutes of 7 Will. IV. and 1 Vict. ch. 26; and that, too, to such an extent that a general devise now operates as an execution of a general power of appointment, unless a contrary intention appears. As we have seen, Justice Story refused to follow the technical rule established by some of the cases.

In Andrews v. Brumfield, 32 Miss. 108, and in White v. Hicks, 33 N. Y. 383, the courts expressly repudiated the doctrine of the English cases estáblishing that the amount of the testator’s personal property could not be inquired into to show an intention to execute a power of appointment, and the decisions were in no way predicated upon local statutes. And in Amory v. Meredith, 7 Allen, 397, the Supreme Court of Massachusetts, also in the absence of any statutory provision, decided in the very teeth of the rule said to be deducible from Clere’s case; and the case is a strong one to show the rank injustice that might be done by an adherence to that rule.

There are no former decisions of this court that militate against the rule we now announce. In Wimberly v. Hurst, 33 Ill. 173, we remarked that where a conveyance is general it will be held as an execution of a power, if it would otherwise he wholly inoperative. This is a mere reiteration of the real point in Clere’s case, et res magis valeat, quam pereat. It is entirely consistent with what we now hold; and we are ready to repeat it when occasion requires. In Coffing v. Taylor, 16 Ill. 474, and in Davenport v. Young, id. 552, the court was speaking in reference to the construction to be given to deeds and not in regard to wills, and what was said in those cases was properly said under the circumstances of the cases then before us. As was said by us in Butler v. Huestis, 68 Ill. 596, “we are disposed to regard what we must know was the clear intention of the testatrix, which we gather from the will itself when construed in connection with the power, as the all controlling element in the decision of the case. If we are to interpret wills in the light of precedents, we ought to follow those that are most in harmony with the genius and laws of this country, and the manners and customs of its people. We ought rather to be guided by those that would most effectually do justice.”

We prefer, then, to follow the broad and liberal rule announced by Lord Coke in Scrape’s case, and by Mr. Justice Story in Blagge v. Miles, and that is based upon principle, and thus carry into effect the intention of the testatrix, rather than to defeat such intention by following the narrow and technical rule predicated upon the cases. The provisions of the whole will taken together and the facts dehors the will clearly indicate, to our minds, an intention to pass the whole estate, and we think the devise should, in favor of the intention, be held to work both by the interest and by the power, and to pass the entirety.

We find no error in the record, and the judgment of the circuit court must be affirmed.

Judgment affirmed.

This opinion was ¿led at the January Term, 1879.