Keeler v. Merchants Loan & Trust Co.

97 N.E. 1061, 253 Ill. 528
CourtIllinois Supreme Court
DecidedFebruary 23, 1912
StatusPublished
Cited by18 cases

This text of 97 N.E. 1061 (Keeler v. Merchants Loan & Trust Co.) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keeler v. Merchants Loan & Trust Co., 97 N.E. 1061, 253 Ill. 528 (Ill. 1912).

Opinion

Mr. Justice Farmer

delivered the opinion of the.court:

• The rules authorizing extrinsic writings to be incorporated by reference to them by the testator in his will, so as to entitle them to be given testamentary effect, will be found stated in all text books on the subject of wills and in many judicial decisions. There is no conflict in the authorities and there can be no misunderstanding as to the rules of law on this subject, but their application to the will in this case is controverted. Three cardinal rules govern the incorporation of an extrinsic writing in a will by reference so as to give the writing testamentary effect. They are sufficiently stated in the following quotations to get a clear understanding of them and no other authorities need be referred to for that purpose:

“From the proposition that a will may be written upon different pieces of paper, connected only by the sense, it follows that a will may by reference incorporate into1 itself, as completely as if copied in full, some other paper which in itself is not a will for lack of execution. In order so to incorporate, three things are necessary: (1) The will itself must refer to such paper to be incorporated (a) as being in existence at the time of the execution of the will, and (b) in such a way as to reasonably identify such paper in the will, and (c) in such a way as to show testator’s intention to incorporate such instrument in his will and to make it a part thereof. Thus, a paper placed with a will is not a part thereof where the will shows no intention to incorporate it. (2) Such document must, in fact, be in existence at the time of the execution of the will. If this were not the rule, testator could, by executing a will and incorporating therein a document to be executed in the future,'create for himself a power to dispose of his property in a testamentary manner by an instrument not executed in accordance with the Statute of Wills. (3) Such instrument must correspond to the description thereof in the will and must be shown to be the instrument therein referred to. In discussing incorporation by reference it must first be observed that these three requisites must co-exist in order to incorporate a foreign paper into the will. The absence of any one of them will prevent such incorporation. The will must refer to the instrument to be incorporated as in existence. A reference in the will to the instrument incorporated as ‘made or to be made’ does not refer to it clearly as being in existence, nor does a reference to it as a schedule of property ‘hereafter named.’ Since the document to be incorporated must be referred to in the will as in existence at the date of executing such will, it follows that in the absence of such reference parol evidence is not admissible to show that the document was .in existence at the time of executing the will.” (Page on Wills,—1901,—secs. 162, 163.)

“In order that a writing extrinsic tq the will may be validly incorporated by the reference of the testator to it in the will, three facts must be shown. In the first place, the testator in the will itself must refer to the-writing as being in existence at the date of execution; secondly, it must be proved (and this, of course, can only be done by parol evidence,) that the writing was, in fact, in existence at the date of the will; third, the writing which is offered for probate as a part of the will must be identified by the proponent as the writing which was referred to by the testator.” (1 Underwood on Wills, sec. 280.)

“The reference must indicate that the writing has already been made,—that is, must speak of it as then existing. It is not enough that the writing was, in fact, made before the will. The will must speak of it as if then made.” (Rood on Wills, sec. 250.)

“As to a paper not actually in existence but hereafter to be prepared and executed, no reference in the existing will can give it any valid testamentary effect, independently of its own proper execution as a will in conformity with the statute, hence the testator cannot reserve a power to dispose of property at a future time by what is tantamount to a will informally executed, nor to select a legatee under some subsequent writing. Indeed, the written reference in the will to a paper as something to be afterwards prepared sufficiently debars that paper from being legally incorporated with it, for parol evidence of the time of preparation is held inadmissible to contradict such reference.” (Schouler on Wills,—3d ed.i—sec. 281.)

Whether any notes are so referred to in the will of Patrick J. Sexton as to bring them within the rules and authorize giving effect to them as bequests, if any such instruments were found among the testator’s papers and effects or their unauthorized destruction was proven, depends upon the meaning of -the language used in the ninth paragraph of the will.

Patrick J. Sexton made two wills prior to making the on.e here under consideration. One was made in 1888 and one in June, 1893. The proof as to the existence of the notes upon which the claims of plaintiffs in error are based when the last will was made, in 1902, will be more fully referred to hereafter, but in order to a clear understanding of the discussion to follow, it is proper to state that plaintiffs in error claimed, and their proof tended to show, that designating certain beneficiaries by notes payable after Sexton’s death was a part of the schemé of each of the wills he executed, and that he made notes for that purpose on each occasion when he executed the wills of 1888 and 1893. Plaintiffs in error contend that the notes designating them as beneficiaries were made before and were in existence when the will of 1893 was made, in which language similar to that of the last will was used, and that those notes were never destroyed by the testator but were in existence when the last will was executed and were the notes referred to by the testator in that will.

The language used in the third, fourth, fifth and sixth paragraphs is not a reference to a note or notes then in existence. The direction of said paragraphs that “the principal of any note signed by me” in favor of the persons mentioned in said paragraphs might as well refer to a note afterwards to be executed as to one then in existence, and therefore fails to meet one of the essential tests,—that the writing must be referred to in the will as then in existence. The first sentence in the ninth paragraph is a general direction that “any note or notes” signed by the testator payable after his death “to any person or persons” be treated as bequests in behalf of the payees designated, the principal of such notes to be paid out of the testator’s estate. .This language, standing alone, would also fail to meet the requirement that the note or notes must be referred to in the will as being then in existence. In the next sentence, which is the only other sentence in the ninth paragraph of the will, the testator says: “I have heretofore, and may hereafter, adopt this means of designating the persons I wish to be remembered as beneficiaries under my last will and testament.” Whether, if there were notes of the kind described in existence, they were so referred to as to bring them within the rule mentioned, depends upon the meaning and construction to be given this last sentence of the ninth paragraph.

The first sentence of the paragraph, as we have stated, expresses the will of the testator that notes made payable to persons after his decease and signed by him should be treated as bequests in favor of the payees.

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Cite This Page — Counsel Stack

Bluebook (online)
97 N.E. 1061, 253 Ill. 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keeler-v-merchants-loan-trust-co-ill-1912.