Estate of Shirley

THOMPSON (IRA F.), J.

This is an appeal from a decree of partial distribution. The facts are as follows: The

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decedent executed his last will and testament on August 15, 1914, by which he declared his property to be his separate estate, that “no other person or persons have any interest therein except my only son and only daughter” and that he executed the instrument “for the sole purpose of having” his “property equally divided between” his “son, Lafayette • Shirley, a resident of Rockford, Illinois, and” his “married daughter, Jessie C. Lake, of Rockford, Illinois, and Redondo Beach, California.” He further states that the property is to be distributed to his “son and daughter or their children, share and share alike, that is to say, the said trustees are to divide the said property equally between my said son and daughter if living.” Lafayette Shirley, the son, had a daughter named Mrs. Nettie Wilson. On April 8, 1926, the decedent executed a codicil by which he gave to Mrs. Wilson a one-sixth part of his estate and a two-sixths thereof to his son, to be held in trust, however, for the granddaughter, with the right on the part of the son to use the income during his life. Jessie Lake, who also had a daughter, named Frances MePhail, died on March 19, 1921, and on February 21, 1923, the testator executed an olographic codicil, which, with corrections appearing, reads as follows: “By reason of my Soninlaw Frank L. Lake pleding the statute of limitations on a Sixteen Hundred dollar promissory note for loan of $1600.00 Hundred Dollar he and his heirs and assigns are disinherited and their portion is hereby devised to my nephew Lyman B. Goff, and attached to my L. W. T. and made a part of my bequest is my wish and will on account of Lake’s actions.” On petition therefor by the executor and Frances MePhail, the court, over the opposition of Lyman B. Goff, ordered a partial distribution to Mrs. MePhail of $9,000.

For the sake of clarity in arriving at a conclusion as to the import of this last codicil let us put out of mind the thought that the disinheriting language which we have quoted is a separate instrument, and consider it as though it were a paragraph in the original will. Such a mental picture is consistent with the rules of construction adopted as aids in determining the intent of the testator. For example, it is said that “The Will and the codicils together constitute the testamentary disposition of the property, and are all to be considered for the purpose of arriving at the intention of