Updike v. Tompkins

Citations

• 100 Ill. 406
• 1881 Ill. LEXIS 112

Syllabus

<p>1. Weed—construction—as speaking from what time. -As a general role a will is held to speak from the death of the testator, but this is otherwise where the language used repels the presumption, taking into consideration the entire instrument.</p> <p>2. Same—particular expressions must yield to general purpose. Particular expressions will-not control where the whole tenor or purpose of the will forbids a literal interpretation of the specific words. Wills, like contracts and other writings, must be construed according to the intent of the maker, and that must be ascertained from an examination of the instrument and all its provisions, without the aid of extraneous testimony.</p> <p>3. Same—construed as to cancellation of notes—whether embracing notes acquired after the making of the will. A will provides that in case the testatrix should survive her mother, the estate should descend and be distributed as in case of intestacy, and then contained this clause: “I hold a number of notes against my brother, George W. Updike,-—one of these notes is for $900, and I intend that one to be cancelled absolutely at my death, and given up to him. As to the others, if I survive mother, then at my death I want all the other notes cancelled and surrendered to George W. Updike, but if mother survives me, then George must pay the interest on the other notes until her death, and then the other notes are to be cancelled and surrendered to him, the said George; and.I will that said $900 note shall be given up as aforesaid, and I declare that said George W. Updike, in case I.survive my mother, shall inherit equally in all my estate with my other heirs, notwithstanding the cancelling and surrendering of the said notes, his full share therein. ” The testatrix did survive her mother. At the time of the death of the testatrix she held six notes upon her brother. The note for $900, spoken of in the will, had already been surrendered to the maker by the testatrix. There was but one of the re