I cannot agree with the majority opinion. It is predicated upon the proposition that there are two conditions precedent contained in the codicil, and that the failure of either condition would cause the gift over to take effect and deprive appellees of their share in the estate. One condition is that George Winterland survive his wife; the other that George be divorced from his wife. The opinion finds that one condition was legal and the other against public policy, and that the legal condition was not performed, since George died before his wife, and therefore the codicil is enforcible as to the gift over to appellants. The objection to this conclusion is that both of these provisions are contained in the same sentence and are so closely connected, both in grammatical form as well as in thought and implication, as to render the whole codicil contrary to public policy. *Page 390
It is undoubtedly proper to provide in a will that an estate may or may not vest, depending upon the survival of a named individual. This case presents, however, one where the children of a son are disinherited unless the wife and mother either dies before the son or is divorced from him. It is perfectly clear to my mind that the central idea of the testator was to compel the son to get rid of his wife. If she died naturally or otherwise or was divorced the son took his full share, otherwise not. Connected as these provisions are in the same sentence, it seems to me that both are clearly against public policy; that the supposed legal condition is so closely connected with the admittedly invalid one and obviously for the same purpose, that therefore even though one might be legal, yet the combination of the two, providing, as they do, for the only means by which a separation of husband and wife may be terminated, renders the whole provision void.
I think Tripp v. Payne, 339 Ill. 178, fully supports this proposition. It is there said: "If the fourth item of the will was an essential and indivisible part of the trust scheme of the testatrix the invalidity of the provision will invalidate the whole will."
So in this case if the provision contained in the present codicil was an essential and indivisible part of the means by which the testator hoped to prevent his daughter-in-law from having any interest in his estate, it cannot be regarded other than one unenforcible provision rather than a combination of an invalid one and a lawful one. I think the majority opinion entirely overlooks the implication in the Tripp case, and for that reason I think the decree of the circuit court should be affirmed.
STONE and WILSON, JJ., concur in the foregoing dissenting opinion. *Page 391