delivered the opinion of the court:
Section 10 of chapter 39, Hurd’s Statutes of 1905, provides as follows: “If, after making a last will and testament, a child shall be born to any testator, and no provision be made in such will for such child, the will shall not on that account be revoked; but unless it shall appear by such will that it was the intention of the testator to disinherit such child, the devises and legacies by such will granted and given, shall be abated in equal proportions to raise a portion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died intestate, and a marriage shall be deemed a revocation of a prior will.”
The sole question for determination in this case is, whether the devise under the will should be abated to raise a portion for appellant equal to that which he .would have been entitled to receive had the testator died intestate.
Appellant’s contention may be reduced to two principal propositions: First, whether the testator intended by his will to disinherit his after-born child must be determined by the laws of the State of New York, where the testator was domiciled; second, under section 10 of chapter 39 of our statutes, above set out, no evidence outside of the will itself is admissible, and under said section and the words of the will appellant is entitled to a one-fourth interest in the real estate involved. If either of the foregoing propositions is sustained, then that the decree below is erroneous would seem to follow as a necessary conclusion. We will consider these two propositions in the order in which they are stated.
First—Appellant concedes that the devolution of real property is governed by the law of the place where the real estate is situated, but he insists that in determining the testator’s intention the law of New York must govern. To say that the intention of the testator must be determined under the laws of his domicile is equivalent to saying that the construction of a will is governed by the laws of the testator’s domicile. There is no perceivable difference between the construction of a will and determining the intention of the testator, unless it may be said that ascertaining the intention of the testator is the object to be sought and construction is the means of attaining that object. Whatever may be the rule with respect to movable property, we regard the law as firmly established in this State that all instruments affecting the title of real estate situated in this State must be governed, as to their execution, construction and legal sufficiency, exclusively by" the laws of Illinois, and not by the laws of a foreign country or sister State wherein the maker may reside at the time of their execution.
In Redfield on Wills (vol. I, p. 398,) it is said: “It is scarcely necessary to state, that in regard to real property the mode of execution, the construction and the validity of a will must be governed exclusively by the lex ret sitæ. The descent of real estate, as well as the devise of it, is governed exclusively by the law of the place where the property is situated. It would not comport with the dignity, the independence or the security of any independent State or nation that these incidents should be liable to be affected, in any manner, by the legislation or the decisions of the courts of any State or nation besides itself. This has been a universally recognized rule of the English law from the earliest time, and is so unquestionable that we should scarcely feel justified in occupying much space in reviewing the cases.”
In City Ins. Co. v. Commercial Bank, 68 Ill. 348, this court, on page 353, said: “Mr. Story concedes that the courts of England and the United States have arrived at opposite conclusions as to the effect of statutable transfers of movable property under the bankrupt or insolvent laws of the debtor’s domicile, but he adds: ‘All the authorities in both countries, so far as they go, recognize the principle, to its fullest extent, that real estate or immovable property is exclusively subject to the laws of the government within whose territory it is situated. Indeed, so firmly is this principle established, that in cases of bankruptcy the real estate of the bankrupt situated in foreign countries is universally admitted not to pass under the assignment, although, as we have seen, there is great diversity of opinion as to movables.’—Story on Conflict of Laws, sec. 428.” See, also, West v. Fitz, 109 Ill. 425.
In Wunderle v. Wunderle, 144 Ill. 40, this court, on page 53, said: “It is a general rule of the common law that the title to real property must be acquired and passed according to the lex rei sites. This rule not only applies to alienations and acquisitions made by the acts of the parties, but also to estates and rights acquired by operation of law. The descent and heirship of real .estate are governed by the law of the country where it is located. (Story on Conflict of Laws, secs. 424, 448, 483, 509; Stoltz v. Doering, 112 Ill. 234.) This principle, originally applicable as between countries entirely foreign to each other, also prevails as among the States of the American Union.”
In Harrison v. Weatherby, 180 Ill. 418, this court had before it a will executed in the State of North Carolina by Richard Smith. There were no witnesses to the will, and apparently the laws of North Carolina recognized the validity of holographic wills without attestation. The will, on its face, showed that it had been written by the testator in person, and attestation by witnesses was dispensed with because the law of that State recognized the validity' of a will proven to be in the handwriting of the testator. The will affected the title to a large body of real estate in Illinois. In the course of the opinion in that case, on page 435, the following rule was laid down by this court: “The validity and construction, as well as the force and effect, of all instruments affecting the title to land depend upon the law of the State where the land is situated. This rule includes wills, as well as deeds, contracts or agreements; and it includes the form and mode of the execution of the will as well as the power of the testator to make the devise or disposition of property contained in the will.—West v. Fitz, 109 Ill. 425; McCartney v. Osburn, 118 id. 403; City Ins. Co. of Providence v. Commercial Bank of Bristol, 68 id. 348; Wunderle v. Wunderle, 144 id. 40; Ford v. Ford, 70 Wis. 44; Robertson v. Pickrell, 109 U. S. 608; McCormick v. Sullivant, 10 Wheat. 192; Darby v. Mayer, 10 id. 465.”
It will be noted that in the cases above cited the construction of instruments affecting real estate, as well as their force and validity, is governed exclusively by the lex rei sitce. Judicial construction is the process of applying natural methods of finding and weighing evidence to discover the fact of intention. To say that the intention of a maker of an instrument is to be determined by one law or set of rules and that its construction is to be by another and different law or set of rules is contradictory and absurd.
The only authorities in this State that appellant cites in support of his contention are Carpenter v. Browning, 98 Ill. 282, and Freund v. Freund, 218 id. 189. Neither of these cases- is in point. In the Browning case the question presented was as to the effect of the Married Woman’s act of 1861 upon a devise in trust for the use of a married woman, made prior to the act of 1861. In that case, after the act of 1861 was passed the usee sought to compel the execution of the trust by compelling a conveyance to be made by the trustee to the beneficiary. It was held that the Married Woman’s act of 1861 did not execute the trust nor entitle the beneficiary to a conveyance where the will imposed active duties on the trustee. In disposing of that case the court held that the state of the law at the time of the execution of the will might be referred to for the purpose of arriving at the intention of the testator, and that the rights of 'the parties were to be determined under the law as it existed at the time of the testator’s death. The case lends no support to appellant’s contention that a law of a foreign country or sister State should govern this court in the construction to be given to the will now under consideration. Freund v. Freund involved the right of the insured, under a New York life insurance policy, to change the beneficiary without the consent of the company properly endorsed on the policy. Under the statute of New York a beneficiary could not be changed except by written endorsement upon the policy by the company. It was held that the assured was bound by the statute of New York. That case has no application whatever to the facts of the case in hand. The case does not relate to real estate or other property located in this State. The contract of insurance was executed in the State of New York, and, so far as the case shows, was to be wholly performed there, and, of course, was made and accepted in view of the statute relating to a change of beneficiaries.
The authorities relied on by appellant outside this State, so far as we have been able to examine them, seem to be referable rather to the doctrine, recognized in this State as well as in those jurisdictions wherein the cases are found, that in determining the true intent and meaning of a will the court will have recourse to the circumstances of the testator and of his family and affairs, and of other facts which it can be shown will in any way aid the court in the right interpretation of a testator’s will. (Proposition 5 of Wigram’s Rules, p. 142, Wigram on Wills.) Under this rule we have no doubt that if a will executed in a foreign country contains words or phrases which have a local or domiciliary meaning different from the meaning of the same words or phrases in this State, with which the testator is shown or presumed to have been acquainted, extrinsic evidence of such domiciliary meaning may be heard to enable the court to read the will with the same light under which it was written. In this view it can make no difference how such domiciliary meaning was established. It may be by the usage or custom of merchants or traders in the place where the instrument was executed, or may be a meaning established by statute or judicial decision. But however established, the usage or law, and the meaning of the words thereunder, are proven, not to establish a rule of law binding on the court charged with the proper interpretation of the will, but simply as a fact or circumstance .proven to enable the court to arrive at a correct construction under the laws of the forum.
It is a well established rule that parol evidence may be received of a usage or custom to explain the meaning of terms used in a written contract that would otherwise be ambiguous. Indeed, under the more recent authorities the rule seems to be established that such evidence is admissible to explain the meaning‘of, but not to contradict, the instrument, even though no ambiguity exists on the face of the instrument, (1 Elliott on Evidence, sec. 607, and cases there cited; see, also, 2 Page on Contracts, sec. 1108, and citations there made.) As applied to the construction of instruments affecting the title to real estate, the above rule furnishes the only ground upon which a court of this State is warranted in hearing evidence as to the law of the State or government of the maker’s domicile, and when, under these limitations and restrictions, it is heard, it is only to be considered as an extrinsic fact brought forward by extrinsic evidence to enable the court to properly interpret the true intention of the testator. While the language selected by courts and law writers in applying this rule. has not always been entirely clear, yet when the authorities are carefully considered and analyzed in the light of the facts involved, we do not believe a well considered case can be found which holds that the law of the domicile of the maker of an instrument affecting the title of real estate, respecting the construction thereof, is binding on a court where the real estate is situated, when called on to construe and enforce such instrument.
Our conclusion as to appellant’s first proposition is that it cannot be sustained, and that the will is to be construed,— that is, the intention of the testator must be determined,— by the law of this State.
Second—Appellant’s second proposition is, that under section 10 of chapter 39 of our statutes no evidence outside the will itself is admissible, and that under said section and the words of the will appellant is entitled to a one-fourth interest in the real estate involved. In so far as the court below permitted parol evidence of the testator’s statements, either before or after the making of the will, the ruling is clearly erroneous. The statements of a testator can not be received to prove what is intended by the written words of the will. Where an issue is raised as to the testamentary capacity of the testator, then what he says and what he does, if not too remote from the time when the will was executed, becomes original evidence and is admissible under the well established rules of evidence. The erroneous ruling of the court on the admission or exclusion of evidence will not' require us to reverse the decree if upon the whole record a proper conclusion has been reached and there is competent evidence in the record sufficient to support the decree.
Appellant insists that section 10 of chapter 39 ex vi termini precludes the court from looking to anything except the words of the will itself. This argument is based upon the phrase, “unless it shall appear by such will that it was the intention of the testator to disinherit such child,” his contention being that the intention of the testator must be expressed in words in the will, and that it is not sufficient that such intention is disclosed by the application of the usual rules of interpretation, especially if, in the application of those rules, parol evidence must be resorted to. This section of the statute was not enacted for the purpose of working a change in the law relating to the construction of wills. Manifestly, it was never intended by the legislature that wills to which this section applied should be construed by any different rule than other wills to which said section does not apply. In a legal sense, everything pertaining to a testamentary disposition of property must appear by the will, but it often becomes necessary to resort to extrinsic evidence to determine what persons or things do, in fact, appear by the will. The language of the will may be such that the court cannot determine with certainty what intention is expressed in the will, but when read in the light of surrounding circumstances the court can clearly see what before was not discernible. It was not discernible, not because it did not appear from the will, but because the reader did not have the aid of the lights furnished by the surrounding circumstances. By way of illustrating our meaning, take Lord Cheney’s case, 5 Rep. Ch. 69. There the testator had two sons, both baptized by the name of “John.” He devised his lands to his son John, without in any way designating which one of them he referred to. When the testator used the name “John” he meant a particular son, but the question was, which one did he mean? Upon resorting to extrinsic evidence it was shown that the elder John had been long absept and was supposed to be dead, while the younger John was known to be alive at the time the will was made. Now, in the light of these circumstances it was readily decided that the younger should take the devise. Another illustration is afforded by the case of Bradley v. Rees, 113 Ill. 327. There the residuary clause devised all the remainder of the testator’s lands “to the four boys.” The testator had seven sons, but the parol proof showed that three of them were men, married, and had families of their own, while four of them were minors, residing with the testator. It was held that the testator intended the four minors to have the estate. In these and all like cases where a resort to parol evidence is allowable, it is not for the purpose of importing into the will a new intention not expressed in the will, but for the purpose of enabling the court to determine what the intention, in fact, is, as expressed by the words of the testator in the will.
We regard the case of Hawhe v. Chicago and Western Indiana Railroad Co. 165 Ill. 561, as directly in point and conclusive against the contention of appellant on this question. Indeed, we do not see how it would be possible to sustain appellant’s contention without overruling that case. There, as here, the will gave all of testator’s property, real, personal and mixed, of every kind whatsoever, to testator’s wife. At the time the will was executed the testator had two children, and afterwards a third child was born. There was there, as here, no mention or reference to the children, born or unborn. Parol evidence was admitted there of the same general character that was heard in this case, and in answering the argument made against the admissibility of such evidence this court, on page 564, said: “But we do not think the evidence objected to had any tendency whatever to vary or change the intent of the testator as declared in the will. As we understand the record, the evidence was not offered for that purpose. The object of the evidence was to place before the court the circumstances attending the execution of the will in support of and in aid of the intention of the testator as declared in the will, and the court, in the exercise of its discretion, had the right to hear such evidence. In the discussion of this subject it is said in Schouler on Wills (sec. 579) : ‘But to aid the context of the instrument by extrinsic proof of the circumstances and situation of the testator when it was executed is constantly permitted at the court’s discretion, and this constitutes a proper,—indeed, often an indispensable,—matter of inquiry when construing a will, for whatever a will may set forth on its face, its application is to persons and things external, and hence is admitted evidence, outside the instrument, of facts and circumstances which have any tendency to- give effect and operation to the terms of the will, such as the names, descriptions and designation of beneficiaries named in the will; the 'relation they occupied to the testator; whether the testator was married or single, and who were his family; what was the state of his property when he made his will and when he died, and other like collateral circumstances. Such evidence, being explanatory and incidental, is admitted, not for the purpose of introducing new words of' a new intention into the will, but so as to give an intelligent construction to the words actually used, consistent with the real state of the testator’s family and property,—in short, so as to enable the court to stand in the testator’s place, and read it in the light of those surroundings under which it was written and executed,”— citing Little v. Giles, 25 Neb. 313, and Doe v. Hiscock, 5 M. & N. 363.
In commenting on the force of the fact that the testator had two children living at the time the will was made which were in no way referred to or mentioned in the will, this court, in the same case above cited, on page 567, used the following language: “At the time the will was executed by the testator he had two children then living,—one four and the other two years old. These children were excluded from taking any portion of the testator’s estate by the will. Is it reasonable to believe that the testator intended to exclude these two infants and not at the same time exclude another child to be born within the next two months after the will was executed ? It seems plain, if the testator had intended to make any distinction between his children then born or unborn, he would have inserted a provision in his will manifesting that intention. In order to disinherit appellant the testator was not required to state the fact in express terms in the will. It is enough that the intention appears from the will, upon consideration of all of its provisions.”
The same reasoning applies with special force to the case at bar. Let us look at the circumstances. The testator had one child,—a bright, intelligent, lovable son, three years old, bearing his father’s name, Creighton, and the testimony shows that the testator was devotedly attached to this boy. The testator had retired from business and spent a large part of his time in the company of his son, Creighton. He owned an estate of heavily encumbered and unproductive lands, which required business ability and expedition in handling" the same. The testator had a wife in whose business judgment and ability he had unlimited confidence, and he no doubt believed that her maternal devotion to her children could be relied upon to provide for them out of what might be saved of the estate better than the testator could in the embarrassed and entangled condition of affairs that surrounded the property at the time the will was executed. Surrounded by these circumstances the testator made his will, employing- for that purpose sixteen words: “I give, devise and bequeath all my property, wherever situated, to my wife, Jane Creighton Peet.” What did the testator mean by giving all his property to- his wife? Did he mean that if afterwards a child should be born such child should have one-fourth of the property and the wife three-fourths, and the other child, Creighton, none? In our opinion he meant that his wife should have all of the property, to the exclusion of his children then born or to be thereafter born, and we are much influenced in reaching this conclusion by the circumstances surrounding the testator at the time the will was made, parol evidence of which, under the authority of the Hcuwhe case, is clearly admissible in this State.
We freely concede that other courts in other jurisdictions have reached an opposite conclusion with respect to the admissibility of parol evidence under statutes bearing more or less similarity to ours. Perhaps one of the strongest presentations of the opposing view is an opinion of the United States Circuit Court for the District of Nebraska, rendered by Mr. Justice Brewer, in the case of Chicago, Burlington and Quincy Railroad Co. v. Wasserman, 22 Fed. Rep. 872. In that case the learned judge felt himself compelled to decide against what he frankly confesses was the- real intention of the testator, because, under his view, parol evidence could not aid the difficulty. A quotation from that case is here made merely for the purpose of showing that the rule there applied defeated the intention of the testator: “In this case the primary question I am reluctantly compelled to decide in favor of the complainant, Wasserman. I say reluctantly, for when a man, on the eve of death, having a child five years of age and living with a wife to be delivered of a second child within twenty days, makes a will giving all his property to his wife, I think the common voice will say that he intended no wrong to either the born or unborn child, but trusted to his wife—their mother—ff> do justice to each, and believed that she, with the property in her hands, could handle it more advantageously for herself and children than if interests in it were distributed. As a question of fact, independent of the statute, I have no doubt that Mr. Wasserman had no feeling either against the born or unborn child, but, having implicit faith in his wife, meant that she should take the entire property, and believed that out of that property and her future labors she would take care of his children. But the legal difficulty is this: The statute says it must be apparent from the will that the testator intended that the unborn child should not be specially provided for. How can any intention as to this child be gathered from the will alone ? It simply gives everything to the wife; is silent as to children. If I could look beyond the will, my conclusion would be instant and unhesitating.”
Whatever weight this authority might have if this were a case of first impression with this court, it can have none now in the face of our own decision in the Hawhe case, where the same authority was pressed upon our attention and this court expressly refused to follow it. This court, on page 569 of the Hawhe case, speaking of the Wasserman case, said: “While the facts in that case are quite similar .to the facts in this case and the opinion delivered by the eminent jurist seems to sustain appellant’s vie\y of the law, we are not inclined to follow it.” In the Wasserman case are collected a number of decisions of other courts upon which appellant relies, but if the Wasserman case be rejected as not good law in this jurisdiction, it would seem scarcely necessary to examine in detail the cases upon which it rests.
The appellant relies with some apparent confidence upon Lurie v. Radnitzer, 166 Ill. 609, as laying down a different rule from that announced in the Hawhe case. We do not regard these cases as in conflict. Indeed, the Hawhe case is cited twice in the Radnitzer case and relied on as an authority in support of the conclusion reached in the latter case. The cases are clearly distinguishable, and there is nothing said in the later case that in any way impairs the authority of the former.
There is nothing in the New York statute introduced in evidence by appellant, which, considered as a fact in connection with the other surrounding circumstances, will overcome the proofs properly before the court.
It results from what has been said that appellant’s second proposition cannot be sustained.
The decree of the court below is right, and the same is affirmed. n ~ , Decree afhrmed.