dissenting:
The deceased, Van Degrift, executed, in his lifetime, an inter vivos trust and also a last will and testament with a codicil thereto. I do not question the part of the court’s decision relating to the trust agreement and its various amendments. My dissent relates to the part of the decision which permits the will and codicil of the deceased to be amended by declaring the trust agreement as amended by the court is an instrument or document to which the deceased referred in his will executed September 7, 1945. The trustee named in the trust agreement and the executor of the will is the same banking institution which filed a complaint to enforce a certain amendment to the trust claimed to have been executed February 19, 1936, and as a result the court entered a decree by which the Art Institute of Chicago became the principal beneficiary of both the trust and the will.
The original will was executed August 12, 1943, and, among other dispositions, provided his residuary estate should be given to the bank trustee to be disposed of in accordance with his trust agreement of October 16, 1930, together with the amendment of August 12, 1943. Later, on September 7, 1945, the testator made a codicil to this will and cancelled the provision in the original will relating to the trust and made a new provision giving the residuary estate to the said trustee to be disposed of in accordance with the trust created October 16, 1930, and as amended on February 6, 1931, November 11, 1931, February 27, 1934, August 12, 1943, June 25, 1945, and September 7, 1945. It will be noticed he did not adopt as a part of his will by reference the amendment of February 19, 1936. Hence, if we were to consider the will alone, the will and codicil distributed the residuary estate in accordance with a referred-to document which did not include the provision of February 19, 1936, in favor of the Art Institute. When the court permitted the trust agreement to be amended so as to include therein the amendment of February 19, 1936, in favor of the Art Institute, which was permissible in a court of equity under certain conditions, the trial court evidently concluded that the same correction could carry into the last will of the deceased, and this court has affirmed that decision. There are two fatal objections to this course of action.
In the first place, there is no certainty that the testator intended that his will should dispose of the residuary estate in the manner specified in the amendment of the trust dated February 19, 1936, even if it had been in the trust as it was amended on September 7, 1945. In fact it was not in the trust at the time of the testator’s death and was only placed there by construction. It is entirely probable that the testator intended to do exactly what he did do, since, at the time of making his last will and codicil, he did not incorporate by reference all of the amendments to the trust as it then existed. Merely because the trial court believed the testator intended the Art Institute to be the beneficiary of the trust estate does not prove that he intended it to be the beneficiary of the residuary estate.
The other insuperable obstacle to the thus amended will is that the law requires it to be executed by the testator in the presence of at least two attesting witnesses and acknowledged as his last will and testament, in their presence. It is well understood and in fact conceded by the appellees that a mistake in a will cannot be cured by parol evidence, nor any material change made from its terms except in the manner provided for the legal execution of a will. Appellees do not. dispute this principle but contend that amending the trust agreement is not amending the will. This is legal sophistry. The trust agreement and the will are entirely separate documents. The trust agreement is only material to the construction of the will as being part thereof by reference and then only to the parts thereof explicitly referred to. There is nothing to show that the testator would have specified that the amendment of the trust made February 19, 1936, should be written into his will even if it had been then in the trust agreement; nor is there any proof that the will as thus amended was made in the manner required by statute. It is a new interpretation of the law relating to wills that you may not change a will by codicil except in accordance with the statute governing wills but you may change the document made a part' of the will by reference without this formality, and in this way change a will and escape the fatal result of attempting to change a will by parol evidence. I believe the result of this case as to the residuary estate disposed of by the will is clearly wrong.
Simpson, C.J., and Daily, J., concur in the above dissenting opinion.