| Ill. | Oct 23, 1907
delivered the opinion of the court:
The only question involved in this case that requires discussion relates to the construction to be given to the second clause of the testatrix’s will. That clause, omitting formal and descriptive parts, reads as follows: “I give, devise and bequeath to my daughter, Anna M. Ryan, all my real estate, then to her heirs. * * * If my daughter should die leaving no. heirs of her own, then I wish the real estate to be sold and the money divided in two equal parts, and one part to go to Minnie E. Ryan and Mary E. Ryan, daughters of my former husband, and the other half to go to my brothers, Frank and John Curtis. Both sets of heirs shall have the right to buy the others out.”
The word “heirs” in the sentence, “I give, devise and bequeath to my daughter, Anna M. Ryan, all my real estate, then to her heirs,” is used in its legal, technical sense, and means all those persons who would succeed to the estate in case of intestacy. The effect of this clause is to vest a fee simple title in the devisee, Anna M. Ryan. By the subsequent clause, “if my daughter should die leaving no heirs of her own,” etc., the fee previously devised is made to depend on a condition which may or may not happen. If she dies leaving a child or children, which is the evident meaning of the words “heirs of her own,” the fee devised to her passes to such child or children. If, however, she dies leaving no child or children, then the devise over of the remainder takes effect and the fee to the first devisee comes to an end and-is determined. The estate of Anna M. Ryan was therefore a base or determinable fee. Such an estate is distinguishable from a life estate in that it might last forever in case the first taker dies leaving a child or children, but it is liable to be terminated by her death without leaving such child or children. Anna M. Ryan having died without leaving a child or children, the devise over took effect, and plaintiffs in error, who claim as her collateral heirs, have no interest in the estate in question.
Plaintiffs in error do not seriously contend that the word “heirs” in the second clause of this will should not receive its technical meaning, but conceding, as they seem to- do, that such is the proper construction of that word as employed by the testatrix in the second clause of her will above set out, it is insisted that the clause, “if my daughter should die leaving no heirs of her own, then I wish the real estate to be sold,” etc., refers to the death of the primary devisee prior to the death of the testatrix, hence the gift over was substitutionary and dependent upon the death of the primary devisee in the lifetime of the testatrix and was designed to prevent a lapse, and that since Anna M. Ryan survived the testatrix, her estate became a fee simple and descended to her heirs. This court has had occasion construe similar clauses in wills often, and the rule may be regarded as well established that when the death of the first taker is coupled with circumstances which may or may not take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and general meaning of the words, upon the death, under the circumstances indicated, at any time, whether before or after the death of the testator. (Summers v. Smith, 127 Ill. 645" date_filed="1889-04-05" court="Ill." case_name="Summers v. Smith">127 Ill. 645; Smith v. Kimbell, 153 id. 368; Bradsby v. Wallace, 202 id. 239; Fifer v. Allen, 228 id. 507.) In the case at bar it is clear that the testatrix contemplated that her daughter would survive her. She is made executrix of the will and certain duties are enjoined upon her in respect to furnishing the mother of the testatrix with a home, etc., clearly indicating that the death of the devisee meant a death after the death of the testatrix. Anna M. Ryan died after the death of the testatrix, leaving no children. Her estate in the lands devised thereby terminated and the devise over took effect. There was therefore no error in overruling the demurrer of Ahlfield and Walter to the bill of defendants in error.
The decree of the circuit court of Edwards county should be and is accordingly affirmed. ^ rr , & J Decree amrrned.