85 N.E.2d 748 | Ill. | 1949
A freehold being involved, appellants, Carmaleen Barker and Allie C. Smith, appeal directly to this court to reverse a decree of the circuit court of Greene County in favor of the appellee Ethelyn Cuddy.
Partition was sought in the Greene County circuit court of several tracts of real estate located in the counties of Greene, Morgan and Scott, respectively. The complaint alleged that Carmaleen Barker, an only child of Buell L. Cuddy, deceased, a son of Ada B. and Martin T. Cuddy, both deceased, and Allie C. Smith, their daughter, each owned an undivided one-third interest in said lands, and that Aletha Walker, Hazel Henry and Glenna Gordon, children of Fulton Cuddy, deceased, also a son of Ada B. and Martin T. Cuddy, each owned an undivided one-ninth interest therein.
Ada B. Cuddy was the widow of Martin T. Cuddy, deceased, and the daughter of Fletcher F. Clark, deceased. Martin T. Cuddy and Ada B. Cuddy, his wife, had three children, viz.: Fulton Cuddy and Buell Lester Cuddy, sons, and Allie C. Smith (nee Cuddy) a daughter. Carmaleen Barker is the daughter by a former marriage, and Ethelyn Cuddy is the widow, of Buell L. Cuddy who departed this life intestate on May 1, 1944, prior to the death of his mother, Ada B. Cuddy, who died January 10, 1947, and subsequent to the death of his father, Martin T. Cuddy, who died in 1938. No administration was had on the estate of Buell L. Cuddy, deceased. More than ten months had elapsed between his death and the filing of this suit, and *304 appellee, his widow, did not at any time elect to take dower by filing a written instrument as provided by statute.
There is no question concerning the interests and relationships as set out in the complaint, except that Ethelyn Cuddy claims she is entitled to a one-third interest in the portion of the premises owned by Buell L. Cuddy, her husband, at the time of his death, which would give her a one-ninth interest in the whole. She was not made a party to the suit but was permitted to intervene and to file a counterclaim setting up her claim as aforesaid, after the premises had been sold and a decree of distribution entered. The original decree had found the interests of the parties as alleged in the complaint, but upon the intervention of Ethelyn Cuddy the decree was changed finding that her husband had a vested remainder in the premises and that she was the owner of an undivided one-ninth of the whole or an undivided one-third of the interest owned by her husband at the time of his death.
The widow of Fulton Cuddy made a similar claim to that of Ethelyn Cuddy but later withdrew it because she had accepted the provisions made for her under the will of her deceased husband and had made settlement with his children.
January 31, 1912, Fletcher F. Clark, a widower, father of Ada B. Cuddy, conveyed to her an undivided one-half of the Scott County real estate for and during the period of her natural life and at her death to the heirs of her body, reserving in substance a life estate in himself. The other undivided half of these premises was owned by Martin T. Cuddy, husband of said Ada B. Cuddy. January 29, 1914, said Fletcher F. Clark and his then wife conveyed to said Ada B. Cuddy the real estate located in Morgan County for and during the period of her natural life and at her death to the heirs of her body, reserving in substance a life estate in himself. After the grantee's name, the description of the premises, the provisions designating the *305 life interest of the grantee with the remainder to the heirs of her body, the provision reserving the life estate in the grantor, and the provision releasing and waiving all rights under and by virtue of the homestead exemption laws, each deed contained in substance the following:
"The object and intention of this deed is to convey to the grantee herein, Ada B. Cuddy, a life estate in the above described lands, the remainder to the heirs of her body in fee simple."
By the will of Martin T. Cuddy there was devised to his widow, said Ada B. Cuddy, for life, his undivided one-half interest in the lands in Scott County by the following provision in his will:
"3rd. I also give, devise and bequeath to my beloved wife all the real estate of which I may die seized or to which I may be entitled either in possession, reversion, remainder or otherwise to have and to hold for and during her natural life and at the time of her death said real estate shall descend to my three children, Fulton Cuddy, Buell Lester Cuddy and Alice Cecilla Smith, share and share alike as their absolute property for ever and in case of the death of either of said children prior to my decease I hereby direct that their share shall descend to their bodily heirs."
The issues are all raised by the pleadings which it will not be necessary to recite in detail. Appellants contend that under the foregoing instruments Buell L. Cuddy had but a contingent remainder in all of the premises and by reason of his death prior to that of his mother, Ada B. Cuddy, he never became seized of an interest in any of the real estate in question and therefore his widow, Ethelyn Cuddy, had no right of dower in any of the premises. They further say she could not take under the statute on descent because it applies only in cases where there is dower that can be waived.
On the other hand Ethelyn Cuddy contends that her husband, Buell Lester Cuddy, at the time of his death, owned a vested remainder or one-third interest in all of the premises, subject to the life estate of his mother, Ada B. Cuddy, and that one third of his interest descended to *306 her by virtue of section 11 of the new Probate Act which became effective January 1, 1940. (Ill. Rev. Stat. 1947, chap. 3, par. 162.) She says that the deeds, by the common law, would have created a fee tail in the premises and accordingly section 6 of the Conveyances Act (Ill. Rev. Stat. 1947, chap. 30, par. 5,) would operate, and under it Ada B. Cuddy became seized for her natural life only and the remainder passed in fee simple absolute to Buell L. Cuddy and the other living heirs of the body of Ada B. Cuddy, subject to being divested pro tanto should other children be born to her thereafter. Appellants claim this statute does not apply here because of the aforesaid words appearing in each deed after the waiver of the homestead exemption laws. They say those words do not constitute an habendum clause but are explanatory words giving the grantor's construction or meaning of the words previously used in the instrument.
Whether or not those words constitute technically anhabendum clause, they follow a very definite granting portion of the deed, and, if inconsistent therewith, should not be permitted to destroy it. (Coogan v. Jones,
We believe the two deeds would have created an estate in fee tail at common law and therefore section 6 of the Conveyances Act applies. The operation of that section created in Ada B. Cuddy an estate in the deeded premises for her natural life only, with remainder in fee simple absolute to Buell L. Cuddy and his brother and sister. Moore v. Reddel,
We now consider the will of Martin T. Cuddy. Buell L. Cuddy survived the testator but died before the life tenant. After giving a life estate in the premises to his wife, the third clause of the will says: "and at the time of her death said real estate shall descend to my three children, Fulton Cuddy, Buell Lester Cuddy and Alice Cecilla Smith, share and share alike as their absolute property forever," and then provides that in case either shall die before the testator his share shall descend to his bodily heirs. The question is as to when the testator intended the remainders to vest in his children — at the time of his death or at the time of his wife's death. We held inCrowley v. Engelke,
Whenever the person who is to succeed to the estate in remainder is in being and is ascertained, and the event which by express limitation will terminate the preceding estate is certain to happen, the remainder is vested. (Hoblit v. Howser,
The law favors the vesting of estates generally, and so remainders are held to be vested rather than contingent, unless the intent of the testator is made to appear to the contrary. (33 American Jurisprudence, page 558, section 102; Dustin v.Brown,
There remains to be decided what interest, if any, Ethelyn Cuddy has in the premises as surviving widow of Buell L. Cuddy. Appellants take the position that she has no interest whatever because her husband was not seized of an interest in the premises during his lifetime, that is, the right to possession and enjoyment thereof. They say that there can be no dower rights in a widow in real estate unless her husband was seized of an estate of inheritance therein at some time during the marriage as provided in section 18 of the Probate Act. (Ill. Rev. Stat. 1947, chap. 3, par. 170.) They further contend that unless there was a right to dower in the widow she does not take by descent under section 11 of the Probate Act, (Ill. Rev. Stat. 1947, chap. 3, par. 162,) because there must first be a right to dower which the spouse does not perfect under the provisions of the statute.
In Dial v. Dial,
In Bundy v. Solon,
In Geiger v. Geer,
Buell L. Cuddy left a widow, the appellee Ethelyn Cuddy, and one child, Carmaleen Barker. He died intestate. The statute on descent provides what shall become of his estate in that situation. Where there is a right to dower in a given piece of real estate the one entitled thereto, if he perfects the same, cannot, of course, have the interest in fee also. But if he has no right to dower therein and consequently can perfect none, it does not follow that he has no interest under the statute.
Appellants have cited a number of cases holding in effect that by the provisions of sections 11, 18 and 19 of the Probate Act a widow is given, in the first instance, dower in the lands of her deceased husband, the fee in which descends to his children encumbered with the widow's right to either effect dower or permit dower to be barred; and her election to take dower or to permit it to become barred is a condition precedent to the vesting of the fee to one third of the land in her. The main case relied upon by them for that principle of law is Bruce v.McCormick,
We do not believe the legislature intended that one might die intestate owning an interest in real estate, even though not in his possession and enjoyment, and that his widow should have no part thereof. If the surviving widow would not in such case take under section 11 of the Probate Act, to whom would the portion of the property therein provided for her go? If appellants' view that there is no dower right in the widow and therefore no right in her to take under the statute on descent be adopted, then there is no statutory provision disposing of the interest provided for her by the statute. The legislature contemplated and intended no such situation.
In appellants' amended answer to Ethelyn Cuddy's counterclaim, after reciting that the interest of Buell L. Cuddy in the premises constituted a contingent remainder during the lifetime of said Ada B. Cuddy, the following words are used: "and by their own acts and conduct, was so construed by the said Allie Smith, Buell Cuddy and Fulton Cuddy during their lifetimes and by the said Ethelyn Cuddy prior to the institution of these proceedings." Complaint is made of the court's action in striking the quoted words from the amended answer. There are no specific acts and conduct averred. The averment is clearly a conclusion of the pleader and there was no error in striking it.
We are satisfied that the decree of the circuit court permitting Ethelyn Cuddy to share in her husband's interest in the real estate in question is right, and it will be affirmed.
Decree affirmed. *312