294 Ill. 424 | Ill. | 1920
delivered the opinion of the court:
The appellants filed in the circuit court of Sangamon county their bill in equity to quiet their title to eighty acres of land and for partition. The bill alleged that Bertha E. Beaty acquired title to the land by devise from her grandfather, Randolph M. Calliss; that she died intestate, leaving the appellants her heirs-at-law, and that the appellee, James W. Calliss, claimed an interest in the land by virtue of an executory devise but his claim was unfounded. The bill was answered and the issue referred to the master in chancery, who took the evidence and reported the same with his conclusion that the premises were owned in fee simple by the appellee, subject to the dower of the appellant Clarence J. Beaty, surviving husband of Bertha E. Beaty. The cause was heard on exceptions to the report, which were overruled and a decree was entered finding James W. Calliss to be the owner in fee simple, that Clarence J. Beaty was entitled to dower in the land and that none of the complainants had any other right, title or interest therein. The decree provided for an assignment of dower, and that in such assignment Beaty should have the dwelling house, if he desired it.
Randolph M. Calliss was the owner of the land and he died on December 13, 1897, leaving a last will and testament, made on March 9, 1897. The third clause of the will, which devised the land, was as follows:
“Third—I give, devise and bequeath to my said wife, Elizabeth A. Calliss, to have and to hold for her use and benefit during her natural life, my farm, described as follows: The south half of the southeast quarter of section thirty-one (31), township thirteen (13), north, range five (5), west of the third principal meridian, situated in the county of Sangamon and State of Illinois, and direct that should use so much of the proceeds therefrom as may be necessary to keep the taxes thereon paid and the buildings and improvements thereon in good repair. And at the death of my said wife the said farm shall descend to my grand-daughter, Bertha Eva Williamson, but it is my will that my said grand-daughter shall not assume control of said premises until she attains the age of twenty-one years, and if my said wife shall die before my said grand-daughter shall reach such age of twenty-one years, I direct that a trustee be appointed to control and manage such farm for the benefit of my said grand-daughter. If, however, my said grand-daughter should die before my said wife or subsequent thereto, leaving her surviving no child or descendants of such, then I direct that my said farm shall descend to my brother, James W. Calliss, if he should be then living; if not, I direct that the said lands be sold at public or private sale, as may seem most advantageous, and the proceeds thereof divided among the children of my said brother, James W. Calliss, then living, in equal shares.”
When the will took effect Bertha E. Williamson was four years of age, and at the death of Elizabeth A. Calliss, on April 1, 1907, when the life estate came to an end. she was fourteen years old. From that time until she was twenty-one years of age she was entitled to the income of the land, but the management and control were by the will placed in a trustee. At the termination of the trust she assumed control and possession of the land and was married to Clarence J. Beaty on November 25, 1918. She died intestate on September 27, 1919, leaving no issue surviving her, and leaving the appellants, her husband, Clarence J. Beaty, and her father, brothers and sisters, as her heirs-at-law.
The principal question is whether the executory interest limited upon the death of Bertha E. Beaty leaving no surviving child or descendants of such, was intended by the testator to take effect only upon the happening of the contingency during.the trust prior to her attaining the age of twenty-one years, when she was to come into possession and control of the premises, or upon her death at any time under the conditions stated in the will. She was four years of age when the will took effect and the life tenant was fifty-nine years of age, so that it was quite natural that the testator should have contemplated, as he in fact did, that there might be a period after the termination of the life estate during which the devisee would be under twenty-one years of age, and he provided that if there should be such a period a trust should be created for the management and control of the property. There was such an intervening period, and the argument for the appellants is that when the devisee came into possession and control of the property she was invested with the fee simple title.
While the purpose of construction is to ascertain the intention of the testator, it has been settled by judicial construction that certain provisions manifest such intention. One such case is where there is a devise of a future interest to take effect in possession upon the termination of an intervening particular estate, and it is held that the intention in such case is that the gift over shall take effect if the contingency happens at any time during the existence of the particular estate, unless there is something in the will showing that the testator referred to a later date. (Lachenmyer v. Gehlbach, 266 Ill. 11; Spencer v. Spencer, 268 id. 332; Sheley v. Sheley, 272 id. 95; Abrahams v. Sanders, 274 id. 452; Fulwiler v. McClun, 285 id. 174; Morris v. Phillips, 287 id. 633; 40 Cyc. 1505; 2 Jarman on Wills, 1568; Underhill on Wills, sec. 346.) In Welch v. Crowe, 278 Ill. 244, there was a period during which a trust, was created, and in this case provision was made for an intermediate period for withholding enjoyment, possession and control from the devisee, and at twenty-one years of age she was to be invested with all the rights of the owner of the fee.
On grounds of public policy it is the settled rule of this court that where construction is doubtful a construction will be adopted which will give an estate of inheritance to the first devisee. (Kohtz v. Eldred, 208 Ill. 60; Mills v. Teel, 245 id. 483; Williamson v. Carnes, 284 id. 521; Sheridan v. Blume, 290 id. 508.) In conformity to that rule the contingency upon which the executory devise was to take effect might well be referred to the period of the life estate and the interval between the termination of that estate and the time when the devisee was to come into full enjoyment of the devise, if it were not that the will itself indicates a contrary intention. The testator specifically provided for the contingency of death before that of the life tenant or subsequent thereto and upon the devisee leaving her surviving no child or descendants of such. It is true that the rule has been consistently applied.in the above cases where the' word “issue” was employed, and in a legal sense that word means descendants and includes the whole line of lineal descendants, (Arnold v. Alden, 173 Ill. 229; 23 Cyc. 359;) but in a popular sense it may mean child or children and may be used in that sense in a will. In view of the policy of the law the word might be held to mean a child, which would not be improbable at twenty-one years. In this case the contingency specifically and definitely mentioned in the will was the death of the devisee (then a child) leaving no child or descendants of such, and by the words of the will must have referred to a later date than the time when she would become twenty-one years of age, as she could not have descendants of a child at that age. This provision was at variance with the policy of the law as well as an intention of the testator which would otherwise be presumed. The conclusion that the executory devise took effect on the death of Bertha E. Beaty at twenty-six years of age without leaving her surviving a child or descendant was correct.
By the decree. Clarence J. Beaty was denied a homestead, which was formerly a mere exemption but is now an estate. (Gray v. Schofield, 175 Ill. 36; Hertz v. Buchmann, 177 id. 553; Roberson v. Tippie, 209 id. 38.) Although an estate, the declared purpose of the Homestead act is to exempt it from attachment, judgment, levy or execution, sale for the payment of the householder’s debts or other purposes, and from the laws of conveyance, descent and devise, except as therein provided. The homestead estate is measured and defined by the value of the interest and title which the householder actually has in the premises, whether a fee or by lease or' otherwise. The estate of homestead ends with the determination of the householder’s estate, whatever it may be, and as the estate of Bertha E. Beaty came to an end at her death the decree as to the homestead was correct.
A cross-error has been assigned on the allowance of dower to Clarence J. Beaty. Bertha E. Beaty having been in her lifetime seized of an estate of inheritance, although it was determinable upon the happening of a specified contingency, her surviving husband was entitled to dower. Aloe v. Lowe, 278 Ill. 233.
The decree provided that in assigning dower Clarence J. Beaty should have the dwelling house, if he so desired. There is a provision of that kind in section 37 of the Dower act, but it is urged that the section applies only to cases where one entitled to dower has a homestead. The section does not authorize the allotment of the dwelling house in the assignment of dower where the homestead right is owned by a third person and not by the surviving husband or wife, (Best v. Jenks, 123 Ill. 447,) but we see no reason why dower may not be assigned including the dwelling house, where there is no homestead right, in case one entitled to dower shall so desire and the commissioners shall be able to make such assignment without injustice to anyone. That question and the question of costs will arise hereafter on the report of the commissioners and in the final decree.
The decree is affirmed.
Decree affirmed.