74 N.E.2d 808 | Ill. | 1947
This is an appeal from a decree entered in the circuit court of Edgar county. It determines the ownership of *507 the title to certain lands located in that county. On and prior to January 25, 1921, Philip Bibo owned the premises involved. On that date, he and his wife executed a statutory form of warranty deed conveying a part of the tracts to Max S. Bibo. Eight days later they executed a second deed, identical with the first, except as to date and description, conveying the remainder of the tracts to the same grantee. The granting clauses were as follows: "Convey and warrant to Max S. Bibo and his bodily heirs of Paris, in the county of Edgar and state of Illinois, the following described real estate," etc. The deeds contained no habendum.
Philip S. Bibo died testate on June 3, 1928. His wife, Elizabeth Bibo, survived and was the sole beneficiary of the will. Four sons, one of whom was the grantee, Max S. Bibo, and one daughter were his only heirs-at-law. At the time the deeds were executed Max S. Bibo was married to Myrtle F. Bibo. He died testate July 23, 1944, without having had any bodily heirs. Myrtle F. Bibo survived and was the sole beneficiary in the will of her husband.
Elizabeth Bibo and the heirs-at-law of Philip Bibo started this action against Myrtle F. Bibo, in her individual capacity and as executrix of the will of Max S. Bibo, to have the title to the premises decreed to be in Elizabeth Bibo. Such action was founded on the theory that the deeds granted an estate tail as at common law, which, by operation of section 6 of the Conveyance Act, (Ill. Rev. Stat. 1945, chap. 30, par. 5,) was converted into a life estate in Max S. Bibo, with remainder in fee to his bodily heirs. Since Max S. Bibo had no bodily heirs, it is contended the remainder passed under the will of Philip Bibo to the sole beneficiary, Elizabeth Bibo.
Myrtle F. Bibo asserted her claims to the property by answer and counterclaim. She contended the conveyance to Max S. Bibo and his bodily heirs, of Paris, in the county of Edgar, State of Illinois, was the conveyance of a present *508 estate and since there was no one in existence to take as bodily heirs, the conveyance was void as to them, thereby resulting in Max S. Bibo taking the full title in fee. If such contention finds support in the law, then Myrtle F. Bibo would, as the sole beneficiary of the will of Max S. Bibo, take the fee-simple title to all the lands. An alternative to the foregoing is urged on behalf of Myrtle F. Bibo. It is said that if it should be determined that the deeds granted estates tail as at common law, which section 6 of the Conveyance Act converted into life estates in Max S. Bibo with remainder in his bodily heirs, then upon failure of bodily heirs to Max S. Bibo, the contingent remainder became vested in those persons who were the heirs-at-law of Philip Bibo at the time of his death. Max S. Bibo being one of five of such heirs, it is contended that Myrtle F. Bibo became the owner of such one-fifth as the sole beneficiary of the will of her husband.
The chancellor sustained the construction urged by Elizabeth Bibo and her coplaintiffs, and entered a decree vesting the full fee-simple title in her. Myrtle F. Bibo has appealed from such decree.
The question presented is one of construction. The primary rule in construing a deed is to ascertain the intent of the grantor and to give effect to such intent if not in conflict with some rule of law. If Philip Bibo had intended to grant Max S. Bibo the full title, then by the use of the statutory form of warranty deed, his grant would have been to Max S. Bibo, or if the grant had been to Max S. Bibo and his heirs generally, then by application of rules of law the result would have been the same and the grantee would have taken the full title. But the grant runs to Max S. Bibo and his bodily heirs. The primary question is as to whether the words "his bodily heirs" are words of purchase, that is, describing the persons who were to take as grantees with Max S. Bibo, or are words of limitation, that is, do they limit the estate of the *509 first taker and create an estate tail as at common law? If the words are to be construed as words of limitation, then at common law an estate was created in the bodily heirs of Max S. Bibo which would have continued in direct line so long as his posterity endured, and in regular order and course of descent and until there was an extinction of such issue. If the words "and his bodily heirs" are words of purchase, then the grant as to such class is a nullity for there were no bodily heirs of Max S. Bibo in existence when the conveyances were made. It is fundamental that such requirement is essential to the passing of title of a present estate. Appellant's claim that she has the whole title is founded on such theory.
If a grantor employs words which have a definite legal significance in the law of real property, then it is presumed that the grantor intended that such technical words should be given their special significance. The word "heirs" is a technical word, clothed in the law of real property with a special significance. At common law, to create an estate of inheritance it was necessary that the grant or donation contain the word "heirs." If such word was omitted and the grant was to A, then A took only a life estate. (Sauls v. Cox,
There is no doubt that at common law the meaning that would have been attached to the words "Max S. Bibo and his bodily heirs" was that an estate tail was created. The words "and his bodily heirs" were at common law the simplest way of creating estates tail. In many cases where the words "the heirs of his body" or "his bodily heirs" have been used, it has been held that an estate tail was created. *510 Sauls v. Cox,
In support of the contention that the words "his bodily heirs" are descriptive of the persons to take, appellant contends that this court has adopted the doctrine that such words, standing alone, are prima facie words of purchase. If such were the rule, the grant to Max S. Bibo and his bodily heirs would be presumed to have been used as descriptive of the persons to take. Such contention does not find support in the law. It is fundamental that courts favor constructions which vest estates at the earliest moment and there are statements in the books that estates tail are not favored in the law. The legislative policy of this State, as evidenced by section 6, was to abolish estates tail as they were known at the common law, but it will be observed that the application of section 6 depends on whether an estate has been created which would, at common law, have been an estate tail. To say that courts disfavor a construction which finds an estate tail has been created is, in effect, to say that courts are averse to finding the estate upon which section 6 depends for its application.
Appellant cites Hauser v. Power,
In Bunn v. Butler,
In Griswold v. Hicks,
Appellant contends that this case is controlled by Duffield v.Duffield,
Appellant refers to sections 8, 9 and 13 of the Conveyance Act and argues that said sections indicate a legislative policy which should be given consideration in the construction of deeds involving estates tail. Sections 7 and 8 prescribe the covenants imposed upon a grantor when he uses the particular words of the statute. In no sense do they create estates or limit estates conveyed. Section 13 is that, "Every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law."
In Lehndorf v. Cope,
Appellant contends that the words "his bodily heirs of the city of Paris" are to be construed together and that by such construction there is a geographical limitation upon who are the bodily heirs that may take. The words "city of Paris, county of Edgar and state of Illinois" refer to the residence of Max S. Bibo, and are not words limiting the class that would be included in the words "his bodily heirs."
The deeds conveyed to Max S. Bibo estates in fee tail, which by the operation of section 6 of the Conveyance Act were converted into life estates with remainders to the heirs of his body. There being no heirs of the body of Max S. Bibo in existence at the time of the making of the deeds, the vesting of the remainders was contingent upon there being bodily heirs of such grantee. In Kales on Estates and Future Interests, (2d ed.) sec. 24, it is said: "Whenever one seized in fee created out of his fee a lesser estate of freehold — as an estate tail, or a life estate — after the expiration of the less estate, the owner in fee would have the fee which he had not wholly parted with. The less estate is called the particular estate, and what is left in the owner in fee is called, during the continuance of the particular estate, the reversion." Thus a reversion arises by operation of law, and Philip Bibo held such reversionary interest to the time of his death. If he had died intestate and without having disposed of the same by *514
deed, such interest would, upon his death, have reverted to his heirs-at-law. But he was the first reversioner in order of time and could dispose of it by deed or will. (Carter v. Lewis,
A question presented in the trial court involved the matter of rents, issues and profits from the land, but it appears that a part of that controversy was settled by stipulation. In view of such stipulation and the conclusion reached as to the ownership of the land, the questions as to rent need not be further considered.
The appellant further argues that Elizabeth Bibo, by joining with the heirs-at-law of Philip Bibo as parties plaintiff and praying in the alternative that they be held to be the owners of the fee title to the properties, placed a practical construction on the will of Philip Bibo as not devising to her the properties and that she would be bound by that construction. The doctrine of practical construction applies only to ambiguous wills, and there is no ambiguity in the will of Philip Bibo stating: "I devise and bequeath all my estate and property of whatsoever kind and nature, both real and personal, to which I am entitled or which I may have the power to dispose of at my death to my wife, Elizabeth Bibo, absolutely." The trial court correctly held that these reversions passed under the will of Philip Bibo to his wife and devisee, Elizabeth Bibo, and not as intestate property.
The decree of the circuit court is correct and is affirmed.
Decree affirmed. *515