| Ill. | Jan 19, 1884
delivered the opinion of the Court:
Several questions arise upon this record, and are submitted to the court in this case. It is plain that by this will a limited estate is given to the testator’s daughters, with remainder in fee to his grandchildren.
The first question relates to the extent of the estate given to the two daughters. It is suggested, as the grant to them is of the “full use and enjoyment of possession of all” the lands in question “dv/ring their natural lives, ” that this means so long as they both live, and hence that this estate ended with the life of Mrs. Cheney, and at that time vested in fee in the grandchildren. This, perhaps, is the literal meaning of these words, not considering the context. It is, however, plain that the testator intended the right of possession in his grandchildren should begin at the same moment that the right granted to his daughters should cease, and the words, “to take possession only after the death of my said daughters, ” plainly postpone the enjoyment of the estate by the grandchildren, as his devisees, until after the death of both of his daughters—that is, until the death of the survivor of them. The estate, therefore, granted to the daughters was the full use of the lands from the death of the testator until the death of the last survivor of his daughters, and did not end with the life of Mrs. Cheney.
The next question relates to the nature of the estate granted to the daughters, and especially to whether the right of survivorship was attached thereto. It is claimed by Mrs. Teese that on the death of her sister, Mrs. Cheney, the right to the full enjoyment of the whole of these lands vested in her as survivor, to continue during her natural life. If we had no statute law bearing upon this subject there would be much force in the contention, but the determination of this question is plainly controlled by our statute. On January 13, 1821, a statute was passed in this State saying: “If partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivor or survivors, but descend or pass by devise, * * * and be considered, to every intent and purpose, in the same view as if such deceased joint tenants had been tenants in common.” (Rev. Stat. 1833, p. 474.) On January 31, 1827, it was declared in another statute, that “no estate in joint tenancy in any lands * * * shall be held or claimed under any grant, devise or. conveyance whatsoever, other than to executors or trustees, unless the premises therein mentioned shall expressly be declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors or trustees, unless otherwise expressly declared, as aforesaid, shall be deemed to be in tenancy in common.” (Rev. Stat. 1833, p. 130.) These two provisions have been ever since, and now are, the law in this State. See Gross’ Stat. 1871, pp. 84, 377, and Rev. Stat. 1874, chap. 56, sec. 1, and chap. 24, sec. 5.
It is to us plain that by this clause in the will of their father, made in view of these statutes, Mrs. Cheney and Mrs. Teese, at the death of their father, became possessed, as tenants in common, of an estate in these lands, to extend until the death of the survivor of them, each taking an undivided half of that estate. There are no express words in the will granting this estate making them joint tenants, nor any words expressly indicating that the estate of the one who dies first shall accrue to the survivor. Each daughter, as we understand, took an estate of the same amount and of the same duration. Such estate, as to each, was simply an estate for her own life, if she should survive her sister, but an estate for the life of her sister, if her sister should survive her. Partition was afterwards made of the lands between them. Even had no partition been made, under our statute in force when this will was made and when it took effect, the part of the tenant who died first could not accrue to the survivor. At the death of Mrs. Cheney her estate in the lands set off to her, not being terminated, was that of a devisable and descendible freehold, and passed to her heirs or devisees. It follows, that Mrs. Teese, under this will of her father, has no right or interest whatever in or to the possession and use of the lands set off in partition to Mrs. Cheney, but the same passed, by the will of Mrs. Cheney, to her devisees,—her husband and her children her surviving,—subject, of course, to the'five years’ use by her husband, which he has already enjoyed.
It is suggested that the words of the will of the testator, D’Arcy, allowing the grandchildren to take possession only after the death of both his daughters, repels the conclusion that the children of Mrs. Cheney (who are grandchildren) should enjoy the use of any of this property before the death of both of the daughters. In the view we take of this case they do not take this right of possession and nse as devisees of this testator, their grandfather.. By the grant to them in the will they take only a share of the estate in remainder. This they took by purchase. Their mother took by purchase, under the same will, a right to the use of half the property from the death of the testator until the death of the survivor of the daughters, and at her death her children then living, being part of her heirs, had she died' intestate, would have taken their share of this undetermined estate of their mother by inheritance. Had she chosen, in life, to have sold her interest in this estate, her grantee could have held the same after her death. There is nothing in the will to prevent any grantee, devisee or heir of Mrs. Cheney acquiring her estate, and the mere fact that such grantees, devisees or heirs are also grandchildren of the testator does not exclude them from the benefit of such acquisition. They take this interest not as grandchildren, nor as heirs or devisees of their grandfather, but as devisees of their mother. There is nothing in the deed of partition affecting this result. It is true it recites that the daughters, as tenants in common, have a life estate, with the right to the survivor of them to hold all of said lands for the term of her natural life, after the death of the other. This merely shows that they misapprehended their relative rights and interests, but we do not see that the action of either was affected or at all influenced by such misapprehension. They did make partition, and thus severed their possessions, and the right of survivorship, even had it ever existed, was at an end. In carrying out this partition it is true the deed of Mrs. Teese to the lands set off to Mrs. Cheney conveys the lands for the life of the grantee only, when to have covered the whole ground it ought to have been until the death of both, or of the survivors. But in a court of equity that will be treated as done which ought to have been done. There was really no need of any conveyance. It was enough that by agreement they divided the lands and severed the possession, and each afterwards occupied and enjoyed in accordance with that partition.
Another question presented is, whether the estate granted to the grandchildren became, at the death of the testator, a vested remainder, or remains a contingent remainder until the end of the term given to the daughters of the testator,— to vest at that time in the grandchildren then in esse. The weight of authority seems to be, that where an estate is granted to a class of persons described as survivors, such estate does not usually vest until the time designated for the beginning of the enjoyment of the estate by that class of persons; and the word “survivor,” or “survivors,” has, in such ease, reference to that period. The peculiar language of this will, however, shows clearly that such was not the testator’s intention. The language of the grant to the grandchildren is in presentí. There is nothing said about “surviving” grandchildren. The words are: “I hereby give the fee simple of” the lands “to my grandchildren, whatever number they may be, * * * share and share alike, to take possession only after the death of my said daughters.” Except in so far as limited by the words postponing the possession, the grant is present and unconditional of a present full fee simple to the grandchildren.
"We hold, therefore, that under this will the two grandchildren in esse at the death of the testator (the two children of Mrs. Teese) took at once a vested remainder in all these lands, to open, however, upon the subsequent birth of other grandchildren, if any, to let in those subsequently born. Each took at once a vested remainder in one-half of all these lands, subject to be divested pro tanto, from time to time, by the subsequent birth of other such grandchildren of the testator, if any. And so on the birth of Edward D. Cheney, June 28, 1865, the children of Mrs. Teese were each divested of one-third of her apparent share, and these three grandchildren, each, for the time, became invested with an estate in remainder in one-third of these lands,— and that ■ on the death of the grandchild Edward, his share or vested remainder, subject to like reduction, passed by descent to his heirs. And so on the birth of Alexander M. Cheney, (the now surviving son of Mrs. Cheney,) born September 18, 1868, the share of each of these grandchildren was reduced to that of one-fourth in such estate in remainder; and on the birth of Caroline T. Cheney, October 11, 1875, she became the owner of a grandchild’s share in this estate in remainder, which, in the then state of affairs, was one-fifth to each, and at her death, on May 26, 1877, her-share descended to her heirs. It follows, that each of the grandchildren now living, (that is, Mary M. Teese and Catherine M. Teese, daughters-of Mrs. Caroline Teese, and Alexander M. Cheney, son of Mrs. Catherine Cheney, deceased,) is the owner now, as devisee under this will, of a vested remainder of one-fifth in all these lands, subject only to be divested pro tanto by the hirth hereafter of a child or children of the body of Mrs. Teese, and that a like interest of one-fifth is now vested in the heirs of each of the children of Mrs. Cheney who were born after the death of their grandfather, and who are now dead.
There is some discussion in the briefs about the appointment of a receiver, and a motion is made in this court to set aside the appointment. We deem it unnecessary to discuss these questions in detail. By the views here presented the circuit court will find no difficulty in requiring the receiver to account, or in adjusting the accounts according to the rights of the parties, as herein presented.
The decree is reversed, and the cause remanded for other and further proceedings in accord with the views herein expressed.
Decree reversed.