Defrees v. Brydon
275 Ill. 530
Ill.
1916
Check Treatment
Mr. Chief Justice Craig

delivered the opinion of the court:

In construing wills the constant effort of the courts is to ascertain and give effect to the intention of the testator as expressed by the language of the whole will and to give effect to the same in so far as is consistent with the established rules of law and the public policy of the State. (Morrison v. Tyler, 266 Ill. 308; Howe v. Hodge, 152 id. 252.) This rule is as old as the law of wills itself and a necessary part of it, as any other rule would defeat the very object in permitting a disposition to be made of property by last will and testament. The intention is to be gathered from a consideration of the whole will and all of its parts, and not from the isolated sentences, clauses or paragraphs of which it is composed. (Black v. Jones, 264 Ill. 548.) Where it consists of an original will and one or more codicils, all are to be construed together as an entirety or one instrument. (40 Cyc. 1421; Fry v. Morrison, 159 Ill. 244; Hubbard v. Hubbard, 198 id. 621.) In cases of doubt, where some of the provisions of a will or codicil have been revoked by a later one, resort may be had to the revoked provisions as an aid in gathering the intention of the testator as expressed by his later acts. (Langdon v. Pickering, 19 Me. 214.) When so construed the question here presented is, what was the intention of the testator as expressed by the language used in the will in the case at bar ?

When resort is had to the provisions of the original will by which the trust was created, and which are superseded by the later provisions contained in the tenth item of the first codicil, it will be seen that the only substantial difference between the provisions of the two instruments in this respect is, that by the codicil the terms of the trust are so enlarged as to include all of the children of the testator, and the words “or afterwards” were added after the words, “if any of said children shall die before I do,” in that part of the will wherein provision is made for the disposition of the property in case of the death of any of the testator’s children without leaving issue during the lifetime of the testator. The codicil makes no change, however, in the character of the estate given, the time of its vesting or the time or manner of terminating the trust estate and the making of a division of the corpus of such estate among his children.

By the tenth item of the first codicil the testator gives the residue of his estate to trustees, “in trust for the sole use, ownership, benefit and behoof” of his five children, “in equal parts, share and share alike, they, my said children, each to have, hold and own the one-fifth part of the proceeds thereof annually, and when the fund shall be divided by said trustees or their successors, to have the one-fifth part of the principal thereof to her or him or her or his heirs forever, but until such division and the termination of the trust to be subject to the trust hereby made.” Had the testator stopped here there could be no question as to his intention or the character of the estate taken by each of his children. By apt and appropriate words expressing his intention as clearly as words could express it, he declares that the property is to be owned by his children and become theirs or their heirs forever, subject only to the provision of the trust therein created, which may be terminated at any time, in the discretion of the trustees. After making the foregoing provision, however, the testator proceeds as follows: “If any of said children shall die before I do, or afterwards, without leaving issue, such deceased child’s share shall go, and is hereby bequeathed, to my surviving children and their heirs, equally. In all cases the child or children of any of my children who may die shall take his or her deceased parent’s share only. If any of my above named children shall die leaving issue and such issue shall die childless, then in that case all property derived from me shall go to my other children and their -heirs, such heirs to have only their ancestor’s part in any case.”

Executory devises are applicable to testamentary dispositions of personal property as well as real estate. In the case of personal property the limitation is more properly termed an executory bequest. (40 Cyc. 1648; Glover v. Condell, 163 Ill. 566.) The will in this case disposes of real and personal property. Whenever a will purposes to dispose of real estate and personal property in the same words and in the same connection, and it is manifest that the testator intended both to go together, it is held the will must be so construed. Mulvane v. Rude, 146 Ind. 476, and cases cited.

Appellants insist that by use of the above language the testator limited and qualified the estate granted so that it became a base or determinable fee, liable to be divested in the event any of the children died without leaving issue. Appellee insists that by the above language the testator only • intended to provide against intestacy in the event of the death of any of his children without leaving issue, having in mind the rule that where a devisee or legatee dies during the lifetime of the testator, the devise or bequest to such child lapses and is to be distributed as intestate property. (Haight v. Royce, 274 Ill. 162; Dorsey v. Dodson, 203 id. 32; Magnuson v. Magnuson, 197 id. 496; Schumaker v. Grammer, 200 id. 48.) With the contention of appellee we do not agree. In the devising or granting clause the testator gives the estate to his children, naming them, and "to his or her heirs forever,” and also provides for the contingency of any child’s death after the death of the testator as well as before. This is inconsistent with an intention to provide only against intestacy in case any child’s death should occur prior to that of the testator, for the reason that if a child did not die until after the death of the testator, the property devised to him or her would not descend as intestate property but would immediately vest in such child or his or her heirs upon the death of the testator and descend to such child’s heirs in case of the death of such child after the death of the testator, in accordance with the laws of his domicile. Language was used in the sixth item of the original will similar to that used in the tenth item of the first codicil, with the exception that no provision was there made for the contingency of the death of a child after the death of the testator. In the tenth item of the first codicil this contingency is provided for by the addition of the words “or afterwards” after the words “before I die,” as contained in the original will.

While it is true that where the same or similar words are used in different parts of the same instrument the presumption is that the testator used them in the same sense in each instance, (Madison v. Larmon, 170 Ill. 65,) this presumption cannot prevail where the words are used in connection with other words not contained in the former instrument, which explain, change or modify the legal effect of the words as used in such former connection. By the addition of the words “or afterwards,” in the tenth item of his first codicil, the testator extended the provisions of that item so as to include the death of a child or children after his death as well as before, and thus negatived any presumption that it was his intention by the above item to provide only against intestacy as to any part of his estate in case of the death of any of his children without leaving issue, which would not occur in case of the death of such child after the death of the testator. Nor was such provision necessary, as the testator, by the interposition of the word “or” between the devise to his children and the word “heirs,” indicated that it was his intention to substitute the heirs in place of their ancestors in case of the death of the latter before the estate vested. Ebey v. Adams, 135 Ill. 80.

In this connection it is to be observed that while a trust is created and the devise is to the trustees as such, it is expressly provided that the same is in trust “for the sole use, ownership, benefit and behoof” of the testator’s children. It is a familiar principle in the construction of wills that where a trust is created and the devise is made to trustees for the purpose of enabling them to execute the terms of the trust, “the trustees will take exactly that quantity of interest which the purpose of the trust requires,” and that if the trust requires it the fee will be taken, but if a less estate will suffice, a less estate, only, will be vested. (Ebey v. Adams, supra.) It is also well established that an absolute gift of all of the income of the trust estate indicates an intention on the part of the testator that the fee in the trust property shall vest in his children at once upon his death. (Bush v. Hamill, 273 Ill. 132.) It was not necessary for the purpose of executing the trust provided for in this case that the trustees should take the fee simple title to the property, and under the rule announced in the above cases we must hold that such title did not vest in them by virtue of the above provisions of the will.

It is further to be noted in this connection that the testator expressly provides that when the trust is terminated his children are each “to have the one-fifth part of the principal thereof,” meaning the trust estate, “to her or him or her or his heirs forever, but until such division and the termination of the trust to be subject to the trust hereby made.” The provision that the same should remain subject to the trust thereby created is wholly unnecessary and superfluous if it was the intention and understanding of the testator that by the terms of his devise the title was not vested in the children but was in the trustees until the time of the termination of the trust and the division of the trust estate. When these various provisions of the will are considered and the same construed in the light of the well settled rules of law, we think it must be held that the intention of the testator as expressed by the language of his will was not to provide against intestacy in case of the death of any of his children without leaving issue, but rather to control the disposition of the estate devised in case of such contingency.

Considerable force is added to this construction by the sentence in that item which provides that any of his children may, as he or she pleases, by will give his or her share of the estate to any other children or lineal descendants of the testator or of his deceased wife, giving only to persons of the blood of the testator or his wife, thus clearly evincing an intention and desire on the part of the testator to circumscribe and control the devolution of the property devised by him, in case of the death of any of his children without leaving issue, so that it should only descend to and vest in those who were kindred of the blood of himself or of his wife. The provisions in question were well adapted for that purpose and are susceptible of no other construction. To construe them otherwise would require not only that we ignore the clearly expressed intention of the testator as disclosed by this latter clause, but also that we wholly disregard the well established rules of law above announced and reject as superfluous and meaningless the words “or after-wards,” added to that portion of the original will wherein provision is made for the devolution of his estate in case of the death of any one or more of his children without issue, after the death of the testator. Such a construction is to be avoided, if possible, as in construing wills that construction is to be favored which will render no word, phrase, clause or sentence superfluous or meaningless. Bergman v. Arnhold, 242 Ill. 218.

It now remains to consider the effect of this provision as a limitation upon the estate previously devised by the testator to his children,

Appellee insists that as the fee or absolute title was devised by the first clause it could not subsequently be cut down to a lesser estate by any subsequent clause or clauses in the will. While this is true as a general proposition, there is the well recognized exception made to this otherwise general rule in case of an executory devise, whereby the testator may limit a fee upon a fee, by way of qualification of the first estate granted, in such a.way that upon the happening of some contingency the estate first granted may be cut down to a base or determinable fee. Smith v. Kimbell, 153 Ill. 368; Bradsby v. Wallace, 202 id. 239; Fifer v. Allen, 228 id. 507; Ahlfield v. Curtis, 229 id. 139; Brenock v. Brenock, 230 id. 519; Mayer v. McCracken, 245 id. 551; Williams v. Elliott, 246 id. 548; Ashby v. McKinlock, 271 id. 254.

In Williams v. Elliott, supra, on page 552 of the opinion it is said: “Although an estate in fee simple is devised it may be limited by a subsequent valid provision that the estate shall go over to others.upon the happening of a certain contingency. The estate, when so limited, is still a fee, for the reason that it will last forever if the contingency does not happen, but so long as it is possible that the contingency may happen it is a base or determinable fee. One of the contingencies upon which such a limitation may lawfully rest is the death of the first devisee without issue, and so far as the executory devise in this case depended upon the death of Phoebe W. Price without issue it was valid.—Ackless v. Seekright, Breese, 76; Summers v. Smith, 127 Ill. 645; Strain v. Sweeny, 163 id. 603; Smith v. Kimbell, 153 id. 368; Lombard v. Witbeck, 173 id. 396; Gannon v. Peterson, 193 id. 372; Johnson v. Buck, 220 id. 226." •In that case the testator devised his real estate in fee simple to his niece and three daughters and their heirs and assigns forever, subject to the life estate of his widow. This was followed by a provision that the estate devised to the niece should go to the daughters in equal--parts, in fee simple, in case the niece should not dispose of it by will or otherwi.se before her death and should die without issue, seized of such estate. We there held the devise created by such provision to be an executory devise, and that the same was void for the reason that it vested in the first taker the absolute power of disposition of the whole estate, which is inconsistent with the limitation attempted to be imposed upon it as an executory devise.

In Mayer v. McCracken, supra, the testator by the third clause of his will gave,his daughter certain property situated at and known as 147 Center street, in the city of Chicago, her heirs and assigns forever. By the eighth clause he further directed that should his daughter die before his wife, then all of the property, real and personal, bequeathed to her should belong to his wife, her heirs and assigns forever, provided that if the daughter married and had children then the estate should belong to her children, the wife to act as their guardian. We there held the devise to the daughter created a base and determinable fee in her, and said: “The principal questions at issue and to be determined here depend upon the construction of the last will and testament of John B. Mayer. The third clause óf his will gave to the daughter, Anna Mayer, (afterwards Mc-Cracken,) the fee to the real estate therein described, and, standing alone, created in her an estate in fee simple. It is the policy of our courts to adopt such a construction of a will as will give an estate of inheritance to the first devisee unless there are other clauses in the will which disclose clearly that it was the intention of the testator to limit or qualify the estate devised. In this will there can be no question as to the intention of the testator, as by the eighth clause he discloses clearly and expressly that he desired to make an executory devise to Veronicka Mayer, her heirs and assigns forever, of the same property. This question has been before us so frequently that it is unnecessary to cite authorities as to the proper construction to be placed upon this will in determining the estate taken by the daughter, Anna, in the property devised to her by the third clause. The executory devise is valid, and Anna was given a base or determinable fee in the property at 147 Center street, which would be defeated by her death without issue during the lifetime of her mother. This property having been taken by condemnation proceedings, in which all the parties having any interest in the real estate were made defendants, the money awarded by the jury and paid by order of the court into the hands of the county treasurer took the place of the real estate and was subject to the same limitations under the will of John B. Mayer as the real estate itself had been.”

In Smith v. Kimbell, supra, the testator owned certain property in the city of Joliet, in this State, and in LaPorte county, Indiana, and directed that the same should be and become the property of his daughter, Sarah Jane Spears, and that should she die leaving no heirs all of the property should be equally divided among his sisters, naming them. In that case we held the devise to the daughter created a base or determinable fee by way of executory devise in her, and that the same was not void as a perpetuity for the reason that the words “die leaving no heirs” were equivalent to “dying leaving no children or issue” and indicated a definite failure of issue, and that a devise of such character which is to take effect upon a definite failure of issue is not void under the rule against perpetuities.

Under the foregoing authorities there can be but little question but that if this will is construed in accordance with the decisions of this State the children of the testator took but a base or determinable fee in the property devised to them, subject to be divested and revert to the children of the grantor, in accordance with the provisions of the will, in case of the death of any child or children without leaving issue.

In construing this will it must be borne in mind that the testator was a resident of the State of Indiana, that his property was situated there and his will was drawn and executed in accordance with the laws of that State. Under such circumstances it is to be presumed that he was familiar with the laws of that State and intended that the devises and bequests therein made should be construed in accordance with the laws of such State. However, the law in relation to the creation of executory devises is substantially the same in every State, and our attention has been called to no case in the State of Indiana announcing a rule in any way conflicting with the one in force in this State. In the recent case of Curry v. Curry, 58 Ind. App. 567, in construing a will by which the testator devised the residuum of his estate, both real and personal, to his son on certain conditions, restrictions and limitations and creating a trust in respect to such estate, which the trustees were authorized to terminate, on certain conditions, when the devisee attained the age of forty years, and which further provided that if his son should never marry, or if he should marry and die without leaving a wife and children him surviving so as to inherit after him, then $10,000 of the property devised to the son should be equally divided between two persons named, share and share alike, and the residue given to another person who was then living in the State of Ohio, it was held that the devise to the son created a base or determinable fee in him. In answer to the contention of appellants that the devise to the son constituted a complete and absolute gift to him of the property, which could not be cut down by any subsequent clauses in the will, the court said: “In connection with the rule insisted upon by appellants we must not ignore another equally well settled fact, viz., ‘that where an estate otherwise an estate in fee simple is devised in one clause of a will in clear and decisive terms, and the subsequent provisions clearly and distinctly show an unmistakable intention upon the part of the testator to give an estate less than a fee simple, such latter intention must control.’—Hayes v. Martz, 173 Ind. 279, 287; 89 N. E. Rep. 303; 90 id. 309, and cases cited.” And it was there further said: “It is also true that where a testator by one item of his will gives to a devisee an absolute and unqualified fee in real estate and by another item attempts to make a gift or devise over of what may remain undisposed of by such first taker at his death, that such limitation over will be held void for repugnancy. This is necessarily so, because where such testator by one item of his will devises to a first taker an absolute estate in fee, he has no estate left after the vesting of such precedent estate out of which to carve a remainder. (Outland v. Bowen, 115 Ind. 150; 17 N. E. Rep. 281; 17 Am. St. Rep. 420; Mulvane v. Rude, supra; Ide v. Ide, supra; Damrell v. Hartt, 137 Mass. 218.) The authorities, however, seem to recognize a distinction between a limitation over by way of remainder and a limitation over by way of executory devise. The former will not be upheld while the latter will be, provided that by the terms of such limitation over the rule against perpetuities is not violated. See Selman v. Robertson, 46 S. C. 262; 24 S. E. Rep. 187, and authorities cited.”

From the above language it will be seen that the law in the State of Indiana is substantially the same as it is in this State on this question. It matters not by the laws of which State the will in this case is construed, the ultimate conclusion reached must be that Catherine S. Brydon took only a base or determinable fee in the property devised to her by her father’s will, and upon her death without leaving issue her estate reverted to and vested in the other children of the testator.in accordance with the terms and provisions of his will.

Appellee insists that the executory devise created by the tenth item of the first codicil is void, for the reason that it vests the first taker with the absolute power of disposition of the property, which is inconsistent with and repugnant to the limitation attempted to be imposed upon it by such devise. The language relied upon as vesting this power in the first taker is the provision that any of the children “may, as he or she pleases, by will give and bequeath his or her share of my estate to any other child or lineal descendant of mine or of my deceased wife, giving it only to persons of my or her blood,” coupled with the further provision that when the trustees decide to terminate the trust “they do not do so except in a very strong, clear case of its propriety, and not in any case to enable such child to invest his or her money in speculation.” While the foregoing language, standing alone and by itself, strongly implies such power, we think it camiot be so construed when it is read in connection with the other provisions of the will. The testator does not say that the children shall have the right to dispose of the property when the trust is terminated, and the fact that he says that the trust shall not in any case be terminated to enable them to invest their money in speculation does not necessarily imply that they shall have such power and may dispose of the fee title to the estate vested in them by the will. Nor do we think the fact that they are given the right to dispose of their share by will renders the executory devise or bequest void for that reason. The power granted by that clause is not an absolute right of disposition, but by its terms is so circumscribed and limited that it could only be exercised in favor of the lineal descendants of the testator or his wife. It is inconsistent with the devise of the absolute estate to the children, and would be void as a limitation upon such estate for the reason that a person cannot make an absolute gift of his property in one part of his will and by a subsequent clause restrict the free use or disposition of such property. (Jenne v. Jenne, 271 Ill. 526.) The power granted in the instant case is not one of absolute and unrestricted power of disposition but is a limited one, which can only be exercised at death by will, and then only in the particular way pointed out by the testator in his will. This is not sufficient. The power of disposition, in order to defeat the base or determinable fee created by the executory devise, must be absolute and unlimited, and such that it may be exercised .during the lifetime of the devisee as well as by will at death. (24 Am. & Eng. Ency. of Law,—2d ed.—446.)

In Terry v. Wiggins, 47 N. Y. 512, the power annexed to the gift was “to sell or otherwise dispose of the property if the devisee should require it or deem it expedient,” and it was there said: “The power of disposal is not absolute, so as to bring it within the rule making all devises with absolute power of disposal in the devisees gifts in fee. The power could only be exercised, under the will, in case the wife should require it or should deem it expedient,—that is, with a view to her ‘personal use and maintenance,’ the purposes for which it was given. (Trustees of Auburn Seminary v. Kellogg, 16 N. Y. 83.) The power was to be exercised during life and not at death. An absolute power of disposal includes a power to dispose of by will as well as by sale or otherwise during life, which is incompatible with a mere life estate, and such power is not given by the terms of this will. The words of the power, in the connection in which they are used, clearly indicate an intention to authorize a disposition of the estate by the devisee only by a conveyance, which should take effect during her lifetime, and the whole scope of the will tends to the same conclusion. ' It was not the intention of the testator to confer upon her the power to dispose of the property by will upon any object of her bounty.” The same is true in the case at bar, which limits the power of disposition by will to those who are of the blood of the testator or his wife.

In Healy v. Eastlake, 152 Ill. 424, we held a devise of a base or determinable fee to a daughter, with the provision that should she die without issue of her body the remainder should at once pass and absolutely vest in Benjamin S. Lamothe and his heirs, but should she die leaving issue of her body then the remainder of the property should pass and be vested absolutely and forever in such issue, “subject, nevertheless, to any provisions or restrictions as’my said daughter, Alice, may by will and testament see fit to make,” and with the further provision that “I hereby express the wish that my said daughter, Alice, will make such will; that should the said Benjamin S. Lamothe survive her said issue, that then the remainder of the said property shall vest in him, I being particularly desirous that said Benjamin S. Lamothe should possess all the remainder of my said property unless there be living'direct issue of my said daughter, Alice,” did not confer such an absolute power of disposition as would defeat the base or determinable fee created by the other provisions of the will. We think the same may be said of the limited power of disposition attempted to be conferred in this case, and what is said in the foregoing decision is controlling here.

The appellee further insists that the appellants are precluded from bringing their action by reason of the proceedings had in the court of common pleas of Marion county, Indiana, more than forty years ago, by which the trust was terminated and the trust property divided -among the children of the testator in accordance with the terms of his will. As we construe this instrument there is no connection whatever between the title to the property taken by the children under the will and the trust created by the same instrument. Each is wholly independent of the other, and the proceedings had in the court of common pleas of Marion county had nothing whatever to do with the fee of the property vested in the children under such will. By the provisions of the will the testator has vested the fee in the property in his children, subject to be divested and determined in the event of the death of any one or more of them without leaving issue and subject to the trust therein created, which might be determined at any time, in the discretion of the trustees. The sole object and purpose of the proceedings in the court of common pleas was to secure a termination of the trust and invest the children of the testator with the property devised to them, relieved of the trust. The only matter then before the court and the only thing determined at the time was that the trust should be terminated, but in terminating the trust the court in no way invested the children with any different title to the property from that given to them by the will of their father. Such proceedings, therefore, do not bar them from now asserting their rights in the fee of the property given to them by the other provisions of the will.

For the reasons given, we are of the opinion that the children of John H. Bradley only acquired a base and determinable fee in the property in question, which was subject to be divested and revert to the children of the testator in the event of the death of any child without leaving issue. This occurred in the case of Catherine S. Brydon.

Appellants were not guilty of laches. They commenced their action within a reasonable time after any rights claimed by them accrued. They had no rights which they could enforce prior to the death of Mrs. Brydon childless. While appellants cannot recover the specific property originally turned over by the trustees to Mrs. Brydon, that is no fault of theirs. If they are entitled to recover at all they are entitled to be paid the amount of the personal property turned over by the trustees to Mrs. Brydon.

For the reasons given, the judgment of the Appellate Court will be reversed and the decree of the circuit court will be affirmed.

Judgment of Appellate Court reversed.

Decree of circuit court affirmed.