241 Ill. 542 | Ill. | 1909
delivered the opinion of the court:
This is a bill for partition filed by Silas A. Gaunt in the circuit court of Hancock county for the partition of certain real estate of which John D. Stevens died seized. John D. Stevens departed this life January 3, 1894, leaving a last will, which was duly probated in the county court of Hancock county on January 15, 1894. The only question involved in this case concerns the construction to be given to the fourth clause of the will, which is as follows:
“All the rest and residue of my estate, of every nature, kind and description, not hereinbefore devised and bequeathed, I devise and bequeath to my said wife, Julia A., and my two daughters Leonia M. and Almira A., and to the survivor or survivors of them, share and share alike.”
The bill alleges that at the time of his death John D. Stevens left surviving him his widow, Julia A., and three daughters, Leonia M., Almira A. Stevens and Clara B. Jackson. In 1898 Leonia M. married appellant, Silas A. Gaunt. Leonia M. Gaunt (nee Stevens) died in 1904, intestate, leaving no child or children, but leaving her husband, mother and sisters as her only heirs-at-law. The bill is based on the theory that the fourth clause of the will quoted above created the relation of tenants in common between the widow and the two daughters named in the said fourth clause. A demurrer was sustained to the bill in the court below, and the complainant electing to stand by his bill, the same was dismissed for want of equity.
It is conceded by appellant that if the fourth clause of the will creates a joint tenancy in the devisees therein mentioned he has no interest in the lands described in the bill. Appellees contend that under the fourth clause of the will Leonia M. Gaunt did not take an estate of inheritance as tenant in common with Julia A. and Almira A. Stevens, as is alleged in said bill, but that whatever estate was created in her terminated at her death.
A joint tenancy is where two or more persons have any subject of property, jointly, in which there is unity of interest, unity of title, unity of time and unity of possession. (2 Blackstone’s Com. 180.) At common law a grant or devise to two or more persons without limitations created a joint tenancy. (Aveling v. Knipe, 19 Ves. 441; Freeman on Co-tenancy, sec. 118.) Words or circumstances of negation were necessary to avoid this result. The chief characteristic of joint estates is the doctrine of survivorship. (2 Blackstone’s Com. 184.) The doctrine of survivorship is not in accordance with the genius of our institutions, hence this incident of estates has been generally abolished in the United States except in a few instances, and in those jurisdictions where joint estates are still recognized they are very much restricted by statutes. Burnett v. Pratt, 22 Pick. 557; Warvelle on Abstracts of Title, sec. 247.
As early as January 15, 1821, the General Assembly of this State passed an act “concerning the partition and joint rights and obligations,” section 2 of which is as follows: “That 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 shall be subject to debts, dower, charges, etc., or transmissible to executors or administrators, and be considered, to every intent and purpose, in the same view as if such deceased joint tenants had been tenants in common.” The effect of this statute was to practically abolish joint tenancies, except where such estates were held by executors, trustees or others holding estates in autre droit. (Mette v. Feltgen, 148 Ill. 357.) This statute has never been expressly repealed but has-been retained in all of the revisions of our statutes, and is now found as section 1 of chapter 76 of Hurd’s Revised Statutes of 1908. Afterwards, on January 31, 1827, the General Assembly passed an act “concerning conveyances of real property,” section 5 of which is as follows: “No estate in joint tenancy, in any lands, tenements or hereditaments, shall be held or claimed under any grant, devise or conveyance whatever, heretofore or hereafter made, other than to executors and trustees, unless the premises therein mentioned shall expressly be thereby 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 a tenancy in common.” This section of the act of 1827 has been re-enacted in all of the revisions of our statutes, and is now found, without substantial change, as section 5 of our present act concerning conveyances.
This court decided in Mette v. Feltgen, supra, that section 5 of the act of 1827 so far repealed, by implication, section 2 of the act of 1821 as to authorize the creation of joint estates possessing the qualities and incidents which the common law attaches to them, where the language of section 5 of the Conveyance act, or other equivalent words, are used clearly indicating an intention to create a joint tenancy. In other words, the effect of section 5 of the act of 1827 was to reverse the common law rule, so that a conveyance to two or more persons creates the relation of tenants in common unless the intention to vest a joint estate is clearly manifested, as provided by section 5 of the act of 1827. The holding in the Feltgen case is now the established doctrine in this State. Slater v. Gruger, 165 Ill. 329; Cover v. James, 217 id. 309.
While it is settled that the exact words of the statute need not be used in the instrument, yet the unfavorable disposition of the legislature toward joinf estates has influenced this court in establishing the rule that the intention to create such estate must be so clearly expressed as to leave no reasonable doubt in the mind of the court of the purpose to create such estate. If the instrument contains language from which it can reasonably be inferred that the maker contemplated a division of the property among the purchasers, or from which it can be seen that a distribution,'either in equal or unequal shares, was intended, such langxiage will be held to negative an intention to create an estate in joint tenancy and the purchasers will take as tenants in common. (Freeman on Co-tenancy, gee. 23.) In Mittel v. Karl, 133 Ill. 65, this court held that the language, “convey and warrant to Maria Jobst -and Michael Jobst, her husband, and the survivor of them, in his or her own right,” did not create a joint tenancy under our statute. In discussing this question on page 70 it was said: “But aside from this, it will be observed that our statute in plain language declares that no estate in joint tenancy shall be held or claimed unless the premises shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy. The deed in question contains no such declaration. It provides for a survivorship, it is true, which is regarded as one characteristic of a joint tenancy; but the declaration which the statute requires to establish the estate is nowhere found in the deed, and in the absence of such a declaration we are inclined to hold that the estate was not created.” This language may be regarded as somewhat in conflict with the final conclusion reached in that case. However this may be, we think there is no doubt of the soundness of,the conclusion that a joint estate was not created by fhe deed involved in that case.
The only language of the fourth clause of the will now under consideration that gives any color to the claim that a joint estate was intended are the words, “to the survivor or survivors of them.” Whether these words, if unlimited in any way, would be sufficient to create a joint tenancy we are not called upon to decide, since in our opinion the words “share and share alike,” which immediately follow the words of survivorship, clearly indicate that the testator intended that there should be an equal division between such of the devisees as might be living at his death, which division is inconsistent with the existence of a joint estate.
Our conclusion is, that the fourth clause of the will created the relation of tenants in common between the devisees mentioned in said clause. This conclusion is strengthened by a consideration of the third clause of the will. By that clause the testator devised to another daughter, Clara B. Jackson, for and during her natural life, certain real estate, which at her death was to go to the heirs of her body in fee, share and share alike, and it was provided that if Clara B. should die without issue or descendants of children then- living, then such real estate was to revert in fee to the wife, Julia A., and the two daughters mentioned in .clause 4, or the survivors of them, in equal proportions. It will be seen that by the third clause of the will the testator made a provision for the children of his only married daughter by giving them the fee in the real estate which was devised to their mother for her natural life. It is neither reasonable nor natural that the testator would thus provide for his grandchildren, the issue of one daughter, and by the next clause of his will so devise the residue of his estate as to cut off the children of one, and possibly both, of the other daughters. Again, it will be observed that the devise over in clause 3 to the devisees mentioned in clause 4 is in fee, in “equal proportion.” It cannot reasonably be contended that the contingent remainder thus given to the wife and the two daughters under clause 3 is a joint estate. It is difficult to believe that the testator would attempt to give the same devisees one part of his estate as tenants in common in fee and another part to the same devisees in joint tenancy.
It follows from the foregoing views that the decree sustaining the demurrer and dismissing the bill is erroneous and will have to be reversed.
The decree of the circuit court of Hancock county is reversed and the cause remanded to that court, with the directions to overrule the demurrer and proceed with the . case in accordance with the views herein expressed.
Reversed and remanded, with directions.
