53 N.E.2d 438 | Ill. | 1944
The plaintiffs, John Grubmeyer, Minnie Sprague and Marie Kuehnert, who are the appellees in this case, brought a suit in ejectment against the defendants, Erich Mueller and William Koch, for certain real estate. The plaintiffs also filed an affidavit of common source of title through *530 the will of one Ferdinand Kloepper. The defendants filed a motion for judgment which was denied. After answers were filed, the defendant Mueller filed a counterclaim in equity which was answered by the plaintiffs in the cause. Judgment was entered in favor of the plaintiffs in the ejectment suit for an undivided one-half interest in the premises described in the complaint, which the court found the plaintiffs owned in fee simple and ordered that writ of possession issue. The court also found that Mueller had not maintained the allegations of his counterclaim, and by decree dismissed the same for want of equity. From this judgment and decree the defendants bring the appeal to this court.
The facts are set forth in the pleadings and also by stipulation. The stipulation of facts shows that the premises in question were owned by Ferdinand Kloepper in fee simple during his lifetime; that he died on April 6, 1899, leaving a last will which was duly probated in the probate court of Jackson county; that upon his death his wife, Margrette Kloepper, took possession of said premises and continued in such possession until the year 1920; that shortly after the death of Kloepper, his wife married the defendant, Erich Mueller, and she, together with Mueller, executed a mortgage on the premises to the Red Bud Trust Company to secure a note for the sum of $6000 dated August 23, 1919; that said mortgage was foreclosed in the circuit court of Jackson county by decree entered at the September term, 1920, of said court. The court found that Mueller and his wife owed the trust company $6383 and decree of foreclosure was entered. The master in chancery of said court sold the premises described in the mortgage on December 23, 1921, to one Whitney Gilbreath for the sum of $7344.15. The sale was approved by the court January 9, 1922, and a deed issued to the purchaser, Whitney Gilbreath, on the same date. The stipulation further shows that Whitney Gilbreath conveyed the property *531 by quitclaim deed on June 21, 1922, to the defendant, Erich Mueller; that Lena Gripmire, whose correct name was Lena Grubmeyer, died about 1900; that she was a sister of Ferdinand Kloepper and is the same person named in his will; that she left the plaintiffs as her only heirs-at-law; that Henry Meisner, named in the will of Ferdinand Kloepper, died in the year 1900. The stipulation further showed a table of heirship disclosing who were the heirs-at-law of the said Henry Meisner. The defendant, William Koch, was a tenant under Mueller. These facts are also shown in the complaint, the special plea of affirmative defense, the counterclaim and other pleadings.
The plaintiffs averred in their complaint that under the will of Ferdinand Kloepper, his wife, Margrette Kloepper, took only a life estate in the premises; that the mortgage executed by herself and her husband to the Red Bud Trust Company conveyed only her life estate. They further aver that on the death of Margrette Mueller, title to the real estate in controversy became vested in the heirs of Lena Gripmire and Henry Meisner and that plaintiffs are the children and only heirs-at-law of the said Lena Gripmire.
The special plea of affirmative defense and the counterclaim alleged that Mueller was the owner of the premises by virtue of the deed from Gilbreath; that by the first paragraph of the third clause of the will, Margrette Kloepper was given a fee-simple title to the real estate and that by the second paragraph of the third clause of the will she was also given the power to sell said property. By his counterclaim filed in equity, Mueller brought in the heirs of Henry Meisner as parties in order to avoid a multiplicity of suits and in order to remove the cloud on his title to the premises created by the plaintiffs claiming title to the real estate and bringing their suit in ejectment. He asked for a construction of the Ferdinand Kloepper will and that the title to the property in controversy be quieted in him. He also alleged that if the plaintiffs had *532 any interest in the property, it was an undivided one-half interest, which was subject to the rights of Mueller for improvements placed on the premises after he purchased the same, amounting to $4000.
The controversy in the cases arises over the construction of the third clause of the Ferdinand Kloepper will which is as follows:
"Third, all the rest and residue of my estate, real, personal and mixed of which I may at the time of my death be seized, possessed or in any wise entitled, I give, devise and bequeath unto my wife, Margrette Kloepper.
"At her death, all of this inheritance whatsoever there may be remaining is to be divided equally between the heirs of my sister Lena Gripmire, nee Kloepper, and Henry Meisner (brother of my wife)."
If it be determined that by the first paragraph of the third clause of said will Margrette Kloepper was given a fee-simple title to the real estate or that she was by the second paragraph of the third clause of said will given the power to sell said property, then the judgment in ejectment and the order dismissing the counterclaim for want of equity should be reversed. If, on the other hand, it be held that the third clause of said will created in the wife, Margrette Kloepper, only a life estate without any power of sale of the real estate, then the judgment and decree of the circuit court should be affirmed.
Standing alone, it will be conceded that by the first paragraph of the third clause of Ferdinand Kloepper's will an estate in fee simple to all of his property, real, personal and mixed, was devised and bequeathed to his wife, Margrette Kloepper. The argument arises over the language of the second paragraph providing that, at her death, "all of this inheritance whatsoever there may be remaining" is to be divided between the heirs of Lena Gripmire and Henry Meisner and whether or not such language resulted in reducing the estate to an estate less than a fee. *533
The appellants do not seriously assert, and we believe it cannot be successfully contended, that, under the will of her husband, Margrette Kloepper became seized of a fee-simple title to the property of her husband. (Griffiths v. Griffiths,
The Henderson case is a leading case in Illinois on this question. There the testator gave to his wife "all of my estate, both real and personal, to have and to hold, or to dispose of so much of the same as she may need, or wish to use, during her lifetime. Third — And after her death, if there is anything left, it is my will that whatever there may be left shall be divided equally," etc. In that case it was held that the broad and express power of disposal gave the widow the power to convey the fee. It was stated in that opinion, however, "The words in the third clause of the will, `and after her death, if there is anything left,' imply a power of disposition by the widow of the whole property devised. There are cases which hold where, by will, there is given a life estate in real and personal property, and there is a devise over in somewhat similar phrase as the above, as in Siegwald v. Siegwald, [
In the Cashman case,
In Keiser v. Jensen,
In each of the three cases there is language used from which the court could construe the intention of the testator to give a power of disposal to the owner of the life estate, but such language is lacking in the Kloepper will. The latest expression of this court construing wills of this character was In re Estateof Fahnestock,
Cases in Illinois supporting the statement in the Hendersoncase that phrases such as "what may be left" and "or whatever remains" are to be limited to personal property only and do not apply to real estate are numerous. In Strickland v. Strickland,
In Welsch v. Belleville Savings Bank,
In Catlett v. DeRousse,
In Quigley v. Quigley,
Other cases adopting and confirming this same principle areWard v. Caverly,
Appellants also urge that the insufficiency of subject matter to create a trust in favor of the heirs of Lena Gripmire and Henry Meisner is a bar to the plaintiffs' cause of action, citing, in support thereof, Mills v. Newberry,
The appellees were entirely warranted in bringing a suit in ejectment here because the defendant Mueller was in the exclusive possession of the premises and denied the plaintiffs any rights as cotenants. Lundy v. Lundy,
Believing that the will of Ferdinand Kloepper, by the third clause thereof, gave to his wife, Margrette Kloepper, only a life estate and the heirs of Lena Gripmire and Henry Meisner the remainder in fee, that the widow, as such life tenant, had no power of disposal of the real estate, and, also, that upon her death the appellees became the owners in fee simple of an undivided one-half of the land in controversy, the judgment and decree of the trial court are affirmed.
Judgment and decree affirmed.