98 Ill. 564 | Ill. | 1881
delivered the opinion of the Court:
The only question presented by this record is, whether, under the fourth clause of the will of Sarah M. Peck, deceased, her daughters, Marian A. Johnson and Helen M. Peck, took h life estate or the fee in and'to the kind therein described. The provision of the will in question is as follows :
4th. “I give and bequeath to my above named daughters an undivided third of ten acres of land, situated in the south-east quarter of section 4, town of Lake, county of Cook, State of Illinois, to be divided equally. In case of the death of either of the above daughters without issue, the share of the deceased shall revert to the remaining daughter. If either die leaving children, deceased’s share shall be divided equally between her offspring. In consideration of the above bequests, which shall be shared equally between my. above named daughters, if their father, Charles E. Peck, shall become destitute, they shall provide him with the actual needs of life.”
In making the will, if the testator had stopped at the first concluding clause with the word “ equally,” then it is clear the ■two daughters would have taken the fee in the property devised; but the testator, for some reason, saw proper not to do so, but added another provision, which materially changes and limits the clause first written. If, in placing a construe-' tion on the will, the latter clause could be rejected,.then there would be no difficulty in holding that the fee passed to the two daughters; but we are aware of no authority which would sanction a construction of that character. One of the familiar rules of construction of a will, or other instrument of writing, is, where there is uncertainty and doubt, all of its parts should be considered together, and, if possible, give every clause and provision effect according to the intention of the maker. Brownfield v. Wilson, 78 Ill. 467.
If, in this case, full force and effect are given to each clause of the will, what estate in the land devised did the testator intend to give to the two daughters? Was it an estate in fee, or for life only? If the language used in the last clause is to be considered and given force and effect, which we are bound to do, it seems plain that the daughters took only a life estate in the property.
In Bergan v. Cahill, 55 Ill. 160, it was expressly held that a devise of the fee may be restricted by subsequent words in the will, and changed to an estate for life. Here, the testatrix, after devising the property to her two daughters, declares that if either die leaving children, the share of the daughter so dying shall descend to her offspring, and be divided equally between them. This is a plain and unambiguous declaration, and means, in as plain terms as the English language could well express it, that the daughters are to hold this land for life, and upon their death it shall descend to their children, who shall take the fee.
It is, however, urged, that the personal charge upon the daughters in respect of the property, for the support of the father, is conclusive evidence of the intention of the testatrix to pass the fee. We perceive no reason why a charge may not be placed upon the devisee of property devised for life as well as property devised in fee, and we are well satisfied that where, by the terms of a will, it clearly appeared that the testator devised a life estate, a charge imposed upon the devisee, however great, in consideration of the bequest, could not change the construction of the will. If the devise was indefinite, a different rule would prevail.
The doctrine on this question is clearly stated in Jarman on Wills, vol. 2, page 126, as follows : “ The rule under consideration, however, is confined to indefinite devises; for where the. direction to pay is imposed on a person to whom there is given an express estate for life, or an estate tail, (whether limited in express terms, or arising constructively by implication from words introducing the devise over,) the charge is inoperative to enlarge such estate for life or estate tail to a fee simple.” See, also, Goodtitle v. Edmunds, 7 Durn. & E. 635; Willis v. Lucas, 1 P. W. 474; Denn v. Slater, 5 Durn. & E. 335; Doe v. Owens, 1 Barn. & Adol. 318.
There is nothing indefinite in regard to the devise in this case, but, on the contrary, it is clear and definite. The terms of the will are so plain, that there is no room for doubt in regard to the intent of the testator.
We are of opinion that the decision, rendered in this case, that the daughters took only a life estate, was correct, and it will be affirmed.
Decree affirmed.
