King v. King
74 N.E. 89
Ill.
1905
Check Treatment
Mr. Justice Magruder

delivered the opinion of the court:

Thе mortgage, executed by the plaintiff in error and her husband to Michael Noonan, purported to convey to the mortgagee a fee simple title in the premises mortgaged; but the decree of the court below found that the plaintiff in error, when she executed the mortgage, had only a life estate in the mortgaged premises. The first question, therefore, which will be considered, is whether or not the will оf William H. Galvin was properly construed by the court below, as vesting plaintiff in error with a life estate only. She now claims before this court that, upon a proper construction of the will, she is entitled to a fee simple estate, and that for that reason the decree of the circuit court was erroneous.

First—In the first clause of the will the testator gives, devises and bequeaths “unto my daughter, Mary A. Galvin, the farm оwned by myself in the town of Wallese, county of LaSalle,” etc. This clause, standing by itself, devised to Mary A. Galvin, now Mary A. King, the fee to the farm in question,-which was the farm upon which she executed the mortgage above mentioned. It contains, however, no words of inheritance, that is to say, it simply devises the farm to Mary A. Galvin alone, and not to Mary A. Galvin, and her “heirs and assigns.” If an estate is devised to a person without the use of such words of inheritance, the devisee will take in fee simple, unless a less estate is limited by express words in a subsequent part of the will, or by construction, or operation of law. (Metzen v. Schopp, 202 Ill. 284, and cases there cited). The question then arises■ whether the fee simple estate, thus devised to the plaintiff in error, was reduced to an estate less than a fee by any of the clauses of the will, following and subsequent to the first clause.

By the second clause of the will the testator provides, as to his daughter, Mary A. King, that, “in case of her death without ishure [issue], then all of the above described property, real and personal, revert back to lawful heirs.” It is conceded that Mary A. King, formerly Mary A. Galvin, did not die without issue, but survived her father, and after his death married, and has three children, to-wit, the cross-complainants herein, Gertrude, Florence and Harold King. The words, “in case of her death without issue,” or “in case she dies without issue,” have been construed by this court to mean “without having had issue,—not without surviving issue.” (Field v. Peeples, 180 Ill. 376; Voris v. Sloan, 68 id. 588; Smith v. Kimbell, 153 id. 368). Therefore, it may be said here, as was said in Field v. Peeples, supra: “No further attention will, therefore, be given to that clause in the will.”

By the fourth clause of the ’will, however, the testator provides as follows: “And in case of the death of dauther [daughter] and she left one or more children, then the property goes to them when of adge, and, in case of no children, then property will be divided as follows, to-wit, to my sister, Elen Burk,” etc. By the use of the words, “and in case of the death of dauther and she left one or more children, then the property goes to them when of adge [age],” it was clearly the intention of the testator that the daughter, the present plaintiff in error, should have the life estate only in the property, and that the remainder, after the expiration of the life estate, should go to her children. In Johnson v. Johnson, 98 Ill. 564, the testator gave and bequeathed to his daughters a certain quantity of land to be divided equally, and provided as follows: “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;” and we there said (p. 570) : “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.” The case of Johnson v. Johnson, supra, is on all-fоurs with the case at bar. Here, as there, the will refers to the two contingencies—one, where the daughter dies leaving no children—in which case the property is to be divided among the sisters of the testator and others,—the other, where the daughter dies leaving children, in which case the property is to go to them when of age. By the provision that, in case the daughter should die and leave one or mоre children, then the property should go to them when of age, the testator did not intend to refer to the death of his daughter before his own death.

In Furnish v. Rogers, 154 Ill. 569, it was held that a devise of property to a niece, followed by the words, “all of which is to go to her children should she marry; if she should die childless, then to be divided,” etc., creates a life estate in such niece. (See also Bradsby v. Wallace, 202 Ill. 239; Schaefer v. Schaefer, 141 id. 337).

Plaintiff in error refers to the case of Kohtz v. Eldred, 208 Ill. 60, in support of the contention that this will gave the fee simple title to plaintiff in error. The argument is, that the language,, used in the fourth clause of the will, refers to the death of plaintiff in error prior to the death of the testator. If the true meaning of the language is as thus contended for, then, under the doctrine of the case of Kohtz v. Eldred, supra, the gift over to the other beneficiaries named in the will is merely substitutionary, depending upon the contingency of the death of the primary devisee in the lifetime of the testator, and designed to prevent a lapse, and, as the plaintiff in error survived her father, the testator, the contingency, upon which the other beneficiaries named in the will were to take, could never happen, and the fee would be vested in plaintiff in error upon the death of the testator. The case, however, of Kohtz v. Eldred, supra, has no application to the case at bar. In that case, the testator gave his property to his executor in trust for his two children, and provided that, if either should die leaving no issue surviving, then the share of such deceased child should go to the survivor, and, if both should die leaving no issue surviving, that the estate should be divided as provided; and we there held that this came under the rule that, where there is a devise simpliciter to one person, and, in case of his death, to another, the words refer to a death in the lifetime of the testator. This rule, however,- does not apply when the will mentions or indicates a time other than the death of the testator, as is the case with the will of William H. Galvin.

“The rule of construction, by which a devise to A in fee, followed by a provision that, if he die without issue, the lands are to go to B, is commonly taken to refer to the death of A during the testator’s life, has no application where the prior estate is one for life in the first taker, with a vested remainder in his' children.” (Hollister v. Butterworth, 71 Conn. 57; Mullarky v. Sullivan, 136 N. Y. 227; 17 Am. & Eng. Ency. of Law,—2d ed.—p. 574, and note). “The rule that, where there is a bequest to one person absolutely, and, in case of his death without issue, to another, the contingency referred to is a death in thе lifetime of the testator, does not apply when a point of time, other than the death of the testator, is mentioned, to which the contingency can be referred, or to a case where a life estate intervenes, or where the language of the will evinces a contrary intent.” (17 Am. & Eng. Ency. of Law,—2d ed.—p. 574, note; Matter of Denton, 137 N. Y. 428; Bradsby v. Wallace, 202 Ill. 239; Fussey v. White, 113 id. 637; Summers v. Smith, 127 id. 645; Jones v. Moore, 96 Ky. 273; Smith v. Kimbell, 153 Ill. 368; Budge v. Walling, 45 N. J. Eq. 10).

At the time the will of William H. Galvin was made, his daughter, the plaintiff in error, was only fifteen years old, and it was evident that he did not contemplate the contingency of her death before his own. He provided that she should have certain money then on desposit in the bank, and out of it should place a coping around her mother’s grave. He also appointed ‍‌‌‌​​​​​​​‌‌​​​​​‌​‌​‌​‌‌‌‌‌‌​​​​​‌​‌‌‌​​‌​‌‌​‌‌‍guardians for her, showing that he expected his death to occur before hers and before it should be determined whether she should diе, leaving children, or not leaving children. For the reasons above stated, we are of the opinion that the court correctly construed the will in holding that plaintiff in error was only entitled to a life estate in the property.

Second—The decree is said to be erroneous for the alleged reason that, although based upon an original bill to foreclose a mortgage, it cannot be sustained as a decree of foreclosure. 'Two reasons are urged in favor of this contention; one is, that the note and mortgage were not due when the bill was filed; and the other is that the decree provides for a sale without redemption.

The decree finds upon its face, that the principal and interest specified in the terms of the note, secured by the mortgage,' are due. The mortgage, by thе use of the words, “and warrants,” must be construed the same as if full covenants of seizin, good right to convey against encumbrances, of quiet enjoyment, and general warranty were fully written therein. (Conveyance act, sec. 11; 1 Starr & Curt. Ann. Stat.—2d ed.—p. 924).

The mortgage also provides that, in case of a breach of any of the covenants or agreements contained therein, the whole of the principal and interest, secured by the note, should thereupon, at the option of the holder, become immediately due and payable. There was a breach of the covenant contained in the mortgage, because the covenant was that the mortgagor held a fee simple title, while, under a proper construction of the will of William H. Galvin, the mortgagor, the present plaintiff in error, had only a life estatе, instead of a fee simple title. The decree finds that plaintiff in error and her husband mortgaged the property to Noonan with full covenants of warranty of the title to said real estate, but that she and her husband had no right or power to convey more than a life estate for the life of plaintiff in error, and that Michael Noonan, the complainant in the original bill, was entitled, by reason of a breaсh of such covenants of warranty, to foreclose his mortgage.

The decree also finds “that the said Mary Agnes King has filed her consent in writing in this cause that the order of sale, to be entered herein, may provide for the sale of her said life estate, and that said premises may be sold in fee simple, free of all conditions, limitations or restrictions, and that the present value of her life estate may bе computed by the life tables, commonly known as the Northampton tables, and that her portion of said estate may be set off to her in cash, subject, however, to the amount due to the said Michael Noonan as aforesaid.” Although, under other circumstances,- the decree might be erroneous as providing for a sale of plaintiff in error’s life estate without redemption, yet inasmuch as the deсree finds that she consented to such sale, she is estopped from now questioning the validity of the decree in that respect. A mortgagor may waive his privilege of redemption. In Frank v. Bruck, 4 Ill. App. 627, the late Mr. Justice Bailey, in delivering the opinion of the Appellate Court, said: “It appears upon the face of the decree that Barbara Frank consented to an absolute sale of the mortgаged premises. This recital of the decree is conclusive, and establishes beyond controversy the fact that such consent was given. She cannot now be permitted to withdraw or question such consent, or complain of the provisions of the decree entered in pursuance thereof.”

There is no bill of exceptions, or certificate of evidence, in the record in this case, as brоught before this court by the writ of error, issued herefrom. This being so, the facts recited in the decree must be held to have been found by the chancellor upon sufficient evidence. In Schuler v. Hogan, 168 Ill. 369, we said (p. 383) : “As there is no bill of exceptions or certificate of evidence in the case, we cannot say that the findings in the decree are not correct. Where a decree recites that it is by consent, it will be presumed that it is upon sufficient ‍‌‌‌​​​​​​​‌‌​​​​​‌​‌​‌​‌‌‌‌‌‌​​​​​‌​‌‌‌​​‌​‌‌​‌‌‍evidence; and where the evidence is not preserved in the record, either by a bill of exceptions or by a certificate of evidence, the facts recited in the decree must be taken to have been found upon sufficient evidence.—Holderman v. Graham, 61 Ill. 359; Davis v. American and Foreign Christian Union, 100 id. 313; Rhoades v. Rhoades, 88 id. 139; Brown v. Miner, 128 id, 148.”

In Richardson v. United States Mortgage Co. 194 Ill. 259, we said (p. 264) : “There is no certificate of evidence in the case; and it is a well settled rule that, where the evidence is not preserved in the record either by a bill of exceptions or by a certificate of evidence, the facts recited in the decree must be taken to have been found upon sufficient evidence.” (See also Knickerbocker v. McKindley Coal Co. 172 Ill. 535).

Inasmuch as there is nd certificate of evidence in this record, and the decree finds that the amount of the debt was due and unpaid, and also finds that the decree was entered by consent, we will presume that there was sufficient evidence, presented upon the hearing below, to justify the chancellor in making these findings. -Where a decree appears from recitals to be assented to, or to be made by consent, it is not necessary that evidence of the consent should be preserved in the record, but the party, disputing the same, should preserve the evidence, on which the recital is based, and then it can be reviewed. (Holderman v. Graham, 61 Ill. 359). It is furthermore settled by the decisions of this court that, where a decree has been rendered by consent, the parties so consenting cannot appeal from such decree, nor assign error upon it. “It is the general doctrine that such a decree is not reversible upon appeal or writ of error, or by bill of review, for error.” (Armstrong v. Cooper, 11 Ill. 540; Knobloch v. Mueller, 123 id. 554; First Nat. Bank v. Illinois Steel Co. 174 id. 140; Bonney v. Lamb, 210 id. 95).

It appears also from the order, entered by the court below on December 23, 1899, approving the master’s report of distribution of the proceeds of the sale, that $961.21 оut of such proceeds were paid to the plaintiff in error, as the balance of the amount realized from the sale of her life estate, after paying off the costs and the amount due upon the mortgage. The receipt of plaintiff in error over her own signature for this sum of $961.21 is attached to the report so approved. “Where a party accepts the benefit of a decree, he cannot afterwards prosecute error to reverse it; such acceptance operates as an estoppel and may be treated as a release of errors.” (Moore v. Williams, 132 Ill. 591; Morgan v. Ladd, 2 Gilm. 414; Thomas v. Negus, id. 700; Holt v. Reid, 46 Ill. 181; Corwin v. Shoup, 76 id. 246). While it is true as a general rule that, in an appellate court, matter, operating as release of errors, must be set up in a plea to the assignment of errors, yet in thе present case such a plea cannot be regarded as necessary, because the plaintiff in error assigns, as one of the errors of which she complains, that the court below erred “in making the order, entered December 23, 1899, approving the proceedings and distribution by the master therein approved.” The assignment' of errors ‍‌‌‌​​​​​​​‌‌​​​​​‌​‌​‌​‌‌‌‌‌‌​​​​​‌​‌‌‌​​‌​‌‌​‌‌‍itself upon its fa,ce brings before this court the order of thе court below, approving the master’s report, which shows that the plaintiff in error accepted the $961.21. The payment of the money to the plaintiff in error, and its acceptance by her, are thus shown upon the face of the record, and attention is called to it by the plaintiff in error in her assignment of errors. The fact of such payment and acceptance could not be more сlearly presented to the court had a plea of a release of errors been filed.

Third—Plaintiff in error claims that the court below had no jurisdiction to entertain the cross-bill. Counsel for the plaintiff in error seem to take it for granted, that the cross-bill was for the purpose of making partition of the premises, and for the purpose of construing the will. It is said that the bill was not properly one for partition, upon the alleged ground that the owner of the life estate cannot ask for a partition as against the owner of the remainder. It is also said that a court of equity will not entertain a bill merely for the construction of a will, where no question of trust is involved. We do not think that the cross-bill was primarily a bill to construe the will, nor can it in any sense be regarded as a bill for the partition of the property. The cross-bill proceeds upon the theory that the property was wet and low and swampy and needed drainage, and that, as the cross-complainants were poor, and had no means, and the plaintiff in error had no means, with which the necessary drainage could be secured, or with which the necessary drainage tax or assessment could be paid, a court of chancery had pоwer to permit a sale of the property to prevent the loss of both the life estate and the remainder. The power of courts of chancery, by virtue of their general jurisdiction over the estates of infants, to authorize the conversion of their real estate into personalty when it is clearly for their interest, is not only supported by the general current of authority in this country, but is settled by the decisions of this court. (Hale v. Hale, 146 Ill. 227; Gorman v. Mullins, 172 id. 349; Whitman v. Fisher, 74 id. 147). The findings of the decree are to the effect that the complainants in the cross-bill were in danger of having their estate sold for taxes and drainage assessments. The construction of the will was incidental to the relief thus sought by the bill. “Where a court of equity has obtained jurisdiction for any purpose, it is empowered to determine all questions that may arise in thе progress of the cause, and do complete justice.” (Harrison v. Owsley, 172 Ill. 629).

We do not deem it necessary to pass any opinion upon the question, whether the allegations of the bill, and the evidence introduced in support thereof as recited in the decree, were sufficient to justify the court in ordering a sale of the estate in remainder, owned by the minors, in order to prevent their propеrty from being lost. The only interest, which this plaintiff in error had in the property; was an interest as life tenant. She is the only party to the suit below, who has sued out the present writ of error. Therefore, she can only complain of that part of the decree, which affects her own interest. So far as the sale of her life estate is concerned, the decree finds, and the finding is conclusive here, that she consented to such sale, and to such sale without redemption. She is, therefore, estopped from complaining of that feature of the decree. She submitted herself to the jurisdiction of the court by filing her consent in writing to the sale, as the decree finds. (Hess v. Voss, 52 Ill. 472; Chicago Dock and Canal Co. v. Kinzic, 93 id. 415).

In Parsons v. Millar, 189 Ill. 107, we said (p. 111) : “The construction of wills in proper cases, falls within a well recognized head of equity jurisdiction. (Whitman v. Fisher, 74 Ill. 147; Longwith v. Riggs, 123 id. 258; Woman's Union Missionary Sociеty v. Mead, 131 id. 338). The jurisdiction of the court in that regard was not challenged in the court below by the plaintiff in error, and such question can not no\v be raised for the first time in this court.—Richards v. Lake Shore and Michigan Southern Railway Co. 124 Ill. 516; Central Elevator Co. v. People, 174 id. 203.” As the plaintiff in error did not challenge the jurisdiction of the court below to entertain this cross-bill, if it be a bill for the construction of the will in question, she cannot rаise the question here for the first time. Whether or not the relief asked by the cross-bill in this case was germane to the subject matter of the original bill is a question which is not discussed and has not been raised by either party, and therefore we pass no opinion upon it.

For the reasons above stated, we are of the opinion that the plaintiff in error ‍‌‌‌​​​​​​​‌‌​​​​​‌​‌​‌​‌‌‌‌‌‌​​​​​‌​‌‌‌​​‌​‌‌​‌‌‍is not entitled to a reversal under the circumstances presented by this record.

Accordingly, the decree of the circuit court is affirmed.

Decree affirmed.