103 Ill. 607 | Ill. | 1882
delivered the opinion of the Court:
This bill was brought by a portion of the heirs of Joshua E. Mather, deceased, against the executor and other heirs, to have the will of the decedent set aside and declared null and void because of the uncertainty of its provisions. Omitting the formal beginning and conclusion, the following is the will as admitted to probate: “After all my debts are paid and discharged, that the residue of my property, both real and personal, shall remain as my estate as long as I have a living child. .The rents, use and interests of my estate, both personal and real, I dispose of as follows: First, to my beloved wife, Maria, I will and bequeath one-third of the net income of my estate, both personal and real, during her life, if she accepts it in lieu of dower. Secondly, I will and bequeath to my children the remaining two-thirds of the net t income of my estate, ”—naming each child,—“during the life of their mother, and after the death of their mother, the whole of the net income of my estate during then lives; and should any of my children die before the time for the final division of my estate, leaving heirs of their body, then their children shall take the share of their parent until the final settlement of my estate, and at the death of my last surviving child my will is that my estáte be equally divided between my grandchildren, they to share and share alike. Should any of my grandchildren die before the final division of my property, leaving heirs of their body, their children to take the share of their parent. I hereby appoint my son-in-law, Jonathan Eoyse, and my son, Asa F. Mather, to be executors of this my last will and testament. ”
There can be no doubt as to what the intention of the testator was concerning the disposition of his property. It was, that all of it, both real and personal, should be kept together as one entire estate—the net income of which, in the meantime, was to go to his children—until the death of his last surviving child, and on the happening of that event his whole estate to be equally divided between his grandchildren, they to share and share alike; and should any of his grandchildren die before the final division of his estate, leaving heirs of their body, their children to take the share of their parent. That this was the intention of the testator is so plainly expressed in simple, terse English words, as to admit of no doubt, and his intention ought not to be defeated by any technical rules concerning the construction of wills, if-it is possible to prevent it without any palpable violation of what are known as rules of property.
It is certain the grandchildren of the testator living at the time of the death of his last surviving child, or the children of such of his grandchildren as shall die before the happening of that event, are to take the remainder of the estate after the determination of the estate ‘ of his own children, whatever that may be. The difficulty in the case lies in ascertaining what estate is devised to the children of the testator. It is said the will is invalid for the reason that, according to its terms, no title to the property left by the testator is to pass to any one so long as he has a living child, as only the net income of his estate is bequeathed to his children during their lives, and hence, it is contended, there is no freehold to keep the seizin for the remainder-men. This, it is thought, is not a correct reading of the will. The law is, and so this court has distinctly ruled in Handberry v. Doolittle, 38 Ill. 202, that a devise of rents and profits will pass the land. In support of this doctrine this court cited Okeden v. Okeden, 1 Atkyns, 552; Hall v. Carter, 2 id. 358; Mills v. Banks, 3 P. Wms. 7: So in this case a devise of the net income of his estate to his wife and children, during their lives, is a devise of the property to them during their lives. It is clear this was the intention of the testator, and without the aid of technical terms applicable to such matters, it is hardly possible that intention could have been more certainly expressed. This construction, it will be seen, conforms to the context. The fact the children of any of his children that should die first should take the share of their parent until the period of the final division of the estate should arrive on the death of the last surviving child ■ of the testator, gives additional strength to the construction adopted. That which was done was a devise of his estate to his children during their lives, and on the death of the last surviving child the remainder to go to his grandchildren, or their children, living at the period of distribution. A particular estate would then vest in his children at the death of the testator,, and it is such an estate in them as will support the remainder in the grandchild to whom it is devised. That being so, the children of the testator took a particular estate which would prevent the estate devised to the grandchildren from-vesting in possession at the death of the testator, and thus it would let in after-born grandchildren. Adopting this construction, the ease is relieved of much difficulty, and effect can be given to the plainly expressed intention of the testator. On this subject the rule of law is, where a will carves out a particular estate which intervenes the death of the testator and the period of distribution of an estate devised to a class, then all persons belonging to such class living at the time the estate is to be divided, are included, notwithstanding some of them may he born after the death of the testator. Under this doctrine, which has for its support the weight of authority, all grandchildren living at the termination of the life estate of the-testator’s children, as well those born after as before his death, will be permitted to share in his estate.
There still remains a question to be considered, not free from difficulty. It is as to the management of the estate until the period of final distribution shall arrive. It would seem to be a reasonable construction, and one that would comport best with what appears to have been the manifest desire of the testator, it should remain in the hands of the executors named to execute the will. It will be observed only the “net income” of the estate is to be enjoyed by the children of the testator, and that will arise from personal as well as real estate, for the estate consists of both real and personal property. Unless this is the meaning of the will, it is not perceived how the personal estate could be preserved for the benefit of the several takers under the will. The devise is to a class, viz., to the children of the testator, and an intention is clearly expressed the estate shall be kept together as the estate of the testator until the period of distribution appointed by the will shall arrive. It is obvious this could only be done by the executors retaining the management, and paying to parties entitled thereto the “net income ” of the estate, whether derived from the personal or real property.
The decree of the circuit court will be affirmed.
Decree affirmed.
