191 N.E. 68 | Ill. | 1934
This is a review upon certiorari of a judgment of the Appellate Court for the Third District which reversed a judgment of the circuit court of Scott county in a proceeding in forcible entry and detainer. *560
The questions of fact and law out of which the controversy arises are as follows: On October 29, 1929, Robert McCarty, late of Scott county, departed this life leaving a last will and testament. The only portion material to this litigation is the third clause, in the following words:
"Third — It is my will and I so direct that my executor hereinafter named sell all of my real estate within three years after my death, at public or private sale, as he may see fit, and in either case I give him full power to make a deed or deeds to the purchaser or purchasers, to vest a good title in either, and the proceeds of such sale after the payment and expenses of the sale to be equally divided between my children then living share and share alike," etc.
When the testator died, the defendant in error, Clyde McCarty, was in possession of the land in controversy under a lease for one year ending on March 1, 1930. He continued to hold possession, and in November, 1931, the plaintiff in error, as executor of the last will and testament of Robert McCarty, deceased, served a notice on the. defendant in error to terminate his tenancy and deliver up possession on or before March 1, 1932. Possession continuing to be refused after March 1, 1932, this proceeding in forcible entry and detainer was commenced and finally resulted in a judgment in favor of the plaintiff in the circuit court.
The question presented to us is only the narrow one of whether or not the plaintiff in error, as executor of the last will and testament of Robert McCarty, is entitled to the possession of the real estate of the deceased. It must be conceded that under our prior decisions the right of possession is not in the executor unless given to him either expressly or by necessary intendment in or from the terms of the will. Although it is clear that the express words of this will do not give the executor any power over rents or profits or any right to possession, it is argued by plaintiff *561
in error that such control and right of possession are given by necessary implication. He relies principally upon four cases. The first case relied upon is that of Mather v. Mather,
In the case of Emmerson v. Merritt,
There is no ambiguity apparent from the language of this will and its meaning is plain. It is not necessary that the executor should take either a fee simple title or a right of possession, and the rule is that an executor or trustee will take only such title and right under the will as may be necessary for the performance of his duties. Lawson v. Illinois Merchants TrustCo.
It follows from the authorities above pointed out that the executor in this case had neither title nor right of possession, and was therefore not entitled to recover in the forcible entry and detainer suit brought by him.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Mr. JUSTICE STONE, dissenting. *563