| Ill. | Jan 15, 1860
It is insisted that the testator has failed to employ language, in this will, which can operate to pass the title to the real estate in controversy, to the devisees. And that, by his death, the property descended to and vested in his heirs-at-law. It is true that this will does'not employ language that would formerly have been regarded as sufficient in a deed, to pass the fee, as no words of perpetuity were used. It simply declares that the residue of his estate, after the payment of his debts, shall be divided between his wife and his nephew, Jerome McKee. Following this, there is no limitation or qualification, except that the executor _shall have power to sell the real estate for the payment of his debts, if. his personal estate proved insufficient' for that purpose. The 13th section of the conveyance act provides, that “ every estate in land, which shall be granted, conveyed or devised to one, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction of law.” It will hardly, be questioned that the testator intended by this will, to confer upon his widow and Jerome McKee, some interest in the residue of his estate, after the payment of his debts, and he must have intended that a portion, at least, of that residue, should consist of real estate, as he, by the will, charges his personal estate as the primary fund for their payment. He did not limit the estate by any express words, nor did he employ language from which a less estate than a fee simple would be implied. It will also be observed that, after requiring the residue of his estate to be divided between the devisees, he creates no remainder or limitation over, of this estate. And the term estate is here used in its largest and most comprehensive sense. It is neither limited to personal or real estate, but evidently was intended to embrace all that should remain, of every description, after the payment of his debts. The language employed manifests an intention to devise the property in fee, or he would surely have either expressly or impliedly declared a different intention.
Even if cases may be found which hold that such a devise would not pass a fee simple estate, they cannot control this case, as it is governed by our statute. This enactment was adopted on the 20th of July, 1837, and was in force at the time of the death of the testator. And, by its provisions, even if they could not have taken a fee in these lands, independent of its provisions, they took a fee simple, subject alone to the power of the executor to sell for the payment of the debts of the testator, after the personal property was exhausted.
But were this not so, and the lieirs-at-law took by descent, his widow inherited one-half of the real estate, and all of the personal property which remained after the payment of the debts. She afterwards, with her husband, conveyed all of her interest in these lands to Jerome McKee, the other devisee named in the will, and the executor, the only brother, and the other heir of the testator, as executor of the will, conveyed all of this estate to Jerome McKee, for the payment of the debts of the estate. The deed recites, that on the settlement of the estate, it was found to be indebted to the executor in the sum of twenty-four hundred dollars, which was the consideration of the conveyance. It in no wise affected the validity of the sale, that the executor took a bond for the payment of the purchase money, and reserved the power to sell the property for its payment. By the conveyance, in the exercise of the power given by the will, the title passed to the grantee, Jerome McKee. This power to sell under the will seems to have been well executed, and passed the title to the purchaser, if it had not already vested by the terms of the will. Then, whether he took one-half of the estate as devisee, and the other half as purchaser from his co-devisee, or by purchase from the executor, under the power contained in the will, can make no difference, as in either case he was the owner of the property in fee, at the time of his death.
Having died, however, before the decree was rendered for the sale of the property to pay Vansyckel & McConnel’s claim, and neither he, nor his posthumous heir, having been a party to that proceeding, it is urged, by defendants in error, that no title passed by the sale of the property under that decree. On the other hand, it is insisted, that by the death of Jerome McKee, the title vested in his heirs, then in being, until the posthumous heir was born, and that the decree for the sale of this property, having passed before that event occurred, that it became a lien upon the property, that could not be defeated by the birth of this posthumous child, the heirs then having the title having been made parties to that proceeding. And we are asked to review the decision of this question, which was determined when it was formerly before the court, in the case of Detrick v. Migatt, 19 Ill. R. 146. In that case it was held, that a posthumous child took directly from the parent, and with the same effect, as though in being at the death of the parent, and that the estate must remain, during the period between the death' of the parent and the birth of the child, in abeyance. This conclusion was arrived at, upon the construction of the statute. The court then held, that it necessarily results, that the posthumous child, .taking the estate immediately from the parent, as though born in the lifetime of the parent, and not having been a party to the proceeding in which the decree was rendered, that his rights remained unaffected by it.
Whatever might have been our inclinations, had this question now come before us for the first time for determination, we are not now inclined to disturb that decision. The value of real estate depends so essentially upon permanency of titles, that nothing short of a strong necessity should ever induce courts to change a rule of property. When sales are made, and covenants entered into, on the faith of the decisions of courts of last resort, the change of the rule, unless it is manifestly wrong, and is calculated to work great injustice, should not be made. In this case, no such necessity is apparent, and we are therefore disposed to adhere to the rule as laid down in' that case. And we must hold, that to divest the title of this property out of this heir, he should have been made a party to that proceeding, and not having been, the decree is no more binding upon him, than upon any other stranger to it. This being the case, the parties in interest have no power now, to file a bill of revivor, and thereby make him a party to the decree, so as to divest his title, nunc pro tunc. He was a necessary party to that proceeding, and while he was not, to the allowance of the claim in the probate court, upon which the decree was based, yet when the application was made to sell his land to satisfy that claim, he had the right, before the decree passed, to show that it was not properly allowed against the estate, its allowance being, as against him, only prima facie binding. Stone v. Wood, 16 Ill. R. 177; Hopkins v. Mc Cann, 19 Ill. R. 113.
The question of whether the parties in interest may revive that proceeding against him, and subject this property to sale in satisfaction of that decree, unless it were impeached, is not before us for determination. The bill in this case is not framed with a view to such relief, nor was evidence taken for a hearing upon that question. We therefore decline, at this time, to determine whether the purchasers under the sale of Jerome McKee, administrator, took the property freed from Vansyckel & McConnel’s claim against the estate of Jesse McKee. And even had the frame of the bill, and the evidence in the case, presented that question, Vansyckel would be a necessary party, before a hearing could be had.
It is also urged, that the evidence in this case fails to show, that Jerome McKee is the posthumous heir of Jerome, deceased. This fact is abundantly proved by the depositions of Scoby and Brown, previously taken, to be read in evidence in the ejectment suits, to enjoin which this proceeding was instituted. They were taken in suits between the same parties, where the same property was involved, and this question was in dispute. These depositions were admissible as evidence under the rule laid down in the case of Wade v. King, 19 Ill. R. 301.
But when the court dismissed the bill, the answer and other pleadings in the case shared the same fate. Chancery practice does not authorize the court to retain an answer after dismissing the bill, and even if it did, specific relief cannot be decreed on the defendant’s answer. Where the defendant’s case entitles him to such relief, to render it availing, he must file his cross-bill, properly framed to meet his case, and this is the case whether the complainant’s bill be retained or dismissed. This has been repeatedly held by this court, and is regarded as the settled practice. The decree of the court below, finding the title in the'defendants, and decreeing the surrender of the possession of the premises to them, being specific relief, was erroneous, and unauthorized by the pleadings. The decree of the court must therefore be affirmed, so far as it dismissed the complainants’ bill, and decreed the payment of the costs of that court by them, but is reversed in all other respects, and the defendants will pay the costs of this court.
Decree modified.