177 Ill. 208 | Ill. | 1898
delivered the opinion of the court:
The intention of the testator clearly appears. It was, the exclusive possession and control of and entire estate in the premises, and in the personal property used in connection therewith, which together constituted the “Oak Lawn Retreat,” should vest in the plaintiff in error, his wife, M. E. McFarland, and his daughter, Anna H. McFarland, to be held and enjoyed by them indefinitely, unless they, or some two of them, should desire to relinquish and terminate their right and estate therein, and should signify such desire by a written instrument signed by at least two of them.
This devise was, we think, properly construed by the chancellor to pass an estate in fee, determinable only by the action of at least two of the devisees in the manner specified in the will. Words of limitation or inheritance are wanting, but our statute has made the addition of such words unnecessary “if an estate less than a fee” be not limited by express words, or does not appear to have been granted, conveyed or devised by construction or operation of law. (Rev. Stat. chap. 30, sec. 13.) The spirit of this statute and the policy of our law is to adopt that construction of a devise which will facilitate the alienation of property,, if such meaning may fairly be gathered from the instrument. (Lister v. Sheppard, 85 Ill. 242; Giles v. Anslow, 128 id. 187.) “If the terms of a devise clearly indicate an intention in the devisor to dispose of his entire estate in the property devised, it will be construed to convey a fee.” (3 Washburn on Real Prop. —5th ed.—563.) In Schouler on Wills (p. 592) it is said: “Whenever, expressly or by implication, the will shows the purpose to give one’s property in fee simple, that purpose shall prevail.”
The payment of the total sum of $1500 to Mrs. Flack is made a personal charge upon the devisees in the event they accept the devise. At common law, though a devise contained no words of limitation or inheritance, it was implied to confer a fee if the payment of a debt or legacy was charged upon the devisee personally. Funk v. Eggleston, 92 Ill. 515; McClelland v. Turner, 15 Me. 436; Varner v. Stevens, 22 id. 331; Harvey v. Olmstead, 1 N. Y. 483; Snyder v. Nesbeth, 77 Md. 576.
It is undeniable the devisees, including the plaintiff in error, construed the devise to invest them with an estate in fee. The plaintiff in error conveyed all his right, title and interest to his wife, and after her death accepted from her heirs a conveyance purporting to convey him an equal undivided one-third interest in the premises. This is consistent with the construction we are disposed to give to the devise, and entirely inconsistent with the insistence in the briefs of counsel for the plaintiff in error that the fee simple title to the premises descended to all the heirs-at-law of the testator. It is clear the testator did not contemplate Oak Lawn Retreat should descend to his heirs-at-law in any contingency. He desired the plaintiff in error, his wife and their daughter should own and operate it as an asylum for insane persons, as he had done, and should pay Mrs. Flack, his daughter, the sums provided in the will, and should care for T. Fletcher and Harriet N. McFarland while they should live, and should pay each of them $100 per annum. In case the plaintiff in error, his wife and daughter should decline to accept the devise, or, having accepted, should not desire to continue to operate the “Retreat” for the purpose he had prepared it, the testator intended the institution should be sold and the proceeds distributed equally among certain persons whom he designated in his will to receive the same. Two' of such designated distributees were not heirs of the testator, and Mrs. Flack, who was his daughter and legal heir, was not included among them.
It is argued the theory of the decree is the “Retreat” is not being conducted as the testator designed, and that if such is the case it should be ordered sold, as contemplated by the will. The will, if we have correctly interpreted it, vested in the plaintiff in error, his wife, M. E. McFarland, and their daughter, Anna H. McFarland, (now Cromwell,) an estate in fee, determinable, without the aid of a conveyance, by said devisees, or any two of them, signing" a written instrument requesting the estate be sold and the proceeds divided as the will, in such event, designated. One of the devisees is dead; the other two have not signed such a written instrument. The fact the surviving devisees have disagreed as to the management and control of the “Retreat” and are not conducting it as the testator desired, cannot be substituted for that which the testator required should be done in order to terminate the estate created by the will. In making disposition of this property the testator anticipated the devisees might desire to determine their estate in the “Retreat,” and he provided a mode and manner in which they might accomplish such desire. When a devise is subject to be divested upon the happening of a certain specified contingency, courts will not accept another contingency as the equivalent of that named by the testator, but will only divest the estate when the contingency takes place literally. Illinois Land and Loan Co. v. Bonner, 75 Ill. 315.
It may be that the testator in the case at bar was not, when writing his will, mindful of the fact one or more of the devisees might die, and that had this occurred to him he would have provided that a disagreement between the two remaining devisees, and their failure to continue the management and control of the “Retreat,” would determine their estate and authorize the sale of the property by the executors. Courts cannot, however, determine, by mere conjecture, that the testator omitted from his will provisions that he would have incorporated if he had not overlooked probable future occurrences, and undertake to rectify such omission, for to do so would be to incorporate, by construction, a new clause in the will. This would not only be contrary to the will as made, but would be making a new will. Illinois Land and Loan Co. v. Bonner, supra.
The provisions of the decree preserving a lien in favor of T. Fletcher and Harriet N. McFarland cannot be made the basis of- well-grounded objection on the part of the plaintiff in error. As to him, the establishment of such a lien is eminently just and equitable. The effect is to postpone to these liens the liens in favor of the Security Savings, Building and Loan Association, the administratrix of the estate of M. E. McFarland, and of the defendants in error Anna H. Cromwell and Marie B. Griffith. But the parties whose liens are so postponed do not object, and the plaintiff in error cannot be allowed to object for them.
Counsel for plaintiff in error remarks, in his brief, that proper testimony tending to support the cross-bill was rejected by the court, but does not indicate to what particular testimony the remark applies. Nor does the abstract disclose that objections were made and exceptions saved to any ruling of the court as to the admissibility of testimony, save one. A witness in behalf of the plaintiff in error, as complainant in the cross-bill, was asked if the “Oak Lawn Retreat” was “being.carried on as provided by the will of Andrew McFarland,” but the court ruled the question should not be answered. It was clearly improper. It called upon the witness to construe the will, and to give, as a conclusion, merely, whether the manner in which the institution was being conducted was that which the will required.
The cross-bill was not supported by the proofs as to the allegation the complainant therein was the owner of the lien decreed to his daughters, and the relief prayed by the cross-bill was upon the theory the title to the “Retreat” was in the heirs of the testator, which, as we have seen, is not the true view of the case. The cross-bill was properly dismissed.
The decree is affirmed.
„ „ 7 Decree affirmed.