245 Ill. 483 | Ill. | 1910
delivered the opinion of the court:
On October 2, 1902, James A. Teel, of Schuyler county, died leaving a last will and testament executed by him on February 13, 1902, which was admitted to probate, and leaving Elizabeth Teel, his widow, and Neosha M. Mills, Herschel V. Teel, Walter H. Teel and Marshall E. Teel his children and heirs-at-law. When the will was made and at the death of the testator Neosha M. Mills was married and had three children. Herschel V. Teel and Walter H. Teel were married but had no children, and Marshall E. Teel was unmarried. By the will the testator gave to his widow, Elizabeth Teel, her dower as at law in his real estate, with the possession and use of his homestead during her life and his personal estate after the payment of debts, costs of administration, legacies and bequests for her life, with a gift over at her death of whatever personal property might remain, to his children in equal parts. By the third paragraph he devised to his son Herschel V. Teel certain lands described therein and the remainder after the life estate in the homestead, and a sum of money. By the fourth paragraph he devised to his son Marshall E. Teel 360 acres of land, which afterward became the subject of litigation under the will, and also certain bank stock and money. By the fifth paragraph he devised to his son Walter H. Teel certain lands therein described. By the sixth paragraph he devised to his daughter, Neosha M. Mills, for and during her natural life, certain described lands, with remainder in fee simple to the child or children of said Neosha M. Mills living* at the time of her decease, in equal parts and proportions, and if any child of hers should be dead leaving a child or children then living, such child or children were to take the same proportion thereof as the parent would if living. The seventh paragraph was as follows':
“Seventh—If any or either of my aforesaid children shall die leaving no child or children or descendant or descendants of such child or children living at the time of his, her or their decease, then and in that case I hereby give and devise all the real estate so above given to him, her or them to the others and remaining children or child not so dying, in equal proportions, in fee simple in remainder forever.”
The testator stated in the ninth paragraph that he had used his best endeavor, in valuing the real estate, to malee the division and distribution thereof equal among his children, and felt that he had succeeded -therein as far as practicable.
After the death of the testator the son Marshall E. Teel married, and he died about December 23, 1908, leaving Nyna Teel, his widow, but leaving no child or children or descendant. On - February 10, 1909, Neosha M. Mills filed her bill in the circuit court of Schuyler county against her brothers, Walter H. Teel and Herschel V. Teel, her mother, Elizabeth Teel, the widow of the testator, and the three children of the complainant, Ruth Mills, Teel Mills and Theodore R. Mills, praying for partition of the lands devised to Marshall E. Teel, and claiming that by his death without issue the title to said lands became vested in fee simple in her and her two brothers, subject to the dower of Elizabeth Teel. Nyna Teel answered, averring that her husband became the owner in fee simple of said lands subject only to the dower of his mother, Elizabeth Teel; denying that the lands had passed by executory devise to the complainant and her brothers, and claiming that they had descended to her and the other heirs-at-law subject to the dower of the widow of the testator. Herschel V. Teel and Walter H. Teel by their answers denied that Marshall E. Teel had a base or determinable fee under the will, but alleged that he took the fee simple title which had descended to his heirs subject to the dower of Elizabeth Teel and the dower rights of his widow. Elizabeth Teel answered claiming a quarter section of the land, and the infant children of complainant answered by their guardian ad litem. The cause was heard by the chancellor, who found and decreed in accordance with the bill and ordered partition accordingly. The defendant Nyna Teel sued out a writ of error to review the decree and joined the other defendants with her as plaintiffs in error. She alone assigned error, and the others were brought into court by service of process or publication. Through an erroneous entry of the clerk the cause was taken under advisement, but upon discovering that only one of the plaintiffs in error had assigned error and that there had been no severance, the order taking the case under advisement was set aside. (Mills v. Teel, 244 Ill. 39.) An order of severance was afterward entered, and the plaintiff in error Nyna Teel was permitted to prosecute the writ of error alone.
By the third, fourth and fifth paragraphs of the will the testator devised in fee simple certain lands in severalty to his three sons, and by the sixth he devised other lands to the complainant for her natural life, with remainder to her children or their descendants. By the seventh paragraph he attempted to cut down the estates devised in the previous paragraphs from estates in fee simple to base or determinable fees, and provided that they were to go over by executory devise under the conditions therein specified. That paragraph is the subject of contention between the parties and their rights depend upon its construction and validity.
The purpose of construction is to ascertain the intention of the testator, in order that, if possible, it may be given effect. But that intention must be ascertained from the words employed by him in the light of his situation and the attending circumstances. If by such means the intention becomes clear and apparent, the court may disregard false words of description or restrict the application of words, but cannot change words of plain meaning and substitute something else. In such construction the law favors the heir, and will give a fee simple to the first devisee unless limiting and qualifying words clearly disclose a contrary intention. (Becker v. Becker, 206 Ill. 53; Kohtz v. Eldred, 208 id. 60.) Unless there is a valid executory devise by the seventh paragraph, the devise in fee simple to Marshall E. Teel by the third paragraph was not affected. The condition fixed by the testator upon which an executory devise was to take effect was that any or either of his children previously mentioned should die leaving no child or children or descendant or descendants of such child or children living at the time of his, her or their decease, and upon the happening of that event the estate devised to such child was to go over to the other and remaining children or child not so dying. The plain and natural meaning of these words descriptive of the executory devisees is, that they should be children of the testator not dying in like manner or under the same circumstances as the deceased child,—i. e., leaving no child or children of descendant or descendants living at the time of their decease. (Webster’s Int. Diet.; Standard Diet.) The executory devise is not to the other children or the survivors, but to those “not so dying,”—or, in other words, to those dying leaving a child or children or descendants. If the words are given their literal meaning there is no person, and will be none, who can take under the seventh paragraph, since no living person can fulfill the description. According to that meaning the executory devise cannot vest until the death of all the children, when it can be determined whether they died leaving a child or children or descendants.
The argument for the defendant in error is, that the words "not so dying” can be transposed so as to read “not having so died” without materially changing their meaning, and that such transposition ought to be made. That, however, would not relieve the situation of its difficulties but would rather tend to frustrate and defeat the conceded intention, of the testator. The general scheme for the disposition of his property was to keep the title in his children and lineal descendants. The devise to Neosha M. Mills was for her life with remainder to her children, and in case of the death of one of her children leaving a child or children such child or children were to take the share of the parent. If she left no child or descendants living at her decease, or if either of the sons should die leaving no child or children or descendant or descendants, the purpose of the seventh paragraph was to bring the estate back into the line of descent. It would not be in accordance with that intention to give the share of one dying without issue to others without issue, by which it would go, in the end, to collateral heirs. The testator left four children, only one of whom, the complainant, Neosha M. Mills, had children. If she should die leaving children and one of her brothers should afterward die without issue, then, under the construction contended for in her behalf, her children, who are lineal descendants of the testator, could not take a share of the lands of the one dying without issue, not being children of the testator nor within the statute preserving devises to lineal descendants where a devisee dies before the testator. She could not take because she would not be living and would not answer the description “not having so died,” because at her death she left issue. The remaining sons who are without issue would take, and by successive deaths the greater part of the estate might finally pass to collateral heirs. Considering the intention of the testator, it would be a strange proposition that lands should go, upon the decease of a devisee without issue, in fee simple in remainder forever, to a devisee who had no issue, when he holds the lands directly devised to him subject to a devise over in default of issue. There is no method consistent with the intention of the testator by which the words used can be given any other than their natural and literal meaning.
We conclude that the executory devise attempted by the seventh paragraph is ineffective and insufficient to restrain or limit the generality of the devises in the previous paragraphs of the will. The Statute of Descent has provided a definite succession of real estate, which can only be superseded by a valid disposition different therefrom, and as the seventh paragraph cannot be given effect, Marshall E. Teel was the owner in fee simple of the lands in question, and they descended to his heirs-at-law according to the statute.
The decree is reversed and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.
„ , , , , Reversed, and remanded.
