47 N.E.2d 714 | Ill. | 1943
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *530 Appellants filed a complaint in the circuit court of Macon county seeking partition of certain real estate therein described. On motions of the appellees the complaint was dismissed as not stating a cause of action.
Whether the chancellor was right in dismissing the appellants' complaint is to be determined by a construction of clause seven of the will of James S. Parker, who died May 8, 1880, leaving a substantial amount of real estate. He was survived by his widow and five children, three sons and two daughters. Lydia E., the youngest, was unmarried, the rest were married at the time of making the will. After leaving a life estate to his widow, he devised certain lands to each of his five children; to the sons he devised the lands in fee; to his married daughter, Sarah J. *531 Stoutenborough, he gave a life estate with remainder to her children who survived her, subject to a life estate also in her husband if he survived Sarah. The widow died in 1899. Sarah died intestate in 1894, survived by three sons, Charles W., John S., and James P. Stoutenborough.
To Lydia E. the testator, by the seventh clause, devised the farm lands involved in this suit, and a homestead in Maroa, Illinois. To this devise there was attached this provision: "I further desire and give devise and grant all the real estate named in this item to pass vest in the children of the said Lydia E. Parker if any who may survive her after her death, should the said Lydia E. Parker die leaving no children surviving her then it is my will that the title to the real estate named in this item to vest in fee simple in the brothers sisters and their heirs, of her the said Lydia E. Parker who may survive her."
In December, 1899, the three sons of the testator and the three sons of the deceased daughter Sarah, quitclaimed to Lydia E., (then Lydia E. Bates, she having married,) all of their interest in the farm lands and the Maroa property devised to Lydia for life. All were adults and their respective spouses joined in the conveyance. Lydia thereafter conveyed a railroad right of way; also conveyed a strip to the State for a highway, and granted an easement for an electric transmission line. She died in 1941, having outlived her father by more than sixty years. She left no surviving issue. Her three brothers and her sister had all died. She made a will by which she devised the farm lands to trustees to convert into cash and pay the proceeds to the Trustees of the University of Illinois to establish a foundation or charitable trust, to be known as "The Lydia E. Parker Bates Fund for the Advancement of Fine Arts."
Appellants say first that they, by the language of the will, were designated together with Lydia's brothers and sister as the particular persons who were to succeed to *532 the title in case she left no child surviving; that the words "and their heirs" were words of purchase and not of limitation, and that as children and heirs of the brothers and sister of Lydia they are entitled to this property; and, second, if this be not true, then, since none of the brothers or sister survived Lydia, the remainders that were to have gone to them on the contingency of survival, remained in the estate of the testator, and never having been divested, they, as heirs of the testator, are entitled to at least a one-fifth interest in the land because the contingent remainders were not destroyed or released by the conveyances made by their ancestors. In other words, it is urged that both aspects of the contingent remainder created by the seventh clause of the will having failed, and the words "their heirs" having been used as words of purchase, the title to the land thus described vested in appellants immediately upon the death of Lydia, the life tenant.
A rule governing the construction of wills is that the intention of the testator, as expressed in and gathered from the four corners of his will, controls, unless some rule of law is violated. (Leary v. Kerber,
The rule commonly known as the rule in Shelley's case, is that where an ancestor takes an estate of freehold and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, either in fee or in fee tail, the word "heirs" is a word of limitation of the estate granted and not a word of purchase. This is a rule of law and not one of construction of the will or intent of the testator. This rule is firmly fixed in this State. (Lord v. Comstock,
Appellants' counsel concede the rule is in force in this State but contend that it does not apply to contingent remainders and therefore it does not apply to the devise under the will before us. They cite in support of that position Gehlbach v. Briegel,
In Boon v. Boon,
The rule in Shelley's case is in force in this State and applies to the limitation of a remainder to heirs generally.(Cook v. Sober,
In this case counsel for appellants say that the language of the will is sufficient to show that the rule in Shelley's case could not apply. They say that the language "the title to the real estate named in this item to vest in fee simple in the brothers sisters and their heirs, of her the *536 said Lydia E. Parker who may survive her," shows that there was described not the estate devised but the particular persons who were to take, and that this was a contingent gift over to a class composed not only of the brothers and sister but also of their heirs, which class was to be determined at the date of the death of Lydia. Counsel cite no authority for the position that an ancestor and his heirs can, without more, constitute a class of purchasers. Nor are we able to see how both could be said to take at the same time. No one has heirs during lifetime. If one takes in substitution for the other, there can be no class. It will be remembered that here a contingency is imposed whether anyone shall take. That contingency is that he survive the life tenant. If he does not survive neither he nor his heirs can be said to take.
It is also clear that in referring to those who are to take on condition that they survive Lydia, the testator was referring to Lydia's brothers and sister. The language clearly so shows. The words "of her the said Lydia E. Parker who may survive her," clearly refer to the brothers and sister "of her" the said Lydia E. Parker. They were the ones who were to survive in order to take. The word "who" refers to the brothers and sister and not the heirs, because the heirs are not described as heirs "of her the said Lydia E. Parker," and they were not her heirs. It seems clear that the words "who survive Lydia," refer to the brothers and sister who had to survive to take. Since this is true, those, if any, who did survive, took the fee because the devise was to them and their heirs. If the brothers or the sister did not survive Lydia, they took nothing, and therefore their heirs took nothing. It is clear from the language of the will that the words "and their heirs" were used to designate those who were to take in succession from generation to generation from the brothers and sister and not to designate a class of persons to take an estate different from what the law would have cast upon them *537 as heirs, and so the limitation to the heirs was used in the technical sense. The will contains no language that tends to indicate an intention that anyone other than the brothers and sister of the life tenant who survived her should take on her death. It follows that the words "and their heirs" are words of limitation and not of purchase and the rule in Shelley's case applies.
The will contains no specific devise of the remainder, to vest in case the contingent remainders should fail, and so the reversion in fee descended to the heirs-at-law of the testator as intestate property, not to those who were heirs-at-law at the time of the death of the life tenant but those who were the heirs-at-law at the time of the testator's death. Harrison v.Weatherby,
In the residuary clause of the will before us the residuary devisees and legatees were the same as the testator's heirs-at-law, hence it is unnecessary to determine the effect of the residuary clause upon the fee in the land before us. The reversion in fee, upon the death of the testator, vested in his heirs-at-law at the time of his death, to await the happening of the contingency, and the interest of each of his heirs-at-law would pass to his or her assigns subject to being divested if the contingency should happen. (Peterson v. Jackson,
The decree sustaining appellees' motions and dismissing appellants' suit for want of equity was right and is affirmed.
Decree affirmed. *538