| Ill. | Feb 21, 1906
delivered the opinion of the court:
The only question in this case is whether or not the widow of John Michael Rupprecht, Sibila Barbara Rupprecht, took under her husband’s will an estate in fee simple, which upon her death would descend to the heirs-at-law, or whether, by a proper construction of that will, she took a life estate, the remainder being vested in appellants. This question depends upon whether or not the rule in Shelly’s case is applicable to the second clause of the will. It will be observed that the language of that clause is: “I give, devise, etc., to my beloved wife, Sibila Barbara Rupprecht, to hold and to have to her, my wife, and to her heirs and assigns forever.” Under the repeated decisions of this court, unless it can be said that the words “her heirs and assigns forever” are to be given some limited or qualified meaning,—i. <?., that they are not used in their strict legal sense,—the rule applies and the fee simple title under it vested in the widow. In Vangieson v. Henderson, 150 Ill. 119" date_filed="1894-04-02" court="Ill." case_name="Vangieson v. Henderson">150 Ill. 119, the will provided, “after the death of my wife, as aforesaid, I give, devise and bequeath unto my beloved daughter, Nora A. Vangieson, during her natural life, and after her death to descend and vest in her legal heirs, thirty-five acres,” (describing the land,) and we held that the daughter took the title to the land in fee, the rule being, that whenever the ancestor takes an estate of freehold, and in the same gift, or conveyance an estate is limited, either immediately or mediately, to his heirs, either in fee or in tail, the word “heirs” is one of limitation of the estate and not of purchase, and the- ancestor takes the fee. The word “heirs,” being used in the general legal sense, is, under the rule, one of limitation, and no intention of the testator, however clearly expressed, can change it into a word of purchase. (Wolfer v. Hemmer, 144 Ill. 554" date_filed="1893-03-31" court="Ill." case_name="Wolfer v. Hemmer">144 Ill. 554; Silva v. Hopkinson, 158 id. 386; Deemer v. Kessinger, 206 id. 57.) Many other cases will be found in our Reports to the same effect.
Counsel for appellants concede, as we understand them, that this is the law of Illinois, but they seek to distinguish the present case from those cases which have been heretofore decided, upon the ground that no intermediate estate is created by this will,—that is, that the second clause does not vest a freehold estate in the wife and the fee in her heirs, which is necessary under the rule; in other words, they say there is here no intermediate estate. While this clause does not, in any express language, vest a life estate in the widow, such is the clear legal effect of it. In Carpenter v. VanOlinder, 127 Ill. 42" date_filed="1889-01-25" court="Ill." case_name="Carpenter v. Van Olinder">127 Ill. 42, speaking of the application of the rule, we said, quoting with approval from Preston in his work on Estates (vol. 1, p. 281) : “Neither the express declaration, first, that the ancestor shall have an estate for his life and no longer, * * * nor, thirdly, that the ancestor shall be tenant for his life and no longer, * * * will change the word ‘heirs’ into a word of purchase.”
In Hageman v. Hageman, 129 Ill. 164" date_filed="1889-06-15" court="Ill." case_name="Hageman v. Hageman">129 Ill. 164, where the language of the will was, “I give and devise unto my sons, Frederick C. Hageman, George W. Hageman, Franklin J. Hageman and Louis B. Hageman, lots 10,” etc., but they “shall neither of them sell or mortgage any of the. lots above mentioned, but the same shall go to their heirs after them,” it was said: “The question presented is whether, under this language of the will, the complainants, sons of the testator, took an estate for life in the lots devised or took the estate in fee,” and we held that they took a fee simple estate, and again quoted from Preston on Estates, as follows: “In wills, the rule applies generally and without exception to the several limitations as often as the gift to the heirs is without any expression of qualification, and that neither the express declaration, first, that the ancestor shall have an estate for his life and no longer; nor, secondly, that he shall have only an estate for life in the premises, and that after his decease it shall go to the heirs of his body, and in default of such heirs vest in the person next in remainder, and that the ancestor shall have no power to defeat the intention of the testator; .nor, thirdly, that the ancestor shall be tenant for his life and no longer, and that it shall not be in his power to sell, dispose or make way with any part of the premises, * * * will change the word ‘heirs’ into a word of purchase.” And we further said: “The rule in Shelly’s case is a rule of property in this State, (Baker v. Scott, 62 Ill. 86" date_filed="1871-09-15" court="Ill." case_name="Baker v. Scott">62 Ill. 86; Ryan v. Allen, 120 id. 648;) and its application to the particular case depends not upon the quantity of estate intended to be given to the ancestor, but upon the estate devised to the heir. When the devise is to heirs generally, the rule applies and is held to conclusively express the intention of the testator, and will necessarily govern and control in determining the estate devised, notwithstanding the expression of an intention on the part of the testator that the ancestor shall take a less estate than the fee. The devise, here, must therefore be treated as if it were to the sons of the testator and their heirs, without qualification, in which event it is clear the sons would take the fee in the estate devised.—See Carpenter v. VanOlinder, supra.”
In Deemer v. Kessinger, supra, among the latest expressions of this court on the application of the rule, we said that “manifestly, under the provision contained in the will, ‘to my son William L. Deemer, and to his lawful heirs,’ William took a freehold estate, and the estate was limited immediately to his lawful heirs in fee, which fulfilled every requirement of the rule and vested the fee simple title in William L. Deemer. By the terms of the codicil William L. Deemer is given the ‘use, benefit and control’ of the premises ‘during his lifetime,’ the effect of which was to vest an estate of freehold in him, and at his death the fee is given to his lawful heirs. In legal effect the devise to William L. Deemer contained in the codicil and that contained in.the will are the same,—that is to say, a freehold estate by each of said provisions is given to William L. Deemer and an estate in fee is limited immediately to his lawful heirs, and the fee to the premises, under the codicil as well as under the will, vested in William L. Deemer.” And so, if the position of counsel "for appellants is tenable that the rule has application only where, by the express .language, of the testator, a freehold es-fate is created in the ancestor, many of our former decisions would have to be overruled.
Nor do we think there is any reasonable ground for saying that the word “heirs” is not used in the second clause of this will in its legal sense; and it is too well settled to be longer a matter of discussion in this State that where the rule applies, the subsequent expressed intention of the testator to the contrary can have no effect. Nor do we think there is any such inherent evidence of ignorance of the law in the draft of this will as to render it of uncertain or doubtful interpretation.
Our conclusion is that the circuit court properly held the rule in Shelly’s case applicable to the second clause of this will.
Nor are we disposed to disturb the finding and decree of the court on the assignment of cross-errors as to the allowance of the solicitor’s fee to counsel for appellants.
We think the decree of the circuit court is in conformity with the law and facts of the case, and it will accordingly be affirmed-
Decree affirmed.