120 Ill. 648 | Ill. | 1887
delivered the opinion of the Court:
The premises described in the contract of sale, for the specific performance of which this bill is filed, are a part of the lands devised to appellee in the codicil of the will of Elizabeth H. S. Allen, his step-mother, and the material question arising, upon which it is necessary for this court to. express an opinion, is the construction and effect to be given to the following clause of the codicil: “I give and bequeath to my step-son, Omar H. Allen, the use or rents accruing from my house, and one acre of land that the said house stands upon, after his father’s decease, provided his father does not sell said property, which privilege I grant him, provided it is necessary for his maintenance. After the said Omar H. Allen’s decease, the said house and land is to go to his nearest heirs.”
4 devise of the income for the use of the devisee, or of the rents and profits of land, “is equivalent to a devise of the land itself, and will carry the legal as well as beneficial interest therein. ” (2 Jarman on Wills, 609, and eases cited.) An estate for life is here devised to Omar, with remainder over' to• “his nearest heirs,” and it is contended that the case is thereby brought within the rule in Shelley’s case. The rule announced in that case as part of the common law, has been in force in this State since its organization.- As originally expressed in the reported case, and also as formulated by Mr. Preston in his work on Estates, (vol. 1, p. 263,) the rule has frequently received the approval of this court, but preference is expressed for the statement of it found in the reported case, viz.: “That where the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, in fee or in tail, ‘the heirs’ are words of limitation of the estate, and not words of purchase. The remainder is immediately executed in possession, in the ancestor so taking the freehold.” 1 Coke’s Rep. 93 b; 1 Preston on Estates, 264; 4 Kent’s Com. *215; Baker v. Scott, 62 Ill. 86; Brislain v. Wilson, 63 id. 173; Beacroft v. Strawn, 67 id. 28.
The conditions which must concur in order to the operation of the rule in case of a devise, are: First, a freehold must be devised; second, the estate of freehold must be taken by the same instrument which contains the limitation to the heirs, and for this purpose a will and codicil will be deemed one instrument, (3 Jarman on Wills, 110;) and third, the interest devised to the ancestor, and limited to the heirs, must be of the same quality. (Baker v. Scott, supra.) Applying these principles to the devise under consideration, it is seen that every condition necessary to the operation of the rule is there fulfilled, unless the prefixing of the word “nearest” to the word “heirs” defeats its application. The rule is, that when the word “heir” or “heirs” is used in a will, and there is nothing in the context explaining or controlling its use, or showing a different intention on the part of the testator, it must be interpreted according to its strict and technical import. Thus construed, the word “heirs” includes and designates the persons upon whom the law would cast the inheritance in case of intestacy, and whether few or many, all are comprehended in the single word “heirs.” 2 Jarman on Wills, 61, note; Rawson et al. v. Rawson et al. 52 Ill. 66.
When there are a number of persons falling within the designation of “heirs,”—that is, having the right to take by inheritance from the ancestor,—although they may not take equally as to amount, the law furnishes no means of determining which one or more of the common class is or are “nearest” in the quality or right of inheritance. The word “nearest,” like “next” or “first, ” prefixed to the term “heirs” or “heir, ” without the use of other words of limitation on the devise to the heir, will'not vary the effect of the devise. The nearest heirs are all those persons upon whom the law would cast the inheritance in the first instance, upon the death of the ancestor intestate, and there can be no other heirs. Those who are heirs are.therefore necessarily nearest heirs, and, conversely, nearest heirs can be no other than heirs generally, and must include all those who stand in the same relation to the ancestor in respect of the right of inheritance. (Jar-man on Wills, 326, and citations.) So that in this case, no effect can be given to the word “nearest, ” as qualifying the term “heirs, ” by virtue of which operation has been given to the rule, or as showing an intention on the part of .the testator to use the term “heirs” or “nearest heirs,” as descriptive merely of some person or persons who should take the estate upon the decease of Omar H. Allen.
It follows, that Omar H. Allen took the fee to the laud subject to the estate and power reserved in Nathan Allen by the terms of the devise. And although, by the codicil, power was given to Nathan, the father of Omar, to sell the land in question, there is no pretence that he exercised the power by sale and conveyance of the premises, unless the deed left by him in escrow, and delivered to Omar after the death of said Nathan, was an execution of the power of sale. If it was a sale and conveyance within the power, Omar acquired title by virtue of the conveyance. But if, as is contended, the making of that deed was not within the power, and for that-reason void, then Omar’s interest and estate were unaffected thereby, and upon the death of his father all precedent estates and conditions, subject to which he took his estate, became extinguished.
We are therefore of opinion, appellee, Omar H. Allen, having title to the premises in fee, could convey such title as he contracted, and that a decree for specific performance was properly entered by the Superior Court.
Decree affirmed.
Mr. Chief Justice Scott, dissenting.
