244 Ill. 138 | Ill. | 1910
delivered the opinion of the court:
Appellants claim, and that is the theory of the bill, that upon the death of James Clark Stafford and his two sisters, leaving no issue surviving them, the title vested in appellants as the only heirs of the six children named in the will of Thomas Stafford, deceased, as intended to share equally in his property. This involves a construction of a portion of the will of said Thomas Stafford.
The six children of the testator first mentioned in the will, and Lewis Brown and George Washington, if they elected to share equally with the six, were required to make certain payments to the executors for the benefit of certain parties named. Among said payments was $200 to be invested in land for James Clark Stafford and the brothers and sisters he had or might have. That provision of the will reads as follows: "Two hundred dollars to be laid out in land for my grandchild James Clark Stafford and the brothers and sisters which he has or may hereafter have, all to share equally. * * * I also direct that the shares of my daughters, if they die without children, descend to their surviving sisters or their descendants, if they have any. If my grandson James Clark Stafford, and his brothers and sisters which he has or may have, shall die without issue, then the said land to revert to the said children before named and their heirs.” The construction of this language contended for by appellants is, that the fee in the land purchased with the $200 and conveyed to James Clark Stafford and his sisters could only vest in the children that survived them, and as none of them left children surviving, the property, under the will of Thomas • Stafford, went to them as the only heirs of the six children mentioned in the will. Appellees contend that under the will of Thomas Stafford the fee vested in the issue born to Ann Maria, and that upon the death of such issue before her death she inherited the fee from them. The important question to be determined, then, is whether the language “shall die without issue” should be construed to mean should die without ever having had issue or without issue surviving.
Few subjects in the law have been before the courts of the country of tener than the construction of the words “die without issue,” “die without heirs of the body,” or “die without issue of the body,” used in wills, and few questions have resulted in a greater conflict in the decisions of the various courts of the country. Whatever the rule may be in England, such words in wills have not been given in this country a technical, judicial meaning. The contrariety of views expressed by different courts upon the subject has given rise to the enactment in a number of States of statutes defining the meaning to be given to such words.
It is universally held by the courts that in construing wills, effect should be given to the intention of the testator if it can be gathered from all the provisions of the will and is not in violation of any rule of law. The difficulty arises in determining what the testator meant by a limitation over if the first taker “die without issue.” We believe there is an entire harmony of decisions that if it appears clear, from the entire will, that the testator intended the limitation over to take effect only in case the first taker died without issue surviving him, that intention would be given effect. The difficulty arises from the intention attributed to the testator in different cases involving the construction of the same or similar words. In Strain v. Sweeny, 163 Ill. 603, the limitation over was in case the first taker “should die without issue of his body.” In Summers v. Smith, 127 Ill. 645, the limitation over was to take effect if the first taker “should die without heirs of his body,” and in Gannon v. Peterson, 193 Ill. 372, the limitation over was upon condition that the first taker “die without issue.” In all three of these cases it was held that the testator meant by the use of the words in quotation marks that if the first taker died without issue or children surviving at the time of his death, the limitation over was to take effect. In Field v. Peeples, 180 Ill. 376, the first taker was given a life estate and a limitation over “in case she dies without issue.” In King v. King, 215 Ill. 100, the devise was to a daughter, with limitation over “in case of her death without issue.” Voris v. Sloan, 68 Ill. 588, involved the construction of a deed to trustees for the benefit of the grantor’s" daughter and the heirs of her body, with limitation over “in case she should die without issue.” In the three last mentioned cases the words in quotation marks were construed to mean not a definite failure of issue, and that under the wills and the deed before the court in those cases the fee vested at once upon the birth of a child to the first taker, subject to be diminished as others should be born. The decision in each of the six cases mentioned turned, .not upon any technical meaning required to be attributed to the particular words quoted, but upon the .intention of the testators and the grantor, gathered from all the provisions of the wills and deed the court had under consideration.
Adopting as our guide in the construction of the language, “if my grandson James Clark Stafford, and his brothers and sisters which he has or may have, shall die without issue,” the intention of the testator, to be ascertained upon a consideration of the entire will, we are constrained to hold that the words “shall die without issue” were not intended to mean without issue or children surviving the first takers at the time of their death, but meant if they should die without having had issue or children born to them. The intention of the testator, as we gather it, was to make provision for James Clark Stafford and his brothers and sisters and the children that might be born to them or one or more of them, and that he did not have in contemplation, or attempt to provide for the contingency of, the death of children born to them before their deaths. Under this construction the fee vested in the children of Ann Maria and the limitation over to the heirs of the testator was defeated. Upon the death of said children of Ann Maria the property went to their heirs and not to the heirs of the testator.
The demurrer to the bill was therefore properly sustained, and the decree of the circuit court is affirmed.
Decree affirmed.
