| Ill. | Feb 20, 1901
delivered the opinion of the court:
By item 1 of the will of.Joseph Stickel his wife is given all the personal property, together with a legacy of $3000, the latter, together with certain other legacies to his children, to be raised in a manner thereinafter pointed out. Item 4 authorizes the executrix “to sell and convey, or not to sell, at her discretion,” any or all of the real estate, at such time or times, publicly or privately, and on such terms, as she may deem best for-the estate, and out of the proceeds of the sale, if the lands are sold, she is directed to pay, first, ,the legacies of $50 each to the children, and second, the legacy of $3000 to herself, the residue of the proceeds, after the payment of certain charges, to be safely invested.
It is contended by appellants that the will vests in the executrix only a discretionary power to sell, or not, as she shall elect, and that she having failed to validly exercise this power of sale, therefore at her death the power became extinguished and the lands descended to the heirs generally, relieved from the legacies. On the other hand, appellees contend the legacies to the wife and children were vested and at once became a charge upon all the testator’s real estate, and that they remained a charge or lien upon the real estate until satisfied, without reference to whether the wife of the testator elected to sell the lands or not,—and this latter position we think must be sustained. It cannot be said the language of this will vests in the executrix a mere option or discretion to pay legacies, or not. The most that can be said is, that it gives her a wide range for the -exercise of her power over the lands, the intention in the mind of the testator, as is apparent from several expressions contained in his will, being to provide for the safe investment of the funds of the estate arising from the sale of lands' and have the assets handled in a manner conducive to the best interests of the estate. The gift of the legacies in the first and third items is absolute, and to construe the subsequent part of the will as making it optional with the executrix as to whether the legacies shall be paid or not would not be in harmony with the gifts previously made,—or, in other words, such a construction would render the former part of the will meaningless. Moreover, the concluding paragraph of the will is of controlling importance and leaves no doubt as to the intention of the testator. It is as follows: “At the death of my wife I desire that such of my real estate as remains undisposed of, and the proceeds of the sale of such real estate as may have been sold, shall descend to my children herein named, or their descendants,” etc. It will be remembered that in the first item all the personal estate of the testator was exhausted by the gift of it to the wife, and now the language of this clause undertakes to dispose of whatever remains of the real estate. By the language “undisposed of” is simply’ meant the residue, and it is apparent that the rights of “the descendants” are intended to attach only to this residue. And this residue clearly means what remains after all bequests and legacies are satisfied.
Although, in the absence of an expressed intention to the contrary, legacies are payable primarily out of the personal estate, yet it is a rule of property, both in England and most of the courts of this country, that if legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are considered a charge on the residuary real as well as personal property. (Lewis v. Darling, 16 How. 1" date_filed="1854-02-18" court="SCOTUS" case_name="Lewis v. Darling">16 How. 1; Smith v. Fellows, 131 Mass. 20" date_filed="1881-04-05" court="Mass." case_name="Smith v. Fellows">131 Mass. 20; Wilcox v. Wilcox, 13 Allen, 252; see, also, cases cited in 13 Am. & Eng. Ency. of Law, 117.) The principle upon which this rule is based is, that the whole is considered as one mass; that part of that mass is represented by legacies, and that “what is after-wards given is minus what has been before given, and therefore given subject to the prior gift.” (Greville v. Brown, 7 H. L. Cas. 697.) The gift of the residue, in this case, it is true, has reference only to the real estate; but the foregoing principle is applicable,—that is, that a gift of a residue, or of whatever remains “undisposed of,” contemplates prior gifts, and the persons taking such residue take it only after the prior gifts have been satisfied, the language plainly charging the gift upon the lands.
Being a charge upon the lands of Joseph Stickel, the legacies remain a lien until satisfied, without reference to whether the executrix appointed under the will discharged them or not. As before stated, she undertook to exercise her power under the will by selling all the lands of the estate except the homestead tract, by making a conveyance to one Cress, who immediately conveyed the land back to her, individually. Complainants attack the validity of this conveyance upon the ground that it was, in effect, a conveyance from the executrix to herself, and was therefore void. From the evidence it appears that the price received or accounted for by the executrix was in excess of the reasonable value of the lands sold, and the estate which she represented not only suffered no loss but actually gained by the transaction. A conveyance of this character is not void, but is only voidable, and may be ratified by the parties interested. (Sloan v. Graham, 85 Ill. 26" date_filed="1877-01-15" court="Ill." case_name="Sloan v. Graham">85 Ill. 26; Ebelmesser v. Ebelmesser, 99 id. 541.) After making this sale, in the course of her administration of the estate the executrix made her final report to the court on May 2, 1896, setting forth the manner of the sale and the application of the proceeds, at which time it must be presumed the parties in interest were before the court and had an opportunity to object to the proceedings if they so desired. No objection appears to have been made, but, on the other hand, the complainants accepted a part of the funds realized from this sale in payment of the legacies to them of $50 each. These facts, and the further consideration that this bill is purely a collateral attack upon the order of the county court approving that sale, would have justified the chancellor in refusing to disturb the conveyance to Mrs. Stickel. However, the court below has set aside this conveyance upon Conditions, and the appellees have filed no cross-errors, but are presumably satisfied with the decree as it stands. The decree requires complainants, if they desire to subject the land to partition, to account to the estate of Sarah Stickel for the money paid by her and the debts assumed by her when the conveyance was made. It would be manifestly unjust and inequitable to permit them to take the real estate notwithstanding these deeds, and at the same time refuse to pay the money which was realized from that sale. The transaction by which the widow became the purchaser of the lands being not absolutely void, but voidable, it was the duty of the court, upon setting it aside, to adjust the equities between the parties,—and this, we think, it has fairly done. Therefore appellants have no just grounds for complaint as to that part of the decree.
This view disposes of all the questions arising- upon the record except as to the conveyance of the homestead. There is no ground, under the evidence, for the contention that this deed was obtained by undue influence on the part of the wife, and that question will receive no further consideration.
Where a husband conveys a homestead to his wife without the latter joining in the conveyance, such deed does not convey the homestead to the extent of $1000 in value, but is a good conveyance to all property described therein in excess of the homestead of the value of $1000. This well settled proposition is not denied by counsel, but it is contended, and so decided by the court below, that Joseph Stickel having conveyed the land by general warranty deed, for a valuable consideration, the covenants of the deed are binding upon his heirs so far as assets from his estate may descend to them. Such a deed being absolutely void as to the homestead, how can it be said its covenants are binding upon the parties with respect to the lands included within the homestead? The same contention was made in Anderson v. Smith, 159 Ill. 93" date_filed="1895-11-22" court="Ill." case_name="Anderson v. Smith">159 Ill. 93, but without avail. There is not a failure of title in the grantor, as is usually understood when there is a breach of such a covenant, but there is a failure because the attempt is to do an act which the law will not permit to be done. All interest or title remains as though no deed had ever been made,-—-that is, the title remains in the grantor subject to the character of homestead and descends to the heirs-at-law. (Donahoe v. Chicago Cricket Club, 177 Ill. 351" date_filed="1898-12-21" court="Ill." case_name="Donahoe v. Chicago Cricket Club">177 Ill. 351, and cases cited.) The deed being wholly inoperative to affect or pass the title to the homestead tract of the value of $1000, it remained in Joseph Stickel, and upon his death descended to his heirs subject to the provisions of his will. The legacies, as we have seen, being vested and attaching to the real estate, it must follow that this one thousand dollars’ worth of land could only go to the heirs or devisees, under the will, after the payment of the legacies, and as $1000 of the legacy to the wife has never been paid, and descended to her daughter, Ella C. Crane, as her only heir, it remains a lien upon that homestead. Upon proper pleadings in the court below it will be partitioned only after the payment of that balance in favor of the estate of Sarah Stickel. To accomplish this purpose and protect the rights of all parties no administration de bonis non of the estate of Joseph Stickel was necessary. Nor can it be properly said that this thousand-dollar homestead is subsequently discovered assets, and therefore there was no error in the decree in the dismissal of the cross-bill of the administrator de bonis non. If defendant Ella C. Crane has not, by her answer, set up her claim to a lien upon the homestead for the satisfaction of the balance of the legacy due her mother, that answer may be properly amended-so as to do so on the remandment of the cause.
The conclusion is, that the decree of the circuit court as to all of the lands except the thousand - dollar homestead tract will be affirmed, and as to the latter it will be reversed and the cause remanded, with leave to the parties to amend the pleadings, and for further proceedings not inconsistent with the views herein expressed.
Affirmed in part, reversed in part and remanded.