89 N.E.2d 381 | Ill. | 1949
This suit, commenced in the circuit court of Livingston County, involves the construction of the seventh clause of the will of Joshua G. Chesebro, deceased. This clause is *516 as follows: "To my daughter, Aurelia Clarra Bell Chesebro I give and bequeath, [describing eighty acres of land] to have and to hold the same during the term of her natural life, and the remainder to the children of her body, if any there be living; if she die without issue living then the remainder to my children Esther Gennett Ross, Anna M. Chesebro, Libbie F. Chesebro, Walter B. Chesebro and Hiram M. Chesebro, to have and to hold the same to them and their heirs forever." Joshua G. Chesebro died in 1891. His daughter Aurelia, twice married, died June 1, 1948, leaving her surviving one child, Spencer H. Watterson. She also left surviving Betty Thompson, the only child of Anah Iris Campbell, a daughter of Aurelia, who died during the lifetime of her mother. Aurelia had several other children, but all of them had died prior to their mother, leaving no children or descendants of children.
The complaint in the case was filed by Spencer H. Watterson, the sole surviving child of Aurelia, against Betty Thompson, a grandchild, claiming that by the terms of the will only children, in their commonly accepted sense, take under the law, and that the term "children" did not include grandchildren. The circuit court denied the contention of plaintiff and held that the intention of the testator was to include grandchildren under the term "children" as found in the will, and therefore decreed that appellee, Betty Thompson, took a one-half interest in the land disposed of. A freehold being involved, the case comes directly to this court.
The authorities in Illinois upon this point all seem to uphold the contention of appellant. In Arnold v. Alden,
In Martin v. Modern Woodmen of America,
In Hanes v. Central Illinois Utilities Co.
In Greenfield v. Lauritson,
In the case of Bushman v. Fraser,
We have thus at some length reviewed these authorities because counsel for appellee in his brief has cited nothing in opposition thereto, except certain quotations from the decisions of other States, without troubling to set out the language of the will involved in the cases cited from such States. As a matter of fact, the notation in 104 A.L.R. 291 shows that thirty-five States including this State, have *519 many times adopted and followed the rule found in the above cases.
It then remains to determine whether any intention appears from the language of the will which would clearly indicate that the word "children" was used in any other sense. Appellee contends that the word "issue" used in the clause manifests an intention that the grandchildren should take the same as children. However, in Arnold v. Alden,
While appellee contends that a grandchild should be in the same position as his father or mother, as provided by the statute of inheritance, yet, since the parties to this case claim under a will, the language of which has been construed in similar cases to exclude grandchildren, we are not at liberty to revise the will of Joshua G. Chesebro, but must construe it to mean that the living bodily child of Aurelia Chesebro, viz., Spencer H. Watterson, became the only heir entitled to take the land in question.
The decree of the circuit court of Livingston County is reversed and the cause remanded, with directions to enter a decree in accordance with the prayer of the plaintiff, appellant.
Reversed and remanded, with directions. *520