151 N.E. 905 | Ill. | 1926
Benjamin F. Hamilton executed his will on November 1, 1915, and died on December 24 in the same year. He left surviving him his wife, Elizabeth, and his two daughters, Cora Belle Whittaker and Fannie H. Porter, who were his only heirs. He owned about 400 acres of land, and he disposed of all his property in the following words:
"Second — After the payment of such funeral expenses and debts I give, devise and bequeath to my wife, Elizabeth Hamilton (in case of her survival of the testator) I give, devise and bequeath the income from all the real estate that I may die possessed of. Upon the death of my wife, Elizabeth, I direct that the income from all said real estate be equally divided between my daughters, Cora B. Whittaker, of Brimfield, Ill., and Fannie E. Porter, of Hume, Ill., and upon the death of my daughters above mentioned, said property is to become the property of their children to have and to hold as they deem best, and the property to be shared equally between the said children of Cora B. Whittaker and Fannie E. Porter. After the payment of all my just debts and expenses above mentioned, I direct that all my personal property and belongings be equally divided between my daughters, Cora B. Whittaker and Fannie E. Porter."
Mrs. Hamilton executed her will on April 19, 1916, and died on March 31, 1918, leaving her two daughters, Mrs. Whittaker and Mrs. Porter, as her heirs. The will disposed of her property as follows:
"2nd — I hereby direct that all my just debts and funeral expenses be paid as soon after my death as conveniently may be.
"3rd — I hereby bequeath all the personal property of every name and nature that I may die possessed of to my daughters, Cora Belle Whittaker and Fannie H. Porter, *371 each of whom is to share equally in such property, and I further request that the division of such property be made as soon after my death as can be conveniently.
"4th — I devise all the real estate that I may die possessed of to my daughters, Cora Belle Whittaker, of Brimfield, Ill., and Fannie H. Porter, of Hume, Ill., for their use during their lifetime, each to share equally, upon the death of my daughters said real estate is to become the property of their children, to be shared equally, they to have full power to do with such lands such as they deem best."
Mrs. Hamilton also owned about 400 acres of land, 160 acres of which she had bought after she made her will, and it was subject to a mortgage which she had executed to Charles W. Winne, trustee, for $11,200. Mrs. Whittaker had two daughters, Mabel Catton and Gwendolen Whittaker. Mrs. Porter had six children. On December 3, 1918, Mrs. Whittaker and her two daughters filed a bill in the circuit court of Peoria county for the partition of all the land of both Mr. and Mrs. Hamilton, making Mrs. Porter and her husband, Grant W. Porter, and their five children then living, defendants, one of their sons having died after the death of his grandmother, leaving his brothers, sisters, father and mother as his heirs. During the pendency of this suit two other children of Mr. and Mrs. Porter have died, leaving two brothers, a sister and their father and mother as their heirs. Answers were filed, the cause was referred to a master, who made his report, the cause was heard by the court on objections to the report, and a decree was entered construing the wills of Mr. and Mrs. Hamilton and ordering partition of the premises, from which Mrs. Porter has appealed.
The contention of the appellees, the complainants, is that each of the wills devised to each of the daughters a life estate in the undivided half of the land of the testator or testatrix, with remainder in fee simple to her children. The *372 contention of the appellant is that each will devised an estate for life to the two daughters with cross-remainders for the life of the survivor, with contingent remainder, after the death of the survivor, to all the children, to be divided among them per capita.
"Cross-remainders are remainders which, after the limitation of particular estates to two or more persons either in undivided shares in one piece of land or in separate pieces of land, are so limited that upon the expiration of the particular estate of any one of such persons, the right to the possession of that share, which was previously vested in him or his successor in interest, will be vested in the other or others of such persons or his or their successors in interest, with the result that finally the right of possession will be vested exclusively in one of such persons or his successor in interest as ultimate remainderman, the estates of the others having come to an end." In a deed cross-remainders can be created only by express limitations, but in a will they may be implied. (1 Tiffany on Real Prop. sec. 143; Addicks v. Addicks,
While the language of the two wills in this case is not identical there is no difference in their meaning. Each gave to the two daughters a life estate in the land devised as tenants in common. Mrs. Hamilton's will in terms devised all of her real estate to her daughters for their use during their lifetime. Mr. Hamilton's will directs that the income from all his real estate be equally divided between his daughters. He created no trust but gave the income directly, and this is a gift of the land itself. Zimmer v. Sennott,
The language by which the remainder is devised by the two wills to the daughters' children is substantially identical. There is no difference in meaning. There is some superfluous use of language which does not change in any way the effect of the words used to create a remainder in *374 fee in the children of each daughter. After the expiration of the life estate given to their mother the language of each will provides that upon the death of the daughters the real estate is to become the property of their children, to be shared equally.
In Fussey v. White,
Doe v. Webb, supra, was a devise by the testatrix to her three daughters and the heirs of their bodies, as tenants in common and not as joint tenants, and in discussing its effect it is said: "Much stress has been laid on the word 'respectively' by judges of great name. How the use of that word could make any difference in construing the meaning of the testatrix it is difficult to discover, for if the word is omitted the sense continues the same. A devise to two as tenants in common and to the heirs of their bodies must necessarily mean to the heirs of their respective bodies." So a devise to the two daughters for life, as tenants in common, and upon the death of the daughters the property to become the property of their children, must necessarily mean of their respective children.
In Jarman on Wills (vol. 3, 5th Am. ed. 16,) it is said: "The court will not construe the will as postponing the distribution of every part until the death of the surviving tenant for life unless an intention so to do is clearly indicated. Although the gift in remainder is in terms of the whole fund, and appears, therefore, to have a simultaneous distribution in view, yet if a tenancy in common is more consistent with the general context it will be established, especially in favor of children, in spite of the apparently antagonistic terms. And this construction is readily made where, after the gift to several for life, the remainder is not 'after their death' but 'at their death,' for the literal meaning, viz., the simultaneous death of all, could not have been contemplated, and 'at their respective deaths' is a meaning more likely to suit the intention than 'at the death of the survivor.' " In support of this statement are cited in the note the cases ofArrow v. Mellish, 1 DeG. S. 355; Willes v. Douglas, 10 Beav. 47; In re Laverick's Estate, 18 Jur. 304; Turner v.Whittaker, 23 Beav. 196; Archer *376 v. Legg, 31 id. 187; Wills v. Wills, L.R. 20 Eq. 342. These cases fully sustain the text.
In Turner v. Whittaker, supra, the testator bequeathed an annuity of £50 a year to his wife for her life and directed his executors to place in the funds sufficient stock to secure the annuities. The will proceeded: "At the death of my beloved wife, Elizabeth Turner, I desire that the annuity held by her shall be equally divided between my sons, Edward and Alfred, but not the principal, that I bequeath to their children, to be divided equally among them at the death of my sons, Edward and Alfred Turner." The widow died. Some years later the son Alfred died leaving four children. His brother, Edward, who survived him, had six children. The question was whether the moiety of the fund was divisible on the death of Alfred or not until the death of Edward and whether the children of Edward and Alfred took per capita or per stirpes, and it was held that the children of Alfred were entitled to half the principal sum. The other cases equally support the proposition, and cases to the same effect are: Taniere v.Pearkes, 2 Sim. Stu. 383; Milner v. Aked, 6 Wkly. Rep. 430; Bool v. Mix, 17 Wend. 119; Gardiner v. Savage,
The language of these two wills is ambiguous, and if the case were one of first impression the construction of them would not be free from difficulty. The form of the devises is, however, substantially the same as has been used in many wills which have been the subject of adjudication, by which the meaning has become well established. Under the statute in force at the times when these wills were executed a conveyance or devise of an estate to two or more persons, without restrictive or explanatory words, constituted the grantee's tenants in common and not joint tenants, contrary to the rule of the common law that it is necessary, in order to create a tenancy in common, to add exclusive or explanatory *377
words, so as to expressly limit the estate to the grantees to hold as tenants in common and not as joint tenants. (Mette v. Feltgen,
An unconditional devise of a remainder, upon the death of a life tenant, to an ascertained person or class of persons is an absolute gift and is vested at the death of the testator, the possession, only, being postponed because of the life estate. (Lynn v. Worthington,
The decree makes no mention of the mortgage for $11,200 on 160 acres of the land. It was error to decree partition without taking into consideration this mortgage.
The decree will be reversed and the cause remanded, with directions to the circuit court to re-enter the decree with a modification providing for the payment of the mortgage which is past due, in such manner that the incumbrance shall be borne equally by the Whittaker interests and the Porter interests.
Reversed and remanded, with directions. *380