Wilson v. Turner
45 N.E. 820
Ill.
1896
Check Treatment
Mr. Justice Craig

delivered the opinion of the court:

An аction for money had and received will lie whenever one person has received money which, in justice, belongs to another, and which, in justice and right, should be returned. In Allen v. Stenger, 74 Ill. 119, in discussing this question, the court said (p. 121): “Assumpsit always lies to recover money due on simple contrаct. And this kind of equitable action to recover back money which ought not, in justice, to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex equo et bono, the defendant ought to refund. (Chitty on Contracts, 474.) When, therefore, according to this rule, one person obtains the money of another which it is inequitable or unjust for him to retain, the person entitled to it may maintain an action for money had and received for its recovery. And it is not necessary that there should be an express promise, as the law imрlies a promise. The scope of the action has been enlarged until it embraces a great variety of cases, the usual test being, does the money, in justice, belong to the plaintiff, and has the defendant received the money, and should he, in justice and right, return it to the plaintiff.”

Under the rule announced, if the money paid over to Turner and Grover, as executors of the estate of Henry Kent, deceased, belonged to the estate of Nancy C. Kent, deceased, they had no right to hold the money, and no good reason is percеived why the equitable action for money had and received was not an appropriate remedy. Whether the money, when so turned over,' belonged to the estate of Nancy C. or to the estate of Henry Kent, deceased, depends upon the constructiоn to be placed upon the will of Henry Kent. It will be observed that the money in question, with the exception of $153.40, which was a part of Mrs. Kent’s specific allowance, consisted of money received from a sale of one-half of the personal property оf Henry Kent, deceased, and from the rent of the farm in which Mrs. Kent had an estate for life. As the rent and the personal property do not rest entirely upon the same principle, we will consider them separately.

Clause 4 of the will declares: “I give, devise and bequeath unto my wife, Nancy C. Kent, one-half of all the personal property, money and effects, not hereinbefore otherwise disposed of, which I may own or have a right to at the time of my death. And I also give, devise and bequeath to my said wife the farm upon which we, my wife and myself, now reside, for and during the term of her natural life, she to have all the rents, issues and profits growing out of or arising from the same, from the time of my death, for and during her natural life, whether such rents, issues and profits arise from a lease now made or which may hereafter be made by me of sаid farm.” By the sixth clause the testator directed the sale of his real estate after the death of his wife, and also empowered her to dispose of one-half ‍‌‌​‌​‌‌‌​​‌‌​‌‌​​​​​‌​‌​​​​​‌‌‌‌​‌​‌‌‌‌​​‌‌‌‌​​​‍of the proceeds of the sale by will. Clause 7 of the will declares: “In case my said wife shall not make disрosition of half of said proceeds of said sale of said real estate as it is herein above provided that she may do, then it is my will that said proceeds of said sale so left undisposed of, together with all the personal property hereby given my said wife absolutely which at her death shall remain undisposed of, and also all the rents, issues and profits of the property hereby bequeathed to her undisposed of at the time of her death, pass to and be divided between the nephews and nieces of my said wife, namely:” The last clausе of the will directs the executors to divide the remainder of the personal property which shall not have been disposed of by Nancy C. Kent among her nephews and nieces.

The language of the fourth clause of the will is plain and unambiguous, and there can be no quеstion or doubt in regard to the fact that one-half of the personal property owned by the testator was willed absolutely to Nancy 0. Kent. The clause contains no condition, reservation or restriction, but in absolute terms the property is devised. More explicit language could not have been selected by the testator to manifest an intention to confer upon and vest the wife with an absolute ownership of the personal property named in the fourth clause of the will. That the testator intended to make an absolute gift to his wife is confirmed by language found in the seventh clause, as follows: “Together with all the personal property hereby given my said wife absolutely” The testator not only made an absolute gift, but in a subsequent part of the will declared that the gift was absolute. The gift being absolute, did the condition' named in the seventh clause, that the property undisposed of should be divided among the nephews and nieces, have any effect upon it?

. In a case of this character we think the law is well settled that the gift over is void. In 2 Williams on Executors (7th Am. ed. p. 1267) the rule is stated as follows: “Another instance of a repugnant, and therefore void, condition may be found in the doctrine that if there is an absolute bequest of property, with a proviso that if the legatee dies without having disposed of it by will or otherwise his interest in it shall cease and it shall go over to another, the gift over is void and the legacy absolute.” The rule is the same in regard to both real and personal property. If either is given absolutely, the limitation over is void. In 2 Jarman on Wills (5th Am. ed. p. 529, note 19,) it is said: “And, in general, a gift over by remainder or otherwise, after an аbsolute legacy or a devise in fee, of whatever may remain if the first legatee or devisee die without having disposed of it, is repugnant to the. nature of the estate or interest first given, and void.” The same rule is laid down in Massachusetts. (Ide v. Ide, 5 Mass. 499; Gifford v. Choate, 100 id. 346.) To the same effect is Jackson v. Robins, 16 Johns. 587, where the court said: “And we may lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is where the testator givеs to the first taker an estate for life only, by certain and express ‍‌‌​‌​‌‌‌​​‌‌​‌‌​​​​​‌​‌​​​​​‌‌‌‌​‌​‌‌‌‌​​‌‌‌‌​​​‍words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of reversion. This distinction is carefully' marked and settled in the cases.” (See, also, Horn v. Campbell, 100 N. Y. 287.) To the same effect are cases in Maine. (Jones v. Bacon, 68 Me. 34; Pickering v. Langden, 22 id. 413; Remsell v. Remsell, 21 id. 288.) The same rule has been declared in Iowa. Thus, in Rona v. Meyer, 47 Iowa, 610, the court says: “It is fully settled by authority that if the first taker has the power, by the terms of the will, to dispose of the property, he must be considered the absolute owner, and any limitation over is void for repugnancy.” (See In re Will of Burbank, 69 Iowa, 378.) In McKenzie's Appeal, 41 Conn. 607, where a testator gave his widow certain real estate, and provided that if any remained at hér death the same to be divided equally among his children then living, the court held that an absolute power of disposal was given to the widow and that the gift over was void. See, also, Smith v. State, 52 Conn. 562.

In Wolfer v. Hemmer, 144 Ill. 554, in the discussion of this question, it was, among other things, said (p. 560): “It is clear, then, that the fee being devised to the wife by the express terms of the first clause, a devise over, as is claimed by the second, could only take place as an executory devise. But as is said in Redfield on Wills, (vol. 2, p. 277): ‘It is a settled rule of American as well as English law, that when the first devisee has the absolute right to dispose of the property ‍‌‌​‌​‌‌‌​​‌‌​‌‌​​​​​‌​‌​​​​​‌‌‌‌​‌​‌‌‌‌​​‌‌‌‌​​​‍in his own unlimited discretion, and not a mere power of appointment among certain specified persons or classes, an estate over is void, as being inconsistent with the first gift.’” After reciting the same rule as established in Kent’s Commentaries, the court said: “Numerous decisions might bе cited approving and following this rule, and our attention has been called to none to the contrary. It has been expressly recognized by the court in Fairman v. Beal, 14 Ill. 244; Welsch v. Belleville Savings Bank, 94 id. 191; Hamlin v. United States Express Co. 107 id. 443. More comprehensive language to cоnfer an unlimited discretionary power of disposition could not be commanded than was uspd by the testator in the second clause of this will. The wife "is given ‘full power to sell, mortgage, exchange, invest and re-invest the same in the same manner I (the testator) might do if living, and to distribute the sаme, by gift or otherwise, among my children at any time during her life, as to her shall seem meet and proper, and to appoint the same among my children by will after her decease, according to her own judgment and discretion. ’ The devise over would, therefore, under the forеgoing authorities, be void, however clearly expressed. ”

In Hamlin v. United States Express Co. 107 Ill. 443, the court said (p. 448): “The doctrine relied upon by counsel for plaintiffs in error, that where there is a devise of an unlimited power of disposition of an estate in such manner as the devisee may think fit, a limitation over is inoperative and void by reason of its repugnance to the principal devise, is not controverted by counsel for defendant in error, and is undoubtedly well established.”

In Welsch v. Belleville Savings Bank, 94 Ill. 191, the court said (p. 203): “We fully recognize the doctrine that where, by the terms of a will, there is given to one аn unlimited power of selling or otherwise disposing of an estate in such manner as the devisee may think fit, a limitation over is inoperative and void, by reason of its repugnance to the principal devise.”

We do not think this case can be ‍‌‌​‌​‌‌‌​​‌‌​‌‌​​​​​‌​‌​​​​​‌‌‌‌​‌​‌‌‌‌​​‌‌‌‌​​​‍controlled by Bergan v. Cahill, 55 Ill. 160, cited in the brief, as in that case there was not an absolute power of disposition in the party to whom the property was first devised. Here there was an absolute devise of the personal property to the wife, and the limitation over in a subsequent clause of the will was inоperative and void. This case is also distinguishable from the case of Glover v. Condell, 163 Ill. 566, because in that case the will conferred no power of disposition upon the first taker, while here the first taker had absolute power of disposition.

The only remaining question relаtes to the rents, issues and profits arising from the farm. Clause 4 of the will, as has heretofore been seen, declares: “And I also give, devise and bequeath to my said wife the farm upon which we, my wife and myself, now reside, for and during the term of her natural life, she to have all the rents, issues and рrofits growing out of or arising from the same, from the time of my death, for and during her natural life.” The last part of clause 7 of the will provides that all the personal property devised to his wife which at her death shall remain undisposed of, and also all the rents, issues and profits of thе property bequeathed to her, undisposed of at the time of her death, shall pass to and be divided among the nephews and nieces of his wife. Under the will the wife took a life estate in the farm, and the life estate would carry with it all rents and profits arising from the farm during the existence of the estate. Whatever rents the wife received from the farm became and were her absolute property, which she was at liberty to dispose of as she pleased. The property having been given to her coupled with the power to dispose of it as she saw proper, the condition imposed by the last part of clause 7, inconsistent with and repugnant to the gift, was void. By the limitation over the testator undertook to take away the absolute property in the rents which had been conferred on the wife by a рreceding clause in the will. That could not be done. Upon the absolute transfer of an estate, the grantor cannot, by any restrictions or limitations contained in the instrument of transfer, defeat or annul the legal consequences which the law annexes to the estatе thus transferred. Steib v. Whitehead, 111 Ill. 247.

In Williams on Executors (vol. 2, 7th Am. ed. p. 1265,) the rule is laid down as follows: “Among illegal conditions subsequent may be classed such as are repugnant. ‘I find it laid down as a rule long ago established,’ said Lord Alvanley in Bradley v. Piexoto, ‘that where a gift is with a condition inconsistent with аnd repugnant to such gift, the condition is wholly void.’ * * * ‘If property,’ says Lord Eldon in Brandon v. Robinson, ‘is given to a man for his life, the donor cannot take away the incidents to a life estate.’” The same rule is laid down in 2 Woerner on Administration (p. 954): “A condition which is inconsistent with the estate to which it is аttached ‍‌‌​‌​‌‌‌​​‌‌​‌‌​​​​​‌​‌​​​​​‌‌‌‌​‌​‌‌‌‌​​‌‌‌‌​​​‍is void, and the estate devised or bequeathed passes absolutely.” Likewise in 2 Jarman on Wills (4th Am. ed. p. 527:) “Conditions that are repugnant to the estate to which they are annexed are absolutely void. Thus, if a testator, after giving an estate in fee, proceeds to qualify the devise by a proviso or condition which is of such a nature as to be incompatible with the absolute dominion or ownership, the condition is nugatory and the estate absolute,” etc. The doctrine is enunciated in 2 Redfield on Wills (2d ed. p. 287): “It seems to be an universal rule, that where conditions are repugnant to the estate to which they are annexed they are absolutely void.”

We think, under the authorities,' it is clear that the will gave to the wife an absolute estate in the personal property and the rents of the farm, and upon her death whatever remained of the proceeds of either belonged to her estate.

The judgment of the Appellate Court will be reversed. The judgment of the circuit court will also be reversed for the reason it was too small. The cause will be remanded to the circuit court for another trial in con-' formity to this opinion.

Judgment reversed.

Mr. Justice Carter took no part.