Muhlke v. Tiedemann

Per Curiam: The first question to be determined in this case is, did Catharina Muhlke, widow of John H. Muhlke, deceased, take the absolute title to the property given and devised to her in the second clause of his will, or only a life estate with a restricted power of disposal; and if only the latter, and her will was a mere execution of the power so far as it disposed of said property, the second question is, does her will violate the rule against perpetuities and is it therefore void? The complainants in the bill, three of the heirs-at-law of John H. Muhlke, sought to partition the lands as intestate estate, Catharina Muhlke being dead. She died seized and possessed also of real and personal property not derived from the will of her husband and which is not involved in this suit. The trustees named in her will claim to bold the property sought to be divided, in trust for the purposes mentioned in her will. From the view we take of the case the second question does not arise. The clause of John H. Muhlke’s will upon the construction of which must depend the answer to the first question and the decision of the case, is as follows: “Second—All of the property, real and personal, of which I may die seized or possessed, and wherever situated, I give, devise and bequeath unto my beloved wife, Catharina Muhlke, to have, use, lease, dispose of and convey at her own will and discretion, subject only to this restriction and prohibition: that she shall not mortgage or convey the same, or any part thereof, without the written consent of John II. Harmon and Charles G. Muhlke during their joint lives, or of the survivor of them during his life.” There is not, either in this clause or in any other part of the will, any limitation or devise over, or any intimation that any other person or persons shall thereafter, under any circumstances, have any right or interest whatever, of any kind; in the estate or any part of it. In the construction of a will the primary consideration is the ascertainment of the real intention of the testator, and for the purpose of such ascertainment regard must be had to each and all of its provisions. It may well be that, under the rules of law, force, vitality and effect cannot be given to some of them; but nevertheless, so far as they throw light upon the provisions of the will and thus aid the expounder in ascertaining the testator’s intention, they are to be regarded in its interpretation. It will be noticed that the will gives and devises to said Catharina all of the property, real and personal, of which the testator should die seized or possessed, wherever situated. There can be no doubt that this language, without the restrictive clause, would have been amply sufficient to pass the title to the realty in fee• simple to the devisee, not only under our statute but even at common law. While the technical words “heirs and assigns” were not used, still, the entire right, interest and title of the testator were included in the words employed and would pass under them at common law. (4 Kent’s Com. *535; 2 Jarman on Wills, *283; Lincoln v. Lincoln, 107 Mass. 590.) True, as contended by counsel for appellants, a part of the clause cannot be wrested from its connection with the rest and construed separately, and from that a conclusion reached that a fee was devised and the rest of the clause be then rejected as repugnant to such fee. The entire clause, and even the rest of the will, if it throws any light on the subject, must be considered and construed together. Still, the comprehensive character of the language used in the first part of the clause cannot be lost sight of in the interpretation of the entire clause. If the devise of the property mentioned had been to Catharina Mulilke “in fee simple,” or to her and “her heirs and assigns,” “to have, use, lease, dispose of and convey at her own will and discretion, subject only” to the restriction mentioned, there could be no doubt that the fee would have passed and that the attempted restriction upon the right of alienation would not limit the estate. The only difference would seem to be, that in such a case the intention to devise the fee would expressly and necessarily appear by the use of technical words having a definite legal signification, while as the clause was written such intention appears by necessary implication, unless, indeed, it can be said that such implication is controlled and defeated by the same attempted restriction. Without such restrictive clause there could be no more doubt in the one case that the fee would pass than in the other. What force, then, should be given to this restriction of the power of alienation of the fee?—for that is what the qualifying words of the clause mean. Appellants contend that they so control the rest of the clause as to limit the interest devised to a life estate with a qualified power of disposal of the fee. There is, however, no language used by the testator denoting an intention to devise to his wife a life estate only. There is no devise over, and from the language used we cannot presume he intended to die intestate as to the fee. Such a presumption should not be indulged in any case where the will is open to any other reasonable construction. It was doubtless his wish, as expressed in his will, that she would not mortgage or convey the property devised to her without the written consent of the two persons named; but a.s the will clearly devises the title in fee, the restriction upon the power of alienation of the owner in fee must be held to be without legal force, as the power of alienation is a necessary incident to absolute ownership. Friedman v. Steiner, 107 Ill. 125; Hageman v. Hageman, 129 id. 164; Steib v. Whitehead, 111 id. 247. In so holding we do not overlook appellants’ contention that there is a distinction between a technical devise of a fee and an indefinite devise in fee by implication, and that in the one case the fee would pass at common law unless a contrary intention appears from the context, while in the'other case it would pass even against the expressed intention of the testator, because, by virtue of the rule in Shelley’s case, the testator having" designated the estate devised by technical words, the necessary legal operation of which is to pass the fee, the legal intention which they import cannot otherwise be contradicted. Granting that such technical words were not used in the will in question, and that at common law and without regard to the statute the fee, if devised at all, is devised by implication only, and that such a devise should not be implied unless such implication arises from a consideration of the whole instrument, still, where such implication is not, overcome by the qualifying "clause, it must prevail in the construction of the will to the same extent as if there were a technical devise in fee, for otherwise the restrictive clause would be given more force than the rest of the will. True, as said by counsel, this court said in Siddons v. Cockrell, 131 Ill. 653, that “a devise of land without the use of the word ‘heirs, ’ or other words necessary at common law to pass a fee, is only to be construed as a devise of a fee when it does not appear from the entire will that a less estate was intended;” but applying that rule here, as we have in the construction of the clause in question, the result contended for by appellants cannot be reached, and no such result can be reached without resorting to a strained and artificial interpretation and construction. After applying all appropriate recognized rules of construction, the will discloses no intention different from that which plain, common sense would attach to the language used. The testator intended to devise, and did devise, the property to his wife absolutely, but evidently desiring" that she should avail herself of the judgment of the persons named, in the mortgaging" or sale of the property, undertook to limit her power to convey by making" their consent necessary. Whatever moral force such a restriction might have had on the devisee, it could not operate to limit, what would otherwise be an estate in fee simple absolute to a life estate. In nearly all of the cases cited by the appellants there was a limitation over, or other qualification sufficient to rebut the implication that it was intended a fee should pass. This construction of John H. Muhlke’s will disposes also of all questions raised as to the construction of the will of Catharina Muhlke, for it is not contended that her will violates the rule against perpetuities if she was the owner in fee of the lamds which she devised in trust by her will, but only that it had that effect if her will disposed of lands which his will merely gave her a power to dispose of, and her will was made in execution of such power, the point being, that if the estate appointed by her will in the execution of the power would have been void as against the rule had it been made by his will, it is void as made by her will. (4 Kent’s Com. *338; Gray on Perpetuities, sec. 515.) But as we have held that her will was not the mere execution of a power given to her by her husband’s will no further attention need be paid to this branch of the case, it having been cut off by the construction given to the first will. The decree below dismissing the bill was correct, and it will be affirmed. Decree affirmed.