Metzen v. Schopp

Mr. Chief Justice Magruder delivered the opinion of the court: Counsel for appellants concede that the only question, involved in this case, is whether, by the terms of the will set forth in the statement preceding this opinion, the appellant, John Peter Metzen, took by the will only a life estate in the real property commencing after the death of Caroline Metzen, or whether he took the land in fee simple absolute, subject to the life estate of Caroline Metzen. By the terms of the first sentence in clause 2 of the will, the testator directs that, upon the death of his wife, Caroline Metzen, “all of the residue of my estate, that theretofore held and enjoyed by her hereinunder, shall become vested in my adopted son, John Peter Metzen.” The residue of the estate was to become vested in the appellant, John Peter Metzen, and in him alone, without any statement that it was to become vested in him and his heirs and assigns; that is to say, no words of inheritance are used in connection with the devise of the residue to John Peter Metzen. Under section 13 of the Conveyance act, “the court can only inquire whether an estate less than a fee is limited by express words or granted, conveyed or devised by construction or operation of law where words, theretofore necessary to transfer an estate of inheritance, are not used. Where an estate is devised to A, without the use of the words ‘heirs and assigns,’ A will take a fee simple estate of inheritance, unless the will, or instrument of conveyance, reduces the estate to an estate less than a fee by express words, or by construction or operation of law.— Wolfer v. Hemmer, 144 Ill. 554; Saeger v. Bode, 181 id. 514; Smith v. Kimbell, 153 id. 368.” (Turner v. Hause, 199 Ill. 464). The fee of the residue of the estate, devised to John Peter Metzer, “may be limited by construction or by express words in a subsequent part of the will, because words, necessary to transfer an estate of inheritance, are not used in the devise of such fee. Hence, the fee, devised to” John Peter Metzen, “maybe reduced to a less estate by the words used subsequently in the” second “clause, to-wit:” “I hereby give, devise and bequeath to him, the said John Peter Metzen,’ my son aforesaid, all said residue of my estate, all of the real and personal property and effects, to him and his heirs of his body forever, under the herein mentioned conditions and restrictions, and such devise being made and subject to the bequests and legacies to be paid, as herein provided.” There being nothing in the character of the devise of the residue of the estate to John Peter Metzen, which prevents a limitation thereof by subsequent words used in the second clause, the question arises what estate less than a fee was devised to John Peter Metzen by that clause. It must be said here, as it was said in Turner v. Hause, supra: “There can be no other answer to this question, under the decisions of this court, than that” John Peter Metzen “took a life estate only, with remainder in fee to the heirs of his body.” (Blair v. Vanblarcum,, 71 Ill. 290; Lewis v. Pleasants, 143 id. 271; Frazer v. Supervisors, 74 id. 282; Cooper v. Cooper, 76 id. 57; Lehndorf v. Cope, 122 id. 317; Dinwiddie v. Self, 145 id. 290; Kyner v. Boll, 182 id. 171; Saeger v. Bode, 181 id. 514; Welliver v. Jones, 166 id. 80). We are, therefore, of the opinion that, by the terms of clause 2 of the will, the appellant, John Peter Metzen, was to take, upon the death of Caroline Metzen, a life estate only in the residue of the estate therein mentionéd, subject to the conditions and restrictions and the’ payment of the bequests and legacies mentioned in the will. It is, however, contended by the appellants that, even if John P. Metzen was given only a life estate in the property by the provisions of clause 2, yet that, by the terms of clause 5 of the will, he was empowered to sell the real estate after he became twenty-five years of age, and that, for this reason, it was the intention of the testator to give John Peter Metzen the fee simple estate in the residue of the property. This contention is based upon the use in clause 5 of the will of the following words “I further direct * * * that my son and heir, John Peter Metzen, shall not be permitted to sell or encumber any improved property, devised hereunder, until he shall be twenty-five years of age.” It is true, as a general rule, that “where by the terms of a will, there is given to one an 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.” (Welsch v. Belleville Savings Bank, 94 Ill. 203). In the case at bar, however, the words, above quoted from clause 5 of the will, do not confer a power of sale, but they amount to a restriction. and limitation on the power of sale. They were meant to-prevent the son from selling or mortgaging his interest. It has been held by this court in a number of cases that, “where a power of disposal accompanies a bequest or devise of a life estate, the power of disposal is only co-extensive with the estate which the devisee takes under the will, and means such disposal as a tenant for life could make, unless there are other words clearly indieating that a larger power was intended.” (Henderson v. Blackburn, 104 Ill. 227; In re Estate of Cashman, 134 id. 88). In the will here under consideration, there are no other words besides those devising the estate, which clearly indicate that a larger power of sale was intended to be, conferred than such power of sale as a tenant for life could exercise. In Welsch v. Belleville Savings Bank, supra, we said (p. 204): “It may be laid down as a general rule, that in all cases where, by the terms of a will, there has been an express limitation of an estate to the first taker for life, and a limitation over, any general expression, * * * apparently giving the tenant for life an unlimited power over the estate, but which do not in express terms do so must be regarded as referring to the life estate only, and therefore as limited by such interest.” Here, the words, above quoted from clause 5 of the will, cannot be said to give the tenant for life an unlimited power of sale in express terms. If the words referred to can be regarded as anything else than a restriction or limitation upon the power of sale, they can only be construed as a general expression which apparently gives the tenant for life a power of sale. We are of the opinion that there is nothing in the language, used in clause 5, which raises the interest given to the appellant, John Peter Metzen, in clause 2 from an interest- as tenant for life to an absolute fee title to the residue of the estate. We do not regard the following words in clause 4 of the will, to-wit, “in case of the death of my son, John Peter Metzen, without leaving issue,” as importing an indefinite failure of issue, and therefore it cannot be said that clause 4 is void for remoteness. The words, “without leaving issue,” as used in clause 4, mean “without leaving issue” at the time of the death of the devisee, and not at the time of the death of the devisor. Such words, as are here used, create a definite failure of issue, that is to say, the failure of issue living at the time of the death of John Peter Metzen. (Smith v. Kimbell, 153 Ill. 368; Strain v. Sweeny, 163 id. 603). In our opinion the circuit court committed no error in sustaining the demurrer to the bill, and dismissing the same for want of equity. Accordingly, the decree of the circuit court is affirmed. Decree affirmed.