Deemer v. Kessinger

Mr. Chief Justice Hand delivered the opinion of the court: The sole question presented for the consideration of this court by this appeal is, did the devise to William D. Deemer in the will and codicil of Jacob Deemer vest a life estate or a fee in William L. Deemer? We are of the opinion the rule in Shelly’s case applies to said devise, and that the fee vested in William L. Deemer and passed by mesne conveyances to and vested in Sarah J. Kessinger, and that the complainants took no interest in said premises under- the will and codicil of Jacob Deemer, deceased. That rule has been stated thus: “Whenever the ancestor takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, either in fee or in tail, the word ‘heirs’ is one of limitation of the estate, and not of purchase, and the ancestor takes the fee.” (Vangieson v. Henderson, 150 Ill. 119.) Manifestly, under the provision contained in the will, “to my son, William L. Deemer, and to his lawful heirs,” William took a freehold estate, and the estate was limited immediately to his lawful heirs in fee, which fulfilled every requirement of the rule and vested the fee simple title in William L. Deemer. By the terms of the codicil William L. Deemer is given the “use, benefit and control” of the premises “during his lifetime,” the effect of which was to vest an estate of freehold in him, and at his death the fee is given to his lawful heirs. In legal effect the devise to William L. Deemer contained in the codicil and that contained in the will are the same,—that is to say, a freehold estate by each of said provisions is given to William L. Deemer and an estate in fee is limited immediately to his lawful heirs, and the fee to the premises, under the codicil as well as under the will, vested in William L. Deemer. The devise of the “use, benefit and control” of the premises was a devise to William L. Deemer of the land and vested in him a life estate,—i. e., a freehold estate,—therein. (Ryan v. Allen, 120 Ill. 648.) The words “nearest,” “legal,” “lawful,” or similar expressions preceding the word “heirs,” without other words of limitatioú, in a devise, do not convert the word “heirs” from a word of limitation to that of purchase. Ryan v. Allen, supra; Vangieson v. Henderson, supra; Silva v. Hopkinson, 158 Ill. 386. It is, however, urged by counsel for the appellants, that this construction defeats the manifest intention of the testator, and vests the fee in William L. Deemer when the testator intended he should take only a life estate. There is no latent ambiguity in the will or codicil, and the intention of the testator can alone be ascertained from the language used therein by him. In Taubenhan v. Dunz, 125 Ill. 524, on page 529 it was said: “The question of first importance in every case of construction of a will is, what was the intention of the testator?—and when.that is ascertained, effect is to be given thereto. In the absence of latent ambiguity the intention of the testator is to. be gathered, alone, from the will itself,— from a full view and consideration of everything contained within the four corners of the instrument.” And in Fowler v. Blade, 136 Ill. 363, on page 373: “Where there is no ambiguity in the terms used, or where the language of the instrument has a settled legal meaning, the instrument itself is the only criterion of the intention of the parties, and its construction is not open to oral evidence.” And in Engelthaler v. Engelthaler, 196 Ill. 230, on page 233: “The intention which is to be sought for in the construction of a will is not that which existed in the mind of the testator, but that which is expressed by the language of the will.” It has been repeatedly held by this court (Baker v. Scott, 62 Ill. 86, and subsequent cases,) that the rule in Shelly’s case is in force in this State as a rule of property, and that, in determining whether it applies to a given case, its application does not turn upon the quantity of estate intended to be given to the ancestor, but upon the nature of the estate intended to be given to the heirs. (Vangieson v. Henderson, supra.) Arid in Perrin v. Blake, 4 Burr. 2579, (3 Greenleaf’s Cruise on Real Prop. 313,) as finally decided in the Exchequer Chamber, it was admitted that the rule in Shelly’s case often defeats the undoubted intention of the devisor, “for,” it is said, “there never was an instance where an estate for life was expressly devised to the first taker that the devisor intended he should have any more. But if he afterwards gives an estate to the heirs of the tenant for life or to the heirs of his body, it is the consequence or operation of law that in this case supervenes his intention and vests the remainder in the ancestor.”- (Vangieson v. Henderson, supra; Carpenter v. VanOlinder, 127 Ill. 42; Hageman v. Hageman, 129 id. 164; Wolfer v. Hemmer, 144 id. 554.) In Ewing v. Barnes, 156 Ill. 61, on page 68 it was held: “Where a devise is made to a man and his heirs, neither the expressed intention that the devisee shall have an estate for his life and no longer; nor, secondly, that he shall have only an estate for life in the premises and after his decease it shall go to the heirs of his body, and in default of such heirs vest in the person next in remainder, and that the devisee shall have no power to defeat the intention of the testator; nor, thirdly, that the devisee shall be a tenant for life and no longer, and that it shall not be in his power to sell, dispose of or make away with any part of the premises, will change the word ‘heirs’ into a word of pechase.” Much stress is.laid upon the fact that the bill avers that the scrivener who prepared the will, as well as the testator, were unfamiliar with the use and meaning of technical legal language, and that William L. Deemer had an illegitimate child which the testator sought to exclude from taking under the will by the use of the term “lawful heirs,” and further, that it appears from the codicil the testator executed the same with a view to cut down the devise to William L. Deemer from a fee to a life estate. As the language in the will has a settled legal meaning we deem the extrinsic facts referred to of no importance, and as the testator, in framing the codicil, used language the legal effect of which was to vest in the son the fee, the intention thus expressed must control in giving a construction to the will, regardless of whatever unexpressed intention may have existed in the mind of the testator. The decree of the circuit court will be affirmed. Decree affirmed.