Connor v. Gardner

Mr. Justice Vickers delivered the opinion of the court: . The question over which the most serious contention exists is, what interest, if any, did Mary Jane Connor take under the will of Joseph Berry ? The appellants insist that their mother took a life estate only, with remainder in fee to her children, and that by the partition and her subsequent conveyance to Clarke, and Clarke’s conveyance to appellee, only a life estate was conveyed, and that appellee and his grantors, being the owners of the life estate, could acquire no rights, by possession and payment of taxes, against the remáinder-men so long as the life estate existed; while, on the other hand, appellee contends, first, that Mary Jane Connor took no interest whatever under her father’s will, and that whatever interest she had in the premises she acquired by descent; second, that if any interest passed to Mary Jane Connor under the will it was an interest in fee, and not a mere life estate. It is therefore apparent that the determination of the rights of the parties to this controversy depends largely upon the construction to be given to the will of Joseph Berry. The testator resided at the time the will was executed, in 1850, on a farm on Flat creek, Bath county, Kentucky. He had a wife, Jane C. Berry, and five children—two sons, Joseph A. and James J. Berry, and three daughters, Elizabeth, Mary Jane and Ann Amelia Berry. At the time of his death he owned the farm on which he resided on Flat creek, containing about three hundred acres of land, and other real estate and a large amount of personal property in Kentucky. He also owned about twenty-five hundred acres of land in Sangamon county, Illinois, and considerable real estate in the State of Indiana. It will be seen by a careful reading of the will set out in the statement, that the fundamental difficulty arises out of the failure of the testator to malee any direct or explicit disposition of four-fifths of his estate. It will be noted that after providing for the payment of his just debts and a one-third interest in his estate for his wife, the testator gives absolutely to his son Joseph A. Berry, in fee, the farm on which the testator then resided, lying on Flat creek, containing about three hundred acres, reserving the right of dower to his wife therein if she survived him. Nowhere in the will is there any other express, specific devise of any of the real estate, either in Indiana or Illinois. A careful reading of the will, however, will disclose that the testator intended that his son Joseph A. Berry should have the Flat creek farm, and in case that farm was not equal to the shares remaining to be divided among his other children, the other shares should contribute to bring the value of Joseph A.’s share up to the value of the shares received by his other children; that if the Flat creek farm should exceed one-fifth in value it was not to be reduced; that from the share of James J. Berry $2212 was to be deducted on account of advancements made to him; that the shares of his three daughters were to be equal, and that such shares should be free from the control, debts or liabilities of their husbands, and that the executors of the will took a power in trust to control, rent, lease, sell and convey the property of said daughters. In construing the will such a construction should be adopted, if possible, as to prevent intestacy as to any portion of the estate. It is always presumed that the testator did not intend to die intestate as to any part of his estate. (King v. King, 168 Ill. 273; Minkler v. Simons, 172 id. 323; Craw v. Craw, 210 id. 246; Greenwood v. Greenwood, 178 id. 387.) The legal presumption in this case is strengthened by the clear expression by the testator of his intention to dispose of his entire estate, found in the first -sentence of the will, as follows: “Know all men whom it may concern, that.I, Joseph Berry, of Bath county, State of Kentucky, being of sound and deposing mind and desiring to make a disposition of my estate at my leisure, do now make it as follows.” The words “disposition of my estate” indicate a purpose to dispose of all his estate, and not a part of it. Again, referring to the Flat creek farm the testator says: “If the above named farm shall not be an equal share or portion of all my estate, including in the estimate the Paris and Bourbon property,” etc., thus showing that the testator had in mind his entire estate and contemplated an equal division of it among his children by his will. The intention of the" testator to make a full and complete disposition of his entire estate is further shown by the clause directing that “if any heir or heirs of mine shall institute against or go to law with another heir or heirs of mine respecting my estate or part thereof,” such heir should forfeit one-half of the estate that he would otherwise be entitled to; and also the provision that if “any difficulty or dispute should arise among any heirs of mine about my estate” the same should be determined by arbitrators chosen by the executors. If the testator failed to dispose of his entire estate by his will such failure is not due to any expressed intention to die intestate as to any part thereof. Having- determined what the intention of the testator was, the next matter requiring consideration is whether such intention is so expressed or implied in the words of the will as to carry into effect such intention consistently with the rules of law. As already pointed out, there is no direct or express devise of real estate to any of his children except Joseph A. Berry, but in our opinion the intention to devise the residue of his estate in equal parts to his four other children, less deductions from James’ share, is so manifest from the general testamentary scheme as gathered from the words of the will, that a devise by implication must be held to have been made. A gift is made, without any express words of gift, if an intention to give clearly appears from the will as a whole. (Rood on Wills, sec. 495.) A devise by implication cannot rest upon conjecture, but it is not required that the inference should be absolutely irresistible. It is enough if the whole circumstances, taken together, afford such an inference as leaves no doubt in the mind of the judge who has to decide, as to the intention of the testator. (Hartley v. Hurle, 5 Ves. 546; Bootle v. Blundell, 19 id. 517.) To uphold a legacy by implication, the inference, from the will, of the testator’s intention must be such as to leave no hesitation in the mind of the court and permit of no other reasonable inference. (Bradhurst v. Field, 135 N. Y. 564; 32 N. E. Rep. 115; Brown v. Quintard, 177 id. 75; 69 id. 225.) Referring to the shares of the daughters the will provides : “I further will and direct the shares or portions of my estate falling to my daughters, respectively, shall be theirs and their child’s or children’s exclusively,” etc. Again, referring to his daughter Ann Amelia, the testator uses this language: “I further direct that my daughter Ann Amelia, besides her equal slmre 'in all my estate, have and own her riding horse and saddle and a new ........ that is now in my house.” Of the fifteen or more times where the testator uses the word “share” or “portion” the above is the only place where the share is qualified by the word “equal.” In other parts of the will Ann Amelia’s share or portion is referred to simply as “her share” or “her portion,” but in the expression last above quoted the testator gives Ann Amelia her riding horse and saddle “besides her equal share in all my estate.” Can there be any reasonable doubt that the testator intended that Joseph A. should have the Flat creek farm, and, if necessary, enough to make it equal to a one-fifth share of his entire estate, and that he intended that his son James J. should have one-fifth, less the advancements made to him, and that the three daughters should each have one-fifth, and that Ann Amelia should, in addition thereto, have her riding-horse and saddle? It seems to us that the inference is so clear that the case is controlled by the rules relating to devises by implication. Appellants insist that the daughters of the testator took merely a life estate with remainder in fee to their children. This contention is based on the clause of the will which directs that “the shares or portions of my estate falling to the daughters, respectively, shall be theirs or their child’s or children’s exclusively,” the argument being that a devise to one and his “child” or “children” passes only a life estate to the first taker with remainder in fee to his children. Where a devise is made to a person and his children it may mean any one of three dispositions: (i) That the devisee named should have the whole estate; (2) that the devisee should have a life estate and a remainder in fee to his children; (3) that the devisee named, and .his children, should take jointly or as tenants in common. (Rood on Wills, sec. 552.) The word “children,” in a will, does not ordinarily mean “heirs” or “heirs of his body,” so as to bring the devise under the operation of the rule in Shelly’s case, unless the context of the will leaves no doubt of such intention. The word “heirs” is a word of limitation and not of purchase, and when used in a will its legal intendment is to designate a class of persons who are to take in succession, from generation to generation, and the law effectuates this purpose by declaring a fee to pass to the first taker, or, as it is sometimes expressed, by giving a life estate to the first taker and a limitation in fee to himself. (Kales on Future Interests, sec. 129; Schaefer v. Schaefer, 141 Ill. 337; Strawbridge v. Strawbridge, 220 id. 61.) The words “sons,” “daughters,” “child” and “children” are not technical, legal terms, to which a fixed and determined meaning must be given regardless of the sense in which they are employed, but they are flexible and subject to construction, to give effect to the intention of the testator. In Schaefer v. Schaefer, supra, this court gave the word “children,” where the same occurred twice in the same clause, directly opposite meanings, holding that in óne case it meant heirs and was a word of limitation, and in the other that it was a word of purchase. The rule in Shelly’s case often defeats the clearly expressed intention of the testator. In a devise to one for and during his natural life with remainder to his heirs in fee, the inexorable rule of the common law, from which courts cannot escape without legislative aid, requires them to set at naught the clearly expressed intention and decide that the testator gave a fee simple title to the first taker, although he expressly limited it to a life estate by apt words. When, however, the testator has used other words, such as “child” or “children,” the rule in Shelly’s case has no application, and the court is left free to adopt a construction which will carry into effect the intention of the testator. It is true, the intention, when discovered, may lead to the same result as is reached under the rule in Shelly’s case where the word “heirs” is used, but if this be so, it is because the intention is carried out by adopting such construction. It will never be so construed to defeat the intention, as may follow from the rigor of the rule in Shelly’s case. When the will in hand is considered in all its parts and each part compared with the other, we cannot escape the conclusion that the intention of the testator was to devise a fee simple title to each of his children. We reach this conclusion by considering that the testator gave a life estate expressly to his wife. This shows he appreciated the difference between a fee simple title and a life estate and was apprised of the proper method of creating the latter. He did not, by express words, create a life estate for his daughters as he did for his wife, from which an inference, of more or less strength, may be deduced that he intended something different for the daughters. Again, we find running through the whole will unmistakable evidence that the testator desired to deal equitably with his children. There can be no doubt that the devise to Joseph A. was a fee in the Flat creek farm. The other “shares” or “portions” were to be equal shares in his estate. The equality contemplated was not merely equality of quantity, but equality in value and character of the estate devised. It cannot be supposed that the testator intended to give Joseph A. a fee in the Flat creek farm, which was, it is fair to assume, improved and productive, and give his daughters only a life estate in a lot of cheap, non-productive prairie lands, such as much of Sangamon county was in 1850. These lands were only appraised at from $6 to $12 per acre in 1852. In fact, we do not see how it would be possible to procure the equality which was, as we conceive, the chief concern of the testator, unless we assume that it was the intention to pass the same quality of title to the daughters that was given to Joseph A. There is here clear manifestation of an intention to give an estate in fee. The rule adopted in Wilde’s case, 6 Coke, 17, would, if followed, probably lead to a different result; but that rule does not control in this State, since under our statute words of inheritance are not necessary to pass a fee. Davis v. Ripley, 194 Ill. 399; Strawbridge v. Strawbridge, supra; Boehm v. Baldwin, 221 id. 59. It is suggested that the provision that if any of his children should die childless her share or their shares should revert to the other children equally, distinguishes this case from Davis v. Ripley, supra, Strawbridge v. Strawbridge, supra, and Boehm v. Baldwin, supra. We do not see how this clause can have any effect, since the shares only revert in case the law does not otherwise dispose of the estate. The clause is modified by “except the law otherwise directs.” Of course, if the devisee should die childless and the law did not provide any other person to take the estate it would pass by descent to the surviving brothers and sisters, but if they should leave a surviving husband or parent the law of descent would direct otherwise, and the estate would not be distributed among the brothers and sisters equally. This clause tends to strengthen, rather than weaken, our conclusion that the testator intended to vest an estate of inheritance, for otherwise there would be nothing upon which the clause “except the law otherwise directs” could operate. Our conclusion is that the testator devised an equal portion of his real estate to each of his children in fee, and that Mary J. Connor, the mother of appellants, obtained a title in fee by the partition made among the children of Joseph Berry to the land in controversy, and when she conveyed the premises, in 1875, by general warranty deed, the title passed to her grantee. Appellants therefore have no interest in these premises, and the court properly decreed that their alleged claim was a cloud upon appellee’s title. The decree of the circuit court is affirmed. Decree affirmed.