Smith v. Winsor

Mr. Justice Scott delivered the opinion of the court: The question is, what intention of the testator is evinced by the words used in his will ? These propositions are clear: First—The widow took a life estate in all the property of the deceased, with a limited power to dispose of the fee or corpus of the property. Second—The persons whom the testator designated in the third clause of his will by the words “my heirs-at-law” took a vested remainder in all his property, which was liable to be defeated, in whole or in part, by the exercise of the power of disposition possessed by the widow. Third—Upon the death of a man who is a resident of Illinois, -without descendants, leaving a widow, and being at the time of his death possessed of real estate in Illinois, his widow is, according to our law, one of his heirs-at-law, within the strict legal sense of that- term. Fourth—Where the testator uses in his will the expression “heirs-at-law” those words are to be given their technical meaning, unless, upon the reading of the entire will, it plainly appears that they were used in a different sense. The only question remaining for determination is, did the testator by the words “heirs-at-law,” as used in the third clause of his will, intend to exclude his widow and include only those heirs-at-law who were of his own blood ? In determining this question the will must be read from the four corners thereof, and while in this 'case the meaning of the words in question, in their legal sense, includes the widow, yet in the colloquial or popular sense the words are not ordinarily understood as including her. Appellees cite a number of cases, beginning with Holloway v. Holloway, 5 Ves. Jr. 399, holding that where a will devises and bequeaths property for life to one who is an heir of the testator, with remainder to the heirs of the testator, the mere fact that the life tenant is to have the use of all the property during life is not to be regarded as an indication that the testator intended to exclude the life tenant from among his heirs-at-law who would take the remainder. Appellants cite a number of cases which they regard as holding the contrary. We think the weight of authority establishes the rule for which the appellees contend. From Johnson v. Askey, 190 Ill. 58, it appears that there is an exception to this rule where the life tenant is the sole heir and the remainder is devised to “heirs” of the testator. In such case, persons who take as heirs are those who answer the description upon the death of the life tenant, the latter being excluded. We do not regard the case at bar as falling within that exception,—rát least not so far as the real estate is concerned, which, alone, is involved in this suit. If there was nothing in this will except the fact that the widow was given a life estate in all the property upon which to base an argument that she was not to take an interest in the realty as. a remainder-man the authorities cited by appellees would require an affirmance of the decree. But we think there is something more. The will presents a double aspect, in that it provides for the contingency of the testator surviving his wife and for the contingency of the wife surviving the testator. By the fourth clause, if the testator survived, then the property, at his death, was to go to his heirs-at-law, which would exclude from all share therein the heirs of his wife. By the third clause, which provides for the disposition of the property in the event the wife survived, the wife had the use of all the property so long as she lived. She had unlimited power to sell and re-invest the proceeds. She had the right to use and enjoy the proceeds of any sale in any way she should desire for her comfort or advantage, or to use the same for any charitable purpose that she deemed worthy. Her power to consume the property for her own support, comfort and enjoyment was unlimited. Her power to dispose of it for such charitable purposes as she should deem worthy was unlimited, but she was not by the will granted any power to make a gift of the property for other than such charitable purposes or to dispose of it by will for any purpose whatever. So far as the use of the property for her own support and comfort and the gratification of her wishes to contribute, to charitable purposes which, she deemed worthy was concerned, her right was not less than it would have been had she been given the absolute fee. It seems to us, the intent of the testator, stated in general terns, was this: that the property be used and disposed of, to the fullest extent, for the purposes of himself and wife so long as they lived, provided, only, that in the event his wife survived him she should not have the power to give the property away except to a charity deemed worthy by her and she should not have the power to dispose of it in any manner by will; that, subject to such use and disposition of the property by himself and his wife, it should pass to his heirs-at-law who were of his blood. On appellees’ theory of the case, his purpose was to so devise and bequeath his property as that when he and his wife had both passed away, that which remained would go to his blood in case he survived his wife, but if he did not survive his wife, then, subject to the use and disposition his wife might make of the property, a large portion of it should pass to the heirs of his wife. We cannot think that it was his purpose to so lessen the property passing to his own blood merely upon the event of the wife surviving. It. is also said that his purpose was, if his wife was the survivor, to provide for her in the generous manner in which he did, and then, having but little further interest in the property, to abandon it to the law and let it pass as it would have done under the Statute of Descent. But it may as well be said that his purpose was that the property, subject to his widow’s rights and the exercise of her powers, should pass only to heirs of his blood. Either conclusion necessarily rests upon the meaning which he attached to the term “heirs-at-law.” It has frecpuently been held by this court that the word “heirs” in a will does not necessarily have a fixed meaning. It may mean children. If it may mean children, it may also, where there are no children, mean some other one class of heirs, (not including all the heirs,) if the context of the entire will plainly shows such to have been the purpose of the testator. In the construction of a will greater latitude is allowed than in the construction of a deed, (Webbe v. Webbe, 234 Ill. 442,) and while, as above stated, the technical meaning of the word is the one which prima facie should prevail, yet such meaning will not be given effect to the extent of defeating an obvious general intention of the testator. (Blackmore v. Blackmore, 187 Ill. 102; Johnson v. Askey, supra.) “Heirs” and “heirs-at-law” are in a legal sense the same. In this case we are satisfied, from all the' words used in this will, that the general scheme or intention of the testator was that his heirs-at-law who were of his blood should have such portion of his property as remained after the death of himself and wife. It seems plain to us that the words “heirs-at-law” were used by the testator in their colloquial or popular meaning and not in their technical sense. This excludes the wife. Accordingly the decree of the superior court will be reversed and the cause will be remanded, with directions to sustain the demurrer to the bill. Reversed and remanded, with directions.