Henkins v. Henkins

Mr. Justice Dunn delivered the opinion of the court: Adam B. Henkins died leaving a will, by which he disposed of two hundred acres of land in Putnam county in the following language: “Sixth—I hereby give and bequeath to my son Adam Henkins the use, possession, occupancy, income, control and enjoyment, for the term of his natural life, the following described real estate, to-wit: [describing it.] He, my said son Adam Henkins, to use, possess, control, enjoy and to have and to hold the same for and during the term of his natural life. And I do hereby give, bequeath and devise all of the aforesaid real estate described in this sixth section of this will to the children of said Adam Henkins, subject only to the aforesaid life estate therein, they, the said children of the said Adam Henkins, to have and to hold the same, subject to said life estate, unto themselves, their heirs and assigns forever.” * * * “Bleventh—It is my will, and I do hereby order and direct, that in the event any of my said four (4) children to whom I have in and by section second, third, fifth, sixth and eighth sections of this will respectively given and bequeathed life estates in and to the said real estate in said respective sections described, as aforesaid, should die without leaving child or children, lawful issue, him or her surviving, then in such case said described real estate the life estate of which was in such child of mine under this will shall, after the death of such child, be deemed and taken as intestate estate belonging to my estate and shall be distributed in the same manner as the estate of an intestate.” The testator’s heirs were his three sons, a daughter and four grandchildren, the children of a deceased son. The life tenant, Adam Henkins, died after the testator, leaving a widow, Alice L. Henkins, but never having had a child. Thereupon three of the testator’s grandchildren filed a bill for the partition of the two hundred acres of land, claiming that upon the death of Adam Henkins, the life tenant, the title to the land passed under the will of Adam B. Henkins to his heirs as if he had died intestate after the death of his son Adam, and that Alice L. Henkins, the son’s widow, had no interest in the land. She answered the bill, claiming the fee in one-tenth of the land and dower in another one-tenth, but the court upon a hearing found the interests as claimed by the complainants and decreed a partition of the land, awarding no part to Alice L. Henkins. She has appealed from this decree. The controversy arises out of the construction of the eleventh paragraph of the will, which provides that if Adam Henkins should die without leaving a child surviving, the land should after his death “be deemed and taken as intestate estate belonging to my estate, and shall be distributed in the same manner as the estate of an intestate.” The appellees contend that the testator by this language meant that the land should be distributed to the persons who were his heirs after the death of the life tenant, and that the will should be construed as though it directed the estate to be distributed in the same manner as though the testator had died intestate after the death of the life tenant. The sixth paragraph of the will gives a life estate to the testator’s son Adam with remainder to his children. Since the son had no child the remainder was contingent. On the birth of a child it would have become vested but for the modification in paragraph n of the will, which made the remainder contingent upon the child surviving the father. In the event this contingency should not happen the remainder was disposed of by the language which directed that it should be distributed in the same manner as the estate of an intestate. This was, in legal effect, a devise to the testator’s heirs, who are the persons appointed by law to receive the estate in case of intestacy. A will speaks from the death of the testator, and a devise to the heirs of the testator is held to apply to those who are his heirs at his death, unless the intention is plainly manifested in the will to refer to those who shall be his heirs at some subsequent time; and this construction is not changed by the fact that a life estate may precede the bequest to the heirs-at-law, that the life tenant is one of the heirs to whom the remainder is devised, or that the devise to the heirs is contingent on an event which _ may or may not happen. (Kellett v. Shepard, 139 Ill. 433; Harrison v. Weatherby, 180 id. 418; Downing v. Grigsby, 251 id. 568.) There are no words in the will indicating an intention of the testator different from that expressed by the ordinary meaning of the words. He directs that after the death of his son Adam without leaving issue surviving, the land shall be deemed and taken as intestate estate belonging to the testator’s estate and should be distributed in the same manner as though he died intestate. The words “after the death of such child” refer not to the time of ascertaining the persons who may be entitled to the estate but to the time when the estate shall be distributed. (Downing v. Grigsby, supra; Lynn v. Worthington, 266 Ill. 414.) The rule is, that when the will speaks of a devise as taking effect after or upon the death of the tenant of the particular estate, such words will ordinarily, if standing alone in the will, be construed as referring to the time when the estate will vest in possession, only. (Clark v. Shawen, 190 Ill. 47.) The will directs that the estate shall be distributed in the same manner as the estate of an intestate,—not in the same manner as the estate of an intestate dying after the life tenant. The estate of the testator, if he had died intestate, would have been distributed to his three sons, his daughter and his four grandchildren. By his will he directed that the remainder in the land devised to his son Adam should be so distributed if Adam died leaving no child. Adam was one of the heirs entitled to share in this distribution and upon his death the right descended to. his heirs. They were his wife, his two brothers, his sister and his deceased brother’s four children. His widow, under the will, was entitled to one-half his one-fifth interest in the remainder, or one-tenth of the land, in fee. She was not entitled to dower in the other half. The interest of Adam Henkins in the remainder was subject to be defeated by the birth of issue which would survive him, and his possession was only that of a tenant for life and not that of a freeholder of an estate of inheritance, which was necessary to the right of dower in his widow. The decree will be reversed and the cause remanded, with directions to enter a decree in accordance with the views expressed in this opinion. Reversed and remanded, with directions.