Peacock v. McCluskey

Mr. Justice Thompson delivered the opinion of the court: Appellant, Marjorie Peacock, filed her bill in the circuit court of Christian county asking that the will' of her grandmother, Ann M. Johnson, be construed and that her rights under the will be determined and declared. The chancellor sustained a general demurrer to the bill and dismissed the bill for want of equity. This appeal is prosecuted to review that decree. By the third clause of her will testatrix made the following disposition of her real estate: “Third—I give, devise and bequeath unto my son, Edward G. Johnson, the following tract of land, situated in-Christian county, Illinois, [describing it,] to have and enjoy the use thereof during his natural life and at his death to be distributed among his heirs according to the laws of this State.” Construing this clause alone, Edward G. Johnson was given a life estate and under the rule in Shelley’s-case a remainder in fee in the lands devised. (Fowler v. Black, 136 Ill. 363; Vangieson v. Henderson, 150 id. 119; Wilson v. Harrold, 288 id. 388; DuBois v. Judy, 291 id. 340.) That rule is firmly established in this State as a rule of property. In Baker v. Scott, 62 Ill. 86, the first and leading case on the subject in this State, the rule is stated to be: “Where 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 heirs are words of limitation of the estate and not words of purchase.” The word “limitation,” as used in this rule, must be understood not in the sense of restriction but as a word describing the extent or quality of the estate conveyed, and “purchase” as any means of acquiring property other than by descent. With this understanding of the meaning of the terms “limitation” and “purchase,” the rule announced in Shelley’s case would read: When the ancestor by any gift or conveyance takes an estate of freehold and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the heirs are words describing the extent or quality of the estate conveyed and not words designating the persons who are to take it. (24 R. C. L. 892.) Hayes states the rule thus: “The rule in Shelley’s case says, in substance, that if an estate of freehold be limited to A with remainder to his heirs, general or special, the remainder, although importing an independent gift to the heirs as original takers, shall confer the inheritance on A, the ancestor.” (1 Hayes on Conveyancing,—5th ed.—542.) Appellant concedes that, construing clause 3 alone, the rule in Shelley’s case applies, but she contends that testatrix did not use the word “heirs” in the third clause as descriptive of all possible heirs of Edward G. Johnson, but that she used the oword “heirs” in a non-technical sense, as descriptive of a class less extensive than that designated by law, and she relies for this construction upon the language used in clause 2 of the will, which provides: “Second—To my beloved husband, Joseph W. Johnson, I have given the greater part of a life of devotion and service, and knowing that he shared with me the desire to provide for our children in case he survives me, I give to him ten dollars, which I desire he shall take in satisfaction of dower and all other claims, of whatsoever character, against the real estate conveyed in this will”’ The contention is that testatrix did not intend her husband to constitute one of the class described in the third clause as remainder-men, and that the word “heirs,” as used in the third clause, meant the heirs of Edward G. Johnson, except his father. Heirs contemplated by the rule in Shelley’s case are those of the whole line of inheritable blood, designating those who are to take from generation to generation. (Kales on Estates and Future Interests,—2d ed,—sec. 414; 24 R. C. L. 892; DuBois v. Judy, supra.) If the word “heirs” was used by the testatrix in the untechnical or limited sense, as contended by appellant, the rule does not apply. In determining the sense in which testatrix used the word “heirs” we must dismiss from our minds all reference to the rule in Shelley’s case, for it is strictly a rule of law and in no sense a rule of construction. (1 Fearne on Remainders, 188; Kales on Estates and Future Interests,— 2d ed.—sec. 441; Winter v. Dibble, 251 Ill. 200.) Recurring, therefore, to the fundamental principles for the construction of a will, we must determine the testatrix’s intention, for such intention must govern. (Munie v. Gruenewald, 289 Ill. 468.) In determining that intention, words must be given their ordinary meaning. Technical words are presumed to be used according to their technical meaning, and will be given that meaning unless it clearly appears that they were not used in that sense. There is always a strong legal presumption that the word “heirs,” when used, is used in its technical sense, as denoting the whole of the indefinite line of inheritable succession. (Carpenter v. Hubbard, 263 Ill. 571; DuBois v. Judy, supra.) On the other hand, it has been frequently held by this court that the word “heirs” in a will does not necessarily have a fixed meaning. It may mean children, or where there are no children it may mean some other class of heirs less than the whole line, if the context of the entire will plainly shows such to have been the purpose of the testator. (Smith v. Winsor, 239 Ill. 567; McGinnis v. Campbell, 274 id. 82.) The word “heirs” is generally a word of limitation, and is not to be construed as a word of purchase unless there are other controlling words showing such intention by the person using it, and if it is used as a word of limitation its effect is to mark out the estate granted. (DuBois v. Judy, supra.) If there is any repugnancy between the second and third clauses of this will, the third clause, being regarded as the later expression of the testatrix, must prevail. (Griswold v. Hicks, 132 Ill. 494; Harris v. Ferguy, 207 id. 534.) Applying these well established rules and giving consideration to the whole will, we are convinced that testatrix did not intend that her husband should be deprived of his rights as an heir of her son if the son died without issue. Having determined that testatrix used the word “heirs” in its techñical sense, then by the use of the term she brings the devise within the rule in Shelley’s case, and the court must apply the rule in determining the estate devised. Appellant is the daughter and only heir-at-law of Edward G. Johnson. Several years after the death of his mother Edward G. Johnson conveyed by quit-claim deed the land devised under clause 3 of the will in question to H. B. Grider, and appellee claims title by mesne conveyances from Grider. Edward G. Johnson died in November, 1918, and appellant contends that as his only heir-at-law she is vested, under the gift over in the third clause of testatrix’s will, with the fee simple title to the real estate in question. From what we have hereinbefore said it will be seen that this contention cannot be sustained. The chancellor properly held that appellant had no interest in the real estate in question and properly dismissed the bill for want of equity. The decree of the circuit court is therefore affirmed. Decree affirmed.