Kaup v. Weathers

Mr. Chief Justice Stone delivered the opinion of the court: This is a bill for partition filed by appellants, cousins of William A. Earp, deceased, claiming an interest in the land involved as heirs of Earp, who took, as they claim, a life estate in said land under the will of Priscilla B. Earp, deceased. Earp died testate, and by his will certain of the appellees were made legatees thereunder. He left surviving no widow, children or descendants of a child, no father or mother, his only heirs being the complainants, described as cousins. By his will he directed the sale of said lands and the distribution of the proceeds among numerous named legatees. The question involved is as to the character of estate which Earp had in the property sought to be partitioned. Appellants claim that he had but a life interest therein, and that they, as his heirs, have the remainder in fee. Appellees claim that he had the fee to the land, and that appellants, by reason of his will otherwise disposing of the property, have no interest therein. The character of the estate held by William A. Earp is to be determined by the construction of the second clause of the will of Priscilla B. Earp. That clause is as follows: “I give, devise and bequeath to my son, William A. Earp, all my real estate of every kind and description, which comprises my farm and my homestead, to have and to hold the said real estate, together with the rents, issues and profits thereof, unto the said William A. Earp for and during the term of his natural life, and at his death said real estate shall descend to and become the property in fee simple of the legal heirs of the said William A. Earp, and their heirs and assigns forever.” In the construction of this clause of the will the question to be determined is whether or not the rule in Shelley’s case applies to the language used therein. Appellants contend that it does not, and assign as a reason for such contention that the superadded words, “and their heirs and assigns,” following the words “legal heirs of the said William A. Earp,” show that the word “heirs” is not to be taken in its unrestricted sense as being the description of an indefinite line of inheritance, but rather as those who are to take on the death of Earp- as a new stock of descent. The rule in Shelley’s case is a rule of property and not one of construction. It has been defined as follows: “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, either in fee or in tail, ‘the heirs’ are words describing the extent and quality of the estate conveyed, and not words designating who are to take it.” i Hays on Conveyancing, — 5th ed. — 542; Peacock v. McCluskey, 296 Ill. 87. Appellants concede that the words “legal heirs of the said William A. Earp,” standing alone, would bring this devise clearly within the rule in Shelley’s case, but they contend that the words “and their heirs and assigns” are a limitation as to who is to take, and indicate that the words “legal heirs” are used in other than their technical sense. A testator may use the word “heirs” in the sense of children, or the language of the instrument may indicate that the words of inheritance are not used according to the legal import, to include the whole line of inheritable blood of the ancestor as a stock of descent, but have been used in a restricted and untechnical sense to designate individuals to whom a distinct estate is given, and from whom, as its origin, the descent is thereafter to be derived. (DuBois v. Judy, 291 Ill. 340.) “Heirs,” in the legal meaning of the term, are “those persons, whoever they may be, upon whom the law at the death of the ancestor would cast the inheritance, thus including all possible heirs to take in succession from generation to generation under the name of heirs of the ancestor.” Fowler v. Black, 136 Ill. 363. Under the operation of the rule in Shelley’s case, where there is a gift of a life estate to the ancestor with remainder in fee to his heirs as a class, without reference to individuals or without attaching any condition to the devise, the fee thus given to the heirs by operation of the rule vests in the life tenant, and he is thus given the fee to the property, without regard to what the intention of the testator may have been as to the estate to be granted or devised to such ancestor. Carpenter v. Hubbard, 263 Ill. 571; Winter v. Dibble, 251 id. 200; Bails v. Davis, 241 id. 536. No case appears to have been before this court in which the exact language herein used is to be found, — that is, where the word “heirs,” used as a word of limitation and meaning heirs in general, has been followed by the super-added words, “heirs and assigns,” as herein used. Appellants rely upon the case of Ætna Life Ins. Co. v. Hoppin, 249 Ill. 406, in support of their contention that the rule in Shelley’s case does not apply to the devise in this will. That case is to be distinguished from the case at bar in that there the devise, after giving a life estate to Franklin and Sarah Hoppin, provided, “and at the death of the survivor of them, to the heirs of the body of Sarah Hoppin, their heirs and assigns.” It was held that the remainder being to the heirs of the body was not a grant to the general heirs of the ancestor but to a restricted class, and that “heirs of the body” were not words of limitation denoting the extent or character of the estate granted to the first taker, but were words of purchase descriptive of the persons who were to take the remainder upon the termination of the life estate, the holding being based upon the position that section 6 of the Conveyance act in abolishing estates tail likewise abolished the rule in Shelley’s case as applied to such estates, — citing in support of that position Baker v. Scott, 62 Ill. 86, and Butler v. Huestis, 68 id. 594. It is to be seen at the outset that the distinction between the Hoppin case and the case at bar is fundamental, in that the devise in the former was made to a restricted class denoting certain individuals, — not to the whole line of inheritable blood, — who were to take, while in the instant case it is conceded that the words “legal heirs of the said William A. Earp” indicate the whole line of inheritable blood. No other conclusion, therefore, could have been reached in the Hoppin case. While this precise language has not been before this court it has been before the courts of other jurisdictions in this country. In Schoonmaker v. Sheeley, 3 Denio, 485, the devise was to the-son of the testatrix “during his natural life and after his death to his heirs and their heirs and assigns forever.” It was there held that the word “heirs,” as first used, was a word of limitation, and that the son, by force of the rule in Shelley’s case, took the premises in fee simple, and that the superadded words of limitation, “and their heirs and assigns forever,” did-not take the case out of the operation of the rule. In that case numerous English cases are reviewed. The decision in that case is based on the reasoning that since the superadded words of limitation, “and their heirs and assigns,” do not in any way add to or change the direction of the estate but leave it to descend to the heirs general of the ancestor in the same manner as if the superadded words had not been inserted, such words do not have the effect of taking the case out of the operation of the rule, — again drawing the distinction existing between this case and the Hoppin case. In Physick’s Appeal, 50 Pa. 155, the will made a devise to the ancestor for life, with remainder to his “right heirs” and their heirs, executors, administrators and assigns. It was there held that the devise was within the rule in Shelley’s case; that there was nothing in the will to show that the testator did not use the words of limitation, “right heirs,” in their proper sense, except the superadded words of limitation, and that such words were not sufficient. The test is there declared to be whether or not in the gift of the remainder the testator used the term “right heirs” in its legal and ordinary sense or as descriptive of certain persons and to indicate a root of new succession It is there said that in the use of the technical words of limitation a strong presumption arises of an intention that the remainder-man shall take by descent and not by purchase; that while such presumption can be overcome, it must be by evidence of a contrary intent so clear as to leave no reasonable doubt. To the same effect is McCann v. McCann, 197 Pa. 452. In Andrews v. Lowthrop, 17 R. I. 60, the language of the devise was practically the same as in the case at bar, and the rule in Shelley’s case was there held to apply. In DeVaughn v. Hutchison, 165 U. S. 566, the devise was to “Martha Ann for life and at her decease to her heirs begotten of her body and to their heirs and assigns.” It was there held that while the word “heirs” includes persons in all generations belonging to the class designated by the law as heirs and is a word of limitation, yet where, as in that case, the devise was to the ancestor for life and at her decease to her heirs begotten of her body, such a devise was to a restricted class, and that such limitation showed that it was the intention of the testator that the children of Martha Ann should become the root o'f a new succession and take as purchasers and not as heirs. In Archer’s case, 1 Coke, 66b, the estate was devised to Robert Archer for life and after his death to the next heir male of Robert and to heirs male of the body of such next heir male; and it was held that such devise formed a new stock or root of inheritance in the first heir male of Robert, excluding all other issue male of Robert from the inheritance. That case, it is seen, does not hold that had the first limitation been to the heirs general of the testator’s son Robert the rule in Shelley’s case would not have applied. In fact, the reasoning in the case supports the contrary view. While the word “heirs” may be used by the testator in other than the technical sense, it has been many times held by this court that it is presumed to be used according to the technical sense, and will be given that meaning unless it clearly appears that it is not used in that sense. (Peacock v. McCluskey, supra; Carpenter v. Hubbard, supra; DuBois v. Judy, supra; Sellers v. Rike, 292 Ill. 468.) The rule, supported by reason and authority, may therefore be said to be, that superadded words of limitation, when en-grafted on words of procreation, do not operate to turn such words into words of purchase unless the superadded words denote a different species of heirs than that described by the first words, thus showing an intent to break the ordinary line of descent from the first taker. The word “heirs” has repeatedly been held to be a word of limitation where not used to describe individuals of a limited number but to designate heirs generally or a whole line of heirs in succession from generation to generation. (Carpenter v. Van-Olinder, 127 Ill. 42; Ryan v. Allen, 120 id. 648.) There is nothing in this will to indicate that the line of inheritable succession is to be changed by the use of the super-added words, “their heirs and assigns.” As was said by this court in Winter v. Dibble, supra: “Words added can not be said to qualify an expression if the expression means the same thing with the words added as without.” We aré of the opinion that the devise was to William A: Earp and his heirs without qualification and that a fee in the estate was devised to him. (Hageman v. Hageman, 129 Ill. 164; Fowler v. Black, supra; Ewing v. Barnes, 156 Ill. 61.) The lands therefore passed under the will of Earp and the appellants have no interest therein. The circuit court did not err in so holding. The decree of the circuit court is therefore affirmed. Decree affirmed.