Winchell v. Winchell
| Decision Date | 15 October 1913 |
| Citation | 102 N.E. 823,259 Ill. 471 |
| Parties | WINCHELL et al. v. WINCHELL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, McDonough County; Harry M. Waggoner, Judge.
Action by Fannie Winchell and another against Gail Maxine Winchell. Decree for complainant, and the defendant brings error. Reversed and remanded, with directions.Wallace A. Walker, of Macomb, for plaintiff in error.
Elting & Hainline and George D. Tunnicliff, both of Macomb, for defendants in error.
John B. Standard died in 1889, leaving a last will and testament, which was admitted to probate, by which he devised many tracts of land to his sons and daughters, severally. The fourth paragraph of the will was as follows:
Fannie Standard was afterward married to Volney W. Winchell, and there was born to them one daughter, named Gail Maxine Winchell. Fannie Winchell filed her bill in the circuit court of McDonough county to the January term, 1911, against her daughter, Gail Maxine Winchell, and her brother, John Standard, and afterward filed an amended bill to the May term, 1911. The amended bill alleged that the defendant Gail Maxine Winchell was five years of age and claimed that by virtue of the will she was the owner in fee of the premises subject to the life estate of the complainant, and that the defendant John Standard, one of the heirs at law of the testator, claimed that he had a conditional estate by virtue of the limitation to the heirs of the testator in default of issue of the complainant. The prayer of the bill was that the complainant's title should be quieted and the claims of the defendants be removed as clouds upon the same. John Standard was defaulted. Wallace A. Walker, a solicitor of the court, was appointed guardian ad litem for the infant defendant, Gail Maxine Winchell, and answered for her. The chancellor construed the devise as vesting a fee simple title in the complainant, and found that no other person or persons had any interest in or title to the premises, in remainder, reversion, or otherwise. The fee-simple title was decreed to be in the complainant, and the executory devise in default of issue was ordered canceled and removed from the record as a cloud upon her title. The decree was pro confesso as to the defendant John Standard. The guardian ad litem sued out a writ of error from this court to obtain a review of the decree.
It is said by counsel that the opinion of the chancellor was that the devise came within the rule in Shelley's Case, and therefore vested a fee simple in the complainant, and that upon the birth of Gail Maxine Winchell the limitation over to the heirs of the testator was defeated, and counsel contend that each of those conclusions was correct.
[1] The rule stated in Shelley's Case was that ‘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.’
[2] That rule is in force in this state in all cases of limitations of a freehold estate to one with remainder to his heirs generally, and confers the inheritance on the ancestor; but it has been abolished as to estates tail by the sixth section of the ConveyanceAct. As to limitations controlled by that section, the only use made of the rule is for the purpose of determining whether by the common law a fee tail would have been created. If it would, the person who would have been seised in fee tail is seised for her or his natural life only, and the remainder passes in fee simple absolute to the person or persons to whom the remainder is limited. The testator in this case, in devising the property, devised to the complainant an estate of freehold and limited the remainder to her heirs, with the further limitation that in case she should die without issue the property should go to his other heirs.
[3] The word ‘heirs,’ in its legal sense, means those persons whom the law appoints to take intestate estate, and unless the word is qualified by the context it has always been given that meaning. In ordinary use, however, it is frequently given a different or limited meaning, and as the purpose of construing a will is to find the...
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...of the rule (in Shelley's Case) is for the purpose of determining whether by the common law a fee tail would have been created. ' Winchell v. Winchell, supra. Construction of section 6 chapter 30 was within the province of the Supreme Court of Illinois; and if, in interpreting the legislati......
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...will be given to the term as will carry out the intention of the testator. Smith v. Winsor, 239 Ill. 567, 88 N. E. 482;Winchell v. Winchell, 259 Ill. 471, 102 N. E. 823; Black v. Jones, supra. It is the established law of this state that where a life estate is devised to one of several heir......
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