Dorsey v. Dodson

• Decision Date: 24 April 1903
• Parties: DORSEY et al. v. DODSON et al.
• Court: Illinois Supreme Court

203 Ill. 32

67 N.E. 395

DORSEY et al.

v.DODSON et al. ^*

Supreme Court of Illinois.

April 24, 1903.

Appeal from Appellate Court, Third District.

Proceedings to settle the estate of Bartow W. Green, deceased. From an order of the Appellate Court (104 Ill. App. 589) affirming in part an order of the circuit court directing a certain division of the estate by Joseph Dodson as executor thereof, and in part reversing said order, Howell M. Dorsey and another, as heirs at law of a legatee under the will, whose death preceded testator's, appeal. Reversed.R. E. Dorsey and E. W. Hayes, for appellants.

Jesse Peebles, David E. Keefe, Bell & Burton, and Goodrich, Vincent & Bradley, for appellees.

CARTWRIGHT, J.

Bartow W. Green, a bachelor, died December 16, 1898, leaving a last will and testament, which was admitted to probate in the county court of Macoupin county. There are many bequests and provisions in the will, but the only ones to which this litigation relates are the following: The testator gave to his brother, John J. Green, during his natural life, the income of $10,000, to be paid by the executor, the principal to be distributed after the termination of the life estate, as therein directed. To his sister Henrietta Dorsey he gave $5,000, and the like sum of $5,000 to his sister Fanny Knapp. He provided that the executor should sell all real estate necessary to pay and discharge all the bequests in the will which could not be paid out of his personal estate, and he finally disposed of the residue of his real estate and personal property by separate clauses of the will-the nineteenth and twentieth. The nineteenth directed the executor to sell the residue of his real estate, and turn over the proceeds, whether money, notes, mortgages, or other property, to his said brother, John J. Green, and his sisters, Henrietta Dorsey and Fanny Knapp, to be equally divided between them, share and share alike. The twentieth gave all the residue of his personal estate not otherwise disposed of in the will, after the payment of bequests, debts, and expenses, to his said brother, John J. Green, and his sisters, Henrietta Dorsey and Fanny Knapp, to be equally divided between them, share and share alike. Henrietta Dorsey died in the lifetime of the testator, and John J. Green died after the death of the testator, before any sale or distribution under the will had been made. Upon an application of the executor for an order of distribution of the property of the estate there was a controversy concerning disposition of the shares of said John J. Green and Henrietta Dorsey. The county court decided that the legacies of John J. Green did not lapse, and that his estate should receive the same, but that all the legacies and provisions for Henrietta Dorsey did lapse; that the legacy of $5,000 to her and her one-third of the proceeds of the sale of the residue of the real estate, under the nineteenth clause, should both go into the residue of the personal estate to be divided under the twentieth clause, and that, after Fanny Knapp and the estate of John J. Green had each taken one-third of the residue as swelled by such additions, the remaining one-third lapsed and became intestate estate. The executor was ordered to pay one-third of the proceeds of the sale of real estate to Fanny Knapp, one-third to the estate of John J. Green, and to put the one-third of Henrietta Dorsey and her legacy into the residuary fund, and divide such residuary fund, one-third to Fanny Knapp, one-third to the estate of John J. Green, and the remaining third to be distributed as intestate property, according to the laws of descent. Appellants, Howell M. Dorsey and Lucy G. Hayes, the heirs of Henrietta Dorsey, appealed to the circuit court. That court agreed with the county court that the gifts to John J. Green did not lapse, and that the legacy of $5,000 to Henrietta Dorsey lapsed by her death in the lifetime of the testator, and went into the residue of the personal estate under the twentieth clause, but held that the residue of the real estate ordered by the nineteenth clause to be sold was to be converted into personal property for the purpose of the will only, and that when the gift of one-third thereof to Henrietta Dorsey lapsed it became intestate property, to be distributed to the heirs at law of the testator. The executor was ordered to distribute to the heirs at law one-third of the proceeds of the real estate, and to put the $5,000 legacy to Henrietta Dorsey into the residuary fund under the twentieth clause, giving one-third of it to Fanny Knapp, one-third to the estate of John J. Green, and distributing the remaining third as intestate property. Appellants again appealed to the Appellate Court, which settled the rights of the parties the same as the county court, affirming the order of the circuit court as to the legacy of $5,000, but reversing it as to the one-third of the proceeds of the real estate given to Henrietta Dorsey. The circuit court was directed to enter an order in accordance with that conclusion of the Appellate Court. This further appeal was prosecuted from the judgment of the Appellate Court.

The testator, having given specific legacies to his brother, John J. Green, and each of his two sisters, Henrietta Dorsey and Fanny Knapp, and having provided that the executor should sell such real estate as might be necessary to pay and discharge those legacies and the...