Baker v. Scott

• Decision Date: 30 September 1871
• Citation: 62 Ill. 86,1871 WL 8329
• Parties: FREDERICK BAKER et al.v.MARY S. SCOTT.
• Court: Illinois Supreme Court

62 Ill. 86

1871 WL 8329 (Ill.)

FREDERICK BAKER et al.

v.MARY S. SCOTT.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Stephenson County; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. J. A. CRAIN, for the appellants.

Mr. HENRY C. HYDE, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

The determination of this cause depends upon the effect of the terms used in the will of Orestes H. Wright, which are as follows:

“After all my honest debts are paid, it is my desire that what property is left should be shared equally between my dear and lovely wife, Mary M. Wright, and my dear children, each one-third; that my wife shall retain her third till her death, and then it shall descend to her natural children; and it is my wish that both of my children shall receive a good moral education, which shall be paid out of the rents or interest of property, or dividends of profits of railroad stock, so that the principal shall not be diminished, as there will be amply sufficient. Should my son William be a steady, sober, and industrious young man, as I hope and pray he will be, it is my wish that he should have the rents and profits of his share of the estate after he is twenty-one years old, until he arrives at twenty-five years of age, and then to come into full possession of the principal, and not before; but should he not be a temperate, sober man, it is my desire that it be so fixed, that he shall receive, year by year, the profits only, and that the principal descend to his heirs; and it is my desire that my daughter, Mary Sophia, shall receive so much of her share of the rents and profits as shall be necessary for her education, until she is twenty-three years of age, after which she may come into possession of the full amount of rents and profits, the principal to descend to her heirs. It is my desire that my executors and the guardian should consult the best interest and welfare of my wife and children in the management of the estate, and use their best discretion.”

Mary Sophia, the devisee named in the above clause, intermarried with John Scott, and they, on the 21st day of March, 1868, executed to Frederick Baker, one of the appellants, a deed, in consideration of the sum of eight hundred and seventy-five dollars, for one of the tracts of land of which her father, O. H. Wright, died seized, and which had been set off and allotted to her in certain partition proceedings instituted by her against the widow, Mrs. Wright, and her brother, William, she claiming the fee therein. To secure the payment of six hundred and seventy-five dollars, part of the purchase money, Baker executed his two notes, and a mortgage on the land.

The notes not being paid, Mary S. Scott filed her bill in chancery to foreclose the mortgage, and for a decree that the land be sold, and that Clarinda Baker may be barred of dower.

The defendant Frederick Baker, answered, admitting the execution and delivery of the notes and mortgage as set forth in the bill, and alleges that he purchased the land, the consideration money expressed in the deed being its full value, and paid in cash two hundred dollars, and received a conveyance in fee, with the usual covenants of warranty, from complainant and her husband, and then alleges, that complainant deriving her title to the land through the devise of her father, she took, by that devise, a life estate only in the land; and her conveyance to the defendant carried that estate only to him, and that he should be compelled to pay on the notes and mortgage the present value of the estate so vested in the complainant at the time of her conveyance, deducting therefrom the purchase money paid, and alleging that such present value, after such deduction left nothing due on the notes and mortgage. The defendant also filed a cross-bill, alleging in substance the same facts, and praying the cancellation of the notes and discharge of the mortgage.

In answer to the cross-bill, complainant admitted all the material allegations of the same, except that part of it which claimed for her a life estate by the will, she insisting that by the terms of the devise the fee was vested in her.

The court decided complainant had a fee simple in the land, under and by virtue of the devise, and decreed a sale of the premises to satisfy the notes and mortgage.

To reverse this decree the defendants appeal, and contend that, by the devise, a life estate only was vested in complainant. Appellee contends that the words used in the will fall within the rule in Shelly's case; and that is the question before us. Another point is made by appellants, and that is, if the devise is within the rule in Shelly's case, that rule is not in force in this State.

The first point to be settled is, what is the rule in Shelly's case?

That case arose in the twenty-third year of the reign of Elizabeth, about the year 1579, near three hundred years ago, and is reported in 1 Coke's Rep. side paging 93 b., wherein, among other rulings, it was held, 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.

Preston, in his elaborate treatise on “Estates,” devotes a chapter of near two hundred pages, to a critical and searching analysis of this rule, and says the rule may be thus expressed: First. When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and afterward, in the same deed, will, or writing, there is a limitation by way of remainder, with, or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally, or his heirs of his body, by that name in deeds or writings of conveyance, and by that, or some such name in wills, and as a class or denomination of persons to take in succession from generation to generation, the limitation to the heirs will entitle the person or ancestor himself to the estate or interest imported by that limitation.

He expresses the rule secondly, thus: Whenever the ancestor takes an estate of freehold, or frank tenement, and an immediate remainder is thereon limited in the same conveyance to his heirs or heirs in tail, such remainder is immediately executed in possession, in the ancestor so taking the freehold, and, therefore, is not contingent or in abeyance.

A third, and still more accurate expression of the rule is, as we have stated it at the outset, taken from the ruling of the court, as found in the reported case.

The author further says, this rule has been expressed with greater precision by one of the very able counsel, Sergeant Glynn, in Perrin v. Blake, to be “in any instrument if a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his body he takes a fee tail; if to his heirs, a fee simple.” 1 Preston on Estates, 263, 4, 5.

This rule is venerable for its antiquity, having received the sanction of the highest courts in England as far back as the 18 of Edward II., and is based on their authority, as found in the year books of that and subsequent reigns.

This we gather from the able argument of Mr. Justice Blackstone, in the opinion delivered by him in the Court of Exchequer, in the celebrated case of Perrin et al. v. Blake, first reported in 4 Burrow, 2579, but more fully in 3 Greenleaf Cruise on Real Property, 313.

That was a case arising under the will of William Williams, and the question arose upon a demurrer to a replication in an action of trespass. It was there held by three judges against one, that the legal operation of the word heirs, as a limitation, might be controlled by the manifest intent of the testator, and be construed into the description of a purchaser. In the will in question was this clause, “It is my intent that none of my children shall sell his estate for longer than his life, and to that intent, he gives all his estate to his said son, John, and said infant for their lives, remainder to trustees to preserve contingent remainders, remainder to the heirs of the bodies of his said sons,” etc.

Three of the judges held that “heirs” must be construed a word of description, and the heir would take the inheritance as a purchaser, and, therefore, John took only an estate for life.

On a writ of error to the Exchequer chamber the case was there elaborately argued, and six of the seven judges concurred in overruling the judgment of the King's Bench, giving full effect to the rule in Shelly's case.

It was on that occasion the able and elaborate argument of Mr. Justice Blackstone was delivered. The suit was pending more than thirty years, the judges giving their opinions seriatim on the 29th of January, 1772, more than one hundred years ago. This case was taken to the House of Lords by the defendant. While pending there it was compromised.

The leading question in the case, for no one disputed or doubted the rule in Shelly's case, was, “Whether a testator's manifest intent might control the legal operation of the word heirs as a limitation?”

Even Justice Blackstone, in delivering his opinion, said he agreed with the King's Bench that if the intent of the testator manifestly and certainly appeared by plain expression, or necessary implication from other parts of the will, that the heirs of the body of A should take by purchase, and not by descent, then a devise to A for life, and after his decease to the heirs of his body, not only might, but must, be construed an estate in strict settlement; but he thought it did not manifestly and certainly appear from the mere intended restraint of the power of alienation in A, that the testator had meant that the heirs of A's body should take by purchase and not...