Baley v. Strahan
| Decision Date | 04 December 1924 |
| Docket Number | No. 15911.,15911. |
| Citation | 145 N.E. 359,314 Ill. 213 |
| Parties | BALEY v. STRAHAN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Cora E. Baley against John H. Strahan and another. From a decree of dismissal, plaintiff appeals.
Affirmed.Appeal from Circuit Court, Adams County; Harry Higbee, Judge.
John E. Wall, of Quincy, and Scofield & Bell, of Carthage, for appellant.
Govert & Lancaster, of Quincy, for appellees.
An amended bill, in lieu of an original bill of complaint, was filed in the circuit court of Adams county by Cora E. Baley, the appellant, against John H. Strahan and Andrew J. Strahan, the appellees, for the partition of certain real estate in that county. A demurrer to the amended bill was sustained. Appellant stood by her amended bill, which was dismissed at her costs. This appeal followed.
Peter Strahan died testate in Adams county on June 4, 1914, leaving him surviving Ellen Strahan, his widow, Cora E. Baley, the appellant, his daughter, John H. Strahan and Andrew J. Strahan, the appellees, his sons, and Margaret E. Strahan, another daughter, his only heirs at law. His will was probated on July 22, 1914. By the first section of his will he directed the payment of his debts; by its second section he bequeathed to his wife all his personal property, including money, to be taken by her in lieu of her award; by the third section he gave to his wife ‘all the use, rents and income of the northwest quarter of the northwest quarter of section 13 and the northeast quarter of the northeast quarter of section 14, * * * to have and to receive the same during her natural life, in lieu of any other rights that she may have by law in real estate’; and by its fourth and fifth sections, respectively, he gave to his son Andrew J., an appellee, and to his daughter Cora E. Baley, the appellant, each ‘$1,000, payable after the death of my wife.’ The sixth section of the will, which is in controversy here, reads:
By the seventh section the testator devised the northeast quarter of the northeast quarter of section 14 ‘to my son John H. Strahan, to have and take possession of the same after the death of my said wife, Ellen Strahan.’ John H. Strahan was appointed executor. After the probate of her father's will, on May 2, 1917, Margaret E. Strahan conveyed to her brother John H. Strahan, one of the appellees, by quitclaim deed dated that day, the land devised to her by the sixth section of the will. Ellen Strahan, the widow,died in 1919 or 1920. Margaret E. Strahan died shortly after the death of her mother.
The question at issue is whether Margaret E. Strahan had any alienable interest in the property at the time of her conveyance to her brother John H. Strahan. Appellant contends that by the will Margaret E. Strahan took only a contingent remainder, while the appellee John H. Strahan insists that the remainder was vested, the possession only being postponed, and that Margaret E. Strahan's interest was subject to divestiture in the event that she died before her mother. If the remainder became vested in Margaret E. Strahan upon her father's death, the quitclaim deed conveyed her interest, nothing remained to descend to her heirs at law upon her death, and consequently there would be nothing to partition.
[1] The court will consider the will and all its parts in their relation to each other, to ascertain the intention of the testator in any particular provision, and give effect to such intentionif it can be done consistently with the law. By the third section the widow was given ‘all the use, rents and income’ of the real estate devised, ‘to have and to receive the same during her natural life, in lieu of any other rights that she may have by law in real estate.’ This section only purports to make provision for the widow during her life, without any suggestion of the vesting of the remainder. The testator devised the remainder in one tract unconditionally to his son John. The remainder in the other tract he devised to his daughter Margaret in the same language, but he added a sentence to the effect that, if Margaret died before his widow, the tract devised to Margaret should pass and become the property of John. The persons in the mind of the testator, as shown by these three sections, were his widow, for whom he wished to provide for life, his son John and his daughter Margaret. The gift of the life estate was the reason for postponing the taking of possession by Margaret and John of their respective tracts. No reason is apparent from the will, considered as a whole, for postponing the vesting of the remainders. By the fourth and fifth sections the son Andrew and the daughter Cora were bequeathed $1,000 each. No bequest of personal property was made by the will to either John or Margaret. There was no devise of real estate to either Andrew or Cora. A section of the will was devoted to each child, and there was no reference to any child in any other section except the sixth, by which it was provided that the tract devised to Margaret should pass to John, if Margaret died before her mother.
The appellant contends that the words ‘to have,’ in the phrase ‘to have and take possession,’ in the sixth section, denote the time of the vesting of the remainder, while the appellees argue that they have reference solely to the time of taking possession. The identical phrase also appears in the seventh section, which devised the remainder in the other tract to John. In both sections the words ‘have’ and ‘take’ are followed by a single object, ‘possession.’ It is not uncommon to find such words as ‘to have and to hold,’ ‘to have and to take,’ ‘to take effect and be enjoyed,’ and similar expressions, in instruments, especially wills, where the same intention could be conveyed by the use of the words ‘to have,’ or ‘to take effect,’ or ‘to be enjoyed,’ without the use of additional words.
[2][3] Blackstone defines a remainder as an estate ‘limited to take effect, and be enjoyed after another estate is determined.’ 1 Sharswood's Blackstone's Com. bk. 2, p. 163. There must be a precedent particular estate in order to support a remainder. The term ‘remainder’ is relative, and implies a prior disposition of some part of the estate; but the particular estate and the remainder constitute one whole, are carved out of the same inheritance, and may both vest at the same time and subsist together. It does not follow that an estate in remainder which is subject to a condition is a contingent remainder. The condition may be precedent or subsequent. If the latter, the estate vests immediately, subject to being divested by the happening of the condition; if the former,...
To continue reading
Request your trial
-
Spiegel Estate v. Commissioner of Internal Revenue
...398, 399, 75 L.Ed. 996. The court below also cited Haward v. Peavey, 128 Ill. 430, 21 N.E. 503, 15 Am.St.Rep. 120, and Baley v. Strahan, 314 Ill. 213, 145 N.E. 359, involving wills and recognizing the contingent character of the remainders in the Klein 12 Webster's New International Diction......
-
Liesman v. Liesman
...Ill. 47, 159 N. E. 217;McClure v. McClure, 319 Ill. 271, 149 N. E. 748;Drager v. McIntosh, 316 Ill. 460, 147 N. E. 433;Baley v. Strahan, 314 Ill. 213, 145 N. E. 359;Himmel v. Himmel, 294 Ill. 557, 128 N. E. 641, 13 A. L. R. 608. A devise of a fee may be restricted by subsequent words in a w......
-
Martin v. Mccune
...of the death of the testator, the interest of each of the beneficiaries named in the sixth clause of the will vested. Baley v. Strahan, 314 Ill. 213, 145 N. E. 359;Carter v. Carter, 234 Ill. 507, 85 N. E. 292. The legatees entered into the immediate enjoyment of the estate by the bequest of......
-
Commissioner of Internal Revenue v. Spiegel's Estate
...and the property lies, support this conclusion. Haward v. Peavey, 128 Ill. 430, 439, 21 N.E. 503, 15 Am.St.Rep. 120; Baley v. Strahan, 314 Ill. 213, 217, 145 N.E. 359. * * * Nothing is to be gained by multiplying words in respect of the various niceties of the art of conveyancing or the law......