Barker v. Walker

• Decision Date: 11 May 1949
• Docket Number: No. 30935.,30935.
• Parties: BARKER et al. v. WALKER et al.
• Court: Illinois Supreme Court

403 Ill. 302

85 N.E.2d 748

BARKER et al.

v.WALKER et al.

No. 30935.

Supreme Court of Illinois.

March 24, 1949.

Rehearing Denied May 11, 1949.

Appeal from Circuit Court, Greene County; Clem Smith, Judge.

Action by Carmaleen Barker and others against Aletha Walker and others to partition realty wherein Ethelyn Cuddy intervened and filed a counterclaim. From a decree for the intervenor, plaintiffs appeal.

Affirmed.

Gilbert K. Hutchens and Jack McDonald, both of Carrollton, for appellants.

Mark O. Roberts and Hugh J. Graham, Jr., both of Springfield, for appellee Ethelyn Cuddy.

SIMPSON, Justice.

A freehold being involved, appellants, Carmaleen Barker and Allie C. Smith, appeal directly to this court to reverse a decree of the circuit court of Greene County in favor of the appellee Ethelyn Cuddy.

Partition was sought in the Greene County circuit court of several tracts of real estate located in the counties of Greene, Morgan and Scott, respectively. The complaint alleged that Carmaleen Barker, an only child of Buell L. Cuddy, deceased, a son of Ada B. and Martin T. Cuddy, both deceased, and Allie C. Smith, their daughter, each owned an undivided one-third interest in said lands, and that Aletha Walker, Hazel Henry and Glenna Gordon, children of Fulton Cuddy, deceased, also a son of Ada B. and Martin T. Cuddy, each owned an undivided one-ninth interest therein.

Ada B. Cuddy was the widow of Martin T. Cuddy, deceased, and the daughter of Fletcher F. Clark, deceased. Martin T. Cuddy and Ada B. Cuddy, his wife, had three children, viz.: Fulton Cuddy and Buell Lester Cuddy, sons, and Allie C. Smith (nee Cuddy) a daughter. Carmaleen Barker is the daughter by a former marriage, and Ethelyn Cuddy is the widow, of Buell L. Cuddy who departed this life intestate on May 1, 1944, prior to the death of his mother, Ada B. Cuddy, who died January 10, 1947, and subsequent to the death of his father, Martin T. Cuddy, who died in 1938. No administration was had on the estate of Buell L. Cuddy, deceased. More than ten months had elapsed between his death and the filing of this suit, and appellee, his widow, did not at any time elect to take dower by filing a written instrument as provided by statute.

There is no question concerning the interests and relationships as set out in the complaint, except that Ethelyn Cuddy claims she is entitled to a one-third interest in the portion of the premises owned by Buell L. Cuddy, her husband, at the time of his death, which would give her a one-ninth interest in the whole. She was not made a party to the suit but was permitted to intervene and to file a counterclaim setting up her claim as aforesaid, after the premises had been sold and a decree of distribution entered. The original decree had found the interests of the parties as alleged in the complaint, but upon the intervention of Ethelyn Cuddy the decree was changed finding that her husband had a vested remainder in the premises and that she was the owner of an undivided one-ninth of the whole or an undivided one-third of the interest owned by her husband at the time of his death.

The widow of Fulton Cuddy made a similar claim to that of Ethelyn Cuddy but later withdrew it because she had accepted the provisions made for her under the will of her deceased husband and had made settlement with his children.

January 31, 1912, Fletcher F. Clark, a widower, father of Ada B. Cuddy, conveyed to her an undivided one-half of the Scott County real estate for and during the period of her natural life and at her death to the heirs of her body, reserving in substance a life estate in himself. The other undivided half of these premises was owned by Martin T. Cuddy, husband of said Ada B. Cuddy. January 29, 1914, said Fletcher F. Clark and his then wife conveyed to said Ada B. Cuddy the real estate located in Morgan County for and during the period of her natural life and at her death to the heirs of her body, reserving in substance a life estate in himself. After the grantee's name, the description of the premises, the provisions designating the life interest of the grantee with the remainder to the heirs of her body, the provision reserving the life estate in the grantor, and the provision releasing and waiving all rights under and by virtue of the homestead exemption laws, each deed contained in substance the following:

‘The object and intention of this deed is to convey to the grantee herein, Ada B. Cuddy, a life estate in the above described lands, the remainder to the heirs of her body in fee simple.’

By the will of Martin T. Cuddy there was devised to his widow, said Ada B. Cuddy, for life, his undivided one-half interest in the lands in Scott County by the following provision in his will:

‘3rd. I also give, devise and bequeath to my beloved wife all the real estate of which I may die seized or to which I may be entitled either in possession, reversion, remainder or otherwise to have and to hold for and during her natural life and at the time of her death said real estate shall descend to my three children, Fulton Cuddy, Buell Lester Cuddy and Alice Cecilla Smith, share and share alike as their absolute property for ever and in case of the death of either of said children prior to my decease I hereby direct that their share shall descend to their bodily heirs.’

The issues are all raised by the pleadings which it will not be necessary to recite in detail. Appellants contend that under the foregoing instruments Buell L. Cuddy had but a contingent remainder in all of the premises and by reason of his death prior to that of his mother, Ada B. Cuddy, he never became seized of an interest in any of the real estate in question and therefore his widow, Ethelyn Cuddy, had no right of dower in any of the premises. They further say she could not take under the statute on descent because it applies only in cases where there is dower that can be waived.

On the other hand Ethelyn Cuddy contends that her husband, Buell Lester Cuddy, at the time of his death, owned a vested remainder or one-third interest in all of the premises, subject to the life estate of his mother, Ada B. Cuddy, and that one third of his interest descended to her by virtue of section 11 of the new Probate Act which became effective January 1, 1940. Ill.Rev.Stat.1947, chap. 3, par. 162. She says that the deeds, by the common law, would have created a fee tail in the premises and accordingly section 6 of the Conveyances Act, Ill.Rev.Stat.1947, chap. 30, par. 5, would operate, and under it Ada B. Cuddy became seized for her natural life only and the remainder passed in fee simple absolute to Buell L. Cuddy and the other living heirs of the body of Ada B. Cuddy, subject to being divested pro tanto should other children be born to her thereafter. Appellants claim this statute does not apply here because of the aforesaid words appearing in each deed after the waiver of the homestead exemption laws. They say those words do not constitute an habendum clause but are explanatory words giving the grantor's construction or meaning of the words previously used in the instrument.

Whether or not those words constitute technically an habendum clause, they follow a very definite granting portion of the deed, and, if inconsistent therewith, should not be permitted to destroy it. Coogan v. Jones, 278 Ill. 279, 115 N.E. 877. Where there are two irreconcilably repugnant clauses in a deed, the first of the two clauses will control. Law v. Kane, 384 Ill. 591, 52 N.E.2d 212;Hartwick v. Heberling, 364 Ill. 523, 4 N.E.2d 965. Any clause attempting to explain the granting clause must be consistent with it in order to be effective. Nave v. Bailey, 329 Ill. 235, 160 N.E. 605;Roof v. Rule, 348 Ill. 370, 180 N.E. 807, 84 A.L.R. 1047. The explanatory words, it will be noted, are ‘the remainder to the heirs of her body in fee simple.’ By the use of those words the grantor no doubt believed and intended them to be consistent with the granting clause. He explains by their use that the remainder is to go, not to her heirs generally, but to ‘the heirs of her body,’ and by adding at this place the words ‘in fee simple’ he does not show an intention to nullify the granting clause. Under the statute aforesaid, title does go to the heirs of her body in fee simple.

We believe the two deeds would have created an estate in fee tail at common law and therefore section 6 of the Conveyances Act applies. The operation of that section created in Ada B. Cuddy an estate in the deeded premises for her natural life only, with remainder in fee simple absolute to Buell L. Cuddy and his brother and sister. Moore v. Reddel, 259 Ill. 36, 102 N.E. 257;Sauls v. Cox, 394 Ill. 81, 67 N.E.2d 187.

We now consider the will of Martin T. Cuddy. Buell L. Cuddy survived the testator but died before the life tenant. After giving a life estate in the premises to his wife, the third clause of the will says: ‘and at the time of her death said real estate shall descend to my three children, Fulton Cuddy, Buell Lester Cuddy and Alice Cecilla Smith, share and share alike as their absolute property forever,’ and then provides that in case either shall die before the testator his share shall descend to his bodily heirs. The question is as to when the testator intended the remainders to vest in his...