Beal v. Higgins

Decision Date21 June 1922
Docket NumberNo. 14618.,14618.
PartiesBEAL et al. v. HIGGINS et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Suit by E. L. Beal and another against Edna Susan Higgins and another. On an appeal by Paul J. Graham, guardian ad litem of infant defendants, from an adverse decree which was reversed and remanded, the circuit court entered a decree construing the will, from which defendants appeal.

Reversed and remanded, with directions.

Appeal from Circuit Court, Mercer County; William T. Church, judge.

Paul J. Graham, guardian ad litem, and George W. Werts, both of Aledo, for appellants.

Watson & Duvall, of Aledo (David I. J. Kadyk, of Aledo, of counsel), for appellees.

DUNN, J.

Ethzelda Higgins died on October 30, 1920, leaving a will, which was admitted to probate. Her executors filed their bill in the circuit court of Mercer county for a constructionof the will, and a decree was entered holding the will to be void and setting aside the probate of it. Upon an appeal of the infant defendants by their guardian ad litem this decree was reversed, and the cause was remanded to the circuit court, with directions to enter a decree in accordance with the views expressed in the opinion. Beal v. Higgins, 299 Ill. 229, 132 N. E. 542. The opinion then filed sets forth the will and the facts in the case, and announced the conclusion that the decree of the circuit court was erroneous in holding the will to be void because the devises in the fourth, fifth, and sixth clauses violated the rule against perpetuities. It was held that active duties were imposed upon the executors, who were made trustees by the last clause of the will, and that the second and third clauses of the will, together with the provisions of trust in regard to them, should be sustained.

When the cause was reinstated in the circuit court, the court entered a decree that the will was valid as to the first, second, third, and last clauses, but that the fourth, fifth, and sixth clauses were in violation of the rule against perpetuities and therefore void; that by virtue of the second clause Gilbert T. Higgins, the surviving husband of the testatrix, was entitled to the rents and profits of her property, both real and personal, during his life; that the beneficiaries named in the third clause constitute a class, the members of which will be determined at the expiration of the life estate of Gilbert T. Higgins, from which time the trustees shall divide the rents and profits derived from the property of the testatrix equally among the persons named in the third clause, or the survivors of them, including any children of Maggie Higgins in being prior to the death of Gilbert T. Higgins, during their lives, and, upon the death of any member of the class after the death of Gilbert T. Higgins, then the rents and profits shall be equally divided among the survivors of said class until the last member thereof shall die; that the trustees are invested with the title to all the property of the testatrix in fee simple, and should pay the net income from all the property of the testatrix in accordance with the previous findings; and that at the death of the last surviving member of the class created by clause 3 of the will the fee-simple title to all the property shall be indefeasibly vested in the heirs at law of the testatrix then living, as determined by the laws of intestate succession in force at the death of the testatrix.

The decree is erroneous. It was held on the former appeal that the terms of the second and third clauses were valid and should be carried out, together with the provisions of the trust in regard to them. The rest of the will was of no effect. The second clause gave to Gilbert T. Higgins, the surviving husband, the use, occupation, rents, and profits of the real estate and the net income of the personal estate for his life. The third clause gave the use, occupation, rents, and profits of the real estate, after the death of Gilbert T. Higgins, together with all the net income of the personal estate after his death, to the testatrix's son, ...

To continue reading

Request your trial
11 cases
  • Dahmer v. Wensler
    • United States
    • Illinois Supreme Court
    • October 22, 1932
    ...Dahmer and Charles Wensler are, in each of the two instances, to a class, and they take per stirpes and not per capita. Beal v. Higgins, 303 Ill. 370, 135 N. E. 759;Palmer v. Jones, 299 Ill. 263, 132 N. E. 567;Dollander v. Dhaemers, 297 Ill. 274, 130 N. E. 705, 16 A. L. R. 8. It followsfrom......
  • Schroeder v. Benz
    • United States
    • Illinois Supreme Court
    • November 26, 1956
    ...8. Since that time, we have consistently favored per stirpes distribution. Palmer v. Jones, 299 Ill. 263, 132 N.E. 567; Beal v. Higgins, 303 Ill. 370, 135 N.E. 759; Dahmer v. Wensler, 350 Ill. 23, 182 N.E. 799, 94 A.L.R. 1; Condee v. Trout, 379 Ill. 89, 39 N.E.2d 350. Hence, it is settled i......
  • First Nat. Bank of Chicago v. Cherrier
    • United States
    • United States Appellate Court of Illinois
    • July 9, 1941
    ...the testator's sister. In that case the will showed the testator's intention was to divide the property in halves. In Beal v. Higgins, 303 Ill. 370, 135 N.E. 759, 761, the gift was “to my son, William Everett Higgins, to my daughter, Myrtle I. Higgins, and the children of my daughter-in-law......
  • Griffin v. Griffin
    • United States
    • Illinois Supreme Court
    • September 27, 1963
    ... ... (Schroeder v. Benz, 9 Ill.2d 589, 138 N.E.2d 496; Beal v. Higgins, 303 Ill. 370, 135 N.E. 759.) Thus, the proceeds of the sale of the farm for the remainderman's 2/3 interest would be divided into six ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT