Beaty v. Calliss

• Decision Date: 23 October 1920
• Docket Number: No. 13438.,13438.
• Citation: 294 Ill. 424,128 N.E. 547
• Parties: BEATY et al. v. CALLISS.
• Court: Illinois Supreme Court

294 Ill. 424

128 N.E. 547

BEATY et al.

v.CALLISS.

No. 13438.

Supreme Court of Illinois.

Oct. 23, 1920.

Suit by Clarence J. Beaty and others against James W. Calliss. From a decree for defendant, complainants appeal.

Affirmed.

Appeal from Circuit Court, Sangamon County; Frank W. Burton, judge.

Robert H. Patton and Graham & Graham, all of Springfield, for appellants.

John L. King and Barber & Barber, all of Springfield, for appellee.

CARTWRIGHT, C. J.

The appellants filed in the circuit court of Sangamon county their bill in equity to quiet their title to 80 acres of land and for partition. The bill alleged that Bertha E. Beaty acquired title to the land by devise from her grandfather, Randolph M. Calliss; that she died intestate, leaving the appellants her heirs at law, and that the appellee, James W. Calliss, claimed an interest in the land by virtue of an executory devise, but his claim was unfounded, the bill was answered, and the issue referred to the master in chancery, who took the evidence and reported the same with his conclusion that the premises were owned in fee simple by the appellee, subject to the dower of the appellant Clarence J. Beaty, surviving husband of Bertha E. Beaty. The cause was heard on exceptions to the report, which were overruled, and a decree was entered finding James W. Calliss to be the owner in fee simple, that Clarence J. Beaty was entitled to dower in the land, and that none of the complainants had any other right, title, or interest therein. The decree provided for an assignment of dower, and that in such assignment Beaty should have the dwelling house, if he desired it.

Randolph M. Calliss was the owner of the land, and he died on December 13, 1897, leaving a last will and testament, made on March 9, 1897. The third clause of the will, which devised the land, was as follows:

‘Third. I give, devise and bequeath to my said wife, Elizabeth A. Calliss, to have and to hold for her use and benefit during her natural life, my farm, described as follows: The south half of the southeast quarter of section thirty-one (31), township thirteen (13), north, range five (5), west of the third principal meridian, situated in the county of Sangamon and state of Illinois, and direct that should use so much of the proceeds therefrom as may be necessary to keep the taxes thereon paid and the buildings and improvements thereon in good repair. And at the death of my said wife the said farm shall descend to my granddaughter, Bertha Eva Williamson, but it is my will that my said granddaughter shall not assume control of said premises until she attains the age of twenty-one years, and if my said wife shall die before my said granddaughter shall reach such age of twenty-one years, I direct that a trustee be appointed to control and manage such farm for the benefit of my said granddaughter. If, however, my said granddaughter should die before my said wife or subsequent thereto, leaving her surviving no child or descendants of such, then I direct that my said farm shall descend to my brother, James W. Calliss, if he should be then living; if not, I direct that the said lands be sold at public or private sale, as may seem most advantageous, and the proceeds thereof divided among the children of my said brother, James W. Calliss, then living, in equal shares.’

When the mill took effect Bertha E. Williamson was 4 years of age, and at the death of Elizabeth A. Calliss, on April 1, 1907, when the life estate came to an end, she was 14 years old. From that time until she was [294 Ill. 427]21 years of age she was entitled to the income of the land, but the management and control were by the will placed in a trustee. At the termination of the trust she assumed control and possession of the land and was married to Clarence J. Beaty on November 25, 1918. She died intestate on September 27, 1919, leaving no issue surviving her, and leaving the appellants, her husband, Clarence J. Beaty, and her father, brothers, and sisters, as her heirs at law.

The principal question is whether the executory interest limited upon the death of Bertha E. Beaty leaving no surviving child or descendants of such was intended by the testator to take effect only upon the happening of the contingency during the trust prior to her attaining the age of 21 years, when she was to come into possession and control of the premises, or upon her death at any time under the conditions stated in the will. She was 4 years of age when the will took effect, and the life tenant was 59 years of age, so that it was quite natural that the testator should have contemplated, as he in fact did, that there might be a period after the termination of the life estate during which the devisee would be under 21 years of age, and he provided that if there should be such a period a trust should be created for the management and control of the property. There was such an intervening period, and the argument for the appellants is that when the devisee came into possession and control of the property she was invested with the feesimple title.

While the purpose of construction is to ascertain the intention of the testator, it has been settled by judicial construction that certain provisions manifest such intention. One such case is where there is a devise of a future interest to take effect in possession upon the termination of an intervening particular estate, and it is held that the intention in such case is that the gift over shall take effect if the contingency happens at any time during the existence of the particular estate, unless there is something in the will showing that the testator referred to a later date. Lachenmyer v....